Absorb the Revenue budget with continuity of service and other benefits–– Leave is granted grounds that the writ petitioners were appointed in the project which is ongoing project and as such, no cause of action has been arisen to file this writ petition, the High Court Division without considering the said facts and legal aspect erred in law in giving direction to absorb/regularize/ transfer the writ petitioners in the service of revenue budget. …Roads & Highways Department (RHD), Dhaka =VS= Abdul Motaleb(Md.), [7 LM (AD) 186] ....View Full Judgment

Absorption–– It has been stated in the petition that the project, in which, the writ petitioner-respondents have been serving is an ongoing project and their learned counsel failed to produce any maternal contrary to that submission and that they have been still receiving their salaries and other benefits from the said project, we are of the view that proper course would be to modify the order passed by this Division to the extent that the case of the writ petitioner-respondents regarding absorp-tion/regularization of their services in revenue set up may be considered by the writ respondent petitioners following the guidelines given in the case reported in 17 BLC (AD) 91 after completion of that ongoing project. With the observation made above, all these petitions are disposed of. …Bangladesh Rural Development Board =VS= Md Shahidul Islam, [7 LM (AD) 245] ....View Full Judgment

Absorbtion–– In the light of the decision of ECNEC dated 30.12.2007 and the provisions of SRO No. 182-Ain/2005/Shomo/Bidhi-1/S-9/2000 dated 20.06.2005 after completion of the project their service would be transferred to the revenue budget–– The petitioners had been given assurances that their services might be transferred/absorbed in the revenue budget. Since in similar circumstances the government has implemented the directions of the Supreme Court and absorbed the writ-petitioners in Writ Petition No.5667 of 2008, it would be discriminatory not to treat the present respondents equally. We do not find any illegality or infirmity in the impugned judgement, which calls for any interference. The appeal is dismissed. ...Government of Bangladesh =VS= Md. Saiful Islam, [6 LM (AD) 104] ....View Full Judgment

Absorption–– Recently these issues have been dealt with by this Division in Civil Appeal No.460 of 2017(Secretary V. Abdur Razzak and others) with the following observations:
“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 Livestock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Livestock 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.”
When the employees of the development projects or casual employees appointed as stop-gap arrangement have put in for considerable years of service in the posts and their works have been approved but they could not be regularized, the only provision provides for them is to qualify the requisite examination and in such circumstances, they would get relaxation of upper age limit. If they are not selected, at the end of the day, they would return home from their respective working place with empty hand.
Sympathy, empathy or sentiment by itself, cannot be a ground for passing an order where the litigants miserably fail to establish legal right. It is true that the respondents had been working for a long time, the same by itself would not be a ground for directing regularization of the service. This Court is of the view that the writ petitioners are not entitled for any relief as sought for. All the civil petitions are disposed of. Judgments and orders impugned are hereby set aside. …Bangladesh Rural Development Board =VS= Md. Rabeul Karim, [8 LM (AD) 339] ....View Full Judgment

Absorb the writ-petitioners in the regular setup and they will not get continuity in their service–– To absorb the writ-petitioners under the revenue budget with continuity of service, arrears and other benefits and obtained Rules Nisi. We are of the view that the direction of the High Court Division to absorb the writ-petitioners with continuity of their service was not proper. Therefore, we are inclined to direct the leave-petitioner to absorb/regularize the writ-petitioners in the regular setup of BRDB in the permanent posts as and when vacancy would arise subject to the condition that they are not otherwise disqualified. The service of the writ-petitioners will be governed as per the Service Rules of BRDB and they will not get continuity in their service when they will be absorbed in the revenue setup of BRDB. .....Bangladesh Rural Development Board =VS= Md. Saiful Islam, [5 LM (AD) 178] ....View Full Judgment

Absorbed in the revenue budget–– On perusal of the PP, we do not find any such statement or written assurance that after completion of the project the service of the writ petitioners would be absorbed in the revenue budget–– We also perused the materials on record wherefrom we did not find any written or express assurance on behalf of the appointing authority of the project to the writ petitioners that after completion of the project the service of the writ petitioners would be absorbed in the revenue budget.
Admittedly the writ petitioners joined in the service of the project in the months of August and September, 2004. It is also admitted that the project ended in June 2005. That is, they served only few months. They filed the instant writ petition in 2011. That is, after about 6 years of the completion of project. In such view of the matter, the High Court Division has committed error of law in directing to absorb the writ petitioners in Revenue budget upon making the Rule absolute in part.
The appeal is allowed without any order as to costs. The judgment and order of the High Court Division passed in Writ Petition No.2910 of 2011 is hereby set aside. ...Election Commission, Bangladesh =VS= Md. Golam Mostafa, [6 LM (AD) 131] ....View Full Judgment

Appointment– Legitimate right–– The High Court Division observed that the petitioners having been successful in their written and viva examinations were finally recommended for the post of Compressor Operator and Technician by the specially constituted committees comprising high officials of GTCL and as such the recommendation of the said committees could be termed as internal notes or internal communication of GTCL. The High Court Division observed “Though the recommendations or the fact of constitution of such committees were not officially communicated to the petitioners at any stage, it cannot be denied that, in a transparent appointment process by a government owned enterprise, such process of appointment cannot be kept secret terming the same as internal communication. Therefore, obliviously, the petitioners somehow got information about those recommendations of the committees.” The High Court Division went on to hold that the writ petitioners acquired a legitimate right in favour of their appointment in the GTCL and, therefore, declared the impugned notification cancelling the appointment process as without lawful authority. In view of the above, we are of the opinion that the High Court Division was not correct in finding that the writ petitioners had acquired a legitimate right to appointment in GTCL. Accordingly, the judgement and order of the High Court Division is hereby set aside. ...Gas Transmission Company Ltd., Dhaka =VS= Mohammad Abdul Aziz, [10 LM (AD) 292] ....View Full Judgment

Appointment as Assistant Revenue Officer–– It is open to the appointing authority to decide how many appointment should be made. The mere fact that a candidate’s name appears in the waiting list will not entitle him to be appointed. Only because a panel has been prepared by the PSC, the same by itself would not mean that the same should be given effect to irrespective of the fact that there was no such rule operating in the field. The empanelled candidates have not acquired any enforceable right since there is no statutory provision conferring a right upon them to claim appointment.
In the case of State of Hariyana V. Ajoy Walia reported in AIR 1997 SC 2007 there was a requisition from the Irrigation Department for filling up four vacancies but the Subordinate Selection Board prepared a list of 28 candidates and recommended them for appointment. The High Court allowed the writ petition and directed the State to appoint all the selected candidates. While setting aside the order of the High Court, the Supreme Court of India held that the Board had no jurisdiction to select 28 candidates against 4 vacancies.
We find substance in the appeal. Thus the appeal is allowed. The judgment and order passed by the High Court Division in set aside. All the civil petitions are disposed of in the light of observations and decision made in the appeal. ...Public Service Commission =VS= Ripon Chandra Shil, [6 LM (AD) 147] ....View Full Judgment

Appointment–– An employment notification was published for appointment in the post of Professor by the Bangabandhu Sheikh Mujib Medical University (the BSMMU). The employment notification, appointment of the writ petitioner, service of the petitioner as professor for about 7 years in the BSMMU and that after cancellation of his appointment, the repeated request of the BSMMU authority to take class in FCPS and MS (final) course in the BSMMU and from repeated inquiries and reports of the Inquiry Committees it appears to us that the turnabout of the BSMMU authority in flip-flopflipin stance has put the writ petitioner in a predicament which should be deprecated. Conclusion arrived at by the High Court Division does not calls for any interference. ...Bangabandhu Sheikh Mujib Medical University=VS=Dr. Zahidul Haq, [6 LM (AD) 215] ....View Full Judgment

Cancellation of appointment letter–– The authority is always at liberty to take action against any individual who either suppressed any material information and/or took recourse to fraud or forgery in obtaining the appointment. We are fully in agreement with such observation and would not wish to condone any fraudulent or illegal activity on the part of the writ petitioners in obtaining their appointment. However, the authority is bound to identify any wrong doing on the part of any individual and to seek his explanation before cancelling his appointment letter. .....Government of Bangladesh =VS= Md. Babul Howlader, [4 LM (AD) 213] ....View Full Judgment

Any opinion given by the Supreme Court regarding the terms and conditions of service of any judicial officer should be respected by the Executive–– The opinion of the Supreme Court regarding the terms and conditions of the service of the lower judicial officers would prevail–– Any opinion given by the Supreme Court regarding the terms and conditions of service of any judicial officer should be respected by the Executive and its opinion cannot be ignored. There cannot be any dual administration in the administration of justice and the same will not be healthy for the administration of justice. If the views taken by the High Court Division is accepted, there will be chaos and confusion in the administration of justice. If Appellate Division looks at the scheme of the constitution, there will be no doubt that the opinion of the Supreme Court regarding the terms and conditions of the service of the lower judicial officers would prevail. There is no doubt about it. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Any person in the service of Republic or any statutory authority cannot seek judicial review in respect of terms and conditions of service or action taken relating to him as a person to such service including transfer, promotion, and pension rights, except :––
a) in matters relating to challenging the vires of the law;
b) infringement of fundamental rights in which case also, there must be sufficient pleadings of such violation keeping in mind that such plea also can be taken in the tribunal because the constitution being the supreme law of the Country, it can be taken in aid by any Court/tribunal
2) The Administrative Tribunal shall be competent to deal with those matters and in appropriate cases of emergency; it can also pass interim order of injunction/stay subject to compliance of certain formalities.
3) The views taken in Mujibur Rahman 44 DLR (AD) 111 have been overruled.
4) If the action of the authority or order complained of in relation to the above matters are found to be coram non judice or without jurisdiction or is found malafide, judicial review is not available and the administrative tribunal can deal with these issues also. On this point, the decisions in Shaheda Khatun V. Administrative Appellate Tribunal, 3 BLC (AD) 155, Ehtesham Uddin V. Bangladesh, 33 DLR(AD) 154, Ismail Hoque V. Bangladesh, 34 DLR(AD) 125, Mostaque Ahmed V. Bangladesh, 34 DLR(AD)222 and Helal Uddin Ahmed V. Bangladesh, 45 DLR(AD)1 have also been overruled. .....Government of Bangladesh =VS= Sontosh Kumar Shaha, [4 LM (AD) 143] ....View Full Judgment

Applicability of Service Rules–– The petitioner got appointment in 1997, that is, long before the promulgation of the Service Rules of 2005. So he is entitled to get benefit of the Service Rules under which he got his appointment, that is, he is entitled to get the benefits as provided in Service Rules of 1988 and his service would be regulated under the said provision of law. .....Pachimanchol Gas Company Ltd =VS=Nuruzzaman & others, [1 LM (AD) 180] ....View Full Judgment

Creation of any new post–– The writ respondent had/has no authority to create any new post in his office. Creation of any new post in any Government office is absolutely under the domain of the Government–– When it is impossible to conduct an execution, since the object to be executed is unavailable, it must be considered as non executable judgment due to unavailability of object to execute and court cannot pass any order which cannot be executed.
The judgment and order passed by the High Court Division on 18.01.2009 in Writ Petition No.7455 of 2007 is unexecutable. We are of the view that the said judgment has been passed beyond the jurisdiction of the High Court Division. Thus the same is a nullity and it requires to be set aside. ...Government of Bangladesh =VS= Jannatul Ferdus, [10 LM (AD) 140] ....View Full Judgment

No work no pay–– They crossed the maximum age for joining government service. The guidelines of the decision reported in 17 BLC (AD) 91. The respondents are further directed to consider the case of the petitioners for appointment in permanent posts of the Republic subject to their having requisite qualifications by disregarding their age. .....Bangladesh =VS= Hassan Ahmed Khan, [3 LM (AD) 89] ....View Full Judgment

Once those vacancies are filled in there cannot be any expectation that the candidates who were successful in the examination would automatically be appointed in any future recruitment drive–– We do not find anything to suggest that any indication was given to the intending applicants that they would be included in a “Panel” or “Waiting List” and would be considered for recruitment in the future. The advertisement in response to which the petitioners applied was for a finite number of vacancies. Once those vacancies are filled in there cannot be any expectation that the candidates who were successful in the examination would automatically be appointed in any future recruitment drive. We do not find that any such assurance was given by the authorities.
The High Court Division observed that from the records it appeared that initially on 20.08.2015 the Bank's Board of Directors (BoD) at its 435th meeting decided to recruit in the post of ‘Senior Officer’, ‘Officer’ and ‘Officer (Cash)’ as per vacancies arising on 31.12.2014 according to rankings in a merit list. This led to communications back and forth between the Bank’s BOD and the Ministry of Finance seeking the latter's approval of appointments in the vacancies. Significantly, in its communication of 01.09.2015 to the Ministry, the Bank confirmed, inter alia, that the merit list itself had a validity period till 13.08.2015. Hence, the applicants, though successful, cannot remain in expectation of being appointed after that date. All the civil petitions for leave to appeal are dismissed. ...Shamimul Ahsan(Md.)=VS=Ministry of Finance, Bangladesh, [9 LM (AD) 68] ....View Full Judgment

Pay the back wages to the workers and salaries to the employees–– We wave the fine imposed by the High Court Division and direct the contemnors to pay a lump Sum amount of Tk.50,000/- each within seven days to the Secretary, Ministry of Labour. We direct the Secretary, Ministry of Labour to spend the said amount for the welfare of the workers of those tanneries. The tannery owners are also directed to pay the back wages to the workers and salaries to the employees, if any, remains outstanding till the date of closure of the tanneries within 1(one) month from the date receipt of this order. If they fail to pay their outstanding dues, the workers or employees have their right established in the High Court Division and the High Court Division in that case shall pass appropriate order. .....Chairman, Bangladesh Finished Leather, Leather goods and Footwear Exporters Association (BFLLFEA) =VS= Adv. Asaduzzaman Siddique, [5 LM (AD) 153] ....View Full Judgment

Promotion–– It appears from the impugned memo that it was issued from the Police Headquarters in the form of directives, of them, directive No.5 contains an embargo upon the promotion prospect in respect of those who have landed with three major punishments. In paragraph 6, it has been mentioned that the officers who have received less than three major punishments shall not be eligible for consideration for promotion before expiry of 3 years from the date of punishment. These are policy matters relating to the terms and conditions of service of a police officer and this power has not been given to the Inspector-General of Police by the Police Act or the Bengal Police Regulation or any other law. .....Bangladesh & others =VS= Md. Abdus Satter & others, [1 LM (AD) 378] ....View Full Judgment

Promotion–– The High Court Division has also directed to lift the curtain for enabling the writ petitioners to be considered for promotion. This cannot be done or declared by the court for, it is the police administration which shall consider as to whether or not under the prevailing laws the writ petitioners are eligible to be considered for promotion to the next higher post. .....Bangladesh & others =VS= Md. Abdus Satter & others, [1 LM (AD) 378] ....View Full Judgment

Promotion to the higher posts–– The High Court Division did not take into consideration that ‘the writ-petitioners would also be considered for promotion to the higher posts of Assistant Managers in accordance with DESCO’s Service Rules when new vacancy would be created’ and considering the fact that 67% of the vacant posts have already been filled up by way of direct recruitment on 27.12.2011, we are of the view that the remaining 33% posts of Assistant Managers should be kept reserved to be filled up by promotions from the writ petitioners in accordance with law as well as pursuant to Board’s decision dated 1.12.2001. As such the decision arrived at by the High Court Division being not based on proper appreciation of facts and law, calls for interference by this Division. The judgment and order complained of herein is set aside and these two civil appeals are therefore allowed with observations as made herein above. ..... Dhaka Electric Supply Company Limited =VS= Md. Tamijuddin, [5 LM (AD) 130] ....View Full Judgment

Promotion is not a matter of right–– It is clear that the petitioner took a chance of comparing himself with respondents No. 5 and 6 and as they have been given promotion with retrospective effect he should also be given the same, treating him at per with them and as such he should not have been deprived, as he has been, according to him, being of equal status. But the case is quite different. The petitioner being not in service and having not raised any such question any time during his tenure in the service, before his retirement, he cannot, under any circumstances, equate himself with respondents No. 5 and 6 and as such he cannot claim promotion and benefit after two and half years of his retirement on receipt of the full pension benefits without any objection on the basis of equating him with the said two respondents. His case can never be considered to be at per or of equal status with respondents No. 5 and 6. We are of the view that the Administrative Appellate Tribunal correctly appreciated the law and considered the facts of the case and came to a correct conclusion for which it is difficult to find any legal infirmity/flaw in the same and as such there is nothing to interfere with. This civil petition for leave to appeal is dismissed without any order as to cost. .....Mohammad Shafi Ullah =VS= Ministry of Disaster Management & Relief, [5 LM (AD) 148] ....View Full Judgment

Resignation letter did not by itself reach finality–– The letter sent by respondent No. 1 was a request for him to be released from service and was not accompanied by any deposit of three months' pay as required by Rule 54. Since the authority concerned advised the writ petitioner to take release by depositing the requisite pay and upon obtaining necessary clearance, clearly the resignation letter did not by itself reach finality. The High Court Division posed the question as to how the Samity could accept the writ petitioner's letter requesting his release as a resignation letter since the preconditions, such as depositing money and taking clearance had not been fulfilled. Noting this fact the High Court Division held that the application was not one for resignation and that it was not lawful for the Samity to issue the impugned memo treating the application as one for resignation.
We are of the opinion that the High Court Division did not commit any illegality in making the Rule absolute. We find no merit in the civil petition for leave to appeal, which is accordingly dismissed. ...Narayangonj Palli Bidyut Samity =VS= Md Abu Sayed Bhuiyan, [6 LM (AD) 55] ....View Full Judgment

Retirement age of Freedom Fighter– The Legislature did not provide the age limit of the Freedom Fighters to serve in the service of the Republic upto 61 years. Here, in this case, it appears from the operative portion of the impugned judgment that the High Court Division directed the writ respondents to enhance the retiring age of the writ petitioners till completion of their service till 61st year of their age.
In exercising the jurisdiction under article 102 of the Constitution the High Court Division cannot direct the Legislature to enact or amend particular law. The Legislature is supreme in its own sphere under the Constitution and it is solely for the Legislature to consider as to when and in respect of what subject matter, the laws are to be enacted. The High Court Division exceeded its jurisdiction assuming the power of Legislature, thereby, extending the retiring age limit of the Freedom Fighters, who have been serving in the service of the Republic. …Ministry of Law, Justice and Parliamentary Affairs, Bangladesh =VS=Shah Jamal Mollah, [7 LM (AD) 197] ....View Full Judgment

Service Rules do not provide any provision of promotion–– The Appellate Division held that since the service Rules do not provide any provision of promotion as Assistant Foreman from the driver who has been working as work charged employee, rather the Rules provides that the post of Assistant Foreman should be filled up by way of promotion from Mechanics/Electrician having 5 years service experience in the feeder post, the High Court Division has committed error of law in making the Rule absolute. .....Ministry of Communication & others =VS= Md.Iqbal Hossain, [1 LM (AD) 347] ....View Full Judgment

Temporary employee should not be replaced by another ad-hoc or temporary employee–– An adhoc or temporary employee should not be replaced by another ad-hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority. .....Dr. Khairun Nahar & others =VS= Prof. M. Iqbal Arslan & others, [1 LM (AD) 62] ....View Full Judgment

Terms and conditions of the service under Article 102(1) of the Constitution is not maintainable–– This Division has already settled that except challenging the vires of law or alleging violation of fundamental rights, judicial review of a decision of the authority relating to the terms and conditions of the service under Article 102(1) of the Constitution is not maintainable.
The writ-petitioner-respondents have come to a wrong forum and they may still approach appellants, that is, the bank authority by filing departmental appeal to get redress of their grievances in respect of gradation list. If they fail to get proper redress from the appellants, the writ-petitioner-respondents will be at liberty to go to the Administrative Tribunal, which can decide any question relating to the terms and conditions of the service of the writ-petitioner-respondents including the question of malafide in preparation of the gradation list.
This appeal is allowed with the observation made in the body of the judgment that the writ-petitioner-respondents are at liberty to go to the Administrative Tribunal to vindicate their grievances. The impugned judgment delivered by the High Court Division is set aside. .....Bangladesh Krishi Bank =VS= Arun Chandra Banik, [5 LM (AD) 344] ....View Full Judgment

Voluntary retirement–– Voluntary retirement scheme is a method used to reduce surplus staffs. Participation in the voluntary retirement plan is voluntary. It has to result in an overall reduction in the existing strength of employees. Accordingly, we are not inclined to accept the observation of the High Court Division that the respondents had been terminated in the grab of voluntary retirement. Moreover, the respondents have filed writ petitioners after about 8 years of the acceptance of their prayers and after receiving retirement benefits. .....BADC & others =VS= Md. Abdur Rashid & others, [1 LM (AD) 388] ....View Full Judgment

Voluntary retirement accepted by the BADC Authority their retirement became effective–– After 10 years of their voluntary retirement and after receiving full financial benefits as offered the prayers for reinstatement cannot be termed as reasonable and fair. After having applied for VRS and taken the money it is not open to them to contend that they exercised the option under any kind of coercion and undue influence. Who had accepted the ex gratia payment or any other benefit under the scheme, could not have resiled therefrom. It became past and closed transaction. The writ petitioners having accepted the benefit could not be permitted to approbate and reprobate nor they be permitted to resile from their earlier stand. Our considered opinion is that the writ petitionerrespondents were not entitled to get any relief as prayed for. The High Court Division committed error of law in directing to reinstate the writ petitioner-respondents to their former posts and to pay their back salaries. The judgment and order of the High Court Division are set aside. The Civil Petitions are disposed of in the light of the decision of the appeals. The review petitions are dismissed accordingly. ...BADC, Dhaka =VS= Shohidul Islam(Md.), [6 LM (AD) 234] ....View Full Judgment

Without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents–– It is patent from the records that all the respondents went through the rigorous process of selection and were appointed in their respective post. They were served with notices cancelling their appointment without issuing any show cause notice. The respondents joined their posts and served accordingly for more than nine months at the time of filing their writ petition. We are of the view that without issuing any show cause notice the petitioners could not lawfully cancel the letter of appointment of the respondents. .....Non-Government Teacher’s Regis-tration and Certification Authority (NTRCA) =VS= Lutfor Rahman, [4 LM (AD) 288] ....View Full Judgment

Service matter–– Considering the above facts and circumstances we find that the Administrative Tribunal did not commit any wrong in setting aside the punishment of removal from service imposed on the respondent No.1. The Administrative Appellate Tribunal also, therefore, did not commit any wrong in affirming the judgment and order of the Administrative Tribunal. .....Agrani Bank =VS= Md. Zakir Hossain & others, [1 LM (AD) 109] ....View Full Judgment

Service Matter–– It is not permissible to take disciplinary action against a person solely on the basis of adverse remarks made by a Tribunal in a criminal case unless the allegations imputed in the adverse remarks are proved in disciplinary proceeding. .....Bangladesh =VS= S.M. Raiz Uddin Ahmed, [1 LM (AD) 260] ....View Full Judgment

Appointing– Service with retrospective effect–
The High Court Division also directed the writ respondents to take the viva-voce examination of the writ petitioner. The writ respondents were also directed to take steps for publishing the result and take necessary steps for appointing the writ petitioner in service with retrospective effect if she is passed in Viva-Voce examination. The writ petitioner shall be entitled to receive the salary and benefits from the date of her actual joining in service of her appointment. However, her continuity in service and seniority shall be treated on and from the date on which the successful candidates of the 23rd BCS (Special) Examination, 2000 were first appointed in Government service. ...Public Service Commission =VS= Dr. Sumana Sarker, (Civil), 2021(2) [11 LM (AD) 121] ....View Full Judgment

Service benefit calculation–
The service period for retirement benefit of the appellant is counted as 13 years 5 months 25 days and for this he is entitled to get pension benefit of 42% of his pension.
The appellant claimed that by the notification under Memo No. সম/জেএ ১-২১৩/৮৭-৯১ dated 1-3-1988, the date of joining in service of all those officers of the BCS (Administration) Cadre of 1982 special batch was notionally counted from 3-4-1983. His service duration, if it is counted from 3-4-1983, would be 13 years 10 months and 22 days, which by virtue of the service rules would be counted as 14 years of service, and would therefore entitle him to a pension based on 45% of his last salary.
Payment of pension is a financial benefit paid to the employee, the calculation of which is based upon his salary. His benefit will be calculated on the period that he has actually worked and for which he received a salary. He did not work during the period of notional service nor received any salary for that period. Hence, he will not be entitled to any pension for that period. The applicable law has specifically excluded that period of notional service for the purpose of calculating pension benefit. ...Shahjahan Biswas (Md) =VS= Government of Bangladesh, (Civil), 2021(2) [11 LM (AD) 624] ....View Full Judgment

Service matter––
Inquiry/investigation reports were also not provided. The proceedings leading to the issuance of the impugned order was grossly unfair–– The period out of service of the writ petitioner should be treated as leave without pay–– Appellate Division is inclined to take the view that the process through which the petitioner was dismissed is questionable. The impugned order was issued following an ‘unprecedented procedure’. Service of repeated show cause notices within such span is unheard of. Moreover, inquiry/investigation reports were also not provided. The proceedings leading to the issuance of the impugned order was grossly unfair. The respondents, in Appellate Division’s view, have abused their powers. This Division is therefore inclined to hold that the entire proceedings initiated are vitiated by unfairness. This Division is inclined to modify the impugned judgment and order of the High Court Division to the extent that the period out of service of the writ petitioner should be treated as leave without pay. .....Rural Electrification Board, Dhaka =VS= S.M. Sanoar Hossain, (Civil), 2023(1) [14 LM (AD) 226] ....View Full Judgment

Circular got the force of law—
The circular issued by the Ministry of Establishment vide No.n: j:/Bl-1/Hp-16 91/09(250) dated 11.01.1992 and this circular has got the force of law (see the case of Bangladesh, represented by the Secretary, Ministry of Establishment-Vs-Shafiuddin Ahmed and 2 others, 50 DLR(AD)(1998) 27). So, Appellate Division finds nothing wrong in bridging the gap of the service of Khademul Islam for the period from 28.03.1994 and 09.10.1994, but the High Court Division totally failed to consider the said circular of the Ministry of Establishment and thus erred in law in holding that bridging the gap of service of Khademul Islam was done illegally. .....Khademul Islam(Md.) =VS= Mohammad Ali, (Civil), 2023(1) [14 LM (AD) 7] ....View Full Judgment

The writ petitioners-respondents have no legal and vested right to be appointed as of right in the posts as has been sought by them on the plea that they had earlier participated in the written examination and viva voice for the similar posts. It is pertinent to mention here that in 2003 advertisement was made for appointment of 07(seven) Uninani Medical Officer, 06(six) Ayurvedic Medical Officer and 07(seven) Homeopathic Medial Officer i.e., in total for 20 posts. But now 35+06=41 persons by filing two separate writ petitions are seeking jobs in the newly created posts on the plea that they had participated in the selection process pursuant to the above advertisement though they were not finally selected and the High Court Division allowed the prayer of them. This kind of relief is beyond the scope of law and also ridiculous. It has to be borne in mind that the function or duty of a Court is not to do charity; rather it has to act in accordance with law to ensure justice. Appellate Division finds merit in the leave petitions and thus, the impugned judgments and orders passed by the High Court Division are set aside. .....Directorate General of Health and Service, Mohakhali =VS= Dr. Md. Tajul Islam, (Civil), 2022(1) [12 LM (AD) 276] ....View Full Judgment