PRESENT

 Mr. Justice Borhanuddin,

Mr. Justice M. Enayetur Rahim Mr. Justice Md. Ashfaqul Islam Mr. Justice Md. Abu Zafor Siddique

Mr. Justice Jahangir Hossain

CIVIL PETITION FOR LEAVE TO APPEAL NO.1062 OF 2018

(From the judgment and order dated the 24th day of August, 2017 passed by the High Court Division in Writ Petition No.4716 of 2017).

Government of Bangladesh and  :                           .  .   .   Petitioners others

-Versus-

Sonia Khatun and others  :                          . .  . Respondents For the Petitioners  :  Mr. Sk. Md. Morshed, Additional

Attorney General, instructed by Ms. Mahmuda Begum, Advocate-on-Record

For Respondents   : Mr. Mirza Salah Uddin Ahmed,

 instructed by Mr. Mohammad Abdul

Hai, Advocate-on-Record

Date of hearing and judgment  :  The 28th day of January, 2024

JUDGMENT

M. Enayetur Rahim, J:  Delay of 186 days in filing this civil petition for leave to appeal is condoned.

This  civil  petition  for  leave  to  appeal  is  directed against the judgment and order dated the 24.08.2017 passed by the  High  Court  Division  in  Writ  Petition  No.4716  of  2017 making the Rule absolute.

The  relevant  facts  leading  to  the  filing  of  the  present    leave  petition  are  that  the  present  respondents-writ petitioners  having  required  qualifications,  applied  for  the      post  of  Assistant  Teachers  in  different  primary  schools. Accordingly, through interview and examination process, they

were appointed as Assistant Teachers of those schools. The particulars of their appointment and joining in the Registered Non-Government Primary Schools are given in the writ petition. In the writ petition it was stated that, the schools of the writ petitioners were established in accordance with the provisions under the "‡emiKvix D‡`¨v‡M cÖv_wgK we`¨vjq ¯’vcb, cwiPvjbv I wbe܇bi kZ© bxwZgvjv' as published by the Ministry of Primary and Mass Education as well as the Rules and notifications made by the Government time to time. Pursuant to the decision of the Government, the Gazette notification dated 17.01.2013 which was issued for scrutiny of Non- Government Primary schools and Teachers for nationalization. Thereafter, the Government, vide Gazette Notification dated 08.10.2013, as published in the Gazette on 27 October, 2013, nationalized 429 Registered Non-Government Primary, Schools as Government Schools with effect from 01.01.2013. In such process, the schools of the writ petitioners were also nationalized being serial No. 296. 297 and 298 in the said Gazette. Accordingly, the Government, through Ministry of Primary and Mass Education, started scrutiny process for selecting the teachers of those Primary Schools for absorption under the revenue head. In such process, a list was published with the names of the writ petitioners and others on 30.06.2016 asking the concerned to send amendments, if any, to the said list. Accordingly, after scrutiny, the concerned District Education Officer, Mirpur, Dhaka sent a list of the writ petitioners along with others on 28.07.2016 for their absorption under revenue head as against Bawniabadh A-Block Government Primary School, Mirpur, Dhaka, Bawniabad E-Block Government Primary School Mirpur, Dhaka and Sheikh

Kamal Government Primary School Mirpur, Dhaka. However, the Ministry, vide Office Order dated 01.12.2016, appointed some of the teachers from the said list as against the said schools excluding the names of the writ petitioners without assigning any reason. Under such circumstances, they moved before the High Court Division by filing writ petition.

The Rule was opposed by writ respondent No.6 though no affidavit-in-opposition had been filed.

In due course after hearing and considering the materials on record the High Court Division made the Rule Nisi absolute directing the writ respondents to appoint the writ petitioners as Assistant Teachers as against their respective primary schools within a period of 30 (thirty) days from receipt of the copy of this judgment riving their service and other benefits with effect from 01.01.2013.  

Being aggrieved by the said judgment and order, the writ respondents have preferred this civil petition for leave to appeal before this Division.

Mr. Sk. Mohammad Morshed, learned Additional Attorney General appearing on behalf of the leave petitioners having placed the notification dated 17.01.2013 in regard to the "‡emiKvwi cÖv_wgK we`¨vjq RvZxqKiY Ges Kg©iZ wkÿK‡`i PvKzwi RvZxqKi‡Yi wm×vš' Ísubmits that in view of the said notification there is no scope to appoint the writ petitioners-respondents as Assistant Teachers as against their respective primary schools as they are the excess teachers and in the said schools as per the Nitimala one Head Master and 3(three) other teachers have already been appointed.

Mr. Mirza Salah Uddin Ahmed, learned Advocate appearing for the respondents makes submissions in support of the impugned judgment and order passed the High Court Division.

We have considered the submissions of the learned Advocates for the parties concerned, perused the impugned judgment and order of the High Court Division and other connected papers on record.

 “Clause 4.2” of the notification dated 07.01.2013 relating to the "‡emiKvwi cÖv_wgK we`¨vj q RvZxqKiY Ges Kgi©Z wkÿK‡`i PvKizx miKvwiKi‡Yi

wm×všÍ' runs as follows:

4.2 wkÿ K msµvštÍ

""(K) GgwcIfz³ mKj wkÿ‡Ki PvKzix miKvwiKi‡Yi Dc³ hy we‡ewPZ nB‡e;

12.    we`¨vj‡q Kg©iZ wkÿK‡`i PvKzix‡Z †hvM`vbKvjxb mg‡q ev Z wi‡L c‡h ÖvR¨/cÖ‡qvRbxq †hvM¨Zv _vwK‡Z nB‡e| Z‡e h_vh_ cÖwµqvq wb‡qvMK…Z nBqv _vwK‡j PvKzix miKvwiKi‡bi cieZx ©3 erm‡ii g‡a¨ wba©vwiZ ‡hvM¨Zv AR©‡bi k‡Z© cÖ‡qvRbxq †hvM¨Zvwenxb wkÿK‡KI we‡ePbv Kiv hvB‡e;
13. BZtc~‡e© GgwcIfy³ nBqv‡Q wKš‘ k„•Lj vRwbZ wKsev ckª vmwbK A_ev Ab¨wea Kvi‡Y eZ©gv‡b

GgwcI ¯’wMZ iwnqv‡Q GBiƒc wkÿK‡KI we‡ePbv Kiv hvB‡e;

14.   we`¨vj‡q mvaviYfv‡e 1 Rb cÖavb wkÿKmn 4 Rb wkÿ‡Ki c` _vwK‡e| Z‡e 400 R‡bi AwaK QvÎ-QvÎx Av‡Q Ggb we`¨vj‡q 5g wkÿ‡Ki c` m„wRZ _vwK‡j Zvnv we‡ePbv Kiv hvB‡e;
15.   cÖ‡qvRbxq †hvM¨Zv Ges wba©vwiZ c×wZ‡Z wb‡qvMK…Z nBqv _vwK‡j wbav©wiZ eq‡mi Kg A_ev †ekx  eq‡m †hvM`vbKvix wkÿK‡K c‡ ÖqvRbxq †hvM¨Zv _vKv I wbav©wiZ c×wZ‡Z wb‡qvMK…Z nIqv mv‡c‡ÿ we‡ePbv Kiv hvB‡e|Ó(Underlines supplied).

In view of the provision of clause 4.2 it is abundantly clear that the approved limit of making appointment of the teachers in a nationalized school were 4(four) and one of which will be Headmaster; and one more teacher would be considered if number of students are more than 400. Here the writ petitioners were all beyond the approved limit. The High Court Division without going into the depth of the position and status of the writ petitioners made the Rule absolute without considering the existing organogram of the nationalized school, i.e. these primary schools cannot be made over 4(four) persons as teachers.

Further, the issue involved in this case has already been decided in Civil Petition for Leave to Appeal No. 4234 of 2018. 

 In view of the above, we are inclined to interfere with the impugned judgment and order; however, since, we have heard both the parties at length, we are inclined to dispose of the civil petition for leave to appeal without granting any leave to avoid further delay in disposing of the case.

  Accordingly, the civil petition for leave to appeal is disposed of. The impugned judgment and order dated 24.08.2017 passed by the High Court Division is set aside. 

J.    J.   J.     J.     J.

B.S./B.R./*Words-1,142*