Md. Mahfuzur Rahman and another Vs. Government of Bangladesh and others (Moyeenul Islam Chowdhury, J.)

ving the operation of the principles of estoppel and acquiescence.      …(1,2,33,37,39,40,42 and 43).

 

University of Dhaka nd another Vs. Zakir Ahmed, 16 DLR (SC) 722; Principal, Chittagong Medical College and another Vs. Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association Vs. Bangladesh and others, 33 DLR (AD) 177; Sharwar Kumar and others Vs. Director-General of Health Services and another, AIR 1994 SC 1448; Amirul Islam Vs. The Secretary, Ministry of Land Administration and Land Reforms, Government of Bangladesh and others, 1988 BLD (AD) 25; Uani Krishnan, J.P. and others Vs. State of Andhra Pradesh and others, AIR 1993 SC 2178; Sanatan Gauda Vs. Berhampur University and others, AIR 1990SC 1075; Ashok Chand Singhvi Vs. University of Jodhpur and others, AIR 1989 SC 823; Randir Singh Vs The State of Rajashtan and others, 1992(2) ESC 435 (Raj); R Vs. Electricity Commissioners (1924) 1KB 171; Ridge Vs. Baldwan, 1964 AC 40; In Re Infant H(K)(1967) 1 All E.R. 226; Council of Civil Service Union Vs. Minister for the Civil Service (1984)3 All E.R. 935; Swadeshi Cotton Mills Vs. India, AIR 1981 SC 818; Ziauddin Vs. Pakistan Defence Housing Authority, 1999 PLC 723; Enamul Huq (Md) Vs. Jatiyo Bishwabiddaloy and others, 59 DLR 556 ref.

Mr.Md. Ashad Ullah with

Ms. Khaleda Sultana Noor, Advocates

…For the petitioners.

Mr. Korunamoy Chakma, DAG with

Mr. Nazibur Rahman, AAG

…For the respondent no. 1.

Mr. M. K. Rahman with

Mr. A.K.M. Asiful Haque, Advocates

….For the respondent nos. 2-5.

Judgment

Moyeenul Islam Chowdhury, j: 

A Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order of the respondent no. 2 communicated under the signature of the respondent no. 5 vide Memo No. ®nL«¢h/ ¢px 35aj(h¡Ù¹x)fËx/08/731(2) dated 19.11.2008 (Annexure-‘I’) cancelling the admission of the petitioners from Sher-e-Bangla Agricultural University, Dhaka should not be declared to  be  without lawful authority and of no legal effect and why the respondent nos. 2-5 should not be directed to re-admit the petitioners and allow them to prosecute their studies in their respective Levels and Semesters of B.Sc. Agriculture(Hons.) in the Faculty of Agriculture of the said AgriculturalUniversity.

  1. 2.           Subsequently, a further Rule Nisi was issued calling upon the respondents to show cause as to why the decision of the respondent no. 4 dated 27.12.2008, so far as it relates to the petitioners, should not be declared to be without lawful authority and of no legal effect.
  2. 3.           It has been stated in the Writ Petition that having prescribed qualifications for admission to B.Sc. Agriculture (Hons.) Level-1, Semester-1, Faculty of Agriculture, Sher-e-Bangla Agricultural University, Dhaka, the petitioners collected Admission Forms being Form Nos. 3910 and 3903 from the office of the university for admission in the academic session-2004, filled up the Admission Forms and submitted the same to the university authority. After scrutiny, everything was found all right and they duly appeared in the Admission Test in the academic session-2004. As per pÀ¡aL ®L¡­pÑl R¡œ-R¡œ£ i¢aÑ AdÉ¡­cn, they were found eligible for admission. The university by its Memo No. 953 dated 21.03.2004 published the result of the Admission Test. Having been qualified in the Admission Test, the petitioners were admitted to their respective courses. After admission they started prosecuting their studies in B.Sc. Agriculture (Hons.), Level-1, Semester-1 in the Faculty of Agriculture in the academic session-2004. Anyway, at one stage, there was a hue and cry about illegal admission of some students including the petitioners to the university in that academic session and a news item was accordingly published in this regard in different newspapers. Ultimately a six-member committee was formed by the university authority to inquire into the allegations of illegal admission of the students to the university in the academic session-2004. On the basis of the inquiry report, an order was served upon the petitioners under the signature of the respondent no. 5 and communicated by Memo No. ®nL«¢h/ ¢px 35aj (h¡Ù¹x)fËx/08/731(2) dated 19.11.2008 cancelling their admission from the university. They were not afforded any opportunity of being heard prior to cancellation of their admission. As a matter of fact, they were condemned unheard. So the impugned order dated 19.11.2008 is without lawful authority. On receipt of the impugned order dated 19.11.2008, the petitioners examined the resolution of the Syndicate dated 01.11.2008 taken in its 35th Meeting from the office of the respondent No.5 and came to know about the reasons for cancellation of their admission to the university. Thereafter the petitioners made review applications to the authority concerned for review of the impugned order dated 19.11.2008 and to allow them to prosecute their studies in the university. But the Syndicate rejected their review applications in its meeting held on 27.12.2008 affirming the earlier order dated 19.11.2008. The decision of the Syndicate dated 27.12.2008 is of no legal effect.
  3. 4.           The respondent nos. 2-5 have contested the Rule by filing a joint Affidavit-in-Opposition. It has been stated therein that the Writ Petition is misconceived and the same has been filed by suppressing material facts. The petitioners never applied for admission and sat for the admission test for the academic session-2004. By having recourse to fraud and forgery, they succeeded in getting themselves admitted to B.Sc., Agriculture (Hons.) course in the Faculty of Agriculture of the university. At the time of their admission, the alamats of fraud and forgery could not be detected. Anyway, a six-member inquiry committee was formed to probe into the allegations of fraud and forgery levelled against the petitioners in the matter of their admission to the university. The inquiry committee inquired into the allegations and ultimately submitted a report to the authority in the month of November, 2007. According to the report of the inquiry committee, the petitioners were fake students and they got themselves admi-tted to the university in the academic session-2004 through backstage manoeuvres and underhand means and accordingly it recommended the cance-llation of their admission from the university. Furthermore, the names of the petitioners were not recorded in the Optical Mark Reader (OMR) sheets of the university for the said academic session-2004. The non-mentioning of their names in the OMR sheets indicates that they did not sit for the admission test in order to qualify for admission to the university. The Writ Petition has been brought on some false and frivolous allegations. The impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university and the subsequent decision of the respondent no. 4 dated 27.12.2008 affirming the earlier order dated 19.11.2008  are legal and valid. That being so, no exception can be taken thereto.
  4. 5.           In the Supplementary Affidavit dated 26.07.2010 filed on behalf of the petitioners, it has been mentioned that the university authority is estopped from cancelling the admission of the petitioners in the facts and circumstances of the case and their review  applications were rejected without assigning any reason whatsoever. The principle of acquiescence comes into play in this case too. That being so, the university authority committed gross illegalities in cancelling the admission of the petitioners on 19.11.2008 and subsequently affirming the same on 27.12.2008.
  5. 6.           The photocopies of the relevant OMR sheets have been annexed to the Supplementary Affidavit -in-Opposition dated 12.08.2010 filed on behalf of the respondent nos. 2-5.
  6. 7.           In the Affidavit-in-Reply dated 26.09.2010 filed  on behalf of the petitioners, it has been stated  that the petitioners have filed the Writ Petition in order to vindicate their legal right and they have not suppressed  any material facts in filing the same. As the petitioners were admitted to the university and as they prosecuted their studies for years together, their admission can not be cancelled in view of the principle of ‘locus penitentiae’ as contemplated by Section 21 of the General Clauses Act. It is not understood as to why the names of the petitioners did not find place in the OMR sheets and in that view of the matter, the same does not appear to be genuine.
  7. 8.           At the outset, Mr. Md. Ashad Ullah, the learned Advocate appearing on behalf of the petitioners, submits that it is an indisputable fact that the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university was made without affording them any opportunity of being heard and in this perspective, the said impugned order is violative of the principle of natural justice and hence the same is without lawful authority.
  8. 9.           Mr. Md. Ashad Ullah further submits that admittedly the petitioners having been admitted to the university prosecuted their studies  for years  together and at the time of their admission, the university authority did not raise any objection; but after a considerable  lapse of time,   an inquiry committee was  constituted  behind their back and suddenly their admission was cancelled by the impugned order dated 19.11.2008 and since their admission  was already acted upon,  the university authority can not cancel the same by the impugned order dated 19.11.2008 on the principle of ‘locus penitentiae’  as provided  by Section 21 of the General Clauses Act.
  9. 10.       Mr. Md. Ashad Ullah next submits that in the facts and circumstances of the case, the principles of estoppel and acquiescence hold the field and as such the university authority is estopped from cancelling the admission of the petitioners from the university.
  10. 11.        Md. Md. Ashad Ullah also submits that it is the case of the respondent nos. 2-5 that the petitioners got themselves admitted to the university by resorting to alleged fraud and forgery; but the fact remains that the same have not been specified or spelt out in the Affidavit-in-Opposition and some bare statements  thereabout  in the Affidavit-in-Opposition will not suffice.
  11. 12.       Mr. Md. Ashad Ullah further submits that right to education is implicit in and flows from the right to life guaranteed by Part III of the Constitution and from this standpoint, the petitioners can not be deprived of this fundamental right particularly when they prosecuted their studies for a considerable length of time in the university.
  12. 13.       Mr. Md. Ashad Ullah next submits that the admission of the petitioners to the university is a ‘fait accompli’ and in all fairness, the university Syndicate should have allowed their review applications rescinding the earlier order dated 19.11.2008.
  13. 14.       In support of the above submissions, Mr. Md. Ashad Ullah relies on the decisions in the cases of the University of Dhaka and another -Vs-  Zakir Ahmed, 16 DLR (SC) 722; Principal, Chittagong Medical College and others -Vs-Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association -Vs- Bangladesh & others, 33 DLR (AD) 177; Sharwan Kumar and etc. -Vs- Director-General of Health Services and another etc., AIR 1994 Supreme Court 1448; Amirul Islam -Vs- The Secretary, Ministry of Land Administration & Land Reforms, Governm-ent of the People’s Republic of Bangladesh & others, 1988 BLD (AD) 25; Unni Krishnan, J.P. and others etc. -Vs- State of Andhra Pradesh and others etc., AIR 1993 Supreme Court 2178; Sanatan Gauda -Vs- Berhampur University and others, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi -Vs- University of Jodhpur and others, AIR 1989 Supreme Court 823 and Randir Singh-Vs-The State of Rajasthan and others, [1992(2) ESC 435 (Raj)].
  14. 15.           Per contra, Mr. M. K. Rahman, the learned Advocate appearing on behalf of the respondent nos. 2-5, submits that it is in the inquiry report that the petitioners  got themselves admitted to the university by resorting to fraud and forgery and the same could not be detected at the initial stage; but in the long run it was detected by the six-member inquiry committee headed by Professor Dr. Md. Hazrat Ali, Dean  of the Faculty of Agriculture of the university and on the basis of the report of the inquiry committee, the university authority issued the impugned order dated 19.11.2008 cancelling the admission of the petitio-ners from the university, though he concedes that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19.11.2008.
  15. 16.       Mr. M. K. Rahman also submits that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’ as to the cancellation of the admission of the petitioners from the university.
  16. 17.       Mr. M. K. Rahman next submits that the decision in the case of the University of Dhaka and another…Vs…Zakir Ahmed reported in 16 DLR (SC) 722 has no manner of application to the facts and circumstances of the instant case inasmuch as admittedly Zakir Ahmed was a student of the Dhaka University and his expulsion therefrom was challenged  before the then East Pakistan High Court and eventually Zakir Ahmed succeeded up to the Pakistan Supreme Court; but in the instant case, the very admission of the petitioners  to the Sher-e-Bangla Agricultural University is under challenge and from this angle, it can not be said that the petitioners and Zakir Ahmed  stand on the same footing and that being so,  Zakir Ahmed’s case will not be of any avail to the petitioners.
  17. 18.       Mr. M. K. Rahman also submits that had the petitioners really sat for the admission test, their names and other particulars would have been definitively mentioned in the OMR sheets and as the OMR sheets do not contain the same, it leaves no room for doubt that they got themselves admitted to the university by resorting to fraud and forgery and those were proved during the inquiry held by the six-member inquiry committee.
  18. 19.       Mr. M. K. Rahman lastly submits  that in the given facts and circumstances of the case, it is crystal clear that the petitioners have come up with  the present Writ Petition with unclean  hands  and as such, they can not get any relief from this Court.
  19. 20.       Mr. Korunamoy Chakma, the learned Deputy Attorney-General appearing for the respondent no. 1, adopts the submissions advanced by Mr. M. K. Rahman.
  20. 21.       We have heard the submissions of Mr. Md. Ashad Ullah and the counter-submissions of Mr. M. K. Rahman and perused the Writ Petition, Affidavit-in-Opposition, Supplementary Affidavit-in-Opposition, Supplementary Affidavit, Affidavit-in-Reply and the relevant Annexures annexed thereto.
  21. 22.       It is undisputed that the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university (Annexure-‘I’) was issued without affording them any opportunity of being heard. In other words, it is an admitted fact that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19.11.2008. What we are driving at boils down to this: the impugned order dated 19.11.2008 was passed behind the back of the petitioners.
  22. 23.       The moot question in this case is whether the impugned order dated 19.11.2008 cancelling the admission of the petitioners from the university is without lawful authority and of no legal effect for not adhering to the principle of ‘Audi Alteram Partem’.
  23. 24.           The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrary-ness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man can not be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (nemo debet esse  judex in propria causa). The contents of these principles vary with the varying circumstances and those can not be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals where a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some rules of fair procedure. These rules apply, even though there may be no positive words in the statute requiring their application.
  24. 25.       Lord Atkin in R. v. Electricity Commissioners ([1924] 1 KB 171) observed that the rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the rules to decision-making bodies similar in nature to a court of law. Lord Reid, however, freed these rules from the bondage in the landmark case of Ridge v. Baldwin ([1964] AC 40). But even before this decision, the rules of natural justice were being applied in our country to administrative proceedings which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned.
  25. 26.       In England, the application of the principles of natural justice have been expanded by introducing the concept of ‘fairness’. In Re Infant H(K) ([1967] 1 All E.R. 226), it was held that whether the function discharged is quasi-judicial or administrative, the authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but this is wrong as Lord Scarman correctly observes that the Courts have extended the requirement of natural justice, namely, the duty to act fairly, so that it is required of a purely administrative act (Council of Civil Service Union V. Minister for the Civil Service [1984] 3 All E.R. 935).
  26. 27.       An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially, in accordance with the classic authorities and Ridge V. Baldwin; or it may simply be held that in our modern approach, it automatically involves a duty to act fairly and in accordance with natural justice. The Indian Supreme Court has adopted this principle holding “….this rule of fair play must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands” (Swadeshi Cotton Mills V. India, AIR 1981 SC 818).
  27. 28.       The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right.
  28. 29.       The application of the rules of natural justice are no longer tied to the dichotomy of right-privilege. It has been stated in “Administrative Law” by H.W.R. Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair …” In the American jurisdiction, the right-privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez V. Freeman (334 F. 2d 570), the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely eroded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.
  29. 30.       The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put forward his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party.
  30. 31.       From an overview of the above-mentioned decisions of various jurisdictions and extracts of the jurists, it is abundantly clear that the university authority should have afforded the petitioners an opportunity of being heard prior to issuance of the impugned order dated 19.11.2008 cancelling their admission from the university. In this regard, we are not at one with Mr. M. K. Rahman that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’.
  31. 32.       Be that as it may, admittedly the petitioners submitted review applications (Annexure-‘J’ series) to the university authority seeking reversal of the impugned order dated 19.11.2008 and restoring their admission to the university only on humanitarian grounds. It does not stand to reason and logic as to why they remained conspicuously silent about the allegations of fraud and forgery in the review applications. Precisely speaking, they did not utter even a single word thereabout in the review applications. This circumstance supports the allegations of fraud and forgery levelled against them.
  32. 33.       Undeniably the decision of the respondent no.4 dated 27.12.2008 on review affirmed the earlier impugned order dated 19.11.2008. Taking the earlier order dated 19.11.2008 and the subsequent decision  dated 27.12.2008 together, it transpires that the earlier order dated 19.11.2008 virtually merged with the subsequent decision of the respondent no. 4 dated 27.12.2008. Against this backdrop, they are intertwined and inseparable from each other. After considering the review applications of the petitioners, the university Syndicate undoubtedly made the decision dated 27.12.2008. In such a posture of things, it can not be said that they were condemned unheard while making the decision on 27.12.2008 affirming the earlier order dated 19.11.2008. As the earlier order dated 19.11.2008 virtually merged with the subsequent decision of the university Syndicate taken on 27.12.2008 on the review applications (Annexure-‘J’ series), the defect/irregularity/ illegality affecting the order dated 19.11.2008 was cured. This is more so in view of the strikingly noticeable fact that the petitioners maintained mysterious silence over the allegations of fraud and forgery levelled against them. Regard being had to the peculiar facts and circumstances of the case, the ultimate decision of the Syndicate dated 27.12.2008 upholding the earlier order 19.11.2008 can not be questioned mainly on the ground that the same is presumably predicated  upon the report of the inquiry  committee  headed by one Professor Dr.  Md. Hazrat Ali.
  33. 34.       In this respect, the relevant extracts of the inquiry committee appear to be very relevant for our purpose and the same are quoted below verbatim:

“Z`‡š— cwijw¶Z nq †h Wzwc­‡KU fwZ©i Av‡e`b dig e¨envi K‡i 3903 †ivj bs Gi wecix‡Z †gvt Igi dvi“K I 3910 †ivj bs Gi wecix‡Z †gvt gvndzRyi ingvb †K fwZ© Kiv‡bv n‡q‡Q, †hLv‡b dig weZib KwgwUi mfvcwZ cª‡dmi m`i“j Avbvg mi`vi Gi ¯^v¶i bKj Kiv n‡q‡Q| D³ Qv·`i D‡j­wLZ †ivj bs Gi wecix‡Z OMR mx‡U Zv‡`i bvg Aš—f©~³ †bB| G‡Z cªZxqgvb nq †h, D³ †ivj b¤^‡ii wecix‡Z mswk­ó QvÎØq fwZ© cix¶vq AskMªnb K‡i bvB| †K›`ªxq fwZ© KwgwUi GKRb m¤§vwbZ m`m¨ Ges AÎ wek¡we`¨vj‡qi GKRb eq‰Rô¨ Aa¨vc‡Ki ¯^v¶i bKj Kiv Ges Wzwc­‡KU dig e¨envi K‡i A‰eafv‡e QvÎ fwZ© Kiv‡K ¸i“Zi Aciva e‡j KwgwU g‡b K‡i|

D³ QvÎ؇qi m‡›`n hy³ di‡gi mv‡_ †`q †gwW‡Kj wdU‡bm di‡g †WcywU †iwRóªvi (wk¶v) Rbve L›`Kvi †mwjg †iRv Gi ¯^n‡¯— wjwLZ †iwR‡óªkb b¤^i I ¯^v¶i i‡q‡Q Ges wk¶v kvLvi †mKkb Awdmvi †gvt Avwmd Rvnvb KZ©„K ÔÔK¨vwkqvi fwZ©i e¨e¯’v wbbÕÕ evK¨wU wjLv i‡q‡Q| G‡Z D³ Qv·`i fwZ© cªwµqvq Ab¨vb¨‡`i mv‡_ †WcywU †iwRóªvi (wk¶v) Rbve L›`Kvi †mwjg †iRv I †mKkb Awdmvi †gvt Avwmd Rvnvb m¤ú„³ wQ‡jb e‡j cªZxqgvb nq| G †¶‡Î mswk­ó `vqx e¨w³‡`i `„óvš—g~jK kvw¯— nIqv DwPZ e‡j KwgwU g‡b K‡i| ”

  1. 35.       It seems that some university functionaries were involved in the perpetration of fraud and forgery as regards the admission of the petitioners to the university and the inquiry committee recommended awarding of exemplary punishment to those functionaries.
  2. 36.       Article 15(kha) of the pÀ¡aL ®L¡­pÑl R¡œ-R¡œ£ i¢aÑ AdÉ¡­cn runs as follows:

“i¢aÑl pju fËcš ¢jbÉ¡ a­bÉl ¢i¢š­a ®L¡e R¡œ/R¡œ£­L ¢hnÅ¢hcÉ¡m­u i¢aÑ Ll¡ qC­m Hhw flha£Ñ­a Eq¡ fËj¡¢Za qC­m Eš² i¢aÑ h¡¢am h¢mu¡ NZÉ qC­hz”

  1. 37.       Suffice it to say that the petitioners resorted to fraud and forgery at the time of their so-called admission to the university at their own peril.
  2. 38.       It appears that Mr. M. K. Rahman has rightly contended that in the case of Zakir Ahmed, there was no controversy about his admission to the DhakaUniversity and at a subsequent stage, he was expelled therefrom for misconduct; but in the present case, the very admission of the petitioners is in question. So the footing of the petitioners is quite distinguishable from that of Zakir Ahmed (16 DLR (SC) 722).
  3. 39.       It goes without saying that had the petitioners actually  appeared in the admission test in the academic session-2004 as claimed by them, their names and other particulars would have been certainly mentioned in the OMR sheets (Annexure-‘3’). The non-mentioning of the same in Annexure-‘3’ leads us to the only conclusion that they did not apply for admission to the university nor did they sit for the admission test in the academic session-2004. We do not find any earthly reason to take Annexure-‘3’ with a pinch of salt.
  4. 40.       Section 21 of the General Clauses Act provides for the applicability of the principle of ‘locus penitentiae’. As per that principle, the authority competent to make an order has the power to undo the same; but the order can not be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual (Ziauddin -Vs- Pakistan Defence Housing Authority, 1999 PLC 723).
  5. 41.       In the case of Enamul Haq (Md) -Vs- Jatiyo Bishwabiddalay and others reported in 59 DLR (HCD) 556, it has been held referring to certain earlier authorities that the power to add to, amend, vary or rescind available under Section 21 of the General Clauses Act does not include the authority to take away a validly acquired right.
  6. 42.       Coming back to the instant case, it can not be said that the petitioners had a validly acquired right. As a matter of fact, by having recourse to fraud and forgery, they got themselves admitted to the university in collusion with some functionaries thereof. This being the position, they can not capitalize on their fraud and forgery. It is well-settled that fraud vitiates everything and by that reason, they should not be allowed to enjoy its fruit.
  7. 43.        It is true that the perpetration of fraud and forgery could not be detected at the initial stage and when the same were detected by the inquiry committee, it was found that the petitioners had prosecuted their studies for some years. But even then, as we see it, they can not take advantage of their misdeeds negativing the operation of the principles of estoppel and acquiescence.
  8. 44.       In the case of the Unni Krishnan, J.P. and others etc.  -Vs- The State of Andhra Pradesh and others etc. reported in AIR 1993 Supreme Court 2178 adverted to by Mr. Md. Ashad Ullah, it has been held that the right to education is implicit in and flows from the right to life guaranteed by Article 21 of the Indian Constitution. Since the right to education flows from the right to life, according to Mr. Md. Ashad Ullah, the petitioners should not be deprived of this fundamental right at this stage as guaranteed by Part-III of our Constitution.
  9. 45.       We are in respectful agreement with the above ‘ratio’ of the Indian Supreme Court that the right to education is implicit in and flows from the right to life, a fundamental right. But where fraud and forgery are dominant and conclusively proved, Mr. Md. Ashad Ullah can not advance any submission suiting the convenience of the petitioners.  It is to be borne in mind that fraud and fair-play can not dwell together-one must exclude the other. The Court stands for fair-play only. Had there been no fraud and forgery as found by the inquiry committee of the university, we would have definitely concurred with Mr. Md. Ashad Ullah on this count.
  10. 46.       According to Mr. Md. Ashad Ullah, the respondent nos. 2-5  have annexed  the  copies of the self-same admission forms and other related matters to their Affidavit-in-Opposition as the petitioners have annexed to the Writ Petition  and from this point of view, the impugned order dated 19.11.2008 can not be sustainable in law. We have already held that the very admission of the petitioners to the university is the product of fraud and forgery. This Court, or for that matter, any Court of law can not put a premium on the fraud and forgery committed by the petitioners in collusion with some functionaries of the university. It has already been found in the inquiry report that the admission forms and other related matters are all spurious documents and accordin-gly, the inquiry committee came to the definite finding that the petitioners did neither make any applications for admission nor did they sit for the admission test in the academic session-2004. So we are unable to be at one with Mr. Md. Ashad Ullah.
  11. 47.       The facts and circumstances of the present case, it transpires, are quite distinguishable from those of the cases of the Principal, Chittagong Medical College and others -Vs- Shahrayar Murshed, 48 DLR (AD)33; Bangladesh Steamer Agents Association -Vs- Bangladesh & others, 33 DLR (AD) 177; Sharwan Kumar and etc -Vs- Director-General of Health Services and another etc., AIR 1994 Supreme Court 1448; Amirul Islam -Vs- The Secretary, Ministry of Land Administ-ration & Land Reforms, Government of the People’s Republic of Bangladesh & others, 1988 BLD (AD) 25; Sanatan Gauda -Vs- Berhampur University and others, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi -Vs-University of Jodhpur and others, AIR 1989 Supreme Court 823 and Randir Singh -Vs- The State of Rajasthan and others, [1992(2) ESC 435 (Raj)]. Against this backdrop, those decisions have no manner of application to the instant case.  In the facts and circumstances of the case, we hold that the petitioners have come up with the Writ Petition with unclean hands.
  12. 48.       In the light of the discussions made above, we have no hesitation in holding that there is no merit in the Rule. The Rule, therefore, fails.

        Accordingly, the Rule is discharged without any order as to costs.

Ed. 

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