Legal protection to acquired vested right

High Court Division
(Special Original Jurisdiction)
Quazi Reza-ul-Hoque J
ABM Altaf Hossain J
Nazirul Islam (Md) …………….Petitioner
Government of
…………..Bangladesh
……… Respondents*
Judgment
July 11th , 2013
Constitution of Bangladesh, 1972
Article 27 and 102(2)
“Paripatra” seeks to serve a purpose which would help in achieving benefit of the government teacher training college and must be treated as a positive discrimination. We are unable to appreciate as to what is the purpose sought to be achieved by the “Pariptra” to changed the terms of the affiliation letter, which unduly restricts the rights of the petitioners. . ….. (32)
Sehmidt vs Secretary of Home Affairs (1969) 1 All ER 904; Ridge v Baldwin; Council of Civil Service Unions vs Minister for the Civil Services (“GCHQ”), 3 All. ER 935; R vs North and East Devon Health Authority ex p Coughlan [2001] QB 213; Rand Abdi v Secretary of State for the Home Department [2005] EWCA Civ 2363; R (Bhatt Murphy) vs Secretary for the Home Department [2008] EWCA Civ 755; Navjyoti Coop. Group Housing Society vs Union of India (1992) 4 SCC 477; Union of India vs Hindustan Development Corporation (1993) 3 SCC 499; Sethi Auto Service Station vs Delhi Development Authority (2009) 1 sec 180; Golam Mostafa vs Bangladesh 2007 (XV) BLT (HCD) 128; AKM Kawser Ahmed vs Bangladesh, 65 DLR 277; BTMC vs Nasiruddin Chowdhury, 5 BLC (AD) 144 ref. Yusuf Hossain Humayun with Mohammed Shafiqur Rnhman, Advocates-For the Petitioners.
Biswojit Roy, Deputy Attorney-General with Md Jahangir Alam, Assistant Attorney-General and Swarup Kanti Deb, AAG-For the Respondents.
Judgment
ABM Altaf Hossain J: The Rule under adjudication, issued on 26-7-2009, was in the following terms:
“Let a Rule be issued calling upon the respondents to show cause as to why the Government Circular purportedly issued by the Ministry of Education Vide Memo No. Shirn/Sha: 11/19-2/(MPO)/2007/757, dated 15-5-2008, so far it relates to imposition of discriminatory embargo making it compulsory for every non BED Secondary School, Teachers, to obtain BED training only from the Government Teachers Training Colleges (Annexure-D) and government decision purportedly taken by the Ministry of Education in its meeting dated 4-1-2009, so far it relates to direction to the Vice-Chancellor, National University, to cancel affiliation of 38 colleges marked as red (Annexure-F), shall not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper”.
2. The averment figured in the petition generating in brief:
The National University (in brief “the University”) has been established under the National University Act 1992(Act 37 of 1992), by its provisions, the University performing supervisory and regulatory function allover the colleges and institutions of the Country, and there are provisions in the Act of 37 of 1992 that Teachers Training colleges (in brief “TTCs”) will be affiliated by the University, and their affiliation will be renewed yearly in accordance with the law. The petitioners’ TTCs obtained temporary affiliation in the year 2006, and subsequently, renewed its affiliation in due course of time. After affiliation from the University, the TTCs started to admit students in accordance with the prevailing law of the University, and there are number of students already got admission and have secured good results in the past B. Ed Examinations. It is stated that the University policy is to be increased the percentage of trained teachers in order to maintain the standards of the educational institutes. In order to maintaining the standards of the teachers of the Country, the University has increased students by establishing the TTCs and they are running their functions very smoothly. Before affiliation of TTCs, there were only 10 Government Teachers Training Colleges in the Country, which were insufficient to coup with increasing demands of the day, and, as such, considering the necessity and viability of the Act of 1992 the University affiliated and recognised Private TTCs in the Country to coup up the demands of the day.
3. There are 105 private TTCs imparting the BED course and the Private TTCs are giving BEd training up to 75% of the total Teachers each year. The syllabus, teaching methods and examinations systems are being done by the University, and there is no separate academic curriculum for the TTCs. All on a sudden, 15-5-2008, a Circular purportedly issued by the Ministry of Education Vide Memo No. Shim Sha 11/19-2(MPO)/2007/757, dated 15-5-2008, made it compulsory for every non-BEd Secondary school Teachers’ to obtain BEd training only from the Government Teachers Training colleges, and publishing a discriminatory list of 38 colleges marking as red 17, colleges as green, 15 colleges as yellow, 31 colleges as grey and, thereby barring hundreds of Private TTC around the Country to admit B Ed students. It is stated that Private Teachers Training Colleges Association made representation to the respondents, requesting to withdraw and/or cancel the impugned circular dated 155-2008, but respondents did not make any response on it whatsoever. The petitioner being aggrieved by and dissatisfied with the decisions of the respondents preferred the instant writ petition and obtained the present Rule.
4. Mr Yousuf Hossain Humayun with Md Shafiqur Rahman, the learned Counsels appearing on behalf of the petitioners, while Mr Biswajit Roy, the learned Deputy AttorneyGeneral appearing on behalf of the respondents .
5. Mr Yousuf Hossain Humayun, the learned Counsel for the petitioners submits that by the impugned order, the respondents directing the National University to cancel affiliation of 38 Private Teachers Training Colleges is discriminatory, and nauseating violation of Article 27 of the Constitution of the People’s Republic of Bangladesh guaranteed as fundamental rights to the petitioners.
6. Mr Humayun further submits that no opportunity of being heard was ever given to the petitioners before taking such illegal andmala fide decisions and as much every TTC was entitled to have a chance of a reasonable opportunity of being heard and to make effective representation. Further to that he submits that it is enshrined in the Constitution of the People’s Republic of Bangladesh that to enjoy the protection of the law, and to be treated in accordance with law, is the inalienable right of every citizen. Every person for the time being within Bangladesh and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except
in accordance with law, and as such every authority is law bound to afford an opportunity of being heard, but in this case it was not done, which in violation of Article 31 of the Constitution as well as the principle of natural justice. He prays for making the Rule absolute.
7. Mr Biswajit Roy, the learned Deputy Attorney-General (briefly “DAG”) with Mr. Shawrup Kumar Deb, the learned Assistant Attorney-General appeared on behalf of the respondents without filing any affidavit-in opposition. Mr Roy, the learned DAG submits that the respondents, have rightly issued the impugned notification and the instant Rule is liable to be discharged.
8. At the time of hearing, we have considered the submissions of learned Counsels for the petitioners and the learned Deputy Attorney-General and also perused the substantive writ Petition along with others material on records.
9. In order to attain a proper adjudication, we would first consider the issue of legitimate expectation, so far it relates to Annexure- “D” to the writ petition.
10. The doctrine of legitimate expectation imposes in spirit a duty on public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation.
11. The doctrine of legitimate expectation has been judicially recognized by the Apex Court of the different jurisdictions in Commonwealth Countries and this recognition has paved the way for the development of a broader and more flexible doctrine of fairness.
12. In the Common law jurisdiction the doctrine had been traced to an obiter dictum of Lord Denning MR in Sehmidt vs Secretary of Home Affairs reported in (1969) 1 All ER 904. Lord Denning observed in Sebmidt:
“The speeches in Ridge v Baldwin show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say …. ”
13. The model elucidation of legitimate expectation appears from the speech of Lord Fraser in Council of Civil Service Unions vs Minister for the Civil Services (“GCHQ”), reported in 3 All. ER 935, wherein it was held that:
“Legitimate, or reasonable, expectation may arise either from an express promise given on behalf of a public authority or from the existence of a regular practice which the claimant can reasonably expect to continue”.
14. The governing principles are to be found in the decision of the Court of Appeal in R v North and East Devon Health Authority ex p Coughlan [2001] QB 213. At paragraph 57 of Coughlan three categories of case were identified:
a. Those where the public authority was only required to bear in mind its previous policy giving weight, but no more, if it thinks right to the promise before deciding to change course.
b. Those where the promise is of consultation before a particular course is adopted.
c. Those where the promise has induced a legitimate expectation of a benefit which is substantive.
15. In the first category of case the Court of Appeal held that it could only intervene on traditional Wednesbury [1948] lKB 223, sense. In the second category of case the consultation has to be given unless there is an overriding reason to resile from the promise. Here the Court judges what fairness requires. In the third category of case the Court will require the promise to be performed if to frustrate the promise is so unfair as to amount to an abuse of power. The Court weighs up the requirements of fairness against any overriding interest relied upon for the change of policy.
16. In R (on the application of Nadarajah) and Abdi vs Secretary of State for the Home Department [2005] EWCA Civ 2363, the Court of Appeal after reviewing the authorities suggested that the applicable test was as follows:
“The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances.”
17. The Court of Appeal went on to state, at paragraph 69:
“Proportionality will be judged, as it is generally to be judged, by the respective force of the competing interests arising in this case. Thus where the representation relied on amounts to an unambiguous promise; where there is detrimental reliance, where the promise is made to an individual or a specific group; these are instances where denial of the expectation is likely to be harder to justify as a proportionate factor”.
18. There is a recent and significant decision of the Court of Appeal in R (Bhatt Murphy) vs Secretary for the Home Department [2008] EWCA Civ 755, wherein it was held that:-
“The power of public authorities to change policy is constrained by the legal duty to be fair (and other constraints which the law imposes). A change of policy which would otherwise be legally unexceptionable may be held unfair by reason of prior action, or inaction, by the authority”.
19. In Navjyoti Coop. Croup Housing Society vs Union of India (1992) 4 SCC 477, the Supreme Court recognized that by reason of application of the said doctrine, an aggrieved party would be entitled to seek judicial review (Id. At 494),
“if he could show that a decision of the public authority affected him of some benefit or advantage which in the past he had been permitted to enjoy and which he legitimately expected to be permitted to continue to enjoy either until he was given reasons for withdrawal and the opportunity to comment such reasons”.
20. A total stranger unconnected with the authority or a person who had no previous dealings with the authority and who has not entered into any transaction or negotiations with the authority, cannot invoke the doctrine of legitimate expectation, merely on the ground that the authority has a general obligation to act fairly”.
21. The Supreme Court referred to its earlier decision in Union of India vs Hindustan Development Corporation (1993) 3 SCC 499, wherein the Court has, inter-alia, held: –
“It is generally agreed that legitimate expectation gives the applicant sufficient locus standi for judicial review and that the doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken”.
22. Very recently in case of Sethi Auto Service Station vs Delhi Development Authority (2009) 1 SCC 180, it has been reiterated that:
“32 ……….that the golden thread running through all these decisions is that a case for applicability of the doctrine of legitimate expression, now accepted in the subjective sense as part of our legal jurisprudence, arises when an administrative body by reason of a representation or by past practice or conduct aroused an expectation which it would be within its powers to fulfil unless some overriding public interest comes in the way”.
23. In Golam Mostafa vs Bangladesh 2007 (XV) BLT (HCD) 128, it was observed that:
“The upshot of the decisions noted above are that judicial review may be allowed on the plea of frustration of legitimate expectation in the following situations:
i)If there is a promise by the authority, expressed either by their representations or by conducts.
ii) The decision of the authority was arbitrary or unreasonable within the Wednesbury principal.
iii) There was a failure on the part of the concerned authority to act fairly in taking the decision.
iv) The expectation to be crystallized into a legitimate one, it must be based on clear facts and circumstances leading to a definite expectation and not a mere anticipation or a wish or hope and also must be reasonable in the circumstances”.
24. In AKM Kawser Ahmed vs Bangladesh, 65 DLR 277, wherein it was observed that:
“67. The potentially important point is that change of policy should not violate the substantive legislative expectation and if does so it must be as the change of policy which is necessary and such a change is not irrational or perverse”.
25. In BTMC vs Nasiruddin Chowdhury cited in 5 BLC (AD) 144, the Apex in a detailed discussion accepted the position that a legitimate expectation cannot be defeated by the executive action unless public interest clearly requires negation of such expectation, but at the same time found that such an expectation can be given effect to by the court only when the facts of the case clearly and unambiguously give rise to such an expectation.
26. In view of the above extracted principle of legitimate expectation the particular manifestation of the duty to act fairly is that part of the recent evolution of administrative law which may enable an aggrieved party to evoke judicial review if he can show that he had ‘a reasonable .expectation’ of some occurrence or action preceding the decision complained of and that reasonable expectation was not fulfilled in the event.
27. We now proceed to ‘examine that the present case, mainly annexure-“D” in light of the above extracted principle and relevant law.
28. After hearing the learned counsels for the parties, it is emerged that the University has been duly affiliated some 38 TTCs for 2006-2007 academic years and subsequently the affiliation was renewed by the University. It is apparent from Annexure-” A” to the writ petition that on 6-6-2006 after availing all formalities, e.g. by the approval of the Vice Chancellor, the Affiliation Committee, the Syndicate and Academic Council 38 private Teachers Training Colleges were established. It also appears from the Annexure-” AI” that as per terms of the affiliation, the University renewed the temporary affiliation in due course of time. Afterward, the TTCs of the petitioners were maintaining the highest level of standards and ensuring the training for the school teachers at their level best. Admittedly, the number of students already got admission and secured good result in the past B.Ed examinations.
29. In the case of the petitioners, when they obtained affiliation from the University, there were certain terms and conditions stipulated in the affiliation letter dated 6-6-2009. The petitioners started keeping in view of the future prospects of the colleges on the basis of terms and condition of affiliation letter. To the change and/ or stop the affiliation cannot be put under “Paripatra” dated 15-5-2008, which has changed the conditions of affiliation and altered the advantage of the students of the TTCs.
30. The doctrine of legitimate expectation provides that the statements of policy or intention of the Government or its Department in administering its affairs should be without abuse or discretion. The change of law and or /Rule could not be disregarded unfairly or applied selectively for the reason that unfairness in the form of unreasonableness is parallel to violation of natural justice. It means that said actions have to be in conformity of Article 27 of the Constitution of the Peoples’ Republic of Bangladesh, of which non-arbitrariness is a second facet. Public Authority cannot claim to have unfettered discretion in public law as the authority is conferred with power only to use them for public good. Generally legitimate expectation is essentially procedural in character as it gives assurance of fair play in administrative action, but it may in a given case be enforced as a substantive right. But a person claiming it has to satisfy the Court that his rights had been altered by enforcing a right in private law or he has been deprived of some benefit or, advantage which he was having in the past and which he could legitimately expect to be permitted to continue unless it is withdrawn on some rational ground or he has received assurance from the decision making Authority which is not fulfilled.
31. It is evident from Annexure-“B” to the writ petition that there are good numbers of students those who have been secured satisfactory result in the past BEd examinations. Even it appears from the annexure-“C” to the writ petition that private TTCs are giving BEd training up to 75% of the total teachers of Secondary School levels per year. It is pertinent to be mentioned here that the syllabus, curriculum, examinations system and method of teaching are same in the vein of public teachers training Colleges. Prior to issuance the impugned “Pariparta”, the private TTCs were government by the Rules of the University. This practice had been in mode/trend for a numbers of years and it can be said that the expectation of the petitioners that TTCs would be permanent in near future.
32. While we have closely scrutinized annexures, we found that there was no prior notice or warning given to the petitioners in this regard. Even the respondents utterly failed to explain the necessity and/or public interest to change the terms and conditions of the affiliation letter. The aforesaid expectation cannot be termed or being based on sporadic or casual or random acts of the respondents, or as an unreasonable or illogical or invalid expectation. This expectation can be said to have arisen in the mind of the petitioners in the normal course, in view of the consistent past practice of the respondents as reflected in the” affiliation letter dated 6-8-2006″. In our view, this expectation was legitimately entertained by the petitioners and acquired vested right in the matter of continuing the TTCs. It is for the decision maker to justify its decision to change the policy in the manner it did, by showing overriding public interest. But in the present case, the respondent failed to do so. Therefore, we have no difficulty in concluding that the “Paripatra” seeks to serve a purpose which would help in achieving benefit of the government teacher training college and must be treated as a positive discrimination. We are unable to appreciate as to what is the purpose sought to be achieved by the “Pariptra” to changed the terms of the affiliation letter, which unduly restricts the rights of the petitioners.
33. Pertinently the respondents have not disclosed, either by filling an affidavit in opposition or even by making submissions before us as to what is the justification for changing the terms and conditions of affiliation of the petitioners. The provision of the “Paripatra” contains restriction upon the TTCs, by making compulsory for every non B.Ed. Secondary School Teachers’ both the government and Non-Government to obtain B Ed. training only from Government Teachers Training Colleges (Annexure-“D”). We are in the view that in terms of the petitioners’ legitimate expectation extracted from the above mentioned ratio of the decisions, the restriction introduced by the impugned “Paripatra”, dated 15-5-2008 (Annexure-D”) is ultra vires the Constitution and also discriminatory as it offend Articles 27 of the Constitution of the People’s Republic of Bangladesh.
34. In terms of the Annexure-“F”, it appears that it is a mere recommendation by the Ministry of Education and it has no mandatory force at all. In this regard, we are of the view that since it has no binding force to implement upon the University, this impugned recommending (Annexure-“F”) is premature.
35. Having regards to the discussions made in above, the Rule is made absolute in part.
36. In the result, the Rule is made absolute in part. Therefore, the Government Circular purportedly issued by the Ministry of Education Vide Memo No. Shim/Sha: 11/19-2/ (MPO)/2007/757 dated 15-5-2008, so far it relates to imposition of discriminatory embargo making it compulsory for every non BED Secondary School Teachers, to obtain BED Training only from the Government Teachers Training Colleges (annexure-‘D’) is hereby declared to have been passed without law authority and to be of no legal effect and government decision purportedly taken by the Ministry of Education in its meeting dated 4-1-2009, so far it relates to direction to the Vice Chancellor, National University, to cancel affiliation of 38 colleges marked as red (annexure ‘F’) is hereby discharged.
There is no order as to costs.