Case: Palure Bhaskar Rao Etc.Etc Vs. P.Ramaseshaiah &amp; Ors. Etc

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., (2001) 10 SCC 401 , B. Thirumal v. Ananda Sivakumar & Ors., 2014(1) S.C.T. 639 : (2014) 16 SCC 593). 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if the method of promotion is seniority-cum-merit or seniority per se, there is no question of eligible senior being superseded.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 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. 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, (1988) 2 SCC 233 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, 1998(2) S.C.T. 765 : (1997) 8 SCC 372 and Shiba Shankar Mohapatra & Ors. v. State of Orissa and others, 2011(1) S.C.T. 359 : (2010) 12 SCC 471. 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]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 India11. 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 challenge13. 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 India14. 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 service16. 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 promotion17. 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 wisdom19. 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