Judgement Details

MPO Matter- Mohammad Ali and Others. vs. The Government of the People's Republic of Bangladesh and Others..

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 5386 of 2016

Decided On: 11.01.2018

Appellants: Mohammad Ali and Ors. Vs. Respondent: The Government of the People's Republic of Bangladesh and Ors.

Hon'ble Judges/Coram:
Gobinda Chandra Tagore and A.K.M. Shahidul Huq, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md. Humayun Kabir, Advocate

Subject: Employment Laws

Subject: Constitutional Law

Mentioned IN

Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 102(2), Constitution Of The People's Republic Of Bangladesh - Article 27, Constitution Of The People's Republic Of Bangladesh - Article 29, Constitution Of The People's Republic Of Bangladesh - Article 32; General Clauses Act, 1897 - Section 21

Disposition:
Rule Made Absolute

JUDGMENT

A.K.M. Shahidul Huq, J.

1. On an application under Article 102(2)(a)(i) of the Constitution of the people's Republic of Bangladesh made by the petitioner this Court on 10.05.2016 issued a Rule Nisi in the following terms:-

This Rule Nisi was issued calling upon the respondents to show cause as to why they should not be directed to enlist the name of the petitioners in the Monthly Pay Order (MPO) from the date of their joining as the Vice-Principal and the Lecturer of Hatkarai Degree College, Nandigram, Bogra, and/or pass such other or further order or orders as to this Court may seem fit and proper.

2. The short facts for disposal of the rule are that the petitioners are peace loving and law abiding citizen of country and they are the Vice-Principal & the Lecturer of Hatkarai Degree College, Nandigram, Bogra. The address of the parties as given in the cause title of this petition are respectively their correct addresses for the purpose of service of notice, summons and other allied matter upon them. Any replies, affidavit-in-opposition etc may kindly be served.

3. The Hatkarai College, Nandigram, Bogra was established in 1989 as Higher Secondary College and the said College was affiliated by the Boart of Intermediate and Secondary Education. Rajshahi as Higher Secondary College in 1991 for a period of 1 (one) year from 01.07.1990 to 30.06.1991 under memo no. 3/Col/Bog/79/(2nd)633 dated 26.11.1991 and subsequently the said order of recognition was extended time to time and lastly the said order of recognition was extended for a further period of 4 (four) years from 01.07.2013 to 30.06.2017 under memo no. 3/Col/Bog/79/(2nd)633 dated 19.01.2014.

4. On 28.11.1994 the Ministry of Education the Government of the People's of Bangladesh took a decision to enlist the name of the Hatkarai College, Nandigram Bogra and also took a decision to pay the Government portion of salary of the teachers and employees of the said College contained in memo no. 4/aG-3890/1062 dated 28.11.1994. The said letter dated 28.11.1994 (annexure-B), the name of the teachers and employees of the Hatkarai College, Nandigram, Bogra as the Higher Secondary Level were enlisted in the monthly pay order (MPO) from May, 1995 and since then they were enjoying the Governing portion of salary against their services till to date.

5. Subsequently, the Governing Body of the said Hatkarai College took a decision to upgrade the said College as Degree College and in compliance of the said decision taken by the Governing Body of the said Hatkarai College, the Principal of the said College submitted all necessary papers to the Registrar, the National University, Gazipur and on 26.11.2002 the said College got affiliation as Degree College by the National University, Gazipur for the academic year of 2002-2003 and the Inspector of College, National University, Gazipur (respondent no. 3) issued a letter to that effect contained in memo no.   and the said affiliation was renewed from time to time and lastly on 24.08.2014 the said affiliation was renewed for the academic year of 2014-2015, 2015-2016 and 2016-2017 contained in memo no.  After getting affiliation as Degree College from the National University, Gazipur from 2001 and since then the said College are admitting the students of Degree Level and the respondents have allowed the students of the degree level of the said College to go on all for the public examinations and while the said College was running and functioning as Higher Secondary College as well as Degree College. Under clause no. 7 of the     the Governing Body of the Hatkarai Degree College, Nandigram, Bogra took a decision to appoint the teachers and employees of Degree Level of the Hatkarai Degree College, Nandigram, Bogra. In compliance of the said decision taken by the Governing Body of the said College, the Principal of the said College published advertisement in the national dailies.

6. The petitioner no. 1 is eligible to be appointed as the Vice-Principal of the said Hatkarai Degree College, Nandigram Bogra under the provision of the    And the petitioner no. 2 is eligible to be appointed as the Lecturer Department of Accounting and they, having requisite experiences and educational qualifications, applied for the post of Vice-Principal and Lecturer of Hatkarai Degree College Nandigram, Bogra in response to the said advertisement.

7. Duly constituted "Selection Board" selected the petitioner no. 1 to be appointed for the Vice-Principal of the said College on 27.04.2004 and recommended him to be appointed as the Vice-Principal and in compliance of the said recommendation of the "Selection Board:, on 02.05.2004 the Governing Body of the said College took a decision to appoint the petitioner as the Vice-Principal of the said College and in pursuance of the said College issued an appointment letter to the petitioner on 02.05.2004 and in response to the said appointment letter the petitioner joined in the said Hatkarai Degree College, Nandigram, Bogra on 02.05.2004 as the Vice-Principal and since then he has been discharging his duties as the Vice-Principal without any objection from any quarter.

8. Duly constituted "Selection Board" selected the petitioner no. 2 to be appointed for the Lecturer of the said College and recommended him to be appointed as the Lecturer, Department of Accounting, and in compliance of the said recommendation of the "Selection Board", on 04.11.2001 the Governing Body of the said College took a decision of the Governing Body, the Principal of the said College issued an appointment letter to the petitioner on 04.11.2001 and in response to the said appointment letter the petitioner joined in the said Haticarai Degree College, Nandigram, Bogra on 04.11.2001 as the Lecturer and since then he has been discharging his duties as the Lecturer without any objection from any quarter.

9. Mr. Md. Humayun Kabir, the learned Advocate for the petitioner submits that the inaction of the respondents in enlisting the name of the petitioners in the monthly pay order (MPO) from the date of their joining is arbitrarily, discriminatory and capricious in nature and the same has been passed without considering the relevant Rules and Regulations and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay. On perusal of the MPO sheet of July, 2015 and September, 2015 (Annexure-G and H), it appears that the teachers and employees of the said Haticarai Degree College, Nandigram Bogra were receiving and enjoying the Government portion of salary from the Government through monthly pay order (MPO) as Degree Level under Clause no. 7 of the    and under clause no. 6.2(Kha) of the     but the respondents refused to enlist the name of the petitioners in the monthly pay order (MPO) on the ground that the said college is a Higher Secondary College, but the reason taken by the respondents is not correct and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay.

10. He next submits that having completed of all legal formalities before issuing appointment letter of the petitioners and after accepting the joining report of the petitioners by the proper authority, they have acquired a legal right to get their salaries and they are entitled to enforce their fundamental rights as guaranteed under Articles 27 and 29 of the Constitution of the People's Republic of Bangladesh in getting their salaries and other benefits and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay. When a teacher is appointed in the School/College after selection through all necessary formalities and joined his post and his joining report is accepted, he is legally entitled to get salary and other financial benefits from the Government which can not be denied to him and thus the petitioner is legally entitled to get his salary and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay.

11. He further submits that there is no irregularities in appointing the petitioners as the Vice-Principal and the Lecturers and the petitioners having fulfilled required educational qualifications and experiences, but the respondents without considering the relevant rules and documents passed the impugned order flagrantly violating the fundamental rights of the petitioner guaranteed by the Article 27 and 32 of the Constitution and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay.

12. He also submits that it is undisputed that the Haticarai College, Nandigram, Bogra is a Degree College recognized and affiliated by the National University, Gazipur and after completion of all legal formalities the petitioners have been appointed as the Vice-Principal and the Lecturer of the said College and under the provisions of law, justice and equity the petitioners are legally entitled to get the Government portion of salary against their services and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay.

13. He lastly submits that admittedly the day to day functioning and educational activities of the Degree Level of the said College in question has not been stopped for a single movement and the teachers and employees of the said College are enjoying the benefits of the degree level without raising any objection. Moreso, the respondents have allowed the students of the degree level of the said College to go on all for the public examinations and also allowed the staffs to carry on their respective functioning without raising any question and therefore there has been a legitimate expectation in the mind of the petitioners that the respondents would pay the Government portion of the salary and as such the respondents are required to be directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining without making any delay.

14. The learned Advocate for the petitioner in support of his contention has referred the cases of Government of Bangladesh represented by the Secretary, Ministry of Education and others..V.s.. A.K.M. Moyen Uddin, reported in 25 BLT (AD) page 269, He next refer the case of Mosammat Tahera Khatun and others..V.S.. Bangladesh, represented by the Secretary, Ministry of Education, Bangladesh Secretariat, Dhaka and others, reported in 5 CLR (HCD) page 326 He further refer the case of Mohammad Anwarul Islam and others..V.s.. Ministry of Education and others reported in 36 BLD page 189. He also refer the case of Sheikh Roushan Ali..Vs.. Board of Intermediate and Secondary Education, Jessore and others reported in 48 DLR page 128.

15. No one appears on behalf of the respondent to oppose the rule.

16. We have perused writ petition the annexures filed thereto. Heard the learned Advocate appearing on behalf of the petitioner considered the submissions as advanced by the learned Advocate in support of his contention also considered the citations as referred in support of his writ petition now let us examine how far the citation as referred by the learned Advocate in support of his contention are applicable in the instant writ petition.

17. In order to arrive at a proper finding it is very much pertinent to go through the citations as referred at the time of hearing by the learned Advocate for the petitioner in the case of Government of Bangladesh, represented by the Secretary, Ministry of Education and others..Vs.. A.K.M. Moyen Uddin reported in 25 BLT (AD) page 269, it is held that:-

"Having considered Annexure-1 to the writ petition, the High Court Division found that the Principal of the College submitted his explanation on 03.03.2012 furnishing relevant document as to the affiliation of the college under National University with degree (pass.) course. The High Court Division noted that despite the aforesaid fact, the Director General issued the impugned memo dated 30.06.2013 refusing enlistment of the respondent's name in the MPO scheme on the ground that the college did not have the MPO enlistment for degree level. The High Court Division came to finding that objection of MPO enlistment made by the order dated 30.06.2013 was no based on record and therefore, the respondent was not enlistment if the MPO list as Vice-Principal of the College. The High Court Division, however found that the respondent was not entitled to get arrear salary".

"The findings arrived at and the decision made by the High Court Division having based on proper appreciation of law and fact do not call for interference".

18. In the case of Mossammat Tahera Khatun and others..Vs.. Bangladesh, represented by the Secretary, Ministry of Education, Bangladesh Secretariat, Dhaka and others reported in 5 CLR page 326, held that:-

"Moreover, it appears from various letters that the college was firstly affiliated with the National University in the year 1997-1998 and the same is still continued and thus, the college is running as a Degree College. The National University is the concerned authority to rant affiliation to any Intermediate College as a Degree College with the National University and the National University granted the affiliation of the college with the direction to appoint the required number of teachers and other staffs in the college. Accordingly, the petitioners were appointed. Therefore, the respondents specially, the respondent Nos. 1-3 are under legal obligation to change the code number of the college from Intermediate College to Degree College inasmuch as the petitioners being appointed after following due process, they are also entitled to be enlisted in the MPO list and similarly, the respondents are required by law to grant the petitioners MPO".

"The respondents are directed to change the code number of the Bogra College from Intermediate College to Degree College and to include the names of the petitioners in the MPO list within 60 (sixty) days from the date of receipt of this judgment. However, the petitioners are not entitled to any arrears of salary".

19. In the case of Mohammad Anwarul Islam and others..Vs.. Ministry of Education and others reported in 36 BLD High Court Division page 189, it is held that:-

"From the above chart of staff pattern as per clause 6.2(kha) of the said Nirdeshika, 2010, we find that in the case of Intermediate Level College only one Lecturer in Bengali, one Lecturer in English, one Lecturer in History and on Lecturer in Geography would serve in the College. Again, as per the same Nirdeshika, 2010, in a degree level College two Lecturers in Bengali, two Lecturers in English, two Lecturers in every optional subject and one Vice Principal would serve in the College".

20. In the case of Sheikh Roushan Ali,..Vs.. Board of Intermediate and Secondary Education, Jessore and others reported in 48 DLR High Court Division page 128 held that:-

21. A plain reading of the proviso to Regulations, 1979 as quoted above shows that penalty in the form of dismissal from service cannot be imposed unless the proposal for such penalty is examined by the Appeal and Arbitration Committee and approved by the Board. The words, "unless the proposal for such penalty" occurring in the proviso to Regulation 12 of the Regulations, 1979 leave no room for doubt that before the order of dismissal is passed by the College authorities the proposal for such order of dismissal must be submitted to the Board for its approval and no order for dismissal can be passed unless the proposal is approved by the Board. There is no doubt that in the instant case the proposal for dismissing the petitioner was passed before its approval by the Board and, as such, the order of dismissal appears to us to have been passed in flagrant contravention of the proviso to Regulation 12 of the Regulations, 1979. It appears from the letter written by the Board to the Principal of the College concerned as at Annexure-D and Annexure-D(2) to the writ petition that the Board was also aware that the order of dismissal was illegal and void from the very beginning having been passed before the proposal for the order of dismissal was approved by the Board and accordingly, the Board asked the college authorities to reinstate the petitioner.

22. There is no doubt that the proviso to Regulation 12 of the Regulation, 1979 is a mandatory provision and does not contemplate post facto approval of an order of dismissal by the Board. The above proviso clearly provided that no order of dismissal of the petitioner could be passed by the respondent no. 3 before securing approval of the Board to pass the proposed order of dismissal. Even if it is conceded that the Board accorded post facto approval as appearing from the letter as at Annexure-F to the writ petition such post-facto approval could not save the impugned order of dismissal from illegality. It, therefore, appears that by according post-facto approval the Board did not act according to law but actual illegally.

23. It is true that section 21 of the General Clauses Act, 1897 empowers an authority to rescind an order which it is competent by any law, regulation, rules etc, to pass. But section 21 of the General Clauses Act, 1897 does not empower an authority to rescind a lawful order and substitute an illegal order for it, as the Board palpably did in the present case. The previous order of the Board whereby it disapproved of the order of dismissal of the petitioner for want of approval by it could not be rescinded by substituting an illegal post facto order approving the order of dismissal, because, Regulation 12 of the Regulations 1979 does not empower the Board to accord approval after the order of dismissal of a teacher has been passed and given effect to by the college authority.

24. On due and proper consideration of the decisions as referred by the learned Advocate in support of his case we find the aforesaid citations as referred by the learned Advocate for the petitioner are fully applicable in the facts and circumstances of the present case.

25. In view of the above we find merit in the rule.

26. Accordingly, the rule is made absolute, there will be no order as to cost. The respondents are hereby directed to enlist the name of the petitioners in the monthly pay order (MPO) from the date of their joining as the Vice-Principal and the Lecturer of Haticarai Degree College, Nandigram Bogra, within 1 (one) month from the date of receipt of a copy of this judgment positively.

27. The office is hereby directed to transmit a copy of this judgment to the concern authority at once for information and necessary action.