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IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

(CIVIL APPELLATE JURISDICTION)

CIVIL PETITION NO.196 OF 2000

IN THE MATTER OF :

An application for leave to appeal

AND

IN THE MATTER OF :

1. The Secretary Ministry of land

representing Government of

Bangladesh,

Bangladesh, Secretariat, Dhaka.

…..Petitioner.

VERSUS

1. Nur Mohammad Abu Zafar,

son of late Abdul Malek

Kanungo and President

Bangladesh Kanungo Welfare

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Association, DLR Office.

Tejgaon

2. A.T.M. Mozibur Rahman,

Son of late Amjad Ali

Prodhahia and Vice President,

Bangladesh Kanungo Welfare

Association DLR Officer,

Tejgaon, Dhaka.

3. Md. Nasiruddin Bhuiyan

son of late Khaiz Ahmed,

Kanungo and Secretary

General, Bangladesh Kanungo

Welfare Association, Collectorate

Building, Dhaka.

4. Md. Shamsuddin,

Son of late Waliullah Pandit,

Kanungo and President Dhaka

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Unit Committee Bangladesh

Kannugo Welfare Association

DLR Office, Tajgaon, Dhaka.

5. Md. Jahangir Alam,

Son of Md. Jabed Ali Pathan,

Kanungo and Finance

Secretary Kannungo, Welfare

Association DLR Office,

Tajgaon, Dhaka.

…(Writ Petition) Respondents

6. The Joint Secretary (Admin)

and Chairman, Kanungo,
Appointment Committee,
Ministry of Land, Bangladesh
Secretarial, Ramna, Dhaka.

7. The Secretary,

Ministry of Finance

Bangladesh Secretariat,

Ramna, Dhaka.

8. The Secretary,
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Ministry of Establishment,

Govt. of Bangladesh,

Bangladesh Secretariat,

Ramna, Dhaka.

9. The Secretary,

Public Service Commission,

Old Airport Building, Tejgaon,

Dhaka.

…Proforma-Respondents

AND

IN THE MATTER OF

The Judgment and order dated

09.12.99 of the High Court

Division passed in Writ

Petition No.3924 of 1998

waking the Rule absolute.

To

Mr. Justice Latifur Rahman, the Chief Justice and his

Companion Justices of the said Hon’ble Court.

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The humble petition of the

petitioner most respectfully

SHEWETH;

1. That the above Civil Petition for Leave to appeal is

directed against the Judgment and order dated

9.12.99 of the High Court Division passed in Writ

Petition No.3924 of 1998 making the Rule absolute.

2. That Respondents 1 to 5 filed the said Writ Petition

No.3924 of 1998 before the High Court Division

disputing an advertisement Published in the Daily

Janakantha on 19.2.97 for recruitment of 106

Kanungos in the scale of Tk.1475-3170/- and also

the committee formed vide order dated 3.11.98 to

examine and scrutinize the applications received in

response to the above advertisement dated 19.2.97,

upon allegations, inter alia, hat they are Kanungos

and are also office bearers of Bangladesh Kanungo

Welfare Association; that in a meeting of the

National Land Requirement Council of the Ministry

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of land held on 30.12.89 it was decided that every

Upazilla shall have one Assistant Land Officer to be

appointed from those who are at present working as

Kanungos and that the said post of officer shall be

upgraded as class II (Gazetted) Post; that in a

meeting held under the Ministry of Land on 17.8.91

it was decided that the post of Kanungo be made

class II Gazetted Post without Changing their

names: that the Secretary, Ministry of Land then by

their letter dated 14.10.91 communicated the said

decision for upgrading the post of Kanungo to the

Secretary of Finance and the Secretary of

Establishment and sought their approval in the

matter; that the Secretary Ministry of Establishment

accorded their approval on 17.2.92 and the Ministry

of Finance by its letter dated 19.9.92 informed that

steps for sanction of their scale will be taken for

consideration; only after Gazette Notification

regarding up gradation of the post of Kanungos,

that by their letter dated 23.11.95 Ministry of

Establishment accorded approval for up gradation

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the post of Kanungo in the pay scale of Tk.2300-

4480/- under certain terms and conditions provided

Recruitment Rules are amended and then to

forward the same to Public service Commission in

appropriate manner; that the Ministry of Finance

also in a meeting decided that kanungos who are

eligible in the existing post shall be elevated to the

post of class II Gazetted Officer; that the Ministry of

Land then published on 17.7.97 a gazette

notification that Government had given consent to

upgrade the post of Kanungo to class II Gazetted

post in the scale of Tk.2300/- 4480/-; that after

publication of the said gazette notification Ministry

of Land on 24.7.97 wrote to the Secretary Ministry

of Establishment and Public Service Commission

Seeking course of instructions in the matter, that in

reply public Service Commission advised the

Ministry of Land by its letter dated 25.2.98 to

amend the recruitment Rules, obtain clearance from

Establishment Ministry and then apply to P.S.C. in

prescribed form for approval; that after Completion

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of the aforesaid formalities including publication of

the gazette notification dated 17.7.97 and the basis

of the advertisement made on 19.2.1997 for

recruitment for Kanungos in the scale of Tk.1475-

3150/- has lost its substratum; that the Ministry of

Land cannot form a 3-mamber committee for

scrutinizing the application, after about 2 years;

that the whole attempt is malafide and motivated

and hence the Writ Petition.

3. That your petitioner contested the said Rule by

filing an affidavit in Opposition denying the material

allegations and it was contended that the Writ

Petition has been filed in a representative character

and as such not maintainable and the respondents

No.1 to 5 has no locus standi to file and/or

maintain the Writ Petition; that the petitioners are

Government servants and they are as such required

to go to Administrative Tribunal; that the

respondents have no locus standi to file the Writ

Petition disputing the advertisement calling

application for appointment of 106 Kanungos;

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which do not concern them that the formation of the

committee to examine the applications received in

response to the above advertisement is in

accordance with law that the respondents cannot

seek any direction to do necessary and/or ancillary

thing relating to up gradation of Kanungos to Class

II Gazetted post as they are admittedly Government

servants and their relief if any lies before the

Administration Tribunal that pursuant to the

advertisement Tribunal that pursuant to the

advertisement 66,400 application were received by

your Petitioner accompanied by postal order/Bank

draft of Tk. 50/00 that a committee was therefore

formed to scrutinize the said applications that

proposal that was made in the council being a mere

proposal did not create any legal right in favour of

any one and not in favour of the respondent 1-5,

that the Ministry of Establishment on 17.2.92

agreed to up-gradation of the post to class 11

Gazetted post son condition that up gradation

would be limited to persons having completed 7

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years service on the recommendation of Ministry of

Land and further opined that the Ministry of

Establishment and Finance may take steps to

upgrade the pay scale, that Ministry of Finance by

letter dated 23.11.97 accorded consent to about

forwarding the same to Public Service Commission

that without completing the required formalities

mere declaration and/or publication giving

conditional consent by the Government cannot

confer any right for implementation there of that

Ministry of Establishment by their letter dated

8.12.96 gave consent for direct appointment of 136

Kanungos and on the basis thereof the recruitment

advertisement was Published and 66,400

applications were receive by because of a contempt

proceeding filed by 46-Ex-Mujibnagar Employees

before the High Court Division the recruitment was

stayed that in the mean time decision was taken to

upgrade the post which required opinion by Public

Service Commission that Public Service Commission

by its letter dated 22.2.98 stated clearly that before

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completion of all formalities the matter would not

come within its jurisdiction: that gazette notification

dated 17.7.97 was no finally approved by Ministry of

Finance that Establishment Ministry also did not

give required clearance that posts of 106 Kanungos

are being vacant for which Government is suffering

revenue loss and the Deputy Commissioners are

creating heavy Pressure that steps regarding

elevation of the post of Kanungos have not yet been

completed and therefore Rule Obtained by

respondents 1-5 must fail.

4. That respondent No.8 herein entered appearance

but did not file any affidavit in opposition. The

respondents 1 to 5 herein filed one affidavit in reply

reiterating the stating the statements made in the

Rule Petition.

5. That the High Court Division by its judgment and

order dated 9.12.99 was pleased to make the Rule

absolute
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6. That from the said decision of the High Court

Division your Petitioner begs to file this application

for leave to appeal on the following amongst other :-

REASONS

I. Because the subject matter of writ petition relates to

policy matters concerning upgrading the pay scale

of Kanungo which are matters relating to terms and

conditions of service being within the exclusive

jurisdiction of the Administrative Tribunal such

petition being therefore barred under Article 117.

II. Because the gazette notification of the decision of

the government about upgrading of the class and

the pay scale does not contain represent or reflect

any conferment of right not the same created any

legitimate right in favour of the petitioner and that

the advertisement for recruitment of Kanungo does

not affect the right of the petitioner in any adverse

manner and therefore the petitioners are not

aggrieved nor have mixes with the impugned

order.
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III. Because the direction as given by the High Court

Division intrudes into the area of policy making for

the recruitment of Kanungo or fixing and upgrading

of other class or the pay structure an area which is

within the domain of the present petitioner/and the

public service commission and the said direction

as given by the hi excludes other officers of the

government by modifying canceling/altering the

initial decision, not can it opt to restrict the benefit

of the pay scale if ultimately given only to those who

are otherwise duly qualified and the impugned

judgment truly create are Minibus grant of this

benefit for all kanungo which has been already

abandoned as a policy of the government and the

order of the High Court Division if implement would

fail to met equal justice and likely to create further

imbalance in the service multiplying thereby the

problem rather then solving.

IV. Because all formalities relating to up gradation of

the post of Kanungo to a class II gazetted post

having remained incomplete the High Court Division

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committed an error of law in making the Rule

absolute overlooking the said defect.

V. Because as questions of disputed facts are involved

and raised in the matter the High Court Division

fell into an error of law in not discharging the Rule

Wherefore it is prayed that this

Hon’ble Court will kindly grant the

petitioner leave to appeal and/or

pass such other orders as may

seem fit.

And the petitioner shall as in duty bound ever pray.

Drawn and filed by:

()
Advocate-on Record

Typed by M.K.U.