Appellate Division :
(Civil)
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin Chowdhury J
Judgment
May 4th, 2014.
Director General, Bangladesh Standards and Testing Institution.
……Petitioner
vs
Matiur Rahman
and others
……. Respondents
Constitution of Bangladesh, 1972
Articles 102(2) and 103
Service Matter-Observations -In the leave petition though it has been stated in a general way ‘that the· writ-petitioner was appointed in a temporary post under a development project under CTL on purely temporary basis and had not been regularized”, the memos relied upon by the High Court Division in ‘coming to the finding that the petitioner and 11 others were transferred to the revenue budget from the development budget with effect from 1-7-1989, have not been specifically controverted. The writ respondents took similar stand before the High Court Division, but it rejected their contention with reference to the memos. In the leave petition, no attempt has been made to attack the finding of the High Court Division in that respect. . ….. (15)
Sheikh Awsafur Rahman Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
Sheikh Muhammad Murshed, Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For the Respondents.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by Writ Respondent No.3, the Director General, Bangladesh Standards and Testing Institution (BSTI) calling in question the judgment and order dated the 17th day of May, 2010 passed by the High Court Division in Writ Petition No. 2710 of 2010 disposing the Rule Nisi with “findings and observations” made in the judgment.
2. Respondent No.1 herein as petitioner (hereinafter referred to as the writ-petitioner) filed the writ petition for ‘issuing a Rule Nisi calling upon the writ-respondents to show cause as to why a direction should not be given upon them to consider the case of his promotion in the post of Deputy Director (Textile), Physical Testing Wing, from the present post of Assistant Director (Textile), Physical Testing Wing, according to the common seniority list published in 1998 as per the conditions of service under the schedule of the BSTI Service Regulation, (sic, it would be Rules and hereinafter shall be referred to as the Rules), 1989 “and not to supersede him in this regard.” Accordingly, the Rule Nisi was issued.
3. The case of writ-petitioner as made out in the writ petition is that he is an Assistant Director (Textile), Physical Testing Wing of BSTI. BSTI was created by operation of Bangladesh Standards and Testing Institution Ordinance No. XXXVII of 1985 (the Ordinance) upon abolishing Central Testing Laboratories (CTL) and dissolving Bangladesh Standards Institution (BDSI) for standardization, testing, metrology, quality control, grading, making of goods and overall administration and management of the institution. The functions, nature of jobs and qualifications of the employees/ officers of CTL and BDSI were different. Initially, BSTI was constituted with two wings, but considering the difference of the nature of jobs to be performed in different sectors, the Government with the approval of the Ministry of Finance by Memo dated 1-6-1994 divided the functions of BSTI in six wings, namely: (1) Administration, (2) Standard Wing, (3) Certificate/ Marks Wing, (4) Metrology Wing, (5) Physical Testing Wing and (6) Chemical Testing Wing. Among others, there are provisions under different sections of the Ordinance relating to the terms and conditions of service of all the employees / officers of BSTI.
4. In 1985, CTL authority published an advertisement in the daily newspaper seeking applications from different individuals for different posts. On 14-4-1985, the writ-petitioner applied for the post of Examiner (Textile), Physical Testing Wing. He was selected for the post and on 21-5-1985, CTL authority issued an offer letter. The writ-petitioner having accepted the offer letter joined the service on 1-6-1985 and on 10-6-1985, CTL authority issued an appointment letter to him. The writ-petitioner underwent probationary period for 1 (one) year as per the appointment letter dated 10-6-1985 issued by writ-respondent No.2. After successful completion of the probationary period, the writ-petitioner’s appointment became regular. On 30-5-1989, the writ-petitioner was promoted to the post of Senior Examiner (Textile), Physical Testing Wing. Lastly on 12-1-1997, the writ-petitioner was promoted to the post of Assistant Director (Textile), Physical Testing Wing. On 25-10-1998, BSTI authority published a common seniority list of all its regular officers and employees as required under Section 36(2) of the Ordinance. In the common seniority list, the writ-petitioner’s name appe’ared at serial No. 51 while, the name of one Md Abdul Mannan at Serial No. 52 and one Shamim Ara Begum at serial No.68. But on 11-3-2009, Md Abdul Mann who is 2 (two) years junior to the writ-petitioner, was promoted to the post of Deputy Director (Electricity), Physical Testing Wing, by superseding the writ-petitioner. On 19-5-2009, BSTI authority gave the overall charge of Director (Physical) to the Deputy Director (Textile), Physical Testing Wing. The writ-petitioner by an application dated 24-5-2009 addressed to the Director General, BSTI prayed for his promotion to the vacant post of Deputy Director (Textile), Physical Testing Wing. But he did not receive any response thereto. On 7-3-2010, the selection Board of BSTI held its meeting wherein it was decided to give promotion to Shamim Ara Begum, who is more than 4(four) years junior to the writ-petitioner, again by superseding him. In the circumstances, the writ-petitioner finding no other equally efficacious remedy provided by law filed the writ petition and obtained the Rule Nisi.
5. Writ-Respondent Nos.2 and 3 and added respondent No.6 contested the Rule by filing affidavit-in-opposition separately,’ but contending more or less same facts and raising similar question of law.
6. Writ-Respondent Nos. 2 and 3 in their affidavit-in-opposition contended, inter-alia, that the writ-petitioner was appointed as Examiner under a development project, namely; “Modernization’ and Development of Central Testing Laboratory” purely on temporary basis as apparent from the appointment letter. There are some procedures for transferring any service from development budget to revenue budget, but in the instant case, no such procedure was followed and the service of the writ-petitioner had not been regularized. At the time of promotion of the writ-petitioner to the post of senior examiner and Assistant Director, the service records of the writ-petitioner were not properly and correctly produced and discussed in the meeting of the previous selection boards. The question of the seniority list of 1998 was discussed in Writ Petition No. 470 of 2005. A Division Bench of the High Court Division by the judgment and order dated 3-1-2006 discharged the Rule Nisi issued therein with finding that the writ petition was pre-mature as it was a draft list and no final list was prepared. The judgment and order was upheld by the Appellate Division in Civil Petition for Leave to Appeal No.613 of 2006. The promotions of the officers and the employees of BSTI are made as per the provisions of the recruitment schedule to the Rules. Under the Rules, the writ-petitioner is not entitled to be promoted to the post of Deputy Director (Textile), Physical Testing Wing. The promotion case of the writ-petitioner was placed before the Selection Board and the matter was thoroughly discussed on the basis of his service record. The Selection Board found that the ser.vice of the writ-petitioner was not regularized. So, he was not entitled to get the relief prayed for and the Rule Nisi was liable to be discharged.
7. Added respondent No.6 contended that the service of the. writ-petitioner had not , been regularized in the post of Examiner under the revenue budget; on the other hand, she was appointed in 1989 as an Examiner of BSTI under the revenue budget on regular basis and in that view of the matter, the writ-petitioner could not claim his seniority over her.
8. The writ-petitioner filed an affidavit-in-reply to the affidavit-in-opposition filed by added respondent No.6 asserting that the statements made in the affidavit-in-opposition that his service was not regularized under the revenue budget, was absolutely false and incorrect. With the approval of the President of the Republic by Memo No. wkí/¯^m-5/weGmwUAvB-4/87/316/1/1(4) dated 29-3-1989 (annexure-F to the affidavit-in-reply), the services of the writ-petitioner and 11 others were transferred to the revenue budget with effect from 1-7-1987. Then by Memo Nos. weGmwUAvB/2(4)/72-LÛ-1/3117(2) dated 12-4-1989 and weGmwUAvB/2(4)/72-LÛ-1/3188(2) dated 10-1-1996, the fact of transfer of the writpetitioner to the revenue budget and regularization with effect from 1-7-1987 was further confirmed.
9. A Division Bench of the High Court Division on hearing the writ petition by the impugned judgment and order, disposed of the Rule Nisi with the findings and observations made therein.
10. Mr Sheikh Awsafur Rahman, learned Advocate, appearing for the petitioner, submits that the High Court Division was wrong in giving finding that the writ-petitioner was illegally superseded inasmuch as he was, in fact, not regularized in his service in the revenue budget and therefore, he could not claim promotion.
In the context, the High Court Division failed to consider rules 7(2), 14(2) and 14(3) of the Rules in its proper perspective which contemplate that the promotion of the employees is to be considered by the authority with their full satisfaction and one cannot claim promotion as a matter of right. He submits that the High Court Division acted illegally in giving direction upon BSTI to give promotion to the writ-petitioner in the post of Deputy Director, BSTI inasmuch as it did not compare the personal file performance, merit and other attending circumstances of both the writ-petitioner and the person who has been promoted.
11. Mr Sheikh Muhammad Murshed, learned Advocate, entering caveat, on behalf of the writ-petitioner-respondent, on the other hand, supported the impugned judgment and order.
12. From the impugned judgment and order, it appears that the High Court Division gave clear finding that the writ-petitioner was regularized in his service on and from 1-7-1987, but the respondents perversely and arbitrarily found at least twice that the service of the writ-petitioner was not regularized and thus the respondents in colourable exercise of their power illegally refused to recognize his status and seniority, earned in course of his employment in the service.
(To be continued)
In coining to the said finding, the High Court Division relied upon Memo No. wkí/¯^m-5/weGmwUAvB-4/87/316/1/1(4) dated 29-31989 and also Memo Nos. weGmwUAvB/2(4)/72-LÛ-1/3117(2) dated 12-4-1989 weGmwUAvB/2(4)/72-LÛ-1/3188(2) dated 10-1-1996. The High Court Division observed that the contention of the contesting respondents that the service of the writ-petitioner was not regularized, had no factual and legal basis, any failure/refusal to recognize the seniority with effect from the date of appointment or regularization of service amounts to deprivation and denial of opportunity in the matter of employment and thus, violative of the fundamental rights guaranteed under Article 29 of the Constitution. The High Court Division further found that “the service and promotion of the petitioner were not considered” in accordance with the provisions of sections 36(1)(c) and 36(2) of the Ordinance respectively and thereby his fundamental rights to equal protection of law and to be treated in accordance with law as enshrined in Articles 27 and 31 of the Constitution have been infringed. The High Court Division further observed that the term “all officers and other employees” as used in clause (c) of section 36(1) of the Ordinance does not make any difference or divisions as to permanent or temporary officers or employees or officers and employees under any development project of the abolished CTL and thus the same also includes both temporary officers and employees or officers and employees under any development project of the abolished CTL. Moreover, there is no controversy that along with the services of other officers and employees under the development project of the abolished CTL, the service of the writ-petitioner was also transferred to BSTI. The High Court Division further held that section 36(2) of the Ordinance has stipulated that for the purpose of promotion, the common seniority list prepared by the Institution shall be considered. The High Court Division further held that as per the principle of :’Expressio unius est exclusio alterious” only seniority being exclusively mentioned in section 36(2) of the Ordinance, the same would exclude suitability or merit which is not mentioned therein for consideration for promotion of all the officers and other employees of BSTI; in respect of promotion, section 36(2) of the Ordinance being the substantive law, the same shall prevail over any provision of the Rules contrary thereto or overlapping thereof. Rule 7(2) of the Rules read with rule 14(2) thereof at best stipulates that along with seniority, one has to have other qualifications for promotion, otherwise he/she would be disqualified for promotion. The High Court Division further observed:
“It is well settled, even where the promotion post is to be filled up on seniority-cum-merit/ suitability basis, the guarantees of Articles 27 and 29(1) of the Constitution require that an employee fulfilling the qualification of the promotion post should be considered for promotion. Thus if a junior employee is promoted without considering the case of the senior employee, who fulfils the qualification of the promotion post, the guarantee of equality of opportunity in the service of the Republic or in that of a local authority is violated.”
13. The High Court Division came to the further finding that in the present case, without
properly examining the writ-petitioner’s service records, the promoting authority upon wrong and arbitrary inference that his service was not regularized, did not consider his claim for promotion, while the contesting respondents including BSTI even did not allege that the writ-petitioner was otherwise disqualified for consideration for promotion. The High Court Division concluded that the seniority of the writ-petitioner is to be counted from the date of regularization of his service, i.e. 1-7-1989 and he was illegally superseded in giving promotion to his juniors, he is entitled to be promoted to the post of Deputy Director (Textile) from his present post of Assistant Director (Textile), Physical testing Wing, BSTI in accordance with the Ordinance and the Rules made thereunder and he is also entitled to seniority over his juniors who have already been promoted to the posts of Deputy Directors by superseding him.
14. Mr Sheikh Awsafur Rahman failed to show with reference to the materials on record that the observations made and the findings given by the High Court Division as noted down hereinbefore, particularly, the fact that the service of the writ-petitioner and 11 others was transferred to the revenue budget with effect from 1-7-1987 with the approval of the President of the, Republic by Memo No. wkí/¯^m-5/weGmwUAvB-4/87/316/1/1(4) dated 29-3-1989 and this was further affirmed by Memo Nos. weGmwUAvB/2(4)/72-LÛ-1/3117(2) dated 12-4-1989 and weGmwUAvB/2(4)/72-LÛ-1/3188(2) dated 10-11996, are the result of misreading and misconstruction of those memos or any other document filed before the High Court Division as affidavit evidence non-consideration of any such affidavit evidence or other materials or on no affidavit evidence or materials.
15. We have considered the provisions of sections 36(1), 36(2) of the Ordinance, relevant rules of the Rules; we find that the High Court Division took correct view in the matter as to the right of the writ-petitioner in getting promotion to the post of Deputy Director in BSTI. The submission of Mr Awsafur Rahman that the writ-petitioner is not entitled to be promoted to the post of Deputy Director in BSTI as he was not regularized in his service, appeared to us a bit grotesque inasmuch as on the basis of an offer letter dated 21-5-1985, the writ-petitioner joined the service on 1-6-1985 as Examiner (Textile) and then he was given the formal appointment letter on 10-6-1985 and in course of time, he was promoted to the post of Senior Examiner (Textile), Physical Testing Wing and lastly, on 12-1-1997, he was promoted to the post of Assistant Director (Textile), Physical Testing Wing. Had he not been regularized in the first post of Examiner (Textile) in the revenue budget then the question of promotion to the next higher posts would not have arisen. In this regard, it is necessary to state that in the leave petition though it has been stated in a general way that the writ-petitioner was appointed in a temporary post under a development project under CTL on purely temporary basis and “he had not been regularized”, the memos relied upon by the High Court Division in coming to the finding that the petitioner and 11 others were transferred to the revenue budget from the development budget with effect from 1-7-1989, have not been specifically controverted. It may further be stated that the writ-respondents took similar stand before the High Court Division, but it rejected their contention with reference to the memos as already mentioned. In the leave petition, no attempt has been made to attack the finding of the High Court Division in that respect.
In view of the above, we find no merit in the leave petition.
Accordingly, the same is dismissed.
(Civil)
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
AHM Shamsuddin Chowdhury J
Judgment
May 4th, 2014.
Director General, Bangladesh Standards and Testing Institution.
……Petitioner
vs
Matiur Rahman
and others
……. Respondents
Constitution of Bangladesh, 1972
Articles 102(2) and 103
Service Matter-Observations -In the leave petition though it has been stated in a general way ‘that the· writ-petitioner was appointed in a temporary post under a development project under CTL on purely temporary basis and had not been regularized”, the memos relied upon by the High Court Division in ‘coming to the finding that the petitioner and 11 others were transferred to the revenue budget from the development budget with effect from 1-7-1989, have not been specifically controverted. The writ respondents took similar stand before the High Court Division, but it rejected their contention with reference to the memos. In the leave petition, no attempt has been made to attack the finding of the High Court Division in that respect. . ….. (15)
Sheikh Awsafur Rahman Advocate instructed by Sufia Khatun, Advocate-on-Record-For the Petitioner.
Sheikh Muhammad Murshed, Advocate instructed by Md Zahirul Islam, Advocate-on-Record-For the Respondents.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by Writ Respondent No.3, the Director General, Bangladesh Standards and Testing Institution (BSTI) calling in question the judgment and order dated the 17th day of May, 2010 passed by the High Court Division in Writ Petition No. 2710 of 2010 disposing the Rule Nisi with “findings and observations” made in the judgment.
2. Respondent No.1 herein as petitioner (hereinafter referred to as the writ-petitioner) filed the writ petition for ‘issuing a Rule Nisi calling upon the writ-respondents to show cause as to why a direction should not be given upon them to consider the case of his promotion in the post of Deputy Director (Textile), Physical Testing Wing, from the present post of Assistant Director (Textile), Physical Testing Wing, according to the common seniority list published in 1998 as per the conditions of service under the schedule of the BSTI Service Regulation, (sic, it would be Rules and hereinafter shall be referred to as the Rules), 1989 “and not to supersede him in this regard.” Accordingly, the Rule Nisi was issued.
3. The case of writ-petitioner as made out in the writ petition is that he is an Assistant Director (Textile), Physical Testing Wing of BSTI. BSTI was created by operation of Bangladesh Standards and Testing Institution Ordinance No. XXXVII of 1985 (the Ordinance) upon abolishing Central Testing Laboratories (CTL) and dissolving Bangladesh Standards Institution (BDSI) for standardization, testing, metrology, quality control, grading, making of goods and overall administration and management of the institution. The functions, nature of jobs and qualifications of the employees/ officers of CTL and BDSI were different. Initially, BSTI was constituted with two wings, but considering the difference of the nature of jobs to be performed in different sectors, the Government with the approval of the Ministry of Finance by Memo dated 1-6-1994 divided the functions of BSTI in six wings, namely: (1) Administration, (2) Standard Wing, (3) Certificate/ Marks Wing, (4) Metrology Wing, (5) Physical Testing Wing and (6) Chemical Testing Wing. Among others, there are provisions under different sections of the Ordinance relating to the terms and conditions of service of all the employees / officers of BSTI.
4. In 1985, CTL authority published an advertisement in the daily newspaper seeking applications from different individuals for different posts. On 14-4-1985, the writ-petitioner applied for the post of Examiner (Textile), Physical Testing Wing. He was selected for the post and on 21-5-1985, CTL authority issued an offer letter. The writ-petitioner having accepted the offer letter joined the service on 1-6-1985 and on 10-6-1985, CTL authority issued an appointment letter to him. The writ-petitioner underwent probationary period for 1 (one) year as per the appointment letter dated 10-6-1985 issued by writ-respondent No.2. After successful completion of the probationary period, the writ-petitioner’s appointment became regular. On 30-5-1989, the writ-petitioner was promoted to the post of Senior Examiner (Textile), Physical Testing Wing. Lastly on 12-1-1997, the writ-petitioner was promoted to the post of Assistant Director (Textile), Physical Testing Wing. On 25-10-1998, BSTI authority published a common seniority list of all its regular officers and employees as required under Section 36(2) of the Ordinance. In the common seniority list, the writ-petitioner’s name appe’ared at serial No. 51 while, the name of one Md Abdul Mannan at Serial No. 52 and one Shamim Ara Begum at serial No.68. But on 11-3-2009, Md Abdul Mann who is 2 (two) years junior to the writ-petitioner, was promoted to the post of Deputy Director (Electricity), Physical Testing Wing, by superseding the writ-petitioner. On 19-5-2009, BSTI authority gave the overall charge of Director (Physical) to the Deputy Director (Textile), Physical Testing Wing. The writ-petitioner by an application dated 24-5-2009 addressed to the Director General, BSTI prayed for his promotion to the vacant post of Deputy Director (Textile), Physical Testing Wing. But he did not receive any response thereto. On 7-3-2010, the selection Board of BSTI held its meeting wherein it was decided to give promotion to Shamim Ara Begum, who is more than 4(four) years junior to the writ-petitioner, again by superseding him. In the circumstances, the writ-petitioner finding no other equally efficacious remedy provided by law filed the writ petition and obtained the Rule Nisi.
5. Writ-Respondent Nos.2 and 3 and added respondent No.6 contested the Rule by filing affidavit-in-opposition separately,’ but contending more or less same facts and raising similar question of law.
6. Writ-Respondent Nos. 2 and 3 in their affidavit-in-opposition contended, inter-alia, that the writ-petitioner was appointed as Examiner under a development project, namely; “Modernization’ and Development of Central Testing Laboratory” purely on temporary basis as apparent from the appointment letter. There are some procedures for transferring any service from development budget to revenue budget, but in the instant case, no such procedure was followed and the service of the writ-petitioner had not been regularized. At the time of promotion of the writ-petitioner to the post of senior examiner and Assistant Director, the service records of the writ-petitioner were not properly and correctly produced and discussed in the meeting of the previous selection boards. The question of the seniority list of 1998 was discussed in Writ Petition No. 470 of 2005. A Division Bench of the High Court Division by the judgment and order dated 3-1-2006 discharged the Rule Nisi issued therein with finding that the writ petition was pre-mature as it was a draft list and no final list was prepared. The judgment and order was upheld by the Appellate Division in Civil Petition for Leave to Appeal No.613 of 2006. The promotions of the officers and the employees of BSTI are made as per the provisions of the recruitment schedule to the Rules. Under the Rules, the writ-petitioner is not entitled to be promoted to the post of Deputy Director (Textile), Physical Testing Wing. The promotion case of the writ-petitioner was placed before the Selection Board and the matter was thoroughly discussed on the basis of his service record. The Selection Board found that the ser.vice of the writ-petitioner was not regularized. So, he was not entitled to get the relief prayed for and the Rule Nisi was liable to be discharged.
7. Added respondent No.6 contended that the service of the. writ-petitioner had not , been regularized in the post of Examiner under the revenue budget; on the other hand, she was appointed in 1989 as an Examiner of BSTI under the revenue budget on regular basis and in that view of the matter, the writ-petitioner could not claim his seniority over her.
8. The writ-petitioner filed an affidavit-in-reply to the affidavit-in-opposition filed by added respondent No.6 asserting that the statements made in the affidavit-in-opposition that his service was not regularized under the revenue budget, was absolutely false and incorrect. With the approval of the President of the Republic by Memo No. wkí/¯^m-5/weGmwUAvB-4/87/316/1/1(4) dated 29-3-1989 (annexure-F to the affidavit-in-reply), the services of the writ-petitioner and 11 others were transferred to the revenue budget with effect from 1-7-1987. Then by Memo Nos. weGmwUAvB/2(4)/72-LÛ-1/3117(2) dated 12-4-1989 and weGmwUAvB/2(4)/72-LÛ-1/3188(2) dated 10-1-1996, the fact of transfer of the writpetitioner to the revenue budget and regularization with effect from 1-7-1987 was further confirmed.
9. A Division Bench of the High Court Division on hearing the writ petition by the impugned judgment and order, disposed of the Rule Nisi with the findings and observations made therein.
10. Mr Sheikh Awsafur Rahman, learned Advocate, appearing for the petitioner, submits that the High Court Division was wrong in giving finding that the writ-petitioner was illegally superseded inasmuch as he was, in fact, not regularized in his service in the revenue budget and therefore, he could not claim promotion.
In the context, the High Court Division failed to consider rules 7(2), 14(2) and 14(3) of the Rules in its proper perspective which contemplate that the promotion of the employees is to be considered by the authority with their full satisfaction and one cannot claim promotion as a matter of right. He submits that the High Court Division acted illegally in giving direction upon BSTI to give promotion to the writ-petitioner in the post of Deputy Director, BSTI inasmuch as it did not compare the personal file performance, merit and other attending circumstances of both the writ-petitioner and the person who has been promoted.
11. Mr Sheikh Muhammad Murshed, learned Advocate, entering caveat, on behalf of the writ-petitioner-respondent, on the other hand, supported the impugned judgment and order.
12. From the impugned judgment and order, it appears that the High Court Division gave clear finding that the writ-petitioner was regularized in his service on and from 1-7-1987, but the respondents perversely and arbitrarily found at least twice that the service of the writ-petitioner was not regularized and thus the respondents in colourable exercise of their power illegally refused to recognize his status and seniority, earned in course of his employment in the service.
(To be continued)
In coining to the said finding, the High Court Division relied upon Memo No. wkí/¯^m-5/weGmwUAvB-4/87/316/1/1(4) dated 29-31989 and also Memo Nos. weGmwUAvB/2(4)/72-LÛ-1/3117(2) dated 12-4-1989 weGmwUAvB/2(4)/72-LÛ-1/3188(2) dated 10-1-1996. The High Court Division observed that the contention of the contesting respondents that the service of the writ-petitioner was not regularized, had no factual and legal basis, any failure/refusal to recognize the seniority with effect from the date of appointment or regularization of service amounts to deprivation and denial of opportunity in the matter of employment and thus, violative of the fundamental rights guaranteed under Article 29 of the Constitution. The High Court Division further found that “the service and promotion of the petitioner were not considered” in accordance with the provisions of sections 36(1)(c) and 36(2) of the Ordinance respectively and thereby his fundamental rights to equal protection of law and to be treated in accordance with law as enshrined in Articles 27 and 31 of the Constitution have been infringed. The High Court Division further observed that the term “all officers and other employees” as used in clause (c) of section 36(1) of the Ordinance does not make any difference or divisions as to permanent or temporary officers or employees or officers and employees under any development project of the abolished CTL and thus the same also includes both temporary officers and employees or officers and employees under any development project of the abolished CTL. Moreover, there is no controversy that along with the services of other officers and employees under the development project of the abolished CTL, the service of the writ-petitioner was also transferred to BSTI. The High Court Division further held that section 36(2) of the Ordinance has stipulated that for the purpose of promotion, the common seniority list prepared by the Institution shall be considered. The High Court Division further held that as per the principle of :’Expressio unius est exclusio alterious” only seniority being exclusively mentioned in section 36(2) of the Ordinance, the same would exclude suitability or merit which is not mentioned therein for consideration for promotion of all the officers and other employees of BSTI; in respect of promotion, section 36(2) of the Ordinance being the substantive law, the same shall prevail over any provision of the Rules contrary thereto or overlapping thereof. Rule 7(2) of the Rules read with rule 14(2) thereof at best stipulates that along with seniority, one has to have other qualifications for promotion, otherwise he/she would be disqualified for promotion. The High Court Division further observed:
“It is well settled, even where the promotion post is to be filled up on seniority-cum-merit/ suitability basis, the guarantees of Articles 27 and 29(1) of the Constitution require that an employee fulfilling the qualification of the promotion post should be considered for promotion. Thus if a junior employee is promoted without considering the case of the senior employee, who fulfils the qualification of the promotion post, the guarantee of equality of opportunity in the service of the Republic or in that of a local authority is violated.”
13. The High Court Division came to the further finding that in the present case, without
properly examining the writ-petitioner’s service records, the promoting authority upon wrong and arbitrary inference that his service was not regularized, did not consider his claim for promotion, while the contesting respondents including BSTI even did not allege that the writ-petitioner was otherwise disqualified for consideration for promotion. The High Court Division concluded that the seniority of the writ-petitioner is to be counted from the date of regularization of his service, i.e. 1-7-1989 and he was illegally superseded in giving promotion to his juniors, he is entitled to be promoted to the post of Deputy Director (Textile) from his present post of Assistant Director (Textile), Physical testing Wing, BSTI in accordance with the Ordinance and the Rules made thereunder and he is also entitled to seniority over his juniors who have already been promoted to the posts of Deputy Directors by superseding him.
14. Mr Sheikh Awsafur Rahman failed to show with reference to the materials on record that the observations made and the findings given by the High Court Division as noted down hereinbefore, particularly, the fact that the service of the writ-petitioner and 11 others was transferred to the revenue budget with effect from 1-7-1987 with the approval of the President of the, Republic by Memo No. wkí/¯^m-5/weGmwUAvB-4/87/316/1/1(4) dated 29-3-1989 and this was further affirmed by Memo Nos. weGmwUAvB/2(4)/72-LÛ-1/3117(2) dated 12-4-1989 and weGmwUAvB/2(4)/72-LÛ-1/3188(2) dated 10-11996, are the result of misreading and misconstruction of those memos or any other document filed before the High Court Division as affidavit evidence non-consideration of any such affidavit evidence or other materials or on no affidavit evidence or materials.
15. We have considered the provisions of sections 36(1), 36(2) of the Ordinance, relevant rules of the Rules; we find that the High Court Division took correct view in the matter as to the right of the writ-petitioner in getting promotion to the post of Deputy Director in BSTI. The submission of Mr Awsafur Rahman that the writ-petitioner is not entitled to be promoted to the post of Deputy Director in BSTI as he was not regularized in his service, appeared to us a bit grotesque inasmuch as on the basis of an offer letter dated 21-5-1985, the writ-petitioner joined the service on 1-6-1985 as Examiner (Textile) and then he was given the formal appointment letter on 10-6-1985 and in course of time, he was promoted to the post of Senior Examiner (Textile), Physical Testing Wing and lastly, on 12-1-1997, he was promoted to the post of Assistant Director (Textile), Physical Testing Wing. Had he not been regularized in the first post of Examiner (Textile) in the revenue budget then the question of promotion to the next higher posts would not have arisen. In this regard, it is necessary to state that in the leave petition though it has been stated in a general way that the writ-petitioner was appointed in a temporary post under a development project under CTL on purely temporary basis and “he had not been regularized”, the memos relied upon by the High Court Division in coming to the finding that the petitioner and 11 others were transferred to the revenue budget from the development budget with effect from 1-7-1989, have not been specifically controverted. It may further be stated that the writ-respondents took similar stand before the High Court Division, but it rejected their contention with reference to the memos as already mentioned. In the leave petition, no attempt has been made to attack the finding of the High Court Division in that respect.
In view of the above, we find no merit in the leave petition.
Accordingly, the same is dismissed.
