Dewan Abdul Khaleque Vs. represented by the Secretary, Ministry of Education, and others

Appellate Division Cases

(Civil)

PARTIES

Dewan Abdul Khaleque ………………………….Appellant

-VS-

Bangladesh,

represented by the Secretary, Ministry of Education, and others……….Respondents.

JUSTICE

Mustafa Kamal J

Latifur Rahman J

Mohammad Abdur Rouf J

Bimalendu Bikash Roy Choudhury J

JUDGEMENT DATE: 2nd July 1997

The Public Servants (Retirement) Act, 1974 (Act No. XII of 1974)

The Intermediate and Secondary Education Ordinance, 1961 (East Pakistan Ordinance

No. XXIII of 1961), section 35

As the appellant is a permanent employee of the Board and he holds his office the tenure of which is determined by the aforesaid Ordinance he is exempted from the operation of Act No. XII of 1974. The High Court Division did not advert to this submission of the appellant …………………………..(5)

Act No. XII of 1974, East Pakistan Ordinance No. XXIII of 1961 and submits that in view of the admitted position that the appellant is an employee of the Board of Intermediate and Secondary Education, Rajshahi, he cannot be asked to retire on completion of 57 years of age, as Act No. XII of 1974 is not applicable to a person who holds any office the tenure of which is determined by or under any law ……..6)

There is no doubt that sub-clause (vi) of clause (d) of section 2 of Act No. XII of 1974

excludes a person holding any office the tenure of which is determined by or under any law from the mischief of Act No. XII of 1974. The appellant’s tenure of office is admittedly governed by section 35 of East Pakistan Ordinance No. XXIII of 1961. In

that view of the matter we find that the contention of the appellant has substance and the High Court Division erred in law in not adverting to his submission of the appellant ………………………… (8)

Civil Appeal No. 55 of 1996 (From the Judgment and Order dated 21-8-96 passed by the High Court Division in Writ Petition No. 2405 of 1996).

Dr. Rafiqur Rahman, Senior Advocate (Md. Lutfar Rahman Mondal, Advocate with him)

instructed by Md. Aftab Hossain, Advocate-on-Record…………… For the appellant

S.R. Pal, Senior Avocate (Monsur Habib, Advocate with him), instructed by Md. Abu

Siddique, Advocate-on-Record ………………For respondent Nos. 2-3

Respondent No.1…………………. Not represented.

JUDGMENT

1. Mustafa Kamal J: This appeal by leave by the writ petitioner is from the judgment and order dated 21-8-96 passed by a Division Bench of the High Court Division in Writ

Petition No. 2405 of 1996 discharging the Rule Nisi.

2. The appellant, a Curriculum Officer and Inspector of Schools (In-charge) of the Board

of Intermediate and Secondary Education, Rajshahi was to complete 57 years of age on

31-7-96 and by a Memo, dated 6-4-96 the Secretary of the aforesaid Board asked him to

give an option as to whether he will go on leave preparatory to retirement one month

ahead of 31-7-96. The appellant submitted a representation to the chairman of the Board on 21-4-96 stating that he cannot be asked to retire before attaining the age of 60 years. The Chairman and the Secretary again asked the appellant by a Memo dated 30-5-96 that if he fails to comply with the direction dated 6-4-96 it will be presumed that he would not obtain leave preparatory to retirement. Upon serving a telegraphic notice of demand of justice he obtained a Rule Nisi from the High Court Division challenging the two Memo dated 6-4-96 and 30-5-96 as being without lawful authority and of no legal effect.

3. As already noticed the High Court Division discharged the Rule Nisi.

4. Leave was granted to consider the submission of the appellant that under the Public

Servants (Retirement) Act, 1974 (Act No. XII of 1974), a public servant who “holds any

office the tenure of which is determined by or under any law” is exempted from the operation of the said Act requiring a public servant to retire from service on completion of the fifty seventh year of this age (vide sub-clause (vi) of clause (d) of section 2 of the said Act). The appellant is an employee of the Board of Intermediate and Secondary Education, Rajshahi, which was established under the Intermediate and Secondary Education Ordinance, 1961 (East Pakistan Ordinance No. XXIII of 1961), section 35 of which is as follows: “35. A permanent employee of the Board shall retire in the afternoon of the day on which he completes the sixtieth year of his age.”

5. As the appellant is a permanent employee of the Board and he holds his office the tenure of which is determined by the aforesaid Ordinance he is exempted from the operation of Act No. XII of 1974. The High Court Division did not advert to this submission of the appellant.

6. Dr. Rafiqur Rahman, learned Counsel for the appellant has placed Act No. XII of 1974, East Pakistan Ordinance No. XXIII of 1961 and submits that in view of the admitted position that the appellant is an employee of the Board of Intermediate and Secondary Education, Rajshahi, he cannot be asked to retire on completion of 57 years of age, as Act No. XII of 1974 is not applicable to a person who holds any office the tenure of which is determined by or under any law.

7. Mr. S.R. Pal, learned Counsel for respondent Nos.2 and 3 candidly concedes that the

High Court Division was not correct in its interpretation and the appellant’s contention

carries substance.

8. There is no doubt that sub-clause (vi) of clause (d) of section 2 of Act No. XII of 1974

excludes a person holding any office the tenure of which is determined by or under any

law from the mischief of Act No. XII of 1974. The appellant’s tenure of office is admittedly governed by section 35 of East Pakistan Ordinance No. XXIII of 1961. In that view of the matter we find that the contention of the appellant has substance and the High Court Division erred in law in not adverting to his submission of the appellant.

9. The appeal is allowed without any order as to costs.

Ed.

Source: IV ADC (2007), 383

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