Dr Abeda Begum and others Vs. Public Service Commission and others

Dr Abeda Begum and others (Petitioners)

Vs.

Public Service Commission and others (Respondents)

 

 

Supreme Court

High Court Division

(Special Original Jurisdiction)

Present:

MM Hossain J

Farid Ahmed J

Judgment

May 18, 2006.

Cases Referred To-

Principal, Chittagong Medical College and others vs. Shahrayar Murshed 48 DLR (AD) 33; Government of Bangladesh and others vs. Md. Tajul Islam 49 DLR (AD) 177; Shearer vs. Shield, 1914 AC 808. Ram Chandra vs. Secretary to Government of West Bengal AIR 1964 Cal 265, 272; Shearer vs. Shield 1914AC 808; Dr. Nurul Islam vs. Bangladesh 1981 BLD (AD) 140 = 33 DLR (AD) 201; Mansurul Aziz and another vs. Secretary, Ministry of Land Administration and Land Reforms and others 1981 BLD (AD) 75; Khondker Moshtaque Ahmed vs. Bangladesh 1982 BLD (AD) 39 =34 DLR (AD) 222; Central London Property Trust Ltd. vs. High Trees Lad (1947) I KB 130; Secretary, Ministry of Industries vs. Salh Ahmed and another 46 DLR (AD) 148; Collector of Customs vs. Abdul Halim 42 DLR (AD) 167; Secretary, Ministry of Industries vs. Saleh Ahmed and another 1981 BLD (AD) 91; Findly vs. Secretary of State (1984) 3 All ER 801; CCSU vs. Minister for Civil Service (1985) 1 AC 374; Navjyoti Coo-Group Housing Society vs. Union of India AIR 1993 (SC) 155; Food Corporation of India vs. Messrs Kamdhenu Cattle Feed Industries AIR 1993 (SC) 1601; Punjab Communications Ltd. vs. Union of India AIR 1999 (SC) 1813; Attorney-General of Hong Kong vs. Ng Yuen Shiu (1983) 2 AC 629; Bangladesh vs. Md. Abul Hossain 2003 BLD (AD) 129 = 9 BLC (AD) 119; Bangladesh Soya Protein Project Ltd. vs. Secretary, Ministry of Disaster Management and Relief, Bangladesh & others 6 BLC 681; Rabia Bashri Irene and another vs. Bangladesh Biman Corporation & another 52 DLR 308; Council of Civil Service Union and others vs. Minister for the Civil Service 1985 AC 374.

Lawyers involved:

Sara Hossain, Advocate—For the Petitioners.

Fida M Kamal, Additional Attorney-General with Zaman Akhter, Deputy Attorney-General, Rokanuddin Mahmud, Md Rabiul Alam, Advocates—For Respondent No. 5.

Writ Petition No. 4546 of 2003.

Judgment

MM Hossain J.- This Rule was issued calling upon the respondents to show cause as to why the impugned actions excluding the names of the 292 candidates including the petitioner, from the notice bearing No. BASAKAKA-Pa Ni: Shakha dated 25­6-2003 (Annexure A) issued by the respondent No. 2 should not be declared to have been made without lawful authority and to be of no legal effect and/or such other of further order or orders passed as to this Court may seem fit and proper.

2. The petitioners, namely, Dr. Abeda Begum, Dr. Md. Borhanuddin Howlader, Md. Faizur Rahman Kha, Mohammed Rizwan Hashmi, Khondaker Shaheen Hossain, Farid Ahmed, Md. Jamaluddin, Md. Ziaur Rahman, Muhammad Monirul Islam Khan, Helana Akhter and Mahfuz Jesmin filed the Writ petition challenging the impugned Notice dated 25-6-2003 (Annexure A) in excluding the names of the 292 examinees including the petitioners in 23rd BCS (Special) Examination, 2000 qualified in all previous written examinations for appearance in the Viva-Voce Examination without giving any valid reason whatsoever.

3. The petitioners are bona fide citizens of Bangladesh and as examinees in the 23rd BCS (Special) Examination, 2000 have successfully passed preliminary objective test held on 23-3-­2001, written examination held on 21-4-2001 and the Psychological Written Examination held on 16­6-2003 and thus they are all qualified and entitled to appear along with other successful examinees, in the Viva-Voce Examination which having commen­ced on 6-7-2003 would continue upto 8-7-2003. There are 292 examinees, including the petitioners from different parts of the country, who are aggrieved by the selfsame arbitrary and mala fide action of the respondents and thus the petitioners filed the writ petition for themselves and on behalf of other aggrieved and seriously affected examinees as the next friends in representative capacity. The respondent No. 1 is the Public Service Commission, the respondent No. 2 is the Chairman of the Com­mission, the respondent No. 3 is the Secretary, Ministry of Liberation War Affairs and the respondent No. 4 is the Secretary, Ministry of Estab­lishment. The petitioners impugn the arbitrary and mala fide actions of the respondents in excluding the registration number of 292 examinees, including the petitioners in the 23rd BCS (Special) Examination, 2000 qualified in all the previous examinations from the Notice bearing No. BASAKAKA Pa: Ni : Shakha /l1/2003/145 dated 25-6-2003 (Annexure A) for appearing in the Viva-Voce Examination issued under the signature of the respondent No. 2 which is violative of their fundamental rights guaranteed by Articles 27, 29 and 31 of the Constitution. The respondents in order to ensure welfare of the families of the freedom fighters, in particular to recruit them in the service of the Republic, pub­lished a notice in the Daily Bangladesh Observer dated 8-12-2000 (Annexure B) inviting applications for recruitment of freedom fighters and the children of freedom fighters/shahid freedom fighters through the 23rd BCS (Special) Examination, 2000.

4. The petitioners and other prospective candidates applied to the respondent No. 1 PSC who upon scrutiny of the applications received and on being satisfied issued Admit Cards bearing the registration numbers of the valid applicants including the aforesaid 292 examinees. In order to identify that the candidates are either freedom fighters or children of freedom fighters or shahid freedom fighters it was necessary to furnish the attested copies of the certificates of freedom fighters duly issued under the signature of the Chairman of the Central Command Council of Bangladesh Freedom Fighters Association and countersigned by the Chief Adviser (i.e. Prime Minister) and in case the candidate is a child of a freedom fighter an attested copy of such certificate of his/her parent is required to be submitted. The aforesaid 292 examinees are children of freedom fighters and shahid freedom fighters but they did not possess the original certificates as required by the respondent No. 1 PSC at the material time as issuance of the said certificates was in the process. In such circum­stances, the aforesaid examinees approached the respondent No. 1 PSC, who instructed them to furnish Provisional Certificates to be issued by the Chairman of the Central Command Council of Freedom Fighters Association (being the predecessor of the respondent No. 4) certifying that they are children of freedom fighters. The petitioners along with the other examinees relying and acting upon the aforesaid instructions collected and submitted the provisional certificates evidencing that they are the children of the freedom fighters. The respondent No. 1 being satisfied as to qualifications and documentations issued Admit Cards to each of the aforesaid 292 examinees along with other qualified examinees including the petitioners fixing 23-3-2001 for preliminary objective examination. Thereafter, the respondent PSC published in the daily newspapers the regis­tration numbers of the successful candidates in the written examinations. The results of the written examinations of the candidates including the aforesaid 292 candidates inclusive of the petitioners were published in the daily newspapers. Copies of the results of the preliminary examinations containing the registration numbers of the successful candidates including the petitioners and also the results of the written examinations published in the daily Ittefaq dated 23-10-2001 were marked as Annexures E and E(l) respectively. The aforesaid 292 candidates including the petitioners were required to attend the Psychological written examination prior to appearing at the Viva-Voce Examination. They successfully appeared at the Psychological written examination on 16-6-2003, which was after lapse of about 2l/2 (two and a half) years. In view of the successfully passing the afore­said examination the aforesaid 292 candidates including the petitioners were automatically qualified to appear at the Viva-Voce Examination. The respondent No.1 traditionally advertises in the public media notifying the successful candidates of the schedule of Viva-Voce Examination. But in the instant case no such notification has been made. The petitioners upon an inquiry came to learn that the respondent No.1 PSC issued the notice dated 25-6­2003 (Annexure-A) only and displayed the same on its Office Notice Board, from which 292 successful candidates including the petitioners were excluded, giving the opportunity only to 102 examinees to participate in the Viva-Voce Examination. It has been stated in the impugned notice that only the candidates successful in written examinations are allowed to appear at the Viva-Voce Examination, but the aforesaid 292 successful candidates, including the petitioners were excluded from the notice arbitrarily and without disclosing any reason whatsoever. In the meantime, the petitioners received certificates issued by the respondent No.4 which are marked as Annexures F, F(l) and F(9) respectively. The petitioners in the circumstances, contacted the respondent No. 1 PSC who informed them that for submission of Provisional Certificates, they refused to accept the same and allow them to appear in the Viva-Voce Examination. Though the petitioners tendered the certificates issued by the respondent No. 4 yet the respondent No. 1 refused to accept the same, disregarding the fact that following the change of the Government and restructuring of the authority, the certificates were no longer issued in the old form which is wholly arbitrary, mala fide and for collateral purpose so as to deny any facility to the petitioners and others who are the children of the freedom fighters.

5. Being aggrieved by the impugned action of the respondents in excluding the registration numbers of 292 candidates including the petitioners arbitrarily and without any valid reason from the notice bearing No. BASAKAKA-pa: Ni: Shakha/ 11/2003/145 dated 25-6-2003 (Annexure-A) issued under the signature of the respondent No. 2 and having no other alternative or efficacious remedy these petitioners preferred the writ petition and obtained the instant Rule.

6. The respondent No. 1 PSC filed an Affidavit-in-Opposition denying the material allegations in the writ petition stating, inter alia, that the result of the 23rd BCS (Special) Written Examination was published on 22-10-2001 by press release bearing No. BASAKAKA/ SHAKHA-2/1E-17/2001/229 in which 395 candidates were declared provisionally successful wherein it was clearly mentioned that the commission reserves the right to amend the result, if necessary, for any reason. The petitioners including others were found ineligible to appear at the Viva­-Voce Examination for different valid grounds. Thus they were not called for Viva-Voce Examination held on 6th to 8th July, 2003. The reasons for not allowing the petitioners to appear at the Viva-Voce Examination are stated as follows: The petitioner No. 1 Dr. Abeda Begum, No. 2 Dr. Md. Borhan Uddin Howlader, No. 3 Md. Faizur Rahman Kha, No. 5 Khandaker Shaheen Hossain, No. 7 Farid Ahmed, No. 8 Md. Jamal Uddin, No. 9 Md. Ziaur Rahman, No. 10 Muhammad Monirul Islam Kha, and No. 12 Mahfuz Jesmin did not submit copies of their Secondary School Certificates and their fathers’ Freedom Fighter Certificates signed by the then proper authority. The permanent addresses of the petitioner No. 4 Mohammad Rizwan Hashmi, No. 6 Mohiuddin Ahmed and No. 11 Helena Akhter mentioned in their respective application forms are quite different from those of their fathers’ Freedom Fighter Certificates. It is stated that no arbitrary and mala fide action was taken by the respondent-Public Service Commission in not calling the 292 examinees including the petitioners for appearing at the Viva-Voce Examination. The petitioners were found unfit to appear at the Viva-Voce Examination. Out of the 395 candidates who passed the written examination 100 candidates did not appear in the psychological test. The Bangladesh Public Service Commission (PSC) did not issue the Admit Cards upon the petitioners after being satisfied on scrutiny of their application forms as claimed by the peti­tioners. It is the practice of the respondent PSC to issue Admit Cards to the candidates only after primary checking/scrutiny of the application Forms because of the huge number of candidates in all cadres/non-cadres recruitment examinations. The final checking /scrutiny is done after the Viva-Voce Examination. Paragraph Nos. 11 and 12 of the written instructions supplied to the candidates with their application Forms provide what documents they are required to submit with their application Forms. and paragraph No.23 provides that candidature of an applicant may be rejected at any stage of the recruitment process if any fault or defect whatsoever be detected. Under Rule 7(1) of BCS (Age, Qualification and Examination for Direct Recruitment) Rules, 1982 the decision of the Commission as to the eligibility or otherwise of a candidate for admission to an examination shall be final As per para 7(cha) of the Advertisement of the 23rd BCS (Special) Examination, 2000 the candidates were required to submit their own or their parents’ Freedom Fighter Certificates signed/ countersigned by the then appropriate authority with the application forms and in the case of a candidate who is the child of a female Freedom Fighter a certificate issued by the Chairman, union parishad/Ward Commissioner stating that he/she is the child of a female Freedom Fighter be submitted. So, after completion of Psychological Written Examination, there is no scope for the Chairman, Public Service Commission to instruct any candidate to submit any provisional document. The respondent No.1 did not give any instruction to any of the 292 examinees to collect or submit any sort of certificate. It is stated that out of 395 candidates passed in the written examinations 100 candidates did not appear in the Psychological Written Exami­nation. After the Psychological Written Examina­tion 292 candidates including the petitioners were found unfit for non-compliance of different man­datory provisions as was required to comply with at the time of filing application Forms and accordingly, they were declared unqualified to call for Viva-Voce Examination. It is stated that at the time of making schedule of Psychological test of successful candidates in the written examination of 23rd BCS (Special) Examination, 2000 a Govern­ment Directive under the Memo No. Sama (SP)52/ 2001358(120) dated 21-10-2001 was issued which reads as follows:

“The Government has decided that all direct recruitments under the Ministries/Divisions and their Subordinate/Divisional Administration/ District Administration/Department/Directorate and Autonomous/Semi-Autonomous Body shall be suspended till further order to this effect. All sorts of recruitment processes shall fall under this stay order” (Annexure 6).

7. Subsequently by Memo No. Sama/Nani/ 10/2001-33 dated 8-6-2002 (Annexure 7) the stay order was partly vacated till the recruitment process of the 23rd BCS (Special) Examination, 2000 was kept in abeyance by the commission. The Public Service Commission did not make any unnecessary or intentional delay and the psychological test was held after lifting of the aforesaid embargo issued by the Ministry of Establishment on 21-10-2001. It is stated that 292 candidates including the petitioners were not called for Viva-voce Examination because at the time of scrutiny their applications were found defective and it was within the express power and authority of the Public Service Commission to can­cel any application at any stage, even after the Vivavoce Examination vide Notice bearing No. BASAKAKA SAKHA-2/IE/2000/251 dated 30-11­2000 (Annexure 2) and Notification No. SRO 142-L/82/ED/Recruitment/l15/80 dated 11-5-1982 (Annexure 5). In the result of the written examina­tion of the BCS (Special) Examination, 2000 published on 22-10-2001 by the press release vide Annexure I it was clearly stated that the commission reserves the right to amend the result if necessity arises for any reason. Therefore, there was no mala fide or arbitrary action on the part of the respondent PSC refusing to accept when the petitioners wanted to submit their parents’ Freedom Fighter certificates then issued by the authority and the request could not be accepted as this would have violated the prescribed rules relating to submission of the Application Forms having serious implica­tions affecting the total process of cadre and non-cadre examinations. The petitioners were not arbitrarily denied facilities and nothing was done mala fide by the respondent-Public Service Commis­sion. It is stated that the notice bearing No. BASA-KASA/Pa:Ni; Shakha/11/2003/145 dated 25-6-2003 vide Annexure-A to the writ petition cannot be said to be without lawful authority and of no legal effect because 292 candidates were found unfit to appear before the Viva-voce Board for different defects in their Application Forms, and the reasons of such disqualification relating to the petitioners have already been stated before. In discharge of its constitutional duties Bangladesh Public Service Commission did not do any wrong and whatever is done under the prevailing laws and rules concerned is to ensure fair justice to all job seeking candidates of the whole country. The whole thing was done with lawful authority. No instruction was given by the respondent No. 1 PSC to any petitioner or anybody else as to submission of any sort of docu­ment or certificate. The Public Service Com­mission has not done anything wrong in refusing to accept certificates which were required to be submi­tted with the application Forms as per prescribed rules. The petitioners having accepted the prescribed rules cannot now claim any right to represent their case on any matter not covered by those rules. The petitioners were found unfit due to their own fault and defects and, as such, they were not allowed to appear at the Viva-voce Examination. The writ petition is based on distortion of facts and, as such, the Rule is liable to be discharged.

8. The petitioners filed an Affidavit-in-Reply against the Affidavit-in-Opposition filed by the respondent No.1 denying the allegations made in the Affidavit-in-Opposition stating, inter alia, that to the best of knowledge of the petitioners, the respondent No.1 PSC never published any public notice amending or modifying the results dated 22­10-2001 of the written examination of 23rd BCS (Special) Examination, 2000 held by it, nor the petitioners ever received any notice from the respondent No.1 PSC communicating modification of the said result dated 22-10-2001. It has come as a bolt from the blue when the petitioners first realised from the impugned notice dated 25-6-2003 (i.e. the schedule of the Viva-Voce Examination) that the respondent No.1 has arbitrarily denied them the opportunity to attend the Viva-Voce Examination without disclosing any reason. The petitioner No. 1 Dr Abeda Begum denies that she has not submitted a copy of the SSC certificate with her BCS applica­tion. After scrutiny of her application and suppor­ting documents including academic credentials, the respondent No. 1 PSC being satisfied as to compe­tency issued Admit Card allowing the petitioner No. 1 to appear at the different stages of the recruitment examination process which she successfully passed. The petitioners were denied to show all their original certificates before the Viva-voce Examination Board as per clause 7(Bi:Dra) of the Advertisement (Annexure 2). The petitioner No. 3 stated that he received his father’s Freedom Fighter certificate from the Bangladesh Muktijoddha Sang-shad on 19-2-2001 (Annexure I) and he submitted a copy thereof to the respondent No. 1 immediately. The petitioner No. 11 denies the allegation that her permanent address mentioned in her application form is different from that of her father’s Freedom Fighter certificate, since there is no other address which she could use or refer to and therefore, puts the respondent No. 1 to strict proof of its allegation. The respondent No. 1 PSC had never communicated to the petitioners any reason for arbitrarily denying opportunity to attend the Viva-voce Examination. The contentions of the respondent No. 1 PSC are contrary to the law being Rule 10(1) of the Bangladesh Civil Service (Age, Qualification and Examination for Direct Recruitment) Rules, 1982. The respondent No. 1 PSC being reposed with the constitutional duty of selecting candidates in the service of the Republic cannot and does not have unfettered and arbitrary discretionary power under Rule 7(1) of the Bangladesh Civil Service (Age, Qualification and Examination for Direct Recruitment) Rules, 1982. It is stated that the petitioners had applied to the respondent No. 1 PSC for admission to 23rd BCS (Special) Examination, 2000 and upon scrutiny of their applications and supporting documents the respondent No. 1 PSC having found it to be correct and in form issued Admit Cards to the petitioners and also allowed them to appear at different stages of the recruitment examinations which the petitioners successfully passed. This confirms the position that the petitioners’ applications and supporting documents were found to be correct and valid and accordingly, it is clearly arbitrary and mala fide on the part of the respondent No. 1 PSC to deny the petitioners right to participate in the final stage of recruitment process on the so-called pretext of alleged incomplete appli­cations after the petitioners’ completion of almost all the stages of recruitment examinations, save and except the Viva-voce Examination, the respondents are estopped from raising the pretext of incomplete application at this stage. Since the Muktijoddha Sangshad which is an authority authorised to issue freedom fighter certificates was unable to deliver the certificates within the last date for filing BCS applications (i.e. 15 January, 2001) and under the above circumstances, the petitioners procured and submitted certificates issued by the Central Command Council of Freedom Fighters Association (Muktijoddha Sangshad) under the advice of the respondent No. 1 and, as such, the respondent No. 1 is estopped from rejecting the applications of the petitioners on the mala fide and arbitrary pretext of non-filing of the Freedom Fighter Certificates issued under the joint signatures of Muktijoddha Sangshad and the then Prime Minister. The contention of the respondent No. 1 PSC that if they had to accept the certificates issued by the Ministry of Liberation War Affairs the larger interest of the nation would have been seriously prejudiced or would have serious implications affecting the total process of cadre and non-cadre service are manifestly bereft of any reason and are misconceived and hence denied. The petitioners are fit to serve in the service of the Republic in terms of their academic qualifications, aptitude results and physically and they have succeeded in all the stages of public competitive examinations until arbitrarily denied an opportunity by the respondent No. 1. The Ministry of Establish­ment (Bidhi 1 Section) by a Circular dated 24-3­1999 (Annexure K) formed a Six-Member Commit­tee to advise the Government on defining the terms “Freedom Fighter” and the allied matters, of which the Chairman of the Bangladesh Muktijoddha Sangshad Central Command Council was one of the constituting members. The certificates (Annexures C/C2 and C1O) submitted by the petitioners with their BCS application Forms were also issued under the authority of the Muktijoddha Sangshad Central Command Council. After the change of the govern­ment in the year 2001, the government formed the Ministry of Liberation War Affairs and enacted Jatiya Muktijoddha Council Ain (National Freedom Fighters’ Council Act) 2002. By a Notification dated 26-2-2002 (Annexure-L), the Government required all Provisional Certificates relating to Freedom Fighters to be signed by the Secretary and counter­signed by the concerned Minister/State Minister and the original certificate to be signed by the concerned Minister and countersigned by the Prime Minister. Subsequently, the Government by its Notifications dated 16-4-2002 (Annexure-M) and 8-5-2002 (Annexure-N) acknowledged the fact that the issuance of original certificates is a time consuming process and directed the authorities to accept its provisional certificate/certificates for the time being. The petitioners have reasonable pounds for believing that the certificates (Annexure C, C2 and C1O) issued by the Bangladesh Muktijoddha Sangshad Central Command Council with similar authority be acceptable to the respondent No. 1 PSC which is evident from the fact of issuance of Admit Cards and allowing the petitioners to participate at the different stages of the 23rd BCS (Special) Examination, 2000. The Government had issued Notifications on many occasions, including those of 7th June and 6th December, 1999 for effective implementation of the Government/State policy decision for promoting the welfare of the freedom fighters and their children. The Office of the Prime Minister by its Notification dated 5-6-2000 specifically instructed to remove any inconsistency/impediment in effectively implemen­ting the 30% quota reserved in favour of the freedom fighters and their children.

9. The respondent No. 1 PSC also filed supple­mentary Affidavit-in-Opposition stating that out of 12 writ petitioners 7 of them got their names struck off from the writ petition and prayed not to press the Rule in respect of these 7 petitioners. The respon­dent No. 1 stated that the petitioner Nos. 3, 7 and 8 did not submit their fathers’ freedom fighter certifi­cates rather they submitted certificates (Annexures C2, C6 and C7 to the writ petition) issued to them by the Secretary General (Admin) and the Vice-Chairman (Admin.) of the Muktijoddha Sangshad certifying to the effect that they are respectively the sons of Shahid Muktijoddha Md. Siraj Uddin, Muktijodha Md Chan Mia and Muktijoddha Sirajul Haque which were not at all wanted under clause 7 (Nua and Cha) of the advertisement. The petitioner No. 6 Mohiuddin Ahmed submitted the Mukti­joddha certificate of his father bearing the address of Noakhali District whereas in his application Form he mentioned his permanent address as of Dhaka Cantonment, Dhaka. The petitioner No. 11 Helana Akter submitted the Muktijoddha certificate of his father late Habibur Rahman Bhuiyan whereas she stated her father’s name in the application Form as Mohammad Habibur Rahman.

10. The petitioner Nos. 3 and 11 filed an Affidavit-in-Reply to the Supplementary Affidavit-in-Opposition filed on behalf of the respondent No. 1 PSC. The petitioner No. 3 already submitted a certificate issued to him by the appropriate authority, which at the relevant time was certified by the Muktijoddha Sangshad stating that he was the son of a Muktijoddha. The petitioner No. 3 also submitted to the respondent No.1 PSC a copy of the freedom fighter certificate issued on 19-2-2001 in the name of his father duly signed by the Mukti­joddha Sangshad Chairman and countersigned by the then Prime Minister. The petitioner No. 3 also attempted to submit a copy of the Freedom Fighter Certificate issued by the Ministry of Liberation War Affairs which was by then the only authority for the issuance of such certificates but the respondent No. 1 PSC most arbitrarily refused to accept the last certificate despite its Amended Notice for the 23rd BCS Psychological Examinations (Annexure T) which stated that the certificates issued by the afore­said Ministry should be submitted at the time of the Viva-Voce Examination. The petitioner No. 6 Mohiuddin Ahmed submitted Freedom Fighter Certificate of his father Siraj Uddin of Noakhali but he stated his permanent address in the application Form as of Dhaka Cantonment, Dhaka. It is asserted that there is no provision anywhere in the application form or in the guidelines requiring that the permanent address of the applicant should be the same as that of his father. The petitioner Nos. 7 and 8 submitted their fathers’ freedom fighter certificates (Annexure-C series) issued to them by the Secretary General (Admin) and the Vice-Chairman (Admin) of the Muktijoddha Sangshad certifying to the effect that they are the sons of Muktijoddha Md. Chan Mia and Muktijoddha Sirajul Haque respectively. Subsequently, they attempted to submit the Freedom Fighter Certifi­cates issued by the Ministry of Liberation War Affairs (Annexure-F6) but the respondent No. 1 PSC most arbitrarily refused to accept the same. With regard to the petitioner No. 11 Helana Akhter, it is stated that the expression ‘Bhuiyan’ being in the nature of a title, her father had chosen not to use it as part of his name. But the Muktijoddha Sangshad and the Ministry of Liberation War Affairs both included the family title of her father’s name in the certificates. But it was not contended that Habibur Rahman Bhuiyan is not the father of the petitioner No. 11. In the circumstances, the respondent No. 1 PSC could have scrutinised the petitioner No. 11 ‘s documents at the time of Viva-Voce Examination to decide whether she was the daughter of the afore­said Muktijoddha and there was no ground whatsoever for excluding the petitioner No. 11 from the recruitment process. The respondent No. 1 PSC has not carried out its constitutional responsibilities in this matter, refusing to give reasons at all for its own arbitrary actions in excluding the names of the petitioners providing an alleged ground for such exclusion for the first time in the Affidavit-in-Opposition filed in 2005 and thereafter, by amending that he has taken a new ground which is palpably incorrect. It is manifestly evident from the said ‘Amended Notice’ (Annexure T) that the respondent No. 1 had clearly represented that the freedom fighter certificates issued by the Ministry of Liberation War Affairs would be accepted in support of the applications for the 23rd BCS (Spe­cial) Examination, 2000 and that the impugned notice and subsequent belated justifications were never notified to the petitioners, denying them of the opportunity to appear at the Viva-Voce Examina­tion on various false and baseless grounds are clearly malafide and without lawful authority. The respondent No. 1 PSC failed to ensure fairness in the proceeding in excluding the petitioners from Viva-Voce Examinations in which they had a right to be called for pursuant to Rule 22 of the BCS Rules 1982, and, as such, the respondent No. 1 acted arbitrarily and without lawful authority.

11. At the very outset Ms Sara Hossain, the learned Advocate for the petitioners, submits that out of 12 petitioners 7 petitioners do not press the Rule as they have opted for nonprosecution and, as such, she does not press the Rule on behalf of peti­tioner Nos. 1, 2, 4, 5, 9, 10 and 12 rather, she advances the argument on behalf of the petitioner Nos. 3, 6, 7, 8 and 11. Ms Sara Hossain then submits, that the impugned order issued by the respondent-PSC is arbitrary, malafide and without lawful authority in excluding the registration num­bers of the 292 candidates including the petitioners who have passed the preliminary objective test, written examination and psychological written examination of 23rd BCS (Special) Examination 2000 and, as such, the same is liable to be declared to have been made without lawful authority. Ms Sara Hossain has referred to the Ministry’s Circular dated 31-12-1997 (Annexure-J), Circular dated 24­3-1999 (Annexure-K), Circular dated 26-2-2002 (Annexure-L), Circulars dated 16-4-2002 and 8-5­2002 (Annexures-M & N), Circular dated 7-6-1999 (Annexure-O) and Circular dated 5-6-2000 (Annexure-Q) and submits that having regard to the policy decision of the Government for promoting the welfare of the freedom fighters and their child­ren, the Office of the Prime Minister by its Notification dated 5-6-2000 specifically instructed to remove any inconsistency/impediment in effec­tively implementing the 30% quota reserved in favour of the freedom fighters and their children and that the Government had issued various Notifica­tions at different times so that merely on flimsy grounds freedom fighters and their children should not be deprived of the benefit of the 30% quota reserved in their favour. She contends that the respondent No. 1 PSC arbitrarily and for collateral purpose at the behest of some vested quarters excluded the names of the petitioners from the impugned notice inviting Viva-Voce Examination of 23rd BCS (Special) Examination, 2000 without any valid reason whatsoever and, as such, the impugned memo dated 25-6-2003 in excluding the registration numbers of the petitioners is liable to be declared to have been made without lawful authority. She submits that the respondent No. 1 having received the petitioners’ application for 23rd BCS (Special) Examination, 2000 with the provisional certificates issued by the Muktijoddha Sangshad as contained in Annexure-C series and after scrutiny respondent No. 1 PSC being satisfied as to the correctness of the required documents issued Admit Cards bearing registration numbers of the valid candidates including the petitioners as at the relevant time the issuance of the original certificates were in the process. The learned Advocate for the petitioners contends that the petitioners on the oral instructions of the respondent No. 1 PSC obtained provisional certificates issued by the Muktijoddha Sangshad as evidenced by Annexure-G series excepting Annexures-C3, C5 and C1O and the respondent No. 1PSC being satisfied as to qualifications and docu­mentations issued Admit Cards to the petitioners along with 292 candidates fixing 23-3-2001 for Preliminary Objective Examination and that the respondent No. 1 PSC published in the daily newspapers the results of the said examination containing the registration numbers of successful candidates including the petitioners who passed the said examination as evidenced by Annexure-E and whereupon the petitioners were allowed to sit for the written examinations the result of which was published in the daily Ittefaq on 23-10-2001 showing the petitioners among the successful candi­dates as evidenced by Annexure-E(l) and after the petitioners’ successful completion of the psycholo­gical written examination, the exclusion of the petitioners’ registration numbers from notice dated 25-6-2003 (Annexure-A) is liable to be declared to have been made without lawful authority. She also submits that in view of the successful completion of their preliminary objective test, written examination and psychological written examination they should have been definitely called for the Viva-Voce Examination but the respondents in violation of Rule 22 most arbitrarily excluded the registration numbers of the petitioners from the impugned notification and, as such, the impugned action taken by the respondents are declared to have been taken without lawful authority and to be of no legal effect so far as it relates to the petitioners. It is contended on behalf of the petitioners that the aforesaid 292 candidates including the petitioners successfully attended the psychological written examination held on 16-6-2003 which was required prior to appearing before the Viva-Voce Examination and accordingly, 292 candidates including the petitioners became automatically qualified to appear at the Viva-Voce Examination and, as such, exclusion of the petitioners from the impugned notice dated 25-6­2003 inviting the candidates to appear at the Viva-Voce Examination is without lawful authority and is of no legal effect. It is also contended on behalf of the petitioners that respondent PSC having accepted the Application Forms with the provisional certificates issued by the Muktijoddha Sangshad Central Command Council issued Admit Cards and allowed them to sit for the preliminary objective tests, written examinations and then psychological written examinations and thereby the petitioners were given the impression that the respondent PSC would allow the petitioners to appear at the Viva-Voce Examination but the exclusion of the petitioners’ registration numbers from the impugned notice inviting candidates for Viva-Voce Examina­tion is arbitrary and malafide and the respondent No. 1 PSC is estopped from refusing to accept the provisional certificates submitted by them and cannot act to the detriment of the petitioners. The learned Advocate for the petitioners also submits that though it is stipulated in the advertisement that the respondent PSC may cancel the Application Forms at any stage but this power of PSC is not unfettered in view of the fact the respondent No. 1 PSC having accepted the application Forms with the provisional certificates allowed the petitioners to sit for 3 stages of the Examinations and did not stop them but at a belated stage after completion of almost all of the recruitment examinations issued the impugned order and, as such, the respondent PSC is estopped to exclude the names of the petitioners from the impugned order. In support of her contention she has referred to the decisions reported in 6 BLC 681 and 7 BLC (AD) 144 and submits that the petitioners have a legitimate expectation to be considered for sitting in the Viva-voce Examination conducted by the respondent No. 1 PSC and in the facts and circumstances of the case the respondent PSC having allowed the petitioners to appear in the public examinations at 3 different stages which they had successfully passed, the respondent PSC is not legally entitled to exclude the registration numbers of the petitioners from the impugned notice. It is also the contention of the petitioners that the impugned notice has been issued in violation of the principles of natural justice and the petitioners have been denied of their fundamen­tal rights to sit for the Viva-voce Examinations and, as such, the Rule is liable to be made absolute.

12. Mr. Fida M Kamal, the learned Additional Attorney-General, appearing for the respondents, submits that there is no illegality in the impugned order in excluding the registration numbers of the petitioners as they failed to submit complete Appli­cation Forms with the required documents, namely, certificates issued by the Muktijoddha Sangshad, the appropriate authority. He has then referred to Clause 7(Cha) of the advertisement inviting applica­tions of 23rd BCS (Special) Examination, 2000 and submits that since the petitioners failed to submit their parents’ freedom fighter certificates in original along with the Application Forms, the respondent PSC rightly excluded their names from the impugned notification (Annexure-A) and, as such, no interference is called for by this Hon’ble Court and the Rule is liable to be discharged. The learned Additional Attorney-General has referred to the Advertisement of 23rd BCS (Special) Examination, 2000, Instructions to the Candidates and submits that the PSC is competent to cancel any application at any stage even after the examination, if any irregularity is revealed and because of huge number of candidates involved it is the practice of the PSC to make the final scrutiny as per Clauses 11 and 12 of the Instructions to the PSC candidates. He con­tends that the question of mala fide or arbitrariness does not arise. He also contends that the application Forms submitted by the petitioners to the respon­dent PSC had many irregularities and anomalies and, as such, the respondent No. 1 PSC had no other alternative but to exclude the petitioners’ registra­tion numbers from the impugned notice calling for Viva-Voce Examination. Since out of the 12 peti­tioners 7 opted for non-prosecution, the learned Additional Attorney-General only advances arguments against the petitioner Nos. 3, 6, 7, 8 and 11 who are pressing the Rule. He submits that the petitioner Nos. 3, 7 and 8. did not submit their fathers’ freedom fighter certificates rather, they sub­mitted certificates issued by an incompetent authority and, as such, the respondent No. 1 PSC having found those applications not in conformity with clause 7(Cha) of the advertisement, rightly rejected the same as they were not eligible candi­dates of the 23rd BCS (Special) Examination, 2000. The learned Additional Attorney-General submits that petitioner No.6 though submitted an original certificate of freedom fighter but the address in his father’s freedom fighter certificate is of Noakhali and that of his application form is of Dhaka Canton­ment, Dhaka and thereby he put his position contradictory with the instruction of the Advertise­ment and the Rules and, as such, no interference is called for by this Hon’ble Court. He finally submits that the petitioner No. 11 submitted freedom fighter certificate of her father late Md. Habibur Rahman Bhuiyan whereas she stated her father’s name in her application Form as Md. Habibur Rahman and accordingly, the respondent No. 1 PSC rightly found the application forms not in order in violation of clause 7(Cha) of the advertisement and, as such, no illegality is committed by the respondent No. 1 in excluding the names of the petitioners from the impugned notice and the Rule is liable to be discharged.

13. Mr. Rokanuddin Mahmud, learned Counsel appearing on behalf of the added respondent No. 5, submits that respondent No.5 having passed the psychological written examination finally appeared at the Viva-voce Examination on 6-7-2003 and, as such, he is entitled to get his result of PSC Exami­nation published and accordingly, the respondent No. 1 PSC be directed to publish the result of 23rd BCS (Special) Examination, 2000 including the result of the respondent No. 5.

14. In the course of his submission Mr. Mah­mud further argues that since the PSC is a constitu­tional body with the responsibility to conduct tests and examinations for the selection of suitable persons for appointment in the service of the Republic they must act fairly. He submits that the respondent No. 1 PSC having accepted the docu­ments submitted by the petitioners allowed them to sit for the preliminary objective test which they had passed and then allowed them to sit for the written examination and finally, the Psychological Written Examination and thereby a legitimate expectation has arisen in the minds of the petitioners and, as such, the respondent No.1 PSC, in all fairness, should have allowed the petitioners to appear at the Viva voce Examination. He finally submits that the very purpose of 23rd BCS (Special) Examination, 2000 is for the filling up of 709 vacant posts of different Cadres of BCS from the category of freedom fighters and their children and in that view of the matter, in all fairness, the respondent No. 1 PSC should have allowed the petitioners along with other candidates to appear at the Viva voce Exami­nation and, as such, the Rule is liable to be made absolute and the result of the examination of the candidates including the respondent No. 5 be published expeditiously. We have perused the writ petition, Supple­mentary Affidavit filed on behalf of the petitioners, Affidavit-in-Opposition and Supplementary Affida­vit-in-Opposition filed on behalf of the respondent No. 1 and Affidavit-in-Opposition filed on behalf of the added respondent No.5 and the applications filed by the petitioner Nos. 1,2,4,5,9,10 and 12 for striking out their names.

15. It appears that the respondent No. 1 published the Notification of 23rd BCS (Special) Examination, 2000 dated 30-11-2000 on 8-12-2000 (Annexure-B) inviting applications from freedom fighters and the children of freedom fighters and shahid freedom fighters to fill up 709 vacant posts of different cadres of Bangladesh Civil Service (BCS). In this case out of the 12 petitioners, as we have already noticed, petitioner Nos. 1, 2, 4, 5, 9, 10 and 12 have opted for non-prosecution. Ms Sara Hossain, the learned Advocate appearing on behalf of the petitioners, submits that the Rule in respect of petitioner Nos. 3, 6, 7, 8 and 11 be made absolute but she does not press the Rule in respect of the petitioner Nos. 1,2, 4, 5, 9, 10 and 12 and other candidates in a representative capacity. In view of the aforesaid submissions the Rule in respect of the petitioner Nos. 1,2,4, 5, 9, 10 and 12 and other can­didates excluding the petitioner Nos.3,6,7,8 and 11 should be discharged for non-prosecution. In the circumstances, we would like to consider the respective positions of the petitioner Nos. 3, 6, 7, 8 and 11. The contentions of the respondent PSC against the petitioner No. 3 Md. Faizur Rahman Khan, petitioner No. 7 Farid Ahmed and petitioner No. 8 Md. Jamaluddin are that they did not submit their fathers’ certificates of freedom fighters issued by the proper authority rather they submitted the certificates issued by the Secretary General (Admin) and Vice-Chairman (Admin) of Muktijoddha Sang­shad Central Command Council who are not the proper authority. The respondent No. 1 PSC has also contended that these 3 petitioners failed to comply with the provisions of Clause 7(Cha) of the Adver­tisement inviting applications of 23rd BCS (Special) Examination,2000 and, as such, their three applications were not in accordance with law and as per the requirement of the Advertisement and accordingly, their names were rightly excluded from the impugned notice dated 25-6-2003 for appearing in the Viva-Voce Examination.

16. From different notifications issued by the Government on 24-3-1999 (Annexure-K), 7-6-1999 (Annexure-O), 6-12-1999 (Annexure-P), 5-6-2000 (Annexure-Q), 16-4-2002 (Annexure-M) and 8-5­2002 (Annexure-N) we have noticed that the Government has taken up policy decision for 30% quota reserved in favour of the freedom fighters and children of freedom fighters/shahid freedom fighters and for effective implementation of the Government policy decision. In furtherance of this noble object, the Government has taken a Special Welfare Scheme to hold 23rd BCS (Special) Examination, 2000 for recruitment of the freedom fighters, the children of freedom fighters and shahid freedom fighters to fill up 709 vacant posts of different cadres of BCS. The Public Service Commission (PSC) in its notification of 23rd BCS (Special) Examination, 2000 dated 30­11-2000 published in the Bangladesh. Gazette on 4­1-2001 (Annexure-2) invited applications in the following terms :

“???????? ????? ????????? ?????????? ????????? ??? ?? ????? ??? ??????????? ???? ??.??.??. ???????? ??????? ?????? ???? ???????? ?????? ???? ????? ????????? ???? ???? ?????? ???????????? ? ????????????/???? ??????????????? ?????/ ???????? ???? ???? ????? ???? ????? ????????”

17. The function of the PSC is to conduct examinations for selection of suitable persons for appointment in the service of the Republic as per Article 140 of the Constitution and to advise the President on any matter in which the commission is consulted in connection with its function. Accordingly, in the instant case, the PSC is to select suitable persons from amongst the freedom fighters and the children of freedom fighters and shahid freedom fighters in the 23rd BCS (Special) Exami­nation, 2000 to fill up 709 vacant posts of different cadres of the civil service of the Republic and at the relevant time since the Muktijoddha Sangshad as the competent authority issued provisional certi­ficates and the respondent No. 1 PSC having been satisfied with those certificates issued admit cards to the petitioners for sitting in the said examination and allowed them to sit for the preliminary objective test the results of which were published in the National Dailies with the registration numbers of successful candidates including the petitioners (Annexure-E) who were qualified to appear in the written examination. Then the petitioners success­fully passed the written examination the results of which were published by the respondent No. 1 PSC in the Daily Ittefaq on 23-10-2001 as evidenced by Annexure-E(l) and thereafter, they successfully attended the Psychological Written Examination which was a prerequisite to appear at the Viva-Voce Examination on 16-6-2003 after lapse of 2 1/2 years. The successful completion of the Psychological written examination is a prerequisite to appear at the Viva-Voce Examination as per clause 15 of the Advertisement (Annexure-2) and Rule 22 of the BCS (Direct Recruitment) Rules 1982. In the instant case it appears that the respondent No. 1 PSC accepted the provisional certificates issued by the Secretary General (Admin) and Vice-Chairman (Admin) of the Central Command Council of Freedom Fighters Association (Muktijoddha Sang­shad) certifying that they are the children of freedom fighters and shahid freedom fighters and allowed them to sit for 3 examinations in different stages of the 23rd BCS (Special) Examination, 2000 and published the results as evidenced by Annexure-E and El. Rule 22 envisages that a candidate quali­fied in the written examination shall be required to appear at the Viva-Voce Examination. We have noticed that the petitioners have qualified in the written examination. As per Rule 22 of the BCS (Age, Qualification and Examination for Direct Recruitment), Rules, 1982 the respondent No. 1 PSC should have, in all fairness, allowed the petitioners to sit for the Viva voce Examination. According to the Advertisement Instructions and the Rules, 1982, if any discrepancy arises, at any stage, definitely the respondent PSC can take any step to remove the same. In the instant case, it appears from the foregoing discussions that there is no discre­pancy as the respondent-PSC having been satisfied as to the competency of the petitioners issued Admit Cards and allowed them to appear at three levels of examinations. But it appears that, without informing the petitioners or giving them any opportunity to show cause as to why their registration numbers should not be excluded from the impugned notice, the respondent PSC excluded the same therefrom and thus the respondent PSC violated the principles of natural justice and fundamental rights of the petitioners. It has been contended on behalf of the respondent PSC that the permanent address of the petitioner No.6 mentioned in his application form is different from that of his father’s freedom fighter certificate. On perusal of Annexure 8(a) it appears that the petitioner No. 6 Mohiuddin Ahmed in his Application Form mentioned 311, West Manikdi, Dhaka Cantonment, Dhaka-1206 as his present and permanent address whereas his father’s address as it appears from the freedom fighter certificate [Annexures C(5) and F(5)] is of Barahipur, Police Station Sudharam, District Noakhali. It is not the case of the respondent PSC that freedom fighter Sirajuddin Ahmed, father of the petitioner No.6, was not a permanent resident of Noakhali or he was not the father of the petitioner. It is the contention of the respondent PSC that his permanent address is not the same as that of his father as mentioned in the freedom fighter certificate. We are of the view that this contention at a belated stage has no basis because the respondent No.l PSC does not dispute that the said freedom fighter was not the father of petitioner No.6 and the only objection raised by the respondent No. 1 PSC is that his permanent address in his application form is not the same as that of his father’s freedom fighter certificate. It is true that the permanent address of the petitioner No.6 is different from that of his father. There is no violation of the requirements of the Advertisement of the 23rd BCS (Special) Examination, 2000 and of the provisions of the BCS (Direct Recruitment) Rules, 1982. The aforesaid contention of the PSC cannot be a legal ground in excluding his registration number from the impugned order. According to Rule 9 of the Rules of 1982, every candidate shall give his/her mailing address in the application form and shall intimate to the Secretary of the Commission of any change thereto. It appears that the petitioner No.6 in compliance with Rule 9 has stated his present and permanent address which is nothing but his mailing address.

18. The purpose of the present policy decision is for the welfare and benefit of the freedom fighters and the children of the freedom fighters and shahid freedom fighters. We have already noticed from the Government circulars and notifications marked as Annexures-‘O’ to ‘Q’ wherein it has been stated that the main purpose is to ensure the filling up of 30% quota reserved for the freedom fighters or their children but they should not be deprived of their rights on flimsy grounds. The circular dated 5-6­2000 (Annexure-Q) issued by the Prime Minister’s Secretariat reads as follows :

“?????????????? ???????? ?????

?????????????? ????????

???? ?????? ??.??.?.?.?.??.????-??

??????????????, ???????

? ???, ???? ??

????? ??????/???-??????/?????????/???????????? ??????????????? ??% ??????? ???? ???????????? ? ???? ??????????????? ????????? ??????? ?????????? ?????????

??????/???-??????/?????????/???????????? ??????????????? ??% ??????? ???? ???????????? ? ??????????????? ????????? ??????? ????? ???? ???? ???? ?????? ???? ???? ?????????? ??????? ????? ????????? ????? ????? ??-

?? ???????????? ? ???? ??????????????? ????????? ???? ??% ???? ??????? ???? ???? ??? ????? ???? ????????? ????? ???????? ????? ?? ???? ? ????? ????? ??? ????????? ??????? ???? ????? ???? ?????? ???? ??? ? ????? ??????? ??????? ???? ???? ????? ?? ??? ????? ??????? ???????? ??????? ???? ???? ???? ??? ? ??? ??????? ???????????? ? ???? ????????????? ????????? ???? ????????? ??% ??????? ???? ???? ???????? ?????? ???? ??? ???? ?? ? ? ???? ??????? ???? ??????? ????/??????/???????????? ??? ??????? ????? ?? ?????? ???? ??? ?

?? ? ????? ????????? ???????? ????? ???? ? ?????????? ????? ???? ???? ???????????? ????? ?????? ?????? ??? ?

????????
??????? ?”

19. The Government by the aforesaid notification decided to guarantee the implementation of the30% quota reserved for the freedom fighters and the children of the freedom fighters and shahid freedom fighters. It has been decided that if no candidate is available in a district the vacant posts of the district shall be adjusted with another district of the same Division. But if the quota cannot be filled up at the Divisional level then the same may be filled up at the national level. It is further decided that the 30% quota reserved for the freedom fighters and their children cannot be filled up by other candidates and that to ensure the filling up of the quota, if necessary, amendment of the Rules, procedure and directives should be made. So, the very purpose of this particular notification is that on any flimsy ground or technical reason the freedom fighters and the children of the freedom fighters and shahid freedom fighters should not be deprived of the 30% quota reserved in favour of them.

20. In furtherance of the aforesaid policy decision, the Government has taken a special welfare scheme for holding 23rd BCS (Special) Examination, 2000 for the recruitment of the freedom fighters and the children of the freedom fighters and shahid freedom fighters to fill up 709 vacant posts of different cadres in the service of the Republic. The very purpose of this special scheme is nothing but to acknowledge the supreme sacrifices made by the freedom fighters in the War of Liberation. The BCS (Special) Examination, 2000 is a good gesture on the part of the Government to show respect to the freedom fighters and to acknowledge the debt the nation owes to the freedom fighters for the supreme sacrifice made by them in the war of Liberation. There should not be any technical or flimsy ground to create any impediment in implementing the special scheme of the policy decision, which has been taken by the Government for the welfare and benefit of the freedom fighters and the children of freedom fighters/shahid freedom fighters.

21. In a democratic society it is essential to have an independent public service commission free from the control of the Government. Part IX of Chapter II of the Constitution envisages provisions in respect of Public Service Commission. Article 137 of the Bangladesh Constitution provides that provision shall be made by law for establishment of one or more Public Service Commissions for Ban­gladesh, each of which shall consist of a Chairman and such other members as shall be prescribed by law. The Chairman and the Members of the Election Commission before entering upon the office shall take oath to bear true faith and allegiance to Bangla­desh and to preserve, protect and defend the Consti­tution. The functions of the Public Service Commis­sion as described in Article 140 of the Constitution are to select suitable persons by conducting tests and examinations for appointment in the service of the Republic and to advise the President on any matter on which the commission is connected or on any matter connected with its function. In the instant case, the respondent No. 1 PSC in selecting suitably persons should have decided whether the petitioners are the real children of the freedom fighters or not.

22. On perusal of the freedom fighter certificate issued by the respondent No.4 in favour of the father of the petitioner No. 6 (Anneuxre F-5), we do not find any illegality or irregularity in the issuance of the said certificate as the same has been issued in accordance with the provisions of Memos dated 26-2-2002, 16-4-2002 and 8-5-2002. The name of the father of the petitioner No. 11 according, to writ petition, is Md. Habibur Rahman but the name mentioned in the freedom fighter’s provisional certificate issued by the Ministry of Liberation War Affairs (AnnexureF-8) and the certificate issued by the Muktijoddha Sangshad -10) shows that the name of the freedom fighter is Md. Habibur Rahman Bhuiyan and the address in both the certificates and that of the application form (Annexure 8-D) is the same i.e. Village Naoga, Police Station Debidar, District Khulna. So, there is no difficulty in identifying the father of the peti­tioner No. 11 who is a resident of the aforesaid village within the district of Khulna. Though the family title ‘Bhuiyan’ is missing after the name of Md. Habibur Rahman, father of petitioner No. 11, in his application form yet, on a careful scrutiny of the certificates and the address stated therein and also the permanent address stated in the Application Form there is no difficulty in identifying the father of the petitioner No. 11 i.e. the freedom fighter Md. Habibur Rahman Bhuiyan, is the same person whose name has been stated in the application form of the petitioner No. 11 as her father, Md. Habibur Rahman. The facts and circumstances of the unreported decision in Writ Petition No. 2242 of 2004 referred to us by the learned Additional Attorney-General is distinguishable from the facts and circumstances of the present case. So, the aforesaid unreported decision has no manner of application in the present case.

23. We have already noticed that Ms. Sara Hossain, the learned Advocate for the petitioners, does not press the Rule on behalf of the petitioner Nos. 1, 2,4, 5,9, 10 and 12 since they have prayed for non-prosecution. She also does not press the Rule on behalf of the other excluded candidates except the petitioner Nos. 3, 6, 7, 8 and 11. In that view of the matter, the Rule is discharged for non-prosecution so far as these 7 petitioners and other excluded candidates except the aforesaid five petitioners. In the circumstances, we have to consider the prayer of the petitioner Nos. 3, 6, 7, 8 and 11. It appears that all these five petitioners in response to the adver­tisement published by the respondent No. 1 PSC (Annexure B) submitted their respective applica­tions in prescribed Form along with requisite certi­ficates including provisional certificates issued by the Muktijoddha Sangshad Central Command Coun­cil as the original certificates could not be issued at that time in consequence of which the respondent PSC advised the petitioners to file provisional certificates. The petitioners, on the advice of the respondent PSC, submitted the said documents which were available at the relevant time. The respondent PSC having considered the petitioners’ applications after proper scrutiny found them to be in order and accordingly, they issued Admit Cards and allowed them to sit for the preliminary objective test and published the results of the 23rd BCS (Special) preliminary objective test in the national daily newspaper (Annexure E) showing the registra­tion numbers of 1231 successful candidates including the petitioners who have been found to be qualified to appear in the written examination. The petitioners along with other successful candidates appeared in the written examination held on 21-4­2001 and successfully passed the written examina­tion the result of which was published in the Daily Ittefaq on 23-10-2001 (Annexure E-l). The afore­said 292 candidates including the petitioners successfully attended the psychological written examination on 16-6-2003 and thus the 292 candidates including the petitioners were automa­tically qualified to appear at the Viva-Voce Examina­tion. Rule 22(1) of BCS (Age, Qualification and Examination for Direct Recruitment) Rules, 1982 provides that the candidates qualifying in the written examination shall after announcement of the result be required to appear in the psychological test and Viva-Voce Examination. Rule 22(2) provides that each candidate shall be interviewed by a Board to be constituted by the PSC. Sub-rule (3) of Rule 22 provides that the candidates called for Viva-voce Test shall be required to undergo psychological test to assess their intelligence, personal qualities and traits of character with special regard to their aptitude for the post. In the instant case it

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