Appellate Division Cases
(Civil)
PARTIES
Md. Muinuddin Zulfiquer …………………..Petitioner
-VS-
Government of the People’s Republic of Bangladesh
Represented by the Secretary, Ministry of Shipping,
Bangladesh Secretariat, Dhaka and others ……………. Respondents
JUSTICE
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 29th November 2006
Department of Shipping (Engineer and Ship
Surveyor of Inland Ships) Recruitment Rules,
1980
Articles 27 and 29(1) of the Constitutions of
Bangladesh
Writ-petitioner can neither claim seniority to Respondent No.5 nor can claim promotion to the post of Chief Engineer on the ground of seniority, that it is not within the scope of writ jurisdiction to decide the question whether the qualifications/ degrees of the writ-petitioner and the Respondent No. 5 are equal or writ-petitioner’s qualifications/degrees are higher to the Respondent No.5, that the authority in making appointment of the Respondent No.5 and the writ-petitioner did not violate the amended Rule of 1980 and thus there having no violation of the Recruitment Rules of 1980 the writ-petitioner had no occasion to question the appointment of the Respondent No.5 in Grade-I that amendment made in 1986 in the Recruitment Rules, 1980 was made at a time when there was no question of favouring Respondent No. 5 or depriving the writ-petitioner in any respect and as such the amendment of 1986 relating to Recruitment Rules, 1980 can not be consider malafide and the writ-petitioner had no case to challenge the schedule as stands after the amendent of 1986 of the Recruitment Rules of 1980 …………….(4)
We have held that this contention of the writ-petitioner has no merit since the amendment was made at a time when writ-petitioner was not a contender of the post in which he was appointed and he joined in 1995. It is the contention of the learned
Counsel that lapse of time is no bar in challenging legality of certain law or the Rules. The said contented would be of worth consideration in a case where the person complaining was affected by the amendment in the law. But in the instant case there in no such situation. It may be mentioned in the instant case amendment in the schedule of the Rules of 1980 was made in 1986 and the writ petitioner having had the notice thereof joined in his service in 1995. So the aforesaid contention in the background of the facts of the instant case is of no merit………………….(7)
Civil Review Petition No. 47 of 2005 (From the judgment and Order dated December 4,2004 passed by the Appellate Division in Civil Petition for Leave to Appeal No. 1910 of 2002)
Abdur Razzaq, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-record…………… For the Petitioner
Respondents………….. Not represented.
JUDGMENT
1. Md. Ruhul Amin J : This petition for review is directed against the judgment dated
December 4, 2004 in Civil Petition for Leave to Appeal No. 1910 of 2002 dismissing the
same. The petition for leave to appeal was filed against the judgment dated October 20,
2002 of a Division Bench of the High Court Division in Writ Petition No. 2597 of 2001
discharging the Rule.
2. The writ petitioner challenged the amendment of the schedule (published in the Gazette on January 23, 1986) of the Department of Shipping (Engineer and Ship Surveyor of Inland Ships) Recruitment Rules, 1980 and the Memo. No. E-l(l)/Part-6/3224 dated 27.3.2001 giving current charge of the post of chief Engineer and Ship Surveyor, Department of Shipping to the Respondent No.5.
3. Facts in the background of which the writ petition was filed was that on February 5,
1994 Public Service Commission advertised for appointment in two posts of Engineer and Ship Surveyor, that the post of Engineer and Ship Surveyor was divided into three grades, i.e. Grade-I, Grade-II and Grade-Ill, that in the advertisement qualification and the experience for being eligible to apply in the respective grade was mentioned, that in the light of the advertisement the writ petitioner, Respondent No.5 and others applied for being appointed as Engineer and Ship Surveyor and in due course the candidates whose applications found valid were called for interview, the Public Service Commission recommended Respondent No.5 for being appointed in Grade-I and in respect of writ-petitioner recommendation was made for appointment in Grade-II, that the authority made notification appointing the writ-petitioner and the Respondent No.5 in Grade-II and Grade-I respectively, that the writ-petitioner i.e. the petitioner in the civil petition for leave to appeal joined as Engineer and Ship Surveyor in Grade-II, that Chief Engineer and Ship Surveyor of Department of Shipping went on leave preparatory to retirement and thereupon Director General of Department of Shipping made recommendation for giving current charge of the Chief Engineer and Ship Surveyor to Respondent No.5. It was the contention of the petitioner herein that inspite of his being senior the authority illegally and unjustly made recommendation to give current charge of the post of Chief Engineer and Ship Surveyor to the Respondent No.5 in deprivation of the writ-petitioner, that writ-petitioner represented to the Government in the Ministry of Shipping for promoting him to the post of Chief Engineer and Ship Surveyor and that it is the contention of the writ-petitioner that the authority instead of considering his representation took step for the promotion of the Respondent No.5 to the post of Chief Engineer and Ship Surveyor. It was the contention of the writ-petitioner that when
Recruitment Rule, 1980 was framed there was no gradation and the qualification as regard the post of Engineer and Ship Surveyor of Inland ships was one of the three alternatives mentioned in the schedule but on January 23, 1986 the schedule of the Recruitment Rules, 1980 was amended and the post of Engineer and Ship Surveyor of Inland Ships was classified as Grade-I, Grade-II and Grade-Ill fixing qualification and experience for the respectiva grades, that in 1995 Government constituted a committee to scrutinize the recruitment rules for the purpose of making Unified Recruitment Rule of the Department of Shipping and the Committee prepared a Unified Recruitment Rule and forwarded the same to the authority and in the proposed Unified Rule the post of Engineer and Ship Surveyor was eliminated. It was the contention of the writ-petitioner that although recommendation for framing the unified Rule was made in 1995 but the same was not finalized till the filing of the writ petition i.e. till 2001.
4. The Rule obtained in the writ petition was opposed by the writ-Respondent No.5 by filing affidavit-in-opposition. The Rule was also contested by the writ-Respondent No.4 by filing the affidavit-in-opposition. After hearing the parties the High Court Division discharged the Rule on the findings that in the background the Rule on the findings that in the background of the materials on record writ-petitioner can neither claim seniority to
Respondent No.5 nor can claim promotion to the post of Chief Engineer on the ground of
seniority, that it is not within the scope of writ jurisdiction to decide the question whether the qualifications/ degrees of the writ-petitioner and the Respondent No. 5 are equal or writpetitioner’s qualifications/degrees are higher to the Respondent No.5, that the authority in making appointment of the Respondent No.5 and the writ-petitioner did not violate the amended Rule of 1980 and thus there having no violation of the Recruitment Rules of 1980 the writ-petitioner had no occasion to question the appointment of the Respondent No.5 in Grade-I that amendment made in 1986 in the Recruitment Rules, 1980 was made at a time when there was no question of favouring Respondent No. 5 or depriving the writ-petitioner in any respect and as such the amendment of 1986 relating to Recruitment Rules, 1980 can not be consider malafide and the writ-petitioner had no case to challenge the schedule as stands after the amendent of 1986 of the Recruitment Rules of 1980.
5. At the time of hearing of the civil petition for leave to appeal the learned Counsel representing the petitioner in the said petition contended that the authority constituted a
Committee for recommending unified Recruitment Rules and the Committee as far back as in 1997 made the recommendation to the effect that the Graduates in Naval
Architecture and the Marine Engineering would be eligible for being appointed in Grade-1 and thus the recommendation shows that the writ-petitioner and Respondent No.5 are equal but still then writ-petitioner was discriminated. This Court while not accepting the said contention of the learned Counsel for the petitioner observed that the commendation so made was not made final at the time of disposal of the writ petition and as such the contention of the writ-petitioner of his being equal to the Respondent No.5 was not well conceived one. It was submitted on behalf of the writ petition at the time of hearing of the petition for leave to appeal that there has been violation of the Article 27 and 29(1) of the Constitution. This Court did not accept the said contention i.e. of not treating equally or in other words there has been discrimination holding “when the advertisement was made qualification and experience for the respective grade was very much in the Rules of 1980 and was also very much in the advertisement and that the undenied position was that the writ-petitioner had not the qualification for being appoited in Grade-I and that he had only the qualification for being appointed in Grade-II and as such the appointment of the writ-petitioner in Grade-II was quite legal and in accordance with law.” This Court did not find substance in the contention of the petitioner that he was senior to Respondent No.5, since writ petitioner joined in Grade-II in January 1995 while the Respondent No.5 joined in Grade-I in December, 1994. It may be mentioned in the writ petition the petitioner challenged the leaglity of the Memo, giving current charge of the post of Chief Engineer and Ship Surveyor of the Department of Shipping to the Respondent No.5. The said matter being the subject matter for adjudication by the Administrative Tribunal, relief sought as against the said matter was not available to the writ-petitioner in writ jurisdiction of the High Court Division of the Supreme Court of Bangladesh. This Division while dismissing the petition for leave to appeal observed “In the background of the materials on record we are of the view that the High Court Division was quite correct in holding that amendment of the schedule of the Department of Shipping (Engineer and Ship Surveyor of Inland ships) Recruitment Rules, 1980 was not made to favour anybody or to deprive anybody”.
6. The learned Counsel submits in support of the prayer for review of the judgment dated
December 4, 2000 that lapse of time will no bar to challenge the legality of the law/ Rule.
The aforesaid contention was made in the background of the fact, in all probability as the amendment in the schedule of the Recruitment Rule, 1980 was made in 1986 and the writ petitioner who joined in Grade-II in January 1995 challenged the schedule of the Rules of 1980 in 2001. It is seen from the materials on record that the time of submitting application by the writ-petitioner for being appointed in the post of Engineer and Ship
Surveyor he had not the requisite qualification to apply in Grade-I but he had the qualification to apply in Grade-II and accordingly the Public Service Commission recommended appointment of writ-petitioner in Grade-II and appointment of the Respondent No.5 in Grade-I. After joining in Grade-II the writ-petitioner represented to the authority that he should be promoted to the post of chief Engineer and also claimed seniority over Respondent No.5. As it appears from the materials on record that there has been certain anomaly in the Recruitment Rules and in that context a Committee was formed to prepare unified Recruitment Rules. The Committee made its representation and the same is yet to reach finality. In the background of the recommendation the writ-petitioner claimed he is equally equal to Respondent No.5.
7. We have held in the judgment sought to be reviewed that this claim is not legally sustainable. It may be mentioned the writ-petitioner having had the notice of the Recruitment Rules of 1980 (as amended in 1986) made Department and as per his qualification he was appointed in Grade-II. The writ petition was filed contending that the amendment in the Recruitment Rules of 1980 in 1986 was not fair. We have held that this contention of the writ-petitioner has no merit since the amendment was made at a time when writ-petitioner was not a contender of the post in which he was appointed and he joined in 1995. It is the contention of the learned Counsel that lapse of time is no bar in challenging legality of certain law or the Rules. The said contented would be of worth consideration in a case where the person complaining was affected by the amendment in the law. But in the instant case there in no such situation. It may be mentioned in the instant case amendment in the schedule of the Rules of 1980 was made in 1986 and the writ petitioner having had the notice thereof joined in his service in 1995. So the aforesaid contention in the background of the facts of the instant case is of no merit. The learned Counsel for the petitioner could not point out any error apparent on the fact of the judgment for review.
8. In the background of the discussions made hereinabove we find no merit in the review petition.
9. Accordingly the petition is dismissed.
Ed.
Source: IV ADC (2007), 252