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PETITIONER: K. RAJAIAH

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH AND ORS.

DATE OF JUDGMENT19/08/1987

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH DUTT, M.M. (J)

CITATION:  1987 AIR 2005            1987 SCR  (3)1010  1987 SCC  Supl.  345     JT 1987 (3)   378  1987 SCALE  (2)409

ACT:     Andhra  Pradesh Police Subordinate  Service  Rules--Rule 15(c)Effect of--In the matter of seniority claim in  respect of appointment of a Reserve Sub-Inpsector of Police as  Sub- Inspector of Police (Civil)Whether by transfer under Rule 15 (c) or as a direct recruit.

HEADNOTE:     On  December  30, 1968, the appellant,  then  an  under- graduate, was appointed to the post of Reserve Sub-Inspector of  Police. During his service in that pest, he  passed  the B.A.  Examination in April, 1971, whereafter he applied  for the  post of Sub-Inspector of Police (Civil) pursuant to  an advertisement in the newspaper. He was selected and appoint- ed  to  the pest of Sub-Inspector on December 14,  1976,  on probation for two years along with thirty seven others,  and was confirmed in the post on November 29, 1978.     The  appellant made a representation to  the  Government that  the period of his service as Reserve Sub-Inspector  of Police should be taken into account in computing his senior- ity in the new post of Sub-Inspector of Police (Civil).  The Government  by its order dated June 11, 1982, took the  view that  the entire period of service of the appellant  as  Re- serve  Sub-Inspector of Police should be counted under  Rule 15(c)  of  the  Andhra Pradesh  Police  Subordinate  Service Rules,  and directed inter alia that the appellant would  be accorded seniority from the date of his first appointment to the  post of Reserve Sub-Inspector of Police, that is,  from December  30,  1968, and further that the  order  would  not become a precedent for others.     Aggrieved  by the above-said Government order, a  number of Sub-Inspectors of Police (Civil) moved the Andhra Pradesh Administrative  Tribunal  under paragraph 7  of  the  Andhra Pradesh Administrative Tribunal Order, 1975, challenging the validity  of the said Government Order. The Tribunal  passed an order, striking down the Government order in question and directing (i) that the appellant would be accorded seniority from  the date when he joined the post of the  SubInspector, of  Police  (Civil), treating him as a direct  recruit,  and (ii)  that the promotional benefits given to  the  appellant would be regulated on

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1011 and  from the date he joined the said post of  Sub-Inspector of  Police (Civil). The appellant appealed to this Court  by special leave against the order of the Tribunal above-said. Dismissing the appeal, the Court,     HELD:  The principal question that was involved  in  the case was whether the appellant was appointed to the post  of Sub-Inspector  of Police (Civil) as a direct recruit or  was recruited in that post by transfer or was simply transferred to  that  post  from the post of  Reserve  Sub-Inspector  of Police following his selection as a direct recruit.  [1014B- C]     The  Tribunal took the view that the appointment of  the appellant to the post of Sub-Inspector of Police (Civil) was not  by way of transfer under Rule 15(c), nor was it by  way of recruitment by transfer; it was pointed out by the Tribu- nal,  and rightly; that Annexure--I read with Rule  2(a)  of the Andhra Pradesh Police Subordinate Service Rules provided for  two modes of appointment, viz., (1) by  promotion,  and (2)  by direct recruitment or recruitment by  transfer  from any other service. [1014F-H]     The  Sub-Inspectors  of Police (Civil) and  the  Reserve SubInspectors of Police both belonged to the Andhra  Pradesh Police  Subordinate Service. Recruitment by  transfer  could only  be  made from "any other service". As  both  the  said posts were under the same service, the question of  recruit- ment  in  the  post of Sub-Inspector of  Police  (Civil)  by transfer  from the post of Reserve Sub-Inspector  of  Police did not arise. Therefore, the only question left before  the Court was whether the appellant’s appointment was by way  of direct recruitment or it was really a case of transfer  from the post of Reserve Sub-Inspector of Police to that of  Sub- Inspector of Police (Civil). [1014H, 1015A-C]     The appellant had applied for the post of  Sub-Inspector of Police (Civil) pursuant to an advertisement in the  news- papers,  issued by the Police Department, inviting  applica- tions  for appointment to the said post by  direct  recruit- ment.  The  appellant had to undergo  the  entire  procedure (like, preliminary interview, written test, final interview, production  of  certificates, etc) for selection  of  direct recruits. Also, he was appointed on probation and after  the satisfactory  completion of his probationary period, he  was confirmed in the post of Sub-Inspector of Police (Civil). In view  of the manner in which the appellant was appointed  to the  post of Sub-Inspector of Police (Civil), it was  diffi- cult 1012 to accept any contention that the appellant was  transferred to that. post. When a Government servant is transferred from one  post to another, the question of his selection after  a written  test  and a viva voce test does not arise.  If  the appellant  had  been transferred simpliciter, he  would  not have been directed to appear at the written test and  inter- view  for  selection  along with other  candidates  who  had applied  for  the post of Sub-Inspector  of  Police  (Civil) pursuant  to the advertisement in the newspaper.  The  Court was,  therefore,  unable to accept the contention  that  the appellant’s  was  a case of transfer and not of  direct  re- cruitment. It was true that the Government had the power  to transfer under Rule 15(c) of the Andhra Pradesh  Subordinate Police Service Rules, but such a transfer could be made only in public interest, and there was no question of any  public interest so far as the appellant was concerned. The  Govern- ment  had  directed  in its order that order  would  not  be treated  as  a precedent; there was no  necessity  for  this

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direction  if  the appellant’s appointment to  the  post  of Sub-Inspector  of Police (Civil) was by way of  transfer  in exercise  of  power under Rule 15(c). The  Government  order impugned had not been made by the Government out of its  own but  on  the  representation  of  the  appellant.  [1015D-H, 1016A-B]     The  appellant  contended  that he did  not  submit  any resignation from the post of Reserve Sub-Inspector of Police and  that  he was allowed to draw last pay as  Reserve  Sub- Inspector  even on his appointment as the  Sub-Inspector  of Police (Civil), but merely because of the presence of  these circumstances,  it  would  not justify a  finding  that  the appellant had been transferred, having regard to the  manner in which he came to be appointed to the post of  Sub-Inspec- tor of Police (Civil). [1016F-G]     The Tribunal was perfectly justified in holding that the appellant was directly recruited to the post of  Sub-Inspec- tor  of  Police  (Civil) and that his  seniority  should  be computed  from the date of such appointment. This  judgment, however, would not affect the present position of the appel- lant and the emoluments being paid to him. [1017B-D]

JUDGMENT:     CIVIL  APPELLATE  JURISDICTION: Civil  Appeal  No. 10539 of 1983.     From the Judgment and Order dated 22.8.1983 of the  A.P. Administrative  Tribunal  at  Hyderabad  in   Representation Petition. Nos. 965. 1899 and 1950 of 1982. A. Subba Rao for the Appellant.  1013     P.P.  Rao, K. Ram Kumar, Vimal Dave, C.  Markendeya  and Gururaja Rao for the Respondents. The following Judgment of the Court was delivered:     This  appeal  by special leave is directed  against  the order of the Andhra Pradesh Administrative Tribunal, Hydera- bad, holding that the appellant was appointed to the post of Sub-Inspector  of.Police  (Civil) as a  direct  recruit  and directing that he shall be accorded seniority from the  date when he joined the post on such appointment.     On  December  30, 1968, the appellant, who was  then  an undergraduate,  was  appointed to the post of  Reserve  Sub- Inspector  of  Police. During his service in that  post,  he passed  the  B.A. Examination of the Osmania  University  in April  197  1.  Pursuant to an advertisement  in  the  local newspaper inviting applications for the posts of  SubInspec- tor  of Police (Civil), the appellant applied for  the  post and appeared in the written test and viva voce test. He  was selected  and appointed to the post on December 14, 1976  on probation for two years along with thirtyseven others. After the completion of his probationary period, he was  confirmed in the post on November 29, 1978.     It appears that the Inspector General of Police did  not accede to the request of the appellant to take into  account the period of his service as Reserve Sub-Inspector of Police in computing his seniority in the new post of  Sub-inspector of  Police (Civil). Thereafter, the appellant made a  repre- sentation  to  the Government. The Government in  its  order being  GOMS No. 344 dated June 11, 1982, took the view  that the  entire  period of service of the appellant  as  Reserve SubInspector of Police should be counted under Rule 15(c) of the  Andhra  Pradesh Police Subordinate  Service  Rules  and directed that the appellant would be accorded seniority from the  date  of his first appointment to the post  of  Reserve

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Sub-Inspector  of Police, that is. from December  30,  1968, placing  him below Shri Khaja Mohiuddin and above Shri  S.K. Ahmed  in the list of Sub-Inspectors of Police  (Civil).  It was  further directed that "this order shall,  however.  not become, a precedent for others."     Being  aggrieved by the said Government order, a  number of  Sub-Inspectors  of Police (Civil) filed  three  sets  of applications  to the Andhra Pradesh Administrative  Tribunal under  paragraph  7  of the  Andhra  Pradesh  Administrative Tribunal  order, 1975 challenging the validity of  the  said Government order and praying for setting aside of  1014 the same. The Tribunal by the impugned order struck down the said Government order and directed that the appellant  would be accorded seniority from the date when he joined the  post of Sub-Inspector of Police (Civil) treating him as a  direct recruit.  Further,  it  was directed  that  the  promotional benefits  given to the appellant would be regulated  on  and from  the date he joined the said post of  Sub-Inspector  of Police (Civil). Hence this appeal by special leave.     The  principal question that is involved in this  appeal is  whether the appellant was appointed to the post of  Sub- Inspector  of  Police  (Civil) as a direct  recruit  or  was recruited in that post by transfer or was simply transferred to that post from the post of Reserve SubInspector of Police following his selection as a direct recruit.     In  the impugned Government order, the  Government  took the view that the appellant was transferred from the post of Reserve  SubInspector of Police to that of Sub-Inspector  of Police (Civil) under Rule 15(c) of the Andhra Pradesh Police Subordinate Service Rules. Rule 15(c) is as follows:-               "Rule 15(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 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  trans-               ferred.  Where any difficulty or doubt  arises               in applying this sub-rule, seniority shall  be               determined by the appointing authority."     The Tribunal has taken the view that appointment of  the appellant to the post of Sub-Inspector of Police (Civil) was not  by way of transfer under Rule 15(c), nor was it by  way of  recruitment by transfer. It has been pointed out by  the Tribunal,  and that rightly, that Annexure-I read with  Rule 2(a)  of  Andhra Pradesh Police  Subordinate  Service  Rules provides for two modes of appointment which are:- (1) by promotion, and   (2) by direct recruitment or recruitment by transfer  from any other service. It is not disputed that Sub-Inspectors of Police (Civil) and 1015 Reserve  Sub-Inspectors  of  Police both  belong  to  Andhra Pradesh Police Subordinate Service. Recruitment by  transfer can only be made from "any other service." As both the posts of Sub-Inspectors of Police (Civil) and Reserve  Sub-Inspec- tors  of Police are under the same Service, the question  of recruitment  in the post of Sub-Inspector of Police  (Civil) by transfer from the post or Reserve Sub-Inspector of Police does not arise. Mr. Subba Rao, learned Counsel appearing  on behalf  of the appellant, has not made any attempt  to  sub- stantiate  that the appellant’s appointment to the  post  of

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Sub-Inspector of Police (Civil) was by way of recruitment by transfer. We are, therefore, left with the question  whether the appellant’s appointment was by way of direct recruitment or  it was really a case of transfer of the  appellant  from the  post  of  Reserve Sub-Inspector of Police  to  that  of SubInspector  of  Police (Civil). While  it  is  strenuously urged  on behalf 01’ the appellant that he  was  transferred from the post of Reserve SubInspector of Police to the  post of  Sub-Inspector of Police (Civil) under Rule 15(c) of  the Andhra  Pradesh  Police  Subordinate Service  Rules,  it  is submitted  by  Mr. P.P. Rao, learned  Counsel  appearing  on behalf  of the respondents, that the appellant was  directly recruited to the post of Sub-Inspector of Police (Civil).     It  has been already noticed that the appellant  applied for the post of Sub-Inspector of Police (Civil) pursuant  to an  advertisement  in the newspapers issued  by  the  Police department inviting applications for appointment to the said post by direct recruitment in the pay scale of Rs.  150-300. The minimum academic qualification required for the post was graduation.  The vacancies to be filled up were 149 in  num- ber.  The appellant succeeded in the  preliminary  interview and he was directed to appear at the written test.  Thereaf- ter,  he was also called upon to appear at the final  inter- view before the Selection Board on February 25, 1976 and was asked  to bring with him original certificates, evidence  of his  date of birth, school/college conduct  certificate,  no objection  certificate in original, if he was  a  Government Servant,  etc. In other words, the appellant had to  undergo the  entire  procedure prescribed for  selection  of  direct recruits.  It has also been noticed earlier that the  appel- lant was appointed on probation for two years and after  the satisfactory  completion of his probationary period, he  was confirmed in the post of Sub-Inspector of Police (Civil). In view  of the manner in which the appellant was appointed  to the post of SubInspector of Police (Civil), it is  difficult to accept any contention that the appellant was  transferred to that post. When a Government servant in transferred  from one  post to another, the question of his selection after  a written and a viva voce test does not at all arise. If the 1016 appellant  had been transferred simpliciter,  the  appellant would  not have been directed to appear at the written  test and  the interview for the purpose of selection  along  with other  candidates.  who also applied for the posts  of  Sub- Inspector of Police (Civil) pursuant to the said  advertise- ment  in  the local newspaper. It is not disputed  that  the said advertisement was published for filling up the posts of Sub -Inspectors of Police (Civil) by direct recruitment.  We are,  therefore,  unable to accept the  contention  made  on behalf  of the appellant that it was a case of transfer  and not of direct recruitment. It  is true that the Government has power to transfer  under Rule 15(c) of the Andhra Pradesh Subordinate Police  Service Rules.  The  question, however, it  whether  the  Government intended to transfer the appellant from the post of  Reserve Sub-Inspector  of Police to that of Sub-Inspector of  Police (Civil). It has been rightly pointed out that such  transfer can  be made only in the public interest, but there  was  no question of any public interest so far as the appellant  was concerned. Indeed, in the impugned Government order, it  was directed that the same would not be treated as a  precedent. If the appellant’s appointment to the post of  Sub-Inspector of Police (Civil) was by way of transfer in exercise of  the power under Rule 15(c), there was no necessity for a  direc- tion that the order would not be treated as a precedent  for

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others.  The impugned order was not made by  the  Government out  of its own, but on the representation of the  appellant which  was made after the appellant’s request to  take  into account  his period of service at the Reserve  Sub-Inspector of  Police  in computing his seniority in the post  of  Sub- Inspector of Police (Civil) was turned down by the Inspector General of Police.     In  support of the case for transfer, the appellant  has strongly relied upon two facts, namely, (1) that he did  not submit any resignation from the post of Reserve  Sub-Inspec- tor of Police; and (2) that he was allowed to draw last  pay as  Reserve Sub-Inspector of Police even on his  appointment as the Sub-Inspector of Police (Civil). These two facts have also  been  relied upon by the Government  in  the  impugned order. These two circumstances are no doubt the criteria  of a  transfer,  but merely because of the  presence  of  these circumstances, it will not justify a finding that the appel- lant was transferred, as contended by him, having regard  to the manner in which the appellant was appointed to the  post of  Sub-Inspector of Police (Civil). Although  a  Government servant  can  be transferred from one post to  another,  but when  he  chooses to get himself recruited to  that  another post  after subjecting himself to all requirements and  for- malities of direct recruit-  1017 ment  along  with other independent candidates and  is  con- firmed  after  satisfactory completion of  the  probationary period,  his appointment as a direct recruit cannot be  sub- stituted  by  an order of transfer to the prejudice  of  the other  direct recruits in the matter of computation of  sen- iority.  It may be that the appellant had not resigned  from the  post of Reserve Sub-Inspector of Police, and  that  the Government  allowed him the last pay drawn as  Reserve  Sub- Inspector  of Police on his appointment as Sub-Inspector  of Police (Civil), that would not, in our opinion, wipe out the appointment of the appellant as a direct recruit. The Tribu- nal, in our view, is perfectly justified in holding that the appellant was directly recruited to the post of  Sub-Inspec- tor  of  Police (Civil), and that his  seniority  should  be computed from the date of such appointment.     For  the  reasons aforesaid, the  appeal  is  dismissed. There will, however, be no order as to costs.     We,  however, make it clear that this judgment will  not affect the present position of the appellant and the  emolu- ments which are being paid to him. S.L.                                                  Appeal dismissed. 1018