Azizul Haque Sikder and others (Petitioners)
Vs.
Collector of Customs, Chittagong and others (Respondents)
Supreme Court
Appellate Division
(Civil)
JUSTICES
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md Abdur Rouf J
B B Roy Choudhury J
Judgment :March 27th, 1997
Services (Re-Organisation and Conditions) Act (XXXII of 1975)
Section 3 & 5
The appellants argument that by receiving the same scale of pay the preventive officers and appraisers have become members of the same grade with effect from 26-6-83 and therefore, the Preventive Officers became senior as a class to those who have been appointed directly as Appraisers after 26-6-83 cannot be accepted for the simple reason that these two classes of officers are graded differently and these post have not been treated as equivalent posts, although they are drawing the same scale of pay. (8)
Lawyers:
Abdur Rab Chowdhury, Senior Advocate instructed by Md Nawab Ali, Advocate-on-Record- For the Appellants.
Mainul Hosein, Advocate, instructed by Nil Khandker, Advocate-on-Record — For Respondent Nos. 5 and 19.
Mahmudul Islam, Senior Advocate, instructed by Md Altaf Hossain, Advocate-on-Record — For Respondent No. 33.
Civil Appeal No. 45 of 1995.
(From the Judgment and order dated 29-9-93 passed by the Administrative Appellate Tribunal Appeal No. 74 of 1993)
JUDGEMENT:
Latifur Rahman J: This appeal by the twelve appellants who are Appraisers, Custom House, Chittagong is from the judgment and order dated 29-9-93 passed by the Administrative Appeal Tribunal in Appeal No. 74 of 1991 dismissing the appeal and upholding the judgment and order dated 12-9-91 passed by the Administrative Tribunal, Dhaka in AT Case No. 77 of 1990.
2. The present appellants in the said AT Case asked for a declaration that the gradation list of the Appraisers published by the Collector of Customs Chittagong on 26-11-88 was illegal and unlawful They claimed that as per memo of the Board of Revenue dated 21-6-77 and as per the Principal Appraisers and Appraisers (Customs Department) Recruitment Rules, 1980 introduced by SRO dated 18-12- which was subsequently amen by an SRO dated 3-1-83 certain percentage of Appraisers are to be recruited by direct recruitment and certain percentage by promotion from amongst the Preventive Officers at all times, the proportion varying at various stages. The petitioners were all Preventive Officers who joined their posts on various dates in 1965. Only appellant No. 2 was transferred as a Preventive Officer and appellant Nos. 10, 11 & 12 were promoted as Preventive Officers. They contended that from 1977 to 1986 there was direct recruitment of 35 officers but the vacant posts of Appraisers were not filled up by promotion. The appellants were promoted as Appraisers in 1986. It is their case that they would be deemed to have been promoted to the posts of Appraisers in the years in which the promotion quota was to be filled up because there is provision for both direct recruitment and recruitment by Promotion. The established principle is that the quota of promotion is to be filled up first and then the case of direct recruitment is to be taken up. Further, by memo dated 26-6-83 the two posts of preventive officers and appraisers were placed in the same pay scale of Taka 470-1135.00. The appellants contended that by having the same scale of pay the preventive officers and appraisers have become members of the same class with effect from 26-6-83. They therefore contend that they have become senior as a class above those who have be appointed directly as Appraisers after 26-6-83. 30 of the Appraisers are entitled to be senior to those who have been recruited directly in 1983 and 4 of the appraisers would be senior to those who have been appointed directly in 1978, as they were not promoted to the posts of appraisers in these years due to departmental procedural lapse and, as such, their seniority is to be restored. They filed an appeal before the National Board of Revenue against the Gradation list showing them as juniors to the direct recruits and the appeal having been rejected they filed the AT Case.
3. The respondents contended that the scope for promotion created by the order dated 21-6-77 was operative for only 6 months and it lapsed on 20-12-77. Still 31 preventive officers and Inspectors of Customs and Excise were promoted against 43 vacant posts of Appraisers in 1978. In 1983, 21 officers were directly recruited of whom 6 were technical Appraisers for whom there was no feeder post which remained vacant since 1979. Of the remaining 10 officers, 3 officers were appointed in 1984 and 4 officers were appointed compulsorily in 1985 at the instance of Establishment Division from surplus personnel of Youth Development Ministry and Mujibnagar employee s/freedom fighters. The promotion of appellants was delayed because they refused to sit for the departmental examination. The posts of Preventive Officers and Appraisers are separate posts and the two have never been amalgamated. The appellants who were Preventive Officers did not become Appraisers automatically simply because of amalgamation of pay scale. They acquired the capability of promotion after they appeared at an interview in 1986. They cannot claim retrospective promotion along with retrospective seniority.
4. The Administrative Tribunal dismissed the case and the Administrative Appellate Tribunal affirmed the decision with the finding that all the 98 officers in the gradation list which the appellants want to declare illegal in its entirety having not been made parties to this case the Administrative Tribunal ought to have dismissed the case for defect of parties. The Appellate Tribunal rejected the submission of the appellants that they ought to be treated as promoted in the years when direct recruitment took place because the preventive officers including the appellants refused to sit for the departmental examination and were therefore not rightly promoted during those periods. The Appellate Tribunal also negatived the submission of the petitioners that after the two posts of Preventive Officers and Appraisers were put in the same pay scale by memo dated 26-6-83 the two posts were amalgamated because there are separate recruitment rules, charter of duties, etc. for the two posts and even in the memo dated 26-6-83 the two posts have been shown as two distinctly sep rate posts. On an examination of the memo dated 26-6-83 the Appellate Tribunal found that in the organizational set-up the posts of Appraiser has been shown at serial No. 16 whereas the posts of Preventive Officer has been shown at serial No. 20. So, the two posts are separate posts and the promotion of the appellants is not a mere paper transaction as claimed by them. The appellants also prayed that they may be permitted to retain lien to the posts of preventive officers in case they are not granted retrospective seniority as prayed for, but the Appellate Tribunal having not found any law or decision in support of this prayer rejected the same. The Appellate Tribunal held that the seniority of the appellants have not been affected due to their placement in serial Nos. 35, 37, 39 and 40 in the Gradation List.
5. Leave was granted to consider the submission of the learned Advocate for the appellants that under the provisions of the Services (Re-organisation and Conditions) Act 1975 (Act No. XXXII of 1975) graded services was introduced and as a result seniority in a service would count from the date of entry in the grade. By notification dated 10-8-94 the service of the appellants as Preventive Officers were placed in .Grade-XI with the scale of pay of Taka 470-1135 with retrospective effect from 1-7-77 in pursuance of the provisions of sections 3 and of the said Act which will have overriding effect over any other law or regulation. As a result the appellants are entitled to count their seniority in the scale of Taka 470-1135 as Appraisers from the date of their inclusion in Grade-XI i.e with effect from 1-7-77.
6. The learned Advocate at the time of hearing of the appeal also pressed for granting leave, as before the two Tribunals below, that their alternative prayer for reversion to their previous post of preventive officers be allowed if for any reason they cannot be given seniority from the date of their entry into Grade XI which was originally from 26-6-83 and now from 1-7-77.
7. The main argument of Mr Abdur Rab Chowdhury, learned Advocate for the appellants, is based on the office Memo dated 10.8-94. This Memo is an order of the Implementation Cell of the Ministry of Finance, Government of Bangladesh stating that as per approval of the Martial Law Committee dated 26-6-83 of the National Board of Revenue in respect of the organizational set-up of the Collector of Customs, Customs House, Chittagong, the scale of pay of the preventive officer is increased to Taka 470-1135 from Taka 425-1035 and the said order will take effect from 1-1-77 instead of 26-6-83. This, according to the learned Advocate, is a notification in pursuance of the provision of sections 3 and 5 of the Services (Re-Organisation and Conditions) Act, 1975 (Act XXXII of 1975). Act XXXII of 1975 is an Act meant for prescribing uniformity of grades and scales of pay and other terms and conditions of the service for persons employed ;n services: Section 3 of the said Act provides for the overriding effect of this Act over all other existing laws, rules, regulations, bye-laws or terms or conditions of service.
Section 5 of the said Act reads as follows:
“5. Power of Government to prescribe unified grades and scales of pay, etc.-(1) The Government may, with a view to bringing uniformity in the grades and scales of pay of different persons or classes of persons employed in the service of the Republic or of any public body or nationalised enterprise, by order notified in the official Gazette, prescribe grades and scales of pay and other terms and conditions of service for all or any such persons or classes of persons”.
8. Thus, the vital question is, whether the order dated 10-8-94 of the Implementation Cell of the Ministry of Finance. Government of Bangladesh has any legal sanction and has been duly notified in the official Gazette or not. The memo of the Implementation Cell of the Ministry of Finance Government of Bangladesh dated 10-8-94 is the sheet anchor of the appellants’ case. In the Memo, the subject matter is mentioned to be the Services (Pay and Allowances), Order 1977. The Government in 1 exercise of its power conferred by section 5 of Act XXXII of 1975 passed the Services (Grades, Pay and Allowances) Order 1977 on 20-12-77. This order was published on 20-12-77 in the Bangladesh Gazette Extraordinary. But the Memo dated 10-3-94 was never published in the Official Gazette, as is required under section 5 of Act XXXII of 1975. The appellants could not show before us any legal sanction behind this office memo dated 10-8-94, Further, the order of the National Board of Revenue dated 26-6-83 is only a paper showing the implementation of the approved organizational set-up of the Collector of Customs, Custom House, Chittagong, wherein Appraisers are shown in Grade XVI and Preventive Officers are shown in Grade XX, although the scale of pay in both the cases is Taka 470-1135. In the same list Chemical Assistant, Inspector and Master (1st class) are placed in different grades, although the scale of pay of these officers is the same as that of the Appraisers and Preventive Officers. Therefore, the appellant argument that by receiving the same scale of pay the preventive officers and appraisers have become member of the same grade with effect from 26.6.83 and therefore, the Preventive Officers became senior as a class to those who have been appointed directly as Appraisers after 26-6-83 cannot be accepted for the simple reason that these two classes of officers are graded differently and these posts have not been treated as equivalent posts, although they are drawing the same scale of pay. Nothing has been shown to us to establish that the posts of Appraiser and Preventive Officer have been amalgamated. The Appraisers and Preventive Officers are not only graded separately but they are also discharging separate functions. The learned Advocate for the appellants could not show any notification under section 5 of Act XXXII of 1975 showing that these two classes of officers were brought under one grade. The appellants who were preventive officers did not become appraisers automatically simply because of amalgamation of the pay scale. There are different (Customs Department) recruitment rules for the two posts The post of preventive officer is also treated as a feeder post to the post of appraiser Even in the memo dated 26-6-83 the two posts have been shown as distinctly separate posts. It is also on record that the appellants after being qualified in the examinations held by the relevant authority were promoted as appraisers on 26-6-83. In such circumstances, the promotion of the appellants having taken place on 26-&83 in accordance with Rules they claim retrospective promotion along with retrospective seniority by virtue of the memo dated 10-8-94. The appellants cannot claim seniority as appraisers while they were preventive officers on 1-7-77. As a matter of fact the real promotion for all practical purposes took place on 26-6-83 and not earlier than that. The appellants having failed to show that these two posts were placed in the same grade cannot have any relief in this case. Finally, we find that the appellants are in a different grade than the appraisers and, as such, the Memo of the Ministry of Finance dated 10-8-94 will of no help to the appellants to count their seniority from 1-7-77. We may add that in the Services (Grades, Pay & Allowances) Order, 1977 published in the Bangladesh Gazette Extraordinary on 20-12-77, Appraisers were given Grade XIII and Preventive Officers were given Grade XIV (Vide P. 8217 of the Gazette). This order was made under section 5 of Act No, XXXII of 1975. Thereafter, under section 5 of the said Act, the Government further made the Services and Allowances). Order, 1985 and Chakuri (beton o Bhatadi) Adesh, 1991 published in the Bangladesh Gazette Extraordinary on 5-8-95 and 14-9-91 respectively. Only Existing Scales and Modified New Scales were mentioned therein, but no Grades. It appears, therefore, that the Grades of Appraisers and Preventive Officers still remain the same as in the Notification dated 20-12-77. Preventive Officers cannot claim upgradation by implication. It must be done by an act of volition by the Government by Gazette Notification.
9. With regard to the submission of the learned Advocate for the appellants for reversion to the previous posts of preventive officers, both the Administrative Tribunal and the Administrative Appellants Tribunal after giving cogent reasons have rejected this prayer of the appellants. The appellants who were originally preventive officers were duly promoted in accordance with the rules on 26-6-83 as appraisers. They having been confirmed in such posts cannot retain any lien in their original posts as preventive officers and, as such, the submission of the learned Advocate has been rightly turned down by both the Tribunals below.
For the foregoing reasons, the appeal is dismissed without any order as to costs.
Ed.
Source : 49 DLR (AD) (1997) 172.