Appellate Division
(Civil)
Md Muzammel Hossain CJ
Surendra Kumar Sinha J
Md Abdul Wahhab Miah J
Hasan Foez Siddique J
Government of Bangladesh and others…….. Petitioners
vs
Md Gazi Shafiqul
and others ………
. ….. Respondents
Judgment April 24th, 2013
Constitution of Bangladesh, 1972 Article 102(2)
When no affidavit-in-opposition was filed before the High Court Division denying or controverting the case of the writ-petitioners, the High Court Division had no option but to accept the case of the writ-petitioners ………..(10)
Rajik-al-Jalil, Deputy Attorney-General instructed by Madhu Malati Chowdhury Barua, Advocate-on-Record-For the Petitioners.
Abdul Baset Majumder, Senior Advocate with Pankaj Kumar Kunda, Advocate instructed by Giasuddin Ahmed, Advocate-on-Record-For the Respondents.
Judgment
Md Abdul Wahhab Miah J: This petition for leave to appeal has been filed by the writ respondents calling in question the judgment and order dated the 12th day of February, 2012 passed by the High Court Division in Writ Petition No.6406 of 2010 making the Rule absolute.
2. The respondents, 7(seven) in number, filed the above mentioned writ petition before the High Court Division challenging the appointment orders dated 22-6-2010 issued by the Director General, Directorate of Food (writ respondent No.3) for the posts Food Inspector, Sub-Inspector of Food and Assistant Sub Inspector of Food to have been issued without lawful authority and were of no legal effect and accordingly, the Rule was issued.
3. The case of the writ-petitioners as made out in the writ petition, in short, was that in 2004, writ-respondent No.4, the Director (Administration), made an advertisement vide Memo No. cÖkv/ms¯’v/1wb‡qvM-01/2002 (Ask-1)/2125 dated 2-9-2004 for appointment in different posts including Food Inspector, Sub-Inspector of Food and Assistant Sub-Inspector of Food under the Directorate of Food. The said advertisement was published in ‘The Daily Observer” dated 9-9-2004, but no examination was held within the next two years. Then another similar advertisement was made under Memo cÖkv/ms¯’v/1wb‡qvM-03/2005-6292125 dated 26-4-2006 and this time, no examination was also held within the next two years. Finally, writ respondent No.4 made another advertisement vide Memo. cÖkv/ms¯’v/1wb‡qvM-01/2008-717 dated 2-6-2008 which was published in “The Daily Jugantor” of 8th June, 2008. In the last advertisement, it was mentioned that the candidates, who already applied earlier, need not apply afresh. Writ-petitioner No.1, Gazi Md Shafiqul; writ-petitioner No.2, Md Anisuzzaman Talukder; writ-petitioner No.3, Nurani Sultana Afrose and writ-petitioner No.5, Md Abul Kalam Azad applied for the post of Food Inspector in 2004; writ-petitioner No.4, Md Jalal Uddin Sarder applied for the same post in 2006; writ-petitioner No.6, Md Ferdous Alam applied for the post of Sub-Inspector of Food in 2004 and 2006 respectively; writ-petitioner No.7, Md Atiqul Islam applied for the post of Assistant Sub-Inspector of Food in 2008. The respective writ-petitioner had requisite qualifications for the appointment in the respective post during submission of the respective application and all of them applied for the respective post in the quota ‘Children of the Freedom Fighters’. The writ-petitioners submitted relevant papers including the freedom fighters’ certificate of their respective fathers.
All the writ-petitioners sat in the written tests against their respective post held on 24-4-2009 and came out successful in the tests. Accordingly, they got admit card for their viva voice. The viva voice of the writ petitioners took place on different dates between 11-11-2009 and 2-10-2010. According to the assumption of the writ-petitioners, they did well in the quota of children of the Freedom Fighters and they were expecting to be selected for appointment and posting. After holding a so-called viva voice, writ-respondent No.3 declared the result and subsequently gave appointment to 965 candidates in the post of Food Inspector, Sub-Inspector of Food and Assistant Sub-Inspector of Food (Inspector = 350, Sub-Inspector =196 and Assistant Sub Inspector = 419) by the order dated 22-6-2010. The Ministry of Establishment issued an order vide Memo No.05.170.022.07.01.020. 2010-59 dated 16-2-2010 in respect of Freedom Fighter quota. In that order, it has been mentioned that if the quota of the Freedom Fighters’ children cannot be filled up, the concerned posts would remain vacant.
The whole process of the: impugned appointments was questionable. There were various allegations of corruptions and unfair means against the writ-respondents in holding the examinations and declaring the results. The news of irregularities of the writ respondents was widely reported in many national dailies. Despite that, the writ-respondents did not stop the process of appointment rather they made the impugned appointments most arbitrarily, unfairly and malafidely. Age of the Government service of all the writ-petitioners except writ-petitioner No.7 has already expired.
Since the writ-petitioners successfully completed the written examinations and the viva voice, they had legitimate expectations that they would be selected for their respective post in the quota for ‘Children of Freedom Fighters’. But due to illegality, arbitrariness and pick and choose policy’ of the writ-respondents in the appointment process, the writ-petitioners have been dropped out and they have no possibility of getting any Government job since their Government stipulated service age is already over. The writ-respondents did not follow the guideline of the Government vide Memo No.05.170.022.07.01.020.2010-59 dated 16-2-2010 issued from the Ministry of Establishment in respect of the quota of the Freedom Fighters’ children and, as such, the impugned appointment orders were liable to be declared to have been made without lawful authority and were of no legal effect. According to the Government guideline, the concerned Post would remain vacant, if the quota for the Freedom Fighters’ children is not filled up.
The impugned appointment orders do not reveal as to whether the said quota has been maintained and, as such, the same were liable to be declared to have been made without lawful authority and were of no legal effect. The orders were also violative of the fundamental rights of the writ-petitioners guaranteed in Articles 27, 31 and 40 of the Constitution.
4. No affidavit-in-opposition was filed by the writ-respondents controverting the statements made in the writ petition. However, as it appears from the impugned judgment and order that at the time of hearing the Rule, the learned Deputy Attorney-General appeared on behalf of the writ-respondents, but he could not make any effective submission as the High Court Division noted that “the learned DAG, could not assist much as being without instruction.”
5. By the impugned judgment and order, the High Court Division made the Rule absolute in the following terms:
“The respondents are directed to accommodate the petitioners, seven in number, either in addition to those people already appointed or by excluding, seven persons from the bottom of the list forthwith.”
6. Mr. Rajik-al-Jalil, learned Deputy Attorney-General, appearing for the writ respondent-petitioners submits that the writ petitioners did not furnish any detail about the number of appointments made from the category of Freedom Fighters’ children; therefore, in the absence of such detail, the High Court Division erred in law in directing the Government to appoint them from the quota of the children of the Freedom Fighters. He submits that the High Court Division erred in law in giving the direction upon the Government to appoint the writ-petitioners inasmuch as before giving such direction, it should have ascertained whether there were vacant posts or not, and that there might be other better candidates in the category of children of the Freedom Fighters than the writ-petitioners.
He further submits that the High Court Division failed to consider that it is not practically possible to cancel the appointment of persons who were previously appointed. He further submits that the High Court Division failed to consider that the appointments of Food Inspector, Sub- Inspector of Food and Assistant Sub-Inspector of Food, were made after observing all the legal formalities following 30% quota for the children of the Freedom Fighters and as such, the writ-petitioners had no cause of action to file the writ petition and the Rule was liable to be discharged for want of cause of action. He lastly submits that the writ-petition was based on disputed question of fact which could not be decided in a summary manner under the writ jurisdiction; therefore, the Rule was liable to be discharged on the ground of maintainability and, as such, the impugned judgment and order calls for interference by this Court.
7. Mr Abdul Baset Majumder, learned Counsel, entering caveat on behalf of the writ petitioner-respondents, has supported the impugned judgment and order.
8. From the statements made in the writ petition as summarized hereinbefore, it appears that the whole grievance of the writ-petitioners was that they are the children of the Freedom Fighters and they have applied for the appointment in the respective post of Food Inspector, Sub-Inspector of Food and Assistant Sub Inspector of Food having requisite qualifications and they having duly qualified for the respective post both in the written and the viva voce examination, were entitled to be appointed to the respective post they applied for. The writ-respondents gave the impugned appointments without following 30% quota reserved for the children of the Freedom Fighters and in the process, the writ-petitioners were not appointed illegally and in the meantime, except writ-petitioner No.7, all other writ-petitioners crossed the age of the Government job.
9. As already stated hereinbefore, no affidavit-in-opposition was filed by the writ respondents controverting the assertions made in the writ petition that the writ-petitioners were the children of the Freedom Fighters, that they filed the relevant papers in support of their claim, that they were the children of Freedom Fighters and that they qualified for the respective post in both the examinations: written and viva voce and that the writ-respondents made the appointment by the impugned orders without fulfilling the 30% quota reserved for the children of the Freedom Fighters.
10. In the leave petition, though it has been submitted that the High Court Division failed to appreciate that at the time of appointment of Food Inspector, Sub-Inspector of Food and Assistant Sub-Inspector of Food “30% (thirty percent) quota of children of Freedom Fighters was followed”, no paper or document has been filed to substantiate the said submission. When in the writ petition, the writ-petitioners categorically asserted that in giving the appointments by the orders impugned in the writ petition, 30% quota reserved for the children of the Freedom Fighters was not followed and the High Court Division found that “In this case as the documents shows(sic), this policy has not been followed”, the leave petitioners (the writ respondents) were under legal obligation to produce documents/papers to show that in appointing the Food Inspector, the Sub Inspector of Food and the Assistant Sub Inspector of Food, 30% quota of the children of the Freedom Fighters was followed, but they have not produced any such papers. Admittedly, when no affidavit-in-opposition was filed before the High Court Division denying or controverting the case of the writ-petitioners that 30% quota for the children of the Freedom Fighters was not followed, the High Court Division had no option but to accept the case of the writ-petitioners; therefore, we find no substance in the submissions of the learned Deputy Attorney-General. In this regard, it may further be stated that the statements made in the writ petition that except writ-petitioner No.7, the other writ-petitioners have already crossed the age of getting the Government job, was also remained un-assailed.
11. In view of the above, we find nothing wrong with the High Court Division in holding that “As a result of the Respondents’ failure to come up with any affidavit in opposition, we have no choice but to accept as true the averments and the claims that has been laid by the petitioners. The petitioners claims(sic) that the 30% quota system has not been followed in the recruitment process. There is no doubt that there is a policy being followed by the government that in every appointment 30% quota must be kept for the freedom fighters or there(sic) off springs. In this case as the documents show, this policy has not been followed. The impugned decision, can, hence not be termed as lawful.” Therefore, no interference is called for with the impugned judgment and order.
12. However, considering the facts and circumstances of the case and the submissions of the learned Deputy Attorney-General, we direct the writ-respondents to implement the direction of the High Court Division immediately, if 30% quota for the children of the Freedom Fighters has not been filled up in making the appointments in the posts of Food Inspector, Sub-Inspector of Food and Assistant Sub-Inspector of Food.
13. We make it very clear that the writ respondents shall not take any other excuse or plea to avoid the appointment of the writ-petitioners pursuant to the direction of the High Court Division in the respective posts they applied for in case 30% quota reserved for the children of the Freedom Fighters was not maintained in making the appointments.
This petition is disposed of accordingly.
