Judgement Details

MPO Matter- Md. Mozammel Haque 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. 10108 of 2011

Decided On: 15.05.2014

Appellants: Md. Mozammel Haque and Ors. Vs. Respondent: The Government of the People's Republic of Bangladesh and Ors.

Hon'ble Judges/Coram:
Syed Refaat Ahmed and Md. Akram Hossain Chowdhury, JJ.

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

For Respondents/Defendant: Israt Jahan and Khairun Nessa, A.A.Gs.

Subject: Employment Laws

Mentioned IN

Acts/Rules/Orders:
Constitution Of The People's Republic Of Bangladesh - Article 102(2)(a)(i)

Citing Reference:

• Discussed:	6

JUDGMENT

Md. Akram Hossain Chowdhury, J.

1. On an application under article 102(2)(a)(i) of the Constitution this Rule Nisi was issued calling upon the respondents to show cause as to why they should not be directed to pay the government portion of salary of the petitioners as Assistant Professor from the date of their promotion as Assistant Professor on 28.6.2010 in compliance with the provision of the clause-11 of  and/or such pass other or further order of orders and/or such other or orders as to this Court may seem fit and proper.

2. The leading facts of the writ petition, in short, are that the petitioners having the required qualifications to be appointed as lecturer, have been duly selected by the properly constituted selection Board of the Azmatpur Adarsha School and College, Kaliganj, Gazipur and appointed them as Lecturer on 21.5.2000, accordingly they joined in the said college on 22.5.2000. Thereafter the petitioners were engaged in discharging their duties honestly, sincerely and with full satisfaction of the authority concerned and they are getting Monthly Payment Order (MPO) since May, 2001. The petitioners having completed their 8(eight) years satisfactory service as lecturer, being the required qualification to be promoted to the post of Assistant Professor, they were promoted by the Governing body of the college. Therefore the petitioners are entitled to get the government portion of salary as Assistant Professor as per provision of clause-11 of the  (to be called "Guideline-2010"). The governing body of the college by their meeting held on 28.06.2010 took a decision to promote the petitioners as Assistant Professor from the post of lecturer and also adopted a resolution to forward a proposal the government authority, respondent No. 2, to pay their government portion of salary as Assistant Professor vide resolution No. 2/2010 dated 28.6.2010 In compliance with the said resolution the principal of the Azmatpur Adarsha School and College on 03.08.2010 sent a letter to the respondent No. 2, Director General, Secondary ad Higher Secondary Education Directorate, Shikkha Bhaban, Dhaka, requesting him to take necessary steps for making payment of the government portion of salary of the petitioners Assistant Professor. The said letter was received vide docket No. 10848 dated 11.8.2010. Upon receiving the letter of the principal, the respondent No. 3, Assistant Director (College-3), Secondary and Higher Secondary Education Directorate, Shikkha Bhaban, Dhaka on 12.10.2010 issued a letter addressing the principal of the said college by imposing some objections to the extent of the petitioners' promotion to the post of Assistant Professor. Having received the said letter dated 12.10.2010 (Annexure-F) the principal of the College has sent several letters and representations explaining that no procedural fault or legal violation has been done by the college authority in promoting the petitioners as Assistant Professor and requested the respondent No. 2 to enable payment of the government portion of salary of the petitioners as Assistant Professor. The respondents without considering the petitioners' reasonable and lawful claims and giving no reply to that end remained silent. Later on 23.10.2011 the petitioners served a notice demanding justice to the respondents through their learned Advocate requesting them to the extent of making payment of the petitioners government portion of salary as Assistant Professor in compliance with the "Guideline-2010".

3. Having received no reply to the said notice, the petitioners were compelled to file this writ petition and obtained the instant rule.

4. Mr. Md. Humayun Kabir, the learned Advocate appearing on behalf of the petitioners submits that the Governing Body of the college is the lawful authority to consider the promotion of a lecturer to the post of Assistant Professor of the Non-Government College. Upon considering the petitioners' 8(eight) years satisfactory service as lecturers the Governing Body of the college, as per clause-11 of the Guideline-2010 vide a resolution dated 28.6.2010 promoted them to the post of Assistant Professor. Thus the petitioners are entitled to get their Scale and benefits as Assistant Professor. The respondents are the concerned government authority in order to taking steps in making payment of the government portion of salary of the petitioners in respect of the post they have been promoted to. Mr. Kabir further submits that the petitioners have been discharging their function and duty honestly, sincerely and with the full satisfaction of the college authority since the date of their joining in the college, and resultantly their name has been enlisted in the NPO list in Nay, 2001. The petitioners were selected and promoted to the post of Assistant Professor as they have completed their 8(eight) years satisfactory service as lecturer from the date of their enlistment in the MPO list as per clause-11 of the Guideline-2010. They have acquired the required qualification and experiences in the year-2009 as to be promoted to the post of Assistant Professor. As such the Governing Body of the college vide its resolution dated 28.06.2010 promoted them to the post of Assistant Professor but the respondents very unlawfully and arbitrarily by raising objections have not paid the government portion of salary of the petitioners as Assistant Professor without providing any cogent reason despite repeated representations.

5. Mr. Kabir by filing a supplementary affidavit also submits that there are 9 (nine) lecturers working in the Azmatpur Adarsha School and college, out of them the petitioners were promoted to the post of Assistant Professor as per ratio 5:2 under clause 11 (Chha) and other 4 (our) Lecturers' were also, given higher grade and scales under the same clause of the Guideline-2010 by the Governing Body vide its resolution dated 28.6.2010. The respondents approved the higher grade and scales of the other 4 (four) lecturers but in order to create embargo imposed objections affecting the petitioners, which was done unlawfully and arbitrarily. The petitioners though enlisted in the MPQ on the same day with the other lecturers, the index number of the petitioners have evidently been assigned prior to the others. Therefore, the seniority being countable from the date of enlistment of MPO, as per clause-13 of the Guideline-2010, does not create any impediment to he petitioners' right of promotion. Lastly Mr. Kabir, the learned Advocate for the petitioner submits since no irregularity or violation of any law has happened in the petitioners' promotion process, the prayer is for a direction upon the respondents to pay the petitioners' government portion of salary as Assistant Professor.

6. Mr. Kabir in support of his contention referred to a series of judgments of this Court that have underscored the authority of the Governing Body in adopting decision relating to the extent of promotion of a lecturer to the post of Assistant Professor. Those are the judgments in Md. Shahjahan Au and others Vs. Mr. Paritosh Chandra Roy and others, reported in 9BLT-374, and the unreported judgments in Md. Ershadul Islam Vs. Secretary, Ministry of Education, Government of Bangladesh and others, being Writ Petition No. 6619 of 2009, Mosammat Nurun Nahar Begum Vs. government of Bangladesh and others, being Writ Petition No. 1535 of 2011 and Md. Nazrul Islam Vs. Government of Bangladesh and others, being writ petition No. 9207 of 2008.

7. Ms. Khairun Nessa, the learned Assistant Attorney General (AAG) appearing on behalf of the respondent No. 2 by filing an affidavit in opposition submits that clause-11 (Chha) of the Guideline-2010 does not create any vested right in the petitioners to be promoted as Assistant Professor rather as per ratio 5:2 under the said clause any of the 2 (two) lecturers among the 7 (seven) lecturers, who have been enlisted in the MPO list on the same day i.e., on 01.5.2001 are entitled to be promoted to the post of Assistant Professor. The learned A.A.G. relying upon regulation-14 of the  (to be called "Regulation 2009") in respect of seniority submits that among the 7 (Seven) lecturers, one Najumanara Najneen, lecturer of sociology, having Index No. 830650 is senior according to the grading as she joined in the college on 15.7.1997. In that respect in counting seniority regulation-14 of Regulation-2009 provides thus:

8. In view of the above provision of the Regulation-2009 the seniority of a lecturer would be calculated from the date of joining with a view to determining entitlement to get the promotion and government portion of salary as Assistant Professor. The learned A.A.G., accordingly, submits that the respondent No. 3 thus rightly issued the letter dated 12.10.2010 raising objections as to the Governing Body of the college having not followed the rules on that regard. In support of her contention the learned A.A.G. has referred to two decisions, being those in Mohammad Iqbal Farooqi Irrigation & Powers Department, Eta, reported in 1978 PLC (CST) 25 and Muhammad Sharif Vs. The Secretary to the Government of the Punjab, Basic Democracies, Social Welfare and Local Government Department, Lahore and 3 others Vs. Secretary, reported in PLD 1973 (SC) 497.

9. A perusal of the above decisions referred by the learned Assistant Attorney General reveals that these relate to the civil service seniority rules of Punjab by which the service of the government servants has been governed. The matter and facts of the instant case, however, arise in connection with the service of the teachers who are rendering their service in a Non-Government college and their service is guided by their own service rules and regulations. So, the decisions referred by the learned A.A.G. are distinguishable with the subject matter of the instant case.

10. Furthermore, the regulation-14 in respect of counting seniority under the Regulation-2009 as referred by the learned Assistant Attorney general is also relating to the service of the officers and staff who are working under the "Non Government Teacher Enlistment and Certification (Officers and Staff) Service Authority." But the instant case is so far it relates to the promotion of the lecturers who are discharging their duties in a Non-Government College, whose promotion, seniority and MPO benefits are guided and governed specifically by the Guideline-2010. The petitioners not being any officer or staff as envisaged in Regulation-2009 their service, accordingly, should not come under the purview or ambit of Regulation-2009. So, the submissions in that regard, advanced by the learned, Assistant Attorney General do not support the respondents' case.

11. Heard the learned Advocates for both sides and perused the writ petition and affidavit in opposition along with the annexures. We have also gone through the judgments referred by the respective parties. It appears from Annexure-A and B of the writ petition that the petitioners were appointed as lecturers in the Azmatpur Adarsha School and College, Kaligonj, Gazipur on 21.5.2000 and they have joined in the college on 22.5.2000. The annexure-C MPO sheet shows that the petitioners were getting their government portion of salary, i.e., MPQ as lecturer from May, 2001 having their Index Nos. 830647 and 830649 respectively. It also appears from the annexure-D resolution of the Governing Body of the college that as per clause-11 (Chha) of the Guideline-2010 the Governing Body took a decision on 28.6.2010 and promoted the petitioners to the post of Assistant Professor as they completed their 8(Eight) years satisfactory service in college as Lecturer. Then in accordance with the decision of the Governing Body the principal of the college forwarded a letter dated 03.08.2010 (annexure-E) to the respondent No. 2 to take steps in compliance with the Guideline-2010 in makin payment of the petitioners' government portion of salary as they have been promoted to the post of Assistant Professor as per clause-11, (Chha) of the Guideline-2010. In reply to such letter the respondent No. 3 vide latter dated 12.10.2010 (annexure-F) raised some objections to justify in not making payment of the government portion of salary of the petitioners to the extent of their promoted post. The principal of the college then vice a letter dated 14.11.2010 (annexure-G) made a representation to the respondent No. 2, stating that there has been no illegality done in promoting the petitioners to the post of Assistant Professor and that Mrs. Anjumanara Najneen, Lecturer of Sociology, though being enlisted in the MPO list on the same day is not senior to the petitioners. It also appears from the record that a recommendation also forwarded to the respondent No. 2, by the Member of the Parliament of the concerned constituency requests the respondent No. 2 for making payment of the government portion of salary of the petitioners as Assistant Professor. But the respondents without paying any heed to the said representations further issued a letter dated 15.12.2011 (Annexure-J to the supplementary affidavit) in response to the notice for demanding justice served by the learned Advocate of the petitioner raising the same objections as earlier raised in the letter dated 12.10.2010 (annexure-F to the writ petition).

12. It is not disputed that the petitioners have been enlisted in the MPO list as lecturer in May 2001 and completed their 8 (eight) years satisfactory service as lecturer in the college and they are entitled to have the promotion to a higher post with higher scale and other benefits.

13. The authority concerned i.e., the Governing Body of the college took a decision as per clause-11 (Chha) of the Guideline-2010 and promoted them to the post of Assistant Professor. The principal of the college, in accordance with the decision, requested the respondents to make payment of the petitioners' government portion of salary to that extent. Against that backdrop, this Court finds that the respondents, being the authority concerned to the extent of making payment of the government portion of salary of the teachers who are serving in the Non-government School and Colleges, have to see whether the decision taken by the governing body has done in accordance with the Guideline-2010 or not. But in the instant case in response to the request letter of the principal (Annexure-E) the respondent No. 3 by his letter (Annexure-F) raised certain objections in respect of the petitioner No. 2,  and in respect of the petitioner No. 1, .

14. Apparent from the face of the record is the fact that the decision taken by the Governing Body (Annexure-D) was in accordance with clause-11 (chha) of the Guideline-2010 and no illegality seems to have been done by the Governing Body concerned in that regard. In this regard, this Court has had reference to sub clauses (Uma) and (Chha) of clause-11 of the Guideline-2010 for arriving at a proper decision. The said provisions run as follows:

15. Upon a perusal of the above provisions we find that since there were 9(Nine) MPO enlisted lecturers serving in the college, the Governing Body of the college as per clause-11 (Chha) of the Guideline-2010 i.e., as per the prescribed ratio 5:2, promoted the petitioners to the post of Assistant Professor as they have also satisfactorily completed more than 8(eight) years of their service as lecturer in the college and other 4(four) lecturers were also given higher grade and scales. It is, however, in deciding the inter se seniority there is indeed necessity of placement of the provisions of seniority as provided by clause-13 of the Guideline-2010 as lays down the requirement to count the seniority of the teacher and staff who are working in the Non-Government educational institutions. Clause 13 runs as follows:

16. In light of the above provision of determining seniority under the Guideline-2010, it appears from the record that the petitioner Nos. 1 & 2 and Anjumanara Najneen (in whose favour the objection was raised by respondent No. 3) were enlisted in the MPO list in May, 2001. Though they were enlisted in the MPO list on the same day but 'the index numbers of the petitioners reveal that they were enlisted prior to the said Anjumanra Najneen, as is evident from their MPO sheet (Annexure-C). The said MPO sheet reveals that the index number of petitioner No. 1, Md. Mozamrnel Haque is 830647, petitioner No. 2, Md. Osman Goni is 830649 and the index number of Anjumanara Naznin is 830650. Moreover, the said Anzuman Ara Nazneen has never challenged the decision of the Governing Body nor has she claimed to be an Assistant Professor. Rather, she is enjoying the higher grade and benefits given by the Governing Body without raising any objections. In such view of the facts, we do not have any hesitation to hold that the decision taken by the Governing Body of the college was in accordance with the Guideline-2010 and does not suffer from any illegality.

17. Given this Court's finding above, it is also this Court's view that the decisions as referred by the learned advocate for the petitioners are indeed applicable in the instant case and substantiate the view that the governing body is the absolute and sole authority to the extent of promotion of a teacher or lecturer to the higher post of a college. It is found that this was specifically held in the case of Md. Shahjahan Ali and others Vs. Paritosh Chandra Roy and others reported in 9 BLT-374. A similar view has also been reiterated in the Judgment passed by Madam Justice Nazmun Ara Sultana in writ petition No. 9207 of 2008. The other unreported two Judgments passed in writ petition No. 1535 of 2011 and writ petition No. 6619 of 2009 also support the petitioners' case as a whole.

18. Be that as it may, the MPO sheet (Annexure K & L to the supplementary affidavit) shows that there are as many as 9(Nine) lecturers serving in the college. Among them the petitioners having completed their 8 (eight) years satisfactory service as lecturers from May-2001, (the date of their enlistment in MPO), the authority concerned i.e., the Governing Body of the college aptly took a decision and promoted them to the post of Assistant Professor from the post of lecturer. Since the Governing Body has done no illegality in doing so, it is found that the petitioners, therefore, are wholly entitled to get their higher scale and benefits along with the government portion of salary as Assistant Professor.

19. In view of the above facts and circumstances and discussions made herein above we find merit in the rule and thus we are inclined to make the rule absolute.

20. In the result, the rule is made absolute without, however, any order as to costs. The respondents are directed to pay the government portion of salary with other ancillary benefits of the petitioners as Assistant Professor from the date of their promotion i.e. from 28.06.2010 within 30 (thirty) days from the date of receipt of this Judgment and order.

21. Communicate this Judgment and Order at once.

Syed Refaat Ahmed, J.

I agree.