Government of Bangladesh and others Vs. Md. Aftabuddin (Retired District and Sessions Judge) and another, 15 MLR (AD) (2009) 41

Case No: Civil Petition for Leave to Appeal Nos. 111 and 112 of 2008

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. M. Amir-Ul Islam,Mr. M. K. Rahman,Mr. Ajmalul Hossain QC,,

Citation: 15 MLR (AD) (2009) 41

Case Year: 2009

Appellant: Government of Bangladesh

Respondent: Md. Aftabuddin

Subject: Constitutional Law,

Delivery Date: 2009-12-17

Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
Md. Abdul Aziz J
ABM Khairul Haque J
Md. Muzammel Hossain J
Surendra Kumar Sinha J
 
Government of Bangladesh and others
………........Appellants (In Civil Appeal No.111 of 2008).
Kazi Habibul Awal
……............Appellant (In Civil Appeal No.112 of 2008).
Vs.
Md. Aftabuddin (Retired District and Sessions Judge) and another
…….……...Respondents (In both the cases).
 
Judgment
December 17, 2009
 
Constitution of Bangladesh, 1972
Article 22— Separation of judiciary from the executive means the functional separation—A judicial officer on deputation by reason of performing non-judicial functions does not cease to be member of judicial service.
 
Case Referred To-
Dr. Shahdin Malik Vs. Government of Bangladesh, Writ Petition No. 11739 of 2006; Bangladesh Vs. Md. Idrisur Rahman and others, BLT (AD) 231 volume-XVII; S.P. Gupta and others Vs. President of India and others, AIR 1982 SC 149.
 
Lawyers Involved:
M. K. Rahman Additional Attorney General instructed by A.S.M.Khalequzzaman, Advocate-on-Record-For the Appellants (In Civil Appeal No.111 of 2008)
M. Amirul Islam, Senior Advocate instructed by Mrs. Sufia Khatun, Advocate-on-Record-For the Appellant (In Civil Appeal No. 112 of 2008)
Ajmalul Hossain, Senior Advocate (Awlad Ali, Senior Advocate and Kamrul Huq Siddiqi, Advocate with him) instructed by Mvi. Md. Wahidullah, Advocate-on-Record- For Respondent No. 1 (In both the cases)
Not represented-Respondent No. 2 (In both the cases)
 
 
Civil Petition for Leave to Appeal Nos. 111 and 112 of 2008.
(From the judgment and order dated 18.02.2008 passed by the High Court Division in Writ Petition No. 6219 of 2007)
 
JUDGMENT
 
Md. Abdul Matin J.-
 
1. These two appeal Nos.111 and 112 of 2008 at the instance of the Government and Kazi Habibul Awal, Secretary-in-charge of Ministry of Law, Justice and Parliamentary Affairs respectively having arisen from the self-same judgment involving common question of law and facts are heard and disposed of by this common judgment.
 
2. These two appeals are directed against the judgment and order dated 18.02.2008 passed by the High Court Division in Writ Petition No.6219 of 2007 making the Rule absolute with direction.
 
3. The writ-petitioner invoked writ jurisdiction under Article 102(2)(b)(ii) of the Constitution by way of quo-warranto challenging the appointment of writ respondent No.5 Kazi Habibul Awal, Additional Secretary, Legislative Drafting Wing of the Ministry of Law, Justice and Parliamentary Affairs as the Secretary-in-charge of the Ministry and rule nisi was issued to show cause how and under what authority he was holding the said office of the Secretary-in-charge on the following averments.
 
4. In exercise of the powers conferred under Article 133 of the Constitution of the People's Republic of Bangladesh, the President framed the Legislative Drafting Officers (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998 vide S.R.O. No.১৫১ আইন/-ভেটিং-৩/৯৭ Published in the Bangladesh Gazette on 09.07.1998. The schedule of the said Rules provides for the posts of Additional Secretary (Drafting), Joint Secretary (Drafting), Deputy Secretary (Drafting), Senior Assistant Secretary (Drafting) and Assistant Secretary (Drafting). Rule-7 of the said Rules provided for absorption of Officers of Judicial Service in the Legislative Drafting Wing on their option and particularly rule-7(2) provides that any person once absorbed in this service shall not be allowed to go back to his previous service. By the notification published in Bangladesh Gazette dated 10.04.2000, rule 7 of the said Rules were amended providing for written application for absorption and certain other matters but maintaining the provision of rule 7(2) as before. The Government took initiative to upgrade the Legislative Drafting Wing of the Ministry of Law into a Division to be headed by a Secretary but the said initiative was challenged by this writ-petitioner in a writ petition No.7327 of 2006. The respondent No.5 joined in the Bangladesh Civil Service (Judicial) in the post of Munsif on 01.12.1981 and was subsequently promoted to the post of Subordinate Judge on 08.03.1988 and to the post of Additional District Judge and District Judge. After framing of the Legislative Drafting Officers (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998 the respondent No. 5 by written application prayed for absorption in the Legislative Drafting Service leaving his former rank in the Bangladesh Judicial Service and was absorbed in the post of Joint Secretary in the year 2000 and later on he was promoted to the post of Additional Secretary of the Legislative Drafting Wing. The respondent No. 5 filed an application to get appointment to the post of Secretary on 11.06.2007 which is unwanted. By notification No.১২৮-বিচার-৩/২/২০০২ published in the Bangladesh Gazette on 27.02.2001 the Government after consultation with the Supreme Court framed a Nitimala by which 75% posts out of all class-1 posts of the Law and Justice Wing and of the Ministry of Law, Justice and Parliamentary Affairs including the post of Secretary were reserved for the Officers of the Judicial Service; that violating the aforesaid Nitimala and in supercession thereof one Additional Secretary in-current-charge, the respondent No.5, Kazi Habibul Awal. Additional Secretary (Drafting), has been appointed as Law Secretary. In exercise of the powers conferred under Article 133 of the Constitution, the President framed the সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২ which was published in the Bangladesh Gazette dated 11.06.2002. The said Rules have been made applicable to all posts of Deputy Secretary, Joint Secretary, Additional Secretary and Secretary except certain reserved posts i.e. 75% posts including the post of the Secretary of the Ministry of Law, Justice and Parliamentary Affairs. The Government framed the বাংলাদেশ জুডিসিয়াল সার্ভিস (কর্মস্থল নির্ধারণ, পদোন্নতি, ছুটি মঞ্জরী, নিয়ন্ত্রন, শৃংখলা-বিধান এবং চাকুরির অন্যান্য শর্তাবলী) বিধিমালা, ২০০৭ which has been published in the Bangladesh Gazette on 16.01.2007; that the said Rules were again amended by Gazette Notification dated 02.04.2007. Rule 7 the said Rules has prescribed that members of the Bangladesh Judicial Service may be deputed to Ministry of Law, Justice and Parliamentary Affairs. In breach of all the past precedents, the Nitimala of 2001, the Promotion Rules, 2002, the Rules of 2006 and judgment of Writ Petition No. 11736 of 2006 by the impugned order dated 28.06.2007 Government has appointed the respondent No.5 as the Secretary-in-charge of the Ministry of Law, Justice and Parliamentary Affairs. The respondent No. 5 being not a member of the Judicial Service, consultation with the Supreme Court was not required as is required under Article 116 of the Constitution for Judicial Officers. The impugned notification dated 28.06.2007 says that the Supreme Court has given assent to the appointment. Such assent, if any, might have been obtained by misrepresentation of facts. The consultation in his case is neither obligatory nor desirable. The post of Secretary of the Ministry of Law is a blocked post for the members of Legislative Drafting Wing whereas it is a reserved post for the members of Judicial Service serving in the Law and Justice Wing.
 
5. The learned Counsel appearing for the appellants in C.P. No. 459 of 2008 submitted that the writ-petition is not a bona fide one. The petitioner filed on earlier occasion another Writ Petition No.7327 of 2006 in the name of Public Interest Litigation (PIL) challenging the Government's decision to upgrade the Legislative Drafting Wing into a full fledged Division. He has, in reality, filed that writ petition at the instance of some other interested persons belonging to Bangladesh Judicial Service Association. Minutes of the meetings of Bangladesh Judicial Service Association, is a clear proof of his mala fide intention as such he has no locus standi, malafide and motivated. The writ-respondent No. 5 applied or intended to be the Secretary of the Ministry of Law, Justice and Parliamentary Affairs, a post not belonging to the Legislative Drafting Wing or Law and Justice Wing, but of the Ministry of Law as a whole. The petitioner has overlooked or has intentionally tried to mislead the Court about the essential difference between a Wing and a Ministry. Nowhere and in no Rules it has been so provided that the Additional Secretary of the Legislative Drafting Wing will not be eligible to be appointed to the post of Secretary of the Ministry of Law. According to the provisions of the সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২, the writ-respondent No. 5 is fully eligible to be appointed to the post of Secretary with all the qualifications as required under the said Rules. The reference to Rule 7(2) of the Legislative Drafting Officers (Ministry of Law, Justice and parliamentary Affairs) Recruitment Rules, 1998 is absolutely irrelevant as the writ-respondent No. 5 had never applied to the Government to return to his former service or cadre, and the said Rules do not create any embargo for an Additional Secretary of the Legislative Drafting Wing to be appointed as Secretary of the Ministry of Law. The post of Secretary or any other post in the Ministry of Law is not a substantive judicial service post. The Judicial Officers in the Ministry of Law hold the post of Assistant Secretary to Joint Secretary only on deputation. The status of Judicial Service is constitutionally defined under Article 152 as being a service comprising persons holding judicial posts not being superior to that of a District Judge. As such, an appointment of a Judicial Officer by promotion to the post of Additional Secretary or Secretary in the Ministry of Law or in any other Ministry will be violative of the clear provision of the Constitution. The writ-petitioner has pleaded a case for one Harun Osmani, which is not permissible in a PIL case and he has no locus standi to institute such a writ petition as a proxy for a person who himself does not claim by appearing in Court. As per Rules 5(1) (ga), 5(3) and First Schedule of the সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২, it is a most usual and clearly expressed provision that one shall be appointed Secretary by promotion from among Additional Secretaries to the Government and who has served as Additional Secretaries for at least two years. At the time of the impugned appointment as Secretary-in-charge, writ-respondent No. 5 had been an Additional Secretary by regular promotion for about three years ago. Whereas, Harun Osmani, at that time, held the post of Additional Secretary on current charge only, he had not yet been appointed by promotion to the substantive post of Joint Secretary, not to speak of being appointed by promotion to the post of Additional Secretary. Further he does not have the minimum academic points for promotion to the post of Secretary, whereas the writ-respondent No. 5 has adequate academic points for promotion to the post of Secretary as required under Schedule-2 of the সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২. A Judicial post of District Judge is not comparable with a civil executive post. But the petitioner has attempted to compare. If compared, the post of District Judge is rather treated as equivalent to the post of Deputy Secretary to the Government. Many District Judges are holding posts of Deputy Secretaries as well as Joint Secretaries in different ministries, but on deputation. Unless promoted, a District Judge does not become substantive Joint Secretary to the Government. Harun Osmani whose case was pleaded in the writ petition is, for all practical purposes, substantively a District Judge equivalent to a Deputy Secretary to the Government. Whereas writ-respondent No. 5 at the relevant time of the impugned appointment, was a very senior full fledged Additional Secretary to the Government. It is very unfair and absurd that a third person pleads for Harun Osmani and opposes the appointment of writ-respondent No. 5 to the post of Secretary in the Ministry of Law. The writ-petitioner has put much reliance upon notification dated 22.02.2001 in order to promote the appointment of a Judicial Officer to the post of Secretary in the Ministry of Law. Neither Article 115 nor Article 133 of the Constitution permits regulation of appointment and conditions of service of persons in the service of the Republic, by any instrument other than Law made by the Parliament or Rules made by the President. The said policy was also inconsistent with সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২, বাংলাদেশ জুডিসিয়াল সার্ভিস (সার্ভিস গঠন, সার্ভিস পদে নিয়গ এবং সাময়িক বরখাস্তকরন, বরখাস্তকরন ও অপসারন) বিধিমালা ২০০৭ and বাংলাদেশ জুডিসিয়াল সার্ভিস (কর্মস্থল নির্ধারণ, পদোন্নতি, ছুটি মঞ্জুরী, নিয়ন্ত্রন, শৃংখলা-বিধান এবং চাকুরির অন্যান্য শর্তাবলী) বিধিমালা, ২০০৭. In view of Article 140(2) (b) of the Constitution, it was an indispensable requirement to consult with the Public Service Commission before such provisions of substantive appointment and transfers from the Judicial Service to the Executive Civil Service were made. To such extent the said instrument dated 22.02.2001 was, on face of it, unconstitutional. The clause 5(ঙ) of the Nitimala 2001 provides for parallel appointment of a District Judge to the post of Additional Secretary. The Government had always appointed the judicial officers to the post of Additional Secretary and Secretary by promotion and had effected such promotion by approval of the Prime Minister, apparently in accordance with the provisions of সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২. The writ-respondent No. 5 is holding his present office as Secretary-in-charge of the Ministry of Law, Justice and Parliamentary Affairs on being duly and lawfully appointed by the competent authority on 28.06.2007. At the time of his appointment the petitioner was the only Additional Secretary in the Ministry of Law. He was appointed by promotion to the substantive post of Additional Secretary on 18.07.2004 i.e. about 2 (two) years and 11 (eleven) months earlier. Harun Osmani was holding the post of Additional Secretary, only on current charge, on being so appointed on 07.05.2007, only one and a half months earlier. As per provisions of the Legislative Drafting Officers (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998 writ-respondent No. 5 is no more a judicial officer and is not entitled to return back to his former service, but for that matter is not clear at all as to why and how his appointment as Secretary-in-charge shall have to be Illegal. The post of the Secretary of the Ministry of Law, Justice and Parliamentary Affairs is not a judicial post at all. It is exclusively an executive post under the Executive Branch of the Government. The appointment of Secretary in the Ministry of Law, Justice and Parliamentary Affairs like other Secretaries to the Government, is obviously governed by the সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২, The policy dated 22.02.2001, so far it related to the appointment of a Judicial Officer to the post of Additional Secretary or Secretary, was illegal and unconstitutional from the very beginning on account of being contrary to the provisions of Articles 27/29(1)/115/133/152 of the Constitution as well as being made without consultation with the Public Service Commission in flagrant violation of the provision of Article 140(2) (b) of the Constitution. The Government did never reserve or intended to reserve the post of Secretary in the Ministry of Law exclusively for a Judicial Officer. Even the relevant rule of the Judicial Service dealing with promotion of Judicial Officers clearly showed the post of District Judge to be the highest post of the Judicial Service which is consistent with Article 152 of the Constitution as well. The said Rules did never contain any provision so as to show that a District Judge, remaining a member of the Judicial Service, shall be promoted to the post of Additional Secretary and thereafter, to the post of Secretary in the Ministry of Law. to file that writ petition. The Ministry of Law, Justice and Parliamentary Affairs has been organized into two Wings namely, Law and Justice Wing and Legislative Drafting Wing. The post of Additional Secretary is the apex post of the Legislative Drafting Wing as per organogram of the Ministry of Law, Justice and Parliamentary Affairs as well as Legislative Drafting Officers' (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998. In a similar way, the post of Additional Secretary is the apex post in the Law and Justice Wing of the same Ministry. This in no way means or is intended to mean that an Additional Secretary of the Legislative Drafting Wing can be promoted to the post of Secretary of the Ministry of Law. The post of Secretary is a common post for the whole Ministry, while the post of an Additional Secretary is an apex post for a "Wing" of a Ministry has been defined as self contained sub-division headed by an Additional Secretary or Joint Secretary. It is always the most usual legal or conventional provision that the Secretary in a Ministry or Division shall be appointed from among the Additional Secretaries on the basis of seniority and other required qualifications as laid down in the promotion Rules namely, সরকারের উপ-সচিব, যুগ্ন সচিব, আতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২. The writ-petitioner has given an imaginary interpretation to the effect that the post of Additional Secretary in the Legislative Drafting Wing is a blocked post. Nowhere in that Rules or in any other Law and Rules it has been so stated. This interpretation is rather
 
6. The learned Additional Attorney General appearing for the petitioners in C. P. No.458 of 2008 submitted that the reservation of 75% posts of the Ministry of Law, including the post of Secretary for the officers belonging to the members of Judicial Service and their appointment on promotion to above posts is contrary to the doctrine of separation of judiciary from the executive service of the Republic as mandated by Article 22 of the Constitution as well as against the spirit of the judgment in Masder Hossain's case, which prohibits any such attempt to amalgamation, mixing up or tying together of the Judicial Service with that of Civil Executive Service of the Republic; that Bidhimala, 2002 is inapplicable for promotion of the judicial officers, though for appointment to Judicial Service a separate Recruitment Rules, namely বাংলাদেশ জুডিসিয়াল সার্ভিস গঠন,প্রবেশ পদে নিয়গ এবং সাময়িক বরখাস্তকরন, বরখাস্তকরন ও অপসারন বিধিমালা, ২০০৬ have been framed under Article 115 of Constitution; that the appointment and promotion of the Judicial Officers are guided by only these two separate Rules which have been exclusively made for themselves in accordance with Article 116 of the Constitution as directed in Masder Hossain case; that the High Court Division committed error in law in not accepting the legal right as well as legitimate expectation of the petitioner by virtue of the Secretary Committee decision dated 06.01.1997 which has got the  force of  law, because  it  is   an Administrative order/decision of binding nature and of general application based on equality and covered by legal formalities of the Rules of Business, 1996;  that the Secretary Committee decision dated 06.01.1997 created a promissory estoppel against the Government to deny its substance; that since the Government (Ministry of Establishment) has admitted the existence and genuineness of the above decision by filing affidavit-in-opposition in the instant case, it will always be applicable in   favour of the writ respondent No. 5 to materialize his legitimate right and   expectation to become the Law Secretary; that he has opted out the Judicial Service only to serve in the executive branch being Law Secretary because he understood that by virtue of the direction of Masder Hossain case, no Judicial Officer will be able to serve in the executive office lawfully and separation is inevitable in near future. Accordingly, he opted out from the Judicial Officer and absorbed in Legislative Service and this is sufficient evidence of his legitimate expectation to become the Law Secretary. The learned Counsel further submitted that the Law Secretary is a post reserved for members of Judicial Service because neither the Bidhimala, 2002 nor any existing law clearly makes any provision rather it says that the post of the Law Secretary is a common post exclusively reserved for the officers of the Ministry of Law as a whole, who have legal background and serving in the Ministry permanently, irrespective of Legislative or Judicial Service.
Leave was granted to consider the above submissions.
 
7. Heard M. K. Rahman, the learned Additional Attorney General appearing for the appellants in Civil Appeal No.111 of 2008 and M. Amirul Islam, the learned   Counsel appearing for the appellant in Civil Appeal No.112 of 2008 and Mr. Ajmalul Hossain, Q. C., the learned Counsel with Awlad Ali, learned Counsel and Kamrul Islam Siddique, learned Advocate appearing for the respondent No. 1 and perused the petitions and the impugned judgment and order of the High Court Division and other papers on record.
 
8. The main contention of the appellant in Civil Appeal No.111 of 2008 is that reservation of 75% posts of the Ministry of Law including the post of Secretary for the officers belonging to the members of Judicial Service and their appointment and promotion to the above post is contrary to the principle of separation of judiciary    from the executive as mandated by Article 22 of the Constitution.
 
9. The further case of the appellant is that such reservation is against the spirit of the judgment of this Division in the case of Masder Hossain which prohibits amalgamation, mixing up or trying together of the Judicial Service with that of Civil   Executive Service of the Republic.
 
10. The further case of the appellant is that the post of Law Secretary is reserved for members of Judicial Service because neither the Bidhimala, 2002 nor any existing law clearly makes any provisions rather it says that the post of Law Secretary, is a common post exclusively reserved for the officers of the Ministry of Law as a whole, who have legal background serving in the Ministry permanently, irrespective of legislative or judicial service.
 
11. The case of the appellant in Civil Appeal No. 112 of 2008 is that the writ of quo-warranto is not maintainable in as much as the appellant is not usurper to the present office and he holds the office on lawful authority.
 
12. The further case of the appellant is that the High Court Division erred in law ignoring that the Nitimala, 2001 does not have the force of law and further case of the appellant is that the High Court Division erred in law in holding that 75% posts of the Ministry of Law, including the post of Secretary is reserved for the officers belonging to the members of Judicial Service and they can be appointed on promotion to above post which is contrary to the doctrine of separation of judiciary  from the executive service of the Republic as mandated by Article 22 of the Constitution as well as against the letter and spirit of the judgment of Masder Hossain case.
 
13. The case of the respondent No.1 is that 75% of class-I posts of Justice Wing of the Law Ministry including the post of Secretary is reserved for Judicial Officers firstly by the Senior Service Pool Order, 1979 then by the Senior Service Pool (Repeal) Order, 1989 then by the Nitimala dated 27.02.2001 which has been affirmed by the সরকারের উপ-সচিব, যুগ্ন সচিব, আওতিরিক্ত সচিব ও সচিব পদে পদোন্নতি বিধিমালা, ২০০২ (hereinafter referred to as the Bidhimala, 2002), then by the বাংলাদেশ জুডিসিয়াল সার্ভিস (কর্মস্থল নির্ধারন, পদোন্নতী, ছুটি মঞ্জুরী, নিয়ন্ত্রন শৃঙ্খলা বিধান ও চাকুরী অন্যান্য শর্তাবলী) বিধিমালা, ২০০৬ and ২০০৭ as such there is no scope in law for appointing a person, who is not a member of the Judicial Service, to the post of Secretary of the Law Ministry.
 
14. The further case of the respondent No.1 is that the Bidhimala, 2002 is for promotion to the post of Deputy Secretary and up wards up to Secretary except for   the reserved posts as mentioned in Rule 5(1) (t) thereof and as such no appointment to the post of Secretary, Law Ministry can be made under the Bidhimala, 2002.
 
15. The further case of the respondent No.1 is that Kazi Habibul Awal, since opted out from Judicial Service in 2000, is a non Cadre Officer but Bidhimala 2002 for promotion and appointment to the post of Deputy Secretary and upwards up to Secretary is meant for cadre officers only and hence Kazi Habibul Awal can not be appointed to the post of Secretary of any Ministry under the Bidhimala, 2002 and   therefore his appointment in question is without lawful authority.
 
16. The further case of the respondent No.1 is that Kazi Habibul Awal had opted out of the Judicial Service for being absorbed in the Legislative Drafting Service in accordance with the provisions of the Legislative Drafting Officers (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998 knowing fully well that, the alleged decision of the meeting of the Secretaries Committee dated 06.01.1997 has not been approved by the competent authority and therefore no provision has been made in the Legislative Drafting Officers (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998 for promotion or appointment of officers of that wing to the post of Secretary, Ministry of Law and as such the plea of legitimate expectation does not fit in his mouth.
 
17. On the question of maintainability of the writ petition the High Court Division held as under:-
 
"Having regard to the fact that the office of the Secretary of a Ministry is a public office, the highest executive post amongst the Officer in the Secretariat of the Ministry, and as such if there be any allegation as to eligibility against holding of the post and also as being not appointed in accordance with law, the same requires to be looked into and that the petitioner also described himself as a practicing Advocate of the Supreme Court, which shows that he is a conscious and responsible person. Hence we are inclined to examine the legality as to the holding of the post of Secretary-in-charge by the respondent No.5. It is also now been settled that in a petition of writ of quo warranto any citizen may question or challenge the holding of any public office by any person unauthorisedly and or in an unlawful manner. In that view of the matter we do not find much substance in the submissions made by the learned Advocate appearing for the respondent No. 5 objecting to the Rule on the issues of maintainability and the locus standi of the writ petitioner in the instant case and we hold that the application is in order and the petitioner has locus standi to challenge the holding of the office of Secretary-in-charge by the respondent No.5."
 
18. We also find that the respondent is a practicing Advocate of this Court and therefore there is no lack of standing in filing the writ petition. It is worthwhile to mention that in the case of S.P. Gupta and others Vs. President of India and others reported in AIR 1982 SC 149 Indian Supreme Court held as under:-
 
"The profession of lawyers is an essential and integral part of the judicial system and lawyers may figuratively be described as priests in the temple of justice. They assist the court in dispensing justice and it can hardly be disputed that without their help, it would be well nigh impossible for the Court to administer justice. They are really and truly officers of the Court in which they daily sit and practice. They have, therefore, a special interest in preserving the integrity and independence of the judicial system and if the integrity or independence of the judiciary is threatened by any act of the State or any public authority, they would naturally be concerned about it, because they are equal partners with the Judges in the Administration of justice."
 
19. Besides, this writ petition before the High Court Division being one under Article 102(2) (b) (ii) does not require that the applicant for a writ of quo warranto must be an aggrieved party. Any person can maintain such an application without showing any violation of his legal right. Moreover we do not find that the respondent filed the case malafide or is fighting battle for any other person with any motive, other than serving the interest of the judicial. Further Harun Osmani has already passed away.
 
20. The High Court Division considered that:-
 
"The respondent No. 5 opted for service under the Legislative Drafting Wing in the year 2000 having had full knowledge about the Legislative Drafting Officers (Ministry of Law, Justice and Parliamentary Affairs) Recruitment Rules, 1998 wherein the resolution taken in the meeting of the Secretaries dated 06.01.1997 so far relating to the decision for appointment on promotion of the officers of Drafting Wing to the post of Secretary, has not been incorporated, and that no material could be placed before us to show that the respondent No. 5 opted for absorption in the service under the Legislative Drafting Wing in the year 2000 "with any reservation or objection" to the effect that he is entitled to promotion beyond the post contained in the said Recruitment rules, 1998, and thus we do not find any substance to the submissions as to legitimate expectation of the respondent No.5 for appointment on promotion to the post of Secretary in the Ministry of Law, on the basis of the decision of the Secretaries dated 06.01.1997. Further no material could be placed before us to show that after his absorption in Legislative Drafting Wing till his promotion in the post of Additional Secretary, the highest post of the said Wing, the respondent No.5 has made any claim for his promotion to the post of Secretary of the Ministry of Law."
 
The High Court Division considered the Bidhimala, 2002 and held as under:-
 
"The Bidhimala, 2002 relates to the promotion, in the posts of Deputy Secretary and above upto Secretary in the Secretariat, of the Officers belonging to the cadre services, and the respondent No.5, not being an officer of any cadre service, is not entitled to claim any promotion under the said Bidhimala, 2002. Thus we do not find any substance in the submissions or statements of the respondent Nos.3,4 and 5 to the effect that the respondent No.5’s appointment as Secretary-in-charge has been made following the provisions of Bidhimala, 2002 and thus is valid and in accordance with law."
 
21. The High Court Division further held:-
 
"The SROs (mentioned herein below) relating to the creation of Senior Services Pool Order, 1979 under the authority of the Services (Re­organisation and Conditions) Act, 1975 (Act No. XXXII of 1975), which has Force of Law and that notification as to the Senior Services Pool Order, 1979 has been gazetted bearing SRO No. ED(1C)Sll-6/78-110 dated 23.08.1979, wherein appointments to the posts of Deputy Secretaries to Secretaries in the Bangladesh Secretariat were reserved for the officers of the encadred services except the reservations made i.e. (a) 10% which is reserved for the Section Officers of the erstwhile Secretariat Services, (b) fifty percent (50%) of Deputy Secretaries and above except the post of Secretary in the Ministry of Foreign Affairs and (c) fifty percent (50%) of the post of Deputy Secretaries and above in the Ministry of Law and that the said ratio of reserved posts was subsequently modified and enhanced by amendment of the Senior Services Pool Order, 1979, vide SRO.43-L/83 dated 08.02.1983 to the extent of (a) ten percent (10%) of posts of Deputy Secretaries to be filled up by promotion by the Section Officers of the B.C.S. (Secretariat); and (b) seventy five percent (75%) of posts of Director and above including the post of Secretary in the Ministry of Foreign Affairs; and (c) eighty percent (80%) of the posts of Ambassador in the Missions abroad; and (d) seventy five (75%) of the posts of Deputy Secretary and above in the Ministry of Law including the post of Secretary. The said Senior Services Pool Order, 1979 was repealed vide SRO No. ২৬১-আইন/৮৯/সম (বিধি-২)/এস.এস.পি-১/৮৯ dated 17.07.1989, which however retained the aforesaid percentages in the appointments in the posts of Deputy Secretary and above including the post of Secretary in the Ministry of Law, as reserved posts for the officers of the judicial services, which is still in force.
 
22. The High Court Division further held:-
 
"Considering the aforesaid provisions, as to the reserved posts, which is still in force, having "Force of Law" and having regard to the Rules-5(1) (Ga) and 5(1) and (3) read with Rule-3 of the Bidhimala, 2002 we are of the view that the 75% of the posts for appointments in the posts of "Deputy Secretaries to Secretary" in the Ministry of Law have been reserved for the officers coming from the judicial services and similar provisions have been provided in the judicial service Rules, 2006 and Judicial Service Rules, 2007 which have been framed after pronouncement of the judgment in the case of Masder Hossain and at the instance of the Appellate Division of the Supreme Court. This position, as per law, cannot be changed without amending the relevant laws inasmuch as no other interpretation can be given to the "laws and rules" in force relevant for appointment on promotion in the posts of Deputy Secretaries to Secretary in the Ministry of Law, Justice and Parliamentary Affairs."
 
23. And ultimately the High Court Division held:-
 
"Even without referring to the said Nitimala, 2001 we find that cadre-services have been created vide the Senior Services Pool Order, 1979 notified under SRO No. ED (1C) SII-6/78-110 dated 23.08.1979 and amended vide SRO No. 43-L/83 dated 08.02.1983 and that even after repeal of said Pool Order, 1979 vide SRO No. ২৬১-আইন/৮৯/সম (বিধি-২)/এস,এস,পি-১/৮৯ dated 17.07.1989 the reservation of post for the officers belonging to cadre-services has been retained and accordingly for the appointments in the posts of the Deputy Secretaries and above, 75% of the posts including the post of Secretary have been reserved for the officers belonging to the judicial services and that as per the schedules of the Bidhimala, 2002 is applicable for promotions to the posts of Deputy Secretaries and above for the Officers belonging to the Cadre Services and that the respondent No. 5 is not an officer belonging to any of the Cadre Services, hence he does not come within the purview of the Bidhimala 2002 and accordingly, is not eligible for appointment on promotion to the post of Secretary-in-charge in the Ministry of Law."
 
24. It appears that in Writ Petition No. 11739 of 2006, Dr. Shahdin Malik Vs. Government of Bangladesh and others the authority of the Government in appointing judicial officers to the post of Additional Secretary and Secretary to the Ministry of Law, Justice and Parliamentary Affairs was challenged when one Ali Ashraf Khan Lodi a Judicial Officer on deputation was promoted as Additional Secretary to the said Ministry and in that case the Government, the present appellant in Civil Appeal No. 111 of 2008 supported the legality of such appointments and the High Court Division discharged the Rule.
 
25. In that judgment the High Court Division considered the rules of business as under:-৬৮। এ প্রসঙ্গে মন্ত্রণালয়ের বর্তমান কার্যাবলীর সঙ্গে আমরা দরখাস্তকারী ও অন্যান্য এডভোকেটগণকে প্রশ্ন করিলে Rules of business এ বর্ণিত মন্ত্রনালয়ের বর্তমান দায় ও দায়িত্তের একটি তালিকা প্রদান করেন। ইহা নিম্নরূপঃ-
 
1. Advice to all Ministries, Divisions and offices of all legal and constitutional questions arising out of any case and on the interpretation of the Constitution and any law including international law.
2. Drafting, scrutiny and examination of Bills, Ordinances and Constitutional Orders and other statutory order rules, regulations bylaws, resolutions and notifications.
3. Drafting, scrutiny and examination of all contracts and agreements including international contracts and agreements and all other legal and other instruments.
4. International conventions and international legal affairs.
5. Conventions with other countries in judicial matters including questions relating to the International Court of Justice and references from United Nations Organisation   relating to traffics in women and children and obscene publications and prevention of crime and treatment of offenders.
6. Dealings and agreements with other countries and International Organisation in judicial and legal matters.
7. Translation of laws and other statutory rules and orders.
8. Copyrights in Governments law publication.
9. Publication of Acts, Ordinances and Constitutional Orders and others Statutory      Orders, rules and regulations.
10. Publication of authorised translation in Bengali of Acts, Ordinances and Constitutional Orders and Statutory Orders, Rules and regulations.
11. Compilation of publication of unrepealed Acts and Ordinances and constitutional and President's Orders and other Statutory orders, rules and regulations.
12. Codification, consolidation, adaptation and technical amendment of laws.
13. Law Commission and commissions of legal matters.
14. Legal proceedings and advice thereon.
15. Matters relating to Government law officers; appointment and terms and conditions of service of attorney-general, additional attorney-general, deputy attorney general, assistant attorney genera, Government pleaders, public prosecutors, special prosecutors and legal advisers to all statutory corporations and bodies.
16. Conduct of cases on behalf of the Government in all courts and tribunals.
17. Civil procedure.
18. Criminal law and criminal procedure.
19. Evidence and oath.
20. Will, intestacy and succession.
21. Trusts and trustees.
22. Arbitration and limitation.
23. Bankruptcy and insolvency.
24. Money-lending and money­lenders.
25. Legal profession and notaries.
26. Legal aid to the poor, defence of paupers and undefended accused.
27. Marriage and divorce, infants and minors, adoption, joint family and partition.
28. Transfer of property.
29. Registration.
30. Appointment and terms and conditions of service of Administrator-General and Official Trustee; Official Receiver.
31. Reciprocal agreements with foreign countries for the services of summons in civil suits and for the execution of decrees of civil courts, for the enforcement of maintenance orders and for the administration of the estates foreigners dying in Bangladesh.
32. Authorization of officers to sign and verify claims or written statements in suits by or against the Governments.
33. Administration and control of subordinate offices and organisation under this Ministry.
34. Liaison with international organisation and matters relating to treaties and agreements with other countries and world bodies relating to subjects allotted to this Ministry.
35. All laws on subjects allotted to this Ministry.
36. Inquiries and statistics on any of the subjects allotted to this Ministry.
37. Fees in respect of any of the subjects allotted to this Ministry except fees taken in courts."
 
And held as under:-

“৬৯। উপরোক্ত তালিকা হইতে প্রতীয়মান হয় যে, উপরের সকল দায়িত্তই বিশেষায়িত (specialised) । কাজেই সরকারের এই বিশেষায়িত কার্যাদি পরিচালনা করিবার জন্য জুডিসিয়াল সার্ভিসের সদস্যগণকে যদি মন্ত্রনালইয়ে জনসার্থে পদায়ন করা হয় তাহাতে অন্যায় কোন পদক্ষেপ বলিয়া প্রতিয়মান হয় না, বরং এই বিশেষায়িত কার্যাদিতে বিচার বিভাগের সদস্যগণের অংশগ্রহন শুধু সমর্থনযোগ্য নয় বরঞ্ছ জনসার্থেই প্রয়োজন।“
 
26. In that case the High Court Division considered the Nitimala, 2001 with special reference to the reservation of 75% of the posts for judicial officers and held that Nitimala, 2001 has the force of law. The High Court Division gave the following directions:-
 
“৯৫। ১.৭.২০০৭ইং তারিখ হইতে পূর্বের উপরোক্ত বিধিমালার পরিবর্তে বাংলাদেশ জুডিসিয়াল সার্ভিস (কর্মস্থল নির্ধারন, পদোন্নতি, ছুটি মঞ্জুরী, নিয়ন্ত্রন শৃঙ্খলা বিধান ও চাকুরী অন্যান্য শর্তাবলী) বিধিমালা, ২০০৭, কার্যকর হইবে এবং ৩নং প্রতিবাদীসহ জুডিসিয়াল সার্ভিসের সকল সদস্যগণসহ ২০০১ ইং সনের নীতিমালা ও উপরোক্ত বিধিমালা, ২০০৭, দ্বারা পরিচালিত হইবেন।
৯৬। উপরোক্ত আলোচনার আলোকে আইনগত অবস্থান নিম্নরূপঃ-
ক) সংবিধান ও মাজদার হোসেন মকদ্দোমার রায়ের নির্দেশনা অনুযায়ী অধঃস্তন আদালতগুলিকে একটি পৃথক,স্বতন্ত্র ও স্বাধীন সার্ভিস হিসাবে নামকরন করা হয়;
খ) উক্ত জুডিসিয়াল সার্ভিস এর জন্য এখনও পর্যন্ত মোট ৪(চার)টি বিধিমালা প্রনয়ন ও বাংলাদেশ গেজেটে প্রকাশিত হইয়াছে;
গ) উক্ত জুডিসিয়াল সার্ভিসের সদস্যগণের কর্মস্থল নির্ধারন ইত্যাদি চাকুরীর শর্তাবলী বিষয়ে বাংলাদেশ জুডিসিয়াল সার্ভিস (কর্মস্থল নির্ধারন, পদোন্নতি, ছুটি মঞ্জুরী, নিয়ন্ত্রন শৃঙ্খলা বিধান ও চাকুরী অন্যান্য শর্তাবলী) বিধিমালা, ২০০৬, একই বিষয়াবলীতে সংশোধিত বিধিমালা, ২০০৭, কার্যকর হওয়া পূর্ব পর্যন্ত কার্যকর থাকিবে;
ঘ) আইন, বিচার ও সংসদ বিষয়ক মন্ত্রনালয়ের সকল ১ম শ্রেণীর পদে নিয়গের ক্ষেত্রে ২২.২.২০০১ইং তারিখে নীতিমালা আনুসারে এবং বিধিমালা, ২০০৬ আথবা পরবর্তীতে ১.৭.২০০৭ইং তারিখ হইতে কার্যকর বিধিমালা, ২০০৭, প্রয়োগ মাধ্যমে,প্রেষণে বা অন্যবিধভাবে নিয়গ হইতে পারিবে;
ঙ) জেলা জজ/জেলা ও দায়রা জজ/ দায়রা জজ/সমপর্যাইয়ের অন্যান্য বিচারিক পদ, বাংলাদেশ সরকারের অন্যান্য সার্ভিসের ন্যায় ‘বাংলাদেশ জুডিসিয়াল সার্ভিস’ এর সর্বোচ্চ পদ;
চ) জুডিসিয়াল সার্ভিসের উপরোক্ত সর্বোচ্চ পদ হইতে সংশ্লিষ্ট সদস্যের জ়েষ্ঠ্যতা ও উপযুক্ততা অনুসারে আইন, বিচার ও সংসদ বিষয়ক মন্ত্রনালয়ের যুগ্ন সচিব অথবা অতিরিক্ত সচিব অথবা সচিব পদে ২২.২.২০০১ইং তারিখে নীতিমালা অনুসারে এবং বিধিমালা, ২০০৬ অথবা ১.৭.২০০৭ইং তারিখ হইতে কার্যকর বিধিমালা, ২০০৭, প্রয়োগ পদায়ন ও নিয়োগ হইতে পারিবে।
 
The above judgment of the High Court Division has been upheld by this Division by judgment and order dated 20.10.2008 passed in Civil Petition for Leave to Appeal Nos.1340 and 1918 of 2007.
 
27. It is surprising to note that the appellants in Civil Appeal No. 111 of 2008 who were respondents in the above writ petition and contested the same by filing affidavit-in-opposition supporting appointment of judicial officers and their deputation in the Ministry of Law and other offices now have taken completely different stand. Such a somersault on the part of the appellants is highly disapproved and deprecated. It is to be noted that in a proceeding where Government is sued or Government sues the authority to be named as plaintiff or defendant or petitioner or appellant or respondent is "Bangladesh" as per provision of article 146 of the A constitution read with Section 79 of the Code of the Civil Procedure, in absence of any writ rules on the subject and the Law Officers including the Attorney General represent the State and not the Government and therefore even with the change of the Government the stand once taken should be followed consistently to avoid chaos and uncertainty,
 
28. Let us examine how far the High Court Division was justified in holding that 75% posts of the Ministry of Law including the post of Secretary is reserved for the officers belonging to the members of the judicial service and whether they can be appointed/promoted to the above post and whether the finding of the High Court Division that respondent No.5 had no authority to hold the office of the Secretary-in-charge and that he does not belong to any cadre service and that he is not entitled to be appointed/promoted on the basis of Bidhimala of 2002 is based on correct footing.
 
29. Rule 5(1) of Bidhimala, 2002 runs as under:

 
“৫। পদোন্নতির পদ্ধতি।- (১) নিম্নে উল্লেখিত পদ্গুলি ব্যাতীত সরকারের সকল উপ-সচিব, যুগ্ন সচিব অথবা অতিরিক্ত সচিব অথবা সচিব পদে এই বিধিমালার অধীনে পদোন্নতি প্রদান করা হইবে, যথাঃ-
(ক) সরকার কর্তৃক নন-ক্যাডার কর্মকর্তাদের জন্য সময় সময় নির্ধারিত ও সংরক্ষিত পদ;
(খ) পররাষ্ট্র মন্ত্রনালইয়ের উপ-সচিব, পরিচালক এবং তদুর্ধ পদসংখার (সচিবের পদসহ) ৭৫% পদ।
(গ) আইন, বিচার ও সংসদ বিষয়ক মন্ত্রণালয়ের উপ-সচিব এবং  তদুর্ধ পদসংখার (সচিবের পদসহ) ৭৫% পদ।
(২) এই বিধিমালার বিধানাবলী এবং কোন পদের বিপরীতে প্রথম তফসিলে বর্ণীত প্রয়জনীয় যোগ্যতা সাপেক্ষে এবং দ্বিতীয় তফসিলে বর্ণীত পদ্ধতি আনুসরনে উত্ত পদে পদোন্নতি প্রদান করিতে হইবে।
(৩) উপ-বিধি (১) এর দফা (ক),(খ) ও (গ) এ উল্লেখিত সরকারের উপ-সচিব, যুগ্ন সচিব, অতিরিক্ত সচিব ও সচিব পদে পদোন্নতি প্রদানের ক্ষেত্রে এই বিধিমালার প্রথম তফসিলে বর্ণীত প্রয়জনীয় যোগ্যতা সাপেক্ষে এবং দ্বিতীয় তফসিলে উল্লেখিত পদ্ধতি, যতখানি সম্ভভ, অনুসরণে সংশ্লিষ্ট বিধিমালা অনুযায়ি পদোন্নতি প্রদান করিতে হইবে।“
 
30. If appears that the convention of filling 75% of the posts in the Ministry of Law first got its written support from the Nitimala, 2001. Therefore, the convention was accepted by the Executive as being consistent with the Constitution. It should be noted that this Nitimala was issued after the decision in Masder Hossain case. This was later confirmed by the Bidhimala, 2002 and then recognized by the Appellate Division in the Masder Hossain’s case by its Order dated 26.01.2003, the Bangladesh Judicial Service (Posting, Promotion, Leave Grant, Control, Discipline) Rules 2007, the Order dated 26.02.2007 of the Appellate Division in the Masder Hossain’s case and its vetting of the proposed amendment which has promulgated on 02.04.2007. The Rules being vetted by the Appellate Division and being promulgated (in particular, Rule 7) is confirmation of their being consistent with the Masder Hossain’s case. The case of Shahdin Malik confirms that the Nitimala 2001 is also consistent with the Masder Hossain’s case which judgment has been approved by this Division. Therefore, the issue of reservation of posts for judicial officers including the post of Law Secretary has passed the test of Masder Hossain’s case and cannot now be reopened and the High Court Division in the aforesaid Shahdin Malik case held that the Nitimala of 2001 has the force of law which has been upheld by this Division.
 
31. From the Bidhimala of 2002 quoted above it appears that by express provision it excluded its operation with respect- to promotion or posting of any person to 75% of the posts of Deputy Secretary and above including the post of Law Secretary.
 
32. It further appears from Rule 5(3) quoted above of Bidhimala, 2002; it recognized the Rules, 1998 and the Nitimala 2001 which is evident from the expression. Therefore the Rules of 1998 for Drafting Wing and Nitimala of 2001 have been kept   alive in the Bidhimala of 2002. With regard to repeal of the Nitimala of 2001 during pendency of the writ petition, the High Court Division rightly held that the repeal was done not bona fide and therefore the repeal has no consequence at all. It is true that the High Court Division did not directly rely upon the Nitimala, 2001 for the disposal of the writ petition. But this Nitimala is recognition of a long standing convention and the Bidhimala, 2002 does not specifically mention for whom such reservation has been made.

Rule 7 of বাংলাদেশ জুডিসিয়াল সার্ভিস (কর্মস্থল নির্ধারন, পদোন্নতি, ছুটি মঞ্জুরী, নিয়ন্ত্রন শৃঙ্খলা বিধান ও চাকুরী অন্যান্য শর্তাবলী) বিধিমালা, ২০০৭ initially provided for deputation which runs as under:-
 
“৭। সুপ্রীম কোর্ট, আইন, বিচার ও সংসদ বিষয়ক মন্ত্রণালয় এবং অন্যান্য মন্ত্রণালয়ে প্রেষণে নিয়োগ।-
(১) সুপ্রীম কোর্ট এর চাহিদা অনুযায়ী উপযুক্ত কতৃপক্ষ উক্ত কোর্টে প্রয়োজনীয় সংখ্যক সার্ভিস সদস্যকে নিয়োগ/বদলী করিবেন। আইন, বিচার ও সংসদ বিষয়ক মন্ত্রণালয়ে সার্ভিসের সদস্যদের জন্য সংরক্ষিত পদে উপযুক্ত কর্তৃপক্ষ সুপ্রীম কোর্টের সহিত পরামর্শক্রমে সার্ভিসের সদস্যদেরকে প্রেষণে নিয়োগ/বদলী করিবেন। এছারা অন্য কোন মন্ত্রণালয়, জাতীয় সংসদ সচিবালয় বা নির্বাচন কমিশন সচিবালয়ে প্রয়জোনবোধে উপযুক্ত কর্তৃপক্ষ সুপ্রীম কোর্টের সহিত পরামর্শক্রমে সার্ভিসের সদস্যদেরকে প্রেষণে নিয়োগ/বদলী করিতে পারিবেন।“
 
The above Rule 7 has been amended as under:-
 
“(ঘ) বিধি ৭ এর-
(১) উপ-বিধি (১) এর ৫ম ও ৭ম লাইনে “প্রেষণে” শব্দের পর উভয় লাইনে “বা অন্যবিধভাবে” শব্দগুল সন্নীবেশিত হইবে,এবং উভয় লাইনে “/বদলী” চিহ্ন ও শব্দ বিলুপ্ত হইবে, এবং ৬ষ্ঠ লাইনে “সচিবালয়ে” শব্দের পর “অন্য কোন কর্তৃপক্ষের অফিসে” শব্দগুলি সন্নিবেশিত হইবে।“
 
33. Thus it appears that while framing the Rule 7 the Rule making authority under Article 133 of the Constitution has provided for deputation against the reserved posts mentioned hereinabove and recognized such reservation and deputation.
 
34. Ajmalul Hossain, the learned Counsel appearing for the respondent No.1 has drawn our attention to the West Bengal Judicial (Conditions of Service) Rules,    2004    which    provided    for deputation of judicial officers in Rule 19 which runs as under:-
 
"19. Deputation. - Any member of the service may be deputed by the High Court to perform the duties of any post in the Central Government or the State Government or the Union Territory of Andaman and Nicober Islands or to serve in any organisation, which is wholly or partly owned or controlled by the Central or the State Government, for a period of 3 years or for such period as the High Court and the borrowing department agree:
            Provided that the High Court may withdraw such officer from the borrowing department before the expiry of the term of deputation for administrative convenience or the borrowing Department may release such officer before the expiry of the term of deputation for administrative convenience."

Thus it appears that such provision of deputation has been provided for in India despite Article 50 of their Constitution providing for separation of judiciary from the executive.
 
35. It appears that definition of Cadre as given in Rule 5 (7) of Bangladesh Service Rules (Part-I) is not applicable in the present context because Section 4 of the Service (Re-organization and Conditions) Act, 1975 (Act 32 of 1975) has authorized the government to re­organize services by Gazette notification. In exercise of powers under Article 136 of the Constitution by notification dated 01.09.1980 (SRO No.286) government re­organized services in 14 Cadres which was modified from time to time. Later on by notification dated 31.08.1986 (SRO No.346) the government re-organized services into 30 Cadres and by notification dated 27.01.1996 it was again re-organized to 29 Cadres. A service not encadred by such notification although a service of the Republic is not a Cadre service for the purpose of Bidhimala 2002.  Support for this submission is found in Rule 5(ka) of the Bidhimala 2002 which refers to "non Cadre Service".
 
36. Thus it appears that the High Court Division committed no error of law in holding that Bidhimala 2002 does not apply in case of the respondent No.5 of the writ petition. It is further held that reservation of 75% posts of the law and justice wing and the post of Secretary of the Ministry of Law is reserved for the judicial officers as provided for by Bidhimala 2002 to be read with Rides of 1998 for the Drafting Wing and Nitimala 2001 and the writ respondent No.5 has no authority to hold the post of Secretary-in-charge of that Ministry. We further hold that he has no authority to hold any other posts other than the post of the Additional Secretary, Drafting Wing and his present holding of the post of Secretary is without any lawful authority.
 
37. Now the question is whether the reservation of executive posts for the judicial officers and the provision of deputation is contrary to the doctrine of separation of power as contemplated by Article 22 of the Constitution and the spirit of the case of Masder Hossain.
 
38. In the case of Bangladesh Vs. Md. Idrisur Rahman and others reported in BLT (AD) 231 volume-XVII this Court held that the independence of judiciary is a basic structure of our Constitution and in order to ensure the independence, separation of power as contemplated under Article 22 of the Constitution which is a   sine qua non for such independence, must be fully implemented.
 
39. The doctrine of the separation of powers was formulated by English writers and controversialists of the mid-seventeenth century who argued for the separation of the legislative and executive (then including judicial) functions of government, seeing in this a means to restrain the abuse of governmental power. The theory of the separation of powers was subsequently developed by John Locke in his Second Treatise of Civil Government (1690) and, more systematically, in France, by Montesquieu in The Spirit of the Laws (1748). Montesquieu, in the context of his description of an idealised English constitution, distinguished the legislative, executive and judicial functions of government, which he maintained should be exercised by different persons, and insisted on the independence of the judiciary. (Montesquieu also held that the judiciary should not be identified with any one estate or class of persons in the state.) 'All would be lost', he wrote (The Spirit of the Laws, Book XI, ch 6), 'if the same man or the same ruling body, whether of nobles or of the people, were to exercise these three powers, that of law-making, that of executing the public resolutions, and that of judging crimes and civil causes'. He held also that the legislature and the executive should have powers to enable each to check or limit the other.
 
40. Montesquieu’s work ensured the lasting influence of the theory of the separation of powers. In England, however, this theory was opposed in the eighteen century by the doctrine of the mixed or balanced constitution, in which monarchical, aristocratic and democratic elements were joined and held in equilibrium, rather than strictly separated. Accordingly, the theory of the separation of powers was not to prevail as an explanation of English constitutional arrangements; nor did it provide a focus for constitutional reform.
 
41. However this doctrine was incorporated in the Constitution of the US of 1789 being based on the conception of the separation of powers qualified by a machinery of checks and balances and also in France.
 
42. While writing in defense of such arrangement  which was said to be against of the spirit of separation of powers Madison in his Federalist Papers No. 47 praised the philosophy of the doctrine in the following words:-
 
"The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with this accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to everyone that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.
 
43. In view of the inherent wisdom in the doctrine our founding fathers of the Constitution incorporated the principle in Article 22 of the Constitution and this Court has been jealously upholding this spirit in all judgments.
However the true meaning of the doctrine needs to be understood in its proper perspective.
 
44. Madison in the aforesaid paper No. 47 of the Federalist investigated about the meaning of separation of power and proceeded as under:-
 
"Let us endeavor, in the first place, to ascertain his meaning on this point.
The British Constitution was to Montesquieu what Homer has been to the didactic writers on epic poetry. As the latter have considered the work of the immortal bard as the perfect model from which the principles and rules of the epic art were to be drawn, and by which all similar works were to be judged, so this great political critic appears to have viewed the Constitution of England as the standard, or to use his own expression, as the mirror of political liberty; and to have delivered, in the form of elementary truths, the several characteristic principles of that particular system. That we may by sure, then, not to mistake his meaning in this case, let us recur to the source from which the maxim was drawn.
 
45. On the slightest view of the British Constitution, we must perceive that the legislative, executive, and judiciary departments are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority. He alone has the prerogative of making treaties with foreign sovereigns which when made, have, under certain limitations, the force of legislative acts. All the members of the judiciary department are appointed by him, can be removed by him on the address of the two Houses of Parliament, and form, when he pleases to consult them, one of his constitutional councils. One branch of the legislative department forms also a great constitutional council to the executive chief, as, on another hand, it is the sole depository of judicial power in cases of impeachment, and is invested with the supreme appellate jurisdiction in all other cases. The judges, again, are so far connected with the legislative department as often to attend and participate in its deliberations, though not admitted to a legislative vote.
 
46. From these facts, by which Montesquieu was guided, it may clearly be inferred that in saying "There can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or, "If the power of judging be not separated from the legislative and executive powers," he did not mean that these departments ought to have no partial agency in, or no control over, the acts of each other. His meaning, as his own words import, and still more conclusively as illustrated by the example in his eye, can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted."
 
47. Karl Lowenstein in his book "Political Power and The Governmental Process" while dealing with the doctrine and its meaning observed as under:-
 
"What the so-called "separation of powers" actually amounts to is nothing more and nothing less than the realization that not only does the state have to perform various activities- the technical problem of the division of labor- but also the power addressees are better off if these activities are performed by different organs: freedom is the ideological telos of the separation doctrine. The separation of powers is merely the classical way of formulating the need for the shared and mutually controlled exercise of political power. What is colloquially, if erroneously, spoken of as the separation of powers is operationally only the distribution of specific state functions among different state organs. The term "powers" firmly established as it is, must, in this context, be understood to be merely figurative." This is why the author of the above book preferred "separation of functions" in preference to separation of power."
 
48. It is therefore pertinent to question if the judicial officers on deputation while on deputation or if appointed/promoted as additional Secretary or Secretary are still performing the judicial functions? Or after the deputation or appointment/ promotion they only perform their designated functions and not judicial functions?
 
49. It is therefore important to note that the separation doctrine means functional separation and when there is no conflict in the function i.e. if the secretary is not functioning as judge at the same time there is no conflict with the doctrine. In view of the nature and scope of the functions required to be performed by the Ministry of Law, Justice and Parliamentary Affairs experienced judicial officers having knowledge and training in law is best suited for appointment in the office of the Secretary.
 
50. In Masder Hossain’s case the decisions on No. 1 & 2 of the 12 points were completely on a different context namely application of the Service (Reorganization and Conditions) Act, 1975 to Judicial Service for creation, amalgamation, abolition or mixing up of the Service. Deputation or otherwise appointment of an individual Judicial Officers to Law Ministry cannot be called creation, abolition of the judicial service or amalgamation of the judicial service with the executive. A Judge so long on deputation retains his identity as a judicial officer though functioning in a different capacity and when promoted/appointed as Secretary etc. he ceases to function as a Judge and therefore there is no question of amalgamation or fusion and the spirit of separation of the judiciary from the executive as contemplated in the aforesaid case of Masder Hossain is not hampered or undermined in any way.
 
51. In the scheme of our Constitution the division of power is not absolute. The executive can legislate under certain circumstances. Reference may be made of Articles 62 (2), 93 and 115. Parliament cannot make law, relating to the appointment of judicial officers and magistrates exercising the judicial functions which has to be provided for by the President under Article 115 of the Constitution. On the other hand Parliament can cause a fall of executive Government and impeach the President. The parliament through its standing committees can review the execution of laws and investigate and enquire into the activities or administrations of Ministries. Reference may be made of Article 76. Judiciary on the other hand under Articles 107 and 113 make rules. The parliament at the same time can adjudicate certain disputes and hold the power to enforce its own privileges and to punish those who offend against them. Mahmudul Islam in his book Constitutional Law of Bangladesh, second edition p. 64-1.86, rightly observed, "In practice no water-tight separation of powers is possible or desirable."
 
52. In view of the discussions made above let us sum up our findings as under.-
 
1. It is held and declared that 75% posts of the Law and Justice Wing of the Ministry of Law, Justice and Parliamentary Affairs and the post of Secretary of that Ministry are reserved for the officers belonging to the members of the judicial service and they can be appointed or transferred on deputation and can be appointed to the posts, so reserved by the Nitimala, 2001.
 
2. Bidhimala, 2002 Rule 5(3) recognized the Drafting Rules, 1998 and the Nitimala of 2001 which is evident from the expression in Rule 5(3) সংশ্লিষ্ট বিধিমালা অনুযায়ি পদোন্নতি প্রদান করিতে হইবে and therefore both Rules of 1998 and Nitimala of 2001 have been kept alive in Bidhimala of 2002 and notification dated 29.11.2007 repealing the Nitimala of 2001 is of no consequence and the High Court Division rightly termed such repeal as not bona fide.
 
3. To the above posts including that of the Secretary of Ministry of Law, Justice and Parliamentary Affairs so reserved for members of the judicial service, no member of any other service or cadre or no individual can be appointed, whether on deputation, promotion, contract or otherwise.
 
4. The directions given in the case of Shahdin Malik (Writ Petition 11736 of 2006) by the High Court Division quoted hereinbefore having been approved by this Division by judgment and order dated 20.10.2008 in Civil Petition Nos.1340 and 1918 of 2007 being law declared are binding upon all concerned.
 
5. The appointment of Habibul Awal, as Secretary-in-charge and his subsequent promotion and appointment as Secretary, Ministry of Law, Justice and Parliamentary Affairs is without any lawful authority and is of no legal effect but all legal acts, things and deeds done by him during his tenure as Secretary-in-charge, acting Secretary and Secretary are hereby condoned.
 
6. Nitimala 2001 has already been decided as having the force of law; it shall be followed till appropriately repealed by an appropriate legal instrument in line with the Nitimala 2001.
 
53. Both the appeals are accordingly dismissed without any order as to costs.
 
Ed.