B. J. DIVAN, J. ( 1 ) THE petitioner herein who at the relevant time was working as an officiating Senior Clerk in the Special prison at Bhuj has challenged the order dated May 27 1966 by which he was reverted to his substantive post of Junior Clerk at Bhuj Special Prison. The petitioners case as set out in the petition is that he was first appointed as a Clerk in Jamnagar District Jail in the then Saurashtra State on October 3 1951 and ultimately after various transfers. promotions and reversions on November 23 1965 he was promoted to work as an Officiating Senior Clerk. By the order dated May 7 1966 Annexure A to the petition the second respondent the Inspector General of Prisons State of Gujarat served the petitioner with a memo informing the petitioner that the petitioner was promoted merely as an officiating Senior Clerk and that his work as Senior Clerk was not found satisfactory - This memo Annexure A to the petition was accompanied with a list of defects. Thereafter on May 27 1966 the second respondent issued the order which has been challenged in the present proceedings reverting the petitioner as Junior Clerk on the ground of unsuitability to hold the post of Senior Clerk. ( 2 ) MR. Daru on behalf of the petitioner contended firstly that this reversion of the petitioner to his substantive post of junior clerk amounted to a discharge of a probationer within the meaning of rule 33 Explanation 2 of the Bombay Civil Services Conduct Discipline and Appeal Rules. It may be pointed out that Appendix I to these Rules reproduces rule 49 of the Central Government Rules and Explanation 2 to rule 49 is in the same terms. That explanation 2 to rule 33 as well as rule 49 is in these terms. The discharge of a probationer whether during or at the end of the period of probation for some specific fault or on account of his unsuitability for the service amounts to removal or dismissal within the meaning of this rule. Mr. That explanation 2 to rule 33 as well as rule 49 is in these terms. The discharge of a probationer whether during or at the end of the period of probation for some specific fault or on account of his unsuitability for the service amounts to removal or dismissal within the meaning of this rule. Mr. Daru has relied upon the decision of J. B. Mehta J. in Special Civil Application No. 378 of 1966 decided on February 28 1970 There my learned Brother has taken the view that the case of an officiating Mamlatdar who was reverted to his substantive post of Aval Karkun on the ground of unsuitability for a higher post was governed by the provisions of Explanation 2 to rule 49 in Appendix I to these Rules. The relevant portion of the judgment runs :-IN the present case even the relevant Bombay Civil Service Conduct Discipline and Appeal Rules make the entire position clear. Rule 49 in Appendix I provides for various penalties which for good and sufficient reasons can be imposed upon members of the services. Explanation 11 provides that the discharge of the probationer whether during or at the end of the period of probation for some specific fault or on account of his unsuitability for the service amounts to dismissal or removal within the meaning of this rule Therefore even such officiating employee if he is sought to be removed from his officiating post on the ground of unsuitability of such service the order would be one of removal within the meaning of rule 49 which necessitated departmental proceedings as provided in the rule. With utmost respect to my learned Brother I am unable to accept this reasoning. In the first place an order of reversion from an officiating post to a substantive post does not amount to an order of discharge. With utmost respect to my learned Brother I am unable to accept this reasoning. In the first place an order of reversion from an officiating post to a substantive post does not amount to an order of discharge. Such reversion may be on the ground of exigencies of the services or as pointed out by the Supreme Court in some of the cases it may be on the ground that the Government employee concerned was not found suitable to discharge responsibilities of the higher post but so long as reduction in rank i. e. from the officiating higher post to the substantive lower post is not by way of penalty the provisions of Art. 311 (2) or of rule 55 of the Central Rules and Rule 33 of the Bombay Civil Services Conduct Discipline and Appeal Rules are not attracted. Further an employed holding a lower substantive post when promoted to a higher post in all officiating capacity cannot be said to be a probationer within the meaning of Explanation 2 to Rule 33 of the Bombay Rules or Rule 49 of the Central Rules. Thus in the instant case the petitioner was neither a probationer; nor was the impugned order an order of discharge. I am informed by Mr. Daru that Vakil J. sitting singly and Sarela J. sitting singly have not accepted the reasoning which appealed to Mehta J. and under these circumstances on this submission of Mr. Daru I prefer to follow the reasoning of Vakil and Sarela JJ. rather than that of Mehta J. It appears that the attention of Mehta J. was not drawn to the decisions of Vakil J. and Sarela J. in this connection ( 3 ) MR. Daru next contended that the Order dated May 27 1966 Ex. B to the petition is penal inasmuch as the unsuitability to the higher post mentioned in Ex. B must be read in the light of the Memo dated May 7 1966 Annexure A to the petition. Now it appears that by the Memo. Annexure A to the petitioner was informed that he was on officiating basis as Senior Clerk and further that his work as Senior Clerk W. 15 not satisfactory and a list of the defects found was annexed to the memo. Now it appears that by the Memo. Annexure A to the petitioner was informed that he was on officiating basis as Senior Clerk and further that his work as Senior Clerk W. 15 not satisfactory and a list of the defects found was annexed to the memo. Inspite of being clearly told that his work was unsatisfactory the petitioner does seem to have improved to the satisfaction of his superiors and thereafter on May 27 1966 the impugned order was passed reverting the petitioner to his substantive post of Junior Clerk. There was no departmental enquiry regarding the work of the petitioner; nor was any charge framed on the ground of inefficiency or misconduct and it cannot be said that in the instant case the order of reversion was passed on May 27 1966 for reverting the petitioner to the lower post by way of penalty. In my opinion Ex. B is not a penal order either read by itself or read in conjunction with Ex. A to the petition. The second contention of Mr. Daru also fails and is rejected. ( 4 ) THESE were the only contentions urged on behalf of the petitioner. Both the submissions fail. Therefore this Special Civil Application fails and is dismissed. Rule is discharged. There will be no order as to costs of this petition. Petition dismissed. .