“Absorption in lower position in Government Service is illegal”
Government budget in the country has two parts; revenue budget and development budget for development projects. The formulation of the two budgets follows different procedures, their financing patterns and expenditures are also different. The employees working in the development projects are different from employees of revenue setup. In the time of working in the development projects, they are given hope and assurance that they would be absorbed in the revenue set up after the completion of the project.
After utilizing an employee for more than ten to twenty years by taking his service and not giving him any employment without assigning any reason is highly unfair and undesirable. He has a right to be given preference over new applicants in the same or any senior post according to his experiences and his skills for employment in either the development budget or the revenue budget provided their past employment history is satisfactory.
For example, a person “X”, who is an Ex-Head Master of a Private Primary School. He gave his service to that school almost for ten years and as a Head Master for four years. In his service time, he gave his best for the School and ranked the school in top by academic result. The school governing body appointed him as a Head Master for his excellent professional service and for his hard work. The school came under MPO facilities. His name was recommended for MPO list and it was inserted in the MPO list. The post adopted in the revenue but his scale was lowered to the scale of an Assistant Teacher.
In this case, he was in service for Head Master for a long period of time. His position was absorbed in the revenue but listed in lower position as an Assistant teacher which is below in rank, and now the age limit is finished for being appointed in any government service or any local body in that position. The duration of his appointment were extended time to time when it was necessary by them and he gathered experiences, skill, reputation, rights in this respective post. It is to be regarded as violative of the equality clause when it is arbitrary and discriminatory. The classification appears to be unreasonable and arbitrary it is regarded as an infringement of the equality clause.
In this case, the question arises, whether the absorption in lower position in Government service is illegal or not? Whether the absorption in lower position is constitutional or not?
Article-29(1) provides,” There shall be equality of opportunity for all citizens in respect of employment or office in the service of the republic”. In guaranteeing equality of opportunity for all members of the service republic, article-29 really gives effect to the equality before the law and equal protection of law guaranteed by article-27. Article-27 is attracted in all cases of employment by the state and any difference between the citizens in respect of all matters concerning public employment, to be valid, must be based on reasonable qualification.The rule of master and servant is not applicable in respect of their employees and being part of the state they cannot act arbitrarily or discriminatorily.
According to the AKM Fazlul Haq vs Peoples Republic of Bangladesh, 67 DLR 178 (Article 27 and 102) that equality of opportunity for the citizens in public employment connotes that persons placed in the same class or category are to be treated equally and cannot be discriminated merely on the ground on their placement and service in other department. This is well-settled position of law, having been confirmed through several pronouncement of the apex court. Consequently, any deviation there from would call for interference by this court. According to Monirul Islam (MD) vs Bangladesh Jute Mills Corporation (BJMC),23 BLC 206 that The power of absorption, no doubt, is discretionary but is coupled with the duty not to act arbitrarily, or at the whim or caprice of any individual.
Article -27 and article-29 require that the qualification relating to the suitability of the candidate for the public service there must be reasonable and not arbitrary and must have a rational relationship with the suitability of the candidates for the post or office. The constitutional provisions make no distinction between temporary and permanent posts and are applicable to all posts equally. Absorption in lower position is unconstitutional and illegal, aggrieved person has the constitutional right to claim his position if he absorbed in lower position in rank or scale in any government service.