Bangladesh Service Rules, Part I
Rule 300 read with
Article 27 and 31 of the Constitution:
By virtue of Rule 300(b), a privilege is being granted to those who take up another pensionable job subsequent to their resignation from service. Hence, the issue of discrimination is manifest in Rule 300(b). However, persons not taking up any pensionable job post resignation lose their pension forthwith by operation of Rule 300(a). In our view, this is discrimination and is, therefore, hit by Article 27 of the Constitution. Additionally, the immediate and automatic forfeiture of pension without issuing any notice or observing any legal procedure is also hit by Article 31 of the Constitution. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Although classification per se is permitted both by law and under the Constitution, it has to be reasonable. However, what is ‘reasonable’ has to be determined in the context of the society and should not be based on some hypothetical analysis, totally unconnected with the realities of life. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
The primary purpose of pension:
A pension is a quantified sum of money that is paid by the employer to the employee, upon the retirement of the employee, in consideration of the service rendered so as to enable the employee to defray the living expenses and to meet the basic necessities of life. The primary purpose of pension is to ensure that an employee, who has given the best part of his/her life in the service of the employer, has some means to fall back on during old age, when he/she is no longer able to work. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Employment, in our view, is a two way traffic. While the employer cannot be forced to retain an employee who is either inefficient, incompetent or even unruly and can therefore be terminated with proper notice or even be dismissed (in appropriate cases), at the same time, an employee has a similar right to tender his resignation from service. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Unless expressly excluded, the principle of natural justice shall apply in all cases:
We are mindful of the argument advanced by the learned DAG to the effect that as the forfeiture of the petitioner’s pension was on account of Rule 300(a) of BSR, the petitioner is now estopped from challenging the same. However, in contracts relating to service, there is a clause whereby employers can terminate the service of an employee upon giving due notice, although the employee is deemed to have been aware that his service could be terminated by the employer upon giving due notice. Can it be said that the employee is therefore estopped from challenging the termination order in a Court of law? There are a plethora of decisions to the effect that despite such a provision in a contract of employment, the concerned employee is entitled to be given a show cause notice before issuance of the termination order. This, no doubt, is in consonance with the well-settled principle of natural justice. By the same corollary, it can be said that although he concerned official is bound by the Service Rules, that cannot, ipso facto, negate the application of the principle of natural justice. It is now universally accepted and well-settled that unless expressly excluded, the principle of natural justice shall apply in all cases. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
In the case in hand, the forfeiture of the petitioner’s pension together with past service has very serious legal and practical ramification. It is an admitted position that the petitioner had served for long nineteen year in the Judicial service holding various positions and in doing so, he had invariably, at some point in time, exercised Sessions power. If, and as Rule 300(a) provides, his past service is forfeited, what would be its practical implication? Let me elaborate. The petitioner, while exercising Sessions power in a case under section 302 of the Penal Code, might have had, in all likelihood, imposed either capital punishment or a sentence of imprisonment for life. In either event, as a mandatory requirement, the appeal by the appellant would have travelled upto the Appellate Division of the Supreme Court, where it had either been allowed or dismissed by the Apex Court. In the event of an appeal involving capital punishment or imprisonment for life being dismissed, the judgment passed by the petitioner would stand affirmed. However, as in the present case, if the petitioners’ past service stands forfeited on account of his resignation from service, what would be the fate of such an appeal decided by the Apex Court? Would it stand annulled as well? If so, Rule 300 (a) of BSR would have the effect of nullifying a judgment upheld by the highest Court of the country. This would give rise to an absurd scenario. Can such a position be even conceived, far less accepted? The answer is an empathic no. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
It is now well settled that a ‘discriminatory act’ is also “arbitrary”. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
We reiterate that despite our extensive research, we could not come across a single law or rule, either in our jurisdiction or for that matter in any other jurisdiction, where resignation has been classified or defined as an offence or misconduct. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Doctrine of severability:
It is now well settled through judicial pronouncements that when any particular law or Rule is challenged as being ultravires the Constitution, if the offending part can be segregated from the rest of the section or rule, then the proper course of action is to strike down the offending part without striking down the entire section or rule. This is commonly referred to as the “doctrine of severability”. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
A person who tenders resignation from service, should also be entitled to receive pension, depending on the length of his/her service:
Although the maximum tenure of service required for being entitled to full pension is 25 years or more, depending on the person’s age at the time of entry into Government service, nevertheless, a sliding scale is provided for the person who retires before completing 25 years of service. By the same corollary, a person who resigns from service before reaching the age of superannuation should also be entitled to receive pension depending on the number of years of service rendered by such person. Although ‘retirement’ and ‘resignation’ are two distinct nomenclatures, in reality, they achieve the same purpose by bringing to an end the long standing, formal relationship between an employer and an employee ; in the former case, through operation of law and in the latter case, upon one’s own volition. On a similar note, a person who tenders resignation from service, should also be entitled to receive pension, depending on the length of his/her service. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7 ....View Full Judgment

Bangladesh Service Rules, Part I:
Rule 300(a)
Rule 300(a) of the Bangladesh Service Rules, Part I, so far as it only relates to “forfeiture of pension in the event of resignation from service” is declared to be ultravires the Constitution. However, the remaining part of Rule 300 (a) and Rule 300 (b) remains unaffected and valid. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7 ....View Full Judgment

Bangladesh Service Rules, Part I:
Rule 300
It is important to note that prior to dismissal from service, as a mandatory requirement of law, a person has to be given a show-cause notice, usually followed by a departmental enquiry. This is commonly known as ‘the due process’, whereby the person concerned is afforded an opportunity to explain his/her position. However, in the case of resignation from service, there is no such requirement. Merely upon tendering resignation from service, a person loses his right to pension forthwith. There is no provision for holding an enquiry, let alone issuance of any show cause notice to the person concerned, which is tantamount to non-compliance with the right to be treated in accordance with law. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7
Generally understood, resignation means cessation or discontinuation of a person’s service with the employer. The act of resignation is a unilateral act on the part of the employee, tendered in writing to the employer. It formally brings to an end the relationship between an employer and an employee. That being the universally accepted position, can resignation from service be deemed to be an offence or misdemeanor? Does any law or rule forbid an employee from resigning? Has any punishment been prescribed, either in our legal system, or for that matter, in any other legal system, for an employee who has resigned from service? In such context, how can a person who has tendered his resignation from service (for whatever reason) be visited with such a drastic form of punishment which deprives him of his hard earned pension to which he has become entitled by rendering service to the employer for a considerable period of time? Can such a rule be said to be in consonance with our Constitution? Obviously, the answer has to be in the negative. To hold otherwise would be contrary to the intent and spirit of our Constitution. …Md Mahboob Murshed Vs. Bangladesh & ors, (Civil), 16 SCOB [2022] HCD 7 ....View Full Judgment