The Services (Re-Organisation and Conditions) Act, 1975

 

The Services
(Re-Organisation and Conditions) Act, 1975

 

The Services (Re-Organisation and Conditions) Act, 1975 (Act No.
XXXII of 1975) Section-5 Read with The Services (Grades, Pay and Allowances)
Order, 1977 Section-5 Read with The Surplus Public Servants Absorption
Ordinance, 1985 (No. XXJV of 1985)

 

Sections-5 & 6

Whether in a
graded service, seniority counts from the date of entry in a grade

The
appellant joined the President’s Secretariat in Islamabad on 29.9.70 as an
Upper Division Assistant. On return to Bangladesh he was taken in the Ministry
of Foreign Affairs in the same post carrying a scale of pay of Tk. 310-670/-
which was in Grade-VIl of National Scale of Pay. His service was declared as
surplus by the Ministry of Foreign Affairs by a memo date 23.6.76 and his name
was forwarded to the Ministry of Establishment for absorption. By an order
dated 20.11.76 the Ministry of Foreign Affairs asked the appellant to join the
Taxes Department as Inspector of Taxes. He was released from the Ministry of
Foreign Affairs on 22.11.76 and on the same day he was absorbed as Inspector of
Taxes in the office of the Income Tax Commissioner, Dhaka (North Zone) in
Central Salary Circle-2 in the same scale of pay as above. At the time of
filing the petition before the Administrative Tribunal the appellant was
serving in the Contractors’ Circle-3 at Dhaka (East Zone). At the time of
preparation of the List of Seniority the appellant found that his period of
service was counted not from the date of his joining the service on 29.9.70,
but from the date of joining as Inspector of Taxes on 22.11.76. Appellants
prayer for a direction to reckon the period from 29.9.70 for the purpose of counting
his seniority.

Held: Establishment Division issued Memo No. ED(R-1 1) S-59/77-25 (500)
dated 20.3.79. This memo is the sheet-anchor of the appellant’s case. It is his
case that in 1976 the post of Inspector of Taxes and an Upper Division
Assistant were equivalent posts because they carried the same grade and scale
of pay and there was no other yardstick of measurement of equivalence between a
minister rial post and an executive post at that time.

The
appellant is right. Subject to the implementation of the recommendations of the
National Pay Commission by an order notified in the Official Gazette under
section 5 of Act No. XXXII of 1975, if the appellant’s seniority was fixed at
any time between 22.11.76 (when he joined the Taxes Department as Inspector of
Taxes) and 30.6.77 (When the New National Grade and Scale of Pay was not yet
introduced), he could have reasonably claimed the counting of his past service
for determining his seniority. The respondents could not then have been heard
to say that the post of Inspector and the post of Upper Division Assistant are
higher or lower posts, entailing higher or lower degrees of responsibility. The
Inspector of Taxes and Upper Division Assistant being equivalent posts both for
purposes of grade and scale of pay the appellant was entitled from 22.11.76 to
30.6.77 to count his previous service for fixation of seniority, in terms of
the Establishment Division’s Memo dated 20.3.79. But both the appellant and the
respondents missed the essential point in the entire litigation, namely, that
on and from 1.7.77 the amalgamation of Upper Division Assistant and Inspector
of Taxes into the same grade and scale of pay was done away with, making it a
thing of the past, and obliterated event, leaving no trace of any vested right
that may have accrued upto 30.6.77. From 1.7.77 an Upper Division Assistant and
Inspector of Taxes are not equivalent posts, either in respect of grade or in
respect of scale of pay. The appellant will not be considered to have been
absorbed in an equivalent post. Yes, he was absorbed in an equivalent post in
1976, but the equivalence “ceased to exist” from 1.7.77. Because of the
respondents’ inability to bring into sharp focus this vital legal aspect of the
matter the judgment of the Appellate Tribunal has made a foray into redundant
considerations, like the distinction between the duties of an Upper Division
Assistant and an Inspector of Taxes. The basic legal position is that from
1.7.77 the appellant remains absorbed in a post different in grade and scale of
pay from the post of Upper Division Assistant and therefore with no assistance
from the Establishment Division Memo dated 20.3.79 and the various other
Government Memos brought to our notice by Mr. Abdur Rab Chowdhury can the
appellant in any way be permitted to count his previous service from 29.9,70 to
2 1.11.76 for fixation of his seniority. [Para-13]

Md AFB Jahan
Mia Vs. National Board of Revenue & Ors. 5 BLT (AD)-121.