Nur Mohammad and others Vs. Government of Bangladesh and others 2017 (2) LNJ 383

Case No: Writ Petition No. 3877 of 2016 With Writ Petition No. 2611 of 2017

Judge: Syed Refaat Ahmed. J.

Court: High Court Division,

Advocate: Amirul Islam, Mr. Shamim Khaled Ahmed,

Citation: 2017 (2) LNJ 383

Case Year: 2017

Appellant: Nur Mohammad and others

Respondent: Government of Bangladesh and others

Subject: Writ Jurisdiction

Delivery Date: 2018-01-18

 

HIGH COURT DIVISION

 

(SPECIAL ORIGINAL JURISDICTION)

 

Syed Refaat Ahmed, J.

And

Md. Salim, J.

Judgment on

27.7.2017

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Nur Mohammad and others

(in Writ Petition No. 3877 of 2016)

 . . .Petitioners

Suman Kanti Nath

(in Writ Petition No. 2611 of 2017)

. . .Petitioner

-Versus-

Government of the People’s Republic of Bangladesh, represented by the Secretary of the Ministry of Finance, Bangladesh Secretariat, Ramna, Dhaka  and others

. . .Respondents

 

Constitution of Bangladesh, 1972

 

Article 102

 

Legitimate expectation—Job circulars were issued by the BSC in disruption of an extant process of appointment to existing posts, thereby, initiating a fresh but wholly redundant process of recruitment to those very posts in a manner that was illegal by reason of disregard of the Petitioners’ legitimate expectation to a continued process of assured employment set in motion as early as in 2014.        . . . (19)

 

Constitution of Bangladesh, 1972

 

Article 102

 

Intervention by the Respondent No. 1 on 10.2.2016 compelling the Bank to take a particular and misconceived course of action without any legal mandated authority has resulted in serious adverse consequences and the Ministry’s intervention in the affairs of a public company like the Bank without legal and statutory sanction is indeed to be termed ultra virus to the Constitution. ...(20)

 

Constitution of Bangladesh, 1972

 

Article 102

 

RbZv e¨vsK wjwg‡UW PvKzix wewa gvjv, 2008

 

wewa 5.0.4

 

A perusal of the Rules reveals that there is indeed no authority reserved to the Respondent No. 1 to usurp authority in the manner as reflected in the Memo of 10.2.2016 and dislodge those otherwise vested in the Bank itself. Indeed further, the Bank is found to be constrained under the Rules to confine itself within the administrative régime set out therein. The Bank has evidently strayed in that regard. This Court finds, accordingly, that there was no reason whatever for the Bank to run from pillar to post in the facts for a confirmation of its own authority otherwise clearly spelt out and entrenched in the 2008 Rules.         . . .(20)

 

Constitution of Bangladesh, 1972

 

Article 102

 

The impugned job circulars resting on an administrative “direction” to abruptly halt an established practice and embark on a fresh one reeks of unfairness. In such circumstances, a court as this will indeed interfere to check an abuse of power inherent in such a decision to act.    . . . (22)

 

RV North and East Devon Heath Authority ex. p. Coughlan, [200]3 ALLER 850 ref.

 

Mr. M. Amir-ul Islam, Senior Advocate with

 

Mr. Sheikh Rafiqul Islam, Advocate

 

. . . For the Petitioners

 

(In Writ Petition No. 3877 of 2016).

 

Mr. Taj Muhammad Shaikh, Adv. and

 

Mr. Muhammad Mijanur Rahman, Advocate

 

… For the Added Petitioners

 

(In Writ Petition No. 3877 of 2016)

 

Mr. M. Najmul Huda, Adv.

 

… For the Petitioner

 

(In Writ Petition No. 2611 of 2017)

 

Mr. Shamim Khaled Ahmed, Advocate

 

… For the Respondent Nos. 1 and 2

 

(In both Writ Petitions)

 

Mr. Mahbubey Alam, Senior Advocate with

 

Mr. Md. Mamunur Rashid, Advocate

 

… For the Respondent Nos. 5 and 8

 

 (In both Writ Petitions)

 

JUDGMENT

 

Syed Refaat Ahmed, J: These are two Applications predicated on similar facts that have given rise to two Rules Nisi requiring consideration of common core issues of law, thereby, justifying both Rules Nisi to be disposed of by this single Judgment.

 

2.              In Writ Petition No. 3877 of 2016 a Rule Nisi was issued calling upon the Respondents to show cause as to why the notices dated 10.3.2016 being No. 16/2016 (Annexure-‘M’ to the Writ Petition) and being No. 17/2016 (Annexure-‘M-1’ to the Writ Petition) for recruitment to the posts of Assistant Executive Officer and Assistant Executive Officer-Teller without prior recruitment of the successfully passed Petitioners of the existing Panels (Waiting Lists) to the above-mentioned posts of Janata Bank Limited should not be declared to be without lawful authority and of no legal effect and why a direction should not be given upon the respondents for appointment of the Petitioners to those above-mentioned posts before any further recruitment is made pursuant to the notices dated 10.3.2016 (Annexures- ‘M’ and ‘M-1’ to the Writ Petition) and/or such other or further Order or Orders passed as to this Court may seem fit and proper.

 

3.              In Writ Petition No. 2611 of 2017 a Rule Nisi was issued calling upon the Respondents to show cause as to why the arbitrary and mala fide action of the Respondent No. 3 (General Manager and Member Secretary, Bankers Selection Committee) in issuing the impugned job circulars (wb‡qvM weÁwß) dated 10.3.2016 being Circular Nos. 16/2016 and 17/2016 (Annexures- ‘I’ and ‘I(1)’) for recruitment in the posts of Assistant Executive Officer and Assistant Executive Officer-Teller without recruiting the successfully passed and eligible candidates, including the Petitioner, form the present Panel/Waiting List for recruitment in the above mentioned posts of Janata Bank Limited shall not be declared to have been made without lawful authority and are of no legal effect and why a direction shall not be given to the Respondents to appoint the Petitioner in the post of Assistant Executive Officer before making any further recruitment from any other sources and/or such other or further Order or Orders passed as to this Court may seem fit and proper.

 

4.              The facts common to both the Writ Petitions are that on 19.8.2014, Janata Bank Ltd. (“Bank”) published a recruitment circular dated 14.8.2014 in the Daily Ittefaq seeking applications from eligible candidates for preparing a panel of qualified candidates for the posts of ‘Assistant Executive Officer’ (AEO) and ‘Assistant Executive Officer-Teller’ (AEO-Teller) that would enable the Bank to directly recruit and appoint in the said posts as and when vacancies arose. The last date of submitting applications was 14.9.2014.

 

5.              Facts common to both the Writ Petitions are indicative of the Petitioners having applied for the above mentioned posts in due manner and after scrutiny being given admits cards to sit for the written exams. The written exams being held, the results published and the Viva Voce held duly thereafter, the final results of the candidates who appeared in the Viva were published on 8.6.2015 for AEO candidates and on 27.8.2015 for AEO-Teller candidates, whereby, a total number of 772 candidates for the post of AEO (including the Petitioners) passed the examination and initially among them 189 candidates were selected for direct recruitment in the position of AEO and other 583 candidates were kept in the Panel for future recruitment. For the Post of AEO-Teller, more than 1,883 candidates were declared successful in the Viva Voce among them initially 497 candidates were selected for direct recruitment and more or less 1,386 candidates were kept in the Panel for future recruitment. Thereafter, as the records indicate, periodic appointments were made with some regularity from among the Panel candidates against vacancies among both in the posts of AEO ad AEO-Teller.

 

6.              The point of deviation, the Petitioners contend, from this established practice and process of appointment from among pre-existing Panel candidates is to be traced to the formation of a new body named the ‘Bankers Selection Committee’ (BSC) by the Ministry of Finance (Bank and Financial Institution Department) on 21.9.2015 for recruitment of 1st and 2nd Class Officials in the State-owned banks and other financial institutions replacing the old ‘Bankers Recruitment Council’ (BRC). The Circular notably states that if any bank or financial institution has unresolved issues of recruitment on the date of issuance of the Circular, the said institution shall have to inform the BSC of the same in order for recommendations to be made for the resolution of such issues.

 

7.              It is against this general backdrop that the Respondent No. 3, General Manager and Member Secretary, BSC is shown to have published the impugned circulars being Circular Nos. 16/2016 and 17/2016 in various dailies on 24.3.2016 and 25.3.2016 for recruitment in the posts of AEO and AEO-Teller without, however, appointing the successfully passed and eligible Petitioners waiting in queue in the existing Panels prepared in January/February, 2015.

 

8.              In Writ Petition No. 3877 of 2016, the 260 initial and added Petitioners are represented by two sets of legal Counsel of whom learned Senior Advocate Mr. M. Amir-ul Islam acts as the lead Counsel. Furthermore, the learned Advocate for the Petitioner in Writ Petition No. 2611 of 2017 has at the outset notified this Court of adopting Mr. Islam’s submissions. Both Writ Petitions are noted to bear references in common to all the Respondents.

 

9.              The Petitioners’ case, Mr. Amir-ul Islam submits, is of a betrayal of the new generation by the State evident in a disregard of the basic tenet of the Constitution to foster equality and social justice. Referring to the recruitment circular dated 14.8.2014, Mr. Islam submits that outwardly it appears an attractive, encouraging and stimulating advertisement to which the Petitioners responded. Sadly, however, the outcome of the process generated by the recruitment circular has had the effect, he argues, in the long run of frustrating the aspirations of ®jd¡h£ (meritorious) LjÑW (hardworking) EcÉj£ (enterprising) and BNËq£ (aspirant) Bangladeshis.” The 2014 recruitment circular which comes with the promise of creating a Panel, however, is not accompanied with any information on the Panel-validity period or any indication of the authority retained and reserved to extend, modify or terminate the Panel-period. That notwithstanding, Mr. Islam argues, the creation of the Panel itself leads to a legitimate expectation of a certain course of action to follow by way of its continuity at least for a reasonable period in a manner wholly beneficial to the Petitioners.

 

10.          It is noted in the facts that the Panel-validity period is focal to the Petitioners’ case given that the concerned Respondents are found to have actively endorsed it, deliberated upon the same and assigned initial and extended dates so much so that, for example, at a material point in time the Panel of AEO-Tellers and that for AEOs are found to have been valid until 30.6.2016. These Panels are, as evident to this Court, were created to have a ready pool of qualified candidates handy, thereby, deterring the wastage of time and administrative costs otherwise brought on by repeated and successive processes of fresh recruitments and appointments.

 

11.          The facts, however, this Court notes, speak ultimately of an outcome in which the hopes and prospects of the Petitioners have potentially been dashed forever. The Petitioners, therefore, represent a skilled but disgruntled workforce with lost opportunities at gainful employment. They contend that social justice has, therefore, suffered irreparably as reflected in an erosion of the values of equality and equal opportunities. Added to that is the frustration of an expectation of continued adherence to the prevalent practice of appointments from an existing Panel. That system, the Petitioners contend, was dislodged by the formation of the BSC on 21.9.2015 and manifested ultimately in the issuance of the impugned job circular on 10.3.2016.

 

12.          Mr. Mahbubey Alam, appearing for the Bank, in acknowledging a reference in the recruitment circular of 14.8.2014 to the creation of a Panel submits nevertheless that such a reference is an erroneous one given that the concept of a Panel or a reserve pool of potential appointees with no expiration or termination date attached is alien to jurisprudence on service matters. Mr. Alam submits that such a concept is inherently arbitrary as it stifles competition, curtails opportunities and hampers the intake of fresh talent. He deduces from that premise that the “Panel” (or rather a “Waiting List” as he prefers to term it) cannot last forever and the longevity of such a list is specific to and qualified by the period/time for which it was created.

 

13.          A perusal of the Affidavits-in-Opposition of the Respondent No. 2, BSC and the Respondent No. 5 and 8 Bank functionaries reveals that the emergence of the BSC in September 2015 had created some confusion within the Bank itself and that its initial attempts at aligning the appointment process to a BSC-led process as per the BSC’s Terms of Reference (“TOR”) were intended to favour the Petitioners’ interests. It is noted that the Bank’s Human Resources Development Department (the Respondent No. 8) on 26.10.2015 recommended the extension of the AEO and AEO-Teller Panel-validity till 30.6.2016. By that time on 21.9.2015 the Ministry of Finance (acting through its Bank and Financial Institution Department, the Respondent No. 7) had already formed the BSC as successor to the BRC for recruitment of 1st and 2nd Class Officials in the State-owned banks and other financial institutions. The said circular also states that any bank or financial institution would have to refer any unresolved issue (ÔÔwb‡qvM cÖwµqv Amgvß _vwK‡jÕÕ) of recruitment on the date of the issuance of the circular to the BSC for recommendation at resolving any such outstanding issue. That circular makes two essential points about the BSC’s projected activities:

 

(i)     cÖ_g I wØZxq †kªwYi k~Y¨ c`mg~‡n Rbej wb‡qv‡Mi Pvwn`vi †cÖw¶‡Z cÖv_©©x evQvB Ges wb‡qv‡Mi j‡¶¨ mswk­ó e¨vsK/Avw_©K cÖwZôvb KZ„©c¶ eive‡i GKwU Ôc¨v‡bjÕ mycvwik Kwi‡e;

 

(ii)   GB Av‡`k Rvwi nIqvi Zvwi‡L †Kvb e¨vsK/Avw_©K cÖwZôv‡b mswk­ô c`mg~‡n †Kvbiƒc wb‡qvM cÖwµqv Amgvß _vwK‡j D³ e¨vsK/Avw_©K cÖwZôvb Zvnv KwgwU‡K AewnZ Kwi‡e Ges KwgwU G wel‡q h_vh_ mycvwik cÖ`vb Kwi‡e|

 

14.          The Bank submitting that it has no fully independent and exclusive power to recruit for any post without prior consent of the Respondent No. 6, Ministry of Finance (as evident from the Ministry’s circular of 17.12.2009 abolishing the BRC and reposing such authority of recruitment on individual Boards of Directors of banks and financial institutions subject inter alia to the conditionality of prior Ministry approval), it referred the matter of appointment of the Panel candidates to the posts of AEO and AEO-Teller to the Ministry that resulted in the response of  26.11.2015 advising a referral to the BSC for the latter’s recommendation/ opinion and in that context the Ministry disavowing any authority and responsibility to itself issue any approval or certificate in that regard. This led the Bank to apply on 7.12.2015 and again on 14.12.2015 to the Bangladesh Bank Governor and Chair, BSC for facilitating appointments to the vacant posts pursuant to the recruitment circular of 14.8.2014. It is noted that through these requests the Bank sought to secure appointments from existing Panels valid till 30.6.2016. But that whole process was set at naught at a BSC meeting of 11.2.2016 through a short and cryptic decision reading simply:

 

hÉ¡wL¡pÑ ¢p­mLne L¢j¢V p¢Qh¡mu LaѪL pl¡p¢l ¢e­u¡­Nl m­rÉ L¡kÑœ²j NËqZ Ll¡ q­hz

 

That decision stating simply that the BSC would initiate a process of direct recruitment against the 302 vacancies for AEOs and 417 for AEO-Tellers was communicated to the Bank on 17.2.2016. These developments, with some hindsight, emerge in this Court’s view as the immediate context for issuance of the impugned job circulars of March, 2016.

 

15.          Notably, however, the BSC had issued a prior clarification on 3.1.2016 declaring its lack of jurisdiction in offering suggestions to the Bank on the matter of appointments against vacancies. The clarification declares that the BSC is only responsible for recommending a panel of eligible recruits to the concerned banks/ financial institutions and such responsibility is not to be confused with any additional authority to appoint. It has aptly been argued on BSC’s behalf that to insist otherwise that the BSC has such powers of appointment would amount to an arrogation of authority beyond its TOR. It is asserted by the BSC that in the present facts the Panels in question were prepared by the Bank prior to the formation of the BSC, thereby,  negating any authority of the BSC to wield any authority over the appointments of pre-existing Panel candidates. That clarification addressed to the Respondent No. 7 reads thus:

 

evsjv‡`k e¨vsK

 

e¨vsKvm© wm‡jKkb KwgwU mwPevjq

 

(†m›U«vj e¨vsK Ae evsjv‡`k)

 

cÖavb Kvh©vjq

 

gwZwSj, XvKv-1000

 

evsjv‡`k

 

m~Î bst weGmwmGm-101/2016-2                                          ZvwiLt 03/01/2016|

 

mwPe

 

e¨vsK I Avw_©K cÖwZôvb wefvM

 

A_©gš¿Yvjq

 

evsjv‡`k mwPevjq

 

XvKv|

 

`„wó AvKl©Y t Rbve †gvt wiRIqvbyj û`v, Dc-mwPe, A_©gš¿Yvjq|

 

wcÖq g‡nv`q,

 

‡mvbvjx, RbZv I iƒcvjx e¨vsK wjwg‡UW Gi A‡c¶gvb ZvwjKvmg~n n‡Z †jvKej wb‡qvM cÖ`vb cÖm‡½|

 

Dc‡iv³ wel‡q †mvbvjx e¨vsK wjwg‡UW Gi 18.10.2015 Zvwi‡Li, RbZv e¨vsK wjwg‡UW Gi 04.10.2015 I 14.12.2015 Zvwi‡Li Ges iƒcvjx e¨vsK wjwg‡UW Gi 06.10.2015 Zvwi‡Li cÎmg~‡ni (Kwc mshy³) cÖwZ Acbv‡`i m`q `„wó AvKl©Y Kiv hv‡”Q| cθ‡jvi gva¨‡g e¨vsK 3wU e¨vsKvm© wm‡jKkY KwgwU MV‡bi Av‡M wb‡qvM weÁw߇Z Dwj­wLZ k~Y¨c‡` wb‡qvM`v`‡bi j‡¶¨ cÖ¯—yZK…Z Zv‡`i e¨vs‡Ki wewfbœ c¨v‡bj n‡Z cieZ©x mg‡q m„ó k~Y¨ c`mg~n c~i‡Yi Aby‡gv`b cÖ`v‡bi Rb¨ e¨vsKvm© wm‡jKkb KwgwUi wbKU Av‡e`b Rvwb‡q‡Q|

 

e¨vsKvm© wm‡jKkb KwgwUi Kvh©cwiwai wel‡q A_©gš¿Yvj‡qi e¨vsK I Avw_©K cÖwZôvb wefv‡Mi 21.9.2015 Zvwi‡Li cÖÁvcb †gvZv‡eK KwgwU‡K e¨vsK¸‡jvi bZyb wb‡qvM c¨v‡bj cÖYqb Kv‡Ri `vwqZ¡ †`qv n‡q‡Q| †Kvb Ae¯’v‡ZB G KwgwU wb‡qvM`vZvi f~wgKv cvjb Ki‡Z cv‡i bv|  ZvQvov cÖÁvc‡bi 6bs Aby‡”Q`wU BwZc~‡e© gš¿Yvjq KZ©„K QvocÎ cÖ`vbK…Z k~Y¨ c`mg~n c~i‡Yi j‡¶¨ Pjgvb wb‡qvM Kvh©µg msµvš— Kvh©µg msµvš—| †h‡nZy †mvbvjx, RbZv I iƒcvjx e¨vsK wjwg‡UW Gi Av‡e`bmg~n †Kvb Pjgvb/Amgvß Kv‡Ri welq bq Ges e¨vsKmg~‡ni A‡c¶gvb ZvwjKv cÖYxZ n‡q‡Q e¨vsKvm©  wm‡jKkY KwgwU MV‡bi c~‡e©  cÖ¯—yZK…Z c¨v‡bj n‡Z (†h c¨v‡bj ˆZixi †Kvb ch©v‡qB e¨vsKvm© wm‡jKkY KwgwUi †Kvbiƒc m¤ú„³Zv wQj bv); ‡m‡nZy e¨vsK¸‡jvi Av‡e`‡b Dwj­wLZ wb‡qvM msµvš— KvR Amgvß KvR we‡ePbvq mycvwik cÖ`v‡bi my‡hvM AÎ KwgwUi †bB|

 

GgZve¯’vq, †mvbvjx, RbZv I iƒcvjx e¨vsK wjwg‡UW Gi A‡c¶vgvb ZvwjKvmg~n n‡Z †jvKej wb‡qvM cÖ`v‡bi wel‡q G KwgwUi w`K †_‡K †Kvb f~wgKv †bqvi AeKvk j¶Yxq bq|

 

Avcbvi wek¦¯—

 

mshyw³t eY©bv †gvZv‡eK|

 

(jvBjv wejwKm Aviv)

 

gnve¨e¯’vcK

 

I

 

m`m¨-mwPe

 

e¨vsKvm© wm‡jKkb KwgwU

 

‡gvevBjt 01819466514

 

(Emphases added by this Court)

 

16.          Mr. Shamim Khaled Ahmed representing the BSC apprises this Court in affirmation of the above that the BSC has no role to play in this dispute between the Petitioners and the Bank. The BSC, he explains, is a central body created by the Government and operating from 2015 onwards by replacing its predecessor BRC as functioned until 2009. Mr. Ahmed has, nevertheless, submitted on several substantive issues encompassing the notions of legitimate expectation and fair decision-making process raised in these Writ Petitions. Discussing the practice of creating Panels/Waiting Lists within a supply-demand narrative, Mr. Ahmed cautions against equating such practice with that of creating a reserve pool of candidates kept handy for future appointments. The Petitioners, according to him, are deemed to have constructive knowledge of such Panels and Lists either getting scrapped or expiring at regular intervals giving way to fresh panels to be set up in their place. In other words, this Court is asked to appreciate that the Panels/Waiting Lists have no inherent feature of continuity embedded within them securing thereby a certain entrenched and vested right accruing to the Petitioners to assured appointments and employments at an unspecified date in the future. A reality check, Mr. Shamim Khaled Ahmed submits, would instead reveal to any of the Petitioners that their expectations of employment prospects with the Bank are unrealistic and their arguments on legitimate expectation to be so gainfully employed far-fetched. It is here that he argues that the “Panel” is a term of art loosely used and is not to be confused as a legal term from which substantive consequences flow. He submits in conclusion that establishment of a “Panel” does not automatically give rise to a promise or an undertaking of assured employment and does not create or reserve a right with a concomitant obligation on the employing authority to positively hire. Without detracting from the above, however, Mr. Ahmed rightfully acknowledges that any process of intake from a pool of candidates must remain qualified by the Panel- validity period, thereby, in turn acknowledging in this Court’s view the substantive effect of a validity period should there be one found operating in the facts. That is a point that has struck a chord with this Court in ascertaining in turn the reasonableness and legitimacy of the expectation of the Petitioners’ prospective gainful employment with the Bank. 

 

17.          In examining the BSC’s position taken above this Court upon a perusal of the 21.9.2015 Notification of the Respondent No. 1, Ministry of Finance establishing the BSC as a successor entity to BRC notes that its TOR enables the BSC to work as a recruiting agency-in-common cum a supra-authority to ensure the development of a common recruiting policy executed with transparency. The BSC’s TOR significantly further confines its authority only to the recruitment as opposed to the appointment of officials. Accordingly, the BSC initially in the facts, rightfully desisted from assuming any role or authority to express an opinion or making a recommendation on the Bank’s pre-existing Panels at the material date. The BSC is found to generally discharge a pre-appointment role whereby it can entertain requests from banks to prepare Lists/ Panels for appointment purposes. However, the actual appointments are to be made by the banks/ financial institutions themselves. The BSC’s communication to the Respondent No. 1, Ministry of 3.1.2016 expressing reluctance to act in the Bank’s matter further to the Ministry’s earlier direction to the Bank to approach BSC is found by this Court to be a confirmation aptly of such limited role envisaged in the BSC’s TOR. That communication of 3.1.2016, this Court finds, manifests a proper construction of the BSC’s TOR and its refusal to intervene in the facts by reason of assigning it an appointing role in relation to Panels of appointees pre-dating the BSC is, therefore, not to be read as an abdication of duty but aptly rather as deterring or preventing an arrogation and usurpation of authority not vested in it. Indeed, the BSC in its Affidavit-in-Opposition has categorically asserted that its responsibility extends only to recommending a Panel of eligible candidates to the concerned bank/ financial institutions and such responsibility is not to be likened in any manner to that of an appointing authority. The BSC categorically asserts, and aptly so, that it has nothing to do with the Panels for the posts of AEO and AEO-Tellers in the Bank in as much as this is beyond the BSC’s TOR. To that extent is the BSC is found to have been mindful about not exceeding its authority in any way.

 

18.          But it is the development thereafter reflecting a crucial turn of events which merits consideration by this Court. This phase in the facts began with an ostensible “direction” of the Hob’ble Minister, Ministry of Finance reflected in a letter dated 10.2.2016 to stop further appointments from existing Panels/ Waiting List, and for new circular(s) to be published for fresh recruitment. A proper reading of that memo of 10.2.2016, as was communicated to the BSC and others including the Bank, reveal that it records a “j¿¹hÉ” (comment) rather than a ¢e­cÑn(direction) of the Hon’ble Minister. That communication reads thus in its entirety:

 

MYcÖRvZš¿x evsjv‡`k miKvi

 

A_© gš¿Yvjq

 

e¨vsK I Avw_©K cÖwZôvb wefvM

 

‡K›`ªxq e¨vsK AwakvLv

 

www.bfid.gov.bd

 

b¤¦i-53.00.0000.311.11.012.15-90 ZvwiLt 10/02/2016

 

welq t  ‡mvbvjx, RbZv I iƒcvjx e¨vsK KZ„©K 2013-14 mv‡j M„nxZ wb‡qvM cix¶vq DËx©Y© cÖv_©x‡`i ga¨ n‡Z †jvKej wb‡qvM cÖm‡½|      

 

m~Î t e¨vsKvm© wm‡jKkb KwgwU mwPevj‡qi cÎ bs: weGmwmGm-101/2016-2, ZvwiL: 03.01.2016|

 

m~‡Îv³ c‡Îi Ges Zvi msjMœx‡Z weGmwmÕi wbKU †cÖwiZ †mvbvjx e¨vsK wjwg‡UW           Gi 18.10.2015 Zvwi‡Li, RbZv e¨vsK wjwg‡UW Gi 04.10.2015 I 14.12.2015 Zvwi‡Li Ges iƒcvjx e¨vsK wjwg‡UW Gi 06.10.2015 Zvwi‡Li cÎmg~‡ni welqwU Dc¯’vcb Kiv n‡j gvbbxq A_©gš¿x wbæiƒc gš—e¨ K‡ib:

 

ÔÔ‡h me cix¶vq DËxY© cÖv_©x Av‡Qb Zv‡`i KvD‡KB GLY wbhyw³ †`Iqv hv‡e bv, Av‡Mi cix¶vi cÖvq wZb eQi †cwi‡q †M‡Q| `ª“Z MwZ‡Z bZyb cix¶v †bIqv DwPZ| cix¶vi ZvwiL, Zvi djvdj †NvlYvi ZvwiL Ges †mB mn bZyb wbhyw³i ZvwiL m¤¦‡Ü Rvb‡Z PvB| GB ZvwiL †NvlYvi mgq KZ c` c~iY Kiv n‡e †mUvI †NvlYv Kiv m¤¦‡Ü mycvwik PvB|ÕÕ

 

02|    GgZve¯’vq, gvbbxq A_©gš¿xi Dc‡iv³ gš—‡e¨i cwi‡cÖw¶‡Z cieZ©x cÖ‡qvRbxq e¨e¯’v MÖn‡Yi Rb¨ wb‡`©kµ‡g Aby‡iva Kiv n‡jv|

 

(‡gvt wiRIqvbyj û`v)

 

Dc-mwPe

 

‡dvbt 9554940

 

Eschewing any attempt at bringing the ongoing appointment process to an end by intake of pre-existing Panel List candidates like the Petitioners, the Bank’s BOD as a fallout of the above memo adopted an unduly misconceived compliant resolution on 14.2.2016 enabling requests to be addressed on 18.2.2016 to the BSC to commence a recruitment process afresh, thereby, negating completely the existence of the pre-BSC Panels for appointment purposes.

 

19.          It is here that this Court finds that the BSC erroneously strayed from its correctly held position thus far and buckled under pressure from both the Ministry and the Bank to assume authority not reserved to it and issue the impugned job circulars of March, 2016. These developments indicate that both the BSC and the Bank lost sight of the essential and crucial factor in the Petitioners’ case that the Panels in question are indeed not only subject to a validity period but benefited from an extended validity date. It is also found that the impugned job circular was issued within such period of Panel-validity thereby abruptly, prematurely, peremptorily and arbitrarily sounding the death knell of such Panels. It is also this Court’s finding that the said Panels predate the BSC and, accordingly, the appointments to the posts of AEO and AEO-Teller from such Panels remained prospective but in motion over a defined extended period straddling both the dates of creation and functioning thereafter of the BSC. Resultantly, on the date of the BSC’s creation in September, 2015 there is found no incomplete task that the BSC could be called upon to undertake in this regard. It is in this context that this Court finds that the impugned job circulars were issued by the BSC in disruption of an extant process of appointment to existing posts, thereby, initiating a fresh but wholly redundant process of recruitment to those very posts in a manner that was illegal by reason of disregard of the Petitioners’ legitimate expectation to a continued process of assured employment set in motion as early as in 2014. The fact that the BSC was goaded into such action at the Bank’s behest does not in the least, in this Court’s view, detract from such illegality.

 

20.          It is at this juncture that this Court has also had to consider Mr. Amirul Islam’s argument that the Respondent No. 1, Ministry’s letter of 10.2.2016 recording a comment of the Hon’ble Minister but issued in the guise of a mandatory direction is indeed violative of Articles 27 and 29 of the Constitution. Finding merit in Mr. Islam’s submission, it does appear to this Court that such communication was aimed at irreversibly affecting the rights and interests of the Petitioners in complete disregard of the rules of business and of fair play and fair decision-making process, thereby, making it wholly arbitrary and without lawful authority. A comment made by the Minister, and in all probability taken out of its proper executive and administrative context, was couched in the form of a direction for mandatory execution without further ado. Indeed, such ‘‘directive’’ has had the effect to peremptorily decide on the Petitioners’ prospects of employment without prior consultation and without reference to any identifiable law or regulations and prevalent practice as well as the validity period of the Panels as decided upon by the Bank internally. This Court is constrained to find in the circumstances that such intervention by the Respondent No. 1 on 10.2.2016 compelling the Bank to take a particular and misconceived course of action without any legal mandated authority has resulted in serious adverse consequences and the Ministry’s intervention in the affairs of a public company like the Bank without legal and statutory sanction is indeed to be termed ultra virus to the Constitution. It is found in this regard further that the Bank, a public limited company, is otherwise bound by its own internal rules being predominantly the Sea¡ hÉ¡wL ¢m¢j­VX Q¡L¥l£ ¢h¢dj¡m¡- 2008 (“Rules”) which have statutory force and the Petitioners have also invoked Rule 5.0.4 of the 2008 Rules as the basis of their claims-

 

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A perusal of the Rules reveals that there is indeed no authority reserved to the Respondent No. 1 to usurp authority in the manner as reflected in the Memo of 10.2.2016 and dislodge those otherwise vested in the Bank itself. Indeed further, the Bank is found to be constrained under the Rules to confine itself within the administrative régime set out therein. The Bank has evidently strayed in that regard. This Court finds, accordingly, that there was no reason whatever for the Bank to run from pillar to post in the facts for a confirmation of its own authority otherwise clearly spelt out and entrenched in the 2008 Rules. Indeed, it was clearly incumbent upon the Bank’s executive authority to ignite its authority under Rule 5.0.4  and give effect to its internal decision as to the existence of the validity period of the Panels and appoint therefrom once the BSC had clearly communicated on 3.1.2016 its inability to act as per the Bank’s request. This Court recalls here Mr. Shamim Khaled Ahmed’s argument that “the Panel phenomenon” is strictly not contemplated for in the Rules. This Court finds by way enunciation that there is indeed nothing in the Rules that in any way excludes or negates the reality of the existence of such Panels.  

 

21.          It is also to be noted that distinct from the Respondent No. 1 Ministry’s communication of 10.2.2016 signed by the Joint Secretary, the said Ministry had itself aptly opined previously on 26.11.2015 (followed by a clarification of 8.12.2015) that in the present legal scenario it too had inter alia no authority reserved to it to issue any clearance certificate for appointment purposes. Notably, further the latter communication of 8.12.2016 goes on to clarify that such certification would be unnecessary for appointments to posts included in the present organograms of concerned banks and financial institutions. That assertion, as aptly made by the Ministry at the time, ought, in this Court’s view, to have been construed by the Bank as affirming further the Bank’s primary authority to deal with the Panel List Petitioners’ cases as per the Rules, to revisit Rule 5.0.4 and give continued effect to the 26.10.2015 recommendation of the Respondent No. 8, Human Resources Development Department for continued validity of the Panels till the extended date of 30.6.2016. Why the Bank, however, failed to do so under circumstances is not clear to this Court. It is evident, however, that such relinquishment of authority by Bank has had lasting consequences now found to be highly prejudicial to the Petitioners’ interests. Clearly, the Bank abdicated its responsibility as attached to it under the Rules and wrongly and arbitrarily submitted to an equally wrong and misconceived “direction” of the Ministry of Finance of 10.2.2016 establishing the essential and valid context to the filing of these Writ Petitions. This Court in the circumstances cannot rule out the likelihood, as Mr. M. Amirul Islam has stressed upon, that certain Bank functionaries deliberately and for ulterior purpose may have exploited the Ministry’s 12.2.2016 “direction” as a ploy to operate to the Petitioners’ prejudice.

 

22.          In light of the above and by way of a summation this Court’s core findings are enumerated herein below:

 

                    i.            The creation of Panels/ Waiting Lists in the facts validly gave rise at the very least to a tacit promise or undertaking of assured employment, thereby, creating a right with a concomitant obligation on the employing authority to positively hire the Petitioners;

 

                  ii.            repeated extensions of time/ validity periods of Panels at the Bank’s own volition substantiate the Petitioners’ contention that the Bank as late as in December, 2015 was of clear intent to keep alive the possibility of appointments from such Panels;

 

                iii.            the Bank and the Petitioners were caught in a transition period brought on by the BSC’s establishment in September, 2015 and the Bank clearly abdicated its responsibilities and shoved all authority to the BSC and Ministry of Finance even where clearly the BSC and the Ministry were initially of no mind or intent to interfere;

 

                 iv.            the impugned job circulars of March, 2016 are found to be illegal and arbitrary precisely because of being issued during and within the validity period of the Panels/ Waiting List; and

 

                   v.            the legitimacy of the Petitioners’ expectations of assured employment gets an affirmation and credence in the findings above. The doctrine of “legitimate expectation” in this context is to be understood primarily in its substantive dimension operating in the public domain. As Sedley, J observed in R. v. Ministry of Agriculture, Fisheries and Food ex p. Humble (Offshore) Fisheries Ltd. reported in [1995] 2AII ER 714, “…the real question is one of fairness in public administration.” In that regard equal weight in consideration is due not only to the Petitioners’ legitimate expectation that they ought to have been heard before a decision frustrating their interests was taken, but also that from the Petitioners’ perspective, in Sedley J’s words, it would not be “any less unfair to frustrate a legitimate expectation that something will or will not be done by the decision-maker.” As the facts of these cases further establish, the impugned job circulars resting on an administrative “direction” to abruptly halt an established practice and embark on a fresh one reeks of unfairness. In such circumstances, a court as this will indeed interfere to check an abuse of power inherent in such a decision to act. This Court subscribes to the ratio decidendi in this regard in R. v. North and East Devon Health Authority ex p.Coughlan reported in [200] 3AII ER 850 as reads thus:

 

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

 

Applying the ex p. Coughlan test it is accordingly found that a sudden change of policy evident in 2015-16 operated to the prejudice of the Petitioners to the extent of its arbitrary application during the validity period of the Panels/Waiting Lists in question. The core expectation of the Petitioners always was that such policy implementation through the BSC’s full-fledged operation would be held in abeyance until after the expiration in June, 2016 of the Panel-validity period. That expectation, in the facts, was completely frustrated by issuance of the March 2016 impugned job circulars.

 

23.          Upon a consideration of the facts and submissions made by the learned Counsels for all parties concerned and all the supporting filings made this Court resultantly finds adequate grounds to declare in the facts the impugned recruitment notices, both dated 10.3.2016, to be of no legal effect and pursuant to which no legal consequence are found to have followed. By that reason the Rules Nisi in Writ Petition Nos. 3877 of 2016 and 2611 of 2017 are, hereby, made absolute.

 

24.          This Court is, however, constrained to add a qualification to the findings above as is necessitated on account of exceptional circumstances under which the Petitioners of these two cases have placed their claims. This Court has already found that the recruitment process under review marks a transitional phase brought on by policy change concerning recruitments and appointments by banks. That transitional phase, in the view of this Court, has to be brought to an end given the reality of the establishment and the operation of the BSC as of September, 2015. Nothing in this Judgment shall, therefore, be read or construed as in any way constricting or obstructing the due functioning of the BSC henceforth generally and in particular engaging in recruitment processes as per its Terms of Reference.

 

25.          The Petitioners in these two Writ Petitions, the Bank concerned and indeed all the Respondents are, accordingly, to read the beneficial disposal of these two Rules Nisi as a “one off” privilege to be appointed as AEOs or AEO-Tellers from existing Panels recognized judicially under exceptional circumstances which process must, however, draw to a close within a period of 6 (six) months computed form the date of receipt of certified of a copy of this Judgment and Order or upon filling up of all outstanding vacancies deemed to have arisen under the 2014 recruitment process, whichever is earlier. This shall, thereby, bring the entire process of recruitment initiated in 2014 to a conclusive end on the expiration of such Court assigned period.  The 2014 appointment process shall, thereafter, positively be considered to have come to a close notwithstanding any candidates still remaining unappointed under Panels created consequent to the 2014 recruitment process. Thereafter, a new régime of recruitment under the oversight of the BSC shall be deemed to be applicable to the Bank.

 

26.          There are no Orders as to costs.

 

27.          Communicate this Judgment and Order at once. 

 

Ed.

 



Writ Petition No. 3877 of 2016 With Writ Petition No. 2611 of 2017