INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA versus J.R. WILLIAM SINGH on 24 January 2020

(1) (v) continued to be in operation – Therefore, those employeeslike the respondent serving as Electricians etc. were not entitled toany promotion under the TBPS, as contained in the settlement/agreement dated 10.01.1984 and such subsequent memorandum ofsettlements dated 02.08.1988 and 15.06.1991 – The respondent wasalready given the Pay-scale of an Assistant as per Cl. 1(v) of thememorandum by the decision dated 25.02.1984 of the President ofEmployees Association – Therefore, the High Court committed graveerror in observing and holding that the respondent shall be entitledto promotion under the TBPS as per the memorandum of settlementsdated 02.08.1988 and 15.06.1991.

Allowing the appeal, the Court

Conclusion

Allowing the appeal, the Court

Held : 1. At the outset, it is required to be noted that thedispute is with respect to the promotion under the TBPS. Anemployee is entitled to the promotion under the TBPS only inaccordance with the scheme and the promotion to the next higherpost is provided under the TBPS. It is to be noted that, in thepresent case, the terms and conditions of the service of theemployees of the appellant-ICAI were governed by thesettlements/agreements arrived at from time to time betweenICAI and its Employees’ Association. The first settlement/agreement was arrived at on 10.01.1984 which, inter alia, providedfor Time-bound promotions/change to the next grade for its ClassIII and Class IV employees. It provided that if any LDC hadalready completed five years in the pay-scale of Rs.260-400 he isto 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 casesnot falling under the two broad categories i.e. Clause III andClass IV, the decision was to be taken by the President of ICAI.This included the cases of Jamadar, Driver and Electrician. Therespondent was an Electrician and therefore he was governedunder Clause 1(v) of the settlement dated 10.01.1984. In termsof Clause 1(v) of the settlement/agreement dated 10.10.1984which 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, Electriciansetc., as mentioned in Clause 1(v) of the memorandum of settlement AB

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Adated 10.01.1984, shall only be entitled to get the next grade.Accordingly, the respondent herein was put in the pay scale ofRs.330-560 and his basic pay was fixed at Rs.370/- withretrospective effect from 01.01.1984. At this stage, it is requiredto be noted that the said fixation was in accordance with thedecision taken by the President of ICAI dated 25.02.1984. That,Bthereafter the respondent was granted the next higher pay-scaleof the grade of Assistant i.e. Rs.425-800. That, thereafter thenext settlement between ICAI and its Employees’ Associationwas arrived at on 02.08.1988 and thereafter in the year 1991.On a bare reading of the subsequent settlements datedC02.08.1988 and 15.06.1991 it appears that only the time gap forpromotion under the TBPS came to be reduced. According tothe respondent, there was no such clarification/clause like Clause1(v) of the settlement/agreement dated 10.01.1984 excluding thepost of Jamadar, Electrician etc. in the subsequent settlementsdated 02.08.1988 and 15.06.1991 and therefore he was entitledDto promotion to the post of Assistant and thereafter to the post ofSection Officer. The High Court in paragraph 17 has acceptedthe same and has observed and held that in the subsequentsettlements dated 02.08.1988 and 15.06.1991 it was not clarifiedthat such of those who had earlier been covered under ClauseE1(v) of the settlement dated 10.01.1984 and who had been grantedthe scale of an Assistant, would not be entitled to any furthertime-bound promotion under the settlement dated 02.08.1988,or for that matter, of the further settlement dated 15.06.1991 andtherefore in the absence of any exclusion of such of those whohad been granted the pay-scale of an Assistant, would be entitledFto the next higher pay-scale of the Section Officer on completionof requisite years of service in terms of settlements dated02.08.1988 and 15.06.1991. However, the High Court has notproperly considered the subsequent settlement dated 02.08.1988.The High Court has absolutely mis-read and mis-interpreted theGsettlement 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 nospecific exclusion which was there under the special Clause 1(v)of the settlement dated 10.01.1984. In the memorandum ofsettlement dated 02.08.1988, the only change was with respectH

to the time gap for promotion under the TBPS as per the earliersettlement dated 10.01.1984 and the period for getting thepromotion under the TBPS came to be reduced. That was theonly change/modification. In the memorandum of settlementdated 02.08.1988 it has been specifically provided and so statedthat except for and subject to the changes made by the saidsettlement, namely, reduction of time period for getting thepromotion under the TBPS, all other terms and conditions relatingto the TBPS, as contained in the settlement/agreement dated10.01.1984, shall remain in force and be applicable during theperiod of the said agreement. By a subsequent settlement dated15.06.1991 the period was further reduced. Therefore, whateverwas stated/provided in the settlement/agreement dated10.01.1984, more particularly, Clause 1(v) and the subsequentdecision of the President dated 25.02.1984 continued to be inoperation. Therefore, those employees like the respondentherein serving as Electricians etc. were not entitled to anypromotion under the TBPS, as contained in the settlement/agreement dated 10.01.1984 and/or such subsequentmemorandum 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 dated25.02.1984, which was as per Clause 1(v) of the memorandum ofsettlement dated 10.01.1984. Therefore, the High Court hascommitted a grave error in observing and holding that therespondent shall be entitled to promotion under the TBPS asper the memorandum of settlements dated 02.08.1988 and15.06.1991. At the cost of repetition, it is to be noted that theemployees of ICAI were governed by the memorandum ofsettlement dated 10.1.1984 so far as the time-bound promotionis concerned and the subsequent settlements dated 02.08.1988and 15.06.1991 were in continuation of the same. No new rightsof promotion under the TBPS were conferred under thememorandum 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 respondentthat subsequently even the respondent was working as a SectionOfficer and, therefore, shall be entitled to promotion under theTBPS to the post of Section Officer is concerned, it is required AB

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Ato be noted that as such there was no specific order of promotionpromoting the respondent to the post of Section Officer. For sometime, the respondent was directed to look after the work of Diary/Dispatch Section. However, his designation came to be continuedas Electrician. Merely because an employee is given a temporarycharge to do a particular work of a particular post, it cannot beBsaid that in fact he has been promoted to the said post. At thisstage, it is required to be noted that subsequently when therespondent was transferred in the year 2005 from Noida Office(Electrician) to Kanpur DCO (Electrician), the respondentopposed the said transfer contending, inter alia, that there is noCpost of an Electrician at Kanpur and therefore he should becontinued 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 promotedto the post of Section Officer in the year 1996. Therefore also, the High Court has committed a grave error in directing theDappellant to promote the respondent to the post of Section Officerunder the TBPS. However, at the same time, the respondentshall be entitled to the same salary of Section Officer for the periodduring which he worked as a Section Officer either on officiatingbasis and/or he was given the charge, if not paid so far. [ParaE7][476D-H]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 200 of2020.

From the Judgment and Order dated 05.02.2019 of the High Courtof Delhi at New Delhi in LPA No. 245 of 2018.FRana Mukherjee, Sr. Adv., Pramod Dayal, Nikunj Dayal, Ms. PayalDayal, Ms. Daisy Hannah, Advs. for the Appellant.

Ms. Tamali Wad, Sidharth Mahajan, Advs. for the Respondent.

The Judgment of the Court was delivered byGM. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 05.02.2019 passed by the Division Bench of the HighCourt of Delhi in LPA No. 245 of 2018, by which the Division Bench ofthe High Court has allowed the said appeal preferred by the respondentH

herein and has quashed and set aside the judgment and order dated02.04.2018 passed by the learned Single Judge of the High Court andconsequently has directed the appellant herein to grant the respondentherein-original appellant the pay scale and designation of a Section Officerwith effect from 05.03.1993 and the pay scale and designation of anExecutive Officer with effect from 05.03.2002 under the Time-BoundPromotion Scheme (hereinafter referred to as the TBPS) on notionalbasis since the respondent had already superannuated, the originalrespondent- 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 topay the arrears of salary and emoluments to the respondent, as revisedfor 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’ onterms and conditions mentioned in the order of appointment/letter dated26.02.1974. That, by the office memorandum dated 01.05.1976, therespondent was confirmed in the permanent post of ‘Electrician’ witheffect from 16.04.1976. That the respondent was also released theincrements from time to time. That a settlement dated 10.01.1984 wasreached between the appellant-Institute and its Employees’ Associationwith respect to time bound promotions/change to the next grade. Thesaid settlement was to take effect from 01.01.1984. According to theappellant, the said TBPS was applicable to only two categories ofemployees, namely, Peons/Chowkidars/Sweepers (Class IV) and LDCto Executive Officers Grade (Class III). In the said settlement, underClause 1(v) it was further provided that the decision in respect of casesnot falling under the two broad categories referred to hereinabove, e.g.Jamadar, Drivers, Gestetner Operators, Electricians, Electrical Foremanand Library Attendant will be taken up by the President. It appears thatthereafter and in light of Clause 1(v) of the memorandum of settlementdated 10.01.1984, a decision was taken by the President of the appellantInstitute on 25.02.1984, by which it was provided that Jamadar, Drivers,Gestetner Operators, Electricians etc., as mentioned in Clause 1(v) ofthe memorandum of settlement dated 10.01.1984 shall only be entitled toget the next grade. That thereafter, vide office memorandum dated13.03.1984, the respondent was informed that his basic pay was fixed atRs.370/- with effect from 01.01.1984. He was further informed with A

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Arespect to the next increment. According to the appellant, as per thesettlement dated 10.01.1984 and the subsequent decision of the Presidentdated 25.02.1984, the respondent was given the benefit of enhancementin the salary in the next grade. That thereafter vide office memorandumdated 08.07.1986, the appellant informed the respondent that on hiscompletion of 12 years of service on 04.03.1986, his pay scale has beenBrevised from 330-10-180-EB-12-500-EB-15-560 to the higher scale of425-15-500-EB-15-560-20-700-EB-25-800 with effect from 05.03.1986and that his basic pay has been fixed at Rs.425/- in that grade. He wasalso informed with respect to the next increment to fall due on 05.03.1987.It appears that thereafter upon acceptance of the recommendations ofCthe Fourth Pay Commission and in accordance with the option exercisedby the respondent, the pay scale of the respondent was revised toRs.1200-30-1560-EB-40-2040 with retrospective effect from 01.01.1986and that his pay in that grade was fixed at Rs.1320/-. It appears thatthereafter in the year 1987-88, the Employees’ Association raised certaindemands. With respect to the demands raised, a memorandum ofDsettlement dated 02.08.1988 was reached between the appellant Instituteand its Employees’ Association. It appears that, in terms of the aforesaidsettlement dated 02.08.1988, the time span provided in the TBPS asmentioned in the settlement dated 10.01.1984 came to be reduced. Itappears that thereafter the Employees’ Association raised severalEdemands in the year 1991. With respect to the fresh demands, amemorandum of settlement dated 15.06.1991 was reached. It appearsthat thereafter the respondent vide his letter dated 12.05.1995 made arequest for promotion under the TBPS provided under the settlementdated 02.08.1988 as well as the settlement dated 15.06.1991. Accordingto the respondent, he was entitled to get the promotion after expiry ofFseven years’ period and that his promotion became due on 05.03.1993.Pending such representation, vide office order dated 20.03.1996, therespondent was transferred to Diary/Dispatch Section. He was askedto look after the work of Diary/Dispatch Section. However, hisdesignation came to be continued as Electrician. That vide representationGdated 15.11.1999 the respondent requested the Secretary of the appellantInstitute for promoting him to the post of Section Officer. It was the caseof behalf of the respondent that he was appointed on 05.03.1974 and thathe was given the higher pay scale from time to time and that he was alsogiven the pay scale of Assistant and therefore he is entitled to promotionto the next promotional post i.e. Section Officer with retrospective effectH

from 05.03.1993. Thereafter, a number of representations were made.Thereafter, in the year 2004, the respondent was transferred from theDiary/Dispatch Section (Head Office) to HRD (Noida). In the orderdated 28.04.2004 also, the designation of the respondent was mentionedas Electrician. The prayer of the respondent to promote him to the postof Section Officer under the TBPS came to be rejected on the groundthat as per the settlement dated 10.01.1984 and, more particularly, Clause1(v) read with the decision of the President dated 25.02.1984, therespondent shall not be entitled to the promotion being an Electrician andshall only be entitled to the next grade which has been given to him. Thatvide office order dated 14.02.2005, the respondent was transferred fromNoida Office (Electrician) to Kanpur DCO (Electrician). The saidtransfer was opposed by the respondent. That thereafter the respondentfiled a Writ Petition (C) No. 8681 of 2005 before the High Court ofDelhi, inter alia, praying to grant him the higher scale and designation ofSection Officer and from Section Officer to the post of an ExecutiveOfficer. He also prayed to quash and set aside the transfer orders dated28.04.2004 and 14.02.2005. That, during pendency of the said petition,the respondent retired on attaining the age of superannuation. That bythe judgment and order dated 02.04.2018, the learned Single Judge of theHigh Court dismissed the aforesaid writ petition. That thereafter therespondent preferred the Letters Patent Appeal before the Division Benchof the High Court and by the impugned judgment and order, the DivisionBench of the High Court has allowed the said appeal and has quashedand set aside the judgment and order passed by the learned Single Judgeof the High Court and has directed the appellant to grant the respondentthe pay scale and designation of Section Officer with effect from05.03.1993 and the pay scale and designation of an Executive Officerwith effect from 05.03.2002 under the TBPS along with the arrears ofsalary and emoluments, as revised for those scales from time to time.

2.1 Feeling aggrieved and dissatisfied with the impugned judgmentand 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 hasvehemently submitted that the High Court has materially erred in directingthe appellant to promote the respondent to the post of Section Officerand designation of an Executive Officer under the TBPS. It is furthersubmitted by the learned counsel appearing on behalf of the appellant ABCD

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Athat the High Court has failed to appreciate and consider the fact that therespondent being Electrician was not entitled to the time-bound promotionin view of the settlement/agreement dated 01.10.1984 and, moreparticularly, Clause 1(v) and the decision of the President dated25.02.1984.B3.1 Learned counsel appearing for the appellant has furthersubmitted that in fact in the promotional channel there was no promotionfrom the post of Electrician to that of the Section Officer and thereforethere was no question of granting promotion to the respondent to the postof Section Officer under the TBPS. It is further submitted by the learnedcounsel appearing on behalf of the appellant that the High Court hasCmaterially erred in directing the appellant to promote the respondent tothe post of Section Officer under the TBPS relying and/or consideringthe subsequent settlements dated 02.08.1988 and 15.06.1991. It is furthersubmitted by the learned counsel appearing on behalf of the appellantthat the High Court has materially erred in observing that in the subsequentDsettlements dated 02.08.1988 and 15.06.1991 there was no specificexclusion, as provided in the earlier settlement dated 10.01.1984. It issubmitted that in the settlement dated 02.8.1988 it has been specificallyprovided that the earlier settlement dated 10.01.1984 shall be continuedand/or applicable. It is submitted that, in fact, by the subsequent settlementdated 02.08.1988, only the time gap was reduced. It is submitted thatEtherefore the case of the respondent was specifically covered by theearlier settlement dated 10.01.1984 and the subsequent decision of thePresident dated 25.02.1984 which was in terms of Clause 1(v) of thesaid settlement.

3.2 It is further submitted by the learned counsel appearing onFbehalf of the appellant that, as such, the respondent was entitled to onlythe next higher scale which was/were being paid to the respondent fromtime to time.

3.3 It is further submitted by the learned counsel appearing onbehalf of the appellant that merely because for some time the respondentGwas directed to look after the work in Diary/Dispatch Section as a SectionOfficer, it cannot be said that he was appointed/promoted as SectionOfficer. It is submitted that all throughout he was continued to be anElectrician and therefore, being an Electrician, he was not entitled to thetime-bound promotion.

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3.4 It is further submitted by the learned counsel appearing onbehalf of the appellant that the High Court has materially erred in notappreciating the fact that there was a clear distinction with regard to thepolicies applicable to the employees falling in Class-III and Class-IVcategories and other employees such as Jamadars, Electricians, Driversetc. who fall under a special category. It is further submitted that theemployees of the aforesaid category, including the Electricians, weresquarely excluded from the terms of the agreement dated 10.01.1984.It is submitted that therefore the Division Bench of the High Court hasmaterially erred in allowing the petition and in quashing and setting asidea 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 ofthe respondent that, in the facts and circumstances of the case, theDivision Bench of the High Court has not committed any error in directingthe appellant to grant promotion to the respondent under the TBPS.

4.2 It is further submitted by the learned counsel appearing onbehalf of the respondent that, as such, the order of the President dated25.02.1984 was not communicated to the respondent and therefore thesame was not binding to the respondent.

4.3 It is further submitted that, even otherwise, as rightly observedby the Division Bench of the High Court, in the subsequent settlementsdated 02.08.1988 and 15.06.1991, there was no specific exclusion withrespect to the post of Electrician, from granting the time bound promotions.

4.4 It is further submitted by the learned counsel appearing onbehalf of the respondent that, even subsequently, the respondent wasappointed as a Section Officer in the Diary/Dispatch Section andtherefore it cannot be said that the respondent continued to serve as anElectrician. It is submitted that even the respondent was also given thepay scale of Assistant with effect from 05.03.1996 and therefore wasentitled to promotion to the next post of Section Officer under the TBPS.

4.5 It is further submitted by the learned counsel appearing onbehalf of the respondent that if the submission/contention on behalf ofthe appellant is accepted, in that case, there will be stagnation and therespondent would never get any chance of promotion under the TBPS,which shall be against the policy of granting time bound promotion.

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[2020] 2 S.C.R.

A4.6 Making the above submissions, it is prayed to dismiss thepresent 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 withrespect to the promotion under the TBPS. An employee is entitled toBthe promotion under the TBPS only in accordance with the scheme andthe promotion to the next higher post is provided under the TBPS. It isto be noted that, in the present case, the terms and conditions of theservice of the employees of the appellant-ICAI were governed by thesettlements/agreements arrived at from time to time between ICAI andCits Employees’ Association. The first settlement/agreement was arrivedat 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. Itprovided 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-StenoTypist i.e. Rs.330-560 and so on. Under Clause 1(v) of the saidDsettlement/agreement, it was specifically provided that in respect of casesnot 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 includedthe cases of Jamadar, Driver and Electrician. The respondent was anElectrician and therefore he was governed under Clause 1(v) of theEsettlement dated 10.01.1984. In terms of Clause 1(v) of the settlement/agreement dated 10.10.1984 which was arrived at between ICAI andits Employees’ Association, the President of ICAI took a decision on25.02.1984, by which it was provided that Jamadars, Drivers, Electriciansetc., as mentioned in Clause 1(v) of the memorandum of settlementdated 10.01.1984, shall only be entitled to get the next grade. Accordingly,Fthe respondent herein was put in the pay scale of Rs.330-560 and hisbasic pay was fixed at Rs.370/- with retrospective effect from01.01.1984. At this stage, it is required to be noted that the said fixationwas in accordance with the decision taken by the President of ICAIdated 25.02.1984. That, thereafter the respondent was granted the nextGhigher 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 year1991. On a bare reading of the subsequent settlements dated 02.08.1988and 15.06.1991 it appears that only the time gap for promotion under theTBPS came to be reduced. According to the respondent, there was noH

such clarification/clause like Clause 1(v) of the settlement/agreementdated 10.01.1984 excluding the post of Jamadar, Electrician etc. in thesubsequent settlements dated 02.08.1988 and 15.06.1991 and thereforehe was entitled to promotion to the post of Assistant and thereafter tothe post of Section Officer. The High Court in paragraph 17 has acceptedthe same and has observed and held that in the subsequent settlementsdated 02.08.1988 and 15.06.1991 it was not clarified that such of thosewho had earlier been covered under Clause 1(v) of the settlement dated10.01.1984 and who had been granted the scale of an Assistant, wouldnot be entitled to any further time-bound promotion under the settlementdated 02.08.1988, or for that matter, of the further settlement dated15.06.1991 and therefore in the absence of any exclusion of such ofthose who had been granted the pay-scale of an Assistant, would beentitled to the next higher pay-scale of the Section Officer on completionof requisite years of service in terms of settlements dated 02.08.1988and 15.06.1991. However, the High Court has not properly consideredthe subsequent settlement dated 02.08.1988. The High Court hasabsolutely mis-read and mis-interpreted the settlement dated 02.08.1988when it has come to the conclusion, so stated in paragraph 17 of theimpugned judgment and order, that in the subsequent settlement dated02.08.1988 there is no specific exclusion which was there under thespecial Clause 1(v) of the settlement dated 10.01.1984. In thememorandum of settlement dated 02.08.1988, the only change was withrespect to the time gap for promotion under the TBPS as per the earliersettlement dated 10.01.1984 and the period for getting the promotionunder the TBPS came to be reduced. That was the only change/modification. In the memorandum of settlement dated 02.08.1988 ithas been specifically provided and so stated that except for and subjectto the changes made by the said settlement, namely, reduction of timeperiod for getting the promotion under the TBPS, all other terms andconditions relating to the TBPS, as contained in the settlement/agreementdated 10.01.1984, shall remain in force and be applicable during theperiod of the said agreement. By a subsequent settlement dated15.06.1991 the period was further reduced. Therefore, whatever wasstated/provided in the settlement/agreement dated 10.01.1984, moreparticularly, Clause 1(v) and the subsequent decision of the Presidentdated 25.02.1984 continued to be in operation. Therefore, thoseemployees like the respondent herein serving as Electricians etc. werenot entitled to any promotion under the TBPS, as contained in the A

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Asettlement/agreement dated 10.01.1984 and/or such subsequentmemorandum of settlements dated 02.08.1988 and 15.06.1991. Beingan Electrician, the respondent was already given the pay-scale of anAssistant as per the decision of the President dated 25.02.1984, whichwas as per Clause 1(v) of the memorandum of settlement dated10.01.1984. Therefore, the High Court has committed a grave error inBobserving and holding that the respondent shall be entitled to promotionunder the TBPS as per the memorandum of settlements dated 02.08.1988and 15.06.1991. At the cost of repetition, it is to be noted that theemployees of ICAI were governed by the memorandum of settlementdated 10.1.1984 so far as the time-bound promotion is concerned andCthe subsequent settlements dated 02.08.1988 and 15.06.1991 were incontinuation of the same. No new rights of promotion under the TBPSwere conferred under the memorandum of settlements dated 02.08.1988and 15.06.1991.

7. Now, so far as the submission on behalf of the respondent thatDsubsequently even the respondent was working as a Section Officerand, therefore, shall be entitled to promotion under the TBPS to the postof Section Officer is concerned, it is required to be noted that as suchthere was no specific order of promotion promoting the respondent tothe post of Section Officer. For some time, the respondent was directedto look after the work of Diary/Dispatch Section. However, hisEdesignation came to be continued as Electrician. Merely because anemployee is given a temporary charge to do a particular work of aparticular post, it cannot be said that in fact he has been promoted to thesaid post. At this stage, it is required to be noted that subsequently whenthe respondent was transferred in the year 2005 from Noida OfficeF(Electrician) to Kanpur DCO (Electrician), the respondent opposed thesaid transfer contending, inter alia, that there is no post of an Electricianat Kanpur and therefore he should be continued at Noida (Electrician).Therefore, even on 04.03.2005, the respondent himself claimed to bethe 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.GTherefore also, the High Court has committed a grave error in directingthe appellant to promote the respondent to the post of Section Officerunder the TBPS. However, at the same time, the respondent shall beentitled to the same salary of Section Officer for the period during whichhe worked as a Section Officer either on officiating basis and/or he wasHgiven the charge, if not paid so far.

8. Now, so far as the submission on behalf of the respondent thatif the respondent is not promoted to the post of Section Officer underthe TBPS, in that case, the object and purpose of providing the promotionunder the TBPS, namely, to remove the stagnation at the work placeshall be frustrated is concerned, it is true that the TBPS is intended toremove the stagnation at the work place. However, at the same time,one cannot lose sight of the fact that the promotion shall be governed asper the promotion scheme only. At no point of time, Clause 1(v) of themain settlement dated 10.01.1984 and the decision of the President dated25.02.1984 not providing any promotion under the TBPS so far asElectrician etc. are concerned, has been challenged. It is not that thereis a complete stagnation so far as the respondent is concerned. He hasbeen granted the next higher grade as per the decision of the Presidentdated 25.02.1984 which was as per Clause 1(v) of the main settlementdated 10.01.1984. It is to be noted that, being an employee and themember of the Employees’ Association, the settlement arrived at betweenthe management and its Employees’ Association was binding on therespondent.

9. In view of the above and for the reasons stated above, we areof the firm opinion that the impugned judgment and order passed byDivision Bench of the High Court directing the appellant to promote therespondent to the post of Assistant and thereafter to the post of SectionOfficer under the TBPS as per the memorandum of settlements dated02.08.1988 and 15.06.1991 cannot be sustained and the same deservesto be quashed and set aside. Accordingly, the impugned judgment andorder passed by the Division Bench of the High Court is quashed andset aside. However, it is observed and directed that the respondent shallbe entitled to the same salary which was being paid to the Section Officersfor the period during which he worked as a Section Officer either onofficiating basis and/or he was given the charge and the appellant isdirected to pay the same, if not paid so far. The appeal is allowedaccordingly. No costs.

Ankit Gyan

Appeal allowed.

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