IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY THE 19TH DAY OF MARCH TWO THOUSAND AND TEN PRESENT THE HON'BLE MR JUSTICE GODA RAGHURAM AND THE HON’BLE MR JUSTICE G.V.SEETHAPATHY WRIT PETITION NO : 28507 of 2008 Between: K.N. Rao S/o K. Laxmanudu, Aged 37 years Occ: Advocate, High Court of AP, Hyderabad . ...PETITIONER AND 1. Government of AP, rep by its Chief Secretary, Secretariat, Hyderabad. 2. Government of AP, rep by its Principal Secretary, Home Department, Secretariat, Hyderabad. 3. The Director General of Police, Government of AP, Hyderabad. 4. Sri Shiv Shankar IPS, Addl. Director General, Special Protection Force, Government of AP, Hyderabad. 5. Sri Sri Ram Tiwar, IPS, Addl. Director General of Police Organisation, Government ofAP, Hyderabad. 6. Sri Nalin Prabhat, IPS, on Deputation with the Central Government, New Delhi. 7. Government of India, rep by its Secretary, Minister of Home Affairs, North Block, New Delhi ...RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ or Order or Direction more particularly one in the nature of Writ of Mandamus, declaring the action of the respondents Nos. 1 to 3 and 7 in conferring police medal for gallantry on respondent Nos. 4 to 6 who fraudulently claimed them without actually participating in the encounter killings that took place at Koyyur forest area of Thadicherla village, Karimnagar District on 02.12.1999, as illegal, a fraud on the State and collective faith of the public in police in addition to depriving the legitimate and rightful claims of those police personnel who actually and physically participated in the said encounter and it is further consequentially prayed that this Honourable Court may be pleased to direct the respondents Nos. 1 to 3 to forthwith initiate action against the respondent Nos. 4 to 6 both penally and departmentally informing this Honourable Court the compliance of the same and pass such other order/s as deemed fit and proper in facts and circumstances of the case. Counsel for the Petitioner: MR.S.R. SANKU Counsel for the Respondent Nos 1 to 3.: GP FOR HOME Counsel for the Respondent No.7: ASSISTANT SOLICITOR GENERAL OF INDIA The Court made the following : THE HON’BLE SRI JUSTICE GODA RAGHURAM AND THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY W.P. NO. 28507 OF 2008 ORDER: (Per Sri Justice G. Raghuram) The Assistant Solicitor General of India took notice on behalf of the 7th respondent and the learned Government Pleader for Home for respondents 1 to 3. No notice was issued to the respondents 4 to 6. The writ petition has not yet been admitted and is disposed of at the stage of admission after considering the records of the case produced, pursuant to the order of this court dated 19.10.2009. This is a writ petition filed in public interest by an Advocate. Mandamus is sought: declaring the action of the respondent Nos. 1 to 3 and 7 in conferring police medal for gallantry on respondent Nos. 4 to 6 who fraudulently claimed them without actually participating in the encounter killings that took place at Koyyur forest area of Thadicherla village, Karimnagar District on 02.12.1999, as illegal, a fraud on the State and collective faith of the public in police in addition to depriving the legitimate and rightful claims of those police personnel who actually and physically participated in the said encounter and it is further consequentially prayed that this Honourable Court may be pleased to direct the respondents Nos. 1 to 3 to forthwith initiate action against the respondent Nos. 4 to 6 both penally and departmentally informing this Honourable Court the compliance of the same and pass such other order/s as deemed fit and proper in facts and circumstances of the case. The petitioner asserts: A) That the respondents 4 to 6, who were serving at the relevant time as DIG for the Special Intelligence Bureau, Superintendent of Police, Karimnagar and as Intelligence Director, respectively, deceitfully and fraudulently secured for themselves certain gallantry awards and emoluments from the Government of India by actually doing nothing, by misusing their official power and authority. B) That in an encounter in the Koyyur forest area, Karimnagar District on 02.12.1999 three Central Committee Leaders of the Peoples War Group (PWG) were killed. Respondents 4 to 6 though did not participate in the encounter, fraudulently claimed participation in the said operation and on the basis of misconceived recommendations by the State Government (Respondents 1 and 2), the Government of India (R-7) awarded each of them ‘Presidents Police Medals for Gallantry’ (for short ‘the Medals’) during 2002-03. C) The Medals are to be awarded for acts of exceptional courage displayed by members of Police forces, Central Police or Security Forces as certified by the Head of the Department concerned. Award of the medal involves several economic and other benefits. The Medals were however awarded to the respondents 4 to 6 undeservedly and contrary to the guidelines in this behalf issued by the Ministry of Home Affairs, Government of India (MHA). D) On 14.10.2008 several Telugu daily news papers and English news papers as well published reports as to serious irregularities and a scam in the award of Medals. Consequently the State Government issued show cause notices to the respondents 4 to 6 alleging that these respondents did not participate in the encounter operations and to explain why action be not taken against them. E) The conduct of the respondents 4 to 6 in falsely claiming and fraudulently receiving the Medals despite clear knowledge of their ineligibility is a fraud perpetuated on the State and Central Governments and these Governments are therefore required in law to investigate/inquire into the relevant facts and if such inquiry reveals that the Medals were awarded without lawful entitlement and on the basis of misrepresentation of relevant facts by the respondents 4 to 6, must recall/cancel the Medals and initiate departmental and other proceedings against these respondents. The State’s response: The Joint Secretary to the State Government has filed a counter affidavit, dated 07.08.2009 on behalf of the 1st respondent; the Under Secretary in the MHA has filed a counter affidavit dated 27.03.2009 and an undated additional counter affidavit, on behalf of the 7th respondent. We summarise the assertions in the counter of the 1st respondent: A) A proposal was received from the DIG of Police recommending the names of six police officers including the respondents 4 to 6 for their Gallant action in the exchange of fire took place at Koyyuru forest of Tadicherla Mandal, Karimnagar District, on 2.12.1999 in which (4) extremists died, for award of the Medals. B) The State Government forwarded the recommendations of the DGP to the 7th respondent. The 7th respondent approved the recommendations and awarded the medals. Though 37 police personnel participated in the event, the DGP had recommended medals for the six officers (including the respondents 4 to 6) while the remaining 31 were rewarded in proportion to the role played by them in the event. C) In view of press reports alleging irregularities in the award of medals to respondents 4 to 6, the MHA sought a report from the 1st respondent in September 2004. This was referred to the DGP (R- 3) who got the matter investigated through the CID and furnished a report to the State, by his letter dated 21.03.2005. In the report the Additional Director General, CID, concluded that there was prima facie evidence to prove that S/Sri A.Sivasankar, IPS, S.R. Tewari, IPS and Nalin Prabhat, IPS (Respondents 4 to 6) did not participate in the incident registered under Cr.No. 52/1999 of Tadicherla PS on the basis of which their cases have been recommended for award of Gallantry Medal. Besides, the first two awardees themselves were also the members of the Committee which recommended the above names for the Gallantry Medals. A copy of the repot was forwarded to the 7th respondent. In response, the 7th respondent by the communication dated 29.02.2008 required a specific recommendation from the 1st respondent for withdrawal or otherwise of the awards (themedals) given to the respondents 4 to 6, to enable the 7th respondent to examine the issue. D) The 1st respondent by letter dated 05.06.2008 addressed the 7th respondent to withdraw medals from respondents 4 to 6 and also initiated disciplinary action against these officers, under the All India Service (D&A) Rules 1969 (‘AIS Rules’); framed charges and directed them to furnish their statements of defense. However since three top level Central Committee Members (Naxals) were killed in a single encounter; an event widely appreciated by law enforcing agencies and in view of the statements of defense by the respondents 4 to 6, further action was dropped and it was also decided to withdraw the recommendation earlier made to the 7th respondent (i.e, for withdrawal of the Medals from respondents 4 to 6). A letter dated 11.12.2008 to this effect was addressed to the 7th respondent. E) The State Government is only a recommending authority in respect of the award of medals. It is for the 7th respondent to scrutinize the proposals submitted by the State Government, in accordance with their own guidelines and to grant awards after due enquiry. F) The Awards Committee in the DGP Office was satisfied that the role of the six police officers (including the Respondents 4 to 6) is exemplary and has resulted in causing a major set back to the extremist movement in the State. Therefore their names were recommended. No other police officer had made any complaint of having been ignored for grant of medals despite entitlement. G) As the defense statements submitted by the respondents 4 to 6 in response to the disciplinary proceedings initiated under the AIS Rules were found to be satisfactory, further action against these respondents was dropped. H) The information whether the respondents 4 to 6 participated in the incident would be available with the DGP. The delay in forwarded the names of the respondents 4 to 6 to the 7th respondent for award of the Medals was on account of security considerations, threat perceptions and strategic reasons. Merely on account of the delay in making recommendations, the petitioner cannot contend that these officers had not participated in the encounter operation. The response of the Union: The 7th respondent, in the initial counter affidavit dated 21.03.2009 pleaded: (A) That the awards (the Medals) were instituted for the first time vide President’s Secretariat Notification dated 01.03.1951. As per the terms of this notification the Medals shall only be awarded to those who have either performed acts of exceptional courage and skill or exhibited conspicuous devotion to duty as members of Police force and Central Police/Security organizations within the territory of India. (B) In accordance with the above notification the State/Chiefs of Police oganisation were advised to submit recommendations within one year of the occurrence of the relevant gallant action for which the award is proposed and in case of delay in submitting the recommendations to the MHA, reasons must be furnished for the delay. The recommendations must be duly supported by records such as FIR, SITREP, Postmortem report etc., apart from certificates of integrity and character of the recommendees. (C) The records received along with the recommendations are verified in the MHA through its specialized agency and thereafter a proposal for the award is submitted for consideration to the Central Police Awards Committee (‘CPAC’). The CPAC examines the proposals and its recommendations are then processed for approval by the Home Minister/Prime Minister and the President. The citation of each of the awardees is published in the Gazette of India. (D) The State Government initially forwarded recommendations for award of the Medals only in favour of the 6th respondent for his role in the police action dated 02.12.1999. The proposal was vetted and placed before the CPAC. The 6th respondent was awarded the Medal vide President’s Secretariat Notification dated 27.03.2002. (E) Later, the State Government forwarded recommendations for award of Medals to the respondents 4 and 5 and three other police officers, also for the incident dated 02.12.1999. In its proposal the State intimated that these recommendees were the main architects of the operation, were the targets of PWG and in view of the threat perception, the recommendations were not sent together. The recommendation by the State was considered by the CPAC. Five officers including the respondents 4 and 5 were also awarded the Medals by the notification dated 17.11.2003. (F) The petitioner’s allegation that the respondents 4 to 6 secured the Medals from the 7th respondent fraudulently and deceitfully is denied. The 7th respondent considered the proposals on the basis of the recommendations of the concerned State which is also required to verify the documents, character, antecedents etc. As per practice a fresh report regarding character, antecedents and integrity of the recommendees is also sought from the concerned DGP/State Government before awarding Medals. In the present case the State Government had not communicated anything adverse. (G)The State Government had dropped further action against the respondents 4 to 6 and had informed the answering respondent that its earlier proposal (for withdrawal of the Medals from the respondents 4 to 6),is withdrawn. (H) The petitioner is not entitled to relief as the 7th respondent has considered the issue at Minister level and has closed action for withdrawal of Medals on the basis of the recommendations of the State Government. In an undated additional counter, the 7th respondent stated: A) That the records of proposals for award of the Medals is considered by the CPAC which is chaired by the Union Home Secretary and the other members include Heads of all Central Police Organisations, Director, SVPNPA, Heads of two State police, the Special Secretary, MHA and the Joint Secretary, MHA acting as a Member-Secretary. Seniormost police officers of the country are represented on the CPAC, who by virtue of their long and varied experience have the expertise to evaluate proposals for award of the Medals. B) Initially a State CID report on the role of the respondents 4 to 6 was received by the 7th respondent from the State Government. This report recorded the opinion that respondents 4 to 6 were nowhere near the location where the encounter had taken place and the State Government had also recommended for withdrawal of the Medals from these respondents. The State initially proceeded with departmental action but subsequently intimated that on consideration of the defense statements of the three officers (in the disciplinary case initiated against them under the AIS Rules), further action was dropped and that the State withdraws the earlier recommendations to the 7th respondent (for forfeiture of Medals to respondents 4 to 6). C) Initiation of disciplinary action against an IPS Officer working in connection with the affairs of a State is within the province of the State Government, for acts of commission/omission under that Government. D) In view of the explanation by the non-official respondents, the views of the State Government and taking into account the view of security agencies, the matter was deliberated in the MHA at the level of the Home Secretary and the 7th respondent decided to accede to the State Government’s request to withdraw the earlier recommendation for forfeiture of the Medals to these officers. The how and why of the Medals : In the annexures to the counter affidavit dated 27.03.2009 on behalf of the 7th respondent, is a letter dated 09.05.2006 addressed by the MHA comprising instructions for recommendation for the award of the Presidents Police Medals for Gallantry (PPMG) and Police Medals for Gallantry. In so far as the Medals (PPMG) are concerned, the instructions clearly specify that these are awarded to those police personnel who have either performed acts of exceptional courage and skill or exhibited conspicuous devotion to duty. The conspicuous gallantry in saving life and property or in preventing crime or arresting criminals, the risk incurred being estimated with due regard to the obligations and duties of the officer concerned. These instructions categorically state that recommendation for the Medals should invariably contain the enumerated essential information/documents. The information that is obligated to be furnished by the State includes the date of the incident; brief chronological details of the incident, bringing out clearly the act of gallantry; the crucial part played by the officer so as to qualify for the award; and the role played in the gallant action by each participant/recomendee. Delayed cases if sent must be supported by valid reasons for the delay. The instructions also enjoin that a proposal involving two or more police personnel in one single action must be sent together with a single citation. In para-6 of this letter it is specifically stated: Since the awards are conferred in recognition of the acts of conspicuous gallantry or outstanding performance in service and devotion to duty, selection of awardees needs to be done with utmost care and on time. This letter of MHA (9.5.2006) encloses an annexure which is the proforma for recommendation for award of the Medals. Part-‘E’ of the requires a brief account of the gallant action to be set out in the citation. From the averments in the counters filed on behalf of the 7th respondent, the notification by the President’s Secretariat and the instructions issued by the 7th respondent qua the letter dated 09.05.06 it is clear that the award of the Medals is not a casual event, a spoil of political office nor a sinecure to be distributed as a patronage on the subjective whim or caprice of respondents 1 to 3 or the 7th respondent. The award is for established and recorded acts of exceptional courage and skill or conspicuous devotion to duty exhibited by a police officer. It should involve conspicuous gallantry in saving life or property, in preventing crime or arresting criminals, the risk incurred being estimated with due regard to the obligation and duties of the officer concerned. We have perused the records relating to the award of Medals to respondents 4 to 6, maintained by the State Government and by the Union of India (R-7). The file pertaining to the detailed report (as to the role of the respondents 4 to 6 in the event on 02.12.1999 in respect of which the respondents 4 to 6 were awarded the Medals) discloses a flow of events as broadly asserted in the counter and additional counter filed on behalf of the 7th respondent. Briefly stated, the record of the 7th respondent reveals: (a) that the State Government by its letter dated 5.6.2008 intimated the MHA that after thorough examination the State recommends withdrawal of the Medals from respondents 4 to 6. The view of the Directors of IB and CBI were solicited by the MHA. The CBI had opined that as the conclusions in the report of the enquiry conducted by the CID, AP, had prima facie established that the three officers had not participated in the event, they are not entitled for award of the Medals and that in view of the recommendations by the State Government the MHA may consider withdrawing the Medals; (b) The IB however opined that since Medals were awarded after due application of mind and evaluation of the citations proposed by the State Government after appreciating and considering all the relevant material facts, a subsequent recommendation made after “change of guard in the State Police/Administration set up” for revocation of Medals already awarded should not be encouraged, to deter any attempt to make such award the subject matter of internal politics of the Department; (c) Thereafter the file was processed towards recommending a decision to withdraw/rescind the grant of Medals. Decision in this regard was however deferred to await action by the State Government against the officers responsible for making recommendations for award of Medals to the respondents 4 to 6; (d) The 7th respondent also noticed that the 4th respondent was himself the initial recommending authority for award of the Medals for himself and for respondents 5 and 6. The record of the 7th respondent further discloses that the CID report forwarded to the 7th respondent by the State Government under a letter dated 2.08.2005, clearly established that respondents 4 to 6 were not anywhere near the location where the event had occurred (which was the basis for the award of the Medals); and (e) eventually, the State Government by its letter dated 15.01.2009 forwarded copies of the written statements of defense submitted by respondents 4 to 6 (in the disciplinary enquiry initiated against them); and by a further letter dated 11.12.2008 intimated the 7th respondent that on consideration of the defense statements of the three officers the State dropped further action against them and decided to withdraw the earlier proposal recommending withdrawal of the Medals from the three officers. Consequently the 7th respondent decided to treat the matter (regarding withdrawal of the Medals) as closed. The notifications (issued in favour of respondents 4 to 6) by the President’s Secretariat dated 27.03.2002 and 17.11.2003 clearly indicate that the Medals were awarded for gallantry and exceptional devotion to duty involved in participation by the officers concerned in person, in the operation on 02.12.1999 and not for supervision of or for orchestrating a successful operation. The State Government’s recommendation for withdrawal of the Medals and the consideration of this recommendation by the 7th respondent as well as the disciplinary action initiated by the State Government against the respondents 4 to 6 was clearly on the basis that these officers did not physically participate in the operation on 02.12.1999 and that this fact is borne out by the records. The charges framed against the three officers by the State Government in G.O. Rt. Nos. 5170, 5171 and 5172, GAD, dated 09.09.2008 reveal this initial assumption by the State. Eventually however by the orders in G.O. Rt. Nos. 6800, 6801 and 6802 GAD dated 29.11.2008 the State Government having apparently considered the matter including the written statements of defense submitted by the three officers was satisfied to drop further action against them. Consequently the State addressed the 7th respondent a letter dated 11.12.2008 withdrawing the recommendations made in the earlier letter dated 5.6.2008 (for withdrawal of the Medals) and intimated that it had dropped further action against the officers under AIS Rules. What the State Government did : We have perused the relevant record of the Government of Andhra Pradesh. The MHA addressed the State Government, on 9.9.2004 and 20.9.2004 calling for an enquiry into and forwarding of a report to it. This was pursuant to unsigned complaints purportedly by the ‘IPS Officers of AP Cadre’ and ‘Officers and Men of the AP Police’. In response, the State Government through memos dated 13.09.2004, 20.11.2004 and 29.06.2005 directed the 3rd respondent to furnish a consolidated detailed report so as to enable the State to submit a report to the MHA. By another memo dated 22.07.2005 the 3rd respondent was directed to expedite his report on the matter. In response, the 3rd respondent by letter dated 21.07.2005 addressed the 1st respondent enclosing the report of an enquiry by the CID, AP, along with voluminous enclosures to the report and informed the 1st respondent that the CID report discloses prima facie evidence as to the Medals having been awarded to respondents 4 to 6 on the basis of false recommendations. This would constitute cheating the State and Union Governments, abuse of official position to derive a pecuniary advantage constituting offences under the Prevention of Corruption Act 1988 and other related offenses including criminal conspiracy, opined the 3rd respondent and added that the complicity of each officer must be ascertained in the course of investigation as also that of the then D.G.P.(AP) who had recommended the officers for award of the Medals. The elaborate report dated 12.5.2005 (of the enquiry conducted by the Additional Superintendent of Police (N/EOW), CID, Hyderabad) sets out four circumstances to prima facie conclude that respondents 4 to 6 did not participate