1
In the Supreme Court of Bangladesh High Court Division
(Special Original Jurisdiction) Present
Madam Justice Kashefa Hussain
And
Madam Justice Fatema Najib
Writ Petition No. 4940 of 2021 In the matter of:
An application under Article 102(2) of the Constitution of the People’s Republic of Bangladesh.
-And-
In the matter of:
Muhammad Mahmudur Rahman and others
……. Petitioners. Vs.
The Government of Bangladesh and others.
.... Respondents
Mr. M. Moniruzzaman Asad, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate …..for the respondent nos 4-8
With
Writ Petition No. 4941 of 2021
In the matter of :
Md. Asraful Alam and others
..... petitioners
Vs.
Government of Bangladesh and others
.... respondents
Mr. M. Moniruzzaman Asad, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G
with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate …..for the respondent nos 4-8
With
Writ Petition No. 4942 of 2021
In the matter of:
Md. Salim Rana and others
.... petitioners
Vs.
Government of Bangladesh and others.
.... respondents
Mr. M. Moniruzzaman Asad, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate …..for the respondent nos 4-8
With
Writ Petition No. 6451 of 2021
In the matter of:
Md. Sohag Howlader and others
..... petitioners
Vs.
Government of Bangladesh and others
...... respondents
Mr. M. Moniruzzaman Asad, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate
…..for the respondent nos 4-8
With
Writ Petition No. 8074 of 2021
In the matter of:
Md. Yeasinur Rahman and others ......... petitioners
Vs.
Government of Bangladesh and others
.... respondents
Mr. M. Moniruzzaman Asad, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate
…..for the respondent nos 4-8
With
Writ Petition No. 4665 of 2021
In the matter of:
Md. Atiqul Islam Mukul and others ......... petitioners
Vs.
Government of Bangladesh and others
.... respondents
Mr. Md. Faruk Hossein, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate …..for the respondent nos 4-8
With
Writ Petition No. 3499 of 2021
In the matter of: Md. Suman and others
......... petitioners Vs.
Government of Bangladesh and others .... respondents
Mr.Yusuf Hussain Humayun, Senior Advocate
with Mr. Nazmul Hasan Rakib, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G
with Mr. Md. Awlad Hossain, A.A.G
with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate
…..for the respondent nos 4-8
With
Writ Petition No. 8484 of 2021
In the matter of:
Md. Zahangir Alam and others
......... petitioners Vs.
Government of Bangladesh and others ..... respondents
Mr. Md. Faruk Hossein, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3 Mr. Kamruzzaman Bhuiyan, Advocate
…..for the respondent nos 4-8
With
Writ Petition No. 9417 of 2020
In the matter of:
Md. Waliullah and others
... ......... petitioners
Vs.
Government of Bangladesh and others.
.... respondents
Mr. Md. Siddique Ullah Miah, Advocate
…..for the petitioners. Mr. Noor Us Sadik Chowdhury, D.A.G with Mr. Md. Awlad Hossain, A.A.G with Mr. Rashedul Islam, A.A.G
…..for the respondent nos1-3
Mr. Kamruzzaman Bhuiyan, Advocate
…..for the respondent nos 4-8
Heard on: 18.05.2022, 19.05.2022, 23.05.2022, 26.05.2022, 30.05.2022, 31.05.2022 and judgment on: 01.06.2022.
Kashefa Hussain, J:
Supplementary affidavit do form part of the main petition.
All these Rules in these writ petitions are taken up together for hearing since they involve similar questions of law and fact and therefore are now being disposed of by a single judgment.
We have perused the writ petitions before us which involve similar question of law and fact. Rule s were issued on the same terms in all the writ petitions. However for sake of convenience we are inclined to take up writ petition No. 4940 of 2021 in which Rule nisi was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the action of the respondents in not taking immediate steps for the appointment by recommending the names of the petitioners pursuant to clause 5.0 of the Circular (Annexure-E to the writ petition) to the ascertained vacant posts as per clause 10(Jha) of the advertisement of 13th Teachers’ Registration Examination 2016 (Annexure-C to the writ petition) according to their issued certificates should not declared to be without lawful authority and of no legal And why the respondents should not be directed to take immediate steps for the appointment by recommending the names of the petitioners pursuant to clause 5.0 of the circular (Annexure-E to the writ petition) to the ascertained vacant posts as per clause 10(Jha) of the
advertisement of the 13th Teachers’ Registration Examination 2016 (Annexure-C to the writ petition) according to their issued certificates and/or pass such other or further order or orders as to this court may seem fit and proper.”
The petitioners are all citizens of Bangladesh with their names and addresses in the cause title in all writ petitions being Writ Petition No. 4940 of 2021, Writ Petition No. 4941 of 2021, Writ Petition No. 4942 of 2021, Writ Petition No. 6451 of 2021, Writ Petition No. 8074 of 2021, Writ Petition No. 4665 of 2021, Writ Petition No. 3499 of 2021, Writ Petition No. 8484 of 2021 and Writ petition No. 9417 of 2020.
In all the writ petitions the respondent No. 1 is the Secretary, Ministry of Education, Secondary and Higher Secondary Division, Bangladesh Secretariat, Secretariat Building, Police Station: Shahabag, Dhaka, respondent No. 2 is the Secretary, Ministry of Education, Technical and Madrasha Division, Bangladesh Secretariat, Secretariat Building, Police Station: Shahabag, Dhaka, respondent No. 3 is the Director General, Secondary and Higher Secondary Division, Shikkha Bhaban, Police Station: Shahabagh, Dhaka, respondent No. 4 is the Chairman, Non-Government Teachers’ Registration and Certification Authority (NTRCA), Red-cresent Borak Tower, Level – 04 and 05, 37 / 3A, Eskaton Garden, Ramna, Dhaka, respondent No. 5 is the Member (Joint Secretary), Examination Evaluation and Certification, Non-Government Teachers’ Registration and Certification Authority (NTRCA), Red-cresent Borak Tower, Level – 04 and 05, 37 / 3A, Eskaton Garden, Ramna, Dhaka, respondent No. 6 is the Member (Theory of Education and Standard of Education), Non-Government Teachers’ Registration and Certification Authority (NTRCA), Red-cresent Borak Tower, Level – 04 and 05, 37 / 3A, Eskaton Garden, Ramna, Dhaka, respondent No. 7 is the Director, Non-Government Teachers’ Registration and Certification Authority (NTRCA), Red-cresent Borak Tower, Level – 04 and 05, 37 / 3A, Eskaton Garden, Ramna, Dhaka and the respondent No. 8 is the Secretary (Deputy Secretary), Non-Government Teachers’ Registration and Certification Authority (NTRCA), Red-cresent Borak Tower, Level – 04 and 05, 37 / 3A, Eskaton Garden, Ramna, Dhaka.
The petitioners case also is that in order to appoint qualified Teachers in Non-Government Educational Institutions all over the country, on 15.02.2005 the Government of the Peoples’ Republic of Bangladesh formulated a law under the heading of “−hplL¡l£ ¢nrL ¢ehåe fl£r¡ J fÐaÉ¡ue La«Ñfr BCe, 2005”. That in exercise of the powers conferred by section 21 of the “−hplL¡l£ ¢nrL ¢ehåe fl£r¡ J fÐaÉ¡ue La«Ñfr BCe, 2005” , the Ministry of Education adopted the Probidhanmala, naemly, “®hplL¡l£ ¢nrL ¢ehåe, fl£r¡ NËqZ J fÐaÉue ¢h¢dj¡m¡, 2006” containing the provisions of recruitment of teachers in Non-Government Educational Institutions. Subsequently the said Probidhanmala 2006 was amemded on 22.10.2015 vide S.R.O No.
309 – BCe /2015 wherein also containing the provisions of recruitment of teachers in Non-Government Educational Institutions, namely Rule 3-Ka which has been inserted in the Rules of 2006 which is as follows: “ ¢h¢d 3L, ®hplL¡l£ ¢nrL ¢ehåe, fl£r¡ NËqZ J fÐaÉue ¢h¢dj¡m¡, 2006z n§eÉf−cl pwMÉ¡ ¢el¦fZ:
1.LaѪfr, fТa hvpl e−iðl j¡−pl j−dÉ, ®Sm¡ ¢nr¡ A¢gp−ll j¡dÉ−j ®Sm¡d£e pw¢nÔø ®hlL¡l£ ¢nr¡ fТaù¡epj§−ql fc J ¢hou ¢i¢šL n§eÉ f−cl a¡¢mL¡ pwNËq L¢l−hz
That based on 3 Rule 3-Ka of amended Bidhimala, 2006 (amended on 22.10.2015), NTRCA on 30.12.2015 published a circular bearing
Memo No. 37.00.0000.071.08.008.05(Aunsha)-1081 dated 30.12.2015. Based on the said amendment Rule 3-Ka and as well as circular dated 30.12.2015, NTRCA published a public notice in the website namely www.ntrca.gov.bd under Title “13th Teachers’ Registration Examination-2016” inviting applications from interested candidates for sitting in the 13th Teachers’ Registration Examination-
2016 for the purpose of fulfillment of the vacant post of teachers in Non-Government Educational Institutions as per Clause 10-Jha of said examination notice dated 24.02.2016. Relying on clause 10-Jha of
said “13th Teachers’ Registration Examination-2016” notice dated 24.02.2016 all the writ petitioners sat for examination and passed preliminary, written as well as viva-voce examination as per Clause
10-Jha of said examination notice. Results were published on
04.06.2017 and the petitioners obtained certificate from NTRCA. The writ respondents pursuant to the relevant Rules of 2006 amended in 2015 and pursuant to the Guidelines prepared a merit list of qualified candidates to be appointed through NTRCA pursuant to recommendation in the vacant posts for which 13th Teachers’ Registration Examination-2016 was held. The then Hon’ble Minister, Minister of Education made an announcement stating that the qualified candidates of 13th Teachers’ Registration Examination would be appointed to their respective posts and the said announcement was published in different electronics as well as printing media. The predecessors of the writ petitioners earlier about 2207 in number being qualified candidates of 13th Teachers’ Registration Examination -2016 filed writ petition Nos. 16307 of 2017, 18506 of 2017, 17896 of 2017, 17961 of 2017 , 18100 of 2017, 18727 of 2017 and 18728 of 2017 respectively before the Hon’ble High Court Division and sought for direction upon the respondents to take immediate steps for their appointment by recommending the names of the writ petitioners pursuant to Clause 5.0 of the Circular (Annexure D of said writ petition) to the ascertained vacant posts as per Clause 10-Jha of the notice of 13th Teachers’ Registration Examination-2016 in accordance with their issued certificates. Accordingly, Rule Nisi was issued and after hearing of the said Rules analogously, on 05.11.2018 a Division Bench of the High Court Division made the Rules absolute with a direction upon the respondents. Against the said judgment and order dated 05.11.2018 passed by the High Court division, NTRCA filed a Civil Petition for Leave to Appeal before the Hon’ble Appellate Division of the Supreme Court of Bangladesh which was turned into Civil Appeal No. 343 of 2019. Upon hearing the said Civil Appeal No. 343 of 2019 the Hon’ble Appellate Division on 12.03.2020 vide judgment disposed of the appeal and upheld the judgment and direction passed by the Hon’ble High Court Division in said writ petitions. On 30.03.2021 one Member (Joint Secretary), NTRCA, Dhaka published a circular inviting the interested candidates for appointment as teachers in different institutions all over the country. In the said circular it has been noticed that about 2207 qualified candidates’ posts have been reserved. Clause 6 of the said circular states that as per judgment of the Appellate Division passed in Civil Appeal No. 343 of 2019, the said 2207 qualified candidates (earlier writ petitioners i.e. the predecessors of present writ petitioners) do not have to give their choice, they will have to simply make an application.
That the instant petitioners case is also that although all these petitioners pursuant to their being in the merit list are entitled to be recommended by Non-Government Teachers’ Registration and Certification Authority (NTRCA) who is the respondent No. 4 and all the petitioners are enlisted in merit list pursuant to Viva voce examination but till date the respondent No. 4 did not recommended the names of the petitioners for purpose of appointment and by their inaction committed illegally. Hence the writ petition.
Learned Advocate Mr. M. Moniruzzaman Asad appeared on behalf of the petitioners in Writ Petition Nos. 4940 of 2021, 4941 of 2021, 4942 of 2021, 6451 of 2021 and 8074 of 2021. Learned Senior Advocate Mr. Mr.Yusuf Hussain Humayun along with Mr. Nazmul Hasan Rakib, Advocate appeared for the petitioners in Writ Petition No. 3499 of 2021. Learned Advocate Mr. Faruk Hussein appeared for the petitioners in Writ Petition No. 4665 of 2021 and Writ petition No. 8484 of 2021 and learned Advocate Mr. Md. Siddique Ullah Miah appeared for the petitioners in Writ Petition No. 9417 of 2020.
While in all the above mentioned writ petitions the learned D.A.G Mr. Noor Us Sadik Chowdhury with Mr. Md. Awlad Hossain, A.A.G along with Mr. Rashedul Islam, A.A.G appeared for the respondents No. 1-3 and learned Advocate Mr. Kamruzzaman Bhuiyan appeared for the respondent Nos. 4-8.
Learned Advocate for the petitioners in Writ Petition Nos. 4940 of 2021, 4941 of 2021, 4942 of 2021, 6451 of 2021 and 8074 of 2021 submits that the petitioners are all qualified candidates for purpose of recommendation by the respondent No. 4, Chairman, Non- Government Teachers’ Registration and Certification Authority (NTRCA) and they were selected from the merit list following the relevant laws in particular the relevant ¢h¢dj¡m¡ amended in the year 2015. He submits that however the respondents particularly the respondent No. 4 upon violating and bypassing the statutory Rules showed complete inaction by refraining to recommend the petitioners in accordance with the merit list for purpose of appointment to the respective posts and thereby committed gross illegality and deprived the petitioners of their fundamental rights guaranteed under Article 27, 29, 31 and also Article 40 of the constitution. He contends that it is an admitted fact, admitted by the respondents that all these
petitioners are examinees appearing in the examination conducted by the NTRCA in the 13th batch. He submits that it is evident from the Rules that in 2015 the previous rules for procedure of appointment of teachers to the respective institutions were amended by way of Annexure B-2 whereby some new clauses were inserted. He draws attention to the amended ¢h¢dj¡m¡ dated 22.10.2015 vide S.R.O No. 309-BCe/2015. He particularly draws attention to Rule 3 Ka which is the new amended clause pursuant to the amended S.R.O of 2015. Upon drawing attention to the amended new Rule 3 Ka which is the procedure laid down to be followed for purpose of appointment of teacher to Educational institutions, the learned Advocate for the petitioners particularly draws takes us to the terms n§eÉfc (vacant posts). He agitated that the newly inserted Rule 3 Ka to which the 13th batch of examinees the instant petitioners are subject to clearly contemplates that when the initial list is being prepared that list shall reflect the number of vacant posts available for purposes of appointment. He contends that the petitioners relying on the amended Rule 3 Ka particularly 3 Ka of 2015 appeared for their examination particularly relying on the fact that they are appearing for the examination based on n§eÉfc (vacant posts) and that accordingly the merit list shall be prepared. It is clear that the rules contemplate that merit list will be prepared in accordance with the proportion of n§eÉfc (vacant posts) that is keeping in mind the vacant posts available at any particular institution.
He next draws attention to a circular (f¢lfœ) issued by the respondent No. 4 dated 30.12.2015. He takes us to clause 3.0 of the circular (f¢lfœ) which clearly states that NTRCA shall conduct examination every year on the basis of demand of the number of teachers in vacant posts and results shall be published in accordance with the merit list. He next draws attention to clause 5.0 of the circular (f¢lfœ) which set out the procedures for recommendation of appointment of teachers who have been successful in the examination followed by enlistment in the merit list. He submits that it is evident from annexure – D series that all the petitioners in all these writ petitions have been successful in their examination pursuant to a written examination followed by viva-voce in which they obtained minimum 40% marks separately in the written and viva-voce examination which is the criteria for enlistment being in the merit list. He next draws attention to Annexure-C which is the ¢e−u¡N ¢h‘¢ç dated 24.02.2016 relying on which the instant petitioners all made their application and were subsequently selected in the merit list. He points out to clause 10(Jha) of the ¢h‘¢ç wherein it is clearly stated that a written examination shall be conducted and successful candidates in the written examination shall appear for the viva-voce. He submits that all the petitioners relying on clause 10(Jha) of the 13th teacher examination 2016 following notice dated 24.02.2016 appeared for examination and that passed the preliminary written test followed by viva-voce examination as per clause 10(Jha) of the said examination notice. He draws attention to the certificates which are marked as Annexure D series and points out that the results were published on 04.06.2017 and accordingly the petitioners were all granted certificates.
He contends that it is evident from the materials on record read along with the relevant laws and rules that the 13th Teachers’ Registration Examination -2016 were all qualified candidates based on the merit list for recommendation by the NTRCA for purposes of appointment to vacant posts. He agitates that therefore respondent No. 4’s inaction upon refraining from recommending the instant petitioners is completely without lawful authority. He argues that the petitioners earned their legitimate right to be recommended upon success in the examination being enlisted in the merit list pursuant to following the relevant rules in particular Rule 3 Ka read along with clauses 3, 4 and 5 of the circular (f¢lfœ) dated 30.12.2015 which has been annexed as annexure-E. He points out that upon comparison of Rule 3 Ka read with clause 3, 4 and 5 of the circular (f¢lfœ) dated 30.12.2015 it is clear that those candidates who have been selected in the merit list and whose names appear in the merit list shall relying on the provisions of Rule 3 Ka of the Rules pertaining to availability of vacant posts shall receive recommendation for appointment. He submits that therefore in this case apart from legal and statutory rights, the doctrine of legitimate expectation may also be drawn upon. He submits that since relying on the relevant rules along with the fact that the petitioners are enlisted in the merit list following the rules made to the effect followed by their selection in the merit list following the proper procedure in the examination, therefore it is the legitimate expectation of the petitioners to obtain recommendation from the NTRCA.
He submits that the principles of legitimate expectation are enforced in order to achieve fairness. He contends that in this case it is clear that the action of the respondent No. 4 by unreasonably refusing to recommend the petitioners to their respective posts is clearly unfair and unreasonable and belies the doctrine of legitimate expectation.
There was a query from the Bench to the learned Advocate for the petitioner regarding a judgment relied upon by the learned Advocate for the respondent No. 4 passed by this division in Writ Petition No. 1324 of 2017 including several other writ petitions. The learned Advocate for the respondent No. 4 showed that in this judgment the High Court Division gave direction to prepare a national combined merit list of the candidates to avoid discrimination and to avoid violation under Article 29 of the constitution and the learned Advocate for respondent No. 4 pursuaded that the respondents acted upon the direction of the High Court Division complying with the direction by preparing a national merit list as per the direction of this Division.
In reply to such contention of the respondents the learned Advocate for the petitioners points out that there is a difference between the footing of the petitioners in that writ petition with the writ petitioners before us. He particularly points out that the writ petitioners in those writ petitions inter alia Writ Petition No. 1324 of 2017 belong to the 1st – 12th batches of examinees for purpose of recommendation by NTRCA. He particularly points out to the fact that when the 1st – 12 batches examinees appeared for their examination the new Rule 3 Ka of the ¢h¢dj¡m¡ of 2015 was not inserted
and did not come into force. He points out that it is evident from the records that 1st – 12th batches of examinees appeared in their examination before 2015. He continues that the new Rule 3 Ka came into force after their examination that is in the year 2015. He next draws attention to the fact that the instant petitioners applied for their post pursuant to a circular in the year 2016 and also appeared in the examination and received certificate after that. The learned Advocate for the petitioners persuaded that the footing of the writ petition in those writs and the footing of the present petitioners are evidently not the same and are distinguishable since they are not subject to the same rules. He further persuaded that the instant writ petitioners appeared for the examination after the amendment of 2015 by way of Rule 3 Ka came into force. He argues that such being the facts, the petitioners are on a separate footing and shall avail the benefit of the amended Rule 3 ka by relying inter alia on the term n§eÉ fc (vacant post) and ®jd¡ a¡¢mL¡.
He next draws attention that on similar matter and similar issue as the instant writ petitioners some other examinees belonging also to the 13th batch of examinees filed several writ petitions before this division including Writ Petition No. 16307 of 2017. He points out that in this decision categorically relying on the amended Rule 3 ka read with the f¢lfœ of 2015 and read with particularly 10(Jha) of the ¢e−u¡N ¢h‘¢ç 2016 this division directed the respondents to recommend the petitioners pursuant to clause 5.0 of the circular to the ascertained vacant posts as per clause 10(Jha) of the ¢e−u¡N ¢h‘¢ç advertisement of 13th Teachers’ Registration Examination – 2016 in accordance with
their issued certificates. He next submits that this judgment arising out of several Writ Petitions including Writ Petition No. 16307 of 2017 was up held by our Apex Court in Civil Appeal No. 343 of 2019. He particularly takes us to the operative portion of the judgment of our Apex Court dated 12.03.2020 in Civil Appeal No. 343 of 2019 which is as follows:
“There is no scope to appoint any teachers from outside the registered listed and certified candidates by the appointing authority, that is, respective Non- government Educational institutions.”
He draws attention to the operative portion and submits that it is clear from the observation of the Appellate Division that the principle of the judgment in the High Court Division was substantively upheld. He submits that therefore it is clear that it has been already decided by our Apex court that the 13th batch of examinees who were selected and obtained certificate on the basis of merit list pursuant to examination following proper procedures, they have earned a vested right to obtain recommendation from NTRCA and which principle in spirit was substantively upheld by our Apex court. He agitates that apart from the existing rules setting the criteria of the eligibility of the petitioners, the respondents are also bound to follow the directions of the High Court Division since those were upheld by the Appellate Division and therefore binding upon all under Article 111 of the Constitution. He submits that by refraining to recommend the petitioners to their respective posts upon bypassing the rules the respondents are clearly flouting the clear decision of the Appellate Division and also flouting and bypassing the existing laws and Rules.
He next draws attention to Annexure J of the writ petition which is the 3u Ne¢h‘¢ç dated 30.03.2021. Drawing attention to clause 2 of Annexure-J he points out that it is clear that the NTRCA following the direction of the High Court Division which was upheld by the Appellate Division has meanwhile complied with the decision of our Apex court and already recommended the writ petitioners in Writ Petition No. 16307 of 2017 and those writ petitioners have been recommended for purpose of appointment to their respective posts.
He asserts that it is clear from the facts available on record that the instant writ petition and the writ petitioner in writ petitioner No. 16307 of 2017 all appeared in the 13th batch of examination conducted by NTRCA and they were all selected for enlistment in the merit list followed by certificates issued to all of them by NTRCA.
He persuades that it is clear from the materials before us that the instant writ petitioners are on the same footing as those writ petitioners in Writ Petition No. 16307 of 2017 along with the other writ petitions. He continues that consequently by refraining from recommending the instant petitioners, the respondents are committing continuous wrong and illegality by refusing to recommend the instant petitioner to their respective posts.
In the light of his submissions and placing his reliance in the judgment by our Apex court in Civil Appeal No. 343 of 2019 which upheld the High Court Division judgment in Writ Petition Nos. 16307 of 2017, 17506 of 2017, 17896 of 2017, 17961 of 2017, 18100 of 2017, 18727 of 2017 and 18728 of 2017, he concludes his submission upon assertion that all the Rules in Writ petition No. 4940 of 2021, Writ Petition No. 4941 of 2021, Writ Petition No. 4942 of 2021, Writ Petition No. 6451 of 2021 and 8074 of 2021 bears merits ought to be made absolute for ends of justice.
On the other hand learned Advocate Mr. Md. Faruk Hossein appeared for the petitioners in Writ Petition No. 4665 of 2021 and Writ Petition No. 8484 of 202. He substantively supports the submissions of the learned Advocate Mr. M. Moniruzzaman Asad appearing for the petitioners in writ petition No. 4940 of 2021, Writ Petition No. 4941 of 2021, Writ Petition No. 4942 of 2021, Writ Petition No. 6451 of 2021 and 8074 of 2021 and prayed that Rules bear merits ought to be made absolute for ends of justice.
Learned Senior Advocate Mr. Yusuf Hussain Humayun along with Mr. Nazmul Hasan Rakib, Advocate appeared for the petitioners in Writ Petition No. 3499 of 2021 also substantively support the submission of the learned Advocate Mr. M. Moniruzzaman Asad appearing for the petitioners in writ petition No. 4940 of 2021, Writ Petition No. 4941 of 2021, Writ Petition No. 4942 of 2021, Writ Petition No. 6451 of 2021 and 8074 of 2021 and prayed that the Rule bear merits ought to be made absolute for ends of justice.
Learned Advocate Mr. Md. Siddique Ullah Miah appeared for the petitioners in Writ Petition No. 9417 of 2020 also substantively support the submission of the learned Advocate Mr. M. Moniruzzaman Asad appeared for the petitioners in writ petition No. 4940 of 2021, Writ Petition No. 4941 of 2021, Writ Petition No. 4942 of 2021, Writ Petition No. 6451 of 2021 and 8074 of 2021 and prayed that the Rule bear merits ought to be made absolute for ends of justice.
On the other hand learned Advocate Mr. Kamruzzaman Bhuiyan appeared for the respondent No.4 and upon filing affidavit in opposition vehemently opposes all the Rules. At the onset of his submissions he argued that writ is not maintainable in the instant writ petitions since the petitioners have no locus standi. He elaborates that the validity period of their certificates obtained from NTRCA expired on 8.6.2020 and the writ petitions were filed in 2021. He continues that the validity of the certificates issued by the NTRCA are only valid for 3 (three) years therefore the validity of the instant writ petitioner’s certificates having already expired since the certificates were all obtained on 2017 consequently the instant writ petitioners do not have any legal footing to file the writ petitions. He continues that the provisions of section 10(1) of the NTRCA Rules provides that the validity of a period of a certificate shall expire after 3 (three) years of obtaining the certificate therefore evidently the petitioners who obtained the certificate in 2017 automatically the validity of their certificates expired in 2020 while it is evident that the writ petitions were filed as late as 2021.
He next argues that that nowhere in the ¢h¢dj¡m¡ nor in the f¢lfœ is it stated that an examinee just because he has been enlisted in the merit list has earned any vested right to be recommended for purposes of appointment. He argues that mere enlistment in the merit list does not automatically bestow any vested right on any examinee for purposes of appointment to the post of teacher. He elaborates his
submissions upon arguing that recommendation for appointment to the post of teacher shall pursuant to examination depend on the number of vacant posts available in a particular subject and pursuantly after ascertaining the vacant post in any particular subject the examinee shall be appointed in accordance with their merit list. To substantiate his submissions he draws attention to clause- 5.0 and 8.0 of the f¢lfœ dated 30.12.2015. He submits that from the f¢lfœ dated 30.12.2015 clause 5.0 of the f¢lfœ it is clear that only being enlisted from the merit list initially does not confer any vested right and/or legal right to receive recommendation from NTRCA. He submits that clause 5.0 of the f¢lfœ dated 30.12.2015 clearly contemplate a merit list shall be made to meet the demand of teachers upon following the merit list chronologically. On the same issue he contends that against every vacant post one person will be recommended following the chronology in the merit list by the NTRCA and appointment shall be made accordingly by the concerned institution within 1(one) month of receiving the recommendation. He next draws attention to clause 8.0 of the f¢lfœ wherefrom he attempts to show that clause 8.0 also clearly contemplates that for purpose of recommendation of appointment arising out of such merit list shall be followed for appointment of teacher to a particular subject.
He contends that the Respondent prepared a combined merit list following the High Court Division Judgment earlier passed in Writ Petition No. 1324 of 2017. He submits that following the High Court Division judgment in writ petition No. 1324 of 2017 the respondents have already implemented the directions of this division upon
preparing a combined merit list which also the includes 13th batch. He submits that as per the directive of the High Court Division and the combined merit list prepared by the respondent No. 4 meanwhile selected candidates who are top in the list in accordance with the merit list in chronological order have already been recommended by respondent No. 4.
He agitates that only after receiving enlistment the preliminary merit list after obtaining 40% marks in written and viva-voce examination does not ipso facto entail that an examinee is eligible to be recommended for appointment as teacher. He argues that Article 29 of the constitution has not been violated in the instant petitioners case since the petitioners are not on the same footing as those recommended for purposes of appointment. He argues that since the petitioners obtained lower marks than those candidates who have received recommendation therefore evidently, they are not on the same footing as those examinees who have already been recommended. Relying on his submissions he concludes his submissions that therefore the Rules bears no merits ought to be discharged for ends of justice.
Learned D.A.G Mr. Noor Us Sadik Chowdhury appeared on behalf of the respondent Nos. 1-3 and substantively supports the submissions of the learned Advocate for the respondent No. 4 and concludes his submissions that the Rules bears no merits ought to be discharged for ends of justice.
We have heard the learned Advocates for both sides, perused the application and materials on records. We have examined the
relevant rules and particularly the amended ¢h¢dj¡m¡ of 2015. We have
further also perused the judgment passed by the High Court Division
in several writ petition including writ petition No. 16307 of 2017 and
which has been upheld by the Appellate Division in Civil Appeal No.
343 of 2019. The learned Advocate for the respondent No. 4 argued
that a merit list does not indicate any finality regarding recommendation for purpose of appointment to the post of teacher in
the concerned institution. He further argued that mere merit list does
not ipso facto indicate that an examinee is eligible for recommendation for purpose of appointment. He contended that merit
list shall be prepared keeping in mind particularly the demand of
teachers to a vacant post available for a particular subject in the concerned institution. He also argued that examinees will be selected
from the merit list. He further contended that a mere certificate holder
is not automatically entitled to receive recommendation to a post of a
teacher. He agitated that recommendation essentially depend on the
number of vacant posts available and the recommendation must be
followed in accordance with the merit list in chronological order.
On these contentions, he particularly relied upon clause 5.0 and
clause 8.0 of the f¢lfœ dated 30.12.2015. Clause 5.0 and clause 8.0 of
the f¢lfœ dated 30.12.2015 is reproduced hereunder:
“5.0: He.¢V.Bl.¢p.H. Ae-m¡C−e B−hce fС¢çl fl Q¡¢qc¡ J j−d¡œ²j Ae¤k¡u£ fСbÑ£−cl Ah¢qa ®l−M ¢e−u¡N−k¡NÉ fТa¢V f cl ¢hfl£−a 01 Se L−l fСb£Ñl e¡j A¢dk¡QeL¡l£ fТaù¡−e ®fÐlZ Ll−h Hhw ®p Ae¤p¡−l ¢e−u¡NL¡l£ LaѪfr ¢q−p−h ®rœja jÉ¡−e¢Sw L¢j¢V h¡ Ni¢eÑw h¢X ¢eh¡Ñ¢Qa fСb£Ñ hl¡hl 01(HL) j¡−pl j−dÉ ¢e−u¡Nfœ S¡¢l Ll−hz
8.0: C−a¡:f§−hÑ ¢eh¢åa ®jd¡a¡¢mL¡ h¢qi¨Ña fСb£Ñ−cl ®r−œ ¢ehåe pe−c E−õ¢Ma I¢µRL ¢ho−u fСç eð−ll ¢i¢š−a ¢e−u¡−Nl SeÉ
®jd¡œ²j ¢edÑ¡¢la q−hz”
Upon perusal of clause-5.0 it appears that pursuant to the examination
the NTRCA shall submit the name of the candidates of one selected
candidate of one subject to the A¢dk¡QeL¡l£ fТaù¡e .
From our perusal it is however not actually clear as to what the
legislators or authorities formulating the Rules actually implies by the
terms A¢dk¡QeL¡l£ fТaù¡e. Clause 5.0 is certainly not clear as to its
intention and actually who is the A¢dk¡QeL¡l£ fТaù¡e . Therefore we find
lack of clarity in clause 5.0 of the f¢lfœ. Such lack of clarity in the
Rules may lead to disharmony and confusion in the education system
and which is undesirable.
Next we have perused clause 8.0 of the f¢lfœ. The terms ®jd¡a¡¢mL¡ h¢qiѧa fСbÑ£ obviously indicate those candidates who are not in
the merit list. Whereas the latter portion of the provision indicate that
−jd¡œ²j will be ascertained from those who have obtained the highest
number in a particular subject to be recommended to the particular
post. From a plain reading of clause 8.0 it appears that clause 8.0 contemplate even those candidates who are not in the merit list for
purposes of recommendation. Clause 8.0contemplate the selection of a
candidate who have not been successful in average in all subjects,
however they may be eligible for recommendation to a particular post
of teacher if they have obtained the highest number in any optional
subject in a particular subject. Such provision in clause 8.0 of the
f¢lfœ actually causes a matter of anxiety since neither in the scheme of the Rules of 2013 nor in any other law does it contemplate that examinees who are outside the merit list shall even though they are not in the general merit list will however be entitled to received recommendation just because they have earned highest number in an optional subject only. Clause 8.0 of the f¢lfœ is clearly inconsistent with the scheme of the ¢h¢dj¡m¡ of 2006 including the amended ¢h¢dj¡m¡ of 2015. Such inconsistency as noticed in clause 8.0 and vagueness in the intention of the law is also noticed in clause 5.0(as discussed above) which is undesirable. Our considered view is that for purpose of clarity and harmony in the education system which needless to state includes the process of appointment of teacher, more unambiguous clarification on the criteria for appointment is necessary.
The learned Advocate for the petitioners persistently argued that the instant petitioners are not entitled to receive recommendation following their enlistment in the merit list. To substantiate his submissions he argued that the following a directive of the High Court Division in Writ Petition No. 1324 of 2017 along with some other writ petitions, the respondents have already prepared a combined merit list following the judgment in writ petition No. 1324 of 2017. He also contended that according to the direction all the examinees in the 13th batch have been enlisted in the national combined merit list and recommendation have been made to the post of teacher accordingly. The learned Advocate for the petitioners further argued that those who obtained lower mark in the merit list have not been recommended since chronological order of merit list was followed depending on number of vacant posts. He argued that therefore the respondents are not contravening any of the provisions of the constitution and have only abided by the direction of this Division in Writ Petition No. 1324 of 2017.
The learned Advocate for the petitioners to controvert this point raised by the learned Advocate for the respondent No. 4 drew our attention to a relevant and significant fact that the instant petitioners belong to the 13th batch of examinees for purpose of recommendation by the NTRCA. The learned Advocate for the petitioners also drew attention to the fact that the other writ petition No. 1324 of 2017 in which direction was passed by this Division to prepare a national combined merit list those writ petitioners belonged to the 1st – 12th batches Examines. He further drew attention to a significant factor that after the 12th batch of examinees appeared for the examination and received their certificate however, the new amended Rule inserting i Rule 3 Ka of the ¢h¢dj¡m¡ was enacted by gazette notification dated 22.10.2015. He points out that it is evident from the records that the 13th batch of examinees applied online and prepared for the examination and registration for the examination after 22.10.2015 relying upon the new amended Rule 3L of 2015.
Therefore it also our considered view that from the facts itself it clearly appears that the 1st – 12th batches of examinees are not subject to the new amended Rule 3 Ka whereas the instant petitioners who are the 13th batch examinees are subject to avail the benefit Rule of 3 Ka. Therefore we are also of the considered view that the legal status so far pertaining to the rules are clearly distinguishable between the 1st –
12th batches examinees and the 13th batches examinees. To address the issue raised by the 13th batches examinees of the ¢h¢dj¡m¡ of 2006 by
way of S.R.O insert Rule 3Ka in the original Rule of 2006, it is reproduced below:
“¢h¢d 3L, ®hplL¡l£ ¢nrL ¢ehåe, fl£r¡ NËqZ J fÐaÉue ¢h¢dj¡m¡, 2006z n§eÉf−cl pwMÉ¡ ¢el¦fZ:
1.LaѪfr, fТa hvpl e−iðl j¡−pl j−dÉ, ®Sm¡ ¢nr¡ A¢gp−ll j¡dÉ−j ®Sm¡d£e pw¢nÔø ®hlL¡l£ ¢nr¡ fТaù¡epj§−ql fc J ¢hou ¢i¢šL n§eÉ f−cl a¡¢mL¡ pwNËq L¢l−hz
We have carefully examined the language of Rule 3 Ka. It is a general Rule of interpretation of statutes that clear language of statutes
must be followed for purposes of interpretation. Keeping this principle in mind we have examined clause 3ka. It appears that clause
3 Ka particularly mention n§eÉfc by expressly stating n§eÉf−cl pwMÉ¡ ¢el¦fe in the heading and also clause No. 1 of Rule 3K has repeated n§eÉf−cl a¡¢mL¡ pwNËq L¢l−h .
It goes without saying that Rule 3 Ka in clear terms only contemplates the initial steps to be taken for purpose of recommendation of appointment of teachers following further procedures including written examination and viva-voce etc. It is clear
from the language of Rule 3 Ka that the legislature while inserting
Rule 3 ka intended that the initial enlistment which shall be prepared
by the NTRCA upon following the statutory procedures shall be on
the basis of vacant posts.
It is our considered view the petitioners particularly the 13th batch (the instant petitioners) while applying for purpose of registration for appearing in examination evidently and correctly relied upon Rule 3 Ka of the −hplL¡l£ ¢nrL ¢ehåe, fl£r¡ NËqZ J fÐaÉue ¢h¢dj¡m¡, 2006. We have clearly noticed some inconsistency in the f¢lfœ of 2015. However whatever inconsistency there might be in the f¢lfœ it is a general principle of law that f¢lfœ being only a circular
does not have force of law and can be a guideline only. On the other hand the amended ¢h¢dj¡m¡ of 2015 is an enactment of law by way of gazette notification and therefore has the force of law. It is needless to
state that between the ¢h¢dj¡m¡ which has the force of law and the f¢lfœ , evidently the clear Rules of the ¢h¢dj¡m¡ shall prevail over any f¢lfœ that may be issued.
Furthermore we have already stated that the f¢lfœ itself particularly clause 5.0 and clause 8.0 of the f¢lfœ is not clear and needs further elaboration and clarification by unambiguity by the legislator/ authorities as to their intention.
Therefore relying on Rule 3 Ka of the ¢h¢dj¡m¡ 2006 as amended
in 2015 we are of the considered opinion that the instant petitioners examinees who have been enlisted in the merit list following the proper procedures and following the ¢e−u¡N ¢h‘¢ç while making their
initial application relying on the provision of the ¢h¢dj¡m¡ including the amended Rule 3 L of 2015, therefore it is our considered view that the writ petitioners have apart from their statutory right under Rule 3 Ka has also a legitimate exception to be recommended for a particular subject for appointment to a post in a particular subject by the respondents as a constitutional right.
Besides we have also perused the judgment in writ petition No. 16307 of 2017 including others writ petitions which were disposed of by another Bench by a single judgment inter alia in which the High Court Division gave a specific direction to the respondents which is re-produced hereunder:
“Respondents are directed to recommend the petitioners pursuant to Clause 5.0 of the Circular (Annexure D) to the ascertained vacant posts as per Clause 10(Jha) of the advertisement of the 13th Teachers Registration Examination – 2016 (Annexure B) according to their issued certificates within 60(sixty) days from the date of receiving the judgment.”
We have read the principle on which the direction was given in this judgment and it is clear that the same principle as we have applied in disposing of this judgment including relying on Rule 3 Ka of the amended Rule 2015 read with particularly Clause 10(Jha) of the advertisement of the 13th Teachers Registration Examination – 2016 and the other rules those same principles have been followed. It also appears that the substantive principle of that judgment of this division was upheld by our Apex court in Civil Appeal No. 343 of 2019 and binding on all.
It was also brought to our attention by the learned Advocate for the petitioners by way of Annexure J that the respondents have already taken steps to implement the direction of the High Court Division. It goes without saying that the instant writ petitioners and the writ petitioners in Writ Petition No. 16307 of 2017 including other writ petitions belong to the same class and category as they are all examinees of the 13th Teachers Registration Examination – 2016 conducted by the NTRCA. All the writ petitioners in all these writ petitions are selected from the merit list and listed for recommendation and therefore they stand on the same footing and class.
The learned Advocate for the respondent No. 4 argued that the petitioners have no locus standi to file these writ petitions since the validity of the certificate already expired on 08.06.2020. He contended that the petitioners sat for the examination and received their certificates in 2017. Regrettably the contention of the Respondent on this issue is also not sustainable. It may be pertinent to note that the writ petitioners in Writ Petition No. 16307 of 2017 including others in which the judgment was upheld by the Appellate Division also belong to the 13th Teachers Registration Examination – 2016 and they also received their certificate in 2017. It is also pertinent to note that they were recommended to their respective post by respondent No. 4, NTRCA thereafter following the direction of the Appellate Division and which is revealed to us by way of Annexure
‘J’ of the writ petition which is the 3u NZ¢h‘¢ç dated 30.03.2021. Therefore such submission of the learned Advocate for the respondent No. 4 regarding their certificates being ‘invalid’ after expiry of certain period or time does not lie and is not sustainable in the instant case.
Upon hearing the submissions of the learned Advocate for both sides and upon perusal of the relevant Rules and Laws and materials on records and relying on the High Court Division Judgment which was upheld by the Appellate Division in Civil Appeal No. 343 of 2019, we find merit in the Rules.
In the result, all the Rules are made absolute with directions and the observations made above.
The respondents are hereby directed to recommend the petitioners pursuant to Clause 5.0 of the Circular (Annexure E) to the ascertained vacant posts as per Clause 10(Jha) of the advertisement of the 13th Teachers Registration Examination – 2016 according to their issued certificates within 60(sixty) days from the date of receiving the judgment.
Communicate this judgment at once.
Fatema Najib, J:
I agree.
Arif(B.O)