Appellate Division Cases
(Civil)
PARTIES
Dr. Mohammad Sarwar Ramiz & others ………… Appellants (in C.A.No. 209 of 2005)
Bangladesh represented by the Secretary, Ministry of Health and Family Welfare. Bangladesh Secretariat, Ramna, Dhaka & others …………… Appellants (in C.A. No. 210 of 2005)
-Vs-
Dr. Shyam Sundar Kundu (FCPS) & others ………Respondents, (in both the appeals)
Md. Ruhul Am in CJ
M.M. Ruhul Amin J
Md. Hassan Ameen J
Md. Abdul Matin J
Judgment Dated: 3rd December 2007
Bangladesh Public Service Commission (Conduct of Busines) Rules, 1981, Regulation 16
Because the Bangladesh Public Service Commission after perusal of relevant papers and documents issued interview cards to all the suitable candidates including the writ petitioners and the present petitioners; that after holding interview properly and on scrutiny of the documents filed and after application of mind, the PSC selected the present petitioners for the post of Assistant Professor of Radiology but the learned judges of the High court Division erred in law in deciding the case without application of judicial mind and without considering the documents and made the rule absolute and as such the impugned judgment and order passed by the High Court Division is liable to be interfered with by this Court. ……………….(6)
Thus on consideration of the submissions of the learned Counsel for the parties and Rules 16 and 17 of the Rules it appears that Rule 16 refers to competitive examination for the purpose of recruitment to a service and this obviously refers to holding of competent examination for the purpose of direct recruitment at the entry level to a service whereas Rule 17 refers to recruitment to a service or a particular post by selection and this obviously refers to selection for the purpose of appointment on promotion to a higher post as in the instant case ………………….(14)
Therefore, we are of the view that the High Court Division was not justified in holding that for the purpose of selection of candidates already in government service for promotion to a higher post/posts Rule 16 shall apply rather Rule 17 shall apply in the present case. ………………….(15)
The General Rules to be followed in respect of qualifications etc. of the candidates and this is not only criteria for selection of candidates for a post concerning Radiology, Radiotherapy and Psychiatry and the Public Service Commission, which is a constitutional body considered other aspects of the candidates also and selected the candidates in a neutral manner and the Chairman and Members of the PSC are oath bound to discharge their duties in a neutral way …………..(17)
Therefore, in the facts and circumstances of the case and in view of the discussions made above, we are of the view that Rule 16 of the Rules is not applicable in the present case,, rather Rule 17 is applicable as we have already indicated. Since the Public Service Commission as per Rule 17 held viva voice test for promotion of the officers already in Government service to a higher post, there was no violation of the Rule and no illegality was committed. Accordingly, the impugned judgment of the High Court Division requires interference by us …………………..(18)
A.F. Hassan Arif, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record …………………For the Appellants (in C.A. No. 209 of 2005)
Salahuddin Ahmed, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record………………… For the Appellant (in C.A.No. 210 of 2005)
Dr. Kamal Hossain, Senior Advocate (Abdul Matin Khosru, Advocate with him) instructed by S.R. Khoshnabish, Advocateon-Record…………………………. For Respondent Nos. 1-6 (in C.A. No. 209 of 2005)
Dr. Kamal Hossain, Senior Advocate (Abdul Matin Khosru, Advocate with him) instructed by Sufia Khatun, Advocate-on-Record ………………….For Respondent Nos. 1 -2 (in C.A. No. 210 of 2005)
Respondent Nos. 7-14 (in C.A.No. 209 of 2005) ……………………….Not represented
Respondent Nos. 3-14 (in C.A. No. 210 of 2005)……………………. Not represented.
Civil Appeal Nos. 209 & 210 of 2005
(From the judgment and order dated 28.03.2005 passed by the High Court Division in Writ Petition No. 1735 of 2004.)
JUDGMENT
M.M. Ruhul Amin J: These two appeals by leave are directed against the common
judgment and order dated 28.03.2005 passed by the High Court Division in Writ Petition No. 1735 of 2004 making the Rule absolute.
2. Short facts are that the respondent Nos. 1-6 instituted Writ Petition No. 1735 of 2004 challenging Memo No. fra-i/feffl-o*/*oo8/vsW>(*°) dated 16.03.2004 (Annexure-D-1 to the writ petition) appointing the appellants of C.A. No. 209 of 2005 and another to the post of Assistant Professor of Radiology stating, inter alia, that Bangladesh Public Service Commission (PSC) invited applications from the candidates for appointment in
various posts including Assistant Professor, Radiology by circular dated 21.05.2001 and the writ petitioner respondents and the writ respondent appellants applied for the posts and they received interview cards for interview schedule to be held on 18.11.2003 to 20.11.2003 and 43 candidates participated in the interview and the PSC selected and recommended 4 four candidates i.e. the appellant Nos.l to 3 and one Dr. Shafiqul Alam for appointment as Assistant Professor of Radiology and on the basis of the recommendation they have been so appointed. In the writ petition it was alleged that the aforesaid selection of candidates has been done in violation of Bangladesh Civil Service
Recruitment Rules, 1981 as amended upto 1988, (in short the Rules) and it was alleged that the aforesaid appointees had no requisite qualification or experience for the posts.
3. The aforesaid appointees were not impleaded in the writ petition and at the instance of the present appellants they were impleaded as respondent Nos.9 to 11 in the writ petition and they contested the Rule by filing affidavit-in-opposition stating, inter alia, that they were selected as Assistant Professors of Radiology considering their merit and qualification and accordingly the Government appointed them and they joined different Medical Colleges/Institutions vide memo dated 16.03.2004 (Annexure-D-1 to the writ
petition) . The further case is that the writ petitioners filed the writ petition after undue delay, moreso, when the petitioners (writ respondents) already joined their job and so the Rule became infructuous and that the writ petitioner No.l stood 13th position, writ petitioner No.2 stood 5th position, writ petitioner No.3 got 16th position, writ petitioner No.4 failed in the interview i.e. did not secure qualifying marks, writ petitioner No.5 got 22nd position, writ petitioner No.6 failed in the interview held by PSC and that PSC
makes the selection on the basis of merit and in the instant case also the appellants i.e. the writ respondents were selected on the basis of merit. It was further stated that in case of excessive number of candidates there was, under the rule, necessity of holding examination but in the instant case there being 49 candidates against four posts, there was no necessity to hold any examination and therefore, under the Rules, the PSC held interview as stated above. There was no violation of any rule as only the viva voice test was held.
4. Affidavit-in-opposition was also filed by the respondent No.3, PSC, denying the material allegations made in the writ petition and justifying their actions.
5. The High Court Division after hearing the parties and considering the materials on record made the rule absolute as noticed earlier.
6. In Civil Petition for Leave to Appeal No. 612 of 2005 leave was granted to consider
the following grounds: ” Because the Bangladesh Public Service Commission after perusal of relevant papers and documents issued interview cards to all the suitable candidates including the writ petitioners and the present petitioners; that after holding interview properly and on scrutiny of the documents filed and after application of mind,
the PSC selected the present petitioners for the post of Assistant Professor of Radiology but the learned judges of the High court Division erred in law in deciding the case without application of judicial mind and without considering the documents and made the rule absolute and as such the impugned judgment and order passed by the High Court Division is liable to be interfered with by this Court.”
“Because the Bangladesh Public Service Commission is a self Governed constitutional body and that the PSC recommended the present petitioners as per provision of law as incorporated in Articale 140 of the Constitution of the People’s Republic of Bangladesh; that the learned judges, without having found any illegality or violation of any law or rules in the process of the interview held by the PSC in the instant case, erred in law in setting aside the PSC’s recommendation which was accepted by the Government and issued the appointment letters; that the impugned order has resulted in miscarriage of justice and the petitioners have been prejudiced thereby.”
“Because the Bangladesh Public Service Commission did not commit any illegality in the detailed process of selection and in recommending the present petitioners for appointment as Assistant Professor, Radiology but the High Court Division without considering the facts and records most illegally made the rule absolute and as such the impugned judgment and order passed by the High Court Division is
liable to be interfered with by this Court.”
“Because FCPS is a Diploma which was obtained by the writ petitioner (No.l) attending a course of only one and a half year duration on subjects including radiology and that the Diploma of FCPS is granted by a private institution which is know as Bangladesh College of Physician and Surgeons (BCPS); that on the other hand DMRD is a Diploma of two years duration exclusively trained in Radiology provided by well known and renowned University of the world, the Dhaka University; that DMRD is acceptable in most of the foreign countries in radiology, but the High Court Division without considering the same made the rule absolute with the misconceived idea that FCPS is upper degree than that of DMRD and as such the impugned judgment and order is liable to be set aside by this Court.”
“Because in the advertisement of Bangladesh Public Service Commission (BPSC) dated 21.05.2001. it was mentioned that ‘candidates having teaching experience or evidence of research work and publication will get preference”; that all the selected candidates including the present petitioners have teaching experience, research work and publication; that the BPSC after considering all the relevant qualification and on the basis of result of the interview rightly recommended the petitioners for appointment which hardly merited interference by the High Court Division and as such the impugned judgment and order is liable to be set aside.”
“Because the High Court Division itself evaluated documentary materials and nv;ivcd at a conclusion and substituted its own conclusion different from that of the PSC arrived at by the PSC on the basis of evaluation of materials as well as interview and thus the High Court Division sat as an appellate authority over the opinion formed by the PSC and so acted in excess of jurisdiction and committed illegality in so sitting as an appellate body, inasmuch as the decision making process only is justifiable on count of unreasonableness,
irrationality and non-consideration of materials by the PSC but not the decision/
conclusion/opinion by the PSC.”
“For that the High Court Division erred in law in making the rule absolute in the facts and circumstances of the case, inasmuch as;
(a) The impugned memo dated 16.03.2004 of posting/appointment following the selection of candidates by the Public Service Commission (PSC) in accordance with procedure for recruitment under Regulation 1 7 of PSC (Conduct of Business Rules. 1981), (as amended) is a decision not to be substituted in judicial review by the High Court Division, as if sitting as a court appeal.
(b) Judicial review looks at the decision making process rather than decision itself on well settled grounds/principles of “illegality” “irrationality” and “procedural impropriety” and in the absence of such grounds, the decision itself made pursuant to the recommendation of the expert body like PSC cannot be legally faulted by the High Court Division in its writ jurisdiction.
(c) The advertisement (Annexure-B) stipulating particular minimum qualification for appointment as also further stipulating a “preference” for some other qualification does not ipso facto legally entitle the writ petitioners to be selected and appointed automatically.
(d) The issuance of interview cards (Anncxure-C series) specifically providing for interview following the procedure in Regulation 17 (iii) of the PSC (Conduct of Business) Rules, 1981, (as amended) after a scrutiny examination of all applicants
papers including that of the writ petitioners and all the writ petitioners having participated in such interview, it does not lie in their mouth to challenge holding of interview in making the selection; the writ petitioners are estopped from challenging the selection process under the established principles of estoppal.
(e) Inappropriate reliance by the High Court Division on Regulation 16 of the PSC (Conduct of Business) Rules, 1981 (as amended) has occasioned the High Court Division to go wrong, thereby committing an error of law in making the rule absolute which is not sustainable under law.”
7. In Civil Petition for Leave to Appeal No. 737 of 2005 leave was granted to consider
the following grounds:”
For that the High Court Division erred in law in making the rule absolute in as such
as the appointee respondents have all the qualifications as incorporated in the recruitment rules and the Public Service Commission after considering the relevant papers and documents of the candidates and after proper interview rightly selected the respondent candidates and as such selection by the commission cannot be interfered with by the High Court Division in writ petition.”
“For that the writ petitioners could not obtain the position for selection in the competitive examination and the PSC having not held any written examination according to rules, the High Court Division erred in law in making the rule absolute.”
“For that the High Court Division not being in a position to act as court of appeal over the PSC the High Court Division erred in law in making the rule absolute.”
8. We have heard Mr. A.F. Hassan Anf, the learned Counsel for the appellants in C.A.
No. 209 of 2005 and Mr. Salahuddm Ahmed, the learned Additional Attorney General for the appellants in C.A. No. 210 of 2005 and Dr. Kama! Hossain, the learned Counsel for respondent Nos. 1-6 in C.A. No. 209 of 2005 and for respondent Nos. 1-2 in C.A.No. 210 of 2005 and perused the judgment of the High Court Division and other connected apers.
9. It is not disputed that the appellants and respondent Nos. 1-6 were already in Government service. It is also undisputed that the P.S.C. advertised 4 posts of Assistant Professors of Radiology along with other posts for Medical Colleges or equivalent Institutions and 49 persons applied for the posts of Assistant Professors of Radiology. Out of them 43 appeared at the interview conducted by the P.S.C. be it mentioned here that the appellants and respondent Nos. 1-6 all appeared at the interview before the P.S.C.
But the respondent Nos. 1-6 were not selected for appointment/promotion as Assistant Professors of Radiology of Medical Colleges/ equivalent Institutions.
10. The High Court Division made the Rule absolute mainly relying on Rule 16 of Bangladesh Public Service Commission (Conduct of Business) Rules, 1981 (shortly the Rules).
11. Dr. Kamal Hossain, the learned Counsel for the respondents submits that there has been violation of Rule 16 of the Rules, 1981 in the instant case and the High Court Division was perfectly justified in relying on Rule 16 and making the Rule absolute as no examination as envisaged in the Rule was held. Mr. A.F. Hassan Anf, the learned Counsel for the appellants on the other hand submits that Rule 16 provides for holding comnetitive examination for the purpose of ‘recruitment to a service and in the instant case Rule 17 of the Rules, 1981 shall apply because the appellants and respondent
Nos.1-6 were already in Government service and it was not a case of recruitment, rather it was a case of selection for appointment/ promotion to higher posts namely Assistant Professor of Medical Colleges. To appreciate the submissions made at the Bar let us reproduce below Rules 16 and 17 of the Rules.
A-By Examination
“16. When any competitive examination is to be held for the purpose of recruitment
to a service and consultation with the Commission is required, the Commission shall
(i) advise the President in regard to the rules prescribing the
a) qualifications of candidates,
(b) conditions of admission to the examination,
and
(c) syllabus of the examination;
(ii) announce the number of vacancies to be filled from among the candidates for the examination;
(iii) make all arrangements for the actual conduct of the examination, including viva voice and other tests connected with it, both in Bangladesh and abroad, and may, for this purpose, depute a member to abroad for sitting on the Interview Board. Provided that when the Commission finds it necessary to send more than one member to abroad, it shall obtain prior approval of the President;
(IV) request the Government to nominate a suitable officer to represent the service or
Department for recruitment to which the examination is being held.
(v) arrange the successful candidates in order of merit on the results of the examination and in conformity with the relevant rules and the number of vacancies announced and, if the examination be a combined one for recruitment to more than one service, determine the suitability of individual candidates for different services;
and
(vi) forward to the President a list of the candidates so arranged and determined as indicated in clause (v) above.
12. Explanation I-The Government will, however, be approached for formal sanction of necessary foreign exchange for the performance of the member’s visit abroad.
13. Explanation II- The suitability of candidates should be determined by the Commission and their placement should be made by the Government.
B-By Selection
17. When recruitment to a service is to be made, or a particular post is to be filled, by
selection and consultation with the Commission is required, the Commission shall
(i) advise the President in regard to the rules regulating the qualifications of candidates and the submission of applications;
(ii) when necessary, announce the number of vacancies and invite applications;
(iii) consider all applications received and, when necessary, interview such candidates
as it considers prima facie most suitable for appointment and may also call for character rolls of such candidates as are Government servants and such other papers as it may require for the purpose of selection;
(iv) recommend only one candidate for each vacancy and keep some suitable names in reserve;
(v) when there are two or more vacancies to be filled, arrange the candidates recommended in order of merit;
(vi) request the Government to depute a suitable officer to represent the service or Department for which the recruitment is being made.. Further, the Commission may, if necessary, invite any person or persons to assist them in making the selection;
(vii) when recruitment is made by selection owing to the failure of a competitive examination to yield a sufficient number of qualified candidates or to give adequate
representation to a certain zone, area, class or community, recommend candidates in accordance with such orders as the President may pass in this respect; and
(viii) where consultation with the Commission is required before a person holding a post temporarily is confirmed therein, advise the President whether the record of the officer during the period that he has been temporarily employed, proves him to be suitable for permanent employment.
14. Thus on consideration of the submissions of the learned Counsel for the parties and Rules 16 and 17 of the Rules it appears that Rule 16 refers to competitive examination for the purpose of recruitment to a service and this obviously refers to holding of competent examination for the purpose of direct recruitment at the entry level to a service whereas Rule 17 refers to recruitment to a service or a particular post by selection and this obviously refers to selection for the purpose of appointment on promotion to a higher post as in the instant case.
15. Therefore, we are of the view that the High Court Division was not justified in holding that for the purpose of selection of candidates already in government service
for promotion to a higher post/posts Rule 16 shall apply rather Rule 17 shall apply
in the present case.
16. The learned Counsel for the respondents in C.A.No.209 of 2005 referred to section 4.051 of ‘Personal Manual’ Published by the Ministry of Establishment, 0 & M Wing
(Development Branch) , Government of the People’s Republic of Bangladesh and
submitted that Section 4.051 provides that the Public Service Commission on receipt
of the requisition from the Government shall advertise the vacancies, hold examination
including viva voice etc. This section appears under the main heading “4.05-Direct Recruitment To B.C.S. Cadre Posts”. As we have already pointed out the instant case is not a case of direct recruitment, rather it is a case of promotion to a higher post from the persons already in Government service. The learned Counsel has also drawn our attention to the ‘General Rules to be followed by the P.S.C. in respect of qualifications etc. and
submits the General Rules provide that in case of selection of candidates for a post concerning Radiology, Radiotherapy and Psychiatry, candidates with Fellowship or Membership of a recognized institution will get preference over those with D.M.R.D.; D.M.R.T.; D.P.M.
17. The learned Counsel for the appellants in reply submits that these arc the General
Rules to be followed in respect of qualifications etc. of the candidates and this is not only criteria for selection of candidates for a post concerning Radiology, Radiotherapy and Psychiatry and the Public Service Commission, which is a constitutional body considered other aspects of the candidates also and selected the candidates in a neutral manner and the Chairman and Members of the PSC are oath bound to discharge their duties in a neutral way.
18. Therefore, in the facts and circumstances of the case and in view of the discussions
made above, we arc of the view that Rule 16 of the Rules is not applicable in the present case,, rather Rule 17 is applicable as we have already indicated. Since the Public Service Commission as per Rule 17 held viva voice test for promotion of the officers already in
Government service to a higher post, there was no violation of the Rule and no illegality
was committed. Accordingly, the impugned judgment of the High Court Division requires interference by us.
19. Both the appeals are accordingly allowed without any order as to costs.
Source : V ADC (2008), 181