Bangladesh Service Rules
Rule 9- Service record counted when the date of birth entered in the service or SSC-Rule 9 of Bangladesh Service Rules (Part-1), where it has been stated as under:
"বিধি-৯। সরকারী চাকরিতে প্রবেশের সময় বা প্রবেশের উদ্দেশ্যে একজন আবেদনকারী যে বয়স ঘোষণা করেন, উহাই তাহার ক্ষেত্রে আবশ্যিকভাবে প্রযোজ্য হইবে এবং পরবর্তীকালে কোন উদ্দেশ্যেই তাহা সংশোধনের অনুমতি দেওয়া যাইবে না।"
The case of Randir Singh Vs. The Sate of Rajastan and others reported in 1992(2) ESC 435 (Raj) where it has been observed that the respondents were duty bound to scrutinize the documents right at the time of admission rather than punishing at a belated stage.
(1995) 4 SCC 172 the Indian Supreme Court held that when the date of birth entered in the service and leave record on the basis of voluntary declaration made by the employee at the time of appointment authenticated by him and never objected to up to the fag end of service such action of any party will act as acquiescence and when a party expresses acquiescence and thereby waived a right to dispute he will be estopped from making any such dispute at the end of the service.
Reported in 15 MLR (AD) 65, this Division held that when by an act, conduct or consent, express or implied a person allows another person to proceed in doing some act or transaction with bona fide belief, such conduct or consent of the person so allowing constitutes waiver and acquiescence and the said person is stopped from claiming any right subsequent thereto against the person acting under such assurance.
We are of the view that since the order impugned before the High Court Division had been issued after retirement of the writ- petitioner-respondent he cannot be treated in the service of the Republic. Thus issuance of the order impugned before the High Court Division upon the writ- petitioner-respondent, when he was not actually in the service can be challenged under Article 102 of the Constitution. We do not find any substance in this appeal. Accordingly, this civil appeal is dismissed without any order as to costs.... Ministry of Social Welfare, Bangladesh VS= Akterun Nabi(Md.), [7 LM (AD) 63]
Rule 9-The doctrine of reasonableness does not also permit to give a decision contrary to that, otherwise everyone after joining in the service can easily go for the correction of Certificate and there will be an absolutely anarchy in the Government Service, needless to mention.
The High Court Division held that admittedly, the petitioner after passing the S.S.C examination successively passed other three public examinations held in the year that is H.S.C in the year 1978, B.Sc in 1980, M.A 1983 and LL.B preliminary in 1984 but from 1976 till 1984 the petitioner never realized that his date of birth has been wrongly written in the S.S.C certificate. Even after receiving the corrected S.S.C Certificate in the year 2006 he took up the matter for further steps in the year of 2007 but he did not pursue that and finally with the change of the age of the government servant in the year of 2012 he took up this matter again on 07.04.2016. Therefore, the service Rule 9 as it stands has been reasonably breached when he expressed his intention other then what he declared at the time of joining in the service. Md. Moshiar Rahman -Vs- Government of the People's Republic of Bangladesh (Spl. Original) 18 ALR (HCD) 16-22
Bangladesh Service Rules (Part-1)
Rule 9-When the date of birth entered in the service and leave record on the basis of voluntary declaration made by the employee at the time of ap- pointment authenticated by him and never objected to up to the fag end of service such action of any party will act as acquiescence and when a party expresses acquiescence and thereby waived a right to dispute he will be estopped from making any such dispute at the end of the service.
The Appellate Division observed that the High Court Division relied upon the case of Randir Singh Vs. The Sate of Rajastan and others reported in 1992 (2) ESC 435 (Raj) where it has been observed that the respondents were duty bound to scrutinize the documents right at the time of admission rather than punishing at a belated stage. Again in the case of Burm Standard Company Co. Ltd and others Vs. Dinabandhu Majumder and another, (1995) 4 SCC 172 the Indian Supreme Court held that when the date of birth entered in the service and leave record on the basis of voluntary declaration made by the employee at the time of appointment authenticated by him and never objected to up to the fag end of service such action of any party will act as acquiescence and when a party expresses acquiescence and thereby waived a right to dispute he will be estopped from making any such dispute at the end of the service. In the case of Major (Rtd) Quazi Hasna Hena Begum Vs. Lt. Col. Kazi Mansurul Islam and others, (2010) reported in 15 MLR (AD) 65, the Appellate Division held that when by an act, conduct or consent, express or implied a person allows another person to proceed in doing some act or transaction with bona fide belief, such conduct or consent of the person so allowing constitutes waiver and acquiescence and the said person is stopped from claiming any right subsequent thereto against the person acting under such assurance. Relying on the cases referred to above, the Appellate Division finds that the writ-respondent-appellants in last 32 years by their conduct, act and consent, expressed that they had no objection as to the date of birth of the writ-petitioner respondent endorsed in the service book made on the basis of the affidavit sworn in by his father on 25.08.1976. Under such circumstances, the writ-respondent-ap- pellants could not come with the plea that the writ-petitioner-respondent's retirement was overdue and he had been rightly asked to refund the pay and other benefits, which for the excess 2 in the he received for tento Bangladesh, represented by the Secretary, Ministry of Social Welfare, Bangladesh Secretariat, Ramna, Dhaka and others. Vs. Md. Akterun Nabi. (Civil) 16 ALR (AD) 71-76
Editors’ Note
Question arose in this case as to whether the petitioner-respondent who left for Japan for higher training with the leave of the Government for 6 months and availed a further leave of another 3 (three) months as leave outside Bangladesh and joined in his post after 7 years 7 months 24 days being absent from service during this time without any leave from the competent authority, have ceased to be a government servant in accordance with Rule 34, 1st Part of the Bangladesh Service Rules, in spite of the fact that he was initially permitted to rejoin in the post and worked there for about 1 year and 7 months. The Administrative Appellate Tribunal decided that by accepting the joining of the respondent-petitioner the Director General of Industry and Labour Wing retrospectively approved his unauthorized leave and the Government waived its right to reject the rejoining of the petitioner in service. The Appellate Division held that the Director General was not empowered to act under rule 34 and therefore, his act of allowing the respondent rejoining in service was not only without lawful authority but also void ab intio. The Court also held that the doctrine of estoppels, waiver and acquiescence is not applicable against statutory provisions and as such, though the respondent has served for about 1 year and 7 months after rejoining in the service, that cannot be deemed to be a waiver by the government against the clear statutory provision embodied in rule 34.
Rule 34, 1st Part of the Bangladesh Service Rules: It is unambiguous from the phraseology of the rule 34 of the BSR that when continuous absence from work exceeds five years, be the absence with or without leave; the service of a Government servant will come to an end. Yet, the Government and only the Government may make a diverse conclusion upon taking into consideration any special state of affairs. Consequently, this mechanical ceasing of the service is subject to the ability of the Government to take a different decision in the light of out of the ordinary situation. ...(Para 14) What is void ab initio, that cannot be validated later in any way: However, the Administrative Appellate Tribunal miserably failed to notice that in the instant case there found no application of the said “special circumstances of the case” by the Government. Rather the then Director General applied the said “special circumstances of the case’ concerning the unauthorized leave of absence of the respondent for 07 years and 07 months and 24 days from his work. As the Director General was not empowered to act under rule 34, his alleged application of the said “special circumstances of the case’ was not only without lawful authority but also void ab intio. What is void ab initio, that cannot be validated later in any way. ...(Para 17) 16 SCOB [2022] AD 46
Rule 34- Decision of the concerned authority to treat the service of the writ-petitioner as ceased, without considering any special circumstances put forward by her, is in violation of rule 34 of the BSR. Government of Bangladesh vs Dr Monija Begu (Civil) 71 DLR (AD) 44
Rule 34- In the proggyapon, which was impugned in writ petition, it was stated that according to rule 34 of BSR her employment ceased since she was absent from her job for more than 5 years. Although there was mention in rule 34 of BSR of the possibility of 'the Government deciding otherwise in special circumstances', there was nothing in the notice to suggest that any special circumstances were considered and rejected. The authority concerned did not consider the special circumstances and thus the decision not to accept the writ-petitioner's joining letter was without lawful authority. Bangladesh vs Dr Monija Begu (Civil) 71 DLR (AD) 44
Rule 34-When absence from work exceeds five years, be the absence with or without leave, the service of a Government servant will come to an end. However, the Government may make a different decision upon taking into consideration any special circumstances. This automatic ceasing of the service is subject to the ability of the Government to take a different decision in the light of special circumstances. Government of Bangladesh vs Dr Monija Begu (Civil) 71 DLR (AD) 44
Bangladesh Service Rules
Rules 34, 72 (b) 195
The respondent was not absent from duty. He was prevented from joining his duties because of the order of removal. Rule 195 has also no application. B.S.M.E vs Shemsuddiin Ahmed (Civil) IADC 14
Rule 34- Writ-petitioner allowed to join her post- We are of the opinion that the decision of the concerned authority to treat the service of the writ-petitioner as ceased, without considering any special circumstances put forward by her, is in violation of rule 34 of the BSR. Hence, the writ-petitioner-respondent No.1 must be allowed to join her post. The writ- respondents are directed to accept the joining letter of the writ-petitioner. However, in view of her absence from service, we are of the opinion that the writ- petitioner will not be entitled to receive any arrear salary. ...Government of Bangladesh =VS= Dr. Monija Begum, [6 LM (AD) 35]
Rule 34- When absence from work exceeds five years, be the absence with or without leave, the service of a Government servant will come to an end. However, the Government may make a different decision upon taking into consideration any special circumstances. Hence, this automatic ceasing of the service is subject to the ability of the Government to take a different decision in the light of special circumstances.
