Kazi Md. Nurul Arefin. Vs. Government of Bangladesh & others, (Md. Shohrowardi, J.)

Case No: Writ Petition No. 12078 of 2016

Judge: Tariq Ul Hakim, J And Md. Shohrowardi, J

Court: High Court Division,

Advocate: Mr. Mohammad Bakir Uddin Bhuiyan, Advocate ,

Citation: 2019(1) LNJ

Case Year: 2018

Appellant: Kazi Md. Nurul Arefin

Respondent: Bangladesh represented by the Secretary, Ministry of Law and Justice and Parliament Affairs and others

Subject: Muslim Marriages and Divorces

Delivery Date: 2019-12-04

HIGH COURT DIVISION

(SPECIAL ORIGINAL JURISDICTION)

Tariq Ul Hakim, J

And

Md. Shohrowardi, J

 

Judgment on

05.08.2018

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Kazi Md. Nurul Arefin

. . .Petitioner

-Versus-

Bangladesh represented by the Secretary, Ministry of Law and Justice and Parliament Affairs and others

. . .Respondents

Muslim Marriages and Divorces (Registration) Rules, 2009

Rules 6(6Ka) and 8

If licence of a Nikah Registrar of an area of City Corporation, Pourashava or Union Parishad is terminate due to death or retirement of a Nikah Registrar, the son of the Nikah and Divorce Registrar of the concerned area shall get preference to be included in the panel of candidates for appointment as Nikah and Divorce Registrar subject to having qualification as mentioned in Rule 8 of the said Rules. . . . (10)

Muslim Marriages and Divorces (Registration) Rules, 2009

Rules 6(6A) and 12

A licence issued under Rule 6A shall terminate after the appointment of a Nikah Registrar under Rule 6 and licence issued under Rule 6 shall terminate as per Rule 12 of the said Rules when the Nikah Registrar attains the age of 67 (sixty-seven) years. Therefore the words ‘AemiRwbZ Kvi‡b’ as mentioned in Rule 6(6A) includes termination of licence by any means except misconduct and the case of the petitioner attracts the Rule 6(6A) of the said Rules.                                                          . . . (10)

Muslim Marriages and Divorces (Registration) Rules, 2009

Rule 4

As per provision provided in Section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 a temporary Nikah Registrar is also a Nikah Registrar. Therefore the petitioner as the son of a temporary Nikah and Divorce Registrar of the concerned Union is entitled to get preference to be included in the panel of candidates.        . . . (12)

Muslim Marriages and Divorces (Registration) Rules, 2009

Rule 8

Since out of 7(seven) candidates, 3(three) of them including the petitioner appeared before the Advisory Committee in time, the said committee mala fide included the name of the respondent No.10 in the panel of candidates to exclude the name of the petitioner who is a qualified candidate under Rule 8 of the said Rules. Therefore we are of the view that the Advisory Committee failed to discharge its duty fairly and impartially and acted in bad faith in preparing the panel of 3(three) candidates excluding the name of the petitioner.       . . .(13)

Mr. Mohammad Bakir Uddin Bhuiyan,

Advocate

. . . For the Petitioner.

Mr. Md. Bashir Ullah, Advocate

. . . For the Respondent No.8

Mr. Md. Zakaria Sarker, Advocate

. . .For the Respondent No.9

Ms. Amatul Karim,  D.A.G with

Ms. Saira Fairoz, A.A.G. with

Mr. Zaidy Hasan Khan, A.A.G          

. . . For the Respondents.

JUDGMENT

Md. Shohrowardi, J. This Rule Nisi was issued calling upon the respondents to show cause as to why  exclusion of the name  of  the petitioner  from the  panel of candidates  selected for  giving  appointment as Nikah & Divorce Registrar of No. 7 Nabinagar Poshchim Union,  Nabinagar, Brahmmanbaria  as  contained in memo No. 278 dated  10.08.2016 issued  under the  signature of the  respondent No.8(Annexure-J)  should not be declared to have been done without  any lawful authority and is of no  legal effect  and as to why the respondent Nos. 1 to 8  should not be  directed to prepare a panel  of candidates afresh including  the  name of the  petitioner for giving  appointment  as Nikah & Divorce  Registrar of  the said Union and to issue licence in favour  of the petitioner  as Nikah & Divorce  Registrar  in the vacant post of No.7 Nabinagar Poschim Union, Nibanagar, Brahmmanbaria  and/or pass such other or further order or orders as to this Court may seem fit and proper.

2.             Short facts relevant for the disposal of the Rule is that father of the petitioner namely Kazi Mohammad Abduz Zaher was appointed on 01.01.1998 as temporary Nikah and Divorce Registrar of No 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaia and on 23.02.2016 he voluntarily filed resignation letter praying for an appointment in favour of his son as Nikah and Divorce Registrar of the said union and the respondent No. 7 accepted his resignation letter by office order dated 23.02.2016. The respondent No.8 published a notice  on 26.05.2016 under Rule 6 (2)(3)(4)(5) of the Muslim  Marriage  and Divorce   (Registration) Rules, 2009 inviting applications for appointment  of Nikah and Divorce  Registrar of No. 7 Nabinagar Poshchim Union,  Nabinagar, Brahmmanbaria and the  respondent No.8 also brought  an  amendment  on 31.05.2016 in the said notice and accordingly  on  12.06.2016 the petitioner  filed an application  to the respondent No. 8 for appointment as Nikah and Divorce Registrar of the said Union  and his father also filed an application on 10.06.2016 to the Chairman of the Advisory Committee requesting him to  give  preference to the petitioner  as per S.R.O. No. 330 including his name in the panel of candidates. He also stated that President and General Secretary of the Kazi Samity of Brahmmanbraia Zilla on 10.06.2016 made a request to the respondent No.8 to give preference to the petitioner in including his name in the panel of candidates as the son of the Nikah and Divorce Registrar of the concerned union. The petitioner further stated that on 08.08.2016 he was present before the Advisory Committee in time with all the relevant original documents and the said Committee also examined those documents. Thereafter, the respondent No.8 prepared a panel of candidates excluding the name of the petitioner and by office memo dated 10.08.2016 sent the same to the respondent No.1 and thereafter the petitioner obtained the Rule Nisi on 08.09.2016.

3.             The respondent No.8, Sub-registrar, Nabinagar, Brahmmanbaria and Member  Secretary of the  Advisory Committee contested the Rule by filing affidavit-in-opposition stating that the respondent No.1 sent a letter on 09.05.2016 directing the respondent No. 8 to press the D.O. Letter of the local Member of Parliament to the Advisory Committee to prepare a panel  of candidates and thereafter on 26.05.2016 the  respondent No. 8 published a notice inviting  application to prepare a panel of the candidates  and pursuant to the said notice seven applicants filed applications for  getting appointment  as the Nikah and Divorce Registrar of the  said union and 4(four) applicants including the petitioner appeared in the viva voce examination before  the Advisory Committee, but he  failed to show the original  certificates of the required documents for which he  obtained  lowest mark and  the Advisory Committee prepared a panel  of  three candidates excluding the name of the petitioner and sent the same  to the  respondent No. 1 by memo No. 278 dated 10.08.2016.

4.             The respondent No. 9 also contested the Rule by filing affidavit- in- opposition stating that pursuance to notice dated 26.05.2016 he filed an application to include his name in the panel of candidates for appointment of Nikah and Divorce Registrar of the concerned union and he also appeared before the Advisory Committee and got the highest mark in the viva voce examination and the said Committee prepared a panel of candidates including his name in serial No.1.

5.             Learned Advocate Mr. Mohammad Bakir Uddin Bhuiyan appearing on behalf of the petitioner submits that his father was the Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria and under Rule 6(6Ka) of the Muslim Marriage and Divorce (Registration) Rules, 2009 as son of he Nikah and Divorce Registrar of the concerned Union he will get preference at the time of selection of the candidates and also appointment in the said post. Since he is a qualified candidate under Rule 8 of the said Rules, there is no scope to send the panel of candidates excluding his name. He further submits that his father filed resignation letter for getting an appointment as Nikah and Divorce Registrar of the said Union in favour of the petitioner.

6.             Learned Advocate Mr. Md. Bashir Ullah appearing on behalf of the respondent No. 8 submits that the father of the petitioner was a temporary Nikah and Divorce Registrar for which he will not get preference to be included in the panel of candidates. He further submits that the petitioner failed to show original certificates regarding his qualification for which he obtained the lowest mark amongst the candidates who appeared before the Advisory Committee for which his name was not included in the panel of the candidates.

7.             Learned Advocate Mr. Md. Zakaria Sarker appearing on behalf of the respondent No. 9 adopted the submissions made on behalf of the respondent No.8.

8.             The issue involves in the Rule as to whether the petitioner as the son of a temporary Nikah and Divorce Registrar of the concerned Union is entitled to get preference to be included in the panel of candidates and further question involves as to whether the Advisory Committee fairly and impartially prepared the panel of candidates.

9.             To answer the questions raised in the Rule the relevant provision of Rule 6 (6Ka) of  the Muslim Marriages and Divorces (Registration) Rules,  2009  is quoted below;

         6 (6K) hw` †Kvb wmwU K‡c©v‡ikb, †cŠimfv ev BDwbqb  cwil` GjvKvi †Kvb wbKvn. †iwR÷«v‡ii g„Z¨ ev AemiRwbZ Kvi‡Y jvB‡m‡Ýi Kvh©KiZvi Aemvb N‡U Zvnv nB‡j Dc-wewa (4) Gi Aaxb wbKvn& †iwR÷«v‡ii jvB‡mÝ cª`v‡bi D‡Ï‡k¨ cªv_x© evQvB Ges Dc-wewa(6) Gi Aaxb jvB‡mÝ  gÄy‡ii †¶‡Î  mswk­ó  wbKvn& †iwR÷«v‡ii cyÎ mš—vb‡K, wewa 8 Gi Aaxb †hvM¨Zv _vKv mv‡c‡¶, AMªvwaKvi  cª`vb Kwi‡Z nB‡e|

10.         On a careful reading of Rule 6(6Ka) of the Muslim Marriages  and Divorces  (Registration)  Rules, 2009 it appears that  if licence of a Nikah Registrar of an area of City Corporation, Pourashava  or Union Parishad is terminate due to death or retirement  of a Nikah Registrar, the son of the Nikah and Divorce Registrar of the concerned area shall get preference to be included in the panel of candidates for appointment as Nikah and Divorce Registrar subject to having  qualification as mentioned in  Rule 8 of the said Rules. It further appears that there is no provision for retirement of a Nikah Registrar appointed under Rule 6 or 6A of the Muslim Marriages and Divorces (Registration) Rules, 2009. A licence issued under Rule 6A shall terminate after the appointment of a Nikah Registrar under Rule 6 and licence issued under Rule 6 shall terminate as per Rule 12 of the said Rules when the Nikah Registrar attains the age of 67 (sixty-seven) years.  Therefore the words ‘AemiRwbZ Kvi‡b as mentioned in Rule 6(6A) includes termination of licence by any means except misconduct and the case of the petitioner attracts the Rule 6(6A) of the said Rules.

11.         On perusal of the records, it appears that the petitioner is the resident of the concerned union and he passed Alim Examination in 2014 from Madrasha Education Board, Dhaka (Annexure B-1) and aged about 23(twenty-three) years. Therefore, we are of the view that as per Rule 8 of the aforesaid Rules he is a qualified candidate for appointment as Nikah and Divorce Registrar of No. 7 Nabinagar Poschim Union, Nabinagar, Brahmmanbaria and as per Rule 6(6A) of the said Rule he will get preference to be included in the panel of candidates for appointment of Nikah and Divorce Registrar of the said Union.

12.         As regards the submission made on behalf of the respondent No. 8 regarding the entitlement of the petitioner as the son of a temporary Nikah and Divorce Registrar, we hold that as per provision provided in Section 4 of the Muslim Marriages and Divorces (Registration) Act, 1974 a temporary Nikah Registrar is also a Nikah Registrar. Therefore the petitioner as the son of a temporary Nikah and Divorce Registrar of the concerned Union is entitled to get preference to be included in the panel of candidates.

13.         On a careful reading of the Muslim Marriages and Divorces (Registration) Rules, 2009 it further appears that there is no provision in the said Rules authorizing the Advisory Committee to call for viva voce examination and give any mark in favour of any candidate for the purpose of preparing a panel of candidates. On perusal of the Annexure I-1 it appears that out of 7 (seven) candidates, 3(three) of them including the petitioner appeared in the viva voce examination before the Advisory Committee in time on 08.08.2016 at 10.00 am and respondent No.10 appeared before the Advisory Committee out of time at 12.00 am. But the Advisory Committee included the name of respondent No.10 in the panel of candidates in serial No.2 excluding the petitioner although as a qualified candidate he appeared before the Advisory Committee in time at 10.00 am which appears to us absurd.  There was no reason for the inclusion of the name of the respondent No.10 in the panel of 3(three) candidates. Since out of 7(seven) candidates, 3(three) of them including the petitioner appeared before the Advisory Committee in time, the said committee mala fide included the name of the respondent No.10 in the panel of candidates to exclude the name of the petitioner who is a qualified candidate under Rule 8 of the said Rules. Therefore we are of the view that the Advisory Committee failed to discharge its duty fairly and impartially and acted in bad faith in preparing the panel of 3(three) candidates excluding the name of the petitioner.

14.         As regards the direction upon the respondent Nos. 1 to 8 to issue licence in favour of the petitioner as Nikah and Divorce Registrar of the concerned union we hold that appointment of the Nikah Registrar is the discretion of the respondent No. 1 subject to the provisions provided in the Muslim Marriage and Divorce (Registration) Rules, 2009. Therefore we are not inclined to pass any direction as regards the appointment of Nikah Registrar of the said Union at this stage

15.         In view of the above facts and circumstances of the case and the proposition of law, we are inclined to make the Rule absolute- in-part.

16.         In the result, the impugned panel prepared by the Advisory Committee excluding the name of the petitioner for appointment of Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria as contained in memo No. 278 dated 10.08.2016 issued under the signature of the respondent No.8 (Annexure-J) is hereby declared to have been done without any lawful authority and is of no legal effect.  The respondent No. 8 is directed to prepare a panel of candidates afresh for the appointment of Nikah and Divorce Registrar of No.7 Nabinagar Poschim Union, Nabinagar, Brahmmanbaria including the name of the petitioner in serial No.1.

17.          However, there will be no order as to costs.

         Ed.


Writ Petition No. 12078 of 2016