Act/Law wise: Judgment of Supreme Court of Bangladesh

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উন্নয়ন প্রকল্প হইতে রাজস্ব বাজেটে স্থানান্তরিত পদের পদধারীদের নিয়মিতকরন ও জেষ্ঠতা নির্ধারন বিধিমালা
Section/Order/Article/Rule/Regulation Head Note
Section 2(ga)

বিধিমালা-২০০৫
The Appellate Division directed the Government to consider the case of an employee who was appointed in a development projects could claim absorption as of right in the revenue budget.
The Appellate Division directed the Government to follow the Guidelines:
(i) Whenever any vacancy in LGED is created in the revenue set up, it shall consider for absorption of employees or officers of the development projects within the meaning of section 2(ga) of the Rules, 2005, if the project in which s/he is working is completed subject to the condition that such employee or officer has requisite qualifications for the said post. (ii) Whenever a vacant post is created in the revenue budget, the LGED shall absorb/transfer an employee or officer from the development project mentioned in clause (1) to fill up that post in accordance with Rules of 1985 and the ECNEC’S decision dated 10th January, 2008.
(iii) An officer or employee shall be absorbed if s/he was appointed in the development project within the meaning of rule 2(ka) of Rules, 2005 in accordance with the procedures prescribed for appointment in public employment.
(iv) An officer or employee must have requisite qualifications for the post in which he is seeking absorption.
(v) An officer or employee must have continuity in service in the project in which he is working.
(vi) An officer or employee must have satisfactory service record before his case is considered for regularization in the revenue budget.
(vii) If an officer and employee whose rank and status does not relate to the posts advertised by the impugned notifications on the day of its publications, such officer or employee would not be eligible for consideration for absorption.
(viii) The employees and officers who have been working in the development projects mentioned in clause (1) on monthly pay basis would only be eligible for consideration for absorption in the revenue budget.
(ix) Unless and until vacancies in the revenue budget in the LGED are created, the employees and officers of the development projects mentioned in clause (1) can not claim as of right to be absorbed in the revenue budget;
(x) While considering and selecting an employee or officer of the development project for absorption in the revenue budget, the appointing authority shall maintain strictly the prevailing quota system for employment in the public employment being followed by the Government.
(xi) The LGED shall consider the cases of those working on master roll basis for absorption in the revenue budget by phases if they have requisite qualifications subject to availability of vacancies according to their seniority.
Government of the People’s Republic of Bangladesh, represented by the Secretary, Ministry of Finance, Finance Division, Bangladesh Secretariat and others -Vs.- Md. Harun-or-Rashid and others (Civil) 12 ALR (AD) 64-66 ....View Full Judgment

Rule 4

“Bidhimalas” 1995 A rule which has force of law cannot be ignored or impeded its enforcibily only because it is in conflict with the Circular. The High Court Division failed to notice that the Circular which has been circulated by a Ministry which has no force of law. It is issued for the purpose of internal departmental officials to follow the guidelines and the violation of any of the provision does not confer a right upon an officer or employee, which can be enforceable by law. Secondly, the Rules have been promulgated by the government in accordance with the provisions of the constitution, which will prevail upon the Circular.
The Appellate Division observed that under rule 4 of Rules 1995, the criteria for determining the seniority has been spelt out. In presence of these Rules, the writ petitioners cannot claim any right on the basis of the Circular of the Ministry of জনপ্রশাসন dated 11th January, 1992. The High Court Division without declaring the rule 4 of the Regularisation and Determination of Seniority of the Employees transferred from the development projects declared the writ petitioners as senior to the writ respondents mainly on the reasoning that had they been regularized within six months they would not have opposed rule 4. How fallacy the opinion is? A rule which has force of law cannot be ignored or impeded its enforcibily only because it is in conflict with the Circular. It failed to notice that the Circular which has been circulated by a Ministry which has no force of law. It is issued for the purpose of internal departmental officials to follow the guide-lines and the violation of any of the provision does not confer a right upon an officer or employee, which can be enforceable by law. Secondly, the Rules have been prom-ulgated by the government in accordance with the provisions of the constitution, which will prevail upon the Circular.
Bangladesh and others -Vs.- Mrs. Nadira Begum and others (Civil) 12 ALR (AD) 162-170 ....View Full Judgment

“Bidhimalas” 1995 or 2005
Absorption or regularize service matter–
Accordingly, it is observed that:
1. The legitimate expectation would not override the statutory provision. The doctrine of legitimate expectation can not be invoked for creation of posts to facilitate absorption in the offices of the regular cadres/non cadres. Creation of permanent posts is a matter for the employer and the same is based on policy decision.
2. While transferring any development project and its manpower to revenue budget the provisions provided in the notifications, government orders and circulars quoted earlier must be followed. However, it is to be remembered that executive power can be exercised only to fill in the gaps and the same cannot and should not supplant the law, but only supplement the law.
3. Before regularization of service of the officers and employees of the development project in the revenue budget the provisions of applicable “Bidhimala” must be complied with. Without exhausting the applicable provisions of the “Bidhimala” as quoted above no one is entitled to be regularised in the service of revenue budget since those are statutory provisions.
4. The appointing authority, while regularising the officers and employees in the posts of revenue budget, must comply with the requirements of statutory rules in order to remove future complication. The officers and employees of the development project shall get age relaxation for participation in selection process in any post of revenue budget as per applicable Rules.
5. A mandamus can not be issued in favour of the employees directing the government and its instrumentalities to make anyone regularized in the permanent posts as of right. Any appointment in the posts described in the schedule of Bangladesh Civil Service Recruitment Rules, 1981, Gazetted Officers (Department of Live Stock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Live Stock Service) Recruitment Rules, 1985 bypassing Public Service Commission should be treated as back door appointment and such appointment should be stopped.
6. To become a member of the service in a substantive capacity, appointment by the President of the Republic shall be preceded by selection by a direct recruitment by the PSC. The Government has to make appointment according to recruitment Rules by open competitive examination through the PSC.
7. Opportunity shall be given to eligible persons by inviting applications through public notification and appointment should be made by regular recruitment through the prescribed agency following legally approved method consistent with the requirements of law.
8. It is not the role of the Courts to encourage or approve appointments made outside the constitutional scheme and statutory provisions. It is not proper for the Courts to direct absorption in permanent employment of those who have been recruited without following due process of selection as envisaged by the constitutional scheme.
In view of the discussion made above and since it is not apparent from the judgment of the High Court Division and other materials available in the record that the procedure provided in the Government notification, indicated in the “Bidhimalas” 1995 or 2005 have been followed duly, the direction of the High Court Division to absorb/regularise their service giving continuity of the same can not be approved. So, the same is set aside. …Ministry of Fisheries and Livestock =VS= Abdur Razzak, (Civil), 2019 (2) [7 LM (AD) 330] ....View Full Judgment