GOVERNMENT OF BANGLADESH Vs. SHAMSUDDIN AHMED

JUDGEMENT

(1.) These two appeals by leave by the respondent Government is from the Judgment and order dated 26-11-96, passed by the Administrative Appellate Tribunal in Appeal Nos. 55 and 58 of 1995, dismissing the appellant's appeal, 55 of 1995, and allowing in part the respondent's appeal, 58 of 1995, from the decision of the Administrative Tribunal dated 19.3.95 in A. T. Case No. 29 of 1994, allowing case.

(2.) The respondent stood first in the batch of 1965 E. P. C. S. (Ex) Class-1 and while serving as section officer in the Ministry of Health and Family Planning he was removed from service by a Memo. Dated 29-7-74 under P. O. No. 9 of 1972 which the challenged in title Suit No. 123 (a) of 1978 of the 1st Court of Subordinate Judge, Dhaka and obtained a decree declaring the said order as illegal. The government appellant's Title Appeal No. 230 of 1980 was dismissed on 11-12-85. The respondent was not allowed to resume his duties. He instituted a miscellaneous case in the trial court for a proceeding for contempt of court whereupon the Government asked him to withdraw the said case to enable the Government to implement the decree. Accordingly the respondent withdrew the contempt case and the Government reinstated him by an order dated 15-12-93 subject to two conditions, namely that he will not get arrear salary and other benefits from the date of removal to the date of rejoining and that the said period will be treated as extra ordinary leave without pay. The respondent joined on 23-12-93 and then filed a review petition to the Government seeking revocation of the aforesaid two conditions. The review petition was rejected by Memo, dated 13-1-94. The respondent was then posted to the Finance Division as Senior Assistant secretary which was equivalent to the position he was holding at the time of his removal. The respondent's batch mates numbering 25 were holding the post of Joint Secretary and the respondent being the first of his batch had no reason to be superseded but for the illegal order of removal of service, with revocation of the said order of removal the respondent ought to have been elevated to the position he would have occupied had he not been removed from service. The Rule of extra-ordinary leave has no manner of application in his case. During the period of his removal he was not engaged in any remunerative employment or any business of profit. He joined the Dhaka District Bar and then the Supreme Court Bar as an Advocate only to maintain a social status. He could not devote himself to legal practice. He has been suffering from heart problems for the last 7 years. He has no accountable income for the period. With these averments the respondent filed Administrative Tribunal Case No.29 of 1994 before the Administrative Tribunal, Dhaka praying for a direction to pay him all his arrear salary for the period from the date of his removal up to his rejoining and other benefits including promotion.

(3.) The Government appellant contested the case by filing a written objection contending that the respondent having remained out of office for about 20 years and also having engaged himself as a practicing Advocate from 22-3-75, the question of payment of arrear salary does not arise. Even otherwise, the conditions in the order of reinstatement are supported by Rules 72 (b), 34 and 195 of the B. S. R. Part-1. No defense was raised by the Government appellant in so far as the question of promotion is concerned.