Secretary, Ministry of Environment & Forest, Bangladesh Vs. Shaha Md. Nurul Islam

Case No: Civil Appeal No. 109 of 1999

Judge: Mahmudul Amin Choudhury ,

Court: Appellate Division ,,

Advocate: Mr. Abdur Razzaque Khan,Sharifuddin Chaklader,,

Citation: 1 ADC (2004) 139

Case Year: 2004

Appellant: Secretary, Ministry of Environment & Forest, Bangladesh

Respondent: Shaha Md. Nurul Islam

Subject: Administrative Law,

Delivery Date: 2002-4-23

Secretary, Ministry of Environment & Forest, Bangladesh

 Vs.

 Shaha Md. Nurul Islam, 2002,

 1 ADC (2004) 139

 

 

Supreme Court
Appellate Division

(Civil)
 
Present:
Mahmudul Amin Choudhury J
Md. Ruhul Amin J
KM Hasan J
 
The Secretary, Ministry of Environment and Forest, Bangladesh Secretariat, Dhaka and another........................Appellants

Vs.

Shaha Md. Nurul Islam..........Respondent
 
Judgment
April 23, 2002.

Constitution of Bangladesh, 1972
Article 102 (1)

We have gone through the writ petition particularly the prayer portion. The respondent prayed for a declaration that the impugned order/super cession dated 18.12.1994 passed by the Ministry of Environment and Forest should be declared to have been passed without lawful authority and also prayed for considering the seniority of the petitioner while promoting officers to the posts of Deputy Conservator of Forests. The prayer portion indicate that the writ petition is in respect of terms and conditions of service. We have considered the submissions of the learned Advocate and also the facts and circumstances of the case and the decisions of this Division and we are of the view that the writ petition as filed is not maintainable.
 
Cases Referred To-
Junnur Rahman vs. Bangladesh Shilpa Rin Sangstha (BSRS) and others, 51 DLR (AD) 166; Delwar Hossain Mia (Md) and another Vs. Bangladesh, represented by the Secretary, Ministry of Home Affairs and others, 52 DLR (AD) 120; Mujibur Rahman (Md) Vs. Government of Bangladesh and others, 44 DLR (AD) 111.
 
Lawyers Involved:
Abdur Razzaque Khan, Additional Attorney General (Faisal Hossain Khan, Assistant Attorney General with him) instructed by B. Hossain, Advocate-on-Record-For Appellants.
Sharifuddin Chaklader, Advocate-on-Record-For Respondent.
 
Civil Appeal No. 109 of 1999.
(From the Judgment and order dated 18.2.1997 passed by the High Court Division in Writ Petition No. 689 of 1995).
 
 
 
Judgment:
                 Mahmudul Amin Choudhury CJ. - This appeal by leave is against judgment and order dated 18.2.1997 passed by a Division Bench of the High Court Division in Writ Petition No. 689 of 1995 making the Rule Absolute.

2. The short fact leading to this petition is that the Writ petitioner respondent moved the High Court Division alleging that he was a Class-1 Gazetted officer under the Ministry of Defence and was appointed as Director, National Cadet Corps in 1980 and thereafter that post was abolished and as a surplus person­nel he was absorbed in the Ministry of Establishment and at their order worked in dif­ferent Ministries as Section Officer. He was permanently absorbed in the Ministry of Agriculture on 27.2.1986. In the meantime the writ petitioner passed different examinations as required under the departmental rules and was then posted at the Environment and Forest Ministry. Thereafter the writ petitioner respon­dent was appointed to act as Sub-Divisional Forest Officer. A gradation list was prepared and his position was numbered as 107 but he claimed that his position would be above 103 officers. Ultimately a list was prepared for pro­moting 12 officers in which the name of the petitioner did not find place. He made several representations but without success and when a notification was issued giving promotion to 12 officers junior to him the respondent moved the High Court division in Writ Petition No.689 of 1995 challenging order dated 18.12.1994.

3. Before the High Court Division the pres­ent appellant entered appearance and filed affidavit-in-opposition and their case is that the appointment of the respondent was irregular and he was illegally absorbed in the year 1986. Their further case is that as his absorption was irregular the writ petitioner ought not to have been kept in  the cadre in the Ministry of Environment and without consulting the Public Service Commission the Writ petitioner was absorbed in the Ministry of Establishment and as such his case should not be considered. It has also been alleged that the writ petitioner was absorbed violating the provision of Surplus Public Servant Absorption Ordinance, 1985. Their objection is that as the writ petitioner has challenged his seniority in the service which is in respect of terms and conditions of his service he ought to have moved the Administrative Tribunal and not the High Court Division in writ jurisdiction.

4. The High Court Division on considera­tion of the materials on record made the Rule Absolute Leave was granted to consider the following:-
                      "Mr. B. Hossain learned Deputy Attorney General appearing for govern­ment of Bangladesh petitioner submits that the writ petitioner respondent being a member in the service of the Republic he should have filed the case before the Administrative Tribunal which was the appropriate forum the writ petition filed by him not being maintainable the judges of the High Court Division erred in law in making the rule absolute when the Administrative Tribunal has the juris­diction to examine the constitutionality of the impugned notification.
                     He next submits that the High Court Division erred in law in making the Rule absolute inasmuch as the writ petition was not maintainable for not imp leading the officers who have been affected by declaring their promotion over him as illegal."

5. Mr. Abdur Razzaque Khan, learned Additional, Attorney General at the very outset submits that as the case of the respondent is on the condition of his service he ought to have moved the administrative Tribunal. He submits that after establishment of the Administrative Tribunal under Article 117 of the constitution the High Court Division lost its jurisdiction over the matters relating to the service conditions of an individual who is in the service of the Republic. It is submitted that when in the present case the writ petitioner respondent has sought a declaration that he is senior to 12 other officers of the department and is entitled to get a promotion the writ petition as filed is not maintainable. The respondent ought to have moved the Tribunal. Mr. Khan after placing the writ petition submitted that the Writ petitioner respondent only challenged a notification issued by the department proposing to promote some 12 officers who are allegedly junior to him. Mr. Khan submits that the finding of the High Court division as regards protection of the petitioner's fundamental right as enshrined in the constitution has no leg to stand upon in view of the arguments made in the writ petition. Relying in the decision in the case of Junnur Rahman vs. Bangladesh shilpa Rin Sangstha (BSRS) and others reported in 51 DLR (AD) 166. Mr. Khan submits that the judgment of the High Court Division cannot be maintained. Mr. Khan also submits that a person in the service of the Republic who intends to invoke funda­mental right for challenging the virus of law may seek his remedy under Article 102 (1) of the Constitution but in all other cases he is required to seek remedy under Article 117 (2) of the Constitution. Mr. Khan submits that in the present writ petition virus of laws has not been challenged by the writ petitioner and as such the writ petition is not maintainable. Mr. Khan in support of his submission placed reliance in the case of Delwar Hossain Mia (Md) and another Vs. Bangladesh, represented by the Secretary, Ministry of Home Affairs and others reported in 52 DLR (AD) 120. Mr. Khan submits that the same view has also been expressed by this Division earlier in the cases of Mujibur Rahman (Md) Vs. Government of Bangladesh and others reported in 44 DLR (AD) 111.
                Mr. Khan submits that the consistent view of this Division in such matters is that a person in the service of the Republic cannot maintain a writ petition when he challenged the terms and conditions of his service and here in the present case the respondent challenged promotion of 12 officers who are allegedly junior to him and prayed for direction to treat him senior to those officers. It is definitely in respect of alleged violation of the terms and conditions of service and such matters are in the domain of Administrative Tribunal. Mr. Khan submits that the High Court Division failed to consider this aspect of the matter and wrongly entertained the writ petition and made the Rule absolute which require interference.

6. In view of the submissions made by the learned Additional Attorney General and in view of the consistent decisions of this Division in the aforesaid cases and in view of the aver­ments made in the writ petition Mr. Sharifuddin Chaklader, Advocate-on-Record appearing on behalf of the respondent found difficulty in sup­porting the judgment of the High Court Division.

7. We have gone through the writ petition particularly the prayer portion. The respondent prayed for a declaration that the impugned order/super cession dated 18.12.1994 passed by the Ministry of Environment and Forest should be declared to have been passed without lawful authority and also prayed for considering the seniority of the petitioner while promoting offi­cers to the posts of Deputy Conservator of Forests. The prayer portion indicate that the writ petition is in respect of terms and condi­tions of service, we have considered the sub­missions of the learned Advocate and also the facts and circumstances of the case and the decisions of this Division and we are of the view that the writ petition as filed is not main­tainable. In such circumstances the High Court Division committed illegality in making the Rule absolute. In view of the consistent deci­sions of this Division such matters we are inclined to allow the appeal. As we have already found that the writ petition as filed is not maintainable we are not inclined to enter into other aspects of the matter.

8. The appeal is accordingly allowed with­out cost. The impugned judgment and order passed by the High Court Division in the afore­said writ petition is hereby set aside and the writ petition is dismissed as not maintainable.

Ed.