Petitioner seeks a direction to the respondent to fix his scale of pay in the post Municipal Commissioner in which he posted and acted as Grade-III, Grade-II, lection grade, special grade to which he posted and acted and pay al I the arrears due him in view of the above refixation wit short time.

2. Petitioner was appointed as Municipal C missioner Grade III on 22.2.1990 and his vice was regularised on 15.3.1993. Subsequently he was posted in the promotion posts in the following grades as follows:

Grade III - On 14.2.1990 by N.O.Ms.No.163 M.A. & W.S. Department, posting petitioner at Kuzhithurai Municipality Grade-III Municipal Commissioner. Grade-I On 12.5.1995 by G.O. D.No. 142 MA & WS Department, posting the petitioner Theni Allinagaram Municipality as Grade­ Municipal Commissioner. Selection Grade- On 25.4.1997 by D.No.180 M.A. & W.S. Department, post­ petitioner at Rajapalayam Municipality as Grade-III Municipal Commissioner. Selection Grade - On 5.11.1997 by G.O.Ms.No.549 M.A. & W.S. Department, posting the petitioner at Rajapalayam Musicality as Grade-III Municipal Commissioner. Special Grade - On 13.8.2001 by G.O.Ms.No.563 M.A. & W.S. Department, posting the petitioner at Vellore Municipality which is special grade Municipality. Special Grade - On 19.7.2002 by G.O.D.No.288 M.A. & W.S. Department, post­ing the petitioner at Dindigul Municipality as Municipal Commissioner and he is continuing there.

3. The grievance of the petitioner is that even though he was given promotion as above by various orders right from 14.2.1990 to 19.7.2002, the salary for the period for which he worked in the promotional posts, was not id and he was paid only the salary of the Municipal Commissioner Grade-II. According to the petitioner, the scale of pay applicable to the promotional posts held by the petitioner are as follows:

Post - Municipality -Scale of pay

Municipal Commissioner - Grade-II - 5500-175-9000

Municipal Commissioner - Grade-I - 8000-275-13500

Municipal Commissioner - Senior Grade-II - 9100-275-14050

Municipal Commissioner - Special Grade-II - 10000-325-15200

The said salary difference having not been paid, petitioner has filed the original application before the Tribunal, which was subsequently transferred to this Court.

4. The learned counsel appearing for the petitioner cited the following decisions in support of the case of the petitioner:

Selvaraj v. Lt. Governor of Island, Port Blair, (1998) 4 S.C.C. 291 Secretary-Cum-Chief Engineer v. Hari Om Sharma, (1998) 5 S.C.C.87; Jaswant Singh v. Punjab Poultry Field Staff Association, (2002) 1 S.C.C. 261; Union of India v. Central Administrative Tribunal, (2004) 1, A.T.J. 24.

Relying upon the above decisions, the learned counsel argued that the petitioner is entitled to get salary for the periods he worked in the higher posts.

5. The learned Government Advocate appearing for the respondents submitted that the promotion was only temporary and in some of the orders of promotion there is a specific condition that on higher salary will be paid.

6. I have considered the rival submissions of the learned counsel appearing for the petitioner as well as the learned Government Advocate.

7. A perusal of the orders of promotion issued in G.O.Ms.No.163 dated 14.2.1990 discloses that there is no condition that higher salary will not be paid. Likewise, in all other Government Orders also, except G.O.Ms.No.563, dated 13.9.2001, there is no such condition. Only in G.O.Ms.No.563 dated 15.8.2001 there is a condition that higher salary will not be paid and shall not be claimed by the petitioner.

8. As rightly contended by the learned counsel for the petitioner, in the decision reported in Secretary-cum-Chief Engineer v. Hari Om Sharma, (1998) 5 S.C.C.87, in para.8 the Hon'ble Supreme Court held that such condition imposed by the Government is invalid and contrary to Sec.23 of the Indian Contract Act, 1872. For proper appreciation, para.8 is extracted hereunder:

"Learned counsel for the appellant a