Case No: Civil Petition for Leave to Appeal No. 822 of 1998
Judge: Mahmudul Amin Choudhury.,
Court: Appellate Division ,,
Advocate: B Hossain,Dr. M Zahir,,
Citation: Civil Petition for Leave to Appeal No. 822 of 1998
Case Year: 2001
Appellant: Government of Bangladesh
Respondent: Member, Administrative Tribunal, Dhaka and others
Subject: Administrative Law,
Delivery Date: 2001-1-31
Government of Bangladesh
Member, Administrative Tribunal, Dhaka and others, 2001,
53 DLR (AD) (2001) 112
Latifur Rahman CJ
Mahmudul Amin Chowdhury J
Mainur Reza Chowdhury J
Md. Gholam Rabbani J
Md. Ruhul Amin J
Government of the Peoples Republic of Bangladesh represented by the Secretary, Ministry of Home Affairs, Dhaka...... ............Petitioner
Member, Administrative Tribunal, Dhaka and others............................... Respondents*
January 31, 2001.
The Constitution of Bangladesh, 1972
When the Tribunal case was disposed of on merit without preferring an appeal with the appropriate forum i.e. the Administrative Appellate Tribunal, writ petition before the High Court Division is not maintainable……………(6)
B Hossain, Advocate-on-Record—For the Petitioner
Dr. M Zahir, Senior Advocate (Serajul Huq, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record—For Respondent No. 2.
Not represented—Respondent Nos. I & 3.
Civil Petition for Leave to Appeal No. 822 of 1998.
(From the Judgment and order dated 13th July 1998 passed by the High Court Division in Writ Petition No. 6120 of 1997).
Mahmudul Amin Choudhury J.- This petition for leave to appeal is against judgment and order dated 13th July 1998 passed by a Division Bench of the High Court Division in Writ Petition No. 6120 of 1997 wherein judgment dated 29-10-1996 passed by the learned Member, Administrative Tribunal in Administrative Tribunal Case No. 62 of 1994 was challenged.
2. The short fact leading to this petition is that, respondent No. 2 filed the aforesaid Administrative Tribunal Case stating that he joined the Army as Gentlemen Cadet and on completion of his training got regular commission in September, 1965 in the Pakistan Army and came back to Bangladesh in 1973 with the rank of Major. He then retired from the army and was appointed Manager. Tangail Cotton Mills, Chittagong by order dated 9-8-1974 issued from the Textile Mills Corporation. Thereafter he was fully absorbed in the erstwhile PSP Cadre by notification dated 30-8-1978 and joined Sarda Police Academy as ASP on 1-10-1978 and on completion of training he was appointed as Additional Superintendent of Police by notification dated 31-3-1979 and ultimately rose to the rank of Additional Inspector General of Police by notification dated 1-3-1992. Thereafter on 4-9 1993 he was retired on completion of 25 years of service. On being aggrieved by the order retirement he filed the aforesaid Administrative Tribunal Case.
3. The present petitioner contested the case, before the Tribunal and their case is that the Government was fully competent to direct retirement of respondent No. 2 under section 9(2) of Public Servants (Retirement) Act, 1974 after completion of 25 years of service which has been done in public interest and no illegality or irregularity has been committed in retiring the respondent from service and there was no violation of any of the rules and regulations. The Administrative Tribunal it appears on hearing both the sides by judgment dated 29-10-1996 allowed the case and set aside the order of retirement dated 4-9-1993 and directed for reinstatement of the petitioner with all benefit admissible under the rules. Thereafter, instead of preferring an appeal under the Administrative Tribunal Act the present petitioner moved the High Court Division in Writ Petition No. 6120 of 1997, A Division Bench of the High Court Division then after hearing the learned Advocates of both the sides by judgment dated 13th July, 1998 discharged the Rule holding that in view of Article 117 of the Constitution of the People’s’ Republic of-Bangladesh when there was a forum for appeal before the Administrative Appellate Tribunal established under the Administrative Tribunal Act the writ petition as filed is not maintainable. It has further been observed that in view of sub-Article (5) of Article 102 of the Constitution the application challenging the order or decision of the Administrative Tribunal is not maintainable as, according to the High Court Division the appeal may be taken to the Administrative Appellate Tribunal and when that was not done it cannot be found that the writ petition is maintainable.
4. Mr. B Hossain, learned Advocate-on-Record appearing on behalf of the petitioner, placing the decision reported in 20 BLD (AD) 230 (Bangladesh Biman Corporation vs. Lt Col (Retd) Md. Zainul Abedin and ors) submits that the petitioner was in defence service and his past service was counted towards seniority in civil post and after counting it was found that respondent No. 2 has completed 25 years of service and accordingly, for public interest the order of retirement was passed under the Public Servants (Retirement) Act, 1974 He submits that the High Court Division committed wrong in discharging the Rule when the law on this point is, settled and when the Government took the aforesaid decision in public interest.
5. Dr. M Zahir, learned Counsel entering caveat, on the other hand, submits that when the petitioner who contested the case before the Tribunal has not preferred any appeal and when he had remedy before the Administrative Appellate Tribunal the writ petition was rightly rejected by the High Court Division and there is no ground for interference in the matter.
6. It appears that, the. High Court Division found that the writ petition is not maintainable and discharged the Rule taking the view that ‘the proper remedy of the Government was by way of appeal before the Appellate Division. It appears that after contest in the Administrative Tribunal the Government has not taken any appeal to the Administrative Appellate Tribunal. That Tribunal passed the judgment on 29-10-1996 and after a long lapse of time the writ petition was filed. This Division in the case of Government of Banglad4sh vs. M Kashedul Islam Chowdhury in Civil Petition for Leave to Appeal No. 1246 of 1999 on similar fact refused to interfere holding that there was hardly any ground to assail the correctness of the view of the High Court Division on the maintainability of such writ petition. We find nothing to deviate from this opinion of this Division in the aforesaid case. Furthermore, this is not a proper case where this Division should interfere exercising the extraordinary authority under Article 104 of the Constitution.
7. In that view of the matter, we find no merit in this petition and the same is accordingly dismissed.