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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

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the  whole  dispute  centers  round  interpretation  of  the

Andhra Pradesh Police Subordinate Service Rules and the

Andhra Pradesh Police Service Rules.

2.  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.   

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3. The category I-Sub-Inspectors of Police has later been

re-designated as Sub-Inspectors of Police (Civil).

4. 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.

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5. The  appointment  by  transfer  from  Reserve

Sub-Inspector  to  the post  of  Sub-Inspector  (Civil)  against

5% reserved quota is optional.  

6. 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.”

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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.  

7. 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

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recruitment by transfer is made on the basis of selection

based  on  merit  and  ability,  seniority  being  considered

where merit and ability are equal.

8. 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,  Category 1, of A.P. Police  Subordinate Service

Minimum  service required  for appointment  by transfer  as Inspector  of Police, Category 4

1. Sub-Inspector (Direct  Recruits)

Six  completed years

2. Sub-Inspectors  (Promotees)

Four  completed years

3. Sub-Inspectors (Recruited by transfer)

Six  completed years

4. Sub-Inspectors (Absorbed from Sub-Inspectors of  Ex-Prohibition   Department)

Four  completed years, provided he has put in not less than  Two

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continuous  years of  service  as Sub-Inspector  in the  ex-Prohibition Dept.  or  six completed  years otherwise”

9. 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

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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.

10. 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.

11. 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

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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

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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.  

12. 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

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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.

 13. 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.  

14. 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

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conveys a different concept altogether. The latter is a mode

of selection/recruitment to a service.

15.  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

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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).

 16. 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.

17. 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 1  (2001) 10 SCC 401 2  (2014) 16 SCC 593

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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.

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18. 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 others3 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

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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  others4 and

Shiba Shankar Mohapatra & Ors. v.  State of Orissa

and others5. 4  (1997) 8 SCC 372 5  (2010) 12 SCC 471

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19.  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.

20. 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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