Government of Bangladesh and others Vs. Jahangir Alam and oth­ers, V ADC (2008) 29

Case No: Civil Appeal No. 38-39 of 2005

Judge: Md. Joynul Abedin ,

Court: Appellate Division ,,

Advocate: Mr. T. H. Khan,Syeda Afser Jahan,,

Citation: V ADC (2008) 29

Case Year: 2008

Appellant: Government of Bangladesh

Respondent: Jahangir Alam

Subject: Writ Petition,Constitutional Law,

Delivery Date: 2007-05-24

Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin CJ
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Hassan Ameen J
 
Government of Bangladesh & others
.......................Appellant
Vs.
Jahangir Alam and others
…...................Respondents
 
Judgment
May 24, 2007. 
 
Constitution of Bangladesh, 1972
Article 102
The High Court Division can interfere by a writ of certiorari only when the person proceeded against has committed an act or taken a proceeding without jurisdiction or in excess of jurisdiction. …. (13)
 
Lawyers Involved:
Syeda Afser Jahan, Deputy Attorney General, instructed by Ferozur Rahman, Advocate-on-Record-For the Appellants (In both the Appeals).
T. H. Khan, Senior Advocate (Md. Mahbubey Alam, Advocate with him), instructed by Chowdhury Md. Zahangir, Advocate-on-Record-For Respondent Nos. 1-4, 6-9, 15-16, 21, 25-27, 31-32, 34, 35, 43, 45 & 46 (In Civil Appeal No. 38 of 2005).
T. H. Khan, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For Respondent Nos. 10, 12, 20, 33, 36, 38, 39, 41 & 47 (In Civil Appeal No. 38 of 2005).
Not represented- Respondent Nos. 5, 11, 13-14, 17-19, 22-24, 28-30, 37, 40, 42 & 44 (In Civil Appeal No. 38 of 2005).
T. H. Khan, Senior Advocate, instructed by Chowdhury Md.  Zahangir, Advocate-on-Record-For Respondent Nos. 1, 14, 20, 25, 29, 30 & 32 (In Civil Appeal No. 39 of 2005).
T. H. Khan, Senior Advocate, instructed by Syed Mahbubur Rahman, Advocate-on-Record-For Respondent Nos. 3, 4, 8,10,12,17 & 18 (In Civil Appeal No. 39 of 2005).
Not represented-For Respondent Nos. 2, 5-7, 9-11, 13, 15-16, 19, 21-24, 26-28, 31 & 33-35 (In Civil Appeal No. 39 of 2005).
 
Civil Appeal No. 38-39 of 2005
(From the judgment and order dated 29.08.2004 passed by the High Court Division in Writ Petition Nos. 8254 of 2002 and 4344 of 2003).
 
JUDGMENT
 
Md. Joynul Abedin J.
 
1. These two appeals by leave are directed against the common judgment and order dated 29.08.2004 passed by a Division Bench of the High Court Division in Writ Petition Nos. 8254 of 2002 and 4344 of 2003 making both the Rules absolute.
 
2. The appeals involve in all 76 respon­dents. These respondent as writ-petition­ers filed the aforesaid two writ petitions by way of certiorari on the averments set out herein below and obtained two sepa­rate rules in same terms calling upon the writ-respondents, now appellants, namely the Government of Bangladesh in the Ministry of Planning and in the Ministry of Agriculture and three Government functionaries, to show cause as to why their decisions/actions in amending the Project Pro-forma of the Project called Strengthening Plant Protection Services Project (SPPS Project), Phase-II and the impugned orders vide letters dated 30.11.2002, 30.12.2002 and 31.12.2002, Annexures-P, Q and R in Writ Petition No. 8254 of 2002 and Annexures-R, S and T as well as the letters dated 8.1.2003 vide Annexures-U and U-l in Writ Petition No. 4344 of 2003 should not be declared to have been made without lawful authority and to be of no legal effect.
 
3. The Department of Agricultural  Extension, Ministry of Agriculture, embarked on the aforesaid SPPS Project to attain self-sufficiency in food on a sustainable basis by assisting the poor and small farmers to increase their production by ensuring measures against crop losses from diseases and pest infestation without affecting the environment. The project was approved by the Executive Committee of the National Economic Council (ECNEC) on 29.1.1992 and the Project Pro-forma was thereafter made and approved by the Government on 24.9.1992. This Project comprised of five sections: (a) Integrated Pest Management (IPM), (b) Surveillance, Forecasting and Early Warning, (C) Plaint Quarantine (d) Pesticide Administration and Quality Control and (e) Vertebrate Pest Management.
 
4. The writ petitioners were appointed in various posts as officers and non-officers in the Project. Initially the Project was intended to last for five years from July  1991 to June 1996 but as of necessity it  was extended for another five years in two  terms ending on 30.6.2002. Before the expiry of the Project the Ministry of Agriculture took a decision to continue second Phase of the Project. Accordingly Project Pro-forma for Phase-II was conceived and prepared. The Project Proforma contemplated that the officers and  employees appointed in Phase-I of the Project will be absorbed in Phase-II of the  Project keeping in view of the satisfactory result achieved in Phase-I of the Project in order to utilize the ex-parties of the existing Project employees. It was also contemplated that after completion of the Project Ministry of Agriculture will take necessary steps to transfer the Project per­sonnel to the revenue budget to utilize their ex-parties for the sake of sustainable continuation of the Project activities. But the Ministry of Agriculture by its letter dated 27.5.2002 took up the position that the Project Pro-forma could not provide for transfer of the Project Personnel to the Revenue Budget. Thereafter the continu­ity of the services of the Project employ­ees in Phase-II of the Project was consid­ered in a pre-ECNEC meeting held on 10.8.2002. Subsequently ECNEC in its meeting dated 15.8.2002 approved the financial component of the Project. The Divisional Project Evaluation Committee (DPEC) thereafter in its meeting dated 21.10.2002 presided over by the Secretary, Ministry of Agriculture, finalised the Project Pro-forma, Phase-II bringing some change/amendment to the effect that the personnel recruited in Phase-I of the Project may be considered for their appointment in Phase-II of the Project changing the original version that the per­sonnel appointed in Phase-I will be consid­ered for their appointment in Phase-II of the Project. In the said meeting of the DPEC the Project Pro-forma was further amended deleting the provision that upon completion of the Project necessary steps would be taken to transfer Project Personnel to the Revenue Budget of the Government. In view of the aforesaid amendment in the Project Pro-forma, Phase-II the writ respondents issued the impugned orders causing recruitment of personnel in various posts in Phase-II of the Project by inviting applications for appointment in the news papers affecting the rights of the writ petitioners to be absorbed in Phase-II of the Project and also to be transferred along with their posts in the Project to the Revenue Budget i of the Government.
 
5. The appellants as writ-respondents contested the rules by filing affidavits-in- opposition stating, inter alia, that the Project was implemented by the officers and staff of the Department of Agricultural Extension of the Ministry of Agriculture placing their services on deputation against sanctioned posts as contained in Project Proforma approved by the Government and the writ petitioners; were appointed merely as supporting hands for implementation of Phase-I of the Project for the period from July 1991  of 30th June, 2002 and they were appointed in Phase-I of the Project absolutely on temporary and contract basis. Sometimes infrastructure along with the manpower of a Development Project is transferred to revenue budget of the Government after completion of the project. But this is done purely on consideration of the expediency and potentiality of the project and also on the availability of the funds. In Phase-II of the Project DANIDA agreed to make its funds available only to implement the IPM section. Accordingly the Divisional Project Evaluation Committee (DPEC) had to change the Project Pro-forma of Phase-II with regard to Project personnel. Further, the impugned orders of the Government for fresh and direct recruitment of personnel for Phase-II of the Project personnel. Further, the impugned orders of the Government for fresh and direct recruitment of personnel for Phase- II of the Project by inviting applications in the daily news papers were not contrary to or inconsistent with the original provision  of the Phase-II Project Pro-forma concerning recruitment of Project personnel in Phase-II of the Project inasmuch as the original and the unamended version of the Phase-II Project Pro-forma did not pro­vide for absorption of the personnel of Phase-I in Phase-II of the Project in to but through fresh appointment in competi­tion with others with the relaxation in age depending on their experience and ex-par­ties. The appellants therefore committed no illegality in making the impugned amendment in the Phase-II Project Pro-forma inviting applications in the news papers for fresh appointment and deleting the provision regarding transfer of Project personnel to revenue budget of the Government after completion of the Project.
 
6.  The High Court Division after hearing the parties made the rules absolute and in Writ Petition No. 8254 of 2002 held, "this Court finds that in the facts and circum­stances of this case the amendments intro­duced in the Project Pro-forma by the DPEC operating to the detriment of the petitioner's interest in securing continued employment in the project are products of arbitrary and irrational exercise of discre­tionary power.  As a consequence, the impugned orders in Annexure-P, Q and R flowing from such amendments are indeed to be held as being issued without lawful authority and to be of no legal effect. Consequently, this Court finds that all employees of the project engaged in Phase-I of the project shall be deemed to be continued to be employed in phase-II of the project." In other writ petition i.e. Writ Petition No. 4344 of 2003 the High Court Division held similar view mutatis mutandis.
 
7.  Leave was granted to consider (a) whether the writ-petitioners were appoint­ed in Phase-I of the Project purely on temporary and contract basis up to the comple­tion of the Phase-I or the writ-respondents i.e. the Government was under any legal obligation to absorb them in the Phase-II of the- Project,(b)whether the Government was free to amend the Project Pro-forma enabling it to implement Phase-II of the Project by taking steps for direct appointment of personnel through open competition by inviting applications in the news papers affording opportunity to the writ-petitioners as well as others, (c) whether the impugned order causing pub­lications of notification in the news papers inviting applications for appointment in various posts in Phase-II of the Project were illegal, (d) whether the Government in the Ministry of Agriculture was under any legal obligation to transfer the Project personnel including the writ petitioners to the revenue budget after completion of the Project.
 
8. Mrs. Syed Afser Jahan, the learned Deputy Attorney General submits that the Project was implemented by the officers and the staff of the Department of Agricultural Extension by placing their services on deputation against the sanc­tioned posts as contained in the Project Pro-forma approved by the Government. The writ-petitioners were appointed as supporting hands for the implementation of Phase-I of the Project on temporary and contract basis. She further submits that the Government was free to amend the Project Pro-forma in order to devise ways and means to implement Phase-II of the Project in view of the fund constraint con­sequent upon DANIDA having agreed to provide necessary funds for completing only ore section of the Project, namely IPM. Besides, the unamended provision of the Project Pro-forma concerning Project personnel did not allow the personnel appointed in Phase-I to be absorbed in Phase-II of the Project in toto. The learned Deputy Attorney General also submits that it is not a matter of legal right for the writ petitioners nor a corresponding legal obligation on the part of the writ respondents to transfer the personnel of a Development Project to the revenue budget of the Government inasmuch as such course of action by the Government depended largely on factors like expediency and potentiality of the Project and availability of funds. She further argues that since Phase-II of the Project had already ended on 30.6.2006 the writ petitions became infructuous.
 
9. Mr. T. H. Khan, the learned counsel for the respondents submits that the writ-petitioner-respondents were appointed for the entire Project and not for Phase-I of the Project. The appellants were therefore under a legal duty to absorb them in Phase-II of the Project after completion of Phase-I. Hence the appellants acted with-out lawful authority in amending the Phase-II Project Pro-forma providing for fresh appointment and thus infringing the right of the respondents to be absorbed in Phase-II of the Project. Mr. Khan lastly submits that since the SPPS Project is indespensively necessary for food autarky in Bangladesh, the appellants acted with-out lawful authority in failing to transfer the Project personnel to the revenue budget of the Government to utilize their ex-parties for sustainable continuation of the Project activities in the Department of Agricultural Extension in the Ministry of Agriculture.
 
10. The Government in the Ministry of Agriculture with the financial assistance of DANIDA launched the aforesaid SPPS Project with a view to protecting crops against pests and diseases. Initially this Project (SPPS Project) was undertaken as one and a single Project. Respondents were accordingly recruited for implemen­tation of the Project. But towards the last Phase of the Project it was considered expedient to undertake certain operations by initiating a second Phase of the Project. Accordingly Project Pro-forma of the Phase-II was prepared formulating the ways and means to achieve the goal. This project was a development project and it was undertaken in collaboration with DANIDA for the development of the Agriculture Sector of the country. In order to implement Phase-I of the Project vari­ous posts were created and the key posts were filled in by the government officers on deputation to the Project. Other posts were filled in by recruitment of personnel from outside on purely temporary and contract basis. The personnel appointed in these posts from out side were therefore not government servants. Their services were, therefore, governed and regulated as per the terms and conditions of their let­ters of appointment and also by the law of master and servant.
 
11. In course of appointments of the respondents in various posts in Phase-I of the Project no representation was made by the appellants that their posts along with the infrastructure of the Project will be transferred to the Revenue Budget of the Government after the completion of the Project. Similarly, there was also no prom­ise made by the appellants in any manner that the Project Pro-forma would not be amended or changed under any circum­stances for implementation of the Project.
 
12. It is however noted that after the com­pletion of Phase-I DANIDA agreed and undertook to finance Phase-II of the Project only with regard to IPM section leaving out other four sections of the Project. This ground reality induced the Government to amend the Phase-II Project Pro-forma. In this background of the case, we do not see that the appellants commit­ted any illegality or acted without lawful authority in bringing amendment or change in the Project Pro-forma either with regard to the recruitment of person­nel in Phase-II of the Project by inviting fresh applications for appointment in the posts advertised in the news papers and also for deleting the provision for transfer of the Project personnel to the Revenue Budget of the Government. Because the respondents were recruited during 1993-1998 for Phase-I of the Project which ended on 30.6.2002 as per terms and con­ditions contained in their letters of appointment. The Project Pro-forma for Phase-II was conceived and prepared after Phase-I of the Project ended in June 2002 and was approved by ECNEC on 15.8.2002. It was thereafter amended by DPEC in its meeting held on 21.10.2002. In the sequence of events as stated above it can not be said that the respondents accepted their employment in Phase-I of the Project being persuaded by the state­ments made in the Phase-II Project Pro-forma or by the representation or promise made by the appellants at any time that they will be absorbed in Phase-II of the Project. The statements contained in the Phase-II Project Pro-forma with regard to Project personnel, even prior to the amendment complained of, did not pro­vide for in toto absorption of the Project personnel of Phase-I to Phase-II of the Project. The relevant portion of the Phase-II Project Pro-forma reads as under: "However, for the proper implementation, supervision and monitoring of the Project activities provision has been made for 99 nos. of manpower in the 2nd phase of the SPPS Project as per decision of Pre-ECNEC meeting held on 10th August 2002. The staff provision is shown in Annexure-C and job description is shown in Appendex-IX. Decision was taken that as per Govt. rules the recruited personnel of the 1st Phase will be considered for the recruitment of 2nd Phase of the Project. In that case, their age bar can be relaxed and arrangement can be made for their appointment giving due consideration on their experiences".
 
13. The High Court Division can interfere by a writ of certiorari only when the per­son proceeded against has committed an act or taken a proceeding without jurisdic­tion or in excess of jurisdiction. We have already noticed that DPEC, a competent authority, amended the initial provision in the Project Pro-forma, Phase-II, with regard to recruitment of personnel in Phase-II of the Project and also by delet­ing the provision altogether concerning transfer of the Project personnel to the revenue budget of the Government in the changed circumstance brought about by the refusal on the part of DANIDA to finance all the five sections except IPM section. We have already observed herein­before, the unamended provision with regard to Project personnel as quoted above did not create any right in the respondents to be absorbed in Phase-II of the Project in toto but they were liable to be considered with others in open compe­tition with due consideration of their expe­rience and relaxation of age. Further, the mere unilateral statement in the Project Pro-forma, Phase-II that the Ministry of Agriculture will take necessary steps to transfer the Project personnel to the rev­enue budget did not also create absolute right in the respondent to be transferred to the revenue budget of the Government inasmuch as such transfer depended on certain important factors like potentiality and expediency of the Project and also availability of funds as stated above. The amendment made in the Phase-II Project Pro-forma by DPEC, in the fact and cir­cumstances of the case, was neither with­out any jurisdiction nor in excess of juris­diction. In this view, of the matter and also in view of the fact that Phase-II of the Project had already ended on 30.6.2006 impugned judgment is liable to be struck-down.
 
The appeals are accordingly allowed without costs.
 
Ed.