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Saturday, February 25, 2017 03:38:10 PM
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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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24th-Sep-2016       Readers ( 316 )   0 Comments
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 (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.

(Concluded)

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