Appellate Division Cases
(Civil)
PARTIES
Md. Saiful Islam and another……………………… Appellants.
-vs-
Sheikh Hasanul Huq and others ……………………Respondents
JUSTICE
Md. Ruhul Amin. J
M. M. Ruhul Amin. J
Md. Tafazzul Islam. J
JUDGEMENT DATE: 24th May 2004
Service Rule the Employemet Provision of Rule 143 (4)
Employees who went abroad on deputation, remained substantially attached to PDB and their liens on the post of Assistant Engineers as held by them in PDB remained fully alive when they were on deputation . Lien in Service Law, connotes the right of a public servant to hold the post substantially to which he is appointed . The word “lien” originally means “binding” and came from the Latin word “ligeman” and its lexical meaning is right to retain. So the 24 employees of PDB who wenv abroad on deputation had the right to hold substantially either immediately or on termination or period of absence, a permanent post to which they had been appointed substantially and they further continued to hold liens in PDB with right to promotions ……………………..(10)
The High Court Division made the Rule absolute declaring the impugned order dated 24.11.1993. Annexure-E. void and without lawful authority because of violation of the principle of natural Justice as well as equality clause of the Constitution because in view of the order dated 8.11.1993 the respondent No.l acquired a vested right which could not be taken away without giving him an opportunity of being heard and that the respondent No.l was similarly situated with the 24 other employees who were re employed and the respondent No.l cannot be differently treated from 24 other employees in the matter of seniority…..……………………..(4)
Civil Appeal No. 38 of 1998 (From the judgment and order dated 3rd September, 1997 passed by the High Court Division in Writ Petition No. 914 of 1994).
Mahmudul Islam, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on-
Record……………….. For the Appellants
Ozair Farooq, Senior Advocate, instructed by Md. Nawab AH, Advocate-on-
Record……………….. For Respondent No. 1
Ex-parte…………….. Respondent Nos. 2-9
JUDGMENT
1. Md. Tafazzul Islam J :- This appeal by leave arises out of the judgment and order dated 3.9.1997 passed by of the High Court Division in Writ Petition No. 914 of 1994 making the Rule absolute.
2. The writ petitioner respondent No.l filed the above writ petition impugning the Memo
dated 24.11.92. where by his seniority was taken away, stating inter alia that on 9.12.1978 he joined Bangladesh Power Development Board as an Assistant Engineer; he had to tender resignation from service under BPDB with effect from 20.7.1979 for taking job abroad as at that time there was no provision for allowing an employee to go abroad on deputation; on completion of the term of service abroad he returned to Bangladesh and applied for reinstatement in the service of BPDB with a prayer for maintaining his seniority from the date of first appointment; in its 356th meeting date 4.10.1987 (Annexure B) the Board of BPDB decided that he would be re-employed on the same terms and conditions as in the case of 26 other employees re-employed by office order
dated 30.9.1987 and on the basis of the above decision of the Board, by order dated 9.11.87 (Annexure B-l) he was re-employed on condition that his service would be guided by Service Rules of BPDB by a subsequent order dated 25.10.1992 (Annexure C), 24 employees out of the aforesaid 26, who were on identical footing with him were accorded re instatement with continuity of seniority in service: on the establishment
of Dhaka Electric Supply Authority, DESA, his service was transferred to DESA;
after publication of the order dated 25.10.1992 (Annexure-C) he on 29.10.1992 submitted representation to DESA for the maintenance of his seniority in service as was done in the case of other officers; DESA, in its 44th Board meeting held on 14.10.1993 , in consideration of a precedent, adopted a resolution and by letter dated 8.11.1993 (Annexure-D) allowed him seniority as prayed for but on 13.2.1994 he received a copy of the order dated 24.11.1993 (Annexure-E) whereby his seniority as already allowed by order dated 8.11.1993 was illegally taken away without giving him an opportunity to show cause.
3. The respondent Nos. 2-3 contested the Rule and filed affidavit-in-opposition stating
inter alia that while re-employing the respondent No.l it was specifically mentioned that he would not be allowed to claim seniority on the basis of his previous appointment the case of the 24 employees as cited was different in that they went abroad on deputation and when they having failed to return to Bangladesh on the expiry of leave their services were terminated but subsequently they were re-employed treating the period of unauthorized absence as unusual leave keeping all service conditions unchanged the respondent No.l served only for 7 months and 4 days before tendering resignation
and his service was not confirmed by that time and as such his case is not similar to those
of the 24 employees the authority as per the decision of Board by order dated 24.11.1993
cancelled the order dated 8.11.1993 by which the respondent No.l was given seniority and this order was communicated to him by sending it to his head office address. The respondents No. 4-9 who got themselves added as respondents No. 4-8 in the writ petition also opposed the Rule and filed an affidavit-in-opposition taking similar stand taken by the respondent Nos. 2-3 and contending that the case of 24 other employees is different from the case of the respondent No. 1 as the other 24 person did not resign from their office.
4. The High Court Division made the Rule absolute declaring the impugned order dated
24.11.1993. Annexure-E. void and without lawful authority because of violation of the principle of natural Justice as well as equality clause of the Constitution because in view of the order dated 8.11.1993 the respondent No.l acquired a vested right which could not be taken away without giving him an opportunity of being heard and that the respondent No. 1 was similarly situated with the 24 other employees who were re employed and the respondent No. 1 cannot be differently treated from 24 other employees in the matter of seniority. Leave was granted to appeal on the following terms: ” learned Advocate appearing for petitioners submits, first, that the writ petitioner and the cited 24 other
employees of DESA are not similarly situated in that the former is a case of reemployment and latter are cause of reinstatement and as such the learned Judges of the High Court Division committed an error of law in holding that the impugned order dated 24.11.93 is arbitrary and discriminatory. He next submits that the High Court Division failed to notice that by no principle of service jurisprudence, a period out of service resulting from voluntary resignation can be treated as a period on leave and the High Court Division was wrong in holding that the writ petitioner was similarly situated
with the cited 24 employees who were terminated from service for overstay abroad.
He further submits that the order dated 8.11.93 on which the writ petitioner relies having been passed without giving opportunity to the employees whose seniority was going to be affected was itself violative of the principles of natural justice and was thus void and
cannot be the basis for claming a vested right and compliance with the principles of natural justice. Lastly, he submits that the employees (“who are placed in the gradation list ahead of the employees appointed on the date of re employment of the writ
petitioner and would be affected by making the Rule absolute in the writ petition) having not been impleaded, the writ petition was bad for defect of parties and the High Court Division ought to have dismissed the writ petition for not impleading necessary par
ties.”
5. Mr. Mahmudul Islam, the learned counsel appearing for the appellants submits that the
appellants, who were not impleaded in the writ petition were appointed as Assistant Engineers of BPDB by Memo dated 19.1.1980 arid on the formation of DESA their services being transferred from BPDB to DESA; they acquired right to Court their seniority from the date of their appointments and no one having been appointed after the date of their appointments can be senior to them the respondent No. 1 having resigned from his service he, after taking fresh employment in BPDB after eight years, cannot be made senior to the appellants the respondent No. 1 and the 24 other employees of
DESA are not similarly situated because the case of the former is of reemployment whereas the cases of the latter are reinstatements and the period out of service resulting from voluntary resignation can not be treated as a period on leave the order dated 8.11.1993 having been passed without giving opportunity to the employees whose seniority was going to be affected was itself Vilative of the principles of natural justice and was thus void and cannot be the basis for claiming a vested light and also for complaining violation of the principles of natural justice; because of the decision given by the High Court Division in the present writ petition. DESA has by orders dated 13.10.1997 treated the respondent No.l to be Assistant Engineer with effect from 9.12.1978 i.e. from the date of his original appointment and promoted him to the post Executive Engineer without considering the cases of the appellants and other employees who are in law and in fact senior to the respondent No.l; the employees who are placed in the gradation list ahead of the re employment of the writ petitioner and who were affected in view of making the Rule absolute having not been impleaded, the writ petition, was bad for defect of parties.
6. Mr. Ozair Farooq, the learned counsel appearing for the respondent No.l, submits that
the vested right created in favour of the respondent No.l on giving him seniority by letter
dated 8.11.93 can not be taken away by the respondent Nos. 2and 3 without giving him any opportunity to show cause and without hearing him 24 other employees of DESA vvho were dismissed earlier for unauthorized absence having been re-employed subsequently without any departmental proceedings or in terms of order passed by any Court of law but merely at the discretion of the respondents Nos. 2 and 3, stand on the same footing as of the respondent No.l as the process of re-employment in both the cases are similar in nature as the respondent Nos. 2 and 3 upon considering the circumstances
and following the earlier precedent gave seniority to the respondent No.l; the persons
who were allegedly affected by the order dated 8.11.93 added themselves as respondents in the writ petition and contested the Rule by filing affidavit in opposition raising similar and same plea like the appellants but having failed they and for DESA did not prefer any appeal before this Division and since the judgment and order dated 3.9.97 passed by the High Court Division in the writ petition was acted upon by DESA in its 115th Board meeting by giving promotion to the respondent No.l and subsequently to other seven officers senior to the appellants and then also promoted the appellants themselves the
present appeal has become in fructuous if at this stage the judgment and order of the High Court Division is interfered with there will arise serious complications and anomalies in the service of the respondent No. 1 and other promotes.
7. As it appears the respondent No. 1 is an Engineer of 1978 Batch and he joined on
08.12.1978 as Assistant Engineer under BPDB and the appellants are Engineers of 1980 Batch and they joined on 19.01.1980 as Assistant Engineers under BPDB and Mr. Atahar Uddin Talukder, is an Engineer of 1977 Batch and he joined on 11.02.1977 as Assistant Engineer under BPDB. It further appears that the respondent No.l resigned on 18.07.1979 from the post of Assistant Engineer under BPDB while Mr. Atahar Uddin Talukder resigned from the post of Sub-divisional engineer under BPDB. Contents of annexure A shows that both respondent No.l and or Atahar Uddin Talukdar were re-employed on 09.11.1987 in the post of Assistant Engineer and from the date of reemployment the respondent No.l Mr.Atahar Uddin Talukder, the appellants and 24 other employees of DESA all were serving under BPDB. Upon creation of DESA, under Act No. 36 of 1990 the services of seven Assistant Engineers including the respondent No. 1 who is of 1978 Batch and the services of the appellants who are of 1980 Batch and the services of some
other engineers stood transferred to DESA and upon considering a precedent in PDB, DESA gave seniority to the respondent No.l which was to be calculated immediately after six Assistant Engineer of 1978 Batch who were also absorbed under DESA along with respondent No.l. In the appointment letter dated 08.12.1978, the serial number of the respondent No.l was at 104 while in total 106 Assistant Engineers were appointed by the said appointment letter and it is also an admitted fact that Sk. Abdur Rahman, Whose serial number is 47 in the said appointment letter, was also transferred to DESA and the Engineers whose serial numbers are between 48 to 103 did not join DESA and hence the respondent No.l having SI. No 104, was shown immediately after Sk. Abdur Rahman who was at SI. No. 47 among the Assistant Engineers of 1978 Batch absorbed in DESA. It also appears from Annexure A to the writ petition that Mr. Md. Atahar Uddin
Talukder, who resigned from the post of Sub-Divisional Engineer under PDB was re
employed in the post of Sub-divisional Engineer along with the respondent No.l by
PDB on 09.11 1987 and he continued his service under PDB and was promoted on 8.5.2001 to the post of Executive Engineer under PDB and he was given seniority in the post of Executive Engineer from 25.10.1986 the date of his resignation and not from 10.2.1977 the date of his appointment.
8. It may also be noted here that Mr. Md Ataharuddin Talukder is still an employee of
PDB while the respondent No.l and other 24 employees, as cited, are employees of DESA a separate statutory authority. After DESA was constituted in the year 1990the Inter se seniority of the Assistant Engineers of DESA governed the seniority of Assistant Engineers of DESA while the Inter se seniority of engineers of BPDB governed the seniority of Assistant Engineering of BPDB and so the precedent regarding the position of seniority of Mr. Md. Atharuddin at BPDB had no legal binding for fixing Inter se seniority of Assistant Engineers of DESA and further while fixing such seniority the appellants were not heard.
9. Further it is an admitted fact that the respondent No. 1 resigned from his service and
he was re employed while the other 24 employees of DESA went abroad on deputation and thought they were dismissed for unauthorized absence was subsequently reinstated.
10. After acceptance of the resignation tendered by the respondent No.l, he was no longer
in the employment of PDB and there was severance of relationship of employee and employer between him and PDB. But 24 other employees who went abroad on deputation, remained substantially attached to PDB and their liens on the post of Assistant Engineers as held by them in PDB remained fully alive when they were on
deputation . Lien in Service Law, connotes the right of a public servant to hold the post substantially to which he is appointed . The word “lien” originally means “binding” and came from the Latin word “ligeman” and its lexical meaning is right to retain. So the 24 employees of PDB who went abroad on deputation had the right to hold substantially either immediately or on termination or period of absence, a permanent post to which they had been appointed substantially and they further continued to hold liens in PDB with right to promotions, if any in DESA. Similarly because of the continuance of the link with PDB the control over the 24 employees remained with DESA and accordingly
when the 24 employees failed to report to PDB after expiry of the period of deputation,
PDB because of such control, was in a position to dismiss those 24 employees for unauthorized leave. However thereafter PDB reinstated those 24 employees treating their period of absence as leave and accordingly after reinstatement, the 24 employees of PDB were entitled to get all the benefits of seniority and also the right to be considered for promotion. But because of resignation and re-employment, the respondent No.l
did not stand on the same footing like that of 24 others employees of PDB and thereafter DESA.
11. It further appears that in view of the above position of law before issuing the letter
dated 13.10.97, DESA should have issued notice upon the appellants because the respondent No.l, who was re-appointed on 9.11.87 as Assistant Engineer was junior to the appellants and further the above order dated 13.10.97 being illegal no vested right accrued in favour of the respondent No.1 by the above order. So the judgment and order dated 3.9.97 making the Rule absolute cannot be sustained. Accordingly the appeal is allowed without any order as to cost and the judgment and order passed by the High Court Division making The Rule absolute is set aside.
Ed
Source: I ADC (2004), 290