DR SHAHDIN MALIK VS BANGLADESH 12 MLR HCD 2007

 

Analysis of the Fact:                  

In this case the validity of the promotion of Mr. Ali Ashraf Khanin in the post of Additional Secretary in the Ministry of Law, Justice and Parliamentary Affairs was challenged. Respondent no. 03 was a Session Judge of Chittagong. At first he was appointed in the post of Joint Secretary under transmission by an order dated 19-9-2002. He was provided with the charge of Additional Secretary by an order dated 21-12-2004. Finally he was promoted to the post of Additional Secretary by an order dated 8-3-2006.

Issue:

Whether the appointment of Judicial officers to posts of Additional Secretary and Secretary to the Ministry of Law, Justice and Parliamentary Affairs have been done with lawful authority or not? 

Argument from the Petitioner:

It was argued that the Constitution of Bangladesh has separated the Judicial Service from the executive. As per the decision of the case of Secretary, Ministry of Finance vs  Masder Hossain Judiciary is a separate and distinguished.  In the light of the judgment of the case in order to give the Judiciary a separate and distinguished shape the Law Ministry on behalf of the Government has already completed its all necessary actions. In this regard he submitted the schedule attached with the notification dated 12-6-2006 under the SRO 142. According to the schedule no post above the District or Session Judge should not be attached with the judiciary. It was contrary to the judgment of the Masder Hossain to appoint or transmigrate or promote any District Judge or any judge holding equivalent post in the post of executive. 75% posts made in the guideline of 2002 would be applicable only in case of the officers of the Ministry not in the case of members of judicial service. The phrase ‘in other way’ had been used with the term transmission and so when it was not possible to appoint by transmission in the post of executive then by the said words an appointment on the basis of a contract could be construed. Since the words were used by the court to rectify a guideline not by given in any judgment so the court could only give its proper meaning.

Argument from the Respondent:

It was argued that after one year of the judgment of Masder Hossain as per the consent of the Supreme Court a guideline was prepared for the promotion, transmission and appointment of the officers of the Judicial Service. Those guidelines were published in a notification dated 22-22001. In the notification 75% post of the all 1^st class including Secretary were fixed for the Judicial officers. Again in another notification dated 11-6-2002 promulgated for guidelines for promotion of secretary, additional secretary, joint secretary and assistant secretary,2002( under clause 5) 75% posts were reserved for Ministry of Law and Foreign Affairs under the power provided in article 133 of our Constitution. Under clause 7(2)(a) in the Bangladesh Judicial Service Regulations( posting, promotion, discipline and other conditions of service),2006 there was inserted a provision of appointment in other way of the members of Judicial Service in the Ministry so that there was no impediment  for appointment or transmission in case of Judicial Service in the light of Masder Hossain case.

Decision and Reasoning behind the decision: 

The petition was discharged on the following grounds:

Though the petitioner’ advocate argued that reservation of 75% posts was applicable only for the 1^st class officers of Ministry not for the Judicial members but it was clear that up to the date of 83-2006 no guidelines for Judicial Service and its members had been made. So, the Respondent no.03 was duly promoted to the post of Additional Secretary as per the clause 5(1)© of the Guidelines made in 2002. In this case the petitioner was granted locus standi because he placed an important question regarding the separation of judiciary and he was an advocate and a teacher of law.

Principle:

There is no distinguished principle found in this case. The traditional principle which has been established  in the case Masder Hossain that Judiciary has to be separated from the executive as early as possible may be reinterred here.

Importance of this case:

This is one of the important cases where the judgment of the famous case Masder Hossain regarding the separation of judiciary from the other services of the Republic has been tried to enforce on the question of promoting the judges in the posts of the executive. Though the case was dismissed it had created an possible way to recollect the concerned government authorities to separate the judicial service from the other services of the Republic in the light of the case Masder Hossain.