Golam Morshed Khan and others Vs. The Administrative Tribunal, Bogra and another 2017 (2) LNJ 73

Case No: Writ Petition No. 9988 of 2015 With Writ Petition No. 9987 of 2015 With Writ Petition No. 6628 of 2016 With Writ Petition No.10946 of 2013

Judge: Mohammad Ullah. J.

Court: High Court Division,

Advocate: Mr. Manzil Murshid, Mr. Pankaj Kumar Kundu,

Citation: 2017 (2) LNJ 73

Case Year: 2017

Appellant: Golam Morshed Khan and others

Respondent: The Administrative Tribunal, Bogra and another

Subject: Writ Jurisdiction

Delivery Date: 2017-09-14

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Quazi Reza-Ul Hoque, J

And

Mohammad Ullah, J

Judgment on

29.03.2017

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Golam Morshed Khan, son of Abdus Sattar Khan, Surveyor, Upazila Land Office, Nagarkanda, Faridpur and another

...Petitioners

-Versus-

The Administrative Tribunal, Bogra and another

...Respondents

(In Writ Petition No. 9988 of 2015)

AND

Golam Morshed Khan, son of Abdus Sattar Khan, Surveyor, Upazila Land Office, Nagarkanda, Faridpur and another                      

...Petitioners

-Versus-

The Administrative Tribunal, Bogra and another

... Respondents

(In Writ Petition No. 9987 of 2015)

AND

Md. Nurul Islam, son of Moulvi Ali Akbor Sharif, Surveyor, Upazila Land Office, Barisal Sadar, Barisal and another

...Petitioners

-Versus-

The Administrative Tribunal, Bogra and another

...Respondents

(In Writ Petition No. 6628 of 2016)

AND

The Secretary, Ministry of Land, Bangladesh Secretariat, Police Station Shahbag, Dhaka Bangladesh and others

...Petitioners

-Versus-

The Administrative Tribunal, Bogra, Post and District Bogra and another

...Respondents

Constitution of Bangladesh, 1972

Articles 102 and 111

 

Having gone through all the judgments passed by the Administrative Tribunal, Bogra it appears that the Tribunal delivered the judgment in contrary to the decision of this Court. The High Court Division has constitutional jurisdiction under Article 102 of the Constitution. The judgment passed by this Court is binding on all other subordinate Courts including the Tribunal(s). Therefore, the decision as has been given by the High Court Division on several writ petitions with regard to the question of promotion in the post of Kanungo, the Administrative Tribunl cannot have the jurisdiction to pass a contrary decision as has been raised by the respondent No. 2 before the Administrative Tribunal. The Administrative Tribunal or the Appellate Tribunal cannot sit over the judgment of the High Court Division. Though the judgment of the High Court Division was delivered in 2005, the Administrative Tribunal passed its judgment in A.T. Cases of sometimes in 2012 we are of the view that it was not aware at all of the decision of the High Court Division, however it is a judgment per incurium and subsilentio and therefore it cannot be sustained in the eye of law. However, our attention has been drawn by the parties that the Government has taken initiative to amend the Recruitment Rules, 1984, which is awaiting for approval of the Ministry concerned. We hope that the Government would conclude its part in order to resolve the long standing disputes between the parties for smooth functioning in the administration of justice and for the equal protection of law.                                                   . . . (17)

Constitution of Bangladesh, 1972

Article 102

An aggrieved person affected by the judgment and order passed by the Tribunal who were not made parties to the proceeding may challenge the decision of the Tribunal in this Court under writ jurisdiction if it is found that the Tribunal acted without jurisdiction and malice in law and contrary to the decision of the apex Court. In that view of the matter, we are of the view that the present Writ Petitions are maintainable.         . . . (18)

Mr. Md. Salahuddin Dolon, Advocate

. . . For the petitioners

In Writ Petition Nos. 9988 of 2015, 9987 of 2015 and 6628 of 2016.

Mr. Manzill Murshid, Advocate

For the petitioner

In Writ   Petition No. 10946 of 2013.

Mr. Pankaj Kumar Kundu, Advocate

. . . For the respondent No. 2

In Writ Petition Nos. 9988 of 2015, 9987 of 2015 and 10946 of 2013.

Mr. Md. Ferdous Rahman, Advocate

For the respondent No.2

In Writ Petition No. 6628 of 2016.

Mr. Tapash Kumar Biswas, DAG with

Mr. Titus Hillol Rema, AAG and

Mrs. Mahmuda Pervin, AAG

…For the respondents-

Government in all the Writ Petitions.

JUDGMENT

Mohammad Ullah, J:  Since the questions of law and facts involved in the above numbered writ petitions are identical and those have been taken up together for hearing and are now being disposed of by a single judgment.

2.            In all the Writ Petitions Rule Nisi was issued calling upon the respondents to show cause as to why the impugned Judgment and order dated 03.06.2012 passed by the Member, Administrative Tribunal, Bogra in A.T. Case No. 117 of 2011, 122 of 2011, 124 of 2011 and 126 of 2011 allowing the cases of the respondent No. 02 in all the writ petitions should not be declared to have been passed without lawful authority and of no legal effect and/or why such other or further order or orders should not be passed as to this Court may seem fit and proper.

3.            At the time of issuance of the Rules, this Court had stayed the operation of the impugned judgment and orders dated 03.06.2012 passed by the Member, Administrative Tribunal, Bogra in aforesaid A. T. Cases for a period of 6(six) months. 

4.            The facts for the disposal of the Rules as stated in the writ petitions, in short, are that the petitioners had appointed as Surveyors in the service of the Land, Record and Survey Department under the Ministry of Land after being selected through a competitive selection process. The petitioner No.1 in Writ Petition No. 9988 of 2015 had joined on 15.09.2005 as Surveyor in the Upazila Land Office, Nagarkanda, Faridpur. The petitioner No. 2 had joined on 14.11.2013 as Surveyor in the Upazila Settlement Office, Kalia, Narail. The petitioner No. 1 in Writ Petition No. 6628 of 2016 Md. Nurul Islam had joined on 27.12.1993 as surveyor in the Upazila Land Office, Barisal Sadar, Barisal in the scale of Taka- 1200/-. The respondent No. 2 in all the writ petitions filed the aforesaid A.T. Cases before the Administrative Tribunal, Bogra for a direction upon the Government to promote them to the post of Kanungo/Sub-Assistant Settlement Officer by including them in the Kanungo Recruitment Rules, 1984 with retrospective effect from 2003 as some of the Surveyors were promoted in the said post. The Administrative Tribunal, Bogra by the impugned judgments allowed the cases and directed the Government to promote them in the post of Kanungo/Sub-Assistant Settlement Officer by including them in the Kanungo Recruitment Rules, 1984. It has been stated that the very filing of the Administrative Tribunal Case was barred by law under the provisions of section 4(2) of the Administrative Tribunal Act, 1980 (hereinafter referred to as ‘the Act’). No case can be filed before the Administrative Tribunal without preferring any appeal against the final order. The case has been filed in the nature of mandamus and the Tribunal has no jurisdiction and power to entertain such case wherein no final order was impugned. The impugned judgments which have been originated from the cases filed in violation of the specific provisions of the Act and is liable to be declared illegal, without lawful authority and that is ‘void ab initio’. It is further stated that the impugned judgment has been obtained by way of suppression of very important decision of the Apex Court. With the similar and identical claims earlier many of the employees like the respondent No. 2, in all the writ petitions, had filed Writ Petition No. 6006 of 2002 and Writ Petition No. 4264 of 2004, wherein both the Rules were discharged by a single judgment and order dated 15.06.2005. The Rules were discharged on the ground that the writ petitioners who were the Mutation Assistants, Copyist-cum-Bench Clerks, Record Keepers, and Peskars could not make out a case for inclusion of their posts in the schedule of the Kanungo Recruitment Rules, 1984 as feeder posts of Kanungo. Some employees who have been holding the post of Copyist-cum-Bench Assistants (now Bench Clerks) had filed the case for their upgradation from category II to category I as under the Kanungo Recruitment Rules, 1984 the posts of category I has been given preferential consideration for promotion as Kanungo. The respondent No. 2 was the petitioner No. 9 in Writ Petition No. 4264 of 2004 with almost similar and identical prayer one Record Keeper named Md. Mohibur Rahman and 6 others Copyist-cum-Bench Assistant filed Writ Petition No. 8217 of 2013 and some other employees standing on the same footing of the respondent No. 2 filed another writ petition being No. 2353 of 2013 before this Court. Those were disposed of analogously by a judgment and order dated 17.06.2014. In the said judgment, the High Court Division has categorically observed that a person interested for promotion is to enter into the zone of feeder post for making them eligible to be included in the list and unless and until the posts of the prospective promotee are included in the list of feeder post they cannot enter into the zone of promotion. However against the said judgment and order dated 17.06.2014 passed by those writ petitions, the writ petitioners preferred in Civil Petition for Leave to Appeal No. 2479 of 2014 before the Appellate Division which was also dismissed for default on 08.03.2015.

5.            The present petitioners when awaiting for promotion for long time, they have been deprived of getting their promotion due to the impugned judgment. The petitioners requested to the concerned Ministry to challenge the impugned judgment but it kept silent inexplicably and therefore the petitioners moved this Court and obtained the Rules as stated above.

6.            The Rules are contested by the respondent No.2 through Mr. Pankaj Kumar Kundu, learned Advocate who have filed affidavits-in-opposition controverting the statements made in the writ petitions.

7.            Mr. Md. Salahuddin Dolon, learned Advocate appearing for the petitioners, at the outset, submits that until and unless the post of the respondent No.2 in all the writ petitions are included in the list of feeder post they cannot claim equal status with the petitioners in view of the provision in sub-clause nos. 1 and 2 of clause-B in serial no. 4 of the schedule to the Rules, 1984. The High Court Division adjudicated the matter in several writ petitions and consistently has been taken the view that the respondent No. 2 cannot claim promotion to the post of Kanungo/Sub-Assistant Settlement Officer without necessary amendment of the Rules, 1984 and therefore the judgment as has been passed by the Administrative Tribunal is contrary to the decision of the High Court Division which should be declared to have been passed without lawful authority and is of no legal effect. The learned Advocate next submits that the judgment passed by the High Court Division is binding to all the subordinate courts including the Administrative Tribunal under Article 111 of the Constitution. The learned Advocate next submits that the respondent No. 2 was very much party in the Writ Petition No. 6264 of 2004; it was the duty of the respondent No. 2 to place the judgment of the High Court Division passed in the year 2005 before the Administrative Tribunal, Bogra but in not doing so and suppressing the material facts they procured the impugned judgment which should be declared to have been passed without lawful authority and is of no legal effect. The learned Advocate lastly submits that the case as has been filed in the Administrative Tribunal was barred by law under the provision of section 2 of the Administrative Tribunal Act, 1980, since no case can be filed before the Administrative Tribunal without preferring an appeal against the final order. 

8.            Mr. Manzill Murshid, learned Advocate appearing for the petitioner in Writ Petition No. 10946 of 2003 has adopted the submissions of Mr. Md. Salahuddin Dolon.

9.            Mr. Pankaj Kumar Kundu, learned Advocate appearing for the respondent No. 2 candidly submits that an employee cannot seek promotion to the higher post without being included in the schedule of feeder post, the petitioner No. 2 does not belong to a feeder post of Kanungo/Sub-Assistant Settlement Officer as the post of Surveyor (Settlement) is not included in the existing Kanungo Recruitment Rules, 1984. The learned Advocate submits further that the writ petition is not maintainable challenging a decision of the Administrative Tribunal since there was a specific and alternative provision to prefer an appeal before the Administrative Appellate Tribunal and thus the Rules are liable to be discharged. Mr. Kundu, submits further that the petitioners are not aggrieved person since the Tribunal has not pass any order preventing their promotion and as such they have no locus standi to challenge the verdict of the Tribunal under Article 102 of the Constitution.

10.        Mr. Kundu, submits further that the respondent No. 2 joined in the service in the year 1989 and the petitioner No. 2 has joined in the year 2013 and the respondent No. 2 is senior to the petitioner No. 2 in the service and as such Tribunal did not commit any illegality in passing the judgment and in directing the Government to promote the respondent No. 2 to the higher post of Kanungo/Sub-Assistant Settlement Officer. Mr. Kundu, submits further that although the respondent No. 2 in all the writ petitions were included in the feeder post but were placed in a discriminatory manner in a second category in spite of the fact that they along with others got same scale of pay and as such in considering this aspect the Tribunal passed the judgment directing the Government to promote the respondent No. 2 to a higher post.

11.        He submits further that the Mutation Assistants having the same qualifications and scale of pay were not included in the feeder post which is a glaring instance of discrimination  and the Tribunal taking into consideration of the discrimination passed the impugned judgment directing the Government to promote the respondent No.2 in the post of Kanungo/Sub-Assistant Settlement Officer.   

12.        We have heard the submissions of the learned advocates of both sides and perused the materials on record wherefrom it transpires that the respondent No. 2 in all the writ petitions filed aforesaid Administrative Tribunal Cases before the Administrative Tribunal, Bogra seeking a direction upon the Government to promote them in the post of Kanungo/Sub-Assistant Settlement Officer by including them in the Kanungo Recruitment Rules, 1984 with retrospective effect from 2003. The Administrative Tribunal by the impugned ex-parte judgment and orders allowed the case and directed the Government to promote them in the post of the Kanungo/Sub-Assistant Settlement Officer by including them in the Kanungo Recruitment Rules, 1984. It further appears that some other settlement staffs like the respondent No. 2 i.e. some Copyist-cum-Bench Assistant, Record Keepers, Peshkar and Mutation Assistant filed Writ Petition No. 4264 of 2004 before this Court. In the said writ petition, the petitioners No.1-17 were Copyist-cum-Bench Assistant while rest 16 petitioners were Mutation Assistant. They moved this Court claiming that all of them, rendered services for a number of years and are eligible for promotion in the post of Kanungo/Sub-Assistant Settlement Officer. The Ministry of Land by its Memo dated 27.12.2003 asked the Director General, Land Records and Survey to send the names of the eligible candidates for preparing a gradation list and accordingly the Deputy Director (Admin) by a Memo dated 06.06.2004 sent a list of candidates to the respondent No.1 but the names of the petitioners of that writ petition were not included in the said list. As such they have sent a Notice Demanding Justice, through their learned Advocate requesting the respondents to cancel/rescind the Memo dated 27.12.2003, but without any result. Being aggrieved by and dissatisfied with the decision of non-inclusion of the names of the petitioners in the said gradation list, they moved this Court and obtained the Rule in Writ Petition No. 4264 of 2014. Their grievance was that although the Copyist-cum-Bench Assistants were included in the feeder posts for promotion to the post of Kanungo but were placed in the second category. Their further grievance was that the Mutation Assistants were not at all included in the said feeder posts for promotion.

13.        In Writ Petition No. 4264 of 2004, it was contended by the respondent-Government (Secretary, Ministry of Land) that the Director of Land, Records and Survey is a subordinate organization to the Ministry of Land. Ministry of Land is the legal authority for direct recruitment to the post of Kanungo and is also responsible for promotion to the post of Kanungo from different types of feeder posts as described in the Kanungo Recruitment Rules, 1984. While several posts of Kanungo have fallen vacant, the Ministry of Land made an attempt to fill up those vacant posts. Then the Land Ministry asked the respondent No.4 vide Memo dated 27.12.2003 to send the names of the eligible candidates according to the Kanungo Recruitment Rules 1984, as amended in 1985 for preparing an up-to-date gradation list for promotion as Kanungo. Accordingly, the respondent No.6 of that writ petition on behalf of the respondent No. 4, sent a list of eligible candidates to the Ministry of Land on 06.06.2004. From the Kanungo Recruitment Rules, 1984, it has been seen that the feeder posts for promotion as Kanungo are Draftsman-cum-area Estimator-cum-Sheet Keeper/Survey Computer/Sub-Surveyor/Boundary Amin (category-1) and Junch Mohar, Bench Clerk, Camp Badar Amin, Zinc Corrector (category-2). According to the Kanungo Recruitment Rules, 1984, the petitioners were not eligible for promotion as Kanungo as there were sufficient eligible candidates for the posts mentioned in category-I  over the category II for the purpose of promotion in the post of Kanungo. Basing on that principle, the respondent No. 6 did not include the petitioners names in that list. So the action taken by the respondent Nos.4-6 is quite legal and valid in the eye of law.

14.        However, this Court after hearing the parties discharged the Rule with the following observations and reasons:

“The appointment and the method of recruitment to the post of Kanungo was amended by the aforesaid notification dated 04.06.1985 (Annexure-B to W. P. No. 4264 of 2002).

It appears that the recruitment to the post of Kanungo was made in two methods, one by direct recruitment to the extent of 50% as stated in column (a) and the rest 50% by promotion from the holders of the post mentioned in column (b) under serial no. 1 of the schedule to the Rules.

These are shown in the amended scheduled to the Rules. From a plain reading of the schedule, it will be clear that so far the employees coming under column (b)(ii) is concerned, their qualifications and experience, required for appointment in the post of Kanungo from the feeder posts is much less than those required from the employees coming under column (b)(i). They must have survey final passed certificate of survey training or Aminship at the Survey Institute which is not required so far the employees coming in column (b)(ii). So far the candidates mentioned in column (b)(i) are concerned, it appears that all of them either has a superior additional qualification of H.S.C from a recognized Board or in lieu of such qualification, they must have the S.S.C from a recognized Board along with the Survey Training or Aminship Training. It appears that the concerned authorities in making the provision for promotion to the post of Kanungo from the feeder posts, considered the requirement of either H.S.C or a professional qualification in mind. It is apparent that the concerned authorities were conscious of the duties and functions to be performed by the Kanungos or Sub-Assistant Settlement Officers as they are newly designated, as such, in their wisdom, did not include all the employees in the Settlement Offices, in the feeder posts for promotion to the post of Kanungo or Sub-Assistant Settlement Officer. It is very true that the learned Advocates for the petitioners in both the writ petitions strenuously submitted that earlier at the time of their appointment, all those employees had the same scale of pay or similar length of service but it appears that the post of Kanungo or Sub-Assistant Settlement Officer is a kind of special post and cannot be performed by all the persons who do not have the requisite qualifications as felt necessary by the concerned authorities.

In that view of the matter, although initially the persons holding the post included in column (b) and others such as the petitioners in both the writ petitions, might have started their career together or they might have the same scale of pay but since the promotion to the post of Kanungo which requires special training or higher qualification, should be left with the discretion of the concerned authorities in framing the Rules. It appears that the concerned authorities in revising the Rules, were concerned about their professional requirements and the duties to be performed by such Settlement Officers.

Under such circumstances, we do not find any substance in the submissions made on behalf of the petitioners that they were unduly discriminated on being omitted in column (b)(i) or (b)(ii). However, since it is the requirement of the Revenue administration the concerned authorities are still entitled to further reorganize, either by including other employees in the feeder posts as mentioned in column 4(b) by amending the required qualifications as mentioned in column 5, in their discretion but only in keeping the interest of the Revenue Department of the Republic in mind.

So far the claim of legitimate expectation for promotion to the post of Kanungo is concerned, since the petitioners do not satisfy the requirement of qualification, as discussed above, the said principle do not have any manner of application to the facts and circumstances of this case.

With these observations the Rules in both the Writ petitions are discharged but without any order as to costs.”

15.        In almost similar situation, some other settlement staffs  like the respondent No. 2 of the instant writ petitions filed Writ Petitions No. 8217 of 2013  and 2353 of 2013 and Rule Nisi were issued calling upon the respondents to show cause as to why their actions as to promotion to the posts of Kanungo/Sub-Assistant Settlement Officer under the Ministry of Land should not be declared to have been made without lawful authority and of no legal effect and why they should not be directed to make promotion to the post of Kanungo/Sub-Assistant Settlement Officer after including the posts of 3(three) categories, namely, Copyist-cum-Bench Assistant, Mutation Assistant and Record Keeper in gradation list in pursuance of Memo dated 10.09.2009 issued by the Director General, Directorate of Land, Records and Survey. Both the Writ Petitions were heard analogously and this Court disposed of the same with the following observations: 

“Law as it stands now requires a person interested for promotion to enter into the Zone of “feeder post” by making them eligible to be included in the list. Unless and until the posts of prospective promotee are included in the list of feeder post, they cannot enter into the Zone of promotion. The existing judgments of the High Court Division and the existing Recruitment Rules are to be taken into consideration by the respondents concerned while disposing the matters of the petitioners of both the Writ Petitions who are to be dealt with in accordance with law.

16.        It appears that in two categories in sub-clause (1) and (2) of Clause B in serial 4 to the schedule of Recruitment Rules, 1984 creating anomaly inasmuch as the existing Recruitment Rules are discriminatory and as such, the concerned respondents has taken initiative to frame a fresh Recruitment Rules for the purpose of promotion to the post of Kanungo/Sub-Assistant Settlement Officer which is awaiting approval of the Ministry concerned.

17.        However, having gone through all the judgments passed by the Administrative Tribunal, Bogra it appears that the Tribunal delivered the judgment in contrary to the decision of this Court. The High Court Division has constitutional jurisdiction under Article 102 of the Constitution. The judgment passed by this Court is binding all other subordinate Courts including the Tribunal(s). Therefore, the decision as has been given by the High Court Division on several writ petitions with regard to the question of promotion in the post of Kanungo, the Administrative Tribunl cannot have the jurisdiction to pass a contrary decision as has been raised by the respondent No. 2 before the Administrative Tribunal. The Administrative Tribunal or the Appellate Tribunal cannot sit over the judgment of the High Court Division. Though the judgment of the High Court Division was delivered in 2005, the Administrative Tribunal passed its judgment in A.T. Cases of sometimes in 2012 we are of the view that it was not aware at all of the decision of the High Court Division, however it is a judgment per in curium and subsilentio and therefore it cannot be sustained in the eye of law. However, our attention has been drawn by the parties that the Government has taken initiative to amend the Recruitment Rules, 1984, which is awaiting for approval of the Ministry concerned. We hope that the Government would conclude its part in order to resolve the long standing disputes between the parties for smooth functioning in the administration of justice and for the equal protection of law.

18.        It is to be noted here that an aggrieved person affected by the judgment and order passed by the Tribunal who were not made parties to the proceeding may challenge the decision of the Tribunal in this Court under writ jurisdiction if it is found that the Tribunal acted without jurisdiction and malice in law and contrary to the decision of the apex Court. In that view of the matter, we are of the view that the present Writ Petitions are maintainable.

19.        Having gone through the materials on record, we find merit in these Rules. Accordingly, the Rules are made absolute. The impugned judgment passed by the Administrative Tribunal, Bogra in A.T. Case No. 117 of 2011, 122 of 2011, 124 of 2011 and 126 of 2011 are hereby declared to have been passed illegally and without lawful authority and of no legal effect.

Communicate the judgment to the respondents at once.

Ed.

 



Writ Petition No. 9988 of 2015 With Writ Petition No. 9987 of 2015 With Writ Petition No. 6628 of 2016 With Writ Petition No.10946 of 2013.