AI Structured Summary
Not yet generated for this judgment
Judgment
N. Kumar, J.—These two writ petitions are preferred challenging the order passed by the Central Administrative Tribunal, Bangalore Bench, declaring the empanelment and selection of third respondent as void, invalid, arbitrary and illegal and consequently quashing both the empanelment of the third respondent as a candidate eligible for consideration and Annexure-A1-notification appointing him as DG 85 IGP. The petition in W.P.8788/12 is preferred by the State Government and W.P.9655/12 is preferred by the third respondent in the said writ petition challenging the said order. For the purpose of convenience, the parties are referred to as they are arrayed in the original application.
FACTUAL MATRIX
The applicant is an IPS officer joined the Indian Police Service, in the year 1977. He has a careers spanning 34 years and he is now working as DGP Commandant General Home Guards, Director of Civil Defence and Director of General Fire and Emergency Services, Bangalore. The third respondent joined the Indian Police Service with effect from 16.7.1978. He has a career spanning 33 years and on the date of application he was working as Director General and Inspector General of Police from 30.11.2011.
Sri. N. Achuta Rao, who was appointed as Director General and Inspector General of Police on 05.07.2011, retired on 30.11.2011, on reaching the age of Superannuation. The applicant is the senior most Police Officer.
The State Government vide letter dated 02.11.2011, forwarded a proposal to the Union Public Service Commission (for short hereinafter referred to as UPSC) to convene a meeting of the Empanelment Committee for recommending a panel to enable them to select new incumbent in place of the present DG and IGP of the State, who was due for retirement on 30.11.2011, in terms of the judgment of the Apex Court in the case of Prakash Singh and Others Vs. Union of India (UOI) and Ors, The State Government sent five names in the order of seniority.
The UPSC in compliance with the directions of the Supreme Court in Prakash Singh''s case convened a Empanelment Committee Meeting to prepare a panel for appointing of DG and IGP of Karnataka Cadre which was held on 30.11.2011. The Empanelment Committee considered the candidature of 5 eligible officers forwarded by the State Government. The Committee took into account the experience of the officers in the core areas of policing such as law and order, maintenance, crime investigation, administration etc., along with experience in the fields of vigilance/intelligence/training etc. On the basis of the above assessment, the Committee prepared a panel consisting of the names of three officers as suitable for appointment to the post of DG and IGP of Karnataka. Thereafter, they communicated the said names to the Government.
The Chief Minister, after considering the aforesaid names, appointed the third respondent as DG and IGP of police (Head of Police Force), Karnataka, Bangalore in the Apex Scale of Rs.80,000/- with immediate effect and until further orders vice Sri. N. Cachucha Rao, IPS retiring from service on 30.11.2011. It is this order of appointment and Empanelment made by the UPSC which was challenged by the applicant by filing an application before the Central Administrative Tribunal, Bangalore.
In the application filed, the applicant has set out in detail the facts which would disentitle the third respondent from being empanelled and considered for the aforesaid post. It was also contended that the said appointment is contrary to the judgment of the Apex Court in Prakash Singh''s case. It is graphically set out in the petition the haste with which the UPSC finalized the names for empanelment and also the haste with which the Chief Minister appointed the third respondent to the said post. The main ground urged is the finding of the National Human Rights Commission (NHRC) regarding human rights violations of villagers by the Special Task Force (STF), Karnataka commanded by the third respondent, which included (i) illegal informal detention of male and female villagers, (ii) brutal and dehumanising torture of male and female villagers, and (iii) stripping, debasing and rape of women and (iv) the representation by Vimochana to His Excellency the Governor of Karnataka, highlighting the various crimes committed by the Karnataka STF under the commandership of Respondent No.3. He also refers to several other incidents. There was no meaningful appraisal by the UPSC of the service records and other materials. The State Government has patronized the third respondent. They did not take note of the human rights violation by STA force, which is commanded by the third respondent. A copy of the representation made by him to the National Commission for Minorities and also the copy of the order dated 22.08.2008 by the NHRC to the IGP, Grievances Human Rights, Police Housing and Welfare were also produced to substantiate those allegations.
On service of notice in the said proceedings, the State contested the matter by filing detailed statement of objection. They contend that the panel recommended by the UPSC contains the name of the applicant, one Sri. Lal Rokhuma Pachau and the third respondent. Since UPSC had empanelled the name of the third respondent as suitable for appointment to the post of Director General and Inspector General of Police, Karnataka, the State Government had the power to select any one of the three officers. In the opinion of the State Government, since the third respondent is a fit person to hold the post of Director General and Inspector General of Police, it selected the third respondent. When the selection is made by the Competent Authority, the same cannot be interfered with. The selection of a particular officer/candidate out of an empanelment cannot be challenged except on the ground of malafides or serious violation of the statutory rules. The Hon''ble Supreme Court in Prakash Singh''s case has given the discretion of selection to the State Government. Therefore, the selection of the State cannot be faulted. No firm foundation is laid in the pleadings to establish the ground of malafides. Hence, the ground of malafides is liable to be rejected. They have traversed all other allegations made in the petition.
Third respondent filed an independent statement of objection referring to the human rights issue raised by the applicant. It was contended that the third respondent has not been indicted in the enquiry, conducted by the Panel, constituted by the NHRC, headed by the Hon''ble Justice Sadashiva. The Hon''ble Justice Sadashiva Commission was appointed to look into certain allegations made by certain individuals regarding violation of the human rights by the Karnataka and Tamilnadu Joint Task Force. The Commission has given its report in 2003 to the NHRC after detailed and prolonged enquiry. Specific allegations were made against the third respondent and the Panel has also given its report that these allegations have not been proved. If at all, any allegations made, were proved and had indicted the third respondent and finally if the National Human Rights Commission had accepted the report of the Panel, headed by Hon''ble Justice Sadashiva, the NHRC would not have kept quiet and would have forwarded a copy of the report to the State Government or the Central Government along with the recommendations to take appropriate actions against the third respondent. Nine years have lapsed since then, and as the NHRC has not informed either the State Government or Central Government, that the third respondent is indicted in the enquiry conducted by the Panel, it only shows that the allegations made by the applicant are false and baseless. He has also traversed all other allegations in detail. It is further stated that regarding the doctrine of command responsibility, in the meeting held between the Chief Minister of Karnataka and Tamilnadu on 10.04.1993, at Fort St.George, Chennai, it was decided that the Karnataka and Tamilnadu Task Forces should work jointly under the Commandership of Sri. Walter Devaram, the then ADGP, Law and Order, Tamilnadu State. The third respondent was appointed as Deputy Commander of Joint Task Force consisting of Karnataka and Tamilnadu Task Forces. The third respondent was only a Deputy Commander and the Commander of the Joint Task Force was Sri. Walter Devaram, the then ADGP, Law and Order, Tamilnadu. He was working under the supervision and direction of the Commander of the Joint Task Force Sri. Walter Devaram. Insofar as his work in Karnataka is concerned, he was working under the supervision, direction and control of the ADGP, Law and Order and DGP of the State. Two officers have worked as ADGP, Law and Order, as Commander to STF and have supervised, controlled and directed the work performed by the respondent. If the command responsibility is accepted, then the four officers, who worked as DGPs'' and two Chief Ministers under whose control the Police Department worked during the tenure of the third respondent will have to share the responsibility for any blame regarding the performance of the Task Force. A number of Junior officers were functioning in different camps, which were hundreds of kilometers away from the Head quarters of the third respondent. The Junior Officers were operating at their discretion in their respective areas and these Junior officers also have to share the command responsibility. As the operation conducted by the third respondent was a civilian operation, the doctrine of command responsibility, which relates to military operation, is not applicable. He has set out various assignments, which he has undertaken in his career of 33 years as IPS Officer and various awards and recognition which has been confirmed during the said period. Therefore, he contends that as he is more meritorious than the applicant, he was selected to the said post and therefore, he sought for dismissal of the said petition.
Fourth respondent has also filed a detailed reply setting out the various steps which they took before calling the meeting dated 30.11.2011 for empanelment of the suitable persons for being appointed as DG and IPS of the State of Karnataka. The UPSC after examination of the proposal sent by the State observed that the Hon''ble Supreme Court vide their letter dated 22.9.2006, in the case of Prakash Singh have directed that once an Officer has been selected for the post of DGP, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The tenure of DGP also came up for consideration before the Hon''ble Supreme Court on 06.12.2010, wherein while taking into cognizance the State Government''s undertaking that they will consult the Commission from time to time in the matter of appointment of DGP, adjourned the case on the said aspect for four weeks to enable the learned counsel for the State to take instructions. Thereafter, the Commission vide letter dated 18.11.2011, requested the State Government to clarify whether they have taken any leave from the Hon''ble Supreme Court for not extending the tenure of present DG and IGP for two years. The State Government vide their letter dated 19.11.2011, clarified that in pursuance of the order of the Hon''ble Supreme Court of India dated 06.12.2010, in Prakash Singh''s case, an affidavit was filed by them on 10.01.2011, and in the said affidavit it was submitted that they would abide by the direction of the Hon''ble Supreme Court to be passed in the case, on the basis of the submissions to be made by the Central Government regarding amendment of the relevant rules and regulation dealing with the cadre management rules in the matter of tenure of DG and IGP of the State. They also intimated that the Government of India was yet to issue any amendment to the relevant rules and also informed that the Supreme Court had also not issued any further instructions in this regard. Therefore, they intimated that in the said circumstances it was not required to seek any leave from the Supreme Court. They contend that they took into account the experience of the officer in the core areas of policing, such as Law and Order, Maintenance, Crime investigation, Administration etc., along with the experience in the field of Vigilance/Intelligence/Training. On the basis of the above assessment, the Committee prepared a Panel consisting of three names suitable of appointment to the post of DG and IGP of Karnataka and forwarded the same to the State of Karnataka in terms of the judgment of the Apex Court in Prakash Singh''s Case and no fault could be found with the process of selection, which they have undertaken and therefore, they contend that there is no merit in this writ petition.
FINDINGS OF THE TRIBUNAL
The Tribunal after considering the aforesaid
pleadings and material on record, formulated four points for consideration. Thereafter, referring to a plethora of judgments relied upon by the parties, the Tribunal held the Government of Karnataka or any of its organs has not placed the materials relating to the findings of the National Human Rights Commission in the official channels for reckoning any officer, particularly the third respondent-ACRs. May be as the State was fighting a war against accountability, which they probably felt that they could not win, they did not include these adverse entries in the files of these officers, and they would have found it expedient not to place these materials before the concerned authorities. The Chief Secretary of the Government of Karnataka had a solemn duty vested in him to be apprised of the factors and facts before he issued the integrity certificate of the concerned officials. But even this glaring incident in the professional career of the third respondent must have been reported to the Union Public Service Commission, UPSC seems to have assessed the merits of the candidates only on the basis of what was placed before it. The NHRC stipulations and findings were not apparently placed before the UPSC as the proceedings of the UPSC do not contain any mention or explanation of such adverse findings. Going with the reply of the UPSC, all that they examined was only the length of service of the candidates and their related professional experience and going by the general explanation they categorised persons on the basis of merit, with the applicant coming first in the list of merit. The UPSC has made the empanelment without noticing the glaring inadequacies on the part of the third respondent. It is to be reflected with some regret that the first respondent deliberately suppressed the material facts from the UPSC even though the full picture was available to it and had been in circulation within itself for years together. Therefore, it must be held that Chief Secretary, the Home Secretary and the DPAR Secretary who were concerned with the matter throughout, had failed in their jurisdiction to place before the empanelment authority, the UPSC, the full picture regarding the third respondent.
Dealing with the question of commandant responsibility, it held the third respondent claimed as he was only a Deputy Commander under Shri. Walter, an officer of Tamilnadu cadre, his responsibility is diminished, except in cases wherein his personal presence was detected. But, at least in cases wherein his personal presence is acknowledged, his responsibility is acknowledged as still continuing. The relative failure of the NHRC notwithstanding the State Governments of Karnataka and Tamilnadu had a sacred duty cast on them to find out whether police excesses resulted in such a large number of people losing their lives, women raped, several persons tortured and electrocuted and several innocent persons languishing in jail for years. As the panel found a close nexus existing between certain undesirable branch of society along with the police rendering continuance of the civilised society difficult, if impossible, therefore, there was an unapparent juncture of unanimity in sweeping of the dust under the carpet. Such a sweeping the dust under the carpet has resulted in the concerned officers of Karnataka Govt. suppressing material facts from the gaze of the UPSC. The UPSC, atleast with regard to the third respondent, did not have the benefit of actual scenario relating to the third respondent. The State Government seemed to have deliberately withheld the initial information of NHRC findings and the relative matrix from the critical gaze of the UPSC. Therefore, the empanelment itself of the third respondent is without benefit of the application of mind as deliberately integrity certificate was issued and crucial aspects of professional carrier of an officer were withheld knowingly by the officers of the State Govt. It has to be seen as to whether it is an innocent ignorance or as a part of deliberate manipulation, as the Chief Minister had taken the empanelment at face value and had chosen the last among the empanelled as the more suited which is in his subjective satisfaction is correct according to him.
It proceeded to hold the empanelment is vitiated on the ground of non-disclosure of complete information, material and data whether favourable or adverse. The empanelment of the third respondent was without the UPSC having the benefit of full information regarding the third respondent and therefore, his empanelment was void and invalid. Consequently, the impugned order appointing him as the DG and IGP is also void. Accordingly it was quashed. Aggrieved by the said order both the State as well as the third respondent have preferred these two writ petitions.
After hearing all the parties, by an order dated 30.3.2012 this Court dismissed both the Writ Petitions. Aggrieved by the said order, the third respondent as well as the State preferred SLP (C) No. 13144/2012 and SLP (C) 12193/2012 before the Apex Court. In the meanwhile, the State appointed the applicant as the DG and IGP of Karnataka. The Apex Court after hearing the parties, by its order dated 24.4.2012 granted leave and they were numbered as Civil Appeal No. 3799/2012 and Civil Appeal No. 3800/2012. It appears, before the Apex Court, the State and the third respondent produced the panel''s report and the final report passed by the NHRC and contended that there is no adverse comment personally against the third respondent much less his indictment concerning the atrocities committed against the tribals either in the report or the proceedings of the NHRC. Accepting the said contention the Apex Court held, the presumed finding and the observations of the High Court in that regard appears to be quite unfounded. Dealing with the relevancy of the report of the panel and the proceedings of the NHRC for preparation of the panel by the UPSC, the Apex Court refrained from making any final pronouncement on the issue as they were proposing to remit the case to the High Court after setting aside the impugned judgment. The High Court was called upon to consider the entire matter afresh in the light of the panel''s report and the proceedings of the NHRC. Further, the Apex Court made it clear all observations made by them in the said order are of tentative and prima facie nature. In the light of the panel''s report and the proceedings/orders of the NHRC, the High Court shall be at liberty to form its own view both on the question whether in the panel''s report and/or the proceedings/orders of the NHRC there is any adverse comment on Dr. Bidari and in case it comes to the finding that there are no adverse comments against him in the reports and the proceedings/orders, whether those materials would still be relevant for consideration by the UPSC for preparing the panel for appointment as DGP, Karnataka. All contentions from both sides were expressly left open.
It is after such remand, we have heard the learned counsel for the parties.
RIVAL CONTENTIONS
Sri. S. Vijay Shankar, the learned Advocate General of Karnataka, assailing the impugned order contended that the State Government has strictly followed the procedure prescribed by the Apex Court in Prakash Singh''s case. They have prepared a list of IPS officers in the rank of DGP and sent the same to UPSC along with their service records and other documents as required under law. Thereafter, the UPSC on consideration of the aforesaid materials, empanelled three names among the five names sent to them and communicated the same to the State Government. The Chief Minister in his discretion keeping in mind the suitability of the person to the said post has chosen the third respondent and appointed him. Therefore, neither the empanelment is vitiated on any ground nor is the appointment made by the Chief Minister contrary to law. As both of them have not violated the procedure prescribed under law, this Court in its jurisdiction of judicial review cannot sit in judgment over the decision of both the UPSC as well as the Chief Minister.
The learned Advocate General further submitted that the service conditions of the petitioner and the applicant is governed by the All India Service Act, 1951. Section 3 deals with regulation of recruitment and conditions of service which in turn provides for making rules for the regulation of recruitment and the conditions of service of persons to an All India Service. By virtue of the power conferred under the said rules, the Central Government has made the All India Services (Performance, Appraisal Report) Rules, 2007. The said rules defined what the performance appraisal report is, performance appraisal dossier, Form of the appraisal performance reports and schedule 1 clearly sets out the documents to be maintained in the performance appraisal dossier. Clause 5 of schedule 1 deals with appreciation letters from Government or Secretary or head of the department or Special Bodies or Commissions. It does not include the NHRC report. When the said rules framed under the Act do not insist for furnishing of the NHRC report, there was no obligation on the part of the Government to have placed the said report before the UPSC. Relying on the judgment of the Apex Court in Indian Administrative Service (S.C.S.) Association, U.P. and Others Vs. Union of India (UOI) and Others, , it is contended that the aforesaid rules have statutory force and what is not prescribed under the law need not be placed. He also relied on the passages from the judicial review of administrative action and Administrative law by Dr. Smith and Sir William Wade and contend there was no obligation cast on the Government to place the said report before the UPSC. It was not a relevant material which UPSC ought to have considered before the empanelment. Therefore, he submits that the grounds on which the Tribunal has interfered with the order of appointment is without any basis and requires to be set aside.
Further he contended by virtue of the power conferred u/s 13 of the Protection of Human Rights Act, 1993, the commission has constituted the panel. Section 16 of the Act provides for conducting an enquiry. If the commission wants to consider it necessary to enquire into the conduct of any person or is of the opinion that the reputation of any person is likely to prejudice the effect of the enquiry, such person should have been heard. Section 17 deals with enquiry into the complaints and Section 18 deals with steps after an enquiry. Admittedly, no enquiry as aforesaid contemplated is initiated by the Commission against any of the persons of the task force much less against the persons who are heading the task force. Therefore, it is only a finding recorded after such enquiry would be a relevant factor. Even in respect of command responsibility no enquiry was initiated and therefore, on the contrary, on the payment of compensation to the victims by an order dated 17.06.2009 the commission closed the case. Therefore, seen from any angle the said panel report/or the proceedings or the orders passed by the NHRC are not relevant material to be considered by the UPSC at the time of empanelment. Therefore, he submitted that the empanelment is not vitiated at all.
Insofar as the appointment by the State Government is concerned, it is the prerogative of the Chief Minister to select a person among the empanelled candidates in whom he has trust and confidence which cannot be challenged in a court of law. Therefore, seen from any angle, there is no illegality in the appointment and the Tribunal has exceeded in its jurisdiction to interfere with the valid and legal order of appointment.
Sri S. M. Chandrashekar, learned counsel appearing for the third respondent adopting the arguments of the learned Advocate General contended that the tribunal had no jurisdiction to go into the aspect of empanelment at all. In the notification dated 30.11.2011 when the applicant is also empanelled, he is not an aggrieved person. In the application filed challenging the appointment of the third respondent there is no prayer for setting aside the empanelment. What is challenged is only the notification dated 30.11.2011 appointing the third respondent. Therefore, the Tribunal exceeded in its jurisdiction to hold that the empanelment is vitiated. Further the Tribunal framed four issues. No issue regarding validity of the empanelment is framed. However at para 71 of its order it has declared that the empanelment is void and invalid. Therefore, he submits the impugned order passed by the Tribunal is one without jurisdiction and it requires to be set aside.
Once the UPSC empanels the names and sends it to the Government, absolute discretion is vested with the Government to select one among them to the post. In the absence of any malafides or bias, or violation of any statutory provisions is alleged, such an empanelment cannot be the subject matter of judicial review. In support of his contention he relied on a judgment of the Apex Court in the case of M.V.THIMMAIAH AND OTHERS Vs. UNION PUBLIC SERVICE COMMISSIONER reported in 2008 AIR SCW 229. Insofar ACR is concerned he submits the entries made in the ACR is sacrosanct. It is only those entries have to be looked into. When no adverse remarks are made in the ACR against the third respondent, no other person has a right to make any such adverse remarks and even if it is made in any other record, it is of no consequence and the same cannot be looked into. This aspect has been clearly missed by the Tribunal. He also contended the application was filed on 22.1.2011. Further, the tribunal has taken into consideration the letter of the Vimochana dated 7.12.2011 addressed to the Government and acted on the said letter and thus missed the focus and committed a serious error in taking into consideration extraneous matters.
He submitted a comparison of the service records of the applicant and the third respondent which clearly discloses that the third respondent has shouldered more sensitive responsibilities and that his work has been acclaimed not only by the State of Karnataka, but also by the neighbouring State of Andhra Pradesh. Twice, he has been awarded gallantry award by the President of India and in all respects he is more meritorious than the applicant. Seniority is no consideration for appointment, merit is the consideration, his appointment is legal and valid and do not suffer from any infirmity.
Sri Udaya Holla, learned senior counsel appearing for the applicant submitted in the light of law declared by the Apex Court in Prakash Singh''s case, the UPSC has to consider the length of service, very good record and range of experience. It is on that basis the Director General of police of State has to be selected for the job to head the State Police Force. Therefore, it is not mere ACRs. In that context in his length of service when third respondent was heading a task force as a commandant, his experience as such commandant of the task force is a factor which should be taken note of by the UPSC. The NHRC final report deals with three-and-half years of third respondent''s service as head of the task force and therefore that range of experience of the third respondent is vital factor which the State Govt. ought to have placed before the UPSC for its consideration.
The empanelment is not done under any statutory rules. It is done in terms of the judgment of the Apex Court. Otherwise, UPSC has no role to play in the selection process. Therefore, the argument that the Rules which provide for performance appraisal dossier if it does not include the NHRC final report is no ground to ignore the same so as to decide the range of experience i.e. the vital document which the UPSC has to consider before empanelment. Therefore, it is a relevant document strictly in terms of the Apex Court order which admittedly has not been placed before the UPSC at the time of empanelment which has vitiated the empanelment as rightly held by the Tribunal.
He further contended that it is too late in the day for the State and the third respondent to contend that this piece of material is not a relevant material to be placed before the empanelling committee. The question before the empanelling committee was whether persons to be empanelled are fit and suitable persons, to head the State police force. If only these cases of human rights violation had been brought to the notice of the UPSC, as a responsible authority, they would not have empanelled the name of the third respondent at all. Admittedly, it is not in dispute that this NHRC report was not produced before the UPSC and therefore, they had no occasion to consider the findings recorded by the Panel insofar responsibilities of the commandant of the STF of Karnataka is concerned.
Insofar as the contention that in the petition no relief is sought for setting aside the empanelment and what is sought is only the setting aside the order of appointment of the third respondent as the inspector general of police is concerned, he submitted the empanelment as well as the appointment were made on the same day i.e. 30.11.2011. There was no time gap. As the appointment is made after empanelment, the relief sought is for setting aside the said appointment which is a larger relief which includes the relief of setting aside the empanelment and therefore, the said argument is without any substance. Even otherwise if the entire application is read as a whole, it is clear the petitioner was challenging the empanelment.
27 Insofar as the contention that the applicant is not an aggrieved person as he has also been empanelled is concerned, the grievance of the applicant is, if the NHRC report had been taken into consideration by the UPSC, the third respondent would not have been empaneled at all in which event he being the senior most in the cadre and as he is qualified, the Government had no option except to appoint him as Inspector General of police. Therefore, the contention that he is not an aggrieved person is also without any substance.
The Panel report clearly shows the task force headed by the third respondent indulged in human rights violation, committed the acts of torture and thus the allegation of atrocities against the task force is held to be proved. Even the role of the third respondent is also specifically referred to. The way the third respondent commanded the task force consisted of about 1,000 persons is now documented in the said report. The UPSC was considering his claim for being appointed to head the police force of the State consisting of about 90,000 members. It is in that context the said report, its finding, its comments, remarks was a relevant factor/material to be taken note of by the UPSC before empanelment, which has not been done. Therefore, the Tribunal was justified in holding that the empanelment is vitiated.
The learned counsel appearing for the fourth respondent UPSC, Sri P.S. Dinesh Kumar, contended that they are outsiders to the selection process. They are brought into the scheme of things because of the judgment of the Apex Court in Prakash Singh''s case. When a request was made by the State for empanelment they brought to the notice of the State, that in terms of the judgment of the Apex court, the person who is already functioning as DG and IGP of Karnataka though he is reaching the age of superannuation on 30.11.2011, he is entitled to be continued in the said post for a period of two years from the date of appointment and as such, there is no vacancy and consequently, no empanelment can be made. But, the Government of Karnataka wrote back saying they are not agreeable for the said proposal made by the Apex Court. They have filed affidavits and they have moved the court for modification of the order, the matter has not come up before the Court. In those circumstances, the State contended that no leave of the Apex Court is required to go ahead with the appointment. Therefore, they requested the UPSC to convene a meeting for the purpose of empanelment. Left with no choice, in obedience of the order of the Apex Court, they called a meeting on 30.11.2011, considered the service records of the five candidates which was forwarded by the Government. After taking into consideration the various aspects and the law laid down by the Apex court in Prakash Singh''s case, they selected three names and communicated the same to the State Government. They have followed the procedure prescribed by the Apex court in Prakash Singh''s case and it cannot be found fault with.
POINTS FOR CONSIDERATION
In the light of the aforesaid facts, material on record and the arguments of the learned counsel for the parties, the points that arise for our consideration are as under :-
1) Whether in the Justice Sadashiva panel''s report and/the proceedings/orders of the NHRC, there is any adverse comment on Dr. Bidari?
2) Whether the report of Justice Sadashiva panel and NHRC report/order and the contents of the same would still be relevant for consideration by the UPSC for preparing the panel for appointment as DGP, Karnataka?
3) Whether the empanelment of the third respondent by UPSC without considering the report of the Panel and NHRC is vitiated and consequently, the order of appointment appointing the third respondent as DG and IGP of Karnataka is also vitiated?
PROCEDURE FOR EMPANELMENT
The process of empanelment as well as the appointment of the third respondent is not made in accordance with any statutory provisions. It is made in accordance with the directions issued by the Apex court in Prakash Singh''s case. Therefore, before we go into the validity or otherwise of the process of empanelment and the process of appointment of the third respondent, it is necessary to see what are the directions issued by the Apex Court in Prakash Singh''s case, and what is the procedure to be followed by the UPSC as well as the State.
The law which govern the policemen in the country is the Indian Police Act, 1861. After independence despite radical changes in the political, social and economic situation in the country, the condition of the Indian police was not given much needed attention. Therefore, the Government of India on 15.11.1977 appointed a National Police Commission (NPC) for fresh examination of the role and performance of the police as the law-enforcing agency to protect the rights of the citizens enshrined in the constitution. The terms and reference of the Commission were wide ranging. The terms of reference interalia required to examine the role, duties, powers and responsibilities of the police with reference to the prevention and control of crime and maintenance of public order; evaluate the performance of the system; identify the basic weaknesses or inadequacies; examine if any changes are necessary in the method of administration, disciplinary control and accountability; inquire into the system of investigation and prosecution; the reasons for delay and failure and suggest how the system may be modified or changed and made efficient, scientific and consistent with human dignity and for other purposes. After examination of those aspects the commission has submitted so far several reports. However, the recommendations of the NPC are not implemented. Therefore, the writ petitions were filed in the Apex court for directions to the Government of India to frame a new Police Act on the lines drafted by the commission, still nothing has been done.
The Apex Court felt having regard to the gravity of the problem, the urgent need for preserving and strengthening the rule of law, total uncertainity as to when police reforms would be introduced in spite of recommendations and reports by the committees, it thought it fit to issue appropriate directions for immediate compliance so as to be operative, till such time a new model Police Act is prepared by the Central Government and/ or the State Governments pass the requisite legislations. Accordingly, they issued directions for setting up of State Security Commission, minimum tenure of DG of police and other officers, separation of investigation, Police Establishment Board, Police Complaints Authority, National Security Commission etc. However, as we are only concerned with the selection and minimum tenure of DGP only that portion of the direction is extracted hereunder:-
Se1ection and minimum tenure of DGP. (2) The Director Genera1 of Po1ice of the State sha11 be se1ected by the State Government from amongst the three senior most officers of the Department who have been empane11ed for promotion to that rank by the Union Pub1ic Service Commission on the basis of their 1ength of service, very good record and range of experience for heading the po1ice force. And, once he has been se1ected for the job, he shou1d have a minimum tenure of at 1east two years irrespective of his date of superannuation. The DGP may, however, be re1ived of his responsibi1ities by the State Government acting in consu1tation with the State Security Commission consequent upon any action taken against him under the A11 India Services (Discip1ine and Appea1) Ru1es or fo11owing his conviction in a court of 1aw in a crimina1 offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.
Therefore, by virtue of the direction issued by the Apex Court, the responsibility of empanelling for promotion to the rank of Director General of police of the State vests in the UPSC. It is relevant to notice that till this direction was issued, it is the State Government which was considering who should be appointed to the said post. Therefore, the Union Public Service Commission would act as a selection committee which would empanel three officers amongst the senior most officers of the department of the same rank. For the said purpose they are expected to take into consideration:-
a) Length of service;
b) Very good record and
c) Range of experience
The second direction given is, once among the persons empanelled by the UPSC, the State Government appoints a person as Director General of Police, he shall have a service of two years from the date of the said appointment, notwithstanding the fact that before the expiry of two years his date of superannuation occurs. The third direction is though the tenure of the Director General of police is thus fixed as two years, it does not prevent the Government from relieving him of his duties if he is convicted in a court of law for a criminal offence or in a case of corruption or is incapacitated in discharging his duties. The removal has to be done of course in consultation with the said security commission.
This is the procedure which is now prescribed by the judgment which is being followed in the appointment of DGP and IG of Karnataka. One of the controversies is the very act on the part of the State calling for empanelment on the assumption that the then incumbent would relinquish his office on 30.11.2011 itself is not correct. Sri. Achut Rao reached the age of superannuation on 30.11.2011, but he had not completed two years of service from the date of his appointment. In terms of the Supreme Court order, he was entitled to continue till the expiry of two years. This portion of the Apex Court order was not accepted by the State. They made their intentions clear to the Apex Court. Still the Apex Court did not accept their contention. Applications are filed before the Apex court for modifications/directions not to insist on the said condition. No orders are passed. However, the said Sri Achut Rao agreed to demit office on 30.11.2011 which is clear from the office note. He also attended the meeting on 30.11.2011 convened by the UPSC as he was also a member of the UPSC. That is how the vacancy arose and appointment was to be made.
The said appointment is contrary to the law declared by the Apex Court in the said Prakash Singh''s case. In fact, in the appeals filed by the State and the third respondent, the Supreme Court took note of this illegality and called upon the State to justify the appointment. The State Government filed an affidavit. In fact the UPSC which was called upon to justify empanellment also filed its affidavit. On the affidavits being filed, the Apex Court in the aforesaid Appeals passed the following order on 18.4.2012 : -
We, however, 1eave it to the Specia1 Bench dea1ing with the case of Prakash Singh & Ors., Vs. Union of India and Ors., (Writ Petition (Civi1) No. 310 of 1996) to examine how far the action of the State Government in superannuating the previous incumbent from the post of Director Genera1 of Po1ice (DGP), Karnataka within 1ess than six months of his appointment to the post was in vio1ation of the Court''s direction and further how far the action of the State Government and the UPSC was in vio1ation of the Court''s direction in proceeding to prepare a fresh pane1 for appointment to the new vacancy and making appointment of a person se1ected from the pane1 prepared by the UPSC to fi11 up the post of Director enera1 of Po1ice (DGP), Karnataka fa11ing vacant due to the premature termination of tenure of the previous incumbent and what action, if any, is warranted against the State Government and the UPSC.
38 In view of the aforesaid order of the Apex Court, the said question is out of bounds of this Court and therefore not considered as rightly pointed out by the learned Advocate General.
It is not in dispute that 5 IPS officers in the rank of DGP were available in the Karnataka Cadre. Sri Lalrokhuma Pachau, IPS was working on deputation to Mizoram Government who in fact was not interested in coming back to Karnataka which he has made it clear in writing. Another among them Sri Kuchanna Srinivasan retired on 31.10.2011. In his place one Sri. R. K. Dutt, IPS, was given promotion and his name was also included as one among the eligible officers. An office note was put up stating that a panel of names is to be prepared and placed before the UPSC for empanelment. In fact, the office note on 28.10.2011 discloses that the selection for the post of DGP and IGP by the Hon''ble Chief Minister may be delayed since the meeting of the UPSC will be held on 30.11.2011. Thereafter, the State has to receive the proceedings of the meeting and select one among the IPS officers from UPSC list. Since Sri. Achuth Rao is retiring on 30.11.2011, meeting is held on the same day and due to shortage of time it is necessary to appoint an officer as DG and IGP on ad-hoc basis as the DG and IGP (Head of Police force) Karnataka. For the time being an approval of the Chief Minister was sought from one among the four officers in the rank of DGP to be put in additional charge. However, no such order was passed. In fact, on 19.4.2011 the Government of Karnataka addressed a letter to the Secretary of the UPSC forwarding the names of four IPS officers in the cadre of the DGP. However, at the insistence of the UPSC, even the records of unwilling candidate Sri. Lal Rokomov Pachav, were also sent. Admittedly, in the case of the third respondent, the NHRC report was not sent for consideration by the State Govt. It is in this context i.e. whether the said report is relevant and material for not for being placed before the UPSC for consideration, has to be decided. REPORT OF JUSTICE SADASHIVA PANEL AND REPORT/ ORDER OF NHRC
The case of the applicant is, the said report which has recorded a finding that the STF Karnataka commanded by the third respondent is guilty of committing atrocities on villagers and in particular women folk, mostly comprising tribal people was a relevant material which ought to have been placed for consideration before the UPSC. The State has taken a definite stand if that report had been placed before the UPSC and UPSC had taken into consideration the said report, it would have been a case of empanelment becoming void, for taking into consideration irrelevant material. Therefore, the question that arises is, whether the report is a relevant material or an irrelevant material? As stated above, the Apex Court in those appeals clearly held that the High Court shall now consider the entire matter afresh in the light of the panel''s report and the proceedings of the NHRC. Further, the Apex Court has made it very clear after looking into the said report and the proceedings, the High Court shall be at liberty to form its own view both on the question whether in the panel''s report and/or the proceedings/orders of the NHRC there is any adverse comment on Dr. Bidari and in case it comes to the finding that there are no adverse comments against him in the report and the proceedings/orders, whether those materials would still be relevant for consideration by the UPSC for preparing the panel for appointment as DGP of Karnataka. It is in the background of these orders we have to look into the report.
REPORT/ORDERS OF THE NHRC
A perusal of the order dated 18.6.1999 passed by the Commission discloses that the Commission had received a number of communications, both from individuals and from non-governmental organisations, concerning the activities of the Sandalwood Smuggler Veerappan and the efforts of the Joint Special Task Force (JSTF) of the States of Tamilnadu and Karnataka to apprehend him. A constant theme in the communications has been harassment caused to the villagers and tribals in the area of operation of the JSTF and the violation of their human rights. In the said order they have referred to 5 cases registered by the Commission. Case No. 534/22/97-98 refers to a letter dated 20.11.1997 from Justice V.R. Krishna Iyer, Former Judge of the Supreme Court in which it was stated that the human rights of innocent persons had been violated, as a result of atrocities perpetuated by the security forces of the two States of Tamilnadu and Karnataka in their effort to capture Veerappan. Justice Krishna Iyer added that large number of innocent people, particularly tribals were getting killed, maimed or raped. Case No. 79/10/1999- 2000 refers to a letter dated 17.5.1999 written to the Commission by Dr. D.M. Chandrashekar, the retired Chief Justice of Karnataka High Court drawing its attention to allegations of rape and atrocities in the area of Male Mahadeswara Hills by elements of the Special Task Force of Karnataka as reported in Deccan Herald of 12.5.1999. In addition to the letter by the aforesaid two eminent personalities of this country others also as set out in the said order complained about the atrocities. Then the said order also refers to its proceedings of 6th March 1998 where it observed as under : -
The Commission has consistent1y taken the position that, in enforcing the 1aw, the apparatus of State must, itse1f, act in ways that are fu11y in conformity with the 1aw. It has in ways that are fu11y in conformity with the 1aw. It has therefore pronounced itse1f repeated1y and c1ear1y on acts such as ''fake encounters'' which are contrary to the 1aw and therefore, in its view, unacceptab1e. It has a1so, in this connection, 1aid down specific procedures that shou1d be fo11owed to enquire into and bring to book those who are invo1vedin such acts. Its proceedings and directives, in this connection, are a matter of pub1ic record and have been transmitted to a11 State Governments for their observance. They wou1d be app1icab1e to the present case, as to any other. Likewise, the Commission has consistent1y taken the view that when acts of pub1ic servants, inc1uding those of the security forces, have resu1ted in the vio1ation of the human rights of innocent citizens of the country, and not 1east of its most vu1nerab1e sections, these acts must be scrupu1ous1y enquired into; further, when the resu1ts of enquiry so require, it must be ensured that appropriate compensation or other remedies are provided.
After referring to the various facts, complaints and the steps taken by them, ultimately the Commission observed that the Commission is of the view that it is essential for it to constitute a panel of two eminent persons, one drawn from the Judiciary and the other having experience at the highest level of the police to look into all relevant aspects of the allegations that have been made in the complaints that have been referred to above in those proceedings. Accordingly, the Commission headed by Justice M.N. Venkatachalaiah, the former Chief Justice of India and Chairperson of the Commission, Justice K. Ramaswamy, Former Judge of the Supreme Court and the two other members by their order dated 28.6.1999 constituted the panel and requested Justice A.J. Sadashiva, former Judge of the Karnataka High Court to be the Chairman of the panel. They requested Sri C.B. Srinivasan, former Director, Central Bureau of Investigation to be a member of the panel, (hereinafter for short referred to as the ''panel). The said panel enquired into allegations of rape, torture and other excesses by the Joint Special Task Force of Karnataka and Tamilnadu against tribals and others in the course of anti Veerappan operations. The panel submitted its report on 01.12.2003.
The learned Counsel appearing for the parties have referred to few paragraphs of the report in support of their respective contention. However, as required by the order of the Apex Court dated 24.04.2012, we have gone through the entire report of the Panel and the order/proceedings of the NHRC, that is produced before us to find out whether there is any adverse comment on the third respondent and even if there are no adverse comments against him, whether those materials would still be relevant for consideration by the UPSC for preparing the Panel for appointment as DGP, Karnataka. We have extracted here, the paragraphs on which reliance is placed by the learned Counsel appearing for parties as well as other portions of the report which we found material to answer the questions framed by the Supreme Court in its order, which arise for consideration in these petitions. We have given both internal page numbers of the report as well as paragraph numbers to verify the correctness, if it is disputed.
PANEL REPORT
The front page of the report reads as under:
REPORT OF ENQUIRY into a11egations of rape, torture and other exeesses by the Joint Specia1 Task Forces of Karnataka & Tami1 Nadu, against triba1s and others, in the course of anti-Veerappan Operations
The said report discloses that: the panel held its first meeting on 15-7-1999 at Bangalore and determined the modalities of enquiry and the staff needed for its work. The panel commenced its enquiry at Gobichettipalayam (TN) on 27th, 28th and 29th January, 2000 followed with another session at Kolathur (TN) on 28th and 29th February, 2000. Further proceedings of the panel were held up because of the stay order granted by the Karnataka High Court. After the stay order was vacated, the panel resumed its enquiry with a session at Bangalore on 3rd January, 2002 and held further sessions at MM Hills (Karnataka), Gobichettipalayam (TN), Chamarajanagar (Karnataka), Mysore and Bangalore. The panel recorded the statements of 243 persons, in all during the enquiry, of whom 193 are the alleged victims, 4 are the representatives of NGOs, 38 are the police officers and 8 are the other persons summoned by the panel to get clarifications on some matters that came up during the enquiry. The panel has broadly classified the allegations of mal-treatment at the hands of STF at internal page No.18, ink page 43 of the report as under:
The a11egations of ma1-treatment at the hands of the STF, as made by the witnesses examined by the Pane1, may be broad1y c1assified as fo11ows:
(i) Rape and accompanying mo1estation of women in po1ice custody;
(ii) Outraging the modesty of women by disrobing them and subjecting them to torture by app1ying chi11y powder or paste to their urina1 passage;
(iii) Repeated torture by app1ication of "current treatment" in which e1ectric current at an unbearab1e vo1tage was generated in a sma11 handy machine c1ose-by and made to pass through different points of the victims body, inc1uding their private parts with the he1p of pointed e1ectrodes;
(iv) Ki11ing of persons taking them to forest area from po1ice custody in the name of `encounters;
(v) Repeated torture resu1ting in the death
of a few after their re1ease from po1ice custody;
(vi) Pro1onged detention in po1ice camps without regard to 1aw and human rights and humi1iating treatment by the po1ice in a variety of ways.
After setting out the allegations made in the complaints, at para 52, internal page 44, of the report, they have set out as under:
The triba1s and others, who deposed about torture by the STF, have named 38 STF personne1 as responsib1e for the torture and connected acts in gross vio1ation of their human rights. A11 the accused personne1 a1so tendered evidence before the Pane1. 13 among them be1ong to Tami1 Nadu po1ice and the rest are from Karnataka Po1ice. They inc1ude PW-1 Wa1ter Davaram, the then Chief of the JSTF and PW-7 Shankar Bidri, the then Commander of Karnataka STF.
Thereafter, in the subsequent paras, they have set out the defence of the police which is a blanket denial of all the allegations. Then, at para 57, they have stated as under:
PW-7 Shankar Bidri, the then DIG of Po1ice, Mysore Division, took charge as Commander of Karnataka STF on 18-2-1993. However, he a1so continued to ho1d his office as the DIG of Po1ice, Mysore Division. After the formation of the JSTF, PW-7 Shankar Bidri said that he used to 1ead the Karnataka and Tami1 Nadu Task Forces a1ong with BSF., subject to the genera1 powers of contro1, superintendence and direction of PW-1 Wa1ter Davaram, the Chief of the JSTF. PW-7 Shankar Bidri further stated that when he took charge on 13-2-1993, po1ice action to catch Veerappan had come to standsti11. An area of about 1,600 Sq. Kms. remained tota11y incommunicab1e and out of contro1 of the administrative machinery. He, therefore, submitted a proposa1 to the Government for sanction of various posts with infrastructure. The Government, by its order dated 13-4-1993, sanctioned a11 the posts with infrastructure as sought and, in pursuance of the order, 114 po1ice officers of different cadres were deputed to the STF and 5 p1atoons of KSRP were added to the existing 11 p1atoons.
Then, at para 59, they have held as under:
It is seen from the statements of the STF personne1 the no specific area was assigned to any particu1ar group either for co11ecting information about the activities and whereabouts of Veerappan and his gang or to comb the forest on the basis of the information; Every group was empowered to visit any p1ace and take any person to custody and comb any area, on the basis of the information they received; sometimes, more than one officer visited the same p1ace together a1so. In comp1iance with the instructions issued by the Commander or Investigating Officers and the powers conferred on them, they took persons to their custody and produced them before the investigating officers; PW-7 Shankar Bidri stated that no movement dairy was maintained by the STF officers; the officers entrusted with inte11igence work used to report to the investigating officers about the information they co11ected, the p1aces visited and the number of days they had stayed there to co11ect such information. The investigating officer wou1d, in the norma1 course, record these detai1s in the concerned case diary and, except this document, there is no other document to show the movements of the officers of the inte11igence wing. However, PW-36 M.C. Mariswamy, one of the investigating officers, said that no officer from inte11igence wing submitted any report, in writing, with respect to the p1ace, the time and the person he visited and the information he gathered from different sources; except the radio messages recorded now and then, there is no documentary evidence to ascertain the movement of various officers of the inte11igence wing. He a1so said that no radio message was received in respect of any suspect having been apprehended at any p1ace in Tami1 Nadu.
The panel, after considering the evidence of the police personnel and their contentions, has observed as under at internal page No. 74, ink page 78:
The Karnataka STF have branded the evidence of a11 witnesses against them as fa1se, concocted and motivated to secure compensation. They stated that the NGOs and others supporters of Veerappan and his gang members have pub1ic1y announced in the area that "whoever makes a11egations against po1ice regarding torture wi11 be benefited by two 1akh, those making a11egations of rape wi11 get five 1akh and those making a11egations of ki11ing wi11 get Rs.10,00,000/-. V.P. Gunasekaran gave evidence before the Pane1 as MW-193. No suggestion re1ating to the a11egations made against him in their written submission was made to him during his cross-examination by the two STF representatives. No po1ice officer has made any statement in his evidence before the Pane1, even remote1y suggesting such ma1e find motives against MW-193 V.P. Gunasekaran.
We fee1 sorry and disappointed to note that in attacking the veracity of the statements of some victims of rape and mo1estation, the victims of rape and mo1estation, the STF have not produced any materia1 evidence to discredit the witnesses but have on1y used derogatory 1anguage bordering on obscenity mere1y to state that the witnesses are not be1ievab1e. We expect some minimum standards of decency to be maintained in a11 proceedings of a pub1ic nature. The written submission made by Karnataka STP appears to have spi11ed over the 1imit in this regard, in our opinion. We are on1y recording this observation in passing, whi1e proceeding to consider their submission fu11y and strict1y on its merits.
(underlining by us)
Chapter IV of the report contains the appraisal of evidence by the panel. At paras 2, 14, 15 85 16, they have observed as under:
From the materia1s before the Pane1, two possibi1ities wou1d emerge --- one against the STF and the other against the victims. Since Veerappa has successfu11y remained at 1arge and is a1so active in the interior forest beyond the reach of the STF for a very 1ong time in spite of the extensive and intensive action taken by the STF, and since the STF have not been getting the required co-operation of the 1oca1s to find out the hide-outs of Veerappan and his gang, we cannot ru1e out the possibi1ity of the STF getting frustrated and becoming very aggressive due to the pressure of pub1ic opinion, besides the directions from their higher-ups to intensify their efforts, resu1ting in their arresting and detaining severa1 peop1e from the area for pro1onged interrogation, and adopting third degree methods to extract maximum information. At the same time, in view of their having been taken to custody by the STF for interrogation, the death and disappearance of their re1atives, their own persona1 invo1vement in some crimina1 cases, the threatening inf1uence of Veerappan and his agents over the dai1y 1ives of vi11agers in the remote forest area and a1so the persona1 interest to make a financia1 gain from the compensatory monetary re1ief that may be provided by the Government, the possibi1ity of some of the 1oca1s coming up with fa1se of incorrect or exaggerated statements of a11egations, cannot be ru1ed out. The a11egations, therefore, have to be considered with great care and caution with reference to the attending circumstances. While assessing the evidence of victims, their socia1 back ground, occupation, education, p1ace of 1iving, the cause and duration of their sufferings and the financia1 benefit they may be expecting from the findings in this inquiry have to be kept in mind.
As mentioned ear1ier, 193 persons gave evidence before the Pane1 as victims. 140 persons, out of 193, have deposed that they were victims of atrocities, having suffered persona11y at the hands of the STF. E1even of them have stated that they were a1so raped by the STF in addition to being subject to physica1 torture. The rest having a11eged that the STF took them b1indfo1ded from their houses to various camps of the STF, detained i11ega11y for periods varying from three days to one and a ha1f years. The STF had stripped them naked and administered ''e1ectric current'' to their body at various points, 1ike ear-1obes, back of the neck, tip of their nose, nipp1es and their private parts. They a1so stated that their 1egs were fettered with chain; their 1imbs tied with rope behind their back and they were hung from the roof of the bui1ding and beaten merci1ess1y with '') athis'' and c1ubs, and some have a1so said that they were hit with the butt-end of rif1es.
48 among them admitted that they were not physica11y tortured persona11y even though they suffered a great dea1 due to the atrocities committed against their kith and kin.
Eight among them have deposed that either their father or their spouse had died due to torture after they were re1eased from the i11ega1 custody of the STF. Six have stated that the earning member of their fami1y disappeared from the custody of the STF and their whereabouts are not known yet. Six others are stated to have suffered permanent disabi1ity on account of the STF torture. One among them deposed that he was subjected to torture at Thattekere camp for twenty days and emp1oyed thereafter as a Cook in the camp for about a years and a ha1f. Thereafter, the Inspector emp1oyed him for the construction of his house and that of his sister without paying him any remuneration.
As the evidence tendered by these witnesses dealt with various aspects of torture, at para 20, they categorised them as under:
Since the evidence tendered before the Pane1 covers different forms of torture, some accompanied by rape, some resu1ting in death and so on, we consider, it wou1d be appropriate to consider the evidence separate1y, under different heads, and give our conc1usions under each head. According1y, we take first the a11egations of rape.
11 persons had complained of rape. Their evidence was considered and at internal page 104, at the end of para 27, it was observed as under:
Their be1ated evidence indicates an attempt to imp1icate PW-7 Shankar Bidri as the person direct1y responsib1e for the perpetration of torture. Except their say and their affidavits, there is nothing on record to probaba1ise the commission of rape. The absence of evidence from other persons who had been detained a1ong with them and a1so the manner in which the affidavits are stated to have been prepared, create an e1ement of doubt about the probabi1ity of the commission of rape.
(under1ining by us)
However, they found M.W. 83 - Smt. Lakshmi was a victim of rape and their finding is at internal page 112 at para 36 which reads as under:
The evidence MW-83 Smt. Lakshmi, another victim of rape, apears more natural and probable in the manner in which it was given. She not only said that she was taken to different places and raped but also that she used to go to the places of stay of police officers whenever directed and, after satisfying their lust, she used to get back home with a little money given to her. However, she could not identify the persons who had committed these heinous acts.
(underlining by us)
Finally, with reference to the allegations of rape, they concluded as under:
For the reasons detai1ed above, we ho1d that none of the a11egations of rape by the STF personne1 is proved, excepting the case of MW-83 Smt. Lakshmi, wife of Rajendran, Lakkampatti, whose version of her having been exp1oited for sex by the STF personne1 appears credib1e, though she cou1d not identify the persons who had ravished her.
(underlining by us)
Insofar as physical torture is concerned, at page 125, para 53, following finding is recorded:
If the evidence of MWs. 2 & 5 is considered against the backdrop of the incident at Ka1mantipura on 17-2-1996 regarding which a case in Cr. No. 3/ 1996 was registered in Hasanur Po1ice Station and the re1atives of MWs. 2 & 5 were arrested, it is be1ievab1e that MWs. 2 & 5 were a1so taken into custody and detained for some time and the STF had adopted unsavoury methods to extract information. Under these circumstances, we ho1d that they must have been subjected to some form of torture, inc1uding the outraging of their modesty, by the STF. Simi1ar1y, MW-1 Smt. Earamma1 must a1so have suffered the same indignity.
(underlining by us)
Again, at internal page 126, para 54, it is stated as under:
54.....We are unab1e to understand as to show she cou1d te11 that Shankar Bidri had app1ied e1ectricity to her body. It is unbe1ievab1e that Shankar Bidri, the Commander of the STF, wou1d have himse1f taken on the job of persona11y torturing her, when severa1 other po1ice personne1, subordinate to him, were avai1ab1e with him to interrogate her for getting information. Shankar Bidri (PW-7) denied the a11egations made against him. He a1so stated that he never went to the houses of any of the suspects to bring them for interrogation. This statement of PW-7 appears true and acceptab1e. Her evidence contains contradictions on materia1 facts and we reject it.
(underlining by us)
Insofar as the allegation of rape of Smt. Lakshmi is concerned, finding is recorded at internal page 129, para 57 and the final conclusion at para 58 are as under:
For the reasons mentioned ear1ier in this chapter as a1so the previous chapter, we do not find the a11egations of MW-3, MW-4,. MW-6, MW-82 and MW-132 about their torture by the STF to be true. In regard to MW-83 Smt. Lakshmi, we have found her evidence regarding rape to be acceptab1e, and 1ikewise, we ho1d her a11egation of torture by the STF to be true. 58. In conc1usion, we record that the a11egations of MWs.1, 2, 5 and 83 of torture by the STF in their custody and proved.
(underlining by us)
Insofar as torture preceding arrest and remand of TADA cases is concerned, at paras 68, 69, 82, 85, 86, 87, 88, 91 and 107 it is observed as under:
a68. The evidence given by them individua11y is a1most simi1ar and stereo-typed. Their statement that there were about 100 persons in the workshop, inc1uding 40 women, is not consistent with the factua1 possibi1ities in the concerned bui1ding. The evidence of other witnesses refers to the presence about 60 persons...."
We are, therefore, unab1e to persuade ourse1ves to accept the a11egations of these witnesses as true."
The different methods of torture a11eged by a11 these witnesses are very simi1ar in description and appear stereotyped. Though the statements contain many discrepancies, it cannot be disputed that these witnesses had been arrested by the STF and produced before the Court on a certain date and detained in prison for many years ti11 they were acquitted by the Designated Court in September 2001.
In many of these cases, the po1ice have brought to record in case diaries the e1aborate confessiona1 statements said to have been made by the arrested accused. Such detai1ed confessions can come about on1y after patient and pro1onged interrogation. The STF have not satisfactori1y described to Pane1 where and how they had done a11 this 1engthy interrogation; which, u1timate1y, got them the confessiona1 statements. The circumstances in which the confessiona1 statements had come up remain unexp1ained. It is re1evant to note here that the Designated Court had not accepted these confessiona1 statements as re1iab1e. We are a1so of the same view as far as this inquiry is concerned. We are inc1ined to be1ieve that a11 these witnesses, we were 1ater arraigned as accused in TADA cases, had been he1d in informa1 custody for quite some time before their forma1 arrest and production in Court on a TADA/FIR for remand fo11owed by a charge-sheet and pro1onged tria1. Whi1e the a11egations of torture during the informa1 detention prior to the arrest are not substantiated by acceptab1e evidence, and the actua1 duration of informa1 detention is a1so not determinab1e by acceptab1e evidence, we are convinced that a11 these witnesses who were arrested in TADA cases had, in fact, suffered informa1 detention by the STF prior to arrest and, to this extent, they deserve to be compensated appropriate1y.
It is not in dispute that a11 these witnesses are re1atives of the a11eged associates of Veerappan, who were stated to have been ki11ed on various dates at various p1aces in po1ice encounters. According to the STF, these persons were invo1ved in the commission of various offences, 1ike, attack on Ramapura Po1ice Station, assassination of Harikrishna and others, Pa1ar bast case, attack against the Convey of Gopa1 Hosur and other cases. It is a1so a11eged that they were absconding from the date of offence ti11 the date of their arrest. In this view of the matter, the Pane1 is not inc1ined to accept the case of the STF that they were produced before the Court within twenty-four hours from the time of their arrest without interrogating them. Many of them were taken to custody in Tami1 Nadu within the 1imits of po1ice stations other than MM Hi11s and Ramapura Po1ice Stations. It is admitted by the STF that whenever an accused is taken into custody by the po1ice within the 1oca1 1imits of any po1ice station they were 1ega11y required to inform such po1ice station and get their arrest recorded in such po1ice station, which procedure, admitted1y, has not been comp1ied with in these cases. The reasons given by the STF for not comp1ying with this 1ega1 requirement is abso1ute1y unconvincing. It is doubtfu1 if these persons were actua11y arrested on the day and at the p1ace as recorded by the po1ice.
The Pane1 directed the STF to produce the 1ong books in respect of the vehic1es used by them. The 1og books for the years prior to 1994 were not produced on the ground that they had been destroyed. The 1og bock for the period from 1994 to not indicate the visits of the STF personne1 to the re1evant p1aces on the days on which they c1aim to have arrested these witnesses. In the norma1 course, when the accused invo1ved in serious offences are apprehended, they wou1d be interrogated at 1ength by the po1ice, and when the interrogation cannot be comp1eted within twenty-four hours of arrest, the po1ice wi11 fi1e an app1ication before the Court for remand to po1ice custody. Admitted1y, no such prayer was made before the Designated Court seeking remand of the accused to po1ice custody, when they were produced before the Court. It is a1so materia1 to note that the STF have suggested that these witnesses were not mere1y the supporters of Veerappan but had a1so participated in heinous crimes and were responsib1e for the death of many po1ice officers, and they are aware of the whereabouts of Veerappan and his gang. In these circumstances, we are unable to accept the naive statement of the STF that the accused persons were produced before the Court within twentyfour hours of their arrest. In view of the gravity of the offences said to have been committed by these witnesses, it is norma1 to except the STF to have kept them in their custody for a considerab1e period to extract information adopting a11 methods known to them.
For these reasons, we are convinced to ho1d that these persons must have been kept in po1ice custody for quite some time before they were forma11y arrested under the 1aw and produced before the Court.
KKKK we conc1ude that the aforesaid persons had been detained informa11y without arrest under the 1aw by the STF for periods extending over a few weeks or months in some cases, and subjected to torture, 1ike ''current treatment'', assau1t and outraging their modesty by being, by the STF for periods extending over few weeks or months in some cases, and subjected to torture, 1ike ''current treatment'', assau1t and outraging their modesty by being disrobed, by the STF in their efforts to e1icit maximum information either against Veerappan or against their kith and 68 kin who were a11eged to be supporters of Veerappan.
In these circumstances, we conc1ude that MW-136 Smt. Papa, MW-137 Gudde Madeva, MW-139 J. Puttamadaiah, MW-159 Meke Madaiyan, MW-161 Sipri Chin napayyan, MW -162 Ayyavu, MW-178 Ke1adi and MW-181 B. Madaiah had been taken into custody by the STF and harassed whi1e in detention for a brief period for extracting information, and were then forma11y arrested and produced before the Court.
(underlining by us)
Insofar as the torture against associates of Veerappan and other suspects are concerned, at para 188, internal page 239, it is observed as under:
We found that MW-105 Smt.E11amma1 was unab1e to stand for more than twenty minutes. She a11eged that she was beaten indiscriminate1y, hung from the roof and a ro11er was put on her thighs and ro11ed by two po1icemen using a11 their strength and, hence, her 1imbs became weak and cannot take the strain of her own weight.
At para 189, it is observed as under:
...The case of MW-105 Smt.E11amma1 appears to be true as we observed from her demeanour.
At Para 227, they have held as under:
After assessing the evidence of a11 the witnesses, we are of the view that MW-48 Rangappa, MW-52 Mada, MW-105 Smt. Ya11amma1, MW-153 Gopa1 and MW-155 Rajappan have been victims of the STF atrocities. The wife of MW-155 Rajappan had died on account of a situation caused by the atrocities of some unidentified personne1 of Tami1 Nadu STF.
Insofar as Chapter-V - encounter deaths, is concerned, at paras 2, 3, 5, 11, 15, 16, 18, 19 85 20, it is observed as under:
We obtained from the STF of both States the detai1s of encounter deaths that had had taken p1ace in the course of their anti Veerappan operations. The ana1ytica1 statements received from them shows that during the period from 3-1-1990 to 18-7-1998 there were thirty-eight deaths in Karnataka and twenty-eight in Tami1 Nadu resu1ting from armed encounters of the STF with the Veerappan gang. These deaths had occurred in twe1ve separate incidents of encounter in Karnataka and fifteen incidents in Tami1 Nadu, which were a11 dea1t with and disposed of in separate registered cases of the concerned po1ice stations. In regard to each of these encounter incidents the STF had du1y comp1ied with the procedure of inquiry 1aid down in their respective State Po1ice Regu1ations. In regard to the incidents in Tami1 Nadu inquiries had been du1y he1d by the Revenue Divisiona1 Officers concerned and the State Government had accepted their inquiry reports ho1ding that the po1ice firing in the encounters was justified and no further action was ca11ed for.
In regard to the incidents in Karnataka the Po1ice themse1ves had he1d the inquest in each case and proceeded further with the investigation of the incident as a registered case of the 1oca1 po1ice station in which the persons ki11ed in the encounter were inc1uded as ''accused'' and the cases were disposed of in the norma1 course without any action against the po1ice personne1 invo1ved. The representative of Karnataka Po1ice informed the Pena1 that the procedura1 ru1es of Karnataka po1ice do not envisage an inquiry in every such case by a senior functionary in administration outside the po1ice, and the ru1es require on1y a message to be sent by the po1ice to the District Magistrate immediate1y after the occurrence of such an incident and it is for the District Magistrate to get the matter inquired into by one of his senior officers if he considers such an inquiry desirab1e in the circumstances of the case.
We got from the po1ice in both States the post-mortem certificates they had obtained in the norma1 course from the 1oca1 doctors who had performed the autopsy on the dead bodies of persons ki11ed in the encounters. We took note of the description of the gun shot wounds and other injuries in each case as recorded in the post mortem certificate and then obtained the detai1ed opinion of N.G. Prabhakar, Assistant Director, Forensic Science Laboratory, Banga1ore, regarding the nature of the wounds, whether they are 1ike1y to have been caused by fire-arms of the type he1d by the STF, the directions in which the firing is 1ike1y to have taken p1ace to cause is 1ike1y to have taken p1ace to cause the ''entry'' wou1d and ''exit'' wou1d in each case as described in the post mortem certificate, and the probab1e distance from which the firing is 1ike1y to have taken pa1ace.
From the pictoria1 presentation of the Ba11istics Expert and the detai1ed description recorded in the post-mortem certificates it is c1ear1y seen that in a11 the sixty-six deaths the injuries were concentrated on the front side or back side of the head and torso on1y.
It is a1so noticed from the description and 1ocation of the wounds in the postmortem certificates in a11 the sixty-six cases that a11 the wounds had been caused either on the front side or back side of the body and there is no indication of any firing at random in an ob1ique direction which wou1d norma11y have been the case if firing had been resorted to in a regu1ar encounter invo1ving rapid cross-cross movements of a11 the persons engaged in the thick of the encounter.
From the foregoing ana1ysis of the matter with reference to the materia1 on record and further c1arified by the Ba11istics Expert N.G. Prabhakar, the fo11owing significant points emerge for notice in the present context:-
(i)In six cases of Karnataka firing had been done at CONTACT range. In one of these cases firing had been done right into the mouth of the person concerned. In two of these cases firing had a1so been done from both sides.
(ii) Firing in the other cases had most1y
been done within MEDIUM range i.e., between two and 300 yards from the body.
(iii) The injuries in a11 the cases are concentrated in the region of the chest and the abdomen.
(iv) In twe1ve connected cases [with 1etter No. PNHRC/412/2003 dated 11-12� 2003 received from the Hon''b1e Mr. Justice A.J. Sadashiva], the persons concerned had been fired at from the front as we11 as the back.
(v) The direction of firing in the remaining
cases had been either from the front or the back, with no sign of any ob1ique random firing which one wou1d norma11y expect to happen in the thick of a rea1 encounter.
(vi) In a11 the inquiries made by the 1oca1 authorities in regard to these encounter deaths in accordance with the prescribed procedure in the two States, none of the re1atives of the persons ki11ed in the encounters had been examined to ascertain his or her version. In the statement furnished by the Tami1 Nadu STF they have mere1y noted in each case that "the re1ations of the deceased avoided Revenue Divisiona1 Officers Inquiry." Non-examination of the c1ose re1atives of the deceased in a11 the sixty-six cases on encounter deaths 1isted by the two STFs, throws doubt on the credibi1ity of the entire process, as perceived by the triba1s and vi11agers affected by the po1ice operations. This doubt gets further strengthened by the significant points noted above.
Simi1ar1y, a c1ose 1ook at the sequence of action in MM Hi11s Cr.No.12/93 a1so revea1s some more disturbing features. It is on po1ice record in this case that eight persons, name1y, Amasi, Andiyappan, Mani, Peruma1, Ayyan Dorai, Murugan, Arjuna and Raja @ Mitcha died in cross-firing between the Karnataka STF and Veerappan gang on the morning of 24-5-1993 in the forest near Shanishwara temp1e at 18/27 curve of Ko11ega1 - MM Hi11s Road.
The statement of the STF that the persons aforementioned died in the STF firing opened in reta1iation to the firing by the members of Veerappan gang is inconsistent with the sequence of events mentioned in the comp1aint fi1ed by Sanjeeva and the statements of the inquest witnesses. It is on record that there were there vehic1es in the Convoy of Gopa1 Hosur, one of which was in his use; Veerappan and his associates attacked the Convoy with rif1es and hand bombs; a11 the occupants of the first vehic1e died in that attack and a11 the occupants of the other two vehic1es, inc1uding Gopa1 Hosur sustained bu11et and other injuries; five SLR rif1es and ammunition be1onging to the STF were taken away by the members of Veerappan gang. In addition to these, we a1so observed the verbatim account of the incident in a11 the statements of eight inquest witnesses recorded by eight different po1ice officers. In these suspicious circumstances, it is hard to be1ieve the STF version of ''Encounter death'' in MM Hi11s Cr. No.12/1993 that eight persons mentioned above were ki11ed by the members of additiona1 force who arrived at the scene of occurrence ha1f an hour 1ate.
On an overa11 consideration of a11 the facts and circumstances concerning these encounter deaths, we are of the opinion that the a11egations made by some of the witnesses regarding the veracity of the encounters, as recorded by the po1ice, cannot be tota11y brushed aside as base1ess. It seems to us that the inquiries made by the prescribed authorities in the two States immediate1y after the a11eged encounters had perhaps not taken into account a11 the re1evant evidence concerning the matter, particu1ar1y the version from the re1atives of the deceased persons, and considered opinion of a Ba11istics Expert as regards the gun-shot injuries resu1ting from the encounters. Having regard to a11 these aspects of the matter, we are of the opinion that in the interests of justice to the fami1ies of the deceased victims in the six cases in which firing seems to have been done at very c1ose CONTACT range and the twe1ve connected cases [with 1etter No. PNHRC/ 412/2003 dated 11-12-2003 received from the Hon''b1e Mr. Justice A.J. Sadashiva], in which the victims had been fired at from both sides, the front as we11 as the fact, the fami1ies on the deceased victims deserve to be compensated suitab1y by payment of substantia1 monetary re1ief. The different encounters in which the above eighteen cases are accounted for by the po1ice a1so inc1ude a few more deaths which do not bear signs of c1ose firing or ''both-sides'' firing. However, we consider that when an encounter by itse1f becomes ''suspect'' because of the suspicious features surrounding any one of the deaths ascribed to that encounter, the benefit of compensation shou1d be extended to a11 the deceased victims of that encounter. The names of the deceased victims in a11 the encounters connected with the eighteen connected cases [with 1etter No. PNHRC/ 412/2003 dated 11-12-2003 received from the Hon''b1e Mr. Justice A.J. Sadashiva], mentioned above are furnished in Annexure-IV for easy reference and expeditious payment of compensation.
(underlining by us)
In Chapter-VI, they have dealt with the police personnel involved in the allegations and have observed as under:
It can be inferred from the above statement that po1ice officers are genera11y aware of the avai1abi1ity of such a handy instrument for generating 1ow vo1tage current which wou1d be enough to cause acute shock and p1ain without causing death or say serious disab1ement....
Having regard to the doubtfu1 features of the evidence as noted ear1ier, we are of the considered opinion that it is we11 nigh impossib1e, at this stage and distance of time, to fix the identify of the po1ice personne1 invo1ved in the a11egations which have been he1d as true as far as the injuries suffered by the victims are concerned, more particu1ar1y where it was admitted by some witnesses that they were kept b1indfo1ded in the workshop. In the conc1uding part of the Report, we wi11 be under1ining the specia1 responsibi1ity of the commanding officers at the top 1eve1 to strict1y e1iminate the scope for commission of excesses of any kind by their operating personne1 at the ground 1eve1 In regard to the a11egations that are accepted, we recommend that action thereon may now be focussed on grant of appropriate and adequate monetary re1ief to the victims concerned.
(underlining by us)
Chapter - VII contains the observations and recommendations of the Commission. At para 29, it is observed as under:
Whi1e some restraint on the movement of persons under pro1onged interrogation is understandab1e in the context of the prevai1ing situation, excesses committed by the STF in the course of interrogation in brazen vio1ation of human rights cannot be justified. The manner in which the STF of both States had conducted their operations in this area carried with it amp1e scope for the commission of such excesses. In the absence of any in-bui1t mechanism to guard against such excesses resu1ting from professiona1 anxiety to secure resu1ts, it is be1ievab1e that the STF personne1 had committed some excesses.
(underlining by us)
Insofar as the responsibility of Commanders of the STF is concerned, at paras 33 85 35, it is observed as under:
It shou1d have been evident even at the commencement of operations by the STF that there was scope for excesses by the STF personne1 un1ess they were he1d in check by effective command and contro1 from above. When the Pane1 specifica11y questioned the Commanders of the 2 STFs. In this regard, Wa1ter Davaram, Commander of Tami1 Nadu STF, cou1d not cite any specia1 instructions he had issued in this regard. Shankar Bidri, Commander of Karnataka STF, produced a circu1ar dated 23-8-1995 issued by him as instructions to the po1ice personne1 under his command in this matter. It shou1d be noted that he had taken charge as Commander of the STF on 18� 2-1993 and it is strange that he issued the aforesaid instructions on1y after two years of his taking charge. It shou1d a1so be noted that most of the a11egations of excesses made by witnesses before the Pane1 re1ate to the period 1993-94, prior to the issue of written instructions by Shankar Bidri. Shankar Bidri has further c1arified that even the instructions issued by him on 23-8-1995 were meant for five additiona1 p1atoons specia11y ordered by Government for the protection of some vi11ages affected by the ki11ing of 11 So1igas by Veerappan and his gang in August 1995. Shankar Bidri has c1ear1y stated that prior on 23-8-1995 he had not issued any instruction in this regard for the regu1ar STF personne1. It is unfortunate that the need for guarding against excesses by the STF in the prevai1ing situation was not adequate1y rea1ised at the commending 1eve1s in both the STFs.
We wish to under1ine the need for enforcing strict discip1ine in the conduct of po1ice personne1 engaged in such operations, particu1ar1y in situations where they have to interact with civi1ian popu1ation. The commanding officers at higher 1eve1s must accept their personne1 responsibi1ity to ensure propriety of conduct of the entire personne1 under their command in this matter. The commanding officers shou1d not rest content with remote and indirect supervision in this regard. They shou1d issue detai1ed orders to a11 the personne1 in this regard, and strict1y enforce the orders during operations.
(underlining by us)
Chapter-VIII deals with relief to victims. At para 4, they have recommended payment to the victims mentioned in Annexure - IV, where the particulars of the tortures suffered by them is also clearly mentioned, which is as under:
ANNEXURE - IV
PARTICULARS OF THE VICTIMS AND THE TORTURE THEY SUFFERED
I. "PARTICULARS OF VICTIMS OF EXCESSES WHOSE ALLEGATIONS ARE HELD ACCEPTABLE BY THE PANEL AND THE TORTURE THEY SUFFERED.]
SL. NO.
Material witnesses number, name and address
Remarks.
1
2
3
(i)
MW � 83 Smt. Lakshmi, wife of Rajendran, Lakkampatti, KolathurHobli.
She used to be called to the STF camp on more than one occasion to satisfy their lust.
(ii) OUTRAGE OF MODESTY CURRESNT TREATMENT ASSAULT.
2.
MW-1 Smt. Earammal, Wife of JavaraiahBalepadagaThalavadiHobli Erode District.}
Detained for 15 days, Tortured on 3 days disrobing them, applied current to their bodies and assaulted.
3.
MW-2 Smt. Siddamma @ Siddi, wife of OnnamKalmanatipuramThalavadiTaluk Erode District.}
4.
MW-5 Smt. Nagi, Wife of ChikkaJavananKalmatipuramThalavadiTaluk Erode District.}
(iii) ILLEGAL DETENTION, ASSAULT & ELECTRIC SHOCK.
5.
1 MW-20 Chikkamadan son of KariyaSolanganiBhavaniTaluk
Detained in the camp for a few days, assaulted, applied current to his body at different points on one or two days.
6.
2 MW-23 Madevan Son of ChinnayyanThamburattiBargur.
Detained in the camp for a few days, assaulted, passed current to his body at different points on one or two days.
7.
3 MW-24 Kariyan Son of ChinnaiahnThamburattiBargur.
Detained in the camp for a few days assaulted, passed current to his body at different points on one or two days.
8.
4 MW-52 Mada son of MaranRamarAnaiThalavadi.
Detained in the camp for a few days, Indiscriminate assault.
9.
5 MW-105 Smt. Bllammal Daughter of Chinnathatchi Wife of PonnappaMettupaleyur.
Detained in the camp for a few days. Indiscriminate assault, including �Roller punishment�, rendered weak.
10
. 6 MW-153 Gopal Son of VeerappaGounderJellipalya.
Detained in the camp for more than a year and employed as a Cook without wages during that period. In the beginning, assaulted and current treatment� given.
11
MW �155 Rajappan Son of VeerannaGounderOdakehallaKollegalTaluk.
Detained in MM Hills for a few days, assaulted, his wife died due to the atrocities by unidentified Tamil Nadu STF.
(iv) PARTICULARS OF PERSONS WHO SUFFERED PERMAMENT DISABILITY
12.
1 MW-48 Rangappa son of Kariyan, KodampalliThalavadiTaluk.
Detained in the camp for a few days, assaulted, indiscriminately, right eye damaged.
13.
2 MW-127 Smt. ChinnaPillai, wife of ChinnapayyaMettupaleyur.
Detained for a few days, assaulted indiscriminately, suffered fracture of right wrist, resulted in permanent deformity due to mal-union.
3 MW-170 Kariyan son of SiddappaKodampalliThalavadiTaluk.
Assaulted, the earlier weakness deteriorated resulting in a serious quadriplegia rendering him immobile.
(VI) DISAPPEARANCE FROM THE CUSTODY OF THE STF
15.
1 Muruga, son of Madhaiyyan alias Bheema, DevarabettaBhavaniThaluk.
Taken to the custody by the STF, did not return, whereabouts not known.
II PARTICULARS OF TADA DETENUE WHO REMAINED IN JAIL FOR SEVERAL YEARS TILL THEY WERE ACQUITTED AND THE TORTURE THEY SUFFERED, BEFROE THEY WERE FORMALLY ARRESTED AND PRODUCED BEFROE THE COURT.
(i) PERSONS DETAINED FOR MORE THAN A MONTH, RENDERED NAKED, ASSAULTED INDISCRIMINATELY AND GIVEN PROLONGED CURRENT TREATMENT.
16.
MW-114 Smt. Seva wife of MuniswamyNallurKollegalTaluk.
She was detained only for ten days before she was produced before the Court, but subjected to torture, as others.
17.
2 MW-115, Smt. Ammachi Wife of RangaswamyNallur, KollegalTaluk.
18.
3 MW-118 Smt. Valliamma wife of ShambhuMettupaleyur.
19.
4 MW-119 Smt. Lakshmi wife of AyyanDoraiOonjukerai.
20.
5 MW-120 Smt. ChinnaPonnu wife of ArmugamMettupaleyur.
21.
6 MW-121 Smt. Nallamma wife of DoreswamyVodakehallaKollegalTaluk.
22.
MW-122 Smt. Muniyamma wife of PonnuswamyNallur, KollegalTaluk.
23.
8 MW-123 Muniswamy son of ChinnappaGounderNallur, KollegalTaluk.
24.
9 MW-128 Smt. Palaniamma wife of Mani, AnchepalyaKollegalTaluk.
25.
MW-129 Smt. Selvi wife of KulanoorShekheranThirupurKollegalTaluk.
26.
MW-130 Smt. Perumal wife of RamuruAnchepalya, KollegalTaluk.
(ii) PARTICULARS OF PERSONS DETAINED IN CAMPS FOR A PERIOD OF 20 DAYS AND BELOW, AND THE TORTURE THEY SUFFERED.
27.
MW-136 Papa son of HegdeMadaiahAnehola, MM Hils.
Detained for 8 days in MM Hills, given Current treatment.
28.
MW-137 GuddeMahadeva, son of GuddeHirannaDoddaAne, MM Hills.
Detained for 8 days given current treatment and assaulted on 5 days.
29.
MW-139- J.Putta-Madaiah, son of J.MadegowdaHaleooru, MM Hills.
Detained for 15 days, current treatment on 3 days, rendered ineligible to perform the function of �Archak� due to incarceration in jail.
30.
MW.159 MekeMadaiah son of Vayyapuri, NallurKollegalTaluk.
Detained in MM Hills for about a month, current treatment and assault.
31.
MW-16 K.DoreswamyChettiyar, son of KandaswamyChettiyar, Oogyam.
Detained for 3 days, case not considered by TADA review Committee.
32.
MW-161 Sipri-Chinnaiah, son of MeyyaGounderNallur.
Detained for about a month, given current treatment and Assaulted on about 4 days.
33.
MW-162 Ayyavu, son of GovindapandiyanJellipalyam.
Detained for about 11 days current treatment and assault on two days.
34.
MW-166 Kulandairaj son of ThomaiMartalliKollegalTaluk.
Detained for 16 days current treatment on one or two days.
35.
MW-167 Krishnan son of VeluchettyNallur, KollegalTaluk.
Detained in MM Hills for 20 days, current treatment on one day.
36.
MW-168 Ponnuswamy son of GurunathaGounder, AnchepalyaKollegalTaluk.
Detained for 9 days kicked and spat on his face.
37.
MW-178 T.P. Keladi son of PandyaThambadiDevaramalai.
Detained in MM Hills for about 16 days, given current treatment and assaulted on one or two days.
38.
MW-181 B.Madaiah son of BasavegowdaDevaramalai.
Detained in MM Hills for about 16 days, given current treatment and assaulted on one or two days.
(iii) PARTICULARS OF TADA DETENUES CONTINUED TO LANGUISH IN JAIL ALONG WITH AFOREMENTIONED DETENUES FOR NON-CONSIDERATION OF THEIR CASES BY
REVIEW COMMITTEEE WHO DID NOT APPEAR BEFORE THE PANEL.
39.
24.
ChinnaThambi, son of KaliyappaGowdarThalagunoor, MetturTaluk.
40
25.
Govindaraju, son of Ponnuswamy, GopinathamKollegalTaluk.
41.
26.
Palanisamy, son of RathanamKotteyurHandeKurubanaDoddi, KollegalTaluk.
42.
27.
Shekhara @ KolathurShekharaKotteyurHandeKurubanaDoddiKollegalTaluk.
43.
28.
Naganna, son of Papa ThambadiKerana Hole, KollegalTaluk.
44.
29.
Chinnappa J., son of JavareGowda, HoleyurKollegalTaluk.
45.
30.
Guna @ Muthu, son of AndiyappaKarangoor, MetturTaluk.
46.
31.
Mani, son of ChinnappaGowdarNallur, KollegalTaluk.
47.
32.
Eranna, son of KandannaKokkabore, KollegalTaluk.
48.
33.
Muruga, son of KeladhiKokkabore, KollegalTaluk.
49.
34.
Muniswamy, soin of ChinnappaGowdarGopinatham, KollegalTaluk.
50.
35.
Madhu, son of PillaiGoundarNallur, KollegalTaluk.
51.
36.
Parasunaika, son of MeethuNaikHandeKumbhanaDoddiKollegalTaluk.
52.
37.
Smt. Ponnarasi, wife of KolandaiGooinatha, KollegalTaluk.
53.
38.
Smt. ChinnaPonnu wife of VeeraswamyNallur, KollegalTaluk.
III PARTICULARS OF PERSONS KILLED IN SUSPICIOUS ENCOUNTERS WITH CRIME NUMBERS REGISTERED AGAINST SUCH ENCOUNTERS.
Cr.No.12/92 MM HILLS P.S.
54.
1.
Venkatachala, son of Lingegowda, NallurKollegalTaluk.
55.
2.
Kolandai, son of AyyanPerumal, NallurKollegalTaluk. (son of MW-126 Smt. Ammachi)
Shot from both sides.
56.
3.
Thangavelu, son of MadaiahNallur, KollegalTaluk.
57.
4.
Shanmugam, son of AyyanDorai, Nallur, KollegalTaluk.
Shot from both sides.
Cr.No.12/93 MM HILLS P.S.
58.
5.
Amasi son of Guruswamyaveripuram.
59.
6.
Perumal, son of PonnappaSettipatti, (husband of MW-144 Smt. Kanthimathi.
60.
7.
AyyanDorai, son of AyyanPerumalNallur, KollegalTaluk, (son of MW-126 Smt. Ammasi)
61.
8.
Andiyappan, son of MuthuLakkampatti, (Father of MW-88 Murugesh)
shot from both sides.
62.
9.
Mani, son of MuthuLakkampatti, (Husband of MW-91 Smt. Mani).
63.
10.
Murugan, son of MadhuPeriyaThanda (Husband of MW-18 Smt. Shivagami).
64.
11.
Arjuna, son of KundanLakkampatti, (Husband of MW-99 Smt. Shanthi).
65.
12.
Raja @ Mitcha, son of Raya, PeriyaThanda, Husband of MW-86 Smt. Papa @ Papamma.
Cr.No.14/93 MM Hills P.S.
66.
13.
Mahadevappa @ MeesekarMadaiah Son of Puttathambadi.
67.
14.
Ramuru @ Seelakara Son of ChinnethambiGownderChettipatti, Salem District (Husband of MW-134 Smt. Palaniyamma)
Shot from both sides.
68.
15.
Perumal, son of MadhuDevaramalai.
69.
16.
Ardhanari, son of KittanDevaramalai.
70.
17.
Subramanya, son of AnkappaDevaramalai.
All of them sustained fire-arm injuries either in their chest or abdomen.
Cr.No.16/93 MM HILLS P.S.
71.
18.
Kumastha @ Kumatha son of PonnuswamyNallur, (Son of MW-122 Smt. Muniamma).
shot from contact range.
72.
19.
Kunjappa, son of Kulandeyappa, Nallur, (Husband of MW-150 Smt. Mangamma).
shot from both sides.
73.
20.
ModaleMuthu @ MartallyMuthuVoddarahalli (Husband of MW-143 Smt. Jnanasunari).
shot from contact range.
74.
21.
Palaniswamy, son of Madhu, Nallur, (Son of MW-124 Smt.Perumatha).
75.
22.
Mani, son of KuppaJellipalye.
76.
23.
Selvaraj @ Cheluvaraj, son of Ramuru, Anchepalya (son of MW-130 Smt. Perumai).
77.
24.
Putta, son of HegdeMadaiah, MM Hills (Husband of Smt.Chinna-thayi, daughter of MW-133 Smt. Kempamma).
shot from contact range into the Mouth.
78.
25.
Gangadhara, son of Manikyam, Baragur, (husband of Perumatha, daughter of MW-130 Smt.Perumai).
shot from contact range.
79.
26.
Thangavelu, son of Andiyappan, Nallur.
Cr.No.23/93 MM HILLS P.S.
80.
27.
Smt. Mani @ Soudhamani Wife of MariyappaGopinatham.
shot from contact range and also from medium range.
81.
28.
Mariyappan, son of KandyaNaikaGopinatham.
82.
29.
Smt. Papathi, wife of SethukuliGovindanVadakehalla.
shot from contact range and also from medium range.
Cr.No. 15/92 Ramapura P.S.
83.
30.
Gurunatha @ Gurunathachari Son of Ramaswamy, Gopinatham.
shot from both sides.
Cr.No.69/93 RamapuraP.S.
84.
31.
Ponnuswamy@ SarayiveettuPonnuswamyNallur.
shot from both sides.
SUSPECIOUS ENCOUNTER IN TAMIL NADU.
Cr.No. 15/93 Baragur P.S.
85.
32.
Kamaraj(address is not available
In the record).
shot from both sides.
Cr.No.22/92 Bargur P.S.
86.
33.
Krishnan, son of DoddaThambi
Devaramalai.
shot from both sides.
87.
34.
Palaniswamy @ Dollar Palani, son of AyyanDorai, Martally.
88.
35.
Karuppannan, son of KandaswamyGounderKoteyur.
89.
36.
Manickam, son of ChinnaPayyanNallur.
shot from both sides.
All are them have sustained fire-arm injuries either in their chest or abdomen.
The report was submitted to the NHRC on 2-12� 2003. By order dated 23-2-2004, the Commission sent a copy of the report to the Government of Karnataka and the Government of Tamil Nadu for their comments. The two Governments submitted their response and raised some technical objections. The said objections are also on record which is dated 30-4-2005 where para wise comments are submitted both by the Director General and Inspector General of Police as well as the State Government. A perusal of both the para wise remarks shows that the Government has towed the line of the police department and it is a replica of the comments of the police. The Commission took up the issue for consideration. In order to ensure expeditious disposal of the case, the Chief Secretaries of Karnataka and Tamilnadu were requested to attend the NHRC on 7.12.2006 for discussions. Accordingly, Sri L.K. Trikpathi, Chief Secretary, Government of Tamilnadu and Sri A.K. Aggrawal, Additional Secretary, Karnataka appeared before the Commission on 7.12.2006. The NHRC impressed upon them that in dealing with the cases of violation of human rights, the approach should be one of respect for precious human rights, compassion and not technical. If there had been violations of human rights, such violations should be properly redressed and attended to. A technical or indifferent approach to such infraction of human rights, that too by a benevolent State, where welfare of the State is paramount may breed discontent and contempt for the rule of law amongst the populace. It is heartening to note that those gentlemen who appeared before the NHRC, conveyed these sentiments to the respective Governments and those Governments appreciating the magnitude of the problem gave up these technical grounds. This is clear from what the NHRC stated which is as under : -
It is a matter of satisfaction that the Governments of the States of Karnataka and Tami1 Nadu paid heed to the advice of the Commission. The Chief Secretary of Tami1 Nadu and Add1. Chief Secretary of Karnataka conveyed to the Commission that both the governments are ready and wi11ing to respect the decision/recommendations to be made by the Commission with regard to interim re1ief to the victims of atrocities a11eged to have been committed by joint Specia1 Task Force. They both informed the Commission that their governments have earmarked a sum of Rs.5 crores each for disbursement to the victims of atrocities committed by STF or next of kin of the deceased as the case may be, based on recommendation of the Commission. The Chief Secretary, Tami1 Nadu further informed that the Government of Tami1 Nadu had a1ready disbursed a sum of Rs.20 1acs to 12 victims/next of kin of the deceased out of 38 persons recommended by Justice Sadashiv pane1. Sri L.K. Tripathi, Chief Secretary, Government of Tami1 Nadu and Shri A.K. Aggarwa1, Additiona1 Chief Secretary, Government of Karnataka conveyed to the Commission that both the government are ready and wi11ing to respect the decision/recommendation to be made by the Commission with regard to the interim re1ief to the victims of atrocities.
Thereafter, the NHRC took note of the problem faced by the State and the police, the difficult terrain in which the police were expected to discharge their duties, the number of lives of brave police men that were lost and was very sympathetic to their plight. But, it held as under:-
:At any rate atrocities unre1ated to Operations of JSTF cannot be justified. The JSTF personne1 had to act ski11fu11y and not bruta11y. It is a matter of record that 66 persons were ki11ed in encounters. Justice Sadashiva enquiry pane1 has found that 36 persons 1ost their 1ives in suspicious encounters. Human 1ife is precious and no body is permitted under the 1aw to take it otherwise than in accordance with the procedure estab1ished by 1aw. The persons who were ki11ed in suspicious encounters were a11 triba1s or poor 1abourers. Their deaths must have brought their fami1ies on the verge of starvation. The death of one must have meant misery and suffering to many other dependent on him. Therefore, the Commission thinks it appropriate to recommend Rs.5 1akhs each as interim re1ief to be paid to the next of kin of the persons who were ki11ed in suspicious encounters to be found at seria1 No.54 to 89 in Annexure-IV of Justice Sadashiva pane1 report.
(Underlining by us)
Then it took up the case of atrocities against women and this is what the NHRC has stated at para 12 :-
Rape is a heinous crime against society. It is directed against the purity of body, mind and sou1 of the victim and 1eaves on inde1ib1e stigma in her 1ife. She is ridicu1ed by her own kith and kin. Sometimes she is even ostracized. In other words rape resu1ts in the socia1 death of the victim. Therefore, the victim of rape has a1so to get interim re1ief at par with the next of kin of those ki11ed in suspicious encounter. The enquiry pane1 has found in this case that the victim was taken to different p1aces and subjected to sexua1 assau1t by po1ice officers. It can therefore be presumed with reasonab1e degree of certainty that her devastation continued over a considerab1e period of time.
Then it also considered the torture meted out to women and it observed as under : -
According to the findings of Justice Sadashiva enquiry pane1, three fema1es were detained for 15 days, disrobed, assau1ted and subjected to app1ication of e1ectric current. Disrobing of a woman may fa11 short of rape but it certain1y brings unto1d ignominy and suffering to her. Therefore, these three women shou1d receive interim re1ief of Rs.2 1akhs each.
Then it proceeded to deal with the torture given to men, illegal detentions and also awarded compensation to them. Thereafter, at para 18 it has listed the names of 89 victims with their full addresses and awarded interim relief.
In terms of the said order, both the Government of Tamilnadu as well as the Government of Karnataka, disbursed the compensation amount to the victims. However, the Government of Karnataka could not trace 13 eligible persons out of the 89 persons mentioned in the list. Thereafter, they were able to trace 10 persons out of 13 persons and they disbursed the compensation to them. When they could not trace the remaining three persons, the Commission, on 15th October, 2008 directed the State Government to trace the remaining three persons and also disburse the relief to them at the earliest. When no report of disbursement to the aforesaid three persons were received by the Commission, by order dated 16th February, 2009, the Commission issued summons to the Chief Secretary, Government of Karnataka. It is thereafter, by communication dated 12th May, 2009 the Government of Karnataka informed the Commission that the remaining three victims are traced and the compensation amount through the cheque has been paid to them. On being satisfied about the said payment, the Commission closed the case as is clear from the order dated 17th June, 2009. It is unfortunate, after accepting the commission report, paying compensation in terms of the report, before this Court, the Government of the day forgetting the past, is attacking the said report with all possible technical grounds.
Now, the question is whether this report of the panel and the order of NHRC, would have had any bearing in the empanelment by the UPSC. The argument was in the first place the third respondent was not indicted. Secondly, this is an incident which had happened 15 years prior to the date of consideration of the claim of the third respondent. NHRC has not taken up any follow up action nor initiated any action against any policemen, in particular third respondent.
The Government has placed before the UPSC the performance appraisal dossier as per the Rules. They also forwarded a bio-data prepared by the third respondent himself, a copy of which is made available to us from the file of the Government. Para 7 of the bio-data prepared by the third respondent, which was part of the records placed before UPSC at the time of consideration of empanelment reads as under:-
In February 1993, he was posted as Commander, Task Force, Ma1aimadeshwara Hi11s to trace and arrest the notorious sanda1wood smugg1er, e1ephant poacher and ki11er Veerappan and his gang members when the force was tota11y demora1ized after repeated terrorist acts committed by the gang. In this cha11enging assignment, he worked hard in a systematic manner with zea1, determination, courage and ga11antry in extreme1y difficu1t circumstances in hosti1e and difficu1t terrain for a period of three and ha1f years. He 1ed his force from the front against the gang in a number of encounters. The gang which was having more than 150 members, 135 firearms and 3 tonnes of exp1osives in 1993 was decimated to 5 members by Apri1 1996. Under his 1eadership, 60 gang members were ki11ed in various encounters and 126 gang members and harbourers were arrested and 58 cases were registered and investigated and charge sheeted. Four of the arrested gang members were convicted to death sentence by the Supreme Court. He recovered more than 3 tonnes of exp1osives and 126 fire arms. Fortitude, courage, ga11antry, investigation, inte11igence and 1eadership ski11s, disp1ayed by him in this operation are exemp1ary and unprecedented in the anna1s of the Indian Po1ice. For his outstanding work, the Government of Karnataka rewarded his team with a cash reward of Rs.8 crores and a persona1 reward of Rs.160 Lakhs.
(Underlining by us)
Taking into consideration this exemplary service rendered by the third respondent, the President has awarded Gallantry award to him. For the aforesaid services rendered by the third respondent, he is properly rewarded and acclaimed. Certainly this is a material fact which the selection authority should take note of at the time of empanelment. The panel report pertains to the very same period, which shows how he discharged his functions as a Commandant. The said report discloses that the third respondent took charge as Commander of Karnataka STF on 18.2.1993. No specific area was assigned to any particular group either for collecting information about the activities and whereabouts of Veerappan and his gang or to comb the forest on the basis of the information. The third respondent has stated that no movement dairy was maintained by the STF officers. no officer from intelligence wing submitted any report, in writing, with respect to the place, the time and the person he visited and the information he gathered from different sources; except the radio messages recorded now and then. There is no documentary evidence to ascertain the movement of various officers of the intelligence wing. After considering the stand of the police, the evidence, the written submissions, the panel has remarked that they feel sorry and disappointed to note that in attacking the veracity of the statements of some victims of rape and molestation, the STF have not produced any material evidence to discredit the witnesses but have only used derogatory language bordering on obscenity merely to state that the witnesses are not believable. They expect some minimum standards of decency to be maintained in all proceedings of a public nature. The written submissions made by Karnataka STF appears to have spilled over the limit in this regard, in their opinion. While dealing with the allegations of rape by 11 out of 12 persons, the panel has recorded a finding to the effect that their belated evidence indicates an attempt to implicate PW-7 - the third respondent as the person directly responsible for the perpetration of torture. Except their say and their affidavits, there is nothing on record to probabilise the commission of rape. The absence of evidence from other persons who had been detained along with them and also the manner in which the affidavits are stated to have been prepared, create an element of doubt about the probability of the commission of rape. However, the evidence of MW-83 Smt. Lakshmi, a victim of rape, appears more natural and probable in the manner in which it was given. She not only said that she was taken to different places and raped but also that she used to go to the places of stay of police officers whenever directed and, after satisfying their lust, she used to get back home with a little money given to her. However, she could not identify the persons who had committed these heinous acts.
In so far as physical torture is concerned, the panel has recorded a finding that MW2 and MW5 must have been subjected to some form of torture, including the outraging of their modesty, by the STF. Similarly, MW-1 Smt. Erammal must also have suffered the same indignity. Dealing with the allegations of torture against the third respondent, the panel has recorded a finding that they are unable to understand as to how she could tell that the third respondent had applied electricity to her body. It is unbelievable that the third respondent, the Commander of the STF, would have himself taken on the job of personally torturing her, when several other police personnel, subordinate to him, were available with him to interrogate her for getting information. The third respondent denied the allegations made against him. He also stated that he never went to the houses of any of the suspects to bring them for interrogation. This statement of the third respondent appears true and acceptable. In conclusion, they have recorded a finding that MW-83 Smt. Lakshmi, her evidence regarding rape is acceptable. Likewise they held the allegation of torture by the STF to be true, and accordingly the allegations of MWs 1, 2, 5 and 83 of torture by the STF in their custody is proved.
Dealing with the allegations of torture preceding arrest and remand of TADA cases, they have recorded a finding that the aforesaid persons had been detained informally without arrest under the law by the STF for periods extending over a few weeks or months in some cases, and subjected to torture, like ''current treatment'', assault and outraging their modesty by being disrobed, by the STF in their efforts to elicit maximum information either against Veerappan or against their kith and kin who were alleged to be supporters of Veerappan.
In so far as encounter deaths are concerned, they were of the opinion that the allegations made by some of the witnesses regarding the veracity of the encounters, as recorded by the police, cannot be totally brushed aside as baseless. Therefore, they held that the families of the deceased victims in the six cases in which firing seems to have been done at very close CONTACT range and the twelve connected cases in which the victims had been fired at from both sides, the front as well as the back, the families on the deceased victims deserve to be compensated suitably by payment of substantial monetary relief. Finally, they held that when an encounter by itself becomes ''suspect'' because of the suspicious features surrounding any one of the deaths ascribed to that encounter, the benefit of compensation should be extended to all the deceased victims of that encounter.
Finally the panel concluded by holding that having regard to the doubtful features of the evidence they were of the considered opinion that it is well high impossible, at this stage and distance of time, to fix the identify of the police personnel involved in the allegations which have been held as true as far as the injuries suffered by the victims are concerned, more particularly where it was admitted by some witnesses that they were kept blind-folded in the workshop.
Chapter - VII contains the observations and recommendations of the Commission. They observed that while some restraint on the movement of persons under prolonged interrogation is understandable in the context of the prevailing situation, excesses committed by the STF in the course of interrogation in brazen violation of human rights cannot be justified. The manner in which the STF of both States had conducted their operations in this area carried with it ample scope for the commission of such excesses. In the absence of any in-built mechanism to guard against such excesses resulting from professional anxiety to secure results, it is believable that the STF personnel had committed some excesses. When the panel specifically questioned the Commanders of the 2 STFs, Walter Davaram, Commander of Tamilnadu, STF, could not cite any special instructions he had issued in this regard. The third respondent, Commander of Karnataka STF, produced a circular dated 23-8-1995 issued by him as instructions to the police personnel under his command in this matter. The panel observed that though the third respondent took charge as Commander of the STF on 18- 2-1993 and it is strange that he issued the aforesaid instructions only after two years of his taking charge. They further observed that most of the allegations of excesses made by witnesses before the Panel relate to the period 1993-94, prior to the issue of written instructions by the third respondent. The third respondent has further clarified that those instructions issued by him on 23-8-1995 were meant for five additional platoons specially ordered by Government for the protection of some villages affected by the killing of 11 Soligas by Veerappan and his gang in August 1995. He has specifically stated that prior to 23-8-1995, he had not issued any instruction in this regard for the regular STF personnel. Finally the panel has observed that it is unfortunate that the need for guarding against excesses by the STF in the prevailing situation was not adequately realised at the commending levels in both the STFs.
Finally they recommended that there is a need for enforcing strict discipline in the conduct of police personnel engaged in such operations, particularly in situations where they have to interact with civilian population. The commanding officers at higher levels must accept their personnel responsibility to ensure propriety of conduct of the entire personnel under their command in this matter. The commanding officers should not rest content with remote and indirect supervision in this regard. They should issue detailed orders to all the personnel in this regard, and strictly enforce the orders during operations.
The State Governments/Police filed their objections to the said findings. The NHRC presided by Hon''ble Justice Shivaraj Patil, Retired Judge of the Supreme Court, who was the Acting Chairperson of NHRC and Hon''ble Justice Y.R. Bhaskar Rao, former Chief Justice of this Court and other two members over-ruled the objections and held that any rate, atrocities unrelated to operations of JSTF cannot be justified. The JSTF personnel had to act skillfully and not brutally. It is a matter of record that 66 persons were killed in encounters. Justice Sadashiva enquiry Panel has found that 36 persons lost their lives in suspicious encounters. Human life is precious and nobody is permitted under the law to take it otherwise than in accordance with the procedure established by law. The persons who were killed in suspicious encounters were all tribals or poor labourers. Their deaths must have brought their families on the verge of starvation. The death of one must have meant misery and suffering to many other dependant on him. Therefore the Commission thinks it appropriate to recommend Rs.5 lakh each as interim relief to be paid to the next of kin of the persons who were killed in suspicious encounters to be found at serial No.54 to 89 in Annexure IV of the Report. They also held that the enquiry Panel has found that the victim was taken to different places and subject to sexual assault by Police Officers. It can therefore be presumed with reasonable degree of certainty that her devastation continued over a considerable period of time. Therefore the victim of rape has also to get interim relief on par with the next of kin of those killed in suspicious encounter. Further, they held that three females were detained for 15 days, disrobed, assaulted and subjected to application of electric current. Disrobing of a women may fall short of rape, but it certainly brings untold ignominy and suffering to her. Therefore, those three women should receive interim relief of Rs.2 lakhs each.
From the report it is now clear atrocities are committed by the policemen. The State and the police in their comments categorically have stated that they would take follow up action. It is not in dispute till today they have not identified the perpetuators of those crime and no action is taken against one individual police man.
Therefore, we are of the view when the service records of the third respondent was placed before the UPSC which included his tenure as a Commandant of the STF from 1993 to 1996, for 3 1/2 years and when he has given a graphic description of what he has done and how that service has been considered and he has been duly rewarded both by the President and the State, it was necessary to place before the UPSC the entire service rendered by him during the said period, as reflected in the reports of the panel and NHRC orders and not, only a part of it. The factual finding contained in the report of Justice Sadashiva panel and the order passed by NHRC, which also refers to the very same period, is a material aspect which ought to have been placed by the Government before the UPSC. In the absence of that material, the assessment of the suitability of the third respondent by the UPSC to be empaneled, to head the State Police force is vitiated.
In this context, it is necessary to recapitulate the procedure which is prescribed by the Apex Court in Prakas h Singh''s case for empanelment. The UPSC was expected to take into consideration three factors i.e, (a) length of service; (b) very good record and (c) range of experience. They have designedly and consciously used the word "very good record" and not "very good annual service record". The annual service record is also one of the inputs which forms part of the record of a public servant. Therefore, if there is a record which deals with his service, which has a direct bearing in the matter of deciding his suitability to a higher post, certainly that record would be a relevant record to be placed before the selection authority i.e., UPSC. In this context, the learned Advocate General brought to our notice, Section 3 of the All India Services Act, 1951 which reads as under:
Regulation of recruitment and conditions of services - (1) The Centra1 Government may, after consu1tation with the Governments of the States concerned [inc1uding the State of Jammu and Kashmir], (and by notification in the Officia1 Gazette) make ru1es for the regu1ation of recruitment, and the conditions of service of persons appointed to an A11 India Service.
In exercise of the powers conferred by sub-section (1) of Section 3 of the aforesaid Act, the Central Government has made the All India Services (Performance Appraisal Report) Rules, 2007. Rule 2 of the said Rules contains definition clause, the relevant definitions are as under:
(c) "empanelment" means the process of assessing the suitabi1ity for appointment at the 1eve1 of Joint Secretary and above as we11 as equiva1ent posts in the Government of India;
(f) "performance appraisal report" means the performance appraisa1 report referred to in ru1es 4 and 5;
(g) "performance appraisal dossier" means the compi1ation of the performance appraisa1 reports written on a member of the Service, referred to in ru1e 3, and inc1udes such other documents as may be specified by the Centra1 Government, by genera1 or specia1 order, in this beha1f;
Rules 4 and 5 of the said Rules read as under:
Form of the performance appraisal report. - (1) The reporting authority sha11 write the performance appraisa1 report in such form as may be specified by the Centra1 Government in Schedu1e 2 and the officer reported upon and the reporting, reviewing and accepting authority sha11 ensure that the portions of the forms which are to be fi11ed in by them are comp1eted by them within the time 1imit specified in this beha1f by the Centra1 Government: Provided that the Centra1 Government may make such additions in the form or the cut-off dates so specified as may be considered necessary or desirab1e. Provided further that the performance appraisa1 report sha11 a1so be written in such form as may be specified in this beha1f by the Centra1 Government for the members of the Service on deputation and be treated as mandatory input for empane1ment and promotion and p1aced in the performance appraisa1 dossier: Provided a1so that the performance appraisa1 report sha11 a1so be written for members of Service who are on training or study 1eave in such form as may be specified in this beha1f by the Centra1 Government.
Performance appraisal reports.- (1) A performance appraisa1 report assessing the performance, character, conduct and qua1ities of every member of the Service sha11 be written for each financia1 year or as may be specified by the Government in the Schedu1e 2:
Provided that a performance appraisa1 report may not be written in such cases as may be specified by the Centra1 Government, by genera1 or specia1 order:
Provided further that if a performance appraisa1 report for a financia1 year is not recorded by 31st of December of the year in which the financia1 year ended, no remarks may be recorded thereafter and the officer may be assessed on the basis of the overa11 record and se1f assessment for the year, if he has submitted his se1f-assessment on time.
(2) Subject to the provisions of sub-ru1e (4), a performance appraisa1 report sha11 a1so be written when either the reporting or reviewing authority or the member of the Service reported upon re1inquishes charge of the post, and, in such a case, it sha11 be written at the time of the re1inquishment or ordinari1y within one month of such re1inquishment.
"Documents to be maintained in the performance Appraisal Dossier:-
(i) A Curricu1um Vitae to be updated annua11y on the basis of the performance appraisa1 reports and a five-year1y Curricu1um Vitae update submitted by the officer reported upon.
(ii) The performance appraisa1 reports earned throughout the career.
(iii) Certificates of training academic courses attended after joining service, study 1eave.
(iv) Detai1s of books, artic1es and other pub1ications.
(v) "Appreciation 1etters" from Government or Secretary or Head of Department or specia1 bodies or commissions.
(vi) Reports of medica1 check-ups.
(vii) Copy of order imposing any of the pena1ties specified in the A11 India Services (Discip1ine and Appea1) Ru1es, 1969 and fina1 resu1t of inquiry into a11egations and charges against a member of the Service.
(viii) Warnings or disp1easure or reprimands of the Government.
Relying on these provisions, it was contended that the Apex Court, in INDIAN ADMINISTRATIVE SERVICE (S.C.S) ASSOCIATION, U.P. AND OTHERS vs UNION OF INDIA AND OTHERS (1993 SUPP (1) SCC 730), at para 6, it is held as under:
Under Section 3(2) of the Act, every ru1e made by the Centra1 Government u/s 3(1) and every regu1ation made thereunder or in pursuance of any such ru1es, sha11 be 1aid, as soon as may be, after such ru1e or regu1ation is made, before each House of Par1iament whi1e in session. Before the expiry of the session, if both Houses agree to make any modification to such ru1es or regu1ations or both Houses agree that such ru1es or regu1ations shou1d be made, the ru1e or regu1ation sha11 thereafter have effect, on1y in such modified form or be of no effect as the case may be so, however, that any such modification or annu1ment sha11 be, without prejudice to the va1idity of anything previous1y done under that ru1e or the regu1ation. Thereby the ru1es or regu1ations made in exercise of the power u/s 3(1) of the Act regu1ating recruitment and the conditions of service for persons appointed to an A11 India Service and statutory in character.
Therefore, it was submitted that the said Rules have the force of law and all that is prescribed in the said Rules is complied with. It does not provide for submission of panel report or NHRC order or proceedings.
Then, reliance was placed also on the passage from Dr. Smiths JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 1980 edition, at page Nos. 340-341, which reads as under:
In determining what factors may or must be taken into account by the competent authority, the courts are faced with prob1ems of statutory interpretation in the so1ution of which they themse1ves in practice exercise a wide discretion. If re1evant factors are specified in the enab1ing act it is for the courts to determine whether they are factors to which the authority is compe11ed to have regard and, if so, whether they are to be construed as being exhaustive. If the re1evant factors are not specified (e.g. if the power is mere1y to grant or refuse a 1icence, or to attach such conditions as the competent authority thinks fit), it is for the courts to determine whether the permissib1e considerations are imp1ied1y restricted, and, if so, to what extent a1though when the courts conc1ude that a wide range of factors may proper1y be considered, they wi11 be re1uctant to 1ay down a 1ist with which the authority wi11 be required to comp1y in every case.
Reliance is also placed on a passage from Sir William Wade on the Administrative Law regarding what is relevant and irrelevant considerations, which is extracted as under$-
There are many cases in which a pub1ic authority has been he1d to have acted from improper motives or upon irre1evant consideration, or to have fai1ed to take account of re1evant considerations, so that its action is u1tra vires and void. It is impossib1e to separate these c1ean1y from other cases of unreasonab1eness and abuse of power, since the court may use a variety of interchangeab1e exp1anations, as was pointed out by Lord Greene. Regarded co11ective1y, these cases show the great importance of strict1y correct motives and purposes. They show a1so how fa11acious it is to suppose that powers conferred in unrestricted 1anguage confer unrestricted power. Lord Esher MR stated the ''irre1evant considerations'' doctrine in a case where a vestry had mistaken1y fixed the pension of a retiring officer on the erroneous assumption that they had no discretion as to the amount: But they must fair1y consider the app1ication and not take into account any reason for their decision which is not a 1ega1 one. If peop1e, who have to exercise a pub1ic duty by exercising their discretion take into account matters which the courts consider not to be proper for the exercise of their discretion, then in the eye of the 1aw they have not exercised their discretion. The doctrine app1ies equa11y to fai1ure to take account of some consideration which is necessari1y re1evant, such as the respective costs of riva1 proposa1s or the avai1abi1ity of more suitab1e 1and. Cooke J exp1ained in a New Zea1and case that ''the more genera1 and the more obvious1y important the consideration, the readier the court must be to ho1d the Par1iament must have meant it to be taken into account''. Under many statutes the discretion conferred is extensive, and it is no concern of the court to restrict it artificia11y by 1imiting the considerations that are re1evant. A minister may be entit1ed to take account of every factor that may affect the pub1ic interest, but it does not fo11ow that he is ob1iged to do so. In another New Zea1and case Cooke J pointed out ''the difference between ob1igatory considerations (i.e., those which the Act express1y or imp1ied1y requires the Minister to take into account) and permissib1e considerations (i.e., those which can proper1y be taken into account but do not have to be)''. Where there is over1ap between different areas of po1icy, for examp1e housing and p1anning, the court may dec1ine to make a rigid dichotomy between them so as to confine a housing authority to ''housing'' considerations on1y. The court wi11 intervene in two situations. The first is where the authority has acted on grounds which the statute never intended to a11ow, for examp1e where fees charged for street traders'' 1icences were based upon what the market wou1d bear rather than administration costs. The second is where the authority has fai1ed to take proper account of something that the statute express1y of imp1ied1y required it to consider, even though it may not have been known at the time. But under this second head the imp1ied requirement may be wide. In deciding whether to deport an immigrant the Secretary of State ''on c1assic Wednesbury princip1es... is bound to take account of a11 re1evant considerations'', so that an adjudicator misdirects himse1f in 1aw if he refuses to take account of the immigrant''s specia1 va1ue to his own community. A threat by that community to instigate a strike, on the other hand, wou1d be improper and therefore irre1evant"
Relying on the aforesaid passages, it was contended that when once the statute prescribes what are the documents which have to be submitted, there is no obligation on the part of the Government to submit any additional documents which are not prescribed under law. If any other documents are produced other than what is prescribed under law, it would be a case of irrelevant material being placed on record, if taken into consideration by the selection authority, the empanelment would be vitiated for taking into consideration irrelevant material.
This argument of the learned Advocate General do not take into consideration the process of selection applicable to the case in hand. The selection process undertaken is not under the aforesaid Act or the Rules. It is in pursuance of the judgment of the Apex Court in Prakas h Singh''s case. Otherwise, UPSC has no role to play in the selection under the aforesaid Act and Rules at all. Therefore, in the judgment of the Apex Court, the requirement is of ''very good record'' and not only the Performance Appraisal Report'' as contained in the Rules. All record pertaining to the candidate which has bearing on the suitability for appointment has to be produced. As set out above, if the Performance Appraisal Report and the bio-data of the third respondent produced before the UPSC refers to his service during the period he was working as Commandant of the Task Force, this panel report and NHRC orders and proceedings which also pertain to the said period of service, constitute a relevant record to be produced and to be looked into by the UPSC. That apart, the Apex Court''s direction is not confined only to ''very good record'' or ''service record''. It also directs the UPSC to take into consideration ''length of service'' and ''range of experience'' in addition to very good record. As is clear from the records made available, third respondent has varied experience in the course of his service. One such experience is, the experience as the Commandant of the STF. The extracts from the panel report shows how he has functioned in that capacity. The atrocities committed by the said Task Force were under his command and how the innocent people were tortured, which resulted in the Panel recommending payment of compensation, which was upheld by the NHRC and consequently the Government has paid the compensation to 89 persons. This functioning of the third respondent for the aforesaid period which is a part of the service, gives an insight into his range of experience, which is put forth by him in his bio data. Therefore, the observations of the Panel and the NHRC orders for this period about his style of functioning is certainly a relevant material which ought to have been taken note of by the UPSC at the time of finding out the suitability of the third respondent to be empaneled.
The Apex Court in the case of Centre for PIL and Another Vs. Union of India (UOI) and Another, has emphasized the importance of placing before the selection authority/empanelling authorities all the records pertaining to the candidate to decide the suitability of the candidate to be appointed to the post. Clause (vi) of para 55 reads as under:-
(vi) The empane11ing authority, whi1e forwarding the names of the empane11ed officers/persons, sha11 enc1ose comp1ete information, materia1 and data of the concerned officer/person, whether favourab1e or adverse. Nothing re1evant or materia1 shou1d be withhe1d from the Se1ection Committee. It wi11 not on1y be usefu1 but wou1d a1so serve 1arger pub1ic interest and enhance pub1ic confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifica11y brought to the notice of the Se1ection Committee
Under1ining by us
Therefore, it is clear that it is not only the annual confidential report/performance appraisal report which is to be placed for consideration. It is one such record which constitutes the records to be placed before the empanelling authority. In fact, the word used by the Supreme Court is therefore '' very good record'' and therefore all record pertaining to the candidate including the annual performance record is to be placed. The panel report and the NHRC orders are in the nature of records showing the range of his experience as a Commandant of the Police Force, which is assigned a particular task. This is some thing different from the routine work. It is also a part of length of his service, i.e., 3 1/2 years out of his 33 years of service. It is a relevant material to be considered by the UPSC, when it is called upon to decide the suitability of the person to head the State Police Force. The Supreme Court in the aforesaid judgment has made it clear that while forwarding the names of the empaneled officers/persons shall enclose complete information, material and data of the concerned officer/person, whether favourable or adverse. Nothing relevant or material should be withheld from the selection committee. Therefore, it presupposes that the empaneling authority should have complete information, material and data of the concerned officer, whether favourable or adverse. They should have all relevant or material information before empaneling. Hence, the Government is under an obligation to place before the UPSC all the aforesaid information. If any relevant and material record is not placed for consideration, it amounts to withholding or suppressing relevant material. If it is not placed it would amount to non-consideration of relevant material which would affect the process of appraisal, selection, which in turn would vitiate the empanelling itself and the consequent orders.
This argument brings to the fore the importance to be attached to the appraisal report. In this context, it is relevant to see what the UPSC has stated about these records.
The Minutes of the meeting of the empanelment Committee is produced by the fourth respondent. The relevant paras reads as under:-
5.2 It was brought to the notice of the Committee that, as informed by the State Govt., no discip1inary/crimina1 proceedings were pending or contemp1ated and there were no adverse remarks in the ACRs/APRs of the aforesaid officers.
5.3 It was a1so brought to the notice of the Committee that the State Govt. certified the integrity in respect of a11 the officers in the zone of consideration.
5.4 As intimated by the State Govt., no pena1ties were imposed on the e1igib1e officers.
6.1 The Committee took into consideration the 1ast 10 years'' ACRs of the officers upto the year 2010-11 whi1e assessing the officers. The Committee went through the records of the e1igib1e officers and made their assessment after de1iberating on the qua1ity of the officer as indicated in the various co1umns recorded by the Reporting/Reviewing officer/Accepting Authority in the ACRs for different years and then fina11y arrived at the c1assification to be assigned in respect of those years. The Committee a1so took into account orders regarding appreciation for the meritorious work done by the concerned officer. On1y those officers who were assessed by the Committee as at 1east "Very Good" for each of the preceding 10 years were considered for inc1usion in the pane1
6.2. The Committee observed that one of the criteria for se1ection indicated by the Hon''b1e Supreme Court was the range of experience for heading the Po1ice force. It was a1so observed that no guide1ines had been 1aid down for determining the range of such experience. In view of this, the Committee de1iberated on this aspect and took into account the experience of the officers in the core areas of po1icing 1ike 1aw and order maintenance, crime investigation, administration etc., a1ongwith experience in the fie1ds of vigi1ance/inte11igence/training.
From the above, it is clear that the Committee took into consideration the last ten years ACRs of the Officers upto the year 2010-11 while assessing their merits. They looked into the particulars mentioned in various columns recorded by the reporting and reviewing Officers, accepting authority in the ACRs for different years and then finally arrived at a classification prescribed in respect of those years. They took into consideration the awards regarding appreciation for the meritorious work done by the concerned Officers. Only those Officers who were assessed by the Committee as atleast "very good" for each of the preceding ten years were considered for inclusion in the panel. They took note of the judgment of the Supreme Court in Prakash Singh''s case, which has prescribed the range of experience for heading the police force as one of the criteria. As no guidelines were prescribed, they took into account the experience of the Officers in the core areas like law and order maintenance, criminal investigation, administration etc., along with experience in the field of vigilance, intelligence and other fields and empanelled their names. While considering the range of experience certainly the UPSC has taken into consideration his service and experience for a period of 3 1/2 years as the Commandant of Task Force. As is clear from the material on record there were serious allegations of rape, torture and other excesses by the JSTF against tribals. NHRC constituted the panel. Panel submitted the report. The said report refers to the role of the third respondent as Commandant of the Task Force and has recorded findings holding some of the allegations are true. It also held how the Commandants should have conducted themselves to prevent such atrocities. Therefore, this report and the NHRC order are relevant materials to show the range of the experience of the third respondent as a Commandant of a Task Force for a period of 3 1/2 years. This report admittedly was not produced before the UPSC and therefore they have not considered the same, thus, it has vitiated their judgment.
Lastly, the learned Advocate General contended that as the Commission had not initiated any proceedings under Sections 17 and 18 of the Act, either against the third respondent or against any police official and found them guilty of any of the allegations alleged against them and on the contrary the Commission has closed the case on being satisfied that all the victims are paid compensation, the said report has no relevance whatsoever in considering the suitability of the third respondent to the post of DG and IGP of Police.
If the Commission had initiated any proceedings under Sections 17 and 18 of the Act and found them guilty, it can only recommend to the Government for initiation of proceedings for prosecution. If such proceedings of prosecution are initiated and such official is found guilty, then it would be a case of the said official being disqualified from holding the post. It would not be a case of consideration of the suitability of the person to hold the said post. In the instant case, it is nobody''s case that the third respondent is disqualified to hold the said post. The grievance is the findings recorded by the panel in its report, if it had been properly considered in the proper perspective, probably the UPSC would not have found the third respondent suitable to hold the said post. For consideration of suitability what is important is the observations made by the panel consisting of such eminent persons and not whether the third respondent is found guilty and disqualified to hold the said post and therefore we do not find any substance in the said contention.
From the aforesaid discussion it is clear that the functioning of the third respondent as commandant of the STF, Karnataka, for a period of 3 1/2 years, is a relevant and material factor for consideration of his claim for emplanelment to head the State Police Force. Only a part of the said record was placed before the UPSC. The remaining part as contained in the Panel Report and NHRC order/proceedings was not placed before the UPSC. The circumstances under which the Panel came to be appointed is clearly set out in the earlier paragraphs. There was a public out cry. The said Panel has recorded a finding of rape, torture, disrobing of women, giving electricity to various parts of the body of persons who were investigated. The third respondent was Commandant of the said STF for a period of 3 1/2 years. The perpetuators of these atrocities could not be identified at all, let alone taking any action against them. This length of service and his range of experience during the said period, how he has faced the challenges during the said period while commanding his force is a very; vital and material information which ought to have been taken note of by the UPSC before empanelling him. Because they are empanelling persons who are going to head the Police Force of the State. Therefore, his experience and the style of functioning, while he was heading a small Force like the STF was very much relevant. Institution is more important than an individual while empanelling. The criterion of the candidate being assessed by the Committee as "very good" for each of the preceding 10 years cannot be the sole consideration. It would be one of the aspects which has to be taken into consideration. When the Supreme Court in Prakash Singh''s case makes it clear that the UPSC has to take into consideration the length of service and range of experience, the assessment cannot be confined to only 10 years of service record. The words used are "LENGTH O F SERVICE'' and "RANGE O F EXPERIENCE". The incident in question relates to the period 1993 to 1996. However, the Panel was constituted on 28.06.1999. The Panel submitted its Report on 01.12.2003. The order of NHRC is dated 15.01.2007. The NHRC closed the case on 17th June 2009. The date on which the meeting of empanelment took place is on 30.11.2011. These dates speak for themselves. The Report and orders were well within the knowledge of the Government, but still they did not place the same before the UPSC. The Government is not accountable to the Courts for the choice made, but the Government is accountable to the Courts in respect of the lawfullness/legality of its decisions when impugned under the Judicial review jurisdiction. When the Government was under an obligation in view of Prakash Singh''s case, to place before the UPSC, the material showing the length of service and the range of experience of the third respondent, they failed to perform the said obligation. It resulted in UPSC failing to consider the said relevant material before empanelment. Thus the empanelment was vitiated, is non est in law, in so far as the third respondent is concerned. Consequently, his appointment also becomes void and non est in the eye of law.
MERIT REVIEW OR JUDICIAL REVIEW
It is contended that once the UPSC has selected and empanelled the names, irrespective of the seniority or merit, whatever that might had prevailed on the UPSC, the Chief Minister of the State has the prerogative to pick up the person of his choice among the empanelled candidates ignoring the seniority and merit. In support of the said contention, reliance was placed on the judgment of the Apex Court in the case of M.V. THIMMAIAH AND OTHERS vs UNION PUBLIC SERVICE COMMISSION AND OTHERS [2008 AIR SCW 229] where it was held as under : -
This power is not given to the Tribuna1 and it shou1d be c1ear1y understood that the assessment of the Se1ection Committee is not subject to appea1 either before the Tribuna1 or by the Courts. One has to give credit to the Se1ection Committee for making their assessment and it is not subject to appea1. Taking the overa11 view of the ACRs of the candidates, one may be he1d to be very good and another may be he1d to be good. If this type of interference is permitted then it wou1d virtua11y amount that the Tribuna1s and the High Courts started sitting as Se1ection Commissioner or act as an appe11ate authority over the se1ection. It is not their domain, it shou1d be c1ear1y understood, as has been c1ear1y he1d by this Court in a number of decisions.
There is no quarrel with the said proposition of law. This Court nor the Tribunal is acting as an appellate authority over the decision of the Government to appoint the third respondent. It is not a merit review but judicial review. We are only concerned with the decision - making process undertaken by the U.P.S.C. in terms of the Judgment of the apex Court in PRAKASH SINGHHs case. The Government was under an obligation to place before the U.P.S.C. the material showing the length of service and range of experience of the third respondent, to enable the U.P.S.C. to come to an informed decision, keeping in mind the fact that the person to be empanelled, if appointed, would be heading a State Police Force. The said decision making process is vitiated because of non-consideration of relevant material, and consequently the decision of empanelment is void. The impugned order of appointment is based on such empanelment which is void and non-est in law. Therefore, the said order of appointment is also void. It is not set aside on the ground that the ACR of the third respondent is not good nor on the ground that he has no merit. Therefore, we do not find any merit in the said contention.
In so far as the argument that the applicant did not seek for setting aside the empanelment and he could not have challenged the empanelment as he was not the aggrieved person as his name also finds a place in the list of persons empaneled and that the Tribunal committed a serious error in setting aside the empanelment when the request was for setting aside the appointment is concerned, we do not find any substance in the same. The empanelment was done on 30.11.2011 after 2 PM. Before 5 PM the order appointing the third respondent as DG and IGP to the post on the very same day was issued. There was no time gap between the issue of the list of empanelment and the issue of the appointment order. Therefore, rightly the applicant challenged the order of appointment which included a challenge to the empanelment itself. As rightly pointed out by the learned counsel for the applicant when he was seeking a larger relief, this relief of setting aside of the empanelment is included in the said relief. But, in the body of the application and the grounds urged it is clearly stated that the empanelment is bad. Though the applicant is also one such person who is empaneled, it cannot be said that he is not an aggrieved person because his grievance was if the NHRC proceedings and panel report had been considered by the UPSC it would have disclosed that the third respondent is not suitable to hold the said post and consequently they would not have empaneled him at all. If he had not been empaneled, the only person who was duly qualified to hold the said post was the applicant and the Government had no option except to appoint him. Therefore it cannot be said that the applicant was not an aggrieved person. It is in this context, the contention that the Tribunal had no jurisdiction to grant the relief sought for is without any merit. If the empanelment is bad, then the order of appointment is also bad.
Accordingly, we answer the points for consideration as under: -
(I) There is a specific reference to the name of the third respondent in the pane1 report at
(i) paragraph 59 page 54
(ii) paragraph 33 pages 390-392
(iii) paragraph 35 page 396
which is in the nature of adverse comment, with respect to his functioning as a Commandant of the Task Force.
(II) The findings recorded by the pane1 to the effect that
(a) the a11egation of rape in so far as Smt. Lakshmi is proved (vide paragraph 47 - interna1 page 120 & paragraph 57 - interna1 page 129).
(b) The finding that MWs 2 and 5 must have subjected to some form of torture inc1uding the outraging of modesty by the STF and simi1ar1y MW1-Eramma1 have suffered indignity (para 53 interna1 page 125 and para 91 - page 171) coup1ed with the fact in Annexure-IV the particu1ars of the victims of the torture they suffered has been c1ear1y set out, wou1d show that the STF commanded by the third respondent committed rape, torture, disrobing of women, giving e1ectrica1 current and other excesses as set out therein.
(c) The finding that the a11egations of encounter deaths cannot be brushed aside as base1ess. Firing seems to have been done at very c1ose contact range and in 12 connected cases the victims had been fired at from both sides the front as we11 as back. When an encounter by itse1f becomes `suspect'' because of the suspicious features surrounding any one of the deaths ascribed to that encounter, the benefit of compensation shou1d be extended to a11 the deceased victims of that encounter. (para 20 page 355).
(d) The finding that the excesses committed by the STF in the course of interrogation in brazen vio1ation of human rights cannot be justified. (para 29 page 387)
Therefore, the aforesaid pane1 report and the orders passed by the NHRC which uphe1d the findings in the report and recommended for payment of compensation constitutes relevant and material information and data which ought to have been p1aced before the UPSC by the State.
(III) As the said pane1 report/NHRC orders are withhe1d from the UPSC/not p1aced before the UPSC, the empane1ment of the third respondent by the UPSC is vitiated and consequent1y the order appointing the third respondent as DG and IGP of Karnataka is a1so vitiated.
In the light of the aforesaid discussions and the findings of the panel and the order passed by the NHRC, we do not see any merit in both these petitions. Accordingly, we pass the following order: -
The writ petitions are dismissed. Parties to bear their Own costs.