JUDGMENT : A.S. Supehia, J. 1. In the present writ petition, the petitioner has prayed for quashing and setting aside the impugned orders dated 30.06.2012 and 06.07.2012, wherein and whereby the higher pay-scale granted to the petitioner has been reduced and re-fixed simultaneously, further the petitioner has also prayed for quashing and setting aside the notice dated 11.07.2012. 2. The brief facts giving rise to filing of the present petition are that:- 3. The petitioner had initially joined the service with the Gujarat Electricity Board, now known as Paschim Gujarat Vij Company Limited, respondent No. 1 herein, as Helper in the year 1978 in the pay-scale of Rs. 240-370. Thereafter, the petitioner was appointed as Meter Tester in the pay-scale of Rs. 290-733 on 25.04.1986 and posted at Savarkundla. 4. The petitioner was then granted the alternative higher grade of Rs. 1050-2720 w.e.f. 26.04.1990, vide order dated 16.08.1990 as per the General Standing Order No. 43 dated 02.11.1961. 5. On 26.03.1993, an Office Order was passed by the Authorities promoting the petitioner from the Meter Tester, Grade-II to the post of Meter Inspector in the pay-scale of Rs. 1180-3050 and was posted at Botad Division. Since the petitioner was posted at Botad Division, he made a request to the Authorities on 04.04.1993, inter alia, requesting that due to his family circumstances, he is unable to join the duty at Botad, so he may be posted at Bhavnagar Division or his promotion order may be cancelled. 6. On 02.04.1994, the Authorities had passed an Office Order granting the alternative higher grade of the cadre of Meter Tester, Grade-I of Rs. 1180-3050 to the petitioner w.e.f. 26.04.1993 along with other employees, as per the General Standing Order No. 43. It is most pertinent to point out that the posts of the Meter Inspector as well as Meter Tester, Grade-I carry the same pay-scale of Rs. 1180-3050. On 18.04.1994, consequential pay fixation order was passed by the Authorities fixing the pay-scale of the petitioner of Rs. 1180-3050. 7. The petitioner made an oral request for promotion in the cadre of Meter Inspector, which was rejected by the Authorities on 12.07.2001 on the ground that the petitioner is already given the pay-scale of Meter Tester, Grade-I and since both the posts i.e. Meter Inspector and Meter Tester, Grade-I carry the same pay-scale, promotion cannot be given as Meter Inspector. The petitioner made an oral request for promotion in the cadre of Meter Inspector, which was rejected by the Authorities on 12.07.2001 on the ground that the petitioner is already given the pay-scale of Meter Tester, Grade-I and since both the posts i.e. Meter Inspector and Meter Tester, Grade-I carry the same pay-scale, promotion cannot be given as Meter Inspector. Thereafter, the petitioner was granted the 1st higher pay-scale of Rs. 5000-10525 w.e.f. 26.04.2002, vide order dated 08.07.2003. Subsequently, the Authorities had reviewed all the cases of the higher grade scale in view of their General Standing Order No. 334 dated 29.07.2004, which included the case of the petitioner also and accordingly, the petitioner was granted 1st higher grade scale of Rs. 1440-3440 from 26.04.1995, vide Office Order dated 27.12.2004. Consequential pay fixation was done by the Authorities vide Office Order dated 04.01.2005 and fixed the pay of the petitioner in the revised scale of Rs. 5000-10525 w.e.f. 01.01.1996. 8. On 08.02.2006, another Office Order was passed granting the 2nd higher pay-scale to the petitioner of Rs. 6500-11750 from 26.04.2005 as per General Standing Order No. 334. Thereafter, consequential pay fixation order was also passed in the case of the petitioner on 18.02.2006. 9. Subsequently, the petitioner was promoted/absorbed as Senior Technician (Laboratory) and was posted at Palitana Division, vide order dated 25.01.2008. On 19.07.2008, as per the directions given by the Corporate Office, an Office Order was passed by the Authorities, whereby the pay-scale of Rs. 6500-11750 granted to the petitioner vide order dated 08.02.2006 came to be withdrawn and also ordered recovery on the ground that he was not fulfilling the requisite criteria for getting that pay-scale. By the said order, pay of the petitioner was reduced to Rs. 5000-10525 and recovery was made from the salary of the petitioner in installments. Against that action, the petitioner made a representation to the Authorities on 24.07.2008. Thereafter, the Circle Office had passed another order on 06.12.2008 as per the instructions of the Corporate Office dated 17.10.2008, by which the above order of withdrawal of the pay-scale came to be cancelled and pay of the petitioner was restored. 10. The Authorities, after obtaining necessary approval from the higher Authorities, passed an Office Order on 30.06.2012, by virtue of which, the 1st and 2nd higher pay-scales granted to the petitioner are withdrawn and ordered recovery from the petitioner. 10. The Authorities, after obtaining necessary approval from the higher Authorities, passed an Office Order on 30.06.2012, by virtue of which, the 1st and 2nd higher pay-scales granted to the petitioner are withdrawn and ordered recovery from the petitioner. It is stated that the said order is passed in violation of the principles of natural justice as the petitioner was neither given any opportunity of hearing nor any show-cause notice was issued prior to withdrawal of the higher grade scale and consequential pay fixation order was also passed on 06.07.2012. It is mentioned in the notice that out of total amount of recovery of Rs. 3,59,550/- amount of Rs. 59,550/- will be recovered in three equal installments of Rs. 19,850/- and rest of the amount of Rs. 3,00,000/- will be adjusted from the retirement dues of the petitioner. After issuing the order dated 30.06.2012 and vide communication dated 16.07.2012, the petitioner is intimated that if he has any objection against this or want any information, he may approach the Authorities, otherwise action will be taken for recovery of amount. 11. Thereafter, the petitioner made a detailed representation to the Authorities on 21.07.2012. Pursuant to the representation of the petitioner, the Executive Engineer has written a letter to the petitioner on 24.07.2012, inter alia, intimating the petitioner that recovery will be made in three installments of Rs. 10,000/- instead of Rs. 19,850/- from the salary and rest of the amount will be adjusted from the retirement dues of the petitioner. Against that also, the petitioner made a representation on 26.07.2012 requesting not to make recovery as the benefit of the higher grade scale was rightly granted and even otherwise he is not given any opportunity before passing the orders. 12. Learned Advocate Ms. Harshal Pandya appearing on behalf of the petitioner has submitted that the respondent Authorities have misconstrued General Standing Order No. 334 pursuant to which higher pay-scale of the petitioner has been withdrawn. She has submitted that the petitioner was already granted the higher pay-scale w.e.f. 26.04.1995 and by the impugned order the higher pay-scale has been re-fixed w.e.f. 26.03.2002 in the pay-scale of Rs. 5000-10525. 13. She has submitted that as such the General Standing Order No. 334, will not apply in the case of the petitioner since the same would apply to those employees who have refused the promotion after the date of issuance of the same. 5000-10525. 13. She has submitted that as such the General Standing Order No. 334, will not apply in the case of the petitioner since the same would apply to those employees who have refused the promotion after the date of issuance of the same. She has referred to Paragraph No. 10 of the aforesaid General Standing Order, which states that if an employee would refuse promotion on becoming due, he shall not be entitled to the higher pay-scale, whereas in the present case, the petitioner has become due for the higher pay-scale after he had refused for promotion in the year 1993. She has submitted that the petitioner thereafter became eligible and he was granted the 1st higher pay-scale of Rs. 1440-3440 from 26.04.1995, vide Office Order dated 27.12.2004. The present General Standing Order issued in the year 2004 will not apply in the present case. She has further contended that vide order dated 02.04.1994, in fact the petitioner has been placed in the promotional pay-scale of Rs. 1180-3050 of Meter Inspector w.e.f. 26.04.1993 and hence, refusal of his promotion on 04.04.1993 would have not effected since the petitioner has been already granted the pay-scale of Rs. 1180-3050 which is equivalent to the promotional pay-scale of the Meter Inspector. She has invited attention of this Court to the order dated 27.12.2004 granting the higher pay-scale, wherein it is stated that an undertaking is required to be given by an employee that on refusal to normal promotion, the concerned employee will be reverted to his original pay scale and the higher pay scale shall be forfeited. Thus, she has submitted that the undertaking as envisaged in the order dated 27.12.2004 of forfeiting the higher pay scale will apply to those cases where an employee refuses promotion in future and not to those cases where promotion is already refused. 14. Learned Advocate Ms. Harshal Pandya has also submitted that by the letter dated 12.07.2001, when the petitioner had asked for promotion of Meter Inspector, it was refused by the respondent Authority by showing that since he is already granted the pay-scale of promotional post of the Meter Inspector, he is not entitled to the promotion of the Meter Inspector. She has also referred to Paragraph No. 9 of General Standing Order No. 334 "qualifications", for various posts laid down by the respondent Board. She has also referred to Paragraph No. 9 of General Standing Order No. 334 "qualifications", for various posts laid down by the respondent Board. She has submitted that as per the general standing order the promotional post of the Meter Tester is Meter Inspector and the pay-scale of Meter Tester is equivalent to the Meter Inspector and hence, refusal of the petitioner to the promotional post of the Meter Inspector would have no bearing on her fixation of the higher pay-scale. In this view of the matter, she has submitted that the impugned orders are required to be quashed and set aside and the order dated 27.12.2004 is required to be restored. 15. Per contra, learned Advocate Mr. Dipak Dave appearing for the respondent Authorities has submitted that the first higher pay-scale of the petitioner is rightly fixed w.e.f. 26.03.2002 in the pay-scale of Rs. 5000-10525 and 2nd higher grade scale w.e.f. 26.03.2012 in the pay-scale of Rs. 17300-38610. 16. On the instructions of the Officer who is present in the Court, he has fairly conceded that so far as the contention raised in the affidavit-in-reply apropos denial of the benefits of 2nd higher pay-scale to the petitioner on the ground of educational qualification is concerned the same is not pressed since it will not be relevant for deciding the issue raised in the present writ petition. 17. Learned Advocate Mr. Dipak Dave has submitted that prior to issuance of General Standing Order No. 334, the respondent Authority had also issued General Standing Order No. 247 on 22.10.1973 clarifying the scheme of the higher grade and promotion. He has submitted that there was similar condition as envisaged in the aforesaid General Standing Order No. 334, wherein it was specifically mentioned that the employee who refuses promotion will not get benefits of circular and he shall stand reverted in the original lower grade. It is also contended that subsequently the scheme was modified vide Circular No. 578 but the condition envisaged in the earlier circular remained same. Thus, learned Advocate Mr. Dave has submitted that right from the inception of the scheme of higher pay scale the aforesaid clause/condition of forfeiting the higher pay-scale has been incorporated and the same is also followed in the General Standing Order No. 334, hence the petitioner has been correctly granted the higher pay scale from 2002 instead of 1995. 18. In response, Ms. Dave has submitted that right from the inception of the scheme of higher pay scale the aforesaid clause/condition of forfeiting the higher pay-scale has been incorporated and the same is also followed in the General Standing Order No. 334, hence the petitioner has been correctly granted the higher pay scale from 2002 instead of 1995. 18. In response, Ms. Pandya has submitted that the order placing the petitioner in the pay-scale of Rs. 1180-3050 w.e.f. 26.03.1993, the same is not disturbed, and the higher pay-scale is to be given from the initial date of joining. In support of her contention, she has placed reliance on Paragraph No. 8 of General Standing Order No. 334 wherein it has been specifically stated that if an employee who has availed benefit of the pay-scale of the higher post to which he is working, then the higher pay-scale is to be granted after completion of nine years from initial date of joining the service and not from the date he has been granted such pay-scale. In view of the aforesaid submissions, she has urged that the impugned orders are liable to quashed and set aside. 19. I have given my thoughtful consideration to the submissions advances by the learned Advocates for the respective parties to the lis. 20. The short controversy involved in the present writ petition is that whether the refusal of promotion by the petitioner to the post of Meter Inspector in the year 1993 can impact the higher pay scale granted in the year 2004 considering the General Standing Order issued in 2004. The pay scales and corresponding posts of the petitioner are summarized below:- Sr. No. Post Pay-scale Date of grant 1 Helper 240-370 1978 2 Meter Tester, Gr-II 290-733 25.04.1986 3 Meter Inspector (promotion-refused) 1180-3050 26.03.1993 (not effected) 4 Meter Tester, Gr-I (not promotion) 1180-3050 (alternative higher) 26.04.1993 5 1st HGS 1440-3440 26.04.1995 6 Revision of Pay 5000-10525 01/01/96 7 2nd HGS 6500-11750 26.04.2005 8 Senior Technician (promotion/absorption) Without benefit 25.01.2008 21. The undisputed facts are enumerated as under:- (a) The petitioner has refused promotion to the post of Meter Inspector on 26.03.1993. The pay-scale of the Meter Inspector is Rs. 1180-3050. (b) The petitioner was placed in the post of Meter Tester Grade-I equivalent to the pay scale of Meter Inspector i.e. Rs. 1180-3050 on 26.04.1993 after one month of his refusal. The pay-scale of the Meter Inspector is Rs. 1180-3050. (b) The petitioner was placed in the post of Meter Tester Grade-I equivalent to the pay scale of Meter Inspector i.e. Rs. 1180-3050 on 26.04.1993 after one month of his refusal. (c) The petitioner was initially granted the first higher pay scale w.e.f. 25.04.1995 vide order dated 27.12.2004. His name figures at Sr. No. 14. (d) The impugned orders are passed on the basis of General Standing Order No. 334 dated 29.07.2004. Thus, this Court has to examine whether the provision of General Standing Order No. 334, more particularly Clause-10 thereof, would apply in the case of the petitioner or not. 22. Clause-10 of General Standing Order No. 334 speaks of granting benefits of the higher grade scale and also mentions about furnishing undertaking by an employee as per Annexure-1 appended to the GSO, which speaks of reversion to the original pay scale if an employee refuses promotion. 23. Clause-10 of General Standing Order reads as under:- "Form & understanding: Each employee who avails the benefit of the higher grade scale under this scheme shall have to given an undertaking in writing as per Annexure-I appended to this GSO that he shall not refuse the regular promotion as and when it becomes due. This is because this scheme is intended to benefit those who are stagnating beyond a period of 9/19/30 years and it cannot be extended to those who have relinquished promotion for any reason. The undertaking may also state that if for any reason he declines the promotion when it becomes due, he shall forfeit the benefit under this scheme and shall stand reverted in the original lower grade from the date of promotion order and shall draw pay which he would have drawn had he not been given the benefit of the higher grade scale under this scheme. There will, however, be no recovery on account of reversion of employee to his original lower grad for the period which he has drawn the pay and allowances in higher grade scale till the date of withdrawal of higher grade. It would not be necessary for Board to inform about completion of 9/19/30 years. The Form & undertaking in this regard is annexed herewith as Annexure-1." 24. It would not be necessary for Board to inform about completion of 9/19/30 years. The Form & undertaking in this regard is annexed herewith as Annexure-1." 24. Accordingly, the order dated 27.12.2004 granting the higher pay-scale to the petitioner w.e.f. 26.04.1995 also bears the same condition which is reproduced hereunder:- "Further. On refusal to normal promotion or higher grade absorption to the post of which higher grade is granted, the concerned will be reverted to his original pay-scale as per the undertaking given by the above employees and their higher grade will be forfeited." 25. Accordingly, the petitioner had also furnished such undertaking. Thus, a conjoint reading of Clause-10 of General Standing Order No. 334 dated 29.7.2004 and the condition in the order dated 27.12.2004 will clarify that any promotion which becomes due after issuance of such order and if an employee refuses such promotion then in view the undertaking; his higher grade shall be forfeited. The General Standing Order No. 334 and order dated 27.12.2004 manifests the undertaking, which is to be given for a future promotion and not for any promotion which has been refused in past. Both Clause-10 and the condition in the order dated 27.12.2004 envisage refusal of the promotion which becomes due in future i.e. after an employee is granted higher pay scale and does not in any manner indicate refusal of promotion in past. The petitioner has refused promotion in the year 1993, whereas the General Standing Order No. 334 and order granting the higher pay scale is passed in the year 2004. The impugned orders neither refer to the GSO dated 22.10.1973 nor to the establishment Circular No. 578 dated 18.04.1993, which are produced by the learned Advocate during the course of hearing. If the petitioner is granted the higher pay scale pursuant to the General Standing Order No. 334 dated 29.07.2004, the same cannot be cancelled for refusal of promotion in the year 1993 citing the GSO No. 247 issued in 1973 and Circular No. 578 incorporating the undertakings envisaged therein. The petitioner had given the undertaking pursuant to the General Standing Order No. 334 dated 29.07.2004 for refusal of promotion in future. The undertaking envisaged in the General Standing Order No. 334 dated 29.07.2004 will be binding to the petitioner in case he refuses promotion in future. The petitioner had given the undertaking pursuant to the General Standing Order No. 334 dated 29.07.2004 for refusal of promotion in future. The undertaking envisaged in the General Standing Order No. 334 dated 29.07.2004 will be binding to the petitioner in case he refuses promotion in future. The petitioner could not have foreseen the consequences or effect of his refusal of promotion in the year 1993. Hence, reliance placed on General Standing Order No. 247 dated 22.10.1973 and Circular dated 08.04.1993 by the learned Advocate for the respondent is misconceived since neither the order dated 27.12.2004 granting the higher pay-scale to the petitioner nor the impugned orders re-fixing and reducing the higher pay-scale refer to the same. It is settled law that the respondents cannot improve their case by relying upon the new material which is not referred to in the impugned orders. 26. One more aspect which necessitates observation is that whether the refusal of the promotion by the petitioner prior to his entitlement of the higher pay-scale can be considered fatal to him. The established fact is that the petitioner has refused the promotion of the Meter Inspector having pay-scale of Rs. 1180-3050 in the year 1993. The petitioner became entitled to first higher pay scale in the w.e.f. 26.04.1995. Thus, he has refused promotion before he became entitled to higher pay scale. Thereafter, he was placed in the same pay scale of Rs. 1180-3050 of the Meter Inspector w.e.f. 26.04.1993 i.e. after a period of one month. The letter dated 12.07.2001 written by the respondent Authority to the petitioner specifically mentions the fact that since he is already placed in the pay-scale of the Meter Inspector, hence, he cannot be granted further promotion. Thus, the petitioner was already granted the promotional pay-scale of Rs. 1180-3050 w.e.f. 26.04.1993 and he became entitled to first higher pay scale w.e.f. 25.04.1995, which is subsequent to his refusal of promotion and grant of promotional pay-scale of Rs. 1180-3050. Hence, his prior refusal of promotion to the post of Meter Inspector obliterates its subsequent effect on the higher pay-scale. Thus, the impugned orders suffer from non-application of mind on the aspects observed herein above and cannot be sustained. 27. The petitioner has already retired on 30.09.2012 and amount of Rs. 1180-3050. Hence, his prior refusal of promotion to the post of Meter Inspector obliterates its subsequent effect on the higher pay-scale. Thus, the impugned orders suffer from non-application of mind on the aspects observed herein above and cannot be sustained. 27. The petitioner has already retired on 30.09.2012 and amount of Rs. 3,49,550/- towards recovery of leave encasement is deposited to the Registry pursuant to the order dated 20.09.2012 passed in Civil Application No. 10894 of 2012. In the light of foregoing observation and afore-noted facts, the impugned orders are hereby quashed and set aside. The respondent Authority is hereby directed to restore the orders dated 27.12.2004 and 08.02.2006 granting the 1st and 2nd higher pay-scales to the petitioner. Appropriate order restoring the pay-scale and grant of the higher pay-scale as envisaged in the aforesaid orders shall be passed within a period of 08 (eight) weeks from the date of receipt of this order. The amount which is deposited pursuant to the order passed in Civil Application No. 10894 of 2012 by this Court shall be paid to the petitioner with accrued interest after due verification. 1. In the light of the aforesaid directions and observations, the present writ petition is allowed. RULE is made absolute to the aforesaid extent.