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

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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

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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.

28

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)