Appellate Division
Bangladesh and others v Md. Mahboob Murshed and others
Civil Appeal 77/2022 · Appeal allowed; High Court judgment set aside · Decided 11 March 2026
The respondent, a judicial officer who resigned as Additional District Judge in 2011 after 19 years' service, obtained the Ministry of Law's approval for a 61% pension, but the Audit and Accounts Officer returned the pension case, citing rule 300(a) of the Bangladesh Service Rules, Part-I, under which resignation entails forfeiture of past service. The High Court Division declared rule 300(a) ultra vires articles 27 and 31 so far as it forfeited pension on resignation, treating forfeiture as a punishment equating resignation with dismissal. On the Government's appeal, the Appellate Division held that resignation is not a punishment and its consequence is a disentitlement, so no discrimination arose. The Public Servants (Retirement) Act, 1974 recognises pension only on retirement, the 2018 Act was not retrospective, and the 2015 pension notification's explanation did not cover resignation. The ministry's approval, lacking legal mandate, created no right. The respondent's article 104 application was rejected and the appeal allowed.
- Whether rule 300(a) of the Bangladesh Service Rules, Part-I, so far as it provides for forfeiture of past service on resignation, is ultra vires articles 27 and 31 of the Constitution.
- Whether a judicial officer who resigned after 19 years of service is entitled to pension under the pension table in the Finance Division memo of 04.11.1989 and notification of 14.10.2015.
- Whether a ministry's approval of pension without legal mandate created a right that could not be withdrawn without notice.
- Rule 300(a) of the Bangladesh Service Rules, Part-I, so far as it relates to forfeiture of past service on account of resignation, is not ultra vires the Constitution.
- Resignation is not a punishment, since it carries no charge, imputation or stigma, and forfeiture of past service on resignation is a disentitlement rather than a penalty; using resignation, dismissal and removal in the same rule does not place them at par, so articles 27 and 31 are not violated.
- Under the Public Servants (Retirement) Act, 1974, pension arises on retirement under section 4 or section 9(1) or (2), and the Act does not recognise resignation as giving entitlement to pension; section 10 cannot be extended to do so.
- The Sarkari Chakri Ain, 2018 has no retrospective effect and did not apply to a cause of action arising in 2015.
- The explanation to the pension table in the notification dated 14.10.2015 is an integral part of it and confines pension for 5 to 24 years of service to stated cases that do not include resignation.
- A ministry's approval of pension given without the mandate of law creates no right or privilege, so returning the pension case did not offend article 31.
In other words, Rule 300(a) so far as it relates to “forfeiture of past service on account of resignation” cannot be held to be in the nature of penalty, but a disentitlement, as a consequence of having resigned from service.
