LAWDEV (Bangladesh) Vs. Government of Bangladesh and another, 1 LNJ (2012) 21

Case No: Writ Petition No. 7119 of 2009

Judge: Moyeenul Islam Chowdhury,

Court: High Court Division,,

Advocate: Mr. Karunamoy Chakma,Mr. Tawhidul Islam,Mr. M. Amirul Islam,,

Citation: 1 LNJ (2012) 21

Case Year: 2012

Appellant: LAWDEV (Bangladesh)

Respondent: Government of Bangladesh and another

Subject: Writ Jurisdiction,

Delivery Date: 2011-02-24

HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Moyeenul Islam Chowdhury, J.
Naima Haider, J.
 
Judgment
23.02.2011 and 24.02.2011
LAWDEV (Bangladesh)
...........Petitioner
VS
The Government of Bangladesh and another
...........Respondents
 
Constitution of Bangladesh, 1972
Article 102(2) (b) (ii)
Writ of quo warranto-Any member of the public acting in good faith whose conduct does not disentitle him to the equitable relief of quo warranto may apply to the High Court Division without showing any violation of any law.........(40)
 
Constitution of Bangladesh, 1972
Articles 102, 129(4) and 152
Bangladesh Energy Regulatory Commission Act (XIII of 2003)
Sections 6(2), 10, 20(3), 55, and 88
The respondent No.2, a former Comptroller and Auditor-General of Bangladesh , the Chairman of Bangladesh Energy Regulatory Commission(shortly BERC) is performing his functions in respect of  the Government of Bangladesh for which he is necessarily in the service of Republic. Since he is in the service of the Republic, he cannot hold his present office because of the  absolute  embargo imposed by Article 129(4) of the Constitution.
 
It is an indisputable fact that the respondent no. 2 is a former Comptroller and Auditor-General of Bangladesh. Needless to say, he was a constitutional office-holder before his appointment as the Chairman of the BERC under the impugned Memo dated 11.10.2009. Article 129(4) of the Constitution contemplates that on ceasing to hold office, the Comptroller and Auditor-General shall not be eligible for further office in the service of the Republic. ... (47)
 
It is obvious from the long title and the preamble of the Act No. 13 of 2003 that the BERC is an independent and impartial regulatory body.  It is a statutory public body short of a constitutional body. .... (60)
 
The BERC is an independent and impartial regulatory authority, albeit it has to function within the parameters of the policy directives of the Government. However, the finality of the decisions or orders of the BERC as contemplated by Section 55 of the Act No. 13 of 2003 can not in any way impel us to hold that the respondent no. 2 is not performing functions in respect of the Government of  Bangladesh. Besides, as conceded by Mr. M. Amir-Ul Islam, the decisions or orders of the BERC are subject to judicial review under Article 102 of the Constitution. ..... (69)
 
The Chairman of the BERC is deemed to be a public servant within the meaning of Section 21 of the Penal Code as per Section 61 of the Act No. 13 of 2003. Indisputably the Government is the appointing authority of the Chairman. In view of the provisions of Section 10 of the Act No.13 of 2003, it is clear that the status, pay and allowances and other terms of the Chairman and the Members of the BERC shall be determined by the prescribed rules. But since no rules have been framed under Section 58 of the Act as yet, those of the Chairman and the Members of the BERC shall be determined by the Government. In the absence of any rules framed under Section 58, the terms and conditions  of the service of the respondent no. 2 have been determined by the Government as evidenced by the impugned  Memo dated 11.10.2009. .... (70)
 
So our interpretation of Article 129(4) of the Constitution is that on ceasing to hold office, the Comptroller and Auditor-General shall not be eligible for any office in the service of the Republic. In the result, the question of application of the principle of ‘ejusdem generis’ as argued by Mr. M. Amir-Ul Islam does not arise at all. ...... (83)
 
The Chairman of the BERC (respondent no.2) is performing his functions in respect of the Government of Bangladesh and by that reason, he is necessarily in the service of the Republic. As he is in the service of the Republic, he can not hold his present office being an ex-Comptroller and Auditor-General of Bangladesh because of the absolute embargo imposed by Article 129(4) of the Constitution. ..... (84)
 
The open process of public advertisement and selection of the respondent no. 2 by a Selection Committee for the post of the Chairman of the BERC was given a go-by by the Ministry of Power, Energy and Mineral Resources with some ulterior motive. ...... (85)
 
Ruhul Quddus, Advocate and others .…Vs…Justice M. A Aziz and others reported in 60 DLR (HCD) 511, Aminul Haque Helal (Md)…Vs… Justice Sultan Hossain Khan and others reported in 11 BLC (HCD) 339, Md. Idrisur Rahman …Vs… Md. Shahid Uddin Ahmed and others; 19 BLD(HCD)291, Secretary, Ministry of Finance…..Vs….Md. Masdar Hossain and others reported in 52 DLR (AD) 82, Shamsul Huq Chowdhury …Vs…Justice Md. Abdur Rouf and others; 49 DLR(HCD) 176 Ref.
 
Dr. Shahdeen Malik
Mr. Tawhidul Islam
---For the petitioner.
Mr. Korunamoy Chakma, D.A.G
---For the respondent no.1.
Mr. M. Amir-Ul Islam
Mr. M. Khurshid A. Sarkar
---For the respondent no. 2.
 
Writ Petition No. 7119 of 2009

 
 
JUDGMENT
Moyeenul Islam Chowdhury, J:
 
1.             A Rule Nisi was issued calling upon the respondents to show cause as to under what authority the respondent no. 2 is holding the public office of the Chairman of the Bangladesh Energy Regulatory Commission (BERC) under Memo No. বিজ্বাখস(প্র-৩)/বাএরেক/নিয়োগ(চেয়ারম্যান)-১৪/২০০৯ dated 11.10.2009 issued by the Ministry of Power, Energy and Mineral Resources (Annexure-‘D’) and  why the holding of the public office of the Chairman of the BERC by the respondent no. 2 and the said Memo dated 11.10.2009 (Annexure-‘D’) should not be declared to be without lawful authority, void abinitio and of no legal effect and/or such other or further order or orders passed as to this Court may seem fit and proper.
 
2.             The case of the petitioner, as set out in the Writ Petition, in short, is as follows:

         The petitioner LawDev(Bangladesh) is a law and development policy research  institute. It has been providing pro-bono legal services to various energy customer groups of Bangladesh and has been involved in other energy and power-related issues. The respondent no. 2 was appointed as the Chairman of the BERC under the impugned Memo No. বিজ্বাখস(প্র-৩)/বাএরেক/নিয়োগ(চেয়ারম্যান)-১৪/২০০৯ dated 11.10.2009  and has been continuing  to hold that  office as such. He is a former Comptroller and Auditor-General of Bangladesh.  He held the constitutional office of the Comptroller and Auditor-General of Bangladesh from 08.08.1999 to 04.02.2002. However, the BERC was established by the Bangladesh Energy Regulatory Commission Act, 2003 (Act No. 13 of 2003) as a neutral and independent commission for dealing with several issues  pertaining to power, energy  and mineral resources as detailed in the Act.  After the establishment of the BERC under the Act No. 13 of 2003, it has engaged itself in its statutory duties and responsibilities including holding of public hearing in respect of proposed enhancements of tariff for electricity and other such charges. The BERC is the only such statutory body in the energy sector of the country. Anyway, the Chairman and the Members of the BERC in the past were appointed by the President following the procedure that applications were first invited by the Ministry of Power, Energy and Mineral Resources from qualified candidates through public advertisements in various national dailies. Those advertisements detailed the qualifications required for the appointment   and also mentioned the salaries and other benefits and allowances of the Chairman and the Members of the BERC. The second step was the formation of Selection Committees by the Administrative Ministry (Ministry of Power, Energy and Mineral Resources) and such Selection Committees consisted of the most prominent top brass of the Republic. Those Selection Committees forwarded the names of the suitable candidates to the President of the Republic through the Administrative Ministry for final appointment. But curiously enough, by the impugned Memo No. বিজ্বাখস(প্র-৩)/ বাএরেক/নিয়োগ (চেয়ারম্যান)-১৪/২০০৯ dated  11.10.2009,  the President through the Administrative  Ministry appointed the respondent no. 2 as the Chairman of the BERC under certain terms and conditions  enumerated therein without adhering to the said procedure.  However, as per Section 6(2) of the Act No. 13 of 2003, the Chairman and the Members of the BERC are its full-time officers. Their tenure, emoluments, seniority, removal etc. are all regulated by the relevant provisions of the Act No. 13 of 2003. Their offices are offices in the service of the Republic. Because of the absolute embargo imposed by Article 129(4) of the Constitution, the respondent no. 2 being an ex-Comptroller and Auditor-General of Bangladesh can not hold the office of the Chairman of the BERC.  So his purported appointment as the Chairman of the BERC and his holding of that office are without any lawful authority and void abinitio.
 
3.             In the Supplementary Affidavit dated 04.05.2010 filed on behalf of the petitioner, it has been averred that the petitioner was registered as a trust  with the office of the Sub-Registrar, Uttara, Dhaka on 30.07.2008 with the specific objects and purposes and under the terms and conditions mentioned in the deed of trust. An employment notice was published in the Daily New Age on 07.12.2003 by the Ministry of Power, Energy and Mineral Resources inviting applications from qualified and intending persons to fill up the posts of the Chairman and the Members of the BERC.
 
4.             In the Supplementary Affidavit dated 29.09.2010 filed on behalf of the petitioner, it has been stated that the Ministry of Power, Energy and Mineral Resources published an employment notice in the Daily Star on 19.08.2010 inviting applications from qualified and interested Bangladeshi citizens for appointment as Member  of the BERC.
 
5.             The respondent no.2 has contested the Rule by filing an Affidavit-in-Opposition. His case, as set out in the Affidavit-in-Opposition, in short, runs as follows:

The respondent no. 2 is not in the service of the Republic as the post of the Chairman of the BERC does not come within the scope/ambit of ‘the service of the Republic’ as defined in Article 152(1) of the Constitution. The Administrative Ministry issued the impugned Memo dated 11.10.2009 on behalf of the President of the Republic purely in exercise of  the executive power as mandated by Article 55(2) of the Constitution. The BERC is neither an Attached Department nor a Wing nor a Division of the Administrative Ministry and as such the Chairman is not in the service of the Republic. The Act No. 13 of 2003 contains explicit provisions regarding the mode of appointment of the Chairman and the Members of the BERC. The Act lays down that they shall be appointed by the President on the basis of the proposal of the Ministry of Energy, Power and Mineral Resources. This provision is unqualified and is not subject to any other condition. It is beyond the scheme of the Act No. 13 of 2003 that in appointing the Chairman and the Members of the BERC, neither any advertisement nor any recommendation to that effect by any Selection Committee is required. It is solely done by the executive authority of the State in exercise of its lawful power by the President considering the qualifications and competence of the aspirants as laid down in the Act itself. The procedure for appointment to the posts of the Chairman and the Members of the BERC has been left to the best judgment of the appointing authority and is, therefore, subjective in nature. The past practice of giving public advertisements in daily newspapers and formation of Selection Committees, in the absence of any statutory sanction, does not necessarily have any binding effect. The appointing authority is the best Judge of determining the method of appointment at any given point of time. Furthermore, the Writ Petition being in the nature of public interest litigation, no procedural legitimate expectation has accrued to the petitioner with regard to the deviation in the method of appointment. In the absence of any allegation of infringement or violation of any right inhering in the petitioner, the alleged deviation has not defeated any substantive legitimate expectation likely to accrue in his favour. By virtue of the definition of ‘the service of the Republic’ as given in Article 152(1) of the Constitution, the respondent no. 2 as the Chairman of the BERC can not be  said to be within the mischief of Article 129 (4) of the Constitution.  That being so, the impugned Memo dated 11.10.2009 is valid and lawful.  The appointment of the respondent no. 2 as the Chairman of the BERC is clearly in keeping with the provisions of the Act No. 13 of 2003. It goes without saying that the BERC is an independent and neutral regulatory body. The BERC is a bridge serving as a referee in between the Government, private sector and energy consumers.  The petitioner has not come up with the Writ Petition bonafide and with clean hands.  The daughter of the Chairman of the petitioner, namely, one Dr. Tureen Afroze used to serve as a panel lawyer of the BERC. Having been appointed as the Chairman of the BERC, the respondent no. 2 proceeded to review the tenure of its various personnel including that of the lawyers. On such review, the BERC decided to dispense with the service of Dr. Tureen Afroze. Against this backdrop, actuated by ill-will and malice, the Writ Petition has been filed. As such, the Writ Petition is not maintainable.
 
6.             In the Affidavit-in-Reply dated 24.05.2010 filed on behalf of the petitioner, it has been stated that Dr. Tureen Afroze was all through a brilliant student. She has been practising in the High Court Division since 2001. Since 2007, she has been involved with the rights and issues of energy consumers of Bangladesh. She was once engaged by the BERC to conduct the hearing of the Writ Petition No. 7159 of 2008 filed thereagainst vide its Memo dated 23.11.2008; but she declined to do so due to her personal  difficulties as is evident from her Memo No.LDA/BERC/2008/2 dated 20.11.2008. Afterwards the BERC sent another Memo being No. BEERC/Prosha-075/5696 dated 04.12.2008 to Dr. Tureen Afroze purportedly appointing her as a Counsel therefor, but she never accepted any brief, remuneration and emolument therefrom.  So the question of taking any decision of relieving her of the alleged duties to the BERC did not arise at all. The petitioner has filed the Writ Petition bonafide and not malafide. No malice or ill-will has prompted the petitioner to file the same. As the Writ Petition has been filed bonafide, it is very much competent.
 
7.             At the outset, Dr. Shahdeen Malik, learned Advocate appearing on behalf of the petitioner, submits that admittedly the respondent no. 2 is a former Comptroller and Auditor-General of Bangladesh, but he was appointed as the Chairman of the BERC by the impugned Memo No. বিজ্বাখস(প্র-৩)/ বাএরেক/নিয়োগ (চেয়ারম্যান)-১৪/২০০৯ dated 11.10.2009  in flagrant contravention of the provisions of Article 129(4) of the Constitution  and in that view of the matter, the appointment  of the respondent no. 2 as the Chairman of the BERC is without lawful authority.
 
8.             Dr. Shahdeen Malik next submits that as per Article 152(1) of the Constitution, ‘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 and the scheme of the Act No. 13 of 2003 clearly indicates that the office of the Chairman of the BERC is an office in the service of the Republic and as such the appointment  of the respondent no. 2 as the Chairman of the BERC  and his holding of that office are void abinitio.
 
9.             Dr. Shahdeen Malik next submits that the terms ‘Republic’ and ‘the service of the Republic’ as used in the Constitution have been extensively dealt with by the High Court Division in the case of Ruhul Quddus, Advocate and others .…Vs…Justice M. A Aziz and others reported in 60 DLR (HCD) 511 and having regard to the ‘ratio’ enunciated in that case, it is ex-facie clear that the service or post or office is not confined to the Executive Government only and in that view of the matter, the functionaries of the BERC including its Chairman are necessarily in the service of the Republic.
 
10.          Dr. Shahdeen Malik further submits that the BERC is a ‘statutory public authority’ as defined in Article 151(2) of the Constitution and it is independent and neutral in a limited sense inasmuch as according to the Act No. 13 of 2003, the Government gives all policy decisions and directives to the BERC within the parameters of which it has to work and it has no authority or jurisdiction to go beyond those parameters.
 
11.          Dr. Shahdeen Malik also submits that the Chairman of the BERC is appointed by the President under certain terms and conditions determined by him and a special procedure for removal of the Chairman of the BERC is laid down in the Act No. 13 of 2003 and following that procedure, the President may remove  the Chairman  and such being the position, the office of the Chairman of the BERC is an office  in the service of the Republic.
 
12.          Dr. Shahdeen Malik further submits that to deal with the energy resources of the Republic is essentially a function  of the Government of Bangladesh and the BERC being empowered by the Parliament  to deal with some of the aspects and functions in  relation  to the energy  resources of  Bangladesh is performing  functions which are  clearly and obviously ‘in respect  of the Government  of Bangladesh’  as  gas (a mineral) is vested in the Government as provided by Article 143 of the Constitution and therefore the office of the Chairman of the BERC is, no doubt, an office in the service of the  Republic.
 
13.          Dr. Shahdeen Malik next submits that the functions which are now being performed  by the BERC under the Act  No. 13 of 2003  were performed directly by the Government through the relevant Ministry;  but the Parliament  in its wisdom  thought it  expedient and desirable  to entrust those functions to an independent body to ensure accountability  and public/private involvement in regulating  the energy sector and mere establishment  of the BERC to that effect does not mean that the Government has completely divested itself  of its sovereign and  executive rights and power over mineral resources such as gas in that the BERC can not dilute the power and  authority  of the Republic under Article 143 of the Constitution.
 
14.          Dr. Shahdeen Malik also submits that Section 58 of the Act No. 13 of 2003 authorizes the Government to frame rules for the fulfillment of the objectives of the Act and Section 24 thereof provides for the powers and functions of the Government in regulating the energy sector of the country and that being so, the functions of the BERC are functions in relation to and in respect of the Government of Bangladesh.
 
15.          Dr. Shahdeen Malik also submits that the present case is quite distinguishable from that of Aminul Haque Helal (Md)…Vs… Justice Sultan Hossain Khan and others reported in 11 BLC (HCD) 339 where the appointment of the Chairman of the Anti-Corruption Commission (ACC) was by a Selection Committee chaired by a Judge of  the Appellate Division and other Members of the Selection Committee consisted of a Judge of the High Court Division,  Comptroller and Auditor-General  of Bangladesh, Chairman of the Public Service Commission and the last retired Cabinet Secretary and it was rightly held that as the committee selected the Chairman of the ACC, the Government  did not  control  or influence his selection and  he is removable  in the manner prescribed in Article 96 of the Constitution which ensures that the Government  does neither control nor exercise any influence in removing the  Chairman of the ACC and in this perspective, the post of the Chairman  of the ACC was not deemed to be in the service of the Republic.
 
16.          Dr. Shahdeen Malik further submits that the fund of the BERC has been created as per Section 17 of the Act No. 13 of 2003 and it is a public fund and the BERC is not the owner of that fund which is fortified by Section 17(4) of the Act and this aspect of the case can not be disregarded at all and this is a pointer to the fact that the office of the respondent no. 2 is  an office in the service of the Republic.
 
17.          Dr. Shahdeen Malik also submits that the necessity of giving public advertisements in daily newspapers and formation of Selection Committees for appointment of competent persons to the posts of the  Chairman and the Members of the BERC stems from the language of the relevant  provisions  of the Act No. 13 of 2003, but the President, through the Ministry of Power, Energy and Mineral Resources, without complying  with the procedure, appointed the respondent no. 2 as the Chairman of the BERC in a clandestine and non-transparent manner.
 
18.          Dr. Shahdeen Malik lastly submits that the petitioner has brought the Writ Petition bonafide and not malafide and as per Article 102 (2) (b)(ii) of the Constitution, any person can come up with a writ of quo warranto provided he has bonafide  intention in bringing the same and  this is why, the  Writ Petition is very much competent.  
 
19.          Per contra, Mr. M. Amir-Ul Islam, learned Advocate appearing on behalf of the respondent no. 2, submits that the Writ Petition has been filed with a view to challenging the constitutional validity  of the appointment of the respondent no. 2 as the Chairman of the BERC primarily on the ground that the respondent no. 2 is a former Comptroller and Auditor-General of Bangladesh  and as such he is not eligible for holding any  further office in ‘the service of the Republic’ as postulated by Article 129(4) of the Constitution.
 
20.          Mr. M. Amir-Ul Islam  further submits that Article 152(1) of the Constitution  provides that ‘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 and evidently there are two categories  which may be recognized as the service of the Republic, one which falls within the definition of  service in respect of the Government and the other category  which may be declared by law to be treated as  service of the Republic and since there is no such declaration under the law (Act No. 13 of 2003),  it is important to consider  the words  ‘in respect of the Government of Bangladesh’  as  used in  the definition of ‘the service of the Republic’ given in Article 152(1) of the Constitution and the scheme of the Act does not indicate that the respondent no. 2  is  performing  functions in respect of the Government of Bangladesh.
 
21.          Mr. M. Amir-Ul Islam further submits that  it is  a case  not only of absence  of such a declaration as contemplated by the definition of ‘the service of the Republic’ in Article 152(1),  there is,  on the other hand, a declaration in the reverse direction prominently  displayed in the long title of the law (Act No. 13 of 2003) itself proclaiming the object of the law to make the BERC an independent and neutral body and the all-important question in this case is whether this Court  can treat the office of the Chairman of the BERC  as an office in ‘the service of the Republic’ ignoring a declaration by the Parliament  otherwise.
 
22.          Mr. M. Amir-Ul Islam  also submits that the Constitution defines the term ‘the State’ in Article 152(1) which includes Parliament, Government and Statutory  Public Authorities and the term ‘the State’ is a genus  which has  three species, namely, Parliament, Government and  Statutory Public Authorities and this definition by identifying ‘Statutory Public Authorities’ separately from ‘the Government’ itself indicates that Statutory Public Authorities are not part of the ‘Government’ both being two distinct species of the genus ‘the State’  and by that reason, the Chairman of the BERC  (a Statutory Public Authority) can not be said to be in ‘the service of the Republic.’
 
23.          Mr. M. Amir-Ul Islam further submits that the BERC is an independent and impartial regulatory body for the energy sector and in view of the preamble of the Act No. 13 of 2003, it is crystal clear that the functions and responsibilities of the BERC as detailed in the said Act are to be performed independently, impartially and neutrally  by the Chairman and the Members of the BERC in the relevant fields and regard being had to the independent, impartial and neutral character of the BERC,  its Chairman (respondent no. 2) can not be regarded as a person in the service of the Republic.
 
24.          Mr. M. Amir-Ul Islam also submits that the respondent no.2 does not hold the office of the Chairman of the BERC under the ‘pleasure doctrine’ of the President and the independence of the office of the Chairman has been achieved through legal protection to the tenure of his office and through establishing an exhaustive list of grounds for removal which are internationally acceptable and according to Section 11 of the Act No. 13 of 2003, the Chairman of the BERC can not be removed at the sweet will of the President and since  the  ‘pleasure doctrine’ of the President   is not applicable  as to his removal, his office is not an office in  the service of the Republic.
 
25.          Mr. M. Amir-Ul Islam next submits that the BERC is not funded by the Consolidated Fund of the State, but by its  own fund known as “Bangladesh Energy Regulatory Commission Fund” under Section 17 of the Act No. 13 of 2003  and that Section provides that the pay and allowances etc.  of Members and employees shall be paid  and all other expenditures of the BERC shall be borne out of this Fund and  this being the state of affairs, it necessarily follows  that the Chairman of the BERC (respondent no. 2)  is not in the service of the Republic.
 
26.          Mr. M. Amir-Ul Islam also submits that Section 55 of the Act No. 13 of 2003 provides that any decision or order given by the BERC under the Act or the rules or the regulations made thereunder shall be deemed  to be final and  in consequence, the same is not subject to review by any authority (excepting judicial review)  which clearly  demonstrates  the independent  and separate character of the BERC from the Government and in this perspective, the office of the Chairman of the BERC  is not an office in the service of the Republic.
 
27.          Mr. M. Amir-Ul Islam further submits that Section 26 of the Act No. 13 of 2003 lays stress on the independent and distinct existence of the BERC  from the Government providing that in case of difference of opinion or dispute between the BERC and the Government on any matter,  the Government shall discuss the same with the BERC and if necessary, the Government shall resolve the difference of opinion or the dispute with the assistance  of experienced professionals and this is how the Act No. 13 of 2003 makes a clear dividing  line between the Government and the BERC  leading us to conclude that the respondent no. 2 is not holding any office in the service of the Republic.
 
28.          Mr. M. Amir-Ul Islam also submits that the Act No. 13 of 2003 distinguishes  and differentiates  the BERC  from Government Authority and Local Authority as defined  in  Section 2 of the Act and since the BERC is  neither a Government  Authority  nor a Local Authority as per Section 2, logically it follows that it is not part of the  Executive Government or any Local  Government authority and  from this standpoint, the respondent no. 2 is not in the service of the Republic.
 
29.          Mr. M. Amir-Ul Islam  next submits that according to Article 129(4) of the Constitution on ceasing to hold office, the Comptroller and Auditor-General shall not be eligible for further office in the service  of the Republic, and to construe  the meaning of ‘further office’, the principle of ‘ejusdem generis’ is to be applied  meaning thereby that on ceasing  to hold office, the respondent no.2  shall not be  eligible  for further office in any constitutional post  and admittedly the post of the Chairman of the BERC is not a constitutional post and from this point of view, the constitutional validity of the appointment of the respondent no. 2 as the Chairman of the BERC can not be challenged by the petitioner.
 
30.          Mr. M. Amir-Ul Islam also submits that the Writ Petition has been brought by the petitioner not in vindication of any public right but for vindication of a coterie right and as the Writ Petition has been filed  malafide and out of oblique motives,  it is incompetent.
 
31.          Mr. Korunamoy Chakma, learned Deputy Attorney-General appearing on behalf of the respondent no. 1, adopts the submissions advanced by Mr. M. Amir-Ul Islam.
 
32.          We have heard the submissions of the learned Advocate Dr.  Shahdeen Malik and the counter-submissions of the learned Advocate Mr. M. Amir-Ul Islam and perused the Writ Petition, Supplementary Affidavits, Affidavit-in-Opposition, Affidavit-in-Reply and relevant Annexures annexed thereto.
 
33.          Article 102(2)(b)(ii) of the Constitution provides that on the application of any person,  the High Court Division  may inquire whether a person holding or  purporting to hold any public office  is holding it under a legal authority. This is a jurisdiction to issue writ in the nature of quo warranto. This writ is used to ensure that no one can hold any public office without having a valid claim to that office.
 
34.          The writ of quo warranto lies “against a person who claimed or usurped an office, franchise or liberty, to inquire by what authority he supported his claim, in order that the right to the office or franchise might be determined. It also lies in cases of non-user, abuse, or long neglect of a franchise.” (Halsbury- Laws of England, 4th Edition, Volume 1, Paragraph, 169)
 
35.          Broadly speaking, the quo warranto proceeding affords a judicial inquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the higher judiciary to control executive actions in making appointments to public offices against the relevant constitutional or statutory provisions. It also protects a citizen from being deprived of a public office to which he may have a right. (University of Mysore v. Govinda Rao, AIR 1965 SC 491)
 
36.          In order that the writ of quo warranto may issue, the office must be a public office of a substantive character created by the Constitution, statute or statutory power. A public office is a right, authority and duty, created and conferred by law, by which an individual is vested with some portion of the sovereign functions of the Government to be exercised by him for the benefit of the public, for the term and by the tenure prescribed by law and thus it is an office in which the public have interest. The expression ‘substantive character’ means that the holder of the office must be an independent official and not merely one discharging the function as a deputy or servant at the will and pleasure of others. But the writ will lie in respect of an office held at pleasure, provided that the office is one of a public and substantive character.
 
37.          The writ of quo warranto will issue where there is a clear violation of any constitutional provision or any provision having the force of law as distinguished from an administrative instruction in entering or holding the public office. A person will be found to hold the public office without lawful authority if he is not qualified to hold the office or some mandatory provision of law which can not be cured as an ‘irregularity’ has been violated in making the appointment or in entering the office or when the appointment has been made by a person who had no authority to appoint.
 
38.          Article 102 (2) of the Constitution does not require that the applicant for a writ of quo warranto must be an aggrieved party. Any person may apply as the inquiry relates to a matter in which the public are interested. Any member of the public acting in good faith whose conduct does not disentitle him to an equitable relief may apply for the writ of quo warranto without showing any violation of his legal right. The relief is discretionary and hence in an application for quo warranto, it is legitimate for the Court to examine the bonafides or good faith of the applicant. Where the applicant is found to have an ulterior motive, or is not playing his own game and has filed the writ petition not for vindication of any public right or for redress of any public wrong, no relief will be granted.    
 
39.          In the case of Md. Idrisur Rahman …Vs… Md. Shahid Uddin Ahmed and others; 19 BLD(HCD)291, it has been held that any citizen of the State can maintain an application in the nature of quo warranto if  he finds that anybody is holding any public office in flagrant violation of any constitutional provision or any other law (paragraph-9). 
 
40.          The upshot of the above discussion is that any member of the public acting in good faith whose conduct does not disentitle him to the equitable relief of quo warranto may apply to the High Court Division without showing any violation of his legal right. 
 
41.          It is on record that Dr. Tureen Afroze is the daughter of the Chairman of the petitioner and once by the Memo No. বিইআরসি/প্রশা-০৭৫/৫৫৩৩ dated 13.11.2008, she was appointed as a Panel Lawyer on a retainer of Taka 1000/- per mensem and she declined to work by her letter dated 20.11.2008. Of course, the earlier Memo dated 13.11.2008 was subsequently modified by the Memo No বিইআরসি/প্রশা-০৭৫/৫৬৯৬ dated 4th December, 2008. By the Memo dated 04.12.2008, the BERC decided that the monthly retainer  would not be provided to her; but if she renders any legal assistance to the BERC, a reasonable honorarium  may be given to her through mutual negotiations and as per prevalent rate. These correspondences have been marked Annexure-‘H’ series to the Affidavit-in-Reply.
 
42.          It transpires that the Annexure-‘H’ series are prior to the issuance of the impugned Memo dated 11.10.2009. The petitioner has challenged the constitutional validity of the appointment of the respondent no. 2 as the Chairman of the BERC under the said Memo dated 11.10.2009. Since the Annexure-‘H’ series are prior to the impugned Memo dated 11.10.2009, it can not be said that the father of Dr. Tureen Afroze (Chairman of the petitioner) was actuated by any ill- will or malice in coming up with the Writ Petition.
 
43.          There is no gainsaying the fact that Dr. Tureen Afroze had some relationship with the BERC before the appointment of the respondent no. 2 as its Chairman. This relationship with the BERC at some point of time, as we see it, can not be construed to disentitle the petitioner to come up with the Writ Petition. Given this scenario, we hold that the Writ Petition is maintainable.
 
44.          At this juncture, the most important question is whether the office of the Chairman of the BERC is an office in the service of the Republic. The other pertinent question is whether the respondent no. 2 was appointed as the Chairman of the BERC in violation of the provisions of Article 129(4) of the Constitution. These are very vital questions to be answered either in the affirmative or in the negative for proper and effectual adjudication of the Rule.
 
45.          In the case of Ruhul Quddus, Advocate and others …Vs…Justice M. A Aziz and others reported in 60 DLR (HCD) 511, it has been held in paragraphs 254, 255 and 256:

২৫৪. এখানে আরও উল্লেখ্য যে , ‘প্রজাতন্ত্রের খল-হ এই শব্দদ্বয়ের সংজ্ঞা ভারতীয় সংবিধানের ন্যায় কোন বিশেষ অধ্যায়ের সহিত সংযুক্ত করা হয় নাই বরং সংবিধানের শেষ পর্যায়ে সাধারণ ভাবে প্রদান করিয়াছে । ফলে  উক্ত সংজ্ঞা কোন বিশেষ অধ্যায়ে বর্ণিত শব্দের সংজ্ঞা হিঢ়েলয পরিচিত হইবে না । বরং সকল অধ্যায়ের লৎলণঈ সার্বঝব£ব হিসেবে প্রশেবঝণ্ঠ হইবে। সেইক্ষেত্রে সংবিধানের ১, ২, ৭(১), ২৯(১) (২), ৫৯, ৬০ ইত্যাদি বিভিন্ন অনুচ্ছেদে উপস্থিত ‘প্রজাতন্ত্র’ শব্দটির ব্যাপকতা স্মরণ রাখিতে হইবে এবং সেই প্রেক্ষাপটে ‘কর্ম’ কথাটির অর্থ সংবিধানের বিভিন্ন ভাগে এমনকি অনুচ্ছেদে বিভিন্নরুপ হইবে। সেই কারণে স্পষ্টতঃ ‘প্রজাতন্ত্রের কর্ম’ শব্দদ্বয়ের মধ্যে ‘কর্ম’ কথাটি ‘প্রজাতন্ত্র’ কথাটির ব্যাপ্তি ও ঢ়বয-ঝব£বধব কখনও সীমিত বা ঢ়খিমভছধ করেনাু বরঞ্চ সংবিধানের বিভিন্ন অংশের প্রেক্ষাপটে যণ্ঠযয়ক্ষ্মধ  ‘প্রজাতম’¿ শব্দটির প্রকৃত আঙ্গিকে ওকর্মহ কথাটির অর্থ অবম্ফবযব করিতে হইবে। অর্থাৎ ‘কর্ম’ শব্দটি ‘প্রজাতন্ত্র’ শব্দকে নিয়ন্ত্রণ করেনা, বরং ‘প্রজাতন্ত্র’ শব্দটি ‘কর্ম’ শব্দকে নিয়ন্ত্রন কষে। এই কারণেই ‘প্রজাতন্ত্রেষ কর্মে’ শব্দদ্বয় সংবিধানের নবম ভাগে ব্যবহার করতঃ সরকারি কর্মচারী বুঝাইয়াছে । কিন্তু ঐ একই শব্দ ৯৯ ও ১১৮(৩) অনুচ্ছেদে ব্যযয়ক্ষ্মধ হইয়া যথাক্রমে বিচারক বা নির্বাচন কমিশনারের সমপর্যায়ভুক্ত বা উপরস্থ বা ১৪৭(৪) অনুচ্ছেদে বর্ণিত কর্ম, চাকুরী বা পদ বুঝাইতেছে, কিন্তু সেক্ষেত্রে কখনই সরকারি কর্মচাষ£ বা তাহাদেষ  কর্ম বুঝাইতেছে না। প্রেক্ষাপট বা পড়হঃবীঃ পরিবর্তনের সংগে সংগে প্রজাতন্ত্রেষ ‘কর্ম’ শব্দটির অর্থের ও ব্যাপকতার পরিবর্তন ঘটিতেছে, তাহা অনুধাবণ করিতে হইবে।
২৫৫. তাহাছাড়া, সংশ্লিষ্ট পেক্ষাপটের আলোকে ‘প্রজাতন্ত্র’ শব্দটির প্রকৃত অর্থ উপলব্ধি করিতে হইবে।
 
“a word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and the time in which it is used.” (Justice Holmes in Towne vs Esner, 1917).
 
এই কারণেই নবম ভাগে উপরোক্ত শব্দদ্বয় যণ্ঠযয়ক্ষ্মধ হইলে নির্বাহী সরকাষে নিয়োগ প্রাপ্ত কর্ম, চাকুরী বা পদ বুঝাইবে । কিন্তু ষষ্ঠ  ও সপ্তম ভাগে উক্ত শব্দদ্বয় যণ্ঠযয়ক্ষ্মধ হইলে ১৪৭(৪) অনুচ্ছেদে বর্ণিত পদ সমূহ বুঝাইবে।
 
২৫৬. তাহাছাড়া, ‘প্রজাতন্ত্রের কর্ম’ কথাটির ব্যাখ্যায় বাংলাদেশ সরকার শব্দদ্বয়ের পর ‘সংক্রান্ত’ শব্দটি বসান হইয়াছে। ইংরেজি ভাষায়  ‘Government of Bangladesh’ কথাগুলির পূবে ‘in respect of’ শব্দগুলি বসান হইয়াছে। ইহাতে প্রতীয়মান হয় যে, সংশ্লিষ্ট কর্ম, চাকুরী বা পদ শুধুমাত্র সরকারেই নয় , সরকার সম্পর্কিত সকল প্রকার কর্ম, চাকুরী বা পদ বুঝাইবে। ইহাতেও প্রতীয়মান হয় যে, উক্ত কর্ম, চাকুরী বা পদ (service, post or office) শুধুমাত্র ভবর্যাহী সরকারে সীমাবদ্ধ নয়। ইহার আরও ব্যাপক ভিত্তি ও ব্যবহার রহিয়াছে শবয়ব সংবিধানের বিভিন্ন অংশে ব্যক্ত সংশ্লিষ্ট প্রেক্ষাপট অনুসারে অর্থ বুঝিতে হইবে.
 
46.          In the case of Aminul Haque Helal (Md)…Vs… Justice Sultan Hossain Khan and others reported in 11 BLC (HCD) 339, it has been held in paragraph 12:
 
“12. This Court in the case of Abu Bakar Siddique vs Justice Shahabuddin Ahmed and others considered the meaning and ambit of the expression ‘the service of the Republic’ and also in the case of Shamsul Huq Chowdhury vs Justice Mohammad Abdur Rouf where similar arguments were advanced that they render service towards the Republic and get their remunerations from the Public Exchequer and, therefore, they hold office in the service of Republic. A Division Bench of this Court rejected the contentions holding that Judges of the Supreme Court are not holding any office of profit in the service of Republic under Part IX of Chapter 1 of the Constitution. In that case, this Court also considered the case of Abdus Shukur vs Rikab Chand reported in 1958 AIR 52 and another decision at page 937 of the same report. The case of the Guru Gobinda Basu vs Sankari Proshad Ghosal, reported in AIR 1964(SC) 254 was also considered. In those decisions, the point as to the service of the Government of India was argued and it was held that the decisive tests in the matter of appointment in the service of the Government are generally five in number:
Government must be maker of appointment of the persons. 
The authority has got the right to remove the holders of office.
Government must pay remuneration to them from the Public Exchequer.
The holders of office must perform duties for the Government.
The Government has control over the performance of the duties of the holders of office. 
It was held in the case of Guru Gobinda Basu vs Sankari Prasad Ghosal and others reported in AIR 1964 (SC) 254 that for holding an office of profit under the Government, one need not be in the service of Government and there need be no relationship of master and servant between them. The Constitution itself makes a distinction between the holder of an office of profit under the Government and the holder of a post or service under the Government. The Constitution has also made a distinction between the holder of an office of profit under the Government and the holder of an office of profit under a local or other authority subject to the control of the Government. The decisive test for determining whether a person holds any office of profit under the Government is the test of appointment. It is not correct to say that the several factors which enter into the determination of this question–the appointing authority, the authority vested with power to determine the appointment, the authority which determines the remuneration, the source from which the remuneration is paid, and the authority vested with power to control the manner in which the duties of the office are discharged and to give directions in that behalf must all co-exist and each must show subordination of the Government and that if one of the elements is absent, the test of a person holding an office under the Government, Central or State, is not satisfied. The circumstance that the source from which the remuneration is paid is not from public revenue is a neutral factor not decisive of the question. Whether stress will be laid on one factor or the other will depend on the facts of each case. However, where the several elements, the power to control and give directions as to the manner in which the duties of the office are to be performed, and the power to determine the question of remuneration are all present in a given case, then it must be held that the officer in question holds the office under the authority so empowered.”
 
47.          It is an indisputable fact that the respondent no. 2 is a former Comptroller and Auditor-General of Bangladesh. Needless to say, he was a constitutional office-holder before his appointment as the Chairman of the BERC under the impugned Memo dated 11.10.2009. Article 129(4) of the Constitution contemplates that on ceasing to hold office, the Comptroller and Auditor-General shall not be eligible for further office in the service of the Republic.
 
48.          Now let us have a look at the debarring clauses, if any, in respect of employment of other constitutional functionaries after expiry of their terms.
 
49.          Article 139(4) of the Constitution  provides  that on ceasing to hold office, a Member of a Public Service Commission shall not be eligible for further employment in the service of the Republic, but, subject to the provisions of clause (1)-(a)  a Chairman so ceasing shall be eligible for re-appointment for one further term; and (b) a Member (other than the Chairman) so ceasing shall be eligible for re-appointment for one further term or for appointment as Chairman of a Public Service Commission.
 
50.          Article 99(1) of the Constitution provides that except as provided in clause(2), a person who has held office as a Judge otherwise than as an Additional Judge shall not, after his retirement or removal therefrom, plead or act before any court or authority or hold any office of profit in the service of the Republic not being a judicial or quasi-judicial office or the office of Chief Adviser or Adviser.
 
51.          Article 99(2) of the Constitution contemplates that a person who has held office as a Judge of the High Court Division may, after his retirement or removal therefrom, plead or act before the Appellate Division.
 
52.          Article 118(3) of the Constitution  postulates  that subject to the provisions of the Constitution, the term of office of an Election Commissioner shall be five years from the date on which he enters upon his office, and a person who has held office as Chief Election Commissioner shall not be eligible for appointment in the service of the Republic and any other Election Commissioner shall, on ceasing  to hold  office as such, be eligible for appointment as Chief Election Commissioner but shall not be otherwise eligible for appointment in the service of the Republic.  
 
53.          So it is seen that the Legislature has not used any uniform clause debarring the constitutional functionaries from appointment or holding any office in the service of the Republic after expiration of their terms. Precisely speaking, the language of the debarring clauses is not identical; but the inner spirit of the language seems to be more or less one and the same.
 
54.          Article 152(1) of the Constitution provides that ‘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. Again Article 152(1) of the Constitution defines ‘the Republic’ as the People’s Republic of Bangladesh. It is worthy of notice that the service of the Republic does not mean any service, post or office whether in a civil or military capacity in the service of the Government of Bangladesh. But it means any service, post or office whether   in a civil or military capacity in respect of the Government of Bangladesh. The term ‘service in respect of the Government of Bangladesh’ is undoubtedly wider and more comprehensive than the term ‘service in the Government of Bangladesh.’  
 
55.          Part IX of the Constitution deals with the services of Bangladesh. Apart from Part IX, there are other services like the defence services (Chapter IV of Part IV) and judicial service (Chapter II of Part VI) which are also services of the Republic. In other words, the defence personnel and judicial officers are in the service of the Republic, though Article 133 of the Constitution is not applicable to them. So Part IX of the Constitution, we are led to hold, is not all-inclusive about the services of Bangladesh.
 
56.          Article 152(1) of the Constitution envisages that “the State” includes Parliament, Government and Statutory Public Authorities. It transpires that Mr. M. Amir-Ul Islam has rightly submitted that the State is a genus and Parliament, Government and Statutory Public Authorities are three species of that genus. In this context,  a vital question  crops up: whether the Secretary and other functionaries manning the Parliament (excepting the Speaker and Members of Parliament) and the functionaries manning Statutory Public Authorities are persons in the service of the Republic or not?
 
57.          A Statutory Public Authority as defined in Article 152(1) of the Constitution means any authority, corporation or body the activities or the principal activities of which are authorized by any Act, ordinance, order or instrument having the force of law in Bangladesh. It is an admitted fact that the BERC has been established under the Act No. 13 of 2003 and its activities are authorized thereunder.  So the BERC is a Statutory Public Authority. 
 
58.          In the case of the Secretary, Ministry of Finance…..Vs….Md. Masdar Hossain and others reported in 52 DLR (AD) 82, it has been held in paragraph 27:
 
“27. We shall answer what is meant by “Government” in the definition of “the service of the Republic” by taking note of the fact that the Constitution uses that word both in the sense of Executive Government and in a generic sense. Chapters I, II, IIA and III of Part IV use the word in the sense of Executive Government. But Chapter II of Part V. “Legislative and Financial Procedure” uses the word “Government” in a generic sense, meaning the Republic as a whole. Part IX is concerned with “the Services of Bangladesh”, not just one service. In the definition of “the service of the Republic”, a broad distinction has been drawn between civil service and military service. All those who are civilian public officers are entitled to the protection of Article 135. The Constitution in Article 152(1) defines “public officer” as “a person holding or acting in any office of emolument in the service of the Republic”. Persons appointed to the Secretariat of Parliament and the Staff of the Supreme Court, although governed by separate terms and conditions of service, are entitled to the protection of Article 135 because they are public officers holding or acting in an office of emolument in the service of the Republic. They are not in the executive administrative service of the Executive Government of Bangladesh, but broadly, and in a generic sense, in a service in respect of the Government of Bangladesh. The definition of “the service of the Republic” uses the word “Government” in a generic sense. Hence on that ground, the members of the judicial service can not be excluded from the ambit of “the service of the Republic”.
 
59.          It is admitted by the parties that the service of the BERC has not been declared by the Act No. 13 of 2003 to be a service of the Republic as per the definition of ‘the service of the Republic’ in Article 152(1) of the Constitution. In the absence of such a declaration, we are to scrutinize the scheme and the relevant provisions of the Act No. 13 of 2003 to arrive at a correct decision as to whether the respondent no. 2 is holding any office in the service of the Republic.
 
60.          Mr. M. Amir-Ul Islam has drawn our attention to the long title and  the preamble of the Act No. 13 of 2003. The long title is to the effect that it is an Act to make provisions for the establishment of an independent and impartial regulatory commission for the energy sector. The preamble indicates that  it is expedient to make  provisions for the establishment  of an independent and impartial  regulatory commission  to create an atmosphere conducive to private investment in the generation of  electricity,  and  transmission,  transportation and marketing of gas resources and petroleum  products,  to ensure transparency  in the management, operation and tariff determination in these sectors; to protect consumers’ interest and to promote  the creation of a competitive market. It is obvious from the long title and the preamble of the Act No. 13 of 2003 that the BERC is an independent and impartial regulatory body.  It is a statutory public body short of a constitutional body.
 
61.          In Section 2 of the Act No. 13 of 2003, ‘energy’ has been defined as electricity, gas and petroleum product. As per that Section (Section 2), ‘Government Authority’ means the Power Development Board established by the Presidential Order, the Rural Electrification Board established under the Rural Electrification Act, the Dhaka Power Supply Authority established under the DESA Act and any other organization fully owned by the Government and ‘Local Authority’ means the local government authority constituted under a statute for the fulfillment of the purpose of Article 59 of the Constitution. Hence it is abundantly clear that the BERC is neither a ‘Government Authority’ nor a ‘Local Authority’ as defined in Section 2 of the Act. But it should be borne in mind that the term “Government Authority” has been given a very restricted meaning in Section 2. This restricted meaning of the term ‘Government Authority’, according to us, can not place the functions of the BERC outside the ambit of those in respect of the Government of Bangladesh. Moreover, as per Section 27(2) of the Act No. 13 of 2003, the BERC is a licensing authority of those Government Authorities for the purposes of the Act.
 
62.          In view of non-obstante clause in Section 3 the Act No. 13 of 2003, it is an overriding law. Section 6(2) of the Act provides that the Chairman and the Members shall be appointed by the President on the basis of the proposal of the Ministry (Ministry of Power, Energy and Mineral Resources) and they shall be full-time officers of the BERC. As per Section 6(4), the Chairman shall be the Chief Executive of the BERC. Section 10 provides that the status, pay and allowances, seniority and other terms of the Chairman and the Members of the BERC shall be determined by the prescribed rules provided that until such rules are framed, those shall be determined by the Government.  The procedure for removal of a Member of the BERC on certain specified grounds has been laid down in Section 11. Section 16(1) postulates that a Member of the Commission, without the written permission of the Government and any employee, without the written permission of the BERC, shall not engage himself or continue in any profitable pursuit outside the BERC. It may be recalled that ‘Member’ means any Member of the BERC including its Chairman as is evident from the definition clause (Section 2).
 
Section 17 of the Act No. 13 of 2003 is as follows:
 
“17. Funds of the Commission –
(1) There shall be a fund to be called “Bangladesh Energy Regulatory Commission Fund” and money, as mentioned below, shall be deposited in the Fund, such as:-
  • grant from the Government or statutory body;
  • loans borrowed by the Commission;
  • fees and charges deposited under this Act; and
  • money received from any other source.
(2) The amount of the Fund shall be maintained in the name of the Commission in any Scheduled Bank determined by the Commission, and procedure for withdrawal of money from the Bank is to be specified by regulation.
(3) The pay and allowances etc. of Members and employees shall be paid and all other expenditures of the Commission shall be borne out of this Fund.
(4) After meeting all expenses, any remaining unspent money of the Revenue budget shall be deposited to the Consolidated Fund.”
 
63.          Section 20(3) of the Act No. 13 of 2003 provides that apart from the audit  as mentioned in sub-section(2), the BERC, as a statutory public authority  within the meaning of the Comptroller and Auditor-General (Additional Functions) Act, 1974(XXIV of 1974), shall be under the jurisdiction of the Comptroller & Auditor-General.
 
64.          The functions of the BERC, amongst others, as per Section 22 of the Act No. 13 of 2003, are to extend co-operation and advice to the Government, if necessary, regarding electricity generation, transmission,  marketing, supply, distribution and storage of energy; to resolve disputes   between  licensees, and  between licensees and consumers, and refer those to arbitration, if considered necessary; and to perform any incidental functions, if considered appropriate by the BERC for the fulfillment of the objectives of the Act for electricity generation and energy transmission, marketing, supply, storage, efficient use, quality of services, tariff fixation and safety improvement.
 
65.          Chapter V of the Act No. 13 of 2003 deals with the relationship between the Government and the BERC. In this connection, Section 24 of the Act appears to be very material. However, Section 24 is reproduced below:
 
“24. Powers of the Government for the Energy Sector –
(1) The Government shall have the power of giving policy directives for the development and overall planning in energy sector.
(2) The Government, if necessary, shall issue any policy directive in consultation with the Commission.
(3) The Government shall make policies providing therein the scope for overall planning and co-ordination for the sake of development of energy sector giving priority to the need of energy for different socio-economic classes, and areas, and to achieve desired level of economic growth, and for conservation of energy as future sources of power.”
 
66.          Section 26 of the Act No. 13 of 2003 envisages that in case of difference of opinion or dispute arising out of any matter mentioned in the Act, the Government shall discuss the matter with the BERC, and if it appears necessary, the Government shall resolve the difference of opinion, or the dispute, as the case may be, with the assistance of experienced professionals. The consultative function of the Government and its ultimate resolution of the bone of contention, if any, between it and the BERC with the assistance of experienced professionals, as we see it, can not constitute any yardstick by which we can come to the conclusion that the Chairman of the BERC is not holding an office in the service of the Republic.
 
67.          Section 34(1) of the Act No. 13 of 2003 contemplates that notwithstanding anything contained in any other law for the time being in force, the price of power generation in wholesale, bulk and retail, and the supply of energy at the level of end-user, shall be determined in accordance  with the policy and methodology made by the BERC in consultation with the Government. Judging from this angle, the Government has a definite role in the matter and this role can not be whittled down at all.
 
68.          Section 61 of the Act No. 13 of 2003 mandates that the Chairman, Members, other officers and employees of the BERC shall be deemed to be public servants within the meaning of Section 21 of the Penal Code, 1860.
 
69.          From an overview of the scheme and various provisions of the Act No. 13 of 20003, we are led to hold that the BERC is an independent and impartial regulatory authority, albeit it has to function within the parameters of the policy directives of the Government. However, the finality of the decisions or orders of the BERC as contemplated by Section 55 of the Act No. 13 of 2003 can not in any way impel us to hold that the respondent no. 2 is not performing functions in respect of the Government of  Bangladesh. Besides, as conceded by Mr. M. Amir-Ul Islam, the decisions or orders of the BERC are subject to judicial review under Article 102 of the Constitution.
 
70.          As already found, the Chairman of the BERC is deemed to be a public servant within the meaning of Section 21 of the Penal Code as per Section 61 of the Act No. 13 of 2003. Indisputably the Government is the appointing authority of the Chairman. In view of the provisions of Section 10 of the Act No.13 of 2003, it is clear that the status, pay and allowances and other terms of the Chairman and the Members of the BERC shall be determined by the prescribed rules. But since no rules have been framed under Section 58 of the Act as yet, those of the Chairman and the Members of the BERC shall be determined by the Government. In the absence of any rules framed under Section 58, the terms and conditions  of the service of the respondent no. 2 have been determined by the Government as evidenced by the impugned  Memo dated 11.10.2009 (Annexure-‘D’ to the Writ Petition).
 
71.          The authority, or for that matter, the President is empowered to remove the respondent no. 2 from his office in accordance with the procedure laid down in Section 11 of the Act No. 13 of 2003. It has already been mentioned that the BERC is under the jurisdiction of the Comptroller and Auditor-General of Bangladesh within the meaning of the Comptroller and Auditor-General (Additional Functions) Act, 1974 (Section 20(3) of the Act No. 13 of 2003). So in this respect, the Comptroller and Auditor-General controls the BERC, though on a limited scale. It is a stunning fact that the respondent no. 2, being  a former Comptroller and Auditor-General of Bangladesh,  joined the office of the Chairman of the BERC on the basis of the impugned Memo dated 11.10.2009 without any qualms.
 
72.          Undeniably, the pay and allowances of the Chairman and the Members and other employees of the BERC are paid and all other expenditures are met from the Bangladesh Energy Regulatory Commission Fund. Sub-Section (4) of Section 17 of the Act No. 13 of 2003, as adverted to earlier, contemplates that after meeting all expenses, any remaining unspent money of the Revenue Budget shall be deposited to the Consolidated Fund. The Bangladesh Energy Regulatory Commission Fund, inter alia, comprises grants from the Government of Bangladesh.  As such, the grants from the Government form part of the Bangladesh Energy Regulatory Commission Fund. What we are driving at boils down to this: For all practical purposes, the Bangladesh Energy Regulatory Commission Fund has its origin from diverse sources including grants from the  Government. In such a posture of things, the pay, allowances and other financial benefits of the Chairman of the BERC are not solely dependent on the charges, money etc. received from other sources.
 
73.          Article 134 of the Constitution provides that except as otherwise provided by it, every person in the service of the Republic shall hold office during the pleasure of the President. So it seems that the ‘pleasure doctrine’ of the President is not absolute, but qualified. A person who holds any civil post in the service of the Republic is entitled to the protection afforded by Article 135 of the Constitution. Like judicial officers or other public servants, the respondent no. 2 is subject to the ‘pleasure doctrine’ of the President, even though he is entitled to the protection of Article 135 of the Constitution.
 
74.          The BERC being a statutory public authority is one of the species of the genus ‘the State’.  Parliament is another species of that genus. Parliament is a constitutional body, but its officers including the Secretary to Parliament and employees are in the service of the Republic. They are holding posts in respect of the Government of Bangladesh. Judicial Officers are also holding posts in respect of the Government of Bangladesh.
 
75.          The Judicial Administration Training Institute (JATI) is the creation of the Judicial Administration Training Institute Act, 1995. The JATI, like the BERC, is a statutory public authority. It is axiomatic that the officers and employees of the JATI are performing functions in respect of the Government of Bangladesh and in this view of the matter, they are in the service of the Republic. In Masder Hossain’s case (52 DLR (AD) 82), the term ‘Government’ appearing in the definition of the ‘service of the Republic’ in Article 152(1) of the Constitution has been used in a generic sense and not in the sense of the Executive Government alone.
 
76.          Members of Parliament, Speaker, Judges of the Supreme Court, Election Commissioners, Chairman and Members of the Public Service Commission, Comptroller and Auditor-General, Ministers, President of the Republic etc. are all constitutional functionaries. In the case of Shamsul Huq Chowdhury …Vs…Justice Md. Abdur Rouf and others; 49 DLR(HCD) 176, it has been enunciated that there is no reasonable ground to hold that a Judge of the Supreme Court is in the service of the Republic. Following this ‘ratio’, we can say that all other constitutional functionaries including the Comptroller and Auditor-General of Bangladesh are not in the service of the Republic. As such, we can not subscribe to the view taken in the decision in the case of Ruhul Quddus, Advocate and others…Vs… Justice M. A. Aziz and others (60 DLR (HCD)511)  that the persons specified  in Article 147(4) of the Constitution are also in the service of the Republic.
 
77.          The Constitution is the ‘suprema lex’ of the country. As per Article 116A of the Constitution, judicial officers are independent in the discharge of their judicial functions. In spite of their independence, they have been found to be in the service of the Republic. Similarly the functional independence of the Chairman of the BERC can not stand in the way of his being a person in the service of the Republic. 
 
78.          The President can remove the respondent no. 2 from his office on certain specified grounds following a special procedure as laid down in Section 11 of the Act No. 13 of 2003.  The constitutional guarantee of Article 96 of the Constitution is absent in Section 11 of the said Act. Besides, the respondent no. 2 is not on a par with any constitutional incumbent.
 
79.          The Bangladesh Supreme Court (High Court Division) Employees (Discipline and Appeal) Rules, 1983 deal with the disciplinary proceedings of its officers and employees. The disciplinary proceedings taken against a major segment of public servants are under the relevant provisions of the Government Servants (Discipline and Appeal) Rules, 1985. Again, the officers and employees of Parliament have got separate Disciplinary Rules.  Given this context, we find that there is no uniform Disciplinary Rules applicable to all categories of public servants. There is no dispute about the proposition that all categories of public servants within the meaning of Section 21 of the Penal Code are in ‘the service of the Republic’. As adverted to earlier, the Chairman of the BERC is deemed to be a public servant within the meaning of Section 21 of that Code. This being the legal position, the respondent no. 2 has all the attributes of a person in the service of the Republic.
 
80.          Be that as it may, since the word ‘Government’ has been found to be  used in a generic sense in the definition of ‘the service of the Republic’  in Article 152(1) of the Constitution by the Appellate Division in Masder Hossain’s case, it is binding upon us in view of Article 111 of the Constitution.
 
81.          We are in full agreement with the submission of Dr. Shahdeen Malik that to deal with the energy resources of the Republic is essentially a function of the Government and the BERC being empowered by the Parliament to deal with some of the aspects and functions vis-à-vis the energy resources of Bangladesh is performing functions which are ‘in respect of the Government of Bangladesh’ as gas (a mineral) is vested in the Government as provided by Article 143 of the Constitution.
 
82.          We find substance in the contention of Dr. Shahdeen Malik that the functions which are now being performed by the BERC under the Act No. 13 of 2003 were previously performed directly by the Government; but the Parliament in its wisdom thought it expedient and desirable to entrust those functions to the BERC to ensure accountability and public/private involvement in regulating the energy sector and mere establishment of the BERC does not mean that the Government has completely divested itself of its sovereign and executive rights and power over mineral resources in that the BERC can not dilute the power and authority of the Republic under Article 143 of the Constitution.
 
83.          As referred to earlier, according to Article 129(4) of the Constitution, on ceasing to hold office, the Comptroller and Auditor-General shall not be eligible for further office in the service of the Republic. We have already found that the constitutional functionaries are not in the service of the Republic. From the context in which the word ‘further’ is used in Article 129(4) and in view of the spirit of the Constitution, it appears that the word ‘further’ necessarily means ‘any’. So our interpretation of Article 129(4) of the Constitution is that on ceasing to hold office, the Comptroller and Auditor-General shall not be eligible for any office in the service of the Republic. In the result, the question of application of the principle of ‘ejusdem generis’ as argued by Mr. M. Amir-Ul Islam does not arise at all.
 
84.          From the scheme of the Act No. 13 of 2003 and in the light of the above discussions, we opine that the Chairman of the BERC (respondent no.2) is performing his functions in respect of the Government of Bangladesh and by that reason, he is necessarily in the service of the Republic. As he is in the service of the Republic, he can not hold his present office being an ex-Comptroller and Auditor-General of Bangladesh because of the absolute embargo imposed by Article 129(4) of the Constitution.
 
85.          It is the submission of Mr. M. Amir-Ul Islam that the Act No.13 of 2003 does not contemplate any public advertisement in daily newspapers inviting applications for appointment to the post of the Chairman of the BERC and formation of any Selection Committee to recommend the names of some persons to the President through the Administrative Ministry for appointment of any one of them thereto. On the other hand, the submission of Dr. Shahdeen Malik is that the requirements of public advertisement and formation of Selection Committee stem from the language of the law itself. On this point, he draws our attention to the language of Section 7(2)(a) of Act No. 13 of 2003 which is reproduced below:
 
“Persons employed in the Government service may apply for the post of Chairman or Member subject to fulfillment of the other conditions  in the Act, submitting applications through proper channel; however in case of final selection for appointment, the concerned official can only join in the selected post after severing  lien with the Government service.”
 
86.          Unless there is any public advertisement in daily newspapers, persons employed in the Government service can not make any application for the post of the Chairman or a Member of the BERC through proper channel. So it seems that the language of Section 7(2)(a) of the said Act pre-supposes public advertisements in national dailies for the post of the Chairman or a Member of the BERC and consequent formation of a Selection Committee for selection of suitable persons for appointment thereto. Admittedly public advertisements were made inviting applications for appointment to the post of the Chairman or a Member of the BERC earlier, though no Rules have been framed in that regard as yet. The past practice of public process of advertisement and selection is evidenced by Annexure-‘A’ and ‘B’ series to the Writ Petition. What is most striking is that a Member of the BERC was appointed recently following an open process of public advertisement in ‘The Daily Star’ on 19.08.2010 (Annexure-‘I’ to the Supplementary Affidavit dated 29.09.2010). As a matter of fact, the spirit of law (Act No. 13 of 2003) requires an open process of public advertisement and selection of the Chairman of the BERC. But curiously enough, in the case of the incumbent Chairman of the BERC, there has been a departure from that open process. Anyway, it is correct to say that no specific provisions of open public advertisements and formation of selection committees have been contemplated by the Act No. 13 of 2003, though the same are implied therein.  Having regard to the facts and circumstances of the case, we feel constrained to express our opinion that the open process of public advertisement and selection of the respondent no. 2 by a Selection Committee for the post of the Chairman of the BERC was given a go-by by the Ministry of Power, Energy and Mineral Resources with some ulterior motive.
 
87.          In the facts and circumstances of the case and in view of the foregoing discussions, we have no hesitation in holding that the respondent no. 2 was appointed as the Chairman of the BERC by the impugned Memo dated 11.10.2009 in a non-transparent, opaque and hush-hush manner. So we find merit in the Rule. The Rule, therefore, succeeds.
 
88.          Accordingly, the Rule is made absolute without any order as to costs. It is hereby declared that the appointment of the respondent no. 2 and his holding of the public office of the Chairman of the BERC under the impugned Memo No. বিজ্বাখস(প্র-৩)/বাএরেক/নিয়োগ(চেয়ারম্যান)-১৪/২০০৯ dated 11.10.2009 (Annexure-‘D’)  issued by the Ministry of Power, Energy Mineral Resources are without lawful authority and of no legal effect.
 
          Mr. M. Amir-Ul Islam prays for a certificate under Article 103(2)(a) of the Constitution as the case involves a substantial question of law as to the interpretation of the Constitution. The certificate as prayed for is granted.
 
Ed.