Md. Nurul Huq Vs. Governor, Bangladesh Bank

Appellate Division Cases

(Civil)

PARTIES

Md. Nurul Huq-IV………………………………Appellant

-VS-

Governor, Bangladesh Bank, Head Office, Dhaka and others ………………..Respondents.

JUSTICE

Shahabuddin Ahmed CJ

M.H. Rahman J

A.T.M. Afzal J

Mustafa Kamal J

Latifur Rahman J

JUDGEMENT DATE: 5th June 1993.

Article 103 of the Constitution

Paragraph 185(g) of the Bangladesh Bank Establishment Manual.

Appellant’s seniority is to be determined on the basis of the circular No.l of 1960. The Tribunal also held that since a continuing Circular has been challenged on the ground of lack of juruisdiction the question of limitation does not arise in this case. The appellant’s case was allowed. On appeal by the respondent-Bangladesh Bank the Administrative Appellate Tribunal held that the Administrative Tribunals Act, 1980 was made applicable to Bangladesh Bank by an amending Ordinance in 1984 to be effective from 25-9-84. As per section 4(2) of the Administrative Tribunals Act,

1980 the appellant ought to have filed an appeal against the Staff Order No. 176/79 dated 3-7-79 within 6 months from 25-9-84. He having kept quiet for more than six months from 25-9-84 filed a representation or appeal for the first time on 27-5-86 and as such his representation or appeal was barred by limitation and it was not a representation/appeal in the eye of law. His case before the Administrative Tribunal was. therefore, not maintainable ……………………..(6)

Joined the General Side, worked for a number of years with the express knowledge and notice of the application of Circular dated 28-6-77 in respect of his seniority and having allowed the Bank to fix the seniority of his colleagues and others similarly situated in terms of the Circular dated 28-6-77, suddenly work up a number of years thereafter. Even then he did not file any appeal but wasted some time in oral manoeuvre. On 27-5-86 he submitted a representation, nor an appeal, and that also not to the Governor of Bangladesh Bank, his appellate authority, but to the General

Manager, Personnel Department, his superior officer……………….. (10)

The appellant having accepted a fresh entry into the service in terms of the Circular dated 28-6-77 and having worked in terms of the said Circular for a under of years without any protest or representation, the appellant will not now be allowed to turn back and contend that the Circular dated 28-6-77 is illegal and has no application to him. This be putting a premium to approbation and reprobation ……………….(10)

Civil Appeal No. 11 of 1992 (From the Judgment and Order dated 12-591 passed by the Administrative AppellateTribunal in Appeal No. 68 of 1990).

Abdul Basel Majumdei; Advocate-on-Record ………………….For the appellant

Abu Salek, Advocate, instructed by Md. Aftab Hossain, Advocate-on-Record …………….For respondent Nos.l and 2

Respondent No.3 ……………….Exparte

JUDGMENT

1. Mustafa Kamal J : This appeal by leave under Article 103 of the Constitution arises from the judgment and order dated 12-5-91 passed by the Administrative Appellate

Tribunal in Appeal No. 68 of 1990 allowing the appeal and reversing the judgment and

order dated 10-10-90 passed by the Administrative Tribunal in Tribunal Case No. 257 of 1988 allowing the case and declaring a Circular dated 28-6-77 to be illegal.

2. The appellant joined the erstwhile State Bank of Pakistan as Coin/Note Examiner

Grade-II on 17-11-75 to which post he was confirmed on 17-11-77. The Staff Circular

No.l of 1960, which was one of his service conditions, made him eligible for transfer to

General Side as Clerk on his passing the clerical recruitment test or degree examination.

His seniority to General Side as Clerk would be counted from the date of his appointment as Coin/Note Examiner, the Circular further Provided.

3.The service conditions regarding transfer to General Side had undergone a change on

28-6-77 by Circular No. PD (REG) 157/R28-77 whereby it was provided that Coin/Note Examiners transferred to the General Side will be treated as new entrants for the purpose of Seniority. In other words, their seniority will be counted not from the date of their appointment as Coin/Note Examiners, as in Circular No.l of 1960, but from the date of their transfer to General Side.

4. The appellant was transferred to General Side as Clerk Grade-II vide Staff Order No.

176/79 dated 3-7-79. The relevant portion of the said staff order reads as follows:”(iii) He will be treated as new entrant for the purpose of seniority in terms of Head Office’s Circular Letter No. PD (REG) 157 / R-28-77 dated the 28th June, 1877 read with Circular Letter No. PD (REG) 4/R-4-78 dated the 5th January, 1978.”

5. It is the appellant’s case that he joined the General Side on transfer on receipt of the

said Staff Order No. 176/79. He was apparently unmindful of the implications of the

said Staff Order and after having served in the General Side for a number of years on

the strength of the Staff Circular he found one Md. Mohiuddin-II, a Coin/Note Examiner, transferred to the General Side like him, but being given seniority from the date of his appointment to his initial post. The appellant on his own words stated an oral manoeuvre to get a similar treatment in respect of his seniority and it long last gave a written representation dated 27-5-86 to the General Manager, Personnel Department of Bangladesh Bank for counting his seniority of service from the date of his appointment as Coin/Note Examiner in the same manner as was done in the case of Md. Mohiuddin-II. He received no reply thereto, but came to know that his representation was rejected. He then filed an appeal before the Governor, Bangladesh Bank on 29-7-86 containting the same prayer and having received no reply thereto filed another appeal with some added arguments on 19-10-87. By a Memo, date 22-5-88 his representations dated 29-7-86 and 19-10-87 were dismissed. The appellant thereafter filed Tribunal Case No. 257 of 1998 on 2-11-88, i.e. within six months from the date of rejection of his appeal.

6. The case was contested by the Bangladesh Bank and upon the issues framed by the Tribunal it was held that the Circular dated 26-6-77 not having been issued under any resolution of the Board of Directors of the Bangladesh Bank it is not effective. The appellant’s seniority is to be determined on the basis of the circular No.l of 1960. The Tribunal also held that since a continuing Circular has been challenged on the ground of lack of jurisdiction the question of limitation does not arise in this case. The appellant’s case was allowed. On appeal by the respondent-Bangladesh Bank the Administrative Appellate Tribunal held that the Administrative Tribunals Act, 1980 was made applicable to Bangladesh Bank by an amending Ordinance in 1984 to be effective from 25-9-84. As per section 4(2) of the Administrative Tribunals Act, 1980 the appellant ought to have filed an appeal against the StaffOrder No. 176/79 dated 3-7-79 within 6 months from 25-9-84. He having kept quiet for more than six months from 25-9-84 filed a representation or appeal for the first time on 27-5-86 and as such his representation or appeal was barred

by limitation and it was not a representation/appeal in the eye of law. His case before the Administrative Tribunal was, therefore, not maintainable. The Administrative Appellate Tribunal also did not accept the opinion of the Administrative Tribunal that the question of limitation does not arise when a continuing Circular is being challenged on the ground of lack of jurisdiction. Without entering into the merit of the appeal the Administrative Appellate Tribunal allowed the appeal and set aside the judgment and order of the

Administrative Tribunal.

7. Leave was granted to the appellant to consider his submission that his appeal, though filed beyond the prescribed period of six months, was disposed of on merit by the higher administrative authority and he filed his case before the Administrative Tribunal within six months thereafter and therefore the Appellate Tribunal illegally held that his application was time-barred.

8. The Administrative Appellate Tribunal is indeed not correct in holding that the appellant had six month’s time to file a representation/appeal from the Staff Order dated 3-7-79 from 25-9-84, the date of coming into force of the 1984 amendment to the

Administrative Tribunals Act, 1980. The Administrative Tribunals Act. 1980 does not provide for any period of limitation for filing departmental appeals from departmental

orders. These are provided for in the relevant Service Regulations of various statutory authorities. Paragraph 185 (g) of the Bangladesh Bank Establishment Manual provides that when an appeal is submitted through the proper channel the Officer-in-charge may withhold and not forward a petition to higher authorities if it is not preferred within six months after the date on which the appellant was informed of the order appealed against and on reasonable ground is shown for the delay. Paragraph 186 thereof provides that in

every case in which a petition is withheld the appellant will be informed of the fact and the reasons for it by the officer-incharge.

9. Applying paragraph 185(g) above it is clear that the appellant should have submitted

his appeal within six months from Staff order dated 3-7-79. He did not do so. His efforts from 27-5-86 have been chronicled above and Mr. Abdul Baset Majumder, learned Advocate-on-Record for the appellant submits that in spite of the delay in filing the appeal the Officer-in-charge did not withhold the appellant’s appeal and did not inform the appellant of the fact of any such withholding. On the contrary the higher authority examined and considered the appellant’s appeal on merit and dismissed the same. In paragraph 14 of the respondent-Bank’s written statements before the Administrative Tribunal it has been clearly stated that inspite of receiving a time-barred appeal the appellant’s appeal was examined in the light of policy and principles followed earlier and was dismissed. Mr. Majumder, therefore, submits that the higher authority having disposed of a time-barred appeal on merit limitation will be deemed to have been waived by the higher authority and a plea of a time-barred appeal will be of no avail. He further submits that the appellant filed his case before the Administrative Tribunal within six months from the date of rejection of his appeal and on this score there is no dispute. Mr.

Majumder’s submission may be technically correct, but this case on seniority cannot be

dispensed with on consideration of mere technicality. It is clear from the records that

in the impugned Staff Order dated 3-7-79 the appellant was unequivocally and categorically informed of the Circular dated 28-6-77 and he was told in on uncertain terms that upon transfer to the General Side he will be treated as a new entrant for the purpose of seniority.

10. No question therefore arises of a lack of knowledge of the Circular dated 28-6-77.

He joined the General Side, worked for a number of years with the express knowledge

and notice of the application of Circular dated 28-6-77 in respect of his seniority and having allowed the Bank to fix the seniority of his colleagues and others similarly situated in terms of the Circular dated 28-6-77, suddenly work up a number of years thereafter. Even then he did not file any appeal but wasted some time in oral manoeuvre. On 27-5-86 he submitted a representation, nor an appeal, and that also not to the Governor of Bangladesh Bank, his appellate authority, but to the General Manager, Personnel Department, his superior officer. He filed an appeal for the first time on 29-7-86 followed by some added arguments on 19-10-87. In the meantime, as is excepted, the appeallant’s seniority did not remain an isolated question among uninvolved people, but a tangled question involving many others. We are not required in this appeal to pass a judgment as to the legality or otherwise of the circular 28-6-77, but only on the question of limitation. We are of the view that the appellant’s indolent behaviour from 3-7-79 to 29-7-86 has unalterably affected the position of many others similarly situated and it will be unconscionable to allow the appeallant to agitate his case now even though his time-

barred appeal was disposed of on merit. The appellant having accepted a fresh entry into

the service in terms of the Circular dated 28-6-77 and having worked in terms of the said Circular for a under of years without any protest or representation, the appellant will not now be allowed to turn back and contend that the Circular dated 28-6-77 is illegal and has no application to him. This be putting a premium to approbation and reprobation.

11. We thus find no reason to interfere with the impugned judgment and order of the

Administrative Appellate Tribunal although our reasons for not doing so are not the

same as those of the Administrative Appellate Tribunal.

12. The appeal is dismissed without any order as to cost.

Ed.

Source: IV ADC (2007), 321