Case No: Civil Appeal No. 20 of 2001
Judge: Md. Hamidul Haque,
Court: Appellate Division ,,
Advocate: Mr. Abdul Wadud Bhuiyan,Mr. M. Amir-Ul Islam,Fida M. Kamal,,
Citation: II ADC (2005) 87
Case Year: 2005
Appellant: Secretary, Ministry of Land and others
Respondent: Abu Nur Mohammad Zafar and others
Subject: Constitutional Law,
Delivery Date: 2003-07-21
KM Hasan, CJ.
Mohammad Fazlul Karim, J.
Md. Hamidul Haque, J.
Secretary, Ministry of Land and others
Abu Nur Mohammad Zafar and others
July 21, 2003.
Article 102 (2)(a)(ii)
We have found that the writ petitioner-respondents are not aggrieved persons and at the same time we have found that their rights will not be in any way affected if the vacant posts of kanungos are filled up by recruitment under the existing rules and pay scale. ….. (14)
Fida M. Kamal, Additional Attorney General, instructed by Firoj Shah, Advocate-on-Record - For the Appellants
Abdul Wadud Bhuiyan, Senior Advocate, Instructed by Md. Aftab Hossain, Advocate-on-Record - For Respondent Nos. 1-5
Amir-ul-Islam, Senior Advocate (Mrs. Tania Amir, Advocate with him) instructed by A. K. M. Shahidul Huq, Advocate-on-Record - Intervener
Civil Appeal No. 20 of 2001
(From the Judgment and Order dated 11.12.1999 passed by the High Court Division in Writ Petition No. 3924 of 1998)
Md. Hamidul Haque J.
1. This appeal by leave is against the judgment and order passed by a Division Bench of the High Court Division in Writ Petition No. 3924 of 1998.
2. The present respondents were the writ petitioners and Rule was issued calling upon the writ respondents to show cause as to why the advertisement made in the Dainik Janakanta on 19.2.1997 (Annexure-A to the writ petition) for recruitment of Kanungos and formation of a committee to scrutinize and examine the applications received in response to the advertisement, should not be declared to have been made and constituted without lawful authority and is of no legal effect and further why the respondents should not be directed to do the needful for implementation of the gazette notification dated 10.7.1997 (Annexure-J to the writ Petition).
3. The respondents are all kanungos and their case is that in a meeting of the National Land Requirement Council of the Ministry of Land held on 30.12.1989 it was decided that each and every Upazila shall have Assistant Land Officer from those who were working as Kanungoe and the post of said officer shall be upgraded as second class gazetted post. Subsequently, after some inter-ministerial communications and deliberations final decisions was taken to upgrade the post of kanungo as second class gazetted post and ultimately gazette notification was made on 10.7.1997 upgrading the post of kanungo to the second class gazetted post with the proposed pay scale at Tk. 2300-4480.
4. Further, case of the respondents is that though the post of Kanungo was upgraded to the second class gazetted post, the Ministry of Finance did not give effect to the proposed pay scale. In the meantime, the Ministry of land invited applications for appointing 106 Kanungos instead of implementing the decision of upgrading the post of kanungo to the second class gazetted post in accordance with the gazette notification dated 10.7.1997. Before publishing the advertisement, Public Service Commission was approached for taking necessary steps for recruitment of kanungos since the post of kanungo was upgraded as second Class Post but the Public Service Commission, by its letter dated 25.2.1998, informed the Ministry concerned that after upgrading the post of kanungo from 3rd Class to Second Class Gazetted post, Recruitment Rules Required to be amended. The respondents claimed that the Ministry did not take any steps for necessary amendment of the Recruitment Rules. They further claimed that without giving effect to the pay scale and without amending Recruitment Rules, direct recruitment to the post of kanungo would be unlawful and this attempt of recruitment was made with an ulterior motive to frustrate the notification regarding upgrading of the post of kanungo to the second class gazetted post.
5. The respondents of the writ petition appeared by filing affidavit-in-opposition. Their case is that 106 post of kanungo fell vacant and the Government was sustaining loss due to difficulties in collection of land revenue in the absence of required number of kanungos and as such the Government took steps for filling up the vacant posts. For the same purpose, the advertisement was made and steps were taken for recruitment of 106 kanungo. Father case is that the question of giving effect to the gazette notification regarding up gradation of the post of kanungo was not possible as the Ministry of Finance did not approve the decision of upgrading post of kanungo. It is also claimed that the proposed recruitment would not affect the interest of the writ petitioners in any way and as such they were not aggrieved person and the writ petition was not maintainable.
6. The High Court Division after considering the legal position held that as the upgradation was made in pursuance to the gazette notification dated 10.7.1997, recruitment to the post of kanaungo In the earlier scale of 3th class post will not be lawful because after the upgradation, the post kanungo became second class post and recruitment to such post can only be made by the public Service Commission. The High Court Division also directed the respondents to take necessary steps in the light of the gazette notification dated 10.7.1997 to give effect to the matter and also directed the respondents to take steps in the matter of upgradation to second class gazetted post as spelt out by the public Service Commission in its letter dated 25.2.1998. The High Court Division also gave a time limit of 90 days from the date of making an application by the petitioners to the respondents attaching certified copy of the judgment.
7. Leave was granted to consider whether gazette notification about upgrading the post of kanungo with the new scale confers any right in favour of the respondent Nos. 1-5 (that is writ petitioners) and whether the advertisement for recruitment of kanungo has affected the right of the respondents in any adverse manner and whether they are aggrieved persons.
8. Mr. Fida M. Kamal, the learned Additional Attorney General appeared on behalf of the appellants, that is the Secretary Ministry of land and others. He has mainly confined his argument to the point that the respondents have not in any way been affected by the advertisement for recruitment of 106 kanungos. He has repeated the argument which was advanced before the High Court Division that because of the vacancy in the above number of posts of kanungo the Government was sustaining loss in revenue collection. He has argued that if in view of the gazette notification dated 10.7.1997, the post of kanungo is finally upgraded by implementing the pay scale, the respondents will not be in any way deprived nor their rights would be affected if the recruitments are made now before giving full effect to the above gazette notification regarding up gradation of the post of kanungo to the Second Class Gazetteed Post. So, Mr. Fida Kamal has emphasized on the point that the respondents will not be affected by the recruitment in question and as such they are no aggrieved persons. So, according to him the writ petition was not at all maintainable.
9. Mr. Abdul Wadud Bhuiyan the learned Senior Advocate who appeared on behalf of the respondent Nos. 1-5, has supported the judgment and order of the High Court Division. His main argument is that by the gazette notification dated 10.7.1997 the post of kanungo was upgradaed to second class post and as such the recruitment of any kanungo under the previous scale of 3rd class post will be totally illegal. He has given emphasis on the point that after the upgradation of the post to second class post, any recruitment to that post may be made only through public service Commission and recruitment if made directly will be totally legal. However, Mr. Bhuiyan could not give any satisfactory reply as to how the respondents will be affected if the vacant posts of kanungos are filled up in pursuance to the advertisement in question. Mr. Bhuiyan tried to say that such recruitment will make the upgradation complicated and such recruitment ultimately may frustrate the upgradation.
10. We have perused the gazette notification, which is Annexure-J of the writ petition (the photo copy of this Annexure-J is page 87). The same has been reproduced below:-
তারিখ, ২৬ শে আষাঢ় ১৪০৪/ ১০ ই জুলাই ১৯৯৭
নং ভুমঃ/শ-১২-৩২/৯০-১৯৮ সরকার বানুনগো পক্ষকে দ্বিতীয় শ্রেণীর গেজেটেড পদ হিসাবে উন্নীত করিতে ও বর্তমান পদদাবিগণকে দ্বিতীয় শ্রেণিতে স্থাপন করিতে সম্মতি প্রদান করিয়াছেন। পদটির পূর্বের বেতন স্কেল ও মর্যাদা এবং উন্নীত বেতন স্কেল ও মর্যাদা নিম্নরুপঃ
|পদের নাম পূর্বের বেতন ও স্কেল পূর্বের মর্যাদা|
11. From paragraph 2 (two) of this notification we find that the enhanced pay scale for the upgraded post of kanungo would be given effect after approval of the finance Division of the Ministry of Finance. It is admitted that no such approval has yet been given by the Ministry of finance. From the letter of the Ministry of Land dated 24.7.1997 we find that the Ministry of land wrote to the Ministry of Establishment for filling up the vacant posts of kanungo and the Ministry of land requested the Ministry of Establishment for giving advice to the Public Service Commission for recruitment of kanungos as the post has been upgraded to second class. It appears that pubic Service Commission in reply wrote to the Ministry of Land that in order to make recruitment in the Second Class Gazetted Post, relevant Service Rules required to be amended. Admittedly, the relevant service rules has not yet been amended. So, from the above we find that neither the Ministry of Finance has given any approval to enhance pay scale nor service rules has been amended. However, this is clear from the gazette notification that the post of kanungo has been upgraded to Second Class Gazetted post.
12. Mr. Abdul Wadud Bhuiyan however, has tried to impress upon us that if the appointments are now made without giving the pay scale and without amendment of service rules, ultimately complication will arise and it may hamper upgradation of the post of Kanungos. We cannot agree with this view of the learned Counsel. Filling up the vacant posts of kanungos under the existing rules cannot, or will not in any way hamper the upgradation and by such recruitment, the interest of the respondents will not be affected adversely or in any way. If the enhanced pay scale is approved by the Ministry of Finance and Service rules are amended, all the respondents will get the benefits of such upgradation. So, we are convinced that the respondents will not be affected in any way due to recruitment of kanungos and as such they are not aggrieved persons.
13. Abdul Wadud Bhuiyan has emphasized that as the post has already been upgraded, direct recruitment rules will be illegal and as such the respondents are entitled to give relief under article 102(2)(a)(ii) of the constitution. We again cannot agree with the above view of Mr. Abdul Wadud Bhuiyan. The relief under the above provision of the constitution cannot be sought by a person who is not aggrieved. We have found that respondents i.e. the writ petitioners are not aggrieved persons. As they are not aggrieved persons, they cannot seek any relief under article 102(2)(ii) of the constitution.
14. In the above, we have found that the writ petitioner respondents are not aggrieved persons and at the same time we have found that their rights will not be in any way affected if the vacant posts of kanungos are filled up by recruitment under the existing rules and pay scale. However, we may mention here that as regards the question of upgadation of the post of kanungos to the Second Class Post after gazette notification dated 10.7.1997 though a finality has been given but only two things are remaining, one is approval of the proposed pay scale by the Ministry of Finance and the other is necessary amendment in the recruitment rules in the light of upgradation of the post of kanungos to the second class gazetted post. As upgradation has been finally been made by the gazette notification dated 10.7.1997 the Government cannot remain idle for indefinite period to give effect to the said gazette notification. Already more than 6(six) years have elapsed meanwhile. As the appeal is going to be allowed, the government will now be able to make recruitment of kanungos to fill up the vacant posts. This shall not however, preclude the Government from giving effect to the gazette notification dated 10.7.1997 and making necessary amendment in the recruitment rules or service rules.
The appeal is allowed with the above observations and the judgment and order dated 11.12.1999 passed by the High Court Division in Writ Petition No. 3924 of 1999 are set aside.