What are the rights and remedies for me in the High Court under Article 29 (equality of opportunity in public employment)?
Answer:
Do you know what fundamental rights and remedies under Article 29 (equality of opportunity in public employment) you have in the High Court Division? Do you know High Court is there for you to protect your rights to the equality of opportunity in public employment? Do you know when the state discriminates you in matters of public office or employment, the High Court Division of the Supreme Court of Bangladesh is readily available to ensure your said rights? If you do not know, let’s know your rights and know how to be protected:
Article 29 of the Constitution of the People’s Republic of Bangladesh guarantees equality of opportunity in public employment. When any public authority, government department, statutory body, or autonomous institution violates this constitutional guarantee, an aggrieved person may file a Writ Petition before the High Court Division under Article 102 seeking appropriate remedies.
Below are the major issues, matters, or grounds on which a Writ Petition can be filed under Article 29, with practical examples and judicial precedents.
Grounds for Filing a Writ under Article 29
A Writ Petition can be filed based on the following issues and grounds:
Discrimination in Public Employment:
Article 29(1) said that there shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.
Article 29(2) said that no citizen shall be discriminated against in respect of any employment or office in the service of the Republic on grounds only of religion, race, caste, sex or place of birth.
Now, if this right is violated, a Writ Petition (usually a Writ of Mandamus or Certiorari) can be filed under Article 102 of the Constitution.
Grounds for Writ:
A writ petition may be filed where a government authority discriminates against a citizen in recruitment, promotion, or appointment.
For example: A government department rejects an applicant because of religion. Or, a job circular limits applications only to persons from a specific district without lawful justification. Or, if a government circular for the post of "Administrative Officer" states that only "Male candidates from Dhaka district" can apply, a female candidate or a candidate from another district can file a writ challenging the circular as it discriminates based on sex and place of birth.
Judicial Precedent: in the case of Abdul Mannan, the Appellate Division held that public employment must follow constitutional principles of equality and fairness, and arbitrary discrimination in recruitment violates Articles 27 and 29.
Arbitrary or Illegal Recruitment Process:
While the State can set "qualifications" for a job, those qualifications must be reasonable and related to the nature of the work. If the criteria are designed to favor a specific person or group unfairly, it violates Article 29.
Ground for Writ: If a recruitment process is conducted arbitrarily, without transparency or contrary to recruitment rules, a writ petition may be filed.
For example: If recruitment is done without public advertisement, or authorities select candidates based on favoritism or nepotism, you can file a writ petition to challenge the same. And, if the government suddenly changes the retirement age or promotion criteria specifically to benefit one individual officer while bypassing senior, qualified officers, the aggrieved officers can move the High Court.
Judicial Precedent: in the case of Shamsun Nahar, the High Court Division observed that public posts must be filled through fair and transparent procedures, ensuring equality of opportunity for all eligible candidates.
Illegal Cancellation of Recruitment Process:
If a recruitment process is cancelled midway without a valid or transparent reason after candidates have already qualified in exams, it may be challenged as an arbitrary exercise of power.
Ground for Writ: If the government arbitrarily cancels a recruitment process after candidates have been selected or recommended, a writ petition may be filed.
For example: Candidates pass written and viva examinations but the authority cancels the recruitment without lawful reason.
Judicial Precedent: in the case of A.K.M. Fazlul Haque, the Court held that administrative authorities cannot arbitrarily cancel a recruitment process without reasonable justification.
The interpretation of Article 29 has been shaped by several key judgments:
BCS Case (Age):
In various instances, the High Court has dealt with the age limit for entering government service. While the State has the power to set age limits, the court has intervened when the application of these limits was found to be inconsistent or discriminatory against certain batches of applicants.
Significance: It established that you cannot treat equals as unequals. If the State treats two similarly situated employees differently in terms of promotion or benefits, it violates the "Equality of Opportunity" doctrine.
Improper Use of "Special Provisions" (Article 29(3)):
While the State can make "quotas" for backward sections (29(3)(a)) or specific genders (29(3)(c)), these provisions must be reasonable and not overshadow the merit system entirely.
If a quota system becomes so extensive that it effectively denies any opportunity to meritorious candidates, it can be challenged.
For example: The 2018 and 2024 student movements in Bangladesh led to legal challenges where the High Court and Appellate Division had to determine the "reasonable" balance of quotas in BCS exams.
Violation of Quota System or Misapplication of Reservation:
Article 29(3) allows the State to make special provisions for backward sections of citizens, i.e. women, disabled persons, and certain districts.
Ground for Writ: A writ petition may be filed where quotas are misapplied or abused, or eligible candidates are wrongfully deprived of general merit positions.
For example: A candidate with higher merit is rejected while a lower-scoring candidate is selected outside the lawful quota system.
Judicial Precedent: The High Court observed that quota provisions must be applied reasonably and in accordance with constitutional principles of equality.
Appointment Made Without Following Merit Principle:
Ground for Writ: If authorities appoint candidates without merit-based evaluation, it violates Article 29.
For example: A public authority directly appoints political supporters without examination or recruitment procedure.
Judicial Precedent: in the case of Latif Mirza, the Court emphasized that public office is a public trust and appointments must follow merit and fairness.
Denial of Promotion in Violation of Rules:
Ground for Writ: A writ petition may be filed where a qualified employee is denied promotion unlawfully or superseded arbitrarily.
For example: A senior government officer meeting all requirements for promotion is ignored while a junior officer is promoted without justification.
Judicial Precedent: in a case, the Court held that promotion decisions must follow established rules and principles of fairness, otherwise they may be challenged through judicial review.
Violation of "Equal Pay for Equal Work":
Though not explicitly written in the text, the Supreme Court has interpreted Article 29 to include the principle that employees performing the same duties under the same employer should not be paid differently without a rational basis.
For example: If two groups of government employees have the same job description and qualifications, but one group is placed on a significantly lower pay scale without any logical reason, they can file a writ for "pay parity."
Conclusion: A Writ Petition may be filed before the High Court Division under Article 29 when 1) there is discrimination in public employment, 2) recruitment is conducted arbitrarily or unfairly, 3) promotion is denied unlawfully, 4) recruitment rules or service rules are violated, 5) recruitment processes are cancelled arbitrarily, 6) quota provisions are misused or misapplied, and 7) appointments are made without merit or transparency. In such cases, the High Court Division exercises judicial review under Article 102 to enforce the fundamental right of equality of opportunity in public employment guaranteed by Article 29.
MD. KAMRUZZAMAN
Advocate
Supreme Court of Bangladesh
And
A Fundamental Rights Activist.