Khalilur Rahman A.S. P. S. B Dhaka Vs. Md. Kamrul Ahsan and others

Case No: Civil Appeal No. 51 of 2000

Judge: Md. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mr. Mvi. Md. Wahidullah,A. K. M. Shahidul Huq,,

Citation: 3 ADC 2006 (AD) 18

Case Year: 2006

Appellant: Khalilur Rahman A.S. P. S. B Dhaka

Respondent: Md. Kamrul Ahsan and others

Subject: Administrative Law,

Delivery Date: 2005-7-5

Khalilur Rahman A.S. P. S. B Dhaka

Vs.

Md. Kamrul Ahsan and others, 2006, (AD)

3 ADC 2006 (AD) 18

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J 
 
Khalilur Rahman A.S. P. S. B Dhaka............................Appellant

Vs.

Md. Kamrul  Ahsan and others.................Respondents 
 
Judgment
5th July 2005.
 
The Administrative Tribunals Act (VII of 1981)
Section 4, 6S.

Constitution of Bangladesh, 1972
Articles 27,29,31,40,117(2)

Law is now settled that except on the limited scope a writ petition involving question of determination of the question of the matters relating to the term and condition of service of a person in the service of the Republic is not entertaiable untreatable by the High Court Division under Article 102 of the Constitution…………..(13)
 
Cases Referred to- 
Mujibur Rahman Vs. Government of Bangladesh 44 DLR (AD) 111; SP Sampath Kumar Vs. Union of India, AIR 1937 SC 386; JB Chopra Vs. Union of India AIR 1987 SC 357. 
 
Lawyers Involved: 
A. K. M. Shahidul Huq, Advocate-on-Record-For the Appellant. 
Mvi. Md. Wahidullah, Advocate-on-record-For the Respondent Nos. 3 & 4. 
Not Represented-Respondent Nos. 1, 2, 5-96. 

Civil Appeal No. 51 of 2000
(From the Judgment and Order dated February 6,2000 passed by the High Court Division in Writ Petition No. 227 of 2000) 
 
Judgment:              
                 Md. Ruhul Amin J.- This appeal, by one of the Writ Respondents, has been filed against an ad-interim order dated February 6, 2000 of the High Court Division in Writ petition No. 227 of 2000. The writ petition was filed by the Respondent Nos. 1-11 impugning legality of the action of the Government of Bangladesh, Inspector General of Police and Bangladesh Public, Service Commission in taking steps for pro­moting the writ Respondent Nos. 4-86 from the post of Assistant Superintendent of police to the post of Additional Superintendent of police including 51 offi­ciating Assistant Superintendents of police and seeking an order of stay till disposal of the Administrative Tribunal Case No. 344 of 1998. 

2.  The Writ petition was filed seeking the relief: 
    "A. A Rule Nisi calling upon the respondents No. 1-3 to show cause as to why their actions relating to further promotion of the officers mentioned in Annexure B should not be declared to have been taken without lawful authority and to be unconstitutional and violative of the petitioner's fundamental rights guarantee by Articles 27, 29, 31 and 40 of the Constitution."
            and for the ancillary relief for restrain­ing the Respondent Nos. 1-3 from promot­ing the officers whose names appear in Annexure-D to the writ petition till dispos­al of the Administrative Tribunal Case No. 344 of 1998. 

3. Facts in the background of which the writ petition was filed are that the Respondent Nos. 1-11 and others filed Administrative Tribunal Case No. 344 of 1998 before the Administrative Tribunal, Dhaka seeking the following relief's:
       "a) To issue a direction on the respondents No. 1 and 2 to refrain from granting any promotion to the respondents from ASP's to the Post of Additional S. P.
        b) Stay operation of the Notifications bearing No. MHA/Police-l/Apptt-2/98/822 dated 23.12.1998 and Notification No. MHA/ Police-1/Apptt.-12/98/800 dated 14/12/1998". 

4. When the said Administrative Tribunal Case was pending for hearing the Respondent Nos. 1-11 filed a petition before the Administrative Tribunal (AT) seeking an ad-interim order for restraining the Government of Bangladesh, represented by the secretary Ministry of Home Affairs and the Inspector General of Police from giving promotion to any of the Respondents of the rank of Assistant Superintendent of Police to the post of Additional Superintendent of Police and also sought for an order of stay of the operation of the notification dated. 23 12.1998 promoting some ASP's to the Post of Additional SPs and the Notification dated 14.12.1998 pro­moting the persons whose names appear in the said notification to the post of Assistant Superintendent of police. The application so filed seeking the relief of stay or injunc­tion was rejected by the AT by the order dated 12. 1. 2000 upon observing that the At "has no legal authority to pass any of such interim order". Thereupon the Respondent Nos. 1-11 filed the writ petition seeking the relief as quoted hereinbefore. The High Court Division by the order appealed (ad interim part) upon issuing Rule passed ad interim order, which runs as:
          "The Respondent Nos. 1-3 are restrained from granting further promotion to the officers mentioned in Annexure-D i.e. the Notification dated 23,12.1998." 

5. The petition for leave to appeal was filed upon taking exception to the ad inter­im order of the High Court Division restraining the writ Respondent from giving promotion to the persons whose names appear in Annexure 'D' to the writ petition i. e. notification dated 23.12.1998. 

6. Leave was granted to consider the contention that complain as to seniority being term and condition of service and thus being matter for adjudication within the exclusive jurisdiction of the Administrative Tribunal and the writ peti­tioners having had filed case before the Administrative tribunal for determination of their seniority and that case being still pending as such a writ petition for determi­nation of seniority under the provision of Article 117(2) of the constitution being barred and also in view of the decisions of the High Court Division, the High Court Division acted without jurisdiction in issu­ing the Rule in the writ petition only to grant interim order of injunction to the writ petitioners. It was also the contention that in the background of the facts that another Division Bench of the High Court Division by the Judgment on November 24, 1998 discharged the Rule in writ petition No. 647 of 1998 on the very question of determina­tion of seniority of ASPs in the background of the decision reported in 16 BLD (AD) 147 holding that the writ petition was not maintainable, the High Court Division acted without jurisdiction in entertaining the writ petition and issuing Rule as well as granting interim relief in the form of injunc­tion restraining writ Respondents from granting promotion to the post of Additional SP from the post of ASP.        

7. The Respondent Nos. 1-11 and others filed the AT case making averments that they were appointed to the BCS (police) Cadre with effect from January 20, 1991 having had qualified in the 12th BCS Competitive Examination, that the Inspector General of Police appointed some Inspectors of Police to officiate as Assistant Superintendents of Police on different dates between 1984 and 1990. At one time the Government approached the Bangladesh Public Service Commission for the purpose of regularization of the promotion of the Inspectors of police who were officiating as Assistant Superintendents of police. The Bangladesh Public Service Commission by its letter dated January 28, 1999 recom­mended 60 officiating Assistant Superintendents of Police for regular pro­motion as Assistant Superintendents of Police in the BCS (Police) Cadre. In the light of the recommendation of the Public Service Commission, Government by the Notification dated 14.12.1998 promoted the said 60 officiating Assistant Superintendents of Police in the BCS (Police) Cadre as Assistant Superintendents of Police with retrospective effect from
20.3.1991. Thereafter 60 Assistant Superintendents of Police by the notifica­tion-dated 23.12.1998 were promoted to the post of Additional Superintendents of police. 

8. In the background of the aforesaid state of the matter the Respondent Nos. 1-11 and others who were the officers of 1991 BCS (Police) cadre filed case before the AT challenging legality of the notifications dated 14.12.1998 and 23.22.1998 . As stat­ed hereinbefore while the case before the AT was pending for final hearing the Respondent Nos. 1-11 asserting that the authorities are taking steps for making further appointment on promotion in the post of Additional Superintendent of police. The application so filed seeking ad interim order was rejected by the AT and thereupon the Respondent Nos. 1-11 filed writ petition seeking relief more or less similar to the relief sought in the AT case. The High Court Division issued Rule in the said writ petition and thereupon passed an ad interim order restraining the authority from taking steps for promoting any of the Assistant Superintendent of Police, to the post of Additional Superintendent of Police. 

9. This Division in the case of Mujibur Rahman Vs. Government of Bangladesh and others reported in 44 DLR (AD) 111 considered the maintainability of the writ petition as regard condition and term of service of the persons in the service of the Republic which are matters for adjudication by the Administrative Tribunal and observed as follows: 
                   "Within its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice as well as for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising of sub-clauses (a), but such tribunals cannot, like the Indian Administrative Tribunals in Exercise of a more comprehensive jurisdiction under Article 323A (see SP Sampath Kumar Vs. Union of India, AIR 1937 SC 386 (Para 16) and JB Chopra Vs. Union of India AIR 1987 SC 357 (Para 2), strike down any law or rule on the ground of its constitutionality. A person in the service of the Republic who intends to invoke fundamental right for challenging the vires of a law will seek his remedy under Article 102(1), but in all other cases he will be required to seek remedy under Article 117(2). 
                  An aggrieved person may, out of desperation or just for taking a sportive chance in the summary writ jurisdiction, allege contravention of some fundamental right which may turn out to be frivolous or vexatious or not even remotely attracted in his case. The Court is, however, to be on guard so the great value of the right given under Article 102(1) is not frittered away or misused as a substitute for more appropriate rem­edy available for an unlawful action involving no infringement of any fundamental right." 

10. The undisputed position is that the Respondent Nos. 1-11 along with others filed Administrative Tribunal Case No. 344 of 1998 impugning the legality of the noti­fication dated 14.12.1998 and 23.12.1998. The relief's sought for in the AT case has already been mentioned hereinbefore, since the subject matter of the writ petition and the subject matter of the AT case identical, as such the writ petition so filed in the back­ground of the decision in the case of Mujibur Rahman and because of the provi­sion in provision in Article 117(2) of the constitution was not maintainable as because the petitioners in the writ petition sought relief relating to their service condi­tion, i.e. the matter of promotion to the high­er post particularly appointment of the offi­ciating Inspectors of police to the post of Assistant Superintendent of Police and the promotion of the Assistant Superintendent of Police to the post of Additional Superintendent of police which are exclu­sively matter for adjudication by the Administrative Tribunal. 

11. The vital point for consideration whether the High Court Division is compe­tent to entertain writ petition on the view that the  Administrative Tribunal  has  no power of granting ad interim relief and nor­mal procedure by way of appeal will take long time by which time the mischief will be done' and thereupon to entertain writ petition and to issue Rule as well as pass an ad interim order of injunction restraining the authority from taking action in a matter which is matter for adjudication by Administrative Tribunal or in a matter adju­dication whereof awaits before the Administrative Tribunal and the prayer for ad  interim   order  was   rejected  by   the Tribunal. 

12.  Sub-Section (1) of Section 4 of the Administrative Tribunal Act specifically provides that the said Tribunal shall have exclusive jurisdiction to hear and determine a case filed by a person in the service of Republic or of any statutory public authori­ty in respect of the terms and conditions of his service and some other relating matters. Sub-section (1) of section 6 of the Administrative Tribunal Act provides that the Administrative Appellate Tribunal shall have jurisdiction to hear and determine appeals from any order or decision of an Administrative Tribunal and sub-section (3) of section 6 provides that the Administrative appellate Tribunal may on appeal, confirm, set aside, vary or modify any order or decision of an Administrative Tribunal. There is no provision in the Administrative Tribunal Act authorizing the Administrative Tribunal or the Administrative Appellate Tribunal to grant any ad interim order restraining the Government or other functionaries from taking any action relating to terms and con­ditions of the service of a person in the serv­ice of the Republic or of any statutory public authority while case has been filed by a person of the category as mentioned as regard the matters stated hereinbefore. Article 117(2) of the Constitution provides that the matters falling within the jurisdic­tion of the Administrative Tribunal Constituted under Article 117(1) of the Constitution will not be entertain able by any other Court. As has already been motioned that in the case of Mujibur Rahman it has clearly been stated in the background of what circumstance inspite of the bar Article 117(2) of the Constitution a writ petition can be filed under Article 102 of the constitution and can be entertained by the High Court Division even the con­tention raised and adjudication sought relates to term and condition of service of a person in the service of the Republic. 

13. Therein it has been held that except on the limited ground i.e when the vires of the law is challenged or a relief by way of striking down of a particular law on the ground of its constitutionality sought, writ petition by the High Court Division can be entertained or in other words a person in the service of the Republic can file a writ peti­tion on limited grounds as regard the mat­ters, even though the same relates to the condition of service. So law is now settled that except on the limited scope a writ peti­tion involving question of determination of the question of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable untreatable by the High Court Division under Article 102 of the Constitution. When a writ petition relating solely to terms and conditions of the service of a person in the service of the Republic is not maintainable before the High Court Division, the said Division would be in error, as in the instant case was in error, in entertaining the writ petition on the view that the Administrative Tribunal has no power to grant ad interim relief and that in the absence thereof there is likely hood of causing mischief by taking certain action by the authority. This being the position the High Court Division was in error in passing the ad interim order restraining the authority from taking steps for the promotion of the Assistant Superintendent of Police to the post of Additional Superintendent of police. It is seen from the provision of section 6(1) of the Administrative Tribunal Act that an appeal lies from an order of the Administrative Tribunal. In the instant case the Administrative Tribunal refused the prayer for ad interim order restraining the authority from granting promotion to the Respondent. So the Respondent Nos. 1-11 herein if were aggrieved by the order so passed by the Administrative Tribunal they were required as per provision of section 6(1) of the Administrative Tribunal Act to file appeal, if any, they would have though fit. But instead of doing that they were not well advised to file the writ petition seeking the relief identical to the relief sought in the Administrative Tribunal case with the sole object of having an ad interim order restraining the authority from taking steps for the promotion of the Assistant Superintendent of police to the post of Additional Superintendent of Police. 

14. In the background of the discussions made hereinabove we find merit in the appeal. 
Accordingly the appeal is allowed. 

There is no order as to costs.  

Ed.