“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

———————–

REPORTABLE

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