S. C. AGRAWAL J. - (1.) DR. Trilochan Singh the petitioner in this writ petition, filed under Art. 226 of the Constitution of India, was employed as a Veterinary Assistant in Animal Husbandry Department of the Government of Rajasthan. He was prosecuted in respect of the offe ces under Sections 409,420 468, 20i and 120b, I. P. C. , before the Judicial Magistrate, Shri Karanpur. The Judicial Magistrate, Sri Karanpur, by his judgment dated 3rd August, 1981, convicted the petitioner of the offences under Sections 408, 120b, and 201, I. P. C. and has been sentenced to rigorous imprisonment for two years and to pay a fine of Rs 2,000/- and in default of payment of fine to undergo imprisonment for a period of six months. The petitioner has filed an appeal against the aforesaid conviction and sentence imposed upon him by the Judicial Magistrate, Sri Karanpur. and the said appeal is pending in the Court of the Sessions Judge, Sri Ganganagar. and the sentence imposed on the petitioner, has been suspended during the pendency of the said appeal. After the aforesaid conviction of the petitioner by the Judicial Magistrate, Sri Karanpur, under his judgment dated 3rd August, 1981, and during the pendency of his appeal before the Sessions Judge, Sri Ganganagar, the Director, Animal Husbandry, Rajasthan, Jaipur, passed an order dated 17th May. 1982, whereby the petitioner was removed from service with effect from 1st May, 1982. In the said order a reference has been made to the conviction of the petitioner on a criminal charge under Sections 408, 120b, and 201, I. P. C. , and it has been stated that the conduct of the petitioner which led to his conviction, was such as to render his further retention in the public service undesirable. Being aggrieved by the aforesaid order dated 17th May, 1982, removing him from the service, the petitioner filed this writ petition wherein the petitioner has prayed that the order dated 17th May, 1982, passed by the Director, Animal Husbandry, Rajasthan, Jaipur, be quashed.
(2.) A notice was issued to the respondents of the writ petition and in response to the said notice, a reply has been filed on their behalf. I have heard Shri M. L. Garg, learned counsel for the petitioner, and Shri R. P. Dave, Deputy Government Advocate. Shri Garg, has submitted that in view of the pendency of the appeal of the petitioner against his conviction and sentence imposed on him by the Judicial Magistrate, Sri Karanpur, and in view of the suspension of the sentence of the petitioner during the pendency of the said appeal by the Sessions Judge, Sri Ganganagar, the Director could not have terminated the services of the petitioner on the ground that the petitioner has been convicted on a criminal charge under Sections 408, 120b and 201, I. P. C. According to Shri Garg, provisions of clause (a) of the proviso to sub-Article (2) of Art. 311 of the Constitution, which excludes the application of sub-Article (2) of Article 311 to cases where a persona is dismissed or removed in rank on the ground of conduct which has led to his conviction on a criminal charge, and the provisions of sub-rule (i) of Rule 19 of the Rajasthan Civil Services (Classification. Control and Appeal) Rules, 1958, which enables penalty being imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge without following the procedure laid down in Rules 16, 17, and 18 of the said Rules, can be invoked only in those cases where the conviction has become final and that the said provisions would not be attracted in cases where the conviction is under challenge in an appeal and the appeal is still pending. In support of his aforesaid contention, Shri Garg has placed reliance on the decisions of this Court in Gulraj Khatri vs. State of Rajasthan, S. B. Civil Writ Petition No. 1127/76, decided on 7th July, 1961. Gopal Singh vs. State of Rajasthan. S. B. Civil Writ Petition No. 51/76, decided on 5th September, 1978, affirmed in appeal by the Division Bench of this Court in State of Rajasthan vs. Gopal Singh, D. B. Special Appeal No 10/79, decided on 2-4-1979; and Khem Chand vs. State and others, S. B. Civil Writ Petition No. 77 of 1978, decided on 15th March, 1982. The learned Deputy Government Advocate does not contest the legal position as laid down in the above mentioned decisions of this Court, on which reliance has been placed by Shri Garg, and it must, therefore, be held that so long as the appeal against the conviction, is pending before the appellate Court, the services of a Government employee, cannot be terminated on the basis of the conduct, which has led to his conviction. There is no dispute that on the date of the passing of the impugned order dated 17th May, 1982, the appeal filed by the petitioner against his conviction in respect of the charges under Sections 408, 120b and 201, I. P. C. , was pending before the Sessions Judge, Sri Ganganagar and the sentence imposed on the petitioner by the Judicial Magistrate, Sri Karanpur, under his order dated 3rd August, 1981, had been suspended by the Sessions Judge, Sri Ganganagar. In the circumstances, the conduct of the petitioner, which led to his conviction by the Judicial Magistrate, Sri Karanpur, under his order dated 3rd August, 1981, could not be made the basis for removing the petitioner from service. The order dated 17th May, i982, cannot, therefore, be sustained and must be quashed. In the result, the writ petition is allowed, the order (Annexure 4) dated 17th May, 1982, passed by the Director, Animal Husbandry, Rajasthan, Jaipur, removing the petitioner from service, is quashed. There will be no order as to costs of this writ petition. . ;