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Employees are governed by Service Rules, not Organogram

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High Court Division :
 (Special Original Jurisdiction)
Quamrul Islam
Siddique J
Razik-al-Jalil J
Bellal Hossain Miah and anothers     .........Petitioner
vs
Government of Bangladesh and others .....Respondents
Judgment
May 5th, 2016
Constitution of Bangladesh, 1972
Article 102(2)
Dhaka Municipal Corporation Ordinance (XL of 1983)
Section 157
Organogram and Service Rules are different things. Organogram means an organizational chart, showing graphically the relation of one official to another or others of an establishment. It is also used to show the relation of one department to another or others, or of one function of an organization to another, or others. However, the service rule is a governing law to govern the service of the employees. If any appointment is made without following the service rules, that cannot be sustained on the ground that the provision is permitted by its organogram. Approbation and reprobation, the doctrine applies only to the conduct of parties. . ..... (32 & 33)
Mohammad Hedayet Hossin. Advocate-For the Petitioner.
AM Aminuddin with Sakib Rezwan Kabir, Advocates-For the Respondent No.6.
Judgment.
Razik-al-Jalil J : In this application under Article 102 of the Constitution of the People's Republic of Bangladesh, all the instance of the petitioner a Division Bench of this Court issued a Rule Nisi on 19-4-2012, in the following terms:
"Let a Rule Nisi issued calling upon the respondents to show cause as to why the impugned Memo No.05.132.046.00.00.0 11. 2011-338 dated 29-3-2012 (Annexure E) issued under the signature of respondent No. 3 transferring the respondent No. 6 and 7 in contravention of the item No. 17 of the Schedule of the Dhaka Municipal Corporation Employees Service Rules, 1989 should not be declared to have been issued without lawful authority and is of no legal effect and/or such other or further order or orders as to this Court may seem fit and proper."
2. The facts leading to the issuance of the Rule, in short, are that the petitioner was appointed on 1-6-1988 as Accountant (Bill) in Dhaka City Corporation (now abolished), vide Memo No. 1551/cÖtwet(ms), dated 1-6-1988. The petitioner was promoted to the post of Accounts Officer (Officiating), Miscellaneous Branch, Accounts Division on 17-8-1996, vide Memo No .  286/cÖtwet (m-1) 30, dated 19·8·1996.
3. The Respondent No.1, being empowered pursuant to Section 157 of Dhaka Municipal Corporation Ordinance 1983, enacted Dhaka Municipal Employees Service Rules 1989. Therefore, the said Service Rules of 1989 was/is being applied as governing law with regard to the service of the petitioner. According to Item No. 17 of the Schedule of Dhaka Municipal Employees Service Rules-1989, the post of the Chief Accounts Officer will be filled in either by direct recruitment or by promotion.
4. Thereafter, the petitioner was given additional charge of Deputy Chief Accounts Officer pursuant to the decision dated 4-9-2008 and 8-10-2008. By Office Order dated 25-6-2009 the petitioner was promoted to the post of Deputy Chief Accounts Officer. Accordingly, the petitioner received the charge of Chief Accounts Officer of the said Corporation on 2-8-2009 from the earlier Chief Accounts Officer upon signing Memo. No. 278 wntwet, dated 2-8-2009. Accordingly, the petitioner wrote a letter, dated 2-8-2009 intimating the Chief Executive Officer, Dhaka City Corporation with regard to obtaining his charge and joining in the post of Chief Accounts Officer. Since then the petitioner has been discharging his duty as Chief Accounts Officer (in Charge).
5. On 1-12-2011, the Dhaka City Corporation was bifurcated as 'Dhaka South City Corporation' and 'Dhaka North City Corporation' by Local Government' (City Corporation) (Amendment) Act-2011. After such bifurcation the petitioner is still discharging his duty as Chief Accounts Officer-in-Charge and Additional Charge respectively in Dhaka South City Corporation and Dhaka North City Corporations.
6. Subsequently, the authority concerned decided that the Service Rules 1989 of the abolished Dhaka City Corporation would remain applicable for regulating and controlling the services of the employees of those two City Corporations. Accordingly the copy of the said Minute dated 8-3-2012 was forwarded to the authority concerned vide Memo No. 46.070.007.00.00.199.2011-454, dated 25-3-2012 for taking necessary actions. Thereafter, all on a sudden. Respondents issued Memo No.5. 1 32.046,00. 00.0 11. 20 11-338, dated 29-3-2012, (Annexure-E), transferring Respondent Nos. 6 & 7 to the post of Chief Accounts Officer of Dhaka North City Corporation and Dhaka South City Corporation from the post of Director, Railway Audit Department, Dhaka and Director, High Commission Audit Department, Dhaka, respectively in contravention of the item No. 17 of the schedule of the Dhaka Municipal Corporation Employees Service Rules 1989. Being aggrieved by this order, the writ petitioner filed the instant petition and obtained the instant Rule.
7. The petitioner by filing a supplementary affidavit dated 23-10-2014 stated that after such bifurcation, the petitioner had discharged his duty as Chief Accounts Officer-in-Charge and Additional Charge respectively in Dhaka South City Corporation and Dhaka North City Corporations until joining of Respondent Nos. 6 and 7 in the post of Chief Accounts officer of the Dhaka North/South City Corporations. Thereafter, an office order dated 13-5-2012 was issued releasing the petitioner from the post of Chief Accounts Officer-in-Charge and Additional Charge. As a result, the petitioner was discharging his duty as Deputy Chief Accounts Officer of Dhaka South City Corporation.
 (To be continued)

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