Government of Bangladesh Vs. Nurul Haque Miah and another.

Government of Bangladesh represented by Secretary, Ministry of Establishment &another  (Petitioners)

 

Vs.

 

Nurul Haque Miah and another. (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICES

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdul Rouf J

Bimalendu Bikash Roy Choudhury J

Judgment : December 8, 1996.

The Administrative Tribunals Act, 1980 (VII of 1981), Section 4(2)

The National Board of Revenue passed the impugned order refusing to grant antedated seniority. NBR is the final higher administrative authority for the purpose of granting antedated seniority so the question of filling an appeal to higher administrative authority does not arise…………………………(7)

Lawyers :

B Hossain, Deputy Attorney-General instructed by Md. Sajjadul Huq, Advocate-on -Record—For the Petitioners.

Nurul Haque Miah appeared in person—For the Respondent No. 1.

Not represented—Respondent No. 2.

Civil Petition for Leave to Appeal No. 451 of 1996.

Judgement

Latifur Rahman J.- Respondent No. 1 filed Case No. 218 of 1991 before the Administrative Tribunal, Dhaka and the same was dismissed on 12-12-95 Against the said judgment and order respondent No. 1 filed Appeal No. 181 of 1995 before the Administrative Appellate Tribunal, Dhaka and the same was allowed after setting aside the judgment and order of the Administrative Tribunal on 24-6- 96. Government of Bangladesh and the Secretary, Internal Resources Division, Ex-Officio Chairman of National Board of Revenue are seeking leave to appeal from the impugned judgment of the Administrative Appellate Tribunal.

2. Respondent No. 1 filed the aforesaid case praying for three declarations namely, (1) declaration that he was entitled to get ante-dated seniority as Assistant Commissioner of Taxes with effect from 5-8-74 and as Deputy Commissioner of Taxes with effect from 31-10-77 above respondent No. 2 Mr. Anwaruddin Ahmed, (2) declaration that he was entitled to get promotions with effect from the dates mentioned above and for correction of gradation list accordingly and also (3) a further declaration that the order passed by petitioner No. 2 the Secretary. Internal Resources Division and Ex officio Chairman, National Board of Revenue vide his Memo No. 3(27) Admin 3/76-453 dated 29-7- 1991 AD was illegal and without jurisdiction.

3. The case of respondent No. 1 is that, he joined the service as Agricultural Income Tax Officer, Cadre-II on 7-10-63 After the amalgamation of the Agricultural Income Tax Department with General Income Tax Department he was absorbed as an Extra Assistant Commissioner of Taxes on 1-7-76. At that time seniority was not determined. In the gradation list prepared on 24-1-85 respondent No. 1 was shown at serial No. 2 while respondent No. 2 Mr. Anwaruddin Ahmed was shown at Serial No. 4. Respondent No. 2 joined the non-gazetted post on 10-12-1945 and he was promoted to the post of Grade-II on 17-4-65. Thereafter respondent No. 2 was promoted to the post of Assistant Commissioner of Taxes on 6-6-77 and at that time he was allowed to ante-dated seniority with effect from 5-8-74. Respondent No. 1 passed the departmental examination of Taxes Officer in 1979 and submitted representation for promotion to the post of Assistant Commissioner of Taxes. His representation was forwarded to Bangladesh Public Service Commission for their views. The Commission after considering the cases recommended on 3-12-80 promotion of respondent No. 1 as Assistant Commissioner of Taxes. At that time one of his colleagues Mr. SK Safar Ali filed Writ Petition No. 911 of 1980 before the High Court Division claiming his seniority and, as such, the promotion of respondent No. 1 was kept in abeyance. Subsequently, he was promoted to the post of Assistant Commissioner of Taxes with effect from 7-7-82 by the order of the National Board of Revenue. In the meanwhile respondent No. 2 was promoted to the post of Deputy Commissioner of Taxes with effect from 31-10-77. Respondent No. 1 submitted a representation on 2-1-90 to the National Board of Revenue for giving him seniority over respondent No. 2 who was junior to him in the gradation list published in 1995 with effect from 5- 8-74 in the post of Assistant Commissioner of Taxes and from 31-10-77 in the post of Deputy Commissioner of Taxes. The National Board of Revenue by its memo dated 25-3-90 agreeing on principle to consider the case of respondent No. 1 sent it to the Public Service Commission for their opinion The Public Service Commission recommended that respondent No. 1 could be given ante-dated seniority as prayed for. Thereafter, the National Board of Revenue on 5-8-90 sought opinion from the Ministry of Establishment which in turn informed the National Board of Revenue by its Memo dated 30-9-90 that respondent No. 1 was entitled to ante-dated seniority in the post of Assistant Commissioner of Taxes with effect from 5-8-74 and in the post of Deputy Commissioner of Taxes with effect from 31-10-77 over his junior respondent No. 2. Thereafter, the National Board of Revenue again on some irrelevant considerations referred the matter to the Ministry of Establishment. Subsequently, the Ministry of Establishment under its Memo dated 28-2-91 informed the National Board of Revenue that when respondent No. 2 a junior to respondent No. 1 was given ante-dated seniority in the cadre respondent No. 1 was entitled to get the same privilege. Even thereafter the National Board of Revenue refused to give ante dated seniority to respondent No. 1. Hence the Administrative Tribunal case was filed by respondent No. 1 seeking the aforesaid reliefs.

4. Respondent No. 2 and the Secretary, Internal Resources Division and Ex-Officio Chairman, National Board of Revenue contested the case but the Government of Bangladesh, represented by the Secretary, Ministry of Establishment who was also a principal respondent in the Tribunal case did not contest the case. The case of respondent No. 2 and others are that respondent No. 2 and remaining other officers were promoted earlier to the post of Assistant Commissioner of Taxes before respondent No. 1 and accordingly, they took their seniority from the date of their respective promotion. In the post of Assistant Commissioner of Taxes, respondent No. 1 was never senior to them and, as such, respondent No.1 Mr Md Nurul Haque Miah is not entitled to the relief as prayed for. The order dated 29-7-91 was made on the basis of the recommendation made by a Sub-Committee constituted by the National Board of Revenue for determination of seniority of the officers of Bangladesh Civil Service (Taxation Cadre). Hence the case is liable to be dismissed.

5. The Administrative Appellate Tribunal while setting aside the judgment of the Administrative Tribunal found that the matter of granting ante-dated seniority of respondent No. 1 in the post of Assistant Commissioner of Taxes from 5-8-74 and Deputy Commissioner of Taxes from 31-10-77 above respondent No. 2 Md Anwaruddin Ahmed was repeatedly considered by the Ministry of Establishment and by the Public Service Commission on references by the National Board of Revenue. Finally, the Ministry of Establishment by its Memo dated 28-2-91 (Annexure 12) clarified the issue stating that when respondent No. l’s junior was given ante-dated seniority in the Cadre before the birth of Bangladesh Civil Service Cadre and Composition Rules 1980 respondent No. 1 was entitled to the same privilege. It is also found by the Administrative Appellate Tribunal that the National Board of Revenue had no authority under the Rule to constitute a Sub-Committee in the matter of giving promotion and the Sub-Committee cannot legally act contrary to the recommendation of the Public Service Commission and the Ministry of Establishment and, as such, the impugned order dated 29-7-91 was held to be illegal and without jurisdiction.

6. Mr. B Hossain, learned Deputy Attorney- General appearing for the petitioner, submits only one ground for our consideration, that respondent No. 1 filed the case before the Administrative Tribunal without preferring any appeal as contemplated under the proviso to sub-section (2) of section 4 of the Administrative Tribunals Act, 1981 and, as such, the case before the Tribunal was not maintainable.

7. This argument as to the jurisdiction of the Administrative Tribunal in entertaining the case without preferring any appeal before a higher administrative authority was not in fact raised before the Administrative Tribunal and Administrative Appellate Tribunal. Respondent No. l representation for getting ante-dated seniority was being considered by the relevant authorities namely, the National Board of Revenue, the Ministry of Establishment and Public Service Commission from 2-1-90. Ultimately, National Board of Revenue passed the impugned order dated 29-7-91 refusing to grant ante-dated seniority to the petitioner in spite of the recommendations of the Ministry of Establishment and the Public Service Commission. This impugned order is, in fact, the order of a higher administrative authority as because the officers of the taxation department are under the administrative control of the National Board of Revenue and the National Board of Revenue is, in fact, the final higher administrative authority for the purpose of granting ante-dated seniority to respondent No.1. Hence the question of filing any appeal to higher administrative authority for the purpose of granting ante-dated seniority to respondent No. 1 does not arise. The representation of respondent No. 1 having been turned down by the National Board of Revenue which is the higher administrative authority in the case of respondent, the question of preferring any further appeal does not arise in the facts of this case.

The petition is dismissed.

Ed.

Source : 53 DLR (AD) (2001) 59

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