Case No: Civil Petition for Leave to Appeal Nos. 109. 136, 137 and 138 of 1996
Judge: Mustafa Kamal ,
Court: Appellate Division ,,
Advocate: Dr. M Zahir,M Amirul Islam,Syed Dastagir Hossain,Md. Serajul Haque,,
Citation: 49 DLR (AD) (1997) 147
Case Year: 1997
Appellant: Hafizuddin (Md) & 3 others
Respondent: Bangladesh Bank, represented by Governor & others
Subject: Administrative Law,
Delivery Date: 1997-04-03
Hafizuddin (Md) & 3 others
Bangladesh Bank, represented by Governor & others, 1997,
49 DLR (AD) (1997) 147
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Md Abdur Rouf J
BB Roy Choudhury J
Hafizuddin (Md) and three others……………………. Petitioners
Bangladesh Bank, represented by Governor and others…………….. Respondents*
April 3rd, 1997.
Administrative Tribunals Act (VII of 1981)
Petitioners have not been given any right under the Act to move the Tribunal to implement the judgment of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who fled cases not in a representative character or in the nature of a group or class action but as an individual applicant.
M Amirul Islam, Senior Advocate instructed by M Nawab Ali, Advocate-on-Record--For the Petitioner. (Civil Petition No. 109 of 1996).
Syed Dastagir Hossain, Advocate instructed by Shamsul Haque Siddique, Advocate-on-Record-For the Petitioner (in Civil Petition No. 136 of 1996).
Md. Serajul Haque, Advocate instructed by M Nawab Ali, Advocate-on-Record—For the Petitioner (in Civil Petition Nos. 137 & 138 of 1996).
Dr M Zahir, Senior Advocate, instructed by Md Aftab Hossain, Advocate-on-Record -—For Respondent No. 1 (in all the Petitions)
N H Khandker, Advocate-on-Record—For Respondent Nos. 2-6 (in all the Petitions).
Civil Petition for Leave to Appeal Nos. 109. 136, 137 and 138 of 1996.
(From the Judgment and order dated 23-11-95 passed by the Administrative Appellate Tribunal in Appeal No. 99 of 1994).
Mustafa Kamal J: 58 petitioners including the present 4 petitioners before us filed 58 separate cases before the Administrative Tribunal in 1992 praying for fixation of their seniority with all attendant financial and other benefits on and from 14-10-76, i.e. the date from when 73 Class-I Officers of Bangladesh Bank were directly recruited in pursuance of a Public Service Commission Notification dated 30-10-75, above the said 73 officers, and for correction of the seniority list prepared and published by the Bangladesh Bank on 31-3-90.
2. The Administrative Tribunal heard all the cases together and by a common judgment and order dated 19-5-94 dismissed all the cases on three preliminary grounds, namely, that the petitioners did not avail of the prevailing administrative remedy (some of them submitted representations to the Bank authorities but without waiting for the result thereof prematurely filed the cases), that the appointment of 73 officers having taken place in 1976 and 1977 all the applications are barred by limitation and finally the 73 officers above whom the petitioners prayed for fixation of seniority having not been made parties the applications are bad for non-joinder of necessary parties.
3. It appears that not all the 58 petitioners preferred appeals therefrom before the Administrative Appellate Tribunal. Only 5 of them, including the present 4 petitioners before us, preferred separate appeals before the Administrative Appellate Tribunal, which by a common judgment and order dated 23-11-95 dismissed all the five appeals substantially agreeing with the decision of the Administrative Tribunal.
4. The gist of the petitioner’s case is that, the recruitment to the posts of Class-I Officers of the Bangladesh Bank is subject to the maintenance of ratio of 2:1 between promotees and direct recruits. The ratio has a statutory force under the Establishment Manual and Circular Nos. 1-6 of August 29, 1968 which was protected by Article 7 of President’s Order No. 127 of 1972. Upon seeing an advertisement No. 108 dated 30-10-75 issued by the Bangladesh (First) Public Service Commission notifying that 80 Class-I Officers are going to be recruited in the Bangladesh Bank through open competition, one Atiqullah who was a confirmed Class-1 Officer like the petitioners filed Writ Petition No. 66 of 1976 in the High Court Division seeking for a direction that the said proposal for recruitment without reservation for the promotees and direct recruits in the ratio of 2:1 was without lawful authority and of no legal effect and also praying for a direction upon the respondents to comply with the recruitment policy in the aforesaid ratio. By judgment and order dated February 3, 1976 the High Court Division summarily dismissed the writ petition. The said Atiqullah preferred Civil Appeal No. 35 of 1976 before the Appellate Division, which by judgment and order dated August 4, 1977 allowed the appeal and gave the declaration ought for by the appellant. The respondent Bangladesh Bank preferred Civil Review Petition No. 1 of 1978 against the judgment and order of the Appellate Division dated the 4th August, 1977 and by judgment and order dated April 12 and 20, 1978 the Appellate Division dismissed the said review petition. As the Bangladesh Bank authorities were not implementing the judgment and order of the Appellate Division the said Atiqullah filed Administrative Tribunal Case No. 134 of 1987 before the Administrative Tribunal praying for fixation of his seniority above the directly recruited officers in pursuance of the said advertisement in 1975. By judgment and order dated 26-9-88 the Administrative Tribunal dismissed the case. Atiqullah preferred Appeal No. 38 of 1988 before the Administrative Appellate Tribunal which by judgment and order dated 5-6-89 allowed the appeal, thereby fixing his seniority above the 73 directly recruited Class-I Officers. The respondent- Bangladesh Bank filed CP No. 291 of 1991 in the Appellate Division against the said judgment and order dated 5-6-89 passed by the Administrative Appellate Tribunal, but by judgment and order dated 17-12-91 the Appellate Division dismissed the leave petition. Thereafter by a series of orders the said Atiqullah was given promotion to Class-I post with retrospective effect from 14-10-76, was confirmed in Class-1 post from 14-10-78, was given selection grade and further promotion with effect from 11-6-84 and was treated to be promoted to the post of Joint Director retrospectively with effect from 11.6.85. All the petitioners before the Administrative Tribunal stand at par with the said Atiqullah. After Atiqullah received the last order giving him his last promotion from 11-6-84 some of the petitioners sent representations to the Bangladesh Bank authority in 1992. Having received no reply thereto some of them served a legal notice on the respondents on 25-5-92 and thereafter filed the instant cases before the Administrative Tribunal on various dates.
5. Of the 4 petitioners before us only the petitioner in CP No. 137 of 1996 served a legal notice upon the respondents, but did not submit any representation to the authorities, but the other petitioners before us submitted both representation and legal notices.
6. Mr. M Amirul Islam, learned Counsel for the petitioners in all the petitions, submits that it was his contention before the Appellate Tribunal that the petitioners did not approach the higher administrative authority for decision in the matter or did not wait for their decision in the matter because they have not challenged any order, decision or action which is liable to be set aside, varied or modified by any higher administrative authority. They came for implementation of the judgment and order of the Appellate Division and the Administrative Appellate Tribunal given in Atiqullah’s case which is not capable of being deviated from, modified, varied or set aside by any organ of the State, let alone the highest administrative authority of the Bangladesh Bank. It is his submission that the Appellate Tribunal did not appreciate his submission and wrongly held that the terms and conditions of service can only be violated by an order or decision or action of an administrative authority and that the petitioners could not be aggrieved for violation of their service condition if no order or decision or action was taken/passed against them by an administrative authority. Mr. Amirul Islam further submits that an aggrieved person can come directly to the Administrative Tribunal without having to wait for a decision order or action with regard to the representations made, because the cause of action of the petitioners accrued when the Appellate Division and the Administrative Appellate Tribunal passed a judgment determining the policy of recruitment and seniority applicable not only to the said Atiqullah but also to the petitioners who are similarly placed as confirmed Class-II officers.
7. We have gone through the judgment and order of the Appellate Division passed in Civil Appeal No. 35 of 1976 and Civil Review Petition No. 1 of 1978. It appears to be clear to us not only from the said judgments but also from the prayer portion of the petitioner’s application before the Administrative Tribunal in the instant cases that the cause of action of the petitioners arose on October 30. 1975 when the Bangladesh (First) Public Service Commission issued an advertisement notifying that 80 Class-I Officers would be recruited in the Bangladesh Bank though open competition. The said Atiqullah did not file Writ Petition No. 66 of 1976 in the nature of a group or class action. He agitated his own case and in both Civil Appeal No. 35 of 1976 and Civil Review Petition No. 1 of 1978 the Appellate Division made it clear that insofar as the impugned advertisement affecting the said Atiqullah was concerned, he was entitled to the declaration sought for by him. The petitioners did not come by way of a writ when the said Atiqullah filed the said writ petition for his sole individual relief. They kept quiet and did not move any authority for redress of their grievances. The said Atiqullah started a second round of litigation by filing Administrative Tribunal Case No 134 of 1987 for fixation of his seniority That case ended in his favour finally on 17-12-91 when Civil Petition No. 291 of 1991 filed by respondent Bangladesh Bank was dismissed by the Appellate Division. The petitioners remained unmoved by these developments. It is only when the said Atiqullah was given a series of benefits by various orders dated 28-12-91, 24-2-92 and 26-2-92 that the petitioners woke up from their slumber and started submitting representations, legal notices and instituting cases before the Administrative Tribunal. It stares us in the face that their cause of action accrued long ago and even the impugned seniority list which they want to be modified was published by the Bangladesh Bank on 31-3-90. It is therefore absolutely incorrect to say on facts that the petitioners were not affected by any order, decision or action of any authority which is liable to be set aside, varied or modified by’ a higher administrate authority. They received the same blow which Atiqullah resisted. They now want to bask in the sunshine of Atiqullah’s success. The petitioners have not been given any right under the Administrative Tribunals Act, 1980 to move the Administrative Tribunal to implement the judgment and order of the Appellate Division and the Administrative Appellate Tribunal given in respect of a different person who filed successive cases not in a representative capacity or in the nature of a group or class action but as an individual applicant agitating his own individual grievances. We therefore do not think that Mr. Amirul Islam’s contentions are well-grounded either on facts or on law.
8. Mr. Islam next submits that an Administrative Tribunal can enforce fundamental rights and the petitioners wanted to enforce their fundamental rights which both the Tribunals below failed to advert to.
9. We have gone through the petitions of the petitioners before the Administrative Tribunal. Nowhere do we find invocation of any fundamental right for enforcement. Nor any question of fundamental right was agitated before the Tribunals below. As such, we do not see how this argument is available to the petitioners.
10. Mr. Islam next submits that in the scheme of Article 117 of the Constitution and the Administrative Tribunals Act, 1980 the Administrative Tribunal is not only required to decide a lis between the parties but is also required to set up the norms of administrative discipline. Once it is held by the Appellate Tribunal in Atiqullah’s Appeal Case No. 38 of 1988 that it is in consonance with law, equity and justice that Bangladesh Bank is responsible for resolving the complexities arising out of their own action, it is the further duty of the Administrative Tribunal to ignore technicalities and oversee that the Bangladesh Bank acts in terms of the policy guidelines settled by the Appellate Tribunal whose judgment has been confirmed by the Appellate Division in Atiqullah case.
11. As an exposition of a lofty principle, the argument is attractive but both the Tribunals below and this Division has the duty to administer the law as it is and not as it should be. The judgment of the Appellate Tribunal in Appeal No. 38 of 1988 has been merged with the judgment of the Appellate Division in civil Appeal No. 35 of 1976. As we noticed before, the reliefs given to the said Atiqullah were confined to him only and nowhere in the four corners of the said judgment and the judgment on review any extension of the relief has been made to all and sundry who are similarly placed with the said Atiqullah. If the said Atiqullah had obtained a judgment in a class or group action, perhaps Mr. Amirul Islam’s submissions would have had some validity.
12. Mr. Amirul Islam next submits that the Appellate Tribunal was wrong that the Tribunal cases were bad for non-joinder of 73 directly recruited Class-I Officers over whom the petitioners claimed their seniority. He submits that the Appellate Division in Civil Appeal No. 35 of 1976 has already found that the direct recruitment of 73 Class-I Officers variously in 1976 and 1977 in pursuance of the advertisement on October 30, 1975 was made in violation of the Establishment Manual and Circular of the Bank which has statutory force. In the face of such finding, he submits, it is an unnecessary exercise to make them parties to decide a matter which was decided long ago already against them.
13. In the present cases the petitioners are not agitating the question of recruitment but of seniority and are also asking for a modification in the seniority list prepared by the Bank on 31-3-90. Respondent Nos. 2-6 who are among the 73 directly recruited Class-I Officers have added themselves as parties in the Tribunal cases, but the rest have not. We do not think that it will be in consonance with the principle of natural justice to deny them a hearing when a question of seniority is being raised 15 years after their recruitment. The Appellate Tribunal rightly decided the point.
14. The Appellate Tribunal also decided that the cases are barred by limitation, but Mr. Amirul Islam has not made any submission on this finding.
15. We find no ground for interference.
The petitions are dismissed.