Judgement Details

MPO Matter- Tahera Khatun and Others. vs. Bangladesh and Others.

IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)

Writ Petition No. 5521 of 2014

Decided On: 12.12.2016

Appellants: Tahera Khatun and Ors. Vs. Respondent: Bangladesh and Ors.

Hon'ble Judges/Coram:
Shamim Hasnain and Gobinda Chandra Tagore, JJ.

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

Subject: Employment Laws

Mentioned IN

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

JUDGMENT

Gobinda Chandra Tagore, J.

1. On an application under Article 102(2)(a)(i) of the Constitution of the People's Republic of Bangladesh, the Rule Nisi was issued in the following terms:

2. Let a Rule Nisi be issued calling upon the respondent Nos. 1-5 to show cause as to why they shall not be directed to change the College Code of Degree level of Bogra College, Bogra and to include the name of the petitioners in the Monthly Pay Order and also to pay the government portion of their salary from date of their joining in Bogra College, Bogra and or why such other of further order or orders passed, as to this court may seem fit and proper, shall not be passed.

3. Shortly stated the relevant facts necessary for disposal of this Rule are as follows:

4. Bogra College, Gabtali Road, Bogra was earlier an Intermediate College. Subsequently, by order issued vide Memo No.  dated 12.11.1997, Annexure-K issued by the Inspector of Colleges, National University the college was affiliated with the National University renewed the earlier affiliation up to 2016-2017 with a direction to appoint at least three competent teachers for each subject. Petitioner Nos. 1 and 2 were appointed Lecturer for the subject of Philosophy and Economics respectively and petitioner No. 3 was appointed Assistant Librarian of the College as evident from Annexure-A series and B series. Accordingly, petitioner No. 1 joined the college on 07.08.2011. Accordingly, the Principal of the college forwarded the required documents to the Director General of the Directorate of Secondary and Higher Education vide his Memo dated 02.12.2006 for enlistment of petitioner Nos. 1 and 2 in the MPO list and similarly, the Principal also forwarded the application of petitioner No. 3 with the relevant documents to the said Director General vide his Memo dated 10.11.2011. But those prayers for enlistment in the MPO have yet not been considered as the code number of the college from Intermediate College to Degree College has yet not been changed although the Principal of the College on several dates on 05.02.2007, 17.05.2009, 07.03.2009, 04.07.2009 and 29.05.2010 applied for changing the code number of the College. In the meantime, the Ministry of Education vide Memo dated 10.08.2010 directed the Principal of the College to apply for changing the Code number of the College to the Director General of the Directorate of Secondary and Higher Education. Accordingly, the Principal of the college vide his Memo dated 28.08.2010 applied to the said Director General. But their prayer was not considered. Subsequently, the Principal of the College again on 144.07.2011 applied to the Deputy Director (College-2) of the said Directorate of Secondary and Higher Education for changing the code number. Then the Principal of the college also applied to the Secretary of the Ministry of Education vide his Memo dated 15.08.2012 and 15.04.2012 but all the said prayers resulted in vain. Accordingly, the petitioner could not be enlisted in the MPO list. Thus, the petitioners having no other alternative and efficacious remedy filed the instant Writ Petition and obtained the Rule.

5. Respondent No. 3, Director General, Directorate of Secondary and Higher Secondary Education, Dhaka contested the Rule by filing an Affidavit-in-Opposition contending, inter alia, that the policy makers of the Government to or not to change the code number of any College of Intermediate to Degree College. Accordingly, the matter is not justifiable under the writ jurisdiction and hence, the Rule is liable to be discharged.

6. Having placed the Writ Petition, Mr. Md. Humayun Kabir, learned Advocate for the petitioners submits that since the college was affiliated with the National University as a Degree College (pass) and the petitioners were appointed Lectures and Assistant Librarian within the teacher and staff pattern sanctioned for Degree College, they are entitled to be enlisted in the MPO list.

7. Then the learned Advocate for the petitioners submits that since the National University affiliated the college as a Degree College, the respondents are legally bound to pay their salary otherwise, it will be receiving a service without salary, which is nothing but forced labour and the same is prohibited by our Constitution and hence, the Rule should be made absolute.

8. On the contrary, Mr. Md. Eunus Ali, learned Assistant Attorney General appearing for the respondent No. 3 submits that since it is the policy decision of the Government to or not to change the code number of any College Intermediate to Degree College, the matter is not justifiable under the writ jurisdiction and hence, the Rule is liable to be discharged.

9. We have perused the Writ Petition along with the annexure thereto and the Affidavit-in-Opposition and heard the learned Advocate for the petitioners as well as the learned Assistant Attorney General for the respondent No. 3.

10. There is not dispute that Bogra College was firstly affiliated with the National University for the year 1997-1998 and then up to 2017 and the National University granted the affiliation with a direction to appoint the required number of teachers as well as other staff of the College. Pursuant to direction of the National University, the college authority appointed the petitioner Nos. 1 and 2 as Lecturer for the subject of Philosophy and Economical respectively and petitioner No. 3 was appointed as Assistant Librarian of the college. There was no irregularity or illegality in the appointment process of the petitioners and thus, there is no allegation that the petitioners are disqualified to be appointed against their respective post.

11. It also appears from Writ Petition No. 8376 of 2013 that earlier two Lectures appointed for the Degree course of the college were regularly granted MPO, but A.K.M. Moyen Uddin, the petitioners therein was not granted MPO and challenging the impugned order therein, he filed the Writ Petition No. 8376 of 2013 and a Division Bench of this Court by the judgment and order dated 07.09.2014 made the Rule absolute therein. Against the judgment and order passed in the Writ Petition No. 8376 of 2013, the respondents filed Civil Petition for Leave to Appeal No. 2933 of 2014 and the Appellate Division by the judgment and order dated 14.05.2015 dismissed the Civil Petition for Leave to Appeal and thereby the judgment and order passed by the High Court Division was upheld. After the said judgment and order passed both in Writ Petition No. 8376 of 2013, and Civil Petition for Leave to Appeal No. 2933 of 2014, there is no legal scope to say that the college has yet not been upgraded to a Degree College.

12. 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 grant 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.

13. In such view of the matter, we find merit in the Rule.

14. Accordingly, the Rule is made absolute.

15. 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 salary¹.

16. There would be no order as to costs.

Shamim Hasnain, J.

I agree.