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Amended service rules shall not be applicable to the detriment of privileges existed at the relevant time

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Surendra Kumar :
Sinha CJ
Hasan Foez Siddique J
Mirza Hussain
Haider J
Mohammad Bazlur
Rahman J
Bangladesh Bank, and another ............Appellants
vs
Sukamal Sinha  Choudhury and another............. Respondents*
Judgment
February 23rd, 2016     
Constitution of Bangladesh, 1972 Article 102(2)
Bank Company Act (XIV of 1991)
Section 45
The authority has every right to amend/ alter the service Rules to suit the need of the time and, as such, there is no illegality in preparing the circular with new terms and conditions but such new terms and conditions prepared by the authority shall not be applicable to the detriment or disadvantage to the privilege that existed at the relevant time when an employee of such appointing authority entered into its service. .. .... (10)
Bangladesh vs Md Azizur Rahaman, 46 DLR (AD) 19; Bakhrabad Gas System Limited vs Al Masud-ar-Noor, 66 DLR (AD) 187 ref.
M Amir-ul-Islam, Senior Advocate, instructed by Mahmuda Begum, Advocate-on-Record-For the Appellrl11ts.
Mahbub Ali, Senior Advocate (with AM Al1linuddi/'I, Senior Advocate) instructed by Chowdhury Md Zahangir, Advocate-on-Record-For the Respondents.
Judgment
Mirza Hussain Haider J : This appeal is directed against the judgment and order dated 2-6-2010, passed by High Court Division in Writ Petition No. 530 of 2009 making the Rule absolute.
2. The present respondent No.1 filed the abovenoted writ petition impugning the Administrative Circular No. 10 dated 30-4-2005 issued by the respondent No. 3 making policy for promotion to the post of General Manager.
3. Facts leading to the filing of this appeal in short are that the respondent No. 1 herein (the writ petitioner) joined Bangladesh Bank as Statistical Officer on 14-2-1979 in the Specialized Department and subsequently was transferred to the General side as Assistant Director. Thereafter, he was promoted to the post of Deputy Director- on 31-8-1987, then to the post of Joint Director on 6-5-1991 and lastly to the post of Deputy General Manager on 9-3-1997. While functioning as such, he performed the functions of the General Manager on several occasions in the absence of the General Manager. It is stated that the Bangladesh Bank formulated criteria for promotion from the post of Class-1 Officers up to the post of Deputy General Manager in the. General side vide Administrative Circular No. 22 dated 26-121979 (Annexure-E ). Since there was no other separate criteria for promotion to the post of General Manager the custom and practice was to promote the senior Deputy General Manager to the said post of General Manager. As such, the writ petitioner became qualified for being considered for promotion to the post of General Manager since 2001 and he was enlisted in the panel for promotion to the said post. In 2003 the authority made a list for promotion in the vacant post of General Manager keeping the writ petitioner at serial No.3. After the senior most person was promoted to the next higher post he became number 2 in the list. In 2004 when the question of giving promotion to five vacant posts of the General Managers came, the respondent No.2 formulated some criteria, in respect of promotion to the post of General Manager at the 269th meeting of its Board of Directors held on 27th April, 2005 and circulated the same by the impugned circular No. 10 dated 30-4-2005, incorporating therein some new terms and conditions to the prejudice of the petitioner. Hence the writ petition was filed which, ultimately, upon hearing the parties, was made absolute by judgment and order dated 2-6-2010 holding that the impugned Circular No. 10, so far it relates to its retrospective effect, is liable to be declared to have been made not under any lawful authority of the Bangladesh Bank Order and, as such, void and as a whole not applicable to the writ petitioner's case'. In the impugned judgment the High Court Division also observed that 'the writ petitioner was eligible for promotion since 2001 and, as such, he is entitled to seniority over his juniors and also entitled to all financial benefits from the date he was first superseded by his Juniors'.
4. Being aggrieved by the said Judgment and order dated 2-6-2010 passed in Writ Petition No. 530 of 2009 the writ respondent No.2 and 3 moved the Appellate Division in Civil Petition for Leave to Appeal No. 58 of 2011 wherein, upon hearing the learned advocate for the leave petitioner, this Division by order dated 12-12-2011 granted leave in the instant appeal to consider:
"1. Whether "the High Court Division erred in law by declaring that "the impugned Circular (Circular No, 10) as far as it relates to its retrospective· effect is liable to be declared to have been made not under any lawful authority for the BBO and void and as a whole not applicable to the petitioner's case without at all taking into consideration that Circular No. 10 came into effect on the date of its publication Le 30-4-2005 having no retrospective effect and was made applicable on 29-9-2009 to the present respondent and thus the impugned judgment is based on erroneous view both on question of law and on fact and that it would be illegal on the part of Bangladesh Bank if the writ petitioner was promoted under the so called practice as claimed on exclusive consideration of seniority and without applying the prevalent law at the relevant time since 30-4-2005."
5. And whether "the Circular No. 10 of 2005, a statutory instrument incorporating a merit -cum-seniority based promotion criteria, along with a transparent and objective evaluation process with a clearly defined criteria and marking system in the ACR plus educational qualification and length of service to be taken into account for appointment to the post of GM in Bangladesh Bank having been found by, the High Court Division inapplicable by treating the right to promotion of an employee being a vested right in the old evaluation system and further upholding private interest of employee (allowing an antedated promotion and seniority with financial benefits) is thus violative of established principle of jurisprudence developed by the Appellate Division of the Supreme Court laid down in Bangladesh vs Md Azizur Rahaman 46 DLR (AD) 19 with particular reference to paragraph 29 wherein the principle as laid down in various Indian Supreme Court cases were consolidated i.e. AIR 1986 SC 830; AIR 1987 SC 2348; AIR 1982 SC 917 adopted as part of Bangladesh Jurisprudence in respect of service Promotion Rules as enunciated in the judgment of the Appellate Division in the following terms:- "a new rule was introduced in Gujrat Subordinate Secretariat Services (Seniority) Rules. By the new rule prospect of promotion in future was prejudiced. Yet, it was held no grievance could be made of the new rules if they are made bonafide to meet exigencies of service. In VT Kanzode's case, an Administrative Circular of the Reserve Bank introduced common seniouity and provided for inter- group mobility among different grades of officers of Groups of I, II, III with retrospective effect. The circular was not violative of Articles 14 and 16 of the Constitution and the Supreme Court in that connection made the following observations Private interest of employees of public undertaking cannot override public interest and an effort has to be made to harmonize the two considerations. No scheme governing service matter can be full (sic) proof and some sections or the other of employees is bound to feel aggrieved on the score of its expectation being falsified or remaining to be fulfilled" 46 DLR (AD) 19 paragrap-29"
6. Mr M Amirul Islam, the learned senior counsel, appearing on behalf of the appellants submits that the High Court Division has erred
in law in holding that the impugned Circular has retrospective effect and thereby declaring the said circular so, far it relates to retrospective effect, unlawful without taking into consideration that the impugned circular came into effect on the date of its publication i.e. on 30-4-2005 having, no retrospective effect and, as such, the same was made applicable to the writ petitioner. He also submits that since the impugned circular was prevailing several years before the promotion of the writ petitioner to the post of the General Manager the same would have been illegal if the writ petitioner was promoted on the basis of the said so called practice of seniority basis only. He further submits that the impugned circular has been made for the betterment and effective functioning of the authority containing therein the criteria for appointment and promotion to the post of General Manager as such, there is no illegality on the part of the respondents in making the. circular. He also submits that the promotion, posting of an employee is not a vested right and in the instant case, though the writ petitioner was eligible to be considered for promotion under the previous customs and practice but since in the meantime a statutory instrument bearing new criteria for promotion on the basis of meritcum-seniority came into effect the writ petitioner could not be considered for promotion to the post of General Manager, any more, under the previous customs and practice. He further submits that the said circular is not violative of any law or constitution and having no retrospective effect the same was not made applicable to the writ petitioner retrospectively. As such, the finding of the High Court Division that 'the said circular has a retrospective effect and the same has prejudiced the writ petitioner' is erroneous. Hence the impugned judgment and order should be set aside. In support of his submissions Mr Islam relied upon the decisions reported in 46 DLR (AD) 19, AIR 1986 (SC) 1830, AIR 1987 (SC) 2348, and AIR 1982 (SC) 917 and thereby prays for allowing the appeal.
7. On the other hand Mr AM Aminuddin, the learned Advocate appearing on behalf of the respondent (writ petitioner), referring to the decision in the case of Bakhrabad Gas System Limited vs Al Masud-or-Noor, reported in 66 DLR (AD) 187 submits that the authority (appellants) have every right to amend/alter Service Rules to suit the need of the time but not to the detriment or disadvantage to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service. He next submits that an employee shall definitely be entitled to the new service benefits if given or created by the new Rules, but no Rules can be framed or created to his disadvantage or detriment or to the denial of his accrued/vested right. Therefore, the writ petitioner (respondent No. I-herein) is entitled to get promotion as well as all other financial service benefits available under the administrative Circular No. 22 of 1979. He next submits that the respondent No.1 being in the penal of promotion to the post of General Manager since 2001 and he placed in Serial No.2 in 2004 and 2005 under the administrative Circular No. 22 of 1979 but he was dropped out from the said penal by the present appellant upon incorporating the impugned Circular No. 10 of 2005 which seriously affected the Respondent No.1 to the detriment or advantage of his service benefits and prejudiced by the newly incorporate circular. As such, the impugned circular No. 10/2005 is not applicable in respect of the present respondent No.1 rather he is entitled to get promotion under the administrative circular No. 22 of 1979. As such, the High Court Division did not commit any illegality in making the Rule absolute. He submits that it is true that promotion is not a matter of right but he has a right to be considered for promotion which is a condition of his service and Article 133 of the Constitution gives power to the
authority to regulate the appointment, seniority and service condition in respect of the anything relating to the service of the persons in the service of the Republic but it does not prohibit promotion beyond the provision of law i.e. administrative Circular No. 22 of 1979. He submits that the term "Regulate" is not complementary to the term "Prohibition", therefore, none of the provisions of the impugned Circular No. 10 of 2005 is to be read to impose prohibition on the promotion of the present respondent No.1 since a right has already accrued to him under Administrative Circular No. 22 of 1979. Lastly, he submits that the appellant herein, during the pendency of the Rule, gave an undertaking to the Court that 'if the writ petitioner succeeds in the writ petition it would make a supernumery post of General Manager for him and straight way give him promotion as per the order of the Court' and accordingly, while making the Rule absolute the Court observed that 'the writ respondent No.2 is barred by promissory estoppel from resiling from its undertaking and, as such, the said authority is legally obligated to fulfill its undertaking.' Thus he submits that the appellant herein instead of complying its undertaking have taken a different plea in this appeal which he is barred by estoppels.
8. Having heard the learned counsel of both the parties and having perused the materials on record it appears that the issue in this appeal is whether circular No. 10 of 2005 will be applicable to the detriment or disadvantage of the respondent herein in respect of promoting him to the post of General Manager or whether he will be governed by the administrative Circular No. 22 of 1979 which was prevailing at the time of selecting him in Serial No.2 of the list for promotion and thereby promote him to the post of General Manager and whether the decision referred to by Mr M Amirul Islam in 46 DLR (AD) 19 will be applicable or the decision referred to by Mr AM Aminuddin in 66 DLR (AD) 187 will be applicable.
9. Admittedly the present respondent joined the Bangladesh Bank on 12-4-1979 as a Statistical Officer in the Specialized Department of the said bank. Thereafter he was promoted to the post of Deputy Director in 1987 and then to the post of Joint Director in 1991 and lastly Deputy General Manager in 1997. It is also admitted that on various occasions, he performed the duties of the General Manager in the absence of the General Manager. When the respondent No.1 joined the Bangladesh Bank the administrative Circular No. 22 of 1979 (Annexure-E) was in force. It is also admitted that the Respondent No.1 herein was placed in Serial No.2 in the seniority list/panel prepared by, the authority on the basis of seniority cum merit in the year 2004-2005. When the post of General Manager fell vacant, the authority at the time of considering the case of the present respondent No.1, came up with some new criteria in respect of promotion to the post of General Manager at its 269th Board Meeting held on 27-4-2005 and the said decision of the Board of Directors along with new terms and conditions were circulated under the administrative Circular No. 10 dated 30-4-2005. Thereby did not consider the case of the respondent No.1 herein in respect of promoting him to the post of General Manager on the plea that he does not fit in within the ambit of the impugned circular No. 10 of 2005.
 (To be continued)
10. The principle laid down in 66 DLR case clearly shows that the authority has every right to amend/ alter the service Rules to suit the need of the time and, as such, there is no illegality in preparing the impugned circular with new terms and conditions but such new terms and conditions prepared by the authority shall not be applicable to the detriment or disadvantage to the privilege that existed at the relevant time when an employee of such appointing authority entered into its service. Here in his case, the present respondent claims that after joining the service of the Bangladesh Bank in 1979 and having been promoted to the next higher post a right has accrued to the respondent herein to be considered for promotion to the post of General Manager as Clause Vr J of Circular No. 22 on 1979 Provides that 'a panel would be prepared once a year based on qualification, standard and length of service as on 31st August each year and would be operative as from the 1st September', that is the panel is to be prepared on seniority cum merit basis.
11. On the other hand Circular No. 10 of 2005 has incorporated the basis for promotion on merit then the seniority without creating any reasonable classification between the prospective promotees in respect of their seniority; meaning the time spent in service has no value and thereby counting the merit only will automatically indulge the junior officers to be promoted to the next higher post without having better experience in service. No matter the new administrative Circular No. 10 of 2005 having the criteria of merit-cum-seniority may be better criterion other than the basis of seniority cum merit but it will not value or justify the service of particular persons in the department. Keeping this in mind the present appellant gave an undertaking to the Court that the respondent No.1 herein would be given promotion to the supernumerary post of General Manager straightway in case he succeeds in the writ petition and as per order of the Court. Bu t now the authority has deviated from its own oath.
12. Under such circumstances we have considered the decisions referred by both the learned counsel. The centre point of the 46 DLR (AD) 19 case is whether the Rules challenged therein are violative of Article 29 of the constitution, which contemplates the right of equal opportunity of the employees in the Republic. The writ petitioners of that case pleaded that by the said Rule their seniority has been violated to such extent that they would be practically debarred from future employment. It was submitted in that case on behalf the writ petitioner, that "seniority is determined by set principles or statuary rules; the order of seniority may also be altered by such rules. Ordinarily alteration of seniority does not curtail the right to future appointment, that is, promotion. Promotion is not a matter of right, it is to be earned by meritorious service which includes efficiency, good conduct, character and integrity, dynamic personality and, above all, sense of value and promotion. Seniority alone is not sufficient for promotion but it is certainly one of the primary requisites for promotion. Though by seniority alone a person cannot earn promotion, he, by virtue of seniority, has a right to be considered for promotion. In the instant cases the impugned Rules did not deprive the writ petitioners of their right to be considered for promotion. At best they may say that their chance for promotion has been reduced to a great extent thereby. Reduction of chance of promotion does not amount to deprivation of the right to equal opportunity for employment. Therefore, in this case, the provision for equal opportunity for employment has not been violated" .
13. The said principle has further been extended in the case of Bakhrabad Gas System Limited vs Al Masud-ar-Noor, reported in 66 DLR (AD) 187 wherein the apex Court held "the appointing authority has every right to amend/ alter the service Rules to suit the need of the time but not to the detriment or disadvantage to the rights or privileges that existed at the relevant time when an employee of such appointing authority entered into its service. To be more explicit, the appointing authority enjoys the power and authority to frame new rules to regulate the service of its employees, but that in no way, can take away the accrued/vested rights of its employees, here the writ-petitioners. We also make it very clear that an employee shall definitely be entitled to the new service benefits if given or created by the new rules, but no rules can be framed to his disadvantage or detriment or to the denial of his accrued/vested right as in the instant case sought to be taken away. The new rules adding new terms and conditions including the one as to the promotion to the next higher posts shall be effective and applicable to the employees, who will be appointed after the coming into effect or force of the same."
14. That being the development in the service law let us see whether the High Court Division has gone beyond that. In this respect on perusal of the impugned judgment and order of the High Court Division one interesting thing has drawn our attention. That is the High Court Division did not declare the administrative Circular No. 10 of 2005 ultra vires rath~r the same having not been given retrospective effect has been declared not wholly applicable in respect of the present respondent's case. This view has been taken considering that if the same is given such effect then the writ petitioner or any person having such qualification to be promoted to the next higher post will be affected because the said Rules has been made to the detriment or disadvantage to the right and privilege that existed at the relevant time i.e. 2001 or 2004 and 2Q05 when the writ petitioner (Respondent herein), was entitled to be promoted, in the post of General Manager.
15. Under the facts and circumstances as stated hereinabove we are of the view that the impugned judgment and order of the High Court Division does not call for any interference by this Division.

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