Sudhanshu Dhulia, J.

1. Mr. G.D. Joshi, Advocate for the petitioner.

2. Mr. N.P. Sah, learned Standing Counsel for the State of Uttarakhand/respondents.

3. The petitioner who was a Constable in Uttarakhand Civil Police has challenged the orders of his dismissal before this Court. The dismissal of the petitioner is on the grounds that he has been convicted in a criminal offence under Section 338 IPC and sentenced for a period of two years rigorous imprisonment with a fine of Rs.1000/- and consequently the appointing authority invoking its power evidently under Rule 8(2)(a) of the Uttar Pradesh Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 dismissed the petitioner from service.

4. The petitioner as a young Constable had joined police service in the year 2005. One day he accidently fired from his service rifle, which injured a person. This consequently resulted in lodging of the first information report on the same day i.e. on 12.04.2010, under Section 308 IPC. In the trial court the findings which have come up are that petitioner went to a tea stall in Pithoragarh on 12.04.2010, and ordered a cup of tea. He had placed his service rifle on the table, and while unloading his rifle a fire was shot and as a result a person who was working in the tea stall was injured, as the bullet pierced his right palm. The trial court though framed charges against the petitioner under Section 308/326/338 IPC but ultimately it convicted the petitioner only under Section 338 IPC and sentenced him for two years rigorous imprisonment with a fine of Rs.1000/-. Section 338 IPC reads as under:-

“Section 338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

5. After his conviction, the appointing authority dismissed him from services vide order dated 31.08.2013. In appeal, however, though the conviction of the trial court was upheld by the High Court, but the benefit of Section 4 of the Probation of Offenders Act was given to the petitioner, and was released under the above Act. There is a specific order to this effect. Since the sentence of two years of rigorous imprisonment was waived, the petitioner promptly moved an application before the appointing authority stating that he is liable to be given benefit of Section 12 of the Probation of Offenders Act (from hereinafter referred to as “the Act”) and since there is no “disqualification” now attached to him, he should be reinstated in service. The appointing authority after seeking a legal opinion in the matter rejected the representation of the petitioner vide order dated 21.01.2014 stating that the High Court has only changed the sentence and the conviction still remains and there is no order of the High Court of reinstating the petitioner in service, thus rejected his representation. Aggrieved, he has filed the present writ petition before this Court.

6. This entire case rests on interpretation of Section 12 of the Act. Section 12 of the Act reads as under:-

“Section12. Removal of disqualification attaching to conviction.- Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of section 3 or section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law:

Provided that nothing in this section shall apply to a person who, after his release under section 4 is subsequently sentenced for the original offence.”

7. The only ground in the petition is that once the disqualification attached to a conviction is wiped out in view of specific provision under Section 12 of the Act, there is no “disqualification” existing