INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA versus J.R. WILLIAM SINGH
[2020] 2 S.C.R. 464, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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THE INSTITUTE OF CHARTERED ACCOUNTANTS
OF INDIA
v.
J.R. WILLIAM SINGH
(Civil Appeal No. 200 of 2020)
JANUARY 24, 2020
[ASHOK BHUSHAN AND M. R. SHAH, JJ.]
Service Law – Higher Scale and designation – Time bound
promotion – claim for- The respondent was appointed as an
‘Electrician’ – A settlement dated 10.01.1984 was reached between
the appellant – institute and its Employees’ Association with respect
to time bound promotions/ change to the next grade – According to
the appellant, the said settlement was not applicable to Jamadar,
Drivers, Gestetner operators, Electricians etc. – However, in light
of Cl. 1(v) of the memorandum of settlement dated 10.01.1984, a
decision was taken to provide Jamadar, Drivers, Gestetner
operators, electricians etc. the next grade – Thereafter, in another
memorandum of settlement dated 02.08.1988 and 15.06.1991 the
only change was with respect to the time gap for promotion under
the earlier settlement deed dated 10.01.1984 and the period for
getting the promotion under the TBPS was reduced – According to
respondent, he was entitled to promotion to the post of Assistant
and thereafter to the post of section officer – Writ petition – The
Single Judge of the High Court dismissed the writ petition – However,
the Division Bench of the High court directed the appellant to grant
the respondent promotion under the TBPS as per memorandum of
settlement dated 02.08.1988 and 15.06.1991 – On appeal,
held: In
the memorandum of settlement dated 02.08.1988, it was specifically
provided 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 – Whatever, was stated/
provided in the settlement/agreement dated 10.01.1984 and in Cl.
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(1)(v) continued to be in operation – Therefore, those employees
like the respondent serving as Electricians etc. were not entitled to
any promotion under the TBPS, as contained in the settlement/
agreement dated 10.01.1984 and such subsequent memorandum of
settlements dated 02.08.1988 and 15.06.1991 – The respondent was
already given the Pay-scale of an Assistant as per Cl. 1(v) of the
memorandum by the decision dated 25.02.1984 of the President of
Employees Association – Therefore, the High Court committed 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.
Allowing the appeal, the Court
Held : 1. 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 appellant-ICAI 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 Time-bound 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 pay-scale of Rs.260-400 he is
to be placed in the pay-scale of UDC-Steno Typist i.e. Rs.330-
560 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 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
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
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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.330-560 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 pay-scale
of the grade of Assistant i.e. Rs.425-800.  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) 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
time-bound 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 pay-scale of an Assistant, would be entitled
to the next higher pay-scale 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 mis-read and mis-interpreted the
settlement 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
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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 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 pay-
scale 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 time-bound 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 TBPS were conferred under the
memorandum of settlements dated 02.08.1988 and 15.06.1991.
[Para 6][474A-H, 475A-H; 476A-C]
2. 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
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
v. J.R. WILLIAM SINGH
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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 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. [Para
7][476D-H]
CIVIL
APPELLATE JURISDICTION : Civil Appeal No. 200 of
2020.
From the Judgment and Order dated 05.02.2019 of the High Court
of Delhi at New Delhi in LPA No. 245 of 2018.
Rana Mukherjee, Sr. Adv., Pramod Dayal, Nikunj Dayal, Ms. Payal
Dayal, Ms. Daisy Hannah, Advs. for the Appellant.
Ms. Tamali Wad, Sidharth Mahajan, Advs. for the Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. 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
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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
herein-original appellant the pay scale and designation of a Section Officer
with effect from 05.03.1993 and the pay scale and designation of an
Executive Officer with effect from 05.03.2002 under the Time-Bound
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 appellant-Institute 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 was further informed with
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
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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 330-10-180-EB-12-500-EB-15-560 to the higher scale of
425-15-500-EB-15-560-20-700-EB-25-800 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.1200-30-1560-EB-40-2040 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 1987-88, the Employees’ Association raised certain
demands.  With respect to the demands raised, a 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
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
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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 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 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 Institute-
ICAI 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
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
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that the High Court has failed to appreciate and consider the fact that the
respondent being Electrician was not entitled to the time-bound 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 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.
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
time-bound promotion.
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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 Class-III and Class-IV
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, 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 well-reasoned 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 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.
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
v. J.R. WILLIAM SINGH [M. R. SHAH, J.]
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4.6 Making the above submissions, it is prayed to dismiss the
present appeal.
5. Heard learned counsel appearing for the parties at length.
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 appellant-ICAI 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 Time-bound 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 pay-
scale of Rs.260-400 he is to be placed in the pay-scale of UDC-Steno
Typist i.e. Rs.330-560 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
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.330-560 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 pay-scale of the grade of Assistant i.e. Rs.425-800.  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
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such clarification/clause like Clause 1(v) 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 time-bound 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 pay-scale of an Assistant, would be
entitled to the next higher pay-scale 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 mis-read and mis-interpreted the settlement 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 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
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
v. J.R. WILLIAM SINGH [M. R. SHAH, J.]
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476
SUPREME COURT REPORTS
[2020] 2 S.C.R.
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 pay-scale 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 time-bound 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 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 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.
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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 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 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.
Ankit Gyan
Appeal allowed.
THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA
v. J.R. WILLIAM SINGH [M. R. SHAH, J.]