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Power of absorption is not absolutely discretionary

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21st-Apr-2018       
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High Court Division :
(Special Original Jurisdiction)
Mamnoon Rahman J
Shahidul Karim J
Monirul Islam (Md) and others ... Petitioners  (in writ petition No. 3451 of  2010)
vs
Bangladesh Jute Mills Corporation (BJMC) and others ..........
.................Respondents
Judgment     
February 16th, 2015
Constitution of Bangladesh, 1972
Article 102(2)
The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual.     (22)
Constitution of Bangladesh, 1972
Article 102(2)
It will be wholly unjust and unfair to reject a candidate for regularization on the ground that he did not possess the minimum educational qualifications and physical fitness at the time when the candidate was selected and after taking work from the same person, on the same post on which he is seeking regularization without any complaint for a long time... (22)
 Policy decision
Policy change cannot and should not affect the terms and conditions of those who had been appointed prior to the policy change. . ..... (21)
Rabia Bashri Irene vs Bangladesh Biman 52 DLR 308 ref.
Md. Jamal Hossain, Advocate - For the Petitioners.
Israt Jahan, DAG-For Respondents.
Judgment
Shahidul Karim J : All the above noted Rules are taken up together for hearing and disposal since the subject matter of the same and the law involved therein is identical and similar in nature, though the parties are different.
2. By this Rules the respondents were called upon to show cause as to why the circular published by the respondent No.4 in the Daily Prothom Alo on 18-3-2010 (Annexure-E) inviting applications for appointment in different vacant posts including those currently held by the petitioners without regularizing/ absorbing them in such vacant permanent posts as well as the decision taken vide Minute No. 240.00/09-10 and circulated under Memo No. we‡RGgwm/‡evm/1-62(240)/09/322 dated 25-10-2009 by the respondent No. 1 in us board meetings dated 12-10-2009 and 13-10-2009 (Annexure-"D") purportedly excluding the petitioners from being regularized/absorbed in the vacant permanent posts already held by them as temporary/daily basis workers and employees shall not be declared to have been issued without lawful authority and is of no legal effect and why the respondents shall not be directed to regularize/absorb the petitioners in the vacant permanent posts as workers and employees under different mills run by the respondent No.1 and/or such other or further order or orders passed as to this Court may seem fit and proper.
3. The common facts relevant for the purpose of disposal of the Rules, in short, are as under:
The petitioners were appointed as substitute worker/ daily basis worker ('No work, No pay')/employees and temporary teacher under the respondents for a limited period, but subsequently, being satisfied with their utmost sincerity, honesty, integrity and competence, the duration of their appointment were, extended from time to time as and when became necessary for the welfare of the respondents.
4. The respondent No. 1 adopted a comprehensive policy under Memo No. we‡RGgwm/cÖkvmb-2/†mU-Avc-123(Ask)/2000/1268  dated 19-9-2000 by a decision of its Board of Directors in respect of absorption and regularization of the employees including teachers working temporarily and daily basis under BJMC that they would be absorbed and regularized step by step. Pursuant to the said decision dated 199-2000, the petitioners applied to their respective authorities to be absorbed and regularized under the respondents. All on a sudden, on 12-10-2009 and 13-10-2009, the respondent No.1 took a decision/policy by its Board of Directors through Minute No. 240.00/09-10 regarding the absorption and regularization of the post of the petitioners' category affording an opportunity to only those who are under 30 years of age and thereby purportedly excluded the petitioners and also deviated from its earlier policy. The respondent No.1 earlier formed a committee and sought opinions and recommendations in respect of absorption at regularization of the daily basis workers/employees against the vacant posts. Later, the committee recommended for the regularization of the daily basis workers/employees who have not attained the age of 30 years at the time of regularization and also those who did not attain the age of 30 at the time of joining as daily basis teachers and staffs.
5. In pursuance of the decisions adopted on 12-10-2009 and 13-10-2009 by the respondent No.1, the respondent No.4 and other concerned respondents published the impugned circular. in the Daily Prothom Alo and Bangladesh Protidin on 18-03-2010 and 29-8-2013 respectively inviting applications from the intending candidates in the post of the petitioners and other vacant posts without absorbing and regularizing the petitioners in their respective posts. The petitioners were thus compelled and constrained to appear as fresh candidates. The past practice of the respondents shows that they have absorbed some daily basis temporary workers/teachers in the regular posts although they had crossed 30 years at the time of regularization.
6. Being aggrieved by and dissatisfied with the above impugned circulars, the petitioners have moved this Court and obtained the instant Rules.
7. No affidavit-in-opposition has been filled in Writ Petition Nos.3451 of 2010 & 9684 of 2014.
8. The respondent No. 4 of Writ Petition No. 4738 of 2004 has contested the Rule by filling an affidavit-in-opposition. The bone of contention of the concerned respondent is that due to the overage of petitioner Minara Khatun she could not be regularized in her post since she was then running 42 years. Furthermore, the petitioner cannot get the benefit of the decisions passed in Writ Petition Nos. 8907 of 2009 and 3187 of 2010 since the case of the petitioner do not get resemblance to that of the aforesaid Writ Petitions.
9. Heard Mr. Mohammad Jamal Hossain, learned Advocate appearing on behalf of the petitioners, Mr Md Jamal Uddin Ahmed, learned. Advocate representing respondent No.4 in Writ Petition No. 4738 of 2014 as well as Ms. Israt Jahan, the learned Deputy Attorney General and perused the Rule applications along with the connected Annexures and also considered the facts and' circumstances of the cases.
10. The moot question invited in the instant Rules is whether the prayer of absorption/ regularization of the petitioners in their respective vacant posts should be denied on the ground of overage after rendering services for a long time under the respondents concerned. There is no gainsaying that the power of absorption is discretionary, but at the same time, it is coupled with the duty not to act arbitrarily or at the whim or caprice of any individual. Admittedly, the petitioners have been serving under the respondents for a long period of time and by now; they have surpassed the age limit for being appointed in any Government service or any local body. Furthermore, the petitioners' service in their respective posts were to the satisfaction of the authority concerned and for that, though they were initially appointed on daily wage basis, the duration of their appointments were extended time to time as and when became necessary for the welfare of the respondents. More so, having served for a considerable period of time, the petitioners have; also gathered experience and skill in their respective posts. In such a scenario, it would be wholly unjust and unfair to deny absorption to the petitioners simply on the ground that they have already crossed the age limit on the date of absorption and that too, pursuant to a policy framed at a long distant time of their appointment. In such view of the matter, we find much substance in these Rules.
 (To be continued)
11. From a perusal of the materials on record it appears emphatically that the question of absorption arid regularization of teacher and other staffs' who were appointed temporarily under the respondents had come up for decision in Writ Petition No. 8907 of 2009 and 3187 of 2010 wherein the Rules issued were made absolute with a direction upon the respondent concerned to regularize/absorb the services of the petitioners against vacant permanent post. It would be profitable to refer to the relevant paragraphs from Writ Petition No. 8907 of 2009, which reads as under:
"We have examined the materials on record and also considered the submissions of the learned Advocate of the respective parties.
12. On examination of the paragraph No.3 of the supplementary affidavit dated 19-1-2011 wherein details of the petitioners including the date of birth have been furnished. We find that except the petitioner Nos. 2 and 3 were below 30 years of age on the date of appointment. From Annexure-H to the said affidavit, it appears that the petitioners are serving in different posts admittedly and, as such, the alleged circular fixing the age limit is not applicable for the petitioners.
13. On examination of the Annexure-'G' series, we find that the different department including the Military-Department has relaxed the age limit in case of the employees in service and admittedly the petitioners have been rendering the services without any stigma or allegation since 1999 and they gathered experience while serving in the department and in such circumstances, the experience of the petitioners cannot he ignored."
14. In the aforesaid case it has further been. observed as follows:
"On perusal of employment notice published by Military Land and Establishments and Bangladesh Tele-communication Regulatory Commission as contained in Annexure-G series, it appears that in the said Notifications the authorities relaxed the age limit in case of departmental candidates and similarly, Bangladesh Sugar and Food Industries Corporation took the decision to give appointment to departmental experienced employees up to age of 45 years and in such circumstances, the case of petitioner No.3 can be considered. The decisions referred to above in the facts and circumstances of the present case before us are applicable.
15. The respondents have not annexed the inquiry report of the committee but from the facts stated in the affidavit-in-opposition and the submissions of the learned Advocate, it transpires that the authorities did not take into consideration the date of appointment of the petitioners No.1 and 4-16 who were admittedly appointed below 30 years of age and since then they have been serving in the department and, as such, the alleged bar of 30 years will not be applicable to those petitioners as a departmental experienced employees in service and they may be treated as permanent employees of BJMC as per approval of the concerned Ministry dated 4-7-2000 (Annexue-B-1).
16. Upon overall reappraisal of the materials on· record, we find great deal of substance in the submissions of the learned advocate for the petitioners and thereby, the petitioners are entitled to be treated as permanent employees of BJMC as per approval of the concerned Ministry dated 4-7-2000 (Annexure-B-1).
17. In the result, the Rule is made absolute without any order as to cost.
18. The respondents are directed to treat the petitioners as permanent employees of BJMC as per approval of the concerned Ministry dated 4-7-2000."
19. Again in Writ Petition No. 3187 of 2010 it has been observed as underneath:
"We have considered the submissions of the learned Advocates of respective parties and perused the application, its annexures, supplementary affidavit filed by the petitioners and affidavit in opposition filed by the respondent No.6 and 8.
Admittedly, the petitioners started their career with the respondents prior to the change in policy relating to absorption.
It appears that the respondent No.2 took a decision that the employees working temporarily and on daily basis would be absorbed and regularized step by step. For felicity of reference the relevant portion of the decision is quoted below.

আলোচ্য বিষয় নং-২৪০.০৫/০৯-১০ঃ  দৈনিক ভিত্তিতে কর্মরত কর্মচারীদের নিয়মিতকরণ প্রসঙ্গে।
পেশকৃত কার্যপত্রে উল্লিখিত বিষয়টি সভায় বিস্তারিতভাবে পর্যালোচনা করা হয়্। বিজেএমসি পরিচালনা পর্ষদ সভার সিদ্ধান্ত মোতাবেক বিজেএমসিতে বর্তমানে কর্মরত ২৬ জন দৈনিক ভিত্তিক কর্মচারীদের দক্ষতা, অভিজ্ঞতা, শিক্ষাগত যোগ্যতা, বয়স ইত্যাদি এবং মৌখিক পরীক্ষা গ্রহণ করে তাদেরকে শূন্যপদে ¯'ায়ীকরণের বিষয়ে প্রতিবেদন দাখিল করার জন্য দন্ডাদেশ সূত্র নং সং¯'াপন/দৈনিক ভিত্তিক ৯৯ (অংশ-৪)/৫০৮,তারিখ ১৫-৭-২০০৯ এর মাধ্যমে ৩ সদ্য সমন্বয়ে একটি কমিটি গঠন করা হয়। কমিটি কর্তৃক গত ২-৮-২০০৯ তারিখে ২৬ জন দৈনিক ভিত্তিক কর্মচারীর ১৫ নম্বর এর মৌখিক পরীক্ষা গ্রহণ করা হয়। কমিটির প্রতিবেদনে নিম্নরূপ মতামত/সুপারিশ প্রদান করা হয় ঃ

মতামত ও সুপারিশ
১। ২৬ জন দৈনিক ভিত্তিক কর্মচারী যে যে পদে কর্মরত আছেন সকলেই স্ব-স্ব পদে দায়িত্ব পালনে যোগ্য।
২। ২৬ জন দৈনিক ভিত্তিক কর্মচারীর মধ্যে ২ জন কর্মচারীর বয়স, চাকুরী গ্রহণকালেই ৩০ বৎসর এর বেশি ছিল, তাদের বিষয়টি বিবেচনা করার সুযোগ নেই।
৩। যে সকল দৈনিক ভিত্তিক কর্মচারীর বয়স চাকুরী গ্রহণকালে ৩০ ও ৩২ (মুক্তিযোদ্ধার সন্তানের ক্ষেত্রে) বৎসর এর নীচে ছিল কিš' বর্তমানে নেই, বর্তমান অব¯'ায় তাদের বিষয়টি বিবেচনা করা সুযোগ নেই মর্মে প্রতীয়মান হলেও দীর্ঘ দিন বিজেএমসিতে কর্মরত থাকা অব¯'ায় চাকুরীর বয়স সীমা উত্তীর্ণ হয়ে গেছে বিধায় মানবিক দ"ষ্টিকোণ হতে বিচেনায় এনে তাদের সীমা উত্তীর্ণের তারিখের পূর্ব দিন হতে তাদেরকে নিয়মিত কারণের বিষয়টি বিবেচনায় আনা আনা যেতে পারে।
৪। ২০০৩ সনে পাট মন্ত্রণালয়ের অনুমোদন এর আলোকে, যে সকল দৈনিক ভিত্তিক কর্মচারীর বয়স বর্তমান ৩০ বৎসরের নীচে আছে এবং শূণ্য পদ আছে তাদের চাকুরী নিয়মিত করণের বিষয়টি বিবেচনা করা যেতে পারে।
কমিটির প্রদত্ত মতামত যে সুপারিশ সভায় বিস্তারিত ভাবে পর্যালোচনা করা হয়। বিজেএমসিতে কর্মরত যে সকল দৈনিক ভিত্তিক কর্মচারীর বয়স বর্তমানে ৩০ বৎসরের নীচে আছে এবং শূন্য পদ আছে তাদের চাকুরী নিয়মিত করণের বিষয়টি ২-৮-২০০৯ তারিখ হতে অনুমোদন করা যায় এবং বিজেএমসিতে কর্মরত যে সকল দৈনিক ভিত্তিক কর্মচারীদের বয়স বর্তমানে ৩০ বৎসরের ঊর্দ্ধে প্রচলিত বিধি বিধানের আলোকে তাদের চাকুরী নিয়মিতকরণের বিষয়টি বিবেচনার কোন সুযোগ নেই। এছাড়া মিলসমূহে বর্তমানে কর্মরত যে সকল দৈনিক ভিত্তিক কর্মচারীর বয়স ৩০ বৎসরের নীচে আছে এবং শূন্য পদ আছে বিধি মোতাবেক সাক্ষাতকার গ্রহণপূর্বক তাদের চাকুরী নিয়মিত করণের জন্য মিলসমূহকে পরামর্শ দেয়া হয়। এতদব্যতীত এখন হতে বিজেএমসি প্রধান কার্যালয়ের পূর্বানুমতি ব্যতিরেকে কোন মিলে কোন কর্মচারী ( যেমন এডহক, বদলী, দৈনিক ভিত্তিক, মৌসুম ভিত্তিক, সাময়িক নিয়োগ না দেয়ার জন্য মিলসমূহকে নির্দেশ প্রদান করা হয় বলে সভায় অভিমত ব্যক্ত করা হয়।

20. The petitioners have been working under the respondents on daily wage basis for the last several years and by this time they have crossed the age limit for being appointed in any Government service or any local body. The petitioners' service in the respective posts were to the utmost satisfaction of the authority concerned and any change in policy cannot and should not affect the terms and conditions of the service of the petitioners who have earlier been appointed when they were found to be suitable for the post in question.
21. As observed in Rabia Bashri Irene vs Bangladesh Biman 52 DLR 308, policy change cannot and should not affect the terms and conditions of those who had been appointed prior to the policy change.
22. The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual. There is nothing on record to indicate that for any reason whatsoever, the petitioners were not required or fit to be absorbed. It will be wholly unjust and unfair to reject a candidate for regularization on the ground that he did not possess the minimum educational qualifications and physical fitness at the time when the candidate was selected and after taking work from the same person on the same post on which he is seeking regularization without any complaint for a long time. It will be wholly unfair to hold him ineligible for regularization at such distance of time where the employees have worked for years together in the same post and have worked in such posts without any complaint, they should not be denied regularization on the ground that they do not possess requisite minimum educational qualifications prescribed for regular appointment on that post on the day they are considered for regularization.
23. At the time of delivery of judgment Mr. Md. Jamal Hossain, the learned Advocate for the petitioner filed a supplementary affidavit praying for discharging the Rule so far as it relates to the petitioners No. 1,2, 7, 9, 13,14 & 17 for non prosecution. as the matter has been settled out of Court between the parties. Consequently, the Rule is discharged for non prosecution so far as it relates to the petitioners 1,2,7,9, 13, 14 & 17.
24. In view of the discussions made in the body of the judgment, the rest of the petitioners have made out a case for regularization of their services.
25. Accordingly, the Rule is made absolute. The  respondents are directed to absorb the petitioners against vacant permanent posts as and when vacancy arises, subject to the condition that they do not otherwise disqualify.
26. There is however, no order as to cost."
27. Thus, it is apparent from the aforesaid discussions that the issue raised in the instant Rules has already been-settled by this division in more than one occasion. Since the matter in issue has finally been resolved by this division, we find no reason to deviate ourselves from the same as we are in full agreement with the verdict rendered in the above cases.
28. In the premises we find merit in these Rules and accordingly, they are made absolute.
29. The respondents are directed to absorb the petitioners against vacant permanent post as an when the Vacancy arises, subject to the condition that they do not otherwise disqualify.
However, there would be no order at to costs.

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