The deliberate misinterpretation of the Government Resolution and the discriminatory treatment towards the petitioner were unjust and against the law.

Abhilasha Kumari, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the issuance of an appropriate Writ, order or direction, to quash and set aside the order dated 12.09.2011, passed by the Commissioner, Bhavnagar Municipal Corporation (the respondent herein), whereby the benefit of the pay-scale of the next higher promotional post that had been granted to him with effect from 01.08.2005, has been withdrawn and recovery has been ordered to be effected.

2. The petitioner was appointed to the post of Sub-Auditor with effect from 01.06.1989 in the Audit Department of the respondent-Municipal Corporation. By an office order dated 18.01.1997, the petitioner was promoted to the next higher post of Senior Auditor in the pay-scale of Rs. 5500-9000 (old scale 1640-2900) with retrospective effect from 01.08.1996. The Government of Gujarat, through the Finance Department issued a Government Resolution dated 16.08.1994, introducing the Assured Career Progression Scheme called the 9-18-27 Scheme, under which an official is allowed the pay-scale of the next higher promotional post in the hierarchy of posts on completion of every 9, 18 or 27 years in service. The said Government Resolution was applicable to the employees of the State Government only and would not automatically apply to the respondent-Municipal Corporation. However, vide the order dated 19.02.2007, the respondent-Corporation adopted the said Government Resolution dated 16.08.1994, for the grant of the pay-scale of the next higher promotional post to its employees, as envisaged therein. The aforesaid order dated 19.02.2007 of the respondent-Municipal Corporation stipulates that such of those employees of the Corporation who have completed 9 years as on 01.01.2000, or thereafter, on one post, will be granted the benefit of the higher pay-scale of the next promotional post as per the Government Resolution dated 16.08.1994, on the same terms and conditions as stipulated therein.

2.1 In the hierarchy of posts in the Audit Department of the Bhavnagar Municipal Corporation, in which the petitioner was appointed, the next promotional post from the post of Senior Auditor in the pay-scale of Rs. 5500-9000, held by the petitioner, is the post of Deputy Chief Auditor, in the pay-scale of Rs. 8000-13500. The petitioner became Senior Auditor by promotion on 01.08.1996. At the relevant point of time, the petitioner was qualified and eligible to be considered for promotion to the next higher post of Deputy Chief Auditor. However, for want of vacancy in the cadre of Deputy Chief Auditor, the petitioner was stagnating on the post of Senior Auditor; therefore, in terms of the order dated 19.02.2007, the respondent-Municipal Corporation considered the petitioner for the grant of the pay-scale of the next promotional post. Accordingly, by an order dated 05.04.2007, the petitioner was granted the higher pay-scale of the post of Deputy Chief Auditor (the next promotional post), namely, Rs. 8000-13500, with effect from 01.08.2005, upon completion of 9 years on the post of Senior Auditor. The arrears of pay and allowances, as a result of the grant of the higher pay-scale with effect from 01.08.2005, were also paid to the petitioner. More than three years after the petitioner was given the benefit of the higher pay-scale of the next promotional post, in lieu of promotion, and after the fixation of pay under the 6th Central Pay Commission, the respondent-Municipal Corporation passed an order dated 28.10.2010, stating that the pay-scale of the employees which was upgraded to Rs. 8000-13500, was required to be corrected. It was further stated that those employees would now be entitled to the higher pay-scale of Rs. 6500-10500, instead of the pay-scale of the next promotional post i.e. Rs. 8000-13500. The said order also mentions that the recovery of the excess payment made from the date of the fixation of pay in the pay-scale of Rs. 8000-13