IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 7687 OF 2022

IN THE MATTER OF:

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

-AND -

IN THE MATTER OF:

Dr. Md. Shahidul Islam and others

        ... Petitioners -VS-

The Secretary, Ministry of Education, Government of the People’s Republic of Bangladesh and others.

.......Respondents Mr. A.B.M. Altaf Hossain, Senior Advocate, with

Mr. Md. Abul Kasem,

Mr. A.H.M. Anamul Haque, and

Mr. Md. Arif Chowdhury, Advocates

…..For the Petitioners

Mr. A.M. Amin Uddin, Senior Advocate, with

Mr. Yousuf Khan Rajib,

Mr. Ahmed Ishtiaque

Mr. Izmet Nashra Khan, Advocates … For the respondent Nos. 4, 5 and 9

   Present:

Mr. Justice Zafar Ahmed

      And

Mr. Justice Khandaker Diliruzzaman

Heard on : 18.10.2023, 01.11.2023 and 16.11.2023.

Judgment on : 13.12.2023.

Zafar Ahmed, J.

In  the  instant  writ  petition,  the  petitioners  have challenged  the  Memo  being  ew-¢hHpHjHjCE/2009/9013 dated 07.10.2009  (Annexure-G)  issued  under  the  signature  of  the respondent No. 9 communicating the decision of the Syndicate of  the  Bangabandhu  Shiekh  Mujib  Medical  University (BSMMU)  taken  in  its  33rd  Syndicate  meeting  held  on 14.09.2009 cancelling the decisions taken by the Syndicate in its  5th  meeting  dated  24.06.1999,  10th  meeting  dated 31.08.2000, 23rd meeting dated 27.06.2006, 25th meeting dated 27.05.2007  and  28th  meting  dated  26.06.2008  and  thus, excluding the criteria of posting ( to the post of Assistant Professor/Consultant  with  self-salary  ( )  and  thereby curtailing  the  substantial  vested  right  of  the  petitioners  in respect of posting to the post of Assistant Professor, so far as it relates  to  the  petitioners.  They  have  further  prayed  for  a direction upon the respondents to post the petitioners to the post of Assistant Professor in compliance with the decision taken in the 28th Syndicate meeting (decision in respect of agenda No. 5) dated 26.06.2008 of the BSMMU (Annexure-F).

This Court, on 30.06.2022, issued a Rule Nisi.

Thereafter,  on  an  application  of  the  petitioners,  this Court, on 02.02.2023, issued an additional Rule Nisi and passed an interim order as follows:

“Let an additional Rule Nisi be issued calling upon

the respondents to show cause as to why the recruitment Circular, vide  pÈ¡lL ew- ¢hHpHjHjCE/2023/748 dated 18.01.2023 (Annexure- M) issued under the signature of the respondent No. 9 published in the Daily Observer on 19.01.2023 inviting applications for the post of Professors, Associate Professors and Assistant Professor so far as it relates to the post of Assistant Professor mentioned

in Serial No. 3(M), 3(P), 3(Q), 3(S), 3(T), 3(U), 3(d) J 3(e) of the impugned recruitment circular should not

be declared to have been passed without lawful authority and is of no legal effect and/or pass such

other or further order or orders as to this Court may

seem fit and proper.”

Pending hearing of the Rule, the respondents are restrained by an order of injunction from recruiting

any person to the post of Assistant Professor for a period of 6(six) months from date.

Meanwhile, let the operation of the recruitment Circular vide  pÈ¡lL ew-¢hHpHjHjCE/2023/748 a¡¢lMx 18/01/2023Cw  (Annexure-M) issued under the signature of the respondent No. 9 so far as it relates

to the Serial No. 3(M), 3(P), 3(Q), 3(S), 3(T), 3(U), 3(d)

J 3(e) (total 13 posts) of the impugned recruitment circular dated 18.01.2023 be stayed for a period of 6(six) months from date.”

Challenging the interim order, the respondent BSMMU filed Civil Petition for Leave to Appeal No. 965 of 2023. The Apex Court, vide order dated 11.06.2023 disposed of the civil petition directing this Bench to dispose of the Rule. The Apex Court stayed the interim order till disposal of the Rule.

The respondent Nos. 4, 5 and 9 (BSMMU, its Vice- Chancellor and Registrar) contested the Rule jointly and filed an affidavit-in-opposition.

It is stated in the writ petition that the petitioners are Medical Officers of the BSMMU except petitioner No. 16 who is a Research Assistant and petitioner Nos. 12, 17, 31, 32 and 35 who are Consultants. The petitioners have good service records and have gathered enough experience as well as developed sufficient skills and ability in the field concerned. They have been regularly conducting classes of medical students of the BSMMU.

It is further stated that the petitioners were appointed by the concerned authority of the BSMMU through the recruitment circulars between the periods from 08.02.2002 to 14.06.2006 (Annexures A to A-124 and M to M-74). The authority, as per its Rules, appointed them as Medical Officers and Research Assistants. They were made permanent in their respective posts and now, they have been discharging their duties with utmost sincerity.

It is further stated that the BSMMU is a Public Medical University of the country. It bears the heritage to the Institute of Postgraduate  Medical  Research  (IPGMR)  which  was established  in  December  1965.  In  the  year  1998,  the Government converted the IPGMR into a Medical University for expanding the facilities for higher medical education and research  in  the  country.  It  has  an  enviable  reputation  for providing  high  quality  postgraduate  education  in  different specialties.  The  BSMMU  is  only  medical  specialized University  of  Bangladesh  and  a  statutory  body  which  is established  under  section  4  of  the   (in short, the ‘Act, 1998’). There are also several Rules and Ordinances made by the BSMMU authority being authorized by section 42 of the said Act.

It is further stated that after converting the IPGMR to the BSMMU, the Registrar of the BSMMU issued a circular dated 19.07.1999 (Annexure-B) containing the decision No. 3 of the 5th  meeting  of  the  Syndicate  of  the  BSMMU  held  on 24.06.1999.  The  relevant portions of the said Memo  run as follows:

“

”

Before  establishment  of  the  BSMMU,  the  post  of Medical Officer existed in the then IPGMR. The holders of the said  post  were  absorbed  into  the  BSMMU  by  the  above- mentioned  decision  of  the  Syndicate  and  they  were  also promised to be appointed to the post of Assistant Professor with certain terms and conditions.

It is further stated that the petitioners were appointed as Medical  Officers  with  the  same  facilities  given  under  the circular  dated  19.07.1999  (Annexure-B).  Thereafter,  the Syndicate  in  its  10th  meeting  dated  31.08.2000  decided  to appoint Medical Officer with the conditions that after obtaining the required degree they would be posted as Assistant Professor with the same salary received as Medical Officer.

Thereafter, the respondent No. 9 issued an office order dated  31.11.2006  (Annexure-C)  stating:  

It  is  stated  that  the  University  authority  constituted  a committee for recommendation in respect of posting ( of the Medical Officers. The Syndicate in its 25th meeting held on 27.05.2007 (Annexure-D) decided as follows:

“

”

It  is  stated  that  on  26.06.2008  the  Syndicate  of  the BSMMU  in  its  28th  meeting  (Annexure-F)  again  took  the

decision,  “

On 14.09.2009, the Syndicate of the BSMMU in its 33rd meeting decided to cancel all the previous decisions in respect of  “ ”  (posting)  of  the  Medical  Officers  to  the  Post  of Assistant Professor/Consultant with the same Salary received as Medical Officer which was published under the signature of the respondent No. 9, vide the impugned Memo dated 07.10.2009 (Annexure- G).

It is further stated that most of the petitioners individually applied to the University authority for posting to the post of Assistant  Professor  by  cancelling  the  office  order  dated 07.10.2009, but the University authority did not pay any heed to the  matter.  Later  on,  the  University  authority  assured  the petitioners that they would reconsider the decision contained in the office order dated 07.10.2009. Subsequently, on 08.09.2016, the University authority posted 45 Medical Officers to the post of Consultant (Annexure-I4) as per the decision of the 25th Syndicate meeting dated 26.06.2008, though the said decision was cancelled as evident from the office order dated 07.10.2009, but the University authority kept silent in respect of the case of the petitioners.

Thereafter, on 01.12.2019 and 14.01.2020, the petitioners made separate representations to the University authority reiterating their demand for posting them to the post of Assistant Professor. On receipt of the said representation, the Syndicate in its 76th meeting formed a 5-member committee and the same was communicated, vide office order dated 04.02.2020, but no steps have been taken by the said committee as yet. Thereafter, there being no other alternative way, the petitioners filed the instant writ petition.

It is stated in the writ petition that at present the petitioners receive their salaries in Grade 6 which is equivalent to the post of Assistant Professor. Moreover, they are holding the post of Medical Officer, but they perform their duties of Assistant Professor. They conduct classes of medical students

in various disciplines of the BSMMU. It is categorically stated in the writ petition that if the petitioners are posted ( as Assistant  Professor,  they  would  not  disturb  any  person promoted or posted earlier in the same post and they would not claim any extra salary as Assistant Professor, rather they would perform their functions as usual.

The specific case of the respondent BSMMU is that the Syndicate  being  the  highest  decision  making  body  has  the authority to cancel its previous decision. The further case of the BSMMU  is  that  the  petitioners  already  took  part  in  the appointment process initiated and completed on the basis of impugned decision of the Syndicate and being unsuccessful, they have filed the instant writ petition which is barred by the principles of estoppel as well as ‘quod approbo non reprobo’.

Mr.  A.M.  Amin  Uddin,  the  learned  Senior  Advocate appearing for the respondent BSMMU, at the outset, submits that  the  impugned  circular  (Annexure-G)  was  issued  on 07.10.2009 but the petitioners filed the instant writ petition in 2022  that  is  after  a  long  delay  of  almost  13  years  and  no satisfactory  explanation  has  been  given  for  such  inordinate delay in filing the writ petition. The learned Advocate submits that on this point the Rule is liable to discharged.

In reply, Mr. A.B.M. Altaf Hossain, the learned Senior Advocate appearing for the petitioners, submits that the factual matrix which caused the delay in filing the writ petition has been explained in the writ petition and the same has not been controverted in the affidavit-in-opposition. He further submits that it is settled  principle of law that there is no  period  of limitation in judicial review. In support of the contention, the learned Advocate refers to the case of Siddique Ahmed Vs. Government of Bangladesh and others, 65 DLR (AD) 8 (para

177), wherein the Appellate Division held:

“...The plea of waiver or acquiescence is not available in respect of violation of any law. If it is violated, the Court is bound to say so, no matter when it is raised. There is no period of limitation, no waiver, no acquiescence in this respect.”

M/s. Dehri Rohtas Light Railway Company Ltd. vs. District Board, Bhojpur and others, AIR 1993 SC 802, the Indian Supreme Court held:

“The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how the delay arose. The principle on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is reasonable explanation of the delay. The real test to determine delay in such cases is that the petitioner should come to the writ Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not to physical running of time. Where the circumstance justifying the conduct exists, the illegality which is manifest cannot be sustained on the sole ground laches. ... That being the case, the claim of the appellant cannot be turned down on the sole ground of delay. We are of the opinion that the High Court was wrong in dismissing the writ petition in limine and refusing to grant the relief sought for.”

In the instant case, we are of the view that the delay of 13 years in filing the writ petition is well explained and the cause of delay cannot be attributed to the petitioners. Therefore, the delay should not stand in the way of assessing the merit of the case.

Mr. A.M. Amin Uddin next submits that since the petitioners had already participated in the appointment process initiated and completed on the basis of the impugned decision

of the Syndicate and they became unsuccessful and as such, the writ petition is hit by the principles of estoppel, waiver, acquiescence as well as quod approbo non reprobo meaning one cannot approbate and reprobate at the same breadth. In reply, Mr. Altaf Hossain submits that admittedly the petitioners participated in the recruitment process which was initiated based on independent circular for appointing to the post of Assistant Professor. The petitioners have filed this writ petition praying for inter-alia posting to the post of Assistant Professor. He further submits that the recruitment circulars and posting are totally different issues and there is no nexus between them. Therefore, the submission advanced by the respondent- BSMMU in respect of waiver/estoppel/acquiescence and quod approbo non reprobo has no leg to stand. Considering the facts and circumstances of the case, we find force in the submissions of Mr. Altaf Hossain appearing for the petitioners.

So far as the merit of the writ petition is concerned, the learned Senior Advocate appearing for the petitioners submits that in spite of cancellation of the decisions dated 24.06.1999, 27.05.2007 and 26.06.2008 respectively taken by the Syndicate in its 5th, 25th and 28th meeting regarding posting of Medical Officers and other officers holding equivalent post to the post of Assistant Professor, the BSMMU, vide office order dated 08.09.2016 (Annexure-I4) posted 45 Medical Officers to the post of Consultant. However, the petitioners were left out of consideration which is discriminatory under Article 27 of the Constitution. The learned Advocate prays for passing an order directing the respondents to treat the petitioners equally and to post them to the post of Assistant Professor in light of the office order dated 08.09.2016 (Annexure-I4). The learned Advocate points out that the case of the petitioners stands on the same footing as that of 45 Medial Officers who are beneficiaries of the office order in question.

It is recalled that the present petitioners were appointed as Medical Officers and Consultants in the BSMMU between the  periods  from  2002  to  2006.  The  BSMMU  issued  a notification dated 19.07.1999 (Annexure-B) under the caption,

It  is

mentioned at paragraph No. 4 of the said notification,

A committee  was  formed  to  make  recommendations  regarding

posting the holders of Medical Officer/equivalent post to the post  of  Assistant  Professor.  The  recommendations  were discussed in the Syndicate’s 28th meeting held on 26.06.2008, wherein it was decided as follows:

We further recall that the Syndicate in its 33rd meeting held on 14.09.2019 cancelled the earlier decisions taken in its 5th, 10th, 23rd, 25th and 28th meetings so far as they relate to

. In spite of the said  decision  taken  in  33rd  meeting  of  the  Syndicate,  the BSMMU,  vide  office  order  dated  08.09.2016  (Annexure-I4) posted 45 Medical Officers to the post of Consultant subject to the following terms and conditions:

“

”

It appears from the above that the BSMMU authority did not  follow  the  33rd  Syndicate’s  decision  and  posted  other Medical Officers to the next higher post but the petitioners were left  out  of  consideration  without  assigning  any  reason whatsoever. It further appears that the case of the petitioners stands on the same footing as that of Medical Officers who are beneficiaries of the decision taken by the BSMMU authority. We have no hesitation to hold that the petitioners have been discriminated which offends Article 27 of the Constitution. The learned Senior Advocate appearing for the BSMMU could not lay  his  hands  in  the  matter  of  discrimination  done  to  the petitioners.

In  view  of  the  foregoing  discussions,  the  respondent BSMMU  is  hereby  directed  to  consider  the  case  of  the petitioners  for posting ( )  them to  the post  of Assistant Professor  in  accordance  with  the  terms  and  conditions contained  in  paragraph  No.  4  of  the  notification  dated 19.07.1999  (Annexure-B)  and  office  order  dated  08.09.2016 (Annexure-I4) i.e.

“

”

The respondents must not sit idle over the matter and take the decision as early as possible within a reasonable period of time preferably  within  4  (four) months  from the date of receipt of the judgment and order.

The application for addition of party dated 05.11.2023 filed  by  Mr.  Kazi  Muhammad  Kamrul  Islam,  Research Assistant, Department of Hematology, BSMMU as petitioner No. 45 is allowed. Office is directed to allow the applicant as petitioner No. 45 and amend the cause title of the writ petition accordingly.

With the above observations and directions, the Rule is disposed of.

Khandaker Diliruzzaman, J.

I agree.

Arif, ABO