IN THE SUPREME COURT OF BANGLADESH

Appellate Division

PRESENT

Mr. Justice Hasan Foez Siddique, C. J.

Mr. Justice M. Enayetur Rahim

Mr. Justice Jahangir Hossain

CIVIL PETITION FOR LEAVE TO APPEAL NO.4234 OF 2018

(From the judgment and order dated the 24th day of August, 2017 passed by the High Court Division in Writ Petition No.9291 of 2017).

The  Director  General,  Directorate  of  :                 .  .   .   Petitioner Primary Education, Mirpur-02, Dhaka

-Versus-

Rahima Akter and others. : . . . Respondents

For the Petitioner : Mr. Muntasir Uddin Ahmed,

Advocate,  instructed  by  Mr.  Ziaur Rahman, Advocate-on-Record

For Respondent Nos .1-15 & 17   :  Mr.  Mohammad  Hossain,  Advocate,

instructed  by   Mr.  Zainul  Abedin, Advocate-on-Record

 Respondent Nos. 16 &18-22    :  Not represented

Date of hearing and judgment  :  The 21st day of May, 2023

JUDGMENT

M. Enayetur Rahim, J:  This  civil  petition  for  leave  to appeal  is  directed  against  the  judgment  and  order  dated

24.08.2017 passed by the High Court Division in Writ Petition No.9291 of 2017 making the Rule absolute.

The relevant facts leading to the filing of the present civil petitioner for leave to appeal, in brief, are that the present  respondents  filed  Writ  Petition  No.  9291  of  2017 before the High Court Division. In the writ petition, it is contended  that  writ  petitioner  Nos.1-16  and  added  writ petitioner  No.17  were  appointed  as  Assistant  Teachers  in different  registered  non-government  primary  schools.  At  the time  of  their  appointment  and  recruitment,  they  had  to undergo the process of interview and examinations pursuant to

notifications inviting applications for such recruitments in the said posts by the concerned schools. Apart from imparting education in those schools, the writ petitioners usually under-take several public duties such as making voter list, birth registration, census, polling activities, EPI program, Board exam duties etc. They also participated in various training programs. The writ petitioners, along with other teachers of the non- government Primary Schools, initiated national movement for nationalizing those primary schools and mobilized public support for that. Such activities of the  writ petitioners and other teachers were widely published in different newspapers. They also made several representations to the Minister, Ministry of Primary and Mass Education, State Minister and other concerned authorities. Thereupon, the Hon’ble Prime Minister, on 09.01.2013, at a national assembly of teachers, made  a declaration that  26000 registered primary schools would be made nationalized, and such declaration of the Prime Minister was widely published in different newspapers. The government,  thereafter, vide notification dated 17.01.2013 as published in the gazette  On 20.01.2013, declared the decision of the government to nationalize different types of non-government Primary schools along with their teachers, which were established and permitted to impart education before 27.05.2012. Accordingly, frameworks of different committees were provided in the said gazette notification for scrutiny of the schools and teachers for such nationalization and absorption. As regards absorption of teachers in those primary schools, it is stated in the said gazette notification dated 17.01.2013 that, while the MPO teachers would be absorbed automatically, non-MPO teachers would be absorbed through scrutiny process and recommendation of those committees. The Ministry of Primary and Mass Education, through its Deputy Director (respondent no.2), issued memo

dated 23.06.2013 to send the report of such scrutiny as regards teachers and schools within 25.07.2013 in accordance with the directions given in the aforesaid gazette dated 17.01.2013. In such process, the government, in exercise of its power under Section 3(1) of the Primary Schools (Taking Over) Act, 1974, took over control of MPO listed 4,825 registered non-government primary schools vide gazette dated 01.07.2013 as published on 10.07.2013 giving effect to such taking over from 01.01.2013. Accordingly, by such acquisition process, the schools, wherein the writ petitioners had been working, were taken under the control of the government. Though the schools of the writ petitioners were acquired and taken control by the government, the fate of the writ petitioners remained uncertain as they were not absorbed or no scrutiny process was undertaken pursuant to the gazette notification dated 17.01.2013 in respect of them. Vide order dated 06.11.2013, only the MPO listed teachers of the said schools were absorbed, though it was the declaration and intention of the government to absorb all the teachers of the said primary schools through scrutiny process in accordance with the directions given in the said gazette notification dated 17.01.2013. This being so, the writ petitioners have been discriminated and deprived of their legitimate expectation of being absorbed as regular government teachers of those primary schools. By annexing some certificates issued by the concerned schools, the writ petitioners have stated that, they are still serving as teachers in those schools and there are adequate vacant posts in those schools for absorbing the writ petitioners even though the government has in the meantime initiated process of fresh appointments through advertisements in spite of the fact that the fate of the writ petitioners is yet to be decided. Under such circumstances, the writ petitioners moved before the High Court Division in its writ jurisdiction.

On behalf of the writ respondent no affidavit-in- opposition was 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 absorb the petitioners after scrutiny in accordance with the directions contained in the gazette notification dated 17.01.2013 (published on 20.02.2013). Once absorbed, their service benefits will be given effect to from 01.01.2013, as that is the mandate of the said Gazette dated 01.07.2013 as published on 10.07.2013, in view of the entitlement of the petitioners under Section 3(2)(b) of the said Act. The government is also directed to issue necessary order in this regard in view of Rule 4(ka) of the said Rules. The respondents are directed to complete the said absorption process within 3(three) months from the date of receipt of the copy of this judgment and not to recruit any other teacher until recruitment of the petitioners is complete as aforesaid. 

Being aggrieved by the said judgment and order, the writ respondent No.3 has preferred this civil petition for leave to appeal before this Division.

Mr. Muntasir Uddin Ahmed, learned Advocate, appearing on behalf of the petitioner submits that for making any appointment in any school there should be permitted level of post, i.e. organogram approval from the concerned Ministry as well as Ministry of Public Administration and allocation of

fund from the Ministry of Finance. Taking the opportunity of the declaration of nationalization a huge number of persons who  were  never  appointed  as  teachers  at  all  prepared  some fake  papers  which  had  no  legal  basis.  In  the  process  the Chairman  of  School  Managing  Committee  (SMC)  prepared  fake appointment  letters  and had  shown  huge  number  of  teachers giving back dated and created appointment letters as well as joining  letters.  In  some  places  the  Headmasters  with  some corrupt  government  officials  also  helped  them  in  procuring fake  appointment  letters  and  approved  those  created appointment letters in the shape of resolution which had also never existed. Thus, a huge number of persons who had never performed  as  teachers  of  any  school  had  shown  fake appointment  letters  as  ‘Para  Teachers’  and  many  of  these teachers  in  connivance  with  the  existing  managing  committee for  getting  material  benefits  had  done  these  misdeeds.  But the  High  Court  Division  without  taking  into  consideration those  aspects  and  the  reports  of  the  persons  who  made inspection, made the Rule absolute.

 The  learned  Advocate  also  submits  that  under  the provision of the notification dated 17.01.2013 (Clause 3.1.1) for  nationalization  of  the  Primary  Schools  the  Upazila Monitoring Unit( ) consisting of five members headed by  Upazila  Nirbahi  Officer  of  the  concern  Upazila.  On Scrutiny of the documents, appointment cannot be made where the conditions of appointment were found absent. The persons who were appointed by way of fake and created documents can never be made. He submits that it was found from the reply of the District Primary Education Officer and Upazila Education Officer  that  no  newspaper  advertisement  was  given  prior  to the  appointment  of  the  respondent  Nos.  1  to  14  (writ

petitioner Nos. 1 to 14). The writ petitioner Nos. 15 and 16 had succeeded to show a newspaper advertisement published on 16.02.2009 but on query it was found that she had shown 2 (two) appointment letters. One is dated 20.01.2003 and another is dated 25.09.2010 but the Head Master of the said school mentioned clearly that he had never issued any such appointment letter to them.

Mr. Ahmed further submits that under the provisions of law, the nationalization of Registered Primary School, the approved limit of making appointment of the teachers was four and one of which will be Headmaster. Here, the writ petitioners were all beyond the approved limit. The teachers who had never been appointed as teachers are demanding service benefit. The persons who had been appointed as teacher even for a short period were all included in the list of nationalization. The government in order to make nationalization to the primary school teachers make highest level of nationalization so that a major portion can be nationalized. He submits that to justify the position of Nationalization the Government made a task force to scrutinize the matter of nationalization. The nationalization was very much dependent upon the number of posts, numbers of students, the land of the school compound and by way of sudden inspection to justify it. It was also very much vital to justify whether the teachers have the minimum qualification to be appointed as teacher. The task force had also been vested the task to justify about the objection raised against any teacher. However, the judgment of the High Court Division is not the proper manifestation of the existing Act and Rules.  Thus, the judgment and order passed  by  the  High  Court  Division  is  liable  to  be  set aside. 

Mr. Mohammad Hossain, learned Advocate appearing for the respondents  makes  submissions  in  support  of  the  impugned judgment and order of 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.

In  the  instant  case  on  perusal  of  the  documents  as placed  before  us,  it  transpires  from  the  reply  of  the District  Primary  Education  Officer  and  Upazila  Education Officer that prior to the appointment of respondent Nos.1 to 14 (writ petitioner No. 1-14) no newspaper advertisement was made. Writ petitioner No. 15 and 16 had succeeded to show a newspaper  advertisement  published  on  16.02.2009  but  on inquiry it was found that she had shown 2 (two) appointment letters.  One  is  dated  20.01.2003  and  another  is  dated 25.09.2010 but the Head Master of the said school mentioned clearly that he had never issued any such appointment letter to them. The gist of the reply is that:-

"" ""

''

‘

¨

The High Court Division committed grave error in passing the  impugned  judgment  and  order  without  taking  into consideration of the above factual aspect.

Clause 4.2 of the notification dated 07.01.2013 relating to the " ' runs as follows:

""

Underlines supplied).

In  view  of  the  above  provision  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 petitioners of the  writ  petition  were  all  beyond  the  approved  limit.  The teachers,  who  had  never  been  appointed  as  teachers  are demanding  service  benefit.  The  persons,  who  had  been appointed  as  teachers  even  for  a  short  period,  were  all included  in  the  list  of  nationalization.  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. 

In  the  instant  case,  the  writ  petitioners-respondents have failed to prove that they were legally appointed by the school authority and their names were recommended by the  

and, as such, no legal and vested right has been created in favour of the writ petitioners to get appointment in the nationalized primary school. The High Court Division committed  error  in  passing  the  impugned  judgment  by  giving direction  to  absorb  the  writ  petitioners  after  scrutiny  in accordance  with  the  directions  contained  in  the  gazette notification  dated  17.01.2013  (published  on  20.01.2013)  and once absorbed, their service benefits will be given effect to from 01.01.2013.     

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. 

C. J.

J. J.

B.S./B.R./ *Words-2,395*