Appellate Division Cases
(Civil)
PARTIES
The Government of the People’s Republic of Bangladesh Represented by the Secretary, Ministry of Finance, Implementation Division, Bangladesh Sachibalaya, Ramna, Dhaka and others……………………..Appellants.
-Vs-
Md. Shamsul Huq ……………………………….Respondent.
JUSTICE
Syed J.R. Mudassir Husain C J
Md. Ruhul Amin J
M.M. Ruhul Amin J
Md. Tafazzul Islam J
JUDGEMENT DATE: 13th August 2006
Mujibur Rahman vs. Government of Bangladesh, 44 DLR (AD) 111
Serajul Islam vs. The Director General of Food, 42 DLR (AD) 199
Bangladesh -Vs- Shafiuddin Ahmed reported 50 DLR (AD) 27
Writ petition is maintainable inasmuch as those Notification have been made under a statute having the force of law and the Administrative Tribunal does not have jurisdiction in respect of disputed matter herein ………………(10)
That the appellant used to perform similar functions and duties as performed by the
Personal Officers of the Secretariat and are similarly situated with the Personal
Officers of the Secretariat and he cannot be differently treated and the High Court
Division rightly found discrimination against the petitioner………………… (11)
As aforesaid having been issued by order of the President and the order contained therein have the force of law and we find substance in his above argument and as such we are of the view that the respondent and Personal Officers of the Secretariat having been similarly situated have been discriminated and can not be treated differently and is repugnant to the equality doctrine and under like circumstances and conditions should be treated alike both in their rights and privilege……… (12)
“Regard being had to the facts and circumstances of the case, materials on record and submissions of the learned Counsel, we are in not doubt that the petitioner i.e. P.A.Cum-Stenographers attached to the Judges of the Supreme Court of Bangladesh have been discriminated against in matters scale of pay status and other financial facilities enjoyed by their counter part in the Secretariat and having found substance and force in the arguments advanced by the learned Counsel for the petitioner, the Rule is made absolute without however any order as to costs.
Annexures E and F dated 05-07-1998 and 14-03-2000 respectively are hereby declared to have been issued without lawful authority and to be of no legal effect as
those are discriminatory arbitrary and irrational and as such violative of Article
27 and 29 of the Constitution. The respondents are therefore directed to extend the same benefits to the P.A.-Cum-Stenographers attached to the Judges of the Supreme Court of Bangladesh i.e. Scale of Pay status and other financial benefits
enjoyed by their counter parts working in the Secretariat/Ministries within 3 (three)
from the date of receipt of this judgment.”………(14)
“Within its Jurisdiction the Tribunal can strike down an order for violation of principles of natural justice as well as for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising of sub-clause (a), but such tribunals cannot, like the Indian Administrative Tribunals in exercise of a more comprehensive jurisdiction under Article 323A (see SP Sampath Kumar vs. Union of India, AIR 1937 SC 386 (Para 16) and JB Chopra vs. Union of India AIR 1987 SC 357 (Para 2), strike down any law or rule on the ground of its constitutionality. A person in the service of the Republic who intends to invoke fundamental right for challenging the vires of a law will seek his remedy under Article 102(1), but in all other cases he will be required to seek remedy under Article 117(2)”…………”an aggrieved person may, out of desperation or just for taking a sportive chance in the summary writ jurisdiction, allege contravention of some fundamental right which may turn out to be frivolous or vexatious or not event remotely attracted in his case. The Court its, however, to be on guard so the great value of the right given under Article 102(1) is not frittered away or misused as a substituted for more appropriate remedy available for an unlawful action involving no infringement of any fundamental right.” …………(19)
That to give effect to Article 163 of the Constitution, Services (Re-organization an
Condition) Act 1975 was enacted and section-5 thereof empowered the Government,
by order notified in the official gazette, to prescribe united grade and scale pay etc.
and accordingly Annexures D(l) and D(2) were issued on the “Order of the President” and were also notified in the Official Gazette and accordingly those have the force of law and since the writ petitioners filed the instant writ petition challenging Annexure D(l) and D(2), the writ petition is maintainable and in support of his contention………………… (20)
Zainal Abedin, Deputy Attorney General, instructed by B. Hossain, Advocate-on-Record……………..For the Appellants
Mahmudul Islam, Senior Advocate (Abdul Quayum, Senior Advocate and Probir Neogi,
Advocate appeared with him), instructed by Md. Aftab Hossain, Advocate-on-Record………… For the Respondent.
JUDGMENT
1. Syed J.R. Mudassir Husain CJ – This appeal by leave arises out of the judgment and
order dated 5th November, 2003 passed by a Division Bench of the High Court Division in Writ Petition No. 2256 of 2002 making the Rule absolute.
2. The respondent, Md. Shamsul Huq filed the above writ petition, stating, interalia, that on being successful in the competitive examination he was appointed to the post of Typist Cum-Lower Division Assistant (hereinafter referred to as L.D.A.) in the Supreme Court of Bangladesh on 18.3.1985; that he was made permanent by order dated 04.07.2000 with
effect from 18.3.1987; that subsequently after qualifying in another competitive examination in Shorthand and Typing, he was promoted to the post of Personal Assistant Cum-Stenographer on 30.10.1988 and was placed in the New National Pay Scale of Tk.400-25525-EB-30-825/-; that till 1991 he served as Personal Assistant -Cum-Stenographer of a Judge of the Supreme Court and his salary was in the Scale of Tk.850-1700/-. The further, case of the respondent was that the designation as well as the nature of job was exactly the same as those of the employees bearing the same designation in the Secretariat of the Ministry of the Government of Bangladesh; that 01.07.1991 under the New National Pay Scale the respondent and other employees of his cadre and grade in the Supreme Court of Bangladesh and those in the Ministry were given pay scale of Tk. 1475-3150/- with effect from 01.06.1991 and the scale of pay was enhanced both of the employees of the Supreme Court and those in the Secretariat to Tk.2250/- with effect from 1.6.1997.
3. The respondent’s further case was that by gazette notification dated 17.5.78 the
Government allowed special allowance to the P. A.-Cum-Stenographer of the Secretaries and Joint Secretaries of the Ministry but the same was denied to the P.A.-Cum-Stenographers serving in the Supreme Court of Bangladesh and thus being discriminated the Supreme Court employees of the same grade and status demanded the same pay and facilities on the ground that they should get higher salary than those in the Ministry because the work they do is much more harder, arduous and voluminous than the work performed by the P.A.Cum-Stenographers to the Secretaries and Joint Secretaries; earlier Mir Mohammad Moinuddin a P.A.-Cum-Stenographer of the Supreme Court filed Writ Petition No. 1922 of 1990 challenging the legality of the order of the Government refusing to give him and others the same salary and facilities (special allowance) and the Rule was made absolute by judgment and order dated 6.2.1991 wherein it was held that the P.A.-Cum-Stenographers of the Judges of the Supreme Court in the like manner as those of the P.A.Cum-Stenographers of the Secretary and Join Secretary have to perform duties similar in nature and there should not be any discrimination in matters of granting such Special Allowances to the petitioner; by notification dated 1.3.1995 (Annexure-D of the writ Petition) the Stenographers working in the Bangladesh Secretariat were re-designated as Personal Officer (P.O.) was made Class-II Gazetted post and their pay scale was fixed at Tk. 1725-3725/- on condition that the designation, responsibility, facility, scale of pay, scope of work and status shall remain unchanged/unaltered; by notification dated 1.6.1999 the scale of pay of the Personal Officers was enhanced to their counter part in the Secretariat, the P.A.-Cum-Stenographers of the High Court Division of the Supreme Court of Bangladesh on 20.11.1997 made a representation to the Registrar, the Chief Executive of the Supreme Court, for being treated at par with the P.A.-Cum-
Stenographers of Bangladesh Secretariat (redesignated as Personal Officer); the above
representation was forwarded to the Ministry of Law, Justice and Parliamentary affairs for necessary action which in turn was sent to the Ministry of Establishment but by communication dated 5.7.1998 made to the Registrar of the Supreme Court of Bangladesh the Ministry of Establishment refused to accede to the prayer of the PA.-Cum Stenographers of the Supreme Court of Bangladesh; the Deputy Registrar of the Supreme Court of Bangladesh once again forwarded a representation of the P.A.-Cum Stenographers to the Secretary, Ministry of Law, Justice and Parliamentary Affairs requesting him to grant them the status and scale of pay granted to the P.A.-Cum Stenographers working in the Secretariat which scale in the meantime was enhanced to Tk. 3400-6625/- and the Ministry of Law then referred the matter to the Ministry of Establishment but the said Ministry once again turned down the proposal sent from the Supreme Court vide Memo dated 14.03.2000.
4. The writ-respondent being thus aggrieved filed instant Writ Petition in question challenging memo dated 05-07-1998 and 14-032003 (Annexure E and F in the writ petition).
5. The appellant-writ-respondent contested the above writ petition by filing affidavit-inopposition denying the claim of the respondent and stating, interalia, that the writ petition is not maintainable inasmuch as the petitioner being a Government Servant, the only forum available to him is the Administrative Tribunal; persons working in different organization may have the same designation but their promotion, salary, scale of pay etc. may not necessarily have to be the same and those are guided by their recruitment rule and the service condition of the employees working in the Secretariat are not applicable to the petitioner and that the post of personal officer is the fidder post of Assistant Secretary which is applicable only to the employees working in the Secretariat and thus the same benefit cannot be extended to the petitioner.
6. The High Court Division upon hearing the parties made the Rule absolute by the
impugned judgment and order as aforesaid holding that the respondent/P.A.-Cum-
Stenographers attached to the Judges of the Supreme Court of Bangladesh have been discriminated’ in the matters relating to scale of pay, status and order financial facilities
enjoyed by their counterpart in the Secretariat.
7. Being aggrieved by the impugned judgment of the High Court Division dated 05-11-2003, the appellant filed civil petition for leave to Appeal No.841 of 2004 and upon hearing the parties, this Division granted leave to appeal on the following terms:
” Mr. A.J. Mohammad Ali, the learned Additional Attorney General appearing on behalf of the petitioners, submits that the High Court Division erred in law in entertaining the writ petition inasmuch as the petitioner being a government servant the only forum available to him is the Administrative Tribunal; that the service conditions of the employees of the Secretariat are not applicable to the petitioner; and each and every employees of the Government being guided by service conditions as provided in the Rules the benefit permissible to the employees of the Secretariat is not applicable to the
petitioner and thus the High Court Division erred in law in making the absolute.”
8. Mr. Zainal Abedin, the leaned Deputy Attorney General appearing for the appellants,
has taken us through the relevant records of the case and the impugned judgment of the High Court Division and therefore, submitted that the respondent a government servant and his service condition as laid down in the recruitment rules being invoked, the only forum available to him is in the Administrative Tribunal under Article 117 of the Constitution as such the learned Judges of the High Court Division committed an error
of law in entertaining the respondent’s writ petition under Article 102(1) of the Constitution. In elaborating his above submission, the learned Deputy Attorney General
contends that the people working in different organizations may have the same designation but their promotion, salary and the scale of pay etc. being their service condition may not necessarily have to be the same and as such the service conditions of the concerned employees working in the Secretariat are different from those working in the Supreme Court of Bangladesh. In such view of the matter, it is argued by the learned Deputy Attorney General that the learned Judges of the High Court Division have fallen in error in granting reliefs to the respondent by way of making the rule absolute in the writ petition, which itself was not maintainable.
9. Mr. Mahmudul Islam, the learned Senior Counsel appearing for the respondent (writ
petitioner), on the other hand, contended that by notification on 13-09-1995 designation of the Stenographers of Bangladesh Secretariat changed to Personal Officer (P.O.) and another notification dated 28-04-1997 the post of Personal Officer (P.O.) was made Class-II Gazetted post and pay scale was changed to Tk. 1725-3725/ and in the said Notification it was stated that the scope of the work and responsibility of the holder of the post will remain as before and the pay scale was again revised and ultimately by Notification dated 01-06-1999 the pay was again enhanced to Tk. 3400-6625/- those notification were the Annexure-D,D(1) and D(2) respectively in the writ petition.
10. Mr. Mahmudul Islam further argued that those notifications are the orders passed by
the order of the Persident under Section 3 of the Services (Re-organisation and Conditions) Act, XXXII of 1975 and by those notification the Personal Officers of the Secretariat have been given preferential treatment which has been denied to the respondent and as such in view if the decisions in the case of Mujibur Rahman (Md) vs. Government of Bangladesh and others reported in 44 DLR (AD) 111 and in the case of Bangladesh, represented by the Secretary, Ministry of Establishment vs. Government of Bangladesh, represented by the Secretary, Ministry of Establishment vs. Shafiuddin Ahmed and 2 others reported in 50 DLR (AD) 27. In such view of the matter, Mr.
Mahudul Islam empathetically argued that the respondent’s writ petition is maintainable
inasmuch as those Notification have been made under a statute having the force of law
and the Administrative Tribunal does not have jurisdiction in respect of disputed matter herein.
11. Mr. Islam has next argued that the appellant used to perform similar functions and
duties as performed by the Personal Officers of the Secretariat and are similarly situated
with the Personal Officers of the Secretariat and he cannot be differently treated and the
High Court Division rightly found discrimination against the petitioner.
12. We have perused the records and the impugned judgment of the High Court
Division and considered the submissions of the learned lawyers of both sides. The argument of Mr. Islam is that Annexure-D, D(l) and D(2) as aforesaid having been issued by order of the President and the order contained therein have the force of law and we find substance in his above argument and as such we are of the view that the respondent and Personal Officers of the Secretariat having been similarly situated have been discriminated and can not be treated differently and is repugnant to the equality doctrine and under like circumstances and conditions should be treated alike both in their rights and privilege.
13. From the above discussion and the facts and circumstances of the case, we find that the refusal of the prayer of the respondent regarding his status and privileges by the impugned annexures ‘E’ and ‘F’ of the writ petition have been rightly declared by High Court Division to have been issued illegally and without lawful authority.
14. On perusal of the impugned judgment of the High Court Division we find that the
learned Judges of High Court Division meticulously considered the facts and circumstances and materials on record and came to the finding as under: “Regard being had to the facts and circumstances of the case, materials on record and submissions of the learned Counsel, we are in not doubt that the petitioner i.e. P.A.-Cum-Stenographers attached to the Judges of the Supreme Court of Bangladesh have been discriminated
against in matters scale of pay status and other financial facilities enjoyed by their counter part in the Secretariat and having found substance and force in the arguments
advanced by the learned Counsel for the petitioner, the Rule is made absolute without
however any order as to costs. Annexures E and F dated 05-07-1998 and 1403-2000 respectively are hereby declared to have been issued without lawful authority and
to be of no legal effect as those are discriminatory arbitrary and irrational and as such
violative of Article 27 and 29 of the Constitution. The respondents are therefore directed to extend the same benefits to the P.A.-Cum-Stenographers attached to the Judges of the
Supreme Court of Bangladesh i.e. Scale of Pay status and other financial benefits enjoyed
by their counter parts working in the Secretariat/Ministries within 3 (three) from the date of receipt of this judgment.” In the above backdrop of our discussion, we are fully in agreement with the above findings and decisions of the High Court Division and we find no merit in the appeal for our interference. In the result, the appeal is dismissed without any order as to costs.
15. Md. Ruhul Amin, J :-1 had the advantage of reading the judgment of the learned Chief Justice and the addition made by my brother, Tafazzul Islam on the point of maintainability of the writ petition. I agree with the judgment of the learned Chief Justice and the view expressed, in the background of the facts and circumstances in which writ petition was filed, by my brother, Tafazzul Islam on the point of maintainability.
16. M.M. Ruhul Amin, J : I have gone through the judgment proposed to be delivered
by the learned Chief Justice and my learned brother Md. Tafazzul Islam, J. I agree
that the appeal should be dismissed.
17. Md. Tafazzul Islam, J : I agree with the conclusion arrived at by the learned Chief
Justice dismissing the appeal but regarding maintainability of the writ petition as raised
by the learned Deputy Attorney General I intend to add the following:
18. In the case Mujibur Rahman vs. Government of Bangladesh and others reported
in 44 DLR (AD) 111, on which the learned Deputy Attorney General relied for his submission regarding maintainability of the writ petition, the appellant of Civil Appeal No. 35 of 1987 contended that since he challenged the order of compulsory retirement on the round of violation of fundamental rights guaranteed under Articles 27 and 29 of the
Constitution the High Court Division ought to have exercised its Jurisdiction under clause
(1) of Article 102. But the Appellate Division found that neither such case of violation of
any fundamental rights was made out before the High Court Division nor any certificates
was given in this regard by the High Court Division to the above effect. Before the
Appellate Division the learned Additional Attorney General referred to the case of
Serajul Islam vs. The Director General of Food, 42 DLR(AD) 199 wherein it was
observed as follows:”We do not think so, for, if the petitioner can establish a case of double jeopardy on facts he can invoke the law under which he is proceeded against which cannot be opposed to fundamental rights and the Tribunal is competent to enforce the statute. The matter arising from a departmental proceeding relating to terms and conditions of service of the petitioner the High Court Division rightly found a bar to its jurisdiction under Article 102 of the Constitution.” Further the learned Additional Attorney General also referred to Article 44(1) of the Constitution that guarantees the right to move the High Court in accordance with clause (1) of Article 102 of the enforcement of the rights conferred by Part III of the Constitution. The Appellate Division considering the above submissions held that the writ petitions are not maintainable observing as follows: “Within its Jurisdiction the Tribunal can strike down an order for violation of principles of natural justice as well as for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising of sub-clause (a), but such tribunals cannot, like the Indian
Administrative Tribunals in exercise of a more comprehensive jurisdiction under Article 323A (see SP Sampath Kumar vs. Union of India, AIR 1937 SC 386 (.Para 16) and JB Chopra vs. Union of India AIR 1987 SC 357 (Para 2), strike down any law or rule on the ground of its constitutionality. A person in the service of the Republic who intends to invoke fundamental right for challenging the vires of a law will seek his remedy under
Article 102(1), but in all other cases he will be required to seek remedy under Article 117(2)” “an aggrieved person may, out of desperation or just for taking a sportive chance
in the summary writ jurisdiction, allege contravention of some fundamental right which may turn out to be frivolous or vexatious or not event remotely attracted in his case. The Court its, however, to be on guard so the great value of the right given under Article 102(1) is not frittered away or misused as a substituted for more appropriate remedy available for an unlawful action involving no infringement of any fundamental right.”
19. However, Mr. Mahmudul Islam, the learned counsel for the writ petitioner/respondent
distinguished 44 DLR AD 111 submitting that to give effect to Article 163 of the
Constitution, Services (Re-organization an Condition) Act 1975 was enacted and section5
thereof empowered the Government, by order notified in the official gazette, to prescribe
united grade and scale pay etc. and accordingly Annexures D(l) and D(2) were issued on the “Order of the President” and were also notified in the Official Gazette and accordingly those have the force of law and since the writ petitioners filed the instant writ
petition challenging Annexure D(l) and D(2), the writ petition is maintainable and in support of his contention Mr. Islam referred to the case of Bangladesh-vs-Shafiuddin Ahmed reported 50 DLR (AD)27.
20. Section of Services (Re-Organization and Conditions) Act 1975 Provides as follows :
“The Government may, with a view to bringing uniformity in the grades and scales of pay of different persons or classes of persons employed in the service of the Republic or of any public body or nationalized enterprise, by order notified in the official Gazette, prescribe grades and scales of pay and other terms and conditions of service for all or any
such persons of classes of persons.”
21. As it appears Annexures D(l) dated 28.4.1997 and Annesure D(2) dated 1.6.1997
were issued in terms section-5 above and further those, having been issued by “Order of
the President” and were duly notified in the Official Gazette, have the force of law.
Further Article 152 of the Constitution provide that “law” means any Act, ordinance,
order, rule, regulation, bye-law, notification or other legal instrument, and any custom or
usage, having the force of law in Bangladesh.
22. As it appears in 50 DLR (Ad) 27 cited by Mr. Islam, the writ petitioners challenged the constitutionality of the constitution of various Committees through which promotions to the posts of Joint Secretary and Deputy Secretary were made on two grounds, the first being that the formation of Council Committee for the purpose of selecting candidates for promotion of the posts of Joint Secretary vied Annexure “K” to Writ Petition No. 2738 of 1992 shows that by Notification dated 10.10.91 the Secretary, Cabinet Secretariat reconstituted the Council Committee and Appendix Kha thereto describes the composition of the Committee consisting of eight Ministers with the Minister of Education as convener and three high officials as Assistants to the Committee and the area of functions of the Committee as shown Para (Ga) was (1) to consider the promotion and supersession of officers of the posts of Joint secretary and above and (2) to consider the proposals processed through the Superior Selection Board for promotion to the posts of Joint Secretary and above and the second being that the formation of the Committee for considering the case of promotion to the post of Deputy Secretary Vide Notification dated 4.12.91 Annexure. “A” to Writ Petition No. 3193 of 1992 shows that in terms of sub-paras (Ka) and (Kha) of the first paragraph a five member Committee was formed with the Minister of State, Ministry of Establishment as Chairman and high officials of the Government as Members to make recommendations for promotion to the post of Deputy Secretary only “after taking interview” and that both the above notification issued by the Secretary Ministry of Establishment under “Orders of the President” are ultra vires of the Constitution. The High Court Division made the Rules absolute. Being aggrieved the Government filed appeal and in support of the appeal the learned attorney General submitted that the Special Bench of the High Court Division not having struck down any law or rule the other matters involved in the writ petitions relate to the terms and conditions of service of the writ petitioners and therefore the Administrative Tribunal has exclusive jurisdiction to decide those matters under Article 117 of the Constitution. The Appellate Division held that the above submission of the learned Attorney General on maintainability is not correct as the Special Bench of the High Court Division has struck down sub paras (1) and (2) of para (Ga) of Notification dated 10.10.91 and sub paras (ka) and (Kha) of Notification dated 4.12.91 being ultra virse to Articles 27 and 29 of the Constitution and also declared the procedure of selection of officers adopted by the Committees to be without lawful authority and of no legal effect. The Appellate Division further found that these notifications have the force of law, the impugned notifications and the procedure adopted by the two Committees were very much a part of the executive order governing promotion to the posts of Joint Secretary and Deputy Secretary and the Special Bench of the High Court Division struck down only those parts thereof which are in violation of Articles 27 and 29 of the Constitution; the writ petitioners also invoked Article 44 of the Constitution and all the writ petitions were filed for enforcement of fundamental rights as contained in Articles 27, 29 (1) and 31 of the Constitution and were marked as applications under Article 102(1) read with Article 44 of the Constitutions; in Mujibur Rahman case, 44 DLR (AD) 111 Article 44(1) of the Constitution was brought to the notice of this Court by the government respondents themselves, as is evident from paragraph 47 of the above report, and the jurisdiction of an Administrative Tribunal to strike down an order for infringement of fundamental rights or any other law (but not the jurisdiction to strike down any law or rule on the ground of its constitutionality) was conceded (vide paragraph 48 of the report); the right to move the High Court Division under Article 102 (1) for enforcement of the fundamental rights is a fundamental right itself and is guaranteed by Article 102(1) and that has been recognised by the separate concurring judgment in paragraph 77 of the report but the right of judicial review under Article 102 (2) is neither a fundamental right nor a guaranteed one and this power was never conferred upon the Tribunals under Article 117 of the Constitution (paragraph 77 of the report); the supplemental, as opposed to substitutional role of the Tribunals constituted under Article 117 of the Constitution was already-conceded and permitted to the Tribunals in Mujibur Rahman case and on power of judicial review under Article 102(2) was conceded to the Tribunals in the case and that since the writ petitioners’ relief could not have been obtained by a supplemental role performed by the Tribunals the writ petitions have rightly invoked the jurisdiction of the High Court Division under Article 102(1) of the Constitution and so the writ petitions were fully maintainable.
23. As it appears the principle as laid down in 50 DLR(AD) 27, in the facts and circumstances, are applicable in the present appeal as the writ petitioners challenged the orders as contained in Annexures D(l) and D(2), which were issued under section-5 of the Service (Re-Organization and Conditions) Act 1975 and have the effect of law. Accordingly the writ petition is maintainable.
Ed.
Source: IV ADC (2007), 130