Making and undoing official order

High Court Division(Special Original Jurisdiction) Moyeenul IslamChowdhury JNaima Haider J Mahfuzur Rahman and another. ………..Petitioners vsGovernment of Bangladesh and others …. Respondents*JudgmentDecember 9th, 2010. General Clauses Act (X of 1897) Section 21 The authority competent to make an order has the power to undo the same; but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual. ….. (40) University of Dhaka vs Zakir Ahmed, 16 DLR 722; 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 (SC) 1448; Amirul Islam vs Government of the People’s Republic of Bangladesh, 8 BLD (AD) 25=40 DLR (AD) 52; Sanatan Gauda vs Berhampur University, AIR 1990 SC 1075; Ashok Chand Singhvi vs University of Jodhpur, AIR 1989 SC 823; Randir Singh vs State of Rajasthan, 1992(2) ESC 435 (Raj); Lord Atkin in R vs Electricity Commissioners, (1924) 1 KB 171; Ridge vs Baldwan 1964 AC 40; Council of Civil Service Union vs Minister for the Civil Service (1984) 3 All ER 935; Swadeshi Cotton Mills vs India, AIR 1981 SC 818; Ziauddin vs Pakistan Defence Housing Authority, 1999 PLC 723; Enamul Huq (Md) vs Jatiyo Bishwabiddaloy, 59 DLR 556 and Unni Krishnan, JP vs State of Andhra Pradesh, AIR 1993 SC 2178 ref. Md Ashad Ullah with Khaleda Sultana Noor Advocates-For the Petitioners. Korzmamoy Chakma, Deputy Attorney-General with Nazibur Rahman, Assistant Attorney-General-For the Respondent No.1. MK Rahman with AKM Asiful Haque, Advocates For the Respondents No.1.MK Rahmanw ith AKM Asiful Haque, Advocates- For the Respondent Nos. 2-5. Judgment Moyeenul Islam Chowdhury J: A Rule Nisi was issued calling upon the respondents to show cause as to why the impugned order of the respondent No.2 communicated under the signature of the’ respondent No. 5 vide Memo No. †kK…we/wmt 35Zg (ev¯Ít) cÖt/08/731(2) dated 19-11-2008 (Annexure-‘1’) cancelling the admission of the petitioners from Sher-e-Bangla Agricultural University, Dhaka should not be declared to be without lawful authority and of no legal effect and why the respondent Nos. 2-5 should not be directed to re-admit the petitioners and allow them to prosecute their studies in their respective Levels and Semesters of BSc Agriculture (Hons.) in the Faculty of Agriculture of the said Agricultural University. 2. Subsequently, a further Rule Nisi was issued calling upon the respondents to show cause as to why the decision of the respondent No.4 dated 27-12-2008, so far as it relates to the petitioners, should not be declared to be without lawful authority and of no legal effect. 3. It has been stated in the Writ Petition that having prescribed qualifications for admission to B Sc Agriculture (Hons.) Level-1, Semester-1, Faculty of Agriculture, Sher-e-Bangla Agricultural University, Dhaka, the petitioners collected Admission Forms being Form Nos. 3910 and 3903 from the office of the university for admission in the academic session-2004, filled up the Admission Forms and submitted the same to the university authority. After scrutiny, everything was found all right and they duly appeared in the Admission Test in the academic session 2004. As per mœvZK †Kv‡m©i QvÎ-QvÎx fwZ© Aa¨v‡`k, they were found eligible for admission. The university by its Memo No. 953 dated 21-3-2004 published the result of the Admission Test. Having been qualified in the Admission Test, the petitioners were admitted to their respective courses. After admission they started prosecuting their studies in BSc Agriculture (Hons.), Level-1, Semester-l in the Faculty of Agriculture in the academic session 2004. Anyway, at one stage, there was a hue and cry about illegal admission of some students including· the petitioners to the university in that academic session and a news item was accordingly published in this regard in different newspapers. Ultimately a sixmember committee was formed by the university authority to inquire into the allegation of illegal admission of the students to the university in the academic session-2004. On the basis of the inquiry ‘report, an order was served upon the petitioners under the signature of the respondent No. 5 and communicated by Memo No. †kK…we/wmt 35Zg (ev¯ÍÍt) cÖt/08/731(2) dated 19-11-2008 cancelling their admission from the university. They were not afforded any opportunity of being heard prior to cancellation of their admission. As a matter of fact, they were condemned unheard. So the impugned order dated 19-11-2008 is without lawful authority. On receipt of the impugned order dated 19-11-2008, the petitioners examined the resolution of the Syndicate dated 1-11-2008 taken in its 35th Meeting from the office of the respondent No.5 and came to know about the reasons for cancellation of their admission to the university. Thereafter, the petitioners made review applications to the authority concerned for review of the impugned order dated 1911-2008 and to allow them to prosecute their studies in the university. But the Syndicate rejected their review applications in its meeting held on 27-12-2008 affirming the earlier order dated 19-11-2008. The decision of the Syndicate dated 27-12-2008 is of no legal effect. 4. The respondent Nos. 2-5 have contested the Rule by filing a joint affidavit-in-Opposition. It has been stated therein that the Writ Petition is misconceived and the same has been filed by suppressing material facts. The petitioners never applied for admission and sat for the admission test for the academic session-2004. By having recourse to fraud and forgery, they succeeded in getting themselves admitted to BSC, Agriculture (Hons.) course in the Faculty of Agriculture of the university. At the time of their admission, the alamats of fraud and forgery could not be detected. Anyway, a six-member inquiry committee was formed to probe into the allegations of fraud and forgery levelled against the petitioners in the matter of their admission to the university. The inquiry committee inquired into the allegations and ultimately submitted a report to the authority in the month of November, 2007. According to the report of the inquiry committee, the petitioners were fake students and they got themselves admitted to the university in the academic session-2004 through backstage maneuvers and underhand means and accordingly it recommended the cancellation of their admission from the university. Furthermore, the names of the petitioners were not recorded in the Optical Mark Reader (OMR) sheets of the university for the said academic session-2004. The non-mentioning of their names in the OMR sheets indicates that they did not sit for the admission test in order to qualify for admission to the university. The Writ Petition has been brought on some false and frivolous allegations. The impugned order dated 19-11-2008 cancelling the admission of the petitioners from the university and the subsequent decision of the respondent No. 4 dated 27-12-2008 affirming the earlier order dated 19-11-2008 are legal and valid. That being so, no exception can be taken thereto. 5. In the supplementary-affidavit dated 26-7-2010 filed on behalf of the petitioners, it has been mentioned that the university authority is stopped from cancelling the admission of the petitioners in the facts and circumstances of the case and their review applications were rejected without assigning any reason whatsoever. The principle of acquiescence comes into play in this case too. That being so, the university authority committed gross illegalities in cancelling the admission of the petitioner on.. 19-11-2008 and subsequently affirming the same on 27-12-2008. 6. The photocopies of the relevant OMR sheets have been annexed to the Supplementary Affidavit-in-Opposition dated 12-8-2010 fileds on behalf of the respondent Nos. 2-5. 7. In the affidavit-in-reply dated 26-9-2010 filed on behalf of the petitioners, it has been stated that the petitioners have filed the Writ Petition in order to vindicate their legal right and they have not suppressed any material facts in filing the same. As the petitioners were admitted to the university and as they prosecuted their studies for years together, their admission cannot be cancelled in view of the principle of ‘locus penitentiae’ as contemplated by Section 21 of the General Clauses Act. It is not understood as to why the names of the petitioners did not find place in the OMR sheets and in that view of the matter, the same does not appear to be genuine. 8. At the outset, Mr Md Ashad Ullah, the learned Advocate appearing on behalf of the petitioners, submits that it is an indisputable fact that the impugned order dated 19-11-2008 cancelling the admission of the petitioners from the university was made without affording them any opportunity of being heard and in his perspective, the said impugned order is violative of the principle of natural justice and hence the same is without lawful authority. 9. Mr Md Ashad Ullah further submits that admittedly the petitioners having been admitted to the university prosecuted their studies for years together and at the time of their admission, the university authority did not raise any objection; but after a considerable lapse of time, an inquiry committee was constituted behind their back and suddenly their admission was cancelled by the impugned order dated 19-11-2008 and since their admission was already acted upon, the university authority can not cancel the same by the impugned order dated 19-11-2008 on the principle of ‘locus penitentiae’ as provided by Section 21 of the General Clauses Act. 10. Mr Md Ashad Ullah next submits that in the facts and circumstances of the case, the principles of estoppel and acquiescence hold the filed and, as such, the university authority is estopped from cancelling the admission of the petitioners from the university. 11. Mr Md Ashad Ullah also submits that it is the case of the respondent Nos. 2-5 that the petitioners got themselves admitted to the university by resorting to alleged fraud and forgery; but the fact remains that the same have not been specified or spelt out in the affidavit-in-opposition and some bare statements thereabout in the Affidavit-in-Opposition will not suffice. 12. Mr Md Ashad Ullah further submits that right to education is implicit in and flows from the right to life guaranteed by Part 1I1 of the Constitution and from this standpoint, the petitioners can not be deprived of this fundamental right particularly when they prosecuted their studies for a considerable length of time in the university. 13. Mr Md Ashad Ullah next submits that the admission of the petitioners to the university is a fait accompli’ and in all fairness, the university Syndicate should have allowed their review applications rescinding the earlier order dated 19-11-2008. 14. In Support of the above submissions, Mr Md Ashad Ullah relies on the decisions in the cases of the University of Dhaka vs Zakir Ahmed, 16 DLR 722; 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 (SC) 1448; Amirul Islam vs Government of the People’s Republic of Bangladesh, 1988 BLD (AD) 25; Unni Krishnan, JP vs State of Andhra Pradesh, AIR 1993 SC 2178; Sanatan Gauda vs Berhampur University, AIR 1990 SC 1075; Ashok Chand Singhvi vs University of Jodhpur, AIR 1989 SC 823 and Randir Singh vs State of Rajasthan, 1992(2) ESC 435 (Raj). 15. Per contra, Mr MK Rahman the learned Advocate appearing on behalf of the respondent Nos. 2-5, submits that it is in the inquiry report that the petitioners got themselves admitted to the university by resorting to fraud and forgery and the same could not be detected at the initial stage; but in the long run it was detected by the six-member inquiry committee headed by Professor Dr Md Hazrat Ali, Dean of the Faculty of Agriculture of the university and on the basis of the report of the inquiry committee, the university authority issued the impugned order dated 19-11-2008 cancelling the admission of the petitioners from the university, though he concedes that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19-11-2008. 16. Mr MK Rahman also submits that since no legal right accrued to the petitioners, there was no question of applicability of the principle of ‘Audi Alteram Partem’ as to the cancellation of the admission of the petitioners from the university. 17. Mr MK Rahman next submits that the decision in the case of the University of Dhaka vs Zakir Ahmed reported in 16 DLR 722 has no manner of application to the facts and circumstances of the instant case inasmuch as admittedly Zakir Ahmed was student of the Dhaka University and his expulsion there from was challenged before the then East Pakistan High Court and eventually Zakir Ahmed succeeded up the to the Pakistan Supreme Court; but in the instant case, the very admission of the petitioners to the Sher-e-Bangla Agricultural University is under challenge and from this angle, it can not be said that the petitioners and Zakir Ahmed stand on the same footing and that being so, Zakir Ahmed’s case will not be of any avail to the petitioners. 14. Mr MK Rahman also submits that had the petitioners really sat for the admission test, their names and other particulars would have been definitively mentioned in the OMR sheets and as the OMR sheets do not contain the same, it leaves no room for doubt that they got themselves admitted to the university by resorting to fraud and forgery and those were proved during the inquiry held by the six-member inquiry committee. 19. Mr MK Rahman lastly submits that in the given facts and circumstances of the case, it is crystal clear that the petitioners have come up with the present Writ Petition with unclean hands and, as such” they can not get any relief from this Court. 20. Mr Korunamoy Chakma, the learned Deputy Attorney-General appearing for the respondent No. I, adopts the submissions advanced by Mr MK Rahman. 21. We have heard the submissions of Mr Md Ashad Ullah and the counter-submissions of Mr M K Rahman and perused the Writ Petition, affidavit-in-opposition, Supplementary affidavit-in-opposition, supplementary-affidavit, affidavit-in-reply and the relevant Annexures annexed thereto. 22. It is undisputed that the impugned order dated 19-11-2008 cancelling the admission of the petitioners from the university (Annexure-‘I’) was issued without affording them any opportunity of being heard. In other words, it is an admitted fact that the principle of ‘Audi Alteram Partem’ was not adhered to prior to issuance of the said order dated 19-11-2008. What we are driving at boils down to this: the impugned order dated 19-11-2008 was passed behind the back of the petitioners. 23. The moot question in this case is whether the impugned order dated 19-11-2008 cancelling the admission of the petitioners from the university is without lawful authority and of no legal effect for not adhering to the principle of ‘Audi Alteram Partem’. 24. The principles of natural justice are applied to administrative process to ensure procedural fairness and to free it from arbitrary-ness. Violation of these principles results in jurisdictional errors. Thus in a sense, violation of these principles constitutes procedural ultra vires. It is, however, impossible to give an exact connotation of these principles as its contents are flexible and variable depending on the circumstances of each case, i.e., the nature of the function of the public functionary, the Rules under which he has to act and the subject-matter he has to deal with. These principles are classified into two categories-(i) a man can not be condemned unheard (audi alteram partem) and (ii) a man can not be the judge in his own cause (memo debet case judex in propria causa) The contents of these principles vary with the varying circumstances and those can not be petrified or fitted into rigid moulds. They are flexible and turn on the facts and circumstances of each case. In applying these principles, there is a need to balance the competing interests of administrative justice and the exigencies of efficient administration. These principles were applied originally to Courts of justice and now extend to any person or body deciding issues affecting the rights or interests of individuals whether a reasonable citizen would have legitimate expectation that the decision-making process would be subject to some Rules of fair procedure. These Rules apply, even though there may be no positive words in the statutes requiring their application. 25. Lord Atkin in R vs Electricity Commissioners, (1924) I KB 171 observed that the Rules of natural justice applied to ‘any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially’. The expression ‘having the duty to act judicially’ was used in England to limit the application of the Rules to decision-making bodies similar in nature to Court of Law. Lord Reid, however, freed these Rules from the bondage in the landmark case of Ridge vs Baldwin 1964 AC 40. But even before this decision, the Rules of natural justice were being applied in our country to administrative proceedings, which might affect the person, property or other rights of the parties concerned in the dispute. In all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting the person or property or other right of the parties concerned. 26. In England, the application of the principles of natural justice have been expanded by introducing the concept of ‘fairness’. In Re infant H(K) (1967 1 All ER 226), it was held that whether the function discharged in quasi-judicial or administrative, the authority must act fairly. It is sometimes thought that the concept of ‘acting fairly’ and ‘natural justice’ are different things, but this is wrong as Lord Scarman correctly observes that the Courts have extended the requirement of natural justice, namely, the duty to act fairly, so that it is required of a purely administrative act Council of Civil Service Union vs Minister for the Civil Service (1984) 3 All ER 935. 27. An administrative act may be held to be subject to the requirements of natural justice either because it affects rights or interests and therefore involves a duty to act judicially in accordance with the classic authorities and Ridge vs Baldwin; or it may simply be held that in our modern approach, it automatically involves a duty to act fair1y and in accordance with natural justice. The Indian Supreme Court has adopted this principle holding “………this Rule of fair play must not be ettisoned save in very exceptional circumstances where compulsive necessity so demands” Swadeshi Cotton Mills vs India, AIR 1981 SC 818. (To be continued)