Sheela Kamal Vs Bangladesh and others 2016 (2) LNJ 246

Case No: Writ Petition No. 726 of 2013

Judge: Mohammad Ullah,

Court: High Court Division,,

Advocate: Mr. T.H. Khan,Mr. Sashanka Shekhar Sarker,Mr. A.K.M Jaglul Haider,,

Citation: 2016 (2) LNJ 246

Case Year: 2016

Appellant: Sheela Kamal

Respondent: Bangladesh and others

Subject: Writ Petition,

Delivery Date: 2015-12-14

Sheela Kamal Vs Bangladesh and others 2016 (2) LNJ 246
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Shamim Hasnain, J
And
Mohammad Ullah, J
Judgment on
14.12.2015
  Sheela Kamal, wife of late A. F. M. Kamal Uddin of Vilage-West Shiyaldi, Post Office-Ichhapura, Upazila-Sirajdikhan, District-Munshiganj.
. . . Petitioner
- Versus -
The Secretary, Ministry of Education, Bangladesh Secretariat, Ramna, Dhaka-1000 and others
... Respondents.

Governing Body and Managing Committee of Non-Government Educational Institution at the Intermediate and Secondary Level, Regulations, 2009
Regulations 7, 8, 9, 29 (3), 33 and 38
The formation of an ad hoc committee on the basis of such an unilateral inquiry report instead of according approval of the Managing Committee appears to have been taken illegally and the same is a glaring instance of the violation of the principles of natural justice. The learned Deputy Attorney General failed to show us the authority or the basis of the inquiry held by the 2(two) member Inquiry Committee without informing the petitioner or any of the members. It is further necessary to mention that nowhere in the decision of the Board the question of violation of the Regulations or any irregularity with regard to the process of election of the Managing Committee has been raised. Thus it appears that the decision of the Board in not giving approval of the lawful elected Committee of the educational institution was malafide which had been made arbitrarily and for a collateral purpose. We find serious irregularity committed by the respondent no. 3 and, therefore, we consider it prudent to issue an appropriate direction upon the respondents to give approval of the Managing Committee sent on 28.08.2012 by the respondent no. 5, the headmaster of the school. It is to be noted here that there is a provision in regulation 9 that the tenure of the Managing Committee of an educational institution would be of two years from the date of its first meeting to be held under the provisions of regulation 33 of the Regulations. Therefore, the tenure of the Managing Committee of the school would be 2(two) years from the date of its first meeting to be held after necessary permission of the Board is accorded and the names of the members thereof are published in the official notification.

Mr. T. H. Khan, Senior Counsel with
Mr. A.K.M. Jaglul Haider Afric, Advocate
....For the petitioner.
Mr. Sashanka Shekhor Sarkar, D.A.G
...For the respondent no. 3.
 
JUDGMENT
Mohammad Ullah, J: 
          On an application under Article 102 of the Constitution, the Rule Nisi was issued calling upon the respondents no. 1-5 to show cause as to why the impugned Memo No. 622/ Munshi/1488   dated 06.01.2013 (as contained in Annexure-‘A’ to the Writ Petition) approving an ad hoc Committee instead of the elected Managing Committee, elected in 2012, 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.     
  1. At the time of issuance of the Rule this Court vide order dated 29.01.2013 stayed the operation of the impugned order dated 06.01.2013.
  2. The short facts, for disposal of the Rule as found in the averments of the Writ Petition, are as follows:
          Ichhapura High School, a non-government educational institution was established in 1892. The affairs of the school is run by a Managing Committee whose  tenure is 2(two) years as contemplated in the Board of Secondary and Higher Secondary Education, Dhaka (Governing Body and Managing Committee of non-Government Educational Institution at the Intermediate and Secondary level) Regulations, 2009 (hereinafter referred to as “the Regulations”). The Regulations have been framed under the provisions of section 39 of the Intermediate and Secondary Education Ordinance, 1961 (E.P. Ordinance No. XXXIII of 1961). Prior to the expiry of the tenure of the previous managing committee, the respondent no. 5 being the headmaster of the school initiated the process for holding an election of the managing committee in June, 2012. The proforma respondent no. 6 being the Presiding and Upazilla Education Officer published the election schedule on 19.06.2012 fixing 13.08.2012 as the date for holding election. In terms of the schedule, the election took place on the stipulated date in accordance with the Regulations without any objection from any quarter. The same day the respondent no. 6 declared and published the unofficial result of the said election declaring a 9(nine) member committee (“the Managing Committee”) in which the petitioner had been elected as a member from the category of reserved family guardians. The respondent no. 5, the headmaster of the school was also inducted as a member of the Managing Committee by dint of his position. Thus the total number of members of the Managing Committee stood at 10(ten). The official election result was subsequently published by the proforma respondent no. 6 on 28.08.2012. It is stated in the petition that the election was held in a transparent manner and that at no point of time no one raised any objection about the process of holding the election and result thereof. Pursuant to the declaration of the unofficial result dated 13.08.2012, the respondent no. 5 on 23.08.2012 issued letters to the members of the newly elected Managing Committee notifying them that the meeting of the newly formed Committee would be held on 28.08.2012 with a view to electing the Chairman thereof. Accordingly, on 28.12.2012, a meeting was held in presence of 7(seven) members out of 10(ten) which included the petitioner. In the meeting the Chairman and the co-opted member (person interested in education) were being elected by the members of the said meeting presided over by Mr. Shawkat Hossain (Shamim). The meeting elected Mr. Abul Hossain Howlader as the Chairman of the Managing Committee considering his remarkable performance as Chairman of the immediate past Managing Committee of the school. Mr. M. M. Tofazzal Hossain was elected as a person interested in education as the co-opted member of the Managing Committee. On the same day, i.e., on 28.08.2012, the headmaster (respondent no. 5) of the school issued a letter to the respondent no. 3, Inspector of schools informing that the election of the Managing Committee was duly held on 13.08.2012 and the election of the Chairman along with the co-opted member of the Managing Committee was also held on 28.08.2012. This information was sent by the respondent no. 5 in compliance with the provisions of regulation 29(3) of the Regulations for according necessary approval of the Board.  It is stated that the local Member of Parliament started to motivate and influence the elected members to withdraw their support for the elected Chairman of the Managing Committee. But the elected committee members declined to respond to such influence. The local Member of Parliament (M.P.) directed the headmaster of the school to issue a notice directing Mr. Abdur Razzaque one of the Member of the Managing Committee to meet with the M.P. In subordination to the said direction the headmaster wrote a letter to that effect. A copy of the said letter dated 27.09.2012 has been annexed to the Writ Petition as Annexure ‘H’. While the members of the Managing Committee were waiting for approval of the Board, all on a sudden, the respondent no. 5 came to know from the memo dated 20.12.2012 issued under the signature of the respondent no. 3, Inspector of schools about disapproval of the elected Managing Committee. Thereafter on 06.01.2013 another memo was issued under the signature of the respondent no. 3 forming an ad hoc committee for dealing with the affairs of the school. It has been further alleged that neither the Memo dated 20.12.2012 nor 06.01.2013 had been communicated to any of the members of the Managing Committee through official process. However, the respondent no. 5 unofficially received a copy of the memo dated 06.01.2013 delivered to him by an unknown person. Challenging the aforesaid decision of the respondent no. 3, the Inspector of schools, the petitioner being one of members of the newly elected Managing Committee approached this Court and obtained the Rule and the order of stay as stated above.
  1. At the outset, Mr. T.H. Khan, learned Senior Counsel appearing with  Mr. A. K.M. Jaglul Haider Afric, learned Advocate for the petitioner, submits that the petitioner was duly elected as a member of the Managing Committee in accordance with the Regulations and when no allegation of any irregularities were raised from any quarter with regard to the process of election, the  formation of  an ad hoc committee without approval of the  elected committee was wholly illegal, malafide and  the same had been done at the behest of the local Member of Parliament and, therefore, the impugned order should be declared to be illegal and without lawful authority. Mr. Khan drawing our attention to the report of the inquiry committee dated 28.11.2012 submits that on the basis of a decision of the inquiry committee, approval of the elected Managing Committee had not been given by the Board without giving any opportunity of being heard to any of the members of the committee and as such the principles of natural justice had been violated in the instant case. The learned Counsel questions the basis and rationale of the inquiry which took place behind the back of the petitioner as well as the other members of the newly elected Managing Committee. The learned Counsel lastly submits that after the election of the Managing Committee and the Chairman thereof, there is a procedure under the Regulations to send the result along with the minutes of the meeting to the Board for its approval and the Board has no option but to approve the committee as its routine work.
  2. Per contra, Mr. Sashanka Shekhar Sarkar, learned Deputy Attorney General appearing for the respondent no. 3, submits that the Inspector of schools found that after the election within the stipulated period the list of the elected committee had not been sent to the Board for its approval and on the allegation of some irregularities an inquiry was held wherein it has been revealed that the meeting for electing the Chairman of the Managing Committee was held under duress  and as such the Board rightly declined to approve the Managing Committee.
  3. We have heard the submissions of the learned Advocate for the petitioner and the learned Deputy Attorney General for the respondent no. 3 and perused the writ petition, the affidavit-in-opposition and the affidavit-in-reply including the annexures thereto.
  4. It appears that an election schedule was declared on 19.06.2012 fixing the date for filing of the nomination paper by 21-23.07.2012. The date for scrutiny of the nomination paper was fixed for 24.07.2012 and thereafter, the 25th and 26th July, 2012 was fixed for preferring an appeal in case of disapproval of the nomination paper. The date for withdrawal of the candidature from the election was fixed for 29.07.2012. The final list of the candidates was published on 30.07.2012. The election was duly held on 13.08.2012 and on the basis of the unofficial result, a notice for holding a meeting was issued on 23.08.2012 pursuant to which a meeting comprising of the elected members was held on 28.08.2012 with the agenda for electing the Chairman of the Managing Committee. At the said meeting Mr. Abul Hossain Howlader who was the Chairman of the previous Committee was unanimously elected as the Chairman of the new Managing Committee. Thereafter the headmaster of the school sent the list of the Committee along with their particulars to the respondent no. 3, the Inspector of schools for approval of and for publication of the same in the official notification. While the elected Managing Committee including the petitioner was awaiting approval for the proposal, they came to know of the disapproval of the Committee issued by the respondent no. 3 by a Memo dated 20.12.2012. Thereafter another Memo dated 06.01.2013 was issued by the respondent no. 3 forming an ad hoc committee to run the affairs of the school.
  5. In considering the legality of the impugned decision taken by the respondent no. 3, we have perused and considered the scheme of the Regulations. The relevant provisions of the Regulations are briefly discussed below:
          Regulation 7 provides for procedure of formation of a Managing Committee and regulation 8 prescribes the procedure for electing the President of the Managing Committee of an Educational Institution. Regulation 9 provides for the tenure of the Managing Committee which would be of two years from the date of its first meeting to be held under the provisions of regulation 33. Regulation 26 provides for the procedure of publication of the result of the election of the Managing Committee. Regulation 29(3) relates to, among others, the approval of the Managing Committee of an Educational Institution by the Board. According to the provisions of regulation 29(3) of the Regulations a copy of the election result along with the resolution of a meeting by electing the President of the Managing Committee is required to be sent to the Board for according its approval and the Board in its turn shall publish a notification approving the Managing Committee. Regulation 38 empowers the Board to dissolve the Governing Body or Managing Committee as the case may be on the grounds of inefficiency, mismanagement and financial irregularities etc. Sub-regulation (2) stipulates issuance of a notice giving the members of the Committee an opportunity of being heard prior to a decision of dissolution of such Managing Committee. The Board or the Government is, under no circumstances, empowered to issue any directive to dissolve a proposed Managing Committee formed through a transparent, free and fair election process or to form an ad hoc committee to function as the Managing Committee in place of the elected one. Thus in refusing to give approval of the Managing Committee and the formation of an ad hoc committee the respondent no. 3 has clearly exceeded his authority inasmuch as he has not been empowered to do so under the Regulations. When a list of members of a newly elected Managing Committee along with a resolution of a meeting of such committee selecting or electing a Chairman has been sent to the Board for its approval under the provisions of regulation 29(3) the Board can not but approve the said Committee as a matter of routine. There is no doubt that a Managing Committee can be dissolved upon certain allegations with prior show cause notice in compliance of the provisions of regulation 38.
  1. In the instant case, however, when the proposal dated 28.08.2012 was sent to the Board for its approval, after the election of the Managing Committee and the Chairman thereof, the Board kept silent inexplicably for a long period of four months; the petitioner came to know about the decision of disapproval of the Board on 28.12.2012. Our attention has been drawn to an inquiry report dated 28.11.2012, on the basis of which the Board took the decision of disapproval of the Managing Committee. The Inquiry Committee is stated to have found irregularities in sending the names of the newly elected committee to the Board. But we do not find the existence of or any basis for exercise of authority for conducting the inquiry in the first place. The finding that the newly formed Managing Committee and the Chairman thereof were elected under duress was made in the absence of the petitioner or the other elected members. Infact no notice was served upon any of them as to conduct of such inquiry. Therefore, the formation of an ad hoc committee on the basis of such an unilateral inquiry report instead of according approval of the Managing Committee appears to have been taken illegally and the same is a glaring instance of the violation of the principles of natural justice. On our query, the learned Deputy Attorney General failed to show us the authority or the basis of the inquiry held by the 2(two) member Inquiry Committee without informing the petitioner or any of the members. It is further necessary to mention that nowhere in the decision of the Board the question of violation of the Regulations or any irregularity with regard to the process of election of the Managing Committee has been raised. Thus it appears that the decision of the Board in not giving approval of the lawful elected Committee of the educational institution was malafide which had been made arbitrarily and for a collateral purpose. We find serious irregularity committed by the respondent no. 3 and, therefore, we consider it prudent to issue an appropriate direction upon the respondents to give approval of the Managing Committee sent on 28.08.2012 by the respondent no. 5, the headmaster of the school. It is to be noted here that there is a provision in regulation 9 that the tenure of the Managing Committee of an educational institution would be of two years from the date of its first meeting to be held under the provisions of regulation 33 of the Regulations. Therefore, the tenure of the Managing Committee of the school would be 2(two) years from the date of its first meeting to be held after necessary permission of the Board is accorded and the names of the members thereof are published in the official notification.
  2. Having considered the materials on record and in the facts and circumstances of the case, we find substance in the Rule. The Rule, therefore, succeeds.
  3. In the result, the Rule is made absolute.
  4. Both the decisions of the respondent no. 3 dated 06.01.2013 and 20.12.2012 (as contained in Annexures- ‘A and A-1’) forming an ad hoc committee and refusing to give approval of the Managing Committee are hereby declared to have been done without lawful authority and of no legal effect.
  5. The respondent no. 3, the Inspector of Schools is directed to issue formal approval of the Managing Committee and publish the same in the official notification within 15(fifteen) days from the date of receipt of a copy of this judgment.
         Let a copy of this judgment and order be sent to all of the respondents for compliance.
Ed.
 

Writ Petition No. 726 of 2013