Case No: Civil Appeal Nos. 34 and 35 of 1996
Judge: Latifur Rahman ,
Court: Appellate Division ,,
Advocate: Mr. A. F. Hassan Ariff,Mr. Mahbubey Alam,MR. SR Pal,,
Citation: 54 DLR (AD) (2002) 97
Case Year: 2002
Appellant: Mahbubur Rahman
Respondent: Taslimuddin Ahmad
Subject: Administrative Law,
Delivery Date: 1999-8-8
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
AMM Rahman J
Mahmudul Amin Choudhury J
Mahbubur Rahman and others
Taslimuddin Ahmad and others
August 8, 1999.
The Bangladesh Civil Service Seniority Rules, 1983, Rule 3
The case filed before the Administrative Tribunal was not maintainable in law as necessary parties who were adversely affected by the order were not brought before the court in accordance with law.........(10)
SR Pal with AR Yousuf Senior Advocates instructed by Shamsul Haque Siddique, Advocate-on-Record— For the Appellants.
Hasan Ariff Advocate, instructed by Md Nawab Ali, Advocate-on-Record—For Respondent No. 1.
Not represented—Respondent Nos. 2-4.
Mahbubey Alam, Additional Attorney-General, instructed by Sharifuddin Chaklader Advocate- on-Record—For the Appellant (In Civil Appeal No. 35 of 1996).
Civil Appeal Nos. 34 and 35 of 1996.
This appeal by the appellants by leave is against the judgment and order dated 11-2-1996 of the Administrative Appellate Tribunal, Dhaka passed in Appeal No. 105 of 1993 dismissing the appeal thereby affirming the judgment and order of Administrative Tribunal, Dhaka passed on 6-9-1993 in Administrative Tribunal Case No. 51 of 1990.
2. Civil Appeal No. 34 of 1990 has been filed by 26 appellants who were not made parties either before the Administrative Tribunal or before the Administrative Appellate Tribunal and Civil Appeal No. 35 of 1996 has been filed by Bangladesh. Both the appeals are disposed of by a common judgment.
3. Respondent No. 1 filed the aforesaid Administrative Tribunal case impleading the Government of Bangladesh and one Babul Rabbani as respondent No. 2 describing him as.
Respondent No. 1’s case is that, he was appointed as Inspector of Taxes on 8-10-1968 on the basis of Competitive Examination. He duly passed departmental examination in higher cadre and was promoted to the rank of Extra-Assistant Commissioner of Taxes on 5-10-198 1. According to the Cadre Rules, an Extra-Assistant Commissioner of Taxes becomes eligible for promotion to the rank of Assistant Commissioner of Taxes on completion of 3 years of service. Respondent No. 3 completed 3 years of service on 5-10-1984 as Extra-Assistant Commissioner of Taxes. According to the recruitment Rules, one- third posts of Assistant Commissioners are to be filled up by promotion from the Extra-Assistant Commissioner and two-third posts are to be fill up by direct recruitment. Although respondent No. 1 became eligible for promotion on 5-10-1984 with a vacant post available in the quota his case was not taken for promotion. On the contrary, Mr Babul Rabbani was appointed directly as Assistant Commissioner of Taxes on 15-7-1985 and on 21-1-86, 28 Assistant Commissioners of Taxes were directly appointed by violating the quota rules. Respondent No. 1 was also granted time scale and there was no hurdle for promotion of respondent No. 1 as Assistant Commissioner of Taxes on 15-7- 1985. He further stated that if he is given promotion from 15-7-1985 in that case he would be senior to the directly recruited 29 Assistant Commissioner of Taxes. Hence he filed case for directing the Government to give retrospective effect to this promotion with effect from 15-7-1985.
4. Government of Bangladesh contested the case asserting that BCS (Taxation) Recruitment Rules, 1981 provides for two-third posts of Assistant Commissioner to be filled up by direct appointment while the rest one-third post are to be filled up by promotion from Extra-Assistant Commissioners. On the basis of competitive examination, on 18-7-1985 and 21-1-1986, 29 posts of Assistant Commissioners were filled up by direct appointment. Respondent No. 1 was promoted on 20-12-1987 to the rank of Assistant Commissioner on the recommendation of the Public Service Commission. There is no scope for giving seniority to respondent No. 1 above the directly recruited 29 Assistant Commissioners of Taxes. Accord to the Government, respondent No. 1 is entitled to his seniority from the date on which he was appointed as Assistant Commissioner of Taxes. Further, the post of Extra-Assistant Commissioner of taxes is not a Class 1 post. Hence respondent No. 1’s case is liable to be dismissed.
5. Administrative Tribunal allowed the case and granted seniority to respondent No. 1 above Babul Rabbani and the present 26 petitioners appointed directly on 15-7-1985 and 21-1-1986 giving retrospective effect to the promotion of respondent No. 1 as Assistant Commissioner of Taxes and allowed all attending benefits from that date. The Government was further directed to correct the seniority list accordingly, showing respondent No. 1 as promoted to Assistant commissioner of Taxes on 15-7-1985.
6. The said order of the Administrative Tribunal was affirmed by the Administrative Appellate Tribunal after dismissing the appeal of the Government. Before the Administrative Appellate Tribunal the Government raised the question of non- joinder of necessary parties, namely, 29 directly recruited Assistant Commissioners of Taxes who have been directly affected by the impugned judgment and order.
7. On the submission of the learned Additional Attorney-General leave was granted to consider in Civil Appeal No. 34 of 1996, the question of maintainability of the case when respondent No. 1 did not implead 29 persons who were given seniority to him and the said 29 persons are directly affected by the order of the Tribunal, as such the said 29 persons are necessary parties and in their absence the case is not maintainable and the Tribunals below acted contrary to law in not dismissing the case on the ground of maintainability alone.
8. In Civil Appeal No. 35 of 1996, leave was granted on the submission of Mr. Pal that directly appointed Assistant Commissioners of Taxes suffer adversely without impleading them as parties who are necessary parties in the case. As a matter of fact leave was granted in both the cases to consider the question of maintainability of the Administrative Tribunal case itself for non inclusion of necessary parties.
9. Respondent No. 1 was appointed as Inspector of Taxes on 8-10-1968 and thereafter he was promoted to the rank of Extra-Assistant Commissioner of Taxes on 5-10-1981. His case is that on completion of three years of service he was eligible to be promoted to the rank of Assistant Commissioner of Taxes but he was not promoted. That is the cause of action of respondent No. 1 to file the application before the Administrative Tribunal. His further case is that according to the recruitment rules, one-third post of Assistant Commissioner of Taxes are to be filled up by promotion from Extra-Assistant Commissioner of Taxes and two-third posts are to be filled up from direct recruitment. Admittedly, he is a promotee so his case is to be considered on the basis of promotion by one-third posts of Extra-Assistant Commissioner of Taxes. In the meanwhile after competitive examination on 18-7-1985 and 21-1- 1986, 29 Officers were directly recruited as Assistant Commissioners of Taxes which is a Class I post, whereas respondent No. 1 was an Extra- Assistant Commissioner of Taxes on 5-10-1981 which was a Class II post.
10. The Administrative Tribunal case was filed by respondent No. 1 without impleading the 29 directly recruited Assistant Commissioners of Taxes who were recruited by competitive examinations. Against those persons, respondent No. 1 has positive grievance that direct recruits were given seniority to respondent No. 1 while respondent No. 1 is entitled to his seniority above them. In that view of the matter, it is undisputed that 29 Assistant Commissioners of Taxes who are directly recruited are going to be adversely affected by the order of the Tribunals below and in that view they were necessary parties in the case. The Tribunals below, in fact, gave relief to respondent No. 1 without hearing 29 directly recruited officers and without giving them any opportunity to place their case. Thus, the Administrative Tribunal case is not maintainable and the Tribunal below acted contrary to law in not dismissing the case on the ground of maintainability alone.
11. Mr. SR Pal, learned Advocate appearing on behalf of the direct recruits of Assistant Commissioners of Taxes, submits that section 3 of the Bangladesh Civil Service Seniority Rules, 1983 which speaks of principles of seniority interse of the members of the service cadre shall be counted from the date of appointment in the lowest post of that service. The direct appointees were recruited in 1985 and at that time respondent No. 1 was an Extra-Assistant Commissioner of Taxes and, as such, the question of his regular appointment in the lowest post of that service does not arise. Be that as it may, we hold that the case filed before the Administrative Tribunal is not maintainable in law as necessary parties who were adversely affected by the order were not brought before the court in accordance with law. The cause title of the application of respondent No. 1 clearly shows that 29 directly recruited Assistant Commissioners of Taxes were not at all made parties in the case and no notice was individually served on them.
For the reasons stated above, both the appeals are allowed without any order as to costs.