JUDGMENT Hon’ble Surendra Vikram Singh Rathore, J.—Heard Mr. H.G.S. Parihar, learned Senior Advocate for the review petitioner, learned Standing Counsel for the State and perused the material available on record. 2. The instant review petition has been filed under Chapter V, Rule 12 of the Rules of the Court read with Section 114 and Order 47 of the C.P.C. by the review petitioner against the judgment and order dated 27.2.2012 passed by this Court in Writ Petition No. 6565 (SS) of 2008 whereby the said writ petition was dismissed. 3. Submission of learned counsel for the review petitioner was that wrong facts were placed before the Court on behalf of the respondents and relying upon the pronouncement of this Court in the case of Riyasat Alia and others v. State of U.P. and others, 2003 (53) AIR 257, which has been followed in the case of Suraj Prasad Tewari v. Zila Commandant, Home Guards, Hamirpur and others, (2005) 1 UPLBEC 404 , the said petition was dismissed. It is further submitted that the said case laws were with reference to the Home Guards, who were not treated to be civil servants as they were on daily payment basis. He has further submitted that review petitioner Sarojani Devi was not a Home Guard but she was Block Organizer in Home Guard Department and subsequently she was promoted under U.P. Home Guard Subordinate Service Rules, 1982 in regular pay scale and confirmed under U.P. Government Service Confirmation Rules, 1991 in Block Organizer Cadre, as such, she was a civil servant and the rejection of her earlier petition holding her to be an ordinary Home Guard not falling without the purview of Civil Servant was an error apparent on the face of record. 4. Per contra, learned Standing Counsel has argued that even if the mistake as asserted by the learned counsel for the review petitioner is accepted even then, the petitioner was not entitled for any relief because she has been convicted for the offence under Sections 306 and 498-A I.P.C. and Section 4 of the Dowry Prohibition Act by Additional Sessions Judge, Court No. 11, Lucknow, in Sessions Trial No. 1364 of 2001. 5. 5. Submission of learned counsel for the review petitioner is that inspite of the conviction of the review petitioner, her conduct ought to have been evaluated by the competent authority and without evaluating the same, she has been dismissed from service. Because of the error, apparent on the face of record, this aspect of the matter was not considered. 6. Learned counsel for review petitioner has drawn the attention of this Court towards paragraph No. 11 of the counter-affidavit filed in main petition wherein it was pleaded on behalf of the respondents that as per the provisions of the Government Order No. 6.10/79-Ka.-1 dated 12.10.1979 unless the petitioner is acquitted in the criminal appeal filed by her against the order dated 28.3.2008, she cannot be considered for her reinstatement in service. The provisions of Article 14 of the Constitution of India have not been violated. 7. On the basis of this averment made in the counter-affidavit, it has been submitted that service of the review petitioner was governed by Article 311 of the Constitution of India as well as U.P. Government Servant (Discipline and Appeal) Rules, 1999. so the finding of the Court that review petitioner was not a civil servant, was an error apparent on the fact of record. 8. After going through the record, it is clear that there is an error apparent on the fact of record that review petitioner Sarojani Devi was Home Guard and she does not fall without the purview of Civil Servant. But the position remains that she has been convicted as stated above, so Article 311 (2) of the Constitution of India shall also apply. 9. Submission of learned counsel for the review petitioner was that by virtue of Article 311 (2) of the Constitution of India, the petitioner could have been dismissed from service only after evaluating her conduct. But without evaluating her conduct, her dismissal was unsustainable under law. In support of his submission, he has placed reliance on the pronouncement of Division Bench of this Court in the case of Shyam Narain Shukla and another v. State of U.P. and others, (1989) 2 UPLBEC 418, whereby the Division Bench of this Court following pronouncement of Apex Court, which have been quoted in paragraph No. 6 of the aforesaid judgment has observed in paragraph No. 7 as under : “7. In view of the above decision of the Supreme Court, it has to be held that whenever a Government servant is convicted of an offence, he cannot be dismissed from service merely on the ground of conviction but the appropriate authority has to consider the conduct of such employee leading to his conviction and then to decide what punishment is to be inflicted upon him. In the matter of consideration of conduct as also the quantum of punishment the employee has not to be joined and the decision has to be taken by the appropriate authority independently of the employee who as laid down by the Supreme Court is not to be given an opportunity of hearing at that stage.” The part of the judgment of the Apex Court on which the Division Bench has placed reliance is reproduced here as under : “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. This, however, has to be done by it ex parte 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 on 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. The disciplinary authority must, however, bear in mind that a conviction on 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 facts 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 and another, (1985) IILLJ 184 SC, 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.” 10. In view of the aforesaid pronouncement, it was the duty of the appointing authority to consider the conduct of review petitioner before dismissing her from service after her conviction, which admittedly has not been done in this matter. Therefore, the above error apparent on the fact of record has necessitated, the review of this judgment. 11. In view of the discussion made above, this review petition is allowed. Accordingly, writ petition is also allowed and impugned order dated 16.7.2007 is set-aside. Therefore, the above error apparent on the fact of record has necessitated, the review of this judgment. 11. In view of the discussion made above, this review petition is allowed. Accordingly, writ petition is also allowed and impugned order dated 16.7.2007 is set-aside. Consequently, the appointing authority shall pass appropriate orders in accordance with Article 311 (2) of the Constitution of India and after evaluating the conduct of the petitioner in accordance with law shall pass appropriate order. It is hereby made clear that the appointing authority shall be at liberty to take any decision in the matter and this order shall not be treated to be any implied recommendation of this Court to pass any order in favour of the review petitioner. This Court hope and trust that such decision shall be taken at the earliest preferably within a period of three months from the date a certified copy is produced before it. Prayer for revocation of her suspension is declined. ——————