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
|
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 |
12 ALR (AD) 64 |
Rules 3 & 4
|
Whether the provisions of the উন্নয়ন প্রকল্প
হইতে রাজস্ব বাজেটে
স্থানান্তরিত পদের
পদধারীদের নিয়মিতকরন ও
জ্যেষ্ঠতা নির্ধারন
বিধিমালা-২০০৫ are applicable only for the employees
of the project under the Government, or it is also equally applicable for
regularisation/absorption of the employees of the project under any
statutory body.
Though the said বিধিমালা-২০০৫ have been framed
apparently for the government servants, there is no bar to take the benefit
of the said Rules in the backdrop of non-existence of the similar Rules in
any of the statutory bodies of our country and, secondly, the employees of
all the projects, be they under any department of government or under any
statutory bodies, are directly funded by the government and from that point
of view the project employees of a statutory body are in the service of the
government. Moreover, there are innumerable Rules which, though framed for
the purpose of regulating the affairs or conducts of the government
servants, are also frequently used for the statutory bodies unless there is
any provision in any Rule barring its application for the employees of the
statutory bodies. Dr. Muhammed Sohel Rana and others. -Vs.- Bangladesh
represented by the Secretary, Ministry of Science and Information
Technology, Bangladesh Secretariat and others. (Spl. Original) 2019 ALR
(HCD) Online 8
....View Full Judgment
|
Dr. Muhammed Sohel Rana and others. -Vs.- Bangladesh represented by the Secretary, Ministry of Science and Information Technology, Bangladesh Secretariat and others |
2019 ALR (HCD) Online 8 |
Rule 4 (3)
|
উন্নয়ন প্রকল্প হইতে রাজস্ব
বাজেটে স্থানান্তরিত পদের
পদধারীদের নিয়মিতকরণ ও
জ্যেষ্ঠতা নির্ধারণ
বিধিমালা, ২০০৫
Sub-Rule (3) of Rule 4:
Undeniably the post of the petitioner is beyond the jurisdiction of the
Public Service Commission and that being so, for regularizing the service
of the petitioner, the recommendation of the DPC or the Selection
Committee, as the case may be, is a must. But admittedly no recommendation
of the DPC or the Selection Committee, as the case may be, was obtained
prior to regularization of the service of the petitioner in BARI. So we
find that the petitioner was regularized in the service of BARI as
Assistant Director (Finance and Accounts) on 24.05.2006 in flagrant
violation of Sub-Rule (3) of Rule 4 of the Rules of 2005. ...Md. Mahbubur
Rahman Vs. Bangladesh & Ors., (Civil), 1 SCOB [2015] HCD 18
....View Full Judgment
|
Md. Mahbubur Rahman Vs. Bangladesh & Ors. |
1 SCOB [2015] HCD 18 |
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
|
Bangladesh and others -Vs.- Mrs. Nadira Begum and others |
12 ALR (AD) 162 |
Rule- 4(3) and 5(1)
|
The seniority of the employees absorbed in the revenue set up from
development project is to be counted from the date of regularization of
their service in the revenue set up.–– From Clause 3 of Rule 4 and
Clause 1 of Rule 5 of the Rules of 2005 it is evident that the seniority of
the employees absorbed in the revenue set up from development project is to
be counted from the date of regularization of their service in the revenue
set up and this regularization depends on the recommendation of Public
Service Commission or departmental promotion or selection committee, as the
case may be. This recommendation of Public Service Commission,
undisputedly, is not given within any timeframe. In many cases, it takes a
long time, sometimes several years, to give its recommendation/opinion for
regularization of the employees absorbed in the revenue set up from
development project and the delay affects seniority of the employees who
were absorbed in the revenue set up from development project to the
employees who were directly appointed in the Government service long after
absorption in the revenue set up.–– Thus, this aspect should be
addressed by the respondents in order to create equal opportunity for all.
All the civil appeals are dismissed with the observation made above.
.....Sultana Zahid Parvin =VS= S.M. Fazlul Karim, (Civil), 2022(2) [13 LM
(AD) 205]
....View Full Judgment
|
Sultana Zahid Parvin =VS= S.M. Fazlul Karim |
13 LM (AD) 205 |
Rule 4(3)
|
Undeniably the post of the petitioner is beyond the jurisdiction of the
Public Service Commission and that being so, for regularizing the service
of the petitioner, the recommendation of the DPC or the Selection
Committee, as the case may be, is a must. But admittedly no recommendation
of the DPC or the Selection Committee, as the case may be, was obtained
prior to regularization of the service of the petitioner in BARI. So we
find that the petitioner was regularized in the service of BARI as
Assistant Director (Finance and Accounts) on 24.05.2006 in flagrant
violation of Sub-Rule (3) of Rule 4 of the Rules of 2005. ...Md. Mahbubur
Rahman Vs. Bangladesh & Ors., 1 SCOB [2015] HCD 18
....View Full Judgment
|
Md. Mahbubur Rahman Vs. Bangladesh & Ors. |
1 SCOB [2015] HCD 18 |
Rules 5(1)
|
Whether the date of joining in the project or the date of
regularisation/absorption in the revenue set up is the basis for fixation
of the seniority.
The date of regularisation’ of an employee, who has been absorbed in the
revenue set up from the project, should be the basis for fixation of the
seniority. Dr. Mu-hammed Sohel Rana and others. -Vs.- Bangladesh
represented by the Secretary, Minis-try of Science and Information
Technology, Bangladesh Secretariat and others. (Spl. Original) 2019 ALR
(HCD) Online 8
....View Full Judgment
|
Dr. Muhammed Sohel Rana and others. -Vs.- Bangladesh represented by the Secretary, Ministry of Science and Information Technology, Bangladesh Secretariat and others |
2019 ALR (HCD) Online 8 |
Absorption or regularize service matter–
|
“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
|
Ministry of Fisheries and Livestock =VS= Abdur Razzak |
7 LM (AD) 330 |
|
There is no scope to give retrospective effect to the appointments of the
project-employees when they will be absorbed in the regular service. The
reason for non-granting ‘retrospective effect’ is that endowing the
project employees with retrospective effect would create anomalies in
fixation of the seniority with the employees who were recruited directly
against the regular posts. Dr. Muhammed Sohel Rana and others. -Vs.-
Bangladesh represented by the Secretary, Ministry of Science and
Information Technology, Bangladesh Secretariat and others. (Spl. Original)
2019 ALR (HCD) Online 8
....View Full Judgment
|
Dr. Muhammed Sohel Rana and others. -Vs.- Bangladesh represented by the Secretary, Ministry of Science and Information Technology, Bangladesh Secretariat and others |
2019 ALR (HCD) Online 8 |
|
‘Date of issuance of order’ of absorption of the project employees must
be taken as the date of regularisation. Dr. Muhammed Sohel Rana and others.
-Vs.- Bangladesh represented by the Secretary, Ministry of Science and
Information Technology, Bangladesh Secretariat and others. (Spl. Original)
2019 ALR (HCD) Online 8
....View Full Judgment
|
Dr. Muhammed Sohel Rana and others. -Vs.- Bangladesh represented by the Secretary, Ministry of Science and Information Technology, Bangladesh Secretariat and others |
2019 ALR (HCD) Online 8 |