Secretary, Ministry of Education and others Vs. Mowlana Wahiduzzaman and another, VI ADC (2009) 1016

Case No: Civil Appeal No. 172 of 2002

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. Nurul Amin,Nahida Yeasmin,,

Citation: VI ADC (2009) 1016

Case Year: 2009

Appellant: Secretary, Ministry of Education and others

Respondent: Mowlana Wahiduzzaman

Subject: Writ Jurisdiction,

Delivery Date: 2009-8-18

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim J
Md. Joynul Abedin J
ABM Khairul Haque J
 
Secretary, Ministry of Education and others
…………………Appellants
Vs.
Mowlana Wahiduzzaman and another
……………. ....Respondents
 
Judgment
August 18, 2009.
 
The Madrasa Education Ordinance, 1978
Section 17 (2) (b)
Cancellation of the recognition is a cancellation of affiliation of the said Madrasa and it is not only violative of section 17 (2) (b) of the Madrasa Education Ordinance, 1978 but also violative of the scheme of the said Ordinance as reflected in section 3 (1) thereof which authorizes the Bangladesh Madrasa Education Board only to regulate, control, supervise, develop and improve the Madrasa education to the exclusion of the Ministry of Education and as such the other impugned in the writ petition is without lawful authority. ….. (8)
 
Lawyers Involved:
Mrs. Nahid Yesmin, Deputy Attorney General, instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Appellants.
Md. Nurul Amin, Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record-For Respondent No. 1.
Not Represented-For Respondent No. 2.  
 
Civil Appeal No. 172 of 2002
(From the judgment and order dated 19.4.2000 passed by the High Court Division in Civil Revision No.3623 of 1999.)
 
JUDGMENT
 
Md. Joynul Abedin J.
 
1. This appeal by leave is directed against the judgment and order dated 19.4.2000 passed by a Division Bench of the High Court Division in Writ Petition No. 3623 of 1999 making the rule absolute.                        
 
2. The writ petitioner respondents filed the aforesaid writ petition challenging the letter issued by the Senior Assistant Secretary, Section-16, Ministry of Education vide Memo No. SHANG-SHEEM/3HA:16/Miscellaneous2/98/516 (4) dated 7.6.1999 canceling the recognition of Noabenki Biralaksmi Kaderia Alim Madrasa and stoppage of payment of salary of its teachers and employees under Monthly Pay Order (M.P.O.) scheme on the averments that the said Madrasa was established on 1.1.1968 and it was given provisional recognition on 7.10.1977 and since then it was regularly renewed. The said Madrasa has a duly approved Managing Committee and its teachers including its Principal are all qualified and they have been enjoying the facility under the system of monthly Payment Order (M.P.O.). As a result 80% of the salary of the teachers and employees are paid by and received from the Government. At present the Madrasa has in total 298 students in Dakhil and Alim classes and 217 students in different Ebtedai Classes (from class I of V). The total number of students of the Madrasa now 515. It has a good Library and there is no other Madrasa within 17 Km radius of the Madrasa. There are at present 18 teachers and 4 employees. The Madrasa fulfilled al required conditions for its recognition and for the purpose of M.P.O. and its affairs are being managed by a Managing Committee duly approved by the Government and the Madrasa Education Board and the accounts of the Madrasa are also being regularly audited. Suddenly the writ respondent No.2 issued the impugned order vide the aforesaid Memo. Dated 7.6.1999 with reference to a purported inspection report of an inspec­tion team although the said Madrasa ful­filled all required conditions. Further the writ respondent No.2 had no competence in law to cancel the recognition and to stop payment under M.P.O. scheme.
 
3. The writ respondent No.2 only contest­ed the rule by filing affidavit-in-opposition supporting the impugned order stating that the Government being in overall con­trol of the education system in the country it could also take the impugned action in addition to Madrasa Education Board.
 
4. A Division Bench of the High Court Division after hearing made the rule absolute by the impugned judgment dated 19.4.2000 mainly on the ground that "Though the report is an adverse one, but the inspection team ultimately recom­mended for continuing the money pay­ment order. Under section 17(b) of the Madrasa Education ordinance, it is the Madrasa Education Board who can either accept or reject the said recommendation of the inspection team in respect of the affiliation of a Madrasa, but the respon­dent No.2 has got no such power and he can only act on the said recommendation in respect of money payment order only" and consequently declared the impugned order without lawful authority.
 
5. Leave was granted to consider the submissions that the impugned order having been passed by the Government canceling recognition and withdrawing Monthly Payment Order (M.P.O) provided by the Government, the High Court Division erred in construing the same as an order under Section 17(2) (b) of the Madrasha Education Ordinance, 1978 which deals with affiliating and thereupon wrongly declaring the impugned order to be without lawful authority.
 
6. We have heard Mrs. Nahid Yesmin, the learned Deputy Attorney General for the appellants and Mr. Md. Nurul Amin, the learned Advocate for the respondents and perused the impugned judgment of the High Court Division and order connected papers.
 
7. The learned Deputy Attorney General for the appellants argues that the High Court Division has erred in failing to appreciate and consider that the Government in the Ministry of Education being in overall control, maintenance and supervision of the Madrasa education it was competent to pass the impugned order in the interest of maintaining a reasonable standard of education imparted in the Madrasa. Consequently there has been a failure of justice.
 
8. Mr. Md. Nurul Amin, the learned Advocate for the respondents argues that the cancellation of the recognition is a cancellation of affiliation of the said Madrasa and it is not only violative of sec­tion 17(2) (b) of the Madrasa Education Ordinance. 1978 but also violative of the scheme of the said Ordinance as reflected in section 3(1) thereof which authorizes the Bangladesh Madrasa Education Board only to regulate, control, supervise, devel­op and improve the Madrasha education to the exclusion of the Ministry of Education and as such the order impugned in the writ petition is without lawful authority. He further submits that the order withdrawing the monthly pay order of the said Madrasa is illegal, arbitrary and whimsical inas­much as the inspection report which was relied on while passing such order did not even recommend for such withdrawal of the Monthly Pay Order, rather it recom­mended for its continuation.
 
9. Careful examination of the relevant law and the fact obtaining in the case shows that the Ministry of Education acted con­trary to law and against the principles of natural justice  inasmuch as the order impugned in the writ petition canceling the recognition of the Madrasa not only contravenes section 3(1) and 17 (2) (b) of the Madrasa Education Ordinance, 1978 but also offends the principle of natural justice in canceling the recognition of the Madrasa as no prior notice was issued calling  upon  the  concerned  Madrasa authority to explain their position. We therefore find the impugned judgment to have been passed in accordance with law.
 
The appeal is accordingly dismissed without any order as to costs.
 
Ed.