R. BALIA, J. ( 1 ) MR. M. B. Anjara, Senior Clerk of the Ayurved Department was visited with an order of punishment by order dated 18. 11. 1982 made by Director of Ayurved under which he was reverted to the post of Junior clerk for a period of three years with a stipulation that those who are promoted during that period would be senior to him and his seniority as senior clerk would be determined on the basis of the date of repromotion on the expiry of the period of punishment. Against the order dated 18. 11. 1982 an appeal was filed before the Gujarat Civil Services Tribunal which was registered as Appeal No. 592 of 1982. The Tribunal vide its order dated 1. 8. 1984 found that the cumulative effect of the misconduct on the part of the appellant that he denied to attend to old work; that despite the orders of superiors he misbehaved with his superiors and his attitude was high handed and arrogant and that he worked at sixes and seven can be held to be proved beyond doubt and he must face the consequences therefor. However, as to the quantum of punishment it was of the opinion that there were mitigating factors which ought to have been taken into consideration not only before initiating the enquiry against the appellant but also at the stage of detemining the final penalty and by taking into consideration all circumstances, set aside the penalty of reduction in rank from the cadre of Senior Clerk to Junior Clerk and substituted it with the penalty of withholding two increments due to the petitioner thereafter in the scale of Senior Clerk and further that the appellant should not be promoted for two years to the higher post even it due, according to this seniority as a senior Clerk. The period of suspension should be treated as such. ( 2 ) ONE fact which may also be noted that the Departmental enquiry culminated on 18. 11. 1982 when final order of penalty was passed by reducing the petitioner lower in rank from Senior Clerk to Junior Clerk. The order dated 18. 11. 1982 was stayed in appeal which continued to remain in operation during the pendency of appeal. ( 2 ) ONE fact which may also be noted that the Departmental enquiry culminated on 18. 11. 1982 when final order of penalty was passed by reducing the petitioner lower in rank from Senior Clerk to Junior Clerk. The order dated 18. 11. 1982 was stayed in appeal which continued to remain in operation during the pendency of appeal. ( 3 ) HAVING considered the rival contentions and totality of circumstances, so far as the finding of misconduct of petitioner is concerned, it being based on appreciation of evidence about which no unfairness can be found cannot be interfered with in a petition under Art. 226 for issuing a writ of certiorari as it suffers neither from error apparent on the face of record nor it suffers from want of jurisdiction. So also substitution of the penalty of reduction in rank with penalty of withholding of two grade increments prospectively and withholding promotion for two years prospectively also cannot be interfered with as the punishment cannot be said to be in any manner grossly disproportionate to misconduct proved so as to warrant interference. ( 4 ) HOWEVER treating the period from the date of the filing the appeal until disposal of appeal as period of suspension, in my opinion, is not warranted in law. The suspension of the petitioner if any during pendency of enquiry came to an end on passing of the final order of punishment of reducing the petitioner in rank by posting him in lower cadre. The status of the petitioner as a suspended employee would thereafter not arise. The stay of the operation of the order of reduction in rank on appeal by the delinquent employee would only mean that the order of punishment of lowering in rank would remain in stay and he would continue as an employee in the origional rank. When the date on which the impugned order was made the enquiry was not pending and the petitioner was not in suspension but was only in lowered status than the one to which he would have otherwise continued, such order being stayed, it would only result in that the petitioner continues in the higher grade to which he was othewise entitled. There was no warrant for treating the petitioner under suspension. There was no warrant for treating the petitioner under suspension. Even in terms of final order passed, petitioner would have continued in his office, if no interference was made in the order of origional authority. If the order of the original authority would have been maintained the petitioner could not have been treated under suspension for a period appeal the petitioner could not have been put in a worse position by treating him under suspension for that period. In any view of the matter, treating the petitioner under suspension during the period of pendency of appeal was not justified. Therefore that part of the order treating the petitioner under suspension during the period of the pendency of appeal while stay order was in force deserves to be quashed. It is clarified that the order of punishment would remain in force as modified and it would mean that petitioners two grade increments will be withheld for the period of two years that he would not be promoted to the next post for the period of two years from the date of the appellate order. Ordered accordingly. Petition partly succeeds. Rule made absolute as above. No costs. .