BSTI service regulations, 1989
Regulations 7 and 14 read with
Regularization of Ad-hoc Employees Appointment Rules, 1994
Rule 5 Nothing wrong in bridging the gap of the service of Khademul Islam for the period from 28.03.1994 and 09.10.1994, but the High Court Division totally failed to consider the circular vide No. শ. ম/আর-১/এস-১৬ ৯১/০৯ (২৫০) dated 11.01.1992 of the Ministry of Establishment and thus erred in law in holding that bridging the gap of service of Khademul Islam was done illegally.
The Appellate Division observed that the High Court Division failed to consider that due to bridging of the gap of the servivce of Khademul Islam, he was much senior to the writ-petitioners, Mohammad Ali and Md. Abu Hossain. This will be clear from the fact that Mohammad Ali was appointed as the Assistant Director in the revenue budget on 14.08.1997 after regularization of his service on 29.07.1997 and he joined the post on 17.08.1997. It may be stated that Mohammad Ali was promoted to the post of Assistant Director temporarily on 29.03.1992. Md. Abu Hossain was promoted in the post of Assistant Director on 22.01.1991. So appellant, Khademul Islam in Civil Appeal Nos. 45, 47, 48 and 49 of 2005, was senior to the writ petitioners, Mohammad Ali and Md. Abu Hossain, but the High Court Division failed to consider the said facts in line with the circular of the Ministry of Establishment Bangabandhu Sheikh Mujib Medical University Ain, 1998
Sections 23(2)(Gha) and 48-Every employees of the University including teachers are getting their salary and other service benefits in accordance with law in lieu of their service rendered to the University and so they should not be allowed to share an extra income/allowances beyond their service benefits in the garb of incentive or bonus sharing the "User Fees". Therefore, the employees and teachers of the University who are not involved with the concerned departments, can not be allowed to share "User Fees". However, the teachers and employees of the concerned departments, since enjoying the "User Fees" from 1937 they are allowed to continue the same in a limited manner with condition.
The High Court Division observed that the petitioners categorically state in the affidavit in reply that they have to work whole day in the University, in particular, from 8:30 am to 8:00 pm of the day. We appreciate their hard working duty and certainly they entitled to get are remuneration as they have been enjoying. At the same time, they are not supposed to have any extra time for private practice and it is also not humanly possible for a man to work more, after performing duty from 8:30 am to 8 pm of the day. Therefore, the petitioners as well as all the concerned persons (Technician, Staff and Teachers) of all concerned departments, who are getting incentive from the income of "User Fees", they should not be allowed to do private practice outside the University. In view of above discussions, the High Court Division finds merit in this Rule and hence the Rule is made absolute. The impugned office order bearing No. BSMMU/2018/8911 dated 07.08.2018 (Annexure-A to the writ petition) so far as it relates to paragraph No. 2, regarding distribution of "User Fees" is hereby declared to be without lawful authority and of no legal effect with the aforesaid observations and following directions:
(i) After decision of the Syndicate by the meeting dated 27.05.2007 the "User Fees" have to be distributed with the ratio 70:30 after deducting the costs incurred for purchasing reagents and other ancillary materials, maintenance and development costs of laboratory. In this regard, the University after making calculation shall ensure refund of the amount which were distributed in excess among the employees and teachers.
(ii) From now distribution of "User Fees" shall be continued at the ratio 70:30 after deducting reagents costs and all other incidental costs to be incurred on account of earning "User Fees" including infrastructural development and maintenance of the Laboratories and its machineries and equipments.
(iii) The University shall review all prices of the medical examinations (tests) by the Syndicate with consultation of the Finance Committee keeping in mind the constitutional mandate as to public health, one of the fundamental principles of state policy.
(iv) All the teachers, technicians and employees of the departments of Microbiology, Virology, Biochemistry and Molecular Biology and the teachers and employees of the other departments of the University who enjoy/share "User Fees" are hereby restrained from doing any private practice and all the "User Fees" must be distributed after deducting the applicable taxes under the prevailing law.
The University is directed to formulate a Rule relating to sharing of "User Fees" in the concerned departments in the light of the observations made in this judgment. Dr. Ahmed Abu Saleh and others -Vs.- Government of Bangladesh and others. (Spl. Original) 19 ALR (HCD) 194-203
