Appellate Division Cases
(Civil)
PARTIES
The Director General, NSI……………………. Appellant.
-vs-
Sultan Ahmed …………………………………Respondent.
JUSTICE
A.T.M. Afzal C J
Latifur Rahman J
Muhammad AbdurRouf J
Mohammad Ismailuddin Sarker J
JUDGEMENT DATE: 14th December, 1995
The Administrative Tribunal Act 1980 (Act No. VII of 1981), Section 4(2).
The Surplus Public Servants Absorption Ordinance (XXIV of 1985), Section 2(d),
(iv), 5, 6.
Inspite of some amount of dubiousness on the part of the Government as regards the absorption of the respondent we have though it just and proper to extend the benefit of doubt in favour of the respondent, for otherwise it will amount to endorsing a double standard on the part of executive Government giving a benefit to a particular person and denying the same to another although they are otherwise equal …………………..(23)
Civil Appeal No. 37 of 1995. (From the Judgment and Order dated April 28, 1994 passed by the Administrative Appellate Tnbunal in Appeal No. 21 of 1993)
A.W. Bhuiyan, Additional Attorney General, (B. Hossain, Deputy Attorney General with him), instructed by Sharifuddin Chaklader, Advocateon-Record …….For the Appellant
M.A. Wahhab Mi ah, Advocate, instructed by Mr. Shamsul Huq Siddique, Advocate-on-
Record ……………….For the Respondent
JUDGMENT
1. A.T.M. Afzal C J:- The question raised in this appeal by leave is whether the respondent who is an Assistant Director, National Security Intelligence (N.S.I.) Department should be treated as an officer absorbed in the said department as a surplus officer on 2.1.1986 under the Surplus Public Servants Absorption Ordinance 1985 (Ordinance No. XXIV of 1985), hereinafter called the Ordinance. The Administrative Tribunals below answered the question in the affirmative but the Director General, N.S.I., who was opposite party No. 3 in the original application, being aggrieved by the said concurrent decision, obtained leave to appeal from the same.
2. The respondent filed case No. 129 of 1991 before the Administrative Tribunal. Dhaka under section 4(2) of the Administrative Tribunal Act 1980 (Act No. VII of 1981) for a declaration that the orders dated 25.2.1988 and 5.4.1988 passed by the Ministry of Establishment and the Directorate of N.S.I. respectively are illegal and further for a declaration that the respondent has been in the service of the N.S.I, as an officer absorbed with the entitlement of seniority on the basis of past service and all attendant benefits. The responder’s case is that he was appointed on 31.12.1976 as a District Population Education Officer under the Population Education Programmer of the Ministry of Education and he served in that capacity upto 30.9.1985. As a result of the administrative reorganization the Project was abolished and the Ministry of Education sent a list of officers of the Project including the name of the respondent to the Ministry of Establishment for absorption as surplus staff. The Ministry of Establishment by its Memo No. ME (S-P)-156-85 dated 10.11.1985 nominated the respondent and two others of the same Project for absorption as Assistant Director in the N.S.I, under the President’s Secretariat. Accordingly the respondent was absorbed as such with effect from 2.1.1986 by order of the President. Subsequently, however, the respondent was treated as retrenched officer by the appellant by its letter dated 12.5.1986 (Page 62 of the paper book). The respondent was initially appointed with the approval of the Public Service Commission. The project in which he was working and which was abolished in 1985 due to administrative reorganization was merged with the Text Book Board and the respondent was never retrenched from service as alleged. One Shahadat Hossain who served in the same Project with the respondent was absorbed in the Ministry of Establishment and has been given seniority and time scale. The respondent has been legally and rightly absorbed as surplus officer like Shahadat Hossain and he cannot be treated to have been appointed afresh as a retrenched officer. The respondent is entitled to equal protection of law and should be treated in the same manner as in the case of Shahadat Hossain. The respondent preferred a review petition against the impugned order but without any result. Hence, the application.
3. The appellant contested the case by filling a written statement in which the material allegations made by the respondent were denied and it was asserted that although the name of the respondent was sent to the Establishment Ministry by the respondent’s Ministry i.e., Ministry of Education to the effect that he was a surplus officer but in fact that was not the correct position. Subsequently the position was corrected and clarified by the Establishment Ministry that the respondent along with two other officers of the Population Education Programme were retrenched staff thereof. The said officers along with the respondent were appointed afresh as retrenched officers. There was no substance in the respondent’s case and as such it was liable to be dismissed.
4. The Administrative Tribunal found that Shahadat Hossain, a colleague of the respondent, was absorbed as Research Officer in the Establishment Ministry and granted time scale on the basis of his past service and as such denial of the same benefits to the respondent would be violative of Article 27 of the Constitution and amount to application of a double standard. The learned Advocate representing the opposite party-appellant conceded before the Tribunal that he “has no legal stand to disagree and deny to the claim of the petitioner”. Accordingly by judgment and order dated 6.1.1993 the application of the respondent was allowed and the impugned orders were declared illegal and to be of no legal effect and “further declared that the petitioner (respondent herein) has been absorbed in the N.S. I. as surplus officer and he is entitled to all benefits as admissible under Rules”.
5. The appellant unsuccessfully took an appeal, No. 21 of 1993, to the Administrative Appellate Tribunal Against the aforesaid decision of the Tribunal. The Appellate Tribunal found that the respondent is a surplus officer and not a retrenched one and that the impugned order dated 25.2.1988 (Annexure 13) was of no help to the appellant. The appeal was dismissed by judgment and order dated 28.4.1994 out of which the present appeal by leave has arisen.
6. At the hearing of the leave petition it was submitted by the learned Deputy Attorney General that certain relevant documents which were produced then could not be produced in the Tribunals below through inadvertence. He submitted that had all these documents which are Government’s orders and memos issued from time to time were considered by the Tribunals below then the decision in the matter would have been different. It was, therefore, prayed that an opportunity should be given to the appellant to bring on record the said relevant documents for consideration of this Court which unfortunately could not be produced before the Tribunals.
7. In the special facts of the case, the prayer was granted and so also the leave.
8. At the time of hearing of the appeal, however, the learned Deputy Attorney General filed an application expressing regret and tendering apology for the wrong representation that was made at the hearing of the Jeave application. It has been stated that through inadvertence again it was submitted then that all the relevant documents could not be produced before the Tribunals but upon inspection of the record it was found that all the documents were produced before the Tribunals, but the learned Advocate representating the appellant failed to draw the attention of the Tribunals to the said documents which were important form the point of view of the appellant. He has submitted that the paper book for this appeal has been prepared incorporating all the relevant documents besides the usual papers.
9. The paper book which is before us is disgusting and could not have been more unsatisfactory because of the unsystematic manner in which it has been prepared and the documents incorporated therein. It seems that negligence and carelessness have become a routine work in the matter of preparation of briefs and paper books on behalf of the State. This is not only being disrespectful to the Court but the Government which should realize that ultimately it is the interest of the Government which suffers due to such bad work.
10. Be that as it may, the hearing went on with difficulty with this untidy paper book.
11. The learned Additional Attorney General who made himself available in the midst of the hearing of the appeal to represent the appellant submitted upon meticulously placing all the relevant orders and memos of the Government that there might have been some confusion in the matter of treatment of persons who had lost their jobs due to administrative reorganization including the respondent but there are sufficient materials on record to show that the Ministry of Establishment, which is the appropriate authority in the matter, finally treated the respondent as a because of the abolition of the Population Education Programme and not as a surplus officer. He also submitted that the respondent does not fall within the definition of a ‘surplus Public Servant’ as provided in section 2(e) of the Ordinance and as such the impugned order dated 25.2.1988 was legal and proper.
12. Mr. M.A. Wahab Miah, learned Advocate for the respondent, relying on the same Government orders and memos and some other papers submitted that the Ministry of Establishment itself treated the respondent and others of his category as surplus officers from the very beginning although some orders are there which described the respondent as a new recruit in the N.S.I. Mr. Wahab Miah submitted demonstrating from the papers on record that the authorities of the N.S.I, were unwilling to accept the respondent as directed by the Government and have always been showing a step-motherly attitude towards him ever since because they had to accept the respondent inspite of their undisguised hostility. Lastly, he submitted that the Tribunals below rightly held that there was discrimination made in the case of the respondent and that he was unfairly treated by the impugned orders in violation of the Constitutional protection of equality and the norms of fairplay. The present appeal should, therefore, be dismissed, he submitted.
13. The first document which the learned Additional Attorney General has rightly drawn our attention to is a notification dated 18.1.1986 of the President’s Secretariat by which the respondent and two others from the abolished Population Education Programme were absorbed as “surplus officers” in the N.S.I, with effect from 2.1.1986 (Page 61 P.B.). In that notification reference was made to three memos of the Ministry of Establishment i.e., dated 18.8.1985 and 15.12.1985. Before referring to the said memos the learned Additional Attorney General very fairly placed a basic document which is at page 194 (P.B). It is a summary made by the Ministry of Establishment dated 27.7.1985 for consideration of the Hon’ble President with regard to the appointment of officers and employees who had lost their jobs due to administrative reorganization. This document was Annexure ‘8’ to the application in the Tribunal. This is a very important document for the respondent, fo,r it bears the Government’s policy and decision on the above subject. It is, therefore, necessary to quote the document in full: Memo dated 18.8.1985 of the Ministry of Establishment on the same subject (copy produced by the learned Addl. Attorney General) reiterates that the Government has decided that the persons who had lost their jobs due to abolition of certain departments and organizations consequent upon administrative reorganization would be absorbed under the Ordinance. It reads as follows: Memo dated 10-11-1985 of the same Ministry issued on the same subject (Annexure ‘5’ Page 187 P.B.) for the first time mentioned that the respondent and two others who were nominated for appointment in the N.S.I, were to be recruited in the vacant quotas of direct recruits “like” surplus employees. But at the same time it was also mentioned in the same Memo that the respondent and others would be absorbed under the Ordinance. The learned Additional Attorney General has found it difficult to disown that the Government had so far treated the respondent as a ‘surplus public servant’ under the Ordinance. It has already been noticed that he was absorbed as such by notification dated 18.1.1986.
14. The learned Additional Attorney General, however, put much emphasis on memo dated 15.12.1985 (Annexure ‘3’ Page 185 P.B.) by which, according to him, the Government finally made its decision known in respect of after clarifying the confusion that was created. It was clearly stated in the said memo that the aforesaid officers and employees would be treated as “new recruits” in the posts to which they are given nomination by the Ministry of Establishment. The learned Additional Attorney General has submitted that the impugned order dated 25.2.1988 is in keeping with the policy and decision of the Government as mentioned in the said memo dated 15.12.1985 and the Appellate Tribunal was wrong in holding that the statement in the impugned order that the respondent was not a ‘surplus’ officer was not based on any document and “was a mere surmise of the concerned Deputy Secretary of the Establishment Ministry”.
15. Mr. M.A. Wahab Miah draw our attention to several letters issued by the Ministry of Education showing that the said Ministry always treated and described the respondent and others as surplus staff due to abolition of the Population Education Programme from 30 June 1985. The Ministry of Education sent a list of surplus officers to the Ministry of Establishment for their absorption. The learned Additional Attorney General argued with reference to the Rules of Business, 1975 (as amended) that it is the function of the Ministry of Establishment to deal with all matters regarding absorption/employment of surplus public servants and that a mere description by another Ministry as ‘surplus’ would not make an employee ‘surplus’ under the Ordinance and the Rules. Mr. M.A. Wahab Miah submitted that although the Ministry of Establishment has the responsibility to deal with absorption/ employment of surplus public servants but a particular Ministry can and should declare as to who have become surplus in that Ministry due to administrative reorganization. In this connection Mr. Wahab Miah brought to our notice a letter dated 31.1.1989 issued by the Ministry of Establishment and addressed to Secretaries of all Ministries/Divisions on the subject of absorption of surplus employees asking them to send proposals for absorption of genuine surplus public servants. He also drew our attention to two letters issued by the Ministries of Industry and Commerce by which lists of surplus employees were to the Establishment Ministry on the abolition of certain Directorates under them.
16. The learned Additional Attorney General submitted that the respondent could not be treated as a surplus public servant under the Ordinance because he does not qualify even as a ‘public servant’ as defined in section 2(d). By definition a person is not a ‘public servant’ who is an employee in or under a project set up for a temporary period for specified purposes (Section 2)(d) )(iv). He has argued that as the project of Population Education Programme was set up for a temporary period for a specified purpose, the respondent, who was an officer in the said project, was not a public servant.
17. There is no material before us to show that the said Project was a temporary one and established for a specified purpose as submitted by the learned Additional Attorney General. His argument is that since the project was admittedly abolished from 30 June 1985 it must have been a temporary project. A permanent thing cannot be abolished he submits. The argument overlooks that the abolition was due to administrative reorganization as in many other departments and divisions and not because the Project was temporary. In point of fact it is found that the project was merged with National Curriculum and Text Book Board (vide pages 136,140 P.B.). From the mere fact that the project was abolished (and merged with another organization), it cannot be said that the project was set up for a temporary period for specified purpose. It is on record that the respondent was working in the project for nearly 10 years when it was abolished due to administrative reorganization in 1985. Innumerable instances have been brought to our notice where upon abolition of some offices under some ministry or division the employees thereof have been treated as surplus and absorbed as such.
18. In the impugned memo dated 25.2.1988 , it has been stated about the respondent and two others (Zahid Hossain and Ismail Hossain) that they would be treated as and not as surplus inasmuch as the Project they had been working in was abolished. Our attention has been drawn to a number of memos of the Establishment Ministry showing that the personnel of the same project were treated as ‘surplus’ and extended service benefits as such. Even aforesaid Zahid Hossain was also traded as “surplus” and said to be absorbed under the Ordinance which will be evident from memo dated 23.4.1987 (Page 123 P.B)
19. Admittedly, Md, Shahadat Hossain also lost his job along with the respondent because of the abolition of the same project and he was absorbed as Research officer in the Ministry of Establishment itself as a surplus officer and granted new modified pay scale as will be evident from notification dated 19.11.1985 (Annexure 18, page 93 P.B) . He was also allowed time scale at the new national pay scale since 23.12.1984 (vide notification dated 19.11.1986, page 95 P.B Annexure 19). He was allowed further benefits asto time scale, pay etc. counting his past service in the Ministry of Education (vide memos dated 16.9.1986, 19.11.1986 page 97-105 P.B Annexure 20). The learned Addl. Attorney General sought to make a distinction between the respondent and shahadat Hossain by pointing out that the latter was absorbed with effect from 3.9.1985 while he was in service, but the respondent ceased to be a public servant on and from 30.9.1985 when he drew pay for the last time. Shahadat Hossain appears to have been successfully rifling his luck since he got the nomination for absorption as early as on 2.9.1985 (copy of relevant memos produced by learned Additional Attorney General) but this fortuitous fact cannot and should not be made a ground to treat the respondent differently for the simple reason that they belonged to the same stock, i.e. they lost their jobs due to the abolition of the PEP Project.
20. The learned Additional Attorney Genera] submitted that there is a difference between abolition off a project and abolition of a directorate/officer under a particular ministry because of administrative reorganisation whereas in the former case, an employee ceases to be a public servant and consequently is not a ‘surplus’ public servant under the Ordinance but in the latter case he or she remains to be governed by the Ordinance, Mr. Wahab Miah promptly put a nail to such argument by referring to memo dated 29.3.1989 of the Establishment Ministry (Annexure 27 , page 128 P.B) by which one Begum Humaiyare Amin was found to be a surplus public servant under the Ordinance and nominated for absoiption as such in the Social Welfare Directorate after the abolition of the inter state child adoption project where she was working as a liaison officer. The learned Addl. Attorney General replied that the question is not what the Establishment ministry has done but what the law provides because it could not override the law. We have already indicated that there is no material on record to show that the respondent is not a public servant within the meaning of the Ordinance and mere abolition of the project (found merged with No.C.T.B) is not conclusive of the fact that it was temporary and furthermore it was not the specific case of the appellant in the written statement that the respondent was not a public servant within the meaning of the ordinance.
21. From a perusal of the written statement and the various annexure on record to which Mr. Wahab Miah pointedly drew our attention, it becomes clear that the authorities of the N.S.I never accepted the nomination of the respondent and two others for absorption in the said office with kindness and their animosity towards them seems fo be too apparent to hide. To illustrate the point, reference may be made to their office letter dated 12.5. 1986 (Annexure 9, Page 62 P.B.) in which the address starts as, “You all retrenched officials of Family Planning Education Project it is not the Governments case that the respondent and others were retrenched from their Jobs/office. On the other hand, the Government on more than one occasion treated them as surplus public servants” under the Ordinance and nominated them for absorption in the N.S.I. It is significant that except the appellant, none of the opposite parties thought it necessary to take an appeal against the decision of the Administrative Tribunal. The respondent has bitterly submitted that his present authorities have always considered him a thorn in the flesh and taken all opportunities to deny him the same benefits which others like him have been enjoying pursuant to Government orders. The grievance does not seem to be without any foundation.
22. Section 5 of the Ordinance lays down the principles in accordance with which a surplus public servant is to be absorbed in a particular post. Section 6 provides that the seniority, pay and pension of surplus public servant shall, on his absorption in a post, be determined in accordance, with the principles laid down by the Government from time to time. In this connection, Mr, M A Wahab Miah has drawn our attention to memo dated 16.3.1987 of the Establishment Ministry (Annexure 23 Page 120 P.B) which was issued under Section 6 of the Ordinance. He submits that the respondent is entitled to the benefits under the said memo and of such other principles as are laid down by the Government from time to time as to the terms and conditions of service of surplus public servant. The learned Additional Attorney General has not disputed as to the benefits available to the respondent if he has been absorbed as a surplus public servant.
23. Having regard to the facts and circumstances of the case, we held that the respondent was absorbed in the N.S.I, as a surplus public servant within the meaning of the Ordinance. Inspite of some amount of dubiousness on the part of the Government as regards the absorption of the respondent we have though it just and proper to extend the benefit of doubt in favour of the respondent, for otherwise it will amount to endorsing a double standard on the part of executive Government giving a benefit to a particular person and denying the same to another although they are otherwise equal. In the result, therefore, he appeal is dismissed without any order as to cost.
Ed
Source: I ADC (2004), 596