Secretary, Ministry of Health and Family Welfare & others Vs. Parvin Sultana, 57 DLR (AD) (2005) 111

Case No: Civil Petition for Leave to Appeal No. 1329 of 1999

Judge: Syed JR Mudassir Husain ,

Court: Appellate Division ,,

Advocate: Mr. Md. Ataur Rahman khan,Fida M. Kamal,,

Citation: 57 DLR (AD) (2005) 111

Case Year: 2005

Appellant: Secretary, Ministry of Health and Family Welfare & others

Respondent: Parvin Sultana

Subject: Constitutional Law,

Delivery Date: 2004-1-10

Supreme Court of Bangladesh
Appellate Division
(Civil)
 
Present:
Md. Ruhul Amin J
Syed JR Mudassir Husain J
MM Ruhul Amin J 
 
Secretary, Ministry of Health and Family Welfare & others
....Petitioners
Vs.
Parvin Sultana
....Respondent 
 
Judgment
January 10, 2004.  
 
The Constitution of Bangladesh, 1972
Article 103 
Order of transfer of a senior staff nurse who is the writ petitioner is contravention of the circulars issued by the Government from time to time framing regulations of transfer of such employees. The High Court Division rightly decided the case in favour of the writ petitioner.   
 
Lawyers Involved: 
Fida M Kamal, Additional Attorney General, instructed by B Hossain, Advocate‑on‑Record‑ For the Petitioners.
Ataur Rahman Khan, Advocate-on‑Record‑ For the Respondent. 
 
Civil Petition for Leave to Appeal No. 1329 of 1999
(From the judgment and order dated 11th August, 1999 passed by the High Court Division in Writ Petition No. 123 of 1999)
 
JUDGMENT
 
Syed JR Mudassir Husain J:
 
1. This Civil Petition for leave to appeal is directed against the judgment and order 11‑8‑1999 passed by the High Court Division in Writ Petition No, 123 of 1999 making the Rule absolute. 
 
2.  The facts leading to this petition are that the respondent Parvin Sultana filed the above writ petition whereupon a Rule was issued calling upon the respondent (leave petitioner) to show cause as to why the impugned order to transfer her dated 18‑11-­1998 issued by the respondent No. 4 (Annexure‑A) should not be declared to have been made without lawful authority and of no legal effect. The petitioner's case is that she is a Senior Staff Nurse of the National Institute of Cardio Vascular Diseases and Hospital and she is also an office bearer and representative of the Nurses Association. The petitioner was transferred from National Institute of Cardio Vascular Disease and Hospital, Dhaka to the Health Complex, Tajumuddin, Bhola in the vacant post of Senior Staff Nurse and she was asked to take release order within two days otherwise she will stand released on the third day as was intimated by the respondent No. 4 in the impugned order dated 18‑11‑1998. On receipt of the said impugned order the petitioner filed an application for cancellation of the said transfer order and she also filed another application on 17‑12‑1998 though the respondent No. 4 verbally assured the writ petitioner that the matter will be looked into but did not make any written order. The petitioner further stated that she has been living in Dhaka with her husband and her family consisting of old ailing mother, who required constant treatment and for all the reasons she prayed for cancellation of the order of transfer but with no effect. The petitioner has further stated that the Ministry of Establishment vide memo dated 10‑2-­1987 in order to avoid transfer of 3rd and 4th class employees provided the principle which was duly approved by the Cabinet Division Meeting dated 23‑2‑1986 and pursuant to the decision of the Cabinet Division Meeting it was informed to all concerned that the job of 3rd and 4th class employees are not usually transferable providing some guidelines which was duly approved by the President and was recommended by Inter ­Ministerial consultation regarding the transfer of 3rd and 4th class employees which was approved by the Cabinet Division on January 19, 1986 and order was issued not to transfer any 3rd and 4th class employees unless they are not listed and that any transfer would be deemed by way of harassment but the petitioner who has not been enlisted in the said list has been transferred which is deemed to be an action against her for her trade union activities and the order of transfer is simply an act of harassment. The petitioner has further stated that as the representative of the Nurses Association she raised some demands before the authority and out of grudge, the authority issued the impugned order which apart from being malafide is also, according to the government circular, deemed to be by way of harassment.  
 
3. That the petitioner by way of supplementary affidavit has stated that the petitioner filed several applications for cancellation of her transfer order on humanitarian ground as well as on medical ground but till date no step has yet been taken and nobody has yet been posted in the petitioners post and place and the petitioner has been drawing her pay from the present place at Dhaka and that as the petitioner being a 3rd class employee and her husband is serving at Dhaka as per government directive also her transfer order is illegal. The learned judges of the High Court Division upon hearing the parties made the Rule absolute.   
 
4. Mr. Fida M Kamal, the learned Additional Attorney General, argued that the order of transfer has been passed in the public interest and, as such, the High Court Division erred in law in making the Rule absolute without considering that the order of transfer has been made with lawful authority and the allegation of malafide having not been proved the High Court Division committed an error of law in passing the impugned order and, as such, the findings and decisions are liable to be set aside. 
 
5. We have heard the learned Additional Attorney‑General and perused the impugned judgment of the High Court Division. It appears that the High Court Division considered the Annexures-­ "C, C 1 & C2" which were issued from time to time by Ministry of Establishment and were duly approved by the Cabinet Division. It was stated that none of the 3rd and 4th class employees except the listed one shall be transferred vide circular dated 18-9‑1986 (Annexure‑C 1). It further appears that the High Court Division considered the conditions appearing in para Ka, Kha, Ga, & Gha and thereof it is found that the order of transfer if any shall be deemed to be for harassment. The learned Judges of the High Court Division also considered the circular (Annexure‑C2) and that in such state of affairs the learned Additional Attorney‑General also found difficult to support the order passed by the writ­-respondent No. 4. Having regard to the facts and circumstances of the case, we are of the view that the learned Judges of the High Court Division rightly decided the case and there is no legal infirmity or illegality in the impugned Judgment of the High Court Division calling for our interference.
 
Accordingly, this petition merits no consideration. Hence, it is dismissed. 
 
Ed.