Hon’ble Sunil Ambwani, J.—Heard Shri Kaushal Kishore Mishra for the petitioner. Learned Standing Counsel appears for the respondents. The affidavits have been exchanged. With the consent of parties, the writ petition was finally heard and is finally decided at the admission stage.

2. The petitioner was serving as ‘Seenchpal’ in the office of Executive Engineer, Fatehpur Division, Lower Ganga Canal, Fatehpur. For the purposes of discipline and conduct, his services are governed by the Uttar Pradesh Government Servants (Discipline & Appeal) Rules, 1999, notified under Article 309 of the Constitution of India.

3. In the year 1999, in an incident in which one Raju was murdered, the petitioner, along with other accused namely Chhatrapal; Virendra and Ramanand arrested under Sections 302/149/147, IPC. They were granted bail. The petitioner along with other accused was charge sheeted and was tried in Sessions Trial No. 287 of 2000 in which he was convicted and sentenced to life imprisonment with a fine of Rs. 10,000/- under Section 302/149, IPC, and further with a three year’s rigorous imprisonment and a fine of Rs. 2,000/- under Section 147, IPC. All the sentences were directed by the Additional Sessions Judge, Fast Track Court No. 1, Fatehpur vide his judgment dated 29.11.2007, to run concurrently.

4. The petitioner has preferred an appeal in the High Court being Criminal Appeal No. 8200 of 2007, Ram Pratap Yadav v. State of U.P., in which the petitioner has been granted bail on 7.1.2008.

5. In the meantime, the Executive Engineer dismissed petitioner’s services on his conviction in Sessions Trial No. 287 of 2000 under Sections 302/149, 147, IPC; for being punished with life imprisonment and also for his detention in jail on 29.11.2007. The petitioner has challenged the order dated 26.12.2007 terminating his services on the ground that though under clause (a) of the second proviso to Article 311 (2) of the Constitution of India a person, who is member of the civil service of the union, may be dismissed or removed or reduced in rank on the ground of conduct, which has led to his conviction on a criminal charge, in view of judgments of Supreme Court and specially in Union of India v. Tulsi Ram Patel, (1985) 3 SCC 368 : AIR 1985 SC 1416, the appointing authority is required to look into his conduct, which has led to his conviction on the criminal charge.

6. It is submitted by learned counsel for the petitioner that in the judgment after the trial the Sessions Judge found that the petitioner Ram Pratap Singh was carrying a rifle. He did not fire from the rifle. The Sessions Court has clearly recorded that the rifle was not fired and that there was no fire arm injury on the body of the deceased. The petitioner was convicted only under Section 147, IPC as a member of the unlawful assembly, which led to the death of the deceased Raju. It is contended that the mechanical exercise of powers in dismissing the petitioner from service has caused serious consequence upon the petitioner, who had put in 13 years of service. The termination of his services without looking into his conduct, which led to his conviction, has caused serious prejudice to the petitioner. Learned counsel for the petitioner would submit that the order dismissing petitioner from service needs to be set aside and that the authority may be directed to consider whether the petitioner’s conduct did not entitle him to remain him in service.

7. In the counter affidavit of Shri Nem Singh, Executive Engineer, L.G. Canal Division, Fatehpur, it is stated in paragraph-6 and 13 as follows :

“6. That in reply to the contents of paragraphs 7 and 8 of the writ petition, it is most respectfully submitted that the petitioner has already been convicted in case crime No. 214 of 1999 under Sections 147/148/149/302, IPC vide order dated 29.11.2007 passed by Sessions Court and as such in view of the said Government Order dated 12.10.1979, the services of the petitioner have been terminated vi