Md. Samsuzzoha and others Vs. Bangladesh and others [4 LNJ AD (2015) 44]

Case No: CIVIL PETITION FOR LEAVE TO APPEAL Nos. 1499 OF 2011, 1195 OF 2014, 1500, 1503, 1507-1509 OF 2011

Judge: Muhammad Imman Ali,

Court: Appellate Division ,,

Advocate: Mr. Rokanuddin Mahmud,Mr. Mehedi Hassan,,

Citation: 4 LNJ AD (2015) 44

Case Year: 2015

Appellant: Md. Samsuzzoha and others

Respondent: Government of Bangladesh and others

Subject: Administrative Law,

Delivery Date: 2014-06-19


APPELLATE DIVISION
(CIVIL)
 
Nazmun Ara Sultana, J
Syed Mahmud Hossain, J
Muhammad Imman Ali, J
 
Judgment on
19.06.2014
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Md. Samsuzzoha and others
...Petitioners
(In C.P. No. 1499 of 2011 and 1195 of 2014)
Md. Abdul Hye
...Petitioner
(In C.P. No. 1500 of 2011)
S.M. Serazul Islam
...Petitioner
(In C.P. No. 1503 of 2011)
Mollah Shahiduzzaman
...Petitioner
(In C.P. No. 1507 of 2011)
Md. Abdur Rab
...Petitioner
(In C.P. No. 1508 of 2011)
Md. Helal Uddin
...Petitioner
(in C.P. No. 1509 of 2011)
Versus
Government of Bangladesh and others
...Respondents
(In all the cases)
 
Surplus Public Servants Absorption Ordinance, (XXIV of 1985)
Section 5 and 5(2)
Since the petitioners have admittedly been declared as “surplus” by the respondent government they have legal right to be absorbed, but subject to the criteria as enumerated in section 5 of the Ordinance of 1985. A surplus public servant shall not be absorbed in any post unless he is nominated by the Ministry of Establishment, viz. section 5(2) of the Ordinance, 1985. Thus, the petitioners cannot be absorbed in DPDCL unless they are nominated by the Ministry of Establishment. On the other hand, there is no reason why they may not be absorbed in DPDCL if and when a relevant post becomes vacant and is recommended to be filled by the Ministry of Establishment. ...(11 and 12)

For the Petitioner (In all the cases): Mr. Rokanuddin Mahmud, Senior Advocate, instructed by, Mr. Syed Mahbubar Rahman, Advocate-on-Record
For the Respondent Nos. 3 & 7 (In all the cases): Mr. Mehedi Hassan, Advocate, instructed by Mr. M. Ashraf-uz-Zaman and Mr. Zainal Abedin, Advocates-on-Record.
For the Respondent Nos. 1-6 & 8-175 (In C. P. No. 1499 of 2011): Not represented.
For the Respondent Nos. 1-6 & 8-175 (In all the cases): Not represented.

CIVIL PETITION FOR  LEAVE TO APPEAL  Nos. 1499 OF 2011,  1195 OF 2014,  1500,  1503,  1507-1509 OF 2011
 
 JUDGMENT
Muhammad  Imman  Ali, J:
These seven civil petitions for leave to appeal are directed against the judgment and order dated 22.02.2011 passed by a Division Bench of the High Court Division in Writ Petition Nos. 2320 of 2010,2501 of 2014, 2076 of 2009, 2084 of 2009, 2090 of 2009, 2091 of 2009 and 2092 of 2009 disposing of the matter. Hence, they are dealt with by this single judgment. 
 
The facts relevant for disposal of the instant civil petitions for leave to appeal as stated by the applicant are that they were all employees of Dhaka Electric Supply Authority (DESA) which was created under section 3 of the Dhaka Electric Supply Authority Act, 1990. On 25.10.2005 a government owned public limited company had been incorporated under the name and style, “Dhaka Power Distribution Company Limited” (DPDCL) covering the respective areas of DESA as a part of বিদ্যূৎ খাত সংস্কার কর্মসূচী ''; that all the proceedings and properties of DESA would also be transferred to DPDCL, which would appoint the respective employees as per their own service regulations and that those who would not get employment would continue to serve under the respondent government with their right to pension and other service benefits. Before the actual conversion of DESA into DPDCL the Director (Administration) DESA vide office memo No. ডেসা/পরি (প্রশা/শাঃ-০৪/ডিপিডিসি/বিবিধ/২০০৮/৯২ dated 22.05.2008 offered an option to the officials and staffs of DESA to apply in specific Form, supplied by DPDCL, for absorption and to submit the same on or before 28.05.2008. On 30.06.2008 the respondent No. 3, the Senior Assistant Secretary of the Ministry issued office order with copy to respondent Nos. 5 and 7 stating inter alia, that from 30.06.2008 the function of DESA had been directed to be transferred/converted into DPDCL vide section 21 of the বিদূৎ বিতরন কতৃপক্ষ আইন, ১৯৯০'' subject to the terms and conditions as stated therein.
 
Pursuant to the office order dated 30.06.2008 the Deputy Director (Admn.) DESA vide memo No. ডেসা/পরি (প্রশাঃ/শাঃ-০৪/ ডিপিডিসি/ অব্যাহতি/২০০৮/১২৯) dated 30.06.2008 released the officials and staffs with effect from 30.06.2008 enabling them to join DPDCL. Meanwhile, ঢাকা বিদ্যূৎ বিতরন কর্তৃপক্ষ (সংশোধন) অধ্যাদেশ, ২০০৮'', Ordinance No. 40 of 2008 was promulgated by the Hon’ble President of the country giving it effect from 30.06.2008 making amendment of section 21 by inserting section 21 Ka and thereby provided power to the government to convert and transform DESA into a public limited company, under the Companies Act, 1994. Section 21 KA (3) (Ga) particularly provides that all the officials and employees would be absorbed in accordance with surplus Public Servants Absorption Ordinance, 1985.
 
It has been contended that the present petitioners and all the other officials and employees of DESA had filled in the respective Forms as supplied by DPDCL, for the purpose of absorbing them in accordance with section 21 KA (3) (Ga) of the Ordinance No. 40 of 2008, but instead of complying with the same respondent Nos. 7 and 8 issued appointment letters to others. Being aggrieved by and dissatisfied with this, 6 employees of DESA filed Writ Petition No. 6662 of 2008 wherein a Rule Nisi was issued which was ultimately disposed of by making the Rule absolute vide judgement and order dated 27.08.2009 directing the respondents Nos. 7 and 8 to consider and dispose of the pending representations of the petitioners as per the provisions of the relevant laws. Challenging the same, the respondents had preferred Civil Petition for Leave to Appeal No. 2033 of 2009 which was ultimately dismissed with the following finding:
 
“Having regard to the facts and circum-stances of the case and the provision of section 21 of the Dhaka Electric Authority Act, 1990 as amended by the Dhaka Electric Supply Authority Amendment Ordinance, 2008, as well as the provisions of the Surplus Public Servant Absorption Ordinance, 1985, we do not find any illegality or infirmity in the judgement and order passed by the High Court Division. It appears that respondent Nos. 9-31 ought not to have been appointed prior to disposal of the respondents made by the petitioners (Annexure-K)”.            
 
Accordingly, in writ petition No. 2320 of 2010 the petitioners had challenged the appointment of respondent Nos. 9-13 issued by the DPDCL and the respective petitioners, in other writ petitions, had sought for a direction with a view to absorb them in DPDCL pursuant to section 21 KA (3) (Ga) as amended vide Ordinance No. 40 of 2008 and also in accordance with the Surplus Public Servants Absorption Ordinance, 1985 (Ordinance No. XXIV of 1985).
 
Respondent No. 1 entered appearance by filing affidavit-in-opposition contending, inter alia, that vide memo No. 27.087.004.00.0 Desa writ 010.2010.253 dated 28.09.2010 the Deputy Secretary (Company Affairs) Ministry of Energy and Mineral Resources (Energy Division) transferred the officials and employees of DESA and declared 411 officers and staffs as “Surplus” including the petitioners of the writ petitions pursuant to memo dated 06.04.2010 issued by the Ministry of Establishment; memo dated 30.06.2010 issued by the Ministry of Finance, Finance Division and memo dated 28.09.2010 issued by the Energy Division, giving effect from 01.07.2008 for the purpose of absorption under the Ordinance No. XXIV of 1985. The Ministry of Establishment (Surplus Officers Division) in its meeting dated 18.10.2010 also took decision, to the effect.
 
Respondent Nos. 5 and 7 entered appearance by filing separate sets of affidavits-in-opposition stating, inter alia, that DPDCL would appoint necessary officials and staffs as per the Company Rules and Regulations. The officers and staffs who would not opt for appointment in DPDCL would not be terminated; they would remain under DESA Cell and that their service benefits were to be given in accordance with law as   guaranteed by the respondent government. It was further contended that for smooth running of the company DPDCL is required to employ efficient and energetic people on contractual basis through open competition. Under section 21 KA of the Ordinance No. 40 of 2008 the government vide memo No. BZAKHAD/ BB/ Proshasan-2/Writ-2/2007/398 dated 30.06.2008 directed DESA to transfer all the proceedings and properties of DESA to DPDCL. Pursuant to the said direction DESA was converted to DPDCL at 12:00 O’clock at mid-night on 30.06.2008 vide a Network Transfer Agreement executed between DESA and DPDCL. It was also contended that 464 number of employees including the petitioners who were not recruited or did not join in the DPDCL remained in DESA Cell and ultimately vide memo dated 28.09.2010, 411 officers and employees including the respective petitioners of all the writ petitions were declared a surplus from 01.07.2008 for the purpose of absorption in the respective post at any office, under the Ministry of Power, Energy and Mineral Resources vide letter dated 30.11.2008. it has also been contended that in view of section 21 KA (3) (Ga) of the Act No. 22 of 2009 and section 5 (2) of the Ordinance No. 24 of 1985 the petitioners had no right of automatic absorption in DPDCL and that nowhere within the four corners of the correspondences between the Ministry of Energy and DESA it had been committed that the petitioners were to be absorbed in DPDCL. Those 12 petitioners out of 255 petitioners in Writ Petition No. 2320 of 2010 had earlier expressed their unwillingness to join in DPDCL. Moreover, 17 petitioners out of the 255 petitioners though obtained letters of appointment from DPDCL, but did not join in the said company in accordance with the terms and conditions of their appointment letters dated 17.06.2008 and 05.08.2008 respectively. Suppressing those facts they had filed Writ Petition No. 2320 of 2010 for their absorption in DPDCL.     
 
Although many grounds have been urged in the civil petitions for leave to appeal, Mr. Rokanuddin Mahmud, learned Senior Advocate, was content to argue simply that the direction of the High Court division to take immediate steps towards the absorption of the writ petitioners at the earliest opportunity applies to DPDCL, who are obliged to absorb the petitioners, since DPDCL were respondents in the writ petitions. In support of his contention the learned advocate referred to the decision of the High Court Division in Writ Petition No. 6662 of 2008, wherein it was observed that “the petitioners are entitled to be absorbed into the DPDC Ltd, in accordance with the provi-sions of Surplus Public Servants Absorption Ordinance, 1985 (Ordinance No. 34/85)”. This was upheld by the Appellate Division in Civil Petition for Leave to Appeal No. 2033 of 2009.
 
On the other hand, Mr. Mehedi Hassan, learned advocate appearing on behalf of the respondents No. 7 and 3 in all the civil petitions, submitted that the facts of the case referred by the learned counsel for the petitioners are different from those in the present case. The earlier case concerned writ petitioners whose applications for absorption had not been considered before the posts were filled by others. He submitted that in the facts of the instant case the writ petitioners could only be absorbed in accordance with the provisions of section 5 of the Surplus Public Servants Absorption Ordinance, 1985.
 
We have considered the submissions of the learned advocates appearing on behalf of the parties concerned, perused the impugned judgement as well as other materials on record.
 
It appears from the impugned judgement that the High Court Division observed that the employees who are declared surplus do not ipso facto have the right to be absorbed. They are subject to certain procedures laid down in the relevant law. It was further observed that since the petitioners have admittedly been declared as “surplus” by the respondent government they have legal right to be absorbed, but subject to the criteria as enumerated in section 5 of the Ordinance of 1985.
 
We cannot agree with the submission of the learned advocate for the petitioners that the petitioners have any automatic right to be absorbed by DPDCL. As surplus employees, they are subject to the qualifications as laid down in section 5 of the Ordinance of 1985. One of the requirements of the section is that a surplus public servant shall not be absorbed in any post unless he is nominated by the Ministry of Establishment, viz. section 5 (2) of the Ordinance, 1985. Thus, the petitioners cannot be absorbed in DPDCL unless they are nominated by the Ministry of Established. On the other hand, there is no reason why they may not be absorbed in DPDCL if and when a relevant post becomes vacant and is recommended to be filled by the Ministry of Establishment.
 
The above observations, the civil petitions for leave to appeal are disposed of. There is no order as to costs.
 
Ed.

Reference: 4 LNJ AD (2015) 44