Appellate Division Cases
(Civil)
PARTIES
Bangladesh, repre-sented by the Secretary, Ministry of Establishment, Secretariat, Ramna, Dhaka …………………………………………………………Appellant.
Vs
Mr. A.K.M. Enayet Ullah…………………………………………….. Respondent.
JUDGES
Syed J.R. Mudassir Husain.C J
Mohammad Fazlul Karim. J
M. A. Aziz. J
Amirul Kabir Chwodhury. J
Date of Judgment
6th December 2004
The Senior Service Pool Order, 1979 Article 4(c).
The Cnstitutin Article 102
The respondent-writ-petitioner is a Government servant and he ought to have moved the Administrative Tribunal which is an appropriate forum where the writ-petitioner-respondent could have agitated all his grievances and in such view of the matter, the High Court Division having granted the remedial measures as contained in Annexures-E & H to the respondent’s writ-petition committed an error of law resulting in an error in the decision causing failure of
(From the Judgment and Order dated 25the June, 2003 passed by the Hish Court Division in Writ Petition No. 4134 of 2002)
Justice Learned Counsel further contended that High Court Division acted without jurisdiction in entertaining the writ-petition itself despite there being decisions of this Court that except for challenging the virus of any law or of forum non judice no writ could be maintained in respect of terms and conditions of any person in the service of the Republic (9 &10)
The grievances of the respondent as r pointed out by the learned Counsel are no doubt genuine and in our view, this case is a unique one and it is for the Government to consider the grievances of the respondent. We also find from the record, that the respondent was freedom fighter and thoroughly an honest officer but he has been deprived of his legitimate expectation. We, therefore, are of the view that the some injustice has been done to the respondent. We, therefore, -4 like to observe again that the respondent may now approach the Government for consideration of his grievances in the interest of justice and good conscience .,.(20)
ADVOCATES
A. J. Mohammad Ali, Additional Attorney General, instructed by Firoz Shah, Advocate-on-Record For the Petitioner. Me. T.H. Khan, Senior Advocate, ( Ajmalul Hossain, Q.C. Senior Advocate with himjinstructed by Mvi. Md. Wahidullah, Advocate-on-Record For the Respondents.
JUDGMENT
Syed J. R. Mudassir Husain C J:This appeal, filed by the Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Establishment, is from the judgment and order dated 25th June 2003 passed by the High Court Division in Writ Petition No. 4134 of 2002 making the Rule absolute.
2. The short facts for disposal of the appeal are that the respondent as writ-petitioner, A.K.M. Enayet Ullah filed the above writ petition calling upon the appellant the writ-respondent for declaration that the notice dated 11.5.2002 (Annexure-M) issued by the appellant (writ-respondent) was made without lawful authority and for declaring that the respondent writ-petitioner is entitled to the facilities and the remedial actions as per letters dated 22.11.1996 and 9.12.1997 of the Attorney General.
3. The case of the respondent as stated in his writ-petition is that he joined the then EPIDC as an Assistant Engineer in 1960. While he was working as a Senior Research Officer in the then PCSIR got a scholarship and went to England for higher studies leading to Ph. D, that while he completed his M.S. in England, the liberation was of Bangladesh started he actively participated in the liberation movement as the President of the Student Action Committee in the United Kingdom. As a result, the respondent had to forgo his Ph.D. research programme for the sake of liberation of Bangladesh. Owing to such reasons the respondent’s scholarship was later extended by the British Government after the respondent completed his M.S. (Masters of Science) in System Control and Management. The respondent was, however, recalled by the appellant before the completion of the respondent’s Ph.D. to serve in Bangladesh. On receiving official recommendations from the late President Justice Abu Sayeed Chowdhury and Professor C.W. Page of the University of Bradford and in view of the respondent’s contribution in the liberation movement, first class academic carrier and other proficiencies, the government decided in 1974/1975 to award the respondent a fellowship/scholarship to do Ph.D. at the University of Bradford, U.K. and also to induct the respondent in regular Government service. However, presumably due to steep opposition from a particular quarter the aforesaid decision of the Government of awarding the respondent a scholarship to enable him to do his Ph.D. and thereafter to be absorbed in the Government service had disappeared. The late President Ziaur Rahman having been apprised to this mischief ordered an investigation into the matter, Consequently, after due inquiry, investigation report was published on 10th August, 1978 Summary of this investigation report was placed before the then Hon’ble president and upon considering the said report and in recognition of the respondent’s first class academic record and active involvement in the liberation movement of Bangladesh in the year 1971 the respondent was at last appointed as a Deputy Secretary to the government of Bangladesh on 25th June, 1979 with effect from 16th December, 1971 treating the respondent senior to all those who were appointed as Deputy Secretary after 16th December, 1971. 4. The respondent was also inducted in the Senior Service Pool as Deputy Secretary and the requirement of 10 years service as a Class one Officer for promotion to the post of Deuty Secretary as envisaged in Article 4(c) of the Senior Service Pool Order, 1979 was waived. The Ministry of Law and the Regulation Wing of the Appellant i.e. Ministry of Establishment examined the case of the respondent and has given clear opinion in its file on different “dates including 12 March 1980, 22 February, 1986 and 21 January, 1997 that the appointment of the respondent as Deputy Secretary with effect from 16 December, 1971 was fully valid and anybody having had his appointment after the respondent would be junior to respondent. Unfortunately, the respondent’s direct appointment as Deputy Secretary with effect 16 December 1971 though he was not in any cadre service was not acceptable to certain quarters of the appellant, the Ministry of Establishment and as a result the respondent had undergone serious injustice and hardships particularly in matters of promotions and postings. In the background of such deprivation and injustice in the matter of the respondent’s rightful promotion, postings, financial benefits and other facilities, for which a demand of justice notice dated 21st July, 1993 was issued on behalf of the respondent upon the appellant, Ministry of Establishment.
5. On receipt of the said demand of justice notice, the matter was placed before the then Hon’ble Prime Minister who discussed the matter with the then Attorney General, Mr. K.S. Nabi and directed the NSI to investigate the matter and furnish a report with recommendations. The NSI in due course made necessary investigation and submitted its report to the concerned officer at the Prime Minister’s Office with the finding that the allegations made by the respondent as contained in the said demand of justice notice were true. But for mysterious reasons (again as a result of conspiracy of some officers) the report submitted by the NSI never reached the Prime Minister during her tenure until 1996. As a result the Prime Minister could not take required steps on the basis of the said investigation report. The respondent-writ-petitioner did not receive any response from the Prime Minister or from the present appellant and the learned Attorney General brought the matter again to the notice of the Hon’ble Prime Minister and thereupon the office of the Prime Minister made a copy of the said investigation report and sent the same to the Attorney General to enable him to make a summary of the respondent’s case for the Hon’ble prime Minister with recommendation. Thereafter, Mr. Nabi, the learned Attorney General received a copy of the said investigation report submitted by the NSI prepared the summary and sent the same by letter dated 23.11.1996 with recommendations of remedial measures including paying for compensation to the respondent (writ-petitioner). The Prime Minister upon consideration of the recommendations approved the remedial measures and forwarded the same to the appellant by a letter dated 8.12.196 for taking necessary steps for implementation. But again for mysterious reasons i.e. at the behest of some CSP Officers no steps could be taken by the appellant. The respondent again through his Counsel brought the matter to the notice of the Attorney General of Bangladesh and the Attorney General being directed after having due consultation with the Hon’ble Prime Minister again by letter dated 9th December, 1997 informed the respondent through his Counsel that the additional remedial measures would be provided to the respondent as set out in the said letter dated 9 December, 1997. Unfortunately, again nothing was done in this regard. Thereafter, the continued representations made by the respondent for implementation of the aforesaid remedial measures met the same fate. Eventually the appellant in utter disregard of the respondent’s legitimate claim as endorsed by the Prime Minister of Bangladesh retired the respondent on 11 May 2002 as an Additional Secretary and as a member of the Privatization Commission. The respondent then filed a writ petition before the High Court Division praying that the
respondent is entitled to the facilities and remedial measures.
6. The writ-respondent by filing affidavit-in-opposition contested the Rule contending, inter-alia, that the writ-petition was not maintainable as it relates to service condition of the writ-petitioner and the proper forum was Administrative Tribunal. It was also contended that no formal decision was taken on the basis of the recommendation allowing the facilities as per the Attorney General’s recommendations.
7. The High Court Division upon hearing the parties made the Rule absolute. The appellant being thus aggrieved filed this appeal against the impugned judgment of the High Court Division specially to the portion of the order which relates implementation of the remedial measures as contained in paragraph 8 of the Annexure-E in the light of paragraph 5 of Annexure-H to the writ-petition.
8. Mr. A.J. Mohammad Ali, the learned Additional Attorney General appearing for the appellant, having placed before us the impugned judgment of the High Court Division and other materials on record contended that the writ-petition of the respondent is not maintainable because it relates to condition of his service being a Government servant and thereafter he argued that the learned Judges of the High Court Division misconstrued the principle as laid down in the decisions as referred to in the impugned judgment and thereby the learned Judges misdirected themselves in arriving at their erroneous findings and decisions, which are liable to be set aside.
9. In elaborating his above submission, Mr. Mohammad AH, contends that the learned Judges of the High Court Division having failed to consider that admittedly the respondent-writ-petitioner is a Government servant and he ought to have moved the Administrative Tribunal which is an appropriate forum where the writ-petitionerrespondent could have agitated all his grievances and in such view of the matter, the High Court Division having granted the remedial measures as contained in Annexures-E & H to the respondent’s writ-petition committed an error of law resulting in an error in the decision causing failure of justice.
10. Learned Counsel further contended that High Court Division acted without jurisdiction in entertaining the writ-petition itself despite there being decisions of this Court that except for challenging the virus of any law or of forum non judice no writ could be maintained in respect of terms and conditions of any person in the service of the Republic.
11. The whole argument of Mr. Mohammad Ali is that the High Court Division committed an error of law in directing the Government to implement the remedial measures as contained in Annexures-E and H to the writ-petition, one of which, is summary and the other letter of the Attorney General to the respondent inasmuch as those documents have no force of law to be regarded as a decision of the Government.
12. Mr. T. H. Khan the learned Senior Counsel appearing for the respondent, on the other hand, contended that that the writ-petition is maintainable in the High Court Division because of the fact that this is a unique case of utmost deprivation and false hope given to the respondent on account of malafide action taken by some vested quarters in the service of the appellant and in such view of the matter the High Court Division for doing the substantial justice, rightly passed the impugned judgment and there is no illegality for interference. 13. Mr. Khan has next submitted that it is a settled law that notwithstanding the ouster clause of jurisdiction of the High Court Division by any legislative provision, the High Court Division is yet entitled to exercise its power of judicial review under Article 102 of the Constitution, if the action complained of before the High Court Division is found to be coram non judice, without jurisdiction or by malafide then the High Court Division is entitled to entertain the writ-petition for the ends of justice.
14. Mr. Khan strongly submitted that owing to conspiracies and calculated maneuverings of the interested quarters of the appellant, the remedial measures could not be implemented by the appellant and challenges the malafide act of refusal on part of the appellant to implement the decision of the Government authorized by the Prime Minister. Mr. Khan, therefore, argued that the learned Judges of the High Court Division having considered the material on record made necessary observations in the impugned judgment quite legally under the facts and circumstances of the case.
15. In order to strengthen his above submission, Mr. Khan has pin pointed out the grievance of the respondent, which are as follows: (I) The respondent had a brilliant carrier and he was given permission to complete his Ph. D. degree but no formal order to that effect was issued for no fault of his own. (II) The respondent was placed at serial No. 37 in the gradation list of the Deputy Secretaries as on 1st March, 1979 and some of his juniors were promoted to the post of Joint Secretary on 12th December, 1982 but the case of promotion of the respondent was not considered. (III) Although the respondent was considered for promotion on interview in year 1987 and 1988 but he was arbitrarily found not fit for promotion in spite of the fact that he had outstanding rating in his Annual Confidential Report (ACR) given in the year of 1988-1991. (IV) That some of more juniors of the respondent were promoted in the post of Additional Secretary and Secretary respectively on 4th March, 1991 and 21st April 193 but for no fault of the respondent’s case was not considered for promotion. (V) In March, 1991, at the instruction of the then Hon’ble President of Bangladesh the respondent was considered for promotion under the 10% quota of the Hon’ble President but unfortunately the respondent was given no promotion on the false report that there was no vacancy on the 10% quota although there were 2 vacancies under the said quota at that time. (VI) Although the respondent was promoted to the post of Joint Secretary on 10.02.1992 along
with some juniors to him but he was not given any posting and was deprived of salary and other facilities by illegally making the respondent OSD by and irregular back dated circular on 5the September, 1993.
16. Pointing out the aforesaid submission, the tenor of argument of Mr. T.H. Khan is that it is a unique case of deprivation to the legitimate expectation of the respondent, which is required to be considered by the Government and for doing the substantial justice. The High Court Division rightly passed the judgment in favour of the respondent for the purpose of doing equity and for good conscience. We find sufficient force in his argument.
17. Mr. A.J. Mohammad Ali, in reply, contended that whatever may be the grievances of the respondent, which were to be, agitated before the Tribunal as the respondent admittedly is a Government servant of the Republic.
18. We have heard the submissions made by the learned Counsel of both sides and also gone through the records and the impugned judgment of the High Court Division. Admittedly, the respondent is a full fledged Government servant and he was obliged to go the Tribunal for all his grievances. So, the argument of Mr. Mohammad Ali can not be ignored.
19. There is no dispute as to the ratio decided in the cited decisions as considered by the High Court Division and those decisions, in our view, are quite distinguishable in the context of the facts and circumstances of the case.
20. However, from the records and in view of the submissions made by Mr. T.H. Khan, we find that the grievances of the respondent as pointed out by the learned Counsel are no doubt genuine and in our view, this case is a unique one and it is for the Government to consider the grievances of the respondent. We also find from the record, that the respondent was freedom fighter and thoroughly an honest officer but he has been deprived of his legitimate expectation. We, therefore, are of the view that the some injustice has been done to the respondent. We, therefore, like to observe again that the respondent may now approach the Government for consideration of his grievances in the interest of justice and good conscience.
21. Having regard to the facts and circumstances of the case, we are of the view that the learned Judges of the High Court Division misdirected themselves in entertaining the writ-petition itself in view of the settled principle of law that the Administrative Tribunal is the proper forum for a government servant to agitate any violation in the matter of the service condition and in such view of the matter, impugned judgment of the High Court Division is liable to be set aside and we set aside the impugned judgment of the High Court Division. In the result, the appeal is allowed with observation made therein above. No order is made as to cost.
Source: III ADC 2006