High Court Division
(Special Original Jurisdiction)
Tariq-ul-Hakim J
ATM Saifur Rahman J
Judgment
February 6th, 2013
WDS Naushad Ali Khan …
Petitioner in Writ
Petition No. 8063 of2012
Vs
Government of Bangladesh
and others ….. Respondents
Public Servant (Retirement) Act (XII of 1974) Section 4
Bangladesh Biman Corporation Employees (Service) Regulations, 1979
Regulation 11
Since the employees of Biman are public servants within the meaning of the Act, therefore the provisions of the Act will be applicable from the date of its amendment i.e. since the petitioners were in service of Biman and did not reach the age of 59 years when the amended was made, therefore they will be entitled to get advantage of the amended statutory provision. . ….. (22)
Ajay Hasia vs Khalid Mujib Sehravardi (1981) I SCC 722; Ramana Dayram Shetty vs International Airport Authority (1979) 3 SCC 489 and Bangladesh Biman Corporation vs Let Col (Retd) Md Zainul Abedin, 5 BLC (AD) 169 ref.
Abdul Matin Khasru, Senior Advocate-For the Petitioner
Mahbubey Alam, Senior Advocate with Md. Ekramul Haque-For the Respondents Nos. 2 and 3.
Judgment
ATM Saifur Rahman J : These two Rules concern of facts akin to each other and involve common question of law and, as such, were taken up together for hearing and are being disposed of by this single judgment.
2. In writ petition No. 8063 of 2012 Rule was issued on an application calling upon the respondents to show cause as to why the impugned Memo No. DHAKGF/P-31095/2012/285 dated 30-1-2012 issued by the respondent No.4, informing the petitioner that he will retire from his service in Biman on 20-6-2012 at the age of 57 (Annexure-A), should not be declared to have been made without lawful authority and is of no legal effect and/or such other or further order or orders passed to this Court may seem fit and proper.
3. Similarly in writ petition No. 9864 of 2012 Rule was issued calling upon the respondents to show cause as to why the impugned Memo No. DHAKGF/P-32126/20 12/475 dated 29-2-2012 (Annexure-D) issued under signature of the Personal Officer, Biman Bangladesh Airlines Limited (Respondent No.4) asking the petitioner to retire from the service of Biman on 27-7-2012 at the 57th year of his age, shall not be declared to have been made without lawful authority and is of no legal effect and why the Respondents shall not be directed to allow the petitioner to remain in the service of Biman till the 59th year of age according to the provisions of Section 4 of the Public Servants (Retirement) Act, 1974 (as amended by the Act No.2 of2012 with effect from 26-12-2011); and/or pass such other or further order or orders as to this Court may seem fit and proper.
4. For the purpose of disposal of these Rules the relevant facts in short are as follow:
5. In writ petition No. 8063 of 2012, the petitioner joined the service of Biman Bangladesh Airlines Limited as junior Traffic Assistant on 15-5-1978. On successive promotions he rose up to the post of Manager (Ground service) on 24-12-2001. While the petitioner was carrying out his services and discharging his duties all on a sudden he received the impugned order of his retirement being Memo No. DHAKGF/P- 31095/2012/285 dated 30-1-2012 issued by the respondent No.4 to the effect that he will retire from his service in Biman on 20-6-2012 at the age of 57 as per Bangladesh Biman Corporation Employees (Pension and Gratuity) Regulations 1988. The Government has increased the retirement age of public servants from 57 years to 59 years vide Public Servants (Retirement) (Amendment) Act 2012 which has come into force with effect from 26-12-2011. Since the petitioner is a public servant, his retirement age should be 59 instead of 57.
6. Being aggrieved with the aforesaid impugned order dated 30-1-2012 thereafter the petitioner has preferred this application before this Court under Article 102 of the Constitution and obtained the instant Rule.
7. In writ petition No. 9864 of 2012, the petitioner joined the service of Biman Bangladesh Airlines as Junior Cargo Assistant on 23-5-1981. On successive promotions he rose up to the post of Assistant Manager Commercial on 12-12-2011. While the petitioner was carrying out his services and discharging his duties all on a sudden he received the impugned notice of his retirement being Memo No. DHAKGF/P-32126 /2012/475 dated 29-2-2012 issued by the respondent No.4 to the effect that he would retire from the service of Biman on 27-7-2012 at the age of 57 years of his age, as per Bangladesh Biman Corporation Employees (Pension and Gratuity) Regulations 1988.The Government has increased the retirement age of public servants from 57 years to 59 years vide Public Servants (Retirement) (Amendment) Act 2012 which has come into effect from 26-12-2011. Since the petitioner is a public servant, his retirement age should be 59 instead of 57. Being aggrieved with the aforesaid impugned letter dated 29-2-2012 (Annexure-D) the petitioner has preferred this application before this Court under Article 102 of the constitution and obtained the instant Rule.
8. Affidavit in opposition has been filed on behalf of the respondent Biman Bangladesh Airlines Limited where it has been stated that Biman Bangladesh Airlines Limited is now a Public Limited Company under the Companies Act 1994 as per Gazette Notification dated 2-8-2007. After incorporation of the Company the Board of Directors shall be entitled to make the final decision as to the retirement age of its employees and other matters and that the provisions of Public Servants Retirement Act will not be applicable to the employees of Biman Bangladesh Airlines Limited.
9. In support of the Rules Mr Abdul Matin Khasru the learned Advocate appearing on behalf of the petitioners led us through the petition and the Annexure enclosed therewith. The learned Advocate submits that both the petitioners have long and unblemished career and served Biman Bangladesh Airlines Limited with full satisfaction of their authorities. In this connection he referred to (Annexure-B) series of his two writ petitions.
10. He further submits that while both the petitioners were carrying out their services and discharging their duties all on a sudden they received the impugned notice being Memo No DHAKGF /P-31095/2012/285 dated 30-1-2012 and Memo No. DHAKGF/P-32126/2012/475 dated 29-2-2012 respectively issued by the respondent No.4 informing them that they will retire from their service in Biman on 20-6-2012 and 27-7-2012 at the age of 57 years as per provisions of Bangladesh Biman Corporation Regulation 1988 which are absolutely illegal and void. In order to substantiate his arguments he pointed out that the Government has increased the retirement age of public servants from 57 years to 59 years vide Public Servants (Retirement) (Amendment ) Act 2012 which has come into force with effect from 26-12-2011. Since the petitioners are public servant, their retirement .age would be 59 instead of 57 and, as such, both the impugned order issued by the respondent No.4 are illegal and void and have no legal effect.
11. Mr Mahbubey Alam the learned senior counsel appearing on behalf of the respondents submits that Bangladesh Biman Corporation has now been converted into Biman Bangladesh Airlines Limited by way of Gazette notification dated 2-8-2007. Now it is a public limited company and not a statutory body. Accordingly the petitioners are not public servants within the meaning of Section 2(d) of the Public Servants (Retirement) Act, 1974 and their tenure of office was governed by Bangladesh Biman Corporation (Pension and Gratuity) Rules 1988. Both the impugned notices of their retirement were issued in accordance with the provision of Bangladesh Biman Corporation (pension and Gratuity) Rules 1988 and, as such, these Rules are liable to be discharged.
12. The learned Advocate further submitted that Biman Bangladesh Airlines Limited being a limited Company, its Board of Directors are the final authority to take decisions regarding retirement of its employees and in the instant case the Board of Directors of Biman in its 98th and 101st meeting held on 4th September 2012 and 9th October 2012 enhanced the retirement age of Biman employees to 59 years with effect from 9th October 2012. Since the petitioners has already reached the age of 57 before 9th October 2012 therefore they could not take advantage of this amendment and, as such, these Rules have no merit and liable to be discharged.
13. The submissions on behalf of both sides have received our careful scrutiny in the light of the relevant laws. In the instant case the pertinent question to decide is whether the writ petitioners are entitled to get the benefits of Public Servants (Retirement) (Amendment) Act 2012. They will get the benefits of the said statute only if they are public servants within the meaning of the Public Servants (Retirement) Act, 1974.
14. A public servant has been defined in Section 2(d) of the Act as follows:
“Public servant” includes any person who is for the time being, in the service of the Republic or of any Corporation, nationalized enterprise or local authority or who, on the basis of having at any time been in the service of Pakistan, purports to claim any right to employment in the service of the Republic, but does not include any persons who–
o is employed in or under a Commission, Committee or board set up for a temporary period for specified purposes,
o is a contingent or work charged employee-or a worker as defined in the State-owned Manufacturing Industries Workers (Terms and Conditions of service) Ordinance 1973 (v) holds any office which is filled by election or nomination under any law, or
o holds any office the tenure of which is determined by or under any law.”
15. Biman Bangladesh Airlines Limited is a public Limited Company. Now we have to decide whether the Biman Bangladesh Airlines Limited is a Corporation or Nationalized Enterprise or Local Authority. If the organisation is an instrumentality or agency of the Government it may come within the meaning of the expression of local authority. The concept of instrumentality of agency of the Government is not limited to a corporation created by a statute but is equally applicable to a Company. In the case of Ajay Hasia vs Khalid Mujib Sehravardi (1981)1 SCC 722 the Indian Supreme Court enumerated six factors which would regulate whether or not an organisation is to be regarded as an instrumentality or agency of the Government by legal fiction. Such principal was approved in the case of Ramana Dayram Shetty vs International Airport Authority (1979) 3 sec 489. We may now summarise the relevant test gathered from the decision in the International Airport Authority’s case for determining the Corporation or entity as instrumentality or agency of Government which are as follows:
1. “One thing is clear that if the entire share capital of the Corporation is held by Government it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government.”
2. “Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character”.
3. “It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.”
4. “Existence of deep and pervasive State control may afford an indication that at the Corporation is a State agency or instrumentality.”
5. “If the function of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government.”
6. “Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government”
16. All the tests must match with the case in hand to ascertain whether the subject matter of the case in hand is just a local authority/company /corporation or it is indeed an agency of the State, carrying on functions of public nature.
17. On perusal of the Memorandum of Association and Articles of Association of Biman Bangladesh Airlines Limited it appears to us that the 100% share is owned by the Government and all the Board of Directors are public servants and they are also appointed by the Government which indicates that the exclusive control and management of Biman Bangladesh Airlines Limited is governed by the State and carrying on functions of public nature.
18. After considering the aforesaid tests we are of the view that Biman Bangladesh Airlines Gazette Notification dated 2-8-2007 is a local authority. Its employees including the petitioners therefore are public servants with the meaning of Public Servants (Retiremen) Act, 1974.
19. Every statutory body or agency of the government has their own regulations or bye laws which govern the terms and conditions of their service. Regulations and bye laws which are contrary or repugnant to the laws or statute of the realm are void and of no effect. This view finds support in the case of Bangladesh Biman Corporation vs Let Col (Retd) Md Zainul Abedin reported in 5 BLC (AD) 2000 page 169, wherein it has been held: “The Bangladesh Biman Corporation Ordinance 1977 has not given authority to override other laws by the service Regulations. Biman Service Regulations would have been void if a tenure different from the tenure prescribed by the Act would have been prescribed.”
20. The Government has enhanced the retirement age of the Public Servants from 57 years to 59 years vide section 4 of the Public Servants (Retirement) Act 1974 as amended on 26-12-2011. After conversion into a Public Limited Company Biman Bangladesh Airlines Limited is still governed by the Bangladesh Biman Corporation employees (service) Regulations 1979.
21. As per Regulation II of Biman Corporation. Employees (service) Regulations 1979 the retirement age of its employees is 57 years.
22. Though Biman Bangladesh Airlines Limited subsequently incorporated the provision regarding the age of retirement of its employees as prescribed by the Act, by its Board of Directors vide its administrative order No. 25 of 2012 dated 29-10-2012 but this order comes into force with effect from 9-10-2012. So there is a clear conflict between these two provisions so far as the date of its commencement is concerned. Section 4 of the Public Servants (Retirement) Act as amended came into force on 26-12-2011. Since the employees of Biman are Public servants within the meaning of the said Act therefore the provisions of the Act will be applicable from the date of its amendment i.e. 26-12-2011. Since the petitioners were in service of Biman as on 26-12-2011 and did not reach the age of 59 years up to 26-12-2011 they will be entitled to get advantage of the amended statutory provision. Thus Biman administrative Order No. 25 dated 29-10-2012 (Annexure-Q) will be void as regards its date of coming into force in view of the clear provisions of amended section 4 of the statute, which categorically states that it will be effective from 26-12-2011.
23. Having given our best consideration to the submission of the learned Advocate for the petitioners as well as materials on record, we are of the view that there is a substance in the application filed by the petitioners under Article 102 of the constitution.
24. In the result the Rules are made absolute.
The impugned notices of retirement of the petitioners at the age of 57 years being Memo No. DHAKGF/P-31095/2012/285 dated 30-1-2012 (Annexure-A) in the writ petition No. 8063 of 2012 and Memo No. DHAKGF/P- 32126/2012/ 475 dated 29-2-2012 (Annexure-D) in writ petition No. 9864 of2012 are hereby declared to have
been passed illegally and without lawful authority. The respondents are hereby directed to reinstate the petitioners in their previously held respective posts in Biman with all back salaries, seniority and other benefits within 10(ten) days of receipt of a copy of this judgment and allow them to continue their service till they reach the age of 59 years. There will be no order as to costs.
(Special Original Jurisdiction)
Tariq-ul-Hakim J
ATM Saifur Rahman J
Judgment
February 6th, 2013
WDS Naushad Ali Khan …
Petitioner in Writ
Petition No. 8063 of2012
Vs
Government of Bangladesh
and others ….. Respondents
Public Servant (Retirement) Act (XII of 1974) Section 4
Bangladesh Biman Corporation Employees (Service) Regulations, 1979
Regulation 11
Since the employees of Biman are public servants within the meaning of the Act, therefore the provisions of the Act will be applicable from the date of its amendment i.e. since the petitioners were in service of Biman and did not reach the age of 59 years when the amended was made, therefore they will be entitled to get advantage of the amended statutory provision. . ….. (22)
Ajay Hasia vs Khalid Mujib Sehravardi (1981) I SCC 722; Ramana Dayram Shetty vs International Airport Authority (1979) 3 SCC 489 and Bangladesh Biman Corporation vs Let Col (Retd) Md Zainul Abedin, 5 BLC (AD) 169 ref.
Abdul Matin Khasru, Senior Advocate-For the Petitioner
Mahbubey Alam, Senior Advocate with Md. Ekramul Haque-For the Respondents Nos. 2 and 3.
Judgment
ATM Saifur Rahman J : These two Rules concern of facts akin to each other and involve common question of law and, as such, were taken up together for hearing and are being disposed of by this single judgment.
2. In writ petition No. 8063 of 2012 Rule was issued on an application calling upon the respondents to show cause as to why the impugned Memo No. DHAKGF/P-31095/2012/285 dated 30-1-2012 issued by the respondent No.4, informing the petitioner that he will retire from his service in Biman on 20-6-2012 at the age of 57 (Annexure-A), should not be declared to have been made without lawful authority and is of no legal effect and/or such other or further order or orders passed to this Court may seem fit and proper.
3. Similarly in writ petition No. 9864 of 2012 Rule was issued calling upon the respondents to show cause as to why the impugned Memo No. DHAKGF/P-32126/20 12/475 dated 29-2-2012 (Annexure-D) issued under signature of the Personal Officer, Biman Bangladesh Airlines Limited (Respondent No.4) asking the petitioner to retire from the service of Biman on 27-7-2012 at the 57th year of his age, shall not be declared to have been made without lawful authority and is of no legal effect and why the Respondents shall not be directed to allow the petitioner to remain in the service of Biman till the 59th year of age according to the provisions of Section 4 of the Public Servants (Retirement) Act, 1974 (as amended by the Act No.2 of2012 with effect from 26-12-2011); and/or pass such other or further order or orders as to this Court may seem fit and proper.
4. For the purpose of disposal of these Rules the relevant facts in short are as follow:
5. In writ petition No. 8063 of 2012, the petitioner joined the service of Biman Bangladesh Airlines Limited as junior Traffic Assistant on 15-5-1978. On successive promotions he rose up to the post of Manager (Ground service) on 24-12-2001. While the petitioner was carrying out his services and discharging his duties all on a sudden he received the impugned order of his retirement being Memo No. DHAKGF/P- 31095/2012/285 dated 30-1-2012 issued by the respondent No.4 to the effect that he will retire from his service in Biman on 20-6-2012 at the age of 57 as per Bangladesh Biman Corporation Employees (Pension and Gratuity) Regulations 1988. The Government has increased the retirement age of public servants from 57 years to 59 years vide Public Servants (Retirement) (Amendment) Act 2012 which has come into force with effect from 26-12-2011. Since the petitioner is a public servant, his retirement age should be 59 instead of 57.
6. Being aggrieved with the aforesaid impugned order dated 30-1-2012 thereafter the petitioner has preferred this application before this Court under Article 102 of the Constitution and obtained the instant Rule.
7. In writ petition No. 9864 of 2012, the petitioner joined the service of Biman Bangladesh Airlines as Junior Cargo Assistant on 23-5-1981. On successive promotions he rose up to the post of Assistant Manager Commercial on 12-12-2011. While the petitioner was carrying out his services and discharging his duties all on a sudden he received the impugned notice of his retirement being Memo No. DHAKGF/P-32126 /2012/475 dated 29-2-2012 issued by the respondent No.4 to the effect that he would retire from the service of Biman on 27-7-2012 at the age of 57 years of his age, as per Bangladesh Biman Corporation Employees (Pension and Gratuity) Regulations 1988.The Government has increased the retirement age of public servants from 57 years to 59 years vide Public Servants (Retirement) (Amendment) Act 2012 which has come into effect from 26-12-2011. Since the petitioner is a public servant, his retirement age should be 59 instead of 57. Being aggrieved with the aforesaid impugned letter dated 29-2-2012 (Annexure-D) the petitioner has preferred this application before this Court under Article 102 of the constitution and obtained the instant Rule.
8. Affidavit in opposition has been filed on behalf of the respondent Biman Bangladesh Airlines Limited where it has been stated that Biman Bangladesh Airlines Limited is now a Public Limited Company under the Companies Act 1994 as per Gazette Notification dated 2-8-2007. After incorporation of the Company the Board of Directors shall be entitled to make the final decision as to the retirement age of its employees and other matters and that the provisions of Public Servants Retirement Act will not be applicable to the employees of Biman Bangladesh Airlines Limited.
9. In support of the Rules Mr Abdul Matin Khasru the learned Advocate appearing on behalf of the petitioners led us through the petition and the Annexure enclosed therewith. The learned Advocate submits that both the petitioners have long and unblemished career and served Biman Bangladesh Airlines Limited with full satisfaction of their authorities. In this connection he referred to (Annexure-B) series of his two writ petitions.
10. He further submits that while both the petitioners were carrying out their services and discharging their duties all on a sudden they received the impugned notice being Memo No DHAKGF /P-31095/2012/285 dated 30-1-2012 and Memo No. DHAKGF/P-32126/2012/475 dated 29-2-2012 respectively issued by the respondent No.4 informing them that they will retire from their service in Biman on 20-6-2012 and 27-7-2012 at the age of 57 years as per provisions of Bangladesh Biman Corporation Regulation 1988 which are absolutely illegal and void. In order to substantiate his arguments he pointed out that the Government has increased the retirement age of public servants from 57 years to 59 years vide Public Servants (Retirement) (Amendment ) Act 2012 which has come into force with effect from 26-12-2011. Since the petitioners are public servant, their retirement .age would be 59 instead of 57 and, as such, both the impugned order issued by the respondent No.4 are illegal and void and have no legal effect.
11. Mr Mahbubey Alam the learned senior counsel appearing on behalf of the respondents submits that Bangladesh Biman Corporation has now been converted into Biman Bangladesh Airlines Limited by way of Gazette notification dated 2-8-2007. Now it is a public limited company and not a statutory body. Accordingly the petitioners are not public servants within the meaning of Section 2(d) of the Public Servants (Retirement) Act, 1974 and their tenure of office was governed by Bangladesh Biman Corporation (Pension and Gratuity) Rules 1988. Both the impugned notices of their retirement were issued in accordance with the provision of Bangladesh Biman Corporation (pension and Gratuity) Rules 1988 and, as such, these Rules are liable to be discharged.
12. The learned Advocate further submitted that Biman Bangladesh Airlines Limited being a limited Company, its Board of Directors are the final authority to take decisions regarding retirement of its employees and in the instant case the Board of Directors of Biman in its 98th and 101st meeting held on 4th September 2012 and 9th October 2012 enhanced the retirement age of Biman employees to 59 years with effect from 9th October 2012. Since the petitioners has already reached the age of 57 before 9th October 2012 therefore they could not take advantage of this amendment and, as such, these Rules have no merit and liable to be discharged.
13. The submissions on behalf of both sides have received our careful scrutiny in the light of the relevant laws. In the instant case the pertinent question to decide is whether the writ petitioners are entitled to get the benefits of Public Servants (Retirement) (Amendment) Act 2012. They will get the benefits of the said statute only if they are public servants within the meaning of the Public Servants (Retirement) Act, 1974.
14. A public servant has been defined in Section 2(d) of the Act as follows:
“Public servant” includes any person who is for the time being, in the service of the Republic or of any Corporation, nationalized enterprise or local authority or who, on the basis of having at any time been in the service of Pakistan, purports to claim any right to employment in the service of the Republic, but does not include any persons who–
o is employed in or under a Commission, Committee or board set up for a temporary period for specified purposes,
o is a contingent or work charged employee-or a worker as defined in the State-owned Manufacturing Industries Workers (Terms and Conditions of service) Ordinance 1973 (v) holds any office which is filled by election or nomination under any law, or
o holds any office the tenure of which is determined by or under any law.”
15. Biman Bangladesh Airlines Limited is a public Limited Company. Now we have to decide whether the Biman Bangladesh Airlines Limited is a Corporation or Nationalized Enterprise or Local Authority. If the organisation is an instrumentality or agency of the Government it may come within the meaning of the expression of local authority. The concept of instrumentality of agency of the Government is not limited to a corporation created by a statute but is equally applicable to a Company. In the case of Ajay Hasia vs Khalid Mujib Sehravardi (1981)1 SCC 722 the Indian Supreme Court enumerated six factors which would regulate whether or not an organisation is to be regarded as an instrumentality or agency of the Government by legal fiction. Such principal was approved in the case of Ramana Dayram Shetty vs International Airport Authority (1979) 3 sec 489. We may now summarise the relevant test gathered from the decision in the International Airport Authority’s case for determining the Corporation or entity as instrumentality or agency of Government which are as follows:
1. “One thing is clear that if the entire share capital of the Corporation is held by Government it would go a long way towards indicating that the Corporation is an instrumentality or agency of Government.”
2. “Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with governmental character”.
3. “It may also be a relevant factor whether the corporation enjoys monopoly status which is the State conferred or State protected.”
4. “Existence of deep and pervasive State control may afford an indication that at the Corporation is a State agency or instrumentality.”
5. “If the function of the corporation of public importance and closely related to governmental functions, it would be a relevant factor in classifying the Corporation as an instrumentality or agency of Government.”
6. “Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government”
16. All the tests must match with the case in hand to ascertain whether the subject matter of the case in hand is just a local authority/company /corporation or it is indeed an agency of the State, carrying on functions of public nature.
17. On perusal of the Memorandum of Association and Articles of Association of Biman Bangladesh Airlines Limited it appears to us that the 100% share is owned by the Government and all the Board of Directors are public servants and they are also appointed by the Government which indicates that the exclusive control and management of Biman Bangladesh Airlines Limited is governed by the State and carrying on functions of public nature.
18. After considering the aforesaid tests we are of the view that Biman Bangladesh Airlines Gazette Notification dated 2-8-2007 is a local authority. Its employees including the petitioners therefore are public servants with the meaning of Public Servants (Retiremen) Act, 1974.
19. Every statutory body or agency of the government has their own regulations or bye laws which govern the terms and conditions of their service. Regulations and bye laws which are contrary or repugnant to the laws or statute of the realm are void and of no effect. This view finds support in the case of Bangladesh Biman Corporation vs Let Col (Retd) Md Zainul Abedin reported in 5 BLC (AD) 2000 page 169, wherein it has been held: “The Bangladesh Biman Corporation Ordinance 1977 has not given authority to override other laws by the service Regulations. Biman Service Regulations would have been void if a tenure different from the tenure prescribed by the Act would have been prescribed.”
20. The Government has enhanced the retirement age of the Public Servants from 57 years to 59 years vide section 4 of the Public Servants (Retirement) Act 1974 as amended on 26-12-2011. After conversion into a Public Limited Company Biman Bangladesh Airlines Limited is still governed by the Bangladesh Biman Corporation employees (service) Regulations 1979.
21. As per Regulation II of Biman Corporation. Employees (service) Regulations 1979 the retirement age of its employees is 57 years.
22. Though Biman Bangladesh Airlines Limited subsequently incorporated the provision regarding the age of retirement of its employees as prescribed by the Act, by its Board of Directors vide its administrative order No. 25 of 2012 dated 29-10-2012 but this order comes into force with effect from 9-10-2012. So there is a clear conflict between these two provisions so far as the date of its commencement is concerned. Section 4 of the Public Servants (Retirement) Act as amended came into force on 26-12-2011. Since the employees of Biman are Public servants within the meaning of the said Act therefore the provisions of the Act will be applicable from the date of its amendment i.e. 26-12-2011. Since the petitioners were in service of Biman as on 26-12-2011 and did not reach the age of 59 years up to 26-12-2011 they will be entitled to get advantage of the amended statutory provision. Thus Biman administrative Order No. 25 dated 29-10-2012 (Annexure-Q) will be void as regards its date of coming into force in view of the clear provisions of amended section 4 of the statute, which categorically states that it will be effective from 26-12-2011.
23. Having given our best consideration to the submission of the learned Advocate for the petitioners as well as materials on record, we are of the view that there is a substance in the application filed by the petitioners under Article 102 of the constitution.
24. In the result the Rules are made absolute.
The impugned notices of retirement of the petitioners at the age of 57 years being Memo No. DHAKGF/P-31095/2012/285 dated 30-1-2012 (Annexure-A) in the writ petition No. 8063 of 2012 and Memo No. DHAKGF/P- 32126/2012/ 475 dated 29-2-2012 (Annexure-D) in writ petition No. 9864 of2012 are hereby declared to have
been passed illegally and without lawful authority. The respondents are hereby directed to reinstate the petitioners in their previously held respective posts in Biman with all back salaries, seniority and other benefits within 10(ten) days of receipt of a copy of this judgment and allow them to continue their service till they reach the age of 59 years. There will be no order as to costs.
