Appellate Division
Afroza Khanam and others v Bangladesh and others
Civil Appeal 91/2024 · Appeal and review petitions allowed · Decided 25 February 2025
The appellants and review petitioners, appointed Upazila/Thana Election Officers on probation, were terminated for unsatisfactory performance after a test conducted by IBA whose result was never published. The Administrative Tribunal dismissed their cases, but the Administrative Appellate Tribunal allowed their appeals. The Election Commission decided not to appeal and reinstated them by a gazette notification of 25.05.2010. The Government, through the Cabinet Secretary, nevertheless appealed, and the Appellate Division allowed those appeals on 01.09.2022. On review, the Appellate Division held that the Rules of Business gave the Cabinet Secretary no authority to appeal, and a right of appeal cannot be inferred without express provision. The Government's appeal, contrary to the Election Commission's decision, encroached on the authority of a body made independent by Articles 118(4) and 126 of the Constitution and section 3 of the Election Commission Secretariat Act, 2009. The finding that the officers failed the test had no basis. The 2022 judgment was set aside and reinstatement with arrears, benefits and seniority ordered.
- Whether the Cabinet Secretary had locus standi to appeal on behalf of the Government against the Administrative Appellate Tribunal's decision in favour of the Election Officers.
- Whether the Government could override the Election Commission's decision not to appeal and to reinstate the officers.
- Whether the judgment of 01.09.2022 rightly found that the officers had been unsuccessful in a test whose result was never published.
- The right to file an appeal cannot be assumed or inferred unless expressly provided in the statute or rules, and the Rules of Business gave the Cabinet Secretary no authority to file the appeals.
- The Government's appeal against the Administrative Appellate Tribunal's judgment, contrary to the Election Commission's decision not to appeal, amounted to encroaching on the authority of a statutory body.
- Articles 118(4) and 126 of the Constitution and section 3 of the Election Commission Secretariat Act, 2009, read together, establish the independence and authority of the Election Commission.
- The finding that the officers were unsuccessful in the IBA test had no basis because the result of that test was never published.
- The notification of 25.05.2010 cancelling the termination was never challenged and remained in force.
- The officers were to be reinstated forthwith with arrear salary, benefits and seniority, the period out of service being treated as extraordinary leave.
The very act of preferring the appeal by the Government, contrary to the decision of the Election Commission not to prefer any appeal against the judgment passed by the Administrative Appellate Tribunal, Dhaka is tantamount to encroaching upon the sovereign authority of a statutory body.
