IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(CIVIL REVISIONAL JURISDICTION)
Present:
Mr. Justice Zafar Ahmed
Civil Revision No. 1935 of 2022
Manirul Islam
...Petitioner -Versus-
President, Managing Committee, Indurdi Government Primary School and others
.…Opposite parties
Mr. Md. Mizanur Rahman, Advocate
....For the petitioner
Mr. A.S.M.M. Kabir Khan, Advocate
......For the opposite party No. 7
Heard on: 20.11.2024 and 21.11.2024 Judgment on: 28.11.2024
The suit for declaration and mandatory injunction being No. 47 of 2013 was dismissed ex parte on 17.02.2015 (decree signed on 23.02.2015) by the learned Assistant Judge, Baliakandi, Rajbari. Civil Appeal No. 39 of 2015 was also dismissed ex parte on 23.03.2022 (decree signed on 29.03.2022) by the learned Additional District Judge, Rajbari. Thereafter, this Court issued the instant Rule on 17.05.2022.
The plaintiff is the petitioner before us. The opposite party No. 7 Md. Jahangir Alam has entered appearance in the Rule.
1
The relevant prayer portion and the schedule of the plaint run as
follows:
“L) Bl¢Sl Efl¡š² hZÑe¡ja e¡¢mn£ ¢ejÀ ag¢pm h¢ZÑa ¢houhØa¥ ®j¡a¡hL h¡c£ C¾c¤lc£ plL¡l£ fË¡b¢jL ¢hcÉ mul“ cçl£ L¡j
fqËl£” fc Ae¤j¡¢ca f¡Ëb£Ñ NeÉ 1ew ¢hh¡c£ La«ÑL Cp¤ÉL«a 30/05/13
a¡¢lMl fœ ®h-BCe£, AL¡kLÑl Hhw h¡c£l fË¢a h¡dÉLl e¡ b¡L¡ jjÑ ®O¡oZ¡j§mL ¢XH²£ ¢ca j¢SÑ quz
M) ¢h‘ Bc¡ma h¡c£L C¾c¤lc£ plL¡l£ f¡Ëb¢jL ¢hcÉ¡mul
“cçl£ L¡j fËql”£ fc ¢eu¡Nfœ Cp¤É L¢lh¡l SeÉ 1-4 ew j§m ¢hh¡c£NZl fË¢a Bcn¡aÈL ¢eod¡‘¡cn fËc¡e j¢SÑ quz
e¡¢mn£ ag¢nm
f¡Ëb¢jL ¢hcÉ¡mu “cçl£ L¡j fqËl£” fc h¡c£L ¢eu¡N c¡e pwH²¡¿¹
1ew ¢hh¡c£ La«ÑL Cp¤ÉL«a ¢hNa CwlS£ 30/05/2013 a¡¢lMl 05.30.8207.001.11.005.13.542ew pÈ¡lLfœ k¡q¡ à¡l¡ h¡c£l Q¡L¥l£
f¡Ju¡ qCa h¢b·a Ll¡ qCu¡Rz
1-4 ew ¢hh¡c£NZL Bcn¡aÈL ¢eod¡‘¡ fËc¡e” z
The learned Advocate appearing for the plaintiff-petitioner, at the outset, frankly and candidly submits that the prayer ‘Kha’ which relates to issuance of mandatory injunction upon the defendant Nos. 1-4 to issue appointment letter in favour of the plaintiff, is not maintainable in the eye of law. The learned Advocate appearing for the defendant-opposite party No. 7 submits that prayer ‘Ka’ is also not maintainable.
The trial Court dismissed the suit holding that the plaintiff has no legal basis to file the suit and the same is not maintainable. The appellate Court below held that the subject matter of the suit is beyond the jurisdiction of civil Court, the plaintiff has no locus standing and that no cause of action arose to file the suit.
The school in question is a government primary school. The recruitment to the post of Daptari-cum-Guard in the government primary school is governed by the “plL¡¢l fË¡b¢jL ¢hcÉ¡mu cçl£-L¡j-fqËl£ fc BEV ®p¡¢pÑwul j¡dÉj Sehm ¢eu¡Nl e£¢aj¡m¡-2012.” The learned Advocates of both sides submit that the Nitimala, 2012 applies to the case in hand. It appears from Exhibit-8, which is memo dated 30.05.2013 (described in the schedule), that the defendant-opposite party No. 7 was recommended by the Upazilla Nirbahi Officer, Baliakandi, Rajbari for appointment to the post of Daptari-cum-Guard in the school as per clause 7(3) of the Nitimala, 2012. The plaintiff’s case is that earlier the selection and recruitment committee constituted as per clause 5 of the Nitimala made a panel of three candidates on 24.12.2012 in which the plaintiff’s name appeared at serial No. 1 in order of merit. The name of the defendant-opposite party No. 7 did not appear in the said list of panel (Exhibit-7). The plaintiff’s specific case is that the memo dated 30.05.2013 (Exhibit-8) is illegal, void and not binding upon him.
The instant suit was filed on 22.07.2013. The Nitimala, 2012 was amended on 16.06.2013. By the said amendment clause 9(1) has been substituted by a new clause. The substituted clause 9(1) runs as follows:
“¢eu¡Nl ¢hou ®L¡e A¢eujl A¢ik¡N E›¡¢fa qCm A¢a¢lš² ®Sm¡ fnË¡pL (¢nr ¡ J abÉ fÊk¤¢š²) Sl²l£ ¢i¢ša a¡q¡ ac¿¹l hÉhØq¡ NqËZ L¢lhe Hhw ac¿¹ fË¢ahcepq ¢hou¢V ¢eÖf¢šl SeÉ HacpwH²¡¿¹ N¢Wa ®Sm¡ L¢j¢V hl¡hl ®flËZ L¢lhez”
It is clear from the amended clause 9(1) that the plaintiff has a scope under the Nitimala to lodge a complaint before the concerned authority in the matter in question. On receipt of such complaint, if any, the authority concern is bound by law to conduct an enquiry into the complaint. In the case in hand, the plaintiff, without taking recourse to clause 9(1), filed the instant suit which is not maintainable. Moreover, the memo dated 30.05.2013 (Exhibit-8) is premature in that no final decision has yet been taken. Therefore, there is no cause of action to file the suit. Hence, this Court does not find any error of law in the decision passed by the Courts below occasioning failure of justice. Accordingly, the Rule fails.
In the result, the Rule is discharged. Send down the L.C.R.
Mazhar, BO