Summary

Seven Sub-Assistant Engineers (Civil) of the Bangladesh Agricultural Research Institute challenged the BARI Employee Service Regulation, 2021, which provided for the post of Assistant Engineer (Civil) to be filled 67% by direct recruitment and 33% by promotion. Under the 2011 Regulations the post was filled by promotion from Sub-Assistant Engineers (Civil) with five years' service. The institute argued that the 2011 Regulations had been repealed and that the petitioners had no vested right to promotion. The High Court Division found that the petitioners had completed the qualifying service before the 2021 Regulations came into force, so their eligibility to be considered had accrued. Following Appellate Division authority that accrued rights cannot be taken away by new rules applied retrospectively, and without striking down the regulation, the Court disposed of the Rule by directing the respondents to consider the petitioners for promotion under the 2011 Regulations within one month, subject to vacancies and suitability.

Issues

1. Q1

   Whether the petitioners had acquired an accrued right to be considered for promotion to Assistant Engineer (Civil) under the BARI Employee Service Regulations, 2011 before the 2021 Regulations were promulgated.

2. Q2

   Whether the 2021 Regulations, which made the post 67% direct recruitment and 33% promotion, could be applied to defeat that accrued eligibility.

Key points

• An authority may amend or replace service regulations, but not to the detriment of rights or privileges that had already accrued to employees under the earlier regulations.
• Rights such as the right to be considered for promotion that have accrued under existing rules cannot be taken away by changing the rules or making new rules with retrospective effect.
• The mere repeal of the 2011 Regulations did not by itself authorise the respondents to extinguish eligibility for promotion that had already accrued under them.
• A grant of current charge does not by itself create a substantive right to promotion.
• Where the substantive relief sought can be granted without declaring a provision ultra vires, the Court will follow that course.

Law considered

Bangladesh Agricultural Research Institute (BARI) Employee Service Regulations, 2011Bangladesh Agriculture Research Institute (BARI) Employee Service Regulation, 2021Constitution of Bangladesh, Article 102