Absorption in Service
Absorption/regularization/Transfer to revenue budget
Work-charged employee
Though the appellant was appointed as a work- charged employee but no such permanent post was created in the project, so as to avail any scope for regularization of the appellant as per the circular/notifications. Though the circular or administration instructions have been specifically declared as order making rule contained in Memo issued by the authority, but the same may not be treated as statutory rules having no statutory backing, but no such regular posts being available for regularization, a work-charged employee could not be regularized inasmuch as no such promissory estoppel could be claimed under the circumstances. (Para-22, Mr. Justice Mohammad Fazlul Karim). 25 BLD(AD)250: Md. Abdur Rahman Vs. Government of Bangladesh & another: Ref: 50 DLR(AD)27, PLD 1961(SC)105-13 DLR(SC)100, PLD 1964(SC)21-16 DLR(SC)58, PLD 1968(SC)97-20 DLR(SC)78, AIR 1986(SC)555, 1999 SCC 642, 2003 SCC 388, 5 SCC 388
Absorb the Revenue budget with continuity of service and other benefits- Leave is granted grounds that the writ petitioners were appointed in the project which is ongoing project and as such, no cause of action has been arisen to file this writ petition, the High Court Division without considering the said facts and legal aspect erred in law in giving direction to absorb/regularize/ transfer the writ petitioners in the service of revenue budget. Roads & Highways Department (RHD), Dhaka -VS- Abdul Motaleb(Md.), [7 LM (AD) 186]
Absorption- It has been stated in the petition that the project, in which, the writ petitioner-respondents have been serving is an ongoing project and their learned counsel failed to produce any maternal contrary to that submission and that they have been still receiving their salaries and other benefits from the said project, we are of the view that proper course would be to modify the order passed by this Division to the extent that the case of the writ petitioner-respondents regarding absorp- tion/regularization of their services in revenue set up may be considered by the writ respondent petitioners following the guidelines given in the case reported in 17 BLC (AD) 91 after completion of that ongoing project. With the observation made above, all these petitions are disposed of.... Bangladesh Rural Development Board VS Md Shahidul Islam, [7 LM (AD) 245]
Absorbtion- In the light of the decision of ECNEC dated 30.12.2007 and the provisions of SRO No. 182- Ain/2005/Shomo/Bidhi-1/S-9/2000 dated 20.06.2005 after completion of the project their service would be transferred to the revenue budget- The petitioners had been given assurances that their services might be transferred/absorbed in the revenue budget. Since in similar circumstances the government has implemented the directions of the Supreme Court and absorbed the writ-petitioners in Writ Petition No.5667 of 2008, it would be discriminatory not to treat the present respondents equally. We do not find any illegality or infirmity in the impugned judgement, which calls for any interference. The appeal is dismissed. Government of Bangladesh VS= Md. Saiful Islam, [6 LM (AD) 104]
Absorption Recently these issues have been dealt with by this Division in Civil Appeal No.460 of 2017(Secretary V. Abdur Razzak and others) with the following observations:
"1. The legitimate expectation would not override the statutory provision. The doctrine of legitimate expectation can not be invoked for creation of posts to facilitate absorption in the offices of the regular cadres/non cadres. Creation of permanent posts is a matter for the employer and the same is based on policy decision.
2. While transferring any development project and its manpower to revenue budget the provisions provided in the notifications, government orders and circulars quoted earlier must be followed. However, it is to be remembered that executive power can be exercised only to fill in the gaps and the same cannot and should not supplant the law, but only supplement the law.
3. Before regularization of service of the officers and employees of the development project in the revenue budget the provisions of applicable "Bidhimala" must be complied with. Without exhausting the applicable provisions of the "Bidhimala" as quoted above no one is entitled to be regularised in the service of revenue budget since those are statutory provisions.
4. The appointing authority, while regularising the officers and employees in the posts of revenue budget, must comply with the requirements of statutory rules in order to remove future complication. The officers and employees of the development project shall get age relaxation for participation in selection process in any post of revenue budget as per applicable Rules.
5. A mandamus can not be issued in favour of the employees directing the government and its instrumentalities to make anyone regularized in the permanent posts as of right. Any appointment in the posts described in the schedule of Bangladesh Civil Service Recruitment Rules, 1981, Gazetted Officers (Department of Livestock Service) Recruitment Rules, 1984 and Non-gazetted Employees (Department of Livestock Service) Recruitment Rules, 1985 bypassing Public Service Commission should be treated as back door appointment and such appointment should be stopped.
6. To become a member of the service in a substantive capacity, appointment by the President of the Republic shall be preceded by selection by a direct recruitment by the PSC. The Government has to make appointment according to recruitment Rules by open competitive examination through the PSC.
7. Opportunity shall be given to eligible persons by inviting applications through public notification and appointment should be made by regular recruitment through the prescribed agency following legally approved method consistent with the requirements of law.
8. It is not the role of the Courts to encourage or approve appointments made outside the constitutional scheme and statutory provisions. It is not proper for the Courts to direct absorption in permanent employment of those who have been recruited without following due process of selection as envisaged by the constitutional scheme."
When the employees of the development projects or casual employees appointed as stop-gap arrangement have put in for considerable years of service in the posts and their works have been approved but they could not be regularized, the only provision provides for them is to qualify the requisite examination and in such circumstances, they would get relaxation of upper age limit. If they are not selected, at the end of the day, they would return home from their respective working place with empty hand.
Sympathy, empathy or sentiment by itself, cannot be a ground for passing an order where the litigants miserably fail to establish legal right. It is true that the respondents had been working for a long time, the same by itself would not be a ground for directing regularization of the service. This Court is of the view that the writ petitioners are not entitled for any relief as sought for. All the civil petitions are disposed of. Judgments and orders impugned are hereby set aside. ... Bangladesh Rural Development Board VS Md. Rabeul Karim, [8 LM (AD) 339]
Absorb- the writ-petitioners in the regular setup and they will not get continuity in their service To absorb the writ-petitioners under the revenue budget with continuity of service, arrears and other benefits and obtained Rules Nisi. We are of the view that the direction of the High Court Division to absorb the writ-petitioners with continuity of their error of law in directing to absorb the writ petitioners in Revenue budget upon making the Rule absolute in part.
The appeal is allowed without any order as to costs. The judgment and order of the High Court Division passed in Writ Petition No.2910 of 2011 is hereby set aside. ....Election Commission, Bangladesh VS Md. Golam Mostafa, [6 LM (AD) 131]
