(Special Original Jurisdiction)
Md Ashfaqul
Islam J
Zafar Ahmed J
Ahsanullah (Md) ……….
……………….Petitioner
vs
Bangladesh represented by the Secretary Ministry of Education and others ………. Respondents
Judgment
February 25th, 2016
Constitution of Bangladesh, 1972 Article 102(2)
The propositi6n of law that the decision of Managing Committee cannot even be challenged indirectly has been well-founded by a series of decisions of the Appellate Division and this Division. This is no longer a resintegra. The appointment in question was made in the year 2004 and hence we found no earthly reason why the petitioner had to wait for the report and then he filed this petition. This propensity is preposterous. It seems that from the date of the appointment in question back in ·the year 2004 he kept his grievances dormant.
But with the issuance of the Annexure-‘H’ which is merely a report he made a sudden leap to Article 102. This is a feeble effort on his part only to try a luck to achieve something indirectly which he directly could not achieve. Law does not permit to achieve something indirectly which one cannot earn directly. . ….. (6)
Chairman, Governing Body Bangladesh Rifles School and College vs Md Golam Kibria, 15 MLR (AD) 497; Nure Alam Jahangir (Md) vs Government of Bangladesh, 60 DLR (AD) 12; Deen Mohammad vs Government of Bangladesh, 14 BLD (AD) 142 and Fazlur Rahman Akhond vs Government of Bangladesh, 52 DLR (AD) 116 ref.
Aminul Haque, Senior Advocate, Md Zafar Ali with Elida Yeasin, Advocates – For the Petitioner.
Md Humayun Kabir, Advocate-For Respondent No.4.
M Nazrul Islam Khandaker, Advocate – For Respondent No.5 .
Judgment
Md Ashfaqul Islam J : At the instance of the petitioner, Md Ahsanullah, this Rule Nisi was issued in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the respondents shall not be directed to take necessary action in pursuance of the Audit Report conducted by the Inspection and Audit Department, Ministry of Education containing Memo No. ¯§viK bs wWAvBG/wc‡ivRcyi/1113-Gg/Lyjbv-1829 dated 13-2-2011 (Annexure-“H”) which reveals unlawful appointment of respondent No.5 as an Assistant Professor instead of the petitioner of Gonman Sohagdal Salehi Fazil Madrasa, Upazilla, Nesarabad, District-Perojpur”.
2. The averments made in the petition leading to the Rule are as under :-
The petitioner Md Ahsanullah was an Assistant Moulavi of Dumuria Nesari Senior Alim Madrasa under Upazilla Najirpur, District- Pirojpur who joined in service on 1-8-1995. He served in the aforesaid Madrasa till 21-5-2000 with the full satisfaction of all concerned including the students, teachers, governing body and guardians of the Madrasa. In response to an advertisement made by the Respondents No.3 Gonman Sohagdal Salehia Fazil Madrasha for the post of a lecturer (Arabic), the petitioner applied as one of the candidates for the said post and after interview he was selected for the same and accordingly he was given appointment letter on 22-5-2000.
3. It has been further stated that the respondent No.5 Moulana Md Shihab Uddin was appointed who joined as an Assistant Moulovi on 5-3-1996 in the aforesaid Gonman Sohagdal Salehia Fazil Madrasa who was junior in service to the petitioner by 7 months 4 days since the petitioner joined the same service on 1-8-1995. By a resolution of the Managing Committee of respondent No.3 dated 3-6-2004 the said respondent No.5 was promoted to the post of Assistant Professor superseding the petitioner though the petitioner was senior to him in service and was illegible in all respect to get promotion in preference to said Respondent without having any good and legal reason whatsoever.
Against the said decision the present petitioner being aggrieved made representations on 5-6-2004 to the Principal of the Madrasha but no action was taken on the representation. Since thereafter both the petitioner and the respondent No.5 continued in their respective Job. The petitioner being aggrieved by the appointment of respondent No.5 all of a sudden moved this petition and obtained the present Rule. Be it mentioned that the audit report dated 13-2-2011 (Annexure-‘H”) reveals:
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This report was done by, the Director, Inspection and Audit, Ministry of Education, Government of the Peoples Republic of Bangladesh, Dhaka who sent the report on 13-2-2011 (Annexure-“H”).
This is the background of the case.
4. Mr Aminul Hoque, the learned Senior Advocate appearing with Mr Md Zafar Ali, the learned counsel for the petitioner after placing the petition, the Audit Report dated 13-2-2011 (Annexure-H) and other materials on record mainly sought for a direction upon all the respondents to take necessary action in pursuance of Audit Report dated 13-2-2011 (Annexure-H) which mainly reveals unlawful appointment of respondent No. 5 as an, Assistant Professor instead of the petitioner of the esteem Madrasa. In elaborating his submissions the learned senior counsel submits that though the respondent No.5 was junior to the petitioner and this fact has been supported by the Audit Report (Annexure-H), the appointment of the respondent No. 5 by a resolution of the Managing Committee of the esteem Madrasa dated 3-6-2004 was illegal in all respect which should be declared to have been done without any lawful authority and is of no legal effect.
5. Respondent No. 4 is the Managing Committee of the esteem Madrasa and has been represented by Mr Humayun Kabir, the learned counsel who has filed affidavit-in-opposition. And respondent No.5 has been represented by Mr M Nazrul Islam Khandakar, the learned counsel who opposes the Rule filing affidavit-in-opposition And respondent No. 5 has been represented by Mr M Nazrul Islam Khandakar, the learned counsel who opposes the Rule filing affidavit-in-opposition.
The bone of their contention is similar. Mr Humayun Kabir has drawn our attention to paragraph 10 of the affidavit-in-opposition where the reasons justifying no maintainability of the instant Writ Petition have been detailed. Besides, on the question of maintainability the learned counsel has cited several decisions viz Chairman, Governing Body Bangladesh Rifles School and College vs Md Golam Kibria 15 MLR (AD) 497, Nure Alam Jahangir (Md) vs Government of Bangladesh 60 DLR (AD) 12, Deen Mohammad vs Government of Bangladesh 14 BLD (AD) 142. Further on the question of filing of the Writ Petition at a belated stage, terming it to be unsustainable, he placed reliance on the decision of Fazlur Rahman Akhond (Md) vs Government of Bangladesh 52 DLR (AD) 116.
6. We have heard the learned counsel of both sides and considered their submissions. The proposition of law that the decision of Managing Committee cannot even be challenged indirectly has been well-founded by a series of decisions of the Appellate Division and this Division. This is no longer a resintegra.
The appointment in question was made in the year 2004 and hence we found no earthly reason why the petitioner had to wait for the report (Annexure- H) dated 13-2-2011 and then he filed this petition under Article 102 of the Constitution. This propensity is preposterous. It seems that from the date of the appointment in question back in the year 2004 he kept his grievances dormant. But with the issuance of the Annexure-‘H’ which is merely a report he made a sudden leap to Article 102. This is a feeble effort on his part only to try a luck to achieve something indirectly which he directly could not achieve. Law does not permit to achieve something indirectly which one cannot earn directly.
7. That being the position, we are of the view that this Writ Petition itself is not maintainable on the basis of the discussion as made above.
8. In the result, the Rule is discharged, however, without any order as to cost. Communicate this judgment order at once.
