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Microsoft Word - WP No. 14377 of 2019_Time Scale-Disposed_

    IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 14377 of 2019

In the matter of:

An  application  under  article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

- AND-

In the matter of:

Md. Masud Iqbal and others,

………..Petitioners.           -Versus-

Bangladesh represented by the Secretary, Ministry  of  Finance,  Bangladesh Secretariat, Ramna, Dhaka and others,

          ....... Respondents.

Mr. Mohammad Ibrahim Khalil, Advocate with Mr. Mansurul Haque Shafi, Advocate and

Mr. Md. Dulal Sheikh, Advocate

  .....For the petitioners. Mr. M.A. Sobhan, Advocate,

                                                          ...For respondent Nos.3 & 4.

   Judgment on: 05.11.2023

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice Md. Khairul Alam.

Md. Khasruzzmaman, J.

On 15.12.2019 the  Rule Nisi under adjudication was

issued in the following terms:

Let a Rule Nisi be issued calling upon the respondents to show cause as to why the provision of para 6 of the Services  (Pay  and  Allowances)  Order,  2015  so  far  it


1

relates to creating an embargo upon the entitlement of the petitioners to the benefits of ‘Selection Grade’ under the provision of para 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 should not be declared to have been made without lawful authority and is of no legal effect and why they should not be directed to allow the petitioners the benefits “Selection Grade” on completion of four  years  of  service  counting  from  the  date  of  their joining  and/  or  such  other  or  further  order  or  orders passed as to this Court may seem fit and proper”.

Facts, necessary for disposal of the Rule Nisi, in short, are that the writ petitioners were appointed vide office orders of different dates i.e. on 16.02.2012, 20.09.2012, 20.09.2012, 20.06.2013,  22.01.2012,  22.01.2012,  22.01.2012, 22.01.2012, 22.07.2012 respectively to the post of Librarian, Assistant  Research  Officer,  Research  Officer,  Assistant Director,  Budget  Officer,  Extension  Officer,  and  Accounts Officer in the service of Bangladesh Sericulture Research and Training  Institute  (FSRTI),  Rajshahi  and  Bangladesh Sericulture Board, Rajshahi under the Service Rules, namely “Services (Pay and Allowances) Order, 2009”. In paragraphs 7(7) and 7(9) of the said Order, 2009 it has been provided that  all  Class-I  and  Class-II  Officers  are  entitled  to  get selection grade on completion of 04(four) years of service from the date of joining. It is stated that the concept of such time scale and selection grade was introduced as an incentive to the officers and employees of the Republic who were not given promotion due to lack of higher post and as such they had to work in the same post for a long time. In the meantime, the petitioners have satisfactorily completed four years of service and as such, they are entitled to get selection grade under the provision of paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009. But they were not allowed to get selection grade on the ground of operation of paragraph 6 of the Services (Pay and Allowances) Order, 2015 by which the benefit of time scale and selection grade under Services (Pay and Allowances) Order, 2009 was abolished. It is stated that the petitioners were appointed during the existing of Services (Pay and Allowances) Order, 2009 and as such, they have a right to get selection grade under paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order 2009 and this right cannot  be  denied  or  taken  away  by  the  subsequent enactment of the Services (Pay and Allowances) Order, 2015. It is further stated that on similar point Writ Petition Nos. 3545 of 2018, 3848 of 2018 and 3925 of 2018 were filed by the  employees/officers  of  different  departments.  After

Under such circumstances, the petitioners challenged the  provision  of  paragraph  6  of  the  Services  (Pay  and Allowances)  Order  2015  so  far  it  relates  to  creating  an embargo  upon  the  entitlement  of  the  petitioners  to  the benefits of selection grade under paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 and obtained the present Rule Nisi in the manner as stated hereinabove.

The respondent No. 3 and 4 contested the Rule Nisi by filing  two  separate  affidavits-in-opposition  denying  the material facts as stated in the writ petition contending inter alia  that  none  of  the  petitioners  completed  four  years  of service  before  coming  into  being  the  Services  (Pay  and allowances) Order, 2015 and therefore the petitioners can not claim to attain the selection grade under the Services (Pay and allowances) Order, 2009. The petitioners are not entitled to the benefits of selection grade of paragraphs 7(7) and 7(9) of the National Pay Scales, 2009 in view of the fact that the appointment letter as well as joining letter of the petitioners speak that four years of service has not been completed from the date of joining to the publication of the pay scale and benefits,  2015  in  such  circumstances  para  6  of  the  said Services (Pay and allowances) Order 2015 not to be declared unlawful.

Mr. Mohammad Ibrahim Khalil, the learned Advocate appearing on behalf of the petitioners submits that as per paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 all first class officers irrespective of cadre and non cadre under Grade-IX and the second class officers will be entitled to get selection grade on satisfactory completion of four  years  of  service  and  the  petitioners  were  appointed during existing of the said provision of Services (Pay and Allowances) Order, 2009 and hence, they are entitled to get the selection grade as per paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009. So, the exclusion of the said provision by Paragraph 6 of the Services (Pay and Allowances)  Order,  2015  cannot  operate  as  a  bar  for  the petitioners to get selection grade under paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009.

On the question of maintainability of the writ petition, the learned Advocate for the petitioners submits that since the petitioners have challenged paragraph 6 of the Services (Pay and Allowances) Order, 2015 so far it relates to creating an embargo upon the entitlement of selection grade of the petitioners and since the said order has been issued by the order of the President, the same becomes a law and as such, filing of the writ petition by challenging the said paragraph 6 of  the  Services  (Pay  and  Allowances)  Order,  2015  is maintainable. He also submits that there is a long line of decision  of  our  apex  court  that  right  created  under  the existing regulations cannot be taken away by the subsequent change of regulation and therefore, the Rule Nisi is liable to be made absolute. In support of his contention he has relied on  the  cases  of  Bakhrabad  Gas  System  Limited  Vs.  Al Masud-ar-Noor and others, 66 DLR(AD)187; Bangladesh Bank  and  another  Vs.  Sukamal  Sinha  Choudhury  and another, 21 BLC(AD), 212; Md. Rokab Ali Dewan and 19 others Vs. the Government of Bangladesh passed in Writ Petition No.9049 of 2016(unreported); BADC Vs. A.K.M. Abdus Salam and others, 58 DLR(AD)58; Emdad Hossain and others Vs. Bangladesh Biman Corporation and others, 13 BLC(HCD) 541 and Moinur Rahman and others Vs. Chairman BADC, 23 BLD(AD)147. He has also relied on an unreported Judgment delivered on 15.7.2018 in Civil Petition for Leave to Appeal No. 4717 of 2017 (Sahel Ahmed and others Vs. Government of Bangladesh represented by the Secretary, Ministry of Industries and others). He has also relied on the cases of  Md. Abdus Salam and others Vs. Bangladesh (In Writ Petition No. 3545 of 2018); Ayesha Ferdours  Taher  and  others  Vs.  Bangladesh  (In  Writ Petition No.3848 of 2018) and Babul Akter and others Vs. Bangladesh (in Writ Petition No. 3925 of 2018). All these three writ petitions were disposed of vide judgment and order dated 02.05.2019 directing the authority to consider the case of time scale and selection of the petitioners of those writ petitions.

Mr. M.A. Sobhan, the learned Advocate appearing on behalf of the respondent Nos. 3 and 4 by referring to the affidavit-in-opposition  and  supplementary  affidavit-in- opposition submits that all the petitioners were appointed in 2012 and none of them completed 04(four) years of service for getting selection grade as required under paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 before the  impugned  Services  (Pay  and  Allowances)  Order,  2015 came into force and as such, their claim of accruing vested right under paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 does not arise at all. He further submits that as per section 5 of the Services (Reorganization and Conditions) Act, 1975 the Government is empowered to make Services (Pay and Allowances) Order, 2015 withdrawing the benefit of time scale and selection grade scale under the Services (Pay and Allowances) Order, 2009 and as such, the petitioners cannot claim selection grade scale under the law and accordingly, he prays for discharging the Rule Nisi. He also submits that granting or refusing of selection grade is a matter relating to the terms and conditions of the service of the  petitioners  and  the  petitioners  remedy  is  available elsewhere not under the judicial review under article 102 of the Constitution and as such, the Rule Nisi is liable to be discharged.

We  have  considered  the  submissions  of  the  learned Advocate for both the parties, perused the writ petition and other papers annexed thereto as well as the decisions as referred to above.

Let us take up first the question of maintainability of the writ petition as raised by the respondents. There are long line of  decisions  of  our  apex  Court  including  Bangladesh  Vs. Sontosh Kumar Saha, 21 BLC (AD) 94 that where vires of any law was under challenged, judicial review can be invoked under article 102 of the Constitution. In the present case, paragraph 6 of the Services (Pay and Allowances) Order, 2015 has been challenged so far it relates to creating an embargo upon the entitlement of selection of the petitioners. It appears that the said Services (Pay and Allowances) Order, 2015 has been issued under the order of the President and as such, the same becomes a law of the land and challenging of which the writ petition filed by the petitioners is well maintainable.

The issue raised in this writ petition is whether the petitioners are entitled to get selection grade scale as per paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 despite of the fact that those provisions were abolished  by  paragraph  6  of  the  Services  (Pay  and Allowances)  Order,  2015.  In  this  respect,  the  petitioners asserted in the writ petition that they were appointed during the existence of the Services (Pay and Allowances)  Order, 2009 wherein the provision of giving financial benefit in the name of time scale and selection grade scale were available in paragraphs  7(2),  7(7)  and  7(9)  of  the  Services  (Pay  and Allowances)  Order,  2009  which  cannot  be  taken  away  by subsequent enactment in the present case the Services (Pay and Allowances) Order, 2015. In support of the claim the petitioners relied on the decisions as referred above.

The point involved in this writ petition has elaborately been dealt with by this Division in Writ Petition Nos. 3545 of 2018, 3848 of 2018 and 3925 of 2018 by judgment and order dated 02.05.2019. In that judgment, another Bench of this Division held:

“Since the petitioners have successfully completed their service, they were entitled to be Time Scale and  Selection  Grade  according  to  existing Rules/Laws  when they  were working as per the Services (Pay & Allowances) Order, 2009. True, an appointing  authority  enjoys  the  power  and  the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the  accrued/vested  rights  of  its  employees,  who were entitled to at the time of entering into their services.  The  respondents  do  not  have  any unguided, unfettered and arbitrary power to make Rules  which  would  adversely  affect  the  existing employees of any department/institution who have accrued  legal  rights  from  the  existing  Rules  by which  their  service  had  been  governed  for  long years. We have taken into account that there is long line  of  judicial  decisions  of  our  apex  Court  that rights accrued under the provisions of the previous Recruitment Rules cannot be changed or alter to the disadvantage  of  the  existing  employees  by subsequent  amendment.  Thus,  it  is  well  settled principle  of  law  that  vested  rights  created  under previous Recruitment Rules cannot be taken away by any subsequent amendment or change through new Recruitment Rules. Reverting back to the case in hand,  we  are of the view  that in order to do substantial  justice,  there  is  a  fair  scope  to  give proper  relief  to  the  petitioners’  in  exercise  of  our jurisdiction  under  Article  102  of  the  Constitution

In the said judgment it has further been held:

“Right of every employees to achieve/get the time scale and selection grade would be governed by the Rules under which they have acquired their rights. But the impugned Rules have devastatingly affected the  petitioners’  right  to  avail  Time  Scale  and Selection Grade. That being the situation, we are of the view that since the petitioners were appointed before  come  into  play  of  the  Services(Pay  and Allowances)  Order,  2015  and  the  terms  and conditions of service of the petitioners are regulated and  controlled  under  the  Services  (Pay  and Allowance)  Order,  2009  and,  the  omission  and exclusion of Time Scale and Selection Grade in the Services(Pay  and  Allowances)  Order,  2015  is disadvantageous to the petitioners and, therefore, the petitioners case in respect of Time Scale and Selection Grade should be considered according to the  provision  of  the  para  7(2)  and  7(9)  of  the National  Pay  Scale,  2009  in  the  light  of  66 DLR(AD)187 and 21 BLC(AD)212 cases.”

In view of the decisions referred above and the facts and circumstances  of  the  case  in  hand,  we  are  inclined  to subscribe the same views as taken by another Bench of this Division.  

Accordingly, the  Rule  Nisi issued in the instant Writ Petition No. 14377 of 2019 is hereby disposed of with the following directions.

The respondents are directed to consider the petitioners’ selection grade under the provision of paragraphs 7(7) and 7(9) of the Services (Pay and Allowances) Order, 2009 within 03(three) months from the date of receipt of a copy of this judgment and order provided they are not found otherwise disqualified in accordance with law.

There will be order as to costs.

Communicate the order.

MD. KHAIRUL ALAM, J.

I agree