Dr. Nurul Islam Vs. Bangladesh & Others [1981 1 BLD (AD) 140]

Court

Appellate Division

Case Name

Dr. Nurul Islam Vs. Bangladesh & Others

Citation

1981 1 BLD (AD) 140 

Petition No

C.A. 122 of 1980 from W.P. 489 of 1980

Date of Decision

09.12.1980

Name of the Parties

Dr. Nurul Islam

Matter

The question involved with whether the compulsory retirement of Dr. Nurul Islam under Section 9(2) of the Public Servant (Compulsory Retirement) Act, 1974 violated the Article 135 of the Constitution of Bangladesh or not and he was entitled to the opportunity of being heard under the Article 135 of the Constitution. 

Factual Background

Dr. Nurul Islam was a renowed Professor and personal physician of the then President Bangabandhu Sheikh Mujibur Rahman who was the Professor of the Medicine and Director of the Institution of Post Gradute Medicine and Research, Dacca. In 1978, he was given a compulsory retirement under Section 9(2) of the Public Servant (Compulsory Retirement) Act, 1974 without any proper reason rather than he completed 25 years of service as assigned. Then, he challenged the validity of the Section 9(2) on the basis of Article 27 and 29 of the Constitution.  

Legal Views

"Section 9(2) is not violative of the Article 135 for simple reason that protection under Article 135 is strictly limited to dismissal, removal or reduction in rank, whereas premature retirement on completion of 25 years service with full pensionary benefits, does, under no circumstances, amount to dismissal or removal." ~ Mr. Justice Shahabuddin Ahmed, [Para: 127(c)].

"A government servant has a right to hold the post to which he has been substantively appointed. He can be removed from the post only in accordance with the Rules or law governing his service and the same must be in conformity with Article 135 of the Constitution. The power of the government to retire a government servant before the age of superannuation is only on the ground of "public interest". That is to say there must be a case that the government servant concerned suffers from inefficiency or incompetency. The safety valve has been provided in all service rules whether framed under the Government of India Act, 1935 or under the Constitutions of 1956, 1962 and 1973; one thing is common in the matter of causing premature retirement, that "the services of the public servant is considered not necessary in the interest of public service." In the instant case Ac: XII of 1974 does not contain the safety valve: and the affidavits filed by the government also do not put forward any ground that efficiency of the appellant was impaired, and the government considering it not desirable to being any charge of inefficiency or incompetency passed the order of retirement. It is true that the order does not contain any stigma, but the very fact that the appellant was selected out of a number of persons similarly placed, and consequently he has been deprived not only from continuing in the employment for the remaining period of his tern service but also from some of the service benefits accrued to him, makes out a case of punishment. In effect, whatever may be the phraseology used in terminating the service, it is punishment imposed on him, for it not only destroys his right to the post held by him, but also inevitably carries with it a stigma. Such a termination is "removal" within the meaning of Article 135 of the Constitution. Therefore the statute or Rule providing a mode of terminating service at the discretion of the authority without complying with Article 135 is unconstitutional." ~ Mr. Justice Ruhul Islam with Mejority View [Para: 115]

Important discussion

At the time of Dr. Nurul Islam's compulsory retirement there were at least 34 doctors who had completed the age of 25 years in service. But government chose the petitioner. So Section 9(2) empowering the Government to choose and pick in selecting a government servent for retirement is ultra vires the Articles 27 and 29 of the Constitution. ~ Factual Argument of Barrister Ishtiaq Ahmed 

No where in the Act was there any indication as to how the government would make selection from among the government servants who has attained the age of superannuation. ~ Argument of Barrister Ishtiaq Ahmed.

Direction

N/A

Decision

A government servant is retired with full pension after 25 years service not as a measure of punishment. It does not bear any stigma, nor any imputation is made or allegation is brought against the government servant when thus retired with pension. It cannot be ordered before completion of 25 years servant which is fairly a long period for earning pension. There may be many reasons for this kind of retirement. such as loss of efficiency, bad reputation, administrative exigencies or some other over-riding consideration relating to policy or administration. When the public servant is being rewarded with pension, he need not be informed of the reason in the same way as he is not required to give any reason when he himself opts to retire. Government cannot retain him in service even if his service is still required in 'public interest' after 25 years of service. A show cause notice is not necessary because when he enters the service he knows that he may be retired after 25 years service. A show cause notice for retirement will result in the starting of a departmental enquiry on specific allegation and if the allegation is proved he will be retired as a punishment, but at the sometime rewarded with a pension. If the allegation is proved he will better be dismissed or removed in which case no pension will be required to be paid. In such a case the system of retirement after 25 years or service may abolished and the age of superannuation itself may be reduced. The Indian Supreme Court has consistently held that premature retirement is not a punishment and it does not amount to removal, in a number of cases, particularly. So the appeal is allowed without any order as to costs. The decision of the High Court Division is set aside and the impugned order declared to be of no lawful authority.

Full Judgment

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