Appellate Division Cases
(Civil)
PARTIES
M. M. Mahboob and other ………………………………………..Appellants.
(In C.A. No. 199/2000)
Government of Bangladesh represented by the Secretary. Ministry of Establishment
Appellants (In C.A. No. 199/2000)
-Vs-
Judgment SK. Abdur Rashid and others…………………………..Respondants
JUDGE
Md. Ruhul Amin J
Syed J.R. Mudassir Husain J
M.M. Ruhul J
DATE OF JUDGMENT
20th January 2004
Banlgadesh Civil Service Recruitment Rules. Its application and jurisdiction of court
Writ petition was not maintainable as it related to enforcement of terms and conditions of service and right to promotion and their remedies lie before the Administrative Tribunal which has the exclusive jurisdiction over such matters (5)
Civil Appeal No. 199-200 Of 2000
(From the Judgment and Order dated 13th July, 2000 passed by the High Court division in Writ Petition No. 700 of 2000)
Rokonuddin Mahmud, Senior Advocate, instructed by A.S.M. Khalequzzaman, Advocate-on-Record For the Appellants (In C.A. No. 199/200)
Fida M. Mahal, Additional Attorney General, instructed B. Hossain, Advocateon-Record For the Appellant.
(In C.A. No. 200/2000)
Tania Amir, Advocate, instructed by Aftab Hossain Advocate on-Record. For the Respondent Nos. 1-10
(In C.A. No. 199/2000)
Khondker Mahbubuddin Ahmed, Senior Advocate Subrata Chowdhury, Advocate with him) instructed by Md.Nawab AH, Advocate-on-Record For Respondent Nos. 11-17 (In C.A. No. 199/2000)
B. Hossain, Advocate-on-Record….. For Respondent Nos. 18-21 (In C.A. No. 199/2000
Not represented Respondent Nos. 1-10.(In C.A. No. 200/2000)
JUDGMENT
1. Syed J. R. Mudassir Husain J:- Civil Appeal No. 199 of 2000 has been filed by the added writ respondents of the Writ Petition No. 700 of 2000. The writ petition was filed by the writ petitioner respondent Nos. .1-10 and the added writ petitioner respondent Nos. 11-17. Civil Appeal No. 200 of 2000 has been filed by the Government of the Peoples Republic of Bangladesh, represented by the Secretary,
190 M. M. Mahboob & Bangladesh vs SK. Abdur Rashid (Syed J.R. Mudassir Husain) III ADC (2006)
Ministry of Establishment and three others. Both the appeals by leave have arisen from the judgment and order dated 13.7.2000 passed by the High Court Division in the aforesaid writ petition making the Rule absolute. Since both the appeals involve a common question of law upon similar facts between the common parties have been heard together and this common judgment will govern both of them.
2. The Case of the appellants, in Civil Appeal No. 199 of 2000, in short, is that the writ petitioners who are the respondent No. 1-10 filed the above writ petition before the High Court Division challenging memo No. ^W V *fM-:>(^-0^/^/8 H dated 4.1.2000 (Annexure-A to the writ petition). Writ petitioners were appointed to the post of Assistant Commissioner in B.C.S Administrative Cadre on the recommendation of the PSC and they joined their posts on various dates between 27.10.1983 and 26.12.1983. By memo dated 7.12.1974 posts of Circle Officer (Development) were abolished by the Ministry of Finance and 465 Class -1 Posts of Deputy Magistrate, 50% of which were to be filed up by promotion from amongst erstwhile E.P.C.S. Class-II officers and the remaining 50% post by direct recruitment.The Ministry of Establishment subsequently by memo dated 14.06.1976 abolished 465 posts of Circle Officer (Development) and placed them in grade V which is the initial grade for Class-I Cadre Officer. Thereafter, the said Ministry by memo dated 28.6.1977 decided to fill up the said 465 posts in the manner namely 50 %, that is, 233 posts by promotion, 30 %, that is, 139 posts by examination form amongst erstwhile EPCS Class-II officers, Election Officer, Sub-Registrars and District-Registrars, Project Implementation Officers and Thana and Sub-Division Educational Officers and Sub- Divisional Ansar Adjutants; and 20 %, that is, 93 posts by direct recruitment. The said Ministry by memo dated 2.11.1975 and 20.7.1976 promoted 233 officers to Grade V being 50% of the said 465 up graded posts, The Ministry of Establishment also arranged in 1977 written examination to be conducted by PSC to fill up by promotion 30% of the said up graded posts, but the examination was not held. Then Ministry of Establishment by memo dated 11.5.1978 and 3.2.1981 promoted 57 and 74 officers, respectively, from Class-II to Class-I posts, Bangladesh Civil Service Recruitment Rules (BCSR) came into force on 1.1.1981. 3. It contained provisions for 10% quota for promotion from Class-II posts. After introduction of BCSR, the Ministry of Establishment promoted 74 officers in 1981 and 125 in 1982 and 58 in 1983, from Class-II to Class- I posts. Bangladesh Civil Service Recruitment Rules (BCSR) came into force on 1.1.1981. In contained provisions for 10 % quota for promotion from Class-II posts. After introduction of BCSR, the Ministry of Establishment promoted 74 officers in 1981 and 125 in 1982 and 58 in 1983 , from Class-II to Class-I posts. 100 officers were recruited in 1982 and 650 officers in 1983 through regular BCS examinations in Class-1 posts. 4. Accordingly, a total of 1007 officers, both promote and direct recruits were appointed in Class -I posts up to 1983. According to BCSR only 10% being 101 of the aforesaid 1007 could have been filled up by promotion up to 1.1.1985 declared as cut off date for such promotion. The Ministry of Establishment was competent to promote only 372 persons to Class-I posts as per its own memo dated 26.4.1977.
It had promoted 365 officers to Class-I posts between 2.11.1975 and 3.2.1981 in the administrative Cadre, whereas it could promote only 7 such officers to Class-I posts. According to the writ petitioner such promotion is illegal being violative of the rules. Writ petitioners made representation in September, 1998, March 1999 and August, 1999 for determination of their seniority above 190 promote. But the same was not at all considered. Thereafter, on 29.11.1999 Ministry of Establishment sought clarification form PSC on the question as to the seniority of the writ petitioners and the promotee officers of 1982 and 1983. PSC by impugned letter dated 4.11.2000 stated that BCSR was not applicable to the promote officer of 1982 and 1983 as recommended by PSC in 1975 and they will get seniority above the directly recruited officers of 1983 through BCS Examination 1982. So, they High Court Division in the aforesaid writ petition.
5. The Rule in the aforesaid writ petition was contested by the appellants as well as by the Government. Their main contention is that the writ petition was not maintainable as it related to enforcement of terms and conditions of service and right to promotion and their remedies lie before the Administrative Tribunal which has the exclusive jurisdiction over such matters. The case of the appellants of Civil Appeal No. 199 of 200 was that they appointed in 1970 and 1974 in the post of Circle Officer (Rev), Circle Officer (Dev) and additional Land Acquisition Officers in the EPCS Class-II Cadre. In 1974 Govt. abolished 465 posts of Circle Officer (Dev) in Grade VI and created 465 post of Circle Officers in Grade V in the rank of Deputy Magistrate and Deputy Collector to the filled up (i) 50% by selection from amongst erstwhile EPCS (Executive) Class-II officers and (ii) 50% by direct recruitment. PSC in 1975 conducted a viva-voice examination of eligible officers belonging to erstwhile EPCS Class-II Cadre. PSC on 22.09.1975 sent to the government its recommendations for appointment of 270 persons including the appellants to the post of Deputy Magistrate and Deputy Collector. But subsequently in June, 1976, Government revised its decision regarding filling up the 465 posts of Circle Officer, The Council Committee decided on 25.10.1978 to fill up 30 % of the 465 posts of Circle Officer (i.e. 139) posts from amongst the 270 officers selected by PSC in 1975 and three members of committee found 125 including the appellants out of 270 officers to be fit for promotion as per the opinion of the Ministry of Law dated 1.2.1982 as 1981 recruitment rules was not applicable in the case of above officers as recruitment process started before the enactment of the said rules. The Hon’ble President granted approval for promotion of those 125 officers on 17. 3. 1982. Accordingly by notification dated 22.3.1982, 125 officers were promoted to the posts of Assistant Commissioner, Advertisement for direct recruitment of the writ petitioners and others was published on10.06.1982 after the appointment of the appellants and they were appointed in 1983 . So the writ petitioners cannot claim to be senior to the appellants. PSC opined on 12.12.1984 and 26.12.1985 that the appellants would get seniority from the date of their promotion. Subsequently, Government prepared gradation list of BCS (Admin) Cadre Officers in 1988 wherein the appellants were listed as senior to the writ petitioners.
6. In accordance with the said gradation list the appellants were promoted to senior scale in 1987 prior to the writ petitioners, who got the senior scale in 1989. By notification dated 21.11.1995 appellants were granted selection grade and listed as senior to the writ petitioners, who did not raise any objection to the same. Up to March 1999 Government has granted promotion to all officers who are above the appellants in the gradation list to the rank of Deputy Secretary, On an appeal by the writ petitioner No. 10 Prime Ministers Secretariat on 18.10.1999 stressed the importance of deciding the question of seniority of the appellants on the basis of the opinion of PSC. Accordingly, Ministry of Establishment sought opinion of the PSC which by the impugned letter dated 4.1.2000 gave its opinion stating that the appellants will get seniority above the writ petitioners.
7. Mr. Rokonuddin Mahmood, the learned Counsel appearing for the appellants, in the appeal No. 199 of 2000, firstly contended that the subject matter of the writ petition being the terms and conditions of service and of the government Officers, it is within the exclusive jurisdiction of the Administrative Tribunal and as such the writ petition is not maintainable and in that view of the matter the High Court Division was wrong to make the rule absolute instead of discharging the same.
8. Learned Counsel next summits that the appellants having been recommended for promotion by the PSC in 1975 and the Council Committee decided the matter of been granted in the gradation list on 19.6.1988 which was never challenged by the writ petitioners, the writ petition was barred by principles of waiver, acquiescence estoppels and limitation as such the High Court Division was wrong in not discharging the rule despite of its own finding that it was impossible to declare that the promotion of the appellants were illegal due to lapse of time.
9. Mr. Rokonuddin Mahmud also submits that the appellant’s promotion having been recommended in 1975 and decided is 1978 by the Council long before BCSR came into force, and both the government and PSC having opined that BSCR was not applicable to their promotions, the High Court Division was wrong in declaring that the seniority of the appellants, writ petitioner and the added writ petitioners will be determined for further promotion in accordance with BCSR which contradicts the High Court Divisions own finding that it is impossible to challenge appellants promotions due to lapse of time.
10. Learned Counsel lastly submits that the seniority of the appellants having been decided in 1975 and 1978 before BCSR came into being the High Court Davison is wrong in holding that quota mentioned in item No. 6 of schedule II of BCSR was violate
while promoting the appellants.
11. Mr. Fida M. Kamal, the learned Attorney General appearing for the Government, in Appeal No. 200 of 2000 contended that the subject matter of the writ petition being terms and condition of the service and seniority of the government officer it was within the exclusive jurisdiction of Administrative Tribunal and as such the High Court division committed an error of law in not discharging the Rule holding that the writ petition was not maintainable. It is further contended that the seniority of the same officers having been determined by gradation list and the same was never challenged by the writ petitions ( respondent herein) and as such the High Court Division erred in law in making the Rule
absolute.
12. The argument of Mr. Rokonuddin Mahmud, is that the instant case is related to the seniority grade of the persons in the service officers of the Republic. The matter related to seniority is one of the conditions of the respondents service which come nder the jurisdiction of the Administrative Tribunal and not under the writ jurisdiction.
13. We find sufficient force in the above argument of Mr. Rokonuddin Mahmud. On the basis of the aforesaid facts and circumstance of the case it may be mentioned that the appellants before us were appointed during 1968 to 74 through the EPCS AND Special Superior Service examination conducted by the PSC and thereafter they were recommended by the PSC on 22.9.1975 for their appointment as Deputy Magistrates and Deputy Collectors. On the basis of the aforesaid recommendation, the Council Committee took decision on 25.10.1978 to effect promotion to the appellants i.e promotee officers and they were accordingly granted promotion on 22.3.1982. On 10.06.1982, three months after the promotion granted to the promotee officers application
was invited from the interested parties to consider appointment to the post of Assistant Commissioner. That the writ petitioner respondents herein were appointed on 27.10.1983 i.e. about two years after the promotion of the promote officers i.e. about two years after the promotion of the promote officers i.e. about two years after the promotion of the promote officers i.e. added writ respondent appellants, in addition to above, the promote officers were promoted to senior scale in 1987 and to selection grade in 1994 which were prior to those of the writ petitioner respondent herein. He then argued that the said writ petitioners did not challenge the aforesaid placement of the promote officers. Mr. Rokonuddin Mahmud, therefore, argued taht the writ petition has been filed with ulterior motives after lapse of 18 years promotion of the appellants, who were promoted in the year 1982 and filing of the writ petition is nothing but to create a barrier from granting further promotion to the appellants (Promote Officers) and other officers of their batch and as such the writ petiioners did not come before the High Court Division with clean hand and the writ petition was filed with malafide intention.
14. Mr. M. Amirul Islam, the learned Counsel, appearing for the writ petitioner respondents, on the other hand, contended that the High Court Division rightly hold the impugned memo as illegal instrument as the same was issued in violation of Article 27,29 and 3P of the Constitution is as much as it tends and crates inequality as to those who have been recruited directly through examination held in 1982 and the same is violative of General Principles of Seniority 1970; that the High Court Division rightly declared the said impugned memo as violative of due process and the rule of law.
15. We have heard the learned Counsels of both the sides and considered their submissions. It appears from the record that the appellants were appointed by the government prior to the writ petitioners. From the aforesaid facts and circumstances of the case the subject matter of the writ petition being the terms and conditions of service
and the matter of seniority of the persons inthe service of the Republic is within the exclusive jurisdiction of the Administrative Tribunal and as such the writ petition was not maintainable.
16. Having regard to the aforesaid facts and circumstances of case, we hold that the High Court Division having failed to notice that the subject matter of the writ petition with regard to counting of seniority between two grades of officers which could only be decided by the Administrative Tribunal upon evidence being adduced both oral and documentary in support of their respective cases, the said division erred in law in making the Rule absolute. Moreover, in view of the disputed question of facts involved in the subject matter the Rule ought to have been discharged. Furthermore, the subject matter of the writ petition was related to condition of service of the persons in the service of the Republic and the same was exclusively adjudicable by the Administrative Tribunal.
17. For all these reasons, we are of the view that the learned Judge of the High Court Division failed to apply their judicial mind and they have misdirected themselves in making the Rule absolute. In the result, we find substance in the appeals and accordingly, the appeals are allowed.
Source : III ADC (2006), 189.