Case No: Civil Appeal No. 277 of 2002
Judge: Mohammad Fazlul Karim ,
Court: Appellate Division ,,
Advocate: Abdul Wadud Bhuiyan,Anwarul Azim Khair ,,
Citation: 16 BLT (AD) (2008) 87
Case Year: 2008
Appellant: Md. Abdur Rahman
Respondent: Government of Bangladesh and another
Subject: Administrative Law,
Delivery Date: 2005-07-11
Md. Abdur Rahman
Government of Bangladesh and another,
16 BLT (AD) (2008) 87
Syed JR Mudassir Husain CJ
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J
Md. Abdur Rahman……………………………………………..Appellant
Government of Bangladesh and another…………………Respondents
July 11, 2005.
Constitution of Bangladesh, 1972
The circular or administration instructions have been specifically declared as order making rule contained in memo issued by the authority but the same may not be treated as statutory rules having no statutory backing but no such regular posts being available for regularization, a work-charged employee could not be regularized inasmuch as no such promissory estoppels could be claimed under the circumstances or the government may be compelled to perform their duties as an obligation in the absence of any such legal footing for the appellant to be accommodated . Also there is no scope for regularization of the service of the appellant as there is no existence of such regular posts and more-so, when a project has already been ceased to exist to grant any relief by exercising our discretion under Article 104 of the Constitution for doing complete justice.
Cases Referred To-
Bangladesh Vs. Shafiuddin Ahmed 50 DLR (AD) 27; Pakistan Vs. Sheikh Abdul Hamid, PLD 1961 (SC) 105 = 13 DLR (SC) 100; Province of West Pakistan Vs. Din Muhammad, PLD 1964 (SC) 21=16 DLR (SC) 58; Md. Naseem Ahmed Vs. Azra Feroze Bakthe, PLD 1968 (SC) 97 = 20 DLR (SC) 78; Satyavir Vs. Union of India, AIR 1986 (SC) 555; Md. U.P. Land Development Corporation and another Vs. Aman Singh and others (2003) SCC 388; Mr. Abdul Khan Vs. Govt. of Bangladesh; Urmila Devi and others Vs. State of Bihar and others (1999) Supreme Court Cases (Labour and Service) 642 State of H.P. v. Nodha Ram, SCC pp. 478-79.
Abdul Wadud Bhuiyan, Senior Advocate, instructed by Fakhrul Islam, Advocate-on-Record- For the Appellant.
Anwarul Azim Khair, Deputy Attorney General, instructed by Firoj Shah, Advocate-on- Record-For the Respondents.
Civil Appeal No. 277 of 2002.
(From the judgment and order dated 30.5.2001 passed by the Administrative Appellate Tribunal in Appeal No. 126 of 2000).
Mohammad Fazlul Karim J.- This appeal by leave at the instance of the appellant has arisen out of the judgment and order dated 30.5.2001 passed by the Administrative Appellate Tribunal in Appeal No. 126 of 2000 dismissing the appeal preferred against those dated 12.10.2000 of the Administrative Tribunal in A.T. Case No.230 of 1994 thereby affirming the decision of the Administrative Tribunal declaring that being a work-charged employee in a project the appellant is not entitled to get pension benefit without being a regular Government servant.
2. The appellant as the petitioner filed the A.T. Case before the Administrative Tribunal challenging the legality and propriety of the order dated 3.3.1994 passed by the Secretary, Ministry of Local Government, Rural Development and Cooperatives refusing to grant pension benefit to the appellant.
3. The case of appellant, in brief, is that he entered the service as an Estimator under the Public Health Engineering Directorate on 2.10.1956. While serving as a Supervisor in Dhaka WASA he fell seriously ill and was absent from duty for a period of 2 years 10 days with effect from 1.10.1984. Subsequently on his prayer, the Chief Engineer, Public Health Department gave him a fresh appointment in a project as work-charged Assistant Engineer on 24.10.1967 on humanitarian ground. There he rendered services for 25 years and took retirement on completion of 57 years of age on 21.11.1992. During his long service as work-charged employee he submitted applications on 3.8.1977, 13.12.1978, 31.12.1979, 6.5.1992 and 14.9.1992 for his absorption to regular post but the Secretary, Ministry of Local Government, Rural Development and Co-operatives rejected all his applications illegally and arbitrarily and thereby refused to regularize his service inspire of clear Government policy in this respect vide Government Notification dated 28.3.1969, Establishment Division Circulars dated 21.4.1972, 8.10.1974 and 5.8.1980 and also in spite of the fact that service of two other work-charged Assistant Engineer Obaidur Rahman and Matiur Rahman of the same Directorate were regularised and they were subsequently given promotion to the post of Executive Engineers and also got pension benefits. On attaining the age of 57 years he went on retirement with effect from 21.1L1992 without pensionary benefits to which he was legally entitled to and as such, he submitted an application before respondent No. 1 on 12.2.1994 which was illegally rejected by an order dated 3.3.1994 on the ground that there was no scope for grant of pension benefit to work-charged employees under a project.
4. The respondent contested the case filing written statement denying the material allegations stating, inter alia, that the appellant was appointed Assistant Engineer under work-charged establishment in a project and was entitled to continue such service till attainment of 60 years of age as per Establishment Division Circular dated 6.8.1973 (Annexure-J). But before completion of the project he voluntarily retired from service on attaining the age of 57 years. His absorption to a regular post was not possible, and as such his prayer was legally rejected. Since the appellant was not appointed to any substantive post under the revenue budget he is not entitled to get pension and other benefits available to a regular Government service holder.
5. Leave was granted to consider that:
"Mr. Abdul Wadud Bhuiyan, the learned Counsel appearing for the petitioner submits that both the Tribunals below ought to have considered that if the colleagues of the petitioner namely Mr. Obaidur Rahman and Mr. Motiur Rahman are entitled to get pension benefit serving as work-charge Assistant Engineer under a project like the petitioner, in that case the petitioner is also equally entitled to get the pensionary benefit because they being equally circumstanced cannot be treated discriminatorily. The learned Counsel submits that the Tribunals did not consider that there was conversion of 68 posts of work-charge service under a project into a regular service under revenue budget to give the employees pension benefit by the office order dated 5.11.94 and thereafter the authority concerned in the recent past converted 38 posts of work-charge service into a regular service to give the employees pensionary benefit by the office order dated 1.5.99 but turned down the petitioner's prayer for pensionary benefit on the ground that since the service of the petitioner was work-charge service under a project, so there was no scope of pension benefit, which is a discriminatory treatment of the petitioner which is not legally tenable and is clearly violative of the fundamental rights of the petitioner guaranteed under Articles 27 and 29 of the Constitution. The learned Counsel lastly submits the Government by Memo No. Est/RI/S-46/72/55 dated 21st April, 1972 having communicated its decision to absorb the work charge employees into regular establishment and having given its decision that in absorbing the employees the persons, who have the longest period of service and are retiring or are on the verge of retirement should be given preference so that they get retirement benefit on retirement under the President's Order No.14 of 1972 and having also given its decision that .the persons who have already retired since the promulgation of President's Order No. 14 of 1972 should also be given the benefit of absorption into regular establishment by issue of orders retrospectively and giving retirement benefits provided they had the prescribed length of service, the learned Administrative Appellate Tribunal committed an error of law in holding that the petitioner being a work charge employee is not entitled to get pension benefits."
6. Mr. Abdul Wadud Bhuiyan, the learned Counsel appearing for the appellant submitted with reference to the notification 28.3.1969 issued by the Government of East Pakistan Service and General Administration Department, Regularization Branch, Section-1 together with notification issued by the Secretary, Ministry of Establishment of the Government of People's Republic of Bangladesh dated 21.4.1972 and the notification dated 8th April 1974 issued by the Joint Secretary, Establishment Division, Ministry of Cabinet Affairs, Regulation Section-4 that a work-charged staff existing for 10 or more years may be brought into regular Establishment in consultation with the Finance Department and that some of the Juniors including one A.K.M. Matiur Rahman and another were regularized in the service and subsequently promoted to the post of Executive Engineer and in order to avoid the discriminatory treatment, the appellant is entitled to be regularized and consequent pension benefits though the appellant, a work-charged employee upon his retirement was not entitled to pension benefit under BSR 248 and 25 8 of Part-1.
7. The learned Counsel for the appellant has, however, referred to the decision in the case of Bangladesh Vs. Shafiuddin Ahmed reported in 50 DLR (AD) 27 for the proposition that aforesaid circulars have the force of law. The said decision is in fact for the proposition that:
"We see no reason why in our country as well the void created by the absence of law and rules under Article 133 cannot be filled up by executive power under Article 55(2) expressed to be taken in the name of the President (Article 55(4). Such exercise of power is not unknown or without precedent in our jurisdictions. Referring to section 241(3) of the Government of India Act, 1953 and Article 178 of the Constitution of Pakistan, 1956 and relying upon the case of Pakistan Vs. Sheikh Abdul Hamid, PLD 1961 (SC) 105 = 13 DLR (SC) 100, it was held by the Supreme Court of Pakistan in the case of Province of West Pakistan Vs. Din Muhammad, PLD 1964 (SC) 21=16 DLR (SC) 58, that an administrative instruction, though not specifically described as "order making a rule", contained in a memorandum issued by an authority competent to alter or amend rules can be as effective and binding as statutory rules. In the Abdul Hamid case and in the case of Md. Naseem Ahmed Vs. Azra Feroze Bakthe, PLD 1968 (SC) 97 = 20 DLR (SC) 78, it was held that administrative instruction which have the precision of rules and are general in nature in their application to any particular service or services may have the force of law. These decisions, which we have no reason to depart from, are even more favourable to members of the service of the Republic in our country than to those in India, because the Supreme Court of India held that where a Rule is not made under constitutional or statutory authority, it is a mere administrative instruction, having no force of law (Satyavir Vs. Union of India, AIR 1986 (SC) 555)."
The learned Counsel has also referred to the decision in the case of Islamic Republic of Pakistan Vs. Muhammad Sayed for the proposition that the Govt. may be compelled by way of mandamous to carry out any legal obligation they are duty bound to perform under the law.
8. Mr. Anwarul Azim Khair, the learned Deputy Attorney General has submitted that where the rule is not made under any legislative sanctions namely constitutional or statutory authority it is a mere administrative instruction having no force of law but the same being the internal notes and others of the office memos for official purpose and should not be produced before the Court in support of the claim of the employees and has referred to a decision in the case of Md. U.P. Land Development Corporation and another Vs. Aman Singh and others reported in Indian Supreme Court in (2003) SCC 388.
9. The notification dated 28.3.1969 issued by the Services and General Administration Department, Regulation Branch, Section-1 on the subject "Conversion of temporary posts with permanent ones and contingent and work-charged into regular establishment" provided that "50% of the nongazetted posts of the work-charged establishment existing for the years or some may be brought into regular establishment in consultation with the Finance Department". Accordingly all departments and directives were requested to take up in question of 50% of the work-charged establishment into regular establishment on the principles laid down therein in consultation with the Finance Department.
10. Subsequently, the Establishment Division issued a notification dated 21st April, 1972 with reference to aforesaid notification dated 28.3.1969 expressing its anxiety that the said notification has not been complied with and it has been decided to implement the same and that even those who have meanwhile retired since P.O. No. 14 of 1972 should be given the benefit of absorption provided that they had the prescribed length of service. The said position was further reiterated by memo dated 8.10.1974 of the Establishment Division regarding grant of pension to the work-charged employees who have been brought into regular establishment.
11. The appellant, however, was never absorbed as aforesaid in regular establishment as per those notifications and consequently was not entitled any pension benefit.
12. On perusal of the referred decision in the light of the aforesaid notification, it appears that where a rule is not made ultra Constitutional or statutory authority, it is a mere administrative instruction having no force of law and since the said instruction has no force of law but mere Govt. notes and orders of the memo for official purposes only no legal right or vested right has accrued to the appellant to compel the Govt. by way of mandamous to carry out the instructions/circulars having no force of law.
13. The learned Counsel for the appellant with reference to another decision in the case No.70 of 1984 of the Administrative Tribunal, Dhaka dated 10.05.1985 (Mr. Abdul Khan Vs. Govt. of Bangladesh) in respect of certain other employees of the like nature has submitted that the appellant is in like manner entitled to be regularised relying on the notification dated 21.4.1972 and given pension benefit, for the simple reason that a person similarly situated should be dealt with similarly and as such the discriminatory treatment in not making the appellant's employment on regular basis could be remedies even in the principle of doing complete justice.
14. The learned Deputy Attorney General has submitted that the appellant having been appointed on a work-charged basis in a project since completed/stopped has no vested right to regularisation on the basis of the said circulars and a wrong decision in favour of any particular party does not entitle any other person to claim any benefit received by another on the basis of a wrong decision misconstruing the notification dated 21.4.1972 and that persons similarly situated like appellant though wrongly regularised but one wrong could not be multiplied by another wrong.
15. The learned Deputy Attorney General has referred a decision in the case of Urmila Devi and others Vs. State of Bihar and others reported in (1999) Supreme Court Cases (Labour and Service) 642 wherein it has been held that:
"We have heard learned Senior Counsel for the petitioners as well as learned counsel for the respondent-State. In our view, the grievance of the petitioners that the persons similarly situated like them have been given a better treatment and have been regularised cannot be pressed into service as learned Counsel for the respondent-State stated that they were wrongly regularised. It is obvious that one wrong cannot be multiplied by another wrong."
16. We are in complete agreement with the aforesaid decision and we of the view that the appellant having been appointed on work-charge basis in a project and the post not having made a regular one so as to entitle him to receive pension benefit could not claim reliance on the equality basis being a persons similarly situated under certain mistake decision arrived at or misconstruction of certain circular having no force of law and the referred decision has rightly observed that on wrong in favour of one of the employee can not be multiplied by applying the selfsame wrong in favour of the appellant.
17. The learned Counsel for the appellant further submitted that the appellant though appointed as an Assistant Engineer under work-charged Establishment in the Public Health Village Sanitary Division, Dhaka in foreign aided project has been continuously making representations since 1978 and lastly on 1992 while he was in service prior to going to voluntary retirement praying for regularizing his service in the revenue budget but was denied on 3.3.1994 when he moved the Administrative Tribunal for alleged discrimination in the matter of regularization.
18. Mr. Anwarul Azim Khair, the learned Deputy Attorney General has referred to a notification issued by the Ministry of Establishment dated 28.10.1993 recommending the 5 (five) posts of Assistant/Divisional Engineer/Assistant Commissioner for regularization who are on workcharged basis in a project for regularization but the Ministry of Finance as per the notification dated 28 March 1969 did not agree to retain those posts of Assistant Engineers and as such the post of appellant having been abolished in the project, the employees holding the posts could not be regularized. The learned Deputy Attorney General further submitted that the project have been completed in 1995 soon after the retirement of the appellant, the employees have gone along with the project and the Ministry of Finance as well did not regularise those posts and no direction could be given for regularization of the said post as the appellant being as a work charged employee in the project have no vested right to be regularized.
19. Admittedly, the appellant was appointed as an Assistant Engineer under work-charged establishment in a project under the Public Health Sanitation Division, Dhaka and completed his age of voluntary retirement at 57 years to enable him to take retirement in 1992 and at no point of time the said post was ever regularised although certain circulars as aforesaid provided for the same with the concurrence of the Ministry of Finance. Thus it is clear that the appellant was never recruited as against any regularly sanctioned post on a regular basis. Though the referred circulars made provision for making the posts under regular establishment but as per policy of the Government no such step during his service tenure was taken with the concurrence of the Finance Department and his repeated representation to make the post regular were also turned down and after his going to retirement the scheme/project also came to an end in 1995 and prior to that as well the Ministry of Finance has turned down a proposal for making certain posts regular, the appellant was not entitled to claim regularization of his service as the appellant who has been working in a project and since retired would have no vested right. Once the project comes to an end the services of the employees in the project also come to an end.
20. But of late, after the appellant went on retirement 1992 the Establishment Division issued a Memo dated 28.10.1993 to regularise certain posts including 5 posts of Assistant Engineer/Sub-Divisional Engineer out of the work-charged employees of the project but the Ministry of Finance by its memo dated 5.1L1994 refused to accord any permission to accord those 5 posts of Assistant Engineer/Sub-Divisional Engineer to be brought into regular establishment as required under the aforesaid notifications dated 28.3.1969, 21.4.1972 and 8.10.1974 and further observed that upon retirement of those employees, those posts shall be deemed to have been abolished. The learned Deputy Attorney General has further submitted that meanwhile in 1995 the said project of the appellant has been completed and presently not in existence inasmuch as the employees working under a project have no vested right so as to claim regularisation of their services avail any pension benefits. The learned Deputy Attorney General has referred to the decision in (2003) 5 Supreme Court Cases 388 supra wherein it has been held, inter alia, that:
"When the work of the Scheme had come to an end, the respondents were not entitled to claim regularisation of their services. Even though their services were continued after 31-3-1994 by virtue of an interim order passed in the writ petition, they cannot claim benefit of regularisation of their services as a matter of right. This Court in State of H.P. v. Nodha Ram in para 4 has stated thus: (SCC pp. 478-79)
"4. It is seen that when the project is completed and closed due to nonavailability of funds, the employees have to go along with its closure. The High Court was not right in giving the direction to regularise them or to continue them in other places. No vested right is created in temporary employment. Directions cannot be given to regularise their services in the absence of any existing vacancies nor can directions be given to the State to create posts in a non-existent establishment. The Court would adopt pragmatic approach in giving directions. The directions would amount to creating of posts and continuing them despite non-availability of the work. We are of the considered view that the directions issued by the High Court are absolutely illegal warranting our interference. The order of the High Court is, therefore, set aside."
21. We have found that though the appellant was appointed as a work charged employee but no such permanent post was created in the project so as to avail any scope for regularization of the appellant as per the circular/notifications and the appellant though made representations all through but upon his going on pension in 1992 thereafter the Government, Ministry of Establishment recommended for regularization of 5 posts of Assistant Engineers but by notification dated 5.11.1994 issued by the Ministry of Finance no such posts was regularized and it is on record that the said project also was completed in 1995. Though the circular or administration instructions have been specifically declared as order making rule contained in Memo issued by the authority but the same may not-be treated as statutory rules having no statutory backing but no such regular posts being available for regularization, a work-charged employee could not be regularized inasmuch as no such promissory estoppel could be claimed under the circumstances or the Government may be compelled to perform their duties as an obligation in the absence of any such legal footing for the appellant to be accommodated.
22. We also do not find any scope for regularization of the service of the appellant as there is no existence of such regular posts and more-so, when a project has already been ceased to exist to grant any relief by exercising our discretion under Article 104 of the Constitution for doing complete justice. This being the position we do not find any substance in the submissions of the learned Counsel for the appellant.
The appeal is dismissed without any order as to cost.