Judgment

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 1987 has been preferred by the Union Public Service Commission and Shri Hiranyalal 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.

2. 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) Regulation 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.

3. 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 impugned 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.

4. 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 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.

5. 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 ta