M. Nafees Salman Khan Vs. Government of Bangladesh and others, 4 LNJ (2015) 664

Case No: Writ Petition No. 10320 of 2011

Judge: Quazi Reza-Ul Hoque,

Court: High Court Division,,

Advocate: Mr. A. K. M. Salahuddin Khan,Mr. Mizanur Rahman,Mr. Zaidy Hasan Khan,Mr. M. Quamrul Haque Siddique,,

Citation: 4 LNJ (2015) 664

Case Year: 2015

Appellant: M. Nafees Salman Khan

Respondent: Government of Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2015-04-21


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Quazi Reza-Ul Hoque, J
And
Abu Taher Md. Saifur Rahman, J


Judgment on
21.04.2015
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M. Nafees Salman Khan
…Petitioner
Versus
The Government of Bangladesh and others
. . . Respondents
 
Constitution of Bangladesh, 1972
Articles 31, 55(4) and 102
The crux of the issue crystallises to the point with regard to the supplying of transcript of the public examination held under the control and supervision of the Dhaka Board. Although it is pertinent to note that the Education Ministry, therefore the respondent No. 3 is time and again superseding the authority of the Education Board, Dhaka which was established under the Board of Intermediate and Secondary Education Ordinance (Ordinance No. 33 of 1961), 1961. The Ministry of the Education by passing such authority frequently issuing circulars and orders in total disregard to the constitutional mandate. If we look into the circular dated 04.01.2003, this circular was issued by a Senior Assistant Secretary at his own accord without mentioning under whose authority he has issued the circular direction, which is in total violation of the Constitutional provision embraced in Article 55(4) of the Constitution and apart from that Article 31 of the Constitution clearly emphasises the provision that a citizen’s right be protected in accordance with law and only in accordance with law. . . .(41)

Constitution of Bangladesh, 1972
Article 102
Dhaka Education Board was established in 1961 as an independent body to control and supervises its own affairs but in total disregard to an Act of Parliament, i.e. the Ordinance No. 33 of 1961, the Education Ministry, i.e. respondent No. 3, is supervising and controlling it and issued the grading system and the circular dated 04.01.2003, which is also in total disregard to the Ordinance No. 33 of 1961, therefore the circular dated 04.01.2003 is issued without lawful authority and is of no legal effect. . . .(42)

Constitution of Bangladesh, 1972
Article 102
The paramount contention in the instant writ petition is with regard to supplying of mark sheet elaborately specifying the marks obtained by an examinee subject wise, as was done previously before introduction of the present system. There is no contention with regard to introduction of grading system but denying an examinee to know the marks he/she has obtained in S.S.C. and H.S.C. examination is opposed to his/her fundamental right. The Dhaka Education Board would formulated its system to supply transcript, if asked for by an examinee, of S.S.C. and H.S.C in future. And the present petitioner be supplied with his transcript, mark sheet, for his H.S.C. examination within 30(thirty) days from the date of receipt of this judgment and order. . . . (47)

Farah Tasnim Raisa Vs. Bangladesh and others, 64 DLR 248 ref.
 
Mr. M. Quamrul Haque Siddique, with
Mr. A. K. M. Salahuddin Khan, Advocates
. . . For the petitioner

Mr. Mizanur Rahman with
Mr. Zaidy Hasan Khan, Advocates
. . . For the Respondent Nos. 1 & 2.

Writ Petition No. 10320 of 2011
 
JUDGMENT
Quazi Reza-Ul Hoque, J.
 
The instant Rule was issued on 07.12.2011 calling upon the respondents to show cause as to why শিক্ষা মলয় প্রজ্ঞাপন dated 04.01.2003, and the reply made under reference number ৬৮৮/উঃ মাঃ পঃ/২০০১/৩৮৭, dated 30.11.2010, issued by the respondent Nos. 2 and 3 refusing to supply the mark-sheet of the petitioner, should not be declared to have been issued without lawful authority and are of no legal effect and why the respondent Nos. 1 and 2 should not be directed to give marks-sheet to the petitioner on receipt of this Court order and why the respondents should not be directed to identify the persons responsible for the gross negligence and alleged harassment made to this petitioner by not issuing mark-sheet and why direction should not be passed to take appropriate disciplinary action against them and/or pass such other or further order or orders as to this Court may seem fit and proper.

The facts necessary for disposal of the Rule, as has been stated by the petitioner, in short, is that the petitioner appeared in the Higher Secondary Certificate (Science Group) Examination under the Board of Intermediate and Secondary Education, Dhaka in the year 2010 as a regular student of the Government Kabi Nazrul College, Dhaka, with Roll No. 11593, and Registration No. 756621/2008-2009 (annexure– A).

Result of the examination was published on 15.07.2010 and the petitioner got academic transcript (without specific marks), which shows the following result:
 
Sl. No. Subjects Letter Grade Grade Point Result
1. Bangla A- 3.5  
 
4.30
2. English A- 3.5
3. Physics A- 3.5
4. Chemistry A 4
5. Biology A+ 5
6. Maths A 4

The given result was much lower than expectation of the petitioner and the petitioner was confident that by mistake his secured grade point was shown to be less than he actually secured, particularly in (1) Bangla, (2) English, (3) Chemistry, and (4) Mathematics. The petitioner prayed to the Board for re-scrutiny of his result on payment of Tk.300 x 4 = 1200/- on 18.07.2010 through Teletalk Mobile Phone Services and was waiting eagerly for the response from the Board of Intermediate and Secondary Education, Dhaka (Dhaka Board) but unfortunately till date the Dhaka Education Board has not given any response to the same.

Finding no way out, the father of the petitioner most humbly requested the respondent No. 2, the Controller of Examinations of Dhaka Board by an application dated 30.09.2010 praying to supply him the mark-sheet of his son assuring that he is ready to bear all expenses for supply of marks-sheet, and the said application dated 30.09.2010 was sent by registered post with acknowledgement due (annexure- C and C-1).

The respondent No. 2 by a letter under memo No. ৬৮৮/উঃমাঃপঃ ২০০১/৩৮৭ dated 30.11.2010, informed this petitioner that as per direction of the Ministry of Education contained in প্রজ্ঞাপন নং শিম/শাঃ১০/৭ পরীক্ষা২ (গ্রেডিং)/২০০২/৬১০, তারিখ ০৪/০১/২০০৩ the respondent Nos. 1 and 2 are unable to supply marks sheet but the respondent No. 2 did not enclose that প্রজ্ঞাপন with his reply, as such, the petitioner remained in darkness about the contents of the প্রজ্ঞাপন dated 04.01.2003 in question (annexure– N).

The petitioner did not know the contents of the said প্রজ্ঞাপন নং- শিম/শাঃ ১০/৭ পরীক্ষা-২ (গ্রেডিং)/২০০২/৬১০ dated 04.01.2003. Thereafter father of the petitioner met with the Chairman of the Dhaka Board, respondent No. 1, and requested to provide a copy of the প্রজ্ঞাপন dated 04.01.2003. Accordingly, the respondent No. 1 provided him with a photostat copy of the said প্রজ্ঞাপন নং শিম/শাঃ ১০/৭ পরীক্ষা-২ (গ্রেডিং)২০০২/৬১০ dated 04.01.2003, which provides for the introduction of grading system in S.S.C., H.S.C. and Alim Examinations in Bangladesh, which is done violating the provisions of the Intermediate and Secondary Education Ordinance, (E.P. Ordinance No. XXXIII of 1961), which is ultra vires to the said Ordinance; moreover, that প্রজ্ঞাপন is a mere circular of the শিক্ষা মলয়ন only, which has got no legal basis and that circular প্রজ্ঞাপন cannot be treated as a law of the country. The Education Ministry has not been authorized by any law to frame or issue any such circular and hence the said প্রজ্ঞাপন dated 04.01.2003 has got no legal enforceability, so the said প্রজ্ঞাপন is not binding upon this petitioner as an examinee under the Dhaka Board (annexure- M).

The said প্রজ্ঞাপন dated 04.01.2003 issued by the Ministry of Education did not prohibit the issuance of mark-sheet to the examinees. On the contrary, since time immemorial in our country full result of all broad based on examinations are expressed and given through mark-sheet and every examinee gets mark-sheet as an end result of such an examination is a customary right of the petitioner. The respondents have no reasonable excuse to refuse to give marks-sheet in as much as the result is prepared on the basis of marks-sheet.

The S.S.C., H.S.C. and Alim Examinations are recognized public examinations and records are prepared and made out of the examinations are all public records according to law. Therefore, the tabulation sheet is also a public record. All these are meant for public use and purposes, as such, if any citizen needs such record for his/her use, it is the duty of the public authority to provide the mark-sheet, which is a public record, to the person who asks for it. The তথ্য অধিকার আইন ২০০৯ has guaranteed right to an examinee to get his mark-sheet as per ones desire and demand it from the Dhaka Board and they have no right to refuse it.

The said প্রজ্ঞাপন dated 04.01.2003 shows that the Education Boards were directed to publish result of examination in terms of Grade Points (GP) but there is no bar in giving marks-sheet on demand. Father of the petitioner then wrote another letter to the respondent Nos.1 and 2 on 11.01.2011 stating that in said প্রজ্ঞাপন (notification) dated 04.01.2003 there is no bar in giving marks-sheet; and again the father of the petitioner requested to give marks-sheet of the petitioner and the letter was sent by registered post with acknowledgement (annexure- F and F-1). 

The respondent No. 2 by letter dated 23.01.2011 advised father of the petitioner to apply for information asking for mark-sheet in the prescribed form under the তথ্য অধিকার আইন, ২০০৯ (annexure- G). The father of the petitioner then on 09.03.2011 submitted application in form L prescribed by the তথ্য অধিকার আইন, ২০০৯ to the respondent No. 2 for marks-sheet, sent under registered post with acknowledgement (annexure- H and H-1), however, that has remained unanswered. The father of the petitioner again on 23.04.2011, sent another application to the respondent No.1 in form “N” of the তথ্য অধিকার আইন, ২০০৯ asking for marks-sheet, which was also sent under registered post with acknowledgement. The relevant provision of the তথ্য অধিকার আইন, ২০০৯, read as follows:

(ক) ধারাঃ ৪ তথ্য অধিকার ২ অধ্যায়ঃ
কর্তৃপ­ক্ষর নিকট হই­ত প্র­ত্যক নাগরি­কর তথ্য লা­ভর অধিকার থাকি­ব এবং কোন নাগরি­কর অনু­রা­ধর প্রেক্ষি­ত সংশ্লিষ্ট কর্তৃপক্ষ তাহা­ক তথ্য সরবরাহ করি­ত বাধ্য থাকি­ব
(খ) ধারা- ৩ঃ তথ্য অধিকার আই­নর প্রাধান্যঃ
ক) তথ্য প্রদান সং্রা বিধানাবলী এই আই­নর বিধানাবলী দ্বারা ক্ষুন্ন হই­ব না; এবং
খ) তথ্য প্রদা­ন বাধা সং্রা বিধানাবলী এই আই­নর  বিধানাবলীর সহিত সাংঘর্ষিক হই­ল, এই আই­নর বিধানাবলী প্রাধান্য পাই­বz (annexure –J and J-1).

The petitioner wants to go abroad for higher education and for such admission in any foreign educational institution mark-sheet of the petitioner in S.C.C. and H.S.C. examinations will be required in addition to GPA result. The respondents have no legal or moral right to refuse to give marks sheet to the petitioner as the same would deprive him from the benefits, which he is entitled to get on the basis of mark-sheet; ultimately the fundamental right of this petitioner effects seriously in all respect.

Thereafter a Notice Demanding Justice was sent by the father of the petitioner to the respondents demanding justice on 18.08.2011 by registered post through his lawyer, as yet, the respondents remained silent till date (annexure- K and K-1).

The petitioner filed Writ Petition No. 8836 of 2011, praying for a direction on the respondents to issue marks sheet to the petitioner. A Division Bench of this Court after hearing the said writ petition as a motion found it improper to issue Rule unless the প্রজ্ঞাপন dated 04.01.2003 is impugned and therefore the petitioner had to pray that he does not press the petitioner as it was framed.

The respondent, Dhaka Board has re-scrutinized around 107 candidates of the Higher Secondary Certificate (Science Group)- 2010 Examination result by way of correction and ultimately altered the result finally published on 15.07.2010 and re-issued their Academic Transcript afresh by putting fresh and new results. And out of that re-scrutinized result more than 42 of the candidates were given GPA-5.00 excepting this petitioner, which is discriminatory, mala-fide and is also repugnant to the equality of doctrine as enshrined in Article 27, 28 and 31 of the Constitution of the People’s Republic of Bangladesh.

It is due to the wilful and deliberate negligence, in as much as, planned partiality of the respondents the petitioner’s prayer for re-scrutiny have been kept pending and overthrown till date without assigning any reasons on  the other hand the petitioner paid Tk.1200.00 (one thousand and two hundred) as re-scrutiny fees in time for four (04) subjects, i.e. (1) Bangla (2) English, (3) Chemistry and (4) Mathematics; ultimately the petitioner’s result kept hidden and in darkness till this date despite repeated prayer and persuasion.

These ill motives, as well as, manipulations of the respondents has deprived the petitioner from his legal and constitutional right to know the actual root where he is standing out of that Public Examinations like Higher Secondary Certificate Examination-2010 (Science Group) and non-consideration of the petitioner’s prayer for re-scrutiny has not been done with ulterior motive of the respondent, which just stands on the way of Higher Education of the petitioner and thus put a bar to the petitioner who intends to go abroad, which has already affected him seriously to his fundamental right as guaranteed under the Constitution, guaranteed in Articles 27, 31, 32 and 44.

Once a revised result by way of alternation is published subsequently by way of making re-scrutiny in that case this petitioner prayer should have to be taken into positive consideration without any question and taking any negative attitude, otherwise the entire re-scrutiny of 107 candidates should have to be cancelled without raising any lame excuses.

The claim of the petitioner is only 0.70 decimals of points to realize which less than just 1.00 decimals marks only. Therefore, the petitioner’s prayer cannot be thrown out of by careless mistakes of the respondents, which is a mere negligence and at this stage this mistakes deserves positive consideration by way of re-scrutiny/re-examination without any more delay.

More so, it is to be said that the respondent Dhaka Board did not apply their official power which seems to be arbitrary and that is why this petitioner’s case has been over thrown, as well as, deserted as yet today. The respondents remained silent without giving any reply to this petitioner’s all written representations and prayer and non-compliance of the Court’s order dated 14.11.2011 which is another conspiracy and colourful offence of the respondents and is a violation of petitioner’s right which is guaranteed by the Constitution.

The respondent Nos. 1 and 2 contested the Rule, contending inter alia that so far the date of result of the examination is concerned, it was published on 15.07.2010, which is correct and the statements to the effect that the petitioner got academic transcript without specific marks is misleading, misconstrued and misconceived, as such, his prayer for according him GPA 5.0 instead of 4.30 has been denied. It is very pertinent to note that according to the notification being No. শাঃ ১১/১০৯১৮/২০০১/২৬৭-শিক্ষা dated 12.03.2001 and subsequent amendment of the said notification being No. শিম/শাঃ ১০/৭ পরীক্ষা-২/(গ্রেডিং)/২০০২/৬১০ dated 04.01.2003, the respondent No.1 and 2 have no legal authority to issue marks sheet. The relevant portion of the notification dated 12.03.2001 embraces as follows:
 
সরকার মাধ্যমিক ও উচ্চ মাধ্যমিক স¹­রর পাবলিক পরীক্ষার ফলাফল লেটার গ্রেডিং পদ্ধতির প্রকা­শর সিদ্ধা¿¹ গ্রহন ক­র­ছz এ ল­ক্ষ্য ২০০১ সা­ল অনুষ্ঠিতব্য মাধ্যমিক স্কুল সার্টিফি­কট পরীক্ষা এবং ২০০৩ সা­ল অনুষ্ঠিতব্য উচ্চ মাধ্যমিক সার্টিফি­কট পরীক্ষা থে­ক ফলাফথ লেটার গ্রেডিং পদ্ধতি­ত প্রকাশিত হ­বz এ বিষ­য় নি­ম্নাও্র সিদ্ধা¿¹ অনুসরন কর­ত  হ­বz
(ক) পরীক্ষার উত্তী­র্ণর কোন বিভাগ উ­ল্লখ থাক­ব না শুধু প্রতি বিষ­য় প্রাপ্ত লেটার গ্রেড এবং সকল বিষ­য় প্রাপ্ত Grade Point (GP) এর ভিত্তি­ত পরীক্ষার্থীর Grade Point Average (GPA) উ­ল্লখিত থাক­বz লেটার মার্ক ও মার্ক প্রদান এবং মেধা তালিকা প্রনয়ন বা প্রকাশ ইত্যাদি প্রচলিত প্রথা থাক­ব না
        
Hence no specific marks could be supplied.
 
It is stated that the statements made with regard to the petitioner’s application dated 11.01.2011 (annexure- F) and statement in that regard in the petition is a departure from the statements made in the said application as the relevant portion of the statements made in his application dated 11.01.2011, is as follows:

       স্মতর্ব্য, অতি সঙ্গতকার­ণই নিম্ন স্বাক্ষরকারী নম্বরপত্র (Mark Sheet) চে­য় আপনা­দর নিকট আ­বদন ক­র­ছ এবং নম্বরপ­ত্রর (Mark-sheet) খরচাদি বহন কর­ত রাজী হ­য়­ছz আপনা­দর নি­র্দশ পে­ল নম্বর প­ত্রর (Mark-sheet) সমস খরচাদি অগ্রীম আপনা­দর অফি­স জমা দেয়া হ­ব এ বিষ­য় নিম্ন স্বাক্ষীরকারী আপনা­দর নিকট প্রতিশ্রুতিবদ্ধ এবং বাধ্যz এখন প্রার্থনা হ­চ্ছ, হয় নম্বরপত্র GPA-5 দয়া ক­র ইস্যু করুন নতুবা এই পরীক্ষার্থী ০|৭০ নম্বর পুরন ক­র দি­য় রেজাঢ~ প্রদান করুনz এটাই আমার আরিক ও বিনীত নি­বদন আপনা­দর সক­লর প্রতি
 
Since the board has no authority to increase the Grading Point, so his prayer could not be allowed. The board has no authority to give result by adding 0.70 marks over the existing result of 4.30 GPA number. The board cannot fulfil such demand at the sweet-will of the petitioner. And it is further stated that the petitioner was given reply through SMS earlier and his result are available in website of Dhaka Board.

The existing rules/regulation and system of the Dhaka Board are contrary to the petitioner’s claim and hence the request of the father of the petitioner could not be acceded to and it is stated in this connection that respondent No. 2 is responsible for ensuring and maintaining strict secrecy of all information regarding the examination of the Board as per Regulation 3(2)(iv) of the Schedule to the First Regulations of the Board provided in the Intermediate and Secondary Education Ordinance, 1961, as such, since the fË‘¡fe (Notification) being a limited public document is available everywhere, so the petitioner’s demand was to supply him mark sheet which could not be done under the existing system of the Board/Government and hence it was denied.

The claim to the effect that the said প্রজ্ঞাপন (Notification) dated 04.01.2003 introducing grading system in S.S.C., H.S.C. and Alim Examinations in Bangladesh violating the provisions of the Intermediate and Secondary Education Ordinance (E.P. Ordinance No. XXXIII of 1961) is ultra-vires to the said Ordinance is not correct. The প্রজ্ঞাপন (Notification) is a circular of the শিক্ষা ম¿»নালয়ন (Education Ministry) which has got no legal basis and that circular প্রজ্ঞাপন (Notification) cannot be treated as a law of the country is also misleading and misconceived as according to Article 152 of the Constitution প্রজ্ঞাপন (Notification) has been defined as law. The Education Ministry representing the Government has every authority to frame law and issue প্রজ্ঞাপন (Notification) and the Education Board is the instrument for implementation of those প্রজ্ঞাপন (Notification). The তথ্য অধিকার আইন, ২০০৯ has not given the petitioner such right as to obtain for him the  subject wise marks instead of Grade Point.

The petitioner earlier filed Writ Petition No. 8830 of 2011 praying for direction on the respondents to issue mark sheet to the petitioner. A Division Bench of this Court after hearing the said writ petition as a motion found it improper to issue Rule unless the প্রজ্ঞাপন (Notification) dated 04.01.2003 is impugned and the petitioner did not press the petition. As per notification প্রজ্ঞাপন (Notification) dated 12.03.2001 and 04.03.2003 the Board, respondent Nos.1 and 2, has got no legal authority to supply/ give mark sheet to the petitioner, as the preamble of the notification dated 12.03.2001 provides, সরকার মাধ্যমিক ও উচ্চ মাধ্যমিক স¹­রর পাবলিক পরীক্ষার ফলাফল ­লটার গ্রেডিং পদ্ধতি­ত প্রকা­শর সিদ্ধা গ্রহন ক­র­ছ এ ল­ক্ষ্য ২০০১ সা­ল অনুষ্টিতব্য উচ্চ মাধ্যমিক সার্টিফি­ক­ট পরীক্ষা এবং ২০০৩  সা­ল অনুষ্ঠিতব্য উচ্চ মাধ্যমিক সার্টিফি­কট পরীক্ষ্য থে­ক ফলাফল লেটার গ্রেডিং পদ্ধতি­ত প্রকাশিত হ­বz এ বিষ­য় নি­ম্নাও্র সমূহ অনুসরণ কর­ত হ­বz and clause ‘Ka’ of the said  notification provides, পরীক্ষার উত্তী­র্ণর কোন বিভাগ উ­ল্লখ থাক­ব নাz শুধু প্রতি বিষ­য় প্রাপ্ত লেটার গ্রেড এবং সকল বিষ­য় প্রাপ্ত Grade Point (GP) এর ভিত্তি­ত পরীক্ষার্থীর Grade Average (GPA) উ­ল্লখ থাক­বz লেটার মার্ক ও Öঢ~ার মার্ক প্রদান এবং মেধা তালিকা প্রনয়ন বা প্রকাশ ইত্যাদি প্রচলিত প্রথা থাক­ব নাz” and as the regulation 3(2) (IV) of the Schedule to the First Regulation of the Board under the Intermediate and Secondary Education Ordinance, 1961 provides that the respondent No. 2 as Controller of Examination, Board of Intermediate and Secondary Education, Dhaka shall be responsible for ensuring and maintaining strict secrecy of all information regarding the examination of the Board, the respondent Nos. 1 and 2 cannot be made responsible for gross negligence and alleged harassment made to the petitioner by not issuing mark sheet,  and sine they follows the notification, a provisions of law, so it did not caused harassment to the petitioner by not issuing mark sheet, and as such, nobody having violated any provision of law, and therefore is not subject to any disciplinary action. And in reply to the affidavit-in-opposition filed by the respondent Nos. 1 and 2, the petitioner stated that the respondent Nos. 1 and 2 regarding publication of Examinations result dated 15.07.2010 and this petitioner got plain academic transcript without specific marks from the office of the respondent Nos. 1 and 2 are correct, but the statements regarding specific marks, which has are not shown in the transcript is misleading, vexatious and mala-fide. Moreover প্রজ্ঞাপন নং শাঃ ১১/১০(১)/২০০১/ ২৬৭-শিক্ষা dated 12.03.2001 and subsequent amendment of the প্রজ্ঞাপন bearing number শিম/শাঃ ১৯/৭ পরীক্ষা-২ (গ্রেডিং)/২০০২/৬১০ dated 04.01.2003 are misleading, vexatious, mala-fide one. Nowhere of those two প্রজ্ঞাপন it is stated that the supply and distribution of marks-sheet are henceforth had been postponed and/ or cancelled.

The contention of the petitioner that no information was given by the respondent Nos. 1 and 2 by way of SMS from the website of Dhaka Education Board has been denied as it is very much stated that the Board has no authority to increase grading number and to give result by adding 0.70 marks over the existing 4.30 GPA Number are all misinterpretation and misrepresentation of the concerned statute.

The তথ্য অধিকার আইন, ২০০৯ and its ফরম ক is a statutory provision, a special law, and does not allow the petitioner to claim something that is not allowed to be disclosed or supplied in violation of the relevant statute, i.e. প্রজ্ঞাপন নং শাঃ ১১/১০(১)/২০০১/২৬৭-শিক্ষা dated 12.03.2001 and subsequent amendment of the প্রজ্ঞাপন bearing number শিম/শাঃ ১৯/৭ পরীক্ষা-২ (গ্রেডিং)/ ২০০২ /৬১০ dated 04.01.2003.

Mr. M. Qumrul Haque Siddique, with Mr. A.K.M. Salahuddin Khan, the learned Advocates appearing for the petitioner submitted that the petitioner applied for re-scrutiny on 18.07.2010 on payment Taka 4 X 300= 1200.00 and the respondent Nos.1 and 2 received the money but they did not scrutinizes the matter or informed the petitioner of any action taken by them, which is a breach of the responsibility of a person performing functions of the local authority and as such the respondents are liable to be directed to discharge their obligations.

He further submitted that the petitioner appeared in the H.S.C. Examination on payment of Examination fees as prescribed and thereby the petitioner has acquired a right under the Rules and Regulations of the Dhaka Board to get the result of the examination in terms of the marks secured in different subjects but the respondents are most illegally depriving the petitioner from getting the marks he got in evolution of the answers scripts in different subjects.

He again submitted that প্রজ্ঞাপন dated 04.01.2003 made by the respondent No. 3 as assured against the demand of the petitioner does not by its letter or its spirit prevents the respondent No.1 and 2 from giving mark-sheet to the petitioner when the petitioner is ready and willing to bear costs.

Mr. Siddique, further submitted that the respondent No. 2 by letter dated 23.01.2011 advised father of the petitioner to apply in the form “N”  prescribed by তথ্য অধিকার আইন, ২০০৯ and thereby entered into an obligation to give mark-sheet but subsequently remained silent, and thereby the respondent Nos. 1 and 2 have made it clear that they do not want to do but they are required under law to do, and as such, the respondents are liable to be directed to give mark sheets of the petitioner, since there are no legal bar.

He further contended that the mark sheet in question is a public record as per law; the authority is bound to issue mark sheet from public records made there from public examination like H.S.C. Examination, 2010 without any question and according to the demand of this petitioner on payment, if any is prescribed by law.

He referred to the observations made in University of Rajshahi, represented by the Vice Chancellor vs. Md. Abdul Mannan Bhuiyan and others, that ‘the University acted against the petitioner resorting to all possible steps of delaying the matter of re- examination of the answer script in question. The totality of the matter shows wrath and biasness of the mind of the University to the writ petition.’

Mr. Siddique, further submitted that there is no bar in the প্রজ্ঞাপন dated 04.01.2003 (annexure- M) to supply transcript of the mark-sheet of the examination. By referring to Farah Tasnim Raisa vs. Bangladesh and others, 64 DLR 248, wherein it was observed inter alia that:
 
A public and/or constitutional authority must act reasonably required to do within the ambit of the concerned law. The reasonableness and rationality can be read together in the instant case, wherein the Education Board is given the responsibility to act fairly, diligently and reasonable in applying the law. It never had the authority to override the metes and bounds of law, which it did. So a legitimate expectation cannot be defeated by a public/constitutional body, which is set by law to be followed by a public functionary.
 
Mr. Mizanur Rahman, the learned Advocate appearing for the respondent No. 2 the Controller of Dhaka Education Board submitted that the date of result of the petitioner’s HSC examination was published on 15.07.2010, and thereafter he was issued with a academic transcript bearing Grade Points as per notification No. শাঃ ১১/১০৯১৮/ ২০০১/২৬৭-শিক্ষা dated 12.03.2001 and subsequent amendment of the notification bearing No. শিম/শাঃ ১০/৭ পরীক্ষা-২/(গ্রেডিং)/ ২০০২/ ৬১০ dated 04.01.2003. The respondent Nos.1 and 2 have no legal authority to issue marks sheet as the notification dated 12.03.2001 (ibid) does not any way either entitles the petitioner to get marks sheet or, authorises the respondents to issue marks- sheet.

He further submitted that the petitioner’s application dated 11.01.2011 (annexure- F) and statement in that regard in the petition is a departure from the statements made in the said application. In the application the petitioner asked for improving his GPA from 4.30 to 5.0 and also for supplying marks sheet. The board has no authority to increase grading number, as prayed by the petitioner, so his prayer was refused.

He again submitted that the প্রজ্ঞাপন (Notification) dated 04.01.2003 introducing grading system in S.S.C., H.S.C. and Alim Examinations in Bangladesh is in conformity with the provisions of the Intermediate and Secondary Education Ordinance (E.P. Ordinance No. XXXIII of 1961) and it is a law as per Article 152 of the Constitution. The Education Ministry representing the Government has every authority to frame law and issue প্রজ্ঞাপন (Notification) and the Education Board is the instrument for implementation of those প্রজ্ঞাপন (Notification). The তথ্য অধিকার আইন, ২০০৯ has not given the petitioner such right as to obtain for him the  subject wise marks instead of Grade Point.

Mr. Rahman, further contended that as per notification প্রজ্ঞাপন (Notification) dated 12.03.2001 and 04.03.2003 the Board (respondent Nos.1 and 2) has no legal authority to give mark sheet to the petitioner as preamble of the notification dated 12.03.2001 provides (ibid) and as the regulation 3(2) (IV) of the Schedule to the First Regulation of the Board under the Intermediate and Secondary Education Ordinance, 1961 provides that the respondent No. 2 as Controller of Examination, Board of Intermediate and Secondary Education, Dhaka shall be responsible for ensuring and maintaining strict secrecy of all information regarding the examination of the Board, as such, a valid denial to supply marks sheet as per law cannot be termed as an act ultra vires to the Constitution offending a fundamental right of the petitioner.

He further agitated that the Board has no authority to increase grading number and to give result by adding 0.70 marks over the existing 4.30 GPA Number and therefore the present Rule obtained by the petitioner under the disguise asking for marks sheet is an unfair practice and therefore the Rule is liable to discharged.

On perusal of the submission of the learned Advocates of both the sides, the petition, affidavit-in-opposition and the annexed documents the crux of the issue crystallises to the point with regard to the supplying of transcript of the public examination held under the control and supervision of the Dhaka Board. Although it is pertinent to note that the Education Ministry, therefore the respondent No. 3 is time and again superseding the authority of the Education Board, Dhaka which was established under the Board of Intermediate and Secondary Education Ordinance (Ordinance No. 33 of 1961), 1961. The Ministry of the Education by passing such authority frequently issuing circulars and orders in total disregard to the constitutional mandate. If we look into the circular dated 04.01.2003, this circular was issued by a Senior Assistant Secretary at his own accord without mentioning under whose authority he has issued the circular direction, which is in total violation of the Constitutional provision embraced in Article 55(4) of the Constitution and apart from that Article 31 of the Constitution clearly emphasises the provision that a citizen’s right be protected in accordance with law and only in accordance with law.

In the instant writ petition we find that the Dhaka Education Board was established in 1961 as an independent body to control and supervises its own affairs but in total disregard to an Act of Parliament, i.e. the Ordinance No. 33 of 1961, the Education Ministry, i.e. respondent No. 3, is supervising and controlling it and issued the grading system and the circular dated 04.01.2003, which is also in total disregard to the Ordinance No. 33 of 1961, therefore the circular dated 04.01.2003 is issued without lawful authority and is of no legal effect.

It is very pertinent to mention that a circular as per Article 152 of the Constitution is a law, as such, it has a force of law but the question as to the validity of the circular itself is pertinent. All the circulars with regard to shifting to grading system and so on in that regard is done in violation of the provisions of Ordinance No. 33 of 1961. However, since the Secondary and Higher Secondary Education Board, Dhaka has adopted the same and rendering their act would render all the acts and deeds done so far will paralyse the affairs of the Board.

The petitioner’s claim that result of an examinee is a public document and be supplied relates only to the examinee only, not to the others, unless authorised by law to have access to the same. The petitioner also claimed that the Dhaka Education Board ought to have supplied transcript of the petitioner’s H.S.C. result as a matter of right and under the provision of তথ্য অধিকার আইন, ২০০৯z However, since the existing system of the Education Board did not allow issuance of mark sheet entailing detailed marks, it only has the provision of supplying transcript narrating Grade Points only, as such, denial of supplying mark sheet under the তথ্য অধিকার আইন, ২০০৯ is quite justified. Any information which is not allowed by the basic statute, cannot be supplied or disclosed under the তথ্য অধিকার আইন, ২০০৯.

The contention of the respondents that the Ministry of Education has the authority to issue any circular, order etc. for the betterment and development of the overall education is not correct. The Ministry cannot override the authority of the Education Board bestowed upon it by virtue of the ordinance 33 of 1961, Article 31, clearly embraces that:
 
To enjoy the protection of the law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.
 
As such, the Ministry should keep itself within the ambit of constitutional and statutory provisions, i.e. it must not encroach upon the authority of Education Board that is specifically entrusted to them by the said statute, however, Ministry has the authority to do acts which are not engulfed within the said statute.
 
It is sad to note that the petitioner has claimed raising of 0.70 points in his GPA, which he has calculated absolutely wrongly. The petitioner has secured GPA 4.30 and raising that to GPA 5.0 means giving him more 50 marks, is absolutely unjustified. However the paramount contention in the instant writ petition is with regard to supplying of mark sheet elaborately specifying the marks obtained by an examinee subject wise, as was done previously before introduction of the present system. There is no contention with regard to introduction of grading system but denying an examinee to know the marks he/she has obtained in S.S.C. and H.S.C. examination is opposed to his/her fundamental right, as such we find merit in the Rule.
 
In the result, the Rule is made absolute. The Dhaka Education Board would formulated its system to supply transcript, if asked for by an examinee, of S.S.C. and H.S.C in future. And the present petitioner be supplied with his transcript, mark sheet, for his H.S.C. examination within 30(thirty) days from the date of receipt of this judgment and order, however, this order shall only have prospective effect.
 
Ed.