- (1.) The writ petitioner is an assistant primary teacher in a primary school situated under the District Primary School Council, South 24-Parganas. His grievance is non-consideration of his name for the post of Head Teacher of a primary school even after being empanelled by the concerned Council in terms of a memo dated 31st October, 2007. It is specifically contended by the petitioner that his name appears in the top of the panel. However, till date, he has not been given the appointment to the post of Head Teacher.
(2.) Learned Advocate appearing on behalf of the Council draws this Court's attention to the afidavit-in-opposition and submits that the reason why the writ petitioner has not been considered for the post of Head Teacher is that there has been several allegations made against him by several persons. In fact, he submits that the writ petitioner, who was performing his duties as Teacher-in-Charge, was relieved from his responsibilities and one Arun Kumar Chakraborty was appointed as Teacher-in-Charge in his place and stead. After considering the submissions made by the learned Advocates for the parties and upon perusing the pleadings, it appears that the moot question that requires consideration is whether the allegations made against the writ petitioner stand in the way of his appointment to the post of Head Teacher in terms of the memo dated 31st October, 2007, wherein the writ petitioner's name appears to be the first empanelled candidate for the said post. In order to answer this question this Court directed the learned Advocate for the Council to produce the relevant rules where from it would appear that in case there are allegations against an empanelled teacher for the post of Head Teacher, such teacher will not be considered for appointment as a Head Teacher according to his/her seniority. The learned Advocate for the Council has not been able to produce any rules to this effect.
(3.) On the other hand, learned Advocate appearing on behalf of the writ petitioner relies on certain observations made by the Supreme Court in Union of India v. K. V. Jankiraman, 1991 AIR(SC) 2010. Relying on Paragraph 6 of the said judgment he submits that if there were serious allegations against the writ petitioner, the proper course of action on the part of the Council would have been to initiate disciplinary proceedings against the writ petitioner and issue charge-sheet against him and, if required, suspend him from service. He submits that no such steps have been taken against the writ petitioner by the Council, till date. He submits that this goes to prove that the allegations made against the writ petitioner are unfounded and unsubstantiated and cannot stand in the way of his being considered for appointment to the post of a Head Teacher. From the observations made by the Supreme Court in the judgment referred supra, it appears that the issue before the Supreme Court in that matter was with regard to adopting sealed cover procedure relating to promotion of a Government employee. Although this is not the issue before this Court in the instant case, the observations made by the Supreme Court in the context of that case may be reproduced hereinbelow:- "On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned Counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusion Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2)................................................................ (3).............................................................. (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge-sheet filed before the Criminal Court and not before; There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge- memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal.";