IN THE SUPREME COURT OFBANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 6568 of 2009
IN THE MATTER OF:
An application under Article 102 of the Constitution of the People’s Republic ofBangladesh.
-AND-
IN THE MATTER OF:
Nazrul Islam Rupoq
……. Petitioners
-Versus-
Board of Intermediate and Secondary Education,Chittagongand others
……Respondents
Mr. Rokanuddin Mahmud with
Mr.Md.Mutahar Hossain, Advocates
…..For the petitioner.
Mr. A.F. Hassan Ariff with
Mr. Zakir Hossain Munshi, Advocates
….For the respondent no.7.
Heard on 02.03.2010, 14.03.2010, 21.03.2010, 22.03.2010 & 24.03.2010.
Judgment on 25.03.2010.
Present:
Mr. Justice Moyeenul Islam Chowdhury
-And-
Mr. Justice A.K.M. Abdul Hakim
MOYEENUL ISLAM CHOWDHURY,J:
This Rule Nisi was issued calling upon the respondents to show cause as to why the approval accorded to the Special Type of Managing Committee for Ankur Society Girls’ High School, Nasirabad, Chittagong for a period of 2 (two) years as contained in Memo No. ChoShiBo/ Bidya/ Chotto:/ Moha(Paach)/ 691/ 2004 (Khondo-1) 2901(3) dated 24.09.2009 (Annexure-‘A’) should not be declared to be without lawful authority and of no legal effect and why the respondents should not be directed to cancel, revoke, withdraw or rescind the same and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. The petitioner’s case, as set out in the Writ Petition, in short, is as follows:
The Ankur Society Girls’ High School, Nasirabad,Chittagonghas been established and run under the patronage of the Chittagong Co-operative Housing Society Limited since 1964. The Intermediate and Secondary Education Ordinance, 1961 was promulgated for re-orgainizing the Intermediated and Secondary Education inBangladesh. In exercise of the powers conferred under Section 39 of the said Ordinance of 1961, the respondent no. 1 framed the Board of Intermediate and Secondary Education (Managing Committees of the Recognized Non-Government Secondary Schools) Regulations, 1977 (hereinafter referred to as the Regulations of 1977) for regulating the elections, constitutions and functions of the Managing Committees of the Recognized Non-Government Schools in Bangladesh. However, on 08.10.2006, the then Headmistress of the school applied to the respondent no. 1 for setting up a Special Type of Managing Committee under Regulation 20(2) of the Regulations of 1977 for a term of 3(three) years in order to maintain congenial academic atmosphere there. Accordingly, the respondent no.3, under the signature of the respondent no. 4, by a Memo dated 05.04.2007, communicated the Government’s approval to the constitution of the Special Type of Managing Committee for the school. In due course, the respondent no. 1, under the signature of the respondent no. 2, by a Memo dated 22.04.2007, established the Special Type of Managing Committee therefore for a term of 3(three) years under Regulation 20(2) of the Regulations of 1977. The tenure of the Special Type of Managing Committee expires on 21.04.2010 as per the Memo dated 22.04.2007.
3. However, another Special Type of Managing Committee was illegally proposed to replace the said Special Type of Managing committee before expiry of its tenure. At one stage,Mr.Md.Azizul Huq, the incumbent Headmaster of the school, intimated the respondent no.3 about the same and requested him to allow the pre-existing Special Type of Managing Committee to complete its tenure by a letter dated 03.08.2009. Anyway, the respondent no.3, under the signature of the respondent no. 5, issued a Memo dated 12.07.2009 requesting the respondent no. 1 to take steps in accordance with the provisions of “j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡XÑ, QVÊNË¡j (j¡dÉ¢jL J EµQ j¡dÉ¢jL Ù¹ll ®hplL¡¢l ¢nr¡ fË¢aÖW¡el Ni¡¢ZÑw h¢X J jÉ¡e¢Sw L¢j¢V) fË¢hd¡ej¡m¡, 2009” (herein after mentioned as the Regulations of 2009) to form a Special Type of Managing Committee for the school. In response to the aforesaid Memo dated 12.07.2009, the respondent no.1, by a Memo dated 29.07.2009, informed the respondent no.3 that prior approval of the Government, that is to say, the Ministry of Education is required in order to constitute a Special Type of Managing Committee under Regulation 50 of the Regulations of 2009. In pursuance of the aforesaid Memo dated 29.07.2009, the respondent no. 3, under the signature of the respondent no. 5, by a Memo dated 24.08.2009, directed the respondent no. 1 to take steps in accordance with Regulations 53(1) and 9 of the Regulations of 2009 in that regard. The said Memo dated 24.08.2009 did not accord any prior approval of the Government for constituting a Special Type of Managing Committee of the School as per the criteria laid down in Regulation 50 of the Regulations of 2009. Be that as it may, at a subsequent stage, the respondent no. 1, under the signature of the respondent no. 2, issued the impugned Memo dated 24.09.2009 (Annexure-‘A’) according approval to the so-called special Type of Managing Committee for the school for a period of two years in purported exercise of powers under Regulation 50 of the Regulations of 2009. Afterwards, the incumbent Headmaster of the school, namely,Mr.Md.Azizul Huq, acting as Member-Secretary of the pre-existing Special Type of Managing Committee by a letter dated 29.09.2009, lodged a complaint with the respondent no.3 stating, inter alia, that the purported Special Type of Managing Committee was constituted in violation of the Regulations of 2009. In response thereto, the respondent no. 5 issued a Memo dated 01.10.2009 requesting the respondent no. 1 to furnish an enquiry report vis-à-vis the purported Special Type of Managing Committee. Since the impugned Memo dated 24.09.2009 is in contravention of the provisions of Regulations 50 of the Regulations of 2009, the constitution of the Special Type of Managing Committee is without lawful authority and of no legal effect.
4. The added respondent no. 7 has contested the Rule by filing an Affidavit-in-Opposition. His case, as set out in the Affidavit-in-Opposition, briefly runs as follows:
5. The tenure of the Special Type of Managing Committee of the Ankur Society Girls’ High School constituted under Regulation 20(2) of the Regulations of 1977 expired on 21.04.2009 by operation of the provisions of Regulations 53(1) read with Regulation 9 of the Regulations of 2009. After the expiry of the term of the said Special Type of Managing Committee on 21.04.2009, another Special Type of Managing Committee was duly constituted under Regulation 50 of the Regulations of 2009 on 24.09.2009. On that very date, it held its first meeting and took some decisions and according to those decisions, it informed the concerned banks of its formation for doing the needful. Thereafter on 04.10.2009, a special general meeting was held and the minutes of the earlier meeting dated 24.09.2009 were approved and in the said meeting, the Special Type of Managing Committee unanimously took a decision to issue a show-cause notice upon the incumbent Headmaster of the school for his misbehaviour, misconduct, non-cooperation and insubordination. But by suppressing the fact of functionality of the Special Type of Managing Committee constituted under Regulation 50 of the Regulations of 2009, the petitioner filed the instant Writ Petition and obtained the Rule. The impugned Memo dated 24.09.2009 is lawful and valid. As such, the Rule is liable to be discharged with costs.
6. At the outset, Mr. Rokanuddin Mahmud, the learned Advocate appearing on behalf of the petitioner, submits that prior approval of the Board and the Government is a condition precedent to the formation of the special type of managing committee under Regulation 50 of the Regulations of 2009; but it appears in view of Annexure-‘D’ series and Annexure-‘F’. It appears that the Government did not expressly accord any prior approval and that being so, the constitution of the special type of managing committee by the impugned Memo dated 24.09.2009 is ‘de hors’ the law.
7. Mr. Rokanuddin Mahmud next submits that Regulation 50 of the Regulations of 2009 contemplate formation or constitution of a special type of managing committee in a special situation or exigency but the impugned Memo dated 24.09.2009 does not indicate any special situation or exigency which necessitated the constitution of this special kind of managing committee for the school and in this perspective, the formation of the special type of managing committee under Regulation 50 is without lawful authority.
8. Mr. Rokanuddin Mahmud also submits that as per direction of the Government vide Annexure-‘E’ to the Writ Petition a managing committee under Regulation 7 of the Regulations of 2009 should have been formed and the Annexure-‘E’ does not betoken the formation of any special kind of managing committee under Regulation 50 of the Regulations of 2009.
9. Mr. Rokanuddin Mahmud next submits that the incumbent the Headmaster of the school Mr.Md.Azizul Huq lodged a complaint with the Government against the formation of the special kind of managing committee under Regulation 50 and the Government directed the respondent no. 1 to enquire into the matter and this direction of the Government is virtually a negation of the implied approval, if any, of the government to the formation of the special kind of managing committee under Regulation 50.
10. Mr. Rokanuddin Mahmud also submits that it is ex-facie clear from Annexure-‘B’ series to the Writ Petition that both the Board and the Government accorded express approval to the formation of the special type of managing committee under Regulation 20(2) of the Regulations of 1977 but in the formation of the so-called special managing committee under Regulation 50 of the Regulations of 2009 the Government did not accord its approval either expressly or impliedly and the non-according of the approval to the special type of managing committee under Regulation 50 has rendered the same non-east.
11. Mr. Rokanuddin Mahmud also submits that the incumbent Headmaster of the school has not been made a Member-Secretary of the special type of managing committee formed on 24.09.2009 though Regulation 46(1) of the Regulations of 2009 mandates that the head of the non-Government Educational Institution shall preserve the documents and with regards and manage the operate funds of the school as Member-Secretary and since admittedly the Headmaster has not been made a Member-Secretary of the so-called special type of managing committee, its formation is of no legal effect.
12. Mr.Md.Mutahar Hossain the another Advocate appearing on behalf of the petitioner, submits that as per Regulation 34 of the Regulations of 2009 for holding a special meeting at least 24 hours notice must be served upon the members of the special type of managing committee and in that meeting not more than one agenda item could be listed for discussion but it appears from minutes of the first meeting of the special type of managing committee held on 24.09.2009 that the members and that committee were not 24 hours meeting prior to holding of the get and what is more, there were more than one agenda item in the meeting in violation of Regulation 34 of the Regulations of 2009 and given this scenario, it can not be said that the first meeting of the special kind of managing committee was held on 24.09.2009 in accordance with law and this being the position, it can not be accepted in law that the special type of managing committee held its first meeting is lawfully on the very date of formation of the committee, that is to say, on 24.09.2009.
13. On the contrary, Mr. A. F. Hassan Ariff, the learned Advocate appearing on behalf of the added respondent no. 7, submits that the record shows that the approval of the Board to the formation of the special type of managing committee as contemplated Regulation 50 of the Regulations of 2009 has been given by Annexure-‘A’ and from a combined reading of Annexure-‘D’ series and Annexure-‘E’ there can not be any other meaning then to according of approval to the formation of the special type of managing committee thereunder and in such a posture of things, it can not be said that the Government did not accord its prior approval to the constitute a special type of managing committee of the school under Regulation 50 and from this point of view, the formation of the special type of managing committee is legal and valid.
14. Mr. A. F. Hassan Ariff further submits that in view of the provisions of Regulations 53 and Regulation 9 it is crystal clear that the tenure of the pre-existing special managing committee of the school has been curtailed to two years and as the pre-existing special managing committee did not take any step to constitute a regular managing committee under Regulation 49 of the Regulations of 2009 a special situation arose or exigency arose to constitute a special type of managing committee as provided of Regulations of 2009 though the exigency has not been spelt out in the impugned Memo dated 24.09.2009 and with a view to meeting this special situation or exigency the special type of managing committee was constituted under Regulation 50 of the Regulations of 2009 and considered from this standpoint, no exception can be taken thereto.
15. Mr. A. F. Hassan Ariff next submits that the order given by the Government for holding an enquiry into the formation of the special type of managing committee by the respondent no.1 does not necessarily negate the implied approval of the Government to its formation and since the matter is at the enquiry stage. The petitioner has no locus standi and standing to come up with the Writ Petition under Article 102 of the Constitution.
16. Mr. A. F. Hassan Ariff further submits that Regulation 50 of the Regulations of 2009 does not postulate that the Headmaster of the school should be the Member-Secretary of the special type of managing committee from under Regulation 50 of the Regulations of 2009 and in this regard, he has drawn our attention to Regulation 3 of the Regulations of 2009 and according to the Regulation 3 barring Regulations 48, 49, 50 and 51 the management and Regulation of a Non-Government Educational Institution shall be carried on according to the Regulations of 2009 and since the applicability of Regulation 50 has been expressly barred by Sub-Regulation(1) of Regulation 3 it does not lie in the mouth of Mr. Rokanuddin Mahmud to say that the Member-Secretary of the special type of managing committee under Regulation 50 should be the Headmaster of the school and such being the state of affairs, no exception can be taken to the formation of the special type of managing committee on this count.
17. Mr. A. F. Hassan Ariff next submits that it is true that on the very date of formation of the managing committee on 24.09.2009 the first meeting was held giving less than 24 hours notice and in that meeting there were 2 agenda items but the present petitioner being a member of the pre-existing special managing committee formed under Regulation 22 of the Regulations of 1977 has no legal right to assail the holding the first meeting of the of the special type of managing committee formed under Regulation 50 of the Regulations of 2009 and in this regard, the petitioner is mere and interloper and he is not an aggrieved by the serving of the notice giving less than 24 hours and discussion more than one agenda item in that meeting.
18. Mr. A. F. Hassan Ariff further submits that the previous special managing committee formed under Regulation 20(2) of the Regulations of 1977 was defunct by operation of Regulations 53 and 9 of the Regulations of 2009 and on the date of filing of the Writ Petition 04.10.2009 and Rule issued on 27.10.2009 the petitioner has had no subsisting legal right to protect by this Constitutional Court and as per the Proviso to Regulation 9 the previous special meeting of the managing committee would till the holding of the first meeting of the new managing committee and after the holding of the first meeting of the special type of managing committing formed under Regulation 50 of the Regulations of 2009 the previous special managing committee should wash their hands of the matter.
19. We have heard the submissions of the learned Advocate Mr. Rokanuddin Mahmud and the counter-submissions of the learned Advocate Mr. A. F. Hassan Ariff and perused the Writ Petition, Affidavit-in-Opposition and relevant Annexures annexed thereto.
20. It is admitted that the earlier special managing committee was formed under Regulation 20(2) of the Regulations of 1977 on 22.04.2007 for a period of 3 years. It is further admitted that both the Board and the Government accorded their respective approval to the constitution of the special managing committee under said Regulation 20(2). It is also undisputed that prior to the formation of the special type of managing committee as provided by Regulation 50 of the Regulations of 2009 the earlier special managing committee have been performing the functions duties and responsibilities of the managing committee of the school. It transpires that controversies and differences of opinion have previewed of the formation of the special type of managing committee under the said Regulation 50 on 24.09.2009 (Annexure-‘A’ to the Writ Petition). In the facts and circumstances of the case, it seems to us that the earlier special managing committee formed under Regulation 20(2) of the Regulations of 1977. The present special type of managing committee formed under Regulation 50 of the Regulations of 2009 purportedly managing the affairs of the school to the exclusion of the other. The bone of contention between the parties for the constitution of the special type of managing committee under Regulation 50 of the Regulation of 2009.
21. It has already been observed that the earlier managing committee was formed on 22.04.2007. Pursuant to Regulation 20(2) of the Regulations of 1977, at the instant of the then Headmaster of the school for a period of 3 years. In this connection, Regulations 53(1) and 9 of the Regulations of 2009 may be reproduced below:
“53(1) HC fË¢hd¡ej¡m¡ L¡kÑLl qJu¡ pšÆJ, j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡XÑ, QVÊNË¡j Hl A¢drœi¥š² Hm¡L¡u Ah¢Øqa j¡dÉ¢jL J EµQ j¡dÉ¢jL Ù¹ll ®hplL¡¢l ¢nr¡ fË¢aÖW¡epj§q ¢hcÉj¡e Ni¡¢ZÑw h¢X h¡, ®rœja, jÉ¡e¢Sw L¢j¢V HC fË¢hd¡ej¡m¡l Ad£e N¢Wa qCu¡R h¢mu¡ NZÉ qCh Hhw Eq¡cl ®ju¡cl Ah¢nÖVL¡m Abh¡ fË¢hd¡e 9 Ae¤p¡l ¢edÑ¡¢la ®ju¡c, HC c¤C Hl jdÉ k¡q¡ BN B¢ph ®p ®ju¡c fkÑ¿¹, c¡¢uaÄ f¡me L¢lu¡ k¡Chz
9z Ni¡¢ZÑw h¢X J jÉ¡e¢Sw L¢j¢Vl ®ju¡cz- fË¢hd¡e 38 Hl ¢hd¡e Ae¤p¡l f§hÑ h¡¢am Ll¡ e¡ qCm Ni¡¢ZÑw h¢X h¡, ®rœja, jÉ¡e¢Sw L¢j¢Vl ju¡c qCh Eq¡l fËbj pi¡ Ae¤ÖW¡el a¡¢lM qCa flha£Ñ c¤C hvplx
ah naÑ b¡L ®k, ®L¡e Ni¡¢ZÑw h¢X h¡, ®rœja, jÉ¡e¢Sw L¢j¢Vl ®ju¡c Eš£ZÑ qJu¡ paÄJ Eq¡l Ešl¡¢dL¡l Ni¡¢ZÑw h¢X h¡, rœja, jÉ¡e¢Sw L¢j¢Vl fËbj pi¡ Ae¤¢ÖWa e¡ qJu¡ fkÑ¿¹ Eš² fËbj Ni¡¢ZÑw h¢X h¡, ®rœja, jÉ¡e¢Sw L¢j¢V Eq¡l c¡¢uaÄ f¡me AhÉ¡qa l¡¢Mhz”
For determination of the tenure of the provisions special managing committee. There is no gainsaying the fact that the Regulations of 2009 coming into effect on 16th June, 2009. From a combined reading of the provisions of Regulations 53 (1) and Regulation 9 of the Regulations of 2009. It appears to us that the tenure of the previous special managing committee was reduced all criteria to two years. In other words, the stint of the previous special managing committee expired on 21. 04.2009. In view of this scenario, there arose a necessary formation of a special type of managing committee as postulated by Regulation 50 of the Regulations of 2009. At this juncture, it may be recalled that the provisions of Regulation 20(2) of the Regulations of 1977 are almost identical with those of the provision 50 of the Regulations of 2009. Since the earlier managing committee was special one, presumably it was not expedient and prudent to form a corresponding special type of managing committee under Regulation 50 of the Regulations of 2009. Besides after the result of the Regulations of 1977, it appears that it was though proper and desirable to constitute a special type of managing committee under Regulation 50. In this connection, it may be noted that since the school is being managed by the Chittagong Co-operative Society Limited the formation of its regular managing committee will be under Regulation 49 and in the Regulation under 7 of the Regulations of 2009 as contended by Mr. Rokanuddin Mahmud since in the prevalent situation it was thought fit proper to form a special type of managing committee under Regulation 50 we need not interfere therewith in this Writ Petition.
22. However, though the previous special managing committee has become defunct by operation of the provisions of Regulations 53 and 9 proper of the Regulations of 2009 but the fact remains that the previous function of the special type of managing committee have been kept arrived by the proviso. In this regard, it is well-settled that a proviso is in nature of the exception. Anyway, by reason of the proviso to Regulation 9 the previous special managing committee had been carrying on duties and responsibilities till holding of the first meeting of the special type of managing committee on 24. 09.2009.
23. The minimum grounds of attacked vis-a-vis the formation of the special type of managing committee of Mr. Rokanuddin Mahmud there make approval of the Government to its formation and the absence of any situation or exigency as contemplated by Regulation 50 of the Regulations of 2009 now let us address these two grounds are attacked.
24. It is true that by Annexure-‘B’ series both the Board and the Government accorded their respective approval to the formation of the earlier special managing committee expressed terms. According to Mr. Rokanuddin Mahmud in similar express terms the prior approval of the Government should have been accorded to the formation of the special type of managing committee as adverted to in Regulation 50 of the Regulations of 2009. But according to Mr. A. F. Hassan Ariff from a conjoint reading of Annexure-‘D’ series and Annexure-‘E’ leads to the conclusion that the Government accorded its prior approval impliedly to the constitution of the new special type of managing committee. In order to resolve this contentious matter the Annexure- ‘D’ series and Annexure-‘E’ to the Writ Petition may be quoted below verbatim:
“NZfÊS¡a¿»£ h¡wm¡cn plL¡l”
¢nr¡ j¿»Z¡mu
n¡M¡-12z
ew- ¢nj/n¡x12/2(1)/2000/284 a¡¢lMx 12/07/2009 ¢MËx
¢houx ¢hno dlZl ú¥m jÉ¡e¢Sw L¢j¢V NWe fËp‰z
QVÊNË¡j ®Sm¡l e¡¢pl¡h¡c EfSm¡d£e AwL¥l ®p¡p¡C¢V h¡¢mL¡ EµQ ¢hcÉ¡mu Hp|Bl|J ew 152/BCe/2009, j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡ ®h¡XÑl 50 Hl 2 Ef-fË¢hd¡el ¢hd¡e Ae¤k¡u£ ¢hno dlZl ú¥m jÉ¡e¢Sw L¢j¢V NWel ¢hou ¢hcÉj¡e ú¥m jÉ¡e¢Sw L¢j¢Vl ®l…mne Ae¤k¡u£ kb¡kb L¡kÑœ²j NËqZ Ll ¢h¢d ®j¡a¡hL ¢eÖf¢š Ll¡l SeÉ ¢ecÑnœ²j Ae¤l¡d Ll¡ q’mz
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¢houx QVÊNË¡j jq¡eNlØq f¡yQm¡Cn b¡e¡d£e AwL¥l ®p¡p¡C¢V h¡¢mL¡ EµQ ¢hcÉ¡mu ¢h®no dlZl
L¢j¢V NWe fËp‰z
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M) ¢nr¡ j¿»¡Z¡mul pÈ¡lL ew- ¢nj/n¡x11/L¢j¢V-2-6/2005/532, a¡¢lM 05/04/2007 Cwz
EfkѤš² ¢hou J p§œl fË¢ra S¡e¡e¡ k¡µR ®k, AwL¥l ®p¡p¡C¢V h¡¢mL¡ EµQ ¢hcÉ¡mu¢V Na 01/01/2008 Cw ®bL HL¡X¢jL ü£Lª¢a fË¡çz Eš² ¢hcÉ¡mu ®hplL¡l£ ú¥m jÉ¡e¢Sw L¢j¢V ®l…mne 1977 Hl 20(2) d¡l¡u p§œ¡š² 2ew pÈ¡lL j§m Na 22/04/2007 a¡¢lM 3(¢ae) hvpl ®ju¡cl SeÉ HL¢V ¢hno dlZl L¢j¢V Ae¤j¡ce ®cu¡ quz pÇfТa S¡l£L«a ú¥m j¡¡e¢Sw L¢j¢V pwœ²¡¿¹ fË¢h¢dj¡m¡-2009 Hl ¢h¢d 53 Hl Bm¡L h¢ZÑa L¢j¢Vl ®ju¡c Ca¡jdÉ 2 hvpl A¢aœ²j qu ®NRz ®p fË¢ra ®p¡p¡C¢V La«ÑL c¡¢MmL«a 07(p¡a) pcpÉl ¢hno dlZl L¢j¢V Ae¤j¡ce c¡el SeÉ ¢h¢d 50(1) Ae¤k¡u£ plL¡l ab¡ ¢nr¡ j¿»Z¡mul f§hÑ¡e¤j¡ce fËu¡Sez
Hja¡hØq¡u, Eš² L¢j¢V Ae¤j¡ce c¡el ¢hou pcu ¢ecÑne¡ fËc¡el SeÉ ¢he£ai¡h Ae¤l¡d Ll¡ qmz
pwk¤¢š²x L¢j¢Vl pcpÉcl a¡¢mL¡ 01(HL) f¡a¡z
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h¡wm¡cn p¢Qh¡mu, Y¡L¡z
cª¢ÖV BLoÑZx k¤NÀ p¢Qh(j¡dÉ¢jL), ¢nr¡ j¿»Z¡mu, h¡wm¡cn p¢Qh¡mu, Y¡L¡z
NZfÊS¡a¿»£ h¡wm¡cn plL¡l
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p§œx QVÊNË¡j ¢nr¡ ®h¡XÑ Hl pÈ¡lL ew Q¢nh¡/¢hcÉ¡/QVÊxjq¡x(f¡yQ)/691/2004(Mä-1)/2269(2),
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25. It transpires that the Government has directed the Board authority to initiate steps for formation of a special type of managing committee under Regulation 50 of the Regulations of 2009 as per Annexure-‘D’ to the Writ Petition. In reply to Annexure-‘D’ dated 12.07.2009 the Board addressed a Memo dated 29.07.2009 (Annexure-‘D1’ emphasizes the necessity for according prior approval to the constitution a special type of managing committee under said Regulation 50. Responding to Annexure-‘D1’ dated 29.07.2009 the Government (Ministry of Education) requested the general of the Board to initiate steps under Regulations 53(1) and 9 of the Regulations of 2009. In this context, it is worthy of notice that although by Annexure-‘D1’ the Board lead envisages on the prior approval of the Government to the formation of a special type of managing committee under Regulation 50(1) by Annexure-‘E’ the Government did not indicate its carefulness inability to acquire the prior approval to the formation of such a committee under Regulation 50. From a bare reading of Annexure-‘D’ series and Annexure-‘E’ conjointly it leaves no room for doubt about the Government accorded its prior approval to the formation of a special type of managing committee under Regulation 50 in an implied manner. This is because had the Government decided to not to accord prior approval to the constitutes of a special type of managing committee under Regulation 50 then which have categorically, unambiguously and unmistakably terms refused to accord prior approval thereto. In the absence of any such refusal, it can be construed the prior approval of the Government to the formation of the special type of managing committee was implied to all intents and purposes. On this question, we are at one with the submission of Mr. A.F. Hssan Ariff.
26. As to the express ‘¢hno f¢l¢Øq¢aa’ (special situation or exigency) occurring in Regulation 50 of the Regulations of 2009 the impugned Memo (Annexure-‘A’ to the Writ Petition) does not appear to be very communicative precisely speaking the special situation or exigency has not been spelt out therein. In this context, Annexure-‘A’ is reproduced below:
“j¡dÉ¢jL J EµQ j¡dÉ¢jL ¢nr¡h¡XÑ, QVÊNË¡j”
pÈ¡lL ew Q¢nh¡/¢hcÉ¡/QVÊx jq¡ x(fy¡Q)/691/2004(Mä-1)/2901(3) a¡¢lMx 24/09/2009 Cw
¢houx ¢hno dlel jÉ¡e¢Sw L¢j¢V Ae¤j¡cez
p§œx (L) ¢nr¡ j¿»Z¡mul pÈ¡lL ew ¢nj/n¡x12/2(1)/2000/284 a¡¢lMx 12/07/2009 Cwz
(M) ¢nr¡ j¿»Z¡mul pÈ¡lL ew ¢nj/n¡x12/2(1)/2000/364 a¡¢lMx 24/08/2009 Cwz
Efk¤Ñš² ¢hou J p§œl Bm¡L AwL¥l ®p¡p¡C¢V h¡¢mL¡ EµQ ¢hcÉ¡mul ®~ce¢¾ce fËn¡p¢eL L¡kÑ¡hm£ Q¡m¡Cu¡ k¡Ch¡l SeÉ ¢eÇj¢m¢Ma hÉ¢š²NZl pjeÄu jÉ¡e¢Sw L¢j¢V fË¢hd¡ej¡m¡-2009 Hl fË¢hd¡e 50(2) Ae¤p¡l N¢Wa ¢hno L¢j¢VL HC pÈ¡lL Cp¤Él a¡¢lM qCa 02 (c¤C) hvpll SeÉ Ae¤j¡ce ®cJu¡ qCmz
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2z Se¡h ¢pl¡S¤m Cpm¡j ————————————————– pcpÉ-p¢Qhz
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5z Se¡h jja¡S¤m qL (l¦L¥) ———————————————– pcpÉz
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f¢lQ¡mL, Hj,¢V,Hp N¡jѾVp ¢mx, ®cJu¡eq¡V, QVÊNË¡jz (A¢ii¡hL fË¢a¢e¢d)
L¢j¢Vl ®ju¡cl jdÉ AhnÉCx
L) ¢eu¢ja L¢j¢V NWe L¢lu¡ ®h¡XÑl Ae¤j¡ce NËqZ L¢la qChz
M) L¢j¢Vl pi¡ Bqh¡e Hhw pi¡ f¢lQ¡me¡l ®rœ fË¢hd¡e 33 J 35 Ae¤ple L¢la qChz
N) fË¢hd¡e 45 Ae¤p¡l ¢hcÉ¡mul ¢qp¡h f¢lQ¡me¡ L¢la qChz
O kb¡pju ¢hcÉ¡mul HL¡X¢jL ü£L«¢a eh¡ue L¢la qChz
ü¡rl AØfÖV
24/09/09
¢hcÉ¡mu f¢lcnÑL
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Se¡h ¢pl¡S¤m Cpm¡j, pcpÉ-p¢Qh
AwL¥l ®p¡p¡C¢V h¡¢mL¡ EµQ ¢hcÉ¡mu J pÇf¡cL, ¢c ¢QV¡N¡w ®L¡-Af¡l¢Vi ®p¡p¡C¢V ¢mx,
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1z Se¡h S¢pj EŸ£e ®Q±d¤l£,
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2z Se¡h ®j¡x B¢SS¤m qL, fËd¡e ¢nrL
AwL¥l ®p¡p¡C¢V h¡¢mL¡ EµQ ¢hcÉ¡mu, e¡¢pl¡h¡c, QVÊNË¡jz ”
In that Annexure-‘A’, it has been mentioned that the special type of managing committee has been constituted under Regulation 50 with a view to carrying worthy to that advantage accords of the school. It has already been referred to earlier that after the result of the previous Regulations of 1977 and came into force of the present Regulations of 2009 there was a sought of interregnum and this interregnum has been provided for by the proviso to Regulation 9 of the Regulations of 2009. It has also been discussed earlier that the provisions of Regulation 20(2) of the Regulations of 1977 to correspondence with those of Regulation 50 of the Regulations of 2009 substantially and in such view of the matter, it was thought expedient and prudent to form a special type of managing committee as enjoined by Regulation 50 of the Regulations of 2009. Although ‘¢hno f¢l¢Øq¢aa’ (special situation or exigency) has not been spelt out in so many words in Annexure-‘A’ but none the less, the special situation or exigency has discussed above can not be lost sight of in any view of the matter. It is settled proposition of law that while construing a document the context should be kept in view and the contextual scenario is to be appreciated vis-a-vis the document. Against this backdrop, it is, we are led to hold that the special type of managing committee as contemplated by Regulation 50 was formed with a view to meeting the special situation or exigency as discussed hereinbefore. So the formation of the special type of managing committee under Regulation 50, as we see it, our immune from the grounds of attacked on the counts of non-according of prior approval of the Government and the non-explanation of the ‘¢hno f¢l¢Øq¢aa’ (special situation or exigency) for all the reason stated above. The Annexure-‘A’ can not be thrown out overbold. Specially when the pre-existing value under Regulation 20(2) of the Regulations of 1977 have no legal right to be protected by this Court after expiry of their tenure of two years in view of the provisions of Regulations 53(1) and 9 of Regulations of 2009. From a bare reading of Regulation 50, it does not appear that the Headmaster, or for that matter, the head of the Educational Institution must be the Member-Secretary of the special type of managing committee. Regulation 50 provides that amongst others there shall be a Member-Secretary it does not necessary mean that the Member-Secretary must be the Secretary of the school. Of course, Mr. Rokanuddin Mahmud by refereeing to Regulation 46(1) of the Regulations of 2009 has argued that the head of the Non-Government Educational Institution as the secondary level shall be the Member-Secretary of the managing committee for the manage of funds and for reservation of document and with regards of the school. But it appears that of Mr. Rokanuddin Mahmud has conveniently remained oblivious of the provisions of Regulation 3 of the Regulations of 2009 as pointed out by Mr. A. F. Hassan Ariff. Sub-regulation (1) of the said Regulation expressly negates the applicability of Regulations 48, 49, 50 and 51 in so far Non-Government for the Educational Institution concerned and as the present special type of managing committee has been formed under Regulation 50, the provisions of this Regulations for the management and Regulation of the school will not be applicable, regard being had to the scheme of the Regulations of 2009 in general and the scheme of Regulation in particular. So it transpires that the provisions of Regulation 3 and those of Regulation 50 taken and read together we come to the definite conclusion that in a special type of managing committee as adverted to in Regulation 50 the headmaster of the school need not be the member-secretary of such a committee. What we are driving at boils down to this: on this score, the special type of managing committee form under Regulation 50 has not fall and foul of the scheme of the Regulations of 2009.
27. In the facts and circumstances of the case, it appears that since the school is being ran by the Co-operative Society Limited Regulation 7 of the Regulations of 2009 can not be invoked with a view to form a normal or managing committee, rather a regular can only be formed under Regulation 49 in the background of the facts and circumstances of the case. It appears to us that the formation of the special type of managing committee under Regulation 50 is a stop-gap arrangement to be more precise, it is stop-gap to the constitution of a regular managing committee under Regulation 49.
28. As to the contention of Mr. Md. Mutahar Hossain, the first meeting of the special type of managing committee held on 24.09.2009, that is, on the very day of formation of the committee is violative Regulation 34 of the Regulations of 2009. It seems that Mr. A. F. Hassan Ariff has rightly contended that the petitioner is a mere interloper in connection with the holding of the first meeting of the special type of managing committee form under Regulation 50. The petitioner, in our view, was not prejudiced in way by giving less than 24 hours notice upon the members of that special type of managing committee and discussing and more than one agenda item in that meeting. It transpires that the petitioner is a mere busy body on the question of holding of the first meeting of the special type of managing committee. No number of the special type of managing committee has come forwarded before this Court to dispute the validity and the legality of the notice and the holding of the first meeting of the committee on the very date on the formation of the committee on 24.09.2009. So the objections taken by the petitioner to the holding of the first meeting of the new managing committee on 24.0.2009 stands negatived.
29. As to the submission of Mr. Rokanuddin Mahmud that the order passed by the Government for holding an enquiry into the submission of the committee negates the implied prior approval, if any, of the Government to the formation of special type of managing committee under Regulation 50 we feel constrained to hold that the enquiry has been set in motion at the instant of the Headmaster of the school who appears to be aggrieved by the formation of the special type of managing committee on 24.09.2009. The enquiry is still under way. The facts and circumstances of the case do not rule out the possibility that the incumbent Headmaster Mr.Md.Azizul Huq has been pulling well behinds. So as to impede the normal view of the special type of managing committee formed on 24.09.2009. Since the incumbent Headmaster Mr.Md.Azizul Huq has not been taken the formation of this new type of special type managing committee with a grace it transpires that he is banned upon undoing it.
30. Admittedly, the special type of managing committee under Regulation 50 was constituted under Regulations of 2009 and the Writ Petition was filed on 04.10.2009 and the Rule issuing order was issued upon the respondents on 27.10.2009 this scenario, indicates that the petitioner had no locus standi or standing to file the Writ Petition under Article 102 of the Constitution when the special type of managing committee had already started functioning and the holding a first meeting on 24.092.009. In the facts and circumstances of the case and in view of the foregoing discussions, we have no hesitation in holding that the petitioner being a member of the earlier special managing committee has filed the Writ Petition by way of a smartrick in order to enable the previous managing committee may be operational and functional as far as possible far beyond the expiry of the term of the committee.
31. In the light of what have been stated above, we find no merit in the Rule, the Rule, therefore, fails.
Accordingly, the Rule is discharged without any order as to costs.
A.K.M.ABDUL HAKIM, J:
I agree.