Mahbubur Rahman and others Vs. Taslimuddin Ahmed and others

Appellate Division Cases

(Civil)

PARTIES

Mahbubur Rahman and others …………..Appellants (in Civil Appeal No. 34/96)

-VS-

Taslimuddin Ahmed and others ……….Respondents (in Civil Appeal No. 34/96)

Bangladesh ……………………….Appellant (in Civil Appeal No. 35/96)

-VS-

Taslimuddin Ahmed and others ………Respondents (in Civil Appeal No. 35/96)

JUSTICE

Latifur Rahman J

Bimalendu Bikash Roy Choudhury J

A.M. Mahmudur Rahman J

Mahmudul Amin Choudhury J

JUDGEMENT DATE: 9th August 1999

B.C.S. (Taxation) Recruitment Rules, 1981

That directly appointed Assistant Commissioners of Taxes suffer adversely without impleading them as parties who are necessary parties in the case. As a matter of fact leave was granted in both the cases to consider the question of maintainability of the Administrative Tribunal case itself for non inclusion of necessary parties ……….(8)

Direct recruits of Assistant Commissioners of Taxes submits that, Section 3 of the Bangladesh Civil Service Seniority Rules, 1983 which speaks of principles of seniority interse of the members of the service cadre shall be counted from the date of appointment in the lowest post of that service. The direct appointees were recruited in 1985 and at that time respondent No.l was an Extra-Assistant Commissioner of Taxes and as such the question of his regular appointment in the lowest post of that service does not arise. Be that as it may, we hold that the case filed before the Administrative Tribunal is not maintainable in law as necessary parties who were adversely affected by the order were not brought before the court in accordance with law. The cause title of the application of respondent No.l clearly shows that 29 directly recruited Assistant Commissioners of Taxes were not at all made parties in the case and no notice was individually served on them………… (11)

Civil Appeal Nos. 34 and 35 of 1996 (From the Judgment and order dated 11.2.96 passed by the Administrative Appellant Tribunal in Appeal No. 105 of 1993).

S.R. Pal with A.R. Yousuf, Senior Advocate, instructed by Shamsul Hague Siddique,

Advocate-On-Record……………………For the appellants (in Civil Appeal No. 34/96)

Hasan Arif, Advocate, instructed by Md. Nawab AH, Advocate-On-Record………… For

Respondent No.l (in Civil Appeal No. 34/96)

Not represented ………………. Respondent Nos. 2-4 (in Civil Appeal No. 34/96)

Mahbubey Alam, Additional Attorney General, instructed by Sharifuddin Chaklader, Advocate-On-Record ………….For the appellant (in Civil Appeal No. 35/96)

Hasan Arif, Advocate, instructed by Md. Nawab AH, Advocate-On-Record……….. For

Respondent No.l (in Civil Appeal No. 35/96)

Not represented……………… Respondent Nos.2 (in Civil Appeal No. 35/96)

JUDGMENT

1. Latifur Rahman J: This appeal by the appellants by leave is against the judgment and order dated 11.2.96 of the Administrative Appellate Tribunal, Dhaka passed in Appeal No. 105 of 1993 dismissing the appeal thereby affirming the judgment and order of

Administrative Tribunal, Dhaka passed on 6.9.93 in Administrative Tribunal Case No. 51 of 1990.

2. Civil Appeal No. 34 of 1990 has been filed by 26 appellants who were not made parties either before the Administrative Tribunal or before the Administrative Appellate Tribunal and Civil Appeal No. 35 of 1996 has been filed by Bangladesh. Both the appeals are disposed of by a common judgment.

3. Respondent No.l filed the aforesaid Administrative Tribunal case impleading the

Government of Bangladesh and one Babul Rabbani as respondent No. 2 describing him

as” (Bangla)” Respondent No.l’s case is that he was appointed as Inspector of Taxes on 8.10.68 on the basis of Competitive Examination. He duly passed departmental examination in higher Cadre and was promoted to the rank of Extra-Assistant commissioner of Taxes on 5.10.81. According to the Cadre Rules and extra-Assistant Commissioner of Taxes becomes eligible for promotion to the rank of Assistant Commissioner of Taxes on completion of 3 years of service. Respondent No.3 completed 3 years of service on 5.10.84 as Extra-Assistant Commissioner of Taxes According to the recruitment Rules 1/3rd posts of Assistant Commissioners are to be filled up by promotion from the Extra-Assistant Commissioner and 2/3rd post are to be filled up by direct recruitment. Although respondent No.l became eligible for promotion on 5.10.84 with a vacant post available in the quota his case was not taken for promotion. On the contrary, Mr. Babul Rabbani was appointed directly as Assistant Commissioner of Taxes on 15.7.85 and on 21.1.86, 28 Assistant Commissioners of Taxes were directly appointed by violating the quote rules. Respondent No.l was also granted time scale and there was no hurdle for promotion of respondent No.l as Assistant Commissioner of Taxes on 15.7.85. He further stated that if he is given promotion from 15.7.85 in that case he would be senior to the directly recruited 29 Assistant Commissioners of taxes. Hence he filed the case for directing the Government to give retrospective effect to his promotion with effect from 15.7.85.

4. Government of Bangladesh contested the case asserting that B.C.S. (Taxation)

Recuitment Rules, 1981 provides for 2/3rd posts of Assistant Commissioner to be filled up by direct appointment while the rest 1/3rd post are to be filled up by promotion from Extra-Assistant Commissioners. On the basis of competitive examination, on 18.7.85 and

21.1.86, 29 posts of Assistant Commissioners were filled up by direct appointment.

Respondent No.l was promoted on 20.12.87 to the rank of Assistant Commissioner on the recommendation of the Public Service Commission. There is no scope for giving seniority to respondent No.l above the directly recruited 29 Assistant Commissioners of Taxes. According to the Government, respondent No.l is entitled to his seniority from the date on which he was appointed as Assistant Commissioner of Taxes. Further, the post of

Extra-Assistant Commissioner of Taxes is not a Class I Post. Hence respondent No. 1 ‘s case is liable to be dismissed.

5. Administrative Tribunal allowed the case and granted seniority to respondent No.l above Babul Rabbani and the present 26 petitioners appointed directly on 15.7.85 and

21.1.86 giving retrospective effect to the promotion of respondent No.l as Assistant commissioner of taxes and allowed all attending benefits from that date. The Government was further directed to correct the seniority list accordingly, showing respondent No.l as promoted to Assistant Commissioner of Taxes on 15.7.85.

6. The said order of the Administrative Tribunal was affirmed by the Administrative Appellate Tribunal after dismissing the appeal of Government. Before the Administrative

Appellate Tribunal the Government raised the question of non-joinder of necessary parties, namely, 29 directly recruited Assistant Commissioners of Taxes who have been directly affected by the impugned judgment and order.

7. On the submission of the learned Additional Attorney General leave was granted to consider in Civil Appeal No. 34 of 1996, the question of maintainability of the case when respondent No.l did not implead 29 persons who were given seniority to him and the said 29 persons are directly affected by the order of the Tribunal, as such the said 29 persons are necessary parties and in their absence the case is not maintainable and the Tribunals below acted contrary to law in not dismissing the case on the ground of maintainability alone.

8. In Civil Appeal No. 35 of 1996, leave was granted on the submission of Mr. Pal that directly appointed Assistant Commissioners of Taxes suffer adversely without impleading them as parties who are necessary parties in the case. As a matter of fact leave was granted in both the cases to consider the question of maintainability of the Administrative Tribunal case itself for non inclusion of necessary parties.

9. Respondent No.l was appointed as Inspector of Taxes on 8.10.68 and thereafter he was promoted to the rank of Extra-Assistant Commissioner of Taxes on 5.10.81. His case is that in completion of three years of service he was eligible to be promoted to the rank of Assistant Commissioner of Taxes but he was not promoted. That is the cause of action of respondent No.l file the application before the Administrative Tribunal. His further case is that according to the recruitment rules 1/3rd post of Assistant Commissioner of taxes are to be filled up by promotion from Extra-Assistant Commissioner of Taxes and 2/3rd posts are to be filled up from direct recruitment. Admittedly, he is a promotee so his case is to be considered on the basis of proportion by 1/3 posts of Extra-Assistant Commissioner of Taxes. In the meanwhile after competitive examination on 18.7.85 and

21.1.86, 29 Officers were directly recruited as Assistant Commissioners of Taxes which is Class I post, whereas respondent No.l was an Extra-Assistant commissioner of Taxes on 5.10.81 which was a Class II post.

10. The Administrative Tribunal case was filed by respondent No.l without impleading the 29 directly recruited Assistant Commissioners of Taxes who were recruited by competitive examinations. Against those, respondent No.l has positive grievance that direct recruits were given seniority to respondent No.l while respondent No.l is entitled to his seniority above them. In that view of the matter, it is undisputed that 29 Assistant

Commissioners of Taxes who are directly recruited are going to be adversely affected by the order of the Tribunals below and in that view they were necessary parties in the case.

The Tribunals below in fact gave relief to respondent No.l without hearing 29 directly recruited officers and without giving them any opportunity to place their case. Thus, the

Administrative Tribunal case is not maintainable and the Tribunal below acted contrary to law in not dismissing the case on the ground of maintainability alone.

11. Mr. S.R. Pal, learned Advocate appearing on behalf of the direct recruits of Assistant

Commissioners of Taxes submits that Section 3 of the Bangladesh Civil Service Seniority

Rules, 1983 which speaks of principles of seniority interse of the members of the service cadre shall be counted from the date of appointment in the lowest post of that service.

The direct appointees were recruited in 1985 and at that time respondent No.l was an

Extra-Assistant Commissioner of Taxes and as such the question of his regular appointment in the lowest post of that service does not arise. Be that as it may, we hold that the case filed before the Administrative Tribunal is not maintainable in law as necessary parties who were adversely affected by the order were not brought before the court in accordance with law. The cause title of the application of respondent No.l clearly shows that 29 directly recruited Assistant Commissioners of Taxes were not at all made parties in the case and no notice was individually served on them.

12. For the reasons stated above, both the appeals are allowed without any order as to costs.

Ed.

Source: IV ADC (2007), 275.

Disclaimer:

The information contains in this web-site is prepared for educational purpose. This site may be used by the students, faculties, independent learners and the learned advocates of all over the world. Researchers all over the world have the access to upload their writes up in this site. In consideration of the people’s participation in the Web Page, the individual, group, organization, business, spectator, or other, does hereby release and forever discharge the Lawyers & Jurists, and its officers, board, and employees, jointly and severally from any and all actions, causes of actions, claims and demands for, upon or by reason of any damage, loss or injury, which hereafter may be sustained by participating their work in the Web Page. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist.  The provisions of any state’s law providing substance that releases shall not extend to claims, demands, injuries, or damages which are known or unsuspected to exist at this time, to the person executing such release, are hereby expressly waived. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Reference herein to any specific commercial product process or service by trade name, trade mark, manufacturer or otherwise, does not necessarily constitute or imply its endorsement, recommendation or favouring by the Lawyers & Jurists. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. Above all, if there is any complaint drop by any independent user to the admin for any contents of this site, the Lawyers & Jurists would remove this immediately from its site.