1
In the Supreme Court of Bangladesh High Court Division
(Special Original Jurisdiction) Present
Madam Justice Kashefa Hussain
And
Madam Justice Kazi Zinat Hoque
Writ Petition No. 11069 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. Nazrul Islam and others
. Petitioners.
Vs.
Government of the People’s Republic of Bangladesh and others.
Respondents.
Mr. Ruhul Quddus Patwary, Advocate
..for the petitioners
Mr. Md. Ashraful Alam, Advocate
.. for the respondents No. 1.
Mr. Noor Us Sadik, D.A.G with
Mr. Prahlad Debnath, A.A.G
Mr. Md. Hafizur Rahman, A.A.G with Ms. Farida Parvin Flora, A.A.G
.... for the respondent Nos. 2-13 Mr. Md. Aktaruzzaman, Advocate
.... for the respondent Nos. 14-41
Heard on: 01.08.2022, 04.08.2022 and judgment on: 07.08.2022.
Kashefa Hussain, J:
Rule nisi was issued calling upon the respondents to show cause as to why the impugned Appointment Notice under Memo No. 46.42.1300.030.04.008.21-556 dated 07.09.2021, issued under the
signature of the respondent No. 6, inviting application for appointment of Union Parishad “Accounts Assistant Cum-Computer Operator” (Annexure-T)should not be declared to be without lawful authority and is of no legal effect and as to why the respondents should not be directed to absorb/transfer the service of the petitioners to the revenue budget and regularize their service under the revenue budget with regular appointment as “Accounts Assistant Cum- Computer Operator” in the respective Union Parishad with salary and all other benefits from the date of their original agreement of appointment and/or such other or further order or orders passed as to this Court may seem fit and proper.
The petitioner No. 1 Md. Nazrul Islam along with 27 others are all citizens of Bangladesh having permanent addresses shown in the cause title of the Writ petition.
The respondent No. 1 is the Secretary, Ministry of Local Government, Rural Development and Co-operatives, Local Government Division, Bangladesh Secretariat Building, Shahbagh, Dhaka-1000, respondent No. 2 is the Secretary, Ministry of Establishment Bangladesh Bridge Division, Bangladesh Secretariat Building, Shahbagh, Dhaka-1000, respondent No. 3 is the Secretary, Ministry of Information and Technology, Bangladesh Secretariat
Building, Shahbagh, Dhaka-1000, respondent No. 4 is the Secretary, Ministry of Finance, Bangladesh Secretariat Building, Shahbagh, Dhaka-1000, respondent No. 5 is the Deputy Secretary, Ministry of Local Government, Rural Development and Co-operatives, Local Government Division, Bangladesh Secretariat Building, Shahbagh, Dhaka-1000, respondent No. 6 is the Deputy Commissioner, Chandpur, respondent No. 7 is the Upozilla Nirbahi Officer, Upozilla- Motlab South, Chandpur, respondent No. 8 is the Upozilla Nirbahi Officer, Upozilla- Kachua, Chandpur, respondent No. 9 is the Upozilla Nirbahi Officer, Upozilla- Haimchor, Chandpur, the respondent No. 10 is the Upozilla Nirbahi Officer, Upozilla-Hajigonj, Chandpur, respondent No. 11 is the Upozilla Nirbahi Officer, Upozilla-Motlab North, Chandpur, respondent No. 12 is the Upozilla Nirbahi Officer, Upozilla- Shahrasti, Chandpur, respondent No. 13 is the Upozilla Nirbahi Officer, Upozilla- Faridgonj, Chandpur and the added respondent Nos. 14-41 are the citizens of Bangladesh having permanent addresses shown in the cause title of the Writ petition.
The petitioners case inter alia is that all the petitioners have the requisite to be appointed in the post of “Accounts Assistant Cum- Computer Operator” in the concerned Union Parishad and are also entitled to be absorbed/transferred in service to the revenue budget and regularize their service under the revenue budget with regular appointment as “Accounts Assistant Cum-Computer Operator” in the respective Union Parishad with salary and all other benefits from the date of their original agreement of appointment. The petitioners in the writ petition stated their qualification in separate para and they also claim that they joined in the concerned Union Parishad . That since the date of their joining in the said capacity as Entrepreneur of Union Digital Centre (UDC) the petitioners have been working till today in their respective union as Account Assistant Cum-Computer Operator. That the petitioners and others by working hard made the largest web
portal in the world and they are also giving benefits of information technology to the people of Bangladesh. In this way they are executing the Digital Bangladesh program and for that reason World Summit for Information Society (WSIS) gave award to the Government of the people’s Republic of Bangladesh in the year of 2014-2015. That although the petitioners are serving in the said capacity with full satisfaction of all the concerned authorities, all on a sudden the respondent No. 6 published appointment notice on 07.09.2021 by memo No. 46.42.1300.030.04.008.21-556 dated 07.09.2021 and accordingly petitioners applied for the said post. Written examination and interview card was issued in faovur of the applicants except these petitioners. That written examination of the said post of “Accounts Assistant Cum-Computer Operator” would be held on 26.11.2021. That the petitioners have crossed the limit of age to get Government Job. If the Government appoints anybody instead of the petitioners the petitioners will face serious hardship with their family members. That most of the petitioners have served for more than 5 years in the project and it is the legitimate expectation of the petitioners to be absorbed in the revenue budget with effect from the date of their joining. That petitioner No. 1 and another filed an application to the respondent No. 6 praying to give priority to them by reducing conditions on 11.11.2021 with a list of entrepreneur and an amended circular issued by Deputy Commissioner, Borguna. That in identical matter writ petition has been filed before the High Court Division and thereafter Rule was disposed of by judgment and order and against the said judgment civil petition No. 3607 of 2017 and Civil Petition No. 452 of 2018 have been filed and the Appellate Division disposed of the said Civil Petitions with observation on 10.12.2017 and 05.02.2018 respectively. Therefore the petitioner’s case is that the respondent invited for an application for appointment of Union Porishad post of “Accounts Assistant Cum-Computer Operator” issued by the respondent appointment notice under memo No. 46.42.1300.030.04.008.21-556 dated 07.09.2021 is without lawful authority, hence the petitioners filed the writ petition.
Learned Advocate Mr. Ruhul Quddus Patwary appeared on behalf of the petitioners while learned Advocate Mr. Md. Ashraful Alam appeared for the respondent No. 1. Larned D.A.G Mr. Nood Us Sadik appeared for the respondent Nos. 2-13 and Mr. Md. Akteruzzaman, learned Advocate appeared for the respondent Nos. 14-41.
Learned Advocate for the petitioners submits that the impugned noticed issued by the respondents are without lawful authority. In elaborating his submission he asserts that all the petitioners have been working in the concerned Union Parishad since several years and they have already crossed the age limit for application for other government jobs. He agitates that therefore since the petitioner have been working under the Union Parishad since several years, it is a legitimate expectation and fundamental right of the petitioners that their services be absorbed to the revenue budget in the post of “Accounts Assistant Cum-Computer Operator” in the respective Union Parishad. He submits that although the petitioners have been serving in the Union Parishad since several years therefore it is the
respondent’s duty to absorb them in the revenue budget. He agitated that however the respondents without affording any chance to the petitioners to regularise their service under the revenue budget issued the impugned appointment notice for application in the post of “Accounts Assistant Cum-Computer Operator”. He concludes his submission upon assertion that the impugned memo depriving the petitioners of their fundamental right to regularize their service is unlawful and the Rule bears merits ought to be made absolute for ends
of justice.
On the other hand learned Advocate for the respondent No. 1 vehemently opposes the Rule. He submits that the petitioners do not have any locus-standi to file the instant writ petition since they are not employees and therefore are not in service in the republic. He submits that it is admitted in the writ petition that they are Entrepreneurs in Union Digital Centre which is under the social scheme of the government with the objective of reducing unemployment and promoting small business among the unemployed. He submits that the petitioners categorically as Entrepreneurs are conducting independent business while also making profits there from. He contends that the petitioners are not at all entitled to be absorbed in the revenue budget
of the republic. He submits that relevant laws and rules clearly state the status and position of Entrepreneur as stated in the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um which is annexed as annexure A-1. He takes us to clause 4.4 and submits that clause 4.4 clearly states that the instant writ petitioners including any other person who might be rendering service in the same manner are ÙÛ¡e£u E−cÉš²¡ (local
Entrepreneur). He contends that upon a plain reading clause No. 4.4 of
the the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um it appears that it
is clearly stated in the said clause 4.4 that the local entrepreneurs who
are serving under the Entrepreneur of Union Digital Centre (UDC)
shall not be appointed as employees of the Union Parishad. He
submits that clause No. 4.4 clearly contemplates that they are service
providers and will receive consideration from the users. He next
draws attention to clause 4.5 of the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um wherefrom he submits that clause 4.5 also clearly contemplate that the instant writ petitioners are Entrepreneur (E−cÉš²¡)
who had been afforded the opportunity to provide service under a
scheme promoted by the government with the objective of reducing unemployment. He next points out to clause 4.6 wherefrom he
submits that clause 4.6 categorically state the responsibility and duty
of the petitioners by way of being entrepreneur. He particularly points
out that clause 4.6 inter alia categorically state that the instant writ petitioners all fall under the description of service provider “ SeNe−L abÉ−ph¡ fÐc¡e Ll¡ ” He submits that they are not at all employed by the
Union Parishad, and contends that it is also beyond the scheme of the
manual therefore the instant petitioners being independent service
providers have no locus standi to file the writ petition. He concludes
his submission upon assertion that the Rule bears no merit ought to be discharged for ends of justice.
Learned D.A.G on behalf of the respondent Nos. 2-13 substantively supports the argument of the learned Advocate for the
respondent No. 1 and concludes his submission upon assertion that the
Rule bears no merit ought to be discharged for ends of justice.
Learned Advocate for the added respondent Nos. 14-41 also
appeared in this matter by way of filing an affidavit in opposition. He
also supports the contention of the learned Advocate for the
respondent No. 1 and concludes his submission upon assertion that the
Rule bears no merit ought to be discharged for ends of justice.
We have heard the learned Advocate for both sides, perused the
application and materials on records. The 28 petitioners, herein
challenged the appointment notice issued by the respondent No. 6
inviting applications for appointment of Union Parishad “Accounts
Assistant Cum-Computer Operator” which impugned noticed is
annexed as annexure-T.
Since it is the respondent’s contention that the instant
petitioners have no locus standi at all to file the writ petition therefore
before going into other issues we are inclined to examine the issue of
locus standi. Admittedly the petitioners are entrepreneurs under the
entrepreneur scheme and which have been clearly admitted in the writ
petition. For proper disposal of the instant Rule we have particularly
examined the objective of the said entrepreneur as the petitioners are
admittedly entrepreneur. Although the petitioners at some stage claim
that they are in service of the respondents but however they could not
substantiate their claim by any other cogent argument nor documents.
Upon examination of Annexure A-1 which is the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um we have particularly examined clause 4.4, 4.5 and 4.6 of the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um. Clause 4.4 of the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um is reproduced below:
“4.4 ÙÛ¡e£u E−cÉ¡š²¡:
L¢ÇfEV¡l hÉhq¡−ll e§eÉaj d¡le¡ l−u−R Hm¡L¡l Hje ¢n¢ra k¤hL−cl jdÉ ®b−L E−cÉš²¡ ¢ehÑ¡Qe Ll−a q−hz a−h j¢qm¡ Hhw ®hL¡l
k¤hL−cl A¡NË¡¢dL¡l ¢c−a q−hz CEBCHp¢p f¢lQ¡me¡ L¢j¢V p¤¢e¢cÑø e£¢aj¡m¡l B−m¡−L E−cÉš²¡ ¢ehÑ¡Qe Ll−hz CEBCHp¢p f¢lQ¡me¡u c¡¢uaÅfСç E−cÉš²¡NZ CE¢eue f¢lo−cl ¢e−u¡NfСç LjÑQ¡l£ q−he e¡z CEBCHp¢p ÙÛ¡f−el ®j¡V Ml−Ql HL¢V Awn a¡l¡ fÐc¡e Ll−hez ¢h¢ej−u a¡l¡ CEBCHp¢p ÙÛ¡f−el flhaÑ£ ¢ae hRl CEBCHp¢p ®b−L
fСç Bu ¢e−Sl¡ NËqZ Ll−hez ¢ae hRl fl E−cÉš²¡ J CE¢eue f¢lo−cl f¡lØf¡¢lL ü¡bÑ ¢h−hQe¡u ®l−M CE¢eue f¢loc Bu-hÉ−ul
h¾Ve e£¢aj¡m¡ ¢edÑ¡le Ll−hz”
Upon perusal and examination of clause 4.4 it is clear that it is a
scheme taken up by the government to reduce unemployment. Clause 4.4 of the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um clearly states that “CEBCHp¢p f¢lQ¡me¡u c¡¢uaÅfСç E−cÉš²¡NZ CE¢eue f¢lo−cl ¢e−u¡NfСç
LjÑQ¡l£ q−he e¡z” . Therefore CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um in clear language state that no entrepreneur will be considered
as employees of the Union Parishad and consequently they are not
employees under the service of the republic. The language of clause 4.4 of the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um clearly implies and indicate that they will be service providers in lieu of consideration from general public. We have also examined clause 4.5 which are the conditions under which the entrepreneurs shall provide
their services. Next we have examined clause 4.6 which states the
duty and the duty of the local entrepreneur. Serial No. 2 of clause 4.6 clearly states that the duty of the entrepreneur shall be “SeNe−L abÉ−ph¡ fÐc¡e Ll¡” . Therefore it is clear from the language and the scheme of the CE¢eue abÉ ®ph¡ ®L¾cÐ (CEBCHp¢p) h¡Ù¹h¡ue jÉ¡e¤−um t at these petitioners are not employees of the Union Parishad and consequently they are not service holders and are not in service of the republic. They are rather entrepreneurs patronized by the government and they are service providers in lieu of consideration.
Upon examination into the materials and after hearing the learned Advocate for both sides, particularly upon perusal of Annexure- A1 we are of the considered view that the petitioners are entrepreneurs by way of being service providers upon receiving consideration /money and they not employees of the Union Parishad and not in service of the Government/ Republic.
Therefore we are in agreement with the learned Advocates for the respondents that the instant petitioners do have any locus standi to file the writ petition.
Under the facts and circumstances and the hearing of the learned Advocates for both sides we do not find any merit in this Rule since the writ petitioners has no locus standi to file the writ petition.
In the result, the Rule is discharged without any order as to costs.
Communicate this judgment at once.
(Kashefa Hussain,J)
I agree
(Kazi Zinat Hoque,J)
Arif(B.O)