Lucky Zaman Vs. Bangladesh and others [4 LNJ (2015) 545]

Case No: Writ Petition No. 12348 of 2014

Judge: Abdur Rob,

Court: High Court Division,,

Advocate: Mr. Md. Zakir Hossain Ripon,Mr. Md. Motiur Rahaman,,

Citation: 4 LNJ (2015) 545

Case Year: 2015

Appellant: Lucky Zaman

Respondent: Bangladesh and others

Subject: Writ Petition, Accommodation of a Government Servant ,

Delivery Date: 2015-04-16


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Mirza Hussain Haider, J
And
Abdur Rob, J

Judgment on
16.04.2015
  Lucky Zaman
…Petitioner
Versus
Bangladesh and others.
. . . Respondents
 

Constitution of Bangladesh, 1972
Article 102
Allocation of accommodation to a government servant is an inseparable part of the government service. When a person is employed in any Government post, he becomes entitled to an accommodation and until such accommodation is provided he is paid house allowance in lieu of accommodation. Therefore, it is an irresistible conclusion of this Court that accommodation of a Government servant does come within the purview of ''terms and conditions'' of service of person in the service of the Republic or a Statutory Public Authority. . . . (7)
 
Rina Kana Mistry Vs Bangladesh and other, (writ petition No. 2085 of 2013), Sohel Ahmed Lian Vs. Bangladesh and others (writ petition No. 8631 of 2011) ref.
 
Mr. Md. Motiur Rahaman, Advocate
. . . For the petitioner

Mr. Md. Al-Amin Sarker, D.A.G with
Mr. K.M. Masud Rumy, A.A.G with
Mr. Zakir Hossain Ripon, A.A.G
. . . For the respondent-government

Writ Petition No. 12348 of 2014
 
JUDGMENT
Abdur Rob, J.
 
In this Writ Petition a Rule Nisi was issued under Article 102 of the Constitution of the Peoples Republic of Bangladesh, calling upon the respondents to show cause as to why the notice contained in Memo No. 140 (এপি)ডিএ/বরাদ্দ/০৩/২০৬ তারিখ: ১৫ ডিসেম্বর ২০১৪  (Annexure-E) issued under the signature of the respondent No. 3, requesting the petitioner to hand over the possession of House No. 99/26, Azimpur, China Building, Dhaka, should not be declared to have been passed without lawful authority and is of no legal effect and why they should not be directed to allocate the accommodation of House No. 99/26, Azimpur China Building, Dhaka to the petitioner as previously allocated to her husband and/or such other or further order or orders be passed as to this Court may seem fit and proper.

Facts, in brief, are that the petitioner was born on 06.06.1981 and she joined the service on 08.01.2009 as a sweeper in the Public Works Department, under the Ministry of Works, Government of Bangladesh and she will reach the age of retirement on 05.06.2040.  It is stated that the House No.99/26 China Building, Azimpur, Dhaka was allotted by an office order dated 10.04.2004 in the name of K.M. Kamruzzaman, husband of the petitioner and the house was handed over to him on 10.05.2004 (Annexure ''A''&''A-1''). The husband of the petitioner has been transferred by an office order dated 26.06.2014 from Dhaka to Jhalakathi. The petitioner then filed an application on 13.10.2014 to the Respondent No. 2 for allotment of the said house No. 99/26, China Building, Azimpur, Dhaka, in her name which was earlier allotted in the name of her husband (Annexure-B-1). The application has been duly received by the office of the Respondent No. 2. But the said respondent did not pay any attention to the said application. Rather during pendency of the said application the Respondent No. 3 issued an official order dated 05.11.2014 allotting House No, 99/6 and 12 of China Building, Azimpur to the petitioner. On the same date the Respondent No. 3 issued another official order allotting  House No. 99/26 of the same building (the disputed house) to one Md. Selim Sharif who was earlier allocated the House No. 99/6 and 12 of the same building (Annexure-''C''&''C-1''). On receipt of the information about the allotment of House No.99/26 of the  China Building in the name of one Md. Selim Sharif, the petitioner made 2 (Two) representations dated 11.11.2014 and 09.12.2014 for reviewing the decision for allotment of the House No.99/26 of the building in favour of the petitioner but the Respondents did not pay any attention to the said representations of the petitioner till date (Annexure-''D''&''D-1''). While the petitioner was waiting for positive response of the said representations to the utter dismay to the petitioner, the Respondent No. 3 has issued the impugned notice contained in Memo No 140 (এপি)ডিএ/বরাদ্দ/০৩/২০৬ তারিখ: ১৫ ডিসেম্বর ২০১৪ (Annexure- E) requesting her to hand over possession of House No. 99/26 to the Local enquiry office of the Public Works Department, within 7 (seven) days. It was like a bolt from the blue. Referring to an official order dated 10.04.2006 (Annexure-F) the petitioner claimed that on similar circumstances the authority has allocated a house to the wife of the previously allocated person (Annexure -''F''). Hence this Rule.

Mr. Md. Motiur Rahaman, the learned Advocate appearing on behalf of the petitioner submits that the petitioner is eligible and qualified to get allotment of accommodation of House No. 99/26 of the China Building previously allocated to her husband but later the allotment has been cancelled because of transfer of her husband from Dhaka to Jhalokathi and as the wife, the petitioner has legitimate expectation to get allotment of the said accommodation. He further submits that earlier a wife has been given allotment of her husband's allotted accommodation during her husband's life time and before retirement from the service, which is a regular practice and thus the petitioner is entitled to get allotment of House No. 99/26 of the building in place of prior allotment in the name of her husband. By making the aforesaid submissions, the learned Advocate for the petitioner prays for making the absolute.

Per contra Mr. K.M. Masud Rumy, the learned Assistant Attorney General, appearing for the respondent No. 1 by filing an affidavit-in-opposition denied the material allegations made in the Writ Petition, contending inter-alia that the Respondent No. 3 issued the impugned letter (Annexure- E) to hand over the possession of the petitioner's accommodation in compliance with the provision of law and there was no illegality or misuse of the statutory power, nor there is any malafide intention, colourable exercise of power by the said respondent. He further submits that the present writ petition is a misconceived one and the same is not maintainable as no writ lies against any action taken or decision made or an order passed by any Government authority in relation to any matter of a Government servant. There is a clear bar in article 117 of the Constitution to approach the High Court Division relating to the terms and conditions of service of the Government employees and the said Article unambiguously prescribes to go before the Administrative Tribunal for any remedy on all service related disputes. As such the writ petition is not maintainable. The learned Assistant Attorney General thus submits that admittedly, the petitioner is in the service of the Republic and the subject matter of the present writ petition is regarding allocation of an accommodation to the petitioner which falls within the meaning of ''Terms and Conditions'' of service of a government employee or a Statutory Public Authority. According to Article 117 of the Constitution, the Administrative Tribunal is the appropriate forum to seek remedy, if any, in respect of the terms and conditions of service of an employee in the service of the Republic and as such the writ petition under Article 102 of the Constitution is not maintainable. He finally submits that in a similar case of Rina Kana Mistry Vs Bangladesh and other, (writ petition No. 2085 of 2013) and in the case of Sohel Ahmed Lian Vs. Bangladesh and others (writ petition No. 8631 of 2011) the High court Division has taken views that on any dispute regarding terms and conditions of employee in the service of the Republic, appropriate forum is Administrative Tribunal Constituted under Article 117 of the Constitution, as such the writ petition under Article 102 of the Constitution is not maintainable. As such he prays that the Rule should be discharged.   

We have heard the learned Advocates of both sides, perused the Writ Petition, affidavit-in-opposition and the annexures appended thereto. We have also gone through the provision of relevant law and the decisions placed before us and considered the same.

Since the question of maintainability of the present Writ Petition has been raised by the learned Assistant Attorney General, this court is required to examine the said issue at first before embarking upon the substantial issue.
Admittedly, the petitioner is in the service of the Republic and the subject matter of the present writ petition is regarding allocation of a government accommodation in favour of the petitioner. Allocation of accommodation to a government servant is an inseparable part of the government service. When a person is employed in any Government post, he becomes entitled to an accommodation and until such accommodation is provided he is paid house allowance in lieu of accommodation.  Therefore, it is an irresistible conclusion of this Court that accommodation of a Government servant does come within the purview of '' terms and conditions'' of service of person in the service of the Republic or a Statutory Public Authority.

Under such circumstances we hold that this writ petition is not maintainable.

Accordingly, the Rule is discharged without any order as to costs.

However, the petitioner shall be at liberty to approach the proper forum prescribed in Article 117 of the Constitution for vindication of his rights and remedies, if any, in accordance with law.

Ed.