Appellate Division
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
Bakhrabad Gas System Limited …
……………Petitioner
vs
Al Masud-ar-Noor
and others ………..
…… Respondents*
Judgment September 26th, 2013
Service Rules
Appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees.. … (9)
Dr. Kazi Akter Hamid, Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner. (in both cases)
AM Mahbubuddin Advocate instructed by Md Tafique Hossain, Advocate-on-Record-For the Respondents (in both cases)
Judgment
Md Abdul Wahhab Miah J: These two leave petitions, facts are similar and common of question law being involved, have been heard together and are disposed of by this common judgment.
2. Both the leave petitions have been filed by writ-respondent No.4, Bakhrabad Gas System Limited, represented by its Managing Director, against the judgment and order dated 21-11-2011 passed by a Division Bench of the High Court Division in Writ Petition Nos.8079 of 2010 and 9063 of 2010 respectively making the Rules absolute.
3. From the impugned judgment and order in Civil Petition for Leave Appeal No. 1923 of 2012, it appears that on an application under article 102 of the Constitution filed by the writ-petitioner respondents, herein (hereinafter referred to as the writ-petitioners), a Rule Nisi was issued in Writ Petition No.8079 of 2010 calling upon the writ respondents including the petitioner, herein (the leave petitioner was writ-respondent No.4) to show cause “as to why the impugned circular contained in memo No.21.27.93 ((fwj-3/375 dated 2-7-2009 issued by respondent No.7 (Annexure-E) for the purpose of promotion to the next higher posts should not be declared to have been made without lawful authority and is of no legal effect and why the respondents should not be directed to promote the petitioners with effect from 4-4-2010 and/or such other or further order or orders passed as to this Court may seem fit and proper.”
4. From the impugned judgment and order in Civil Petition for Leave of Appeal No.2051 of 2012, it appears that on an application under article 102 of the Constitution filed by writ-petitioner-respondents, herein (hereinafter referred to as the writ-petitioners), a Rule Nisi was issued in Writ Petition No.9063 of 2010 calling upon the writ-respondents including the petitioner, herein (the leave petitioner was respondent No.4) to show cause “as to why the impugned provision of minimum educational qualification of Bachelor Degree for the promotion of the petitioners passed in resolution dated 6-6-2005 in the 352nd Board Meeting of the Board of Directors of Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) and its adoption in the resolution dated 24-8-2005 by the Board of Directors of Bakhrabad Gas Systems Limited, in its 352nd meeting which was notified by an office order dated 18-9-2005 (Annexures M and MI to the supplementary affidavit) and the impugned circular contained in Memo No. 21-27-93(fwj-3)375 dated 2-7-2009 passed by the respondent No.5 (Annexure-J to the writ petition) keeping the same marking criteria of circular No. weR¡vLm (R¡vt wet)cÖ-2 wewea-2/2003/399 dated 19-10-2003 (Annexure-E to the writ petition) changing the marking criteria of circular No weR¡vLm (R¡t wet)cÖ-2 wewea-2/2002/379 dated95-2002 for the purpose of promotion to the next higher posts should not be declared to have been made without any lawful authority and is of no legal effect and/or such other or further order or orders be passed as to this Court may seem fit and proper.”
5. The only question involved in the two writ petitions was whether the writ-respondents could take any decision or issue any circular or in other words, could frame any service rules to put the respective writ-petitioners to a disadvantageous position than that existed when they entered into their service in Bakhrabad Gas System Limited and thus to deprive them of their right of promotion to the next higher posts. It is necessary to state that by the impugned circular and the resolution taken in the Board meeting of the Board of Directors, Oil, Gas and Mineral Corporation (Petrobangla) and its adoption by the Bakhrabad Gas System Limited, in its 352nd Board meeting of its Directors, which was notified by an office order dated 18-9-2005, a minimum educational qualification of Bachelor Degree was prescribed for promotion of the petitioners to the next higher posts in the Company. The High Court Division considering the facts and circumstances of the case, particularly, the fact that the writ-petitioners were appointed as the employees of Bakhrabad Gas Systems Limited, a company of Petrobangla before the impugned circular and the impugned resolution by its Board of Directors prescribing Bachelor Degree as minimum educational qualification for promotion to the next higher posts were issued and taken, made both the Rules absolute and directed the writ-respondents not to apply the impugned Service Rules to the writ-petitioners, (in both the writ petitions) though the same shall remain valid for those appointed subsequent to 21st September, 2005.”
6. In giving the said decision and the direction, the High Court Division held that
“It is obviously open to the company to change its service rules, within the bounds of reasonableness and the vires, though:
However, it is a theme that has been credited through universal acclamation that by changed service rules, the rights that had already been vested upon those employees who were appointed under a more advantageous service rules that existed at the time of their appointment, cannot be evaporated.
In the instant case, clearly the petitioners right to be considered for promotion would be adversely affected under the new rules, because the rules that subsisted at the time of their recruitment were more relaxed.”
7. Dr Kazi Akter Hamid, learned Advocate, appearing for the leave petitioner tried to impress upon us by submitting that because of the impugned judgment and order, the petitioner company shall not be in a position to frame new rules for its employees and implement the same and that in the long run, would hamper its functioning. Therefore, the impugned judgment and order needs to be interfered with by this Division by giving leave.
8. Mr AM Mahbubuddin, learned Advocate, entering caveat on behalf of the writ-petitioner respondents, on the other hand, supported the impugned judgment and order.
9. We do not find any substance in the submission of Dr. Akter Hamid for the simple reason that the High Court Division has not put any embargo upon the Bakhrabad Gas System Limited to frame new service rules for its employees and implement the same. The High Court Division has said in clear term that the service rules shall remain valid for those appointed subsequent to 21st September, 2005 (Bakhrabad Gas System Limited gave effect to the new circular and the resolution with effect from 21st September, 2005). The lone fact pertinent to be considered to see the propriety of the decision or the High Court Division is that admittedly when the writ-petitioners were appointed in the company, Bachelor Degree was not prescribed as the minimum educational qualification for promotion to the next higher posts. But by the impugned circular and the resolution of the Board of Directors, Bachelor Degree has been prescribed as minimum educational qualification for promotion to the next higher posts and thus, in fact, the writ petitioners’ right for consideration for promotion to the next higher posts has been made total nugatory and this is definitely great disadvantage to them. And in fact, by prescribing such minimum educational qualification, the right of the writ-petitioners for consideration for promotion to the next higher posts that accrued to them when they entered into their service has been taken away. The appointing authority has every right to amend/alter the service rules to suit the need of the time but not to the detriment or disadvantage to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service.
To be more explicit, the appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees, here the writ-petitioners. We also make it very clear that an employee shall definitely be entitled to the new service benefits if given or created by the new rules, but no rules can be framed to his disadvantage or detriment or to the denial of his accrued/vested right as in the instant case sought to be taken away. The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same.
With the above observations, the petitions are dismissed.
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
Bakhrabad Gas System Limited …
……………Petitioner
vs
Al Masud-ar-Noor
and others ………..
…… Respondents*
Judgment September 26th, 2013
Service Rules
Appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees.. … (9)
Dr. Kazi Akter Hamid, Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner. (in both cases)
AM Mahbubuddin Advocate instructed by Md Tafique Hossain, Advocate-on-Record-For the Respondents (in both cases)
Judgment
Md Abdul Wahhab Miah J: These two leave petitions, facts are similar and common of question law being involved, have been heard together and are disposed of by this common judgment.
2. Both the leave petitions have been filed by writ-respondent No.4, Bakhrabad Gas System Limited, represented by its Managing Director, against the judgment and order dated 21-11-2011 passed by a Division Bench of the High Court Division in Writ Petition Nos.8079 of 2010 and 9063 of 2010 respectively making the Rules absolute.
3. From the impugned judgment and order in Civil Petition for Leave Appeal No. 1923 of 2012, it appears that on an application under article 102 of the Constitution filed by the writ-petitioner respondents, herein (hereinafter referred to as the writ-petitioners), a Rule Nisi was issued in Writ Petition No.8079 of 2010 calling upon the writ respondents including the petitioner, herein (the leave petitioner was writ-respondent No.4) to show cause “as to why the impugned circular contained in memo No.21.27.93 ((fwj-3/375 dated 2-7-2009 issued by respondent No.7 (Annexure-E) for the purpose of promotion to the next higher posts should not be declared to have been made without lawful authority and is of no legal effect and why the respondents should not be directed to promote the petitioners with effect from 4-4-2010 and/or such other or further order or orders passed as to this Court may seem fit and proper.”
4. From the impugned judgment and order in Civil Petition for Leave of Appeal No.2051 of 2012, it appears that on an application under article 102 of the Constitution filed by writ-petitioner-respondents, herein (hereinafter referred to as the writ-petitioners), a Rule Nisi was issued in Writ Petition No.9063 of 2010 calling upon the writ-respondents including the petitioner, herein (the leave petitioner was respondent No.4) to show cause “as to why the impugned provision of minimum educational qualification of Bachelor Degree for the promotion of the petitioners passed in resolution dated 6-6-2005 in the 352nd Board Meeting of the Board of Directors of Bangladesh Oil, Gas and Mineral Corporation (Petrobangla) and its adoption in the resolution dated 24-8-2005 by the Board of Directors of Bakhrabad Gas Systems Limited, in its 352nd meeting which was notified by an office order dated 18-9-2005 (Annexures M and MI to the supplementary affidavit) and the impugned circular contained in Memo No. 21-27-93(fwj-3)375 dated 2-7-2009 passed by the respondent No.5 (Annexure-J to the writ petition) keeping the same marking criteria of circular No. weR¡vLm (R¡vt wet)cÖ-2 wewea-2/2003/399 dated 19-10-2003 (Annexure-E to the writ petition) changing the marking criteria of circular No weR¡vLm (R¡t wet)cÖ-2 wewea-2/2002/379 dated95-2002 for the purpose of promotion to the next higher posts should not be declared to have been made without any lawful authority and is of no legal effect and/or such other or further order or orders be passed as to this Court may seem fit and proper.”
5. The only question involved in the two writ petitions was whether the writ-respondents could take any decision or issue any circular or in other words, could frame any service rules to put the respective writ-petitioners to a disadvantageous position than that existed when they entered into their service in Bakhrabad Gas System Limited and thus to deprive them of their right of promotion to the next higher posts. It is necessary to state that by the impugned circular and the resolution taken in the Board meeting of the Board of Directors, Oil, Gas and Mineral Corporation (Petrobangla) and its adoption by the Bakhrabad Gas System Limited, in its 352nd Board meeting of its Directors, which was notified by an office order dated 18-9-2005, a minimum educational qualification of Bachelor Degree was prescribed for promotion of the petitioners to the next higher posts in the Company. The High Court Division considering the facts and circumstances of the case, particularly, the fact that the writ-petitioners were appointed as the employees of Bakhrabad Gas Systems Limited, a company of Petrobangla before the impugned circular and the impugned resolution by its Board of Directors prescribing Bachelor Degree as minimum educational qualification for promotion to the next higher posts were issued and taken, made both the Rules absolute and directed the writ-respondents not to apply the impugned Service Rules to the writ-petitioners, (in both the writ petitions) though the same shall remain valid for those appointed subsequent to 21st September, 2005.”
6. In giving the said decision and the direction, the High Court Division held that
“It is obviously open to the company to change its service rules, within the bounds of reasonableness and the vires, though:
However, it is a theme that has been credited through universal acclamation that by changed service rules, the rights that had already been vested upon those employees who were appointed under a more advantageous service rules that existed at the time of their appointment, cannot be evaporated.
In the instant case, clearly the petitioners right to be considered for promotion would be adversely affected under the new rules, because the rules that subsisted at the time of their recruitment were more relaxed.”
7. Dr Kazi Akter Hamid, learned Advocate, appearing for the leave petitioner tried to impress upon us by submitting that because of the impugned judgment and order, the petitioner company shall not be in a position to frame new rules for its employees and implement the same and that in the long run, would hamper its functioning. Therefore, the impugned judgment and order needs to be interfered with by this Division by giving leave.
8. Mr AM Mahbubuddin, learned Advocate, entering caveat on behalf of the writ-petitioner respondents, on the other hand, supported the impugned judgment and order.
9. We do not find any substance in the submission of Dr. Akter Hamid for the simple reason that the High Court Division has not put any embargo upon the Bakhrabad Gas System Limited to frame new service rules for its employees and implement the same. The High Court Division has said in clear term that the service rules shall remain valid for those appointed subsequent to 21st September, 2005 (Bakhrabad Gas System Limited gave effect to the new circular and the resolution with effect from 21st September, 2005). The lone fact pertinent to be considered to see the propriety of the decision or the High Court Division is that admittedly when the writ-petitioners were appointed in the company, Bachelor Degree was not prescribed as the minimum educational qualification for promotion to the next higher posts. But by the impugned circular and the resolution of the Board of Directors, Bachelor Degree has been prescribed as minimum educational qualification for promotion to the next higher posts and thus, in fact, the writ petitioners’ right for consideration for promotion to the next higher posts has been made total nugatory and this is definitely great disadvantage to them. And in fact, by prescribing such minimum educational qualification, the right of the writ-petitioners for consideration for promotion to the next higher posts that accrued to them when they entered into their service has been taken away. The appointing authority has every right to amend/alter the service rules to suit the need of the time but not to the detriment or disadvantage to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service.
To be more explicit, the appointing authority enjoys the power and the authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees, here the writ-petitioners. We also make it very clear that an employee shall definitely be entitled to the new service benefits if given or created by the new rules, but no rules can be framed to his disadvantage or detriment or to the denial of his accrued/vested right as in the instant case sought to be taken away. The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same.
With the above observations, the petitions are dismissed.
