IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

                        Mr. Justice Muhammad Imman Ali

             Mr. Justice Hasan Foez Siddique

Mr. Justice Mirza Hussain Haider Mr. Justice Abu Bakar Siddiquee

CIVIL PETITION FOR LEAVE TO APPEAL NO.3832 OF 2017.

(From the judgment and order dated 30.08.2015 passed by the High Court Division in Writ Petition No.1132 of 2011.)

Bangabandhu  Sheikh  Mujib  Medical   Petitioners. University  represented  by  its  Vice

Chancellor and others            :

=Versus=

Dr. Zahidul Haq                  : For the Petitioners      :

For the Respondent       :

Respondent.

Mr.  Tanjib-ul  Alam, Advocate  instructed  by  Mr. Zainul Abedin, Advocate-on- Record.

Mr.  Probir  Neogi,  Senior Advocate  with  Mr.  A.M. Aminuddin,  Senior  Advocate and  Mr.  Mehadi  Hasan Chowdhury,  Ms.  Anita  Gazi Rahman, Advocate  instructed by  Mr.  Md.  Taufique Hossain,  Advocate-on- Record.

Date of hearing and judgment  : 05.11.2018

J U D G M E N T

Hasan Foez Siddique, J: This petition for leave to  appeal  is  directed  against  the  judgment  and order  dated  30.08.2015  passed  by  the  High  Court Division in Writ Petition No.1132 of 2011 making the Rule absolute.

The facts, in brief, are that while the writ petitioner had been serving as Associate Professor in  the  Sylhet  M.A.G.  Osmani  Medical  College  an employment  notification  was  published  for

appointment in the post of Professor by the Bangabandhu Sheikh Mujib Medical University (the BSMMU). In the said notification, the wanting experience, amongst others, was that the applicant must have five years experience in performing the functions as Associate Professor of that particular subject regularly or teaching experience in equal status. The writ petitioner, finding him qualified for the post, filed application stating his educational qualifications, length of experience and other particulars. Following the regular recruitment procedure, he was selected as a Professor of Surgery on 10.09.2003 by the BSMMU authority. Since the writ petitioner was in government service he filed application addressing the Secretary, Ministry of Health and Family Welfare on 22.09.2003 tendering his resignation with effect from 30.09.2003. Pursuant to his application, his resignation was accepted with effect from 30.09.2003. Getting appointment, he joined in the BSMMU on 01.10.2003. The writ petitioner had resigned from his government job without taking any financial benefit. The appointment of the writ petitioner was made in strict and full compliance of the provisions followed for appointment of  a Professor of the

BSMMU which was approved by the Syndicate of the BSMMU in its 16th meeting held on 03.03.2004. The service of the writ petitioner was confirmed by the Syndicate of the BSMMU on 13.08.2004 in its 21st meeting. The writ petitioner, at the time of filing application for recruitment, did not suppress anything with regard to his qualifications, experiences and publications etc. At the time of appointment of the writ petitioner, he had the highest number of post graduation degrees and he was the only person who had fellowship in colorectal surgery from the National University Hospital, Singapore. The writ petitioner earned reputation as one of the best doctors of the country. Due to his unblemished service record and ability, he was given the charge of Course Co-ordinator of all Post Graduate Courses and the Residency Programmes run by the Surgery Department of the BSMMU. During his entire service career, no question was raised with regard to his ability and competency as a doctor and a teacher. In the absence of the Chairman of the Surgery Department, he was given the charge of Chairmanship on many occasions. He was also a member of the Departmental Examination Committee. While the writ petitioner was discharging his duties with highest level of satisfaction of the

BSMMU authority, all on a sudden, he was served with a notice vide an office order dated 30.06.2010 under Memo No. BSMMU/2010/7060 to explain as to why his appointment in the BSMMU would not be cancelled. The writ petitioner was asked to submit his reply, if any, within 7 days from the date of receipt of the order. Without considering the reply, the BSMMU authority vide the impugned order dated 22.12.2010 under Memo No.BSMMU/2010/12315 had terminated the writ petitioner from service in the name of ‘cancellation of appointment’ allegedly on the basis of the decision of the Syndicate dated 22.12.2010. Challenging the order of cancellation of appointment dated 22.12.2010 the writ petitioner, filing writ petition, obtained Rule Nisi.

The writ respondent Nos.1-3 contested the Rule contending that on 25.06.2003, the BSMMU authority published an advertisement for appointment of suitable candidates for the several vacant posts under the BSMMU. On 10.09.2003, the writ petitioner was selected for the post of Professor of Surgery Department by the then administration of the BSMMU. Subsequently, it was revealed that the writ petitioner had no necessary experience and qualifications for such appointment and his appointment to the post of Professor was secured not through meeting the relevant recruitment criteria but through some other means which does not necessarily make his appointment legal and hence his appointment was a nullity. During the past Care-taker Government, allegation of corruption, irregularities in purchase and recruitments were brought against the then administration of the BSMMU which were referred to the then Vice Chancellor of the University by the office of the Head of the care-taker government through the concerned Ministry. The BSMMU authority constituted a 7(seven) members Enquiry Committee vide Memo dated 06.05.2007. The Enquiry Committee, holding inquiry, submitted report on 26.07.2007 stating that the writ petitioner failed to meet the required experience to be appointed as professor and hence proper steps as per law should be taken against the appointment process of the writ petitioner. Thereafter, another 6(six) members Committee was formed by the then administration of the BSMMU dated 05.08.2007. The Committee found that the writ petitioner did not meet the experience required to be appointed in the post of professor. Subsequently, the Parliamentary Standing Committee of the Ministry of Health and Family Welfare decided to hold

enquire into the allegations of corruption and irregularities committed in the BSMMU and submit detailed report before the Parliamentary Standing Committee. A Sub Committee, holding inquiry, submitted a detailed report before the Standing Committee on 12.01.2010 stating, inter alia, that in the appointment process the relevant rules and regulations had not been followed. The writ petitioner was appointed despite his lacking of required experience for  appointment. In that report, it was recommended that the appointment of writ petitioner should be cancelled since he did not hold necessary experience at the time of appointment as Professor of Surgery. On 16.05.2010 in the 38th Syndicate Meeting of the BSMMU, the authority decided to take necessary steps and to that end, writ petitioner was served with a show cause notice through the Office Order bearing Memo No.BSMMU/2010/7060 dated 30.06.2010 asking him to furnish reasons within 7(seven) days as to why his appointment in the post of Professor of Surgery should not be cancelled in view of the report of the Committee. The writ petitioner upon receiving the said show cause notice submitted his reply on 04.07.2010 and on perusal of the same the Syndicate, in its 41st meeting held on 22.12.2010, decided to cancel the appointment of the writ

petitioner in the post of Professor by the impugned letter dated 22.12.2010. On 16.01.2011, upon receipt of the said cancellation letter from the university, the writ petitioner filed a Review petition to the office of Chancellor of the BSMMU through writ respondent No.3 instead of the Vice Chancellor as required under section 55 of the Act, 1998. Thereafter, the writ petitioner filed the instant writ petition and obtained Rule which was liable to be discharged.

The High Court Division by the impugned judgment and order made the said Rule absolute. Against which, the BSMMU has filed this petition for leave to appeal.

Mr. Tanjib-ul Alam, learned Counsel appearing for the writ respondent-petitioner, submits that at the time of appointing the writ petitioner he had no requisite experience to be appointed in the post of Professor of the University and the then BSMMU authority most illegally appointed him as Professor of the surgery department, thus, the BSMMU authority rightly cancelled his appointment, the High Court Division erred in law in making the Rule absolute.

Mr. Probir Neogi, appearing with Mr. A.M. Aminuddin, Mr. Mehadi Hasan Chowdhury, Ms. Anita Gazi, learned Counsel for the respondent, submits

that the writ petitioner-respondent had requisite qualifications and experiences to be appointed as professor of the department of the BSMMU and the BSMMU auhority, being satisfied with the same and complying with all legal formalities, appointed the writ petitioner in the said post. Moreso, in the advertisement, it was mentioned that the terms and conditions as mentioned in employment notification would be relaxed for the candidate having special qualifications, the High Court Division rightly made the Rule absolute.

From the papers available in the record, it appears that the BSMMU authority issued employment notification under memo No.we Gm Gg Gg BD/2003/35/32 dated 24.06.2003 inviting application for appointment in the post of Professors and in some other posts. In the said notification it was specifically mentioned, “ we‡kl †hvM¨Zvm¤úbœ cªv_©x‡`i †¶‡Î †h †Kvb kZ© wkw_j‡hvM¨|” For getting appointment in the post of professor of the BSMMU the required qualifications, experiences and other particulars as provided in the notification were as follows:

Òe½eÜz †kL gywRe †gwWK¨vj wek¡we`¨vjq Bangabandhu Sheikh Mujib Medical University

kvnevM, XvKv, evsjv‡`k|

Aa¨vcK(professor)

K)               wk¶vMZ †hvM¨Zvt wK¬wbK¨vj welqmg~‡nt (1) GgweweGm A_ev mggv‡bi wWM«x (2) wbw`©ó wel‡q Gg, wW A_ev Gg, Gm(e½eÜz †kL gywRe †gwWK¨vj wek¡we`¨vjq A_ev

XvKv wek¡we`¨vjq)/FCPS(Fellowship of the College of Physicians and Surgeons of Bangladesh)/MRCP, FRCS,MRCOG DMRT/DRMD/DPM/M/M.Phil A_ev mggv‡bi wK¬wbK¨vj †cvóMª¨Ry‡qU qualification GB postgraduate †hvM¨Zv Aek¨B evsjv‡`k †gwWK¨vj I †W›Uvj KvDwÝj Ges wek¡we`¨vj‡qi G¨vKv‡WwgK KvDwÝj KZ©„K D‡j¬wLZ gvbmg~n A_ev mggv‡bi ewjqv ¯^xK…Z nB‡Z nB‡e|

Dwj¬wLZ gvbmg~‡ni /mggv‡bi postgraduate Qualification _vKv Acwinvh© ewjqv we‡ewPZ nB‡e| Ph.D A_ev D.Phil wWMªx clinical

qualification ewjqv MY¨ nB‡e bv wKš‘ AwZwi³ qualification wnmv‡e we‡ewPZ nB‡Z cv‡i| GKwUi AwZwi³ m¥vZ‡KvËi wWMªx‡K AwZ i³ †hvM¨Zv wnmv‡e we‡ePbv Kiv nB‡e|(underlined by us)

‡ewmK welqmg~‡n (Basic subjects ) t(1) MBBS A_ev mggv‡bi wWMªx, (2) wbw`©ó wel‡q M.Phil, MSC, Ph.D A_ev D.phil wWMªx A_ev †mB wel‡q mggv‡bi postgraduate qualification hvnv wek¡we`¨vj‡qi G¨vKv‡WwgK KvDwÝj Øviv ¯^xK…Z nB‡Z nB‡e|

L)               wbw`©ó wel‡q wbqwgZ cuvP erm‡ii mn‡hvMx Aa¨vcK A_ev mgvb c`gh©v`vq wk¶KZv|

         (underlined by us)

M)               Kgc‡¶ mvZwU M‡elYv cªKvkbv| cªKvkbvmg~n wek¦we`¨vj‡qi G¨vKv‡WwgK KvDwÝj A_ev ZrKZ©„K wb‡qvMK„Z †Kv‡bv KwgwU Øviv m¦xK…Z †`kx ev we‡`kx ˆeÁvwbK journal- G hvnvi g‡a¨ b~¨bc‡¶ 2(`yB) wU cªKvkbv Bm‡WKm †gwWKvm-G, nB‡Z nB‡e| mvZwUi g‡a¨ wZbwU cªKvkbv Av‡e`b Kivi Zvwi‡Li c~e©eZx wZb erm‡ii g‡a¨ nB‡Z nB‡e| cªKvkbvmg~‡ni g‡a¨ Kgc‡¶ wZbwU‡Z Av‡e`bKvix/Av‡e`bKvixwb‡K First author nB‡Z nB‡e|

N)                 wbg¥wjwLZ welq mg~n‡K AwZwi³ †hvM¨Zv ewjqv MY¨ Kiv nB‡et (1) c~e©eZ©x cix¶vmg~‡n D”PZi wefvM, (2) †gavZvwiKvq ¯nvb, (3) wewfbœ wel‡q Ab©vm m¤^i, (4) cix¶vq wbqwgZ cvk|Ó

From Annexure ‘E’ to the writ petition, it

appears that at the time of filing application for getting appointment as professor of surgery, the writ petitioner had following educational qualifications and experiences:

Educational qualifications:

Higher Trainingt

Experiences as Associate Professor:

1.Associate Professor (current charge)   from 01.03.1998 to 31.05.1998

2.Associate Professor (Current charge) Bangabandhu Sheikh Mujib Medical University

 (On deputation)M.S. Thesis part from 01.06.1998 to 31.05.1998

3.Associate Professor

Sylhet  M.A.G.  Osmani  Medical  College  from  09.05.2001  to 30.09.2003

Publications:

He  had  eleven  publications  at  the  time  of filing  application.  Out  of  them,  two  were published in index journal, three were published within  previous  3  years.  He  was  first  author  in nine publications.

It is relevant here to mention that Bangladesh Medical  and  Dental  Council  by  a  letter communicated  under  memo  No.  we  Gg  GÛ  wWwm/112  dated 17.07.2012  intimated  the  Secretary,  Ministry  of Health  and  Family  Welfare  that  performance  of  a

teacher in current charge should be treated as experience of teaching and the same should be effective for getting appointment and promotion of a teacher. The contents of the said letter runs as follows:

Òevsjv‡`k wPwKrmv I `šÍ wPwKrmv cwil` BANGLADESH MEDICAL & DENTAL COUNCIL

203,Shaheed Syed Nazrul Islam Sarani,(86, Bijoy Nagar)Dhaka-1000

Phone:9555538,9555236,716853 Fax:880-9555236

E-mail:bmde mh@bangla.net Website:www.bmdc.org.bd

¯gviK bs-weGg GÛ wWwm/112  ZvwiL17/07/2012, 24/06/2015 eivei-

gvbbxq mwPe

¯ev¯’¨ I cwievi Kj¨vY gš¿Yvjq MYcªRvZš¿x evsjv‡`k miKvi evsjv‡`k mwPevjq, XvKv|

`„wó AvKl©Yt Dc-mwPe, wPwKrmv wk¶v kvLv, ¯ev¯’¨ I cwievi Kj¨vY gš¿Yvjq, evsjv‡`k mwPevjq, XvKv|

Rbve,

‡gwWK¨j Ges †W›Uvj wPwKrmv wk¶v cªwZôv‡b wk¶KM‡Yi PjwZ `vwq‡Z¡ wb‡qvwRZ Kg©Kvj cªms‡M evsjv‡`k †gwW‡Kj GÛ †W›Uvj KvDw݇ji M„nxZ wm×všÍ Avcbvi m`q AeMwZi Rb¨ DׄZ nB‡j- wm×v‡šÍ ÒPjwZ `vwq‡Z¡ wb‡qvwRZ wk¶KM‡Yi Kg©Kvj wk¶KZvi AwfÁZv wnmv‡e MYbv Kiv nB‡e Ges Zuvnv‡`i wb‡qvM I c‡`vbœwZi †¶‡Î Zvnv Kvh©Ki nB‡e|Ó PjwZ `vwqZ¡ c«`v‡bi †¶‡Î wk¶vMZ †hvM¨Zv Ges AwfÁZv‡K we‡ePbvq Avbvi Rb¨ wb‡`©kµ‡g Aby‡iva RvbvBqv †cªiY Kiv nB‡e|

¯evt/-A¯có

17.07.2011

     evsjv‡`k †gwW‡Kj GÛ †W›Uvj KvDwÝj

ZvwiLt17/07/2011

¯gviK bs-weGg GÛ wWwm/112(K)

Abywjwc m`q AeMwZi Rb¨-

1| Aa¨vcK Wvt †gvt kvidzwÏb Avn‡g`, gnv-mwPe, evsjv‡`k †gwW‡Kj G‡mvwm‡qkb, weGgG feb, XvKv|

¯ev¶i

A¯có

    evsjv‡`k †gwW‡Kj GÛ †W›Uvj KvDwÝj|Ó

From the papers produced by the parties it appears that for holding enquiry over the matter and some other matters an Inquiry Committee was formed in the syndicate meeting of the BSMMU held on 02.08.2007 with the following members:

Ò1| Wvt †gvt kvnRvnvb wek¡vm, gnv-cwiPvjK, ¯ev¯’¨ Awa`ßi, mfvcwZ, gnvLvjx| 2|Aa¨vcK Wvt gweb Lvb, †Kvlva¶¨, weGmGgGgBD- m`m¨

3|Aa¨vcK Wvt †gvt Aveyj d‡qR, Aa¨¶, XvKv ‡gwWK¨vj K‡jR-m`m¨

4|Wvt †gvt BmnvK Lvb Dc-cwiPvjK, wmGgGmwW(¯ev¯’¨ I cwievi m`m¨ Kj¨vY gš¿Yvjq KZ…©K g‡bvwbZ †cªvwKDi‡g›U we‡klÁ)

5|Rbve †gvt Bd‡Zdvi Avjg, Dc-cix¶v wbqš¿K, weGmGgGgBD -m`m¨

6|Rbve †gvt Bd‡ZLvi Avjg, Dc-cix¶v wbqš¿K, weGmGgGgBD -m`m¨ Ó

The aforesaid committee, holding inquiry,

submitted report over the dispute with the following words:

ÒeZ©gvb ch©v‡jvPbv KwgwU wek¡we`¨vj‡qi Rb¥j‡Mœ 30/04/1998Bs Zvwi‡L RvixK…Z ZrKvjxb wfwm AavcK Gg, G Kv‡`ix g‡nv`‡qi ¯ev¶‡i GKwU Awdm Av‡`‡k †`L‡Z cvq †h, mv‡eK AvBwcwRGgGÛAvi Gi 43 Rb wk¶K‡K Zuv‡`i K…Z c~e© PvKzixi PjwZ `vwqZ¡ Ges fvicªvß c‡`i AwfÁZv‡K we‡ePbv K‡i ¯e-¯e c‡` GB wek¡we`¨vj‡qi PvKzix‡Z wbqwgZ Kiv n‡q‡Q (mshyw³-01)| 1998 Bs mv‡j wbqwgZK…Z 43 Rb wk¶‡Ki g‡a¨ A‡b‡KB cieZ©x

D”PZi c‡` wb‡qvM A_ev c‡`vbœwZi ¶Î ¯e-¯e wbqwgZ c‡` wba©vwiZ mg‡qi AwfÁZv AwR©Z bv nIqv m‡Ë¡I Zuviv cieZ©x D”PZi c‡` c‡`vbœqb A_ev bZzb wb‡q M jvf K‡i‡Qb| G‡Z cªZxqgvb nq †h, G mKj wk¶‡Ki c~e©eZ©x PjwZ A_ev fvicªvß c‡`i P Kzixi AwfÁZv‡K MYbvq G‡b Zuv‡`i‡K c‡`vbœqb A_ev bZzb wb‡qvM †`qv n‡q‡Q weavq c~e©eZ©x mg‡qi Abyiyc A‡±vei-2001 Bs Gi cieZ©x mg‡q wb‡qvM cvIqv wk¶KM‡biI PjwZ `vwqZ¡ A_ev fvicªvß

c‡`i AwfÁZv‡K MYbv Kivi welq we‡ePbv `vex iv‡L| GKB wek¡we`¨vj‡q wewfbœ mg‡q wb‡qvM Ges c‡`vbœq‡bi †¶‡Î GKB ai‡bi wbqg-bxwZ AbymiY Kiv cª‡qvRb e‡j KwgwU g‡b K‡i|

ZvB ch©v‡jvPbv KwgwU PjwZ `vwqZ¡ A_ev fvicªvß c‡` PvKzixi AwfÁZvi welqwU c~‡e©i b¨vq wkw_j we‡ePbv K‡i G c«wZ‡e`‡b mycvwik Kiv n‡q‡Q|

D‡j¬L¨, GB wek¡we`¨vj‡q Kg©iZ mKj wk¶K Kg©KZ©v I Kg P©vixi wb‡qvM wewfbœ mg‡q AbywôZ wmwÛ‡KU mfvq Aby‡gvw`Z| wek¡we`¨vj‡qi wewfbœ bw_cÎ ch©v‡jvPbvKv‡j †`Lv hvq †h, 21Zg wmw›W‡KU Òwe‡kl †hvM¨Zv m¤úbœ cªv_©x‡`i †¶‡Î †h †Kvb kZ© wkw_j †hvM¨Ó G kZ©wU Aby‡gvw`Z| G kZ©wU wek¡we`¨vjq cªwZôvi ci n‡Z A‡±vei-2001Bs ch©šZ Ges A‡±vei-

2001 Bs n‡Z b‡f¤^i 2006Bs ch©šZ wek¡we`¨vj‡qi wewfbœ wb‡qv‡Mi †¶‡Î e¨enæZ n‡q‡Q

(mshyw³-02K)| wb‡qvM weÁw߇Z wmwÛ‡K‡U Aby‡gvw`Z Giyc kZ© D‡j¬L _vKvq hyw³msMZfv‡eB wb‡qvMcªvß wk¶K, wPwKrmK, Kg©KZ©v I Kg©PvixM‡Yi wb‡qv‡Mi †¶‡Î wkw_j we‡ePbvi `vex iv‡L| (underlined by us)

wek¡we`¨vjq cªwZôvi ci n‡Z A‡±vei-2001 Bs ch©šZ Ges A‡±vei-2001 Bs n‡Z b‡f¤^i-2006 Bs ch©šZ wek¡we`¨vj‡qi wewfbœ wb‡qv‡Mi mswk¬ó bw_cÎ ch©v‡jvPbv K‡i †`Lv hvq †h, Dfq Avg‡jB wKQy msL¨K wk¶K, Kg©KZ©v I Kg©Pvix wb‡qv‡M Awbqg i‡q‡Q| Dfq Avg‡jB wb‡qvM cªvß GB e¨³MY eZ©gv‡b wek¡we`¨vj‡q ¯e-¯e c‡` wb‡qvwRZ †_‡K `xNw`b hver PvKzix K‡i Avm‡Qb Ges G‡`i mK‡ji wb‡qvM wewfbœ mg‡q wek¡we`¨vj‡qi m‡e©v”P KZ©„c¶ wmwÛ‡KU KZ…©K Aby‡gvw`Z| AZGe, wk¶K, Kg©KZ©v I Kg©Pvixe„‡›`i wb‡qvM wb‡q †h †Kvb wm×všZ mZK©Zvi mv‡_ Ki‡Z n‡e, hv‡Z K‡i B‡Zvc~‡e© wmwÛ‡KU Aby‡gvw`Z †Kvb wm×v‡š iÍ mv‡_ e¨Zvq bv N‡U Ges fwel¨‡Z wek¡we`¨vjq KZ©„c¶ hv‡Z †Kvb AvBbx RwUjZvi gy‡LvgywL bv nq| Ó

Finally,  it  was  observed  in  respect  of appointment  of  the  writ  petitioner  by  the  said Inquiry Committee that:   

Ò                        

wgwUi

g©KZ©v Gg

weavq vM¨Zv

©KZ©v ¨vcK

07 wZôv‡b weavq h_

Kvkbv

b‡W·

Ges ©eZ©x wU weavq c~iY

Z©ewj

Ó

Another Inquiry Committee was formed pursuant to  the  letter  communicated  under  memo  No. ¯evcKg/cªkvmb-wewea 11/2007-552 16.04.2007 by the concerned Ministry  for  holding  inquiry  in  respect  of purchase of goods and appointment of manpower with the following members:

ÒAa¨vcK †gvt bRiyj Bmjvg, †Pqvig¨vb, fvB‡ivjwR wefvM,  eGmGgGgBD-mfvcwZ Aa¨vcK †gvt mvjn DwÏb, †Pqvig¨vb, P¶z weÁvb wefvM, weGmGgGgBD-m`m¨

Aa¨vcK †gvt Kvgvj, c¨v_jwR wefvM, weGmGgGgBD-m`m¨

Aa¨vcK mRj K…ò e¨vbvR©x, KvwW©IjwR wefvM, weGmGgGgBD-m`m¨ Rbve AvKivg ‡nv‡mb, B݇c±i Ae K‡jRm GÛ †cvó Mª¨vRy‡qU BbwówUDUm I fvicªvß Pxd B‡óBU Awdmvi, weGmGgGgBD-m`m¨

Rbve †gvt bRiyj Bmjvg, Dc-mwPe, ¯ev¯’¨ I cwievi Kj¨vY gš¿bvjq

evsjv‡`k mwPevjq, XvKv (gš¿Yvjq KZ©„K g‡bvbxZ) m`m¨

Rbve †gvt Bd‡ZLvi Avjg, Dc-cix¶v wbqš¿K, weGmGgGgBD-m`m¨Ó

Report  of  the  said  Inquiry  Committee  in

respect of the dispute over the appointment of the writ petitioner was as follows:

Ò

© c~iY wewa

we‡kl Ges Gi wkw_j m¤§‡Ü

¨e¯nv nj |

Ó

Thereafter,  Sub-committee  No.2  formed  by Parliamentary  Standing  Committee  of  the  Ministry  of Health held an inquiry. Relevant portion of the said inquiry report runs as follows:

Ò

Av‡jvPbv, wbix¶v mycvwik

ÁZvi kZ©

 e¨w³i

Z nq bvB vi mycvwik

wa Abyhvqx ejx  c~iY  bv

wbe©vPb i ZrKvjxb

Pe wbqg

b  e‡j

weiy‡× ycvwik  Kiv

Ó  

Precisely,  the  allegation  against  the  writ petitioner, as it appears from subsequent inquiry reports that at the time of getting appointment as professor  in  the  BSMMU  he  had  no  requisite experience.  More  specifically,  in  the  employment notification  required  experience  for  filing application  in  the  post  of  professor  was  that, “wbw`©ó wel‡q wbqwgZ cuvP erm‡ii mn‡hvMx Aa¨vcK A_ev mgvb c` gh©v`vi wk¶KZv” but the writ petitioner had no such experience. He had following teaching experience at the relevant time:

(1)Associate Professor (Current charge)

               Moymonshingh Medical College

              (from 01.03.1998 to 31.05.1998)

(2)Associate Professor (current charge)

               BSMMU

              (from 01.06.1998 to 09.05.2001)

(3)Associate Professor

 Sylhet M.A.G. Osmani Medical College             (from 09.05.2001 to 30.09.2003)

That is, he had 5 years 04 months 15 days

teaching experience as Associate Professor in charge and Associate Professor before filing application. It appears that the writ petitioner, holding the post of Associate Professor, performed his duties more than 2 years and holding the post of Associate Professor-in-charge performed his duties for more than 3 years. Question is, whether at the time of performing his duties as Associate Professor in charge he had acquired any experience or not. According to Black’s Law Dictionary experience means a state, extent, or duration of being engaged in a particular study or work. A word implying skill, facility, or practical wisdom gained by personal knowledge, feeling, and action, and also the course or process by which one attains knowledge or wisdom. The Law Lexicon says- experiene means knowledge or practical wisdom gained from what one has observed, encountered or undergone. While performing the functions of a Associate professor-in-charge the same was not the substantive post of the writ petitioner but it is difficult to say conclusively that within those

period he did not gather any experience as Associate Professor-in-Charge or his skill has not been improved.

We have already found from the advertisement that it was mentioned specially therein that every condition is relaxable in the case of special qualifications of the candidate. The exact words were, “ we‡kl †hvM¨Zvm¤úbœ cªv_©x‡`i †¶‡Î †h †Kvb kZ© wkw_j‡hvM¨”. (underlined by us)

From the required education qualifications for the post of Professor in respect of clinical subject as mentioned in the employment notification issued by the BSMMU authority as well as in “wb‡qvM bxwZgvjv (wk¶K)t” were No.(1)MBBS or equal degree, (2) MD in particular subject or MS (from the BSMMU or Dhaka University)/ FCPS (Fellowship of the College of Physicians and Surgeons of Bangladesh)/MRCP, FRCS,MRCOG DMRT/DRMD/ DPM/ M/M. Phil or post graduate or any post graduate qualification in equal status. That is, the writ petitioner was entitled to file application for getting appointment in BSMMU since, at the relevant time, he had MBBS and FCPS degrees. It further appears that apart from MBBS and FCPS degrees, the writ petitioner had FRCS degree from the Royal College of Physicians and Surgeons of

Glasgow, UK, MS(Surgery) from the Institute of Postgraduate Medicine and Research, Dhaka (Dhaka University), Bangladesh and Fellowship of Colorectal Surgery from the National University Hospital, Singapore. That is, he acquired specific surgical qualification, that was, Fellowship of the Royal College of Surgeons which is training in surgical specialities and which also shows his education and training, professional qualifications, and surgical competence which was given upon rigorous evaluation and which is consistent with high standars of special qualification. It further appears that in addition to his FCPS and FRCS decrees, he had also M.S. (Surgery) degree which is also a postgraduate degree and advanced qualification in surgery. The said degree is also designed to be awarded as a higher degree. That is, the writ petitioner had special qualifications to be appointed as Professor of the BSMMU. It is quite clear that the petitioner had postgraduation degrees and Fellowships for meeting the eligibility criteria for filing applications in the post of Professor.

We have already found that in the advertisement it was specifically mentioned that in case of special qualifications every terms and conditions mentioned in the employment

notification was relaxable. When an employment advertisement stipulates a particular qualification as the minimum qualification for the post and further stipulates that the qualification should be relaxed in case of special qualification/higher qualification the only meaning of it conveys is that some additional weightage has to be given to the higher qualified candidates. The writ petitioner had three more special qualifications, that is, FRCS, MS(Surgery) and Fellowship of colorectal surgery, National University Hospital, Singapore besides the requisite qualification as mentioned in the employment notification. From the first inquiry report held by the BSMMU it appears that the BSMMU syndicate in its 21st meeting decided that in case of specially qualified candidates the terms as provided is relaxable and in the said report it was further observed that, “ eZ©gvb ch©v‡jvPbv KwgwU wek¡we`¨vj‡qi Rb¥j‡Mœ 30/04/1998Bs Zvwi‡L RvixK…Z ZrKvjxb wfwm AavcK Gg, G Kv‡`ix g‡nv`‡qi

¯ev¶‡i GKwU Awdm Av‡`‡k †`Lv‡Z cvq †h, mv‡eK AvBwcwRGgGÛAvi Gi 43 Rb wk¶K‡K

Zuv‡`i K…Z c~e© PvKzixi PjwZ `vwqZ¡ Ges fvicªvß c‡`i AwfÁZv‡K we‡ePbv K‡i ¯e-¯e c‡`

GB wek¡we`¨vj‡qi PvKzix‡Z wbqwgZ Kiv n‡q‡Q|” In such view of the matter, it is difficult to hold that writ petitioner’s appointment was totally illegal.

We have found that in another Inquiry report it has been observed, “ ÒcwÎKvq cªKvwkZ wb‡qvM weÁw߇Z D‡jøwLZ Ôwe‡kl †hvM¨Zv m¤úbœ cªv_©x‡`i †¶‡Î †h †Kvb kZ© wkw_j †hvM¨Õ Gi mg_©‡b cªv_©xi wK we‡kl †hvM¨Zv

wQj Ges †Kvb we‡kl †hvM¨Zvi wfwˇZ wb‡qvM kZ© wkw_j Kiv n‡qwQj wKbv, †m m¤ú‡K© wb‡qvM KwgwUi Kvh©weeibx‡Z †Kvb wKQy D‡jøL bvB|Ó” The selection has been made by the assessment of relative merits of rival candidates determined in the course of the interview of the candidates. There is no rule or regulation brought to our notice requiring the selection committee to record reasons. In the absence of any such legal requirment the selection made without recording reasons can not be found fault with. Administrative authority is under no legal obligation to record reasons in support of its decision. Indeed, even the principles of natural justice do not require a selection committee to record reasons for the selection or non-selection of a person in the absence of statutory requirement. But ‘fairness’ or ‘fair procedure’ ought to be observed . It is not shown that the selection was arbitrary or whimsical or the selection committee did not act fairly in appointing Dr. Zahidul Huq.

It is relevant here to refer the case of Ms. Shinda Hasan V. State of Uttar Pradesh and other reported in AIR 1990 SC 1381. In the said case in

response to the advertisement the appellant along with others applied for the post. The appellant did not fulfil the qualification of five years experience. She alone appeared for the interview and the Selection Committee relaxed the qualification of experience in her favour and selected her. The Mangement thereafter sought the approval of the University to appoint the appellant as required under section 31(11) of the Uttar Pradesh State Universities Act, 1973. The University, however, declined to approve and directed the management to re-advertise the post. The appellant challenged the decision of the University by way of a writ petition under Article 226 of the Constitution of India before the Lucknow Bench of the Allahabad High Court on the ground that the college being a minority institution any interference by the University under the Act is violative of Article 30(1) of the Constitution. It was also contended that there was no basis of justification to withhold the approval. The High Court rejected the attack on the ground of Article 30 of the Constitution of India by holding that the provisions of the Act are regulatory and are primarily for the purpose of maintaining uniformity, efficiency and standards of education in the minority institutions. On the merits, the High Court held that the Selection Committee was not justified in relaxing the qualification without reserving that right to itself in the advertisement. The High Court also found that the qualification ‘possessing working knowledge of Urdu’ was unjust. On the above findings the writ petition was dismissed. This is how the appellant went to the Supreme Court. Supreme Court adjourned the case with the following order: ‘It is admitted by the parties that as a result of the Court orders the appellant Ms. Shainda Hasan is continuing to work as Principal in the Karamat Husain Muslim Girls College, Lucknow since 1974. Having served the institution for over 16 years it would be unjust to make her leave the post. Under the circumstances let the University reconsider the whole matter sympathetically.’” Then Indian Supreme Court of India held,

“Keeping in view the facts and circumstances of the case and in the interest of justice we direct the Lucknow University and its Vice-Chancellor to grant the necessary approval to the appointment of the appellant as Principal of Karamat Husain Muslim Girls College, Lucknow, with effect from the date she is holding the said post. We further direct that the appellant shall be entitled to

the salary, allowances and all other consequential benefits to which a regular principal of the said college would have been and is entitled.”

This  case is better than that of the above

referred case since there was a clause in employment notification of relaxation of every terms of qualifications in case of special qualifications which the writ petitioner had.

From the employment notification, appointment of the writ petitioner, service of the petitioner as professor for about 7 years in the BSMMU and that after cancellation of his appointment, the repeated request of the BSMMU authority to take class in FCPS and MS (final) course in the BSMMU and from repeated inquiries and reports of the Inquiry Committees it appears to us that the turnabout of the BSMMU authority in flip-flop- flipin stance has put the writ petitioner in a

predicament which should be deprecated.

We are of the view that conclusion arrived at by the High Court Division does not calls for any interference.

Accordingly, the petition is dismissed.

                                                                                               J.

        J.

J. J.

The 5th November, 2018.

M.N.S./words-5224/