Abdul Halim Miah (Md) and others Vs. Bangladesh

Abdul Halim Miah (Md) and others (Petitioners)

Vs.

Bangladesh represented by the Secretary, Ministry of Establishment and others (Respondents)

 

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin J

Mohammad Fazlul Karim J

MM Ruhul Amin J

MA Aziz J

Amirul Kabir Chowdhury J

Judgment

May 9, 2005.

The Supreme Court of Bangladesh (Appellate Division) Rules, 1988 Order XXIV

The Code of Civil Procedure, 1908 (V of 1908), Order XLVII rule 1

Review under Order XXIV of the Supreme Court (AD) Rules, 1998 or under Order XLVII, rule 1 of the Code of Civil Procedure cannot be a substitute of an appeal for rehearing of the Judgment and order passed in appeal on the same subject-matter for correcting the judgment. Review can only be done where there is an error apparent on the face of the record based on evidence or materials on record……..(30)

Cases Referred To:

Bangladesh vs. Azizur Rahman and others 46 DLR (AD) 19; Zenith Packages Ltd. vs. Member, Labour Appellate Court, Dhaka and others 52 DLR (AD) 160.

Lawyers Involved:

Abdul Wadud Bhuiyan, Senior Advocate, instructed by Fakhrul Islam, Advocate-on-Record—For the Petitioners (In Civil Review Petition Nos. 44, 45 & 51 of 2004).

TH Khan, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate on Record—For the Petitioners (In Civil Review Petition No. 50 of 2004).

AJ Mohammad Ali, Additional Attorney-General, instructed by Ahsanullah Patwary, Advocate-on-Record —For Respondent No. 1-9 (In Civil Review Petition No. 44 of 2004).

Mahmudul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record—For Respondent Nos. 13, 22, 23, 27, 28, 36, 37 and 71 (In Civil Review Petition No. 44 of 2004).

Not represented—Respondent Nos. 10-12, 14-21, 24-26, 29-35, 38-70, 71-79 (In Civil Review Petition No. 44 of 2004).

Mahmudul Islam, Senior Advocate (Probir Neogi, Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record—For Respondent Nos. 1-8 (In Civil Review Petition No. 45 of 2004).

Not represented—Respondent Nos. 9-79 (In Civil Review Petition No. 45 of 2004).

AJ Mohammad Ali, Additional Attorney-General, instructed by Ahsanullah Patwary, Advocate-on-Record —For Respondent Nos. 1-9 (In Civil Review Petition No. 50 of 2004).

Mahmudul Islam, Senior Advocate, (Probir Neogi, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record—For Respondent Nos. 13-14, 18, 19, 27-28, 62 (In Civil Review Petition No. 50 of 2004).

Not Represented—Respondent Nos. 10-12, 15-17. 20-26, 29-61, 63-83 (In Civil Review Petition No. 50 of 2004).

Not Represented—Respondents (In Civil Review Petition No. 51 of 2004).

Civil Review Petition Nos. 44 & 45 of 2004.

(From the judgment and order dated 4th May 2003 passed by the Appellate Division in Civil Appeal Nos. 69 and 71 of 2002).

With

Civil Review Petition Nos. 50 & 51 of 2004.

(From the judgment and order dated 4th May 2003 passed by the Appellate Division in Civil Appeal Nos. 70 and 72 of 2002).

Judgment

             Mohammad Fazlul Karim J.- Respondent Nos. 1-10 in the Civil Appeal being Nos. 69, 70, 71 and 72 of 2002 seek review of the judgment and order dated 4th of May 2003 passed by this Division allowing the appeals upon setting aside the judgment and order dated 17th of December 2000 of the High Court Division in Writ Petition No. 62 of 2000 (Civil Appeal Nos. 69 and 71 of 2002) heard with Writ Petition No. 5362 of 2000 (Civil Appeal Nos. 70 and 72 of 2002). The said appeals arose out of the same and single judgment and order of the High Court Division making the Rules absolute in Writ Petition Nos. 62 of 2000 and 5362 of 2000 declaring the impugned order in Memo dated 27-9-1998 Annexure-‘K’ issued by the respondent No. 1 and the impugned decisions under item Nos. 12 and 13 as adopted/taken at the meeting of the Standing Committee comprising of writ respondent Nos. 3, 5 and 6 on 2-6-1999 and 20-9-1999 contained in the, minutes (Annexure-‘M’) and of the gradation list issued and published by respondent Nos. 2 and 8 in the Bangladesh Gazette on 23-11-1999 placing writ-respondent Nos. 11-79 at serial Nos. 115 to 183 therein (Annexure-‘N’) and the remarks under clause 9 of the gradation list against the names of the writ petitioner-respondents unconstitutional, void and without lawful authority and further directing the writ respondent Nos. 1-10 to follow the final gradation list published on 1-10-1990 (Annexure-H) relating to the writ-petitioner-respondents and other writ respondents.

2. The facts relevant for disposal of these appeals are common as detailed in those writ petitions, inter alia, that the writ-petitioner Nos. 1 and 2 and writ petitioner Nos. 3-10 of Writ Petition No. 62 of 2000 were appointed on 30-9-76 and on 17-12-76 respectively and the writ petitioner Md. Abdus Salam of Writ Petition No. 5362 of 2000 was appointed on 17-12-76 as the Assistant Engineer (Civil) of Roads and Highways. All these appointments were on ad-hoc basis for six months or till regularisation of service by the Public Service Commission briefly, the PSC. This period was extended from time to time. The PSC published an advertisement on 30-3-1978 and in that advertisement it was mentioned that the Assistant Engineers of Roads and Highways Department who were appointed on ad-hoc basis, might apply for regularisation of their service. The writ petitioner No. 1 Md Halim Miah of Writ Petition No. 62 of 2000 and the writ petitioner Md Abdus Salam of Writ Petition No. 5362 of 2000 applied for regularisation of their service. Subsequent advertisement of similar nature was made by the PSC on 1-4-78 and the writ petitioners Nos. 2-10 of writ petition No. 62 of 2000 applied for regularisation of their service. All the writ petitioners thereby made their first appearance at the interview before the Public Service Commission on those dates and came out successful. Because of their success at their first appearance before the commission, the service of all writ petitioners were regularised on 9-3-1979. The Government, on the recommendation of the Council Committee and in consultation with the PSC, issued a Memorandum dated 22-4-1984 (Annexure-K-2) providing that seniority of ad-hoc appointees, after regularisation, would be counted from the date of their ad hoc appointment. The ad hoc appointments of the writ-petitioners and others were quite different from the ad hoc appointments made before 1972 and regular scales of pay, yearly increments and efficiency bar crossing were allowed to them from the very beginning and the period of appointment was extended far beyond six months and thereby clearly indicating that the appointments of the writ-petitioners were in fact quasi-permanent. The memo of the Establishment Division dated 23-8-73 in its paragraph 3 provided that besides the appointment mentioned in Regulations 39 and 40 of the PSC the Government decided that all appointments under the Government of Bangladesh shall be made on ad-hoc basis till decision of the Government on the report of the Administrative and Service Re-organisation Committee and the repatriation of Bangladeshi employees stranded in Pakistan. The paragraph 4 of the aforesaid memo further provides for regular yearly increments.

3. A meeting of the council committee was held on 16-11-85 (vide Annexure-D) wherein the matter of counting of ad-hoc service was discussed and it was pointed out that the ad-hoc appointees who, after such appointment did not apply or appear at the interview before the Public Service Commission and were not removed from service by the concerned Ministry and Department, the benefits of their service cannot be denied to them as it was decided in the circular dated 22-4-84 (Annexure-K2) which remained in force being unchanged. The question of giving seniority to the ad-hoc appointees was considered in a subsequent meeting held on 26-11-88 by the Public Service Commission wherein it was decided that if the ad-hoc appointees had appeared at the interview with outside candidates when applications were invited, after ad-hoc appointment for filling up the said posts and the ad-hoc appointees could not become successful at the interview before the Public Service Commission, their seniority would be counted from the dates of their regularisation later on and others seniority would be counted from the date of their ad-hoc appointment. The Public Service Commission, the Ministry of Communication and the Department of Roads and Highways made enquiries for a long time but did not find evidence of the failure of the writ petitioners before the PSC and accordingly the PSC by the letter dated 22-9-86 (vide Annexure-F) requested the Ministry of Communications to obtain an undertaking from the ad-hoc appointees who did not fail at any interview before the PSC. The writ petitioners gave undertakings that they did not fail at any interview before the PSC. Thereafter the names of the writ petitioners along with others, who became successful, were sent to the standing committee in early part of 1989 for placement of their names at the appropriate place of the gradation list for finalisation. Accordingly, the Standing Committee at its meeting held on 10-4-89 finalised the question of seniority of the writ petitioners and other ad-hoc appointees and final gradation list was published in Bangladesh Gazette on 1-10-1990 (Annexure-H) wherein the seniority of the writ petitioner-respondents were counted from the date of their ad-hoc appointments.

4. In the meantime Ad-hoc Service Counting (Seniority Determination) Rules, 1990 was published in Gazette Notification dated 8-11-1990 (vide Annexure-K) and the relevant provisions of Rule 4 are quoted below:

4. Jeshthota nirdharone kotipoyo kormokortar ad-hoc chakurikal gonona- (1) nimnobornito kormokortar jeshthota nirdharone tahader ad-hoc chakurikal ei bidhimalar bidhan onujayi gonona kora hoibe, jotha:

(a) 9th April, 1972 er purbe kono pode ad-hocbhittik nijukto hoiya ukto tarikh ebong 12th May, 1983 er  modhhe je kono shomoy akii pode niyomitobhabe nijukto kono kormokorta.

(b) 9th April, 1972 hoite 12th May, 1983 porjonto shomoyshimar modhhe kono pode ad-hocbhittik nijukto  hoiya ukto shomoyshimar modhhe kono shomoy akii pode niyomitobhabe nijukto kono kormokorta.

(2) upo-bidhi (1) e jaha kichui thakuk na keno, nimnobornito bektigon ukto upo-bidhite ullekhito shubidha paiben na, jotha:-

(a) ad-hocbhittik nijukto howar shomoy shongslishto poder jonno procholito niogbidhi ba niog nitimalar shorto motabek nijukto hon nai emon kormokorta;

(b) uktorupe nijukto howar shomoy shongslishto poder jonno shikhhagoto joggota chilona emon kormokorta,;

(c) uktorupe nijukto howar por hoite niyomitobhabe nijukto howar shomoy porjonto akii pode chakurir dharabahikota rokhha korite paren nai emon kormokorta.

(d) niyomitobhabe nijuktir jonno commission kortrik porichalito porikhha ba shakhhatkar e prothombar e uhar shuparish labh e bertho hoiachen emon kormokorta.

5. According to the said Rule 4(1), the ad-hoc appointees who were appointed on ad-hoc basis from 9-4-72 to 12-5-83 and were regularised during this period, would count their seniority from the dates of their respective appointment on ad hoc basis. The ad-hoc appointees appointed between 9-4-72 to 12-5-83 and regularized in service within this period would count their seniority from the date of their ad hoc appointment with the exception that the ad-hoc appointees who failed to get recommendation by the PSC for regularisation in the first time shall not be entitled to claim seniority from the date of the ad-hoc appointment as provided in rule 4(2)(Gha). The seniority of the writ petitioners was thus counted from the date of their ad hoc appointments from 30-9-76 and 17-12-76 respectively. Because of the writ petitioner’s success at the first appearance in the interview before the Public Service Commission between the period from 9-4-72 and 12-5-83 they are similarly situated and all of them are entitled to have their seniority counted from the date of their ad-hoc appointment and no discrimination can be made with others.

6. The Ministry of Establishment vide its memo dated 30-12-90 (Annexure-B) gave its interpretation to Rule 4(2)(Gha) of Ad-hoc Service Counting Rules, 1990 which runs thus :

“dhara: (2)(Gha) e bola ache ad-hoc tarikh hoite jeshthota gonona korar shubidha taharai paiben na jahara onnanno shortabolir modhhe niyomitobhabe nijuktir jonno commission kortrik porichalito porikhha ba shakhhatkar e prothombar e ihar shubidha labh e bertho hoiachen emon kormokorta. Ei prothom bar bolite niyomitobhabe nijuktir jonno commission kortrik porichalito porikhhar/shakhhatkarer madhhome shongslishto prathi j porikhhay ba shakhhatkar e prothom uposthit hoiyachilen, sheitai tahar jonno prothom porikhha/shakhhatkar hishabe gonno hoibe ebong ukto porikhhay/shakhhatkar e kritokarjo hoilei tini adhoc niyoger tarikh hoite jeshthota paiben.”

7. The Ministry of Establishment thus interpreted Rule 4(2)(Gha) stating that first interview faced by an ad-hoc appointee will be, for him, the first time mentioned in Rule 4(2)(Gha) and the same was re-iterated on 18-9-94.

8. By Annexure-C dated 1 8-9-94 the Ministry of Establishment gave its opinion re-iterating the earlier position vide Annexure-B dated 30-12-90. The memo dated 18-9-94 reads as follows:

“adhoc chakuri gonona (jeshthota nirdharon) bidhimala 1990 er 4(2)(Gha) bidhi shomporke otro montronaloyer 0-12-90 ing. Tarikher sharok marfot e prodotto motamotii jothartho. Tobe kono kormokorta PSC porikhhay hajir hoye uttirno na hoye thaken she khetre tini ukto bidhir aotay adhoc niyoger tarikh hoite jeshthota paben na”.

9. After about 8 (eight) years from 30-12-90 the Ministry of Establishment gave its impugned interpretation on 27-9-98 to Rule 4(2)(Gha) of Ad hoc Service Counting Rules, 1990 stating that ‘first time’ means the ‘first interview’ held by the PSC after the ad-hoc appointment and not the first interview attended by the ad-hoc appointee and following the wrong interpretation a gradation list has been published in the aforesaid Gazette on 29-11-90 depriving the benefit of the said Ad-hoc Rules, 1990. The same was done after the decision given by the Appellate Division in Civil Appeal Nos. 44, 45, 46, 47, 48, 49, 62, 63, 76 and 77 of 1992 and the decision given by the High Court Division in Writ Petition No. 316 of 1995 at the instance of the Executive Engineer of Jamuna Bridge Access Road Project without any reasons or justification by letter dated 8-9-1998 (Annexure-J), R & H requested the Ministry of Establishment to give further interpretation of Rule 4(2)(Gha) of Ad-hoc Service Counting Rules, 1990.

10. The Ministry of Establishment, contrary to the decision of the Appellate Division in Civil Appeal Nos. 44, 45, 46, 47, 48, 49,.62, 63, 76 and 77 of 1992 and of the High Court Division in Writ Petition No. 316. of 1995 and in disregard of the interpretation given by it on 30-12-1990 reiterated the same as aforesaid on 18-9-94, by the impugned order of interpretation dated 27-9-98, the vested rights of seniority of the writ petitioners recognised in the gradation list published in Bangladesh Gazette on 1-10-1990 and all other rights enjoyed by them from the date of ad-hoc appointment since 30-9-1976 have been affected.

11. The impugned order on 27-9-98 (Annexure-K-I) containing its interpretation of Rule 4(2)(Gha) runs as follows:

“uporokto bishoy o shutrer borat e nirdeshkrome janano jachhe j, adhoc bhittik niyojito podke shunno gonno kore niyomitobhabe niyoger jonno grihito porikhhay ongsho grohonei prothombare ongshogrohon bujhabe, adhoc niyojito podgulo puron hoye gele akii bektir guruttokrito poder biporit e ditiyo bar porikhay ongshogrohoner shujog thake ba pod puron baki thakle she pode niyog niyog porikhhay ongshogrohon hishebe gonno hobena. Adhoc niyoger shorto onujayii adhoc bhittik niyogkrito shokol shohokari prokousholider civil niyoger por kormo commission kortrik onushthito prothombar porikhhay ongshogrohon badhhotamulok chilo bole protiyoman hoy. Je shob kormokorta prothombar grihito porikhhay ongshogrohon korenai tara adhoc chakuri gonona (jeshthota nirdharon) bidhimala 1990 er 4(2)(Gha) motabek jeshthota paben na. shongslishto gradation talikay konorup shongshodhoner bishoye proshashonik montronaloy shorkari kormocommissioner standing committee er motamot nite paren”.

12. The writ petitioners were not aware of the said order dated 27-9-98 for a long time as it was issued without giving any notice to them and other officers whose vested rights have been taken away.

13. Having come to know of the aforesaid impugned order of interpretation Md Abdul Halim Miah and Md Abdus Salam, the respondents made representations to the Chairman, Standing Com­mittee and Member, Public Service Commission and also to the Ministry of Establishment but without any result.

14. At the meetings, presided over by the Mem­ber, Public Service Commission and Chairman, Standing Committee and attended by the represen­tatives of the Ministry of Establishment and Ministry of Communications held on 2-6-2000 and 20-9-99 decisions were taken which run as follows :

“prothombar onushthito (1977 shale) porikhhay kritokarjo 139 joner paroshporik jeshthota adhoc chakuri gonona (jeshthota nirdharon) bidhimala 1990 er aotay nirdharito hobe. 1979 shale onushthito porikhhay kritokarjo 19 jon kormokorta adhoc chakuri gonona (jeshthota nirdharon) bidhimala er bornito adhoc niyoger shubidha paben na, jader jeshthota PSC(1st) kortrik shuparish mote (1979 shaler) onnanno 74 joner shonge peshar bhittite nirnoy kora hobe.

Uporokto porjalochona, porjobekhhon o shidhhanter poriprekhhite BCS (shorok o janapath) cadre (civil) er 246 jon kormokortar songshodhito jeshthota talika standing committer shodoshhogoner onumodon shapekhhe pronoyoner jonno shongslishto montronaloyke kortritto deya hoy. Oddokar shobhar shidhhanter poriponthi kono shidhhanto standing committer itopurbekar kono shobhay grihito hole ta batil bole gonno hobe”.

15. A gradation list of the Engineers of Roads and Highways Department was published in the Bangladesh Gazette on 1-10-1990 (Annexure-H) counting the seniority of the writ petitioners from 30-9-76 and 7-12-76 when they were respectively appointed on those dates on ad-hoc basis and since 30-9-76 and 7-12-76 they have been enjoying all the benefits of service including pay and allowances including EB crossing in the same posts. By this time all the writ petitioner-respondents were promoted to the post of Executive Engineer on 31 -8-97, seniority having been counted from the date of their ad-hoc appointment on 30-9-76 and 7-12-76 and they have enjoyed the benefits for the last 8 years. Now the Ministry of Establishment has passed the impugned order dated 27-9-98 (Annex-ure-Kl) interpreting Rule 4(2)(Gha) of the Ad-hoc Service Counting Rules 1990 and consequently, standing committee has taken the impugned decisions as contained in the minutes of the meeting held on 2-6-1999 and 20-9-1999 (Annexure-H) and published a revised gradation list of the officers of BCS (Roads and Highways) Cadre in the Bangla­desh Gazette on 23-11-1999 (Annexure-N) which allegedly affected the vested right of the petitioners’ seniority on their first appearance before the PSC.

16. That the ad hoc appointees who did not appear at any examination before the Public Service Commission were regularised under the Regularisation of ad hoc Appointment Rules, 1983 and were given seniority from the date of their ad-hoc appointment and the writ petitioner-respondents who appeared before the Public Service Commis­sion and became unsuccessful at the first appear­ance in the interview are now intended to be deprived of their seniority from the date of his ad hoc appointment and thus the writ petitioner-respondents have been treated unequally and are being discriminated against and therefore, the impugned order (Annexure-KI) and impugned decision contained in the minutes (Annexure-M) have infringed the fundamental rights of the writ petitioners guaranteed under Articles 27 and 29 of the Constitution and are liable to be struck down.

17.  The   appellants   as   also   some   writ respondents contested the rules supporting the impugned orders on common grounds stating that the Public Service Commission held the first examination in 1977 by making advertisement on 10-3-1977 and regular appointments were given on 6-8-1977 to those of the ad-hoc appointees who got the recommendation of the PSC. The ad-hoc appointees who failed to get recommendation from the PSC at the first opportunity by appearing in the examination in 1977 for regular appointment cannot get the benefit of Rule 4(1) in view of the provision of Rule 4(2)(Gha) of the Ad-hoc Service Counting (Seniority Determination) Rules, 1990; and that the seniority of the writ petitioner- respondents have been determined as per Rule 4(2)(Gha) of the Service Counting of Determination of Seniority Rules, 1990 who were wrongly given the benefit of their ad-hoc services in the gradation list of 1990. The interpretations given by the Ministry of Establishment in 1990 and 1994 were wrong and the mistakes have been rectified by giving a correct interpretation in 1998 and the gradation list of 1999 has been correctly made and there was no valid reason for challenging the order vide memo dated 27-9-1998 (Annexure-K1) of the Ministry of Establishment since the writ petitioners failed to get the recommendation from the PSC at the first opportunity in the examination held by the PSC, could not claim any benefit under the said Service Rules as the impugned order Annexure-K is not inconsistent with the laws enunciated in the decision dated 28-10-1993 reported in 46 DLR (AD) 19 in the case of Bangladesh vs Azizur Rahman and others. The writ-respondents further contended that the impugned order and the subsequent consequential orders are in no way violative of the fundamental rights inasmuch as the respondents having not challenged the vires of the rules, the grievances of the respondents being regarding seniority in the service, the writs are not maintainable in view of the provision of Article 117(2) of the Constitution. The Government having advertised on 2-3-77 for appointment as Assistant Engineer and the ad-hoc appointees not appearing before the Public Service Commission for regularisation of the service and thus failed to get the recommendation at the first opportunity. It is also an admitted fact that the writ petitioners actually applied for regularisation pursuant to the subsequent advertisement by the PSC on 30-3-78 for regularisation of the ad-hoc appointees and also who did not appear at the first examination and get the recommendation were not entitled to seniority from the date of their ad-hoc appointments as per Rule 4(2)(Gha) of the said Rules of 1990.

18. This Court granted leave to consider the submissions of the learned Additional Attorney-General and the learned Counsel appearing for the appellants that the seniority of the writ petitioners having been determined as per Rule 4(2)(Gha) of the Service Counting Determination of Seniority Rules 1990 and the said petitioners not having challenged the  said Rules  as  ultra  vires  the Constitution and the grievances raised in the writ petitions are regarding seniority in the service, the High Court Division erred in law in not holding that the writ petitions are not maintainable. The learned Counsels further submitted that the Government having advertised on 2-3-1977 for appointment of Assistant Engineer in the Roads and Highways Department and the writ petitioners having not appeared before the Public Service Commission in response thereto for regularisation of their ad-hoc appointments, were not entitled to seniority from the date of their Ad-hoc appointment, the High Court Division erred in law in “treating the writ petitioner’s first appearance in 1978 as compliance of Rule 4(2)(Ga) of Rules of 1990. The learned Counsels further submitted that in view of the interpretation given to Rule 4(2)(Ga) of the Ad-hoc Service Counting Rules, 1990 in Writ Petition No. 3530 of 1998 duly upheld in Civil Petition No. 105 of 2000 by this Court, the instant decision being contrary thereto requires to be interfered with.

19. The said appeals were allowed setting aside the impugned judgment and order making the Rules absolute holding that the writ petitions are not maintainable inasmuch as the impugned order in the Writ Petition dated 27-9-1998 and the impugned decision in the writ petition adopted at the meeting of the Standing Committee dated 2-8-1999 and 20-9-1999 containing minutes and of the gradation list published in the Gazette dated 23-11-1999 placing the writ-respondent Nos. 11-79 in serial Nos. 115-183 and the remark in clause (9) in the gradation list did not suffer from any illegally or infirmity for any interference.

20. Mr. Abdul Wadud Bhuiyan, the learned Counsel appearing for the petitioners, submitted that this Division consisting of 3 (three) Judges’ Bench illegally did not follow the decision of the 5 (five) Judges’ Bench of this Division reported in 46 DLR (AD) 19 contrary to the principle of the doctrine of binding precedent requiring that a judgment of the larger Bench should not be overruled or differed from by a co-ordinate Bench of three Judges and as such the impugned judgment and order are required to be reviewed. The learned Counsel has further submitted that writ petitioner Nos. 1-10 in Writ Petition No. 62 of 2000 out of which Civil Appeal No. 69 of 2002 arose, writ respondent Nos. 15, 16, 30, 32, 37, 44, 46, 47, 53 and 60 and Abdul Muktadir appellant in Civil Appeal No. 71 of 2002 was respondent No. 36 in Writ Petition No. Ill of 1991 out of which Civil Appeal No. 45 of 1992 arose which were disposed of along with other appeals by the Appellate Division by a judgment and order dated 28-10-1993 reported in 46 DLR (AD) 19 and that the facts of the case in Writ Petition No. 62 of 2000 were the same as in Writ Petition Nos. 4 of 1991 and HI of 1991 and the issue decided in Civil Appeal Nos. 44 of 1992 and 45 of 1992 was whether the Assistant Engineers appointed on Ad-hoc basis between the period 9-4-1972 and 12-5-1983 and regularised at any time during the period in the same post were entitled to count their seniority from the dates of their ad-hoc appointments and the same has been decided again in Civil Appeal No. 69 of 2002 but the same issue cannot be decided in Civil Appeal No. 69 of 2002 as the same is barred by principles of res-judicata and estoppel by judgment and therefore, the judgment in Civil Appeal No. 69 of 2002 ought to be reviewed to consider the application of the principles of res-judicata to the later decision on the same issue in Civil Appeal No. 69 of 2002. The learned Counsel further submitted that the learned Judges of the Appellate Division while deciding the case of Government of Bangladesh vs. Md Abdul Halim Miah and others being Civil Appeal No. 69 of 2002 did not follow the precedent laid down in the case reported in 46 DLR (AD) 19 wherein it was held that the ad-hoc appointees appointed during the period from 9-4-1972 and 12-5-1983 and regularised at any time during this period in the same post would count their seniority from the dates of their ad-hoc appointment and did not consider the binding effect of the decision of a larger Bench and thus commit­ted an error of law apparent on the face of the record in taking a decision contrary to the earlier decision of a larger Bench and therefore, the present judgment ought to be reviewed to consider the question of doctrine of precedence and the binding effect of the decision of a larger Bench of the Appellate Division of the Supreme Court. The learned Counsel further submitted that this Division committed an error of law in its interpretation of Rule 4(2)(Gha) of the Ad-hoc Service Rules con­trary to the provision of Ad-hoc Appointees (Determination of Seniority) Rules 1990, inasmuch as the interpretation was given without considera­tion of the underlying policy of the Rules and objects sought to be achieved by the Rules which were framed to give statutory backing to the circular dated 22-4-1984, decisions of the meeting of the Council Committee held on 16-11-1985 and the decision taken in the meeting of the Public Service Commission held on 26-11-1988 in which clear decisions were taken of the question of as to who will be entitled to count their ad-hoc service for the purpose of seniority and the Rules having been framed on the combined principle of circular 22-4-84 and the decisions taken in the meetings dated 16-11-1985 and 26-11-1988 and the letter dated 14-1-1990 of the PSC to give statutory backing to the circular and decisions, and the letter as aforesaid, the interpretation of Rule 4(2)(Gha) by the Appellate Division being inconsistent with the objects of the Rule is erroneous on the face of the record and therefore, the judgment ought to be reviewed.

21. Mr. TH Khan, the learned Counsel appearing for the petitioner in Civil Review Petition No.50 of 2004, submits on behalf of the writ peti­tioner-respondents that the ad-hoc appointments in these cases were of different nature inasmuch as the ad-hoc appointments generally are made on the basis of lump-sum salary, but this Court observed that this distinction is not relevant as the writ- Petitioners are claiming seniority on the basis of Ad-hoc Rules of 1990 which were made for the benefit of ad-hoc appointees of the specified period and the exception of Rule 4(2)(Gha) is equally applicable to them. The learned Counsel further submitted that this Court in Civil Appeal No. 70 of 2002 referred to the case of Bangladesh vs Md Azizur Rahman reported in 46 DLR (AD) 19 and observed that in that case the writ petitioners therein being certain Assistant Engineers of Bangladesh of different cadre services, namely, Roads and Highways, Public Works and Public Health challenged the vires of the Bangladesh Ad-hoc Appointees (Counting and Determination of Seniority) Rules, 1990 as ultra vires of Article 27 and 29 of the Constitution as under the said Rules seniority of the Ad-hoc appointees is to be counted from the date of their regular appointment on the basis of recommen­dation of the Public Service Commission.

22. Mr. Mahmudul Islam, the learned Counsel appearing for the respondents, submitted that the review petition is not maintainable as the petitioner has not touched the maintainability issue or that the learned Counsel as well could not repel the reasons assigned thereto holding the writ petition not maintainable  and the learned Counsel  further submitted that the decision is not on any issue   in conflict with the decision reported in 46 DLR (AD) 19, inasmuch as the ratio decidendi of both the cases is not the same for holding that the doctrine of binding precedent is applicable in the matter of disposal of the instant appeal, out of which the present review petitions arose.

23. In the reported case of Bangladesh vs Azizur Rahman this Division found the classifi­cation made in Rule 4(1)(Ka) to be lawful and constitutional but held that the classification made in Rule 4(1)(Kha) to be discriminatory and, as such, violative of Articles 27 and 29 of the Constitution. Similarly, rule 5(2) giving seniority to ad-hoc appointment and not from the regular appointment adversely affecting writ petitioner’s right to equal opportunity was declared unconstitutional. Under the Rules the ad-hoc appointees were divided into two classes, one under Rule 4(1) (Ka) i.e., those who were appointed at any time before 9th April, 1972 on ad-hoc basis but were regularised at any time by 12th May, 1983 and the others under rule 4(1)(Kha) i.e. those who were appointed an ad-hoc basis from 9th April, 1972 to 12th May 1983 and were regularised during this period. Rule 5(1) provided that the officers of the first category would count their seniority from 9th April, 1972 and rule 5(2) provided that the officers in the 2nd category would count their seniority from the dates of their respective appointments on ad-hoc basis. The Appellate Division while allowing the appeal in the aforesaid decision found that:

“The main ground of the classification is to do justice to a larger number of ad-hoc employees appointed during this period as a matter of policy as well as of necessity, by giving benefit of continuous ad-hoc service and this benefit has been equally given to both the writ petitioners and the respondents. So, the doctrine of severeability is not applicable to their case as it is same to others.”

24. This Division in the case of Bangladesh vs Md Azizur Rahman reported in 46 DLR (AD) 19 comprising of Mr. Justice Shahabuddin Ahmed, CJ, Mr. Justice MH Rahman, Mr Justice ATM Afzal, Mr. Justice Mustafa Kamal and Mr. Justice Latifur Rahman (as their Lordships were then) held the impugned rules being Ad-hoc Appointment (Counting and Determination of Seniority) Rules, 1990 to be constitutionally valid. In the said decision the writ-petitioners challenged rule 4(1) (Ka) and (Kha) and 5(2) of the said Rules. The High Court Division, however, held that the rule 4(1) (Kha) to be violative of Articles 27 and 29 of the Constitution but the appeal against the said judgment was allowed.

25.  The said decision has considered that the Rules impugned in the writ petition were not violative of Articles 27 and 29 of the Constitution and that the classification made in Rule 4(1)(Ka) and (Kha) have not violated Article 27 and 29 of the Constitution and that the Rule 5(2) giving seniority to ad-hoc appointees  from the date  of ad-hoc appointment and not from the date of regular appointment has adversely affected the fundamental right to equal opportunity for employment or office in the service of the Republic and also held that the impugned classification is not discriminatory or arbitrary and cannot be held violative of Article 27 of the Constitution and in paragraph 31 of the said reported decision though passingly mentioned about Rule 4(2) (Ga) which is the subject matter of interpretation in these rules but no decision was given therein and in the circumstances of the case was left open in the said decision as under:

“Lastly, Mr Ishtiaq Ahmed has cited a few cases in which some of the ad-hoc appointees, who did not appear before the PSC at all but were regularised under the Regularisation Rules of 1983, have been granted seniority from the date of their ad-hoc appointments. This, the learned Counsel contends, contravenes Rule 4(2) (gha) of the impugned Rules. Rule 4(2) (gha) provides that those ad-hoc appointees who failed to get a recommendation from the PSC “at the first opportunity” stand excluded from the benefit of seniority from the date of ad-hoc appointments. The learned Counsel argues that those who did not appear before the PSC come under this category that is, those who failed to get a recommendation of the PSC. But the learned Additional Attorney-General wants to restrict sub-clause (Gha) only to those ad-hoc appointees who appeared before the PSC but failed to get a recommendation at the first chance and that those who could not appear before the PSC due to circumstances beyond their control were intended to be excluded from the purview of sub-clause (Gha). Mr TH Khan argues that the interpretation of this sub-clause (Gha) has been left undecided by the High Court Division and, as such, this need not be interpreted in these appeals, particularly when its interpretation depends upon factual determination of certain question. He has also argued that a case in respect of this very question is still pending before the Administrative Tribunal. In all these circumstances I would leave this question open.”

26. In the instant case, however, the writ petitioner impugned the Memo dated 27-9-1998 (Annexure-K-1 issued by the writ-respondent No. 1) and the impugned decision under item Nos. 12 and 13 as adopted/taken at the meeting of the Standing Committee comprising of writ respondent Nos. 3, 5 and 6 on 2-6-1999 and 20-9-1999 contained in the minutes (Annexure-M) and the gradation list issued and published by writ respondent Nos. 2 and 8 in the Bangladesh Gazette on 23-11-1999 placing writ-respondent Nos. 11-79 in serial Nos. 115 to 183 therein (Annexure-N) and the remarks under clause 9 of the gradation list against the names of the writ petitioners to be unconstitutional, void and without lawful authority and further for directing the writ respondent Nos. 1-10 to follow the final gradation list published on 1-10-1990 (Annexure-H) relating to the writ petitioner and other writ respondents.

27.  Mr TH Khan, the learned Counsel appearing for the petitioners, has, however, conceded to the fact that the Rules are not under challenge in this writ petitions but the explanations or the interpretation given to the Rules dated 27-9-1998 being contrary to earlier interpretations or explanations given on 30-12-1990 and 18-9-1994 being contrary, has been made the subject-matter of these rules in respect of selfsame rules and consequently, the writ-petitioner has been affected thereby. The challenge regarding classification and the doctrine of severeability were considered and that the interpretation of rule 4(2)(gha) by order dated 27-9-1998 which are allegedly contrary to the interpretation of the selfsame Rule given on 30-12-1990 and 18-9-1994 was considered in the appeal. This Court on consideration of decision in 46 DLR (AD) 19 and the provision of Ad-hoc Rules 1990 come to the finding that:

“In view of the above, even on merit of the case as discussed above, there is no violation of any fundamental right as alleged and the High Court Division acted illegally in declaring the impugned order dated 27-9-1998 and conse­quent impugned order in the writ petition for declaring the same to be unconstitutional as void and without any lawful authority.”

28.  Accordingly, in the facts of the present case, the doctrine of binding precedence and the binding effect of the decision of the Larger Bench as well have no relevance and could not be the subject of interference on that count.

29.  In view of the submissions put forward by the learned Counsel for the parties and our finding in the impugned judgment in Appeal, we do not find any merit in the review applications. Accordingly, the same are liable to be dismissed.

30. Before we part with, this is to be remembered that ‘Review’ under Order XXIV of the Supreme Court of Bangladesh (Appellate Division) Rules 1988 or under Order XLVII, rule 1 of the Code of Civil Procedure is subject to law and rules but could not be a substitute of an appeal for re­hearing on the impugned judgment and order passed in appeal and for correcting the same unless there is an error apparent on the face of the record based on evidence or material on record. The submissions of the learned Counsel for the petitioners were available at the time of hearing of the appeals and most of the submissions were made therein and have been answered in the impugned judgment.

31.   ‘Error apparent on the face of the record’ has been considered by this Court in the case of Zenith Packages Ltd vs Member, Labour Appellate Court, Dhaka and others reported in 52 DLR (AD) 160, wherein it has been held, inter alia, that:

“In view of the aforesaid findings, the grounds upon which review of the judgment is sought have already been decided. A wrong decision on interpretation of certain provision of law or principle laid down in a decision relied upon by a Court are no grounds for review “Error apparent on the face of the record” cannot be said to be so where a lengthy argument is advanced to explain such expressions as is argued by the petitioner. Therefore, on the grounds urged for review of judgment by the petitioner, it seems to us that we are asked to sit over our judgment by way of appeal in a circuitous way addressing lengthy and repeated submissions which already received our due notice in the judgment sought to be reviewed.”

These petitions are, accordingly, dismissed.

Ed.

Source:12 MLR (AD) 2007, 209