Md. Mustanisur Rahman and other Vs. Bangladesh, VI ADC (2009) 478

Case No: Civil Petition for Leave to Appeal Nos. 822-823 of 2007

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Syed Mahbubar Rahman,,

Citation: VI ADC (2009) 478

Case Year: 2009

Appellant: Md. Mustanisur Rahman

Respondent: Government of Bangladesh

Subject: Employment & Service,

Delivery Date: 2008-10-26

 
Supreme Court
Appellate Division
(Civil)
 
Present:
MM Ruhul Amin CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
 
Md. Mustanisur Rahman
…. .............Petitioner (In Civil Petition No. 822 of 2007)
Md. Kamrul Hasan and another
……..........Petitioner (In Civil Petition No. 823 of 2007)
Vs.
Bangladesh, rep­resented by the Secretary, Ministry of Education, Secretariat Building, Ramna, Dhaka and others
……........Respondents (In both cases)
 
Judgment
October 26, 2008.
 
The Principal of the college wrongly recommended the names of 9 teachers for promotion leaving aside the names of these respondents. These respondents also completed 8 years of service successfully and as such they were legally entitled to get promotion to the post of Assistant Professor. According to clause 16 of the circular dated 24.10.1995, the petitioners had opportunity to file an appeal before the Government against the impugned orders. The authority rightly issued the impugned orders and as such the rules were liable to be discharged.… (5)
 
Lawyers Involved:
Syed Mahbubar Advocate-on-Record-For the Petitioner (In both the cases).
Md. Taufique Hossain, Advocate-on-Record-For the Respondents (In both the cases).
 
Civil Petition for Leave to Appeal Nos. 822-823 of 2007.
(From the judgment and order dated 11.2.2007 by the High Court Division in Writ Petition Nos. 3770 and 3771 of 2006.)
 
JUDGMENT
 
Md. Joynul Abedin J.
 
1. These two peti­tions for leave to appeal are directed against the common judgment and order dated 11.2.2007 passed by a Division Bench of the High Court Division in Writ Petition Nos. 3770 and 3771 of 2006 discharging the Rules.
 
2. The short fact leading to the filing of the aforesaid leave petitions is as under.
 
3. In Civil Petition for Leave to Appeal  No. 822 of 2007 petitioner Md. Mustanisur Rahman filed Writ Petition No. 3770 of 2006 stating, inter alia, that 12 lecturers including the petitioners of the College got M.P.O. for the month of May, 1997. They completed 8 years of Service and the Governing Body took a resolution on 10.12.2005 to give promotion to the teachers in higher scale. The Managing Committee considering all aspects recommended that out of the 12 teachers, 9 should get promotion to the post of Assistant Professor. Thereafter on 11.11.2005, the Principal of the College sent proposal to the Director General, Secondary and Higher Education Directorate for approval of the recommendation taken by the Managing Committee. But  upon  an application made by the left-out three lecturers, the Senior Assistant Secretary, Shakha-4, the Ministry of Education wrote a letter to the Director General, Secondary  and  Higher Education Directorate, requesting him to enquire into the matter. The matter ultimately came to the Deputy Commissioner, Jessore who directed the Additional Deputy Commissioner (Education and Development), Jessore to enquire into the matter. After enquiry, he submitted a report to the Deputy Commissioner, Jessore who forwarded the same to the Director General, Secondary and Higher Education Directorate on 7.2.2006. After getting the report, respondent No.6, in Assistant Director, Secondary and of Higher Education Directorate sent the impugned letter addressed to the Principal of the college refusing to give of promotion to 9 lecturers to the posts of Assistant Professor as proposed by the Principal. The promotion proposed to be given to 9 teachers  to the post of Assistant Professor was recommended complying with all the provision laid at down in clause 9 of sub-clause (4) of the guidelines published on 24th October, 1995. In order to get promotion to the post of Assistant professor, the con­cerned teacher must have 2nd Class in the examinations. As a matter of fact, 3 teachers who were dropped had no 2nd Class in all the examinations. The committee rightly excluded their names for promotion to the post of Assistant Professor. Considering all aspects, the Governing Body of the college recommended the names of 9 teachers for promotion to the post of Assistant Professor. But the Education Ministry without accepting the recommendation of the Governing Body most illegally refused to give promotion to the teachers. Finding no other alternative and efficacious remedy the petitioner moved the High Court Division and obtained rule.
 
4. In Civil Petition for Leave to Appeal No.823 of 2007 petitioners filed Writ Petition No.3771 of 2006 stating similar facts as in the aforesaid writ petition and obtained rule. Both the rules were heard and disposed of by the said common judgment disposing of the rule in Writ Petition No.377 of 2006 and discharging the rule in Writ Petition No.3770 of 2006.
 
5. Respondent Nos.7, 8 and 9 entered appearance by filing affidavit-in-opposition controverting all the material allega­tions made in the writ petitions. However, the case of the respondent Nos. 7, 8 and 9, in short, is that the appointment, posting, promotion and granting of M.P.O to the teachers and staffs are guided by law, rules a guide­lines issued by the Ministry of Education from time to time. On 26.11.2005, these three respondents filed an application before the Ministry of Education which directed the Director General to enquire into the matter. The matter was enquired into by the Additional Deputy Commissioner (Education and Development), Jessore who submitted report on 31.1.2006 to the Deputy Commissioner, Jessore. The Deputy Commissioner, Jessore, forwarded the enquiry report to the Director General, Secondary Education Board. Considering the said report, the Director General issued the letter impugned in the above writ petitions asking the Principal of the college to deposit excess money drawn by him as salary. The principal of the college wrongly recommended the names of 9 teachers for promotion leav­ing aside the names of these respon­dents. These respondents also completed 8 years of service successfully and as such they were legally entitled to get promotion to the post of Assistant Professor. According to clause 16 of the circular dated 24.10.1995, the petitioners had opportunity to file an appeal before the Government against the impugned orders. The authority rightly issued the impugned orders and as such the rules were liable to be discharged.
 
6. Thereafter a Division Bench of the High Court Division after hearing both the rules discharged the same. Hence the aforesaid petitions for leave to appeal by the petitioners.
 
7. Mr. Syed Mahbubar Rahman, the learned Advocate-on-Record for the petitioners submits that the High Court Division failed to consider the fact that the petitioner in Civil Petition for Leave to Appeal No.822 of 2007 joined as the Principal of the college, therefore the requisite experience of Principle for an established college is not applicable in the instance case and as such the judgment and order passed by the High Court Division is liable to be set aside. He further submits that the respondents issued the impugned order without mentioning the amount of money alleged to have been over-drawn by the Principal, rather vague and unspecific allegation has been brother in connection with the inquiry held upon an application by the respondents who have not been recommended for promotion but the High Court Division failed to consider the matter with judicial mind, therefore the judgment is liable to be set aside. He further submits that it is approved by the Government and non-Government audit that all the Principal of the Non-Government college draws the salary of Tk. 11,000/- (taka eleven thousand only) per month and accordingly the Principal drew the salary in the aforesaid amount but the High Court Division failed to consider the matter, therefore the impugned judgment is liable to be set aside. He lastly submits that the petitioner as a principal of the College did not draw the salary in the scale of Tk. 13,500/- (taka thirteen thousand five hundred only) and even this bill was not approved by the Governing Body and despite it, the High Court Division mentioned the matter in the judgment illegal­ly and as such the impugned judgment is liable to be set aside.
 
8. We have heard the learned Advocate-on-Record of the petitioners 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.
 
Both the petitions are accordingly dis­missed.
 
Ed.