The case filed before the Administrative Tribunal is not maintainable in law as necessary parties who were adversely affected by the order were not brought before the court in accordance with law. The cause title of the application of respondent No. I clearly shows that 29 directly recruited Assistant Commissioners of Taxes were not at all made parties in the case and no notice was individually served on them. Mahbubur Rahman & Ors. Vs. Taslimuddin Ahmed & Ors. 9BLT (AD)-226
In 1982 there were two advertisements, one on 10.06.1982 for regular batch and another on 22.12.1982 for Magistrates to BCS (Admn: Admn) Cadre, Respondent Nos. 2-61 were actually recruited through earlier advertisement. Public Service Commission, on the basis numerical numbers to all BCS Exams so far held, and according to this, respondent Nos.2-6l belongs to 1st BCS Examination whilst the appellants batch belong to 2uid BCS Examination. This being the case appellants are as a batch junior to
the respondents—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 respondent 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.
A.H.M. Mustain Billah & Ors. Vs. Bangladesh & Ors. 9BLT (AD)-2
Whether 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.
Held : 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 fulfill 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 if 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.
A.H.M. Mustain Billah & Ors. Vs. Bangladesh & Ors. 9 BLT (AD)-2.
Rule-3(g) read with Constitution of Bangladesh, 1972 Artlcles-27, 29 & 31
The correct position is that the appellants sat for a test of 300 marks only (100 marks psychological test and 200 mark viva voce) arranged by the Public Service Commission to recruit personnel against 650 post of Magistrates to fill up urgent vacancies created due to the introduction of upazila system and for this BCS (Recruitment) Rules had to be amended. This test was distinctly different from the regular BCS Examination of 1600 marks which the respondents appeared and come out successful. PCS’s advertisement dated 22.12.1982 under which the appellants were appointed clearly mentioned that their appointment was not to be considered as placement in the cadre direct.
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 B) are not at all contrary to the condition stipulated in the advertisement dated 22.12.1982. 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 view, a regular BCS Examination. This implications of the advertisement has been made dearer in the offer of appointment
—the effect of unifying the two services and issuance of Notification dated 04.04.1994 has in no way violated the fundamental rights of the appellants guaranteed under the above two Articles of the Constitution.
A.H.M. Mustain Billah & Ors. Vs. Bangladesh & Ors. 9BLT (AD)-2.