IN THE SUPREME COURT OF BANGLADESH

 APPELLATE DIVISION

PRESENT:

Mr. Justice Borhanuddin

Mr. Justice M. Enayetur Rahim  

Mr. Justice Md. Ashfaqul Islam           Mr. Justice Md. Abu Zafor Siddique  

Mr. Justice Jahangir Hossain             

CIVIL PETITION FOR LEAVE TO APPEAL NO.519 OF 2023

(From the judgment and order dated 06.11.2022 passed by the High Court Division in Writ Petition No.3351 of 2022)

Rukhsana  Ahmed  Ruxi  and … Petitioners others

=VERSUS=

Bangladesh,  represented  by …… Respondents the Secretary, (Secondary and

Higher  Education),  Ministry

of  Education,  Bangladesh

Secretariat, Ramna, Dhaka and

others

For the Petitioners :Mr. Probir Neogi, Senior

Advocate with Mr. Tanjib- ul-Alam, Senior Advocate and  Mr.  Mohammad  Bakir Uddin  Bhuiyan,  Advocate instructed by Mr. Zainul Abedin,  Advocate-on- Record.

For  the  Respondent :Mr.  Mohammad  Saiful Nos.1-4  Alam, Assistant Attorney

General,  instructed  by Mr.  Haridas  Paul, Advocate-on-Record.

For  the  respondent :Mr.  Motahar  Hossain, Nos.5-6  Senior  Advocate instructed  by  Mr.

Mohammad Ali Azam, Advocate-on-Record

For the respondent :Not represented Nos.7-8

Date of hearing and :The 7th December, 2023   judgment on

J U D G M E N T

Md. Ashfaqul Islam, J:

This Civil Petition for Leave to Appeal is directed against the judgment and order dated 06.11.2022 passed by the High Court Division in Writ Petition No.3351 of 2022 discharging the Rule with observations.

The writ petitioners who are teachers of Lalmatia Mohila College whose salary was degraded after the nationalization of the College filed the writ petition being Writ Petition No.3351 of 2022 before the High Court Division challenging the arbitrary degradation of the present position of the writ petitioner Nos.1, 4, 5, 7, 9, 11, 12, 15, 16, 23 and 26 from the post of Associate Professor to the post of Lecturer and the present position of the writ petitioner Nos.2, 3, 6, 10, 13, 14, 17, 18, 19, 20, 21, 22 and 24 from the post of Assistant Professors to the post of Lecturers and the position of the writ petitioner No.8 from the post of Associate Professor to the post of Demonstrator of Lalmatia Mohila College, now Lalmatia Government Mohila College which is evident from Annexure-M issued under signature of the writ respondent No.6, Principal, Lalmatia Government Mohila College, Lalmatia, Mohammadpur, Dhaka-1207 and thereby reducing the existing monthly salaries of the writ petitioners without any written communication to the writ petitioners as

 The case, made out in the writ petition before the High Court Division, in brief, is as follows:  

The writ petitioner Nos.1-7 and 9-26 obtained Bachelor degree with Honours and Masters Degree from different universities and thus having requisite qualifications got appointment as Lecturer on different dates in different departments of the Lalmatia Mohila College, Lalmatia, Dhaka (the College). The writ petitioner No.8 also got an appointment letter as Demonstrator (Physics) on 16.07.2021 in the said College. Accordingly, joining the said College, the writ petitioners have been discharging their respective duties. The writ petitioner Nos.1, 4, 5, 7, 9, 11, 12, 15, 16, 23 and 26 subsequently got promotion on different dates to the post of Assistant Professor and then to the post of Associate Professor. The writ petitioner Nos.2, 3, 6, 10, 13, 14, 17, 18, 19, 20, 21, 22 and 24 on also got promotion to the post of Assistant Professor on different dates and the writ petitioner No.8 (initially Demonstrator) got promotion to the post of Lecturer and then to the post of Assistant Professor.

Lalmatia Mohila College was affiliated under the National University established under the National University Act, 1992 and recognized by the Directorate of Secondary & Higher Education, Dhaka and the services of the writ petitioners were regulated under the Non- Government Degree College Teachers Service Regulations, 1994 (in short, the Regulations, 1994). All the writ petitioners are the regular and permanent teachers of the Lalmatia Mohila College and the Governing Body of the College took decision on 23-12-2016 to pay salary as per National Pay Scale, 2015 and the writ petitioners were receiving their salary as per National Pay Scale, 2015.

In the year 2019, the nationalization process of Lalmatia Mohila College was started under the “plL¡l£ L­mS ¢nrL J LjÑQ¡l£ Bš£Lle ¢h¢dj¡m¡, 2018” (in short, the Absorption Rules, 2018) which was framed repealing the earlier Rules, namely, “S¡a£uLleL«a L mS ¢nrL J A-¢nrL LjÑQ¡l£ Bš£Lle ¢h¢dj¡m¡, 2000” (in short, the Absorption Rules, 2000).

The College has been nationalized by the Ministry of Education following the Notification contained in Memo No.37.00.0000 .370.39.001.18.03 dated 04.01.2022 with effect from 31.12.2021, but the service of teachers and employees of the College is under process for absorption.

In the circumstances, as per office order issued by the Ministry of Education dated 27.08.2018, the financial transaction including all other matters of the College are being done with the joint signatures of the Deputy Commissioner, Dhaka and the Principal till completion of the process of absorption of service of the teachers and employees.

Although the writ petitioners have been drawing their salaries according to their designated posts and entitlement, but the writ respondents without following the existing provisions of law proposed and compelled all the teachers (Assistant Professor and Associate Professor) to receive salary in the post of Lecturer and to the writ petitioner No.8 in the post of Demonstrator from the month of January, 2022. In this backdrop, the writ petitioners finding no other alternative efficacious remedies moved the abovementioned writ petition before the High Court Division and obtained the Rule.

The writ-respondent No.3, the Director General, Directorate of Secondary and Higher Secondary Education and the writ respondent No.6, Principal, Lalmatia Government Mohila College, Lalmatia, Mohammadpur, Dhaka contested the Rule by filing separate affidavit-in- oppositions.  

A Division Bench of the High Court Division upon hearing the parties discharged the Rule by the impugned judgment and order dated 06.11.2022.  The High Court Division observed that, the writ petitioners are eligible for absorption only to the post of Lecturer and Demonstrator (writ petitioner No.8) and after absorption, since there is scope for promotion in accordance with Rule 12 of the Rules, 2018 in the vacant post of absorbed teachers, the writ respondents shall consider the writ petitioners’ promotion in those promoted posts subject to vacancy.  

Being aggrieved, by the impugned judgment and order of the High Court Division, the writ petitioners as petitioner Nos.1-20 herein filed the instant civil Petition for leave to appeal before this Division.  

Mr. Probir Neogi, the learned Senior Advocate appearing on behalf of the petitioners submits that, from the list of writ petitioners (11 Associate Professors, 14 Assistants Professors and 1 Lecturer) along with their particulars embodied in the impugned judgment and order it is evident that, the writ petitioner Nos.1-2, 4-12,15-17,20-24 and 26 were appointed in between 1995 to 2004 and the writ petitioner Nos.3,13-14, and 18-19 were appointed in the service in the year 2008 and the writ petitioner No.25 was appointed in the year 2011 and the High Court Division relying on the circular dated 17.04.2015 (actual date

would be 17.04.2005) issued on the basis of the service Regulations, 1994, discharged the Rule although the aforesaid circular dated 17.04.2005 was abolished by issuance of new service regulation namely, “S¡a£u ¢hnÄ¢hcÉ¡m®ul A¢di¥š² ®hplL¡l£ L­mS ¢nrL­cl Q¡L¥l£l naÑ¡hm£ ®l…­mne, 2015”(in short, the Service Regulations, 2015) wherein no such requirement of approval from syndicate for appointment/promotion of Assistant Professor, Associate Professor and Professor in National University affiliated degree college is stipulated and thus the High Court Division committed serious illegality in discharging the rule relying on an abolished circular and, as such, the impugned judgment and order of the High Court Division is liable to be set aside.

He further submits that, the writ petitioner No.1 got promotion as Assistant Professor on 13.11.2002, the writ petitioner No.5 got promotion as Assistant Professor on 14.11.2002, the writ petitioner No.7 got promotion as Assistant Professor on 06.10.2003, the writ petitioner No.9 got promotion as Assistant Professor on 14.11.2002, the writ petitioner No.23 got promotion as Assistant Professor on 14.01.2002 and the writ petitioner No.26 got promotion as Assistant Professor on 06.10.2003 and admittedly the circular in question was issued on 17.04.2005 and it is not the contention of any of the contesting writ respondents that the promotion of the writ petitioners are defective due to the clause No.(vii) and (ix) of the circular dated 17.04.2005, but upon making third case, the High Court Division relying on the abolished circular dated 17.04.2005, discharged the Rule by the impugned judgment and order in wholesale manner and thus committed gross illegality and therefore, the impugned judgment and order of the High Court Division is liable to be set aside.

He also submits that, from the list of writ petitioners along with their particulars embodied in the impugned judgment and order it further appears that, the writ petitioner No.2 got promotion as an Assistant Professor on 25.04.2016, the writ petitioner No.3 got promotion as an Assistant Professor on 09.04.2016, the writ petitioner No.13 got promotion as an Assistant Professor on

07.04.2016, the writ petitioner No.14 got promotion as an Assistant Professor on 25.04.2016, the writ petitioner No.18 got promotion as an Assistant Professor on 09.04.2016, the writ petitioner No.19 got promotion as an Assistant Professor on 09.04.2016, the writ petitioner No.21 got promotion as an Assistant Professor on 25.04.2016 and the writ petitioner No.22 got promotion as an Assistant Professor on 25.04.2016 following the provisions of existing law i.e. the said Service Regulations, 2015 which came into force on 13.06.2015 in place of earlier Service Regulations, 1994 and consequently, the circular under reference No.01(162) S¡a£x¢hx/fËn¡x 92/(77)/1 dated 17.04.2005 was also abolished and the High Court Division relying on the aforesaid abolished circular has taken away the vested right of the aforesaid writ petitioners by passing the impugned judgment and order dated 06.11.2022 and thus committed serious illegality.

Next he further submits that, approval for nationalization of Lalmatia Mohila College and embargo on appointment and on promotion came on 26.02.2019 and all the writ petitioners were appointed and got promotion in their respective posts in the aforesaid college before the date of embargo and subsequently the college was nationalized vide memo dated 04.01.2022 with effect from 30.12.2021 and one Mr. Md. Enayetullah without having any requisite qualification got an appointment letter as an Assistant Professor in the aforesaid college on the date of putting embargo that is on 26.02.2019 and he is receiving higher salary holding the post of Assistant Professor and thus the writ respondents have shown utter discriminatory treatments towards the writ petitioners and the High Court Division allowed the aforesaid discrimination in passing the impugned judgment and order and the same is liable to be set aside.  

Finally, he submits that, the writ petitioners are the regular teachers of Lalmatia Mohila College, now Lalmatia Government Mohila College and the petitioners were appointed and promoted in their respective posts following the prevailing Rules and Regulations and they have no disqualifications and they are to be absorbed in the Lalmatia

Government Mohila College as per provision of

Rule 4 read with Rules 5 and 6 of the “plL¡¢lL«a

L­mS ¢nrL J LjÑQ¡l£ Bš£LlZ ¢h¢dj¡m¡, 2018”, but the High

Court Division fell into error in interpreting

the provision of the “plL¡¢lL«a L­mS ¢nrL J LjÑQ¡l£ Bš£LlZ ¢h¢dj¡m¡, 2018” in passing the impugned judgment and

order dated 06.11.2022 and thus committed illegality. 

On the other hand, Mr. Mohammad Saiful

Alam, the learned Assistant Attorney General appearing on behalf of the respondent Nos.1-4

made submissions in support of the impugned judgment and order of the High Court Division.        

Mr. Motahar Hossain, the learned Senior Advocate appearing on behalf of the respondent Nos.5-6 submits that, earlier the writ petitioners executed undertaking not to claim Government fund by way of their promotion. Moreover, out of 118 teachers except the few writ petitioners, all other teachers have been receiving the salary in the post of Lecturer and even the writ petitioner Nos.9 and 23 being MPO enlisted in the post of Lecturer, are receiving salary under the MPO scheme. Hence, the High Court Division rightly discharged the Rule and passed the impugned judgment and order and therefore, he prays for dismissal the instant leave petition.   

We have heard the learned senior Advocates of both sides as well as the learned Assistant Attorney General. Perused the impugned judgment of the High Court Division and other papers on record.

The High Court Division at the outset initiated the question of maintainability of the writ petition and upon plausible reasons decided that, the writ petition is maintainable. But, the writ petitioners’ claim of absorption in the nationalized college has not been accepted by the High Court Division. Accordingly, the High Court Division found that, the writ respondent Nos.4, Deputy Commissioner, Dhaka and 6, Principal, Lalmatia Government Mohila College, Lalmatia, Mohammadpur, Dhaka-1207 rightly took steps to pay the salary to the writ petitioners at the scale of lecturer from the date of nationalization in accordance with Rule 4 of the Absorption Rules, 2018. The High Court Division also held that, the two posts (Professor and Associate professor) have to be incorporated in Rules 2(9) and 5 of the absorption Rules, 2018. The writ petitioners

are eligible only for absorption to the post of Lecturer and Demonstrator (petitioner No.8) and

after absorption there is scope for promotion

in accordance with the rule 12 of the Rules,

2018. For the sake of better understanding let

us reproduce the said Rules verbatim below:

2(9)z “plL¡¢lL«a L m Sl ¢nrL J LjÑQ¡l£” AbÑ ®L¡ e¡ plL¡¢lL«a L m S AdÉr, Ef¡dÉr, pqL¡l£ AdÉ¡fL h¡ fËi¡oL f c

LjÑla Hje ®L¡ e¡ ¢nrL h¡ ®L¡ e¡ f c LjÑla Hje ®L¡ e¡ LjÑQ¡l£, ¢k¢e j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ¢ehÑ¡¢Qa ®hplL¡¢l L m S ¢e­u¡­Nl Efl ¢e­od¡‘¡ B l¡f L¢lh¡l a¡¢l Ml f§ hÑ, ®hplL¡¢l

L­m­Sl SeÉ fË­k¡SÉ ¢e­u¡N pwœ²¡¿¹ B­cn, ¢e­cÑn h¡ e£¢aj¡m¡l Ad£e, ¢e­u¡NfË¡ç qCu¡ AhÉ¡qai¡­h X~š² L­m­S LjÑla B­Re;

4z fc ÙÛ¡e¡¿¹l - j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ®L¡ e¡ ¢ehÑ¡¢Qa ®hplL¡¢l L­m­S ¢e­u¡­Nl Efl ¢e­od¡‘¡ B l¡f L¢lh¡l a¡¢lM

fkÑ¿¹, ®hplL¡¢l L­m­Sl SeÉ fË­k¡SÉ ¢e­u¡N pwœ²¡¿¹ B­cn, ¢e­cÑn h¡ e£¢aj¡m¡ Ae¤k¡u£, pw¢nÔø L m Sl ¢e u¡NfË¡ç ¢nrL J LjÑQ¡l£N­Zl ¢hcÉj¡e fcpj§q, plL¡¢lLl­Zl a¡¢lM qC­a Eš² plL¡¢lL«a L m Sl fc ¢qp¡ h ÙÛ¡e¡¿¹¢la qC hz

5z AÙÛ¡u£i¡ h ¢e u¡Nz- (1) ¢e u¡NL¡l£ LaѪfr, j¡dÉ¢jL J EµQ ¢nr¡ A¢dcçl LaѪL ®L¡ e¡ ¢ehÑ¡¢Qa ®hplL¡¢l L m S ¢e u¡ Nl Efl ¢e­od¡‘¡ B­l¡­fl a¡¢l­M pw¢nÔø L­m­Sl -

(L) AdÉr, Ef¡dÉr, pqL¡l£ AdÉ¡fL J fËi¡oL f c LjÑla fË­u¡Se£u ®k¡NÉa¡pÇfæ ¢nrLNZ­L, kb¡œ²­j, AdÉr (ee-LÉ¡X¡l), Ef¡dÉr (ee-LÉ¡X¡l), pqL¡l£

AdÉ¡fL (ee-LÉ¡X¡l) J fËi¡oL (ee-LÉ¡X¡l) ¢qp¡ h,

Hhw

(M) LjÑQ¡l£NZ L ü-ü f c, -

Eš² L­mS plL¡¢lLl­Zl a¡¢lM qC­a, ¢h¢d 6

Hl ¢hd¡e p¡­f­r, Bš£Ll­Zl E­Ÿ­nÉ AÙÛ¡u£i¡­h

¢e u¡N fËc¡e L¢l hz

(2) plL¡¢lL«a L m Sl ¢nrL J LjÑQ¡l£NZ L ÙÛ¡e¡¿¹¢la fc hÉa£a AeÉ ®L¡ e¡ f c AÙÛ¡u£i¡ h ¢e u¡N fËc¡e Ll¡ k¡C h e¡z

hÉ¡MÉz - HC ¢h¢d a E¢õ¢Ma “fË u¡Se£u ®k¡NÉa¡” h¢m a ®hplL¡¢l L m Sl ¢nrL f c ¢e u¡N m¡ il SeÉ fË u¡Se£u ®k¡NÉa¡ L h¤T¡C hz

12z f c¡æ¢az- plL¡¢lL«a L m Sl ¢nrL J LjÑQ¡l£N Zl

f c¡æ¢a k¡NÉ ÙÛ¡e¡¿¹¢la fcpj§­q pw¢nÔø L­m­S LjÑla Bš£Lªa ¢nrL

J LjÑQ¡l£NZ f­c¡æ¢al SeÉ ¢h­h¢Qa qC­he Hhw Eš² ®r­œ pw¢nÔø L­m­Sl plL¡¢lLl­Zl AhÉh¢qa f§­hÑl, ®rœja, ¢hou h¡ fc¢i¢šL ®SÉùa¡l ¢i¢š­a, plL¡l LaѪL ¢edÑ¡¢la naÑ f§lZ p¡­f­r, f­c¡æ¢a fËc¡e Ll¡ k¡C hz

The High Court Division relying on the circular dated 17.04.2005 issued on the basis of the Service Regulations, 1994 discharged the Rule. But, unfortunately we have found that, the circular on which the High Court Division relied was abolished by that time with the introduction of the new service regulations wherein no such requirement of approval from syndicate for appointment/promotion of the Assistant Professor, Associate Professor and Professor in the National University affiliated degree College has been stipulated.        

Mr. Probir Neogi, the learned Senior Counsel rightly contended that, it is not the contention of the writ respondents that, the promotion of the writ petitioners are defective due to the clause Nos. (vii) and (ix) of the Circular dated 17.04.2005, but, upon making third case, the High Court Division relying on that abolished circular discharged the Rule which is not tenable in the eye of law. This submission stands with all force. He further went on saying that, the respondents have shown utter discriminatory treatments towards the writ petitioners and the High Court Division affixed permanent seal in the said deed done deliberately in passing the impugned judgment and order and thus committed illegality.

Palpably, the High Court Division ignored the important aspects of the prolonged services rendered by the petitioners and the arbitrary degradation of their post and salary expressly flouting fundamental rights of the writ petitioners as guaranteed under Articles 27, 29, 31 and 40 of the Constitution.

The writ petitioners are the regular teachers of the Lalmatia Mohila College, now Lalmatia Government Moahila College and they were appointed and promoted in their respective posts in accordance with the prevailing Rules and Regulations and they have no disqualifications to be absorbed in the Lalmatia Government Mohila College as per provisions of Rule 4 read with rule 5 and 6 of the Rules, 2018 as discussed above, but the High Court Division fell into error in interpreting the provisions of the same Rules and came into a wrong decision in passing the judgment and order impugned against.

The submissions of the respondents as aforesaid merit no substance being fallacious and bereft of any consideration whatsoever.    

With all the vehemence and authority we are declaring that, the petitioners herein shall have to be treated in accordance with the new law as in the manner all of their colleagues have been treated without any discrimination.  

The petitioner Nos.8, 9, 17, 18 and 20 submitted relevant documents by an application for acceptance of additional paper book dated 23-11-2023 and they have no disqualification to be absorbed in the post of Assistant Professors in Lalmatia Government Mohila College, Dhaka.

Accordingly, this petition is disposed of. The impugned judgment and order of the High Court Division is set aside. The respondents are directed to conclude the nationalization process of services of the petitioners as a Teachers of Lalmatia Government Mohila College, Lalmatia, Mohammadpur, Dhaka in accordance with law in the manner as it has already been done in case of their colleagues within 3(three) months.

J. J. J. J. J.

The 7th December, 2023_ Hamid/B.R/*Words 2,998*