Mitum Gamlin Vs the State of Ap and 4 Ors.

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Page No.# 1/9

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GAHC040007022022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) (ITANAGAR BENCH)

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Case No. : WP(C)/209/2022

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Mitum Gamlin Son of Shri Yommi Gamlin, Resident of Village Sikrijo of Laggi Gamlin, PO Yomcha, PS Yomcha, District West Siang, AP Pin 791111

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VERSUS

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THE STATE OF AP and 4 Ors. Represented by the Chief Secretary to the Govt. of Arunachal Pradesh, Itanagar. Pin 791001 2:The Secretary Age: 0 Occupation : Department of Education

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Govt. of Arunachal Pradesh Itanagar PIN 791001 3:The Director Age: 0 Occupation : SSA (Sarva Siksha Abhiyan). State Mission Itanagar Arunachal Pradesh PIN 791001 4:The Director Age: 0 Occupation :

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of Elementary Education Govt. of Arunachal Pradesh Itanagar PIN 791001 5:The Deputy Commissioner cum District Project District Director Age: 0 Occupation : SSA District Mission Yupia District Papumpare Arunachal Pradesh PIN 79100

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Advocate for the Petitioner : A K Purkayastha, Chorpok Modi,Uttam Deka,1 S Sharma

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Advocate for the Respondent : GA (AP), Taba Tagum,Tagum Jamoh,SC (Education)

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BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

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ORDER

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Date : 02.04.2025

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Heard Mr. A.K. Purkayastha, learned counsel for the petitioner. Also heard Mr. N. Lowang, learned Senior Govt. Advocate appearing for the respondent nos.1 and 5; and Mr. R. Koyu, learned counsel appearing on behalf of Mr. T. Tagum, learned standing counsel for the Education Department, respondent nos.2, 3 and 4.

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By filing this writ petition under Article 226 of the Constitution of India, the petitioner has assailed the Order No. ED/PP/Extt-442/Voll-III/201011/ dated 25.06.2014, by which the service of the petitioner was terminated with immediate effect under the Central Civil Service (Temporary Service) Rules, 1965. The petitioner has also assailed the Speaking Order dated 02.12.2021, passed by the DC-cum-DPD, ISSE, Papum Pare District, Yupia.

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The learned counsel for the petitioner has submitted that the petitioner was serving at the relevant time as an Assistant Teacher of Government Primary School, Rushi. The service of the petitioner was terminated by an order dated 25.06.2014 on charge that the petitioner was absenting from his place of posting and he was accused of dereliction of duty. Accordingly, the learned counsel for the petitioner has submitted that once the petitioner is sought to be terminated from service on specific charges, it was incumbent on part of the respondent authorities to hold a departmental proceeding. The second submission made by the learned counsel for the petitioner is that the departmental counsel had sought for his consent for an adjournment on the grounds that affidavit-in-opposition could not be filed and therefore, he is not ready for hearing. The other submission of the learned counsel for the petitioner is that in the earlier round of writ petition by the petitioner, an order dated 20.07.2018 was passed by this court in WP(C) 88(AP)/2017, whereby this Court took cognizance of the grievance of the petitioner that as the petitioner has been terminated from service, he should be given an opportunity to place the matter before the appropriate competent authority to consider his grievances and accordingly, the writ petition was disposed of with a direction of allowing the petitioner to file a representation within 7 (seven) days from the date of the order and the Deputy Commissioner -cum- District Project Director, Education Department, Papum Pare was directed to consider and dispose of the same in accordance with law. Accordingly, it was submitted that the consequent order, which was passed by the said authority on 02.12.2021 was not in accordance with law and the grievances of the petitioner was not addressed.

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The learned counsel for the petitioner has also submitted that from the day the petitioner had joined the Government Primary School, Rushi, he was

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not provided with appropriate facilities and the place lacked electricity, drinking water facility and kitchen, which led to his depression and that despite several representations, the said facilities were not provided to the petitioner.

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It is further submitted that as the respondents have not filed any affidavit, the respondents be directed to file their affidavit and therefore, the matter ought not to be disposed of at this stage.

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Considered the submissions made by the learned counsel for the petitioner and also perused the writ petition and the documents appended thereto.

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In the termination order dated 25.06.2014, it has been mentioned that as per the School Visit Report submitted by the SMC of Government Primary School, Rushi/Cluster Resource Centre Coordinator/Circle Officer, Sangdupota dated 02.07.2013, 17.04.2014 and 23.12.2013 substantiated that the petitioner was absenting from his place of posting without authorization of the competent authority since 09.07.2013, which had hampered the academic functions of the school. It is also mentioned that the petitioner was issued a show-cause notice as to why his case should not be recommended for termination from the post of Assistant Teacher (SSA). As per the said order, in his reply submitted by the petitioner on 17.01.2014, there was lack of electricity, drinking water facility and kitchen and therefore, the petitioner suffered from depression. It is further mentioned that as per the reports, the petitioner has not conducted annual examination of 2014, which had hampered the academic life of many students and accordingly, it was held that there was clear violation of the contract agreement and therefore, as the appointing authority, the Deputy Commissioner -cum- District Project Director, Papum Pare District had terminated the service of the petitioner with immediate effect under the Central Civil Service (Temporary

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Service) Rules, 1965.

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In one of the representations submitted on 25.07.2018, the petitioner has admitted that after joining Government Primary School, Rushi he was unable to perform his duty on the ground of his prolonged illness and he has admitted that while he was teaching in the school, he was suffering from mood disorder and therefore, he was compelled to leave the school for a treatment allegedly by giving verbal information to the Chairperson of the School Management Committee. He has also admitted that he was compelled to leave the school for a few days for check-up when his health deteriorated and therefore, he could not inform the controlling officer for more than 12 (twelve) days of his absence. It is also admitted that as he was suffering from mood disorders since April, 2012, he could not resume his duties and could not avail any kind of leave except 12 (twelve) days of casual leave from his controlling officer. In an appeal for review of the termination order submitted on 25.09.2014, the petitioner has stated that rigorous traditional puja was conducted to boost up his lost mental and moral strength to free himself from suffering of agony and anxiety which led to his extreme depression since failure to qualify in all attempts of APPSCC Examination from the year 2003 onwards and then he had also searched for traditional priests, mullahs and tantric priests for his cure. The petitioner has also referred to the medical condition of his father, chronic sickness of his minor son, for which he had to take his father and son for treatment at Delhi and Itanagar respectively and thereafter, he was transferred to the Government Primary School, Rushi. As he was not provided with the appropriate facilities, the petitioner started to come from Itanagar by a motorcycle of his brother-in-law covering more than 60 kilometers up and down and due to weather conditions, the petitioner was prevented from carrying out

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his duties and as the APPSCC Examination, 2013-14 was coming near, the petitioner was compelled to stay in Itanagar. The petitioner has further stated that these factors had destabilized his mental ability and derailed his power of vision and reasoning.

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It may be mentioned that in the appeal for review of termination order, which was filed on 25.09.2014, the petitioner has stated that he had to take his father for treatment at Delhi. However, in the reference to documents annexed, the petitioner has appended the documents of his father-in-law's treatment in Delhi.

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In the speaking order dated 02.12.2021, it has been clearly mentioned that the vacancy, which arose from the termination of the petitioner from his contractual post of Assistant Teacher (A), PRT under SSA, was filled up after his termination and no vacancy was left for reinstatement. The authorities have also mentioned that as the contractual service of the petitioner was not renewed in the year 2014, he had no legal right to remain in service without extension of his contractual service.

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As per the provisions of Rule 5(1) of the CCS (Temporary Services), Rules, 1965, a service of a temporary government servant is liable to be terminated at any point of time by a notice in writing given either by a government servant to the appointing authority or by the appointing authority to the government servant and the period of notice prescribed is 1 (one) month. Moreover, under the provisions of section 14 (d) of the Specific Relief Act, a contract which is in its nature determinable, cannot be specifically enforceable. Therefore, as the service of the petitioner was terminated, at best the petitioner would be entitled to the wages/salary for the one month notice period. The contractual appointment of the petitioner, having not been extended after 2014

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and in the meanwhile, the service of the petitioner has been terminated on 25.06.2014, the service of the petitioner cannot be restored back.

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It is not the case of the petitioner that the condition of service in the school has changed or that the petitioner has come out from the depression for which he was admittedly suffering. Moreover, when the allegation against the petitioner is that he did not conduct academic examination in the year 2014 and when the petitioner has already admitted in his representation that he has not attended school for some period of time, the absence without prior intimation to the competent authority or availing of the regularization of leave post-facto, the termination of the service of the petitioner on the ground of non-extension of the contract cannot be interfered with at this stage after 11 (eleven) years of termination of service. Moreover, the non-extension of the contractual service of the petitioner was never put to challenge by the petitioner.

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In the earlier round of writ petition, when this Court had disposed of the proceedings of WP(C) 88(AP)/2017 by order dated 20.07.2018, the termination was not interfered on the ground that the departmental proceedings against the petitioner was not initiated. Rather, the petitioner was only permitted to submit a representation to be disposed of by the Deputy Commissioner -cum- District Project Director, Education Department, Papum Pare district. The said authority has passed a speaking order, wherein, it has been mentioned that the contractual service of the petitioner was not renewed after the year 2014. Moreover, in this writ petition, as no prayer for extension of the contract service for the period beyond 2014, the petitioner has not been able to make out a case for reinstating him in service and to give all consequential benefits from 25.06.2024, the date of his termination till his reinstatement.

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In respect of the submissions made by the learned counsel for the petitioner that he had given a consent for adjournment, the Court would like to state that whatever transpires between the counsel for two sides is between them and the consent given by the counsel for one party would not bind the Court to grant an adjournment just because the parties have made an arrangement for adjournment. Secondly, on an impression that the matter would not be heard, it is not a ground for adjourning the matter. If that was the impression, then the natural question is why did the learned counsel for the petitioner has travelled with his chamber colleagues from Guwahati to Yupia which is 330-340 km.

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In this case, the service of the petitioner was terminated in the year 2014 and moreover, since 2014, his service was not extended. This is the second round of litigation by the petitioner and the present writ petition was filed on 13.06.2022. For more than 2 (two) years, the respondents have not filed an affidavit-in-opposition. That status of the case would not dissuade the Court from hearing the matter with the intent of its disposal. Accordingly, the objections made by the learned counsel for the petitioner for not taking up the matter for hearing is repelled and rejected.

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This Court in the case of Sultanul Arifin Ahmed v. State of Assam & Ors., (2012) 0 Supreme (Gau) 571 : (2012) 5 GLR 118 : 2012 (3) GLT 397 has held that even in case of temporary Govt. employee, the service can be dispensed with on the basis of the performance and that while adjudging such performance or taking any action on the basis of such performance, no notice is required to be given to a temporary Govt. employee.

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The Court, having not found any merit in the matter, the writ petition stands dismissed.

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18. Under the circumstances, there shall be no order as to cost.

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JUDGE

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Comparing Assistant

Mitum Gamlin v. the State of Ap and 4 Ors.

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Mitum Gamlin v. the State of Ap and 4 Ors.

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