SYED SM HASAN VS BANGLADSEH 60 DLR AD 76

 

Analysis of the Fact:

The petitioner was a Deputy General Manager of the Rupali Bank. All the posts of the General Manager in all the Nationalized Banks and the Rupali Bank Ltd were included in a common pool with a combined seniority list and promotion centrally controlled under the provisions of impugned Public Notification. Pursuant to the provisions contained in the notification a Committee was set up. The Committee called the appellant along with many other Deputy General Manager for an interview for selection for promotion to General Managers in para 5(3) of the Notification. The Election Committee prepared a list of 35 candidates fit for promotion in which the name of the appellant appeared at serial no.25. The list was submitted to the Honorable Prime Minister by the Ministry of Finance with the further recommendation that the panel of the selected candidates be kept valid for 18 months until 31-12-99. There was an inordinate delay in submitting the summary to the Honorable Prime Minister. But the Prime Minister approved it for little over 5 months up to 30-6-99 causing serious prejudice to the appellant and others included in the list. Then out of the said list of 35 all but 13 officers were given promotion. 

Argument from the Petitioner:

It was argued that when the appellant’s selection was approved by the Prime Minister he acquired a vested right to be promoted which was a valuable right could not be wiped out on the plea of expiry of the period of validity. While selecting the appellants and others it was stipulated that they would be promoted against vacancies occurring up to 31-12-1999. If the list was not completed the period would be extended further. Instead of extending the time which was stipulated at the time selection it was arbitrarily cut short for no reasonable ground. The government practiced double standard by promoting 7 persons who were left out from the list of 1999 while promoting the persons selected in 2000 without considering the case of the appellant and 12 others who were similarly selected in the list of 1998 and deserved similar treatment.

Argument from the Respondent:

It was argued that the respondent had no legal duty towards the appellants to impanel him and to promote him according to any such panel as of right as the same had no statutory basis. The appellant could not be promoted within the specified time for which the panel was prepared. The appellant had appeared subsequently before the selection Board for empanelment waiving the previous empanelment for promotion to the post of General Manager and being unsuccessful to be empanelled could not maintain his claim on the basis of lapse in empanelment of 1998.

Decision and Reasoning behind the decision:

The appeal was dismissed because the appellant did not agitate his claim in any court of law until the Minister had recommended inclusion of 7 left out listees in the 2^nd list to be listed in the 3^rd list and to be included for consideration for promotion to the post of General Manager. The appellant had as well waived his right to be considered for promotion having appeared in the second examination for selection and failed to qualify himself. Waiver or acquiescence in the facts of the case operated as estoppels and as such no case of legitimate expectation as well was attracted in the facts of the case. 

Principle:

The principle came out from the case is that right to be promoted on the basis of seniority-cumfitness is a inherent right of a public servant and preparation of another list without exhausting the previous one is discriminatory and contrary to the principle of equity and good conscience and also legitimate expectation.

Importance of this case:

In this case the concept of legitimate expectation in case of a government service holder regarding his/her promotion was narrated. Court in this regard correctly stated, “The list of promotes should be shorter one considering the vacant available posts. In order to maintain the discipline and efficiency of a service a person who is qualified to be promoted once recommended for the purpose with the approval of the competent authority shall continue to remain so until he is retired or acquires certain disqualifications as per requirement.” But it was also said in this case that waiver or acquiescence of the right acts as an estoppels and in that case there will be no application of the doctrine of legitimate expectation.