Director General, BARI and others Vs. Kazi Md. Sadequl Islam and others, 3 LNJ (AD) (2014) 57

Case No: Civil Appeal No. 182 of 2009

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Rafique-ul-Huq,Abdul Wadud Bhuiyan,,

Citation: 3 LNJ (AD) (2014) 57

Case Year: 2014

Appellant: Director General, Bangladesh Agricultural Research Institute and others

Respondent: Kazi Md. Sadequl Islam and others

Subject: Administrative Law,

Delivery Date: 2013-10-08


APPELLATE DIVISION
(CIVIL)
 
Nazmun Ara Sultana, J,
Syed Mahmud Hossain, J,
Muhammad Imman Ali, J.


Judgment on
08.10.2013
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Director General, Bangladesh Agricultural Research Institute and others 
. . . Appellants.
-Versus-
Kazi Md. Sadequl Islam and others
. . . Respondents
 

Constitution of Bangladesh, 1972
Article 102
Sher-e-Bangla Agricultural University Act (XLVI of 2001)
Section 59(2)(Ja)
It cannot be said that the respondent No. 1 was absorbed by the Bangladesh Agricultural Institute or the University and, therefore, not in the service of BARI. It is our view that respondent No.1 was employed by BARI and his status continued as such. He was sent to Bangladesh Agricultural Institute on deputation and served there while holding lien over his original post. The institute later became the Sher-e-Bangla Agricultural University. His exercise of the option to return to his original post in accordance with the Act by which the University came into being is clear evidence of the fact that he was never absorbed as an employee of the Sher-e-Bangla Agricultural University. Accordingly, we hold that the writ-petitioner retained his lien over the post of Senior Assistant Director (Administration) of the BARI. . . . (19)
 
For the Appellants: Mr. Rafique-ul Hoq, Senior Advocate, instructed by Mr. A. S. M. Khalequzzaman, Advocate-on-Record.

For the Respondent No. 1: Mr. Abdul Wadud Bhuiyan, Senior Advocate, instructed by Mrs. Sufia Khatun, Advocate-on-Record.

Respondents Nos. 2-4: Not represented

Civil Appeal No. 182 of  2009
(From the judgment and order dated 20.04.2008 passed by the High Court Division in Writ Petition No. 5063 of 2005)
 
JUDGMENT
Muhammad Imman Ali, J.
 
The Civil Appeal, by leave, is directed against the judgment and order dated 20.04.2008 passed by a Division Bench of the High Court Division in Writ Petition No. 5063 of 2005 making the Rule absolute in part.
 
The facts of the case, in brief, are that the petitioner is a Citizen of Bangladesh by birth and graduated form Dhaka University and obtained his post graduation form the same University in 1982. He was appointed as Assistant Director (Administration) in Bangladesh Agric-ultural Research Institute, Joydebpur, Gazipur (BARI) on 24.10.1990 and was promoted to the post of Senior Assistant Director (Administration) on 15.04.1996. In the meantime, he was transferred on deputation to the Bangladesh Agricultural Institute, Sher-e-Bangla Nagar, Dhaka under BARI in the post as Assistant Director (Senor Scale) (Administration) vide BARI Memo No. ব-১/৯৭/প্রসাশন/১৪৬৪  dated 02.09.1998 and was released on 10.09.1998 vide BARI Memo No. ব-১/৯৭/প্রসাশন/১৬৪১ dated 10.09.1998.
 
The petitioner further stated that according to BARI Service Regulations 1990 (বাংলাদেশ কৃষি গবেষণা ইনস্টিটিঊটের কর্মচারী চাকুরী প্রবিধানমালা, ১৯৯০) the authority cannot issue an order for deputation without the consent of the employee. As the authority has not taken any consent of the petitioner and transferred him on deputation, he applied through proper channel for cancellation of the transfer order or deputation order to the Director General, BARI and also made represe-ntation several times. He also applied, on the ground that, due to his wife’s service at BARI School and his son/daughter being students of the said BARI School, his cause may be considered but without any result. By this time, the Bangladesh Agricultural Institute where the petitioner was deputed was abolished and upgraded as Ser-e-Bangla Agricultural University on 11.9.2001. According to the provision provided in Section 59 (2) (Ja) of Sher-e-Bangla Agricu-ltural University Act, 2001 the petitioner gave option to return to his original post of the parent department BARI also informed his appointing authority that the project would be ended on 30.6.2002 and applied for cancellation of his deputation order. Then the University authority sent the proposal to the Director General of BARI, as the petitioner’s appointing authority, to withdraw the petitioner from University after canceling the order of deputation. The Director General, BARI ultimately cancelled the deputation order by order dated 17.03.2005 (Annexure-M) released the petitioner from the said University.
 
The petitioner accordingly joined in his original post, i.e. Senior Assistant Director (Administration) BARI after taking final release order from the Sher-e-Bangla Agricultural University handing over charge on 17.03.2005. The said joining report of the petitioner was accepted by the Director General BARI and since then he has been serving and performing the functions of a Senior Assistant Director (Administration) and he has been paid salary up to May, 2005
 
Though petitioner’s joining report was accepted by the Director General, BARI, but the Ministry of agriculture vide Memo No. কৃম-৩/চাকুরী (নিয়োগ)৩৭(বারি) ২০০৩/২৫৩ dated 24.4.2005 (Annexure-O) cancelled the joining report of the petitioner with BARI. On receipt of such order, the Director General, BARI by giving cogent reasons vide its letter dated 26.4.2005 (Annexure-P) requested the Secretary, Ministry of agriculture, to withdraw the cancellation order (Annexure-O) stating that as the petitioner is working in BARI and for public interest, his transfer on deputation has been cancelled, but without any result. Then BARI as per order dated 24.4.2005 of the Ministry also cancelled the jointing report of the petitioner vide order dated 12.7.2005.
 
By this time the Ministry of Agriculture appointed Mr. Syed Nakib Muslim, Joint Secretary (extension) of the same Ministry as inquiry officer, vide Memo No. কৃম-৩/চাকুরী (নিয়োগ) ৩৭ (বারি) ২০০৩/২৭৯ dated 05.05.2005 to make an inquiry about the matter of joining of the petitioner to BARI in the post of Senior Assistant Director (Administration). The inquiry officer, upon inquiry, submitted his report dated 19.5.2005:
“ ----- সিদ্ধান্ত যেহেতু, জনাব ইসলাম শেরে বাংলা কৃষি বিশ্ববিদ্যালয়ে সরাসরি নিয়োকৃত বা পদোন্নতি প্রাপ্ত কোন অফিসার নন এবং যেহেতু, বিশ্ববিদ্যালয়ের বিধানানুযায়ী ডেপুটি রেজিস্ট্রার হিসাবে কাজ করার কোন চুক্তিনামা স্বাক্ষর করেননি এবং তিনি এখনও বাংলাদেশ কৃষি গবেষনা ইনস্টিটিউট (বারি) এর অফিসার এবং তাঁর চাকুরী বারির প্রবিধানমালা অনুযায়ী নিয়োগপ্রাপ্ত  এবং এই কারণে জানব ইসলাম তার মূল দপ্তরে প্রত্যাবর্তনের অধিকরার সংরক্ষণ করেন এবং বাংলাদেশ কৃষি গবেষনা ইনস্টিটিউট (বারি) এর বর্তমান বাংলাদেশ কৃষি গবেষনা বিশ্ববিদ্যালয় কর্তৃপক্ষ কর্তৃক অগ্রায়িত আবেদনের পরিপ্রেক্ষিতে মহাপরিচলক, বাংলাদেশ কৃষি গবেষণা ইনষ্টিটিউট (বারি) তার প্রেষণের যে আদেশ বাতিল করেছেন তা যুক্তিসম্মত বলে প্রতীয়মান হচ্ছে।
অতএব, বাংলাদেশ কৃষি গবেষণা ইনস্টিটিউট (বারি) এর সিনিয়র সহকারী পরিচালক (প্রশাসন) পদে কাজী মোঃ সাদেকুল ইসলাম এর ১৭-০৩-২০০৫ খ্রিঃ তারিখের যোগদানের বিষয়ে বাংলাদেশ কৃষি গবেষনা ইনস্টিটিউট (বারি) কর্তৃক গ্রহীত কার্যত্র্রম বিধিসম্মত।”
 
In the backdrop of the above facts and circumstances the petitioner filed Writ Petition No. 5063 of 2005 challenging the Memo dated 24.04.2005 (Annexure-O) issued by the Ministry of Agriculture, and the Memos date 12.07.2005 issued by the Bangladesh Agricultural Research Institute (BARI) Annexures (S1) and (S2) cancelling the joining report of the petitioner and the Memo issued by the BARI giving current charge of the petitioner’s post to another officer Md. Mostafizur Rahman. After preliminary hearing of the Writ Petition the High Court Division issued Rule on 17.07.2005 and pending hearing of the Rule the operation of the impugned order was stayed till disposal of the Rule and respondents were directed to continue to pay the salary to the petitioner.
 
Against the order of stay granted at the time of issuance of the Rule dated 17.07.2005, passed by the High Court Division the respondent Nos. 3, 4 and 5 filed Civil Petition for leave to Appeal No. 941 of 2005 with an application for stay of the said order dated 17.07.2005 before this Division. This Division accordingly fixed the matter for hearing.
 
While the position was such, the petitioner again came to know that the BARI authority already prepared working paper to promote Mr. Md. Mostafizur Rahman Assistant Director (Common Service) in the post of Senior Assistant Director (Administration) who had been holding the said post by current charge. In this regard BARI invited a Departmental Promotion Committee (D.P.C.) meeting to be held within short time. In such situation, the petitioner on prayer obtained an order of injunction vide order dated 27.10.05 in this writ petition, restraining the respondents from filling up the post of Senior Assistant Director, (Admin) till disposal of the Rule. But on prayer of the respondents in CPLA No. 941/05, this Division (in chamber) stayed the operation of the order of injunction dated 27.10.2005. Pending the Rule issued earlier on 17.7.2005 and the Civil Petition for Leave to Appeal No. 941/05 the respondent has given promotion in the post of the petitioner vide memo dated 05.06.2006 with effect from 23.02.2006 to one Md. Mustafizur Rahman, who is the added respondent No. 7 in the Writ Petition.
 
In the aforesaid development and action taken by the respondents the petitioner made a prayer for issuance of further Rule regarding the promotion of said Md. Mustafizur Rahman to the post of the petitioner and the High Court Division issued further Rule on 25.01.2007 which run follows:

“Let a Rule Nisi issue calling upon the respondents to show case as to why the promotion of Md. Mustafizur Rahman, as approved by 28th Board Meeting of Bangladesh Agricultural Research Institute held on 06.04.2006 and communicated by Memo No. ১প ২/২০০৪/ প্রশাসন/ অংশ ৩/১২৩৭৮ তারিখ ০৫/০৬/২০০৬ referring Memo No. ১২/২০০৪/প্রশাসন/৮৪৭১ তারিখ ২৩/০২/২০০৬ to the post of Senior Assistant Director (Administration) with effect from 23.02.2006 (Annexure-2-14) should not be declared to have been issued without lawful authority and is of no legal effect and or pass such other or further orders as to this Court may seem fit and proper.”
 
The respondent Nos. 3-5 jointly and the respondent No. 6 alone filed an affidavit-in-opposition. The respective parties have also filed supplementary affidavits and an application for contempt of Court. 
 
By the impugned judgment and order, the High Court Division made the Rule absolute in part and directed the respondents to treat the petitioner as in continuous service in the same status and allow him to draw his salary and emoluments.
 
Leave was granted to consider the following grounds:
  1. Whether the writ petition was maintainable due to concealment of facts by the writ petitioner as to the filing of Title Suit No. 352 of 2000 and Title Appeal NO. 120 of 2002 challenging his transfer from BARI to Bangladesh Agricultural Institute, which is the cause of action in the writ petition.
  2. Whether the facts of dismissal of Title Suit as well as Title Appeal not having been mentioned in the writ petition, this amounted to concealment of material facts before the writ Court and as such the writ was liable to be dismissed.
  3.  Whether the writ petitioner who had been transferred from BARI to  Bangladesh Agricultural Institute, which is a unit of BARI, Regulations 16 (1) (Ja)(sic.) of the Bangladesh Agricultural Research Institute Service Regulations, 1990 was applicable in the case of the petitioner and as such whether his consent was necessary for his transfer to Bangladesh Agricultural Institute.
  4.  Whether the Sher-e-Bangla Agricultural University having absorbed the writ petitioner in the service of the university by resolution on the first day and the petitioner having accepted the same without objection, he can now return to BARI. 
  5. Whether the G.P. Fund of the writ petitioner having been transferred to the University as per request of the University, he can now claim to be an employee of BARI.  
  6. Whether the writ petitioner as Senior Assistant Director (Administration) of the University having taken rent of the premises in BARI on standard rent vide letter dated 16.05.2002 he can now claim to be an employee of BARI. 
Mr. Rafiq-ul Hoq, learned Counsel appearing on behalf of the appellants made submissions in line with the grounds upon which leave was granted. He submitted that the High Court Division committed illegality in not holding that the writ petition was not maintainable due to concealment of facts regarding the earlier Title Suit and Title Appeal and also that Regulation 16 (1) (Ja) (sic.) of the Bangladesh Agricultural Research Institute Service Regulation, 1990 was not applicable in the case of the petitioner since he was transferred from BARI to Bangladesh Agricultural Institute.
 
Mr. Abdul Wadud Bhuiyan, learned Counsel appearing on behalf of the respondent No. 1 submitted that the Title Suit and Title Appeal related to a departmental proceeding brought against the writ petitioner which culminated in transfer of the writ petitioner and therefore had no connection with the matters raised in the writ petition. He further submitted that according to the BARI Service Regulation, 1990 the authority cannot issue an order for deputation without the consent of the employee and the writ petitioner applied through proper channel for cancellation of the transfer order on deputation and subsequently made several representations in this regard. He pointed out that according to the provision in Section 59 (2) (Ja) of Sher-e-Bangla Agricultural University Act, 2001 the writ petitioner gave option to return to his original post of his parent department of BARI and therefore he cannot be said to have been absorbed in his post at Sher-e-Bangla  Agricultural University. He also pointed out that the University authority sent a proposal to the Director General of BARI as the writ petitioner’s appointing authority to withdraw the writ petitioner from the University after cancelling the order of deputation. The order of deputation was ultimately cancelled on 17.3.2005 and he was released by the university on the same date. He pointed out that the writ petitioner’s joining report was accepted in his original post as Senior Assistant Director (Administration) BARI. But subsequently, on 24.04.2005 the joining report was cancelled. The learned Counsel submitted that an inquiry was held into the matter of joining of the writ petitioner in his post at BARI. The report concluded that the writ petitioner reserved his right to return to his parent post and accordingly the cancellation of the order of deputation was proper. The learned Counsel further pointed out that the subsequent attempt by BARI authority to promote Mostafizur Rahman to the post of Senior Assistant Director (Administration), that is the post of the writ petitioner, was injuncted by an order of the High Court Division when a further Rule was issued on 25.01.2007. The learned Counsel submitted that in the light of facts and circumstances of the case the High Court Division rightly made the Rule absolute and that the appeal should be dismissed.
 
We have considered the submissions of the learned Counsel appearing for the parties concerned and perused the impugned judgment of the High Court Division and other connected papers on record.
 
It appears that the writ petitioner Kazi Md. Sadequl Islam respondent No. 1 herein was appointed on 24.10.1990 as Assistant Director (Administration) of the Bangladesh Agricultural Research Institute, Joydebpur (BARI) and was later promoted on 15.04.1996 to the post of Senior Assistant Director (Administration). He was subsequently transferred on deputation to the Bangladesh Agricultural Institute, Sher-e-Bangla Nagar, Dhaka in a development post as Assistant Director, (senior scale) (Administration) on 02.09.1998 and released from his parent post on 10.09.1998 without his consent. It was submitted on behalf of the appellants that the matter of consent which appears in the service Rules of BARI, 1990 are not applicable in the case of the writ petitioner as he had already been transferred to Bangladesh Agricultural Institute. We find this argument untenable since the writ petitioner was appointed in the service of BARI, whose service regulation provides in Regulation 16 (3) (Kha) that the employee on deputation will have lien over his post in the institute (BARI) and at the end of his deputation he will return to the Institute. It is also provided in the proviso to regulation 16 (1) that an employee will not be required to remain on deputation without his consent. While on lien, the laws/regulations of Bangladesh Agricultural Institute will not apply to the employee. Moreover, he exercised his option on 09.8.2001, within the time stipulated in the শেরে বাংলা কৃষি বিশ্ববিদ্যালয় আইন, ২০০১ to return to his original post of Senior Assistant Director (Administration) under the Revenue Budget. The service regulations of the University will not be applicable to the writ-petitioner. 
 
With regard to the submissions of learned Counsel for the appellants that the petitioner concealed material facts when filing the writ petition, we find that the Title Suit filed by the writ petitioner related to departmental proceedings brought against the writ petitioner for serious breach of office discipline, corruption and cheating activities and also for being absent from his work place without leave. That in our mind has no connection with the subsequent writ petition filed by the writ petitioner challenging the cancellation of the acceptance of his joining report which he had filed consequent upon cancellation of his deputation order.
 
The evidence and materials on record clearly show that the writ petitioner-respondent No. 1 herein had all along challenged his order of deputation, patently keeping his lien of his parent post and repeatedly requesting for cancellation of the order of deputation. In such circumstances it cannot be said that the respo-ndent No. 1 was absorbed by the Bangladesh Agricultural Institute or the University and, therefore, not in the service of BARI. It is our view that respondent No.1 was employed by BARI and his status continued as such. He was sent to Bangladesh Agricultural Institute on deputation and served there while holding lien over his original post. The institute later became the Sher-e-Bangla Agricultural University. His exercise of the option to return to his original post in accordance with the Act by which the University came into being is clear evidence of the fact that he was never absorbed as an employee of the Sher-e-Bangla Agricultural University. Accordingly, we hold that the writ-petitioner retained his lien over the post of Senior Assistant Director (Administration) of the BARI. Hence, we need not discuss the other grounds of appeal raised by the appellants which relate to his service.
 
The High Court Division has elaborately discussed the evidence and materials on record and upon proper assessment of the facts and circumstances made the Rule absolute in part declaring the impugned notices to have been passed without lawful authority and directing the respondents to treat the petitioner as in continuous service in the same status and to allow him to draw his salary and emoluments.   
 
We do not find any illegality or infirmity in the impugned judgment of the High Court Division, accordingly, the appeal is dismissed without however any order as to costs.

         Ed.