Appellate Division :
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md lmman Ali J
Md Anwarul Haque J
Government of Bangladesh and others … Petitioners
vs
Jamaluddin and another ……….
….. … Respondents*
Judgment
April 10th, 2012
Constitution of Bangladesh, 1972
Article 102
Admitedly, all the three educational institutions in questions were included in the list of MPO by the authority concerned. Before excluding these educational institutions from the list of MPO the authority concerned ought to have assigned reasons for doing so and also given opportunity to these educational institutions of being heard complying the demand of natural justice. Admittedly, the authority concerned did not assign any reason for excluding the educational institutions in question from the list of MPO nor they gave any opportunity to these educational institutions of being heard. The High Court Division rightly declared the impugned memo excluding the name of the educational institutions in question from the list of MPO illegal and rightly directed the respondents to include the name of these educational institution in the list of MPO within the specified time if these educational institutions fulfil the requirements.
B. Hossain, Advocate-on-Record-For the Petitioners (In all the cases)
Abu Siddique, Advocate-on-Record-For Respondent No.1 (In CP No. 356 of 2012)
Nurul Islam, Advocate-on-Record-For Respondent No.1 (In CP No. 1988 of 2011)
Abu Siddique, Advocate-on-Record-For the Respondent (In CP No. 1589 of 2011)
None Represented-Respondent No. 2 (In CP No. 356 of 2012).
None Represented-Respondent Nos. 2-9 (In CP No. 1988 of 2011)
Judgment
Nazmun Ara Sultana J: All these three Civil Petitions for Leave to Appeal have been heard together and are being disposed of by this single judgment since common questions of law and facts are involved in all these 3 leave-petitions.
2. Civil Petition for Leave to Appeal No. 356 of 2012 has been directed against the judgment and order dated 6-1-2011 passed by the High Court Division in Writ Petition No. 5184 of 2010, Civil Petition for Leave to Appeal No. 1988 of 2011 has been directed against the judgment and order dated 15-12-2010 passed by the High Court Division in Writ Petition No. 7740 of 2010 and Civil Petition for Leave to Appeal No. 1589 of 2011 has been directed against the judgment and order dated 6-1-2011 passed by the High Court Division in ‘Writ Petition No. 5185 of 2010. In all these above mentioned three writ petitions the memo: No. Shim/Sha-13/MPO-12/2.009/229 dated 16-6-2010 was challenged and direction was also sought for inclusion of the educational institutions in question in the list of MPO.
3. The case in Writ Petition No. 5184 of 2010, in short, was that Khan Jahan Ali Adarsha Madrasha of the District-Bagerhat was established in the year 1993 and the said madrasha received permission from the- Bangladesh Madrasha Education Board, Dhaka on 1-1-1996 to open Dakhil course and thereafter, on fulfillment of required conditions, the madrasha was given recognition by the Board on 1-1-1997. Because of good result and fulfillment of other required conditions Madrasha Education Board gave permission to open Alim course in this madrasha on 1-7-2002 and also provided recognition for Alim course on 1-7-2005. Thus having fulfilled required condition the madrasha was enlisted in the list of MPO on 6-5-2010 at serial No. 13 (Annexure-C). Subsequently by issuing memo No. Shim/Sha-13/MPO-12/2009/209 dated 31-5-2010 (Annexure-D) the Ministry of Education published the list of 1483 educational institutions which were enlisted in the list of MPO where this madrasha was shown at serial No. 14. That the local Member of Parliament absolutely for political reason issued DO letter to the Ministry concerned on 3-6-2010 requesting to cancel the name of the madrasha and for inclusion of some other madrasha with much lower grade and consequent thereto impugned memo No. Shim/Sha-13/MPO-12/2009/229 dated 16-6-2010 was issued by the Ministry of Education enlisting 190 educational institutions excluding the name of 61 educational institutions including this madrasha without any reason whatsoever. That the District Education Officer, Bagerhat sent letter to the respondent No.2 on 19-5-2010 with recommendation to include the madrasha in the list of MPO, but there was no reply. Finding no other alternative the petitioners filed the writ petition.
4. In Writ Petition No. 7740 of 2010 the case of the writ petitioners, in short, was that An Noor Technical & Business Management College, PS Mojibnagor, District-Meherpur was given permission to start HSC (Business Management) Education vide a memo dated 26-6-2005 for the year 2005-2006. The college authority subsequently forwarded the relevant documents of the teachers and staffs of the said college to the Secretary, Ministry of Education on 22-2-2010 with a prayer to enlist the college in the MPO list. The Ministry of Education vide memo dated 6-5-2010 issued by the Senior Assistant Secretary, Section-13, enlisted the name of this college in the MPO list at serial No. 85 giving effect from 1-1-2010 (Annexure-E). By another memo dated 31-5-2010 (Annexure-F) the Ministry published a fresh list of 1483 educational institutions of the- country with a further declaration that the memo issued earlier on 6-5-2010 was to be treated as ineffective. In the said memo the name of the petitioner’s college had been enlisted and posted at serial No. 52. Later, the respondent No. 1 issuing the impugned memo dated 16-6-2010 published a fresh list enlisting the name of 190 educational institutions of the country excluding the name of 61 educational institutions including the college of the petitioners from the list of MPO without citing any reason whatsoever. Being aggrieved, the petitioners-the Chairman of Governing Body of the college and others have filed this writ petition.
5. In Writ Petition No. 5185 of 2010 the case of the writ petitioners, in short, was that Mobaidul Islam High School in the District Bagerhat was established on 2-1-1998 and it received recognition as ‘High School’ on 1-1-2009. That the school was enlisted in the MPO list published on 6-5-2010. In a subsequent list of MPO published on 31-5-2010 the name of the school was enlisted at serial No. 50. But all of a sudden, by the impugned memo dated 16-6-2010, the name of the school was excluded from the list of MPO without assigning any reason whatsoever. That the impugned memo dated 16-6-2010 was illegal, malafide and without lawful authority inasmuch as by letters dated 6-5-2010 and 31-5-2010 this school was enlisted for MPO which was communicated by Director General, Education to District Education Officer and to the school authority but in the 3rd list published on 16-6-2010 the name of the petitioner school was omitted from MPO without assigning any reason although the school is one of the best schools in the Upazila.
6. The respondent-government, in all those writ petitions contested contending, inter-alia, that according to “‡emiKvix wkÿv cÖwZôvb (¯‹zj, K‡jR, gv`ªvmv I KvwiMwi wkÿv cÖwZôvbmg~n) Gi wkÿK I Kg©Pvix‡`i †eZb-fvZvw`i miKvix Ask cÖ`vb Ges Rbej KvVv‡gv m¤úwK©Z wb‡`©wkKvÓ published on ‘4-2-2010, the government has ample power to curtail/stop the payment of government portion of salaries of the teachers and employees of the educational institutions for violation of the conditions stated in that guideline.
7. The High Court Division, on hearing both the sides, made the rules issued in all those three writ petitions absolute giving direction to the respondents to enlist the name of the educational institutions in question in the MPO list within the specified time provided the educational institutions fulfil the requirements as provided in the above mentioned guidelines of 2010.
8. Mr B Hossain, the learned Advocate on-Record in all the leave petitions though has tried to make some submissions, assailing the impugned judgments of the High Court Division, but he could not make any submission denying the fact that all the three educational institutions of the three writ petitions were included in the list of MPO, but subsequently these educational institutions were excluded from the MPO list without assigning any reason whatsoever and without giving these educational institutions any opportunity of being heard.
9. The learned Advocate for the writ petitioner-respondents have made submissions supporting the impugned judgment.
10. We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgments and materials on record.
11. It appears that the High Court Division clearly found that all these three educational institutions were duly enlisted in the MPO list by the Ministry of Education by the order dated 6-5-2010 and subsequently also by another order dated 31-5-2010 another list of MPO was published wherein also the names of all these three educational institutions were enlisted. The High Court Division rightly found also that before excluding the name of these educational institutions from the list of MPO the authority concerned did not give any opportunity to these educational institutions of being heard nor any show cause notice was served upon these educational institutions assigning any reason whatsoever for excluding the name of these educational institutions from the list of MPO. The High Court Division rightly observed that the principle of natural justice was violated in excluding these educational institutions from the list of MPO.
12. We do not find any reason to interfere with this finding and decision of the High Court Division. Admittedly, all the three educational institutions in questions were included in the list of MPO by the authority concerned. Before excluding these educational institutions from the list of MPO the authority concerned ought to have assigned reasons for doing so and also given opportunity to these educational institutions of being heard complying the demand of natural justice. Admittedly, the authority concerned did not assign any reason for excluding the educational institutions in question from the list of MPO nor they gave any opportunity to these educational institutions of being heard. In the circumstances, the High Court Division rightly declared the impugned memo excluding the name of the educational institutions in question from the list of MPO illegal and rightly directed the respondents to include the name of these educational institutions in the list of MPO within the specifies time if these educational institutions fulfil the requirements as provided in the Ò†emiKvix wkÿv cÖwZôvb (¯‹zj, K‡jR, gv`ªvmv I KvwiMwi wkÿv cÖwZôvbmg~n) Gi wkÿK I Kg©Pvix‡`i †eZb-fvZvw`i miKvix Ask cÖ`vb Ges Rbej KvVv‡gv m¤úwK©Z wb‡`©wkKvÓ published on 4-2-2010.
In the circumstances all these three Civil Petitions for leave to appeal are dismissed.
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md lmman Ali J
Md Anwarul Haque J
Government of Bangladesh and others … Petitioners
vs
Jamaluddin and another ……….
….. … Respondents*
Judgment
April 10th, 2012
Constitution of Bangladesh, 1972
Article 102
Admitedly, all the three educational institutions in questions were included in the list of MPO by the authority concerned. Before excluding these educational institutions from the list of MPO the authority concerned ought to have assigned reasons for doing so and also given opportunity to these educational institutions of being heard complying the demand of natural justice. Admittedly, the authority concerned did not assign any reason for excluding the educational institutions in question from the list of MPO nor they gave any opportunity to these educational institutions of being heard. The High Court Division rightly declared the impugned memo excluding the name of the educational institutions in question from the list of MPO illegal and rightly directed the respondents to include the name of these educational institution in the list of MPO within the specified time if these educational institutions fulfil the requirements.
B. Hossain, Advocate-on-Record-For the Petitioners (In all the cases)
Abu Siddique, Advocate-on-Record-For Respondent No.1 (In CP No. 356 of 2012)
Nurul Islam, Advocate-on-Record-For Respondent No.1 (In CP No. 1988 of 2011)
Abu Siddique, Advocate-on-Record-For the Respondent (In CP No. 1589 of 2011)
None Represented-Respondent No. 2 (In CP No. 356 of 2012).
None Represented-Respondent Nos. 2-9 (In CP No. 1988 of 2011)
Judgment
Nazmun Ara Sultana J: All these three Civil Petitions for Leave to Appeal have been heard together and are being disposed of by this single judgment since common questions of law and facts are involved in all these 3 leave-petitions.
2. Civil Petition for Leave to Appeal No. 356 of 2012 has been directed against the judgment and order dated 6-1-2011 passed by the High Court Division in Writ Petition No. 5184 of 2010, Civil Petition for Leave to Appeal No. 1988 of 2011 has been directed against the judgment and order dated 15-12-2010 passed by the High Court Division in Writ Petition No. 7740 of 2010 and Civil Petition for Leave to Appeal No. 1589 of 2011 has been directed against the judgment and order dated 6-1-2011 passed by the High Court Division in ‘Writ Petition No. 5185 of 2010. In all these above mentioned three writ petitions the memo: No. Shim/Sha-13/MPO-12/2.009/229 dated 16-6-2010 was challenged and direction was also sought for inclusion of the educational institutions in question in the list of MPO.
3. The case in Writ Petition No. 5184 of 2010, in short, was that Khan Jahan Ali Adarsha Madrasha of the District-Bagerhat was established in the year 1993 and the said madrasha received permission from the- Bangladesh Madrasha Education Board, Dhaka on 1-1-1996 to open Dakhil course and thereafter, on fulfillment of required conditions, the madrasha was given recognition by the Board on 1-1-1997. Because of good result and fulfillment of other required conditions Madrasha Education Board gave permission to open Alim course in this madrasha on 1-7-2002 and also provided recognition for Alim course on 1-7-2005. Thus having fulfilled required condition the madrasha was enlisted in the list of MPO on 6-5-2010 at serial No. 13 (Annexure-C). Subsequently by issuing memo No. Shim/Sha-13/MPO-12/2009/209 dated 31-5-2010 (Annexure-D) the Ministry of Education published the list of 1483 educational institutions which were enlisted in the list of MPO where this madrasha was shown at serial No. 14. That the local Member of Parliament absolutely for political reason issued DO letter to the Ministry concerned on 3-6-2010 requesting to cancel the name of the madrasha and for inclusion of some other madrasha with much lower grade and consequent thereto impugned memo No. Shim/Sha-13/MPO-12/2009/229 dated 16-6-2010 was issued by the Ministry of Education enlisting 190 educational institutions excluding the name of 61 educational institutions including this madrasha without any reason whatsoever. That the District Education Officer, Bagerhat sent letter to the respondent No.2 on 19-5-2010 with recommendation to include the madrasha in the list of MPO, but there was no reply. Finding no other alternative the petitioners filed the writ petition.
4. In Writ Petition No. 7740 of 2010 the case of the writ petitioners, in short, was that An Noor Technical & Business Management College, PS Mojibnagor, District-Meherpur was given permission to start HSC (Business Management) Education vide a memo dated 26-6-2005 for the year 2005-2006. The college authority subsequently forwarded the relevant documents of the teachers and staffs of the said college to the Secretary, Ministry of Education on 22-2-2010 with a prayer to enlist the college in the MPO list. The Ministry of Education vide memo dated 6-5-2010 issued by the Senior Assistant Secretary, Section-13, enlisted the name of this college in the MPO list at serial No. 85 giving effect from 1-1-2010 (Annexure-E). By another memo dated 31-5-2010 (Annexure-F) the Ministry published a fresh list of 1483 educational institutions of the- country with a further declaration that the memo issued earlier on 6-5-2010 was to be treated as ineffective. In the said memo the name of the petitioner’s college had been enlisted and posted at serial No. 52. Later, the respondent No. 1 issuing the impugned memo dated 16-6-2010 published a fresh list enlisting the name of 190 educational institutions of the country excluding the name of 61 educational institutions including the college of the petitioners from the list of MPO without citing any reason whatsoever. Being aggrieved, the petitioners-the Chairman of Governing Body of the college and others have filed this writ petition.
5. In Writ Petition No. 5185 of 2010 the case of the writ petitioners, in short, was that Mobaidul Islam High School in the District Bagerhat was established on 2-1-1998 and it received recognition as ‘High School’ on 1-1-2009. That the school was enlisted in the MPO list published on 6-5-2010. In a subsequent list of MPO published on 31-5-2010 the name of the school was enlisted at serial No. 50. But all of a sudden, by the impugned memo dated 16-6-2010, the name of the school was excluded from the list of MPO without assigning any reason whatsoever. That the impugned memo dated 16-6-2010 was illegal, malafide and without lawful authority inasmuch as by letters dated 6-5-2010 and 31-5-2010 this school was enlisted for MPO which was communicated by Director General, Education to District Education Officer and to the school authority but in the 3rd list published on 16-6-2010 the name of the petitioner school was omitted from MPO without assigning any reason although the school is one of the best schools in the Upazila.
6. The respondent-government, in all those writ petitions contested contending, inter-alia, that according to “‡emiKvix wkÿv cÖwZôvb (¯‹zj, K‡jR, gv`ªvmv I KvwiMwi wkÿv cÖwZôvbmg~n) Gi wkÿK I Kg©Pvix‡`i †eZb-fvZvw`i miKvix Ask cÖ`vb Ges Rbej KvVv‡gv m¤úwK©Z wb‡`©wkKvÓ published on ‘4-2-2010, the government has ample power to curtail/stop the payment of government portion of salaries of the teachers and employees of the educational institutions for violation of the conditions stated in that guideline.
7. The High Court Division, on hearing both the sides, made the rules issued in all those three writ petitions absolute giving direction to the respondents to enlist the name of the educational institutions in question in the MPO list within the specified time provided the educational institutions fulfil the requirements as provided in the above mentioned guidelines of 2010.
8. Mr B Hossain, the learned Advocate on-Record in all the leave petitions though has tried to make some submissions, assailing the impugned judgments of the High Court Division, but he could not make any submission denying the fact that all the three educational institutions of the three writ petitions were included in the list of MPO, but subsequently these educational institutions were excluded from the MPO list without assigning any reason whatsoever and without giving these educational institutions any opportunity of being heard.
9. The learned Advocate for the writ petitioner-respondents have made submissions supporting the impugned judgment.
10. We have considered the submissions of the learned Advocates of both the sides and gone through the impugned judgments and materials on record.
11. It appears that the High Court Division clearly found that all these three educational institutions were duly enlisted in the MPO list by the Ministry of Education by the order dated 6-5-2010 and subsequently also by another order dated 31-5-2010 another list of MPO was published wherein also the names of all these three educational institutions were enlisted. The High Court Division rightly found also that before excluding the name of these educational institutions from the list of MPO the authority concerned did not give any opportunity to these educational institutions of being heard nor any show cause notice was served upon these educational institutions assigning any reason whatsoever for excluding the name of these educational institutions from the list of MPO. The High Court Division rightly observed that the principle of natural justice was violated in excluding these educational institutions from the list of MPO.
12. We do not find any reason to interfere with this finding and decision of the High Court Division. Admittedly, all the three educational institutions in questions were included in the list of MPO by the authority concerned. Before excluding these educational institutions from the list of MPO the authority concerned ought to have assigned reasons for doing so and also given opportunity to these educational institutions of being heard complying the demand of natural justice. Admittedly, the authority concerned did not assign any reason for excluding the educational institutions in question from the list of MPO nor they gave any opportunity to these educational institutions of being heard. In the circumstances, the High Court Division rightly declared the impugned memo excluding the name of the educational institutions in question from the list of MPO illegal and rightly directed the respondents to include the name of these educational institutions in the list of MPO within the specifies time if these educational institutions fulfil the requirements as provided in the Ò†emiKvix wkÿv cÖwZôvb (¯‹zj, K‡jR, gv`ªvmv I KvwiMwi wkÿv cÖwZôvbmg~n) Gi wkÿK I Kg©Pvix‡`i †eZb-fvZvw`i miKvix Ask cÖ`vb Ges Rbej KvVv‡gv m¤úwK©Z wb‡`©wkKvÓ published on 4-2-2010.
In the circumstances all these three Civil Petitions for leave to appeal are dismissed.
