(Special Original Jurisdiction)
Md Moinul Islam Chowdhury J
JBM Hassan J
Anowara Chowdhury and others………..Petitioners
vs
Bangladesh and others ………..Respondents
Judgment
March 11th, 2014
Teachers and Non-Teaching Staff of Nationalized Colleges Absorption Rules, 2000
Rule (Q)
Relaxation is not without any specific terms and conditions because the petitioners have to qualify as per the requirement of the BCS Cadre Service within 3 years from the date of absorption as the lecturers, otherwise, the petitioners would certainly loose the benefits of the Provision of the order. This condition requires the petitioners to cure their academic qualification within a stipulated period of time in order to get the provision of relax facilities to continue as lecturers in the College.
The petitioners came before this court only for absorption as lecturers on condition to obtain first class MA/MSc within 3 years. In this regard we consider that academic back ground is most important to set standard equivalent to a BCS Cadre but at the same time the respondents should not ignore the teaching experience of a teacher for a long period of time. In the instant case the petitioners have been serving as lecturers between the period of 15 years to 30 years but it became an unfortunate for them as soon as the college has been nationalized. It can be placed for argument sake that as to why they could not have the required academic qualification for absorbing in the service, even though, they were receiving the government salaries and other benefits as being listed in the MPO for such a long period of time. We consider that the order passed by the Deputy Secretary of Ministry of Public Administration for relaxing the required academic requirements in cases of the teaching staffs who could not qualify under the BCS requirement to be appointed as lecturers or teachers. .. …. (16)
Md Shafique Ahmed with ARM Walilur Rahman Khan, Advocates – For the Petitioners.
Goutam Kumar Roy DAG with Md Eunus Ali, AAG-For the Respondents.
Judgment
Md Moinul Islam Chowdhury J : At the instance of the writ petitioners, Anowara Chowdhury and others, this Rule has been issued calling upon the respondents to show cause as to why inaction of the respondents in absorbing the service of the petitioners as the lecturers of the Sarkari Bir Sherestha Abdur Rouf Degree College going to be absorbed vide Circular No. 05.00.0000.155.15.028.09428 dated 12-8-2012 (Annexure-D) signed by the Deputy Secretary, Ministry of Establishment (Respondent No.4) taking linent view in respect of their educational qualifications being not obtained 1st Class in Masters Degree and covered by the rule 2(Q)(A) of the Teachers and Non-Teaching Staffs of Nationalized Colleges Absorption Rules, 2000 (Annexure-E) and accepting the decision of considering 2nd Class in Masters Degree by way of inserting sub-rule 4 and 5 of the rule 9 of the said Rules, 2000 as proposed in the meeting of the Ministry of establishment held on 18-2-2011 (Annexure-F) shall not be declared to have been done without lawful authority and of no legal effect and such not binding upon the petitioners and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The relevant facts for disposal of this Rule, inter alia, are that originally a College was established by the name of Kamarkhali College in the year of 1970 under PS Kamarkhali District-Faridpur which was subsequently renamed as Bir Sherestha Abdur Rouf Degree College in the year of 1989. The said College was listed as a Nationalized College on 22-12-2011 and it was enlisted and named as Sarkari Bir Sherestha Abdur Rouf Degree College (“the College”). The petitioners have been serving in this College in the following manners:-
(1) The petitioner No.1 Anowara Chowdhury got B.Ed. Degree in Second Class in the year of 1989 and obtained Second Class in MA in the year of 1980 from the Dhaka University and was appointed and joined on 15-2-1988 as a lecturer of Islamic History.
(2) The petitioner No.2 Kumud Biswas got BSc and MSc Degree in Biology (Second Classes) and he was appointed and joined in the College on 24-11-1980.
(3) The petitioner No.3, Premendranath Shaha, got BS and MA Degrees from the Dhaka University and was appointed as a lecturer and joined in the College on 26-9-1984.
(4) The petitioner No.4, Amalendra Paul, got B Com (Hons) and MA in the year of 1983 and joined in the College on 12-8-1989.
(5) The petitioner No.5, Kazi Murad Hossain, got BA (Hons) in English and MA from Rajshahi University who was appointed as a lecturer on English and joined on 12-3-1995, and
(6) finally the petitioner No.6, Kazi Aminul Islam, got BA (Hons) in English and MA from Jahangir Nagar University and was appointed as a lecturer of English and joined on 20-9-1997.
3. All of the petitioners got 2nd Class in’ the Masters Degree. Since their appointment petitioner No.1 had been serving as Principal-in-Charge of the College and the petitioner Nos. 2 and 3 have been serving as the Assistant Professors and the petitioner Nos. 5 and 6 have been serving as lecturers and were enlisted in the Monthly Pay Order (MPO) for obtaining Government Portion of salaries and other benefits.
4. Before nationalization of the College by the Government the petitioners were enlisted and qualified as lecturers to be listed in MPO. The respondent No.4 the Deputy Secretary, Ministry of Establishment by a Circular bearing Memo No. 05.00.000.155.15.028.09428 dated 12-8-2012 created total 27 posts for the College but the respondents out of 27 posts created posts for only 19 lecturers to be absorbed and the present 6 (six) petitioners were not absorbed on the ground of lack of academic qualification as required by the rule (Q) of the ????????????? ???? ?????? ? ?-?????? ???????? ???????? ????????, 2000| Being aggrieved by the inaction of the respondents for a long period of time the petitioners filed this writ petition and obtained the present Rule.
5. Mr Md Shafique Ahmed, the learned Advocate, appearing along with the learned Advocate Mr ABM Walilur Rahman Khan, for the petitioner submits that the Circular dated 18-12-2011 (Annexure- D) was issued for the absorption of 27 lecturers for the Sarkari Bir Sherestha Abdur Rauf Degree College which categorically states-in “condition 4” that if any teacher has no required qualification for the absorption in the nationalized college he would get opportunity to earn the eligibility within 3 (three) years from the date of absorption, as such, the petitioners should have given the opportunities of absorbing themselves as the lecturer on ad-hoc basic in the said nationalized college at least for 3(three) years but the respondents are not taking any appropriate step in the petitioners’ matter for a long period of time which is vocative to the petitioners’ fundamental right guaranteed under the Constitution of Bangladesh.
6. The learned senior Counsel further submits that the petitioners have been rendering services to the College for more than 15 years to 33 years and by this long period of time they have gathered sufficient knowledge and they have been equipped with vast experience in teaching but if at this stage of their lives they are not given the opportunity of absorption they will be highly prejudiced, because in one hand, they will not get any chance of absorbing themselves in any other place and, on the other hand, the students will also be deprived of their learning from their experienced teachers, as such, if any decision is taken by the respondents in not absorbing the service of the petitioners it would be liable to be declared to have done without any lawful authority.
7. The learned senior Counsel further submits that the petitioners have been serving the College as lecturers and the students of the Colleges have been getting benefits of their teaching experience but the respondents by inaction ignored the petitioners experience by not absorbing them in the College as lecturers on the ground of academic background but the petitioners are prepared to cure their academic qualification for absorption in the service within the stipulated 3 years time, in failure they will be disqualified, thus, inaction has infringed the fundamental right of the petitioner, as such, the Rule should be made absolute.
8. The Rule has been opposed by the respondent Nos. 2 and 4, the Joint Secretary (Rule), Ministry of Public Administration and the Deputy Secretary, Ministry of Public Administration (previously known as Ministry of Establishment) by filing an affidavit-in-opposition and also a supplementary affidavit-in-opposition contending, inter alia, that admittedly the College was nationalized by the government and admittedly the petitioners were in service before nationalization of the College but under the provision of rule ((Q) of the ????????????? ???? ?????? ? ?-?????? ???????? ???????? ???????? 2000| the petitioners could not qualify to be absorbed as no decision has yet been taken by the government to relax or to deviate from the provision under the said rule. It is also contended that, the Ministry of Education without taking cognizance about the opinion given by the Ministry of Public Administration, therefore, the Bangladesh Public Service Commission by its letter vide Memo No. 425 dated 19-10-2011 requested the Ministry of Education to make void of the said amendment vide SRO No. 320 law /2001, and also requested to make a new amendment on the basis of the opinion given by BPSC.
9. Mr Goutam Kumar Roy, the learned Deputy Attorney-General appearing with the learned Assistant Attorney General Md Eunus Ali, for the respondent Nos. 2 and 4 submits that the petitioners filed this writ petition against the inaction of the respondents but the petitioners were not qualified under the provision of the Rule, 2000 as they do not hold first class in the Masters Degree which is the first requirement to be absorbed, as such, this Rule is not sustainable under law and the Rule is liable to be discharged. The learned Deputy Attorney General also submits that the writ petition is not maintainable in its present form because of the petitioners’ grievances are connected with the terms and conditions of the service which is exclusively within the jurisdiction of the Administrative Tribunal constituted under Article 117 of the Constitution of Bangladesh, as such the Rule is liable to be discharged.
10. After considering the submissions made by the learned Advocate appearing for the respective parties and also considering the Writ Petition along with the annexures therein and also considering the affidavit-in-opposition and the Supplementary Affidavit-in-Opposition filed by the respondent Nos. 2 and 4 along with the annexures therein, it appears to us that the instant College was established by the name and title of Kamarkhali College in the District of Faridpur which was subsequently renamed as Bir Sherestha Abdul Rouf Degree College. The petitioners admittedly had been serving the College as Principal-in-Charge/lecturers in the said College but the College was nationalized by the Government on 22-12-2011 and renamed as the Sarkari Bir Sherestha Abdul Rouf degree College. At the time of nationalization of the said College there was a law existing for absorption of the teachers from a private college to a nationalized College which contains in Rule (Q) of the ??????????? ???? ?????? ? ?-?????? ???????? ???????? ???????? 2000| The said rule contains relevant provision under rule 9 as to the effect of converting a private college into a nationalized college. rule 9 of the said Rules, 2000 is reproduced below:
“?? ??????? ? ?????? (?) ??????????? ???? ?????? ? ?-?????? ???????? ???????? ????????, ???? ???????? ???? ??? ????
(?) ?? ?????? ??????? ????? ????? ?? ???, ??????????? ???? ?????? ? ?-?????? ???????? ???????? ????????, ???? ??? ???? ???????? ?????? ??????? ??? ???????? ??? ???-???????? ????? ?? ???????????? ??????? (??????????? ?? ?????? ???????????) ?????????? ?????, ???? ?? ???? ???????? ?????? ?? ???????? ??????? ????? ?????? ?? ?????????, ???????? ? ?????? ???????? ???????? ?? ?????? ??????? ???? ???? ?????? ??? ??????? ??? ??? ??????? ????????? ? ?????? ??????????? ???????? ???????? ??????? ???????? ?????????? ???? ??????? ????????? ????????? ????????? ???? ??? ?? ?????????? ???????? ???????? ???????? ????????? ????????, ???? ????? ? ???????? ?????? ?????? ???????
(?) ?? ???????? ????? ?????? ??????????? ??? ?????? ?????? ? ?-?????? ????????? ????? ?????? ?? ???? ??????, ???? ????? ????????? ??? ????????? ????? ?? ???????? ???????? ?????”
??. ??? ?????????????? ???? ? ??? ???????????? ??????? ?? ??? ?? ????????? ???-???? (?) ?? ??? ??????? ???????????? ????? ?-??-???? ????? ????? ?? ???????:-
“(?) ?? ???????? ???????? ????????? ???? ????? ????? ?? ???, ?? ???????? ????? ?????? ??????????? ????? ?????? ????????? ?????????, ??????? ??? ???? ??????? ???????? ??? ??????? ?????? ??????????? ???????? ?? ???????? ?????? ????????? ????????? ??????? ????????? ?????”
12. Since 2001 the Public Service Commission recommended the certain amendment of the said provision of rule 9(4) on 19-10-2011 (Annexure-3) of the Affidavit-in opposition which reads as follows:-
“?? ??????????? ????? ?????? ?????? ? ??????? ???????? ????????? ????????, ???? ??-???? ?(?) ?? ????? ?? ???-???/???? ??????? ??????????? ????? ???? ???? ????? ??-?-???? ? ??-?-???? ??????? ????? ??????????? ?????? ????? (??? ???????) ????????? ?????? ?????????? ??-?-???? ??????? ??? ?? ????? ???????? ????? ???-???/???? ?? ?????????? ?????? ???????????? ????? ??????? ????? ???? ??š’ ???????? ????? ????? ????? ?? ?? ????? ????? ??-??? ???/???? ?? ?? ?????? ???????? ?????? ???????????? ???? ????? ????? ?? (??? ???????)? ???????? ? ????? ??? ???? ????? ??????
?? ?????¯’?? ???????? ????????, ???? ?? ??-???? ?(?) ?? ????? ?? ??? ???/???? ????? ??? ??????? ??????? ??????? ???? ????? ?? ????????? ???? ?????? ?????????? ??-???? ?(?) ???????? ????? ????????? ?? ????? ? ????? ???????? ?????? ???? ???? ?????? ??? ??”???”
13. Finally the respondents are considering to attend the Rule in order to facilitate a teacher / lecture of a Private College converted into a nationalized college by relaxing the educational qualifications by way of the resolution of the Ministry of Public Administration dated 18-12-2011 which suggested to insert the following provision under Rule, 2001 in the following terms:-
“(?) ???”??? ? ?? ??????????? ????? ?????? ??????????, ?????? ????????? ?????? ??-??-????, ?????? ??? ?????????? ?????????? ?????? ??-??-???? ?????? ??????? ??????? ????? ??????????? ???? ??????-??????? ???????? ???????? ????????, ???? ?????? ????????? ????????? ??????? ????????? ????? ??????? ??????? ??????? ??????????? ??????? ??????? ?????????? ???? ????? ???????? ??? ???? ????????? ????????? ??????? ?????? ????????? ??????? ????? ???? ?????”
14. From the above all these provisions and decisions, the respondent have been considering to accommodate the petitioners in the nationalized College.
15. Most importantly, the Ministry of Public Administration passed an order to create post for 27 teaching and non-teaching staffs through the Memo bearing No. 05.00.0000.155.15.028.09428 dated 12-8-2012. The said order contains a clear provision for appointing qualified teachers under the standard as a BCS Cadre. However, the said order also contains a provision for absorbing the existing lecturers in the College before it was a Private Institution and after it was nationalized on condition to obtaining required academic qualification within 3 years from the date of absorption. This condition is most relevant provision for the present petitioners which reads as follows:-
“(?) ?????? ??????? ????? ???????? ?????? ???? ???? ????????? ????????? ?????? ????????? ???????? ??????? ????? ???? ??? ??????? ???????? ??????? ??? ??????? ?? ???? ????? ?????? ???????? ?????????? ? ????? ????? ???? ????????? ???????? ??????? ????? ???? ??? ?? ?? ??? ????????? ?????? ?????? ???????? ???? ????? ?????? ????????”
16. From the above lengthy process of decision to absorb lecturers/ teachers like the present petitioners on fulfilling the certain specific condition. It is admitted position at the present moment the petitioners did not have the required academic qualification of First Class or Second Class in (Hon’s) and Masters Degree but all of them obtained Second Class in the Masters Degree. Now the question is whether the said academic qualification can be relaxed to facilitate the petitioners for absorbing in the College as they were holding the posts prior to nationalization of the College. To answer the said question we consider that the said requirement of academic qualifications are equivalent to Public Service Commission (BCS) in Education Cadre Service but none of the petitioners expressed their willingness to be included in the academic cadre service. We also consider that in the present case the petitioners came before this court only for absorption as lecturers on condition to obtain first class MA/MSc within 3 years. In this regard, we consider that academic background is most important to set standard equivalent to a BCS Cadre but at the same time the respondents should not ignore the teaching experience of a teacher for a long period of lime. In the instant case, the petitioners have been serving as lecturers between the period of 15 years to 30 years but it became an unfortunate event for them as soon as the College has been nationalized. It can be placed for argument sake that as to why they could not have the required academic qualification for absorbing in the service, even though, they were receiving the government salaries and other benefits as being listed in the MPO for such a long period of time. We consider that the order passed by the respondent No.4, the Deputy Secretary of Ministry of Public Administration on “12-8-2012 for relaxing the required academic requirements in cases of the teaching staffs who could not qualify under the BCS requirement to be appointed as lecturers or teachers. This relaxation is not without any specific terms and conditions because the petitioners have to quallify as per the requirement of the BCS Cadre Service within 3 years from the date of absorption as the lecturers, otherwise, the petitioners would certainly loose the benefits of the provision of the said order. This condition requires the petitioners to cure their academic qualification within a stipulated period of time in order to get the provision of relax facilities to continue as lecturers in the said College. In the above circumstances, we consider that the petitioners are entitled to get absorbed as the lecturers on condition of obtaining required academic qualification within 3 years from the date of absorption. We, therefore, consider the petitioners should be absorbed in the College.
17. Accordingly we find merit in the Rule.
18. In the result, the Rule is made absolute without any order as to costs.
19. In view of the above findings, the respondents are hereby directed to absorb the petitioners within 2 (two) months from the date of receipt of the copy of the judgment of this court in their respective post as the lecturers.
20. The respondents are also directed to allow the petitioners to get required qualification within 3 (three) years from the date of absorption, in failure, the petitioners will loose the benefits of this judgment and order to continue as the as lecturers in the service.
