Appellate Division Cases
Government of the People’s Republic of Bangladesh.
represented by the (In C.A. No. 225/2000) Secretary. Ministry of Finance. Internal Resources Division and the Chairman, National Board of Revenue, Segunbagicha, Dhaka and others………………………………………….Appellants
S.M. Fariduddiin, & Abdul Matin Khan and others……………. Respondent
Mahmudul Amin Choudhury CJ
Mainur Raza Chowdhury J
Md. Ruhul Amin J
Mohammad Fazlul Karim J
Government of the People’s Republic
JUDGEMENT DATE: August 20th, 2001
Bangladesh and others, Vs. Mohammad Faruque 51 DLR (AD) 112, Article 152(1) of the
The Administrative Tribunal has no authority to pass any order of stay or injunction
but when a person is transferred from one place to another he is to follow or abide by that order. If by the order of transfer lany terms and conditions of service is violated his remedy lies before the Administrative Tribunal. But it can not be a ground to issue an order of stay by the High Court Division only on the ground that the Administrative Tribunal has no authority to pass any such order ….(5)
Civil Appeal Nos. 225 And 226 of 2000 (From the judgment an”d order dated 16.8.2000
and 21.8.2000 passed by the High Court Division in Writ Petition Nos. 4165 and 4380 of 2000)
Mr. Mahmudul Islam, Attorney General, instructed by Mrs, Sufia Khatun, Advocate-on-
Record. .. For appellants (In both the appeals)
Mr. Rokanuddin Mahmud, Senior Advoacte, instructed by Mr. Md. Aftab Hissain, Advocate-on-Record…. For respondents (In both the appeals)
1.Mahmudul Amin Choudhury C. J. These two appeals are taken up for disposal as common question of facts and laws are involved. Both the writ petitioners were appointed appeasers from surplus personnel and promoted to the post of Principal Appraiser on 26.111996 and their manes have been published in Bangladesh Gazette on 27.3.1997 . The present appellant Commissioner of Customs transferred writ petitioner-respondent on 16.5.2000 and posted them in export sub-Team (Ka) as Principal Appraiser. Both the respondents were appointed on 30.7.2000 as Superintendent, Shulka, Excise and VAT Commissioner, Chittagong and against that order they moved the Administrative Tribunal wherein they filed an application praying for an order of stay but failed there, then they filed Writ Petition Nos. 4165 and 4380 of 2000 before the High Court Division challenging the order of transfer and posting on various grounds and the High Court Division passed the order of stay against which the present appellants preferred petition for leave to appeal before this Division, In both the appeals the facts are similar and the points raised are identical and leave was granted on the following terms :”Me. Mahumdul Islam, learned Attorney General for the petitioners in both the petitions submits that the order dated 30.7.2000 relates to the terms and conditions of service and in view of the provision of article 113 of the Constitution the High Court Division has no jurisdiction over the matter and as such the High Court Division was wrong in issuing the Rule and staying operation of the order dated 30.7.2000 . He further submits that the transfer order has already been given effect to prior to the issuance of the stay order and as such the same is liable to be set aside.” Both the parties put in their concise statements but at the time of hearing only appellants appeared through the learned Attorney General but none appeared on behalf of the respondent.
2. Points at issue in this matter is very short which is whether the High court Division has jurisdiction to entertain a writ petition relating to transfer of a Government servant and at the same time issuing order of stay of the order of transfer. The High Court Division passed the impugned order as follows : “Let a Rule Nisi be issued calling upon the respondents to show cause as to why the operation of the impugned order dated 0.7.2000 passed by respondent No 2. contained in Nathi No. 8(10) /Shu :Bha: Pro: 1/2000/1990 (4) (Annexure-E) should not be stayed till the disposal of Case No. 205 of 2000 pending in the Court of Administrative Tribunal, Dhaka or such other or further order or orders passed as to this court may seem fit and proper. Le the operation of the said impugned order dated 30.7.2000 be stayed till 19.10.2000”
3. The same type of order was passed by the High Court Division in Writ Petition No. 4380 of 2000 . So it appears that the nature of the impugned order passed by the High Court Division in both the writ petitions are same and similar.
4. We have gone through the order passed by the High Court Division and it appears to us that this is a queer and peculiar type of order passed by that Division. In Writ Petition No. 4165 of 2000 only a Rule was issued in respect of order dated 30.7.2000 and that too asking the respondents to show cause why the observance of the said order dated 30.7.2000 should not be stayed till disposal of case No. 205 of 2000 pending before the Administrative Tribunal, Dhaka and similar order was also passed in the other writ petition. So it is clear that only the transfer orders have been in question in both the writ petition and nothing else. There is no complain in the Rule against violation of any fundamental right of any of these writ petitioners. The order passed by the High Court Division on both the writ petitions are on the very face illegal and we cannot think how a Division Bench could pass such an order. Such matters have been set at rest by this Division in the case of Government of Bangladesh and others, Vs. Mohammad Faruque reported in 51 DLR (AD) 112 wherein this Division has held as follows :” It is true that if the Notification dated 10.9.96 has the force of law in terms of Article 152(1) of the Constitution then he loses the protection of law and has not been treated in accordance with law if the Notification is violated. But all violations of all kinds of law are not violations of fundamental right, the protection from transfer from one place to another which the respondent allegedly enjoys is protection in connection with his terms and conditions of service He has no fundamental right of no-transferability in his service. . If there is a violation of any instructions having the force of law touching upon his terms and conditions of service, the Constitution requires him to take recourse to the specific remedy provided in Article 117 of the Constitution. Violation of terms and conditions of service may indeed by a violation of law. but if a specific remedy is provided in the Constitution for remedy then that specific remedy shall be availed of by the aggrieved person. The decision of the High Court Division that the respondents fundamental right under Articles 27.29 and 31 of the Constitution have been violated is not well grounded in law. The High Court Division ought to have held that the writ petition was not maintainable.”
5. The fact and the law invoked in these two appeals are same and similar. The High Court Division in passing the impugned orders have overlooked this latest decision of this Division on transfer matters. It may by argued that the Administrative Tribunal has no authority to pass any order of stay or injunction but when a person is transferred from one place to another he is to follow or abide by that order. If by the order of transfer lany terms and conditions of service is violated his remedy lies before the Administrative Tribunal. But it can not be a ground to issue an order of stay by the High Court Division only on the ground that the Administrative Tribunal has no authority to pass any such order This has been well settled by this Division on the aforesaid decision. In view of the clear decision by this Division we hold that the High Court Division committed gross illegality in passing the aforesaid orders. The appeals are accordingly allowed without cost.
6. The impugned orders passed by the High Court Division on 16.8.2000 and 21.8.2000 in Writ Petition Nos. 4165and 4380 of 2000 respectively are hereby set aside and the writ petitions are found to be not maintainable.
Source : I ADC (2004),77