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Serial No.	Name of the Parties, Citation and Key Words	Summary of the case	Key Ratio
1.	Bangladesh and ors Vs. Radiant Pharmaceuticals Ltd (Hasan Foez Siddique, CJ) 16 SCOB [2022] AD 1 Key words : Constitution of Bangladesh, article 128; Income Tax Ordinance 1984, sections 120, 121A, 163; Audit Report; Comptroller and Auditor General; Revenue	The respondent, a pharmaceuticals company, filed its Income Tax return upon which the concerned Local Office of the CAG conducted an audit after assessment by the DCT and found some irregularities in respect of assessment of the respondent’s income. Accordingly, the audit team submitted report to the Commissioner of Taxes claiming that the government suffered a revenue loss of Tk.1,39,750/- for such irregularities. On the basis of such report, the concerned Inspecting Additional Commissioner issued a notice under section 120 of the Income Tax Ordinance, 1984 upon the respondent. Being aggrieved, the respondent filed a writ petition before the High Court Division and obtained Rule Nisi. The High Court Division made the Rule absolute holding that though it is the power of the CAG or local office of the CAG to audit on the files in the tax department in order to check the receipts/refunds of public funds, it has got no authority to check the merit or demerit of subjective opinions of the assessing officers with regard to allowing or disallowing a particular claim of the concerned assessee. If the auditor is allowed to do so, the entire purpose for incorporating the provisions under Section 120 and/or 121A of the Ordinance will be frustrated. Appellate Division, on the contrary, analyzing article 128 of the Constitution of Bangladesh and section 120 and 163(3)(g) of the Income Tax Ordinance, 1984 set aside the judgment and order of the High Court Division holding that the audit report prepared by the Local Audit Office of the CAG is one of the factors that enables the Inspecting Joint Commissioner to determine whether any order of Deputy Commissioner of Taxes is correct or not and therefore the opinion of the High Court Division is erroneous.	Constitution of Bangladesh, article 128 and Income Tax Ordinance, 1984 section 120 and 163 (3) Whether audit report has any bearing upon the subjective opinion of assessing officer: The Audit Department has been invested with the authority to inspect the accounts of Revenue Department. The Comptroller and Auditor General is authorized to direct any of his officers to conduct audit of tax receipts or refunds under section 163 (3)(g) of the Income Tax Ordinance. The High Court Division has opined that the CAG has got no jurisdiction to check the merit or demerit of subjective opinions of the assessing officers with regard to allowing or disallowing a particular claim of the concerned assessee. This view of the High Court Division is erroneous inasmuch as if the audit report does not have any bearing in the subjective opinion of the assessing officer, the very purpose of auditing pursuant to article 128 of the constitution is to be frustrated. If no action can be taken against any irregularities detected through auditing of accounts, auditing itself becomes unnecessary. In the instant case, for example, concerned DCT has allowed financial expenses of an amount of Tk. 575,49,249/- as demanded by the assessee which was not supported by annual report etc. and the audit report has detected this irregularity. If this irregularity as detected by the audit report does not trigger any proceeding under section 120 of the Income Tax Ordinance, 1984, the power conferred to the CAG under section 163(3)(g) of the same Ordinance becomes fruitless.
2.	Govt. of Bangladesh and ors Vs. Md. Saiful Islam & ors (Hasan Foez Siddique, J) 16 SCOB [2022] AD 8 Key Words: Work-charged employee; daily wage employee; pensionary benefit; regularizing service	The respondents are work-charged employees under different government departments who filed different Writ Petitions in the High Court Division and obtained directions upon the writ respondents-petitioners to regularize/absorb their service in the revenue set up. The Government and others preferred different Civil Petitions for Leave to Appeal which were dismissed as being time barred. Thereafter, the government and others filed these review petitions. Disposing of all the review petitions the Appellate Division observed that the service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit. Citing different measures taken by the different State Governments of India for work-charged employees, the Appellate Division further observed that the Government should formulate a policy instrument for giving pensionary and other benefits to the work-charged employees who have served without break for a considerable period of time i.e for 20 years or more.	The service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit: Work-charged employees have not only been deprived of their due emoluments during the period they served on less salary but have also been deprived from the pensionary benefits as if services had not been rendered by them though the Government has been benefitted by the services rendered by them. The concept of work-charged employment has been misused by offering the employment on exploitative terms for the work which is regular and perennial in nature. The concept of equality as envisaged in the constitution is a positive concept which cannot be enforced in a negative manner. Therefore, the service rendered by work-charged employees for a considerable period, like 20 years or more, may be considered to be permanent employees and they may be qualified for grant of pensionary benefit, inasmuch as, pension is not a charity, rather, it is the deferred portion of compensation for past service.
3.	Md. Mehedi Hasan @ Rajib and anr Vs. The State (Hasan Foez Siddique, J) 16 SCOB [2022] AD 17 Key Words: Dying declaration; Section 162 (2) of the Code of Criminal Procedure;	Two appellants were convicted for commission of offence punishable under sections 302/34 of the Penal Code and they were sentenced to death by the trial Court. The High Court Division confirmed the conviction and sentence awarded by the trial Court. There was a dying declaration made by the victim and recorded by the I/O of the case. The Appellate Division found that both the dying declaration and its contents have been proved by 4 PWs and the testimonies of PW-1 and PW-2 to be corroborative to the dying declaration. The Appellate Division held that the learned Courts below upon proper consideration of the testimonies of the witnesses and dying declaration of the victim found the appellants guilty of the charge levelled against them. However, considering that the appellants are in death cell for about 14 years, it commuted the sentence of the appellants from death to one of imprisonment for life with fine.	Evidence Act 1872, section 32(1) read with section 162(2) of Code of Criminal Procedure, 1898 Whether a dying declaration recorded by an Investigating Officer is admissible in evidence: In view of the testimonies of the PW-16 S.I. Moazzem Hossain and P.Ws. 4, 5 and 18 we do not find any reason to disbelieve the dying declaration of the victim (exhibit-4). It is true that when a police-officer in course of investigation examines any person supposed to be acquainted with the facts and circumstances of the case, the substance of that examination falls under the category of statement recorded under section 161 of the Code of Criminal Procedure and that statement is not admissible in evidence. But in view of the section 162 (2) of the Code of Criminal Procedure a dying declaration recorded by an Investigating Officer does not lose its special evidentiary value and can be sole basis for awarding conviction. Unlike recording of a confessional statement law does not require that a dying declaration shall be recorded by certain prescribed persons for the very reason that a dying man may not have sufficient time in his hand for his declaration to be recorded by a prescribed person.
4.	Md. Abdul Awal Khan Vs. The State [Syed Mahmud Hossain, CJ (Minority view)] [Muhammad Imman Ali, J (Majority view)] 16 SCOB [2022] AD 22 Key Words: Section 342 of Code of Criminal Procedure, 1898; Section 24 and 27 of Evidence Act, 1872; Wife killing case; Extra judicial confession	In the instant case the wife of the Appellant Awal Khan found dead at his dwelling house and the door of the room was open. Inside the house 2 sons of the accused were sleeping and the neighbours knew nothing about the occurrence of murder. There was no eyewitness of the occurrence. Trial Court believing the statement of P.Ws. 1, 4, 5 and 6 that the appellant confessed his guilt before them and accordingly the chen dao which was allegedly used to murder the victim was recovered from his shop, convicted the accused and sentenced him to death. High Court Division confirmed the death sentence of the appellant. The Appellate Division, however, by majority decision came to the conclusion that the extrajudicial confession allegedly made by the appellant is inadmissible in evidence inasmuch as that was made in presence of police; that the recovery of the dao at the pointing out of the appellant is admissible evidence in view of section 27 of the Evidence Act but there was no legal evidence on record to show that the said dao was used to deal the blows upon the victim; that the appellant used to stay in his shop at night and nobody saw him staying with his wife at the night of occurrence and therefore he does not require to explain as to how his wife met her death and the incriminating evidence in the depositions of the prosecution witnesses being not placed before the appellant in accordance with law the examination of the appellant under section 342 of the Code of Criminal Procedure was not lawfully done by the trial Court and as such, the trial was vitiated. Honorable Chief Justice Mr. Justice Syed Mahmud Hossain, however, differed with the majority in above mentioned points except the point of admissibility of extra judicial confession in presence of police. Consequently the appellant was acquitted.	Per Mr. Justice Syed Mahmud Hossain, CJ: Burden of proof in wife killing case: What is more surprising to note here is that the appellant has not provided any reasonable explanation as to the cause of the death of his wife although in wife killing case, the condemned-appellant is under the obligation to do so. He has given all contradictory suggestions to the witnesses imputing allegations that the victim was a lady of lose character having illicit connection with others. In a misogynistic society, character assassination of women is a regular feature. In the case in hand even after death victim’s soul will not rest in peace because her two sons will know that their mother was a lady of questionable character. The condemned-appellant has failed to discharge his obligation by not explaining the cause of death of his wife in his house. Per Mr. Justice Muhammad Imman Ali, J Honorable Author Judge of the Majority Decision: Section 106 of the Evidence Act, 1872: With regard to the victim’s death while in the custody of her husband, the evidence on record shows that the appellant used to stay at his shop. There was no evidence that on that night he was sleeping in his own house. Hence, there is sufficient explanation from the appellant that he was not present in the house when his wife was attacked, and provision of section 106 of the Evidence Act are not applicable in the facts of the instant case.
5.	Masum Billah alias Md. Masum Billah Vs. The State (Muhammad Imman Ali, J) 16 SCOB [2022] AD 36 Key Words: Commutation of death penalty; Section 302 of Penal Code	This case involves killing of a child and causing grievous injury on the head of the mother of the child while both the victims were sleeping in their bedroom. There was no eye witness in this case. After arrest the appellant gave a confessional statement. The Appellate Division found the confessional statement of the Appellant voluntary and true and also held that there was no sudden provocation to bring the offence within the category of culpable homicide not amounting to murder and therefore, confirmed the findings of the Courts below as to the conviction of the appellant. But considering, among others, the peculiar circumstances that the appellant out of grudge dealt stone blows aimed at the head of Khadiza Begum (PW2) but that accidentally struck the head of victim Farzana and as a result of that the minor child died instantly, commuted appellant’s death penalty to imprisonment for life.	Commutation of death Penalty: According to the confessional statement, the appellant out of grudge dealt the blows aimed at the head of Khadiza Begum (PW2) but that accidentally struck the head of victim Farzana and as a result of that the minor child died instantly. Taking that into consideration and all other aspects we are of the opinion to commute the sentence of death to imprisonment for life.
6.	Md. Anwar Sheikh Vs. The State ( Md. Nuruzzaman, J) 16 SCOB [2022] AD 40 Key Words: Wife killing case; Commutation of death penalty; Section 342 of the Code of Criminal Procedure	In the instant case after 5 days’ search the dead body of the wife of the appellant was found in the septic tank of the house. There was no eyewitness of the murder. The appellant himself joined the search and at the same time tried to mislead others saying that the Jinn or Genie (some sort of supernatural creatures) picked up the victim in their realm. The victim was a simple woman who did not have any enmity with anyone. The Appellate Division assessing evidence found that the appellant failed to discharge his obligation to explain how his wife had met with her death as at the time of occurrence she was under his custody. Further, the Appellate Division though concurred with the finding of the High Court Division as to the conviction of the appellant, it commuted the sentence of death on the ground, inter alia, that if the appellant is handed down death penalty his two sons will become orphans.	Section 342 of the Code of Criminal Procedure, 1898 Husband is duty bound to explain his wife’s death when his wife dies in his custody and he can explain it in his 342 statement: From the testimonies of the PWs. 1, 8 and 9 it was proved beyond all reasonable doubt that the instant appellant left the PW.1’s house with his wife Nasima Begum Aka Bahana along with their two sons before the alleged killing of her. This event eventually proved that Nasima alias Bahana before her death was in undeniably in the custody of her husband, the instant appellant. On 01-05-2006, it was reported that she was missing. On 06-05-2006, her corpse was recovered from the septic tank of her husband. The appellant in his confessional statement admitted aforesaid recovery. He not only knows the recovery of corpse, rather, knows about the killing, even though, he falsely searched for Nasima with other inmates of the house only to show publicly that Nasima was really missing which was not fact. The appellant’s such a pretext undoubtedly proved that he was fully aware about the murder. …the instant appellant as the husband is solely responsible and duty bound to explain as to how and when his wife, Nasima Begum alias Bahana was died. He was miserable failed to explain, even if, he was examined under section 342 of the Code of Criminal Procedure to that effect.
7.	Bangladesh and another Vs. Sayed Mahabubul Karim ( Md. Nuruzzaman, J) 16 SCOB [2022] AD 46 Key Words: Rule 34, 1st Part of the Bangladesh Service Rules; Doctrine of estoppels, waiver and acquiescence; void ab intio	Question arose in this case as to whether the petitioner-respondent who left for Japan for higher training with the leave of the Government for 6 months and availed a further leave of another 3 (three) months as leave outside Bangladesh and joined in his post after 7 years 7 months 24 days being absent from service during this time without any leave from the competent authority, have ceased to be a government servant in accordance with Rule 34, 1st Part of the Bangladesh Service Rules, in spite of the fact that he was initially permitted to rejoin in the post and worked there for about 1 year and 7 months. The Administrative Appellate Tribunal decided that by accepting the joining of the respondent-petitioner the Director General of Industry and Labour Wing retrospectively approved his unauthorized leave and the Government waived its right to reject the rejoining of the petitioner in service. The Appellate Division held that the Director General was not empowered to act under rule 34 and therefore, his act of allowing the respondent rejoining in service was not only without lawful authority but also void ab intio. The Court also held that the doctrine of estoppels, waiver and acquiescence is not applicable against statutory provisions and as such, though the respondent has served for about 1 year and 7 months after rejoining in the service, that cannot be deemed to be a waiver by the government against the clear statutory provision embodied in rule 34.	Rule 34, 1st Part of the Bangladesh Service Rules: It is unambiguous from the phraseology of the rule 34 of the BSR that when continuous absence from work exceeds five years, be the absence with or without leave; the service of a Government servant will come to an end. Yet, the Government and only the Government may make a diverse conclusion upon taking into consideration any special state of affairs. Consequently, this mechanical ceasing of the service is subject to the ability of the Government to take a different decision in the light of out of the ordinary situation.
8.	Monir Ahmed Vs. The State (Obaidul Hassan, J) 16 SCOB [2022] AD 51 Key Words: Section 302 of the Penal Code; Confessional Statement; Section 164 of the Code of Criminal Procedure	This is a case of brutal killing of a 11-year-old boy for ransom by his uncle and uncle’s cohorts in which the dead body of victim could not be found due to cutting it into pieces and throwing them in the water body connected with sea. There was no eyewitness to the occurrence. Appellant made a confessional statement. The Appellate Division examining the confessional statement of the appellant found it to be voluntary and true and also found that the circumstantial evidence unerringly pointing to the guilt of the appellant but considering the length of period spent by the appellant in the condemned cell and other circumstances commuted his sentence of death to one of imprisonment for life.	Section 164 of the Code of Criminal Procedure: It is well settled that the confessional statement can be the sole basis of conviction if it is made voluntarily and it is true. In the instant case, the confessional statement of the appellant is voluntary and true and it was rightly found to be so by both the trial Court and the High Court Division. It is true that there is no eye witness in the instant case, but the inculpatroy, true, and voluntary confessional statement of the convict-appellant, and the circumstances are so well connected to indicate that those circumstances render no other hypothesis other than the involvement of the appellant in committing murder of the victim Rashed.
9.	Md. Shukur Ali and others Vs. The State (Obaidul Hassan, J) 16 SCOB [2022] AD 62 Key Words: Section 9(3) of the Nari O Shishu Nirjaton Daman Ain, 2000; Confessional Statement; Section 164 of the Code of Criminal Procedure; Section 8 and 30 of Evidence Act; Due process; Crime control	This is a case of gang rape and murder. There was no eyewitness. Appellants were suspected of being involved with the commission of crime. Police arrested appellant Mamun and Azanur who gave confessional statements describing vividly the role played by them and other co-accused, namely, Shukur and Sentu in committing the crime which was supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses regarding the marks of injury on the body of the deceased. The Appellate Division held that in such case the non-confessing accused persons can be equally held liable like Azanur and Mamun for murdering the deceased after committing rape. The Court further observed that, the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial and adverse inferences may be drawn upon silence on part of those who have been so incriminated by the confession of the co-accused. However, the Appellate Division maintained the death sentence of the appellant Shukur Ali who inflicted fatal knife injuries to the deceased and commuted the sentence of death of other appellants to imprisonment for life.	Section 30 of the Evidence Act: We hold that confessional statement of a co-accused can be used against others non-confessing accused if there is corroboration of that statement by other direct or circumstantial evidence. In the instant case, the makers of the confessional statements vividly have stated the role played by other co-accused in the rape incident and murder of the deceased which is also supported/corroborated by the inquest report, postmortem report and by the depositions of the witnesses particularly the deposition of P.Ws.1,2,3,10,11,12,14 and 18 regarding the marks of injury on the body of the deceased. Every case should be considered in the facts and circumstances of that particular case. In light of the facts and circumstances of the present case, we are of the view that the confessional statement of a co-accused can be used for the purpose of crime control against other accused persons even if there is a little bit of corroboration of that confessional statement by any sort of evidence either direct or circumstantial. (Emphasis added). Thus, the accused namely Shukur and Sentu are equally liable like Azanur and Mamun for murdering the deceased after committing rape.
10.	Abdur Rashid being dead his heirs Md Hossain & ors. Vs. Nurul Amin & ors (Borhanuddin, J) 16 SCOB [2022] AD 77 Key Words: Section 90 and 96 of the State Acquisition and Tenancy Act; pre-emptory right;	The question came up for consideration in this case whether after transfer by pre-emptee-opposite party no.1 to co-sharer opposite party no.6 the pre-emptory right of the pre-emptor exists or not. The Appellate Division examining section 90 and 96 of State Acquisition and Tenancy Act and the view taken by their lordship in the case of 50 C.W.N. 806 as well as 35 DLR 238 and also distinguishing the facts of 35 DLR (AD) 225 held that even after subsequent transfer by the stranger pre-emptee to another co-sharer of the holding, the pre-emptory right of a co-sharer pre-emptor will not be defeated.	Section 96 of the State Acquisition and Tenancy Act: We have no hesitation to hold that even after subsequent transfer by the stranger pre-emptee to another co-sharer of the holding, the pre-emptory right of a co-sharer pre-emptor will not be defeated as because the subsequent transfer is subject to the right available against the original transfer and the subsequent transferee would be impleaded as party in the pre-emption proceeding and he would be entitled to get the consideration and compensation money as deposited by the pre-emptor.
11.	Commissioner, Customs, Excise and VAT Com. & ors. Vs. Perfect Tobacco Co. Ltd (Borhanuddin, J) 16 SCOB [2022] AD 84 Key Words: Section 42(1) (Ka) of the VAT Act; maintainability of writ; Article 102 of the Constitution	The respondent filed a writ petition in the High Court Division challenging an adjudication order of the writ respondent no. 2 wherein he imposed penalty of Tk. Tk.43,00,000/- for evasion of VAT of Tk. Tk.25,02,464/- by the respondent. High Court Division made the Rule absolute. Appellate Division, however, following the decision reported in 18 BLC (AD) (2013) 144 examined the question of maintainability of the writ petition first, and held that writ is not maintainable in the instant case as the respondent had impugned an adjudication order passed by the Assistant Commissioner, Customs, Excise and VAT Division, Kushtia which is an appealable order under section 42(1)(Ka) of the VAT Act. The Appellate Division then without going into the merit of the case set aside the judgment and order of the High Court Division holding that the respondent still can seek relief in proper forum resorting to section 14 of the Limitation Act.	Section 42(1) (Ka), 42(2) (Ka) of the VAT Act read with article 102 of the Constitution: Any person aggrieved by the decision or order passed by the Commissioner, Additional Commissioner or any VAT Official lower in the rank of the Commissioner or Additional Commissioner can prefer appeal to the forum prescribed in the section. In the instant case the writ-petitioner impugned adjudication order dated 15.08.2007 passed by the writ-respondent no.2 Assistant Commissioner, Customs, Excise and VAT Division, Kushtia which is an appealable order under section 42(1)(Ka) of the VAT Act and section 42(2)(Ka) mandates that 10% of the demanded VAT is to be deposited at the time of filing of the appeal. When there is a statutory provision to avail the forum of appeal against an adjudication order passed by the concern VAT Official then the judicial review under Article 102(2) of the constitution bypassing the appellate forum created under the law is not maintainable.
12.	Minaz Ahmed and another Vs. Arif Motahar and others (M. Enayetur Rahim, J) 16 SCOB [2022] AD 89 Key Words: Money Laundering Protirodh Ain, 2012; Anti-Corruption Commission Act, 2004; Money Laundering Protirodh Bidhimala, 2019; Bail by a Magistrate in a case triable by Special Judge	The question came up for consideration in the instant petition is- whether in a case under the Money Laundering Protirodh Ain, 2012 the Magistrate has jurisdiction to deal with the application for bail of an accused as he has no jurisdiction to take cognizance of an offence under the said Ain. The Appellate Division held that under the Money Laundering Protirodh Ain, 2012 beside the Anti-Corruption Commission, Police as well as other agency/organization of the government is empowered to investigate a case but as per schedule, (gha), of Anti-Corruption Commission Act, 2004 and schedule 01 to the Money Laundering Protirodh Bidhimala, 2019 the Commission is authorized to investigating those cases which relate to bribe and corruption only. The other offences under the Ain have to be investigated by the CID or any other agency(s) as prescribed in the schedule of the said Bidhimala, 2019. On the other hand, the other investigation agency(s) as per Upa bidhi 7 of bidhi 51 of the Bidhimala, 2019 shall follow the provisions of Code of Criminal Procedure while carrying out the investigation. The Special Judge has no jurisdiction to deal with a case initiated under Money Laundering Protirodh Ain by any other investigation agency other than the Anti Corruption Commission before taking cognizance. Thus, before submitting report as per provision of section 173 of the Code of Criminal Procedure and taking cognizance of the offence by a Special Judge at the pre-trial stage an accused has every right to move all kinds of applications including the application for bail before the Magistrate concerned where the case is pending and record lies. As per provision of section 497 of the Code of Criminal Procedure the Magistrate concerned has got the jurisdiction to deal with the matter in accordance with law. It also opined that in the absence of any express or implied prohibition in any other special Law or Rule, the Magistrate concerned may entertain, deal with and dispose of any application for bail of an accused under section 497 of the Code of Criminal Procedure.	Jurisdiction of Special Judge in cases initiated by any agency other than the Anti-corruption Commission under the Money Laundering Protirodh Ain: The Special Judge appointed under the provision of Act of 1958 has no jurisdiction to deal with a case initiated under Money Laundering Protirodh Ain by any other investigation agency other than the case initiated by the Commission before taking cognizance. Jurisdiction of the Magistrate in cases initiated by any agency other than the Anti-corruption Commission under the Money Laundering Protirodh Ain: Thus, before submitting report as per provision of section 173 of the Code of Criminal Procedure and taking cognizance of the offence by a Special Judge appointed under the Act of 1958 i.e. at the pre-time stage an accused has every right to move all kinds of applications including the application for bail before the Magistrate concerned where the case is pending and record lies. And as per provision of section 497 of the Code of Criminal Procedure the Magistrate concerned has got the jurisdiction to deal with the matter in accordance with law. Section 497 and 498 of the Code of Criminal Procedure: In the absence of any express or implied prohibition in any other special Law or Rule, the Magistrate concerned may entertain, deal with and dispose of any application for bail of an accused under section 497 of the Code of Criminal Procedure. In case of rejection of his application for bail he may move before the Court of Sessions by filing a Criminal Miscellaneous Case under section 498 and thereafter in case of failure before the Court of Sessions, he can move under section 498 of the aforesaid Code for bail before the High Court Division.
13.	DG, Health Directorate & ors Vs. Dr. Md. Tajul Islam & ors (M. Enayetur Rahim, J) 16 SCOB [2022] AD 100 Key Words: Legitimate Expectation; Recruitment; Government policy; vested right	In the instant case writ petitioners-respondents in response to the advertisement published by the concerned authority for appointment in a project applied accordingly and sat for written and viva voce examination in 2003. However, the said appointment process was eventually stopped and postponed. The project eventually ended without appointing them in the said posts. Now the writ petitioners-respondents have sought for appointment in another project which has started in 2017 after a long period of closure of earlier project. They claim that since they had participated in the written and viva voce examination earlier and in the new project there are vacant posts, they have a legitimate expectation to be appointed directly in the said post. The High Court Division made the Rule absolute directing the authority concerned to fill up the posts advertised in the new project if the writ petitioners are selected in earlier appointment process and if they are not otherwise disqualified as per the present circular in any manner. The Appellate Division, however, set aside the judgment and order passed by the High Court Division holding that the writ petitioners-respondents did not have acquired any legal right to be appointed in the earlier project and now they cannot claim to be appointed in new project. Referring to its earlier judgments reported in 71 DLR (AD) 395 and 72 DLR (AD) 188 the Appellate Division reiterated that the doctrine of legitimate expectation can neither preclude legislation nor invalidate a statute enacted by the competent legislature. When the government changes policy, if it is not malafide or otherwise unreasonable, the doctrine of legitimate expectation cannot defeat the changed policy.	Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed: The writ petitioners-respondents did not have acquired any legal right to be appointed in HPSP project and now they cannot claim to be appointed in new project i.e. Alternative Medical Care (AMC) Operational Plan (OP) as of right without participating in recruitment process. The writ petitioners-respondents participated in the examination for appointment under HPSP project in the year 2003 and having regard to the fact that the said appointment process was postponed and cancelled and on the plea of their participation in the earlier written and viva examination, no legal and vested right has been created in favour of the writ petitioners-respondents to be appointed to the posts as allegedly vacant in the new project. Mere participation in the written and viva voce examination, ifso facto, does not create any vested right in favour of the writ petitioners-respondents to be appointed automatically in the newly created posts in subsequent project.
14.	Eriko Nakano Vs. Bangladesh and others (Krishna Debnath, J) 16 SCOB [2022] AD 107 Key Words: Custody of minor children; Article 7, 12, 20 and 21 of the Convention on the Rights of Child; Guardians and Wards Act, 1890; best interest of the child; enforceability of provisions of international instruments	A Bangladeshi father, namely, Imran Sharif taking his two minor girl children aged about 9 and 11 years came from Japan without informing their mother with whom the father had a strained relationship. They had another girl child born in their wedlock aged about 7 years, but the father left her in her mother’s custody. A case regarding custody of the children was pending in the family Court of Japan but no prohibitive order about leaving Japan was issued by the Court. When the mother of the Children came to know that their father had taken them in Bangladesh, keeping the third child in the custody of her grandfather the mother left Japan for Bangladesh and filed a Writ Petition in the High Court Division of the Supreme Court of Bangladesh for the custody of the children. The father also filed a case before a competent Family Court of Bangladesh for custody of the Children which was pending at the time of adjudication of this petition. The High Court Division ordered that the children will remain in their father’s custody and the mother shall have right to visit their children. The High Court Division further ordered that the father will have to pay a certain amount of money to the mother for coming Bangladesh and visiting her children after interval of a certain period. Against the order the mother filed this petition. The Appellate Division considering the relevant international and domestic law and decision of the apex court of this sub-continent in similar matter held that in such case the object of the Court would be to see how the best interest of the children is protected. It also held that the appropriate forum for deciding the dispute of custody of the children is the Family Court before which a case is already pending ordered the Family Court to complete the trial of the case within three months. It also set aside the order of the High Court Division and placed the children in the custody of their mother with a visitation right of their father until the suit in family court is disposed of. It also clarified that judgment in this petition will have no bearing upon the decision to be reached at by the learned Assistant Judge/Senior Assistant Judge while disposing of the family suit.	The court must look for the best interests of the minors: The court must look for the best interests of the minors and the petitioner in the present case being the mother of these two minor daughters left each and every effort for their best interest. It was decided in the case Abu Bakar Siddique vs SMA Bakar reported in 38 DLR(AD)106 that “welfare of the child would be best served if his custody is given to a person who is entitled to such custody.” It is the Family Court who has the jurisdiction to settle the question of custody of a minor: Considering the aforesaid facts and circumstances we are of the view that removal of the detainees from the custody of their mother petitioner is without lawful authority and they are being held in the custody of respondent No.5 in an unlawful manner and the High Court Division passed the judgment beyond the scope of law which required to be interfered. In this case only Family Court has the jurisdiction to settle the question of custody of a minor. The Family Court will look into the cases referred by the parties and come to a finding in whose custody the welfare of the detainees will be better protected.