ORAL ORDER

1. Heard Mr. Rakesh Patel, learned advocate for the petitioner and Mr. Kurven Desai, learned AGP for the respondent State.

2. By an impugned decision dated 18.11.2019, the petitioner has been denied the benefit of the higher grade scale on the ground that the petitioner is not so entitled to it, in view of the sub-clause (b) of para 4 of the resolution dated 31.03.2005 which stipulates that in the event an employee is faced with a major penalty, such an employee is not entitled to the benefit of higher grade scale. This decision is under challenge in the present petition.

3. The facts in brief in the present case would indicate that pursuant to departmental proceedings against the petitioner on account of unauthorized leave with respect to the period from 07.09.1991 to 03.04.1994, a penalty was imposed by order dated 11.11.1998. Reading the order of penalty indicates that the petitioner was inflicted with penalty of stoppage of five increments with future effect.

4. Mr. Rakesh Patel, learned advocate appearing for the petitioner would contend that reading the Gujarat Civil Services (Discipline and Appeal) Rules, 1971, this was a minor penalty and therefore the order impugned herein of stoppage of higher pay scale was misconceived.

5. Mr. Kurven Desai, learned AGP relying on the affidavit-in-reply filed on behalf of the respondent no. 2 would contend that the impugned order dated 18.11.2019 is justified. He would submit that the punishment of reduction of pay by five stages in existing pay was imposed on the petitioner and therefore it was a major penalty under Rule 6(4) of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.

6. Considering the issue on hand and on perusal of the Gujarat Civil Services (Discipline and Appeal) Rules, 1971 and so also the decision of this court reported in the case of B.R. Acharya vs. State of Gujarat reported in 1985(2) GLR 685, particularly para 6 which reads as under, the penalty of stoppage of withholding of increments is a penalty which is not a major penalty and therefore sub clause (b) of para 4 of the resolution dated 16.08.1994 will not come into play.

“6. That takes me to the third contention canvassed by the petitioner. He submitted that the original order of transfer of headquarter from Bhavnagar to Savarkundla reduced the petitioner from a class II to class III servant and, therefore, it amounted to reduction in rank. It is not possible to agree with his contention. Strictly speaking, I am not concerned with the legality and propriety of the original order of transfer as that order is not challenged in the proceedings before me, and cannot be challenged as the petitioner itself is admitted or considered of a solitary challenge regarding legality of the penalty order dated 5th August, 1980. But the apart, even on merits, there is no substance in that contention. At the relevant time, the petitioner was a class II employee at Bhavnagar. He had, amongst other Savarkundla court with in his jurisdiction. By the transfer order, all that happened was that his headquarter was shifted from Bhavnagar to Savarkundla and he was allowed to work only at Savarkundla court. That does not mean that the petitioner was reduced in rank from class II to class III. He remained a probation officer. The only change brought about was that his headquarter was changed and instead of he being placed in charge of four taluka courts, he was sought to be placed in charge of one Taluka court. Thus, the extent of his workload was reduced alongwith change of headquarter. But that did not affect in the least his status as class II servant. There is no question of reduction in rank involved in that order. The petition invited my attention to rule 6(4) of the rules which reads as under :-

"Reduction to a lower stage in the time scale to pay for a specified period, with further directions as to whether or not the Government servant will earn increment of pay during the period of such reduction and whether