CONSTITUTION OF BANGLADESH, 1972, PART 11

Article-113 read with

Administrative Tribunals Act, 1980

Relating to transfer of a government Servant

It may be argues that the Administrative Tribunal had no authority to order of stay or injunction hut when a person is transferred from one place to another he is to follow or abide be that order. If by the order of transfer any terms and conditions of service is violated his remedy lies before the Administrative Tribunal. But it cannot be a ground to issue and order of stay by the High Court Division only on the ground that the Administrative Tribunal had no authority to pass any such order.

Bangladesh & Ors. Vs. S. M. Fariduddin & Ors. 11BLT(AD)-51

Article-115

The word “appointments” in Article 115 means that it is the President who under Article 115 can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that behalf, make ruled regulating their suspension and dismissal but % Article 115 does not contain any rule making authority with
regard to other terms and condition of service and that Article 13.1 and Article 13.6 of the Constitution and the Services (Reorganization and conditions) Act. 1975 have no application to the above matters in respect of the judicial service and Magistrates exercising judicial functions.

Govt. of Bangladesh Vs. Md. Masdar Hossain & Ors. 8BLT (AD)-234.

Articles-115, 133 and 136

Separate Judicial Public Service Commission

Articles 133 and 136 are general provision but article 115 is a special condition. This power of the President cannot be obliterated when Palrliment makes or exhausts its exercises under Article 136. The President is not empowered to act under the proviso to Article 133 when he is required to do under Article 1 15. The Parliament in exercise of its power under Article 136 cannot usurp the primary rule making power of the President under Article 115. Article 136 will always have to be read keeping in view the fact that the reorganization of the services cannot be allowed by amalgamating or unifying the judicial service with any civil administrative executive services. Article 133 or Article 136 does not authorize the Parliament or the President to minimize the independence of the subordinate judiciary resorting to subordinate legislation or rules. Security of salary and other recommendation of the members of the judicial service is ensured through the financial independence of the judiciary and as such there-should be a completely different pay commission to determine the grade, scale of pay of the members of the judicial service.

Secretary Ministry of Finance Vs. Md. Masdar Hossain & Ors. 9 BLT (AD)-67.

Article-116

In exercising control an discipline of persons employed in the judicial service and Magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the Executive.

Govt. of Bangladesh Vs. Md. Masdar Hossain & Ors. 8BLT(AD)-234

Article-116 read with

Representation of People’s Order, 1972

Article-91A

Over a by-election the Election Commission formed a committee to inquire into certain allegations Held: The petitioner who fought the b\-election cannot have any choice in the persons who are to act as members of the committee. It is in between the Election Commission and respondent No. l and when the Election Commission accepted the formation of the committee which was formed with the approval of the Supreme Court the petitioner has not cause to be apprehensive on the formation of the
committee.

Bangabir Kader Siddique, Bir Uttam Vs. Govt. of Bangladesh 9BLT (AD)-139

Article-116

In exercising control a discipline of persons employed in the judicial service and Magistrates exercising judicial functions under Article 116 the views and opinion of the Supreme Court shall have primacy over those of the Executive.

Bangabir Kader Siddique, Bir Uttam Vs. Govt. of Bangladesh 9BLT (AD)-139

Article-117

When fundamental right is sought to be enforced only to avoid the alternative remedy available under the law such as by a public servant in respect of any of the terms and conditions of his service by filling a writ petition without going to the Administrative Tribunal constituted under the Administrative Tribunals Act, 1980 made in pursuance of any law’ or rule relating to his terms and conditions of service is questioned such petition is not maintainable.

Bangladesh & Ors. Vs. Mizanur Rahman 9 BLT(AD)-166.

Article-133 Read with Bangladesh Agricultural Development Corporation Service Regulations 1968

(As Amended 1990)

It is true that there is no right of promotion but it is also true that an employee has a right to be considered of promotion, which is a condition of his service. Article 133 of the constitution gives the authority power to regulate the appointment and ser\e conditions of persons in the service of the republic. But it does not give power to prohibit promotion beyond the provision of law. The term “regulate” is not complementary to the term “prohibition” Therefore, none of the provisions of BADC Service Regulations. 1990 is to be read to impose prohibition on the promotion of the writ petitioner respondent to the post of the Superintending Engineer as a right had already accrued to him under BADC Service Regulations. 1968.

Motiur Rahman & Ors. Vs. BADC 11BLT (AD)-151.

Article-133

Under Article 133 law or rules or executive orders having the force of Rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), pay. allowances, pension (as a matter of right, not favour) and other terms and
conditions of service, consistent with Articles, 116 and 116A, as interpreted by us, be enacted or framed or made separately for the judicial service and Magistrate exercising judicial functions keeping in view the constitutional status of the
said service.

Govt. of Bangladesh Vs. Md. Masdar Hossain & Ors. 8BLT (AD)-234