(From previous issue) :
‘However, the authority concerned decided that the Service Rules, 1989 of the abolished City Corporation will remain applicable for regulating and controlling the services of the employees of those two City Corporations. He submits that all on a sudden, the Respondents issued Memo No-05.132.046.00.00.011.2011-338, dated 29-3-2012 (Annexure-‘E’) under the signature of Respondent No.3, transferring Respondent Nos. 6 & 7 to the post of Chief Accounts Officer of Dhaka North City Corporation and Dhaka South City Corporation from the post of Director, Railway Audit Department, Dhaka and Director, High Commission Audit Department, Dhaka, respectively in contravention of the Item No-17 of the schedule of the Dhaka Municipal Corporation Employees Service Rules, 1989.
17. Mr. AM Aminuddin, the learned Advocate for the respondent No. 6 submits that the petitioners. has been enjoying the benefit of the Organogram by working in the post of Deputy Chief Accounts Officer, on the other hand, he has challenged the order which was made on the basis of the other provision of the Organogram, i.e. appointment of the Chief Accounts Officer by way of deputation. Since the petitioner cannot blow hot and cold in the same breath, his writ petition is not maintainable. Me further submits that after bifurcation of the City Corporation, all the posts of the then City Corporation have been abolished and now posts have been created for both the City Corporations. At the time of creating the post, the conditions, qualifications and their criteria for appointment and promotion have been clearly spelt out by the Ministry of Finance and provision having been made for appointment by way of deputation as well, the grievance of the writ petitioner does not have any leg to stand and consequently, on that count as well, the Rule issued in the instant writ petition is liable to be discharged.
18. We have heard the learned Advocate of both sides, perused the Writ Petition, its Annexure, Supplementary Affidavit, its annexure, Affidavit-in-Opposition, its Annexure, Affidavit-in-Reply and its Annexure.
19. The writ petitioner’s main contention is that as per XvKv †cŠi K‡c©v‡ikb Kg©Pvix PvKzix wewagvjv, 1989. (hereinafter referred to as the Service Rules, 1989), the Memo No. 05.132.046.00.00. 011.2011 -338 dated 29-3-2012 (Annexure-E) issued under the signature of Respondent No. 3, transferring Respondent Nos. 6 and 7 to the post of Chief Accounts Officer at Dhaka North City Corporation and Dhaka South City Corporation from the post of Director, Railway Audit Department, Dhaka and Director Health Commission, Audit Department, Dhaka respectively are without lawful authority on the ground that the said appointments were made in contravention of the Item No. 17 of the schedule of the said Service Rules, 1989.
20. On the other hand, respondent No. 6 stated in his Affidavit-in-Opposition that as per the said Service Rules, 1989, the authority can post any employee on deputation to any post in the Dhaka South City Corporation and Dhaka North City Corporation. Upon complying with the said Rules, the respondent No. 6 has been transferred from his earlier post of Director, Railway Audit Department to the post of Chief Accounts Officer, Dhaka North City Corporation. Respondent No. 6 also argued that after bifurcation of the City Corporation, all the posts of the then City Corporation have been abolished and new posts have been created for both the City Corporations. At the time of creating the post, the conditions, qualifications and their criteria for appointment and promotion have been clearly spelt out by the Ministry of Finance providing for appointment by way of deputation.
21. The question that arises is that whether the said Service Rules, 1989 is in existence or not after the bifurcation of Dhaka City Corporation into Dhaka North City Corporation and Dhaka South City Corporation.
22. The said Service Rules, 1989 was enacted in 1989 under Section 157 of the Dhaka Municipality Ordinance, 1983. Subsequently, the Ordinance, 1983 was repealed by the Local Government (City Corporation) Act, 2009 in 2009. Under Section 126(3) of the said Act, 2009, his service Rules remained in force. Subsequently, Local Government (City Corporation) Act, 2009 was amended by the Dhaka City Corporation Act, 2011″ and by that amendment, Dhaka City Corporation was bifurcated into Dhaka South City Corporation and Dhaka North City Corporation.
23. In the Act, a new section was inserted by way of amendment as 3Ka which runs as follows:
“??? (?) ?? ????? ???????? ?????? ???? ????? ????? ?? ???, ???? ?(?) ?? ???? ?????????? ???? ???? ???????????, ???? ????? ???? ?????????? ??? ???? ?????? ???? ?????????? ???? ?????? ?????
(?) ???? ???? ?????????? ?? ????????? ? ????????, ?????, ??????, ??, ??? ? ???????, ?????? ??? ¯’???-?¯’??? ??? ????????, ??? ? ?????? ¯?’??, ???????? ?????? ?????, ??????? ??? ???? ??? ?????? ??? ????? ?????????? ???? ??? ???? ?????? ?? ?????? ???????? ??? ??????? ? ?????? ??? ??? ??, ???????????, ?????????? ??? ???? ??? ????-???????? ?????, ???? ?????? ????????? ????????, ??? ???? ?????? ?? ???? ??????? ?????? ???? ??????, ???? ????? ?????????? ? ???? ?????? ???? ??????????? ?????????, ?????????, ??????, ¯’??????? ?? ???? ????¯’? ????? ??????
(?) ???? ???? ?????????? ?????? ?? ???? ???????? ???????? ????? ?? ????????? ?????????, ???? ????? ???? ?????????? ?? ???? ?????? ???? ?????????? ?????? ?? ???? ???????? ???????? ????? ?? ????????? ????? ???? ?????
(?) ???? ???? ?????????? ????”? ????????? ??????? ??? ????????, ??-???, ????, ?????????, ????? ?? ????? ?????? ??????? ???????? ???? ??? ???????? ??? ????, ?????????, ???? ????? ???? ?????????? ? ???? ?????? ???? ?????????? ?? ???????? ???????? ???? ??? ???? ???? ?????????? ?????? ??????? ??? ????????, ??????, ?????? ??, ??????? ?????????, ???? ????? ???? ?????????? ? ???? ?????? ???? ?????????? ?????? ???????, ?????????? ?? ?????? ????? ???? ?????”
??. ?? ?????? ?? ??????? ???, ??? ??? ???????? ?????, ???-?????, ????????????, ?????? ????? ??? ???????? ?? ?????????. ???????????? ?? ????? ????? ?-?-????, ??? ????????? ????????? ??????? ???? ??? ??????? ???? ?? ???? ???? ?????? ?????????? ??? ?????????? ??? ??????????? ??? ???????? ?? ??? ????????? ?? ????? ??? ???? ????????????, ??? ?????? ?? ??? ???? ????????, ?? ????????? ?? ????????-? ?? ??? ???? ???????? ??? ??? ???????? ??????? ?? ??? ???? ??????? ?? ????? ????:?
“(?) ????? ????? ???????? ???????????? ????????? ????????? ????¯’? ????? ???? ????
(?) ¯’???? ????? (???? ??????????) ???, ???? ?? ???(?) ??? ¯’???? ????? (???? ??????????) ???, ???? ?? ?(?) ???? ??????? ??????? ???? ???? ??????????? ?????? ???????? ??????? ????? ????????? ????? ??????”
??. ?? ????, ?? ???? ???? ??? ????? ???? ??????????? ????????? ??????? ?????, ???? ?? ????? ?? ????????? ??? ??? ???????? ?? ????? ????? ???? ??????????? ??? ????? ????? ???? ???????????.
??. ??? ??? ???????? ?? ??????? ??? ???? ??????? ????? ??????? ????? ????? ???? ??????????? ??? ????? ????? ???? ??????????? ??? ??????????? ?? ????? ????? ???????? ??????? ?? ??????????.
??. ??? ?? ??????? ??? ???????? ?????.
??. ?? ???? ???????? ???? ? ??? ? ??? ???????? ?? ?? ??? ??????? ???? ????? ??? ?????? ????:?
“?? ????? ??????? (?) ?? ?????? ??? ??????? ????????? ????????, ??? ??? ??????????? ???????? ????? ??? ??? ?????, ?????
(?) ?????? ??????? ??????? ;
(?) ????????? ??????? ;
(?) ??????? ????? ??????? ; ???
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(?) ??? ???? ???? ??? ???????? ????????? ??????? ?? ?????? ??? ?????? ??????? ????????, ????? ??? ???? ???? ???? ?????? ????????? ???????? ????? ?? ????, ?????? ???? ??? ????? ??? ???? ?? ?
??? ???? ???? ??, ??????? ??????? ??????? ??? ????? ??????? ???????????? ???????? ???? ??????? ?????????? ?????
?? ??????? ?????? ??????? ????????? ????????, ??? ??? ??????? ??????? ???????? ????????? ?????????, ????? ?? ??? ¯’???? ??????????? ??? ??????? ??????????, ????????? ????? ?? ??? ¯’???? ??????????? ??? ??????? ??????????, ????????? ????? ?? ?????????, ????????? ¯’???? ??????????? ???????? ????? ¯?’???? ????????? ????? ????? ???????
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?????? ? ??????? ????????? ?????? ? ?????? ???????? ???? ??, ?? (?? ??????) ?? ????? ? ????? ??????? ?? ?????? ?????? ???????? ??????? ???? ?????
???????? ? ????? ??? ??, ?? (?? ??????) ?? ????? ????? ????????? ?????? ?? ?????? ???????? ???? ??????? ?”??????? ????????? ???? ?????
29. Rule 3 enumerates the system of appointment wherein the appointment on deputation is one of them, but subject to the schedule of the said Service Rules, 1989, Rule 8 also stipulates that the authority can post any employee of the Corporation on deputation subject to the schedule of the said Service Rules, 1989. Item No. 17 of the Schedule of the said Service Rules contains that the post” of Chief Accounts Officer shall be filled in either by promotion or by direct appointment, which does not render any scope to transfer any employee on deputation to that post. In other words, the Dhaka City Corporation Employees Service Rules, 1989 does not permit the authority concerned to appoint any employee as Chief Accounts Officer on deputation.
30. Admittedly, respondent No. 6 and respondent No. 7 have both been appointed as Chief Accounts Officer of Dhaka North City Corporation and Dhaka South City Corporation, respectively on deputation which is in contravention of the said Service Rules, 1989.
31. Mr. AM Aminuddin, the learned Advocate for respondent No.6, pointed out that before 1990, the then Dhaka Municipal Corporation (subsequently, named as “Dhaka City Corporation”) was following the Service Rules, 1989, wherein the post of Chief Accounts Officer was there under Serial No. 17 of the schedule and the post below the Chief Accounts Officer was the Accounts Officer. Subsequently, in 1990, the Government approved the organogram of the Municipal Corporation which was recommended by the committee formed for re-organization the original structure. By the said organogram for the first time, the post of Deputy Chief Accounts Officer was introduced. In the said Organogram also a provision was made for appointment of Chief Accounts Officer by way of deputation, as such, his appointment cannot be said to be illegal.
32. We have seen the organogram of 1990 and it is found in the Organogram that there is a provision for appointment to the post of Chief Accountant on deputation, but it is admitted that it was not inserted in the said service Rules of 1989. Organogram and Service Rules are different things. Organogram means an organizational chart, showing graphically the relation of one official to another or others of an establishment. It is also used to show the relation of one department to another or others, or of one Function of an organization to another, or others. However, the service Rule is a governing law to govern the service of the employees. As such, if any appointment is made without following the Service Rules, that cannot be sustained on the ground that the provision is permitted by its organogram.
33. Regarding respondent No. 6’s arguments in respect of approbation and reprobation, the doctrine applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provision of a Statute, (vide CFT vs P Firm Muur. AIR 1965 SC 1216).
34. Since the said Service Rules, 1989 was framed in exercising of power conferred by Dhaka Municipal Corporation Ordinance, 1983, it has the force of law. As such, any violation of law cannot be legalised by taking the advantages of the doctrine of approbation and reprobation.
35. Considering the facts and circumstances, we find substance in the submissions of the learned Advocate for the petitioner.
36. Accordingly, the Rule is made absolute.
The impugned Memo No.05. 132.046.00.00.01. 2011-338 dated 29-3-2012 (Annexure-E) issued under the signature of respondent No. 3 is declared to have been passed without lawful authority and to be of no legal effect.
37. However, since the Respondent No.6 and 7 are Government servants, they joined in the post of Chief Accounts Officer of Dhaka South City Corporation and Dhaka North City Corporation respectively in compliance with the directive passed by the Government. Therefore, they cannot be deprived from their service benefits.
Accordingly, the respondents are directed to revert back respondent No. 6 and 7 to their respective parent post with all service benefits, including continuity of seniority immediately after receipt of the order.
There is no order as to costs.
(Concluded)
‘However, the authority concerned decided that the Service Rules, 1989 of the abolished City Corporation will remain applicable for regulating and controlling the services of the employees of those two City Corporations. He submits that all on a sudden, the Respondents issued Memo No-05.132.046.00.00.011.2011-338, dated 29-3-2012 (Annexure-‘E’) under the signature of Respondent No.3, transferring Respondent Nos. 6 & 7 to the post of Chief Accounts Officer of Dhaka North City Corporation and Dhaka South City Corporation from the post of Director, Railway Audit Department, Dhaka and Director, High Commission Audit Department, Dhaka, respectively in contravention of the Item No-17 of the schedule of the Dhaka Municipal Corporation Employees Service Rules, 1989.
17. Mr. AM Aminuddin, the learned Advocate for the respondent No. 6 submits that the petitioners. has been enjoying the benefit of the Organogram by working in the post of Deputy Chief Accounts Officer, on the other hand, he has challenged the order which was made on the basis of the other provision of the Organogram, i.e. appointment of the Chief Accounts Officer by way of deputation. Since the petitioner cannot blow hot and cold in the same breath, his writ petition is not maintainable. Me further submits that after bifurcation of the City Corporation, all the posts of the then City Corporation have been abolished and now posts have been created for both the City Corporations. At the time of creating the post, the conditions, qualifications and their criteria for appointment and promotion have been clearly spelt out by the Ministry of Finance and provision having been made for appointment by way of deputation as well, the grievance of the writ petitioner does not have any leg to stand and consequently, on that count as well, the Rule issued in the instant writ petition is liable to be discharged.
18. We have heard the learned Advocate of both sides, perused the Writ Petition, its Annexure, Supplementary Affidavit, its annexure, Affidavit-in-Opposition, its Annexure, Affidavit-in-Reply and its Annexure.
19. The writ petitioner’s main contention is that as per XvKv †cŠi K‡c©v‡ikb Kg©Pvix PvKzix wewagvjv, 1989. (hereinafter referred to as the Service Rules, 1989), the Memo No. 05.132.046.00.00. 011.2011 -338 dated 29-3-2012 (Annexure-E) issued under the signature of Respondent No. 3, transferring Respondent Nos. 6 and 7 to the post of Chief Accounts Officer at Dhaka North City Corporation and Dhaka South City Corporation from the post of Director, Railway Audit Department, Dhaka and Director Health Commission, Audit Department, Dhaka respectively are without lawful authority on the ground that the said appointments were made in contravention of the Item No. 17 of the schedule of the said Service Rules, 1989.
20. On the other hand, respondent No. 6 stated in his Affidavit-in-Opposition that as per the said Service Rules, 1989, the authority can post any employee on deputation to any post in the Dhaka South City Corporation and Dhaka North City Corporation. Upon complying with the said Rules, the respondent No. 6 has been transferred from his earlier post of Director, Railway Audit Department to the post of Chief Accounts Officer, Dhaka North City Corporation. Respondent No. 6 also argued that after bifurcation of the City Corporation, all the posts of the then City Corporation have been abolished and new posts have been created for both the City Corporations. At the time of creating the post, the conditions, qualifications and their criteria for appointment and promotion have been clearly spelt out by the Ministry of Finance providing for appointment by way of deputation.
21. The question that arises is that whether the said Service Rules, 1989 is in existence or not after the bifurcation of Dhaka City Corporation into Dhaka North City Corporation and Dhaka South City Corporation.
22. The said Service Rules, 1989 was enacted in 1989 under Section 157 of the Dhaka Municipality Ordinance, 1983. Subsequently, the Ordinance, 1983 was repealed by the Local Government (City Corporation) Act, 2009 in 2009. Under Section 126(3) of the said Act, 2009, his service Rules remained in force. Subsequently, Local Government (City Corporation) Act, 2009 was amended by the Dhaka City Corporation Act, 2011″ and by that amendment, Dhaka City Corporation was bifurcated into Dhaka South City Corporation and Dhaka North City Corporation.
23. In the Act, a new section was inserted by way of amendment as 3Ka which runs as follows:
“??? (?) ?? ????? ???????? ?????? ???? ????? ????? ?? ???, ???? ?(?) ?? ???? ?????????? ???? ???? ???????????, ???? ????? ???? ?????????? ??? ???? ?????? ???? ?????????? ???? ?????? ?????
(?) ???? ???? ?????????? ?? ????????? ? ????????, ?????, ??????, ??, ??? ? ???????, ?????? ??? ¯’???-?¯’??? ??? ????????, ??? ? ?????? ¯?’??, ???????? ?????? ?????, ??????? ??? ???? ??? ?????? ??? ????? ?????????? ???? ??? ???? ?????? ?? ?????? ???????? ??? ??????? ? ?????? ??? ??? ??, ???????????, ?????????? ??? ???? ??? ????-???????? ?????, ???? ?????? ????????? ????????, ??? ???? ?????? ?? ???? ??????? ?????? ???? ??????, ???? ????? ?????????? ? ???? ?????? ???? ??????????? ?????????, ?????????, ??????, ¯’??????? ?? ???? ????¯’? ????? ??????
(?) ???? ???? ?????????? ?????? ?? ???? ???????? ???????? ????? ?? ????????? ?????????, ???? ????? ???? ?????????? ?? ???? ?????? ???? ?????????? ?????? ?? ???? ???????? ???????? ????? ?? ????????? ????? ???? ?????
(?) ???? ???? ?????????? ????”? ????????? ??????? ??? ????????, ??-???, ????, ?????????, ????? ?? ????? ?????? ??????? ???????? ???? ??? ???????? ??? ????, ?????????, ???? ????? ???? ?????????? ? ???? ?????? ???? ?????????? ?? ???????? ???????? ???? ??? ???? ???? ?????????? ?????? ??????? ??? ????????, ??????, ?????? ??, ??????? ?????????, ???? ????? ???? ?????????? ? ???? ?????? ???? ?????????? ?????? ???????, ?????????? ?? ?????? ????? ???? ?????”
??. ?? ?????? ?? ??????? ???, ??? ??? ???????? ?????, ???-?????, ????????????, ?????? ????? ??? ???????? ?? ?????????. ???????????? ?? ????? ????? ?-?-????, ??? ????????? ????????? ??????? ???? ??? ??????? ???? ?? ???? ???? ?????? ?????????? ??? ?????????? ??? ??????????? ??? ???????? ?? ??? ????????? ?? ????? ??? ???? ????????????, ??? ?????? ?? ??? ???? ????????, ?? ????????? ?? ????????-? ?? ??? ???? ???????? ??? ??? ???????? ??????? ?? ??? ???? ??????? ?? ????? ????:?
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(?) ¯’???? ????? (???? ??????????) ???, ???? ?? ???(?) ??? ¯’???? ????? (???? ??????????) ???, ???? ?? ?(?) ???? ??????? ??????? ???? ???? ??????????? ?????? ???????? ??????? ????? ????????? ????? ??????”
??. ?? ????, ?? ???? ???? ??? ????? ???? ??????????? ????????? ??????? ?????, ???? ?? ????? ?? ????????? ??? ??? ???????? ?? ????? ????? ???? ??????????? ??? ????? ????? ???? ???????????.
??. ??? ??? ???????? ?? ??????? ??? ???? ??????? ????? ??????? ????? ????? ???? ??????????? ??? ????? ????? ???? ??????????? ??? ??????????? ?? ????? ????? ???????? ??????? ?? ??????????.
??. ??? ?? ??????? ??? ???????? ?????.
??. ?? ???? ???????? ???? ? ??? ? ??? ???????? ?? ?? ??? ??????? ???? ????? ??? ?????? ????:?
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?? ??????? ?????? ??????? ????????? ????????, ??? ??? ??????? ??????? ???????? ????????? ?????????, ????? ?? ??? ¯’???? ??????????? ??? ??????? ??????????, ????????? ????? ?? ??? ¯’???? ??????????? ??? ??????? ??????????, ????????? ????? ?? ?????????, ????????? ¯’???? ??????????? ???????? ????? ¯?’???? ????????? ????? ????? ???????
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?????? ? ??????? ????????? ?????? ? ?????? ???????? ???? ??, ?? (?? ??????) ?? ????? ? ????? ??????? ?? ?????? ?????? ???????? ??????? ???? ?????
???????? ? ????? ??? ??, ?? (?? ??????) ?? ????? ????? ????????? ?????? ?? ?????? ???????? ???? ??????? ?”??????? ????????? ???? ?????
29. Rule 3 enumerates the system of appointment wherein the appointment on deputation is one of them, but subject to the schedule of the said Service Rules, 1989, Rule 8 also stipulates that the authority can post any employee of the Corporation on deputation subject to the schedule of the said Service Rules, 1989. Item No. 17 of the Schedule of the said Service Rules contains that the post” of Chief Accounts Officer shall be filled in either by promotion or by direct appointment, which does not render any scope to transfer any employee on deputation to that post. In other words, the Dhaka City Corporation Employees Service Rules, 1989 does not permit the authority concerned to appoint any employee as Chief Accounts Officer on deputation.
30. Admittedly, respondent No. 6 and respondent No. 7 have both been appointed as Chief Accounts Officer of Dhaka North City Corporation and Dhaka South City Corporation, respectively on deputation which is in contravention of the said Service Rules, 1989.
31. Mr. AM Aminuddin, the learned Advocate for respondent No.6, pointed out that before 1990, the then Dhaka Municipal Corporation (subsequently, named as “Dhaka City Corporation”) was following the Service Rules, 1989, wherein the post of Chief Accounts Officer was there under Serial No. 17 of the schedule and the post below the Chief Accounts Officer was the Accounts Officer. Subsequently, in 1990, the Government approved the organogram of the Municipal Corporation which was recommended by the committee formed for re-organization the original structure. By the said organogram for the first time, the post of Deputy Chief Accounts Officer was introduced. In the said Organogram also a provision was made for appointment of Chief Accounts Officer by way of deputation, as such, his appointment cannot be said to be illegal.
32. We have seen the organogram of 1990 and it is found in the Organogram that there is a provision for appointment to the post of Chief Accountant on deputation, but it is admitted that it was not inserted in the said service Rules of 1989. Organogram and Service Rules are different things. Organogram means an organizational chart, showing graphically the relation of one official to another or others of an establishment. It is also used to show the relation of one department to another or others, or of one Function of an organization to another, or others. However, the service Rule is a governing law to govern the service of the employees. As such, if any appointment is made without following the Service Rules, that cannot be sustained on the ground that the provision is permitted by its organogram.
33. Regarding respondent No. 6’s arguments in respect of approbation and reprobation, the doctrine applies only to the conduct of parties. As in the case of estoppel, it cannot operate against the provision of a Statute, (vide CFT vs P Firm Muur. AIR 1965 SC 1216).
34. Since the said Service Rules, 1989 was framed in exercising of power conferred by Dhaka Municipal Corporation Ordinance, 1983, it has the force of law. As such, any violation of law cannot be legalised by taking the advantages of the doctrine of approbation and reprobation.
35. Considering the facts and circumstances, we find substance in the submissions of the learned Advocate for the petitioner.
36. Accordingly, the Rule is made absolute.
The impugned Memo No.05. 132.046.00.00.01. 2011-338 dated 29-3-2012 (Annexure-E) issued under the signature of respondent No. 3 is declared to have been passed without lawful authority and to be of no legal effect.
37. However, since the Respondent No.6 and 7 are Government servants, they joined in the post of Chief Accounts Officer of Dhaka South City Corporation and Dhaka North City Corporation respectively in compliance with the directive passed by the Government. Therefore, they cannot be deprived from their service benefits.
Accordingly, the respondents are directed to revert back respondent No. 6 and 7 to their respective parent post with all service benefits, including continuity of seniority immediately after receipt of the order.
There is no order as to costs.
(Concluded)
