IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 8493 OF 2019 IN THE MATTER OF:

An  application  under  Article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

         -And-

IN THE MATTER OF:

Mariam Mujahida                ....…Petitioner -V E R S U S-

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

 ......Respondents.

Mr. Md. Humayun Kabir, Advocate

                                         ...…For the Petitioner Mr. ABM Abdullah Al Mahmud, DAG with Mr. Ashique Rubaiat, A.A.G

    ........ For the respondents

Present :

Mr. Justice K.M. Kamrul Kader

And

Mr. Justice Mohammad Ali

Heard On: 28.09.2021, 04.08.2022, 10.11.2022, 17.11.2022

And

 Judgment on: 09.03.2023

K. M. Kamrul Kader , J :

On  an  application  under  Article  102  of  the  Constitution of  the People’s  Republic  of  Bangladesh,  this  Rule  Nisi  was  issued  on 01.08.2019, in following terms:-

“Let  a  Rule  Nisi  be  issued  calling  upon  the respondents  to  show  cause  as  to  why  inaction  of  the

respondents in absorbing and regularizing the service of the petitioner as the Principal of the Government Rajoir Degree College, Rajoir, Madaripur by creating her post with effect from the date of Nationalization of her college and to pay her salary and other benefits as per provisions of the relevant national pay Scale of the government should not be declared to have been passed without lawful authority and is of no legal effect and as to why a direction should not be given upon the respondents to absorb and to regularize the service of the petitioner as the Principal of the government Rajoir Degree College, Rajoir, Madaripur by creating her post with effect from the date of nationalization of her college and to pay her salary and other benefits as per provisions of the relevant National Pay scale of the Government and /or pass such other or further order or orders as to this court may seem fit and proper.

Facts relevant for disposal of the Rule are that, the petitioner has been  discharging  her  duties  as  Principal  of  the  Government  Rajoir College, Rajoir, Madaripur. She has successfully completed her academic career and obtained B.A (Hon’s) and M.A degree in English, securing 2nd Class from University of Rajshahi and thereby she applied for the post of Lecturer,  Department  of  English,  Charmugria  College,  Madaripur,  in response to the advertisement published by the concerned authority and the  selection  committee  selected  the  petitioner  to  the  said  post. Consequently, she joined in the said college on 08.01.1992 in response to the appointment letter dated 01.01.1992 issued by the Principal of the said college and since then she has been serving as Lecturer of the said college for more than 10(ten) years. Thereafter, the petitioner was enlisted in the Monthly Pay Order (MPO) from June, 1992, her Index No. is 400740 and since then she has been receiving the MPO benefits against her service. In the meantime, she was promoted as the Assistant Professor (A/P) from the Lecturer.  In  course  of  service,  she  applied  for  the  post  of  the  Vice- Principal, Kazi Mintu College, Kotalipara, Gopalganj, in response to the advertisement  published  by  the  concerned  authority  and  the  selection committee duly selected her for the said post of Vice-Principal and she joined in the said college on 23.09.2002 in response to the appointment letter dated 19.09.2002 issued by the Principal of the said College. Since then she has been serving as Vice-Principal of the said College for more than 06(six) years and she has been receiving the MPO benefits against her post from September, 2002 through her Index No. 400740. Thereafter, the petitioner applied for the post of the Principal, Rajoir Degree College, Rajoir,  Madaripur  in  response  to  the  advertisement  published  by  the concerned  authority  and  the  Selection  Committee  duly  selected  the petitioner  for  the  said  post  and  she  joined  in  the  said  college  on 10.11.2008 in response to the appointment letter dated 06.11.2008 issued by the President of the Governing body of the said College and since then she has been serving as Principal of the said college for more than 10(ten) years and she has been receiving the MPO benefits against her post from November, 2008. Erstwhile; the Government of Bangladesh initially took a decision to Nationalize the said Rajoir Degree College, Madaripur and in pursuance of the said decision an inspection was conducted by an inspection team consisting with 01(one) member from the office of the Directorate  of  the  Secondary  and  Higher  Education  Dhaka  and  after holding physical inspection, a report was submitted by the inspection

three) posts including the post of the petitioner, wherein the inspection

team in its inspection report opined about the petitioner that - “ pw¢nÔø f®cl

¢e­u¡N f¢Ðœ²u¡ kb¡kb ¢Rm Hhw ¢h. ¢p. Hp (p¡x ¢nx) LÉ¡X¡­ll fÐi ¡oL f­cl SeÉ L¡jÉ

¢nr¡Na ®k¡NÉa¡ B­Rz” as evident Annexure:-F to the writ petition, but the respondent are sitting idle and did not pay any heed to it.

Thereafter, on 06.01.2019, another inquiry was held by an inquiry committee consisting of 03(three) members wherein they opined that,-

“fÐi¡oL Hhw Ef¡drÉ f­c Se¡h j¢luj j¤S¡¢qc¡l ¢e­u¡N ¢h¢d pÇja qu¢e ¢hd¡u a¡yl fc pªSe Ll¡ k¡u e¡z” (Annexure- G to the writ petition) but the said opinion is

malafide,  arbitrarily  and  in  violation  of  the  existing  Rules  and Regulations.  In  the  meantime,  on  12.05.2019,  the  husband  of  the

petitioner filed an application with D.O. letter issued by the local Member

of  Parliament  (MP)  before  the  Respondent  No.8,  Director  General, Directorate of Secondary and Higher Education, Shikkha Bhaban, Dhaka requesting  him  to  re-inquire  into  the  allegations  made  against  the

petitioner and also requested to consider the legal points raised by the

petitioner in the body  of the application filed on 12.05.2019.  Having considered the said application filed by the husband of the petitioner, the

Deputy  Director  (College),  Directorate  of  Secondary  and  Higher Education,  Shikkha  Bahvan,  Dhaka  issued  a  letter  on  23.06.2019  for

forming  an  inquiry  committee  consisting  of  03(three)  members  and

directing them to submit inquiry report afresh within 07 (seven) working

days, but said Committee did not submit any report till to date. It is

further stated as per provision of the existing Rules and Regulation, the

petitioner is entitled to be regularised or absorbed in her respective post and position i.e. the Principal of the said Rajoir Degree College (now Government  Rajoir  Degree  College)  Rajoir,  Madaripur.  Next,  the petitioner filed 2 (two) applications on 08.08.2018 to the Respondent No.1, Secretary, Ministry of Education, Dhaka and the respondent No.8, Director  General,  Directorate  of  Secondary  and  Higher  Education respectively and requesting them to create the post of the petitioner and also to appoint the petitioner on Ad-hoc basis and regularizing / absorbing her as the Principal of the Government Rajoir Degree College, Rajoir, Madaripur, but the respondents remained silent without considering the claim of the petitioner or giving any reply.

 It is also stated that the Government of Bangladesh finally took a decision to Nationalize the college of the petitioner i.e. Rajoir Degree College, Rajoir, Madaripur with effect from 30th March, 2016 contained in  Memo  No.  37.00.0000.070.02.023.2015-637  dated  11.04.2016 (Annexure-K  to  the  writ  petition).  Thereafter,  the  respondent  No.7, Deputy Secretary, Ministry of Public Administration, the Government of the  People’s  Republic  of  Bangladesh,  Dhaka  issued  a  letter  to  the Secretary, Ministry of Education giving consent to create the 29 (twenty nine) post of the Government Rajoir, Degree College, Rajoir, Madaripur excluding  the  post  of  the  petitioner  contained  in  Memo  No. 05.00.0000.155.15.053. 18-34 dated 29.01.2019 (Annexure:- L to the writ petition).

Being  aggrieved  by  and  dissatisfied  with  the  inaction  of  the respondents to absorb and regularize the petitioner in her respective post, finding no other alternative equally efficacious remedy, she filed this writ petition before this Court and obtained the instant Rule.

Mr. Md. Humayun Kabir, the learned Advocate for the petitioner submits that the inaction of the respondents in absorbing and regularizing the service of the petitioner as the Principal of the Government Rajoir Degree College, Rajoir, Madaripur by creating her post with effect from the date of nationalization of her college and to pay her salary and other benefits  as  per  provisions  of  the  relevant  National  Pay  Scale  of  the Government is illegal, malafide, capricious in nature and has been passed by exercising high executive fiat and without considering the provisions of  the  Service  Rules.  Mr.  Kabir  also  submits  that  the  refusal  of  the respondents to absorb and regularize the service of the petitioner as the Principal of her College by creating her post with effect from the date of nationalization and to pay her salary and other benefits as per provisions of  the  relevant  National  Pay  Scale  of  the  Government  is  illegal  and violative to the principle of natural justice. He also submits that before declaration of the said College as Nationalized College, the petitioner was duly appointed by the concerned Authority and joined in her College and got her salary and remuneration from the Government (MPO) from 2008 and subsequent years. The said College was nationalized in the year of 2016 and the petitioner should automatically be absorbed and regularized in her respective post with relevant pay scale of the said college from 30.03.2016, but the respondents refused to create the post of the petitioner and to absorb or regularize the service of the petitioner as the Principal of the  nationalized  college  on  the  ground  that  she  had  no  requisite

experience at the time of appointment of her earlier post i.e. Vice- Principal, which is not sustainable in the eye of law and as such, the respondents should be directed to absorb or regularize the service of the petitioner as the Principal of her Nationalized Government College from the date of nationalization of the said College and to pay her salary and other benefits as per provisions of the relevant National Pay Scale of the Government without making any delay and he prays for making the Rule Absolute. To substantiate his submission the learned Advocate for the petitioner cited the decisions in the case of (i) Md. Nure Alam vs. The Government of the People’s Republic of Bangladesh & others, unreported judgment in writ petition No.5283 of 2017, (ii) Tasaddaq Ahmad -vs.- Secretary,  Ministry of Education, the Government of the People’s Republic of Bangladesh, unreported judgment in writ petition No.10886 of 2013, (iii) Mukty Roy -vs.- Government of the People’s Republic of Bangladesh & others, reported in 23 BLD (HCD)-170, (iv) Abdur Rahim & 6 others -vs.- Government of Bangladesh & others, reported in 1 MLR (HCD)-213, (v) Hosne Ara Khanam -vs.- Government of the People’s Republic of Bangladesh & others, reported in 1 MLR (HCD)-220, (vi) Md. Abdur Razzaque -vs.- Md. Mizanur Rahman & others, reported in 2016 (1) LNJ (HCD)-31 and (vi) Anowara Chowdhury and others -vs.- Bangladesh & others, reported in 24 BLC (HCD)-213.

Mr.  Md.  Ashiq-Ul-  Haque  learned  Assistant  Attorney  General opposing  the  Rule  by  filing  an  affidavit-in-opposition  on  behalf  of Respondent  No.8  and  submits  that  the  Government  Rajoir  Degree College, Rajoir, Madaripur was Nationalized on 30.03.2016. Thereafter, on 24.04.2019, 27 (twenty seven) posts were created and on 29.07.2019,

16 (sixteen) Lecturers were appointed as Ad-hoc basis according to the provision of “S¡a£uLlZL«a L­mS ¢nrL J A-¢nrL LjÑQ¡l£ BaÈ£LlZ ¢h¢dj¡m¡,2000”. He also submits that the petitioner has no requisite qualifications for the post of Principal in any Nationalized college as per

above mentioned Bidhimala of 2000 and as such, the post of the petitioner

was  not  created  in  the  said  college.  Hence,  the  Rule  is  liable  to  be discharged.

We have heard the learned Advocates appearing for both the sides, perused the writ petition, affidavit-in-opposition and other materials on record annexed herewith.

Learned Assistant Attorney General argued that the petitioner has

no requisite qualification to be appointed in the Charmuguria College. He

referred to the investigation report dated 12.12.2018 as evident Annexure-

‘G’ to the writ petition, wherein it is categorically stated that, “¢a¢e fÐi¡oL

f­c pcl Ef­Sm¡l Qlj¤…¢lu¡ L­m­S 08/01/1992 ¢MË. a¡¢l­M ®k¡Nc¡e L­le, fÐi¡oL f­c ®k¡Nc¡­el pju ay¡l L¡jÉ ¢nr¡Na ­k¡NÉa¡ ¢R­m¡ e¡z flhaÑ£­a 24/06/1992 ¢MË. a¡¢l­M a¡yl j¡ø¡pÑ fl£r ¡l gm¡gm fÐL¡¢na qu Hhw I ¢ceC fiСoL f­c a¡l Q¡Ll¥£ ¢eu¢jaLlZ Ll¡ quz

¢L¿º ay¡l ¢e­u¡N ¢eu¢jaLl­Zl SeÉ ¢h¢d ®j¡a¡­hL ¢e­u¡N ¢h‘¢ç Hhw ¢e­u¡N ®h¡XÑ NWe Ll¡ qu¢ez g­m fÐi ¡oL f­c a¡ly ¢e­u¡N ¢h¢dpÇja euz”

Let us now consider whether she has requisite qualification to be appointed  as  Lecturer  of  the  Charmuguria  College.  First  of  all,  the petitioner joined in the Charmuguria College on 08.01.1992 as Lecturer of the Department of English. Admittedly, the petitioner appeared in the M.A. examination and before publication of her result, she was appointed as Lecturer of the said college and her result was published on 24.06.1992

and  on  the  same  date,  her  service  was  regularized/confirmed  by  the appointing authority of the said college and the office of the DG enlisted him in the MPO list instead of raising any objection as to his premature entry. As the respondents did not raise any objection as to the petitioner’s entry without requisite qualification and hence, we are of the view that the respondents’  objection  as  to  the  petitioner’s  entry  without  requisite qualification cannot be sustained at this stage and that it is hit by the principles  of  estoppels  and  acquiescence.  We  find  support  of  this contention in the Judgment and order in Writ Petition No.10886 of 2013 of Tasadduq Ahmad –vs.- Secretary, Ministry of Education and others, wherein their Lordships held that,

“It was an admitted position that appearing in the M.A. examination and before publication of the result thereof, the petitioner was appointed as a Lecturer. However, immediately after publication of the result and on submission of the certificate to the appointing authority his appointment was regularized and that the office of the DG enlisted him in the MPO list instead of raising any objection as to his premature entry and thus he has been continuing his service for the next 19 (nineteen) years on receipt of the benefits of time seale from time to time as per the Rules. Therefore, the respondents’ objection as to petitioner’s entry without requisite qualification can not sustain at this stage and that it is hit by the principles of estoppel and acquiescence.”

Now the question is whether she has requisite qualification and experience to be appointed as Vice- Principal and Principal of a non- government College. Admittedly, the Vice- Principal and Principal of a non-government College were appointed as per provision of ­hplL¡l£ ¢XNË£ L­mS ¢nrL­cl Q¡L¥l£l naÑ ¢h¢d, 1994, which approved by the meeting of the Academic Council of the National University wherein qualification and experience for appointment of the Principal, Vice- Principal and Lecturer

of a non-government College were described, which reads as follows:

4z ¢nrL f­c ¢e­u¡­Nl ®k¡NÉa¡ J A¢i‘a¡x

(L) AdÉr x fÐbj ®nÊZ£l pÀ¡aL pÇj¡e ¢XN£Ëpq ¢àa£u ®nÐZ£l pÀ¡a­L¡šl ¢XNË£ Abh¡ ¢àa£u ®nÐZ£l pÀ¡aL pÇj¡e ¢XN£Ëpq fÐbj ®nÐZ£l pÀ¡aL­L¡šl ¢XN£ËJ ¢XNË£L­mS fkÑ¡­u e§Éef­r cn hvp­ll ¢nrLa¡l A¢i‘a¡, Abh¡

¢àa£u ®nÐZ£l pÀ¡aL pÇj¡e ¢XNË£pq ¢àa£u ®nÐZ£l pÀ¡a­L¡šl ¢XN£ËAbh¡ fbÐj

¢hi¡­N pÀ¡aL (f¡p) ¢XNË£pq ¢àa£u ®nÐZ£­a pÀ¡a­L¡šl ¢XNË£ Abh¡ ¢àa£u ¢hi¡­N pÀ¡aL (f¡p) ¢XNË£pq fbÐj ®nÐZ£l pÀ¡a­L¡šl ¢XNË£J ¢XNË£LmlS fk¡Ñ­u e§Éef­r h¡l

hvp­ll ¢nr La¡l A¢i ‘ a¡, Abh¡ ¢àa£u ¢hi ¡­N pÀ¡aL f¡p ¢XN£Ëpq ¢àa£u ®nÐZ£l

pÀ¡a­L¡šl ¢XNË£ J ¢XNË£ L­mS fkÑ¡­u e§Éef­r f­el hvp­ll A¢i‘a¡z

­e¡Vx AdÉr ¢e­u¡­Nl SeÉ ¢hnÄ¢hcÉ¡m­ul Ae¤j¢a NËqZ L¢lu¡ A¢i‘a¡l pjuL¡­ml na Ñ¢n¢bm Ll¡ k¡C­a f¡­l k¢c AdÉr fcfСbÑ£ Hj.¢gm/Xƒ­lV ¢XNË£l

A¢dL¡l£ qez

(M) Ef¡dÉrx Ef¡dÉr ¢nr¡Na ®k¡NÉa¡ AdÉ­rl ¢nr¡Na ®k¡NÉa¡l Ae¤l¦f

qC­hz a­h HC f­cl A¢i‘a¡l pjuL¡m AdÉ¡­rl A¢i‘a¡l pjuL¡m qC­a c¤C

hvpl Lj qC­a f¡­lz

It transpires from the record that the petitioner has been discharging her duties as the Principal of the Government Rajoir College, Rajoir, Madaripur  at  the  time  of  nationalization  of  the  college.  She  has successfully completed her academic career and obtained B.A (Hon’s) and  M.A  degree  in  English,  securing  2nd  Class  from  University  of Rajshahi. Thereafter, she applied for the post of Lecturer, Department of English,  Charmuguria  College,  Madaripur,  in  response  to  the advertisement  published  by  the  concerned  authority  and  the  selection committee duly selected the petitioner to the said post. Consequently, she joined in the said college on 08.01.1992 in response to the appointment letter dated 01.01.1992 issued by the Principal of the said college and since then she has been serving as Lecturer of the said college for more than 10(ten) years. Thereafter, the petitioner was enlisted in the Monthly Pay Order (MPO) from June, 1992 being index No. 400740 and since then she has been receiving the MPO benefits against her respective post. In the meantime, she was promoted as the Assistant Professor (A/P) from the Lecturer. Thereafter, she applied for the post of the Vice-Principal, Kazi Mintu College, Kotalipara, Gopalganj, in response to the advertisement published by the concerned authority and the selection committee duly selected her to be appointed for the said post of Vice-Principal and she joined in the said college on 23.09.2002 and since then she has been serving as Vice-Principal of the said College for more than 06(six) years and she was enlisted in the Monthly Pay Order (MPO) from September, 2002 in her respective post, under her Index No. 400740.

On careful examination of the regulation 4(Kha) of the it also transpires that the petitioner was eligible to be appointed as the Vice-Principal of a Degree College. Admittedly, she has B.A (Hon’s) and M.A in English securing 2nd Class from the University of Rajshahi and having more than 10 (ten) years experience.

We  also  noticed  that  the  petitioner  applied  for  the  post  of  the

Principal, Rajoir Degree Collge, Rajoir, Madaripur in response to the

advertisement  published  by  the  concerned  authority  and  the  selection

Committee duly selected the petitioner for the said post and she joined in

the said college on 10.11.2008 in response to the appointment letter dated

06.11.2008 issued by the President of the Governing body of the said

college  and  since  then  she  has  been  serving  as  Principal  of  the  said

college  for  more  than  10(ten)  years  and  she  has  been  receiving  her

Monthly Pay Order (MPO) from November, 2008 as principal of the said

College under index No. 400740. In the meantime, the Government of

Bangladesh initially took a decision to Nationalize the said Rajoir Degree

College, Madaripur and in pursuance of the said decision an inspection

was conducted by an inspection team consisting with 01(one) member of

the  office  of  the  Directorate  of  the  Secondary  and  Higher  Education

Dhaka after holding physical inspection, a report was submitted by the

inspection team of the Government on 16.09.2018 wherein he opined that,

“ pw¢nÔø f­cl ¢e­u¡N fТœ²u¡ kb¡kb ¢Rm Hhw ¢h. ¢p. Hp (p¡x ¢nx) LÉ¡X¡­ll fÐi¡oL f­cl SeÉ L¡jÉ ¢nr¡Na ®k¡NÉa¡ B­Rz” Thereafter, on 06.01.2019 another inquiry was  held  by  an  inquiry  committee  consisting  of  03(three)  members

wherein they opined that,- “fÐi¡oL Hhw Ef¡drÉ f­c Se¡h j¢luj j¤S¡¢qc¡l ¢e­u¡N

¢h¢d pÇja qu¢e ¢hd¡u a¡yl fcpªSe Ll¡ k¡u e¡z” It appears from the ®hplL¡l£ ¢nr¡

fТaù¡e (jq¡¢hcÉ¡mupj§q) Hl ¢nrL J LjÑQ¡l£­cl SeÉ ¢e­u¡N, ­k¡NÉa¡, A¢i‘a¡ J ®hae ®úm, that the petitioner have required qualification for the post of

Principal. The qualification of the teachers is reproduced here in verbatim:

­hplL¡l£ ¢nr¡ fТaù¡e (jq¡¢hcÉ¡mpj§q) Hl ¢nrL LjÑQ¡l£­cl ®hae i¡a¡¢cl plL¡l£ Awn fÐc¡e

Hhw Sehm L¡W¡­j¡ pÇf¢LÑa e£¢aj¡m¡-1995

f¢l¢nø-L

®hplL¡l£ ¢nr¡ fТaù¡e (jq¡¢hcÉ¡mupj§q) Hl ¢nrL J LjÑQ¡l£­cl SeÉ ¢e­u¡N, ­k¡NÉa¡, A¢i‘a¡ J ®hae

®úm

j¿¹hÉ

However,  the  respondents  with  the  plea  of  Janobal  Kathamo without considering the Regulations unlawfully made remarks relating to the appointment of the petitioner as Lecturer and Vice-Principal of a non- government  college  was  not  made  in  accordance  with  law.  The Respondents  placed  their  reliance  in  the  Nitimalas  or  guide-line. However, the Nitimalas were not made under any statutory provision of law  or  authority.  Therefore,  the  Regulations  shall  prevail  over  all Nitimalas.

Considering  the  facts  and  circumstances  of  the  matter  and  the discussions as made hereinbefore, we are of the view that the Rule has got much merit to succeed and justice would be better served if we direct the respondents to give appointment to the petitioner as Principal of the said College on ad-hoc basis as soon as possible in accordance with the law. 

In  the  result,  the  Rule  is  made  absolute  with  direction.  The respondents are directed to regularize the petitioner’s post as Principal by creating  her  post  with  effect  from  the  date  of  Nationalization  of  her college and pay her salary and other benefits within 04(four) months, from the date of receipt of this order, in accordance with the law, without fail.

There is no order as to cost. Communicate at once.

Mohammad Ali, J :

I agree.