IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 5190 OF 2023

with

WRIT PETITION NO. 6697 OF 2022

with

WRIT PETITION NO. 1626 OF 2023

with

WRIT PETITION NO. 305 OF 2023

IN THE MATTER OF:

An application under Article 102(1) and (2) read with Article 44 of the Constitution of the People’s Republic of Bangladesh

AND

IN THE MATER OF:

Sujit Sarker and others

… Petitioners

(In writ petition No. 5190 of 2023)

Biswajit Maitra

… Petitioner

(In writ petition No. 6697 of 2022)

Rashidul Islam and others

… Petitioners

(In writ petition No. 1626 of 2023) Md. Mahabub Sheikh and others

… Petitioners

(In writ petition No. 305 of 2023

-VERSUS-

The  Government  of  the  People`s  Republic  of Bangladesh,  represented  by  the  Secretary, Ministry  of  Primary  and  Mass  Education, Bangladesh Secretariat, Ramna, Dhaka and others

… Respondents

(In all the writ petitions) Mr. Md. Siddique Ullah Miah, Advocate

… for the Petitioners

(In all the writ petitions) Mr. Muntasir Uddin Ahmed, Advocate

… for the Respondent No. 2

Mr. Ajit Sil, Advocate

… for the Respondent No. 3

(In writ petition No. 6697 of 2022)

Heard on: 11.12.2023 Judgment on: 14.01.2024

Present:

Ms. Justice Naima Haider

&

Ms. Justice Kazi Zinat Hoque

Naima Haider, J;

The dispute in the instant writ petition in broad terms relates to service matter and the arguments advanced by the respective parties necessitates addressing certain important questions of law.

In  Writ  Petitions  No.5190  of  2023,  a  Rule  was  issued  in  the following terms:

Let a Rule Nisi was issued calling upon the respondents to show

cause as to why the inaction and failure of the respondents to consider

the appointment of the petitioners in the post of Assistant Teacher of the Government Primary Schools upon complying with "10% Physically Challenged Quota" as per Rule 8 of the "সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯" and Circular vide Memo No.সম (িবিধ-১)- এস-৮/৯৫(অংশ-২) ৫৬(৫০০) dated 17.03. 1997 published by the Ministry of Public Administration (Annexure-L-1), who have successfully passed in the written examination (Annexure-E) and participated in the viva voce examination under the recruitment circular bearing Memo No.৩৮.০১.০০০০.১৪3.১১.008.20-১৫২ dated 18.11.2020 (Annexure-C) should

not be declared to have been passed without lawful authority and is of no

legal effect and also, as to why the respondents concerned should not be directed to appoint the petitioners who have passed successfully in the written examination (Annexure-E) under the recruitment circular bearing Memo No.৩৮.০১.০০০০.১৪৩ ১১.০০৮. ২০- ১৫২ dated 18.11.2020 (Annexure-C),

in the posts of Assistant Teacher of Government Primary School upon complying -10% Physically Challenged Quota" as per Rule 8 of the "সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯" and Circular vide Memo No.সম (িবিধ-১)-এস-৮/৯৫(অংশ-২) ৫৬(৫০০) dated 17.03.1997 published by the Ministry of Public Administration (Annexure-L-1)and/or pass such other

or further order or orders as to this Court may seem fit and proper.

In  Writ  Petitions  No.6697  of  2022,  a  Rule  was  issued  in  the following terms:

Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Final result vide Memo Nos. 38.01.0000.143.11.011.18.291 dated 24.12.2019 (Annexure-H) published by the Respondent No. 3 violating the Rule 7 of the সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা ২০১৩ as well as condition No.8, 13 (chha)

and  15  of  the  appointment  advertisement  vide  Memorandum  No. ৩৮.০১.০০০০.১৪৩. ১১.০১১.১৮-২৩০ dated 30.07.2018 (Annexure-D) should not

be declared to have been done without lawful authority and is of no legal effect and also as to why the respondents should not be directed to appoint the petitioner as Assistant Teacher of Government Primary School in the Physically Challenged Quota as per of the সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা ২০১৩ as well as condition No.8, 13 (chha) and 15

of the appointment advertisement  vide Memorandum  No. ৩৮.০১.০০০০.

১৪৩.১১.০১১.১৮-২৩০ dated 30.07.2018 (Annexure-D) who has successfully passed in the written examination (Annexure-F) and/or pass such other

or further order or orders as to this Court may seem fit and proper.

In  Writ  Petitions  No.1626  of  2023,  a  Rule  was  issued  in  the following terms:

Let a Rule Nisi be issued calling upon the respondents to show cause as to why the inaction and failure of the respondents to consider the appointment of the petitioners in the post of Assistant Teacher of the Government Primary Schools in complying with the "10% Physically Challenged Quota" as per provision of Rule 8 of the সরকারী  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯ read with Memo No.সম (িবিধ-১)-এস-৮/৯৫ (অংশ- ২)৫০০ তািরখঃ১৭-০৩-১৯৯৭ of Ministry of Public Administration (Annexure-L-1), who have successfully passed in the written examination (Annexure-E) and participated the viva voce examination under the recruitment circular vide Memo No.38.01.0000.143.11.008.20-152 dated 18.11.2020 (Annexure-C) should not be declared illegal, without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper and/or pass such other or further order or orders as to this Court may seem fit and proper.

In  Writ  Petitions  No.305  of  2023,  a  Rule  was  issued  in  the following terms:

Let a Rule Nisi be issued calling upon the respondents to show cause as to why the inaction and failure of the respondents to consider the appointment of the petitioners in the post of Assistant Teacher of the Government Primary Schools in complying with the "10% Physically Challenged Quota" as per provision of Rule 8 of the সরকারী  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯ who have successfully passed in the written examination (Annexure-E) and participated the viva voce examination under the recruitment circular vide Memo No.38.01.0000.143.11.008.20- 152 dated 18.11.2020 (Annexure-C) should not be declared illegal, without lawful authority and is of no legal effect and as to why a direction should not be issued upon the respondents to appoint the petitioners who have passed successfully in the written examination (Annexure-E) under the recruitment circular vide Memo No.38.01.0000.143.11.008.20-152 dated 18.11.2020 (Annexure-C) in the post of Assistant Teacher of the Government Primary Schools in complying with the "10% Physically Challenged Quota" as per provision

of Rule 8 of the সরকারী  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯ and/or pass such other or further order or orders as to this Court may seem fit and proper.

The petitioners’ case, as set out in the Writ Petitions, in brief, are

as follows:

The  petitioners  are  citizens  of  Bangladesh.  The  respondents invited applicants to apply for the post of Assistant Teacher and the petitioners, having requisite qualifications, applied. Admit cards were issued in their favour. The petitioners attended the written examination and  they  all  passed  in  the  written  examination  and  thereafter  they attended the viva voce.

The  petitioners  are  the  physically  challenged  persons  and  the Department of Social Service, Ministry of Social Welfare, Government of the Public Republic of Bangladesh issued ID cards for the person with disabilities.

The Ministry of Primary and Mass Education has enacted Rule namely “plL¡l£ fСb¢jL ¢hcÉ¡mu ¢nrL ¢e­u¡N ¢h¢dj¡m¡-201” 9 and the same was published  under  circular  vide  memo  No.  S.RO.  dated  01.04.2019 keeping a provision in the Rule No.8 that 60% female quota and  20% dependent candidates and the said provisions has not been amended by the Government Primary School teacher appointment Rules, 2019.

The  respondent  invited  applications  for  the  post  of  Assistant Teacher  in  the  Government  Primary  School  for  the  entire  country (Exception  Rangamati,  Khagrachori,  Bandorban)  vide  separate  Govt. Circular. In  the  circular,  applications  were  invited  for  appointment against  all  the  vacant  post.  Terms  and  conditions  settling  the qualification of the applicants were stated in the advertisement among those the terms no.15 states that according to the rules set out in the “Government Primary School Teacher Appointment Rule 2013” under the  Directorate  of  Primary  Education,  the  recruitment  will  be  made according to merit and quota. Accordingly, the selected candidate will be appointed  to  the  Upazila/Police  Station  but  such  Rule  has  not  been inserted in the present recruitment circular for reason unknown.

The final result has been published but without considering the petitioners to be appointed as Assistant Teacher in complying the 10% physically challenged quota as per provision of Rule 8 of the “plL¡l£ f¡Ðb¢jL ¢hcÉ¡mu ¢nr L ¢e­u¡N ¢h¢dj¡m¡-2019” who have successfully passed in the written examination.

As per the Recruitment Rule-2013 and all the previous recruitment circulars  the  provision  of  reserving  10%  quota  for  the  physically challenged persons has been implemented and accordingly, physically challenged  persons  had  enjoyed  the  10%  quota  facilities  even  after curtailing  quota  system,  but  the  respondents  without  following  the earlier appointment process which is prevailing till now published the final result refusing 10% physically challenged quota.

A Circular dated 16.01.2020 issued by the Director General (Additional  Duties)  of  Department   of  Primary  Education an interpretation  was  given   regarding  the  60%  women  quota,  20% dependent quota and 20% male quota with an illustration that all the women, dependent and male quota include 10% physically challenged quota. Since the terms of Rule- 7(2) of ¢e­u¡N ¢h¢dj¡m¡-2013 is equal to the terms of Rules 8(2)(ga) of the Rule.  In  the  written  examination  have passed  1,51,885  and  Viva  Voce  examination  37,000  candidates   in different districts throughout the country who are appointed in the post of Assistant Teacher of Government Primary School. The petitioners are entitled to be appointed in the aforesaid post under the 10% physically challenged quota but they have not been appointed in the said post.

Finding no other alternative efficacious remedy, the petitioners have moved this Court and obtained the instant Rules Nisi.

No  affidavit  in  opposition  has  been  filed  by  the  Respondents (except  writ  petition  no.6697  of  2022),  controverting  the  statements made in the writ petition. However, in writ petition no.6697 of 2022, the learned  Advocate  Mr.  Muntasir  Uddin  Ahmed  on  behalf  of  the respondent no.2 and Mr. Ajit Sil, the learned Advocate on behalf of the respondent no.3 filed separate power but did not file any affidavit in oppositions.

Mr.  Md.  Siddique  Ullah  Miah,  learned  advocate  appearing  on behalf of the petitioners submits that the respondents did not follow the guideline of recruitment advertisement and the appointment was done on the basis of pick and choice policy. He next submits that the petitioners successfully  passed  in  written  examination  and  faced  the  viva  voce examinations and they had legitimate expectation that they would be selected for their respective post in the physically challenged quota. He further submits that the respondents in the appointment process due to illegality, arbitrariness and ‘pick and choose policy’ the petitioners has been dropped out and they have no possibility of getting any government job. He lastly submits that on similar  footing a writ petition being

No.5060 of 2014 was filed before the Hon’ble High Court Division claiming 10% physically challenged quota and the Hon’ble Court  on 16.11.2017 disposed  of     the Rule  with  a   direction upon the respondents to appoint the petitioners in the post of Family Planning Inspector ( Male), reserved post under the disability quota within 30 days from the date of receipt of the judgment.

We have heard the learned Advocate for petitioners also perused the pleadings, the documents annexed and the supplementary affidavit filed by the petitioners.

It  appears  from  the  record  that  the  petitioners  are  citizens  of Bangladesh. The respondents invited applicants to apply for the post of Assistant Teacher and the petitioners, having requisite qualifications, applied.  Admit  cards  were  issued  in  their  favour.  The  petitioners attended  the  written  examination  and  they  all  passed  in  the  written examination and thereafter they attended the viva voce.

The  petitioners  are  the  physically  challenged  persons  and  the Department of Social Service, Ministry of Social Welfare; Government of the Public Republic of Bangladesh issued ID cards for the person with disabilities.  The Ministry of Primary and Mass Education has enacted Rule namely “plL¡l£ fСb¢jL ¢hcÉ¡mu ¢nrL ¢e­u¡N ¢h¢dj¡m¡-201” 9 and the same was published under circular vide memo No. S.RO. dated 01.04.2019 keeping a provision in the Rule No.8 that 60% female quota and  20%

dependent candidates and the said provisions has not been amended by

the Government Primary School teacher appointment Rules, 2019.

          It  was  brought  to  the  notice  of  this  Court  that  as  per  the

Recruitment  Rule-  2013  and  all  previous  recruitment  circulars  the

provision of reserving 10% quota for the physically challenged persons

has been implemented and accordingly, physically challenged persons

had enjoyed the 10% quota facilities even after curtailing quota system

by the respondents. But, the respondents without following the earlier

appointment process which is prevailing till now published the final

result refusing 10% physically challenged quota.

         An interpretation was given by the Director General (Additional

Duties)  of  Department  of  Primary  Education  by  a  Circular  dated

16.01.2020 regarding the 60% women quota, 20% dependent quota and

20% male quota with an illustration that all the women, dependent and

male quota include 10% physically challenged quota. Since the terms of

Rule 7(2) of িনেয়াগ িবিধমালা ২০১৩ is equal to the terms of Rule 8(2)(ga),

such interpretation is equally applicable to the present িনেয়াগ িবিধমালা২০১৯. উধাহরণ   প ধরা যাক এক  উপেজলায়  মাট     পেদর সং  া ১০০ যা মিহলা,  পা  ও    ষ

াথ েদর জ  িন   পভােব িবেশষ    ণীর  কাটায় ও সাধারণ  মধায় িবভািজত।

We note that the relevant Regulation of the 2013 Regulations, calling for interpretation is Regulation 7. Regulation 7 is set out below for ease of reference: 

Policy decisions are for the Government to take. Policy decisions primarily  follow  from  the  Government’s  election  mandate.  Policy decisions are therefore within the exclusive realm of the executives. The High Court Division is not equipped to deal with policy matters since the Courts  do  not  have  expertise  and  are  not  equipped  to  deal  with competing claims and conflicting interests in complex social, economic and  commercial  matters;  more  importantly  policy  decisions  are  not concerns of the High Court Division. As such, when any dispute relates to policy decision, the High Court Division is slow to intervene; it is never the case that the High Court Division shall cease to interfere when plea of policy is raised.

When “policy” is pleaded, the High Court Division is required to assess whether the issue is infect a policy matter or executive decision. If the  decision  in  question  is  a  policy  decision,  then  the  High  Court Division can proceed to decide whether in the taking the policy decision or  in  its  implementation,  there  will  be  any  violation  of  law  or fundamental rights. If the answer is in the affirmative, this Division is constitutionally mandated to intervene. In this regard, we refer to the views expressed in the celebrated case of Narmada Bachao Andolon V Union of India [(2000) 10 SCC 664] where the Supreme Court held:

“... Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are  part  of  the  policy-making  process  and  the  courts  are  ill equipped to adjudicate on a policy decision so undertaken. The courts, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not  transgressed  upon  except  to  the  extent  permissible  by  the Constitution...”

The relevant part of the order of the Circular dated 17.03.1997 contains a chart which is reproduced below for ease of reference:

In the present context, this chart was followed to determine the eligibility.         To  ensure the right and  protection  of  the physically challenged persons  in  our  country  the  Government  of  Bangladesh  enacted  law known as, ' িতব ী  ি র অিধকা ও র া আইন, ২০১৩' in conformity with the United  Nations  Convention  on  the  Rights  of  the  Persons  with Disabilities. Section 35 (1) of the said Act runs as follows: "৩৫। (১) আপাতত বলবৎ অ    কান আইেন যাহা িক ই থা ক না  কন,  যা  তা থাক সে ও,  িতবি তার ধরন অ যায়ী, উপেযাগী  কান কেম  িন    হইেত  কান  িতব ী  ি েক বি ত বা তাহার  িত

বষ   করা বা তাহােক বাধা     করা  যাইেব না।".  But, the respondents  without considering the section 35(1) of the said Act published the final result.

        It  is  not  a  big  deal  to  reserve  10%  quota  for  the  physically challenged persons in the face of 37,000 posts for the post of assistant teachers in the government primary school. They are not claiming such reservation in spite of their educational disqualification, rather, they are claiming such reservation in a situation when they are qualified in the written examination and  faced  the viva voce along  with the general candidates. A simple extension of hand from the part of the state can make them assets, rather than of being burden of the society.

As no affidavits in oppositions have been filed controverting the statements made in the writ petitions, the assertions so made are deemed

to be correct.

Considering the above facts and circumstances and on perusal of

the materials on records, we are inclined to hold that the Rules have got merit and the same are bound to succeed.

In the result, the Rules are made absolute.

In Writ Petitions No.5190 of 2023, the inaction and failure of the respondents to consider the appointment of the petitioners in the post of Assistant Teacher of the Government Primary Schools upon complying

with "10% Physically Challenged Quota" as per Rule 8 of the "সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯" and Circular vide Memo No.সম (িবিধ- ১)- এস-৮/৯৫(অংশ-২) ৫৬(৫০০) dated 17.03.1997 published by the Ministry of

Public Administration (Annexure-L-1), who have successfully passed in

the written examination (Annexure-E) and participated in the viva voce examination  under  the  recruitment  circular  bearing  Memo No.৩৮.০১.০০০০.১৪3.১১.008.20-১৫২  dated  18.11.2020  (Annexure-C)  are declared to have been passed without lawful authority and is of no legal effect.

The respondents concerned are directed to appoint the petitioners

who have passed successfully in the written examination (Annexure-E)

under the recruitment circular bearing Memo No.৩৮.০১.০০০০.১৪৩ ১১.০০৮.

২০- ১৫২ dated 18.11.2020 (Annexure-C), in the posts of Assistant Teacher

of Government Primary School upon complying -10% Physically Challenged Quota" as per Rule 8 of the "সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯" and Circular vide Memo No.সম (িবিধ-১)-এস-৮/৯৫(অংশ-২) ৫৬(৫০০) dated 17.03.1997 published by the Ministry of Public Administration (Annexure-L-1).

In Writ Petitions No.6697 of 2022, the Final result vide Memo

Nos. 38.01.0000.143.11.011.18.291 dated 24.12.2019 (Annexure-H) published by the Respondent No. 3 violating the Rule 7 of the সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা ২০১৩ as well as condition No.8, 13 (chha)

and  15  of  the  appointment  advertisement  vide  Memorandum  No. ৩৮.০১.০০০০.১৪৩. ১১.০১১.১৮-২৩০ dated 30.07.2018 (Annexure-D) is declared

to have been done without lawful authority and is of no legal effect.

The respondents are directed to appoint the petitioner as Assistant Teacher of Government Primary School in the Physically Challenged Quota as per of the সরকাির  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা ২০১৩ as well as condition No.8, 13 (chha) and 15 of the appointment advertisement vide Memorandum  No.  ৩৮.০১.০০০০.  ১৪৩.১১.০১১.১৮-২৩০  dated  30.07.2018 (Annexure-D) who has successfully passed in the written examination (Annexure-F).

In Writ Petitions No.1626 of 2023, the inaction and failure of the respondents to consider the appointment of the petitioners in the post of Assistant Teacher of the Government Primary Schools in complying with the "10% Physically Challenged Quota" as per provision of Rule 8 of the সরকারী  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯ read with Memo No.সম (িবিধ-১)-এস-৮/৯৫ (অংশ- ২)৫০০ তািরখঃ১৭-০৩-১৯৯৭ of Ministry of Public Administration (Annexure-L-1), who have successfully passed in the written examination (Annexure-E) and participated the viva voce examination under the recruitment circular vide Memo No.38.01.0000.143.11.008.20-152 dated 18.11.2020 (Annexure-C) is declared illegal, without lawful authority and is of no legal effect.

In Writ Petitions No.305 of 2023, the inaction and failure of the respondents to consider the appointment of the petitioners in the post of Assistant Teacher of the Government Primary Schools in complying with the "10% Physically Challenged Quota" as per provision of Rule 8 of the সরকারী  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯ who have successfully passed in the written examination (Annexure-E) and participated the viva  voce  examination  under  the  recruitment  circular  vide  Memo No.38.01.0000.143.11.008.20-  152  dated  18.11.2020  (Annexure-C)  is declared illegal, without lawful authority and is of no legal effect.

The respondents are directed to appoint the petitioners who have passed successfully in the written examination (Annexure-E) under the recruitment circular vide Memo No.38.01.0000.143.11.008.20-152 dated 18.11.2020 (Annexure-C) in the post of Assistant Teacher of the Government Primary Schools in complying with the "10% Physically Challenged Quota" as per provision of Rule 8 of the সরকারী  াথিমক িবদ ালয় িশ ক িনেয়াগ িবিধমালা, ২০১৯.

All directions passed in respective writ petitions will be complied within  90(ninety)  days  from  the  date  of  receipt  of  a  copy  of  this judgment and order.

No order as to costs.

   Communicate  the  Judgment  and  Order  at  once  for  immediate compliance.

Kazi Zinat Hoque, J.

I agree.