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PETITIONER: UNION PUBLIC SERVICE COMMISSION ETC.

       Vs.

RESPONDENT: HIRANYALAL DEV & ORS.

DATE OF JUDGMENT22/03/1988

BENCH: OJHA, N.D. (J) BENCH: OJHA, N.D. (J) THAKKAR, M.P. (J)

CITATION:  1988 AIR 1069            1988 SCR  (3) 302  1988 SCC  (2) 242        JT 1988 (1)   609  1988 SCALE  (1)573

ACT:      Central Administrative  Tribunals Act, 1986-Section 29- I.P.C.-Selection by promotion-Powers vested in the Selection Committee under  the Service  Rules-Administrative  Tribunal cannot  assume  the  role  of  Selection  Committee-Tribunal should direct Selection Committee to reconsider the matter.      Indian  Police   Service  (Appointment   by  Promotion) Regulations, 1955-Promotion of State Police Service Officers to IPS-Whether necessary to record reasons for non selection of a person.      ’Supersession’-Concept of-Relevant  in the  context  of ’promotion’ and not in context of ’selection’.

HEADNOTE: %      Aggrieved by  his non-inclusion  in the Select List for promotion of  State Police  Service officers  to the  I.P.S. cadre, though  two of his junior officers had been selected, Hiranyalal, respondent  in both  the appeals,  filed a Civil Rule in  the Guwahati High Court, which stood transferred to the Central  Administrative Tribunal, Guwahati. The Tribunal held respondents non selection bad in law on the ground that the Selection Committee had taken into consideration certain adverse remarks  in his  Confidential Character Rolls, which had not been communicated to the respondent till the date of the meeting  of the Selection Committee and which were later expunged on his representation.       The  Tribunal however  went a step further, and on the basis of its own assessment of the respondent’s Confidential Rolls, assumed  that he  was entitled  to  be  characterised "very good"  and should  be deemed  to have  been  selected. After taking  this view,  the Tribunal  passed the operative order directing the respondent to be appointed to the Indian Police Service  with effect  from  the  date  on  which  his immediate junior  was appointed.  It is this operative order which is  being mainly  challenged in  these appeals  by the Union Public Service Commission and the State of Assam.      The Tribunal  also held  that it  was obligatory on the part of the 303 Selection  Committee   to  have  recorded  the  reasons  for

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superseding those who were senior.      Allowing the appeals, ^      HELD: (1)  The Selection Committee could not have taken into  consideration  the  adverse  remarks  entered  in  the records which  had not  been communicated to the respondent, and in  any case  could not  have taken  into  consideration these remarks which were subsequently set aside by the State Government. [306B-C]      (2) The  legal effect  of  the  setting  aside  of  the adverse remarks would be that the remarks must be treated as non existent in the eye of law. The Selection Committee had, therefore, fallen  in error  in taking  into  account  these adverse remarks,  which in  the eye of law did not exist and which could not have been lawfully taken into consideration. [306C-D]      (3) The  jurisdiction to  make the  selection vested in the Selection  Committee. How  to categorize in the light of the relevant  records and  what norms to apply in making the assessment are  exclusively the  functions of  the Selection Committee. The  Tribunal could  not make  a conjecture as to what the Selection Committee would have done or to resort to conjectures as  to the norms to be applied for this purpose. [306D,E,G]      (4) The  Tribunal could  not have substituted itself in place of  Selection Committee  and made  the selection as if the  Tribunal  itself  was  exercising  the  powers  of  the Selection Committee. [307A-B]      (5)  The   Tribunal  should   have  directed  that  the Selection Committee  reconsider the  matter on  the  footing that there was no adverse remarks against the respondent and make a  proper categorization on the basis of the records by ignoring the  adverse  remarks  but  by  applying  the  same standard and test adopted by it. [308E-F]      (6)  The   Selection  Committee  shall  reconsider  the impugned select  list prepared in 1983 as if it was deciding the matter  on the date of the selection on the footing that the adverse  remarks made  against the respondent which were subsequently set  aside did  not exist  in the  records  and shall consider the question as to whether he would have been appointed or Respondent No. 11 Shri Sardar Pradeep Kar would have been  appointed on  the basis  of the categorization to which each  of them  was entitled  having regard to the C.C. Rolls (ignoring the adverse remarks against Respondent No. 1 which were subsequently quashed), 304 and   if    the   respondent’s   claim   is   accepted,   on reconsideration in  the light of the aforesaid exercise, the order of appointment should provide for his appointment with effect from  the date  on which he would have been appointed if he  was selected  when the original selection was made in 1983 and he should be given all the benefits. [310E-G]      (7) The  Selection Committee was making a selection and when some  one was  selected in  preference to the other, it could not  be said  that it  amounted to  supersession of  a junior by  a senior. The concept of supersession is relevant in the  context of  promotion and  not  in  the  context  of selection. [309E-F]      (8) The  Tribunal has  committed an error in taking the view that the law enjoined the Selection Committee to record the  reasons   and  failure  to  do  so  would  vitiate  the selection. It  appears that  the Tribunal  did not  properly realise the  effect of  the relevant  provision having  been amended at  the time  when the  Selection Committee made its selections. [309F-G]

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    (1) Gurdial  Singh Fijji  v. State  of Punjab, [1979] 3 SCR 518-530;  (2) State  of Mysore v. Syed Mahmood, [1968] 3 SCR 363;  (3) Ram  Das v.  Union of India, [1986] Suppl. SCC 617 referred.  (4) State of Gujarat v. S. Tripathy, [1986] 2 SCC-III 1973, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal Nos. 3016 & 3017 of 1987.       From  the Judgment  and order  dated 17.2.1987  of the Central Administrative  Tribunal, Guwahati  in Guwahati Case No. 225 of 1986(T).      Kuldeep Singh,  Additional Solicitor  General, A. Subba Rao and P. Parameshwaran for the Appellants.      Shankar Ghosh and S.K. Nandy for the Respondents.      The Judgment of the Court was delivered by      OJHA, J.  These appeals  by  special  leave  have  been preferred against  the judgment dated 17th February, 1987 of the  Central   Administrative  Tribunal,   Guwahati   Bench, Guwahati, in  Guwahati Case No. 225 of 1986 arising out of a petition filed by Shri Hiranyalal Dev, a member of the Assam Police Service. Civil Appeal No. 3016 of 305 1987  has   been  preferred  by  the  Union  Public  Service Commission and  Shri Hiranya  Lal Dev is Respondent No. 1 in this appeal. Civil Appeal No. 3017 of 1987 on the other hand has been preferred by State of Assam and two others and Shri Hiranyalal Dev  has been arrayed as Respondent No. 7 in this appeal.  For   the  sake   of  convenience,   however,  Shri Hiranyalal  Dev   shall  hereinafter   be  referred   to  as Respondent No. 1.      Brief facts  necessary for appreciating the submissions made by  learned counsel  for the parties are that a meeting of the  Selection Committee  for preparing a select list for promotion to  the joint  IPS Cadre  of Assam,  Meghalaya  as contemplated by  the Indian  Police Service  (Appointment by Promotion Regulations 1955 was held on 27th December, 1983). Even though  two officers  junior to  Respondent No.  1 were selected and  included in  the  select  list,  the  name  of Respondent  No.  1  was  not  included  in  the  said  list. Aggrieved Respondent  No.  1  filed  a  Civil  Rule  in  the Guwahati High  Court which  stood transferred to the Central Administrative  Tribunal  (for  short  the  Tribunal)  under Section 29 of the Administrative Tribunals Act, 1986.      The  Tribunal  came  to  the  conclusion  that  certain adverse remarks  in the  Confidential Character  Rolls (C.C. Rolls) of  Respondent No. 1 had not been communicated to him till the date of meeting and on their being communicated the Respondent  No.   1  made  a  representation  to  the  State Government which  was allowed, with the result that even the adverse  remarks   subsequently  expunged  were  taken  into consideration by  the Selection  Committee. According to the Tribunal the  non selection  of Respondent No. 1 was in this view of  the matter  bad in  law. On this view, the Tribunal held that  Respondent No.  1 should  be deemed  to have been included in the impunged select list, at least, in the place in the order of his seniority and appointed to Indian Police Service on  the date  on which his immediate junior, namely, Shri Sardar  Pradeep Kar  was appointed.  After taking  this view,  the   Tribunal  went  a  step  further  and  directed Respondent No.  1 to  be  appointed  to  the  Indian  Police Service with  effect from  the date  on  which  Shri  Sardar Pradeep Kar  had been appointed and allowed all the benefits

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on that basis.      In these  appeals  against  the  order  passed  by  the Tribunal,  the  main  question  which  has  been  posed  for consideration is  as to  whether  the  Tribunal  could  have lawfully passed the operative order which it has on reaching the conclusion that the Selection Committee had committed an error in taking into account the adverse remarks made 306 against Respondent  No. 1  during a particular period, which remarks had  not been  communicated to  him till the date of selection and  which adverse  remarks were  subsequently set aside by  the State Government upon a representation made by Respondent No.  1 against  the adverse  remarks in question. The selection  in question was as seen above for appointment to the  Indian Police  Service from amongst the officials of the Assam Police Service.      It cannot  be gainsaid  that  the  Selection  Committee could not  have taken into consideration the adverse remarks entered in  the records  which had  not been communicated to the Respondent  No. 1,  and in any case could not have taken into consideration these remarks which were subsequently set aside by  the State  Government. The  legal  effect  of  the setting aside  of the  adverse remarks  would  be  that  the remarks must  be treated  as non-existent in the eye of law. The Selection  Committee had,  therefore, fallen in error in taking into  account these  adverse remarks which in the eye of law  did not exist and which could not have been lawfully taken  into   consideration.  However,  the  fact  that  the Selection  Committee   erred  in   this  behalf   does   not necessarily mean  that the Respondent No. 1 should have been categorized or  considered as  "very good"  vis-a-vis others who were  also in  the field of choice. How to categorize in the light of the relevant records and what norms to apply in making the  assessment are  exclusively the functions of the Selection  Committee.   The  Tribunal   could  not   make  a conjecture as  to what  the Selection  Committee would  have done or  to resort  to conjecture  as to  the  norms  to  be applied for  this purpose. The proper order for the Tribunal to pass  under the circumstances was to direct the Selection Committee to  reconsider the merits of Respondent No. 1 vis- a-vis the  official who was junior to him and whose name was Shri Sardar  Pradeep Kar.  Instead of doing so, the Tribunal has held that Respondent No. 1 should be deemed to have been included in  the impugned  select list  prepared in 1983, at least in  the place  in the  order of  his seniority  on the basis of  the assessment of his C.C. Rolls, and has issued a direction to  appoint Respondent  No. 1 with effect from the date on  which Shri  Kar was  appointed. The jurisdiction to make the  selection vested  in the  Selection Committee. The Selection Committee  had to  make the  selection by applying the same  yardstick and  norm as  regards the  rating to  be given to  the officials,  who were in the field of choice by categorizing the concerned officials as "outstanding", "very good" "good" etc. This function had also to be discharged by the Selection  Committee by applying the same norm and tests and the  selection was  also to  be made  by  the  Selection Committee as  per the  relevant rules.  The powers  to  make selection were vested unto the 307 Selection  Committee   under  the  relevant  rules  and  the Tribunal could  not have played the role which the Selection Committee had  to  play.  A  The  Tribunal  could  not  have substituted itself  in place  of the Selection Committee and made the  selection as if the Tribunal itself was exercising the powers  of the  Selection Committee,  as has  been  done

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which is  evident from  the passage extracted from paragraph 16 of the judgment: B           "We have  also gone  through the  C.C.Roll, of the           two junior  officers, respondents  Nos. 11  and 12           for the  same period of five years including 1982-           83. We  are of  the definite  view that  there  is           absolutely  no  reason  after  expunction  of  the           adverse  remarks   to  hold   that  the  applicant           deserved a  lower classification  than  these  two           respondents. who were junior to him." The  proper  course  to  adopt  was  the  course  which  was indicated by  this Court  in Gurdial Singh Fijji v. State of Punjab &  Ors., [1979]  3 SCR  Page 518 at Page 530, wherein this Court  directed that  the  case  of  the  appellant  be considered afresh  by the Selection Committee indicating the broad framework  within which  the Committee  should act and the preliminary steps the Government should take in order to facilitate the  Committee’s task.  In State  of  Mysore  and another v.  Syed Mahmood  and others,  [1968] 3  SCR  363  a dispute about promotion of certain officers had been raised. In writ  petitions filed  by the aggrieved officers the High Court  passed  orders  directing  the  State  Government  to promote them  from the respective dates on which respondents junior to  them were promoted. The orders passed by the High Court were  set aside  by this  Court and  a  direction  was issued to  the State Government to consider whether the said officers should have been promoted on the relevant dates. It was held:           "The promotions  were irregularly  made  and  they           were,  therefore,   entitled  to   ask  the  State           Government  to   reconsider  their  case.  In  the           circumstances, the  High Court  could issue a writ           to the  State Government  compelling it to perform           its duty  and to consider whether having regard to           their seniority  and fitness they should have been           promoted  on  the  relevant  dates  when  officers           junior to  them were  promoted. Instead of issuing           such a  writ, the  High Court wrongly issued writs           directing the  State Government  to  promote  them           with retrospective  effect. The  High Court  ought           not to  have issued  such writs without giving the           State 308           Government an opportunity in the first instance to           consider their fitness for promotion in 1959."      Learned counsel  for  the  Respondent  No.  1  in  this connection, however,  placed reliance  on a decision of this Court in  State of Gujarat v. S. Tripathy and others, [1986] 2 SCC-III  1973 and  pointed out that in that case even this Court instead  of directing  the Government  of  Gujarat  to consider afresh  the claim  of Shri Tripathy, the respondent in that  case, for  promotion to the selection grade and the super-time scale  declared that  Shri Tripathy  should  have been given  selection grade and super-time scale with effect from  the   dates  mentioned   the  rein  and  directed  the Government of  Gujarat to  give the  consequential  monetary benefits. So far as this submission is concerned, it may, at the  first   instance,  be   pointed  out   that  extend  of jurisdiction exercised  by this Court cannot be equated with the jurisdiction  of the  Central  Administrative  Tribunal. Secondly, as  is apparent  from  the  opening  part  of  the judgment the  appeals in  that case  had been  filed by  the State of  Gujarat more  to vindicate  Mr. H.K.L. Kapoor, who was previously  Chief Secretary to the Government of Gujarat and against  whom certain caustic observations had been made

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by the  High Court of Gujarat, rather than for a decision on the merits  of the  case. The  High Court had held that Shri Tripathy  was   wrongly  passed  over  and  it  is  in  this background that  the aforesaid  order  was  passed  by  this Court. This  in our opinion could not authorise the Tribunal to assume  the role of the Selection Committee in making the selection  or   that  of  the  State  Government  in  making appointment by  promotion. We are accordingly of the opinion that the  Tribunal should  have directed  that the Selection Committee should  reconsider the  matter on the footing that there were  no adverse  remarks against Respondent No. 1 and make a  proper categorization on the basis of the records by ignoring the  adverse  remarks  but  by  applying  the  same standard and  test adopted by it and make the categorization "outstanding",  "Very   Good",   "Good"   etc.   as   deemed appropriate in  the light  of the norms devised by it and to decide as to whether on doing so Respondent No. 1 would have been selected.  The Tribunal  has also  assumed that  on the basis of the rating made on the C.C.Rolls the petitioner was entitled to be categorized as "Very Good". This was a matter which had  to be  determined by  the Selection  Committee by applying the  same test as was applied in the case of others by  taking   into  consideration  the  rating  made  in  the C.C.Rolls by  applying the  same  criteria  devised  by  the Selection Committee.  The  Tribunal  has  made  recourse  to conjectures in undertaking this function as discussed in the passage extracted  from paragraph  16. which  it should  not have undertaken at all: 309           "We also  notice from the C.C.Rolls taken together           that  the   categorization  done   by  the   State           Government are  (a) outstanding  (to be awarded in           very rare  case), (b)  above average,  (c) average           and (d)  below average.  Thus, the  categorization           "above average"  is taken  as  equivalent  to  the           grading  of   "very  good"   as  referred   to  in           Regulation 5(4)  of the Promotion Regulation. This           also follows  on an examination of the C.C.Roll of           the  applicant,   which  is   produced  before  us           contains entries from the year 1973-74 onwards. In           all these  years from  1973-74 to October, 1979 he           was on  each occasion graded "above average" which           is  equivalent   to  "very   good".  The   general           description of  his performance during these years           also confirm  that he was held to be very good. In           the report  for the  period 17.10.79 to 31.3.80 he           has been graded "average" but after the expunction           of the adverse remarks, therefore, the performance           as depicted  in the report for the period is to be           graded as  "very good".  Same is the case with the           two   other   reports   containing   the   adverse           remarks....." This the Tribunal should not have done.      Turning now  to the  next point, while the Tribunal has not rested  its decision  on the  ground that  the Selection Committee had  not  given  reasons  for  not  selecting  the Respondent No.  1 the Tribunal has made a declaration of law to this  effect that  it was  obligatory on  the part of the Selection  Committee   to  have  recorded  the  reasons  for superseding those  who were  senior. In the first place, the Tribunal was in error in taking the view that it constituted supersession. The Selection Committee was making a selection and when  some one  was selected in preference to the other, it could  not be  said that it amounted to supersession of a junior by  a senior. The concept of supersession is relevant

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in the  context of  promotion and  not  in  the  context  of selection. Besides, the Tribunal has also committed an error in taking  the view  that the  law  enjoined  the  Selection Committee to  record the  reasons and failure to do so would vitiate the  selection. It appears that the Tribunal did not properly realise the effect of the relevant provision having been amended  at the  time when the Selection Committee made its selections  and that  so far as the amended provision is concerned, the question is concluded by the decision of this Court in Ram Das v. Union of India and others, 119861 Suppl. SCC  617   wherein  this   Court,  while  dealing  with  the provisions of  Indian Administrative Service (Appointment by Promotion) Regulations,  1985 which are in pari materia with Indian Police Service (Appointment by Promotion 310 Regulations, 1955  applicable in  the instant case has taken the view  that it is not necessary to record the reasons for not selecting a person who is in the arena.      In the  result these  appeals succeed  and are allowed. The order  passed by  the  Tribunal  is  set  aside  to  the aforesaid extent.  So also  the order passed by the Tribunal reflected in the passage quoted hereunder is set aside:           "Accordingly, we hold that the applicant should be           deemed to  have  been  included  in  the  impugned           select list  prepared in  1983, at  least, in  the           place in  the order of his seniority and appointed           to Indian  Police Service on the date on which his           immediate junior,  namely, respondent  No. 11 Shri           Sardar Pradeep  Kar was appointed. Accordingly, we           direct that  the applicant  be  appointed  to  the           Indian Police Service with effect from the date on           which the  respondent No.  11 Shri  Sardar Pradeep           Kar was appointed to the Indian Police Service and           allowed all the benefits on that basis."      In place  of the order quoted hereinabove we substitute an order in the following terms viz:      The Selection  Committee shall  reconsider the impugned      select list  prepared in 1983 as if it was deciding the      matter on the date of the selection on the footing that      the adverse remarks made against respondent No. 1 which      were subsequently  set  aside  did  not  exist  in  the      records and  consider the  question as  to  whether  he      would have  been appointed  or Respondent  No. 11  Shri      Sardar Pradeep  Kar would  have been  appointed on  the      basis of  the categorization  to which each of them was      entitled having  regard to the C.C. Rolls (ignoring the      adverse remarks  against Respondent  No. 1  which  were      subsequently quashed)  and pass  appropriate orders  in      the light  of the  decision taken on this point. If the      Respondent   No.    1’s   claim    is   accepted   upon      reconsideration in the light of the aforesaid exercise,      the  order   of  appointment  should  provide  for  his      appointment with effect from the date on which he would      have  been  appointed  if  he  was  selected  when  the      original selection  was made  in 1983  and he should be      given all  the benefits.  The Selection Committee shall      complete its  exercise within  two months from the date      of this order. There will be no. order regarding costs. R.S.S.                                 Appeals allowed. 311