High Court Division :
(Special Original Jurisdiction)
Quamrul Islam
Siddique J
Md Khurshid Alam
Sarkar J
Judgment
August l1th, 2014.
SM Shah Jama1………..
…………………Petitioner
vs
Government of Bangladesh and others ….
………..Respondents”.
Constitution of Bangladesh, 1972
Article 102(2)
Entitlement to an accommodation is an integral part of the service condition of a Government servant inasmuch as his engagement in the service of the Republic endows him with the said entitlement of enjoying an accommodation facility at a nominal cost and, therefore, it is an irresistible conclusion of this Court that accommodation of a Government servant does clearly come within the purview of the “terms and conditions” of service of in person in the service of the Republic or a Statutory Public Authority …. (5)
Administrative Tribunal Act, 1980 (VII of 1981)
Section 4
Entitlement to an accommodation of a Government servant is a legal right, not a fundamental right in the light of the fact that a Government servant’s right to enjoyment of a Government accommodation is embodied in the Rules, not even in any statute and, thus, it is not a statutory right, not to speak of fundamental right. (13)
Constitution of Bangladesh, 1972 Article 117
When the Constitution confers jurisdiction upon the Administrative Tribunals by engraving the following words in Artic1e 117″ …. tribunals to exercise jurisdiction in respect of matters relating to or arising out of …. ” it equips and capacitates the Tribunal with octopusian grip to bring all the service related matters of the Government servants within its jurisdiction. …………..(14)
Constitution of Bangladesh, 1972
Articles 102(5) and 117
Exclusion of any service related grievance from the jurisdiction of the Tribunal was not within the contemplation of the framers of the Constitution as they intended to confer a catch-all jurisdiction upon the Administrative Tribunal by inserting Article 117 against the backdrop of Article l02(5) to enable it to deal I with all types of grievances which emanate from or are linked to and connected with the service of a Government servant.(18)
Constitution of Bangladesh, 1972
Article 102(5)
While this Court has persistently been showing its disinclination to issue any Rule in the service matters of the members of defence service because of the provision of the exception stipulated in the latter part of Article 102(5), there is no rationale for the same Court to be inclined to entertain the judicial review applications filed by the Government servants given that they have been excluded from the jurisdiction of the judicial review by the very same provisions of the exception laid down in the same part of Article 102(5) of the Constitution. … (9)
Emrul Kayes vs Bangladesh 19 BLC 76; Mujibur Rahman vs Bangladesh 44 DLR (AD) 111 and AKM Enayet Ullah vs Bangladesh, 18 BLC 679 ref.
No one appears-For the Petitioner.
Farhad Ahmed, DAG with Md Shafquat Hussain, AAG-For the Respondents.
Judgment
Md Khurshid Alam Sarkar J : This Rule was issued calling upon the respondents to show cause as to why the Memo No. 161/DA/Baradda/ABC/2005/300/5 dated 22-12-2005 signed by respondent No.5 (annexure-E) shall not be declared to have been issued illegally and without lawful authority and, as such, is of no legal effect and, further, to show cause as to why section 4 of the Administrative Tribunals Act, 1980 should not be declared ultra vires the Constitution and/or pass such other or further order or orders passed as to this Court may seem fit and proper.
2. No one appears to press this Rule on behalf of the writ petitioner when the item is called and taken up for hearing. As it transpires from the record that the instant Rule was issued on 5-1-2006 and, thereafter, the same was made ready for hearing on 31-1-2006 but till date the petitioner did not take any step for hearing of the Rule, so under the circumstances, this Court opted to dispose of the case on the basis of the statements made and grounds settled in the writ petition and the annexues appended thereto.
3. Mr Farhad Ahmed, the learned Deputy Attorney-General appearing for the respondents, submits that the instant Rule is liable to be discharged on the ground of maintainability of the writ petition as, according to him, the petitioner being a Government servant is debarred under Article 117 of the Constitution to invoke writ jurisdiction.
4. Succinctly, the facts of the case, as stated in the writ petition, are that the petitioner, as a Government servant, under the office of the Auditor and Comptroller General, was allotted the House No. B-55/F-18/(C-2) of Motijheel Colony on 4-6-1985 as per the entitlement provided in the Bangladesh Allocation Rules, 1982. Thereafter, by the impugned notice the allotment of the said house has been cancelled allotting the same to respondent No.7. Hence, the Rule.
5. We have perused the writ petition, together with its Annexures. It is an admitted position that the petitioner is a Government servant and he is entitled to a Government quarter for his accommodation as per the provisions of the Bangladesh Allocation Rules, 1980. In other words, when a person is employed in a post in the service of the Republic, he becomes entitled to an accommodation under the provisions of the Bangladesh Allocations Rules, 1982 and until such accommodation is provided he is paid house allowance in lieu of accommodation. It follows that the petitioner’s entitlement to an accommodation is an integral part of his service condition inasmuch as his engagement in the service of the Republic endows him with the said entitlement of enjoying an accommodation facility at a nominal cost and, therefore, it is an irresistible conclusion of this Court that accommodation of a Government servant does clearly come within the purview of the “terms and conditions” of service of a person in the service of the Republic or a Statutory Public Authority and, accordingly, we hold that the issue for adjudication in the case at hand is a matter relating to and arising out of the terms and conditions of service of the petitioner.
6. Now, the pertinent question that comes up for consideration by this Court is whether this Court is competent to entertain an application under Article 102 in view of the clear bar imposed by Article 117 of our Constitution which runs as follows:-
117. (1) Notwithstanding anything hereinbefore contained, Parliament may by law establish one or more administrative tribunals to exercise jurisdiction in respect of matters relating to or arising out of-
(a) the terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishments;
(b) ………..
(2) Where any administrative tribunal is established under this Article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal;
(underlined by us).
7. From a plain reading of the above Article, it is our clear understanding that the jurisdiction of this Court to entertain a writ petition of any Government servant about the matters “relating to or arising out of the terms and conditions of the service” has totally been ousted.
8. Our above understanding is buttressed up by the provisions of Article 102(5) of our Constitution which is reproduced below:
Article 102(5). In this Article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
9. While this Court has persistently been showing its disinclination to issue any Rule in the service matters of the members of defence service because of the provision of the above exception stipulated in the latter part of Article 102(5), there is no rationale for the same Court to be inclined to entertain the judicial review applications filed by the Government servants given that they have been excluded from the jurisdiction of the judicial review by the very same provisions of the exception laid down in the same part of Article 102(5) of the Constitution. Whenever any member of the defence services approaches this Court under Article 102(2) of the Constitution, we normally decline to entertain the writ petition and ask them to go to the special forum as prescribed in the relevant statutes, namely, Army Act, 1952, Navy Ordinance, 1961 and Air Force Act, 1953, which govern the services of the defence forces, for redressing their grievances and if any member of the defence services invokes Article 102(1) of the Constitution in approaching this Court seeking enforcement of his fundamental rights triggered by disciplinary action taken against him, we outright reject such sort of petition as the same attracts the provisions of Article 45 of the Constitution. However, after exhausting the said special forum, this Court may admit a judicial review application in a rare of the rarest cases if the case is made out on the ground of coram-non-judice or malice-in law since no law of the land, including the aforesaid statutes, provides for any forum of appeal.
Therefore, whenever Government servants seek to redress their service-related grievance before this Court without challenging the vires of any law, this Court must remind them of the operation of Article 102(5) and the ouster clause engraved in Article 117 of the Constitution conveying to the petitioners the enormity of emphasis the Constitution framers attached thereto and, accordingly, we should not only be reluctant to issue any Rule but outright reject the same in view of the incorporation of Article 117 in the Constitution in addition to Article 102(5). Furthermore, as the Administrative Tribunal has been created under the direct mandate of the Constitution to adjudicate upon the service-related matters of the Government servants and, more importantly, since the verdict of the Administrative Tribunal is not final, unlike the Tribunal set up for the members of the defence service, an aggrieved Government servant enjoys the opportunity of preferring an appeal before the Administrative Appellate Tribunal, it should be considered to be a better forum than the civil courts and the other Tribunals created merely under the mandate of a statue.
(To be continued)
(Special Original Jurisdiction)
Quamrul Islam
Siddique J
Md Khurshid Alam
Sarkar J
Judgment
August l1th, 2014.
SM Shah Jama1………..
…………………Petitioner
vs
Government of Bangladesh and others ….
………..Respondents”.
Constitution of Bangladesh, 1972
Article 102(2)
Entitlement to an accommodation is an integral part of the service condition of a Government servant inasmuch as his engagement in the service of the Republic endows him with the said entitlement of enjoying an accommodation facility at a nominal cost and, therefore, it is an irresistible conclusion of this Court that accommodation of a Government servant does clearly come within the purview of the “terms and conditions” of service of in person in the service of the Republic or a Statutory Public Authority …. (5)
Administrative Tribunal Act, 1980 (VII of 1981)
Section 4
Entitlement to an accommodation of a Government servant is a legal right, not a fundamental right in the light of the fact that a Government servant’s right to enjoyment of a Government accommodation is embodied in the Rules, not even in any statute and, thus, it is not a statutory right, not to speak of fundamental right. (13)
Constitution of Bangladesh, 1972 Article 117
When the Constitution confers jurisdiction upon the Administrative Tribunals by engraving the following words in Artic1e 117″ …. tribunals to exercise jurisdiction in respect of matters relating to or arising out of …. ” it equips and capacitates the Tribunal with octopusian grip to bring all the service related matters of the Government servants within its jurisdiction. …………..(14)
Constitution of Bangladesh, 1972
Articles 102(5) and 117
Exclusion of any service related grievance from the jurisdiction of the Tribunal was not within the contemplation of the framers of the Constitution as they intended to confer a catch-all jurisdiction upon the Administrative Tribunal by inserting Article 117 against the backdrop of Article l02(5) to enable it to deal I with all types of grievances which emanate from or are linked to and connected with the service of a Government servant.(18)
Constitution of Bangladesh, 1972
Article 102(5)
While this Court has persistently been showing its disinclination to issue any Rule in the service matters of the members of defence service because of the provision of the exception stipulated in the latter part of Article 102(5), there is no rationale for the same Court to be inclined to entertain the judicial review applications filed by the Government servants given that they have been excluded from the jurisdiction of the judicial review by the very same provisions of the exception laid down in the same part of Article 102(5) of the Constitution. … (9)
Emrul Kayes vs Bangladesh 19 BLC 76; Mujibur Rahman vs Bangladesh 44 DLR (AD) 111 and AKM Enayet Ullah vs Bangladesh, 18 BLC 679 ref.
No one appears-For the Petitioner.
Farhad Ahmed, DAG with Md Shafquat Hussain, AAG-For the Respondents.
Judgment
Md Khurshid Alam Sarkar J : This Rule was issued calling upon the respondents to show cause as to why the Memo No. 161/DA/Baradda/ABC/2005/300/5 dated 22-12-2005 signed by respondent No.5 (annexure-E) shall not be declared to have been issued illegally and without lawful authority and, as such, is of no legal effect and, further, to show cause as to why section 4 of the Administrative Tribunals Act, 1980 should not be declared ultra vires the Constitution and/or pass such other or further order or orders passed as to this Court may seem fit and proper.
2. No one appears to press this Rule on behalf of the writ petitioner when the item is called and taken up for hearing. As it transpires from the record that the instant Rule was issued on 5-1-2006 and, thereafter, the same was made ready for hearing on 31-1-2006 but till date the petitioner did not take any step for hearing of the Rule, so under the circumstances, this Court opted to dispose of the case on the basis of the statements made and grounds settled in the writ petition and the annexues appended thereto.
3. Mr Farhad Ahmed, the learned Deputy Attorney-General appearing for the respondents, submits that the instant Rule is liable to be discharged on the ground of maintainability of the writ petition as, according to him, the petitioner being a Government servant is debarred under Article 117 of the Constitution to invoke writ jurisdiction.
4. Succinctly, the facts of the case, as stated in the writ petition, are that the petitioner, as a Government servant, under the office of the Auditor and Comptroller General, was allotted the House No. B-55/F-18/(C-2) of Motijheel Colony on 4-6-1985 as per the entitlement provided in the Bangladesh Allocation Rules, 1982. Thereafter, by the impugned notice the allotment of the said house has been cancelled allotting the same to respondent No.7. Hence, the Rule.
5. We have perused the writ petition, together with its Annexures. It is an admitted position that the petitioner is a Government servant and he is entitled to a Government quarter for his accommodation as per the provisions of the Bangladesh Allocation Rules, 1980. In other words, when a person is employed in a post in the service of the Republic, he becomes entitled to an accommodation under the provisions of the Bangladesh Allocations Rules, 1982 and until such accommodation is provided he is paid house allowance in lieu of accommodation. It follows that the petitioner’s entitlement to an accommodation is an integral part of his service condition inasmuch as his engagement in the service of the Republic endows him with the said entitlement of enjoying an accommodation facility at a nominal cost and, therefore, it is an irresistible conclusion of this Court that accommodation of a Government servant does clearly come within the purview of the “terms and conditions” of service of a person in the service of the Republic or a Statutory Public Authority and, accordingly, we hold that the issue for adjudication in the case at hand is a matter relating to and arising out of the terms and conditions of service of the petitioner.
6. Now, the pertinent question that comes up for consideration by this Court is whether this Court is competent to entertain an application under Article 102 in view of the clear bar imposed by Article 117 of our Constitution which runs as follows:-
117. (1) Notwithstanding anything hereinbefore contained, Parliament may by law establish one or more administrative tribunals to exercise jurisdiction in respect of matters relating to or arising out of-
(a) the terms and conditions of persons in the service of the Republic, including the matters provided for in Part IX and the award of penalties or punishments;
(b) ………..
(2) Where any administrative tribunal is established under this Article, no court shall entertain any proceedings or make any order in respect of any matter falling within the jurisdiction of such tribunal;
(underlined by us).
7. From a plain reading of the above Article, it is our clear understanding that the jurisdiction of this Court to entertain a writ petition of any Government servant about the matters “relating to or arising out of the terms and conditions of the service” has totally been ousted.
8. Our above understanding is buttressed up by the provisions of Article 102(5) of our Constitution which is reproduced below:
Article 102(5). In this Article, unless the context otherwise requires, “person” includes a statutory public authority and any court or tribunal, other than a court or tribunal established under a law relating to the defence services of Bangladesh or any disciplined force or a tribunal to which article 117 applies.
9. While this Court has persistently been showing its disinclination to issue any Rule in the service matters of the members of defence service because of the provision of the above exception stipulated in the latter part of Article 102(5), there is no rationale for the same Court to be inclined to entertain the judicial review applications filed by the Government servants given that they have been excluded from the jurisdiction of the judicial review by the very same provisions of the exception laid down in the same part of Article 102(5) of the Constitution. Whenever any member of the defence services approaches this Court under Article 102(2) of the Constitution, we normally decline to entertain the writ petition and ask them to go to the special forum as prescribed in the relevant statutes, namely, Army Act, 1952, Navy Ordinance, 1961 and Air Force Act, 1953, which govern the services of the defence forces, for redressing their grievances and if any member of the defence services invokes Article 102(1) of the Constitution in approaching this Court seeking enforcement of his fundamental rights triggered by disciplinary action taken against him, we outright reject such sort of petition as the same attracts the provisions of Article 45 of the Constitution. However, after exhausting the said special forum, this Court may admit a judicial review application in a rare of the rarest cases if the case is made out on the ground of coram-non-judice or malice-in law since no law of the land, including the aforesaid statutes, provides for any forum of appeal.
Therefore, whenever Government servants seek to redress their service-related grievance before this Court without challenging the vires of any law, this Court must remind them of the operation of Article 102(5) and the ouster clause engraved in Article 117 of the Constitution conveying to the petitioners the enormity of emphasis the Constitution framers attached thereto and, accordingly, we should not only be reluctant to issue any Rule but outright reject the same in view of the incorporation of Article 117 in the Constitution in addition to Article 102(5). Furthermore, as the Administrative Tribunal has been created under the direct mandate of the Constitution to adjudicate upon the service-related matters of the Government servants and, more importantly, since the verdict of the Administrative Tribunal is not final, unlike the Tribunal set up for the members of the defence service, an aggrieved Government servant enjoys the opportunity of preferring an appeal before the Administrative Appellate Tribunal, it should be considered to be a better forum than the civil courts and the other Tribunals created merely under the mandate of a statue.
(To be continued)
