Sections 7, 14 and 31(2) (d)
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When the legislature in the parent legislation did not signify any
intention to classify the employees of Biman into freedom fighters nd
non—freedom fighters, such classification could not he by the Government
in its Rule making power while exercising the delegated authority under the
parent legislation, since that would amount to acting beyond the .purposes
of the legislation itself—Rule Conferring two years ante-dated seniority
to freedom fighter employees of Biman is ultra vires rule making power
under the Ordinance—Bangladesh Biman Employees (Seniority of Freedom
fighters) Rules, 1980, Rules 2, 3 and 4.
Amirul Islam and others Vs, Bangladesh Birnan Corporation and others; 2 BLD
(AD) 1.
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Amirul Islam and others Vs, Bangladesh Birnan Corporation and others |
2 BLD (AD) 1 |
Sections 14 and 31
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Service matter—Fixation of seniority Interpretation of Statute—Meaning
of the words existing ‘employees’ and ‘new entrants’ in the
regulations made under the Bangladesh Biman Corporation Ordinance—
Whether employees of the Biman whose service has been transferred to the
Corporation are ‘existing employees’ or employees of the Biman as well
as those appointed by the corporation before the coming into force of the
Regulations are also ‘existing employees’?
Majority view per Shahabuddin Ahmed, .J (B.H. Chowdhury and M.H. Rahman JJ
Concurring)-.-The Ordinance was promulgated in 1977 with a provision for
making appointments of officers and employees of the Corporation—In
exercise of power conferred by Article 30 the Corporation has made the
Regulations in December 1979 and it came into force from the date—The
respondents having been appointed earlier than the Regulations, that is, in
June 1978 cannot be brought into the class of ‘new entrants’ as
referred to in Rule 18(a) for the purpose of determination of seniority
unless the Regulations were given effect from the date of such appointment
or from the date of the Ordinance—’Existing employees’ therefore mean
those employees who were in the Corporations service when the Regulations
were made and published—The employees who are appointed after the
Regulation came into force are the ‘new entrant’s—Bangladesh Biman
Regulations, 1979, Rules 18 and 19.
Minority view per Fazie Munim, CJ. (A.T.M. Afzal, J concurring)—The
reference to new entrants’ in the Regulation 18(a) and existing
employees’ in Regulation 19 is to the newly appointed employees of the
Corporation as mentioned under section 14 and the employees of the Biman
who stood transferred to the Corporation under section 31(d) of the
Ordinance respectively—The Regulations cannot in the absence of such
classification in the Ordinance divide the employees into two categories,
such as, ‘new entrants’ and ‘existing employees’—It is only the
parent Act i.e, the Ordinance which must provide the service structure of
the Corporation’s employees—What will be the service structure cannot,
unless authorised expressly by the Ordinance, be affected by or under the
Regulation—Provisions of the Regulations 18(a) and 19 must be construed
with reference to sections 14 and 3 1(d) of the Ordinance which, by their
terms, created the demarcation between the two groups of employees, namely,
those employees of the Biman who stood transferred to the Corporation on
the date of the coming into operation of the Ordinance and those employees
who will be appointed after the Corporation came into force.
Parent Law shall prevail—There is no dispute that provisions of a
subordinate legislation must be in conformity with those of its parent
legislation and in the case of any conflict the provisions of the parent
law shall prevail—In this case the Ordinance is the parent law and the
Regulations are its subordinate legislation—and if there is any vacuum in
the subordinate legislation in respect of any matter,. but about which
specific provision has been made in the parent law, then the provision of
the parent law shall be read into the subordinate legislation.
Bangladesh Biman corporation Vs. Syed Aftab Ali and others; 7BLD (AD) 192.
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Bangladesh Biman corporation Vs. Syed Aftab Ali and others |
7 BLD (AD) 192 |