IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

WRIT PETITION NO. 2490 of 2022

IN THE MATTER OF:

An  application  under  Article  102  of  the Constitution  of  the  People’s  Republic  of Bangladesh.

-AND-

IN THE MATTER OF:

Md. Siddiqur Rahman and another

                                                                            ………..Petitioners

-Versus-

Secretary,  Medical  Education  and  Family Welfare  Division,  Ministry  of  Health  and Family Welfare, Government of the People’s Republic  of  Bangladesh,  Bangladesh Secretariat, Ramna, Dhaka and others

            ...........Respondents

Mr. Md. Imam Hossain, Advocate with

Mr. Md. Selim Hasan, Advocate

                                                        ……...For Petitioners

Mr. B. M. Elias Kachi, Advocate with

Mr. Dipayan Saha, Advocate

          ..For Respondent No. 1 Mr. Jyotirmoy Barua, Advocate with

Mr. Suprokash Datta, Advocate

...For Respondent No. 9 Mr. Fida M. Kamal, Senior Advocate with Mr. Syed Haider Ali, Advocate, with

Mr. S. M. Quamrul Hasan, Advocate and Mr. Md. Mashiur Rahman (Riad), Advocate

      ….For Respondent Nos. 13

Heard  on:  14.03.2023,  15.03.2023,

11.06.2023&19.06.2023 Judgment on: 21.06.2023

        Present:

Mr. Justice Mahmudul Hoque

                    &

Mr. Justice Md. Mahmud Hassan Talukder

Mahmudul Hoque, J:

In this application under Article 102 of the Constitution of the People’s Republic of Bangladesh, a Rule Nisi under adjudication was issued on 01.03.2022 in the following terms:

“Let a Rule Nisi be issued calling upon the respondents to show cause as to under what authority the respondent No. 13 is holding the post of Deputy Registrar of Bangladesh Nursing and Midwifery Council (BNMC) and as to why inaction of the respondent Nos. 1 to 9 and 14 in taking necessary actions against the respondent No. 13 and the Selection Committee consisting of respondent Nos. 10 to 12 for adopting unlawful and corrupt means by abusing their positions as public servants in the recruitment process of respondent No. 13 in the post of Deputy Registrar of Bangladesh Nursing and Midwifery Council (BNMC) should not be declared to be without any lawful authority and is of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.”

Facts necessary for disposal of the Rule Nisi in short are that,

Bangladesh Nursing and Midwifery Council (“BNMC”) is the

statutory body which governs and administer the responsibilities that

was conferred upon it vide evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 including nursing and midwifery education and practices.

BNMC has the authority to affiliate such institutions who provide the

academic courses and training programmes for nursing, midwifery

and allied courses like community paramedics. Therefore, the

involvement and role of BNMC is indispensable in enhancing nursing service by leading the profession towards constituting a significant force in the health care delivery system for achieving the goal‘Health for All’ congruent with national health goals of the Government.

Bangladesh Nursing Council issued an Advertisement Notice for appointment contained in memo No. weGbwm/2016/567dated 07.09.2016 under the signature of respondent No. 11 for appointment in the posts of ‘Deputy Registrar’, ‘Assistant Programmer’ and ‘Receptionist’ (Annexure-A to the Writ Petition). In order to complete the appointment procedure a 3 (three) member committee comprising respondent Nos. 10, 11 and 12 was formed. However, from the minutes of the Selection Committee dated 07.10.2016, it transpires that only 2 (two) members i.e. respondent Nos. 11 and 12 put their signatures in the said resolution but the Convener of the said committee, respondent No. 10, did not sign the resolution which indicates that the selection of the candidates, including the ‘Deputy Registrar’, was questionable from the beginning and was not done in accordance with law. Despite the said irregularity, respondent No. 11 vide memo No. weGbwm/cªkvt-70(Ask-2)/2016/617dated 09.10.2016 requested respondent No. 1 for approval of the result of the examination (Annexure-B-1 to the Writ Petition). Thereafter, respondent No. 1 vide memo No. weGbwm/2016/cªkv-70(Ask-1)/629 dated 10.10.2016 appointed respondent No. 13, Mrs. Begum Rashida Akhter, in the post of ‘Deputy Registrar’ of BNMC (Annexure -B-2). Subsequently, the service of the respondent No. 13 in the post of Deputy Registrar was made permanent on 07.08.2017.

Thereafter, various other reports had been published in different national dailies and online news portal of the country regarding the illegal selection and appointment of respondent No. 13. For example,

it has been reported in the daily newspaper namely the ‘Daily Inquilab’ and online news portals like, Banglanews24.com under the headline ‘Z_¨ †Mvcb K‡i †iwRóªvi nIqvi †Póv Ges KvDw݇ji †WcywU †iwRóªvi n‡”Qb Av‡jvwPZ †mB ivwk`v’. The petitioners being conscious citizens of the country submitted 4 (four) applications dated 04.03.2020, 30.05.2020, 04.10.2020 and 03.01.2021 respectively, to the Hon’ble Minister, Ministry of Health and Family Welfare; Secretary, Medical Education

and Family Welfare Division, Ministry of Health and Family Welfare;

the Registrar of BNMC and Chairman of Anti-Corruption Commission urging them to take necessary and appropriate actions against the illegal recruitment of respondent No. 13 in the post of Deputy Registrar (Annexure-C to C-3 to the Writ Petition). After receiving the complaints regarding illegal recruitment of respondent

No. 13, the Anti-Corruption Commission, without taking any action referred the matter to respondent Nos. 1 and 9 vide memo  dated 01.11.2021 and 05.12.2021 consecutively, in violation of section 17

and 28(Kha) of Anti-Corruption Commission Act, 2004. Thereafter,

respondent No. 1 formed a 1 (one) member enquiry committee consisting of respondent No. 8, namely Mohammad Daudul Islam, the then Deputy Secretary (Construction Wing), Medical Education and Family Welfare Division, Ministry of Health and Family Welfare. The enquiry was conducted in accordance with law with participation of both the parties, petitioners and respondent No. 13, and the report was submitted on 03.02.2022 (Annexure-F to the Writ Petition). The said enquiry report found the allegation brought regarding appointment of respondent No. 13 in the post of ‘Deputy Registrar’ of BNMC in violation of several Government Service Recruitment Rules and Regulations. The inquiry report also mentioned the fact of suppression of some material facts in order to secure the job and even the appointing authority deliberately and illegally avoided to obtain the police clearance about her antecedents.

After that, petitioners sent notice demanding justice to the respondent Nos. 1 to 9 and 13, to explain as to under what authority respondent No. 13 is holding the post of Deputy Registrar of BNMC. Nonetheless, getting no response from the respondents, petitioners filed the instant Writ Petition No. 2490 of 2022 on 17.02.2022 under article 102(2) of the Constitution and obtained Rule Nisi on 01.03.2022 in the manner as quoted hereinabove.

By filing supplementary affidavit dated 07.06.2023 the petitioners have stated that the recruitment notice dated 13.02.2013

and 21.04.2013, for the post of “Deputy-Registrar”, was published in

the “Daily Ittefaq” (Annexure-N and N-1 to the Supplementary Affidavit). Similarly, BNMC for recruiting in the post of “Deputy

Registrar” published the advertisement for the job in well circulated

daily newspapers (e.g. Daily Ittefaq etc.) even after the recruitment

notice dated 07.09.20216, vide which Respondent No. 13 was appointed. For example, recruitment notice dated 31.10.2019, for the

post of “Deputy-Registrar”, was published in the “Daily Ittefaq” (Annexure-N-2 to the Supplementary Affidavit) and recruitment

notice dated 13.01.2020, for the post of “Deputy-Registrar”, was

published on the “Daily Ittefaq” (Annexure-N-3, Supplementary Affidavit). However, only in the instant case the advertisement, vide

which Respondent No. 13 was appointed, was published on 07.09.20216 only in the website of BNMC, which converted the publication of the advertisement from public to private. It is also

stated that the said advertisement notice dated 07.09.2016 was found

in the website of the BNMC on 05.08.2020 long after the respondent

No. 13 being appointment to the post of Deputy Registrar. It is also

stated that the ÒmiKvwi PvKwi‡Z wb‡qv‡Mi wk¶vMZ †hvM¨Zv wba©viY (we‡kl weavb), wewagvjv, 2003Ó was not complied with in case of appointment of the respondent No. 13 in the post of Deputy Registrar (Annexure – O to

the Supplementary Affidavit).

Respondent Nos. 1, 9 and 13 contested the Rule Nisi issued in the instant writ petition by filing affidavit-in-opposition.

Respondent No. 1 filed affidavit-in-opposition denying the material allegations made in the writ petition contending inter-alia that the petitioners have no locus standi to file the writ petition. The allegation of appointing respondent No. 13 by adopting illegal and unfair means and violating the provision of the Service Rules is not correct and as such, the Rule Nisi is liable to be discharged.

Respondent No. 9 filed affidavit-in-opposition denying the material allegations made in the writ petition contending inter-alia that the petitioner No. 1 is a businessman and petitioner No. 2 is an Assistant Professor in Holly Family Nursing College, Dhaka, claiming themselves as conscious citizens of the country filed the instant writ petition in the form of public interest litigation challenging the authority of appointment of respondent No. 13 long after 06 (six) years of the said appointment for achieving the dubious goal. As per the decision of 49 DLR (AD) 1, the petitioners have no locus standi to file the writ petition and as such, the Rule Nisi is liable to be discharged. Although, the petitioners made representations in the year 2021-2022 to the Ministry and Anti-Corruption Commission for taking appropriate action against respondent No. 13 for non-disclosure of fact of pending criminal cases during her appointment, they did not come before this Court to establish any public right but only to serve their selfish end which is not allowed in case of writ of quo warranto. It is also stated that the writ petition is admixture of quo warranto and certiorari and as such, it is not maintainable in its present form.

Respondent No. 13 filed affidavit-in-opposition denying the material allegations made in the writ petition contending inter-alia that after getting appointment in the post of Deputy Registrar, the respondent No. 13 has been serving for more than five years but none of the contesting candidates has come to challenge the appointment of respondent No. 13. The petitioner No. 1 being a businessman and petitioner No. 2 being a lecturer of a Nursing College claim themselves as public interest litigants but they did not mention any reference of their earlier activities regarding filing any such case as PIL to prove their bona fide. Therefore, the claim of the petitioner is totally baseless one and they are not in any manner aggrieved persons within the meaning of article 102 of the Constitution, rather they are busy persons and purposely filed the instant writ petition to harass respondent No. 13. It is also stated that the appointment of the respondent No. 13 in the post of Deputy Registrar, the fundamental rights of the petitioners have not been affected in any manner. Since the petitioners neither represent a section of public nor claimed that any section of public has been aggrieved by the appointment of respondent No. 13 before five years back, as such they cannot be called as aggrieved person under article 102 of the Constitution. It is stated that since by operation of the judgment and order passed by the Appellate Division in Civil Appeal No. 48 of 2000 the Bangladesh Nursing Council Ordinance 1983 lost its force and repealed, the Government has decided to formulate a new law for the public interest to manage and maintain the Bangladesh Nursing and Midwifery Council and as such, it promulgated Bangladesh Nursing and Midwifery Council Act, 2016 and, before promulgation of such Act and in the absence of any recruitment Rules, to meet the legal necessity of the Council and to carry out its business, the respondent No. 13 has been appointed as Deputy Registrar in accordance with practice and procedure of the council being a statutory body. Regarding educational qualification it is stated that she passed S.S.C Examination in 1989 with Second Division from Joydebpur Government Girls High School, H.S.C Examination in 1991 with Second Division from a Government College, Dhaka, Diploma in General Nursing in 1992 from Holy Family Red Crescent Nursing Institute, Diploma in Midwifery in 1993 from the said institute, B.Sc. (Public Health) Nursing in 2003 from College of Nursing Dhaka under University of Dhaka and Masters in Public Health regarding Hospital Administration and Management in 2010 from the State University of Bangladesh and at present she is attending in Ph.D Program at American University and she also got license to perform as a Nurse from Bangladesh Nursing and Midwifery Council, Dhaka

It is also stated that the Government has approved the organogram creating different posts to carry out the business of Bangladesh Nursing Council treating the Council as Regulatory Body and such approval has been forwarded to the Registrar of the Council from the office of the respondent No. 1 by Memo dated 24.04.1994 (Annexure – 3 to the Affidavit-in-Opposition) including the post of Deputy Registrar, though there was no appointment Rules at the relevant time and as such, to carry out the business of the Council and to fill up the vacancy, a sub-committee headed by Additional Secretary, Ministry of Health and Family Welfare (Discipline and Nursing) along with two other officers was formed who in a meeting held on 05.09.2016 decided that the appointment for the post of Deputy Registrar and other posts shall be made and accordingly, recruitment notice was published in the official website of the Bangladesh Nursing Council and also affixing on the official notice board on 07.09.2016. The respondent No. 13 having all requisite qualification applied to the authority concerned for the post of Deputy Registrar and she was issued admit card on 03.10.2016 and appeared in the written test on 07.10.2016 and stood first in the written test and viva voce, resultantly she was appointed in the post of Deputy Registrar exhausting all formalities and obtaining approval of the Executive Committee of the Council. Thereafter, the respondent No. 13 joined in the service on 16.10.2016 and her service was made permanent from 01.08.2017 vide office order dated 07.08.2027. It is also stated that the former Registrar Mrs. Suria Begum retired from the service on 19.01.2022 and the respondent No. 13 being Deputy Registrar filed application to the authority concerned for the post of Registrar by way of promotion and by order dated 18.01.2022 she was given additional charge of the Registrar until further order by the

Mr. Md. Imam Hossain along with Mr. Md. Selim Hasan, learned Advocates for the petitioners, submit that the instant writ petition is a writ of ‘quo warranto’ under Article 102(2)(b)(ii) of the Constitution of the People’s Republic of Bangladesh in which the legality of holding the post of Deputy Registrar of BNMC by respondent No. 13 as well as writ of certiorari under Article 102(2)(a)(ii) of the Constitution of Bangladesh for abusing the position by the authority have been challenged. The challenge is made on various grounds, including the ground that the authority abused their position and the possessor of the office in question does not fulfill the requisite qualifications rather suffers from disqualification and holding the office without valid title, which debars the respondent No. 13 to hold such office. In this regard Mr. Hossain commenced his argument by referring a decision quoted in “Constitutional Law of Bangladesh” by Mahmudul Islam(3rdEdn, 2012, Paragraph 5.112) submitting that “The writ is used to ensure that no one can hold any public office without having a valid claim to that office (University of Mysore v. Govindrao, AIR 1965 SC 491).”

He submits that in the case of University of Mysore v. Govinda

Rao, AIR 1965 SC 491 : [1964] 4 SCR 575 the Supreme Court of

India observed that quo warranto proceeding affords judicial enquiry

in which any person holding independent substantive public office or

franchise or liberty is called upon to show by what authority or right

he holds the said office or franchise or liberty and if the enquiry leads

to finding that the holder of the office has no authority or title to it,

issue of the writ of quo warranto for ousting him/her from that office

is the right remedy. In other words, the procedure of quo warranto

confers jurisdiction and authority on the Court to control executive

action in the matter of making an appointment to public office against

relevant statutory provision, as such the petitioners have rightly filed

the writ of quo warranto as the instant writ petition has impugned the

legal stance of holding the post of Deputy-Registrar of BNMC by respondent No. 13, with additional charge of Registrar at the time of

filing instant writ petition, which gave her the sovereignty to exercise

her power vested by evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016. In support of his submissions he cited the reference from the book on “Constitutional Law of Bangladesh” authored by Mahmudul Islam

(3rdEdn, 2012, Paragraph 5.113) in which the author opined that “If

there was any complaint about the appointment of or promotion of an

officer who was not eligible under the rules to be appointed or

promoted, the proper remedy was to make an application for quo warrant (Ghulam Hussan v. India, 1973 SC 1138).”

He pointed out by an analytical argument that, the definition of ‘public office’ as defined in Abdur Rahman (Md) Vs. Group Captain (Retd) Shamim Hossain & ors.  (49 DLR (1997) 628) is not comprehensive and inconsistent with the definition of ‘public office’ evolved by other constitutional Jurists in other jurisdictions (e.g. USA, India, Pakistan etc.). He submits that, in  Abdur Rahman (Md) Vs. Group Captain (Retd) Shamim Hossain & ors. case the Hon’ble Court clearly recognized that Article 152 of the of the Constitution of the People’s Republic of Bangladesh has not defined “public office” rather the Constitution has defined “public officer”. He argued that ‘functions’ of a body is a determining factor and the test should be applied in order to define a public office and in support of argument he referred the book “Constitutional and Administrative Law” by Hilarie Barnett (4th edn) 840, in which the author emphasized on functions as a determining test that “In determining whether or not the body whose decision is being challenged on an application for judicial review is a public, as opposed to private, body, the court will look at its functions. The test is not whether or not the authority is a government body as such, but, rather, whether it is a body exercising powers analogous to those of government bodies.”

He also cited the definition of ‘public office’ as provided in American Jurisprudence (63c Am.Jur. 2d Public Officers and Employees § 1 (2009)).

Mr. Hossain submitted that though defining public office is an inherently legislative task to determine what elements are necessary to constitute a public office, nevertheless, there is no ambiguity on the definition of the ‘public office’ analysed above that clearly resolves the grey area. The definition of public office is being the extent of defining the office is well founded and formulated on the basis of the definition profound by constitutional jurists and by judicial activism through judicial interpretations in relevant cases.

He finally attempted to define the post of respondent No. 13 as public office in the light of definitions as he referred in his submission; because respondent No. 13 has vested with certain permanent duties assigned by the law itself and acting in pursuance of it and the right, authority, and duty vested upon respondent No. 13 has been created and conferred by law. Furthermore, the duties has been casted upon the post of respondent No. 13 is for the benefit of the public, which are continuing in their nature and not occasional, and which call for the exercise of some portion of the sovereignty of the state, or having some of the powers and duties which inhere with the executive departments of the government. He argued that, all these criteria, as he submitted, has clearly established the office of respondent No. 13 is a public office.

In grounding the vital issue for this writ petition he submits that respondent No. 13 is illegally and unlawfully holding a public office

and this is the sole cause of filing the instant writ petition in the nature

of writ of quo warranto as well as certiorari under Article 102. In order to justify his argument, he submits that the appointment of respondent No. 13 was not made by any regular advertisement as it

was done previously and post advertisement for the same post and in

the instant case with an ulterior motive the publication was in website

of BNMC, depriving other qualified persons to make application to

hold the post and thus the whole selection and appointment process

was mala fide, biased and unprecedented, as the purpose of the Act is

to ‘protect the public’ by establishing a comprehensive national system equally applicable for all. This is not the case here. The post in question does not exist pursuant to section 7 of evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016.

Mr. Hossain stresses on the vital issue of non-compliance of the required qualifications for the post at the time of advertisement and appointment. Pursuant to advertisement for the post, the required qualification was “15 years of experience of teaching (nursing) and administrative work”  (Annexure-A to the Writ Petition). The experience of Respondent No. 13 states that she resigned from the post of “senior staff Nurse (B.Sc. & MPH)” vide letter dated 23.10.2010 (Annexure-2-E to the Affidavit in Opposition) which was accepted vide letter date 27.03.2011 (Annexure-2-R to the Affidavit in Opposition). Respondent No. 13 directly appointed in the post of ‘Principal’ (without any prior teaching experience and by breaching

the hierarchy) at “Shahid Monsur Ali Nursing Institute” (Annexure-

2-G to the Affidavit in Opposition). ‘‡mev cwi`ßi Gi Aaxb¯’ Kg©KZ©v I Kg©Pvix‡`i Kvh© cwiwa' (Job Description) published in June, 2007 (page

100) describes the job responsibility of ‘Senior Staff Nurse’ which

clearly shows that the responsibilities of a ‘Senior Staff Nurse’ does

not include the responsibility of ‘teaching’ or ‘administrative work’.

Hence, Respondent No. 13’s experience as “senior staff Nurse”

cannot be considered as teaching/administrative experience. Hence,

the teaching/administrative experience of Respondent No. 13 before appointment in the post of ‘Deputy-Registrar’ was in total only 6

years 7 months 7 days which clearly did not comply the required qualification in terms of teaching and administrative experience for

the said post and that made the   case as of non-compliance.

It is argued that in the instant writ petition, ‘sufficient information’ was available before the administrative authority to

decide the compliance or non-compliance of required qualifications

for the post upon which a reasonable person could have come to the conclusion that the requirement and the eligible criteria for the appointment as advertised were not satisfied by respondent 13, so she was disqualified ab initio (from the right beginning). Despite that statutory non-compliance, the authority appointed respondent No. 13 which is a case of abuse of position and ultra vires for procedural impropriety. He brought to the notice of this Court by referring a part of the inquiry report dated 03.02.2022 against respondent No. 13 (Annexure-F to the Writ Petition) which suggests that this is illegality in the appointment process of the respondent No. 13.

He submits that, citizens’ have procedural legitimate expectation to see whether the appointment of respondent no 13 is made out in accordance with law complying statutory requirements and also to see as to a substantive legitimate expectation that respondent 13 must have satisfied the fit and proper criteria for the post. A citizen has also a legitimate expectation that the public body acts fairly and thus the doctrine extends the procedural protection “duty to act fairly” should not be replaced. It is argued that the decision maker must clearly make a proper decision before dashing the expectation and that requires procedural fairness. Therefore, the instant case is procedurally frustrated for non compliance of required qualifications by the respondent no 13 and non-compliance of mandatory statutory procedure by the authority and thus substantive legitimate expectation was also not protected by the authority. This is a clear case of abusing of position by the authority that’s uphold ultra vires.  

As the petitioners are acting pro bono publico to perform public duties and to serve the people of the Country which are their constitutional obligations under Article 21 of the Constitution of the People’s Republic of Bangladesh and also to secure the provision of basic necessity of medical care for its citizens as per Article 15(a) of the Constitution of the People’s Republic of Bangladesh. In effect, therefore any action taken by any citizen subject to a public cause for violation of public right should be termed as a public interest litigation, because that cause imposes a public duty and that duty may amount to a sufficient interest to confer standing. Citizens with a ‘sincere concern for constitutional issues” have been able to challenge the lawfulness without their standing being called in question.

It is strongly argued that, to file a writ of quo warranto the requirement of being an ‘aggrieved person’ is irrelevant. In support of his argument he cited the relevant argument from the book of “Constitutional Law of Bangladesh” (3rdEdn, 2012, Paragraph 5.116) by Mahmudul Islam and submits that instant writ petition is for a public purpose in a nature of  quo warranto and this is a ‘public interest litigation’, because, the result/outcome of the instant writ petition will not ensure any advantage to the petitioners. In support of

his argument he cited the case of Babu Ram Verman v. State of UP reported in  1971  All  LJ 653,  Bangladesh Sangbadpatra  Parishad (BSP) v. The Government of People’s Republic of Bangladesh and others reported in 12 BLD (AD) (1992) 153, Mustafa Kamal J. in Dr. Mohiuddin Farooque v. Bangladesh reported in 17 BLD (AD) (1997)

1. He further submits that any person pursues a public cause involving public wrong or public injury, he/she need not be personally affected, any member of the public, being a citizen, suffering from common injury can file a public interest litigation and also referred the judgment passed in the case of  Dr. Mohiuddin Farooque vs. Bangladesh, represented by the Secretary, Ministry of Irrigation, Water Resources and Flood Control and others reported in 49 DLR (AD) (1997) 1.  He strongly argued that, even a private interest litigation can be treated as public interest litigation by the Court as observed in Ashok Lanka v. Rishi Disxit, reported in (2005) 5 SCC 598, ShivajiraoNilangekar Patil v. Dr. Mahesh Madhav Gosavi case reported in AIR 1987 SC 294: (1987) 1 SCC 227: and reported in 1988 BLD (AD) 175.

Mr. Hossain addressed the issue whether the writ of  quo warranto and writ of  certiorari can co-exist peacefully in a same prayer of a writ petition. In this regard in the case of Golam Md. Khan Pathan v. Md. Mosharraf Hossain and others (Civil Petition for Leave to Appeal No. 2713 of 2018), the Hon’ble Appellate Division opined

that certiorari and quo-warranto can co-exist peacefully in a prayer of

a single writ petition.

Mr. Hossain finally submits that, there is no such post of

‘Deputy Registrar’ in evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016. Even if there were such post, respondent No. 13 should not have been

appointed because she failed to comply with the required qualification

for the post as mentioned in the advertisement dated 07.09.2016.

Hence, the appointment of respondent No. 13 is void ab initio and

therefore, holding the post of Deputy Registrar by respondent No. 13,

which is a public office, is illegal and without lawful authority. As

such, the writ of quo warranto is satisfied as per Article 102(2)(b)(ii)

of the Constitution. Hence, the salary of respondent No. 13, from the

appointment until now, should be confiscated for her illegal

appointment in the post of Deputy Registrar and any subsequent

appointment. In support of his argument Mr. Hossain referred the case

of R v. Andrewes (Respondent) reported in [2022] UKSC 24, which is

known as CV Fraud Case, in which appointment was obtained by

fraudulent misrepresentation in the application form about

qualification and experience.

Mr. Fida M. Kamal, learned Senior Advocate with Mr. Syed

Haider Ali, learned Advocate, Mr. S. M. Quamrul Hasan, learned

Advocate and Mr. Md. Mashiur Rahman, Learned Advocate

appearing on behalf of the respondent No. 13 at the very outset raised

question of maintainability of the writ petition on the ground of locus standi of the petitioners and admixture of two prayers in the nature of quo warranto and  certiorari. He argued that article 102 of the Constitution does not permit admixture of relief in one petition. He submits that the respondent No. 13 has all requisite qualifications for the post of Deputy Registrar of Bangladesh Nursing Council and as such, as per the recruitment notice dated 07.09.2016 she had applied for the said post and stood first position in both the written test and the viva voce, consequently, she was appointed in the post of Deputy Registrar in which she had no hand in the recruitment process and by this time, she served the Council for more than five years long with full satisfaction of the authority. Regarding the inquiry report and the criminal cases Mr. Fida M. Kamal, submits that in all the criminal cases mentioned in the enquiry report the respondent No. 13 has been discharged/acquitted and as such, the allegation is baseless but a mala fide one in order to harass the respondent No. 13. Accordingly, he submits that the second part of the Rule has got no basis and consequently the respondent Nos. 1 to 9 and 14 against whom the allegation of inaction was made is of no basis and therefore, the terms of the Rule Nisi are totally groundless and the Rule Nisi is liable to be discharged.

Referring to Memo dated 24.04.1994  (Annexure-3 to the Affidavit-in-Opposition), Mr. Fida M. Kamal, submits that the submission made by the learned Advocate for the writ petitioners to the effect that there was no such post of Deputy Registrar is not correct. He submits that at that relevant time there was no appointment rules of Bangladesh Nursing Council to carry out its business and for smooth functioning of the Council initiated appointment process by forming a sub-committee for the purpose and as per decision of the Committee, the Council published advertisement notice in the official website as well as in the official notice board of the Council and after exhausting all legal formalities the respondent No. 13 was appointed in the post of Deputy Registrar and as such, there was no illegality in the appointment process and hence, the Rule Nisi is liable to be discharged.

Mr. Kamal further submits that the petitioners are not the aggrieved persons to file the instant writ petition since, the petitioner No. 1 is the businessman and the petitioner No. 2 is a Lecturer of Nursing College and they have no reference of their earlier activities regarding filing of any such cases in the form of public interest litigation and as such, they have purposely filed the instant writ petition only to harass the writ respondent No. 13 who has in the meantime served for more than five years in the Council. Referring to a decision in the case of Khorshed Ali (Md) v. Secretary, Ministry of Local Government Rural Development and Co-operatives and others, reported in 54 DLR (HCD) 381, he submits that, the respondent No.

13 having all requisite qualifications duly appointed by the Bangladesh Nursing Council and as such, her appointment cannot be questioned on the plea that there were some irregularities in the matter of appointment. Referring to decision in the case of Abdur Rahman (Md) v. Group Captain (Retd) Shamim Hossain and others, reported in 49 DLR (HCD) 628, Mr. Kamal submits that Bangladesh Nursing Council being a statutory authority the respondent No. 13 is not holding the post of Public Office and as such, the writ petition in the form of quo warranto is not maintainable. Referring to a decision in the case of  Dr. Md. Anwarul v. Dr. M. Wahiduzzaman, Vice- Chancellor, Noakhali Science and Technology University and two others, reported in 71 DLR (HCD) 204, Mr. Fida M. Kamal, submits that the writ petition both in the nature of certiorari as well as quo warranto is not maintainable and as such, the Rule Nisi having no merit as well as on the point of maintainability is liable to be discharged.

Heard the learned Advocates of the respective parties and perused the writ petition, supplementary affidavit, affidavit-in- opposition, supplementary affidavit-in-opposition and the supporting documents annexed thereto, as well as the law and decisions relied on by the parties as referred above.

On perusal of the terms of the Rule Nisi issued on 01.03.2022 the prayer of the petitioners can be divided into 2 (two) parts, the first part is that under what authority respondent No. 13 is holding the post of Deputy Registrar of BNMC, which comes within the ambit of writ of quo warranto. The second part is the inaction of the respondent Nos. 1 to 9 and 14 in taking necessary steps against the respondent No. 13 and the Selection Committee, that appointed respondent No. 13, consisting of respondent Nos. 10 to 12 for adopting an illegal and corrupt means by abusing their positions as public servants in the illegal and unlawful recruitment process of respondent No. 13 in the post of Deputy Registrar of BNMC, which falls within the category of writ of certiorari. Before we commence the discussion of the issues of the instant writ petition we want to make it very clear that instant writ petition is not as usual service matter rather a constitutional remedies pursued under Article 102(2)(b)(ii) of the Constitution under which High Court Division can declare the person holding the public office without lawful authority as illegal and usurper in the form of quo warranto. On the other hand, Article 102(2)(a)(ii) of the Constitution under which the High Court Division can declare any act done by any authority, which is neither a judicial nor a quasi-judicial, to be without lawful authority in the form of writ of certiorari. 

Thus, we can certainly say that, the instant writ petition raised constitutional debates, whether writ of quo warranto and certiorari can co-exist peacefully in a same prayer of a writ petition or petitioners could have filed two distinct writ petitions claiming two different remedies. We are inclined, to explore the evolution of writ jurisdiction in different jurisdictions and development of constitutional jurisprudence as to locus standi for these two distinct natures of writ as well as the radius of public interest litigation taking into consideration of Constitutional stance of Article 102 of Bangladesh Constitution and the Judicial stance in this regard. Let’s examine one by one and lead to reach in a conclusion to settle the issue and reconcile conflicting of different kinds of writ they are.

The most crucial question has come up before this bench, can quowarranto and certiorari be prayed and co-exist in a single writ petition. In the backdrop of the factual matrix noted above, we are called upon to examine the relevant legal and constitutional provisions, in order to substantiate this issue, as raised before this bench, we have explored constitutional jurisprudence developed by numerous landmark cases of this subcontinent in which points were raised and resolved on this pertinent issue. We will also explore the scholar arguments in this regard.

We will commence with a very relevant judgment of the Hon’ble Appellate Division in Civil Petition for Leave to Appeal No. 2713 of 2018 (Golam Md. Khan Pathan v. Md. Mosharraf Hossain and others) where the Hon’ble Appellate Division relied upon the judgment of Indian Supreme Court in The State of Haryana Vs. The Haryana Co-Operative Transport Ltd and others, case reported in AIR 1977 SC 237, where the Indian Supreme Court observed that;

“… the Indian Supreme Court allowed to challenge the title of a holder of offices in a collateral proceeding if in that proceeding the holder of the office is impleaded as a party inasmuch as the proceeding in such a case becomes a combined proceeding of quo warranto and mandamus or certiorari.”

Agreeing to the ratio of Indian Supreme Court in the above case the Hon’ble Appellate Division has settled the issue in Civil Petition for Leave to Appeal No. 2713 of 2018 by holding that;

“The learned Advocate for the leave petitioner put a question that in a proceeding under article 102(2)(b)(ii) of the Constitution, i.e. in a writ of quo warranto, direction cannot be sought for in the form of mandamus because in that case, the proceeding becomes a mixture of writ of quo warranto and mandamus and the Court in such circumstances should not grant such relief. Such submission is not acceptable as there is no difficulty under article 102 of the Constitution to combine reliefs and as such writ of quo warranto may be issued with writ of certiorari or mandamus.”

Thus, the prolonged argument as to whether certiorari and quo warranto can co-exist peacefully in a same prayer of a writ petition have been finally settled by the Hon’ble Appellate Division. In this regard, we also want to refer the judgment of Indian Supreme Court in the case of Gokaraju v. A.P., reported in AIR 1981 SC 1473, where

the Indian Supreme Court held that;

“…the title of a holder of office can be challenged in a collateral proceeding if in that proceeding the holder of the office is impleaded as a party inasmuch as the proceeding in such case becomes a combined proceeding of quo warranto and mandamus or certiorari.”

We want to mention the opinion of H. W. R. Wade & C. F. Forsyth as mentioned in their book ‘Administrative Law’ (11thedn, OUP) 509, where they opined that “The quashing order (Certiorari) and the prohibiting order (Prohibition) are complementary remedies, based upon common principles, so that they can be classed together. The quashing order looks to the past, a prohibiting order to the future. Like private law remedies, they may be sought separately or together.” From the said quotation we can narrate that, two distinct remedies of writ can be classed together and prayed together in a single writ petition and they co-exist peacefully.

In light of the argument above, we are of the view that, though writ of quo warranto and certiorari do not run along way similar lines and both of them differ substantially in their essence but as there is no difficulty under article 102 to pray and grant combined reliefs, writ of quo warranto may be issued with a writ of certiorari or mandamus. Therefore, we conclude the instant writ is maintainable.

Now we move on to the next issue, whether the instant writ petition comply with the criteria to fall within the category of writ of quo warranto and certiorari.

In the instant writ petition the legality of holding the post of ‘Deputy Registrar’ of BNMC by respondent No. 13 has been challenged in first part of the prayer. Therefore, we will commence our discussion by examining the mandatory criteria of writ of quo warranto and whether those criteria are present in the instant writ petition.

In this subcontinent one of the landmark cases regarding writ of quo warranto is University of Mysore v. Govinda Rao, reported in AIR 1965 SC 491, where the Supreme Court of India highlighted the function of the Court in respect of quo warranto, in which any person holding independent substantive public office or franchise or liberty is called upon to show by what authority or right he holds the said office or franchise or liberty. It was mentioned that if the Court finds that the holder of the office has no authority or title to it, issue of the writ of quo warranto for ousting him/her from that office is the right remedy.

Similarly, in our jurisdiction Article 102 (2)(b)(ii) of the Constitution of the People’s Republic of Bangladesh which states that on the application of any person, the High Court Division may inquire whether a person holding or purporting to hold any public office, is holding it under a legal authority. So, as per Article 102 of the constitution, writ of quo warranto is invoked to test a person’s legal right to hold a public office, not to evaluate the person’s performance in that office. However, there are certain requirements which are mandatory to establish a writ of quo warranto, of which the most important criteria are that the office should be a ‘public office’.

One of the most well accepted definitions of ‘public office’ was provided in book “The law of Extraordinary Legal Remedies: habeas corpus, quo warranto, certiorari, mandamus, and prohibition” written by Forest G. Ferri and Forrest G. Ferris, Jr., in the following terms;

“The public office is the right, authority and duty created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law. It implies a delegation of a portion of the sovereign power. It is a trust conferred by the public authority for a public purpose, embracing the ideas of tenure, duration, emoluments and duties.”

Mr. Mahmudul Islam, learned Senior Advocate, in his book “Constitutional Law of Bangladesh” (3rd  Edn,  2012, Paragraph 5.113), by adopting the abovementioned definition of Ferri and ratio of some well accepted case laws of different jurisdictions, defined public office as;

“In order that this writ may issue, the office must be a public office of a substantive character (R. v. Speyer, reported in  [1916] 1 KB 595) created by the Constitution, statute or statutory power (R. V. Saint Martin’s Guardians, [1851] 7 QB 149). “A public office is a right, authority and duty, created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law” (Ferris- Extra- ordinary Legal Remedies, Para 145) and thus it is an office in which the public have interest….But the writ will lie in respect of an office held at pleasure, provided that the office is one of a public and substantive character (Halsbury’s Laws of England, 4the ed. vol. 1, Para 172).”

In the abovementioned definition the term ‘substantive character’ has been explained in the judgment of Darley v. R., [1846] 12 Cl and Fin 520 = 8 ER 1513, where it was held that “By the expression ‘substantive character’ is meant that the holder of the office must be an independent official.”

However, Mr. Fida M. Kamal, learned Senior Advocate for the respondent No. 13, submitted the definition of ‘public office’ based upon the definition provided in  Abdur Rahman (Md) Vs. Group Captain (Retd) Shamim Hossain &ors., reported in (49 DLR (1997)

628), in the following terms:

“In our view the word “public office” in the aforesaid Article 102(2)(b)(ii) means persons holding constitutional and elected offices and not the persons holding any office in the statutory authorities entrusted with the conduct and management of the business of the Government.”

We can see that although, the definition of ‘public office’ provided in Abdur Rahman (Md) Vs. Group Captain (Retd) Shamim Hossain &ors., expressly relied upon the definition of  Ferri  but without providing any legal reasoning, has adopted a narrower approach. We expressed our distinction from the definition of ‘public office’ as provided in Abdur Rahman (Md) Vs. Group Captain (Retd) Shamim Hossain &ors. case. However, this Court has agreed with the observations that Article 152 of the Constitution of the People’s Republic of Bangladesh has not defined “public office” rather it has defined “public officer”. Article 152 states that “public officer means a person holding or acting in any office of emolument in the service of the Republic.”

In search for more pragmatic and comprehensive definition of the ‘public office’ we have examined the reference of American Jurisprudence (63c Am. Jur. 2d Public Officers and Employees § 1 (2009)), referred by the learned Advocate for the petitioners, where

the term ‘public office’ has been defined in the following terms;

“public office’ is a position in a governmental system created, or at least recognized, by applicable law, to which certain permanent duties are assigned, either by the law itself or by regulations adopted under the law by an agency created under such law and acting in pursuance of it (State ex rel. Gray v. King, 395 So. 2d 6 (Ala. 1981). A public office has also been defined to be the right, authority, and duty created and conferred by law (Ashe v. Clayton County Community Service Bd.; 262 Ga. App. 738, 586 S.E.ed 683 (2003)), the tenure of which is not transient, occasional, or incidental, by which for a given period an individual is invested with power to perform a public function for the benefit of the public (State ex rel. Gray v. King, 395 So. 2d 6 (Ala. 1981)).

A position is held to be a public office when it has been created by law and casts upon the incumbent duties which are continuing in their nature and not occasional, and which call for the exercise of some portion of the sovereignty of the state (Clark v. O’Malley,  169 Md. App. 4078, 901 A.2d 279 (2006), judgment aff’d, 404 Md. 13, 944 A.2d 1122 (2008). Thus, an office is a public charge, where the duties are continuing and prescribed by law, and not by contract, and the office holder is invested with some of the functions pertinent to sovereignty, or having some of the powers and duties which inhere with the legislative, judicial, or executive departments of the government (Stuckey v. State,  560 N.E.2d 88 (Ind. Ct. App. 1990)).

Now, we have to analyze whether the characteristic of the post

of respondent No. 13 is compatible with the definition of public office analyzed above. Respondent No. 13 was appointed in the post of ‘Deputy Registrar’ subsequently she has been entrusted with the additional charge of “Registrar” of BNMC. Therefore, respondent No.

13 is holding and exercising the power of the highest post of BNMC

and thus, have the sovereignty to take and execute any decision regarding the functions of BNMC empowered by evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016. The post of respondent No. 13 is a public office, because respondent No. 13 has vested with certain permanent duties assigned by the law itself and acting in pursuance of

it and the right, authority, and duty has been vested upon “Registrar”

of BNMC has been created and conferred by law. Furthermore, the duties those has been casted upon the post of “Registrar” is for the benefit of the public, which are continuing in their nature and not occasional, and which call for the exercise of some portion of the sovereignty of the state, or having some of the powers and duties which inhere with the executive departments of government related organization that is responsible for carrying out public duties and functions. According to supreme court of India, the holder of a public office is considered a public servant subject to certain legal responsibilities and obligations. Hence, the office of respondent No.

13  is  ‘substantive  character’  or  ‘sovereign’  office,  with  a  public  charge, where the duties are continuing and prescribed by law, and not  by  contract.  Taking  into  consideration  all  of  the  said  criteria  and  function  of  respondent  No.  13,  and  the  definition  analyzed,  has  certainly  guided  us  to  come  to  the  conclusion  that  the  post  of  respondent No. 13 is a public office.

Now we have to examine the issue of compliance and non- compliance as to whether respondent No. 13 is holding the post of Deputy Registrar and subsequently, acting as “Registrar” of BNMC as usurper, which is essential to comply with the criteria for writ of quo warranto. In order to analyze the illegality, we have to scrutinize the alleged  inaction  of  the  respondent  Nos.  1  to  9  and  14  in  taking necessary  steps  against  the  respondent  No.  13,  and  the  Selection Committee that appointed respondent No. 13, consisting of respondent Nos. 10 to 12, for adopting an alleged illegal and corrupt means by abusing their positions as public servants in the alleged illegal and unlawful recruitment process of respondent No. 13 in the post of Deputy Registrar of BNMC, which falls within the category of writ of certiorari. Thus, we will discuss both of the issue simultaneously.

It is admitted fact that at the time of appointment of respondent No. 13 in the post of Deputy Registrar of BNMC on ‘temporary basis’ there was no appointment rules of Bangladesh Nursing Council and the Council published advertisement notice in the official website.

However, we want to emphasize that, in absence of any appointment

Rules of their own, Government Service Rules is mandatory to be

followed by the Bangladesh Nursing Council in case of appointment

of any officer and employee. It is to be mentioned here that in order to

publish any job circular for the post of any public office or make appointment against the said post, it is mandatory that particular post

must be existed in the Act, Rules or Ordinance that has been published vide Gazette Notification.

Now, we have to examine whether the post of ‘Deputy Registrar’ of BNMC, ever existed in the Bangladesh Nursing Council Ordinance, 1983 and even in the new Act evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016, which has been promulgated after the respondent

No. 13 was appointed in the post of Deputy Registrar but before, her appointment was made permanent.

Admittedly, there was no such post of Deputy Registrar in the Ordinance of 1983 and even in the new Act evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016and according to section 4(Ta) of evsjv‡`k bvwm©s I wgWIqvBdvwi  KvDwÝj  AvBb,  2016, the post  of  Deputy  Registrar which

existed in the composition of BNMC is not the post of Deputy

Registrar of BNMC rather it was the post of Deputy Registrar nominated by the Bangladesh Medical and Dental Council. evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 Hl aviv 4(Z) states that: evsjv‡`k

†gwW‡Kj I †W›Uvj KvDwÝj KZ©…K g‡bvbxZ D³ KvDw݇ji Ab¨~b †WcywU-‡iwR÷ªvi c`gh©v`vi GKRb cªwZwbwa|. Therefore, there is no such post of Deputy

Registrar to be filled in by the BNMC.

However, the respondent referring to the Memo dated 24.04.1994  (Annexure-3 to the Affidavit-in-Opposition) tried to

convince this Court that the Ministry of Health and Family Welfare

approved the amendment of the schedule of the Service Regulations

of Statutory Body, including the post of Deputy Registrar. In Clause-2

of the said Memo it has been stated that “Dc‡iv³ wewae× cªwZôvb mg~‡ni PvKyix Av`k© cªweavbgvjv msjMœ PvKyix wb‡qv‡Mi miKvi KZ©…K Aby‡gvw`Z Zdkxj 2(P) †M‡RU weÁwß I h¡Ù¹h¡u−el Rb¨ †cªiY Kiv nj| Zckxj 2(P) d‡UvKwc AÎ mv‡_ mshy³”. The respondent authority did not show or produce any copy of

the gazette notification other than this scrap of paper. In a series of affidavit-in-opposition none of the respondents have stated that

gazette notification was published as per the said amendment. So,

until and unless gazette notification is published following the said amendment, the said memo can under no circumstances be accepted

as document that there was a post of Deputy Registrar. The General

Clauses Act, 1897 in section 23(5) provides that the publication in the

official gazette of a rule or by-law purporting to have been made in

exercise of a power to make rules or by-laws after previous publication shall be conclusive proof that the rule or by-law has been

duly made. Moreover, admittedly, by the judgment and order passed

in Civil Appeal No. 48 of 2011 by the Hon’ble Appellate Division, all Ordinance, Regulations, Orders made by the Martial Law Administrator during the period between 24.03.1982 to 10.11.1986

have met their natural death. So, that was the reason for which, the Government has promulgated the new Act named evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 wherein also the Government did not provide any such post of Deputy Registrar in the BNMC. Section 7(4)

of evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 provides as follows;

“7|  †iwR÷ªvi I Kg©Pvix|(1) KvDw݇ji GKRb †iwR÷ªvi _vwK‡e, whwb miKvi KZ…©K wbhy³ nB‡eb Ges hvnvi PvKwii k` Z m ©vwiKvi KZ…©K w¯’ixK…Z nB‡e|

2.     KvDwÝj Dnvi Kvh©vejx myôzfv‡e m¤úv`‡bi D‡Ï‡k¨ cÖ‡qvRbxq msL¨K Kg©Pvix wb‡qvM Kwi‡Z cvwi‡e Ges Zvnv‡`i wb‡qvM I PvKzixi kZ©vejx cÖweavb Øviv wba©vwiZ nB‡e|
3.     †iwR÷ªvi, KvDwÝj I wbe©vnx KwgwU KZ…©K wb‡`©wk Z`vwqZ¡ cvjb I Kvh©-m¤úv`b Kwi‡eb|
4.     †iwR÷ªv‡ii c` k~b¨ nB‡j wKsev Abycw¯’wZ, Amy¯’Z ev Ab¨ †Kvb Kvi‡Y †iwR÷ªvi Zuvnvi `vwqZ¡ cvj‡b Amg_© nB‡j D³ k~b¨ c‡` be

wbhy³ †iwR÷ªvi Kvh©fvi MÖnY bv Kivf kÑ¿¹, A_ev †iwR÷ªvi cybivq ¯^xq `vwqZ¡ cvj‡b mg_© bv nIqv fkÑ¿¹ miKvi KZ…©K g‡bvbxZ †Kv‡bv e¨w³

†iwR÷ªv‡ii `vwqZ¡ cvjb Kwi‡eb| (emphasis added) ”                  Furthermore, the concerned post of the instant writ petition is

‘Deputy Registrar’. In any office, whether public or private, the prime

reason for appointing someone in the ‘Deputy Registrar’ post is to run

the office with the full capacity of regular post in absence of the

appointed person of that post. However, in the instant writ petition, we

have observed that section 7(4) of evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 does not leave any opportunity for ‘Deputy Registrar’ to

run the office in absence of ‘Registrar’ because the section states that

in absence of ‘Registrar’ or in case of vacancy before any new Registrar is appointed, government will nominate someone to run the operation of the office of Registrar. This clearly rules out the post of ‘Deputy-Registrar’, because, if the ‘Deputy Register’ were existed

then the ‘Deputy Registrar’ by default would run the operation of the office of ‘Registrar’ and in that case section 7(4) of evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 would not be necessary. In this premise,

we are of the view that the intention of the parliament/legislature was

not to provide a post of ‘Deputy Registrar’, hence, singled out the same from the evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 at the time of enactment. Therefore, the regularization of respondent No. 13 in 2017 in the post of Deputy Registrar, even though the evsjv‡`k bvwm©s I

wgWIqvBdvwi KvDwÝj AvBb, 2016 was already came in effect before the

said regularization is illegal and  mala fide, as there is no post of

Deputy Registrar in evsjv‡`k bvwm©s I wgWIqvBdvwi KvDwÝj AvBb, 2016 and there is no option for promotion from the said post. Furthermore, the experience of respondent No. 13 during the period she has been

holding the post of Deputy Registrar as a usurper is also illegal and

void.

In these circumstances, the respondent authority also relied on

the minutes of the 3rd Meeting held in 2007  (Annexure-10 to the

Affidavit-in-Opposition)  and  tried  to  convince  this  Court  that  the executive committee of the Bangladesh Nursing Council has approved

the Recruitment Rules along with the amendments. This Annexure is

in one page wherein it has been stated as “¢pÜ¡¿¹t- AZtci G wel‡q KwgwU E¢õ¢Ma  ms‡kvabmn  wb‡qvM  wewa  Aby‡gv`b  K‡” i.  On  repeated  asking,  the  learned Advocates for the respondents could not and did not produce  

or show any gazette notification of the same or any such recruitment  rules of their own. On this score also we are of the view that this is  nothing but a paper which has no force in the eye of law. So,  it  is  already established vide evidence and by the admission of respondents

in their affidavit-in-oppositions, that the Bangladesh Nursing Council

had no service rules of its own while the appointment of respondent

No. 13 in the post of Deputy Director was made.

Now question may arise, in view of the circumstances, what the Council will do in case of appointment of any employee for carrying

out its business in absence of any rules. In this respect it would be helpful  for  us  if  we  can  rely  upon  the  decision  in  the  case  of Bangladesh Rural Development Board (BRDB) Dhaka v. Asma Sharif, Shariatpur and others, reported in 72 DLR (AD) 189, wherein it has

been held in paragraph 32 as follows:

“…… All the statutory bodies/corporations/autonomous organizations must strictly follow their respective service Rules while making any recruitment in any permanent post.”

Admittedly, there is no appointment rules at the relevant time

when the respondent No. 13 was appointed as Deputy Registrar.

Since, the Hon’ble Appellate Division being the Apex Court of the

country, specifically held that respective service Rules must be

followed we are of the view that in the absence of any appointment

Rules the Bangladesh Nursing Council has no other option but to

follow the Government Service Rules.

Now, we come to the point as to whether non-publication of the recruitment notice in the newspaper is illegal and without lawful

authority as per Government Service Rules. In this respect, the

provision of the Government Service Rules is very clear. Referring to

the Circular and Guidelines of the then Ministry of Establishment vide

Memo No. mg/Avi-1/88-86(200) ZvwiL 4 gvP© 1990, it has been provided

in the Government Service Rules relating to direct appointment stated

to the effect that “ïb¨ c‡` wb‡qv‡Mi weÁwß cwÎKvq cªKvk ev wewfbœ MYgva¨g KZ©…K weÁvcb cªPviYvi gva¨‡g eûj cªPvi Kwi‡Z nB‡e| Bnvi cvkvcvwk wb‡qvM weÁwß Rbkw³ Kg©ms¯’vb I cªwk¶Y e¨~‡ivi Aaxb¯’ †Rjv Kg©msv ¯b ’ I Rbkw³ Awd‡mI †cªiY Kwi‡Z nB‡e|”

The question of proper advertisement or inviting applications

from eligible candidates in open competition has been dealt with in accordance with law in case of Bangladesh Rural Development Board

(BRDB) Dhaka v. Asma Sharif, Shariatpur and others, reported in 72

DLR (AD) 189. The Appellate Division in the said case held at paragraph 13 as follows:

“The object of the Article 29 is to ensure equality of opportunity for all citizens in matters relating to appointment to public offices. Any appointment made in violation of mandatory provisions of the spirit of Article 29 of the Constitution and statute would be illegal and such illegality cannot be cured by taking recourse to regulation. The appointment to any post under the Government or autonomous organizations must be made after a proper advertisement has been made inviting applications from eligible candidates and holding selection by the Public Service Commission or body of experts or specially constituted committee whose members are impartial. The constitutional principle of providing equality of opportunity to all is a fundamental right to the citizens and it mandatorily requires that vacancy must be notified in advance meaning thereby that information of the recruitment must be disseminated in a reasonable manner in the public domain ensuring maximum participation of all eligible candidates, thereby the right of equal opportunity is effectuated. Aforesaid views have been expressed by the Supreme Court of India in the case of State of Orissa Vs. Mamata Mohanty, reported in (2011) 3 SCC 436. Equality of opportunity in matters of employment being the constitutional mandate is always to be observed. The advertisement must specify the number of posts available for selection and recruitment. The qualification and other eligibility criteria for the posts should be explicitly mentioned and the schedule of recruitment process should be published with certainty and clarity. The advertisement should specify the Rules and procedure under which the selection should specify the Rules and procedure under which the selection is likely to be undertaken. This is necessary to prevent arbitrariness and to avoid change of criteria of selection after the selection process has commenced, thereby, unjustly benefitting someone at the cost of others. In the case of RN Nanjun-dappa Vs. T. Thimmiah, reported in (1972) 1 SCC 409 the Supreme Court of India observed that if the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution, illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority conferred by the statute. To accede to such a proposition would be to introduce a new head of appointment in defiance of rules or it may have the effect of setting at naught the rules.”

Furthermore, it is the norm and regular practice of ‘Bangladesh Nursing and Midwifery Council’ to publish any job circular in well circulated national newspaper, which has always been followed before the appointment of respondent No. 13 (e.g. 13.02.2013, 21.04.2013 (Annexure-N, N-1 to the Supplementary Affidavit)) and after the appointment of respondent No. 13 (e.g. 07.09.20216, 31.10.2019 (Annexure-N-2, N-3 to the Supplementary Affidavit). However, in case of appointment of respondent No. 13 in the post of ‘Deputy Registrar’ the job circular dated 07.09.20216 was only published in the website of BNMC and only 3 (three) candidates participated in the examination, which clearly suggests that the job circular of such an important post was not published to the public at large. This is clear violation of Article 27 of the Constitution on the ground of discrimination because all the potential and eligible candidates were deprived of the opportunity of making an application for the said post.

In view of the decisions, quoted above, and the provision of Government Service Rules we are of the view that the non-publication of the Recruitment Notice in the newspaper for appointment in the post of Deputy Registrar is illegal and without lawful authority.  

We have noticed that in case of the job circular dated 07.09.20216, in addition to the violation of non-publication of advertisement in the national newspaper, there are other violation as

well. It is well settled that for the appointment in public office by direct recruitment process, one of the elementary and obligatory requirements is that the antecedents of the candidates selected is required to be verified through appropriate agencies (in case of instant

writ petition ‘police’) and found to be such as do not render him/her

unfit for appointment. This procedure is followed for appointment in

the public office from top to entry level employee. But, before recruiting respondent No. 13 in a significant national level post, Government Service Recruitment Rules for ‘Pre-Identity Assessment/Verification’ was violated by concerned authority, as the ÒmiKvwi PvKwi‡Z wb‡qv‡Mi wk¶vMZ †hvM¨Zv wba©viY (we‡kl weavb), wewagvjv, 2003Ó

states that,

       “L| Ab¨vb¨ c‡` mivmwi wb‡qvM c×wZ

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In the instant writ petition Inquiry Committee, formed regarding the appointment of respondent No. 13, submitted the Inquiry Report dated 03.02.2022 by stating that in selecting and

appointing the respondent No. 13, in the post of Deputy Registrar of BNMC, this obligatory requirement, police verification, has been contravened. If the police clearance would have sought or the obligatory verification procedure would have been complied with during the appointment of respondent No. 13, her previous criminal records would have come into light. The enquiry report dated 03.02.2022 clearly shows that, among the 4 (four) criminal cases filed against respondent No. 13, one criminal case being Paikgasa P.S. Case No. 29 dated 25.09.2012, which was filed, under sections 7 and 30 of bvix I wkï wbh©vZb `gb AvBb, 2000 (as amended on 2003), was pending at the time of recruiting her in the post of Deputy Registrar of BNMC. It appears from the record that respondent No. 13 has been discharged from the said case by order dated 20.11.2016. But fact remains that the recruitment notice was published in the website on 07.09.2016 and respondent No. 13 was appointed on 10.10.2016 on temporary basis. So, it is clear that by taking recourse to the suppression of fact that the respondent No. 13 filed the application for appointment which is not in accordance with law.