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Once promoted, one can't be demoted without cogent reason(s)

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26th-Nov-2016       
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Appellate Division :
(Civil)
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
Md Anwarul Haque J
Judgment
January 27th, 2014
Government of Bangladesh and others ... Petitioners
vs
Md Abul Kashem
…… Respondent
Police Training College Manual Part III (A) Rule 64
Once promotion is given and there cannot be any demotion without given a second chance or given any notice of his impending demotion or any starting departmental proceedings leading to a punishment, or any lak of available post.
Once promotion is given, there cannot be any demotion unless there is departmental punishment or lack of available post. The report recommended to allow Md Abdul Quddus Shikder to undertake training again at the Academy. The respondent claimed that he and Md Abdul Quddus Shikder received training at the same time and both were shown as unsuccessful in the oral examination. In the  case of Abdul Quddus Shikder departmental proceedings were drawn and it was decided that he could not be demoted. In the case of the respondent no departmental proceeding was drawn up, and yet he was demoted. Upon consideration of all the aforementioned facts and circumstances, the Administrative Tribunal allowed the respondent's case. ….(5)
Rajik-al-]alil, Deputy Attorney-General, instructed by B. Hossain, Advocate-on-Record-For the Petitioners.
Sufia Khatun, Advocate-on-Record, on behalf of Abu Siddique, Advocate-on-Record-For the Respondent.
Judgment
Md Imman Ali J: This civil petition for leave to appeal is directed against judgment and order dated 26-8-2009 passed by the Administrative Appellate Tribunal, Dhaka in AAT Appeal No. 22 of 2008 dismissing the appeat thereby upholding the judgment and order dated 20-8-2007 passed by the Administrative Tribunal-I, Dhaka in AT Case No. 141 of 2005.
2. Facts of the case in brief are that the respondent, Md Abul Kashem was promoted from the post of police constable to ASI on 1-1-1990 and to SI on 4-5-2000. On 21-4-2005, the authority issued an order under Rule 64 of the Police Training College Manual Part III (A) cancelling his probationary period and demoting him to the rank of ASI on the ground that he was unsuccessful in the final supplementary examination at the Police Academy, Sharoda. The Administrative Tribunal upon hearing the parties allowed the case of the respondent declaring that the impugned order dated 21-4-2005 was illegal and not binding upon the respondent.
The direction was given to reinstate the respondent to the rank of SI and to pay all arrears and benefits. The government filed an appeal before the Administrative Appellate Tribunal Dhaka, which upon hearing the parties concerned was dismissed. Hence the government has filed the instant civil petition for leave appeal.
3. The learned Deputy Attorney-General, Mr Rajik-Al-Jalil submitted that the respondent was unsuccessful in the final examination and was duly demoted as provided by the Police Training College Manual Part III (A). He pointed out that Rule 64A Group-B III C(4) provides that "a departmental cadet who fails to pass the final examination and is not allowed an other chance by the Inspector-General of Police (vide Rule 59) shall be permanently revert (sic) to the rank Assistant Sub Inspector and returned to his district". However he was not able to tell us clearly whether the respondent had been given a second chance. On the other hand, the learned DAG submitted that giving of a second chance was a discretion and did not create any right in favour of the respondent.
4. We have considered the submissions of the learned Deputy Attorney-General, perused the impugned judgment and order as well as other papers on record.
5. In the judgment of the Administrative Tribunal we find a report of the Additional Superintendent of Police, Bagerhat dated 4-9-2005 in respect of SI Md Abdul Quddus Shikder. From this report it appears that "once promotion is given, there cannot be any demotion unless there is departmental punishment or lack of available post. The report recommended to allow Md Abdul Quddus Shikder to undertake training again at the Academy. The respondent claimed that he and Md Abdul Quddus Shikder received training at the same time and both were shown as unsuccessful in the oral examination. In the case of Abdul Quddus Shikder departmental proceedings were drawn and it was decided that he could not be demoted. In the case of the respondent no departmental proceeding was drawn up, and yet he was demoted. Upon consideration of all the aforementioned facts and circumstances, the Administrative Tribunal allowed the respondent's case.
6.  The Administrative Appellate Tribunal found that the authority did not serve any show cause notice to the respondent and arbitrarily issued the impugned order. It was observed that the authority could not show that there were any materials against the respondent for passing the order impugned as per Rule 64 of the Police Training College Manual Part III (A). Thus, the petitioner's appeal was dismissed.
7. We find that the judgment and order of the Administrative Tribunal contains cogent reasons for declaring the impugned order of the police authority as illegal and not binding on the respondent.
There is nothing on record to show that the respondent was given a second chance, or given any notice of his impending demotion, or any indication that there was any departmental proceeding leading to a punishment, or any lack of available post. In such circumstances, the impugned demotion of the respondent was clearly illegal.
We do not find any illegality in the judgment and order of the Administrative Appellate Tribunal, and accordingly we find no merit in this Civil Petition for Leave to Appeal, which is dismissed.

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