Case No: Civil Petition for Leave to Appeal No. 1615 of 2008
Judge: Md. Joynul Abedin ,
Court: Appellate Division ,,
Advocate: Mrs. Sufia Khatun,,
Citation: VI ADC (2009) 971
Case Year: 2009
Appellant: Md. Azizul Hoque
Respondent: Md. Aftabuddin
Subject: Employment & Service,
Delivery Date: 2009-3-1
MM Ruhul Amin, CJ.
Mohammad Fazlul Karim, J.
Md. Tafazzul Islam, J.
Md. Joynul Abedin, J.
Md. Abdul Matin, J.
Md. Azizul Hoque
Md. Aftabuddin and others
March 1, 2009.
Plaintiff was entitled to continue as the Assistant Teacher with all benefits attached to the Post. . ….. (5)
Sufia Khatun, Advocate-on-Record-For the Petitioner.
Seikh Atiar Rahman, Advocate, instructed by Aftab Hossain, Advocate-on-Record-For Respondent No. 1.
Not represented-For Respondent Nos. 2-5.
Civil Petition for Leave to Appeal No. 1615 of 2008
(From the judgment and order dated 23.4.2008 passed by the High Court Division in Civil Revision No.706 of 2006)
Md. Joynul Abedin J.
1. This petition for leave to appeal is directed against the judgment and order dated 23.4.2008 passed by a Single Bench of the High Court Division in Civil Revision No.706 of 2006 making the rule absolute and thereby reversing the judgment and decree dated 17.11.2005 passed by the learned Joint District Judge, 2nd Court, Manikganj in Title Appeal No.65 of 2005 allowing the appeal setting aside the judgment and decree dated 23.4.2005 passed by the Senior Assistant Judge, Upazila, Manikganj Sadar in Title Suit No.112 of 2004 decreeing fee suit.
2. The respondent No.1 instituted Title Suit No.112 of 2004 for declaration that the order of cancellation of his appointment as Assistant Head Master of Khabashpur Labonya Prova High School is illegal, void, collusive and not binding upon him. The short fact of the cases is that the plaintiff joined the said school on 13.5.1996 as Assistant Teacher (Agriculture) and thereafter on 1.1.1997 as Assistant Teacher (Biology). During his service as Assistant Teacher, the post of Assistant Head Master was lying vacant for which on 18.8.2003 a circular was published in the Daily Inquilab for the said post. The plaintiff with the consent of the authority applied for the said post and the authority on the basis of numbers obtained in the written examination and viva-voice examination of candidates appeared in the examination selected the plaintiff for the post, of Assistant Head Master and the Managing Committee on 7.9.2003 issued appointment letter to him. The plaintiff accordingly submitted his resignation from the post of Assistant Teacher and joined in the post of Assistant Head Master on 10.9.2003 and he signed the Hajira Book upto 13.5.2004 as Assistant Head Master and drew salary from September, 2003 to January, 2004. According to the condition of the appointment letter, the Head Master of the School through District Education Officer sent a letter to the Director General for approval. The plaintiff took leave for 2(two) days and when on 17.5.2004 he was signing the attendance register the Head Master told him that his appointment was cancelled and a letter to that effect was sent by post and the plaintiff received the same on 22.5.2004. The plaintiff thereupon filed an application to the Head Master for reconsideration of the said letter of cancellation but in vain which compelled him to file the instant suit.
3. The defendant Nos.1-8 contested the suit by filing written statement denying the material allegations made in the plaint but the defendant Nos. 9-10 supported the case of the plaintiff.
4. The learned Senior Assistant judge, Upazila Manikgonj Sadar having found that the plaintiff succeeded to prove his case decreed the suit by the judgment and decree dated 20.1.2005 in favour of the plaintiff.
5. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by the learned trial court the defendant petitioner preferred Title Appeal No. 65 of 2005 before the learned District Judge, Manikgonj and thereafter the learned Joint District Judge, 2nd Court, Manikgonj heard the appeal on transfer and allowed the same by his judgment and decree dated 27.11.2005 by setting aside the judgment and decree passed by the trial court with an observation that the plaintiff was entitled to continue as the Assistant Teacher with all benefits attached to the post.
6. Being aggrieved and dissatisfied with the aforesaid judgment and decree the plaintiff respondent filed Civil Revision No. 706 of 2006 in the High Court Division and a Single Bench of the High Court Division thereafter having heard the rule made the same absolute. Hence the defendant petitioner filed the present civil petition for leave to appeal.
7. Mrs. Sufia Khatun, the learned Advocate-on-Record for the petitioner submits that admittedly the plaintiff respondent was removed from the post of Head Master after the cancellation of his appointment as Head Master and he having filed the suit only for declaration simpliciter without any prayer for re-instatement in the said post his suit is hit by section 42 of the Specific Relief Act for not praying for any consequential relief. He lastly submits that the plaintiff during pendency of the rule filed an application to join in his earlier post of Assistant Teacher on the basis of observation given by the appellate court and as such he waived his claim for the post of Assistant Head Master but the High Court Division most illegally made the rule absolute in utterly failing to appreciate this legal position.
8. We have heard the learned Advocate-on-Record and perused the connected papers including the impugned judgment. We do not find any substance in the points raised. The High Court Division upon correct assessment of the materials on record arrived at a correct decision. We therefore find no reason to interfere with the same.
The petition is accordingly dismissed.