1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 200 OF 2020
The Institute of Chartered Accountants of India .. Appellant
Versus
J.R. William Singh .. Respondent
J U D G M E N T
M. R. Shah, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 05.02.2019 passed by the Division
Bench of the High Court of Delhi in LPA No. 245 of 2018, by which
the Division Bench of the High Court has allowed the said appeal
preferred by the respondent herein and has quashed and set aside
the judgment and order dated 02.04.2018 passed by the learned
Single Judge of the High Court and consequently has directed the
appellant herein to grant the respondent hereinoriginal appellant
the pay scale and designation of a Section Officer with effect from
2
05.03.1993 and the pay scale and designation of an Executive
Officer with effect from 05.03.2002 under the TimeBound
Promotion Scheme (hereinafter referred to as the TBPS) on notional
basis since the respondent had already superannuated, the original
respondent Institute of Chartered Accountants of India (for short
“ICAI”) has preferred the present appeal. By the impugned
judgment and order, the Division Bench of the High Court has also
directed the appellant to pay the arrears of salary and emoluments
to the respondent, as revised for the aforesaid scales from time to
time.
2. The facts leading to the present appeal in nutshell are as
follows:
That the respondent herein was appointed as an ‘Electrician’
on terms and conditions mentioned in the order of
appointment/letter dated 26.02.1974. That, by the office
memorandum dated 01.05.1976, the respondent was confirmed in
the permanent post of ‘Electrician’ with effect from 16.04.1976.
That the respondent was also released the increments from time to
time. That a settlement dated 10.01.1984 was reached between the
3
appellantInstitute and its Employees’ Association with respect to
time bound promotions/change to the next grade. The said
settlement was to take effect from 01.01.1984. According to the
appellant, the said TBPS was applicable to only two categories of
employees, namely, Peons/Chowkidars/Sweepers (Class IV) and
LDC to Executive Officers Grade (Class III). In the said settlement,
under Clause 1(v) it was further provided that the decision in
respect of cases not falling under the two broad categories referred
to hereinabove, e.g. Jamadar, Drivers, Gestetner Operators,
Electricians, Electrical Foreman and Library Attendant will be taken
up by the President. It appears that thereafter and in light of
Clause 1(v) of the memorandum of settlement dated 10.01.1984, a
decision was taken by the President of the appellant Institute on
25.02.1984, by which it was provided that Jamadar, Drivers,
Gestetner Operators, Electricians etc., as mentioned in Clause 1(v)
of the memorandum of settlement dated 10.01.1984 shall only be
entitled to get the next grade. That thereafter, vide office
memorandum dated 13.03.1984, the respondent was informed that
his basic pay was fixed at Rs.370/ with effect from 01.01.1984. He
4
was further informed with respect to the next increment.
According to the appellant, as per the settlement dated 10.01.1984
and the subsequent decision of the President dated 25.02.1984, the
respondent was given the benefit of enhancement in the salary in
the next grade. That thereafter vide office memorandum dated
08.07.1986, the appellant informed the respondent that on his
completion of 12 years of service on 04.03.1986, his pay scale has
been revised from 33010180EB12500EB15560 to the higher
scale of 42515500EB1556020700EB25800 with effect from
05.03.1986 and that his basic pay has been fixed at Rs.425/ in
that grade. He was also informed with respect to the next
increment to fall due on 05.03.1987. It appears that thereafter
upon acceptance of the recommendations of the Fourth Pay
Commission and in accordance with the option exercised by the
respondent, the pay scale of the respondent was revised to Rs.1200
301560EB402040 with retrospective effect from 01.01.1986 and
that his pay in that grade was fixed at Rs.1320/. It appears that
thereafter in the year 198788, the Employees’ Association raised
certain demands. With respect to the demands raised, a
5
memorandum of settlement dated 02.08.1988 was reached between
the appellant Institute and its Employees’ Association. It appears
that, in terms of the aforesaid settlement dated 02.08.1988, the
time span provided in the TBPS as mentioned in the settlement
dated 10.01.1984 came to be reduced. It appears that thereafter
the Employees’ Association raised several demands in the year
1991. With respect to the fresh demands, a memorandum of
settlement dated 15.06.1991 was reached. It appears that
thereafter the respondent vide his letter dated 12.05.1995 made a
request for promotion under the TBPS provided under the
settlement dated 02.08.1988 as well as the settlement dated
15.06.1991. According to the respondent, he was entitled to get the
promotion after expiry of seven years’ period and that his promotion
became due on 05.03.1993. Pending such representation, vide
office order dated 20.03.1996, the respondent was transferred to
Diary/Dispatch Section. He was asked to look after the work of
Diary/Dispatch Section. However, his designation came to be
continued as Electrician. That vide representation dated
15.11.1999 the respondent requested the Secretary of the appellant
6
Institute for promoting him to the post of Section Officer. It was the
case of behalf of the respondent that he was appointed on
05.03.1974 and that he was given the higher pay scale from time to
time and that he was also given the pay scale of Assistant and
therefore he is entitled to promotion to the next promotional post
i.e. Section Officer with retrospective effect from 05.03.1993.
Thereafter, a number of representations were made. Thereafter, in
the year 2004, the respondent was transferred from the
Diary/Dispatch Section (Head Office) to HRD (Noida). In the order
dated 28.04.2004 also, the designation of the respondent was
mentioned as Electrician. The prayer of the respondent to promote
him to the post of Section Officer under the TBPS came to be
rejected on the ground that as per the settlement dated 10.01.1984
and, more particularly, Clause 1(v) read with the decision of the
President dated 25.02.1984, the respondent shall not be entitled to
the promotion being an Electrician and shall only be entitled to the
next grade which has been given to him. That vide office order
dated 14.02.2005, the respondent was transferred from Noida Office
(Electrician) to Kanpur DCO (Electrician). The said transfer was
7
opposed by the respondent. That thereafter the respondent filed a
Writ Petition (C) No. 8681 of 2005 before the High Court of Delhi,
inter alia, praying to grant him the higher scale and designation of
Section Officer and from Section Officer to the post of an Executive
Officer. He also prayed to quash and set aside the transfer orders
dated 28.04.2004 and 14.02.2005. That, during pendency of the
said petition, the respondent retired on attaining the age of
superannuation. That by the judgment and order dated
02.04.2018, the learned Single Judge of the High Court dismissed
the aforesaid writ petition. That thereafter the respondent preferred
the Letters Patent Appeal before the Division Bench of the High
Court and by the impugned judgment and order, the Division
Bench of the High Court has allowed the said appeal and has
quashed and set aside the judgment and order passed by the
learned Single Judge of the High Court and has directed the
appellant to grant the respondent the pay scale and designation of
Section Officer with effect from 05.03.1993 and the pay scale and
designation of an Executive Officer with effect from 05.03.2002
8
under the TBPS along with the arrears of salary and emoluments,
as revised for those scales from time to time.
2.1 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court, the InstituteICAI has preferred the present appeal.
3. Learned counsel appearing on behalf of the appellant has
vehemently submitted that the High Court has materially erred in
directing the appellant to promote the respondent to the post of
Section Officer and designation of an Executive Officer under the
TBPS. It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court has failed to appreciate
and consider the fact that the respondent being Electrician was not
entitled to the timebound promotion in view of the
settlement/agreement dated 01.10.1984 and, more particularly,
Clause 1(v) and the decision of the President dated 25.02.1984.
3.1 Learned counsel appearing for the appellant has further
submitted that in fact in the promotional channel there was no
promotion from the post of Electrician to that of the Section Officer
and therefore there was no question of granting promotion to the
9
respondent to the post of Section Officer under the TBPS. It is
further submitted by the learned counsel appearing on behalf of the
appellant that the High Court has materially erred in directing the
appellant to promote the respondent to the post of Section Officer
under the TBPS relying and/or considering the subsequent
settlements dated 02.08.1988 and 15.06.1991. It is further
submitted by the learned counsel appearing on behalf of the
appellant that the High Court has materially erred in observing that
in the subsequent settlements dated 02.08.1988 and 15.06.1991
there was no specific exclusion, as provided in the earlier settlement
dated 10.01.1984. It is submitted that in the settlement dated
02.8.1988 it has been specifically provided that the earlier
settlement dated 10.01.1984 shall be continued and/or applicable.
It is submitted that, in fact, by the subsequent settlement dated
02.08.1988, only the time gap was reduced. It is submitted that
therefore the case of the respondent was specifically covered by the
earlier settlement dated 10.01.1984 and the subsequent decision of
the President dated 25.02.1984 which was in terms of Clause 1(v) of
the said settlement.
10
3.2 It is further submitted by the learned counsel appearing on
behalf of the appellant that, as such, the respondent was entitled to
only the next higher scale which was/were being paid to the
respondent from time to time.
3.3 It is further submitted by the learned counsel appearing on
behalf of the appellant that merely because for some time the
respondent was directed to look after the work in Diary/Dispatch
Section as a Section Officer, it cannot be said that he was
appointed/promoted as Section Officer. It is submitted that all
throughout he was continued to be an Electrician and therefore,
being an Electrician, he was not entitled to the timebound
promotion.
3.4 It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court has materially erred in
not appreciating the fact that there was a clear distinction with
regard to the policies applicable to the employees falling in ClassIII
and ClassIV categories and other employees such as Jamadars,
Electricians, Drivers etc. who fall under a special category. It is
further submitted that the employees of the aforesaid category,
11
including the Electricians, were squarely excluded from the terms of
the agreement dated 10.01.1984. It is submitted that therefore the
Division Bench of the High Court has materially erred in allowing
the petition and in quashing and setting aside a wellreasoned
judgment and order passed by the learned Single Judge.
4. The present appeal is vehemently opposed by Ms. Tamali Wad,
learned counsel appearing on behalf of the respondent.
4.1 It is submitted by the learned counsel appearing on behalf of
the respondent that, in the facts and circumstances of the case, the
Division Bench of the High Court has not committed any error in
directing the appellant to grant promotion to the respondent under
the TBPS.
4.2 It is further submitted by the learned counsel appearing on
behalf of the respondent that, as such, the order of the President
dated 25.02.1984 was not communicated to the respondent and
therefore the same was not binding to the respondent.
4.3 It is further submitted that, even otherwise, as rightly
observed by the Division Bench of the High Court, in the
subsequent settlements dated 02.08.1988 and 15.06.1991, there
12
was no specific exclusion with respect to the post of Electrician,
from granting the time bound promotions.
4.4 It is further submitted by the learned counsel appearing on
behalf of the respondent that, even subsequently, the respondent
was appointed as a Section Officer in the Diary/Dispatch Section
and therefore it cannot be said that the respondent continued to
serve as an Electrician. It is submitted that even the respondent
was also given the pay scale of Assistant with effect from
05.03.1996 and therefore was entitled to promotion to the next post
of Section Officer under the TBPS.
4.5 It is further submitted by the learned counsel appearing on
behalf of the respondent that if the submission/contention on
behalf of the appellant is accepted, in that case, there will be
stagnation and the respondent would never get any chance of
promotion under the TBPS, which shall be against the policy of
granting time bound promotion.
4.6 Making the above submissions, it is prayed to dismiss the
present appeal.
5. Heard learned counsel appearing for the parties at length.
13
6. At the outset, it is required to be noted that the dispute is with
respect to the promotion under the TBPS. An employee is entitled
to the promotion under the TBPS only in accordance with the
scheme and the promotion to the next higher post is provided under
the TBPS. It is to be noted that, in the present case, the terms and
conditions of the service of the employees of the appellantICAI were
governed by the settlements/agreements arrived at from time to
time between ICAI and its Employees’ Association. The first
settlement/agreement was arrived at on 10.01.1984 which, inter
alia, provided for Timebound promotions/change to the next grade
for its Class III and Class IV employees. It provided that if any LDC
had already completed five years in the payscale of Rs.260400 he
is to be placed in the payscale of UDCSteno Typist i.e. Rs.330560
and so on. Under Clause 1(v) of the said settlement/agreement, it
was specifically provided that in respect of cases not falling under
the two broad categories i.e. Clause III and Class IV, the decision
was to be taken by the President of ICAI. This included the cases
of Jamadar, Driver and Electrician. The respondent was an
Electrician and therefore he was governed under Clause 1(v) of the
14
settlement dated 10.01.1984. In terms of Clause 1(v) of the
settlement/agreement dated 10.10.1984 which was arrived at
between ICAI and its Employees’ Association, the President of ICAI
took a decision on 25.02.1984, by which it was provided that
Jamadars, Drivers, Electricians etc., as mentioned in Clause 1(v) of
the memorandum of settlement dated 10.01.1984, shall only be
entitled to get the next grade. Accordingly, the respondent herein
was put in the pay scale of Rs.330560 and his basic pay was fixed
at Rs.370/ with retrospective effect from 01.01.1984. At this
stage, it is required to be noted that the said fixation was in
accordance with the decision taken by the President of ICAI dated
25.02.1984. That, thereafter the respondent was granted the next
higher payscale of the grade of Assistant i.e. Rs.425800. That,
thereafter the next settlement between ICAI and its Employees’
Association was arrived at on 02.08.1988 and thereafter in the year
1991. On a bare reading of the subsequent settlements dated
02.08.1988 and 15.06.1991 it appears that only the time gap for
promotion under the TBPS came to be reduced. According to the
respondent, there was no such clarification/clause like Clause 1(v)
15
of the settlement/agreement dated 10.01.1984 excluding the post of
Jamadar, Electrician etc. in the subsequent settlements dated
02.08.1988 and 15.06.1991 and therefore he was entitled to
promotion to the post of Assistant and thereafter to the post of
Section Officer. The High Court in paragraph 17 has accepted the
same and has observed and held that in the subsequent
settlements dated 02.08.1988 and 15.06.1991 it was not clarified
that such of those who had earlier been covered under Clause 1(v)
of the settlement dated 10.01.1984 and who had been granted the
scale of an Assistant, would not be entitled to any further timebound promotion under the settlement dated 02.08.1988, or for
that matter, of the further settlement dated 15.06.1991 and
therefore in the absence of any exclusion of such of those who had
been granted the payscale of an Assistant, would be entitled to the
next higher payscale of the Section Officer on completion of
requisite years of service in terms of settlements dated 02.08.1988
and 15.06.1991. However, the High Court has not properly
considered the subsequent settlement dated 02.08.1988. The High
Court has absolutely misread and misinterpreted the settlement
16
dated 02.08.1988 when it has come to the conclusion, so stated in
paragraph 17 of the impugned judgment and order, that in the
subsequent settlement dated 02.08.1988 there is no specific
exclusion which was there under the special Clause 1(v) of the
settlement dated 10.01.1984. In the memorandum of settlement
dated 02.08.1988, the only change was with respect to the time gap
for promotion under the TBPS as per the earlier settlement dated
10.01.1984 and the period for getting the promotion under the
TBPS came to be reduced. That was the only change/modification.
In the memorandum of settlement dated 02.08.1988 it has been
specifically provided and so stated that except for and subject to the
changes made by the said settlement, namely, reduction of time
period for getting the promotion under the TBPS, all other terms
and conditions relating to the TBPS, as contained in the
settlement/agreement dated 10.01.1984, shall remain in force and
be applicable during the period of the said agreement. By a
subsequent settlement dated 15.06.1991 the period was further
reduced. Therefore, whatever was stated/provided in the
settlement/agreement dated 10.01.1984, more particularly, Clause
17
1(v) and the subsequent decision of the President dated 25.02.1984
continued to be in operation. Therefore, those employees like the
respondent herein serving as Electricians etc. were not entitled to
any promotion under the TBPS, as contained in the
settlement/agreement dated 10.01.1984 and/or such subsequent
memorandum of settlements dated 02.08.1988 and 15.06.1991.
Being an Electrician, the respondent was already given the payscale of an Assistant as per the decision of the President dated
25.02.1984, which was as per Clause 1(v) of the memorandum of
settlement dated 10.01.1984. Therefore, the High Court has
committed a grave error in observing and holding that the
respondent shall be entitled to promotion under the TBPS as per
the memorandum of settlements dated 02.08.1988 and 15.06.1991.
At the cost of repetition, it is to be noted that the employees of ICAI
were governed by the memorandum of settlement dated 10.1.1984
so far as the timebound promotion is concerned and the
subsequent settlements dated 02.08.1988 and 15.06.1991 were in
continuation of the same. No new rights of promotion under the
18
TBPS were conferred under the memorandum of settlements dated
02.08.1988 and 15.06.1991.
7. Now, so far as the submission on behalf of the respondent that
subsequently even the respondent was working as a Section Officer
and, therefore, shall be entitled to promotion under the TBPS to the
post of Section Officer is concerned, it is required to be noted that
as such there was no specific order of promotion promoting the
respondent to the post of Section Officer. For some time, the
respondent was directed to look after the work of Diary/Dispatch
Section. However, his designation came to be continued as
Electrician. Merely because an employee is given a temporary
charge to do a particular work of a particular post, it cannot be said
that in fact he has been promoted to the said post. At this stage, it
is required to be noted that subsequently when the respondent was
transferred in the year 2005 from Noida Office (Electrician) to
Kanpur DCO (Electrician), the respondent opposed the said transfer
contending, inter alia, that there is no post of an Electrician at
Kanpur and therefore he should be continued at Noida (Electrician).
Therefore, even on 04.03.2005, the respondent himself claimed to
19
be the Electrician. Therefore, now it is not open to the respondent
that he was already promoted to the post of Section Officer in the
year 1996. Therefore also, the High Court has committed a grave
error in directing the appellant to promote the respondent to the
post of Section Officer under the TBPS. However, at the same time,
the respondent shall be entitled to the same salary of Section
Officer for the period during which he worked as a Section Officer
either on officiating basis and/or he was given the charge, if not
paid so far.
8. Now, so far as the submission on behalf of the respondent that
if the respondent is not promoted to the post of Section Officer
under the TBPS, in that case, the object and purpose of providing
the promotion under the TBPS, namely, to remove the stagnation at
the work place shall be frustrated is concerned, it is true that the
TBPS is intended to remove the stagnation at the work place.
However, at the same time, one cannot lose sight of the fact that the
promotion shall be governed as per the promotion scheme only. At
no point of time, Clause 1(v) of the main settlement dated
10.01.1984 and the decision of the President dated 25.02.1984 not
20
providing any promotion under the TBPS so far as Electrician etc.
are concerned, has been challenged. It is not that there is a
complete stagnation so far as the respondent is concerned. He has
been granted the next higher grade as per the decision of the
President dated 25.02.1984 which was as per Clause 1(v) of the
main settlement dated 10.01.1984. It is to be noted that, being an
employee and the member of the Employees’ Association, the
settlement arrived at between the management and its Employees’
Association was binding on the respondent.
9. In view of the above and for the reasons stated above, we are
of the firm opinion that the impugned judgment and order passed
by Division Bench of the High Court directing the appellant to
promote the respondent to the post of Assistant and thereafter to
the post of Section Officer under the TBPS as per the memorandum
of settlements dated 02.08.1988 and 15.06.1991 cannot be
sustained and the same deserves to be quashed and set aside.
Accordingly, the impugned judgment and order passed by the
Division Bench of the High Court is quashed and set aside.
However, it is observed and directed that the respondent shall be
21
entitled to the same salary which was being paid to the Section
Officers for the period during which he worked as a Section Officer
either on officiating basis and/or he was given the charge and the
appellant is directed to pay the same, if not paid so far. The appeal
is allowed accordingly. No costs.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi;
January 24, 2020.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 200 OF 2020
The Institute of Chartered Accountants of India .. Appellant
Versus
J.R. William Singh .. Respondent
J U D G M E N T
M. R. Shah, J.
Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 05.02.2019 passed by the Division
Bench of the High Court of Delhi in LPA No. 245 of 2018, by which
the Division Bench of the High Court has allowed the said appeal
preferred by the respondent herein and has quashed and set aside
the judgment and order dated 02.04.2018 passed by the learned
Single Judge of the High Court and consequently has directed the
appellant herein to grant the respondent hereinoriginal appellant
the pay scale and designation of a Section Officer with effect from
2
05.03.1993 and the pay scale and designation of an Executive
Officer with effect from 05.03.2002 under the TimeBound
Promotion Scheme (hereinafter referred to as the TBPS) on notional
basis since the respondent had already superannuated, the original
respondent Institute of Chartered Accountants of India (for short
“ICAI”) has preferred the present appeal. By the impugned
judgment and order, the Division Bench of the High Court has also
directed the appellant to pay the arrears of salary and emoluments
to the respondent, as revised for the aforesaid scales from time to
time.
2. The facts leading to the present appeal in nutshell are as
follows:
That the respondent herein was appointed as an ‘Electrician’
on terms and conditions mentioned in the order of
appointment/letter dated 26.02.1974. That, by the office
memorandum dated 01.05.1976, the respondent was confirmed in
the permanent post of ‘Electrician’ with effect from 16.04.1976.
That the respondent was also released the increments from time to
time. That a settlement dated 10.01.1984 was reached between the
3
appellantInstitute and its Employees’ Association with respect to
time bound promotions/change to the next grade. The said
settlement was to take effect from 01.01.1984. According to the
appellant, the said TBPS was applicable to only two categories of
employees, namely, Peons/Chowkidars/Sweepers (Class IV) and
LDC to Executive Officers Grade (Class III). In the said settlement,
under Clause 1(v) it was further provided that the decision in
respect of cases not falling under the two broad categories referred
to hereinabove, e.g. Jamadar, Drivers, Gestetner Operators,
Electricians, Electrical Foreman and Library Attendant will be taken
up by the President. It appears that thereafter and in light of
Clause 1(v) of the memorandum of settlement dated 10.01.1984, a
decision was taken by the President of the appellant Institute on
25.02.1984, by which it was provided that Jamadar, Drivers,
Gestetner Operators, Electricians etc., as mentioned in Clause 1(v)
of the memorandum of settlement dated 10.01.1984 shall only be
entitled to get the next grade. That thereafter, vide office
memorandum dated 13.03.1984, the respondent was informed that
his basic pay was fixed at Rs.370/ with effect from 01.01.1984. He
4
was further informed with respect to the next increment.
According to the appellant, as per the settlement dated 10.01.1984
and the subsequent decision of the President dated 25.02.1984, the
respondent was given the benefit of enhancement in the salary in
the next grade. That thereafter vide office memorandum dated
08.07.1986, the appellant informed the respondent that on his
completion of 12 years of service on 04.03.1986, his pay scale has
been revised from 33010180EB12500EB15560 to the higher
scale of 42515500EB1556020700EB25800 with effect from
05.03.1986 and that his basic pay has been fixed at Rs.425/ in
that grade. He was also informed with respect to the next
increment to fall due on 05.03.1987. It appears that thereafter
upon acceptance of the recommendations of the Fourth Pay
Commission and in accordance with the option exercised by the
respondent, the pay scale of the respondent was revised to Rs.1200
301560EB402040 with retrospective effect from 01.01.1986 and
that his pay in that grade was fixed at Rs.1320/. It appears that
thereafter in the year 198788, the Employees’ Association raised
certain demands. With respect to the demands raised, a
5
memorandum of settlement dated 02.08.1988 was reached between
the appellant Institute and its Employees’ Association. It appears
that, in terms of the aforesaid settlement dated 02.08.1988, the
time span provided in the TBPS as mentioned in the settlement
dated 10.01.1984 came to be reduced. It appears that thereafter
the Employees’ Association raised several demands in the year
1991. With respect to the fresh demands, a memorandum of
settlement dated 15.06.1991 was reached. It appears that
thereafter the respondent vide his letter dated 12.05.1995 made a
request for promotion under the TBPS provided under the
settlement dated 02.08.1988 as well as the settlement dated
15.06.1991. According to the respondent, he was entitled to get the
promotion after expiry of seven years’ period and that his promotion
became due on 05.03.1993. Pending such representation, vide
office order dated 20.03.1996, the respondent was transferred to
Diary/Dispatch Section. He was asked to look after the work of
Diary/Dispatch Section. However, his designation came to be
continued as Electrician. That vide representation dated
15.11.1999 the respondent requested the Secretary of the appellant
6
Institute for promoting him to the post of Section Officer. It was the
case of behalf of the respondent that he was appointed on
05.03.1974 and that he was given the higher pay scale from time to
time and that he was also given the pay scale of Assistant and
therefore he is entitled to promotion to the next promotional post
i.e. Section Officer with retrospective effect from 05.03.1993.
Thereafter, a number of representations were made. Thereafter, in
the year 2004, the respondent was transferred from the
Diary/Dispatch Section (Head Office) to HRD (Noida). In the order
dated 28.04.2004 also, the designation of the respondent was
mentioned as Electrician. The prayer of the respondent to promote
him to the post of Section Officer under the TBPS came to be
rejected on the ground that as per the settlement dated 10.01.1984
and, more particularly, Clause 1(v) read with the decision of the
President dated 25.02.1984, the respondent shall not be entitled to
the promotion being an Electrician and shall only be entitled to the
next grade which has been given to him. That vide office order
dated 14.02.2005, the respondent was transferred from Noida Office
(Electrician) to Kanpur DCO (Electrician). The said transfer was
7
opposed by the respondent. That thereafter the respondent filed a
Writ Petition (C) No. 8681 of 2005 before the High Court of Delhi,
inter alia, praying to grant him the higher scale and designation of
Section Officer and from Section Officer to the post of an Executive
Officer. He also prayed to quash and set aside the transfer orders
dated 28.04.2004 and 14.02.2005. That, during pendency of the
said petition, the respondent retired on attaining the age of
superannuation. That by the judgment and order dated
02.04.2018, the learned Single Judge of the High Court dismissed
the aforesaid writ petition. That thereafter the respondent preferred
the Letters Patent Appeal before the Division Bench of the High
Court and by the impugned judgment and order, the Division
Bench of the High Court has allowed the said appeal and has
quashed and set aside the judgment and order passed by the
learned Single Judge of the High Court and has directed the
appellant to grant the respondent the pay scale and designation of
Section Officer with effect from 05.03.1993 and the pay scale and
designation of an Executive Officer with effect from 05.03.2002
8
under the TBPS along with the arrears of salary and emoluments,
as revised for those scales from time to time.
2.1 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the Division Bench of the High
Court, the InstituteICAI has preferred the present appeal.
3. Learned counsel appearing on behalf of the appellant has
vehemently submitted that the High Court has materially erred in
directing the appellant to promote the respondent to the post of
Section Officer and designation of an Executive Officer under the
TBPS. It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court has failed to appreciate
and consider the fact that the respondent being Electrician was not
entitled to the timebound promotion in view of the
settlement/agreement dated 01.10.1984 and, more particularly,
Clause 1(v) and the decision of the President dated 25.02.1984.
3.1 Learned counsel appearing for the appellant has further
submitted that in fact in the promotional channel there was no
promotion from the post of Electrician to that of the Section Officer
and therefore there was no question of granting promotion to the
9
respondent to the post of Section Officer under the TBPS. It is
further submitted by the learned counsel appearing on behalf of the
appellant that the High Court has materially erred in directing the
appellant to promote the respondent to the post of Section Officer
under the TBPS relying and/or considering the subsequent
settlements dated 02.08.1988 and 15.06.1991. It is further
submitted by the learned counsel appearing on behalf of the
appellant that the High Court has materially erred in observing that
in the subsequent settlements dated 02.08.1988 and 15.06.1991
there was no specific exclusion, as provided in the earlier settlement
dated 10.01.1984. It is submitted that in the settlement dated
02.8.1988 it has been specifically provided that the earlier
settlement dated 10.01.1984 shall be continued and/or applicable.
It is submitted that, in fact, by the subsequent settlement dated
02.08.1988, only the time gap was reduced. It is submitted that
therefore the case of the respondent was specifically covered by the
earlier settlement dated 10.01.1984 and the subsequent decision of
the President dated 25.02.1984 which was in terms of Clause 1(v) of
the said settlement.
10
3.2 It is further submitted by the learned counsel appearing on
behalf of the appellant that, as such, the respondent was entitled to
only the next higher scale which was/were being paid to the
respondent from time to time.
3.3 It is further submitted by the learned counsel appearing on
behalf of the appellant that merely because for some time the
respondent was directed to look after the work in Diary/Dispatch
Section as a Section Officer, it cannot be said that he was
appointed/promoted as Section Officer. It is submitted that all
throughout he was continued to be an Electrician and therefore,
being an Electrician, he was not entitled to the timebound
promotion.
3.4 It is further submitted by the learned counsel appearing on
behalf of the appellant that the High Court has materially erred in
not appreciating the fact that there was a clear distinction with
regard to the policies applicable to the employees falling in ClassIII
and ClassIV categories and other employees such as Jamadars,
Electricians, Drivers etc. who fall under a special category. It is
further submitted that the employees of the aforesaid category,
11
including the Electricians, were squarely excluded from the terms of
the agreement dated 10.01.1984. It is submitted that therefore the
Division Bench of the High Court has materially erred in allowing
the petition and in quashing and setting aside a wellreasoned
judgment and order passed by the learned Single Judge.
4. The present appeal is vehemently opposed by Ms. Tamali Wad,
learned counsel appearing on behalf of the respondent.
4.1 It is submitted by the learned counsel appearing on behalf of
the respondent that, in the facts and circumstances of the case, the
Division Bench of the High Court has not committed any error in
directing the appellant to grant promotion to the respondent under
the TBPS.
4.2 It is further submitted by the learned counsel appearing on
behalf of the respondent that, as such, the order of the President
dated 25.02.1984 was not communicated to the respondent and
therefore the same was not binding to the respondent.
4.3 It is further submitted that, even otherwise, as rightly
observed by the Division Bench of the High Court, in the
subsequent settlements dated 02.08.1988 and 15.06.1991, there
12
was no specific exclusion with respect to the post of Electrician,
from granting the time bound promotions.
4.4 It is further submitted by the learned counsel appearing on
behalf of the respondent that, even subsequently, the respondent
was appointed as a Section Officer in the Diary/Dispatch Section
and therefore it cannot be said that the respondent continued to
serve as an Electrician. It is submitted that even the respondent
was also given the pay scale of Assistant with effect from
05.03.1996 and therefore was entitled to promotion to the next post
of Section Officer under the TBPS.
4.5 It is further submitted by the learned counsel appearing on
behalf of the respondent that if the submission/contention on
behalf of the appellant is accepted, in that case, there will be
stagnation and the respondent would never get any chance of
promotion under the TBPS, which shall be against the policy of
granting time bound promotion.
4.6 Making the above submissions, it is prayed to dismiss the
present appeal.
5. Heard learned counsel appearing for the parties at length.
13
6. At the outset, it is required to be noted that the dispute is with
respect to the promotion under the TBPS. An employee is entitled
to the promotion under the TBPS only in accordance with the
scheme and the promotion to the next higher post is provided under
the TBPS. It is to be noted that, in the present case, the terms and
conditions of the service of the employees of the appellantICAI were
governed by the settlements/agreements arrived at from time to
time between ICAI and its Employees’ Association. The first
settlement/agreement was arrived at on 10.01.1984 which, inter
alia, provided for Timebound promotions/change to the next grade
for its Class III and Class IV employees. It provided that if any LDC
had already completed five years in the payscale of Rs.260400 he
is to be placed in the payscale of UDCSteno Typist i.e. Rs.330560
and so on. Under Clause 1(v) of the said settlement/agreement, it
was specifically provided that in respect of cases not falling under
the two broad categories i.e. Clause III and Class IV, the decision
was to be taken by the President of ICAI. This included the cases
of Jamadar, Driver and Electrician. The respondent was an
Electrician and therefore he was governed under Clause 1(v) of the
14
settlement dated 10.01.1984. In terms of Clause 1(v) of the
settlement/agreement dated 10.10.1984 which was arrived at
between ICAI and its Employees’ Association, the President of ICAI
took a decision on 25.02.1984, by which it was provided that
Jamadars, Drivers, Electricians etc., as mentioned in Clause 1(v) of
the memorandum of settlement dated 10.01.1984, shall only be
entitled to get the next grade. Accordingly, the respondent herein
was put in the pay scale of Rs.330560 and his basic pay was fixed
at Rs.370/ with retrospective effect from 01.01.1984. At this
stage, it is required to be noted that the said fixation was in
accordance with the decision taken by the President of ICAI dated
25.02.1984. That, thereafter the respondent was granted the next
higher payscale of the grade of Assistant i.e. Rs.425800. That,
thereafter the next settlement between ICAI and its Employees’
Association was arrived at on 02.08.1988 and thereafter in the year
1991. On a bare reading of the subsequent settlements dated
02.08.1988 and 15.06.1991 it appears that only the time gap for
promotion under the TBPS came to be reduced. According to the
respondent, there was no such clarification/clause like Clause 1(v)
15
of the settlement/agreement dated 10.01.1984 excluding the post of
Jamadar, Electrician etc. in the subsequent settlements dated
02.08.1988 and 15.06.1991 and therefore he was entitled to
promotion to the post of Assistant and thereafter to the post of
Section Officer. The High Court in paragraph 17 has accepted the
same and has observed and held that in the subsequent
settlements dated 02.08.1988 and 15.06.1991 it was not clarified
that such of those who had earlier been covered under Clause 1(v)
of the settlement dated 10.01.1984 and who had been granted the
scale of an Assistant, would not be entitled to any further timebound promotion under the settlement dated 02.08.1988, or for
that matter, of the further settlement dated 15.06.1991 and
therefore in the absence of any exclusion of such of those who had
been granted the payscale of an Assistant, would be entitled to the
next higher payscale of the Section Officer on completion of
requisite years of service in terms of settlements dated 02.08.1988
and 15.06.1991. However, the High Court has not properly
considered the subsequent settlement dated 02.08.1988. The High
Court has absolutely misread and misinterpreted the settlement
16
dated 02.08.1988 when it has come to the conclusion, so stated in
paragraph 17 of the impugned judgment and order, that in the
subsequent settlement dated 02.08.1988 there is no specific
exclusion which was there under the special Clause 1(v) of the
settlement dated 10.01.1984. In the memorandum of settlement
dated 02.08.1988, the only change was with respect to the time gap
for promotion under the TBPS as per the earlier settlement dated
10.01.1984 and the period for getting the promotion under the
TBPS came to be reduced. That was the only change/modification.
In the memorandum of settlement dated 02.08.1988 it has been
specifically provided and so stated that except for and subject to the
changes made by the said settlement, namely, reduction of time
period for getting the promotion under the TBPS, all other terms
and conditions relating to the TBPS, as contained in the
settlement/agreement dated 10.01.1984, shall remain in force and
be applicable during the period of the said agreement. By a
subsequent settlement dated 15.06.1991 the period was further
reduced. Therefore, whatever was stated/provided in the
settlement/agreement dated 10.01.1984, more particularly, Clause
17
1(v) and the subsequent decision of the President dated 25.02.1984
continued to be in operation. Therefore, those employees like the
respondent herein serving as Electricians etc. were not entitled to
any promotion under the TBPS, as contained in the
settlement/agreement dated 10.01.1984 and/or such subsequent
memorandum of settlements dated 02.08.1988 and 15.06.1991.
Being an Electrician, the respondent was already given the payscale of an Assistant as per the decision of the President dated
25.02.1984, which was as per Clause 1(v) of the memorandum of
settlement dated 10.01.1984. Therefore, the High Court has
committed a grave error in observing and holding that the
respondent shall be entitled to promotion under the TBPS as per
the memorandum of settlements dated 02.08.1988 and 15.06.1991.
At the cost of repetition, it is to be noted that the employees of ICAI
were governed by the memorandum of settlement dated 10.1.1984
so far as the timebound promotion is concerned and the
subsequent settlements dated 02.08.1988 and 15.06.1991 were in
continuation of the same. No new rights of promotion under the
18
TBPS were conferred under the memorandum of settlements dated
02.08.1988 and 15.06.1991.
7. Now, so far as the submission on behalf of the respondent that
subsequently even the respondent was working as a Section Officer
and, therefore, shall be entitled to promotion under the TBPS to the
post of Section Officer is concerned, it is required to be noted that
as such there was no specific order of promotion promoting the
respondent to the post of Section Officer. For some time, the
respondent was directed to look after the work of Diary/Dispatch
Section. However, his designation came to be continued as
Electrician. Merely because an employee is given a temporary
charge to do a particular work of a particular post, it cannot be said
that in fact he has been promoted to the said post. At this stage, it
is required to be noted that subsequently when the respondent was
transferred in the year 2005 from Noida Office (Electrician) to
Kanpur DCO (Electrician), the respondent opposed the said transfer
contending, inter alia, that there is no post of an Electrician at
Kanpur and therefore he should be continued at Noida (Electrician).
Therefore, even on 04.03.2005, the respondent himself claimed to
19
be the Electrician. Therefore, now it is not open to the respondent
that he was already promoted to the post of Section Officer in the
year 1996. Therefore also, the High Court has committed a grave
error in directing the appellant to promote the respondent to the
post of Section Officer under the TBPS. However, at the same time,
the respondent shall be entitled to the same salary of Section
Officer for the period during which he worked as a Section Officer
either on officiating basis and/or he was given the charge, if not
paid so far.
8. Now, so far as the submission on behalf of the respondent that
if the respondent is not promoted to the post of Section Officer
under the TBPS, in that case, the object and purpose of providing
the promotion under the TBPS, namely, to remove the stagnation at
the work place shall be frustrated is concerned, it is true that the
TBPS is intended to remove the stagnation at the work place.
However, at the same time, one cannot lose sight of the fact that the
promotion shall be governed as per the promotion scheme only. At
no point of time, Clause 1(v) of the main settlement dated
10.01.1984 and the decision of the President dated 25.02.1984 not
20
providing any promotion under the TBPS so far as Electrician etc.
are concerned, has been challenged. It is not that there is a
complete stagnation so far as the respondent is concerned. He has
been granted the next higher grade as per the decision of the
President dated 25.02.1984 which was as per Clause 1(v) of the
main settlement dated 10.01.1984. It is to be noted that, being an
employee and the member of the Employees’ Association, the
settlement arrived at between the management and its Employees’
Association was binding on the respondent.
9. In view of the above and for the reasons stated above, we are
of the firm opinion that the impugned judgment and order passed
by Division Bench of the High Court directing the appellant to
promote the respondent to the post of Assistant and thereafter to
the post of Section Officer under the TBPS as per the memorandum
of settlements dated 02.08.1988 and 15.06.1991 cannot be
sustained and the same deserves to be quashed and set aside.
Accordingly, the impugned judgment and order passed by the
Division Bench of the High Court is quashed and set aside.
However, it is observed and directed that the respondent shall be
21
entitled to the same salary which was being paid to the Section
Officers for the period during which he worked as a Section Officer
either on officiating basis and/or he was given the charge and the
appellant is directed to pay the same, if not paid so far. The appeal
is allowed accordingly. No costs.
………………………..J.
(ASHOK BHUSHAN)
…………………………..J.
(M. R. SHAH)
New Delhi;
January 24, 2020.
