IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

Present:

                            Mr. Justice Md. Nuruzzaman

                            Mr. Justice Obaidul Hassan

                            Mr. Justice Borhanuddin

                            Mr. Justice M. Enayetur Rahim

                            Mr. Justice Md. Ashfaqul Islam

                                      Mr. Justice Md. Abu Zafor Siddique

  Mr. Justice Jahangir Hossain

CIVIL APPEAL NO.232 OF 2014 WITH CIVIL PETITIONS FOR LEAVE TO APPEAL NO.2680 OF 2014 & 602 OF 2017.

(From  the  judgments  and  orders dated 24.09.2014 and  12.02.2017  passed by  the  High Court Division in Writ Petitions No.7489 of 2014, 6951 of 2014 & 1948 of 2017)

A.B.M. Altaf Hossain

Mohammad Idrisur Rahman, Advocate Md. Farid Ahmed Shibli

                                                      -Versus- Government of Bangladesh and others

               ...........Appellant

          (In C.A. No.232 of 2014)                 .................Petitioner          (In C.P. No.2680 of 2014)                 .................Petitioner            (In C.P. No.602 of 2017)

          ............Respondents                 (In all the cases)

For the appellant

(In C.A. No.232 of 2014)

For the petitioner (In C.P. No.2680 of 2014)

For the petitioner (In C.P. No.602 of 2017)

For the respondents (In all the cases)

:      Mr. Probir Neogi, senior Advocate with Mr. Momtazuddin  Fakir,  senior  Advocate,  Mr. Motahar  Hossain,  senior  Advocate,  Mr.  M. Sayed Ahmed, senior Advocate, Mr. Mahbub Shafique, Advocate, Ms. Anita Ghazi Rahman, Advocate,  Ms.  Suvra  Chakravorty,  Mr. Manzur-Al-Matin,  Advocate,  Mr.  Imranul Kabir, Advocate and Mr. Khandaker Reza-E- Raquib,  Advocate  instructed  by  Mr.  Zainul Abedin, Advocate-on-Record.

:      Mr.  Syed  Mahbubar  Rahman,  Advocate-on- Record.

:      Mr.  Manzill  Murshid,  senior  Advocate, instructed  by  Mr.  Md.  Mahboob  Murshed, Advocate-on-Record.

:      Mr. A.M. Amin Uddin, Attorney General with Mr. Mohammad Mehedi Hassan Chowdhury, Additional Attorney General, Mr. Md. Mojibur Rahman,  Assistant  Attorney  General,  Mr. Mohammad  Saiful  Alam,  Assistant  Attorney General and Ms. Tamanna Ferdous, Assistant Attorney  General  instructed  by  Mr.  Haridas

Paul, Advocate-on-Record.

Dates of hearing  :  12.01.2023,16.02.2023,23.02.2023,09.03.2023,30. 03.2023 & 25.05.2023.

Date of judgment  :  14.06.2023.

JUDGMENT

Since everyone of us has delivered separate judgments those are produced below. However, a common Court’s order has been passed which is stated at the end of the judgments.

Md. Nuruzzaman J. I have had the privilege of going through the  Judgment  proposed  to  be  delivered  by  my  learned  brothers, Obaidul  Hassan  J.,  Borhanuddin  J.,  M.  Enayetur  Rahim  J.,  Md. Ashfaqul Islam J., Md. Abu Zafor Siddique and Jahangir Hossain J.  

Concurring with the final decision of the appeal, I would like to express my own views. The facts as has been fully narrated by my learned  brothers,  I  am  of  the  view  that  further  narrating  the  facts would lead to repeat the same.

The constitutional provisions for appointing the judges of the Supreme Court of Bangladesh at time of the appointment and then non-appointment  of  the  judges  concerned  as  illustrated  in  the

Constitution of Bangladesh are as follows:

Additional Supreme Court Judges

98.  Notwithstanding  the  provisions  of  article  94,  if  the President is satisfied that the number of the Judges of a division of the Supreme Court should be for the time being increased, the President may appoint one or more duly qualified persons to be Additional Judges of that division for such period not exceeding two years as he may specify,

or, if he thinks fit, may require a Judge of the High Court Division to sit in the Appellate Division for any temporary period :

Provided that nothing in this article shall prevent a person appointed as an Additional Judge from being appointed as a Judge under article 95 or as an Additional Judge for a further period under this article.

Appointment of Judges

95. (1) The Chief Justice shall be appointed by the President and the other Judges shall be appointed by the President after consultation with the Chief Justice.

2.    A person shall not be qualified for appointment as a Judge unless he is a citizen of Bangladesh and – 
   1.   has, for not less than ten years, been an advocate of the Supreme Court ; or
   2. has, for not less than ten years, held judicial office in the territory of Bangladesh ; or
   3.    has such qualifications as may be prescribed by law for appointment as a Judge of the Supreme Court. 
3.    In this article, “Supreme Court” includes a court which at any time before the commencement of this Constitution exercised jurisdiction as a High Court in the territory of Bangladesh.

From  the  plain  reading  of  the  above  stated  Constitutional framework for appointing judges of the supreme court of Bangladesh the  subtle  thing  that  should  not  be  averting  gaze  is  that  while appointing  Additional  Judges  under  Article  98,  there  is  no constitutional obligation for the President consulting with the Chief Justice  of  Bangladesh  and  such  consultation  is  mandatory  while

appointing judges under Article 95. Well, there was such a consulting precondition  within  the  purview  of  Article  98  in  the  original constitution  of  1972  and  which  was  eliminated  through  4th amendment of the Constitution. Nevertheless, the Constitution too did not impose that the CJB should not be consulted and as a convention the CJB usually consulted prior to the appointment of such judges. For instance,  we  can  recapitulate  the  unpleasant  incident  of  1994  for appointing  of  some  judges  without  consulting  the  CJB  and  after serious repercussions from every corner of the Bench-Bar and citizens, that  appointment  was  finally  revoked  and  till  date  the  same  is maintained religiously. Whatever may be the case, the Constitutional scheme is such that the executive organ shall appoint a judge of the Supreme Court after eventual scrutiny of antecedents as well as legal acumen of the person concerned with or without consultation with CJB.

Though it is the President who officially appoints the judges of the Supreme Court, however, in reality it is the advice of the Prime Minister. Because, as per Article 48(3)-

“(3) In the exercise of all his functions, save only that of appointing the Prime Minister pursuant to clause (3) of article 56 and the Chief Justice pursuant to clause (1) of article 95, the President shall act in accordance with the advice of the Prime Minister:

Provided that the question whether any, and if so what, advice  has  been  tendered  by  the  Prime  Minister  to  the President shall not be enquired into in any court.”

The  meaning,  understanding  and  effects  of  this  mandatory consultation  process  was  epically  identified  in  the  epoch-making judgment of this Division in the case of Secretary, Ministry of Finance, Government  of  Bangladesh  Vs.  Md.  Masdar  Hossain  &  others reported  in  2000  20  BLD  (AD)  104  (popularly  known  as  Masdar

Hossain case) as hereunder:

“...we pause here and reflect on the words "in consultation with the Supreme Court" contained in Article 116. We have no doubt in our mind that the President in Article 116, as Syed Ishtiaq Ahmed rightly points out, in effect means the Prime  Minister  or  the  Chief  Political  Executive  of  the country, in view of Articles 48(3) and 55(2). The President wields control over the Presiding Officers of subordinate courts in a wide variety of fields. The Prime Minister has therefore become in reality the real wielder of power in this regard. The Prime Minister being a political person on whom  is  vested  the  executive  power  of  the  Republic needed a check on such a sweeping and absolute power. Dr.  Kamal  Hossain  rightly  termed  the  words  "in consultation with the Supreme Court" As a pillar which held  up  the  independence  of  the  judiciary  as  a  basic structure of the Constitution. In order that this pillar may not end up as a bamboo pillar, the word "consultation" has to be given some teeth, or else, as Syed Ishtiaq Ahmed rightly  pointed out, Articles 116 and 116A  will be only mocking birds.”

Though the above observations directly relates to the Articles connected with the judicial officers of the district judiciary, however, the meaning, understanding and effects are absolutely identical with Article 95.

As  appointment  of  judges  in  the  Supreme  Court  is  both  a constitutional post and warrant high esteem across the citizens, it is impliedly  ordained  by  the  Constitution  itself  that  prior  to  such appointment all sorts of antecedents of the judge of the Supreme Court on the cards be examined comprehensively. After having such clean chit or certificate of spotless records and fulfilling legal, academic and other mandatory requirements, if a person is appointed as Additional Judge  of  the  Supreme  Court,  he/she  comes  within  judicial  and administrative domain of the Chief Justice for the two (02) years of temporary period.

Now, getting back on the very basic question posted above, my understanding is that the constitution makers included consultation process in the Article 95 and later excluded in the Article 98 to give extraordinary weightage to obligatory consultation procedure while appointing a judge permanently. Because, this time that additional judge effectively served two years on the open Court under oath and within  the  direct  surveillance  of  the  senior  judges  of the  Supreme Court and the Chief Justice himself. He/she had to dispose adequate cases  and  write  judgments  and  as  a  convention,  the  quality  and

integrity of those decisions are to be examined by the senior most judges of both the Divisions of the Supreme Court including the CJB. In other words, while appointing permanently, a person having prior clean  chit  about  his/her  antecedents,  fulfilling  constitutional requirements and other jobs as stated above done successfully, then the CJB recommend his/her name to the President for appointing as a Judge of the Supreme Court of Bangladesh.

Well,  albeit  the  CJB’s  recommendation,  the  Executive  could differ, at least for practical purposes. If there are diverged opinions concerning a person’s appointment in the Supreme Court what should the President do? Whose opinion should get preference?

Here comes the idea of primacy of opinion between executive and judiciary in the matters of exclusive judicial arena and presence of a  workable  mechanism  for  scientifically  rational  resolution  of difference of opinion. In this context our highest Court in the case of “Bangladesh  represented  by  the  Secretary,  Ministry  of  Justice  and Parliamentary Affairs and others (In. C. P. Nos. 2221 & 2222 of 2008), Justice Syed Md. Dastagir Hossain and others (In. C. P. Nos. 2046 & 2056  of  2008)  vs.  MD.  IDRISUR  RAHMAN,  ADVOCATE  AND OTHERS (In. C. P. Nos. 2221 of 2008), MD. SHAMSUL HUDA AND OTHERS  (In.  C.  P.  Nos.  2222  of  2008),  MD.  SHAMSUL  HUDA, ADDITIONAL JUDGE AND OTHERS (In. C. P. Nos. 2046 of 2008) and MD. IDRISUR RAHMAN, ADVOCATE AND OTHERS (In. C. P. Nos.

2056 of 2008) reported in 29 BLD (AD) 79 popularly known as `10 Judges Case’ observed hereunder:

“It has been asserted by the writ petitioners that there is continuous and unbroken convention of consultation with the Chief Justice of Bangladesh regarding appointment of Judges and that has not been denied by the Government by filing any counter affidavit. It is true that there has been unbroken  and  continuous  convention  of  consultation excepting a breach in 1994 which was subsequently cured by consulting the Chief Justice and by issuing a fresh letter of appointment of the Judges by cancelling the earlier one which was issued without consulting the Chief Justice of Bangladesh.  Therefore,  the  consultation  with  the  Chief Justice must be effective consultation with its primacy.

In the case of S.P. Gupta and others Vs. President of India and  others  reported  in  AIR  1982  (SC)  149,  the  case  of Supreme  Court  Advocates-on-Record  Association  Vs. Union of India reported in AIR 1994 page 269 and Special Reference No. 1 of 1998 and the case of Al-Jehad Trust Vs. Federation of Pakistan reported in P.L.D. 1996 Vol-1 page 324 the matter of consultation with the Chief Justice in the matter of appointment of Judges to the higher Judiciary was considered and it was held that consultation with the Chief Justice is a pre-requisite and the opinion of the Chief Justice shall have primacy.”

One point must be mentioned here that at the time of accruing the cause of action and finally disposal of the `10 Judges Case’ there was no incorporation of consultation process neither in Article 98 nor in 95.  Nevertheless,  with  the interpretation  of the Constitution the

Apex court decided that mandatory consultation with the CJB having primacy is a basic structure of the Constitution.

In the `10 Judges Case’ His Lordship Mr Justice Tafazzul Islam observed that:

“As it appears in view of the provisions of Article 94(4) of the Constitution and the interpretation of the words "shall be  independent"  as  contained  in  Article  116A  of  the Constitution  as  given  in  Masdar  Hossain's  case,  20 BLD(AD) 104 and also the principles laid down in Sankar Chand's  case,  :  MANU/SC/0065/1977 :  AIR  1977  S.C. 2328,  wherein  the  Supreme  Court  of  India  interpreting Article  50  of  Indian  Constitution,  which  is  similar  to Article 22 of our Constitution, held that a basic pillar of the Constitution  cannot  be  demolished  or  curtailed  or diminished  in  any  manner  except  by  and  under  the provision of the Constitution and the Appellate Division applied the above view in Anwar Hossain's case, 41 DLR (AD) 165 and that there is also no bar either in Article 95 or Article 98 or any other provision of the Constitution in respect of consultation with the Chief Justice and further the primacy of the opinion of the Chief Justice is in no way in conflict with Article 48(3) of the Constitution and the advice of the Prime Minister is subject to Articles 22 , 94(4) , 95 , 98 , 116 and 116A of the Constitution and accordingly the Prime Minister, on the basis of Articles 48(3) and 55(2) of  the  Constitution,  cannot  advice  contrary  to  the  basic feature of the Constitution so as to destroy or demolish the independence of judiciary and as such consultation with the Chief Justice with primacy of his opinion is an integral part of independence of judiciary which is ingrained in the

very concept of the independence of judiciary embedded in the principle of Rule of Law.”

This Division further observed that:

“Therefore  it  follows  that  consultation  with  the  Chief Justice with primacy is an essential part of independence of  judiciary  which  is  ingrained  in  the  very  concept  of independence embedded in the principle of Rule of Law and separation of judiciary from the executive and is not in conflict with Article 48(3) of the Constitution.”

In  the  case  of  Anwar  Hossain  Chowdhury  and  others  Vs. Bangladesh reported in 41 DLR (AD) 165, commonly referred as `8th amendment case’ it was held that:

“This  point  may  now  be  considered.  Independence  of judiciary is not an abstract conception. Bhagwati, J: said

`if  there  is  one  principle  which  runs  through  the entire fabric of the Constitution, it is the principle of the Rule of Law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the Law and thereby making the Rule of Law meaningful and effective.’

He said that the Judges must uphold the core principle of the Rule of Law which says-`Be you ever so high, the Law is above you.’ This is the principle of independence of the judiciary  which  is  vital  for  the  establishment  of  real participatory democracy, maintenance of the Rule of Law as a dynamic concept and delivery of social justice to the vulnerable Sections of the Community. It is this principle of independence of the judiciary which must be kept in

mind  while  interpreting  the  relevant  provisions  of  the Constitution (S.P. Gupta and others Vs. president of India and others AIR 1982 SC at pate 152)."

Independence  of  the  Judiciary,  a  basic  structure  of  the Constitution, is also likely to be jeopardised or affected by some of the other provisions in the Constitution. Mode of their  appointment  and  removal,  security  of  tenure particularly,  fixed  age  for  retirement  and  prohibition against employment in the service of the Republic after retirement or removal are matter of great importance in connection with the independence of Judges. Selection of a person  for  appointment  as  a  Judge  in  disregard  to  the question of his competence and his earlier performance as an Advocate or a Judicial Officer may bring in a "Spineless Judges" in the words of President Roosevelt; such a person can hardly be an independent Judge.”

These views of the Apex Court of this land were reiterated in the “Masdar Hosen Case”, “10 Judges case”, “5th Amendment Case”, “7th Amendment  Case”,  “13th  Amendment  Case”,  “16th  Amendment Case” and so on.

Let’s travel through the memory lane of the foundation of the constitution  of  Bangladesh.  What  our  Constitution  makers  of  the Constituent Assembly of 1972 thought concerning the independence of judiciary and separation of it from the executive?

Deputy  Leader  of  the  Constituent  Assembly  and  the  Acting President of Bangladesh during the liberation war of Bangladesh Syed Nazrul Islam on 19.10.1972 said that:

"মাননীয় ীকার সােহব, গণতে র সবেচেয় বড় কথা হে  separation of judiciary from the executive, অথাৎ আইেনর শাসন এমনভােব বতন করেত হেব, যন আইনিবভাগ পিরপণভােব িনরেপ  থােক এবং মযাদা এবং াধীনতার  সে   তার  কতব   পালন  করেত  পাের।  এই  শাসনতে  আমােদর আইনিবভাগেক ধ আলাদা করাই নয়, তােক পিরপণ মযাদা দওয়ার জন   য ব ব া   হণ করা হেয়েছ, তােত আইেনর শাসন স ে  আমােদর মেন কান সংশয় থাকা বা নীয় নয়।"

Sirajul Haque, Advocate, Member of the Constituent Assembly on 30.10.1972:

" য ‘জিডিসয়াল িসে ম' আমরা িদেয়িছ, আিম গেবর  সে  বলেত পাির, ব রা   ভারতবষও   এখন  পয     তা  িদেত  পােরিন। কননা,  ভারতবেষ এখনও ‘জিডিসয়ািরেক স ণ পথক করা স ব হয়িন। আর, আমরা চ া কেরিছ,  আলাদা  করার। ধ  হাইেকাট নয়,  স ীম কাট নয়-  আমােদর িন তম ‘জিডিসয়াির’ কও ‘এ   িকউ টভ’ থেক  আলাদা  করবার  জন  আমােদর সংিবধােন ব ব া কেরিছ। সতরাং অিভেযাগ সত  নয় ৷"

Chairman  of  the  Draft  Constitution  Committee  and  Law Minister Dr Kamal Hossain said on 12.10.1972:

"আইেনর  শাসন  িন   ত  করার  উে েশ   াধীন  িবচারিবভাগ িত ার

ব ব া করা হেয়েছ। িবচারিবভােগর শীষে দেশ রেয়েছ স ীম কাট । স ীম কােটর দই ট িবভাগ থাকেব। হাইেকাট িবভাগ এবং আপীল িবভাগ। এই আপীল িবভাগ হেব দেশর চড়া  আপীেলর      । িনবাহী িবভাগ থেক িবচারিবভাগেক পথক করারও ব ব া করা হেয়েছ।"

And on 30.10.1972:

"িবচারিবভাগ  স ে   আর  একটা  কথা  বলেত  হয়।  িনবাহী  িবভাগ থেক িবচারিবভাগেক পথক করার কাজটা সরাসিরভােব আমরা কের িদেয়িছ।      তালা হেয়েছ য,  আমরা  তা  কিরিন।  িক   আমরা থম  িদেক মলনীিতর মেধ  তা কের িদেয়িছ। তারপর, আবার যিদ একট ক  কের ১১৪ এবং ১১৫ অনে দ তারা দেখন, তাহেল বঝেত পারেবন য, এটার িবধান করা হেয়েছ। দ' জায়গায় করলাম কন, এ     উঠেত পাের। ভিবষ েত য আইন করা হেব, তা যন এই িবধান অনসাের করা হয়, সজন  এই ব ব া। অধ ন আদালত এবং  ফৗজদারী আদালেতর ম া জে টেদরেক আমরা স ীম কােটর আওতায় িনেয় এেসিছ।

িনবাহী িবভাগ থেক িবচারিবভাগেক পথক করার দাবী আমােদর ব িদন আেগর  পরেনা  দাবী।  আমরা  অতীেত দেখিছ,  িনবাহী  িবভােগর  অধীেন িবচারিবভাগ থাকার ফেল কীভােব তােদর ভািবত করা হেয়েছ, কীভােব ভয় দখােনা হেয়েছ।

আইয়েবর  আমেল  আমার  মেন  আেছ,  একজন জলা-জজ  সরকােরর িব ে  একটা “ইনজাংশন' িনেয়িছেলন। সজন  তােক স ীেপ বদলী করা হয়। কােজই এ দেশর জা  ত জনতা িনবাহী িবভাগ থেক িবচারিবভােগর পথকীকরেণর দাবী ত েলেছন।

কীভােব অতীেত িবচারিবভােগর াধীনতা খব করা হেয়েছ, তার ব  নজীর আেছ। সজন  আইনজীবী ছাড়াও এ দেশর জনসাধারণ িদেনর পর িদন িবচারিবভাগেক িনবাহী িবভাগ থেক পথক করার দাবী জািনেয় এেসেছন। আমরাই স দাবী কেরিছ এবং এখন যেহত সেযাগ পেয়িছ, তাই স দাবী আমরা মেন িনেয়িছ। দাবী-দাওয়া আমরাই। করতাম। তখন আমরা দাবী- দাওয়া মেন নওয়ার সেযাগ পাইিন। এতিদন পের আমরা এ সব দাবী- দাওয়া পরণ করার সেযাগ পেয়িছ। আমার মেন হয়, কান-না- কান সদস  এর  উপর  একটা-না-একটা    াব  পাস  কেরেছন।  তাই  আজেক  আমরা

মেন িনলাম য, িনবাহী িবভাগ থেক িবচারিবভাগেক পথক করা হাক ।"

From  these  speeches  of  our  Constitutional  maker  it  is unmistakably evident that ensuring the independence of judiciary and making it separate from the executive were two primordial intentions of our Constitution framers. In the aforementioned case laws of our Apex Court such as “Masdar Hosen Case”, “10 Judges case”, “5th Amendment  Case”,  “7th  Amendment  Case”,  “13th  Amendment Case”,  “16th  Amendment  Case”  these  primal  intentions  of  our Constitution Makers were pronounced recurrently.

Not only that, through the 15th Amendment of the Constitution in the year of 2011, a separate Article was inserted regarding `Basic Structure’ of the Constitution of Bangladesh. It is as follows:

“Basic provisions of the Constitution are not amendable

7B. Notwithstanding anything contained in article 142 of the  Constitution,  the  preamble,  all  articles  of  Part  I,  all articles of Part II, subject to the provisions of Part IXA all articles of Part III, and the provisions of articles relating to the basic structures of the Constitution including article 150 of Part XI shall not be amendable by way of insertion, modification, substitution, repeal or by any other means.”

These  firm  notions  of  the  legislature  was  further  reinforced through inserting another Article which is as follows:

“Offence of abrogation, suspension, etc. of the Constitution

7A. (1) If any person, by show of force or use of force or by any other un-constitutional means-

1.   abrogates, repeals or suspends or attempts or conspires to abrogate, repeal or suspend this Constitution or any of its article ; or
2. subverts  or  attempts  or  conspires  to  subvert  the confidence,  belief  or  reliance  of  the  citizens  to  this Constitution or any of its article,

his  such act  shall  be  sedition  and  such  person shall  be guilty of sedition.

2.   If any person-

1.   abets or instigates any act mentioned in clause (1) ; or
2. approves, condones, supports or ratifies such act,

his such act shall also be the same offence.

3.      Any  person  alleged  to  have  committed  the  offence mentioned  in  this  article  shall  be  sentenced  with  the highest punishment prescribed for other offences by the existing laws.”

These two Articles read with the Article 7 give us this certain impression  that  `basic  structures’  of  the  Constitution  are  not  only unbendable but also any attempt for deviating from such provisions is a seditious offence.

As consultation with the CJB with primacy is basic structure as per  decision  of  the  Apex  Court,  that  automatically  made  an  entry within the purview of Article 7A read with Article 7B and 7, as laws declared by the Appellate Division is binding under Article 111 of the Constitution.

One thing that agitated our judicial mind is that the State did not even  challenge  the  decision  of  the  Apex  Court  relating  to  the mandatory  consultation  process  with  primacy  rather  executed  the same by taking both legislative actions by making necessary rules viz.

Rule 8A of the “বাংলােদশ জিডিসয়াল সািভস (সািভস গঠন, সািভস পেদ িনেয়াগ এবং  সামিয়ক  বরখা করণ  ও  অপসারণ)  িবিধমালা,  ২০০৭”;  Rule 11 of the  “বাংলােদশ জিডিসয়াল সািভস (কম   ল িনধারণ, পেদা িত, ছ   টম রী, িনয় ণ, শ লা-িবধান এবং চাকরীর অন ান  শতা বলী) িবিধমালা, ২০০৭” and Rule 29 of the “বাংলােদশ জিডিসয়াল সািভস (শ লা) িবিধমালা,  ২০১৭” and took executive steps in accordance through passing orders. In the said rules of the Judicial Service, the effect of consultation with primacy of the Supreme Court has accommodated in  unambiguous  terms  and  identical  languages.  For  proper appreciation of the matters of consultation and primacy exact version of “বাংলােদশ  জিডিসয়াল  সািভস  (শ লা)  িবিধমালা,  ২০১৭  এর  িবিধ-২৯” is  shown hereunder-

“২৯. স ীম কােটর পরামেশর  কাযকরতা

(১) উপয  কতপ  স ীমেকােটর পরামশ অনসাের এই িবিধমালায় িনধাি রত সমেয়র মেধ   েয়াজনীয় সকল পদে প হন কিরেব।

(২) উপ-িবিধ (১) এ বিণত  উপয  কতপে র    াব ও স ীম  কােটর পরামশ অিভ  না হইেল সইে ে  স ীম  কােটর পরামশ   াধান  পাইেব।”

Well,  subsequent  to  such  clear-cut  and  patent  verdict  and accomplishment  by  the  Government  i.e.  the  executive  making necessary  rules  on  "consultation  with  primacy"  and  after  the enactment of the Fifteenth Amendment of the Constitution in 2011, is there any scope at all to leave the matter of antecedent or conduct of a Judge of the High Court Division in the hands of the executives or to make their (executives) opinion dominant over the opinion of the CJB? The answer is a big no.

Now, let’s recapitulate the Apex Court’s ruling on mandatory consultation with the CJB with primacy in the `10 Judges Case’. After examining  the  provisions  of  the  Constitution  along  with  a  virtual travel through the mind of best legal faculties of the subcontinent this Division reached in a decision that consultation with the CJB coupled with primacy over the opinion of the executive while appointing a judge in the Supreme Court, is a basic structure of the Constitution. However, the very next moment they invented a strange device that is a  dichotomized  consultation  process.  The  nature  of  this  bifurcated consultation process is such that it was divided in twofold stages:

1. Judicial acumen and
2. Antecedents.

Concerning judicial acumen of a potential Judge of the Supreme Court, CJB’s opinion shall get primacy and the matters of antecedents of such person executive shall say the final words. Well, if that is the theory, then let’s visualize a scenario where CJB recommends a person for appointment, but executive denied, then how it will be resolved? There is no answer to this question in the said bifurcated consultation process as formulated by the Division. It’s a supreme judicial impasse and obvious result of such stand-off is that it is the executive that have the final words and getting primacy over the opinion of the CJB, in harsh reality.

It is absolutely undisputed that the CJB recommended both of the appellant and the petitioner for being appointed as judge of the Supreme Court after completion of two years tenure as Additional Judge. What we have seen in the two matters in question is that the executive disagreed with the CJB’s recommendation and finally both of  them  were  dropped  from  the  list  of  appointments  concerned without knowing their faults. As there were no explanation of such non-appointments, the persons were not able to defend themselves, in addition, there were no such grievance mitigating mechanisms they could resort. Even the CJB were in darkness regarding the causes of the  negation  of  his  recommendations.  These  are  absolute embarrassments for the post of CJB too. These are the outcome of the bifurcated consultation process.

In the logical fields Hegelian Dialectics is commonly accepted as a best practice in resolving theoretical arguments. “Hegel’s dialectics” refers to the special dialectical method of argument employed by the 19th Century German philosopher, G.W.F. Hegel. In a few words it is an  interpretive  method  in  which  the  contradiction  between  a proposition  (thesis)  and  its  opposition  (antithesis)  is  resolved  at  a higher level of truth (synthesis).

Like  other  “dialectical”  methods,  relies  on  a  contradictory process between opposing  sides. Whereas Plato’s  “opposing  sides” were  people  (Socrates  and  his  interlocutors),  however,  what  the “opposing sides” are in Hegel’s work depends on the subject matter he discusses. In his work on logic, for instance, the “opposing sides” are different definitions of logical concepts that are opposed to one another.  In  the Phenomenology  of  Spirit,  which  presents  Hegel’s epistemology or philosophy of knowledge, the “opposing sides” are different  definitions  of  consciousness  and  of  the  object  that consciousness is aware of or claims to know. As in Plato’s dialogues, a contradictory process between “opposing sides” in Hegel’s dialectics leads  to  a  linear  evolution  or  development  from  less  sophisticated definitions or views to more sophisticated ones later. The dialectical process  thus  constitutes  Hegel’s  method  for  arguing  against  the earlier,  less  sophisticated  definitions  or  views  and  for  the  more sophisticated  ones  later.  Hegel  regarded  this  dialectical  method  or “speculative mode of cognition” as the hallmark of his philosophy.

If  we  take  the  CJB’s  affirmative  opinion  as  `Thesis’  and  the executive’s  negative  wish  as  `Anti-thesis’,  then  there  must  be  a `Synthesis’ for resolving  such a supreme  dilemma.  Otherwise, that won’t be a logical as well as scientific resolution of dispute. And such a  framework  for  these  types  of  scientifically  rational  resolution  of difference of opinion is a sine qua non for a democratic, civilized and modern welfare state.

As  the  subdivided  consultation  process  lacks a  ‘Synthesis’,  it became  a  half-baked  one  and  anything  half-baked  is  not  good  for health, for taste as well.

Well, apart from epistemological aspect, ‘Synthesis’ is necessary for some practical purposes too. For example, some objectionable or unethical information regarding a potential judge could be received to the  end  of  the  executive  that  were  unnoticed  by  the  head  of  the judiciary during his/her tenure as an additional judge.

For  better  understanding  we  can  study  such  a  ‘Synthesis’ mechanism  devised  by  one  of  our  neighboring  country  India’s Supreme Court. When there arise such type of divergence of opinion between judiciary and executive regarding the appointment of a judge in the High Courts and Supreme Court of India, then the executive send back the recommendation with written explanation along with other materials including various intelligence wings reports. Then the matter is reconsidered by the judiciary. After such consideration, if the judiciary reiterate the recommendation, then it is mandatory for the

executive. In this way, not only the imperative of having a ‘Synthesis’ is being fulfilled but also the primacy of the judiciary is upheld. We can run through some of such “Reiterated Resolutions” uploaded in the official web site of the Supreme Court of India in this web address: https://main.sci.gov.in/collegium-resolutions.

It is to be noticed from the collegiums regulations found in the above mentioned wed address that the `Classified Intel Reports’ were provide to the judiciary in writing and excerpts from thereto were disclosed publicly by the Apex Court Body for clarifications. The Apex Court  Body  duly reconsidered  the  executive’s  view  based  on  Intel Reports, re-discussed with the concerned body or person and then reiterated its recommendation to the executive.

A logical and befitting ‘Synthesis’ could be as such:

If there is a disagreement between the judiciary and executive, the reasons of such incongruity along with all the connected papers or audio-visual  substances  be  referred  to  the  CJB  immediately.  After getting such intimations from the executive, the CJB along with two senior most judge of this Division shall enquire into the matters giving parties concerned an opportunity for self defence and form an opinion which shall be mandatory for the executive.

One thing must be borne in mind and act of functionaries of the country  is  that  in  a  state  of  written  constitution,  neither  the Government nor the Legislature or the Judiciary are Sovereign, it is only  the  Constitution  that  is  Sovereign  and  Supreme.  Because,

constitution is the highest formal expression of the people. Article 7 of the Constitution ordains as follows:

“Supremacy of the Constitution

7. (1) All powers in the Republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution.

2.    This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void.”

We  too  have  a  written  Constitution.  Our  Legislature  cannot legislate  in  contravention  of  the  provisions  of  the  Constitution. Government too cannot act violating the Constitution.

Now consider another aspect of these cases which is related with Article 48(3). As we pointed earlier that though the President officially appoints  the  Judges  of  the  Supreme  Court,  as  per  constitutional binding regarding the appointment of Judges of Supreme Court, the President  acts  only  in  accordance  with  the  advice  of  the  Prime Minister. We already graphically illustrated that in our Constitutional framework Constitution only is sovereign entity not the executive or legislature or judiciary; independence of judiciary and separation of judiciary from executive and concerning the appointment of Supreme Court Judges mandatory consultation with the CJB with primacy are basic structures of our Constitution and the basic structures shall not

be amendable by way of insertion, modification, substitution, repeal or by any other means.

In the `10 Judges case’ this Division firmly decided that:

“Therefore the expression "independence of judiciary" is also no longer res-integra rather has been authoritatively interpreted by this Court when it held that it is a basic pillar  of  the  Constitution  and  cannot  be  demolished  or curtailed  or  diminished  in  any  manner  accept  by  and under  the  provision  of  the  Constitution.  We  find  no existing provision of the Constitution either in Articles 98 or Article 95 of the Constitution or any other provision which  prohibits  consultation  with  the  Chief  Justice. Therefore, consultation with the Chief Justice and primacy is  in  no  way  in  conflict  with  Article  48(3)  of  the constitution. The Prime minister in view of Article 48(3) and 55(2) cannot advice contrary to the basic feature of the constitution so as to destroy or demolish the independence of judiciary. Therefore the advice of the Prime minister is subject to the other provision of the Constitution that is Articles 95, 98, 116 of the constitution.”

And in the operative part of the judgment of “10 Judges Case” it was held that:

“3. Independence of judiciary affirmed and declared by the Constitution is a basic structure of the Constitution and cannot be demolished or diminished in any manner. There

is no provision in the Constitution either authorising the President or for that matter the Prime Minister in view of Article 48(3) of the Constitution to curtail or diminish such independence. 4. Consultation with the Chief Justice with primacy of his opinion in the matter of appointment of Judges and the administration  of  judiciary  is  an  essential  part  of independence of judiciary ingrained in the very concept of independence embedded in the principle of rule of law and separation of judiciary from the executive and is in no way in conflict with Article 48(3).”

There raised a question regarding Mr A.B.M. Altaf Hossain by the  learned  Attorney  General  as  to  that  before  elevation  to  the Supreme Court his aggregated tenure as a practicing Advocate in the Supreme Court was less than 10 years in actual fact, though his date of enrolment as an Advocate of the Supreme Court was beyond that period.  This  question  visualizes  that  before  elevating  him  the executive did not bother to probe his antecedents though the related documents  concerning  his  tenure  as  a  practicing  Advocate  in  the Supreme Court were in the public domain. It indicates that he was appointed at the whim of the executive without prior verifying his credentials.

Appointment as a Judge in the Supreme Court is not a `hire and fire’ type of job. It is one of the topmost appointments of the Country from the normative view point as well as from public confidence and requires  citizen’s  esteem.  Therefore,  vast  legal  experiences  with

appropriate academic requirements are sine qua non for this post. This should not be taken as an entry post in the Supreme Court. The entry post  in  our  judicial  system  is  the  post  of  Assistant  Judge  and membership in District Bar Association. As per service Rules a person can apply for such posts up to 30 years of age and in some instance that could be 32 years and on an average 1 - 1.5+ years needed for such a  person  to  be  appointed  as  a  judicial  officer  by  the  Bangladesh Judicial Service Commission. After overcoming many service related barriers for usually 15-20 years (with some exceptional cases with less service  tenure)  that  person  could  become  a  District  and  Sessions Judge.  High  Court  Division  of  the  Supreme  Court  usually  hears appeal, revision etc from the judgments and orders of the District and Sessions Judges, that is, Judges of the High Court Division not only judges the District and Sessions Judges but also have superintendence and  control  over  all  courts  and  tribunals  subordinate  to  it  as  per Article 109 of the Constitution. And while Judges from the Bangladesh Judicial  Service  are  elevated  to  the  Supreme  Court  they  are  to  be District Judges invariably, at least in practice, though as per Article 95(2)(b)  Members  of  District  Judiciary  shall  not  be  qualified  for appointment as a Judge unless he/she has, for not less than ten years, held judicial office in the territory of Bangladesh.

On the other hand, in our legal system a person can be enrolled as an Advocate of the High Court Division of the Supreme Court well before aged 30 years. The appellant herein was enrolled in the High

Court Division at the age of almost 26. There are lots of instances where advocates were enrolled at the High Court Division even earlier ages than the appellant.

In such circumstances, I’m quite unable to understand how the requirement  of  10  years'  practice  under  Article  95(2)(a)  of  the Constitution suffice with simplicities the period of enrolment for 10 years instead of actual continuous or aggregate experience at the Bar. It mandatorily be continuous or aggregate experience without fail.

Moreover, our Constitution did not ordain that it should be 10 years  rather  qualified  with `not  less  than  ten  years’.  Thus,  our Constitution makers bestowed a higher degree of discretion upon the ‘Judge Makers’ of our legal system and that responsibility have to be discharged  with  utmost  sincerity  and  responding  the  call  of  the conscience.

The works of the judges are the art of judging a case impartially, writing judgments and orders thereon and presiding over the court. After 25-30 years of investing in these arts, at the fag end of their career a judicial officer could become a Judge of the Supreme Court. Therefore, while appointing judges having direct lack of the above mentioned  arts  of  judging,  there  age  of  actual  experience  in  legal arena, coupled with merit and other extraordinary qualities must be borne in mind of the appointing authorities.

Now,  let’s  consider  the  case  of Mr Md  Farid  Ahmed Shibly. Being appointed as a Munsif, the name of the then entry post in the

judicial service, in the year of 1983 he got promotions as Sub-Judge (now Joint District Judge), Additional District Judge and District Judge in  the  year  of  1994,  1999  and  2004  respectively.  After  serving  as District and Sessions Judge, Gazipur; Secretary, Bangladesh Judicial Service  Commission  and  Registrar,  Supreme  Court  (now  Registrar General)  he  was  elevated  as  an  Additional  Judge  of  the  Supreme Court.

His portfolio suggests that prior to elevation his service record was  clean  and  excellent  on  both  counts  of  on  the  Bench  and administrative affairs.

In our country while a labourer are to be dismissed he has to be served  a  show  cause  notice  to  explain  his/her  defences  under  the Labour Laws. However, an Additional judge of the Supreme Court can lost his job without knowing the reasons.

Non-confirmation of an Additional judge of the Supreme Court as permanent Judge is of course stigmatic. Because, such a news of non-confirmation become a national daily newspaper, TV, radio and electronic media headlines. Everyone who read, watch and hear this news want to know why that person was not confirmed, there must be some problem with him etc.

Our  Apex  Court  in  many  cases  decided  that  when  someone striped with jobs he/she must get an opportunity to explain his views before being sacked. Principle of natural justice too requires that if any

decision taken against anyone he/she must know the reasons thereto and have the opportunity in presenting his/her defenses, if any.

The non-confirmation of Mr Md. Farid Ahmed Shibli and Mr. A.B.M. Altaf Hossain as permanent Judge of the Supreme Court is thus a clear violation of Principle of natural justice as well as settled case laws concerned of the Apex Court.

I  am  greeeing  with  the  opinion  of  the  learned  brothers Borhanuddin J., M. Enayetur Rahim J., Md. Ashfaqul Islam J., Md. Abu Zafor Siddique J. and Jahangir Hossain J., to consider the case of the appellant by the appropriate authority.

However, I am of the view that the leave petitioner’s case may also be considered by the appropriate authority.

                                                                                                          J.

Obaidul Hassan, J.  The  Civil  Appeal  and  both  the  Civil Petitions for Leave to Appeal involving similar question of laws and almost  identical  facts  having  been  heard  together  are  now  being disposed of by this common judgment.

Civil Appeal No. 232 OF 2014:

The  instant  Appeal  by  leave  granting  order  dated  06.11.2014 passed by this Division in Civil Petition for Leave to Appeal No.2626 of 2014 filed against the judgment and order dated 24.09.2014 passed

by  the  High  Court  Division  in  Writ  Petition  No.7489  of  2014 summarily rejecting the Writ Petition.

The appellant as petitioner filed the Writ Petition No. 7489 of 2014 challenging non-appointment of the petitioner as Judge of the High Court Division of the Supreme Court of Bangladesh in violation of  Article  95  of  the  Constitution  and  the  principle  settled  by  the Appellate Division of the Supreme Court of Bangladesh in the case of Bangladesh  &  Ors.  vs. Md.  Idrisur  Rahman, Advocate  &  Ors. reported  in  29  BLD(AD)79  despite  of  the  recommendation  of  the Hon’ble Chief Justice of Bangladesh without any reason.

The petitioner filed the aforesaid Writ Petition stating, inter alia, that  he  was  a  practicing  Advocate  of  this  Court  and  was  holding requisite qualifications to be appointed as a Judge of the High Court Division of the Supreme Court of Bangladesh. He did his graduation and post-graduation on Law from the University of Rajshahi securing 1st Class in LL.M. He also acquired graduation and post-graduation diploma on Law from the UK. He was called to the Bar as a Barrister by  the  prestigious  Society  of  Lincoln’s  Inn,  London,  U.K.  He  was enrolled  with  the  Bangladesh  Bar  Council  as  an  Advocate  on 06.12.1998 and was permitted to practice in the High Court Division on 18.06.2000 and the Appellate Division on 18.05.2011. He acted as the Deputy Attorney General for Bangladesh and as Member of the Board of Governors of Bangladesh Open University. Considering his

such qualifications and good antecedents, the President of Bangladesh appointed  him  as  the  Additional  Judge  of  the  Supreme  Court  of Bangladesh,  High  Court  Division  along  with  five  other  Additional Judges  under  Article  98  of  the  Constitution,  vide  notification No.10.00.0000.128.011.010.2012-816 dated 13.06.2012. Accordingly, he took oath of office on 14.06.2012 and had been functioning as Judge since  then  until  his  name  was  dropped  by  the  impugned  action. During  this  period,  he  delivered  numerous  judgments  which  have been highly acclaimed by the Bar and the Bench. Before expiry of two years’ tenure of Additional Judge, the petitioner along with five other Additional Judges, submitted ten judgments authored by each of them as required by the Honourable Chief Justice of Bangladesh and the said judgments were distributed among the senior most Judges of the Appellate  Division  for  their  opinion.  On  being  satisfied  with  the performance  and  integrity  and  all  other  aspects  of  all  the  six Additional  Judges  including  the  petitioner  the  Honourable  Chief Justice  recommended  all  of  them  for  appointment  as  permanent Judges of the High Court Division under Article 95 of the Constitution and such fact of recommendation by the Chief Justice had been widely published  in  the  daily  newspapers.  However,  the  name  of  the petitioner was dropped from the list of permanent Judges, although other five Additional Judges were duly appointed by the President, vide  Gazette  Notification  No.10.00.0000.128.011.010.2012-472  dated 09.06.2014. Thereafter, the petitioner tried his best to know the reasons,

but  could  not  know  anything,  though,  pursuant  to  the  said appointment notification, his colleague Additional Judges had been sworn in as permanent Judges by the Honourable Chief Justice and have  been  functioning  as  such  in  the  High  Court  Division.  The executive most arbitrarily dropped the name of the petitioner from the list  of  six  Additional  Judges  even  after  recommendation  by  the Honourable Chief Justice and the said impugned order affected the very  independence  of  the  Judiciary,  which  is  one  of  the  basic structures of the Constitution as well as the same has labelled a stigma with the integrity and quality of the petitioner. In such a situation, the writ petitioner moved before the High Court Division.

Upon hearing the Writ Petition, the High Court Division rejected the same summarily by judgment and order dated 24.9.2014.

Against the judgment and order dated 24.09.2014 passed by the High  Court  Division  the writ  petitioner filed the Civil Petition  for Leave to Appeal No.2626 of 2014 and after hearing the parties this Division granted leave by an order dated 06.11.2014 and hence the instant Civil Appeal.

Civil Petition for Leave to Appeal No. 602 OF 2017:

The Civil Petition for Leave to Appeal is directed against the judgment  and  order  dated  12.02.2017  passed  by  the  High  Court Division in Writ Petition No. 1948 of 2017.

The case of the petitioner in Civil Petition for Leave to Appeal No. 602 of 2017 is that the petitioner is a law abiding citizen and permanent  resident  of  Bangladesh. He  had  obtained  B.S.C.  Degree from Sunamgonj College under the University of Chittagong in the year  1977. He  had  obtained  LL.B.  Degree  from  the  University  of Dhaka  in  1981.  Subsequently,  he  was  appointed  as  Munsif  by  the Government of Bangladesh vide Memo dated 5th July, 1983 and his service was confirmed as of his joining date on 17.07.1983. Thereafter, he was promoted to the post of Sub-Judge from the post of Assistant Judge  on  31.05.1994  and  then  he  was  appointed  as  the  Assistant Sessions Judge. Later on, he was promoted to the post of Additional District & Sessions Judge and subsequently he was appointed as the Additional  Registrar,  Appellate  Division,  Supreme  Court  of Bangladesh vide Memo dated 15.01.2002. Thereafter he was promoted to the post of District Judge and posted in situ. On 15th May, 2008, the petitioner was appointed as the District & Sessions Judge, Gazipur. Subsequently,  the  petitioner  was  transferred  to  and  posted  on deputation as the Secretary, Bangladesh Judicial Service Commission Secretariat vide Memo dated 05.07.09. Thereafter the petitioner was appointed as the Registrar, Supreme Court of Bangladesh and served there until his elevation as an Additional Judge of the Supreme Court. The  petitioner  has  performed  many  important  responsibilities  at different positions throughout his long career. Having been satisfied with  his  academic  and  professional  performance,  the  Honourable

President of the People’s Republic of Bangladesh after consultation with the Honorable Chief Justice of Bangladesh appointed him as an Additional Judge of the High Court Division of Supreme Court of Bangladesh along with 9 (nine) other Additional Judges under Article 98 of the Constitution of the People’s Republic of Bangladesh for a period of two years vide notification dated 9th February, 2015 and he was  sworn  in  by  the  Honourable  Chief  Justice  of  Bangladesh  on 12.02.2015  as  an  Additional  Judge  of  the  Supreme  Court  of Bangladesh. After appointment as Additional Judge, he rendered his service most honestly, sincerely and diligently to the full satisfaction of the Chief Justice of Bangladesh and others. The petitioner delivered many  substantial  judgments  in  previous  two  years,  which  was appreciated by many. During his tenure as an Additional Judge none raised  any  objection  to  his  integrity  and  merit  whatsoever.  As  an Additional Judge the petitioner performed his function as a second judge in the Division Benches of High Court Division. He, as a second judge, contributed in different jurisdictions and also to the legal arena in the Country. He had never compromised justice and always upheld unimpeachable integrity. Having been satisfied on the performance and all other requisite qualifications, the Chief Justice of Bangladesh recommended the name of the petitioner as well as those of the eight others to the Honourable President for appointment as the Judges of the High Court Division after forming opinion on their suitability, integrity and merit. The Hon’ble President, however, appointed eight

others  under  Article  95  of  the  Constitution  except  the  petitioner without  communicating  any  reason  to  the  Chief  Justice.  The appointment of the eight Judges had been published vide Notification dated 7th February, 2017. A news item was published on 9th February, 2017 in the daily newspaper titled ‘Jugantor’ in respect of confirmation of appointment of eight Additional Judges in the High Court Division. The said news item also reported that the Honourable Chief Justice of Bangladesh recommended the name of the petitioner along with eight others Additional Judge to the Honourable President for appointment as  a  Judge  of  the  High  Court  Division  of  the  Supreme  Court  of Bangladesh  under  Article  95  of  the  Constitution.  Despite  such recommendation  of  the  Chief  Justice,  the  Government  has  not  the petitioner  as  Judge  of  the  High  Court  Division.  Finding  no  other efficacious remedy the petitioner filed the Writ Petition No. 1948 of 2017. The petitioner by filing the Writ Petition No. 1948 of 2017 before the  High  Court  Division  has  called  in  question  the  legality  and constitutionality  of  dropping  him  from  the  list  of  the  Additional Judges  to  be  appointed  permanently  as  Judges  of  the  High  Court Division of the Supreme Court of Bangladesh under Article 95 of the Constitution and the principle settled by this Division in the case of Bangladesh  Vs.  Idrisur  Rahman  29  BLD  (AD)  79  despite  the recommendation  of  the  Honourable  Chief  Justice  of  Bangladesh without any reason.

Upon  hearing  the  High  Court  Division  disposed  of  the  Writ Petition No. 1948 of 2017 with some observations by judgment and order  dated  12.02.2017  and  hence  the  Civil  Petition  for  Leave  to Appeal No. 602 of 2017.

Mr.  Probir  Neogi  along  with  Mr.  Momtazuddin  Fakir,  Mr. Motahar Hossain, Mr. M. Sayed Ahmed all senior Advocates and Mr. Mahbub Shafique, Ms. Anita Ghazi Rahman, Ms. Suvra Chakravorty, Mr. Manzur-Al-Matin, Mr. Imranul Kabir and Mr. Khandaker Reza-E- Raquib, all Advocates appearing for the appellant in Civil Appeal No. 232  of  2014  contended  that  the  appellant  had  been  denied confirmation in clear and flagrant violation of the provisions of the Constitution and law declared by the Appellate Division inasmuch as there is an expressed provision in Article 95(1) of the Constitution that the Judges of the Supreme Court of Bangladesh shall be appointed by the Hon’ble President of the People's Republic of Bangladesh after consultation  with  the  Hon’ble  Chief  Justice  and  the  Chief  Justice having  recommended  the  appellant  as  Judge  of  the  High  Court Division  for  confirmation  and  appointment  under  Article  95,  the dropping of the name of the appellant without any cogent reason is totally  unconstitutional.  The  learned  Counsels  for  the  appellant contended  next  that  by  the  illegal  action  of  the  executive  the independence  of  the  judiciary  has  been  diminished  and  since  the independence of the Judiciary is a basic structure of our Constitution and under Article 7B of the Constitution it cannot be amended by the

parliament  and  there  being  no  provision  in  the  Constitution authorizing the President under Article 48(3) to curtail or diminish the independence of judiciary, non-appointment of the appellant ignoring the  recommendation/opinion  of  the  Chief  Justice  was  an  act  of flagrant  violation  of  the  basic  structure  of  the  Constitution.  The learned Counsels for the appellant argued next that no question has ever been raised against the antecedents of the appellant rather having found  the  performance  of  appellant  satisfactory  as  an  Additional Judge,  the  Chief  Justice  has  recommended  the  appellant  for confirmation/appointment  under  Article  95  of  the  Constitution inasmuch as the consultation process being initiated by the executive whose opinion in the matter of antecedents being already there and the  Chief  Justice  in  the  process  of  consultation  had  the  benefit  of examining the opinion of the executive and since the Chief Justice recommended the appellant for appointment disregarding/overruling such opinion, there is no scope on the part of the executive to drop the name of the appellant from the list of the Judges to be appointed under  Article  95.  Thus,  the  action  of  the  executive  denying confirmation/appointment of the appellant is wholly unconstitutional, arbitrary  and  naked  interference  in  the  affairs  of  the  judiciary inasmuch as an act done without any lawful authority. The learned Counsels for the appellant submitted further that under Article 95(1) of the Constitution since the judges of the Supreme Court shall be appointed by the President after consultation with the Chief Justice,

the recommendation of the Chief Justice shall get primacy over the opinion  of  the  executive  in  the  matter  of  appointment  of  Judges, therefore, the executive was under serious constitutional obligation not to drop the name of the appellant but to confirm him pursuant to the recommendation of the Chief Justice who is the best person to judge and assess the ability and competence of the appellant and the appellant  has  maintained  highest  professional  standard  as  an Additional Judge and delivered some brilliant judgments as an author Judge,  therefore,  the  Appeal  is  liable  to  be  allowed.  The  learned Counsels  submitted  next  that  the  executive  by  not  appointing  the appellant after recommendation of the Chief Justice has reduced and diminished the power, position and role of the Chief Justice inasmuch as  it  was  an  act  of  undermining  the  authority  of  the  head  of  the judiciary as well since in the impugned judgment of the High Court Division there is an observation that no way out was given in the Ten Judges’ case when the question of difference of opinion between the Chief Justice and the executive would arise, therefore to resolve the said issue and also to find a way out in such situation it is essential to allow  the  instant  Appeal  by  reviewing  the  Judgment  of  the  Ten Judges’  case.  The  learned  counsels  for  the  appellant  fortified  their arguments  by  putting  reliance  on  some  case  laws  decided  in  the Secretary, Ministry of Finance Vs. Md. Masdar Hossain and others, 52 DLR (AD) 82; S.P. Gupta Vs. Union of India (UOI) and ors, AIR 1982 SC 149; Raghib Rauf Chowdhury Vs. Government of Bangladesh, 69

DLR 317; Bangladesh and others Vs. Idrisur Rahman, Advocate and others, 29 BLD (AD) 97 etc.

Mr. Manzill Murshid, learned senior Advocate appearing for the petitioner  in  Civil  Petition  for  Leave  to  Appeal  No.  602  of  2017 submitted that the petitioner being a member of Bangladesh Judicial Service served from 17.7.1983 to 10.2.2015 holding different posts and at the fag-end of the service he had been the Registrar of Bangladesh Supreme Court wherefrom he was appointed as an Additional Judge of the High Court Division under Article 98 of the Constitution and took oath on 12th February, 2015. Although all Additional Judges who had been appointed along with the petitioner were confirmed and appointed as Judge  of the High  Court  Division  the petitioner was dropped from the list vide notification dated 07.02.2017 of the Ministry of Law, Justice and Parliamentary Affairs. The learned senior Counsel contended next that after issuance of the impugned notification dated 07.02.2017 the petitioner came to know from a news caption of ‘The Daily Jugantor’ published on 09.02.2017 that the then Chief Justice recommended  all  Additional  Judges  including  the  petitioner  for appointment under Article 95 of the Constitution but in violation of the  constitutional  provisions  the  executive  dropped  the  petitioner without  showing  any  cogent  reason.  The  learned  senior  Counsel contended next that according to Article 95(1) of the Constitution, a Judge shall be appointed by the President after consultation with the Chief  Justice  and  in  the  instant  case  the  Honourable  Chief  Justice

recommended the name of the petitioner along with eight others but disregarding that recommendation of the Chief Justice, the petitioner alone was dropped out which is a clear violation of the constitutional provision  of  Article  95.  Therefore,  the  petitioner  is  entitled  to  be appointed as a Judge of the High Court Division. The learned senior Counsel submitted next that the process by which the Judges of the Supreme Court are appointed, is the key to both reality and perception of the independence of judiciary and the whole constitutional scheme is to shut the doors of interference against the executive under lock and key and therefore the prudence demands that after shutting the door of interference the key should not be left in possession of the executives. Disregarding the recommendation of the Chief Justice by the executive means snatching the very key of the door of interference by  the  executive  away  from  the  control  of  the  judiciary  which  is tantamount to a denial of the very concept and basic principle of the independence  of  judiciary.  The  learned  senior  Counsel  for  the petitioner  argued  next  that  according  to  Article  48(3)  of  the Constitution in exercise of all functions, save only that of appointing the Prime Minister and the Chief Justice, the President shall act in accordance with the advice of the Prime Minister. Under Article 95 of the Constitution in appointing Judges of both Division of the Supreme Court,  the  President  shall  consult  the  chief  Justice  and  act  in accordance with the advice of the Prime minister. In the Ten Judges’ case it is held that consultation with the Chief justice and primacy of

the opinion of the Chief Justice is in no way in conflict with Article 48(3) of the Constitution. In view of Articles 48(3) and 55(2) the Prime Minister cannot advice the President anything contrary to the basic principle  and  structure  of  the  Constitution.  The  independence  of judiciary being the basic principle and structure of our Constitution, consultation with the Chief Justice in the matter of appointment of Judges with  its  primacy  should  be considered  as an  essential  part thereof. After the decision of Ten Judges’ case Article 95 was amended by way of 15th Amendment in 2011 and it becomes imperative for the executive to consult the Chief Justice in appointing Judge of the High Court Division and in this regard the opinion of the Chief Justice will get primacy. The learned senior Counsel contended next that it is held in  the  landmark  Masder  Hossain’s  case  (  52  DLR(AD)  82)  that  in exercising control and discipline of persons employed in the judicial service and magistrates exercising judicial functions under article 116 the views and opinion of the Supreme Court shall have primacy over those of the executive. The Government did not even challenge the above decision concerning the consultation with primacy. The learned senior  Counsel  contended  further  that  in  the  Ten  Judges’  case  (17 BLT(AD) 231) it has been observed that the term ‘consultation’ was considered in Masdar Hossain’s case in the light of Article 116 of the Constitution but nevertheless the same principle all the more applies in the matter of appointment of Judges of the Supreme Court under Articles  98  and  95  of  the  Constitution  because  without  the

independence  of  the  Supreme  Court  there  cannot  be  any independence of the subordinate Courts and minus the consultation and primacy the separation of judiciary from the executive will be empty words. The learned senior Counsel contended next that the petitioner  came  across  32  years  holding  different  posts  in  the subordinate judiciary during which all matters including antecedents had been subject to scrutiny and supervision of the Supreme Court under  Articles  109,  116,  116A  of  the  Constitution.  During  the petitioner’s such long career in the judiciary he did never ever face any proceeding or complaint on matter of discipline or antecedent. There is no statement from the executive that the government ever consulted the Chief Justice on any matter of antecedent of the petitioner. Thus, on any vague plea of antecedent, it would be unjust to deprive the petitioner of his legitimate right or expectation of being appointed under  Article  95  of  the  Constitution.  The  learned  senior  Counsel contended  further that  the  petitioner  was initially appointed as an Additional Judge under Article 98 of the Constitution and at that time the  President  on  all  areas  including  antecedents  and  judicial performance  consulted  the  Chief  Justice.  At  that  time  no  adverse report or allegation revealed from the petitioner’s service record or conduct as a result he was appointed as an Additional Judge under Article 98 of the Constitution. In such a situation, in the process of appointment under Article 95 of the Constitution the petitioner was not supposed to be subjected again to any further scrutiny what so

ever. The learned senior Counsel further submitted that the petitioner as an Additional Judge under Article 98 had performed all judicial works  satisfactorily  and  since  the  Honourable  Chief  Justice  had recommended  his  name  along  with  eight  others  for  appointment under Article 95, he has, therefore, not only a legitimate expectation rather  acquired  a  constitutional  right  for  being  confirmed  and appointed  under  Article  95  of  the  Constitution  with  effect  from 07.02.2017 or 11.02.2017 because of the fact that such convention being followed in this country for more than over last 60 years. The learned senior  Counsel,  in  fine,  submitted  that  for  doing  complete  justice under Article 104 of the Constitution the executive is required to be directed  to  appoint  the  petitioner  as  a  Judge  of  the  High  Court Division within a specific deadline giving all arrear remunerations, benefits  and  privileges  with  service-continuity  with  effect  from 11.02.2017.

Per contra, Mr. A.M. Amin Uddin, Attorney General with Mr. Mohammad  Mehedi  Hassan  Chowdhury,  Additional  Attorney General, Mr. Md. Mojibur Rahman, Assistant Attorney General, Mr. Mohammad  Saiful  Alam,  Assistant  Attorney  General  and  Ms. Tamanna  Ferdous,  Assistant  Attorney  General  appearing  for  the respondents  in  all  the  cases  strenuously  opposed  the  submissions made on behalf of the appellant and the petitioner. They submitted that in the case of Bangladesh and others Vs. Md. Idrisur Rahman and others reported in 29 BLD (AD) 79 this Court having held that the

opinion  of  the  executive  will  have  dominance  in  the  matter  of antecedent of a Judge of the High Court Division and in the instant case  considering  the  antecedent  of  the  appellant  the  Honourable President of Bangladesh has not appointed him as a permanent Judge of  the  High  Court  Division  and  the  same  does  not  require  any interference by this Court as well. The learned Attorney General along with Deputy Attorney General and Assistant Attorney General for the respondents contended next that the Honourable President appointed the appellant in the year 2012, the Honourable President having not appointed  him  as  permanent  Judge  in  the  year  2014,  and  in  the meantime there has been no change of Government, it cannot be said that the appellant was victim of political reasons and there is nothing to  show  that  for  an  ulterior  reason  the  appellant  has  not  been appointed as a permanent Judge and as such there is no merit of this Appeal. The learned Attorney General argued next that Article 95(2)(a) of  the  Constitution  requires  that  to  be  elevated  in  the  Bench  an advocate must have 10 years’ practicing experience in the Supreme Court of Bangladesh. By referring Al- Jehad Trust case reported in PLD 1996 SC 324 the learned Attorney General submitted that the requirement  of  10  years’  practice  under  Article  193(2)(a)  of  the Constitution of Pakistan relates to the experience/ practice at the Bar and not simpliciter the period of enrolment. By referring the Mahesh Chandra  Gupta’s  case  reported  in  (2009)  8  SCC  273  the  learned Attorney General submitted next that the decision of Indian Supreme