( 1 ) BOTH the petitioners were armed constables who are convicted by the learned Sessions Judge, Mehsana by his judgment and order dated 14th March, 1991 for the offence committed under Secs. 302, 307 and 114 of the indian Penal Code. Both the petitioners have been sentenced, inter-alia, to suffer rigorous Imprisonment for five years. Feeling aggrieved by their conviction, the petitioners have preferred Criminal Appeal No. 157 of 1991 before this Court. Said appeal is admitted by this Court and the petitioners have been released on bail.

( 2 ) WHILE the petitioners were serving as armed police constables on 27th June, 1989, they opened firing which resulted into death of member of public. It is for commission of this offence, the petitioners have been convicted as aforesaid. Pursuant to the said conviction, the petitioners have been dismissed from service under orders dated 6th February, 1993, made by the District Superintendent of police, Mehsana.

( 3 ) THE petitioners have preferred this petition against the above referred orders of dismissal from service made on 6th February, 1993. Learned Advocate mr. Shastri has appeared for the petitioners and has contended that :- in view of the appeal, against conviction of the petitioners having been admitted by this Court and the petitioners having been released on bail, order of conviction cannot be said to have attained finality and, therefore, no order of dismissal could have been made against the petitioners. The question that arises for the Courts consideration is whether pending appeal against conviction, disciplinary action can be taken against the convicted Government servant or not. The matter is no more res integra. The Full Bench of this Court was posed with the very issue in the matter of P. D. Waghela and Ors. v. G. C. Raiger, Dy. I. G. P. and Ors. , 1994 (1) GLR 240 (FB ). The Court considering the rival contentions has, in paragraph 21 of the judgment, held thus :"the conviction spoken to in clause (a) of the second proviso to clause (2) of art. 311, to form a basis for the dismissal, removal or reduction in rank, could be one recorded by a competent Criminal Court in the first instance and the preferring of an appeal or revision against such conviction and the pendency of the same will not alter the position and action, taken on the basis of such conviction, need not conform to clause (2) of Art. 311, since by the express terms of the second proviso thereto, clause (2) of Art. 311 is dispensed with. " hence, in view of the above judgment, this contention raised by Mr. Shastri is rejected. Mr. Shastri has further contended that before making any order of punishment pursuant to the conviction by the Criminal Court, the Government servant concerned is required to be afforded an opportunity to show cause against the proposed punishment. While considering the larger issue, the Full Bench in case of P. D. Vaghela (supra), made it clear that it was not expressing any view on effect of rules, circulars and instructions providing for different contingencies and speaking in different language. He has submitted that in view of the provisions contained in the gujarat Civil Services (Discipline and Appeal) Rules, 1971, (hereinafter referred to as "the Rules") the petitioners were required to be given an opportunity to show cause against the proposed punishment. In the present case, the respondents have failed to comply with the aforesaid formality and, therefore, the impugned dismissal is vitiated. In support of his contention, he has relied upon the judgment of the division Bench of this Court in the matter of State of Gujarat and Ors. v. Sudama sinh Lotan Sinh, 1994 (2) GLR 1201. In that case, the Division Bench, considering the provisions made in Rules 14 and 10 of the Rules, held that pursuant to the provisions contained in Rule 10 (4) (b) of the Rules, the Government servant was required to be afforded an opportunity to show cause against the proposed penalty