9911796707
TMI Blog2020 (1) TMI 936X X X X Extracts X X X X X X X X Extracts X X X X ..... d that if any LDC had already completed five years in the pay scale of ₹ 260400 he is to be placed in the pays cale of UDC Steno Typist i.e. ₹ 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 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. 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. Appeal allowed - de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ories 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 ₹ 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 330-10-180-EB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred 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 appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 promot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 pays cale 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 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 8. Now, so far as the submission on behalf of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
