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Microsoft Word - JUDGMENT OF WRIT PETITION NO. 9401 OF 2019 OF S.M.GOLAM HAIDER-ABSOLUTE

IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(Special Original Jurisdiction)

WRIT PETITION N0. 9401 OF 2019

IN THE MATTER OF:

An application under article 102 (2) (a) (i) & (ii)  of  the  Constitution  of  the  People’s Republic of Bangladesh.

AND

IN THE MATTER OF:

S.M. Golam Haider

------------------Petitioner -Versus-

The Government of the People’s Republic of Bangladesh,  represented  by  the  Secretary, Secondary  and  Higher  Education  Division, Ministry of Education, Secretariat Building, Ramna, Dhaka and others.

                         ---------------Respondents         Mr. Md. Humayun Kabir, Advocate with

Mr. Haripada Barman, Advocate and

Mrs. Taslima Yeasmin, Advocate

     -----------For the petitioner

Mr. Bepul Bagmar, DAG

Mr. Mohammed Rezaul Hoque, AAG

-----For the respondent No.4

Judgment On: 19.10.2023

Present:

Mr. Justice Md. Khasruzzaman

And

Mr. Justice Md. Khairul Alam 

Md. Khasruzzaman , J:

In the instant writ petition, on 29.08.2019 the Rule Nisi was issued in the following terms:


1

“Let a Rule Nisi be issued calling upon the respondents

to show cause as to why  the provision of the clause No.18.5 of the Ò‡emiKvix wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I Gg.wc.I bxwZgvjv-2018Ó imposing condition not to

pay  the  arrear  government  portion  of  salary  of  the teachers  and  employees  of  the  Non-Government Educational institutions i.e the School & College from

the  Government  Fund  (Annexure-L)  should  not  be declared ultra vires the Constitution and further as to why

they should not be directed to take necessary steps for releasing the arrear government portion of the salary of

the petitioner during suspension period from November,

2014 to January, 2018 including retirement and welfare benefits which remained unpaid to him during that period

of time after proper assessment

Pertinent facts necessary for disposal of the Rule are that the petitioner  applied  for  the  post  of  Principal,  in  response  to  the advertisement published by the concerned authority  and the duly constituted  selection  committee  selected  the  petitioner  to  be appointed for the said post and consequently the petitioner joined the said College on 17.03.2005 in response to the appointment letter issued by the President of the governing body of the college on

16.03.2005  and  since  then  he  has  been  discharging  his  duties

honestly, sincerely and with full satisfaction of the authority. The

petitioner was enlisted in the monthly pay order (MPO) from March,

2005 as the Principal being Index No. 010916 and since then he has

been receiving government portion of his monthly salary and other

financial benefit regularly without any interruption till January, 2018

i.e the date of retirement. On 22.01.2015 the governing body of the

college took a decision to suspend the petitioner from his service on

the ground that the petitioner was taken into custody in a criminal

case and on 01.02.2015 the President of the governing body of the

college (respondent No.5) issued a letter to that effect under memo

No.  05/15  dated  01.02.2015.  On  02.11.2016  the  petitioner  was discharged from the allegations brought against him by the Senior

Judicial Magistrate,  Court No.1, Khulna vide order No.16 dated 02.11.2016. The governing body of the college has failed to start any proceedings against the petitioner in compliance with the provisions

of the Service Regulations, 1994 or 2015 resulting on 19.11.2017 the

petitioner filed an application before the Vice-Chancellor, National University,  Gazipur  (respondent  No.2)  requesting  him  to  take

necessary action against the order of suspension of the petitioner

from his service as the Principal, Dumuria College, Dumuria, Khulna

under regulation 34 of the  RvZxq wek^we`¨vj‡qi Awaf~³ †emiKvix K‡jR

wkÿK‡`i  PvKyixi  kZ©vejx  †i¸‡jkb  (ms‡kvwaZ)-2015, but  the  respondent remained silent without considering the prayer of the petitioner and giving any reply. Though the said application has duly been received by the office of the Vice-Chancellor, National University (respondent No.2) on 19.11.2017, he did not take any step over the matter till to date.  Without  getting  any  result  on  the  application  filed  by  the petitioner on 19.11.2017, the petitioner was compelled to file Writ Petition  No.17464  of  2017  and  on  08.01.2018  the  High  Court Division  disposed  of  the  writ  petition  with  a  direction  upon  the respondents to dispose of the representation of the petitioner dated 19.11.2017 within 60 (sixty) days from the date of receipt of a copy of the order. In pursuance of the order dated 08.02.2018 passed in Writ Petition No. 17464 of 2017, on 08.02.2018 the Inspector of College (In-Charge), National University (respondent No.3) issued a letter directing the President, Governing Body, Dumuria College, Dumuria (respondent No.7) to reinstate the petitioner in his service after withdrawing the suspension order under memo No. 07(Ly-208) RvZxt wet/Ktct/‡KvW-0328/38087 dated 08.02.2018. The letter of the National University has duly been received by the President of the governing  body  and  the  Principal  (In-Charge)  of  the  college (respondent Nos.7 & 8) but they did not take any step for reinstating the petitioner in his service as the Principal of the college till to date.

The petitioner was suspended from his service on 22.11.2014. But the  governing  body  of  the  college  has  failed  to  conclude  the proceedings  initiated  against  the  petitioner  before  the  date  of retirement of the petitioner on 30.01.2018 and for this reason on 08.02.2018  the  National  University  issued  a  letter  directing  the President,  Governing  Body,  Dumuria  College  to  withdraw  the suspension order of the petitioner and to pay all arrear salaries of the petitioner. But the governing body of the college did not withdraw the suspension order of the petitioner and also did not pay the arrear salaries of the petitioner as per direction of the National University. On 19.02.2018, 23.10.2018 and 20.12.2018 the petitioner filed three applications before the President, Governing Body, Dumuria College (respondent  No.7)  requesting  him  to  take  necessary  steps  for releasing the arrear salaries of the petitioner during suspension period from  22.11.2014  to  January,  2018  including  the  retirement  and welfare benefits, but he did not take any step over the matter till to date.  On  28.01.2019  and  31.01.2019   the  petitioner  filed  an application before the Vice-Chancellor, National University, Gazipur (respondent  No.2)  requesting  him  to  take  all  necessary  steps  for releasing  the  arrear  salaries  of  the  petitioner  during  suspension including the retirement and welfare benefits, but he did not take any step  over  the  matter.  The  National  University  is  under  legal

obligation to take all necessary steps for executing their own order

dated 08.02.2018, but he remained silent without considering the

claim  of  the  petitioner.  On  12.02.2019  the  petitioner  filed  two applications before the Secretary, Secondary and Higher Education Division, Ministry of Education (respondent No.1) and the Director

General, Directorate of Secondary and Higher Education, Shikkha

Bhaban,  Dhaka  (respondent  No.4)  requesting  them  to  take  all necessary  steps  for  releasing  the  arrear  salaries  of  the  petitioner

during  suspension  period  including  the  retirement  and  welfare

benefits, but they did not take any step over the matter. Under the provision of clause No. 18.5 of the Ò‡emiKvix wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I Gg.wc.I bxwZgvjv-2018Ó, the Secretary, Secondary and

Higher Education Division, Ministry of Education (respondent No.1)

verbally refused to pay the arrear government portion of salary of the petitioner  during  his  suspension  period  from  November,  2014  to

January,  2018.  Since  the  governing  body  of  the  college  did  not withdraw the arrear government portion of salary of the petitioner

during suspension period, the governing body of the college is not

bound to pay the said arrear government portion of salary of the petitioner from their own pocket. As per the provision of the Service Regulations, 1994, the governing body of the college has no power to withdraw  the  government  portion  of  salary  of  any  suspended  / dismissed  teachers  or  employees  of  the  Non-Government Educational  Institutions  i.e  School,  College  or  Madrasha. The governing body of the college did not pay the government portion of salary of the petitioner during suspension period and the said money has already been returned to and deposited in the Government fund due to lapse of the financial year. The governing body of the college did not receive or withdraw the remaining government portion of the salary of the petitioner during his suspension period and as per the Service Rules, 1994,  the governing body of the college has only power  to  pay  50%  of  the  government  portion  of  salary  during suspension period as subsistence allowance. But the governing body of the college has no power to receive or withdraw the remaining 50% of the government portion of salary and due to lapse of the financial year the remaining 50% of the government portion of salary of  the  petitioner  has  been  returned  and  deposited  into  the Government Treasury and the respondents are wholly disentitled to refuse to pay the remaining 50% of the government portion of salary of the petitioner to rely under clasue 18.5 of the Guidelines, 2018. It is stated that if the petitioner does not get the remaining government portion of the salary from the government, the petitioner will not get any  benefit  from  the  Kallayan  Trust  under  the  provision  of  the Ò†emiKvwi wkÿv cÖwZôvb wkÿK I Kg©Pvix Kj¨vY Uªvó AvBb, 1990Ó and also will

not  get  any  retirement  benefit  from  the  government  under  the

provision of the  Ò†emiKvwi wkÿv cÖwZôvb wkÿK I Kg©Pvix Aemi myweav cÖweavbgvjv, 2005Ó. Thus if the remaining government portion of the

salary  of  the  petitioner  will  not  pay,  the  petitioner  will  suffer

irreparable lose and injury. The petitioner has been suspended from

his service in the year of 2014, but he has not been dismissed from

his service and the respondents did not pay the arrear government

portion  of  the  salary  of  the  petitioner  from  November,  2014  to

January, 2018 and as such the petitioner is entitled to get the arrear

government  portion  of  salary  of  the  petitioner  during  suspension

period. In this backdrop, the petitioner filed this writ petition and

obtained the present Rule Nisi.

The respondent No.4 contested the Rule by filing an affidavit- in-opposition  to  controvert  the  statements  as  made  in  the  writ petition. 

At the time of hearing, Mr. Md. Humayun Kabir, the learned Advocate  for  the  petitioner  submits  that  at  this  moment,  the petitioner is not inclined to press the first part of the Rule and as such the first part of the Rule is liable to be discharged as being non- prosecution.

Mr.  Md.  Humayun  Kabir,  the  learned  Advocate  for  the petitioner pressed his submissions on the second part of the Rule only and submits that the action of the respondents in not making payment  of  the  arrear  government  portion  of  the  salary  of  the petitioner during suspension period is malafide, arbitrary, without jurisdiction and against the principal of natural justice and as such the respondents are required to be directed to take necessary steps for releasing the arrear government portion of the salary of the petitioner during suspension period including retirement and welfare benefits which remained unpaid to him during that period of time.

Mr. Kabir further submits that the issue involved in this writ petition has already been decided by the High Court Division as well as by the Appellate Division in the series of cases.

Mr. Kabir relying on the unreported decision in the case of Md. Kamruzzaman  Vs.  The  Government  of  the  People’s  Republic  of Bangladesh & others in Writ Petition No. 9755 of 2017 (one of us is a party) wherein this Division elaborately discussed the similar issue about the payment of arrear salaries during suspension period as well as  dismissal  period  of  a  teacher  of  a  Non-Government School/College/Madrasha of the country and the said judgment has already been affirmed by the Appellate Division in CPLA No. 1485 of 2022.


On the other hand, Mr. Bepul Bagmar, the learned  Deputy

Attorney General appearing for the respondent No.4 by filing an affidavit-in-opposition  submits  that  the  dispute  was  between  the petitioner and the governing body and for the said reason, the arrear

salaries which was refunded to the government, can not be given in

view of the clause 18.5 of the Ò‡emiKvix wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I Gg.wc.I bxwZgvjv-2018Ó. He further submits that he did

not rejoin his post and as such he can not claim the arrear salaries for

the  period  from  November,  2014  to  January,  2018  including retirement and welfare benefits which remained unpaid to him during

his suspension period.

We have considered the submissions of the learned Advocate for the petitioner and the learned Deputy Attorney General, perused the materials on record and gone through the decisions referred to.

In the instant case, there were two issues under challenge by

the petitioner before this Court, the first issue relates to the legality of

the clause No.18.5 of the Ò‡emiKvix wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I Gg.wc.I bxwZgvjv-2018Ó and the second issue relates to the

payment  of  the  arrear  salary  of  the  petitioner  during  suspension

period from November, 2014 to January, 2018 including retirement

and welfare benefits which remained unpaid to him.

Admittedly, at the time of hearing of the Rule, the learned Advocate for the petitioner submits that he has clear instruction from his client not to press the first part of the Rule and therefore, the first part of the Rule is discharged as being non prosecution. 

Now, considering the 2nd part of the Rule, the question has been arisen whether the petitioner is entitled to get his arrear salary during suspension period from November, 2014 to January, 2018.

That the question whether the petitioner is entitled to get his arrear  salary  during  suspension  period  from  November,  2014  to January, 2018 was answered by this Division. In the case of Md. Kamruzzaman Vs. The Government of the People’s Republic of Bangladesh & others, unreported judgment in Writ Petition No. 9755 of 2017 (one of us is a party) wherein this Division elaborately discussed  the  similar  issue  about  the  payment  of  arrear  salaries during suspension period as well as dismissal period of a teacher of a Non-Government School/College/Madrasha of the country and the said judgment has already been affirmed by the Appellate Division in CPLA No. 1485 of 2022.

It is undisputed that the present issue i.e. similar type of issue has already been settled by both the High Court Division and the Appellate  Division.  On  the  same  issue  the  respondents unsuccessfully moved to the Appellate Division in CPLA No. 1485 of 2022.

In this regard the learned Deputy Attorney General submits that as per the Nitimala, 2018 if once the arrear government portion of salary is returned to the government fund because of dispute between the Principal and the government body, it can not be refunded to the teacher.

In reply, Mr. Md. Humayun Kabir submits that in the case of ABM  Abdul  Latif  Howlader  Vs.  the  People’s  Republic  of Bangladesh  &  others,  22  BLC  (HCD)  372  (paragraph  No.35) wherein it was held that:

“In such a situation, we hold that paragraph 18(6) of the cwicÎ as quoted above and referred to by the learned DAG does not stand as a bar to petitioner’s entitlement to get the 50% of the MPO that was returned.”

It is the established principal of law that the Nitimala has no force of law and as such the submissions of the learned Deputy Attorney General has no legs to stand. Having regard to the above, the petitioner is entitled to get his arrear salary during suspension period from November, 2014 to January, 2018 including retirement and welfare benefits which remained unpaid to him.

In  view  of  the  above  recorded  deliberation,  we  have  no hesitation to hold that the petitioner is entitled to get his arrear salary during suspension period from November, 2014 to January, 2018 including retirement and welfare benefits which remained unpaid to him. Hence, the Rule succeeds.

In the result, the Rule Nisi is made absolute in part.

Thus  the  respondents  are  hereby  directed  to  take  necessary steps for releasing the arrear government portion of the salary of the petitioner  during  suspension  period  from  November,  2014  to January,  2018  including  retirement  and  welfare  benefits  which remained  unpaid  to  him  during  that  period  of  time  after  proper assessment within 3 (three) months from the date of receipt of this judgment.

Communicate the order.

Md. Khairul Alam, J:      I agree.