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Employees in service enjoy right to preference for absorption

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25th-Mar-2017       
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High Court Division
(Special Original Jurisdiction)
Tariq-ul Hakim J
Md Faruque J
Judgment
June 14th, 2016
Shahidul Islam (Md) and
Others-Petitioners
vs
Bangladesh, represented by Secretary, Ministry of Primary and Mass
Education, Bangladesh and others     ············ ............... Respondents
Constitution of Bangladesh, 1972
Article 102(2)
Absorption-After utilizing an employee for more than 20 years by taking his service and then not giving him any employment without assigning any reason is highly unfair and undesirable. The petitioners have a right to be given preference over new applicants for employment either in the development budget or revenue budget provided their past employment history is satisfactory. If there is no vacancy in the revenue set up of the respondents, the respondents are directed to consider them for employment in the development budget as per decision.     .. .... (10 & 11)
Chief Engineer, LGED vs Kazi Mizanur Rahman, 17 BLC (AD) 91 and Government of Bangladesh vs Md Anisur Rahman, 18 MLR (AD) 372 ref.
Md Khurshid Alam, with MA Latif Prodhan, Advocates-For the Petitioners.
Amatul Karim, DAG with ARM Hasanuzzam AAG-For the Respondent Nos. 1-7.
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 respondents to transfer service of the petitioners to the revenue budget from the development budge and appoint them to the post of Upazila Programme Officer and Clerkcum-Computer Operation of Upo-Anushthanic Shikkha Bureau 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 in short is that the petitioners were appointed by Memos dated 22-11-1999 and 12-7-2000 to the post of Clerk-cum-Computer Operator and Upazila Programme Officer of Upo-Anushthank Shikkha Bureau in different Districts and Upazilas of Bangladesh pursuant to Notification under Memo Nos. DwbA/cÖt84/wb‡qvM/wmwmI/98/1812 ZvwiL 22-11-1999 and cÖvMwe/ Dt-4/DwbA/wb‡qvM-26/99-2000/292 12-7-2000 thereafter they joined their services in their respective places of work. It is further stated that the petitioners have been rendering service to the satisfaction of their superior authorities since their appointment and after 3(three) years pursuant to Memo No. DwbA/cÖkv-238/cÖ-4 wejyß/ 03/488 dated 2-8-2003 their services were terminated since the period of the Project ended with effect from 30-6-2000. The petitioners thereafter made representations to the Government to absorb them in revenue budget and/ or in other Project. The Personal Secretary of the Prime Minister forwarded the petitioners' application to the Ministry of Establishment for appropriate action. Thereafter, the Ministry of Education under the signature of Senior Assistant Secretary vide Memo dated 2-3-2009 forwarded the matter to absorb the petitioners to the Director General of Upo-Anushthanic Shikkha Prokalpa-4 vide Memo No cÖvMg/cÖkv-1/ivR¯^ LvZ-7/2009/107 dated 2-3-2009 for absorbing them in the revenue budget. The
Director General of Upo- Anushthanic Shikkha Prokalpa-4 thereafter referred the matter to the concerned Ministry for appropriate action.
In this way, the petitioners have been making representations to different authorities for absorbing them in the revenue set up of the Government but received no satisfactory response. In the meantime it is stated that they have all crossed the age limit to get employment of Government service.
3. Being aggrieved, the petitioners have come to this Court and obtained the present Rule.
4. The Rule is opposed by the Respondent Nos. 1-7 by filing Affidavit-in-Opposition stating inter alia that the petitioners were appointed as Clerk-cum-Computer Operator and Upazila Programme Officer of Upo-Anushthanic Shikkha Bureau under the Director of Non Formal Education Project-4 and their appointment is only for Project period i.e. upto 30-6-2000. After the project came to an end on 30-6-2000 their appointment automatically came to an end and there is no scope to employ them in any other project and/ or transfer them to the revenue budget. It is further stated that there is no promise in the project profile of Non Formal Education Project-4 and no SRO was issued to transfer the petitioner (workforce) and employees of the said project to the revenue budget from the development budget and, as such, the petitioners have not acquired any right to be transferred to the revenue set up and, as such, the instant Rule is liable to be discharged .
5. Mr Md Khurshid Alam Khan, the learned Advocate for the petitioners submits that many employees from the project have been transferred to the Revenue Budget from the Development Budget but the petitioners who have been working for a long time in the Development Project have not been transferred to the Revenue Budget which is discrimination against them and they have been deprived from their right to employment and equality. The learned Advocate has drawn our attention to a judgment of this Court in Writ Petition No. 1780 of 2007 where their Lordships directed the respondents to absorb the petitioners who belonged to the Non Formal Education Project-1 to the revenue set up of the Government and he submits that in the instant case also the petitioners deserve to be transferred to the revenue set up. The learned Advocate has drawn our attention to the case of LGED vs Kazi Mizanur Rahman reported in 17 BLC (AD) 91 where certain guidelines have given for absorbing persons from the Development Budget to the Revenue Budget and prays that in the instant case also a direction may be given to the respondents to absorb the petitioners in the revenue set up.
6. As against this Ms. Amatul Karim, the learned Deputy Attorney-General submits that the petitioners were employed in a project for Non Formal Education Project-4 which came to an end on 30-6-2000 and along with that the employment of the petitioners also came to an end. They were employed for a temporary period for the duration of the project and that does not give them any right to be absorbed in permanent employment of the Government and in that view of the matter, the Rule is liable to be discharged.
7. We have considered the submissions of the learned Advocates.
8. It is admitted that the petitioners were employed in the Development budget of the Government for the project duration there is no allegation against the petitioners as to their service record. In Writ Petition No. 7658 of 2011 in the case of Mousumi Akhter vs Government of Bangladesh it has been stated that there was an unambiguous direction from the Economic Committee of the National Economic Council (ECNEC) to the effect that subject to satisfaction of certain criteria, the project employees would be absorbed in permanent jobs. This resolution was taken on 10th January, 2008.
9. The aforesaid decision of ECNEC and the Government allows sufficient scope for persons to be employed in the revenue set up of the Government if they had rendered service in the development project. The Appellate Division of the Supreme Court of Bangladesh in the case of Chief Engineer, LGED vs Kazi Mizanur Rahman reported in 17 BLC (AD) 91 has given certain guidelines on the basis of which employees may be absorbed in the revenue budget from amongst those who worked in the development project. The guidelines are as follows:
(i) Whenever any vacancy in the revenue set up in LGED is created, it shall consider for absorption employees or officers from the development projects within the meaning of Section 2(ga) of the Rules, 2005, if the project in which she/he is working is completed subject to the condition that such employee or officer has requisite qualifications for the said post.
(ii) Whenever a vacant post is created in the revenue budget the LGED shall absorb / transfer an employee or officer from the development project mentioned in Clause (1) to fill up that post in accordance with Rules of 1985 and the ECNEC's decision dated 10th January, 2008.
(iii) An officer or employee shall be absorbed if she/he was appointed in the development project within the meaning of Rule 2(ka) of Rules, 2005 in accordance with the procedures prescribed for appointment in public employment.
(iv) An officer or employee must have requisite qualifications for the post in which he is seeking absorption.
(v) An officer or employee must have continuity in service in the project in which he is working.
(vi) An officer or employee must have satisfactory service record before his case is considered for regularization in the revenue budget.
(vii) If an officer and employee whose rank and status does not relate to the posts advertised by the impugned notifications on the day of its publication such officer or employee would not be eligible for consideration for absorption.
(viii) The employees and officers who have been working in the development projects mentioned in Clause (1) on monthly pay basis would only he eligible for consideration for absorption in the revenue budget.
(ix) Unless and until vacancies in the revenue budget in the LGED are created, the employees and officers of the development projects mentioned in Clause (1) cannot claim as of right to be absorbed in the revenue budget.
(x) While considering and selecting an employee or officer of the development project for absorption in the revenue budget, the appointing authority shall maintain strictly the prevailing quota system for employment in the public employment being followed by the Government.
(xi) The LGED shall consider the cases of those working on master roll basis for absorption in the revenue budget by phases if they have requisite qualifications subject to availability of vacancies according to their seniority.
10. In several judgments this Court has directed the authorities to absorb/appoint employees in the permanent set up from amongst those who have been working on temporary or master roll basis over a period of time provided that there is no contrary report against them. Vacancies in permanent posts are all the time occurring due to the huge nature of development projects undertaken by the said Ministry. After utilizing an employee for more than 20 years by taking his service and then not giving him any employment without assigning any reason is highly unfair and undesirable. It has been alleged by the petitioners some employees from Non Formal Education Project-1 and 2 have been employed in the revenue set up but the petitioners have been discriminated against and have been deprived from such permanent employment.
11. In Writ Petition No. 1780 of 2007 a Division Bench of this Court directed the respondents to absorb employees of Non Formal Education Project-2 to the revenue set up. In our view therefore the petitioners have a right to be given preference over new applicants for employment either in the development budget or revenue budget provided their past employment history is satisfactory.
The respondents are therefore directed to employ the petitioners in the revenue budget subject to satisfaction of criteria stated in the case of Chief Engineer, LGED vs Kazi Mizanur Rahman reported in 17 BLC (AD) 91. Of course, if there is no vacancy in the revenue set up of the respondents, the respondents are directed to consider them for employment in the development budget as per decision in the case of the Government of Bangladesh vs Md Anisur Rahman reported in 18 MLR (AD) 372.
12. With the above directions and observations this Rule is disposed of.
There will be no order as to costs.

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