Aminul Islam Vs. Mr. Tawhid Ahmed Siddique

Appellate Division Cases

(Civil)

PARTIES

Aminul Islam ……………………………..………………Appellant

-vs-

Mr. Tawhid Ahmed Siddique and others………………Respondents

JUSTICE

Md. Ruhul Amin. J

M. M. Ruhul Amin J

Md. Tafazzal Islam. J

JUDGEMENT DATE: 5th April, 2004

Rule 183(1) and Rule 184(1), Rule 184 (2) of the Service Rules, 1965 and Rule 19 of the Service Rules, 1982

The undisputed position is that the appellant and the Respondent Nos. 1-3 joined in the service of the Power Development Board (PDB) as Assistant Engineers and that while they were officiating as executive Engineers by the office order dated January 23, 1979 they were promoted as Executive Engineer and against their names effective date of their being promoted as Executive engineer was shown in the aforesaid office order…………………(6)

The Ministry of power, Fuel and Mineral Resources granting ante dated seniority to

the appellant was made in clear violation of the Rule 19 of the Service Rules, 1982……….. (8)

Assistant Engineer is to pass the Departmental Examination in Part-I before

promotion to the post to the Executive Engineer. The submissions so made appears

to be of merit …………………..(8)

Civil Appeal No. 581 of 2001. (From the Judgment and Order dated July 13, 1999 passed by the High Court Division in Civil Petition for Leave to Appeal No. 129 of 1999 [heard along with C.P. No. 52 of 1999])

Rafique-ul-Huq, Senior Advocate, (Khalilur Rahman, Advocate with him) instructed by Mvi. Md. Wahidulla Advocate-on record. …………..For the Appellant

Mahmudul Islam, Senior Advocate ( Probir Kumar Neagi, Advocate with him) instructed by Aftab Hossain, Advocate-on-record. ………………For Respondent Nos. 1-3

Ex-Parte………………… Respondent Nos. 4-7.

JUDGMENT

1. Md Ruhul Amin, J :- This appeal, by leave upon a petition for review, is directed against the judgment and order of July 13, 1999 passed in Civil Petition for leave to Appeal No. 129 of 1999 (heard along with C.P. No. 52 of 1999) dismissing the same. The aforesaid petitions for leave to appeal were filed against the judgment and order of October 25, 1998 by a Division Bench of the High Court Division in Writ Petition No. 7776 of 1997 making the Rule Nisi Absolute.

2. The Respondent Nos. 1-3 filed the aforesaid writ petition challenging ante-dated seniority granted to the appellant by the Memo. Dated December 14, 1996 of the Dhaka Electric Supply authority (DESA) in the rank of Executive Engineer with effect from 1.

3.1976 in pursuant to the Memo. Dated April 13, 1996 of the Ministry of Power, Fuel and Mineral Resources of the Government of Bangladesh and the Memo. Dated September 29, 1997 issued by the Dhaka Electric Supply Authority giving ante-dated seniority in the rank of Superintendent Engineer with effect from 1. 4. 1991 in pursuant to the Memo, dated 21.9.1997 of the Ministry of Power, Fuel and Mineral Resources of Government of Bangladesh.

3. The High Court Division on consideration of the materials brought on record by the

parties noticed that in the gradation list prepared in 1982 Respondent Nos. 1-3 were placed above the appellant. The Respondent Nos. 1-3 were promoted to the post of Executive Engineer with effect from 27.1.1977 and the appellant was promoted to the post of Executive Engineer with effect from November 30, 1977. The appellant represented to the Dhaka Electric supply Authority for re-consideration of his date of promotion .o the post of Executive Engineer. The Dhaka Electric Supply Authority on consideration of Rule 183(1) and Rule 184(1), Rule 184 (2) of the Service Rules, 1965

and Rule 19 of the Service Rules, 1982 and the office orders dated 18.8.1992 and 18.11.1995 rejected the prayer of the appellant seeking review of his seniority. The High Court Division held that the Respondent Nos. 1-3 and the appellant were governed by the Service Rules, 1965 and that as before coming into force of the Service Rules, 1982 Respondent Nos. 1-3 and the appellant were promoted, Rule 19 of Service Rules 1982 stands in the way of entertaining representation of the appellant as Respondent Nos. 1-3 had already acquired a vested right of seniority. This Division in rejecting the petition for leave to appeal filed by the appellant maintained the aforesaid findings of the High Court Division.

4. The appellant sought review of the order July 13, 1999 rejecting his application for leave to appeal. Leave was granted to consider the submissions that there is nothing in the judgment of this Division dismissing the petition for leave to appeal about the consideration of the case of the appellant and that the said omission is an error apparent on the face of the record necessitating the consideration of the order dated July 13, 1999.

5. To appreciate the contention raised by the learned Counsel for the appellant it is necessary to re-produce the provision of Rule 183 and 184 of the Service Rules, 1965, which runs as :”183. (1) All Assistant Engineers directly recruited by the Authority (Viz.

not including those promoted from the lower ranks) must pass the Departmental Examination in Part I within 2 years from the date of their appointment, in special cases, however, where owing to the exigencies of service or such other reasons as are beyond

his control, an officer has not been able to pass the Departmental Examination within the prescribed period the may at the discretion of the Commissioners/Director-General of

Services, be granted extension upto a maximum of one year. (2) Engineers who have already been promoted to the rank of Executive Engineer and have not passed the

examination in parti I. may be exempted from the passing of this examination on the recommendation of the commissioners/ Director General of Services. (3) In the event of an officer failing to pass the examination part I within the prescribed or extended period, he shall be liable to be discharged from service. 184. (1) Assistant Engineers

including those promoted from the lower ranks shall be required to pass the Departmental Examination in part II before they are permitted to cross the first E. B. Those engineers who have already crossed the first efficiency bar should pass the examination within 2

years from the date of this order, failing which their increments shall be stopped till they pass the necessary examination. (2) The Executive engineers who have been promoted or directly recruited but have not yet passed the Departmental Examination must pass

the Departmental Examination in part II before they are allowed to cross the Efficiency Bar and are considered for further promotion. (3) The increments withheld for failure to pass the examination in Part II as provided at Rule 184 (1) and (2) above, may with the sanction of the Authority be allowed with retrospective effect after the examination has

been passed.” and the Rule 19 of the Service Rules, 1982 which runs as : “19 Savings.-No claim for appointment or promotion of an employee based on the seniority determined according to these rules shall be entertained in such a way to affect adversely

on appointment or promotion already made before these rules come into force.”

6. The undisputed position is that the appellant and the Respondent Nos. 1-3 joined in the

service of the Power Development Board (PDB) as Assistant Engineers and that while

they were officiating as executive Engineers by the office order dated January 23, 1979 they were promoted as Executive Engineer and against their names effective date of their being promoted as Executive engineer was shown in the aforesaid office order. Effective date of promotion as Executive Engineer of the Respondent Nos. 1-3 was shown 27. 1. 1977 while effective date of promotion of the appellant as Executive Engineer was shown as 30. 11.1977. Gradation list of Chief Engineer down to Executive Engineers of the power Development Board was prepared in February 1982 and in the said list the Respondent Nos. 13 were placed at serial Nos. 109, 115 and 118 respectively and the appellant was placed at serial No. 128 . After publication of the gradation list new service Rule of the employees of the power Development Board was published in the Gazette on March 4, 1982 and the Rule 19 of the said rules provides that seniority of the employees of the power Development Board shall not be determined in such a way to affect

adversely on appointment or promotion already made before these rules come into force”.

7. The learned Counsel for the appellant submits that Rule 19 of the Service Rule, 1982

has no manner of application in respect of the order dated 13.4.1996 fixing seniority of the appellant on and from 1.3.1976 in the post of Executive engineer and the letter dated

14.12.1996 of the Dhaka Electricity Supply Authority (DESA) giving effect to the letter

dated 13.4.1996 of the Ministry of power. Fuel and Mineral Resources. The Ministry of Power, Fuel and Mineral Resources made The order granting antedated seniority to the appellant subsequent to the Gazette Notification of the Service Rules, 1982. On our reading of the provision of Rule 19 of the Service Rules, 1982 we are of the view that the said rule clearly provides that no order to be made after coming into force of the Service Rule, 1982 affecting adversely on appointment or promotion already made prior to the coming into force of the Rules, 1982. The order of the Ministry dated 13. 4. 1996 granting antedated seniority to the appellant was made in clear violation of Rule 19 of the service Rules, 1982. The contention of the learned Counsel for the appellant that the

provision of Rule 19 is referable to the appointment or promotion made under the Service

Rules of 1982 and only in the said case no order can be passed affecting the appointment or promotion. The submission so made appears to be not well founded since the provision of Rule 19 of Service Rules, 1982 clearly shows that no order is to be made affecting adversely promotion and appointment already made before coming into force of the Service Rules, 1982 . The other contention of the learned Counsel for the appellant that Government has restored the seniority of the appellant since the power Development board upon wrong impression that for promotion to the post of Executive Engineer from Assistant Engineer, the Engineer “must pass the departmental Examination in part I with in 2 years from the date of their appointment “deprived the appellant of his seniority . The learned counsel has submitted that Rule 183 (1) of the Service Rules 1965 has no manner of application in respect of the appellant and as such for promotion to the post of Executive Engineer appellant was not required to pass the departmental Examination

in Part-I and the appellant was required to pass Part-II as in Rule 184 for the promotion to the post of Executive engineer. The submission so made in our view is not well conceived on since on reading the rule 183 (1) along with Rule 183(3) we are of the view that for the promotion to the post of Executive Engineer, the engineer is to pass part-I and in the absence thereof he is not eligible for the promotion to the post of Executive Engineer. The provision as in rule, 1984 (2) relates to some other matter other than promotion of an Assistant Engineer to the post of Executive Engineer.

8. The learned Counsel for the Respondent Nos. 1-3 has submitted that it is not correct to

say that rule 183 (1) has nothing to do with the promotion of the Assistant Engineer to the

post of Executive engineer since it is implicit in Rule 183 (3) that an Assistant Engineer is to pass the Departmental Examination in Part-I before promotion to the post to the Executive Engineer. The submissions so made appears to be of merit. It may be mentioned that while the Respondent Nos. 1-3 and the appellant were officiating as Executive Engineer, they were promoted by the office order dated January 23, 1979 to the post of Executive Engineer with effect from the date mentioned against each of their names. In the aforesaid office order date of promotion of the Respondent Nos. 1-3 was

shown on 27. 1. 1977 and in respect of appellant the date of promotion as Executive

Engineer was shown on 30.11.1977 . Thereafter in February 1982 gradation list of

the Chief Engineer down to Executive Engineers was published and therein also date

of promotion of the Respondent Nos. 1-3 and the appellant was shown as mentioned hereinbefore. In the background of the said fact and view of the provision of Rule 19 of Service Rules, 1982 (published in the Gazette on March, 4 1982) the learned Counsel for the Respondent Nos. 1-3 has submitted that fixing of ante-dated seniority from 1.3.1976 by the letter dated 13.4.1996 of the Ministry of power, Fuel and Mineral Resources was clear violation of the Rule 19 of the Service Rules, 1982.We have already stated that order dated 13.4.1996 of the Ministry of Power, Fuel and Mineral Resources granting ante dated seniority to the appellant was made in clear violation of the Rule 19 of the Service Rules, 1982. In the background of our discussions made hereinabove we find no merit in the appeal. Accordingly the appeal is dismissed. There is no order as to costs.

Ed

Source: I ADC (2004), 306