Appellate Division :
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Syed Mahmud Hossain J
Government of Bangladesh and others…………Petitioners
vs
Md Aminul Islam and others
——–Respondents
Judgment
July 29th, 2013
Constitution of Bangladesh, 1972
Articles 102(2) and 111
As the writ-petitioners rendered service to the Board till February, 2003 they are surely entitled to get the salary and fringe benefits upto February, 2003 from January, 1998. The writ-respondents did not deny the facts asserted in the writ petition and thus the claim of the writ-petitioners that the Board received their services upto February, 2003 is an admitted fact, impugned judgment and order was passed on 5-1-2011 and no order was passed by this Division staying operation of the same and we believe that by this time, the writ-respondents have included the writ-petitioners in the revenue set up of the Board as per the direction given by the High Court Division. …(12)
Bangladesh vs Md Jahangir Hossain and 65 others, 51 DLR (AD) 148 ref.
Rajik-al-Jalil, Deputy Attorney-General instructed by B. Hossain, Advocate-on-Record-For the Petitioners.
Abdur Rob Chowdhury, Senior Advocate instructed by Zahirul Islam, Advocate-on-Record-For the Respondents.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by the writ respondents (hereinafter referred to as the respondents) against the judgment and order dated the 5th day of January, 2011 passed by the High Court Division in Writ Petition No.4151 of 2003 making the Rule absolute with the direction upon them to include the writ-petitioners in the revenue set up of Cotton Development Board with continuity of service, salary and fringe benefits within 1 (one) month from the date of receipt of the judgment and order.
2. The respondents, herein, as the petitioners (hereinafter referred to as the writ-petitioners) filed the said writ petition for a direction upon the respondents to absorb them in the Revenue Sector and to make their service permanent under the Ministry of Agriculture.”
3. The case of the writ-petitioners as stated in the writ petition was that the Executive Director of the Cotton Development Board (the Board), Dhaka, an organization under the Ministry of Agriculture, Government of the People’s Republic of Bangladesh, invited application for appointment to different posts for its Integrated Cotton Development Project by an advertisement published in the National Daily Bhorer Kagoj on 19-3-1994, Accordingly the writ-petitioners along with others applied for appointment to some of the said posts and a written test was held on 16-4-1995. The writ-petitioners were qualified in the written test and were asked to appear for viva-voce on 30-5-1995, in which they also came out successful and appointment letters were issued to them for joining their respective post on temporary basis for the tenure of the project. The writ-petitioners joined their services in the project within the specified dates. After joining in their respective post, the writ-petitioners continued their services in the project with all sincerity, honesty and integrity to the best satisfaction of the authority concerned. Although the appointment of the writ-petitioners was for the tenure of the project, which expired on 30-6-1995, they were allowed to continue in their services till February, 2003 and the respondents received their services without any fresh appointment “as of other regular employees” of the Board. The Board made a proposal to the Ministry of Establishment for absorbing 237 posts from amongst 576 temporary posts of the said Integrated Cotton Development Project in the revenue head and on the basis of the said proposal, the Establishment Ministry on different dates absorbed 175 of them in the revenue head. The standing committee of the Ministry of Finance in its meetings held on 1-8-1999 and 8-8-1999 agreed to absorb 117 posts in the revenue head. The said decision was communicated under Memo No Ag/Avwe.Dt2/K…wl-5(1)/91/89 dated 30-8-1999 under the signature of the Senior Assistant Secretary, Ministry of Establishment. In order to absorb the writ-petitioners and others in the revenue head, the Ministry of Establishment directed to abolish 64 posts in the revenue head of the Board. The said letter was duly communicated to the Ministry of Agriculture by its office Memo No. mg/mI ev/wUg-4(2)-Kg-136/95(Ask)-90 dated 18-10-2000.
4. The Ministry of Establishment on 4-11-2000 made another fresh proposal for absorbing in the revenue budget, 28 more posts abolishing 49 posts of the ‘Integrated Cotton Development Project.’ Accordingly, the Board abolished the suggested 49 posts. In a meeting of the standing committee of finance division of the Ministry of Finance held on 12-1-2002, this proposal of the Ministry of Establishment was rejected on the observation that since 117 posts had earlier been absorbed in the revenue budget from the working man power of the ‘Integrated Cotton Project’ there was no ‘scope’ to consider that any other working man power of the project was left out for further absorption, i.e. the newly proposed 28 posts in the revenue head.
The Ministry of Agriculture pursuant to the recommendations from the Board made several requests to the Ministry of Finance to shift the said 28 posts to revenue head and of late, the State Minister for Agriculture issued a letter to the Finance Minister under No. AtmtcÎ bs-K…wl/Zzjv-38/2002/530 dated 29-11-2002 requesting him to take immediate effective step to transfer 28 persons employed in the completed project ‘Integrated Cotton Development Project.’ In the said letter, it was clearly stated that the said 28 posts were indispensable for the Board and the Ministry of Establishment also gave consent to transfer those posts to the revenue budget on the condition of abolishing 49 permanent vacant posts in the revenue budget of the Board. It was further stated that though the tenure of the project ended on 30-6-1995, the salary and other allowances of the persons employed in the said posts were given upto 1997 from the fund of the project allocated by the Ministry of Finance (A_© gš¿Yvjq †_‡K cÖKí †_vK eivÏ n‡Z) and since January, 1998 they were not being given any salary and allowances, i.e. for more than 4 (four) years, they were living an inhuman life (gvb†eZi Rxeb hvcb K‡i‡Qb). The Minister, Ministry of Finance and Planning refused to absorb the writ-petitioners and 12 others in the revenue head, which was communicated to the Ministry of Agriculture. The Executive Director of the Board communicated the said decision of the Minister, Ministry of Finance to the writ-petitioners by his office Memo No. Zzjv/cÖkv-1-GK-6/95-2002/498(42) dated 19-2-2003. On 4-3-2003, the Executive Director of the Board by his letter vie Memo No. Zzjv/cÖkv-1-GK-6/95-2002/612 of the same date requested the Secretary, Ministry of Agriculture to absorb the writ-petitioners and 12 others in the revenue head of the Government considering the humanitarian aspect of those incumbents. In the letter, he explained the entire circumstances in that respect. The Ministry of Agriculture by a letter under Memo No. K…wl-4/Zzjv-38/2002/71 dated 17-3-2003 issued under the signature of a Senior Assistant Secretary informed that the Ministry of Finance had refused to absorb the writ-petitioners in the revenue head of the Government. In the meantime, on 3-3-2003, the Executive Director of the Board by his Office Memo No. Zzjv/wnmve-27/2000-03/592 of the same date requested the Secretary, Ministry of Agriculture for furnishing fund to pay the salaries to the writ-petitioners and with the Memo payment list of the writ petitioners and others incumbents were annexed, wherefrom it appears that although the project ended on 30th June 1995, the Board took service from the writ petitioners and others and paid salaries and after 1998, the respondents did not pay salaries. On 13-4-2003, the Executive Director of the Board again requested the Secretary, Ministry of Agriculture to take steps for absorption of the writ-petitioners in the revenue set up.
5. In the writ petition, it was contended that the respondents took service of the writ-petitioners with the legitimate expectation that they would absorb them in the revenue healy of the Government. The 28 posts and persons working against each of those posts were recommended for absorption in the revenue budget by the Board, the Ministry of Agriculture and the Ministry of Establishment i.e., by the executive authorities under whom they would work and, as such, these posts could not be abolished and the writ-petitioners working there could not be dislodged by a decision of the standing committee of the finance division, which is constituted with the executives of the Finance Ministry, in the face of judgment and order dated 27-5-1999 in Civil Petition for Leave to Appeal No. 62-67 and several other leave petitions of 1998 and 1999 (Secretary, Ministry of Establishment, Government of Bangladesh vs Md Jahangir Hossain and 65 others 51 DLR (AD) 148 wherein it was held:
“…If the executive prepares a list of persons of appointment in the service of the Republic without the backing of any law behind it and actually appoints some persons from the list, the others left out can come to the High Court Division not for enforcement of any legal right but for enforcement of their fundamental right.”
6. And in such view of the matter, the finance division of the Ministry of Finance clearly violated the fundamental right of the writ-petitioners refusing “to shift them to Revenue Budget in discrimination with others in the same posting and so listed by the executives of the concerned authorities.” On expiry of the tenure of the project for which the writ-petitioners were recruited on temporary basis, they were taken in the Board in different offices and they worked for the last 7 (seven) years out of which 4 (four) years without salary (writ-petitioners were paid salaries for three years from the lump grants to the Ministry of Agriculture) and their services have been considered as indispensable, therefore, a very reasonable and legitimate expectation developed in their minds that they would be absorbed ultimately in the same manner as is usually done in such cases.
7. The writ-petitioners issued notice upon the writ-respondents demanding justice, but they did not respond; hence they filed the writ petition.
8. Writ-respondent No.1, i.e. the Government of Bangladesh, represented by the Secretary, Ministry of Finance, contested the Rule by filing an affidavit-in-opposition contending, inter-alia, that after completion of the project the services of the project personnel automatically ended and no termination letter was required in that regard. The writ-petitioners continued with their work on their own with the hope that their posts will be transferred to the revenue budget. No “budget or vested right” was created in favour of their writ-petitioners for being absorbed in the revenue sector by the decision dated 1-8-1999 and 8-8-1999. The meeting of the standing committee of the Ministry of Finance was held on 10-1-2002 which did not recommend transfer of the post of the writ-petitioners in the revenue set up and in that meeting, the Executive Director of the Board was also present. The writ-petitioners were allowed pay and allowances upto December. 1997 with the approval of the Ministry of Finance. The Ministry of Finance did not sanction money to pay the writ-petitioners further salary and allowances on the ground that their posts were not recommended for revenue set up. The Ministry of Finance took the decision according to the existing rules and there is no such mandatory rule to transfer all posts and manpower to the revenue set up after completion of the project. The writ-petitioners had no reason to feel aggrieved by the impugned letter. The writ petition was not maintainable. Therefore, the Rule was liable to be discharged.
9. On hearing the writ petition, the High Court Division by the impugned judgment and order made the Rule absolute with the following directions;
“The respondents are directed to include the petitioners in the Revenue set up of Cotton Development Board with continuity of service, salary and fringe benefits be paid within 1(one) month from the date of receipt of the judgment and order.”
10. Heard Mr Rajik-al-Jalil, learned Deputy Attorney-General, for the writ-respondent-petitioners and Mr. Abdur Rob Chowdhury, learned Counsel, entering caveat on behalf of the writ-petitioner-respondents.
11.From the impugned judgment and order, it appears that the High Court Division Considering annexure-‘J’ to the writ petition observed that the Project Director by Memo dated 4-3-2003 had written a letter to the Secretary, Ministry of Agriculture stating in detail as to the justification of the service of 28 employees and recommended for their absorption in the revenue set up on humanitarian ground and also sought sanction of Taka 64-07 lac for giving salaries from January, 1998 to February, 2003. The High Court Division further considered annexure-‘L’ to the writ petition by which the Ministry of Agriculture by its Memo dated 17-3-2003 had informed the Executive Director of the Board that the Ministry of Finance expressed inability to take step to absorb 28 employees by letter dated 3-3-2003. Thereafter, the said Executive Director wrote another letter on 13-4-2003 giving more details and stating that as per decision of the Ministry of Establishment by letter dated 20-9-2003, the Director abolished 49 posts from revenue set up in order to accommodate 28 posts. The High Court Division also relied upon annexure-‘N’ to the supplementary affidavit, the project pro-forma wherein, it was specifically mentioned that after completion of the project on 30th of June, 1995, it would be transferred to the revenue set up. The High Court Division also considered annexure-‘O’ to the supplementary affidavit which clearly stated that the posts of a completed project started before 1-1-1997 shall be transferred to the revenue set up from next day of the completion of the project, but the posts in the project which was started after 1-7-1997 shall be created from the date of the Government order.
(To be continued)
The High Court Division further observed that from the materials, it was found that 392 employees of the project were absorbed in the revenue set up after its completion; the writ-respondents received that service from the writ-petitions from about 7 (seven) years till 2003 (it would be February, 2003) after the end of the project in 1995, but the writ-petitioners were paid salaries upto 1998 and thereafter, they rendered services “till 2003 with the sky high expectation” that they will be absorbed in the revenue set up. The High Court Division concluded by observing that from annexure – ‘N’ and ‘O, it appeared that a clear understanding was given to the writ-petitioners and others that their services would be transferred to the revenue set up and then came to the finding that “it has clearly been emerged from the materials that there were some sorts of promise given on behalf of the public authority but the Ministry of Finance overlooking all those promises had most unjustly rejected the recommendation of the Ministry of Establishment as well as the Ministry of Agriculture to absorb 28 posts in the revenue set up and such decision of the Ministry of Finance appears to have been made arbitrarily and without any reason or rhyme and such arbitrary decision cannot be sustained in law.” In giving the above finding the High Court Division relied upon the observations made by this Division in the case of Secretary, Ministry of Establishment vs Md Jahangir Hossain and 65 others (supra).
12. Mr Rajik-al-Jalil, learned Deputy Attorney-General, appearing for the writ-respondent-petitioners could not assail the facts as noticed by the High Court Division and the observations made by it with reference to any material on record. Therefore, we find nothing wrong with the view taken by the High Court Division to the effect “we have no hesitation to hold that the petitioners expectation of being absorbed in the service after satisfactory completion by 5 years service cannot but be said to be their legitimate expectation and in all fairness, they should be absorbed in their service” and in giving direction upon the writ-respondents to “include the petitioners in the Revenue set up of Cotton Development Board with continuity of service” within 1 (one) month from the date of receipt of the impugned judgment and order. Therefore, no interference is called for by this Division with that portion of the direction given by the High Court Division in the impugned judgment and order (as quoted hereinbefore). But the direction given by the High Court Division so far as it relates to give “salary and fringe benefits” to the writ-petitioners is concerned that cannot be maintained altogether for the reason that admittedly, the writ-petitioners worked upto February, 2003, whereas the impugned judgment and order was passed on 5-1-2011 and if the direction of the High Court Division is given effect then they shall have to be paid salary and fringe benefits from March, 2003 till the pronouncement of the judgment in spite of their not being in service during that period and thereby they did not render any service to the Board. However, as the writ-petitioners rendered service to the Board till February, 2003 they are surely entitled to get the salary and fringe benefits up to February, 2003 from January, 1998 (admittedly the writ petitions were paid the salaries and fringe benefits upto December, 1997). It may be stated that in paragraph 4 of the writ petition, it was stated to the effect “That although the appointment of the petitioners was for the tenure of the project which expired on 30-6-1995 but they were allowed to continue in their services till February, 2003 and the respondents received their services without any fresh appointment as of other regular employees of the Cotton Development Board.” The writ-respondents did not deny the above quoted facts asserted in the writ petition and thus the claim of the writ-petitioners that the Board received their services upto February, 2003 is an admitted fact. It further appears that the impugned judgment and order was passed on 5-1-2011 and no order was passed by this Division staying operation of the same and we believe that by this time, the writ-respondents have included the writ-petitioners in the revenue set up of the Board as per the direction given by the High Court Division.
This leave petition is disposed of with the above modification of the direction of the High Court Division in respect of the salary and fringe benefits to be paid to the writ-petitioners.
Ed
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Syed Mahmud Hossain J
Government of Bangladesh and others…………Petitioners
vs
Md Aminul Islam and others
——–Respondents
Judgment
July 29th, 2013
Constitution of Bangladesh, 1972
Articles 102(2) and 111
As the writ-petitioners rendered service to the Board till February, 2003 they are surely entitled to get the salary and fringe benefits upto February, 2003 from January, 1998. The writ-respondents did not deny the facts asserted in the writ petition and thus the claim of the writ-petitioners that the Board received their services upto February, 2003 is an admitted fact, impugned judgment and order was passed on 5-1-2011 and no order was passed by this Division staying operation of the same and we believe that by this time, the writ-respondents have included the writ-petitioners in the revenue set up of the Board as per the direction given by the High Court Division. …(12)
Bangladesh vs Md Jahangir Hossain and 65 others, 51 DLR (AD) 148 ref.
Rajik-al-Jalil, Deputy Attorney-General instructed by B. Hossain, Advocate-on-Record-For the Petitioners.
Abdur Rob Chowdhury, Senior Advocate instructed by Zahirul Islam, Advocate-on-Record-For the Respondents.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by the writ respondents (hereinafter referred to as the respondents) against the judgment and order dated the 5th day of January, 2011 passed by the High Court Division in Writ Petition No.4151 of 2003 making the Rule absolute with the direction upon them to include the writ-petitioners in the revenue set up of Cotton Development Board with continuity of service, salary and fringe benefits within 1 (one) month from the date of receipt of the judgment and order.
2. The respondents, herein, as the petitioners (hereinafter referred to as the writ-petitioners) filed the said writ petition for a direction upon the respondents to absorb them in the Revenue Sector and to make their service permanent under the Ministry of Agriculture.”
3. The case of the writ-petitioners as stated in the writ petition was that the Executive Director of the Cotton Development Board (the Board), Dhaka, an organization under the Ministry of Agriculture, Government of the People’s Republic of Bangladesh, invited application for appointment to different posts for its Integrated Cotton Development Project by an advertisement published in the National Daily Bhorer Kagoj on 19-3-1994, Accordingly the writ-petitioners along with others applied for appointment to some of the said posts and a written test was held on 16-4-1995. The writ-petitioners were qualified in the written test and were asked to appear for viva-voce on 30-5-1995, in which they also came out successful and appointment letters were issued to them for joining their respective post on temporary basis for the tenure of the project. The writ-petitioners joined their services in the project within the specified dates. After joining in their respective post, the writ-petitioners continued their services in the project with all sincerity, honesty and integrity to the best satisfaction of the authority concerned. Although the appointment of the writ-petitioners was for the tenure of the project, which expired on 30-6-1995, they were allowed to continue in their services till February, 2003 and the respondents received their services without any fresh appointment “as of other regular employees” of the Board. The Board made a proposal to the Ministry of Establishment for absorbing 237 posts from amongst 576 temporary posts of the said Integrated Cotton Development Project in the revenue head and on the basis of the said proposal, the Establishment Ministry on different dates absorbed 175 of them in the revenue head. The standing committee of the Ministry of Finance in its meetings held on 1-8-1999 and 8-8-1999 agreed to absorb 117 posts in the revenue head. The said decision was communicated under Memo No Ag/Avwe.Dt2/K…wl-5(1)/91/89 dated 30-8-1999 under the signature of the Senior Assistant Secretary, Ministry of Establishment. In order to absorb the writ-petitioners and others in the revenue head, the Ministry of Establishment directed to abolish 64 posts in the revenue head of the Board. The said letter was duly communicated to the Ministry of Agriculture by its office Memo No. mg/mI ev/wUg-4(2)-Kg-136/95(Ask)-90 dated 18-10-2000.
4. The Ministry of Establishment on 4-11-2000 made another fresh proposal for absorbing in the revenue budget, 28 more posts abolishing 49 posts of the ‘Integrated Cotton Development Project.’ Accordingly, the Board abolished the suggested 49 posts. In a meeting of the standing committee of finance division of the Ministry of Finance held on 12-1-2002, this proposal of the Ministry of Establishment was rejected on the observation that since 117 posts had earlier been absorbed in the revenue budget from the working man power of the ‘Integrated Cotton Project’ there was no ‘scope’ to consider that any other working man power of the project was left out for further absorption, i.e. the newly proposed 28 posts in the revenue head.
The Ministry of Agriculture pursuant to the recommendations from the Board made several requests to the Ministry of Finance to shift the said 28 posts to revenue head and of late, the State Minister for Agriculture issued a letter to the Finance Minister under No. AtmtcÎ bs-K…wl/Zzjv-38/2002/530 dated 29-11-2002 requesting him to take immediate effective step to transfer 28 persons employed in the completed project ‘Integrated Cotton Development Project.’ In the said letter, it was clearly stated that the said 28 posts were indispensable for the Board and the Ministry of Establishment also gave consent to transfer those posts to the revenue budget on the condition of abolishing 49 permanent vacant posts in the revenue budget of the Board. It was further stated that though the tenure of the project ended on 30-6-1995, the salary and other allowances of the persons employed in the said posts were given upto 1997 from the fund of the project allocated by the Ministry of Finance (A_© gš¿Yvjq †_‡K cÖKí †_vK eivÏ n‡Z) and since January, 1998 they were not being given any salary and allowances, i.e. for more than 4 (four) years, they were living an inhuman life (gvb†eZi Rxeb hvcb K‡i‡Qb). The Minister, Ministry of Finance and Planning refused to absorb the writ-petitioners and 12 others in the revenue head, which was communicated to the Ministry of Agriculture. The Executive Director of the Board communicated the said decision of the Minister, Ministry of Finance to the writ-petitioners by his office Memo No. Zzjv/cÖkv-1-GK-6/95-2002/498(42) dated 19-2-2003. On 4-3-2003, the Executive Director of the Board by his letter vie Memo No. Zzjv/cÖkv-1-GK-6/95-2002/612 of the same date requested the Secretary, Ministry of Agriculture to absorb the writ-petitioners and 12 others in the revenue head of the Government considering the humanitarian aspect of those incumbents. In the letter, he explained the entire circumstances in that respect. The Ministry of Agriculture by a letter under Memo No. K…wl-4/Zzjv-38/2002/71 dated 17-3-2003 issued under the signature of a Senior Assistant Secretary informed that the Ministry of Finance had refused to absorb the writ-petitioners in the revenue head of the Government. In the meantime, on 3-3-2003, the Executive Director of the Board by his Office Memo No. Zzjv/wnmve-27/2000-03/592 of the same date requested the Secretary, Ministry of Agriculture for furnishing fund to pay the salaries to the writ-petitioners and with the Memo payment list of the writ petitioners and others incumbents were annexed, wherefrom it appears that although the project ended on 30th June 1995, the Board took service from the writ petitioners and others and paid salaries and after 1998, the respondents did not pay salaries. On 13-4-2003, the Executive Director of the Board again requested the Secretary, Ministry of Agriculture to take steps for absorption of the writ-petitioners in the revenue set up.
5. In the writ petition, it was contended that the respondents took service of the writ-petitioners with the legitimate expectation that they would absorb them in the revenue healy of the Government. The 28 posts and persons working against each of those posts were recommended for absorption in the revenue budget by the Board, the Ministry of Agriculture and the Ministry of Establishment i.e., by the executive authorities under whom they would work and, as such, these posts could not be abolished and the writ-petitioners working there could not be dislodged by a decision of the standing committee of the finance division, which is constituted with the executives of the Finance Ministry, in the face of judgment and order dated 27-5-1999 in Civil Petition for Leave to Appeal No. 62-67 and several other leave petitions of 1998 and 1999 (Secretary, Ministry of Establishment, Government of Bangladesh vs Md Jahangir Hossain and 65 others 51 DLR (AD) 148 wherein it was held:
“…If the executive prepares a list of persons of appointment in the service of the Republic without the backing of any law behind it and actually appoints some persons from the list, the others left out can come to the High Court Division not for enforcement of any legal right but for enforcement of their fundamental right.”
6. And in such view of the matter, the finance division of the Ministry of Finance clearly violated the fundamental right of the writ-petitioners refusing “to shift them to Revenue Budget in discrimination with others in the same posting and so listed by the executives of the concerned authorities.” On expiry of the tenure of the project for which the writ-petitioners were recruited on temporary basis, they were taken in the Board in different offices and they worked for the last 7 (seven) years out of which 4 (four) years without salary (writ-petitioners were paid salaries for three years from the lump grants to the Ministry of Agriculture) and their services have been considered as indispensable, therefore, a very reasonable and legitimate expectation developed in their minds that they would be absorbed ultimately in the same manner as is usually done in such cases.
7. The writ-petitioners issued notice upon the writ-respondents demanding justice, but they did not respond; hence they filed the writ petition.
8. Writ-respondent No.1, i.e. the Government of Bangladesh, represented by the Secretary, Ministry of Finance, contested the Rule by filing an affidavit-in-opposition contending, inter-alia, that after completion of the project the services of the project personnel automatically ended and no termination letter was required in that regard. The writ-petitioners continued with their work on their own with the hope that their posts will be transferred to the revenue budget. No “budget or vested right” was created in favour of their writ-petitioners for being absorbed in the revenue sector by the decision dated 1-8-1999 and 8-8-1999. The meeting of the standing committee of the Ministry of Finance was held on 10-1-2002 which did not recommend transfer of the post of the writ-petitioners in the revenue set up and in that meeting, the Executive Director of the Board was also present. The writ-petitioners were allowed pay and allowances upto December. 1997 with the approval of the Ministry of Finance. The Ministry of Finance did not sanction money to pay the writ-petitioners further salary and allowances on the ground that their posts were not recommended for revenue set up. The Ministry of Finance took the decision according to the existing rules and there is no such mandatory rule to transfer all posts and manpower to the revenue set up after completion of the project. The writ-petitioners had no reason to feel aggrieved by the impugned letter. The writ petition was not maintainable. Therefore, the Rule was liable to be discharged.
9. On hearing the writ petition, the High Court Division by the impugned judgment and order made the Rule absolute with the following directions;
“The respondents are directed to include the petitioners in the Revenue set up of Cotton Development Board with continuity of service, salary and fringe benefits be paid within 1(one) month from the date of receipt of the judgment and order.”
10. Heard Mr Rajik-al-Jalil, learned Deputy Attorney-General, for the writ-respondent-petitioners and Mr. Abdur Rob Chowdhury, learned Counsel, entering caveat on behalf of the writ-petitioner-respondents.
11.From the impugned judgment and order, it appears that the High Court Division Considering annexure-‘J’ to the writ petition observed that the Project Director by Memo dated 4-3-2003 had written a letter to the Secretary, Ministry of Agriculture stating in detail as to the justification of the service of 28 employees and recommended for their absorption in the revenue set up on humanitarian ground and also sought sanction of Taka 64-07 lac for giving salaries from January, 1998 to February, 2003. The High Court Division further considered annexure-‘L’ to the writ petition by which the Ministry of Agriculture by its Memo dated 17-3-2003 had informed the Executive Director of the Board that the Ministry of Finance expressed inability to take step to absorb 28 employees by letter dated 3-3-2003. Thereafter, the said Executive Director wrote another letter on 13-4-2003 giving more details and stating that as per decision of the Ministry of Establishment by letter dated 20-9-2003, the Director abolished 49 posts from revenue set up in order to accommodate 28 posts. The High Court Division also relied upon annexure-‘N’ to the supplementary affidavit, the project pro-forma wherein, it was specifically mentioned that after completion of the project on 30th of June, 1995, it would be transferred to the revenue set up. The High Court Division also considered annexure-‘O’ to the supplementary affidavit which clearly stated that the posts of a completed project started before 1-1-1997 shall be transferred to the revenue set up from next day of the completion of the project, but the posts in the project which was started after 1-7-1997 shall be created from the date of the Government order.
(To be continued)
The High Court Division further observed that from the materials, it was found that 392 employees of the project were absorbed in the revenue set up after its completion; the writ-respondents received that service from the writ-petitions from about 7 (seven) years till 2003 (it would be February, 2003) after the end of the project in 1995, but the writ-petitioners were paid salaries upto 1998 and thereafter, they rendered services “till 2003 with the sky high expectation” that they will be absorbed in the revenue set up. The High Court Division concluded by observing that from annexure – ‘N’ and ‘O, it appeared that a clear understanding was given to the writ-petitioners and others that their services would be transferred to the revenue set up and then came to the finding that “it has clearly been emerged from the materials that there were some sorts of promise given on behalf of the public authority but the Ministry of Finance overlooking all those promises had most unjustly rejected the recommendation of the Ministry of Establishment as well as the Ministry of Agriculture to absorb 28 posts in the revenue set up and such decision of the Ministry of Finance appears to have been made arbitrarily and without any reason or rhyme and such arbitrary decision cannot be sustained in law.” In giving the above finding the High Court Division relied upon the observations made by this Division in the case of Secretary, Ministry of Establishment vs Md Jahangir Hossain and 65 others (supra).
12. Mr Rajik-al-Jalil, learned Deputy Attorney-General, appearing for the writ-respondent-petitioners could not assail the facts as noticed by the High Court Division and the observations made by it with reference to any material on record. Therefore, we find nothing wrong with the view taken by the High Court Division to the effect “we have no hesitation to hold that the petitioners expectation of being absorbed in the service after satisfactory completion by 5 years service cannot but be said to be their legitimate expectation and in all fairness, they should be absorbed in their service” and in giving direction upon the writ-respondents to “include the petitioners in the Revenue set up of Cotton Development Board with continuity of service” within 1 (one) month from the date of receipt of the impugned judgment and order. Therefore, no interference is called for by this Division with that portion of the direction given by the High Court Division in the impugned judgment and order (as quoted hereinbefore). But the direction given by the High Court Division so far as it relates to give “salary and fringe benefits” to the writ-petitioners is concerned that cannot be maintained altogether for the reason that admittedly, the writ-petitioners worked upto February, 2003, whereas the impugned judgment and order was passed on 5-1-2011 and if the direction of the High Court Division is given effect then they shall have to be paid salary and fringe benefits from March, 2003 till the pronouncement of the judgment in spite of their not being in service during that period and thereby they did not render any service to the Board. However, as the writ-petitioners rendered service to the Board till February, 2003 they are surely entitled to get the salary and fringe benefits up to February, 2003 from January, 1998 (admittedly the writ petitions were paid the salaries and fringe benefits upto December, 1997). It may be stated that in paragraph 4 of the writ petition, it was stated to the effect “That although the appointment of the petitioners was for the tenure of the project which expired on 30-6-1995 but they were allowed to continue in their services till February, 2003 and the respondents received their services without any fresh appointment as of other regular employees of the Cotton Development Board.” The writ-respondents did not deny the above quoted facts asserted in the writ petition and thus the claim of the writ-petitioners that the Board received their services upto February, 2003 is an admitted fact. It further appears that the impugned judgment and order was passed on 5-1-2011 and no order was passed by this Division staying operation of the same and we believe that by this time, the writ-respondents have included the writ-petitioners in the revenue set up of the Board as per the direction given by the High Court Division.
This leave petition is disposed of with the above modification of the direction of the High Court Division in respect of the salary and fringe benefits to be paid to the writ-petitioners.
Ed
