Appellate Division (Civil) :
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
ABM Nasrul Aziz…………Petitioner
vs
Crescent Jute Mills Company Limited, represented by its General Manager and others… Respondents
Judgment
September 15th, 2014
Constitution of Bangladesh, 1972
Article 102(2)
The petitioner receive benefits and salary up to the age of 60 years as a teacher not as an employee of BJMC and, therefore, there will not be any deduction in respect of salary received as a teacher up to the age of 60 years. …….(9)
ABM Bayezid, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner.
Tufailur Rahman. Senior Advocate, instructed by Chowdhury Md Zahangir, Advocate-on-Record-For Respondent No. 1.
None Represented -Respondent Nos. 2-4.
Judgment
Md Imman Ali J : This civil petition for leave to appeal is directed against the judgement and order dated 8-1-2012 passed by a Division Bench of the High Court Division in Writ Petition No. 7040 of 2010 discharging the Rule.
2. The facts of the instant case, in brief, are as follows:
On 10-10-1978 the petitioner on getting appointment as Assistant Teacher of the Crescent High School, joined in the said post. On 9-1-2002 the petitioner was served a letter of retirement tinder Memo No. BJM/ Administration/21/4509 dated 12-1-2002 stating that the authority had decided to retire all the teachers at their age of 57 years instead of 60 years. Accordingly, the petitioner was directed to refund the salary which he got after attaining the age of 57 years. Challenging the said letter, the petitioner filed Writ Petition No. 2366 of 2002 before the High Court Division and obtained Rule. The Rule in the said Writ petition was disposed of with an observation that since the petitioner retired from his service, he is entitled to get retirement benefit up to his age of 60 years in accordance with law.
Before passing the said order the petitioner attained the age of 60 years. Thereafter the respondents by the impugned letter dated 17-9-2009 informed the petitioner that he would get gratuity as per provision of Regulations 28 and 29 of the Recognized Non-Government Secondary School Teachers Employees Service Regulations, 1979. According to the respondents, the petitioner is entitled to get gratuity of one month against every three years’ service, i.e. he is entitled to get salary of 8 months of his total service.
3. Against the said letter the petitioner filed Writ Petition No. 1622 of 2012 before the High Court Division and obtained Rule.
4. By the impugned judgement and order, the High Court Division discharged the Rule. Hence, the petitioenr has filed the instant civil petition for leave to appeal challenging the impugned judgement and order of the High Court Division.
5. Mr ABM Bayezid, learned Advocate appearing on behalf of the petitioner submitted that the High Court Division failed to consider that the petitioner was appointed by respondent No.1, and accordingly respondent No. I is duty bound to give benefit to the petitioner as per the Rules of the respondent No.1 and the High Court Division declared that the petitioner as an employee of the respondent No. 4 and, as such, committed serious error of law and the petitioner is highly prejudiced and, as such, the impugned judgement and order is liable to be set aside.
He further submitted that as a similar matter, a senior teacher namely Mrs Rajia Akhter of the same school got the benefit of her retirement at the age of 60 years, but the petitioner did not suffer the same double standard as maintained here, and, as such, the impugned judgement and order is liable to be set aside for ends of justice.
He lastly submitted that the petitioner was offered 42 months’ salary for 21 years’ service in the school on condition to deduct the two years’ salary already received by the petitioner for his service, but after the judgement of Writ Petition No.2366 of 2002 the authority did not pay the same in respect of the petitioner.
6. Mr Tufailur Rahman, learned Senior Advocate appearing for respondent No. I made submissions in support of the impugned judgement and order of the High Court Division.
He submitted that the petitioner would receive his salary as teacher up to the age of 60 years, but he could not get the retirement benefit of an employee of BJMC after reaching the age of 57 years since that would not be covered by the Service Rules applicable to BJMC employees.
7. We have considered the submissions of the learned Advocates for the parties concerned and perused the impugned judgement and order of the High Court Division and other connected papers on record.
8. It appears from the impugned judgement that the High Court Division took note of the earlier judgement in Writ Petition No. 2366 of 2002 that the writ petitioner claiming himself as an employee of Crescent High School he would not get gratuity of two months’ salary against every one year of service as per provision of BJMC Employees Service Regulations.
It was further held by the impugned judgement that the writ petitioner would get retirement benefits as per the provisions of the Board of Intermediate and Secondary Education Ordinance 1961.
9. In view of observations made by the High Court Division in the earlier Writ Petition No. 2366 of 2002 and the observation of the High Court Division in the impugned judgement in juxtaposition with the submissions made before us by the learned Advocate appearing on behalf of respondent No.-I, we are of the opinion that the petitioner would be entitled to receive the enhanced retirement benefits provided by the BJMC Service Regulations up to his age of 57 years and that in addition he would be entitled to receive the benefits and salaries in accordance with the provisions of the Board of Intermediate and Secondary Education Ordinance, 1961 for the period in between his age of 57 and 60 years.
The petitioner would thus receive benefits and salary up to the age of 60 years as a teacher not as an employee of BJMC and, therefore, there will not be any deduction in respect of this salary received as a teacher up to the age of 60 years.
With the above observations, the civil petition for leave to appeal is disposed of.
Nazmun Ara Sultana J
Syed Mahmud Hossain J
Md Imman Ali J
ABM Nasrul Aziz…………Petitioner
vs
Crescent Jute Mills Company Limited, represented by its General Manager and others… Respondents
Judgment
September 15th, 2014
Constitution of Bangladesh, 1972
Article 102(2)
The petitioner receive benefits and salary up to the age of 60 years as a teacher not as an employee of BJMC and, therefore, there will not be any deduction in respect of salary received as a teacher up to the age of 60 years. …….(9)
ABM Bayezid, Advocate, instructed by Syed Mahbubar Rahman, Advocate-on-Record-For the Petitioner.
Tufailur Rahman. Senior Advocate, instructed by Chowdhury Md Zahangir, Advocate-on-Record-For Respondent No. 1.
None Represented -Respondent Nos. 2-4.
Judgment
Md Imman Ali J : This civil petition for leave to appeal is directed against the judgement and order dated 8-1-2012 passed by a Division Bench of the High Court Division in Writ Petition No. 7040 of 2010 discharging the Rule.
2. The facts of the instant case, in brief, are as follows:
On 10-10-1978 the petitioner on getting appointment as Assistant Teacher of the Crescent High School, joined in the said post. On 9-1-2002 the petitioner was served a letter of retirement tinder Memo No. BJM/ Administration/21/4509 dated 12-1-2002 stating that the authority had decided to retire all the teachers at their age of 57 years instead of 60 years. Accordingly, the petitioner was directed to refund the salary which he got after attaining the age of 57 years. Challenging the said letter, the petitioner filed Writ Petition No. 2366 of 2002 before the High Court Division and obtained Rule. The Rule in the said Writ petition was disposed of with an observation that since the petitioner retired from his service, he is entitled to get retirement benefit up to his age of 60 years in accordance with law.
Before passing the said order the petitioner attained the age of 60 years. Thereafter the respondents by the impugned letter dated 17-9-2009 informed the petitioner that he would get gratuity as per provision of Regulations 28 and 29 of the Recognized Non-Government Secondary School Teachers Employees Service Regulations, 1979. According to the respondents, the petitioner is entitled to get gratuity of one month against every three years’ service, i.e. he is entitled to get salary of 8 months of his total service.
3. Against the said letter the petitioner filed Writ Petition No. 1622 of 2012 before the High Court Division and obtained Rule.
4. By the impugned judgement and order, the High Court Division discharged the Rule. Hence, the petitioenr has filed the instant civil petition for leave to appeal challenging the impugned judgement and order of the High Court Division.
5. Mr ABM Bayezid, learned Advocate appearing on behalf of the petitioner submitted that the High Court Division failed to consider that the petitioner was appointed by respondent No.1, and accordingly respondent No. I is duty bound to give benefit to the petitioner as per the Rules of the respondent No.1 and the High Court Division declared that the petitioner as an employee of the respondent No. 4 and, as such, committed serious error of law and the petitioner is highly prejudiced and, as such, the impugned judgement and order is liable to be set aside.
He further submitted that as a similar matter, a senior teacher namely Mrs Rajia Akhter of the same school got the benefit of her retirement at the age of 60 years, but the petitioner did not suffer the same double standard as maintained here, and, as such, the impugned judgement and order is liable to be set aside for ends of justice.
He lastly submitted that the petitioner was offered 42 months’ salary for 21 years’ service in the school on condition to deduct the two years’ salary already received by the petitioner for his service, but after the judgement of Writ Petition No.2366 of 2002 the authority did not pay the same in respect of the petitioner.
6. Mr Tufailur Rahman, learned Senior Advocate appearing for respondent No. I made submissions in support of the impugned judgement and order of the High Court Division.
He submitted that the petitioner would receive his salary as teacher up to the age of 60 years, but he could not get the retirement benefit of an employee of BJMC after reaching the age of 57 years since that would not be covered by the Service Rules applicable to BJMC employees.
7. We have considered the submissions of the learned Advocates for the parties concerned and perused the impugned judgement and order of the High Court Division and other connected papers on record.
8. It appears from the impugned judgement that the High Court Division took note of the earlier judgement in Writ Petition No. 2366 of 2002 that the writ petitioner claiming himself as an employee of Crescent High School he would not get gratuity of two months’ salary against every one year of service as per provision of BJMC Employees Service Regulations.
It was further held by the impugned judgement that the writ petitioner would get retirement benefits as per the provisions of the Board of Intermediate and Secondary Education Ordinance 1961.
9. In view of observations made by the High Court Division in the earlier Writ Petition No. 2366 of 2002 and the observation of the High Court Division in the impugned judgement in juxtaposition with the submissions made before us by the learned Advocate appearing on behalf of respondent No.-I, we are of the opinion that the petitioner would be entitled to receive the enhanced retirement benefits provided by the BJMC Service Regulations up to his age of 57 years and that in addition he would be entitled to receive the benefits and salaries in accordance with the provisions of the Board of Intermediate and Secondary Education Ordinance, 1961 for the period in between his age of 57 and 60 years.
The petitioner would thus receive benefits and salary up to the age of 60 years as a teacher not as an employee of BJMC and, therefore, there will not be any deduction in respect of this salary received as a teacher up to the age of 60 years.
With the above observations, the civil petition for leave to appeal is disposed of.