High Court Division :(Special Original Jurisdiction) Syed Refaat Ahmed J Md Ashraful Kamal JJudgment February 1st, 2012.Naren Chandra Barman ……..Petitioner vs Bangladesh and others ………… RespondentsConstitution of Bangladesh, 1972 Article 102(2) MPO-It is the duty of every person discharging the functions and duties of public office to pass his/her order/orders in clear language mentioning the specific provisions of law whenever applicable. The inaction of the respondents manifested is not giving the petitioner’s government portion of monthly salary or MPO is found to be without legal authority …… (10 & 11) Syed Mamun Mahbub, Advocate-For the Petitioner. Israt Jahan, AAG-For the RespondentJudgment Md Ashraful Kamal J : This Rule Nisi was issued at the instance of the petitioner Naren Chandra Barman on an application under Article 102 of the Constitution of the People’s Republic of Bangladesh calling upon the respondents to show cause as to why they shall not be directed to provide the petitioner salary scale of an Assistant Professor of Mirbagh Degree College under the Police Station Kaunia of District Rangpur. 2. Brief facts, necessary for the disposal of this Rule, are as follows; On 14-10-1995 petitioner was appointed as Lecturer, for the Department of Mathematics, Mirbag Mahabiddaloy, Kaunia, Rangpur pursuant to the decision dated 14-10-1995 passed by the organizing committee of Mirbagh Mahabiddaloy, accordingly on 16-10-1995 he joined Mirbagh Mahabiddaloy. His name was included in the list of the MPO on March, 2000 and since then he has been getting his government portion of monthly salary as Lecturer. Thereafter, on 22-4-2003 the governing body of Mirbagh Mahabiddaloy promoted him to the post of Assistant Professor for the Department of Mathematics in accordance with law. The petitioner then applied to the Director General, Director of Secondary and Higher Education (respondent No.2) to give him scale for Assistant Professor instead of Lecturer from May, 2003 onwards. On 19-2-2008 the Principal of Mirbagh Mahabiddaloy also sent a letter to the respondent No. 2 requesting to pay the petitioner’s salary scale as Assistant Professor, which reads as follows: ?????? ?????? ???????????¯’???? ? ??????????? ? ??????,?????? ? ???????,???? ? ??????????? ??? ? ????, ?”? ???????? ??? ? ?????????? ??-??, ??/???/?? ??-???/??????? ? ??-?-??????????,??????? (??????????)?????? ?????? ??????????????????, ????????????,???????,???????? ? ?”??????? ????????,????, ????????????? ? ???? ????? (?????? ??????? ??) ???????? ???? ??????????,??????? ?????? ?????????? ????? ??? ?????? ???? ????”?? ??, ????????? ???????? ??/??/?? ?? ?????? ???? ???????????? ??????????? ?????? ?????? ??? ?????, ???? ?? ????? ??? ?????? ???? ?????? ???? ? ?????? ???? ????? ??? ???? ????????”??? ?????/???? ?? ????? ??? ???? ????? ??????? ??? ?????? ???????? ????? ??????? ???????? ??????? ????? ??? ?? ??? ?? ??? ? ????????, ????????? ?????????? ???? ????? (?????? ??????? ??) ???????? ???? ????? ?????? ??????????????? ?????? ??????? ???????? ?????? ??????? (??????????)???????, ????? ?????? ?????? ??????????????????, ?????3. Thus notwithstanding, the respondent No.2 failed to respond to the same. Thereafter, the petitioner on 15-2-2009 served the Demand of Justice Notice upon the respondents but in vain. Having found no other efficacious remedy the petitioner moved this High Court Division and obtained the instant Rule. (To be continued)4. Mr Syed Mamun Mahbub, the learned Advocate appearing for the petitioner at the outset refutes that the petitioner did not at all possess a master’s degree at the time of joining. In this regard, he submits by reference in particular to the petitioner’s Supplementary Affidavit that although at the time of joining i.e., on 16-10-1995 the petitioner had master’s degree (3rd class) but subsequently he improved that qualification by getting his master’s degree (2nd class) on 10-8-1996. Therefore, the Managing Committee of Mirbagh Mahabiddaloy after complying with the requirements as enunciated in the ‘paripatra’ of the ???????? ?????? ?????????? (???????? ????) ?? ?????? ? ??????????? ???? ??????? ?????? ??? ?????? ??? ???? ?????? ????????? ???????? 1995 promoted the petitioner to the post of Assistant Professor of Department of Mathematics. Next, he submits that in the aforesaid premises the petitioner is legally entitled to salary at the rank of Assistant Professor instead of as Lecturer of Mirbagh Mahabiddaloy. But the respondents did not pay the same and have acted in an arbitrary manner. On closing his submissions Mr Mamun prays to make the Rule absolute. 5. Ms Israt Jahan, the learned Assistant Attorney General appearing for all the respondents submits that at the time of appointment the petitioner had not any master’s degree, therefore his promotion for the post of Assistant Professor was illegal and, accordingly, he has no right to get his salary at the scale of Assistant Professor. 6. We have gone through the writ petition and the petitioner’s Supplementary Affidavit along with all annexures, and also the Affidavit-in-Opposition filed by the respondent No.2 with annexures therein. 7. The core question before us is whether the petitioner as per provisions of law is entitled to get his salary at the scale of Assistant Professor instead of as Lecturer from May, 2003 onwards. 8. Before entering into the merit of the case, we first take a look into ‘???????? ? ?? ??? ‘?????????’ ?? ??? ???????? ?????? ?????????? (???????? ????) ?? ?????? ? ??????????? ???? ??????? ?????? ??? ?????? ??? ???? ?????? ????????? ???????? published by the Ministry of Education on 24th October, 1995, the relevant portion of which reads thus: ???????? K“???????? ?????? ????? (???????? ????) ?? ?????? ? ??????????? ???? ????? ???????, ???????? ? ???? ??????????? ?? ???? ??? ??????? ???? ???????? ??????? (???????) ???????? ???? ????? ???????? ?????? ??????? ???????? ?????? ???????? ?? ??????? ??????????? ?????? ??? ??? ???????? ?? ??????/????? ???? ?? ??????? ??????????? ???????? ??? ???????? ?? ??????/????? ?????? ????? ????????? ?????? ??????????? ??????? ??? ? ?????? ????????? ???????? 4800 7250 9. The statements made in the affidavit-in-opposition that the petitioner has been promoted without qualifying as per the mandatory requirement of ???????? ‘?’ ?? ??? ‘?????????’ ?? ??? ???????? ?????? ?????????? (???????? ????) ?? ?????? ? ??????????? ???? ??????? ?????? ??? ?????? ??? ???? ?????? ????????? ???????? published by the Ministry of Education on 24th October, 1995 is not correct. In the present case, the petitioner after fulfilling the aforesaid criterion/requirement pertaining to “??????? ???? ???????? ??????? (???????)” applied for the post of Assistant Professor. Then, the governing body of Mirbagh Mahabiddaloy having found the petitioner’s application as per ???????? ‘?’ ?? ??? ‘?????????’ ?? ??? ???????? ?????? ?????????? (???????? ????) ?? ?????? ? ??????????? ???? ??????? ?????? ??? ?????? ??? ???? ?????? ????????? ???????? published by the Ministry of Education on 24th October, 1995 accordingly promoted him to the post of Assistant Professor. 10. On the other hand, it appears from the office memo No. 7wR/09(K-3)/2007/7856/2 31-5-2010 that the respondent No.3 rejected the petitioner’s entitlement of salary at the scale of Assistant Professor on the ground that Òwb‡qvMKv‡j gvóvm© mb` wQj bvÓ| But nowhere in the aforesaid office memo dated 31-5-2010 the respondent No.2 either mentions or specifies any provision of law, which was violated by the governing body of Mirbagh Mahabiddaloy at the time of promoting the present petitioner. It is the duty of every person discharging the functions and duties of public office to pass his/her order/orders in clear language mentioning the specific provisions of law whenever applicable. 11. In light of the above facts and circumstances, we are of the view that the governing body of Mirbagh Mahabiddaloy did not violate any provision of law as laid down in the ‘Paripatra’ by promoting the petitioner to the post of Assistant Professor. Thereafter, the inaction of the respondents manifested in not giving the petitioner’s government portion of monthly salary or MPO at the salary scale of Assistant Professor is found to be without legal authority. The same also reflects an arbitrary abdication of duty by a public authority and the facts and circumstances also involve a violation of the elementary principles of natural justice. 12. In view of the above findings, we find substance in the Rule. This Court, accordingly, finds that the petitioner is legally entitled to have the government portion of monthly salary or MPO at the scale of Assistant Professor from May, 2003 onwards. 13. In the result, the Rule is made absolute. The respondents are, hereby, directed to pay the petitioner’s government portion of monthly salary or MPO at the salary scale of Assistant Professor from May, 2003 onwards.There is no order as to costsCommunicate this Judgment at once.
