G.M. Lodha, J.
1. In this writ petition, Mr. Mridul, counsel for the petitioner, submits that Section 11 Clause (g) and its proviso of the Rajasthan Panchayat Act has been wrongly interpreted by the Election Tribunal.
2. The petitioner filed the election petition & the principal controversy was whether the conviction of the returned candidate would be counted from the date he was convicted by the Magistrate or the period for the purposes of part 2 of the proviso to Section 11 would be counted from the date, the revision petition against the conviction was decided.
3. The Tribunal has held that the period of six years' would commence from the date of judgment of conviction of the trial court and the confirmation of that judgment by the revisional court will not result in fresh commencement of the period from that date. Clause (g) of Section 11 reads as under:
(g) has been convicted by a competent court of an offence involving moral turpitude.
Proviso (ii) of Section 11 reads as follows:
(ii) for the purposes of Clause (c), (g), (i) (xxxxx) and (m) any person shall become eligible after lapse of six years from the date of his dismissal or conviction, as the case may be, or earlier if he is declared eligible for election by a general or a special order of the State Government in this behalf.
Obviously, a person becomes eligible even though earlier he was disqualified on account of conviction, after lapse of six years' from the date of his conviction.
4. The date of conviction cannot be postponed for the finality to be given by the appellate court or the revisional court.
5. Mr. Mridul placed reliance upon the judgment of Purshotam Singh v. Union of India A I.R. 1980 RLW 376 in which earlier judgment of this Court in Gopal Singh v. State of Rajasthan was referred. Reliance was placed on Dhawani Ram v. Union of India A.I.R. 1965 Punj. 133, referred to in Purshotam Singh's case, where in it was held for the purposes of Article 311 Clause (2) and its proviso (a) conviction means conviction which has been ordered finally.
6. Obviously, the controversy in the cases of Gopalsingh, Dhawani ram and Purshotam Singh related to the important question whether a civil servant can be dismissed on the basis of his initial conviction, even though the appeal or revision is pending and there is every chance of the conviction to be set aside by the appellate court.
7. In Purshotam Singh's case, it precisely happened that Purshotam Singh was acquitted by the appellate court and yet because the order of dismissal was passed earlier to the final judgment, he had to suffer the penalty of dismissal, unless this Court would have interfered under Article 226.
8. The Giriraj Khatri's case was also referred in which the same view was taken that unless the appeal is decided a civil servant should not be dismissed on account of the earlier conviction.
9. In all these cases, the important feature which weighed was that unless the conviction is finally affirmed there is every chance of acquittal and,, therefore, till that stage arises, a civil servant should not be deprived of his services specially by using proviso to Article 311 Clause (2).
10. In my considered opinion, these authorities cannot provide any guidance for interpreting the date of conviction for the purposes of proviso (ii) of Clause (g) of Section 11.
11. Mr. Mridul referred to the judgment of the Hon'ble Supreme Court in Vidhyacharan Shukla (AIR 1981 SC 547). In Shukla's case, the Hon'ble Supreme Court was pleased to observe that acquittal of the returned candidate, before the decision of the election petition, pending in the High Court, had with retrospective effect made disqualification non-existent even at the date of the scrutiny of the nominations. It was on this bed-rock that the Hon'ble Supreme Court further held that this being the position, the High Court could not at the time of deciding the election petition, form an opinion as to the existence of a non-existent ground and sustained the challenge of the candidate's election.
12. It would thus be obvious that on account of the acquittal of the returned candidate before the decision of the election petition pending in the High Court, which the Hon'ble Supreme Court interpreted to be with retrospective effect, the disqualification became non-existent. Obviously, the High Court could not have utilised the disqualification which was non-existent at the time, the High Court decided the election petition.
13. In my considered view the principles laid down in Shukla's case cannot in any way assist the petitioner in this case for holding that the six years' period should be counted from the date of final judgment and the date of conviction should be treated as the date of final judgment only.
14. Contrary to it, the order of confirmation of conviction instead of making the fact of conviction, non-existent have only affirmed and confirmed it. Therefore, the dictum of law laid down in Shukla's case cannot provide any guidance for interpreting Rule 11 Clause (g) proviso (ii) of the Rajasthan Panchayat Act.
15. The reliance placed by Shri Mridul on Mannilal's case ( : 1SCR798 ) is totally futile. In this case also, it was held that when the appellate order of the High Court sets aside the conviction, acquittal takes effect retrospectively from the dete the conviction was recorded.
16. It would thus be seen that both in Mannilal's case and Shukla's case, the emphasis is on making a factually existing conviction on the date of nomination paper, non-existent, in law, by virtue of the acquittal in appeal. The reason is not far to seek. Once the appellate court holds that the accused is entitled to acquittal, it would be deemed that he was acquitted for all intents and purposes and the conviction recorded by the first court had no effect in law what soever for any purpose. In other words the acquittal of the accused by the appellate court wipes out completely and defaces the conviction earlier recorded by the first court retrospectively.
17. In the instant case, the controversy is only about the date of conviction and undoubtedly the trial court's judgment recorded the conviction and the appellate or revisional court refused to interfere so far as the finding about the conviction is concerned, and has only confirmed it.
18. In that view of the matter, I am firmly of the view that the 'date of conviction' for the purposes of counting the period of six years, as mentioned in Sub-clause (ii) of the proviso to Section 11 of the Rajas than Panchayat Act, is the date when the accused is first convicted by the trial court. The judgment of the Election Tribunal therefore requires no interference and the writ petition is dismissed summarily.