IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

PRESENT:

Mr. Justice Md. Rezaul Haque.

Mr. Justice S.M. Emdadul Hoque.

Mrs. Justice Farah Mahbub.

CIVIL APPEAL NO.77 OF 2022.

(From the judgment and order dated 18.03.2021 passed by the High Court Division in Writ Petition No.5323 of 2016).

Bangladesh,  represented  by  the  Secretary,  Law

and Justice Division, Ministry of Law, Justice and

Parliamentary  Affairs,  Bangladesh  Secretariat,

Ramna, Dhaka-1000 and others.  :  ...Appellants.

-Versus-

Md.  Mahboob  Murshed,  Advocate,  High  Court  

Division, Supreme Court of Bangladesh, Apt#B6,

House No.11, Road No.5, Sector-6, Uttara, Dhaka-

1230 and others.  :  ....Respondents.

For the Appellants.

For the Respondents. Date of Hearing. Date of Judgment.

:     Mr. Mohammad Arshadur Rouf, Attorney General (in-charge) with Mr. Mohammad Aneek Rushd Haque,  Additional  Attorney  General,  Mr. Abdullah Al Mahmud, Deputy Attorney General, Mr. Eakramul Kabir, Assistant Attorney General, Mr.  ASM  Sayem  Bhuiyan,  Assistant  Attorney General and Mr. AKM Nazmul Hasan, Assistant Attorney General instructed by Mr. Haridas Paul, Advocate-on-Record.

:     Mr. Md. Mahboob Murshed, (in person)

:     04.03.2026, 05.03.2026 and 11.03.2026

:     11.03.2026.

J U D G M E N T

Farah Mahbub,J:

This Civil Appeal by Leave is directed against the judgment and

order  dated  18.03.2021  passed  by  the  High  Court  Division  in  Writ Petition No.5323 of 2016 making the Rule absolute-in-part. 

The respondent-writ petitioner, a judicial officer who joined Bangladesh Judicial Service in December, 1991 as an Assistant Judge, tendered his resignation on 31.01.2011 after completing 19 (nineteen) years of service while he was serving the post of Additional District Judge. Accordingly, he applied to the concerned authority of the Ministry of Law, Justice and Parliamentary Affairs for pension in view of Memo no.Ag (wewa-1) Zwc-28/85/106 dated 04.11.1989, issued by the Finance Division, Ministry of Finance, Government of Bangladesh. His prayer was duly approved by the said Ministry vide Memo no.10.00.0000.128. 013.01.2015-365 dated 02.03.2015 (Annexure-A to the writ petition) for being entitled to 61% pension having completed 19 (nineteen) years of pensionable service period.

The cause of action arose when the writ respondent no.5, Audit and Accounts  Officer,  Finance  Division,  Ministry  of  Finance  vide  the impugned Memo no. wmGI/AvBb I wePvi/‡cb dated 25.03.2015 (Annexure-B to the writ petition) returned back the pension offer of the respondent-writ petitioner.

The impugned memo dated 25.03.2015 is quoted below for cursory

glance:

ÒMYcÖRvZš¿x evsjv‡`k miKvi

cÖavb wnmve iÿY Kg©KZ©vi Kvh©vjq

AvBb, wePvi I msm` welqK gš¿Yvjq

wmwRG feb, (5g Zjv)

‡m¸b evwMPv, XvKv-1000|

¯§viK bs-wmGI/AvBb I wePvi/‡cb/   ZvwiLt 25.03.2015 wLªt

eivei,

mwPe

AvBb, wePvi I msm` welqK gš¿Yvjq

AvBb I wePvi wefvM

evsjv‡`k mwPevjq, XvKv|

`„wó AvKl©Yt- wmwbqi mnKvix mwPe, wePvi kvLv-4|

welqt- GKKvjxb †cbkb I Avby‡ZvwlK gÄyix cÖm‡½|

m~Î bs- Zvnvi ¯§viK bs-10.00.0000.128.013.01.2015-365 ZvwiLt 02.03.2015wLªt

DcwiD³ welq I m~‡Îi †cÖwÿ‡Z Avw`ó n‡q Rvbv‡bv hv‡”Q †h, wb¤œwjwLZ Kvi‡Y AvBb Kwgk‡bi Aemi cÖvß g~L¨ M‡elYv Kg©KZ©v(AwZwi³ †Rjv RR) Rbve †gvt gvg nev‡k y© e ‡` Gi †cbkb

†KBmwU †dir cÖ`vb Kiv n‡jv|  

1| miKvix PvKzix n‡Z c`Z¨vM Ki‡j c~e©PvKzixKvj ev‡Rqvß n‡e A_©vr †cbk‡bi Rb¨ †hvM¨ n‡e bv (we, Gm, Avi 1g L‡Ûi wewa-300 †mKkb-3)|

2|  Av‡jvP¨ †ÿ‡Î †cbkbv‡ii PvKyix Kvj 25 eQi c~Y© nqwb Ges wZwb 25 eQi PvKzix Z c~w© mv‡c‡ÿ mswkøó weav‡bi Av‡jv‡K †cbk‡bi Rb¨ †Kvb Av‡e`b K‡ib bvB weavq †cbkb cÖvß b‡nb (Mb Kg©Pvix Aemi AvBb 1974 Gi 9 aviv)|

3|  †cbkb gÄyiKvix KZ…©cÿ †Kvb wewa weavb Abyhvqx †cbkb g‡ Äi‡ yQ ib   KZv gÄyix c‡Î D‡jøL

bvB|

¯^vt/

(dviæK Avn¤§ )

wbixÿv I wnmve iÿY Kg©KZ©v

‡dvbt 58310598|

¯§viK bs-wmGI/AvBb I wePvi/‡cb/1107(2)        ZvwiLt 25.03.2015 wLªt

AeMwZ I cÖ‡qvRbxq e¨e¯’v MÖn‡Yi Rb¨ Abywjwc †cÖiY Kiv n‡jv| 1| mwPe, AvBb Kwgkb, 15 K‡jR †ivW, XvKv|

2| Rbve †gvt gvneye ‡gv‡k©`, Aemi cÖvß g~L¨ M‡elYvKg© KZ©v(AwZwi³ †Rjv RR)     G¨vcvU©‡g›U-we-6, evmv bs-11, moK bs-5, †m±i-6, DËiv, XvKv|

3| Awdm Kwc|

 (dviæK Avn¤§ )

wbixÿv I wnmve iÿY Kg©KZ©v

‡dvbt 58310598|Ó

Being aggrieved, he filed Writ Petition No.5323 of 2016 before the
High Court Division under Article 102 of the Constitution of the People‟s
Republic  of  Bangladesh  (in  short,  the  Constitution)  challenging  the
constitutional  validity  of  Rule  300  of  the  Bangladesh  Service  Rules      (in short, BSR), Part-I along with Memo no. CAO/Ain O Bichar/Pen
dated 25.03.2015 issued by the writ respondent no.5, with a prayer for
direction to provide all pensionary benefits to him in view of Memo no.
10.00.0000.128.013.01.2015-365 dated 02.03.2015 issued by the Ministry

of  Law,  Justice  and  Parliamentary  Affairs,  writ  respondent  no.1, whereupon a Rule Nisi was issued by the said Division. 

The moot question being raised in that writ petition is, when the service of the writ petitioner, a judicial officer, has been put to an end consequent to his resignation, can he claim pension having rendered 19 (nineteen)  years  of  service.  Further  issue  being  raised  by  the  writ petitioner is that in view of Rule 300(a) if the service holder resigns from his post his past service shall be forfeited, which is violation of Articles 27 and 31 of the Constitution. In that regard, the core contention of the writ petitioner is that in Rule 300(a) the context of resignation of a person having clean record of service has been put at par with the context of dismissal or removal of a person which entails misconduct or insolvency or  inefficiency,  as  the  case  may  be;  hence,  offends  the  principles  of equality  clause  guaranteed  under  Article  27;  it  also  fails  the  test  of reasonableness and is tantamount to non-compliance with the right to be treated in accordance with law, as guaranteed under Article 31 of the Constitution.  In  that  view  of  the  matter  Rule  300(a)  is  liable  to  be knocked down as being ultra vires the Constitution.

The High Court Division accepting the said proposition of the writ petitioner  declared  Rule  300(a)  of  the  BSR,  Part-I  ultra  vires  the Constitution with the findings that forfeiture is a form of punishment occasioning loss of some valuable right to property. However, applying Rule 300(a) for two categories of persons said Division goes to observe, inter alia, “To put it plainly, an employee with an unblemished service record is being treated on the same scale as an employee who has been found guilty of some misdemeanor and therefore dismissed from service. It is apparent that two different categories of persons are being subjected to the very same treatment, although there is a gross distinction between „resignation‟ and „dismissal‟...........”

To fortify the above findings said Division further observed that prior to dismissal or removal the person concerned passes through due process  of  law,  i.e.,  show  cause  notice,  departmental  enquiry,  with opportunity of personal hearing, whereas, in case of resignation from service, a person loses his right to pension, without any show cause notice or holding any enquiry; hence, is tantamount to non-compliance with the right to be treated in accordance with law, as guaranteed under Article 31 of the Constitution. The High Court Division also goes to find that putting two classes of persons, i.e., persons resigning from service and persons being  dismissed  from  service  in  the  same  bracket  tantamounts  to punishing a person although he has not committed any offence. This is a violation  of  equality  clause,  guaranteed  under  Article  27  of  the Constitution. Accordingly, said Division made the Rule absolute in part declaring Rule 300(a) of BSR, Part-I ultra vires the Constitution so far as it  relates  to  “forfeiture  of  pension  in  the  event  of  resignation  from service.”

Consequently, impugned Memo no. CAO/Ain O Bichar/Pen dated 25.03.2015 issued by the writ respondent no.5 returning the pension case of the writ petitioner, has been declared to have been issued without lawful authority and hence, of no legal effect with direction upon the appellants-writ respondents to calculate and grant the pension and other benefits  to  the  respondent-writ  petitioner  within  a  prescribed  period basing on his length of service.

The  Government,  i.e.  writ  respondent  nos.1,  2,  3  and  4  being aggrieved by this judgment and order filed Civil Petition for Leave to Appeal  No.2379  of  2021  before  this  Division,  whereupon  leave  was granted on 4(four) different counts.  

Mr.  Mohammad  Arshadur  Rouf,  learned  Attorney  General  (in- charge) with Mr. Aneek R. Haque, learned Additional Attorney General on behalf of the appellants submits that, the High Court Division committed a manifest error of law in declaring Rule 300(a) of the BSR, Part-I ultra vires the  Constitution,  so  far  as  it  provides  for  forfeiture  of  pension  upon resignation,  on  a  misinterpretation  of  Articles  27  and  31  of  the Constitution, notwithstanding the absence of any discriminatory treatment among similarly situated public servants who resigned prior to attaining

pension  eligibility  under  Section  9(1)  and  (2)  of  the  Public  Servants (Retirement) Act, 1974 (in short, the Act, 1974). The impugned declaration of the High Court Division, therefore, not only disregards the governing statutory  scheme  but  also  disrupts  the  settled  administrative  policy regulating retirement and entitlement of pension benefit in public service.

He further goes to argue that resignation operates as a voluntary and conscious severance of service, undertaken with full knowledge of its legal consequences, including forfeiture of past service for the purpose of pension. In such circumstances, no issue of denial of due process arises. The  High  Court  Division,  as  such,  erred  in  invoking  constitutional safeguards in a context where the consequences flow directly from the deliberate act of the employee. Also, he submits that the High Court Division fell into serious error in equating pension with other  service benefits  such  as  gratuity  or  provident  fund,  ignoring  the  distinct  and conditional nature of pension, which accrues only upon retirement under Section 4 or Section 9(1) and (2) of the Act, 1974. Hence, the respondent- writ petitioner, not having retired under any of the relevant statutory provisions and having failed to challenge their validity, is not entitled to pension  as  a  matter  of  law,  rather  such  entitlement  being  governed exclusively by the administrative policy of the executive regulating public service, in no manner, can be declared ultra vires the Constitution.

Accordingly, he submits that the impugned judgment and order of the  High  Court  Division  warrant  interference  and  the  appeal  may, therefore, be allowed.

Conversely, Md. Mahboob Murshed, in person for the respondent no.1 submits that, the High Court Division committed no error of law by declaring  the  impugned  portion  of  Rule  300(a)  of  the  BSR,  Part-I, unconstitutional, for, Section 9 of the Act, 1974 does not require maturity of  pension  entitlement,  nor  does  it  permit  forfeiture  of  past  service without due process. Resignation, being a voluntary act, cannot justify deprivation of accrued rights; consequently, any attempt to deny pension benefits without observing due process of law would be unlawful. More so,  he  submits,  Sections  4  and  9  of  the  Act,  1974  merely  regulate superannuation  or  optional  retirement  and  do  not  prescribe  exclusive conditions for pension accrual. Hence, the respondent was not obliged to challenge these provisions to obtain relief.

He also goes to argue that, resignation cannot be treated as equal to misconduct  or  criminal  act  so  as  to  justify  the  forfeiture  of  pension benefits accrued through years of service, thereby the confiscation of service  for  voluntary  resignation  is  inconsistent  with  constitutional safeguards. Also, the practical ramifications of such forfeiture would be absurd, potentially nullifying all the valid judicial acts done by the writ petitioner throughout his service period. Relying upon the decision as affirmed  in  Bangladesh  Krishi  Bank  Vs.  Meghna  Enterprises  and another:50DLR(AD)194, he submits that the impugned Rule 300(a) being inconsistent  with  fundamental  rights  must  yield  to  constitutional guarantees, and accordingly, the High Court Division  rightly held the same as ultra vires the Constitution.

Additionally,  as  he  contends,  the  requirement  of  due  process, including  show-cause  notices  and  departmental  enquiries,  apply  to dismissals, whereas resignation is voluntary and does not trigger such procedures. Thereby, without due process denying pension in such cases by forfeiting the service of the  respondent-writ petitioner contravenes constitutional protections and legislative intent.

Taking us through the circular dated 04.11.1989 and its subsequent amendments,  he  further  submits  that  the  High  Court  Division  rightly interpreted that the quantum of pension depends on the length of service as evident from the relevant circulars. Legislative instruments such as the Supreme Court Judges (Leave, Pension, and Privileges) Ordinance, 1982, and the ÒmiKvix PvKzix AvBb, 2018Ó (in short, Act, 2018), explicitly allow pension even in cases of resignation, reflecting a clear legislative and administrative intent to safeguard pension rights of public servants. In the absence  of  any  specific  law  on  pension,  the  pension  benefits  of  the respondent-writ  petitioner  were,  therefore,  lawfully  conferred  vide executive order in accordance with this legal and policy framework.

He next submits that Section 10 of the Public Servants (Retirement) Act, 1974 exhaustively specified the grounds for forfeiture of pension, and resignation was not one of them; hence, a benefit not withdrawn by primary legislation cannot be curtailed by subordinate law. This position is reinforced by Sections 50 and 53 of the Act, 2018, which expressly recognize  entitlement  of  pension  benefits  even  upon  resignation, reflecting  a  clear  legislative  intent  to  protect  accrued  benefits.  The continued executive inaction in framing pension provisions for judicial officers, despite the mandatory directions of this Division in the case of Secretary,  Ministry  of  Finance  vs.  Masdar  Hossain:52DLR(AD)  82 further necessitates recognition of such rights to uphold constitutional guarantees and principles of equity.

He also contends that the impugned Rule 300(a) stipulates only forfeiture of past service upon resignation and does not expressly provide for  forfeiture  of  pension;  therefore,  under  the  Golden  Rule  of Interpretation, the provision must be confined to its plain and ordinary meaning, without importing words or consequences not contemplated by the legislature. In the absence of an explicit exclusion, Rule 300(a) cannot be  interpreted  so  as  to  defeat  the  accrued  right  of  the  respondent  to pension benefits.

Accordingly,  he  submits  that  the  declaration  of  the  High  Court Division that Rule 300(a) is unconstitutional insofar as it purports to forfeit  service  upon  resignation  is  legally  sound,  constitutionally compliant, and in harmony with the legislative intent. Hence, the appeal challenging  this  decision  is  entirely  without  merit  and  should  be dismissed with costs.

In order to appreciate the respective arguments of both the parties it is necessary to first have a look at Rule 300(a) of the BSR, Part-1, which has been struck down by the High Court Division as being ultra vires the Constitution.

Rule 300(a) of BSR Part-I provides as under:

“300 (a): Resignation of the public service, or dismissal or  removal  from  it  for  misconduct,  insolvency, inefficiency  not  due  to  age,  or  failure  to  pass  a prescribed  examination  entails  forfeiture  of  past service.”

The aforesaid Rule, thus, provides that resignation of the public

service entails forfeiture of his entire past service, and consequently, he would not be qualified for pension benefit, as has also been opined by the appellant-writ respondent no.5 while issuing the impugned memo dated 25.03.2015.

According  to  Black‟s  Law  Dictionary,  11(eleventh)  Edition “pension” is a series of payments made by the government or by an employer as a retirement benefit to a person or the person‟s representation or beneficiaries for past services or some type of meritorious work done.

In Bangladesh Retired Government Employees Welfare Association and  others  Vs.  Bangladesh  represented  by  the  Secretary,  Ministry  of Finance and another, reported in 51 DLR (AD) 121, para-6, this Division

while elaborating the concept of “pension” goes to observe:

“Pension paid to the retired government employees is not a bounty paid by the State, but is an essential term and condition of service and is paid on consideration of the State's obligation not to leave the citizens rendering service during the useful span of life to penury in their old age. The very purpose of pension is to enable the retired government employees to live free from want, with decency, independence and self-respect and at a standard equivalent to the pre-retirement level.......”

Although  pension  is  not  a  bounty  but  is  earned  on  satisfactory completion of qualifying service and subject to the further consideration that the person concerned is not otherwise disentitled thereto: UOI VS. PD Yadav,(2002) 1SCC 405.

The cardinal issue which, thus, has cropped up for consideration is, whether  forfeiture  of  the  entire  past  service  for  “resignation”,  as incorporated in Rule 300(a), can be branded as “punishment”, for having been placed at par with the person whose past service is also forfeited for being dismissed or removed from service for misconduct, insolvency or inefficiency, as the case may be.

Every service conditions provide a terminal point when the tenure of employment comes to an end.

The service of the respondent-writ petitioner has been ended with

his resignation, which was duly accepted by the authority concerned. Fact

remains, at the relevant time the ÔÔevsjv‡`k RywWwmqvj mvwf©m (Kg©¯’j wba©viY, c‡`vbœwZ, QzwU gÄyix, wbqš¿Y, k„•Ljv-weavb Ges PvKzixi Ab¨vb¨ kZ©vejx) wewagvjv, 2007” (in short, Rules, 2007), framed under Article 133 of the Constitution, was

in operation.

However, Rule 9 of the Rules, 2007 provides that: 

“K‡g©i Ab¨vb¨ kZ©vejx|-

1.             mvwf©‡mi m`m¨‡`i K‡g©i kZ©vejx wba©viY Kwiqv Avjv v weavb cÖYxZ bv nIqv ch©šÍ Aemi MÖnY, †cbkb, fwel¨ Znwej Ges PvKzixi Ab¨vb¨ kZ©vejxi †ÿ‡Î miKv‡ii cÖ_g †kÖYxi [‡M‡R‡UW Kg©KZ©v MY¨ nB‡eb Ges D³] Kg©KZ©v‡`i †ÿ‡Î cÖ‡hvR¨ wewa-weavb [I myweavw ] mvwf©‡mi m`m¨‡`i †ÿ‡Î cÖ‡hvR¨ nB‡e|

2.             Dc-wewa(1) G hvnv wKQzB _vKzK bv †Kb, mvwf©‡mi m`m¨‡`i K‡g©i kZ©vejx wba©vi‡Yi ‡ÿ‡Î we`¨gvb my‡hvM-myweavw i nvwb NUvBqv ev

i` Kwiqv †Kvb weavb cÖYqb ev hvB‡e bv|Ó 

However, there was no separate Rules determining the terms and conditions of judicial service holders. Consequently, vide Rule 9 of the Rules, 2007 the terms and conditions of the Public Servants (Retirement) Act, 1974 (in short, Act, 1974) and other ancillary rules and regulations including  BSR,  Part-I,  were  made  applicable  for  the  judicial  officers including the respondent-writ petitioner.

In view of Section 4 of the Act, 1974 every public servant including the judicial officer shall retire from service on attaining the age of 57 years [now, 59 years pursuant to Section 43(1)(m) of ÔÔmiKvwi PvKwi AvBb, 2018ÕÕ, which came into operation on 14.11.2018].  

Vide Section 9(1) of the Act, 1974 on completion of 25 years of service he may opt to retire by giving notice in writing to the appointing authority  at  least  30(thirty)  days  prior  to  the  date  of  his  intended retirement. Conversely, the government is empowered to retire a public servant in public interest without assigning any reason whatsoever, on completion of his 25 years of service, i.e., before the stipulated date of retirement. In substance, under Section 9 there is a premature end of the relationship of the employer and employee before the employee reaches the prescribed age of retirement or superannuation.

Thus, retirement envisages three eventualities- firstly, a person who retired in terms of Section 4 of the Act, 1974; secondly, a voluntary retirement under the provision of Section 9(1) of the said Act; and thirdly, a compulsory retirement under Section 9(2) of the Act. None of those two provisions of law incorporate “resignation from service”, another form of ending service tenure without any stigma.

It is the established principle of service jurisprudence that pension is a retirement benefit embodies the character of regular payment to a public servant who is legally entitled to receive on attaining the age retirement and also, on retiring from service.

The  words  “resignation”  and  “retirement”  have  been  discussed eloquently with precision in the case of UCO Bank and others Vs. Sanwar Mal, (2004) 4 SCC 42.

Relevant part is quoted below for reference:

“........ The words “resignation” and “retirement” carry different meanings in common parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attainting the age of superannuation or in the case of voluntary retirement on completion of qualifying service. The effect of resignation and retirement to the extent that there is severance of employment but in service jurisprudence both the expressions are understood differently......... Moreover, resignation brings about complete cessation of master-and-servant relationship whereas voluntary retirement maintains the relationship for the purposes

of grant of retiral benefits, in view of the past service. Similarly, acceptance of resignation is dependent upon discretion  of  the  employer  whereas  retirement  is completion  of  service  in  terms  of  regulations/rules framed  by  the  Bank.  Resignation  can  be  tendered irrespective of the length of service whereas in the case of voluntary retirement, the employee has to complete qualifying service for retiral benefits.”

Thus, “resignation” entails a unilateral act on the part of a public servant/employee desirous of not continuing with his/her service with the employer and then, acceptance of the same by  the employer, with or without a notice period, as the case  may be. In other words, on the relevant date he took a conscious decision to disengage himself from the service of the employer, on the terms and conditions, as were prevalent on that date.

Evidently, Section 9 of the Act of 1974 has not in express term incorporated  “resignation  from  service”,  which  is  another  mode  of ending service tenure at any point of time of service depending on the will of the person concerned.

The impugned Rule 300(a) of the BSR, Part-1provides that when a public servant resigns, the consequence is forfeiture of service.     

However,  the  expressions  like  “resignation”,  “dismissal”, “removal”, have been used in Rule 300(a) with the context of “reckoning service”, as contained under Chapter XIX, Section 1- Special Additions, where  the  term  „pension‟  has  not  been  used.  As  observed  earlier,  a government  servant  becomes  eligible  to  earn  pension  benefit  on satisfactory completion of qualifying service period. According to Rule 300(a),  the  person  concerned  having  resigned  his  entire  past  service stands forfeited. Consequent thereto there remains no qualifying service period in order to claim pension.

The  crucial  point  being  involved  in  the  instant  case  is  that  the respondent-writ petitioner resigned. Being a government servant he was fully aware of all the terms and conditions and having agreed he duly joined in service. Now, he claims pension benefit on the plea that having resigned from service without any stigma he cannot be put at par with those who were dismissed or removed from service as a mode of punishment, the context which is altogether different from those who resigned.

In service law „punishment‟ has a special meaning. In brief, it is a penal action taken against a public servant (by way of dismissal, removal, reduction in rank, withholding of promotion etc.) for misconduct after holding  an  enquiry.  Punishment  normally  entails  forfeiture  of  some accrued  benefits  and  invariably  casts  a  stigma  on  the  employee concerned.  

Conversely, “resignation” is not a punishment, for the following reasons, namely:

1. Every termination of service is not a punishment except only those which were brought about by “removal” or “dismissal” for misconduct after enquiry;
2. There is no element of charge or imputation in the case of resignation;

3. Resignation  has  no  stigma  or  implication  of  insolvency  or inefficiency. It is the unilateral or privilege of every employee to resign his office. 

In other words, Rule 300(a) so far as it relates to “forfeiture of past service on account of resignation” cannot be held to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service. 

In this regard, the High Court Division has misdirected itself in terming “forfeiture of past service for resignation” as “punishment” and accordingly, found the same as being discriminatory for having not been allowed to be treated in accordance with law, guaranteed under Article 31 of the Constitution and also, for having vitiated equality clause, ensured under Article 27 of the Constitution.

The question of discrimination arises when by law or executive action a classification is made within such a class and the two or more classes born out of such classification are treated unequally without any justifiable reason.

It is the rule of interpretation that when different expressions are used in the same Rule, in different context, then all of them cannot be given the same meaning:  Member, Board of Revenue Vs. Arthur Paul Benltall (1955) 2 SCR 842.

Rule 300(a) categorises two classes of persons whose past services having been forfeited are consequently barred from claiming pension. As has been observed earlier, use of expression “resignation” or “dismissal” or “removal” in Rule 300 (a) has to be weighed considering its respective contexts. Merely because those terms have been used in the impugned Rule do not go to make them stand at par for having separate and distinct features altogether. As such, question of discrimination, as alleged by the respondent-writ petitioner does not arise at all. Resultantly, allegations of violation of equality clause, guaranteed under Article 27 as well as not being treated in accordance with law in view of Article 31, fall through.

The respondent-writ petitioner, however, took shelter of Section 53 of  the  Act,  2018  in  order  to  claim  pension  on  the  pretext  that  said provision recognises entitlement of pension benefit even after resignation. Said proposition is misconceived, for, Act, 2018 came into operation on 14.11.2018  and  the  cause  of  action  of  the  respondent-writ  petitioner cropped up on 25.03.2015 with the issuance of impugned memo. Hence, Act, 2018 is not applicable for him. More so, it has no retrospective effect. In addition, said Act does not in express term guarantees right to claim pension on resignation.

Further reliance the respondent-writ petitioner has made is Section 10 of the Act, 1974. In this regard, the contention of the respondent no.1 is  that  since  the  expression  “resignation”  has  not  been incorporated/included  therein  hence,  a  benefit  not  withdrawn  by  the Act,1974 cannot be curtailed vide Rule 300(a), a subordinate legislation. Said proposition of the respondent-writ petitioner is also fallacious, for, the legislature while incorporating Section 10 of the Act, 1974 in clear terms expressed its intention as to disentitlement of a public servant to any  pension  or  other  retiral  benefits  pending  judicial  proceedings instituted against, till the determination of and subject to the findings in such proceedings.

In order to understand the true purport of Section 10, it has to be read along with Sections 4 and 9 of the Act, 1974, not in isolation. 

As has been observed earlier, nowhere within the four corners of the Act of 1974 the legislature introduced the concept of resignation which  gives  entitlement  to  a  public  servant  to  claim  pension  except retirement on attaining the age of 59 years [Section 4] (now, 59 years vide Section  43(1)(ka)  of  the  Act  No.57  of  2018)  or  optional  retirement [Section 9(1)] or compulsory retirement [Section 9(2)] on completion of the qualifying service period i.e. 25 years.

The golden rule of interpretation is that the words must be given their ordinary, plain and clear meaning and the language of the provision being clear, there is no reason for introducing additional words into it: Felix Vs. Thomas, [1967]1AC292.

In  construing  the  provision  of  a  statute,  the  principle  expressio unius est exclusio alterius is applicable. It means that express mention of a thing excludes things which are not mentioned. If a statute enumerates the things upon which it is to operate, everything else must necessarily and by implication be excluded from its operation and effect: Qudrat-E- Elahi Vs. Bangladesh, (1992)44DLR(AD)319,333. 

Further, if the language of the court is not plain, but admits of only one  meaning,  the  language  declares  the  intention:  Anowar  Hossain Chowdhury Vs. Bangladesh, 1989 BLD(Spl)1. In such a case the court is not at liberty to search for a meaning beyond the instrument: Lake City Vs. US,(1888)130 US662.

In view of the clear context, as enumerated in Section 10, there is no scope for this court to extend the context by giving entitlement of pension  to  the  public  servant  who  resigned  from  his  post  before  the qualifying service period.

Another contention of the respondent-writ petitioner for declaring Rule  300(a)  ultra  vires  the  Constitution  is  that  his  service  period,  if forfeited, will have the effect of nullifying all judicial acts done by him throughout his service period. The High Court Division took cognizance of the said proposition while declaring Rule 300(a) as  ultra vires the Constitution.

Fact remains, the respondent-writ petitioner resigned from his post on 31.01.2011, obtained Rule Nisi in Writ Petition No.5323 of 2016. Said Rule has been heard and disposed of by the High Court Division on 18.03.2021. Till the date of delivery of judgment by the High Court Division, or even today when this appeal is being disposed of the said respondent could not place any document whatsoever to show that the respective  judgments  and  orders  he  passed  while  serving  as  judicial officers have been declared null and void for having resigned from his respective  post.  Resultantly,  said  submission  of  the  respondent  no.1 miserably falls through.

In view of the above, this Division categorically finds that Rule 300(a) so far as it relates to  “forfeiture of past service on account of resignation” is not ultra vires the Constitution.

The High Court Division, however, while declaring the impugned memo dated 25.03.2025 to have been passed without lawful authority has taken into consideration of Memo no. Ag  (wewa-1)  Zwc-28/85/106  dated 04.11.1989 along with notification bearing no.07.00.0000.171.13.006.15- 81 dated 14.10.2015 recognising lesser period (in the instant case, 19 years of service period) than that of 25 years as a qualifying service period to claim pension before completing 25 years. Accordingly, said Division gave entitlement to those to claim pension who resigned from service  before  reaching  the  age  of  superannuation  depending  on  the number of years of his/her service.

At this juncture, Mr. Arshadur Rouf, the learned Attorney General (in-charge)  drawing  attention  to  Chapter  XX  of  the  BSR,  Part-I, containing the respective classification of pension, submits that there are 6 (six) different classes of pension attached with conditions to govern their  grant.  However,  none  of  the  conditions  entail  “resignation”. Referring to the respective notification dated 14.10.2015, as relied upon by the High Court Division for giving pension, he goes to argue that, the concerned  authority  of  the  appellant  government  while  amending  the table, as contained in the earlier memo dated 04.11.1989, has included an explanation  “e¨vL¨vÓ which  provides  conditions  for  being  entitled  to pension after rendering the qualifying service period. Those conditions do not enumerate the context of resignation. In such circumstances, he argues that  said  “e¨vL¨vÓ being  an  integral  and  operative  component  of  the notification hence, disregarding the same grant of entitlement of pension benefit by the High Court Division to a person who has resigned from service basing solely upon the table of the pensionable period, is ex facie misconceived and unsustainable in the eye of law. More so, the claim of the respondent-writ petitioner for pension in respect of the service rendered prior to his resignation cannot be sustained, for, the right to pension on resignation is not recognised under the law applicable to him.

Chapter  XX,  Section-1  of  the  BSR,  Part-I  deals  with  different classes of pension with conditions which govern the entitlement/right to claim pension; namely, compensation pension (Section II) (granted on being discharged owing to the abolition of a permanent post), invalid pension (Section III) (granted to one who retires on account of bodily or mental infirmity), superannuation pension (Section IV) (granted to an officer  having  attained  the  age  of  superannuation  or  compulsory retirement); retiring pension (Section V) (granted to an officer, on his resignation being accepted, after completing qualifying service of not less than 25 years); wound and other extraordinary person (Chapter XXIV. Section -1) (granted to those who are employed in civil capacity under the Army department) and family pension.

However, Chapter XXI, Section-1 of the BSR, Part-I contains the general rules, which prescribe the amount of pension that may be granted and is determined by the length of service, as set forth in Rules 351 to 361. The table, as prescribed therein, has undergone several amendments vide the respective memos and notifications. The table incorporated in Memo no.  Ag(wewa-1)  Zwc-28/85/106  dated  04.11.1989  contains  the  respective percentage of pension which is granted basing on the length of service. Said table has been refixed by the authority concerned vide notification bearing  no.07.00.0000.171.13.006.15-81  dated  14.10.2015  in  particular clause  (K).  The  High  Court  Division  while  granting  pension  to  the respondent-writ petitioner relied upon the said table with the following findings:

“............ a sliding scale in provided for the person who retires before completing 25 years of service. By the same  corrollary,  a  person  who  resigns  from  service before reaching the age of superannuation should also be entitled to receive pension depending on the number of years of service rendered by person.........”

It is, however, pertinent to note that the table, as contained in clause “Ka”  of  the  said  notification  dated  14.10.2015  includes “explanation” Òe¨vL¨vÓ prescribing the conditions/contexts which govern the grant of pension for rendering the respective qualifying service period.

The  notification  dated  14.10.2015  is  quoted  below  for  ready

reference:

ÔÔMYcÖRvZš¿x evsjv‡`k mi  Kvi

A_© gš¿Yvjq, A_© wefv  M

cÖwewa AbywefvM

cÖwewa-1 kvLv

cÖÁvcb

ZvwiL: 14 A‡±vei 2015 wLª÷vã/29 Avwk^b 1422 e½vã
bs-07.00.0000.171.13.006.15-81-miKvwi Kg©PvixM‡Yi AemiKvjxb mywea  vwc `Öv /c¨Zv wb¤œiƒcfv‡e cybtwba©viY Kiv n‡q‡Q  :

11.            †cbkb‡hvM¨ PvKwiKvj Ges †cbk‡bicwigvY:

†cbkb‡hvM¨ PvKwiKvj eZ©gv‡b cÖPwjZ 1- 025 eQi Gi ¯’‡j 5-25 eQi Ges †cbk‡bi nvi me©‡kl AvnwiZ †eZ‡bi 80%-Gi ¯’‡j 90%-G DbœxZ Kiv n‡q‡Q| †m cwi‡cÖwÿ‡Z A_© wefv‡Mi- 1 01 4-1989 wLªt Zvwi‡Li Ag(wewa-1) Zwc-28/85/106 msL¨K ¯§viK c‡Îi µgavivq †cbk‡bi nvi wb¤œiƒcfv‡e cybtwba©viY Kiv n‡  jv:

‡cbkb †Uwej

e¨vL¨vt 5-24 eQ‡ii †cbkb‡hvM¨ PvKwiKv‡ji †cbkb †Kej wb‡¤œv³ ‡ÿ‡Î cÖvc¨ n‡eb:

1.             GKRb miKvwi Kg©Pvix g„Zz¨eiY Ki‡j wKsev miKvi KZ…©K MwVZ †gwW‡Kj †evW© Øviv (kvwiixK I gvbwmK ‰eK‡j¨i Kvi‡Y) ¯’vqxfv‡e Aÿg (Invalid) †NvwlZ n‡j; Ges
2.             ¯’vqx c` wejywßi Kvi‡Y PvKwi †_‡K QvUvB‡qi †ÿ‡Î|

12.             ..................................

13.          ..................................

14.            ..................................

ivóªcwZi Av‡`kµ‡g

W. †gvnv¤§` Avjx Lvb. GbwWwm

AwZwi³ mwPeÓ

From the above, it is apparent that said “explanation” or Òe¨vL¨vÓ is an integral part of the notification dated 14.10.2015 and governs the right to pension for the respective pensionable service period ÔÔ5-24 eQ‡ii †cbkb‡hvM¨ PvKwiKv‡ji †cbkb †Kej wb‡¤œv³ ‡ÿ‡Î cÖvc¨ n‡ebÕÕ. Most importantly, these prescribed conditions do not recognise “resignation” to

claim pension.

The  High  Court  Division  without  considering  the  context  as

provided in the Òe¨vL¨vÓ of the said notification gave entitlement of pension to the respondent-writ petitioner basing upon the table only, which in the given  facts  and  circumstances,  observations  and  findings  is  not sustainable in the eye of law.

Last  but  not  the  least,  the  High  Court  Division  declared  the impugned order dated 25.03.2015 passed by the writ respondent no.5 to have been passed without lawful authority on the findings that vide order dated  02.03.2015  the  appellant  i.e.  the  Ministry  of  Law,  Justice  and Parliamentary  Affairs  approved  the  prayer  of  the  respondent-writ petitioner seeking pension following his resignation from service with copy to the said respondent. As such, without further intimation to the respondent-writ  petitioner  returning  his  pension  case  is  not  only  a violation of the principles of natural justice, but also, has the effect of taking away a benefit/privilege that had already been granted to him by the  government;  hence,  curtailed  his  fundamental  right  as  guaranteed under Article 31 of the Constitution.

It is the universally accepted principle that even when a statute is silent notice has to be given if any person is sought to be affected in his right,  interest,  property  or  character:  Abul  A‟la  Moudoodi  VS.  West Pakistan, (1965)17DLR(SC)209.

In  the  instant  case,  the  respondent-writ  petitioner  is  claiming pension for the respective service period following his resignation. As has been  observed  earlier,  the  right  to  pension  on  resignation  is  not recognised under the law applicable to him. As such, giving approval by the Ministry of Law, Justice and Parliamentary Affairs to have pension vide order dated 02.03.2015 without having the mandate of law does not go  to  create  any  right  or  privilege  in  favour  of  the  respondent-writ petitioner.  Consequent  thereto,  returning  the  pension  case  of  the respondent-writ  petitioner  by  the  appellant  vide  the  impugned  memo dated 25.03.2015 does not go to offend Article 31 of the Constitution.

In  view  of  the  above,  the  direction  given  by  the  High  Court Division  upon  the  appellants  to  grant  pension  to  the  respondent-writ petitioner on the basis of his length of service also falls through for the simple reason i.e., it is not an executable order, for, the law does not permit the same.

In addition to the above, it is also pertinent to observe  from a common-sense perspective that if pension and retirement benefits were freely available even before completion of the prescribed 25 years of qualifying service, it could weaken the discipline, stability, and long-term commitment expected in public service. Public employment is designed not  merely  as  short-term  work,  but  as  a  structured  career  requiring continuity, accountability, and sustained institutional loyalty.

If  officers  could  resign  early  yet  still  enjoy  full  pensionary protection, some might treat government service as a temporary platform to gain experience, training, prestige, or financial security before leaving for personal advantage. That could encourage premature exits, disrupt workforce planning, reduce retention of experienced officers, and dilute the seriousness and discipline traditionally associated with career public service.  Therefore,  the  qualifying-service  threshold  reflects  a  rational policy choice to preserve commitment, order, and institutional discipline within the public service.

The legislature, in its wisdom and based on logical considerations, left no benefit to accrue in favour of a public servant who resigns before completing 25 years of service, which is the prescribed cut-off period.

The respondent-writ petitioner, however, by filing application under Article 104 of the Constitution sought for complete justice by directing the appellants to restore his service in Bangladesh Judicial Service with due seniority, promotion, back wages and service benefits; alternatively, to pay the pension benefit with compensation of Tk.2,00,00,000/- (Taka two crore) within a prescribed period.

Article 104 of the Constitution vests power upon the Appellate Division to issue such orders or directions as may be necessary for doing complete  justice  in  any  cause  or  matter  pending  before  it.  This extraordinary power of the Appellate Division is exercised when this Division finds that no remedy is available to the person concerned though gross injustice has been done to him for no fault or laches of his own: Raziul Hasan Vs. Badiuzzaman, 1996 BLD (AD)253.

The  respondent-writ  petitioner  being  a  government  servant  was conversant with the terms and conditions of service in particular that resignation  from  service  does  not  confer  right  to  pension  for  the respective service period. He was also aware that memo dated 04.11.1989 and  notification  dated  14.10.2015  containing  the  table  of  pensionable period is subject to conditions which do not entail “resignation”. Taking into consideration of the above, and also, in view of the observations and findings of this Division we find no substance to entertain the application filed under Article 104 of the Constitution; hence, it is rejected.

In the result, the appeal is allowed. The impugned judgment and order  dated  18.03.2021  passed  by  the  High  Court  Division  in  Writ Petition No.5323 of 2016 is hereby set aside.

There will be order as to costs.

Communicate the judgment at once.

J.

J.

J.

11.03.2026.

Jamal/B.R./Words-*6355*