JUDGMENT : Vaibhavi D. Nanavati, J. 1. Heard Ms. Niyati V. Vaishnav, learned advocate appearing for the petitioner and Mr. H.S. Munshaw, learned advocate appearing for the respondent no.1- Board. 2. By way of the present petition, petitioner herein has prayed for the following reliefs: “(A) Your Lordships may be pleased to issue appropriate writ, order or direction under Article 226 of the Constitution and be pleased to quash and set aside the impugned letter dated 27.05.2015 (Ann. P) and be pleased to issue directions to the respondents to consider and to grant 2nd higher grade to the petitioner and accordingly to grant consequential relief of arrears of pay etc. to the petitioner. (B) Your Lordships be pleased to issue direction to Res. No. 1 Board to consider the case of the petitioner for granting pay scale of Divisional Accountant from 24.6.2013 to 30.06.2014. (C) Your Lordships be pleased to allow this petition with costs. (D) Your Lordships be pleased to pass any other and further order, which may be deemed fit and proper in the interest of justice.” 3.1. Briefly stated that, the petitioner came to be appointed as Junior Clerk by Superintending Engineer, Public Health Project Circle, Rajkot vide office order issued vide letter dated 24.04.1981. The petitioner resumed the duty on 28.04.1981. Upon completion of 9 years of service, the petitioner was granted 1st higher grade by the respondent no.4 by office order no. 132/92 issued vide letter dated 25.09.1992, giving effect from 26.05.1990 to 1st higher grade in the grade of Rs.1200-30-1560-EB-40-2040, which is duly produced at Annexure-A. 3.2. The petitioner herein passed the departmental examination for Senior Clerk successfully and was promoted on the post of Senior Clerk vide order dated 28.05.1993 issued by the Superintending Engineer, Public Health Circle, Rajkot and accordingly the petitioner resumed duty on 31.05.1993. 3.3. The petitioner was transferred from the post of Senior Clerk to Senior Clerk (Account) from the Public Health Works Division, No.1 Bhuj to Public Mechanical Division, Jamnagar, considering transfer as line of promotion by respondent no.2 vide office order no. 19 of 2008 dated 12.03.2008. The petitioner was not able to resume the duty, due to unfavourable circumstances and in view thereof, gave an application on 19.03.2008 to the respondent no.2 and requested to give second chance for promotion, which is duly produced at Annexure-B and C respectively. 3.4. 19 of 2008 dated 12.03.2008. The petitioner was not able to resume the duty, due to unfavourable circumstances and in view thereof, gave an application on 19.03.2008 to the respondent no.2 and requested to give second chance for promotion, which is duly produced at Annexure-B and C respectively. 3.4. The petitioner thereafter was transferred from the post of Senior Clerk to Senior Clerk (Account) from Public Health Works Division, No.1, Bhuj to Public Health Works, Division No. 2, Jamnagar, considering transfer as line of promotion by the respondent no.2 vide office order no. 31 of 2008 dated 28.11.2008. The petitioner gave an application dated 05.12.2008 to the respondent no.2 to the effect that the petitioner was not able to resume the duty, due to unfavourable circumstance and requested to give second chance for promotion. The said communications are duly produced at Annexuere-D and E respectively. 3.5. The petitioner thereafter was transferred from the post of Senior Clerk to Senior Clerk (Account) from Public Health Works, Division No.1, Bhuj to Public Health Mechanical Circular, Rajkot, considering transfer as line of promotion by the respondent no.2 vide office order no. 5 of 2011 on 31.03.2011. The petitioner gave an application on 07.04.2011 to the Superintending Engineer, Public Health Mechanical Circle, Rajkot, to the effect that the petitioner had resumed the duty as Senior Clerk (Account) on promotional post on 07.04.2011. 3.6. The respondent no.1 entrusted the work of Divisional Accountant to the petitioner alongwith other employees in the office of the respondent no.5, where, the petitioner was working as Senior Clerk (Accounts), vide ofice order dated 20.06.2013, which is duly produced at Annexure-I. The said order states that the concerned employee, would not be entitled to get any type of additional charge allowance for working on vacant post of Divisional Accountant. 3.7. The respondent no.3 forwarded the case of the petitioner to the office of the respondent no.1 vide communication dated 15.11.2013 for necessary action in connection with giving pay scale of Divisional Accountant, copy of the letter dated 15.11.2013 is duly produced at Annexure-J. 3.8. The petitioner also gave detailed representation on 03.06.2014 to office of the respondents for sanctioning 2nd higher pay grade to the petitioner from 29.05.2005, the said representation is duly produced at Annexure-K. 3.9. The petitioner also gave detailed representation on 03.06.2014 to office of the respondents for sanctioning 2nd higher pay grade to the petitioner from 29.05.2005, the said representation is duly produced at Annexure-K. 3.9. The petitioner herein retired from service as Senior Clerk (Account) from the office of the respondent no.5 on 30.06.2014, upon attaining the age of superannuation. The petitioner worked as Divisional Accountant from 24.06.2013 to 30.06.2014 in the office of the respondent no.5. The respondent no.4 by letter dated 09.06.2014 communicated to the respondent no.3 to take action, according to Rules, in connection with sanctioning 2nd higher grade to the petitioner. The reminders were also issued to the office of the respondent no.1 on 31.03.2015, copy of the same is duly produced at Annexure-N. 3.10. The office of the respondent no.1, once again issued a communication dated 01.05.2015 to take appropriate action for grant of 2nd higher grade pay scale to the petitioner. The respondent no. 3 vide impugned communication dated 27.05.2015, informed the petitioner that the petitioner is not entitled for 2nd higher grade, according to existing Rules, as the petitioner did not accept the promotion from the post of Senior Clerk to the post of Senior Clerk (Account), copy of the impugned letter dated 27.05.2015 is duly produced at Annexure-P. 3.11. Being aggrieved by the impugned communication issued by the respondent no.3, the petitioner is constrained to approach this Court, by praying for the reliefs, as referred above. 4.1. Ms. Niyati V. Vaishnav, learned advocate appearing for the petitioner submits that the respondent no.3 has erred in not appreciating the fact that the post of Senior Clerk and the post of Senior Clerk (Account) are equivalent posts, having the same pay scale and therefore not accepting the transfer on the post of Senior Clerk (Accounts), could not have been treated as promotion. 4.2. Ms. Vaishnav, learned advocate further submits that, the promotional post from Senior Clerk (Account) is Divisional Accountant, though the petitioner imparted services on the post of Divisional Accountant, which is not in dispute from 24.06.2013 to 30.06.2014 in the office of the respondent no.5, the said order is duly produced at Page-28 (Annexure-I), the very said document is also produced by the respondent at Annexure-H, Pg. 60. 60. It is submitted that, the aforesaid communication prescribes that while the petitioner would be discharging the duty of Divisional Accountant, would not be entitled to any additional charge / allowance for working on the said vacant post. It is submitted that the aforesaid is self-explanatory that the petitioner though imparted duties on the aforesaid post, was never promoted as Divisional Accountant. In view thereof, in absence of promotional avenue, the petitioner herein was entitled for the grant of 2nd higher pay scale. To substantiate the aforesaid contention, Ms. Vaishnav, learned advocate placed reliance on the ratio laid down by the Hon’ble Division Bench in Letters Patent Appeal No. 278 of 2006, dated 24.06.2013 and Letters Patent Appeal No. 629 of 2008, dated 05.02.2013. It is submitted that, the order passed in Letters Patent Appeal No. 629 of 2008 was also challenged by the respondent – Corporation by preferring Special Leave to Appeal CC No. 4262-4263 of 2014, which also came to be dismissed on the ground of delay as well as on merits, by order dated 24.03.2014. 4.3. Placing reliance on the aforesaid judgments delivered by the Hon’ble Division Bench, it is submitted that the petitioner herein is also identically placed to the said appeals. In the said Appeals also, petitioners-appellants – were Senior Clerks and was transferred to Senior Clerks (Account). In the said Appeals, the concerned incumbents refused the transferred orders, however, it was held by the Hon’ble Division Bench that the same would not preclude the petitioner from entitlement of the next higher scale, in absence of promotion. 4.4. It is submitted that the aforesaid issue is no longer res-integra, wherein, the aforesaid judgments are delivered with respect to the same Corporation and for the same cadre and in view thereof, the prayers as prayed for, in the present petition may kindly be allowed. 5.1. Mr. H.S. Munshaw, learned advocate appearing for the respondent – Board, relied on the affidavit in reply filed by the respondent authority – respondent no.5, more particularly, the government resolution dated 16.08.1994, which is duly produced at page-66, Annexure-L and submitted that the petitioner herein is not entitled to grant of higher pay scale, in view of the fact that the petitioner declined the order of promotion and in view thereof, Clause-3(20) of the government resolution comes into play. It is submitted that, the grant of 2nd higher pay scale was rightly not considered by the respondent authorities, the petitioner having refused to accept the promotional orders to the post of Senior Clerk (Accounts). 5.2. It is further submitted that, the said resolution, specifically provides that, non acceptance of promotion would debar an employee from the benefit of higher pay scale. It is submitted that, due to denial of two promotional orders to the post of Senior Clerk (Accounts), the petitioner herein is rightly not extended the benefits of the 2nd higher pay scale. 5.3. It is also submitted that, only a qualified Senior Clerk, who has taken a due training and is having sufficient knowledge of operation of computer is promoted to the post of Senior Accounts Clerk, known as Deputy Accountant. It is submitted that, the Senior Clerk (Accounts) / Deputy Accountant is in the pay scale of Rs.5200-20200- grade pay of Rs.2400/- and is entitled to a special pay of Rs.50/- per month. The next promotional post is Divisional Accountant, carrying a pay scale of Rs.9300-34800- grade pay of Rs.4200/-. It is submitted that, only Senior Clerk (Accounts) / Deputy Accountant is eligible and entitled to a promotion to the higher post of Divisional Accountant. The Divisional Accountant is a promotional post, so far as account cadre is concerned. 6.1. Ms. Niyati V. Vaishnav, learned advocate appearing for the petitioner, in rejoinder, reiterates the contentions raised earlier and also relied on the order dated 20.06.2013 (Annexure-I, Pg.28), wherein, placing reliance on the same, it is reiterated the petitioner herein superannuated as Senior Clerk (Accounts) and in view thereof, the question of promotion does not arise. 7. Having heard the learned advocates appearing for the respective parties, the facts as referred above, are undisputed, and the same therefore are not repeated. 8.1. At this stage, this Court deems it fit to refer to the position of law, which has attained finality, wherein, Special Leave to Appeal (Civil) CC 4262-4263 of 2014 came to be dismissed by the Hon’ble Apex Court by order dated 24.03.2014. 8.2. The judgment and order dated 24.06.2013 passed by the Hon’ble Division Bench in Letters Patent Appeal No. 278 of 2006, relevant para-8 reads thus: “8. 8.2. The judgment and order dated 24.06.2013 passed by the Hon’ble Division Bench in Letters Patent Appeal No. 278 of 2006, relevant para-8 reads thus: “8. Further, we have carefully gone through the Government Resolution dated 16.8.1994 (Annexure F to the writ petition) which clearly lays down that a person will not be entitled for the benefits of the Government Resolution mentioned in the Scheme, if he had earlier not accepted the promotion. To the same effect, in paragraph 3 (20) of the Government Resolution, it has been mentioned that if promotion due to the employee has been refused by him or it has been given up by the employee for any reason, then he shall not be entitled for the benefit under the Scheme of higher pay scale. In the instant case, we do not find that the appellant has refused any promotion order. What has been refused by the appellant is a transfer order carrying the same emoluments and same pay scale. The Government Resolution dated 16.8.1994 does not provide that if an employee has refused to join at a transferred place, even then he will not be entitled for the next higher pay scale after completion of 9 years, 18 years and 27 years of service. Therefore, the impugned order passed by the respondents were illegal and contrary to the Government Resolution dated 16.8.1994 and cannot be upheld and the appellant is entitled for higher grades of pay scale after completion of 9 years, 18 years and 27 years of service in accordance with the Government Resolution dated 16.8.1994. But since the appellant has superannuated from service on 31.1.2006, he is entitled for the arrears of salary as well as fixation of his pension on the basis of higher pay scale. The appellant shall be entitled for difference of salary from 1.6.1987 to 31.1.2006 and his pension is liable to be revised and be fixed as per the higher pay scale to which the appellant is entitled.” 8.3. The appellant shall be entitled for difference of salary from 1.6.1987 to 31.1.2006 and his pension is liable to be revised and be fixed as per the higher pay scale to which the appellant is entitled.” 8.3. The judgment and order dated 05.02.2013 passed by the Hon’ble Division Bench in Letters Patent Appeal No. 629 of 2008, relevant observations/ paragraphs read thus: ““[3.0] Facts leading to the present Letters Patent Appeals in nutshell are as under: [3.1] Facts of the petitioner in Letters Patent Appeal No.629 of 2008 [Special Civil Application No.10428 of 2007] That at the relevant time the petitioner was working as Senior Clerk in the office of respondent No.3 at Bhuj – Kutch. That he was appointed as Mistry on Work Charge Establishment on 21.02.1979 in the State Service in Public Health Engineering Department. That thereafter he was appointed as Karkoon on Work Charge Establishment on 07.04.1980. That thereafter he was promoted as Junior Clerk on temporary establishment of respondent No.1 Gujarat Water Supply and Sewerage Board (hereinafter referred to as “Board”) from 01.08.1983. That thereafter he was promoted as Senior Clerk from 18.11.1988 and since then he was working as Senior Clerk. According to the petitioner on completion of nine years of service as Senior Clerk, as per the Government Resolution of the Finance Department dated 16.08.1994, he was entitled to the first Higher Pay scale of the next promotional post i.e. Divisional Accountant. According to the petitioner he gave the option by application dated 06.01.1998 opting for next promotional post i.e. Divisional Accountant. That thereafter by office order dated 02.03.1998 he was given the first Higher Pay scale of the post of Divisional Accountant – in the pay scale of Rs.1400 – 40 – 1600 – 50 – 2300 – EB – 60 – 2600 and the effect of the said Higher Pay Scale / Grade was given with effect from 18.11.1997 i.e. the day on which he completed nine years of service as Senior Clerk. It appears that thereafter by order dated 18.01.2005 the petitioner came to be transferred from Bhuj to Anjar from the post of Senior Clerk to Senior Clerk (Accounts). That the petitioner did not accept the said transfer and submitted the application dated 20.01.2005 requesting not to transfer the petitioner to the transferred place. It appears that thereafter by order dated 18.01.2005 the petitioner came to be transferred from Bhuj to Anjar from the post of Senior Clerk to Senior Clerk (Accounts). That the petitioner did not accept the said transfer and submitted the application dated 20.01.2005 requesting not to transfer the petitioner to the transferred place. That thereafter as the petitioner denied his transfer on the post of Senior Clerk (Accounts), treating the same as not accepting the promotion and treating the transfer on the post of Senior Clerk (Accounts) as promotional post, by order dated 10.03.2005 the Higher Pay Scale granted to the petitioner by order dated 02.03.1998 came to be cancelled/withdrawn. Feeling aggrieved and dissatisfied with the order passed by the respondents in withdrawing the pay scale granted to the petitioner on the ground that petitioner has not accepted the order of transfer on the post of Senior Clerk (Accounts), the petitioner preferred Special Civil Application No.10428 of 2007 and by impugned judgment and order the learned single Judge has dismissed the aforesaid Special Civil Application. xxx xxx [6.0] Heard learned advocates appearing on behalf of respective parties at length and considered the impugned common judgment and order passed by the learned single Judge. [6.1] It is not in dispute that the respective petitioners were serving as Senior Clerk with the respondent Board. That they completed nine years of service on the post of Senior Clerk and therefore, as per the Government Resolution dated 16.08.1994 they were entitled to the Higher Pay Scale of the next promotion post. That prior to grant of the Higher Pay Scale of the next promotion post i.e. Divisional Accountant, respective petitioners gave option opting the promotion to the post of Divisional Accountant. It is required to be noted at this stage that from the post of Senior Clerk/Senior Clerk (Accounts) and Store Keeper, the next promotion post is Head Clerk or the Divisional Accountant. It is also required to be noted at this stage that the post of Head Clerk and the Divisional Accountant carry the same pay scale. It is also required to be noted at this stage that even the post of Senior Clerk; Senior Clerk (Accounts) and Store Keeper also carry the same pay scale. It is also required to be noted at this stage that the post of Head Clerk and the Divisional Accountant carry the same pay scale. It is also required to be noted at this stage that even the post of Senior Clerk; Senior Clerk (Accounts) and Store Keeper also carry the same pay scale. Therefore, the respective petitioners gave their option of the next promotion post and they opted for the post of Divisional Accountant as next promotion post and accordingly the petitioners were granted the benefit of Higher Pay Scale of the post of Divisional Accountant/Head Clerk i.e. Rs.1400 – 40 – 1600 – 50 – 2300 – EB – 60 – 2600. However, it appears that subsequently by orders dated 18.01.2005 and 16.12.2004, the respective petitioners were transferred from the post of Senior Clerk to Senior Clerk (Accounts) and due to the circumstances narrated in their respective applications dated 20.01.2005 and 31.12.2004 they did not accept their transfer on the post of Senior Clerk (Accounts). Therefore, treating the post of Senior Clerk (Accounts) as next promotion post and considering the conditions mentioned in the Government Resolution dated 16.08.1994 to the effect that if an employee who has been granted the benefit of Higher Pay Scale of the next promotion post, as and when he is offered the promotion post, he refuses to accept the same, his Higher Pay Scale can be withdrawn, by orders dated 10.03.2005 and 11.03.2005, the Board has withdrawn the Higher Pay Scale granted to the petitioners. From the orders withdrawing the Higher Pay Scale, the Higher Pay Scales have been withdrawn solely on the ground that the respective petitioners have not accepted the order of transfer to the post of Senior Clerk (Accounts).Therefore, the short question which is posed for consideration of this Court is whether the Board was justified in withdrawing the Higher Pay Scale of the post of Divisional Accountant on the ground that the respective petitioners did not resume the duty at the transferred place i.e. on the post of Senior Clerk (Accounts) and treating the post of Senior Clerk (Accounts) as promotion post from the post of Senior Clerk? [6.2] It is required to be noted at this stage and as stated hereinabove as such the post of Senior Clerk and the Senior Clerk (Accounts) carry the same pay scale. [6.2] It is required to be noted at this stage and as stated hereinabove as such the post of Senior Clerk and the Senior Clerk (Accounts) carry the same pay scale. Even as per the recruitment regulations for recruiting the post of Divisional Accountant in the offices of the Board framed in exercise of subsection (2)(b) of Section 77 of the Gujarat Water Supply and Sewerage Board Act, 1978, appointment to the post of Divisional Accountant shall be made by selection through departmental promotion Committee from the cadre of Senior Clerk/Senior Clerk (Accounts)/Store Keeper on proved merit and efficiency working in the service of Board and from amongst the employees who have not less than seven years of service as Senior Clerk/Senior Clerk (Accounts)/Store Keeper. Thus, the appointment to the post of Divisional Accountant by selection through departmental promotion Committee would be from the cadre of Senior Clerk/Senior Clerk (Accounts)/Store Keeper. Thus, the post of Senior Clerk; Senior Clerk (Accounts) and Store Keeper are considered to be equivalent post for appointment to the post of Divisional Accountant. Even as per the statutory regulations – the recruitment regulations for recruiting the Deputy Accountant (Senior Accounts Clerk) in the office of the Board, the post of Senior Accounts Clerk were required to be filled in by transfer of Senior Clerk in the Board’s zone, however, from and amongst those Senior Clerk who possess fair knowledge of accounts, having experience of working in the account matter. Thus, even the post of Senior Clerk and the post of Senior Clerk (Accounts) were inter-transferable having the same pay scale. Therefore, as per the statutory regulations the next promotion post from the post of Senior Clerk and Senior Clerk (Accounts) would be the post of Divisional Accountant/Head Clerk. As stated herein above, the respective petitioners gave their option for promotion to the post of Divisional Accountant. It may be that for the promotion to the post of Head Clerk, as per the practice and/or requirement, an employee/Senior Clerk first has to become the Senior Clerk (Accounts). However, when a Senior Clerk has given the option to his next promotional post of Divisional Accountant, such a requirement of becoming the Senior Clerk (Accounts) may not be there. It may be that for the promotion to the post of Head Clerk, as per the practice and/or requirement, an employee/Senior Clerk first has to become the Senior Clerk (Accounts). However, when a Senior Clerk has given the option to his next promotional post of Divisional Accountant, such a requirement of becoming the Senior Clerk (Accounts) may not be there. Even from the submissions made by Shri Meena, learned advocate appearing on behalf of the Board, it appears that even the Board has considered the post of Senior Clerk (Accounts) “in line of promotion” [Page 74 (C)].Therefore, even the Board also did not consider the post of Senior Clerk (Accounts) as promotion post stricto senso and considered the same as transfer (promotion for line of promotion). However, it is an admitted position that so far as the promotion to the post of Divisional Accountant which is a next promotion post from the post of Senior Clerk is concerned, there is no requirement of becoming and/or working as a Senior Clerk (Accounts). Under the circumstances and considering the facts narrated hereinabove and even considering the statutory provisions referred to herein above the post of Senior Clerk (Accounts) cannot be considered as a next promotion post from the post of Senior Clerk and therefore, not resuming at the transferred place on the post of Senior Clerk (Accounts), it cannot be said to be denial of promotion to the higher promotional post by the petitioners which would warrant withdrawal of the Higher Pay Scale of the next higher promotional post as per the Government Resolution dated 16.08.1994.Under the circumstances, it appears that the Board has materially erred in withdrawing the Higher Pay Scale granted to the petitioners treating the post of Senior Clerk (Accounts) as next promotion post from the post of Senior Clerk. Under the circumstances, when the post of Senior Clerk (Accounts) cannot be said to be a next promotion post from the post of Senior Clerk and infact both the posts are equivalent pots carrying the same pay scale and inter se transferable subject to complying with the requirement as mentioned in the recruitment regulations for recruiting the Deputy Accountant/Senior Accounts Clerk in the Board, the action of the Board in withdrawing the Higher Pay Scales solely on the ground that the respective petitioners did not resume the transferred place on the post of Senior Clerk (Accounts) is most arbitrary, illegal, liable to be set aside and the learned single Judge has committed an error in confirming the said orders. [6.3] Now, so far as the reasoning given by the learned single Judge as well as the contention on behalf of the Board that though in the orders of transfer dated 18.01.2005 and 16.12.2004 transferring the respective petitioners from the post of Senior Clerk and Senior Clerk (Accounts), it was specifically mentioned that on non-resuming on the said post Senior Clerk (Accounts) their Higher Pay Scale shall be withdrawn and despite the same the petitioners did not challenge the same and therefore, thereafter it is not open for the petitioners to contend that on non-resuming the duty at the transferred place and on the post of Senior Clerk (Accounts), their Higher Pay Scale cannot be withdrawn is concerned, it is required to be noted and as stated herein above, even as per the statutory regulations the appointment to the post of Divisional Accountant shall be from the Senior Clerk/Senior Clerk (Accounts)/Store Keeper by promotion by departmental promotion Committee and therefore, there cannot be any estopple and/or waiver against the statutory provision/regulations. Infact the Board acted contrary to the statutory regulations and treated the post of Senior Clerk (Accounts) as next promotion post from the post of Senior Clerk. As observed by the Hon’ble Supreme Court in the case of A.C. Jose (Supra), there cannot be an estopple against the statute. Similar view has been expressed by the Hon’ble Supreme Court in the recent decision in the case of Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors. (Supra).The same principle would be applicable to the facts of the present case also. Similar view has been expressed by the Hon’ble Supreme Court in the recent decision in the case of Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti and Ors. (Supra).The same principle would be applicable to the facts of the present case also. As observed by the Hon’ble Supreme Court in the case of Ramesh Kumar (Supra), if the act is contrary to the statutory provision, the question of acquiescence do not arise. Under the circumstances, there is no question of any waiver by the petitioners on the ground that earlier the petitioners did not challenge the conditions mentioned in the orders of transfer dated 18.01.2005 and 16.12.2004 to the effect that if the petitioners do not resume the duty at the transferred place – on the post of Senior Clerk (Accounts), their Higher Pay Scale shall be withdrawn. It is always open for the petitioners to challenge the subsequent decision of withdrawal of the Higher Pay Scale if the same is found to be against the statutory regulations. Under the circumstances, the learned single Judge has materially erred in non-suiting the petitioners on the ground that when the petitioners did not challenge the orders dated 18.01.2005 and 16.12.2004 in which it was specifically mentioned that on non-resuming at the transferred place – on the post of Senior Clerk (Accounts), their Higher Pay Scale shall be withdrawn and therefore, it was not open for the petitioners subsequently to challenge the same and contend that the post of Senior Clerk (Accounts) cannot be treated as a next higher promotional post from the post of Senior Clerk. [6.4] It is also required to be noted at this stage that even the order passed by the Board cancelling the Higher Pay Scale was in breach of principles of natural justice and no opportunity of being heard was given to the petitioners before cancelling the Higher Pay Scale granted to them earlier. [6.5] It is reported that subsequently both the original petitioners were infact promoted to the post of Divisional Accountant and by now both the petitioners have retired. [7.0] In view of the above and for the reasons stated above, both these Letters Patent Appeals succeed. [6.5] It is reported that subsequently both the original petitioners were infact promoted to the post of Divisional Accountant and by now both the petitioners have retired. [7.0] In view of the above and for the reasons stated above, both these Letters Patent Appeals succeed. Impugned common judgment and order dated 15.01.2008 passed in Special Civil Application Nos.10428 of 2007 and 10434 of 2007 is hereby quashed and set aside and consequently the orders passed by the respondents dated 10.03.2005 and 11.03.2005 withdrawing the Higher Pay Scale granted to the original petitioners earlier vide orders dated 02.03.1998 and 22.02.1999 are also hereby quashed and set aside. Accordingly, the necessary consequences shall follow and their retiral benefits shall be calculated accordingly as if the orders withdrawing the Higher Pay Scale to the petitioners have not been withdrawn and the earlier orders dated 02.03.1998 and 22.02.1999 are continued. No costs. “ 9. At this stage, it is apposite to refer to the ratio as laid down in the case of Whirlpool Corporation V/s. Registrar of Trade Mark, Mumbai reported in (1998) 8 SCC 1 , Para-15 reads thus: “15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.” 10. In light of the aforesaid facts and the position of law, as referred above, the petitioner herein is identically placed to the appellant/petitioner of aforesaid Letters Patent Appeals. In light of the aforesaid facts and the position of law, as referred above, the petitioner herein is identically placed to the appellant/petitioner of aforesaid Letters Patent Appeals. The petitioner also rendered services on the post of Senior Clerk (Account), till the age of superannuation. The communication dated 20.06.2013 duly produced at page-28 (Annexure-I) (in affidavit in reply at pg.60, Annexure-H by the respondent) is self-explanatory that while the petitioner imparted services as Divisional Accountant, the petitioner was never paid, for the said services rendered by the petitioner, till the age of superannuation. The representations / communications by the respondent no.3 were also not considered, wherein, it was stated that the case of the petitioner be considered for grant of higher pay scale. 11. In light of the aforesaid undisputed facts, in the opinion of this Court, the petitioner was never promoted on the post of Divisional Accountant, which also emerges from the affidavit in reply, which is filed by the respondent – Corporation and is not in dispute. The petitioner superannuated as Senior Clerk (Accounts). 12. For the foregoing reasons, this is a fit case to exercise the extraordinary jurisdiction under Article-226 of the Constitution of India, to quash and set aside the impugned letter dated 27.05.2015 (Annexure-P) which declined to grant 2nd higher grade pay scale to the petitioner herein and the same is hereby quashed and set aside accordingly. For the reasons as stated above, the respondent authorities are directed to consider the case of the petitioner for grade of 2nd higher grade, upon due verification and in accordance with the government resolution dated 16.08.1994, which is applicable to the petitioner herein. The aforesaid exercise be undertaken by the respondent authorities within a period of 8 weeks from the date of the receipt of the order. The petition stands allowed accordingly. Rule is made absolute. Direct service is permitted.