Published in
Cases and Materials on Clinical Legal
Education
Editor
Professor Abdullah Al Faruque
Publisher
Higher Education Quality Enhancement Project (HEQEP; CP - 3156)
Faculty of Law, University of Chittagong, Bangladesh
April 2016
Pages 198-245
Chapter – 12
A WRIT PETITION CHALLENGING THE DENIAL OF M.P.O
ENLISTMENT
1.
Introduction
This
Chapter deals with a Writ Petition challenging a decision of the Assistant
Director (College) at the Directorate of Secondary and Higher Education,
Ministry of Education. Assistant Director refused the M.P.O enlistment of a
principal of a private educational institution. The aggrieved principal claimed
that while he was evidently an appropriate candidate for M.P.O enlistment, the
Assistant Director’s refusal was mala
fide and reflected a total non application of mind. Moreover, the principal
had developed an uneasy relationship with the School & College authority.
From the facts and circumstances, it appears that the college authority was no more
interested in the Principal and his non inclusion in the M.P.O was one of the
problems. As there was no scope of review or appeal within the administrative
hierarchy of the Ministry of Education against the refusal, the Principal moved
the High Court Division under Article 102 alleging the violation of articles 27
(Equality), 31 (Due process) and 40 (Profession). As a consequential relief he
prayed for a status quo in relation
to his post, salaries and other benefits he was expecting from the college authority.
The facts, drafts of petitions, applications and affidavits presented here are
based on a true story. I have changed the names and identity of the persons,
institution and Benches of the Court concerned for the purpose of anonymity.
The petitions, affidavits and responses are presented chronologically so that
the learners may get a complete idea on how a Writ Petition before the High
Court Division actually goes on. Model Submissions and Judgment are prepared on
the basis of my in-person-interview with the counsels involved in the case.
2.
The Writ Petition for M.P.O. Enlistment
(05.06.2013)
Mr.
Md. Salah Uddin Ahmed Khan was the Principal of Chittagong Technical School and
College, Rauzan, Chittagong. Starting his teaching career as a Lecturer in a
private college in 1987, he used to receive M.P.O (Monthly Payment Order) till
2004. Monthly Payment Order is a government list of private school and college
teachers, a major portion of whose salaries and other benefits are paid by the
government. Rest of the amount of their salaries and benefits are paid by the
school and colleges concerned. After a higher study break of two years, Mr Md.
Salah Uddin Ahmed Khan returned to his teaching career as the Principal of
another private college in 2006. After serving as Principal of several
colleges, he again got enlisted in the M.P.O in 2008 and continued to receive
government portion of his salary till January 2011. In February 2011, he joined
the Chittagong Technical School and College as Principal. The School &
College authority applied on his behalf for inclusion of his name in the M.P.O
list as the Principal of the School & College. The Assistant Director
(College) in the Directorate of Secondary and Higher Education, this time
denied his enlistment.
By the time of this Writ Petition in May 2013, Mr Md
Salah Uddin Ahmed Khan developed sour relationship with some of his colleagues
and the School & College authority. Governing Body of the School &
College started showing disinterest in him as the Principal of the School &
College. In May 2013, Mr Khan was hospitalized for cardiac complexities. He
received treatment, including a major surgery, in different hospitals and
remained absent from his work place. On 05 May 2013, Mr Khan filed a Writ
Petition challenging the denial of his M.P.O. enlistment and made the
government officials and the School & College authority respondents.
Following is the draft of the Writ Petition.
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
An
application under Article 102(1) and (2)(a)(i)(ii) of the Constitution of
Peoples’ Republic of Bangladesh;
AND
IN
THE MATTER OF:
Md.
Salah Uddin Ahmed Khan, son of Mohammad Saber, Principal of the Chittagong Technical
School & College, P/S: Rauzan, Dist: Chittagong ….…… Petitioner
- VERSUS –
1. Bangladesh represented by the
Secretary, Ministry of Education, Bangladesh Secretariat, P.S. Shahbag,
District – Dhaka;
2. Director General, Directorate of
Secondary and Higher Education, Shikkha Bhaban, 16, Abdul Gani Road, Dhaka;
3.
Assistant Director (College 3), Directorate of Secondary
and Higher Education, Shikkha Bhaban, 16, Abdul Gani Road, Dhaka;
4. The Board of Intermediate and
Secondary Education, Chittagong, represented by its Chairman;
5. Chairman, Governing Body,
Chittagong Technical School and College, P.S.- Rauzan, District – Chittagong ……………
Respondents
AND
IN THE MATTER OF:
Memo
No. 7G/93(ka-3)/10/5733/2 dated 06.06.2011 (Annexure A) issued by the
respondent No. 3 Assistant Director refusing M.P.O. enlistment of the
petitioner as the Principal of Chittagong Technical School and College, Rauzan,
Chittagong alleging the ground of his lack of 12 years’ experience in service
for inclusion in the Monthly Payment Order (M.P.O) despite submission of
necessary papers showing experience of more than 25 years’ as evidenced by
earlier enlistment in the M.P.O. under index No. 013852 in relation to
Chittagong Public College (Annexure C), the same being vitiated by
arbitrariness, mala fide, non
application of mind and also violative of Articles 27, 31 and 40 of the
Constitution, and thus, to be declared without lawful authority and of no legal
effect;
AND
IN THE MATTER OF:
Direction
upon the respondents for the immediate payment of government portion of the
salary to the petitioner by way of inclusion of his name in the Monthly Payment
Order (M.P.O.) list as the Principal of Chittagong Technical School &
College, Rauzan, Chittagong.
TO
Mr
Justice Surendra Kumar Sinha, the Hon’ble Chief Justice of Bangladesh and his
Companion Justices of the said Hon’ble Court.
The
humble petition on behalf of the applicant above named most respectfully –
SHEWETH:
1.
That
the petitioner is a law abiding citizen and resident of Bangladesh and the
Principal of Chittagong Technical School and College, Rauzan, Chittagong.
2.
That
the address of the petitioner for service of petitions, affidavits and other
documents relating to this application is under care of Juristic Minds, Barristers and Consultants, of House – 18, Road –
145, Flat – F2, Gulshan 1, Dhaka - 1212 and the Supreme Court Bar Building,
Room No. 330 (Old Building), Supreme Court, Dhaka.
3.
That
the respondent No. 1 is Bangladesh being represented by its Secretary, Ministry
of Education, the respondent No. 2 is the Director General of Directorate of
Secondary and Higher Education, the respondent No. 3 is the Assistant Director
(College 3) of the Directorate of Secondary and Higher Education, the
respondent No. 4 is the Board of Intermediate and Secondary Education,
Chittagong represented by its Chairman and the respondent No. 5 is the Chairman
of the Governing Body of Chittagong Technical School and College, Rauzan,
Chittagong. The addresses of the respondents as given in the cause title are
correct for the purposes of notices etc. upon them.
4.
That
the petitioner has impugned herein the memo No. 7G/93(ka-3)/10/5733/2 dated
06.06.2011 issued by the respondent No. 3 Assistant Director refusing M.P.O.
enlistment of the petitioner as the Principal of Chittagong Technical School
and College, Rauzan, Chittagong alleging the ground of his lack of experience
in service for inclusion in the Monthly Payment Order (M.P.O), the same being
vitiated by arbitrariness, mala fide,
non application of mind and also violative of Articles 25, 31 and 40 of the
Constitution.
Photocopy of the said memo dated
06.06.2011 is annexed hereto and marked as Annexure
A.
5.
That
the petitioner is a teacher by profession. After his graduation and upon
obtaining a degree of Master of Science in Mathematics, the petitioner joined
the profession on 02.02.1987 as a Lecturer of Chittagong Public College,
Chittagong. Upon joining as such, the petitioner continued teaching in the same
institution without any service break up till March 4, 2004.
Photocopy of the release letter
dated 07.10.2007 showing the total length of service of the petitioner in the
said college is annexed hereto and marked as Annexure B.
6.
That
during the period from 02.02.1987 to 04.03.2004, the petitioner was promoted to
the post of Assistant Professor and accordingly, served in the above noted
institution for the last 4 (four) and half years of his service as an Assistant
Professor of the said college with satisfaction of all concerned.
7.
That
upon joining the Chittagong Public College as a Lecturer of Mathematics on
02.02.1987, the name of the petitioner was included in the Monthly Payment
Order (M.P.O) list vide Index No. 013852 and, thus, he was enjoying salary
under the Monthly Payment Order (M.P.O) since 1987 till 2004.
Photocopies of the M.P.O sheets
showing the receipt of M.P.O by the petitioner since 1987 under Index No.
013852 is annexed hereto and marked as Annexure
C and C-1.
8.
That,
thereafter, the petitioner decided to pursue further study and, accordingly,
took admission in the University of Chittagong as a M.Phil student. After
successful completion of the M. Phil course, the petitioner joined Mirza Gaus
College, Mohora, Chittagong on 01.04.2006 as the Principal of the said college.
9.
That
after a short period of service as the Principal in the said Mirza Gaus
College, the petitioner joined Monsaf Nagar College, Patya, Chittagong and
Syeda Jahan Memorial College, Bakalia, Chittagong on 04.10.2007 and 03.05.2008
respectively. The Petitioner served in the said colleges as the Principal with
sincerity, honesty and satisfaction of all concerned.
10. That as the Principal of Syeda
Jahan Memorial College, the petitioner used to receive government portion of
the salary as per Monthly Payment Order (M.P.O) under a separate Index No.
3082122.
Photocopy of the M.P.O for
November 2010 showing receipt of M.P.O under Index No 3082122 is annexed hereto
and marked as Annexure D.
11. That, subsequently, pursuant to
an advertisement published in the daily newspaper, the petitioner submitted an
application for appointment as the Principal of the Chittagong Technical School
and College.
12. That, accordingly, Chittagong
Technical School and College vide letter
dated 15.01.2011 invited the petitioner to join the post as the Principal of
the said College on a monthly pay scale to the tune of Tk 22,250 to 32,250/-
Photocopy of the said appointment
letter dated 15.01.2011 is annexed hereto and marked Annexure E.
13. That the petitioner joined the
post of Principal on 09.02.2011. After the joining of the petitioner as above,
the Governing Body of the aforesaid College vide an application dated
15.03.2011 made a request to the Directorate of Secondary and Higher Education
for granting government portion of the salary in favor of the petitioner by way
of inclusion of his name in the Monthly Payment Order (M.P.O) list as the
Principal of Chittagong Technical School and College.
Photocopy of the said application
dated 15.03.2011 is annexed hereto and marked as Annexure F.
14. That the said application for
M.P.O dated 15.03.2011, the all necessary documents were enclosed to consider
the eligibility of the institution and the petitioner to receive the government
portion of the salary by way of inclusion of the name of the petitioner in the
Monthly Payment Order (M.P.O) list as the Principal of Chittagong Technical
School and College.
15. That upon receipt of the said
application dated 15.03.2011, the office of the Director General, Directorate
of Secondary and Higher Education vide letter dated 06.06.2011 (Annexure A) refused to include the name
of the petitioner in the Monthly Payment Order (M.P.O) list on alleging the
ground of his lack of experience in service.
16. That, subsequently, the Governing
Body of the college in question vide another application dated 29.09.2011
together with a list of teachers further requested the Director General of the
Directorate of Secondary and Higher Education for granting government portion
of the salary in favor of the petitioner by way of inclusion of his name in the
Monthly Payment Order (M.P.O) list as the Principal of the said School and
College. Despite receipt of the said application, the respondents have failed
to take necessary steps towards inclusion of name of the petitioner in the
M.P.O.
Photocopy of the said application
and list of teachers dated 29.09.2011 are annexed hereto and marked Annexure G & G-1.
17. That the petitioner joined the
profession of teaching back in 1987. After joining the profession as the
Lecturer of Chittagong Public College, the name of the petitioner was included
in the Monthly Payment Order (M.P.O) list in February 1987 and, accordingly, he
received government portion of the salary vide Index No. 031852 since 1987 till
2004.
18. That during service as the
Principal of Syeda Jahan Memorial College, the petitioner used to receive
government portion of the salary as per Monthly Payment Order (M.P.O) under a
separate Index No. 3082122.
19. That considering the vast
experience in teaching and his eligibility for the post of the Principal, the
petitioner was lawfully appointed as the Principal of Chittagong Technical
School and College and, as such, he is
entitled to receive government portion of the salary as the principal of the
said College from February 2011 and onwards.
20. That, lastly on 24.04.2013 the
petitioner by a notice demanded government portion of the salary in favor of
the petitioner by way of inclusion of his name in the Monthly Payment Order
(M.P.O) list as the Principal of Chittagong Technical School and College but to no avail.
Copy of the said notice dated
24,04,2013 is annexed hereto and marked Annexure
H.
21. That the petitioner craves kind
leave of the Hon’ble Court to swear affidavit with photocopies of the annexures
as some of the originals are lying with the respondents. The photocopies of the
annexures are genuine and represent the true and accurate version of the
original copies.
22. That being aggrieved by and
dissatisfied with the impugned memo and there being no other equally
efficacious remedy, the petitioner above named begs to prefer this application
on the following among others:
GROUNDS
I. For that refusal to include the
name of the petitioner in the M.P.O. list on the alleged ground of his lack 12
years’ experience in the profession of teaching despite submission of necessary
papers showing experience of more than 25 years’ as evidenced by earlier
enlistment in the M.P.O under index No. 031852 in relation to Chittagong Public
College (Annexure C) is arbitrary and mala fide inasmuch as the
petitioner has been continuing the profession of teaching for the last 25
(twenty five) years and, as such, he is entitled to receive government portion
of the salary as the Principal of the said college.
II. For that refusal to include the
name of the petitioner in the Monthly Payment Order (M.P.O) list also vitiated
by non application of mind inasmuch
in the list of teachers as enclosed with the application for M.P.O dated
15.03.2011, it was categorically mentioned that the name of the petitioner was
included in the M.P.O list for the first time in 1987.
III. For That the petitioner’s legitimate expectation that the
government portion of the salary in favor of the petitioner by way of inclusion
of his name in the Monthly Payment Order (M.P.O) list is to be released forthwith
after his joining in the college in question on 09.02.2011.
IV. That refusal to include the name
of the petitioner in the Monthly Payment Order (M.P.O) list is also violative
of Articles 27, 31 and 40 of the Constitution.
Wherefore, it is most humbly prayed
that your Lordships would most graciously be pleased to
A.
Issue
a Rule Nishi calling upon the
respondents to show cause as to why memo No. 7G/93 (ka-3)/10/5733/2 dated
06.06.2011 (Annexure A) issued by the respondent No.3 Assistant Director
refusing M.P.O. enlistment of the petitioner shall not be declared to have been
issued without lawful authority and is of no legal effect and why the
respondents shall not be directed for the immediate payment of government
portion of the salary by way of inclusion of his name in monthly payment order
(M.P.O) list as the Principal of Chittagong Technical School and College,
Rauzan, Chittagong.
B.
Direct
the authorities to certify and transmit the records of the case; and
C.
Make
the Rule absolute upon hearing the parties and causes shown, if any, by the
respondents and/or such other or further order or orders as to the Court may
deem fit and proper; and
D.
Pending
disposal of the Rule, your Lordships would further be pleased to direct the
respondent No. 5 to maintain status quo
in respect of the service of the petitioner as the Principal of Chittagong
Technical School and College, Rauzan, Chittagong.
And
for this act of kindness, your humble petitioner, as in duty bound, shall ever
pay.
AFFIDAVIT
I,
Md. Salah Uddin Ahmed Khan, son of Mohammad Saber and Roshida Begum, Principal
of the Chittagong Technical School and College, Police Station - Rauzan,
District- Chittagong; a Bangladeshi national, aged about 59 years, by faith
Muslim, by profession- teacher, national ID No. ………… do hereby solemnly affirm
and say as follows:
1.
That I am the petitioner of this writ
petition and as such I am fully acquainted with the facts and circumstances of
the case and otherwise competent to swear this affidavit.
2.
That
the statement made in paragraphs No. 1-22 are statements of facts which are
true to my knowledge and information derived from the records of the case,
which I verily believe to be true and the rest are the submissions before this
Hon’ble Court.
Prepared
in my office
………………….
(Hasan
Rashid Chowdhury)
Advocate
Solemnly
affirmed before me by the said deponent on this 5th day of June 2013
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The
Deponent is known to me and identified by me
………………….
(Hasan
Rashid Chy)
Advocate
Membership
No 3567
Hall
Room No 330 (Old) S.C.B.B
|
3.
The Rule Nishi and Interim Order of 07.07.2013
After
a preliminary hearing of the aforesaid Writ Petition, a Division Bench of the
Hon’ble High Court Division comprising their Lordships Mr. Justice Ashiqur Rouf
and Mr Justice Sayed Mazhar Uddin vide Order dated 07.07.2013 was pleased to
issue a Rule Nishi and an interim Order as under:
“Let
a Rule Nishi be issued calling upon the respondents to show cause as to why
memo No. 7G/93 (ka-3)/10/5733/2 dated 06.06.2011 (Annexure A) issued by the
respondent No.3 Assistant Director refusing M.P.O. enlistment of the petitioner
shall not be declared to have been issued without lawful authority and is of no
legal effect and why the respondents shall not be directed for the immediate
payment of government portion of the salary by way of inclusion of his name in
monthly payment order (M.P.O) list as the Principal of Chittagong Technical
School and College, Rauzan, Chittagong and/or such other or further order or
orders be passed as to this Court may seem fit and proper.
The Rule is made returnable
within 6 (Six) weeks.
Pending hearing of the rule the
respondent No.5 is directed to maintain status
quo in respect of the service of the petitioner as the Principal of
Chittagong Technical School and College, Rauzan, Chittagong for a period of six
months.
The petitioner is directed to put
in two sets of requisites for service of notices both in usual course as well
as through registered post within 72 hours.”
4.
Writ Petitioner’s Application for a Direction
Order (06.09.2014)
By
the end of July 2013, the Writ Petitioner was well enough to resume his job. He
wrote to the School & College authority on 30.07.2013 wishing to resume his
post of Principal of the School and College. He also prayed for a medical leave
for the months of May 2013 to July 2013. The School and College authority,
however, was reluctant to see the Petitioner as their principal any more. On
26.08.2014, after exchange of few letters, the writ petitioner served a
lawyer’s notice upon the School and College authority to take necessary steps
towards payment of his arrear salary, increment and bonuses and also to allow
him to resume his official duties as the Principal with all usual service and
other benefits. Being a failure, the Writ Petitioner came to the High Court
Division again with an application for a Direction order upon the School and
College authority on the basis of the interim order of 07.07.2013. Following is
the draft of the application:
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
An
application for a direction upon the respondents to pay salary, the yearly
increments and Eid bonuses to the petitioner since May, 2013 and allow him to
resume his official duties as the Principal of Chittagong Technical School and
College;
AND
IN
THE MATTER OF:
Md Salah Uddin Ahmed Khan …. Petitioner
-VERSUS-
Government of Bangladesh and
others…….. Respondents
AND
IN THE MATTER OF:
Md
Salah Uddin Ahmed Khan, son of Mohammad Saber, Principal of the Chittagong
Technical School and College, P/S - Rauzan, District - Chittagong …… The
Applicant
TO
Mr Justice Surendra Kumar Sinha, the Hon’ble Chief
Justice of Bangladesh and his Companion Justices of the said Hon’ble Court.
The
humble petition on behalf of the applicant above named most respectfully –
SHEWETH:
1. That the petitioner above-named
filed the instant writ petition challenging memo No.7G/93(ka-3)/105733/2 dated
06.06.2011 (Annexure A) issued by the respondent No.3 Assistant Director
refusing M.P.O enlistment of the petitioner and also praying for direction for
the immediate payment of government portion of the salary to the petitioner by
way of inclusion of his name in the Monthly Payment Order (M.P.O) list as the
Principal of Chittagong Technical School and College, Rauzan, Chittagong.
2. That after a preliminary hearing
of the aforesaid writ petition, a Division Bench of the Hon’ble High Court
Division comprising their Lordships Mr. Justice Ashiqur Rouf and Mr Justice
Sayed Mazhar Uddin vide Order dated 07.07.2013 was pleased to issue a Rule
Nishi and an interim Order as under:
[The
Rule Nishi issued by the Court is then reproduced - Author]
3. That it is categorically stated
that as per interim Order dated 07.07.2013, as reproduced above, the petitioner
is legally entitled to continue his service as the Principal of Chittagong
Technical School and College, Rauzan, Chittagong. As the Principal of the said
College, the petitioner is also entitled to receive all benefits, yearly
increments and Eid bonuses including his salary, except the Government’s
portion of his salary from the college authority and the college authority is
legally under an obligation to pay the same in favor of the petitioner. The
petitioner received the said financial benefits from the college from February,
2011 till April, 2013.
4. That the
petitioner is a cardiac patient. The college authority had information that due
to cardiac problem, the petitioner was admitted to a hospital in Chittagong on
02.05.2013. Subsequently, since his health condition was found to be
deteriorating, the petitioner was transferred to the United Hospital, Dhaka for
treatment. After diagnosis at the United Hospital, the concerned doctor advised
the petitioner for some immediate surgery and, accordingly, the petitioner had
to undergo by-pass surgery. After the surgery, health condition of the
petitioner was found to be improving and he came back to Chittagong by the end
of June, 2013.
5. That after arrival in Chittagong, the
petitioner by a letter dated 30.07.2013 requested the Chairman, Governing Body
of the College to issue necessary office orders allowing him to resume his
official duties. The petitioner by letter dated 30.07.2013 also requested the
college authority to consider his absence in the college from May, 2013 to July
2013 as medical leave. However, the authority by a letter dated 20.08.2013
advised the petitioner to collect a fitness certificate from the concerned
doctor before resuming official duties.
Photocopy
of the said letter and a medical certificate both dated 30.07.2013 and a letter
by college authority dated 20.08.2013 are annexed hereto and respectively Annexures-1, 2 and 3.
6. That accordingly the petitioner
visited his doctor namely Dr. S.C. Dhar for further examination of his physical
fitness to join the office and after examination as such, the concerned doctor
found the petitioner to be fit for joining the office and, thus, certified that
the petitioner is physically sound to resume his duties.
Photocopy
of the said certificate dated 20.08.2013 is annexed hereto and marked as Annexure 4.
7. That although the petitioner
submitted the medical fitness certificate as stated above, the College
authority, to the surprise of the petitioner, took no official steps and issued
no office orders allowing the petitioner to resume official duties as the
Principal of Chittagong Technical School and College .
8. That although the absence of the
petitioner to the college from May 2013 to July 2013 was considered by the
authority as medical leave but the college authority, for the reasons best
known to them, has not been paying monthly salary to the petitioner since May,
2013. The petitioner has also not been allowed to join his office and resume
his official duties.
9. That in the facts and
circumstances as above, the petitioner by his lawyer served a notice upon the
respondents on 26.08.2014 to take necessary steps towards payment of salary
including annual increments and Eid bonuses as per the scale of the post of
Principal in favor of the petitioner since May 2013 till date and also allow
him to resume his official duties as the Principal of Chittagong Technical
School and College with all usual service and other benefits. Despite receipt
of the said notice dated 26.08.2014, the college authority miserably failed to
take any steps in this regard.
Copy
of the said notice dated 26.08.2014 is annexed hereto and marked as Annexure 5.
10. That it is categorically stated that as per
the interim Order dated 07.07.2013 passed by the Hon’ble High Court Division in
the instant writ petition, the petitioner is legally entitled to continue his
service as the Principal of Chittagong Technical School and College, Rauzan,
Chittagong. As the Principal of the said college, the petitioner is also
entitled to receive all benefits including yearly increments, Eid bonuses as
per scale for the post of Principal from the college authority and college
authority is legally under an obligation to pay the same in favor of the
petitioner.
11. That it is also categorically
stated that the order of status quo
dated 07.07.2013 passed in the instant writ petition means that the petitioner
would be functioning as the Principal of Chittagong Technical School and
College, Rauzan, Chittagong with usual service and other benefits incidental to
the said post as the petitioner enjoyed from February 2011 till April, 2013.
The Order of status quo dated 07.07.2013 is specific and clear both in its terms
and meaning.
12. That it is submitted that failure
on the part of the respondents to pay salary, the yearly increments and Eid
bonuses to the petitioner since May 2013 and allow him to resume his official
duties is arbitrary and mala fide and as such, the respondents may be directed
to pay the same and allow him to resume his official duties for ends of
justice.
13. That unless the respondents are
directed to pay the petitioner his salary, the yearly increments and Eid
bonuses to the petitioner since May 2013 and allow him to resume his official
duties, the petitioner shall suffer irreparable loss and injury.
Wherefore, it is most humbly
prayed that your Lordships would most graciously be pleased to pay salary, the
yearly increments and Eid bonuses to the petitioner since May 2013 and also to
immediately allow him to continue his official duties as the Principal of the
Chittagong Technical School and College, Chittagong and/or pass such other or
further order or orders as to your Lordships may seem fit and proper.
And
for this act of kindness, your humble petitioner, as in duty bound, shall ever
pay.
AFFIDAVIT
I,
Md. Salah Uddin Ahmed Khan, son of Mohammad Saber and Roshida Begum, Principal
of the Chittagong Technical School and College, Police Station- Rauzan, District-
Chittagong; a Bangladeshi national, aged about 59 years, by faith Muslim, by
profession- teacher, national ID No. ………… do hereby solemnly affirm and say as
follows:
1.
That I am the petitioner-applicant of this
writ petition and as such I am fully acquainted with the facts and
circumstances of the case and otherwise competent to swear this affidavit.
2.
That
the statement made in paragraphs No. 1-13 are statements of facts which are
true to my knowledge and information derived from the records of the case,
which I verily believe to be true and the rest are the submissions before this
Hon’ble Court.
Prepared
in my office
………………….
(Hasan
Rashid Chowdhury)
Advocate
Solemnly affirmed before me by the said deponent on
this 6th day of September 2014
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(Hasan Rashid Chowdhury)
Advocate
Membership No 3567
Hall Room No 330 (Old) S.C.B.B
|
5.
The Direction Order (30.09.2014)
A
Vacation Bench of the High Court Division comprising Mr. Justice Sheikh Nur
Mohammad and Mr Justice Badrul Ahsan issued a direction order upon the
Chittagong Technical School and College authority to reinstate the Writ Petitioner
in his post within two weeks from date of the order, pay arrears of his
salaries and bonuses since May 2013 and maintain status quo in relation to the post until further order.
6.
Respondent’s Application for Vacation of the Status Quo & Direction Order
(03.12.2014)
After
a series of letter exchange between the Writ Petitioner, Md. Salah Uddin Ahmed
Khan, and the School & College authority, the Governing Body of the School
& College ultimately decided to move an application for vacation of the
Status Quo Order of 07.07.2013 and Direction Order of 30.09.2013. In that
application the School & College authority tired to make out a case that
they did not get any certified copy of the order of 07.07.2013. They also
claimed that the Direction Order of 30.09.2013 did not identify them correctly.
Here is the draft:
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
An
application for vacating the order of status quo dated 07.07.2013 passed by a
Division Bench of the Honorable High Court Division comprising their Lordships
Mr. Justice Ashiqur Rouf and Mr Justice Sayed Mazhar Uddin directing the
respondent No. 5 to maintain status quo
in respect of the service of the Writ Petitioner as Principal of Chittagong Engineering
University School & College and the order of direction dated 30.09.2014
passed by a Division Bench of the Honorable High Court Division comprising
their Lordships Mr. Justice Sheikh Nur Mohammad and Mr Justice Badrul Ahsan
directing the respondents, in particular respondent No. 5 to pay salaries,
yearly increments and Eid bonuses to the Writ Petitioner since May, 2013 and
also to allow him to resume his function
as the Principal of the Chittagong Technical School and College; Chittagong
within two weeks from receipt of the copy of the said order so far it relates
to the applicant.
AND
IN THE MATTER OF:
Md.
Salah Uddin Ahmed Khan ……….. Petitioner
-VERSUS-
Government
of Bangladesh and others ...….. Respondents
AND
IN THE MATTER OF:
Chairman,
Governing Body of Chittagong
Technical School and College, P/S – Rauzan, Dist- Chittagong ………………
Respondent No.5/ the Applicant
TO
Mr Justice Surendra Kumar Sinha, the Hon’ble Chief
Justice of Bangladesh and his Companion Justices of the said Hon’ble Court.
The
humble petition on behalf of the applicant above named most respectfully –
SHEWETH:
1. That the instant application is
directed against the order of status quo dated 07.07.2013 and the order of
direction dated 03.09.2014 in the aforementioned Writ Petition which was filed
by the Writ Petitioner challenging Memo No. 7G/93(KA-3)/10/5733/2 dated
06.06.2011 (Annexure-A), issued by the respondent No. 3 Assistant Director
refusing Monthly Payment Order (M.P.O) enlistment of the Writ Petitioner and
also praying for direction for the immediate payment of Government portion of
the salary to the writ petitioner by way of inclusion of his name in the M.P.O
list as the Principal of School & College.
2. That after preliminary hearing of
the aforesaid Writ Petition, a Division Bench of the Hon’ble High Court
Division comprising their Lordships Mr. Justice Ashiqur Rouf and Mr Justice
Sayed Mazhar Uddin vide order dated 07.07.2013 was pleased to issue a Rule
Nishi and an interim order. The Rule
Nishi called upon the respondents to show cause as to why the memo issued
by Assistant Director refusing MPO enlistment of the Writ Petitioner shall not
be declared to have been issued without lawful authority and is of no legal
effect and why the respondents shall not be directed for the immediate payment
of Government portion of the salary to the petitioner by way of inclusion of
his name in the M.P.O list. Whereas the Rule was made returnable within six
weeks, pending the hearing of the Rule, the respondent No. 5, the present
Applicant, was directed to maintain status
quo in respect of the service of the Writ Petitioner as Principal of the
School & College for a period of six months.
3. That the applicant is the
respondent No. 5 to the Writ Petition. But he did not receive any copy of the
aforesaid order dated 07.07.2013 as of today. However, the office assistant
(clerk) of the School and College placed a joining letter of the petitioner
dated 11.10.2014 annexed with a photocopy of the certified copy of an order
dated 30.09.2014 passed by this court in the instant Writ Petition at the time
of ongoing meeting of the Governing Body of the School and College held on
16.10.2014.
Copy of the said Joining Letter
is annexed herewith and marked as Annexure-1.
4. That the Writ Petitioner did not
submit the aforementioned joining letter being present in the School &
College. He gave it to the office assistant (clerk) by calling him in his
Chittagong town residence. On perusal of the same it appeared that there is a
direction upon the writ respondents, in particular the respondent No.5 (the
present applicant) by this Hon’ble Court. The applicant did neither get copy of
the order dated 30.09.2014 through this court nor the Writ Petitioner submitted
the certified copy of the same to the School & College authority nor was
the submitted photocopy attested by the Writ Petitioner’s lawyer. The School
& College authority therefore found it risky to take step upon the
photocopy of the said order. Therefore, on 16.10.2014, the School & College
authority issued a letter to the Writ Petitioner disclosing their apprehension.
Copy
of the letter dated 16.10.2014 is annexed herewith and marked as Annexure-2.
5. That on 20.10.2013 the Writ
Petitioner received the aforesaid letter dated 16.10.2014 and then on
23.10.2014, the holiday for Hizri New year, he submitted the certified copy of
the order dated 30.09.2014 to the office assistant (clerk) of the School &
College in the way stated earlier. The office assistant (clerk) gave the same
to the School & College authority on 25.10.2014 (opening day) having duly
enrolled in the receiving register on the same date. While perusing the
certified copy, the School & College authority found the wrong
identification of the respondent No.5, the applicant, in the identity portion
of the order. The Governing Body therefore in its meeting of 01.11.2014 issued
another letter to the Writ Petitioner requesting him to submit a copy of the
30.09.2014 order with correct identification of the applicant as respondent
No.5. The letter of 01.11.2014 was received by the Writ Petitioner on
06.11.2014.
Copy of the said letter is
annexed herewith and marked as Annexure-3.
6. That the writ petitioner obtained
the order dated 30.09.2014 on ex parte by
misleading this Hon’ble Court. Since then, the applicant had been waiting for a
copy of the order in correct form (regarding the applicant’s identity) from the
Writ Petitioner in response to its request of 01.11.2014 or from this Hon’ble
Court in due course. The applicant neither got such copy from the Writ
Petitioner nor he got the same through this Hon’ble Court.
7. That the Writ Petitioner obtained
direction order of 30.09.2014 through an application for direction on the basis
of concocted and baseless statements mentioned in paragraph Nos. 5 to 8 of the
said application
[Paras 4 to 8 of
the application for direction order are then reproduced verbatim – Author].
8. That the real facts are as
follows:
(I)
hile
absent without authorization of the School & College authority from the
beginning of May 2013, the Writ Petitioner sent an application praying for
Medical Leave on 09.05.2013. Thereafter, on 30.07.2013 the Writ Petitioner
filed another application to the applicant praying for permission to resume his
service. In response to the said letter the applicant issued a letter dated
20.08.2013 directing the Writ petitioner to submit a proper physical fitness
certificate. Surprisingly, while the Writ Petitioner claimed to get a Rule
Nishi against the applicant by an order dated 07.07.2013, he did not mention
that at all in his joining letter dated 30.07.2013. It is clear that at the
time of the said status quo order of 07.07.2013, the Writ Petitioner was absent
from his work station without authorization.
(II) Though the Writ Petitioner
received the letter dated 20.08.2013, he did not bother to reply to the said
letter and thereby defied the service rules and authority of the School &
College. Though the Writ Petitioner claims that he submitted a certificate of
fitness dated 20.08.2013 given by Dr. S.C. Dhar, actually he did not. Rather he
remained absent from the School & College as earlier.
(III) The Writ Petitioner now most
cunningly claims all benefits, yearly increments and Eid bonuses including his
salaries as arrears for a time during which he was absent without
authorization. The Writ Petitioner in fact is not entitled to claim the same
for the period as he remained absent in the School & College.
(IV) The applicant did not get the
copy of the order dated 07.07.2013 through court or from any reliable source.
The Writ Petitioner also did not submit any copy of the same to this applicant.
Even he did not mention the matter of the said order dated 07.07.2013 in his
letter dated 30.07.2013 written to this applicant. The School & College
authority was kept in dark about the said order. Yet the Writ Petitioner has
made false averments and submissions on these points without hesitation.
(V) This Hon’ble Court gives protection only to
those people who come to this Court with clean hands. The Writ Petitioner did
not come in clean hands to take recourse of law. He violated the terms and
conditions of his appointment letter as well as service rules of the School
& College which were briefly pointed out in the letter of the Governing
Body dated 16.10.2014.
A copy of which is attached
herewith as Annexure 2.
(VI) In the said letter of 16.10.2014,
the School & College authority has given detailed account of various
written allegations against the Writ Petitioner filed by the teachers and
staffs regarding harassment to the female colleagues by way of objectionable
gesturing, posturing and verbal communication and misappropriation of fund with
a lot of anomalies in respect of his assigned job. Details of the responses
given by the Writ Petitioner against those allegations and actions taken by the
Governing Body in those cases were also presented in the said letter of
16.10.2013. Given the situation the petitioner found himself unfit both
physically and morally. Having serious moral degradation and breach of service rules,
the Writ Petitioner started to find tricky ways for enjoying financial and
other benefits from the School & College authority very unlawfully. At the
same time he remained absent from the School & College to avoid such
unavoidable circumstances.
(VII)
The
Writ Petitioner misled the School & College authority claiming that he has
required experience for having appointment in the post of Principal. But as of
today he could not include his name in the M.P.O by submission of necessary
papers to the respondent Nos. 1-4 of the instant Writ Petition. The School
& College authority is not in a position to allow a teacher to continue his
service as Principal like the petitioner for indefinite period without
inclusion of his name in the M.P.O. So the Writ Petitioner’s service is liable
to be terminated.
(VIII)
The aforesaid activities of the Writ
Petitioner deserve termination from the service as per Service Rules. Though
series of actions and steps have already been taken against him, the School
& College authority shows lenient view toward him believing the information
given by him, especially considering his illness. Moreover, he is given much
time to correct himself. But he remains incorrigible. When the authority finds
no other alternatives except his termination from service the petitioner
started beating around the bush just to escape himself from the allegations
lodged against him. Copies of the appointment letter, allegations, show-cause
notices and letters, and mercy petitions are annexed herewith and marked as Annexure-4-series.
9. That since the applicant was
directed in particular by the order of this Hon’ble Court dated 30.09.2014,
obtained by the Writ Petitioner in the aforementioned way, there is serious
apprehension of irreparable loss and injury to the School & College
authority if the said order remains in force. The School & College
authority therefore has preferred this application for vacating the orders of
status quo dated 07.07.2013 and of direction dated 30.09.2014.
10. That this Hon’ble Court by the
direction order of 30.09.2014 directed the respondent No. 5 (the applicant) in
particular to pay salaries, yearly increments and Eid bonuses to the Writ
Petitioner and also to allow him to resume his function as the principal of the
School & College. But the applicant is not the sole authority to do so.
This School & College is a non Government Educational Institution. A
teacher of a Non Government Educational Institution gets a portion of his
salary and other benefits from the government and the rest portion from the
School & College fund, if there be any.
11. That it is clear that giving the
government portion of the salary will be exclusively within the authority of
the respondents Nos. 1-4. About the rest of the amount to be given by the
School & College authority, it is pertinent to mention that the Writ
Petitioner being absent without authorization during the period concerned, the
direction upon the applicant regarding the same is unlawful and not tenable in
the eye of law.
12. That the government portion of
the salary and other benefits is subject to the condition of the Writ
Petitioner being qualified for inclusion in the M.P.O list. The respondent No.5
(the applicant) clearly included a condition of the Writ Petitioner being
included in the M.P.O list in his appointment letter (condition No. 9) which is
annexed within the Annexure 4- series.
Admittedly the Writ Petitioner failed to get enlisted in the M.P.O list twice
on 15.03.2011 and 29.09.2011. In spite of the School & College authority
extending all possible assistance, the government authority, the respondent No.
3 in particular, refused to include his name in the M.P.O vide Memo No.
7G/93(Ka-3)/10/5733/2 dated 06.06.2011.
13. That the Writ Petitioner by
hiding his lack of qualification to be appointed as principal of the School
& College already swallowed a lot of benefits including his salaries and
incidental benefits from the School & College fund till May 2013. Since the
Writ Petitioner finds no hope and legal possibility to include his name in the
M.P.O for long time, the Governing Body of the School & College took a
decision being No. 107/8 (Ga) in its meeting of 08.03.2013 to take step against
his professional misconduct and other illegal activities. The Writ Petitioner
started to avoid the School & College to skip his responsibilities,
liabilities and offences. He remained absent without authorization on pretext
of illness and it is during that time that he filed the instant Writ Petition
with mala fide intention of
continuing his swallowing financial benefits through this Court and obtained
the order dated 30.09.2014 upon false and concocted statements keeping the
Hon’ble Court in quite dark.
14. That the Writ Petitioner
practiced imposture and falsity in obtaining the order dated 30.09.2014 and
07.07.2013 and by making prayer for extending the order of 07.07.2013 time to
time so far as it relates to status quo.
15. That there is serious
apprehension of irreparable harm to the School & College if he resumes his
service as Principal of the same as per interim
order dated 30.09.2014 without ascertaining the matter in question that is
inclusion of his name in M.P.O. by the respondent Nos. 1-4 upon final hearing
of the Writ Petition. Therefore, the order of direction dated 30.09.2014 should
be vacated for ends of justice.
16. That the School & College
authority is very much conscious about the holy order of the apex court. The
applicant, the founder Vice Chancellor of public university of Chittagong, who
earned much fame for his honest and sincere administrative qualities, has been rendering
relentless service to the School & College as the Chairman of the Governing
Body. In that capacity, he assures this Hon’ble Court that the School &
College authority is willing to obey any order passed by this Hon’ble Court.
17. That the applicant prays for kind
leave of the Hon’ble Court to swear affidavit with photocopies of annexure
since the original copies of Annexure 1 to 3 and some of Annexure 4 series are
lying with the Writ Petitioner and the rest of the Annexure 4 series are lying
with the School & College authority and the same will be shown at the time
of hearing.
Wherefore,
it is most humbly prayed that your Lordships would graciously be pleased to
allow the instant application and pass an order vacating the order of status quo dated 07.07.2013 and other
order of direction dated 30.09.2014 and/or pass such order or further order or
orders as your Lordships may deem fit and proper.
AFFIDAVIT
I,
Professor Md. Khairuzzaman, son of Latre Abdul Gafur Saleh and Late Mosammat
Khairunnessa Begum, Chairman of Governing Body, Chittagong Technical School
& College, P/S- Rauzan, Dist- Chittagong aged about 67 years, Profession-
teacher by faith Muslim, by nationality Bangladeshi, national ID No. ………… do
hereby solemnly affirm and say as follows:
1.
That
I am the respondent No.5 - applicant being aware of the facts and circumstances
of the case and as such I am competent to swear this affidavit.
2.
That
the statements made in this application are true to my knowledge and belief.
Prepared
in my office
………………….
(H.M.
Khaleq)
Advocate
Solemnly
affirmed before me by the said deponent on this 3rd day of
December 2014
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(H.M. Khaleq)
Advocate
Membership No 3909
Hall Room No 216 (Annex)
|
7.
Affidavit-in-Opposition on behalf
of the School & College (11.01.2015)
The
application for vacation of the status
quo and Direction Order being a failure, the Governing Body of the
Chittagong Technical School & College decided to contest the case on merit
and filed an Affidavit-in-Opposition on 11.01.2015. Interestingly, the question
of qualification or disqualification of the Writ Petitioner to be included in
the M.P.O was an issue related to the government authorities, the respondent
Nos. 1-4. But the School and College authority took it upon themselves to show
that the Writ Petitioner was not eligible to be included in the M.P.O. The
government, on the other hand did not enter any written opposition. It rather
made some oral submissions during the hearing. Following is the draft of the
Affidavit-in-Opposition:
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
Md
Salah Uddin Ahmed Khan ……….. Petitioner
-VERSUS-
Government
of Bangladesh and others ………….. Respondents
AFFIDAVIT-IN-OPPOSITION
ON BEHALF OF THE RESPONDENT NO. 5
I,
Professor Md. Khairuzzaman, son of Late Abdul Gafur Saleh and Late Mosammat
Khairunnessa Begum, Chairman of Governing Body, Chittagong Technical School
& College, P/S- Rauzan, Dist- Chittagong aged about 67 years, Profession-
teacher by faith Muslim, by nationality Bangladeshi, national ID No. ………… do
hereby solemnly affirm and say as follows:
1. That I am the respondent No. 5-
applicant being aware of the facts and circumstances of the case and as such I
am competent to swear this affidavit.
2. That the respondent No. 5 to the
Writ Petition did not receive any copy of this Rule. The office assistant
(clerk) of the School and College placed a joining letter of the petitioner
dated 11.10.2014 annexed with a photocopy of the certified copy of an order
dated 30.09.2014 passed by this court in the instant Writ Petition at the time
of ongoing meeting of the Governing Body of the School and College held on
16.102014.
Copy of the said Joining Letter
is annexed herewith and marked as Annexure-1.
3.
That on 23.10.2014, the holiday for Hizri New year, the
Writ Petitioner submitted the certified copy of the order dated 30.09.2014 to
the office assistant (clerk) of the School & College in the way stated
earlier. The office assistant (clerk) gave the same to the School & College
Authority on 25.10.2014 (opening day) having duly enrolled in the receiving
register on the same date. While perusing the certified copy, the School &
College authority found the wrong identification of the respondent No.5, the
applicant, in the identity portion of the order. The Governing Body therefore
in its meeting of 01.11.2014 issued another letter to the Writ Petitioner
requesting him to submit a copy of the 30.09.2014 order with correct
identification of the applicant as respondent No.5. The letter of 01.11.2014
was received by the Writ Petitioner on 06.11.2014.
Copy of the said letter is
annexed herewith and marked as Annexure-2.
4. That the writ petitioner did not
respond to the letter dated 01.11.2014 issued by the respondent No.5 to him.
The School & College authority thereafter collected a copy of this writ
petition and took decision to contest the case and accordingly they engaged
learned lawyer and appeared in the case by filling a power on 03.12.2014.
However, the respondent No.5 has been advised to converted only those
statements which are necessary for disposal of this Rule and the statements
which have not been specifically admitted hereinafter shall be deemed to have
denied by the respondent No.5.
5. That the statements made in
paragraph No. 1 are not true it’s sense and hence denied. It is submitted
regarding his claim of being the Principal of Chittagong Technical School &
College, Rauzan, Chittagong that Writ Petitioner has been remaining
unauthorized absent in the School & College from May, 2013 as of today.
Remaining unauthorized absent he can’t claim himself as Principal of the School
& College. Besides he failed to show any honor upon terms and condition of
his appointment letter as well as Service Rules.
6.
That the statements made in paragraph 2 of the Writ
Petition are matters of facts and hence the deponent did not make any comment.
7. That the statements made in
paragraph 3 of the Writ Petition are maters of facts and hence calls for no
comments.
8. That the statements made in
paragraph 4 of the Writ Petition are maters of facts and hence calls for no
comments.
9.
That with regard to statements made in paragraph 5 to 10
are denied because the Writ petitioner could not annex the concerned documents
before this Hon’ble Court or to the respondent No. 5 as of today according to
his reference though he is bound to do so. It is submitted that after 2004, the
writ petitioner’s name was included in the monthly payment order (M.P.O) only
for once while Sayeda Jahan Memorial College was listed in the M.P.O for the
first time. Here it is pertinent to mention that though the writ petitioner
claims that he was the principal of the said college but the annexures D to the
writ petition says that the writ petitioner’s name was included in the M.P.O
against a scale to the tune of 18000+ which is the scale of a Assistant
Professor not the scale of a Principal.
10. That the statements made in
paragraph No. 11 of the Writ Petition are matters of record as such called no
comments.
11. That with regard to the
statements made in paragraph No. 12 are matters of record except selection of
the Writ Petitioner for the post of Principal of the School and College and
called for no comment. It is submitted regarding selection of the Writ
Petitioner for the post of Principal of the School and College that the Writ
Petitioner gave assurance to the respondent No. 5 by saying that he has
necessary qualification and experience for being the Principal of the School
and College and he would be able to produce the necessary documents thereof.
But as of today he could not prove his eligibility for the post of principal of
the School and College.
12. That the statements made in
paragraph No. 13 are matters of record and called for no comment.
13. That the statements made in
paragraph No. 14 are matters of record and called for no comment.
14. That with regard to the
statements made in paragraph No 15 matters of record except making request by
the respondent No. 5 for inclusion the Writ Petitioner’s name in the M.P.O and
as such do not require any comment. Regarding making by respondent No. 5 for
granting government portion of the salary in favor of the petitioner by way of
inclusion his name in the M.P.O it is submitted that the respondent No 5
refused to do so at first. But being convinced by the petitioner’s repeated
claim that the documents annexed with the application dated 15.03.2011 was
sufficient for such inclusion; it applied on the second thought.
15. That the statements made in
paragraph No 16 are not correct except as regards the enclosure to consider the
eligibility of the School and College for inclusion in the list of M.P.O. The
enclosure regarding eligibility of institution is sufficient and hence other
teachers of the school and college have been enjoying the government portion of
their salary from the respondent No. 1 to 4 for long time.
16. That the statements made in
paragraph No. 17 are matters of record and called for no comment.
17. That regarding the statements
made in the paragraph No 18 it is submitted that the respondent No 5 made
request in application dated 29.09.2011 for the reason stated in the paragraph
No 12 of this affidavit-in-opposition.
18. That with
regard to the statement made in paragraph No 19 and 20 it is submitted that the
Writ Petitioner could not submit concerned documents before this Hon’ble Court
as well as to the respondent No 5
19. That the statements made in
paragraph No 21 are not correct and hence denied. It is submitted that the Writ
Petitioner suffers from shortage of experience to be appointed as Principal of
the School & College and also to include his name in the M.P.O and hence he
has failed to include his name in the M.P.O as of today. Being failed to do so
the Writ Petitioner filed this petitioner mala
fide and upon false statement and obtained the Rule.
18. That the real facts are as
follows:
i.
That
the Writ Petitioner by hiding his lack of qualification to be appointed as
principal of the School & College already swallowed a lot of benefits
including his salaries and incidental benefits from the School & College
fund till May 2013. Since the Writ Petitioner finds no hope and legal
possibility to include his name in the M.P.O for long time, the Governing Body
of the School & College took a decision being No. 107/8 (Ga) in its meeting
of 08.03.2013 to take step against his professional misconduct and other
illegal activities. The Writ Petitioner started to avoid the School &
College to skip his responsibilities, liabilities and offences. He remained
absent without authorization on pretext of illness and it is during that time
that he filed the instant Writ Petition with mala fide intention of continuing
his swallowing financial benefits through this Court and obtained the order
dated 30.09.2014 upon false and concocted statements keeping the Hon’ble Court
in quite dark.
ii.
While absent without authorization of the School &
College authority from the beginning of May 2013, the Writ Petitioner sent an
application praying for Medical Leave on 09.05.2013. Thereafter, on 30.07.2013
the Writ Petitioner filed another application to the applicant praying for
permission to resume his service. In response to the said letter the applicant
issued a letter dated 20.08.2013 directing the Writ petitioner to submit a
proper physical fitness certificate. Surprisingly, while the Writ Petitioner
claimed to get a Rule Nishi against the applicant by an order dated 07.07.2013,
he did not mention that at all in his joining letter dated 30.07.2013. It is
clear that at the time of the said status quo order of 07.07.2013, the Writ
Petitioner was absent from his work station without authorization.
iii.
Though
the Writ Petitioner received the letter dated 20.08.2013, he did not bother to
reply to the said letter and thereby defied the service rules and authority of
the School & College. Though the Writ Petitioner claims that he submitted a
certificate of fitness dated 20.08.2013 given by Dr. S.C. Dhar, actually he did
not. Rather he remained absent from the School & College as earlier.
iv.
The
Writ Petitioner now most cunningly claims all benefits, yearly increments and
Eid bonuses including his salaries as arrears for a time during which he was
absent without authorization. The Writ Petitioner in fact is not entitled to
claim the same for the period as he remained absent in the School &
College.
v.
The applicant did not get the copy of the order dated
07.07.2013 through court or from any reliable source. The Writ Petitioner also
did not submit any copy of the same to this applicant. Even he did not mention
the matter of the said order dated 07.07.2013 in his letter dated 30.07.2013
written to this applicant. The School & College authority was kept in dark
about the said order. Yet the Writ Petitioner has made false averments and
submissions on these points without hesitation.
vi.
This Hon’ble Court gives protection only to
those people who come to this Court with clean hands. The Writ Petitioner did
not come in clean hands to take recourse of law. He violated the terms and
conditions of his appointment letter as well as service rules of the School
& College which were briefly pointed out in the letter of the Governing
Body dated 16.10.2014.
A copy of which is attached
herewith as Annexure 3.
vii.
In
the said letter of 16.10.2014, the School & College authority has given
detailed account of various written allegations against the Writ Petitioner
filed by the teachers and staffs regarding harassment to the female colleagues
by way of objectionable gesturing, posturing and verbal communication and
misappropriation of fund with a lot of anomalies in respect of his assigned
job. Details of the responses given by the Writ Petitioner against those allegations
and actions taken by the Governing Body in those cases were also presented in
the said letter of 16.10.2013. Given the situation the petitioner found himself
unfit both physically and morally. Having serious moral degradation and breach
of service rules, the Writ Petitioner started to find tricky ways for enjoying
financial and other benefits from the School & College authority very
unlawfully. At the same time he remained absent from the School & College
to avoid such unavoidable circumstances.
viii.
The Writ Petitioner misled the School & College
authority claiming that he has required experience for having appointment in
the post of Principal. But as of today he could not include his name in the
M.P.O by submission of necessary papers to the respondent Nos. 1-4 of the
instant Writ Petition. The School & College Authority is not in a position
to allow a teacher to continue his service as Principal like the petitioner for
indefinite period without inclusion of his name in the M.P.O. So the Writ Petitioner’s
service is liable to be terminated.
ix.
The
aforesaid activities of the Writ Petitioner deserve termination from the
service as per Service Rules. Though series of actions and steps have already
been taken against him, the School & College authority shows lenient view
toward him believing the information given by him, especially considering his
illness. Moreover, he is given much time to correct himself. But he remains
incorrigible. When the authority finds no other alternatives except his
termination from service the petitioner started beating around the bush just to
escape himself from the allegations lodged against him. Copies of the
appointment letter, allegations, show-cause notices and letters, and Mercy
petitions are annexed herewith and marked as Annexure-4-series.
19. That it is submitted that the
School & College is a non government higher secondary educational
institution. According to rules of higher secondary educational institution, a
teacher needs to have an experience of 12 years teaching including 5 years as
Assistant Professor to include his name in the Monthly Payment Order (M.P.O).
But the Writ Petitioner has no such experience and hence no right to get his
name included in the M.P.O. So, the instant Rule has no legal force and
therefore it is liable to be discharged for ends of justice.
20. That the submissions as well as
grounds as enumerated in this Writ Petition are all vague, baseless, misleading
and misconceived and are not sustainable in the eye of law.
21. That the respondent No. 5 craves
kind leave of this Hon’ble Court to swear affidavit with the photocopy of the
annexure since original copy of the annexure is lying with the petitioner.
22. That it is
submitted that under the above facts and circumstances it is crystal clear that
the Writ Petitioner has no required experience to include his name in the
M.P.O. The impugned letter was issued on 06.06.2011. In the meantime a long
time has elapsed. But the Writ Petitioner miserably failed to show his expected
experience to include his name in the M.P.O. either to the respondent Nos.1-4
or to the respondent No.5. In fact, there is illegality in the impugned letter
and as such the Rule issued by the Hon’ble Court is liable to be discharged and
the status quo as passed during issuance of the Rule and the Direction Order
shall also be liable to be vacated with cost.
23. That the statements made in this
application are true to my knowledge and belief.
Prepared
in my office
………………….
(H.M.
Khaleq)
Advocate
Solemnly
affirmed before me by the said deponent on this 11th day of January 2015
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(H.M. Khaleq)
Advocate
Membership No 3907
Hall Room No 216 (Annex)
|
8.
Affidavit-in-Reply by the Writ
Petitioner (15.04.2015)
On 15
April 2015, the Writ Petitioner submitted a written affidavit in reply to the
affidavit in opposition filed by the respondent No.5 (Governing Body of the
School & College). Following is the draft of the Affidavit-in-Reply:
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
Md
Salah Uddin Ahmed Khan, son of Mohammad Saber, Principal of the Chittagong Technical
School and College, P/S - Rauzan, District - Chittagong ………… Petitioner
- VERSUS –
Bangladesh
and others ……………… Respondents
AFFIDAVIT-IN-REPLY TO THE
AFFIDAVIT-IN-OPPOSITION
I,
Md. Salah Uddin Ahmed Khan, son of Mohammad Saber and Roshida Begum, Principal
of the Chittagong Technical School and College, Police Station- Rauzan,
District- Chittagong; a Bangladeshi national, aged about 59 years, by faith
Muslim, by profession- teacher, national ID No. ………… do hereby solemnly affirm
and say as follows:
1.
That I am the petitioner of this writ
petition and as such I am fully acquainted with the facts and circumstances of
the case and otherwise competent to swear this affidavit.
2.
That
I have received copies of the affidavit in opposition of the respondent No 5 to
the instant writ petition sworn on 11.01.2015, supplementary affidavit in
opposition received on 18.01.2015 and another supplementary affidavit in
opposition sworn on 22.01.2015. I have gone through the said affidavit in
opposition and the supplementary affidavit in opposition and have understood
the content thereof. I have been advised to controvert only those statements of
the said affidavit in opposition and the supplementary affidavit in opposition
as are necessary for disposal of the same and the statements which are not
specifically admitted herein shall be deemed to have been denied by me.
3.
That
the statements made in paragraph No 1 of the said affidavit in opposition call
for no comments.
4.
That
the statements made in paragraph no 2 of the affidavit in opposition are
matters for the respondent No 5 to prove.
5.
That
the statements made in paragraph No 3 of the said affidavit in opposition
clearly show the malicious attitude of the respondent No 5 to allow him to join
his office of the Principal of Chittagong Technical School and College, yet he
was being denied the opportunity to resume functioning as the Principal of the
said School and College on the flimsy plea that the petitioner was on medical
leave while the order of status quo was passed in the instant writ petition on
07.07.2013. As a matter of fact, another Bench of this Hon’ble Court
categorically held in the instant writ petition vide Order dated 30.09.2014
that “such conduct of the respondent No 5 is contemptuous and direct violation of
the ad interim order issued by this Court at the time of issuance of the Rule”.
The said Division Bench further observed that the ad interim Order of status
quo dated 07.07.2013 passed in the instant writ petition at the time of
issuance of the Rule “means that the functioning of the petitioner as the
Principal of the said College cannot be disturbed by the respondent No 5 or any
other authority unless it is ordered by this Court.” In such view of the
matter, the statements made in paragraph No 3 of the affidavit in opposition
are probably wrong and, hence, denied.
6.
That
the statements made in paragraph No 7 of the said affidavit in opposition are
false, misleading and, hence, denied. It is categorically stated that before
2010, the requirement for getting the pay scale of a Principal was 12 years’
experience as Lecturer including 5 years’ experience as Assistant Professor.
Moreover, at the relevant time the MPO Guidelines provided that if someone was
not eligible to get a particular scale, he/she may be granted a lower scale if
he acquired the required qualification for that scale. Hence, when the
petitioner applied for the scale of Principal of Sayeda Jahan Memorial College,
Bakalia, Chittagong, he did not possess the requisite experience as Assistant
Professor for 5 years’. As such the petitioner was given the scale of Assistant
Professor being the scale below the scale of Principal. Hence, although the
petitioner working as the Principal of Sayeda Jahan Memorial College, Bakalia,
he accepted the scale of an Assistant Professor as per guidelines. After 2010,
however, the requirement of having 5 years’ experience as Assistant Professor
has been removed and, at present, the only requirement is 12 years’ experience
as Lecturer. Hence since the petitioner possesses more than 25 years’ of
experience as Lecturer, he is very much eligible to get the scale of Principal.
It is also stated that the petitioner submitted all the required documents to
the concerned authorities before joining as the Principal of Chittagong
Technical School and College. This is very much conspicuous from the relevant
M.P.O sheets (Annexures C, C1 and D to the Writ Petition) all of which contain
seal and signatures of the respondent No 5.
7.
That
the statements made in paragraph No 9 the said affidavit in opposition are
false, misleading, and hence, denied. It is categorically stated that the
petitioner being fully qualified for the post of the Principal of Chittagong
Technical School and College, was offered the job at the first place upon verification
of all his documents and other credentials.
8.
That
the statements made in paragraph No 12 of the said affidavit in opposition are
false, misleading and, hence denied. It is categorically stated that the
petitioner being fully qualified for the said post of Principal, and being
fully satisfied with his credentials, the respondent No 5 made a request to the
Director General of the Directorate of Secondary and Higher Secondary Education
for granting government portion of the salary in favor of the petitioner by way
of inclusion of his name in the Monthly Payment Order (M.P.O) list as the
Principal of Chittagong Technical School and College.
9.
That
the statements made in paragraph No 13 of the said affidavit in opposition are
false, misleading and, hence, denied. The petitioner herein reiterates the
statements made in paragraph No 16 of the writ petition.
10. That the statements made in
paragraph Nos 15-17 of the said affidavit in opposition are false, misleading
and, hence, denied. These are mere repetitions of some of the earlier
statements and the petitioner has replied to the same in the preceding
paragraphs.
11. That the statements made in
paragraph Nos 18(i)-(v) of the said affidavit in opposition arte false,
concocted, misleading and, hence, denied. It is categorically stated that the
petitioner suffered a cardiac arrest on 02.05.21013 and, as such, he sought
medical leave on 09.05.2013. Moreover, the petitioner has never been engaged in
any illegal activities either in the School & College in question, or anywhere
else in his entire life. The petitioner submitted a doctor’s certificate from
Dr. S.C. Dhar of Chittagong Medical College as required by the respondent No 5
vide letter dated 20.08.2013. Yet, the respondent No 5 did not allow the
petitioner to resume functioning as the Principal of Chittagong Technical
School and College. Since joining the said post of Principal, the petitioner
regularly received salary, all service benefits, annual increments, Eid bonuses
etc till he suffered a cardiac arrest on 02.05.2013. Although an Order of
status quo passed in the instant writ petition at the time of issuance of the
Rule on 07.07.2013 means that the functioning of the petitioner as the
Principal of the said College cannot be disturbed by the respondent No 5 or any
other authority unless it is ordered by this Court as held in this writ
petitioner vide order dated 30.09.2014,yet in utter defiance of a specific
direction of this Hon’ble Court vide order dated 30.09.2014 the respondent No 5
in a most contemptuous manner has refrained from paying the same to the
petitioner till date. On the other hand, ther respondent No 5 in a most
audacious manner now claims that the petitioner is not entitled to the same for
the period he had not been working, whereas admittedly the petitioner applied
for resumption of his functions from 30.07.2013 but he was not allowed to do so
by the respondent No 5 himself in a most mala
fide manner.
12. That the statements made in
paragraph No 18 (vi) – (ix) of the said affidavit in opposition are false,
concocted, misleading and, hence, denied. It is categorically stated that the
petitioner has very much come with clean hands before this Hon’ble Court. The
letter dated 16.10.2014 written by the respondent No. 5 contains all false
accusations made up subsequent to filling of the instant writ petition out of
grudge against the petitioner by the respondent No 5. The petitioner was neither
served with any copies of the complaints allegedly made by female
teachers/staff of the said School & College, nor did the authority start
any proceedings against the petitioner as these fabricated documents did not
exist earlier at all. These have been created for the purpose of maligning the
character of the petitioner for using in the instant writ petition simply to mislead
this Hon’ble Court. These are malicious in nature and contain serious
defamatory statements of made stories which did not ever occur. The petitioner
still reiterates that he has the requisite qualification for enlistment in the
M.P.O. in the scale of Principal as he has got more than 25 years’ of teaching
experience as Lecturer. It is categorically stated that the petitioner is a
renowned teacher in the Chittagong area with vast experience in teaching and he
possess a very strong moral character with high educational qualifications. He
has never violated any terms and conditions of his services with any of the
school/colleges he taught in his life and never ever in his life any proceeding
were initiated against him involving allegations of moral turpitude. The
allegations made herein are false, frivolous, made up and, hence, again
categorically denied.
13. That the submission made in
paragraph No 21 are baseless, misconceived and, hence, not tenable in law
proper to which will be given at the time of hearing.
14. That the statements made in
paragraph No. 3 of the supplementary affidavit-in-opposition are false,
concocted, misleading and hence, denied. As stated categorically above, the
M.P.O., guidelines published on 04.02.2010 only required 12 years’ experience
as Lecturer for being enlisted in the scale of Principal and the petitioner
having more than 25 years’ of experience as Lecturer is very much qualified to
get the scale of a Principal.
15. That the statements made in
paragraph Nos. 2-3 of the said supplementary affidavit-in-0opposition sworn on
22.01.2015 are misleading, and hence, denied. Proper reply to some similar
statements have already been given in the preceding paragraphs and the
petitioner reiterates the same here.
16. That the statement made in
paragraphs Nos. 1-15 are statements of facts which are true to my knowledge and
information derived from the records of the case, which I verily believe to be
true and the rest are the submissions before this Hon’ble Court.
Prepared
in my office
………………….
(Hasan
Rashid Chowdhury)
Advocate
Solemnly
affirmed before me by the said deponent on this 15th day of April, 2015
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(Hasan Rashid Chowdhury)
Advocate
Membership No 3567
Hall Room No 330 (Old) S.C.B.B
|
9.
Supplementary Affidavit of the Petitioner
(26.04.2015)
On 26th
of April 2015, immediately after filling the affidavit-in-reply, the Writ
Petitioner filed a supplementary affidavit annexing all the experience
certificates substantiating his claim of 25 years’ of teaching experience.
Following is the draft of the affidavit.
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
Md
Salah Uddin Ahmed Khan, son of Mohammad Saber, Principal of the Chittagong
Technical School & College, P/S - Rauzan, District - Chittagong ………… Petitioner
- VERSUS –
Bangladesh
and others ……………… Respondents
SUPPLEMENTARY AFFIDAVIT ON BEHALF
OF THE PETITIONER
I,
Md. Salah Uddin Ahmed Khan, son of Mohammad Saber and Roshida Begum, Principal
of the Chittagong Technical School & College, Police Station- Rauzan,
District- Chittagong; a Bangladeshi national, aged about 59 years, by faith
Muslim, by profession- teacher, national ID No. ………… do hereby solemnly affirm
and say as follows:
1.
That I am the petitioner of this writ
petition and as such I am fully acquainted with the facts and circumstances of
the case and otherwise competent to swear this affidavit.
2.
That
some important facts with documents are required to be brought to the attention
of this Hon’ble Court specially and, as such, there is a need to file this
supplementary affidavit.
3.
That
the petitioner was appointed in the Chittagong Public School and College as
Lecturer vide appointment letter dated 20.01.1987. He continued teaching in the
said college till 04.03.2004. He used to receive M.P.O in the said college
since 1987 till 2004 under Index No. 031852. Thereafter, he took admission in
M. Phil course under the University of Chittagong. After successful completion
of M. Phil Course (Session: 2005-2006), the petitioner returned to his teaching
profession and joined the Mirza Gaus College on 01.04.2006 as the Principal.
The petitioner continued teaching as the Principal in the said college till
31.05.2007. Thereafter, the petitioner joined the Monsaf Nagar College on
04.10.2007. He joined the said college as the Principal and continued there
till 02.05.2008. Before joining the present college, the petitioner also served
as the Principal in Sayeda Jahan Memorial College as the Principal from
03.05.2008 till 15.01.2011. When the petitioner was serving in Sayeda Jahan
Memorial College as the Principal, he was enlisted in the M.P.O and received
Government portion salary in the said college till January 2011. As such, the
petitioner has teaching experience of more than 25 (twenty five) years and he
is legally eligible to be considered for M.P.O as the Principal of the present
college.
Photocopies
of the appointment letters as referred above and other relevant documents are
annexed hereto and collectively marked Annexure
– I series.
4.
That
the instant supplementary affidavit may kindly be formed part of the original
writ petition.
5.
That
the statement made in paragraphs No. 1-4 are statements of facts which are true
to my knowledge and information derived from the records of the case, which I
verily believe to be true and the rest are the submissions before this Hon’ble
Court.
Prepared
in my office
………………….
(Hasan
Rashid Chowdhury)
Advocate
Solemnly
affirmed before me by the said deponent on this 26th day of April 2015
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(Hasan Rashid Chowdhury)
Advocate
Membership No 3567
Hall Room No 330 (Old) S.C.B.B
|
10. Affidavit-of-Compliance
by the School & College (15.05.2015)
At
the hearing, it was argued that the respondent Governing Body cannot be allowed
to contest the case on merit unless and until it shows that it complied with
the status quo and direction order of the Hon’ble Court. Therefore, the
Respondent No. 5, the Governing Body of the School and College, was required by
the Hob’ble Court to submit an Affidavit-of-Compliance with the status quo
order and direction order. Roma Kanti Singha, a Lecturer of the School and
College filed an affidavit of compliance on behalf of the School and College on
5th May 2015. In that affidavit, the School & College authority
basically tried to show that the Writ Petitioner has been already paid more
than his dues and the School and College authority has a claim of balances
against him. As regards, the M.P.O enlistment, it was claimed that it was the
responsibilities of the respondent Nos. 1-4. Following is the draft of the
Affidavit of Compliance:
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
Md
Salah Uddin Ahmed Khan ……….. Petitioner
-VERSUS-
Government
of Bangladesh and others ……….. Respondents
AFFIDAVIT–OF-COMPLIANCE
ON BEHALF OF RESPONDENT NO. 5
I,
Roma Kanti Singha, son of Parimal Kanti Singha and Nomita Singha, Lecturer,
Chittagong Technical School & College, P/S- Rauzan, Dist- Chittagong aged
about 28 years, Profession- teacher by faith Hindu, by nationality Bangladeshi,
national ID No. ………… do hereby solemnly affirm and say as follows:
1. That I am the authorized person
on behalf of the respondent No.5 and being aware of the facts and circumstances
of the case and as such I am competent to swear this affidavit.
Photocopy
of the said letter of authority is annexed herewith and marked as Annexure-5.
2. That the affidavit of compliance
arises from the order dated 30.09.2014 passed in the aforesaid Writ Petition by
a vacation Bench of this Hon’ble Court upon an application of the Writ
Petitioner.
3.
That it is stated that with rtegard to refusal by the School
& College to join him in response to the joining letter of 30.07.2013, it
is stated that the School & College authority was not aware of the afrosaid
Writ nor did the Writ Petitioner disclosed this to the same. Since fitness
certificate annexed with the said re
joinder letter, was not in line of the advise of the doctor of the United
Hospital, where the writ petitioner took treatment, he was requested by the
respondent No.5 by letter dated 20.08.2013 to submit proper fitness certificate
to consider his re joininbg letter. Not responding to the said letter dated
20.08.2013 to submit proper fitness certificate to consider his re joining
letter. Not responding to the sadi letter dated 20.08.2013 the writ petitioner
filed an application for direction before this Hon’ble upon false statements
and obtained the said order dated 30.09.2013. Sicne the respondent No.5 had no
knowledge about the order of status quo dated 07/.07.2013 and since he did not
terminate the Writ Petitioner from the service the allegation of violation of
the same is not maintainable against him.
Photocopy of
the said re joinging letter and letter dated 20.08.2013 are annexed herewith
and marked as Annexure 6 and 7.
4. That the respondent No 5 did not
get copy of the order dated 30.09.2014 as of today through court. On 11.10.2014
the writ petitioner filed another joining letter annexing thereto a photocopy
of the certified copy of the School & College by calling him in his
Chittagong town residence. The clerk placed the same before the meeting of
Governing Body of the School & College on 16.10.2014.
5. That in response to joining
letter dated 11.10.2014 of the writ petitioner he Governing Body of the School
& College took a decision to give a letter to him by expressing their
opinion regarding the same. And accordingly, on 18.10.2014 a letter was issued
to him stating the fact that since the respondent No 5 did not get copy of the
order dated 30.09./2014 through court, the photocopy of the certified copy of
the same is not attested by the learned lawyer of the writ petitioner and the
writ petitioner did not submit the original certified copy of the said order
which he posses it would be risky to the authority to take step upon the
photocopy of the certified copy of the said order. By the said letter it was
also informed the writ petitioner that the order this Hon’ble Court must be
complied after getting the same through court or after submission of the
original certified copy of the said order by him.
Photocopy of the said letter
dated 16.10.2014 is neexed herewith and marked as Annexure 8..
6. That in response to aforesaid
letter dated 18.10.2014 the writ petitioner on 23.10.2014 submitted a certified
copy of the order dated 30.09.2014 to the office Assistant (clerk) as the way
stated earlier. The clerk gave the same to the School & College authority
on 25.10.2014, the opening day after Holiday for Hizri New Year. After going
through the same the authority found that the respondent No.5 was wrongly
identified in there and hence on 01.11.2014 another letter was given by the
respondent No.5 to the Writ Petitioner stating the following:
"Avcbvi cÖ`Ë
Av‡`‡k ewY©Z g‡Z †h `iLv‡¯Íi Dci wfwË K‡i Avcwb weMZ 30.09.2014 Zvwi‡L Av‡`k
nvwmj K‡i‡Qb Zrwel‡q KZ©…c‡¶i AvcwË Av‡Q
e‡U| Z_vwc gnvgvb¨ D”P Av`vj‡Zi Av‡`‡ki cÖwZ KZ©…c¶ h‡_ó kª×vkxj| gnvgvb¨
Av`vj‡Zi Av‡`k Agvb¨ Kivi gZ we›`ygvÎ a„óZv KZ©…c¶ jvjb K‡i bv| Z‡e 5 bs weev`x
wn‡m‡e AÎ cÎ †cÖi‡Ki cwiwPwZi mv‡_ Am½wZc~Y© nIqvq D³ mvwU©dvBW Kwci Av‡jv‡K
e¨e¯’v MÖnY Kiv SzwKc~Y© n‡e g‡g© AvksKv cÖKvk Ki‡Z eva¨ n‡”Q| †Kbbv, AÎ cÎ
†cÖiK Mfwb©s ewWi wm×v‡š—i Av‡jv‡KB KvR K‡i| Mfwb©s ewW Zvi K…ZK‡g©i Rb¨
AvBbMZfv‡e cÖwZ÷vb Z_v mswk÷ wbqš¿YKvix KZ©…c‡¶i wbKU `vqe×| ZvB fwel¨r `vq
Gov‡Z KZ©…c¶ mwVK cwiwPwZ m¤^wjZ Avcbvi Kw_Zg‡Z evsjv‡`k mywcÖg †Kv‡U©i
nvB‡KvU© wefvM KZ©…K wiU wcwUkb bs- ... .../2013 G weMZ 30/09/2014 Zvwi‡L
cÖPvwiZ Av‡`‡ki MÖnY‡hvM¨ Kwc AÎ cÎ †cÖi‡Ki eive‡i `vwLj Ki‡Z ejv nj| D³iƒc
Av‡`k cvIqvi ci KZ©…c¶ h_v mg‡q cÖ‡qvRbxq c`‡¶c MÖnY Ki‡eb| Ab¨_vq KZ©…c¶‡K
gnvgvb¨ D”P Av`vjZ n‡Z mivmwi Av‡`k cÖvwßi A‡c¶vq _vK‡Z n‡e|"
7. That on 06.11.2014 the Writ
Petitioner received the said letter. After receiving the same as of today he
did not submit any corrected copy of the said order to the respondent No.5 and
the respondent No.5 also did not get copy of the same through court. In spite
of that the School & College authority being satisfied about the identity
of the respondent No 5 through their engaged lawyer took decision in the
meeting held on 03.05.2015 t6o accept the joining letter of the writ petitioner
honoring the Hon’ble Court’s order and accordingly on 04.05.2015 a letter was
issued to him through registered post.
Photocopy
of the letter dated 04.05.2015 is annexed herewith and marked as Annexure 9.
8. That the respondent No 5 craves
your Lordships kind permission to swear Affidavit with the photocopies of the
Annexure by the authorized person.
9. That with regard to direction of
payment of salaries, the yearly increments and Eid bonuses to the writ
petitioner since May, 2013 the respondent No. 5 beg to submit that this School
& College is a non government Educational institution. A teacher of a non
government educational institution gets a portion of his salary and other
benefits from the government and the rest of the portions from the School &
College.
10. That it is submitted that the
matter of giving the government portion of salary, Eid bonuses and yearly
increments to the writ petitioner will be exclusively decided by the
respondents Nos. 1-4. As per the condition of his appointment letter, he was
entitled only to get additional portion of his salary and benefits which have
already been paid in advance.. The condition No 9 of the Appointment letter of
the writ petitioner is as follows:
"miKvwi wewa Abyhvqx Avcbv‡K Gg wc
I fz³ nIqvi e¨e¯’v MÖnY Ki‡Z n‡e| Z‡e miKvi †_‡K cÖvß A‡_©i AwZwi³ cÖvc¨
Avcbv‡K ¯‹zj Znwej †_‡K cwi‡kva Kiv n‡e|"
11. That it is further submitted that
since 09.02.2011, the joining date of the Writ Petitioner was entitled to get
Tk 1,26,736.36 from the School & College in addition to the government
portion. But the authority gave him Tk 7,65,55,36/- till May, 2013 in which Tk
6,38,814 was given as advance (refundable) which was not repaid by him yet. The
additional amount is refundable to the School & College.
12. That the writ petitioner’s claim
for salary and other benefits during period of May 2013 till July 2013 are not
admissible since he was absent without authorization during that period.
13. That it is most respectfully
submitted that admittedly the respondent No.5 extended all possible assistance
to the Writ Petitioner to apply for inclusion of his name in the M.P.O, the
government’s refusal to enlist him there and non-payment of the government
portion of his salary and other benefits do not invite any responsibility on
the respondent No 5.
14. That the respondent No 5 begs to
submit further that due to repeated unprofessional behaviors, the writ
petitioner already failed to earn confidence of the School & College
authority as well as his colleagues, students and guardians. Rather some of his
female colleges made written allegation of sexual harassment against him which
are very much serious and also tantamount to professional misconduct. The
School & College authority is under pressure from the fellow teachers and
guardians to take action against the writ petitioner.
15. That in the circumstances stated
above it is humbly submitted that as a law abiding person the respondent No 5
pays utmost honor to this Hon’ble Court. Showing highest horror to order dated
30.09.2014 of this Court the respondent No 5 already complied with the
direction in re4spect of that portion which is within his jurisdiction. But
since the direction relating to payment of salaries, increments and Eid Bonuses
the respondents No 5 craves an opportunity to submit further that the same are
not fully within his jurisdiction since the respondent No 5 already paid more
salary to the writ petitioner than his entitlement from the School &
College, he begs to pray before this Hon’ble Court to direct the writ
petitioner to refund the excess amount paid to him.
16. That the statements made in this
application are true to my knowledge and belief.
Prepared
in my office
………………….
(H.M.
Khaleq)
Advocate
Solemnly
affirmed before me by the said deponent on this 15th day of May 2015
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME
COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(H.M. Khaleq)
Advocate
Membership No 3907
Hall Room No 216 (Annex)
|
11. Affidavit-in-Reply
to the Affidavit-of-Compliance (25.05.2015)
On
25.05.2015 the Writ Petitioner submitted a written affidavit-in-reply to the
affidavit of compliance submitted by the respondent No.5. It was claimed by the
Writ Petitioner that he was not given the chance to resume his office. Nor was
he paid his salaries and increments till May 2013.
IN
THE SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION
(SPECIAL
ORIGINAL JURISDICTION)
Writ
Petition No….. of 2013
IN THE MATTER OF:
Md
Salah Uddin Ahmed Khan, son of Mohammad Saber, Principal of the Chittagong
Technical School & College, P/S - Rauzan, District - Chittagong ……………Petitioner
- VERSUS –
Bangladesh
and others ……………… Respondents
AFFIDAVIT-IN
REPLY TO THE AFFIDAVIT-OF-COMPLIANCE
I,
Md. Salah Uddin Ahmed Khan, son of Mohammad Saber and Roshida Begum, Principal
of the Chittagong Technical School and College, Police Station- Rauzan,
District- Chittagong; a Bangladeshi national, aged about 59 years, by faith
Muslim, by profession- teacher, national ID No. ………… do hereby solemnly affirm and
say as follows:
1.
That I am the petitioner of this writ
petition and as such I am fully acquainted with the facts and circumstances of
the case and otherwise competent to swear this affidavit-in-reply.
2.
That
I have gone through the said affidavit of compliance served by the respondent
No. 5 and have understood the content thereof. I have been advised to
controvert only those statements of the said affidavit in opposition and the
supplementary affidavit in opposition as are necessary for disposal of the same
and the statements which are not specifically admitted herein shall be deemed
to have been denied by me.
3.
That
the statements made in paragraph Nos. 3-9 of the affidavit of compliance are
not correct, apparently misleading and, hence denied. It is, however,
emphatically stated that as per the Order of status quo dated 07.07.2013 passed in the instant writ petition,
the petitioner is entitled to received his salary, yearly increment and other
admissible benefits from the respondent in question. Since the petitioner was
entitled as such, the School and College authority made payment of his salary,
different increments and other allowances from February 2011 till April, 2013
as it is evident from the statement of account issued by the Sonali Bank
Limited, Rauzan Branch, Chittagong. As such the payments made for a period from
February 2011 till April 2013 are not any kind of advance payments, they were
paid as the petitioner was entitled to such payment as per his appointment
letter. Normally, school and college authority continue to pay as such until
enlistment of the concerned teacher in the M.P.O. for receiving government
portion of his salary and other admissible benefits.
Copy
of the said statement of account as on 14.05.2015 issued by the Sonali Bank
Limited, Rauzan Branch, Chittagong and a draft statement regarding claim of the
petitioner are annexed hereto and respectively marked as Annexure 6 and 7.
4.
That
it is stated that pursuant to a letter dated 04.05.2015 issued by the college
authority, the petitioner went to the college to join his office as the
Principal of the said college. Although by the said letter dated 04.05.2015,
the college authority categorically informed the petitioner that his joining
letter was accepted but the petitioner was not allowed to join and resume his
office. The petitioner was also denied to enter his office and function as the
Principal of the college. However, the petitioner by a letter dated 10.05.2015
informed the respondent No. 5 about the said matter.
Copy
of the said letter dated 10.05.2015 is annexed hereto and marked as Annexure 8.
5.
That
the submissions made in the said affidavit-of-compliance being misconceived do
not merit any consideration.
6.
That
it is submitted that the affidavit-of-compliance filed by the respondent No 5
is not a compliance proper of the Order dated 30.09.2013 passed by this Hon’ble
Court in the instant writ petition.
7.
That
the statement made in paragraphs No. 1-6 are statements of facts which are true
to my knowledge and information derived from the records of the case, which I
verily believe to be true and the rest are the submissions before this Hon’ble
Court.
Prepared
in my office
………………….
(Hasan
Rashid Chowdhury)
Advocate
Solemnly affirmed before me by the said deponent on
this 25th day of May, 2015
…………………………
COMMISSIONER
OF AFFIDAVITS
SUPREME COURT OF BANGLADESH
HIGH
COURT DIVISION, DHAKA
|
…………………
Deponent
The Deponent is known to me and identified by me
………………….
(Hasan Rashid Chowdhury)
Advocate
Membership No 3567
Hall Room No 330 (Old) S.C.B.B
|
12. Model
Submission on behalf of the Writ Petitioner
My
Lords, this is a Writ Petition for enforcement the petitioner’s fundamental
rights under Article 102(1) of the Constitution of Bangladesh and seeking a mandamus upon the respondents to enlist
the petitioner in the Monthly Payment Order (M.P.O). My Lords, the petitioner also seeks an order
upon the respondent Chittagong Technical School and College authority to
maintain status quo in relation to the post of Principal of the said School and
College until the disposal or discharge of the instant writ petition. The
Petitioner apprehends that unless such a direction is given, the School and
College authority may terminate petitioner and create a situation that may make
the instant writ infractuous and thereby vitiate the fundamental rights of the
petitioner guaranteed by the Constitution of Bangladesh. The petitioner
therefore prays that the Rule Nishi issued by a Division Bench of the Hon’ble
Court on 07.07.2013 made absolute by ordering the respondent Nos 1-4 to include
the petitioner’s name in the M.P.O and pay the government portion of his
salaries and other benefits also ordering respondent No 5 to allow the
petitioner to resume his office and pay his salaries and other benefits in
arrear since May 2013.
My
Lords, the Writ Petitioner was appointed the Principal of Chittagong Technical
School and College on 15.01.2011 on a monthly pay scale to the tune of Tk
22,250 to 32,250/-. As per the terms and conditions of the appointment letter,
the School & College Authority was to pay as such until enlistment of the
concerned teacher in the M.P.O. for receiving government portion of his salary
and other admissible benefits. After the enrollment in M.P.O., the School &
College authority was to pay only the portion remaining after the government
portion. Accordingly the School & College authority’s claim of paying their
portion in advance is baseless. The copy of the statement of the Writ
Petitioner’s bank account as on 14.05.2015 issued by the Sonali Bank clearly
establishes the point. Clearly, it is same understanding on the basis of which
the Respondent No. 5 argued in his application for vacation of the interim
order: “The School & College Authority is not in a position to allow a
teacher to continue his service as Principal like the petitioner for indefinite
period without inclusion of his name in the M.P.O.”
My
Lords, as regards the respondent Assistant Director (College)’s refusal to
enlist the petitioner in the M.P.O., it is submitted that such refusal is evidently
the result of a total non application of mind. There could be no justification
for denying a teacher’s M.P.O. enlistment who has been enlisted twice earlier
as teacher of two different private educational institutions as is evidenced by
the photocopies of earlier Index Nos. 013852 and 3082122. As is clearly
established by the certificates of the Writ Petitioner’s twenty five years’
experience, there could be no plausible reason whatever to refuse enlistment of
the Petitioner in the M.P.O. The refusal of enlistment is evidently an
arbitrary one. My Lords, reference may be made to the Appellate Division
verdict in Mansurul Aziz & another v. Secretary M/O L.A. & L.R. 1981BLD
(AD) 75 wherein it was held that arbitrary exercise of power is itself mala
fide and it is a malice in law. In Nasiruddin v. Government of
Bangladesh 32 DLR (1980) (AD) 266, it was held that a mala fide act
is not protected from challenge before law. Appellate Division disapproved of mala
fide administrative act in Kh. EHtesham Uddin Ahmed v. Bangladesh 1981
BLD (AD) 107 also.
My
Lords, the claim of a pre-requirement of 12 years’ experience as Lecturer and 5
years’ experience as Assistant Professor is not a clearly established one.
Confusion, if there be any, must have been removed after 2010. It is categorically stated that before 2010, the
requirement for getting the pay scale of a Principal was 12 years’ experience
as Lecturer including 5 years’ experience as Assistant Professor. After 2010,
however, the requirement of having 5 years’ experience as Assistant Professor
has been removed by the M.P.O., guidelines published on 04.02.2010. At present,
the only requirement is 12 years’ experience as Lecturer. Hence since the
petitioner possesses more than 25 years’ of experience as Lecturer, he is very
much eligible to get the scale of Principal.
My Lords, the allegations of the respondent No 5 are made
up subsequent to filling of the instant writ petition out of grudge against the
petitioner by the respondent No 5. The petitioner was never served with any
copies of the complaints allegedly made by female teachers/staff of the said
School & College, nor did the authority start any proceedings against the
petitioner as these fabricated documents did not exist earlier at all. These have
been created for the purpose of maligning the character of the petitioner for
using in the instant writ petition simply to mislead this Hon’ble Court. These
are malicious in nature and contain serious defamatory statements of made
stories which did not ever occur. The petitioner still reiterates that he has
the requisite qualification for enlistment in the M.P.O. in the scale of
Principal as he has got more than 25 years’ of teaching experience as Lecturer.
It is categorically stated that the petitioner is a renowned teacher in the
Chittagong area with vast experience in teaching and he possess a very strong
moral character with high educational qualifications. He has never violated any
terms and conditions of his services with any of the school/colleges he taught
in his life and never ever in his life any proceeding were initiated against
him involving allegations of moral turpitude. The allegations made herein are
false, frivolous, made up and, hence, again categorically denied.
My
Lords, although an Order of status quo
passed in the instant writ petition at the time of issuance of the Rule on
07.07.2013 means that the functioning of the petitioner as the Principal of the
said College cannot be disturbed by the respondent No 5 or any other authority
unless it is ordered by this Court as held in this writ petitioner vide order
dated 30.09.2014,yet in utter defiance of a specific direction of this Hon’ble
Court vide order dated 30.09.2014 the respondent No 5 in a most contemptuous
manner has refrained from paying the same to the petitioner till date. On the
other hand, the respondent No 5 in a most audacious manner now claims that the
petitioner is not entitled to the same for the period he had not been working,
whereas admittedly the petitioner applied for resumption of his functions from
30.07.2013 but he was not allowed to do so by the respondent No 5 himself in a
most mala fide manner.
My
Lords, given the circumstances, the Writ Petitioner humbly prays that the
Hon’ble Court to make the rule absolute by
declaring the memo No. 7G/93 (ka-3)/10/5733/2 dated 06.06.2011 issued by the respondent No.3 Assistant
Director refusing M.P.O. enlistment of the petitioner to have been issued
without lawful authority and is of no legal effect and directing the immediate
payment of government portion of the Writ Petitioner’s salary by way of
inclusion of his name in monthly payment order (M.P.O) list as the Principal of
Chittagong Technical School and College. The Hon’ble Court may further be pleased to direct the
respondent No. 5 to maintain status quo
in respect of the service of the petitioner as the Principal of Chittagong
Technical School and College, Rauzan, Chittagong and allow him to resume his
office and pay his arrear salaries, monthly increments and Eid bonuses.
13. Model Submission on behalf of the State
My
Lords, the case in hand deals with the refusal by the Assistant Director
(College), Directorate of Secondary and Higher Education to include the name of
the petitioner in the M.P.O. The rules regarding the eligibility for enlistment
in the M.P.O are clear. The M.P.O., guidelines published on 04.02.2010 requires
12 years’ experience as Lecturer for being enlisted in the scale of Principal.
Though the petitioner claims to have more than 25 years’ of experience in teaching,
it was never continuous one. Admittedly, he had a two years’ break in the
teaching during 2004-2006 which makes his fresh application for enrollment in
the M.P.O. as a Principal a bad one. It is the plain meaning of the M.P.O
guideline that for being qualified to get the scale of a Principal, one must
have 12 years’ of previous experience as Lecturer or five years’ of previous
experience as Assistant Professor. Starting his teaching career a fresh in
2006, the Writ Petitioner’s service was not continuous. He worked in Mirza Gaus
College, Monsaf Nagar College and Syeda Jahan Memorial College for different
duration and he never completed a continuous five years’ period as Assistant
Professor. Therefore in 2011, he could not be legally qualified to get a Principal’s
scale in the M.P.O. The Assistant Director (College) in the Directorate of
Secondary and Higher Education therefore rightfully refused the enlistment in
2011.
14. Model Submission on behalf of the School &
College
My
Lords, the respondent No. 5, the Chittagong Technical School & College
categorically claims that it done whatever remains to be done by it in relation
to the M.P.O enlistment of the petitioner. Admittedly, the School & College
authority have applied twice on behalf of the writ petitioner. Since the
petitioner lacks in requisite qualification for the M.P.O enlistment, the
Assistant Director (College) has refused the enlistment of the petitioner in
the M.P.O.
My
Lords, the School & College authority had nothing to do with the enlistment
in M.P.O. and as per the condition of his appointment letter, it is the
respondent of the writ petitioner to get him enlistment and it is impossible
for the School & College authority to continue to pay the whole amount of
his salaries and benefits indefinitely.
My
Lords, most alarmingly, the Writ Petitioner has failed to attain the confidence
and trust of his colleagues in the School & College. A huge lot of serious
and substantial allegations of mismanagement and corruption was filed against
the writ petitioner and the Governing Body of the School & College has
taken note of those and warned the petitioner on several occasions. Facing
those allegations, the writ petitioner starting evading his office and most
cunningly resorted to this Hon’ble Court and took an interim order of status quo keeping the School &
College authority completely ignorant of all those.
My
Lords, the conduct of the petitioner throughout the continuance of this
proceeding is malicious. This Hon’ble Court gives protection only to those people
who come to this Court with clean hands. The Writ Petitioner did not come in
clean hands to take recourse of law. He violated the terms and conditions of
his appointment letter. The Writ Petitioner misled the School & College
authority claiming that he has required experience for having appointment in
the post of Principal. But as of today he could not include his name in the
M.P.O by submission of necessary papers to the respondent Nos. 1-4 of the
instant Writ Petition. The School & College authority is not in a position
to allow a teacher to continue his service as Principal like the petitioner for
indefinite period without inclusion of his name in the M.P.O. So the Writ
Petitioner’s service is liable to be terminated.
My
Lords, the School & College authority took all possible steps to be aware
of the order of this Hon’ble Court and due to the writ petitioner’s non
cooperation and failure to submit the correctly identified certified copy of
the interim order of the Hon’ble court, the process of resumption was delayed.
Ultimately become sure of the order, the respondent No. 5 by a letter dated
04.05.2015, informed the petitioner that his joining letter was accepted but
the petitioner for reasons best known to him did not resume his office.
Given
the situation, it is most humbly prayed that your Lordships would graciously be
pleased to discharge the writ petitioner and pass an order vacating the order
of status quo dated 07.07.2013 and other order of direction dated 30.09.2014
and/or pass such order or further order or orders as your Lordships may deem
fit and proper.
15. Model Judgment
IN THE SUPREME COURT OF
BANGLADESH
High Court Dibvision
(Special Origianl Jurisidction)
Writ Petition No ……of 2013
IN THE MATTER OF:
An
application under Article 102(1) and (2)(a)(i)(ii) of the Constitution of
Peoples’ Republic of Bangladesh;
AND
IN
THE MATTER OF:
Md.
Salah Uddin Ahmed Khan, son of Mohammad Saber, Principal of the Chittagong
Technical School & College, P/S: Rauzan, Dist: Chittagong ….…… Petitioner
- VERSUS –
1. Bangladesh represented by the
Secretary, Ministry of Education, Bangladesh Secretariat, P.S. Shahbag,
District – Dhaka;
2. Director General, Directorate of
Secondary and Higher Education, Shikkha Bhaban, 16, Abdul Gani Road, Dhaka;
3. Assistant Director (College 3),
Directorate of Secondary and Higher Education, Shikkha Bhaban, 16, Abdul Gani
Road, Dhaka;
4. The Board of Intermediate and
Secondary Education, Chittagong, represented by its Chairman;
5. Chairman, Governing Body,
Chittagong Technical School and College, P.S.- Rauzan, District – Chittagong
……… Respondents
Present:
Mr
Justice Faizul Hoque
And
Mr
Jusitce Nur Mohammad
Md. Faizul Hoque, J: 1. This Rule was issued calling upon the respondents to
show cause as to why memo No. 7G/93 (ka-3)/10/5733/2
dated 06.06.2011 (Annexure A) issued by the respondent No.3 Assistant Director
refusing M.P.O. enlistment of the petitioner shall not be declared to have been
issued without lawful authority and is of no legal effect and why the
respondents shall not be directed for the immediate payment of government
portion of the salary by way of inclusion of his name in monthly payment order
(M.P.O) list as the Principal of Chittagong Technical School and College,
Rauzan, Chittagong.
2. Facts of the case in brief are that Mr. Md. Salah Uddin Ahmed Khan was
the Principal of Chittagong Technical School and College, Rauzan,
Chittagong. Starting his teaching career as a Lecturer in a private college in
1987, he used to receive M.P.O (Monthly Payment Order) till 2004. Monthly
Payment Order is a government list of private school and college teachers, a
major portion of whose salaries and other benefits are paid by the government.
Rest of the amount of their salaries and benefits are paid by the school and
colleges concerned. After a higher study break of two years, Mr Md. Salah Uddin
Ahmed Khan returned to his teaching career as the Principal of another private
college in 2006. After serving as Principal of several colleges, he again got
enlisted in the M.P.O in 2008 and continued to receive government portion of
his salary till January 2011. In February 2011, he joined the Chittagong
Technical School and College as Principal. The School & College authority
applied on his behalf for inclusion of his name in the M.P.O list as the
Principal of the School & College. The Assistant Director (College) in the
Directorate of Secondary and Higher Education, this time denied his enlistment.
By the time of this Writ Petition in May 2013, Mr Md
Salah Uddin Ahmed Khan developed sour relationship with some of his colleagues
and the School & College authority, the respondent No.5. On 05 May 2013, Mr
Khan filed this Writ Petition challenging the denial of his M.P.O. enlistment
and made the government officials and the School & College authority
respondents. Accordingly, the petitioner obtained an order of status quo against the School &
College authority. Later on he also obtained a direction order upon the School
& College authority asking them to allow the petitioner to resume his office
of Principal of the said college.
3. Governing Body of the School
& College therefore applied for vacation of the status quo and direction order. Being a failure, respondent School
& College authority entered a written affidavit in opposition. Advocate
H.M. Khaleq appeared on behalf of the School and College authority. Arguments
advanced by the respondent No. 5 may be stated briefly.
4. The School
and College has already done whatever remains to be done by it in relation to
the M.P.O enlistment of the petitioner. Admittedly, the School & College
authority have applied twice on behalf of the writ petitioner. Since the
petitioner lacks in requisite qualification for the M.P.O enlistment, the
Assistant Director (College) has rightly refused the enlistment of the
petitioner in the M.P.O. Absent M.P.O enlistment it was impossible for the
School & College authority to continue to pay the whole amount of his
salaries and benefits indefinitely.
The
School and College also alleged that the Writ Petitioner has failed to attain
the confidence and trust of his colleagues in the School & College. A huge
lot of serious and substantial allegations of mismanagement and corruption was
filed against the writ petitioner and the Governing Body of the School & College
has taken note of those and warned the petitioner on several occasions. Facing
those allegations, the writ petitioner starting evading his office and most
cunningly resorted to this Hon’ble Court and took an interim order of status quo keeping the School & College
authority completely ignorant of all those.
The
School and College authority then submitted that the conduct of the petitioner
throughout the continuance of this proceeding was malicious and he did not came
to the court with clean hands. As regards the delay in complying with the
status quo and direction order, the School & College submitted an affidavit
of compliance in which it was argued that the authority took all possible steps
to be aware of the order of this Hon’ble Court and due to the writ petitioner’s
non cooperation and failure to submit the correctly identified certified copy
of the interim order of the Hon’ble court, the process of resumption was
delayed. Ultimately become sure of the order, the respondent No. 5 by a letter
dated 04.05.2015, informed the petitioner that his joining letter was accepted
but the petitioner for reasons best known to him did not resume his office. The
Writ Petitioner, however denied the truth of the claim through an
affidavit-in-reply.
5. The learned Assistant Attorney General appearing on behalf of the
Respondent No. 3 strenuously argued that the M.P.O., guidelines published on
04.02.2010 requires 12 years’ experience as Lecturer for being enlisted in the
scale of Principal. Though the petitioner claims to have more than 25 years’ of
experience in teaching, it was never continuous one. Admittedly, he had a two
years’ break in the teaching during 2004-2006 which makes his fresh application
for enrolment in the M.P.O. as a Principal a bad one. It is the plain meaning
of the M.P.O guideline that for being qualified to get the scale of a
Principal, one must have 12 years’ of previous experience as Lecturer or five
years’ of previous experience as Assistant Professor. Starting his teaching
career a fresh in 2006, the Writ Petitioner’s service was not continuous.
6. Advocate Hassan Rashid Chowdhury appearing on behalf of the Writ
Petitioner denied all the material allegations raised by the respondent No 5
school and college authority. As regards the respondent Assistant Director
(College)’s refusal to enlist the petitioner in the M.P.O., it was submitted
that such refusal was evidently the result of a total non application of mind.
There could be no justification for denying a teacher’s M.P.O. enlistment who
has been enlisted twice earlier as teacher of two different private educational
institutions as is evidenced by the photocopies of earlier Index Nos. 013852
and 3082122.
7. A plain reading of the materials in hand and documents
and papers presented before the Court makes it clear that the Writ Petitioner
was admitted in the M.P.O. twice earlier vide Index Nos. 013852 and 3082122.
The arguments of continuity advanced by the state do not appear to have any
place within the four corners of the M.P.O guidelines published in 2010. What
the guideline requires is as simple as the language of the guidelines is. It
has been the consistent position of this court that where the language of the
law is clear there is no scope of interpretation or assertion of an intention
which is not clearly established. The honourable Appellate Division of the
Supreme Court was unequivocal in Abdul Kader v. Election Commissioner 58
DLR (AD) 71: “We are to interpret the law as it stands giving the section its
natural and ordinary meaning unless it admits of any other meaning (para 6)”
8. Given the clear position of law, the submission of
the Assistant Attorney General holds no ground and according we hold that the
refusal to enlist the Writ Petitioner in the M.P.O represents a total non
application of mind and hence void. We direct hereby the Respondent No 3 to
take immediate steps to enlist the Writ Petitioner in the M.P.O.
9. Since the Writ Petitioner is lawfully
entitled to be enlisted in the M.P.O the submissions made by the Respondent No.
5 School and College authority on the basis of his alleged failure to be
enlisted in the M.P.O also hold no ground. There is no reason whatever to deny
the Writ Petitioner resumption in his post of the Principal of the School and
College. We therefore direct the School and College authority to take positive
steps in that direction and pay him his salaries, incrememnts, Eid bonuses in
arrear till May 2013.
10. We, however, don’t pass any judgment on the
allegations of corruption, mismanagement and moral turpitude brought by the
School and College authority against the Writ Petitioner. These not being
subject matter of this writ, the School and College authority remains free to
investigate and, if appropriate, take necessary disciplinary action, including
a possible termination, against the Writ Petitioner. For now, it suffice for us
to hold that the Writ Petitioner is lawfully entitled to be enlisted in the
M.P.O and eligible to continue in his office untill allegations against him are
proved in due course.
11. In the result, this Rule is made absolute and the Respondents are
directed to take steps to this effect. Considering the facts and circumstances
of the case we pass no order as to cost.
Md
Nur Mohammad, JJ. : I
concur.
* M Jashim Ali Chowdhury is an Assistant Professor,
Department of Law, University of Chittagong. He may be reached at:
jashim.chy@gmail.com
.jpg)
No comments:
Post a Comment