Appellate Division Cases
(Civil)
PARTIES
Bangladesh Biman Corporation ……………………..Appellant
(In C.A. Nos. 30 & 32/99)
Government of Bangladesh and others ………………Appellant
(In C.A. Nos. 31 & 33 /99)
-VS-
Lt. Col. ( Rtd.) Md. Zainul Abedin and ors………..Respondents
(In C.A. Nos. 30 & 31/ 99)
Capt. (Rtd.)Syed Abu Naser Mohammed Okba and others ……….Respondents.
(In C.A.No. 32 & 33/99)
JUSTICE
Latifur Rahman CJ
Bimalendu Bikash Roy Choudhury J
A.M. Mahmudur Rahman J
Mahmudul Amin Choudhury J
JUDGEMENT DATE: 27th February 2000
Section 9(2), 2(d), 2(d)(i) & (vi) of the Public Servants (Retirement) Act, 1974
State of U.P. vs. Hindustan Alluminam Corporation and others, AIR 1979 SC 1459 at
1464 (para 41)
The writ petitioners in their petitions did not make out any case for back salaries and benefits nor did they pray for any direction or writ in the nature of mandamus and that the High Court Division has, therefore, acted beyond its jurisdiction in giving directions for reinstatement of the writ petitioners with back salaries and benefits while making the Rule absolute ……………………(13)
The expression “law” in exception (vi) means a statute law and not a regulation or
bye- law because a subordinate legislation cannot override, or be inconsistent with,
the provisions of a statute law unless so permitted by its parent legislation…….(18)
Considering the overriding nature of section 3 of the Act it can be very well said that
whatever be the provision of any regulation or bye-law, the Regulations under which the writ petitioners seek cover will not prevail if it is inconsistent with the Act.……………………(25)
(Appointment and Fixation of Seniority in Civil Post) Rules, 1983 provide for taking
into account the service in the defence service for the purpose of seniority in the civil
post. Therefore the length of in the defence service will have to be counted towards
service of the incumbents in the civil post. If the officers of the defence service can get advantage of Rules 5 and 7 in respect of seniority there is no reason why they
should not be subjected to the provisions of retirement applicable to the service………………..(29)
Civil Appeal Nos. 30 and 31 of 1999
(From the judgment and order dated 1 December 1998 passed by the High Court Division in Writ Petition No. 2775 of 1998 in both the cases)
WITH
Civil Appeal Nos. 32 and 33 of 1999 (From the judgment and order dated 21 September 1998 passed by the High Court Division in Writ Petition No. 1044 of 1998 in both the cases)
Rokanuddin Mahmood, Senior Advocate (M.A. Tareq, Advocate with him) instructed by
Sharifuddin Chaklader, Advocate-on-Record. ………For the Appellant. (Nos. 30&32/99)
Mahmudul Islam, Attorney General, instructed by A.K.M. Shahidul Huq, Advocate-on-
Record………………..For the Appellant (in C.A.Nos. 31 & 33/99)
Not represented …………….Respondent No.2 ( In C.A. No. 30/99)
Dr. Md. Zahir, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-Record………….Respondent No. I (In C.A. No. 32/99)
Respondent Nos. 2-3 (In C.A. No. 32/99)……………….Not represented.
Respondents (In C.A. Nots. 31 & 33/99) ……………..Not represented.
JUDGMENT
1. Bimalendu Bikash Roy Choudhury J: All the above appeals by leave arise out of facts akin to each other and involve common questions of law and therefore they have been heard together.
2. C.A.No. 32 of 1999 and C.A. No. 33 of 1999-one by Bangladesh Biman Corporation
(briefly the Biman) and the other by the Government challenge the same judgment
and order dated 21 Septemberl988 in Writ Petition 1044 of 1998 whereby a Writ Bench
of the High Court Division declared the retirement of the writ petitioner Capt. (Retd.) Syed Abu Nasser Muhammad Okba issued by the Joint Secretary, Ministry of Civil Aviation and tourism (Annexure-L) as illegal and without lawful authority with a further direction to the appellants to reinstate the writ petitioner in his post with all back wages and benefits within 60 days of the receipt of the copy of the judgment on pain of legal consequences.
3. C.A. No. 30 of 1999 and C.A. No. 31 of 1999, one by the Biman and the other by the
Government, challenge the same judgment and order dated 21 August 1988 in Writ
Petition No. 2775 of 1998 whereby the Writ Bench declared the retirement of writ petitioner Lt. Col. (Retd.) Mohammed Zainul Abedin issued by the Joint Secretary, Ministry of Civil Aviation and Tourism (Annexure-F). as illegal and without lawful authority with a further direction to the appellants to re-instate the writ petitioner in his post with all back wages and benefits within 60 days of the receipt of the copy of the judgment on pain of legal consequences.
4. Both the writ petitioners, Capt. (Retd.) Syed Abu Naser Muhammad Okba and Lt.
Col. (Retd.) Mohammed Zainul Abedin were in employment of the defence services and
took employment under the Biman after the former had already retired from the Army and the latter was on leave preparatory to retirement.
5. Capt. (Retd.) Syed Abu Naser Muhammad Okba was commissioned in the then Pakistan Army in May 196.7. With the emergence of Bangladesh as an independent country he continued his service with the Bangladesh Army until 21 June 1974 when he retired. On 16 September 1974 he joined the Biman as Senior Security Officer. After several promotions during the years from 1974 to 1998 when he was the Director ( Marketing and Sales) of the Biman he received on 6 April 1998 the impugned order of his retirement dated 2 April 1998.
6. Lt. Col. (Retd.) Mohammed Zainul Abedin Joined Pakistan Air Force in February 1970. After independence he continued his service with Bangladesh Army and became Lt. Colonel in 1980. When he was on leave preparatory to retirement he was re-employed
by the Government on contract as Secretary/Director of the Corporation for 3 years by an order dated 15 May 1982. He was permanently absorbed as Director (Administration) in the Biman by a Board resolution dated 4 September 1983. Subsequently he was promoted to the post of Deputy Managing Director with effect from 1 December 1988. He was on deputation to different trusts and organizations under the Government in various capacities and ultimately reverted to his original post of Deputy Managing Director of the Biman.While acting as such he received the order of his retirement dated 27 August 1998.
7. Both the orders of retirement were passed by the Government under section 9(2) of the
Public Servants (Retirement) Act, 1974, hereinafter referred to as the Act, in public interest.
8. Being aggrieved by the said orders of retirement Capt. (Retd.) Syed Abu Naser
Muhammmad Okba preferred Writ Petition No. 1044 of 1998 and Lt. Col. (Retd.)
Mohammed Zainul Abedin preferred Writ Petition No. 2775 of 1998 on the grounds that
they had not attained the age of 57 years (age of retirement) or completed 25 years of service in the Biman and that the Government had no authority to retire them as they were the officials of the Biman.
9. Both the Biman and the Government contested the writ petitions by filing separate affidavits-in-opposition. Their contention in substance was that the Government had passed the impugned orders of retirement in exercise of powers under section 9(2) of the Act as the writ petitioners had completed 25 years of service under the Government tacking the period of their service with the defence services.
10. The Writ Bench of the High Court Division took the view that the service of the
writ petitioners could not be regarded as service under the Republic and that they did not
come within the ambit of the Act as they were governed by the Bangladesh Biman
Corporation Employees (Service) Regulations (briefly the Regulations) and not by the Act. Furthermore, the petitioner Capt. (Retd.) Syed Abu Naser Muhammad Okba on his retirement from the defence services was without employment for sometime before he joined the Biman which gave a start of a new career. Accordingly the Writ Bench, by the impugned judgments and orders, made the Rules absolute and ordered as aforesaid.
11. Appearing on behalf of the Government-appellant the learned Attorney General submits that the writ petitioners are public servants within the purview of the Public
Servants (Retirement) Act, 1974 inasmuch as the definition of public servant as given in
section 2(d) of the Act clearly includes a person who is in the service of any corporation or nationalized industry or local authority and therefore the Government in the Ministry of Civil Aviation and Tourism was justified in making the orders of retirement under section 9(2) of the Act on completion of their 25 years of service taking into account the period of their service with the defence service. He continues that the High Court Division has misdirected itself in law in taking the view that section 2(d) (i) & (vi) of the Act excludes the writ petitioners from the definition of public servant occurring in section 2(d) of the Act as the tenure of their office was governed by the Regulations and thus erred in law in deciding the writ petitions upon such an erroneous view.
12. His next submission is that the High Court Division is wrong in its view that with the
fresh and new appointment in the Biman the writ petitioners started a new career having no nexus with their former defence service. The Rules and the conditions for employment of retired armed forces officers in the civil post, he adds, clearly provide that continuity of service of such officers will be from the date of their commission in the armed forces
except for the period when such a person was out of service (which is excluded), and that
therefore it cannot be said that the writ petitioners’ service with the Biman had no connection with their former service in the armed forces.
13. Mr. Rokanuddin Mahmood, learned counsel for the Biman appellant, reinforced the
submissions of the learned Attorney General and contends further the writ petitioners in
their petitions did not make out any case for back salaries and benefits nor did they pray
for any direction or writ in the nature of mandamus and that the High Court Division has,
therefore, acted beyond its jurisdiction in giving directions for reinstatement of the writ
petitioners with back salaries and benefits while making the Rule absolute.
14. Both Dr. M. Zahir and Khondker Mahbubuddin Ahmed, learned Counsel for
Capt. (Retd.) Syed Abu Naser Muhammad Okba and Lt. Col. (Retd.) Mohammed Zainul
Abedin (respondents) strive to refute the submissions of the appellants by supporting the
reasons given by the High Court Division in its judgment.
15. The submissions on behalf of both sides have received our careful scrutiny in the light
of the relevant laws. The pertinent question to decide is whether the writ petitioners were
public servants within the meaning of the Act and thus governed by section 9(2) thereof.
16. A public servant has been defined in section 2(d) of the Act, the relevant portion
whereof runs as follows: “Public Servant includes any person who is. for the time being, in the service of the Republic or of any corporation, nationalized enterprise or local authority or who, on the basis of having at any time been in the service of Pakistsan, purports to claim any right to employment in the service of the Republic, but does not include any person who(i) is a member of any defence service, (ii)… (hi)… (iv)…
(v)… (vi) holds any office tenure of which is determined by or under any law;”
17.Biman being a statutory corporation its employees clearly fall within the general definition of public servant quoted here above, the definition excludes certain categories of persons from the ambit of the Act. Exceptions (i) and (vi) might appear to give a cover to the cases of the writ petitioners. But it is illusory. Exception (i) is not relevant as the writ petitioners were not members of any defence service at the material time.
18. The question is whether exception (vi) would be applicable here. The learned
Attorney General has urged, in our opinion rightly, that considered in the context, exception (vi) provides that a person shall come within this exception if any other law has provided for him a tenure different from the tenure prescribed by the Act, which, in other
words, means that the Act shall not apply in such a case. The learned Attorney General
further submits that the expression “law” in exception (vi) means a statute law and not a
regulation or bye- law because a subordinate legislation cannot override, or be inconsistent with, the provisions of a statute law unless so permitted by its parent legislation.
19. The grounds on which the by-laws may be treated as ultra vires are stated in Craies on
Statute Law (7th Edr) page 325 as follows: “(a) That they are not made, sanctioned
and published in the manner prescribed by the statute which authorizes the making of them. (b) That they are repugnant to the laws of England. (c) That they are repugnant to the statute under which they are made. (d) That they are uncertain. (e) That they are unreasonable, (emphasis added).
20. At page 327 the author further states ” And all by-laws which are contrary or repugnant to the laws or statutes of the realm are void and of no effect. It is sometimes expressly stated in a statute that a by-law must not be repugnant to the statute or the general law; but, whether so stated or not, a by-law which in whole or in part is not confined to the particular circumstances contemplated by the statute or is repugnant to the general law is invalid.”
21. The Supreme Court of India expressed the same principles in State of U.P. vs. Hindustan Alluminam Corporation and others, AIR 1979 SC 1459 at 1468 (para 41) in the following terms:
22. ” The grounds of challenging the validity of subordinate legislation are well known.
The challenge may be on the ground that the power to make the law could not have been
exercised in the circumstances which were prevailing at the time when it was made, or
that a condition precedent to the making of the legislation did not exist, or that the authority which made the order was not competent to do so, or that the order was not made according to the procedure prescribed by law, or that its provisions were outside the scope of the enabling power in the parent Act or were otherwise violative of its provisions or of any other existing statute.” (emphasis added).
23. The Bangladesh Biman Corporation Ordinance, 1977 has not given any authority
to override other laws by the Service Regulations. Biman Service Regulations would have been void if a tenure different form the tenure prescribed by the Act would have been prescribed. The Act prescribes 57 years as the age of superannuation, so does
the Service Regulations of Biman. Thus the Biman Service Regulations merely adopts the tenure prescribed by the Act and has not provided any tenure different from the tenure prescribed by the Act. In this situation, exception (vi) is not attracted and the Act is applicable in the case of Biman employees.
24. Section 3 of the Act is to the effect that the provisions of the Act and rules framed
thereunder shall have effect notwithstanding anything inconsistent therewith contained in
any other law for the time being in force or in any rule, regulation, bye-law, instrument or
contract or in any terms and conditions of service of a public servant.
25. Considering the overriding nature of section 3 of the Act it can be very well said that
whatever be the provision of any regulation or bye-law, the Regulations under which the writ petitioners seek cover will not prevail if it is inconsistent with the Act.
26. Section 9(2) of the Act provides as under: ” The Government may, if it considers
necessary in the public interest so to do, retire from service a public servant at any
time after he has completed twenty-five years of service without assigning any
reason.”
27. Regulation 11A(2) of the Regulations as amended up-to-date, on the other hand, reads
as under: “The Corporation may, if it considers expedient so to do, retire from service an
employee at any time after he has completed twenty five years of service without
assigning any reason.” There is a clear conflict between these two provisions so far as the retiring authority is concerned. In the fromer it is the Government while in the latter it is the Corporation.
28. In the case of Bangladesh Jute Research Institute vs. Md.Ayub Ali and another,
C.P.No. 676 of 1996, this Court had the occasion to consider a similar question. Mustafa
Kamal, J. (as he then was), speaking for the Court, answered it in the following terms:
“-If regulation 53 had provided that the competent authority of a statutory body may exercise the same powers as are exercised by the Government under section 9(2) of the said Act then also the Regulation would have been void, being contrary to overriding provisions of section 3 of the said Act.”
29. In the instant case the writ petitioners, who were employees of the Biman, therefore,
fall well within the meaning of a “public servant” as defined in section 2(d) of the Act and it is only the Government who had the power to retire them in exercise of the power under section 9(2) of the Act.
30. As to the next question i.e. the tacking of the period of service of the writ petitioners in the defence service with that in the Biman , we take the view that tacking would lie. Both seniority and superannuation are dependent on the length of service. Rules 5 and 7 of the Defence Services Officers (Appointment and Fixation of Seniority in Civil Post) Rules, 1983 provide for taking into account the service in the defence service for the purpose of seniority in the civil post. Therefore the length of in the defence service will have to be counted towards service of the incumbents in the civil post. If the officers of the defence service can get advantage of Rules 5 and 7 in respect of seniority there is no reason why they should not be subjected to the provisions of retirement applicable to the service.
31. In the circumstances we are of the view that the writ petitioners are governed by the
Act and their retirement under section 9 (2) thereof cannot be assailed as ultra vires.
32. In the view we have taken above it is needless for us to dilate on the question raised
by Mr. Rokanuddin Mahmood whether a writ of mandamus could be issued on the facts and in the circumstances of the case.
33. We accordingly allow all the appeals without, however, any order as to costs.
Ed.
Source: IV ADC (2007), 31