Shanta Chandra Vs. Bangladesh and others, (Muhammad Khurshid Alam Sarker, J.)

Case No: Writ Petition No. 13889 of 2016

Judge: Md. Rezaul Haque, J And Muhammad Khurshid Alam Sarkar, J

Court: High Court Division,

Advocate: Mr. Abdul Matin Khasru, Senior Advocate with Mr. Md. Bashir Hossain Fakir, Mr. Jyotirmoy Barua and Mr. S.M. Jahangir Alam, Advocates ,

Citation: 2018(2) LNJ

Case Year: 2018

Appellant: Shanta Chandra Chakroborty and others

Respondent: Bangladesh and others

Subject: Constitution of Bangladesh

Delivery Date: 2019-11-30

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Md. Rezaul Haque, J

And

Muhammad Khurshid Alam Sarkar, J

 

 

Judgment on

13.02.2018

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}

}

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Shanta Chandra Chakroborty and others

. . .Petitioners

-Versus-

Bangladesh and others

. . .Respondents

Constitution of Bangladesh, 1972

Article 102

The Government is reminding its concerned officials every so often about the policy of the Government regarding distribution of public jobs in each of the districts of Bangladesh. The State functionaries and the Government functionaries are legally bound to implement the policy decision of the Government through application of the provisions of the Circulars regarding district-quota. Until the Government takes a decision to cancel the district-quota or this Court declares the said policy to be unconstitutional at the instance of any aggrieved party, the application of the provisions relating to district-quota shall be continued.      . . . (19)

Constitution of Bangladesh, 1972

Article 102

These petitioners are not competent to challenge the policy of district-quota, for, they are the beneficiaries of one branch of quota system (freedom fighters quota) and, now, if they seek annulment of other branch (district-quota) of the quota system, it shall amount to approbation and reprobation resulting in making the petitioners disqualified to invoke writ jurisdiction.                    . . . (19)

Constitution of Bangladesh, 1972

Article 102

No special recruitment, which aims at recruiting only from the family members of the freedom fighters, or a general recruitment, which is open to all classes of people, for appointments in the public offices can be carried out from a single district as long as the Government policy regarding allocation of public jobs in each of the districts of Bangladesh is in operation.                . . . (23)

Constitution of Bangladesh, 1972

Article 102

The specific object of this recruitment is to provide jobs to the family members of the freedom fighters from each district, which may be the freedom fighters themselves or the children or the grandchildren. So, when the respondents are recruiting from the grandchildren category from a district where children category candidates are not available, the object of providing jobs to the family members of the freedom fighters from each of the districts of Bangladesh, in fact, is being achieved. The petitioners have been given the opportunity to apply for this post on special consideration as the family members of the freedom fighters outclassing the thousands of brilliant job-aspirants from the non-freedom fighters family and, therefore, as the members of freedom fighters family, the petitioners have no right to oppose the inclusion of the next-below category of the members of the freedom fighters family, namely, the grandchildren when children category are not available in a district.        . . . (23)

Kazi Md. Salamatullah and others Vs. Government of Bangladesh and others, ALR 2016(1) 147 ref.

Mr. Abdul Matin Khasru, Senior Advocate with

Mr. Md. Bashir Hossain Fakir,

Mr. Jyotirmoy Barua and

Mr. S.M. Jahangir Alam, Advocates

. . . For the petitioner

Mr. Md. Abdur Rahman, Advocate

. . . For respondent no. 2

Mr. Syed Hasan Zobair, Advocate

. . . For respondent no. 6

Mr. Md. Khurshedul Alam, DAG

. . . For Respondent no. 1A.

JUDGMENT

Muhammad Khurshid Alam Sarkar, J: Rule was issued calling upon the respondents to show cause as to why the notice bearing no. 02/2016 dated 24.08.2016 published by respondent no. 5 selecting 655 candidates for the post of Senior Officer in the Agrani Bank Limited (Annexure-F), should not be declared to be illegal and without lawful authority and is of no legal effect for inclusion the grandsons/granddaughters of the freedom fighters therein and why the respondents should not be directed to appoint the petitioners, who are the sons/daughters of the freedom fighters, in place of the selected grandsons/granddaughters of the freedom fighters, to the post of Senior Officer in the Agrani Bank Limited, and/or pass any other order or direction as this Court may deem fit and proper.

2.           The facts of the case of the petitioners, succinctly, are that on 01.04.2015 the Agrani Bank Limited (hereinafter referred to as ‘Agrani Bank’ or respondent no. 4) published a special job advertisement under the caption of gyw³‡hv×v †KvUvq we‡kl wb‡qvM weÁwß” (advertisement for special recruitment under the quota of the freedom fighters) for the post of Senior Officer by specifically mentioning that only and only the sons/daughters and grandsons/ granddaughters of the freedom fighters are eligible to apply for the post (annexure B). The petitioners as the sons/daughters of the freedom fighters applied for the said post and their applications were found to be valid as per the criteria stipulated in the said special job advertisement and, accordingly, Agrani Bank issued the admit cards for examination in favour of the petitioners fixing the date and time of examination on 03.07.2015. Thereafter, the petitioners took part in the written examination on 03.07.2015 and the result of the written examination was published on 29.02.2016 where the petitioners are shown to have successfully passed the said written examination. Thereafter, on 08.05.2016 the Bankers Recruitment Committee of Bangladesh Bank (respondent no. 7) vide notice no. 27/2016 asked the petitioners and other successful contestants to face the viva voce examination and, accordingly, the petitioners faced the interview. On 24.08.2016, the General Manager (Administration) of Agrani Bank (the respondent no. 5) vide the notice no. 02/2016 published the names of 655 candidates declaring them to have been finally selected for the said post. The petitioners did not find their names in the aforesaid list of selected candidates and further found out that out of the aforesaid 655 selected candidates, many of them are the grandsons/ granddaughters of the freedom fighters.

3.           After knowing this illegality, the petitioners called on the Minister for Ministry of Liberation War Affairs and requested him to interfere in their matter. On 05.09.2016, the Minister by issuing a DO letter bearing DO No. 48.00.0000.100.01. 001.2016.2606 dated 05.09.2016 wrote to the Governor of Bangladesh Bank (respondent no. 2) with a request to do the needful for mitigating the petitioners’ grievances. But till date, the names of the petitioners have not been published as the selected candidates and, under this circumstance, the petitioners filed the present writ petition challenging the impugned notice under no. 02/2016 dated 24.08.2016 in addition to seeking this Court’s direction upon the respondents to appoint them on priority basis before appointing the grandchildren of the freedom fighters. Hence, is the instant Rule.

4.           By filing two separate affidavits-in-opposition, the Bangladesh Bank (respondent no. 2) and Agrani Bank (respondent no. 4) stated that while Agrani Bank was responsible for publishing the special job advertisement for the post of the Senior Officer on 01.04.2015 towards recruiting the sons/daughters of the freedom fighters and, if the sons/daughters of the freedom fighters are not available, then, grand sons/grand daughters, the rest of the task for recruitment was entrusted to the Bankers Selection Committee of the Bangladesh Bank. It is stated that the respondents fully agree with the petitioners’ claim that the ‘special advertisement’ has been made only for the sons/daughters & the grand sons/daughters of the freedom fighters. But this does not mean that if the sons/daughters or grandsons/grnddaughters of the freedom fighters from a single district top the entire merit list of 655 dominating over 63 districts’ children/grandchildren of the freedom fighters, they would be appointed from the said one district depriving the sons/daughters or grandsons/granddaughters of the freedom fighters from the remaining 63 districts of the country. It is claimed by the respondents that since, by issuing Circulars, the Government has introduced the equitable distribution of public employments in all the districts, based on the quantity of population of each district, therefore, at first, the district-wise quota has been calculated and, then, in every district the sons/daughters of the freedom fighters have been recruited as per the merit list. In some of the districts, there being non-availability of the sons/daughters as per the merit list, grandsons/granddaughters have been called. It is stated that in the 64 districts 580 sons/daughters of the freedom fighters were available on the basis of the population of each district. Hence, in 16 posts the grandsons/granddaughters have been called. In 2 districts, namely Bandarban and Rangamati, the requirements were 5 posts but there were no candidates and in 16 districts the candidates were short for 54 posts. As per the provisions of district-quota, in 52 districts, a total of 596 candidates were recruited and the rest 59 candidates have been called as per the merit list; 2 from Sherpur, 7 from Cox’s Bazer, 1 from Khagrachari, 2 from Bandarban, 3 from Rangamati, 1 from Laxmipur, 3 from Joypurhat, 2 from Dinajpur, 4 from Thakurganon, 2 from Naogaon, 1 from Natore, 2 from Chapainawabgonj, 2 from Gaibandha, 3 from Nilphamari, 4 from Bhola, 10 from Sylhet, 3 from Habigonj and 7 from Moulavibazar. In this process, from the merit list 17 sons/daughters of the freedom fighters were inducted and the rest 42 got recruitment from the next below category of grandsons/granddaughters of the freedom fighters. In total, 58 grandsons/granddaughters of the freedom fighters and 597 sons/daughters of the freedom fighters have been recruited against the total 655 posts. It is asserted that the entire recruitment process has been completed in accordance with the stipulations stated in the job advertisement and as per the Circulars/laws of the country. The Governor of Bangladesh Bank in his DO letter dated 02.01.2017 to the Minister for the Ministry of Liberation War Affairs, in reply to the latter’s DO letter dated 05.09.2016, made it abundantly clear that the selection was made as per the Government Rules/Circulars.

5.           Mr. Abdul Matin Khasru, the learned Senior Advocate appearing for the petitioners, takes us through annexure-B to the writ petition, which is the job advertisement dated 01.04.2015, and submits that no statement is made in the said advertisement to appoint the grandsons/granddaughters of the freedom fighters bypassing the successful sons/daughters of the freedom fighters. In a bid to elaborate the above count of submission, he points out that it is clearly stated in the said special job advertisement that only in case of non-availability of the sons/daughters of the freedom fighters, the grandsons/granddaughters of the freedom fighters would be eligible for appointment to the said post.

6.           He then places before us the Circular of the Ministry of Public Administration issued under the memo No. GgBAvi/Avi-1/Gm-13/84-149(250) dated 28.07.1985 and submits that according to this Circular there is no scope to appoint any grandson/granddaughter of the freedom fighters in any public post when sons/daughters of the freedom fighters are available. The learned Senior Advocate submits that the aforesaid Circular is the law of the land and the respondents are depriving the petitioners of their fundamental rights to be treated in accordance with law as guaranteed in Article 31 of our Constitution and, thereby, denying opportunity in the service of the Republic as guaranteed under Article 29 of the Constitution by not selecting the petitioners in the advertised public employment in the post of Senior Officer in Agrani Bank.

7.           The learned Senior Advocate for the petitioners further submits that the provisions of the Government Circulars governing the district-quota are not applicable in this case, for, this is a special recruitment. Mr. Khasru then submits that since there was no mentioning of allocation of district-quota in the job advertisement dated 01.04.2015, it has been the petitioners’ legitimate expectation that the successful sons/daughters of the freedom fighters will be given priority over the grandsons/granddaughters. In an endeavour to clarify the above count of submission, he goes on to say that in view of the fact that at the time of submission of the applications, the petitioners were given an understanding by the respondents that they will be appointed as per the merit list prepared only with the successful sons/daughters of the freedom fighters and only after exhausting the candidates from this category i.e. sons/daughters of the freedom fighter, the candidates from the next category, namely, grandsons/granddaughters of the freedom fighters, would be given the opportunity and, therefore, it has been a legitimate expectation of the petitioners that the respondents shall not seek to distribute the jobs among the freedom fighters’ grandchildren in a district where sons/daughters are not available.

8.           By making the above submissions, the learned Advocate for the petitioners prays for issuing mandamus upon the respondents for appointing the petitioners by declaring the impugned notice illegal and thereby making the Rule absolute.

9.           Per contra, Mr. Abdur Rahman, the learned Advocate appearing for the Bangladesh Bank, places before us the following Government Circulars which regulate the district-quota and freedom fighters quota in our country; (i) Estt/RI/R-73/72-109(500) dated 05.09.1972, (ii) bs-GgB Avi-1/Gm-13/84-149(250) ZvwiL 28-07-1985 wLªt, (iii) bs-mg (wewa-1)-Gm-8/95 (Ask-2)56 (500), 17.03.1997 Bs, (iv) bs- mg (wewa-1) Gm-09/2009-442, dated 20.12.2009, (v) bs-05.170.022.07.04.068.2010-150 ZvwiL-05B †g, 2010 wLªt, (vi) bs- 05.170.022.07.01.124.2010-26, ZvwiL 16 Rvbyqvwi, 2011 wLªt and (vii) bs-05.00.0000.170.22.062.13-99 dated 16.03.2015 and,  side-by-side, the DO letter No. GA-03/2017-01 dated 02.01.2017 and submits that the Governor of Bangladesh Bank has clarified in detail as to how the Bangladesh Bank has applied the provisions of district-quota in dealing with this special recruitment for the children and grandchildren of the freedom fighters. He agitates that after submitting the above letter before this Court, there should not be any factual issue or law points to be adjudicated upon by this Court. Mr. Rahman, then, raises a question about the standing of the petitioners by submitting that despite clearly knowing the reasons for non-inclusion of their names in the list of the selected candidates, they have approached this Court simply for wasting time of this Court under the camouflage of seeking judicial review and, therefore, as he submits, this is clearly being an abuse of the process of the Court, the petitioners should be regarded as not bonafide petitioners. Mr Rahman then submits that the petitioners having not come with clean hands before this Court, the present writ petition is not maintainable.

10.       Mr. Syed Hasan Zobair, the learned Advocate appearing for Agrani Bank, at the very outset of making his submissions, draws our attention to the previous orders passed by this Court in dealing with this matter and submits that previously the petitioners had non-prosecuted this Rule, because, after receiving the Governor of Bangladesh Bank’s explanations as to the petitioners’ non-inclusion in the list of the selected candidates, they could not satisfy this Court what else was left for examination by this Court. He submits that if anyone with ordinary prudence goes through the Governor’s letter, s/he would not have any option but to take a view that the petitioners’ grievance is without any basis. He submits that since no provision of any statutory law or Circular has been violated, no illegality has been committed by the respondents. Mr. Zobair next submits that since there has not been any violation of law in dealing with the petitioners’ matter and, thus, no question of violation of Article 29 and 31 of the Constitution arises.

11.       Mr. Khurshedul Alam, the learned DAG, contends that it is fully known to each and every public job-aspirant of Bangladesh that the provisions of the Government Circulars relating to the freedom fighters quota and district-quota are being strictly applied in public employments. He argues that it is illogical for the petitioners to claim that in their case, the provisions of district-quota would not be applicable and the entire vacant posts may be filled up from a single district. In an endeavour to explain the contents of the affidavit-in-compliance, he submits that in the first affidavit-in-compliance it has been confirmed by the concerned Ministry that the provisions regarding the freedom fighters-quota must be followed in all types of public recruitment and in the second affidavit-in-compliance it has been sought to state by the concerned Ministry that no general candidate can be inducted in the special recruitment on the strength of the provisions of district-quota. He begs unconditional apology in this regard on behalf of the Ministry that their expressions in the second affidavit-in-compliance have been a bit cumbersome. He contends that, by the second affidavit-in-compliance, the Ministry has actually meant that since this is a special recruitment for the freedom fighters’ children/grandchildren, therefore, in case of their non-availability, the children of non-freedom fighters shall not be entitled to be recruited taking recourse to the Circular governing the district-quota system.

12.       All the learned Advocates of the respondents’ side and the learned DAG, by making their respective above submissions, pray for discharging the Rule upon slapping exemplary costs for wasting valuable time of this Court. 

13.       After hearing the learned Advocate for the petitioners, the learned Advocates for respondent nos. 2 and 4 and the learned DAG, upon perusing the writ petition, affidavits-in-opposition as well as the affidavits-in-compliances together with their annexures and also on reading the relevant laws and Circulars, it appears to us that the lone question emerges for consideration of this Court is whether the provisions of the Government Circulars regulating the district-quota are applicable in the petitioners’ case. In other words, whether upon exhausting the merit list of the category of freedom fighters’ children from all over Bangladesh, should the next category, namely, grandchildren of the freedom fighters, be given chance, Or whether at first a district-wise list of the successful freedom fighters’ children and grandchildren will be prepared so that in case of non-availability of the children of the freedom fighters in a district, the said district’s other category of freedom fighters’ family members, namely, grandchildren of the freedom fighters could be employed in order to have representation from the said district. 

14.       It is an admitted fact that this job advertisement was published exclusively for recruitment of the children & grandchildren of the freedom fighters for the post of Senior Officer of Agrani Bank.  Accordingly, only and only the children & grandchildren of the freedom fighters with requisite qualifications applied for the post and after taking written and viva voce examinations, a combined merit list of the successful candidates was prepared; meaning that there was not one merit list for children and another separate merit list for grandchildren. However, at the time of finally selecting the candidates, at first the children from each of the districts were given priority and, in a district where the children category candidates were unavailable, in that event, the grandchildren of the freedom fighters were included. 

15.       From the papers annexed with the writ petition, it transpires that these petitioners have successfully passed the written examination and, thereafter, faced the viva voce. But finally when the list of selected candidates was published, their names were not included in the said list despite they were at the top of the merit list. As per the claim of the petitioners, only in course of hearing of this Rule they came to know that they had not been selected because of application of the provisions of the district-quota.

16.       It is the case of the petitioners that the present advertisement being a special recruitment solely for the children/grandchildren of the freedom fighters, there is no scope of application of the provisions of district-quota and only in case of un-availability of the children of the freedom fighters from the merit list, the grandchildren of the freedom fighters may get the opportunity. On the other hand, the case of the respondents is that immediately after the independence of this country the policy of district-quota in public employments having been introduced to ensure the allocation of Government jobs in all the districts, the family members of the freedom fighters, be it the freedom fighters themselves (first category) or freedom fighters’ children (second category) or freedom fighters’ grandchildren (third category), from each and every district should get the opportunity in this special recruitment. Thus, it transpires to us that while it is an agreed position that this recruitment is only for the freedom fighters’ children & grandchildren, the mere disagreement exists between the petitioners and the respondents with regard to the issue of application of the provisions of the Government Circulars regulating the district-quota.

17.       Let us now embark on our task of taking a decision as to whether the provisions regarding district-quota are applicable in this case and, thereby, see whether the freedom fighters’ grandchildren are entitled to be recruited before exhausting the merit list of the freedom fighters’ children. The learned Advocates for the respondent nos. 2 and 4 in this respect have taken us through the Government Circular No. Estt/RI/R-73/72-109(500) dated 5th September, 1972, which is reproduced below:

In order to achieve more equitable representation of the people of all the districts of Bangladesh in the various services and posts under the Government (including the Defense Services), autonomous and semi-autonomous organization and the nationalized enterprises. (including financial, commercial and industrial organizations), the Government of the People’s Republic of Bangladesh have decided, as an interim measure, to fill all future vacancies, through the candidates from all the districts on the basis of population of the district.

18.       From a bare reading of the above Government Circular, the scheme of introducing the district-wise quota system is very much apparent. It is a policy of the State and this policy was adopted by the Government immediately after the birth of this country in order to achieve equilibrium in representing the bureaucracy of the Government. While the National Parliament is being represented from each of the districts of Bangladesh, in the aftermath of our great liberation war, the policy-makers of the State probably thought it prudent that the bureaucracy of the State (general administration, judiciary, police, defense, medical, engineering, finance, banking etc) should also be run by the people from each district after being qualified through competitive examinations. From a minute perusal of the numerous Government Circulars regarding district-quota referred to us by the learned Advocates for the respondents, it transpires that the above State policy is in operation in its full vigor as of today. A few of the Government Circulars issued from time to time by the Ministry of Public Administration regulating this thorny issue of district-quota are quoted below:

        In the Circular No. MER-1/S-13/84-149(250) dated 28.07.1985, it was notified that;

pLm fc phÑfÐbj SepwMÉ¡l ¢i¢š­a ®Sm¡ Ju¡l£ (O) Ef-Ae¤­µRc p¡­f­r h¾Ve L¢l­a qC­hz

HC ®r­œ ®jd¡ ¢i¢šL ®L¡V¡ qC­h 45% Hhw ®Sm¡ ¢i¢šL ®L¡V¡ qC­h 55% HC ®Sm¡ ¢i¢šL ®L¡V¡l j­dÉ qC­a j¤¢š²­k¡Ü¡­cl 30%, j¢qm¡­cl 10% Hhw Ef-S¡a£u­cl SeÉ 5% fc pjeÄu L¢l­a qC­hz

19.       In the Circular bs-mg (wewa-1)-Gm-8/95 (Ask-2)56 (500) dated 17.03.1997, it was again reiterated that;

wewfbœ ai‡bi †KvUv

1g I 2q †kªYxi c`mg~‡ni Rb¨ (kZKiv nvi)

3q I 4_© †kªYxi c`mg~‡ni Rb¨ (kZKiv nvi)

1| †gav †KvUv (†Rjv †KvUv ewnfy©Z)

2| GwZgLvbvi wbevmx I kvixwiK cÖwZeÜx (†Rjv †KvUv ewnfy©Z)

3| †Rjv †KvUv (RbmsL¨vi wfwˇZ †Rjv Iqvix e›Ubt

(K) gyw³‡hv×v Ges Dchy³ gyw³‡hv×v cÖv_x© cvIqv bv †M‡j gyw³‡hv×v/knx` gyw³‡hv×v-‡`i cyÎ I Kb¨v|

(L) gwnjv †KvUv

(M) Dc-RvZxq †KvU

(N) Avbmvi I MÖvg cÖwZi¶v m`m¨‡`i †KvUv

(O) Aewkó (†Rjvi mvaviY cÖv_©x‡`i Rb¨)

45%

 

 

 

 

30%

 

 

10%

05%

..

10%

 

10%

 

 

 

30%

 

 

15%

05%

10%

30%

†gvU

100%

100%

In the Circular No. 05.170.022.07.04. 068.2010-150 dated 05.05.2010, it was clarified that;

1| miKvwi/Avav-miKvwi/¯^vqË¡kvwmZ/Avav-¯^vqË¡kvwmZ/wewfbœ K‡cv©‡ikb I `߇i 1g I 2q †kªYxi c‡` mivmwi wb‡qv‡Mi †¶‡Î wewfbœ †Rjvi we‡kl †KvUvi (gyw³‡hv×v 30%, gwnjv 10% I DcRvZxq 5%) k~b¨ m`mg~n cÖ_‡g RbmsL¨vwfwËK †Rjv †KvUv Abyhvqx Dchy³ cÖv_©x‡`i Øviv c~iY Kwi‡Z nB‡e| †Rjv ‡KvUvi mKj c` mswk­ó †Rjvi cÖv_©x‡`i Øviv c~iY Kiv m¤¢e bv nB‡j k~b¨ c`mg~n mswk­ó †KvUvi RvZxq †gavZvwjKv nB‡Z c~iY Kwi‡Z nB‡e|

20.       From a perusal of the above Government Circulars, it is clear that the Government is reminding its concerned officials every so often about the policy of the Government regarding distribution of public jobs in each of the districts of Bangladesh. The State functionaries and the Government functionaries are legally bound to implement the policy decision of the Government through application of the provisions of the Circulars regarding district-quota. Until the Government takes a decision to cancel the district-quota or this Court declares the said policy to be unconstitutional at the instance of any aggrieved party, the application of the provisions relating to district-quota shall be continued. In this Rule, the vires of the Government Circular dated 5th September, 1972 by which the Government introduced the district-quota having not been challenged, we are now not in a position to examine its constitutionality. Huge debates are going on currently on this controversial district-quota issue and this Court someday might be approached by any aggrieved person seeking adjudication of the issue as to whether the so-called equitable principle (the policy of achieving more equitable representation of the residents from all the districts in various services and posts) should dominate recruitment in public service or it should be based on merit. However, these petitioners are not competent to challenge the policy of district-quota, for, they are the beneficiaries of one branch of quota system (freedom fighters quota) and, now, if they seek annulment of other branch (district-quota) of the quota system, it shall amount to approbation and reprobation resulting in making the petitioners disqualified to invoke writ jurisdiction.

21.       It follows that the provisions regarding district-quota are applicable in the petitioners’ case inasmuch as it is the policy of the Government to recruit from all the districts of Bangladesh in any public employment, be it recruitment for the special group of candidates or for general candidates. In this case, thus, the respondents have first calculated the number of posts for each district on the basis of its population and, then, priority was given to the children of the freedom fighters of the said district and when no children is found in a district, only then the grandchildren of the freedom fighters have been selected in compliance with the Government Circular No. 05.170.022.07.01.124.2010-26, dated 16.01.2011, which states that;

ÔÔ(K) gyw³‡hv×v Ges Dchy³ gyw³‡hv×v cªv_©x cvIqv bv †M‡j gyw³‡hv×/knx` gyw³‡hv×v‡`i cyÎ-Kb¨v Ges cyÎ-Kb¨v cvIqv bv †M‡j cyÎ-Kb¨vi cyÎ-Kb¨vÕÕ|

22.       For an effective adjudication of this Rule, this Court in the midst of hearing of the Rule, directed the Ministry of Public Administration to furnish their statements as to whether the Circulars regarding district-quota are applicable in this special recruitment. Their statements are reproduced verbatim hereinafter:   

“The Government has promulgated provisions 30% quota for the freedom fighters in the service of government/semi government, autonomous/semi autonomous institutions and corporations vide circular No. 05.170.022.07.01.124.2010-26 ZvwiLt 16/01/2011 wLªt. This circular is applicable in any forms of recruitment’’.

“Circular No. bs GgB Avi 1/Gm-13/84-149(250) dated 28.07.1985 issued by the then Ministry of Establishment is not applicable in the special recruitment directed at employing the children and grand children of the freedom fighters”.

23.       The above statements furnished by the Ministry of Public Administration appeared to us to be ambiguous and when this Court was striving to figure out the meaning of the statements, we informed the learned DAG that the Ministry’s above statements are not of any use for adjudication of this Rule, he eventually sought apology on behalf of the Ministry and, in an endeavour to clarify the statements, the learned DAG confirmed two aspects of the Ministry’s above-quoted statements. One aspect is that the Circular regarding 30% freedom fighters quota shall be followed in all types of public employment and the second aspect is that in the instant recruitment no general candidate should be recruited on the strength of the provisions of the district-quota.

24.       Be that as it may, our view is that no special recruitment, which aims at recruiting only from the family members of the freedom fighters, or a general recruitment, which is open to all classes of people, for appointments in the public offices can be carried out from a single district as long as the Government policy regarding allocation of public jobs in each of the districts of Bangladesh is in operation. Since in this case, the special category of candidates, namely, only the wards of the freedom fighters  were supposed to be recruited for the post of Senior officer of the Agrani Bank outclassing the non-freedom fighters family members, it would be unreasonable to recruit the family members of the freedom fighters from just one single district, if all the candidates from a single district possess the top serials in the merit list achieving the qualification to grab all the advertised posts. Therefore, it was essential for the respondents to calculate the number of jobs for each of the district, at first. When the category of children was not available in any district, the category of grandchildren has been recruited with an aim that no district remains unrepresented in getting this special job. It is to be borne in mind that the specific object of this recruitment is to provide jobs to the family members of the freedom fighters from each district, which may be the freedom fighters themselves or the children or the grandchildren. So, when the respondents are recruiting from the grandchildren category from a district where children category candidates are not available, the object of providing jobs to the family members of the freedom fighters from each of the districts of Bangladesh, in fact, is being achieved. The petitioners have been given the opportunity to apply for this post on special consideration as the family members of the freedom fighters outclassing the thousands of brilliant job-aspirants from the non-freedom fighters family and, therefore, as the members of freedom fighters family, the petitioners have no right to oppose the inclusion of the next-below category of the members of the freedom fighters family, namely, the grandchildren when children category are not available in a district.

25.       The submissions advanced by the learned Advocate for the petitioners, that there was no mentioning in the job Circular about application of the district-quota, do not have any leg to stand inasmuch as it was the duty of the respondents, as the State-functionaries/Government-functionaries, to follow the relevant Rules of the Circulars at the time of making final publication of the successful candidates and, at the same time, the petitioners ought to have envisaged that the concerned authorities who published the job circular are duty bound to apply the relevant Rules of the Government Circulars in processing this special recruitment.

26.       The above discussions lead us to hold that though the present recruitment is a special recruitment directing at employing only the children/grandchildren of the freedom fighters, yet the respondents are under an obligation to follow the provisions of district-quota and, thus, questions of non-application of any law or violation of the fundamental right of not treating the petitioners in accordance with law under Article 31 of the Constitution do not arise at all. Accordingly, we do not find any illegality in publishing the impugned list of successful candidates for recruitment of Senior Officer of Agrani Bank Limited and, hence, the Rule is liable to be discharged.

27.       Since there is a prayer by the learned Advocate for the respondents and the learned DAG for slapping exemplary costs upon the petitioners, let us consider the said issue. From the order sheets of this Rule, it surfaces that this Rule was previously non-prosecuted by the learned Advocate Mr. Moniruzzaman when he was faced with the question from this Court that after knowing about the reasons for the petitioners’ non-inclusion in the list of the finally selected candidates through the letter issued by the Governor of Bangladesh Bank to the Minister of Liberation War affairs, whether there is any use of handing down a detailed Judgment in this case. In reply thereto, the learned Advocate Mr. Moniruzzaman having read over the contents of the Governor’s letter made lengthy submissions, but ultimately having failed to convince us that there is any merit in this Rule, opted to non-prosecute the Rule to save the invaluable time of this Court. These petitioners, thereafter, upon engaging another lawyer in this case, took a plea in the Appellate Division that they have not instructed Mr. Moniruzzaman to non-prosecute the Rule and the Rule should be restored and, eventually, having been directed by the Hon’ble Appellate Division, this Court heard the parties again at length at the risk of wasting valuable working hours of this Court and, finally, arrived at the same conclusion that there is no substance in the Rule and, this time, this Court does not have any option but to pen down a full-fledged Judgment. In this case, had there been any contentious factual issue for adjudication of this Court, or if the scenario would have been that a complicated question of law is involved in this Rule but the answer that is going to be given by this Division is apparently confusing or, at least, the legal issue involved in the case requires a better interpretation by the Apex Court, in that event, the petitioners’ expectation from this Court to receive a full-fledged Judgment would have been justified.

28.       It is our considered view that after hearing the case at length by either Division of the Supreme Court of Bangladesh, when the issue of a case appears to a learned Advocate to be without any substance, it becomes a bounden duty for the engaged Advocate to let his/her client know the ultimate outcome of the case and, thereby, non-prosecute the Rule, either of his/her own volition or upon taking instructions from his/her clients, towards assisting the Judiciary in reducing the backlog of cases. In this regard, the observations made by this Court in the case of Kazi Md. Salamatullah & others Vs Government of Bangladesh & others ALR 2016(1) 147, may be quoted;

“It is within the competency of an Advocate to non-prosecute a Rule or not to press an application, be it a writ petition or other application, whenever it becomes known to him that facts have been suppressed by the petitioner or if an indication is made by the Court that there is no merit in the case after being afforded the opportunity of presenting his case at length. The source of this power of an Advocate is his Vokalatnama, wherein all the litigants confer upon an Advocate the power of filing the case in tandem with the power to do the needful in connection with the said case which necessarily includes the power of taking a decision to non-prosecute a petition (not to press a petition) and non-prosecute the Rule. However, to be on safer side, the filing Advocate may seek a written instruction from his client for an untainted and bonafide case where the writ petition/application is immune from the blame of suppression of facts or adopting any other unfair means.”

29.       In the present case, the patient’s disease having been clearly diagnosed to be very simple, when the doctor prescribed the appropriate medicine, taking the patient to the ICU was unnecessary; meaning that when the issue for adjudication by this Court having been framed on consent and its answer having been given by this Court in unambiguous language in the open Court after affording the petitioners to advance their arguments as lengthy as they had wished, the learned Advocate Mr. Moniruzzaman had rightly non-prosecuted the Rule as an officer of this Court and, therefore, the petitioners’ subsequent steps of approaching the Apex Court and, then, to compel this Court to hand down a detailed Judgment upon rehearing the matter was not necessary. 

30.       It is fairly reasonable to take a presumption by this Court that existence and operation of the provisions of district-quota is well within the knowledge of all the job seekers in public sectors and, with such knowledge, it was not a prudent step on the part of the petitioners, who are post-graduate degree-holders, to squander their time and invest money in pursuing writ petition. Even if the above presumption might be rebuttable in favour of the general people, the beneficiary groups of the quota-system, such as the freedom fighters’ family, is not competent to say that they are unaware of the said provisions. More so, when after hearing the issue at length this Court expressed its opinion in open Court, it was the duty of the petitioners to non-prosecute the Rule. By not doing so, we find that this is a fit case to slap exemplary costs upon the petitioners for wasting valuable time of this Court.

31.       However, taking into consideration of the fact that the petitioners are unemployed youths of the land and, in their desperation of getting a favorable order from this Court, they might have insisted upon their learned Advocates to have their matter heard again, we restrain ourselves from slapping any costs upon them.

 

32.       In the result, the Rule is discharged without any order as to costs. The order of statuesque granted by this Court at the time of issuance of the Rule is hereby vacated.