- (1.) This writ petition has been moved challenging an office order dated March 31, 2005 issued by the Secretary, Malda District Primary School Council. The said office order has been annexed as P-2 to the writ petition which is quoted hereinbelow: "Whereas it has been reported by the Sub-Inspector of Schools, Pandua Circle vide memo No.08 dated 04.02.2005 that Mr. Abdul Mannan, H. T. of Ramnagar Primary School under Pandua Circle, P.O. Bairgachi, district Maldah was arrested on 03.11.2004 in connection with Gazole P. S. Case No.217/2004, dated 28.10.2004, under sections 341/323/325/34 IPC and forwarded to S.D.M., Malda Court. Whereas his detention in police custody has exceeded more than 48 hours. Now, therefore, the undersigned places him under suspension in terms of Rule 7(2) as notification No.906-SE(Pry), dated 09.7.2001 with effect from 03.11.2004 until further orders. All concerned are being informed."
(2.) Office order appears to be deemed suspension order in terms of Government notification being No.1493-Edn. dated the 25th July, 1940 (as amended), the contents of the notification is quoted hereinbelow: "14. (i) The appointing authority may place a teacher of a primary school under the Board under suspension, (a) on charges of grave misconduct, serious dereliction of duty or gross insubordination pending receipt of the report under Rule 12 and final disposal of appeal under Rule 13, if any, and, (b) when a case against him in respect of any criminal offence is under investigation or trial. (ii) A teacher of a primary school against whom proceedings have been commenced on a criminal charge but who is not actually detained in custody (that is, a person released on bail) may also be placed under suspension. If the criminal charge is related to the official position of the teacher or involves any moral turpitude on his part, suspension shall be ordered unless there are exceptional reasons for not adopting such a course. (iii) A teacher of a primary school who is detained in custody for a period exceeding 48 hours as a result of the proceeding on criminal charge or otherwise shall be deemed to have been suspended by an order of the appointing authority. A teacher who is undergoing a sentence of imprisonment shall also be dealt with in the same manner. (iv) During the period of suspension, a teacher shall be entitled to: A subsistence grant at such rate not exceeding one-half of the pay of the teacher on the date of suspension as the suspending authority may decide: Provided that where the period of suspension exceeds twelve months, the suspending authority shall be competent to increase the subsistence grant for any period subsequent to the period of the first twelve months by a suitable amount not exceeding fifty per cent of the susbsistence grant allowed during the first twelve months, if in the opinion of the suspending authority, to be recorded in writing the period of suspension has been prolonged for reasons not directly attributable to the teacher; (b) Dearness allowance, if any, at the rate at which it was drawn on the date of suspension or such portion thereof as the suspending authority may direct : Provided that no payment under clause (a) or clause (b) shall be made unless the teacher furnished a certificate to the effect that he is not engaged in any other employment, business, profession or vocation. (v) In addition to the provisions for removal and dismissal from service as prescribed under Rules 12 and 13, a teacher may also be dismissed or removed from service or otherwise punished by the appointing authority with the approval of the Director of Public Instruction, West Bengal, in the event of his conviction in any Court of law. (vi) The teacher shall, however, be reinstated and full pay and allowance for the period of suspension shall be paid to him when he is acquitted by the Court or when he is acquitted by the Court or when he is exonerated from the charges is against him in the report of the District Inspector of Schools or a decision of the Board under Rule 12 or as a result of appeal under Rule 13. When he is awarded a punishment other than dismissal or removal from service, he may be reinstated and such portion of pay and allowance for the suspension period may be allowed as the appointing authority may decide. (vii) Leave shall not be granted to a teacher while he is under suspension or committed to prison. (viii) These rules shall not be applicable in the case of teachers who have been detained under any law relating to preventive detention."
(3.) As would appear from the notification the same has been issued under the powers conferred under section 66 of the Bengal (Rural) Primary Education Act, 1930. The notification which took the shape of rule was issued and/or framed in exercise of powers conferred by sub-section(l) and in particular by clause(P) of sub-section(2) of section 66 of Bengal (Rural) Primary Education Act, 1930. With effect from September 20,1974 West Bengal Primary Education Act, 1973 came into force, which extended to whole of West Bengal. This Act covered rural and urban area both and became a comprehensive one.;