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2011 DIGILAW 594 (JK)

Sikander Lal v. State

2011-10-31

MUZAFFAR HUSSAIN ATTAR

body2011
1. Petitioner was engaged as ReT vide order dated 30th Oct. 2004. He was initially engaged for a period of two years and it was provided in the engagement order that the said period will be later on extended for further three years subject to satisfactory performance of the petitioner in terms of the conditions mentioned in parargraph 3 of the engagement order. 2. The petitioner was arrested along with other persons on 22nd Nov. 2004 in case FIR No. 371/04 for allegedly having committed offences U/s 302, 34 RPC by Police Station Rajouri. The petitioner in view of his arrest could not perform his duties. The Zonal Education Officer (ZEO) in pursuance to the directions of Chief Education Officer (CEO) Rajouri terminated the services of petitioner for having remained unauthorisedly absent from duty vide communication dated 16.02.2005. The petitioner was send up for trial and the Id trial judge vide its judgment dated 21st of Dec. 2009 while giving benefit of doubt to the accused, acquitted him of charges leveled against him. 3. The petitioner filed this writ petition seeking quashment of the termination order interalia on the ground that he was prevented from discharging his duties because of arrest in the aforementioned criminal case; and that he did not remain unauthrisedly absent from duty out of his own volition. 4. The respondents have filed objections/reply affidavit, in which it is stated that the petitioner was engaged initially for about two years and has remained unauthorisedly absent from duty so it had become necessary to terminate his services. 5. Heard Id counsel for parties. Considered the matter. 6. Ld. counsel for parties argued in tune with their respective pleadings. 7. Ld. counsel for respondents referred to and relied upon the DB Judgment of this court in case titled Ab. Aziz v. State and ors (LPASW No. 138/08 decided on 03.05.2011) and submitted that the case on hand is covered by the said judgment, thus, merits dismissal. 8. The petitioner who was selected on the basis of his merit as ReT in terms of order dated 30th Oct. 2004 had to initially continue in service for two years which period was extendable by further three years. The petitioner's services could be extended by the authority after entering satisfaction that his performance was satisfactory as per the requirement of paragraph 3 of the engagement order. 9. 2004 had to initially continue in service for two years which period was extendable by further three years. The petitioner's services could be extended by the authority after entering satisfaction that his performance was satisfactory as per the requirement of paragraph 3 of the engagement order. 9. The petitioner was prevented from discharging duties w.e.f 22nd Nov. 2004 on which date he was arrested in case FIR No. 371/04. He continued to remain in police/judicial custody until such time he was acquitted from charges by the Court of competent jurisdiction vide its judgment dated 21st Dec. 2009. 10. The moment, the petitioner was engaged on the basis of merit, as ReT, a right to continue in service under the ReT/SSA Scheme vested in him. His right to continue in service was guaranteed for five years, however, after completion of two years service, his performance was to be adjudged on the conditions mentioned in para-3 of the engagement order. After completion of five years service he would be absorbed as General Line Teacher. 11. In the face of terms and conditions of engagement order, right to continue and to be absorbed as General Line Teacher in the government services had accrued in favour of the petitioner. The petitioner was not terminated from service on the ground that his performance was not up to mark. In the facts and circumstances of this case his performance could not be adjudged as he was arrested in connection with the aforementioned FIR. The petitioner did not absent himself from duty intentionally but was prevented to perform the duty by the state authorities itself when he was arrested in a case and has now ultimately been acquitted from the charges. 12. In view of the nature of charge(s) leveled against him, he was not released on bail. The engagement order which authorized him to continue for five years subjected to adjudging his performance after completion of two years of service in the facts and circumstances of this case, could be seen only after he would complete two years of service. 13. The petitioner's right to continue and get absorbed in service as General Line Teacher is valuable right in law, which could not be taken away in the manner it has been done in this case and could be taken away only on the terms and conditions/grounds mentioned in the scheme and in the engagement order. 13. The petitioner's right to continue and get absorbed in service as General Line Teacher is valuable right in law, which could not be taken away in the manner it has been done in this case and could be taken away only on the terms and conditions/grounds mentioned in the scheme and in the engagement order. 14. The petitioner having been acquitted from all charges, cannot be said to be criminal, thus, his claim is to be considered on the basis of the mandate of the scheme as also on the terms and conditions of the engagement order. 15. Petitioner has been terminated from service for having remained unauthorizedly absent from duty. Being unauthorizedly absent would mean that a person who is in a position to attend to duty, has without any just cause absented himself. A free person not disabled by any factual or legal infirmity, if does not report for duty, can be said to have remained unauthorisedly absent. 16. The petitioner was arrested, thus in the facts of this case it cannot be said that he remained unauthorizedly absent from duty. The basis of termination order is thus knocked out. 17. The judgment referred to and relied upon by Mrs. N. Goswami, Id counsel for respondents proceeds on different facts, in that case the Hon'ble D.B stated that engagement of petitioner was only for two years and that he was not in position on the date of filing of the writ petition and his period of engagement was not extended. 18. In the present case initial period of two years of engagement had not expired when he was arrested. His right to continue in service subsisted on the day he was arrested. 19. Petitioner is not seeking direction for engagement but he is praying for quashment of termination order. The judgment in Ab. Aziz's case proceeds on it's own facts. 20. For the above stated reasons this petition is allowed in the following manner; a) By issuance of writ of certiorari, the termination order No. ZEO/P/RET/1115-18 dated 16.02.2005 is quashed. b) By issuance of mandamus the respondents, more particularly the respondent No. 2 to take decision in the case in accordance with the mandate of scheme as also in terms of the observations made in this judgment within a period of eight weeks from the date copy of this order is served.