Government Bangladesh and others Vs. ATM Mostafa Rashed and other, 2009

 Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Abdul Matin J

Government Bangladesh and others…………………….Petitioners

Vs.

ATM Mostafa Rashed and other………………………Respondents

 Judgment

February 16, 2009.

Lawyers Involved:

Md. Zahirul Islam, Advocate-on- Record-For the Petitioners.

AKM Shahidul Huq, Advocate-on-Record-For the Respondents.

Civil Petition for Leave to Appeal No. 1768 of 2008.

(From the judgment and order dated the 10th day of July, 2008 passed by the High Court Division in Writ Petition No. 7252 of 2006).

Judgment

Mohammad Fazlul Karim J.- This petition for Leave to Appeal is directed against the judgment and order dated 09.07.2008 passed by the High Court Division in Writ Petition No.7252 of 2006 making the Rule absolute.

2. The writ-petitioner No.1 is the principal of the Islamia Nesaria Senior (Alim) Madrasha and he was initially appointed in the post of Assistant Moulana and accordingly joined in the Madrasha on 08.09. 88 and the petitioner No.2 as a lec­turer, political science on 15.02.2002 and got their name enrolled in the M.P.O issued by the BANBBIS and have been receiving the partition of the salary grant­ed by the Government duly and regularly. The writ-petitioners while rendering their service to the utmost satisfaction all con­cerns were informed of an office order dated 04.08.2002 issued by the respondent No. 3 to withhold the payment of Government portion of the salary of the writ petitioners from 01.06.2002. The writ respondent No.2 forwarded a letter to the writ-petitioner intimating on 28.03.2006 that their prayer for releasing the Government portion of their salary could not be considered and thereby dis­missed their appeal with reference to ???????? ???????????? ??/??/???? ?? ???? ??????? ???????? ?? without assigning any cogent and reason and writ-petitioner challenging the aforesaid order Filed the said writ peti­tion before the High Court Division.

3. Mr. Md. Zahirul Islam, learned Advocate-on-Record, appearing for the petitioner submitted that regarding appointment of the respondents by an illegal Managing Committee was questioned and to find out the fact an inquiry was held by the District Education officer, Patuakhali. The inquiry report was sub­mitted on 10.06.2002 in holding that the appointment of the petitioner by the com­mittee being is illegal and the office of petitioner Nos.2 and 3 rightly stopped the payment of Government portion of the salary of the respondent Nos. 1-3; that the High Court Division did not consider whether the appointment was illegal or legal, rather, treating the appointment as legal made the rule absolute with direction to release the stopped salary and allowance. The learned Advocate Further submitted that the Title Suit No.254 of 2001 is pending before the Assistant Judge, Patuakhali regarding the question of illegitimate committee which requires determination of disputed question of fact on evidence in the High Court Division ought to have discharged the Rule.

4. The High Court Division upon hearing the petitioner made the Rule absolute holding that it could not find any reason for which the respondent No.2 has not been releasing the held up salary of the petitioners even after perusal of the opin­ion of the respondent Nos.5 and 6.

In view of the above, we find no sub­stance in the submissions of the learned Advocate for the petitioner.

Accordingly the petition is dismissed.

Ed.

Source : VII ADC (2010) 411

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