Appellate Division Cases
(Civil)
PARTIES
A.H.M. Mustain Billah and 4 others ………………….Appellants
-VS-
Govt. of Bangladesh and 60 others………………….Respondents
JUSTICE
Latifur Rahman CJ
Bimalendu Bikash Roy Choudhury J
A.M. Mahmudur Rahman J
Mahmudul Amin Choudhury J
Kazi Ebadul Hoque J
JUDGEMENT DATE: 21st August 2000
Section 3(e) of B.C.S. Seniority Rules, 1983
Joynal Abedin and another Vs. Govt. of Bangladesh, 34 DLR (HCD) 77
Article 27, 29, 31,133, 136 of the Constitution
Section 4 of the Service (Reorganization and Condition) Act 1975
You will be treated as a class junior to candidates who have been appointed in 1983 on the result of the 1982 Examination or who have been appointed or whose adhoc appointment may be regularized from the date prior to your joining ……………(4)
Candidates appointed through earlier advertisement shall rank senior to those appointed through a subsequent advertisement although identical provision was already there in the General Principles of Seniority as contained in Establishment Division O.M. dated 31.12.70. Thereafter a notional date of joining was contrived for the entire batch of BCS (Administrative: Administrative) 1982 Cadre who had actually joined from October to December 1983, and by a notification dated 1.3.88 they were declared to have joined notionally on 2.4.83 and the appellants on 3.4.83. Subsequently under an S.R.O. dated 16.3.92, the BCS (Administrative: Administrative) and BCS (Sectt.) Cadres were merged together and redesignated as BCS (Administration) …………………(5)
According to the general principles of seniority vide memo dated 31.12.70 the officers recruited directly through an earlier open advertisement shall rank senior
to those recruited through a subsequent open advertisement. Therefore, the i Government in consultation with the P.S.C and the Ministry of Law amended the BCS Seniority Rules by incorporating sub-rule 3(g) to protect the seniority of I the officer who were appointed through an earlier advertisement, and as such the i sub-rule is neither illegal nor in contravention of the conditions laid down in the Advertisement dated 22.12.82 or the offer of the appointment of the petitioners……..(9)
Dr. Kamal Hossain, Senior Advocate, (Abdur Rob Chowdhury, Senior Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record……… For the Appellants.
Mahbubey Alam, Additional Attorney General, instructed by B. Hossain, Advocate-on-Record …………………. Respondent No. 1.
Amirul Islam, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-
Record………………………… Respondent Nos. 2-61
JUDGMENT
1. Latifur Rahman CJ : This appeal following leave by the five applicant-appellants is directed against the judgment and order dated 27.7.1998 passed by the Administrative Appellate Tribunal in Appeal No. 74 of 1997 arising out of A.T. Case No. 232 of 1994 of the Administrative Tribunal, Dhaka.
2. The five appellants instituted the Administrative Tribunal Case against the Government represented by the Secretary, Ministry of Establishment and 60 others for declarations that the newly inserted Rule 3 (g) of the BCS Seniority Rules 1983 is not applicable to them as well to respondent Nos. 2-61. They further claimed that the Government order as contained in Memo No. Sha. Ma (Bidhi-2) Gesthat-57/93/49 (100) dated 4.4.94 is without lawful authority and of no legal effect and that the appellants are senior in service to respondent Nos. 2-61.
3. Briefly stated, the appellants’ case is that, the Public Service Commission issued Advertisement No. IF-H/82/290 dated 10.6.82 (Annexure-G) for holding a combined competitive examination for recruitment of 2490 persons to 25 cadre services including 8 persons to BCS (Sectt.) Cadre. After the examination the selected candidates joined their respective services during October to December, 1983. In the meantime the Public Service Commission issued another Advertisement No. IE-23/82/239 dated 22.12.82 (Annexure-B) inviting applications for recruitment to 650 posts of Magistrate in BCS (Administrative: Administrative) Cadre. In this Advertisement it was stipulated that “Selected persons after appointment to BCS (Admn:Admn) will be placed in the Cadre list after the last person already encadred.” The five appellants (and others) sat for this examination which was held from February, 1983 and the final result was published in May, 1983. They were selected and in the offer of appointment it was stated that “as and when you would be considered for encadrement in BCS (Administrative: Administrative) inter-se-seniority of yours vis-a-vis those successful candidates appointed to this Cadre on the basis of BCS Examination held in October, 1982, candidates of 1982 batch, will have seniority over you as a batch.” They joined service on 3.4.84, 19.6.83 and 1.9.83.
4. It is stated in the application that after the joining as aforesaid of all successful candidates of the 1982 batch of BCS Caders and 1982 Special batch (as the appellant came to be know) the P.S.C. on requisition dated 7.12.83 from the Ministry of Establishment nominated out of the panel of successful candidates of 1982 batch 80 persons for recruitment of the BCS (Sectt.) cadre vide their letter dated 29.12.83, subject to the specific condition that they were to be placed in the Cadre list after the last person already nominated/appointed. Based on the aforesaid recommendation of the P.S.C. the Government issued offer of appointment dated 22.1.84 to respondent Nos. 2-61 with the condition “you will be treated as a class junior to candidates who have been appointed in 1983 on the result of the 1982 Examination or who have been appointed or whose adhoc appointment may be regularized from the date prior to your joining.” Thus respondent Nos. 2-61 were recruited in 1984 in the second phase in the BCS (Sectt.) Cadre on the result of BCS Examination of 1982.
5. It is the further case of the appellants that by an S.R.O. dated 8.7.85 the BCS Seniority Rules, 1983 were amended by adding sub-rule (g) to rule 3 providing that the candidates appointed through earlier advertisement shall rank senior to those appointed through a subsequent advertisement although identical provision was already there in the General Principles of Seniority as contained in Establishment Division O.M. dated 31.12.70. Thereafter a notional date of joining was contrived for the entire batch of BCS (Administrative: Administrative) 1982 Cadre who had actually joined from October to December 1983, and by a notification dated 1.3.88 they were declared to have joined notionally on 2.4.83 and the appellants on 3.4.83. Subsequently under an S.R.O. dated 16.3.92, the BCS (Administrative: Administrative) and BCS (Sectt.) Cadres were merged together and redesignated as BCS (Administration). After the merger the appellants being apprehensive of dislocation of their seniority submitted representations on 10.6.92 and 16.11.92, but the same were rejected on 9.2.94. 6. Lastly, the Ministry of Establishment issued a memo dated 4.4.94 providing, inter alia, that 77 persons (including respondent Nos. 2-61) who were recruited in the second phase in the BCS (Sectt.) Cadre on the result of the BCS Examination held in 1982 would also be treated to have joined notionally with effect from 2.4.83 and shall be treates as senior of the 650 BCS (Administration) Cadre officers (including the appellants) who joined from 3.4.83.
7. The appellants further contended that respondent Nos. 2-61 were not recruited on the basis of P.S.C’s Advertisement dated 10.6.82 but were selected on the basis of the Establishment Division requisition dated 7.12.83 against newly created posts, the amended rule 3(g) has no legal effect as against the appellants and respondent Nos. 2-61 who are not entitled to any benefit thereof. Ii is further alleged that by introducing the notional seniority the appellants have been made junior illegally to respondent Nos. 2-61 who joined service later.
8. The case was contested by respondent No.l- Government and Respondent Nos. 261 by filing two separate written statements though substantially on similar grounds contending, inter alia, that the P.S.C. has on the basis of the date of Advertisement assigned numerical numbers to all BCS Examination so far held, and according to this the BCS Examination held under Advertisement dated 10.6.82 has been taken as the first BCS Examination to which respondent Nos. 2-61 belong, while the appellants belong to the second BCS Examination. Thus the appellants are as a batch junior to the respondents. It is stated that the appellants sate for a test of 300 marks only arranged by the P.S.C. to recruit personnel against 650 posts of Magistrate to fill urgent vacancies created due to the introduction of the Upazilla system. This test was distinctly different from the regular BCS Examination 1982 of 1600 marks in which respondent nos. 2-61 appeared and came out successful. The P.S.C’s advertisement dated 22.12.82 under which the appellants were appointed clearly mentioned that their appointment was not to be considered.
9. It is further contended by the respondents that according to the general principles of seniority vide memo dated 31.12.70 the officers recruited directly through an earlier open advertisement shall rank senior to those recruited through a subsequent open nadvertisement. Therefore, the Government in consultation with the P.S.C. and the
Ministry of Law amended the BCS Seniority Rules by incorporating sub-rule 3(g) to protect the seniority of the officer who were appointed through an earlier advertisement, and as such the sub-rule is neither illegal nor in contravention of the conditions laid down in the Advertisement dated 22.12.82 or the offer of the appointment of the petitioners. However, a practical problem arose because the length of service was a criterion for becoming eligible for appearing for examination for promotion to senior scale posts etc. and in order to tide over the situation of notional dated of joining was fixed in consultation with the P.S.C. for the officers recruited on the basis of the regular BCS Examination held in pursuance of advertisement dated 10.6.82, thus resolving vide notification dated 1.3.88 the question of notional seniority between the appellants’ batch and the regular batch of 1982. But the question of notional seniority of officers of other cadres recruited through the same examination remained unresolved. So notional dated of joining had to be worked out and notification dated 10.11.89 was issued under which all officers of all cadres appointed on the basis of the results of 1st BCS Examination, irrespective of their dated of joining would as a batch rank senior to the appellants’ batch. Since respondent Nos. 2-61 were appointed on the basis of the 1st BCS Examination their case was already covered in the said Notification dated 11.10.89. Even then after unification of the two cadres i.e. BCS (Admn:Admn) and BCS (Sectt) into the new cadre i.e. BCS (Admin) vide order 16.3.92, the appellants submitted representations for fixation of the seniority over respondent Nos. 2-61, whereupon after consultation with the P.S.C. the matter was referred to the Ministry of Law and Justice which maintained that respondent Nos. 2-61 were obviously senior to the appellants’ batch and they should also be considered to have joined notionaliy from 2.4.83. Accordingly the impugned memo
dated 4.4.94 was issued to clarify the position and no illegality has thereby been committed. Respondent Nos. 2-61 having qualified in the examination to that 1st batch acquired a vested right to be considered as belonging to that batch, and as such the appellants have no right to claim seniority over them.
10. The Tribunal held that Rule 3 (g) of the BCS Seniority Rules 1982 is applicable to both the parties, that Memo dated 4.4.94 is bad in law and that the appellants are senior in service to respondent Nos. 2-61. Consequently allowed the case in part. The Administrative Appellate Tribunal set aside the judgment and order of the Tribunal and dismissed the case of the appellants.
11. On the submissions of Dr. Kamal Hossain, learned Counsel for the appellants leave was granted on the following grounds: 1. That the learned Administrative Tribunals manifestly erred in construing the provisions of Rule 3(g) of the BCS Seniority Rules, 1983 in disregard of the provision which clearly laid down that the inter se seniority would count from the date of appointment to the Cadre. There was no scope to include the concept of the date of advertisement in the said Rule prior to 8th July, 1985. 2. That the learned Administrative Tribunals manifestly erred in holding that the rovision of the amended provision in Rule 3(g) of the BCS Seniority Rules, was applicable prior to 8th July 1985 as a part of the General Principles of Seniority in disregard of the provisions of Rule 4. 3. That the learned Tribunals failed to appreciate the fact that the amended provision in Rule 3 (g) was not given any retrospective effect and as such it was not applicable to the appellants and the respondents who were appointed earlier in 1983 and 1984. 4.That the learned Administration (Administrative) Appellate Tribunal failed to appreciate the special facts and circumstances in which the Respondents were offered appointments in 1984 long after the appointments of the appellants in 1983 and the other persons selected on the basis of the advertisement dated 10th June, 1982 and as such the respondents were not eligible for being considered as recruited on the basis of advertisement on 10th June, 1982.
12. In this case there are certain admitted position of which there is no dispute between the parties. The Public Service Commission, briefly, P.S.C. made an advertisement on 10.6.82 for filling vacancies in Bangladesh Civil Service. In that advertisement it was mentioned that 2490 will be the number of total recruites including 8 persons in Bangladesh Civil Service (Sectt.). It was also mentioned in the advertisement that the vacancies shown in the advertisement are tentative. The Government reserves the right to increase or decrease the number of vacancies or to include or to exclude any category of vacancies in the said advertisement. It was also mentioned that the examination will consist of a total number of 1600 marks which will be compulsory for all the candidates. Again P.S.C. made another advertisement on 22.12.82 for appointment of Magistrates to BCS (Admn : Admn) Cadre in that second advertisement. It was mentioned in the second advertisement that the age of candidates would be between 21 to 50 years on the first December, 1982 and the candidates will have to appear at a Viva-Voce test of 200 marks and a Psychological and Intelligence test of 100 marks totalling 300 marks. In the said advertisement it was also mentioned that the selected candidates after appointment to the Bangladesh Civil Service (Administrative: Administrative) will be placed in the cadre-list after the last person already encadred. Those Magistrates started joining on and from 3.4.83 as well as the officers of the earlier batch (regular batch) joined later on. It is admitted that respondent
Nos. 2-61 who are qualified in the regular BCS Examination in 1982 but not recommended accoding to the original plan of recruitment were appointed to fill up in new vacancies created in the BCS (Sectt.) Cadre and as a batch they were junior to the 8 officers appointed to the said Cadre under the original plan. On 8.7.85 rule 3 (g) was inserted in the BCS Seniority Rules, 1983 by incorporating a new sub-rule, namely, sub-rule (g) in rule 3 of the said Rules which reads as follows: “Officers recruited directly to a cadre and sub-cadre of the Bangladesh Civil Service through the Bangladesh Public Service Commission or an authority competent to make selection for such appointment through an earlier open directly recruited to the same cadre and sub-cadre through a subsequent open advertisement even though the later may be appointed earlier than the former.” This is not completely a new provision in the service matter. Before insertion of sub-rule (g) in rule 3 of the BCS Seniority Rules, 1983 the similar provision was there in the general principle of seniority published vide notification dated 31.12.1970 from the Establishment Division, Ministry of Cabinet, Government of Pakistan. 13. Rule 4 of the BCS Seniority Rules, 1983 provides that matter not cover by Rule 3 shall be governed by the general principles of seniority. As a matter of fact the respondents who are appointed through an earlier advertisement shall rank senior to those appointed through subsequent advertisement. Rule 3 (e) was applicable for determining
seniority of the members of a service cadre and not determining seniority of two cadres. As a matter of fact Rule 3(g) is applicable in case of amalgamation of two cadres. It was on the basis of this amendment that notification was issued on 1.3.88 by the President giving notional seniority to the officers of the regular batch to those of the BCS (Admn: Admn) of 1982 with effect from 2.4.84 respectively. Another notification was issued by the President on 11.10.89 giving notional seniority to all offices of 1982 batch with effect from 2.4.83. Respondent Nos. 2-61 belonging to BCS (Sectt.) Cadre got this benefit. As a matter of fact there was no clash as the parties belong to different Cadres. The real dispute arose with the promulgation order dated 16.3.92, when BCS (Admn) and BCS (Sectt.) Cadre renamed as BCS (Admn) Cadre and thus cropped up the question of their inter-se-seniority. Respondent Nos. 261 who were officers of regular 1982 batch were sanguine about their seniority with effect from 2.4.83. But the appellants who were not in the BCS (Admn: Admn) Cadre and who according to them were not of the regular batch of 1982 as per original plan of the recruitment and were also appointed much later in the second phase as per requisition of the Ministry of Establishment were carrying with them the date 2.4.83 of their notional seniority and would thus be senior to the appellants. The appellants made representations which were rejected on 9.2.94. Subsequently, Ministry of Establishment by its memo dated 4.4.94 informed the appellants that as per notification dated 11.10.89 the seniority of officers appointed to the BCS (Sectt.) cadre in the second phase through 1982 regular examination and the seniority of the officers appointed to BCS (Admn: Admn) Cadre through 1981 special examination with effect from 2.4.83 and 3.4.83 respectively would remain unaffected.
14. Br. Kamal Hossain, learned Advocate appearing on behalf of the appellants, submits that both the Tribunals erred in law in constraining the provision of section 3(e) of B.C.S. Seniority Rules 1983.
15. Rule 3(e) of Bangladesh Civil Service Seniority Rules, 1983 reads of as follows: “(e) Seniority inter se of the future appointees to a Service Cadre where there is no provision for lateral entry at higher levels, shall be counted from the date of their appointment to the lowest specified post in that Service Cadre.”
16. Rule 4 is as follows : “Matters not covered by rule 3 shall be governed by the general principles of seniority.”
17. It is to be remembered that in 1982 there were two advertisements, one on 10.6.82 for regular batch and another on 22. 12. 82 for Magistrates to BCS (Admn: Admn) Cadre.Respondent Nos. 2-61 were actually recruited through earlier advertisement. Public Service Commission, on the basis of the date of advertisement, has assigned numerical numbers to all BCS Exams so far held, and according to this, respondent Nos. 2-61 belongs to 1st BCS Examination whilst the appellants’ batch belong to 2nd BCS Examination. This being the case appellants are as a batch junior to the respondents.
18. BCS (Admn) and BCS (Secretariat) cadres were not merged together and redesignated as BCS (Admn) Cadre. The correct position is that a new cadre, namely BCS (Admn) was created after unifying the former BCS (Admn) and former BCS (Secretariat) cadres. There in no scope to call it ‘merger’.
19. From notification dated 11.10.89 (Annexure-L) it appears that all officers of all cadres appointed on the basis of the results of 1st BCS Exam, irrespective of their date of joining, would as a batch, rank senior to the appellants’ batch. Since respondent Nos. 2-61 were appointed on the basis of the 1st BCS Exam there was no confusion about their seniority which was already covered in the Noticication dated 11.10.89. Nevertheless, appellant Nos.2 and 5 submitted two identical applications requesting to fix their seniority over respondent Nos. 2-61 and virtually started lobbying with different quarters. Though it was an already decided matter. Their applications were again examined in detail and then referred to PSC for their opinion. PSC suggested that the case may be disposed of in consultation with the Ministry of” Law and Justice. Accordingly Ministry of Law and Justice has been consulted which maintains that respondent Nos.
2-61 are obviously senior to the appellants batch and they (respondents) should also be considered to have joined notionally from 02.04.83. In view of the foregoing, Notification dated 04.04.94 had to be issued to clarify the position.
20. It may be further stated that advertisement dated 10.6.82 was given to notify holding of the Examination, posts mentioned therein were stated to be tentative,subject to increase or decrease. The advertisement Categorically stated that: ” The vacancies shown above are tentative. Government reserves the right to increase or decrease the under of vacancies or to include or exclude any category of vacancies.”
21. As a matter of fact, Rule 3(e) of the BCS Seniority Rules, 1983 is not applicable for determining the seniority of the appellants as well as of respondents as they were directly recruited on the basis of two different advertisements, whereas Rule 3(e) is applicable only in case of determining seniority involving lateral entrance.
22. We will answer to the argument of Dr. Kamal Hossain in respect of the concept of the dated of advertisement in the said Rules prior to incorporation of rule 3(g) on 18 July, 1985. Dr. Kamal Hossain has also cited some decisions of the Indian jurisdiction arguing that there is no scope to include the concept of the date of advertisement in the said Rules prior to 18th July, 1985 wherein rule 3(g) was incorporated.
23. The general principles of seniority as per the memo dated 31.12.70 states that officers recruited directly through an earlier open advertisement shall rank senior to those recruited through a subsequent open advertisement. Therefore, in line with the conditions given in the advertisement and offer of appointment, the BCS Seniority Rules 1983 was amended by incorporating sub-rule 3(g) to protect the seniority of the officers who were appointed through an earlier open advertisement. Thus the amended provision, namely sub-rule 3(g) is neither illegal nor in contravention to the conditions laid down in the advertisement or offer of appointment of the appellants. But a practical problem arose because length of service was a criteria for becoming eligible for appearing in the examination for promotion to the senior scale posts and eventual entry in the then senior services pool and in determining other service benefits. Although the officers of the regular batch was legally senior to the appellants batch, the appellants would mature for the benefit earlier than the former merely on the ground of their earlier joining date. Therefore, in accordance with P.S.C. recommendation another proposal to accord notional seniority to officers of other cadres recruited through regular BCS Examination 1982, like that of BCS (Admn) Cadre was placed before the Council Committee and the recommendation of the Council Committee on senior appointment, promotion and service structure was approved by the President on 11.10.1989. Therefore it was necessary that notional date of joining had to be worked out in order to make the seniority of the first BCS batch consistent with the BCS Seniority Rules, 1983 and hence the subsequent amendment as contained in sub-rule 3(g).
24. The argument of Dr. Kamal Hossain that amended provision of Rule 3(g) was not given retrospective effect and as such it was not applicable in the case of appellants and the respondents who were appointed in 1983 and 1984.
25. As a matter of fact there was no need to give retrospective effect to the amended provision of sub-rule 3(g) because the seniority position of the respondents was always above the appellants batch. Government always reserves the right to fix seniority according to existing rules and principles. Sub-rule 3(g) was nothing new as identical provision was already there in the general principle of the seniority, 1970. This incorporation in the BCS Seniority Rules 1983 was necessary to fulfil legal requirement as it has protected the seniority of all officers of all cadres belonging to first BCS examination not only of respondent Nos. 2-61. Therefore, sub-rule 3(g) was incorporated not only to give benefit to respondent Nos. 2-61. Further, the President is clearly empowered under the provision of Article 133 to make rules prospectively and retrospectively and in that view it cannot be argued that Rule 3(9) of Rule 1982 cannot apply retrospectively in the case of respondents who were appointed in 1984 and the appellants who were appointed in 1983 and Rule 3(g) was not applicable with retrospective effect in the case of the appellants and the respondents. It will also be seen that the dispute regarding seniority of the officers of 1982 regular batch and that of 1982 special batch having arisen after amalgamation in 1992, Rule 3(g) which came into operation in 1985 will apply in determining the seniority of the officers of these two batches and the question of giving retrospective effect of Rule 3(g) does not strictly arise.
26. In the case of Joynal Adedin and another Vs. Govt. of Bangladesh, 34 DLR (HCD) 77, clearly held that under Article 133 of the Constitution the Rules framed by the President will take effect both prospectively or retrospectively. Hence the argument of the learned Advocate of the appellants is also not tenable on this score.
27. From the materials on record it is not correct that the former BCS (Sectt) cadre was merged with the BCS (Admn) Cadre but a new cadre BCS(Admn) cadre was created by unifying these two cadres. This unification is not illegal as because it was done in exercise of power conferred by section 4 of the Service (Reorganization and Condition) Act, 1975 passed in accordance with the provision of Article 136 of the Constitution: Article 136 : Provision may be made by law for the reorganization of the service of the Republic by creation, amalgamation or unification of service such law may vary or revoke any condition of service of a person employed in the service of the Republic.”
28. Lastly, Dr. Kamal Hossain submitted that the amended Rule 3(g) of the BCS Seniority Rules 1983 is discriminatory and violative of the fundamental rights guaranteed in Articles 27, 29 and 31 of the Constitution.
29. In this regard it will be necessary to mention about the factual aspect of the matter.The correct position is that the appellants sat for a test of 300 marks only (100 marks psychological test and 200 marks viva voce) arranged by the Public Service Commission to recruit presonnel against 650 post of magistrates of fill up urgent vacancies created due to the introduction of upazila system and for this was distinctly different from the regular BCS Examination of 1600 marks which the respondents appeared and come out successful. PSC’s advertisement dated 22. 12. 82 under which the appellants were appointed clearly mentioned that their appointment was not to be considered as Placement in the Cadre direct.
30. The conditions in their offer of appointment (Annexure C) and the subsequent amendment of BCS (Seniority) Rules, 1983 (Annexure D) incorporating sub-rule 3(g) (Annexure E) are not at all contrary to the condition stipulated in the advertisement dated 22.12.82. The advertisement spelt out that the appellants, as usual, would not be entitled for placement in the BCS (Administration) Cadre straightway; because, the Government was fully aware that the test conducted for their recruitment was not in any view, a regular BCS Examination. This implications of the advertisement has been made clearer in the offer of appointment.
31. Articles 27 and 29 of the Constitution state that: Article 27: All citizens are equal before law and are entitled to equal protection of law; and Article 29 : (1) There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic. (2) No citizen shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of any employment or office in the service of the Republic.
32. The effect of unifying the two services and issuance of Notification dated 04.04.94 has in no way violated the fundamental rights of the appellants guaranteed under the above two Articles of the Constitution, as claimed by the appellants nor do they have any relevance whatsoever in the fact of the case.
33. Thus we find that the very basis of their entry in the service was not on equal footing and as such there is no violation of Articles 27, 29 and 31 of the Constiturion as argued by Dr. Kamal Hossain. 34. Dr. Kamal Hossain cited the case of state of Bihar Vs. Modon Mohan Sing, AIR 1974 SC 765. That was a case wherein candidates selected and recommended for appointment in order of merit against existing 32 vacancies and the list having been exhausted, it cannot be kept alive for filling up other vacancies. In that case, 32 vacancies are to be filled up and merit list was prepared of 129 candidates. As 32 vacancies were filled up the list came to an end. The same list cannot be kept pending for the purpose of filling other vacancies also as that would naturally deprive the right of other candidates who would have become eligible subsequent to the said advertisement and selection process. I am afraid this case has no relevance at all in the facts of the present case as because in the advertisement of our case in issue there was a clear stipulation that the vacancies are tentative and the Government reserves the right to increase or decrease the number of vacancies or to include or to exclude any kind of vacancies. The reported decision is a case where fixed number of vacancies were to be filled up and those having been recruited the list came to an end.
35. The case of Md. Abdul Mannan Vs. Md. Hassan Mahmud, 16 BLD (AD) 147 has no application in facts of the present case. In that reported decision the appellants were promoted as ASPs by Inspector General of Police without having any lawful authority on an officiating basis without recommendation of the Public Service Commission and the said appointment was not approved by the President. But here in the present case Government fixed the notional inter se seniority on the basis of a valid law passed by the President. Consequently this decision has no application in the facts of the present case.
36. For the foregoing reasons, the learned Administrative Appellate Tribunal correctly held that respondent Nos. 2-61 belong to the regular 1982 Batch and are fully covered by the notification dated 11.10.1989. They were given notional seniority with effect from 2.4.83 by virtue of the notification issued by the competent authority under the law. As a matter of fact, there is no scope for any confusion as to the inter-se-seniority between the appellants and respondent No. 2-61 and the respondents are senior in the service to the appellants.
37. In the result, the appeal in dismissed without any order as to costs.
Ed.
Source: IV ADC (2007), 396