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Guidelines to follow in the process of absorption

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High Court Division :
(Special Original Jurisdiction)
Tariq-ul-Hakim J
Abu Taher Md
Saifur Rahman J
Judgment
June 18th, 2013
Hassan Ahmed Khan @ Hassan Ali Khan and others. Petitioners
vs
Secretary, Ministry of
Finance, Dhaka and others .... Respondents
Constitution of Bangladesh, 1972
Article 102(2)
Process of absorption-The petitioners rendered their services to the Government and it was natural for them to expect to continue in their employment and get regularised in permanent posts if an opportunity arises though it is not mandatory upon the employer to so absorb them. In the process however the petitioners have become barred from seeking alternative employment in other posts of the Government or even private commercial enterprises because of their age. Fairness and equity demands that the Government gives the petitioners preference in appointing them in permanent posts and regularize their employment as and when such vacancy arises. . ..... (12)
LGED vs Mizanur Rahman, 17 BLC (AD) 91 ref.
Bahasti Marjan with Momtaz Begum-For the Petitioners.
Kazi Zinat Haque DAG-For the Respondent No.1.
Judgment
Tariq-ul-Hakim J : Rule Nisi has been issued calling upon the respondents to show cause as to why direction should not be given upon the Respondent Nos. 1-8 to re-appoint the petitioners as permanent employees as per proposal letter written by the Respondent No.8 vide Memo No. Nathi No. IE-IO/2007-2008/ 186 dated 24-1-2008 (Annexure-F) to the Respondent No.4, seeking direction from the Board, to regularize the 14 (fourteen) working employees including the petitioners who have been selected by the Divisional Selection Committee and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Facts relevant for disposal of this Rule is that the petitioners were appointed in the office of Commissioner of Taxes, Taxes Zone, Khulna in different dates in the year 1992 to 2004 and they joined their posts as per their appointment letters issued by the Respondent No. 8 as 4th class employee against vacant posts on condition of no work no pay basis i.e. on daily payment basis which was specifically mentioned in their appointment letters.
After joining in their respective posts the petitioners have been discharging their duties with honestly and sincerity and they received their wages and other financial benefits from the Government regularly.
3. It is further stated that subsequently Respondent No.8, Commissioner of Taxes,  Khulna Zone issued appointment letters to the petitioners for each consecutive year and the petitioners were transferred from one Circle to another in the Commissioner's office, Boyra, Khulna to perform normal routine work and the petitioners worked to the satisfaction of the superior authority. While the petitioners were working at different offices of Taxes Zone, Khulna a clearance letter vide Memo No. SM (SP) 29/2002-307 dated 18-4-2004 was issued from the Surplus section of the Ministry of Establishment, Bangladesh Secretariat, Dhaka for new appointment against the vacant posts and on that basis a 4(four) Members Divisional Selection Committee was formed comprising the Respondent Nos. 9-12 and they selected 22 persons including the petitioners on 26-4-2004 and the concerned authority renewed the appointment of the petitioners vide Order No. Nathi -IE-10/2005-2006 dated 14-5-2006.
4. It is further stated that one Shahnaz Arefin, Senior Assistant Secretary, Committee Affairs section, Cabinet Ministry, Government of Bangladesh issued a letter vide Memo No. M.Pabi/Kabisha/Kapaga-11 (Part-l)!l2001-120 dated 24-6-2004 directing the concerned authority, Secretary, Ministry of Finance, with a request to take necessary action to regularize the employment of certain persons who were working as employees as per "no work no pay" basis. It is further stated that subsequently the Respondent No.5 wrote a letter vide Memo No. Nathi IE-10/2007-2008 dated 24-1-2008 to the Respondent No.4 praying for a direction from the National Board of Revenue to regularize 14 working employees as per the principle of no work no pay basis who were selected by the Board including the petitioners.
5. It is further stated that all on a sudden, the concerned authority stopped payment of wages and financial benefits to the petitioners since 1-2-2008 without any prior notice. The petitioners made representations to the Respondent Nos. 3 and 8 praying for their
employment as well as for payment of their salary from January to May, 2008 but did not receive any satisfactory response. On 29-7-2009 the petitioners sent to the respondents a Demand for Justice Notice through their learned Advocate but received no satisfactory response.
6. Being aggrieved, the petitioners have come to this Court and obtained the present Rule.
7. The Rule is being contested by the respondent No. 3 by filing Affidavit-in Opposition dennying material allegations and stating inter alia that the petitioners were employees on no work no pay basis and the authority always reserved the right to terminate them as required as per their discretion. It is further stated that the petitioners never drew any monthly salary and daily basis salaries were· stopped in 2009 in accordance with the Government rules and regulations and that there is no violation of any law or even the rules of Natural Justice . It is further submitted that the petitioners were employees on purely temporary basis on no work no pay basis and that the authority had the right to cancel their appointment without showing any reason and that the impugned order calls for no interference by this Court.
8. In a Supplementary Affidavit filed on behalf of the petitioners a has been stated that the petitioner No.3 Md Abdur Razzak and the petitioner No. 4 Md Shafiqul Islam were recently re-appointed on 31-7-2011 and 9-6-2010 respectively in the aforesaid respondents' office in the posts of Night Guard and notice Server on purely temporary basis and prays that their jobs may· be regularized as permanent employees.
9. Mrs Momtaz Begum appearing with Mrs. Bahasti Marjan for the petitioners Submits that the petitioners have been working honestly and sincerely under the Respondent No.8 but they have been arbitrary terminated from their employment without assigning any reason and on humanitarian ground they should be allowed to continue in their jobs.
The learned Advocate further submits that since recommendations have been made as reflected in Annexure-F they are entitled to be appointed in permanent posts. 'The learned Advocate further submits that the petitioners have been deprived of their salary from January to May, 2008 and they are legally entitled to the same.
10. As against this, Ms Kazi Zinat Haque, the learned Deputy Attorney-General for the Respondent No. 1 submits that the petitioners were working in 4th class post on no work no pay basis and that the authority terminated their jobs as per the rules and regulations of the Government and, as such, the petitioners are not entitled to be re-employed and the action of the respondents calls for no interference by this Court. She also points out that there is no continuity of service of the petitioners and as such they deserve no consideration to be absorbed in the permanent post.
11. It appears that the petitioners were employeed for 5-13 years by the respondents on purely temporary basis on no work no pay basis. Subsequently in 2008 their employment was terminated and it is alleged that they were not paid any salary from January to May, 2008. The learned Deputy Attorney-General has not. been able to enlighten us of the actual position on this matter and as such we hold that the petitioners are entitled to their wages for the said period i.e. January to May, 2008 if they have actually worked for the aforesaid period.
The concerned authority is therefore directed to pay the petitioners wages for the aforesaid period from January to May, 2008 immediately.
12. The next point for adjudication is that whether the petitioners are entitled to be absorbed in permanent posts of the Government. It is not denied that they were working on no work no pay basis in various posts in the office of the Commissioner of Taxes, Khulna. It is also apparent that there is no complaint or black mark awarded to any of the petitioners for bad service during their employment. It further appears that the petitioner No. 3 Md Abdur Razzak and petitioner No.4 Md Shafiqul Islam have been re-employed as 4th class employees since 2011 and 2010. respectively although their continuity . of service has been broken they are nevertheless working for the Government· now and have been re-employed.
The petitioners rendered their services to the Government and it was natural for them to expect to continue in their employment and get regularised in permanent posts if an opportunity arises though it is not mandatory upon the employer to so absorb them. In the process however the petitioners have become barred from seeking alternative employment in other posts of the Government or even private commercial enterprises because of their age. In such view of the matter, fairness and equity demands that the Government gives the petitioners preference in appointing them in permanent posts and regularize their employment as and. When such vacancy arises. This finds support from the judgment of the Appellate Division in the case of LGED vs Mizanur Rahman reported in 17 BLC (AD) 91. The respondents are therefore directed to pay the salary of the petitioners for the period of January to May, 2008 provided they actually worked under the Respondent No.8, Commissioner of Taxes, Boyra, Khulna within three months of receipt of copy of this Judgment. The respondents are further directed to employ the petitioners in permanent posts of the Republic subject to their having requisite qualifications by disregarding their age.
Accordingly, this Rule is made absolute.

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