IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 6606 of 2015

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. Motahar Hossain

                  ………… Petitioner.

-Versus-

Government  of  the  People’s  Republic  of Bangladesh, represented by the Secretary, Ministry  of  Education,  Bangladesh Secretariat, Shahbag, Dhakaand others,

        ... Respondents.

Mr. Bivash Chandra Biswas, Advocate

           …For the petitioner. Mr. Bepul Bagmar, D.A.G.

         …For respondent No.1. Mr. Md. Humayun Kabir, Advocate with Mr. Sarwar Ahmed, Advocate with

Mr. Utpal Biswas, Advocate and

Mr. Songjukta Dobay, Advocate

..For Respondent Nos. 7-9.

Judgment on: 13.12.2023

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K M Zahid Sarwar

MD. KHASRUZZAMAN, J.:

In an application under article 102 of the Constitution, on 29.06.2015 the  Rule  Nisi  under adjudication was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the impugned inaction in not passing any

order by the respondent No.2 for cancelling the salary sheet forwarded to the Rupali Bank Limited, Satkhira Branch by the governing body, Satkhira Ayenuddin Mohila Alim Madrasha, Satkhira for the month of April, 2015 fixing the salary and other allowances of this petitioner amounting to Taka 18,835/- instead of Taka 22,065/- should not be declared to have been passed/  without  lawful  authority  and  is  of  no  legal  effect and/or such other or further order or orders as to this Court may seem fit and proper.”

Facts, necessary for disposal of the Rule Nisi, in short, are that as per appointment notice published in the daily newspaper namely,  Jonobarta  dated  03.10.1995,  the  petitioner  applied  for appointment in the post of Lecturer of Islamic History of Satkhira Ayenuddin Mohila Alim Madrasha. Thereafter, the petitioner faced for the written and viva voce examination vide Annexure-D to the writ  petition.  When  the  petitioner  applied  for  appointment,  the examination  of  Master  of  arts  could  not  be  held  in  time  and consequently, the result of the examination was not published in due  time.  The  Principal  of  the  madrasha  vide  letter  dated 06.12.1995  appointed  the  petitioner  in  the  post  of  Lecturer  of Islamic History on condition to submit his Master degree certificate within  next 03  years. As  per appointment letter, the petitioner joined the said madrasha on the same day on 06.12.1995 vide Annexures- F and F-1 to the writ petition. The result of the M.A. examination  was  published  in  the  first  part  of  1999  and  the petitioner on obtaining the M.A. degree certificate submitted the same  to  the  madrasha  authority.  Thereafter,  the  name  of  the petitioner was enlisted in the monthly pay order (MPO) against Index No.582441 with effect from 01.07.2002 which is evident from the monthly pay order of October, 2002 (Annexure-G). Since then he has been serving as a Lecturer of the said madrasha to the satisfaction of the concerned authority.

It is stated that on 17.12.2010 the petitioner along with three other  Lecturers  of  the  madrasha  submitted  their  respective applications to the Principal of the madrasha for promotion to the post of Assistant Professor vide Annexures- H, I, I(1) and I(2) to the writ petition. Ultimately, a Selection Committee constituted by the madrasha  authority  having  considered  the  Paripatra  dated 28.11.2010  of  the  Ministry  of  Education  recommended  the petitioner  for  giving  him  promotion  to  the  post  of  Assistant Professor (Annexure-J). The Governing Body of the madrasha vide resolution dated 14.02.2013 accepted the report of the Selection Committee (Annexure-K) and thereby promoted him to the post of Assistant Professor. Thereafter, relevant papers were sent to the respondent  No.2  for  consideration  of  the  promotion  of  the petitioner.  The  respondent  No.2  accepted  the  promotion  of  the petitioner and his name was enlisted in the monthly pay order fixing his salary at Taka 18,365/- [Annexures-L, L(1) and L(2)]. While the petitioner was serving in the said post, the respondent No.9  Md.  Sharifuzzaman  filed  an  application  to  the  madrasha authority for giving him promotion as Assistant Professor in place of the petitioner. It is stated that the selection committee by its report dated 04.11.2013 found the promotion of the petitioner to be correct [Annexures-O, O(1) and O(2)]. The respondent No.9 Md. Sharifuzzaman  again  on  31.12.2014  filed  an  application  to  the President of the Governing Body of the madrasha for promoting him as Assistant Professor in place of the petitioner. The selection committee  vide  their  report  dated  19.03.2015  opined  that  the respondent No.9 Md. Sharifuzzaman is fit for promotion to the post of Assistant Professor in place of the petitioner [Annexures- P and P(1)]. As per the report of the selection committee, the Governing Body of the Madrasha vide its resolution dated 05.04.2015 decided to cancel the promotion of the petitioner by giving promotion to Md. Sharifuzzaman,  Lecturer  of  Arabic  in  the  post  of  Assistant Professor[Annexure-M(1)]. This decision of the Governing Body was communicated  to  the  petitioner  vide  letter  dated 13.04.2015(Annexure-M).Thereafter,  the  madrasha  authority illegally selected the monthly salary and other allowances of the petitioner at Taka 18,835/- instead of Taka 22,065/-. It is stated that without issuing any show cause notice the madrasha authority took decision to demote him to the post of Lecturer from the post of Assistant Professor which is illegal and without lawful authority.

Afterwards, the petitioner filed an application along with legal opinion of an Advocate to the Governing body of the madrasha for reconsider the decision of cancelling the promotion of the petitioner (Annexures- Q and R). But they did not do anything on the same. Thereafter, the petitioner filed an application to the respondent No.2 for redress (Annexure-U). But the respondent No.2 also did not make any response to the said application.

Under such circumstances, the petitioner moved this Court under article 102 of the Constitution challenging the inaction of the respondents and thereby obtained the present Rule Nisi.

Respondent  No.9,  Md.  Sharifuzzaman  filed  affidavit-in- opposition denying all the material allegations made in the writ petition contending inter-alia that the respondent No.9 along with three  others  including  the  petitioner  applied  to  the  concern authority for promotion in the post of Assistant Professor but, the authority of the Madrasha most illegally promoted the petitioner in the post of Assistant Professor based on the so-called report dated 20.08.2012 (Annexure-J). In the said report dated 20.08.2012 it is opined that as per Nitimala dated 24.10.1995 the respondent No.9 did not have required educational qualification and experience at the time of joining by ignoring the fact that the advertisement for appointment in the post of Lecturer was published before the said Nitimala of 1995 came into force and as such the report is not a report in the eye of law. Rather, the petitioner did not have required qualification because at the time of appointment on 06.12.1995 he did not pass the Master degree examination which he obtained in 1999. So, it is crystal clear that the report dated 20.08.2012 is a biased report. But the madrasha authority based on such report promoted the petitioner in the post of Assistant Professor. As such, the respondent No.9 lastly, applied to the governing body of the madrasha on 31.12.2014 and the matter was investigated by the enquiry committee who opined that the respondent No.9 was the most  suitable  candidate  for  promotion  as  per  Nitimala,  2012 [Annexure-P(1)]. Thereafter, the governing body vide its resolution dated 05.04.2015 cancelled the promotion of the petitioner and promoted the respondent No.9 to the post of Assistant Professor. The  decision  of  the  governing  body  was  communicated  to  the petitioner vide letter dated 13.04.2015. The joining date of all the candidates for promotion is on 06.12.1995. The enlistment date of all the candidates in the monthly pay order is on 01.07.2002. So, as per clause 13 of the Nitimala, 2012 the respondent No.9 is senior than the other candidates including the petitioner since his date of birth is on 15.02.1971. So, there is no illegality on the part of the respondents to promote the respondent No.9 in the post of Assistant Professor. It is stated that on 06.05.2015 the Principal of the  Madrasha  vide  its  Memo  dated  06.05.2015  requested  the respondent No.2 for dropping out the name of the petitioner from the salary Code No. VI. Before the matter being finalized by the respondent  No.2,  the  petitioner  filed  this  writ  petition  on 21.06.2015 and obtained the Rule Nisi on 29.06.2015.

However, on the basis of the said letter dated 06.05.2015 sent by the Principal of the madrasha, the office of the respondent No.2 vide letter dated 09.09.2015 asked the Principal of the madrasha, the  petitioner  and  respondent  No.9  to  be  present  before  the respondent No.2 along with all relevant papers. The petitioner vide letter dated 04.10.2015 requested the respondent no.2 not to take any  step  in  the  matter  due  to  pendency  of  the  writ  petition. Thereafter, an enquiry was conducted and the enquiry office vide its report dated 03.11.2016 opined that the decision to cancel the promotion of the petitioner from the post of Assistant Professor was lawful. In the said report it was also opined that as per clause 13 of the  Nitimala  2012,  the  respondent  No.9  is  senior  than  the petitioner. Thereafter, the authority vide letter dated 07.05.2017 asked the petitioner to reply within 7 days as to why his promotion should not be cancelled for the reason of his illegal promotion in the post of Assistant Professor. The petitioner ultimately vide its reply  dated  15.05.2017  stated  that  since  the  writ  petition  is pending, he is unable to make any comment which shows that the petitioner  is  willfully  restraining  the  respondent  No.2  from disposing of the application dated 13.05.2015 and as such, the petitioner is taking double standard and double tongued before the Court. So, the petitioner does not come before the Court with clean hands. Accordingly, it is stated that the  Rule Nisi is, therefore, liable to be discharged.

Mr. Bivash Chandra Biswas, the learned Advocate appearing on behalf of the petitioner, submits that the petitioner does not have any third division in his education life and he had/has all required qualification for appointment in the post of Lecturer. As such, he was promoted as Assistant Professor since September, 2013 by the Selection Committee appointed by the Governing Body of  the  Madrasha  on  due  consideration  of  the  Nitimala  dated 28.11.2010 circulated by the respondent No.2. Since then he has been performing his duty and withdrawing his salary as Assistant

Professor. Whereas, the respondent No.9 Md. Sharifuzzaman got 3rd division in Alim and Fazil examinations and as such, under no circumstances the respondent No.9 can get promotion in the post of Assistant Professor. But the authority without considering the matter in its  true perspective vide resolution dated 05.04.2015 cancelled the promotion of the petitioner and thereby promoted the respondent No.9 in his place illegally and without lawful authority. He further submits that it is a settled principle of law that no man can be penalized unheard. Since he was not served with any show cause  notice  before  cancelling  his  promotion,  the  action  is completely without lawful authority. Accordingly, he has prayed for making the Rule Nisi absolute.

Mr.  Bepul  Bagmar,  the  learned  Deputy  Attorney  General appearing on behalf of the respondent government, by referring to clause 13 of the Jonobal Kathamo Nitimala, 2012, submits that the seniority of teachers and staffs would be counted from the date of enlistment in the monthly pay order. But where the enlistment date in the monthly pay order is the same in that case, their seniority would be fixed up considering the joining date of their service. If the joining date is found to be the same, in that case, seniority would be ascertained on the basis of their respective date of birth. So, the law  is  very  clear  in  this  regard.  Whether  the  cancellation  of promotion of the petitioner by the governing body of the madrasha is lawful, for this the matter is pending for adjudication. However, the matter could not be reached to its finality by the respondent government due to the action of the petitioner. As such, the writ petition is premature and the  Rule Nisi is therefore liable to be discharged.

Mr. Sarwar Ahmed along with Mr. Md. Humayun Kabir, Mr. Utpal Biswas and Mr. Songjukta Dobay, the learned Advocates appearing on behalf of the respondent Nos. 7 to 9 adopted the submissions  made  by  the  learned  Deputy  Attorney  General.  In addition to the above submissions of the leaned Deputy Attorney General, Mr. Humayun Kabir, the learned Advocate submits that the date of birth of the petitioner is on 31.12.1974 and the date of birth of the respondent No.9 is on 15.02.1971. The enlistment date in the monthly pay order of all the candidates is on 01.07.2002 i.e. on the same date. Since the law is very clear in this respect, as such, the governing body of the madrasha did not commit any illegality  in  cancelling  the  promotion  of  the  petitioner  and promoting the respondent No.9 in the post of Assistant Professor vide resolution dated 05.04.2015 which was communicated to him on 13.04.2015. Thereafter, the madrasha authority sent all relevant papers to the respondents for dropping out his name from the salary Code-VI but the authority could not finalize the matter due to filing of the writ petition and pendency of the same. Referring to the decision in the case of  Kamaluddin (Md) and another Vs. Secretary,  Ministry  of  Land,  Bangladesh  and  others,  56 DLR(AD)212  the learned Advocate for the respondents submits that admittedly, the matter did not reach to its finality and the petitioner  apprehending  of  being  affected  by  the  act  of  the respondents filed the writ petition and obtained the Rule Nisi which is  not  maintainable  in  the  eye  of  law.  Hence,  he  prays  for discharging the Rule Nisi.

We have considered the submissions of the learned Advocates of  the  respective  parties,  perused  the  writ  petition,affidavit-in- opposition along with all papers annexed thereto as well as the decision  referred  to  above  by  the  learned  Advocate  for  the respondent Nos. 7 to 9.

The dispute between the petitioner and the respondent No.9 is regarding their eligibility for promotion in the post of Assistant Professor.It is claimed by the petitioner that he has no 3rd division in his educational career and he has appointed in the post of Lecturer of Islamic History. His name was enlisted in the monthly pay order with effect from 01.07.2002. Thereafter, he applied for promotion in the post of Assistant Professor along with other three candidates.  The  madrasha  authority  appointed  a  selection committee  for  scrutiny  and  recommendation.  The  selection committee  vide  its  report  dated  20.08.2012  considered  the paripatra dated 28.11.2010 circulated by the respondent No.2 and recommended the petitioner for giving promotion in the post of Assistant Professor. Based on the said report, the governing body of the madrasha vide resolution dated 14.02.2013 accepted the report of the selection committee and promoted the petitioner to the post of Assistant Professor. Thereafter, his name was enlisted in the monthly pay order as Assistant Professor fixing his salary at Taka 22,065.00.  But  the  governing  body  being  influenced  vide  its resolution  dated  05.04.2015  cancelled  the  promotion  of  the petitioner and promoted the respondent No.9. It is also claimed that the governing body took  decision to demote the petitioner which is not sustainable in law. No show cause notice was issued to him and as such, the action of the Governing Body is illegal and without lawful authority.

On the other hand, the respondent No.9 Md. Sharifuzzaman by filing affidavit-in-opposition stated inter-aliathatat the joining in the post of Lecturer of Islamic History in 1995, the petitioner did not  have  required  qualification  because  admittedly  he  obtained master degree certificate in 1999. Even then, he was appointed in the said post condition to submit Master Degree certificate within the  next  three  years.  It  is  stated  that  the  joining  date  of  the petitioner was on 10.12.1995 as found from the enquiry report dated 03.11.2016, and he tempered the joining date and made it 06.12.1995  instead  of  10.12.1995.  Regarding  the  required qualification it is stated that the advertisement for appointment was  published  on  03.10.1995  which  is  much  earlier  than  the Jonobol Kathamo 2010 came into operation. As such, question of having 3rd division in educational career as per Nitimala 2010 is immaterial in respect of the respondent No.9. It is stated that the joining date and the enlistment date in the monthly pay order for both  the  petitioner  and  the  respondent  No.9  are  same  i.e.  on 06.12.1995 and 01.07.2002 respectively. But the date of birth of the  petitioner  and  the  respondent  No.9  is  31.12.1974  and 15.02.1971 respectively. By referring to clause 13 of the Nitimala 2012  it  is  stated  that  the  respondent  No.9  is  senior  than  the petitioner and as such, the madrasha authority did not commit any illegality  in  cancelling  the  promotion  of  the  petitioner  and  in promoting the respondent No.9 as Assistant Professor. Finally it is stated that the writ petition is pre-mature since the matter has not reached to its finality by the respondent government.

These are the claims and counter-claims of the petitioner and the respondent No.9 regarding their eligibility for getting promotion in  the  post  of  Assistant  Professor  as  noted  above.  Since  the question of pre-maturity of the writ petition i.e. maintainability of the same has been raised by the respondents it would be wise and profitable to address the said issue. If it is found that the writ petition is pre-mature and not maintainable at the threshold of article 102 of the Constitution, then it would be meaningless and redundant to go into the merit of the writ petition.

It appears from the writ petition that on 21.03.2015 and 28.03.2015  the  petitioner  moved  the  governing  body  of  the madrasha for cancelling the promotion of the respondent No.9 as Assistant Professor by re-instating the petitioner in the said post. Being  failed  to  get  any  redress,  the  petitioner  thereafter  on 13.05.2015  moved  the  respondent  No.2  i.e.  Director  General, Directorate  of  Secondary  and  Higher  Secondary  Education, Shikkha Bhaban, Dhaka for redress. But the respondent No.2 did not make any response to the same.

However,  after  cancelling  promotion  of  the  petitioner,  the Principal  of  the  madrasha  vide  its  Memo  dated  06.05.2015 requested  the  respondent  No.2  to  drop  out  the  name  of  the petitioner from  the  Salary  Code  VI  and  when  the matter  is  in progress for the steps to be taken, the petitioner filed the instant writ  petition  on  21.06.2015  and  obtained  the  Rule  Nisi  on 29.06.2015. In the reply to the show cause notice dated 07.05.2017 the petitioner clearly mentioned that against the resolution dated 05.04.2015 taken by the governing body of the madrasha regarding cancellation  of  petitioner’s  promotion  by  promoting  respondent No.9 as Assistant Professor, the petitioner has filed Writ Petition No.6606 of 2015 before the High Court Division. Though the writ petition has been filed against the decision of the governing body but the same has not reached to its finality till date.

From the terms of the Rule Nisi order dated 29.06.2015, it is clear that the petitioner challenged the inaction of the respondent No.2 to cancel the salary sheet forwarded to Rupali Bank Limited, Satkhira Branch, Satkhira by the governing body for the month of April, 2015 fixing salary and other allowances of the petitioner amounting to Taka 18,835.00 instead of Taka 22,065.00.

Governing Body of a Non-Government Educational Institute is not  connected  with  the  affairs  of  the  Republic  or  of  a  local authority. Since the decision of the governing body is subject to approval by the respondent Board and since while the matter was in progress before the respondent Board, the petitioner filed this writ petition which shows that before the decision of the governing body of the madrasha being finalized by the respondent Board the writ petition was filed. On similar situation, the Appellate Division in  the  case  of  Kamaluddin  (Md)  and  another  Vs.  Secretary, Ministry of Land, Bangladesh and others, 56 DLR (AD) 212 held as follows:

“…………….The law is now settled that unless final order is passed in a matter, person interested in the matter or persons  apprehensive  of  being  affected  by  the  act  of functionaries performing functions in connection with the affairs  of  the  Republic  or  of  a  local  authority  is  not entitled  to  invoke  the  writ  petition  as  against  the intermediate steps as a preclude to the making of that order seeking declaration as to the legality or otherwise of the intermediate or ad-interim order(s).”

The decision as quoted above is squarely applicable in the facts and circumstances of the present case. As such, we do not have any option but to subscribe the same view of the Appellate Division that the writ petition is premature and not maintainable against the decision of the governing body of the madrasha since the  same  has  not  yet  been  reached  to  its  finality  under  the provision of law. Moreover, there is a long line of the decisions of our  apex  Court  that  no  writ  lies  against  the  decision  of  the governing body of the madrasha since the governing body is not connected with the affairs of the Republic or of a local authority.

In this respect, we are to examine what are the constitutional provisions employed in article 102(2)(a)(ii) of the Constitution under which the instant writ petition has been filed before this Court which is quoted below:

“102(2) The High Court Division may, if satisfied that no other equally efficacious remedy is provided by law- 

(a) On the application of any person aggrieved, make an order-

(i)……………………………………..

(ii) declaring that any act done or proceeding taken by a person performing functions in connection with the affairs of the Republic or of a local authority has been done or taken without lawful authority and is of no legal effect”  

Having gone through the aforesaid constitutional provision it is clear that writ petition is maintainable only when the action or the  proceeding  taken  by  a  person  performing  functions  in connection with the affairs of the Republic or of a local authority.

In the instant case, on reading of the terms of the Rule Nisi, it appears that the petitioner is aggrieved by the decision of the governing body of the madrasha. It further appears that the petitioner has categorically admitted in the writ petition as well as in the reply to the notice of the respondent Board as mentioned above  that  against  the  decision  of  the  governing  body  dated 05.04.2015 he has filed the writ petition. And before the decision being finalized by the respondent Board, the decision remains as the decision of the governing body of the madrasha. The Appellate Division  in  the  case  of  Noor-e-Alam  Jahangir(Md)  English Teacher, Rifles Public School and College Vs. Government of Bangladesh,  represented  by  the  Secretary,  Ministry  of Education and others, 60 DLR(AD)12 has held at paragraph No.2 (relevant portion is quoted below):

“……….the impugned order has not been passed by any statutory body or local authority and further, admittedly the Principal of the above Rifles Public School and College is also not in the service of the Republic and accordingly, the  writ petition is not maintainable.”

In view of the above findings, we are of the view that the writ petition is premature and not maintainable under article 102 of the Constitution. Hence, the Rule Nisi is liable to be discharged.

Accordingly,  the  Rule  Nisi  is  discharged.  The  interim direction granted earlier is hereby recalled and vacated.

 There will be no order as to costs. Communicate the order.

K M Zahid Sarwar, J.    I agree.