IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

                       Mr. Justice Syed Mahmud Hossain,

                                  Chief Justice

             Mr. Justice Muhammad Imman Ali

             Mr. Justice Hasan Foez Siddique    

Mr. Justice Mirza Hussain Haider Ms. Justice Zinat Ara

Mr. Justice Abu Bakar Siddiquee

Mr. Justice Md. Nuruzzaman    

CIVIL  APPEAL  NOS.48-54  OF  2017  WITH  C.R.P  NO.325  OF  2017  AND  CIVIL PETITION FOR LEAVE TO APPEAL NO.1882 OF 2018 WITH CONTEMPT PETITION NO.15 OF 2016 WITH C.R.P.NO.611 OF 2018 & C.R.P.NO.31 OF 2013.

(From the judgment and order dated 02.02.2012 and 30.07.2012 passed by the High Court Division in Writ Petition Nos.1539,4298,4299,4519,4521 and 2343 of 2009 with W. P. No.8911 of  2012,  judgment  and  or  dated 12.01.2016  passed  by  the  Appellate  Division  in C.A.No.181/07,  judgment  and  order  dated  31.10.2017  passed  by  High  Court  Division  in W.P.No.6069/2014, judgment and order dated 19.04.2012 passed by the Appellate Division in C.A.No.12 of 2006)

Secretary,  Ministry  of  Agriculture,  Appellants. Bangladesh Secretariat Dhaka and others:  (In C.A.No.48-54/17)

Mohammad Hasan and others             :  Petitioners.

(In C.R.P.No.325/17)

The  Managing  Director,  Gas  Transmission   Petitioners. Company Ltd. Dhaka                    :  (In C.P.No.1882/18)

Abul Hashem and others                :   Petitioners.

(In Cont.P.No.15/16) Bangladesh,  represented  by  the  Secretary,   Petitioners. Ministry  of  Industry,  Govt.  of  Bangladesh  (In C.R.P.No.611/18)

and another             :

The  Chairman  Bangladesh  Sugar  and  Food  Petitioners. Industries Corporation, Dhaka         :  (In C.R.P.No.31/18)

=Versus=

Kh. Mosaddeq Hossain and others       :  Respondents.

(In C.A.No.48/17)

Md. Islam Uddin Mondal and others     :  Respondents.

(In C.A.No.49/17) Dr. Abdul Awal and others             :  Respondents.

(In C.A.No.50/17) Dr. M.A. Jabbar and others            :  Respondents.

(In C.A.No.51/17) Dr. M. Anwarul Quader Sheik and others :  Respondents.

(In C.A.No.52/17) M.M. Anwarul Islam and others         :  Respondents.

(In C.A.No.53/17) Md. Mozammel Haque and others         :  Respondents.

(In C.A.No.54/17)

Bangladesh,  represented  by  the  Secretary,  Respondents. Ministry  of  Local  Govt.  and  Rural  (In C.R.P.No.325/17) Development  (LGRD)  and  Co-operative,  Dhaka

and others           :

Md. Mahbubur Rahman and another       :  Respondents.

(In C.P.No.1882/18)

Md. Mosharraf Hossain Bhuiyan & others :  Respondents.

(In Cont.P.No.15/16)

Obaidul Islam Chowdhury and others    :  Respondents. (In C.R.P.No.611/18)

Obaidul Islam Chowdhury and others    :  Respondents.

(In C.R.P.No.31/13)

For the Appellant    : (In C.A.Nos.48-54/17)

For the Petitioner     : (In C.R.P.No.325/17)

For the Petitioner     : (In C.P.No.1882/18)

For the Petitioner     : (In Cont.P.No.15/16)

For the Petitioner     : (In C.R.P.No.611/18)

For the Petitioner      : (In C.R.P.No.31/13)

For the Respondents     : (In C.A.Nos.48-54/17)

For the Respondents     : (In C.R.P.No.325/17)

For the Respondents     : (In C.P.No.1882/18)

For Respondent Nos.1,3 & 6: (In Cont.P.No.15/16)

For Respondent No.2     : (In Cont.P.No.15/16)

For Respondent No.5     :

(In Cont.P.No.15/16)

Respondent No.4         :

(In Cont.P.No.15/16)

For the Respondents     : (In C.R.P.No.611/18)

For the Respondents     :

 (In C.R.P.No.31/13)

Mr.  Murad  Reza,  Additional Attorney  General  with  Mr.  Sk. Shaifuzzaman,  Deputy  Attorney General  &  Mr.  Irin  Jahan, Assistant  Attorney  General, instructed  by  Mr.  Haridas  Paul, Advocate-on-Record.

Mr.  Rokanuddin  Mahmud,  Senior Advocate  (with  Mr.  Tanjib-ul- Alam,  Advocate),  instructed  by Mr. Md. Helal Amin, Advocate-on- Record.

Mr.  Murad  Reza,  Additional Attorney  General,  instructed  by Mr. Md. Helal Amin, Advocate-on- Record.

Mr.  A.F.M.  Meshbahuddin,  Senior Advocate,  instructed  by  Mr. Md.Abdul  Hye  Bhuiyan,  Advocate- on-Record.

Mr.  Murad  Reza,  Additional Attorney  General  with  Mr.  Sk. Shaifuzzaman,  Deputy  Attorney General  &  Ms.  Irin  Jahan, Assistant  Attorney  General, instructed  by  Mr.  Haridas  Paul, Advocate-on-Record.

Mr.  Mahbubey  Alam,  Senior Advocate  instructed  by  Mr.  Md. Zahirul  Islam,  Advocate-on- Record.

Mr.  Rokanuddin  Mahmud,  Senior Advocate,  instructed  by  Mr.  Md. Helal Amin, Advocate-on-Record. Not represented.

Mr.  Tanjib-ul-Alam,  Advocate, instructed  by  Mr.  Syed  Mahbubar Rahman, Advocate-on-Record.

Mr.  A.F.M.  Meshbahuddin,  Senior Advocate,  instructed  by  Mr.  M. Asrafuzzaman  Khan,  Advocate-on- Record.

Mr.  A.F.M.  Meshbahuddin,  Senior Advocate,  instructed  by  Mr. Zainul  Abedin,  Advocate-on- Record.

Mr.  A.F.M.  Meshbahuddin,  Senior Advocate,  instructed  by  Mrs. Madhumaloti  Chowdhury  Barua, Advocate-on-Record.

Not represented.

Mr.  A.F.M.  Meshbahuddin,  Senior Advocate,  instructed  by  Mr.  Md. Abdul  Hye  Bhuiyan,  Advocate-on- Record.

Mr.  A.F.M.  Meshbahuddin,  Senior Advocate,  instructed  by  Mr.  Md. Abdul  Hye  Bhuiyan,  Advocate-on- Record.

Date of hearing on    : 06.02.2019,16.04.2019 & 17.04.2019. Date of judgment on : 02.05.2019.

J U D G M E N T

Hasan  Foez  Siddique,  J:  Delay  in  filing  Civil Review Petitions No.31 of 2013 and 611 of 2018 and Civil  Petitions  for  Leave  to  Appeal  No.2581  of 2016 and 1882 of 2018 is condoned.

All  these  Civil  Appeals,  Civil  Petition  for leave  to  appeal  and  Civil  Review  Petitions  have been  heard  together.  Since  the  points  for determination of all the matters are identical we have heard all the matters together and these are being disposed of by this common judgment.

The respondents Khandaker Mosaddeq Hossain and others  in  Civil  Appeal  No.48  of  2017  filed  Writ Petition  No.1539  of  2009  against  the  Bangladesh Agricultural  Development  Corporation  (the  BADC) and others in the High Court Division and obtained Rule  challenging  the  orders  bearing  No.K…wl-3/‡R- 22/2001/449 dated 26.06.2002 (hereinafter referred to as order dated 26.02.2002) and m¥viK bs-weGwWwm/wnmve/mg/2001- 02/04(30) dated 03.07.2002(hereinafter referred to as letter dated 03.07.2002) to recover excess amount so  paid  as  gratuity  pursuant  to  notification No.Ag/Awe(ev¯Z-1)/wewea-5/95/230 dated  19.11.1995  issued  by the  Ministry  of  Finance  (hereinafter  referred  to

letter dated 19.11.1995).

The respondents Md. Islam Uddin Mondal and others in Civil Appeal No.49 of 2017 filed Writ Petition No.4298 of 2009 against the Bangladesh Agricultural Development Corporation (the BADC) and others challenging the aforesaid letters dated 26.06.2002 and 08.07.2002 and obtained Rule.

The respondents Dr. Abdul Awal and others in Civil Appeal No.50 of 2017 filed Writ Petition No.4299 of 2009 against the Bangladesh Sugarcane Research Institute (the BSRI) and others challenging the aforesaid identical letters dated 26.06.2002 and also the letters dated 15.09.2007 and 04.11.2007 and obtained Rule.

The respondents Dr. M.A. Jabbar and others in Civil Appeal No.51 of 2017 filed Writ Petition No.4519 of 2009 against the Bangladesh Sugarcane Research Institute (the BSRI) and others challenging the aforesaid two letters dated 26.06.2002 and 15.09.2002 and obtained Rule.

The respondents Dr. M. Anwarul Quader Shaikh and others in Civil Appeal No.52 of 2017 filed Writ Petition No.4521 of 2009 against the Bangladesh Institute of Nuclear Agriculture (the BINA) and others challenging the aforesaid identical letters dated 26.06.2002 and 15.09.2002 and obtained Rule.

The respondents M.M. Anwarul Islam and others in Civil Appeal No.53 of 2017 filed Writ Petition No.2343 of 2009 against the Bangladesh Jute Research Institute (the BJRI)and others for implementation of the letter dated 19.11.1995 issued by the Ministry of Finance and some other letters and obtained Rule.

All those writ petitions were heard analogously by a Division Bench of the High Court Division comprising Farah Mahbub and Abdur Rob J.J., who by a common judgment and order, dated 02.02.2012 made all those Rules absolute and declared the letter dated 26.06.2002 to have been passed without lawful authority. In the said judgment, the concerned writ respondents were also directed to implement office order dated 19.11.1995 in respect of the writ petitioners of all those writ petitions. Against the aforesaid judgment and order, the writ respondents of the respective writ petitions preferred above mentioned Civil Appeals.

In Civil Appeal No.54 of 2017 respondents Md. Mozammel Hoque and others filed Writ Petition No.8911 of 2012 against the Bangladesh Agricultural Development Corporation (the BADC) and others in the High Court Division challenging

the letters dated 26.06.2002 and 15.09.2002 and obtained Rule. The High Court Division comprising Mamnoon Rahman and Abu Zafor Siddique, J.J., by a judgment and order dated 30.07.2012, made the said Rule absolute and directed the writ respondents to pay the outstanding retirement benefits as per notification dated 19.11.1995.

Facts of the Civil Review Petition Nos.31 of 2013 and Civil Review Petition No.611 of 2018, in short, are that the review respondents Obaidul Islam Chowdhury and others filed Writ Petition No.3502 of 2001 in the High Court Division against the Bangladesh Sugar and Food Industries Corporation and others challenging letters issued by the Corporation refusing to pay gratuity to the writ petitioners as per direction of the Government order dated 19.11.1995 and also prayed for a direction upon the writ respondents to calculate payment of gratuity to the writ petitioners as per direction of the Ministry of Finance and obtained Rule. A Division Bench of the High Court Division comprising Md. Hamidul Haque and Salma Masud Chowdhury, J.J., by a judgment and order dated 07.11.2002, discharged the said Rule. Against the said judgment and order, the writ petitioners preferred Civil Appeal No.12 of 2006

in this Division and 7(seven) member bench of this Division, by a judgment and order dated 19.04.2012, allowed the said appeal (judgment was delivered by Surendra Kumar Sinha, J. as his lordship then was). Against the said judgment and order dated 19.04.2012 passed by this Division, the Chairman, Bangladesh Sugar and Food Industries Corporation, filed Civil Review Petition No.31 of 2013 and the Government filed Civil Review Petition No.611 of 2018 in this Division.

That is, in these two Review Petitions the issue is whether the judgment delivered in Civil Appeal No.12 of 2006 by the 7 member bench of this Division is to be reviewed or not.

Facts of Civil Petition for Leave to Appeal No.2581 of 2016, in short, are that the respondents A.K.M Shahiduddin and others filed Writ Petition No.3495 of 2010 against the Bangladesh Shipping Corporation (the BSC) and others for a direction for implementation of the office order dated 19.11.1995 and obtained Rule. A Division Bench of the High Court Division comprising Gobinda Chandra Tagore and S.M. Mozibur Rahman, J.J., by a judgment and order dated 02.03.2016, made the said Rule absolute with a direction upon the writ respondents to implement

the circular dated 19.11.1995 and to pay the writ petitioners’ gratuity. Against which, the Bangladesh Shipping Corporation has filed the instant civil petition for leave to appeal.

The facts of Civil Petition for Leave to Appeal No.1882 of 2018, in short, are that the respondents Md. Mahbubur Rahman and others filed Writ Petition No.6069 of 2014 against the Bangladesh Gas Transmission Company Ltd. which is a Company of Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) for a direction upon the writ respondents to pay gratuity as outstanding dues to the writ petitioners which they are entitled as per office order dated 19.11.1995 and obtained Rule. A Division Bench of the High Court Division comprising Gobinda Chandra Tagore and A.K.M. Shahidul Huq, J.J., by a judgment and order dated 31.10.2017, made the said Rule absolute directing the writ respondents to pay the gratuity to the writ petitioners under the pension scheme. Against which, the Managing Director, Gas Transmission Company Limited, has filed the aforesaid Civil Petition for leave to appeal.

Facts of Civil Review Petition No.325  of 2017, in short, are that the respondents Amanullah and others filed Writ Petition No.2877 of 1999

against Dhaka City Corporation and others challenging the letter dated 02.09.1997 issued by the writ respondent No.3 stopping payment of gratuity to the writ petitioners in view of the letter of communication dated 28.10.1998. According to the writ petitioners, they are entitled to get gratuity in view of the office order dated 19.11.1995. A Division Bench of the High Court Division comprising Syed J.R. Mudassir Hussain and Md. Arayesuddin, J.J., by a judgment and order dated 12.06.2000, made the said Rule absolute directing the writ respondents to implement the decision issued in office order dated 19.11.1995. Against the said judgment and order dated 12.06.2000 passed in Writ Petition No.2877 of 1999, the Government represented by the Secretary Ministry of Local Government and Rural Development  and Co-operatives (Local Govt. Division) preferred Civil Appeal No.181 of 2007 in this Division and this Division, by a judgment and order dated 12.01.2016, allowed the appeal upon setting aside the judgment and order of the High Court Division.

Against the said judgment and order dated 12.01.2016  passed by this  Division in Civil Appeal No.181 of 2007 the writ petitioner- respondents have filed Civil Review Petition No.325 of 2017.

Facts of the Contempt Petition No.15 of 2016, in short, are that the Government and others failed to implement the judgment and order dated 19.04.2012 passed in Civil Appeal No.12 of 2006. Accordingly, the writ petitioner-respondents of the said appeal have filed the instant contempt petition bringing allegations of non- implementation of the judgment and order passed in said Civil Appeal against writ respondent- contemners.

From the facts of all the cases, it appears to us that the leading point for adjudication in all the cases is, whether the officers and employees of the different semi-Government Organizations, autonomous bodies, Corporations, nationalised banks and financial institutions are entitled to get gratuity in the manner of pension scheme as provided for retired Government officers and employees in view of the Government circular dated 19.11.1995 or not.

Mr. Murad Reza, learned Additional Attorney General appeared on behalf of the appellants in Civil Appeal Nos.48-54 of 2017, for the petitioners in Civil Petition for leave to appeal

No.1882 of 2018 and for the petitioner in Civil Review Petition No.611 of 2018. Mr. Mahbubey Alam, learned Senior Counsel appeared for the petitioner in Civil Review Petition No.31 of 2013, Mr. A.F.M. Mesbahuddin, learned Senior Counsel appeared for the petitioner in Contempt Petition No.15 of 2016, Mr. Rokanuddin Mahmud, learned Senior Counsel appeared for the petitioners in Civil Review Petition No.325 of 2017. He also appeared for the respondents in Civil Appeal Nos.48-54 of 2017. Mr. Tanjib-ul Alam, learned Counsel appeared for the respondents in Civil Petition for leave to Appeal No.1882 of 2018 and Mr. A.F.M. Meshbahuddin Ahmed, learned Senior Counsel also appeared for the respondents in Civil Review Petition No.611 of 2018 and Civil Review Petition No.31 of 2013.

In fact, the result of the Review Petition Nos.31 of 2013 and 611 of 2018 filed against the judgment and order dated 19.04.2012 passed in Civil Appeal No.12 of 2006 has got material bearings upon all other cases. So, we shall take up those two Review Petitions first for consideration and decision.

The judgment and order dated 19.04.2012 passed in Civil Appeal No.12 of 2006 was delivered by 7(seven) members bench of this Division and the

judgment of the said appeal is binding upon the High Court Division as well as the parties concerned until this Division reviewed and set aside the said judgment and order.

In an elaborate judgment the 7 member bench of this Division, in Civil Appeal No.12 of 2006, allowed the appeal observing that the officers and employees of the Corporations and other semi Government Organizations are also entitled to get gratuity benefits alike other Government employees, since different provisions dealing with the matter in this regard are discriminatory.

Mr. Murad Reza, learned Additional Attorney General and Mr. Mahbubey Alam, learned Senior Counsel appeared on behalf of the Government and different Corporations in their respective submissions stated that in Civil Appeal No.12 of 2006 this Division, on the one hand, held that the office order dated 19.11.1995 has no force of law and that the writ petitioners could not claim the gratuity pursuant to the office order dated 19.11.1995 as of right, on other hand, allowed the appeal holding that the employees of different corporations have been discriminated since they have been performing similar functions as those of

the other Government employees which is an error of law apparent on the face of the record.

Mr. Rokanuddin Mahmud, learned Senior Counsel appearing for the petitioners in Civil Review Petition No.325 of 2017 in his submission stated that 4(four) member bench of this Division in Civil Appeal No.181 of 2017 has committed an error of law in allowing the appeal holding that the employees of the City Corporation are entitled to get gratuity following their own laws without taking into consideration of the judgment and order passed in Civil Appeal No.12 of 2006 delivered by the 7(seven) member bench of this Division. Mr. Mahmud and other learned Counsel, appearing for the respondents in the appeals, submit that the gratuity schemes of different Corporations are discriminatory to those of the provisions of pension scheme provided for other Government servants and this Division, after proper consideration and appreciation of the relevant laws and facts, rightly observed so in Civil Appeal No.12 of 2006.

Before discussing the merit of the Civil Appeals and Review Petitions let us peruse the contents of the relevant office orders. First office order was the order dated 19.11.1995, by

virtue of which, all the officers and employees of the semi Government Organizations, autonomous bodies and Corporations claimed their gratuity benefits similar to the provisions of pension scheme provided for other Government officers and employees.

The contents of the said office order dated 19.11.1995 run as follows:

ÒMYcªRvZš¿x evsjv‡`k miKvi

A_© gš¿Yvjq, A_© wefvM

ev¯ eÍ vqb I cªwewa AbywefvM

ev¯ eÍ vqb kvLv-9

¯^viK bs- Ag/Awe (ev¯Í-1)/ wewea-5/95/230      ZvwiLt 19/11/95Bs

welqt Avav miKvix /¯^vqZ¡ kvwmZ ms¯’v/ivóvqZ¡ e¨vsK I A_©jMœx cªwZôvb mg~‡ni Kg©KZ©v/ Kg©Pvix‡`i Avby‡ZvwlK (MªvPzBwU) wba©viY cªms‡M|

Dc‡iv³ wel‡q miKvi GB g‡g© wm×všÍ Mªnb Kwiqv‡Qb †h, †h mg¯Í ms¯nvq †cbkb

cª_vi cwie‡Z© Avby‡ZvwlK  (Mª¨vPy¨BwU) cª_v Pvjy iwnqv‡Q,  †mB mg¯Í ms¯nvq Kg©iZ Kg©KZ©v/Kg©Pvix‡`i, miKvix Kg©KZ©v/ Kg©Pvix‡`i †cbkb cª`v‡bi †¶‡Î †hfv‡e †eZb wba©viY Kiv nq, Avby‡ZvwlK (Mª¨vPz¨BwU) cª`v‡bi †¶‡Î H GKB wbqg cª hvR¨ nB‡e|

2| hvnviv 01-01-1995 I 01-07-1995Bs ZvwiL mg~‡n Aemi cª¯ ywÍ Zg~jK QywU‡Z Av‡Qb, Zvnviv H ZvwiL mg~‡n 10% †eZb e„w×i myweavmn Avby‡ZvwlK (Mª¨vPz¨BwU) cªvc¨ nB‡eb|

    ¯^vt

 (‡gvt dvizK wkK`vi) wmwbqi mnKvix mwPeÓ

(Bold and underlined by us)

From close reading of the office order dated 19.11.1995 it appears that subject matter of the same is in respect of calculation of the gratuity of the officers/employees of the semi government organizations/autonomous bodies/nationalized banks and financial institutions. From the contents of the said office order it further appears that the Government had taken decision that the procedure followed for fixation of salary for the purpose of payment of pension of the Government officers/employees should also be followed for the purpose of fixation of salary for payment of gratuity  of the officers and employees of the autonomous bodies, semi Government organizations, corporations, nationalized banks and other financial institutions who have been realizing gratuity instead of pension. In the said office order, it has not been stated that the officers and employees of semi-government/autonomous bodies/nationalized banks and financial institutions shall get their gratuity following the provisions of pension scheme adopted for the government officials. The said office order was issued only for fixation of salary for the purpose of paying gratuity. Thereafter, the Ministry of Finance on 15.09.2002 issued another office order

to clarify its earlier office order dated 19.11.1995.

The contents of which run as follows:

 ÒMYcªRvZš¿x evsjv‡`k miKvi

  A_© gš¿Yvjq, A_© wefvM

ev¯ eÍ vqb I cwi`k©b AbywefvM

    ev¯ eÍ vqb kvLv-1

bs- Ag/Awe (ev¯Í-1)/ wewea-5/95/138     ZvwiLt15/09/2002

welqt Avav miKvix /¯^vqZ¡ kvwmZ ms¯’v/ivóvqZ¡ e¨vsK I A_©jMœx cªwZôvb mg~‡ni Kg©KZ©v/ Kg©Pvix‡`i ‡eZb e„w×i myweav cª`vb cªms‡M|

m~Ît- Ag/Awe (ev¯Í-1)/ wewea-5/230, Zvs 19/11/95   

wb‡`©kµ‡g Rvbv‡bv hvB‡Z‡Q †h, KwZcq Avav miKvix /¯ v^qZ¡kvwmZ ms¯’v/ivóvqZ¡ e¨vsK I A_©jMœx cªwZôvb mg~‡ni Aemicªvß Kg©KZ©v I Kg©Pvix‡`i‡K A_© wefv‡Mi 19/11/95 Zvwi‡Li Ag/Awe (ev¯Í-1)/ wewea-5/230 bs Av‡`‡ki fzj e¨vL¨v

Kwiqv wbR wbR ms¯nv/cªwZôv‡bi wewa, weavb I c×wZ AbymiY bv Kwiqv Aemicªvß

miKvix Kg©KZ©v/Kg©Pvix‡`i †¶‡Î cª‡hvR¨ nv‡i I c×wZ‡Z Avby‡ZvwlK (Mª¨vPzBwU) cª`vb Kiv nB‡Z‡Q ewjqv A_© wefv‡Mi †MvPixf~Z nBqv‡Q hvnv Pig Avw_©K Awbqg|

2| †cbkb/Mª¨vPzBwU(†hB †¶‡Î hvnv cª‡hvR¨) wba©vi‡Yi c~e© kZ© nB‡Z‡Q AvnwiZ †kl †eZb wba©viY| A_© wefv‡Mi ewY©Z Av‡`‡ki ggv_© wQj Ô31/12/97 Zvwi‡Li †eZ‡bi Dci wfwË Kwiqv 10% †eZb e„w×i myweav Õ wel‡q ewY©Z ms¯nv/cªwZôvb mg~‡ni 1/1/95 I 1/7/95 Zvwi‡Li Aemi cª¯ZzwZg~jK QywU‡Z _vKv Kg©KZ©v/Kg©Pvixi †¶‡ÎI cª‡hvR¨ nB‡e| D³ Av‡`k †Kvbfv‡eB ms¯nvi Mª¨vPzBwU wba©vi‡Yi we`¨gvb c×wZ cwieZ©b Kwiqv miKvix Kg©KZ©v/Kg©Pvix‡`i †¶‡Î cª‡hvR¨ c×wZ‡Z Avby‡ZvwlK cª`v‡bi K_v ejv nq bvB|

3| Avav miKvix /¯^vqZ¡kvwmZ ms¯’v/ivóvqZ¡ e¨vsK I A_©jMœx cªwZôvb mg~‡ni Kg©KZ©v/Kg©Pvix‡`i 10% †eZb e„w× cª`vb cªms‡M A_© wefv‡Mi 19/1/1995Bs Zvwi‡L RvixK„Z Ag/Awe (ev¯Í-1)/‡eZb e„w×-1/95/09bs ¯gvi‡Ki †cªw¶‡Z Ò†h mKj Kg©KZ©v /Kg©Pvix 1/1/95 I 1/7/95 Zvwi‡L Aemi cª¯ZzwZg~jK QywU‡Z _vwK‡eb Zvnviv Dc‡iv³ †eZb e„w×i myweav Avby‡ZvwlK wba©vi‡Yi †¶‡Î cªvc¨ nB‡eb wKbvÓ G g‡g© KwZcq ms¯nv KZ©„K A_© wefv‡Mi gZvgZ PvIqv nB‡j A_© wefv‡Mi 19/11/95 Zvwi‡Li Ag/Awe (ev¯Í-1)/ wewea-5/95/230 bs Awdm Av‡`kwU Rvix Kiv nBqvwQj|

Avav miKvix /¯^vqZ¡kvwmZ ms¯’v/ivóvqZ¡ e¨vsK I A_©jMœx cªwZôvb mg~‡ni Kg©KZ©v/Kg©PvixMY wbR wbR ms¯nv/cªwZôv‡bi wewa, weavb I c×wZ Abyhvqx Avby‡ZvwlK (Mª¨vPzBwU) cªvc¨ nB‡eb|

      ¯^vt

 (Ave`yj evix)

wmwbqi mnKvix mwPeÓ                                   

      (Bold and underlined by us)

Some Officials of the semi-government organizations, autonomous bodies etc. misconstrued and misinterpreted the office order dated 19.11.1995 issued by the Ministry of Finance, which resulted in the ensuing litigations and harassment of the parties. Subsequent office order dated 15.09.2002 was issued only to simplify the language and to make the office order dated 19.11.1995 more clear. However, in our earlier judgments, we have also failed to interpret and construe the exact spirit of the contents of the office order dated 19.11.1995 and intention of its makers, consequently, one after another litigations have cropped up.

The Ministry of Finance issued another circular on 03.10.2002 to clarify its position again. The contents of which run as follows:

  ÒMYcªRvZš¿x evsjv‡`k miKvi    A_© gš¿Yvjq, A_© wefvM

   ev¯ eÍ vqb I cwi`k©b AbywefvM    ev¯ eÍ vqb kvLv-1

bs- Ag/Awe (ev¯Í-1)/ wewea-5/95/145     ZvwiLt 3/10/2002

welqt Avav miKvix /¯^vqZ¡ kvwmZ ms¯’v/ivóvqZ¡ e¨vsK I A_©jMœx cªwZôvb mg~‡ni Kg©KZ©v/ Kg©Pvix‡`i ‡eZb e„w×i myweav cª`vb cªms‡M|

m~Ît- Ag/Awe (ev¯Í-1)/ wewea-5/230, Zvs 19/11/95   

A_© wefvM KZ©„K RvixK…Z 15/9/2002 Zvwi‡Li 138 bs ¯^vi‡Ki Abye„w˵‡g Avw`ó wbgœiyc e¨e¯nv Mªn‡bi Rb¨ Aby‡iva Kiv n‡jv|

(K)  A_© wefv‡Mi 19/11/1995Bs Zvwi‡Li 230 b¤^i Awdm Av‡`kwU fzj e¨vL¨v K‡i mKj gš¿Yvjq/ms¯nv KZ©„K wbR wbR ms¯nv /cªwZôv‡bi wewa, cªweavb I c×wZ AbymiY bv K‡i Aemicªvß miKvix Kg©KZ©v/Kg©Pvix‡`i †¶‡Î cª‡hvR¨ nv‡i I c×wZ‡Z Avby‡ZvwlK (Mª¨vPzBwU) cª`vb Kivi Awdm Av‡`k Rvix Kiv n‡q‡Q D³ Av‡`k mg~n I evwZj Kivi Rb¨ mswk ó¬ gš¿Yvjq/wefvM mg~n‡K Aby‡iva Kiv n‡jv|

(L)   19/11/95 Zvwi‡Li 230 b¤^i Av‡`‡ki fzj e¨vL¨v K‡i wewfbœ gš¿Yvj‡qi weiy‡× `v‡qiK…Z ixU wcwUk‡bi wel‡q `vwqZ¡ e¨e¯nv Mªnb Ges †Kvb gvgjvq miKv‡ii mswk ó¬ gš¿Yvjq/wefvM mg~n‡K Aby‡iva Kiv n‡jv|

(M) A_© wefv‡Mi 19/11/95 Zvwi‡Li 230 b¤^i Av‡`‡ki fzj e¨vL¨v K‡i AwZwi³ A_© cª`vb Kiv n‡q _vK‡j cª`vbK…Z AwZwi³ A_© Av`vq A_© mgb¡q Kivi Rb¨ mswk ó¬ gš¿Yvjq/wefvM mg~n‡K Aby‡iva Kiv n‡jv|

                                                                            ¯^vt

 (Ave`yj evix)

wmwbqi mnKvix mwPeÓ

Those are contents of the Government orders and circulars.

The claim of the litigant officers and employees of different semi Government Organizations, autonomous bodies etc. are based on

total  misinterpretation and misconstruction of the words used in the office order dated 19.11.1995 of the Ministry of Finance. The words, ÒmiKvix Kg©KZ©v Kg©Pvix‡`i †cbkb cª`v‡bi †¶‡Î †hfv‡e †eZb wba©vib nqÓ have not

been interpreted and construed for the purpose of which those words were used. In the said office order the words, ÒAvby‡ZvwlK (MªvPz¨BwU) cª`v‡bi †¶‡Î H GKB wbqgÓ were used for the purpose of fixation of salary for calculating and paying the gratuity of the officers and employees of the autonomous bodies, corporations and other semi government organizations.

From plain reading of contents of the order it appears that the autonomous bodies, Corporations and semi government organizations would follow their own rules, regulations and methodology in respect of payment of gratuity, but the procedure of fixation of the salaries of their officers and employees for the purpose of calculating the gratuity would be done following the procedure adopted for fixation of salaries of the Government employees while paying their pensions. The office order dated 19.11.1995 did not provide any provision that the officers and employees of the autonomous bodies, corporations and other semi- government organizations would get their gratuity

following the same method as other government officers and employees. The entitlement of gratuity or pension benefits should be regulated by their respective service Rules. Moreover, 7 member bench of this Division has observed that the office order dated 19.11.1995 has no force of law. Since the said order has got no force of law, the same can not be enforced by issuing mandamus.

It is relevant here to mention that for the purpose of regulating the terms and conditions of the service of the employees, each of the aforesaid autonomous bodies, corporations semi government organizations, nationalized banks and financial institutions has specific service Rules. The terms and conditions of the service of the officers and employees of each organization, body bank and institution as mentioned earlier, shall be regulated by their respective service rules. For example, for the officers and employees of Bangladesh Agricultural Development Corporation there is specific service Rules in the name of Òevsjv‡`k K…wl Dbœqb K‡c©v‡ik‡bi Kg©Pvix PvKzix wewagvjv, 1990Ó

In Chapter-8 of the said wewagvjv, the provisions of ÒAemi MªnY I Ab¨vb¨ myweavÓ have been provided which run as follows:

                              Ò Aemi MªnY I Ab¨vb¨ myweavÓ

51| fwelr Znwej|- K‡c©v‡ikb Dnvi Kg©Pvix‡`i Rb¨, hvnvi cªweavb 53 Gi Aax‡b AemifvZv I AemiRwbZ myweavw` Mªn‡Yi B”Qv cK ªvk Kwi‡eb bv, Zvnv‡`i Rb¨ Ask cª`vqK fwel¨r Znwej bv‡g GKwU Znwej MVb Kwi‡e, hvnv‡Z cª‡Z¨K Kg©Pvix Ges K‡c©v‡ikb, miKvi KZ©„K mgq mgq wba©vwiZ Puv`v cª`vb Kwi‡e, Ges D³ Znwe‡ji †¶‡Î, Bangladesh Agricultural

Development Corporation (Contributory Provident Fund) Regulations, 1967, cª‡qvRbxq Awf‡hvRbmn cª‡hvR¨ nB‡e|

52|Avby‡ZvwlK|-(1) wb‡g¥v³ †h †Kvb Kg©Pvix Avby‡ZvwlK cvB‡eb, h_vt- (K)K‡c©v‡ik‡b Kgc‡¶ wZb ermi Ae¨vnZfv‡e PvKzix Kwiqv‡Qb Ges kvw¯Z¯^iyc PvKzix nB‡Z eiLv¯Í ev AcmvwiZ nb bvB ev hvnvi PvKzixi Aemvb NUv‡bv nq bvB| (L) Kgc‡¶ wZb ermi PvKzix Kwievi ci whwb KZ©„c‡¶i AbygwZmn PvKzix nB‡Z c`Z¨vM ev PvKzix Z¨vM Kwiqv‡Qb| (M) wZb ermi c~Y© nIqvi c~‡e© wbg¥iyc Kvi‡Y †h Kg©Pvixi PvKzixi Aemvb nBqv‡Q, h_vt-

(A)wZwb †h c‡` wbhy³ iwnqv‡Qb †mB c` wejyß nBqv‡Q A_ev c` msL¨v n«v‡mi Kvi‡Y wZwb PvKzix nB‡Z QuvUvB nBqv‡Qb|

(Av) m¤ú~Y© ev AvswkK Amvg‡_©i Kvi‡Y Zvnv‡K PvKzix nB‡Z eiLv¯Z ev AcmvwiZ Kiv nBqv‡Q, A_ev (B) PvKzixiZ _vKvKv‡j wZwb g„Zz¨eiY Kwiqv‡Qb| (2) †Kvb Kg©Pvix‡K Zvnvi PvKzixi cª‡Z¨K c~Y© ermi ev AvswkK erm‡ii †¶‡Î

(GKkZ wekwU Kvh©w`em ev Z`ya© †Kvb mg‡qi PvKzixi Rb¨) `yB gv‡mi g~j †eZ‡bi

nv‡i Avby‡ZvwlK cª`vb Kiv nB‡e|

(3)me©‡kl M„nxZ †eZb Avby‡ZvwlK MYbvi g~j wfwË nB‡e|

(4)  †Kvb Kg©Pvixi g„Zz¨i Kvi‡Y Avby‡ZvwlK cªvc¨ nB‡j hvnv‡Z Zvnvi g‡bvbxZ

e¨w³ ev e¨w³MY Dnv cvBevi AwaKvix nb Z¾b¨ cª‡Z¨K Kg©Pvix Dchy³ KZ©„c¶ KZ©„K wba©vwiZ di‡g GK ev GKvwaK g‡bvbqb `vb Kwi‡eb, Ges digwU D³ KZ©„c¶ KZ©„K wb‡`©wkZ KZ©„c‡¶ wbKU Rgv w`‡eb|

(5)    †Kvb Kg©Pvix Dc-c«weavb (4) Abyhvqx GKvwaK e¨w³‡K g‡bvbqb`vb

Kwi‡j, g‡bvbqbc‡Î Zvnvw`M‡K cª‡`q Ask GBiyc D‡j¬L Kwi‡eb †hb Avby‡Zvwl‡Ki m¤ú~Y© UvKv Dnv‡Z AšÍf~©³ nq, Ges hw` GBiyc D‡j¬L Kiv bv nq Z‡e UvKvi cwigvY

mgvb As‡k fvM Kiv nB‡e|

(6)   †Kvb Kg©Pvix †h †Kvb mg‡q wjwLZ †bvwUk Øviv D³ g‡bvqbcÎ evwZj

Kwi‡Z cv‡ib Ges GBiyc evwZj Kwi‡j, wZwb D³ †bvwU‡ki mwnZ Dc-cªweavb (4) I (5) Gi weavb Abymv‡i GKwU byZb g‡bvbqbcÎ Rgv w`‡eb|

(7)  †Kvb  Kg©Pvix  g‡bvbqbcÎ  Rgv  bv  w`qv  g…Zy¨  eiY  K‡j wi,  Zvnvi

Avby‡Zvwl‡Ki UvKv DËivwaKvi cªgvY c‡Îi wfwˇZ ˆea Iqvwik ev IqvwikMY‡K cª`vb Kiv nB‡e|

53| AemifvZv I AemiRwbZ myweavw`|-(1) K‡c©v‡ikb, miKv‡ii c~e© Aby‡gv`bµ‡g, wjwLZ Av‡`kØviv, mvaviY fwel¨ Znwej, Aemi fvZv I AemiRwbZ myweavw` cwiKí Pvjy Kwi‡Z cvwi‡e Ges GBiyc cwiKí msµvšÍ hveZxq wel‡q miKvwi Kg©PvixM‡Yi †¶‡Î cª‡hvR¨ wewagvjv I miKvi KZ©„K Zrm¤ú‡K© mgq mgq RvixK…Z Av‡`k ev wb‡`©k, cª‡qvRbxq Awf‡hvRbmn cª‡hvR¨ nB‡e|

(2)  Dc-cªweavb (1) G Dwj¬wLZ cwiKí Pvjy Kiv nB‡j, c ‡ªZ¨K Kg©Pvix,

K‡c©v‡ikb KZ©„K GZ`y‡Ï‡k¨ wba©vwiZ Zvwi‡Li g‡a¨, D³ cwiK‡íi AvIZvaxb nBevi ev bv nBevi B”Qv Ávcb Kwiqv Dchy³ KZ©„c¶‡K AewnZ Kwi‡eb|

(3)  D³ cwiK‡íi AvIZvaxb nBevi Rb¨ Dc-cªweavb (2) Gi Aaxb B”Qv

cªKvkKvix †Kvb Kg©Pvix D³iyc B”Qv cªKv‡ki mgq cª‡`q fwel¨r Znwe‡j Puv`v cª`vbKvix Kg©Pvix nBqv _vwK‡j,

(K)   D³ Znwe‡j Zvnvi cª`Ë Puv`v I Dnvi Dci AwR©Z my` mvaviY fwel¨Z Znwe‡j Zvnvi cª`Ë Puv`v I Dnvi Dci AwR©Z my` mvaviY fwel¨r Znwe‡j ¯nvbvšÍwiZ nB‡e|

(L)    K‡c©v‡ikb KZ©„K cª`Ë Puv`v I Dnvi Dci AwR©Z my` K‡c©v‡ikb †diZ cvB‡e

Ges K‡c©v‡ikb D³ Puv`v I my`, Dnvi wm×všÍ †gvZv‡eK, Aemi fvZv cwiK‡í ev

Ab¨ †Kvb Lv‡Z e¨envi Kwi‡Z cvwi‡e|

(M)     K‡c©v‡ikb wm×všÍ mv‡c‡¶, Zvnvi c~e©Zb PvKzixKvj Aemi fvZv I AemiRwbZ myweavw` cªvwßi D‡Ï‡k¨ MYbv‡hvM¨ PvKzixKvj wnmv‡e MYbv Kiv nB‡e| Ó

The Service Rules of the semi-government

organizations, autonomous bodies, Nationalized banks or Financial Institutions are almost identical. Their respective service rules provides specific provisions for recruitment of the

officers and employees, their requisite educational qualifications and other particulars, that is, eligibility for filing applications for employment, the procedure adopted for the recruitment, different sources of recruitment, fixation of salaries and other service benefits of the recruited employees as well as their retirement benefits. The respective service regulations / rules are distinguishable from those of the government officers and employees. For example, BADC Employees Service Rules provides special provisions of higher pay scale at the time of appointment of a meritorious candidate. Rule 11(2) provides, Ò†Kvb e¨w³‡K Zvnvi we‡kl †gavi ¯^xK…wZ ¯^iyc, mswk¬ó evQvB KwgwUi mycvwi‡ki wfwˇZ D”PZi cªviw¤¢K ‡eZb cª`vb Kiv hvB‡Z cv‡i|Ó For the

officers and employees of the BADC there are specific provisions for ÔQywUi bM`vqbÕ, ÔågYfvZvÕ, Ôm¤§vbxÕ, Ô`vwqZ¡ fvZvÕ and ÔDrme fvZvÕ I Ô†evbvmÕ, etc. Similarly, M¨vm U«vÝwgkb †Kv¤úvbx wjwgw‡UW (wRwUwmGj) Gi PvKzix cªweavbgvjv, 1996 provides special

provisions for salaries and other benefits of its officers and employees. Regulation 9 provides, Ô†eZb

fvZv t †Kv¤úvbx wewfbœ mg‡q †hiyc wba©vib Kwi‡e, Kg©KZ©v/Kg©Pvix‡`i †eZb I fvZv †miyc

nB‡e|Õ Regulation 10 provides, Ô(1) ¯^vfvweKfv‡e †Kvb c‡` †Kvb

e¨w³‡K cª_g wb‡qv‡Mi mgq D³ c‡`i Rb¨ wba©vwiZ †eZbµ‡gi me©wbg¥ µg nB‡e Zvnvi

cªviw¤¢K †eZb| (2) †Kvb e¨w³‡K Zvnvi we‡kl †gavi ¯^xK…wZ ¯^iyc, mswk¬ó evQvB KwgwUi mycvwi‡ki wfwˇZ †Kv¤úvbx KZ©„c¶  D”PZi cªviw¤¢K †eZb cª`vb iv nB‡e|Õ Regulation 12(4) provides, Ôcªksmbxq ev AmvaviY Kg©`¶Zvi Rb¨ †Kv¤úvbx Dnvi †Kvb Kg©KZ©v/Kg©Pvix‡K GKm‡½ AbwaK `yBwU we‡kl †eZb e„w× gÄyi Kwi‡Z cvwi‡e|Õ Provisions relating to retirement benefits

of retirees of the GTCL are also different. The High Court Division, while deciding the Writ Petition No.6069 of 2014 did not at all consider those special provisions of salaries and retirement benefits of the officers and employees

of GTCL. On perusal of the respective Service Rules/ Regulations it appears that the salaries

and service benefits provided for the employees of different autonomous bodies, corporations and other semi government organizations are not identical to those with the government servants.

From the judgment passed in Civil Appeal No.12 of 2006 it appears that seven member bench of this Division categorically held that the office order dated 19.11.1995 has no force of law and the writ petitioners could claim their pension benefits pursuant to the said office order as of right. (underlined by us). Thereafter, said bench allowed the appeal holding that the officers and employees of the different Corporations have been discriminated  from the Government Servants in respect of payment of the gratuity and other pension benefits. While drawing such conclusion

this  Division  failed  to  examine  the  respective service Rules/ Regulations, terms and condition of service,  the  nature  of  job,  the  appointment process of the officers and employees, their pay scales  and  other  service  benefits,  etc.  provided in their respective service Rules/ Regulations.

It is relevant here to state that two schemes, that  is,  pension  scheme  and  gratuity  scheme  are distinguishable which, in short, are as follows:

/ª kv- /ª kv-

Aforesaid  provisions  clearly  show  that  there are some distinguishable features between the two different  schemes.  Those  two  schemes  are  created by two different laws. The system and method for calculation of the gratuity and pension are also different. Those laws are still in force and are being followed. The very purpose of legislation is to  draw  the  line  in  such  a  way  that  different employees are treated differently.

In the case of State of Karnataka V. Suvana Malini reported in AIR 2001 SC 606 Supreme Court of India observed that the legislature as well as the  executive  government,  while  diverse  problems arising  out  of  an  infinite  variety  of  human

relations must of necessity, have the power of selection or classification of persons and things upon which such laws are to operate.

Well established principle, to be always borne in mind, is that Constitution prohibited classification but it does not forbid reasonable classification. In order to pass the test of permissible classification two conditions must be fulfilled, namely,

1. that the classification must be founded on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and
2. that the differentia must have a rational relation to the object sought to be achieved by the statute in question.

By nature, attainment or circumstances all persons are not in the same position and the varying needs of different classes of persons often require different treatment. There can be no discrimination alleged where the nature of duties performed is different. The nature of duties and responsibilities performed by the officers and employees of Corporations, semi government organizations and autonomous bodies and the government officers and employees are different and there is no parity.

 Equality before law, means that amongst equals one should be equal and equally administered and that like should be treated alike. It does not forbid different treatment of unequals. The rule is rather that like should be treated alike and that unlike should be treated differently. “Equality before law” as provided in article 27 of the Constitution does not mean the same law  should be applicable to all the employees of the government, semi-government, autonomous bodies and corporations. The concept basically postulates the application of the same law alike and without discrimination to all the persons similarly situated. It can not be said that the Government or its instrumentalities acted arbitrarily or practised discrimination between the two classes who are not similar and do not stand on the same footing. Classification between employees of different Corporations and Government employees is legal, valid and reasonable. If certain benefits are provided for pure government servants and those benefits are not extended to employees of the corporations and vice versa it cannot be satisfactorily contended that there is

discrimination. Two categories of employees are different. They form different classes and cannot be said to be similarly situated.

In the case of Ashutosh Gupta V. State of Rajastan reported in AIR 2002 SC page 1533 it has been observed:

“The concept of equality before law does not involve the idea of absolute equality amongst all which may be a physical impossibility. All that Article 14 guarantees is the similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. Equality before the law means that among equals the law should be equal and should be equally administered and that the likes should be treated alike. Equality before the law does not mean that things which are different shall be treated as tough they were the same. It is true that Article 14 enjoins that the people similarly situated should be treated similarly but what amount of dissimilarity would make the people disentitle to be treated equally is rather a vexed question. A Legislature, which has to deal with diverse problems arising out of an infinite variety of human relations must of necessity, have the power of making special laws, to attain particular objects; and for that purpose it must have large powers of

selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not ‘per se’ amount to discrimination within the inhibition of the equal protection clause. The State has always the power to make classification on a basis of rational distinctions relevant to the particular subject to be dealt with. In order to pass the test of permissible classification, two conditions must be fulfilled, namely: (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group, and (ii) that differentia must have a rational relation to the object sought to be achieved by the Act. What is necessary is that there must be a nexus between the basis of classification and the object of the Act.”

(underlined by us)

The Constitution permits reasonable classification founded on different basis. It is now well established that classification can be based on some quality or characteristics of the person grouped together. The guarantee of equality is not applicable in between members of distinct and different classes of the service holders. The

Constitution does not command that in all matters of employment absolute symmetry be maintained. Classification based on reason, executive pragmatism and experience having direct relation with efficiency in administration, is permissible. It has a rational nexus with the object thereof, to hold otherwise would be detrimental to the interest of the service itself. Government officers are recruited by the Public Service Commission through competitive examination, but the officers of semi government organizations and autonomous bodies, etc. are not. There are qualitative differences as regards merit, reliability, efficiency and responsibility. In some cases, it is found that the officers of the corporations, semi-government organizations and autonomous bodies are more qualified than the officers of the government offices and vice versa. A classification will be reasonable if it is based upon material and substantial difference having a reasonable relation between the objects or persons dealt with and the governmental objective sought to be achieved. Equality before the law or equal protection of law does not at all imply absolute equality and does not exclude classification on the basis of difference in status. Article 27 does

not guarantee absolute equality requiring the law to treat all persons alike [S.A. Sabur V. Returning Officer 41 DLR(AD)30]. Semi government organization, Corporations and other autonomous bodies can be treated separately from the government servants. In the case of Bangladesh Rtd. Government Employees Welfare Association V. Bangladesh reported in 51 DLR(AD)121 it was observed by this Division that for the purpose of calculation of pension on the basis of last pay drawn is a real and rational classification. It was further observed that a legislative enactment or a government action cannot be knocked down as unconstitutional even if it results in inequity or is even shocking to the conscience unless such enactment or such action is violative of any provision of the Constitution or law and that inequity or unconscionable effect cannot be rectified by the Court by applying Article 27.

This Division while taking decision as to discrimination totally failed to take into consideration the distinguishing features of retirement benefits, that is, gratuity as given by law of the respective officers and employees of the semi Government organisation, Corporations etc. and the pension benefits of Government

servants, who have been serving in the Service of the Republic. This Division abruptly drew conclusion that the provision of giving retirement benefits to the officers and employees of the service in the Republic and those of the Corporation are discriminatory.

However, it is to be borne in mind by all that extending benefits to the employees is not a charity or bounty nor is it gratuitous payment solely dependent on the whim or sweet will of the employer. It is earned for rendering long past service and is often described as deferred portion of compensation for past services. The employers, whoever they are, shall pay the gratuity or pension benefits in accordance with law to the retirees .

So far as the jurisdiction of this Division to review its judgment is concerned, it is relevant to quote a passage from the judgment passed in the case of Mahbubur Rahman Sikder and others Vs. Mujibur Rahman Sikder and others reported in 37DLR(AD) page 145 is as under:

“From the foregoing submissions made by the learned Counsels and the cases cited by them it is clear that there is no controversy regarding this Court’s power to review its judgment. The power

has been conferred by the Constitution which has also provided how the exercise of this power will be regulated. Article 105 provides that Parliament may enact law as to how the power will be exercised or this Court may make rule for its exercise. So far, no Act for Parliament has been passed as mentioned in the article. The Court has not framed any rules, but has adopted the rules which were made under similar provisions of review in the Constitution of Pakistan, 1962. Review matters at present are governed and regulated by the rules of the Supreme Court, already quoted above. In practice, the Court also regards the provisions of Order 47, Rule 1, C.P.C. for the purpose of reviewing its judgment, though these provisions are not binding upon it. As a matter of practice and rule this Court proceeds to review a judgment pronounced earlier by it upon an application for review by an aggrieved party. Prior to hearing a review petition the Court has to be satisfied that grounds for review as mentioned in Order XXVI of the Rules of the Supreme Court exist. There is no controversy regarding the power, practice and procedure for review in this respect. The question is whether this Court can proceed suo motu to exercise this power. The power to review is derived from the Constitution, so this power cannot be restricted in any manner whatsoever excepting by what has

been provided in the Constitution itself. There is mention of an Act of Parliament and rules of the Court itself. Neither of them has anything to do with the conferment of power or prescribing any limitation or restriction upon it. They can only regulate the manner of exercising the power of review. Neither Parliament nor the Court has untill now made any provisions against exercising the power suo motu. Since the power to review has been conferred by the Constitution, they cannot, I think, negate this power if the Court wants to exercise it on its own.

This view finds support from the

provisions of Article 104. This article has empowered the Court to do ‘complete justice’ in any cause or matter pending before it. Since the judgment under consideration laid down certain conditions to be fulfilled by the parties, the appeal in which the judgment was pronounced may be considered to be pending. Applying the test laid down in (1979)2 All England Reports referred to above the conditions laid down in the judgment may, in the case of non- fulfillment, require to be varied. The expressions ‘doing complete justice’ as

occur in Article 104 are of great significance. Their importance cannot be whittled down. Nor can the Court give up even a fraction of this power. It is a great power with which the Court has been armed.”

Since the provisions relating to retirement benefits of the officers and employees of the semi government, autonomous bodies, corporations, banks and other financial institutions are regulated by their specific laws, they are bound by the provisions of the respective laws and they are not entitled to get any benefit, which the law does not permit.

In view of the aforesaid facts and circumstances, the Civil Appeal Nos.48-54 of 2017 are allowed. The Civil Review Petition No.325 of 2017 is dismissed. The Civil Petition for Leave to Appeal No.1882 of 2018 is disposed of. The judgment and orders of the High Court Division passed in Writ Petition Nos.1539,4298,4299, 4519, 4521,2343 of 2009, 8911 of 2012 are set aside. Contempt Petition No.15 of 2016 is dismissed. The Civil Review Petition No.611 of 2018 and 31 of 2013 are allowed, consequently, the judgment and order passed in Civil Appeal No.12 of 2006 is

hereby reviewed and set aside. Judgment and order passed in Writ Petition No.3502 of 2001 is hereby restored. All the semi government organizations/ autonomous bodies/corporations/ nationalized banks and financial institutions should follow the respective laws for the purpose of fixation and payment of the retirement benefits/gratuity etc. of their officers and employees.

C.J.                                                                                                  J.                                                                                                  J.

J.

J.                                                                                                   J.                                                                                                  J.

The 2nd May, 2019. M.N.S./words-7399/