IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
WRIT PETITION NO. 16088 OF 2018
IN THE MATTER OF
An application under Article 102 of the Constitution of the People’s Republic of Bangladesh
-AND-
IN THE MATTER OF:
Mohammad Nur Alam
... Petitioner -Versus-
Bangladesh, represented by the Secretary, Ministry of Law, Justice and Parliamentary Affairs and others
... Respondents Ms. Sufia Ahamed, Advocate
.....For the petitioner
Mr. Mohammad Imam Hossain, Advocate
….. For the respondent No. 5
-With-
CONTEMPT PETITION NO. 102 OF 2019
(Arising out of Writ Petition No. 16088 OF 2018)
IN THE MATTER OF:
Mohammad Nur Alam
... Contempt-Petitioner -Versus-
Bulbul Ahmed, Senior Assistant Secretary, Bichar Sakha-7, Ministry of Law, Justice and Parliamentary Affairs and another
... Contemnor-Respondents Ms. Sufia Ahamed, Advocate
.....For the contempt-petitioner Mr. Ahmad Naquib Karim, Advocate
….. For the contemnor-respondent No. 1
Heard on 24.11.2022 Judgment on 07.12.2022
Present:
Mr. Justice J.B.M. Hassan
and
Mr. Justice Razik-Al-Jalil
1
J.B.M. Hassan, J:
By filing an application under Article 102 of the Constitution,
the petitioner obtained the Rule Nisi in the following terms:
“Let a Rule Nisi be issued calling upon the respondents to show cause as to why the Memo No. Bichar-7/2N- 40/2012-42 dated 22.01.2018 issued by the respondent No. 2 (Annexure-D), the Biggapti under Memo No. 2786(8) dated 01.4.2018 issued by the respondent No. 4 (Annexure-E) and the ‘Panel’ prepared on 10.06.2018 (Annexure-F) pursuant thereto for granting Nikah Registrar licence for the newly constituted Ward No. 65 of Dhaka South City Corporation (comprising erstwhile Ward Nos. 7, 8 & 9 under Matuail Union) should not be declared illegal, without any lawful authority and of no legal effect and/or pass such other or further order or orders as to this Court may seem fit and proper.”
After issuance of the Rule on 17.12.2018, the contemnor- respondent No. 1 issued the memo No. ¢hQ¡l-7/He-102/2018-738 dated 18.12.2018 appointing the respondent No. 5 as Nikah Registrar of Ward No. 65 of the Dhaka South City Corporation. In the circumstances, at the instance of writ petitioner the following Contempt Rule was issued against the contemnor-respondent No. 1, namely, Mr. Bulbul Ahmed, Senior Assistant Secretary and another in
the Contempt Petition No. 102 of 2019:
“Let a Rule be issued calling upon the respondent- contemnors to show cause as to why a proceeding for contempt of Court should not be drawn up against them
for disobeying the order of status quo dated 17.12.2018 passed by this Division in Writ Petition No. 16088 of 2018 and why they should not be punished for committing contempt of Court and/or pass such other or further order or orders as to this Court may seem fit and proper.”
Relevant facts leading to issuance of both the Rules are that having the requisite qualifications, the petitioner was appointed as temporary Nikah Registrar under Rule 6(ka) of the “j¤p¢mj ¢hh¡q J a¡m¡L (¢ehåe) ¢h¢dj¡m¡, 2009” shortly, the Rules, 2009 vide Memo No. ¢hQ¡l- 7/He-160/80(Awn-1)-1432 dated 04.11.2013 for the area of the then Wards No. 7, 8 and 9 under the Matuail Union Parishad, Police Station-Demra, District-Dhaka. Subsequently, the petitioner’s area was included within the Dhaka South City Corporation (“DSCC”) along with other area as Ward No. 65.
Upon inclusion and delimitation of the erstwhile Wards No. 7,
8 & 9 of Matuail Union Parishad as a newly constituted Ward No. 65
of the DSCC, the respondent no. 2 issued a letter vide memo no. Bichar-7/2N-40/2012-42 dated 22.01.2018 directing the District Registrar, Dhaka (respondent no. 4) to prepare a Panel for appointment of Nikah Registrar for the newly constituted Ward No.
65 of the DSCC. The said memo was issued without any intimation to
or making any provision for the petitioner who has already been
appointed and performing functions in the said area under old Union Parishad as Nikah Registrar for over 5 (five) years.
Pursuant to said direction, the District Registrar (respondent no. 4) secretly generated a purported notification (‘Biggapti’) bearing Memo No. 3786(8) dated 01.04.2018 inviting applications for appointment of Nikah Registrar for the area of newly constituted Ward No. 65 of the DSCC. The said notification was neither circulated on time nor was widely circulated or published anywhere. The petitioner went to the office of the District Registrar on 08.04.2018 but did not find the ‘Biggapti’ on the notice Board. He again went to the respondent’s said office on 16.04.2018 and on inquiry came to know that the said ‘Biggapti’ was not for publication but a copy thereof was found affixed in the notice Board. The petitioner obtained a photocopy of the same from office of the District Registrar (respondent No. 4) on 16.04.2018 at around 4:00 pm.
The respondent no. 4 deliberately concealed the ‘Biggapti’ with a malafide intention of securing the appointment of the candidate of his choice. The said respondent intentionally inhibited publication and wide circulation of the said ‘Biggapti’ as a cunning device to sideline the petitioner and to frustrate his legitimate expectation to be appointed as permanent Nikah Registrar of the newly constituted Ward No. 65 of the DSCC.
The District Registrar (respondent no. 4) had the candidate of his choice, the respondent no. 5. Thus, upon submission of applications by some other ‘dummy’ candidates alongwith respondent No. 5, the District Registrar on 10.06.2018 prepared a Panel of recommended three candidates (respondent nos. 5-7) for appointment as permanent Nikah Registrar for the newly constituted Ward No. 65 of the DSCC.
Thereafter the local Member of Parliament issued a D.O. letter on 11.6.2018 recommending the respondent No. 5 to appoint him as Nikah Registrar for the said area.
In the aforesaid circumstances, challenging the initiative for appointment of Nikah Registrar, the circular and the Panel, the petitioner filed this writ petition. After preliminary hearing, the petitioner obtained the present Rule Nisi on 17.12.2018 along with an ad interim order directing the parties to maintain status quo relating to the impugned circular dated 01.04.2018 and the Panel dated 10.06.2018. But on the very next day (18.12.2018) finding the appointment of respondent No. 5, the petitioner also filed Contempt Petition No. 102 of 2019 and obtained a Rule therein.
The respondent No. 5 (appointed Nikah Registrar by the impugned order) appearing in the Rule Nisi has filed an affidavit-in- opposition contending, inter alia, that after inclusion of the relevant area of Matuail Union Parishad within the DSCC as Ward No. 65, the
respondents took initiative for appointment of Nikah Registrar for the said vacant area in accordance with the Rules, 2009. Accordingly, the ministry required the District Registrar vide Memo dated 22.01.2018 to take step in this regard. On the basis of said office order, the District Registrar, Dhaka published recruitment circular on 01.04.2018. Pursuant to the said circular, 9 (nine) candidates made applications and amongst them the Advisory Committee constituted under Rule 3 of the Rules, 2009 prepared the Panel on 10.06.2018 including the respondent No. 5 and two others (Annexure-F). From the said Panel the respondents selected the respondent No. 5 as Nikah Registrar and accordingly by the Memo dated 17.12.2018 the respondent No. 5 was asked to deposit the required fees towards appointment as Nikah Registrar and on the very next day on 18.12.2018 issued the order of appointment in favour of respondent No. 5. Although the Rule Nisi and an interim order of status quo was issued on 17.12.2018 but it was not in the knowledge of the respondents. Moreover, the appointment letter was subject to interim order of any Court. Therefore, there is nothing illegality in the appointment process and appointing the respondent No. 5.
The contemnor-respondent No. 1 appearing in the Contempt Rule has filed an affidavit stating that the contemnor-respondent did not have the knowledge about the Court’s order passed on the very previous day. However, he tenders unconditional apology for committing any wrong in passing the impugned order of appointment.
After placing the writ petition and other materials on record including supplementary affidavit, Ms. Sufia Ahamed, learned Advocate for the petitioner submits that although the petitioner was functioning as Nikah Registrar having the temporary appointment in the relevant area under the then Union Parishad, but after constituting ward by the said area under City Corporation, the respondents in a secret manner made the recruitment circular without publishing the same in accordance with Rule 6(3) of the Rules, 2009 and thereby creating a Panel securing appointment of respondent No. 5 violated the Rules, 2009. She further submits that in the purported Panel, the respondents included two other candidates from different wards (Wards No. 66 and 64) in order to make the respondent No. 5 as sole fit candidate for ensuring his selection. She also submits that the Panel for appointing the respondent No. 5 was not prepared in accordance with the Rule 3 of the Rules, 2009 inasmuch as neither the Deputy Commissioner nor his representative was present nor there was relevant ward councilor in the meeting of Advisory Committee for preparing the Panel. As such, the Panel was a nullity and so consequence thereupon i.e. the appointment was also nullity. She again submits that the respondents took all measures to appoint the respondent No. 5 including issuance of D.O. letter by the local Member of Parliament issued on the very next day of preparing the Panel and thus all actions of the respondents in appointing the respondent No. 5 was malafide in order to keep the petitioner out of the total recruitment process.
On the other hand, Mr. Mohammad Imam Hossain, learned Advocate for the respondent No. 5 contends that the Advisory Committee was constituted in accordance with Rule 3 of the Rules, 2009 including all the relevant persons. Although presence of the Deputy Commissioner does not reflect in the meeting but only because of his absence the Panel shall not be invalid as it was constituted following the provisions of Rule 3 of the Rules, 2009. He further contends that the relevant ward along with other wards were newly constituted under the DSCC, due to which, at the relevant time there was no elected Councilor for the relevant area. However, the authorised representative of the City Corporation participated in the Advisory Committee meeting to prepare Panel having the authority in accordance with sections 46(1) and 62 of the Local Government (City Corporation) Act, 2009 (“the City Corporation Act, 2009”). He also contends that the appointment letter and the Panel do not reflect that those were made following any D.O. letter and as such, it cannot be said that the appointment of respondent No. 5 was made pursuant to any D.O. letter of the local Member of Parliament.
Mr. Ahmad Naquib Karim, learned Advocate appearing for the contemnor-respondent No. 1 in Contempt Rule submits that the contemnor-respondent No. 1 had no knowledge about the interim order of statusquo passed on the very previous day of passing the impugned order of appointment. He also submits that upon a bonafide understanding and conception, contemnor-respondent issued the letter of appointment as he was proceeding with the said appointment process from the previous days before passing any interim order. He further submits that the contemnor-respondent mentioned in the appointment letter that the appointment would be effected subject to any interim order of any Court. He however, submits that for any mistake or error the contemnor-respondent tenders unconditional apology before the Court.
We have gone through the writ petition, contempt petition, affidavit-in-opposition filed by the respondent No. 5 in writ petition, affidavit filed by contemnor-respondent in the contempt Rule as well as other materials on records including supplementary affidavits filed by the parties on different dates.
The petitioner was appointed as temporary Nikah Registrar for the Wards No. 7, 8 and 9 of the then Matuail Union Parishad, Demra Police Station under District-Dhaka. In the meantime, the said area along with other areas were included within the Dhaka South City Corporation (“DSCC”). The relevant areas appertaining to previous wards No. 7, 8 and 9 under Union Parishad have been converted as ward No. 65 under the DSCC. Therefore, so far as Nikah Registrar is concerned, the areas of the newly constituted ward under the DSCC, has become vacant due to its inclusion under the DSCC and the Nikah Registrar has to be appointed afresh for the relevant vacant area. The petitioner’s very assertion is that he was not aware about the recruitment circular because it was not published following Rule 6(3) of the Rules, 2009 and so he could not participate in the recruitment process.
On the other hand, learned Advocate for the respondent No. 5 has drawn our attention to the recruitment notice showing that it was properly affixed to the notice Board for the purpose of wide circulation.
Therefore, in view of this submission and counter submission, we are not entering into the dispute. But as we find from the notice itself that the notice was circulated through the notice Board and other relevant area and so, we hold that the notice was duly published.
Questioning the very constitution of the Advisory Committee, the next issue arises regarding preparation of the impugned Panel by the Advisory Committee. The Advisory Committee shall be constituted in accordance with Rule 3 of the Rules, 2009 which runs as follows:
“3z ¢p¢V L−fÑ¡−lne Hm¡L¡u ¢eL¡q ®l¢SØVÊ¡l m¡C−p¾p j”¤l£l SeÉ Ef−cø¡ L¢j¢Vz- (1) ¢p¢V L−fÑ¡−lne Hm¡L¡d£e ®k pwpc pc−pÉl ¢ehÑ¡Qe£ Hm¡L¡u ¢eL¡q ®lSØVÊ¡−ll m¡C−p¾p j”¤l Ll¡ qC−h, a¡q¡−L Ef−cø¡ L¢lu¡ ¢ejÀh¢ZÑa pcpÉ pjeÄ−u HL¢V Ef−cø¡ L¢j¢V N¢Wa qC−h, kb¡x-
(2) pw¢nÔø Ef−cø¡ Eš² L¢j¢Vl pi¡u pi¡f¢aaÄ L¢l−he, a−h ay¡q¡l Ae¤f¢ÙÛ¢a−a, pw¢nÔø Ef−cø¡l f§hÑ¡e¤−j¡ceœ²−j, pw¢nÔø ®Xf¤¢V L¢jne¡l h¡ avLaѪL j−e¡e£a HLSe A¢a¢lš² ®Xf¤¢V L¢jne¡l pi¡u pi¡f¢aaÄ L¢l−hez” (Underlines supplied)
On perusal of the aforesaid Rules, it is apparent that there shall be four persons including (a) the Advisor who would be local Member of Parliament and other 3(three) members are: (b) concerned Deputy Commissioner (DC) or his nominated Additional Deputy Commissioner (ADC) (c) District Registrar of the concerned area who is also be a Member-Secretary of the Committee of the Panel and (d) Ward Councilor/Commissioner of the concerned Ward.
Sub-rule (2) provides that the Advisor shall preside over the meeting but in his absence the Deputy Commissioner (DC) or his representative shall preside over the meeting subject to consent of the Advisor. Similarly, the Rule 3(1)(ka) provides that in absence of Deputy Commissioner, any Additional Deputy Commissioner to be nominated by the Deputy Commissioner shall participate in the meeting of Advisory Committee to prepare Panel.
Rule 3(1)(kha) and 3(1)(Ga) do not provide any such alternative in the absence of designated persons. In other words rules 3(1)(kha) and 3(1)(Ga) required presence of aforementioned persons in the manner as provided therein. But from the minutes of the meeting of Advisory Committee, we find that the Deputy Commissioner or his nominated Additional Deputy Commissioner was not present. Secondly, in place of Ward Councilor, a representative on behalf of the Chief Executive Officer of the Corporation participated in the Advisory Committee meeting. This being the scenario, learned Advocate for the petitioner submits that the Panel was not prepared by the proper Advisory Committee in accordance with Rule 3.
In this regard, learned Advocate for the respondent No. 5 submits that section 46 of the Local Government (City Corporation) Act, 2009 authorises the Mayor, Councilor or any other officer to exercise any power and or to function on behalf of the Corporation under the Act, 2009 and that the Chief Executive Officer (CEO) of the Corporation shall execute all the functions of the Corporation and responsible thereto having authority under section 62 of the Act, 2009. Thus, the Chief Executive Officer has the authority to nominate any person on behalf of the Corporation in the Advisory Committee meeting as per requirement of Rule 3 of the Rules, 2009.
To appreciate above submission, we have examined sections 46 and 62 of the City Corporation Act, 2009 which run as follows:
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Although the CEO and his representatives can function on behalf of the City Corporation in accordance with sections 46 and 62 of the Act, 2009 but those functions are under the Corporation Act, 2009. They cannot meet the requirement of Rule 3 of a different law i.e. the Rules, 2009 which specifically required the presence of Ward Councilor only in the meeting of the Advisory Committee.
Rule 3 of the Rules, 2009 does not incorporate any clause as to quorum of the meeting of Advisory Committee for preparing the Panel. It just plainly incorporates the provision that to prepare Panel within the City Corporation the Councilor of the relevant ward shall be one of the members of the Advisory Committee so that an effective participation can be made in preparing Panel about the candidates to be selected from local inhabitants of the respective ward by their public representative.
Further Rule 3 of the Rules, 2009 requires the presence of the Deputy Commissioner (DC) or any Additional Deputy Commissioner to be nominated by the DC but it does not reflect in meeting of Advisory Committee to prepare the present Panel.
Moreover, by filing supplementary affidavit learned Advocate for the petitioner submits that before election of Ward Councilor in the newly constituted area under the City Corporation, in particular, the present area shall be treated within the area of Tejgaon circle (Annexure-5, 6 and 7 to the supplementary affidavit filed by the petitioner on 05.12.2022) for the purpose of administrative functions and therefore, before taking any oath by the new Ward Councilor of the relevant ward, the authorised person of the City Corporation cannot be the alternative within the requirement of Rule 3 of the Rules, 2009.
From the above discussions, we are led to hold that the Advisory Committee was not constituted in accordance with Rule 3 of the Rules, 2009 in preparing the Panel and thereby appointing the respondent No. 5.
Thus, we are of the view that Advisory Committee meeting was not held by the required persons in accordance with law and as such the Panel prepared by the said committee was coram non judice. Resultantly, the appointment of respondent No. 5 was a nullity and so it cannot sustain in the eye of law.
We also find that in the Panel except the respondent No. 5, the other two candidates were from different wards which is also not supported by Rule 8 of the Rules, 2009.
Considering all aspects, we are led to hold that the appointment of respondent No. 5 was not done in accordance with law. Therefore, the respondents should initiate the process of appointing permanent Nikah Registrar afresh by well circulation of the recruitment notice in accordance with rule 6(3) of the Rules, 2009. Thus, the Rule Nisi finds merit.
However, learned Advocate for the petitioner submits that the petitioner is entitled to remain as temporary Nikah Registrar unless the regular appointment is done in accordance with Rule 6Ka of the Rules, 2009.
We have gone through the provisions of Rules 6(10) and 6ka of the Rules, 2009 which runs as follows:
“6(10)| †Kvb wbKvn †iwR÷ªv‡ii jvB‡m‡Ýi Kvh©KwiZvi Aemvb NwU‡j
A_ev wbKvn †iwR÷ªv‡ii bZzb †Kvb Awa‡ÿÎ m„wó nB‡j mswkøó †iwR÷ªvi
ev †Rjv †ÿÎgZ †Rjv †iwR÷ªv‡ii c~ev©by‡gv`bµ‡g mve †iwR÷ªvi D³ wbKvn †iwR÷ªv‡ii Awa‡ÿ‡Î †h Iqv‡W©i mwnZ mswkøó Dnvi msjMœ (mwbœKUeZ©x) Iqv‡W©i wbKvn †iwR÷ªvi‡K, D³ wbKvn †iwR÷ªv‡ii (wbKvn †iwR÷ªv‡ii jvB‡m‡Ýi Kvh©KiZvi Aemvb A_ev bZzb †Kvb Awa‡ÿÎ m„wói †ÿ‡Î) `vwqZ¡, AbwaK GKkZ wek w`‡bi Rb¨, AwZwi³ `vwqZ¡
cÖ`vb Kwi‡Z cvwi‡et
Z‡e kZ© _v‡K †h, GB wewagvjvi Aaxb bZzb wbKvn iwR÷ªv‡ii (wbKvn †iwR÷ªv‡ii jvB‡m‡Ýi Kvh©KiZvi Aemvb A_ev bZzb †Kvb Awa‡ÿÎ m„wói †ÿ‡Î) jvB‡mÝ cÖ`v‡bi m‡½ m‡½ D³ AwZwi³ `vwqZ¡ cvjbKvix wbKvn †iwR÷ªvi‡K AewnZ Kwi‡Z nB‡e Ges GBiæc AewnZ Kwievi mgq
nB‡Z ¯^qswµqfv‡e wbKvn †iwR÷ªv‡ii D³ AwZwi³ `vwq‡Z¡i mgvwß NwU‡e Ges Dnvi †Kvb AvBbMZ ˆeaZv _vwK‡e bv| . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6Lz ¢eL¡qÚÚ ®l¢SØVÊ¡¡−ll AÙÛ¡u£ m¡C−p¾p fËc¡−el SeÉ ¢h−no ¢hd¡ez- (1) HC ¢h¢dj¡m¡ AeÉ¡eÉ ¢hd¡−e k¡q¡ ¢LR¤C b¡L¥L e¡ ®Le, BCe J HC ¢h¢dj¡m¡l ¢hd¡e Ae¤p¡−l ®L¡e ¢eL¡qÚ ®l¢SØVÊ¡−ll n§eÉ f−c, ¢h¢d 6 Hl ¢hd¡e Ae¤p¡−l ®L¡e ¢eL¡qÚ ®l¢SØVÊ¡l−L m¡C−p¾p fËc¡e e¡ Ll¡ fkÑ¿¹, plL¡l ®L¡e hÉ¢š²−L, ¢h¢d 8 H E¢õ¢Ma ®k¡NÉa¡ b¡L¡ p¡−f−r, AÙÛ¡u£i¡−h ¢eL¡qÚ ®l¢SØVÊ¡−ll m¡C−p¾p fËc¡e L¢l−a f¡¢l−hz
After inclusion of the said area within the city corporation as Ward No. 65 it has become vacant area and till now there is no appointment either temporary or permanent.
Since at the moment there is no Nikah Registrar in the vacant area of the newly constituted Ward No. 65 and the process of recruitment of Nikah Registrar is going to be started, the respondents shall appoint a temporary Nikah Registrar to any Nikah Registrar of adjacent area in accordance with Rule 6(10) of the Rules, 2009 for the time being.
Regarding the Contempt Rule, we find that the Rule Nisi and the interim order of status quo in Writ Petition No. 16088 of 2018 was passed on 17.12.2018 while the letter of appointment of respondent No. 5 was issued on the very next day i.e. 18.12.2018. Moreover, the appointment letter itself was subject to any interim order of any Court. Therefore, considering all these aspects we are accepting the apology tendered by the contemnor-respondents and hence, they are exonerated from the proceeding.
In the result:
The Rule issued in Contempt Petition No. 102 of 2019 is discharged.
The Rule Nisi issued in writ petition No. 16088 of 2018 is made absolute.
The appointment letter bearing No. ¢hQ¡l-7/He-102/2018-738 dated 18.12.2018 issued by the respondent No. 2 (Annexure-M) is hereby declared to be without lawful authority and of no legal effect.
The respondents shall initiate the recruitment process for appointment of new Nikah Registrar for the ward No. 65 of the DSCC within one month from the date of receipt a copy of this judgment and shall conclude the same within next 3(three) months.
Communicate a copy of the judgment and order to the respondents at once.
Razik-Al-Jalil, J:
I agree.