(Special Original Jurisdiction)
Tariq-ul-Hakim J
Abu Taher Md Saifur
Rahman J
Judgment
July 8th, 2013
Shahnaz Parveen and ………others Petitioners
vs
Bangladesh, represented by the Secretary, Ministry of Health and
Family Welfare Dhaka and others
…………. Respondents *
Regularisation and Seniority Fixation of Posts from Development Project to Revenue Budget, 2005
Rule 6
Judgment July 8th, 2013
An employee transferred from the development project to the revenue set-up to enjoy salary, leave, pension and other service benefits from the date of his entry/joining the development project. ….. (20)
AKM Fazlul Hoque, Advocate-For the Petitioners.
Kazi Zinat Hoque, DAG-For the Respondent No.1.
Judgment
Tariq-ul-Hakim J: Rule Nisi has been issued calling upon the respondents to show cause as to why the impugned Memo dated 24-3-2008 (Annexure D) issued by the respondent No. 4 denying time scale and selection grade to persons in the revenl,le post who were transferred from the development project without counting their service period in the development project should not be declared to be without lawful authority, ultravires of Rule 6 of the Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ôZv wba©vib wewagvjv, 2005 and of no legal effect and why the respondents should not be directed to give time scale, selection grade, seniority and related service benefits to the petitioners and count their service period in the development project and/or pass such other or further order or outers as to this Court may seem fit and proper.
2. At the time of hearing at the outset the learned Advocate for the petitioners submits that he does not wish to press the Rule regarding the seniority of the petitioners.
3. This Rule has been issued at the instance of as many as 61 petitioners who are serving in a development project relating to Tuberculosis and Leprosy Control, Micro Bacterial Diseases Control, Department of Health of the Government of Bangladesh. Their posts were subsequently transferred to the revenue budget by order of the Ministry of Health and Family Welfare vide its Memo No. Proba-l/Rajaswa-3/2006/484 dated 11-6-2006. Thereafter their posts were regularized temporarily by office order of the Director General, Directorate of Health Services, Department of Health, Mohakha1i, Dhaka vide Memo No. Sha: Adhi:/Prosha-4/TB Leprosy/ Rajeswa/ 2002/ 4714 dated 27-1-2008 on condition that their continuation of services will be reserved from their joining date in the development project and their seniority will be counted as per Rule 4 of the SRO No. 182-Ain/2005/ShaMa/Bidhi-1/S-9/200 dated 20-6-2005 issued by the Ministry of Establishment Dbœqb cÖKí nB‡Z ivR¯^ ev‡R‡U ¯’vbvšÍwiZ c‡`i c`avix‡`i wbqwgZKiY I †R¨ôZv wba©vib wewagvjv (2005) (hereinafter referred to as the 2005 Rules).
Thereafter their jobs were made permanent from 1-6-2009 by an order vide Memo No. Shapakom/Proba-1/stayee/Rajeswa-01/2009/205/1 (24) dated 7-10-2009 issued by the Deputy Secretary, Ministry of Health and Family Welfare.
4. Thereafter the petitioners prayed for fixing their salary at a higher scale (with time scale) taking into account of their continuity of services in the development project as per Rule 6 of the 2005 Rules. The Deputy Chief Accounts Officer, Ministry of Health and Family Welfare however informed the petitioners’ higher authority that in view of Memo No. AoMo/Abi(Basta-4)/Bibidh 20 (U. Scale)/07/47 dated 24-3-2008 issued by the Ministry of Finance there is no scope of giving time scale and selection grade to the revenue post holders transferred in the development project for the period they were in the development project (Annexure D).
5 .. Thereafter the petitioners came to know that the Ministry of Expatriates Welfare and Overseas Employees pursuant to a judgment and order of the High Court Division in Writ Petition No. 6591 of 2004 and opinion of the Ministry of Law, Justice and Parliamentary Affairs, Government of Bangladesh Officers and Employees (whose jobs were in the development project) were given time scale, selection grade, seniority and other service benefits by counting their service period from their joining date in the development project. Thereafter the petitioners made several representations to the higher authority for reconsidering their prayer for giving salary, time scale and other service benefits from the period of their joining in the development propel but they received no satisfactory response.
6. Being aggrieved, the petitioners have come to this Court and obtained the present Rule.
7. The Rule is being contested by the respondent No. 1 by filing Affidavit-in Opposition where it has been stated that the policy of the Government to grant seniority and other service benefits to its employees is from the date of joining the revenue set up and not prior to that. Since the petitioners were allowed to get seniority and service benefits from the date of their joining the revenue set up, it is absurd to grant the same prior to that.
8. Mr AKM Fazlul Hoque, the learned Advocate for the petitioners has drawn our attention to the 2005 Rules where it has been categorically stated in Rule 6 that a regularized employees’ salary, leave, pension and other related benefits shall be determined by taking into account his period of service in the development project and, as such, the impugned Memo dated 24-3-2008 is ultra vires of Rule 6 of the 2005 Rules and is liable to be declared illegal and issued without lawful authority and of no legal effect . The learned Advocate submits that since the officers and employees of the Ministry of Expatriate Welfare and Overseas Employees who came from the development project were given time scale, seniority and other service benefits by counting their service period in the development project, the petitioners should also be given service benefits and time scale etc. by taking into account their service period in the development project as they are in the same footing. The learned Advocate further submits that the Ministry of Law Justice and Parliamentary Affairs, have given their opinion in the case of officers and employees of the Ministry of Expatriate Welfare and Overseas Employees regularized from the development project to the revenue set up. That Rule 6 of the 2005 Rule entitled such officers to get salary, time scale, seniority and other benefits by counting their service period in the development project and, as such, he submits that the petitioners are entitled to get time scale and other service benefits and the impugned order is liable to be declared illegal, arbitrary and without lawful authority. The learned Advocate has drawn our attention to an unreported judgment in Writ Petition No. 1186 of 2004 where the High Court Division has held that the petitioners’ transfer from the development project to the revenue set up are entitled to time scale, seniority and other service benefits by counting their period of service in the development project by virtue of Rule 6 of the 2005 Rules.
9. As against this, Mr Kazi Zinat Hoque, the learned Deputy Attorney-General submits that seniority, time scale and service benefits etc. of the petitioners should come from the date of their transfer to the revenue set up. To allow them seniority and other service benefits from the date of their joining in the development project will create chaos in the revenue set up. The learned Deputy Attorney-General has drawn our attention to the language of Rule 5 of the 2005 Rules which clearly states that the seniority of the employee will take from the date of his regularization in the revenue set up and not prior to that. To do otherwise she submits that persons who are senior to the petitioners by virtue of joining their services earlier will become junior to the petitioners even though the petitioners joined the revenue set up much later. This would create chaotic situation in the revenue station which cannot be the intention of the Rules.
10. We have considered the submissions of the learned Advocates.
11. It appears that the petitioners were working in a development project from 1993 and were transferred to the revenue set up in 2009. The only point for adjudication in the instant Rule is that whether the petitioners would get seniority from the date of their joining in the development project although their services were transferred to the revenue set up in 2009 or whether their seniority is to be determined from the date of their transfer to the said revenue set up in 2009.
(To be continued)
12. The second point is whether the petitioners are entitled to the service benefits salary, time scale etc. from the date of their joining in the revenue budget or from the date of joining in the development project.
13. Rule 5 of the 2005 Rules states as follows:-
Ó5| †R¨ôZv wba©viY-
(1) GB wewagvjv Aaxb wbqwgZK…Z †Kvb Kg©KZ©v ev Kg©Pvixi †R¨ôZv wba©vi‡Yi †ÿ‡Î Zvnvi PvKzix wbqwgZKi‡Yi ZvwiL nB‡Z MYbv Kiv nB‡e|
(2) †Kvb Dbœqb cÖK‡í GKB Zvwi‡L wb‡qvMcÖvß GKvwaK Kg©KZ©v ev Kg©Pvixi †R¨ôZv wbgœiƒc wba©vwiZ nB‡e, h_vt-
(K) Dbœqb cÖK‡í wb‡qv‡Mi mgq mswkøó KZ…©cÿ KZ…©K cÖ¯’ZK…Z †gav ZvwjKv ev cÖ`Ë b¤^‡ii †MÖwWs, hw` _v‡K, Gi wfwˇZ ;
(L) `dv (K) G DwjøwLZ ZvwjKv ev cÖ`Ë b¤^‡ii †MÖwWs bv _vwK‡j †mB‡ÿ‡Î b~¨bZg wkÿvMZ †hvM¨Zv AR©‡bi erm‡ii wfwˇZ Ges D³ ermi GK ermi nB‡j ‡mB †ÿ‡Î eq‡mi wfwˇZ|
(3) †Kvb Dbœqb cÖK‡íi c~‡e© wb‡qvMcÖvß †Kvb Kg©KZ©v ev Kg©Pvix cÖ‡qvRbxq KvMRc‡Îi Afv‡e, c`vwaKvixi ÎæwUi Kvi‡Y bq, GKB c‡` c‡i wb‡qvMcÖvß Kg©KZ©v ev Kg©Pvixi c~‡e© ev GKB m‡½ wbqwgZ bv nBqv cieZx© mg‡q wbqwgZ nB‡e †mB‡ÿ‡Î c‡i wbqwgZ nIqv m‡Ë¡I c~‡e© wbqwgZK…Z Kg©KZ©v ev Kg©Pvixi Dci Zvnvi †R¨ôZv wba©vwiZ nB‡e|
(4) GKvwaK Dbœqb cÖKí nB‡Z GKB c‡` `yB ev Z‡ZvwaK Kg©KZ©v ev Kg©Pvix‡K wbqwgZ Kiv nB‡j †mB‡ÿ‡Î Dbœqb cÖK‡í †hvM`v‡bi Zvwi‡Li wfwˇZ †R¨ôZv wba©vwiZ nB‡e|
(5) GKvwaK Dbœqb cÖKí nB‡Z GKB c‡` `yB ev Z‡ZvwaK Kg©KZ©v ev Kg©Pvix‡K wbqwgZ Kiv nB‡j Ges Zvnv‡`i †hvM`v‡bi ZvwiL GKB nB‡j †mB‡ÿ‡Î eqt‡R¨ôZv wba©vwiZ nB‡e|
(6) wbqwgZfv‡e wb‡qvMcÖvß Kg©KZ©v ev Kg©Pvixi wb‡qv‡Mi ZvwiL Ges wbqwgZK…Z Kg©KZ©v ev Kg©Pvixi wbqwgZKi‡Yi ZvwiL GKB nB‡j †mB‡ÿ‡Î wbqwgZfv‡e wb‡qvMcÖvß Kg©KZ©v ev Kg©PvixMY wbqwgZK…Z Kg©KZ©v ev Kg©PvixM‡Yi Dci †R¨ôZv cvB‡eb|Ó
Rule 5( 1) states quite clearly that seniority an employee will be from the date of his
service is regularized by the authority. In the instant case it appears that the petitioners’ service was regularized on 1-6-2009 as apparent from the Memo No. Shapakom/Proba-1 /stayee/Rajeswa-01/2009/205/1(24) dated 7-10-2009 issued by the Deputy Secretary, Ministry of Health and Family Welfare (Annexure C). In such view of the matter, petitioners’ seniority will be determined from the said date.
15. The next question from which date the petitioners’ salary, leave and other service benefits is to be determined.
16. Rule 6 of the aforesaid 2005 Rules states as follows:
Ó6| Dbœqb cÖK‡íi PvKzixKvj MYbv- wbqwgZK…Z †Kvb Kg©KZ©v ev Kg©Pvixi Dbœqb cÖK‡í PvKzixKvj Zvnvi †eZb, QzwU, †cbkb I Avbylw½K myweavw` wba©vi‡Yi †ÿ‡Î MYbv Kiv nB‡e|
17. The language of the Rule 6 is very clear.
An employee’s service period is to he determined by taking into account his period of employment in the development project. His salary, leave, pension and other related benefits are to be determined by taking into account his service period in the development project.
18. In the instant case it appears that the petitioners joined the development project in 1993.
19. In an unreported judgment in Civil Petition for Leave to Appeal No. 308 of 2013 the Appellate Division of the Supreme Court has held as follows:
“In respect of counting the period of service, rule 6 provides that the period in service in the development projects will be counted for determining regularized employees and officers in respect of their salary, leave, pension and other benefits. The expression ÕAvbylw½K myweavw`Õ used in this Rule includes all benefits available to an officer or employee and there is no scope to construe this expression in a restrictive manner. This expression includes salary, leave, pension and other incidental or associated benefits. These Rules have been framed for the benefit of the officers and employees who have been absorbed in the revenue set up from the development projects. Therefore, while interpreting the words used in the Rules beneficial construction should be given. Nevertheless, according to the interpretation of statutes, even where the usual meaning of the words falls short of the object of the legislature,. a mere extended meaning may be attributed to them, if they are fairly susceptible of it.”
20. From the aforesaid, it appears that the Appellate Division has clearly affirmed that Rule 6 of 2005 Rules clearly entitled an employee transferred from the development project to the revenue set up to enjoy salary, leave, pension and other service benefits from the date of his entry/joining the development project.
In such view of the matter, we find merit in this Rule. Accordingly the Rule is made absolute in part. The impugned Memo dated 24-3-2008 (Annexure D) issued by the respondent No. 4 debarring time scale, selection grade is declared to have been issued illegal and ultra vires of Rule 6 of the Rules, 2005 and the respondents are directed to allow time scale, selection grade and related service benefits to the petitioners counting their service period in the development project.
There will be no order as to costs.
