Government of Bangladesh and others (Appellants)
Md. Salahuddin Talukder (Respondent)
Syed JR Mudassir Husain CJ
Md Fazlul Karim J
MA Aziz J
Amirul K Chowdhury J
Judgment dated : November 30, 2004.
The Constitution of Bangladesh, 1972, Articles 133 and 136
The Non-Cadre Class I and II Gazetted Officers (Customs Excise and VAT) Appointment and Service Terms and Conditions Act, 2000 (XX of 2000), section 8
Provision invoking Article 136 of the Constitution has been made for creation, amalgamation and unification if any such posts but has only provided certain provision for transfer of First and Second Class Officer (Non-Cadre) in their respective category of posts inter se eligible for transfer belonging to Customs Department following the provision of Article 133 and, as such, the same is not ultra vires of Article 136 of the Constitution…………………………(14)
Cases Referred To:
Azizul Huque Sikder and others vs Collector of Customs 49 DLR (AD) 172; Mujibur Rahman vs Bangladesh 44 DLR (AD) 111; JB Sampath Kumar vs Union of India, AIR 1937 SC 387 and Chopra vs Union of India AIR 1987 SC 357.
AJ Mohammad Ali, Additional Attorney-General, instructed by Md. Ahsanullah Patwary, Advocate-on-Record—For the Appellants.
Dr. Kamal Hossain, Senior Advocate (Mainul Hosein, Senior Advocate with him), instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent.
Civil Appeal No. 12 of 2003.
(From the judgment and order dated 15th and 16th April 2002 passed by the High Court Division in Writ Petition No. 5981 of 2000).
Md. Fazlul Karim J.- This appeal by leave at the instance of the writ-respondent-appellants arose out of Civil Petition No. 888 of 2002 filed against the judgment and order dated 15th and 16th April, 2002 of the High Court Division passed in Writ Petition No. 5981 of 2000 making the Rule absolute declaring section 8 of the Non-Cadre Class-I and II, Gazetted Officer (Customs Excise and VAT) Appointment and Service Terms and Conditions Act of 2000 being Act No. XX of 2000 to be violative of Articles 133 and 136 of the Constitution and, as such, illegal and without lawful authority and consequently, the impugned order No. 7(2) Shu-Va:Pro-3/2000/613 dated 20-8-2000 as corrected by order dated 28-8-2000 collectively marked as Annexure-E to the writ petition issued by writ respondent No.3 under section 8 of the aforesaid impugned Act was declared to have been made without lawful authority and of no legal effect and section 13 of the aforesaid impugned Act repealing the service rules of the Principal Appraiser, Appraiser and others from “Ka to Chha” so far relates to the writ petitioner was declared to have been passed without any lawful authority.
2. The respondent filed the writ petition stating, inter alia, that the respondent was appointed as an Appraiser in the Customs House, Chittagong on 1-9-1990 by office Memo No. 1(11) admn. 11/83/1007 dated 26-6-1983 issued by the National Board of Revenue. The organisational set-up of the Collectorate of Customs, Customs House, Chittagong has been shown in lineal order wherein the organisational hierarchy has been maintained. The post of Appraiser in that organisational hierarchy has been shown at serial No. 16, the post of Inspector at serial No. 17, the Office Superintendent at serial No. 18, Preventive Officer at serial No.20, and the Stenographer at serial No. 23, the duties and the recruitment Rules of these posts are also separate. By the said Memo the Government also increased the scale of pay of the Preventive Officers. A group of promoted Appraisers and others claimed seniority over the directly recruited Appraisers on the basis of the above memo dated 26-6-1983 stating that their scales of pay as Preventive Officers had been raised and that their pay scale was similar to the post of Appraiser and the promotion as Appraiser was merely a formality and paper transaction. Their case went up to the Appellate Division and the Appellate Division by its judgment and order dated 25-3-1997 passed in Civil Appeal No. 45 of 1995 dismissed the appeal. The Appellate Division held that Appraiser and Inspectors are two distinct grades of officers and unless amalgamated by law they cannot be treated as equivalent to each other 49 DLR (AD) 172). Subsequently, the Government passed the impugned Act No. XX of 2000 under Article 133 of the Constitution and thereby posts of different grades were made equivalent to each other and inter-changeable and inter-transferable. After publication of the impugned Act No. XX of 2000 the respondent was transferred. The respondent then moved the High Court Division in the writ jurisdiction challenging the transfer order and the vires of section 8 of Act No. XX of 2000 and a Rule was issued on the ground that the seniority of the respondent was taken away by passing the impugned Act and the Act did not empower the Government to claim that the posts of Preventive Officer/Appraiser/Inspector and Intelligence Officer were of equal status and, as such, the posts were inter-transferable and inter-changeable.
3. Leave was granted to consider:
“Mr. A Razaque Khan, the learned Additional Attorney-General, appearing for the petitioner, submits that the learned Judges of the High Court Division erroneously and illegally held that section 8 of the impugned Act No. XX of 2000 is ultra vires of article 133 and 136 of the Constitution and that reorganisation of service by creation, amalgamation or unification of service can be done only through resort to the provision of Services (Reorganisation and Conditions) Act, 1975 (Act XXXII of 1975) and consequently in absence of that the impugned order of transfer dated 20-8-2000 corrected as 28-8-2000 is illegal.”
4. Mr. AJ Mohammad Ali, the learned Additional Attorney-General appearing for the appellants, submits that the learned Judges of the High Court Division erroneously and illegally held that section 8 of the impugned Act No. XX of 2000 is ultra vires of Article 133 of the Constitution and that such reorganisation of service by creation, amalgamation or unification of service can be done only through resort, to the provision of Services (Reorganisation and Conditions) Act, 1975 (Act XXXII of 1975) and, as such, for failure of the same the impugned order of transfer dated 20-8-2000 corrected as on 28-8-2000 is illegal. The learned Additional Attorney-General has further submitted that that post of Inspector was treated differently under different service rules prior to coming into operation of Act No. XX of 2000 and the said post together with the posts of Appraiser, Preventive Officer and Intelligence Officer have been shown under the same serial number abolishing the old setup and accordingly, the alleged transfer of the respondent along with other officers of the same category was done in accordance with law. The learned Additional Attorney-General has further submitted that the impugned order of transfer and the relief claimed by the respondent are relating to the terms and conditions of the service which are amenable within the jurisdiction of the Administrative Tribunal and accordingly, the High Court Division had no jurisdiction to adjudicate the dispute in view of the Article 117(1) of the Constitution and, as such, the impugned judgment is liable to be set aside.
5. Dr. Kamal Hossain with Mr. Mainul Hosein, the learned Counsel appearing for the respondent submit that making the separate and distinct posts of Appraiser/ Inspector/Preventive Officer and Intelligence Officer inter-transferable and affecting the seniority and varying their terms and conditions of service of the respondent pursuant to the impugned section 8 of the Act 20 of 2000 is beyond the scope of Article 133 of the Constitution, inasmuch as Article 133 does not empower the Parliament to vary the terms and conditions of the service of the persons in the service of the Republic, such inter-transferability and consequent seniority being a variation of the writ-petitioner’s terms and conditions of service is only possible under Article 136 of the Constitution by way of amalgamation of services. As such, the impugned section 8 of the Act 20 of 2000 is ultra vires Articles 133 and 136 of the Constitution. The learned Counsel further submitted that the impugned section 8 of the Act 20 of 2000 and the impugned order of transfer dated 20-8-2000 as corrected by order dated 28-8-2000 (Annexure-E to the writ petition) pursuant to the impugned section 8 of the Act 20 of 2000 is also violative of the fundamental rights of the writ-petitioner as guaranteed under Articles 27, 28 and 31 of the Constitution rendering the impugned order to have been issued without lawful authority and of no legal effect. The learned Counsel further submitted that the impugned section 8 of the Act 20 of 2000 and the impugned order of transfer dated 20-8-2000 as corrected by order dated 28-8-2000 (Annexure-E to the writ petition) pursuant to the impugned section 8 of the Act 20 of 2000 are also malafide, arbitrary and have been passed in colourable exercise of power and, as such, the same have been issued without lawful authority and are of no legal effect.
6. The material parts of the impugned section 8 of Act XX of 2000 reads as under:
8.badli ettadi topshile ullekhito –
(ka) Prothom srenir gazetted padshomuho parosporic;
(kha) Ditio shrenir gazetted padshomuho parosporic badli joggo pad hoite ebong ukto padshomuhe kormorato jekono karmokartake kartipokho Nirbahi adesh dara jatio rajosso Board er odhinosto shulobhabon,shulko,abgari o vat comossinerate ba poridaptore shomo morjadar onno je kono pode badli karite paribe.
1.Prothom shrenir gazetted pad:
Principal appraiser/Superintendent,shulko,abgari o vat / Superintendent,Prevenive service / Superintendent,goyenda .
2.Ditio shrenir gazetted pad:
Inspector/Enterprizer/ Preventive service/ goyenda officer
7. From the above, it appears that the Act has authorised the authority to make transfer, by the office orders, of the officers of the 1st Class Gazette posts interse their class i.e., transfer interse amongst their respective category of posts eligible for transfer maintaining their respective position in the category. Similar is also the case of the officers of the Second Class Gazettes posts.
8. The main argument of the respondents is that the office memo dated 10-8-1994 which is an order of implementation cell of the Ministry of Finance, Government of Bangladesh stating that as per approval of Martial Law Committee dated 26-6-1983 of the National Board of Revenue in respect of organisational set-up of the Collector of Customs, Customs House, Chittagong the scale of pay of the Preventive Officer is increased to Taka 470-1135 from Taka 425-1035 whereby the two posts of Preventive Officer and Appraiser were put in the same pay scale by Memo dated 26-6-1983 by way of amalgamation as recruitment for the same are different and the duties for two posts are distinctly separate, wherein the Appraiser has been shown at serial No. 16 and the post of Preventive Officer was shown in serial No. 20. Nothing has been placed before us to show that the post of Appraiser and the Preventive Officer have been amalgamated pursuant to section 5 of the Services (Re-organisation) and Conditions Act, 1975 prescribing reorganisation for uniformity in grade and other terms and conditions of the service of the employee employed in the service of the Republic. Thus the respondent Preventive Officer did not become appraiser automatically simply because of the alleged unification of the pay scale. On perusal of the notification No. MF(ID) 1-3/77/522 dated 13 May 1978, it appears that the Implementation Division of Ministry of Finance provided that “1. The new National Grade and Scale of Pay will be called New National Scale of Pay without the No. 1 to XXI prefixed to them.” whereby showing that the Government has altogether given up the concept of the grade of service of the Republic.
9. However, the post of Inspector, Appraiser, Preventive Officer, Intelligence Officer were made 2nd class gazetted posts vide notification dated 6 June, 1992 and their pay scale was fixed at scale Taka 2300-4480 that due to their different nature of works as such their posts cannot be grouped together and section 8 of the impugned Act is violative of fundamental right guaranteed under Articles 27 and 31 of the Constitution as the Act gives the authority arbitrary power in the absence of any guideline and framing of rules. The classification of the 1st class and 2nd class (Non Cadre) Gazetted posts meaning thereby that all persons in their respective class are equal and similarly situated and are treated alike and similar” people would be dealt with in a similar way and the Act is being applied uniformly to all members of their respective class. Thus the classification made under section 8 of the Act XX of 2000 based on distinctive characteristics of the respective class of officers of 1st class and 2nd class with reasonable basis having nexus to the object to be achieved, could not be assailed as violative of the Articles 27 and 31 of the Constitution.. The post of Inspector, Appraiser, Preventive Officer and Intelligence Officer were previously 3rd Class posts and their appointing authority was Commissioner/Director General and at that time the transfers were made by their appointing authorities. Upon upgradation of the said post to second-class gazetted post (Non-Cadre) their appointing authority is the Chairman and accordingly, the appointing authority has transferred the respondent as an Inspector under Rajshahi Commissionerate under the provision of section 8 of Act No. XX of 2000.
10. The High Court Division has found exception to the impugned order holding that the impugned order in ultra vires Articles 133 and 136 of the Constitution rendering the same declared to be illegal and of no legal effect. Article 133 of the Constitution provides that subject to the provision of the. Constitution, Parliament by law could regulate the appointment and condition of service of person in the service of the Republic and in order to fulfill the purpose and intent of Article 133 the Parliament has promulgated law regulating the service of First and Second Class Gazetted Officer (Non Cadre) posts by way of First and Second Class Gazetted post (Customs, Excise and VAT) Appointment and Terms and Conditions and Service Act, 2000 (Non-Cadre). The said Act is to regulate the conditions, appointment and terms and conditions of service of the First and Second Class (Non Cadre) Officer working in the Customs Department under the National Board of Revenue and the same not being contrary to the purpose and purport of Article 133, by no means could be termed to be ultra vires the said provision of the Constitution.
11. Article 136 of the Constitution provides that provision may be made by law for the reorganisation of the Services of the Republic by creation, amalgamation or unification of the service and, as such, may vary or revoke any condition of the service of a person employed in the service of the Republic.
12. Accordingly, the Government has promulgated the Service (Reorganisation) and Conditions Act, 1975 for prescribing uniformity of grades and scale of pay and other terms and conditions of service for person employed in the service.
13. Section 5 of the said Act reads as follows:
“5. Power of Government to prescribe unified grades and scales of pay, etc.—(1) The Government may, with a view to bringing uniformity in the grades and scales of pay of different persons or classes of persons employed in the service of the Republic or of any public body or nationalised enterprise, by order notified in the official Gazette, prescribe grades and scales of pay and other terms and conditions of service for all or any such persons or classes of persons”.
14. The said provision invoking Article 136 has been made for creation amalgamation and unification of the service but section 8 of Act No. XX of 2000 has not made any such post or amalgamation or unification of any such posts but has only provided certain provision for transfer of First and Second Class Officer (Non-Cadre) in. their respective category of posts interse eligible for transfer belonging, to Customs Department following the provision of Article 133 and, as such, the same is not ultra vires the provision of Article 136 of the Constitution.
15. In the instant case, nothing has been shown to us to establish that the respective posts mentioned as the Second Class Officer (Non-Cadre) have been amalgamated but the posts having equal scale of pay has been categorised and provision has been made for interse transfers in the posts eligible for transfer without affecting the respective rights of the respective officers.
16. The learned Additional Attorney-General has further argued that the relief claimed by the writ petitioner was related to the terms and conditions of the service which are amenable within the jurisdiction of the Administrative Tribunal ousting the writ jurisdiction of the High Court Division, inasmuch as no disputed question of fact as sought to be raised by the writ petitioner could be resolved by the High Court Division in its writ jurisdiction.
17. The High Court Division found that since the writ petitioner has challenged the vires of section 8 of Act XX of 2000 the writ petition is maintainable.
18. We have already found that the said provision is not ultra vires of Articles 133 and 136 of the Constitution and we are also of the view that no fundamental right as guaranteed in Article 27, 28 and 31 of the Constitution have been infringed but the impugned order of transfer was lawfully and validly passed and in any view of the matter, the writ petition challenging taking away of certain seniority and the gradation list have been done designedly in order to obviate the bar of section 4 of the Administrative Tribunal Act, 1980 providing that the High Court Division had no jurisdiction to adjudicate the dispute regarding terms and conditions of service which obviously include the instant transfer in view of the provision of Article 117(2) of the Constitution.
19. In the case of Mujibur Rahman vs Bangladesh reported in 44 DLR (AD) 111 this Court held, inter alia, that:
“The learned Additional Attorney-General who brought that decision to our notice on his own referred to Article 44(1) of the Constitution that guarantees the right to move the High Court in accordance with clause (1) of Article 102 for the enforcement of the rights conferred by Part III of the Constitution.
Within its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice as well as for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising of sub-clause (a), but such tribunals cannot, like the Indian Administrative Tribunals in exercise of a more comprehensive jurisdiction under Article 323A see SP Sampath Kumar vs Union of India, AIR 1937 SC 387 (Para 16) and JB Chopra vs Union of India AIR 1987 SC 357 (Para 2), strike down any law or Rule on the ground of its constitutionality. A person in the Service of the Republic who intends to invoke fundamental right for challenging the vires of a law will seek his remedy under Article 102(1), but in all other cases he will be required to seek remedy under Article 117(2). An aggrieved person may, out of desperation or just for taking a sportive chance in the summary writ jurisdiction, allege contravention of some fundamental right which may turn out to be frivolous or vexatious or not even remotely attracted in his case. The Court is, however, to be on guard so the great value of the right given under Article 102(1) is not frittered away or misused as a substitute for more appropriate remedy available for an unlawful action involving no infringement of any fundamental right.”
20. We have no reason to differ with the views expressed therein, rather, in order to uphold the constitutional mandate high, we respectfully reiterate ,that no Court including High Court Division shall entertain any proceeding or make any order in respect of any matter falling within the jurisdiction of such tribunal as enshrined in Article 117(2) of the Constitution. The right to move the High Court Division in accordance with Article 102(1) of the Constitution for enforcement of the fundamental rights conferred by Part III thereof is itself a fundamental right guaranteed under Article 44(1) thereof and the High Court Division itself having been entrusted with the specified jurisdiction under Article 102(1) of the Constitution to exercise such powers thereunder should exercise such power on specified fields without offending other provisions of the Constitution, for the simple reason that a right to judicial review under Article 102(2) is neither a fundamental right nor a guaranteed right i.e., to be precise it is not an all-weather remedy nor a remedy for all wrongs, which is available only when there is no other equally efficacious remedy provided by law.
The appeal is accordingly; allowed without any order as to costs. The impugned judgment and order dated 15th and 16th April, 2002 making the Rule absolute in Writ Petition No. 5981 of 2000 are hereby set aside and the Rule nisi accordingly stands recalled.
Source : 2006 (XIV) BLT (AD) 60