http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7  

CASE NO.: Appeal (civil)  5332 of 1997 Appeal (civil)  5333 of 1997

PETITIONER: Dwarka Prasad and others         Rudresh Kumar Thomar & Ors.     .                              

RESPONDENT: Vs. Union of India and  others                                       Union of India and Others  

DATE OF JUDGMENT: 28/07/2003

BENCH: Doraiswamy Raju & D. M. DHARMADHIKARI.

JUDGMENT:

J U D G M E N T

Dharmadhikari J.

        In these appeals the appellants question the correctness of and  assail the order dated 30.10.1996 of the Mumbai Bench of the  Central Administrative Tribunal.  The appellants were appointed as  Preventive Officers (Grade I) in Central Services Group ’C’ (non- gazetted).  The question before the tribunal was on the validity of  20% quota fixed for them for promotion to the post of Appraiser.  According to them a much lower quota fixed for them as compared to  75% quota fixed in favour of the Examining Officers is arbitrary and  discriminatory.   

       The two categories of officers’ namely Preventive Officers and  Examining Officers shall for convenience be shortly referred to  hereinafter as POs and EOs respectively.

       The  Mumbai Bench of the tribunal rejected the challenge of  POs both on merits as also on the ground of res judicata by relying  on a two-member judgment of Madras bench of the same tribunal in  which similar challenge was negatived on a petition filed by All India  Customs Preventive Services Federation representing the POs as a  class.  

       It may be mentioned that the above-mentioned 75% quota for  EOs and 20% quota for POs to the promotion post of Appraiser has  been fixed by statutory rules framed under Article 309 of the  Constitution of India viz., Department of Revenue (Custom Appraisers  Recruitment) Rules 1988.         The appellants assail validity of the Rules and schedule  appended to it whereunder 75% and 20% quota has been fixed  respectively for EOs and POs.

       The principal contention advanced is that fixation of 20% quota  for promotion of POs is not proportionate to their cadre strength.  Fixation of such small quota of 20% for POs as compared to 75% for  EOs is described as arbitrary and discriminatory hence violative of  Articles 14 & 16 of the Constitution of India.

       Learned Senior Counsel Shri PP Rao and Shri AK Ganguli  appearing for POs in these appeals submit that approved principle is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7  

that fixation of quota for promotion between various feeder  categories or posts should be proportionate to the respective cadre  strength.  Reliance is placed on a decision of this Court in All India  Federation of Central Excise vs. UOI [1997 (1) SCC 520].

       To elucidate and highlight their grievance of discriminatory  treatment to POs as a class, the counsel have handed over to us a  chart to explain at a glance the alleged shocking disparities in  chances  of promotion between POs and EOs.

                       Asst. Commissioner, Customs (Group ’A)

DR                                                               (Promotion)  

Superintendents          Appraiser (Group’B’)                   Superintendents of  Customs (250)           (520)                              Central Excise (Group’B’)                                                           (Group ’B’)

100% promotion          DRs 50%(260)         Promotion 50%  of POs Preventive                                     (260) Officers (Group ’C’)  (1708)                                 

           75% = 195                   20% = 52                5% = 13           (Examiners) (350)             Preventive Officers                Office         (Group ’C’) (Group ’C’)         (1708)                             Supdts*                                                                         (Group ’C’)

75%                 25%          75%              25%                      100% DR                promotion      DR              promotion              promotion                             of UDCs &                        of UDCs                     of UDCs                       Stenos                              & Stenos               & Stenos                                                                                         (Gro up ’C’)

?       In addition OSs have a channel of promotion as Asst. Administrative Officers,  Administrative Officers and Chief Administrative Officers.

       On behalf of petitioners from the above chart, it is explained  that by working out 75% quota of the then total sanctioned strength  of 253 posts of promotion, the then 469 available EO’s got chance of  being considered for promotion.   As against that it is pointed out that  by working out 20% quota, for available 2607 posts of POs  only 337  Posts were available for consideration for promotion of POs.  The  chances of promotion provided for POs with much larger strength are  thus too low as compared to EOs with much lesser strength.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7  

       According to the POs this glaring disparity exists in the chances  of promotion for POs.  In normal course they would be taking fifteen  years for promotion to Grade ’D’ cadre as compared to EOs who  might take only five years for promotion to that grade.  It is  submitted that this situation is creating a huge imbalance as  employees working in clerical cadre under POs who might earn  promotion as EOs would get promotion as Appraisers to become  seniors to many POs under whom they had worked.

       Learned Senior Counsel Shri PP Malhotra, appearing for the  union of India representing the concerned Department and Shri  Nageshwar Rao who appears for the contesting EOs have opposed  the appeal and tried to meet the various contentions advanced.  On  behalf of the Union of India as employer, it is submitted that although  POs and EOs have been recruited through common competitive  examination, the functions and nature of their work are distinct.  The  stand of the Union of India is that, as has been shown in the chart,   POs have two channels of promotion; one to the post of  Superintendent (Customs) Grade ’B’ and the other for the post of  Appraiser Group ’B’. A conscious decision has been taken to provide  only 20% quota to POs for the post of Appraiser which is ex-cadre  post for them because they have 100% quota for the post of  Superintendent (Customs) Group ’B’ in their own channel. It is not  disputed that the EOs are mainly involved in assisting the Appraiser  in assessment of duties.  The POs work in the field and are engaged  mainly in the duties of checking of smuggling and evasion of duties.   Second Pay Commission does take cognizance of the fact that in  certain custom offices in big cities like Kolkata, Mumbai and Goa,  sometimes duties of  EOs and POs overlap.  The pay Commission,  therefore, has recommended a common scale of pay for them.

       On behalf of the Union of India reference is made to the  previous Rules of 1961 whereunder promotions to the higher post of  Custom Appraiser were based on length of service between POs and  EOs with age restriction on the former.  According to the Union of  India, in 1961 Rules, there were no quotas separately fixed in the  ratio of 75%, 20% and 5% for EOs, POs and Office Superintendents  (OS) respectively.  It was experienced that under the earlier  recruitment rules, EOs were taking a sizeable quota and hence their  quota was reduced from 72% to 54% and promotional prospects of  POs and OS were increased from 12% to 15% and from 5% to 10%  respectively.  In other words, the promotion prospects of POs and  OSs were increased by 1988 Rules.  Had the post of Appraiser been  filled exclusively from the group of Examiners who have no other  channel of promotion the promotional prospects of POs would have  been poorer.  It is submitted that POs have 100% chances of  promotion in their own channel to the post of Superintendent  (Customs) (Group ’B’) and in the other channel for the ex-cadre post  of Appraiser if their quota is further increased above 20% they would  a make inroad into the chances of EOs.  This is the reason given by  respondents for restricting quota of POs to 20% for ex-cadre post for  them of Appraiser.

       In the course of hearing of these appeals it was brought to the  notice of this court that there has been large-scale up-gradation of  POs to the post of Superintendent of Customs (Preventive) in the  years 1996-97.  As a result of this upgradation the chances of  promotion of  POs in 20% quota have naturally improved.  On behalf  of the appellants it was submitted that by this upgradation broadly  though not strictly, parity has been achieved in the matter of chances  of promotion of EOs and POs but that would have beneficial effect  only prospectively.

       Learned counsel for the appellants submits that even after

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7  

upgradation of a sizable number of posts of POs as Superintendent of  Customs, the grievance for past injustice suffered by POs between  January 1988 to 29.5.1997, that is before certain posts were  upgraded, survive and deserve redressal by this Court. It is also  submitted that on proper fixation of just or equal quota for promotion  of POs proportionate to their strength they deserve to be  retrospectively considered  for promotion to grade ’A’ posts and  fixation of notional seniority, as, in the meantime, they have already  earned one promotion.  A suggestion was made on behalf of the  appellants through their counsel that in order to do complete justice  by undoing the alleged past illegalities,  the upgradation of 429 posts  in 1996 and 120 posts made in 1997 of POs, be pushed back to the  date of commencement of 1988 Rules and respondents be directed to  undertake the exercise over again of considering promotions of POs  and EOs on the basis of the posts notionally available as a result of  upgradation.  Some suggestions were also made with regard to the  consideration of POs for future promotion from Group ’B’ to Group ’A’  posts.

       Awaiting formal instructions to be received by the counsel for  the Union of India we adjourned the matter on 16.4.2002.  On  30.4.2003 it was directed to be re-listed on 9.7.2003.  On the date  when the matter was listed for further hearing Learned counsel for  the Union of India, on instructions, very categorically stated that the  proposal made on behalf the appellants after upgradation of posts for  their retrospective consideration for promotion is unacceptable to the  Government as it is impracticable and would involve a cumbersome  exercise of reopening all promotions between January 1988 to  29.5.1997.  It would also adversely affect a large number of EOs and  POs who were not parties before the tribunal and are not parties  before this Court, besides unsettling things and state of affairs which  came into existence all along and upheld by competent adjudicating  forums on earlier occasion.

       Fixation of quotas or different avenues and ladders for  promotion in favour of various categories of posts in feeder cadres  based upon the structure and pattern of the Department is a  prerogative of the employer, mainly pertaining to policy making field.  The relevant considerations in fixing a particular quota for a particular  post are various such as the cadre strength in the feeder quota,  suitability more or less of the holders in the feeder post, their nature  of duties, experience and  the channels of promotion  available to the  holders of posts in the feeder cadres.  Most important of them all is  the requirement of the promoting authority for manning the post on  promotion with suitable candidates.   Thus, fixation of quota for  various categories of posts in the feeder cadres requires  consideration of various relevant factors, a few amongst them have  been mentioned for illustration.  Mere cadre strength of a particular  post in  feeder cadre cannot be  a sole criteria or basis to claim parity  in the chances of promotion by various holders of posts in feeder  categories.                    Normally, where officers are to be drawn for promotion from  different posts in the feeder cadre, quota for each post in the feeder  cadre is maintained proportionately to the sanctioned strength in that  post.  This, however, cannot be an inviolable rule of strict application  in every case, with any absolute equality of arithmetical exactitude  but may vary case to case depending upon the pattern, structure and  hierarchies in the Departmental set up as well as exigencies and  balancing needs of Administration.  There are other relevant  considerations, some of which have been mentioned above, which  may require departure from the practice of fixation of quota for each  post in the feeder cadre, solely proportionate to its strength.

       In the instant case, on behalf of the UOI, full and overall

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7  

justification has been shown for fixing only 20% quota for POs as  against 75% quota for EOs.  It has been stated in the counter- affidavit by the UOI that regular channel of promotion for POs in their  own line is to the post of Superintendent (Customs)(Group B) and in  that they have 100% promotion quota. EOs and Superintendents  (Group C) can claim no consideration for promotion on those posts  which are exclusively earmarked for POs.  It is submitted that  keeping in  view the availability of large number of POs with severe  competition for them for limited number of posts of promotion in their  own line, additional avenue of promotion to the extent of 20% has  been provided to them for the posts of Appraiser which is ex cadre  post for them outside their own channel and to which otherwise they  would not be entitled to.  Thus, the amended rules which provide  them dual chances of promotion i.e. 100% in their own channel and  20% for the ex-cadre post of Appraisers along with EOs who have  75% quota more than sufficiently takes care of their interests as well  and cannot be said to be so arbtitrary, discriminatory, unreasonable  as to call for interference in these proceedings.   

       On behalf of POs argument advanced is that even taking  together the quota of 20% fixed of promotion to the post of Appraiser  and 100% fixed for Superintendent (Custom), Group ’B’, the total   posts available for promotion to POs are far less than those available  to EOs.  In actual practice, as is sought to be demonstrated, many  EOs within comparatively lesser period of service secure a march over  POs in getting promotions earlier.  Sometimes, EOs, who were  promoted from ministerial staff and who worked under the POs get  chance of promotion earlier than the latter.

       Subject to further verification by the department, accepting the  realities as have been pointed out to us, that many times EOs with  lesser length of service get early promotion to posts of Appraisers in  Group ’B’,  in our opinion, that alone can be no ground to declare  quota of 75% and 20%  fixed for EO’s and  PO’s respectively, as  either discriminatory or arbitrary. It has been pointed out on behalf of  the UOI that if, as prayed by POs, there  20% quota is stepped up to  make it 50% or above, there is likelihood that even in the ex-cadre  line of Appraisers the POs would surpass the EOs  and there would be  stagnation for latter.  In such a situation, in order to balance the  chances of promotion, EOs who have only one channel of promotion  as compared to POs who have two channels of promotion, POs have  been consciously given smaller quota in the channel of EOs.  We do  not find any arbitrariness or discriminatory treatment on the part of  the department in fixing such a quota for the two posts.  The lesser  chances of promotion to POs in the line of ex cadre post of Appraiser  is a natural consequence of such balancing of chances of promotion  between EOs in their own channel and POs in an additional channel  provided to them keeping in view their larger cadre strength.

       On behalf of the appellants much emphasis has been laid on  the observation of  the Second Pay Commission in which uniform  scale of pay had been recommended for POs and EOs on the ground  that  their duties are somewhat similar and sometimes in certain   custom offices of big cities, overlap.  Need or desirability for parity in  the pay scales of posts turn on different and ever so many other  considerations and it cannot be indicative of any identity among such  posts or suggestive of need for parity of treatment in all and every  respect, too.  It cannot, however, be seriously denied that the  essential function of EOs is to assist the Appraisers in assessment of  custom duties whereas POs have duties mainly in the field for  checking smuggling and evasion of duties.  It is open to the  department to treat and consider EOs as more suitable for the post of  Appraisers and yet consider for a limited number of those posts POs,  who also occasionally and in certain offices do the work of Appraiser.   It is also found desirable to  augment their chances of promotion to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7  

Group ’B’ posts by considering them for 20%  of post of Appraiser  which is outside their own line.  From the nature of duties, functions  and availability of two  channels of promotion to POs as compared to  EOs, the two cadres constitute two different and distinct classes  which can be given different treatment by providing dissimilar quota  for their promotion to higher Group ’B’ post.  See the following  observations in the case of Kuldeep Kumar Gupta vs. HP State  Electricity Board [2001 (1) SCC 475 at page 484-85 (para 6):  

"Providing a quota is not new in the service  jurisprudence and whenever the feeder  category itself consists of different category  of persons and when they are considered for  any promotion, the employer fixes a quota  for each category so that the promotional  cadre would be equibalanced and at the  same time each category of persons in the  feeder category would get the opportunity of  being considred for promotion.  This is also  in a sense in the larger interest of the  administration when it is the employer who  is best suited to decide the percentage of  posts in the promotional cadre, which can be  earmarked for different category of persons.   In other words this provision actually  effectuates the constitutional mandate  engrafted in Article 16(1), as it would offer  equality of opportunity in the matters  relating to employment and it would not be  the monopoly of a specified category of  persons in the feeder category to get  promotions."

       Learned Senior Counsel arguing  for the POs submits that the  most typical feature of this case is that although below Group ’B’ post  EOs & POs constitute two different cadres but once they are  promoted to Group ’B’ post either as Superintendent (Customs) in the  line of POs or Appraisers in the joint channel available to POs and  EOs, for the purpose of next higher promotion of Group A, they again  join in one feeder post.  It is therefore contended that because of this  typical feature of their conditions of service, the holders of two posts  of POs and EOs deserve just and similar treatment.   

       This contention also is unacceptable. As has been pointed out,  in Group ’B’ posts POs have two channels of promotion; 100% to the  post of Superintendent Group ’B’ and 20% for the post of Appraiser,   EOs have only one channel of promotion with quota of 75% for  promotion to Group ’B’ post.  Thus the holders of two posts constitute  two distinct classes with different conditions of service and nature of  duties.  It is open to the promoting authority to treat them differently  in the matter of providing avenues of promotion to Group ’B’ posts.    In the case of State of Rajasthan vs. Rajendra Kumar Godika  [1993 Suppl. (3) SCC 150 at 167, this Court relied and quoted  with approval the following passage from constitutional law by Prof.  Willis and repelled similar contention on grievance of discrimination:-

"Mathematical nicety and perfect equality are  not required. Similarity, not identity of  treatment, is enough.  If any state of facts can  reasonably be conceived to sustain a  classification, the existence of that state of facts  must be assumed.  One who assails a  classification must carry the burden of showing  that it does not rest upon any reasonable  basis."  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7  

       Articles 14 & 16 of the Constitution of India cannot be  pressed  into service to describe the fixation of lower quota for POs as  discriminatory.  It is well established in law that the right to be  considered for promotion on fair and equal basis without  discrimination may be claimed as a legal and a fundamental right  under Article 14 & 16 of the Constitution but  chances of promotion  as such cannot be claimed as of right (see Ramchnadra Shankar  Deodhar vs. State of Maharashra AIR 1974 SC 259 para 12 at  page 267). The decision relied on behalf of the appellants in the case  of  All India Federation of Central  Excise vs. UOI [1977 (1)  SCC 520] is of little assistance to the appellant’s case.  In that case,  this Court has considered the proposals made by the department for  re-fixation of quota to redress the grievance of the petitioners to  some extent.   In the other case between the same parties reported  in 1999 (3) SCC 384, the Court could not be persuaded to issue any  direction for alteration of the quota fixed.  None of the two decisions  therefore is helpful in supporting the contention advanced on behalf  of the appellants.

       We do not find any legal or constitutional infirmity in the lower  quota fixed for POs as compared to EOs for the post of Appraiser  Group ’B’.  In view of our above conclusion it is not necessary for us  to go into the other alternative prayer that department having itself  upgraded certain number of posts of POs,  and future imbalance in  chances of promotion to POs, to some extent having been set right,  this Court should direct pushing back the benefit of upgradation from  a back date for reconsideration of appellants’ case for notional  promotion and fixing their seniority in the promotion cadre with  consequent monitory benefit and future chances of promotion to  higher posts.  If at all, the said upgradation has also extended further  relief prospectively no doubt, but that is no ground to make it  operative retrospectively and disturb the status quo in vogue for  long, unsettling thereby things which got settled for considerable  time.

       In the result, both the appeals fail and are hereby dismissed  but in the circumstances we will leave the parties to bear their own  costs.