Appellate Division Cases
(Civil)
PARTIES
Government of Bangladesh, represent-ed by the Secretary, Ministry of Planning, Sher-E-Bangla Nagar, Police Station-Mohammadpur, District-Dhaka and others
………………………Petitioners (In both the cases).
Vs.
Jahangir Alam and ors…………………….. Respondents.( In C. P. No. 135 of 2005)
Md. Mostafa Kamal and ors. Order Respondents (In C. 9th March 2005 P. No. 136 of 2005) ………………………..Respondents
JUDGES
Syed J.R. Mudassir Husain CJ
Mohammad Fazlul Karim J
M.A. Aziz J
Amirul Kabir Chowdhury J
Article 102 of the Constitution
The project was implemented by the officers and staff of the Directorate of Agricultural Extension placing their services on deputation against sanctioned posts as contained in project proforma approved by the Government and the writ petitioners were appointed as supporting hands for implementation of the first phase of the strengthening plant Protection Services (SPPS) (3)
The officers and staff of the Directorate of Agricultural Extension placed their services on deputation against sanctioned posts as contained in project proforma approved by the Government and the respondents were appointed as mere supporting hands for implementation of the first phase of the project for the period form July 1991 to 30th June 2002 and were appointed purely on temporary and contract basis and that sometimes infrastructures along with manpower of a Development Project may be transferred to revenue budget but it is done considering the necessity of potentiality and subject to availability of the fund from the Government and that the writ respondent No. 4 (Project Director of the Project, Phase-II) was under obligation to act upon the decision of the Government and accordingly sent proposal to the writ respondent No.2, (Secretary, Ministry of Agriculture) to give approval for recruitment of 91 employees against 22 posts and the respondents have taken/ are taking action on the basis of policy decision of the Government (5)
He further submits that during the first phase of the project it comprised of five components including Integrated pest Management (IPM) but in the 2nd phase the DANIDA -part provided fund exclusively for IPM component only and as such actions of the respondents cannot be found fault with nor can be declared to be illegal. …(6)
ADVOCATES
A. J. Mohammad AH, Additional Attorney General, instructed by Md. Ahsan Ullah Patwary, Advocate-on-Record For the Petitioners (In both the cases) Mahbubey Alam, Senior Advocate, instructed by Chowdhury, Md Zahangir Advocate-On-Record For the Respondent Nos. 13, 6, 7, 9, 15, 26, 27, 34, 43 and 45 (In C.P. No. 135 of 2005) Not represented Respondent Nos.4, 5, 810,14,16-25, 28-33, 35-42, 44, 46 and 47 (In C.P. No. 135 of 2005) Mahbubey Alam, Senior Advocate, instructed by Chowdhury Md. Zahangir, Advocate-On-Record For Respondent Nos. 1, 14, 20, 25, 29, 30 and 32 (In C. P. No.136 of 2005) Not represented—Respondent Nos. 2-13, 1519, 21-24, 26-28, 31, 33 and 34 (In C.P. No. 136 of 2005):
ORDER
1. Amirul Kabir Chowdhury J :- Government of Bangladesh represented by the Secretary,
Ministry of Planning and four other writ respondents seek leave to appeal against the judgment and order dated 29.08.2004 passed by a Division Bench of the High Court Division in Writ Petition No. 8254 of 2002 making the rule absolute. In connected writ petition No. 4344 of 2003 the same Bench by order dated 29.08.2004 made the rule absolute. Against the aforesaid judgment and order civil Petition for Leave to Appeal No.
136 of 2005 has also been preferred at the instance of the same petitioners i.e. the Government of Bangladesh and four others. Both the petitioners arising out of the same subject matter and common question of fact and law being involved are disposed of by this single order.
2. The facts, in short, are that the respondents as petitioners filed the aforesaid writ petitions stating, inter alia, that to protect loss of crops due to insect pests the Extension Department of the Ministry of Agriculture started a project named “Strengthening Plant Protection Services (SPPS) Project “hereinafter referred to as the project and the respondents were appointed in the said project on different departments under various pay scales under different terms and conditions and that the project initially continued for five years from July-1991- June 1996 and thereafter it was extended for three years and again for two years and that there were correspondences in the Ministry of Agriculture to transfer the project to Revenue Budget and that an agreement was made between Government of Bangladesh and Denmark for Agricultural Sector Program Support and in the agreement provision has been made for implementation of 2nd Phase of the project and that Government gave sanction for keeping 29 posts which were earlier created at the time of starting the work of the project and by letter dated 25.11.2002 informed the office of the Chief Accountant of the Ministry of Agriculture about the Government sanction and that there has been amendment in the project papers on the basis of which the respondents (i.e. present petitioners) would have absolute right to engage/ appoint any person in the project without giving any opportunity to the writ petitioners to work in
any project and that as a result of the said amendment the writ petitioners have ben denied equal opportunity employment and as such they challenged the action in the writ
petitions and prayed for declaring the same to have taken without lawful authority.
3. The petitioners as respondents in the writ petitions contested the rules, filed affidavit-inopposition stating, inter alia, that the project was implemented by the officers and staff of the Directorate of Agricultural Extension placing their services on deputation against
sanctioned posts as contained in project proforma approved by the Government and the
writ petitioners were appointed as supporting hands for implementation of the first phase of the strengthening plant Protection Services (SPPS) Project for the period from July 1991 to 30th June 2002 and were appointed absolutely on temporary and contract basis and that sometimes infrastructures along with manpower of a project are transferred to revenue budget after completion of the project. But this is done purely considering potentiality and fund availability of the Government and that as per decision of the ECNEC meeting applications for appointment have been invited for the project phase II from the phase I project officers and staff and preference would be given to the experienced personnel of the Phase I project for the phase II and in that case the bar of age is also relxable and that there is no cause of action to file the writ petitions and the writ petitions were not at all maintainable.
4. The High Court Division after hearing the parties made the rules absolute and in writ Petition No. 8254 of 2002 held, “this Court finds that in the facts and circumstances of this case the amendments introduced in the Project Proforma by the DPEC operating to the detriment of the petitioner’s interest in securing continued employment in the project
are products of arbitrary and irrational exercise of discretionary power. As a consequence, the impugned orders in Annexure-P, Q and R flowing from such amendments are indeed to be held as being issued without lawful authority and to be of no legal effect. Consequently, this Court finds that all employees of the project engaged in Phase-I of the project shall be deemed to be continued to be employed in phase-II of the Project. In other writ petition i.e. writ Petition No. 4344 of 2003 the High Court Division held similar view mutatis mutandis. Hence are these petitions.
5. In support of the petitioners Mr. A.J. Mohammad Ali, learned Additional Attorney General submits, inter alia, that the officers and staff of the Directorate of Agricultural Extension placed their services on deputation against sanctioned posts as contained in project proforma approved by the Government and the respondents were appointed as mere supporting hands for implementation of the first phase of the project for the period from July 1991 to 30th June 2002 and were appointed purely on temporary and contract basis and that sometimes infrastructures along with manpower of a Development Project may be transferred to revenue budget but it is done considering the necessity of potentiality and subject to availability of the fund from the Government and that the writ respondent o. 4 (Project Director of the Project, Phase-II) was under obligation to act upon the decision of the Government and accordingly sent proposal to the writ respondent No.2, >• (Secretary, Ministry of Agriculture) to give approval for recruitment of 91 employees against 22 posts and the respondents have taken/ are taking action on the basis of policy decision of the Government.
6. He further submits that during the first phase of the project it comprised of five components including Integrated pest Management (IPM) but in the 2nd phase the DANIDA -part provided fund exclusively for IPM component only and as such actions of
the respondents cannot be found fault with nor can be declared to be illegal.
7. The learned Additional Attorney General has taken exception to the finding of the High Court Division made in the concluding portion of the judgment wherein the High Court Division held that all employees of the project engaged in phase-I of the project shall be demand to be continued to be employees in phase-II of the project and emphatically submits that such finding is outside the ambit of the High Court Division in disposing of application under Article 102 of the Constitution.
8. Mr. Mahbubey Alam, learned Counsel appearing on behalf of the respondent Nos. 1,2,3,6,7,9,15,26,27,34,43 and 45 in Civil Petition for Leave to Appeal No. 135 of 2004 and for the respondent Nos. 1,14,20,25,29,30 and 32 in Civil Petition for Leave to Appeal
No. 136 of 2005 opposes the petitions submtting, inter alia, that the project was approved
by the Executive Committee of National Economic Council (ECNEC) and that Director General of Agriculture Extension Department sent a letter dated 26.01.2002 to the Secretary, Ministry of Agriculture recommending transfer of the posts of the project to revenue budget from 1st July 2002 and from various correspondences it appears that after
June 2002 the second phase of the project was due to commence and that in the meantime
A Denmark and the Government executed agreement wherein provision has been made for implementation of the 2nd phase of the project and considering the facts and circumstances of the case the High Court Division taking a correct view made the rules absolute and there is no reason to interfere.
9. We have considered the submissions made at the Bar and perused the materials on record.
10. The submissions made on behalf of the petitioners appear to have substances and
merit consideration.
11. Leave is, therefore, granted to consider the following grounds: 1. For that the project was implemented by the officers and staff of the directorate of Agricultural Extension, placing their services on deputation against sanctioned post as contained in project proforma (PP) approved by the Government. The respondents were appointed as supporting hands for implements tation of the first phase of the Strengthening Plant Protection Service (SPPS) Project for the period from July 1991 to 30th June 2002 and were appointed absolutely on temporary and contract basis. 2. or that sometimes infrastructures along with manpower of Development Project are transferred to revenue budget after completion of the Project. This is done purely on the necessities of potentiality and fund availability of the Government and in this case the project was taken afresh in the 2nd phase.
3. For that the petitioner No. 4 acted upon the decision of the Government and accordingly sent proposal to the petitioner No. 2 to give approval for recruitment of 91 employees against 22 posts vide Annexure-P to the writ petition. Subsequently, on the direction of the petitioner No.l, petitioner No. 3 (Director General, Department of Agriculture Extension) sent proposal to petitioner No. 2 containing same materials and approval was accorded by the petitioner No.2 with the concurrence of the Minister of Agricultural vide Annexure-Q to the writ petition. The petitioner No. 4 acting upon the letter of approval for recruitment of officers and staff of 2nd phase containing direction (Annexure-Q to writ petition) invited applications from the interested candidates by notification vide memo the DFP for notification in the leading national news papers as a matter of public advertisement towards direct recruitment of the officers and staff of the 2nd phase of the said project as a matter of fresh recruitment. Petitioner No. 5 is acting here as desk officer only. This is the policy decision of the Government as contained in the project proforma. 4. For that during the 1st phase, the project was comprised of five components viz. i) Integrated Pest Management, ii) Plant Quarantine Services, iii) Vertebrate Pest Management, iv) Pesticide Administration and Quality Control, v) Surveillance, Forecasting and Early Warning System and for which budget was provided from both GOB and DANIDA fund. But in the 2nd phase the DANIDA part provided fund exclusively for IPM component only.
12. Preparation of paper book is dispensed Appellate Division Cases with as prayed for. (Civil)
13. Operation of the Order dated 29.08.2004 passed by the High Court Division in Writ petition Nos. 8254 of 2002 and 4344 of 2003 Syed J.R Mudassir Department of be stayed till disposal of the appeal. Husain CJ Narcotics Control M.M Ruhul Amin J Represented by its Amirul Kabir Director General 1,
14.The petitioners are directed to make the Chowdhury J Segunbagicha – Dhaka appeal ready for expeditious hearing.
Source: III ADC (2006) 920