IN THE SUPREME COURT OF BANGLADESH (HIGH COURT DIVISION)
Writ Petition No. 10444 of 2006
Judgment On: 02.02.2009
Hon'ble Judges/Coram:
A.F.M. Abdur Rahman and S.M. Emdadul Hoque, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Md. Abdus Salam Mondal, Advocate
For Respondents/Defendant: Md. Iqbal Hossain, A.A.G.
Subject: Civil Procedure
Case Note:
Service - Appointment - Section 3(b) of The Primary Schools (Taking Over) act 1974 - Petition filed for direction to Respondents to appoint Petitioners as teachers in Government Primary Schools - Whether Petitioners entitled for appointment - Held, Section 3(b) of act provided that all teachers of Primary school should become employees of Government and should hold their service under Government on such terms and conditions as Government determined - Petitioner admittedly was functioning teacher of Primary school turned into a government servant as government Primary school teacher - Therefore Petitioners were eligible for appointment in government Primary school as they were taken over through provision of law - Non action as on part of government has prejudice Petitioner - It has appeared to discriminatory attitude on part of government as so many private Primary school teachers were allowed to be appointed and function as government Primary school teachers excepting Petitioners - Respondents were directed to appoint Petitioners as government Primary school teachers in government Primary school - Rule made absolute. [9], [10],[11]
JUDGMENT
A.F.M. Abdur Rahman, J.
1. This Rule Nisi, issued on 08.11.2006, has called upon the respondents to show cause as to why the respondents should not be directed to absorb/appoint the petitioners as teachers in Government Primary Schools under Upazila Mithapukur/Sundargaon in the district of Rangpur/Gaibandha respectively and as to why the impugned order dated 05.7.2000 passed by the Respondent No. 2 and issued by the Respondent No. 3 refusing to absorb the petitioners as Teachers of Government Primary Schools (Annexure-W) should not be declared to have been issued without lawful authority and is of no legal effect and/or to pass such other or further or orders as to this Court may seem fit and proper. It has been asserted in the writ petition that Writ petitioners were the Primary school teachers functioning in different Primary school within the District Rangpur and Gaibandha prior to acquisition of the Primary school of the country as government Primary school. Later the government issued circular under Memo No. SVII/256-Edn wherein the government expressed their decision to acquired all the Primary schools of the country along with its teachers and staffs wherein the government has decided to take four of the teachers of the said private Primary school as government servant Later the government further promulgated Ordinance No. XXII of 1973 regarding the acquisition of the Primary schools which was later made an act of Parliament being act No. VII of 1974 wherein the provision of law has provided for acquiring of the Primary schools and all its assets and property including lands, building and fund and all other right and interest in or arising out of such property and all records and other documents of whatever nature, relating thereto. By the said act the petitioners became the government servant and accordingly the government treated all the teachers of the acquired Primary schools of the country as government servant. But surprisingly the petitioners were not treated as the government servant and they were not allowed to function as the Primary school teacher as government servant. Thereafter the petitioners communicated with the government since long at difference level of the government functionaries who admitted that the petitioners are eligible for functioning as Primary school teachers as government servant, but clue to dilatory tactics on behalf of the government functionaries, the petitioners were not a allowed to function as government Primary school teachers. Having failed to get any satisfactory result from the government the petitioner upon serving notice demanding justice obtained this rule.
2. The learned Assistant Attorney General Mr. Md. Iqbal Hossain entered appearance on behalf of the Government, but although he did not prefer any affidavit-in-opposition yet opposed the rule orally.
3. At the time of hearing of the Rule the learned Advocate Mr. Abdus Salam Mondal appeared on behalf of the petitioners while the learned Assistant Attorney General represented the government.
4. The learned Advocate Mr. Md. Abdus Salam Mondal while supported the rule has taken this court through this annexures appended to the writ petition and indicated that by the provision of the Primary school (taking over) act 1974 (Act No. VIII of 1974) the petitioners became the government servant as government Primary School Teachers since all the Primary school teachers functioning as private Primary school were taken over by the government under the provision, firstly through a circular dated 06.7.1973 and later through the Ordinance No. XXII of 1973 and further through the act No. 8 of 1974 and as such the government cannot deny that the petitioners are eligible for functioning as government Primary school teachers.
5. The learned Advocate Mr. Md. Abdus Salam Mondal next argues that this is a case of burning example of high handedness of the government since the poor Primary school teachers, like the petitioners, are roaming as shuttlecock from door to door of the government functionaries since 1974 and although the government functionaries did not deny the eligibility of the petitioner as functioning government servant as government Primary school teachers, but unfortunately by dilatory tactic the petitioners have not been allowed to function as such.
6. The learned Advocate mr. Md. Abdus Salam Mondal further argues that the petitioner since appointed as the Primary teachers in the private Primary school and their names have been sent by the appropriate authority proposing for their appointment as government Primary school teachers as such the long pendency of the matter, not only prejudiced the petitioners but also the right of the petitioners to be treated in accordance with law has been violated and as such this rule is required to be made absolute.
7. The learned Assistant Attorney General Md. Iqbal Hossain while opposed the rule did not deny that the petitioners were not eligible lobe appointed as government Primary school teachers since, having been confronted with the annexures, appended to the writ petition the learned Assistant Attorney General finds little support to oppose the rule.
But the learned Assistant Attorney General ultimately although conceded to the rights of the petitioner, argues that as the petitioners were never appointed as Primary school teachers after the acquisition of the private Primary schools and never discharged their duties as such and therefore they are not entitled to any wages from the date of acquisition of the private Primary schools, if this Hon'ble court finds any merit in the rule.
8. We have heard the learned Advocate. Perused the petition and the annexures appended thereto. We have also considered the argument as advanced at the bar.
9. Undoubtedly through the provision of Section 3 of the act 8 of 1974 the private Primary schools of the country were taken over on and from the declared date being 31.10.1973. the provision of Section 3 of act VIII of 1974 runs as follows:
The Primary Schools (Taking Over) act, 1974: act No. VIII of 1974:
"Section: 3-Taking order of Primary school- (1) Notwithstanding anything contained in any other law, rule, regulation or bye-law/or the time being in force or in any contract or agreement, or in any deed or other instrument, the Government may by notification in the official Gazette, take over any Primary school on such date as may be specified in the notification.
(2) On the date specified in the notification under sub-section (1),-
(a) the Primary school and all its assets and property, including lands, buildings and fluids and all other rights and interests in or arising out of such proper and all records and other documents of whatever nature relating thereto, shall stand transferred to, and vested in the Government;
(b) dl teachers of the Primary school shall become employees of the Government and shall hold their service under the Government on such terms and conditions as the Government may determine; and
(c) all committees of authorities managing and administering the affairs of the Primary school shall cases to function.
Earlier the said act was promulgated as Ordinance No. XXII of 1973 wherein the provision of Section 3 declared the acquisition of the private Primary School in the following manner. The provision of Section 3 is reproduced below.
The Primary Schools (Taking Over) act 1974:
Ordinance No. XXII of 1973:
"Section: 3-Taking over of Primary school- (1) Notwithstanding anything contained in any other law, rule, regulation or bye-law for the time being, in force or in any contract or agreement or in any deed or other instrument, the Government may by notification in the official Gazette, take over any Primary school on such date as may be specified in the notification.
(2) On the date specified in the notification under sub-section (1),
(a) the Primary school and all its assets and property, including lands, buildings and funds and all other rights and interests in, or arising out of such property, and all records and other documents of whatever nature relating thereto, shall stand transferred to. and vested in the Government:
(b) all teachers of the Primary school shall become employees of the Government and shall hold their service under the Government on such terms and conditions as the Government may determine; and
(c) all committees of authorities managing and administering the affairs of the Primary school shall cases to function."
The annexure Z(2) which is the notification issued by the government under Memo No. SVIII/256-Edn dated 06.7.1973 clearly manifest the following decision of the government at Clause Nos. 1 and 2 the guidelines:-
Clause Nos. 1 and 2:
"The quota of teachers for each Subdivision has been fixed on the basis of number of Primary Schools allocated to a Subdivision at the rate of 4 teachers per schools. As per example a Subdivision has been allotted 100 Primary Schools, that Subdivision will get a quote of 400 teachers.
(2) Whether a particular school will get 4 teachers or more or less, will be decided by the Sub-divisional Selection Committee constituted for the purpose. While the Selection Committee may allotee for a particular school 5 teachers, Le. 1 teacher more than the notional number of 4 teachers per school, the number of students so justmes, the overall number allotted for the Subdivision must not be exceeded Therefore, the Committee should not sanction more than 3 teachers for another school whether the number of students is less."
The aforesaid provision of law clearly manifest that the petitioners being the school teachers of the government Primary schools have became the government servant as government Primary school teachers. Therefore no question arise at all for their absorption separately in the respective school wherein the petitioners were serving. Annexure-S, which is a list sent by the Assistant Secretary of the ministry of Education under its Memo No. 
dated 01.10.1986 comprised the name of the petitioners as functioning Primary school teachers of Mithpukur Upazila and Sundargaon of district Gaibandha eligible for the appointment as such therefore this court finds that the petitioner admittedly was the functioning teacher of the Primary school turned into a government servant as government Primary school teacher. Therefore the petitioners were eligible for appointment in the government Primary school as they were taken over through the provision of law.
10. It appears that the petitioners were loitering, from door to door through filing various representation to the government functionaries and although none of the annexure shows any denial of the government as to the eligibility of the petitioner to be appointed and function as government Primary school teachers, but the non-action as on the part of the government has prejudice the petitioner which appears to this court as a discriminatory attitude on the part of the government as so many private Primary school teachers were allowed to be appointed and function as government Primary school teachers excepting the petitioners. Therefore this court finds merit in the rule.
So far the question of entitlement of salary and other benefit of the petitioners is concerned it appears that the petitioners did not function or discharge their duty in any of the school after its acquisition as government school and as such they are not entitled to any wages for any period and as such this Court finds substance in the submission of the learned Assistant Attorney General.
Under the discussion and reasoning as above this court finds merit in this rule and accordingly the same is required to be made absolute.
11. In the result, the rule is made absolute. The respondents are directed to appoint the petitioners as government Primary school teachers in the government Primary school as prayed by the petitioners provided the petitioners are still eligible otherwise for such service under the provision of law as to their age and other qualification.
However, the petitioners will not be eligible for any back wages or benefit. But as to their seniority, the same may be considered from the dare of acquisition of the school by the act of Parliament.
However, there shall be no order as to cost.
Reference: 2009(17)BLT(HCD)365
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