দায়বর্জন বিবৃতি (DISCLAIMER)

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Microsoft Word - W.P. No. 13101 OF 2022 _absolute_

IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(Special Original Jurisdiction)

WRIT PETITION N0. 13101 OF 2022

IN THE MATTER OF:

An application under article 102 (2) (a) (ii) of

the Constitution of the People’s Republic of Bangladesh.

AND

IN THE MATTER OF:

Mohammad Rafiqul Islam

------------------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. Bahauddin Ahmed, AAG

-----For the respondent No.4      Judgment On: 09.05.2024

Present:

Mr. Justice Md. Khasruzzaman

And

Mr. Justice K M Zahid Sarwar 

Md. Khasruzzaman , J:

In the application under article 102 of the Constitution, on 06.11.2022  the  Rule  Nisi  under  adjudication  was  issued  in  the following terms:


1

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the office order dated 19.10.2022 contained in Memo No. 37. 00. 0000. 094. 99. 001. 2022. 46  issued  under  the  signature  of  the  respondent  No.2 directing the respondent No.4 to take departmental action against  the  petitioner  along  with  stopping  his  salary (Annexure-N) should not be declared to have been passed without lawful authority and is of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper”.

It is noted that during pendency of the instant writ petition, on 10.04.2023  the  Assistant  Director  (Secondary-2),  Directorate  of Secondary  and  Higher  Education,  Shikkha  Bhaban,  Dhaka (respondent  No.6)  issued  a  letter  stopping  the  monthly  pay  order (MPO) of the petitioner from March, 2023 contained in memo No. 37.02.0000.107.31.585.2022-851 dated 10.04.2023.

The learned Advocate for the petitioner submits that it is well settled that action taken by the government regarding the matter that is pending before a Court for adjudication in which the Government is a party, is an affront to a judicial proceeding and is an attempt to pre- empting a judgment which is not to be condoned and as such all steps so far have been taken by the parties concern during the pendency of the instant Rule Nisi causing prejudice to the interest of the petitioner.

Considering the submissions made by the learned Advocate for the petitioner, on 17.05.2023 a supplementary Rule Nisi was issued with the following terms:

“Let a supplementary Rule Nisi be issued calling upon the respondents  to  show  cause  as  to  why  the  Memo  No. 37.02.0000. 107.31.585.2022-851 dated 10.04.2023 issued under the signature of the respondent No.6 (Annexure-V) stopping the monthly pay order (MPO) of the petitioner from March, 2023 should not be declared to have been issued  without  any  lawful  authority  and  is  of  no  legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.

Pending  hearing  of  the  Rule  Nisi,  let  operation  of  the Memo  No.  37.02.0000.107.31.585.2022-851  dated 10.04.2023 issued under the signature of the respondent No.6 (Annexure-V) be stayed for a period of 6 (six) months from date.”  

That against the interim order dated 17.05.2023 in Writ Petition No.13101  of  2022,  the  respondents  as  the  petitioners  filed  Civil Petition for Leave to Appeal No.2503 of 2023 before the Appellate Division and upon hearing of the parties, on 30.08.2023 the Judge-In- Chamber of the Appellate Division passed the order in the following terms:

ÒAÎ jxf wcwUkbwU ïbvbxi Rb¨ AvMvgx 29/10/2023 Bs Zvwi‡L Av`vj‡Zi Kvh©ZvwjKvq AšÍfz©³ Kiv †nvK Ges †mB mgqKvj ch©šÍ ZwK©Z Av‡`kwUi Kvh©KvwiZv ¯’wMZ _vK‡e|Ó

During  pendency  of  the  Civil  Petition  for  Leave  to  Appeal No.2503 of 2023, the parties jointly mentioned the matter before us for disposal of the writ petition on merit.

The facts in short lead us to examine that the petitioner has successfully completed his academic career and he has obtained the Degree of Bachelor of Arts (B.A. Pass) from the National University, Gazipur.

The  petitioner  having  required  the  requisite  educational qualification applied for the post of Assistant Teacher in response to the advertisement published by the concerned authority and selection committee selected the petitioner to be appointed for the said post and consequently the petitioner joined in the Char Bandorkhola Senior (Fazil) Madrasha, Sadarpur, Faridpur on 02.12.1995 and since then he had  been  discharging  his  duties  with  honesty,  sincerity  and satisfaction of the authority upto 30.06.1998, and on 11.07.1998 the Principal  of  the  Madrasha  issued  an  experience  certificate  to  that effect.

The name of the petitioner was enlisted in the monthly pay order (MPO)  from  December,  1995  being  Index  No.  340535  as  the Assistant  Teacher  and  since  then  he  had  been  receiving  the government portion of salary against his service till June, 1998.

In  course  of  serving  as  an  Assistant  Teacher  in  the  Char Bandorkhola  Senior  (Fazil)  Madrasha,  Sadarpur,  Faridpur,  the petitioner applied for the post of Assistant Teacher of Matbarer Char R.M.  High  School,  Shibchar,  Madaripur  in  response  to  the advertisement  published  by  the  concerned  authority  and  selection committee selected the petitioner to be appointed for the said post and consequently, the petitioner joined in the said school on 01.07.1998 and  since  then  he  had  been  discharging  his  duties  with  honesty, sincerity  and  satisfaction  of  the  authority  till  24.05.2003,  and  on 26.05.2003  the  Headmaster  of  the  school  issued  an  experience certificate to that effect.

The name of the petitioner was enlisted in the monthly pay order (MPO) from October, 1998 with effect from July, 1998 being Index No.  340535  as  an  Assistant  Teacher  and  since  then  he  had  been receiving  the government  portion  of  salary  against  his  service  till May, 2003.

In course of serving as an Assistant Teacher in the Matbarer Char R.M. High School, Shibchar, Madaripur, the petitioner applied for  the  post  of  Assistant  Teacher  of  Kazir  Pagla  A.T.  Institution, Louhajang, Munshigonj in response to the advertisement published by the  concerned  authority  and  selection  committee  selected  the petitioner to be appointed for the said post and consequently, the petitioner joined in the school on 24.05.2003 and since then he had been discharging his duties with honesty, sincerity and satisfaction of the  authority  till  01.12.2007  as  an  Assistant  Teacher  and  from 03.12.2007  to  24.12.2009  as  the  Assistant  Headmaster, and  on 10.04.2010 the Headmaster of the said school issued an experience certificate to that effect.

The name of the petitioner was enlisted in the monthly pay order (MPO) from December, 2003 with effect from May, 2003 being Index No.  340535  as  an  Assistant  Teacher  and  since  then  he  had  been receiving  the government  portion  of  salary  against  his  service  till December, 2009.

In course of serving as an Assistant Teacher in the Kazir Pagla A.T.Institution,  Louhajang,  Munshigonj,  the  petitioner  applied  for getting permission to complete B.Ed Course and having considered the said prayer of the petitioner, on 21.04.2005 the Headmaster of the said Institution issued a letter allowing the petitioner to complete the B.Ed degree with imposing some terms and conditions.

The  petitioner  obtained  B.Ed  degree  from  the  National University, Gazipur in the year of 2006 and since then he is eligible to be appointed as the Headmaster or Assistant Headmaster of the Non- Government Secondary School of the Country.

In course of serving as an Assistant Headmaster in the Kazir Pagla A.T.Institution, Louhajang, Munshigonj, the petitioner applied for getting permission to study higher degree i.e M.A and having considered  the  said  prayer  of  the  petitioner,  on  30.09.2008  the Headmaster of the Institution issued a letter allowing the petitioner to study higher degree i.e M.A degree.

Subsequently, the petitioner obtained a degree of Master of Arts (M.A) from the Darul Ihsan University, Dhaka in the year of 2010 though the said degree is not essential or required to be appointed as the  Headmaster  of  the  Non-Government  Secondary  School  of  the Country.

In course of serving as an Assistant Headmaster in the Kazir Pagla A.T.Institution, Louhajang, Munshigonj, the petitioner applied for the post of Headmaster of Surjonagar Mahfuza Nishat Girls’ High School,  Shibchar,  Madaripur,  in  response  to  the  advertisement published by the concerned authority and selection committee selected the petitioner to be appointed for the said post and consequently, the petitioner joined in the said school on 12.07.2010 and since then he had  been  discharging  his  duties  with  honesty,  sincerity  and satisfaction  of  the  authority  concerned  till  29.11.2014  as  the Headmaster of the school and on 03.12.2014 the Chairman of the Managing  Committee  of  the  said  school  issued  an  experience certificate to that effect.

The name of the petitioner was enlisted in the monthly pay order (MPO) from January, 2011 with effect from July, 2010 being Index No. 340535 as the Headmaster and since then he had been receiving the government portion of salary against his service till November, 2014.

In course of serving as Headmaster in the Surjonagar Mahfuza Nisat Girls’ High School, Shibchar, Madaripur, the petitioner applied for the post of Headmaster of Sheikh Fazilatunnessa Pilot Girls’ High School,  Shibchar,  Madaripur  in  response  to  the  advertisement published  by  the concerned  authority  and  the  selection  committee selected  the  petitioner  to  be  appointed  for  the  said  post  and consequently, the petitioner joined in the said school on 26.11.2014 in response to the appointment letter dated 22.11.2014 issued by the Chairman of the managing committee of the school and since then he has been discharging his duties with honesty, sincerity and satisfaction of the authority concerned.

The name of the petitioner was enlisted in the monthly pay order (MPO) from January, 2015 with effect from November, 2014 being Index No. 340535 as the Headmaster and since then he has been receiving the government portion of salary against his service.

While the petitioner was discharging his duties with honesty, sincerity and satisfaction of the authority concerned, one Md. Zahirul Islam, the Office Assistant, Sheikh Fazilatunnessa Government Pilot

Girls’ High School, Shibchar, Madaripur made an allegation against

the petitioner by way of application before the Director General, Directorate of Secondary and Higher Education, Shikkha Bhaban, Dhaka (respondent No.4) under the subject of ÒGg.G (cvk) Gg.GW Ges we.GW mb` Rvj K‡i RvZxqKiYK…Z gva¨wgK we`¨vj‡q cÖaw bk ÿK c‡` envj _vKv cÖm‡½Ó.

On the basis of the said allegation, an enquiry committee was formed  consisting  of  2  (two)  members  by  the  Directorate  of Secondary and Higher Education, Shikkha Bhaban, Dhaka contained in memo No. 37.02.0000.106.27.002.20.1132 dated 07.12.2020.

In  pursuance  of  the  letter  dated  07.12.2020,  the  enquiry committee  submitted  an  enquiry  report  before  the  Secretary, Secondary  and  Higher  Education  Division,  Ministry  of  Education, Dhaka  (respondent  No.1)  contained  in  memo  No. 37.02.0000.106.27.002.20.841  dated  06.07.2022,  but  no  enquiry report was served upon the petitioner.

Having  considered  the  enquiry  report  dated  06.07.2022  and without supplying the enquiry report and without issuing any show cause notice upon the petitioner, on 19.10.2022 the Deputy Secretary, Discipline Affairs Section, Secondary and Higher Education Division, Ministry  of  Education,  Dhaka  (respondent  No.2)  issued  a  letter directing the Director General, Directorate of Secondary and Higher Education,  Shikkha  Bhaban,  Dhaka  (respondent  No.4)  to  take departmental  action  against  the  petitioner  along  with  stopping  his salary contained in memo No. 37. 00. 0000. 094. 99. 001. 2022. 46 dated 19.10.2022.

By filing an application for issuance of an supplementary Rule Nisi, the petitioner stated that on 18.12.2022 the Assistant Director (Secondary  -2),  Directorate  of  Secondary  and  Higher  Education, Shikkha Bhaban, Dhaka (respondent No.6) issued a show cause notice upon the petitioner in order to stop his MPO. Upon receipt of the show cause notice dated 18.12.2022, the petitioner furnished a reply wherein he denied the allegation brought against him.

On 12.01.2023 the Assistant Director (Secondary-2), Directorate of  Secondary  and  Higher  Education,  Shikkha  Bhaban,  Dhaka (respondent No.6) issued a show cause notice upon the petitioner in order to stop his MPO.

On 10.04.2023 the Assistant Director (Secondary-2), Directorate of  Secondary  and  Higher  Education,  Shikkha  Bhaban,  Dhaka (respondent No.6)  issued a letter stopping the monthly pay order (MPO) of the petitioner from March, 2023 contained in memo No. 37.02.0000.107.31.585.2022-851 dated 10.04.2023.

Though the school of the petitioner is government, the status of the  petitioner  is  not  a  government  servant  as  the  service  of  the petitioner has yet not been absorbed as government servant and as such the instant writ petition is maintainable.

Against  that  backdrop,  the  petitioner  filed  the  instant  writ petition and obtained the above  Rule Nisi and supplementary  Rule Nisi.

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

By filing supplementary affidavit, the petitioner stated that in response to the advertisement published in “The Daily Ittefaq” dated 11th September, 2014, on 24th September, 2014 the petitioner applied for the post of Headmaster of Sheikh Fazilatunnessa Pilot Girls’ High School, Shibchar, Madaripur. On 15.11.2014 the selection committee selected  the  petitioner  to  be  appointed  for  the  said  post  and recommended  him  to  be  appointed  as  the  Headmaster  of  Sheikh Fazilatunnessa  Pilot  Girls’  High  School,  Shibchar,  Madaripur.  On 24.10.2020 Mohammad Rafiqul Islam made a GD with the Fatullah Police Station, Narayangonj being entry No.1508 dated 24.10.2020 for using forged certificate and on 26.10.2020 the said person made a complaint before the Upazila Nirbahi Officer, Shibchar, Madaripur about the forged certificate. On 26.11.2020 Mohammad Rafiqul Islam made a GD entry with Fatullah Police Station, Narayangonj being GD entry No.1750 dated 30.11.2020 for withdrawing the earlier GD entry and on 26.11.2020 the said person filed two applications before the Upazila  Nirbahi  Officer,  Shibchar,  Madaripur  and  the  Director General, Directorate of Secondary and Higher Education, Dhaka for withdrawing the allegation of using forged M.A pass certificate.

Mr. Md. Humayun Kabir, the learned Advocate appeared on behalf  of  the  petitioner  and  Mr.  Mr.  Bepul  Bagmar,  the  learned Deputy Attorney General appeared on behalf of the respondent No.4.

Mr. Md. Humayun Kabir, the learned Advocate appearing for the  petitioner  submits  that  the  Government  has  no  supervisory, recommendatory or controlling authority over the affairs and activities of any school, college and Madrasha, and it is the function of the Board. The government clearly overstepped its boundaries in issuing the direction in question and it can not be justified on any account and as  such  the  impugned  order  dated  19.10.2022  (Annexure-N)  is required  to  be  declared  to  have  been  issued  without  any  lawful authority and is of no legal effect.

Mr. Md. Humayun Kabir, the learned Advocate further submits that the impugned order has been passed on the basis of an enquiry report, but the said enquiry report was not served upon the petitioner and non-service of the copy of the enquiry report to the petitioner along with a show cause notice had seriously prejudiced the petitioner in representing his case which infringed the rules of natural justice and as such the impugned order dated 10.04.2023 (Annexure-V) is required to be declared to have been issued without lawful authority and is of no legal effect.

Mr. Kabir also submits that under the provision of clause-18(1)

of the Ò‡emiKvix wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I Gg.wc.I bxwZgvjv- 2021Ó, the Ministry of Education is the only authority to stop/cancel

the MPO of the petitioner or omit/exclude the name of the petitioner from the MPO list, but in the instant case, the Assistant Director (Secondary-2),  Directorate  of  Secondary  and  Higher  Education, Shikkha Bhaban, Dhaka (respondent No.6) stopped the monthly pay order (MPO) of the petitioner which is illegal and without jurisdiction

as he has no power and jurisdiction to stop the monthly pay order (MPO) of the petitioner under the said provision of clause-18(1) of the “Guidelines-2021” and as such the impugned order dated 10.04.2023 (Annexure-V) is required to be declared to have been issued without any lawful authority and is of no legal effect.

So, he prays for making the Rule Nisi absolute.

To substantiate his submissions the learned Advocate for the petitioner cited the decisions in the case of-

  1.               Mahmodul Hasan (Md) Vs. Government of Bangladesh & others, 19 BLC (2014) 464. 
  2.            Board of Intermediate and Secondary Education, Dhaka, represented by its Chairman and others Vs. Md. Faizur Rahman & others, 51 DLR (AD) 59.

(iii)        Shaikh  Rezaul  Karim  Vs.  Government  of  the  People’s Republic of Bangladesh and others, 3 CLR (HCD) 216.

(iv)        Md.  Fazlul  Haque  and  others  Vs.  Government  of Bangladesh & others, 3 ALR (HCD)-53.

(v)           Md. Torab Ali Vs. Bangladesh Textile Mills Corporation

&  another, 41 DLR 138.

(vi)        Sayeedul Huq Bhuiyan (Md) Vs. Chairman, BADC and others, 8 BLC (2003) 47.

(vii)     Bangladesh  Agricultural  Development  Corporation  Vs. Saidul Huq Bhuiyan, 8 BLC (AD) (2003) 49.

Mr.  Bepul  Bagmar,  the  learned  Deputy  Attorney  General appearing on behalf of the respondent No.4 submits that on the basis of an enquiry report dated 28.03.2022 (Annexure-2), the monthly pay order (MPO) of the petitioner has been stopped and as such the Rule Nisi is liable to be discharged.

Mr.  Bepul  Bagmar  further  submits  that  the  petitioner  was enlisted in MPO by using forged documents on that ground the MPO was  stopped  following  the  due  process  of  law  and  allowing  the procedural  safeguards  and  as  such  the  Rule  Nisi  is  liable  to  be discharged.

We have considered the submissions of the learned Advocate for both the parties and perused the petition along with other materials on record in order to adjudicate the matter.

For  the  sake  of  our  expedient,  we  have  gone  through Annexures-A, A-1 and A-2 that were the academic certificates of the petitioner  and  it  revealed  that  the  petitioner  has  successfully completed his academic career and he has obtained the Degree of Bachelor of Arts (B.A. Pass) from the National University, Gazipur and with the required educational qualifications to be appointed as an Assistant Teacher of a Non-Government School of the Country and the petitioner was appointed as an Assistant Teacher.

From the records (Annexures-B, C, D, F, I, W, W-1, X, J, J-1, K, N and V), it is evident and proved that the petitioner was the Assistant  Teacher  of  Char  Bandokhola  Senior  (Fazil)  Madrasha, Sadarpur, Faridpur from 02.12.1995 to 30.06.1998 and subsequently, the petitioner was the Assistant Teacher of Matbarer Char R.M. High School,  Shibchar,  Madaripur  from  01.07.1998  to  24.05.2003.  The petitioner was the Assistant Teacher of Kazir Pagla A.T. Institution, Louhajang, Munshiganj from 24.05.2003 to 02.12.2007 and he was the Assistant Headmaster of the said Institution from 03.12.2007 to 24.12.2009. The petitioner obtained B.Ed degree from the National University,  Gazipur  in  the  year  of  2006.  The  petitioner  was  the Headmaster  of  Surjonagar  Mahfuza  Nishat  Girls’  High  School, Shibchar, Madaripur from 12.07.2010 to 29.11.2014. The petitioner applied for the post of Headmaster of Sheikh Fazilatunnessa Pilot Girls’ High School, Shibchar, Madaripur enclosing a Bio-Data, where the petitioner did not mention his M.A degree in that Bio-Data. The selection  board  recommended  the  petitioner  for  the  post  of Headmaster  of  Sheikh  Fazilatunnessa  Pilot  Girls’  High  School, Shibchar,  Madaripur.  The  petitioner  got  appointment  letter  as  the Headmaster  of  Sheikh  Fazilatunnessa  Pilot  Girls’  High  School, Shibchar,  Madaripur  and  the  petitioner  joined  the  said  school  on 26.11.2014  as  the  Headmaster.  The  name  of  the  petitioner  was enlisted in the monthly pay order (MPO) from January, 2015 as the Headmaster  of  Sheikh  Fazilatunnessa  Pilot  Girls’  High  School, Shibchar, Madaripur. On 19.10.2022 the Deputy Secretary, Discipline Affairs Section, Secondary and Higher Education Division, Ministry of Education, Dhaka (respondent No.2) issued a letter directing the Director General,  Directorate of Secondary and Higher Education, Shikkha  Bhaban,  Dhaka  (respondent  No.4)  to  take  departmental action against the petitioner along with stopping his salary contained in memo No. 37. 00. 0000. 094. 99. 001. 2022. 46 dated 19.10.2022. On 10.04.2023 the Assistant Director (Secondary-2), Directorate of Secondary  and  Higher  Education,  Shikkha  Bhaban,  Dhaka (respondent No.6)  issued a letter stopping the monthly pay order

Now the following questions are required to be decided:

  1.              Whether the Master’s degree is required to be appointed as the Headmaster of any secondary school or not.
  2.           Whether the office order dated 19.10.2022 contained in Memo No. 37. 00. 0000. 094. 99. 001. 2022. 46 issued under the signature of the Deputy Secretary, Discipline Affairs  Section,  Secondary  and  Higher  Education Division, Ministry of Education, Dhaka (respondent No.2) (Annexure-N) is lawful or not.
  3.       Whether the office order dated 10.04.2023 contained in Memo No. 37.02.0000. 107.31.585.2022-851 issued under the  signature  of  the  Assistant  Director  (Secondary-2), Directorate of Secondary and Higher Education, Shikkha Bhaban, Dhaka (respondent No.6) stopping the monthly pay  order  (MPO)  of  the  petitioner  from  March,  2023 (Annexure-V) is lawful or not.

We  are  inclined  to  pass  observation  and  decision  about  the above three issues.

It is admitted that the petitioner joined as the Headmaster of the Sheikh Fazilatunnessa Pilot Girls’ High School, Shibchar, Madaripur on 26.11.2014 at the time of appointment as the Headmaster of the said School, the terms and conditions of the service of the petitioner is governed  by  the  “The  Recognised  Non-Government  Secondary School Teachers (Board of Intermediate and Secondary Education, Dhaka) Terms and Conditions of Service Regulation, 1979”.

The  SCHEDULE  of  regulation  4  of  “THE  RECOGNISED NON-GOVERNMENT  SECONDARY  SCHOOL  TEACHERS (BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, DHAKA)  TERMS  AND  CONDITIONS  OF  SERVICE REGULATION, 1979” deals with the qualification and experience of the Headmaster of a Non-Government Secondary School. Schedule of the regulation 4 read as follows:

SCHEDULE

 

Name of post

Qualification and experience

Headmaster

Second  Class  Master’s  degree  with B.Ed or its equivalent degree from a recognized  University  and  10  years’ experience in teaching or educational administration.

Or

Second  Class  Bachelor  degree  with Second  class  B.Ed.  or  its  equivalent

 

 

degree  from  a  recognized  University and 12 years’ experience in teaching or educational administration.

Or

Bachelor  degree  with  B.Ed.  or  its equivalent  degree  from  a  recognized University and 15 years’ experience in teaching or educational administration.

On plain reading of the said schedule of the regulation 4 of the Regulations, 1979, it appears that Master’s degree is not the only criterion for appointment as the Headmaster of a Non-Government Secondary School. Moreover, Bachelor degree holder is eligible to be appointed as the Headmaster and as such question of using forged certificate of Master’s degree does not arise at all. In this regard, in the case of Mahmodul Hasan (Md) Vs. Government of Bangladesh & others, 19 BLC (2014) 464, the High Court Division observed that:

“18.  It is evident that within the frame work of the Rules, 2009 DO letter being issued by the respective Member of Parliament of the respective constituency has no role to play towards issuance of license of a Nikah Registrar. In that view of the matter, question of revocation of license will come into play only on the allegation of misconduct as defined in rule 11 of the Rules, 2009. However, one of the misconducts is Ò‡h †Kvb ai‡bi Z‡_¨i wg_¨v eY©bvÓ. In this regard, the word ÒZ_¨Ó correspond  to  the  information  as  provided under  rule  8  of  the  Rules,  2009.  Since  the respondent-government has not alleged violation of rule  8  of  the  Rules,  2009  and  as  such,  on  the allegation  of  submitting  forged  DO  letter,  which does  not  regulate  the  appointment  of  a  Nikah Registrar can not be cancelled within the framework of  Rules,  2009,  the  license  of  the  petitioner  as  a Nikah Registrar can not be knocked down on that count only.” 

On  perusal  of  the  result  sheet  prepared  by  the  Selection Committee on 15.11.2014 (Annexure-X), it appears that the petitioner did not mention his educational qualification as Master’s degree.

We are of the view that Master’s degree is not only criterion for appointment as the Headmaster of the Non-Government Secondary School.

It is also admitted that on 19.10.2022 the Deputy Secretary, Discipline Affairs Section, Secondary and Higher Education Division, Ministry  of  Education,  Dhaka  (respondent  No.2)  issued  a  letter directing the Director General, Directorate of Secondary and Higher Education,  Shikkha  Bhaban,  Dhaka  (respondent  No.4)  to  take departmental  action  against  the  petitioner  along  with  stopping  his salary contained in memo No. 37. 00. 0000. 094. 99. 001. 2022. 46 dated  19.10.2022  (Annexure-N).  But  the  said  direction  is  not sustainable in the eye of law on the ground that the Government has no  authority  to  direct  the  Director  General  (DG)  to  initiate  any departmental  proceeding  against  the  petitioner  and  also  the government  has  no  supervisory,  recommendatory  or  controlling authority over the affairs and activities of any school, college and Madrasha, and it is the function of the Board. The government clearly overstepped its boundaries in issuing the direction in question and it can not be justified on any account. Our view finds support from the case  of  Board  of  Intermediate  and  Secondary  Education,  Dhaka, represented by its Chairman and others Vs. Md. Faizur Rahman and others, 51 DLR (AD) 59.

Now question remains, the Assistant Director (Secondary-2), Directorate  of  Secondary  and  Higher  Education,  Shikkha  Bhaban, Dhaka (respondent No.6) is legally authorized to stop the monthly pay order (MPO) of the petitioner from March, 2023 (Annexure -V).

Under clause 18.1 of the Ò‡emiKvwi wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I GgwcI bxwZgvjv, 2021Ó, the Secondary and Higher Education

Division, Ministry of Education is authorized to stop the MPO of the

teachers and employees of the institution temporarily or curtail the said benefit partially or wholly.

In the case of Md. Fazlul Haque Vs. Government of Bangladesh

& others, 3 ALR (2014) 53, it was held that: 

“12. The Rules is clear that the only authorized person can  stop  the  Government  portion  of  salaries  for  the teachers  and  employees  of  the  Non-Government Registered  Primary  School.  Despite  very  much  clear provision of law that the D.G (CPE) in only authorized person to stop the Government portion of salaries of Non- Government Registered Primary School. In absence of any provision of sub delegation, the DG, CPE can not delegate his power to others. It is indispensable that a discretion conferred by a Statute should be exercised by the authority upon whom it is conferred and by no body else. The power given  to  the  Director  General,  Compulsory  Primary Education can not exercised by the Director. We stress that the Director has been initiated the second inquiry by a telephonic direction (ANNEXURE-B) which is a malafide and colourable exercise of power. Discretion conferred by Statute  has  to  be  exercised  honestly  and  fairly  having regards to the purpose of the statute conferring it and not according  to  personal  whims  or  humor  of  the  person clothed with the discretion.

  1.        The  Latin  principle  delegate  potestas  non  potest delegari states that ‘no delegated powers can be further delegated.’ Alternatively, it can be stated delegatus non protest delegare,’ one to whom power is delegated can not himself further delegate that power.’ (Mullan, D.J. (2001) Essentials of Canadian Law: Administrative Law. Toronto: Irwin Law. P.368).
  2.        In the case of Barium Chemicals Vs. C.L. Board, AIR 1967 SC 295, we can ascertain that discretion vested in a particular body or authority can not sub delegate to some  other  authority  unless  statute  permits  such  sub delegation.
  3.        We  are  of  the  view  that  since  the  initiation  of proceeding against the petitioners is against the rule of sub delegation, the decision of the respondents is void ab initio and malafide.”

In the case of Shaikh Rezaul Karim Vs. Government of the People’s  Republic  of  Bangladesh,  represented  by  the  Secretary, Ministry of Education and others, 3 CLR (HCD) (2015) 216, it was held that:

“23. However, nowhere within the four corners of the said “Janabol Kathamo”, the power to suspend or curtail MPO of the respective teachers and staffs by the said Ministry appears to have been delegated to the Directorate concern. In that view of the matter stopping MPO of the petitioner by the respondent No.4 vide Memo No. 4wR-676- g/11/877/03 dated 11.02.2014 (Annexure-D) is without jurisdiction.

24.  Since it is our concerned view that the impugned order  has been  passed  by  the  respondent  No.4  without jurisdiction so far the case of the petitioner is concerned as such, on the account of having alternative forum under clause 19 of the “Janabal Kathamo,2010’ the petitioner can  not  be  barred  from  invoking  equitable  relief  as provided under Article 102 of the Constitution in other words, this Rule is maintainable.”

In  the  case  of  Md.  Torab  Ali  Vs.  Bangladesh  Textile  Mills Corporation & another, 41 DLR 138 where it was argued by the learned Council for the respondent corporation that the law does not provide for supplying of a copy of the report of the enquiry officer  along  with  the  second  show  cause  notice.  But  their Lordships held:

 A  second  show  cause  notice  is,  in  fact,  the  accused employee’s last opportunity to place his side of the case before the appointing authority who is about to take the last decision against the accused employee armed with the report of the enquiry officer. The accused employee has the  burden  of  disabusing  the  mind  of  the  appointing authority from the impression created by the report of the enquiry officer. If he does not get a copy of the report, he has no means of knowing what finding or findings of the enquiry  officer  have  gone  against  him  and  what  have weighed  with  the  appointing  authority  in  coming  to  a decision  as  to  the  punishment  proposed  to  be  inflicted upon him. He does not know on what point or points he should  address  himself  to  the  appointing  authority. Without the report he is groping in the dark. The second show cause notice, no doubt, requires him only to show cause why the proposed punishment shall not be inflicted upon him. But upon perusal of his reply, the appointing authority may still take any view of his guilt. The second show cause notice, therefore is not an idle formality. In order  to  be  meaningful,  it  has  to  be  accompanied  or followed by the report of the enquiry officer. So, whether or not rules or regulations provided for a copy of the report to be given to the accused employee, the rules of natural justice  require  that  along  with  the  second  show  cause notice that accused employee should be furnished with the same. Failure to do so will be a failure to comply with the principles of natural justice which will be read into the Rules or Regulations.”

In  the  case  of  Sayeedul  Huq  Bhuiyan  (Md)  Vs.  Chairman, BADC and others, 8 BLC (2003) 42, it was held that:

“Non service of a copy of the inquiry report upon the petitioner either along with the second show cause notice or thereafter, being the admitted position, the petitioner was seriously prejudiced in representing his side of the case and this infringement of the rules of natural justice has rendered the dismissal illegal.”

The said decision was affirmed by the Appellate Division of the Supreme Court in the case of Bangladesh Agricultural Development Corporation  Vs.  Saidul  Huq  Bhuiyan,  8  BLC  (AD)  (2003)  49 observing that there is no provision in the Service Regulations of the Bangladesh Agricultural Development Corporation to supply a copy of the enquiry report along with the second show cause notice but the respondent No.1 was served with the second show cause notice asking him for giving reply in the light of the enquiry report without serving the  enquiry  report  which  was  also  made  the  basis  for  awarding punishment  and  thereby  the  opportunity  of  giving  effective representation has been denied.

Considering the facts and circumstances of the case, we are of the  view  that  the  Assistant  Director  (Secondary-2),  Directorate  of Secondary  and  Higher  Education,  Shikkha  Bhaban,  Dhaka (respondent No.6) traveled far beyond his jurisdiction in issuing the impugned order Memo No. 37.02.0000. 107.31.585.2022-851 dated 10.04.2023 (Annexure -V) stopping the monthly pay order (MPO) of the petitioner from March, 2023.

It  is  to  be  noted  here  that  withholding  of  the  payment  of government portion of salaries once by way of punishment and such punishment may not be legally imposed upon him by the concerned authority without sanction of law for the purpose. Before imposing such punishment authority must be issued a notice giving sufficient opportunity to controvert the allegations brought against him.

It  is  further  to  be  noted  here  that  the  right  to  salary  is  a fundamental  rights  because  it  is  directly  linked  with  his  or  her livelihood and the livelihood of his / her dependents.  

In view of the above recorded deliberation, we are of the view that  the  Secondary  and  Higher  Education  Division,  Ministry  of Education and the Directorate of Secondary and Higher Education, Dhaka (respondent Nos.1 & 4) committed similar mistake again and

again about the application or implication of the clause No.18 of the Ò‡emiKvwi wkÿv cÖwZôv‡bi (¯‹zj I K‡jR) Rbej KvVv‡gv I GgwcI bxwZgvjv, 2021Ó, (in short, the Nitimala, 2021) and as such number of writ petitions have been filed before this Division only on the procedural defect(s).

However, we take this opportunity to  make some guidelines only in order to avoid further complications in such matters.

Be that as it may, having regard to the somewhat unusual facts and circumstances of the case and having considered the submissions together the decisions referred to by the contending sides, we are inclined to formulate some guidelines in respect of stopping monthly pay  order  (MPO)  of  the  teachers  and  employees  of  the  Non- Government Educational Institutions. The guidelines are:

  1. On an allegation or suo moto, as the case may be, the Secondary  and  Higher  Education  Division,  Ministry  of Education can initiate a regular proceeding against any teacher or employee of  a Non-Government Educational Institutions  by  issuing  show  cause  notice  stating  the specific allegation(s) thereon for the purpose of stopping monthly pay order (MPO).
  2. Upon  receipt  of  the  reply  (if  any)  furnished  by  the teacher(s) or the employee(s), the Secondary and Higher Education Division, Ministry of Education, if being not satisfied, constituted an enquiry committee consisting of 3 (three)  members.  In  case  of  conflicting  opinion  of  the members  of  the  enquiry  committee,  the  majority  will prevail.
  1. Upon  receipt  of  the  enquiry  report,  the  Secondary  and Higher  Education  Division,  Ministry  of  Education,  if found sufficient reason to be proceeded, issued a 2nd show cause notice along with the enquiry report.
  2. Upon  receipt  of  the  reply  (if  any)  furnished  by  the teacher(s) or the employee(s), the Secondary and Higher Education Division, Ministry of Education, if being not satisfied, took a final decision about the stoppage of the monthly pay order (MPO) of the teacher(s) or employee(s) of the Non-Government Educational Institutions.
  3. Before passing final decision about the stoppage of the monthly pay order (MPO), the monthly pay order (MPO) of the teacher(s) or employee(s) of the Non-Government Educational Institutions can not be stopped temporarily by the Secondary and Higher Education Division, Ministry of Education.

Regard to the facts and circumstances of the case, the materials on record and in view of the discussions made above and for the foregoing reasons, we have no hesitation to hold that the office order vide Memo No. 37. 00. 0000. 094. 99. 001. 2022.46 dated 19.10.2022 issued under the signature of the Deputy Secretary, Discipline Affairs Section,  Secondary  and  Higher  Education  Division,  Ministry  of Education, Dhaka (respondent No.2) directing the Director General, Directorate  of  Secondary  and  Higher  Education,  Shikkha  Bhaban, Dhaka  (respondent  No.4)  to  take  departmental  action  against  the petitioner along with stopping his salary (Annexure-N) and also the office order vide Memo No. 37.02.0000. 107.31.585.2022-851 dated 10.04.2023  issued  under  the  signature  of  the  Assistant  Director (Secondary-2),  Directorate  of  Secondary  and  Higher  Education, Shikkha Bhaban, Dhaka (respondent No.6) stopping the monthly pay order (MPO) of the petitioner from March, 2023 (Annexure-V) were issued without lawful authority and are of no legal effect.

Both  the  Rule  Nisi  and  the  supplementary  Rule  Nisi  merit consideration  which  should  be  made  absolute  with  consequential relief.

In the result, both the Rule Nisi and the supplementary Rule Nisi are made absolute.

The office order contained in Memo No. 37. 00. 0000. 094. 99. 001.  2022.46  dated  19.10.2022  issued  under  the  signature  of  the Deputy Secretary, Discipline Affairs Section, Secondary and Higher Education Division, Ministry of Education, Dhaka (respondent No.2) directing the Director General, Directorate of Secondary and Higher Education,  Shikkha  Bhaban,  Dhaka  (respondent  No.4)  to  take departmental  action  against  the  petitioner  along  with  stopping  his salary  (Annexure-N)  and  also  the  office  order  vide  Memo  No. 37.02.0000. 107.31.585.2022-851 dated 10.04.2023 issued under the signature  of  the  Assistant  Director  (Secondary-2),  Directorate  of Secondary  and  Higher  Education,  Shikkha  Bhaban,  Dhaka (respondent  No.6)  stopping  the  monthly  pay  order  (MPO)  of  the petitioner from March, 2023 (Annexure-V) are declared to have been issued without lawful authority and are of no legal effect.

Consequently, the petitioner is entitled to get his arrear salaries. Accordingly,  the  respondents  are  hereby  directed  to  pay  the government portion of salary of the petitioner from March, 2023 and onwards  within  1  (one)  month  from  the  date  of  receipt  of  this judgment.

There will be no order as to costs. Communicate the order.

K M Zahid Sarwar, J:                                                                    I agree.