AFTAB UDDIN VS BANGLADESH 48 DLR HCD 1996

 

Analysis of the Fact:

The petitioner Aftab Uddin was at serial no.18 in the graduation list of the officers of the Bangladesh Civil Service ( Judicial) cadre and only one officer named Mr. Monindra Kumar Roy  having serial no.14 was above him being senior to him. The other officers who had been senior to him had either retired  or had been promoted to other posts. The petitioner also rendered meritorious and satisfactory service to the best of his ability. According to rules, vacancy posts of Joint Secretary in the Ministry of Law were required to be filled in from amongst officers of the Bangladesh Civil Service ( Judicial ) cadre. For that reason seniority of the district judges should be maintained. In view of Article 116 of the Constitution the Government was required to make appointment to these posts in consultation with the Supreme Court. In spite of the above mandatory constitutional and legal requirements the respondents, the Government of Bangladesh represented by the Secretary of Ministry of Justice and Parliamentary Affairs appointed three District Judges as Joint Secretaries in the Ministry of Law, Justice and Parliamentary Affairs without consulting the Supreme Court by issuing the impugned notification .

Argument from the appellant:

It was argued that

Ø  The appointment of MS Aminullah, Khondakar Md. Abu Bakar and Md. Hasan Amin who were employed as Joint Secretaries in the Ministry of Law, justice and Parliamentary Affairs without consulting the Supreme Court had been in flagrant violation of article 116 of our constitution.

Ø  The writ petitioners could not be considered as a dispute relating to the terms and conditions of the service of the petitioners. The supersession of the petitioner had given rise to the present cause of action and had made him aggrieved. The petitioner had challenged the contravention of the constitution by the executive organ of state by violating article 116 that meant before promoting and appointing several persons in the judicial services as joint secretaries, the president did not fulfill the constitutional requirements of consultation with the Chief Justice under article 116. Executive organ acted arbitrarily. If by such arbitrariness any person was adversely affected there was clear violation of the equality clauses as enshrined in article 27 in the general sense and also article 29 in limited sense when the violation was in respect of opportunity of employment in the service of the Republic?

Ø  Members of judicial service could not be equated with persons belonging to the service of the Republic.

Ø  Under article 117 Administrative Tribunal could not exercise their jurisdiction in case of persons in the judicial service. Since the petitioner was a public in judicial service so he could not go before Administrative Tribunal but this court was proper forum for seeking redress of his grievance.

Argument from the Respondent:

It was argued that

Ø  The entire dispute was related to the terms and conditions of the service of the petitioner. No question of enforcement of any fundamental right of the petitioner was involved in this case. In view of article 117 of the constitution the jurisdiction of this court to entertain this writ partition was completely ousted. The proper forum before which the petitioner should seek redress of his grievance was the Administrative Tribunal set up article 117.

Ø  The requirement of consultation with the Supreme Court by the President as embodied in article 116 meant consultation in case of appointment and promotions of persons in the judicial service from one judicial post to another judicial post. The article had no application when a person in judicial service was promoted to another post not in judicial service as in the present case.

Ø  Judicial service is defined in the article 152 as a service comprising persons holding judicial posts not being posts superior to that of a District Judge. On some occasions in the past consultation was not made by the parliament while making appointment to the posts of Joint Secretary from District Judge and such omission to consult with the Supreme Court could not be challenged by anyone. In this matter Saikia’s case was referred before the court.

Decision:

The impugned notification through which the three judges were promoted was held to be ultra vires because the aforesaid promotion was issued under the notification without consultation with the Supreme Court by the President as per provision of article 116.

Reasoning behind the decision:

The above decision was taken on the following grounds:

 Although in view of the article 116 the constitutional requirement is that promotion to the joint secretary from district judge should have been made in consultation with the Supreme Court. The respondents completely has ignored the mandatory constitutional provision.

 The right of the petitioner to be treated equally with all the citizens particularly with those district judges whose promotion as Joint Secretaries has been questioned and his right to equal protection of law with all citizens as enshrined in article 27 as well as his right to get equal opportunities in respect of employment in the service of the Republic as enshrined in article 29 have been violated.

 If there is any violation of the fundamental right of a person enshrined in Part III of the constitution  article 44 guarantees the right of such person to invoke the writ jurisdiction before this court. Again article 102(1) recognizes the enforcement of fundamental right, a person can choose this court as his forum even if remedies are open before any other forum. The question of enforcement of article 27 and article 29 of our constitution was involved in this case. So, the writ petition was maintainable.

 Three officers who were joint secretaries in the said Ministry were aware of this writ petition. So, this writ petition would not fail for their non joiner.

 In this writ petition it was not necessary to embark on an exercise of the interpretation of the word consultation under article 116 because in the present case it was an admitted position that there was no consultation at all as contemplated in article 116.

Principle:

In this case the following principles came out:

•      The Fundamental Principles of State Policy act as guide to the interpretation of the constitution and other laws of Bangladesh in view of clause 2 of article 8 of our constitution.

•      The primary rule of interpretation of a statute be it a constitutional provision or ordinary act of parliament is to put literal construction on it.

Importance of this case:

In this case the nature of the service of the judiciary and its requirements came out. A person in the service of the Republic can challenge he vires of the law regarding any fundamental right and seek  remedy under article 102(1) but in all other cases he will be required to seek remedy under article 117(2). In this case Justice Naimuddin used preamble and article 22 of Part II to interpret the provisions of article 116 as per the provision of article 8(2) that fundamental principles shall be a guide to the interpretation of the constitution but he could not hold his opinion regarding enforceability of fundamental principles in the case Kudrat-I- Ellahi vs State. In this case the court also expresses the independent nature of judiciary service.