Thursday, April 18, 2019 | ePaper

A person who enters in the service first shall rank senior

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Appellate Division :
(Civil)
Mahmud Hossain CJ
Md Imman Ali J
Hasan Foez Siddique J
Mirza Hussain Haider J
Government of Bangladesh and others...................Petitioners
(In CP Nos. 3520-3521- of 2017)
vs
Md Sohel Rana and others.........Respondents
In CP Nos. 3475 & 3520/17
Judgment
April 8th, 2018
Constitution of Bangladesh, 1972
Article 102(2)
Service matter-Seniority amongst officers appointed by the same process at different times, the date of entering service is relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise.
Since the date of appointment of the writ petitioners is earlier in point of time and confirmation of service and date of getting selection grade of the writ petitioners and the added writ respondents are of same date it would be unreasonable and unfair if writ petitioners do not get seniority upon the added respondents simply for the reasons that the writ petitioners were appointed against temporary posts and the added respondents got their appointment against permanent posts. . ..... (8)
Mahbubey Alam, Attorney-General with Ekramul Haque, DAG, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners (In CP 3475 2017).
Mahbubey Alam, Attorney-General instructed by Mahmuda Begum, Advocate-on-Record-For the Petitioners (In CP 3520-3521 2017).
Mahbubey Alam, Senior Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioners (In CP 3476/17).
Abdul Katin Khasru, Senior Advocate with Mahbub  Shafique, Advocate, instructed by Madhumaloti Chowdury Barua, Advocate-on-Record-For the Respondents (In all the cases).
Judgment
Hasan Foez Siddique J : These 4 (four) Civil Petitions for leave to appeal being Civil Petition Nos. 3475-3476 of 2017 and 3520-3521 of 2017 are directed against common judgment and order dated 24-8-2016 passed by the High Court Division in Writ Petition Nos. 3226 of 2013 and 8639 of 2015 making the Rules absolute. Facts of the aforesaid writ petitions are identical. So, they are being disposed of by this common judgment.
2. In those writ petitions, the writ petitioners stated, infer alia, that the writ respondent No.4, published a notification in the daily "Amar Desh" on 15-5-2006, inviting applications for appointment to the posts of Assistant Director (Assistant Geologist) against 28 vacant permanent posts in the department of Geological Survey of Bangladesh (briefly, GSB). Subsequent thereto, by letter No. GSB/Pro-11 (5)/93/3607 dated 21-5-2006, writ respondent No. 5 corrected the earlier notification by splitting those 28 vacant permanent posts into 6 permanent posts and 22 temporary posts. Accordingly, another notification dated 18-5-2006 was published in the daily "Amar Desh" on 27-5-2006. In the said circular, decision of correction of the earlier notification (weÁvc‡bi ms‡kvabx) was narrated in the following terms:

“বিজ্ঞাপনের সংশোধনী
দৈনিক আমার দেশ, দৈনিক ইত্তেফাক, বাংলাদেশ অবজারভার এবং দৈনিক ইনকিলাব পত্রিকায় যথাক্রমে যথাক্রমে ১৫-৫-২০০৬ এবং ১৬-৫-২০০৬ তারিখে প্রকাশিত কমিশন সচিবালয়ের ৩০-৪-২০০৬ তারিখের ৪নং বিজ্ঞাপনে উল্লিখিত বিদ্যুৎ, জ্বালানী ও খনিজ সম্পদ মন্ত্রণালয়ের অধীন ভূতাত্তিক জরিপ অধিদপ্তরের সহকারী পরিচালক (সহকারী ভূ-তাত্ত্বিক) পদে ২৮টি শূন্য স্থায়ী পদের স্থলে ৬ (ছয়)টি শূন্য স্থায়ী পদ পড়তে হবে।”
3. By a Circular dated 17-9-2006, issued by writ respondent No. 4, as evidenced in Annexure-C to the writ petition, the writ petitioners, being 22 in number, were selected by the Bangladesh Public Service Commission for appointment to the Post of Assistant Director (Assistant Geologist). By a letter dated 9-10-2006, writ respondent No.4 recommended for appointment of 22 writ petitioners in the temporary posts of Assistant Director.
By another notification dated 11-2-2007, the 22 writ petitioners were appointed on temporary basis in the posts of Assistant Director under GSB. Following their appointment, the writ petitioners joined their respective posts on 12-2-2007. By notification (dated 20-2-2007, issued on behalf of writ respondent No. 1, added writ respondents Nos. 7, 8, 10. 11 and 12 were appointed on temporary basis as Assistant Director of GSB, who joined their respective posts on 25-2-2007. By office order dated 2-2-2010, issued by the writ respondent No. 1, the service of the 22 writ petitioners as were as those of added writ respondents Nos. 7-12, was made permanent from the date of their joining in their respective posts. By notification dated 25-8-2011, the writ petitioners and the added writ respondents were granted selection grade. On 20-2-2012, writ respondent No. 6 sent a letter to writ respondent No. 1 with regard to determination of seniority amongst 22 writ petitioners and 6 added writ respondents. Writ respondent No. I sent a letter on 10-5-2012 to the respondent No.4 seeking their opinion regarding the inter-se seniority between the 22 writ petitioners and 6 added writ respondents. By Memo No. 80.105.008.27.04. 001/2012/28 dated 10-2-2013, respondent No. 4 sent a letter to writ respondent No. 1 with the following opinion :
“সহকারী পরিচালক (ভূতত্ত্ব) এর ৬(ছয়) টি স্থায়ী পদের নিয়োগ বিজ্ঞপ্তি অস্থায়ী ২২ (বাইশ) টি পদের নিয়োগ বিজ্ঞপ্তির পূর্বে জারী করা হয়েছিল বিধায় নন (ক্যাডার কর্মকর্তা ও কর্মচারী জারী করা হয়েছিল বিধায় নন ক্যাডার কর্মকর্তা ও কর্মচারী (জ্যেষ্ঠতা ও পদোন্নতি) বিধিমালা, ২০১১ এর বিধি ৪(১) (ক) অনুযায়ী সহকারী পরিচালক (ভূতত্ত্ব) এর স্থায়ী পদে নিয়োগপ্রাপ্ত ৬ (ছয়) জন কর্মকর্তা অস্থায়ী পদে নিয়োগপ্রাপ্ত ২২ (বাইশ) জন কর্মকর্তার উপরে জ্যেষ্ঠতা প্রাপ্ত হবেন।”
4. Being aggrieved by the aforesaid decision, the writ petitioners filed aforesaid writ petitions in the High Court Division and obtained the Rules.
5. The High Court Division, by the impugned judgment and order, made all the Rules absolute. Being aggrieved by the impugned judgment and order of the High Court Division, the Government has filed Civil Petition for Leave to Appeal No. 3475 of 2017 against the judgment and order passed in Writ Petition No. 3226 of 2013, Civil Petition for Leave to Appeal No. 3521 of 2017 against the judgment and order passed in Writ Petition No. 8639 of 2015 and Civil Petition for Leave to Appeal  No. 3520 of 2017 against the judgment and order passed in Writ Petition No. 3226 of 2013. On the other hand, the added writ respondents filed Civil Petition for Leave to Appeal No. 3476 of 2017 against the judgment and order passed in Writ Petition No. 8639 of 2015.
6. Mr Mahbubey Alam, learned Attorney-General appearing for the petitioners in all the civil petitions, submits that the High Court Division erred in law in coming to the conclusion that notifications dated 30-4-2006 and 18-5-2006 should be read together without considering that in notification dated 18.5.2006 a new advertisement was published for appointment of 22 temporary posts of Assistant Director (Assistant Geologists) and corrigendum was given in respect of the earlier advertisement dated 30-4-2006 regarding number of posts, that is, permanent posts were reduced to 6 from 28 and other conditions remained same.
 On the other hand, on 18-5-2006, in advertisement for appointment in the temporary posts was given fixing new date of filing application and age limit, the High Court Division erred in law in making the Rules absolute.
7. Mr Abdul Matin Khasru, learned Senior Counsel appearing for the respondents, in his submission supported the judgment and order of the High Court Division.
8. Admittedly, the writ petitioners and added respondents have been serving as Assistant Geologist (Assistant Director) under GSB. The writ petitioners applied for appointment for the posts of Assistant Director (Assistant Geologist). They are recommended by the Public Service Commission and got their appointment on 11-2-2007. They joined in their respective post on 12-2-2007. Added writ respondents were appointed on 20-2-2007. They joined in their respective post on 25-2-2007. Their services were subsequently made permanent. Simple submission of Mr Mahbubey Alam is that the High Court Division committed error of law in drawing conclusion that the notification dated 30-6-2006 and 18-5-2006 should be read together without considering that notification dated 18-5-2006 was, in fact, a new advertisement. We have gone through the notifications. On perusal of the notifications, it appears that the applications were invited by those advertisements against the posts of Assistant Directors (Assistant Geologists) having the same scale.
It is not disputed that the writ petitioners were appointed earlier in point of time. Since the date of appointment, of the writ petitioners is earlier in point of time and confirmation of service and date of getting selection grade of the writ petitioners and the added writ respondents are of same date it would be unreasonable and unfair if writ petitioners do not get seniority upon the added respondents simply for the reasons that the writ petitioners were appointed against temporary posts and the added respondents got their appointment against permanent posts.
Seniority amongst officers appointed by the same  process at different times, the date of entering service is, unless there is some rule relevant. A person who enters in the service first shall rank senior unless there is some rule providing otherwise. Learned Attorney-General failed to show any such law which provides that the persons appointed against permanent posts.
9. Considering the facts and circumstances we do not find any wrong in the judgment and order of the High Court Division.
Accordingly, all the civil petitions are dismissed.

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