INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA Vs. J.R. WILLIAM SINGH
LAWS(SC)-2020-1-62
SUPREME COURT OF INDIA (FROM: DELHI)
Decided on January 24,2020

INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA Appellant
VERSUS
J.R. William Singh Respondents

JUDGEMENT

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 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 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 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 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 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 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 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 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 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, 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.

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