MAJOR GENERAL MOINUL HASSAN CHOWDHURY VS BANGLADESH 50 DLR HCD 1998

 

 Analysis of the Fact:

The petitioner had been superseded by Mojor General Mohammad Nasim and Major General Mahbubur Rahman who were junior to him. While promoting them to the rank of Lt General his case was not considered as per the requirements of Army Regulations, 1960. He had submitted details showing the seniority of officers at page 9 of the petition. In spite of his seniority and better qualification Respondent no.3 was promoted to the post of Chief of Staff and Lieutenant General and Respondent no.04 to the post of Chief of Staff and Lieutenant General. Against this illegal supersession he made a representation for redress to the honorable Defense Minister with a copy to the Honorable President but no result came out. Lastly he secured Demand of Justice notice through his lawyer calling upon the Respondents to undo the injustice done to the petitioner. On receipt of the notice Respondent no.01 issued a letter to the petitioner directing him to inform Respondent no.o1 whether he had instructed his lawyer to issue the Demand of Justice notice. On this point the petitioner submitted before the court that such direction was Malafide threat to the petitioner.

Argument from the petitioner:

It was argued that

v  The impugned notifications superseding the petitioner were made in violation of Rules 195 and 196 of Army Regulations, 1960. The petitioner was not notified of the first supersession because it was a temporary one and he need not challenge the same. So, this petition was no a delayed one.

v  There was no reason not to follow the Principle of Seniority while promoting them in supersession to the petitioner. The notifications were of violative of Articles 27,29 and 31 of our Constitution.

v  The orders had not been passed for maintenance of the Discipline in the army so, Article 45 had no application here.

Argument from the Respondent:

It was argued that

v  The petitioner was a member of Disciplined Force and the impugned orders was related to the terms and conditions of the service of the Defense Personnel and this petition was not maintainable.

v  The petitioner himself having accepted the assignment in the Ministry of Foreign Affairs so He had no reason to move this petition after long lapse of time.

Issues:

1.      Whether the order of promotion has been given lawfully or not?

2.      Whether the petition was maintainable or not?

3.      Whether the petition suffered delay or not?

Decision:

Firstly the petition was maintained but finally the petition was rejected.

Reasoning behind the decision:

The petition was maintained on the following grounds:

•      When an order is passed retiring a member of Disciplined Force such an order though beyond the scope of judicial review under Article 102 comes within the purview under Article 134 of our Constitution. So, the petition was maintainable.

•      Promotion of a member in the disciplined force was no within the arena of Article 45. So the impugned order did not avoid the judicial review.

The petition was rejected on the following grounds:

•      The question of informing about supersession by the first notification did not arise as he was superseded permanently. So, this petition suffered from inordinate delay.

•      A servant of the Republic cannot claim promotion as a right. Mere seniority can not be only ground for promotion. Nothing in the petition showed that his promotion was required for the interest of the service.

Principle:

Promotion in a service of Republic does not depend upon only on the issue of seniority rather it depends upon the other qualities such as the interest of that particular service.

Importance of this case:

In this case the scope of judicial review in case of the service of Disciplined Forces was clarified. It was said that promotion of a member in Disciplinary Force does not come within the scope of Article 45.Again though retirement of a disciplinary post does not come within judicial review under Article 102 but comes under Article 135. So the issues raised in this petition are judicially reviewable. Another important notion came out from this case regarding the grounds for promotion that mere seniority cannot be the only ground for promotion in a service.