Making and undoing official order

(From previous issue)

28. The English Courts have further expanded the horizon of natural justice by importing the concept of ‘legitimate expectation’ and holding that from promise or from established practice, a duty to act fairly and thus to comply with natural justice may arise. Thus the concepts of ‘fairness’ and ‘legitimate expectation’ have expanded the applicability of natural justice beyond the sphere of right.
29. The application of the Rules of natural justice are no longer tied to the dichotomy of right privilege. It has been stated in “Administrative Law” by HWR Wade, 5th edition at page-465: “For the purpose of natural justice, the question which matters is not whether the claimant has some legal right, but whether the legal power is being exercised over him to his disadvantage. It is not a matter of property or of vested interests, but simply of the exercise of Governmental power in a manner which is fair … ” In the American jurisdiction, the right privilege dichotomy was used to deny due process hearing where no right was involved. But starting with Gonzalez vs. Freeman 334 F, 2nd 570, the Courts gradually shifted in favour of the privilege cases and in the words of Professor Schwartz, “The privilege-right dichotomy is in the process of being completely croded” (“Administrative Law”, 1976, Page-230). Article 31 of our Constitution incorporating the concept of procedural due process, the English decisions expanding the frontiers of natural justice are fully applicable in Bangladesh.
30. The basic principle of fair procedure is that before taking any action against a man, the authority should give him notice of the case and afford him a fair opportunity to answer the case against him and to put forward his own case. The person sought to be affected must know the allegation and the materials to be used against him and he must be given a fair opportunity to correct or contradict them. The right to a fair hearing is now of universal application whenever a decision affecting the rights or interest of a man is made. But such a notice is not required where the action does not affect the complaining party.
31. From an overview of the above-mentioned decisions of various jurisdictions and extracts of the jurists, it is abundantly clear that the university authority should have afforded the petitioners an opportunity of being heard prior to issuance of the impugned order dated 19-11-2008 cancelling their admission from the university. In this regard, we are not at one with Mr M K Rahman that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’.
32. Be that as it may, admittedly the petitioners submitted review applications (Annexure-‘ J’ series) to the university authority seeking reversal of the impugned order dated 19-11-2008 and restoring their admission to the university only on humanitarian grounds. It does not stand to reason and logic as to why they remained conspicuously silent about the allegations of fraud and forgery in the review applications. Precisely speaking, they did not utter even a single word thereabout in the review applications. This circumstance supports the allegations of fraud and forgery levelled against them.
33. Undeniably the decision of the respondent No.4 dated 27-12-2008 on review affirmed the earlier impugned order dated 19-11-2008. Taking the earlier order dated 19-11-2008 and the subsequent decision dated 27-12-2008 together, it transpires that the earlier order dated 19-11-2008 virtually merged with the subsequent decision of the respondent No.4 dated 27-12-2008. Against this backdrop, they are intertwined and inseparable from each other. After considering the review applications of the petitioners, the university Syndicate undoubtedly made the decision dated 27-12-2008. In such a posture of things, it cannot be said that they were condemned unheard while making the decision on 27-12-2008 affirming the earlier order dated 19-11-2008. As the earlier order dated 19-11-2008 virtually merged with the subsequent decision of the university Syndicate taken on 27-12-2008 on the review applications (Annexure-‘ J’ series), the defect/irregularity/ illegality affecting the order dated 19-11-2008 was cured.
This is more so in view of the strikingly noticeable fact that the petitioners maintained mysterious silence over the allegations of fraud and forgery levelled against them. Regard being had to the peculiar facts and circumstances of the case, the ultimate decision of the Syndicate dated 27-12-2008 upholding the earlier order 19-11-2008 can not be questioned mainly on the ground that the same is presumably predicated upon the HC23 report of the inquiry committee headed by one Professor Dr Md Hazrat Ali.
34. In this respect, the relevant extracts of the inquiry committee appear to be very relevant for our purpose and the same are quoted below verbatim:-
Z`‡šÍ cwijwÿZ nq †h Wzwcø‡KU fwZ© Av‡e`b dig e¨envi K‡i 3903 †ivj bs Gi wecix‡Z †gvt Igi dviæK I 3910 †ivj bs Gi wecix‡Z †gvt Igi dviæK 3910 †ivj bs Gi wecix‡Z †gv gvndzRyi ingvb †K fwZ© Kiv‡bv n‡q‡Q, †hLv‡b dig weZib KwgwUi mfvcwZ cÖ‡dmi m`iæj Avbvg mi`vi Gi ¯^vÿi bKj Kiv n‡q‡Q| D³ Qv·`i D‡jøwLZ †ivj bs Gi wecix‡Z OMR mx‡U Zv‡`i bvg AšÍf~©³ ‡bB| G‡Z cÖZxqgvb n‡q †h, D³ †ivj b¤^‡ii wecix‡Z mswkøó QvÎØq fwZ© cixÿvq AskMÖnb K‡i bvB| †K›`ªxq fwZ© KwgwUi GKRb m¤§vwbZ m`m¨ Ges AÎ wek¦we`¨vj‡qi GKRb eq‰Rô¨ Aa¨vc‡Ki ¯^vÿi bKj Kiv Ges Wzwcø‡KU dig e¨envi K‡i A‰eafv‡e QvÎ fwZ© Kiv‡K ¸iæZi Aciva e‡j KwgwU g‡b K‡i|
D³ QvÎ؇qi m‡›`n hy³ di‡gi mv‡_ †`q †gwW‡Kj wdU‡bm di‡g †WcywU †iwRóªvi (wkÿv) Rbve L›`Kvi †mwjg †iRv Gi ¯^n‡¯Í †iwR‡óªkb b¤^i I ¯^vÿi i‡q‡Q Ges wkÿv kvLvi †mKkb Awdmvi †gvt Avwmd Rvnvb KZ©”K ÒK¨vwkqvi fwZ©i e¨e¯’v wbbÓ evK¨wU wjLv i‡q‡Q| G‡Z D³ Qv·`i fwZ© cÖwµqvq Ab¨vb¨‡`i mv‡_ ‡WcywU †iwRóªvi (wkÿv) Rbve L›`Kvi †mwjg †iRv I †mKkb Zwdmvi †gvt Avwmd Rvnvb m¤ú…³ wQ‡jb e‡j cÖZxqgvb nq| G †ÿ‡Î mswkøó `vqx e¨vw³‡`i `„óvšÍg~jK kvw¯Í nIqv DwPZ e‡j KwgwU g‡b K‡i|Ó
35. It seems that some university functionaries were involved in the perpetration of fraud and forgery as regards the admission of the petitioners to the university and the inquiry committee recommended awarding of exemplary punishment to those functionaries.
36. Article 15(kah) of the mœvZK †Kv‡m©i QvÎ-QvÎx fwZ© Ava¨v‡`k runs as follows:-
ÒfwZ©i mgq cÖ`Ë wg_¨v Z‡_¨i wfwˇZ †Kvb QvÎ/QvÎx‡K wek¦we`¨vj‡q fwZ© Kiv nB‡j Ges cieZx©‡Z Dnv cÖgvwYZ nB‡j D³ fwZ© evwZj ewjqv MY¨ nB‡e|Ó
37. Suffice it to say that the petitioners resorted to fraud and forgery at the time of their so-called admission to the university at their own peril.
38. It appears that Mr MK Rahman had rightly contended that in the case of Zakir Ahmed, there was no controversy about his admission to the Dhaka University and at a subsequent stage, he was expelled there from for misconduct; but in the present case, the very admission of the petitioners is in question. So the footing of the petitioners is quite distinguishable from that of Zakir Ahmed (16 DLR (SC) 722).
39. It goes without saying that had the petitioners actually appeared in the admission test in the academic session-2004 as claimed by them, their names and other particulars would have been certainly mentioned in the OMR sheets (Annexure’3 ‘). The non-mentioning of the same in Annexure’3’ leads us to the only conclusion that they did not apply for admission to the university nor did they sit for the admission test in the academic session-2004. We do not find any earthly reason to take Annexure ‘3’ with a pinch of salt.
40. Section 21 of the General Clauses Act provides for the applicability of the principle of locus penitentiae. ‘ As per that principle, the authority competent to make an order has the power to undo the same; but the order can not be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual Ziauddin vs Pakistan Defence Housing Authority, 1999 PLC 723.
41. In the case of Enamul Huq vs Jatiyo Bishwabiddalay, reported in 59 DLR 556, it has been held referring to certain earlier authorities that the power to add to, amend, vary or rescind available under Section 21 of the General Clauses Act does not include the authority to take away a validly acquired right.
42. Coming back to the instant case, it cannot be said that the petitioners had a validly acquired right. As a matter of fact, by having recourse to fraud and forgery, they got themselves admitted to the university in collusion with some functionaries thereof. This being the position, they cannot capitalize on their fraud and forgery. It is well-settled that fraud vitiates everything and by that reason, they should not be allowed to enjoy its fruit.
43. It is true that the perpetration of fraud and forgery could not be detected at the initial stage and when the same were detected by the inquiry committee, it was found that the petitioners had prosecuted their studies for some years. But even then, as we see it, they cannot take advantage of their misdeeds negativing the operation of the principles of estoppel and acquiescence.
44. In the case of the Unni Krishnan, JP vs State of Andhra Pradesh, reported in AIR 1993 SC 2178 adverted to by Mr Md Ashad Ullah, it has been held that the right to education is implicit in and flows from the right to life guaranteed by Article 21 of the Indian constitution. Since the right to education flows from the right to life, according to Mr Md Ashad Ullah, the petitioners should not be deprived of this fundamental right at this stage as guaranteed by Part-III of our Constitution.
45. We are in respectful agreement with the above ‘ratio’ of the Indian Supreme Court that the right to education is implicit in and flows from the right to life, a fundamental right. But where fraud and forgery are dominant and conclusively proved, Mr Md Ashad Ullah cannot advance any submission suiting the convenience of the petitioners. It is to be borne in mind that fraud and fair-play cannot dwell together-one must exclude the other. The Court stands for fair-play only. Had there been no fraud and forgery as found by the inquiry committee of the university, we would have definitely concurred with Mr Md Ashad Ullah on this Court.
46. According to Mr Md Ashad Ullah, the respondent Nos. 2-5 have annexed the copies of the self-same admission forms and other related matters to their Affidavit-in-Opposition as the petitioners have annexed to the Writ Petition and from this point of view, the impugned order dated 19-11-2008 cannot be sustainable in law.
We have already held that the very admission of the petitioners to the university is the product of fraud and forgery. This Court, or for that matter, any Court of law cannot put a premium on the fraud and forgery committed by the petitioners in collusion with some functionaries of the university.
It has already been found in the inquiry report that the admission forms and other related matters are all spurious documents and accordingly, the inquiry committee came to the definite finding that the petitioners did neither make any applications for admission nor did they sit for the admission test in the academic session-2004. So we are unable to be at one with Mr Md Ashad Ullah.
47. The facts and circumstances of the present case, it transpires, are quite distinguishable from those of the cases of the Principal, Chittagong Medical College vs Shahrayar Murshed, 48 DLR (AD) 33; Bangladesh Steamer Agents Association vs Bangladesh, 33 DLR (AD) 177; Sharwan Kumar vs Director-General of Health Services. AIR 1994 Supreme Court 1448; Amirul Islam vs Government of the People’s Republic of Bangladesh, 1988 BLD (AD) 25; Sanatan Gauda vs Berhampur University, AIR 1990 Supreme Court 1075; Ashok Chand Singhvi vs University of Jodhpur; AIR 1989 Supreme Court 823 and Randir Singh vs State of Rajasthan, 1992(2) ESC 435 (Raj). Against this backdrop, those decisions have no manner of application to the instant case. In the facts and circumstances of the case, we hold that the petitioners have come up with the Writ Petition with unclean hands.
48. In the light of the discussions made above, we have no hesitation in holding that there is no merit in the Rule. The Rule, therefore, fails.
Accordingly, the Rule is discharged without any order as to costs.