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Maintaining quota reserved for freedom fighters and their children

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High Court Division :
(Special Original Jurisdiction)
Gobinda Chandra Tagore    J

AKM Shahidul Huq    J
Ekram Hossain (Md)     
................... Petitioner
             VS
Government of Bangladesh, represented by the Secretary, Ministry of Health and Family Affairs, Bangladesh Dhaka and others ………............... Respondents

Judgment
January 8th, 2018

Constitution of Bangladesh, 1972
Article 102(2)

If any, candidates under the quota of freedom fighters has the basic qualification, he would be entitled to be appointed under the quota reserved for them, even if he does not qualify on merit.
The petitioner has passed SSC Examination while, the required educational qualification was only Class-VIII. Therefore, the petitioner has more than the basic qualification. It is the specific case of the petitioner that the petitioner was the sole candidate under the freedom fighters quota while, the recruitment notice was published for appointment to 5 (five) posts. Therefore, under the 30% quota of the freedom fighters, 1.66 posts were secured i.e. 2 (two) posts. Accordingly, the petitioner was entitled to get appointment in 1 (one) post. But the concern respondents did not maintain the quota.  Therefore, the concern respondents are liable to be proceeded against under the departmental proceeding as per the Government   circular.      ………………………… (8 & 9)
Md Solaiman Hossain, Advocate-For the Petitioner.
Judgment
Gobinda Chandra Tagore J: On an application under Article 102 of the Constitution of the People's Republic of Bangladesh, the Rule Nisi was issued calling upon respondents to show cause as to why the impugned letter in the post of 'Helper' vide Memo No  নিমিউ/প্রশা-নিয়োগ/(Ask)/4/2013/4192/(11) dated-19-11-2013 issued under the signature of respondent No.2, Md Abdul Qayum (Joint Secretary-7476) Chief Technical Manager, National Electro-medical Equipment Maintenance Workshop and Training Centre (NEMEW & TC) Mohakhali, Dhaka violating 30% quota seats of Government service reserved for the sons and daughters of Freedom Fighters should not be declared to have been made without lawful authority and is of no legal effect and/or why such other or further order or orders as to this Court may seem fit and proper, should not be passed.
2. Shortly stated the relevant facts necessary for disposal of the Rule Nisi are as follows:  
The petitioner is a son of freedom fighter namely, Md  Nazrul Islam, whose name was published in the Gazette Notification No. 48.00.0000.004.39.001.12-17-7(Ja) 08 National Freedom Fighter Council Act, 2002 contending list of the real freedom fighters. The Government has committed to give all facilities as reserved for the freedom fighters or their heirs. The father of the petitioner is a freedom fighter and also obtained a certificate in this regard from Bangladesh Muktijudda Sangsad under the signature of the Hon'ble Prime Minister of the People's Republic of Bangladesh. The Government has also given a certificate to the petitioner as a son of freedom fighter issued by the Ministry of War of Liberation Affairs. On 23-5-2013 an appointment letter was published in the "Daily Star" vide Memo No. নিমিউ/প্রশা-/নিয়োগ/(অংশ)/4/2011/2081  dated 16-5-2011 inviting application for several posts for appointment on for temporary basis. The petitioner submitted an application for the post of 'Helper' which was included at serial No. 10 of the advertisement. The petitioner complied with all the necessary conditions including the condition Nos. 4 and 5 of the notice advertisement, Annexure-C and interview card was issued in favour of the petitioner and he duly appeared 'before the Interview Board on 25-10-2013 at 10-00 AM vide Memo No.  নিমিউ/প্রশা-/4/2013/8083 Annexure-D. The then Ministry of Establishment directed all concern to follow the 30% quota reserved for the children of the freedom fighters. After interview the respondent No. 2   issued the impugned appointment letter in favour of respondent Nos. 3 to 7 without appointing the petitioner to the post of the 'Helper'. The respondents did not maintain the 30% quota reserved for the freedom fighters or their children. In the facts and circumstances, the petitioner having no equally efficacious remedy, filed the instant Writ Petition and obtained the Rule.
3. Having placed the Writ Petition. Mr Md  Solaiman Hossain, learned Advocate for the petitioner submits that the petitioner being the son of freedom fighter, he was entitled to be appointed to the 30% seats reserved for the freedom fighters or their children and the petitioner having more than the basic qualification, he was entitled to be appointed to the post and as such, the impugned appointment letter is liable to be declared to have been issued without lawful authority and is of no legal effect.
4. The learned Advocate for the petitioner then submits that it is the policy of the Government that for no excuse any authority is appointed by law to refuse to maintain the quota reserved for the freedom fighters and the petitioner having more than the basic qualification, he was entitled to be appointed, which the respondents were required by law to do.

5. We have perused the Writ Petition and heard the learned Advocate for the petitioner.
6.   It appears from the Supplementary Affidavit filed by the petitioner that the petitioner Secondary School Certificate Examination -1993 in Second Division while only the requisite educational qualification for the post of was of Class- Eight. There is no dispute that petitioner's father Md Nazrul Islam was a freedom fighter and his name as a freedom fighter was published in the Gazette Notification dated 2012 and Bangladesh Muktijoddha Sangsad also issued a certificate in this regard under the join signature the then Hon'ble Prime Minister of the People's Republic of Bangladesh and the Chairman of Bangladesh Muktijoddha Sangsad, Central Command Council. 30% quota for any public appointment is reserved for the freedom fighters or their children. The then Ministry of Establishment vide Memo dated 6-12-1999 directed all concern to maintain the quota reserved for the freedom fighters or their children with warning to the concern officers that if any officers does not maintain such quota, a Departmental action would be taken against him which runs as follows:
“২ । সম্প্রতি সরকার সিদ্ধান্ত গ্রহণ করেছেন যে, মুক্তিযোদ্ধাদের সন্তানদের ৩০% কোটায় চাকুরীতে নিয়োগ সংক্রান্ত সরকারী নির্দেশ প্রতিপালিত না হলে সংশ্লিষ্ট নিয়োগকারী কর্মকর্তার বিরুদ্ধে ব্যব¯'া গ্রহণ করা হবে ”।
7.  The   same Ministry Vide Memo No. ইডি/রেড/এ, ৩৬/৭৮, নোট সিট নং-৩৮ পেইজ নং-৯ dated 28-8-1978 informed the concern authority that for no excuse  there should be any violation in maintaining  the quota reserved for the freedom fighters. The relevant portion of the said Memo reads as follows:
“মুক্তিযোদ্ধাদের সংরক্ষিত কোটা কোন অজুহাতেই বিঘিœত করা চলিবে না। অতএব, বেশিকেলী (সিক, বেসিক) কোয়ালিফিকেশন থাকিলে মেরিটের অজুহাতে মুক্তিযোদ্ধাদের বাদ দিয়া তাহাদের কোটার জন্য অন্য কোন প্রার্থী নিয়োগ করা সরকারী নিয়োগ নীতির পরিপš'ী”।
8. Therefore, if any candidates under the quota of freedom fighters has the basic qualification, he would be entitled to be appointed under the quota reserved for them, even if he does not qualify on merit.
9. In the present case, the petitioner has passed SSC Examination while, the required educational qualification was only Class-Eight. Therefore, the petitioner has more than the basic qualification. It is the specific case of the petitioner that the petitioner was the sole candidate under the freedom fighters quota while, the recruitment notice was published for appointment to 5 (five) posts. Therefore, under the 30% quota of the freedom fighters, 1.66 posts were secured i.e. 2 (two) posts. Accordingly the petitioner was entitled to get appointment in I (one) post. But the concern respondents did not maintain the quota. Therefore, the concern respondents are liable to be proceeded against under the departmental proceeding as per the government circular dated 6-12-1999 as contain in Annexure-E.
10. In such facts and circumstances, it appears that the respondents refused to appoint the petitioner by flagrant violation of the Government policy and direction made from time to time while, they were required by law to maintain the quota strictly reserved for the freedom fighters or their children.
11. In such view of the matter, we find merit in the Rule.
12. Accordingly, the Rule is made absolute.
13. However, the petitioner being the sole candidate reserved for the freedom fighters or their children, he may be appointed to the fit post by cancelling the appointment made to the  vit post by the impugned order.
14. Accordingly, the respondents are directed to appoint the petitioner to the post of 'Helper' hithin 30 (thirty) days from the date of receipt of a copy of this judgment with effect from the date of impugned appointment.
However, there would be no order as to costs.

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