Bangladesh Shipping Corporation & others Vs. Mohammad Hossain & others

Appellate Division Cases

(Civil)

PARTIES

Bangladesh Shipping Corporation & others ………………Appellants.

-vs-

Mohammad Hossain & others ……………………………Respondents.

JUSTICE

Md. Ruhul Amin J

M.M. Ruhul Amin J

Md. Tafazzul Islam J

JUDGEMENT DATE: 18th July 2006

Service Regulation of 6(2) 1997 Provision of Article 27 of Bangladesh Shipping Corporation Order, 1972 (P.O.No.10 I of 1972)

The General Clauses Act, Section 24 Violation of regulation No.6 (3) which incorporates the principle of senioritycum-merit for promotion ………..(3)

Delegation of power once made shall continue unless withdrawn/rescinded.

Therefore, by a subordinate legislation i.e. service regulations of 1997 the power conferred by the P.O.10 of 1972, cannot be taken away …………………. (10)

The delegation of power once made to the Managing Director and not discontinuity and as such no delegation of power is to be made afresh, after promulgation of service regulations of 1997 as there is no such specific provision in the service regulations. He next submits that a persons has a right to be considered for promotion but he has no right to be promoted and seniority alone is not the criteria for promotion, rather seniority-cum-merit is the criteria for promotion ……….(11)

Procedure for writing annual confidential report giving marks for performance etc. and suitability of a particular officer for promotion to a particular post are to be left to the Government. In this connection he cited the case of Muhammad Aboo Abdullah Vs. province of East Pakistan and the Chief Secretary, Government of

East Pakistan reported in PLD 1960 (SC) 164. “So far as suitability or promotion to a particular post is concerned, the sole judge is the Government and Courts are unable to interfere except possibly in a case of proved malafides.” …………(12)

Seniority-cum-merit1 connotes fitness of a person and there being no way of judging

merit without judging fitness …………(14)

We have already found that delegation of power made under Article 27 P.O. 10 of

1972 made in 1974 was neither withdrawn nor rescinded till now and in the service regulations of 1997 there is no specific provision for delegation of power afresh by the Board to the Managing Directors. We accordingly hold that delegation of power made in 1974 still continues. We have also found that under regulations 6 (3) seniority-cum-merit is the criteria for promotion and seniority alone is not the criteria for promotion (Regulation 6 (2)). We have also j found that promotion in service cannot be: claimed as a matter of right but a person has a right to be considered for promotion……………….. (15)

Civil Appeal No. 325 of 2002 (From the judgment and order dated 29.05.2000 passed by the High Court Division in Writ Petition No.133 of J999).

Mahmudul Islam, Senior Advocate, (Bodruzza, Advocate, with him) instructed by ASM Khalequzzaman, Advocate-on-Record…………….For the Appellants

Khandker Mahbubuddin Ahmed, Senior Advocate, (S.M. Munir, Advocate With him) instructed by Md. Nawab AH, Advocate-on-Record………. For the Respondent No.l.

JUDGMENT

1. M.M. Ruhul Amin J:– This appeal by leave is directed against the judgment and order

dated 29.05.2000 passed by a Division Bench of the High Court Division in Writ Petition

No.133 of 1999 making the Rule absolute.

2. Short facts are that the writ petitioner joined the service of Bangladesh Shipping Corporation (shortly BSC) as Probation Officer in 1979. He was confirmed as Assistant Manager in 1980 and was promoted as Assistant General Manager on 02.04.1988. Thereafter, he completed 9 (nine) months training in Netherland and also obtained post graduate diploma on port and shipping Management. He has a clean service record.

3. The further case is that the writ respondent No.4 joined as a Commercial Officer in 1980 and the writ respondent No.5 joined as a senior clerk on 10.01.1984 and both were promoted as Assistant General Managers on 29.01.1989 and therefore, they are junior to the writ petitioner. The further case is that the Board of Directors of BSC framed Service

Regulations in Directors of BSC framed Service Regulations in 1997 wherein the

“Appointing Authority” was the Board of Directors or any person authorized by the Board. After framing of the service regulations, the Board did not authorize the Managing Director to appoint anybody. The departmental promotion committee consisting of the Managing Director, Executive Director (Finance) and Executive Director (Technical) made recommendations for promotion to the posts of Deputy General Managers in different groups and the Managing Director approved the said recommendations. Thereafter, Administrative Order No. 15/98 (Annexure-E) was issued under the signature of the General Manager (Administration) From which it appears that in Group-C writ respondent Nos.4 and 5 were given promotion to the post of the Deputy General Manager without considering the case of the writ petitioner, although he is senior to both of them, in violation of regulation No.6 (3) which incorporates the principle of seniority-cummerit for promotion. The Writ Petitioner made representation and the Board appointed an enquiry committee but since then nothing has been done. The writ petitioner then moved the High Court Division in its writ jurisdiction of Writ Petition No.133 of 1999 and obtained a rule which was subsequently made absolute.

4. The respondent No.l contested the Rule by filing an affidavit-in-opposition and contended, inter alia, that the writ petition is not maintainable as the petitioner cannot have any legitimate ground for being aggrieved by the impugned order vide Annexure-E as he has not suffered any actionable injury and the further case is that the petitioner’s case was considered by the departmental promotion committee and he was not found suitable for promotion and the promotion is not a matter of right. The respondent Nos.4 and 5 though being junior to the petitioner in service, the latter cannot debar them from being promoted since seniority is not the only criteria for promotion. Rather seniority cum merit is the predominant factor for promotion, according to Service Regulation of 1997. The respondent has further stated that it is not true that the Board of Directors of the BSC has not delegated relevant power of appointment to the Managing Director (respondent No.2) for appointment and promotion of officers and employees of the Corporation. The Board of Directors had already authorized and delegated the said power to the Managing Director and it was confirmed in the Board meeting held on 19.03.1999. The further case is that an enquiry committee was appointed to enquire into the allegations made by writ petitioner regarding promotion and enquiry to the grievance made by the writ petitioner for not considering him for promotion was made and his allegations were not found true. The enquiry committee also did not find the petitioner suitable for promotion. The further case is that the departmental committee for promotion did not consider the petitioner for promotion and also did not recommend the name for promotion and he could not secure required minimum 80% marks in the annual confidential report.

5. Leave was granted to consider the submission that the Article 14 of P.O. 10 of 1972 having permitted delegation of powers of the Board of Directors and pursuant to that provision power of appointment of the officers of the BSC having been delegated to the

Managing Director in 1974 no further delegation of power is necessary after the coming

into force of the Service Regulation in 1997 and the submission that the Service

Regulations provide seniority -cum-merit as the basis for promotion, and not senioritycum-fitness as was considered by the High Court Division and the submission that the Annexure-2 is a document prepared on the basis of annual confidential report of the officers for the last five years and this document shows that the respondents are more meritorious than the writ petitioner and the last submission that in any view of the matter, having regard to the provision of section 24 of the General Clauses Act, the delegation made in 1974 is valid even after the promulgation of the Service Regulations in 1997 and the High Court Division, therefore, was wrong in holding otherwise.

6. We have heard Mr. Mahmudul Islam, the learned Counsel for the appellants and Mr.

Khandker Mahbubuddin Ahmed, the learned Counsel for respondent No.l and perused the judgment of the High Court Division and other connected papers.

7. It is not disputed that the writ petitioner joined the service of the BSC as Probation

Officer in 1979 and was confirmed as Assistant Manager in 1980 and later on was promoted as Assistant General Manager on 02.04.1988. He received training abroad and obtained Post graduate diploma on Port and Shipping Management. It is also undisputed that respondent No.4 joined the BSC as a Commercial officer in 1980 and respondent

No.5 joined the BSC as Senior Clerk on 10.01.1984 and both were promoted as Assistant General Managers on 29.01.1989 and hence they are junior to the writ petitioner.

8. The grievance of the writ petitioner is that Annexure-E, the Administrative Order

No. 15/98 was issued giving promotion to respondent Nos.4 and 5 to the post of Deputy General Manager without promoting the writ petitioner, although he was senior to both of them.

9. Mr. Mahmudul Islam submits that in Regulation 2 (Jha) of (Bangla) framed under provision of Article 27 of Bangladesh Shipping Corporation Order, 1972 (P.O.No.10 of 1972) the appointing authority has been defined as under: (Bnagla)

10. He further submits that it is undisputed that the Board of Directors of BSC in 1974 delegated the power of appointment, promotion etc. of the officers and employees to the Managing Director of BSC. He further submits that in the Service Regulations of 1997 there is no special provision that delegation of power is to be made afresh to the Managing Director after coming into force of the Service regulations. He next submits that unless the power already delegated is withdrawn or otherwise rescinded, it must be held that delegation of power remained as it was. He next submits that in 183rd Board meeting of BSC it was decided that until further order of delegation of power of appointment, promotion etc. made to the Managing Director by the Board in 1974 shall continue until delegation of power is made afresh. Mr. Islam submits that it is an administrative order and they are not supposed to know the legal position and the position of law is that delegation of power once made shall continue unless withdrawn/rescinded. Therefore, by a subordinate legislation i.e. service regulations of 1997 the power conferred by the P.O. 10 of 1972, cannot be taken away.

11. We have already noticed that delegation of power by the Board to the Managing Director of the BSC is undisputed. In this connection the learned Counsel for the appellants further submits that section 24 of the General Clauses Act contemplates continuity of the delegation of power once made to the Managing Director and not discontinuity and as such no delegation of power is to be made afresh, after promulgation of service regulations of 1997 as there is no such specific provision in the service regulations. He next submits that a persons has a right to be considered for promotion but he has no right to be promoted and seniority alone is not the criteria for promotion, rather seniority-cum-merit is the criteria for promotion. He further submits that Annexure-2 to the writ petition shows that writ petitioner secured 75.90% marks on an average for the preceding 5 years in which his case was considered for promotion and in one of the ACRs, he was not considered fit for promotion whereas respondent Nos.4 and 5 secured above 86% marks and in all the ACRs they were considered fit for promotion and respondent, Rejaul Karim was recommended for accelerated promotion in the ACR of one year. He further submits that one person senior to the writ petitioner was also left out of consideration for promotion for not securing the minimum 80% marks in the ACR. He next submits it has been contended by the writ petitioner that the criteria for marking system in the annual confirmation report and for assessing the merit and quality of the officer were not based on any sound formula and as such this marking system should not be relied upon by the Court. In this connection Mr. Islam submits that the allegations made by the writ petitioner before the departmental promotion committee was enquired into by an enquiry committee consisting of two members-a Joint Secretary of the Ministry of Finance and a Deputy Secretary of the Ministry of Shipping. The enquiry committee on completion of enquiry submitted report stating that the allegations made by the writ petitioner and others were found to be without any basis.

12. Thus it appears that the allegations of the writ petitioner were duly enquired into by a committee consisting of two senior officers of the Government and as such the allegations of malafide as alleged by the writ petitioner in the matter of promotion does not stand. The learned Counsel further submits that the procedure for writing annual confidential report giving marks for performance etc. and suitability of a particular officer for promotion to a particular post are to be left to the Government. In this connection he cited the case of Muhammad Aboo Abdullah Vs. province of East Pakistan and the Chief Secretary, Government of East Pakistan reported in PLD 1960 (SC) 164. In that case it was held as under :”So far as suitability or promotion to a particular post is concerned, the sole judge is the Government and Courts are unable to interfere except possibly in a case of proved malafides.”

13. Thus it is clear that although the writ petitioner was senior to respondent Nos.4 and 5

but he could not secure the required minimum 80% marks in the annual confidential report for the preceding 5 years to get promotion and his allegations regarding writing of ACR etc. were duly enquired into by a high powered committee and the allegations were found to be without any basis. The service regulation 6 (2) provides that seniority shall not be the only basis for promotion and sub-regulation 3 of regulation 6 provides that seniority-cummerit shall be basis for promotion.

14. The learned Counsel for respondent No.l submitted that the Service Regulations of

1997 was enacted in pursuance of power granted to the Board under Article 27 of P.O. 10 of 1972. Therefore, the question of continuation of the delegation of power made

in 1974 or application of section 24 of the General Clauses Act did not arise and as such

the High Court Division committed no error in holding that there was no delegation of

power under the Service Regulations, 1997. He next submitted that the phraseology ‘seniority-cum-merit’ connotes fitness of a person and there being no way of judging merit without judging fitness, the High Court Division committed no error of law in finding the writ petitioner to be eligible for promotion. He next submitted that the rule contained in the document Annexure X-4 to the writ petitioner’s affidavit-in-reply having been wilfully violated by not taking into consideration the ACR of 1997 (last preceding year) and the document exhibits X-l and X-2 to the writ petitioners’ affidavit-in-reply (minutes of the DPC for 1988 and 1989) showing that writ petitioner secured more marks on merit having been ignored by the Corporation there is no error of law or fact in the judgment of the High Court Division in deciding the writ petition. He lastly submitted that promotion being considered in the year 1998, previous 5 years would be 1993-1997, but the ACR of 1997 was wilfully omitted from consideration by the concerned authority which affected the result of the writ petitioner who performed better than others in that year and as such Annexure-2 was no document for assessing as to which of the incumbents were more meritorious and the High Court Division did not commit any error of law or fact in the discarding’Annexure- 2 from consideration. 15. We have already found that delegation of power made under Article 27 P.O. 10 of 1972 made in 1974 was neither withdrawn nor rescinded till now and in the service regulations of 1997 there is no specific provision for delegation of power afresh by the Board to the Managing Directors. We accordingly hold that delegation of power made in 1974 still continues. We have also found that under regulations 6 (3) seniority-cum-merit is the criteria for promotion and seniority alone is not the criteria for promotion (Regulation 6 (2)). We have also found that promotion in service cannot be claimed as a matter of right but a person has a right to be considered for promotion.

16. Regarding the submissions of Mr. Ahmed that the ACR of 1997 of the writ petitioner was wilfully omitted from consideration, the learned Counsel for the appellant submitted that the process of promotion of the writ petitioner and others started in the year 1997 vide Annexure X-II dated 21.10.1997 and accordingly the ACRs of preceding 5 years i. e. upto 1996 were considered for all persons considered for promotion. Accordingly the ACR of 1997 which was not ready at that time could not be considered in respect of all the candidates considered for promotion. Therefore, this argument of the learned Counsel for the petitioner does not stand as there was no discrimination in respect of the writ petitioner.

17. We have found that the allegations of writ petitioner regarding promotion of respondent Nos.4 & 5 were enquired into by a committee consisting of a Joint Secretary of Ministry of Finance and a Deputy Secretary of Ministry of Shipping and the committee found that the allegations of the writ petitioner were baseless. So, the writ petitioner’s allegation of malafide does not stand.

18. Therefore, in the facts and circumstances of the case and in view of the discussions above, we are of the view that the High Court Division committed error of law in making the Rule absolute and as such judgment of High Court Division requires interference.

The appeal is accordingly allowed without any order as to cost.

Ed.

Source: IV ADC (2007), 156