Judgement Details

MPO Matter- Government of Bangladesh and Others. vs. Md. Nazrul Islam and Others.

IN THE SUPREME COURT OF BANGLADESH (APPELLATE DIVISION)

Civil Petition for Leave to Appeal No. 3584 of 2018

Decided On: 15.07.2019

Appellants: Government of Bangladesh and Ors. Vs. Respondent: Md. Nazrul Islam and Ors.

Hon'ble Judges/Coram:
Hasan Foez Siddique, Zinat Ara and Md. Nuruzzaman, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Samarendra Nath Biswas, Deputy Attorney General instructed by Haridas Paul, Advocate-on-Record

Subject: Employment Laws

Mentioned IN

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

Citing Reference:

• Discussed:	3

JUDGMENT

Md. Nuruzzaman, J.

1. Delay of 230 (Two hundred thirty) days in filing of the Civil Petition for Leave to Appeal No. 17675 of 2017 is hereby condoned.

2. This Civil Petition for Leave to Appeal has been preferred against the judgment and order dated 25.01.2018 passed by the High Court Division in Writ Petition No. 17675 of 2017 disposing the Rule Nisi and thereby directing the writ respondents to release the Government portion of salary (M.P.O.) of the writ petitioners with arrear and other service benefit from the date of joining, if any, within 1(one) month on receipt of the judgment and order without any fail.

3. The facts leading to filing of this Civil Petition for Leave to Appeal, in short, are that, the present respondents herein as writ petitioners filed Writ Petition No. 17675 of 2017 before the High Court Division seeking direction upon the writ respondents/authorities to release the Monthly Payment Order (in short M.P.O.) of the writ petitioners with arrear and other service benefit from the date of joining stating that after completion of all the requirements, the writ petitioner No. 1-Md. Nazrul Islam was appointed as Lecturer of Bengali on 08.10.2006 and he joined his post on 10.10.2006; the writ petitioner No. 2-Naima Fedausy was appointed as Lecturer of English on 31.01.2008 and she joined her post on 31.01.2008; the writ petitioner, No. 3-Abu Jafur Md. Rafikullah was appointed as Lecturer of Islamic Studies on 08.10.2006 and he joined his post on 10.10.2006; the writ petitioner No. 4-Md. Salim Khan was appointed as lecturer of Islamic History & Culture on 08.10.2006 and he joined his post on 10.10.2006; the writ petitioner No. 5-Mahafuja Sultana was appointed as Lecturer of Social Welfare/works on 30.12.2014 and she joined her post on 01.01.2015; the writ petitioner No. 6-Md. Monzur Alam was appointed as Lecturer of Political Science on 10.08.2015 and he joined his post on 11.08.2015; the writ petitioner No. 7-Mohammad Kamal Hossain appointed as Lecturer of Economics on 10.08.2015 and he joined his post on 11.08.2015; the writ petitioner No. 8-Nadira Sultana was appointed as lecturer of Philosophy on 10.08.2015 and she joined her post on 11.08.2015; the writ petitioner No. 9-Md. Abdus Salam Bepari was appointed as 4th Class employee on 08.10.2006 and he joined his post on 10.10.2006; the writ petitioner No. 10-Md. Alamgir was appointed as 4th Class employee on 08.10.2006 and he joined his post on 10.10.2006 and the writ petitioner No. 11-Md. Chunnu Rari was appointed as 4th class employee on 08.10.2006 and he joined his post on 10.10.2006. Since their joining in the Engineer Faruk Talukder Mohila Degree College, Bhouphal, Patuakhali they have been working and discharging their duties full satisfaction of the authority concerned in the said college till today; that the Principal of the concerned college sent a proposal to the writ respondent No. 2, that is, the Director General, Directorate of Secondary and Higher Secondary Education, Dhaka requesting him to grant their Government portion of salary with necessary papers but the enlistment of the writ petitioners' name in the Monthly Pay Order (M.P.O.) has not yet been approved by the concerned authority. But the writ respondent No. 2 has already allowed the Monthly Pay Order (M.P.O.) of other lecturers and staffs of the said college. Under the aforesaid facts and circumstances, the writ petitioners served a legal notice upon the writ respondents seeking redress but in vain. Hence, the writ petitioners, finding no other alternative efficacious remedy, filed the instant writ petition before the High Court Division and obtained the Rule Nisi.

4. The writ respondents did not contest the Rule Nisi by filing any affidavit-in-opposition.

5. In due course, after hearing the writ petitioners and considering the connected papers on record, a Division Bench of the High Court Division disposed of the Rule Nisi by the impugned judgment and order dated 25.01.2018.

6. Feeling aggrieved, by the judgment and order dated 25.01.2018 passed in Writ Petition No. 17675 of 2017 the Government and others-writ respondents as petitioners herein filed the instant civil Petition for leave to appeal.

7. Mr. Samarendra Nath Biswas, the learned Deputy Attorney General appearing on behalf of the leave-petitioners submits that the High Court Division failed to apply its judicial mind in passing the impugned judgment and order and thereby exceeded its jurisdiction in directing to includes the name of the writ petitioners in the Monthly Payment Order because the appointment of the writ petitioners have been done without any approval from the concerned authority as well as the writ petitioners are teachers and staffs beyond the pattern of M.P.O. of the said College. The Engineer Faruk Talukder Mohila Degree College, Bhouphal, Patuakhali have only M.P.O. enlistment upto the higher secondary level, that is, the Intermediate level and not upto degree level. According to provision of law of Jonobal Kathamo of the Higher Secondary level college, there would be only one teacher in each subject. The College has already filled up the M.P.O. for one teacher in each subject in the Intermediate level. Hence, there is no scope to enlist them in the M.P.O. list as teachers of degree level which are beyond the pattern of college, and as such, the impugned judgment and order passed by the High Court Division is liable to be set aside. He further submits that the financial sanction of Government is dependent upon the policy mater of the Government for which no writ petition is maintainable in the present form challenging the policy of the Government and, as such, the impugned judgment and order passed by the High Court Division is liable to be set aside.

8. We have considered the submissions of the learned Deputy Attorney General for the leave petitioners. Perused the impugned judgment and order of the High Court Division and connected papers on record.

9. The case of the writ petitioners is that they are entitled to have M.P.O. as they have already completed all the formalities and criteria to have the same. They further claimed that although other teachers have the M.P.O. of the same College but their case is not considered by the concerned authority. They served the legal notice but in vain. Hence, they filed the writ petition for redress.

10. The question is whether the writ petitioners have any legal right to have the M.P.O. as teachers of the said College and they are legally entitled to invoke the jurisdiction of writ of Mandamus for direction upon the writ respondents to include their names in the M.P.O. list of the College.

11. In Abdur Rahman Vs. Bangladesh 10 BLC (AD) 179 held that "Mandamus may issue where there is a violation of a legal right or violation of a legal duty.

12. Earlier, this Division, in the case of Government Vs. K.M. Ekbal Hossen and others in Civil Petition for Leave to Appeal No. 3882 of 2018, has observed:

"The legislature, executive and judiciary have to functions with their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. Function of democracy depends upon the strength of independency of State organs. Legislature and executive have the powers maintenance, distribution and control of finance of the State. Judiciary has the power to examine and to ensure that aforesaid two organs of the State functionaries have been working within their constitutional limits and in accordance with law. The constitution does not permit the Court to direct or advice the executive in the matter of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. Judiciary also must guard against encroaching the limitations. The scope of Judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or is violative of the fundamental rights of the citizens or is opposed to the provisions of the Constitution. It is the executive and legislature who are entitled to frame policies and take such administrative decision as they think necessary in the public interest. The Court should not ordinarily interfere with policy decisions, unless clearly illegal or unconstitutional".

13. This Division same view has expressed in the case of Government represented by the Secretary, Ministry of Education and others Vs. Md. Saidur Rahman in Civil Petition for Leave Appeal No. 2584 of 2018 and further has held that-

"Here, in this case, the High Court Division in fact, passed the impugned order to compel the executive to pay Government portion of salaries inasmuch as the Government did decide as yet to pay salaries to them or even did not assure them that the Government would pay the same. In absence of the statutory obligation, the High Court Division under Article 102 of the Constitution is not justified in issuing mandamus for payment of salary since a mandamus cannot lie in the absence of a legal right based on the existence of statutory duty. The mere fact that recognition and registration have been granted to an institutions or, for that matter, for conducting new course or subject would not give rise to a presumption of a financial sanction. A financial liability cannot be foisted on the Government to reimburse the salary payable to the teachers and staffs of the private colleges on the basis of such presumption. No mandamus can issue for payment of salary by the Government in the absence of the prior sanction of the Government".

"According to "Dicey", Judges are not allowed to decide a case on the basis of whatever they consider just and fair. They are constrained by definite principles of law and by binding precedent".

14. In the case in hand the petitioners did not allege that the writ respondents have violated any legal right of them. The granting of M.P.O. is the policy decision of the Government. Therefore, the petitioners could not claim the same as of right. This Division is of the view that teachers and staffs of the Non-Government School and College could not claim the M.P.O. as a matter of right and as such, direction could not be given unless infringement of legal right or violation of law.

15. In view of the foregoing discussions and authorities, we are of the considered view that the instant writ petition is not maintainable. We find merit in the petition, however, we are not inclined to grant leave, rather, dispose of the instant Civil Petition for Leave to Appeal as the writ petition was not maintainable.

16. Accordingly, this petition is disposed of. The judgment and order of the High Court Division is set aside.