Civil Appeal Nos
3016  3017 of 1987
From the Judgment and order dated 1721987 of the Central Administrative Tribunal Guwahati in Guwahati Case No 225 of 1986T
Kuldeep Singh Additional Solicitor General A Subba Rao and P Parameshwaran for the Appellants
Shankar Ghosh and SK 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 CC 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 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 CC 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 which is evident from the passage extracted from paragraph 16 of the judgment B We have also gone through the CCRoll 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 vs 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 vs Syed Mahmood and others  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 vs section 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 HKL Kapoor who was 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 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 CCRolls 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 CCRolls 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 CCRolls 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 54 of the Promotion Regulation
This also follows on an examination of the CCRoll 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 171079 to 31380 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 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 vs 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 CC 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
RSS Appeals allowed


Summary:
 The appellant tenant took on rent the suit premises from the respondent landlord on a monthly rent of Rs120 and executed a rent note in his favour on 19th April 1975
Clause 4 of the rent note provided that the tenant was to run the business of English Liquor Vend and do sale of liquor in the shop  The respondent filed a petition for eviction under section 13 of the Haryana Urban Control of Rent  Eviction Act 1973 against the appellant on the ground of ground of rent from 1st April 1979 to 31st August 1979 and change of user from liquor vend business to that of general merchandise
The appellant tendered the entire arrears of rent at the first date of hearing and contested the eviction petition by filing a written statement contending that after March 1979 the licence of liquor vend in his favour was not renewed and he had to discontinue that business at the suit premises and had to start the business of general merchandise
It was further contended that the purpose of user still remained commercial and that there was no clause in the rent note prohibiting the appellant to change to any other business
The Rent Controller held that the appellant had changed the user of the shop in dispute and that he was liable for eviction under the Act
346 The Appellate Authority dismissed the appeal
The High Court also dismissed the Civil Revision and upheld the order of eviction
Allowing the Appeal this Court  HELD 1
The business purposes must be adjudged in the light of the purposes of the Rent Act in question which is to control the eviction of tenants therefrom
349C 2
In the expanding concept of business nowadays and the growing concept of departmental stores it cannot be said that there was any change of user in the instant case when the tenant converted the use of the building from liquor vend business to that of general merchandise
The building was rented for the purpose of carrying on a business
It was used for another business which would not in any way impair the utility or damage to the building and the business could be conveniently carried on in the said premises
No nuisance was also created
The case would therefore not attract the mischief of section 132iib
349D 350E 3
So far as the High Court of Punjab and Haryana held in the Full Bench decision in Sikander Lal vs Amrit Lal 1984 Punjab Law Reporter 1 that allied business would not amount to change of user but for a business which is not allied for the business for which it was let out would amount to change of user come within the mischief of clause b of section 132ii of the Act the same must be read with reservation
348H 349A 4
When Parliament legislates to remedy a defect or a lacuna in the existing law and the judiciary interprets them it has to be borne in mind that the meaning of an expression must be found in the felt necessities of time
349G H 350C D Duport Steels Ltd  others vs Sirs and others at 541
referred to