IINN TTHHEE SSUUPPRREEMMEE CCOOUURRTT OOFF BBAANNGGLLAADDEESSHH

AAppppeellllaattee DDiivviissiioonn

PRESENT

Mr. Justice Hasan Foez Siddique, C. J.

Mr. Justice M. Enayetur Rahim

Mr. Justice Jahangir Hossain

CIVIL APPEAL NOS. 145-151 OF 2016

(From the judgment and order dated 13th of February 2014 passed by the High Court Division in Writ Petition Nos. 1606-1612) .

Government of Bangladesh, represented by the Secretary, Bangladesh Parliament, Sher-e-Bangla Nagar, Dhaka and others

 =Versus=

Md. Masud Rana

Md. Abu Bakar Siddique  Md. Hamidul Islam

 Md. Mokbular Rahman

 Md. Zahed Ali

 Md. Asraful Islam Begum Samena Khatun

..............Appellan

(In all the ca

 ..............Respondent.

(In C.A.No.145 of 2016)

..............Respondent

(In C.A.No.146 of 2016)

..............Respondent.

(In C.A.No.147 of 2016)

..............Respondent

(In C.A.No.148 of 2016)

..............Respondent

(In C.A.No.149of 2016)

..............Respondent

(In C.A.No.150 of 2016)

..............Respondent

(In C.A.No.151 of 2016)

For the Appellants                             :  Mr. A. M. Amin Uddin, Attorney General, with (In all the appeals)  Mr. Mohammad Saiful Alam, Assistant Attorney

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

For the Respondent                            :  Mr. Probir Neogi, Senior Advocate with

(In C.A.No.145 of 2016) Ms. Tania Amir, Senior Advocate, instructed by Mr. Mvi. Md. Wahidullah, Advocate-on-Record

For the Respondents                           :  Mr. Zulhas Uddin Ahmed, Advocate, instructed (In C.A.No.146-151 of 2016) by Mr. Mvi. Md. Wahidullah, Advocate-on-      Record

Date of hearing : The 8th and 16th day of August, 2023

Date of judgment : The 31st day of August, 2023

JUDGMENT

M.  Enayetur  Rahim,  J:  These  civil  appeals,  by  leave,  are directed  against  the  judgment  and  order  dated  13.02.2014 passed by the High Court Division in Writ Petition Nos.1606- 1612 of 2010 making the Rules absolute. All the appeals have been  heard  together  and  they  are  being  disposed  of  by  this common judgment.

 The facts, relevant for disposal of these appeals, in short, are that the petitioner in writ petition No. 1606 of 2010, presently respondent was appointed as “Receptionist” and  petitioners in writ Petition Nos. 1607-1611 of 2010, presently respondents were appointed as “MLSS” and  the petitioner in Writ petition No. 1612 of 2010, presently respondent was appointed as “Proof Reader” of Bangladesh Parliament Secretariat following the Recruitment Rules of Bangladesh Sangshad Sachibaloy, 1994.

In the writ petitions, it was contended that in response to the advertisement published in the Daily Newspapers inviting application for several posts for the office of Bangladesh Parliament Secretariat, the writ petitioners applied for their respective vacant posts. Written examination and viva-voce was held and upon duly concluding all the appointment procedure, the writ petitioners received their respective appointment letters as probationary employee for a period of 02 (two) years. After successful completion of two years probationary period they were confirmed effective from the date of their joining in the said service considering their satisfactory performance under Rule 6(3) (Ka) of the Sangshad Sachibaloya, Employees and Officers Appointment Rules, 1994.

All of a sudden the writ respondent No. 2 issued a letter dated 18.02.2010 relieving all the writ petitioners from their respective services.

Being aggrieved by the said order dated 18.02.2010 all the writ petitioners moved before the High Court Division by filing different writ petitions. 

A Division Bench of the High Court Division upon hearing all the Rules together by a common judgment and order dated 13.02.2014 made all the Rules absolute.

Feeling aggrieved by the said judgment and order passed by the High Court Division, the writ-respondents as petitioners filed Civil Petitions for Leave to Appeal Nos. 1519, 1522-1526 and 1530 of 2014 before this Division and leave was granted on 07.02.2016. Hence, these appeals.

Mr. A.M. Amin Uddin, learned Attorney General, appearing on behalf of the appellants submits that the High Court Division erred in law in failing to appreciate that the impugned order was issued pursuant to a decision adopted in a proceeding of the Parliament on the basis of recommendations made by a Parliamentary Committee formed by the Speaker under Article 76(2) (C) (d) of the Constitution as well as under Rules laid down in the chapter XXVI of the Rules of Procedure of Parliament to enquire into the allegations relating to corruption, misuse of power, wastage of public fund by the then Speaker, Barrister Mohammad Jamiruddin Sirker, and the Proceedings of the Parliament is immuned from challenge under Article 78 of the Constitution and as such, the impugned judgment and order passed by the High Court Division is liable to be set aside.

 Learned Attorney General further submits that as per section 14 of the Sangsad Sachibaloy Act, 1994, the Speaker is answerable to the National Parliament for all functions and actions relating to National Parliament Secretariat and any decision of the National parliament taken in its proceedings having been immuned from challenge and in such view of the matter, the impugned order issued pursuant to the said proceedings cannot be called in question in any court of law.

He  also  submits  that  the  High  Court  Division  failed  to appreciate  that  the  recruitment  process  was  void  ab  initio since Parliamentary Committee upon its enquiry found that the

recruitment  process  of  the  respondents-writ  petitioners  was tainted  with  serious  irregularities,  corruption,  misuse  of

power  and  violation  of  the  injunction  imposed by  the  then Ministry of Establishment committed by the then Speaker of 8th Parliament upon which the Parliament in its proceeding adopted

a decision to cancel the said appointments and in such view of the matter, the writ petitioners accrued no vested right and

they  do  not  come  under  the  ambit  of  the  Service  Rules  of Sangsad  Sachibalay,  Namely,  Sangsad  Schibalay  Karmokarta-O- Karmochary  Neog Bidhimala,  1994 and  Jatio  sangsad  Sachibalay Kormokarta-O-Karmochary  (Sringkhola-O-Appeal)  Bidhimala,  2005 and hence, no show cause notice or departmental proceedings is required to relieve the writ-petitioners from their service.

 Learned Attorney General also submits that the High Court Division erred in law in failing to appreciate that it is a settled  principle  of  law  that  if  the  appointment  is  made without following the rules and procedure, no vested right is accrued  and  since  the  respondents-writ-petitioners  got  their respective  appointment  as  a  result  of  irregularities  and corrupt practice, they have not therefore acquired any vested right in their service on such illegal appointments. Learned Attorney  General  having  referred  to  the  case  of  Nuruzzaman (Md) and others Vs. Bangladesh others 64 DLR (HCD)406, 20 BLC (AD) 246, Rina Rani Sutradhar and others Vs. Bangladesh 20 BLC (2015) (AD) 246 (para II), Pankaj Gupta Vs. The State of Jammu  and  Kahsmir  reported  in  8  SCC  (2004)  353  and  the Secretary,  State  of  Karnataka  Vs.  Umadevi  (2006)4  SCC,  01) submits that the illegality and irregularity are so intermixed

with the whole process of selection that it becomes impossible to sort-out right from wrong and vice versa, the rules of natural justice cannot be put in a Straight Jacket [Md. Fazle Rabbi Mia Vs. Professor Aftab Uddin Ahmed and others, 2 LNJJ (2013) 46] and as such, the impugned judgment is liable to be be set aside.

Per contra, Mr. Probir Neogi, learned Senior Advocate and Mr. Zulhas Uddin Ahmed, learned Advocate appearing on behalf of the respondents made submissions in support of the impugned judgement and order of the High Court Division. In addition, it has been submitted that Article 78 of the Constitution only protects "proceedings of the parliament" from judicial review. The impugned orders do not come within the purview of parliamentary proceedings. It has been further submitted that the High Court Division categorically found the writ petitioners had "no hand" in the recruitment process. The Parliament Secretariat being independent and not being under any Ministry or Department of any Ministry, the appointments could not be held to be violative of any prohibitive order of the Ministry of Establishment and the appointments having been made in accordance with the provisions of the Bangladesh Parliament Secretariat Recruitment Rules 1994, the contention as to the petitioners' appointments being void ab-initio as propagated by the appellants does not have a sound leg to stand upon. For the same reason, the decision reported in 2 LNJ (2013) 46 as relied upon by the appellant in reason No. 4 are not at all attracted to the present case and, as such, the judgment and order passed by the High Court Division does not call for any interference by this Division.

We have considered the rival submissions of the learned Advocates for the respective parties, perused the impugned judgment and order of the High Court Division and the materials as placed before us.

In the instant cases it is undeniable fact that the 9th Parliament in its 1st session on 19th March, 2009 adopted a resolution to make inquiry with regard to the illegalities and irregularities of the appointments, misuse of power, corruption, wastage of public fund by the then Speaker Barrister Mohammad Jamiruddin Sirker and the Speaker on that day on the basis of the decision adopted in the House, formed a 12 members inquiry committee amongst the Members of Parliament headed by Mr. Md. Fazle Rabbi Mia, M.P.(Gaibandha-

5.      The said parliamentary inquiry committee after holding inquiry placed its report before the Parliament making some recommendations. The relevant portion of the recommendations are as follows:
   6. ""KwgwUi wm×všÍ/mycvwikt

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30.06.2007 ch©šÍ ewa©Z K‡i miKvix †KvlvMvi †_‡K Zv‡`i †eZb fvZv cÖ`vb K‡i ¸iæZi Avw_©K

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13.   †KvUv bv †g‡b hv‡`i‡K wb‡qvM †`qv n‡q‡Q Zv‡`i e¨vcv‡i AvBbvbyM wm×všÍ MÖn‡Yi

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15.     msm` bv _vKv m‡Ë¡I msm`xq KwgwUi mfvcwZM‡Yi Rb¨ ¯v ’qx c‡` 42 Rb

Gg.Gj.Gm.Gm wb‡qvM Ges msm`xq KwgwU bv _vKv m‡Ë¡I mfvcwZM‡Yi Rb¨ wb‡qvwRZ e¨w³MZ

mnKvix‡`i PvKzwi 30.06.2007 ch©š Íewa©Z K‡i Ges Zv‡`i †eZb fvZv cÖ`vb K‡i me‡©gvU

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¯^”QZv, Revew`wnZv I mykvmb cÖwZôvi †ÿ‡Î D‡jøL‡hvM¨ AMÖMwZ mvwaZ n‡e|Ó

On  13.10.2009  a  good  number  of  Members  of  Parliament including both ruling party and the oppositions discussed on the  said  report.  At  the  time  of  discussion  on  the  report, various  suggestions  and  recommendations  were  given  by  the Members of Parliament and ultimately, the report was accepted by the House.

The relevant proceedings of the Parliament is as follows: ""msm`xq Z`šÍ KwgwUÕi wi‡cvU ©m¤ú‡K© msm` KZ…©K me©m¤§wZµ‡g M„nxZ wm×všÍ|

................................................................................................................|

gvbbxq m`m¨e„›`, msm`xq Z`šÍ KwgwUi wi‡cvU ©m¤ú‡K© GZÿY gvbbxq msm`-m`m¨MY †h

mKj e³ e¨ Ges cÖ¯vÍe †ck K‡i‡Qb Zrm¤ú‡K© Avgvi e³ e¨ nj -msm‡` Avcbv‡`i `vexi †cÖwÿ‡Z

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GLv‡b Avwg ej‡Z PvB, Avgv‡`i †`‡k msm`xq MYZ‡š¿i PP©v `xN© mg‡qi bq MYZvwš¿K e¨e¯’v mdjfv‡e Kvh©Ki Kivi Rb¨ Avgv‡`i †`‡k †h mKj MYZvwš¿K cÖwZôvb i‡q‡Q, †m¸‡jv‡K `yb©xwZ, Awbqg BZ¨vw` †_‡K ³ gy ivL‡Z n‡e| RvZxq msm` G †`‡ki me©en „r MYZvwš¿K cÖwZôvb|

RbMY G cwÖZôv‡bi gva¨‡g miKvi‡K Zv‡`i wbKU Revew`wn Ki‡Z eva¨ K‡i| RvZxq msm`-‡K

`vwqZ¡ cvj ‡b mnvqZv Kivi Rb¨ cwÖZwôZ n‡q‡Q RvZxq msm` mwPevj q| G mwPevj q‡K mKj

`yb©xwZi D‡aŸ© †i‡L bwRi cÖwZôvi Rb¨ Avgv‡`i mKj‡K m` ev © m‡Pó _vK‡Z n‡e|

Z`šÍ wi‡cv‡Ui© wel‡q Avcbviv †h Av‡j vPbv K‡i‡Qb †m wel‡q wK KiYxq Zv msm‡` wm×všÍ

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Z`šÍ wi‡cv‡U©i mgwš^Z mycvwikm‡ gn ~i g‡a¨ mv‡eK gvbbxq ¯úxKvi e¨vwióvi gyn¤§` Rwgi DwÏb

miKv‡ii 9g RvZxq msm‡`i msm` m`m¨ c` LvwiR Kivi mycvwik Kiv n‡q‡Q| GB mycvwikwU

Avgv‡`i †`‡ki †cÖÿvc‡U Avgvi Kv‡Q AwZ K‡Vvi e‡j g‡b n‡”Q| KwgwU Giƒc mycvwi‡ki mg‡ _b © fviZ, KvbvWv I hy³iv‡R¨i msm`xq ixwZ-bxwZi D‡jøL K‡i‡Q| Avgv‡`i msweav‡b ev RvZxq msm‡`i Kvh©cÖYvj x-wewa A_ev we`¨gvb wewa-weav‡b GKRb gvbbxq ¯úxKv‡ii Z`šÍ wi‡cv‡U ©Dwj øwLZ

`yb©xwZ, Awbq‡gi Rb¨ msm`-m`m¨ c` LvwiR Kivi my¯úó †Kv‡bv weavb †bB| Avgv‡`i †`‡ki msm`xq MYZ‡š¿i BwZnv‡m H me Kvi‡Y msm`-m`m¨ c` evwZ‡ji †Kv‡bv bwRiI †bB| G †`‡ki DbœZ MYZvwš¿K e¨e¯’vi P~ovš ÍDrKl© mvab n‡j †m mgq Ab¨vb¨ †`‡ki b¨vq Giƒc wel‡q we‡ePbv

K‡i ‡`Lv †h‡Z cv‡i| G chv©‡q msm` m`m¨ c` evwZ‡j i wm×všÍ MÖnY Kiv h_vh_ n‡e bv e‡j

Avwg g‡b Kwi|

gvbbxq m`m¨e„›`, Avkv Kwi AvcbvivI Avgvi mv‡_ GKgZ †cvlY Ki‡eb| Kv‡RB gvbbxq msm`-m`m¨ Rbve iv‡k` Lvb †gbb Kvhc©Öbvj x wewai 292 wewa Abyhvqx †h c¯ÖÍve G‡b‡Qb Zb¥‡a¨

mv‡eK gvbbxq ¯^xKvi, e¨vwióvi gyn¤§` RwgiDwÏb miKv‡ii 9g RvZxq msm‡`i m`m¨ c` LvwiR Kiv msµvšÍ cÖ¯Íve e¨ZxZ Ab¨vb¨ cÖ¯Íve¸‡jv Avwg GLb †fv‡U w`w”Q|

msm‡`i mvg‡b cÖkœ n‡”Q,

gvbbxq msm`-m`m¨ Rbve iv‡k` Lvb †gbb Kvhc©ÖYvj x wewai 292 wewa Abyhvqx †h c¯ÖÍve

G‡b‡Qb Zb¥‡a¨ mv‡eK gvbbxq ¯úxKvi e¨vwióvi gyn¤§` RwgiDwÏb miKv‡ii 9g RvZxq msm‡`i m`m¨ c` LvwiR Kiv msµvš ÍcÖ¯Íve e¨ZxZ Ab¨vb¨ cÖ¯Íve¸‡j v MÖnY Kiv nDK|  

huviv G cÖ¯Ív‡ei c‡ÿ Av‡Qb, Zuviv Ònu¨vÓ ejyb|

[aŸwb‡fvU MÖn‡Yi ci-]

huviv G c¯ÖÍv‡ei wec‡ÿ Av‡Qb, Zuviv ÒbvÓ ej yb|

[aŸwb‡fvU MÖn‡Yi ci-]

Avgvi g‡b nq, Ònu¨vÓ Rq³ hy n‡q‡Q, Ònu¨vÓ Rq³ hy n‡q‡Q, Ònu¨vÓ Rq³ hy n‡q‡Q|

AZGe, mv‡eK gvbbxq ¯úxKvi e¨vwióvi gyn¤§` RwgiDwÏb miKv‡ii 9g RvZxq msm‡`i msm` m`m¨ c` LvwiR Kiv msµvš ÍcÖ¯Íve e¨ZxZ Ab¨vb¨ cÖ¯vÍe¸‡j v msm‡` me©m¤§wZµ‡g Mn„xZ

n‡jv|Ó

It  is  pertinent  to  mention  here  that  Mr.  Rashed  Khan

Manon,  M.P.  proposed  to  adopt  the  following  proposal  under rule 292 of the  "evsj v‡`k RvZxq msm` Kvh©cYÖvj x-wewa' t

""(K) mv‡eK gvbbxq ¯úxKvi e¨vwi÷vi gyn¤§` Rwgi DwÏb miKvi, mv‡eK †WcywU ¯úxKvi Rbve AvLZvi nvwg` wmwÏKx Ges mv‡eK Pxd ûBc †Lv›`Kvi †`‡jvqvi †nv‡mb Awbqg I `~bx©wZ K‡i †h A_© AvZœmvr Ges AcPq K‡i miKv‡ii †h Avw_©K ÿwZ K‡i‡Qb Zv AvBbx e¨e¯’v MÖn‡Yi gva¨‡g Zv‡`i wbKU †_‡K Av`vq Kiv nDK:

(L) mv‡eK gvbbxq ¯úxKvi e¨vwi÷vi gyn¤§` Rwgi DwÏb miKvi miKvwi wewa weavb Agvb¨ K‡i wbqg ewnf~©Z

cš’vq ‡h mKj Kg©KZv©/Kg©Pvix wb‡qvM w`‡q‡Qb ‡m mKj wb‡qvM evwZj Kiv nDK:''

 Pursuant to the said resolution of the parliament, the

Secretariat  of  Bangladesh  Jatio  Shangshad  cancelled  the appointment  of  the  respective  writ  petitioners  vide  its official letter on 18.02.2010.

Learned Attorney General candidly submits that since the impugned order was issued pursuant to a decision adopted in a proceeding of the Parliament on the basis of the recommendation made by the Parliamentary Committee, formed by the Speaker under Article 76 (2)(c)(d) of the Constitution as well as under the Rules laid down in Chapter XXIV of the Rules of Parliament as such the proceedings as well as the decision taken on the basis of such proceedings is immuned from judicial review as per provision of Article 78 of the Constitution.

The Article 78 (1) of the Constitution speaks as follows:

""msm‡`i Kvh©avivi ˆeaZv m¤ú‡K© ‡Kvb Av`vj ‡Z cÖk œDÌvcb Kiv hvB‡e bv| Ó

 [The validity of the proceedings in parliament shall not be questioned in any Court].

Mr. Probir Neogi, Learned Senior Advocate, appearing for the writ petitioners-respondents submits that in the instant cases since the service of the writ petitioners-respondents have been made permanent following the relevant Service Rules, and since they have been serving for a quite long period, they cannot be dismissed from the service without following the relevant Service Rule, i.e. msm` mwPevjq Kg©KZ©v I Kg©Pvix wb‡qvM wewagvjv, 1994 and the doctrine of parliamentary privilege will not be applicable in these particular cases.

In view of Article 78(1) of our Constitution the proceedings in Parliament shall not be questioned in any Court.

However, a pertinent question is required to be addressed that in what circumstances and situations Court can exercise its power under judicial review on a Parliamentary proceeding, and how far its proceeding is immuned from judicial review.

In the case of Raza Ram Paul vs. Honb’le Speaker, Loksobha [MANU/SC/0241/2007=Supreme Court cases, 2007, Vol. iii (2007)3 SCC page-184], the Supreme Court of India has dealt with the issue of parliamentary privilege and having considered of its earlier various judgments/decisions held that no power is absolute but subject to checks and balances and judicial review. In the said case, the Supreme Court of India has formulated the principles relating to the parameters of judicial review in relation to the exercise of parliamentary provisions:

 “Summary of the principles relating to parameters of judicial review in relation to exercise of parliamentary provisions:

431. We may summarise the principles that can be culled out from the above discussion. They are:

1.     Parliament is a coordinate organ and its views do

deserve deference even while its acts are amenable to judicial scrutiny;

2.        The constitutional system of government abhors

absolutism and it being the cardinal principle of our Constitution that no one, howsoever lofty, can claim to be the sole judge of the power given under the Constitution, mere coordinate constitutional status, or even the status of an exalted constitutional functionaries, does not disentitle this Court from exercising its jurisdiction of judicial review of actions which partake the character of judicial or quasi-judicial decision;

3.    The expediency and necessity of exercise of power or

privilege by the legislature are for the determination of the legislative authority and not for determination by the courts;

4. The judicial review of the manner of exercise of power of

contempt or privilege does not mean the said jurisdiction is being usurped by the judicature;

5.      Having regard to the importance of the functions

discharged by the legislature under the Constitution and the majesty and grandeur of its task, there would always be an initial presumption that the powers, privileges, etc. have been regularly and reasonably exercised, not violating the law or the constitutional provisions, this presumption being a rebuttable one;

6. The fact that Parliament is an august body of co-ordinate

constitutional position does not mean that there can be no judicially manageable standards to review exercise of its power;

7.   While the area of powers, privileges and immunities of

the legislature being exceptional and extraordinary its acts, particularly relating to exercise thereof, ought not to be tested on the traditional parameters of judicial review in the same manner as an ordinary administrative action would be tested, and the Court would confine itself to the acknowledged parameters of judicial review and within the judicially discoverable and manageable standards, there is no foundation to the plea that a legislative body cannot be attributed jurisdictional error;

8.    The judicature is not prevented from scrutinising the

validity of the action of the legislature trespassing on the fundamental rights conferred on the citizens;

9.    The broad contention that the exercise of privileges by

legislatures cannot be decided against the touchstone of fundamental rights or the constitutional provisions is not correct;

10.   If a citizen, whether a non-Member or a Member of the

legislature, complains that his fundamental rights under Article 20 or 21 had been contravened, it is the duty of this Court to examine the merits of the said contention, especially when the impugned action entails civil consequences;

11.     There is no basis to the claim of bar of exclusive

cognizance or absolute immunity to the parliamentary proceedings in Article 105(3) of the Constitution;

12. The manner of enforcement of privilege by the legislature

can result in judicial scrutiny, though subject to the restrictions contained in the other constitutional provisions, for example Article 122 or 212;

13.     Article 122(1) and Article 212(1) displace the broad

doctrine of exclusive cognizance of the legislature in England of exclusive cognizance of internal proceedings of the House rendering irrelevant the case-law that emanated from courts in that jurisdiction; inasmuch as the same has no application to the system of governance provided by the Constitution of India;

14.   Article 122(1) and Article 212(1) prohibit the validity of

any proceedings in legislature from being called in question in a court merely on the ground of irregularity of procedure;

15.     The truth or correctness of the material will not be

questioned by the court nor will it go into the adequacy of the material or substitute its opinion for that of the legislature;

16. Ordinarily, the legislature, as a body, cannot be accused

of having acted for an extraneous purpose or being actuated by caprice or mala fide intention, and the court will not lightly presume abuse or misuse, giving allowance for the fact that the legislature is the best judge of such matters, but if in a given case, the allegations to such effect are made, the court may examine the validity of the said contention, the onus on the person alleging being extremely heavy;

17.      The rules which the legislature has to make for

regulating its procedure and the conduct of its business have to be subject to the provisions of the Constitution;

18.   Mere availability of the Rules of Procedure and Conduct

of Business, as made by the legislature in exercise of enabling powers under the Constitution, is never a guarantee that they have been duly followed;

19.    The proceedings which  may be tainted on account of

substantive or gross illegality or unconstitutionality are not protected from judicial scrutiny;

20. Even if some of the material on which the action is taken

is found to be irrelevant, the court would still not interfere so long as there is some relevant material sustaining the action;

21.    An ouster clause attaching finality to a determination

does ordinarily oust the power of the court to review the decision but not on grounds of lack of jurisdiction or it being a nullity for some reason such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity.

432. It can now be examined if the manner of exercise of the power of expulsion in the cases at hand suffers from any such illegality or unconstitutionality as to call for interference by this Court.” (Underlines supplied).

In view of the above propositions, Courts power of judicial review on the proceedings of Parliament is not absolutely ousted. In certain facts and circumstance, in particular on the grounds of lack of jurisdiction or it being a nullity for some reasons such as gross illegality, irrationality, violation of constitutional mandate, mala fides, non-compliance with rules of natural justice and perversity, Court has the jurisdiction to exercise its power under judicial review.

 Let us now consider the submissions of learned Attorney General in the light of the above principles coupled with the facts and circumstances of the present case.

From the facts as it reveals in the instant cases that the Parliament in its sessions adopted a resolution to make inquiry with regard to the alleged illegal and irregular appointments made by the then Speaker Mohammad Jamiruddin Sirker and accordingly, an inquiry committee was formed. Thereafter, the said inquiry committee after holding an inquiry placed its report before the Parliament and an open discussion was held on the said inquiry report by the members of Parliament and, thereafter, the Speaker put the resolution proposed by Mr. Rashed Khan Manon, M.P. before the House for adoption and the House had adopted the said resolution cancelling all the illegal appointments, and pursuant to the said resolution, the impugned order has been issued and communicated by the Parliament Secretariat to the respective writ petitioners. The learned Advocates for the writ petitioners-respondents have failed to show us that in taking such recourse by the Parliament, the Parliament or the Speaker has violated any rule of Rules of Procedure of Parliament as well as the Constitution. The House and the inquiry committee

discussed various aspects on the issue in question. Since the Constitution and Rules of Procedure have not been violated in the proceeding of Parliament, it is our considered view that there is no scope of judicial review to adjudicate the propriety of the said proceedings and resolution adopted by the Parliament and, as such, we have no hesitation to accept the submission of the learned Attorney General that in these particular cases the impugned decision and the above proceedings of the Parliament is immuned to be questioned before any Court.      

The learned Advocates for the writ petitioners- respondents have tried to convince us that before taking the impugned action cancelling the appointments of the respective respondents, they were not given any opportunity of being heard and thereby principle of natural justice has been violated, since their service has been confirmed by the authority as per relevant Service Rules.

It is now well settled that if the appointments have been made without following the Rules of Procedure, the concerned employees have not acquired any vested right in the office on the basis of such irregular and illegal appointment. In the case of Nuruzzaman Md. and others vs. Bangladesh and others, reported in 64 DLR (HC) 406 it has been held that:

“Since the appointments have been made without following the rules and procedures, and in the inquiry report it has been opined that the petitioners managed to get their appointments by way of irregularities and corrupt practice, we are of the view that the petitioners have not acquired any vested right in the office on the basis of their appointments. There is no illegality and irregularity in the order of cancellation as made by the respondents”.

The High Court Division in making the above observations            relied on the case of Pankaj Gupta vs. the State of Jammu and

Kashmir, reported in 8 SCC (2004)353, wherein it has been held that:

 “No person illegally appointed or appointed without following the procedure prescribed under the law is entitled to claim that he should be continue in the service.”

The above judgment of the High Court Division has been affirmed by this Division in Civil Petition for Leave to appeal No. 245-152 of 2003, reported in 20 BLC (AD) 246 wherein this Division has held that:

“Considering the report of the inquiry committee, the Government cancelled the order of appointments and that it could not be said that letter impugned before the High Court Division was arbitrary. The High Court Division further found that the appointments had been made without following the rules and procedures and that in the inquiry report it had been opined that the petitioners managed to get their appointments by way of irregularities and corrupt practice. The High Court Division also found that the petitioners had not acquired any vested right in the office on the basis of their appointments. Therefore, the High Court Division concluded that there was no illegality or irregularity in the order of cancellation made by the respondents.

The finding of the High Court Division having been based on proper appreciation of law and fact do not call for interference.”

In the case of Md. Fazle Rabbi Mia vs. Aftab Uddin Ahmed and others, reported in 2 LNJ (2013) 46, a Division Bench of the High Court Division has held that-there is no violation of the rules of natural justice wherein illegalities, irregularities, arbitrariness and abuse of power in the process of creating of posts, selection and appointments are so intermixed that it becomes impossible to sort out the right from wrong and vice versa. 

In the Case of Krishan Yadav and Ors. vs. State of Haryana and Ors.[Manu/SC/0456/1994] the Supreme Court of India having found that the selection was done without interview,

fake and ghost interviews, tempering with the final records, fabricating documents and forgery has observed as under:  

 “It is highly regrettable that the holders of public offices both big and

small have forgotten that the offices entrusted to them are sacred trusts. Such offices are meant for use and not abuse. From a Minister to a menial everyone has been dishonest to gain undue advantages. The whole examination and the interview have turned out to be farcical exhibiting base character of those who have been responsible for this sordid episode. It shocks our conscience to come across such a systematic fraud. It is somewhat surprising the High Court should have taken the path of least resistance stating in view of the destruction of records it was helpless. It should have helped itself. Law is not that powerless.

In the above circumstances, what are we to do? The only proper courses open to us is to set aside the entire selection. The plea was made that innocent candidates should not be penalised for the misdeeds of others. We are unable to accept this argument. When the entire selection is stinking, conceived in fraud and delivered in deceit, individual innocence has no place as “Fraud unravels everything”. To put it in other words, the entire selection is arbitrary. It is that which is faulted and not the individual candidates. Accordingly we hereby set aside the selection of Taxation Inspectors.

The effect of setting aside the selection would mean the appointments held by these 96 candidates (including the respondents) will have no right to go to the office. Normally speaking, we should require them to disgorge the benefit of these ill-gotten gains. That means they will have to repay the entire salary and perks which they have received from the said office. But, here we show a streak of sympathy. For more than 4 years they were enjoying the benefit of “office”. The proper lesson would be learnt by them if their appointments are set aside teaching them that dishonesty could never pay.

All these efforts by us are aimed at cleansing the public administration. No doubt, it may be stupendous task but we do hope this small step will make great strides in the days to come. Accordingly, the appeals stand allowed.” (Underlines supplied).

In the case of Union of India Vs. J.N. Sinha (MANU/SC/0500/1970) the Supreme Court of India held that rules of natural justice are not attracted in such a case where the appropriate authority forms the requisite opinion bona fide and its opinion cannot be challenged before the Courts. In the

case of Baikantha Nath Das and others vs. Chief District Medical Officer, Baripada and others [MANU/SC/0193/1992] it has been held that as action had been taken on subjective satisfaction of Government, there is no room for importing facet of natural justice in such a case.

In view of the above propositions, we are unable to accept the submission of Mr. Neogi that in cancelling the order of appointments of the writ petitioners, which were the result of corrupt, illegal and male practice, the principle of natural justice has been violated.

In the case of Jagit Singh vs. State of Hariyana, reported in (2006) 11 SCC 1, the Supreme Court of India has held that the principles of natural justice are not immutable but are flexible; they cannot be cast in a

rigid module and put in a straitjacket and the compliance therewith has to be considered in

the facts and circumstances of each case.         

Section 5(1) and section 14 of the RvZxq msm` mwPevjq AvBb, 1994 are as follows: 

""msm` mwPevj‡qi KZ„©Z¡-  5| (1) msm` mwPevj‡qi cªkvmwbK `vwqZ¡ ¯úxKv‡ii Dci b¨¯Í _vwK‡e| and

msm‡`i wbKU ¯úxKv‡ii `vwqZ¡- 14| msm` mwPevj ‡qi hveZxq KgK©v‡Ûi Rb¨ ¯úxKvi msm‡`i

wbKU `vqx _vwK‡eb| Ó

This Division in the Case of Maves Jasmin and others vs. Ruhul Amin, reported in 26 BLC (AD)239 has observed that:

 “The ordinary rule of construction of a statute must be construed in

accordance with the language used depending upon the context. The Court

should adopt purposive interpretation of the statute to articulate the felt necessities of the time. Article 79 of the constitution has been provided with the

object that the Secretariat attached to the parliament should have staff, which

should be under the effective control with the head of the parliament. The idea

is to crystallise the position regarding supremacy of the Speaker and to give

constitutional authority. The Speaker is the framer, operator and interpreter of the Rules and consequently he can amend the Rules from time to time following the related laws.”     

If we consider the provisions of sections 5(1) and 14 of the RvZxq msm` mwPevjq AvBb, 1994 coupled with above proposition of law, then it would be abundantly clear that the Speaker of the Parliament has been entrusted with all the administrative power of the Parliament Secretariat but at the same time he or she is answerable to the House for his or her conduct and activities relating to "msm` mwPevj‡qi hveZxq Kg©KvÛ' and, as such, the House in taking the action on the illegal conduct/activities of the Ex-Speaker did not violet any Rules of Procedure of the Parliament or any provision of the Constitution.

Having considered and discussed above, we find merit in all the appeals. Accordingly, all the appeals are allowed. The impugned judgment and order passed by the High Court Division is set aside.

However, there is no order as to costs.

C. J.

J. J.

B.S./B.R./*Words-5,583*