SECRETARY, MINISTRY OF FINANCE VS MR.MD. MASDAR HOSSAIN 20 BLD AD 2000

 

 Analysis of the Fact:

Writ petitioners were either District Judges or Additional District Judges or Subordinate Judges or other Judges in the Subordinate Judiciary filed the writ petition imp leading Secretary, Ministry of Finance , Government of Bangladesh in which a rule nisi was issued at first to show cause as to why Bangladesh Civil Service Order(Re Organization), 1980 purporting to incorporate Judicial Service as one of the Cadre Services should not be declared ultra vires the Constitution and violative of the Articles 27 and 29 of the Constitution, why the impugned orders passed by the appellant dated 28.2.1994 and 2.11.1995 suspending and then cancelling an earlier order of the appellant dated 8.1.1994 regarding to pay and allowances of the Respondents should not be declared ultra vires, discriminatory and violative of fundamental rights guaranteed by the Constitution and to show cause why the attempt to treat the Judges of subordinate courts as part of Civil Service Cadre  meant for executive branch of Government and to subject them to any law meant for the employees of the executive Government should not be declared ultra vires the Constitution and why separate set of rules for the judges of the subordinate court should not be framed as contemplated under Article 115 of the Constitution.

Argument from the petitioner:

It was argued that

 Independence of Judiciary had been accepted by the court to be a basic structure of the Constitution. The executive officers perform the functions of assisting the political executive in the executive policies while the judiciary administers justice without fear or favor. They are not policy framers and policy executors.

 Service of the Republic means any service in respect of the Government of Bangladesh. Government of Bangladesh means executive government of Bangladesh that discharges the executive administrative functions of the state. The judicial officers not doing executive functionaries could not be said to be in service in respect of the Government of Bangladesh. 

 Judges were appointed on the doctrine of good behavior but if they were treated to be in the service of the republic then they would hold office during the pleasure of the president under Article 134 which stroke at the very root of the independence of the judiciary.

 Regarding the lack of any express rule making provision in Article 116 with regard to salary, remuneration etc of the members of the judicial service it was submitted that the void could be filled up by taking recourse to the doctrine of Implied Power used by the court in the case MUJIBUR RAHMAN VS GOVERNMENT OF BANGLADESH 44 DLR AD III PARA 85.

 No further Constitutional amendment was necessary for the separation of the Subordinate Judiciary from the executive because that was already present in the Constitution under Article 22. 

Argument from the Respondent:

It was argued that 

 High Court Division was in wrong view of Article 109 and 117 of the Constitution holding that judicial officers need not approach the Administrative Tribunal for relief.   The court cannot direct the parliament to adopt legislative measures are direct the President to frame rules under the provisions of Article 133 of the Constitution.

 The doctrine of implied power was available only when there is a presence of legislative power in order to fulfill the subsidiary matters not taken care of by express legislation. As Article 116 is devoid of any legislation or rule making power the doctrine of implied power could not be invoked in the circumstances.

 It would be prudent to treat the judicial service as a species of the service of the republic and not to treat it as a service completely divorced from the service of the Republic and that will bring disharmony in the interpretation of the Constitution.

 The power that has been vested in the President under Article 116 the power to control and discipline of persons in judicial service and magistrates exercising judicial functions are purely an executive power not legislative.

Decision:

Encadrement of the member of judicial services into the Bangladesh Civil Services (Reorganization0 Order, 1980 ultra vires the Constitution. The impugned orders dated 28.2.1994 and 2.11.1995, Annexure F and F (1) respectively are declared unlawful being ultra vires of the Constitution.

Reasoning behind the decision:

The above decision was taken on the following grounds:

 Though judicial service is a service of the Republic under Article 152(1) but it is a functionally and structurally distinct and separate service from the Civil, Executive and Administrative service.

 Though Article 115 does not make any provision regarding rule making authority with regard to other terms and conditions of service. Articles 133 and 136 of the Constitution and Services Reorganization and Conditions Act, 1975 have no applications in the matters in the judicial services.

 Creation of B.C.S (Judicial) Cadre along with B.C.S executive and administrative order,1980 with amendment of 1986 is ultra vires of the Constitution.

Importance of this case:

Masdar Hossain case is prominently known as the case of Separation of Judiciary case. The judgment in this case was given against the background of intervention by the executive in the matter of appointment, promotion, pay scale determination, transfer, granting leave and other benefits of the personnel in the subordinate judiciary. In this case 12 points directives were given to the Government. Among them some basic directions are given below:

 Government is to take steps or the President is to make Rules under Article 115 to implement—

•      Nomenclature of Judicial service as Judicial Service of Bangladesh.

•      Establishment of judicial service commission with the majority members from judiciary for recruitment to the judicial service.

 Under Article 133 laws or rules should be enacted consistent with Article 116 and 116A for judicial service separately.

 A separate judicial pay commission is to be established under Article 115.

 Security of tenure, Security of salary and other benefits and pension, Constitutional independence from the parliament and executive shall be ensured for judicial independence under Article 116A by making law or rule under Article 113.

 The Supreme Court shall not be required by the executive to seek their approval to incur any expenditure on any item from the fund allocated to the Supreme Court.

Finally as per the provision of Articles 114-116A it is the combined duty of executive, legislative and judiciary to separate the lower judiciary from the executive and it is also a principle of State Policy under Article 22 of our Constitution. So, Government cannot ignore this supreme responsibility after the judgment of this case.