M. M. Shahidur Rahman Vs. Bangladesh and others, II ADC (2005) 768

Case No: Civil Appeal Nos. 14 and 65 of 1992

Judge: ATM Afzal ,

Court: Appellate Division ,,

Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. M Nurullah,,

Citation: II ADC (2005) 768

Case Year: 2005

Appellant: M. M. Shahidur Rahman

Respondent: Government of Bangladesh

Subject: Retrospective Effect,

Delivery Date: 1994-2-8

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Shahabuddin Ahmed CJ
M. H. Raman J
ATM Afzal J
Mustafa Kamal J
Latifur Rahman J
 
M. M. Shahidur Rahman
...........................Appellant (In Civil Appeal No. 14 of 1992)
Abdul Majid Sarkar
…………….......Appellant (In Civil Appeal No. 65 of 1992)
Vs.
Bangladesh and others
......................Respondents. (In Civil Appeal No. 14 of 1992)
Secretary, Ministry of Establishment Division and others
………..........Respondents. (In Civil Appeal No. 65 of 1992)
 
Judgment
February 8, 1994.
 
Mujibnagar Employees (Conditions of Service) of Rules, 1980
The Constitution
Article 27, 31, 117, 103(2) (a), 133
Rules can as well as be made by the President under Article 133 giving retrospective effect in the same manner like a law passed by the Parliament.
 
Cases Referred to-
Zainal Abedin Vs. Bangladesh 34 DLR (HCD) 77; B.S. Yadav Vs. State of Haryana AIR 1981 SC 561; Bishun Narain Vs. State of U.P. AIR 1965 SC 1567; J. Kumar Vs. Union of India (1982) 2 SCC 116.
 
Lawyers Involved:
Khandkar Mahbubuddin Ahmed, Senior Advocate, instruct­ed by Shamsul Hague Siddique, Advocate-on-Record - For the Appellant (In Civil Appeal No. 14 of 1992).
M. Nurullah, Senior Advocate (AJ Mohammed Ali, Advocate with him) instructed by Shamsul Hague Siddique, Advocate-on-Record - For the Appellant (In Civil Appeal No. 65 of 1992)
A. W. Bhuiyan, Additional Attorney General instructed by Md. Sajjadul, Advocate-on-Record - For Respondent Nos.1-3 (In Civil Appeal No. 14 of 1992)
Dr. Rafiqur Rahman, Senior Advocate instructed by Mvi. Md. Wahidullah,  Advocate-on-Record - For Respondent Nos. 4-11 (In Civil Appeal No. 14 of 1992)
Aftab Hossain, Advocate-on-Record - For the Respondent No. 4 (In Civil Appeal No. 65 of 1992)
Not represented - For Respondent Nos. 1-3 (In Civil Appeal No. 65 of 1992)
 
Civil Appeal Nos. 14 and 65 of 1992
(From Judgment and Order dated 12.2.92 and 26.7.92 in writ petition No.1374 of 1990 and writ petition No.51 of 1990 renumbered as W.P. No.1494 of 1991 respectively).
 
JUDGMENT
 
ATM Afzal J.
 
1. Civil Appeal No. 14 of 1992 has been filed as of right following certificate granted by the High Court Division under Article 103 (2)(a) of the constitution in Writ Petition No.1374 of 1990. Civil Appeal No. 65 of 1992 follows leave to appeal from judgment and order dated 26 July 1992 passed by the High Court Division in Writ petition No. 51 of 1990 (renumbered as W. P. No. 1404 of 1991) discharging the Rule.
 
2. The same question being involved in both the appeals, namely, the vires of the Mujibnagar Employees (Conditions of Service) Rules, 1980 dated 29 November 1980 made by the President under the pro­viso to Article 133 of the Constitution, (hereafter referred to as the Rules), they have been heard together and will be disposed of by this judgment.
In W. P. No. 1374 of 1990 the appellant obtained a Rule Nisi challenging the aforesaid Rules and Memo No.21(8) Admn-9/89/337 dated 10.6.90 issued by the Secretary (Administration) National Board of Revenue, respondent No.3, granting sen­iority to respondent Nos. 4-11 from their respective dated of appointment at Mujibnagar on the basis of the said Rules.
 
3. The Appellant was selected by the Bangladesh Public Service (Second) Commission for appointment as Inspector of Customs and Excise under the National Board of Revenue, Government of Bangladesh and he joined the said post on 12.1.1973. He alleged that respondent Nos. 4, 5, 8 and 10 were directly recruited qqas Inspector of Customs and Excise by the Collector of Customs and Excise. Respondent Nos. 7 and 11 were previously employed in the Consumers Supplies Corporation from where they were aborted as Inspectors of Customs and Excise. Respondent Nos. 6 and 9, were selected, like the appellant, by the Public Service Commission but were appointed later than the appellant.
 
4. The appellant stated that by an order of the National Board of Revenue a grada­tion list of the Inspectors serving in the three different zones of Bangladesh Dhaka, Khulna and Chittagong was prepared show­ing inter se seniority and the National Board of Revenue examined the same and finalized the Gradation list of the three regions in respect of the Inspectors of Customs and Excise appointed up to 1973. By the impugned Memo dated 10.6.90 of the National Board of Revenue respondent Nos.4-11 being Mujibnagar Employees were shown as seniors to the appellant counting the period of their service ren­dered at Mujibnagar during the war of liberation towards fixing seniority and treating the period of their absence before their join­ing in the present post after liberation as leave without pay although they were appointed afresh after the appellant's appointment without any connection with their appointment at Mujibnager giving them benefit of the aforesaid Rules.
 
5. The Rules was challenged on the ground of discrimination being violative of Article 27 of the Constitution, which pro­vides for equality before law. It was also challenged as being in excess of the author­ity of the President to make such Rules under Article 133 of the Constitution.
 
6. Respondent Nos. 1-3 and respondent Nos.4-11 contested the Rule by filing separate Affidavits-in-opposition. They made common grounds by asserting that the Rules was neither discriminatory nor made in excess of the authority of the President as alleged. It was contended that the said Rules was framed in recognition of the legitimate rights of the Mujibnagar Employees and to provide for counting the period of service rendered by them during the war of liberation towards fixation of seniority and for calculation of leave, incre­ment, pension and gratuity etc. and for treating the period of absence before their absorption as leave without pay. They also took the ground that in view of Article 117 of the Constitution read with the Administrative Tribunal Act 1980 the writ petition was not maintainable and the appellant being in the service of the repub­lic was obliged to approach the Administrative Tribunal for any relief, if at all.
 
7. As to the maintainability of the writ petition the High Court Division took the view that the vires of the Rules only could be examined and nothing else. All other matter sought to be impugned is within the exclusive jurisdiction of the Administrative Tribunal.
 
8. The High Court Division upon exam­ining the submissions made on behalf of the appellant assailing the Rules to be ultra vires of the Constitution held that the said Rules was not inconsistent with Article 27 nor was made in excess of the power conferred upon the President under Article 133 of the Constitution. The Rules was found to be a valid piece of law.
 
9. The Rule was, however, disposed of by judgment and order dated 12 February 1992 with the aforesaid findings and further upon granting a certificate as referred to above "as the case involve a substantial question of law as to the interpretation of Article 31 and 133 of the Constitution."
 
10. In W.P. No. 51 of 1990 out of which Civil Appeal No. 65 of 1992 has arisen a similar order of the National Board of Revenue dated 26.6.90 granting seniority to respondent No. 4 on the basis of the afore­said Rules and the Rules itself were impugned. By judgment and order dated 26 July 1992 the High Court Division discharged the Rule holding that the Rules in question was already found to be not ultra vires of the Constitution in the other writ petition (No. 1374 of 1990) and that the appellant could not get any relief as to his other prayer in view of Article 117 of the Constitution.
 
11. Being aggrieved by the aforesaid judgment and order the appellant came to this Division and obtained leave to appeal from the same submitting that a certificate as in the other writ petition (No. 1374 of 1990) ought to have been granted in this case also as it involves the same service Rules and further that the High Court Division wrongly held that the writ petition was barred under Art. 117 of the Constitution in respect of the other prayer.
 
12. Kh. Mahbubuddin Ahmed, learned Advocate for the appellant in Civil Appeal No. 14 of 1992, frankly submitted at the hearing of the appeals that in view of the recent judgment dated 28.10.93 pronounced by this Division in Civil Appeal Nos. 44-49, 62-63, 76-77/1992, he can no longer argue that the impugned Rules is violative of Article 27 of the Constitution and as such he is giving up his submission in that behalf. Mr. Nurullah, learned Advocate for the appellant in the other appeal, Civil Appeal No. 65 of 1992 also expressed the same view. Mr. Nurullah further conceded that the view taken by the High Court Division in his case that the order of the National Board of Revenue allegedly affecting the seniority of the appellants could not be challenged in the writ jurisdic­tion was correct and thus he had practically nothing to submit in support of the grounds on which leave was taken. Mr. Nurullah, however, submitted that he would adopt whatever submission was left to Mr. Mahbubuddin Ahmed after the concession he had made in his case.
 
13. It has been noticed that in the High Court Division Article 27 of the Constitution was specifically invoked for challenging the vires of the Rules and the High Court Division upon examining the matter found that the Rules was not viola­tive of Article 27 as alleged. While granting the certificate, however, the High Court Division mentioned Article 31 and not Article 27, which appears to be a case of inadvertence. Be that as it may since the learned Advocates have given up their case as to the Rules being inconsistent with any fundamental right the irregularity in the cer­tificate does not become very material.
 
14. The only contention raised by Mr. Mahbubuddin A'hmed now before us is that the President is not authorized to make any rule with retrospective effect like the pres­ent Rules under the proviso to Article 133 of the Constitution. In this connection he referred to the case of Zainal Abedin Vs. Bangladesh reported in 34 DLR (HCD) 77 where a special bench by a majority judg­ment declared rule 4 of the Government Servant (Seniority of the Freedom Fighters) Rules, 1979 to have been made without any lawful authority under Art. 133. Mr. Ahmed pointed out that this decision was cited in the High Court Division but the learned Judges did not consider the same on the ground that the judgment in that case had abated, against which an appeal was pend­ing in this Division, following imposition of martial law. Mr. Ahmed submitted that the judgment might have abated but he was relying on the reasoning of the majority judgment which took the view that any rule made under Article 133 can have only prospective effect since it attempts to regu­late the terms and conditions of service of persons appointed by and in the service of the Government of Bangladesh only.
 
15. We have examined the said decision and found that the view in the majority judgment was expressed

"in the back­ground of the fact that the petitioner and the respondent No. 4-11 were employees of erstwhile Government of Pakistan who sub­sequently joined the Government of Bangladesh."
 
16. Mr. Ahmed upon reading the judgment again agreed that the appellants and the respon­dents in the present case having been appointed by the Government of Bangladesh the said deci­sion was not quite relevant for his purpose. He, however, insisted that the President is not authorized to make rules under Article 133 giv­ing retrospective effect.
 
17. The learned Additional Attorney General submitted, in the first place, that the Rules was not retrospective and that in any event there is no prohibitions upon the authori­ty of the President for making rules with retro­spective effect.
 
18. Article 133 reads as follows:
 
133. Subject to the provisions of this Constitution Parliament may by law regulate the appointment and conditions of service of persons in the service of the Republic:
Provided that it shall be competent for the President to make rules regulating the appoint­ment and the conditions of service of such per­sons until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law.
 
19. From a reading of the aforesaid provi­sions it appears that Parliament has been vested with the authority to make law for regulating appointment and conditions of service of per­sons in the service of the republic. The proviso says that until the Parliament makes any law in that behalf it shall be competent for the President to make rules regulating the appoint­ment and the conditions of service of such per­sons. The rules so made shall have effect subject to the provisions of any law that may be made by the Parliament on the same subject. The purpose of making law by the Parliament and the purpose of making rule by the President under Article 133 is coextensive and there does not appear to be any limitation on the exercise of power either by the Parliament or by the President subject, of course, to the provisions of the Constitution. There is no doubt and it is not disputed by Mr. Ahmed also that the Parliament can make a law with retrospective operation. There is no reason therefore why in making rules under the Proviso to Article 133, which is done because the Parliament not having passed any law on the subject, the President cannot make them retrospective in operation. The rule making power is a legislative power and what can be done by passing a law by the Parliament can equally be done by the President by making rules under Article 133.
 
20. In the case of B.S. Yadav Vs. State of Haryana reported in AIR 1981 SC 561 the Court considered the proviso to Article 309 of the Constitution which is similar to our provi­sion under consideration and it was observed in the facts of that case that"
 
"The Government thus steps in when the legislature does not act. The power exercised by the Governor under the provi­so is thus a power, which the legislature is competent to exercise, but has in fact not yet exercised. It partakes of the characteristics of the legislative, not executive, power. It is legislative power."
 
21. Mr. Ahmed has not been able to pro­duce any authority in support of his contention that the power of the Parliament and that of the President under Article 133 are different except making reference to 34 DLR (HCD) 77 which he himself conceded was not applicable in the facts of the present case, the parties here having all been appointed after coming into force of the Constitution. It has, therefore, not been consid­ered necessary to examine the correctness of the majority view in that decision which may be considered in an appropriate case. That decision in any case is no authority for the present con­tention of Mr. Ahmed.
 
22. The learned Additional Attorney General submitted with reference to the aforesaid Indian case that the Rules made by the President have the force of law and therefore it can possess the same quality as can be attrib­uted to a law passed by the Parliament. He, however, submitted that the impugned Rules is not retrospective as alleged. It provides, inter alia, for counting the seniority in service of a certain class of employees, namely, Mujibnagar Employees who answered the said description on the date of the promulgation of the Rules in 1980. This is not a case of retro­spective operation of the Rules, he submitted. In this connection he cited two cases from the Indian Supreme Court. In Bishun Narain Vs. State of U.P. reported in AIR 1965 SC 1567, by one notification of 1957 the age of retirement of Government Servants was raised to 58 years but by a subsequent notification in 1961 the Government reduced the age of retirement to 55 years under Article 309 of the Constitution. The appellant who was appointed in 1933 when the age of retirement was 55 years challenged the notification of 1961 on various grounds including that the rule was retrospec­tive which could not be made. The Court nega­tive the contention and held that:
 
"All that the rule provides is that from the date it comes into force the age of retirement would be 55 years. It would, therefore, apply from that date to all Government servants, even though they may have been recruited before May 25, 1961 in the same way as the rule of 1957 which increased the age from 55 years to 58 years applied to all Government servants even though they were recruited before 1957."  
 
23. In another case J. Kumar Vs. Union of India reported in (1982)2 SCC 116 an argument was made that the rule not having been specifically declared to be retrospec­tive in operation its provisions could not be applied to the appellant inasmuch-as he had been inducted into the relevant cadre long before the promulgation of the new rules. The Court held, inter alia, that when a statutory rule governing seniority is issued in respect of a service, the said rule would govern the personnel in the service with effect from the date of its promulgation and in so giving effect to the rule in future, there is no element of retroactivity involved.
 
24. In the impugned Rules it is provided in rule 4 that subject to sub-rule (2) the period of service rendered by a Mujibnagar Employee under the Government of the People's Republic of Bangladesh at Mujibnagar during the war of liberation shall be counted towards fixation of his seniority and calculation of leave, incre­ment, pension and gratuity etc. The purpose of the rule is to include the period of service ren­dered at Mujibnagar for fixation of seniority etc. and the rule will be applicable to an employee who answers the description of a Mujibnagar Employee. The rule gives them a benefit prospectively upon a factual basis which might have been present in the past and thus viewed there appears to be considerable force in the contention of the learned Additional Attorney General that the impugned Rules is not retrospective.
 
25. However in view of our finding that rules can as well be made by the President under Article 133 giving retrospective effect in the same manner like a law passed by the Parliament, these appeals cannot succeed in any case.
 
In the result, therefore, both the appeals are dismissed without any order as to costs.
 
Ed.