MOFIZUL HUQ Vs. MOFIZUR RAHMAN

JUDGEMENT

(1.) The moot question in this appeal by leave is whether the High Court Division is right in holding that a recognised non-government secondary school is a local authority within the meaning of section 7(2) (e) of the Local Govern (Union Parishads) Ordinance), 1983, briefly, the Ordinance and that the appellant being a full time teacher disqualified from being a Chairman of Union Parishad thereunder.

(2.) Respondent No. 1 who is a voter in the concerned Union filed Writ Petition No. 21 of 1995 calling upon the respondents including the appellant who was made respondent No. 11 therein, to show cause, among others, as to under what authority he(the appellant) was holding the office of the Chairman of Hoglapasha Union Parishad within Police Station Morrelgonj, District Bagerhat. It is inter alia, stated that the appellant and one Probir Kumar Halder contested the election for the office of Chairman of the said Union Parishad which took place on 6-2-1992 and the appellant was declared elected by a Gazette notification dated 5-3-1992. The writ-petitioner alleged that respondent No. 11 (the appellant) is a teacher of the Sammilani Girls High School situated at village Boalpur, PS Morrelgonj, District Bagerhat which is a non Government secondary school within the meaning of section 2(1) (h) (j) of the Intermediate and Secondary. The Education Ordinance, 1961 (Ordinance No. XXXIII of 1961) as amended by the amending Ordinance of l977 (Ordinance No. XVII of 1977); The appellant was thus disqualified for election to the office of Chairman of the said Union Parishad under section 7(2)(e) of the aforesaid Local Government Ordinance of 1983 read with the provisions of section 30(1) (b) of the aforesaid Ordinance No. XXXIII of 1961. The appellant filed nomination paper on 7-12-91 suppressing the fact of his disqualification as aforesaid and contested the election held on 6-2-1992 and that he is still in service of the said school as a teacher without any cessation or break and, as such, he has got no lawful authority in holding the office of Chairman of the said Union Parishad and he is liable to be directed to vacate the said office. The other contesting candidate is entitled to hold the said office of Chairman as duly elected uncontested under Rule 20 (3) of the Election Rules.

(3.) The appellant filed an affidavit-in- opposition denying the allegation of the writ- petitioner as to his alleged disqualification under the Ordinance in question for being the Chairman of the Union Parishad concerned. It has been stated that the Sammilani Girls High School is a private High School recognised by the Board of Intermediate and Secondary Education, Jessore and has always been a purely private High School and that its recognition by the Board of Intermediate and Secondary, Education does not change the said High School into a Government High School. The appellant stated that the allegation as to his disqualification was made upon a wrong view of the law. He was elected Chairman of the said Union Parishad in 1973, 1977, 1983 and 1992 and that he is still functioning as the Chairman thereof. The contention of the writ-petitioner was misconceived and frivolous and, as such, liable to be rejected. It was further stated that the writ-petitioner was a camp-follower of the defeated candidate Probir Halder who having lost in the Election Tribunal Case No. 14 of 1992 set up the writ-petitioner, who, by deliberately suppressing the fact as to the election petition by Probir Halder and its result, misled the High Court Division and succeeded in not only obtaining a Rule but also an order of injunction against the appellant writ-petitioner also suppressed the fact that the Writ P No. 1649 of 1992 filed by the said Probir Halder challenging the acceptance of the nomination has been serving as the Headmaster of the said paper of the appellant was summarily rejected by the school since long before. It is alleged that the High Court Division on 4-5- 1992.