Md. Hamidur Rahman and others Vs. BTCL and others, (Moyeenul Islam Chowdhury, J.)

Case No: Writ Petition No. 16860 of 2012

Judge: Moyeenul Islam Chowdhury, J And Md. Ashraful Kamal, J.

Court: High Court Division,

Advocate: Mr. Mohammad Ibrahim Khalil with Mr. Mansurul Haque Shafi, Advocates ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Md. Hamidur Rahman and others

Respondent: Bangladesh Telecommunications Company Ltd. (BTCL) and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-12-02

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Moyeenul Islam Chowdhury, J

And

Md. Ashraful Kamal, J.

 

Judgment on

12.07.2018

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Md. Hamidur Rahman and others

. . . Petitioners

-Versus-

Bangladesh Telecommunications Company Ltd. (BTCL) and others

. . . Respondents

Constitution of Bangladesh, 1972

Articles 27, 29, 31,102 and 117

The petitioners being employees of a 100% Government-owned Company, namely, BTCL cannot be ipso facto dubbed as Government servants. Over and above, it appears that the BTCL is not included in the Scheduled of the Administrative Tribunals Act, 1981. However, assuming for the sake of argument that the petitioners are Government servants, in that event too, they are entitled to invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution for enforcement of their fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution. Against this backdrop, we led to hold that the Writ Petition is maintainable. This Writ Petition is in the nature of a Writ of Mandamus. The petitioners have a legal right not to be discriminated against in respect of their scale of pay and the BTCL has a legal duty to ensure the equal pay of the petitioners (seniors) with their junior Md. Abdul Awal, to say the least. As the petitioners and Md. Abdul Awal are similarly situated, they must be treated alike. In a word, they cannot be dissimilarly treated at all. The petitioners’ fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution must not be allowed to be trampled. We are oath-bound to protect and enforce the fundamental rights of the citizens of the country.       . . .(34 and 35)

Mosharraf Hossain Chowdhury Vs. General Manager, Titas Gas Transmission and Distribution Co. Ltd. and another; A.K.M Ayub Ali Vs. Eastern Refinery Ltd. and others 1981 BLD (AD) 61 and Zahir Akhter (Md) and 44 others Vs. Bangladesh Biman Corporation and another 61 DLR (HCD) 446 ref.

Mr. Mohammad Ibrahim Khalil with

Mr. Mansurul Haque Shafi, Advocates

. . . For the petitioners.

Ms. Quamrun Nessa, Advocate      

. . . For the respondent No. 1.

Mr. Mohammad Abdul Haque, Advocate

...For the added respondent Nos. 4-29.

 

JUDGMENT

Moyeenul Islam Chowdhury, J: On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh filed by the petitioners, a Rule Nisi was issued calling upon the respondents to show cause as to why they should not be directed to give retrospective effect to the promotion of the petitioners as Non-Diploma Sub-Assistant Engineers (SAEs) and equal pay with their juniors with effect from 12.04.1992 as evidenced by Memo No. Hpx 5-25/84-160 dated 16.08.2010 (Annexure- ‘A’ to the Writ Petition) issued by the Bangladesh Telecommunications Company Limited (BTCL) and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.             The case of the petitioners, as set out in the Writ Petition, in short, is as follows:

         The petitioners were appointed by the Bangladesh Telegraph and Telephone Board (BTTB) as Telecommunication Mechanics (TCMs) on different dates between 1979 and 1988. Anyway, the functions of the BTTB were taken over by the Bangladesh Telecommunications Company Limited (BTCL) and the services of the petitioners were transferred to the BTCL under the provisions of section 5A(3) of the Bangladesh Telegraph and Telephone Board (Amendment) Act, 2009 (Act No. 25 of 2009) which came into effect on 1st June, 2008. Under the Recruitment Rules (Officers and Employees) of the BTTB, 1984 (hereinafter referred to as the Recruitment Rules of 1984), the petitioners were required to complete 5(five) years service and qualify in the prescribed competitive tests for promotion as Telecommunication Technicians (TCTs) from TCMs. Having completed 5(five) years service and successfully passed the competitive tests, they were promoted as TCTs. Thereafter having served for another 5(five) years as TCTs and qualified in the prescribed competitive tests, they were promoted as Non-Diploma Sub-Assistant Engineers (SAEs). As many as 174 TCTs were promoted as SAEs (Batch- 15) on 19.11.2007 and another 94 TCTs were promoted as SAEs (Batch- 16) on 13.12.2007. Subsequently on completion of necessary training, a final Gradation List of Non-Diploma SAEs was published on 24.10.2011. Earlier 48 SAEs were granted seniority with retrospective effect from 12.04.1992 vide Memo No. Hpx 5-25/84-160 dated 16.08.2010. But surprisingly enough, the petitioners were granted seniority as SAEs with retrospective effect from 13.10.2002 vide Memo No. pwØq¡fe (2)/7-6/2001 dated 24.10.2011. One Md. Abdul Awal was granted seniority as Non-Diploma SAE with retrospective effect from 12.04.1992. His name is shown at serial no. 889 in the final Gradation List of Non-Diploma SAEs; but as per the said Gradation List, he is junior to all the petitioners whose names appear from serial nos. 554 to 888. However, Md. Abdul Awal (serial no. 889), who is junior to the petitioners, was granted 3(three) time scales inasmuch as he was given retrospective seniority from 12.04.1992 as SAE by the Memo dated 16.08.2010. Consequentially he is now drawing salary in Grade-VIII in the pay scale of Tk. 12,000-21,600/- according to the National Pay Scale of 2009. But the petitioners, though senior to him, are now drawing salary in Grade- XI in the pay scale of Tk. 6,400-14,255/- as per the National Pay Scale of 2009. This anomalous position was created by giving Md. Abdul Awal retrospective seniority in violation of the provisions of the Recruitment Rules of 1984. Md. Abdul Awal, though entered into service earlier as TCM, could not qualify in the competitive tests for promotion as TCT and then as SAE. But the respondents had granted him retrospective seniority and the higher grade of salary to the prejudice of the petitioners.

3.             However, in order to rectify this anomalous position, the BTCL granted equalization of pay to the petitioners vide order no. pwØq¡fe (2)/7-6/2001 dated 05.05.2011. But the office of the Chief Accounts Officer did not accept this order of equalization of pay as no reasons/justifications were given in the order dated 05.05.2011. Thereafter the BTCL by its order no. pwØq¡fe (2)/7-6/2001 dated 24.10.2011 allowed retrospective promotion to 268 Non-Diploma SAEs including the petitioners. By this order dated 24.10.2011, the earlier order dated 05.05.2011 was cancelled. Again the Chief Accounts Officer wanted some clarifications from the BTCL and the BTCL clarified the issue vide its Memo No. pwØq¡fe (2)/7-6/2001 dated 03.12.2012. The BTCL explained the circumstances under which the petitioners could not be promoted on time for lack of preparation of seniority list. The promotion of Batch- 15 giving retrospective effect was made on 19.11.2007 and that of Batch-16 giving retrospective effect was made on 13.12.2007 as SAEs. The pay equalization sought by the petitioners with Md. Abdul Awal is for fixation of their pay scale in Grade- VIII instead of Grade- XI in the National Pay Scale of 2009. Although the BTCL is fully competent to equalize the pay of the petitioners with that of their junior Md. Abdul Awal by conceptually shifting back their date of promotion to that of Md. Abdul Awal, yet the BTCL is not coming up to do so.

4.             In the Supplementary Affidavit dated 26.02.2014 filed on behalf of the petitioners, it has been averred that the promotion of a group of 35 Non-Diploma SAEs was given retrospective effect by an office order dated 24.10.2011. But the case of the petitioners was not considered because of the pendency of the instant Writ Petition as is apparent from the letter dated 31.07.2013 of the Chief Accounts Officer.

5.             The BTCL (respondent no. 1) has contested the Rule by filing an Affidavit-in-Opposition. The case of the BTCL, as set out therein, in brief, runs as under:

         The Writ Petition is not maintainable inasmuch as the services of the petitioners were transferred to the BTCL from the BTTB under section 5A(3) of the Act No. 25 of 2009 and they are still in the service of the Government and as such they are Government servants. The promotion of as many as 48 Non-Diploma SAEs was given retrospective effect from 12.04.1992 in accordance with the Gradation List of the feeder posts of those SAEs and they were senior to the petitioners. Besides, the promotion of some of those 48 Non-Diploma SAEs was given retrospective effect on the basis of the judgment passed by the Administrative Tribunal, Dhaka in Administrative Tribunal Case No. 102 of 1984. As those 48 Non-Diploma SAEs were senior to the petitioners in the feeder posts and in view of the judgment of the Administrative Tribunal passed in Administrative Tribunal Case No. 102 of 1984, a Committee was formed by the BTCL. According to the recommendation of that Committee, those 48 Non-Diploma SAEs were given promotion with retrospective effect from 12.04.1992. As originally Md. Abdul Awal was senior to the petitioners, their pay can not be equalized with that of Md. Abdul Awal.

6.             In the Supplementary Affidavit-in-Opposition dated 05.04.2018 filed by the BTCL (respondent no. 1), it has been mentioned that according to the Recruitment Rules of 1984, a TCM is required to work for five years for promotion as TCT and another five years of service experience as TCT is also required for promotion as SAE. However, some of the petitioners who were appointed as TCMs on different dates between 1979 and 1988 having not met the requisite qualification as to the length of service as TCMs and TCTs are not entitled to get promotion as SAEs with retrospective effect from 12.04.1992.

7.             The added respondent nos. 4-29 have also contested the Rule by filing a separate Affidavit-in-Opposition. Admittedly, they are Diploma-holder SAEs. Their case, as set out in the Affidavit-in-Opposition, is almost similar to that of the BTCL (respondent no. 1). In that view of the matter, the case of the added respondent nos. 4-29 is not narrated here.

8.             In the Affidavit-in-Reply dated 15.04.2014 filed on behalf of the petitioners, it has been mentioned that the Gradation List as evidenced by Annexure-‘C’ to the Writ Petition is final. The Administrative Tribunal established under Article 117 of the Constitution has been given jurisdiction to hear and determine the petitions of the persons in the service of the Republic and some Government-owned Banks and Financial Institutions. The BTCL is not included in the Schedule of the Administrative Tribunals Act, 1981. As the petitioners are the employees of the BTCL, a 100% Government-owned company and as the BTCL is not included in the Schedule of the Administrative Tribunals Act, they are not required to approach the Administrative Tribunal concerned for equalization of their pay with that of their juniors.

9.             In the Supplementary Affidavit-in-Reply dated 08.05.2018 filed on behalf of the petitioners, it has been stated that the core issue in this Writ Petition is to remove the pay discrimination and to equalize the pay among the junior and senior Non-Diploma SAEs. When an authority is required to equalize the pay of junior and senior employees under the same Gradation List, the last promotion date of the incumbent senior employees has to be shifted back which is known as conceptual (d¡lZ¡Na) promotion. It is for the BTCL to fix up a conceptual date of the last promotion of the petitioners in order to equalize their pay with that of their juniors. Therefore, it is reasonably believed by the petitioners that if their last promotion date is conceptually shifted back like that of their juniors to 12.04.1992, their pay will be equalized. The petitioners are not seeking any direction for promotion as Non-Diploma SAEs. They were already promoted as SAEs long before filing of the Writ Petition. They are seeking a direction to equalize their pay with that of their juniors. The petitioners have prayed for equalization of their pay with that of their juniors by way of enforcing their fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution.

10.         Assuming for the sake of argument (but not conceding) that the petitioners are Government servants, even then the Writ Petition is maintainable for enforcement of their fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution. The pay equalization is the right of the senior employees who are getting lower pay than that of their juniors. It is also a duty of the BTCL to ensure equal pay for all Non-Diploma SAEs in the same Gradation List. The rule of pay equalization is that pay equalization will be effective from the date the pay discrimination has taken place. In the instant case, as the petitioners are getting much lower pay than that of their juniors since 03.10.2010 because of the laches of the BTCL, they are legally entitled to have their pay fixed in Grade- VIII of the National Pay Scale of 2009 effective from 03.10.2010.

11.         In the Supplementary Affidavit-in-Opposition dated 11.07.2018 filed by the BTCL (respondent no. 1), it has been mentioned that Md. Abdul Awal is senior to the petitioners vide office Memo dated 16.08.2010; though according to the Gradation List (Annexure-‘C’ to the Writ Petition), he is junior to them. The office Memo dated 16.08.2010 is still in force. The petitioners can not get any relief in this Writ Petition without challenging the office Memo dated 16.08.2010.

12.         At the outset, Mr. Mohammad Ibrahim Khalil, learned Advocate appearing on behalf of the petitioners, submits that indisputably the petitioners were initially appointed by the BTTB on different dates between 1979 and 1988 as TCMs and subsequently they were promoted as TCTs in 1997 and thereafter as SAEs on 19.11.2007 and although Md. Abdul Awal, a junior to the writ-petitioners as per the Gradation List as evidenced by Annexure-‘C’ to the Writ Petition, was appointed as TCM in 1977; yet he could not qualify in the prescribed competitive tests and that being so, he was promoted as TCT and SAE on the dates subsequent to the dates of promotion of the petitioners as TCTs and SAEs and given this scenario, Md. Abdul Awal as a Non-Diploma SAE is junior to all the petitioners and this position can not be gainsaid at all.

13.         Mr. Mohammad Ibrahim Khalil next submits that it is admitted that all the petitioners and others including Md. Abdul Awal were the employees of the BTTB and subsequently the BTTB was dissolved and the functions of the dissolved BTTB were taken over by the BTCL which is a wholly Government-owned company registered under the Companies Act, 1994 and as the petitioners are the employees of the BTCL, they are entitled to invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution  for enforcement of their fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution, even though assuming for the sake of argument that they are Government servants.

14.         Mr. Mohammad Ibrahim Khalil further submits that the BTCL published the final Gradation List of the Non-Diploma SAEs on 22.04.2010 and the names of the petitioners are at serial nos. 554 to 888 in the said Gradation List and the name of Md. Abdul Awal appears at serial no. 889 therein; but it was detected by the BTCL that Md. Abdul Awal was getting salary in the pay scale of Tk. 12,000-21,600/- in Grade- VIII and all the petitioners, despite being senior to Md. Abdul Awal, were getting salary in the pay scale of Tk. 6,400-14,255/- in Grade- XI of the National Pay Scale of 2009 and this being the state of affairs, the petitioners are entitled to equalize their pay with that of their junior Md. Abdul Awal both in law and equity.

15.         Mr. Mohammad Ibrahim Khalil also submits that the pay discrimination between the junior and senior SAEs occurred when the BTCL issued an office order dated 16.08.2010 giving retrospective effect to the promotion of as many as 48 SAEs including Md. Abdul Awal and upgrading their pay scale in Grade- VIII of the National Pay Scale of 2009 effective from 03.10.2010.

16.         Mr. Mohammad Ibrahim Khalil next submits that in order to remove this pay discrimination and to equalize the pay among the junior and senior SAEs, the BTCL issued an office order dated 05.05.2011 as evidenced by Annexure-‘D’ to the Writ Petition; but the equalization of pay as per the order dated 05.05.2011 could not be implemented by the Accounts Office as the BTCL did not specify any conceptual date of the last promotion of the petitioners and accordingly the Accounts Office sought necessary clarifications and thereafter the BTCL issued another office order of pay equalization dated 24.10.2011 giving retrospective effect to the promotion of the petitioners as SAEs effective from 13.10.2002; but nevertheless, the pay equalization could not be materialized this time also in that the Accounts Office again raised objections and sought clarifications from the BTCL and in this way, the petitioners are being deprived of equalization of their pay with that of their junior Md. Abdul Awal.

17.         Mr. Mohammad Ibrahim Khalil further submits that equal pay for equal work or equal pay for equal class of employees is a right of the senior employees who are getting lower pay than that of their junior Md. Abdul Awal and as such a duty is cast upon the BTCL to ensure equal pay for all Non-Diploma SAEs in the same Gradation List.

18.         Mr. Mohammad Ibrahim Khalil also submits that the pay discrimination between the petitioners and Md. Abdul Awal is a blatant violation of Articles 27, 29 and 31 of the Constitution and that is why, they have resorted to the writ jurisdiction of the High Court Division under Article 102 of the Constitution.

19.         Mr. Mohammad Ibrahim Khalil next submits that the law of Master and Servant will not apply to the employees of a nationalized company which has lost its corporate character and such employees will be treated as employees of the corporation and as such they can invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution. In this regard, he draws our attention to the decision in the case of Mosharraf Hossain Chowdhury Vs. General Manager, Titas Gas Transmission and Distribution Co. Ltd. and another and A. K. M. Ayub Ali Vs. Eastern Refinery Ltd. and others reported in 1981 BLD (AD) 61.

20.         Per contra, Ms. Quamrun Nessa, learned Advocate appearing on behalf of the BTCL (respondent no. 1), submits that it is undisputed that the services of all the SAEs were transferred to the BTCL from the BTTB by operation of law and after their absorption in the BTCL, they would be on the same terms and conditions as were applicable to them prior to the dissolution of the BTTB and considered from that vantage point, the petitioners are all Government servants and as they are Government servants, they can not invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution for equalization of their pay with that of Md. Abdul Awal.

21.         Ms. Quamrun Nessa also submits that the only remedy left to the petitioners is to approach the Administrative Tribunal concerned for equalization of their pay with that of Md. Abdul Awal in the same Gradation List; but as the petitioners did not approach the Administrative Tribunal to that end, the Writ Petition is not maintainable.

22.         Ms. Quamrun Nessa next submits that admittedly all the petitioners were appointed as TCMs in the BTTB between 1979 and 1988 and as such it is crystal clear that some of the petitioners could not complete 10(ten) years of service initially as TCMs and then as TCTs by 12.04.1992 and if their promotion as SAEs is given retrospective effect from that date (12.04.1992),  that will be a blatant contravention of the relevant provisions of the Recruitment Rules of 1984 and viewed from this angle, the promotion of all the petitioners as SAEs can not be given retrospective effect from 12.04.1992 as claimed by them.

23.         Ms. Quamrun Nessa further submits that it has been asserted on behalf of the petitioners that the pay discrimination occurred when the BTCL issued the office order dated 16.08.2010 giving retrospective effect to the promotion of as many as 48 Non-Diploma SAEs including Md. Abdul Awal and upgrading their pay scale in Grade- VIII of the National Pay Scale of 2009 on 03.10.2010; but curiously enough, the petitioners failed to challenge the office order of the BTCL dated 16.08.2010 and in the absence of any challenge thereto by the petitioners, the Writ Petition is not maintainable.

24.         Mr. Mohammad Abdul Haque, learned Advocate appearing on behalf of the added respondent nos. 4-29, submits that the respondent nos. 4-29 are Diploma-holder SAEs and although they are Diploma-holder SAEs, they may be affected by any decision of this Court in this Writ Petition and that is why, they are on record.

25.         We have heard the submissions of the learned Advocate for the petitioners Mr. Mohammad Ibrahim Khalil and the counter-submissions of the learned Advocate for the respondent no. 1 Ms. Quamrun Nessa and the learned Advocate for the respondent nos. 4-29 Mr. Mohammad Abdul Haque and perused the Writ Petition, Supplementary Affidavit, Affidavits-in-Opposition, Supplementary Affidavits-in-Opposition, Affidavit-in-Reply, Supplementary Affidavit-in-Reply and relevant Annexures annexed thereto.

26.         To begin with, it may be pointed out that the Rule issued in this Writ Petition, that is to say, Writ Petition No. 16860 of 2012 was earlier made absolute by a Division Bench of the High Court Division by its judgment and order dated 12.05.2015. As against the judgment and order dated 12.05.2015, the BTCL preferred Civil Petition For Leave To Appeal No. 165 of 2016 which was dismissed by the Appellate Division by its order dated 27.03.2017. Eventually the BTCL filed Civil Review Petition No. 376 of 2017 and the Appellate Division by its order dated 04.12.2017 allowed the aforesaid Civil Review Petition and reversed the judgment and order dated 12.05.2015 passed by the High Court Division in this Writ Petition and the order of the Appellate Division dated 27.03.2017 passed in Civil Petition For Leave To Appeal No. 165 of 2016 and remanded this Writ Petition to this Bench for hearing afresh in the light of the observations made therein.

27.         Anyway, admittedly all the petitioners were initially appointed by the BTTB on different dates between 1979 and 1988 as TCMs. After completion of the required length of service and qualifying in the prescribed competitive tests for promotion as per the Recruitment Rules of 1984, they were first promoted as TCTs in 1997 and thereafter as SAEs on 19.11.2007.

28.         It is further admitted that the BTTB was dissolved and the functions of the dissolved BTTB were taken over by the BTCL which is fully and wholly a Government-owned company registered under the Companies Act, 1994. The services of the petitioners (all employees of the dissolved BTTB) were transferred to the BTCL as per section 5A(3) of the Bangladesh Telegraph and Telephone Board (Amendment) Act, 2009 (Act No. 25 of 2009) which came into effect on 1st June, 2008.

29.         It is also undisputed that initially Md. Abdul Awal, a TCM of the dissolved BTTB, was senior to all the petitioners in that he joined the BTTB in 1977. Undeniably Md. Abdul Awal could not qualify in the prescribed competitive tests on time and by that reason, he was promoted as TCT in 2001 and as SAE on 13.12.2007. In this context, it may be recalled that the petitioners were promoted as TCTs in 1997 and SAEs on 19.11.2007. So it is abundantly clear that although Md. Abdul Awal was appointed as TCM in 1977; yet the fact remains that he was promoted as TCT and SAE after the promotion of the petitioners as TCTs and SAEs. In such a posture of things, Md. Abdul Awal became junior to the petitioners and accordingly, he is at serial no. 889 and the petitioners are at serial nos. 554-888 in the final Gradation List of Non-Diploma SAEs as evidenced by Annexure-‘C’ to the Writ Petition.

30.         There is no gainsaying the fact that Md. Abdul Awal was given the pay scale of Tk. 12,000-21,600/- in Grade- VIII of the National Pay Scale of 2009 by the order of the BTCL which was effective from 03.10.2010. But this benefit was not extended to the petitioners as a result of which the pay discrimination took place between the petitioners and their junior colleague Md. Abdul Awal. In order to redress this anomalous position, the BTCL attempted to equalize the pay of the petitioners with that of Md. Abdul Awal; but its attempts ended in a fiasco because of vagueness and nebulousness in the relevant orders and the objections raised thereto by the Accounts Office concerned. Thereafter the BTCL did not take any tangible step for equalization of the pay of the petitioners with that of their junior Md. Abdul Awal. In such a situation, the petitioners had to file the Writ Petition for equalization of their pay with that of Md. Abdul Awal by conceptually shifting back their date of promotion to that of Md. Abdul Awal with effect from 12.04.1992.

31.         It transpires that all the petitioners did not fulfill the required length of service for promotion as SAEs on 12.04.1992. In that view of the matter, the pay of all the petitioners can not be equalized with that of Md. Abdul Awal by conceptually shifting back their date of promotion to that of Md. Abdul Awal on 12.04.1992. Of course, the date of promotion of the majority petitioners can conceptually be shifted back to 12.04.1992; but in case of others, the date of conceptual shifting back of their promotion must be determined by the BTCL itself. The question of determination of conceptual promotion of the petitioners for the purpose of equalization of their pay with that of their junior Md. Abdul Awal is the function of the BTCL. That is no job of the Writ Court under Article 102 of the Constitution. By no stretch of imagination, this Writ Court can usurp the functions of the BTCL in this respect.

32.         As to the submission of Ms. Quamrun Nessa that the pay discrimination occurred when the BTCL issued the office order dated 16.08.2010 giving retrospective effect to the promotion of as many as 48 SAEs including Md. Abdul Awal and upgrading their pay scale in Grade- VIII of the National Pay Scale of 2009 with effect from 03.10.2010 and since the petitioners did not challenge the legality of this office order dated 16.08.2010, the Writ Petition is not maintainable, we hold that the petitioners are not required to challenge the legality of the office order dated 16.08.2010 for the simple reason that they are not seeking promotion as SAEs; rather they are already SAEs by way of promotion. What we are driving at boils down to this: the petitioners are seeking a direction from the High Court Division for equalization of their pay with that of their junior Md. Abdul Awal.

33.         We further note that after issuance of the Rule, an order of equalization of pay was implemented by the Accounts Office on 31.07.2013 for 35 Non-Diploma SAEs (senior to Md. Abdul Awal) who did not join the instant proceeding. But the case of the petitioners was not considered as the Rule has been pending in this Court for adjudication.

34.         It goes without saying that the petitioners are the employees of the BTCL by operation of law. We have already observed that the BTCL is fully and wholly a Government-owned company. With regard to the issue of maintainability of the Writ Petition, there is a catena of authorities that the Writ Petitions filed by the employees of the wholly Government-owned companies are maintainable. In this connection, a reference may be made to the case of Zahir Akhter (Md) and 44 others Vs. Bangladesh Biman Corporation and another reported in 61 DLR (HCD) 446.

35.         The petitioners being employees of a 100% Government-owned company, namely, BTCL can not be ipso facto dubbed as Government servants. Over and above, it appears that the BTCL is not included in the Schedule of the Administrative Tribunals Act, 1981. However, assuming for the sake of argument that the petitioners are Government servants, in that event too, they are entitled to invoke the writ jurisdiction of the High Court Division under Article 102 of the Constitution for enforcement of their fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution. Against this backdrop, we are led to hold that the Writ Petition is maintainable.

36.         This Writ Petition is in the nature of a Writ of Mandamus. The petitioners have a legal right not to be discriminated against in respect of their scale of pay and the BTCL has a legal duty to ensure the equal pay of the petitioners (seniors) with their junior Md. Abdul Awal, to say the least. As the petitioners and Md. Abdul Awal are similarly situated, they must be treated alike. In a word, they can not be dissimilarly treated at all. The petitioners’ fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution must not be allowed to be trampled. We are oath-bound to protect and enforce the fundamental rights of the citizens of the country.

37.         From the foregoing discussions and in the facts and circumstances of the case, we further hold that the principle of equal pay for equal work is attracted in this case. It does not stand to reason and logic as to why the BTCL repeatedly failed to equalize the pay of the petitioners with that of Md. Abdul Awal. The non-equalization of the pay of the petitioners with that of their junior Md. Abdul Awal, as we see it, is a classic example of unfairness and betrays lack of empathy on the part of the BTCL. How can the senior SAEs, namely, the petitioners work with a sense of devotion and dedication when admittedly they have been getting lower pay than that of their junior colleague Md. Abdul Awal? This phenomenon can not be overlooked and disregarded in any view of the matter.

38.         It is the admitted position that the added respondent nos. 4-29 are Diploma-holder SAEs and the petitioners and those 48 SAEs including Md. Abdul Awal are Non-Diploma SAEs. So it seems that they are necessarily two separate and distinct classes by themselves. Given this panorama, the respondent nos. 4-29 and other Diploma-holder SAEs, if any, have not been rightly included in the final Gradation List of Non-Diploma SAEs as evidenced by Annexure-‘C’ to the Writ Petition. Consequently any decision of this Writ Petition will not in any way affect the interest of the respondent nos. 4-29.

39.         In view of the discussions made above and regard being had to the facts and circumstances of the case, we are inclined to dispose of the Rule.

40.         Accordingly, the Rule is disposed of without any order as to costs. The BTCL (respondent no. 1) is hereby directed to equalize the pay of the petitioners with that of their junior Md. Abdul Awal at serial no. 889 of the Gradation List of Non-Diploma SAEs as evidenced by Annexure-‘C’ to the Writ Petition by conceptually shifting back their date(s) of promotion as SAEs to 12.04.1992 or any other appropriate date(s), if they are not otherwise disqualified by any applicable law, within 60(sixty) days from the date of receipt of a copy of this judgment. This equalization of pay shall be effective from the date of discrimination of pay between the petitioners and Md. Abdul Awal as detected by the BTCL, that is to say, from 03.10.2010.

41.         Let a copy of this judgment be immediately transmitted to the BTCL (respondent no. 1) for information and necessary action.

Ed.



Writ Petition No. 16860 of 2012