Mofizul Huq Vs. Mofizur Rahman and others, 49 DLR (AD) (1997) 38

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Md. Aftab Hossain,Mr. T. H. Khan,Mr. Fazlul Karim,,

Citation: 49 DLR (AD) (1997) 38

Case Year: 1997

Appellant: Mofizul Huq

Respondent: Mofizur Rahman and others

Subject: Local Government,

Delivery Date: 1996-3-5


Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J.
Md. Abdur Rouf J.
 
Mofizul Huq
………………...Appellant
Vs.
Mofizur Rahman and others
……..………….Respondent
 
Judgment
March 5th, 1996  
 
General Clauses Act (X of 1897)
Section 3(28)
Local Government (Union Parishads) Ordinance, 1983
Section 7(2)(e)
A recognized non-government secondary school does neither become a statutory body nor a ‘local authority’ within the meaning of the General Clauses Act. That being the position in law, the appellant does not become disqualified for being a Chairman of the Union Parishad under section 7(2)(e) of the Ordinance of 1983 by reason of being a full-time teacher of the Sammilani Girl’s High School.….. (20)
 
Cases Referred to-
Vaish Degree College vs. Lakshmi Narain AIR 1976 (SC) 888; Panchkaxi Halder vs. Puma Chandra Halder 1984(2) CU 89; AISSE Assocn, vs. Defence Minister -cum - Chairman, BOG, SS Socy., AIR 1989 (SC) 88.
 
Lawyers Involved:
TH Khan, Senior Advocate, instructed by Md, Nawab Ali, Advocate-on-Record — For the Appellant. 
Md. Fazlul Karim, Senior Advocate, (SS Halder, Senior Advocate with him) instructed by Md. Aftab Hossain, Advocate-on — For the Respondent No. 1.
Not represented—Respondent Nos. 2-11.


Civil Appeal No. 60 of 1995
(From the Judgment and order dated April 26, 1995 passed by the High Court Division, Dhaka in Writ Petition No. 21 of 1995).

 
JUDGMENT
ATM Afzal CJ:
 
The moot question in this appeal by leave is whether the High Court Division is right in holding that a recognised non-government secondary school is a local authority within the meaning of section 7(2) (e) of the Local Govern (Union Parishads) Ordinance), 1983, briefly, the Ordinance and that the appellant being a full time teacher disqualified from being a Chairman of Union Parishad thereunder.
 
2. Respondent No. 1 who is a voter in the concerned Union filed Writ Petition No. 21 of 1995 calling upon the respondents including the appellant who was made respondent No. 11 therein, to show cause, among others, as to under what authority he(the appellant) was holding the office of the Chairman of Hoglapasha Union Parishad within Police Station Morrelgonj, District Bagerhat. It is inter alia, stated that the appellant and one Probir Kumar Halder contested the election for the office of Chairman of the said Union Parishad which took place on 6-2-1992 and the appellant was declared elected by a Gazette notification dated 5-3-1992. The writ-petitioner alleged that respondent No. 11 (the appellant) is a teacher of the Sammilani Girls’ High School situated at village Boalpur, PS Morrelgonj, District Bagerhat which is a non Government secondary school within the meaning of section 2(1) (h) (j) of the Intermediate and Secondary. The Education Ordinance, 1961 (Ordinance No. XXXIII of 1961) as amended by the amending Ordinance of l977 (Ordinance No.  XVII of 1977); The appellant was thus disqualified for election to the office of Chairman of the said Union Parishad under section 7(2)(e) of the aforesaid Local Government Ordinance of 1983 read with the provisions of section 30(1) (b) of the aforesaid Ordinance No.  XXXIII of 1961. The appellant filed nomination paper on 7-12-91 suppressing the fact of his disqualification as aforesaid and contested the election held on 6-2-1992 and that he is still in service of the said school as a teacher without any cessation or break and, as such, he has got no lawful authority in holding the office of Chairman of the said Union Parishad and he is liable to be directed to vacate the said office. The other contesting candidate is entitled to hold the said office of Chairman as duly elected uncontested under Rule 20 (3) of the Election Rules. 
 
3. The appellant filed an affidavit-in- opposition denying the allegation of the writ- petitioner as to his alleged disqualification under the Ordinance in question for being the Chairman of the Union Parishad concerned. It has been stated that the Sammilani Girls High School is a private High School recognised by the Board of Intermediate and Secondary Education, Jessore and has always been a purely private High School and that its recognition by the Board of Intermediate and Secondary, Education does not change the said High School into a Government High School. The appellant stated that the allegation as to his disqualification was made upon a wrong view of the law. He was elected Chairman of the said Union Parishad in 1973, 1977, 1983 and 1992 and that he is still functioning as the Chairman thereof. The contention of the writ-petitioner was misconceived and frivolous and, as such, liable to be rejected. It was further stated that the writ-petitioner was a camp-follower of the defeated candidate Probir Halder who having lost in the Election Tribunal Case No.  14 of 1992 set up the writ-petitioner, who, by deliberately suppressing the fact as to the election petition by Probir Halder and its result, misled the High Court Division and succeeded in not only obtaining a Rule but also an order of injunction against the appellant writ-petitioner also suppressed the fact that the Writ P No. 1649 of 1992 filed by the said Probir Halder challenging the acceptance of the nomination has been serving as the Headmaster of the said paper of the appellant was summarily rejected by the school since long before. It is alleged that the High Court Division on 4-5- 1992. 
 
4. The appellant, it seems, was not represented at the hearing of the writ petition in the High Court Division and it has been explained in the petition for leave to appeal as to how the default was made by the learned Advocate for the appellant. Be that as it may, it appears from the impugned judgment that in support of the argument made on behalf of the writ-petitioner that the appellant was disqualified for being a Chairman of the Union Parishad on the ground of his holding the full-time job of a teacher of the local Sammilani Girls’ High School which is a ‘local authority’ within the meaning of section 7 (2)(e) of the Local Government Ordinance, 1983, reliance was placed on the case of Abdul Mazid vs. Abu Zaffar Mohammad Khalil & ors., 14 BLD (HCD) (1994) 488, which was a decision by a Single Judge who incidentally happened to be the presiding Judge of the Division Bench hearing the writ petition. The learned Junior Judge who delivered the impugned judgment in the writ petition quoted ad verbatim from the said decision and held in concurrence therewith that the appellant who is a teacher of the aforesaid Girls’ High School has been holding an office of profit in the service of a ‘local authority’ and thereby he is debarred from being a Chairman of the Union Parishad in view of the aforesaid provision of section 7(2) (e) of the Ordinance of 1983. The Rule was accordingly made absolute by the impugned judgment and order dated 26 April 1995.
 
5. Among other operative orders recorded in the impugned judgment it has been ordered, which is found to be quite unusual, that “accordingly we make him (appellant) unseated from the post of the Chairman of the said Union Parishad.” It was not required to make that kind of an order but a mere declaration that the appellant was holding the office of Chairman of the Union Parishad without any lawful authority was enough. Such a declaration having actually been made the order as above was neither proper nor called for.
 
6. Leave was granted to consider the submission that the decision, 14 BLD (HCD) 488, holding that the secondary school in question is a ‘local authority’ as defined in the General Clauses Act, 1897 (Ordinance No. X of 1987) upon which reliance was placed in the impugned decision is based on a misinterpretation and misconstruction of the provisions of section 7(2)(e) and section 30(1)(b) of the aforesaid Ordinance of 1983 and 1961 respectively read with the definition of ‘local authority’ in the General Clauses Act.
 
7. The submission was that the Board of Intermediate and Secondary Education is a ‘local authority’ having been established by the Government under the Ordinance of 1961 but a school which is recognised by such Board does not become a local authority itself.
 
8. For an answer to the question raised in this appeal, the correctness or otherwise of the decision, 14 BLD (HCD) 488, is directly in issue and, so to say, the only issue which is required to be answered. The relevant provisions of the laws which came up for interpretation in that decision may be usefully quoted below. Section 7(2)(e) of the Local Government (Union Parishads) Ordinance 1983 reads as follows: 
 
“7. Qualifications and disqualifications of Chairman and members of Union Parishads.
 (1)……………………………………………………..
 (2)A person shall be disqualified for election or nomination as or for being, a Chairman or a member if--
(a) ………………………………………..        
(b) ……………………………………….
(c) ………………………………………….     
(d) ………………………………………….
(e) he holds any full-time office of profit in the service of the Republic or of the Union Parishad or of any other local authority; or
(f)……………………
(g)…………………
(h)…………………………………………….
Section 30 of the Ordinance of 1961 provides:
30. (1) An employee of a recognised Intermediate College or Secondary School shall be bound by the following general conditions of service, namely:
(a)……………………………………..
(b) he shall not canvass or interfere or use his influence or stand as a candidate in any election to a local body or a legislative body in Bangladesh.
(2) any person, who contravenes any of the conditions of service as stated in sub-section (I) shall be liable to disciplinary action including removal from his post by an order of authority which appointed such person on proceeding initiated against him.
(3) ………………………………………… “
 
9. The definition of ‘local authority’ under the law’ a General Clauses Act as substituted by President’s Order No.  147 of 1972 is as follows: 
 
“Section 3 (28) “Local Authority” “Local authority” shall mean and include a Paurashava, Zilla Board, Union Panchayet, Board of Trustees of a port or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund or any corporation or other body or authority constituted or established by the Government under any law.

In the aforesaid decision the question of disqualification of the petitioner, who was a teacher of the local secondary school, under section 7 (2)(e) of the Ordinance of 1983 came up for consideration. It was observed that the question is whether the petitioner held a full-time office of a ‘local authority’ within the meaning of aforesaid section 7(2)(e). The definition of ‘local authority’ in the General Clauses Act as quoted above was reproduced and the last few words in the said definition were underlined (which has been followed quoting the said definition as above). In the impugned judgment the relevant paragraph (No.  7) of the decision, 14 BLD (HCD) 488, has been fully quoted and it will be useful to quote the relevant portion of the said paragraph which bears the entire reason of the decision. It reads: 
 
“7. Thus, it seems that the expression “other body or authority” constituted or established by any law is local authority. As the expression “any authority” falls in the inclusive definition of the local authority it cannot be said that “any authority” does not include the school in question, specially in absence of any explicit language in the Ordinance by which the expression “School” is excluded from the definition of “any authority”. Therefore, on interpretation of section 7 of the Local Government (Union Parishads) Ordinance, 1983 read with section 30(l)(b) of the Intermediate and Secondary Education Ordinance, 1961 I hold that the school is a local authority……….”.
 
10. It will be seen from the above that the learned Judge completely missed that ‘other body or authority’, to mean and to be included in the definition of ‘local authority’, must only be constituted or established under any law (not ‘by any law’ as wrongly held) but the same must be constituted or established ‘by the Government’. The learned Judge seems to suffer from an apparent misconception by holding that as the expression ‘any authority’ falls in the inclusive definition of ‘local authority’ it cannot be said that ‘any authority’ does not include the school in question, specially in absence of any explicit language in the Ordinance (of 1983) by which the expression ‘school’ is excluded from the definition of ‘any authority’. The learned Judge has not at all considered whether a secondary school fits in that part of the definition of ‘local authority’ as has been underlined by him. The question to which he should have addressed himself is: Is the secondary school in question a body or authority’ constituted or established by the Government under any law? That question which is the only material question has not apparently occurred at all to the learned Judge. It must be held therefore that the view taken in that decision that a secondary school is a ‘local authority’ is based on a misconception and misinterpretation of the definition of ‘local authority’ as quoted above. 
 
11. ‘Local authority’ has not been defined in the Local Government (Union Parishads) Ordinance 1983. Therefore reference has to be made to the General Clauses Act for a meaning thereof, but without considering whether a secondary school answered the description underlined by the learned Judge in the definition of ‘local authority’, it has been said that on interpretation of section 7 of the Ordinance of 1983 read with section 30(1)(b) of the Ordinance of 1961 “I hold that the school is a local authority”. It will be seen that the learned Judge has been suffering from a running misconception in that he failed to notice that section 30 of the Ordinance of 1961 is not at all relevant for a consideration as to whether a secondary school is a ‘local authority’.
 
12. Mr. Fazlul Karim learned Advocate for respondent No. 1, found it difficult to support the reasoning given by the learned Judge for his aforesaid interpretation of law, but he submitted that the conclusion arrived at, however, can be supported by other reasons which do not find place in the said judgment. We shall consider the other reasons advanced by Mr. Fazlul Karim shortly but before proceeding further we would like to observe, which is of course not very relevant for the question raised in this appeal, that the view taken by the learned Judge that a teacher of a secondary school is disqualified for ejection as Chairman of a Union Parishad under section 30(1)(b) of the Ordinance of 1961 and that the provisions of section 30(l)(b) and section 30(2) thereof are independent of each other and mutually exclusive is not correct. Section 30(1) (b) does not provide for any disqualification but lays down some prohibitions for an employee of a recognised intermediate college or secondary school as conditions of his service and sub-section (2) provides for penalty for a contravention of the said conditions of service and, as such, the said provisions are neither independent nor mutually exclusive as has been wrongly held in the said judgment. Mr. Faziul Karim has frankly submitted that he cannot support this part of the decision also but he has argued that the learned Judge was very much influenced, wrongly though, by the provisions of section 30(1)(b) of the Ordinance of 1961 in interpreting that a secondary school is a ‘local authority’ within the meaning of the General Clauses Act.
 
13. Mr. Fazlul Karim has argued that a secondary school comes within the description as delineated in the last part of the definition of ‘local authority’ as given in the General Clauses Act. By the last part of the definition, Mr. Karim has made it clear that he means that portion which has been underlined by the learned Judge (as reproduced above). In other words, he means to say that a secondary school is a body or authority constituted or established by the Government under a law. When asked as to what that law is, Mr. Karim referred to the Ordinance of 1961. He, however, hastened to add that, strictly speaking, a secondary school is neither constituted nor established by the Government under the said law but from the different provisions made thereunder and other laws including the Constitution it should be inferred that a recognised secondary school is a statutory body entrusted with the implementation of a fundamental principle of state policy of establishing a uniform, mass-oriented and universal system of education for carrying out the objective of the Government to reorganise the secondary education in the country and accordingly, a recognised secondary school which is largely financed and regulated by the Government by various laws and regulations is a ‘local authority’. In order to support, what seems to be a long-winding argument, Mr. Karim has, first, referred to Article 17 of the Constitution which provides, among other, that the State shall adopt effective measures for the purpose aforesaid and of relating education to the needs of society, and producing properly trained and motivated citizens to serve those needs. For realising the said constitutional objective, Ordinance No. XXXIII of 1961, besides other laws, has been enacted to reorganise the intermediate and secondary education in Bangladesh. In the said Ordinance, ‘Secondary Education’, ‘Secondary School’ and ‘Headmasters’ of a secondary school have been defined. Provision has been made for establishing a Board for the organisation, regulation, supervision, control and development of intermediate and secondary education in accordance with the provisions of the Ordinance. The Government has been authorised to establish one or more Boards in respect of such area or areas as may be specified in the notification establishing such Board. Under section 18 of the Ordinance the Board has been vested, inter alia, with power to grant recognition or to withhold or withdraw recognition from intermediate colleges and schools under certain circumstances. Regulation No.  12 (4) of the First Regulation of the Board provides that the Board shall accord recognition to secondary schools in Bangladesh if it is satisfied on the basis of inspection reports that conditions prescribed for recognition were satisfactorily fulfilled. The recognition of a secondary school may, however, be cancelled if the Board is satisfied on the basis of reports that conditions of recognition have subsequently ceased to be fulfilled by the school.


14. Mr. Karim has also referred to the Board of Intermediate and Secondary Education, Jessore (Managing Committee of the Recognised Non-Government Secondary Schools) Regulations, 1977 and the Recognised Non-Government Secondary School Teachers (Board of Intermediate and Secondary Education, Jessore) Terms and Conditions of Service Regulation, 1979. Reference-I was also made to Government’s order showing Shall Government contribution towards the salary of teachers and employees of non-government educational institutions and the medical allowance for the said teachers and employees were raised from 70% to 80% and from Taka 100.00 to Taka 150.00 per month respectively.

15. Mr. Karim has argued that it is not disputed that the Sammilani Girls’ High School has been accorded recognition under the aforesaid section 18(2)(ii) read with regulation 12(4) of the First Regulation by the Board of Intermediate and Secondary Education, Jessore and that the major portion of the salary of the teachers and employees of the said school is borne by the Government. Mr. Karim has brought to our notice even an inspection report of the said Girls High School submitted upon inspection by an Assistant Inspector of Education of the Inspection and Audit Directorate of the Ministry of Education. Mr. Karim made all this exercise to impress upon us that a recognised secondary school is a statutory body over which the Government retain much control including the all-important matter of finance and, as such, it is a ‘local authority’.

16. We are far from convinced by the line of reasoning adopted by Mr. Karim and find it impossible to agree with his submission that a recognised secondary school is a ‘local authority’ within the definition as given in the General Clauses Act. It may be examined first whether a secondary school recognised and regulated under the Ordinance of 1961 and substantially financed by the Government is a body constituted or established under the said Ordinance or any other law, so as to make it a statutory body which is the sheet-anchor of Mr. Karim’s submission. To be a statutory body it must, first of all, owe its existence to a statute. In other words, it must be created by or under a statute. There is nothing in the Ordinance of 1961 nor any other law has been brought to our notice showing that a secondary school or, to be more particular, the Sammilani Girls’ High School in this case, is or has been created by or under any law. A distinction must be made between a body or institution which it created by or under a statute and a body or institution which is not so created but is governed by certain statutory provisions for the proper maintenance and administration of the said body or institution. A secondary school is undoubtedly governed by the provisions of the ordinance in question and the various other regulations made thereunder but it does not necessarily follow that the school is a creature of the said Ordinance or any other law. In order to support his argument that a recognised secondary school is a statutory body, Mr. Karim referred to Vaish Degree College vs. Lakshmi Narain AIR 1976 (SC) 888 which upon scrutiny, however, turned out to be a self-defeating citation. In that case question arose whether the executive committee of a private college which was affiliated to a University (Agra) and the said college having agreed to be governed by the provisions of the University Act and the statute and the Ordinances made thereunder was a statutory body. It was held which may be usefully quoted here.
 
“It is, therefore, clear that there is a well-marked distinction between a body which is created by the statute and a body which after having come into existence is governed in accordance with the provisions of the statute. In other words, the position seems to be that the institution concerned must owe its very existence to a statute which would be the fountainhead of its powers. The question in such cases to be asked is, if there is no statute would the institution have any legal existence. If the answer is in the negative, then undoubtedly it is a statutory body, but if the institution has a separate existence of its own without any reference to the Statute concerned but is merely governed by the statutory provisions it cannot be said to be a statutory body.” 
 
17. In the present case Mr. Karim also does not dispute that Sammilani Girls’ High School does not owe its existence to the Ordinance of 1961 or to any other law. The said school like any other secondary school is governed in accordance with the provisions of the said Ordinance and other regulations. We have therefore no doubt in our mind that the Sammilani Girls’ High School is not a statutory body at all.

18. Mr. Fazlul Karim also referred to some other decisions which are not quite relevant for the purpose of determining the issue at hand. In the case of Anwarur Rahman vs. Election Tribunal 27 DLR 300. the question for determination was whether under clause (t) of article 9 of the Bangladesh Local Government (Union Parishad & Pourashava) Order, 1973 which is some what similar to section 7(2)(e) of the Ordinance of 1983, the petitioner who was a whole-time salaried teacher of the University of Dhaka could seek election to the office of Chairman of a Union Parishad. There an argument was advanced on behalf of the petitioner relying on an exception clause as provided in the said clause (f) itself which was not accepted. Then the University was found to be a public statutory corporation as provided in the said clause (f) but that is not an issue in this case.

19. In the case of Panchkari Halder vs. Puma Chandra Halder 1984(2) CLJ 89 question arose whether the appellants who were holding the posts of Inspector under the District School Board were disqualified for election to Gram Panchayet under section 8(b) of the West Bengal Panchayet Act 1973 which postulates that a candidate would be disqualified to such election or to become a member of Gram Panchayet, it he is in service of, or receives remuneration from, the Central or State Government or a Gram Panchayet or Panchayet Samity or a Zilla Parishad. It was held that the District School Board, so far that case was concerned, had no independent existence and every employee under the Board was in fact holding office under the Government. Evidently, this decision is not at all relevant for determining what a ‘local authority’ is meant under the General Clauses Act.
 
20. In yet another case cited by Mr. Karim, we do not see for what purpose, AISSE Assocn, vs. Defence Minister-cum-Chairman, BOG, SS Secy., AIR 1989 (SC) 88 question arose whether the Sainik School Society, the overall control of which vests in the governmental authority, is ‘State’ within the meaning of Article 12 of the Constitution so as to attract the application of Article 14 and the directive principles. The question was answered in the affirmative. The present appeal before us presents no such question and we do not therefore see any relevance of the said decision for the purpose at hand. 
 
Having regard to the definition of ‘local authority’ in the General Clauses Act (quoted above) a non-government secondary school can only be held to be a ‘local authority’, which is not disputed by Mr. Fazlul Karim, if it is found to be a body or authority constituted or established by the Government under any law. The school in question, namely, the Sammilani Girls’ High School of which the appellant is the Headmaster for a long time, is admittedly a recognised non-government secondary school, the very fact that it is a non-government school is sufficient to exclude any suggestion that it is a body constituted or established by the Government. It has not been possible on the part of Mr. Fazlul Karim to refer to any law under which the said school has been constituted or established. It is, however, true that the school like any other non-government secondary school is regulated and managed in accordance with the provisions of the Ordinance of 1961 and the various regulations made thereunder. The Government has control over these schools in a very large measure. Nevertheless it is clear from what has been discussed above that thereby a recognised non-government secondary school does neither become a statutory body nor a ‘local authority’ within the meaning of the General Clauses Act as contended by Mr. Karim. That being the position in law, the appellant does not become disqualified for being a Chairman of the Union Parishad under section 7(2)(c) of the Ordinance of 1983 by reason of being a full-time teacher of the Sammilani Girls’ High School.
 
21. In view of the discussion above, we arc clearly of the opinion that the question raised in the appeal has been wrongly decided by the High Court Division relying quite erroneously upon the decision, 14 BLD (HCD) 488, which is again based upon a misinterpretation and misconstruction of section 7(2)(e) of the Ordinance of 1983 and section 30(1)(b) of the Ordinance of 1961 read with the definition of ‘local authority’ as in the General Clauses Act. 
 
The appeal is, accordingly, allowed without any order as to cost and the impugned judgment and order; are set aside.       
 
Ed.