Judgement Details

MPO Matter- Md. Bazlur Rahman Bhuiyan vs. Government of Bangladesh and Others.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 15047 of 2016

Judgment  On: 10.02.2022

Appellants: Md. Bazlur Rahman Bhuiyan Vs. Respondent: Government of Bangladesh and Ors.

Hon'ble Judges/Coram:
Zafar Ahmed and Kazi Zinat Hoque, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: A.B.M. Siddiqur Rahman Khan and M.H.M. Shihab Ahmed Shirazee, Advocates

For Respondents/Defendant: Nawroz Md. Rasel Chowdhury, DAG, M.M.G. Sarwar (Payel) and Yeshita Parvin, AAGs

Subject: Employment Laws

Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 133

Disposition:
Rule Made Absolute

JUDGMENT

Zafar Ahmed, J.

1. In the instant writ petition, the petitioner has challenged the memo bearing No. 37.00.0000.074.027.018.2010 (part) .505 dated 19.10.2016 issued by the respondent No. 2 directing the respondent No. 3 to issue final notice upon the petitioner to show cause as to why the Monthly Pay Order (MPO) bearing Index Number 206521 of the petitioner should not be stopped permanently upon stopping the MPO of the petitioner temporarily (Annexure-N) and memo being No. 4G-14-Ma/2014/8941/5 dated 07.11.2016 issued on behalf of the respondent No. 3 giving notice to the petitioner to show cause as to why the MPO of the petitioner should not be stopped permanently (Annexure-O).

2. This Court on 29.11.2016 issued a Rule Nisi and passed an interim order staying operation of the memo dated 19.10.2016 (Annexure-N) and memo dated 07.11.2016 (Annexure-O) so far as they relate to stopping payment of the MPO of the petitioner for a period of 06 months which was later on extended time to time.

3. The respondent No. 3 Director General, Directorate of Intermediate and Secondary Education, Bangladesh entered appearance in the Rule.

4. It is stated in the writ petition that the petitioner was Assistant Teacher of Baliatali C.T. Junior School, Barguna (in short, the 'school'). On 24.08.2010 he was appointed as head teacher of the school. As a result, the post of assistant teacher of Social Science of the school fell vacant.

5. On 20.10.2010, the managing committee of the school decided to appoint a teacher in the aforementioned vacant post and to publish a recruitment notice to mat effect. As per decision of the managing committee, the petitioner, being the head teacher, published the recruitment notice on 24.10.2010 in two daily newspapers. Three candidates applied for the post. On 24.12.2010, the managing committee formed an 'Appointment Board' for recruitment in the said post and to conduct written and oral examinations of the candidates. The 'Appointment Board' consisted on 5 members, namely (1) Chairman of the school's managing committee, (2) Headmaster of Zilla School, Barguna as representative of the respondent No. 3, (3) Upazilla Education Officer as representative of the Ministry of Education, (4) Headmaster of Barguna Ideal Secondary School as representative of respondent No. 4 District Education Officer, Barguna, and (5) Head teacher of the school (petitioner).

6. It is further stated that one Md. Habibur Rahman was already employed in the school as Office Assistant having index of Office Assistant. He also applied for the post of Assistant Teacher of the school on the basis of a circular dated 03.08.2009 issued by the Ministry of Education to the effect that an Office Assistant can apply for the post of Assistant Teacher if he possesses requisite qualifications without having any new index number.

7. Md. Habibur Rahman stood first in both the written and oral examinations and eventually, on 08.01.2011 he was appointed as Assistant Teacher of the school. On 10.01.2011, he joined in the said post. It is stated in the writ petition that the 'Appointment Board' considered the circular dated 03.08.2009 which was supplied by the office of the District Education officer and being satisfied the Board appointed Habibur Rahman in the post of Assistant Teacher.

8. On 16.01.2011, the petitioner, as head teacher of the school, made an application to the respondent No. 3 through the respondent No. 4 for enrolment of Md. Habibur Rahman in the MPO as Assistant Teacher of Social Science of the school which was approved as evident from the MPO sheet dated 01.05.2011.

9. On 27.05.2014, the respondent No. 3 issued a letter to the petitioner seeking explanation as to why the MPO of the petitioner should not be stopped for appointing two teachers against one post of Assistant Teacher of Social Science. The petitioner replied to the said letter on 11.06.2014.

10. On 09.11.2014, the respondent No. 3 issued another letter to the petitioner stating that the reply was not satisfactory. The genuineness of the circular dated 03.08.2009 was also raised in the letter. The petitioner was directed to show cause as to why his MPO should not be stopped. On 10.12.2014, the petitioner replied to the said letter.

11. On 17.05.2015, the respondent No. 3 again issued another letter to the petitioner stating that the appointment of Md. Habibur Rahman was not made in accordance with law. The petitioner was directed to explain as to why his MPO should not be stopped for appointing two teachers in one post. On 30.07.2015, the petitioner replied to the same.

12. On 19.10.2016, the respondent No. 2 (Deputy Secretary, Ministry of Education) directed the respondent No. 3 to issue final notice upon the petitioner to show cause as to why his MPO should not be stopped permanently upon stopping the same temporarily (Annexure-N).

13. Accordingly, on 07.11.2016, the respondent No. 3 issued the notice to the petitioner to show cause as to why his MPO should not be stopped permanently upon stopping the same temporarily (Annexure-O).

14. The legality of the letters dated 19.10.2016 (Annexure-N) and dated 07.11.2016 (Annexure-O) has been challenged in the instant writ petition. Be it mentioned that the petitioner did not reply to the show cause notice dated 07.11.2016 (Annexure-O).

15. The respondent No. 3 did not file any affidavit-in-opposition.

16. For ready reference, the relevant portion of the show cause notice dated 07.11.2016 (Annexure-O) is quoted below:

17. The learned Advocate for the petitioner, at the outset, submits that clause 18(1)(gha) of  (in short, the 'Directives') was inserted in the Directives, 2010 by way of amendment made on 24.03.2013, whereas the appointment in the post of Assistant Teacher in question, for which the petitioner was made liable, was made on 08.01.2011. Therefore, the newly inserted clause 18(1)(gha) cannot be mad applicable retrospectively to the case of the petitioner. In support of the argument, the learned Advocate refers to the cases of Bakhrabad Gas System Limited vs. Al Masud-ar-Noor and others, 66 DLR (AD) (2014) 187, Bangladesh Bank and another vs. Sukamal Sinha Choudhury and another, 21 BLC (AD) (2016) 212, and Government of Bangladesh and others vs. Md. Ruhul Amin Munshi and another, 19 ALR (AD) [2020] 47.

18. In Bakhrabad Gas Systems Ltd., 66 DLR (AD) 187 it was held,

"The appointing authority has every right to amend/alter the service rules to suit the need of the time but not to the detriment or disadvantage to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service. To be more explicit, the appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees, here the writ-petitioners".

19. The above quoted principles were followed and applied in Bangladesh Bank vs. Sukamal Sinha, 21 BLC (AD) 212. In the case reported in 19 ALR (AD) [2020] 47. it was held.

"It is well established that the power to frame rules to regulate the conditions of service under the proviso to Article 133 of the Constitution of the People's Republic of Bangladesh presupposes the power to amend the rules with a retrospective effect.....The established principle of law is that generally a rule operates prospectively if it is not made retrospective by express provision or by necessary implication. This rule is subject to the principle that the rights or benefits acquired or earned by a person under the existing rules cannot be taken away by amendment with retrospective effect or by making new rules with retrospective effect pursuant to the proviso to Article 133 of the Constitution which affects vested rights".

20. Reverting back to the case in hand, it is stated in the impugned memo dated 07.11.2016 (Annexure-O) that the circular dated 03.08.2009, which was the referred to for the appointment of Md. Habibur Rahman as Assistant Teacher in the school and enlisting him in the MPO, was forged and hence, the appointment was not valid. It is further stated in the impugned memo dated 07.11.2016 (Annexure-O) that petitioner forwarded the application of Md. Habibur Rahman and thus, his MPO is liable to be stopped permanently under clause 18(1)(gha) of the Directives (inserted on 24.03.2013). Be it mentioned that the notice dated 07.11.2016 was issued pursuant to memo dated 19.10.2016 (Annexure-N) so far as it related to the petitioner. By this memo dated 19.10.2016 the Ministry Directed the respondent No. 3 to issue final show cause notice upon the petitioner.

21. The Directives in question came into effect on 04.02.2010, vide memo No.  dated 04.02.2010 issued by the Ministry of Education. Vide memo No.  dated 24.03.2013 the earlier Directives, 2010 was amended. Sub-clause (gha) was inserted in clause 18(1) on 24.03.2013. Clause 18(1) of the Directives, as it stands now, is quoted below:

22. There is nothing in the amended Directives that the newly inserted sub-clause (gha) will apply retrospectively. It is already noted that the appointment in the post of Assistant Teacher was made on 08.01.2011. The petitioner, being the head teacher of the school, was a member of the Appointment Board and as part of his job, he forwarded necessary documents of the selected candidate to the authority concerned. Under the 'un-amended clause 18(1), the petitioner's MPO could not be stopped for forwarding the irregular application of a candidate. In view of the decided cases, the respondent No. 3 committed illegality in applying the newly inserted clause 18(1)(gha) retrospectively to the case of the petitioner. Therefore, the impugned memo dated 07.11.2016 (Annexure-O) has been issued without any lawful authority. For the same reason, the memo dated 19.10.2016 (Annexure-N) issued by the Ministry of Education directing the respondent No. 3 to issue show cause notice upon the petitioner as to why his MPO should not be stopped temporarily has been issued without any lawful authority.

23. Mr. MMG Sarwar, the learned Assistant Attorney General, submits that instead of replying the show cause notice, the petitioner invoked the writ jurisdiction of this Court and hence, the writ petition is not maintainable. We do not accept the contention for two reasons. Firstly, the impugned show cause notice in itself is a nullity inasmuch as the respondent No. 3 had no authority to invoke clause 18(1)(gha) of the Directives 2010, (as amended on 24.03.2013) and thus, it stepped outside its jurisdiction in Anisminic sense (Anisminic Ltd. vs. Foreign Compensation Tribunal, [1969] 2 AC 147, 195). Secondly, prior to the impugned show cause notice the respondent No. 3 issued as many as three notices to the petitioner invoking clause 18(1)(gha) either to explain or to show cause regarding the same subject matter. The petitioner replied to those notices and explained his position. Thus, the impugned show cause notice, which is the fourth notice on the self-same subject matter, tantamounts to harassment.

24. It is stated in the supplementary affidavit filed by the petitioner that in spite of the order of stay passed by this Court on 29.11.2016, the respondent No. 3 stopped payment of the petitioner's salaries and other financial benefits from January 2017 to December 2018. The respondent No. 3 is legally bound to pay salaries and other financial benefits to the petitioner for that period.

25. In the result, the Rule is made absolute. The impugned memo dated 19.10.2016 (Annexure-N) so far as it relates to the petitioner and the memo dated 07.11.2016 (Annexure-O) are declared to have been issued without any lawful authority and are of no legal effect The respondents are directed to pay the salaries and other financial benefits to the petitioner for the period from January 2017 to December 2018 within 30 days from the date of receipt of this judgment.

Communicate the order to the respondents at once.