Mosammat Salina Begum and others Vs. Bangladesh & others [4 LNJ (2015) 224]

Case No: Writ Petition No. 1385 of 2009

Judge: Md. Badruzzaman,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. Abdul Quayum,Mr. S.M. Atikur Rahaman,Mr. Motahar Hossain,Mr. Samarendra Nath Biswas,Mrs. Purabi Rani Sharma,,

Citation: 4 LNJ (2015) 224

Case Year: 2015

Appellant: Mosammat Salina Begum and others

Respondent: Bangladesh & others

Subject: Writ Jurisdiction,Administrative Tribunal,

Delivery Date: 2014-04-10


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
M. Moazzam Husain, J,
And
Md. Badruzzaman, J.
 
Judgment on
10.04.2014
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Mosammad Salina Begum
. . . Petitioner
 (In Writ Petition No. 1385 of 2009)

Md. Fariduzzaman and others
. . . Petitioner
 (In Writ Petition No. 8706 of 2009)

Md. Farid Mia . . . Petitioner
 (In Writ Petition No. 8707 of 2009)

Md. Humayun Kabir . . . Petitioner
 (In Writ Petition No. 7272 of 2009)

Mohammad Asgar Ali . . . Petitioner
 (In Writ Petition No. 4544 of 2010)

-Versus-

Government of Bangladesh and others  . . .Respondents
 

Constitution of Bangladesh, 1972
Articles 102 and 117
Service Matter-Jurisdiction of the High Court Division and Administrative Tribunal
It appears that our apex Court consistently expressed its disapproval in invoking writ jurisdiction in respect of terms and conditions of persons in the service of the Republic unless vires of law on the ground of its constitutionality is challenged. The apex Court by reference to Art. 117 of the Constitution made it amply clear that where Administrative Tribunal is established under this Article no Court shall entertain any proceeding or make any order in respect of terms and conditions of persons in the service of the Republic in that the Administrative Tribunal  is conferred with jurisdiction to look into the matter. The Appellate Division has gone as far as to say that even if  within  its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice and for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising out of sub-clause (a) of Art. 117 (1) of the Constitution. . . . (32)

Constitution of Bangladesh, 1972
Article 102
In these cases the writ petitioners did not challenge the vires of any law on the ground of its constitutionality but only canvassed before us one issue that they have been subjected to discrimination in that the respondents did not grant them higher scale of pay, other facilities and gazetted status as have been granted to their counter-parts posted in the Secretariat vide Circulars dated 13.9.1995, 28.4.1997 and 1.6.1999 and thus their fundamental rights have been infringed. The grievance of the petitioners clearly relates to their terms and conditions of service and accordingly their redress, if any, is well within the jurisdiction of the Administrative Tribunal established under Art. 117(1) of the Constitution.       . . . (36)

Mujibur Rahman Vs. Bangladesh, 44 DLR (AD) 111; Bangladesh Vs. Shafiuddin Ahmed, 46 DLR (AD) 19; Government Vs. Azizur Rahman, 50 DLR (AD) 27; Bangladesh Vs. Mohammad Faruque, 51 DLR (AD) 112; Delwar Hossain Mia Vs. Bangladesh, 52 DLR (AD) 120; Government of Bangladesh Vs. Md. Abdul Halim Mia and others, 9 MLR (AD) 105; Molla Md. Anwarul Huq and ors Vs. Government of Bangladesh, 8 ADC (2011) 782;  Khalilur Rahman Vs. Md. Kamrul Hasan, 11 MLR (AD) 5; Bngladesh and ors Vs. Mosharraf Hossain, 32 BLD (AD) 67; Mujibur Rahman Vs. Bangladesh, 44 DLR (AD) 111; Sampath Kumar Vs. Union of India, AIR 1937 SC 386; JB Chopra Vs. Union of India AIR 1987 SC 357; Mujibur Rahman Vs. Bangladesh, 44 DLR AD 111; Delwar Hossain Vs. Bangladesh, 52 DLR (AD) 120; Md. Abdul Mannan and others Vs. Hasan Mahmud Khandaker, 16 BLD (AD) 147 = 1 BLC (AD) 44; Government of Bangladesh and others Vs. Md. Abdul Halim Miah and others, 9 MLR (AD) 105; Khalilur Rahman Vs. Md. Kamrul Hasan, 18 BLT (AD) 486 = 11 MLR (AD) 5; Molla Md. Anwarul Huq and others Vs. Government of Bangladesh, VIII ADC (2011) 782; Government of Bangladesh and others Vs. Md. Mosharraf Hossain, 32 BLD (AD) 67; Bangladesh Vs. Azizur Rahman, 46 DLR (AD) 19 and Government of Bangladesh and others Vs. Md. Shamsul Huq, 59 DLR (AD) 54 ref.

Mr. Abdul Quayum with
Mr. S.M. Atikur Rahaman, Advocate.
. . . For the Petitioners (In all the writ petitions)

Mr. Mahbubey Alam, Attorney General with
Mr. Motahar Hossain, D.A.G
Mr. Samarendra Nath Biswas, A.A.G and
Mrs. Purabi Rani Sharma, A.A.G.
. . . For the respondents (In all the writ petitions)
 
Writ Petition No. 1385 of 2009 with Writ Petition No. 8706 of 2009 with Writ Petition No. 8707 of 2009 with Writ Petition No. 7272 of 2009 with Writ Petition No. 4544 of 2010.
 
JUDGMENT
Md. Badruzzaman, J.

The five writ petitions heard together. Since all the writ petitions involve similar facts and identical question of law, they are taken together for disposal by this single judgment.

In writ petition No. 1385 of 2009 rule nisi was issued calling upon the respondents to show cause as to why the post of the petitioner and Upper Division Assistants of Bangladesh Post Office should not be treated/determined as the post of Second Class Gazetted Officer with the pay scale of Tk. 5,100/- - 10,360/- of the National Pay Scale, 2005 with the designation of Administrative Officer.

In both writ petitions No. 8706 of 2009 and 8707 of 2009 rules nisi were issued calling upon the respondents to show cause as to why direction should not be given to grant same pay scale and gazetted status and to extend the facilities in respect of pay scale and status as granted to the Upper Division Assistants to the Secretariat of Bangladesh [vide Circulars dated 13.9.1995 and 28.4.1997 of Ministry of Establishment and Circular dated 1.6.1999 of Ministry of Finance as contained in Annexure-B, B(1) and B(2)] to the petitioner   and other Head Assistants of the Directorate of Secondary and Higher Secondary Education.

In writ petition No. 7272 of 2009 rule nisi was issued calling upon the respondents to show cause as to why they should not be directed to grant same pay scale, 2nd Class Gazetted status and to extend the facilities as granted to the Upper Division Assistants of the Secretariat of Bangladesh [vide Circulars dated 13.9.1995 and 28.4.1997 of Ministry of Establishment and Circular dated 1.6.1999 of Ministry of Finance as contained in Annexure- B, B(1) and B(2)] to the petitioner and other Head Assistants of Public Health Engineering.

In writ petition No. 4544 of 2010 rule nisi was issued calling upon the respondents to show cause as to why they should not be directed to extend the facilities in respect of pay scale and status as granted to Upper Division Assistant of Bangladesh Secretariat [vide office order dated 10.8.1981 of Ministry of Finance and  Circulars dated 13.9.1995 and 28.4.1997 of Ministry of Establishment and Circular dated 1.6.1999 of Ministry of Finance as contained in Annexure- C, D,  D(1) and D(2)] to the petitioner and other Upper Division Assistants and Upper Division Assistant-Cum-Accountants under the Directorate of Primary Education.

These rules were earlier heard by another Division Bench of this Court analogously and by judgment and order dated 10.1.2011 those were made absolute. Being aggrieved by the said judgment and order the respondent Government filed Civil Petition for leave to Appeal being Nos. 320 of 2012, 1939 and 1932-33 of  2011 and 837 of 2012 before the Appellate Division of the Supreme Court of Bangladesh. The Appellate Division, after hearing the Leave Petitions analogously, by an order dated  10.1.2013 set aside the judgment and order passed by the High Court Division and sent back these writ petitions on remand before this Bench to dispose of the matter afresh on merit.

Facts, relevant for the purpose of the disposal of the rules, in short, are as follows :
The petitioner in writ petition No. 1385 of 2009 was appointed as Upper Division Clerk in the Office of the Post Master General, Eastern Circle (now Central Circle), Dhaka by appointment letter dated 10.11.1979  (Annexure-A) and she joined the service in time. Her service has been confirmed and made permanent by order dated 07.01.1987 (Annexure-B) with effect from 06.10.1985. In the meantime, by a circular dated 23.05.1984 (Annexure-C) the post of Upper Division Clerk has been re-designated as Upper Division Assistant.

In writ petition No. 8706 of 2009 the petitioner obtained B.A. degree and appointed as Typist by  office order dated 4.4.1981 in the Directorate of Secondary and Higher Education and his service was confirmed by office order dated 30.7.1983. Eventually he was promoted to the post of Upper Division Assistant on 10.4.2006.

In writ petition No. 8707 of 2009 the petitioner after obtaining B.A. degree was appointed as Lower Division Assistant by office order dated 6.11.1974. He joined the service on 14.11.1974 in the office of District Inspector of Schools, Dhaka. On transfer he joined in the Directorate of Secondary and Higher Secondary Education on 13.5.1976. Then he was promoted to the post of Upper Division Assistant on 27.6.2000 and lastly to the post of Head Assistant on 25.03.2008.

In writ petition No. 7272 of 2009 the petitioner was appointed as Clerk-cum-Typist by appointment letter dated 25.8.1977 (Annexure-A) in the office of Superintending Engineer, Public Health Engineering, Chittagong Circle. He was promoted to the post of Upper Division Assistant on 30.11.2002 and then to the post of Head Assistant on 15.02.2009.

In writ petition No. 4544 of 2010 the petitioner was appointed as Upper Division Assistant-cum-Accountant under the Directorate of Primary Education by appointment letter dated 25.5.1983 (Annexure-A) and he joined in the service on 01.06.1983. Then by order dated 13.11.1983 his service was made permanent with effect from 01.06.1983.

All the petitioners are serving in different positions in different department/ministries of the government. The petitioners and other Head Assistants and Upper Division Assistants of the Directorate of Secondary and Higher Secondary Education, Directorate of Primary Education, Bangladesh Post Office and Public Health Engineering and similar staffs working in Bangladesh Secretariat and in the High Court Division had been discharging the same functions and accordingly had been enjoying the same status and privileges. But the Government by notification dated 13.9.1995 changed the designation of Upper Division Assistant of Bangladesh Secretariat to Administrative Officer. Then the Government by another notification dated 28.4.1997 upgraded the post of Administrative Officer as Class II Gazetted post and their pay scale was enhanced to Tk. 1725/- - 3725/-. In the notification it was stated that the scope of work and responsibility of the holders of the post would remain same as was before. Lastly, by notification dated 01.06.1999 the pay scale of Class-II Gazetted Officers was further enhanced to Tk. 3400/- - 6625/- while the status and privileges of the petitioners and other Head Assistants and Upper Division Assistants of the Directorate of Secondary and Higher Education, Directorate of Primary Education, Bangladesh Post Office and Public Health Engineering remained unchanged, although they have also been serving under the same government. In the present premises the petitioners served notices demanding justice upon the respondents through their engaged Advocates to upgrade their gazetted status and pay scale as have been given to the Upper Division Assistants of Bangladesh Secretariat but the respondents did not take any action in response thereto.

Having no other equally efficacious alternative remedy for their redress, the petitioners filed their respective writ petitions for invoking our jurisdiction under Article 102 of the Constitution and obtained the rules nisi as aforesaid.

The respondent-government contested the rules by filing affidavit-in-opposition denying the claim of the petitioners stating, inter alia, that the writ petitions are not maintainable inasmuch as  the petitioners being government servants, the only forum available to them is the Administrative Tribunal constituted under Article 117 of the Constitution; persons working in different organisations of the Republic may have the same designation but their promotion, salary, scale of pay etc. may not necessarily have to be the same and those are guided by their recruitment rules and the service condition of the employees working in the Secretariat are not applicable to the petitioners and that the post of personal officer is the feeder post of Assistant Secretary which is applicable only to employees working in the Secretariat and thus the same benefits cannot be extended to the petitioners.
Mr. Abdul Quayum, learned Advocate appearing on behalf of the petitioners in all the writ petitions submits that though the respondents granted higher scale of pay, other facilities and Gazetted status to the employees of equivalent ranks posted in Bangladesh Secretariat, but they are not granting the same to the petitioners which is discriminatory, arbitrary and infringement of the petitioners’ fundamental rights guaranteed under Articles 27, 29 and 31 of the Constitution. He further submits that several writ petitions including writ petition No. 7478 of 2003 and writ petition No. 2256 of 2002 involving identical questions of facts and law have already been settled by making the rules absolute and the judgment and order passed in writ petition No. 2256 of 2002 has been affirmed by the Appellate Division in Civil Appeal No. 218 of 2004, reported in 59 DLR(AD)54 and the principle enunciated therein being also applicable to the present writ petitions, the rules may be made absolute with the same direction.

To refute the submissions made by the learned Advocate for the petitioners, Mr. Mahbubey Alam, learned Attorney General seriously raised the question of maintainability of the writ petitions.  He contended that all the petitioners are admittedly public servants. The issue raised essentially is one of  terms and conditions of  service, therefore, their writ petitions are plainly barred under Art. 117 of the Constitution. He further submits that the petitioners as government servants serving in different departments under different ministries of the Government and their recruitment rules and service conditions are also different. Settled principle is that, he stressed, there is no flat application of the equality clause to every class of servants serving under a Government. Equality rule is only applicable among the equals. This does not mean that the petitioners are remediless. They can well seek their remedy, if available, before the Administrative Tribunal.

Mr. Motahar Hossain, learned Deputy Attorney General at the time of hearing of the rules also made submissions reiterating the same contention as have been made by learned Attorney General. He, in addition,   cited series  of decisions of our apex Court, namely,  Mujibur Rahman Vs. Bangladesh reported in 44 DLR (AD) 111; Bangladesh Vs. Shafiuddin Ahmed reported in 46 DLR (AD) 19; Government Vs. Azizur Rahman reported in  50 DLR (AD) 27; Bangladesh Vs. Mohammad Faruque reported in  51 DLR (AD) 112; Delwar Hossain Mia Vs. Bangladesh reported in  52 DLR (AD) 120; Government of Bangladesh Vs. Md. Abdul Halim Mia and ors reported in  9 MLR (AD) 105; Molla Md. Anwarul Huq and ors Vs. Government of Bangladesh reported in 8 ADC (2011) 782;  Khalilur Rahman Vs. Md. Kamrul Hasan reported in 11 MLR (AD) 5 and  Bngladesh and ors Vs. Mosharraf Hossain reported  in  32 BLD (AD) 67.

We have considered the submissions of the learned Counsels for the contending parties, perused the writ petitions, affidavits-in-opposition and the Annexures appended thereto.

In these cases the petitioners have come up before this Division for invoking our jurisdiction under Art. 102 of the Constitution for enforcement of their fundamental rights guaranteed under Articles 27, 29, 31 of the Constitution which, in their words, have been infringed and violated in the way that respondents did not grant higher  scale of pay, other facilities and Gazetted status to them which have already been granted to the employees of equivalent posts in the Bangladesh Secretariat and thus they have been discriminated. On the contrary, the government forcefully raised the question of maintainability of the writ petitions on the ground that the petitioners having been serving in the service of the Republic, their redress, if any, lies before the Administrative Tribunal.  Since the fitness of things requires deciding maintainability first let us examine how far the writ petitions stand maintainability- test.

Art. 117 of the Constitution clearly stipulates that notwithstanding anything hereinbefore contained, the Administrative Tribunal will exercise jurisdiction in respect of matters relating to or arising out of the terms and conditions of persons in the service of the Republic pursuant to which the Administrative Tribunal Act, 1980 was enacted and the Administrative Tribunals were set up to adjudicate the disputes of persons in the Service of the Republic. Art. 117(2) of the Constitution states categorically that ‘where any administrative tribunal is established under this article, no Court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal’.

In the case of Mujibur Rahman vs. Bangladesh reported in 44 DLR (AD) 111, the constitutionality of Section 3(3) of the Administrative Tribunal Act, 1980 together with the judgment of the Administrative Tribunal was challenged. In that case redress of the persons in the service of the Republic in respect of their infringement of fundamental rights has been settled by delivering a comprehensive judgment which is the leading judgment in the field. In Para 48 of this reported case, the apex Court, in outlining the jurisdiction of the Administrative Tribunal as well as High Court Division, observed that “within  its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice and for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising out of sub-clause (a), but such tribunals cannot, like the Indian Administrative Tribunals in exercise of a more comprehensive jurisdiction under Article 323A (see SP Sampath Kumar Vs. Union of India, AIR 1937 SC 386 (Para 16) and JB Chopra vs Union of India AIR 1987 SC 357 ( para 2), strike down any law or rule on the ground of its constitutionality. A person in the service of the Republic who intends to invoke the fundamental right for challenging the vires of a law will seek his remedy under Article 102(1), but in all other cases he will be required to seek remedy under Article 117(2)”.

The above principle settled in Mujibur Rahman’s case adopted by our apex Court in many subsequent judgments and the said ratio is still governing the field.

 In the case of Bangladesh vs. Shafiuddin Ahmed reported in 50 DLR (AD) 27, the vires of some Rules, Regulations and various Notifications were challenged as unconstitu-tional. Concurring with the principles settled in Majibur Rahman’s case Appellate Division held the writ petition to be maintainable. In para 80 of this judgment  the Appellate Division held:
“In making his submission that while deciding the case of Mujibur Rahman vs. Bangladesh, 44 DLR AD 111, this Division did not take into consideration Article 44 of the Constitution. Mr. Amirul Islam did not notice that Article 44(1) of the Constitution was in all fairness brought to the notice of this Court by the government-respondents themselves in that case (vide paragraph 47 of the Report) and the jurisdiction of an Administrative Tribunal to strike down an order for infringement of fundamental rights or any other law (but not the jurisdiction to strike down any law or rule on the ground of its constitutionality) was conceded (vide paragraph 48 of the Report). The right to move the High Court Division under Article 102(1) for enforcement of the fundamental rights is a fundamental right itself and is guaranteed by Article 44(1) and that has been recognized by the separate concurring judgment in paragraph 77 of the Report. But the right of judicial review under Article 102(2) is neither a fundamental right nor a guaranteed one. This power was never conferred upon the Tribunals under Article 117 of the Constitution (Paragraph 77of the Report).”

 
Appellate Division in paragraph 81 of Shafiuddin Ahmed’s case held that ‘the supplemental, as opposed to substitutional, role of the Tribunals constituted under Article 117 of the Constitution was already conceded and permitted to the Tribunals in Mujibur Rahman case and no power of judicial review under Article 102(2) was conceded to the Tribunals in that case. The writ petitioners’ relief could not have been obtained by a supplemental role performed by the Tribunals. They have rightly invoked the jurisdiction of the High Court Division under Article 102(1) of the Constitution. The writ petitions were fully maintainable’.    

Question of maintainability of the writ petition was again raised in the case of Delwar Hossain Vs. Bangladesh reported in 52 DLR (AD) 120. The writ petitioners of the case, who were appointed in the BCS (Police) cadre, challenged Notification dated 03.02.1998 by which government regularized the respondents No. 4-63 of the writ petition in the post of ASP with retrospective effect from 20.03.1991. They alleged that the impugned order was contrary to the provisions of the BCS (Police) Composition and Cadre Rules 1980, the BCS Seniority Rules, 1981 and the principle laid down in Md. Abdul Mannan and others vs. Hasan Mahmud Khandaker, reported in 16 BLD (AD) 147 = 1 BLC (AD) 44. They also alleged that the impugned order was violative of the fundamental right guaranteed to the writ petitioners under Articles 27, 29 and 31 of the Constitution. High Court Division discharged the rule holding that the writ petition was not maintainable as barred under Article 117(2) of the Constitution. Concurring with the ratio decidendi of Mujibur Rahman’s case the Appellate Division affirmed the judgment of High Court Division and held as follows: 
“Inviting our attention to Article 44 (1) of the Constitution that guarantees the right to move the High Court Division in accordance with clause (1) of Article 102 for the enforcement of the fundamental rights Mr. Abdur Rab Chaudhury, learned Counsel for the petitioner, submits that the High Court Division was wrong in its view that the writ petition was not maintainable.
The question is no longer res integra. It has been answered by this Court in Mujibur Rahman vs Bangladesh, 44 DLR (AD) 111 in the following terms: ‘within its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice as well as for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising of sub-clause (a), but such tribunals cannot, like the Indian Administrative Tribunals in exercise of a more comprehensive jurisdiction under Article 323A (see SP Sampath Kumar vs Union of India, AIR 1987 (SC) 385 (Para 16) and JB Chopra vs Union of India, AIR 1987 (SC) 357 (para 2), strike down any law or rule on the ground of its constitutionality. A person in the service of the Republic who intends to invoke fundamental right for challenging the vires of a law will seek his remedy under Article 102 (1), but in all other cases he will be required to seek remedy under Article 117 (2)’. We find no reason to revise our earlier view. The gravamen of the writ petitioners’ grievance is that by the impugned order of promotion their seniority has been affected. Seniority and promotion of civil servants being terms and conditions of service the Administrative Tribunal is possessed of the exclusive jurisdiction to hear the dispute in such matters. The case is thus fully covered by our decision in the cited case. No substantial question of law has been made out for grant of leave.”
 
In the case of Government of Bangladesh & ors vs. Md. Abdul Halim Miah & ors reported in 9 MLR (AD) 105 the writ petitioners, civil servants, without challenging vires of law, had challenged certain decisions taken at the meeting of the Standing Committee and the placement in the gradation list and publication in the official gazette have been challenged by way of an application under Article 102(2) of the Constitution. The impugned decisions alleged to have infringed the petitioners’ fundamental right guaranteed under Articles 27 and 29 of the Constitution. High Court Division made the rules absolute, being found maintainable. Appellate Division expressing the same view arrived at Mujibur Rahman’s case allowed the appeal by setting aside the judgment of the High Court Division. In paragraph 34 of that judgment our apex Court held :

“The right of judicial review under Article 102(2) of the Constitution is neither a fundamental right nor a guaranteed right. Similarly, the judicial review of an administrative action is neither an all weather remedy nor a remedy for all wrongs but is only available only when there is no other equally efficacious remedy. The writ petitioners have challenged the impugned decisions alleged to have been infringed their fundamental right guaranteed under Articles 27 and 29 of the Constitution, but in view of the provisions of Article 117(2) of the Constitution the Parliament has set up the Administrative Tribunal by enacting  Administrative Tribunal Act, 1980 for exercise of the functions enumerated in Article 117(1) i.e by setting up of the Administrative Tribunal to exercise the jurisdiction in respect of matters relating to or arising out of the terms and conditions of persons in the service of the republic etc. Article 117(2) provides that no Court shall entertain any proceeding or make any order in respect of any matter falling within the jurisdiction of such Tribunal. Section 4 of the Administrative Tribunal Act 1980 specifically provides how the jurisdiction under Article 117 (1) is conferred upon any other Court. In  the case of 44 DLR (AD) 111 it has further been cautioned that an aggrieved person may, out of desperation or just for taking a sportive chance in the summary writ jurisdiction, alleged contravention of some fundamental right which may ultimately turn out to be frivolous or vexatious or not even wrongly attracted in the case and asked to be a ground so that great value of the right given under Article 102 (1) is not frittered away or misused on the pretext of alternative remedy……”.

In the case of Khalilur Rahman vs. Md. Kamrul Hasan reported in  18 BLT (AD) 486 = 11 MLR (AD) 5 relying on the ratio decidendi of Mujibur Rahman’s  case, Appellate Division also held:

“As has already been mentioned that in the case of Mujibur Rahman it has clearly been stated in the background of what circumstance in spite of the bar of Article 117(2) of the Constitution a writ petition can be filed under Article 102 of the Constitution and can be entertained by the High Court Division even the contention raised and adjudicated sought relates to term and condition of the service of a person in the service of the Republic. Therein it has been held that except on the limited ground i.e when the vires of the law is challenged or a relief by way of striking down of a particular law on the grounds of its Constitutionality sought, writ petition by the High Court Division can be entertained or in other words a person in the service of the Republic can file a writ petition on limited grounds as regard the matters, even though the same relates to the condition of service. So law is now settled that except on the limited scope a writ petition involving question of determination of the question of the matters relating to term and condition of service of a person in the service of the Republic is not entertainable  by the High Court Division under Article 102 of the Constitution’.
 
In the case of Molla Md. Anwarul Huq and others vs. Government of Bangladesh reported in VIII ADC (2011) 782, the High Court Division held the writ petition to be maintainable as it found that the Guidelines under challenge, having been published in Official Gazette, had the force of law and Appellate Division upheld the judgment of the High Court Division.

In a recent case of Government of Bangladesh and others vs. Md. Mosharraf Hossain. Reported in 32 BLD (AD) 67 the writ petitioner, who was a Bench Reader of the Appellate Division, had challenged the vires of the Ôevsjv‡`k mycÖxg †KvU© (Avcxj wefvM) Gi Kg©KZ©v I Kg©Pvix‡`i wb‡qvM wewagvjv, 2000Ô as being unconstitutional as discriminatory and sought for a direction upon the government to grant him the status of First Class Gazetted Officer with a pay scale of Tk. 9000-405X16-15480 under the National Pay Scale, 2005. The Appellate Division after accepting the principles laid down in Mujibur Rahman’s case, Shafiuddin’s case and Shamsul Haque’s case found the writ petition maintainable as the vires of  constitutionality of Ôwewagvjv 2000Õ was challenged.

In the case of Bangladesh Vs. Azizur Rahman reported in  46 DLR (AD) 19 the writ petition, which was filed by Assistant Engineers of Bangladesh Engineering Services in different cadres, held maintainable by the apex Court as the vires of constitutionality of ‘The Bangladesh Ad-hoc Appointees (Counting and Determination of Seniority) Rules 1990’ was challenged together with the petitioners’ grievance as to their seniority. In the said case, as the vires of law was challenged, the apex Court in answering the question of maintainability held that ‘it is found from the facts of the writ petitions that the question of fundamental right invoked therein has been so mixed up with the facts and statutory rules that the question of fundamental right cannot be extricated for exclusive consideration in a petition for enforcement of fundamental right. Therefore, the High Court Division rightly held the writ petitions to be maintainable under Article 102 (2)’.

It appears that our apex Court consistently expressed its disapproval in invoking writ jurisdiction in respect of terms and conditions of persons in the service of the Republic unless vires of law on the ground of its constitutionality is challenged. The apex Court by reference to Art. 117 of the Constitution made it amply clear that where Administrative Tribunal is established under this Article no Court shall entertain any proceeding or make any order in respect of terms and conditions of persons in the service of the Republic in that the Administrative Tribunal  is conferred with jurisdiction to look into the matter. The Appellate Division has gone as far as to say that even if  within  its jurisdiction the Tribunal can strike down an order for violation of principles of natural justice and for infringement of fundamental rights, guaranteed by the Constitution, or of any other law, in respect of matters relating to or arising out of sub-clause (a) of Art. 117 (1) of the Constitution.( Emphasis added).

In the case of Government of Bangladesh and others Vs. Md. Shamsul Huq reported in  59 DLR (AD) 54, relied upon by the learned Advocate for the petitioners, the writ petition, which was filed by the Personal Officer of the Supreme Court, challenging vires of two Notifications on the ground of their constitutionality, was held to be maintainable on the ground that the impugned Notifications had the force of law saying that ‘the principle as laid down in 50 DLR (AD) 27, in the facts and circumstances, are applicable in the present appeal as the writ petitioners challenged the order as contained in Annexures D(1) and D(2), which were issued under section 5 of the Services (Re-Organisation and Conditions) Act, 1975 and have the effect of law. Accordingly, the writ petition is maintainable’.

It appears that the instant writ petitioners did not challenge vires of any law on the ground of its constitutionality, as such the ratio of the decision reported in 59 DLR (AD) 54 is not applicable in these cases.

In writ petition No. 7478 of 2003 (judgment of which is relied on by the learned Advocate for the petitioners) the writ petitioner, an Upper Division Assistant of High Court Division sought for direction to grant Gazetted status as had been granted to Upper Division Assistants in the Secretariat on the ground of discrimination. In that writ petition though question of maintainability was raised but the learned Assistant Attorney General could not produce any authority of our apex Court on the point of maintainability. The High Court Division also without any reference to the decisions of our apex Court, as discussed above, held that “we have heard the learned Advocate of both the sides and perused the petition. On the question of forum, it is very true that the petitioner is in the service of the Republic of Bangladesh. He is posted in the office of the High Court Division of the Supreme Court. As such, any grievance with regard to the terms and conditions of his service, the Administrative tribunal is the proper forum. But in this case, his fundamental right to be treated equally with other similarly placed employees of the Republic and his entitlement to equal protection of law under Article 27 of the Constitution is involved. ***********The learned Assistant Attorney General could not explain as to why the petitioner and other Upper Division Assistants posted in the Office of the High Court Division were treated differently from their counter-parts posted in the Secretariat on and from 1.7.1977 by the above Notification dated 10.8.1981.This is a glaring instance of discrimination to the prejudice of the petitioner and similarly placed other employees in the country including those in the Office of the High Court Division. This is also a violation of fundamental right of the petitioner and similarly placed others, guaranteed under Article 27 of the Constitution”. This judgment seems to us as a judgment per incuriam and thus not binding upon us in view of the ratio  settled by the apex Court in Mujibur Rahman’s case and subsequent cases. 

In these cases the writ petitioners did not challenge the vires of any law on the ground of its constitutionality but only canvassed before us one issue that they have been subjected to discrimination in that the respondents did not grant them higher scale of pay, other facilities and gazetted status as have been granted to their counter-parts posted in the Secretariat vide Circulars dated 13.9.1995, 28.4.1997 and 1.6.1999 and thus their fundamental rights have been infringed. The grievance of the petitioners clearly relates to their terms and conditions of service and accordingly their redress, if any, is well within the jurisdiction of the Administrative Tribunal established under Art. 117(1) of the Constitution. In view of the principles laid down in the judgment of Mujibur Rahman’s case, subsequent judgments and the judgment relied on by the learned Advocate for the petitioners reported in 59 DLR (AD) 54, as discussed above, the petitioners should have agitated their grievance before the Administrative Tribunal for their redress but they instead, have come before this Division for invoking our power of judicial review under Art. 102 of the Constitution and as such we are led to hold that the writ petitions are not maintainable. For what we have stated above we are not inclined to go into the merit of their cases. Resultantly, these rules are liable to be discharged as not being maintainable.

In the result, the rules are discharged, however, without any order as to costs.

Ed.