IN THE SUPREME COURT OF BANGLADESH

Appellate Division

PRESENT

Mr. Justice Hasan Foez Siddique,C.J.

Mr. Justice M. Enayetur Rahim

Mr. Justice Jahangir Hossain

CIVIL APPEAL NO. 159 OF 2018 WITH CIVIL APPEAL NOS. 160 -171 OF 2018 (From the judgment and order dated 07.02.2017 and 08.02.2017 in Writ Petition Nos. 4947 of 2014, 5885 of 2014, 6213 of 2014,  6274  of  2014,  8659  of  2014,  12028  of  2014,  487  of 2015,  774  of  2015,  7566  of  2015,  7291  of  2014,  13305  of 2016, 15927 of 2016, and 85 of 2017).

Bangladesh  Council  of  Scientific  and Industrial  Research  (BCSIR), represented by its Chairman

-Versus- G.R.M. Astaq Mohal Khan and others

Md. Matiur Rahim and others

Dr. Md. Tofazzal Hossain and others Md. Mashiar Rahman and others

Dr. Md. Zahurul Hoque and others Mahfuza Khanam and others

Dr. Ismet Ara Jahan and others

Dr. Husna Parvin Nur and others

..........Appellant (In all the cases)

.......Respondents (In C.A. No.159 of 2018)

.......Respondents (In C.A. No.160 of 2018)

.......Respondents (In C.A. No.161 of 2018)

.......Respondents (In C.A. No.162 of 2018)

.......Respondents (In C.A. No.163 of 2018)

.......Respondents (In C.A. No.164 of 2018)

.......Respondents (In C.A. No.165 of 2018)

.......Respondents

(In C.A. No.166 of 2018) Dr. Md. Munsur Rahman being dead  .......Respondents his heirs Rowsan Ara Begum and  (In C.A. No.167 of 2018) others

Dr. Khandker Nesar Ahmed being dead  .......Respondents his heirs: Salina Arju and others  (In C.A. No.168 of 2018) Dr. Shahina Islam being dead her heirs:  .......Respondents 1(a) Md. Mosharaf Hossain and others  (In C.A. No.169 of 2018) Mrs. Katrun Nada and others  .......Respondents

(In C.A. No.170 of 2018) Dr. Mohammad Abdur Rouf and others  .......Respondents

(In C.A. No.171 of 2018) For the Appellant     :  Mr. A. M. Amin Uddin, Senior Advocate with Mr.

(In all the Cases) Sk.  Md.  Morshed,  Senior  Advocate  and  Mr.

Sheikh Reajul Hoque, Advocate) instructed by Mr. Md. Abdul Malek, Advocate-on-Record.

For the Respondents :  Mr. Abdul Wadud Bhuiya, Senior Advocate (with (In all the Cases) Mr. A. J. Mohammad Ai, Senior Advocate, Mr.

Nozrul Islam Choudhury, Senior Advocate Mr. M. Qumrul Haque Siddique, Advocate and Mr. Md. Salahuddin,  Advocate  instructed  by  Ms.  Madhu Malati  Chowdhury  Barua,  Advocate-on-Record, Mr.  Md.  Halal  Amin,  Advocate-on-Record  and Ms. Nahid Sultana, Advocate-on-Record.

Date of hearing :  The 18th and 24th day of January, 2023

Date of judgment:  The 31st day of January, 2023

JUDGMENT

M. Enayetur Rahim,J: These 13 (thirteen) appeals, by leave, are  directed  against  the  common  judgment  and  order delivered on 07.02.2017 and 08.02.2017, by the High Court Division in 13 (thirteen) Writ Petitions being No. 4947 of 2014, 5885 of 2014, 6213 of 2014, 6274 of 2014, 8659 of 2014, 12028 of 2014, 487 of 2015, 774 of 2015, 7566 of 2015, 7291 of 2014, 13305 of 2016, 15927 of 2016 and 85 of  2017,  making  all  the  Rules  Nisi  issued  in  all  the above noted writ petitions absolute. 

The  relevant  facts  for  disposal  of  the  appeals  in brief, are that respondent No.1 in all the 13(thirteen) appeals,  moved  before  the  High  Court  Division  under Article  102  of  the  Constitution  in  the  aforementioned writ  petitions  challenging  the  inaction  of  the  writ- respondents  in  not  allowing  them  to  remain  in  service till the retirement age of 67 years. It is contended in their  respective  writ  petitions  that  all  of  them initially  joined  the  service  of  Bangladesh  Council  of Scientific and Industrial Research (herein after referred to as BCSIR) in the year from 1979 to 1989 as Scientific Officers.  Subsequently,  they  have  been  promoted  to  the post  of  Senior  Scientific  Officer, Principal  Scientific Officer and Chief Scientific Officer, and finally some of

them have been promoted to the post of Director on different times by the Superior Selection Board. Their main contention is that they are the researchers and in recognition of their research works they have been promoted to the higher ranks and in addition to the promotion, some of them have been given with award certificate for number of research activities. They have good numbers of research publications, process and patent rights. However, all the writ petitioners are performing their jobs within the full satisfaction of the authority and are at the age of retirement from service.

In the meantime, the government enacted Bangladesh Council of Scientific and Industrial Research Act, 2013 (herein after referred to as Act of 2013). In Section 12(4) of the said Act it has been provided that those who have special talents and capacity in research would remain in service till attaining the age of 67 years so that they can utilize their talent, skill and experiences in the research properly. All the writ petitioners accordingly by their respective letters of different dates requested the writ respondent No.4 to do the needful, since they are entitled to continue in service till attaining the age of 67 years of age pursuant to the aforesaid provision of law. But the authority did not take any step or to reply to the said letters of all the writ petitioners.

 Hence, the writ petitioners compelled to move before the High Court Division by filing separate writ petitions.

 All  the  Rules  Nisi  are  contested  by  the  writ respondent  No.4(wrongly  mentioned  in  the  impugned judgment  as  respondent  No.2)  by  filing  affidavit-in- opposition  contending,  inter  alia,  that  the  said provision  of  law  under  which  the  writ  petitioners  are claiming to remain in service till 67 years of age are applicable  only  to  persons  working  as  a  researcher. However,  it  is  claimed  that  the  merit,  efficiency  and eligibility  of  the  writ  petitioners  are  under consideration  of  the  Board  for  determination  as  to whether  they  can  stay  in  service  till  completion  of  67 years of age.

The High Court Division, after hearing the parties and  considering  the  materials  on  record,  made  all  the Rules  Nisi  absolute  directing  the  writ  respondents  to implement  the  provisions  of  Section  12(4)  of  the Bangladesh Council of Scientific and Industrial Research (BCSIR)  Act,  2013  and  thereby  allowing  the  writ petitioners  to  remain  in  service  till  their  retirement age of 67 years subject to any rule and guideline framed in the meantime.  

Being  aggrieved  by  the  aforesaid  judgment  and  order dated 07.02.2017 and 08.02.2017, writ-respondent No.4 filed separate 13(thirteen) civil petitions for leave to appeal before this Division and accordingly leave was granted. Hence the present appeal. 

Mr. A.M. Amin Uddin, Senior Advocate with Mr. Sk. Md. Morshed,  Senior  Advocate,  and  Mr.  Sheikh  Reajul  Hoque, advocate  made  submissions  on  behalf  of  the  appellants.  It was submitted that section 12(4) of "" ‘

'' clearly states about two things for granting retirement age of 67 years for researcher of BCSIR, i.e. for those persons who are involved in research work have special talent ( )  and special ability ( ) and the High Court Division committed an error in constraining section 12 (4) holding that the said provision is applicable to all scientists in respect of their age of retirement. It was also submitted that in the affidavit- in-opposition  the  respondents  having  annexed  a  proposed service Rules  framed in the year of 2014 and which is under  process  for  approval  form  the  government  by  gazette notification and in the said proposed service Rules criteria has been laid down for selecting the scientists involving in research work having extra ordinary merit and ability and until there is any guideline as per proposed service Rules publishing by way of gazette  the  writ  petitioners  cannot  claim  any  right  for retirement at the age of 67 years and without considering the same The High Court Division erroneously made the Rule absolute. It was further submitted that after enactment of Act of  2013 many scientists involved in research work have already retired and  granting  special  retirement  benefit  to  the  present  writ petitioners will create discrimination among the scientists. It was  submitted  that  as  to  whether  the  writ  petitioners  are actually involved in potential research work for the nation or as to whether they possess extra ordinary merit and ability are to be determined by the concern authority under proposed Rules and those questions are matter of facts and High Court Division committed an error deciding those questions of fact sitting in writ jurisdiction. The learned Advocates submitted that in BCSIR there are 9 posts vacant out of 11 posts of the Director, 9 posts  vacant  out  of  18  posts  of  Chief  Scientific  Officer

(CS0), 12 posts vacant out of 56 posts of Principal Scientific Officer  (PSO),  55  posts  vacant  out  of  121  posts  of  Senior Scientific Officer (SSO) and there are 201 post for Scientific Officer (SO) and in total 316 research posts are vacant out of 471 posts are for research works and as the Government did not find any capable person(s) to fill-up all those posts by giving promotion  from  the  existing  researchers,  the  writ  petitioners cannot  claim  themselves  that  they  are  in  possess  of  extra ordinary merit and ability and the High Court Division failed to take any consideration that the  writ  petitioner(s) possess those qualifications so that he /she might have been promoted to  the  highest  post  of  the  BCSIR,  rather  the  High  Court Division most erroneously hold that the provision of section 12 (4)  of the Act is applicable to all scientists in respect of their age of retirement and thus the impugned judgment is liable to be set aside.

Mr.  Abdul  Wadud  Bhuiyan,  learned  Senior  Advocate, appearing  on  behalf  of  the  respondents  in  all  the  appeals submitted  that  the  writ  petitioners  being  engaged  in research work for more than 30 years and have special talent and special ability the provision of Section 12(4) of ""

‘ is applicable to the writ petitioners

for  increase  of  their  age  of  retirement  to  67  years.  He submitted that section 12(4) of  "" ‘confers right on the scientists engaged in research work

to  continue  in  service  till  67  years  of  age,  but  any scientist  may  not  go  for  that  right  and  accept  retirement but such voluntary act of one or more individual scientist to retire at 59 years of age does not affect the right of other  scientists  to  continue  in  service  till  67  years  of

age. The learned Advocate submitted that Section 12 (4) of the  "" ‘ does not provide for, or require,  framing  of  Rules  for  giving  effect  to  the  said provision  of  law  which  itself  demonstrates  the  legislative intent to increase the retirement age of the scientists to 67 years and the writ petitioners are certainly engaged in research  because  the  posts  of  Scientific  Officer,  Senior Scientific  Officer,  Principle  Scientific  Officer  and  Chief Scientific  Officer  are  exclusively  research  posts  and  a Director  and  Member  is  also  engaged  in  research  work  and since  the  writ  petitioners  fulfils  the  criteria  of  having special  talent  and  ability  under  the  proposed  rules  which are  undisputed  facts,  the  High  Court  Division  has  not decided any disputed questions of fact and, therefore, the impugned judgment and order is sustainable in law.  

We  have  considered  the  submissions  of  the  learned Advocates  appearing  for  the  parties  concerned,  perused  the impugned judgment and order of the High Court Division and other connected papers on record.

To  decide  the  issue  involved  in  these  cases  it  is needed to examine the provision of section 12(4) of the  

‘ which is as follows:

""

‘

Underlines supplied)

Upon  plain  reading  of  the  said  provision  of  law  it manifests  that  above  provision  is  conditional  one,  i.e.  the retirement  age  of  67  (sixty  seven)  years  would  be  applicable subject to fulfillment of certain conditions, i.e. extra ordinary merit and special ability for research work. There is no scope to

interpret that the said provision of law has been made applicable for all the Scientists of BCSIR to get 67 (sixty sever) years age for retirement. Only the persons, who are to be selected by the competent authority, for their ‘ ’ are entitled to get the benefit of the said provision of law. It is not applicable for each and every Scientists of the BCSIR. Having regard to the fact that for fulfillment of the said provision of law a draft Service  Rules  was  also  prepared,  which  was  under  active consideration of the authority concerned, i.e. the Ministry and while the said draft Service Rules was under consideration for approval, the writ petitioners hurriedly moved before the High Court Division in its writ jurisdiction and obtained the Rules.

It is pertinent to mention here that while the appeal is pending, Government has repealed the said provision of law by amending  the  law.  The  said  amendment  has  taken  effect  from 19.04.2018. As such the provision of section 12(4) has already been repealed.  

Section 12(4) of the Act of 2013 ipso facto does not create any legal or vested right in favour of the writ petitioners to get benefit of the same and the High Court Division has committed serious  error  in  directing  the  respondents-appellants  to implement  the  provision  of  section  12(4)  of  Act  of  2013  by allowing the writ petitioners to remain in service till attending their age of 67 (sixty seven) years.   

It is a recognised rule of interpretation of statues that expression  used  therein  should  ordinarily  be  understood  in  a sense  in  which  they  best  harmonies  with  the  object  of  the statute. In other words a statue has to be interpreted taking consideration  of  ‘intention’  ‘object’  and  ‘policy’  of  the enactment  as  a  whole.  In  the  case  of  Mrs.Ummida  Khan  Vs.

Salauddin Khan & ors., reported in 37 DLR (HC)117 it was been held that the scheme and purpose of an Act is to be gathered from a reading of the enactment as a whole.

According to Maxwell [Interpretation of statutes, 12th edition, page 1-2], the function of a Court is to interpret a statute according to the intent of the legislature, in doing so it must be bear in mind that its function is jus dicere, not jus dare. 

Jus Dicere means the right to speak or to declare or state the law; to expound the law. Jus Dicere, et non jus dare means to declare the law, not to make it. The term is often used to explain the power which the court has to expound the law and not to make it.

JUS DICERE

(Latin: “To say [what] the law [is].”) This is the traditional function of courts, and it is usually understood as a limitation upon their power (jus dicere, et non jus dare). “It is emphatically the province of the judicial department to say what the law is”- Chief Justice john marshall inmarbury v. madison (1803).

In the case of A.K.M. Ruhul Amin Vs. District Judge and Appellate Election Tribunal, Bhola and others (heard along with some other cases) reported in 38 DLR (AD) 172 this Division has held that:

“It should well be remembered that while interpreting statues Judges are not expected to apply pre-conceived notions nor can they be expected to arrive at the conclusion by considering the provisions concerned in an isolated or piecemeal fashion. While construing a statute, its provisions should be considered as a whole, bearing in mind its object and purpose.” (Underline supplied).

 In the above case it has been quoted from the judgment Lord Davey in Carala Sugar Refining Co. Vs K (1898)1C 735 (74) to the effect:

‘Every clause of a statute should be construed with reference to the context and the other clause of the Act, so as, so far as possible, to make a consistent enactment of the whole statutes or series of statutes relating to the subject matter.”

In the case of Nur Mohammad and others vs. Moulvi Mainuddin Ahmed and others, reported in 39 DLR (AD)1 it has been held by this Division to the effect:

“A Judge may have sympathy for a litigant’s suffering due to technicalities of law made by the legislature, still in view of the express legislative intention, he must follow the “hands-off doctrine”. Otherwise, chaos and anarchy would prevail leading to all sorts of complexities and confusion.”

It should be borne in mind that a cardinal principle of construction is that it must be presumed that the legislature does not use any word unnecessarily or without any meaning or purpose. As such no word in a statue should be treated as surplusage or redundant. When the intention of the legislature is clear, no consideration of expediency or possibility of abuse can be allowed to deviate from natural consequences following the correct interpretation.

Lord Wensbydale who propounded the Golden Rule of Construction stated:

“In construing wills and indeed statute and all written instruments the grammatical and ordinary sense is to be adhered to, unless that would lead to some absurdity or some repugnance or inconsistency with the rest of the instrument in which case grammatical and ordinary sense of the word may be modified so as to avoid the absurdity and inconsistency but no further.”

[Source: Bangladesh vs. Haji Abdul Gani Biswas and others, 1981 BLD(AD)8].

If we considered the present cases in the light of the above proposition and interpretation, then we have no hesitation to come to a definite conclusion that the High Court Division misread and misconstrued the provision of section 12 (4) of the Act of 2013 and thus, came to an erroneous decision in making the Rule absolute giving direction to implement the said provision by allowing the writ-petitioners to remain in service till their retirement age of 67 (sixty seven) years. 

Thus, we find merit in the appeals. Accordingly, all the appeals are allowed.

The impugned judgment and order of the High Court Division is set aside.

No order as to costs.

However, the appellant shall not be entitled to get return of the salaries and other service benefits paid to the writ petitioners-respondents as they have rendered their service to the appellant pursuant to the order of the High Court Division and as they have served the appellant till passing the order of stay granted by this Division. The respondents who rendered their service during the aforesaid period are entitled to get return the amount of their respective provident fund. They will get their retirement benefits after attending their age of 59 years.  

C. J. J.

J.

B.S./B.R./*Words-3,085*