JUDGMENT G. C. Bharuka, J. - This writ application has been filed by the petitioner for quashing of the order dated 16th October, 1992 passed by the District Superintendent of Education, Siwan (Annexure-1) by which he has been dismissed from service because of his conviction in a murder case leading to 14 years rigorous imprisonment. 2. According to the petitioner he is an Assistant teacher in Middle School, Gaighat in the district of Siwan. The petitioner alongwith some other accused persons was put on trial in a criminal case instituted under sections 147/148/149/323/324/302 of the India Penal Code. After trial the 3rd Additional Sessions Judge, Siwan by his judgment and order dated 31.3.1992 in S. Tr. No. 281 of 1982 alongwith the others, convicted the petitioner under sections 304/148 of the Indian Penal Code awarding 14 years and 2 years R. I. respectively. The petitioner has preferred an appeal before this Court being Cr. Appeal No. 44 of 1992, which has been admitted on 12.5.1992 and the petitioner has been directed to be released on bail. It is because of the said conviction that the impugned order of dismissal has been passed. 3. Learned counsel for the petitioner has assailed the impugned order on the ground that since now the appeal of the petitioner against the order of conviction has been admitted by this Court and he has been enlarged on bail, it was impermissible in law on the part of the respondent District Education Officer to pass the impugned order of dismissal against him. According to him, the appeal being in continuation of the original proceedings, till his conviction is finally approved by the last court thereby giving a finality to the finding of guilt against him, in absence of duly drawn departmental proceeding, the petitioner cannot be subjected lo a severe penalty of dismissal. 4. Learned counsel for the petitioner has also placed reliance on a Government decision contained in Circular No. III/RI-102/A-10158 dated 3rd August, 1983 issued by the Chief Secretary to the Government, to all the Government Departments and its Heads, wherein it has been directed that if a Government servant is convicted on a criminal charge, then no action should be taken under clause (a) of Proviso 2nd to Article 311(2) of Constitution till any appeal filed against the said judgment or• the order of conviction is finally disposed of. 5. 5. On the other hand, learned Advocate General appearing on behalf of the respondent has submitted that in view of clause (a) of 2nd proviso to Article 311(2) of the Constitution of India the disciplinary authority need not wail for conclusion of appellate or revisional proceedings for awarding punishment of dismissal since the conviction on a criminal charge by the court of first instance is enough for exercising such a jurisdiction. In support of his submission he has placed reliance on various judicial pronouncements. 6. Article 311 of the Constitution reads as under: 311 (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 was been informed of the charges against him and given a reasonable opportunity of being heard in respect of these 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 a 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 an authority empowered to dismiss or remove a person or to reduce him in rank is 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." 7. The scope and ambit of the constitutional provision under consideration has been dealt with in detail by the Supreme Court in the case of Union of India vs. Tulsiram Patel, reported in AIR 1985 S. C. 1416 (Pr. 127 at page 1477) wherein it has been held that : "Not much remains to be said about clause (a) of the second proviso to Article 311 (2). To recapitulate briefly, where a disciplinary authority comes to know that a Government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and, if so, what that penalty should be. For that purpose it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various factors set out in Challappan's case (AIR 1957 SC 2216). This, however, has to be done by it exparte and by itself. Once the disciplinary authority reaches the conclusion that the government servant's conduct was such as to require his dismissal or removal from service or reduction in rank he must decide which of these three penalties should be imposed on him. This too it has to do by itself and without hearing the concerned government servant by reason of the exclusionary effect of the second proviso. The disciplinary authority must, however, bear in mind that a conviction in a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned government servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the acts and circumstances of the case. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order. A government servant who is aggrieved by the penalty imposed can agitate in appeal, revision or review, as the case may be, that the penalty was too severe or excessive and not warranted by the acts and circumstances of the case. If it is his case that he is not the government servant who has been in fact convicted, he can also agitate this question in appeal, revision or review. If he fails in all the departmental remedies and still wants to pursue the matter, he can invoke the court's power of judicial review subject to the court permitting it. If the court finds that he was not in fact the person convicted, it will strike down the impugned order and order him to be reinstated in service. Where the court finds that the penalty imposed by the impugned order is arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular government service the court will also strike down the impugned order. Thus, in Shankar Dass v. Union of India (1985) 2 SCC 358 : ( AIR 1985 SC 772 ) this Court set aside the impugned order of penalty on the ground that the penalty of dismissal from service imposed upon the appellant was whimsical and ordered his reinstatement in service with full back wages. It is, however, not necessary that the court should always order reinstatement. The court can instead substitute a penalty which in its opinion would be just and proper in the circumstances of the case. The Second Proviso - Clause (b)" 8. Similarly in the case of Shankar Dass v. Union of India and another reported in AIR 1985 S. C. 772 (Pr. 7 at page 774) it has been held thus : " It is to be lamented that despite these observations of the learned Magistrate the Government chose to dismiss the• appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. 7 at page 774) it has been held thus : " It is to be lamented that despite these observations of the learned Magistrate the Government chose to dismiss the• appellant in a huff without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But that power like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution docs not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may perhaps not be entitled to be heard on the question of penalty since Cl. (a) of the second proviso to Art. 311 (2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical." 9. In view of the provisions quoted above and the law declared in this regard by the Supreme Court, there cannot he any doubt that a Government servant can be subjected to dismissal or removal or reduction in rank on the ground of conduct which has led to his conviction on a criminal charge and further for inflicting' any such punishment on enquiry or disciplinary proceeding needs to be conducted or initiated. But the question is whether preferring and pendency of appeal against any such conviction can be said to circumscribe the judgment of conviction passed by the court of first instance for the present purposes. No bindings precedent either of the apex court or this court has been brought to our notice but their are some reported cases of other High Courts on the issue. 10. In the case of State of U. P. vs. Mohd. No bindings precedent either of the apex court or this court has been brought to our notice but their are some reported cases of other High Courts on the issue. 10. In the case of State of U. P. vs. Mohd. Nooh, reported in AIR 1958 S. C. 95 (at page 96) it has been held that "there is nothing in the Indian Law to warrant the suggestion that the decree or order of the Court or Tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision. The filing of the appeal or revision may put the decree or order in jeopardy hut until it is reversed or modified it remains effective". Therefore, the disciplinary authority can he said to he quite competent to award appropriate punishment on the basis of the conviction by the trial court provided the misconduct is grave enough to attract the punishment of dismissal or removal or reduction in rank. 11. In the case of Kunwar Bahadur v. Union of India, reported in 1969 LIC 990 (All) (Pr. 18) while dealing with the provisions in question it has been held: "If the civil servant has been convicted by a criminal court, there is not much point in holding a departmental enquiry. That is the principle underlying sub-clause (a) of the proviso to Article 311 (2). But sub-clause (a) implies that the civil servant's conviction stands. If the conviction is ultimately set aside in appeal or in revision, it cannot be said that the civil servant's misconduct has been established before the Criminal Court. In such a case the civil servant can properly claim a departmental enquiry under Article 311(2)." 12. No doubt, the submissions made on behalf of the State find support from the above referred judgments in the cases of State of U.P. (supra) and Kunwar Bahadur (supra) but, in my opinion, it is not necessary to decide that issue for the present. It is so because the Sub-clause (a) of the 2nd proviso to Article 311 (2) of constitution merely enables the Government as an employer to award certain punishments in case of conviction of a Government servant. Exercise of such discretion is not mandatory. It is so because the Sub-clause (a) of the 2nd proviso to Article 311 (2) of constitution merely enables the Government as an employer to award certain punishments in case of conviction of a Government servant. Exercise of such discretion is not mandatory. Despite the said enabling provision the Government may under the given circumstances or pursuant to its policy decision may refrain from awarding any punishment pursuant to any conviction on a criminal charge. It may also lay down in its own policy decision to regulate the discretion of these Government and its authorities in this regard. So far as the State of Bihar is concerned, it has been admitted by the learned Advocate General that the above referred Government decision dated 3rd August, 1983 issued under the signature of the Chief Secretary to the Government contains the following policy decision in paragraph 9 thereof; "9. Under proviso (a) to Article 311 (2) of the Constitution, a Government servant may be dismissed or removed or reduced in rank without being put through departmental proceedings on the ground of conduct which has led to his conviction on a criminal charge. Government desire that this proviso should be fully utilised. But an appeal being continuation of the trial, action under this proviso should not be taken until (I) the criminal appeal has been disposed of or (2) the time limit for filing an appeal has expired:' 13. Learned Advocate General after seeking instructions from the Secretary, Personnel Department, has stated at the Bar, that the aforesaid policy decision of the Government is still in force in the State. But still he submits that not with standing the aforesaid policy decision, it should be presumed that the disciplinary authorities pursuant to the Constitutional provisions, enjoy a discretion in their favour empowering them to pass appropriate orders of punishment against a Government servant, who has been found guilty of a criminal charge by the trial court even if an appeal is pending against such an order of conviction. In my opinion, it will be too unjust and may lead to arbitrariness if any such stand as taken by the learned Advocate General is accepted as valid in law, Any policy decision taken by the Government to regulate the conduct of its Officers, even" if it be not statutory in nature, should be held as binding on their conduct and they Cannot be allowed to apply a Rule of pick and choose while enforcing such policy decision. In this connection, I may usefully refer to the decision of M/s. Yineeta Prasad Vs. The Vice Chancellor, reported in 1991 (2) PLJR 725 , wherein it has been held to be, I settled principle of administrative law that where there is a defined procedure, even without any statutory force, it must be scrupulously 'observed and non-observance thereof results in rendering the act void being violative of Article 14 of the Constitution. To arrive at the said conclusion reliance was placed on the Case of Sukhdev Singh v. Bharat Ram, A.I.R. 1975 S.C. 1331, B.S. Mishra v. Indian Statistical and others, (A.I.R. 1984 S.C. 363), Sadhu Sinnh and others v, 'State of Punjab (A.I.R. 1984 S.C. 739, A. L. Kalra Vs. The Project and Equipment corporation of India Ltd. (A.I.R. 1984 S.C. 13(1). 14. In the above view of the matter, in my opinion, once the Government has taken a policy decision of not resorting to clause (a) of the proyiso to Article 311 (2) of the Constitution during the pendency of an appeal by a convict Government servant then the same should be followed till the said policy is otherwise modified or revoked. 'In the present case, since an appeal is admittedly pending before this Court for consideration, in my opinion, the impugned under awarding punishment of dismissal (Annexure 1) cannot he sustained. Accordingly, the same is quashed. Anyhow it will be open for the respondents to pass any fresh order, in else the policy decision, referred to above, is revoked or modified or pursuant to a duly initiated departmental proceeding. 15. The writ application is accordingly allowed subject to the observations made above. There will be no order as to costs.