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Limitation of High Court Jurisdiction

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06th-Jan-2018       
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(From previous issue) :
5. It is further stated that during the tenure of the Respondent No. 6 as Chief Engineer of LGED, numerous allegations of corruption, bribery and dishonest practice had been raised against LGED by various groups, including Transparency International Bangladesh and leading daily newspapers of Bangladesh, in some of which the Respondent No.6 was personally implicated. It is further stated that the Anti-Corruption Commission of Bangladesh is decided to launch an investigation against the Respondent No.6 with respect to the allegation of bribery and corruption against him.
6. It is further stated that the Respondent No.6 will be 60 years old on 11-12-2013 and on the said date he is liable to go on retirement and the Respondent No.1 Ministry and LGED are under obligation to select and appoint a successor who can be promoted to the post of Chief Engineer after the retirement of the Respondent No.6. The petitioners as Additional Chief Engineers of LGED have a legitimate expectation to be considered for promotion to the said post of Chief Engineer.
7. It is further stated that the Respondent No.1, Ministry decided to retain the Respondent\ No.6 as Chief Engineer of LGED even after his retirement from service by giving fresh appointment on contractual basis pursuant to Section 5(3) of the Public Servants (Retirement) Act, 1974 . It is further stated that on the issue of appointing public servants after retirement on contract the Hon'ble President of Bangladesh gave directions, published by the Respondent No.3, Ministry, previously known as Ministry of Establishment, under Memos dated 19-5-1975 and 26-1-1976 that public servants should only be appointed after retirement on contractual basis where there is scarcity of qualified people possessing the requisite technical skills and in all other cases where qualified people are available, such appointments should not be made. The Hon'ble President also directed certain Ministries/ Divisions /Departments/ Organizations for submitting proposals for appointment of a public servant after retirement on contractual basis to lodge documentation along with the proposal evidencing details of all actions taken by them to replace the public servant going on retirement etc.
8. Following reasons was cited in the proposal in favour of appointing the Respondent No.6 :
(i) The Respondent No. 6 has a strong personal relationship with foreign donors such as, World Bank, ADB, JAIKA, IDB, IDA, DFW, SFD, IFAD etc. Respondent No. 6 going on retirement may jeopardize future disbursements of loan promised by the donors.
(ii) The Respondent No. 6 is a brave freedom fighter.
(iii) The Respondent No. 6 going of retirement may jeopardize the continuation of progress and development carried out by LGED during the tenure of the present government. So it would be imprudent to appoint someone new as Chief Engineer of LGED near the end of tenure of the present government lest the rate of progress achieved by LGED is temporarily slowed.
9. Thereafter. the Respondent No.3, Ministry by order of the Hon'ble President issued the impugned Memo dated 3-11-2013 under the signature of the Respondent No.4 appointing the Respondent No.6 as Chief Engineer of LGED on contractual basis for a period of one year from 11-12-2013 or from the date of joining.
10. Being aggrieved, the petitioners have come to this Court and obtained the present Rule.
11. The Rule is being contested by the respondent Nos.1, Ministry of Local Government, Rural Development and Co-operatives, Government of Bangladesh, respondent No.3, Ministry of Public Administration of the Government of Bangladesh and the Respondent No.6, Chief Engineer of LGED by filing Affidavits-in-Opposition stating inter alia that the Respondent No.6 was in fact a freedom fighter and an elected Vice Chairman of Bangladesh Muktijoddha 5angsad. It has been further stated that the Respondent No.6 was appointed as Chief Engineer of LGED by the Hon'ble President on contractual basis after his retirement in the public interest to accomplish the ongoing development works of Local Government and Engineering Development (LGED) as he has a strong relationship and experience with World Bank, ADB, JICA, IDB, IDA, KFW, SFD, IFAD etc:
12. It has been further stated that under Section 5(3) of the Public Servants (Retirement) Act, 1974 the President may in the public interest employ a public servant on contract after his retirement and in the instant case the President has appointed the Respondent No.6 as Chief Engineer of LGED as per the aforesaid section of the Public Servants (Retirement) Act, 1974 after his retirement on contractual basis. It has been further stated that the petitioners have no locus-standi to challenge the Notification dated 3-11-2013 (Annexure A to the Writ Petition) as they themselves do not have qualification to be promoted as Chief Engineer of LGED as they have neither completed 3 years as Additional Chief Engineer nor 26 years of service as first class gazetted officer as stipulated at serial No.1 of the Schedule read with Rule 3 of the Local Government Engineering Department (Officers and Officials) Appointment Rules, 2009 and in that view of the matter, the petitioners cannot be considered as aggrieved persons to file the instant Writ Petition. It is further stated that the petitioners are public servants who are contenders for promotion to the post of Chief Engineer of LGED and promotion being part of the terms and conditions of the service, a grievance in respect of the same undoubtedly falls within the exclusive jurisdiction of the Administrative Tribunal and, as such, the instant Writ Petition is not maintainable. It is further stated that the instant Writ Petition in the form of certiorari is not maintainable in its present form and nature and, as such, the Rule is liable to be discharged and the impugned order calls for no interference by this Court.
13. Mr Rokonuddin Mahmud, the learned Advocate appearing with Mr Mustafizur
Rahman, the learned Advocate for the petitioners has drawn our attention to the Public Servants (Retirement) Rules, 1975 and submits that this Rules have been made pursuant to Section 11 of the Public Servants (Retirement) Act, 1974 which empowers the Government by Notification in the official gazette to make rules for carrying out for the purpose of the Act. In this respect the learned Advocate submits that although under Section 5(3) of the Public Servants (Retirement) Act, 1974 the President has the power to appoint a public servant on contract after his retirement in the public interest as has been claimed in the instant case in respect of the Respondent No.6, such employment has to be done in accordance with the Public Servants (Retirement) Rules, 1975. The learned Advocate then has drawn our attention to Rule 8(1) where it is stated that every proposal for employment by the President under sub rule (3) of Section 5 of a public servant after his retirement shall be made and processed through the Establishment Division (now Public Administration Ministry) and in the instant case he has drawn our attention to Annexure H of the Writ Petition which is a summary sent to the President by the Ministry of Local Government and Engineering Department proposing the appointment of the Respondent No.6 which the learned Advocate for the petitioners submits is contrary to the rules. The learned Advocate for the petitioners has drawn our attention to the contract of proposal Annexure H and indicates that the reasons given therein do not show that the appointment has been made in 'the public interest and, as such, is liable to be set aside for that reason as well. The learned Advocate further submits that since there are allegations of corruption and bribery against the Respondent No.6 it cannot be in the public interest to appoint him for a further period of one year on contract and if the proposal was sent through Ministry of Public Administration as stipulated in the 1975 rules, such matters would have been evident and the President would have been to make the appropriate decision. The learned Advocate further submits that there are other qualified candidates with requisite technical skills of the Respondent No.6 which includes the petitioners and in derogation of the legitimate expectation of such qualified candidates the Respondent No.6 has been appointed to the post of Chief Engineer of LGED and he submits that the said appointment is therefore liable to be set aside.
14. As against this, Mr AF Hasan Ariff assisted by Mr AM Aminuddin and Mr Md Liton Ahmed, learned Advocates appearing for the Respondent No.6 and Mr Murad Reza, the learned Additional Attorney General assisted by Ms. Kazi Zinat Hoque DAG Mr Shams-ud Doha Talukder AAG appearing for the Respondent Nos.1 and 3 have submitted in one voice that the instant Rule is not maintainable as the petitioners have no locus-standi to corne to this Court with the instant matter under Article 102 of the Constitution.
15. The learned Additional Attorney General has shown us a number of references and citations in support of his submissions that the Rule is not maintainable. Firstly, he submits that this is not a public interest litigation and the petitioners are not espousing a public cause but they are simply claiming to be aggrieved by the appointment of the Respondent No.6 to the extent of saying that they are being deprived of their legitimate expectation. In this respect he has cited an unreported decision of this Court in Writ Petition No. 881 of 2001 between Shahjahanur Rahman vs the Government of Bangladesh and others wherein it has been held that "Even in the case of the present petitioner his promotion of the next higher grade was not considered by the authority but he did not challenge that action of the authority. Curiously enough, he has now corne before this Court to challenge the re-employment of a person to the highest post of the company. So, the question of his being aggrieved as an individual does not arise."
16. The learned Additional Attorney General points out that the recommendation to the Hon'ble President by the LGED as alleged by the petitioners is an inter-ministerial communication and the petitioners cannot be aggrieved by the same. He further points out that all the procedures for the appointment of the Respondent No.6 are deemed to have been done in accordance with law and unless the petitioners can show a departure from the legal procedure they do not have a case.
17. Mr AF Hasan Ariff with Mr AM Aminuddin, the leamed Advocate appearing for the Respondent No.6 submits that the impugned Memo relates to the terms and conditions of service of the petitioners and their appropriate remedy would be before the Administrative Tribunal and in this respect he has drawn our attention to the case of Delowar Hossain vs Government of Bangladesh reported in 52 DLR (AD) 120. He further submits that the petitioners have not even completed the requisite period in their service i.e. 3 years as Additional Chief Engineer and 26 years as permanent gazetted officer which is required, to be appointed as Chief Engineer of LGED and, as such, the question of being aggrieved by the appointment of the Respondent No.6 does not arise.
18. All the learned Advocates for the Respondents have drawn our attention to the case of Mojibur Rahman vs Government of Ballgladesh reported in 44 DLR (AD) 111 (para 48) which clearly stated that the terms and conditions of service the appropriate forum is n the Administrative Tribunal and in the instant SI case the petitioners have no locus-standi to complain about the appointment of the Respondent No.6 for depriving them from being appointed to the said post or contrary to the law.
19. As against this, Mr Rokonuddin Mahmud, the learned Advocate for the petitioners has drawn our attention to the case of Mian Fazal Din vs The Lahore Improvement Trust reported in 21 DLR (SC) 225 where the judgment of Justice Kaikaus in the case of Montgomery Flour and General Mills Ltd. was approved by saying "a right to acquire or hold property, a right to carryon a profession, a right to move about freely, etc. are not rights in the strict sense because they do not cast any corresponding duties on any person. They are what writers on jurisprudence call "liberties". In wider sense these too are recognized as rights by jurisprudence and they can form the basis of a writ petition."
20. In the said decision it has been said that "the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty of franchise. "
21. The learned Advocate submits that all that he requires for certiorari is to show that he has a substantial interest in the subject matter. In the instant case the learned Advocate admits that this is not a public interest litigation but the petitioners do have sufficient interest in the matter and have the locus-standi to file the instant Writ Petition due to the illegal way in which the impugned order was passed and the file not being processed by the Ministry required by law. The learned Advocate further submits that in the Rule the petitioners have not claimed promotion but they have a legitimate expectation as well as a right to be considered for promotion which is not a bar to file an application under Article 102 of the Constitution.
22. Since the maintainability of the Rule has been challenged we want to address this matter first.
23. The petitioners are Additional Chief Engineers in the Department of LGED. They have impugned the appointment of the Respondent No.6 by the said Ministry. Article 102 of the Constitution clearly states that "(i) the High Court Division on the application of any person aggrieved can give directions or orders to any person or authority ........."
24. This means that petitioners filing an application under Article 102 before this Division must be aggrieved persons. In the old case of Ex parte Sidebotham reported in 4 Law Reports 1880 14 Chancery Division 458 it has been held that a "person aggrieved" must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which wrongfully deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something. It cannot, it is said mean a person "who is disappointed of a benefit which he might have received if some order had been made."
25. The petitioners neither represent a section of the public nor claim that any section of the public has been aggrieved by the impugned appointment. This is therefore not a Public Interest Litigation.
26. In the instant Writ Petition it has been stated in ground No. VI that "qualified candidates with requisite technical skills, such as the petitioners, are already available at LGED ready to replace the Respondent No.6 after his retirement and, as such, there is no scope for giving appointment to the respondent No.6 on contractual basis after his retirement to the derogation of the legitimate expectation of such qualified candidates, including the petitioners, for being considered for such appointment."
27. Ground No. VII states "the appointment of respondent No.6 under the impugned memo was without lawful authority and of no legal effect inasmuch that the petitioners, being Additional Chief Engineers at LGED, have a legitimate expectation to be considered for promotion to the post of Chief Engineer which is being breached by the decision taken under the impugned order."
.28. All persons in the service doing a job has a legitimate expectation for getting something better but mere expectation does not crate a legal right to something. In this particular case simply because the petitioners have/had mere legitimate expectation to be given promotion or even to be considered for promotion does not give them locus-standi to come to this Court under Article 102 of the Constitution. They cannot be called aggrieved persons for the purpose of Article 102. If however they have been deprived from being considered for promotion they may claim relief from the Administrative Tribunal as this remedy has been clearly provided in Article 117 of the Constitution. In Mujibur Rahman us the Government of Bangladesh reported in 44 DLR (AD) page 111 (para 48) it has been clearly stated that an aggrieved person wanting to claim any benefit in relation to his terms and conditions of service must seek relief from the Administrative Tribunal under Article 117 of the Constitution.
29. This has been affirmed even in 52 DLR (AD) 120 in the case of Delowar Hossain vs the Government of Bangladesh and others where it has been held that even in the case of fundamental rights the Administrative Tribunal is empowered to adjudicate matters. Here in the instant case even if legal right or even a fundamental right is infringed still the doors of the High Court Division is closed to the petitioners under Article 102 of the Constitution. They must seek their relief in the Administrative Tribunal.
30. Furthermore simply because the petitioners in the instant case did not challenge their own case of not being considered for promotion to the post of Chief Engineer but have challenged some other person's appointment does not make the Rule maintainable. What cannot be done directly cannot be done indirectly. Finally since the petitioners are not claiming that they are a class of the public or that due to the appointment of the Respondent No.6,  a section of the public is suffering a loss or is being aggrieved, this cannot be called a public interest litigation.
Thus since the Rule is not maintainable we do not wish to go into the merits of the case. Accordingly, this Rule is discharged without any order as to costs.
(Concluded)

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