IN THE SUPREME COURT OF BANGLADESH
(HIGH COURT DIVISION)
Writ Petition No. 12567 of 2006
Judgment On: 20.05.2010
Hon'ble Judges/Coram:
A.F.M. Abdur Rahman and S.M. Emdadul Hoque, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Masud Rana Mohammad Hafiz, Advocate
For Respondents/Defendant: Mujibar Rahman, D.A.G.
Subject: Employment Laws
Relevant Section:
PUBLIC SERVANTS (RETIREMENT) act, 1974 - Section 4; PUBLIC SERVANTS (RETIREMENT) act, 1974 - Section 9; Primary SCHOOLS (TAKING OVER) act, 1974 - Section 3(2)
Acts/Rules/Orders:
Primary Schools (taking Over) act, 1974 - Section 3, Primary Schools (taking Over) act, 1974 - Section 3(1), Primary Schools (taking Over) act, 1974 - Section 3(2); Public Servants (retirement) act, 1974 - Section 3(2), Public Servants (retirement) act, 1974 - Section 4, Public Servants (retirement) act, 1974 - Section 9
Disposition:
Rule Made Absolute
Industry: Education
JUDGMENT
A.F.M. Abdur Rahman, J.
1. This writ petition involves a question of public importance as to whether a Primary school teacher being an employee of the Government is entitled to re-employment on the ground that he has regained health after he obtained an invalid retirement.
2. The petitioner Mohammad Ali, born on 25.01.1956, Joined the service of Primary School on 01.7.1976 as an Assistant Teacher in Khedapara Primary School and ultimately transferred to Hogladanga Government Primary, wherein he continued in service for 23 years in the said Government Primary School. Thereafter he became invalid due to some physical ailments for which he was compelled to apply to the authority, on 18.7.1999, for granting him invalid retirement. The authority constituted a Medical Board for considering his invalid retirement on the grounds of mental and physical invalidity and upon opinion by the Medical Board the authority being satisfied allowed the petitioner to obtain invalid retirement with effect from 19.8.1999. But fortunately the petitioner regained from his invalidity and became fit for employment as a Teacher in the Primary School which prompted him to apply to the authority for re-employment as a Teacher of the Primary School. But by the impugned letter dated 9.7.2003, the Director General Primary Education, respondent No. 2 refused his prayer on the ground that by the implication of Public Service Retirement act, 1974 the petitioner is not entitled to obtain re-employment and hence the writ petition.
3. The rule was duly served upon the respondents but although the learned Deputy Attorney General Mr. Mojibur Rahman entered appearance, yet he did not prefer any affidavit in opposition.
4. The learned Advocate Mr. Masud Rana Mohammad Hafiz appearing on behalf of the writ petitioner has taken this court through the provision of Section 3(2)(B) of the Primary School (Taking over) act, 1974 (Act No. VIII of 1974) and argued that the petitioner is a public servant and as such his employment is controlled by the Bangladesh Service Rules (BSR) Part I whereupon the petitioner was given the invalid retirement under the Provision of rule 321. But as the petitioner become fit, he is entitled to obtain re-employment under the provision of Rule 389 of the BSR Part I. The learned Advocate contends that the Public Service Retirement act, 1974 has no implication upon such rights of the petitioner as the same is not applicable in the case of the petitioner and as such the impugned order was issued on misconstruction of law.
5. The learned Deputy Attorney General Mr. Mujibar Rahman appearing on behalf of the Government while taken this court through the provision of Rule 321 and 389 of the BSR, Part I argued that although the writ petitioner was given invalid retirement under the provision of rule 321 of the BSR Part I, yet the writ petitioner is not entitled to reemployment under the provision of Rule 389 of BSR, Part I as the same is applicable only in the case of the Government officer and not Government employees, since the Rule has categorically specified that the same is applicable only to the officers. The learned Deputy Attorney General supported the contents of the impugned refusal order.
6. We have heard the learned Advocate and the Deputy Attorney General and perused the materials on record.
7. It appears that the Primary Schools, existed through the entire country in the year 1974, were taken over as Government institution by the statute named The Primary School (Taking over) act, 1974. Under the provision of Section 3(2)(b) of that statute all the teachers engaged in the employment of the Primary School became the Government employees. The Provision of Section 3 of the Primary School (Taking over) act, 1974 reads as follows:
THE Primary SCHOOL (TAKING OVER) act, 1974
"Section 3(1) Notwithstanding anything contained in any other law, rule, regulation or bye-law for the time being in force or in any contract or agreement, or in any deed or other instrument, the Government may be notification in the official Gazette, take over any Primary school on such date as may be specified in the notification.
(2) On the date specified in the notification under sub-section (1)-
(a) the Primary school and all its assets and property, including lands, buildings and funds and all other rights and interests in, or arising out of, such property, and all records and other documents of whatever nature relating thereto, shall stand transferred to, and vested in the Government;
(b) all teachers of the Primary school shall become employees of the government and shall hold their service under the Government on such terms and conditions as the Government may determine; and
(c) all committees or authorities managing and administering the affairs of the Primary school shall cease to function" (under lining is for emphasis)
8. Since the Government subsequently gazette notified such taking over of the Primary Schools, therefore, it appears, that the petitioner become a government employee and as such the service of the petitioner is now controlled by the provision of Bangladesh Service Rules, (BSR) Part 1, Since Rule 2(a) of the BSR, Part 1 included the petitioner's service under the said Rules which reads as follows:
BANGLADESH SERVICE RULES (BSR) PART I
Rule 2. Subject to the provisions of the Constitution and except where it is otherwise expressed or implied, these rules apply to all members of services and holders of posts whose conditions of service the Government of East Pakistan are competent to prescribe, subject as aforesaid they also apply to-
(a) (i) any person for whose appointment and conditions special provisions is made by or under any law for the time being in force,
(ii) any person in respect of whose service pay and allowances or pension or any of them special provisions has been made by an agreement made with him-
In respect of any matter not covered by the previsions of such law or agreement;
(b) ...................
9. Admittedly the petitioner obtained invalid pension under the Provision of Rule 321 of the BSR Part I which runs as follows:
"Bangladesh service Rules (BSR) Part I Rule 321. An invalid pension is awarded on his retirement from the public service to an officer who by bodily or mortal infirmity is permanently incapacitated for the public service, or for the particular branch of it to which he belongs."
10. The Provision of Rule 389 of BSR Part I deals with the matter of re-employment of a Government Officer who obtained invalid retirement which runs as follows:
Bangladesh Service Rules (BSR) Part I
"Rule 389. There is no bar to the re-employment of an officer who has regained health after obtaining invalid pension, or if an officer is invalided as being incapacitated for employment in a particular branch of the service, to his re-employment in some other branch of the service. The rules in such a case as to refunding gratuity, drawing pension, and counting service, are the same as in the case of re-employment after compensation pension."
11. From the impugned letter it appears that the prayer of the petitioner for re-employment was refused and the petitioner is informed in the following manner:
12. We have examined the provision of Public Service Retirement act, 1974 (Act XII of 1974) which deals in Section 4 only with the general retirement provision along with the Provision of Section 9 for optional retirement of the Government employees from the service. Neither there is any provision in the said act nor in the BSR part I about invalid retirement. Further there is no iota of any specific provision within the said act about the repeal of the Provision of Rules 389 of the BSR Part I excepting the Provision of Section 3(2) which provides that all inconsistent law or rules shall be ineffective. But the provision of Rule 389 of BSR Part I is not inconsistent with the provision of the said act, as such it appears that there is no basis in opining that after the promulgation of Public Servant Retirement act, 1974, Rule 389 of the BSR, Part I, has lost its implication.
13. So far the argument of the learned Deputy Attorney General is concerned it is true, that the Provision of Rule 389 of the BSR Part I mentioned that it applies to officers, but what the learned Deputy Attorney General did notice that the term 'officer' has neither been defined in BSR part I nor the term employee has been defined on the said rule. Rather this court finds that the rule 321 of the BSR Part I, upon which the petitioner was allowed the invalid pension contains the term 'officer' in the following manner:
"321. An invalid pension is awarded, on his retirement from the public service to an officer who by bodily or mortal infirmity is permanently incapacitated for the public service, or for the particular branch of it to which he belongs."
14. It appears that petitioner being a Primary School teacher has been treated as officer in order to allow him invalid pension and as such the respondent, cannot be allowed now to claim that rule 389 of the BSR Part I is not applicable to the petitioner as he is not an officer when the question of his re-employment surfaced. The respondents will be estopped from such claiming on the principle of Constructive Estoppel which barred a pension from denying to act again in the same manner as he had acted in past. As the petitioner was allowed the benefit under BSR Part I for the purpose of allowing invalid pension, he is also entitled to claim the re-employment under the same rule if he is otherwise capable to claim. Therefore, the objection of the learned Deputy Attorney General falls flat.
15. In view of such Provision this Court finds that the provision of Rule 389 of the BSR (Part I) is applicable equally to the petitioner as Government employee subject to qualification as made thereunder. Therefore, the submission of the learned Deputy Attorney General in this count fails.
16. Therefore, the Rule succeeds.
17. Accordingly, the Rule is made absolute, however, without any order as to costs.
18. The petitioner is entitled to re-employment as a Primary Teacher under the provision of rule 389 of the BSR, Part I, till he attains the age of normal retirement, subject to return of invalid pension amount he received, if any, after obtaining the invalid retirement.
19. The Respondents are directed to re-employ the petitioner within 30 (thirty) days from the date of receipt of a certified copy of this judgment.
20. Let a copy of the judgment be sent to the respondent No. 1 for their future guidance.
S.M. Emdadul Hoque, J.
I agree.
Reference: 7LG(2010)HCD317 and taken from this 7LG
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