UNION PUBLIC SERVICE COMMISSION ETC.versusHIRANYALAL DEV & ORS.

            UNION PUBLIC SERVICE COMMISSION ETC.
A
                                        v.
                       IDRANYALAL DEV & ORS.

                               MARCH 22, 1988

B                [M.P. THAKKAR AND N.D. OJHA, JJ.]

           Central Administrative Tribunals Act, 1986-Section 29-1.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 Commit-
    tee to reconsider the matter.
c
         Indian Police Service (Appointment by Promotion) Regulations,
    1955-Promotion of State Police Service Officers to JPS-Whether
    necessary to record reasons for non selection of a person.

D         'Supersession'-Concept of-Relevant in the context of 'promo-
    tion' and not in contextof'selection'.

          Aggrieved.by his non-inclusion in the Select List for promotion of
    State Police Service Officers to the l.P .S. cadre, though two of his
    junior officers had been selected, Hlranyalal, respondent in both the        ,,...
E   appeals, r.Ied a Civil Rule in the Guwahati High Court, which stood
    transferred to the Central Administrative Tribunal, Guwahati. The
    Tribunal held respondent's non selectio.n bad·iniaw on the ground that
    the Selection Committee had taken· iiito consideration certain adverse
    remarks in his Confidential Character Rolls, which had not been com-
    municated to the respondent till the date of the meeting. of the Selection
F   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
G   operative order directing the respondent to be appointed lo the Indian
    Police Service with effect from the dale on which his immediate junior
    was appointed. It is this operative order which is being mainly chal·
    Ienged in these appeals by the Union Public Service Commission and the
    State of Assam.

H         The Tribunal also held that it was obligatory on the part of the
                                       302
                                       U.P.S.C. v. H.L. DEV                       303
       y
            Selection Committee to have recorded the reasons for superseding those
                                                                                          A
            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        B
      J     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. l306B-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
                                                                                          c
       'I
            into account these adverse remarks, which in the eye of law did not exist
            and which rould not have been lawfully taken into consideration. l306C-D I

                  (3) The jurisdiction to make the selection vested in the Selection
            Committee. How to categorize in the light of the relevaot records and         D
            what norms to apply in making the assessment are exclusively the func-
            tions of the Selection Committee. The Tribunal could not make a con-
            jecture 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, GI
    ---+          (4) The Tnounal could not have substituted itself in place of           E
            Selection Committee and made the selection as if the Tribunal itself was
            exercising the powers of the Selection Committee. [307A-BI

                  (5) The Tribunal should have directed that the Selection Commit-
            tee reconsider the matter on the footing that there was no adverse
            remarks against the respondent and make a proper categorization on            F
            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            G
            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 Shrl Sardar Pradeep Kar would
            have beeu appointed ou the basis of the categorization to which each of
            them was entitled having regard to the C.C. RoUs (ignoring the adverse
            remarks against Respondent No. 1 which were subsequently quashed),            H
    304                    SUPREME COURT REPORTS             [1988] 3 S.C.R.

A   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 wlih 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 aU the benefits. [310E-G]

R         (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
    supersesslon 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        .. j,..
c the law enjoined the Selection Committee to record the reasons and
    failure to do so would vitiate the selection. It appears that the Tri-        f
    bunal 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]
D
          (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] 2SCC-UI 1973, distinguished.

E        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).
F
          Kuldeep Singh, Additional Solicitor General, A. Subba Rao and
    P. Parameshwaran for the Appellants.

          Shankar Ghosh and S.K. Nandy for the Respondents.

G         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
H Dev, a member of the Assam Police Service. Civil Appeal No. 3016-of
                           U.P.S.C. v. H.L. DEV [OJHA, J.J                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     A
      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, how-
      ever, Shri Hiranyalal Dev shall hereinafter be referred to as Respon-
      dent No. 1.
 J                                                                              B

            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 JPS
      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       c
      No. 1 were selected and included in the select list, the name of
      Respondent No. 1 was not included in the said list. Aggrieved Respon-
      dent No. 1 filed a Civil Rule in the Guwahati High Court which stood
      transferred to the Central Administrative Tribunal (for short the Tri·
      bunal) under Section 29 of the Administrative Tribunals Act, 1986.        D

             The Tribunal came to the conclusion that certain adverse
      remarks ir• the Confidential Character Rolls (C.C. Rolls) of Respon- -
      dent No. 1 had not been communicated to him till the date of meeting
·~.   and on their being communicated the Respondent No. 1 made a rep·
      resentation to the State Government which was allowed, with the re· E
      suit that even the adverse remarks subsequently expunged were taken
      into consideration by the Selection Committee. According to the Tri-
      bunal 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 on that basis.                                                 G
  '
·~.        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 com-
      mitted an error in taking into account the adverse remarks made            H
   306                   SUPREME COURT REPORTS           [19881 3 S.C.R.

A 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
B 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. l,
  and in any case could not have taken into consideration these remarks
                                                                              -
C 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 Selec-
  tion 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
D fact that the Selection Committee erred in this behalf does not neces-
  sarily mean that the Respondent No. l 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
E 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
F 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        r
  the date on which Shri Kar was appointed. The jurisdiction to make
  the selection vested in the Selection Committee. The Selection Com-
G mittee had to make the selection by applyng 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 "outst•.nd-
   ing", "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
H relevant rules. The powers to make selection were vested unto the
                                                                                     307
       r                           U.P.S.C. v. H.L. DEV IOJHA, J.[

             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 riot have substituted itself in place of the Selection
             Committee and made the selection as if the Tribunal itself wa> exercis-
             ing the powers of the Selection Committee, as has been done which is
                                                        .                    '
             evident from the passage extracted from paragraph 16 of the judg··
      J      ment:                                                                         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 cltfi-
                         nite view that there is absolutely no reason after expunc-.
      ~~1                tion of the adverse remarks to hold that the applicant
                         deserved a lower classification than these two respondents,       c
                         who were junior to him.,;

             The proper cou•se 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        D
             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
      -4.    and others, I1968] 3 SCR 363 a dispute about promotion of certain
             officers had been raised. In writ petitions filed by the aggrieved officers   E
             the High Court passed orders directing the State Government to prom-
             ote 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
      J...   the relevant dates. It was held:                                              F

                         "The promotions were irregularly made and they were,
                         therefore, entitled to ask the State Government to recon-
                         sider 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         G.
                         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      H
                                                                        ,
    308                   SUPREME COURT REPORTS           [19881 3 S.C.R.

                Government an opportunity in the first instance to consider
A               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, [198612 SCC-III 1973 and pointed out that in
B 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 Sliri 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
c the first instanee, 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
D previously Chief Secretary to the Government of Gujarat and against
  whom certain caustic observations had been made 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
E of the Selection Committee in making the selection or that of the State
   Government in making appointment by promotion. We are accord-
   ingly 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
F 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
G 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
H  paragraph   16, which it-should not have undertaken at all:
                             • U.P.S.C. v. H.L. DEV [OJHA, J.]                 309

                      "We also notice from the C.C.Rolls taken together that the      A
                      categorization done by the State Government are (a) out-
                      standing (to be awarded in very rare case), (b) above aver-
                      age, (c) average and (d) below average. Thus, the categori-
                      zation "above average" is taken as equivalent to the grad-
                      ing of "very good" as referred to in Regulation 5(4) of the
                      Promotion Regulation. This also follows on an examina-          B
                      tion 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     c
                      good .. In the report for the period 17.10.79 to 31.3.80 he
      I               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 ..... "                                         D

          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 ihat it was obligatory on the part of   E
          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 Com-
          mittee 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        F
          relevant in the context of promotion and not in the context of selec-
          tion. 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 provi-
                                                                                      G
          sion having been amended at the time when the Selection Committee
          made its selections and that so far as the amended provision is con-
          cerned, the question is concluded by the decision of this Court in Ram
          Das v. Union of India and others, [1986] Suppl. SCC 617 wherein this
          Court, while dealing with the provisions of Indian Administrative
          Service (Appointment by Promotion) Regulations, 1955 which are in
          pari materia with Indian Police Service (Appointment by Promotion)          H
    310                   SUPREME COURT REPORTS              I1988J 3 S.C.R.
    Regulations, 1955 applicable in the instant case, has taken the view
A
    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 hereun-
B   der 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
c               No. 11 Shri Sardar Pradeep Kar was appointed. Accord-
                ingly, 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
D               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       .......
E         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
F         to the C.C. Rolls (ignoring the adverse remarks against Respon-
          dent No. 1 which were subsequently quashed) and pass appro-
          priate orders in the light of the decision taken on this point. If the
          Respondent No. l'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
G         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 Select.ion Committee shall complete its exercise
          within two months from the date of this order. There will be. no·
          order regarding costs.

H   R.S.S.                                                   Appeals allowed.