Upazila Nirbahi Officer Vs. ASM Harunar Rashid and others, 2009, 38 CLC (AD)

Saturday, 12 September 2009 15:08

Written by Md. Ershadul Karim

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Supreme Court

Appellate Division

(Civil)

Present:

M.M. Ruhul Amin CJ

Md. Tafazzul Islam J

Md. Abdul Matin J

Md. Abdul Aziz J

Upazila Nirbahi Officer.......................Appellant

Vs.

ASM Harunar Rashid and others................Respondents

Judgment

April 22, 2009.

Cases Referred To-

Mofizul Huq vs Mofizur Rahman 48 DLR (AD) 121 & Noor-e-Alam vs Bangladesh, 60 DLR (AD) 12.

Lawyers Involved:

Abdur Razzaq, Senior Advocate, instructed by AKM Shahidul Huq, Advocate-on-Record—For the Appellant.

Khurshid Alam Khan, Advocate, instructed by Md Wahidullah, Advocate-on-Record—For Respondent No. 1.

Not represented—Respondent Nos. 2-6.

Civil Appeal No. 79 of 2006.

(From the judgment and order dated 10-7-2005 passed by the High Court Division in Writ Petition No. 4609 of 2003).

Judgment

Md. Tafazzul Islam J.- This appeal, by leave, is directed against the judgment and order dated 10-7-2005 of the High Court Division passed in Writ Petition No. 4609 of 2003 making the Rule absolute with a direction upon the petitioner to allow the respondent No.1 to resume his duties as the Principal of Shahebabad Islamia Senior Fazil Madrassa within two weeks from the date of receipt of the copy of the judgment.

2. The respondent No.1 filed the above writ petition challenging the Memo No. 567(10) dated 28-5-2003 issued by the appellant in the capacity of Chairman of the Governing Body of Shahebabad Islamia Senior Fazil Madrassa, Brahmanpara, Comilla, dismissing him from the post of Principal of the above Madrassa on the averments that he was absent in the above Madrassa for a few days for the want of his safety and security and during that time Mr. Md. Sayeedur Rahman, the Vice Principal of the above Madrassa, was in charge as the Principal and subsequently being directed to function as Principal of the said Madrassa vide Memo No. 750(7) dated 26-10-2002 issued under signature of appellant, he took over the charge of Principal and started functioning but in the first week of July, 2003, he came to know that he has been discharged from the post of Principal then he, on going to the Office of the Deputy Commissioner, Comilla, collected the copy of the Memo No. 576(1) dated 28-5-2003 purportedly under the signature of the appellant discharging him from the post of Principal and that although the appellant did all these things in the name of the Governing Body of the Madrassa but, in fact, no regular Governing Body of the Madrassa was in existence at the time of his discharge as long before, by order dated 13-6-2002 a copy of which was also served upon him, the Registrar of the Bangladesh Madrassa Education Board dissolved the then Governing Body of the Madrassa and directed him for taking initiative to form an Ad-hoc Committee for running of the affairs of the above Madrassa and challenging the said order dated 13-6-2002 one Abdul Halim, a member of the dissolved Governing Body, filed Title Suit No. 18 of 2002 in the Court of Assistant Judge, Brahmanpara, Comilla with a prayer for an order of temporary injunction along with an order of ad-interim injunction and by order dated 15-4-2003 the order of ad-interim injunction, as sought, was granted but however, after hearing, the application for temporary injunction was rejected and then, in pursuance of the aforesaid order of the Registrar of the Madrasa Board, he took initiatives to form an Ad-hoc Committee for the above Madrasa and accordingly, for the said Ad-hoc Committee Alhaj Md. Mosharraf Hossain Bhuiyan was nominated as the guardian member, Md. Tajul Islam was nominated as Teacher Representative by the Director General of the Department of Secondary and Higher Secondary Education and Md. Abul Kashem as person interested in education by the Chairman of the Madrasa Board and that the appellant, as Upazila Nirbahi Officer, and he, as Principal, respectively became the Ex-officio Chairman and Member of the said Ad-hoc Committee and that the contents of Annexures-E, F and G series will show that the Governing Body of the Madrasa was dissolved and an Ad-hoc Committee was formed but in spite of that the appellant passed the impugned order dated 13-6-1983 as Chairman of the Governing Body which was no more in existence on 28-5-2003 when order of his discharge was passed and further the appellant passed the impugned order without consulting the members of the Ad-hoc Committee which at the relevant time was entrusted with the functions of looking after the affairs of the above Madrasa and the impugned order is also totally arbitrary and malafide because as will be evident from the Annexures-B, C and D series, the appellant just within 19 days, hurriedly completed the proceeding to discharge him from the post of Principal.

3. The High Court Division, after hearing, made the Rule absolute.

4. We have heard the learned Counsels perused the impugned judgment and order of the High Court Division and also other connected papers.

5. As it appears the respondent No.1 filed the above writ petition challenging the order dated 28-5-2003 passed by the appellant in the capacity of Chairman of the Governing Body of Shahebabad Islamia Senior Fazil Madrasa, Brahmanpara, Comilla which is not a statutory body or a local authority. In the case of Mofizul Huq vs. Mofizur Rahman 48 DLR (AD) 121, this Division held that though it is true that the school (Sammilani Girls High School, Village Boalpur, PS Morelganj, District Bager-hat on which the appellant was a teacher) like any other non-government secondary school is regulated and managed in accordance with the provisions of the Ordinance of 1961 and the various regulations made thereunder and the Government have control over these schools in a very large measure but nevertheless a recognised non-Government secondary school does neither become a statutory body nor a local authority' within the meaning of the General Clauses Act, Referring to the above decision, this Division, in the case Noor-e-Alam vs. Bangladesh, 60 DLR (AD) 12, held that Rifles Public School and College though governed by the provisions of Board of Regulation 1977 but it does not necessarily follow that the said institution is a creature of the said Ordinance and that Rifles Public School and College, being regulated and managed in accordance with the provisions of the Board of Intermediate and Secondary Education, Dhaka (Managing Committee of the Recognised Non-Government Secondary Schools) Regulation, 1977 and other provisions and regulations, is not a statutory body or local authority and the impugned order has not been passed by any statutory body or local authority.

6. Further in the present case the appellant passed the impugned order not in the capacity of Upazilla Nirbahi Officer, Brahmanpara, Comilla but in the capacity as President of the Governing Body of Shahebabad Islamia Senior Fazil Madrasa, Brahmanpara, Comilla and accordingly no writ does lie against the impugned order dated 28-5-2003 as the same has not been passed by any statutory body or local authority.

Accordingly, the appeal is allowed without any order as to costs. The judgment and order dated 10-7-2005 passed in Writ Petition No. 4609 of 2003 is set aside.

Ed.

This Case is also Reported in: 14 BLC (AD) (2009) 92.