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PETITIONER: K. JAGANNADHA RAO

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH & OTHERS

DATE OF JUDGMENT23/07/1981

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. SEN, A.P. (J)

CITATION:  1981 AIR 1591            1982 SCR  (1)  69  1981 SCC  (3) 604        1981 SCALE  (3)1079

ACT:      Andhra Pradesh  Police Service Rules, 1966, Rule 3 (d)- Validity  of-Whether   Rule  3(d)   is  discriminatory   and violative of the principles of equality in Article 16 of the Constitution of India.

HEADNOTE:      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

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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  3(d) 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 v.  State of Tamil Nadu and another. [1980] 1 S.C.R. 1026, followed.      2. 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]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: 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 W.A. No. 581 of 1971.      K.K.Venugopal and A. Subba Rao for the Appellant.      P. Ram Reddy, G.S. Narayana and G.N. Rao for Respondent No. 1.      H.S. Gururaj Rao and S. Markandeya for Respondents Nos.

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2, 5, 8, 14 and 21. 71      The Judgment of the Court was delivered by      GUPTA J.  The vires  of rule 3(d) 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   3(d)   is discriminatory and  violative of  the principles of equality in Art. 16 of the Constitution of India."      Rule  5(1)   of  the   Andhra  Pradesh  Civil  Services (Classification, Control  and Appeal) Rules, 1963, framed in exercise of  the powers conferred by the proviso to Art. 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 Art. 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 Art.  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 3(d)  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  3(d)   thus  gives  a  Deputy Superintendent  of  Police  appointed  to  category  2  from category 3  the benefit of past service in the State Service

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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 3(d) 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  3(d) 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

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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

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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 v. State of Tamil Nadu and another.(1) 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

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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. S.R.                                         Appeal allowed. 77