IN THE SUPREME COURT OF BANGLADESH

APPELLATE DIVISION

     PRESENT:

Mr. Justice Surendra Kumar Sinha, Chief Justice

Mrs. Justice Nazmun Ara Sultana Mr. Justice Syed Mahmud Hossain Mr. Justice Hasan Foez Siddique

CIVIL PETITION FOR LEAVE TO APPEAL NO.2532 of 2014.

(From the Judgment and order dated 09.06.2014 passed by the High Court Division in Writ Petition No.7428 of 2007.)

Government of Bangladesh and another:    Petitioners.

=Versus=

Md. Abul Kalam Azad and others:  Respondents.

For the Petitioners:  Mr. Amatul Karim, Deputy Attorney

General, instructed by Mr. Haridas Paul, Advocate-on-Record.

For the Respondents:  Mr.  Abdul  Matin  Khasru,  Senior

Advocate,  instructed  by  Mr. Chowdhury Md. Zahangir, Advocate-on- Record.

Date of hearing.  : 14th December, 2015

J U D G M E N T

Surendra Kumar Sinha, CJ: Delay in filing of this petition is condoned. The Ministry of Law and Justice seeks leave from this court from a judgment of the High Court Division in Writ Petition No.7428 of 2007. The writ petition was filed by one Md. Abul Kalam Azad and three others challenging the memo dated 24th July, 2007 issued by the Ministry of Law, Justice and

Parliamentary Affairs canceling their appointments dated 14th January, 2007.

Facts relevant for the disposal of this petition are that the then Ministry of Establishment Division now Public Administration by its letter under memo dated 30th August, 2005, gave clearance to the Ministry of Law, Justice and Parliamentary Affairs to fill up vacant posts of process servers under Kishoregonj judgeship. Pursuant thereto, the concerned Ministry issued a letter under memo dated 7th September, 2005, in favour of District and Sessions Judge, Kishoregonj to fill up the vacant posts of process servers. In due course the District and Sessions Judge issued a circular in an issue of a national daily news paper inviting applications from the aspiring candidates to fill up four vacant posts. The writ petitioners thereupon applied to the posts, appeared in the examinations and ultimately they were selected and in due course after receipt of appointment letters, they joined in their respective

posts on 15th January, 2007. They were deputed to different courts by the District Judge as process servers of Kuliar Char, Bagitpur, Kishoregong and they have been drawing their salary as well. After seven months of their joining, they received the impugned memo by which the District Judge directed them to refund the salaries by referring a letter of the Ministry of Law, annexure “H’, which read as under:

 “Dch©y³ welq Ges m~‡Îvwj−wLZ c‡Îi Av‡jv‡K wb‡`©wkZ n‡q Rv v‡bv hv‡”Q †h, ms¯nvcb gš¿Yvj‡qi 11/05/1991 wLªt Zvwi‡Li (Gmwc)-44/88-283 bs m¥vi‡Ki gg©vbyhvqx wK‡kviMÄ †RjvRR Av`vj‡Zi 5 (cvuP) wU ïb¨ c‡` †jvK wb‡qv‡Mi wel‡q NUbv DËi/f~Zv‡c‡¶ QvocÎ cª`v‡bi †Kvb my‡hvM †bB| G ai‡bi Kvh©µg Awbqg I wewaewn©f~Z|

GgZve¯nvq, wK‡kviMÄ †RjvRR Av`vj‡Zi wbægvb mnKvix-Kvg- gy`ªv¶wi‡Ki 1 (GKwU) Ges RvixKvi‡Ki 4 (Pvi) wU †gvU 5wU k~b¨ c‡` weMZ 14/01/07 Bs Zvwi‡L RvixK…Z wb‡qvMcÎ evwZjµ‡g D³ c` mg~‡ni wel‡q cybivq QvocÎ MªnY c~e©K wb‡qv‡Mi Kvh©µg Mªn‡bi Aby‡ivamn Dwj−wLZ 5(cvuP) wU c‡` wb‡qvMK…Z e¨w³MY hw` miKvix †KvlvMvi n‡Z A_© AvniY K‡i _v‡Kb, †m †¶‡Î

Zv‡`i wbKU n‡Z D³ A_© Av`vq K‡i miKvix †KvlvMv‡i Pvjvbg~‡j Rgv w`‡q Pvjv‡bi 1(GK) Kwc AÎ gš¿bvj‡q †cªi‡Yi R‡b¨I wb‡`©kµ‡g Aby‡iva Kiv nj|”

The High Court Division held that the writ petitioners were appointed after following the formalities with prior clearance of the Ministries of Public Administration; and of Law and Justice; that the clearance letter of the Ministry of Public Administration  was a product of an administrative order which did not say not to initiate appointment process by the respective department without prior approval of clearance of the said Ministry; that though the appointment process ought to have completed by 30th August, 2006, the process was initiated on 25th November, 2006 and that the Ministry of Public Administration’s memo dated 11th May, 1991 was an administrative order which could not negate the right of the writ petitioners.

Learned Deputy Attorney General has assailed the judgment of the High Court Division mainly on the ground that the appointments after expiry of the period was without jurisdiction and therefore, the District and Sessions Judge committed illegality in filling up the vacancies without taking fresh clearance from the Ministry of Law and Justice again.

Admittedly, the writ petitioners were appointed against sanctioned posts and under such circumstances why such clearance certificate for appointment of any staff in the judgeship would be necessary is not clear to us. There is no existing law prohibiting to make appointment against sanctioned post. On our query, the learned Deputy Attorney General fails to give any explanation in this regard. The direction given by the Ministry of Law and Justice is that since the appointments were made after the expiry of the period fixed by it, the appointments were unauthorised. Before the High Court Division on behalf of the Ministry of Law and Justice the learned Deputy Attorney General had produced a Circular of the Ministry of then Establishment Division dated 22nd January, 1998 in support of its claim, which is reproduced below:

“Dc‡iv³ wel‡q wb‡`©kµ‡g Rvbv‡bv hv‡”Q †h, miKv‡ii m ¯yc÷ wb‡`©k _vKv m‡Ë¦I †Kvb †Kvb gš¿Yvjq/wefvM I Zv‡`i Awab¯’ `ßi mg~n Zv‡`i wbqš¿bvax‡b we`¨gvb ïb¨ c` cyi‡bi c~‡e© ms¯’vcb gš¿bvj‡qi c~e© Aby‡gv`b/QvocÎ Mªnb QvovB Kg©Pvix wb‡qvM K‡i NUbv DËi Aby‡gv`b/QvocÎ cª`vb Kivi Rb¨ Aby‡iva Rvbvq| G ai‡bi Aby‡iva miKvix Av‡`k, mvK©yjvi I wb‡`©‡ki cªwZ kvwgj Ges G ai‡bi Rb¨ mswk−ó Kg©KZv©/Kg©Pvixiv miKvix Kg©Pvix (Avcxj) wewa Abyhvqx ¶gZvi kvw¯— cvevi †hvM¨| 2| GgZve¯nvq mswk¬÷ gš¿bvjq/wefvM I Zv‡`i Aaxb¯’ `ßi mg~n‡K G ai‡bi Awbqg wewa ewn©f~Z Kvh©µg †_‡K weiZ _vKvi Rb¨ civgk© †`qv hv‡”Q Ges GLb †_‡K G ai‡bi NUbv DËi Aby‡gv`b/f~Zv‡c¶ QvocÎ Mªn‡bi †Kvb cª¯ v— e AÎ gš¿bvj‡q we‡ePbv bv Kwievi wm×vš— †bqv n‡q‡Q| †mg‡Z G ai‡bi Awbqg I wewa ewn©f~Z Kv‡Ri †Kvb cybive„wË bv N‡U †mw`‡K mswk−ó mK‡ji mZK© `„w ivwL‡Z Aby‡iva Rvbv‡bv hv‡”Q|”

It was pointed out in the circular that despite

that there was strict direction to obtain prior approval of the Ministry of Public Administration for filling up vacant posts by the Ministries/Divisions and their subordinate departments, they did not follow the said direction, which is an offence. We fail to understand how this memo is applicable to the subordinate judiciary, inasmuch as, the said circular relates to appointment of staff against sanctioned posts in different Ministries/Divisions and their subordinate offices. The lower judiciary is neither a subordinate department of the Ministry of Law and Justice nor the Ministry of Public Administration. It is under the Supreme Court of Bangladesh. The Article 109 of the Constitution clearly provides that “the High Court Division shall have superintendence and control over all courts and tribunals subordinate to it”. (emphasis supplied). Besides, article 111 provides that ‘The law declared by the Appellate Division shall be binding on the High Court Division and the law declared by the High Court Division of the Supreme Court shall be binding on all courts subordinate to it.’ Here also in clear terms the question of subordination of the District Courts has been mentioned. These two provisions are clear and there is no gainsaying that all District Courts are subordinate to the High Court Division. It is not subordinate to the Ministry of Law and Justice Department.

In Mazdar Hossain, 52 DLR(AD)82, this Court held that the judicial service has a permanent entity as ‘a separate service altogether’ and it must always remain so in order that Chapter II and VI is not rendered nugatory. ‘Functionally and structurally judicial service stands on a different level from the civil administrative executive services of the Republic. While the function of the civil administrative executive services is to assist the political executive in formulation of policy and in execution of the policy decisions of the Government of the day, the function of the judicial service is neither of them. It is an independent arm of the Republic which sits on judgment over parliamentary, executive and quasi – judicial actions, decisions and orders. To equal and to put on the same place the judicial service with civil administrative executive services is to treat two unequals as equals,’ this court observed. The independence of judiciary, as affirmed and declared by Articles 94(4) and 116A is one of the basic pillars of the constitution and cannot be demolished, whittled ground or curtail or demolished of any manner whatsoever, except under the existing provisions of the constitution. It is to be borne in mind that the subordinate staffs of the lower judiciary cannot be dissected with the judicial service. The judicial officers cannot administer justice without the supporting staffs.

In the impugned order, annexure “H” to the writ petition, it was pointed out that the appointment was made without jurisdiction assuming that the District Courts are under its control and supervision, as if it is a department under it. This is based on a wrong premise and on misconception of law. Under no stretch of imagination, the Ministry of Law and Justice can legally give such direction to the District and Sessions Judge.

In course of hearing, learned Deputy Attorney General has drawn our attention to two circulars of the then Ministry of Establishment Division, one

under memo dated 15th March, 1992 and the other dated 17th January, 2000. The circular dated 15th March, 1992 is as under:

"Dch©y³ welq I m~‡Îi eiv‡Z Avw`ó nBqv Rvbv‡bv hvB‡Z‡Q †h, gš¿Yvjq/wefvM I Bnvi Aaxb¯’ `ßi mg~‡n we`¨gvb mKj cªKi (mivmwi I c‡`vbœwZi gva¨‡g c~iY †hvM¨) k~b¨c` cyi‡Yi c~‡e© ms¯’vcb gš¿bvjq nB‡Z Qvo cÎ Mªn‡Yi †h wb‡`©kvejx Rvwi Kiv nBqvwQj †mB ¸wj cix¶v Kwiqv wm×vš— M„nxZ nBqv‡Q †h, GLb nB‡Z c‡`vbœwZi gva¨‡g c~iY †hvM¨ c`mg~n c~i‡Yi †¶‡Î Qvo c‡Îi cª‡qvRb nB‡e

bv|

2| AZGe, gš¿vYjq I wefvM mg~n‡K GLb nB‡Z QvocÎ Mªn‡Yi cª¯ v— e †cªi‡Yi mgq †KejgvÎ mivmwi wb‡qv‡Mi gva¨‡g c~iY‡hvM¨ k~~b¨ c`mg~n c~i‡Yi †¶‡Î ms¯’vcb gš¿Yvj‡qi QvocÎ Mªn‡Yi Rb¨ Aby‡iva Kiv hvB‡Z‡Q|

3| miKvwi wb‡©`kvbymv‡i ms¯’vcb gš¿Yvj‡qi c~ev©by‡gv`b/QvocÎ MªnY e¨wZ‡i‡K mivmwi wb‡qv‡Mi gva¨‡g c~iY‡hvM¨ k~b¨c` c~iY Kiv nB‡j Zvnv wewa mg¥Z nB‡e bv weavq GBi“c A‰ea fv‡e wb‡qvM cªvß Kg©Pvix‡`i †eZb cw ‡kva bv Kwievi Rb¨ mswk¬ó cªavb/†Rjv wnmvei¶Y Kg©KZv©MY‡K Aby‡iva Rvbv‡bv hvB‡Z‡Q|

The circular dated 17th January, 2000 is as under:

‘cªkvmwbK cybwe©b¨v‡mi Kvi‡Y DØ„Ë Kg©Pvix AvZ¥xKiY Ges fxel¨Z m¤fve¨ c«kvmwbK cybwe©b¨vm Gi Rb¨ k~b¨c` msi¶‡Yi wbwgË mKj gš¿Yvjq, Awa`ßi, cwi`ßi Ges Z`vaxb¯’ `ßi mg~n I mKj ¯^vqËkvwmZ, Avav ¯^vqËkvwmZ ms¯’v mg~‡ni ivR¯^LvZfz³ c` mivmwi wb‡qv‡Mi gva¨‡g c~i‡Yi †¶‡Î ms¯’vcb gš¿Yvj‡qi Qvo cÎ Mªn‡Yi c×wZ cªPwjZ Av‡Q| Z‡e wb¤œewY©Z c`¸‡ijvi †¶‡Î ms¯’vcb gš¿Yvj‡qi Qvo c‡Îi cª‡qvRb nq bv t-

(K) K¨vWvi mvwf©mfz³ mKj c`|

(L)  cªwZi¶v Kg©wefv‡Mi †emvgwiK Kg©Pvix e¨ZxZ mKj c`|

(M) we wW Avi, Avbmvi Ges cywjk evwnbxi mKj c`, evwnbx ewnf~©ZmnvqK Ges KiwbK Kg©Pvixi c` e¨ZxZ|

(N) ¯^vqZ¡kvwmZ ms¯’vi AvIZvaxb b¨vkbvjvBRW G›Uvic vª BR mg~‡ni mKj c`,

†hgb t wgj KviLvbvmg~n cwiPvjbvi mv‡_ mswk−ó c` mg~n|

(O)    miKvi cwiPvwjZ Avw_©K cªwZôvbmg~n h_v t e¨vsK, exg , Bb‡f÷‡g›U K‡cv©‡ikb Ges nvDm wewìs dvBb¨vÝ K‡cv©‡ikb BZ¨vw`|

2| miKv‡ii AvKvi mxwgZKiY, e¨q ms‡KvPb Ges fwel¨r cªkvmwbK cybwe©b¨v‡mi j‡¶ 1994 mvj B‡Z Dch©y³ †¶‡Î gÄywiK…Z c‡`i 20% k~b¨c` msi¶‡bi bxwZgvjv Abymib Kiv n‡”Q|

3| 2006 mv‡ji g‡a¨ †`k‡K wbi¶iZv gy³KiY Ges cªv_wgK I gva¨wgK wk¶v Kvh©µg‡K †Rvi`vi Kivi j‡¶¨ ms¯’vcb gš¿Yvj‡qi Qvo cÎ Mªn‡Yi eva¨evaKZv n‡Z Ae¨vnwZ cª`v‡bi miKvwi wm×v‡š i— †c«w¶‡Z GLb n‡Z wbæewY©Z c` c~i‡Y ms¯’vcb gš¿Yvj‡qi QvocÎ Mªn‡Yi cª‡qvRb n‡e bv|

(K) miKvix cªv_wgK we`¨vj‡qi cªavb wk¶K c`|

(L)  miKvix gva¨wgK I cªv_wgK we`¨vj‡qi mnKvix wk¶K c`|

(M) _vbv wk¶v Awdmvi c`|

(N) mnKvix _vbv wk¶v Awdmvi c`|

4| k~b¨c` c~i‡Yi †¶‡Î BZt c~‡e© RvwiK…Z mKj Av‡`k wb‡`©k GB ms‡kvabx mv‡c‡¶ Kvh©Ki _vK‡e|"

In the first circular it was mentioned that to

reserve the vacant posts for absorbing the surplus

employees due to administrative rearrangement and future probable administrative rearrangements usually sanction from Ministry of Establishment is required to fill-up the posts under government revenue through direct appointment of every Ministry, Department, Section and all sections under those offices and all autonomous, semi-autonomous organizations. But no such sanction is necessary for the following posts:

a)     All posts under cadre service

b)     All post of defence except civil employees

c)     All post of nationalized Enterprise under Autonomous institutions

d)     All posts of BDR, Ansar And police Force except Assistant outside from the force and clerk.

e)     All Government running Financial Institutions, for example: Bank, Insurance, Investment Corporation and House Building Finance Corporation etc.

This letter also does not apply to the lower judiciary, inasmuch as, the lower judiciary is not under the control and superintendance of the Ministry of Law and Justice Department. In the latter circular, it was mentioned that there was provision for prior permission of the Ministry of Establishment for appointing employees against vacant posts. It, however, observed that the Ministries’ prior approval would not be necessary in case of filling up the vacancies in respect of the post of cadre service. All posts of Ministries of Defence other than civil employees of BDR, Ansar and Police Department other than clerical posts and some other organizations.

A close reading of the latter circular clearly shows that it was written with a view to minimizing the manpower of the government employees working in different Ministries and departments, cost reduction and also with a view to keeping 20% vacant posts reserved for future administration reorganizations. So apparently this circular is also not applicable, inasmuch as, apart from the fact as mentioned above, there is no scope for reorganization of the lower judiciary in future. The functions of the lower judiciary are altogether different from civil administrative service. Naturally, this circular has no manner of application for filling up the vacancies in the lower judiciary against sanctioned posts.

Apart from the above, for proper administrative and control of the lower judiciary, the Judges of the High Court Division and Chief Justice usually inspect the lower courts every year. In course of their inspections it is found that in all district courts the smooth functioning and transacting its business

are being hampered due to shortage of staff against sanctioned posts due to retirement and appointment process could not be initiated due to these circulars. With the increase of the population day by day, the pace of filing litigations is also increasing threefold. It is reported by the Judges that whenever they write letters for clearance for

appointment of staff against sanctioned posts, the reply of the Ministry comes at a belated stage- sometimes it takes one year or more. Naturally this hampers the administration of justice, inasmuch as, unless the supporting staffs help the Judges, it will be difficult for them to administer justice.

There are shortage of Judges in every courts and even under the present strength, the subordinate staffs cannot manage the sections due to shortage with the result that even after working extra times, they cannot coup with the situation. The net result is that the docket is increasing every day. The litigants’ sufferings are mounting in obtaining copies and taking steps in pending litigations. Cases cannot be made ready due non-service of summons. There is urgent need to increase at least twice the present number of manpower working in the lower judiciary. The Bench Assistants who are called ‘Paskers’ are so overworked that they unofficially engaged ‘Umeders’ to write order sheets by making payments from their own pocket. As soon as this fact has been published in the media, the Chief Justice issued circular directing the District and Sessions Judges not to allow any outsider to work with the Bench Assistants. Now that ‘Umeders’ are not working and as a result, the Bench Assistants are working in the courts of the District and Sessions Judges, the Chief Judicial Magistrates, Chief Metropolitan Magistrates, more than 12 hours a day. These supporting staff are not getting any over time and it is not humanly possible for them to manage more than hundred cases a day and to write orders in the order sheet.

 So the number of Bench Assistants particularly working in busy districts like Dhaka, Chittagong, Khulna, Sylhet, Bogra, Comilla, Mymensingh, Jessore, Barisal, Comilla, Noakhali, Rajshahi, Dinajpur should be increased to two so that the administration of justice can function smoothly. Accordingly, it is imperative to take immediate steps by the Ministries

of Public Administration, and Law and Justice to increase at least one the more Bench Assistant to the District and Sessions Judges, Chief Metropolitan Magistrates, Metropolitan Sessions Judges, Nari-O- Shishu Nirjatan Daman Tribunals, Chief Judicial Magistrates in all old District Courts. It is hoped that the said Ministries shall take immediate step in this regard.

The Ministry of Public Administration’s circulars under memo dated 15th March, 1992, 11th May, 1991 and 17th January, 2000 are not applicable to the District Courts. Henceforth, the District Courts will be at liberty to take immediate step to fill up the vacant sanctioned posts for smooth functioning of the courts without taking prior approval or clearance from Ministry of law and Justice as well as the Ministry of Public Administration. The said circulars are not applicable to the lower judiciary. The Ministry of Public Administration is directed to withdraw the aforesaid circulars immediately and intimate this

court. Let a copy of the judgment be communicated to the Ministries of Public Administration, and Law and Justice.

This petition is disposed of with the above directions and observations. 

   C.J. J.

J.

      J.

The 14th December, 2015 Md. Mahbub Hossain.

Approved for reporting.