The New Nation - Internet Edition

High Court Division

(Special Original Jurisdiction)

SM Hossain J Dr Md Shahidul Islam

Farid AhmedJ ---Petitioner

vs

Judgment April 27th, 2008 Government of Bangladesh and ors. Respondents

Constitution of Bangladesh, 1972 Article 102(2)(a)(ii)

No affidavit-in-opposition-Statements made in writ petition should be deemed to be true-No order passed on the prayer for lien the petitioner shall be deemed to have resigned from his post as soon as he has tendered resignation.

It appears that on the date of issuance of the Rule Nisi, the High Court Division directed the petitioner to serve notices upon the respondents by a special messenger of the Court at his own cost. Accordingly, notices were served upon all the respondents including the Government of Bangladesh represented by the Secretary. Ministry of Health and Family Welfare. But the Secretary, Ministry of Health and Family Welfare did not enter appearance' by filing affidavit-in-opposition. Therefore, the statements made in the Writ Petition should be deemed to be true. The high Division cannot wait for indefinite period to know the stand of the Ministry of Health and Family Welfare, exacerbating 'the miseries of the petitioner. The petitioner had no hand in delaying the matter for obtaining lien or an order accepting his resignation from service. In the background of the facts, it appears that the petitioner is a victim of circumstances. Since the Ministry did not pass any order on the petitioner's prayer for lien, he shall be deemed to have resigned from his post as soon as he tendered resignation on 17-10-2005. As the petitioner shall be deemed to have resigned, on 17-10-2005, the impugned Annexure relieving the petitioner' from service should be declared to have been issued without lawful authority. t.. (11)

TH Khan with Md Afzal H Khan, Advocate-For the Petitioner.

Saidur Rahman, Advocate-For Respondent Nos. 3 to 6.

Razik-al-Jalil, Deputy Attorney-General-For Respondent No.1

Judgment

SM Hossam J: In this application under Article 102 of the Constitution of the People's Republic 'of Bangladesh, a Rule Nisi was issued calling upon the respondents to show cause as to why the insurance of the impugned letter under Memo No. BSMMU/2007/7954 dated 6-12-2007 (Annexure-P(1) to the Writ Petition) issued under the signature of respondent No.6 shall not be declared to have been made without lawful authority.

2. The facts leading to the issuance of the Rule, in brief, are: After obtaining his Bachelor of Medicine and Bachelor of Surgery (MBBS) degree, the petitioner joined the Niamatpur Thana Health Complex in Naogaon in 1991 as a medical officer. Prior to that, the petitioner passed the BCS examination. He obtained a diploma in medical radiotherapy (DMRT) in 1993.

After that, he obtained PhD from Gunma University, Japan in 2001. He served as the Registrar and later as Assistant Professor in different places under the Ministry of Health and Family Welfare. Attracted by the advertisement of Bangabandhu Sheikh Mujib Medical University (BSMMU) published in 'The Daily Inqilab' on 25-6-2006, the petitioner applied for the post of Associate Professor through proper channel. At the meeting of the selected committee held on 28-8-2003 and according to the recommendation and approval of the authorities concerned, the petitioner received the letter of appointment on 10-9-2003 under the signature of the Registrar of BSMMU. On 24-9-2003, the Principal of Dhaka Medical College forwarded the application for lien to the Director General of Health by a memo dated 28-9-2003. The petitioner joined the BSMMU on 6-10-2003 as an Associate Professor of Oncology. The application praying for lien was forwarded to the Secretary, Ministry of Health and Family Welfare by the Directorate of Health by a memo dated 21-10-2003.

The joining letter of the petitioner was provisionally accepted by a memo dated 27-10-2003 subject to the submission of the lien granting order. Failing to obtain the order of lien, the petitioner submitted a letter of resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2005. The Directorate of Health by a memo dated 5-12-2005 gave clearance, forwarding the papers along with the letter of resignation to the Secretary, Ministry of Health and Family Welfare. By a memo dated 5-1-2006, the Ministry asked the Directorate to furnish some papers regarding the petitioner. Since no further development took place, the petitioner submitted an application to the Secretary, Ministry of Health and Family Welfare on 10-9-2006 along with all necessary papers as desired by the Ministry by the letter dated 5-1-2006.

The Directorate of Health again wrote a letter to the Ministry on 18-10-2006 expressing the consent of the Director General retarding the resignation of the petitioner. The Director General of Health, who is the President of the Evaluation committee of BSMMU by a letter dated 13-8-2007 asked the petitioner to submit service details and lien granting order. By a memo dated 6-9-2007 the Ministry asked for a clarification of the petitioner seeking permission for acceptance of his letter of resignation from service with retrospective effect. By a letter dated 29-9-2007 the petitioner furnished clarification.

(To be continued)

On 11-11-2007, respondent No. 6 issued a notice to the petitioner for showing cause within three working days as to why he should not be relieved form service of the BSMMU for working without submitting an order of resignation prior to joining. By an application dated 18-11-2007, the petitioner prayed for some time to obtain the release order from Government. In spite of that, the petitioner was illegally relieved from service by the letter dated 6-12-2007.

3. Challenging the order relieving him from service, the petitioner obtained this Rule Nisi from this Court.

4. The case of respondent Nos, 3 to 6, in short, is that the BSMMU authority followed the University Act, 1998, Ordinance, Rules, etc. for the appointment and the relieving of the petitioner from service who completely failed to meet condition No. 2 of his letter of appointment in spite of several opportunities given to him to submit order releasing him from Government service. The BSMMU authority provisionally accepted the joining letter but because of utter failure of the petitioner to submit the release order from Government service, the authority had no other alternative beyond the fulfillment of the condition No.2 of the letter of appointment.

5. Mr TH Khan, learned Advocate for the petitioner, submits that the petitioner applied for two years lien to the Government through proper channel to join his post and the application for lien was pending for approval of the Government and that in spite of his best effort, he could not obtain release order for no fault of his and the refore, he cannot be penalised. The learned Advocate further submits that when the petitioner failed to obtain any reply to his prayer for lien, he tendered resignation from service on 17-10-2005 to be effective from the 'date'-of his applying for lien and that no order was passed on the letter of resignation submitted by him through proper channel. He further submits that there are instances where lien was given to some of the candidates. He lastly submits that the University Authority should have taken the view that as soon as the. petitioner tendered letter of resignations he was no longer in Government service.

6. Mr Md Saidur Rahman, learned Advocate appearing on behalf of respondent Nos. 3-6, on the other hand, submits that the BSMMU authority had no other alternative but to enforce clause 2 of the letter of appointment as the petitioner failed to submit the order according lien or accepting resignation from service before relieving him from service by the impugned memo. He further submits that the Government should explain why no such order was passed. He then submits that unless the stand of the Ministry of Health is known in respect of the prayer of the petitioner for lien or for resignation from service made to the concerned authority, this matter should not be disposed of. He lastly submits that the University Authority had no fault at all in relieving the petitioner from service.

7. We have perused the Writ Petition, its annexure, the affidavit-in-opposition and its annexures. Admittedly, the petitioner was selected by the Selection Committee on 28-8-2003 and as per the recommendation and approval of the concerned authorities, the petitioner received letter of appointment on 10-9-2003 as evident in Annexure' C to the Writ Petition. Annexure-'D' revealed that the petitioner prayed for two years lien to the Secretary, Ministry of Health and Family Welfare though proper channel on 24-9-2003 to join BSMMU. Annexure-'E' to the Writ Petition shows that the Principal of Dhaka Medical College forwarded the application for lien to the Director General of Health by memo dated 28-9-2003. On 6-10-2003 the petitioner, however, joined as Associate Professor of Oncology in BSMMU as evident in Annexure-'F' to the Writ Petition. Record shows that the Ministry of Health and Family Welfare sat on the prayer for lien of the petitioner without passing any order whatsoever. Since the petitioner failed to obtain any order of lien, he 'submitted a letter of resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2005. Even then no final order was passed on the letter tendering resignation. Ultimately, the University Authority relieved him from service on 6-12-2007 for not complying with clause. 2 of his letter of appointment.

8. Annexure-'R', the letter of the Registrar, Chittagong University shows that lien was given to Md Siddiqur Rahman Bhuiyan for one year to join BSMMU. Annuxure-'R (2)', the notification reveals that||the resignation tendered by Dr Nurun Nahar Khanam was accepted by the Ministry of Health and Family Welfare, on 6-4-2009 pursuant to an application dated 25-9-2004. Therefore, there are instances where the Government accepted resignation.

9. In the instant case, the Ministry sat over the prayer for lien of the petitioner for an indefinite period. The Ministry could have intimated the petitioner that his prayer for lien was not accepted. Since no order was passed on the prayer for lien, the petitioner had to tender resignation to the Secretary, Ministry of Health and Family Welfare on 17-10-2003. The Ministry, however, did not pass any final order either accepting or rejecting the prayer for resignation tendered by the petitioner. Consequently, it can be concluded that the inaction of the Ministry was the product of individual discrimination. In such state of affairs, the petitioner has nothing to do in this regard because of dismal failure of the Ministry, the petitioner cannot be penalised.

10. The University Authority had to wait for a long time because the petitioner could neither obtain an order according lien or accepting his resignation from service. Consequently, the University relieved the petitioner from service because of non-compliance of clause 2 of the letter of appointment. It is contended on behalf of the respondent Nos. 3 to 6 that until the position of the Ministry of Health and Family Welfare is known, this matter should not be disposed of.

11. It appears that on the date of issuance of the Rule Nisi, this Division directed the petitioner to serve notices upon the respondents by a special messenger of the Court at his own cost. Accordingly, notices were served upon all the respondents including the Government of Bangladesh represented by the Secretary Ministry of Health and Family Welfare. But the Secretary, Ministry of Health and Family Welfare did not enter appearance by filling affidavit-in-opposition. Therefore, the statements made in the Writ Petition should be deemed to be true. This Court cannot wait for indefinite period to know the stand of the Ministry of Health and Family Welfare, exacerbating the miseries of the petitioner. We have already found that the petitioner had no hand in delaying the matter for obtaining lien or an order accepting his resignation from service. In the background of the facts, it appears that the petition is a victim of circumstances. We are of the view that since the Ministry did not pass any order on the petitioner's prayer for lien, he shall be deemed to have resigned his post as soon as he tendered resignation on 17-10-2005. As the petitioner shall be deemed to have resigned on 17-10-2005, the impugned Annexure relieving the petitioner from service should be declared to have been issued without lawful authority.

In the result, the Rule is made absolute and the impugned Annexure-P(1) (the memo dated 6-12-2007) is declared to have been issued without lawful authority having no legal effect. The respondents are directed to allow the petitioner to joint his post. There is no order as to cost.