Heard the parties.

2. This application has been filed for quashing the order dated 28.9.1993, contained in Annexure-1 whereby purporting to act under proviso (a) to Article 311 (2) of the Constitution of India, the petitioner has been dismissed from service on the ground that he has been convicted in a criminal case.

3. Undisputedly, against his conviction, the petitioner has perferred an appeal before this Court giving rise to Criminal Appeal no. 209 of 1989 which has been duly admitted and the petitioner has been granted bail in that case, as would be evident from the order contained in Annexure-4.

4. Learned counsel appearing on behalf of the petitioner submitted that power under the aforesaid proviso cannot be exercised if against conviction, delinquent Government servant has preferred an appeal, so long the appeal is not disposed of. In this connection, my attention has been drawn towards Government circular dated 23rd August, 1963, paragraph 9 whereof lays down that since appeal is in continuation of the trial, action under the aforesaid proviso should not be taken until criminal appeal has been disposed of or time limit for filing appeal has expired. In the case in hand, f