Appellate Division (Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Shamsul Huda J
Government of Bangladesh, represented by the Secretary, Ministry of Education and others.
Judgment August 6th, 2012.
Vs.
Md Abul Kalam Azad and others ….. Respondents
Constitution of Bangladesh, 1972 Articles 103(3) and 140(2)
Judgment of the High Court Division is modified and the writ petitioners claim for absorption in the revenue set up will be considered by the petitioners in the light of the guidelines given by this Division. . ….. (6)
Civil Petition Leave to Appeal No. 1781 of 2011 = 17 BLC (AD) 91 relied on.
Rajik-al-Jalil DAG instructed be Md Shamsuf Alam, Advocate-on-Record-For the Petitioners.
Md Aftab Hossain, Advocate-on-Record-For Respondent Nos, 1, 4, 6-7 & 8.
None Represented-For Respondent Nos.2-3, 5 & 9-10.
Judgment
SK Sinha J : This petition at the instance of the writ respondents is against a judgment of the High Court Division in Writ Petition N 0.4088 of 2010 directing the petitioners to transfer the service of the writ petitioners against the vacant posts under the revenue set up.
2. Facts relevant for the disposal of this petition are thus; the writ petitioners along with others were appointed as sweepers under 53 Thana Education Project Officers. Initially the project was valid till December 1999 but it was subsequently extended under different names and continued until the year 2007. Since 2007, they have been working without any salary. The Ministry of Education has recommended for absorbing the writ petitioners posts in the revenue budget. From the same project 256 post holders were absorbed in the revenue budget. Ultimately by the impugned memo dated 17th March 2009 the Ministry of’ Establishment declined to transfer the writ petitioners to the revenue budget. Inspite of that the Ministry of Education requested that the sweepers should be transferred to the revenue budget and by its memo dated 9th September, 2009 the intimated the writ petitioners that in view of the memo of the Ministry of Establishment dated 17th March, 2009 transfer of their posts to the revenue, budget would not be considered. It was contended that in project profile, there was provision for transferring the writ petitioners to the revenue set up after conclusion of the project and that since there were 130 vacant posts of sweepers there was no reason for the petitioners not to absorb them in those vacant posts.
3. It was argued on behalf of the petitioners that though the post of 7 sweepers appeared
to have been approved by the Ministry of Education, there was no evidence that they had actually been absorbed in those posts; that the appointment letters of the writ petitioners clearly stated the conditions of service to the effect that they were temporarily appointed against a project and that as such, they could claim to be absorbed as of right in the revenue set up.
4. The High Court Division upon hearing the parties observed that though there is no direction that the persons appointed under the project would be absorbed in the revenue set up after completion of the project there is indication from annexure-D that they would be absorbed that in the absence of project profile it is not possible for ascertaining the terms upon which the project document refers to the aspect to the revenue set up; that the Ministry of Education has decided to absorb 7 out of 63 persons appointed as sweepers in the same project and thus the writ petitioners could expect that they would be treated in the same way subject to the availability of the posts. The High Court Division then considered an unreported judgment dated 22nd April, 2010 of the High Court Division in Writ Petition No. 849 of 2009, in which, another Division Bench directed to absorb 20 sweepers out of 63 who were appointed at the same time and observed that the Government should not discriminate the writ petitioners in considering their case of transferring their service to the revenue set up.
5. The learned Deputy Attorney-General has taken us to the writ petition, the annexures, the previous judgment of this Division on the same subject matter and submits that since this Division has settled the point on the question of absorption in the revenue budget, who had been appointed in various development projects after reviewing all previous judgments, the judgment of the High Court Division is apparently inconsistent with the views taken by this Division.
6. Admittedly the writ petitioners were appointed on a development project on temporary basis. They claimed their absorption in the revenue set up on the ground that some other sweepers who stand on the same footing have been absorbed in the revenue set up and that here is also recommendation for their absorption in the revenue set up. This Division after reviewing all previous judgments on the question of absorption has given guide lines for absorption in the revenue set up in Civil Petition No 1781 of 2011 disposed of with 8 other petitions in which cases, the writ petitioners were also appointed in development projects. We cannot take any contrary view in the absence of cogent ground for taking exception from the said views. In view of the above, the judgment of the High Court Division is modified and the writ petitioner’s claim for absorption in the revenue set up will be considered by the petitioners in the light of the guidelines given by this Division in the above judgment which are as under:
(i) Whenever any vacancy in LGED is created in the revenue set up it shall consider for absorption of employees or officers of the development projects within the meaning of section 2(ga) of the Rules, 2005, if the project in which s/he is working is completed subject to the condition that such employee or officer has requisite qualifications for the said post.
(ii) Whenever a vacant post is created in the revenue budget, the LGED shall absorb/ transfer an employee or officer from the development project mentioned in clause (1) to fill up that post in accordance with Rules of 1985 and the ECNEC’s decision dated 10th January, 2008.
(iii) An officer or employee shall be absorbed if s/he was appointed in the development project within the meaning of rule 2(ka) of Rules, 2005 in accordance with the procedures prescribed for appointment in public employment.
(iv) An officer or employee must have requisite qualifications for the post in which he is seeking absorption.
(v) An officer or employee must have continuity in service in the project in which he is working.
(vi) An officer or employee must have satisfactory service record before his case is considered for regularization in the revenue budget.
(vii) If an officer and employee whose rank and status does not relate to the posts advertised by the impugned notifications on the day of its publications, such officer or employee would not be eligible for consideration for absorption.
(viii) The employees and officers who have been working in the development projects mentioned in clause (1) on monthly pay basis would only be eligible for consideration for absorption in the revenue budget.
(ix) Unless, and until vacancies in revenue budget in the LGED are created, the employment and officers of the development projects mentioned in clause (1) cannot claim as of right to be absorbed in the revenue budget.
(x) While considering and selecting an employee or officer of the development project for absorption on the revenue budget, the appointing authority shall maintain strictly the prevailing quota system for employment in the public employment being followed by the Government.
(xi) The LGED shall consider the cases of those working on master roll basis for
absorption in the revenue budget by phases if they have requisite qualifications subject to availability of vacancies according to their seniority.
This petition is disposed of with the above observations.
