(Special Original Jurisdiction)
Zinat Ara J
AKM Shahidul Huq J
Wakil Uddin (Md) and others ………Petitioners
vs
Government of the People’s Republic of Bangladesh, represented by the Secretary of Ministry of Education Dhaka others ………… Respondents'”
Judgment
November 23rd, 2015.
Constitution of Bangladesh, 1972 Article 102(2)
There is no Gazette Notification of the Nitimala and so there is no such legal provision to nationalize the private School. Government failed to show that the Government can nationalize private School under any law without the consent of the Managing Committee and all concern. Principal and Headmaster of the School without approval of the Managing Committee has no authority as well as jurisdiction to execute a deed of gift of the private school property to anyone. Parliament through legislation may make appropriate provisions for nationalization of private school. …….(33 & 34)
Qumrul Huq Siddiqui with AM Mahbubddin Khokan with SM Rezaul Karim and Nazmul Huda, Advocates-For the Petitioners.
S Rashed ]ahangir, DAG Titus Hillol Raman, AAG Salma Rahman, AAG-For the Respondents.
KM Saifuddin Ahmed with Shahida Akhter with Hossen Mohd Shoaib, Advocates-For the Respondent No.7.
Judgment
AKM Shahidul Huq J : On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh made by the petitioner this court on 24-2-2014 issued a rule Nisi in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the initiation of the process of nationalization of Kalachandpur Higher Secondary School, Gulshan, Dhaka without discussing the same with the Governing body of the said School should not be declared to have been processed without lawful authority and is of no legal effect and or pass such other or further order or orders as to this court may seem fit and proper”.
2. Relevant facts necessary for disposal of the rule is that :
The Kalachandpur Higher Secondary School hereinafter called the school was established in the year of 1961 upon 40.425 decimals of land gifted by late Alhaj Abed Ali, the School as plaintiff instituted Civil Suit being Title Suit No. 74 of 2003 is pending in the Court of Additional Assistant Judge, Dhaka against Md Delwar Hossain Khan in respect of same lands of the School and the said Md Delwar Hossain Khan as plaintiff also instituted Title Suit 803 of 2012 in the Assistant Judge, 2nd Court, Dhaka against the said School for permanent injunction in respect of the same land both the suits are pending.
3. The said school constructed 4(four) buildings-3 (three) storied building and 1 two-storied building. The said school was allowed to open start XI and XII Class by the Secondary and Higher Secondary Education Board, Dhaka from 2002-2003 sessions vide Memo dated 5-10-2002. The said school has been imparting education to the students in 3 levels :-
(a) Primary level (Class 1 to V)
(b) Secondary level (Class VI to X)
(c) Higher Secondary level (Class XI to XII)
At present 2,667 students are studying as under:
(a) Primary level – 482 students
(b) Secondary level – 1,894 students
(c) Higher Secondary level- 291 students.
4. There are 78 teachers and non-teaching
staff (Teachers -63 and Non teaching staff-15). The School has been enlisted for Monthly Pay Order (MPO) for the teachers and non-teaching staff for the Secondary level in the year 2010 but has not been enlisted for the primary level. The teachers and non-teaching staff of primary level have not yet been enlisted MPO.
5. The said school is being managed smoothly and efficiently by a Governing Body duly approved by the Secondary and Higher Secondary Education Board, Dhaka as per the
???????? ? ???? ???????? ?????? ?????, ???? (???????? ? ???? ???????? ?????? ???????? ?????? ???????????? ??????? ??? ? ????????? ?????) ????????????, 2009, hereinafter called “the Regulation, 2009”. The said school is funded by the donation of local elite and tuition fees of the students.
Petitioners Case
6. The petitioner recently came to know that the Government of Bangladesh has been taking steps for nationalization of the said school. Thereafter they on enquiry from the office of the Respondent No.3 came to know about the Letter of the Government dated 22-10-2013 and the Memo dated 30-10-2013 of the Director-General, Directorate of the Secondary and Higher Education taking steps for nationalization of the said school. The aforesaid Letter and Memo were not even served upon the said School through addressed. However, they somehow collected the photocopies of the Letter dated 22-10-2013 of the Ministry and Memo dated 30-10-2013 of the Respondent No.3 from the office of the Respondent No.3.
7. The local people and the guardians of the students made protests with School authority against the action being taken by the Government for nationalization of the said School. Furthermore, 450 guardians signed a letter to the Respondent No.3 urging them not to proceed with the nationalization of the school on a number of reasons.
8. Firstly, nationalization will limit the number of admissible students causing about 1800 students to drop-out.
9. Secondly, all non-MPO listed teachers and staffs would lose their jobs immediately.
10. Thirdly, the primary section of the school i.e. until Class V, would not be covered under the nationalization, meaning that all students from primary to Class-V would lose their opportunity to study in the school. They represented that there are no other schools of similar quality in a 3-kilometre radius, as such all students who would lose the. opportunity to study in the school would be extremely prejudiced.
11. On this basis, and being concerned about the general welfare of the school, the Governing Body of the said school on its meeting held on 21-11-2013 decided and resolved not to nationalize the said school. The said resolution of the Governing Body of the School was sent to the Respondents with a forwarding letter dated 2-12-2013. The resolution dated 21-11-2013 is reproduced herein below:
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12. Following the resolution of the Governing Body of the School dated 21-11-2013, the Petitioner No.1 being the Chairman of the said Body, sent a letter dated 28-11-2013 to the Respondent No.1 and other relevant authorities, informing them of the said decision and requesting him to take appropriate steps with regards to the matter.
13. On 3-12-2013 non-MPO listed teachers and officials of the school sent a letter to the Respondents informing them of the grievance that they would suffer if the school is nationalized, since the nationalization will result in loss of their jobs.
14. Mr AM Mahbub Uddin, the learned Advocate appearing on behalf of the petitioner, Mr S Rashed Jahangir, Deputy Attorney General appearing on behalf of the respondent No.3 and contested the rule by filing an affidavit-in-opposition. Mr KM Saifuddin Ahmed the learned Advocate appearing on behalf ot’ respondent No.7 and contested the rule by filing affidavit-in-opposition.
Arguments of the contending parties
15. Mr AM Mahbub Uddin, the learned Advocate appearing for the petitioners takes us the writ petition and connected materials on record and put forward the following arguments.
16. The execution of the Deed of Gift being Deed No. 791 dated 5-2-2014 registered before the Sub-Registrar, Gulshan, Dhaka executed by the acting Principal of the School is ultra-vires and, as such, the nationalization process based on the said Deed is illegal and without lawful authority.
17. The learned Advocate further submits that the Respondents acted in an arbitrary and malafide manner by obtaining a Deed of Gift from the acting Principal of the School while knowing fully well from the letters dated 28-11-2013 and 2-12-2013 that the Governing Body of the School, the appropriate authority for such matter, has rejected the proposal for nationalization of the school.
18. The learned Advocate for the petitioner next submits that the act of obtaining the Deed of Gift without disposing of the petitioner’s representations as per the direction of the Hon’ble High Court Division in Writ Petition No. 716 of 2014, the Respondents have acted in contempt of court, which totally vitiates the legality of the process of nationalization of the aforesaid school.
19. The learned Advocate also submits that the Respondents showed utter disregard and complete disrespect to the Order of the Hon’ble High Court Division disposing of the Writ Petition No. 716 of 2014 dated 28-1-2014, by illegally obtaining the Deed of Gift from the acting Principal of the School before disposing of the application of the Petitioner No.1 as had been directed by this Hon’ble Division.
20. The learned Advocate next submits that there is no legal provision giving the authority to the government to compel a private school to hand over its movable and immovable property and the control of the school; the authority to do so solely lies with the governing authority of the school who are charged with the responsibility to take decision in the best interests of the school, as such the current process of nationalizing the school on the basis of the aforesaid Deed is arbitrary and colourable exercise of power which is liable to be declared illegal and to be without lawful authority.
21. The learned Advocate for the petitioner further submits that the powers of the Governing Body and that of the Principal and other teachers are clearly demarcated in the Regulations, 2009, wherein it is stated that all financial and administrative matters of the school, including the control and responsibility of property and funds of the school are within the jurisdiction of the Governing Body, i.e. the Petitioners, while the Principal/Head Master have jurisdiction over all academic matters. The Respondents having obtained the Deed of Gift from the acting Principal acting ultra-vires, have completely vitiated the legality of the nationalization process, which is now liable to be declared illegal and without lawful authority.
22. The learned Advocate for the petitioner further submits that it is clear from a plain reading of RvZxqKiYK…Z K‡jR wkÿK I A-wkÿK Kg©Pvix AvZ¥xKiY wewagvjv, 2000 that for an educational institution to be nationalized, there must be a transfer of the school’s movable and immovable properties in favour of the government by the “governing authority” of the school and, as such, a Deed executed by anyone else acting beyond his jurisdiction cannot lead a school through the process of nationalization and vitiates the same. As such the nationalization process of the aforesaid school on the basis of the Deed dated 5-2-2014 is liable to be declared illegal and without lawful authority.
23. The learned Advocate for the petitioner lastly submits that a significant section of the students and teachers will suffer hugely if the aforesaid school, which is running efficiently with the management and funding of its governing body and its donors, is nationalized as a large number of students will have to be dropped out, the primary to Class V will not be included, and all the non-MPO-listed teachers will lose their jobs. Since there is no school of similar quality in a 3 kilometre radius, the students of the said school and all families living in the area will suffer immeasurable loss.
Respondent No.3 case
24. The Respondent No.3 contested the rule by filing affidavit-in-opposition controverting the assertions made in writ petition.
25. As against this the learned Deputy Attorney-General appearing on behalf of the respondent No. 3 submits that the Director General, Directorate of Secondary and Higher Education, Shikkha Bhaban, Bangladesh, Dhaka contested the rule by filing affidavit-in-opposition and controverted the statement as made in the Writ Petition under Article 102 of the Constitution of People’s Republic of Bangladesh filed by the petitioner stated that the writ petitioner was not the Chairman of the Governing Body of Kalachandpur Higher Secondary School and College at the time of filing of the writ petition or thereafter it may further be stated that as per “Rule 5 of the Ògva¨wgK I D”P ???????? ?????? ????? ???? (???????? ? ???? ???????? ?????? ???????? ?????? ???????????? ??????? ??? ? ????????? ????? ???????? ???? 2009 the local MP Mr SM Abul Kalam Azad was the Chairman of the Governing Body of the said School from 5-3-2014 and still he is continuing as the chairman of the Managing Committee of the said school as per law of the country. The writ petitioner was Ex- Chairman of the said Governing Body and his chairmanship was ceased to exist from 1-2-2013 as per Notification of the Ministry of Education dated 1-2-2013 and 2-2-2014 signed by the Secretary of the said Ministry.
26. The Kalachandpur Higher Secondary School was established in the year 1961 upon 40.425 decimals of land gifted by the heirs of late Alhaj Abed Ali. It is stated that there is no dispute to any case pending before any court in respect of the said 40.425 decimals of land mentioned above. It may further be mentioned here that the writ petitioner for getting illegal gain showing the said 2 Civil Cases which are not related to the said 40.425 decimals of lands is trying to stop the process of Nationalization of the said School.
27. The further contention of this respondent No.3 is that the writ petitioners did not know about the letter dated 22-10-2013 and 30-10-2013 of the Government and Director General, Directorate of the Secondary and Higher Education in respect of taking steps for nationalization of the said school. In this connection it is stated that the writ petitioner No.1 himself as the then Chairman of the Managing Committee of the said school on 9-7-2013 wrote a letter to the then local MP Mr Hossain Mohammad Ershad and Mr Hossain Mohammad Ershad wrote a letter to the Hon’ble Prime Minister for Nationalization of the said school vide his letter dated 22-7-2013 and thereafter the office of the Prime Minister on 18-8-2013 wrote a letter to the Secretary, Ministry of Education for taking steps as per Rules for Nationalization of the said school. Thereafter the Hon’ble Minister and the Secretary of the Education Ministry sent a Summary vide their letter dated 6-10-2013 to the Hon’ble Prime Minister in respect of Nationalization of the said school for her consent. Then the Hon’ble Prime Minister on 12-10-2013 gave her consent and approval for Nationalization of the said School & College. Accordingly the Ministry of Education and the Directorate of Secondary and Higher Education issued the above mentioned 2 letters dated 22-10-2013 and 30-10-2013 respectively all the process for nationalization of the said school was started from the initiation of the petitioner No. 1. But very surprisingly the writ petitioner denied his knowledge about the said process of nationalization of the said school. The petitioners for getting illegal gain filed this writ petition without considering the future of the students and teachers of the said school. The office of the Prime Minister vide their two letters dated 1-12-2014 advised the Secretary Ministry of Education to take steps for nationalization of the said school urgently but Due to Order of stay of the Hon’ble High Court Division the process for nationalization of the said school is stopped. In this connection it may further be mentioned that most of the student of the said school i.e. around 500 are Tribal and indeginious Group if the school is declared as Nationalized school they will get various educational facilities. But 754 guardians of the students of the said school including the donors of the land of the school wrote the present letter through their the then local MP for nationalization of the said school. As such the rule issued in the Writ Petition is liable to be discharged and the order of stay granted earlier is liable to be vacated with cost. The learned Deputy Attorney General relied his submissions upon an unreported decision of this Hon’ble Division decided on the application filed in writ petition No. 716 of 2014 by the present writ petitioner in which a Division Bench of this Hob’ble Division held that:-
“It appears that the School is a non-Government Secondary School with primary section and while most of the teachers of the said School are enjoying the government salaries (MPO), some of them are being paid by the Managing Committee. It is the apprehension of the committee that the teachers who are not getting MPO at the moment would be excluded from the list of the teaching staffs of the said school if the same is nationalized. However, the learned Advocate for the petitioner concedes to the fact that the task of nationalization of any non-government School, be it primary or secondary, is the discretionary power of the government under the national education policy. Considering the above state of affairs, we are of the view that instead of issuance of any Rule in this case, if we direct the Government to dispose of the petitioner’s applications (annexure-C and C1) then justice will be met”.
Respondent No. 7’s case
28. The respondent No.7, the acting principal of Kalachandpur Secondary School contested the rule by filing affidavit-in-opposition and stated that the writ petitioner was not the Chairman of the Governing Body of Kalachandpur Higher Secondary School and college at the relevant point of time of filing of the writ petition or thereafter. It may further be stated that as per Rule 5 of the ”???????? ? ???? ???????? ?????? ????? ???? (???????? ? ?”? ???????? ?????? ???????? ?????? ???????????? ??????? ??? ? ????????? ?????? ????????????, 2009 the local MP Mr SM Abul Kalam Azad was the chairman of the Governing Body of the said school from 5-3-2014 and still he is continuing as the chairman of the Managing Committee of the said school as per law of the country. The writ petitioner was Ex. Chairman of the said Governing Body and his chairmanship was ceased to exist from 1-12-2013 as per Notification of the Ministry of Education dated 1-12-2013 and 2-2-2014 signed by the Secretary of the said Ministry.
29. Further contention of this respondent is that there is no dispute of any case pending before any court in respect of the said 40.425 decimals of land mentioned above. It may further be mentioned here that the writ petitioner for getting illegal gain showing the said 2 civil cases which are not related to the said 40.425 decimals of lands is trying to stop the process of nationalization of the said school. However if there is any dispute about the lands that land shall be acquired for the school for public interest.
30. The further contention of this respondent is that as being funded by the tuition fees of the students and not by the local citizens.
31. The further contention of this respondent is that the writ petitioner No.1 himself as the then Chairman of the Managing Committee of the said school on 9-7-2013 wrote a letter to the then local MP Mr Hossain Mohammad Ershad and Mr Hossain Mohammad Ershad wrote a letter to the Hon’ble Prime Minister for Nationalization of the said school vide his letter dated 22-7-2013 and thereafter the office of the Prime Minister on 18-8-2013 wrote a letter to the Secretary, Ministry of Education for taking steps as per Rules for Nationalization of the said school.
Thereafter the Hon’ble Minister and the Secretary of the Education Ministry sent a Summary vide their letter dated 6-10-2013 to the Hon’ble Prime Minister in respect of Nationalization of the said school for her consent. Then the Hon’ble Prime Minister on 12-10-2013 gave her consent and approval for Nationalization of the said School and college.
(To be continued)
Accordingly the Ministry of Education and the Directorate of Secondary and Higher Education issued the above mentioned 2 letters dated 22- 10-2013 and 30-10-2013 respectively all the process for nationalization of the said school was started from the initiation of the petitioner No. 1. But very surprisingly the writ petitioner denied his knowledge about the said process of nationalization of the said school. The petitioners for getting illegal gain filed this writ petition without considering the future of the students and teachers of the said school.
32. We have heard the learned Advocates of the contending parties, perused the writ petition, affidavit in opposition filed by the Respondent No.3 and Respondent No.7, the connected materials on the record considered the submissions as advanced by the learned Advocates of the contending parties. On perusal of the writ petition and the materials on record we find that every Educational Institution is being run their administration with some guidelines and certain rules and regulations. In order to run the administration of any School the School must follow. some guidelines otherwise there would be serious anomaly in the smooth functioning of the School. Here the instant School is a non-Government Secondary School with primary section and while most of the teachers of the School are enjoying the government salaries (MPO). Some of them are being paid by the Managing Committee. It is the apprehension of the Committee that the teachers who are not getting MPO at the moment would be excluded from the list of teaching staffs of the said School if the same is nationalized while disposing of the instant writ petition we find that the writ petitioner Kalachandpur Higher Secondary School though established in the year of 1961 upon 40.425 decimals of land though managed smoothly and efficiently by a Governing Body approved by the Education Board, Dhaka from 2002-2003 sessions vide memo dated 5-10-2002. It is very much pertinent to refer gva¨wgK I D”P ???????? ?????? ?????, ???? (???????? ? ?”? ???????? ?????? ???????? ?????? ???????????? ??????? ??? ? ????????? ?????) ????????????, ????
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33. On perusal of the writ petition we find there is no Gazette Notification of the Nitimala and so there is no such legal provision to nationalize the private School. We also find that the Government failed to show that the Government can nationalize private School under any law without the concent of the Managing Committee and all concern. It is also observed that the Principal and Headmaster of the School without approval of the Managing Committee has no authority as well as jurisdiction to execute a deed of gift of the private school property to anyone. In order to nationalize any Private School some guide lines are to be followed which runs as follows :-
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(?) ??? ?????? ?????????? ??? ?????? ?? (??) ???? ?????? ??????????????? ?????? ?????????? ?????? ???????? ?? ??? ???? ?? ?????? ?????????? ?????????? ???? ??????? ???? ???
(?) ?????????? ???? ?????? ????????? ????????, ???????? ? ???? ???????? ??????? ????? ??????????? ???????? ???? ????
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(?) ???????? ?????? ???????? ????? ?”???? ? ????? ???????? ??????? ??????? ????? ??????? ??????? ?????? ???? ??? ?????? ???????? ???????? ????????? ?????? ???? ?????? ????? ??? ???? ????? ???????? ?? ??? ??????? ?????? ???????? ???????? ???, ???? ?? ??? ??????? ???????? ??? ???????? ?????????? ???????? ???? ???? ????? ¯’????? ??????? ? ???? ????????? ??? ???? ???? ? ??????? ? ?????? ???????? ???????????? ???? ???? ???????? ?????? ??? ????? ???? ????????? ??? ???????? ???????, ?????? ????? ??????, ??????? ??????? ??????/???????? ????? ???????? ????¯’? ????? ???? ???? ?? ?????????? ??????? ???????? ?????? ?????????? ?????????? ??? ???? ??? ???? ???????????? ?????? ?”???? ????? ?????? ??????? ??????????? ????????????? ?? ???? ??????? ??????? ???????? ??? ? ????????? ????????? ??? ???? ?????
34. Therefore, without approval of the Managing Committee can be said to be lawful. However the Parliament through legislation may make appropriate provisions for nationalization of private school with the aforesaid observations the rule is disposed of.
35. There will be no order as to cost. Communicate the judgment of this Hon’ble Court to the respondents at once.
