Md. Abdul Bari and others Vs. Bangladesh and others, 4 LNJ (2015) 602

Case No: Writ Petition No. 1748 of 2005

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Advocate: Dr. M Zahir,Mr. Abdur Razzaq,Mr. Shah Muhammad Ezaz Rahman,Mr. Imran A. Siddiq,Mr. Md. Belayet Hossain,,

Citation: 4 LNJ (2015) 602

Case Year: 2015

Appellant: Md. Abdul Bari and others

Respondent: Bangladesh and others

Subject: Writ Petition, Legitimate Expectation ,

Delivery Date: 2010-05-13

Md. Abdul Bari and others Vs.  Bangladesh and others
4 LNJ (2015) 602
HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Syed Refaat Ahmed, J
And
Moyeenul Islam Chowdhury, J


Judgment on
13.05.2010
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Md. Abdul Bari and others
…Petitioners
Versus
The Government of Bangladesh and others
. . . Respondents
 
Constitution of Bangladesh, 1972
Article 27
Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess but which are lacking in others. . . . (54)

Constitution of Bangladesh, 1972
Article 31
The term “equal protection of law” is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. . . . (54)
 
Constitution of Bangladesh, 1972
Article 102
A promise made in the shape of a statement of policy or a procedure regularly adopted by the authority may give rise to what is called “legitimate expectation”, that is, expectation of a kind which the Court now enforces. Legitimate expectation gives the applicant sufficient “locus standi” for judicial review and in most cases, the legitimate expectation is confined to the right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine operates in the domain of public law and in an appropriate case constitutes substantive as well as procedural rights. The statement or practice giving rise to the legitimate expectation must be sufficiently clear and unambiguous, and expressed or carried out in such a way as to show that it was intended to be binding. . . . (55)

Constitution of Bangladesh, 1972
Article 102
The legitimate expectation must stem from a promise in the shape of a statement of policy or a procedure regularly adopted by the authority. . . . (56)

Constitution of Bangladesh, 1972
Article 102
There is no dispute that those recommendations can not be enforced through the Writ Jurisdiction of the High Court Division under Article 102 of the Constitution in that they do not create any legal right in favour of the petitioners....(57)

Constitution of Bangladesh, 1972
Article 102(2)(a)(i)
The second part of clause (2)(a)(i) of Article 102  of the Constitution  confers power on the High Court Division  to issue  writs in the nature of Mandamus to compel a person  performing  functions in connection with the affairs  of the Republic or a local authority  to do  something that he is required by law to do. Such person must hold office of a public nature, that is, an office under the Constitution or a law relating to the affairs of the Republic or of a local authority. The Writ of Mandamus will be issued only when that public functionary has a public duty under a law and he refuses to perform his legal duty; the duty may be judicial, quasi-judicial or purely administrative.  The duty sought to be enforced must be a duty of a public nature, that is, a duty created by the provisions of the Constitution or a statute or some other rule of common law or some rules or orders or notifications having the force of law. The public duty need not, however, be always a statutory duty. No Writ of Mandamus will be issued to compel the Government to implement its policy nor will it be issued merely on consideration of equity. . . . (58)

Bangladesh Biman Corporation represented by the Managing Director Vs. Rabia Bashri Irene and others, 55 DLR (AD) 132; Sheikh Abdus Sabur Vs.  Returning Officer, District Education Officer-in-Charge, Gopalganj & others, 41 DLR(AD) 30; Md. Ismail Hossain Vs.  Government of Bangladesh and others, 27 DLR(AD) 353; Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch and others Vs. Union of India and others, AIR 1987(SC) 2342; Kerala Hotel and Restaurant Association and others Vs. State of Kerala and others, AIR 1990 (SC) 913;  Dr. A.K. Jain and others Vs. Union of India and others, 1987 (Supp) SCC 497; Talekhal Progressive Fishermen Co-operative Society Limited Vs. Bangladesh and others, 1981 BLD (AD) 103; Hazerullah Vs. Assistant Commissioner, Board of Management of Abandoned Property and others, 55 DLR (AD) 15; Yunus Mia (Md) and others Vs. The Secretary, Ministry of Public Works & Urban Development, Government of Bangladesh and others, 45 DLR (HCD) 498; The Secretary, State of Karnataka and others Vs. Umadevi (3) and others, (2006) 4 SCC 1 and the Chief Commissioner of Income Tax and others Vs. Susheela Prasad (SMT) and others (2007) 12 SCC 402. Bangladesh Vs.  Abdul Mannan and others, 29DLR(SC)17 ref.

Dr. M. Zahir with
Mr. Abdul Matin Khasru and
Mr. Shah Muhammad Ezaz Rahman, Advocates
. . . For the petitioners.

Mr. Abdur Razzaq with
Mr. Imran A. Siddiq and
Mr. Md. Belayet Hossain, Advocates
....For the respondent no.2.
 
Writ Petition No. 1748 of 2005
 
JUDGMENT
Moyeenul Islam Chowdhury, J:
 
A Rule Nisi was issued calling upon the respondents to show cause as to why the petitioners being employees of Bangladesh Biman Flight Catering Centre (BFCC) should not be governed by the Bangladesh Biman Corporation Employees (Service) Regulations, 1979 and absorbed as such in the service of Biman from the dates of their respective appointments entitling them to  retirement and other benefits in line with those of the permanent Biman employees working in BFCC and why clause (d) of the Bangladesh Biman Corporation Organization Order No. 13 of 1989 dated 11.11.1989 (Annexure-‘D’) issued under the signature of the respondent no. 3 purporting to discriminate between the regular employees of Bangladesh Biman Corporation who were transferred from the Cabin Facilities Department to the newly-established BFCC and the newly-recruited employees of BFCC should not be declared to be without lawful authority and of no legal effect and why the respondents should not be directed to regularize the service of the petitioners  in Biman pursuant to the recommendations of various inquiry committees formed from time to time with all Biman service facilities and allowances including retirement benefits and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
The petitioners’ case, as set out in the Writ Petition, in short, is as follows:
The petitioners are the employees of the Biman Flight Catering Centre (BFCC) appointed by the BFCC Management against different posts on contractual basis. Anyway, initially BFCC was established as a project approved by the Executive Committee of the National Economic Council (ECNEC) in its meeting held on 16.08.1988. In course of time, BFCC became an integral part of Bangladesh Biman which was established under the Bangladesh Biman Corporation Ordinance of 1977. With the establishment of BFCC in 1989 at Zia International Airport, now renamed as Hazrat Shah Jalal International Airport, Biman Management abolished the Cabin Facilities Department of Bangladesh Biman which consisted of two sections, namely, Field Service and Catering Section by Organization Order No.13 of 1989 dated 11.11.1989 issued under the signature of the respondent no.3 and thereby transferred all the existing employees of the Cabin Facilities Department to BFCC. Clause (b) of the said Organization Order No. 13 of 1989 provides that the employees transferred to BFCC would be functionally and administratively accountable to BFCC Management and on transfer, their service would be governed by the Bangladesh Biman Corporation Employees (Service) Regulations, 1979 (in short, the Regulations of 1979) and they would continue to receive salaries, allowances and other facilities of Biman as per their terms of engagement. Although the employees transferred to BFCC are entitled to all Biman facilities and benefits as per clause (b) of the Organization Order No. 13 of 1989, but clause (d) of the said Organization Order discriminates the newly-recruited employees of BFCC in the sense that they will be governed by BFCC rules and service regulations and that Biman service facilities and benefits will not be admissible to them.
 
Under the administrative and financial policy formulated by BFCC Board, BFCC Management has been recruiting employees since 1990 against different posts on contractual basis within the permanent organizational set-up of BFCC approved by the Biman Authority. The petitioners being employees of BFCC were primarily appointed on contractual basis for a period of 3(three) or 5(five) years in different capacities. Subsequently, their contractual periods were extended or renewed for further periods. In this way, some of the petitioners have already completed about 15 (fifteen) years of service in BFCC. However, initially the petitioners were paid consolidated salaries by the authority and afterwards pursuant to the declaration of the new National Pay Scale by the Government in 1991, BFCC Management determined their Pay Scale in line with the Pay Scale applicable to the permanent Biman officers/employees. The petitioners received their salaries accordingly. By the Administrative Order No. 02 of 1998 dated 21.06.1998, BFCC Management approved the implementation of the new National Pay Scale of 1997 to all BFCC contractual employees in line with the Biman Administrative Order No. 07 of 1998 dated 05.04.1998. The Administrative Order No. 02 of 1998 came into force with effect from 01.07.1997 and since then, the petitioners had been receiving their salaries in the new Pay Scale of 1997. But unlike the permanent Biman officers/employees, they are not entitled to other allowances and retirement benefits like pension, provident fund, medical facility etc. On perusal of the appointment letter of a contractual employee and that of a permanent Biman employee, it appears that though both the employees have been appointed in the same Pay Group and primarily on contractual basis under almost identical terms and conditions and are being paid in the same Pay Scale, the terms and conditions of the permanent employee’s service will be governed by the Rules of 1979  and his service will be regularized with effect from the date of his contractual appointment subject to his satisfactory performance during the period of contract. On the other hand, the terms and conditions of the contractual employee’s service will be governed as per the service agreement and the Orders, Instructions etc. issued from time to time by BFCC. The BFCC Board was reconstituted by the Office Order No. 07 of 1995 dated 29.03.1995 wherein it was stated that the Board would, inter alia, frame Service Rules or Regulations for the newly-recruited contractual employees; but unfortunately no Service Rules or Regulations have yet been framed by the BFCC Board. In the mean time, by issuing various Administrative Orders, the BFCC Management approved/introduced different policies and service benefits for the contractual employees like enhancement of salaries and allowances, gratuity benefit etc. From Memos dated 01.06.2000 and 12.09.2001 issued under the signature of the Senior Assistant Secretary, Ministry of Civil Aviation and Tourism, it is clear that for regularization of BFCC contractual employees, the Ministry asked the respondent no. 2 to provide it with necessary papers/documents, but unfortunately the Biman authority did not respond thereto. Because of reluctance of the Biman authority, they could not be regularized in spite of the issuance of the said two Memos dated 01.06.2000 and 12.09.2001 by the Government. It was stated in the agenda of a Biman ED meeting signed on 30.12.2001 that by reason of the dual management system in BFCC and the discriminatory terms and conditions governing the service of the contractual employees, the smooth functioning of BFCC was being hampered and as such, it was recommended that the contractual employees be regularized and governed under the Regulations of 1979. But the said recommendation went unheeded. However, in an inquiry report dated 28.01.2002 submitted by a three-member committee of the Government, it has been stated that the appointment of contractual employees against the permanent set-up of Biman and extension of their service for indefinite duration are not consistent with the policies of the Government. The said committee recommended that both the regular Biman employees and contractual employees of BFCC be administered under a uniform regime and that the contractual employees be absorbed in the service of Biman. Alternatively, the committee recommended to convert BFCC into a company and administer all its employees according to the Company Law. But strangely enough, no positive step has been taken by the Biman authority for implementation of the recommendations as yet. In another inquiry report dated 27.10.2004 submitted by a one-member committee of the Government, it has been stated that since the regular and contractual employees of BFCC are not receiving equal treatment with regard to salaries and other service benefits, there exists a disappointing atmosphere in BFCC causing a feeling of deprivation among the contractual employees to the detriment of the smooth functionality of BFCC. So this committee also recommended that the contractual employees of BFCC be regularized in the service of Biman. Lastly, on 09.01.2005, a five-member committee headed by the General Manager (Administration), Biman submitted a report wherein it was recommended that in order to remove complications as regards promotion of the regular Biman employees and contractual employees of BFCC, Biman might be converted into a company under the control of the Biman Corporation.
 
As per Office Order No. 07 of 1995 dated 29.03.1995, the BFCC Board is obligated to frame Service Regulations/Rules for the newly-recruited contractual employees of BFCC; but no such Regulations/Rules have been framed as yet, albeit they are getting various service benefits/facilities under different Administrative Orders issued from time to time. While Regulation 4(1) of the Regulations of 1979 provides that the contractual employees shall be bound thereby, clause (d) of the Organization Order No. 13 of 1989 discriminates between the regular employees and the contractual employees by indicating that the Biman service facilities and benefits will not be applicable to the contractual employees. This being the scenario, clause (d) of the Organization Order No. 13 of 1989 dated 11.11.1989 is arbitrary and violative of the fundamental rights of the petitioners. It is worthy of notice that both the regular and contractual employees of BFCC were appointed under the same terms and conditions and as per the Regulations of 1979, but the service of the contractual employees is governed by various Administrative Orders of BFCC and not by the Regulations of 1979 and such contractual appointments of the petitioners are against the provisions of the Bangladesh Biman Corporation Ordinance of 1977. The impugned Organization Order No. 13 of 1989 is ultra vires the power of the Director (Administration) of Biman Corporation. BFCC being a permanent set-up within the organizational structure of Biman, the service of its contractual employees should be governed by the Regulations of 1979. So the issuance of Administrative Orders by BFCC Management to govern the service of the contractual employees without the approval of the Government is violative of the provisions of Section 30 of the Ordinance of 1977. The contractual employees of BFCC are enjoying almost all the service benefits like the regular Biman employees and as such they should be regularized as per the recommendations of various inquiry committees for efficient performance of their functions. Against this backdrop, the Biman authority is legally mandated to regularize the petitioners in the service of Biman.
 
In the Supplementary Affidavit dated 16.11.2005 filed on behalf of the petitioners, it has been mentioned that as per the relevant Government  policy, all revenue posts transferred from development projects shall be made permanent after three years.
 
In the Supplementary Affidavit dated 12.05.2010 filed on behalf of the petitioners, it has been stated that over the years, BFCC has become an integral part of Biman and this is why, it is managed and controlled by Biman. The contractual employees of BFCC will continue to work till attainment of 57 years and they are retiring from service just like the permanent/regular employees of BFCC. Only the permanent employees of Biman are entitled to service benefits like gratuity and various types of leave as per the Regulations of 1979; but nevertheless the contractual employees of BFCC are also getting these benefits which show that they are being treated as permanent employees of Biman for all practical purposes. Further, the Administrative Order concerning payment of gratuity to the contractual employees of BFCC also contemplates that they would go on working for an indefinite duration and be entitled to gratuity only on satisfactory completion of 7 years of service.
 
The respondent no. 2 has contested the Rule by filing an Affidavit-in-Opposition. His case, as set out in the Affidavit-in-Opposition, in short, runs as follows:
         Clause (d) of the Bangladesh Biman Organization Order No. 13 of 1989 does not discriminate between the regular employees of Bangladesh Biman and the newly-recruited employees of BFCC. It is specifically stated that the newly-recruited employees of BFCC have been appointed on contractual basis and that these employees have agreed under their contracts with BFCC that their terms and conditions of service will be governed as per their agreements with BFCC and as per the Service Regulations, Orders and Instructions issued from time to time by BFCC. As the petitioners are contractual appointees, they are bound by the terms and conditions of their contracts and as such, they are not entitled to enjoy all the benefits admissible to the permanent/regular employees of Biman. BFCC not only has its own Administrative and Financial Rules, but also has a separate Organogram (Organizational Chart). The terms and conditions of the service of the petitioners are prescribed by BFCC and not by Biman. Over and above, the salaries of the petitioners are paid not by Biman, but by BFCC. The allegation of discrimination by the petitioners in view of non-application of the Regulations of 1979 is clearly misconceived. The petitioners have been receiving gratuity, medical allowance and other facilities under their contracts with BFCC. Besides, they are currently receiving certain benefits/allowances that are not available to the permanent employees of Biman. So the contractual employees form a distinct class by themselves. The petitioners’ employment is currently regulated by various Administrative Orders and Instructions issued by BFCC and therefore they have not been in any way prejudiced by the fact that no Service Regulations are in place. The inquiry committee which submitted its report on 28.01.2002 was set up to inquire into certain audit objections. It was not set up for the purpose of reporting on the alleged differences between the terms and conditions of service of the contractual employees of BFCC and those of the permanent employees of Biman. The inquiry report  dated 27.10.2004 was in relation  to the presence  of a nail  in the food supplied  by BFCC to Qatar Airways and the observations made therein vis-à-vis the service conditions of the two sets of employees are uncalled-for, unjustified and unwarranted.
 
In the Supplementary Affidavit-in-Opposition dated 16.03.2006 filed on behalf of the respondent no.2, it has been averred that the petitioners have all been directly recruited by BFCC on contractual basis and the permanent employees of Biman working in BFCC have been appointed on deputation. Originally BFCC was a project of Biman. Biman is currently running a Poultry Complex which is manned by direct recruits on contractual basis as well as the permanent employees of Biman working on deputation there. The Deputy General Manager of BFCC is a permanent functionary of Biman working on deputation in BFCC. The contractual periods of the petitioners have been extended/renewed from time to time by BFCC. The orders of extension or renewal of their contractual periods clearly indicate that they are too entitled to terminate the contracts under the terms and conditions embodied therein. 
 
In the Supplementary Affidavit-in-Opposition dated 13.05.2010 filed on behalf of the respondent no.2, it has been mentioned  that  in 2001, BFCC had 558 employees of whom 312 were contractual employees directly recruited by BFCC and the remaining 246 were permanent employees of Biman working on deputation in BFCC. In 2007, Biman retired 182 permanent employees working on deputation in BFCC under a Voluntary Retirement Scheme (VRS). Furthermore, several permanent employees were terminated and/or removed from service by Biman. As a result, the number of permanent employees of Biman working on deputation in BFCC was considerably reduced. At present, BFCC has only 55 permanent employees of Biman working on deputation and 292 directly-recruited contractual employees. However, BFCC provides exclusive catering services to Air Africa, Saudia Airlines, Dragon Air, China Eastern Airlines, Etihad, Cathay Pacific and Biman Bangladesh Airlines Ltd. BFCC also provides catering services ‘on request’ to Air India Express, Emirates, Malaysian Airlines, Qatar Airways, Thai Airways, Kuwait Airways, Oman Airways and PIA. BFCC provides catering services to UN mission flights as well. Consequently, it is imperative that the services provided by BFCC must be commensurate with the international standard. As such, the terms and conditions of service of the directly-recruited contractual employees are determined by the authority with a view to ensuring and/or maintaining the quality and efficiency of the catering services of BFCC.

At the outset, Dr. M. Zahir, the learned Advocate appearing on behalf of the petitioners, submits that the impugned Clause (d) of the Organization Order No. 13 of 1989 amounts to discriminatory treatment against the petitioners and the said Order should be struck down as being arbitrary and violative of Articles 27, 29, 31 and 40 of the Constitution.

Dr. M. Zahir also submits that the impugned Organization Order No. 13 of 1989 being a mere Administrative Order has overridden the Regulations of 1979 which can not be acceptable in any perspective.

Dr. M. Zahir also submits that while Regulation 4(1) of the Regulations of 1979 provides that the contractual employees shall be bound thereby, Clause (d) of the Organization Order No. 13 of 1989 discriminates between the regular employees and the contractual employees by indicating that the Biman service facilities and benefits will not be applicable to the contractual employees.

Dr. M. Zahir further submits that it is true that the petitioners were initially appointed on contractual basis for a period of three or five years, as the case may be, but the fact remains that their contracts were renewed from time to time and they are still working in BFCC and in this view of the matter, those contracts can be regarded as “rolling contracts” and in this regard, the “doctrine of continuous officiation” should be called in aid for their absorption/regularization in the service of Biman.

Dr. M. Zahir also submits that the principle of legitimate expectation requires that the petitioners should be made permanent employees of Biman, regard being had to the attributes of permanency of their jobs.

Dr. M. Zahir next submits that it is an admitted fact that the petitioners along with the deputationists have been rendering self-same service in BFCC and that being so, both the sets of employees stand on the same footing and from this standpoint, the rule of “intelligible differentia” or “permissible criteria” is not applicable and by that reason, the petitioners should be regularized in the service of Biman as recommended by various inquiry committees.

In support of the above submissions, Dr. M. Zahir relies upon the decisions in the cases of Bangladesh Biman Corporation represented by the Managing Director…..Vs…. Rabia Bashri Irene and others, 55 DLR(AD)132; Sheikh Abdus Sabur…Vs… Returning Officer, District Education Officer-in-Charge, Gopalganj & others, 41 DLR(AD) 30; Md. Ismail Hossain….Vs… Government of Bangladesh and others, 27 DLR(AD) 353;  Daily Rated Casual Labour employed under P & T Department through Bhartiya Dak Tar Mazdoor Manch and others…Vs.. Union of India and others, AIR 1987(SC) 2342; Kerala Hotel and Restaurant Association and others… Vs… State of Kerala and others, AIR 1990 (SC) 913 and Dr. A.K. Jain and others…Vs…… Union of India and others, 1987 (Supp) SCC 497.

Mr. Abdul Matin Khasru, another learned Advocate appearing on behalf of the petitioners, submits that it is simply inconceivable that after rendition of continuous, uninterrupted and satisfactory service by the petitioners in BFCC, they will be thrown out on the street with empty hands on attainment of 57 years of age and the principle of equity demands that they be absorbed in the service of Biman.

Mr. Abdul Matin Khasru also submits that both the permanent and contractual employees manning BFCC are similarly situated and they must be treated alike; but strangely enough, the petitioners have been discriminated against in the matter of regularization of their service by Biman authority and such being the position, the inaction of Biman authority in not regularizing their service is violative of Article 27 of the Constitution.

Mr. Abdul Matin Khasru next submits that there is no gainsaying the fact that the Biman authority has made a material departure from the contracts of the petitioners in view of the fact that though they are  contractual employees, they have been given National Scales of Pay, gratuity  etc. just like permanent employees of Biman and from this angle, it can not be said by any stretch of imagination that the petitioners have not attained  any semblance of permanence  in their jobs; but the Biman authority has failed to take any steps for regularization of their service and as such, they have come  up with the instant Writ Petition for appropriate reliefs under Article 102 of the Constitution.

Mr. Abdul Matin Khasru further submits that it is in the Organization Order No. 13 of 1989 that the petitioners on being appointed on contractual basis will be governed by necessary Service Rules; but for reasons best known to the authority, the contemplated Service Rules have not been framed as yet, instead they are being governed by various Administrative Orders to their prejudice.

On the other hand, Mr. Abdur Razzaq, the learned Advocate appearing on behalf of the respondent no. 2, submits that  in view of Annexures-‘G’ and ‘G-1’  to the Writ Petition, it is abundantly clear that the modes of appointment of the permanent and contractual employees working in BFCC are different and in that view of the  matter, they can not be placed  or tied together  and the petitioners being contractual employees  are bound by the terms and conditions of their contracts and  they can not go beyond those terms and conditions  in any event.

Mr. Abdur Razzaq further submits that the petitioners have failed to show that not a single BFCC contractual employee was absorbed in the service of Biman at any point of time and as such the question of invocation of the principle of legitimate expectation does not arise at all.

Mr. Abdur Razzaq next submits that admittedly the petitioners have not challenged the legality of the contracts and it is not their case that they executed the contracts with BFCC under duress or intimidation or coercion or undue influence and consequently they can not give a go-by to the stipulations of the same.

Mr. Abdur Razzaq also submits that it is true that the petitioners were   given some benefits like gratuity, house rent, over-time allowance, scales of pay et el beyond the stipulations of the contracts; but those were given to them  ex gratia and on compassionate grounds and all those benefits /facilities are to their benefit and not to their prejudice and their claim  for regularization or absorption in the service of Biman has  only been made capitalizing on the  largesse offered to them by the Biman authority.

Mr. Abdur Razzaq next submits that there is no question of any discrimination between the permanent employees of Biman and the contractual employees like the petitioners working in BFCC inasmuch as they are governed  under separate regimes, though the differences in respect of service benefits between the two classes of employees have been considerably narrowed down; but none the less, it can not be held that the contractual employees have acquired the status of permanent employees necessitating their absorption in the service of Biman.

Mr. Abdur Razzaq also submits that the decisions relied on by Dr. M. Zahir in support of the case of the petitioners will not be of any avail to him in that those decisions deal either with temporary or casual or ad hoc employees and he  fails to  advert to any  decision of any jurisdiction to the effect that the contractual employees have been absorbed  permanently in the service  of the concerned department or organization because of their continuous, uninterrupted and satisfactory rendition  of service  for a good number of years.

Mr. Abdur Razzaq next submits that it is not comprehensible as to how this Court will issue a Writ of Mandamus particularly when the petitioners have signally failed to make out a case of a legal right for enforcement and a legal duty for performance on the part of the authority concerned and as the recommendations of various inquiry committees for absorption of the petitioners in the service of Biman are not justiciable, the Rule as issued in the instant Writ Petition must fail.

In support of the above submissions, Mr. Abdur Razzaq has relied on some cases, namely, Talekhal Progressive Fishermen Co-operative Society Limited….Vs….Bangladesh and others, 1981 BLD (AD) 103; Hazerullah….Vs…..Assistant Commissioner, Board of Management of Abandoned Property and others, 55 DLR (AD) 15; Yunus Mia (Md) and others….Vs…. The Secretary, Ministry of Public Works & Urban Development, Government of Bangladesh and others, 45 DLR (HCD) 498; The Secretary, State of Karnataka and others….Vs… Umadevi (3) and others, (2006) 4 SCC 1 and the Chief Commissioner of Income Tax and others…Vs…. Susheela Prasad (SMT) and others (2007) 12 SCC 402.

We have heard the submissions of the learned Advocate Dr. M. Zahir and Mr. Abdul Matin Khasru and the counter-submissions of the learned Advocate Mr. Abdur Razzaq and perused the Writ Petition, Supplementary Affidavits, Affidavit-in-Opposition, Supplementary Affidavits-in-Opposition and relevant Annexures annexed thereto.

It goes without saying that initially the petitioners were appointed on contractual basis for a period of three or five years, as the case may be and subsequently their contractual periods were extended from time to time. It is admitted that they were first appointed on that basis in BFCC project and after the completion of the project, it became an affiliate body of Bangladesh Biman. It is also admitted that the Biman authority made a material departure from the contracts of the petitioners by awarding them various service benefits/ facilities at subsequent points of time by way of house rent, over-time allowance, gratuity etc. It is further admitted that all the petitioners are still working in BFCC. Given this scenario, a pertinent question arises: Whether the petitioners being contractual employees have acquired the status or right to be treated as permanent employees of Biman? In the facts and circumstances of the case, this moot question must be answered either in the affirmative or in the negative.

In this context, the Annexures-‘D’, ‘G’, ‘G-1’ and ‘E’ to the Writ Petition appear to be very vital documents for the purpose of adjudication of the Rule. Annexure-‘D’ to the Writ Petition is the Organization Order No. 13 of 1989 dated 11.11.1989. This Annexure-‘D’ reveals that with the establishment of BFCC, Biman Management has taken certain decisions and one of those decisions is the abolition of the Cabin Facilities Department.  Another decision is that all the existing employees of Cabin Facilities Department stand transferred to BFCC and they will be functionally and administratively responsible to BFCC Management.  On transfer, their service will be governed by the Regulations of 1979 or those as are amended from time to time and they will continue to receive salaries, allowances and other facilities of Biman as per their terms of engagement. The Annexure-‘D’ further shows that the service of newly-recruited employees of BFCC will be governed by BFCC Rules and Service Regulations and Biman service facilities and benefits will not be applicable to them.  So from Annexure-‘D’,  it is crystal  clear that the erstwhile  employees  of Cabin Facilities  Department working on deputation in BFCC as permanent employees of Biman and the petitioners being contractual employees working there are two distinct and separate classes of employees and are governed separately.

Undeniably, the deputationists working in BFCC as permanent employees  of Biman were initially  appointed  on contractual basis and subsequently in terms of Clause 6 of Annexure-‘G-1’ dated 11.01.2001, they were appointed permanently  in the service  of Biman, regard being had to their satisfactory service records  during contractual periods. But in contradistinction to Annexure-‘G-1’, there is no such clause in Annexure-‘G’ dated 05.09.1999 which governs the appointment of contractual employees. In the absence of any such clause in Annexure-‘G’ to the Writ Petition, there does not appear to be any scope for absorption of the petitioners in the service of Biman as permanent employees. This clause 6 in Annexure’G-1’ is, no doubt, a distinguishing feature which puts the contractual employees like the petitioners on a different footing. What we are driving at boils down to this:  had there been any stipulation as embodied in Clause 6 of Annexure-‘G-1’ in Annexure-‘G’, then the question of regularization of the petitioners, or for that matter, their absorption as permanent employees in the service of Biman would have arisen. By the way, Annexure-‘E’ to the Writ Petition may be taken into account. This Annexure-‘E’ is the agreement for contractual service. A reference  to Annexure-‘E’ positively indicates  that the contractual employees will not be entitled to the benefits of any provident fund, gratuity and group insurance  whatsoever, even though indisputably the benefit of gratuity has been  extended  to them at a later stage. The most striking feature of Annexure-‘E’ is this: the service of the contractual employees in BFCC is terminable at any time without assigning any reason by giving notice of 60 days. Taking Annexures-‘D’,’G’, ‘G-1’ and ‘E’ together, it leads us to the irresistible conclusion that the service of the contractual  employees of BFCC like the petitioners is terminable with prior notice. In other words, the relationship between the Biman authority and the petitioners is virtually that of master and servant.  The rule of master and servant necessarily and essentially applies to them.

Regulation 1(2)(b) of the Regulations of 1979 envisages that the Regulations shall  apply to the employees of the Corporation employed on contract to the extent not otherwise specified  in the instruments of contracts. As a matter of fact, the fate of the petitioners hinges upon the interpretation of Regulation 1(2)(b). From a bare reading thereof, it transpires that the contractual employees (petitioners) shall be governed by the Regulations of 1979 subject to the terms and conditions embodied in the instruments of contracts. At this juncture, Regulation 4(1) of the Regulations of 1979 appears to be of paramount importance. Regulation 4(1) contemplates that  an employee on contract is a person  with whom a specific contract of employment has been entered into. An employee on contract shall be bound by the Regulations except where otherwise expressly stated in the contract.  Precisely speaking, the petitioners shall only be governed by the Regulations of 1979 subject to the stipulations otherwise expressly stated in the contracts.  As observed earlier, the permanent employees working in BFCC were initially appointed on contract and subsequently they were appointed permanently in the service of Biman pursuant to clause 6 of Annexure-‘G-1’. It has already been adverted to above that there is no such clause in Annexure-‘G’. Such being the state of affairs, the express stipulations  in the instruments of the contracts executed by the petitioners shall be binding  upon them and in the absence of any specific stipulation to the contrary therein, they will be governed  by the relevant provisions of the Regulations of 1979.

The respondent no. 2, in this respect, rightly relies upon the legal dictum: “Expressio unius est exclusion alterius”. (Bangladesh …Vs… Abdul Mannan and others, 29 DLR (SC) 17), that is to say,  express mention of one thing implies exclusion  of others. The express mention of Administrative Orders in the contracts governing the terms and conditions of the service of the petitioners implies exclusion of operation of the Regulations of 1979.

It seems that Mr. Abdur Razzaq has rightly contended that the legality of the contracts is not in dispute. No allegation of fraud, coercion, intimidation, undue influence and malpractice has been levelled against the authority. The petitioners entered into the contracts of their own volition and with eyes wide open. The authority can not be blamed for their act of volition. They are employees on contract by choice, not by chance.

It necessarily follows that the impugned Clause (d) of the Organization Order No.13 of 1989 does not mete out any discriminatory treatment to the petitioners who are a class by themselves as distinguished from the regular/permanent employees of Biman working in BFCC on deputation. So the contention of Dr. M. Zahir that the said Order No.13 of 1989 is arbitrary and violative of Articles 27, 29, 31 and 40 of the Constitution falls through.

As the petitioners have chosen to be governed by the terms and conditions of their contracts and as they are bound by the Regulations of 1979 except where otherwise expressly stated in the contracts, we are not impressed by the omnibus contention of Dr. M. Zahir that the Organization Order No. 13 of 1989 has overridden the Regulations of 1979.

The upshot of the foregoing discussions is that there are ‘intelligible differentia’ or ‘permissible criteria’ between the two classes of employees working in BFCC, that is to say, the permanent and contractual employees. From this point of view, we find it difficult to hold that both the contractual and permanent employees working in BFCC are similarly situated. It has already been observed that various service benefits of permanent employees have been extended or awarded to the contractual employees. Does this place the contractual employees on a par with the permanent employees working in BFCC? The obvious answer is an emphatic no.

Although the differences between the permanent and contractual employees in respect of service benefits/facilities have been significantly bridged or narrowed down, even then they are not equals; rather they are unequals. The petitioners might have rendered continuous, uninterrupted and satisfactory service in BFCC, but that does not ipso facto entitle them to lay a claim to regularization of their service in Biman.

There is not an iota of doubt that necessary Service Rules or Regulations have not yet been framed by BFCC for the petitioners. It has been agreed upon that they will continue to be governed by various Administrative Orders and Instructions. As they are a consenting party thereto, they can not cash in on non-framing of any Service Rules or Regulations by BFCC.

As per Regulation 3 of the Regulations of 1979, there are as many as 8 (eight) types of employees, namely, (a) Employees on contract, (b) Permanent employees, (c) Probationers, (d) Temporary employees, (e) Substitute employees,(f) Casual employees, (g) Apprentice employees, and (h) Deputationists. It seems that every class of employees as provided in Regulation 3 is a distinct class and stands on a separate footing. So we opine that the petitioners being employees on contract are a class by themselves on the basis of this categorization as well.

Dr. M. Zahir has emphatically relied on the decision in the case of Bangladesh Biman Corporation represented by the Managing Director…Vs… Rabia Bashri Irene and others reported in 55 DLR (AD) 132 in support of the claim of the petitioners that their service is liable to be regularized or made permanent by the Biman authority. In that decision, it was held, inter alia, in paragraph 10:

“10…………………………………………………………………………………………………………….
It is not disputed that the employees of batch nos. 1-27 of the writ-petitioners’ category although were employed on contract, but on satisfactory completion of initial period of employment, they have been absorbed permanently in the service of the Corporation. But in the case of the writ-petitioners, that has not been followed, rather on completion of the initial period of employment instead of renewal of their   agreement of employment, they were given fresh employment. Since some employees of the Corporation inter se standing in the similar situation have not been treated in the similar manner or, in other words, have been treated differently from others, the contention of the writ-petitioners that they have been discriminated against has rightly been found genuine by the High Court Division.”

Reverting to the case in hand, we have already found that not a single contractual employee standing on the same footing with the petitioners has been absorbed in the service of Biman permanently at any point of time. So in that view of the matter, the facts and circumstances of the instant case are quite distinguishable from those of the case reported in 55DLR(AD)132. Consequently, the reference to that case does not appear to be of any avail to Dr. M. Zahir.

Having regard to the facts and circumstances of the instant case, the decision in the case of Sheikh Abdus Sabur….Vs… Returning Officer, District Education Officer-in-Charge, Gopalganj and others reported in 41DLR (AD)  30 adverted to by Dr. M. Zahir does not seem to be of any help to him.

With regard to the other decisions relied on by Dr. M. Zahir, it transpires that those decisions have dealt with either temporary or casual or ad hoc employees/ appointees. The present writ-petitioners being contractual employees can not be bracketed with them in any case. Besides, the decision of the Indian Supreme Court in the case of the Secretary, State of Karnataka and others….Vs…. Umadevi (3) and others reported in (2006) 4 SSC 1 has already clinched the matter on this point. In that decision, paragraphs 47 and 48 are as follows:

“47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person can not invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in cases concerned, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation can not be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State can not constitutionally make such a promise. It is also obvious that the theory can not be invoked to seek a positive relief of being made permanent in the post.
48.…………………………………………………………………………………………………………
There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they can not be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, can not be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It can not also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant requirement rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled.”
 
In the said decision, paragraph 52 runs as under:

“52. Normally, what is sought for by such temporary employees when they approach the Court, is the issue of a Writ of Mandamus directing the employer, the State or its instrumentalities, to absorb them in permanent service or to allow them to continue. In this context, the question arises whether a Mandamus could be issued in favour of such persons. At this juncture, it will be proper to refer to the decision of the Constitution Bench of this Court in Rai Shivendra Bahadur (Dr.) V. Governing Body of the Nalanda College (AIR 1962 SC 1210). That case arose out of a refusal to promote the writ petitioner therein as the Principal of a college. This Court held that in order that a Mandamus may issue to compel the authorities to do something, it must be shown that the statute imposes a legal duty on the authority and the aggrieved party had a legal right under the statute or rule to enforce it. This classical position continues and a Mandamus could not be issued in favour of the employees directing the Government to make them permanent since the employees can not show that they have an enforceable legal right to be permanently absorbed or that the State has a legal duty to make them permanent.”
 
In the decision in the case of the Chief Commissioner of Income Tax and others….Vs…. Susheela Prasad (Smt) and others reported in (2007) 12SCC 402, the Indian Supreme Court referred to said Umadevi’s case and quoted with approval paragraph 33 of that case which is in the following terms:

“33. It is not necessary to notice all the decisions of this Court on this aspect. By and large, what emerges is that regular recruitment should be insisted upon, only in a contingency can an ad hoc appointment be made in a permanent vacancy, but the same should soon be followed by a regular recruitment and that appointments to non-available posts should not be taken note of for regularization. The cases directing regularization have mainly proceeded on the basis that having permitted the employee to work for some period, he should be absorbed, without really laying down any law to that effect, after discussing the constitutional scheme for public employment.”
 
From the above observations and findings of the Supreme Court of India and in the light of the facts and circumstances of the present case, we do not find any substance in the argument of Dr. M. Zahir that the “doctrine of continuous officiation” should be invoked for absorption/regularization of the petitioners in the service of Biman.
 
Article 27 of our Constitution provides that all citizens are equal before the law and are entitled to the equal protection of law. Sir Ivor Jennings in his “The Law and the Constitution” stated:

“Equality before the law means that among equals, the law should be equal and should be equally administered, that like should be treated alike”.           
 
A.V. Dicey in his “Law of the Constitution” mentioned:

“Equality before the law does not mean absolute equality of men which is a physical impossibility, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law Courts.”
 
In the “Limitations of Government Power” by Rotundy and others, the phrase “equal protection of the law” was described in the following manner:

“The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the Government. It does not reject the Government’s ability to classify persons or draw lines in creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or be arbitrarily used to burden a group of individuals. Such a classification does not violate the guarantee when it distinguishes persons as ‘dissimilar’ upon some permissible basis in order to advance the legitimate interest of society.”
 
In the case of Southern Rly Co. V. Greane, 216 U. S. 400, Day-J observed:

“Equal protection of the law means subjection to equal laws, applying alike to all in the same situation.”
 
Chandrachud-J, in the case of Smt. Indira Gandhi V. Raj Narayan, AIR 1975 SC 2279 described his idea of equality in the following words:

“All who are equal are equal in the eye of law, meaning thereby that it will not accord favoured treatment to persons within the same class.”
 
On consideration of the views expressed by these distinguished Judges and Authors as to the meaning of the phrase “equality before law and equal protection of the law”, we do not think that we will be able to define this term in a better way. “Equality before law” is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess but which are lacking in others. The term “equal protection of law” is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same.  It has already been held that the petitioners and the permanent employees of Biman working in BFCC are not similarly situated. As they are not likes, they can not be treated alike in any view of the matter. That is the point.
 
A promise made in the shape of a statement of policy or a procedure regularly adopted by the authority may give rise to what is called “legitimate expectation”, that is, expectation of a kind which the Court now enforces. Legitimate expectation gives the applicant sufficient “locus standi” for judicial review and in most cases, the legitimate expectation is confined to the right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking is taken. The doctrine operates in the domain of public law and in an appropriate case constitutes substantive as well as procedural rights. The statement or practice giving rise to the legitimate expectation must be sufficiently clear and unambiguous, and expressed or carried out in such a way as to show that it was intended to be binding. 

So it is our considered view that the legitimate expectation must stem from a promise in the shape of a statement of policy or a procedure regularly adopted by the authority. We have already discussed that not a single contractual employee standing on a par with the petitioners was ever absorbed in the service of Biman. In that view of the matter, the question of legitimate expectation as advanced on behalf of the petitioners stands negatived.
Of course, it is undisputed that various inquiry committees made repeated recommendations for absorption of the petitioners in the service of Biman as permanent employees. It is also on record that the Ministry of Civil Aviation  and Tourism asked the Biman authority to supply  the relevant information  about their background to that  Ministry for doing the needful; but the Ministry did not receive any response therefrom in that regard. There is no dispute that those recommendations can not be enforced through the Writ Jurisdiction of the High Court Division under Article 102 of the Constitution in that they do not create any legal right in favour of the petitioners.

The second part of clause (2)(a)(i) of Article 102  of the Constitution  confers power on the High Court Division  to issue  writs in the nature   of Mandamus to compel a person  performing  functions in connection with the affairs  of the Republic or a local authority  to do  something that he is required by law to do. Such person must hold office of a public nature, that is, an office under the Constitution or a law relating to the affairs of the Republic or of a local authority. The Writ of Mandamus will be issued only when that public functionary has a public duty under a law and he refuses to perform his legal duty; the duty may be judicial, quasi-judicial or purely administrative.  The duty sought to be enforced must be a duty of a public nature, that is, a duty created by the provisions of the Constitution or a statute or some other rule of common law or some rules or orders or notifications having the force of law. The public duty need not, however, be always a statutory duty. No Writ of Mandamus will be issued to compel the Government to implement its policy nor will it be issued merely on consideration of equity.

In the case of Yunus Mia (Md.) and others….Vs…The Secretary, Ministry of Public Works and Urban Development, Government of Bangladesh and others reported in 45 DLR(HCD) 498 relied on by Mr. Abdur  Razzaq, it has been held that the High Court Division under Article 102 of the Constitution can not issue any prerogative writ directing the Government  to implement its policy.

In the case of Talekhal Progressive Fishermen Co-operative Society Limited …Vs… Bangladesh & others reported in 1981 BLD(AD) 103 referred to by Mr. Abdur Razzaq, it has been held that in order to entitle a person to ask for performance of a public duty  by Mandamus, it is necessary to show that he has a  legal right for claiming such performance, apart from the fact that he is interested  in the performance of the duty. 

In the case of Hazerullah Vs. Assistant Commissioner, Board of Management of Abandoned Property and others reported in 55 DLR (AD)15 adverted to by Mr. Abdur Razzaq, it has been decided that one could only avail oneself of the forum by way of Mandamus for enforcement of any legal right or to redress the violation thereof.

In the case of the Queen …Vs…. Guardian of the Lewisham Union reported in (1897) 1 QB 498, it was held:

“This Court would be far exceeding its proper functions if it were to assume jurisdiction to enforce performance by public bodies of all their statutory duties without requiring clear evidence that a person who sought its interference had a legal right to insist upon its performance.”

From the above discussions, it leaves no room for doubt that in order to invoke the prerogative Writ of Mandamus, the petitioners must have a legal right to be enforced and the Biman authority must have a legal duty to be performed. In the facts and circumstances of the case, we have no hesitation in holding that the petitioners have no legal right for enforcement and the Biman authority has no legal duty for performance.  Such being the legal position, our definite conclusion is that the petitioners can not enforce their claimed absorption or regularization in the service of Biman through issuance of a Writ of Mandamus.

There is no denying the fact that the petitioners being contractual employees have been provided with most of the service benefits/facilities of the permanent employees of Biman. Even  as per Annexure-‘Z-5’ dated 19.02.2009 to the Supplementary Affidavit filed to-day  on behalf of the petitioners, the service of the contractual employees is terminable on completion of 57 years of age just like the terminal point of the service of the permanent employees of Biman. It is true that the petitioners have rendered many years of service as contractual employees in BFCC. Admittedly the Biman authority has made a material departure from the instruments of contracts giving some additional benefits/ facilities to them in phases. According to Mr. Abdur Razzaq, those benefits/facilities have been awarded to them on compassionate grounds.  Anyway, as we see it, with the passage of time, the petitioners have acquired the status of quasi-permanency in their jobs. But nevertheless as they are bound by the terms and conditions of their contracts, they can not be absorbed permanently in the service of Biman unless and until they are recruited thereto in accordance with law. If we give the reliefs sought for in the present Writ Petition, that will be tantamount to re-writing the terms and conditions of their contracts. But that is not permissible in law.  In our opinion, both the contractual and permanent employees working in BFCC are so near and yet so far.

In the given facts and circumstances of the case, we strongly feel that there is always some scope for doing something more for the petitioners in view of their admitted continuous, uninterrupted and unblemished rendition of service in BFCC. Hopefully the Biman authority will continue its sustained and unremitting efforts   to ameliorate their lot.

However, in view of the discussions made above and in the facts and circumstances of the case, we find no merit in the Rule. The Rule, therefore, fails.

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

         Ed.