Judgement Details

Mohammad Tomijuddin vs. Govemment of Bangladesh and Others.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 8445 of 2010

Decided On: 15.02.2010

Appellants: Mohammad Tomijuddin Vs. Respondent: Govemment of Bangladesh and Ors.

Hon'ble Judges/Coram:
Syed Refaat Ahmed and Md. Ashraful Kamal, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Md. Safed Ali, Advocate

For Respondents/Defendant: Israt Jahan and Kashefa Hussain, A.A.Gs.

Subject: Civil Procedure

Mentioned IN

Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 102

JUDGMENT

Syed Refaat Ahmed, J.

1. In this Application under Article 102 of the constitution a Rule Nisi was issued calling upon the Respondent to show cause as to why they shall not be directed to include the name of the petitioner in the Monthly Pay Order (M.P.O) from the date of his joining Sathkhira P.N. Bohumukhi Secondary School and College, Sathkhira Sadar, Satkhira on 07.09.2006 and also to pay him the arrear M.P.O. amounting to Tk. 1,47,109.46 from 07.09.2006 to 31.05.2008 and/or such other or further order or orders passed as to this Court may seem fit and proper.

2. The petitioner comes before this Court four years into serving as Assistant Headmaster of Sathhira P.N. Bohumukhi Secondary School and College, Sathkhira Sadar, Sathkhira. Prior to serving in this institution the Petitioner served in D.B. United High School, Brahmarajpur, Sathkhira, bearing institution No. 61055111301 where he was enlisted for M.P.O. under Index No. 2068855. It is noted that pursuant to the Petitioner having filed on 07.09.2006 a petition before the D.B. United High School for an acceptance of his resignation from that school, the Headmaster of D.B. United High School issued two certificates dated 18.09.2006 comprising of a 'no objection' certificate and collectively attesting to the petitioner's resignation from the said school on 06.09.2006 and his untarnished record of long service therein. As a back-drop to these facts, it is submitted that on 06.09.2006 alone Md. Fazlur Rahman Shikari (Index No. 184666) retired from his post of Assistant Headmaster of Sathkhira P.N. School and College and the said post having thereby, fallen vacant, the petitioner was appointed as Assistant Headmaster on 07.09.2006 and as such as per provisions of Clause 15 of the    the Petitioner is entitled to get benefit of M.P.O. from his date of joining i.e. from 07.09.2006. It is also submitted that the Petitioner's entitlement arises further with regard to his appointment to the post of Assistant Headmaster falling within the confines of Clause 7 of the .

3. It is evident that Sathhira P.N. Bohumukhi Secondary School and College is recognized as one entitled to M.P.O. and that the teaching faculty/administration strength of this institution is a total of 11 (eleven) teachers comprising of 8 (eight) teachers, one Science teacher, one teacher for Agriculture and one teacher for Hindu religious studies. Such faculty strength, as submitted by the Petitioner, is as per the prescription of Clause 7 of the  securing to the institution on M.P.O entitlement and by extension, therefore, to the petitioner as well, effective from the date of the Petitioner's joining as Assistant Headmaster there, i.e., 07.09.2006. The fact of disallowance, however, of such entitlement from that date onwards and continuing up to 31.05.2008, giving rise to the Petitioner claim to arrears of Tk. 1,47,109,46/- has notably been the subject matter of petitions placed on behalf of the petitioner variously by the Respondent No. 4, Head Master of the said institution as well as the Respondent No. 3, District Education Officer, Sathkhira, before the Respondent No. 2, Director General, Secondary and Higher Education Directorate, but ostensibly to no avail, thereby, compelling the petitioner to plead his case before this Court. Indeed, the series of communications dated 01.10.2006, 02.04.2009, 20.04.2009, 25.07.2010, 17.08.2010 and 3009.2010, as found on record to be variously issued by the Respondent Nos. 3 and 4, highlight the merit of the Petitioner's claim before the Directorate as arises under the relevant law applied to the facts and circumstances of his case. Of note, in particular, are the contents of the letter dated 20.04.2009 addressed to the Respondent No. 2 Director General, by the District Education Officer and annexed as Annexure B-1 to this Application. This particular communication, reprehensive as it is of the other intimation/petitions as noted above, is additionally particularly revealing and fully illustrative, in this Court's view, of the merit of the Petitioner's claim under the law. It is on this ground that this communication merits reproduction below in its entirety:

4. The learned Advocate for the Petitioner Mr. Md. Safed Ali by reference to this Application in arguing for the sufficiency in law of the Petitioner's claim has at the outset drawn this Court attention to the provisions of Clause 7 of the   and by reference to which he has given a detailed breakdown of the kind and number of faculty staff employed on all material dates at the institution. Submitting that the legal prescription and sanction in this regard for a Secondary School as the Sathkhira P.N. Bohumukhi Secondary School and College is of the employment of eleven teachers or faculty staff comprising of the Headmaster, one Assistant Headmaster, one Assistant Teacher (Mathematics and General Science), three Assistant Teachers (Sociology), and one Assistant Teacher each for Science, Agriculture, Religion, Physical Exercise, and Computer, Mr. Ali asserts that as per the   there are a total of eleven teachers in this institution, including the Petitioner, making it equally evident that in the said institution there is a post of one Assistant Headmaster only, as is admitted and recognized by the Government, and the Petitioner legally occupying and functioning in this post is, therefore, legally entitled to be enlisted in the M.P.O. making the impugned action of the Respondent illegal. Also referring to Clause 15 of the  , Mr. Ali has also stressed upon the entitlement recognized to the Petitioner under the law upon satisfaction of all the preconditions specified in Clause 15 with regard to the nature and circumstances of his clattered from D.B. United High School, the obtaining of the "no objection' or release certificate from the said school and his joining in the present institution without undue delay by fulfilling all requirements and filling in the vacancy created by the departure of his predecessor in the already M.P.O. entitled post of Assistant Headmaster. Mr. Ali submits in this regard, that admittedly eleven teachers have been enlisted in the M.P.O. of whom Mr. Md. Fazlur Rahman Shikari, the previous Assistant Headmaster, retired on 6.9.2006 and, thereafter, upon observing all legal (realities the Petitioner has been appointed as Assistant Headmaster on 7.9.2006 in Mr. Shikari's place. Resultantly, the Petitioner is submitted to be within the numerical and substantive pattern of posts prescribed by law and is, therefore, legally entitled to the M.P.O.

5. In disputing the claim of the Petitioner in general, the Affidavit-in-Opposition and the Supplementary thereto filed variously on behalf of the Respondent Nos. 1 and 2 focus on the material dates the Petitioner "was out of pattern" within the while scheme of the number of persons entitled to M.P.O. pursuant to the . A consequential point asserted is that the question of granting arrears to the Petitioner does not arise in the facts and circumstances "since he was not entitled to any M.P.O. during the period he claimed". The prayer of the Respondent, therefore, is for this Rule to be discharged.

6. Proceeding on the above and upon a consideration of the submission made both by Mr. Ali and the learned Assistant Attorney General Ms. Kashefa Hussain, this Court finds on a prima facie entitlement of the Petitioner to claim M.P.O. in the facts and circumstances by application of Clause 15 of the   It is noted in this regard that the circumstances of the Petitioner's departure from D.B. United School and taking up employment subsequently in Sathikhira P.N. Buhumukhi Secondary School and College, as found explained in detail in the Petitioner's version of the case, have not been specifically addressed by the Respondent in their Affidavit filed before this Court. In other words, there is nothing in the Respondents' case that is tantamount to an assertion that the Clause 15 prescription have not been fulfilled in the instance of the Petitioner's move from one institution to the other. In that regard, it is deemed prudent to reproduce herein below the provision of Clause 15:

7. It is noted, that upon a clear reading of Clause 15 the manner of the Petitioner's departure from D.B. United College and his coming on board at Sathkhira P.N. Bohumukhi Secondary School and College fully entitles him as per Clause 15 to claim M.P.O. from his date of joining the latter institution by reason of his appointment therein not suffering from any disability in law in that regard.

8. It is noted further in this regard, that other than the general assertion of the Respondent against the Petitioner's entitlement arising on the material date of 07.09.2006 as above and his entitlement subsequently found to be accruing as of 01.06.2008, no explanation is found on record of the objective basis of the satisfaction of the Respondents in either instance of discontinuing M.P.O. and, thereafter, reviving it after a long interval. Insistence by this Court to probe further into the process by which the Petitioner's disentitlement was upheld and maintained for such period has led to certain communications dated 29.05.2007, 26.10.2008 and 02.01.2012, be brought on record by the respondent. The learned Assistant Attorney General Ms. Kashefa Hussain in bringing these on record appears not to have been favoured, however, by adequate instructions from the Respondents as to either the rationale or the legal context against which these may have been issued. That being the case, these three communications considered in isolation of such necessary factual and legal context appear wholly deficient in providing any insight into either the process through which such decisions were arrived at in adversely affecting the right and interest of the Petitioner or any consideration or application of the relevant law made to operate against the petitioner up until 01.06.2008. In this regard, the letter dated 26.10.2008 in particular is found to proceed on an unsubstantiated reading of the law as found in Clause 7 of the  in categorically claiming, without further enunciation or explanation, that as per the  the institution's M.P.O. entitlement runs only to the extent of ten faculty members and no further. Furthermore, the most recent letter dated 02.01.2012 as issued to the Assistant Director (Law) by the Assistant Director (Ka-4) of the Directorate, as merely rehashes the earlier unsubstantiated reading of the applicable law, is far more incriminating of the Respondent's abdication of responsibility both to the Petitioner and this Court in that it identifies an erstwhile, and now defunct, government agency being the  as the body that was squarely responsible in excising authority in this matter. The inability, thereafter, expressed in this communication to produce the Petitioner's case record is explained away in a somewhat cavalier fashion resultantly by attributing such failure to the dissolution of the said Bureau. A degree of callousness in this last letter becomes all the more worrisome as it did not deter the signatory of this letter, faced by the declared ostensible insurmountable difficulties in tracing the Petitioner's records, from, however, expressing the view with some conviction that the Petitioner definitely falls outside of the staffing pattern prescribed under the law. These documents, it is found, while not throwing light in any way on the legal basis for the deprivations suffered by the Petitioner, of their own, appears as representative of the devices hatched for an unfavorable application of the law by resorting to arbitrariness in a process that has been wholly opaque. It is the finding of this Court that these and other responses of the Respondents are marred not only by a glaring lack of adequate and satisfactory explanation as to the law applicable to the Petitioner's circumstances but also by the absence of any transparency and accountability in arriving at decisions affecting the right of a citizen as the Petitioner. It is deplorable that there has been a blatant violation of the Petitioner's right to receive adequate and meaningful information on decisions that were made to operate against him and to his prejudice for an unduly long period of time, thereby, depriving him effectively of the opportunity to earn a livelihood and to live in dignity as is an essential component of the right to life. It is in these circumstances that this Court finds itself fully inclined to intervene on the petitioner's behalf in a favourable fashion. Finding that the very disentitlement of the Petitioner to his M.P.O. as of 07.09.2006 and the continuance of such disentitlement up until 31.05.2008 has been arbitrary and irregular, this Court, hereby, directs the concerned Respondent's to ensure a payment to the Petitioner of the claimed arrears as per the Petitioner's M.P.O entitlement amounting to Tk. 1,47,109.46/- within a period of 4 (four) weeks from the date of receipt of the certified copy of this judgment and Order.

9. It is also this Court's finding that in these facts and circumstances the Respondents, in this regard, shall remain wholly disentitled to seek refuge in this regard under any provision of the  as may be interpreted as shielding them from meeting this obligation. It is found in this regard, that the discontinuance of the Petitioner's M.P.O. having been found to be illegal ab initio no authority now reposes in any of the Respondents to rely on the law and insist that the government is not responsible to meet such demand of payment of arrear salary as per the Petitioner's accrued M.P.O. entitlement.

10. In the result this Court finding merit in this Application and substance in the Rule Nisi issued, hereby, makes the Rule absolute with the directions above.

11. There is no order as to costs.

Md. Ashraful Kamal, J.

I agree.