Civil Appeal No 1223 of 1977
Appeal by special leave from the judgment and order dated the 22nd April 1976 of the Andhra Pradesh High Court in WA No 581 of 1971
KKVenugopal and A Subba Rao for the Appellant
P Ram Reddy GS Narayana and GN Rao for Respondent No 1
HS Gururaj Rao and section Markandeya for Respondents Nos 2 5 8 14 and 21
71 The Judgment of the Court was delivered by GUPTA J
The vires of rule 3d of the Andhra Pradesh Police Service Rules 1966 is in question in this appeal preferred by special leave
The rule was challenged as invalid by respondent Nos 1 to 23 by filing a writ petition in the Andhra Pradesh High Court
A single Judge of the High Court dismissed the petition his decision was reversed by a Division Bench on appeal declaring rule 3d is discriminatory and violative of the principles of equality in article 16 of the Constitution of India Rule 51 of the Andhra Pradesh Civil Services Classification Control and Appeal Rules 1963 framed in exercise of the powers conferred by the proviso to article 309 of the Constitution of India classifies the civil services of the State into a the State Services and b the Subordinate Services
The State services are the superior class
The Andhra Pradesh Police Service is one of the State services
The subordinate services include among others the Andhra Pradesh Police Subordinate Service
The Andhra Pradesh Police Service Rules 1966 described as Special Rules for Andhra Pradesh Police were also made in exercise of the powers conferred by the proviso to article 309 of the Constitution
Rule 2 of the 1966 Police Service Rules sets out the three categories of officers constituting the service namely category I composed of Commandants Andhra Pradesh Special Police category 2 which includes Deputy Superintendents of Police and Assistant Commissioners of Police other than those in category 3 and category 3 comprising Deputy Superintendents of Police in various capacities including Assistant Commandants Andhra Pradesh Special Police
Rule 3 of the Andhra Pradesh Police Service Rules 1966 lays down the method and conditions for appointment to posts in the different categories
We are concerned in this appeal with Deputy Superintendents of Police belonging to categories 2 and 3 of the rules
Appointment as Deputy Superintendent of Police in category 2 is made by a direct recruitment or b recruitment by transfer  from Andhra Pradesh Police Subordinate Service or c appointment from category 3 of this service with the concurrence of the Public Service Commission provided that the number of such appointments does not exceed two in a calendar year
Rule 3 15 of the Andhra Pradesh State and Subordinate Services Rules 1962 also framed under proviso to article 309 of the constitution defines the expression recruited by transfer from the definition it is clear that such recruitments are really by way of promotion
It is further prescribed by the 1966 72 rules that officers appointed as Deputy Superintendents of Police from Category 3 to category 2 must pass certain tests and undergo further training and probation
It is also required that they must complete 8 years of service as Deputy Superintendent of Police in category 3 and shall be below 40 years of age
The impugned rule 3d of the Andhra Pradesh Police Service Rules 1966 states The seniority of the Deputy Superintendents of Police Category 2 appointed from the posts of Deputy Superintendents of Police Category 3 shall be fixed in that category giving them credit for their entire service in the posts of the Deputy Superintendents of Police Category 3
Rules 3d thus gives a Deputy Superintendent of Police appointed to category 2 from category 3 the benefit of past service in the State Service for the purpose of seniority as against a member of the Subordinate Service appointed Deputy Superintendent of Police in category 2 by promotion or a new recruit appointed to the same post directly
The writ petition out of which this appeal arises was made by some of the Deputy Superintendents of Police in category 2 who were either recruited directly or recruited by transfer to the said posts before the 1966 Andhra Pradesh Police Service Rules came into force Respondents Nos 2 3 and 4 in the writ petition are Deputy Superintendents of Police appointed from category 3 to category 2 under the 1966 rules they were working as Assistant Commandants in category 3 before appointment to Category 2
The appellant before us was impleaded as the third respondent in the writ petition
The validity of rule 3d of the Andhra Pradesh Police Service Rules is questioned on the ground that the appointment of a Deputy Superintendent of Police from category 3 to category 2 is really by way of promotion and validly the seniority in category 2 of an officer so promoted can be reckoned only from the date of his appointment to that category
To support the contention that such an appointment is by way of promotion the following features are pointed out from the 1966 rules ii not more than two persons can be appointed Deputy Superintendents of Police from category 3 to category 2 every year ii the officers have to complete 8 years of service in category 3 before they can be appointed to category 2 iii these officers have to undergo training and probation for two years
According to the writ petitioners who are respondents Nos 1 to 23 in this Court these features conclusively prove that the appointment of a Deputy Superintendent of Police to category 2 from category 3 is by way of promotion
These are also 73 the features that weighed with the Division Bench of the High Court in holding that rule 3d was invalid
This is what the Division Bench observed Having regard to the rule of eligibility and qualifications of service of eight years in the category 3 the tests prescribed the probation of two years the training are all indicative and in our view decisive that category 3 personnel are not equivalent to category 2 personnel
We are further of the view category 3 personnel attain the same status only on appointment to category 2
 There appears to be no dispute on the following points 1 categories 2 and 3 carry equal pay 2 qualifications for direct recruits to both categories are the same 3 promotion to either category is from the post of Inspector of Police which is a subordinate service and the Inspectors of Police in the respective branches from whom promotions to the two categories are made also enjoy the same scale of pay
The duties of the Deputy Superintendents of Police of category 2 and category 3 are however of a different nature
The Deputy Superintendents of Police of Category 2 are normally concerned with the prevention detection and investigation of crime and maintenance of law and order
They constitute the principal police service of the State
Assistant Commandants Andhra Pradesh Special Police are also designated as Deputy Superintendents of Police in category 3
They are primarily a striking force employed also for maintaining law and order but they are not concerned with the routine duties of the principal police service
The promotional avenues for the officers of the two categories are also not the same
Officers belonging to category 2 of the Andhra Pradesh Police Service are eligible to be promoted as Commandants Home Guards and Assistant Superintendent of Police
They are also eligible to be considered for appointment to the Indian Police Service
Officers of category 3 are eligible to be promoted as Commandants Home Guards but not as Assistant Superintendents of Police nor are they eligible to be considered for appointment to the Indian Police Service
It appears from the counter affidavit filed on behalf of the 74 State of Andhra Pradesh in the High Court which is based on Government Order No 1513 dated November 28 1961 that the limited chances of promotion open before officers of category 3 gave rise to discontent among them and to prevent stagnation and avoid frustration among officers belonging to that category government decided to throw open avenues of promotion of the officers of category 3 which were available to the officers belonging to category 2 however the opportunity made available was a limited one in the sense that only to Deputy Superintendents of Police from category 3 were to be appointed as Deputy Superintendents of Police category 2 in a year
Rule 3 a of the Andhra Pradesh Police Service Rules 1966 provides that Deputy Superintendents of Police in category 2 may be appointed by a direct recruitment or b recruitment by transfer from Inspectors of Police class I in the Andhra Pradesh Police Subordinate Service which is really a promotion for them or c appointment from category 3 which is a State service
The validity of the rule 3 a has not been challenged
It is to be noted that rule 3 a itself treats appointment from category 3 as distinct from either direct recruitment or promotion
It was contended on behalf of the appellant that if appointment to category 2 from category 3 was not direct recruitment or promotion it could only be by way of transfer
The point was urged also in the High Court
On behalf of the appellant reference was made to fundamental rule 15 which authorises the transfer of a government servant from one post to another provided that the post to which he is transferred does not carry less pay
Rule 33 c of the Andhra Pradesh State and Subordinate Services Rules 1962 says The transfer of a person from one class or category of a service to another class or category carrying the same pay scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to the date of his first appointment to the class or category from which he was transferred
 The rule adds Where any difficultly or doubt arises in applying this Sub rule seniority shall be determined by the appointing authority 75 Of course rule 3 of the Andhra Pradesh Police Service Rules not states specifically that appointments to category 2 from category 3 shall be considered as transfer making rule 33 c of the Andhra Pradesh State and Subordinate Services Rules applicable
The answer of the respondents is that such appointments could not be treated as transfer because category 2 and category 3 are not of equal status
There is however no rule saying that services in category 3 are inferior to those in category 2 both are State Services
The learned single Judge of the High Court explains in his judgment why the fact that the Deputy Superintendents of Police in category 3 have to pass tests and undergo training and probation for appointment to category 2 does not warrant the conclusion that such appointment are by way of promotion Since the higher posts of Additional Superintendents of Police Posts in the Indian Police Service etc involve what may be called the ordinary police duties with which the members of the Andhra Pradesh Special Police are not likely to be familiar the Government has further prescribed that officers appointed from category 3 to category 2 must pass certain tests and undergo further training and probation
It is important to realise that the appointment of some outstanding officers from category 3 to category 2 is designed to achieve the two fold object of providing avenues of promotion for such outstanding officers and injecting new but proven blood as it were into category 2
If this twin object is realised it becomes evident that appointment to category 2 from category 3 cannot be considered to be a promotion
 In our view the explanation given by the single Judge is sound
We find no basis for the claim that category 3 is inferior to category 2 in status
We do not however think it necessary to decide whatever appointments to category 2 from category 3 amount to transfer attracting rule 33 c of the Andhra Pradesh State and Subordinate Services Rules
Under Rule 3 a of the Andhra Pradesh Police Service Rules 1966 appointment from category 3 is one method of recruitment to category 2 and the only question is whether giving credit to such appointees for past service in another category in the State Service is justified
We have mentioned above the points of similarity in matters of recruitment and promotion to the two respective categories
It has been noticed also that they carry the same scale of 76 pay
Whether or not some credit should be given for past service in such circumstances is a matter of policy resting with government
We do not find anything arbitrary or absurd in what rule 3 d prescribes and that being so the court cannot examine the matter and come to its own conclusion about what should be the length of past service for which credit should be given
In Tamil Nadu Education Department Ministerial and General Subordinate Service Association vs State of Tamil Nadu and another1 this Court considering a similar contention that the length of service taken into consideration for fixing seniority had worked hardship on some of the employees took the view that in such matters the court can only take an overall view and should not attempt a meticulous dissection of the matter
Once the principle is found to be rational it was observed a few instances of hardship cannot be a ground to invalidate the order or the policy this is an area where absent arbitrariness and irrationality the court has to adopt a hands off policy
There is nothing irrational in giving the Deputy Superintendents of Police appointed to category 2 from category 3 credit for past services rendered by them in category 2 from 3 which is also a State Service as category 2
The main ground on which the length of the past service for which credit has been given is questioned in this case is not that it was not rational but that category 3 being inferior in status to category 2 no credit could at all be given for past service in category 3
We found no basis to support the claim of superiority for category 2 and in the facts of the case we do not think that the length of past service for which credit has been given is improper
Accordingly we allow this appeal set aside the decision of the Division Bench and restore that of the learned single Judge dismissing the writ petition
The parties will bear their respective costs
SR Appeal allowed


Summary:
Rule 5 1 of the Andhra Pradesh Civil Services Classification Control and Appeal Rules 1963 classifies the Civil Services of the State into a State Services and b Subordinate Services
The Andhra Pradesh Police Service is one of the State services
Rule 2 of the Andhra Pradesh Police Service Rules 1966 framed under Article 309 of the Constitution sets out three categories of officers constituting the State Service namely category l composed of commandants Andhra Pradesh Special Police category II which includes Deputy Superintendents of police and Assistant Commissioners of Police other than in category III and category III comprising Deputy Superintendents of Police in various capacities including Assistant Commandants Andhra Pradesh Special Police
Rule 3 lays down the method and conditions for appointment to posts in the different categories
Appointment as Deputy Superintendent of Police in category II is made by a direct recruitment or b recruitment by transfer from Andhra Pradesh Police Subordinate Service or c appointment from category III of this service with the concurrence of the Public Service Commission provided that the number of such appointments does not exceed two in a calendar year
Under Rule 3 d the seniority of the Deputy Superintendents of Police category II appointed from the posts of Deputy Superintendents of the Police category III shall be fixed in that category giving them credit for their entire service in the post of the Deputy Superintendents of Police
 Rule 3 d thus gives a Deputy Superintendent of Police appointed to category II from category III the benefit of past service in the State Service for the purpose of seniority as against the Subordinate Service appointed Deputy Superintendent of Police in category II by promotion or a new recruit appointed to the same post directly
Some of the Deputy Superintendents of Police in category II who were either recruited directly or recruited by transfer to the said posts before the 1966 Andhra Pradesh Police Service Rules came into force challenged the validity of the vires of Rules 3 d on the ground that the appointment of a Deputy Superintendent of Police from category III to category II is really by way of promotion and validly the seniority in category II of an officer so promoted can be reckoned only from the date of his appointment to that category II
The writ petition was dismissed by learned Single Judge
In appeal the Division Bench of the High 70 Court held Rule 3 d invalid taking the view that category III personnel are not equivalent to category II personnel and that the former attains the same status only on appointment to category II
Hence this appeal by respondent No 3 in the writ petition who is a Deputy Superintendent of Police appointed from category III to category II under the 1966 rules
Allowing the appeal the Court  HELD 1
Rule 3 d of the Andhra Pradesh Police Service Rules 1966 is valid
There is nothing arbitrary or absurd in what Rule 3d prescribes as regards the credit regarding the length of the past service for which credit is to be given for the purpose of seniority
Whether or not some credit should be given for past service in such circumstances is a matter of policy resting with Government
That being so in the absence of anything arbitrary or absurd in the provision the Court cannot examine the matter and come to its own conclusion about what should be the length of past service in which credit should be given
75G 76B Tamil Nadu Education Department Ministerial and General Subordinate Service Association vs State of Tamil Nadu and another
  followed
There is no basis to support a claim of superiority for category II in the facts of the case
Rule 3 a itself which has not been challenged treats appointment from category III as distinct from either direct recruitment or promotion
There is no dispute on the following points i categories II and III carry equal pay ii qualifications for direct recruits to both categories are the same iii promotion to either category is from the post of Inspector of Police which is a Subordinate Service and the Inspectors of Police in their respective branches from whom promotions to the two categories are made also enjoy the same scale of pay
The mere fact that there are some differences regarding the duties of the Deputy Superintendents of Police of category II and category III and their promotional avenues do not alter the position
76E 74D 73C G