Secretary, Ministry of Government of Bangladesh Vs. Md. Masdar Hossain & others

Appellate Division Cases

(Civil)

PARTIES

Secretary, Ministry of Government of Bangladesh, Bangladesh Secretariat, Dhaka ……………………Appellant

-VS-

Md. Masdar Hossain & others ………………….. Respondents

JUSTICE

Mustafa Kamal CJ

Latifur Rahman J

Bimalendu Bikash Roy Choudhury J

Mahmudul Amin Choudhury J

JUDGEMENT DATE: 2nd December 1999

Articles 27, 29, 115, 116, 116A, 133, 146, 152(1) of the Constitution

Bangladesh Civil Service (Re-organisation) Order, 1980

The Services (Re-organisation and Conditions) Act, 1975 (Act No. XXXII of 1975)

The Services (Grade, Pay and Allowances) Order, 1977

All India Judges Assoction and others Vs. Union of India and others, (1993) 4 SCC 288

Kudrat-E-Elahi Panir Vs. Bangladesh, 44 DLR(AD)319. Sindh Vs. Sharaf Faridi, PLD 1994 (SC) 105.

How far the constitution of Bangladesh has actually secured the separation of the judiciary from the executive organs of the State and whether the Parliament and the executive have followed the constitutional path are the crux issues that fall to be determined in this appeal …………………(1)

(1) The term B.C.S. (Judicial) is a fundamental misconception as judicial service is

recognised and treated separately in Articles 115, 116 and 116A of the Constitution and defined separately in Article 152(1) of the constitution. The subordinate courts are part and parcel of Part VI of the Constitution as a separate and independent entity and cannot be a part of the civil, administrative or executive service of the country. The definition of the “service of the Republic” in Article 152(1) of the Constitution is broad and includes defence and judgicial services, but that does not mean that judicial service or defence service is a part of the civil or administrative service. The definition clause cannot bring judicial service within the ambit of executive or administrative service which is called Bangladesh Civil Service. Article 133 cannot be invoked for the judicial officers as there are separate provisions for them in Articles 115 and 116 of the Constitution. Judicial officers are not persons in the service of the Republic for the purpose of Article 133 and hence the Rules regarding their appointment and conditions of service cannot be framed under Article 133. It will be totally unconstitutional if the subordinate courts are tagged with or brought under the control of the executive under Part IX or any other part of the Constitution, excepting Part VI. The judicial service cannot be legally brought within the ambit of Act No. XXXII of 1975 because if it is so done it will alter the very fundamental and basic structure of the Constitution relating to separate and

independent judicial service *as contained in Part VI of the Constitution. The inclusion of the Judicial service under Bangladesh Civil Service (Re-organisation)

Order, 1980 dated 1.9.1980 as Bangladesh Civil Service (Judicial) is ultra vires the

Constitution. As the defence service is under Part IV, so is judicial service under

Part VI. In such a situation, the defence service has been correctly organised by

separate Acts and Rules and in a similar way the judicial service shall have to be

organised in accordance with the provisions of Part VI and the enactments and

rules made thereunder.

(2) The writ petitioners have come up for a declaration that the judiciary has already been separated under Part VI and that the respondents should be directed to implement and carry out the mandate of the Constitution in pursuance of Articles 109, 115,116 and 116A. In the instant case the High Court Division can direct the legislature and the executive to perform their functions which they are required to do under the Constitution. The State should provide immediately for bringing judicial service under the direct control of the High Court Division functionally and structurally and this direction was given by the High Court Division in exercise of power under Article 102(2)(a)(i) of the Constitution. The High Court Division, in its opinion, is competent to direct the respondents to make necessary Rules and/or enactment in order to enable the subordinate judiciary to function as an independent institution. Rules made under Article 115 may provide for independent Service Commission as well as independent Pay Commission for the purpose of appointment of judicial officers and magistrates performing judicial functions and for the purpose of fixing their scales and grades of pay commensurate with their

recognised status in the Constitution.

(3) For effective implementation of the provisions of Articles 115 and 116 necessary

Rules are to be framed by the President. Although Article 115 speaks of appointment, it also means terms and conditions of Service. Articles 115 and 116 require that not only recruitment Rules but also Rules governing conditions of service of the judicial officers and magistrates performing judicial functions are to be made by the President. Since the rule-making power of the President is wide, unlimited and absolute, the President can make any provision under these Rules that are necessary for carrying out the purposes of separation of judiciary from the executive.

(4) For separation of the subordinate judiciary from the executive no further constitutional amendment is necessary. Article 109 of the Constitution brings subordinate courts and tribunals under the control and superintendence of the High Court Division. Necessary rule-making power has been given making the Supreme Court as the real wielder of authority in framing rules under Article 115 of the Constitution. Read with Articles 116 and 116A of the Constitution the subordinate judiciary has already been separated from the executive in the constitutional scheme. In the Fundamental Principles of State Policy Article 22 of the Constitution provides that the State shall ensure the separation of the judiciary from the executive organs of the State. This principle shall be applied by the State in the making of laws and Article 22 was not meant for beautifying the constitution as an ornament. The will of the people was entitled to be implemented within a reasonable time and the period of 25 years from independence is definitely a reasonable period to implement the cherished will and desires of the people. The Supreme Court alone shall have overall control, supervision and management over the subordinate courts and over magistrates exercising judicial functions and the executive will have no control, supervision and management over them in any manner whatsoever.

(5) Judicial officers do not come within the jurisdiction of the Administrative Tribunal as their service conditions ate governed and determined by/or under Chapter II of Part VI of the Constitution. Courts or Judges are not subordinate to the said Tribunal and hence Judges or the Courts are not to seek relief from the Administrative Tribunal.

(6) Some unreasonable conditions were attached with the pay scales of the Subordinate Judges, Additional District and Sessions Judges and District and

Sessions Judges which were not attached in respect of pay scales and allowances of

other Bangladesh Civil Service Cadre holders. The impugned orders Annexures-F & F(l) so far as the same relate to the writ petitioners and other judicial officers, are

ultra vires the Constitution being violative of Articles 27 and 29 of the Constitution.

The benefits given by order dated 8.1.1994 had been abruptly and arbitrarily taken

away by Annexures-F & F(l) without assigning any reason and the earlier order

dated 8.1.1994 was acted upon and the same created a vested right in favour of the

judicial officers. Annexure-E dated 8.1.1994 shall stand valid and shall continue

till new pay scales are fixed in future by framing necessary enactment and/or rules

pursuant to the impugned judgment.…………………(6)

Judges are appointed on the doctrine of good behavior, but if they are treated to be

in the service of the Republic then they will hold office during the pleasure of the

President under Article 134 which strikes at the very root of the independence of the

judiciary ………………..(34)

We shall consider Article 114 first. This Article provides that in addition to the

Supreme Court such courts may be established by law as are subordinate thereto.

The constitutional implication of this Article is that the subordinate judiciary, unlike the Supreme Court of Bangladesh, is not a creature of the Constitution but of

law. Its status is not the same as that of the Supreme Court. The Constitution has

guaranteed the independence of the Judges of the Supreme Court in exercise of their judicial functions by making some provisions in the Constitution …………(37)

The President may be order or by making rules, as the case may be, make provision

for certain matters until the Parliament enacts to that effect. As and when laws are

made by Parliament, either the Presidential orders or rules go out of existence or they exist to the extent not in conflict with laws made by the Parliament. This is called the contingent rule-making power of the President and examples of this power are to be found in our Constitution in Articles 62(2), 75(l)(a), 79(3), 85,127(2),

128(3), proviso to Article 133, Articles 138(2) and 147(l)(b) ……………(39)

The Constitution also conferred on the President the direct, primary and plenary

power of framing rules which even the Parliament cannot frame and which have

an immediate legislative effect ……………….(41)

A plenary rule-making power of the President has the same legislative effect as

an Act of Parliament. Nothing should be read or implied or construed in any provision of the Constitution which widens or narrows the law-making power of any

other organ, because any such interpretation will pro tanto correspondingly narrow

or widen the vested law-making plenary power of the Parliament ………….(43)

Mujibur Rahman (Md.) Vs. Government of Bangladesh, 44 DLR (AD) 111 Para 71,

“the Supreme Court and the subordinate courts are the repository of judicial power

of the State.” …………(48)

walter Valente Vs. Her Majesty the Queen, (1985) 2 R.C.S., the Supreme Court of

Canada held that “the concepts of “independence” and “impartiality”, although

obviously related, are separate distinct values or requirements. “Impartiality” refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. “Independence” reflects or embodies the traditional constitutional value of judicial independence and connotes not only a state of mind but also a status or relationship to others particularly to the executive branch of government that rests on objective conditions or guarantees…………….(48)

“The judicial service is not service in the sense of employment. The Judges are not

employees. As members of the judiciary, they exercise the sovereign judicial power

of the State. They are holders of public offices in the same way as the members of

the council of ministers and the members of the legislature. When it is said that in a

democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The Council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the

Legislators and the Judges and not between the Judges and the administrative executive. The Judges, at whatever level they may be, represent the State and its

authority unlike the administrative executive or the members of the other services.

The members of the other services, therefore, cannot be placed on a par with the

members of the judiciary, either constitutionally or functionally. Therefore, while

determining the service conditions of the members of judiciary, a distinction can be

made between them and the members of the other services.” ………….(50)

The word “control” in Article 116, read with Article 115, includes the rule-making

power of the President in consultation with the Supreme Court in respect not only of

posting, promotion, grant of leave and discipline but also of the entire gamut of terms and conditions of service of persons employed in the judicial service and magistrates exercising judicial functions. Syed Ishtiaq Ahmed has additionally argued that 109 of the Constitution having provided that the High Court Division shall have superintendence and control over all Courts and tribunals subordinate to it, the word “control” used in both Articles 109 and 116 has to be reconciled……(54)

” Security of tenure because of the importance traditionally attached to it, is the first of the essential conditions of judicial independence for purposes of section 11(d) of the Charter. The essentials of such security are that a Judge be removed only for cause, and that cause be subject to independent review and determination by a process at which the Judge affected is afforded a full opportunity to be heard……(69)

Absence of financial autonomy has an adverse impact on the independence of the

judiciary as an institution.” ……………..(74)

Separation of the subordinate judiciary from the executive no further constitutional

amendment is necessary. It is already there in the Constitution and the Fundamental Principles of State Policy in Article 22 merely says that “the State shall ensure the separation of the judiciary from the executive organs of the State”………….. (85)

(1) It is declared that the judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with the civil executive and administrative services.

(2) It is declared that 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 rules regulating their suspension and dismissal but Article 115 does not contain any rule-making authority with regard to other terms and conditions of service and that Article 133 and Article 136 of the

Constitution and the Services (Reorganisation and Conditions) Act, 1975 have no application to the above matters in respect of the judicial service and magistrates

exercising judicial functions. (3) It is declared that the creation of B.C.S. (Judicial) cadre along with other B.C.S. executive and administrative cadres by Bangladesh Civil Service (Reorganisation) Order, 1980 with amendment of 1986 is ultra vires the Constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service.

(4) The appellant and the order respondents to the writ petition are directed that

necessary steps be taken forthwith for the President to make Rules under Article 115 to implement its provisions which is a constitutional mandate and not a mere

enabling power. It is directed that the nomenclature of the judicial service shall

follow the language of the Constitution and shall be designated as the Judicial Service of Bangladesh or Bangladesh Judicial Service. They are further directed that either by legislation or by framing Rules under Article 115 or by executive Order having the force of Rules a Judicial Services Commission be established forthwith with majority of members from the Senior Judiciary of the Supreme Court and the subordinate courts for recruitment to the judicial service on merit with the objective of achieving equality between men and women in the recruitment.

(5) It is directed that 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 magistrates exercising judicial functions keeping in view the constitutional status of the said service.

(6) The impugned orders in the writ petition dated 28.2.94 and 2.11.95 are declared

to be ultra vires the Constitution for the reasons stated in the judgment. The appellant and the other respondents to the writ petition are directed to establish a separate Judicial Pay Commission forthwith as a part of the Rules to be framed under Article 115 to review the pay, allowances and other privileges of the judicial service which shall convince at stated intervals to keep the process of review a continued one. The pay etc. of the judicial service shall follow the recommendations of the Commission.

(7) It is declared that in exercising control and 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.

(8) The essential conditions of judicial independence in Article 116A, elaborated in the judgment, namely, (1) security of tenure, (2) security of salary and other benefits and pension and (3) institutional independence from the Parliament and the Executive shall be secured in the law or rules made under Article 133 or in the executive orders having the force of Rules.

(9) It is declared that the executive Government shall not require the Supreme Court of Bangladesh to seek their approval to incur any expenditure on any item from the funds allocated to the Supreme Court in the annual budgets, provided the expenditure incurred falls within the limit of the sanctioned budgets, as more fully explained in the body of the judgment. Necessary administrative instructions and financial delegations to ensure compliance with this direction shall be issued by the Government to all concerned including the appellant and other respondents to the writ petition by 31.05.2000.

(10) It is declared that the members of the judicial service are within the jurisdiction

of the administrative tribunal. The declaration of the High Court Division to the opposite effect is set aside.

(11) The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further constitutional amendment is necessary is set aside, if the Parliament so wishes it can amend the Constitution to make the separation more meaningful, pronounced, effective and complete.

(12) It is declared that until the Judicial Pay Commission gives its first recommendation the salary of Judges in the judicial service will continue to be governed by status quo ante as on 8.1.94 vide paragraph 3 of the Order of the same date and also by the further directions of the High Court Division in respect of Assistant Judges and Senior Assistant Judges. If pay increases are effected in respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation the members of the judicial service will get increases in pay etc. commensurate with their special status in the Constitution and in conformity with the pay etc. that they are presently receiving …………………….(87)

Article 22 of the Constitution provides that the State shall ensure the separation of judiciary from the executive organs of the State.

The separation of the judiciary is essential to keep up the total independence of all subordinate Courts from the lowest rung to the highest.

An independent judiciary is the conscience-keeper of the State …………….(89)

Harmonious interpretation must be given to all relevant provisions of the constitution

Members of judicial service and magistrates exercising judicial functions of the

State cannot be deprived of the benefit of fundamental Rights as contemplated in

articles 27, 29 and 135 of the Constitution which speaks of a procedural safeguard

and the benefit of a second show cause notice. In that view of the matter, I hold

that the judicial officers and magistrates exercising judicial functions are amenable

to the benefits as provided in Article 135 and they are subject to the jurisdiction of

the Administrative Tribunal …………….(98)

Civil Appeal No. 79 of 1999 (From the judgment and order dated 7.5.1997 passed by the High Court Division in writ petition No. 2424 of 1995)

Mahmudul Islam, Attorney General (M/S. B. Hossain & Bazlur Rahman (chhana), Deputy Attorney General with him) instructed by Sharifuddin Chaklader Advocate-on-Record. …………For the Appellant

M/S. Dr. Kamal Hossain, Syed Ishtiaq Ahmed and Amir-ul-Islam, Senior Advocates,

instructed by Md. Aftab Hossain, Advocateon-Record……Repondent Nos. 75, 133 & 183

Respondent Nos. 1-74, 76-132, 134-182 & 184-223 …. Not represented

JUDGMENT

1. Mustafa Kamal CJ : How far the constitution of Bangladesh has actually secured the

separation of the judiciary from the executive organs of the State and whether the

Parliament and the executive have followed the constitutional path are the crux issues that fall to be determined in this appeal by leave by the Government appellant from the judgment and order dated 7.5.97 passed by a Division Bench of the High Court Division in Writ Petition No. 2424 of 1995. 218 writ petitioner-respondents who are either District

Judges or Additional District Judges or Subordinate Judges or other Judges serving in

the subordinate judiciary filed the said Writ Petition impleading the appellant, Secretary,

Ministry of Finance, Government of Bangladesh as respondent No. 3 and other Ministries and functionaries of the Government as respondent Nos. 1-2 and 4-6 in which a Rule Nisi was issued at the first instance to show cause as to why the Bangladesh Civil Service (Re-organisation) Order, 1980, purporting to incorporate “Judicial Service” within the Bangladesh Civil Service as one of the Cadre Service vide paragraph 2(x) thereof should not be declared as ultra vires the Constitution and unconstitutional, in particular violative of Articles 27 and 29 of the Constitution and why the impugned orders passed by the appellant dated 28.2.1994 and 2.11.1995 suspending and then cancelling respectively and earlier order of the appellant dated 8.1.1994 regarding the pay and allowances of the respondents should not be declared ultra vires, malafide, discriminatory and violative of fundamental rights as guaranteed by the Constitution and to show cause as to why the attempt to treat the Judges of the subordinate Courts as part of the Civil Services Cadre meant for the executive branch of the Government and to subject them to any laws meant for the employees of the executive Government should not be declared as illegal and ultra vires the Constitution and why a separate set of rules for the Judges of the subordinate Courts should not be framed as contemplated under Article 115 of the Constitution. This Rule Nisi was issued on 19.11.1995. On the application of the writ petitioner-respondents another Rule Nisi was issued calling upon the same respondents to show cause as to why the benefits allowed as per paragraph 3 of the impugned order dated 2.11.1995 vide Annexure F(l) to the officers of the other cadres should not be given also to the Senior Assistant Judges and the Assistant Judges of the judicial service of the Republic.

2. An affidavit-in-opposition was filed on behalf of the present appellant who, as already

noted, was respondent No. 3 in the writ petition, but no affidavit -in-opposition was filed

by the other respondents. On 13.6.1996 when the matter came up for hearing an order

requesting the learned Attorney General to appear in this case as it involved important

questions of law having far-reaching effect. The learned Attorney General was notified

and on 27.6.1996 this matter came up in the list and was adjourned on the prayer of the

Government. Again this matter came up for hearing on 29.1.1997 when a Counsel for the

Government stated that the learned Attorney General had already written to the

Government in respect of the reliefs sought for by the writ petitioners and prayed for some time for examination of the matter by the Government. The Division Bench adjourned the matter upto 24.3.1997. When the matter was taken up for hearing on 1.4.1997, a Counsel for the Government informed the Court that the learned Attorney General had written to the Government expressing an opinion favorable to the writ petitioners and that the Government had not filed any affidavit-in-opposition. The Division Bench noted that the learned Attorney General had given his opinion favourable to the writ petitioners and that the other respondents had not appeared and contested the Rules Nisi. In such a situation it appeared to the Division Bench that neither the Government had acted in the meantime in accordance with the opinion of the learned Attorney General nor the Government was interested in contesting the Rules Nisi. So the Division Bench heard only the several learned Advocates for the writ petitioners and thereafter by judgment and order dated 7.5.1997 made the Rules Nisi absolute and gave certain other directions which will be noted in due course.

3. It is against the aforesaid judgment and order that of all the various Ministries and

functionaries of the Government, named as respondents in the writ petition, only respondent No. 3 mentioned above obtained a leave to appeal.

4. The writ petitioners’ basic cause of grievance emanates from Annexure-A to the writ

petition, a Cabinet Secretariat, Establishment Division (Implementation Cell) Order dated

1.9.1980 contained in S.R.O. No. 286L/80/ED(IC)SII-92/80-98 calling the Order as

the Bangladesh Civil Service (Re-organisation) Order, 1980 providing therein that there

shall be 14 Bangladesh Civil Service Cadres, Bangladesh Civil Service (Judicial) being No. 2(x) of them. The parent legislation that supports this Order is Annexure-B to the writ petition, namely, The Services (re-organisation and Conditions) Act, 1975 (Act No.

XXXII of 1975), hereinafter called the Act, conferring on the Government the power to

create new services or amalgamate of unify existing services. In exercise of powers under

section 5 thereof, the Government passed the Services (Grade, Pay and Allowances) Order, 1977 fixing the grades, scales of pay etc. of inter alia the subordinate judgiciary, re-fixing them from time to time by issuing fresh Orders under section 5. By order dated

8.1.1994 the appellant in the Implementation Cell accepted in paragraph 3 thereof that the

Bangladesh Civil Service (Judicial) officials perform a kind of work the nature and character of which is different and separate from others and on that ground and consideration re-fixed their present National Pay Scale, 1991, enhancing substantially their pay scale that was in force before 8.1.1994. However under the pressure of other Bangladesh Civil Service Cadres the appellant was forced to postpone implementation of the order dated 8.1.1994 by an order dated 28.2.1994 which has been impugned in the writ petition. By a further order dated 2.11.1995 the appellant refixed the scale of pay of Bangladesh Civil Service (Judicial) officers with effect from 8.1.1994 which the writ petitioners also challenged as being discriminatory and violative of their fundamental rights.

5. As the Division Bench of the High Court Division accepted fully all the submissions

made by the several learned Advocates for the writ petitioners it will be enough to summarise the impugned judgment in its essentials which will reflect both the arguments and submissions of the writ petitioners as well as the rationale of the impugned judgment.

6. Six broad points were urged by the writ petitioners and accepted by the High Court Division. They are the following: (l) Thc term B.C.S. (Judicial) is a fundamental misconception as judicial service is recognised and treated separately in Articles 115, 116 and 116A of the Constitution and defined separately in Article 152(1) of the constitution. The subordinate courts are part and parcel of Part VI of the Constitution as a separate

and independent entity and cannot be a part of the civil, administrative or executive

service of the country. The definition of the “service of the Republic” in Article 152(1) of the Constitution is broad and includes defence and judgicial services, but that does not mean that judicial service or defence service is a part of the civil or administrative service. The definition clause cannot bring judicial service within the ambit of executive or administrative service which is called Bangladesh Civil Service. Article 133

cannot be invoked for the judicial officers as there are separate provisions for them in Articles 115 and 116 of the Constitution. Judicial officers are not persons in the service of the Republic for the purpose of Article 133 and hence the Rules regarding their appointment and conditions of service cannot be framed under Article 133. It will be totally unconstitutional if the subordinate courts are tagged with or brought under the control of the executive under Part IX or any other part of the Constitution, excepting

Part VI. The judicial service cannot be legally brought within the ambit of Act No. XXXII of 1975 because if it is so done it will alter the very fundamental and basic structure of the Constitution relating to separate and independent judicial service as contained in Part VI of the Constitution. The inclusion of the Judicial service under Bangladesh Civil Service (Re-organisation) Order, 1980 dated 1.9.1980 as Bangladesh Civil Service (Judicial) is ultra vires the Constitution. As the defence service is under Part IV, so is judicial service under Part VI. In such a situation, the defence service has been correctly organised by separate Acts and Rules and in a similar way the judicial service shall have to be organised in accordance with the provisions of Part VI and the enactments and rules made thereunder. (2) The writ petitioners have come up for a declaration that the judiciary has already been separated under Part VI and that the respondents should be directed to implement and carry out the mandate of the Constitution in pursuance of Articles 109, 115, 116 and 116A. In the instant case the High Court Division can direct the legislature and the executive to perform their functions which they are required to do under the Constitution. The State should provide immediately for bringing judicial service under the direct control of the High Court Division functionally and structurally and this direction was given by the High Court

Division in exercise of power under Article 102(2)(a)(i) of the Constitution. The High Court Division, in its opinion, is competent to direct the respondents to make necessary Rules and/of enactment in order to enable the subordinate judiciary to function as an independent institution. Rules made under Article 115 may provide for independent Service Commission as well as independent Pay Commission for the purpose of appointment of judicial officers and magistrates performing judicial functions and for the

purpose of fixing their scales and grades of pay commensurate with their recognised

status in the Constitution. (3)For effective implementation of the provisions of Articles 115 and 116 necessary Rules are to be framed by the President. Although Article 115 speaks of appointment, it also means terms and conditions of Service. Articles 115 and

116 require that not only recruitment Rules but also Rules governing conditions of service of the judicial officers and magistrates performing judicial functions are to be made by the President. Since the rule-making power of the President is wide, unlimited and absolute, the President can make any provision under these Rules that are necessary for carrying out the purposes of separation of judiciary from the executive. (4)For separation of the subordinate judiciary from the executive no further constitutional amendment is necessary. Article 109 of the Constitution brings subordinate courts and tribunals under the control and superintendence of the High Court Division. Necessary rule-making power has been given making the Supreme Court as the real wielder of

authority in framing rules under Article 115 of the Constitution. Read with Articles 116 and 116A of the Constitution the subordinate judiciary has already been separated from the executive in the constitutional scheme. In the Fundamental Principles of State

Policy Article 22 of the Constitution provides that the State shall ensure the separation

of the judiciary from the executive organs of the State. This principle shall be applied by the State in the making of laws and Article 22 was not meant for beautifying the constitution as an ornament. The will of the people was entitled to be implemented within a reasonable time and the period of 25 years from independence is definitely a reasonable

period to implement the cherished will and desires of the people. The Supreme Court alone shall have overall control, supervision and management over the subordinate courts and over magistrates exercising judicial functions and the executive will have no control, supervision and management over them in any manner whatsoever. (5)Judicial officers do not come within the jurisdiction of the Administrative Tribunal as their service conditions are governed and determined by/or under Chapter II of Part VI of the Constitution. Courts or Judges are not subordinate to the said Tribunal and hence Judges or the Courts are not to seek relief from the Administrative Tribunal. (6) Some unreasonable conditions were attached with the pay scales of the Subordinate Judges, Additional District and Sessions Judges and District and Sessions Judges which were not attached in respect of pay scales and allowances of other Bangladesh Civil Service Cadre holders. The impugned orders Annexures-F & F(l) so far as the same relate to the writ petitioners and other judicial officers, are ultra vires the Constitution being violative of Articles 27 and 29 of the Constitution. The benefits given by order dated 8.1.1994 had

been abruptly and arbitrarily taken away by Annexures-F & F(l) without assigning any reason and the earlier order dated 8.1.1994 was acted upon and the same created a vested right in favour of the judicial officers. Annexure-E dated 8.1.1994 shall stand valid and shall continue till new pay scales are fixed in future by framing necessary enactment and/or rules pursuant to the impugned judgment.

7. The final orders that the Division Bench in the writ petition passed were as follows:

(i) The impugned orders dated 28.2.1994 and 2.11.1995, Annexures-F & F(l)

respectively are declared to have been made and issued without lawful authority

and are of no legal effect, being ultra Vires the Constitution. (ii)It is clear that the Service Cadre made under paragraph 2(x), namely, Bangladesh Civil Service (Judicial) as

contained in the Bangladesh Civil Service (Re-organisation) Order, 1980 vide Annexure-A with amendment (dated 31.8.86), is ultra vires the Constitution. (iii) It is further declared that all the judicial officers of Bangladesh, i.e., all judges of different courts from Assistant Judges to the District and Sessions Judges are not required to go and submit before the Administrative Tribunal for any grievance with respect to their service

conditions and the said Judges and magistrates performing judicial functions shall be guided under Articles 115, 116 and 116A and according to the findings in the impugned judgment made above; (iv) It is declared that in order to give effect, carry out and implement fully the separation of judiciary from executive organ of the State no constitutional amendment will be necessary as the provisions for such separation are there in the Constitution itself. It is directed that the services of the judicial officers and

magistrates performing judicial functions shall be known as “Judicial Service of Bangladesh” under the direct control and supervision of the Supreme Court;

(v)It is also declared that refixation of National Pay Scale, 1991 as enumerated in paragraph no. 3 of Services (Pay and Allowances) Order, 1.991 dated 8.1.94 vide Annexure E so far as the writ petitioners are concerned shall stand valid and the same will continue until necessary rules/enactment made; (vi) Assistant Judges and Senior

Assistant Judges will continue to get their salaries and allowances as they are now

getting which will not be less than those that are admissible under paragraph no. 3

of Annexure F(l); (vii) Respondent Nos. 1, 2 and 4 shall take immediate step to make necessary rules under Article 115 or make enactment to give effect to and carry out the purposes of the Constitution, particularly of Articles 109, 115, 116 and 116A read with Articles 8 and 22 of the Constitution; (viii) If the present pay scales of the petitioners and other judicial officers are amended or enhanced or new pay scales are given before making rules under Article 115, the same of the said judicial officers and the Magistrates shall be made and/ or done keeping conformity with the pay scales as are now declared

for them in the impugned judgment.

8. Leave was granted on the submissions of Mr. Mahmudul Islam, the learned Attorney

General to consider the following submissions of the appellant, namely, first, that the

judicial officers and other officers of the Civil Services fall into well-defined different classes, all of them being members of the service of the Republic in respect of the Government of Bangladesh which includes the Parliament, executive and the judiciary. There can be no question of discrimination of judicial officers and the other officers of the Civil Service and the High Court Division was wrong in declaring Annexures-F & F(l) to be discriminatory and without lawful authority.

9. Secondly, no discrimination in fact having been made, the High Court Division was wrong in finding discrimination of judicial officers without properly examining the provisions of Annexures-F & F(l).

10. Thirdly, having regard to the status of Government service which permits changes in

the service conditions by the Government and in the absence of any prohibition in varying terms and conditions of service and particularly in view or the provisions of Article 136 of the Constitution, the High Court Division was wrong in holding that imposition of conditions in Annexure-F(l) in respect of judicial officers is without lawful authority.

11. Fourthly, upon a complete misinterpretation of the provisions of the Constitution and

its scheme as made explicit in Parts VI and IX of the Constitution the High Court Division wrongly held that the inclusion of judicial officers in the Bangladesh Civil Service (Reorganisation) order, 1980 is ultra vires the Constitution.

12. Fifthly, the High Court Division was wrong in taking the view that judicial officers

are outside the purview of Part IX of the Constitution and that Articles 133 and 136

have no application in their cases, thereby depriving judicial officers of the benefit of

fundamental rights under Article 29 and the benefit of Article 135 of the Constitution.

13. Sixthly, the High Court Division failed to make a distinction between Court and its presiding officer and this has led the High Court Division to take a wrong view of Articles 109 and 117 of the Constitution and to hold that judicial officers need not approach the Administrative Tribunal for relief.

14. Seventhly, in the face of express provisions of Article 116 of the Constitution, the

High Court Division was wrong in holding that the Supreme Court alone shall have overall control, supervision and management of the judicial officers.

15. Eighthly, the High Court Division was wrong in ignoring the express provisions of the Constitution and has given directions contrary to the provisions of the Constitution by creating a judicial service of Bangladesh under the direct control and supervision of the Supreme Court.

16. Ninthly, the’High Court Division travelled beyond its jurisdiction in directing adoption of legislative measures by the Government in violation of the principle of separation of powers adopted by the Constitution.

17. And lastly the present appeal involves important questions of law relating to the

interpretation of the Constitution.

18. While Mr. Mahmudul Islam, learned Attorney General made his submissions for

the appellant, Mr. Amir-Ul-Islam, learned Counsel made the main submissions on behalf

of the respondents. Their respective submissions will be reflected all over this judgment.

Dr. Kamal Hossain and Syed Ishtiaq Ahmed made some short submissions on behalf of the respondents which will also be noted. Before we advert to their respective submissions, we shall take note of the main constitutional provisions involved in this appeal.

19. The original and unamended Constitution of 1972 contained a sub-heading “Subordinate Courts” in Chapter II of Part VI of the Constitution in the following terms:

CHAPTER II SUBORDINATE COURTS

Establishment of Subordinte Courts – 114. There shall be in addition to the Supreme

court such courts subordinate thereto as may be established by law. Appointments to Subordinate Court – 115.(1) Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President (a) in the case of district Judges, on the recommendation of the Supreme Court; and (b) in the case of any other person, in accordance with rules made by the President in that behalf after consulting the appropriate public service commission and the Supreme Court. (2) A person shall not be eligible for appointment as a District Judge unless he(a) is at the time of his appointment in the service of the Republic and has, for not less than seven years, held judicial office in that service; or (b) has for not less than ten years been an advocate.

Control And Discipline of subordinate Court 116. The control (including the power of posting promotion and grant of leave) and discipline of persons employed in the judicial service and Magistrate exercising judicial functions shall vest in the supreme Court.

20. Judicial “Service” was defined in Article 152(1) of the Constitution as follows :”

judicial service” means a service comprising persons holding judicial posts not being posts superior to that of a district judge; “District Judge” was defined as follows:” district judge” includes additional district judge;” Article 152(1) also defined “the service of the Republic” in the following terms:”the service of the Republic” means any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic;” Article 152(1) of the Constitution also gives an inclusinoary definition of the words “the

State” as follows : “the State” includes Parliament, the Government and statutory public authorities;”

21. The Constitution contains provisions for the Services of Bangladesh in Part IX,

Chapter I which are as follows: “133. Subject to the provisions of this Constitution Parliament may by law regulate the appointment and conditions of service of persons in the service of the Republic: Provided that it shall be competent for the President to make rules regulating the appointment and the conditions of service of such persons until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law. 134. Except as otherwise provided by this

Constitution every person in the service of the Republic shall hold office during the pleasure of the President. 135.(1) No person who holds any civil post in the service of the Republic shall be dismissed or removed or reduced in rank by an authority subordinate to that by which he was appointed. (2) No such person shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause why that action should not be taken: Provided that this clause shall not apply(i) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his

conviction of a criminal offence; or (ii)where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that, for a reason recorded by that authority in writing, it is not reasonably practicable to give that person an opportunity of showing cause; or (iii) where the President is satisfied that in the interests of the security of the State it is not expedient to give that person such an opportunity. (3) If in respect of such a person the question arises whether it is reasonably practicable to give him an opportunity to show cause in accordance with clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be

final. (4) Where a person is employed in the service of the Republic under a written

contract and that contract is terminated by due notice in accordance with its terms, he shall not, by reason thereof, be regarded as removed from office for the purposes of this article. 136. Provision may be made by law for the reorganisation of the service of

the Republic by the creation, amalgamation or unification of services and such law may vary or revoke any condition of service of a person employed in the service of the Republic.”

22. Unnoticed by the learned Counsels of both sides and the High Court Division is sub-paragraph (6) of paragraph 6 of the Fourth Schedule to the Constitution (Transitional and

temporary provisions) which without any subsequent amendment so far provides as follows:” (6) The provisions of Chapter II of Part VI (which relate to subordinate courts)

shall be implemented as soon as practicable, and until such implementation the matters provided for in that Chapter shall (subject to any other provision made by law) be regulated in the manner in which they were regulated immediately before the commencement of this Constitution.”

23. Article 150 of the Constitution provides as follows: “150. The transitional and temporary provisions set out in the Fourth Schedule shall have effect not withstanding any other provisions of this Constitution.”

24. Articles 115 and 116 were amended by the Constitution (Fourth Amendment) Act, 1975 (Act II of 1975) and a new Article 116A was inserted thereby. Later, a further amendment in Article 116 was made by the Second Proclamation (Fifteenth Amendment) Order, 1978 (Second Proclamation order No. IV of 1978) so that the present chapter II of Part VI stands as follows: “114. There shall be in addition to the Supreme Court such courts subordinate thereto as may be established by law. 115. Appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be

made by the President in accordance with rules made by him in that behalf. 116. The control (including the power of posting, promotion and grant of leave) and discipline of persons employed in the judicial service and magistrates exercising judicial functions shall vest in the President and shall be exercised by him in consultation with the Supreme Court. 116A. Subject to provisions of the Constitution, all persons employed in the

judicial service and all magistrates shall be independent in the exercise of their judicial functions.”

25. The Services (Reorganisation and Conditions) Act, 1975 (Act No. XXXII of

1975), shortly the Act, was enacted in July 1975, but it was given a retrospective effect

from the 1st July, 1973. Under section 4 thereof the Government was given the power to

reorganise the services of the Republic and for that purpose create new services or amalgamate or unify existing services. Section 5 authorised the Government to prescribe

grades and scales of pay and other terms and conditions of service with a view to bringing uniformity in the grades and Scales of pay of different persons or classes of persons. Section 7 provided that an order under section 4 or 5 may vary or revoke any condition of service of a person employed in the service of the Republic and no such person shall be entitled to any compensation for such variation or revocation of any condition of his service to his disadvantage. All those powers were conferred in the Government, not only on the strength of Article 136 of the Constitution but also on the authority of paragraph 10 of the Fourth Schedule (Transitional and temporary provisions) of the Constitution which is as follows: “10. (1) Subject to this Constitution and to any other law (a) any person who immediately before the commencement of this constitution

was in the service of the Republic shall continue in that service on the same terms and conditions as were applicable to him immediately before such commencement; (b)all authorities and all officers, judicial, executive and ministerial throughout Bangladesh exercising functions immediately before the commencement of this Constitution, shall, as from such commencement, continue to exercise their respective functions. (2) Nothing in sub-paragraph (1) of this paragraph shall (a) derogate from the continued operation

of the Government of Bangladesh (Services) Order, 1972 (P.O. No.9 of 1972), or the Government of Bangladesh (Services Screening) Order, 1972 (P.O. No 67 of 1972); or

(b)prevent the making of any law varying or revoking the conditions of service (including remuneration, leave, pension rights and rights relating to disciplinary matters) of persons employed at any time before the commencement of this Constitution or of persons continuing in the service of the Republic under the provisions of this paragraph.”

26. By S.R.O. No. 286-L/80/ED (IC) SII 92 / 80-98 dated 1.9.80 the Establishment Division of the Cabinet Secretariat notified in the Official Gazette the Bangladesh Civil

Service (Re-organisation) Order, 1980 in exercise of powers conferred by section 4 of

the Act. By paragraph 2 of that order 14 Bangladesh Civil Service Cadres were created

of which B.C.S. (Judicial) was No.X. This Order was further amended by an S.R.O.

dated 31.8.1986 whereby as many as 30 Service cadres were created, B.C.S. (Judicial)

being No. XVI. By a further S.R.O. dated 1 January, 1981 Bangladesh Civil Service

Recruitment Rules, 1981 were framed by the President in exercise of powers conferred on him by the proviso to Article 133 of the Constitution. These Recruitment Rules, separately made for separate cadres were made applicable to all Service Cadres created by the aforementioned S.R.Os, including B.C.S. (Judicial).

27. It will be seen therefore that the Act itself emanated from the substantive law-making

power of the Parliament under Article 136, that the Government created Bangladesh Civil

Service Cadres under section 4 thereof under a delegated power and that the President

framed Recruitment Rules in exercise of power under the proviso to Article 133 of the

Constitution.

28. Neither the Parliament nor the Government nor the President took any notice of the provisions of the Constitution contained in Chapter II of Part VI of the Constitution,

notwithstanding the mandate of the Constitution contained in sub-par