IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Writ Petition No. 173 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. Masudul Hasan

                  ………… Petitioner. -Versus-

Biman  Bangladesh  Airlines  Limited, represented by its Managing Director and Chief  Executive  Officer(CEO),  Balaka Bhaban, Kurmitola, Dhaka and others,

        ... Respondents. Mr. Sherder Abul Hossain, Advocate with Mr. Sanjoy Kumar Kundu,Advocate,

           …For the petitioner. Mr. Bepul Bagmar, DAG

Mr. Md. Ekramul Hoque, Advocate,

...For the Respondent No.1.

Judgment on: 21.03.2024

Present:

Mr. Justice Md. Khasruzzaman

and

Mr. Justice K M Zahid Sarwar

Md. Khasruzzaman, J:

In  an  application  under  article  102of  the  Constitution,  on 15.07.2021 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  inaction/omission  of the respondents  to consider  promotion  of  the  petitioner  to  the  post  of  Deputy Manager  (Security-Operation)  (Pay  Group-VII)  with  effect  from 24.08.2016 and also to the post of Manager (Security-Operation) (Pay  Group-VIII)  with  effect  from  17.11.2019  should  not  be declared to have been done without lawful authority and is of no legal effect and to show cause as to why the respondents should not be directed to consider the promotion of the petitioner to the post of Deputy Manager (Security-Operation) (Pay Group-VII) with effect from 24.08.2016 and also to the post of Manager (Security- Operation) (Pay Group-VIII) with effect from 17.11.2019 under the Bangladesh Biman Corporation Employees (Service) Regulations, 1979 and/or pass such other or further order or orders as to this Court may seem fit and proper.”

Facts necessary for disposal of the Rule Nisi in short are that on 10.09.1988  the  petitioner  was  appointed  in  the  post  of  Security Assistant  in  the  service  of  Biman  Bangladesh  Airlines  under Bangladesh  Biman  Corporation  Employees  (Service)  Regulations, 1979. Thereafter, he was promoted to the post of Security Supervisor on 08.05.2000 and afterwards he was promoted to the post of Junior Security  Officer  on  15.12.2005.  Subsequently,  the  petitioner  was again promoted to the post of Security Officer under Pay Group-VI vide Memo dated 31.12.2008. Now, the petitioner is serving as an Assistant Manager since in the Organogram rearranged by the Biman Bangladesh  Airlines  the  post  of  Security  Officer  and  Assistant Manager has been equivalent i.e. Pay Grade-VI. On the other hand, the respondent No.7 was appointed in the post of Security Officer (now Assistant Manager) with Pay Group-VI vide appointment letter No. Employment/ 023/2009/54 dated 19.02.2009. So, it is evidently clear that the petitioner is senior to the respondent No.7. It is stated that  the  respondent  No.1  Biman  prepared  a  list  of  all  eligible candidates  as  per  seniority  for  giving  promotion  to  the  post  of Assistant Manager (Now Deputy Manager) in Pay Group-VII. In the said  list  the  petitioner  was  shown  at  serial  No.3  whereas  the respondent No.7 was shown at serial No.4. Ultimately, the respondent No.7  has  been  promoted  to  the  post  of  Assistant  Manager  (Now Deputy  Manager)  in  Pay  Group-VII  vide  order  dated  24.08.2016. Thereafter, on 17.11.2019 respondent No.7 was again promoted to the post of Manager from the post of Deputy Manager (previously it was Assistant Manager in Pay Group-VIII). Although the petitioner was fit and senior to the respondent No.7, he was not promoted and as such he has been deprived from getting equal protection of law.

In  the  circumstances  as  stated  hereinabove,  the  petitioner challenged the inaction of the respondents in not considering his promotion to the post of Deputy Manager and Manager and obtained the Rule Nisi in the manner as quoted above.

On the contrary, respondent No. 1 filed an affidavit-in-opposition denying all material allegations made in the writ petition stating inter- alia that promotion proceeding was completed as per the Rules and

Regulations  of  Biman  Bangladesh  Airlines.   The  petitioner  has participated in the exam but failed and he has filed the writ petition with malafide intention and consequently, the Rule Nisi is liable to be discharged.

Mr. Sherder Abul Hossain alongwith Mr. Sanjoy Kumar Kundu, the learned Advocates appearing on behalf of the petitioner submits that in case of promotion of the petitioner, he was not dealt with in accordance with law despite he was senior to respondent No.7. The petitioner was dealt with by the so-called administrative Order No.4 of 2016 and thereby the respondent No.7 was promoted superseding the petitioner.  He  further  submits  that  earlier  on  similar  point  Writ Petition Nos. 6786 of 2017, 11521 of 2017 and 1074 of 2018 were filed by some other employees of Biman Bangladesh Airlines. The High Court Division disposed of the said writ petitions by judgment and order dated 19.02.2020 and directed the respondents to promote the petitioners of those writ petitions maintaining their position in the gradation list. The petitioner stands on better footing and he is senior to respondent No.7 and as such, he is entitled to get promotion to the post of Deputy Manager and Manager respectively with retrospective effect from the date on which the respondent No.7 was promoted to those two posts in accordance with law. Hence he prays for making the Rule Nisi absolute.

Mr. Md. Ekramul Hoque, the learned Advocate appearing on behalf of the respondent No. 1 submits that as per regulation 12 of the Bangladesh Biman Corporation Employees (Service) Regulations, 1979  the  authority  has  power  to  issue  administrative  order containing  the  condition  with  regard  to  the  promotion  of  the employees of Biman, there is no illegality in the administrative order No.4 of 2016. However, the authority in compliance of the judgment and  order  dated  19.02.2020  passed  in  those  three  writ  petitions amended  the  provision  of  the  said  administrative  order.  The promotion proceeding of the petitioner was completed as per the rules and  regulations  of  Biman  Bangladesh  Airlines  Limited  but  the petitioner could not succeed in the exam and as such no question of inaction  or  omission  happened  on  the  part  of  the  respondent authority for not promoting him. Moreover, nobody can challenge the promotion as  of right and as such, the  Rule  Nisi  is liable to be discharged.

We have considered the submissions advanced by the learned Advocates for both the parties, perused the writ petition, all other connected papers annexed thereto, the Service Regulations as well as the judgment and order passed earlier by this Court and relied upon by the learned Advocate for the writ petitioner.

Admittedly, on 10.09.1988 the petitioner was initially appointed in the post of Security Assistant. Subsequently, he was promoted to the  post  of  Security  Supervisor,  Junior  Security  Officer  and thereafter, to the post of Security Officer on 31.12.2008, whereas the respondent No.7 was appointed to the post of Security Officer on 19.02.2009. So, it is evidently clear to us that the petitioner is senior to respondent No.7 in the post of Security Officer. It is stated in the writ  petition  that  the  organogram  of  Biman  was  rearranged  and thereby, the post of Security Officer has been renamed as Assistant Manager  under  Pay  Grade-VI.   The  authority  for  the  purpose  of promotion prepared a list wherein the name of the petitioner was shown at serial No.3 and that of respondent No.7 was shown at serial No.4. But the petitioner was superseded and the respondent No.7 was promoted twice on 24.08.2016 and 17.11.2019 in pay group-VII and VIII. Under such circumstances the petitioner filed the writ petition for redress.

It appears that on similar situation some other employees of Biman Bangladesh Airlines Limited filed Writ Petition Nos. 6786 of 2017,  11521  of  2017  and  1074  of  2018.  Another  Bench  of  this Division vide judgment and order dated 19.02.2020 disposed of all the three writ petitions with directions. The High Court Division in the said judgment directed the respondents to immediately promote the petitioners of those writ petitions to Pay Group VI from Pay Group V with retrospective effect from the same date as the respondent Nos. 12 to 26 were promoted and maintain their positions in the gradation list alongwith the aforesaid respondents for all purposes and in all respects as per their respective positions  in the gradation  list in Group V prior to the impugned promotions. In the said judgment the respondents were also directed to formulate new rules and fix specific criteria  and  guidelines  for  promoting  officers  from  Pay  Group  V upwards in Biman by taking into consideration of their performances and service records including their ACRs but they were refrained from giving  promotion  solely  on  the  basis  of  interview  and  viva  voce examinations. In the said judgment, with regard to article 2Ka(1) of Administrative Order No.4 of 2016, this Court found that as per the said article there is no guideline or rule as to how an interview is to be  conducted  in  assessing  the  merit  of  a  candidate  leaving considerable scope for the Interview Board to pick and choose and thereby  to  defeat  the  very  purpose  of  ascertaining  the  actual meritorious candidates. The facts and circumstances of the case in hand are similar to those of cases stated above. In the present case, though  the  petitioner  had  all  eligibility  criteria  as  required  for promotion, he was not dealt with in accordance with law on the face of Administrative Order No.4 of 2016. As such, we are inclined to give similar treatment to the petitioner with regard to his promotion as the respondent  No.7  was  promoted  to  Deputy  Manager  and  Manager respectively.

Accordingly, we find merit in the Rule Nisi as well as substance in the submissions of the learned Advocate for the petitioner. As such, the Rule Nisi is liable to be made absolute.

In the result, the Rule Nisi is made absolute.

Hence,  it  is  declared  that  the  inaction/omission  of  the respondents to consider promotion of the petitioner to the post of Deputy Manager (Security-Operation) (Pay Group-VII) with effect from 24.08.2016 and also to the post of Manager (Security-Operation) (Pay Group-VIII) with effect from 17.11.2019 is without lawful authority and is of no legal effect.

The respondents are directed to consider the promotion of the petitioner to the post of Deputy Manager (Security-Operation) (Pay Group-VII)  with  effect  from  24.08.2016  and  also  to  the  post  of Manager  (Security-Operation)  (Pay  Group-VIII)  with  effect  from 17.11.2019  under  the  Bangladesh  Biman  Corporation  Employees (Service) Regulations, 1979.

There will be no order as to costs. Communicate the order.

K M Zahid Sarwar, J:                                  I agree.