Syed S.M. Hasan. (Appellant)
Bangladesh represented by the Secretary, Ministry of Finance, Banking Division and another (Respondents)
Mainur Reza Chowdhury CJ
Mohammad Fazlul Karim J
Syed J. R. Mudassir Husain J
Judgment : December 18, 2002.
Cases Referred to-
Madras City Wine Merchants’ Association V. State of T. N. (1994) 5 SCC 509, Schmidt Vs. Secretary of State for Home Affairs. 1969 2 Chancery 149, Secretary, Ministry of Establishment Vs. Md. Jahangir Hossain, 51 DLR (AD) 148.
Abdur Rob Chowdhury, Senior Advocate, instructed by A.K.M. Shahidul Huq, Advocate-on-Record- For the Appellant.
A.F. Hassan Arif, Attorney General, instructed by Sufia Khatun, Advocate-on-Record- For Respondents.
Civil Appeal No. 452 of 2001
(From the Judgment and Order dated 29 March 2001 passed by the High Court Division in Writ Petition No. 5100 of 2000).
Mohammad Fazlul Karim J. – This appeal by leave arose to consider the following grounds:
I. Because the High Court Division failed to appreciate the nature of the right which had accrued to the petitioner that could not be denied or defeated without reasonable reasons and the plea of the expiry of the period of validity was arbitrary and malafide which had no nexus with the objective to be achieved.
II. Because the limit of the expiry of the validity of the selected persons in 1997 was arbitrarily fixed first upto 31.12.98 and then upto 30.6.99 without any sanction of law and nexus with the objective to be achieved and as such it was arbitrary and malafide.
III. Because the respondent Government practiced double standard by promoting 7 persons left out from the 1999 selection along with the persons selected in 2000 without considering the case of the petitioner and 12 others who were left out from 1997 list though they were similarly situated and deserved similar treatment.
2. The appellant was a Deputy General Manager of the Rupali Bank on and from 1.10.1989 filed the writ petition stating, inter alia that all posts of the General Manager in all nationalized Banks and the Rupali Bank Ltd. were included in a common pool with a combined seniority list and promotion centrally controlled under the provisions of the Public Notification No. MF/Banking Division/Sec. IV/Recruitment Rules-3/95-124 dated 09.03.96 issued by the Government in the Ministry of Finance. That pursuant to the provisions contained in the aforesaid Notification dated 9.3.96, a Committee comprising of the following was set up:
1. The Governor of Bangladesh Bank, Mr. Lutfar Rahman Sarker
2. Mr. Shohrabuddin Ahmed, Deputy Governor, Bangladesh Bank
3. Mr. Aminur Rahman, Joint Secretary, Ministry of Finance
4. Mr. M.A. Matin, Joint Secretary, Establishment Division and
5. Mr. Nurunnabi, Joint Secretary, Ministry of Finance.
3. The said Committee called the appellant along with many other Deputy General Managers in 1997 for an interview for selection for promotion to the grade of General Managers in terms of the Provisions in para 5(3) of the aforesaid Notification. That the Selection Committee under the Chairmanship of the Governor of the Bangladesh Bank thoroughly examined the service record, work experience and academic qualifications and the relative seniority of 70 eligible candidates and then prepared a list of 35 candidates found fit for promotion. A list of 35 candidates in which the name of the appellant appears at serial No. 25 was submitted to the Hon’ble Prime Minister in a summary being No. MF/Banking Division/Sec. IV/Recruitment-11/95 (Pt. 1) dated 12.07.98 by the Ministry of Finance with the further recommendation that the Panel of the Selected candidates be kept valid till 31.12.99. It appears that there was inordinate delay in submitting the summary to the Hon’ble Prime Minister who was pleased to approve the list on 24.01.99. In the summary dated 12.07.98, it was recommended to keep the panel of the selected candidate valid upto 31.12.99 i.e., for about 18 months. But the Prime Minister approved it for little over 05 months upto 30.06.99 causing serious prejudice to the appellant and others included in the list. That out of the said list of 35, all but 13 officers were given promotion.
4. That under the Notification No. 95-31 dated 13.01.99 another Selection Committee was set up with the new Governor of Bangladesh Bank Dr. Farasuddin Ahmed and 03 other members. The said Committee selected 328 D.G.Ms, for promotion upon interview of all incumbents including the appellant and 12 others who were selected earlier but they were not selected.
5. That another interview committee was set up in 2000. The petitioner and 12 others who were left out from 1998 list along with others again appeared before this Committee. A list of 24 Deputy General Managers who were all junior to the appellant was prepared and approved by the Prime Minister on 21.09.2000. In this list also, the appellant and 12 others listed and approved in the first list and 07 others who were approved in the second interview were excluded due to extraneous considerations.
6. That the exclusion of the appellant and 12 others who were found fit for promotion in the First Selection Board in 1997 and 07 others who were found fit for promotion by the Second Interview Board were left out arbitrarily, malafide and in violation of their fundamental rights.
7. That the Finance Minister Mr. Shah A.M.S. Kibria submitted an Special Report to the Prime Minister on 30.08.2000 recommending approval of the promotion list and the Prime Minister was pleased to approve the list of 24 persons submitted with the summary of the Ministry of Finance dated 23.08.2000 together with the left over 07 persons of the previous year on 21.09.2000.
8. In making the recommendation for the 07 persons left out from the second group, the Finance Minister stated that “for ends justice” they should be promoted first before promoting the 24 persons recommended in the third group; that the reasons advanced by the Finance Minister for 07 persons left out from the second group would also apply with equal or perhaps better force for the appellant and 12 others left out from the first group and as such the Finance Minister’s recommendation was partial and discriminatory for not including the names of 13 persons including the appellant who were found fit for promotion of June 1997 but was not actually promoted for no fault of theirs as the Hon’ble Minister’s was bound to act fairly and justly but failed to do so causing serious prejudice to the appellant and 12 others of the first list prepared in June 1998.
9. That all the persons included in the list with the summary dated 23.08.2000 and the 07 persons included in the Finance Minster’s Special recommendation dated 30.08.2000 are junior in service to the appellant and 12 others who were left out of promotion. Some of the persons included in the approval of the Prime Minister on 21.09.2000 have already been promoted and others are in the process of being promoted soon. For ends of justice, it is essential to restrain the respondents from promoting the remaining persons approved on 21.09.2000 till the promotion of the appellant and 12 others were effected.
10. The High Court Division discharged the rule by the impugned judgment, out of which this appeal arose by leave as aforesaid.
11. Mr. Abdur Rob Chowdhury, the learned Counsel for the appellants submits that under the procedure established under the Notification dated 9.3.1996, an officer selected by the Selection Committee would be entitled to promotion when the selection is approved by the Prime Minister. As the appellant’s selection was approved by the Prime Minister, he acquired vested right to be promoted which was a very valuable right, could not be wiped out on the plea of expiry of the period validity. The learned Counsel further submitted that while selecting the appellant and others, in 1998, it was stipulated that they would be promoted against vacancies occurring upto 31.12.1999 and if the list was not completed, the period would be extended further, instead of extending the time which was stipulated at the time of selection, it was arbitrarily cut short for no reasonable ground. The learned Counsel submits that the Government practiced double standard by promoting 7 persons who were left out from the list of 1999 while promoting the persons selected 2000 without considering the case of the appellant and 12 others who were similarly situated being selected in the list of 1998 and deserved similar treatment.
12. Mr. A. F. Hassan Ariff, the learned Attorney General appearing for the respondents submitted that the respondent had no legal duty towards the appellants to empanel him and to promote him according to any such panel as of right as the same has no statutory basis inasmuch as the appellant could not be promoted within the specified time for which the penal was prepared. The learned Attorney General has further submitted that the appellant has appeared subsequently before the selection Board for empanelment waiving the previous empanelment for promotion to the post of General manager and being unsuccessful to be empanelled could not maintain his claim on the basis of lapse empanelment of 1998.
13. Admittedly the appellant was empanelled along with 69 others for promotion to the post of General Manager of the specified banks under a notification dated 9.3.1996 providing for promotion to the post of General Manager from the post of Deputy General Manager on being recommended by a Committee consideration of the educational qualification, experience, annual confidential report and interview and thus evaluating the merit of the candidate as contemplated in clause (3) of the said notification. The list was valid for appointment upto 30th day of June 1998 when panel of 1997 was prepared fixing the date and thereafter 2nd panel was prepared and the last date was fixed on 30.6.1999 for appointment. The appellant not having been promoted has moved this Court with plea that the Hon’ble Prime Minister and Finance Minister has included in the latest list 7 other empanelled left over Deputy General Manager in the second list for appointment together with the third list of empanelled officers for ends of justice and accordingly the appellant belonging to the same situation like those 7 officers recommended for appointment has the legitimate expectation to be recommended for promotion.
14. Under the normal rules for the purpose of promotion, posts are divided into two broad categories viz., “selection” posts and “non-selection” posts. The former category covers those posts to which promotion is made strictly on the basis of merit but seniority playing its part only when all other qualifications are practically equal. The later category includes posts to which promotion is made on the principle of “seniority-cum-fitness”.
15. What is exactly implied by the term “seniority-cum-fitness” is explained as while considering the cases of two or more officials for promotion to a post which is to be filled- on the basis of seniority-cum-fitness the senior-most person must be considered first and if he is found good enough to hold the post, he should be promoted even though the person or persons below him happen to be better qualified than him. If, however, the senior most official is adjusted as unfit and rejected for promotion, the person immediately below him on the seniority list must be considered. If, the latter too is rejected by reason of being unfit then the person who stands third on the seniority list must be considered and so on.
16. In other words, if in a Ministry or Department there are three eligible persons of whom the senior-most is considered just good enough for promotion, the second one is better than the first and the third is the best of the lot, then the senior-most person must be promoted against a “non-selection” post despite the fact that the two persons immediately below him possess far superior merit.
17. Admittedly the appellant’s name was recommended in the list by the Selection Committee duly approved by the Prime Minister for promotion to the post of General Manager and most of the listed officers were promoted within the period but the appellant did not get any chance as there was not vacancy to accommodate him within the period. Thereafter, the Government formed the second Selection Committee for empanelment to fill in the vacant posts. It appears from the affidavit-in-opposition that the appellant again appeared before the Selection Committee but was not selected as he was not qualified to be posted in the list. The Prime Minister approved the selected 1st, list giving a dead line upto 30th June 1998. Thereafter, 2nd and third panels were prepared and in the 3rd list 07 left out officials of the second list were recommended to be empanelled for promotion to the post of General Manager.
18. The appellant thereafter moved this Court for a direction in the nature of mandamus upon the respondents, for which the rule was issued as to why the appellant and 12 other left out candidates should not be promoted to the posts of General Manager who were selected for promotion in June 1998 and which was also approved by the Prime Minister on 24.1.1999 which was valid upto 30th June 1999 and thus the appellant’s case is required to be considered as it conferred a definite right to be considered for promotion to the post of General Manager which right could only be affected in future if other conditions do not remain the same. The authority concerned by putting a dead line could not wipe out the right as already come into existence with reference to the third list duly approved by the Prime Minister.
19. The learned Counsel for the appellant further submits that if 7 of the left over listees in the second list could be forwarded and included into the 3rd list for ends of justice ignoring the time frame of 30th of June 1999 it would be discriminatory and harsh if this time frame in case of appellant standing on the same footing is carried forwarded so as to disentitle him of his right to be considered for promotion to the post of General Manager.
20. Mr. Chowdhury has referred to the decision in the case of Secretary, Ministry of Establishment Vs. Md. Jahangir Hossain reported in 51 DLR (AD)148 for the proposition that the authority having prepared a list and actually appointed some from the list, others left out could enforce their fundamental right. In the said decision Mostafa Kamal J. as his Lordship then was held:
“……..If the petitioners merely prepared a list and kept it to themselves or their different departments for implementation as and when possible the writ petitioners had nothing to complain about; but when a number of them are appointed from a list and the appointment of others is postponed pending inquiry into the genuineness a list comprising of 1745 persons with which list the writ petitioners have no concern, then they can legitimately complain of inequality before law and discrimination in public employment.”
21. Mr. Hassan Ariff, the learned Attorney General for Bangladesh has, however, submitted that the appellant having again appeared at the examination before the Selection Committee at the time of preparation of second list for empanelling the officers to be promoted and having failed to obtain the requisite marks has waived his right on the basis of first empanelment and thus allowed his right to be lapsed and waived and waited until preparation of third list of officers empanelled for consideration of promotion to the post of General Manager. Furthermore, it is after preparation of third list the appellant has mover this Court.
22. In Halsbury’s Laws of England, Third Edition, Volume 14, page 637 the word ‘waiver’ has been explained as under :-
“Waiver is the abandonment of a right, and is either express or implied from conduct. A person who is entitled to the benefit of a stipulation in a contract or of a statutory provision may waive it, and allow the contract or transaction to proceed as though the stipulation or provision did not exist. Waiver of this kind depends upon consent and the fact that the other party has acted upon it is sufficient consideration. Where the waiver is not express, it may be implied from conduct which is inconsistent with the continuance of the right”.
23. In the same volume at page 638 it has been stated that “acquiescence” in its proper legal sense implies that a person abstains from interfering while a violation of his legal rights is in progress and further that:
“Acquiescence operates by way of estoppel. It is acquiescence in such circumstances that assent may reasonable be inferred, and is an instance of estoppel by words or conduct. Consequently, if the whole circumstances are proper for raising this estoppel, the party acquiescing cannot afterwards complain of the violation of his right.”
24. It is clear, therefore, that the facts proved in a particular case may give rise to waiver and acquiescence and the appellant by his acquiescence in appearing at the examination when 2nd list was being prepared has acted inconsistent with the continuance of his alleged accrued right and thus estopped from enforcing his right of promotion on the basis of his 1st empanelled list. It is to be observed, however, that even the statutory right will be denied to a person on proof of such combination of facts upon which a Court of law can reasonably and validly make an inference of waiver and/or acquiescence.
25. As no specific agreement is necessary for raising such plea, it is equally important to remember that any and every act touching the transaction in which the appellant may have taken part or the mere fact of knowledge about the 2nd list and waiting till the preparation of the 3rd list and rose from the slumber when some of the candidates qualified in the 2nd list and could not be posted within the time fixed but were given chance by the Minister and promoted, shall debars him for not resting on his right at the appropriate time. Essentially, therefore, it will be a question of proper inference from the facts proved in each particular case as to whether the plea of waiver and acquiescence exists validly or not.
26. The word ‘acquiescence’ is thus is a sign of waiver of claim or to relinquish or forgo the right, there be any. The appellant having been appeared at the examination for the second time after the expiry of the period of the 1st list where he failed to qualify, thus waived his right accrued by his 1st empanelment if there be any, to be considered to the post of General Manager.
27. The learned Counsel for the appellant, however, submitted that the appellant’s legitimate expectation to consider for promotion to the post of General Manager as per the 1st list to the post as and when shall fall vacant cannot be demolished/taken away/extinguished for no fault of him as, in the meantime, he has not acquired any disqualification for the post.
28. In the Schmidt Vs. Secretary of State for Home Affairs reported in 1969 2 Chancery 149, Lord Denning M.R. held that:
“……. an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest, or, I would add, some legitimate expectation, of which it would not be fair to deprive him without hearing what he has to say.”
29. The appellant has raised the issue of his legitimate expectation to be considered on the basis of 1st empanelment as during the period of its subsistence or thereafter has not incurred any disqualification to be promoted on the basis of the 1st list and that subsequently on 30.8.2000 the Finance Minister has recommended for promotion of 7 incumbent officers empanelled in the second list but could not be appointed within the time limit of 30.6.2000 for ends of justice.
30. But in the instant case the list was prepared with a time limit and the appellant could not avail his chance within the said period specified thereunder and thus was not promoted and he subsequently appeared for empanelment in the second list but having been failed have himself given go bye to the chance of reasonable expectation, if there be any.
31. The concept reasonable expectation has imposed a duty on the public authority to act fairly by taking into consideration all relevant factors relating to the expectation as the denial of it would amount to denial of the right guaranteed or secured and would lead to arbitrary, unfair or discriminatory treatment.
32. Reasonable expectation has been detailed in the case of Madras City Wine Merchants’ Association V. State of T. N. reported in (1994) 5 SCC 509 that if there is an express promise given by a public authority or existence of a regular practice which the claimant can reasonably expect to continue and such expectation may be reasonable but the said expectation would not arise in case of any change in policy or if in public interest the policy is changed by rule or legislation.
33. It is to be found from the instant fact that the appellant did not agitate his claim in any Court of law until the Minister has recommended inclusion of 7 left out listees in the 2nd list to be listed in the third list and to be included for consideration for promotion to the post of General Manager. Moreover the appellant has appeared at the 2nd examination and was unsuccessful to be listed. Thus waiver and/or acquiescence in the facts of the case operates as estoppels and as such no case of legitimate expectation as well is attracted in the facts and circumstances of the instant case.
34. Since the appellant has as well his right to be considered for promotion having appeared in the second examination for selection and failed to qualify himself, we do not find any merit in the submission of the learned Counsel for the appellant.
35. Before parting with the matter, we like to add that right to be promoted on the basis of seniority-cum-fitness is inherent right of the appellant under the service rules and once selected for promotion should not be deprived of such right during the period of tenure of service unless meanwhile he acquires disqualification to be promoted. But in the instant case the list of selected candidates have been circumscribed by a time frame, which is opposed to the scheme of the notification providing such selection. It is desirable that once an incumbent is selected for promotion the list should continue until it is exhausted and thereafter step should be taken to select others who would follow the suite. Making of a long list than the expected vacant posts and putting a time frame and then again selecting others and preparing a new list is highly deprecated as the same tend to deprive the listees who are in the lower side of the list of their legitimate expectation to be promoted in due course.
36. The list should be shorter one considering the vacant available posts. The authority would, however, order for impaneling the officers keeping in mind the proportion to the posts lying vacant or would be expected to be vacant within certain period and then prepare a list fir filling up the post phase by phase instead of preparing a long list, as has been done in the past. The service is a discipline in the organization and in order to maintain the discipline and efficiency a person who is qualified to be promoted once recommended for the purpose with the approval of the competent authority shall continue to remain so until he is retired or acquires certain disqualification meanwhile and this is his legitimate expectation on being selected for promotion but the unwarranted time frame put off the unexhausted list so prepared abruptly and prematurely contrary to the principle of legitimate expectation and in utter ignorance of the seniority of an incumbent to be promoted which is not desirable for the sake of good governance in the institution. The institution in its own discipline preparing a list for promotion according to merit-cum-seniority and without exhausting the same, preparation of another list out of the employees is surely tend to be discriminatory and contrary to the principle of equity and good conscious.
In the result, this appeal is dismissed without an order as to costs.
Source : 60 DLR (AD) (2008) 76