High Court Division
(Special Original Jurisdiction)
Farah Mahbub J
Md Ejarul Haque Akondo J
Judgment
March 9th, 2014.
Hossain Ali (Md) and 22
others ” .Petitioners
Vs
Bangladesh, represented by the Secretary, Ministry of Education and others …………….Respondents
Constitution of Bangladesh, 1972
Articles 27 and 29
Bangladesh Civil Service Recruitment
Rules, 1981
Rule 8(1)(a)
Rule provides with the power of relaxation of the condition of length of experience for promotion in exceptional cases but since the petitioners and the persons whose length of experience had been relaxed by a notification have been given the same length of experience of 4 years’ to be acquired in the feeder post for promotion hence issuance of the notification only for the post of Assistant Headmaster/ Headmistress of Government High School by passing the petitioners’ posts of Assistant District Education Officers is absolutely discriminatory and violative to the fundamental rights as guaranteed under Articles 27 and 29 of the Constitution.
Justice will better be served if a direction is given upon the respondents to issue notification relaxing the length of experience of the petitioners in their feeder posts of Assistant District Education Officers for promotion to the posts of District Education Officer and Headmaster/ Headmistress of Government High Schools like those of the Assistant Headmasters/Headmistresses. Be that as it may the respondents are hereby directed to issue notification relaxing the period of experience in the feeder post of Assistant District Education Officer by 2 (two) years for one time within 30 days from the date of receipt of the copy of this judgment if not otherwise found disqualified and to give effect the notification from the same date as of the impugned notification. ………..(14 & 15)
Abdul Wadud Bhuiyan, Senior Advocate with Syed Mokaddas Ali, Advocate-For the Petitioners.
Amatul Karim, DAG with Nusrat Jahan, AAG-For the Respondents.
Judgment
Kazi Md Ejarul Hague Akondo J: This Rule Nisi, under Article 102 of the Constitution of the People’s Republic of Bangladesh, was issued calling upon the respondents to show cause as to why the Notification No. 37.00.0000.071.02.016.92 (Ask-4)-798 (Ask-4)-798 dated 13-8-2013 issued by respondent No.1 (Annexure-G) relaxing the period of experience only in the feeder post of Assistant Headmaster/ Headmistress by 2(two) years without relaxing the period of experience in the feeder post of Assistant District Education Officers who are similarly situated under the Bangladesh Civil Service Recruitment Rules, 1981 for promotion to the posts of Headmaster/ Headmistress of the Government High Schools and District Education Officer, should not be declared to be ultra vires to the Bangladesh Civil Service Recruitment Rules, 1981 and Articles 27 and 29 of the Constitution and to have been issued without lawful authority and is of no legal effect and also as to why the respondents concerned should not be directed to issue a notification relaxing the period of experience in both the feeder posts of the Assistant Headmaster/Headmistress and Assistant District Education Officer for one time within 2 (two) months from the date of the receipt of the copy of the order of this Hon’ble Court and /or such other or further order or orders passed as to this Court may seem fit and power.
2. At the time of issuance of the Rule the operation of the impugned Notification
No. 37.00.0000. 071.02.016.92 (Ask-4) 13-8-2013 issued by the respondent No.1 (Annexure-G) relaxing the period of experience only in the feeder post of Assistant Headmaster/headmistress by 2(two) years without relaxing the period of experience in the feeder post of Assistant District Education Officer for promotion to the posts of Headmaster/headmistress of the government High Schools and District Education Officer was stayed for a period of 6 (six) months from date.
3. Facts, in short, are that the petitioners were promoted to the feeder posts of Assistant District Education Officers by the Government on different dates in between the years 2011-2012 and that they have been performing their functions to the full satisfaction of the Government and the Director General, Secondary and Higher Education Directorate, Dhaka at different District Education Offices and other educational institutions (as detailed in paragraph No. 4 to the writ petition).
4. In the Bangladesh Civil Service Recruitment Rules, 1981 (in short, the Rules), Part-VII BCS (General Education), Serial No. 17 the posts of (a) District Education Officer (b) Headmaster and (c) Headmistress have been given the same status and have been placed in the same position. However, the said Rule contains provision for filling up the respective posts 80% by promotion from the feeder posts of the Assistant Inspectors and Assistant Inspectresses of Schools, Assistant District Education Officers, Assistant Headmasters and Assistant Headmistresses of Government High Schools, these feeder posts have been giving the same status and position. The said Rule provide that for promotion to the post of District Education Officer or Headmaster/ Headmistress 4(four) years’ experience will be necessary in the feeder post of Assistant District Education Officer or Assistant Headmaster/Headmistress Government High Schools. The requirement of 4(four) years’ experience, however, is equally applicable to both the said posts. Thus, the petitioners who are Assistant District Education Officers have been subjected to hostile discrimination for the respondent No. 1 vide notification being No. 37. 00. 0000. 071. 02. 016. 92 dated 138-2013 had relaxed the period of experience in the feeder post of Assistant Headmaster/ Headmistress by reducing the same from 4(four) years to 2(two) years for public interest, without relaxing the period of experience for Assistant District Education Officers, which has been impugned in this writ petition.
5. It is further stated that after issuance of the impugned notification dated 13-8-2013 the respondents have most illegally taken steps to promote the Assistant Headmasters and Assistant Headmistresses and if any promotion is given on the basis of the said notification the same will affect the seniority of the petitioners which is violative of their fundamental rights as guaranteed under the Constitution of the People’s Republic of Bangladesh (Annexures-G and G1).
6. Being aggrieved by the said impugned, Notification dated 13-8-2013 the petitioners have filed the writ petition and obtained the instant Rule Nisi.
7. On receipt of the copy of the Rule Nisi the respondent No.5, the Chairman, Bangladesh Public Service Commission, Dhaka has filed an affidavit-in-opposition stating that the Ministry of Education did not seek any advice from the Commission about the impugned Notification dated 13-8-2013 and as such it is illogical and unwarranted to make the Public Service Commission respondent in the writ petition.
8. The respondent No.6, the Director General, Secondary and Higher Secondary Education Directorate, Dhaka by filing an affidavit-in-opposition also states that there was huge number of vacancies in the post of Headmasters in the Government Secondary Schools and hence, it became necessary to relax the tenure of the feeder post of the Headmasters for the purpose of managing the Schools and for the betterment of education. However, there was no such imminent necessity for the post of District Education Officer, which is merely an administrative post.
9. At the outset, Mr Abdul Wadud Bhuiyan, the learned Senior Advocate appearing on behalf of the petitioners mainly submits that the BCS Recruitment Rules, 1981 in Schedule-II, Part-VII BCS (General Education), Serial No. 17, Column No.5 have laid down the same period of experience in the feeder posts of the Assistant Headmaster/Headmistress of Government High Schools and Assistant District Education Officer for promotion to the posts of Headmaster/ Headmistress of the Government High Schools and District Education Officers, but issuance of the impugned Notification dated 13-8-2013 by the respondent No.1 (Annexure-G) relaxing the period of experience only in the feeder post of Assistant Headmaster/ Headmistress by 2 years for one time is ex-facie illegal, discriminatory and against the fundamental right of equal treatment. As such, Mr Bhuiyan prays for making the Rule absolute with a direction upon the respondents to issue notification relaxing the period of experience in the feeder post of the Assistant District Education Officer for promotion as given to the Assistant Headmaster/ Headmistress by the impugned notification.
10. On the other hand, Mrs Amatul Karim, the learned Deputy Attorney-General, appearing on behalf of the respondents by referring Rule 8(1)(a) of the BCS Recruitment Rules, 1981 contends that the President of the Republic may, on the recommendation of the Council Committee on Promotion constituted by the Government, relax in exceptional cases the condition of length of experience for promotion specified in Schedule-II and, as such, the respondent No.1 has rightly issued the impugned notification relaxing the period of experience only in the feeder post of Assistant Headmaster/Headmistress by 2 years for one time and thereby no illegality has committed.
11. However, Mrs Amatul Karim also goes to contend that the writ petitioners filed an application to the respondent No.6 on 18-2-2014 praying for promotion to the posts of District Education Officers/Headmasters from amongst the Assistant District Education Officers and Assistant Headmasters according to their seniority, and acknowledged to withdraw the instant writ petition. The respondent No.6 on receiving the said application forwarded it to the respondent No.1 on 26-2-2014 for necessary steps. But in the meantime, the respondent No.1 sent a summary to the Hon’ble President in the month of November 2013 for his kind perusal and consideration regarding relaxation of the period of length of experience in the feeder post of the Assistant District Education Officer for promotion like the Assistant Headmaster/Headmistress, which is yet to be decided.
12. We have heard both the sides, perused the writ petition along with its annexures and the affidavits- in-opposition.
13. It appears from Schedule-II, Part-VII BCS (General Education) Serial No. 17, Column No. 5 of the BCS Recruitment Rules, 1981 that the period of experience in the feeder posts of the Assistant Headmaster/ Headmistress of Government High School and the Assistant District Education Officer for promotion to the posts of Headmaster/ Headmistress of the Government High School and the District Education Officer is same but the respondent No.1 in exercise of the mandate given in Rule 8(1) (a) of the said Recruitment Rules, 1981 issued the impugned notification (Annexure-G) which reads as under:
“8. Relaxation: (1) Notwithstanding anything contained in these rules-
(a) the President may, on the recommendation of the Council Committee on Promotion constituted by the Government relax in exceptional cases the condition of length of experience for promotion specified in Schedule-II;”
14. It is true that the said Rule provides, the power of relaxation of the condition of length experience for promotion in exceptional cases but since the petitioners and the persons whose length of experience had been relaxed by till impugned notification (Annexure-G) have been given the same length of experience of 4 years; to be acquired in the feeder post for promotion hence issuance of the impugned notification only for the post of Assistant Headmaster/Headmistress Government High School by passing the petitioners’ posts of Assistant District Education Officers is absolutely discriminatory and violative to the fundamental rights as guaranteed under Articles 27 and 29 of the Constitution.
15. In view of the forgoing discussions and findings, we are inclined to hold that justice will better be served if a direction is given upon the respondents to issue notification relaxing the length of experience of the petitioners in their feeder posts of Assistant District Education Officers for promotion to the posts of District Education Officer and Headmaster/Headmistress of Government High Schools like those of the Assistant Headmasters/Headmistresses. Be that as it may, the respondents are hereby directed to issue notification relaxing the period of experience in the feeder post of Assistant District Education Officer by 2 (two) years for one time within 30 days from the date of receipt of the copy of this judgment if not otherwise found disqualified and to give effect the notification from the same date as of the impugned notification dated 13-8-2013 (Annexure-G).
16. In the light of the above observations the Rule is disposed of without any order as to cost.
Stay granted at the time of issuance of the Rule is hereby vacated.
(Special Original Jurisdiction)
Farah Mahbub J
Md Ejarul Haque Akondo J
Judgment
March 9th, 2014.
Hossain Ali (Md) and 22
others ” .Petitioners
Vs
Bangladesh, represented by the Secretary, Ministry of Education and others …………….Respondents
Constitution of Bangladesh, 1972
Articles 27 and 29
Bangladesh Civil Service Recruitment
Rules, 1981
Rule 8(1)(a)
Rule provides with the power of relaxation of the condition of length of experience for promotion in exceptional cases but since the petitioners and the persons whose length of experience had been relaxed by a notification have been given the same length of experience of 4 years’ to be acquired in the feeder post for promotion hence issuance of the notification only for the post of Assistant Headmaster/ Headmistress of Government High School by passing the petitioners’ posts of Assistant District Education Officers is absolutely discriminatory and violative to the fundamental rights as guaranteed under Articles 27 and 29 of the Constitution.
Justice will better be served if a direction is given upon the respondents to issue notification relaxing the length of experience of the petitioners in their feeder posts of Assistant District Education Officers for promotion to the posts of District Education Officer and Headmaster/ Headmistress of Government High Schools like those of the Assistant Headmasters/Headmistresses. Be that as it may the respondents are hereby directed to issue notification relaxing the period of experience in the feeder post of Assistant District Education Officer by 2 (two) years for one time within 30 days from the date of receipt of the copy of this judgment if not otherwise found disqualified and to give effect the notification from the same date as of the impugned notification. ………..(14 & 15)
Abdul Wadud Bhuiyan, Senior Advocate with Syed Mokaddas Ali, Advocate-For the Petitioners.
Amatul Karim, DAG with Nusrat Jahan, AAG-For the Respondents.
Judgment
Kazi Md Ejarul Hague Akondo J: This Rule Nisi, under Article 102 of the Constitution of the People’s Republic of Bangladesh, was issued calling upon the respondents to show cause as to why the Notification No. 37.00.0000.071.02.016.92 (Ask-4)-798 (Ask-4)-798 dated 13-8-2013 issued by respondent No.1 (Annexure-G) relaxing the period of experience only in the feeder post of Assistant Headmaster/ Headmistress by 2(two) years without relaxing the period of experience in the feeder post of Assistant District Education Officers who are similarly situated under the Bangladesh Civil Service Recruitment Rules, 1981 for promotion to the posts of Headmaster/ Headmistress of the Government High Schools and District Education Officer, should not be declared to be ultra vires to the Bangladesh Civil Service Recruitment Rules, 1981 and Articles 27 and 29 of the Constitution and to have been issued without lawful authority and is of no legal effect and also as to why the respondents concerned should not be directed to issue a notification relaxing the period of experience in both the feeder posts of the Assistant Headmaster/Headmistress and Assistant District Education Officer for one time within 2 (two) months from the date of the receipt of the copy of the order of this Hon’ble Court and /or such other or further order or orders passed as to this Court may seem fit and power.
2. At the time of issuance of the Rule the operation of the impugned Notification
No. 37.00.0000. 071.02.016.92 (Ask-4) 13-8-2013 issued by the respondent No.1 (Annexure-G) relaxing the period of experience only in the feeder post of Assistant Headmaster/headmistress by 2(two) years without relaxing the period of experience in the feeder post of Assistant District Education Officer for promotion to the posts of Headmaster/headmistress of the government High Schools and District Education Officer was stayed for a period of 6 (six) months from date.
3. Facts, in short, are that the petitioners were promoted to the feeder posts of Assistant District Education Officers by the Government on different dates in between the years 2011-2012 and that they have been performing their functions to the full satisfaction of the Government and the Director General, Secondary and Higher Education Directorate, Dhaka at different District Education Offices and other educational institutions (as detailed in paragraph No. 4 to the writ petition).
4. In the Bangladesh Civil Service Recruitment Rules, 1981 (in short, the Rules), Part-VII BCS (General Education), Serial No. 17 the posts of (a) District Education Officer (b) Headmaster and (c) Headmistress have been given the same status and have been placed in the same position. However, the said Rule contains provision for filling up the respective posts 80% by promotion from the feeder posts of the Assistant Inspectors and Assistant Inspectresses of Schools, Assistant District Education Officers, Assistant Headmasters and Assistant Headmistresses of Government High Schools, these feeder posts have been giving the same status and position. The said Rule provide that for promotion to the post of District Education Officer or Headmaster/ Headmistress 4(four) years’ experience will be necessary in the feeder post of Assistant District Education Officer or Assistant Headmaster/Headmistress Government High Schools. The requirement of 4(four) years’ experience, however, is equally applicable to both the said posts. Thus, the petitioners who are Assistant District Education Officers have been subjected to hostile discrimination for the respondent No. 1 vide notification being No. 37. 00. 0000. 071. 02. 016. 92 dated 138-2013 had relaxed the period of experience in the feeder post of Assistant Headmaster/ Headmistress by reducing the same from 4(four) years to 2(two) years for public interest, without relaxing the period of experience for Assistant District Education Officers, which has been impugned in this writ petition.
5. It is further stated that after issuance of the impugned notification dated 13-8-2013 the respondents have most illegally taken steps to promote the Assistant Headmasters and Assistant Headmistresses and if any promotion is given on the basis of the said notification the same will affect the seniority of the petitioners which is violative of their fundamental rights as guaranteed under the Constitution of the People’s Republic of Bangladesh (Annexures-G and G1).
6. Being aggrieved by the said impugned, Notification dated 13-8-2013 the petitioners have filed the writ petition and obtained the instant Rule Nisi.
7. On receipt of the copy of the Rule Nisi the respondent No.5, the Chairman, Bangladesh Public Service Commission, Dhaka has filed an affidavit-in-opposition stating that the Ministry of Education did not seek any advice from the Commission about the impugned Notification dated 13-8-2013 and as such it is illogical and unwarranted to make the Public Service Commission respondent in the writ petition.
8. The respondent No.6, the Director General, Secondary and Higher Secondary Education Directorate, Dhaka by filing an affidavit-in-opposition also states that there was huge number of vacancies in the post of Headmasters in the Government Secondary Schools and hence, it became necessary to relax the tenure of the feeder post of the Headmasters for the purpose of managing the Schools and for the betterment of education. However, there was no such imminent necessity for the post of District Education Officer, which is merely an administrative post.
9. At the outset, Mr Abdul Wadud Bhuiyan, the learned Senior Advocate appearing on behalf of the petitioners mainly submits that the BCS Recruitment Rules, 1981 in Schedule-II, Part-VII BCS (General Education), Serial No. 17, Column No.5 have laid down the same period of experience in the feeder posts of the Assistant Headmaster/Headmistress of Government High Schools and Assistant District Education Officer for promotion to the posts of Headmaster/ Headmistress of the Government High Schools and District Education Officers, but issuance of the impugned Notification dated 13-8-2013 by the respondent No.1 (Annexure-G) relaxing the period of experience only in the feeder post of Assistant Headmaster/ Headmistress by 2 years for one time is ex-facie illegal, discriminatory and against the fundamental right of equal treatment. As such, Mr Bhuiyan prays for making the Rule absolute with a direction upon the respondents to issue notification relaxing the period of experience in the feeder post of the Assistant District Education Officer for promotion as given to the Assistant Headmaster/ Headmistress by the impugned notification.
10. On the other hand, Mrs Amatul Karim, the learned Deputy Attorney-General, appearing on behalf of the respondents by referring Rule 8(1)(a) of the BCS Recruitment Rules, 1981 contends that the President of the Republic may, on the recommendation of the Council Committee on Promotion constituted by the Government, relax in exceptional cases the condition of length of experience for promotion specified in Schedule-II and, as such, the respondent No.1 has rightly issued the impugned notification relaxing the period of experience only in the feeder post of Assistant Headmaster/Headmistress by 2 years for one time and thereby no illegality has committed.
11. However, Mrs Amatul Karim also goes to contend that the writ petitioners filed an application to the respondent No.6 on 18-2-2014 praying for promotion to the posts of District Education Officers/Headmasters from amongst the Assistant District Education Officers and Assistant Headmasters according to their seniority, and acknowledged to withdraw the instant writ petition. The respondent No.6 on receiving the said application forwarded it to the respondent No.1 on 26-2-2014 for necessary steps. But in the meantime, the respondent No.1 sent a summary to the Hon’ble President in the month of November 2013 for his kind perusal and consideration regarding relaxation of the period of length of experience in the feeder post of the Assistant District Education Officer for promotion like the Assistant Headmaster/Headmistress, which is yet to be decided.
12. We have heard both the sides, perused the writ petition along with its annexures and the affidavits- in-opposition.
13. It appears from Schedule-II, Part-VII BCS (General Education) Serial No. 17, Column No. 5 of the BCS Recruitment Rules, 1981 that the period of experience in the feeder posts of the Assistant Headmaster/ Headmistress of Government High School and the Assistant District Education Officer for promotion to the posts of Headmaster/ Headmistress of the Government High School and the District Education Officer is same but the respondent No.1 in exercise of the mandate given in Rule 8(1) (a) of the said Recruitment Rules, 1981 issued the impugned notification (Annexure-G) which reads as under:
“8. Relaxation: (1) Notwithstanding anything contained in these rules-
(a) the President may, on the recommendation of the Council Committee on Promotion constituted by the Government relax in exceptional cases the condition of length of experience for promotion specified in Schedule-II;”
14. It is true that the said Rule provides, the power of relaxation of the condition of length experience for promotion in exceptional cases but since the petitioners and the persons whose length of experience had been relaxed by till impugned notification (Annexure-G) have been given the same length of experience of 4 years; to be acquired in the feeder post for promotion hence issuance of the impugned notification only for the post of Assistant Headmaster/Headmistress Government High School by passing the petitioners’ posts of Assistant District Education Officers is absolutely discriminatory and violative to the fundamental rights as guaranteed under Articles 27 and 29 of the Constitution.
15. In view of the forgoing discussions and findings, we are inclined to hold that justice will better be served if a direction is given upon the respondents to issue notification relaxing the length of experience of the petitioners in their feeder posts of Assistant District Education Officers for promotion to the posts of District Education Officer and Headmaster/Headmistress of Government High Schools like those of the Assistant Headmasters/Headmistresses. Be that as it may, the respondents are hereby directed to issue notification relaxing the period of experience in the feeder post of Assistant District Education Officer by 2 (two) years for one time within 30 days from the date of receipt of the copy of this judgment if not otherwise found disqualified and to give effect the notification from the same date as of the impugned notification dated 13-8-2013 (Annexure-G).
16. In the light of the above observations the Rule is disposed of without any order as to cost.
Stay granted at the time of issuance of the Rule is hereby vacated.
