In the Supreme Court of Bangladesh High Court Division (Special Original Jurisdiction)
Writ Petition No. 1890 of 2011. In the matter of:
An application under Article 102(2)(a) read with Article 44 of the Constitution of the People’s Republic of Bangladesh. -And- In the matter of: Professor Muhammad Yunus.
…………… ….. Petitioner. -Versus- Bangladesh represented by the Secretary, Bank and Financial Institutions Division, Ministry of Finance and others.
.. ……………. Respondents.
Mr. Dr. Kamal Hossain with Mr. Mahmudul Islam, Mr. Rokanuddin Mahmud, Mr. Kamal-ul-Alam, Ms. Sara Hossain and Mr. Tamim Hossain Shawn, Advocates …… ….for the Petitioners. Mr. Mahbubay Alam, Attorney General, with Mr. M.K. Rahman, Additional Attorney General and Mr. Koronamoy Chakma, Deputy Attorney General.
..... for the respondents.
Heard on: 03.03.2011, 06.03.2011 & 07.03.2011. Order on: 08.03.2011.
Present: Mr. Justice Md. Mamtaz Uddin Ahmed And Mr. Justice Gobinda Chandra Tagore. ORDER
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The petitioner, Professor Muhammad Yunus has preferred the instant
writ petition under Article 102(2)(a) read with Article 44 of the Constitution
of the People’s Republic of Bangladesh against the Government of
Bangladesh, Bangladesh Bank, Grameen Bank and 13 others challenging the
order issued vide Memo. No.BRPE(R)760/2011 dated 27.02.2011,
Annexure-M by respondent No.3, General Manager, Bangladesh Bank
addressing to the Secretary, Bank and Financial Institutions Division,
Ministry of Finance and the order issued vide Memo. No.BRPD(R)
760/2011 dated 02.03.2011, Annexure-N by respondent No.3 addressing to
respondent No.4, Chairman of Grameen Bank.
In the impugned order dated 27.02.2011, it has been judged that it is
not valid for the petitioner to continue holding the post of Managing
Director of Grameen Bank and in view thereof he is not the lawful
Managing Director of the Bank as the age of superannuation being 60 years
under the Grameen Bank Service Regulations, he has been holding the post
even after exceeding 60 years of age by virtue of a resolution of the Board of
Directors of the Bank and in this regard no approval was obtained from
Bangladesh Bank as required under Section 14(1) of the Grameen Bank
Ordinance, 1983. A copy of this order was also endorsed to respondent No.4
for information and taking necessary measures.
The impugned order dated 02.03.2011 has been issued clarifying the
earlier order dated 27.02.2011 and reiterating that as in reappointing the
petitioner as the Managing Director of the Bank prior approval of
Bangladesh Bank was not obtained as required under Section 14(1) of the
Grameen Bank Ordinance, 1983, holding the post and discharging the duties
3
of Managing Director of Grameen Bank by the petitioner are not valid and
relieving the petitioner from discharging the duties of the Managing Director
for violating the provisions of Section 14(1) of the Ordinance. By this
impugned order respondent No.4 has also been advised to take appropriate
measures in this regard.
The petitioner’s case, in brief, is that the petitioner, aged 70, is the
Managing Director of Grameen Bank, a body established under the Grameen
Bank Ordinance, 1983 - shortly the Ordinance. In 2006, the petitioner
became the first Bangladeshi to be awarded the Nobel Peace Prize jointly
with Grameen Bank for their efforts to create economic and social
development by extending loans without collaterals or guarantees to its
borrowers by creating repayment responsibilities solely resting on individual
borrowers who are organised into groups.
In accordance with the provisions of the original Section 14 of the
Ordinance, the Ministry of Finance and Planning, Finance Division
(Banking Wing) by Notification dated 13.09.1983 appointed the petitioner as
the Managing Director of Grameen Bank with immediate effect and until
further order.
Subsequently, the Ordinance was amended in 1990 by the NË¡j£e hÉ¡wL
(pw−n¡de) BCe, 1990 [Grameen Bank (Amendment) Act, 1990] providing that
the Managing Director shall be appointed by the Board of Directors of
Grameen Bank with the prior approval of Bangladesh Bank.
Accordingly, the then Chairman of the Board of Directors of Grameen
Bank, shortly the Board, by a letter dated 14.08.1990 requested Bangladesh
Bank to accord approval of the petitioner’s appointment under Section 14(1)
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of the Ordinance stating that the Board, in its meeting held on 13.08.1990,
had, pursuant to Section 14(2) of the Ordinance, unanimously decided to
appoint the petitioner as the Managing Director of Grameen Bank. In
response thereto Bangladesh Bank vide its memo No.1238 dated 25.8.1990
granted approval to the appointment.
Following the approval from Bangladesh Bank, Grameen Bank issued
an appointment letter dated 29.08.1990 to the petitioner stating that he was
appointed as Managing Director pursuant to the resolution dated 13.08.1990
of the Board. Then the petitioner joined afresh as the Managing Director of
Grameen Bank with effect from 29.8.1990 and accordingly, Grameen Bank
by separate letters dated 30.8.1990 informed Bangladesh Bank and the
Ministry of Finance about the petitioner’s joining.
On 20.07.1999, in the 52nd meeting of the Board, the issue of
retirement of the petitioner was raised. The Board held a discussion with
reference to Section 14(1) of the Ordinance, and resolved that since the
power of appointment of the Managing Director had been vested in the
Board, and since the petitioner had been appointed by the Board, the age
limit for retirement as contained in the Grameen Bank Service Regulations,
1993, adopted by the Board would not be applicable to him.
Subsequently, in 2001, the Regulations regarding the appointment of
the Managing Director of Grameen Bank, shortly the Regulations-2001 was
framed and adopted pursuant to the 52nd Meeting of the Board held on
20.07.1999. Resolution No.52.09.2 adopted at the 52nd Meeting clearly
stated that these Regulations would apply to subsequent appointment of the
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Managing Director. Thus, the Regulaltions-2001 does not apply to the
petitioner, but only to any subsequent appointee as Managing Director.
In the Detailed Inspection Report prepared by Bangladesh Bank on
the basis of the accounts of Grameen Bank as of 31.12.1999, it was observed
that the approval of Bangladesh Bank had not been obtained regarding
Resolution No.52.9.1 adopted by the Board of Directors in its 52nd Meeting.
In response to the observation, Grameen Bank by its letter dated
20.06.2001 informed Bangladesh Bank that the Managing Director had been
appointed pursuant to the approval dated 28.09.1990 of Bangladesh Bank. In
the next Detailed Inspection Report based on the accounts as of 31.12.2001,
Bangladesh Bank did not make any observation regarding the appointment
or service of the petitioner as the Managing Director, rather paragraph No.32
of the report dealt with compliance with the earlier Detailed Inspection
Report, demonstrating that Bangladesh Bank had no further concerns on this
issue.
Thereafter, no further observation has been made nor has any
objection been raised by the Bangladesh Bank regarding the petitioner’s
holding the position of Managing Director from 2001 till the issuance of the
impugned order dated 27.2.2011.
In the 88th Meeting of the Board held on 02.09.2009, the petitioner
expressed his intention to retire from his office with effect from 01.07.2010
as he attained the age of 70. However, after deliberation on the petitioner’s
intention, the then Chairman of the Board declared that the petitioner’s
proposal for retirement had not been accepted by the Board. There having
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been no further resolutions of the Board, the petitioner has been continuing
to act as the Managing Director of the Bank.
In these circumstances, the petitioner became shocked when at the
92nd Meeting of the Board held on 28.01.2011, respondent No.4, recently
appointed Chairman of the Board abruptly sought to place the impugned
order dated 27.02.2011 for discussion thereon. The Board noted that the
letter containing the impugned order had not been addressed to Grameen
Bank nor was it in the agenda and so there was no scope to consider it. Then
on 02.03.2011 at about 1.00 p.m. the petitioner became further astonished to
receive through the Secretary of Grameen Bank a copy of the impugned
order dated 02.03.2011.
No notice had been served by any authority or person upon the
petitioner in respect of why he should be relieved from the position of
Managing Director of Grameen Bank, nor had he been given any
opportunity to make any representation or to be heard in this regard.
Respondent No.2 had in the meantime formed a Review Committee
with terms of reference which included examination of various aspects of the
operations of Grameen Bank. The impugned orders have been issued despite
pendency of the inquiries by the Review Committee demonstrating gross
mala fides. Having regard to the entire background, it is clear that the
petitioner continues to be the Managing Director of Grameen Bank in
accordance with law.
Dr. Kamal Hossain, learned Advocate appearing for the petitioner
submits that the petitioner was appointed Managing Director with the prior
approval of Bangladesh Bank under Section 14(1) of the Ordinance and the
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Board being the appointing authority, he has been continuing in the office by
virtue of its resolution No.52.9.1 dated 20.07.1999, which allows him even
to hold the post until the Board decides otherwise and in such view of the
matter, the impugned orders are liable to be declared to have been issued
without lawful authority and are of no legal effect.
He also submits that since the Board is vested with the power of
appointment of Managing Director under Section 14(1) and the power of
making regulations under Section 36 of the Ordinance, the Service
Regulations, 1993 and the Regulations, 2001 are not applicable to the
petitioner’s service as having accepted the view that the petitioner being
appointed by the Board, Grameen Bank Service Regulations, 1993 would
not apply to his service, the Board adopted resolution No.52.9.2 dated
20.07.1999 as to the effect that the Regulations to be made regarding the
appointment of Managing Director would be applicable only to any
subsequent appointment.
He then submits that Bangladesh Bank has a very limited role to play
under Section 14(1) of the Ordinance only to grant prior approval to the
proposed appointment of the Managing Director of Grameen Bank, which it
has done, but the Ordinance having not otherwise conferred any power to
Bangladesh Bank to dictate or determine the terms and conditions of the
service of the Managing Director including the age of retirement, it has
exceeded its authority.
He further submits that the petitioner is a highly respected individual,
who has earned both national and international reputation for his own as
well as for the nation for his works and Grameen Bank is such a unique
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institution of which we are proud to say that it is almost owned by poor
women from across rural Bangladesh, who have changed their lives and
those of their children and communities and thus the same has helped
change the face of Bangladesh and millions of lives towards their
betterment, but by the impugned orders the Nobel Peace Laureate has been
removed from his office against thousands years of civilization and public
interest and as such the petitioner should be treated not only in accordance
with law, but also with honour, respect and dignity inasmuch Grameen Bank
has come to its present position with the deposited money of more than 80
lakh women, who are the shareholders and owners of the institution and only
they can decide whether the founder of the institution will remain in the
office or not.
Mr. Mahbubey Alam, learned Attorney General for Bangladesh,
having appeared in assistance of this Court submits that as per the
Ordinance, Service Regulations made thereunder and his appointment letters
dated 13.9.1983 and 29.09.1990, the petitioner as the Managing Director
was a regular employee of Grameen Bank and in view thereof, the
Ordinance and the Service Regulations were applicable to his service like
those of other employees of the Bank and therefore, he had no legal right to
hold the post and discharge the duties of the Managing Director after expiry
of his 60th year of age, which is the age of superannuation under the Service
Regulations, 1993.
He also submits that resolution No.52.9.1 dated 20.07.1999 adopted
by the Board at its 52nd Meeting allowing the petitioner to continue holding
the post of Managing Director even after 60 years of his age and the
9
Regulations, 2001 made by the Board providing, amongst other, that there
shall not be any age limit in the service of the Managing Director nor shall
the Grameen Bank Service Regulations be applicable thereto, are not only
conflicting with the Service Regulations, 1993 but are also inconsistent with
the provisions of Sections 14 and have been made by violating the
provisions of Section 36 of the Ordinance and therefore, the same being
ultra vires the Ordinance and Service Regulations, 1993, the petitioner
cannot be legally allowed further to cling on to the post at and after the age
of 70 years.
He further submits that since by notifications under Section 4(4) of
the Ordinance, Sections 44 and 45 of the Bank Companies Act, 1991 have
been made applicable to Grameen Bank and since the petitioner illegally
continued holding the post of Managing Director after the retirement age of
60 years, which was beyond the scope of the Ordinance and the Regulations
made thereunder, Bangladesh Bank has rightly and lawfully issued the
impugned orders in exercise of its statutory power and hence, the writ
petition is liable to be rejected summarily.
Having referred to Section 16 of the General Clauses Act, 1897, Mr.
Mahmudul Islam, learned Advocate, appearing on behalf of the petitioner,
submits that the Board being the appointing authority of the Managing
Director under Section 14(1) of the Ordinance, Bangladesh Bank had no
power to dismiss or relieve the petitioner from his service.
He further submits that having allowed the petitioner to function as
the Managing Director for about 11 years even after expiry of the 60th year
of his age, the respondents impliedly approved his appointment and
10
thereupon he acquired vested right to perform the functions of the Managing
Director until the Board would decide otherwise and as such now the
respondents are estopped from relieving the petitioner from his post on the
plea of expiry of his retirement age upon invoking Section 14 of the
Ordinance or Sections 44 and 45 of the Bank Companies Act, which not
only constitutes malice in law, but also malice in fact inasmuch as the
impugned orders have been issued violating the Principle of Natural Justice
as the petitioner has not been given any chance of being heard in this regard.
Mr. Rokanuddin Mahmud, learned Advocate adopts the submissions
made by Dr. Kamal Hossain and Mr. Mahmudul Islam on behalf of the
petitioner and having placed the writ petition page by page he makes
strenuous submissions.
Having referred to Grameen Bank’s letter dated 20.06.2001,
Annexure-J given to Bangladesh Bank in explanation of its Detailed
Inspection Report based on the account as of 31.12.1999 and the
Compliance Report dated 16.01.2002, Annexure-O, Mr. Rokanuddin
Mahmud submits that the dispute over the petitioner’s appointment being
already disposed of, the same has long since been approved by conduct of
the respondents and as such they cannot further raise the same question and
relieve the petitioner from his duties on the same excuse.
Referring to the case of United Commercial Bank Ltd and another Vs
Rahimafrooz Batteries and others reported in 7 BLC (AD) 73 he also
submits that both the Service Regulations, 1993 and Regulations, 2001 being
subordinate legislation under the Ordinance, they are not retrospectively
applicable to the petitioner’s service, but the age of retirement being not
11
mentioned in both the Ordinance and his appointment letter dated
29.08.1990, he has the right to continue his service as long as he wishes and
therefore, the impugned orders are liable to be declared to have been issued
without lawful authority.
He further submits that none of the 4 (four) conditions enumerated in
Section 45 of the Bank Companies Act, 1991 attracts the purported reasons
for issuance of the impugned orders and as such the impugned orders being
issued without lawful authority, the petitioner has prima facie an arguable
case and therefore, a Rule Nisi should be issued.
In reply to the submissions made by the learned Advocates for the
petitioner, the learned Attorney General submits that it is a long established
principle of law that there can be no estoppels or waiver against any
statutory provisions and as such it does not matter for how long the
petitioner has been grasping the post – since he has long before attained the
age of superannuation and has no further appointment, let alone any prior
approval thereof as required by law, he has no legal right to challenge the
impugned orders.
He further submits that each of the Government functionaries is to
perform its functions in accordance with the relevant law, but in spite of
repeated objection raised by Bangladesh Bank as evident from its reports
annexed to the writ petition, the Grameen Bank authority, of which the
petitioner was the Chief Executive, did not take any effective steps in this
regard and in such constraining situation, Bangladesh Bank had to issue the
impugned order in the public interest as well as for ensuring proper
management of Grameen Bank, which falls within the scope of Sub-Section
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(1)(Ka) and (1)(Gha) of Section 45 of the Bank Companies Act, 1991 and as
such the writ petition having prima facie no merit it should be summarily
rejected.
We have perused the writ petition along with the annexures thereto
and heard the learned Advocates for the petitioner and learned Attorney
General as well.
Admittedly, the petitioner, Professor Muhammad Yunus is aged about
70 years, he has been holding the post of Managing Director of Grameen
Bank and he jointly with Grameen Bank was awarded the Nobel Peace Prize
in 2006. But it appears from the writ petition that any question of the
propriety or legacy of the Nobel Prize is in no way involved in the writ
petition. The crux of the writ petition is that whether the petitioner had/has
any legal right under the Grameen Bank Ordinance, 1983 to continue
holding the post of Managing Director even after expiry of the 60th year of
his age.
It is also another admitted fact that Grameen Bank was established
under the Grameen Bank Ordinance, 1983. It appears from the pre-amble of
the Ordinance that the purposes of establishing the Bank were to provide
credit facilities and other services to landless persons in the rural areas and
to provide for matters connected therewith or incidental thereto.
The background of foundation or establishment of the Bank has been
delineated in the Explanation annexed to Section 37 of the Ordinance. The
Explanation says that initially a project namely “Grameen Bank Project”
was sponsored by the Rural Economics Programme of the Department of
Economics, University of Chittagong, in 1976 in village Jobra, Police
13
Station- Hathazari, in the District of Chittagong and subsequently adopted
by Bangladesh Bank and participated by new Banks and Bangladesh Krishi
Bank.
Section 37 of the Ordinance envisages that notwithstanding anything
contained in any other law for the time being in force or in any agreement or
contract or other instrument, upon the Establishment of the Bank, the
Grameen Bank Project ceased to exist and all assets, rights, powers,
authorities and privileges and all properties movable and immovable, and all
documents of whatever nature relating thereto, of the project are stood
transferred to, and vested in, the Bank. It further envisages, inter alia, that
all debts, liabilities and obligations incurred, all contracts entered into and all
matters and things engaged to be done by, with or for, the project before
establishment of the Bank are deemed to have been incurred, entered into or
engaged to be done by, with or for, the Bank.
Apart from Section 37 of the Ordinance and the Explanation annexed
thereto, it also appears from other provisions of the Ordinance that the
Ordinance as a whole does not recognise the petitioner or anybody else as
the founder of Grameen Bank nor does it confer any special right or
privilege or any sorts of immunity to the petitioner; rather, Section 14(4) of
the Ordinance defines ‘The Managing Director’ as ‘the whole-time officer
and the chief executive of the Bank’ i.e. the Managing Director as the chief
executive is also an employee of the Bank. The petitioner’s status as the
Managing Director was more clarified in Clause 2.0 of his last appointment
letter dated 29.08.1990 as “2.0 Avcwb MÖvgxb e¨vs‡Ki GKRb wbqwgZ Kg©KZ©v wnmv‡e
we‡ewPZ n‡eb Ges wbqwgZ Kg©KZ©v‡`i Rb¨ e¨vs‡Ki cÖPwjZ mKj my‡hvM myweav cv‡eb|” (You
14
shall be treated as a regular employee of Grameen Bank and receive all usual
benefits payable by the Bank to its regular employees). Having expressly
accepted the condition along with other conditions enumerated in the
appointment letter [“Avwg D‡j−wLZ kZ©vejx MÖn‡Y m¤§Z AvwQ|” (I agree to accept all
the said conditions)] the petitioner joined the service on 29.08.1990 at the
monthly salary of Taka-6000-/ along with other benefits and allowances.
The petitioner was first appointed Managing Director on 13.09.1983
by the Government in the Ministry of Finance in exercise of its power under
the original Section 14 of the Ordinance with immediate effect and until
further order and on the conditions that his terms and conditions of
appointment would be guided by the Implementation Division’s
O.M.NO.MF/ID/V/N(A)-16/78/1199 dated 11.9.1980. The original Section
14 provided as follows:
“(1) There shall be a Managing Director of the Bank who shall be
appointed by the Government.
(2) The Managing Director shall be the Chief Executive of the
Bank.”
Subsequently, the Ordinance was amended in 1990 by the NË¡j£e hÉ¡wL
(pw−n¡de) BCe, 1990 [Grameen Bank (Amendment) Act, 1990]. The amended
Section 14 provides as follows:
“14.(1) There shall be a Managing Director of the Bank who shall
be appointed by the Board with the prior approval of the Bangladesh Bank.
(2)The Board shall constitute a Selection committee consisting of not
less than three and not more than five members for the purpose of selecting
a candidate for appointment as Managing Director.
15
(3) In selecting a candidate for appointment as Managing Director,
preference shall be given to persons having knowledge and experience in
rural economy or in the field of grameen banking business.
(4) The Managing Director shall be the whole-time officer and the
chief executive of the Bank and shall serve under the Bank on such terms
and conditions as may be prescribed by regulations.
(5) If a vacancy occurs in the office of the Managing Director or if
the Managing Director is unable to discharge the functions of his office on
account of absence, illness or any other cause, such officer of the Bank as
may be prescribed by regulations shall discharge the functions of the
Managing Director until a new Managing Director appointed to fill such
vacancy enters upon his office or until the Managing Director resumes the
functions of his office, as the case may be.”
Thereafter, in order to fulfill the exigency, the Board in its meeting
dated 13.08.1990 unanimously adopted a resolution in accordance with
Section 14(2) of the Ordinance to appoint the petitioner as the Managing
Director of the Bank subject to approval of Bangladesh Bank. Accordingly,
the Chairman of the Bank by a letter dated 14.08.1990 sought for approval
of Bangladesh Bank to the resolution as required under Section 14(1) of the
Ordinance. Bangladesh Bank granted the approval by its memo dated
25.8.1990 which runs as follows:-
−Qu¡ljÉ¡e, f¢lQ¡me¡ foÑc, NË¡j£e hÉ¡wL, ¢jlf¤l-2, Y¡L¡-1210z ¢fËu j−q¡cu, hÉ¡hØq¡fe¡ f¢lQ¡mL ¢e−u¡N fËpw−Nz Ef−l¡J² ¢ho−u Bfe¡−cl 14-8-1990 a¡¢l−Ml Nh/fL/ph/90-3041
ew fœ Hl fË¢a cª¢ø BLoÑZ Ll¢Rz
NË¡j£e hÉ¡w−Ll hÉhÇq¡fe¡ f¢lQ¡mL f−c Se¡h j¤q¡Çjc CEe¤p Hl
¢e−u¡−Nl hÉ¡f¡−l h¡wm¡−cn hÉ¡wL Hl ®L¡e Bf¢š ®eCz H fËpw−N E−õMÉ ®k
16
NË¡j£e hÉ¡wL AdÉ¡−cn 1983 Hl 14(4) d¡l¡l ¢hd¡e Ae¤k¡u£ hÉÉw−Ll hÉhØq¡fe¡
f¢lQ¡mL Hl Q¡L¥l£l naÑ¡hm£ EJ² AdÉ¡−cn Ae¤k¡u£ fËZ£a ®l…−mne à¡l¡
¢eu¢ÇHa q−hz EJ² AdÉ¡−c−n 36 d¡l¡ Ae¤k¡u£ f¢lQ¡me¡ foÑc ®l…−mne fËZue
Ll−he Hhw A¢g¢pu¡m ®N−S−V fËL¡¢na qh¡l fl a¡ L¡kÑLl q−hz H hÉÉf¡−Rl
fË−u¡Se£u fc−rf NËq−el SeÉ Bfe¡−cl fl¡jnÑ ®cu¡ k¡−QR z EJ² ®l…−mn−e
®kph naÑ¡hm£ A¿¹i¨J² q−h a¡ haÑj¡e naÑ¡hm£l Ae¤l²f e¡ q−m ®p−r−œ
hÉhØq¡fe¡ f¢lQ¡m−Ll ¢e−u¡−Nl ®r−œ h¡wm¡−cn hÉ¡w−Ll f¤exAe¤−j¡ce fË−u¡Se
q−hz
Bfe¡l ¢hnÄÙ¹,
(j¢je¤m qL ®M¡¾cL¡l) Ef-jq¡hÉhØq¡fL
From the above it appears that the approval was granted on the
following conditions:-
(a) As per section 14(4) of the Ordinance, the terms and conditions
of his service shall be regulated by the regulations to be made in
accordance with the Ordinance;
(b) The Board shall make the regulations in accordance with the
provisions of Section 36 of the Ordinance and the regulations
shall come into force after the same is published in the official
Gazette;
(c) If the terms and conditions to be inserted in the regulations are
not consistent with the present terms and conditions, it shall
require further approval of Bangladesh Bank to the appointment
of Managing Director.
After obtaining the approval, the Bank vide its Memo dated
29.08.1990 issued an appointment letter in favour of the petitioner for the
post of Managing Director on as many as 12 (twelve) conditions. It was
stated in the appointment letter that the petitioner was appointed Managing
Director in pursuance of the resolution adopted by the Board at its meeting
dated 13.08.1990 and by the appointment letter he was also given an option
17
to join the post if the said conditions were acceptable to him. The petitioner
having noted on the appointment letter his consent to the said conditions
submitted his joining letter dated 29.08.1990, which was accepted on
29.08.1990 and accordingly, he joined the service on the same day. Then the
Bank by separate letters dated 30.8.1990 informed Bangladesh Bank and the
Ministry of Finance about the petitioner’s joining.
From the above, we find that the procedure maintained in appointing
the petitioner as the Managing Director in 1990 was the proper procedure as
required by Section 14 of the Ordinance.
Subsequently, in 1993 the Board, in exercise of its power under
Section 36(1) of the Ordinance, made the service regulations, namely “ MÖvgxY
e¨vsK PvKzix wewagvjv”( Grameen Bank Service Regulations). The regulations
was published in the official Gazette on 01.03.1993 and as per Section 36(2)
of the Ordinance, the regulations came into force upon such publication i.e.
on and from 01.03.1993. The regulations have already been referred to
above as the Service Regulations, 1993.
Regulation 1.2 of the Service Regulations, 1993 provides that the
regulations shall be applicable to all the permanent workers (mKj ’vqx Kg©x) of
Grameen Bank appointed in Bangladesh; provided that to whom the
regulations shall not apply, if any provision of the regulations is specifically
mentioned therein as their terms and conditions of service to that extent of
the regulations shall be applicable to them. Regulation 1.2 runs as follows:
“1.2 GB wewagvjv evsjv‡`‡k wb‡qvMcÖvß MÖvgxY evs‡Ki mKj ¯’vqx Kg©x‡`i Rb¨
cÖ‡hvR¨ n‡e| Z‡e, huv‡`i Rb¨ GB wewagvjv cÖ‡hvR¨ n‡e bv, Zuv‡`i †ejvq PvKzixi
kZ© wnmv‡e GB wewagvjvq wKQz wbw ©ó K‡i D‡j −L _vK‡j Zv cÖ‡hvR¨ n‡e|”
18
As per the definition of worker (Kg©x) under Regulation 2.1(Cha)
‘worker’ means all permanent and temporary officers and employees of the
Bank [2.1(P) ÒKg©xÓ ej‡Z evs‡Ki mKj ¯’vqx I A¯’vqx Kg©KZ©v I Kg©Pvix‡K eySv‡e|]. We
have already found that as per Section 14(4) of the Ordinance the Managing
Director is also an officer of the Bank. From the four corners of the
Regulations, 1993 it does not appear that any of the provisions of the
Regulations is not applicable to the service of the Managing Director.
Moreover, Section 14(4) specifically envisages that the Managing Director
shall serve under the Bank on such terms and conditions as may be
prescribed by regulations.
Therefore, in view of the status of the Managing Director as envisaged
in Section 14(4) of the Ordinance, the definition of worker (Kg©x) under
Regulation 2.1(Cha) and the provisions of Regulation 1.2 of the Service
Regulations, 1993, we hold that the Managing Director as a whole-time
officer being a worker (Kg©x), the Service Regulations, 1993 is also applicable
to the service of the Managing Director of Grameen Bank.
It has been argued on behalf of the petitioner that the Service
Regulations, 1993 cannot be applied to the petitioner’s service with
retrospective effect. But at the same time it was argued that the petitioner
has been holding the post after attaining 60th year of his age by virtue of the
resolution dated 20.07.1999. But the resolution dated 20.07.1999 is later in
point time than the Service Regulations, 1993. So, the petitioner cannot be
allowed to approbate and reprobate at the same time. No
subordinate/delegated legislation can be made before enacting or
19
promulgating, as the case may be, its parent law. Therefore, if the parent law
expressly provides that any act done or proceeding taken under the parent
law shall be guided or regulated by the subordinate law to be made under the
parent law and if any such act is done or proceeding is taken before making
the subordinate law, it is not reasonable to say that the subordinate law
cannot be applied to the act done or proceeding taken under the parent law.
But once any subordinate law is made, no further subordinate law can be
made by way of amending the existing subordinate law or otherwise, taking
away any vested right acquired under the existing subordinate law. In the
present case, Section 4(4) of the Ordinance expressly provides that the
Managing Director shall serve under the Bank on such terms and conditions
as may be prescribed by regulations, which contemplates that once such
regulations are made they shall apply to the service of the Managing
Director. Therefore, the Service Regulations, 1993 made for the first time in
exercise of the power under Section 36(1) of the Ordinance is also
applicable to the petitioner’s service as per the dictate of Section 14(4) of the
Ordinance. In United Commercial Bank Ltd and another Vs Rahimafrooz
Batteries and others reported in 7 BLC (AD) 73 it was held that subordinate
legislation cannot give retrospective effect unless authorised by the parent
law. Therefore, the above decision referred to on behalf of the petitioner
rather supports the retrospective effect of the Service Regulations, 1993.
Moreover, it was one of the conditions of the prior approval dated
25.08.1990 of Bangladesh Bank to the petitioner’s last appointment dated
29.08.1990 that his service would be regulated by the regulations to be made
in accordance with the Ordinance. Since the petitioner having accepted the
20
condition joined the service and, enjoyed advantages and benefits
thereunder, he is now estopped from raising any objection that the
regulations shall not apply to his service with retrospective effect.
It appears from the writ petition that after making the Service
Regulations, 1993, the Bank did not further seek for any approval of
Bangladesh Bank to the petitioner’s appointment, nor did Bangladesh Bank
raise any objection in this regard till the petitioner attained the age of
retirement. These facts give rise to a reasonable presumption that the
provisions of the Service Regulations, 1993 being consistent with the
conditions of the prior approval dated 25.08.1990 of Bangladesh Bank to the
petitioner’s appointment, no further approval was necessary as per the
conditions of the approval dated 25.08.1990.
Regulation 50.1 of the Service Regulations, 1993 provides that for
retirement from service the age of workers shall be limited up to 60 years i.e.
a worker may retire even before 60 years of his age, but on expiry of the 60th
year of age he must go on retirement. Therefore, any worker (Kg©x) of
Grameen Bank including the Managing Director is not competent and has no
legal right to continue his service in the Bank after the expiry of the age of
retirement at the 60th year.
But the Board in its 52nd meeting held on 20.7.1999 adopted a
resolution to the effect that since in appointing the petitioner as the
Managing Director no age limit was fixed in the appointment letter, he
would continue holding the post until the Board would decide otherwise. It
appears from the minutes of the 52nd meeting, Annexure-F that basis of the
resolution was the opinion of the-then Chairman of the Board that since the
21
power of appointment of the Managing Director had been vested in the
Board, and since Professor Yunus had been appointed by the Board, the age
limit for retirement as contained in the Service Regulations, 1993 would not
be applicable to his service.
Having accepted the above opinion of the Chairman of the Board, the
Board has equated the resolution with the regulations. The Service
Regulations, 1993 is a subordinate legislation under the Ordinance, but the
resolution is simply a decision having no force of a law. Though the
regulations making powers have been vested in the Board under Section
36(1) of the Ordinance, any resolution or decision adopted by the Board is
not a regulation and has no force of any law. The intention, purpose and
procedure of making, and the content, structure and implications of any
subordinate or delegated legislation are quite different from those of a
resolution or decision. Any subordinate or delegated legislation is made in
exercise of the power conferred to by an Act of Parliament or by an
Ordinance having the force of an Act of Parliament. It is made with a
general or wider purpose and intention in the form and within the structure
of an Act of Parliament with a general binding effect upon all concerned or
the subject-matter. Usually, in order to give effect to a delegated legislation,
the publication thereof is required by the parent law. But in a democratic
society where rule of law prevails, which is a basic feature of its
Constitution, it requires that a law governing the individuals must be
expressed and known to the individuals. Section 36(2) of the Ordinance
provides that all regulations made under this section shall be published in the
official Gazette and shall come into force upon such publication. The
22
resolution dated 20.07.1999 was neither given the status of any regulation
nor was it ever published in the official Gazette in the form of a regulation.
Therefore, it had never any force of a law. It is not conceived in any judicial
system, which upholds rule of law that by any resolution or decision any law
can be repealed, amended, suspended and made applicable or inapplicable.
Therefore, the resolution dated 20.07.1999 had no impact on the Service
Regulations, 1993. Nevertheless, had the petitioner was within the age limit,
even then such alternation of the terms and conditions of the petitioner’s
service by the resolution dated 20.07.1999 obviously required prior approval
of Bangladesh Bank as per Section 14(1) of the Ordinance and as per the
conditions of the prior approval dated 25.08.1990. Therefore, the resolution
adopted by the Board and submission made by the learned Advocates for the
petitioner in this regard are misconceived, unreasonable and irrational. The
following observation made by H.W.R.Wade and C.F.Forsyth in their book
‘Administrative Law, Ninth Edition’ at page 157 is relevant to the facts and
circumstances of the present case-
“It has been recognized that ‘the [judicial review] courts [can] play a
role in overseeing the decision-making process [of regulators] from
the perspective of rationality and legality, and ensuring that
decisions are made which are not simply pandering to special
interests at the expense of wider public policy goals.”
We have found that the prior approval dated 25.08.1990 was obtained
through proper procedure as required under Section 14(1) of the Ordinance.
But after alteration of the terms and conditions of the petitioner’s service by
the resolution dated 20.07.1999, even no proposal for such approval was
23
placed before Bangladesh Bank and consequently, no further appointment
was ever made and as such the plea of ‘implied approval’ or ‘approval by
conduct’ to such imaginary appointment has no basis.
In view of the discussion made above, we find that the resolution
adopted by the Board in its 52nd meeting held on 20.07.1999 being contrary
to the provisions of Section 14(1), (4) of the Ordinance and the provisions of
Regulation 1.2 read with Regulation 50.1 of the Service Regulations, 1993,
the same did not give any legal right and status to the petitioner to continue
holding the post of the Managing Director after expiry of the age of
superannuation at the 60th year.
In 2001, the Board made the Regulations, 2001 regarding the terms
and conditions of the service of the Managing Director. It provides, inter
alia, that the appointment of the Managing Director shall be on contract
basis, the Board may attach further qualifications in addition to the
qualifications prescribed under Section 14(3) of the Ordinance, the Grameen
Bank Service Regulations shall not apply to the Managing Director and the
term of his service shall be 5 (five) years, but there shall not be any age
limit. Regulations, 2001 also does not provide that in altering the terms and
conditions of the service of the Managing Director any prior approval of
Bangladesh Bank would be required as per Section 14(1) of the Ordinance.
We have already found that as per Section 14(4) of the Ordinance, the
Managing Director is also a whole-time officer of the Bank and the Service
Regulations, 1993 is also applicable to his service. The Regulations, 2001
has arbitrarily differentiated the Managing Director from other officers of
the Bank and the same has been made neither in addition to nor upon
24
amending the Service Regulations, 1993, but there cannot be two conflicting
laws governing the same individuals, body or authority. We have already
found that the Service Regulations, 1993 is a valid law. Section 36(1) of the
Ordinance envisages that the regulations made by the Board shall not be
inconsistent with the provisions of the Ordinance and as such the
Regulations, 2001 being inconsistent with the provisions of Section 14(1),
(3), (4) is not a valid law and has no legal force.
It appears from the writ petition that it is the petitioner’s specific case
that neither the Service Regulations, 1993 nor the Regulations, 2001 is
applicable to his service and he has been holding the post even after expiry
of his retirement age by virtue of the resolution dated 20.07.1999. From the
Detailed Inspection Reports based on the accounts as of 31.12.1999,
Annexure-I and as of 31.12.2001, Annexure-K and from the Compliance
Report dated 20.06.2001, Annexure-J it appears that the plea on the
resolution dated 20.07.1999 was being placed before the respondents since
31.12.1999. It also appears from the writ petition that there are no other
statements, representations or documents, which were not brought to the
knowledge of the respondents before issuance of the impugned orders.
Therefore, we find that for not issuing any notice before issuance of the
impugned orders the petitioner was not prejudiced. In addition thereto, the
fact of holding the post by the petitioner even after expiry of his retirement
age being admitted, service of any notice on the same issue would not serve
any fruitful purpose and as such it was not reasonably required by the
Principle Natural Justice. Moreover, holding of the post by the petitioner
even after attaining the age of superannuation being not otherwise justified,
25
non-service of notice has not prejudiced the petitioner. But it is an
established principle of law that in order to sustain any complaint of
violation of the Principle of Natural Justice it has to be established that
prejudice has been caused to the complainant. Hence, the complaint of the
petitioner with regard to violation of the Principle of Natural Justice does not
sustain.
We have already found that the petitioner has been holding the post
for about 10 years violating the statutory provisions of Sections 14 and 36 of
the Ordinance and Regulation 50.1 of the Service Regulations, 1993. But it
is a long established principle of law that there can be no estoppels or waiver
against any statutory provisions. In this regard another long established
principle of law is that where there is inherent illegality or lack of
jurisdiction, mere lapse of time or even consent thereto cannot validate or
confer jurisdiction to it. Therefore, the submissions made in this regard on
behalf of the petitioner are not tenable in law.
It is evident from the Detailed Inspection Reports and other relevant
documents annexed to the writ petition that Bangladesh Bank repeatedly
raised objection to the illegal holding of office by the petitioner, but the
Grameen Bank authority, of which the petitioner was the Chief Executive,
did not take any effective steps in this regard. Questions arises whether in
such circumstances Bangladesh Bank is helpless and undone or has any
power to exercise under Section 45 of the Bank Companies Act, 1991 read
with Sections 4(4) and 14(1) of the Ordinance. In exercise of the power
under Section 4(4) of the Ordinance the Government by the Notification
dated 03.06.2003 made Section 45 of the Bank Companies Act, 1991 to
26
Grameen Bank. Section 45 of the Bank Companies Act, 1991 runs as
follows:
Ò45| (1) evsjv‡`k e¨vsK hw` GB g‡g© mš‘ó nq †h-
(K) Rb ^v‡_©, ev
(L) gy ªvbxwZ Ges e¨vsK-bxwZi DbœwZ weav‡bi Rb¨, ev
(M) †Kvb e¨sK-‡Kv¤úvbxi AvgvbZKvix‡`i ^v‡_©i cwicš’x ev evsK ‡Kv¤úvbxi
^v‡_©i c‡¶ ¶wZKi Kvh©Kjvc cÖwZ‡iva Kivi Rb¨; ev
(N) †Kvb e¨vsK-‡Kv¤úvbxi h_vh_ e¨e ’vcbv wbwðZ Kivi Rb¨,
mvaviYfv‡e mKj e¨vsK-‡Kv¤úvbx‡K, A_ev we‡kl †Kvb e¨vsK-‡Kv¤úvbx‡K
wb‡ ©k cÖ vb Kiv cÖ‡qvRb, Zvnv nB‡j evsjv‡`k e¨vsK h_vh_ wb‡`©k Rvix Kwi‡Z
cvwi‡e; Ges mswk −ó e¨vsK-‡Kv¤úvbx D³ wb‡ ©k cvjb Kwi‡Z eva¨ _vwK‡e|
(2) evsjv‡`k e¨vsK † ^”Qvq A_ev Dnvi wbKU †ckK…Z †Kvb Av‡e`‡bi
cwi‡cÖw¶‡Z Dc-aviv (1) Gi Aax‡b cÖ Ë wb‡ ©k evwZj ev cwieZ©b Kwi‡Z cvwi‡e;
Ges GBiƒc evwZjKiY ev cwieZ©b kZ©mv‡c¶ nB‡Z cvwi‡e|Ó
Under Sub-Section (1)(Ka) and Sub-Section (1)(Gha) of the Section
45 of the Bank Companies Act, 1991 Bangladesh Bank enjoys the authority
to pass any direction on all or any of the Bank-Companies in the public
interest or for ensuring proper management of the Bank-
Companies/Company respectively, if it is so satisfied. Section 14(1) of the
Ordinance contemplates that nobody can be appointed Managing Director of
Grameen Bank without prior approval of Bangladesh Bank i.e. without prior
approval of Bangladesh Bank nobody can hold the post of Managing
Director of Grameen Bank. But it is unreasonable to say that if anybody is
appointed or allowed to hold the post of the Managing Director without such
prior approval, Bangladesh Bank has nothing to do but to be an onlooker. In
order to maintain proper management, administrative discipline and rule of
law and thereby to secure public interest, Bangladesh Bank certainly can
pass necessary directions and take effective measures in exercise its powers
27
under Section 45 of the Bank Companies Act, 1991 and Section 14(1) of the
Ordinance preventing such unauthorised activities and not allowing to
continue such holding of the post. Even as per Section 16 of the General
Clauses Act, 1897, the power of Bangladesh Bank under Section 14(1) of
the Ordinance to grant prior approval to the appointment of Managing
Director also includes its power to withdraw such approval.
Let it be assumed for the sake of argument that technically
Bangladesh Bank has committed an illegality in passing the impugned order
relieving the petitioner, but even then this Court may not exercise its
discretion in favour of the petitioner, if it is found that by quashing the
illegal order another illegality would be fostered. Unfortunately, we have
already found that the petitioner was illegally sticking to the post of
Managing Director for about 10 years even after expiry of his age of
retirement. Therefore, we find that discretion of this Court should be
exercised in favour of interference in such a case where it is necessary to
prevent continuance perpetuation of illegality or usurpation of an office.
The basis to approach the High Court Division for an appropriate writ
is only to enforce or protect any fundamental or legal and justiciable right. In
other words, any person having no fundamental or legal and justiciable
rights or any person whose such rights have not infringed or threatened to be
infringed cannot invoke Article 102 of the Constitution. Similarly, a squatter
or a trespasser or a usurper cannot maintain a writ petition under Article 102.
Thus no justiciable right accrues to an officer to be retained in service after
he attains the age of superannuation.
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This Court, in exercise of its power of judicial review should not
legally entertain an application unless it considers that the applicant has a
sufficient interest, otherwise expressed as ‘standing’ or locus standi, in the
matter to which the application relates. The justification for such a
requirement lies in the need to limit challenges to administrative decision
making to genuine cases of grievance and to avoid unnecessary interference
in the administrative process by those whose objectives are not authentic.
We have already found that the petitioner had/has no legal right and
status to hold the post of Managing Director of Grameen Bank even after
expiry of his age of retirement at the 60th year. Therefore, he has no legal
right or even no locus standi to challenge the impugned orders.
In view of the above, the writ petition is summarily rejected.
However, there would be no order as to costs.
(Md. Mamtazuddin Ahmed) (Gobinda Chandra Tagore)