Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL WRIT PETITION (S/S) NO. 1085 OF 2003 Dal Chand Singh ………..Petitioner. Versus State of Uttaranchal and others ……..Respondents. Mr. Jagdish Bisht, Advocate for the petitioner. Mr. N.P. Sah, Standing Counsel for the State of Uttarakhand. Hon’ble Sudhanshu Dhulia, J. The petitioner, by means of the present writ petition, has prayed for a writ, order or direction in the nature of Certiorari quashing the order dated 24.7.2003 passed by the Additional Director (Education) Uttaranchal, Dehradun and also the order dated 30.7.2003 which has been passed by the Principal, Rajkiya Inter College, Audali, Udham Singh Nager. In addition to it, the petitioner has also prayed for a writ of Mandamus commanding the respondents to allow the petitioner to join on the post of Lecturer (Hindi Department) during the pendency of the Criminal Appeal. The brief facts of the case are that the petitioner who, at the relevant time was a Lecturer in Hindi, was implicated in a criminal case in the Police Station Thakurdwara, District Moradabad, Uttar Pradesh under Section 302/34/ 201 I.P.C. Subsequently, a charge-sheet was filed and criminal trial proceeded against the petitioner in which the petitioner with other co-accused was convicted of murder and sentenced for life imprisonment as well as a fine of Rs. 5,000/-. The petitioner, however, contends that against the order of 2 conviction and sentence he filed a Criminal Appeal No. 1019 of 2003 before the High Court of Judicature at Allahabad, as the crime was committed on the border district of Uttar Pradesh at Thakurdwara which falls in district Moradabad, which is in Uttar Pradesh. This appeal has been admitted and the petitioner has been enlarged on bail on 5.3.2003. However, vide order dated 30.7.2003 the services of the petitioner have been terminated in further compliance of the order of the Additional Director (Education), Uttaranchal, Dehradun dated 24.7.2003 under provisions of Article 311 (2) (a) of the Constitution of India. Since Article 311 has an important bearing in this case, the same is being reproduced as under for ready reference :- “311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. – (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 has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those 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 such 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 the authority empowered to dismiss or remove a person or to reduce him in rank is 3 satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or (c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]” The petitioner while challenging the orders impugned in the present writ petition has contended that the principle of natural justice and fair play required that an opportunity of hearing was to be given to the petitioner before terminating his services. He has challenged the aforesaid orders on other grounds as well. Counter affidavit has been filed by the State in which the impugned orders dated 24.7.2003 and 30.7.2003 have been justified. Further recourse has been taken in the counter affidavit to the Government Order dated 12.10.1979 which says that if an appeal is filed against the order of conviction and even if the same has been admitted, an employee against whom criminal appeal is pending is liable to be dismissed under Article 311 (2) (a). Be that as it may, consequent to the filing of the writ petition, learned counsel for the petitioner has moved a Civil Miscellaneous Application No. 1965 of 2005 by which another fact has been brought to the record which is that the execution of sentence awarded by the trial court has been stayed by order dated 21.11.2003 which has been passed by a learned Single Judge of the High Court of Judicature at Allahabad in a 4 pending Criminal Appeal of the petitioner bearing No. 1019 of 2003, which reads as follows :- “Heard learned counsel for the appellant Sri Shashank Shekhar. None appeared on behalf of other party. Perused the order dated 5.3.03 passed by this court whereby appellants have already been granted bail. It is submitted that the appellant no. 2 Dalchand is a teacher and has been in service since 1.10.1988. During trial he was in service but after conviction he has been terminated from the service vide annexures 1 and 2 and his sentence awarded by the court below be suspended. Considering the aforesaid facts and submission made by learned counsel for the appellant, execution of sentence awarded by court below Dalchand shall remain stayed until further order of the court.” Although, no formal amendment has been made in the writ petition, learned counsel for the petitioner contends that since the High Court of Judicature at Allahabad has stayed the execution of sentence awarded to the petitioner, he is liable to be reinstated in service and the order of termination of his services is liable to be set aside. This argument of the petitioner is wholly misconceived, for the simple reason what has been stayed by the High Court of Judicature at Allahabad is the execution of the sentence and not the “conviction” of the petitioner. Requirement under Article 311 (2) (a) is “conviction on a criminal charge”. The conviction of the petitioner under Sections 302/34, 201 I.P.C. by a competent criminal court still stands and, therefore, the argument of the petitioner is wholly misconceived. Moreover, where the execution of sentence is stayed no benefit can be granted to the petitioner presently in the writ petition, as has been laid down by the Supreme Court in Union of India and others v. Ramesh Kumar 5 (1997) 7 SCC 514. The Supreme Court in the above case has held that in cases where an employee is dismissed from service on the ground of his misconduct leading to his conviction by a competent court of law, it will not loose its sting merely because a criminal appeal has been filed against the order of conviction and the appellate court has suspended the execution of sentence and enlarged the employee on bail. All the same, what is important is what has already been stated above, the order of the conviction against the petitioner still stands and has not been stayed. Towards the end of the arguments, learned counsel for the petitioner states that there is a provision for appeal under Section 11 of the Uttaranchal Government Servant (Discipline and Appeal) Rules, 2003 and he may be permitted to file an appeal. It is too late in the day to make such a submission. This Court finds absolutely no merit in the writ petition, which is liable to be dismissed and is hereby dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 22.6.2010 Avneet