Dr. Mir Jamal Uddin and others Vs. Dr. Nawzesh Farid and others

Dr. Mir Jamal Uddin and others

Vs.

Dr. Nawzesh Farid and others

Supreme Court

Appellate Division

(Civil)

Present:

MM Ruhul Amin CJ

Mohammad Fazlul Karim J

Md. Joynul Abedin J

Md. Abdul Matin J

Shah Abu Nayeem Mominur Rahman J

ABM Khairul Haque J

Judgment

October 14, 2009.

Lawyers Involved:

Rokonuddin Mahmud, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record-For the Petitioners. (In Civil Petition No.1158 of 2009)

A. K. M. Aminuddin, Advocate, instructed by Chowdhury Md. Zahangir, Advocate-on-Record- For Respondent No.1. (In Civil Petition No.1158 of 2009.)

Not Represented- Respondent Nos. 2-5. (In Civil Petition No.1158 of 2009)

Md. Zahirul Islam, Advocate-on-Record-For the Petitioners. (In Civil Petition No. 1159 of 2009)

Chowdhury Md. Zahangir, Advocate-on-Record-Respondent Nos. 1-4. (In Civil Petition No. 1159 of 2009)

Not Represented- Respondent Nos. 5-8. (In Civil Petition No. 1159 of 2009)

Khandoker Mahbubuddin Ahmed, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record-For the Petitioners. (In Civil Petition Nos. 1160-61 of 2009)

A. M. Aminuddin, Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record. Not Represented- For Respondent No.1. (In Civil Petition Nos. 1160-61 of 2009)

Not represented- For Respondent Nos. 2-7. (In Civil Petition Nos. 1160-61 of 2009)

A.F.M. Mesbahuddin, Senior Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record- For the Petitioners. (In Civil Petition Nos.1162 of 2009)

Not Represented- The Respondents. (In Civil Petition No. 1162 of 2009)

Mrs. Sara Hossain, Advocate, instructed by Md. Zahirul Islam, Advocate-on-Record- For the Petitioners. (In Civil Petition No. 1172 of 2009)

Dr. M. Zahir, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record- For the Respondent Nos.1, 2 and 4. (In Civil Petition No.1172 of 2009)

Not Represented- Respondent Nos. 3, 5-8. (In Civil Petition No.1172 of 2009)

Amirul Islam, Senior Advocate, instructed by Mrs. Mahmuda Begum, Advocate-on-Record- For the Petitioners. (In Civil Petition No. 1177 of 2009)

Not Represented- The Respondents. (In Civil Petition No.1177 of 2009)

Md. Zahirul Islam, Advocate-on-Record-For the Petitioners. (In Civil Petition No. 1183 of 2009)

Not Represented- The Respondent. (In Civil Petition No. 1183 of 2009)

Rafique-ul-Huq, Senior Advocate, instructed by Mvi. Md. Wahidullah, Advocate-on-Record-For the Petitioners. (In Civil Petition No. 1225 of 2009)

Mahmudul Islam, Senior Advocate, instructed by Syed Mahbubr Rahman, Advocate-on-Record- For the Respondent Nos. (In Civil Petition No. 1225 of 2009)

Md. Zahirul Islam, Advocate-on-Record-For Respondent No.7. (In Civil Petition No. 1225 of 2009)

Not Represented-Respondent Nos.1-2, 5-6, 8-11. (In Civil Petition No.1225 of 2009)

Civil Petition For Leave To Appeal Nos. 158-1162 and 1172, 1177, 1183 and 1225 of 2009.

(From the Judgment and order dated 23.07.2008 passed by the High Court Division in Writ Petition Nos. 2094, 2396, 3365, 361, 4240, 2472, 2239 and 3259 of 2007).

Judgment

A B M Khairul Haque J. – These petitions for leave to appeal are in respect of the judgment and order dated 23.07.2008 passed by the High Court Division in making all the Rules absolute in Writ Petition Nos. 2094, 2396, 3365, 361, 4240, 2472, 2239 and 3259 of 2007.

2. The facts leading to the filing of the above noted writ petitions, in brief, are that Bangladesh Public Service Commission (PSC) invited applications vide notification dated 28.05.2006, published in various news papers for appointment in the posts of Professors, Associate Professors and Assistant Professors in different disciplines in various Medical Colleges, Hospitals and Institutes under the Ministry of Health, Family Planning and Welfare, Government of Bangladesh. In the said notification, PSC specifically stated the number of posts to be filled-up in various categories and as to whether those are permanent or temporary. After the completion of the selection process, the PSC issued the list of the successful candidates. The petitioners found that although they were not selected but the PSC recommended beyond the number of posts advertised in the notification. These recommendations of the PSC were challenged in the writ petitions.

3. The PSC as well as the successful candidates contested the Rules by filing affidavits-in-opposition. The main contention of the PSC is that it reserves the right to select any person from any running process of appointment and that in the case in hand, it recommended the names of the candidates on the basis of specific requisitions forwarded by the concerned Ministry, as advertised in the news-papers and also on requisitions subsequent to the advertisements.

4. The High Court Division found on record that the PSC while making the advertisement in the newspapers, specifically mentioned the number of posts and whether those are permanent or temporary. It further found that the PSC recommended more names than advertised in pursuance of subsequent communications in between the PSC and the concerned Ministry, the requiring body. The Court held that the Recruitment Rules of 1981 do not provide for recommending any person from any running process. The Court held that the selection process by way of requisition and advertisement can be made for existing vacancies and also for anticipated vacancies but generally not for future vacancies, unless an emergent situation which compelled the authorities to recruit more persons than advertised, is specifically made out. Since no such attempt was made on behalf of the respondents, the recommendations of the PSC, under challenge in the Rules are declared by the High Court Division, to have been made without lawful authority and the Rules were made absolute.

5. The Civil Petition No. 1158 of 2009 and the Civil Petition No.1159 of 2009, arose out of the Writ Petition Nos. 3365 of 2007 and 2094 of 2007 respectively. The Memo dated 06.02.2007 issued by the PSC was challenged in those two writ petitions. In the said memo, the PSC recommended 5 (five) physicians in pursuance to an advertisement for making appointments in the posts of Associate Professor, in the department of cardiology on temporary basis. But in pursuance of a subsequent request of the Government, another 5 (five) candidates were recommended for appointment in the said post of Associate Professors on permanent basis apparently without further advertisement (Annexure-E to the Writ Petition No. 3365 of 2007).

6. The Civil Petition No. 1160 of 2009 and the Civil Petition No. 1161 of 2009 arose out of the judgment and order passed in Writ Petition No. 361 of 2007 and the Writ Petition No.4240 of 2007. In that writ petition, the Memo dated 13.12.2006, issued by the PSC was challenged. In the said memo, the PSC recommended 13 (thirteen) physicians for making appointments in the posts of Associate Professor in the department of Pediatrics although public advertisement dated 28.05.2006 was made for recruitment in 6 (six) posts only (Annexure-B to the Writ Petition No. 361 of 2007).

7. The Civil Petition No. 1162 of 2009, arose out the judgment and order passed in Writ Petition No.3259 of 2007. In that writ petition, the memo dated 15.02.2007, issued by the PSC was challenged. In the said Memo, the PSC recommended 17 (seventeen) surgeons for making appointments in the posts of Associate Professor in Orthopedic Surgery, although public advertisement dated 28.05.2006 was made for recruitment in 5(five) posts on an ad hoc basis (Annexure-C to the Writ Petition).

8. The Civil Petition No.1172 of 2009 arose out the Writ Petition No. 2472 of 2007. In that writ petition, the memo dated 19.02.2007 (Annexure-D to the writ petition), issued by the PSC was challenged. In the said memo, the PSC recommended 21 (twenty one) surgeons for making appointments in the posts of Associate Professor in Surgery, although public advertisement dated 28.05.2006 was made for recruitment in 10 (ten) temporary posts of Associate Professors (Annexure-B to the Writ Petition). It appears that over and above the 10 (ten) temporary posts, recommendation for further 11 (eleven) permanent posts was given for which no advertisement was made.

9. The Civil Petition No.1177 of 2009 and the Civil Petition No.1183 of 2009 arose out of the Writ Petition No. 2396 of 2007. In that writ petition the memo dated 13.02.2007 (Annexure-C to the writ petition), issued by the PSC was challenged. In the said memo, the PSC recommended 15 (fifteen) Physicians for making appointments in the posts of Associate Professor in medicine, although public advertisement dated 28.05.2006 was made for recruitment in 5 (five) permanent and 5 (five) temporary posts (Annexure-B. to the writ petition).

10. The learned Advocates for the petitioners in these civil petitions for leave to appeal contends, firstly, the PSC made its recommendations against the vacant posts existing at the time of advertisement and also on the subsequent vacant posts on the requisition of the concerned Ministry of the Government, as such, the said recommendations are legal and valid as those were made against vacant posts. Secondly, the writ-petitioners who participated in the selection process of the PSC cannot be termed as deprived and are not entitled to challenge the decision of the PSC when they were not selected, thirdly, the plea of non-identification of the nature of posts, as held by the High Court Division, do not impair the rights of the writ petitioners in any manner, fourthly, the PSC can recommend for recruitment of the candidates more than the posts advertised on the advise of the Government, fifthly, promotion to the posts of Professor, Associate Professor and Assistant Professor comes under the ambit of the terms and conditions of service of the Government as such, the writ petitions are not maintainable.

11. We have heard the learned Advocates for the petitioners, perused the judgment and order dated 23.07.2008, passed by the High Court Division and the papers enclosed with the petitions.

12. The writ petitioners are all physicians and surgeons. They were the aspirant candidates for the posts of Associate Professors for which an advertisement was made by the PSC. As such, they have an interest in the selection and recommendation process of the PSC, no matter whether they are selected or not. Besides, this process for recommendations by the PSC is not for promotion but for appointment to be made by the Government in the posts of Professors and Associate Professors. This process for selection, recommendation and appointment do not come within, the ambit of the words ‘the terms and conditions of persons in the service of the Republic’, as envisaged under Article 117 of the Constitution. As such, the contention that the writ petitions are not maintainable has got no substance.

13. The next question is whether the PSC made its recommendations against the vacant posts. Apparently, it did and it is not disputed in the writ petitions. The moot question is whether the PSC made its recommendations against the vacant posts as spelt out in the notification dated 28.05.2006 and the consequent advertisements. Admittedly, it did not. The PSC admitted so in all the impugned memorandums excepting the one dated 13.02.2007 (Annexure-F to the Writ Petition No. 2239 of 2007).

14. The contention of the PSC in this regard is that on the further requisition of the Government it is entitled to do so, even without further notification and advertisement.

15. The Public Service Commission (PSC) is a constitutional body. It is established under Article 137 of the Constitution. The functions of the PSC are narrated in Article 140 of the Constitution. Sub-Article (1) of Article 140 reads as follows:

“(1) The functions of a public service commission shall be-

(a) to conduct tests and examinations for the selection of suitable persons for appointment to the service of the Republic;

(b) to advise the President on any matter on which the commission is consulted under clause (2) or on any matter connected with its functions which is referred to the commission by the President; and

(c) such other functions as may be prescribed by law.

16. A nation cannot rise without the services of its men so that it can build its infrastructure. The PSC is charged with the delicate task of selecting the proper persons for the right job. The persons who would undertake the nation-building process in every sphere of the State, must be selected very cautiously, otherwise, the rot may creep into its system and cripple the life of the nation and ultimately lead it to the position of a failed State. That is why special care and attention is given for recruitment of the executives and the professionals for various departments of the State who are capable enough to undertake this nation-building process. The process started with the establishment of the PSC itself. The functions were not given in the hands of the political government but entrusted with an entirely independent constitutional body, completely free from any influence, either from the political government or anybody else, so that the PSC would be able to perform its function of selection of the executives and the professionals free from bias and with total neutrality, showing transparency in its functions. As such, on receipt of the requisition from the Government, advertisements inviting applications from the candidates are being made by PSC. No selection can be made, without proper advertisement. The advertisement contains, among others, required educational qualifications, number of vacancy etc. Generally, the PSC should recommend only the said number of successful candidates against the vacancy at the time of advertisement. If for some reason, the Government makes further requisitions, subsequent to the advertisement, then incorporating the total number of vacancies, a further advertisement should be made. Only in exceptional circumstances, in order to meet an emergent situation, this requirement of further advertisement may be relaxed but only in an emergency, otherwise not.

17. In the cases in hand, no such emergent situation has been made out on behalf of the PSC. Rather, the impugned memorandums give an impression that the PSC readily increased the number of the recommended candidates, merely on the asking of the Government, as if it is one of its departments. This is not the PSC as envisaged under Article 137 and Article 140 of the Constitution.

18. It appears that in each case, on the requisition made by the Government, the PSC readily enlarged the number of the recommended candidates without even considering the necessity for fresh advertisement, as such, the High Court Division rightly declared the impugned memorandums issued by the PSC as illegal.

19. We would now separately consider the impugned memorandums dated 13.02.2007, issued by the PSC (Annexure-F to the Writ Petition No.2239 of 2007).

20. The Civil Petition No.1225 of 2009 arose out of the Writ Petition No.2239 of 2007. In that writ petition, the memo dated 13.02.2007 (Annexure-F to the writ petition), issued by the PSC was challenged. In the said memo, the PSC recommended 12 twelve) candidates for making appointments in the posts of Associate Professors in Gynecology and Obstetrics although public advertisement dated 28.05.2006 was made for recruitment in 5 (five) temporary and 5 (five) permanent posts of Associate Professor (Annexure-D to the writ petition).

21. Unlike other memorandums, the PSC stated in its memo dated 13.02.2007 that the PSC advertised for appointment of two permanent posts of Associate Professors in the department of Gynaecology and Obstetrics and another 5 (five) permanent posts of Associate Professors and 5 (five) temporary posts of Associate Professors in the same discipline.

22. From perusal of the Memo dated 28.05.2006, it appears that the said notification advertised for 5 five) permanent and 5 (five) temporary posts of Associate Professors in the department of Gynaecology and Obstetrics in total 10 (ten) posts (Annexure-D to the Writ Petition No. 2239 of 2007). But the PSC in its memo dated 13.02.2007 speaks about 12 (twelve) vacant posts and claims that advertisement was also made on those 12 (twelve) posts when the notification dated 28.05.2005 shows 10 (ten) posts and not 12 (twelve).

23. Mr. Raflqul-ul-Haque, the learned Advocate, appearing for the petitioner, referring to Para-20, 23, and 25 of the petition and the notification dated 17.05.2005 (Annexure-B), submits that 2 (two) permanent posts of Associate Professor in the department of Gynaecology and Obstetrics had already been advertised earlier and with these 2 (two) posts and the 10 (ten) posts advertised in pursuance of the notification dated 28.05.2005, comes to 12 (twelve) vacant posts, as such, there was no excess number of recommendations than those of the 12 (twelve) vacant posts.

24. We have perused the notification dated 17.05.2005 (Annexure-B). It is apparent that on that date 2 (two) permanent posts in the department of Gynaecology and Obstetrics were vacant. In the meantime, by a notification dated 21.08.2005, the criteria of educational qualification for the post of Associate Professor was relaxed. It is also stated in the said notification that those who did not file any application can do so within 15.09.2005 and those who had already applied earlier need not file any application afresh.

25. It may be noted that by relaxing the educational qualifications of the prospective candidates, the number of vacancy would not necessarily be enlarged, though the number of candidates would obviously be increased. As such, on 21.08.2005, the vacancy in the post of Associate Professor in the department of Gynaecology and Obstetrics was still 2 (two) in number.

26. The memo dated 13.02.2007 (Annexure-F) refers to three requisitions from the Ministry of Health and Family Planning on 17.02.2005, 02.05.2006 and 07.05.2006, for 12 vacancies.

27. The supplementary affidavit sworn on 08.05.2008, filed on behalf of the PSC, disclosed at para-4 that the advertisement was published on 28.05.2006 for 10 posts in pursuant to requisitions dated 07.05.2006 and 12.03.2006. Those requisitions were annexed as Annexure-X and Annexure-Y.

28. It appears from those annexures that the memo dated 12.03.2006 contained the number of vacant posts in the department of Medicine. The memo dated 07.05.2006 stated that there were 5 (five) vacant posts in the department of Gynaecology and Obstetrics but the affidavit was silent about the memo dated 17.02.2005 and 02.05.2006 as referred to in the impugned memo dated 13.02.2007.

29. Rather, it is divulged in the affidavit in opposition sworn on 04.02.2008, filed on behalf of the PSC that the Ministry of Health by its letter dated 04.12.2006, informed the PSC to fill the posts in addition to the posts mentioned in the advertisement either by fresh advertisement or by the current advertisement. Apparently, the PSC made its recommendation without resort to fresh advertisement.

30. The picture as emerging from the papers on record is that on 17.05.2005 (Annexure-B) there were 2 (two) vacant posts in the discipline of Gynaecology and Obstetrics. On 07.05.2006 (Annexure-X) there were 5 (five) vacant posts. On 28.05.2006, there were 10 (ten) vacant posts for which advertisements were published (Annexure-D). Thereafter, on 04.12.2006, the Government asked the PSC to fill the posts in addition to the posts mentioned in the advertisement. Apparently, the PSC did exactly as requested by recommending 12 (twelve) candidates instead of 10 (ten), as advertised in pursuance to the notification dated 28.05.2006, on taking interviews on 12.12.2006 and thereafter (Annexure-E series).

31. It may be argued that the 2 (two) vacancies existing on 17.05.2005 were added to the vacancies as stated in the notification dated 28.05.2006, which brought the total number at 12 (twelve). But this argument is fallacious and not acceptable, because no positive step was taken on that notification dated 17.05.2005, such as, arranging of the interviews, consideration of the respective candidatures and recommendations. Apparently, interviews and other paraphernalias were taken only on the basis of the notification dated 28.05.2006 which disclosed 10 (ten) vacancies as on that date.

In that view of the matter, the High Court Division, is correct in taking the view that the PSC without lawful authority recommended the names of more candidates than was advertised in pursuance to the notification dated 28.05.2006.

Under the circumstances, the submissions of the learned Advocates appearing on behalf of the petitioners merit no consideration.

Accordingly, the petitions are dismissed.

Ed.

Source: 15 MLR (AD) (2010) 196

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