MA Gafur and anr. Vs. Govt. of BD rep. by Sec., Min. of Defence and another

Case No: Civil Petition for Leave to Appeal No. 975‑976 of 2001

Judge: Abu Sayeed Ahammed ,

Court: Appellate Division ,,

Advocate: KS Nabi,,

Citation: 56 DLR (AD) 205

Case Year: 2004

Appellant: MA Gafur and anr.

Respondent: Govt. of BD rep. by Sec., Min. of Defence and another

Subject: Administrative Law,

Delivery Date: 2002-7-24

MA Gafur and anr.

 Vs.

Govt. of BD rep. by Sec., Min. of Defence and another, 2004, (AD)

56 DLR (AD) 205

 

Supreme Court
Appellate Division
(Civil) 
 
Present:
Md. Ruhul Amin J
Syed JR Mudassir Husain J
AS Ahammed J 
 
MA Gafur and another..................Petitioners
 
Vs.
 
Government of Bangladesh, represented by the Secretary, Ministry of Defence and another............Respondents*
 
Judgment
July 24, 2002.
 
The Public Servants (Retirement) Act, 1974 (XII of 1974)
Section 9(2)
The Government Servants (Discipline & Appeal) Rule, 1976
Rule 3

Retirement after completion of 25 years of service with full pension benefit is not a punishment and it is altogether different from dismissal. Removal or compulsory retirement and any such punishment is governed under rule 3 of the Government Servants (Discipline & Appeal) Rule, 1976.
 
Cases referred to- 
Habibullah Khan vs. Shah Azharuddin Ahmed and others, 35 DLR (AD) 72, Dr. Nurul Islam vs. Government of Bangladesh, 33 DLR (AD) 201.
 
Lawyers Involved: 
KS Nabi, Senior Advocate, instructed by Md. Aftab Hossain, Advocate‑on‑Record‑For the Petitioners.
Not represented‑The Respondents. 

Civil Petition for Leave to Appeal No. 975‑976 of 2001.
(From judgment and order dated 10‑8‑2000. passed by the High Court Division in Writ Petition Nos. 4188 of 1999 and 181 of 2000).
 
Judgment:
 
               Abu Sayeed Ahammed J.- Both these leave petitions have arisen out of the same impugned judgment and order dated 10‑8‑2000 passed by a Division Bench of the High Court Division whereby it discharged the Rules. Since a common question of law is involved both the leave petitions are taken up together for hearing and are disposed of by this judgment. 

2. Leave Petition No. 975 of 2001 has been preferred by the writ petitioner MA Gafur in Writ Petition No. 4188 of 1999 discharging the Rule and consequent thereupon upholding the order of retire­ment passed against the writ petitioner under section 9(2) of the Public Servants (Retirement) Act, 1974 (XII of 1974). Similarly, writ petitioner Md. Basirullah Tapader in Writ Petition No. 976 of 2000 moved unsuccessfully in that writ petition and the Rule was discharged upholding the order of retirement passed against the writ petitioner under the aforesaid sections of Public Servants (Retirement) Act, 1974 (XII of 1974). 

3. The petitioner MA Gafur, joined as Lower Division Clerk on 1st July, 1965 in the Military Estate Office of erstwhile East Pakistan Circle/Dhaka Cantonment under the Ministry of Defence and, according to the said petitioner, he was running his service to the best. of his capacity and honestly and he was promoted to the post of the Assistant Director, Administration, Class‑1, Military Lands of the Cantonment, by notification dated 30th November, 1995 and thereafter, he was promoted to the post of the SDO in the same Administrative Department. But some interested quarters, as it is submitted by the petitioner, raised the question as to promotion of the petitioner to the post of SDO from non‑technical staff i.e. UDC and Head Clerk. An investigation was initiated by the Ministry of Defence of the Government of Bangladesh. 

4. In the case of Md. Basirullah Tapader, who also joined as a Lower Division Clerk under the same respondent No. 2 on 9th October, 1970 in the Military Estate Office in the Dhaka Cantonment and, according to him, he was also rendering his service to the best of his capacity and honesty, lastly he was promoted to the post of SDO as a non‑technical staff being the UDC and the Head Clerk. In the similar manner, as was in the case of said MA Gafur, an inquiry was initiated upon the allegations made by some interested quarter that they along with some others were wrongly promoted to the post of SDO. The respondent No. 1 was directed vide memo dated 24‑12‑97 to take disciplinary action against the officers who were responsible for promoting the writ petitioners and others to the post of SDO. 

5. The respondent No. 2, Director, Military Lands and Cantonment, Dhaka Cantonment report­ed on the basis of the said letter on 27‑2‑98 stating, inter alia, that the persons responsible for promoting the petitioners and others to the post of SDO were not available and some Of the, promoted officers were holding office higher than the post of the respondent No. 2 and, as such., it was not amenable for taking action against them. He further stated that the promotional committee took steps for promotion of them for the public interest as there was dearth of efficient staff to manage the expanded directorate after liberation of Bangladesh. But the proceeding against the petitioners was not stopped and the authority was not satisfied. Finally, the petitioners and two others were retired from government service under section 9(2) of the Public Servants (Retirement) Act, 1974 by the impugned notification dated 18‑10‑99 issued under the signature of the Secretary, Ministry of Defence calling in question that notification. The petitioners moved the High Court Division under its Writ Jurisdiction and obtained the Rules. 

6. The petitioners tried to prove in the writ case that the promotion to the post of SDO was made in accordance with a valid circular by the authority and in any way, none of them were responsible for that promotion and therefore that could not be a ground for their retirement from service after completion of more than 25 years of their service without any stig­ma or fault with them, under section 9(2) of Public Servant Retirement Act, 1974. This provision of law provides that the Government has got authority to retire a public servant on completion of 25 years of service without assigning any reason.

7. Sub‑section 2 of section 9 of Public Servants (Retirement) Act, 1974 reads as follows:     
            "The Government may, if it considers, necessary in the public interest so to do, retire from service a public servant at any time after he has completed twenty‑five years of service without assigning any reason." 

8. We have heard the submission of the learned Counsel for the petitioners and perused the judg­ment impugned herein. It appears that the High Court Division relied on the decision in the case of Habibullah Khan vs. Shah Azharuddin Ahmed and others reported in 35 DLR (4D) 72, wherein the Appellate Division held that a retirement with full pension benefits after completion of 25 years of service is not a punishment nor does it contain any stigma and it is altogether different from dismissal, removal or compulsory retirement which are differ­ent kinds of punishment as specifically described in Rule 3 of the Government Servants (Discipline and Appeal) Rules, 1976. High Court Division also considered the decision in the case of Dr. Islam vs. Government of Bangladesh, 33 DLR (AD) 201. 
 
        In the aforesaid premises, we are of the view that the High Court Division has considered the case of the petitioners quite legally and rightly dis­charged the Rules. We therefore, find no legal infirmity in the impugned judgments of the High Court Division calling for interference. 

Accordingly, the petitions are dismissed. 

Ed.