IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 7643 of 2022

IN THE MATTER OF:

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

And

IN THE MATTER OF:

Md. Abdul Karim and others

- Petitioner

-versus-

Bangladesh, represented by its Secretary, Ministry of Education, Bangladesh Seretariat, Shahbag, Dhaka-1000 and others.

-        Respondents.

And

Mr. Md. Shahid Ullah, Advocate

 ......... for the Petitioners. Mr. Md. Ashraful Alam, Advocate

…… for the Respondent No. 2

Mr. Nawroz M.R. Chowdhury, D.A.G. with Mrs. Afroza Nazneen Akther, A.A.G. with Mrs. Anna Khanom (Koli), A.A.G.

........ For the respondents-government.

Heard & Judgment on 30.11.2023.

           Present:

Mr. Justice Md. Jahangir Hossain.

              and

Mr. Justice S M Masud Hossain Dolon

Md. Jahangir Hossain , J:

 This Writ Petition No. 7643 of 2022 has been filed under Article 102 of the Constitution of the People’s Republic of Bangladesh. Rule was issued on 30.06.2022 as “Let a Rule Nisi be issued calling upon the respondents to show cause as to why a

direction should not be passed upon the respondents to reinstate the name of the petitioner in the list of the Monthly Pay Order (MPO) and be disbursed the Government Portion of the Salary in favour of the petitioners with arrears and others admissible benefits (Annexure- “G”) and/or such other or further order or orders passed as to this Court may seem fit and proper.

Short facts relevant for disposal of the Rule are that, the respondents 1,2,3,4,5,6,7,8,9 and 10 are serving in functionaries as public servant. The petitioners obtained the job by filing properly application before the authorities and proper formalities and by giving interview they appointed in the Lautoli High School, Rafiquepur, Begumgonj, Noakhali. The concern authorities served appointed letter to them in different dates. Upon continuation of their service the petitioners name’s were enlisted in the Monthly Pay Order and accordingly they have been Government portion of the salary on several dates as such their right cannot be taken away or cancelled without giving them any chance of being heard but the respondents passed the impugned order dated 09.05.2022 without giving an opportunity of being heard and as such the impugned. Before passing impugned order the respondents ought to have inspected the allegation raised against the petitioners in accordance with the provisions under Article 18.2 of the Nitimala, 2010 but the respondents without making proper inquiry on that particular point most illegally curtailed the Government portion of the salary of the petitioner by passing impugned order which is liable to be declared to have been passed without lawful authority. It is settled principle is that if any allegation was raised by any person who should be cross examined by the prosecuting  person but such privilege were not given to the petitioners. The Ministry of Education does not form a committee in accordance with the provision under Article 19(Ga) and since there were no recommendation in accordance with the said provisions as such the respondents have no authority to continue the order dated 09.06.2022 against the petitioners. Hence the matter. 

Mr. Md. Shahid Ullah, learned Advocate for the petitioners submits that the petitioners obtained the job upon observing all the legal formalities and attending the examination i.e. interview. After proper scrutiny they obtained the job. The petitioners are candidates for those posts only and they have no obligation to administrator the formalities of interview board. In support of his submissions he placed before the court Annexure A to G. Where it is transpires that the petitioner obtained and joined in the service according to the proper rules of the service. It further appears from the annexure that the petitioners were getting the MPO regularly since 2(two) years. We have examined the impugned order dated 09.05.2022 where it is held that

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It appears from the Annexure-G1which was issued by the

NZfËS¡a¿»£ h¡wm¡ cn plL¡l, ¢nr¡ j¿»Z¡mu, j¡dÉ¢jL J EµQ ¢nr¡ ¢hi¡N, ®hplL¡l£ j¡dÉ¢jL-3, h¡wm¡ cn p¢Qh¡mu, Y¡L¡ where they stated the reason for

stopping the MPO of the petitioners. It reveals impugned order and

the Memo that the Ministry already explain about the irregularities

and unlawful activities about the appointment of the different teachers

in the said school where the name of the petitioners also placed in the

report. It appears upon such reason and the basis of the investigation

the Ministry of Education took the decisions to stop the MPO of the

petitioners.

It appears those all are disputed question of fact that the

investigation report and the other allegations raised about the

appointment of the petitioners would be ascertain by this writ court.

Though it appears all the formalities was observed when the

petitioners were selected by the interview board before joining the job.

Mr. Nawroz M.R. Chowdhury, learned Deputy Attorney

General in his submissions contended that as per proper Rules and

Procedure the authority concerned gave chance the petitioners to

answer the allegations against their posting and appointment. Further

after their application authority give them another opportunity for re-

investigation the matter and the petitioners already gave their

statements and answer before the authority. The matter has been

proved by the authority and the Ministry and that there are anomaly

and unlawful activities in their selection and appointment on those

posts.  As such  Ministry  properly  took  their  decision  to  stop  their

MPO’s facilities. There were no violation Rules and Law to take the

decision MPO’s facilities of the petitioners.

Further he submits that the concern authorities issue 2(two) time

notice before the petitioners and gave them chance to answer the show

cause within the Rules and Laws. Lastly he submits the petitioners

wrongly and premature cause and stage filed this Writ Petition before

this Court. Upon such submissions he placed “®hplL¡l£ ¢nr¡ fË¢aù¡e ú¥m,

L mS, j¡â¡p¡ J L¡¢lNl£ ¢nr¡ fË¢aù¡e Hl ¢nrL J LjÑQ¡l£ cl ®hae-i¡a¡¢cl plL¡l£

Awn fËc¡e Hhw Sehm L¡W¡ j¡ pÇf¢LÑa ¢e cÑ¢nL¡ - 2010” where it is clearly

stated in the Rules 19 “cyb: we‡ePbvi Av‡e`b: †Kvb cÖwZôvb/wk‣K, Kg©Pvixi †eZb-fvZvw i miKvwi Ask wk‣v gš¿Yvjq KZ©„K ¯’wMZ, KZ©b I evwZ‡ji weiy‡× wb‡gèv³fv‡e miKv‡ii wbKU cyb: we‡ePbvi Rb¨ Av‡e`b Kiv hv‡e:

11.   mswk ó cÖwZôv‡bi cÖavb ev wk¶K/Kg©Pvix‡K gnvcwiPvjK, gva¨wgK I D”P

wk‣v Awa`ßi/KvwiMwi wk‣v Awa`߇ii wbKU Dchy³ KviY I cÖgvYw` mnKv‡i 3(wZb)

gv‡mi g‡a¨ Av‡e`b Ki‡Z n‡e|

12.   gva¨wgK I D”P wk‣v Awa`ßi/KvwiMwi wk‣v Awa`ßi Bnv cix‣v‡šZi 15

(c‡bi) w`‡bi g‡a¨ ïbvbx MÖnY c~e©K gZvgZmn gš¿bvj‡q †cÖiY Ki‡e|

13.   G m¤úwK©Z wel‡q wk‣v gš¿bvjq KZ©„K MwVZ wb‡gèv³ KwgwU mswk ó wewa-weavb

Abyhvqx P~ovšZ fv‡e wb®úwËi Rb¨ mycvwik cÖ`vb Ki‡e:

1.   Dc-mwPe(mswk ó), wk‣v gš¿Yvjq  -mfvcwZ
2.   gva¨wgK I D”P wk‣v Awa`߇ii cÖwZwbwa 3 Rb   - m m¨

[mnKvix cwiPvjK (K‡jR-3), mnKvix cwiPvjK

(we‡kl), mnKvix cwiPvjK (gva¨-2)]

3.   KvwiMwi wk‣v Awa`߇ii cÖwZwbwa    -m m¨

(4)wmwbqi mnKvix mwPe (kv-13), wk‣v gš¿bvjq   -m m¨-mwPe”.

We have elaborately examined the Rule-19 of the said f¢lfœ z It

is clearly stated in the f¢lfœz

welq: †emiKvix wbgœgva¨wgK I gva¨wgK we`¨vj‡q wk‣K wb‡qvM msµvšZ|

wk‣v  gš¿bvj‡qi  4  †deªyqvix  2010  Zvwi‡Li  m¥viK  bs-kvt13/GgwcI-12/2009/75

gva¨‡g  RvwiK…Z  Ô‡emiKvix  wk‣v  cÖwZôvb  (¯‹yj,  K‡jR,  gv`ªvmv  I  KvwiMwi  wk‣v cÖwZôvbmg~n) Gi wk¶K I Kg©Pvix‡`i †eZb-fvZvw i miKvwi Ask cÖ vb I Rbej

KvVv‡gv  m¤úwK©Z  wb‡`©wkKvqÕ  GB  hvB  _vKzK  bv  †Kb,  wk‣v  Rxe‡b  GKvwaK  Z„Zxq wefvM/†kªYx wb‡q †emiKvix wbgœgva¨wgK we`¨vjq ev †emiKvix gva¨wgK we ¨vj‡q wk‣K

wn‡m‡e wb‡qvMcÖvß I Bb‡W•avix e¨w³MY wb‡qvM msµvšZ Ab¨vb¨ kZ©c~iY mv‡c‡‣, †h

†Kvb †emiKvix wbgœgva¨wgK we`¨vj‡h cÖavb wk‣K ev mnKvix wk‣K Ges †emiKvix

gva¨wgK we ¨vj‡q cÖavb wk‣K, mnKvix cÖavb wk‣K ev mnKvix wk‣K c‡` wb‡qvM

jv‡fi †hvM¨ n‡eb Ges †eZb fvZv eve` miKvwi mnvqZv (GgwcI) cv‡eb g‡g© wk‣v gš¿bvj‡qi 03/08/2009 Zvwi‡Li bs wkg/kvt11/7-1/2009/884 cwicÎ envj _vK‡e|

We have carefully examined the application and the record it

appears the petitioners did not file any review application under Rule

19 (L) before the proper authority.

Over and above it revails that the petitioners have got the opportunity of being heard. There was 2nd time investigation held by

the authority on the basis of the petitioner application. Gross

allegation irregularities regarding the appointment has been found by

the both investigation. These all are the disputed question of fact. It is

admitted the authority concerned properly assign reasons for excluding the names of the petitioner from the list of MPO.

Petitioner obtained principle of “audi alteram partiem”. 

On the other hand as per ¢e cÑ¢nL¡-2010 Hl Rules 19 Hl B m¡ L petitioner did not exhausting the forums filed this pre-mature Writ

Petition before this Court. He may file review petition within 3(three)

months before the authority.     

Upon such observation we do not find any merit in this Rule.

Hence the Rule is discharged without any order as to cost.      Communicate the judgment and order at once.

S. M. Masud Hossain Dolon, J:

I agree.

Md.Majibur Rahman. Bench Officer.