Page 1 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

1

REPORTABLE

Page 2 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.

2

Page 3 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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Page 4 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.”

4

Page 5 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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Page 6 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

6

Page 7 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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Page 8 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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Page 9 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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Page 10 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

10

Page 11 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

11

Page 12 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

12

Page 13 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

13

Page 14 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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Page 15 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 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

3

(1988) 2 SCC 233

15

Page 16 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

.

4

(1997) 8 SCC 372

5

(2010) 12 SCC 471

16

Page 17 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.

17