Judgement Details

MPO Matter- Syeda Nahrin Afroz and Others. vs. Secretary, Ministry of Education and Others.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition Nos. 6030 of 2004 and 3212 of 2005

Decided On: 04.02.2007

Appellants: Syeda Nahrin Afroz and Ors. Vs. Respondent: Secretary, Ministry of Education and Ors.

Hon'ble Judges/Coram:
Nazmun Ara Sultana and Farid Ahmed, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Mansurul Haque Chowdhury and Ashoke Kumar Paul, Advocates

Subject: Employment Laws

Mentioned IN

Citing Reference:

• Mentioned:	1

JUDGMENT

Nazmun Ara Sultana, J.

1. Writ Petition No. 6030 of 2004 and Writ Petition No. 3212 of 2005 have been heard analogously and are being disposed of by this single judgment.

2. Six teachers of Nahar Academy High School, Mirpur filed Writ Petition No. 6030 of 2004 against the Headmistress and Ex-Officio Secretary of the Nahar Academy High School Mirpur, Dhaka and some other persons including some Government officials. On the prayer of this writ petitioner Rule Nisi was issued on 31-10-2004 calling upon the respondents to show cause as to why Monthly Pay Order (MPO) School, September, 2004 Institution No. 2610021306 issued under the signature of respondent Nos. 3 and 4 (Annexure-G) approving the names of the 4(four) junior teachers in the Monthly Pay Order should not be declared to have been made without lawful authority and of no legal effect and why the respondents should not be directed to cancel the same being made pending inquiry over the matter and or such other or further order or orders passed as to this court may seem fit and proper.

3. During pendency of this Rule the same six petitioners of Writ Petition No. 6030 of 2004 filed Writ Petition No. 3212 of 2005 challenging an order for re-inquiry of the matter of earlier writ petition and on their prayer a Rule Nisi was issued calling upon the respondents to show case as to why the letter vide   issued under the signature of respondent No. 3 for re-inquiry (paragraph No. 15) should not be declared to have been issued without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this court may seem fit and proper.

4. The case of the writ petitioners, in short, is that they were appointed as Assistant Teachers of Nahar Academy High School, Mirpur on different dates during the period from 1-12-90 to 6-8-98 and that all of them had requisite qualifications for being appointed as teachers and since appointment they have been serving the school as Assistant Teachers with full satisfaction of the authorities concerned. That Nahar Academy High School, Mirpur was affiliated as a Junior High School in 1996 and till 7-6-2004 it was treated as a Junior High School of the area and it was affiliated as a Secondary High School on 8-6-2004 by the Government. That long before being affiliated as a Junior High School the petitioners were appointed as teachers against respective subjects of the school after complying with all legal formalities and since their appointment they have been enjoying all privileges and facilities including financial benefits as regular and permanent teachers of the school which includes provident fund facilities also. That the school being affiliated as secondary school by the Board of Secondary and Higher Secondary Education Board, Dhaka the Managing Committee of the school haying approached to the Government to include the school in the MPO Group extending financial support to the teachers, the respondent No. 7, without the knowledge of the teachers and behind the back of the petitioners, submitted a list of teachers in total disregard of seniority on her own whim and choice excluding the petitioners who are senior teachers of the school with long standing teaching experience. That coming to know about such furnishing of list of teachers the petitioners being aggrieved submitted an application to the respondent No. 3 praying for holding inquiry. That some guardian's representative member of the Managing Committee of the school also submitted an application dated 22-8-2004 addressing respondent No. 2 praying for inquiry over the allegation. That on 28-8-2004 also the petitioners jointly filed an application to the respondents with detailed descriptions how they have been aggrieved by the act of the respondent No. 7 with a prayer for legal redress in conformity with the Non-Government Education Institution Rules and also to stay the process of inclusion of new teachers in the MPO list in preference to the petitioners who are senior to those newly appointed teachers. That the petitioners also personally approached the respondent No. 2 on 5-9-2004 and apart from their written complaint they orally narrated the whole occurrence to him who on hearing of the complaint from the petitioners, assured that the proposed list should not be given effect without due inquiry and the case of the petitioners should be considered maintaining their seniority. That on hearing the petitioners the respondent No. 2 directed for inquiry over the allegation to be conducted by respondent No. 5 and for report. That on 17-10-2004 the petitioners filed an application addressing respondent No. 4 praying for permitting the petitioners to remain present during the inquiry and to place their grievances but the respondent No. 3 neither informed the petitioners asking for their presence before the inquiry officer nor any date was fixed for such inquiry and without waiting for inquiry report the respondent No. 3, most illegally in an arbitrary manner and in clear violation of principle of natural justice, included the teachers junior to the petitioners in the MPO list. That due to assurance given by the respondent No. 2 the petitioners continued their service with the hope of legal remedies but since nothing was found positive regarding holding of inquiry, the petitioners have come to know that ignoring the official note of respondent No. 2 the respondent Nos. 3 and 4 by accepting proposed list of respondent No. 7 prepared the MPO list of Nahar Academy High School and sent the same to Agrani Bank, Zonal Office, Mirpur to withdraw the salary of the Government part for the month of September, 2004 including those four teachers namely, respondent Nos. 8-11. That as soon as it came to the notice of the guardian representatives and teacher representative of the managing committee all the 4 guardian representatives out of total 9 Members of the Managing Committee, informed the respondent No. 5, the Chairman of the managing Committee by submitting an application on 28-10-2004 not to sign the bill prepared as per the impugned MPO till decision of the inquiry committee as formed by respondent No. 5 on 13-10-2004. But in total disregard of all those the respondent No. 5 has already approved the bill by signing himself. It has been submitted in the writ petition that all the petitioners have requisite qualifications to be the teacher of affiliated school including special training on respective subjects and have been serving for long time even since before joining of the respondent Nos. 8-11. That the dropping of the petitioners from the MPO list with co-lateral purpose in total disregard of all concerned rules and also breaking the seniority without assigning any reason thereto, is clear violation of fundamental rights of the petitioners and also against the principle of natural justice. That the impugned MPO list being made in clear breach of seniority list the same, if allowed to be given effect to, will cause serious injustice to the petitioners and, as such, the same is liable to be declared to have been made without lawful authority and is of no legal effect.

5. The respondent No. 7, Head Mistress of Nahar Academy High School and ex-Officio Secretary of the same school has contested the rules by filing an affidavit-in-opposition. The main case of the respondent No. 7 is that the petitioners were appointed as part-time Teachers of the school and they have been serving as part time teachers ever since their appointment. That the petitioners have concealed the facts about their rank and status in their writ petition and purposely contended that they were regular Assistant teachers of the school. That the appointment letters of the writ petitioners and also their joining letters, Annexure-A series, clearly show that the writ petitioners are not at all full-time Assistant Teachers rather they are part-time teachers only. That Nahar Academy High School, Mirpur was affiliated as Junior High School for a period of 3 years with effect from 1-1-1981 and that the affiliation was extended upto 31-12-1993 until its affiliation as Secondary High School. That on 1-1-1996 Nahar Academy High School was affiliated as Secondary High School and this affiliation was extended upto 31-12-2005. That as a matter of fact although the School was affiliated as a Secondary School by the Education Board the Government took a long time and raised the status of the school from Junior High School to Secondary High School on 1-6-2004 vide letter Memo No. Sha:4/1 G-1/2004/273 dated 1-6-2004 and directed the school authorities to submit names of the teachers eligible for inclusion in the MPO list by 10-6-2004 and hence respondent No. 7 had no other alternative but to submit the names of respondent Nos. 8-11 in compliance with the decision of the managing committee and order of the Government. That the writ petitioners were not appointed after complying with all legal formalities. That the provident fund benefit was given to the petitioners by the managing committee ex gratia on purely humanitarian ground, but this provident fund given to the part time teachers is not as per Government rules which provides for contributory 10% of basic salary by both the incumbent and the school. The writ petitioners as part time teachers were allowed per capita lump amount of Taka 50 only against equal contribution to be made by them. That such financial support given to a part time teachers on humanitarian ground does not create any legal claim to the status of a full time regular teacher. That all the six writ-petitioners submitted a written application to the Managing Committee praying for making them full time regular teachers on 20-12-1999. But the Managing Committee found that the rules did not permit to make them regular full time teacher and turned down their prayer and decided to keep them as part time teachers. That the festival bonus benefit was given to the writ petitioners by the authority ex gratia on purely religious and humanitarian ground but this festival bonus also given to petitioners are not similar to the ones applicable to permanent and regular teachers. That all the writ petitioners being part-time teachers serving in temporary post their appointments are terminable at any time as per condition of their appointment letters. So, the counting of their seniority with the full-time teachers is illegal. That the writ petitioners have no reason to feel aggrieved nor do the petitioners stand in need of relief under any law. That the petitioners being part-time teachers only are not eligible for inclusion in the MPO list. That only regular and full time teachers selected and appointed after following the Government rules, regulations and circulars are fit for inclusion in the MPO list. That the school authority appointed 4 regular teachers, the respondents Nos. 8-11, according to the rules made by the Ministry of Education and Education Board, Dhaka. It has also been stated in the affidavit-in-opposition that in the past when the school was a Junior High School 12 teachers, one clerk and one fourth class employee were included in the MPO list because in the matter of their appointment in their respective post the Government rules for appointment of teachers in Junior High School were strictly followed. But in the matter of appointment of the petitioners, as their posts were fully temporary and their appointments were part-time, their posts were not advertised in newspapers as required under rules nor they were recruited by the selection committee constituted as per Government rules. That they were appointed by the Managing Committee purely on the basis of exigency and the petitioners having been appointed as part-time teachers accepted the terms of their appointment and continued to serve as such. It has been submitted in the affidavit-in-opposition of the respondent No. 7 that in order to become a full-time teacher a part-time teacher has to go through the recruitment procedure under the rules framed by the Government without which the Government never includes part-time teacher's name in the MPO list. That in the past some 5 part time teachers namely. Monowara Begum, Syeda Kaniz Fatema, Md. Mujibur Rahman, Moulana Mosharraf Hossain Khan, Anjuman Ara and two former clerks namely, Abdul Aziz and Sobrab Hossain of Nahar Academy High School were appointed as full time teachers after they had fulfilled the conditions of the recruitment rules framed by the Government. That the allegation that the part time teachers were not given opportunity to become full time regular teacher is not correct. That amongst the petitioners themselves the petitioner No. 1 Syeda Nahrin Afroz and petitioner No. 4 Rehana Begum applied for appointment in the post of full time teachers in Their respective subjects in response to the advertisement published in the national daily namely, Daily Ittefaq dated 15-7-2000.-Of them, petitioner No. 1 Syeda Nahrin Afroz though filed application but did not appear at the written nor in the viva voce examinations conducted by the legally constituted selection committee. That petitioner No. 4 Rehana Begum applied for the full time post of the Bengali teacher and she stood first in the panel prepared by the legally constituted selection committee on 14-10-2000 but since the government imposed an embargo on appointing a person with one or more Third Class divisions in a full-time teacher's post, the managing committee was bound to keep her appointment postponed. That the petitioner No. 6 Salim Sarker also in response to the advertisement published in the Daily Ittefaq dated 30-3-2001 applied for the post of full time English teacher and he stood third in order of merit after appearing at the written and viva voce examinations conducted by a legally constituted selection committee. The candidate who stood first in the examination was appointed and that is why Salim Sarker could not be appointed as he stood third in order of merit. It has also been stated in the affidavit-in-opposition that although created full-time vacant posts of English and Bengali subjects were advertised in the Daily Ittefaq on 2-7-2002 and 7-3-2002 the petitioner No. 2 Mrs. Khaleda Begum, petitioner No. 3 Mrs. Taman Ara Juli and petitioner No. 5 Mousumi Sukla did not apply for any of the posts. So, there were no avenues opened to the appointing authority to recruit these part time teachers in full time posts. That there is no provision in the Rules of Ministry of Education and Non-Government Secondary School Rules and Regulations that provides a part time teacher to be treated as a regular teacher and to be included in the MPO list. According to the respondent No. 7, these writ petitions are not maintainable at all and, as such, the Rules are liable to be discharged with costs.

6. Respondent Nos. 1 and 2-Secretary, Ministry of Education and the Director General, Secondary and Higher Education Department respectively also have filed 2 separate-sets-of affidavits-in-opposition opposing the Rules.

7. We have heard the learned Advocate Mr. Mansurul Haque Chowdhury appearing for the petitioners and the learned Advocate Mr. Sheikh Habibul Alam appearing for the respondent No. 7 and also the learned Advocate Mr. SM Atiqur Rahman appearing for the respondent No. 2.

8. Mr. Mansurul Haque Chowdhury, the learned Advocate appearing for the petitioners, in course of his argument before us, has frankly conceded that all the six writ petitioners were initially appointed as part-time teachers of Nahar Academy High School on different dates during the period from 1-12-90 to 6-8-98. The appointment letters of these writ petitioners and also their joining letters have been submitted before us from the side of the contesting respondent No. 7 as Annexure A series. For better appreciation of the matter we like to reproduce one of these appointment letters in this judgment. The appointment letter of writ petitioner No. 1 Syeda Nahrin Afroz dated 20-11-90 is reproduced below:

From the reading of this appointment letter- the Annexure A, it is clear that the petitioners were appointed as part time teachers on purely temporary basis. In this very appointment letter it was clearly mentioned that the appointment was purely temporary and at any time, without assigning any reason, the appointment was terminable.

9. Mr. Mansurul Haque Chowdhury, the learned Advocate for the petitioners, conceding the terms and conditions of these appointment letters of the petitioners, has argued before us, that since appointment the writ petitioners have been serving in the school as Assistant Teachers with full satisfaction of the authority concerned and they also applied to the authority concerned for making them full time permanent teacher and the authority concerned though did not make any express order making the writ petitioners full-time teachers but the treatment of the authority concerned towards these writ petitioners indicates clearly that these writ petitioners for their long satisfactory service are now being treated as full time teachers of this school.-The learned Advocate has pointed out before us that in many places including the prospectus of this school, in resolutions of the Managing Committee and also in many other relevant places the school authority has mentioned the writ petitioners as Assistant Teachers and not as part-time teachers. The learned Advocate has contended that the mentioning of these writ petitioners in the prospectus of the school and also in other relevant papers as Assistant Teachers by the school authority strongly indicates that these writ petitioners are being treated as full time permanent teachers of the school by the authority concerned. But we cannot accept this argument of the learned Advocate for the writ petitioners, specially in view of the relevant rules namely, The Recognised Non-Government Secondary School Teachers (Board of Intermediate and Secondary Education, Dhaka) Terms and Conditions of Service Regulations, 1979. In this Regulations of 1979 in Regulation No. 2(k) it has been stated that "school" means a recognised Non-Government School Admittedly, Nahar Academy High School was initially recognised as Junior High School in the year 1981, However, in Regulation No. 3 of the Regulations of 1979 classification of teachers of a school has been stated thus:

"(1) There may be appointed in a school a Headmaster, an Assistant Headmaster, and such number of teachers to be designated as Senior Teacher, Assistant Teacher and Junior Teacher as the appointing authority may fix in this behalf in consultation with the Board or such authority as the Board may authorise.

(2) The Managing Committee may, in exceptional circumstances, and with the approval of the Board or such officer as it may authorise in this behalf, appoint part-time teachers but not Headmasters and Assistant Headmasters, on contract."

10. The above provision of the Regulation of 1979 classifying the teachers clearly shows that any part-time teacher may be Senior teacher. Assistant teacher and Junior teacher but not Headmaster and Assistant Headmaster. So, in the present case the mentioning of the writ petitioners as Assistant Teachers does not mean at all that they are no more part-time teachers. Rather, it clearly tells that these petitioners were appointed as part-time Assistant Teachers.

11. Next, the learned Advocate for the writ petitioners has argued that though these writ petitioners were initially given a lump amount as salary but subsequently, on their prayer, they were given full scale of salary like the other permanent full-time teachers and they are also being given festival allowances and provident fund benefit. The learned Advocate's contention is, that the giving of pay scale and other financial benefits including the provident fund to the petitioners strongly tells that these petitioners are being treated as full-time permanent teachers by the school authority.

12. In this regard, the reply of the learned Advocate for the respondent No. 7 is that the Managing Committee, considering the low salary of the part time teachers and considering their long service enhanced their salary and also allowed them festival allowance and a lump amount of Taka 50 only as provident fund benefit but these do not entitle the writ petitioners to be converted as permanent full-time teachers. The learned Advocate for the respondent No. 7 has shown us the relevant rules of the Government i.e. Regulation No. 25 of above mentioned Regulations of 1979, which provides for 10% contributory provident fund for the confirmed teachers of Recognised Non-Government Schools. The learned Advocate for the respondent No. 7 has also shown us the resolution taken by the Managing Committee of the School which allowed the writ petitioners a lump amount of Taka 50 only as provident fund benefit. The learned Advocate has argued that the financial supports were given to the part time teachers ex gratia and these were not their entitlement at all. We find it reasonable to accept this argument of the learned Advocate for the respondent No. 7, specially in view of the resolution No. 19 dated 14-10-2000 of the Managing Committee of the Nahar Academy High School, the Annexure-D series. These Annexures D and D1 show that on 20-12-99 these six writ petitioners submitted a written application to the Managing Committee of the School for making them full time regular teachers. The Managing Committee in its meeting dated 14-10-2000, after considering all aspects, turned down their prayer and decided to keep them as part time teachers. This fact shows that the writ petitioners themselves accepted to remain in service as part time teachers. In affidavit-in-opposition, the respondent No. 7 has categorically stated that in response to the advertisement in the national daily, namely Daily Ittefaq, dated 15-7-2000 the petitioner No. 1 Syeda Nahrin Afroz and petitioner No. 4 Miss Rehana Begum applied for appointment in the post of full time teachers but ultimately, the petitioner No. 1 did not appear in the examination and the petitioner No. 4 appeared before the selection committee and stood first in the panel prepared by that selection committee on 14-10-2000 but since there was a Government embargo on appointing a person having one or more 3rd class/division in full time teacher post she could not be appointed as full time teacher, and that in response to the advertisement published in the Daily Ittefaq on 30-3-2000 the petitioner No. 6 Salim Sarker applied for the post of full time English teacher and he stood 3rd in order of merit in the examination conducted by a legally constituted selection committee but the candidate who stood first in the examination was appointed by the Managing Committee. These facts stated in the affidavit-in-opposition of the respondent No. 7 have not been denied by the writ petitioners. So, these facts also tell strongly against the contention of the writ petitioners that they are being treated as full time permanent teachers of the school by the concerned authority. Rather, these facts tell that the writ petitioners are continuing in the service accepting themselves as part time teacher of the school till now.

13. Admittedly, all these six Writ Petitioners were appointed as part-time teachers. The Regulation No. 3 of the Regulations of 1979, as quoted above, shows that there are provisions for appointing part time teachers on contract when exigencies arise but no where in this Regulations or any other rule and regulation there is any provision for converting or absorbing a part time teacher as a full-time regular teacher. The learned Advocate for the writ petitioners though has contended that the treatment of the concerned authority towards this writ petitioner indicates that the writ petitioners are being treated as full-time permanent teachers but he could not show us any rule or regulation making provision for converting or absorbing any part-time teacher as a permanent regular teacher. Rather, it is admitted that the Government has promulgated specific recruitment rules for appointment of teachers of a Recognised Non-Government School by duly constituted selection committee after following all the formalities as required under these rules. According to this recruitment rules, a five-member selection committee including Government representative is to make selection in full time post by taking examination of the candidates. These writ petitioners, admittedly, were not appointed through such recruitment procedure by any selection committee. Some of the writ petitioners though subsequently, in response to advertisement made by the school authority, applied for the post of full time teachers but could not turn out successful. So, it is evident that the writ petitioners were appointed as part time teachers and till date they are continuing as part time teachers and, as such, the writ petitioners, being of different category i.e. part-time teachers, are not entitled to be included in the seniority list with other full-time regular teachers. They, as part-time teachers, are not entitled also to be included in the MPO list for getting government grant and allowances. The relevant Government circular in this regard is quoted below:

written by Dr. Fazlur Rahman, 12th Edition -supplied before us from both the contesting parties.

14. These six writ petitioners being, admittedly, appointed as part-time teachers without following the recruitment rules prescribed by the Government are not entitled to be included in the MPO list in view of the above quoted circular made by the Government.

15. At the time of argument before us Mr. Mansurul Haque Chowdhury, the learned Advocate appearing for the writ petitioners, has frankly admitted that he has no allegation against the appointment of respondent Nos. 8-11 as full-time teachers. The learned Advocate has contended that these writ petitioners being treated as full time regular teachers since before the appointment of these respondent Nos. 8-11 are entitled to be enlisted in the MPO list before these newly appointed respondents 8-11. But we have already found that these writ petitioners are still continuing as part time teachers and they have not been absorbed or converted as permanent teachers.

16. By filing a supplementary affidavit the writ petitioners have submitted further, that the writ petitioner No. 4 has obtained a certificate (Annexure-Z) for inclusion in the MPO list on priority basis. We have examined this Annexure-Z. This Annexure-Z is not at all a certificate for inclusion in the MPO list. This certificate says only that this petitioner Moushumi Sukla is eligible for applying for being appointed as an Assistant Teacher.

17. In supplementary affidavit filed on 17-1-2007 the respondent No. 7 has stated further that the Banbeis   an organ of the Government, holds regular survey of all Non-Government Secondary Schools of the country and details of all schools of the country including the names, designations and other particulars of all teachers are recorded in a central computer of the office of the same government organisation, the Ministry of Education as well as in the office of the Director General, Secondary and Higher Education, and each school is supplied with a CD containing the details of the school. That a printed copy of the Nahar Academy High School survey report made in the year 2005 and recorded in the CD and supplied to the school by the Government shows that all these six writ petitioners have been mentioned as part-time teachers in that survey report. The printed copy of this CD report has been annexed as Annexure-J to the supplementary affidavit-in-opposition filed by the respondent No. 7. The learned Advocate for the respondent No. 7 has argued that this Annexure-J also is a strong proof of the petitioner's being part time teachers of the Nahar Academy High School.

18. Mr. Mansurul Haque Chowdhury, the learned Advocate appearing for the writ petitioners, has cited several decisions of this court in support of his argument that by virtue of rendering long service with full satisfaction of the concerned authority the writ petitioners are entitled to be converted as full-time teachers and they are also being treated as full-time teachers. We have gone through these decisions cited by Mansurul Haque Chowdhury reported in LEX/BDHC/0088/1990 : 1990 BLD 381 : 42 DLR 533, 2002 BLD 143 : 54 DLR 602 and 52 DLR 308. But we do not find any of these decisions applicable in the present facts and circumstances of this case.

19. However, from the above discussion it is evident that these six writ petitioners were admittedly appointed as part-time teaches only and till date they are continuing as part time teachers. The relevant government circular as quoted above shows that a part time teacher is not entitled to be included in the MPO list for getting Government grant and other allowances. The MPO list which has been impugned in the Writ Petition No. 6030 of 2004 by the writ petitioners includes the names of respondent Nos. 8-11. These respondent Nos. 8-11 admittedly, have been appointed by the competent authority following the prescribed recruitment rules. The writ petitioners did not challenge the appointment of these respondents as full-time teachers before this court. There being no other permanent teacher senior to the respondent Nos. 8-11 the Managing Committee found these 4 teachers fit for being included in the MPO list and accordingly, as per decision of the Managing Committee, the respondent No. 7 sent their names to be included in the MPO list. We find no illegality in this impugned MPO list.

20. Evidently, the Rule issued in Writ Petition No. 6030 of 2004 as well as the Rule issued in Writ Petition No. 3212 of 2005 calling in question an order for further inquiry as to the allegations made against the impugned MPO list are liable to be discharged.

21. In the result, both the Rules are discharged without any order as to costs.

The stay orders granted earlier in both the writ petitions stand vacated.