K.N.Goyal, J. - (1.) THE petitioner who is a Junior High School teacher was convicted under Section 302 IPC by a Court of Sessions but his appeal against that conviction is pending before this Court. He has now been dismissed on the basis of his conviction by an order dated 30-9-83. Learned counsel for the petitioner has contended that the eventuality of dismissal on the basis of conviction is not contemplated in the U. P. Basic Educational Staff Rules, 1973. It appears however that Rule 5 (3) of those Rules lays down that the procedure laid down in Civil Services (Classification, Control and Appeal) Rules (for short CCA Rules) as applicable to a government servant shall as far as possible be followed in disciplinary proceedings under these rules. Rule 55 of the C. C. A. Rules lays down that opportunity is to be given to the delinquent only in a case where an order of dismissal etc. that if proposed to be passed is not based on facts which had led to his conviction in a Criminal Court. Thus, indirectly, it has been provided that no opportunity is to be given for an order of dismissal on the basis of facts which have led to the conviction of the teacher by a Criminal Court.
(2.) LEARNED counsel Sri Mannan has invited our attention to sub-rule (2) (b) of Rule 49-A of the CCA Rules which read as follows "A Government servant shall be deemed to have been placed, or as the case may be, continued to be placed under suspension of an order of the appointing authority. (a)..................... (b) with effect from the date of his conviction, if in the event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed consequent to such conviction. Explanation-The period of forty eight hours referred to in clause (b) of this sub-rule shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. His contention is that if a public servant is not forthwith dismissed or removed consequent to his conviction he can only be deemed to have been placed under suspension under this sub-rule and he cannot be dismissed thereafter. He further contends that this provision has been made in order to cover the case of pendency of an appeal against conviction. In other words, where an appeal has been filed by the convict he can only be treated as under suspension during the pendency of that appeal and he cannot be dismissed on that basis unless he has been dismissed forthwith. This is an ingenous argument, but in our opinion does not bear scrutiny. The rule cannot be so interpreted as to imply that the power of dismissal consequent to the conviction of the public servant, if it is to be exercised at all, must be exercised forthwith. The provision in the rule has been made only to cover the case where a government servant is undergoing imprisonment and the period of imprisonment exceeds the period of forty-eight hours. The government servant could not discharge his functions while he is in jail. Both clauses (a) and (b) relate to the period of the government servant's detention in custody, though clause (b) is not very happily worded in this regard. It is well settled that conviction by a criminal court means a final conviction and if the conviction is ultimately set-aside it means that the person concerned was never convicted. It follows that if the petitioner's criminal appeal against the conviction is ultimately allowed and his conviction is set aside it will be obligatory on the authorities to re-instate him.
(3.) AS such we find no merit in this petition which is hereby dismissed. Petition dismissed.;