(From previous issue) :
In coining to the said finding, the High Court Division relied upon Memo No. wkí/¯^m-5/ eGmwUAvB-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.
(Concluded)
In coining to the said finding, the High Court Division relied upon Memo No. wkí/¯^m-5/ eGmwUAvB-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.
(Concluded)
