Holding

The lower 20% quota for Preventive Officers in promotion to Appraiser Group B is constitutionally valid and not arbitrary or discriminatory, as the employer’s discretion to fix promotion quotas based on administrative considerations is permissible under Articles 14 and 16.

Summary

The appellants, Preventive Officers (POs) appointed in Central Services Group C, challenged the Department of Revenue (Customs Appraisers Recruitment) Rules, 1988 which fixed a 20% quota for POs and a 75% quota for Examining Officers (EOs) for promotion to the post of Appraiser (Group B), alleging arbitrariness and violation of Articles 14 and 16 of the Constitution. The Central Administrative Tribunal had rejected the challenge, and the matter reached the Supreme Court on civil appeals. The Court examined whether the lower quota for POs was discriminatory and whether the right to promotion is a fundamental right enforceable under Articles 14 and 16. It held that the employer’s discretion to fix promotion quotas based on functional considerations, cadre strength, and the existence of separate promotion channels is permissible and not violative of constitutional equality. The Court further observed that the right to be considered for promotion, not the right to promotion itself, is protected under Articles 14 and 16. Consequently, the appeals were dismissed and the quota structure upheld, with no retrospective application of the recent up‑gradation of PO posts.

Issues considered

The fixation of a 20% quota for promotion of Preventive Officers to the post of Appraiser (Group B) under the 1988 Rules violates Articles 14 and 16 of the Constitution.
Whether the employer's discretion in fixing promotion quotas, considering cadre strength, nature of duties and promotion channels, is subject to judicial review for arbitrariness or discrimination.
Whether the right to promotion is a fundamental right enforceable under Articles 14 and 16, or merely a right to be considered for promotion.
Whether the up‑gradation of PO posts to Superintendent should be applied retrospectively to affect past promotion opportunities.

Legislation cited

Constitution of Indias. Article 14, s. Article 16, s. Article 309

Subjects

service lawpromotion quotaPreventive OfficerExamining OfficerArticles 14 and 16administrative discretiondepartmental rulescivil appeal

Judgment

A DWARKA PRASAD AND ORS.
v.
UNION OF INDIA AND OTHERS.

JULY 28, 2003

B [DORAISWAMY RAJU AND D.M. DHARMADHIKARJ, JJ.]

Service law:

Department ofRevenue (Customs Appraisers Recruitment) Rules, 1988-
C Promotion to the post of Appraiser Group 'B '-Fixation of 20% quota for
Preventive Officers and 75% for Examining Officers - POs pleading that
lower quota fixed as compared to EOs, thus fixation arbitrary and
discriminatory hence violative of Articles, 14 and 16--0n appeal held: There
is no legal or constitutional infirmity in the lower quota fixed for POs as
compared to EOs for the post of Appraiser-In law the right to be considered
D for promotion on fair and equal basis may be claimed as a legal and a
fundamental right under Articles 14 and 16 but not chances of promotion-
Further Articles 14 and 16 cannot be pressed into service to describe the
fixation of lower quota for POs as discriminatory-Constitution of India,
1950-Articles 14 and 16.

E Appellants were appointed as Preventive Officers-POs (Grade I) in
Central Services Grade 'C' (non-gazetted). Department of Revenue (Customs
Appraisers Recruitment) Rules, 1988 framed under the Constitution, fixed
75% quota for Examining Officers (EO) and 20% quota for POs to the
promotion post of Appraiser. Appellants challenged the quota fixed as it was
F much lower as compared to the quota fixed in favour of EOs. Tribunal rejected
the same. Hence the present appeals.

Appellant contended that fixation of 20% quota for promotion of POs is
not proportionate to their cadre strength; that fixation of such small quota as
compared to 75% for EOs is arbitrary and discriminatory hence violative of
Articles 14 and 16 of the Constitution; that in normal course POs would be
G taking fifteen years for promotion to Grade 'D' cadre whereas EOs would
take fi\'e years which is creating huge imbalance; that by upgradation of POs
to the post of Superintendent of Customs (Preventive) in the years 1996-97
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

H 784
DWARKAPRASADv. U.O.L 785
prospectively; that upgradation of POs posts shou.ld be made operative A
retrospectively; and that although below Group 'B' post EOs and 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 purposes of next higher
promotion of Group A, they again join in one feeder post, thus the holders of
two posts of POs and EOs deserve just and similar treatment. B
Respondent-Union of India contended that although POs and EOs have
been recruited through common competitive examination, the functions and
nature of work are distinct; that conscious decision has been taken to provide
only 20% quota to POs for the post of Appraiser, an ex-cadre post for them
because they have 100% quota for the post of Superintendent (Customs) C
Group 'B' in their own channel; and that in the ex-cadre post of Appraiser if
their quota is further increased above 20% they would make an inroad into
the chances of EOs.
Dismissing the appeals, the Court
HELD: 1. There is no legal or constitutional infirmity in the lower quota D
fixed for POs as compared to EOs forthe post of Appraiser Group 'B'. Articles
14 and 16 of the Constitution cannot be pressed into service by describing
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
Articles 14 and 16 of the Constitution but chances of promotion as such cannot E
be claimed as of right. [796-D; 796-A-BI

All India Federation of Central Excise v. UOI, [199711 SCC 520,
distinguished.

Ramchandra Shankar Deodhar v. State ofMaharashtra, AIR (1974) SC p
259, relied on.

2. 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 G
particular quota for a particular post are the cadre strength in the feeder
quota, suitability 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 is the requirement of the promoting
authority for manning the post on promotion with suitable candidates. Mere
cadre strength of a particular post in feeder cadre cannot be a sole criteria H
786 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A or basis to claim parity in the chances of promotion by various holders of
posts in feeder categories. (792-F-H; 793-AI
3. 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
B be an inviolable rule of strict application in every case, with any absolute
equality of arithmetical exactitude but may vary from 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 which may require departure from the practice of
fixation of quota for each post in the feeder cadre, solely proportionate to its
C strength. (793-A-CI
All India Federation of Central Excise v. UOI, (1997] I SCC 520,
referred to.
4.1. Many times EOs with lesser length of service get early promotion to
posts of Appraisers in Group 'B', that alone cannot be a ground to declare quota
D of75% and 20% fixed for EO's and PO's respectively, as either discriminatory
or arbitrary. The submission that if, as prayed by POs, their 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
the latter. In such a situation, in order to balance the chances of promotion, EOs
E 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. Thus, there is no 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
F own channel and POs in an additional channel provided to them keeping in view
their larger cadre strength. (794-A-D)
4.2. 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
G in all and every respect, too. It cannot, however, be 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
H of Appraiser. It is also found desirable to augment their chances of promotion
DWARKAPRASADv. U.O.l. 787
to Group 'B' posts by considering them for 20% of post of Appraiser which A
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. (794-E-Gl
B
Ku/deep Kumar Gupta v. H.P. State Electricity Board, (2001( I SCC
47, referred to.

4.3. It cannot be accepted that although below Group 'B' post EOs and
POs constitute two different cadres but once they are promoted to Group 'B'
post either as Superintendent (Customs) or Appraisers in the joint channel C
available to POs and EOs, for the purposes of next higher promotion of Group
'A', they again join in one feeder post thus, they deserve just and similar
treatment. Group 'B' posts have two channels of promotion; I 00% to the post
of Superintendent Group 'B' and 20% for the post of Appraiser. EOf. 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 D
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. (795-D-FJ

State ofRajasthan v. Rajendra Kumar Godika, (1993) Suppl. 3 SCC 150, E
referred to.

4.4. The upgradation of POs posts 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, unsetting thereby
things which got settled for considerable time. (796-F]
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5332of1997.

From the Judgment and Order dated 30. I 0.1996 of the Central
Administrative Tribunal at Mumbai in O.A. No. 456 of 1994.
WITH G
C.A. No. 5333of1997.
P.P. Rao, Janaranjan Das, G. Balaji and S. Mishtra for the Appellant in
C.A. No. 5332/97.

A.K. Ganguli, Jana Kalyan Das for the Appellant in C.A. No. 5333/97. H
788 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A P.P. Malhotra, Hemant Sharma and C.V. Subba Rao for P. Parmeswaran
for U.0.1.
Ms. Chandan Ramamurthy for the Respondent in C.A. No. 5332/97.
The Judgment of the Court was delivered by
DHARMADHIKARI, J. In these appeals the appellants question the
B 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
C 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.
D 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.
E 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
F 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
G 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
H All India Federation a/Central Excise v. UOI, [1997] I SCC 520.
DWARKA PRASAD v. U.0.1. [DHARMADHIKAR!, J.] 789
To elucidate and highlight their grievance of discriminatory treatment to A
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)
B
~
DR
J i
(Promotion) .

i c
J
Superintendents
i
Appraiser (Group'B')
i
Superintendents
Customs (250) (520) of Central Excise

~
(Group'B') (Group 'B')
D

! J
I 00% promotion DRs 50%(260)
of POs Preventive
l
Promotion 50%
(260)

~
Officers (Group 'C')
(1708)
E

75%~195
(Examiners) (350)
~
20% 52
Preventive Officers
5%
Offi~e
=~3
(Group 'C') (Group 'C') (1708) Supdts*
F

~
(Group 'C')

r1i
75% 25% 75% 25%
l
100%
G
DR promotion DR promotion promotion
of UDCs & of UDCs ofUDCs
Stenos & Stenos & Stenos
(Group 'C')
* In addition OSs have a channel of promotion as Asst. Administrative
Officers, Administrative Officers and Chief Administrative Officers. H
-·---- -- -------
790 SUPREME COURT REPORTS [2003) SUPP. I S.C.R.

A 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 EOs 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
B 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
C years for promotion to that grade. It is submitted that this sitiiation 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
D 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
E 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 I 00%
quota for the post of Superintendent (Customs) Group 'B' in their own
F 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 dutiec 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
G 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
H former. According to the Union of India, in 1961 Rules, there were no quotas
DWARKA PRASAD v. U.0.1. [DHARMADHIKARI, .I.] 791
separately fixed in the ratio of 75%, 20% and 5% for EOs, POs and Office A
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 B
have no other channel of promotion the promotional prospects of POs would
have been poorer. It is submitted that POs have I 00% 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 iftheir quota is further
increased above 20% they would make inroad into the chances of EOs. This C
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 D
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.
E
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 redres:-al by
this Court. It is also submitted that on proper fixation of just or equal quota F
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 l 996 and l 20 posts made in 1997 of POs, be G
pushed back to the date of commencement of l 988 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. H
792 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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
B 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
C 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
D 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. Mose important of them all is the
requirement of the promoting authority for manning the post on promotion
E 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.
F
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
G 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.
H
DWARKA PRASAD v. U.O.L [DHARMADH!KARL J.] 793

In the instant case, on behalf of the UOI, full and overall justification A
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 eannarked for POs. It is submitted that B
keeping in view the availability oflarge number of POs with severe competition
for them for limited number of posts of promotion in :hei, 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 C
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 arbitrary, discriminatory, unreasonable as to call for
interference in these proceedings.
D
On behalf of POs argument advanced is that even taking together the
quota of20% fixed for 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 E
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 p
service get early promotion to posts of Appraisers in Group 'B', in our
opinion, that alone can be no g1ound to declare quota of 75% and 20% fixed
for EOs and POs respectively, as either discriminatory or arbitrary. It has been
pointed out on behalf of the UOI that if, as prayed by POs, the 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 G
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 H
794 SUPREME COURT REPORTS [2003] SUPP. I S.C.R.

A 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
B 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
C 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
D 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
E 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 Ku/deep Kumar Gupta
v. HP State Electricity Board, (2001] l SCC 475 at pages 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
F
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 considered for
promotion. This is also in a sense in the larger interest of the
G 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( I), as it would offer equality of opportunity in the matters
relating to employment and it would not be the monopoly of a specified
H
DWARKA PRASAD v. U.0.1. [DHARMADHIKARI. J.] 795

category of persons in the feeder category to get promotions." A
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 B
promotion of Group 'A', they again join in one feeder post. It is therefore
contended that because of this typical feature of thei cc11ditions 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 C
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 D
promotion to Group 'B' posts. In the case of State of Rajasthan v. 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, E
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."
F
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 Articles 14 & 16 of the Constitution but chances of G
promotion as such cannot be claimed as of right (see Ramchandra Shankar
Deodhar v. 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 v. UOI, [1977] I SCC 520 is of little assistance to the
appellants case. In that case, this Court has considered the proposals made
by the depaiiment for re-fixation of quota to redress the grievance of the H
796 SUPREME COURT REPORTS (2003] SUPP. I S.C.R.

A 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 therefori:,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
B 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
C of upgradation from a back date for reconsideration of appellants' case for
notional promotion and fixing their seniority in the promotion cadre with
consequent monetary 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
D 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 ..

N.J. Appeals dismissed.