The Government's policy decision to refrain from taking action under Article 311(2) Proviso 2(A) during the pendency of an appeal is binding on the disciplinary authorities.

G. C. Bharuka, J. - This writ application has been filed by the petitioner for quashing of the order dated 16th October, 1992 passed by the District Superintendent of Education, Siwan (Annexure-1) by which he has been dismissed from service because of his conviction in a murder case leading to 14 years rigorous imprisonment.

2. According to the petitioner he is an Assistant teacher in Middle School, Gaighat in the district of Siwan. The petitioner alongwith some other accused persons was put on trial in a criminal case instituted under sections 147/148/149/323/324/302 of the India Penal Code. After trial the 3rd Additional Sessions Judge, Siwan by his judgment and order dated 31.3.1992 in S. Tr. No. 281 of 1982 alongwith the others, convicted the petitioner under sections 304/148 of the Indian Penal Code awarding 14 years and 2 years R. I. respectively. The petitioner has preferred an appeal before this Court being Cr. Appeal No. 44 of 1992, which has been admitted on 12.5.1992 and the petitioner has been directed to be released on bail. It is because of the said conviction that the impugned order of dismissal has been passed.

3. Learned counsel for the petitioner has assailed the impugned order on the ground that since now the appeal of the petitioner against the order of conviction has been admitted by this Court and he has been enlarged on bail, it was impermissible in law on the part of the respondent District Education Officer to pass the impugned order of dismissal against him. According to him, the appeal being in continuation of the original proceedings, till his conviction is finally approved by the last court thereby giving a finality to the finding of guilt against him, in absence of duly drawn departmental proceeding, the petitioner cannot be subjected lo a severe penalty of dismissal.

4. Learned counsel for the petitioner has also placed reliance on a Government decision contained in Circular No. III/RI-102/A-10158 dated 3rd August, 1983 issued by the Chief Secretary to the Government, to all the Government Departments and its Heads, wherein it has been directed that if a Government servant is convicted on a criminal charge, then no action should be taken under clause (a) of Proviso 2nd to Article 311(2) of Constitution till any appeal filed against the said judgment or• the order of conviction is finally disposed of.

5. On the other hand, learned Advocate General appearing on behalf of the respondent has submitted that in view of clause (a) of 2nd proviso to Article 311(2) of the Constitution of India the disciplinary authority need not wail for conclusion of appellate or revisional proceedings for awarding punishment of dismissal since the conviction on a criminal charge by the court of first instance is enough for exercising such a jurisdiction. In support of his submission he has placed reliance on various judicial pronouncements.

6. Article 311 of the Constitution reads as under:

311 (1) 'No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he was been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges :

Provided that where it is proposed after such. inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give a person any opportunity of making representation on the penalty proposed :

Provided further that this clause shall not apply -

(a) where a person is dismissed or removed or• reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or

(b) where an authority empowered to dismiss or remove a p