A government servant cannot be removed from service solely on the basis of a criminal conviction. The conduct of the government servant leading to the conviction must be considered to determine if further retention in public service is undesirable.

( 1 ) THE controversy involved in the present writ petition revolves round the question as to whether a Government servant can be dismissed or removed from service merely on the basis of his conviction from the Court of law in a criminal charge or it is the conduct of a Government servant which had led to his conviction on a criminal charge, is to be considered in taking action of dismissal, removal from the service or reduction in rank, more so when the conviction has been stayed in criminal appeal by the appellate court.

( 2 ) NECESSARY facts draped in brevity are that the petitioner was in the service of State government and was posted as Senior Division Clerk under the control of Deputy Director general, N. C. C. , U. P. Lucknow. A criminal case at Crime No. 747 of 1998 was registered against the petitioner and other person at police station Kotwall, Pratapgarh under Sections 147, 148, 149, 302, 304, 324, 397, I. P. C. and after committal of the case. Session Trial No. 63 of 1998 was instituted. The petitioner was convicted and sentenced for life imprisonment under Section 302/149, six months R. I. under Section 147, six months R. I. under Section 324/149, six months r. I. under Section 323/149. I. P. C. Against the aforesaid conviction, the petitioner preferred an appeal in this Court and the order appealed against was stayed vide order dated 14. 10. 1988 in exercise of power conferred under Section 389, Cr. P. C. The petitioner was removed from service vide order dated 31. 10. 1985 passed by the Dy. Director General of N. C. C. , U. P. , lucknow on the ground of conviction of the petitioner under Section 302/149, I. P. C. w. e. f. the date of receipt of order. The operative part of the order is quoted herein below :

"in view of your conviction of life imprisonment under Section 302/149, I. P. C. vide Judgment dated 8 February, 83 passed by Sri R. K. Agarwal IIIrd Addl. District and Sessions Judge, pratapgarh, in Case No. 63 of 1980. State v. Bucchi and others, on criminal charge. I remove you from service of the Government of Uttar Pradesh with effect from the date of receipt of this order. (N. N. Gupta)Brigadier, dy. Director General N. C. C. , U. P. (Appointing Authority)"

( 3 ) THEREAFTER, he preferred a departmental appeal against the order of removal before the State government but the same was rejected and he was communicated about the same by letter dated 20. 9. 1988 issued by the Directorate of N. C. C. , UP. The petitioner moved several representations apprising the opposite parties that this Court in criminal appeal had stayed the operation of the order of conviction and he should be re-instated but his representations were rejected. Thereafter, the petitioner filed a writ petition in this Court being Writ Petition No. 2464 (S/s) of 1984 which was allowed. The impugned order dated 20. 9. 1988 communicating the petitioner that his departmental appeal has been dismissed by the State Government was set aside and the case was sent back to the State Government to decide the appeal filed by the petitioner against the removal order dated 31. 10. 1985 afresh with the observations that since on the date on which, the petitioner was removed from service, the operation or the judgment and order dated 8. 2. 1983 was not stayed, it was open for the appointing authority to decide the appeal filed by the petitioner against the order dated 31. 10. 1985 afresh in accordance with law and in the light of the observations made above. Thereafter, again when the State Government did not decide the appeal, he filed another Writ Petition No. 3312 (S/s) of 1994 which was decided vide order dated 7. 7. 1994 directing the State Government to decide the appeal in the light of the observations made in the judgment dated 3. 12. 1992 within a period of 6 weeks from the date of production of a certified copy of that order. Thereafter, the petitioner was communicated another letter dated 28. 6. 1994 by which he was informed that h