IN THE SUPREME COURT OF BANGLADESH

                   HIGH COURT DIVISION

                  (SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION No. 5726 OF 2021

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. Mokarrom Hossain and others   

                                       ....Petitioners

-Versus-

The  Secretary,  Ministry  of  Industries Government  of  the  People’s  Republic  of Bangladesh, 91 Motijheel Commercial Area, Dhaka and others 

..... Respondents Mr. Md. Ataur Rahman, Advocate

                                                                ........ For the Petitioners.

Mr. Mohammad Abbas Uddin, A.A.G.

. For Respondent No. 1.

Mr. Mohammad Shafiqul Islam, Advocate.

… For Respondent No. 2.

Judgment on: 09.12.2021

Present:

Mr. Justice Md. Khasruzzaman

                  And

Mr. Justice Md. Mahmud Hassan Talukder

Md. Khasruzzaman, J:

On an application under article 102 of the Constitution, on 09.12.2015 the Rule Nisi was issued in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the promotion of the petitioners should not be given as per gazette notification dated 20 June 2005 Rule 5

(3)(4)(5) so far it relates to GKvwaK Dbœqb cÖKí nB‡Z GKB c‡` `yB ev Z‡ZvwaK Kg©KZ©v ev Kg©Pvix‡K wbqwgZ Kiv nB‡j †mB †ÿ‡G Dbœqb cÖK†í †hvM`v‡bi Zvwi‡Li wfwˇZ †Rô¨Zv wba©vwiZ nB‡e and/or pass such other or further order or orders as this Court may seem fit and proper.”

The facts relevant for disposal of the case in short are as

follows:

That all the writ petitioners were appointed in the post of

Credit  Supervisor  of  the  four  Poverty  Alleviation  Projects  of Bangladesh  Small  &  Cottage  Industries  Corporation  (BSCIC),

namely, (1) Women Entrepreneurship Development Programme, (2) Self-Employment Project through Small and Cottage Industries, (3)

Poverty  Alleviation  Project  through  Income  Generation  of  Rural

Industries and (4) Revitalization of Rural Economy Project through

the Development of Rural Industries on different dates in the years

of  1999,  2000  and  2001.  Subsequently,  the  Government amalgamated the four projects forming Small Micro and Cottage

Industries Foundation (SMCIF) under section 28 of the Companies

Act, 1994 which has been published in the Gazette Notification

dated  28.08.2014  (Annexure-A)  and  the  writ  petitioners  were

appointed in the aforesaid Foundation on different dates in the

years of 2015, 2016 and 2017 and subsequently, they were made permanent along with others by the Foundation on 30.04.2017 (Annexure-G). It is stated that in case of appointment as permanent

staff of the Foundation, the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 shall be followed and as per

provision of the Small Micro and Cottage Industries Foundation

Employees Service Probidhanmala, 2015, the employees are to be promoted on the basis  of their service experience. But without following  the  aforesaid  provisions  of  the  Rules  and  without publishing the gradation list, the authority concerned promoted other Credit Supervisor and Accountants illegally who are junior to

the writ petitioners (Annexure-F). Thus the petitioner No.1 filed an application on 10.12.2020 before the Co-ordinator of Gradation List Publication  Committee  detailing  all  the  facts  with  a  prayer  for promotion  of  the  writ  petitioners.  But  without  considering  the same, the authority again promoted some other employees who are junior to them on different dates (Annexure-K).

Under such circumstances, the writ petitioners filed this writ petition and obtained Rule Nisi in the form of mandamus as to why promotion should not be given as per rules 5(3)(4)(5) of the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 as published in the Gazette Notification dated 20 June 2005.

The notices of the  Rule Nisi having been served upon the respondents, respondent No.2 has entered appearance and filed affidavit-in-opposition  contending  inter  alia  that  admittedly  the petitioners  are  the  employees  of  a  Foundation  registered  and established under the Companies Act, 1994 which has own service

rules namely- the ÿz`ª, gvB‡µv I KzwUi wkí dvD‡Ûkb Kg©Pvix PvKzix cÖweavbgvjv, 2015 for dealing with the service of the employees of the Foundation along

with the petitioners and as such the promotion of the petitioners

will be guided as per probidhan 9.3 along with 19.2 read with Schedule 1 of the aforesaid Small Micro and Cottage Industries

Foundation Employees Service Probidhanmala, 2015 and hence,

the claim of the petitioners to promote them as per provision of the Service Rules, 2005 is not maintainable and the Rule Nisi is liable

to be discharged.

Mr. Md. Ataur Rahman, the learned Advocate appearing on
behalf of the writ petitioners submits that the petitioners are
entitled to get promotion as per provision of the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Z vwba©viY wewagvjv, 2005 as
published in the Gazette Notification dated 20 June 2005 since the
petitioners have joined their respective posts in their respective
projects much earlier than the other junior employees who were
promoted by Annexures- F and K to the writ petition and
Annexures-P, P-1 and P-2 to the supplementary affidavit and as

such non consideration of the promotion of the petitioners at the

time of giving promotion to the other junior employees is illegal and without lawful authority and is of no legal effect. He also submits

that articles 27, 29 and 31 of the Constitution provides equal opportunity in the public employment  and as such for non consideration of the promotion of the petitioners the equal opportunity guaranteed under the aforesaid articles of the Constitution has been infringed and as such he has prayed for making the Rule Nisi absolute with direction to be issued upon the respondents to give promotion to the petitioners as per the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 as published in the Gazette Notification dated 20 June 2005.

Mr. Mohammad Shafiqul Islam, the learned Advocate
appearing on behalf of the respondent No.2 submits that
admittedly the petitioners are the employees of the aforesaid
Foundation which has its own service rules namely- ÿz`ª, gvB‡µv I KzwUi wkí dvD‡Ûkb Kg©Pvix PvKzix cÖweavbgvjv, 2015 and the matter of promotion of the
employees of the Foundation including the writ petitioners are
guided by probidhan 9.3 along with 19.02 of the said Service
Probidhanmala, 2015 and as such the petitioners under no
circumstances can claim promotion as per provision of the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 as published in the Gazette Notification dated 20 June 2005 and as

such the Rule Nisi is liable to be discharged. He also submits that

the Foundation in which the petitioners are employed is not a local authority or is not performing the functions in connection with the

affairs of the Republic within the meaning of article 102 of the Constitution and as such writ petition under article 102 of the Constitution is not maintainable and the Rule Nisi is liable to be discharged.

 Having heard the learned Advocates appearing on behalf of

their respective party and on perusal of the writ petition, affidavit- in-opposition along with all papers annexed thereto.

It appears that the petitioners claim promotion as per Gazette Notification dated 20 June 2005 rules 5(3)(4)(5) so far it relates to GKvwaK Dbœqb cÖKí nB‡Z GKB c‡` `yB ev Z‡ZvwaK Kg©KZ©v ev Kg©Pvix‡K wbqwgZ Kiv nB‡j †mB †ÿ‡G Dbœqb cÖK†í †hvM`v‡bi Zvwi‡Li wfwˇZ †Rô¨Zv a wb©vwiZ nB‡e stating that in case

of promotion of the staff of the Foundation, the Dbœqb cÖKí nB‡Z ivR¯^

ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Z  vwba©viY wewagvjv, 2005 shall be followed.

Admittedly all the writ petitioners were appointed in the post of  Credit  Supervisor  of  the  four  Poverty  Alleviation  Projects  of Bangladesh  Small  &  Cottage  Industries  Corporation  (BSCIC), namely, (1) Women Entrepreneurship Development Programme, (2) Self-Employment Project through Small and Cottage Industries, (3) Poverty  Alleviation  Project  through  Income  Generation  of  Rural Industries and (4) Revitalization of Rural Economy Project through the Development of Rural Industries on different dates in the years of 1999, 2000 and 2001 and thereafter the Government established Small  Micro  and  Cottage  Industries  Foundation  (SMCIF)  under section 28 of the Companies Act, 1994 which has been published in the Gazette Notification dated 28.08.2014 by accumulating and amalgamating the aforesaid four projects (Annexure-A) and then the writ petitioners were appointed in the aforesaid Foundation on different  dates  in  the  years  of  2015,  2016  and  2017   and subsequently, they were made permanent along with others by the Foundation on 30.04.2017 (Annexure-G).

In  the  meantime  the  Small  Micro  and  Cottage  Industries Foundation Employees Service Probidhanmala, 2015 has been made for the purpose of regulating the service of the employees of the Foundation.

The learned Advocate for the respondent No.2 has submitted that for all matters relating to the service of the employees of the Foundation  the  Small  Micro  and  Cottage  Industries  Foundation

Employees Service Probidhanmala, 2015 shall be followed not the

Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 as published in the Gazette Notification dated 20 June 2005.

On  perusal  of  the  Foundation  Employees  Service Probidhanmala, 2015, it appears that under the short title and

application of the Probidhanmala it has been stated in probidhan 2.1 that GB cÖweavbgvjv ÿz`ª, gvB‡µv I KywUi wkí dvD‡Ûkb Gi Kg©Pvix PvKzix cÖweavbgvjv,

2015 bv‡g AwfwnZ n‡e| In probidhan 2.2 of the Probidhanmala it has

been stated that GB cÖweavbgvjv Kvh©Kix nIqvi ci Zdwm‡j DwjøwLZ c‡` mgvß 4(Pvi) wU

cÖKí ‡_‡K wb‡qvMK„Z Kg©Pvix Ges fwel¨‡Z wb‡qvMK…Z m  KK jg©Pvixi cÖwZ cÖ‡hvR¨ n‡ |  In the

definition provided in probidhan 3.1 it has been stated that  GB

cÖweavbgvjv ej‡Z Òÿy`ª, gvB‡µv I KzwUi wkí dvD‡ÛkbÕ Gi Kg©Pvix‡`i PvKzix cÖweavbgvjv‡K eySv‡e|Ó It further appears from probidhan 9.1 relating to direct appointment wherein it is stated that “…………dvD‡Ûk‡bi Rb¨ cÖYxZ PvKzix cÖweavbgvjvq DwjøwLZ ‡R¨ôZv, wkÿvMZ †hvM¨Zv, †MÖWfz³ kyb¨ c` I Ab¨vb¨ kZ©vejx Abymibcye©K wewm‡Ki ewY©Z mgvß PviwU cÖK‡íi Kg©KZ©v/Kg©Pvix‡`i ga¨ n‡Z G Rbej wb‡qvM Kiv n‡e| Thereafter, appointment by promotion has been provided in

probidhan  9.3  of  the  aforesaid  Probidhanmala,  2015.  So,  the

aforesaid  Probidhanmala  of  2015  is  the  complete  code  for  the

employees  of  the  Foundation  and  the  petitioners  being  the

employees of the said Foundation shall be governed and guided by

the  aforesaid  Probidhanmala  of  2015  which  has  been  made

pursuant  to  clause  93  of  the  Articles  of  Association  of  the

Foundation wherein it is provided that the SMCIF may, subject to

the directives of the Board of Directors from time to time in this

regard, appoint or employ such persons (officers and employees) as it

consider necessary for the efficient performance of its operation on

such terms and condition as may be prescribed by regulations. But

at first appointment will be made from the manpower of the closed

four projects then outsider. In Probidhanmala 1.7 under Preface of

the Probidhanmala, 2015 it has been stated that  dvD‡Ûk‡bi Memorandum of Association Gi 8 aviv †gvZv‡eK dvD‡Ûk‡b 20 m`m¨ wewkó GKwU mvaviY cl©` Ges Articles of Association 37 aviv †gvZv‡eK 8 m`m¨ wewkó GKwU cwiPvjK cl©` _vwK‡e| AvwU©‡Kjm Ad G‡mvwm‡qkb Gi 93 aviv †gvv Z‡eK GB dvD‡Ûk‡b Kg©KZ©v/Kg©Pvix‡`i wb‡qvM †`qv Ges Zv‡`i cwiPvjbvi Rb¨ GB PvKzix cÖweavbgvjvwU cÖYqb Kiv n‡jv|

In probidhan 19.2 of the Probidhanmala, 2015 wherein PvKzixi avivevwnKZv has been provided stating that dvD‡Ûk‡bi wba©vwiZ c‡` wb‡qv‡Mi ci mKj Kg©KZ©v/Kg©Pvixi PvKzix bZyb wb‡qvM wn‡m‡e we‡ewPZ n‡e| cy‡e©i PvKzixi wnmve MYbv Kiv n‡e bv| dvD‡Ûk‡bi wba©vwiZ c‡` wb‡qv‡Mi ci wb‡qvMK…Z e¨w³‡K Zvi cye© c‡`i AvnwiZ †eZb-fvZvw`i avivevwnKZv (pay protection)  cÖ`vb Kiv n‡e bv|  

So, it is clear that all matters relating to the service of the employees  including  the  petitioners  of  the  Foundation  shall  be

guided  and  regulated  by  the  provision  of  the  Small  Micro  and

Cottage  Industries  Foundation  Employees  Service  Probidhanmala,

2015.

Moreover, the Foundation in which the writ petitioners are
employed is not a development project within the meaning of rule
2(a) of the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 as published in the Gazette Notification dated 20
June 2005 and the petitioners could not establish his claim of
applicability of the aforesaid provision of the Rules, 2005. When
probidhanmala 19.2 of the Foundation Employees Service

Probidhanmala,  2015  provides  that  after  being  employed  by appointment in the service of the Foundation, the service of the officers/employees shall be treated as new/fresh appointment in

the Foundation and their previous service shall not be counted. As such, we are of the view that the petitioners have nothing to deal with the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`iwbqwgZKiY I †R¨ô¨Zv wba©viY wewagvjv, 2005 as published in the Gazette Notification dated 20 June 2005 which is not applicable in the case of the petitioners. The petitioners at best could agitate the bar employed in the provision of the Foundation Employees Service Probidhanmala, 2015.

For the reasons and discussions made hereinabove, we do not find any substance in the submissions of the learned Advocate for the petitioners as well as in the merit of the Rule Nisi which is liable to be discharged.

In the result, the Rule Nisi is discharged without any order as to costs.

Communicate the order.

Md. Mahmud Hassan Talukder, J:

 I agree.