AFB Jahan Mia (Md) Vs. Chairman, National Board of Revenue and others, 1997

Case No: Civil Appeal No 21 of 1993

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: AW Bhuiyan,Abdur Rab Choudhury,,

Citation: 49 DLR (AD) (1997) 122

Case Year: 1996

Appellant: AFB Jahan Mia (Md)

Respondent: Chairman, National Board of Revenue and others

Subject: Administrative Law,

Delivery Date: 1996-12-08

AFB Jahan Mia (Md)

Vs.

Chairman, National Board of Revenue and others, 1997,

49 DLR (AD) (1997) 122

 


Supreme Court

Appellate Division

(Civil)


Present:

ATM Afzal CJ

Mustafa Kamal J

Latifur Rahman J

Md Abdur Rouf J

BB Roy Choudhury

 

AFB Jahan Mia (Md)…………Appellant

Vs.

Chairman, National Board of Revenue and others…………………………. Respondents

 

Judgment

December 8th, 1996.

 

Surplus Public Servants Absorption Ordinance (Ordinance XXIV of 1985)

Section 6

The past service can only be counted on absorption in equivalent post towards seniority. When the petitioner appellant was absorbed in a higher post i.e. the post of Inspector of taxes he is not entitled to count his past service of Upper Division Assistant towards his seniority in the post of Inspector of taxes.

 

Cases Referred to-

Chairman, T&T Board vs. Mostafizur Rahman (Civil Appeal Nos. 158 and 159 of 1979) and AFM Badiur Rahman vs. Shamsuzzaman and ors. (Civil petition for Leave to Appeal No 255 of 1991).

Lawyers Involved:

Abdur Rab Choudhury, Advocate instructed by Md Aftab Hossain, Advocate-on-Record —for the Appellant

Abdul Wadud Bhuiyan, Additional Attorney General, instructed by Shamsul Haque Siddique Advocate-on-Record—For the Respondents


Civil Appeal No 21 of 1993.

(From the Judgment and order dated 24-6-90 passed by the Administrative Appellate Tribunal, Dhaka in Administrative Appeal No. 16 of 1989).

 

Judgment:

Mustafa Kamal J: This appeal by leave by the petitioner-appellant is from the judgment and order of the Administrative Appellate Tribunal dated 24-6-90 in Appeal No. 16 of 1989 allowing appeal and setting aside the judgment and order date 28-12-88 passed by the Administrative Tribunal  Dhaka in Tribunal Case No. 90 of 1987 allowing the appellant’s application in part, directing the respondents to reckon the appellant’s period service as Upper Division Assistant from 29.9.70 for the purpose of counting his seniority in the post of Inspector of Taxes,

2. The appellant joined the Presidents 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 Taka 310.00-670.00 which was in Grade-VII of National Scale of Pay. His service was declared as surplus by the Ministry of Foreign Affairs by a memo dated 23.6.76 and his name was forwarded to the Ministry 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 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 serving in the Contractors’ Circle-3 at Dhaka (East Zone). At the time of preparation of the List Seniority the appellant found that his period service was counted not from the date of his of the service on 29 9-70 but from the date of joining as Inspector of taxes on 22-11-76. The appellant sent a representation to the Commissioner of Taxes, Dhaka (East Zone) on 10-3-86 and two successive representations to the Chairman National Board of Revenue on 21-11-85 and 17-4-86. After an exchange of opinion between the Commissioner of Taxes, the Chairman, National Board of Revenue and the Ministry of Establishment, all the three agreed that the appellant will count his seniority in his present service from 22-11-76 i.e., the date he joined the post of Inspector of Taxes and that there is no scope of counting his previous service for seniority. The appellant came to know of the said decision by a Memo. Dated 12-11-86 from the Commissioner of Taxes, Dhaka (East Zone). The appellant thereafter filed the instant petition before the Administrative Tribunal with a prayer for a direction to reckon the period from 29-9-70 for the purpose of counting his seniority, as also for some other reliefs.

3. The Ministry of Establishment, opposite party No. 4 in the appellant’s petition, did not file any written statement and did not contest the case. A written statement was filed by opposite party No. 1 to the application namely the Commissioner of Taxes. Dhaka (East-Zone) and opposite party No. 2, the Chairman, National Board of revenue. Their case was that in the National Scale of Pay introduced on and from 1-7-73, an Upper Division Assistant and an Inspector of Taxes carried the same scale of pay (Taka 310.00-670.00) and that is the reason why the appellant was absorbed as an Inspector of Taxes, but previous to 1-7-73 an Upper Division Assistant in the then Central Government used to draw a pay in, the scale of Taka 135.00—315.00, whereas the scale of pay of Inspector of Taxes, was Taka 185.00-450.00. From 1-7-77 the post of Inspector of Taxes carried a scale of pay of Taka 425.00-1035.00 and the post of Upper Division Assistant carried a scale of pay Taka 370.00-745.00 and the two posts were placed in different Grades. The history of these two posts shows that they are not of equal class. The post of inspector of Taxes is a higher post than that of Upper Division Assistant. It is for this reason that it was not possible to count the previous service of the appellant in counting his seniority. If he was absorbed as an Upper Division Assistant in the Taxes Department then his previous service could have been counted.

4. While the Administrative Tribunal agreed with the contention of the appellant that the period of his service before his absorption as Inspector of Taxes ought to be counted for the purpose of determining his seniority and thus allowed his application in part, the Administrative Appellate Tribunal agreed in full with the submissions of the respondents and held that the two posts of Upper Division Assistant and inspector of Taxes being not of the same status, one entailing  ministerial functions and the other executive the appellant is not entitled to count his previous service for determination of seniority.

5. Leave was granted to consider the appellant’s submission that the impugned judgment of the Appellant Tribunal was not signed by all the three Members of the Tribunal under section 5(2) of the Administrative Tribunals Act, 1980 (Act No. VII of 1981) and hence it is liable to be set aside. Leave was also granted to consider the appellant’s submission that the Appellate Tribunal failed to take into consideration the provisions of the Services (Re-organisation and Conditions) Act, 1975 (Act No XXXII of 1975) by which graded service was introduced n Bangladesh with effect from July 1, 1973 and that in a graded service, seniority, counts from the date of entry in a grade.

6. Mr. Abdur Rab Chowdhury, learned Counsel for the appellant, has given up the first contention on which leave has been granted and has preferred to concentrate on the second point of leave. He argued at length on the concept of grade, scale of pay, past service, cadre rules, counting of seniority and a number of other matters and reinforced his arguments by copious references to various Government memos. e.g. Ministry of Cabinet Affairs, Establishment Division Memos. dated  7-8-73, 13-8-73, 11-3-74, 4-6- 76, 14-10-84 and 7-4-87, Ministry of Finance Memos. dated 15 9-79 and 1-1-84, the meaning of the word “equivalent” from Law Lexicon, the Bangladesh Civil Service Seniority Rules 1983, and two unreported decisions of this Division in the case of Chairman, T&T Board vs Mostafizur Rahman (Civil Appeal Nos  158 and 159 of 1979) and AFM Badiur Rahman vs Shamsuzzaman and ors (Civil petition for Leave to Appeal No 255 of 1991). He submits that at the  very least the appellant is entitled to count his seniority from 1-7-73.

7. Mr. Abdul Wadud Bhuiyan, learned Additional Attorney General appearing for the respondents, elaborated ‘the respondents’, submissions by reading out the written statement which has also been reiterated in the Concise Statement filed on behalf of the respondents. He has also placed his reliance on the case of Vice-Chancellor, LN Mithila University vs. Dayanand Jha, (1986)3 SCC 7.

8. After having listened to the painstaking submissions of both sides on an elaborate canvas, we are relieved to find that the issue is indeed a simple one which has been missed by the appellant and the respondents alike and consequently by both the Tribunals below.

9. We shall quote to begin with Article 136 of the Constitution which is as follows:

  “136. Provision may be made by law for the reorganization of the service of the Republic by the creation, amalgamation or unification of services and such law may vary or revoke any condition of service of a person employed in the service of the Republic.”

10. To provide for the reorganization of the services of the Republic and of public bodies and nationalised enterprises and for prescribing unified grades and scales of pay and other terms and conditions of service for persons employed in such services, the Services (Re-organisation and Conditions) Act, 1975 (Act No. XXXII of 1975) was promulgated with retrospective effect from 1-7-73 and it will be convenient here to reproduce sections 3-7 of the said Act as hereunder:

       “3. Act to override all other laws, etc.-The provisions of this Act or any order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law or in any rule, regulation, by-law, agreement, award, settlement or term of condition of services.

         4. Power of Government to reorganize services of the Republic and of public bodies and nationalised enterprises- The Government may, by order notified in the official Gazette, reorganize the service of the Republic or of any public body or nationalised enterprise and for that purpose create new, services or amalgamate or unify existing services.

          5. Power of Government to prescribe unified grades and scales of pay, etc.—

        (1) 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 nationalised 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 or classes of persons.

        (2) No persons whose grade or scale of pay is prescribed under sub-section (1) shall receive and no person shall allow such person, any benefit of a grade or scale of pay which is higher than the grade or scale of pay prescribed for him.

          6. Retrospective effect to order.—

        (1) An order under section 4 or 5 may be made so as to be retrospective to any date not earlier than the date of commencement of this Act.

          (2) Nothing in this section shall have the effect of creating any offence retrospectively.

           7. Variation and revocation of condition of service permitted.—An order under section 4 or 5 may vary or revoke any condition of service of a person employed in the service of the Republic or of any public body or nationalised enterprise, and no such person shall be entitled to any compensation for such variation or revocation of any condition of his service to his disadvantage.”

11. Following receipt of recommendation the Administrative and Service Reorganisation Committee and the National pay Commission, the Government by Memo No. MF(IC)-2-73-1 dated 7-9-73 announced that they decided to introduce four National Pay Scales from Grades X-VII (Out of 10 recommended) from 1-7-73 and for that purpose an Expert Committee Implementation Cell was set up. (See the case of SM Massod Al-Mamun and other vs Bangladesh, 29 DLR 393. Only 10 Grades were recommended by the National Pay Commission within these grades various posts previously carrying different scales of pay and entitling higher or lower qualities of functions were amalgamated into one grade. Thus to illustrate from the respondents’ written statement, the three following posts carrying three different scales of pay and entailing different kinds of functions were all amalgamated in the National Grade and were given to enjoy the same National Scale of pay at Taka 310.00—670.00.

 

Post   Scale of pay prior to 1-7-73

1. Inspector of Taxes   Taka 185—450

2. Supervisor  Taka 185—450 +35

(Head Assistant)   Taka 185—400 SP 

3. Upper Division Assistant……………….. Taka 135—315”


12. The National Grade and scale of pay, limited to 10 Grades only created anomalies. It does not appear either that by formally passing an order in Bangladesh Gazette, the Government implemented the recommendation of the National Pay Commission in exercise of its power under section 5 of Act No. XXXII of 1975. While facing difficulties in the implementation of the recommendations of the national Pay Commission, the Government constituted a new Pay and Service Commission to recommend service and pay structure. It is only following the recommendation of the pay and Service Commission that the Government in exercise of the powers conferred by section 5 of Act No. XXXII of 1975 passed The Services (Grades, Pay and Allowances) Order, 1977 on 20-12-77, giving the said order both commencing day and a retrospective effect from the 1st July, 1977. This order was published in the Bangladesh Gazette, Extraordinary on 20-12-77. Section 3 of the said Order, 1977 which was not noticed by the appellant, the respondents and the Tribunals below provided as follows:

         “3. New National Grades and scales of pay (1) on the commencing day all the grades and scales of pay in force, immediately before that day, in respect of the posts mentioned in the Annexure shall cease to exist and on and from that day there shall come into force the following New National Grades and Scales of pay, namely……..”

13. Then I-XXI New National Grades and Scales of pay were mentioned.

14. In the Annexure that followed an Upper Division Assistant who was previously in Grade-VII of National Grade and Scale of Pay carrying a scale of pay of Taka 310.00—670.00 was now placed in Grade-XV carrying a scale of pay of Taka 370.00—745.00 in the New National Grade and Scale of Pay: But an Inspector of Taxes who was placed in the same grade-VU and same scale of pay of Taka 310.00—670.00 in the National Grade and Scale of Pay was given a higher grade, i.e. Grade-XIV and a higher scale o pay at Taka 400.00—825.00 in the New National Grade and Scale of Pay. Obviously it is this New National Grade and Scale of Pay which will determine the appellant’s entitlement to counting his previous service for the purpose of determining his seniority, because he cannot under the new dispensation refer to or claim any right arising from the National Grade and Scale of Pay introduced on 1-7-73 which “ceased to exist” on and from 1-7-77. Section 7 of Act No. XXXII of 1975 authorises the Government to vary or revoke any condition of service to the appellant’s disadvantage if an order is passed under section 4 or 5 thereof. The appellant therefore lost all the privileges and rights that he enjoyed under the National Grade and Scale of Pay introduced from 1-7-73. From 1-7-77 his position was absolutely different.

15. The absorption of surplus public servants was made from time to time as per Government instructions and decisions but a statute, namely, The Surplus Public Servants Absorption Ordinance, 1985 (Ordinance No. XXIV of 1985) was promulgated as late as on 20th May, 1985 giving it a retrospective effect from the 16th December, 1971 except section 3 thereof. Sections 5 and 6 of the said Ordinance, which are relevant, are as follows:

         “5. (1) Absorption of surplus public servants.—(1) A surplus public servant shall, as far as practicable, be absorbed in a post carrying the same scale of pay of the post which he held immediately before becoming surplus had carried:

          Provided that if a surplus public servant cannot be absorbed in any post which carries same of scale of pay, he may be offered a post carrying lower scale of pay, and if he does not accept the offer, he shall be deemed to have been retired from service with effect from the date he rejects the offer or after thirty days from the date of receipt of the offer whichever is earlier.

          (2) A surplus public servant shall not be absorbed in any post unless he is nominated by the Ministry of Establishment:

         Provided that the Ministry of Establishment may authorise a Ministry, Division or a local authority to absorb a surplus public servant in any office under its administrative control.

          (3) For the purpose of sub-section (1), no surplus public servant shall be required to sit for any test or examination or to have any particular qualification or length of service or to be within any particular limit of age.

          (4) Once a surplus public servant is absorbed in a post under sub-section(1), it shall be final and he shall not be entitled to be re-absorbed in any other post.

        6. Fixation of seniority, pay and pension. - 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”.

16. Previous to the promulgation of Ordinance No. XXIV of 1985 the Establishment Division issued memo. No. ED(R-II) S-59/77-25 (500) dated 20-3-79 providing therein the method of absorption of surplus personnel, inter alia, as follows:

          “1. From one Government Department to another.-A surplus person should be allowed to Count his past service in the parent department towards fixation of his seniority, calculation of pay, leave and pension and there should be relaxation of educational qualification and age if he is appointed in the absorbing department to an equivalent post or cadre.”

17. 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 ministerial 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 appellants 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 Nation 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 1 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, an 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 21-11-76 for fixation of his seniority.

For all the above reasons we do not find any ground for interference. The appeal is dismissed without any order as to costs.

Ed.