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Saturday, April 15, 2017

“When certain length of service in a particular cadre can validly be prescribed and is so prescribed, unless a person possesses that qualification, he cannot be considered eligible for appointment. There is no law which lays down that a senior in service would automatically be eligible for promotion. Seniority by itself does not outweigh experience.” =No doubt on the date of occurrence of a vacancy in the post of Inspector of Police, in case a Reserve Sub-Inspector selected and appointed on transfer as Sub-Inspector of Police has completed 6 years as Sub-Inspector of Police (Civil), he is entitled to be considered in preference to his juniors in the seniority list of Sub-Inspectors of Police. In view of the factual and legal position explained above, we find no merit in these appeals, accordingly they are dismissed, subject to the above clarification. There shall be no order as to costs.

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION



                     CIVIL APPEAL NOS. 6795-6798 OF 2014




PALURE BHASKAR RAO ETC. ETC.      ...  APPELLANT (S)


                                   VERSUS

P. RAMASESHAIAH & ORS. ETC.               ... RESPONDENT (S)

                                    WITH

                     CIVIL APPEAL NOS. 6799-6800 OF 2014


                                    WITH

                        CIVIL APPEAL NO.6801 OF 2014


                                     AND

                     CIVIL APPEAL NOS. 6802-6803 OF 2014






                               J U D G M E N T

KURIAN, J.:




    Seniority versus eligibility, transfer versus appointment  by  transfer,
are the conflicting concepts arising for consideration  in  this  case.  The
quintessence of the  whole  dispute  centers  round  interpretation  of  the
Andhra Pradesh Police Subordinate  Service  Rules  and  the  Andhra  Pradesh
Police Service Rules.

 The Andhra Pradesh Police Subordinate Service Rules consist of  7  classes.
We are concerned with   Class  I.  Class  I  consists  of  the  following  7
categories :-
“ Categories :

1.    Sub-Inspectors of Police
2.    Sub-Inspectors of Police (Intelligence)
3.    Reserve Sub-Inspectors including the Band-
       master
4.    Assistant Sub-Inspectors
5.    Assistant Reserve Sub-Inspectors
6.    Head Constables (including Band Head
       Constables, and Reserve Head Constables, in
       Armourers, Singallers and Motor Transport
       Drivers.
7.    Constables including Band Constables
       Reserve    Constables,    Buglers     and
       Bellowboys.”

Though the qualifications for appointment and scales of pay  for  the  first
three  categories  of  Class  I  is  one  and  the  same,   they   are   not
interchangeable.

The    category    I-Sub-Inspectors    of    Police    has    later     been
   re-designated as Sub-Inspectors of Police (Civil).

Method of appointment to category I Sub-Inspector of Police  (Civil),  under
Rule 2 of the Subordinate Service Rules is done as  per  Annexure-I  to  the
Rules.
“a)   By promotion of HC’s upto 30% of cadre

b)    PCS, HCS, Police Ministerial staff of sportsmen upto 13% of cadre

c)    Direct recruitment upto 50% of cadre.

d)    Transfer of RSI’s from AR/APSP upto 5% (w.e.f. 02.04.1990 as amended
by G.O. Ms. No. 270 Home)

e)    Compassionate appointment upto 2%”


As per Annexure-II (2) (9), a Reserve Sub-Inspector shall  be  eligible  for
appointment by transfer to the category of Sub-Inspector,  after  completion
of 5 years of  service  and  also  subject  to  the  requisite   educational
qualification prescribed for Sub-Inspector (Civil). Appointment by  transfer
to the post of Sub-Inspector (Civil) is made by  way  of  selection  by  the
State Level Recruitment Board.

The appointment by transfer from Reserve Sub-Inspector to the post  of  Sub-
Inspector (Civil) against 5% reserved quota is optional.
Rule 15 of the Subordinate Service Rules  deals  with  the  seniority.  Rule
15(a) and (c) are relevant which read as follows :-
“Rule 15. Seniority : (a)  The  seniority  of  a  person  in  the  class  or
category or grade shall, unless he has been  reduced  to  lower  rank  as  a
punishment be determined by the date of his first appointment to such  class
or category or grade. If any portion of the service of such person does  not
count towards his probation under the General Rules his seniority  shall  be
determined by the date of commencement of his service which  counts  towards
probation….

          XXX             XXX           XXX

(c)    The transfer of a person from one class or category  of  the  service
to another class or category carrying the same pay or  scale  of  pay  shall
not be treated as first appointment to the latter for purposes of  seniority
and the  seniority  of  person  so  transferred  shall  be  determined  with
reference to the date of his first appointment to  class  or  category  from
which he was transferred. Where any difficulty or doubt arises  in  applying
this sub-rule, seniority shall be determined by the appointing authority.”

In view of the statutory provision as above  on  seniority  a  Reserve  Sub-
Inspector selected and appointed as Sub-Inspector (Civil) against  5%  quota
will be entitled to retain his seniority  from  the  date  of  his  original
appointment as Reserve Sub-Inspector of Police.
Inspector of Police, the next avenue open to the Sub-Inspector of Police  is
under the Andhra Pradesh Police Service and  selection  and  appointment  is
governed by Andhra Pradesh Police Service Rules, 1966. Rule 3  of  the  A.P.
Police Service Rules to the extent relevant, provides :-
“Recruitment by transfer from the Sub-Inspectors  of  Police  categories  of
Class I in the A.P. Police Subordinate Service Rules shall be  made  on  the
grounds of merit and ability, seniority being  considered  where  merit  and
ability are approximately equal”.

A few things are clear, (1) the feeder category for appointment to the  post
of Inspector of Police under the A.P.  Police  Service  Rules  is  the  Sub-
Inspector of Police (Civil) of the A.P. Police Subordinate Service. (2)  The
method of appointment  is  recruitment  by  transfer  from  the  Subordinate
Service to the State service.  (3 ) The recruitment by transfer is  made  on
the  basis  of  selection  based  on  merit  and  ability,  seniority  being
considered where merit and ability are equal.

Rule 5 of the A.P. Police  Service  Rules  provides  for  qualification  for
appointment to the post of Inspector of Police. The  relevant  Rule  5(F)(i)
reads as follows :-
“Rule 5(F) (i) No Sub-Inspector of Police (Category-I,  Class  I  of  Andhra
Pradesh Police Subordinate Service) shall be  eligible  for  appointment  as
Inspector of Police, Category 4,  by  transfer,  unless  he  has  put  in  a
minimum period of service as specified in the table hereunder -





|TABLE                                                    |
|S.No.|Sub-Inspector of Police,     |Minimum service      |
|     |Category 1, of A.P. Police   |required for         |
|     |Subordinate Service          |appointment by       |
|     |                             |transfer as Inspector|
|     |                             |of Police, Category 4|
|1.   |Sub-Inspector (Direct        |Six completed years  |
|     |Recruits)                    |                     |
|2.   |Sub-Inspectors (Promotees)   |Four completed years |
|3.   |Sub-Inspectors (Recruited by |Six completed years  |
|     |transfer)                    |                     |
|4.   |Sub-Inspectors (Absorbed from|Four completed years,|
|     |Sub-Inspectors of            |provided he has put  |
|     |Ex-Prohibition  Department)  |in not less than Two |
|     |                             |continuous years of  |
|     |                             |service as           |
|     |                             |Sub-Inspector in the |
|     |                             |ex-Prohibition Dept. |
|     |                             |or six completed     |
|     |                             |years otherwise”     |


Rule 6(a) of the A.P. Police Service Rules provides  for  ‘Probation’  which
reads  :-
“Rule 6. Probation -(a) Every person recruited by transfer or  promotion  to
a category in the service shall be on probation for a total  period  of  one
year on duty within a continuous period of two and half years.”

The simple issue to be tackled in  this  case  is  whether  a  Reserve  Sub-
Inspector of Police who is transferred  on  selection  as  Sub-Inspector  of
Police (Civil) in the A.P. Police  Subordinate  Service  when  recruited  by
transfer to A.P. Police Service and appointed as Inspector,  should  have  6
years of completed service as Sub-Inspector of Police  (Civil)  or  a  total
service of 6 years including the  service  as  Reserve  Sub-Inspector?   The
Tribunal and the High Court have held that  6  years  service  required  for
appointment as Inspector under the A.P. Police Service  should  be  as  Sub-
Inspector of Police (Civil) and  the  same  does  not  include  the  service
rendered as  Reserve  Sub-Inspector.  Thus  aggrieved,  the  appellants  are
before this Court.

Heard learned senior counsel and other counsel appearing on behalf  of  both
sides.   Though several contentions  have  been  raised,  the  crux  of  the
arguments  is  that  once  seniority  is   considered   from  the  date   of
appointment as Reserve Sub-Inspector, since the scales  of  pay  of  Reserve
Sub-Inspector and Sub-Inspector (Civil) is the same and  since  both  belong
to the same class under  the  A.P.  Police  Subordinate  Service,  the  Sub-
Inspectors selected by transfer  and  appointed  as  Sub-Inspectors  (Civil)
against 5% vacancy  and  subsequently  recruitment  by  transfer  should  be
allowed to carry the benefit of total service, lest it should  also  violate
Article 14 of the Constitution of India.

We find it  difficult  to  appreciate  the  above  submission.  A.P.  Police
Subordinate Service and A.P. Police Service are two  distinct  and  separate
services. And though the pay scales of both categories in Class  I  post  of
A.P. Police Subordinate Service is one and  the  same,  the  posts  are  not
interchangeable.  It has been the submission of  the  State  that  there  is
functional difference in the service  as  well.  Be  that  as  it  may,  the
selection to the post of Sub-Inspector (Civil)  from  Reserve  Sub-Inspector
is by way of transfer  by  selection  based  on  merit.  Only  5%  quota  is
allocated to the Reserve Sub-Inspectors.   Once  the  Reserve  Sub-Inspector
comes into the category of Sub-Inspector of Police (Civil), he  is  entitled
to carry his  seniority  from  the  date  of  appointment  as  Reserve  Sub-
Inspector and placed accordingly in the  seniority  list  of  Sub-Inspectors
(Civil). In other words as and when a Reserve Sub-Inspector is selected  and
appointed by transfer to the post of  Sub-Inspector  (Civil),  though  there
may be Sub-Inspectors of Police (Civil) already available in  that  category
working for more than 4 years but less than 5 years  yet  the  Reserve  Sub-
Inspector transferred as Sub-Inspector of  Police  (Civil)  will  be  placed
above those existing Sub-Inspectors of Police recruited from other  channels
without the benefit of ‘carry on’ seniority. But that does not mean that  on
such placement in seniority he will be  entitled  to  claim  appointment  as
Inspector of Police in the A.P. Police Service since under the  A.P.  Police
Service Rules, a Sub-Inspector of Police recruited by transfer  should  have
a minimum service of 6  completed  years  for  appointment  by  transfer  as
Inspector of Police. This rule is not under challenge.

The learned senior counsel for the  appellants  made  a  persuasive  attempt
placing reliance on minimum service in the case of  Sub-Inspectors  absorbed
from Sub-Inspectors of Ex-Prohibition Department. Under  the  said  category
the minimum service required is 4 completed years as  Sub-Inspector  (Civil)
provided such an Inspector has put in not less than 2  continuous  years  of
service as Sub-Inspector in the Ex-Prohibition Department or  has  completed
 6 years otherwise. That will not take  the  appellants  anywhere.  What  is
required in the category of  appellants  namely,  Sub-Inspectors  of  Police
(Civil) recruited by transfer for appointment as Inspectors is  6  completed
years of service  as  Sub-Inspectors  and  not  total  service  of  6  years
including the service as Reserve Sub-Inspectors.  The rule as it  stands  is
crystal clear and does not call for any other interpretation.

The rule as stands now and  having  regard   to  the  functional  duties  of
Reserve Sub-Inspector and Sub-Inspector, and in the absence of  a  challenge
set up on discrimination we find it difficult to test the arguments  on  the
tenets  of Article 14 of the Constitution of India.

Transfer and recruitment by transfer are entirely  two  different  concepts.
No doubt transfer can be from one category to  another  category  or  within
the class if the rule permits interchangeability of the categories within  a
class. Any other transfer both intra category  and  inter  category  are  in
fact, under law is a selection and appointment by way  of  a  transfer  from
one category to another or from one class  to  another  class  or  from  one
service to another.  If it is a transfer simplicitor it conveys a  different
meaning and if it is a recruitment by transfer, as we have  clarified  above
conveys  a  different  concept  altogether.  The  latter  is   a   mode   of
selection/recruitment to a service.

 Transfer in relation to service  simply  means  a  change  of  a  place  of
employment within an organization. Such transfer being to a similar post  in
the same cadre and therefore obviously such a transfer does  not  result  in
the termination of his lien in the parent cadre but recruitment by  transfer
is a different service concept altogether. It is a method of recruitment  to
a service, in the instant case to a different category in the  same  service
initially  and  thereafter  to  a  different  service  altogether.  Once  an
employee undergoes a transfer by way of a recruitment to a  different  cadre
or to a different service,  the  employee  loses  his  lien  in  the  parent
cadre/service. In that process, there is an induction to  a  new  cadre  and
sometimes with a  different  type  of  duty.  Such  induction  has  distinct
consequence on the career of the employee different  from  what  would  have
been the normal course had he continued in  the  parent  service.  Thus  the
recruitment by transfer terminates the lien of an  employee  in  the  parent
cadre/service whereas transfer simplicitor to a similar  post  in  the  same
cadre results only in change of place of employment and therefore  there  is
no termination of lien, (See :- V. Jagannadha Rao & Ors. v. State of A.P.  &
Ors.[1], B. Thirumal v. Ananda Sivakumar & Ors.[2]).

Seniority and eligibility are also distinct concepts. As  far  as  promotion
or recruitment by transfer to a higher  category  or  different  service  is
concerned if the method of promotion  is  seniority-cum-merit  or  seniority
per se, there is no question of  eligible  senior  being  superseded.  Other
things being equal, senior automatically gets promoted. But in the  case  of
selection based on merit-cum-seniority,  it  is  a  settled  principle  that
seniority has to give way to merit. Only if merit being  equal  senior  will
get the promotion.

Merely because a person is senior, if the senior is not  otherwise  eligible
for consideration as per the rules for promotion, the senior  will  have  to
give way to the eligible juniors.   The instant case is  a  classic  example
for the said principle. The Reserve Sub-Inspectors  selected  and  appointed
on transfer as Sub-Inspectors (Civil) carries seniority  from  the  date  of
appointment as Reserve Sub-Inspectors. But the eligibility  for  appointment
by way of a transfer to the post of Inspector under the A.P. Police  Service
requires 6 completed years of service after being recruited to the  category
of Sub-Inspector of Police (Civil). In other words, though the Reserve  Sub-
Inspector selected and appointed on transfer as  Sub-Inspector  (Civil)  may
be seniormost in the category of Sub-Inspector of Police, but still he  will
be ineligible for consideration of appointment as Inspector in case he  does
not have 6 years of service as Sub-Inspector  of  Police  (Civil).  All  his
juniors who have 6 years of service as Sub-Inspector of  Police  and  having
been recruited to that post from different categories are entitled to  steal
a march over him as the rule now stands.  The rule making authority  in  its
wisdom has provided such a classification and we do not  find  any  material
on record to upset the said wisdom.

The view taken by us as above is fortified by the decision of this Court  in
the case of R. Prabha Devi  and  others  v.  Government  of  India,  Through
Secretary, Ministry of Personnel and Training,  Administrative  Reforms  and
others[3] wherein it has been held that :-
“15. The rule-making authority is  competent  to  frame  rules  laying  down
eligibility  condition  for  promotion  to  a  higher  post.  When  such  an
eligibility condition has been laid down by  service  rules,  it  cannot  be
said that a direct recruit who is senior to the promotees  is  not  required
to  comply  with  the  eligibility  condition  and  he  is  entitled  to  be
considered for promotion to the higher post  merely  on  the  basis  of  his
seniority. The amended rule in question has  specified  a  period  of  eight
years’ approved service in the grade of Section Officer as  a  condition  of
eligibility for being considered for promotion to Grade I post of CSS.  This
rule is equally applicable to both the direct recruit  Section  Officers  as
well as the promotee Section Officers. The submission that a senior  Section
Officer has a right to be considered for promotion to Grade I post when  his
juniors who have fulfilled the eligibility condition  are  being  considered
for promotion to the higher post, Grade  I,  is  wholly  unsustainable.  The
prescribing of an eligibility condition for  entitlement  for  consideration
for promotion is within the competence of the  rule-making  authority.  This
eligibility condition has to be fulfilled by the Section Officers  including
senior direct recruits in order to be  eligible  for  being  considered  for
promotion. When qualifications for appointment to a  post  in  a  particular
cadre are prescribed, the same have to be satisfied before a person  can  be
considered for  appointment.  Seniority  in  a  particular  cadre  does  not
entitle a public servant for promotion to a higher post  unless  he  fulfils
the eligibility condition prescribed by the relevant rules.  A  person  must
be eligible for promotion having regard  to  the  qualifications  prescribed
for the post before he can be considered for promotion.  Seniority  will  be
relevant only amongst persons eligible. Seniority cannot be substituted  for
eligibility nor it can override it in the matter of promotion  to  the  next
higher post. The rule in question which  prescribes  an  uniform  period  of
qualified service cannot be said to be  arbitrary  or  unjust  violative  of
Article 14 or 16 of the Constitution.  It  has  been  rightly  held  by  the
Tribunal:
  “When certain length of service in  a  particular  cadre  can  validly  be
prescribed  and  is  so  prescribed,  unless   a   person   possesses   that
qualification, he cannot be considered eligible for  appointment.  There  is
no law which lays down that a  senior  in  service  would  automatically  be
eligible for promotion. Seniority by itself does not outweigh experience.”

The aforesaid view of this Court in the case of R. Prabha Devi  (supra)  has
been reiterated and followed in State of Punjab and others  v.  Inder  Singh
and others[4] and Shiba Shankar Mohapatra & Ors.  v.  State  of  Orissa  and
others[5].

 No doubt on the date of occurrence  of a vacancy in the post  of  Inspector
of Police, in  case  a  Reserve  Sub-Inspector  selected  and  appointed  on
transfer as Sub-Inspector of Police has completed 6 years  as  Sub-Inspector
of Police (Civil), he is entitled to be  considered  in  preference  to  his
juniors in the seniority list of Sub-Inspectors of Police.

In view of the factual and legal position explained above, we find no  merit
in these appeals, accordingly they  are  dismissed,  subject  to  the  above
clarification. There shall be no order as to costs.
                                                   .......................J.
                                                             (KURIAN JOSEPH)



                                                                 .……………………J.
                                                           (R. BANUMATHI)

New Delhi;
April 12, 2017.
-----------------------
[1]     (2001) 10 SCC 401
[2]     (2014) 16 SCC 593
[3]    (1988) 2 SCC 233
[4]     (1997) 8 SCC 372
[5]     (2010) 12 SCC 471


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                                                                  REPORTABLE







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