Md. Ahia Mondal and others Vs. Bangladesh and others, (Kazi Md. Ejarul Haque Akondo, J.)

Case No: Writ Petition No. 3882 of 2016

Judge: Zinat Ara, J And Kazi Md. Ejarul Haque Akondo, J

Court: High Court Division,

Advocate: Mr. Shafique Ahmed with Mr. Aminul Haque with Mr.Mahbub Shafique and Mr. Khandakar Nazmul Ahsan, Advocates ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Md. Ahia Mondal, and others

Respondent: Government Bangladesh and others

Subject: Investment Corporation of Bangladesh Ordinance

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Zinat Ara, J

And

Kazi Md. Ejarul Haque Akondo, J

 

Judgment on

05.04.2017

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Md. Ahia Mondal, and others

. . .Petitioners

-Vs-

Government Bangladesh and others          

...Respondents

Investment Corporation of Bangladesh Ordinance (XL of 1976)

Section 36

Constitution of Bangladesh, 1972

Articles 27 and 31

As per the provision of section 36 of the Investment Corporation of Bangladesh Board of Directors of the ICB may make regulations, not inconsistent with the provisions of the Ordinance and the Rules, to provide for all matters for which provision is necessary or expedient for carrying out the purpose of this Ordinance. In exercise of such power the Board of Directors of the ICB made ÓBb‡fó‡g›U K‡c©v‡ikb Ae evsjv‡`k (Kg©KZ©v I Kg©Pvix) PKzix cÖweavbgvjv-1993Ó for amongst other, the recruitment, remuneration, promotion and other terms and conditions of service of the officers and other employees of the ICB, following which the petitioners were appointed in their respective posts in 1989 and 1990 and thereafter, promoted to the posts of Senior Principal Officers thereunder in the year 2007. Subsequent thereto, both the Nitimalas, 2009 and 2011 were issued by the respondents concerned containing criteria/ marking system for promotion of the officers and employees of the ICB, which were not approved by the Government and published in the official gazette as such, the said Nitimalas have no force of law. Therefore, there is nothing to challenge the vires of law and as such , violation of any fundamental right of the petitioners do not arise at all so there is no question of enforcement of any fundamental right of the petitioners.           . . .(24 and 25)

Administrative Tribunal Act (VII of 1981)

Section 4

Administrative Tribunal (amendment) Ordinance (LX of 1984)

Section 2(aa)

The Investment Corporation of Bangladesh is a statutory public authority as per section 2(aa) of the Administrative Tribunals (amendment) Ordinance, 1984 and included in the schedule of the Administrative Tribunal Act, 1980. As per amended provision of section 4 of the said Act, 1980 the  Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service. Indisputably, promotion falls within the terms and conditions of service as such the grievance of the petitioners absolutely falls within the jurisdiction of the Administrative Tribunal. Since the impugned Nitimalas have no force of law the same can be challenged before the Administrative Tribunal but the petitioners raised the question of violation of fundamental right just to invoke the jurisdiction of this Court under Article 102 of the Constitution.        . . .(25)

Jibonbima Corporation and others Vs. Mohammad Abu Kawsar Jalil and others; Md. Junnur Rahman Vs. Bangladesh Shilpa Rin Sangstha and others 17 BLD (HCD) 488 and Delwar Hossain Mollah and others Vs. Bangladesh and others 24 BLD (AD) 303 ref.

Mr. Shafique Ahmed with

Mr. Aminul Haque with

Mr.Mahbub Shafique and

Mr. Khandakar Nazmul Ahsan, Advocates

- - -For the petitioners

Dr. Shahdeen Malik with

Mr. Monjurul Alam, Advocates

- - -For the respondent No.6

Mr. Fazle Noor Taposh with

Mr. Mohammad Mehedi Hasan Chowdhury, Advocates

- - - For the added respondent Nos.7-26

JUDGMENT

Kazi Md. Ejarul Haque Akondo, J: In this Rule Nisi, issued under article 102(2) of the Constitution of the People’s Republic of Bangladesh, the respondents were called upon to show cause as to why the ICB Officers and Employees Promotion Nitimala, 2009 (Annexure-E) as well as ICB Officers and Employees Promotion Nitimala, 2011 (Annexure-J) which are ultra vires to the regulation 6(3) of the ICB (Officers and Employees) Service Regulations, 1993 and the office order being Memo No. 41/2011 dated 14.06.2011 (Annexure-H) and office order being No. 93/2011 dated 27.12.2011 (Annexure-M) signed by the respondent No.6 promoting 20 Senior Principal Officers as Assistant General Managers (AGMs) bypassing the instant writ petitioners should not be declared to have been issued without lawful authority and are of no legal effect and to show cause as to why necessary direction should not be given upon the respondents to give the petitioners anti-dated due seniority  and/or pass such other or further order or orders as to this Court may deem fit and  proper.

2.             At the time of issuance of the Rule, all further promotions from the post of Assistant General Manager (AGM) to Deputy General Manager (DGM) were stayed for a period of 3(three) months from date, which was subsequently extended from time to time.

3.             Facts for the purpose of disposal of the Rule, in short, are that the petitioners are the service holders by profession, serving in various departments of Investment Corporation of Bangladesh (hereinafter referred to as the ICB) located in Dhaka. They pursuant to a circular published for recruitment in the post of officer of the ICB applied for the said post. After completion of the selection process they were selected for the post and after receiving the appointment letters, they joined in the said post on various dates i.e. on 28.10.1989, 29.10.1989, 13.11.1989, 10.01.1990, 03.02.1990 and 16.09.1990 and ultimately made permanent in their respective posts by the authority of ICB. Thereafter, the authority concerned  vide office order No.36/97  dated 05.05.1997 and office order being No.98/98 dated 01.11.1998 had promoted the petitioners to the posts of Principal Officers and they joined in their respective posts on various dates (Annexure-B and B1). Subsequently, the authority concerned also promoted the petitioners to the posts of Senior Principal Officers through an office order being No.47/07 dated 14.06.2007 and they joined in their respective promoted posts on various dates. Thereafter, the concerned authority had prepared a seniority list on 31.12.2008 and as per the said seniority list of the ICB, the position of the petitioners were  76,79,85,88,90 and 92 among all the officers of the ICB whereas in the same list, the position of the petitioners were 8,11,17,20,22 and 24 among the Senior Principal Officers of the ICB (Annexure-D).

4.             It has been stated that later the “LjÑLaÑ¡/LjÑQ¡l£ f­c¡æ¢a e£¢aj¡m¡” was approved at the 347th meeting of the Board of Directors of the ICB on 31.03.2009 (in short, the Nitimala, 2009), which is a clear violation of the ICB (Officers and Employees) Service Regulations, 1993 (hereinafter referred to as the Regulations, 1993). As per regulation 6(3) of the said Regulations, a promotion will be given to an officer on the basis of seniority-cum-merit, whereas under the heading of the (L) LjÑLaÑ¡ f­c¡æ¢a e£¢aj¡m¡” of the said Nitimala, 2009 an arrangement was made to be qualified for a promotion. By that arrangement, 15 marks have been allocated for viva voce and 50 marks for Annual Confidential Report (ACR) out of 100 marks. But it has been laid down that a candidate must get 10 marks at viva voce, 35 marks at ACR and in total 80 marks to be eligible for promotion, which is a clear violation of regulation 6(3) of the Regulations, 1993. Under the Nitimala, 2009, the authority concerned called more or less 41 Senior Principal Officers including the petitioners for an interview on 11.06.2011 for promotion to the post of Assistant General Manager (AGM). Subsequently, 09 Senior Principal Officers were promoted to the posts of AGMs through an office order being No.41/2011 dated 14.06.2011. The petitioners were called for the said interview as their service records were satisfactory, for as per regulation 6(3) of the  Regulations, 1993 if the service record of any officer is found satisfactory, then he will be promoted on the basis of seniority-cum-merit (®~SÖWa¡ ab¡ ®jd¡). But in the meantime, the ICB made the ICB Employees Promotion Nitimala, 2011 (hereinafter referred to as the Nitimala, 2011),  which came into force on 02.11.2011 but the ICB with a malafide intention  circulated it to the employees of the ICB more than one month later through an administrative circular being No. 28/2011 dated 27.12.2011. Subsequent thereto, the ICB authority illegally promoted 13 Senior Principal Officers to the posts of AGMs under the old Nitimala hiding the new one and bypassing the petitioners through an office order being No.93/2011 dated 27.12.2011 of which 07 Senior Principal Officers were juniors to the petitioners.

5.             It has also been stated that the petitioners were previously considered for promotion and were called for the promotion interview for their satisfactory service records. But they had been excluded and bypassed by the junior officers. However, thereafter 07 Senior Principal Officers including the petitioners were promoted to the posts of AGMs through office order No. 62/2012 dated 26.07.2012 though they previously got required pass marks to be promoted i.e. got 10 marks or more in interview, and in total 80 marks or more out of 100 marks, which was not given to them with malafide intention. It has been stated that under the provision of regulation 6(3) of the Regulations, 1993 promotion is required to be made on seniority-cum-merit basis, but under the old Nitimala a candidate must secure 10 marks at viva voce out of 15 marks; 35 marks at ACR out of 50 marks and in total 80 marks out of 100 marks; and as per the new Nitimala a candidate must secure 40% marks in viva voce and in total 80% marks to be eligible for the promotion, which is clearly ultra vires to the said Regulations, 1993 and also  ultra vires to the fundamental rights guaranteed under articles 27 and 31 of the Constitution of the People’s Republic of Bangladesh (hereinafter referred to as the Constitution).

6.             It has further been stated that in 2002, during the promotion of some data entry/control operators in the posts of ‘supervisors’ the authority concerned arbitrarily promoted some officers, who were juniors to the other officers on the basis of  merit and later, upon application of the said senior officers and getting serious objections from every corner of the ICB, the authority concerned was compelled to make correction on the seniority list by giving seniority to the senior officers through its letter dated 19.02.2012. After the said promotion, the petitioners made representation to get back their seniority and the concerned authority had assured them to look into the matter, but in fact they did not take any step to that effect. Subsequently, they again made representations to the ICB authority on 30.11.2014, 12.10.2015 and lastly on 10.02.2016 but without any result and hence this application.  

7.             The respondent No.6-Managing Director, ICB entered appearance and contested the Rule by filing an affidavit-in-opposition  stating, inter-alia, that the petitioners were considered for promotion and they participated in the promotion process under both the Nitimalas, 2009 and 2011 and lastly, they were promoted to the posts of AGMs on 10.10.2012 under the said Nitimala, 2011 and had served in the said promoted posts for more than 03 years and 06 months till filing of the instant writ petition as such, they cannot challenge the vires of the said Nitimalas after enjoying promotions thereunder. Regulation 6(3) of the Regulations, 1993 provides that ®~SÖWa¡ ab¡ ®jd¡l ¢i¢š­a f­c¡æ¢al j¡dÉ­j ¢e­u¡N Ll¡ qC­h, a­h Q¡L¤l£l hªš¡¿¹ p­¿¹¡oSeL e¡ qC­m ®L¡e hÉ¢J²­L f­c¡æ¢al SeÉ h¡R¡C L¢j¢V p¤f¡¢ln L¢l­h e¡” which means seniority and merit would be the criteria for promotion. The Nitimalas, 2009 and 2011 had been adopted for the purpose of evaluating the merit of a candidate and also for examining satisfactory service of a candidate for promotion. In other words, the said Nitimalas were formulated to carry out and implement the intention of the provision of Regulations, 1993. Moreover, the said Nitimalas are in no way contradictory to the Regulations, 1993 as such, those are intra vires. It has also been stated that the writ petition is barred by estoppels and acquiescence since the petitioners were considered for promotion and participated in the promotion process under both the said Nitimalas, 2009 and 2011. They are the beneficiaries of the said Nitimalas as such they have no locus-standi to file the instant writ petition challenging the said Nitimalas under which they were promoted. Moreover, the ICB is included in the schedule of the Administrative Tribunal Act, 1980 as such, the Administrative Tribunal has the exclusive jurisdiction to hear and determine the terms and conditions of service of the employees of the ICB including the promotion matters and the instant writ petition is not maintainable.

8.             The petitioners filed an affidavit-in-reply to the said affidavit-in-opposition controverting the contents made therein.

9.             The added respondent Nos.7-26 also contested the Rule by filing a separate affidavit-in-opposition stating the similar facts as stated in the affidavit-in-opposition filed by the respondent No.6.

10.         At the outset, Mr. Shafique Ahmed, the learned Advocate appearing with Mr. Mahbub Shafique and Mr. Khandakar Nazmul Ahsan, Advocates for the petitioners submits that under both the Nitimals, 2009 and 2011, 15 marks has been allocated for viva voce test and 50 marks for ACR out of 100 marks, but it has been laid down that a candidate must get 10 or 40% marks at viva voce test, 35 marks at ACR and in total 80 marks out of 100 to be eligible for promotion, which is ultra vires to the provision of regulation 6(3) of the Regulations, 1993 as promotion is required to be made on seniority-cum-merit basis under the said Regulations and also clearly ultra vires to the fundamental rights guaranteed under articles 27 and 31 of the Constitution.

11.         He next submits that it was not only the law, but also a long standing practice of the ICB that the promotion would be made on the basis of seniority-cum-merit, therefore, it was a legitimate expectation of the petitioners that they will be treated on the basis of seniority-cum-merit  as such, the said Nitimalas, 2009 and 2011 as well as the impugned office orders signed by the respondent No.6 promoting 20 Senior Principal Officers bypassing the petitioners should be declared to have been made without lawful authority and are of no legal effect.

12.         He again submits that under both the impugned Nitimalas for promotion, the ICB has unrestricted and unguided powers to promote anybody or exclude anyone, which is prone to arbitrariness and misuse and as a result, not only the petitioners have been superseded by various persons but the other employees of the ICB have also been superseded by junior employees on several occasions, but in a system of promotion on the basis of seniority-cum-merit, there is no scope for such supersession by the junior employees.

13.         He lastly submits that the public functionaries is to be vigilant, fair and duty bound in exercising the statutory power with which  they are vested in for the public interest, but in the instant case the respondents willfully and deliberately have not acted in accordance with law, which is highly arbitrary and malafide as such, the said Nitimalas, 2009 and 2011 as well  the impugned office orders passed by the respondent No.6 promoting 20 Senior Principal Officers bypassing the petitioners should be declared to have been made without lawful authority and are of no legal effect.

14.         In support of his submissions he relied on the decision passed by our Apex Court in the case of Jibonbima Corporation and others vs. Mohammad Abu Kawsar Jalil and others in connection with Civil Appeal No.281 of 2010 on 02.09.2015.

15.         Conversely, Dr. Shahdeen Malik, the learned Advocate appearing with Mr. Monjurul Alam, Advocate on behalf of the respondent No.6 submits that the petitioners were considered for promotion and they participated in the promotion process under both the Nitimalas, 2009  and 2011 and  lastly, they were promoted to the posts of AGMs on 10.10.2012 under the Nitimala, 2011 and since then they served in the said promoted posts for more than 03 years and 06 months till filing of the instant writ petition as such, they cannot challenge the vires of the said Nitimalas after enjoying promotion thereunder.

16.         He further submits that the petitioners are the beneficiaries of the impugned Nitimalas as such they have no locus standi to file the instant writ petition challenging the said Nitimalas under which they were promoted.

17.         He lastly submits that the ICB is included in the schedule of Administrative Tribunal Act, 1980 as such, the Administrative Tribunal has the exclusive jurisdiction to hear and determine the terms and conditions of service of the employees of the ICB including promotion matters as such the instant writ petition is not maintainable.

18.         In support of his submissions he relied on the decision in the case of Md. Junnur Rahman vs. Bangladesh Shilpa Rin Sangstha and others reported in 17 BLD (HCD) 488.

19.         On the other hand, Mr. Sheikh Fazle Noor Tapas, the learned Advocate appearing with Mr. Mohammad Mehedi Hasan Chowdhury, Advocate for the added-respondent Nos.7-26 submits that after conducting all the necessary formalities, examinations, etc. the Promotion Committee held a meeting on 11.06.2011 and in that meeting promotion of 22 candidates was confirmed and 17 others including the petitioners were not promoted due to their failure to achieve the minimum overall pass marks i.e. 80 marks and thereafter, by the impugned office orders No. 41/2011 dated 14.06.2011 and 93/2011 dated 27.12.2011 the authority concerned promoted the respondent Nos.7-26 and another to the posts of AGMs and then confirmed their said promotion.

20.         He lastly submits that regulation 6(3) of the Regulations, 1993 provides that ®~SÉÖWa¡ ab¡ ®jd¡l ¢i¢š­a f­c¡æ¢al j¡dÉ­j ¢e­u¡N Ll¡ q­h, a­h Q¡L¤l£l hªš¡¿¹ p­¿¹¡oSeL e¡ qC­m ®L¡e h¡¢J²­L f­c¡æ¢al SeÉ h¡R¡C L¢j¢V p¤f¡¢ln L¢l­h e¡” which means seniority and merit would be the criteria for promotion. The Nitimalas, 2009 and 2011 had been adopted for the purpose of evaluating the merit of a candidate and also for examining satisfactory service of a candidate for promotion as such, those Nitimalas are in no way contradictory and ultra vires to the Regulations, 1993. In the circumstances, the learned Advocate prays for discharging the Rule.

21.         In support of his submissions Mr. Tapas has relied on the decision in the case of Delowar Hossain Mollah and others Vs. Bangladesh and others reported in 24 BLD (AD) 303.

22.         We have considered the submissions of the learned Advocates of both the contending parties and have perused the writ petition, affidavit-in-oppositions, affidavit-in-reply to the affidavit-in-opposition, cited decisions and the relevant laws.

23.         It appears that the petitioners have challenged the “LjÑLaÑ¡/LjÑQ¡l£ f­c¡æ¢a e£¢aj¡m¡ ” which was approved by the Board of Directors of the ICB in its 347th meeting held on 31.03.2009 (Annexure-G to the writ petition) and the “ Ce­iÖV­j¾V L­f¡Ñ­lne Ah h¡wm¡­cn Hl LjÑLaÑ¡/LjÑQ¡l£ f­c¡æ¢a e£¢aj¡m¡, 2011” issued by the Ministry of Finance and circulated by the ICB being Administrative Circular No.28/2011 dated 27.12.2011 (Annexure-J to the writ petition) on the count that under both the said Nitimalas 15 marks has been allocated for viva voce test and 50 marks for ACR out of 100 marks; but it has been laid down that the candidate must get 10 or 40% marks at viva voce test; 35 marks at ACR and in total 80 marks out of 100 marks  to be  eligible for promotion, which is ultra vires to the provision of regulation 6(3) of the Regulations, 1993, for promotion is required to be made on seniority-cum-merit basis, and also ultra vires to the fundamental rights of the petitioners guaranteed under articles 27 and 31 of the Constitution.

24.         As per the provision of section 36 of the Investment Corporation of Bangladesh Ordinance, 1976 (Ordinance No.XL of 1976) [hereinafter referred to as the Ordinance, 1976] the Board of Directors of the ICB may make regulations, not inconsistent with the provisions of the Ordinance and the Rules, to provide for all matters for which provision is necessary or expedient for carrying out the purpose of this Ordinance. In exercise of such power the Board of Directors of the ICB made “Ce­iÖV­j¾V L­f¡Ñ­lne Ah h¡wm¡­cn (LjÑLaÑ¡ J LjÑQ¡l£) Q¡L¤l£ fË¢hd¡ej¡m¡-1993” for, amongst other, the recruitment, remuneration, promotion and other terms and conditions of service of the officers and other employees of the ICB, following which the petitioners were appointed in their respective posts in 1989 and 1990 and thereafter, promoted to the posts of Senior Principal Officers thereunder in the year 2007. Subsequent thereto, both the aforementioned Nitimalas, 2009 and 2011 (Annexure-G and J to the writ petition) were issued by the respondents concerned containing criteria/marking system for promotion of the officers and employees of the ICB, which were not approved by the Government and published in the official gazette as such, the said Nitimalas have no force of law.

25.         In the case in hand, after issuance of the impugned Nitimalas, 2009 and 2011 the petitioners had participated in the promotion process and lastly promoted  to the posts of AGMs on 10.10.2012 and thus, they have served in their respective promoted posts for more than 03 years till filing of the instant writ petition; but they raised the question of violation of their fundamental rights of equality before the law and right to protection of law guaranteed under articles 27 and 31 of the Constitution by issuance of the impugned Nitimalas. We have already observed hereinbefore that the impugned Nitimalas, 2009 and 2011 have no force of law, therefore, there is nothing to challenge the vires of law and as such, violation of any fundamental right of the petitioners do not arise at all so there is no question of enforcement of any fundamental right of the petitioners. However, the Investment Corporation of Bangladesh is a statutory public authority as per section 2 (aa) of the Administrative Tribunals (amendment) Ordinance, 1984 [Ordinance No. LX of1984] and included in the schedule of the Administrative Tribunals Act, 1980 (hereinafter referred to as the Act, 1980). As per amended provision of section 4 of the said Act, 1980 the Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public authority in respect of the terms and conditions of his service. Indisputably, promotion falls within the terms and conditions of service as such the grievance of the petitioners absolutely falls within the jurisdiction of the Administrative Tribunal. Since the impugned Nitimalas have no force of law the same can be challenged before the Administrative Tribunal but the petitioners raised the question of violation of fundamental right just to invoke the jurisdiction of this Court under article 102 of the Constitution.

26.         In the decision in the case of Md. Junnur Rahman Vs. Bangladesh Shilpa Rin Sangstha and others reported in 17 BLD (HCD) 488 in paragraph Nos.16, 17 and 18 it was observed:

“Since the learned Advocate for the petitioner contended that inspite of the decision of the Appellate Division in the case of Mujibur Rahman reported in 44 DLR writ petition for enforcement of fundamental right is maintainable and he addressed us on this question at great length the same requires to be considered. There is no doubt that right to move this Court for enforcement of fundamental right under Article 102(1) of the Constitution is itself a fundamental right guaranteed under Article 44 of the Constitution. But the question is whether an employee or officer of B.S.R.S. can move this Court for enforcement of any fundamental right in respect of matters falling within the exclusive jurisdiction of the Administrative Tribunal. Administrative Tribunal has jurisdiction in respect of service matters of the employees and officers of B.S.R.S. in view of the amendment of the Administrative Tribunal Act by the Administrative Tribunal (Amendment) Ordinance, 1984. Section 4 of the Administrative Tribunal Act after such amendment provides that the Administrative Tribunal shall have exclusive jurisdiction to hear and determine applications made by any person in the service of the Republic or of any statutory public authority (which includes B.S.R.S.) in respect of the terms and conditions of his service including pension rights or in respect of any action taken in relation to him as a person in the service of the Republic or of any statutory public authority. Promotion being part of the terms and conditions of the service of any such person a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal. To overcome the difficulty petitioner alleged violation of fundamental right of equality before the law and equal opportunity in respect of his employment under Articles 27 and 29 of the Constitution by the impugned Administrative Circular making guideline for promotion and by the impugned order promoting the respondent Nos.4-8 excluding him. We have already seen that the aforesaid guideline has been made by the Board of Directors in exercise of its power under Article 7(1) of the B.S.R.S. Order for administration of the affairs of the Sangstha subject to the rules made under the order. Regulation 11(4) of the B.S.R.S. Employees Service Regulations 1988 though provided that promotion to the post in the scale of pay of Tk.3700-4825/-and above shall be on merit-cum-seniority basis there is nothing in the said Regulations for assessing the merit of the candidates for promotion. So, in exercise of power under Article 7(1) of the Order Board of Director of B.S.R.S. by the aforesaid impugned Administrative Circular made guideline for the promotion committee to assess merit of the candidates for promotion. In view of the same we find that the impugned Administration Circular is not any rule or by-law or regulation which requires publication in the official gazette. Moreover, the impugned Administrative Circular not being rule or regulation but merely an Administrative Circular for internal guidance of the promotion committee to assess the merit of the candidates for promotion the same is an ordinary document validity of which can be challenged before the Administrative Tribunal. Had the same been any rule or regulation of B.S.R.S. then Administrative Tribunal could not declare the same as void for violation of any fundamental right as could be done by this Court in an application under Article 102(1) of the Constitution. Only in such circumstances writ petition by the petitioner could be maintainable. The impugned guideline not being any service regulation and violated any fundamental right of the petitioner there is no question of enforcement of any fundamental right of the petitioner by filing a writ petition by avoiding the Administrative Tribunal which is competent to decide the grievance of the petitioner.(Para-16)

We have already found that petitioners merit was assessed by the promotion committee and all other candidates fared better than him in the A.C.R as well as in the interview. There is no allegation of malafide or bias against any member of the promotion committee. As he failed to obtain qualifying marks in the interview he has challenged the provision for interview earmarking 25 marks out of 100 marks in the interview and keeping 18 marks as the qualifying marks therein. Though he was promoted from the post of P.O. to the post of S.P.O facing interview in 1988 he raised the question of violation of fundamental rights guaranteed under Articles 27 and 29 of the Constitution only to come to this Court with a writ petition. On consideration of the facts and circumstances of the case we found no violation of fundamental right as alleged. It appears to us that out of desperation as observed by the Appellate Division in Mujibur Rahman’s case petitioner has alleged violation of fundamental rights to come before this Court for speedy relief avoiding lengthy adjudication by the Administrative Tribunal.(Para-17)

Learned Advocate for the petitioner could not show any authority in support of his contention that the administrative circular is also law and is liable to be struck down if found violative of any fundamental right. In the case of Administrative Tribunal Vs. Muklesur Rahman reported in 36 DLR-71 it has been held that circulars issued by the Government are for the guidance of the executives and the same have no legal force. Since there is no question of violation of any fundamental right in formulating the guideline by the B.S.R.S. providing for interview etc. and the impugned Administrative Circular is not law within the meaning of Article 152 of the Constitution we are of the view that the writ petition filed by the petitioner is not maintainable. (Para-18)”   

27.         The facts and circumstances of the instant case being similar the view taken in the above referred decision is applicable in the instant writ petition. Thus, we find no merit in the present Rule.

28.         Before parting with the judgment we would like to note that under section 36 of the Ordinance, 1976 the Board of Directors of the ICB shall have to make Regulations relating to promotion of the officers and other employees of the ICB but the Board has framed the impugned Nitimalas i.e. administrative orders, which is without jurisdiction and apparently violative of section 36 of the said Ordinance.

29.         Be that as it may, in the instant writ petition the petitioners have not challenged the Nitimalas for violation of any provision of the principal legislation i.e. the Ordinance, 1976 in framing the impugned Nitimalas so we are unable to give any relief to the petitioners in this writ petition. However, the petitioners are at liberty to file fresh writ petition, if so advised, to agitate their grievance so far as it relates to the violation of the Ordinance, 1976 in framing the impugned Nitimalas.

30.         In view of the above backdrop, we do not find any substance in the submissions made by the learned Advocate for the petitioners and merit in the Rule.

31.         In the result, the Rule is discharged without any order as to costs.   

32.         Stay granted at the time of issuance of the Rule is hereby recalled and vacated.

33.         Communicate this judgment to the respondent Nos.5 and 6 at once.

Ed.


Writ Petition No. 3882 of 2016