PALURE BHASKAR RAO ETC.ETC. Vs. P.RAMASESHAIAH & ORS. ETC.

Tags Service Law / Matter , Provident Funds

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 6795-6798 of 2014, Judgment Date: Apr 12, 2017

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 -

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.
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[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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