IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

               (SPEICIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 926 OF 2013 IN THE MATTER OF:

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

- A N D -

IN THE MATTER OF :

Md. Harun-Ur-Rashid. 

         -----Petitioner.       -V e r s u s-

Bangladesh and others.

                            -----------Respondens.

Mr. A.K.M Jaglul Haider Afric, Advocate.

                -------For the Petitioner. Mr. Shohrowardi, Advocate

       -------- For Added Respondent No.4 Mr. Samarendra Nath Biswas with

Mr. Purabi Rani Sharma, A.A.Gs. 

                  ------For Respondent No.1.

Heard on 21.11.2013 and 25.11.2013 and Judgment on 03.12.2013.

Present : 

Mr. Justice M. Moazzam Husain

And

Mr. Justice Md. Badruzzaman.  

Md. Badruzzaman,J.

On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, this  rule nisi was issued calling upon the respondents to show cause as to why the

impugned order vide Memo No. A/98zel¢pwc£/1546 dated 13.1.2013 issued under the signature of the respondent No.3, granting approval of the Managing Committee of the Shibpur Pilot Girls’ High School, Shibpur, Narshingdi so far as it relates to the post of Chairman thereof shall not be declared to have been issued without lawful authority and is of no legal effect and as to why the respondents shall not be directed to grant approval to the newly elected Managing Committee of the Shibpur Pilot Girls’ High School, Shibpur, Narshingdi under the Chairmanship of the petitioner sent to the respondent No.3 in the prescribed form on 29.11.2012 (Annexure-D) and to publish the same in the official Gazette.

At the time of issuance of rule on 21.1.2013 operation of the impugned Memo (Annexure-E) so far it relates to the post of Chairman of the Managing Committee has been stayed and the UNO, Shibpur Upazilla was directed to operate the Bank account(s) of the school jointly with the Headmaster and jointly sign salary sheets, cheques, vouchers, etc. connected with the salary and privileges of the teachers and employees and other expenses of the school. The said direction was modified at the instance of the petitioner by order dated 19.6.2013 allowing the petitioner to operate the Bank Account of the school, and sign the salary sheet of the staff as usually jointly with the Headmaster. However, in C.M.P No. 602 of 2013 filed by added respondent No.4, the learned chamber Judge of the Appellate Division by order dated 20.6.2013 modified the said direction dated 19.6.2013 allowing one Mr. Dewan Mustafa Muznu to sign the salary sheets

and cheques of the teachers and employees of the school in question.

Facts, for the purpose of disposal of the Rule, in short, are

that Upazilla Nirbahi Officer, Shibpur, Narshingdi appointed Mr. Mohammad Ashraful Alam Siddique, the Upazilla Academic Supervisor, Shibpur, Narshingdi as the presiding officer for holding election of the managing committee of Shibpur Pilot Girls’ High School, Narshingdi. Said presiding officer declared election schedule on 4.11.2012 fixing 22.11.2012 for holding election. In the said election 9 (nine) persons were elected as members of the managing committee in different categories. The elected members of the committee held a meeting on 28.11.2012

for election of the Chairman of the managing committee and in the

said meeting the name of the petitioner and added respondent

No.4 were proposed as the chairman and they secured 5:5 votes

and as per provision of Probidhan 35(6) of “j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡XÑ, Y¡L¡ (j¡dÉ¢jL J EµQ j¡dÉ¢jL Ù¹−ll ®hplL¡l£ ¢nr¡ fË¢aÖW¡−el Ni¢eÑw h¢X J jÉ¡−e¢Sw L¢j¢V) fË¢hd¡ej¡m¡, 2009” (hereinafter referred to

as “Probidhanmala, 2009”) the petitioner got casting vote and was elected as chairman of the managing committee defeating the added respondent No.4 by a margin of 1 (one) vote and accordingly a resolution (Annexure-C) was written to that effect.

The full committee of the school was forwarded on 29.11.2012 by the Headmaster to the Education Board in prescribed form for approval. The respondent Board accorded approval of the committee on 13.1.2013 as contained in Annexure-E to the writ petition but in the approval letter it transpired that the committee was approved by the Board with the added respondent No.4 as chairman in place of the elected chairman i.e the petitioner.

 Challenging the legality and propriety  of the said letter dated 13.1.2013 issued under the signature of respondent No. 3, the  petitioner has invoked our jurisdiction under Article 102 of the Constitution and obtained the present Rule.

Mr. A.K.M Jaglul Haider Afric, learned Advocate appearing on behalf of the petitioner submits that the respondents violated the principle of natural justice in excluding the name of the petitioner by adding the name of added respondent No.4 as chairman in his place at the time of approval of the managing committee by the impugned order though petitioner was legally elected as chairman as per probidhan 8 read with probidhan 35(6) of Probidhanmala, 2009 by the newly elected members of the proposed managing committee and as such the same is illegal, malafide and colourable exercise of power and liable to be declared to have been passed and issued without lawful authority and is of no legal effect.

Mr. Md. Shohrowardi, learned Advocate appearing on behalf of added respondent No. 4 submits that process of election of chairman of the proposed managing committee was ex-facie illegal in view of the  provision laid down in probidhan 8 of Probidhanmala, 2009 inasmuch as though the Headmaster of school is authorised only to arrange meeting of the newly elected members of the proposed committee for the purpose of election of Chairman by their majority support and in doing so the Headmaster of the institution acts as the Head of the educational institution and not as the member-secretary of the proposed managing committee and though he/she has no right to cast vote for election of chairman of the proposed committee but in the instant case the Headmaster illegally cast vote infavar of the petitioner, which is no vote in the eye of law and as such question of casting vote by the president of the meeting does not arise at all. To elaborate his contention, learned Advocate further submits that added respondent No.4 got 5(five) votes out of 9(nine) votes of the newly elected members and the petitioner got 4 (four) votes and accordingly the added respondent No.4 was elected as the chairman of the managing committee but the Headmaster in collusion with the petitioner sent the proposal of the managing committee to the Board by including the name of the petitioner as the Chairman showing that the petitioner obtained 6 (six) votes mentioning in the resolution dated 28.11.2012 to the effect that the Headmaster cast 1(one) vote for the petitioner and being the position 5:5 the president of the meeting applying provision of probidhan 35(6) cast second vote (casting vote) in favour of the petitioner and declared him as chairman, violating the provision of probidhan 8 of Probidhanmala, 2009. Learned Advocate further submits that aforesaid act of illegality was taken to the notice of the Board by the five elected members of the committee, who were present in the meeting by application dated 2.12.2012 and 5.12.2012 as contained in Annexure-2 and 3 to affidavit-in- opposition and the Board considering all the relevant papers and the above illegality rightly approved the managing committee by the impugned memo with the added respondent No.4 Md. Asaduzzaman as chairman in place of the petitioner and as such no interference is called for by this Court. Consequently the rule should be discharged with cost. 

We have heard the learned Advocates and perused the record. It appears that after election of nine members of the proposed managing committee a meeting was held on 28.11.2012 for the purpose of election of chairman of the managing committee and a resolution of the meeting was farwarded to the Board to that effect showing that the petitioner was elected as chairman getting 6 votes who defeated the added respondent No. 4, who got 5 votes. Content of the resolution is quoted below for

convenience of appreciation:

“gva¨wgK I DPP gva¨wgK ¯ ‡— ii †emiKvwi wk¶v cÖwZôv‡bi MfwY ©s ewW I g¨v‡bwRs

KwgwU cÖweavbgvjv, 2009

wkecyi cvBjU evwjKv DPP we`¨vjq

wkecyi, biwms`x| 28/11/2012 Lªx:

be wbe©vwPZ Dcw¯’Z m`m¨M‡bi bvg I ¯^v¶i t

1| Rbve †`Iqvb †gv¯ d— v gRby mvavib AwffveK m`m¨    

2| Rbve kvnxb wgqv mvavib AwffveK m`m¨ 

3z Se¡h ¢Lib f~Bqv mvavib AwffveK m`m¨ 

4| Rbve Avt Kvw`i Lvb mvavib AwffveK m`m           

5| Rbvev mvgmyb bvnvi †eMg msiw¶Z gwnjv m`m¨        

6| Rbve †gvdv¾j †nv‡mb Lvb †mRy `vZv †kªbx m`m¨

7| Rbve †gvt Gg`v`yj nK mvavib wk¶K

8| Rbve gvBb DwÏb mvavib wk¶K

9| Rbvev †mZviv †eMg mvavib wk¶K

10| Rbve †gvt mv¾vZ †nv‡mb f~Tv cÖavb wk¶K I m`m¨ mwPe

A`¨ 28/11/2012 Lªx: ZvwiL †ivR eyaevi weKvj 2.30 NwUKvq wkecyi cvBjU evwjKv D”P we`¨vj‡qi be wbe©vwPZ g¨v‡bwRs KwgwUi m`m¨M‡bi cÖ_g mfv we`¨vj‡qi Awdm K‡¶ AbywôZ nq| D³ mfvq mfvcwZZ¡ Kivi Rb¨ AwffveK m`m¨ Rbve †`Iqvb †gv¯ d— v (gRby) `vZv

m`m¨ Rbve †gvdv¾j †nv‡mb Lvb †mRyi bvg cÖ¯ v— e K‡ib| D³ cÖ¯ v— e Dcw¯’Z mKj m`m¨M‡bi mg_©‡b M„wnZ nq| AZci Dcw¯’Z mKj‡K ab¨ev` Rvwb‡q mfvi KvR Avi¤f K‡ib|

1 bs Av‡jvP¨ m~Px †gvZv‡eK beMwVZ g¨v‡bwRs KwgwU MVb K‡í AwffveK m`m¨ Rbve Avãyj Kvw`i Lvb wkecyi cvBjU evwjKv D”P we`¨vj‡qi g¨v‡bwRs KwgwUi mfvcwZi Rb¨ Rbve nvi“byi ikx` Lv‡bi bvg cÖ¯ v— e K‡ib| D³ cÖ¯ v— e AwffveK m`m¨ Rbve †`Iqvb †gv¯ d— v gRby, msiw¶Z gwnjv m`m¨ Rbvev mvgmyb bvnvi, `vZv m`m¨ Rbve †gvdv¾j †nv‡mb Lvb

†mRy I we`¨vj‡qi cÖavb wk¶K Rbve mv¾vZ †nv‡mb f~Tv D³ cÖ¯ v— e mg_©b K‡ib|

D³ Av‡jvP¨ m~Px‡Z be MwVZ g¨v‡bwRs KwgwU MVb K‡í mvavib wk¶K cÖwZwbwa Rbve †gvt Gg`v`yj nK wkecyi cvBjU evwjKv D”P w `¨v ‡qi g¨v‡bwRs KwgwUi mfvcwZi Rb¨ Rbve Avmv`y¾vgvb (Avmv`) Gi b g cÖ¯ v— e K‡ib D³ cÖ¯ v— e AwffveK m`m¨ Rbve wKib fyBqv, AwffveK m`m¨ Rb kvnxb wgqv, mvavib wk¶K cÖwZwbwa Rbve gvBb DwÏb I msiw¶Z gwnjv wk¶K cÖwZwbwa Rbvev †m‡Ziv †eMg D³ cÖ¯ v— e mg_©b K‡ib| d‡j Rbve nvi“byi ikx` Lvb 05 (cvP) I Avmv`y¾vgvb Avmv` 05 (cvP) mgvb msL¨K

†fvU cvb|

GgZve¯’vq, gva¨wgK I DPP gva¨wgK †emiKvix wk¶v cÖwZôv‡bi Mfvwb©s ewW I g¨v‡bwRs KwgwU cÖweavb gvjv 2009 Gi 35(6) †gvZv‡eK †fv‡Ui mgZvi Kvi‡Y mfvq mfvcwZZ¡Kvix e¨w³ Rbve †gvdv¾j †nv‡mb Lvb †mRy mv‡eK Dc‡Rjv †Pqvig¨vb wewkó mgvR †meK I wk¶vbyivMx Rbve nvi“byi

ikx` Lvb mv‡ne‡K wØZxq ev wbb©vqK †fvU cÖ`vb K‡i be MwVZ g¨v‡bwRs KwgwUi mfvcwZ wbe©vwPZ K‡ib|

2 bs Av‡jvP¨ m~Px †gvZv‡eK AwffveK m`m¨ Rbve wKib f~Bqv wkecyi cvBjU evwjKv DPP we`¨vj‡qi be MwVZ g¨v‡bwRs KwgwUi †Kv-AÞ m`m¨ wnmv‡e Rbve †gvt AvIjv` †nv‡mb miKv‡ii bvg cÖ¯—ve K‡ib| D³ cÖ¯ v— e AwffveK m`m¨ Rbve kvnxb wgqv, mvavib wk¶K cÖwZwbwa †gvt Gg`v`yj nK, mvavib wk¶K cÖwZwbwa Rbve gvBb DwÏb Ges msiw¶Z gwnjv wk¶K cÖwZwbwa Rbvev †m‡Ziv †eMg mg_©b K‡ib|

D³ Av‡jvP¨ m~Px †gvZv‡eK AwffveK m`m¨ Rbve †`Iqvb †gv¯—dv gRby wkecyi cvBjU evwjKv DPP we`¨vj‡qi be MwVZ g¨v‡bwRs KwgwUi †Kv-AÞ m`m¨ wnmv‡e Rbve †gvt kwdKzj Bmjvg g„avi bvg cÖ¯ v— e K‡ib| D³ cÖ¯ v— e AwffveK m`m¨ Rbve Kvw`i Lvb, msiw¶Z gwnjv m`m¨ Rbvev mvgmyb bvnvi †eMg, `vZv m`m¨ Rbve †gvdv¾j †nv‡mb Lvb †mRy IcÖavb wk¶K Rbve †gvt mv¾vZ †nv‡mb f~Tv mg_©b K‡ib| d‡j Rbve AvIjv` †nv‡mb miKvi 05 (cvP) I Rbve †gvt kwdKzj Bmjvg g„av 05 (cvP)mgvb msL¨K †fvU cvb|

GgZve¯’vq, gva¨wgK I DPP gva¨wgK †emiKvix wk¶v cÖwZôv‡bi Mfvwb©s ewW I g¨v‡bwRs KwgwU cÖweavb gvjv 2009 Gi 35 (6) †gvZv‡eK †fv‡Ui mgZvi Kvi‡Y mfvq mfvcwZZ¡Kvix e¨w³ Rbve †gvdv¾j †nv‡mb Lvb †mRy Rbve †gvt kwdKzj Bmjvg g„av mv‡ne‡K wØZxq ev wbb©vqK †fvU cÖ`vb K‡i be MwVZ g¨v‡bwRs KwgwUi †Kv-AÞ m`m¨ wbe©vwPZ K‡ib| AZci Avi †Kvb Av‡jvPbv bv _vKvq mfvcwZ mv‡ne Dcw¯’Z mKj‡K ab¨ev` w`‡q mfvi mgvwß †Nvlbv K‡ib|

28/11/12

‡gvdv¾j †nv‡mb Lvb

   mfvi mfvcwZ|”

On perusal of Annexure E, resolution of the meeting dated

28.11.2012 prepared by the president of the meeting it appears that 9 (nine) elected members were present in the meeting, the name of petitioner and added respondent No.4 were proposed as the chairman of the managing committee, the petitioner got 4 votes and the added respondent No.4 got 5 votes. It also appears that Headmaster of the school was present in the meeting claiming as member-secretary of proposed managing committee, singed the attendance register and actively participated in the election process and voted for the writ petitioner to elect him chairman. In this way petitioner got total 5 votes and the margin of vote between the petitioner and added respondent No. 4 stood at 5:5, the president of the meeting gave a casting vote in favour of the petitioner invoking his right under probidhan 35 (6) of Probidhanmala, 2009.

Now question arises as to whether Headmaster of a non- government school is authorized under law to cast vote for any of the chairman candidate and whether the president of the meeting authorized to cast a second vote or casting vote in favavour of any of candidates in view of the provision laid down in probidhan 8 readwith probidhan 35(6) of Probidhanmala, 2009.

To consider the submissions of the contending parties as well as to answer the above questions we are to look into the relevant provisions relating to forming managing committee of a non-government high school contained in Probidhanmala, 2009. Organogram and procedure of formation of managing committee of a non-government High School has been prescribed in probidhan 7 of Probidhanmala, 2009 which is quoted below:

“7|  g¨v‡bwRs KwgwUi MVb|-(1) wbæ ewY©Z m`m¨ mgš^‡q g¨v‡bwRs KwgwU MwVZ nB‡e, h_v:

(K)           cÖweavb 8 Abymv‡i wbe©vwPZ GKRb mfvcwZ; (emphasis added)

(L)             mKj wk¶‡Ki g‡a¨ nB‡Z Zvnv‡`i †fv‡U wbe©vwPZ `yBRb mvaviY

wk¶K m`m¨

****************

(M)               gwnjv wk¶KM‡Yi g‡a¨ nB‡Z Zvnv‡`i †fv‡U wbe©vwPZ GKR msiw¶Z gwnjv wk¶K m`m¨

****************

(N)          beg †kªYx ch©š— wk¶v_©x‡`i AwffveKM‡Yi g‡a¨ nB‡Z gva¨wgK  

¯ ‡— ii mKj AwffveKM‡Yi †fv‡U wbe©vwPZ PviRb mvaviY AwffveK m`m¨; *********************

(O)          beg †kªYx ch©š— wk¶v_©x‡`i gwnjv AwffveKM‡Yi g‡a¨ nB‡Z gva¨wgK ¯ ‡— ii mKj AwffveKM‡Yi †fv‡U wbe©vwPZ GKRb msiw¶Z gwnjv AwffveK m`m¨: ******************

(P)            mswk−ó wk¶v cÖwZôv‡bi cÖwZôvZv, whwb GKRb cÖwZôvZv m`m¨ nB‡eb, Z‡e GKvwaK cÖwZôvZv _vwK‡j Zvnv‡`i g‡a¨ nB‡Z Zvnv‡`i Øviv wbe©vwPZ GKRb m`m¨;

(Q)          `vZvM‡Yi g‡a¨ nB‡Z Zvnv‡`i Øviv wbe©vwPZ GKRb m`m¨;

(R)           wk¶v cÖwZôvb cÖavb, whwb Dnvi m`m¨-mwPeI nB‡eb; (emphasis

         added)

(S)           GKRb †Kv-AÞ m`m¨ whwb ¯’vbxq GKRb we‡`¨vrmvnx e¨w³ Ges

g¨v‡bwRs KwgwUi cÖ_g mfvq Dcw¯’Z m`m¨M‡Yi msL¨vMwi‡ôi mg_©‡b hvnv‡K †Kv-AÞ Kiv nBqv‡Q|

(2)   †Kvb wk¶K wKsev wk¶K †kªYxi m`m¨ g¨vwbwRs KwgwUi mfvcwZ

c‡` wbe©vwPZ nB‡eb bv|”

***********************

After election of members of the proposed managing

committee in different categories as envisages in probidhan 7(1)(Ka) to 7(1)(Cha) as above, the chairman of the managing committee will be elected as per provision of probidhan 8. Probidhan 8 runs as follows:

“8|  g¨v‡bwRs KwgwUi mfvcwZ wbe©vPb|-(1) gva¨wgK ¯ ‡— ii cÖ‡Z¨K †emiKvwi wk¶v cÖwZôv‡bi Ab¨vb¨ m`m¨ wbe©vPb m¤úbœ nBevi AbwaK mvZ w`‡bi g‡a¨ cÖwZôvb cÖavb D³ cÖwZôv‡bi g¨v‡bwRs KwgwUi mfvcwZ wbe©vP‡bi D‡Ï‡k¨ g¨v‡bwRs KwgwUi D³i“c wbe©vwPZ m`m¨M‡Yi GKwU mfv Avnevb Kwi‡eb| (emphasis added)

(2)            Dc-cÖweavb (1) Gi Aaxb AvûZ mfvq Dcw¯’Z m`m¨M‡Yi g‡a¨

nB‡Z Zvnv‡`i Øviv g‡bvbxZ, g¨v‡bwRs KwgwUi mfvcwZ c‡` cÖwZ‡hvMx b‡nb Ggb, GKRb m`m¨ mfvq mfvcwZZ¡ Kwi‡eb|

(3)            D³ mfvq Dcw¯’Z m`m¨M‡Yi msL¨vMwi‡ôi mg_©‡b KwgwUi

m`m¨M‡Yi g‡a¨ nB‡Z A_ev ¯’vbxq wk¶vbyivMx e¨w³, L¨vwZgvb mgvR‡meK, RbcÖwZwbwa ev AemicÖvß cÖ_g †kªªYxi miKvwi Kg©KZ©vM‡Yi g‡a¨ nB‡Z g¨v‡bwRs KwgwUi GKRb mfvcwZ wbe©vwPZ nB‡eb; (emphasis added)”

*************************

It appears from the law quoted above that Probidhan 8 of

Probidhanmala, 2009 provides the procedure for election of Chairman of the new managing committee.  “fË¢aù¡e fËd¡e” as contained in probidhan 8(1) indicates ‘Head of the Educational Institution’ not ‘member-secretary of managing committee of the Institution’ and ‘Eš²l¦f ¢ehÑ¡¢Qa pcpÉ N−el HL¢V pi¡ ’ indicates ‘meeting of members elected in different category as per probidhan 7’. Provision of probidhan 8 is very much clear and unambiguous which provides that after election of member in different categories in view of the provision of probidhan 7, the ‘head of the institution’ would arrange a meeting of the said elected members for the purpose of election of chairman of new managing committee and the elected members, present in meeting, will elect chairman of managing committee by majority votes.

 A combined reading of sub-probidhan (1) and (3) of probidhan 8 it appears that when the ‘Headmaster’ of the institution arranges such meeting for election of chairman he/she acts as the ‘head of the institution’ not as the ‘member-secretary’ of the proposed managing committee, even his/her presence in the meeting is not necessary in view of the provision of probidhan 8. (Emphasis supplied).

Now another question arises as to when the ‘Headmaster’ will act as the ‘member-secretary’ of the managing committee. In this connection provisions of probidhan 9, 29 and 33 are relevant, which are quoted below:

“ 9|  MfwY©s ewW I g¨vwbwRs KwgwUi †gqv`|-cÖweavb 38 Gi

weavb Abymv‡i c~‡e© evwZj Kiv bv nB‡j MfwY©s ewW ev, †¶ÎgZ, g¨v‡bwRs

KwgwUi †gqv` nB‡e Dnvi cÖ_g mfv Abyôvbi ZvwiL nB‡Z cieZx© `yB

ermi:

Z‡e kZ© _v‡K †h, †Kvb MfwY©s ewW ev †¶Îg‡Z, g¨v‡bwRs KwgwUi †gqv` DËxY© nIqv m‡Ë¡I Dnvi DËivwaKvi MfwY©s ewW ev †¶ÎgZ g¨v‡bwRs

KwgwUi cÖ_g mfv AbywôZ bv nIqv ch©š— D³ cÖ_g MfwY©s ewW ev †¶ÎgZ g¨v‡bwRs KwgwU Dnvi `vwqZ¡ cvjb Ae¨vnZ ivwL‡e|

**********

29|  †evW©‡K AewnZKiY, cÖÁvcb Rvwi, BZ¨vw`|-

(1)             *************************************

(2)             *************************************

(3)             g¨v‡bwRs KwgwUi m`m¨ I mfvcwZ wbe©vPb m¤úbœ nBevi

AbwaK wZb w`‡bi g‡a¨ cÖwZôvb cÖavb wbe©vwPZ e¨w³M‡Yi c~Y© bvg I wVKvbv Ges m`m¨ wbe©vP‡bi Rb¨ AbywôZ mfvi Kvh©weeiYxi mZ¨vwqZ Abywjwcmn

KwgwU Aby‡gv`‡bi Rb¨ †ev‡W© †cÖiY Kwi‡eb Ges †evW© KwgwU Aby‡gv`bc~e©K Dnv cÖÁvcb AvKv‡i Rvwi Kwi‡e| (emphasis supplied)

***********

33|  mvaviY mfv Avnevb|-

(1)  †evW© KZ„©K cÖweavb 29 Gi Aaxb cÖÁvcb Rvwii cieZx© wÎk

w`‡bi g‡a¨ MfwY©s ewW ev, †¶ÎgZ, g¨v‡bwRs KwgwUi cÖ_g mfv Abyôvb

Kwi‡Z nB‡e|

(2)      ********************

(3)    **********************

(4)    **********************

(5)    **********************

(6)    ************************”

Probidhan 29(3) as qusted above provides that after election

of chairman and members of new managing committee the Headmaster as Head of the institution, not as member-secretary, would send the attested copy of result of members published by the presiding officer and resolution of the meeting held for the purpose of electing Chairman, to the Board for approval and the Board would publish notification after approval of such committee. Once a managing committee is approved and notification is issued it obtains legal character accruing rights and duties of the committee as provided in probidhanmala, 2009. Unless such approval is given by the Board and notification is issued, no member including member-secretary of the committee can exercise his/her power. On the other hand, probidhan 9 provides tenure of managing committee which is two years effective from its first meeting held within one month from the date of publishing notification issued by the Board as provided in probidhan 33(1). Proviso to probidhan 9 also provides that the outgoing managing committee will function, though its tenure expires, till the 1st meeting of the new managing committee is held. A combined reading of probidhans 9, 29(3) and 33(1) it is clear that a new managing committee obtains legal character as and when it is

approved and a notification is published to that effect by the Board and tenure of the committee starts from it’s first meeting within 30 (thirty) days from the date of publication of such notification by the Board. (emphasis added)

As per probidhan 7(R) Headmaster of a non-government high school acts as member-secretary of managing committee as a ‘head of the institution’ and his function as member-secretary of new managing committee starts from the date of first meeting of the committee in view of the provisions laid down in probidhan 9, 29(3) and 33(1). The headmaster is not authorized to act as the member-secretary of the proposed managing committee before holding it’s first meeting . So before holding first meeting of new managing committee and during the ongoing process of forming new managing committee, the Headmaster acts as the ‘Head of the Institution’ as well as member-secretary of previous managing committee. (Emphasis added) 

Next question whether provision of probidhan 35(6) can be applied at the time of election of chairman of managing committee as per probidhan 8. It would be profitable to quote probidhan 35:

“35|  mfv cwiPvjbv c×wZ|-(1) mKj mfv mswk−ó †emiKvwi wk¶v cÖwZôv‡b AbywôZ nB‡e|

(2)    MfwY©s ewWi ev, †¶ÎgZ, g¨v‡bwRs KwgwUi mfvcwZ mKj

mfvq mfvcwZZ¡ Kwi‡eb Ges Zvnvi Abycw¯’wZ‡Z mswk−ó m`m¨-mwPe I wk¶K m`m¨MY e¨ZxZ Dcw¯’Z Ab¨ m`m¨M‡Yi g‡a¨ nB‡Z Dcw¯’Z m`m¨M‡Yi msL¨vMwi‡ôi mg_©‡b †Kvb m`‡m¨i mfvcwZ‡Z¡ mfv AbywôZ nB‡e|

(3)   †gvU m`m¨ msL¨vi A‡a©K m`‡m¨i Dcw¯’wZ‡Z mfvi †Kvivg

MwVZ nB‡e, Z‡e A‡a©K msL¨v MYbvq †Kvb fMœvsk †`Lv w`‡j cieZx© c~Y©

msL¨v †Kviv‡gi Rb¨ we‡ePbvq Avwb‡Z nB‡e|

(4)   hw` †Kvb mfvq †Kvivg c~Y© bv nq Zvnv nB‡j mfv cieZx©

Kvh©w`em ch©š— g~jZex _vwK‡e Ges D³ Kvh©w`e‡m c~e© w`‡bi wba©vwiZ ¯’vb

I mg‡q D³ g~jZex mfv AbywôZ nB‡e|

(5) g~jZex mfvq †Kvivg cÖ‡qvRb nB‡e bv Ges Dcw¯’Z m`m¨M‡Yi

Øviv mfvi Kvh© cwiPvjbv Kiv hvB‡e|

(6)     mfvq Dcw¯’Z m`m¨M‡Yi msL¨vMwiô m`m¨M‡Yi m¤§wZ‡Z

wm×vš— M„nxZ nB‡e Ges ‡fv‡Ui mgZvi †¶‡Î mfvq mfvcwZZ¡Kvix e¨w³i

wØZxq ev wbY©vqK †fvU _vwK‡e|”

Learned Advocate of the petitioner argued that procedure laid

down in probidhan 35 would apply in taking decision in the meeting for election of chairman as per probidhan 8 inasmuch as

in case of equal vote in deciding the election of chairman, decision have to be taken as per sub-probidhan (6) of probidhan 35 by a casting vote or second vote by the president of the meeting. It appears that language of probidhan 35 or 35(6) is very clear which indicates that those are applicable for conducting meeting of regular managing committee approved by the Board. According to probidhan 8(3) chairman is to be elected by ‘pi¡u Ef¢ÙÛa pcpÉ−cl pwMÉ¡ N¢l−ùl pjbÑ−e’ i.e, by support of the majority members present

in meeting which is a pre-condition in electing chairman. There is no express provision in probidhaman 8 for conducting meeting and taking decision, in case of ‘equal vote or support, as the case may be. So we are unable to accept the contention, as raised by the learned Advocate for the petitioner.

It also appears that 9 (nine) elected members were present in the said meeting out of them 5 (five) voted for the added respondent No.4 and the rest 4 (four) including the president of said meeting voted for the petitioner. In view of majority support of the elected members the added respondent No.4 was elected as the chairman of the proposed managing committee according to probidhan 8(3). It is the contention of added-respondent No.4 that when the headmaster of the school ignoring the result of election proposed the name of the petitioner as the chairman forwarded the full committee to the Board as per probidhan 29(3) showing that the petitioner obtained 6 votes including one vote of headmaster and casting vote of the president of the meeting, the said five members, who voted for added respondent No. 4, raised objection before the Board by application dated 2.12.2013 and 5.12.2013 as contained in Annexure-2 and 3 of affidavit-in-opposition. The Board considering such objection approved the managing committee on 13.1.2013 with the added respondent No.4 as chairman excluding the name of the petitioner.

 Now question arises whether the respondents violated the principle of natural justice in passing the impugned order. In this regard we may refer probidhan 36 of Probidhanmala, 2009. Probidhan 36 prescribes legal consequence for adopting decision, by the managing committee or any of it’s member, which is inconsistent with the probidhanmala and other rules and regulations issued by Government and Board. Probidhan 36 runs as follows:

“36|  wm×vš— MÖnY msµvš— AbymiYxq weavb|-(1) MfwY©s ewW ev,       †¶ÎgZ, g¨v‡bwRs KwgwU GB cÖweavbgvjv wesev †emiKvwi wk¶v cÖwZôvb msµvš—     mgq mgq miKvi KZ©„K cÖ`Ë †Kvb Av‡`k, wm×vš— Ges †evW© KZ„©K R wiK…Z †Kvb Av‡`‡ki mwnZ msMwZc~Y© b‡n GBi“‡c †Kvb wm×vš— MÖnY Kwi‡e bv|

(2) GB cÖweavbgvjvi mwnZ msMwZc~Y© b‡n GBi“c †Kvb wm×vš— M„nxZ

nB‡j, D³i“‡c M„nxZ mKj wm×vš— evwZj I AKvh©Ki ewjqv MY¨ nB‡e Ges

D³i“c wm×vš— MÖn‡Yi Rb¨ MfwY©s ewW ev, †¶ÎgZ, g¨v‡bwRs KwgwUi m`m¨MY GKK I †hŠ_fv‡e `vqx nB‡eb|”

Above provision of probidhan 36 expressly says that any

decision of managing committee, which is inconsistent with this probidhanmala shall be void and ineffective as well as members of the managing committee shall be held liable jointly and severally

for such decision. 

We have already held that Headmaster of the school has no authority to participate in the election process for the purpose of election of chairman and vote for any person as chairman in view of the provision of probidhan 8. So the vote cast by the Headmaster was invalid on the face of it and no vote in the eye of

law and is clearly hit by probidhan 8(3).

Thus decision of the Headmaster in casting vote for the petitioner being void ab inito and ineffective in view of the provision of probidhan 36(2), we are of the view that question of violation of natural justice does not arise. Furthermore, the petitioner by virtue of the forwarding of the Headmaster did not accrue any legal right as chairman as no notification was issued by the Board after approval of the managing committee in view of probidhan 29(3). We, therefore, find no substance in the submission that the respondents violated principle of natural justice. 

Given the facts and circumstances of the case and discussion made above we find no illegality in passing the impugned order dated 13.01.2003, approving the added respondent No. 4 Md. Asaduzzaman as chairman in place of the petitioner and no interference is called for by us.

This rule merits no consideration, which is liable to

discharged.

In the result, the Rule is discharged, however, without any order as to costs.

The order of stay and direction, which was modified later are recalled and vacated.

M. Moazzzam Husain,J:               

                                                          I agree.