Bangladesh represented by the Secretary, Ministry of Home Affairs and others (Petitioners)
Md. Waziullah (Respondent)
Mohammad Fazlul Karim J
Md. Joynul Abedin J
Md. Hasaan Ameen J
Judgment : February 6, 2008.
Hasan Faez Siddique, Additional Attorney General, instructed by Zainul Abedin, Advocate-on-Record- For the Petitioners
A. F. Mushfiqur Rahman, Advocate, instructed by Toufiqe Hossan, Advocate-on-Record-For the Respondent
Civil Petition for Leave to Appeal No. 1037 of 2007
(From the judgment and order dated the 14th day of May, 2007 passed by the Administrative Appellate Tribunal, Dhaka in Appeal No.33 of 2007).
Mohammad Fazlul Karim J. – This petition for Leave to Appeal at the instance of the petitioner is directed against the order dated 14.05.2007 of the Administrative Appellate Tribunal, Dhaka in Appeal No. 33 of 2007 in rejecting the Memorandum of Appeal as barred by limitation.
2. The short facts of the case is that the respondent, Md. Wazilullah was born on 01.01.1954 and joined in the Police Service on 15.02.1973 as a constable. Thereafter, in recognition of his unblemished service record he was promoted as Assistant Sub-Inspector of Police on 10.05.1979 and as ASI on 29.02.1984. He successfully completed DTS course in 1988, Renewal Course in 1989, TTS Course in 1996, Prosecution Course in 1998 and Immigration Training in 2003. He had unblemished service record. During his service life he was given 44 rewards. While he was working as an ASI of Special Branch, Dhaka received the impugned malafide and illegal order dated 07.10.2003 issued by the Inspector General of Police (Acting) in purported exercise of power under Section 9(2) of the Public Servants (Retirement) Act, 1974 on 11.10.2003. The impugned order is ex-facie illegal and void, because the power under Section 9(2) of the Public Servants (Retirement) Act, 1974 could only be passed in a clear case of ‘public interest’ by the Government. Only the Government is competent to retire a Public Servant under Section 9(2) but the impugned order was passed by the Inspector General of Police (Acting) which is without jurisdiction and as such it is illegal and void ab initio.
3. The said petitioner also mentioned that he was born on 01.01.1954 and he would reach the normal age of superannuation on 01.01.2011. The impugned order has been passed 8 years earlier to his normal retirement. He mentioned a list of 10 officers who have completed 25 years of service and having much inferior record of service are being kept in service; that after receipt of the impugned order the said petitioner made an appeal on 18.10.2003 for reinstatement in service. But did not get any response and thus compelled to seek relief before the Tribunal.
4. Mr. Hasan Faez Siddique, learned Additional Attorney General, appearing for the petitioners submits that the petitioner got the certified copy on 18.02.2007 but upon due to wrong calculation the petitioner filed this appeal long 8 months after receiving the certified copy of the judgment and order on 18.02.2007.Upon such miscalculation and non application of judicial mind the highest tribunal in the Administrative Sector committed error of law in rejecting the Memorandum of Appeal as barred by limitation which is liable to be set aside; that the appellate tribunal ought to have considered the merit of the case that the respondent has got no right to challenge the order dated 07.10.2003 as Section 9(2) of the Public Servants (Retirement) Act 1974 give the Government the option to retire a public servant any time after he has completed 25 years of service without assigning any reason and for public interest. Thus, the appellate tribunal committed error of law in not considering the cause of delay as sufficient.
5. It appears from the record that the judgment and order was passed on 19.04.2006 and the petitioner got the certified copy on 18.02.2007. The appellate tribunal found that the petitioner filed the appeal long 8 months after receiving the certified copy of the judgment and order. That the appellate tribunal is debarred from entertaining an appeal as no appeal can be entertained after 6 months of the impugned order under Section 6(2A) of the Administrative Tribunal Act, 1980 and no application for condonation of delay is applicable.
6. In view of the above, we find no substance in the submissions of the learned advocate for the petitioner
Accordingly, the petition is dismissed.
Source : 13 MLR (AD) 2008, 161