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Discrimination in paying financial benefits illegal

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21st-Apr-2018       
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High Court Division :
(Special Original Jurisdiction)
Md Ashfaqul Islam J
Ashish Ranjan Das J
Abdur Rahman and others ..........Petitioners
    vs
Government of the People's Republic of Bangladesh and others..........Respondents
Judgment
November 8th, 2017
Constitution of Bangladesh, 1972
Article 27
Government cannot and should not discriminate among the employees falling on the same footing in paying financial benefits.
All the government appeals preferred in the Sontosh Kumar case were allowed except two appeals which were dismissed by the Appellate Division upholding the decisions of the High Court Division on the ground of discrimination. In those writ petitions High Court Division while making the Rule absolute found a palpable discrimination that was done in respect of the Bench, Officers of the High Court Division with the other officers of the same rank of the Appellate Division. The question of maintainability has been raised relying on the latest decision of Bangladesh vs Sontosh Kumar Saha reported in 21 BLC (AD) 94 and the learned Assistant Attorney-General in this context submits that the instant writ petition owing to the said decision is not maintainable and should be referred out right to the Administrative Tribunal for decision. We don't agree with the submission of the learned Assistant Attorney-General.     (5 & 6)
Constitution of Bangladesh, 1972
Article 27
If a portion of Head Teachers of Government Primary Schools falling in the category at per with the petitioners have been already awarded further, move specifically, repeated time scales after upgradation of the post of Head Teachers, in that event patently these petitioners are also entitled to get the same financial benefits. . ..... (5)
Bangladesh vs Sontosh Kumar Saha, 21 BLC (AD) 94 ref.
BM Elias with Md Ataur Rahman, Advocates-For the Petitioners.
Al Amin Sarkar, DAG with MM Masud Rumi, AAG with Md Ashaque Momin, AAG-For the Respondents.
Judgment
Ashish Ranjan Das J : Rule Nisi under Article 102 of the Constitution of the People's Republic of Bangladesh at the instance of these 190 (one hundred ninety) petitioners all Head Masters of different Government Primary Schools running under the Ministry of Primary and Mass Education was issued on the following terms.
"Let a Rule Nisi calling upon the respondents to show cause as to why the fixation of petitioners' upgraded pay scales, which have been upgraded by the notification vide Memorandum No. 38.008.035.00.00.010.2013-111 dated 9-3-2014 (Annexure-A) without allowing them any benefits of time scales should not be decaled to be violative of fundamental rights guaranteed under Articles 27 and 29 read with Article 44(1) of the Constitution and why the respondents should not be directed to re-fix the petitioners' upgraded pay scales by allowing them all the benefits of time scales up to 14-12-2015 counting their period of service from the date of their joining in the post of Head Teacher with all arrears from 9-3-2014 and onwards and to remove all kinds of disparity and discrimination in pay and/or such other or further order or orders passed as to this Court may seem fit and proper should not be passed."
2. Short facts relevant for the purpose that could be gathered from the file are that all these petitioners have been working as Head Teachers of different Government Primary Schools managed under the Ministry of Primary and Mass Education. Some of them have been directly recruited while the others have been promoted to the post of Head Teacher of the respective Government Primary School. Besides some of them have been trained while the remaining ones have been non trained. The status of the Head Teacher of the Government Primary Schools used to fall in Class 3 that was upgraded to non gazetted class 2 public servants by a government notification dated 9-3-2014 (Annexure-A) and accordingly the pay scale of the Head Teachers were upgraded to Taka 6,400 and Taka 5,900 for the trained and non trained Head Teachers respectively. According to the Rules and practice government employees falling in Class 2 and Class 3 are entitled to get time scales at the completion of the satisfactory of service of 8, 12, 15 years respectively. But although the petitioners have been promoted, they have not been granted the time scales to which these petitioners are entitled. On the other hand, a number of Head Teachers of other Government Primary Schools falling in the same status with these petitioners have been allowed time scales on different dates that could be evidenced by annexure-D-1-D-10 series. The petitioners have made repeated representations to the authorities in order to get such a discrimination eradicated, but of no avail. Hence is this Rule Nisi.
3. The Respondent No.2 the Secretary, Ministry of Finance Division of the Government contested the Rule by filing an affidavit in opposition.
The gist of their case is that admittedly the rank, pay scale and status of the Head Teachers of the Government Primary Schools including those of these petitioners have been upgraded from Class-3 to Class-2 as non gazetted government employees that could be admittedly evidenced by Annexure-A of the writ petition and they have been enjoying all the financial benefits admissible as are governed by the Rules. In one tier government employees like the petitioners are entitled to get 3 time scales after completion of satisfactory service of 8, 12, and 15 years respectively and not more than that. Since while serving in Class 3 as head teachers the petitioners have already drew those financial benefits, under law and logic they are no more entitled to get the same financial benefits repeatedly. If it is done it will be a breach of the rule and disturb the equilibrium in the financial management of the government in various departments.
The petitioners used to be head teachers of Government Primary Schools and drew time scales as per the Rule stated above. They have been still head teachers, however their status has been upgraded from Class 3 to Class 2, that of course, does not entitle to a repeated or double financial benefit.
4. We have gone through the materials and heard valuable arguments advanced by the learned lawyers for the respective parties. It remained undenied that the status and pay of these Head Teachers of various Government Primary Schools were up graded from Class-3 to Class 2 non gazette employees and they are entitled to get financial benefits as are admissible in law. Now the only question in dispute, as Mr Md Ataur Rahman, the learned advocate for the petitioners raised and took us through, is that according to the application and Annexure-D-l to D-10 series few Head Teachers of other Government Primary Schools have been once again awarded time scales after having been upgraded in rank.
5. Mr Al Amin Sarkar the learned Deputy Attorney-General arguing on behalf of the Ministry of Finance submitted that it is most unlikely that there will be any such discrimination. It is curious to note that in the affidavit in opposition the allegation of discrimination in granting time scale has not been categorically denied or otherwise explained. Further, we see that in all other matters the case of the petitioners has not been controverted in the affidavit in opposition. Now the only question remains is whether the respondents are making any discrimination in granting time scales to the Head Teachers of Government Primary Schools including these petitioners, as is raised in paragraph no. 164 of the application supported by Annexure-D-1 to D-10 series. Thus, we are inclined to hold that the government cannot and should not discriminate among the employees falling on the same footing in paying financial benefits. If a portion of Head Teachers of Government Primary Schools falling in the category at per with the petitioners have been already awarded further, move specifically, repeated time scales after upgradation of the post of Head Teachers, in that event patently these petitioners, are also entitled to get the same financial benefits. The' respondents are directed and rather expected to look into the matter and bring back parity and discipline. Such a direction was felt necessary since the issue of discrimination raised in paragraph no. 164 of the application has not been specifically denied or explained in the affidavit in opposition. Accordingly the Rule is disposed of with the observation and direction.
Md Ashfaqul Islam J : While agreeing with the substantive, judgment delivered by my brother, I would like to add a few words of my own to clarify a preliminary question raised by the Assistant Attorney-General on the maintainability of the writ petition as not being maintainable. The question of maintainability has been raised relying on the latest decision of Bangladesh vs Sontosh Kumar Saha reported in 21 BLC (AD) 94 and the learned Assistant Attorney-General in this context submits that the instant writ petition owing to the said decision is not maintainable and should be referred out right to the Administrative Tribunal for division. We don't agree with the said submission of the learned Assistant Attorney-General. All the government appeals preferred in the Sontosh Kumar case were allowed except two appeals (Civil Petition for Leave to Appeal Nos. 644 and 645 of 2015) which were dismissed by the Hon'ble Appellate Division upholding the decisions of the High Court Division on the ground of discrimination. In those writ petitions High Court Division while making the Rule absolute found a palpable discrimination that was done in respect of the Bench Officers of the High Court Division of the Supreme Court with the other Officers of the same rank of the Appellate division. In Sontosh Kumar's case upholding those decisions of the High Court our Appellate Division came down heavily maintaining as under:-
"These petitions are quite distinguishable from the other cases. The writ petitioners invoked their fundamental rights as they were discriminated by the same authority and they are working in the same court. More so, the works of Bench Readers of the Appellate Division and Assistant Bench Officers of the High Court Division are completely different.
The Bench Readers are appointed from among the Bench Officers/Assistant Bench Officers of the High Court Division and if the Bench Officers get status higher than them, certainly they will be discriminated. It is to be noted that the working hours of these officers is from 9-00 am to 5-00 pm but they used to work till 8/9 pm every day. In respect of Assistant Bench Officers, the very nature of their job is painstaking. They work almost 12/14 hours a day and even on holidays because they are attached to the Judges. During the vacation as well, they cannot enjoy the holidays as they remain busy with finalization of judgments. The High Court Division has rightly exercised its jurisdiction and we find no infirmity to interfere with the judgment".
7. The instant case can also be viewed as a wrong done in furtherance of an executive fiat which is discriminatory in nature and as such the interference under Article 102 of the Constitution is well justified. The petitioners certainly have been discriminated as regard their claims which they are entitled to get.
Office is directed to communicate the order at once.

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