JUDGMENT : 1. The petitioner by way of this petition filed under Article 226 of the Constitution of India has approached this Court with following prayers: (A) That this Hon’ble Court may be pleased to issue a writ of mandamus, or a writ in nature of mandamus, or any other appropriate writ, direction, or order under the Article 226 under the Constitution of India be pleased to quash and set aside the impugned decision dated : 21/09/2009 of respondent of reducing the pay of the petitioner, viz. revising the pay as per 27/6/2007 and not as per 21/11/2000; (B) That this Hon’ble Court may be pleased to issue a writ of mandamus, or a writ in the nature of mandamus, or any other appropriate writ, direction or order under article 226 of the Constitution of India, declaring the action of the respondents as illegal without affording opportunity to the petitioner and be pleased to declare that the petitioner is entitled to revision of his pay and all allied benefits as per 21/11/2000 and not as per 27/6/2007; (C) That this Hon’ble Court be pleased to direct the respondents to release the amount Rs.133375 being deducted from gratuity forthwith; (D) That pending the hearing and final disposal of this petition, the respondent authorities may be directed to refund the amount so deducted from the gratuity and revise the pay fixation of the petitioner as per the earlier fixation; (E) That this Hon’ble Court be pleased to direct the respondents to pay 18% interest on delay payments in releasing pension which has been withheld for 24 months; (F) Ad-interim ex-parte relief’s in terms of prayer clause C and D be granted to the petitioner. (G) The respondent be issued a mandatory order, commanding and compelling the respondents to pay to the petitioner, the costs of this petition and incidentals to the petition. (H) That petitioner may be granted such further and other relief or relief’s, as the nature and circumstances of the case may require. 2. Facts in brief, as could be culled out from the memo of petition, deserve to be set out as under; 2.1 The petitioner had joined the services as ‘Unarmed Police Constable’ under Valsad District Police on 01.02.1975 and remained in Valsad till 30.12.1975. 2. Facts in brief, as could be culled out from the memo of petition, deserve to be set out as under; 2.1 The petitioner had joined the services as ‘Unarmed Police Constable’ under Valsad District Police on 01.02.1975 and remained in Valsad till 30.12.1975. Thereafter, petitioner transferred to Bilimora and there he served till 20.06.1980 and again he transferred to rural Police Vansda and served in Vansda till 03.07.1981. Thereafter he again transferred to Valsad and there he served till 30.04.1985. Thereafter he transferred at DSP Office and served till 13.02.1987. 2.2 The petitioner on 14.02.1985 was promoted to the post of Head Police Constable and was deputed in prohibition department and served till 03.07.1991. On 04.07.1991, the petitioner was promoted to the post of A.S.I. first grade, and worked in Superintendent Office Valsad till 31.03.1994. Thereafter by inter-transfer, the petitioner served in the office at ACB Valsad as ASI till 31.12.2007. 2.3 As per the Government Resolution dated 16.08.1994, petitioner was entitled to 1st higher pay scale on completion of 9 years in the said grade and the same was granted and the pay of the petitioner was revised from 4000-100-6000 to 5500-175-9000 and accordingly the same was fixed at Rs.5675/-. The said effect was given in the service book of the petitioner and was duly approved by Local Fund. 2.4 The Home Department issued a letter dated 27.01.2006 to the Director General of Police to fix pay in accordance with rules. Accordingly, on 27.06.2007, the departmental exams were conducted and the petitioner was declared passed. Hence, the petitioner attained all necessary qualification which may be necessary for the purpose of availing the higher pay on completion of 9 years. The petitioner was finally transferred to Valsad D.S.P. Office in Radar Department as ASI and there he opted for voluntary retirement. As per the last Pay Certificate, on the date of his retirement, the petitioner was receiving Rs.6725/- as basic salary. In light of the last pay, the papers were forwarded to respondent no.4 for verification and fixation of pension, however, the papers were returned back with queries, wherein the respondent vide letter dated 24/25.11.2008 clarified the case of the petitioner and further requested to consider the case of petitioner since the departmental exams were taken first time in 2006, the petitioner was not at fault and further requested to consider the case of the petitioner. 2.5 The petitioner was served with impugned order passed by respondent no.3, cancelling his earlier pay fixation and confirming his first higher grade pay from 27.06.2007 i.e. the date of passing the departmental examination. The petitioner’s pension papers were not processed and thereafter the petitioner compelled to give consent to deduct the amount of Rs.1,33,375/- from gratuity, which was deducted vide challan dated 15.07.2010 and thereafter the pension papers of the petitioner were processed. The petitioner was again placed to the pay of Rs.5675/-, as the petitioner has cleared departmental exam on 27.06.2007, and pensionery benefits were fixed as per Rs.5675/- and not Rs.6725/- being last pay of the petitioner on account of misinterpretation of the government resolution. The petitioner was paid gratuity at only 6% interest on remaining sum. Hence, the present petition. 3. Learned advocate appearing for the petitioner submitted that there is gross violation of Article 14 of the Constitution of India, as no opportunity was given to the petitioner while issuing the impugned order of cancelling the earlier higher pay fixation and reduction thereafter. 4. Learned advocate for the petitioner further submitted that the same office issued a letter of consideration for higher pay fixation for the petitioner with regard to the fact that the petitioner was not at fault, since for the first time the said exam was held in June 2007 and he was declared passed, however, simply relying on the version without entering into the merits of the case of the petitioner, the respondent no.3 passed an order of reduction of higher pay. The said fact itself demonstrates that the case of the petitioner is not properly appreciated. 5. Learned advocate for the petitioner further submitted that the petitioner was given 1st higher pay on completion of 9 years of service on 15.11.2001. Thereafter, after almost 6 years the respondent no.1 clarified to the respondent nos.3 and 4 regarding the fact that departmental exam is necessary, over and above also admitted the fact that such revision has been granted. Under that circumstances the respondents were stopped from raising the plea that after the date of passing the departmental exam the petitioner was entitled to higher pay and that too without hearing the petitioner on the said aspect. 6. Learned advocate for the petitioner further submitted that till 2007 the respondents also did not realize that departmental exams were inevitable. Under that circumstances the respondents were stopped from raising the plea that after the date of passing the departmental exam the petitioner was entitled to higher pay and that too without hearing the petitioner on the said aspect. 6. Learned advocate for the petitioner further submitted that till 2007 the respondents also did not realize that departmental exams were inevitable. It was only after the communication of the Home Department that too after granting the first higher grade pay scale, the respondent no.3 organized the departmental exam and petitioner cleared the same in first attempt. Hence, under that circumstances, the penal action of reducing the pay is nothing but total non application of mind on the part of the respondents. 7. Learned advocate appearing for the petitioner further submitted that considering the letter dated 30.08.1993 of the DGP, the pay was revised and approved by local fund and entry into the same was made in the service book of the petitioner. 8. Learned advocate for the petitioner further submitted that it was incumbent on the part of the respondents to consider the case of the petitioner and further not to demand for the amount already paid. 9. Learned advocate for the petitioner further submitted that the DSP Valsad vide letter dated 24/25.11.2008 admitted the fact that no departmental exams were conducted till 2006 and further clarified that there was no fault of the petitioner and his case may be considered. He further submitted that DSP, Valsad written a letter dated 13.03.2009 to the DGP for withdrawal of the recovery process. Thereafter, on 15.12.2009, the petitioner was served with the impugned order. 10. Learned advocate appearing for the petitioner relying upon the judgment in case of State of Punjab And Others Vs. Rafiq Masih (White Washer) And Others, reported in (2015) 4 SCC 334 , submitted that the petitioner falls in third criteria since the benefit of revision was extended for more than five years. 11. Learned advocate appearing for the petitioner further relied upon the judgment in case of Maheshkumar L.Thaker Vs. State of Gujarat and Ors., reported in 2016 (1) G.L.H. 246 , and special emphasis was laid in paragraph nos.15, 17, 18, 20 and 21. 12. Learned AGP appearing for the respondents submitted that decision dated 21.09.2009 is just and proper. 11. Learned advocate appearing for the petitioner further relied upon the judgment in case of Maheshkumar L.Thaker Vs. State of Gujarat and Ors., reported in 2016 (1) G.L.H. 246 , and special emphasis was laid in paragraph nos.15, 17, 18, 20 and 21. 12. Learned AGP appearing for the respondents submitted that decision dated 21.09.2009 is just and proper. The petitioner is not entitled to the pay scale as per condition no.3(5) of the Government Resolution dated 16.08.1994 wherein it is specifically mentioned that for appropriate pay scale, the delinquent will have to pass the departmental examination and as per the letter of Home Department dated 27.01.2006 for higher pay scale of PSI, the ASI is required to pass examination as per Gujarat Police Manual Part-I, Rule 165 for promotion as Unarmed ASI. He is required to pass the departmental examination and relevant clarification is also made by Home Department by its letter dated 23.05.2006 as well as letters dated 23.03.2007 and 16.11.2009. 13. Learned AGP further submitted that as per letter dated 28.05.2009 by Additional Director General of Police, Surat which refers that those employees who have not passed the departmental examination and being given the higher pay scale of PSI, their promotions are required to be cancelled and they are required to be posted in their original pay scale. Therefore, the petitioner was required to pass the departmental examination at the relevant point of time and he was granted the promotion of PSI. However, petitioner has not passed the departmental examination at the relevant point of time and petitioner has cleared the departmental examination on 27.06.2007 from Surat Center and therefore, the petitioner was entitled to the higher pay scale from 27.06.2007 only and therefore, the appropriate order is passed on 21.09.2009. Therefore, petitioner is not entitled to the relief as prayed for and petition deserves to be dismissed. 14. The petitioner has filed this petition essentially for seeking restoration of the higher pay scale granted to him, which came to be later on withdrawn on account of his not passing the departmental examination, as required under the Rules and Government Resolution dated 16.8.1994, which has resulted into reduction of his retiral benefits and the deduction from the gratuity amount to the tune of Rs.1,33,375/-. 15. 15. It cannot be disputed that the Government Resolution dated 16.8.1994 replaced the Government Resolution of the year 1991, which was for stagnation removal measures and the scheme provided that the eligible officer who could not have been promoted on account of their being lack of vacancy despite their being eligible to be promoted, may not stagnate on the scale and demoralized, the higher pay scale of the next promotional post was made available to them and they were to be regularized as and when the actual promotion is effected. The fact also cannot be disputed that as per condition no.3(5), the eligibility included passing of departmental examination, if any for the promotion to the higher post. The pay of the petitioner was revised from Rs.4000-100-6000 to Rs.5500-175-9000 and accordingly was fixed at the basic of Rs.5675/- as he had completed 9 years of service in that scale. The said effect was given in the service book of the petitioner after the same being duly approved by the local funds. The fact remains to be noted that in the unarmed constable, the departmental examination appears to have been ignored by all the concerned as the same had never been conducted till the concerned in the department realized the same and letter came to be issued for conducting the examination. As a result thereof the departmental examination was conducted and petitioner cleared the same on the first instance on 27.6.2007. The petitioner thus attained the eligibility for being promoted or for getting the higher pay scale subsequently but at the first instance when departmental examination came to be conduced for the first time after gap of years and hence the petitioner ought to have continued with revision of pay scale which was granted to him on account of completion of 9 years of service. The petitioner when retired on voluntary retirement basis was receiving basic salary of Rs.6725/-. This salary was also reflected in the last drawn salary certificate also. The petitioner when retired on voluntary retirement basis was receiving basic salary of Rs.6725/-. This salary was also reflected in the last drawn salary certificate also. As per prevailing service rules and pension rules, the said basic ought to have been taken into consideration, however, it was realised that the requirement of passing the departmental examination for receiving higher pay scale had not been fulfilled by the petitioner when higher pay scale was granted, the same was refused without hearing the petitioner, resulting into reducing the petitioner from Rs.6725 to Rs.5675/- and on that basis the deduction in the gratuity amount was effected and recovered. This entire exercise was without affording an opportunity to the petitioner of being heard and was in violation of principles of natural justice. It was also not in consonance with the principles enunciated by the Supreme Court in case of State of Punjab And Others Vs. Rafiq Masih (White Washer) And Others, reported in (2015) 4 SCC 334 . 16. The fine question that cropt up for consideration is whether the respondents were justified in effecting revision without hearing the petitioner and on that basis effecting reduction in his retiral dues, the answer is in emphatically 'NO' for the following reasons namely- (a) The entire exercise smacked on following the principle of natural justice as the respondents could not establish any opportunity of being heard to the petitioner while effecting the revision and reducing the pay scale. (b) The fact remains to be noted that even as per the Government Resolution dated 16.8.1994, the condition provided for fulfillment of eligibility criteria for the promotional post included passing of departmental examination also, but the peculiar facts as have come on record and as respondents could not dispute or refute would indicate that all alone for the years, no departmental examination was conducted and promotion were effected without insistence of passing of the departmental examination, in that situation, the allowing of higher pay scale to the petitioner on he being otherwise eligible and on account of the fact that when for the first time departmental examination was conducted, the petitioner passed in the first instance, would justify his claim for relating it back to the date when the petitioner was granted the pay scale on the strength of Government Resolution. The requirement of principles of natural justice and fair play also would weigh in favour of the petitioner. The petitioner cannot be held to be at in any fault for receiving the higher pay scale as no departmental examination was conducted and promotion were effected without insistence of passing of the departmental examination, in that situation, the allowing of higher pay scale to the petitioner on he being otherwise eligible and on account of the fact that when for the first time departmental examination was conducted, the petitioner passed in the first instance, would justify his claim for relating it back to the date when the petitioner was granted the pay scale on the strength of Government Resolution. 17. This Court is therefore of the considered view that the petition deserves to be allowed and is allowed accordingly. The petitioner is required to be treated as having correctly receiving the higher pay scale and when the petitioner passed the departmental examination, it was more justified on his part to receive the same. Moreover, as cited hereinabove, the Supreme Court in case of State of Punjab And Others Vs. Rafiq Masih (White Washer) And Others, reported in (2015) 4 SCC 334 , the Court has clearly observed that recovery of such a nature is not required to be effected, when the employee is not at fault for receiving the higher pay scale. 18. In the result, the impugned order i.e. order dated 21.9.2009 passed by the respondent is hereby quashed and set aside. The respondents are directed to restore the pay scale of petitioner and reconsider the entire matter as if there was no reduction in the pay scale and reckon the retiral benefits and refund the gratuity amount with interest at the rate of 9% p.a. from the date of deduction till the same is repaid. The pension is also therefore accordingly required to be revised on the last drawn wage, which was the wage without effecting the reduction, the same shall also revise accordingly. Rule is made absolute to aforesaid extent. There shall be no order as to costs.