JUDGMENT : I.A. No.10620 of 2018 : 1. The matter has been heard through video conferencing with the consent of the learned counsel for the parties. They have no complaint about any audio and visual connectivity. 2. The instant interlocutory application is under Section 5 of the Limitation Act for condoning the delay of 78 days in preferring the instant appeal. 3. This Court, after taking into consideration the reason assigned in the instant application as also considering the fact that instead of dismissing the appeal on the ground of limitation it would be appropriate in the ends of justice to decide the appeal on its merit, accordingly, the delay of 78 days in filing the appeal, is condoned. 4. In the result, the instant interlocutory application is disposed of. L.P.A. No.659 of 2018 : 5. This is an appeal under Clause 10 of the Letter Patent directed against the order/judgment dated 26.06.2018 passed by learned Single Judge of this Court in W.P.(S) No.2971 of 2009 whereby and whereunder the prayer for issuance of a direction upon the respondents to make payment of arrears of salary of the writ petitioner from April 2007 onwards and to extend the period of contract till continuation of the scheme as para 10 of the terms of contract and tenure of National Rural Health Mission, has been declined to be interfered with by dismissing the writ petition. 6. The brief facts of the case which requires to be enumerated be read as hereunder: The writ petitioner had applied in terms of an advertisement issued by the Secretary, Ministry of Health and Family Welfare, Government of India for consideration of candidature of one or the other candidate for appointment as District Programme Manager on contract basis. The writ petitioner was found to be successful. Accordingly, he was offered appointment and called upon to execute a contract/agreement which was executed on 21.11.2005. The writ petitioner was asked to serve Palamau district, where he assumed charge on fixed salary of Rs.22,000/- per month apart from other admissible allowances. The writ petitioner started discharging his duty. The writ petitioner was found to be successful. Accordingly, he was offered appointment and called upon to execute a contract/agreement which was executed on 21.11.2005. The writ petitioner was asked to serve Palamau district, where he assumed charge on fixed salary of Rs.22,000/- per month apart from other admissible allowances. The writ petitioner started discharging his duty. The writ petitioner tendered his resignation on 02.07.2007 but, according to the writ petitioner, before its acceptance, he had withdrawn it on 09.07.2007 and performed his duty by rendering his services but the salary on or after 02.07.2007 has not been disbursed, therefore, he approached to this Court by filing writ petition under Article 226 of the Constitution of India. The State respondent filed detailed counter affidavit enclosing therein a report furnished by the Civil Surgeon of the concerned district stating that the writ petitioner has not discharged his duty since there is no absentee statement which is to be submitted before the Drawing and Disbursing Officer through the Civil Surgeon. The learned Single Judge, relying upon the stand of the State respondent in the counter affidavit, has declined to give any positive direction in favour of the writ petitioner and dismissed the writ petition which is the subject matter of the instant intra-court appeal. 7. Mr. Sumit Prakash, learned counsel for the appellant/writ petitioner has submitted that the learned Single Judge has not properly considered the fact rather solely relying upon the report of the Civil Surgeon about not discharging the duty, the salary on or after 02.07.2007 has been declined to be allowed which according to the learned counsel for the appellant/writ petitioner, cannot be said to be an order passed in right prospective. 8. Per contra, Ms. Neelam Tiwari, learned counsel for the respondents has defended the order passed by the learned Single Judge by taking the plea, as has been taken before the writ Court by way of counter affidavit, that the writ petitioner has tendered his resignation on 02.07.2007, however, he claims that he had withdrawn it on 09.07.2007. 8. Per contra, Ms. Neelam Tiwari, learned counsel for the respondents has defended the order passed by the learned Single Judge by taking the plea, as has been taken before the writ Court by way of counter affidavit, that the writ petitioner has tendered his resignation on 02.07.2007, however, he claims that he had withdrawn it on 09.07.2007. This is the basis upon which he is claiming his salary on or after 02.07.2007 but this fact has been found to be incorrect on the basis of the report of the Civil Surgeon who is the immediate controlling authority of the writ petitioner and has reported on 24.08.2007 and 04.10.2007 to the Superintendent and the OSD of the State Reproductive and Child Health Society that the writ petitioner has not performed any work after March 2007 since he has not attended any meeting during that period. It has been stated in the counter affidavit that the writ petitioner has resigned w.e.f. 01.07.2007. Further stand was taken before the writ Court that vide memo No.1192 (RCH) dated 12.11.2007, an explanation was called for from the writ petitioner for dereliction of duty and for sending self-signed absentee report while, as per the decision of the competent authority, was to be sent through the office of the Civil Surgeon. As such, it has rightly been concluded by the competent authority of the State respondent that the writ petitioner has not performed his duty. According to the learned counsel for the State respondent, if the learned Single Judge has declined to pass any positive direction on the basis of stand of the State basis upon the report of the Civil Surgeon in the capacity of immediate controlling authority, the same cannot be said to suffer from any infirmity and hence, the impugned order requires no interference. 9. This Court, having heard the learned counsel for the parties and having gone through the material available on record as also the finding recorded by the learned Single Judge has found following admitted fact: Admittedly, the writ petitioner was appointed on contract basis by virtue of agreement which was valid for a period of two years commencing from 02.11.2005 on a consolidated fee of Rs.22,000/- per month. It is evident from the agreement, annexed as Annexure-1 to the memo of appeal, in particular the condition No.1 that the consultant shall remain in service of society as District Programme Manager from 21.11.2005 to 20.11.2007. It is further evident from the condition No.6 that the appointment of the consultant has been made purely on contract basis with the further condition that any dispute arising from a contract, which could not be amicably settled between the parties, shall be referred to adjudication in accordance with the Indian Arbitration and Conciliation Act, 1996. The writ petitioner has accepted the terms and conditions of the contract and assumed the charge and started functioning. The writ petitioner has tendered his resignation on 02.07.2007, however, he claims that he has withdrawn that letter tendering resignation by making an application dated 09.07.2007. The writ petitioner claims that he has performed his duty regularly but the salary has not been paid, hence, a writ petition seeking a direction, since he had performed his duty, to the respondent authorities to make payment of the salary for the relevant period. However, learned Single has declined to pass any positive direction relying upon the report of the Civil Surgeon of the concerned district saying that the writ petitioner has not performed his duty. 10. Before proceeding to look into the legality and propriety of the impugned order it requires to refer herein that the proceeding pertaining to the writ as under Article 226 of the Constitution of India is a summary proceeding and being an efficacious and speedy remedy, a proper direction is to be passed by the High Court under Article 226 of the Constitution of India where there is no dispute of fact, however, if there is any dispute of fact, the same would be required to be proved by leading evidence which certainly is not permissible in a summary proceeding like the proceeding of Article 226 of the Constitution of India. The reference of the aforesaid position of law has been made by us taking into consideration the factual aspect involved in this case since the writ petitioner is claiming for salary for the period for which he has performed his duty while on the other hand the Civil Surgeon being the immediate controlling authority has submitted a report that he has not performed his duty, therefore, there is dispute of fact and hence, in such a disputed question of fact the first question would be as to whether writ Court can issue writ of mandamus commanding upon the respondents to make payment of salary? The obvious answer has to be in negative. 11. We have gone through the stand inter alia taken by the respondent authority in the counter affidavit wherein the period of appointment was for a period of two years starting from 21.11.2005 to 20.11.2007 subject to further renewal of one year depending upon the performance and continuation of the scheme. It is evident from the stand taken in the counter affidavit that the writ petitioner was not attending the meeting. Reference of a date, i.e., 20.04.2007, has been made at paragraph 4 thereof. In consequence thereof, a show cause notice was served to the writ petitioner vide letter No.576 (RCH) dated 25.05.2007 and also a report regarding attendance of the writ petitioner was sought for from the Civil Surgeon, Palamau vide letter No.678 (RCH) dated 29.06.2007. In compliance thereof, the Civil Surgeon, Palamau submitted his report vide letter No.1020 dated 24.08.2007 stating that he has not performed his duty as per the direction of the Secretary-cum-Chairman, Jharkhand Health and Family Welfare Society. Absentee report of the District Programme Manager was supposed to be send by the Civil Surgeon by the respective district but the writ petitioner has submitted his self-signed absentee report which is contrary to the direction of the Secretary-cum-Chairman, Jharkhand Health and Family Welfare Society and as per the report submitted by the Civil Surgeon, Palamau there is no official record of the work done by the writ petitioner after March 2007. Further, there is reference of an explanation dated 25.05.2007 made at paragraph 12 of the counter affidavit from the writ petitioner for not attending the meeting, remaining absent without information, sending self-signed absentee report and sending reports from native place, i.e., Patna, which clearly shows about dereliction in duty. Further, there is reference of an explanation dated 25.05.2007 made at paragraph 12 of the counter affidavit from the writ petitioner for not attending the meeting, remaining absent without information, sending self-signed absentee report and sending reports from native place, i.e., Patna, which clearly shows about dereliction in duty. The writ petitioner has submitted a reply on 25.08.2007 admitting that he was not attending meeting and he was sending report from Patna and with regard to not attending the meeting, he has taken plea to the effect that he has informed the same through SMS. It has further been stated that the writ petitioner has been issued with a notice of termination of the contract. In response, he had tendered his resignation on 02.07.2007. The writ petitioner has filed response to the aforesaid counter affidavit stating inter alia therein about withdrawal of his resignation vide letter dated 09.07.2007 and claiming to perform his duty and as such making himself entitled for remuneration for the period for which he has discharged his duty. It is evident from paragraph 11 in response to the statement made at paragraph 22 of the counter affidavit that, he has admitted that he resides in Patna and since Patna being his home town and his family also resides there and he used to visit from there. 12. The condition No.2 of the agreement stipulates in clear terms as under: “the consultant will be based at Palamau, Jharkhand. However, the consultant will be required to travel across the state/district as per the direction of the reporting authority”. Thus, the writ petitioner ought to be based at Palamau, Jharkhand, however, instead of residing at Palamau, he had chosen to reside at Patna which is absolutely contrary to the terms and conditions of the contract. Further, from the various documents, as has been appended with the counter affidavit, it is evident that the claim for performance of his duty has seriously been disputed by the respondent authorities and as such according to our considered view there is serious dispute regarding the factual aspect of the case and, as such, if the writ Court has declined to pass any positive direction, according to us, the same cannot be faulted with. 13. 13. The learned Single Judge has referred the report of the Civil Surgeon, who was the reporting authority of the writ petitioner, denying the claim of the performance of duty after the month of March 2007. It has also been recorded that the writ petitioner has not turned up to the State Headquarters for official meeting, remained absent without information and had sent self-signed absentee report instead of getting it signed through Civil Surgeon, who was the competent authority to do the same, for which a show cause notice was issued. Taking into consideration all these aspects of the matter, the learned Single Judge has dismissed the writ petition with a liberty to the writ petitioner to approach the competent authority for payment of admissible dues which, according to us, does not suffers from an error. 14. Accordingly, the instant appeal fails and stands dismissed. 15. Pending interlocutory applications, if any, also stands disposed of.