Dwarka Prasad And Others vs Union Of India And Others

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

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

(Group '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.

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

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

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

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."

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.