High Court Division :
(Special Original Jurisdiction)
Gobinda Chandra Tagore J
Mohammad Ullah J
Dr Md Zahed Uddin……Petitioner
vs
Government of Bangladesh represented by the Secretary, Ministry of Education,
Bangladesh Secretariat, Dhaka-1000 and 3 (three) others……… Respondents.
Judgment July 24th, 2019
Constitution of Bangladesh, 1972
Article 102(2)
The opinion of the Ministry of Education is not binding upon the university authority as well as not applicable to the service of the petitioner.
Admittedly, the petitioner as the Additional Chief Medical Officer of the University attained the age of 60 (sixty) years on 31-7-2013. In the meantime, the Syndicate of the University at its 178th meeting amended the statute enhancing the age of the officers and employees of the University to 62 (sixty two) years from 60 (sixty) years. It appears that the petitioner was in service when the amendment in the statute was made. Accordingly, the amended provision is applicable to the service of the petitioner. It further appears that the UGC, vide memo dated 20-12-2016 sought for a decision to the Ministry of Education as to whether the amended provision of the statute of the University should be applicable to the service of the officers and employees of the University including the petitioner; in reply to the memo dated 20-12-2016 the Ministry of Education vide memo dated 8-2-2017 opined that the Teachers of the University who went on retirement before the Act, 2012 came into force on 10-7-2014 would not get service benefit in accordance with the Act, 2012…….(15 & 14)
Shahjalal University of Science and Technology Act (XV of 1987)
Sections 16 and 39
The university is governed by Act, 1987. In the Act, there was no provision relating to age of retirement of the staffs and employees of the university; but Section 39 of the Act, grants power to the university to make, amend, and cancel the service statute. The syndicate at its 178th meeting enhanced the age of retirement of the employees of the university to 62 (sixty two) years from 60 (sixty) years and accordingly while the amendment in the statute was made, the petitioner was in service………………………………………… (3 & 4)
Rimi Nahreen, Advocate-For the Petitioner
AF Hasan Arif, Advocate-For the Respondent No. 2.
Md Mojibur Rahman, Advocate-For the Respondent Nos. 3 & 4
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, this Court issued the Rule Nisi in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Memo No. BiMoC/Budget-14/2016/9444 dated 20-12-2016 issued by the respondent No. 2 restraining the petitioner from getting his full retirement benefits as per the decision dated 13-4-2013 of the 178th meeting of Syndicate of Shahjalal University of Science and Technology (Annexure-F) should not be declared to have been issued without lawful authority and is of no legal effect and as to why the Decision No. 205.15 of 205th meeting of the Syndicate of Shahjalal University of Science and Technology approving commutation of pension benefits of the petitioner should not be cancelled and/or pass such other or further order or orders as to this Court may seem fit and proper.”
2. Subsequently upon an application, a Supplementary Rule was also issued in the following terms:
“Let a supplementary Rule Nisi be issued calling upon the respondents to show cause as to why letter No. 37.00.0000.080.99.07.16/67 dated 8-2-2017, issued by the Secondary and. Higher Education Division, Ministry of Education, respondent No.1 with reference to Memo No. wegK/ev‡RU 14/2016/944 dated 20-12-2016 issued by the respondent No.2 as contained in Annexure-F shall not be declared to have been issued without lawful authority and is of no legal effect and also not applicable to the service of the petitioner and/or why such other or further order or orders as to this Court may seem fit and proper, shall not be passed.”
3. The relevant facts necessary for disposal of the Rule, as stated in the Writ Petition, are that the petitioner Dr. Md Zahed Uddin was appointed on 4-9-2000 as the Permanent Medical Officer of the Medical Center of Shahjalal University of Science and Technology, Sylhet (the University) and subsequently, he was promoted to the post of Deputy Chief Medical Officer on 28-1-2007. He was again promoted to the post of Additional Chief Medical Officer on 4-12-2014 and the University approved his promotion as Additional Chief Medical Officer on 15-12-2014. The University is Governed by Shahjalal University of Science and Technology Act, 1987 (the Act, 1987). In the said Act, 1987, there was no provision relating to age of retirement of the staffs and employees of the University; but Section 39 of the Act, 1987 grants power to the University to make, amend, and cancel the service statute. While Section 39 (Jha) and 16 of the Act, 1987 grant the Syndicate the authority to make a service statute for employees’ pension, insurance, gratuity etc. Accordingly, a service statute relating to the employees’ pension/ gratuity was prepared and presented to the Syndicate of the University and the Syndicate at its meeting approved the said service statute. Clause 19 of the service statute provides that all the employees of the University shall retire at the end of the sessions in which they reached at the age of 60 (sixty) years. The petitioner reached at the age of 60 (sixty) years on 31-7-2013.
4. In the meantime, the Syndicate at its 178th meeting held on 13-4-2013 enhanced the age of retirement of the employees of the University to 62 (sixty two) years from 60 (sixty) years and accordingly while the said amendment in the service statute was made, the petitioner was in service. The petitioner attained the age of 62 (sixty two) years on 31-7-2015 and from that date he went on Post Retirement Leave (PRL) and remained therein till 30-7-2016. The respondent No.2, University Grant Commission (UGC) by a memo dated 20-12-2016 sought for a decision to the respondent No. 1, Ministry of Education, as to whether the employees of the University would retire at the age of 62 (sixty two) years as per the decision of the Syndicate adopted at its 178th meeting. Then the respondent No.1, Ministry of Education by a memo dated 8-2-2017 informed to the Chairman, UGC that the Teachers of the University who attained the age of 60 (sixty) years before 10-7-2012, when the cvewjK wek¦we`¨vjq wkÿK (Aemi MÖnY) (we‡kl weavb) AvBb, 2012 (the Act, 2012) came into force, the Act, 2012 would not be applicable to their service. Accordingly, the University Authority with reference to the said memo dated 20-12-2016, issued by the respondent No.2, and memo dated 8-2-2017, issued by the respondent No. 1, refused to grant the pension and retirement benefits to the petitioner up to the age of 62 (sixty two) years. Thereafter, the petitioner sent a notice demanding justice upon the respondents on 13-8-2017 praying for his full retirement benefit in accordance with the amended provision of the service statute taken for the staffs and employees of the University, but the respondents did not take any steps to provide such pension and service benefits and, as such, having no other equal and efficacious remedy provided by law, the petitioner moved this Court and obtained the Rule and the Supplementary Rule as stated above.
5. None of the respondents filed the affidavit-in-opposition controverting the statements made in the writ petition.
6. However, the learned Advocate for the respondents Nos. 2-4 was allowed to make their submissions only on law points.
7. Ms Rimi Nahreen, learned Advocate appearing for the petitioner submits that the amended provision of the service statute are binding upon the University and, as such, the University Authorities are required by law to pay the petitioner’s pension and other retirement benefits as per said amended provision of the service statute and thus the impugned refusal of the University to pay the petitioner’s retirement and service benefits is liable to be declared to have been done without lawful authority.
8. The learned Advocate submits further that since the petitioner was entitled to serve the University up to the age of 62 (sixty two) years, the latest scale of pay of 2015 is applicable to the service of the petitioner and, as such, he is entitled to service benefits under the new pay scale of 2015 with effect from 1-7-2015.
9. The learned Advocate next submits that the impugned letter dated 8-2-2017 issued by the respondent No.1, Ministry of Education being related with the terms and conditions of service of the teachers only and not to the staffs and employees of the University, the same is not applicable to the petitioner’s service and, as such, said decision is not binding upon by the petitioner as well as the University and therefore the impugned refusal of the University to pay the petitioner’s retirement and pension benefits with reference to those memos dated 20.12.2016 and 8-2-2017 is liable to be declared to have been done without lawful authority and is of no legal effect.
10. Mr AF Hasan Arif, learned Advocate for the respondent No. 2, UGC, submitted that the UGC only sought for a decision to the respondent No. 1 as to whether the teachers, officers and employees of the University would get their service benefits as per the decision of the Syndicate adopted at its 178th meeting and therefore the petitioner cannot have any grievance against the UGC and accordingly, the Rule so far as it relates to the respondent No. 2, UGC, having no cause of action is liable to be discharged.
11. Mr AF Hasan Arif, learned Advocate for the respondent No. 2 submitted that he has already expressed his unwillingness to conduct any case of the UGC and, as such, UGC may be granted some time. Since we have already heard Mr AF Hasan Arif before expressing his unwillingness to conduct the case, we do not find any necessity for adjourning the pronouncement of the judgment.
12. Mr Md Mojibur Rahman, learned Advocate for the respondents No. 3 and 4, the University, submits that the Syndicate rightly enhanced the age of the employees of the University to 62 (sixty two) years at its 178th meeting held on 13-4-2013 and, as such, the University cannot go beyond its decision but they could not pay the petitioner’s service benefits due to the said two memos dated 20-12-2016 issued by the respondent No. 2 and dated 8-2-2017 issued by the respondent No.1 and in such facts and circumstances if the Rule is made absolute they would have no objection.
13. We have perused the application and considered the submissions of the learned Advocates for both the parties.
14. Admittedly, the petitioner as the Additional Chief Medical Officer of the University attained the age of 60 (sixty) years on 31-7-2013. In the meantime, the Syndicate of the University at its 178th meeting held on 13-4-2013 amended the service statute enhancing the age of the officers and employees of the University to 62 (sixty two) years from 60 (sixty) years. It appears that the petitioner was in service when the said amendment in the service statute was made. Accordingly, the said amended provision is applicable to the service of the petitioner. It further appears that the respondent No. 2, UGC, vide memo dated 20-12-2016 sought for a decision to the respondent No.1, Ministry of Education as to whether the amended provision of the said service statute of the University should be applicable to the service of the officers and employees of the University including the petitioner; in reply to the said memo dated 20-12-2016 the respondent No.1, Ministry of Education vide memo dated 8-2-2017 opined that the Teachers of the University who went on retirement before the said Act, 2012 came into force on 10-7-2014 would not get service benefit in accordance with the said Act, 2012.
15. Therefore, we find substance in the submissions of the learned Advocate for the petitioner that the opinion of the Ministry of Education is not binding upon the University Authority as well as not applicable to the service of the petitioner.
16. It further appears that the new pay scale of 2015 came into force on 1-7-2015 and the petitioner went on PRL on 31-7-2015 and, as such, he is entitled to his service benefits in accordance with the new pay scale of 2015.
17. In such facts and circumstances, we find merit in the Rule. Accordingly the Rule and the Supplementary Rule are made absolute.
The University Authority is hereby directed to pay the PRL and service benefits to the petitioner according to the latest scale of pay, 2015 within 60 (sixty) days from the date of receipt of a copy of this judgment.
(Special Original Jurisdiction)
Gobinda Chandra Tagore J
Mohammad Ullah J
Dr Md Zahed Uddin……Petitioner
vs
Government of Bangladesh represented by the Secretary, Ministry of Education,
Bangladesh Secretariat, Dhaka-1000 and 3 (three) others……… Respondents.
Judgment July 24th, 2019
Constitution of Bangladesh, 1972
Article 102(2)
The opinion of the Ministry of Education is not binding upon the university authority as well as not applicable to the service of the petitioner.
Admittedly, the petitioner as the Additional Chief Medical Officer of the University attained the age of 60 (sixty) years on 31-7-2013. In the meantime, the Syndicate of the University at its 178th meeting amended the statute enhancing the age of the officers and employees of the University to 62 (sixty two) years from 60 (sixty) years. It appears that the petitioner was in service when the amendment in the statute was made. Accordingly, the amended provision is applicable to the service of the petitioner. It further appears that the UGC, vide memo dated 20-12-2016 sought for a decision to the Ministry of Education as to whether the amended provision of the statute of the University should be applicable to the service of the officers and employees of the University including the petitioner; in reply to the memo dated 20-12-2016 the Ministry of Education vide memo dated 8-2-2017 opined that the Teachers of the University who went on retirement before the Act, 2012 came into force on 10-7-2014 would not get service benefit in accordance with the Act, 2012…….(15 & 14)
Shahjalal University of Science and Technology Act (XV of 1987)
Sections 16 and 39
The university is governed by Act, 1987. In the Act, there was no provision relating to age of retirement of the staffs and employees of the university; but Section 39 of the Act, grants power to the university to make, amend, and cancel the service statute. The syndicate at its 178th meeting enhanced the age of retirement of the employees of the university to 62 (sixty two) years from 60 (sixty) years and accordingly while the amendment in the statute was made, the petitioner was in service………………………………………… (3 & 4)
Rimi Nahreen, Advocate-For the Petitioner
AF Hasan Arif, Advocate-For the Respondent No. 2.
Md Mojibur Rahman, Advocate-For the Respondent Nos. 3 & 4
Judgment
Mohammad Ullah J : On an application under Article 102 of the Constitution of the People’s Republic of Bangladesh, this Court issued the Rule Nisi in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Memo No. BiMoC/Budget-14/2016/9444 dated 20-12-2016 issued by the respondent No. 2 restraining the petitioner from getting his full retirement benefits as per the decision dated 13-4-2013 of the 178th meeting of Syndicate of Shahjalal University of Science and Technology (Annexure-F) should not be declared to have been issued without lawful authority and is of no legal effect and as to why the Decision No. 205.15 of 205th meeting of the Syndicate of Shahjalal University of Science and Technology approving commutation of pension benefits of the petitioner should not be cancelled and/or pass such other or further order or orders as to this Court may seem fit and proper.”
2. Subsequently upon an application, a Supplementary Rule was also issued in the following terms:
“Let a supplementary Rule Nisi be issued calling upon the respondents to show cause as to why letter No. 37.00.0000.080.99.07.16/67 dated 8-2-2017, issued by the Secondary and. Higher Education Division, Ministry of Education, respondent No.1 with reference to Memo No. wegK/ev‡RU 14/2016/944 dated 20-12-2016 issued by the respondent No.2 as contained in Annexure-F shall not be declared to have been issued without lawful authority and is of no legal effect and also not applicable to the service of the petitioner and/or why such other or further order or orders as to this Court may seem fit and proper, shall not be passed.”
3. The relevant facts necessary for disposal of the Rule, as stated in the Writ Petition, are that the petitioner Dr. Md Zahed Uddin was appointed on 4-9-2000 as the Permanent Medical Officer of the Medical Center of Shahjalal University of Science and Technology, Sylhet (the University) and subsequently, he was promoted to the post of Deputy Chief Medical Officer on 28-1-2007. He was again promoted to the post of Additional Chief Medical Officer on 4-12-2014 and the University approved his promotion as Additional Chief Medical Officer on 15-12-2014. The University is Governed by Shahjalal University of Science and Technology Act, 1987 (the Act, 1987). In the said Act, 1987, there was no provision relating to age of retirement of the staffs and employees of the University; but Section 39 of the Act, 1987 grants power to the University to make, amend, and cancel the service statute. While Section 39 (Jha) and 16 of the Act, 1987 grant the Syndicate the authority to make a service statute for employees’ pension, insurance, gratuity etc. Accordingly, a service statute relating to the employees’ pension/ gratuity was prepared and presented to the Syndicate of the University and the Syndicate at its meeting approved the said service statute. Clause 19 of the service statute provides that all the employees of the University shall retire at the end of the sessions in which they reached at the age of 60 (sixty) years. The petitioner reached at the age of 60 (sixty) years on 31-7-2013.
4. In the meantime, the Syndicate at its 178th meeting held on 13-4-2013 enhanced the age of retirement of the employees of the University to 62 (sixty two) years from 60 (sixty) years and accordingly while the said amendment in the service statute was made, the petitioner was in service. The petitioner attained the age of 62 (sixty two) years on 31-7-2015 and from that date he went on Post Retirement Leave (PRL) and remained therein till 30-7-2016. The respondent No.2, University Grant Commission (UGC) by a memo dated 20-12-2016 sought for a decision to the respondent No. 1, Ministry of Education, as to whether the employees of the University would retire at the age of 62 (sixty two) years as per the decision of the Syndicate adopted at its 178th meeting. Then the respondent No.1, Ministry of Education by a memo dated 8-2-2017 informed to the Chairman, UGC that the Teachers of the University who attained the age of 60 (sixty) years before 10-7-2012, when the cvewjK wek¦we`¨vjq wkÿK (Aemi MÖnY) (we‡kl weavb) AvBb, 2012 (the Act, 2012) came into force, the Act, 2012 would not be applicable to their service. Accordingly, the University Authority with reference to the said memo dated 20-12-2016, issued by the respondent No.2, and memo dated 8-2-2017, issued by the respondent No. 1, refused to grant the pension and retirement benefits to the petitioner up to the age of 62 (sixty two) years. Thereafter, the petitioner sent a notice demanding justice upon the respondents on 13-8-2017 praying for his full retirement benefit in accordance with the amended provision of the service statute taken for the staffs and employees of the University, but the respondents did not take any steps to provide such pension and service benefits and, as such, having no other equal and efficacious remedy provided by law, the petitioner moved this Court and obtained the Rule and the Supplementary Rule as stated above.
5. None of the respondents filed the affidavit-in-opposition controverting the statements made in the writ petition.
6. However, the learned Advocate for the respondents Nos. 2-4 was allowed to make their submissions only on law points.
7. Ms Rimi Nahreen, learned Advocate appearing for the petitioner submits that the amended provision of the service statute are binding upon the University and, as such, the University Authorities are required by law to pay the petitioner’s pension and other retirement benefits as per said amended provision of the service statute and thus the impugned refusal of the University to pay the petitioner’s retirement and service benefits is liable to be declared to have been done without lawful authority.
8. The learned Advocate submits further that since the petitioner was entitled to serve the University up to the age of 62 (sixty two) years, the latest scale of pay of 2015 is applicable to the service of the petitioner and, as such, he is entitled to service benefits under the new pay scale of 2015 with effect from 1-7-2015.
9. The learned Advocate next submits that the impugned letter dated 8-2-2017 issued by the respondent No.1, Ministry of Education being related with the terms and conditions of service of the teachers only and not to the staffs and employees of the University, the same is not applicable to the petitioner’s service and, as such, said decision is not binding upon by the petitioner as well as the University and therefore the impugned refusal of the University to pay the petitioner’s retirement and pension benefits with reference to those memos dated 20.12.2016 and 8-2-2017 is liable to be declared to have been done without lawful authority and is of no legal effect.
10. Mr AF Hasan Arif, learned Advocate for the respondent No. 2, UGC, submitted that the UGC only sought for a decision to the respondent No. 1 as to whether the teachers, officers and employees of the University would get their service benefits as per the decision of the Syndicate adopted at its 178th meeting and therefore the petitioner cannot have any grievance against the UGC and accordingly, the Rule so far as it relates to the respondent No. 2, UGC, having no cause of action is liable to be discharged.
11. Mr AF Hasan Arif, learned Advocate for the respondent No. 2 submitted that he has already expressed his unwillingness to conduct any case of the UGC and, as such, UGC may be granted some time. Since we have already heard Mr AF Hasan Arif before expressing his unwillingness to conduct the case, we do not find any necessity for adjourning the pronouncement of the judgment.
12. Mr Md Mojibur Rahman, learned Advocate for the respondents No. 3 and 4, the University, submits that the Syndicate rightly enhanced the age of the employees of the University to 62 (sixty two) years at its 178th meeting held on 13-4-2013 and, as such, the University cannot go beyond its decision but they could not pay the petitioner’s service benefits due to the said two memos dated 20-12-2016 issued by the respondent No. 2 and dated 8-2-2017 issued by the respondent No.1 and in such facts and circumstances if the Rule is made absolute they would have no objection.
13. We have perused the application and considered the submissions of the learned Advocates for both the parties.
14. Admittedly, the petitioner as the Additional Chief Medical Officer of the University attained the age of 60 (sixty) years on 31-7-2013. In the meantime, the Syndicate of the University at its 178th meeting held on 13-4-2013 amended the service statute enhancing the age of the officers and employees of the University to 62 (sixty two) years from 60 (sixty) years. It appears that the petitioner was in service when the said amendment in the service statute was made. Accordingly, the said amended provision is applicable to the service of the petitioner. It further appears that the respondent No. 2, UGC, vide memo dated 20-12-2016 sought for a decision to the respondent No.1, Ministry of Education as to whether the amended provision of the said service statute of the University should be applicable to the service of the officers and employees of the University including the petitioner; in reply to the said memo dated 20-12-2016 the respondent No.1, Ministry of Education vide memo dated 8-2-2017 opined that the Teachers of the University who went on retirement before the said Act, 2012 came into force on 10-7-2014 would not get service benefit in accordance with the said Act, 2012.
15. Therefore, we find substance in the submissions of the learned Advocate for the petitioner that the opinion of the Ministry of Education is not binding upon the University Authority as well as not applicable to the service of the petitioner.
16. It further appears that the new pay scale of 2015 came into force on 1-7-2015 and the petitioner went on PRL on 31-7-2015 and, as such, he is entitled to his service benefits in accordance with the new pay scale of 2015.
17. In such facts and circumstances, we find merit in the Rule. Accordingly the Rule and the Supplementary Rule are made absolute.
The University Authority is hereby directed to pay the PRL and service benefits to the petitioner according to the latest scale of pay, 2015 within 60 (sixty) days from the date of receipt of a copy of this judgment.
