JUDGMENT :

BIREN VAISHNAV, J.

1. Heard Mr. Samir B Gohil, learned advocate for the petitioner and Mr. D.G. Chauhan, learned advocate for the respondent.

2. In this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 03.03.2012, by which, the petitioner requested for the second higher grade scale due from 21.10.2004 which have been refused.

3. The facts in brief would indicate that the petitioner was working as a Supervisor. His date of joining is 13.10.1980. The petitioner was granted the first higher pay scale on 21.10.1989. According to the petitioner, the second higher pay scale became due from 21.10.2004, but for a misconduct, the petitioner was faced with a penalty of stoppage of one increment with future effect on 11.09.2001. On a representation made by the petitioner for benefit of being granted the second higher pay scale by the impugned order of 03.03.2012, the same has been rejected. The petitioner superannuated on 30.04.2018.

4. Mr. Samir Gohil, learned advocate for the petitioner, would submit that the denial of the second higher pay scale is misconceived. He would submit that the resolution of 31.03.2005 on which reliance is placed for denying the benefit of the second higher pay scale is applicable only in the case of major penalties and not the penalty which the petitioner has been imposed which is minor. Reliance is placed on a decision of this Court in Special Civil Application No. 14668 of 2018 and which according to Mr. Gohil, learned advocate, was in fact identical to that of the present petitioner.

5. Mr. D.G. Chauhan, learned advocate appearing for the respondent, Water Supply & Sewerage Board, would draw the attention of the Court to the affidavit-in-reply and submit that:

5.1 The petition is misconceived and delayed as the order of rejection of 03.03.2012 has been challenged after more than seven years after his retirement on 30.04.2018 the petition is filed in the year 2019.

5.2 Taking the Court through the order of penalty, he would submit that the order of penalty is that of stoppage of one increment with permanent effect, and therefore, it is a major penalty. Moreover, the judgment of this Court cited by Mr. Gohil, learned advocate, will not be applicable.

6. Considering the submissions made by the learned counsels for the respective parties, two things need to be gone into:

(i) Whether the petitioner is entitled to a discretionary relief under Article 226 of the Constitution of India on the ground of the petition being barred by delay.

(ii) To the submission of Mr. Gohil, learned advocate, that in the case of Sultanaben Bavudinbhai Kazi v. Gujarat Water Supply & Sewerage Board, the petition was not thrown out on the ground of delay. It has distinguishable ground, inasmuch as, the impugned order before that Bench in the petition was dated 21.08.2018 whereas the petition was filed on 19.09.2018.

7. Albeit, the petitioner there had retired on 31.05.2013. However, in the facts on hand, what is important to notice is that having denied the benefit of higher pay scale by the order of 03.03.2012, the petitioner waited for his retirement in April 2018 i.e. for a period of six years and thereafter filed this petition only in June 2019. The submission of Mr. Gohil, learned advocate, that the petition was not filed as the petitioner was within the employment of the respondent, and therefore, apprehensive of adverse consequences is misconceived.

7.1. Secondly, prima facie, on the facts of the case in the decision of Sultanaben (supra), the penalty was of withholding of one increment without future effect, whereas evident it is from the facts on hand that the increment in the case of the petitioner is though reduction of one increment it is with permanent effect. The facts of the case, therefore, cannot be compared to that of petitioner of Special Civil Application No. 14668 of 2018.

8. On both these grounds therefore, the petition is found without merit and the sa