Raziul Hasan Vs. Badiuzzaman Khan and others

Raziul Hasan. (Appellants)

Vs

Badiuzzaman Khan and others (Respondents)

Supreme Court

Appellate Division

(Civil)

JUSTICES

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md. Abdur Rouf J

Judgment : February 1, 1996

Constitution of Bangladesh, 1972

Article 104

  No remedy is available to the appellant through a gross injustice has been done to him for fault or laches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view it is a most appropriate case for the Court to exercise our jurisdiction under Article 104.

Article 32 (2) of the Constitution of India invests the Supreme Court of India not only with the writ jurisdiction but also with the power to issue directions, orders or writs in any matter. Thus the Indian Supreme Court possesses original jurisdiction. But in the scheme of our Constitution we can only do complete justice under Article 104 of the Constitution in a matter or cause which is pending in appeal under Article 103 of the Constitution. A substantial injustice having been done to the appellant we feel that the jurisdiction under Article 104 of the Constitution should be exercised in the facts and circumstances of this case……………………………………………..(13)

Lawyers :

KZ Alam, Advocate, instructed by Shamsul Haque Siddique, Advocate-on-Record —For the Appellant.

Dr. Rafiqur Rahman, Senior Advocate, instructed by Md. Aftab Hossain, Advocate-on- Record— For the Respondent No. 1.

Kazi Shahabuddin Ahmed, Advocate-on-Record— For the Respondent No. 7.

Not represented—Respondent Nos. 2-6.

Civil Appeal No. 88 of 1994

(From the Judgment and order dated 8-11-93 passed by the Appellate Administrative Tribunal in Appeal No. 75 of 1993)

JUDGEMENT

       Latifur Rahman J: This appeal by leave by added respondent No. 6-appellant is against the judgment and order dated 8-11-93 passed by the Appellate Administrative Tribunal dismissing Administrative Appeal No. 75 of 1993 thereby affirming the judgment and order dated 13-4-93 passed by the Member, Administrative Tribunal, Dhaka, in Administrative Tribunal Case No. 264 of 1990.

2. Respondent No. 1 filed Administrative Appellants Tribunal Case No. 264 of 1990 praying for a declaration that he has been the Director/Deputy Secretary with effect from 18-4-81 or in the alternative from 29-6-81 and also for a declaration that the placement of the appellant and respondent No. 7 above him in the seniority list are illegal and void.

3. The case of respondent No. 1, inter alia, is that he joined the then Pakistan Secretarial Service on 24-12-68 as probationer Section Officer being appointed as such on the basis of the result of the CSS Examination of 1967; that in 1973 he opted for Bangladesh and was repatriated to Bangladesh; that thereafter he was appointed Section Officer in the Ministry of Commerce; that he was transferred to the Ministry of Foreign Affairs as Section Officer on 9-5-74 and was posted at the Embassy of Bangladesh in Senegal as Second Secretary on 15-2-1979; that he was then posted in the Ministry of Foreign Affairs of Bangladesh on 11-9-1980 as Senior Scale Section Officer that thereafter he was encadred in the Bangladesh Civil Service (Foreign Affairs) as per Gazette Notification published on 18.4.1981 on his absorption as Deputy Secretary; that he was appointed Deputy Secretary of the Ministry of Education as Member of the Senior Services Pool. After necessary test as per notification dated 29-6-1981 with the status of a Deputy Secretary he was appointed Director of the Directorate of South Asia-2 and that he assumed the charge of the office by Memo, dated 13-7-1981 that he was asked to intimate his option as to whether he was willing to relinquish his lien to the cadre of BCS (Foreign Affairs); that he requested the Secretary of the Establishment Division for his confirmation in the BCS (Foreign Affairs) Cadre as Deputy Secretary; that meanwhile the Ministry of Foreign Affairs by order dated 10-6-82 cancelled the notification relating to his assumption of charge as Director; that the Ministry of Establishment Division cancelled his appointment as Deputy Secretary in the Senior Services Pool by order dated 17-2-83; that he submitted representation for regularization of his appointment but he was informed by order dated 17-8-83 in the negative; that in 1983 a draft seniority list was prepared. At that time he was posted at Islamabad as a Counselor below the rank of Deputy Secretary. Respondent No. 1 submitted representation which was rejected by order dated 12-7-86. On the other hand, the present appellant Raziul Hasan and Mr. SA Jalal (Respondent No. 7) were placed in the gradation list of 1989 above respondent No. 1 who was higher in the gradation list of 1984. In this way the seniority of respondent No. 1 was affected thereby degrading his rank and status. After his return to Bangladesh he submitted representation for restoration of his position and seniority which was rejected on 30-6-90. Thereafter he instituted this case on 29-12-90.

4. The Secretary, Ministry of Foreign Affairs, contested the application before the Administrative Tribunal by filing a written statement denying therein all the material allegations made in the application and contending, inter alia, that respondent No. 1 was a Member of the CSS Cadre and was under the administrative control of the Establishment Ministry; that he was appointed on 9-5-1974 on deputation as Section Officer in the Ministry of Foreign Affairs and was posted as Second Secretary of the Bangladesh Embassy at Senegal; that he along with others applied for absorption in tile BCS (Foreign Affairs) and was absorbed in the ECS (Foreign Affairs) Cadre by notification dated 18-4-81 along with 6 others; that he was absorbed as a Section Officer and not as Deputy Secretary; that he was given option as to whether he would remain in BCS (Secretariat) Cadre and join as Deputy Secretary or be member of BCS (Foreign Affairs) Cadre and in spite of repeated remainders given by the Establishment Division of the Government, he did not exercise his option and letters were issued again and again and on 13th July 1981 and 19th April, 1982 but he never gave any clear reply. Instead he made series of representations and eventually by a letter dated 17th July 1982, he opted not to stay in the Senior Services Pool and exercised his preference to stay in BCS (Foreign Affairs) Cadre; that he never joined as a Deputy Secretary in the Ministry to which he was posted and wanted to have the best of both the cadres including being in the Senior Services Pool without following the rules and procedures; that in such a situation, the order of the Ministry where he was posted as a Deputy Secretary on promotion was cancelled, so also his placement as a Director in the Ministry of Foreign Affairs; that in 1983 the seniority list of the Members of the BCS (Foreign Affairs) was prepared according to the Composition and Cadre Rules, 1980; that he assumed the charge of Director/Deputy Secretary on 13-7-8 1 on the basis of promotion which was subsequently cancelled; that the Gradation list published in 1984 was latter amended from time to time; that Mr. SA Jalal (Respondent No. 7), Mr. Raziul Hasan (Appellant) and Mr. Rafique Ahmed Khan were appointed in 1971 by the Mujib Nagar Government and, as such, they were given seniority from the date of their appointment at Mujib Nagar with the approval of the Council Committee; that the case of respondent No. 1 was considered several times on his representations and he having not fulfilled the requirements for placing him above the appellant, his case was refused; that his last representation was not even forwarded to the Establishment Ministry as it had no good reasons for reconsideration of his case and respondent No. 1 was informed accordingly; that it is absolutely wrong to say that his case was rejected on 30-6-90; that the claim of respondent No. 1 was time-barred and the Administrative Tribunal could neither have admitted his application nor could decision be given in violation of the specific provisions of the statute.

5. Administrative Tribunal case was filed on 29-12-90. In this case, appellant Raziul Hasan and respondent No. 7 SA Jalal were not initially made parties, Subsequently, on 5-8-92 respondent No. 1 filed an application for addition of parties for impleading the appellant and respondent No. 7 as parties in the case as they will be adversely affected by the change of seniority list of 1989. Before the Administrative Tribunal only the Secretary, Ministry of Foreign Affairs contested the case. It further appears that at the time of filing of the case and when the amendment petition was allowed the appellant was serving abroad in Bangladesh Mission. Notices were duly served upon the present appellant through Bangladesh Foreign Office but he was not allowed to come to Dhaka and to defend his case properly and effectively by engaging his Advocate of choice and placing all relevant laws and papers which were necessary and essential for proper disposal of the case. Further, the Ministry of Foreign Affairs always held out that necessary and proper steps were being taken for conducting the case before the Tribunal, Ultimately, the case was allowed by the Administrative Tribunal on 13-4-93 by giving the following reliefs to present respondent No.1:

“(1) It is hereby declared that the petitioner has been Director/Deputy Secretary on his being duly promoted to the post with effect from 13-7-8 1; (2) The order of cancellation of the charge of Director held by the petitioner at Annexure-13 is hereby declared to be illegal, void and of no legal effect; (3) It is further declared that the placement of the opposite party Nos. 6-7 in the Gradation List of 1989 at serial Nos. 80 and 81 above the petitioner affecting his seniority is illegal, void and is one not based on any legal foundation.”

6. After the disposal of the Administrative Tribunal case the appellant was informed by the Ministry of Foreign Affair as to the result of the case. The appellant requested the Ministry of Foreign Affairs by phone/telex to file case on his behalf before the Administrative Appellate Tribunal. The Ministry of Foreign Affairs by telex message dated 28th July, 1993 mentioned that it was taking all steps to file the appeal on behalf of the appellant. In the meanwhile, however, the appellant talked to his Advocate at Dhaka over phone and learnt from the learned Advocate that the appeal has already become time-barred. After obtaining the certified copy the appeal was filed before the Administrative Appellate Tribunal. The appeal being barred by 80 days the same was dismissed as time-barred. Thereafter this leave petition was filed by the appellant.

7. Leave was granted primarily to consider the case of the appellants for doing complete justice under Article 104 of the Constitution. When admittedly the appellant was working in Bangladesh Mission abroad and due to his absence from Bangladesh which was beyond his control, the parent Ministry failed to produce the relevant laws, namely, the Mujibnagar Employees (Condition of Service) Rules 1980, the Government Servants (Seniority of Freedom Fighters) Rules, 1979 and the relevant documents giving effect to these rules so far as it relates to the appellant. At the time of granting leave for doing complete justice in the matter we not only noticed the delay of the appellant in filing the Administrative Appellate Tribunal appeal but also found that the question of delay in filing the case itself by respondent No. 1 remained undecided though specifically the bar of section 4(2) of the Administrative Tribunal Act was raised.

8. Mr. KZ Alam, learned Advocate appearing for the appellant, submitted before us that the appellant in fact got the benefit of the Mujibnagar Employees (Conditions of Service) Rules. 1980 and the Freedom Fighters (Seniority) Rules, 1979 as is evident from the resolution of the Council Committee for Senior Service, for promotion and service structure dated 15-2-89 and the Gazette Notification Memo No. SS (A)-10/128/84 dated 7-3-89, but unfortunately, neither the rules nor the papers were produced before the Tribunal through inadvertence by the Ministry of Foreign Affairs, The learned Advocate submits that only if these rules and ‘the subsequent decision given under the rules would have been considered then the fate of the case would have been otherwise on law and fact.

9. Dr. Rafiqur Rahman, the learned Advocate appearing for respondent No. 1, on seeing the relevant rules and the admitted papers filed in the paper book, found it difficult to controvert the submission of the learned Advocate for the appellant, He, however, submitted that the respondent should get an opportunity to controvert the facts and law now raised for the first time by the appellant and the matter may be remanded to the Tribunal for the said purpose.

10. We find from the judgment of the Administrative Tribunal that respondent No. 1 at the time of hearing of the case before the Tribunal produced Notification No. Estt. (1)-6/4/77 dated July 11. 1977 issued from the Ministry of Foreign Affairs with regard to the absorption of appellant and respondent No. 7 as the officers of the Ministry of Foreign Affairs. The relevant portion of the same runs as follows:

Name             Date of first Appointment Date of Joining.            Remarks 
4. Mr. Sheikh Ahmed Jalal 29-1-78 9-2-72 3rd Secretary,Embassy of

Bangladesh,

Tokyo.
5. Mr. Raziul Hasan  11-6-73 16-6-73 3rd Secretary,Embassy of

Bangladesh,

Paris.

 
6. Mr. Rafique Ahmed  16-6-71 15-6-71 3rd Secretary,at Mujib Nagar

11. From the above position the learned Member held in his judgment as under:

“In the Gradation List published in 1984 nothing is mentioned as to if the opposite party Nos. 6-7 were appointees of Mujib Nagar Government as was noted in the case with Mr. Rafique Ahmed Khan. The dates of first appointment of the opposite Party Nos. 6-7 relate to a period long after the war of liberation. The petitioner also produced photo copy of the first appointment letters of the opposite party Nos. 6-7 dated 29-1-73 and 11-6-73. From these appointment letters it does not appear that the opposite party Nos. 6-7 were absorbed as Mujib Nagar employees. From all these papers it appears that the opposite party Nos. 6-7 were directly appointed on 29-1-73 and 11-6-73 respectively and accordingly, the gradation list was correctly prepared and published in 1984. Subsequently, the opposite party Nos. 6-7 raised the claim to the effect that they were Mujib Nagar employees and accordingly, the Government have decided to give the opposite party Nos. 6-7 seniority as Mujib Nagar employees.

The Ministry of Establishment did not contest the claim of the petitioner. The opposite party No. 1 also did not produce any documents on the basis of which the opposite party Nos. 6-7 have been given also seniority as Mujib Nagar employees. The purported seniority to be given to the opposite party Nos. 6-7 above that of the petitioner appears to be one not based on any valid papers and contrary to their appointment letters. In that view of the matter the placement of the Opposite Party Nos. 6-7 at serial Nos. 80 and 81 in the Gradation List of 1989 cannot be accepted as legal and based on any valid foundation.

In all fairness of the things the restoration of the position of the gradation list of 1984 will be appropriate.”

12. Thus it is palpable that the gradation list published in 1984 showed that appellant Raziul Hasan did not get his benefits of the seniority as per the existing rules. Whereas the resolution of the Council Committee dated 15-2-89 and the Gazette Notification dated 7-3-89 as mentioned above show a different picture altogether.

13. We now find that no remedy is available to the appellant, though a gross injustice has been done to him for no fault or laches of his own. A valuable right accrued to the appellant in law and fact should not be lost. In that view of the matter, we thought it to be a most appropriate case to exercise our jurisdiction under Article 104 of the Constitution. It will not be out of place to say that Article 32 (2) of the Constitution of India invests the Supreme Court of India not only with the writ jurisdiction but also with the power to issue directions, orders or writs in any matter. Thus the Indian Supreme Court possesses original jurisdiction. But in the scheme of our Constitution we can only do complete justice under Article 104 of the Constitution in a matter or cause which is pending in appeal under Article 103 of the Constitution. A substantial injustice having been done to the appellant we feel that the jurisdiction under Article 104 of the Constitution should be exercised in the facts and circumstances of this case.

14. Before parting with the case, it may be mentioned that in Government Service the question of due promotion and seniority are very important matter and a person who enters Govt. Service always thinks that if he performs his duty with honesty, sincerity and dedication his promotion and seniority is secured. In doing complete justice in this case we are not unmindful of this important consideration.

Accordingly, the appeal is allowed without cost and Administrative Tribunal Case No. 264 of 1990 is remanded to the Administrative Tribunal to reconsider only the last part of its order as to the Gradation List of 1989 after giving an opportunity to the appellant to file a written statement and hearing respondent No. 1 and the appellant afresh. The other parts of the Tribunal’s order will remain and not be reopened.

Ed.

Source : 48 DLR (AD) (1996) 71

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