IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
Writ Petition No. 6318 of 2009.
IN THE MATTER OF:
An application under Article 102(2) of the Constitution of the People’s Republic ofBangladesh
-And-
IN THE MATTER OF :
Md. Ruhul Amin and others
……………..……Petitioners
-Versus-
Bangladesh and others ……………….Respondents
Mr. Abdur Rahim, Advocate with
Mr.Md.Khalilur Rahman Bhuiyan, Advocate
………for the petitioner.
Mr. Masud Rana Mohammed Hafiz, Advocate
..for the respondent No.4
Heard on : 06.07.2010, 07.07.2010 & 11.07.2010
Judgment on 19.07.2010
Present:
Mr. Justice Moyeenul Islam Chowdhury
and
Ms. Justice Naima Haider
Naima Haider, J :
In this application engaging Article 102(2) (a) (ii) of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the act of the respondent No.4,creating and reserving the post of Deputy Manager (Sales), and showing the same as vacant in violation of the Service Regulations of Jiban Bima Corporation (Officers and Staff), 1992 (amended in January, 2004) shall not be declared to have been done without lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper. In support of their application the petitioners, fourteen in number, averred that they got appointed on varying dates during the period between 1999 and 2000 to the post of Assistant Manager as regular employees of Jiban Bima Corporation (Head Office). On several dates, again, the petitioners were elevated to the post of Assistant Manager and have been performing their duties with due diligence and competence. During this period all the petitioners had completed departmental training under Bangladesh Insurance Academy and obtained professional diploma, known as Insurance Diploma from the said Academy to pave their way upward, i.e., to that of Manager.
The service rules of the corporation divides the employees into two different categories, namely, those who are directly employed and those who were promoted from lower position. All the terms inclusive of those relating to benefits are guided by the Jiban Bima Corporation (Officers and Staffs) Service Regulations of 1992. Terms of service of those who are appointed to sell and collect policies from the potential customers are also regulated by the said Service Regulations.
The respondent No.3 duly promoted the petitioners to the rank of Development Manager in accordance with the Regulation. The next superior position for the petitioners is that of Deputy Manager, as provided in the Service Regulation. To get escalated to that position, the postulants are required to have seven years of experience in the post of Assistant Manager or Assistant Manager (sales), but there is no such post as that of Deputy Manager (sales) in the Service Regulations.
Some high handed officers of the Corporation with malafide intention created the post of Deputy Manager (sales) with ulterior motive only to deprive the directly recruited Assistant Managers to get on to the promotional ladder. Following a discussion between the Ministry of Commerce and Jiban Bima Corporation, an organizational setup was approved in 1984, clearly showing that there are only 114 post of Deputy Managers and there was no mention whatsoever about anything like Deputy Manager (sales). Neither the Jiban Bima Corporation (sales), the Branch Office Manual 1985 nor does the Service Regulations or Charter of Duties issued by the Ministry of Commerce, makes any reference to anything like that. The petitioners, along with others filed several applications to the Corporation, seeking to obstruct the promotion of the sales employees. Even the lawyer of the Corporation opined that the post of Deputy Manager (sales) is non-existent, either in the service rule or in the Corporation’s Organogram and hence there could be no promotion to the post of Deputy Manager (sales).
On 13.04.2008, the petitioner No.2 preferred an application to the respondent No.4, asking to be promoted in accordance with the Service Rules to the post of Deputy Manager. He also asked the authorities not to promote the sales employees to the said hierarchical position. A discussion on this subject at the 487th meeting yielded no result. As on 28.5.19 the Respondents has already promoted some sales employees to the post of Deputy Manager in defiance of the provisions as cited above and thereby subjected the petitioners to discriminatory treatment. A Demand of Justice Notice served on 6.9.2009 by the petitioners’ lawyer, also ended in fiasco and hence the petition.
The Respondents made serious attempt to thwart the Rule by filing a comprehensive affidavit in opposition denying virtually all the allegations, recognizing that there is no post of Deputy manager (sales). The Respondent nevertheless asserted that the Organogram of the Corporation which was implemented on 17.1.1984, specifically stipulates a position known as Deputy Manager (sales), although the same was neither included in the Service Regulation or in any other instrument. Their case is founded on the theme that notwithstanding absence of the position of Deputy Manager (sales), the same is, nonetheless, binding upon all employees and that the Organogram has been in existence for more than two decades and all the employees of the Corporation have been reckoning the Organogram as part of their Service Regulations. It has been asserted that the promotion of the sales employees have never been at the cost of the petitioners’ prospect to promotion and the management had never embarked upon any discriminatory move. It has also been alleged in the affidavit in opposition that the petitioners took recourse to suppression of facts by inscrypting some false statement.
When the Rule was taken for hearing by this Bench, Mr. Abdur Rahim, the learned Advocate for the petitioners, at the very out set submitted that the petitioners have already acquired more than nine years in service and are eligible to be promoted to the post of Deputy Manager. Mr. Rahim further contended that the respondents with a motive have confined the aforesaid posts by reserving and creating the post of Deputy Manager (sales) which he terms as illegal and without lawful authority. He further submitted that the petitioners have got legitimate expectation to be promoted. Mr. Rahim emphatically stated that the petitioners have a right to be secured in the position and such reservations of the post by the respondent No.3 offends the equality clause as guaranteed under Article 27 of the Constitution. Mr. Rahim finally submitted on the day of issuance of the rule, 13 post have been reserved for the Deputy Manager (sales) out of 114 post and 16 of them are still lying vacant.
Mr. Masud Rana Mohammed Hafiz, the learned Advocate appearing for the respondent No.4 submitted that the prospect of service of the petitioners was elaborately discussed at the 475th meeting and 487th meeting of the Board of Directors of the Corporation but the Board of Directors did not take any decision on this matter. He further submitted that the Organogram of the Corporation was declared in accordance with law in 1984 and that since then this Organogram has been in existence. No change to the said Organogram has been inserted so far.
The only question that we are required to resolve is whether by promoting the sales staffs of the corporation to the post of Deputy Manager (sales), the Rules of the Corporation were breached or not. There is no qualm on the contention that none of the instruments, relevant to the Regulation of service of conditions of the employees of the Corporation, make any provision for the post of Deputy Manager (sales), there are posts of Deputy Manager though.
It is true equally well that the Organogram of the Corporation, which was brought into being as early as 1984, depicts a post of Deputy Manger (sales). The Jiban Bima Corporation Chakuri Probidhanmala of 1992 is a secondary legislation as it was framed pursuant to power conferred by section 31 of the parent Act, i.e., Jiban Bima Corporation Act of 1973. On the other hand, the Organogram is not blessed with any such legislative status. They were formulated as guidelines only and hence, in the event of any conflict between the Regulations and Organogram, the provision of regulations must prevail. That necessarily follows that Respondents do not have any liberty to create the post of Deputy Manager (sales) and reserve that post for sales staff only. This does not, however, mean that the sale staffs cannot have any promotion prospect under the Service Regulation. They can climb on to the promotional ladder on the basis of equality like any other competing colleagues.
The above finding leads us to the irresistible conclusion that the projection of the post of Deputy manager (sales) in the Organogram was in fact in sharp contrast with what have been stipulated in the Service Regulations. That position cannot hence be maintained in law and it cannot be used as a reserved position for sales employees alone.
Moreover, a body created by a statute must act reasonably in the Wednesbury sense. Lord Greene M.R in the evergreen case of Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 K. B. 223 alluded to many grounds of attack which could be made against a decision, citing unreasonableness, bad faith, dishonesty, paying attention to irrelevant circumstances, disregard of the proper decision making procedure and held that each of these could be emcompassed within the umbrella term “reasonableness”. When reviewing and eventually dismissing the action for judicial review, Lord Greene M.R stated that the courts will not interfere with the discretion assigned to public authorities, provided that
- the corporation, in making that decision, took into account factors that ought not to have been taken into account, or
- the corporation failed to take into account factors that ought to have been taken into account, or
- the decision was so unreasonable that no reasonable authority would ever consider imposing it.
As observed by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service (All ER p. 951 a-b)., a decision will be said to suffer from Wednesbury unreasonableness if it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it”.
In the instant case, the authority took into account the factors that they should have excluded from consideration and failed to take into such account which they ought to have taken into consideration.
It must also not be forgotten that if an authority is to act intra vires, it must conduct itself according to a correct interpretation of law. In Breene v Amalgamated Engineering Union and Others [1971] 2 QB 175, Lord Denning M.R observed, “The discretion of a statutory body is never unfettered. It is a discretion which is to be exercised according to law.” In Re City of Montreal and Arcade Amusement Inc. et al, [1985] 1 S.C.R. 368, the Supreme ofCanada observed “the rule of administrative law is that power to make by laws does not include a power to enact discriminatory provision”. In the case in hand, we are constrained to hold that by reserving the posts of Deputy Manager (sales), the authority has acted beyond the scope of law, thereby, discriminating other Deputy Managers standing on the same footing.
In view of the discussions narrated above, the Rule deserves to succeed and the same is made Absolute.
The finding shall, however, not in any way prejudice the positions of those sales personnel who had already been promoted to the post of Deputy Manager. They shall remain Deputy Manager rather than Deputy Manager (sales). So far as the petitioners are concerned, they shall also be eligible to be promoted to that post subject, however, to other promotional criteria.
There is, however, no order as to cost.
Moyeenul Islam Chowdhury J.
I agree.