Appellate Division Cases
(Civil)
Chairman, Board of Intermediate and Secondary Education, Jessore and others ………………………………………………………………Appellants (In all the cases)
-vs-
Golam Quddus & anr… Respondents (In C. A. No. 244 of 2002) Abul Kalam Azad being dead his heirs: -Badira Begum and & ors…Respondents ( In C. A. No. 245 of 2002) Md. Tofazzal Mossain & anr Respondents ( In C. A. No 246 of 2002) Aminuddin Ahmed & anr Respondents (In C. A. No 247 of 2002) Md. Mosharraf Hossain & anr Respondents ( In C. A. No 248 of Judgment 2002) 22ndMd. Abdul Monayem Mav 2006 & anr Respondents ( In C. A. No 249 of 2002) Serajul Haque & anr…Respondents (In C. A. No 250 of 2002) Civil Appeal Nos. 244-250 of 2002
JUDGES
Syed J. R. Mudassir Husain C J
M. M. Ruhul Amin J
Amirul Kabir Chowdhurv J
The Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance No. 33 of 1961), Section 35.
Public Servants (Retirement) Act, 1974 Act 9 XII of 1974) .
Whether the period of retirement shall he regulated under the provision of Ordinance of 1961 or under Act XII of 1974.
Under Section 35 of the Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance No. 33 of 1961 ) read with Section 2(d)(VI), of the Public Retirement Act, 1974 the age of retirement of the respondents being permanent employees of the Board is 60 and not 57 years, therefore, the impugned memo were issued illegally and without lawful authority (4)
The cloak of estoppal or waiver the legitimate claim of the petitioner cannot be refused.In view of section 35 of ordinance 33 of 1961 a legitimate expectation has been created in favour of the respondents which cannot be snatched away in the garb of estoppel or acquiescence..(25)
ADVOCATES
Sk. Awsaful Rahman, Advocate, instructed by Sufia Khatun, Advocate-on-Record .For the Appellants ( In all the cases) M. A. Aziz Khan, Advocate, instructed bx Ahsanullah Palwary Advocate-on-Record For Respondent No. 1 ( In all the cases)
JUDGMENT
1. Amirul Kabir Chowdhury J :- Civil Appeal No. 244 of 2002 has been preferred at the instance of the writ respondent Nos. 2 and 3, Chairman and Secretary of the Board of Intermediate and Secondary Education, Jessore against Judgment and order dated 24.10.2000 in Writ” Petition No. 2467 of 1998 passed by the High Court Division upon analogous hearing of Writ Petition Nos. 1872^0 1877 of 1998 making the Rules absolute. The Respondents as Writ Petitioners filed aforesaid Writ Petitions challenging memo compelling them to go on leave preparatory to retirement (Annexure-A scries to the writ petitions) before superannuating and also for a direction upon the writ respondents to comply with the provision of Section 35 of the Board of Intermediate and Secondary Education Ordinance, 1961 in respect of the term of their retirement from the service. The Writ Petitions arising out of common fact and law, High Court Division disposed of the same by a common judgment.
2. The leave petitions under the circumstance are disposed of by this single judgment. 3. The facts leading to all the leave petitions more or less arc Similar. It is averred that the respondents joined the service of the Board of Intermediate and Secondary Education, Jessore on various dates. They were permanent employees of the Board which was established under Section 3 of the Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance XXXIII of 1961) in short Ordinance of 1961. Before the High Court Division the respondents challenged the orders passed by the Respondents retiring them at the age of 57 on the basis of the public Servants (Retirement) Act, 1974 Act 9 XII of 1974) in short Act of 1974, contending that section 35 of the Board of Intermediate and Secondary Education Ordinance, 1961 provides the retirement age of the employees of the Board as 60 years. Therefore, the memo issued by the respondents directing the respondents to go on leave preparatory to retirement from the dates, mentioned therein on the ground that they would complete 57 years of age on those dates is illegal and without lawful authority.
4. The High Court Division after hearing both sides made the rules absolute holding that under Section 35 of the Board of Intermediate and Secondary Education Ordinance, 1961 (Ordinance No. 33 of 1961 ) read with Section 2(d)(VI), of the public Retirement Act, 1974 the age of retirement of the respondents being permanent employees of the Board is 60 and not 57 years, therefore, the impugned memo were issued illegally and without lawful authority.
5. Being aggrieved the writ respondents preferred the appeals.
6. Leave was granted to consider the following submissions: ” The High Court Division was wrong in failing to notice that the order of retirement of the writ petitioner respondents were passed by the Board in response to their application dated 22.01.1996 which was apparent on the face of the impugned order and as such the High Court Division was wrong in declaring that the order of retirement was wrong in declaring that the order of retirement was without lawful authority on an assumption that it was an order of compulsory retirement under the Public Servant Retirement Act, 1974 although nowhere in the impugned order or any other document or record was it stated that it was an order of retirement under Section 9 of the Public Servant Retirement Act. There being no document to show that the writ petitioner respondents were retired by the Board in exercise of the power of compulsory retirement under section 9 of the Public Servants (retirement) Act and in view of the fact that such an order of compulsory retirement could only be passed by the Government and not by the Board, and there being nothing in the impugned order to the effect that it was on order under the said Act and the said Act not having been vested the Board with any authority to compulsorily retire any of its servants in exercise of the power, the High Court Division was wrong in finding that it was compulsory retirement under the Public Service Retirement Act and as such it was without lawful authority. III. Section 35 of the Intermediate and Secondary Education Board Ordinance, 1961 having provided that an employee of the leave petitioner Board retires upon completion of 60 of years of age, and such provision for retirement at the age of 60 years is deemed under the law to be known to writ petitioner respondents No. I and having regard to the fact that the respondents applied to the petitioner to go on voluntary retirement and the leave petitioner having granted their prayer and paid them all their dues entitlements and benefits, the High Court Division was wrong in failing to hold that the writ petitioner respondents were barred by the principle of waiver, acquiescence and stopped from challenging their retirement at their own request after having received all the benefits and dues of such retirement as sought by them voluntarily and after such a long time.”
7. In support of the appeals Mr. Sk. Awsafur Rahman, learned Advocate has taken us through the materials on record and the impugned Judgment.
8. In his argument he reiterates the submissions made earlier on behalf of the appellants.
9. He emphatically submits that most oi’ the respondents have been given full benefit and as such they are not entitled to the relief sought for in the leave petition. But the High court Division committed i I legal ity in making the rules absolute without considering this vital aspect of the case.
10. He further submits that the appellants took the decision of the retirement of the petitioners on the basis of their applications and as such the order of the High Court Division declaring the order of retirement to be illegal cannot be sustained in law.
11. Mr. M. A. Aziz Khan, learned Advocate opposes the appeals appearing on behalf of the respondents.
12. He submits, inter-alia, that this is not a case of voluntary retirement and that the respondents are governed by the provisions of Board of Intermediate ate and secondary Education Ordinance 1961 (EP Ordinance No. XIII of J961) and according to the said statute the age of retirement of the respondents is 60 years and that the writ petitioner respondents cannot before to be retired at the age of 57 taking recourse to Act 12 of 1974 [the public Servants Retirement) Act 1974J.
13. In his submissions he referred to the minutes of meeting of Secondary and Higher Secondary Board. Jessore held on 19.09.1998 and submits that by resolution No. 2 (ka) it was decided that since the Board is regulated by Ordinance 33 of 1961 and Under Section 35 of the said Ordinance the period of retirement being 60 years the employees and officers of the Board shall be regulated by the said provision of law and their age of retirement shall be 60 years.
14. He thereafter submits that adoption of the Act 1974 to curtail the right of the respondent cannot be maintained in law and as such the High Court Division correctly decided the case. 15. We have considered the submissions made at the Bar and perused the materials on record.
16. It appears from the impugned judgment of the High Court Division that no affidavit-in-opposition was filed on behalf of the Writ respondents and the learned Assistant Attorney General appearing on behalf of the Writ respondents did not oppose the rules. The High Court Division on perusal of the materials on record and after hearing the matter by the impugned judgment and order made the rules absolute directing the writ respondents to issue proper orders of retirement in favour of the writ petitioners under section 35 of the Ordinance and pay them pension benefits accordingly.
17. There is no denial that the writ respondents joined the service of the Board of Intermediate and Secondary Education, Jessore in various capacities and have been permanent employees of the Board and the Board of Intermediate and Secondary Education, Jessore has been established under Section 3 of the Board of Intermediate and Secondary Education Ordinance 1961 and Section 35 of the said Ordinance runs as follows:”Section 35 Age of retirement: A permanent employee of the Board shall retire in the afternoon of the day on which he completes the sixty year of the age.”
18. The bone of contention between the parties is whether the period of retirement shall be regulated under the provision of Ordinance of 1961 or under ACT XII of 1974. The persistent case of the appellants is that since the Board took a decision to adopt the provision of aforesaid Act of 1974 so far as it relates to the period of retirement the writ petitioners are therefore bound by the aforesaid Act of 1974 where in the period of retirement has been prescribed as 57.
19. We have given our anxious consideration to the submissions of the parties on this point. It appears that under Section 2(d) (VI) of the Ordinance of 1974, the provisions of the said Ordinance shall not be applicable to any person who holds any office, the tenure of which is determined by or under any laws.
20. We have already noticed that the period of retirement of respondents has been provided in the ordinance of 1961 prescribing the period as 60 years.
21. We are, therefore of the view that the writ petitioners cannot be compelled to abide by the provision of Act of 1974, so far as the age of their retirement is concerned.
22. The High Court Division thus appears to have considered the matter correctly.
23. Further case of the appellants is that since the writ petitioners themselves applied for retirement at the age of 57 and some of them already took benefits they are now stopped to claim retirement at the age of 60 and as such their prayer cannot be considered and the High Court Division thus committed error in making the rules absolute.
24. It appears that the writ petitioners were made to understand that the Board took decision in the meeting dated 26.01.1976 to the effect that the Act XII of 1974 and Ordinance XI of 1974 having been made applicable upon the officers and employees of the board, they also fell in the mischief of the law, making them liable to retire at the age of 57 under section 4 of Act XI of 1974. This decision was taken notwithstanding section 2(d) (VI) of the said Act which in the eye of law kept the writ petitions out of the application of the Act of 1974. The purported decision of the meeting of the Board dated 26.01.1976 on the face of it is contrary to law and so is without legal basis and thus illegal. The relief available legally to the writ petitioners under law (under Ordinance of 1961) cannot be denied on the ground of acquiescence in the case as the action of the appellant itself is illegal and for patent want of legal jurisdiction such action cannot stand in the eye of law.
25. In such view of the matter on the cloak of estoppal or waiver the legitimate claim of the petitioner cannot be refused. In view of section 35 of ordinance 33 of 1961 a legitimate expectation has been created in favour of the respondents which cannot be snatched away in the garb of estoppel or acquiescence.
26. There is other side of the coin. At the time of hearing it has been brought to our notice that previously Writ Petition Nos. 2467, 1872, 1874, 1975, 1876, 1877, 1873, of 1998 were filed by them employees of the Board including the respondents against the appellants on similar grievance and the High Court Division made the rules absolute by common judgment and order dated 24.10.2000.
27. The appellants filed review petition Nos. 22-28 of 2000 against the aforesaid judgment and order of the High court Division and the High Court Division by judgment and order dated 25 January, 2001 rejected the review petition summarily.
28. We have perused the impugned judgment of the High Court Division and in the facts and circumstance of the case we are of the view that the High Court Division took a correct decision in making the rules absolute. The judgment therefore docs not call for our interference. In view of the discussion made above, the appeals are dismissed without any order of to costs.
Source : III ADC (2006), 360.