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Article 102 (2) of the Constitution

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31st-Aug-2019       
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Casual Employees are Entitled to be Regularized under Revenue Set up
High Court Division
(Special Original Jurisdiction)
 Tariq ul Hakim J
Md Shohrowardi J
Nur Alam Chowkider (MD) Petitioners
vs
Bangladesh, represented by the Secretary, Ministry of Shipping, Bangladesh Dhaka and others  
............... Respondents
Judgment
February 5th, 2019
Constitution of Bangladesh, 1972
Article 102(2)
No provision has been made in the evsjv‡`k Af¨šÍixY †bŠ cwienb K‡c©v‡ik‡bi Kg©Pvix PvKzix cÖweavbgvjv, 1989 prohibiting absorption/ regularization of the service of casual employees in the revenue set up. Rather the respondents regularized/absorbed the service of some other employees of BIWTC in the revenue set up who were appointed along with the petitioners on 'no work no pay basis and created a legitimate expectation of the petitioners which has now become a vested right to be absorbed/regularized/confirmed their service in the revenue set-up. The respondents applied the pick and choose theory and made discrimination amongst the employees of BIWTC in regularizing/absorbing their service in the revenue set up. ...... (13)
Bangladesh Biman vs Zahangir Farazi, 65 DLR (AD) 117 and Government of Bangladesh vs Anisur Rahman, 18 MI.R (AD) 372 ref.
Yusuf Hossain Humayun with Md Motiur Rahaman. Advocates-For the Petitioners.
Saifur Rashid, Advocate-For the respondent Nos. 4 to 6.
Judgment
Md Shohrowardi J: This Rule Nisi was issued calling upon the respondents to show cause as to why job circular (wb‡qvM weÁwß) being No. 56/2017 dated 15-3-2017 published in the Daily New Nation (Annexure-C) for appointment in the post of Greaser without appointing the petitioners and inaction of the respondents in absorbing/ regularizing the service of the petitioners in regular establishment in the vacant posts of Greaser at Bangladesh Inland Water Transport Corporation (BIWTC) should not be declared to have been done without lawful authority and of no legal effect and as to why a direction should not be given upon the respondents to absorb/ regularize the service of the petitioners in regular establishment in the vacant posts of Greaser at Bangladesh Inland Water Transport Corporation (BIWTC) and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. The relevant facts for disposal of the Rule are that the petitioners were appointed as Greaser on different dates in the year 2014 to 2015 on "no work no pay" basis. The initial appointments were given for 85 (eighty-five) days and subsequently, respondent No. 6 extended the service of the petitioners issuing fresh appointment letters for another period of 85 (eighty-five) days and till today the petitioners are serving as Greaser. The petitioner No. 10 was initially appointed on 25-11-2014 for a period of 85 (eighty-five) days as Greaser on no work no pay' basis and on 24-2-2015 the respondent No. 6 issued a fresh appointment letter for 85(eighty-five) days with effect from 20-2-2015 to 15-5-2015. On 14-6-2015 respondent No. 6 issued another letter appointing him for 85 (eighty-five) with effect from 17-5-2015 to 9-8-2015. Lastly, respondent No.6 issued a fresh appointment letter on 7-10-2018 appointing petitioner No. 10 as Greaser for 85 (eighty-five) days. All other petitioners were also similarly appointed issuing several appointment letters for 85 (eighty-five) days. Now they are serving with full satisfaction of the respondents. The petitioners further stated that some employees of the BIWTC who were appointed along with the petitioners in the post of Greaser has been regularized/absorbed in the revenue set-up, but the respondents without taking any step for regularization/absorption of their service in the revenue set-up issued appointment notice on 15-3-2017 for appointment in the vacant post of Greaser. Thereafter, the petitioner filed the writ petition and obtained the Rule Nisi.
3. The petitioners filed a supplementary affidavit on 17-1-2019 stating that after issuance of the Rule, the petitioners filed applications for appointment in the vacant post of Greaser of BIWTC and the respondents also issued admit cards in favour of the petitioner Nos. 2, 5 to 17 and 19 for appearance in the viva voce examination and they also appeared in the viva voce examination but no admit card for viva voce examination was issued in favour of the petitioner Nos. 1, 3, 4 and 18 on the ground of age bar although in the appointment notice it has been mentioned that wefvMxq cÖv_x©‡`i †ejvq eqm wkw_j‡hvM¨| Finally the respondent did not appoint them in the vacant post.
4. The respondent Nos. 4, 5 and 6 filed affidavit-in-opposition stating that the petitioners were temporarily appointed in the post of Greaser on 'no work no pay' basis for 85 (eighty-five) days and there is no continuation in their service. The petitioners joined in their service accepting the terms and condition of the appointment letter wherein it has been specifically mentioned that GB wb‡qvM Av‡`‡ki mv‡_ weAvBwWweøDwUwm‡Z Avcbvi PvKzix wbqwgZ wb‡qv‡Mi †Kvb m¤úK© _vK‡e bv| It is further stated that in the evsjv‡`k Af¨šÍixY †bŠ cwienb K‡c©v‡ik‡bi Kg©Pvix PvKzix wewagvjv, 1989 there is no provision for regularization/absorption of the service of the casual employees in the revenue set-up. It is specifically stated that petitioner No.1 is absent in his office since 7-9-2018.
5. Mr Yusuf Hussain Humayun, the learned Advocate appearing along with Mr Motiur Rahaman on behalf of the petitioners submits that they are serving in the post of Greaser for last 5 (five) years with full satisfaction of the authority and in the meantime, they acquired experience and there is no stigma against them. He further submits that some other employees of the BlWTC who were appointed along with the petitioners in the post of Greaser have been regularized/ absorbed in the revenue set-up, but the respondent without absorbing/regularising the service of the petitioners issued a fresh appointment notice for appointment in the vacant post of Greaser which is discriminatory and violative of Article 27, 31 and 40 of the Constitution.
6. Mr Saifur Rashid, the learned Advocate appearing on behalf of the respondent Nos. 4 to 6 submit that the petitioners were appointed temporarily on "no work no pay" basis and accepting the terms and conditions of the appointment letters, they joined in their service. He also submits that there is no provision in the evsjv‡`k Af¨šÍixY †bŠ cwienb K‡c©v‡ik‡bi Kg©Pvix PvKzix cÖweavbgvjv, 1989 for regularization/absorption of the service of the casual employees in the revenue set-up.
7. Although the Ministry of Finance and the concern Ministry are made party in the writ petition and the notices have been served upon them but no affidavit-in-opposition has been filed on behalf of those respondents.
8. We have considered the submissions of the learned Advocates who appeared on behalf of the petitioners and the learned Advocate who appeared on behalf of the respondent Nos. 4 to 6.
9. The issue involves in the instant Rule as to whether casual employees who worked for a substantial period in the BIWTC without any stigma are entitled to be absorbed in the revenue set-up.
10. On perusal of the records it appears that after publishing the appointment notice dated 15-3-2017(Annexure-C), the petitioners filed applications for appointment in the vacant posts of Greaser and the petitioner Nos. 2, 5 to 17 and 19 also appeared in the viva voce examination but the respondents without appointing them in the permanent posts of Greaser finalized the appointment process appointing the other candidates in the vacant posts of Greaser. At the time of issuance of the Rule, this court directed the respondents to keep 19 (nineteen) posts of Greaser vacant under the BIWTC and the respondents also filed afftdavit-in-compliance stating that they kept 19 (nineteen) posts of Greaser reserve.
11. Nothing has been stated on behalf of the respondents to the effect that the petitioners were not appointed by the competent authority. Rather it is conceded that they were legally appointed and now serving with full satisfaction of the authority and there is no stigma against them. The case of the respondents is that the petitioners are casual employees and there is no provision in the evsjv‡`k Af¨šÍixY †bŠ cwienb K‡c©v‡ik‡bi Kg©Pvix PvKzix cÖweavbgvjv, 1989 for absorption of the service of the casual employees in the revenue set-up.  
 12. On perusal of the records, it appears that the petitioners were appointed in the year of 2014 to 2015 on 'no work no pay' basis against the permanent posts of Greaser and now serving with full satisfaction of the authority and there is no stigma against them. They also acquired skills and experience in their service. In the mean-time, some of the employees crossed the age bar for no, fault of them. Their service is permanent in nature and they served in the vacant posts.
13. As regards the submission made on behalf of the respondent Nos. 4 to 6 regarding the absence of provision in service rule for absorption we hold that no provision has been made in the evsjv‡`k Af¨šÍixY †bŠ cwienb K‡c©v‡ik‡bi Kg©Pvix PvKzix cÖweavbgvjv, 1989 prohibiting absorption/regularization of the service of casual employees in the revenue set up. Rather the respondents regularized/absorbed the service of some other employees of BIWTC in the revenue set up who were appointed along with the petitioners on 'no work no pay' basis and created a legitimate expectation of the petitioners which has now become a vested right to be absorbed/ regularized/ confirmed their service in the revenue set-up. The respondents applied the pick and choose theory and made discrimination amongst the employees of BlWTC in regularizing/ absorbing their service in the revenue set up.
14. In the case of Bangladesh Biman vs Zahangir Farazi, reported in 65 DLR (AD) 117 Para 31 judgment dated 7-8-2012 our Apex Court considered the case of casual workers of Bangladesh Biman Corporation, who were appointed on 'no work no pay' basis and held as under:
"Though the petitioners were appointed as casual workers on 'no work no pay' basis against the permanent posts initially for 90 days, because of their continuous services therein for 7/8 years without any gap and thus, they having completed the period of probation of three months as provided in Section 4(2) of the Act, 1965, acquired a right to be permanent in their respective posts, the High Court Division did not commit any illegality in making the Rues absolute."
15. In the case of Government of Bangladesh vs Anisur Rahman, reported in 18 MLR (AD) 372, Para 15 judgment dated 1-8-2013 again our Apex Court considered the case of casual workers who were appointed on 'no work no pay' basis and directed the writ-respondents in the following terms:
"(a) The leave-petitioners are directed to absorb the writ petitioners-respondents under the revenue budget subject to availability of same/equivalent posts under the Bureau of Manpower Employment and Training provided that they have the requisite qualification.
(b) In the event of non-availability of adequate vacant posts to absorb the writ-petitioners-respondents, the authority shall not make any recruitment in BMET in future until the writ-petitioners are absorbed provided that they have requisite qualification.
(c) The writ-petitioners-respondents are entitled to salaries and other benefits only for the period of rendition of their service."
16. In similar situation, in Writ Petition No. 6075 of 2018 in the case of Sharmin Jahan vs Government of The People's Republic of Bangladesh, this Division by judgment and order dated 2-10-2018 directed the respondents to absorb/ regularize/confirm the service of the petitioners of that writ petition in the permanent posts of "Flight Steward" of Biman Bangladesh Airlines Limited who were appointed on 'no work no pay' basis and observed as under:
"We further note that as a result of petitioners' service for a substantial time, the petitioners have crossed the age limit of 30 years and become ineligible to apply for any government jobs, despite being a part of the Government. There are yet vacant posts. By working for a substantial period of time and acquired skills and experience in the flight service, these petitioners can legitimately expect to be absorbed in the permanent post, when on similar footing. others have been absorbed."
17. It is noted that there is no denial of the fact that petitioner No. 1 is absent in his office since 7-9-2018.
18. It is conceded that there are sufficient vacant posts of Greaser for the appointment of the petitioners. Therefore we do not find any reason for not absorbing/regularizing the service of the petitioners in the revenue set-up. We hold that the petitioners can legitimately expect to be absorbed/ regularized in the revenue set-up as some other employees who were appointed along with the petitioners on 'no work no pay' basis has been absorbed/ regularized in the revenue set up.
19. In the above facts and circumstances of the case, we are of the view that ends of justice would be best served if we direct the respondents to absorb/regularize/confirm the service of the petitioners in the revenue set-up except the petitioner No.1.
20. The respondents are directed to absorb/ regularize/confirm the service of the petitioners in the permanent post of Greaser under the BIWTC except the petitioner No.1 within 90 (ninety) days from the date of receipt of the copy of the judgment subject to the condition that they are not otherwise disqualified.
21. With the above direction, the Rule is disposed of.

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