Mrs. Nazma Parveen Vs. Lalmatia Mohila College and others, 1 LNJ (2012) 129

Case No: Writ Petition No. 5396 and 5564 of 2008

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Advocate: Mr. Md. Motahar Hossain,Dr. Naim Ahmed,Mr. Md. Emdadul Haque Kazi,,

Citation: 1 LNJ (2012) 129

Case Year: 2012

Appellant: Mrs. Nazma Parveen

Respondent: Lalmatia Mohila College and others

Delivery Date: 2010-10-07

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
A.K.M. Abdul Hakim, J.
Moyeenul Islam Chowdhury, J.
 
Judgment
07.10.2010








 
Mrs. Nazma Parveen
…...…Petitioner
VS
The Lalmatia Mohila College and others
..……Respondents
 
Roksana Munni
.....…Petitioner
VS
The Lalmatia Mohila College and others
..……Respondents
 
Words and Phrases
Constitution of Bangladesh, 1972
Article 102
General Clause Act (of 1897)
Section 3(28)
 As the college is not a local authority within the meaning of Section 3(28) of the General Clauses Act and as it is not performing any function in connection with the affairs of the Republic, the same is not amenable to the writ jurisdiction of the High Court Division under Article 102 of the Constitution. Lalmatia Mohila College is neither a statutory body nor a local authority as per the General Clauses Act. The relationship between Lalmatia Mohila College Authority and the petitioners is that of Master and Servant, to all intents and purposes. The petitioners have no locus standi at all to file the Writ Petitions. Consequentially, on this score alone, the Rules are liable to be discharged. Each petitioner is directed to pay costs of Tk. 5000/- (five thousand) only to the respondent no.1 within 30(thirty) days from date, failing which, the costs shall be realized from her through the process of the Court………..(19,22 and 25 ).

Alauddin Sikder (Md) and another….Vs….Bangladesh and others, 56 DLR (AD) 130; Messrs Malik & Haq and another….Vs…Muhammad Shamsul Islam Chowdhury and two others, 13 DLR (SC) 228; Cholera Research Laboratory, Dhaka….Vs…Md. Mozammel Huq, 25 DLR 260 and Jamal Uddin….Vs….Mir Kashem Bahumukhi High School and others, 56 DLR(HCD) 474. Mofizul Huq….Vs…Mofizur Rahman and others   reported in 49 DLR (AD) 38, Khorshed Alam, Managing Director of Spark Engineering & Construction Ltd…Vs… Ministry of Commerce, Government of the People’s Republic of Bangladesh, Bangladesh Secretariat and others, 47 DLR (HCD) 209; Din Mohammad…..Vs….Government of Bangladesh and others, 14 BLD (AD) 142 and Alauddin Sikder (Md) and another….Vs….Bangladesh and others, 56 DLR (AD) 130, Messrs Malik & Haq and another….Vs…Muhammad Shamsul Islam Chowdhury and two others reported in 13 DLR (SC) 228, Cholera Research Laboratory, Dacca….Vs…Md. Mozammel Huq reported in 25 DLR 260, Jamal Uddin….Vs….Mir Kashem Bahumukhi High School and others reported in 56 DLR (HCD) 474.
 
Dr. Naim Ahmed, Advocate
.....For the petitioner in Writ Petition No.5396 of 2008.
Mr. Md. Emdadul Haque Kazi, Advocate
…..For the petitioner in Writ Petition No. 5564 of 2008.
Mr. Md. Ramzan Ali Sikder with
Mr. Md. Motahar Hossain and
Mr. Muddasir Hossain, Advocates
……For the respondent no.1 in Writ Petition Nos. 5396 of 2008 and 5564 of 2008

Writ Petition No. 5396 and 5564 of 2008
 
Judgment
MOYEENUL ISLAM CHOWDHURY, J:

As the same questions of laws and facts are involved in Writ Petition Nos. 5396 of 2008 and 5564 of 2008, they have been heard together and are disposed of by this consolidated judgment.

2.     In the Writ Petitions, Rules Nisi were issued calling upon the respondent nos. 1-2 to show cause as to why the decision of the respondent no.2 in its 115th meeting dated 29.04.2008 and Memo Nos.  N/3-13370(5-1) and N/3-13371(5-1) both dated 14.05.2008 issued by the respondent no. 1 terminating the petitioners from the posts of Lecturers (ad hoc) in the Departments of History and Psychology of Lalmatia Mohila College, Dhaka should not be declared to be without lawful authority and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.

3.    The case of the petitioners, as set out in the Writ Petitions, in short, is as follows:

            The petitioners are law-abiding citizens of Bangladesh.  They have good academic background. The petitioner of the Writ Petition No. 5396 of 2008, namely, Nazma Parveen was appointed as a Lecturer in the Department of History of Lalmatia Mohila College, Dhaka on ad hoc basis for 6(six) months by Memo No.  Ga/3-8038(7-1) dated 08.04.2004. Subsequently by Memo No. Ga/3-8671(5-1) dated 09.11.2004, her service was extended on ad hoc basis until further orders. The petitioner of the other Writ Petition (Writ Petition No. 5564 of 2008) Roksana Munni was appointed as a part-time Lecturer in the Department of Psychology of the college by Memo No. N/3-10585(5-1) dated 17.11.2005 under certain stipulations. Afterwards she was appointed as a Lecturer in that department on ad hoc basis by Memo No. N/3-11814(5-1) dated 11.01.2007. Anyway, on their appointments, both the petitioners had been discharging their respective duties honestly, sincerely and faithfully.  But none the less, on 29.04.2008 the Governing Body of Lalmatia Mohila College, Dhaka (respondent no.2) in its 115th meeting discussed that as the number of students in the Departments of History and Psychology and some other Departments of the college was very meagre, there was no requirement for retention of any ad hoc teacher therein and accordingly a decision was taken in the said meeting to terminate the petitioners and others by giving 3(three) months’ prior notice to them. Thereafter pursuant to the decision of the Governing Body of the college taken in its 115th meeting, the petitioners were terminated from the service of the college by the impugned Memo Nos. N/3-13370(5-1) and N/3-13371 (5-1) both dated 14.05.2008 to be effective on and from 14.08.2008. The terminations of the petitioners from the service of Lalmatia Mohila College, Dhaka are without lawful authority and of no legal effect.

4.        The respondent no.1 in both the Writ Petitions has contested the Rules by filing Affidavits-in-Opposition. Its case, as set out therein, in brief, runs as follows:

            It is true that the petitioner of the Writ Petition No. 5396 of 2008 Nazma Parveen was appointed as a Lecturer in the Department of History of Lalmatia Mohila College, Dhaka on ad hoc basis. It is also true that the petitioner of the Writ Petition No. 5564 of 2008 Roksana Munni was initially appointed as a part-time Lecturer in the Department of Psychology of the college; but subsequently she was appointed as a Lecturer in the self-same department on ad hoc basis. Both the petitioners were appointed as Lecturers in their respective departments because of political clout and wire-pulling. The provisions relating to recruitment of teachers in the college were thrown to the winds due to backstage manoeuvres. There are no provisions for appointment of any teacher in the college on ad hoc basis within the four corners of the “জাতীয় বিশ্ববিদ্যালয় অধিভুক্ত বেসরকারী কলেজ শিক্ষকদের চাকুরীর শর্তাবলী রেগুলেশন, ১৯৯৪” (hereinafter referred to as the Regulations of 1994). The very appointments of the petitioners as Lecturers on ad hoc basis are illegal. As the number of students in various departments of the college was inadequate and because of financial constraint, the Governing Body of the college in its 115th meeting took a decision to terminate the petitioners and others with 3(three) months prior notice and accordingly by the impugned orders dated 14.05.2008, they were terminated from the service of the college with effect from 14.08.2008. The respondent no.1 did not commit any illegality in terminating the petitioners from the service of the college. Their terminations are terminations simpliciter. From this point of view, no exception can be taken thereto. As such, the Rules are liable to be discharged with costs.

5.     At the outset, Dr. Naim Ahmed, the learned Advocate appearing on behalf of the petitioner of the Writ Petition No. 5396 of 2008, submits that admittedly the petitioner Nazma Parveen  was an ad hoc appointee (Lecturer in the Department of History) vide Annexure-‘A’ dated 08.04.2004; but the provisions of the 2nd  Proviso to Regulation 15 of the Regulations of 1994  were not complied with before her termination and in that view of the matter, her termination from service is clearly without lawful authority and of no legal effect.

6.      Dr. Naim Ahmed, however, concedes that there is no provision for appointment of a teacher on ad hoc basis within the four corners of the Regulations of 1994, though there is a provision for appointment of a part-time teacher within the meaning of Regulation 2(cha).

7.      Dr. Naim Ahmed further concedes that the termination of the petitioner Nazma Parveen from the service of Lalmatia Mohila College, Dhaka is a termination simpliciter.

8.    Mr. Md. Emdadul Haque Kazi, the learned Advocate appearing on behalf of the petitioner Roksana Munni of the Writ Petition No. 5564 of 2008,   submits that initially she was appointed as a part-time Lecturer in the Department of Psychology vide Annexure-‘B’ dated 17.11.2005 and subsequently she was appointed as a Lecturer in that department on ad hoc basis by Annexure-‘D’ dated 11.01.2007 and the termination of the petitioner Roksana Munni on the score of inadequate  number of students in the Department of Psychology and in view of the financial stringency of the college authority can not be sustainable in law particularly when efforts were underway to appoint more teachers in various departments of the college.

9.        Mr. Md. Emdadul Haque Kazi also submits that the impugned order of termination of the petitioner Roksana Munni is bad in law in any view of the matter.

10.      On the other hand, Mr. Md. Ramzan Ali Sikder, the learned Advocate  appearing on behalf of the respondent no.1 in both the Writ Petitions, submits that admittedly the petitioners were appointed on ad hoc basis as Lecturers in the Departments of History and Psychology of Lalmatia Mohila College, Dhaka and their terminations are terminations simpliciter and that being so, Lalmatia Mohila College being a private college is not amenable to the writ jurisdiction of the High Court Division under Article 102 of the Constitution and given this scenario,  the petitioners have no locus standi to file the Writ Petitions.

11.        Mr. Md. Ramzan Ali Sikder further submits that it is an indisputable fact that the Principal of Lalmatia Mohila College is not performing any function in connection with the affairs of the Republic or of any local authority and in this perspective, the petitioners have no standing at all.

12.      Mr. Md. Ramzan Ali Sikder also submits that the petitioners were admittedly appointed on ad hoc basis and they were never included in the Monthly Pay Order (MPO) and their relationship with the college authority was that of master and servant and this being the panorama, the master can not be forced to retain service of the servant and the remedy of the petitioners, if any, lies in a suit for damages in the competent Civil Court.

13.      Mr. Md. Ramzan Ali Sikder next submits that there was a flagrant contravention of the provisions of Regulation 5 of the Regulations of 1994 in the matter of appointment of the petitioners and as there is no provision whatsoever for their appointments on ad hoc basis, they were rightly terminated from the service of Lalmatia Mohila College under Section 16 of the General Clauses Act.

14.        In support of the above submissions, Mr. Md. Ramzan Ali Sikder has drawn our attention to the decisions in the cases of Khorshed Alam, Managing Director of Spark Engineering & Construction Ltd…Vs… Ministry of Commerce, Government of the People’s Republic of Bangladesh, Bangladesh Secretariat and others, 47 DLR (HCD) 209; Din Mohammad…..Vs….Government of Bangladesh and others, 14 BLD (AD) 142; Alauddin Sikder (Md) and another….Vs….Bangladesh and others, 56 DLR (AD) 130; Messrs Malik & Haq and another….Vs…Muhammad Shamsul Islam Chowdhury and two others, 13 DLR (SC) 228; Cholera Research Laboratory, Dhaka….Vs…Md. Mozammel Huq, 25 DLR 260 and Jamal Uddin….Vs….Mir Kashem Bahumukhi High School and others, 56 DLR(HCD) 474.

15.         We have heard the submissions of Dr. Naim Ahmed and Mr. Md. Emdadul Haque Kazi and the counter-submissions of Mr. Md. Ramzan Ali Sikder, perused the Writ Petitions, Affidavits-in-Opposition and relevant Annexures annexed thereto.

16.       It is admitted that the petitioner of the Writ Petition No. 5396 of 2008 Nazma Parveen was initially appointed as a Lecturer in the Department of History of Lalmatia Mohila College for 6(six) months on ad hoc basis vide Annexure-‘A’ dated 08.04.2004. It is further admitted that subsequently by Memo No. Ga/3-8671(5-1) dated 09.11.2004, her service was extended on ad hoc basis until further orders. Again, it is undisputed that the petitioner of the Writ Petition No. 5564 of 2008 Roksana Munni was initially appointed as a part-time Lecturer in the Department of Psychology on 17.11.2005. Undeniably, she was appointed on ad hoc basis as a Lecturer in the self-same department by Memo No. N/3-11814(5-1) dated 11.01.2007. However, by the impugned orders dated 14.05.2008, the petitioners were terminated from the service of the college. The orders of termination are under challenge in the Writ Petitions.

17.        The moot question before us is whether the petitioners have any locus standi to file the Writ Petitions. It goes without saying that Lalmatia Mohila College is a non-Government (private) college. There is no gainsaying the fact that the Principal of this private college is not performing any function in connection with the affairs of the Republic or of a local authority.

18.          In this regard, a reference may be made to the definition of ‘Local Authority’ as given in Section 3(28) of the General Clauses Act of 1897. Section 3(28) of the Act is reproduced below:

“Local  Authority-‘Local authority’ shall mean and include a Paurashava, Zilla Board, Union Panchayat, 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.”
 
19.         Having regard to the definition of ‘Local Authority’ in the General Clauses Act (quoted above), a non-Government college  can not be held to be a local authority inasmuch as it has not been  constituted  or established by  the Government  under any law. Both Dr. Naim Ahmed and Mr. Md. Emdadul Haque Kazi candidly concede that Lalmatia Mohila College being a private college is not a local authority within the meaning of Section 3(28) of the General Clauses Act.  It is a truism that the Principal of Lalmatia Mohila College is not performing any function in connection with the affairs of the Republic. As the college is not a local authority within the meaning of Section 3(28) of the General Clauses Act and as it is not performing any function in connection with the affairs of the Republic, the same is not amenable to the writ jurisdiction of the High Court Division under Article 102 of the Constitution. On this point, our view is buttressed up by the decision in the case of Mofizul Huq….Vs…Mofizur Rahman and others   reported in 49 DLR (AD) 38. In that decision, our Appellate Division has clearly, categorically and unambiguously held that a recognized non-Government school is neither a statutory body nor a local authority within the meaning of the General Clauses Act. So obviously Lalmatia Mohila College is neither a statutory body nor a local authority as per the General Clauses Act.

20.           The decisions in the cases of Khorshed Alam, Managing Director of Spark Engineering & Construction Ltd…Vs… Ministry of Commerce, Government of the People’s Republic of Bangladesh, Bangladesh Secretariat and others, 47 DLR (HCD) 209; Din Mohammad…..Vs….Government of Bangladesh and others, 14 BLD (AD) 142 and Alauddin Sikder (Md) and another….Vs….Bangladesh and others, 56 DLR (AD) 130 relied on by Mr. Md. Ramzan Ali Sikder are not exactly on the point we are dealing with.

21.    In the decision in the case of Messrs Malik & Haq and another….Vs…Muhammad Shamsul Islam Chowdhury and two others reported in 13 DLR (SC) 228 referred to by Mr. Md. Ramzan Ali Sikder, it has been held that the master can not be forced to retain the service of a servant against his will, but he may be liable to pay damages, if any, to the servant for breach of contract.

22.   In the decision in the case Cholera Research Laboratory, Dacca….Vs…Md. Mozammel Huq reported in 25 DLR 260 adverted to by Mr. Md. Ramzan Ali Sikder, it has been held in paragraph 12.

“12. From the above mentioned decisions, it appears that the law relating to a dismissed employee other than Government Servant is now settled. Such a case is covered by the law of Master and Servant. In the case reported in 21 DLR (SC), page 365, a dismissed employee of Eastern Mercantile Bank Ltd. instituted a suit for declaration that the order terminating his service was null and void. In that case, the plaintiff complained of violation of the regulations of the Bank in terminating his service. The learned Judges of the Supreme Court referred to the earlier decision of the Court reported in 13 DLR (SC) page 228 and reiterated the view taken therein. It has been held that since the respondent’s services were not regulated by any legal instrument, it could not be said that the declaration asked for by him was in relation to any legal character. It was held that such a suit not being in relation to any legal character is not maintainable under Section 42 of the Specific Relief Act. It was further held that in such cases, the law of Master and Servant is applicable and the remedy of an aggrieved person lies in a suit for damages only. On careful examination of the said decision, it appears that the present case is fully covered by the decision.”

23.     In the case of Jamal Uddin….Vs….Mir Kashem Bahumukhi High School and others reported in 56 DLR (HCD) 474, it has been held that when the service of the petitioner is governed by the rules of Master and Servant, the Master can not be forced to accept the service of the Servant.

24.       As already observed, the petitioners were appointed on ad hoc basis in the Departments of History and Psychology of Lalmatia Mohila College, Dhaka. Admittedly there are no provisions whatsoever for appointment of the petitioners on ad hoc basis within the four corners of the Regulations of 1994. This being the picture, their service is not regulated by any legal instrument. In such a posture of things, it leaves no room for doubt that the relationship between Lalmatia Mohila College Authority and the petitioners is that of Master and Servant, to all intents and purposes.

25.   From the foregoing discussions and in view of the facts and circumstances of the case, we have no hesitation in holding that the petitioners have no locus standi at all to file the Writ Petitions. Consequentially, on this score alone, the Rules are liable to be discharged.

 26.      As we have found that the petitioners have no standing, we refrain from making any observation as to the merit of the case.

27.      Regard being had to the facts and circumstances of the case, it transpires that the petitioners filed the instant Writ Petitions knowing full well that they had no locus standi to do so. As we see it, they should be saddled with some costs in that Lalmatia Mohila College Authority had to contest the Rules out of the coffers of the college. Furthermore, the awarding of costs will serve as a deterrent to others so that they will feel disinclined to come up with frivolous and vexatious Writ Petitions in future. 

 28.      Accordingly, the Rules are discharged on the ground of incompetency of the Writ Petitions. Each petitioner is directed to pay costs of Tk. 5000/- (five thousand) only to the respondent no.1 within 30(thirty) days from date, failing which, the costs shall be realized from her through the process of the Court.

Ed.