1. The Chapter Outline
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)
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.
(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‡¯—i 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
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