Judgment :- 1. 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 as a result of non-application of mind and due to deliberate suppression of materials facts and consequently quashing both the empanelment of the third respondent as a candidate eligible for consideration and Annexure-A1-notification appointing him as DG & IGP. 2. 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. FACTURAL MATRIX 3. The applicant is an IPS officer joined the Indian Police Service, in the year 1977. He has a careers planning 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. 4. 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. 5. 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 Vs. Union of India and Others’ reported in 2006 (8) SCC 1. The State Government sent five names in the order of seniority. 6. 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. 6. 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. 7. 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. Achutha 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. 8. In the application filed, the applicant had 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 dehumanizing 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. 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. 9. 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 portion. 10. 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. 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 keep quite 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, headed by Hon’ble Justice Sadashiva, 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. 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. 11. 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 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. 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 12. 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. 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. 13. 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 civilized 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. 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 he 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. 14. It proceeded to hole 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. RIVAL CONTENTIONS 15. 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. 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 n 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. 16. It is after such remand, we have heard the learned counsel for the parties. RIVAL CONTENTIONS 17. 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. All contentions from both sides were expressly left open. 16. It is after such remand, we have heard the learned counsel for the parties. RIVAL CONTENTIONS 17. 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. 18. 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 UIPSC. 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 UIPSC. Relying on the judgment of the Apex Court in INDIAN ADMINISTRATIVE SERVICE (S.C.S.) ASSOCIATION, U.P. AND OTHERS Vs. UNION OF INDIA AND OTHERS c/w NIROTHI LAL GUPTA AND OTHERS Vs. UNION OF INDIA AND OTHERS reported in 1993 SUPP (1) SCC 730, 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 sought 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. 19. Further he contended by virtue of the power conferred under Section 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, 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. 20. 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. 21. 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. 22. Once the UPSC empanels the names and sends it 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 COMMISSIONERreported 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. 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 COMMISSIONERreported 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. 23. 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. 24. 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. 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. 25. 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. 26. 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. 27. 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. 27. 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. 30.1.2011. 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. 28. 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 empanelled 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. 29. 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 he 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. 30. 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. 30. 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 thins 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 31. 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? POINTS FOR CONSIDERATION 31. 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 32. 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. 33. 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 law-enforcing agency to protect the rights of the citizens enshrined in the constitution. The terms and reference of the Commission were wide ranging. 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 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. 34. The Apex Court felt having regard to the gravity of the problem, the urgent need for preserving and strengthening the rule of law, total uncertainty 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:- “Selection and minimum tenure of DGP. However, as we are only concerned with the selection and minimum tenure of DGP only that portion of the direction is extracted hereunder:- “Selection and minimum tenure of DGP. (2) The Director General of Police of the State shall be selected by the State Government from amongst the three senior most officers of the Department who have been empanelled for promotion to that rank by the Union Public Service Commission on the basis of their length of service, very good record and range of experience for heading the police force. And, once he has been selected for the job, he should have a minimum tenure of at least two years irrespective of his date of superannuation. The DGP may, however, be relieved of his responsibilities by the State Government acting in consultation with the State Security Commission consequent upon any action taken against him under the All India Services (Discipline and Appeal) Rules or following his conviction in a court of law in a criminal offence or in a case of corruption, or if he is otherwise incapacitated from discharging his duties.” 35. 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 departmentof 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 36. 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 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. 37. 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. 38. 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. 38. 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 empanelment 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, leave it to the Special Bench dealing with the case of Prakash Singh & Ors. Vs. Union of India and Ors., (Writ Petition (Civil) No.310 of 1996) to examine how far the action of the State Government in superannuating the previous incumbent from the post of Director General of Police (DGP), Karnataka within less than six months of his appointment to the post was in violation of the Court’s direction and further how far the action of the State Government and the UPSC was in violation of the Court’s direction in proceeding to prepare a fresh panel for appointment to the new vacancy and making appointment of a person selected from the panel prepared by the UPSC to fill up the post of Director General of Police (DGP), Karnataka falling 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.” 39. 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. 40. 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 on 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. Another among them Sri Kuchanna Srinivasan retired on 31.10.2011. In his place on 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 41. 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. 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 42. 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 organisation, 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. 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 consistently taken the position that, in enforcing the law, the apparatus of State must, itself, act in ways that are fully in conformity with the law. it has in ways that are fully in conformity with the law. It has therefore pronounced itself repeatedly and clearly on acts such as ‘fake encounters’ which are contrary to the law and therefore, in its view, unacceptable. It has also, in this connection, laid down specific procedures that should be followed to enquire into and bring to book those who are involved in such acts. Its proceedings and directives, in this connection, are a matter of public record and have been transmitted to all State Governments for their observance. They would be applicable to the present case, as to any other. Likewise, the Commission has consistently taken the view that when acts of public servants, including those of the security forces, have resulted in the violation of the human rights of innocent citizens of the country, and not least of its most vulnerable sections, these acts must be scrupulously enquired into; further, when the results of enquiry so require, it must be ensured that appropriate compensation or other remedies are provided”. 43. 43. 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. 44. 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 45. 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 45. The front page of the report reads under: “REPORT OF ENQUIRY Into allegations of rape, torture and Other excesses by the Joint Special Task Forces of Karnataka & Tamil Nadu, against tribals 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: “15. 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: “15. The allegations of mal-treatment at the hands of the STF, as made by the witnesses examined by the Panel, may be broadly classified as follows: (i) Rape and accompanying molestation of women in police custody; (ii) Outraging the modesty of women by disrobing them and subjecting them to torture by applying chilly powder or paste to their urinal passage; (iii) Repeated torture by application of “current treatment” in which electric current at an unbearable voltage was generated in a small handy machine close-by and made to pass through different points of the victims body, including their private parts with the help of pointed electrodes; (iv) Killing of persons taking them to forest area from police custody in the name of ‘encounters’; (v) Repeated torture resulting in the death of a few after their release from police custody; (vi) Prolonged detention in police camps without regard to law and human rights and humiliating treatment by the police in a variety of ways.” 46. After setting out the allegations made in the complaints, at para 52, internal page 44, of the report, they have set out as under: “52. The tribals and others, who deposed about torture by the STF, have named 38 STF personnel as responsible for the torture and connected acts in gross violation of their human rights. All the accused personnel also tendered evidence before the Panel. 13 among them belong to Tamil Nadu police and the rest are from Karnataka Police. They include PW-1 Walter Devaram, the then Chief of the JSTF and PW-7 Shankar Bidri, the then Commander of Karnataka STF. 47. Thereafter, in the subsequent paras, they have set out the defence of police which is a blanket denial of all the allegations. Then, at para 57, they have stated as under: “57. PW-7 Shankar Bidri, the then DIG of Police, Mysore Division, took charge as Commander of Karnataka STF on 18-2-1993. However, he also continued to hold his office as the DIG of Police, Mysore Division. Then, at para 57, they have stated as under: “57. PW-7 Shankar Bidri, the then DIG of Police, Mysore Division, took charge as Commander of Karnataka STF on 18-2-1993. However, he also continued to hold his office as the DIG of Police, Mysore Division. After the formation of the JSTF, PW-7 Shankar Bidri said that he used to lead the Karnataka and Tamil Nadu Task Forces along with BSF., subject to the general powers of control, superintendence and direction of PW-1 Walter Devaram, the Chief of the JSTF. PW-7 Shankar Bidri further stated that when he took charge on 13-2-1993, police action to catch Veerappan had come to standstill. An area of about 1,600 Sq.Kms. remained totally incommunicable and out of control of the administrative machinery. He, therefore, submitted a proposal to the Government for sanction of various posts with infrastructure. The Government, by its order dated 13-4-1993, sanctioned all the posts with infrastructure as sought and, in pursuance of the order, 114 police officers of different cadres were deputed to the STF and 5 platoons of KSRP were added to the existing 11 platoons.” 48. Then, at para 59, they have held as under: “59. It is seen from the statements of the STF personnel the 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; Every group was empowered to visit any place 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 place together also, in compliance with the instructions issued by the Commander or Investigation 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 intelligence work used to report to the investigating officers about the information they collected, the places visited and the number of days they had stayed there to collect such information. The investigating officer would, in the normal course, record these details in the concerned case diary and, except this document, there is no other document to show the movements of the officers of the intelligence wing. The investigating officer would, in the normal course, record these details in the concerned case diary and, except this document, there is no other document to show the movements of the officers of the intelligence wing. However, PW-36 M.C. Mariswamy, one of the investigating officers, said that no officer from intelligence with 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. He also said that no radio message was received in respect of any suspect having been apprehended at any place in Tamil Nadu.” 49. The panel, after considering the evidence of the police personnel and their contentions, has observed as under as internal page No.74, link page 78; “15. The Karnataka STF have branded the evidence of all witnesses against them as false, concocted and motivated to secure compensation. They stated that the NGOs and others supporters of Veerappan and his gang members have publicly announced in the area that “whoever makes allegations against police regarding torture will be benefited by two lakh, those making allegations of rape will get five lakh and those making allegations of killing will get Rs.10,00,000/-. V.P. Gunasekaran gave evidence before the Panel as MW-193. No suggestion relating to the allegations made against him in their written submission was made to him during his cross-examination by the two STF representatives. No police officer has made any statement in his evidence before the Panel, even remotely suggesting such male find motives against MW-193 V.P. Gunaseakran. 16. We feel sorry and disappointed to note that in attacking the veracity of the statements of some victims of rape and molestation, the 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. We expect some minimum standards of decency to be maintained in all proceedings of a public nature. The written submission made by Karnataka STP appears to have spilled over the limit in this regard, in our opinion. We are only recording this observation in passing, while proceeding to consider their submission felly and strictly on its merits. (Underlining by us) 50. The written submission made by Karnataka STP appears to have spilled over the limit in this regard, in our opinion. We are only recording this observation in passing, while proceeding to consider their submission felly and strictly on its merits. (Underlining by us) 50. Chapter IV of the report contains the appraisal of evidence by the panel. At paras 2, 14, 15 & 16, they have observed as under: “2. From the materials before the Panel, two possibilities would emerge-one against the STF and the other against the victims. Since Veerappa has successfully remained at large and is also active in the interior forest beyond the reach of the STF for a very long 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 locals to find out the hide-outs of Veerappan and his gang, we cannot rule out the possibility of the STF getting frustrated and becoming very aggressive due to the pressure of public opinion, besides the directions from their higher-ups to intensify their efforts, resulting in their arresting and detaining several people from the area for prolonged 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 relatives, their own personal involvement in some criminal cases, the threatening influence of Veerappan and his agents over the daily lives of villagers in the remote forest area and also the personal interest to make a financial gain from the compensatory monetary relief that may be provided by the Government, the possibility of some of the locals coming up with false of incorrect or exaggerated statements of allegations, cannot be ruled out. The allegations, therefore, have to be considered with great care and caution with reference to the attending circumstances. While assessing the evidence of victims, their social back-ground, occupation, education, place of living, the cause and duration of their sufferings and the financial benefit they may be expecting from the findings in this inquiry have to be kept in mind. 4. As mentioned earlier, 193 persons gave evidence before the Panel as victims. 140 persons, out of 193, have deposed that they were victims of atrocities, having suffered personally at the hands of the STF. 4. As mentioned earlier, 193 persons gave evidence before the Panel as victims. 140 persons, out of 193, have deposed that they were victims of atrocities, having suffered personally at the hands of the STF. Eleven of them have stated that they were also raped by the STF in addition to being subject to physical torture. The rest having alleged that the STF took them blindfolded from their houses to various camps of the STF, detained illegally for periods varying from three days to one and a half years. The STF had stripped them naked and administered ‘electric current’ to their body at various points, like ear-lobes, back of the neck, tip of their nose, nipples and their private parts. They also stated that their legs were fettered with chain; their limbs tied with rope behind their back and they were hung from the roof of the building and beater mercilessly with ‘Lathis’ and clubs, and some have also said that they were hit with the butt-end of rifles. 15. 48 among them admitted that they were not physically tortured personally even though they suffered a great deal due to the atrocities committed against their kith and kin. 16. Eight among them have deposed that either their father or their spouse had died due to torture after they were released from the illegal custody of the STF. Six have stated that the earning member of their family disappeared from the custody of the STF and their whereabouts are not known yet. Six others are stated to have suffered permanent disability on account of the STF torture. One among them deposed that he was subjected to torture at Thattekere camp for twenty days and employed thereafter as a Cook in the camp for about a years and a half. Thereafter, the Inspector employed him for the construction of his house and that of his sister without paying him any remuneration. 51. As the evidence tendered by these witnesses dealt with various aspects of torture, at para 20, they categorised them as under: “20. Since the evidence tendered before the Panel covers different forms of torture, some accompanied by rape, some resulting in death and so on, we consider, it would be appropriate to consider the evidence separately, under different heads, and give our conclusions under each head. Accordingly, we take first the allegations of rape.” 52. 11 persons-had complained of rape. Since the evidence tendered before the Panel covers different forms of torture, some accompanied by rape, some resulting in death and so on, we consider, it would be appropriate to consider the evidence separately, under different heads, and give our conclusions under each head. Accordingly, we take first the allegations of rape.” 52. 11 persons-had complained of rape. Their evidence was considered and at internal page 104, at the end of para27, it was observed as under: “Their belated evidence indicate an attempt to implicate PW-7 Shankar Bidri as the person directly responsible for the perpetration of torture. Except their say and their affidavits, there is nothing on record to probabalise 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.” (underlining by us) 53. 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: “36. The evidence MW-83 Smt. Lakshmi, another 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.” (underlining by us) 54. Finally with reference to the allegations of rape, they concluded as under: “47. For the reasons detailed above, we hold that none of the allegations of rape by the STF personnel is proved, excepting the case of MW-83 Smt. Lakshmi, wife of Rajendran, Lakkampatti, whose version of her having been exploited for sex by the STF personnel appears credible, though she could not identify the persons who had ravished her.” (underlining by us) 55. Insofar as physical torture is concerned, at page 125, para 53, following finding is recorded: “53. If the evidence of MWs. Insofar as physical torture is concerned, at page 125, para 53, following finding is recorded: “53. If the evidence of MWs. 2 & 5 is considered against the backdrop of the incident at Kalmantipura on 17-2-1996 regarding which a case in Cr.No.3/1996 was registered in Hasanur Police Station and the relatives of MWs.2 & 5 were arrested, it is believable that MWs.2 & 5 were also taken into custody and detained for some time and the STF had adopted unsavory methods to extract information. Under these circumstances, we hold that they must have been subjected to some form of torture, including the outraging of their modesty, by the STF. Similarly, MW-1 Smt. Earammal must also have suffered the same indignity. (underlining by us) 56. Again, at internal page 126, para 54, it is stated as under: “54…We are unable to understand as to show she could tell that Shankar Bidri had applied electricity to her body. It is unbelievable that Shankar Bidri, 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. Shankar Bidri (PW-7) 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 PW-7 appears true and acceptable. Her evidence contains contradictions on material facts and we reject it.” (underlining by us) 57. 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: “57. For the reasons mentioned earlier in this chapter as also the previous chapter, we do not find the allegations 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 acceptable, and likewise, we hold her allegation of torture by the STF to be true. 58. In conclusion, we record that the allegations of MWs.1,2,5 and 83 of torture by the STF in their custody and proved.” (underlining by us) 58. 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: “68. 58. In conclusion, we record that the allegations of MWs.1,2,5 and 83 of torture by the STF in their custody and proved.” (underlining by us) 58. 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: “68. ….The evidence given by them individually is almost similar and stereo-typed. Their statement that there were about 100 persons in the workshop, including 40 women, is not consistent with the factual possibilities in the concerned building. The evidence of other witnesses refers to the presence about 60 persons….” 69. We are, therefore, unable to persuade ourselves to accept the allegations of these witnesses as true.” 82. The different methods of torture alleged by all these witnesses are very similar 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 till they were acquitted by the Designated Court in September 2001. 85. In many of these cases, the police have brought to record in case diaries the elaborate confessional statements said to have been made by the arrested accused. Such detailed confessions can come about only after patient and prolonged interrogation. The STF have not satisfactorily described to Panel where and how they had done all this lengthy interrogation; which, ultimately, got them the confessional statements. The circumstances in which the confessional statements had come up remain unexplained. It is relevant to note here that the Designated Court had not accepted these confessional statements as reliable. We are also of the same view as far as this inquiry is concerned. We are inclined to believe that all these witnesses, we were later arraigned as accused in TADA cases, had been held in informal custody for quite some time before their formal arrest and production in Court on a TADA/FIR for remand followed by a charge-sheet and prolonged trial. We are inclined to believe that all these witnesses, we were later arraigned as accused in TADA cases, had been held in informal custody for quite some time before their formal arrest and production in Court on a TADA/FIR for remand followed by a charge-sheet and prolonged trial. While the allegations of torture during the informal detention prior to the arrest are not substantiated by acceptable evidence, and the actual duration of informal detention is also not determinable by acceptable evidence, we are convinced that all these witnesses who were arrested in TADA cases had, in fact, suffered informal detention by the STF prior to arrest and, to this extent, they deserve to be compensated appropriately. 86. It is not in dispute that all these witnesses are relatives of the alleged associates of Veerappan, who were stated to have been killed on various dates at various places in police encounters. According to the STF, these persons were involved in the commission of various offences, like, attack on Ramapura Police Station, assassination of Harikrishna and others. Palal bast case, attack against the Convey of Gopal Hosur and other cases. It is also alleged that they were absconding from the date of offence till the date of their arrest. In this view of the matter, the Panel is not inclined 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 Tamil Nadu within the limits of police stations other than MM Hills and Ramapura Police Stations. It is admitted by the STF that whenever an accused is taken into custody by the police within the local limits of any police station they were legally required to inform such police station and get their arrest recorded in such police station, which procedure, admittedly, has not been complied with in these cases. The reasons given by the STF for not complying with this legal requirement is absolutely unconvincing. It is doubtful if these persons were actually arrested on the day and at the place as recorded by the police. 87. The Panel directed the STF to produce the log books in respect of the vehicles used by them. The log books for the years prior to 1994 were not produced on the ground that they had been destroyed. It is doubtful if these persons were actually arrested on the day and at the place as recorded by the police. 87. The Panel directed the STF to produce the log books in respect of the vehicles used by them. The log books for the years prior to 1994 were not produced on the ground that they had been destroyed. The log book for the period from 1994 to not indicate the visits of the STF personnel to the relevant places on the days on which they claim to have arrested these witnesses. In the normal course, when the accused involved in serious offences are apprehended, they would be interrogated at length by the police, and when the interrogation cannot be completed within twenty-four hours of arrest, the police will file an application before the Court for remand to police custody. Admittedly, no such prayer was made before the Designated Court seeking remand of the accused to police custody, when they were produced before the Court. It is also material to note that the STF have suggested that these witnesses were not merely the supporters of Veerappan but had also participated in heinous crimes and were responsible for the death of many police officers, and they are aware of the whereabouts of Veerappan and his gang. In these circumstances, we are unable to accept the native statement of the STF that the accused persons were produced before the Court within twenty-four hours of their arrest. In view of the gravity of the offences said to have been committed by these witnesses, it is normal to except the STF to have kept them in their custody for a considerable period to extract information adopting all methods known to them. 88. For these reasons, we are convinced to hold that these persons must have been kept in police custody for quite some time before they were formally arrested under the law and produced before the Court. 91. 88. For these reasons, we are convinced to hold that these persons must have been kept in police custody for quite some time before they were formally arrested under the law and produced before the Court. 91. …..We conclude 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, by the STF for periods extending over 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. 107. In these circumstances, we conclude that MW-136 Smt. Papa, MW-137 Gudde Madeva, MW-139 J. Puttamadaiah, MW-159 Meke Madaiyan, MW-161 Sipri Chinnapeyyan, MW-162 Ayyavu, MW-178 Keladi and MW-181 B. Madaiah had been taken into custody by the STF and harassed while in detention for a brief period for extracting information and were then formally arrested and produced before the Court. (underlining by us) 59. 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. Ellammal was unable to stand for more than twenty minutes. She alleged that she was beater indiscriminately, hung from the roof and a roller was put on her thighs and rolled by two policemen using all their strength and, hence, her limbs became weak and cannot take the strain of her own weight.” 60. At para 189, it is observed as under: “….The case of MW-105 Smt. Ellammal appears to be true as we observed from her demeonour.” 61. At Para 227, they have held as under: “227. After assessing the evidence of all the witnesses, we are of the view that MW-48 Rangappa, MW-52 Mada, MW-105 Smt. Yallammal, MW-153 Gopal andMW-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 personnel of Tamil Nadu STF.” 62. Insofar as Chapter-V-encounter deaths, is concerned, at paras 2, 3, 5, 11, 15, 16, 18, 19 & 20, it is observed as under: 2. The wife of MW-155 Rajappan had died on account of a situation caused by the atrocities of some unidentified personnel of Tamil Nadu STF.” 62. Insofar as Chapter-V-encounter deaths, is concerned, at paras 2, 3, 5, 11, 15, 16, 18, 19 & 20, it is observed as under: 2. We obtained from the STF of both States the details of encounter deaths that had had taken place in the course of their anti-Veerappan operations. The analytical 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 Tamil Nadu resulting from armed encounters of the STF with the Veerappan gang. These deaths had occurred in twelve separate incidents of encounter in Karnataka and fifteen incidents in Tamil Nadu, which were all dealt with and disposed of in separate registered cases of the concerned police stations. In regard to each of these encounter incidents the STF had duly complied with the procedure of inquiry laid down in their respective State Police Regulations. In regard to the incidents in Tamil Nadu inquiries had been duly held by the Revenue Divisional Officers concerned and the State Government had accepted their inquiry reports holding that the police firing in the encounters was justified and no further action was called for. 3. In regard to the incidents in Karnataka the Police themselves had held the inquest in each case and proceeded further with the investigation of the incident as a registered case of the local police station in which the persons killed in the encounter were included as ‘accused’ and the cases were disposed of in the normal course without any action against the police personnel involved. The representative of Karnataka Police informed the Penal that the procedural rules of Karnataka police do not envisage an inquiry in every such case by a senior functionary in administration outside the police, and the rules require only a message to be sent by the police to the District Magistrate immediately 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 desirable in the circumstances of the case. 5. 5. We got from the police in both States the post-mortem certificates they had obtained in the normal course from the local doctors who had performed the autopsy on the dead bodies of persons killed 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 detailed opinion of N.G. Prabhakar, Assistant Director, Forensic Science Laboratory, Bangalore, regarding the nature of the wounds, whether they are likely to have been caused by fire-arms of the type held by the STF, the directions in which the firing is likely to have taken place to cause is likely to have taken place to cause the ‘entry’ would and ‘exit’ would in each case as described in the post-mortem certificate, and the probable distance from which the firing is likely to have taken place. 11. From the pictorial presentation of the Ballistics Expert and the detailed description recorded in the post-mortem certificates it is clearly seen that in all the sixty-six deaths the injuries were concentrated on the front side or back side of the head and torso only. 15. It is also noticed from the description and location of the wounds in the post-mortem certificates in all the sixty-six cases that all 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 oblique direction which would normally have been the case if firing had been resorted to in a regular encounter involving rapid cross-cross movements of all the persons engaged in the thick of the encounter. 16. From the foregoing analysis of the matter with reference to the material on record and further clarified by the Ballistics Expert N.G. Prabhakar, the following 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 also been done from both sides. (ii) Firing in the other cases had mostly been done within MEDIUM range i.e., between two and 300 yards from the body. (iii) The injuries in all the cases are concentrated in the region of the chest and the abdomen. In two of these cases firing had also been done from both sides. (ii) Firing in the other cases had mostly been done within MEDIUM range i.e., between two and 300 yards from the body. (iii) The injuries in all the cases are concentrated in the region of the chest and the abdomen. (iv) In twelve connected cases [with letter No.PNHRC/412/2003 dated 11-12-2003 received from the Hon’ble Mr. Justice A.J. Sadashiva], the persons concerned had been fired at from the front as well 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 oblique random firing which one would normally expect to happen in the thick of a real encounter. (vi) In all the inquiries made by the local authorities in regard to these encounter deaths in accordance with the prescribed procedure in the two States, none of the relatives of the persons killed in the encounters had been examined to ascertain his or her version. In the statement furnished by the Tamil Nadu STF they have merely noted in each case that “the relations of the deceased avoided Revenue Divisional Officers Inquiry.” Non-examination of the close relatives of the deceased in all the sixty-six cases on encounter deaths listed by the two STFs, throws doubt on the credibility of the entire process, as perceived by the tribals and villagers affected by the police operations. This doubt gets further strengthened by the significant points noted above. 18. Similarly, a close look at the sequence of action in MM Hills Cr.No.12/93 also reveals some more disturbing features. It is on police record in this case that eight persons, namely, Amasi, Andiyappan, Mani, Perumal, 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 temple at 18/27 curve of Kollegal-MM Hills Road. 19. The statement of the STF that the persons aforementioned died in the STF firing opened in retaliation to the firing by the members of Veerappan gang is inconsistent with the sequence of events mentioned in the complaint filed by Sanjeeva and the statements of the inquest witnesses. 19. The statement of the STF that the persons aforementioned died in the STF firing opened in retaliation to the firing by the members of Veerappan gang is inconsistent with the sequence of events mentioned in the complaint filed by Sanjeeva and the statements of the inquest witnesses. It is on record that there were there vehicles in the Convoy of Gopal Hosur, one of which was in his use; Veerappan and his associates attacked the Convoy with rifles and hand bombs; all the occupants of the first vehicle died in that attack and all the occupants of the other two vehicles, including Gopal Hosur sustained bullet and other injuries; five SLR rifles and ammunition belonging to the STF were taken away by the members of Veerappan gang. In addition to these, we also observed the verbatim account of the incident in all the statements of eight inquest witnesses recorded by eight different police officers. In these suspicious circumstances, it is hard to believe the STF version of ‘Encounter death’ in MM Hills Cr.No.12/1993 that eight persons mentioned above were killed by the members of additional force who arrived at the scene of occurrence half an hour late. 20. On an overall consideration of all the facts and circumstances concerning these encounter deaths, we are 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. It seems to us that the inquiries made by the prescribed authorities in the two States immediately after the alleged encounters had perhaps not taken into account all the relevant evidence concerning the matter, particularly the version from the relatives of the deceased persons, and considered opinion of a Ballistics Expert as regards the gun-shot injuries resulting from the encounters. Having regard to all these aspect of the matter, we are of the opinion that in the interests of justice to 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 [with letter No.PNHRC/412/2003 dated 11-12-2003 received from the Hon’ble Mr. Having regard to all these aspect of the matter, we are of the opinion that in the interests of justice to 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 [with letter No.PNHRC/412/2003 dated 11-12-2003 received from the Hon’ble Mr. Justice A.J. Sadashiva], in which the victims had been fired at from both sides, the front as well as the fact, the families on the deceased victims deserve to be compensated suitably by payment of substantial monetary relief. The different encounters in which the above eighteen cases are accounted for by the police also include a few more deaths which do not bear signs of close firing or ‘both-sides’ firing. However, we consider 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. The names of the deceased victims in all the encounters connected with the eighteen connected cases [with letter No.PNHRC/412/2003 dated 11-12-2003 received from the Hon’ble Mr. Justice A.J. Sadashiva], mentioned above are furnished in Annexure-IV for easy reference and expeditious payment of compensation. (underlining by us) 63. In Chapter-VI, they have dealt with the police personnel involved in the allegations and have observed as under: “3. It can be inferred from the above statement that police officers are generally aware of the availability of such a handy instrument for generating low voltage current which would be enough to cause acute shock and plain without causing death or say serious disablement. 9. Having regard to the doubtful features of the evidence as noted earlier, we are of the considered opinion that it is well nigh 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. In the concluding part of the Report, we will be underlining the special responsibility of the commanding officers at the top level to strictly eliminate the scope for commission of excesses of any kind by their operating personnel at the ground level. In the concluding part of the Report, we will be underlining the special responsibility of the commanding officers at the top level to strictly eliminate the scope for commission of excesses of any kind by their operating personnel at the ground level. In regard to the allegations that are accepted, we recommend that action thereon may now be focused on grant of appropriate and adequate monetary relief to the victims concerned.” (underlining by us) 64. Chapter-VII contains the observations and recommendations of the Commission. At para 29, it is observed as under: “29. 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.” (underlining by us) 65. Insofar as the responsibility of Commanders of the STF is concerned, at paras 33 & 35, it is observed as under: “33. It should have been evident even at the commencement of operations by the STF that there was scope for excesses by the STF personnel unless they were held in check by effective command and control from above. When the Panel specifically questioned the Commanders of the 2 STFs. In this regard, Walter Devaram, commander of Tamil Nadu STF, could not cite any special instructions he had issued in this regard. Shankar Bidri, 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. It should 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 only after two years of his taking charge. Shankar Bidri, 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. It should 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 only after two years of his taking charge. It should also be noted 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 Shankar Bidri, Shankar Bidri has further clarified that even the 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. Shankar Bidri has clearly stated that prior on 23-8-1995 he had not issued only instruction in this regard for the regular STF personnel. 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. 35. We wish to underline the 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 detained orders to all the personnel in this regard, and strictly enforce the orders during operations. (underlining by us) 66. Chapter-VIII deals with relief to victims. At para4, 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 1. “PARTICULARS OF VICTIMS OF EXCESSES WHOSE ALLEGATIONS ARE HELD ACCEPTABLE BY THE PANE AND THE TORTURE THEY SUFFERED.] 67. 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 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. Tripathi, Chief Secretary, Government of Tamilnadu and Sri A.K. Aggarwal, 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:- “8. …..It is a matter of satisfaction that the Governments of the States of Karnataka and Tamilnadu paid heed to the advice of the Commission. The Chief Secretary of Tamilnadu and Addl. Chief Secretary of Karnataka conveyed to the Commission that both the governments are ready and willing to respect the decision/recommendations to be made by the Commission with regard to interim relief to the victims of atrocities alleged to have been committed, by joint Special Task Force. The Chief Secretary of Tamilnadu and Addl. Chief Secretary of Karnataka conveyed to the Commission that both the governments are ready and willing to respect the decision/recommendations to be made by the Commission with regard to interim relief to the victims of atrocities alleged to have been committed, by joint Special 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, Tamilnadu further informed that the Government of Tamilnadu had already disbursed a sum of Rs.20 lacs to 12 victims/next of kin of the deceased out of 38 persons recommended by Justice Sadashiva panel, Sri L.K. Tripathi, Chief Secretary, Government of Tamilnadu and Shri A.K. Aggarwal, Additional Chief Secretary, Government of Karnataka conveyed to the Commission that both the government are ready and willing to respect the decision/recommendation to be made by the Commission with regard to the interim relief to the victims of atrocities.” 68. 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:- “10. …..At 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 dependent on him. 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 dependent on him. Therefore, the Commission thinks it appropriate to recommend Rs.5 lakhs 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 Justice Sadashiva panel report.” (Underlining by us) 69. Then it look up the case of atrocities against women and this is what the NHRC has stated at para 12:- “12. Rape is a heinous crime against society. It is directed against the purity of body, mind and soul of the victim and leaves on indelible stigma in her life. She is ridiculed by her own kith and kin. Sometimes she is even ostracized. In other words rape results in the social death of the victim. Therefore, the victim of rape has also to get interim relief at par with the next of kin of those killed in suspicious encounter. The enquiry panel has found in this case that the victim was taken to different places and subjected 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.” 70. Then it also considered the torture meted out to women and it observed as under:- “14. According to the findings of Justice Sadashiva enquiry panel, three females were detained for 15 days, disrobed, assaulted and subjected to application of electric current. Disrobing of a woman may fall short of rape but it certainly brings untold ignominy and suffering to her. Therefore, these three women should receive interim relief of Rs.2 lakhs each.” 71. 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. 72. 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. 72. 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. 73. 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. 74. 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:- “7. 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:- “7. In February 1993, he was posted as Commander, Task Force, Malaimadeshwara Hills to trace and arrest the notorious sandalwood smuggler, elephant poacher and killer Veerappan and his gang members when the force was totally demoralized after repeated terrorist acts committed by the gang. In this challenging assignment, he worked hard in a systematic manner with zeal, determination, courage and gallantry in extremely difficult circumstances in hostile and difficult terrain for a period of three and half years. He led 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 explosives in 1993 was decimated to 5 members by April 1996. Under his leadership, 60 gang members were killed in various encounters and 126 gang members and harbourers were arrested at 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 explosives and 126 fir arms. Fortitude, courage, gallantry, investigation, intelligence and leadership skills, displayed by him in this operation are exemplary and unprecedented in the annals of the Indian Police. For his outstanding work, the Government of Karnataka rewarded his team with a cash reward of Rs.8 crores and a personal reward of Rs.160 Lakhs.” (Underlining by us) 75. 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 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 message 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 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 probabalise 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. 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. 76. Insofar 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. 77. 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. 78. 78. 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. 79. 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. 80. 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 Devaram, 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. When the panel specifically questioned the Commanders of the 2 STFs. Walter Devaram, 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. 81. 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. 82. 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. 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 dependent on him. Therefore, the Commission thinks it appropriate to recommend Rs.5 lakhs 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 subjected 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 woman 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. 83. 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. 84. 83. 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. 84. 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 3½ 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 empanelled, to head the State Police Force is vitiated. 85. In this context, it is necessary to recapitulate the procedure which is prescribed by the Apex Court in Prakash 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 record of a public servant. Therefor, 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: 3. In this context, the learned Advocate General brought to our notice. Section 3 of the All India Services Act, 1951 which reads as under: 3. Regulation of recruitment and conditions of services-(1) The Central Government may, after consultation with the Governments of the States concerned [including the State of Jammu and Kashmir], (and by notification in the Official Gazette) make rules for the regulation of recruitment, and the conditions of service of persons appointed to an All India Service. 86. 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 suitability for appointment at the level of Joint Secretary and above as well as equivalent posts in the Government of India; (f) “performance appraisal report”means the performance appraisal report referred to in rules 4 and 5; (g) “performance appraisal dossier”means the compilation of the performance appraisal reports written on a member of the Service, referred to in rule 3, and includes such other documents as may be specified by the Central Government, by general or special order, in this behalf; 87. Rules 4 and 5 of the said Rules read as under: 4. Form of the performance appraisal report.-(1) The reporting authority shall write the performance appraisal report in such form as may be specified by the Central Government in Schedule 2 and the officer reported upon and the reporting, reviewing and accepting authority shall ensure that the portions of the forms which are to be filled in by them are completed by them within the time limit specified in this behalf by the Central Government: Provided that the Central Government may make such additions in the form or the cutoff dates so specified as may be considered necessary or desirable. Provided further that the performance appraisal report shall also be written in such form as may be specified in this behalf by the Central Government for the members of the Service on deputation and be treated as mandatory input for empanelment and promotion and placed in the performance appraisal dossier: Provided also that the performance appraisal report shall also be written for members of Service who are on training or study leave in such form as may be specified in this behalf by the Central Government. 5. Performance appraisal reports.-(1) A performance appraisal report assessing the performance, character, conduct and qualities of every member of the Service shall be written for each financial year or as may be specified by the Government in the Schedule 2: Provided that a performance appraisal report may not be written in such cases as may be specified by the Central Government, by general of special order: Provided further that if a performance appraisal report for a financial year is not recorded by 31st December of the year in which the financial year ended, no remarks may be recorded thereafter and the officer may be assessed n the basis of the overall record and self assessment for the year, if he has submitted his self-assessment on time. (2) Subject to the provisions of sub-rule (4), a performance appraisal report shall also be written when either the reporting or reviewing authority or the member of the Service reported upon relinquishes charge of the post, and, in such a case, it shall be written at the time of the relinquishment or ordinarily within one month of such relinquishment. (3) xxx xxx (4) xxx xxx (5) xxx xxx (6) xxx xxx (7) xxx xxx “Documents to be maintained in the performance Appraisal Dossier:- (i) A Curriculum Vitae to be updated annually on the basis of the performance appraisal reports and a five-yearly Curriculum Vitae update submitted by the officer reported upon. (ii) The performance appraisal reports earned throughout the carrier. (iii) Certificates of training academic courses attended after joining service, study leave. (iv) Details of books, articles and other publications. (v) “Appreciation letters” from Government or Secretary or Head of Department or special bodies or commissions. (vi) Reports of medical check-ups. (ii) The performance appraisal reports earned throughout the carrier. (iii) Certificates of training academic courses attended after joining service, study leave. (iv) Details of books, articles and other publications. (v) “Appreciation letters” from Government or Secretary or Head of Department or special bodies or commissions. (vi) Reports of medical check-ups. (vii) Copy of order imposing any of the penalties specified in the All India Services (Discipline and Appeal) Rules, 1969 and final result of inquiry into allegations and charges against a member of the Service. (viii) Warnings or displeasure or reprimands of the Government. 88. 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 rule made by the Central Government under Section 3(1) and every regulation made thereunder or in pursuance of any such rules, shall be laid, as soon as may be, after such rule or regulation is made, before each House of Parliament while in session. Before the expiry of the session, if both Houses agree to make any modification to such rules or regulations or both Houses agree that such rules or regulations should be made, the rule or regulation shall thereafter have effect, only in such modified form or be of no effect as the case may be so, however, that any such modification or annulment shall be, without prejudice to the validity of anything previously done under that rule or the regulation. Thereby the rules or regulations made in exercise of the power under Section 3(1) of the Act regulating recruitment and the conditions of service for persons appointed to an All India Service and statutory in character.” 89. 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. 90. Then reliance was placed also on the passage from Dr. 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. 90. Then reliance was placed also on the passage from Dr. Smiths JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONH, 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 problems of statutory interpretation in the solution of which they themselves in practice exercise a wide discretion. If relevant factors are specified in the enabling act it is for the courts to determine whether they are factors to which the authority is compelled to have regard and, if so, whether they are to be construed as being exhaustive. If the relevant factors are not specified (e.g. if the power is merely to grant or refuse a licence, or to attach such conditions as the competent authority thinks fit), it is for the courts to determine whether the permissible considerations are impliedly restricted, and, if so, to what extent although when the courts conclude that a wide range of factors may properly be considered, they will be reluctant to lay down a list with which the authority will be required to comply in every case. 91. 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 public authority has been held to have acted from improper motives or upon irrelevant consideration, or to have failed to take account of relevant considerations, so that its action is ultra vires and void. It is impossible to separate these cleanly from other cases of unreasonableness and abuse of power, since the court may use a variety of interchangeable explanations, as was pointed out by Lord Greene. Regarded collectively, these cases show the great importance of strictly correct motives and purposes. They show also how fallacious it is to suppose that powers conferred in unrestricted language confer unrestricted power. Regarded collectively, these cases show the great importance of strictly correct motives and purposes. They show also how fallacious it is to suppose that powers conferred in unrestricted language confer unrestricted power. Lord Esher MR stated the ‘irrelevant considerations’ doctrine in a case where a vestry had mistakenly fixed the pension of a retiring officer on the erroneous assumption that they had no discretion as to the amount: But they must fairly consider the application and not take into account any reason for their decision which is not a legal one. If people, who have to exercise a public 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 law they have not exercised their discretion. The doctrine applies equally to failure to take account of some consideration which is necessarily relevant, such as the respective costs of rival proposals or the availability of more suitable land. Cooke J explained in a New Zealand case that ‘the more general and the more obviously important the consideration, the readier the court must be to hold the Parliament must have meant it to be taken into account’. Under many statures the discretion conferred is extensive, and it is no concern of the court to restrict it artificially by limiting the considerations that are relevant. A minister may be entitled to take account of every factor that may affect the public interest, but it does not follow that he is obliged to do so. In another New Zealand case Cooke J pointed out ‘the difference between obligatory considerations (i.e., those which the Act expressly or impliedly requires the Minister to take into account) and permissible considerations (i.e., those which can properly be taken into account but do not have to be)’. Where there is overlap between different areas of policy, for example housing and planning, the court may decline to make a rigid dichotomy between them so as to confine a housing authority to ‘housing’ considerations only. The court will intervene in two situations. The first is where the authority has acted on grounds which the statute never intended to allow, for example where fees charged for street traders’ licences were based upon what the market would bear rather than administration costs. The court will intervene in two situations. The first is where the authority has acted on grounds which the statute never intended to allow, for example where fees charged for street traders’ licences were based upon what the market would bear rather than administration costs. The second is where the authority has failed to take proper account of something that the statute expressly of impliedly required it to consider, even though it may not have been known at the time. But under this second head the implied requirement may be wide. In deciding whether to deport an immigrant the Secretary of State ‘on classic Wednesbury principles…is bound to take account of all relevant considerations’, so that an adjudicator misdirects himself in law if he refuses to take account of the immigrant’s special value to his own community. A threat by that community to instigate a strike, on the other hand, would be improper and therefore irrelevant”. 92. 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. 93. 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 Prakash 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. 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 putforth by him in his bio-data. Therefore, the observations of the Panel and the NHRC orders for this period about his style of functioning its 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 empanelled. 94. The Apex Court in the case of CENTRE FOR PIL AND ANOTHER vs UNION OF INDIA AND ANOTHER [ AIR 2011 SC 1267 ] 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. 94. The Apex Court in the case of CENTRE FOR PIL AND ANOTHER vs UNION OF INDIA AND ANOTHER [ AIR 2011 SC 1267 ] 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 empanelling authority, while forwarding the names of the empanelled 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. It will not only be useful but would also serve larger public interest and enhance public confidence if the contemporaneous service record and acts of outstanding performance of the officer under consideration, even with adverse remarks is specifically brought to the notice of the Selection Committee”. Underlining by us 95. 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 ½ 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 empanelled 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 empanelling 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 empanelling. Nothing relevant or material should be withheld from the selection committee. Therefore, it presupposes that the empanelling 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 empanelling. 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. 96. 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. 97. 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 disciplinary/criminal proceedings were pending or contemplated and there were no adverse remarks in the ACRs/APRs of the aforesaid officers. 5.3 It was also brought to the notice of the Committee that the State Govt. certified the integrity in respect of all the officers in the zone of consideration. 5.4 As intimated by the State Govt., no penalties were imposed on the eligible officers. 6.1 The Committee took into consideration the last 10 years’ ACRs of the officers upto the year 2010-11 while assessing the officers. The Committee went through the records of the eligible officers and made their assessment after deliberating on the quality of the officer as indicated in the various columns recorded by the Reporting/Reviewing officer/Accepting Authority in the ACRs for different years and then finally arrived at the classification to be assigned in respect of those years. The Committee also took into account orders regarding appreciation for the meritorious work done by the concerned officer. Only those officers who were assessed by the Committee as at least “Very Good” for each of the preceding 10 years were considered for inclusion in the panel. 6.2. The committee observed that one of the criteria for selection indicated by the Hon’ble Supreme Court was the range of experience for heading the Police force. Only those officers who were assessed by the Committee as at least “Very Good” for each of the preceding 10 years were considered for inclusion in the panel. 6.2. The committee observed that one of the criteria for selection indicated by the Hon’ble Supreme Court was the range of experience for heading the Police force. It was also observed that no guidelines had been laid down for determining the range of such experience. In view of this, the Committee deliberated on this aspect and took into account the experience of the officers in the core areas of policing like law and order maintenance, crime investigation, administration etc., alongwith experience in the fields of vigilance/intelligence/training. 98. 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 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 ½ 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. 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 ½ years. This report admittedly was not produced before the UPSC and therefore they have not considered the same, thus, it has vitiated their judgment. 99. 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. 100. 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. 101. 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. 101. From the aforesaid discussion it is clear that the functioning of the third respondent as commandant of he STF, Karnataka, for a period of 3 ½ years, is a relevant and material factor for consideration of his claim for empanelment 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 ½ 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 OF SERVICE” and “RANGE OF EXPERIENCE”. 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 OF SERVICE” and “RANGE OF 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 lawfulness/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 102. 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 Tribunal and it should be clearly understood that the assessment of the Selection Committee is not subject to appeal either before the Tribunal or by the Courts. One has to give credit to the Selection Committee for making their assessment and it is not subject to appeal. Taking the overall view of the ACRs of the candidates, one may be held to be very good and another may be held to be good. If this type of interference is permitted then it would virtually amount that the Tribunals and the High Courts started sitting as Selection Commissioner or act as an appellate authority over the selection. It is not their domain, it should be clearly understood, as has been clearly held by this Court in a number of decisions.” 103. 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 SINGH’s 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. 104. 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 empanelled 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. 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 empanelled, 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 empanelled him at all. If he had not been empanelled, 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. 105. Accordingly, we answer the points for consideration as under:- (II) There is a specific reference to the name of the third respondent in the panel 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 of his functioning as a Commandant of the Task Force. (II) The findings recorded by the panel to the effect that (a) the allegation of rape in so far as Smt. Lakshmi is proved (vide paragraph 47-internal page 120 & paragraph 57-internal page 129). (II) The findings recorded by the panel to the effect that (a) the allegation of rape in so far as Smt. Lakshmi is proved (vide paragraph 47-internal page 120 & paragraph 57-internal page 129). (b) The finding that MWs 2 and 5 must have subjected to some form of torture including the outraging of modesty by the STF and similarly MW1-Erammal have suffered indignity (para 53 internal page 125 and para 91-page 171) coupled with the fact in Annexure-IV the particulars of the victims of the torture they suffered has been clearly set out, would show that the STF commanded by the third respondent committed rape, torture, disrobing of women, giving electrical current and other excesses as set out therein. (c) The finding that the allegations of encounter deaths cannot be brushed aside as baseless. Firing seems to have been done at very close contact range and in 12 connected cases the victims had been fired at from both sides the front as well as back. 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. (para 20 page 355). (d) The finding that the excesses committed by the STF in the course of interrogation in brazen violation of human rights cannot be justified. (para 29 page 387) Therefore, the aforesaid panel report and the orders passed by the NHRC which upheld the findings in the report and recommended for payment of compensation constitutes relevant and material information an data which ought to have been placed before the UPSC by the State. (III) As the said panel report/NHRC orders are withheld from the UPSC/not placed before the UPSC, the empanelment of the third respondent by the UPSC is vitiated and consequently the order appointing the third respondent as DG and IGP of Karnataka is also vitiated. 106. 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.