K. Rajaiah Vs. State of Andhra Pradesh & Ors.
EmailAppeal: Civil Appeal No.10539 of 1983.
Petitioner: K. Rajaiah
Respondent: State of Andhra Pradesh & Ors.
Apeal: Civil Appeal No.10539 of 1983.
Judges: RANGANATH MISRA & MURARI MOHAN DUTT, JJ.
Date of Judgment: Aug 19, 1987
Head Note:
CIVIL SERVICE:
Andhra Pradesh Police Subordinate Service Rules; Rule 15(c) – Seniority – Recruitment by transfer from other service or direct recruitment – Appellant, a Reserve Sub-Inspector of Police, underwent entire procedure prescribed for selection of direct recruits for the post of Sub-Inspector of Police (Civil) – It was a case of direct recruitment – Power of govt. to transfer – Transfer can be made only in public interest – Appointment as a direct recruit cannot be substituted by an order of transfer to the prejudice of other direct recruits for computation of seniority.
Held:
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 formalities of direct recruitment along with other independent candidates and is confirmed after satisfactory completion of the probationary period, his appointment as a direct recruit cannot be substituted by an order of transfer to the prejudice of the other direct recruits in the matter of computation of seniority. 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 Tribunal, in our view, is perfectly justified in holding that the appellant was directly recruited to the post of Sub-Inspector of Police (Civil), and that his seniority should be computed from the date of such appointment.(Para 11)
JUDGEMENT:
J U D G M E N T
1. This appeal by special leave is directed against the order of the Andhra Pradesh Administrative Tribunal, Hyderabad, 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.
2. 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 1971. Pursuant to an advertisement in the local newspaper inviting applications for the posts of Sub-Inspector 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.
3. 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 representation 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 Sub-Inspector 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 Sub-Inspector of Police, that is, from Decem-ber 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, nor become a precedent for others.”
4. Being aggrieved by the said Government order, a number of Sub-Inspector 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 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.
5. The principle question that is involved in this appeal is whether the appellant was appointed to the post of Sub-Inspector of Police (Civil) as a directed 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.
6. In the impugned Government order, the Government took the view that the appellant was transferred from the post of Reserve Sub-Inspector 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 of scale shall not be treated in first appointment to the letter 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. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.”
7. 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 the modes of appointment which are –
(1) by promotion, and
(2) by direct recruitment or recruitment by transfer from any other service.
8. It is not disputed that Sub-Inspector of Police (Civil) and 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-Inspector 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 of Reserve Sub-Inspector of Police does not arise. Mr. Subba Rao, learned Council appearing on behalf of the appellant, has not made any attempt to substantiate that the appellant’s appointment to the post of Sub-Inspector of Police (Civil) was by way of recruitment by transfer, We are, therefore, left with the ques-tion 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 Reverse Sub-Inspector of Police to that of Sub-Inspector of Police (Civil). While it is strenuously urged on behalf of the appellant that he was transferred from the post of Reserve Sub-Inspector 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).
9. It has been already noticed that the appellant applied for the post of Sub-Inspector of Police (Civil) pursuant to an advertisement in the newspaper issued by the Police Department inviting applications for appointment to 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 140 in number. The appellant succeeded in the preliminary interview and he was directed to appear at the written test. Thereafter, he was also called upon to appear at the final interview 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 certifi-cate, no objection certificate in original, if he was a Govern-ment 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 appellant 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 Sub-Inspector of Police (Civil), it is difficult to accept any contention that the ap-pellant was transferred to that post. When a Government servant is 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 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 post of Sub-Inspector of Police (Civil) pursuant to the said advertisement 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.
10. 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, is 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 had 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 direction that the order would not be treated as a prece-dent for others. When impugned order was not made by the Govern-ment 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 as 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.
11. 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-Inspector 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, out merely because of the presence of these circumstances, it will not justify a finding that the appellant was transferred, as contend-ed 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 formalities of direct recruitment along with other independent candidates and is confirmed after satisfactory completion of the probationary period, his appointment as a direct recruit cannot be substituted by an order of transfer to the prejudice of the other direct recruits in the matter of computation of seniority. 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 Tribunal, in our view, is perfectly justified in holding that the appellant was directly recruited to the post of Sub-Inspector of Police (Civil), and that his seniority should be computed from the date of such appointment.
12. For the reason aforesaid, the appeal dismissed. There will, however, be no order as to costs.
13. We, however, make it clear that this judgment will not affect the present position of the appellant and the emoluments which are being paid to him.
Appeal dismissed.
1. This appeal by special leave is directed against the order of the Andhra Pradesh Administrative Tribunal, Hyderabad, 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.
2. 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 1971. Pursuant to an advertisement in the local newspaper inviting applications for the posts of Sub-Inspector 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.
3. 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 representation 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 Sub-Inspector 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 Sub-Inspector of Police, that is, from Decem-ber 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, nor become a precedent for others.”
4. Being aggrieved by the said Government order, a number of Sub-Inspector 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 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.
5. The principle question that is involved in this appeal is whether the appellant was appointed to the post of Sub-Inspector of Police (Civil) as a directed 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.
6. In the impugned Government order, the Government took the view that the appellant was transferred from the post of Reserve Sub-Inspector 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 of scale shall not be treated in first appointment to the letter 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. Where any difficulty or doubt arises in applying this sub-rule, seniority shall be determined by the appointing authority.”
7. 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 the modes of appointment which are –
(1) by promotion, and
(2) by direct recruitment or recruitment by transfer from any other service.
8. It is not disputed that Sub-Inspector of Police (Civil) and 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-Inspector 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 of Reserve Sub-Inspector of Police does not arise. Mr. Subba Rao, learned Council appearing on behalf of the appellant, has not made any attempt to substantiate that the appellant’s appointment to the post of Sub-Inspector of Police (Civil) was by way of recruitment by transfer, We are, therefore, left with the ques-tion 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 Reverse Sub-Inspector of Police to that of Sub-Inspector of Police (Civil). While it is strenuously urged on behalf of the appellant that he was transferred from the post of Reserve Sub-Inspector 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).
9. It has been already noticed that the appellant applied for the post of Sub-Inspector of Police (Civil) pursuant to an advertisement in the newspaper issued by the Police Department inviting applications for appointment to 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 140 in number. The appellant succeeded in the preliminary interview and he was directed to appear at the written test. Thereafter, he was also called upon to appear at the final interview 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 certifi-cate, no objection certificate in original, if he was a Govern-ment 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 appellant 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 Sub-Inspector of Police (Civil), it is difficult to accept any contention that the ap-pellant was transferred to that post. When a Government servant is 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 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 post of Sub-Inspector of Police (Civil) pursuant to the said advertisement 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.
10. 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, is 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 had 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 direction that the order would not be treated as a prece-dent for others. When impugned order was not made by the Govern-ment 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 as 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.
11. 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-Inspector 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, out merely because of the presence of these circumstances, it will not justify a finding that the appellant was transferred, as contend-ed 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 formalities of direct recruitment along with other independent candidates and is confirmed after satisfactory completion of the probationary period, his appointment as a direct recruit cannot be substituted by an order of transfer to the prejudice of the other direct recruits in the matter of computation of seniority. 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 Tribunal, in our view, is perfectly justified in holding that the appellant was directly recruited to the post of Sub-Inspector of Police (Civil), and that his seniority should be computed from the date of such appointment.
12. For the reason aforesaid, the appeal dismissed. There will, however, be no order as to costs.
13. We, however, make it clear that this judgment will not affect the present position of the appellant and the emoluments which are being paid to him.
Appeal dismissed.
