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An act of contumacious disregard

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High Court Division
[Special Original Jurisdiction]
Present:
Mr. Justice Md. Mamtaz Uddin Ahmed
And
Mr. Justice Gobinda Chandra Tagore
Writ Petition No.3719 of 2010
Afrin Akter     .............Petitioner
- Versus-
Bangladesh and others................Respondents
Mr. S.M. Rezaul Karim,
Advocate......................For the Petitioner
Mr. Karunamoy Chakma,
D.A.G. ...................For the Respondents
Heard On: 11.1.2011
Judgment On: 18.01.2011
Constitution of Bangladesh, 1972
Article-102
Admittedly the Government has adopted policy for giving appointment of -the sons and daughters of the Freedom Fighters and kept reserve 30% posts for that purpose Annexure"J" to the writ petition but the respondents have not been followed the circular -Held' The failure to obey the circular of the Government, thus constitutes disobedience as well as misconduct and there is a contumacious disregard to the circular and such, failure appears to us is deliberate and intentional and they, should be condemned for such deliberate and intentional disobedience to the circulars. [Para-17]
General Observations-
High Court Division expects the Government machineries as a whole shall follow the circular and the instructions issued from time to time in respect of giving benefit to the heirs of the Freedom Fighters who are the great sons of the soil. [Para-17]
Judgment
Mr. Md. Mamtaz Uddin Ahmed, J,:- On the application under   Article 102 of the Constitution of the People's Republic of Bangladesh this Rule Nisi was issued calling upon the respondents to show cause as to why the violation of, Circular No. Awa/cÖkv-3/¯^vtmnt/ïb¨ c‡` wb‡qv‡Mi QvocÎ/09/25318 ZvwiL 21.06.2009, issued by the Ministry of Health, Government of the People's Republic of Bangladesh, in appointing the Health Assistant for the Motivanga union of Nazirpur Upazilla, excluding the petitioner, being Daughters of the Freedom Fighters, should not be declared to have been done without lawful authority and as -to why the respondents should not be directed to appoint the petitioner in the reserved 30% quota of Freedom Fighters.
2. Facts relevant for the disposal of the Rule are that father of the petitioner late Professor M.A. Halim Munshi cr Mushier Halim Munshi is an eminent Freedom Fighter. The petitioner is the inhabitant of Village Tarabunia, Upazilla -Nazirpur, District Pirojpur and to that effect the Chairman of the Local Union Parishad namely Mativanga Union Parishad has issued the certificate (Annexure-B). On 21.06.2009, the Director Health published advertisement inviting; application for the competent candidate for the post of Health Assistant mentioning the requisite qualification as HSC or equivalent of HSC pass in the advertisement. It was mentioned; that the quota for the sons and daughters of Freedom Fighter to be followed as per government circular.
3. The petitioner is the daughter of said late Professor M.A. Halim  Munshi @ Halim Munshi Freedom Fighter filed an application for the post of Health Assistant by enclosing all the relevant paper/documents as per instruction given in the advertisement. After scrutiny, she was found qualified and accordingly, interview card was issued to the petitioner being Roll No. 103780 and she appeared in the written examination and passed the written examination. The result was published by the Director General of Health where the Roll of the petitioner being 103780 was published in the coloum of Ward No.2, Mativanga Union of Nazirpur Upazilla under Pirojpur District (Annexure E). Thereafter, the petitioner appeared before the Viva Board and satisfactorily replied all the questions asked by the Board to the petitioner and she became confident about the success in the Viva examination.
4. On 13.04.2010, the Civil Surgeon, Pirojpur, issued appointment letter for the post of above mentioned Health Assistant for Nazirpur Upazilla where the petitioner found that her name is not in the list. On further inquiry, the petitioner came to know that no one has been appointed in the quota of and daughters of the Freedom Fighters. In the advertisement in column No. 12 & 13, it was clearly mentioned that the reserve quota for the sons and daughters of Freedom Fighter to be followed as per Government Circular. It has also been mentioned that the office of the Prime Minister by letter dated 5.7.1998 gave direction to the Secretary, Ministry of Establishment, Dhaka to follow the quota strictly and to that effect, directed further the Secretary for publishing a notification (Annexure-G).
5. According to Government Circular 30% vacant posts must be filled up by the sons and daughters of the Freedom Fighters in all appointments given in the Government services (Annexure-H). As per Circular for; appointment of the Health Assistant in Pirojpur District there was vacancy of 27 post in Nazirpur Upazilla, where 30% posts is required to be filled by the sons and daughters of the Freedom Fighters which is mandatory but such Rule has not been followed by the respondents but filled up the posts by the general candidates excluding the sons and daughters of the Freedom Fighters.
6. Md. Nazrul Islam Khan, the Director of the office of the Prime Minister on 05.06.2000 wrote a letter to the Secretary, Ministry of Establishment informing that the Government's decision that in no way. the reserve seat for the sons and daughters of the Freedom Fighters can be filled up by the outsiders but it must be filled up by sons and daughters of Freedom Fighters (Annexure-I).
7. The officials by violating the Mandatory Provision of 30% quota reserve for the appointment of the sons and daughters of the Freedom Fighters against the vacant post appointed the outsiders who were not sons and daughters of the Freedom Fighters in Pirojpur District, though the sons and daughters of the Freedom Fighters were qualified for the appointment in the same post. The Newspapers had published about the violation of Mandatory Provision by the respondents in appointing the Health Assistant all over the country particularly in the Najirpur Upazilla of Pirojpur District  ( Annexure-J series).
8. According to 4 the Government policy 70% posts of the . Government Job; are required to filled up by general candidate but 30% posts must be filled up by the candidate among the sons and daughters of the Freedom Fighters and if the sons and daughters are not available in the respective ward, it must be filled up by the sons and daughters of the Freedom Fighters from the neighbouring wards, Upazilla, District, Division and should follow the circular on the National basis but in no way vacant posts from the quota of sons and daughters of the Freedom Fighters can be filled up by the general candidates but in the instant case, it has not been followed and the petitioner having failed to enjoy the privilege given by the Government in spite of being qualified in all respects has filed this writ petition and obtained the Rule and stay.
9. On perusal of the order sheet of this Court, it appears the rule has been served upon the respondents but no affidavit-in-opposition has been filed having controvert the statements made in the writ petition.
10. However, Mr. S. M. Rezaul Karim, the learned Advocate appearing for the petitioner has taken us through the writ petition and the Annexures thereto and submits that admittedly, the Government has adopted policy for giving appointment of the sons and daughters of the Freedom Fighters and kept reserve 30% posts for that purpose Annexure "J" to the writ petition but the respondents have not been followed the circular.
11. Mr. Reza then has drawn our attention to Annexure-"J"     and s