TaxTMI 
TaxTMI 
2020 (1) TMI 936
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.... 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 furthe....
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....ect 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....
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....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 ....
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....e 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 o....
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.... 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) 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....
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....gh 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 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 p....