Mohd. Emrul Kayes & others Vs. Syed Ejaz Kabir & others, 3 LNJ (2014) 269

Judge: Muhammad Khurshid Alam Sarkar,

Court: High Court Division,,

Advocate: Mahbubey Alam,Mr. Aneek R Haque,Mr. A.M. Aminuddin,Mr. S.M. Rezaul Karim ,,

Citation: 3 LNJ (2014) 269

Case Year: 2014

Appellant: Mohd. Emrul Kayes & others

Respondent: Syed Ejaz Kabir & others

Subject: Writ Petition, Locus Standi, Supreme Court Judge,

Delivery Date: 2013-07-31


HIGH COURT DIVISION
(SPECIAL ORIGINAL JURISDICTION)
 
Mirza Hussain Haider, J.
              And
Muhammad Khurshid Alam Sarkar, J
 
 
Judgment on
31.07.2013
  Mohammad Emrul Kayes and others
...Petitioners
(in W.P. No. 5267 of 2013)
With
Syed Ejaz Kabir
...Petitioner
(in W.P. No. 5247 of 2013)
And
Md. Noor Us Sadik
...Petitioner
(in W.P. No. 5276 of 2013)
-Versus-
Government of the People’s Republic of Bangladesh and others.
...Respondents
(in all the writ petitions.)
 
 
Constitution of Bangladesh, 1972
Article 102
A lawyer has a vital interest in the field of independency of judiciary and if the integrity and interest of the judiciary is threatened by an act of a State functionary, it shakes the conscience of a lawyer. The lawyers have been imposed with a heavy duty of protection of interest of judiciary when it appears some scheme and design to demoralize judges of the highest Court. Hence the petitioners are ‘persons aggrieved’ within the meaning of Article 102 of the Constitution.
A lawyer has a vital interest in the independence of the judiciary as the legal profession is an integral part of the judicial system and, further, a lawyer is an Officer of the Court who sits and practises in the Court and, therefore, he has a legitimate interest in preserving the integrity of independence of the judicial system and if the integrity and interest of the judiciary is threatened by an act of a state functionary, naturally, it shakes the conscience of a lawyer. . . . (57)
When there appears some scheme and a design to demoralize Judges of the highest Court, lawyers feel perturbed as they are always serious in maintaining the high standards of fearless, impartial and unbending justice. . . .(58)
The lawyers are considered to have their status in the judiciary as members of the judicial fraternity and, in our modern judicial system, by virtue of their active engagement in legal profession in the Court, they are considered and believed to be the inseparable part of the judiciary and, accordingly, they have been imposed with a heavy duty of protection of the interest of the judiciary. . . . (64)
Any public spirited conscious citizen may, bona fide, come forward for resolution of a grievance of a public nature through the Court of law for the benefit of the public, as opposed to the personal benefit, and our inevitable conclusion is that the petitioners are ‘person aggrieved’ within the meaning of Article 102 of the Constitution. . . . (67)
 
Constitution of Bangladesh, 1972
Article 102
When there is no other forum for the adjudication of the grivances relating to the benefits and interest of the judges of the Supreme Court, this Court being bestowed with the power of judicial review is not debarred from the taking up the present cases for its consideration. The present writ petitions are maintainable and this Court is competent to adjudicate the same.
While there is no separate forum for the adjudication of grievances related to the benefits and interests of the Judges of the Supreme Court, this Court being bestowed with the power of judicial review is not debarred to take up the present cases for its consideration. . . . (68)
As a citizen of this country the judges are entitled to enjoy their lawful rights guaranteed in the Constitution and other laws of the land and if their rights are invaded by any state functionary or individual, they are entitled to have recourse to the competent Court of law. . . . (69)
A Supreme Court Judge himself is an institution who cannot act unscrupulously for his personal gain and, for this reason, all the citizens including the members of the executive branch are duty bound to pay homage to them. . . .(70)
The Judges of this Court are under the legal obligation to protect, preserve and defend the Constitution and to dispense justice in accordance with law without any fear or favour, ill will or affection, be it the subject matter of adjudication involving our own interest or the interest of any near and dear one. The Judges, thus, can never act selfishly to personally benefit from the judgment or order passed by them. Rather, they act upon the dictates of their conscience which invariably leads them to act according to their oath. . . .(73)
The present Writ Petitions are maintainable at the instance of the petitioners and we also find that this Court is competent to adjudicate upon the cases. . . . (79)
 
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4 (1) (a)
When a judge of the High Court Division has asked for some residence, the allocation letter should have been revoked as a judge of the Supreme Court holds a much higher post that of a Secretary. Moreso, when the said application was recommended by the highest person of the Republic, the respond-ents had to deal with the same first and comply with it but, instead they showed the audacity of holding over the residence to respondents Nos. 3 on 15.05.2013 i.e. after issuance of the instant Rules, which demonstrate the deliberate disregard to a judge of the Supreme Court and the Hon’ble President of the Republic and thus the conduct of the respondent Nos. 1 and 2 appears to be malafide.
It appears from annnexures 1, 2 & 3 that the application of Mr. Justice Md Jahangir Hossain has been shown to have been received by respondent no. 1 on 20.11.2012 though the same has been forwarded from the Office of the Honourable President on 10.11.2012, which appears to be an inordinate delay inasmuch as usually all the correspondences from the Office of the Honourable President reaches the concerned Ministries within a day or two. Even, if it was received on 20.11.2012, allocation of the house in favour of respondent No. 3 on 20.11.2012 (on the day of receiving of Mr. Justice Jahangir’s application) cannot escape from being exposed to question in the light of the fact that after receiving the letter from the Office of the President, the dispatch of the said allocation letter could well have been stopped. In any event, when a Judge of the High Court Division has asked for the same, the allocation letter should have been revoked inasmuch as a Judge of the Supreme Court holds a much higher post than that of a Secretary. Moreover, when the said application was recommended by the highest person of the Republic, the respondents had no option but to deal with the same first and comply with it but, instead, they showed the audacity of handing over of the residence to respondent No. 3 on 15.05.2013 i.e. after issuance of the instant Rules, which demonstrates the deliberate disregard to a Judge of the Supreme Court and the Honourable President of the Republic. Thus, the conducts of respondent nos. 1 & 2 clearly appears to be malafide. . . .(82)
 
Constitution of Bangladesh, 1972
Article 147(1)
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
It transpires that the entitlement to a furnished house of a Supreme Court Judge is a statutory right stemming from the Supreme law, the Constitution. Therefore, making allocation of an accommodation to a Supreme Court Judge is an unbreachable duty of the State. . . .(87)
 
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
In the Warrant of Precedence the position of the High Court Judges is at serial no. 9 and it is worthy of mentioning here that the said Warrant of Precedence is framed and used for carrying out all sorts of functions of the State, not for ceremonial occasions only. If the provisions of the warrant of Precedence, for the arguments’ sake, is taken to be not applicable for the affairs of house allocation, nonetheless, by dint of statutory right, as enshrined in the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978, the Supreme Court Judges shall get preference over the Secretaries to the Governments.  . . .(88)

Constitution of Bangladesh, 1972
Article 147(1)
While the source of entitlement of the Supreme Court Judges to an accommodation is an Act of Parliament being a compliance to Article 147(1) of the Constitution, the source of entitlement to the accommodation of the Secretaries is Rules such as, Bangladesh Service Rules (BSR) and the Bangladesh Allocation Rules 1982 etc. . . . (90)
 
Constitution of Bangladesh, 1972
Article 147(1)
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
For the Secretaries to the Government, there is nothing to be jealous with the privileges and remuneration of the Judges of the Supreme Court, rather the state functionaries are expected to look after the Judges and should never disturb the Judges in enjoying their normal privileges and benefits, let alone providing any extra privileges. . . .(91)
 
Bangladesh allocation Rules, 1982
Rule 4
Thus, it appears that the actions of the respondents in allocation of the bungalow type houses or superior type flats have been taken in sheer violation of the obligation imposed upon them by the Constitution and the Statute. Therefore, the allotment of House No. 12 at Minto Road in favour of respondent no. 3 and the allocations of other bungalow type houses situated at Minto Road, Bailey Road, Dhanmondi, Gulshan and Banani to the Government servants, which have not been earmarked for any persona designate, are declared to have been done illegally.
It is not understood as to why the Secretaries, who have been occupying the bungalow type houses at Minto Road, Bailey Road and other places, have not chosen to stay in the flats earmarked for them as listed in annexure X(1) where a good number of Joint Secretary to Additional Secretaries are living. Those are F type accommodations and as per Rule 4 of the Bangladesh Allocation Rules, 1982, those are reserved and earmarked only for Senior Secretaries to Joint Secretaries and the Senior Secretaries/Secretaries would obviously get preference in getting allocation of the said earmarked flats as per the Rules, norms and practice. Until a single Secretary to the Government is in pipe line to get the said flat, the other officers with the rank below the Secretary should not be accommodated therein until the said earmarked type flats becomes available to them. . . . (104)

It appears that the actions of the respondents in allocation of the bungalow type houses or superior type flats have been taken in sheer violation of the obligation imposed upon them by the Constitution and the Statute. Therefore, the allotment of House No. 12 at Minto Road in favour of respondent no. 3 and the allocations of other bungalow type houses situated at Minto Road, Bailey Road, Dhanmondi, Gulshan and Banani to the Government servants, which have not been earmarked for any persona designate, are declared to have been done illegally. . . . (105)
 
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
The presence of the words “and, until such residence is provided”, in Section 4(1) (a) of the Ordinance frustrates the spirit of the statute which intends to actually provide a furnished residence for the Supreme Court Judges. . . .(108)
 
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
A Judge receives only Tk.26,600/- as residence allowance because of non-availability of the furnished house, which appears to be a striking unequal treatment and, thus, ridiculous given that the very purpose of incorporation of residence allowance is to allow and enable the non-allottee Judges to privately arrange for their accommodation but the said amount, cannot even meet half the costs of a suitable house.
In figuring out the amount of residence allowance, the concerned authority should have taken into consideration if the Government has to hire or requisition houses or flats of 4200-4500 square feet for the High Court Judges at a sparsely populated residential area in terms of being conducive to their security, it would cost around 1 lac taka, inclusive service charges and bills. Thus, it appears that the amount of residence allowance of Tk. 26,600/- is too low to arrange for a suitable accommodation for the Judges privately.
In absence of any guidelines for assessment and determination of the amount of house allowance, there is always a serious likeliness of deprivation of enjoying rational amount of house allowance by which a Judge may be able to cope up with the expenses of privately rented house.  . . .(108 and 109)
 
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
The executive cannot be allowed to enjoy the absolute authority in the matter of fixation of remuneration and/or with providing other privileges for the Supreme Court Judges as its ‘royal privilege’ or prerogative. If such a process is allowed to continue, the independence of judiciary will remain a distant dream.
Presence of an alternative option in Section 4(i)(a) of the Ordinance, 1978 in the event of failure by the respondents to provide the Judges with houses defeats the scheme of the law that “A Judge shall be entitled to, and provided with” in a three-fold way. Firstly, it paves the way for the concerned authorities to refrain from providing the Judges with furnished government houses, secondly, the residence allowance figured therein does not become of any use for the Judges to arrange for privately rented house and, thirdly, threatens the independence of the judiciary as the judiciary is pushed to be dependent upon the members of the executive for increase of the amount of the residence allowance by making overturns to them. . . .(112 and 118)
 
Constitution of Bangladesh, 1972
Article 147(2)
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
From a plain reading of Article 147(2) it appears that the State shall not make any legislation to the disadvantage of the Supreme Court Judges. But it has clearly been found by our minute examination and elaborate discussion made hereinbefore that the payment of house allowance of Tk. 26,600/- have been fixed to the disadvantage of the Supreme Court Judges.  . . .(124)
 
Constitution of Bangladesh, 1972
Article 147(2)
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
The Supremacy of the said Article 147(2)  has been flouted by incorporation of the impugned part of Section 4(1) of the Ordinance, 1978. It follows that the second part of Section 4(1)(a) of the Ordinance, 1978 is violative of Article 147(2) of the Constitution.  . . .(140)
 
Constitution of Bangladesh, 1972
Article 27
All the Judges of the High Court Division are similarly situated dignitaries, irrespective of their age or date of elevation in the Bench and, as such, they being the members of same class deserve to be treated equally and no law should make any discriminatory provision for which one judge will enjoy some benefit and other Judge will be deprived of the same. . . .(179)
 
Constitution of Bangladesh, 1972
Article 27 and 29
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
It appears that the presence of the second part of Section 4(1)(a) “--and until such residence is provided----” makes the deprived Judges victim of hostile and unequal treatment, thus, being the same inconsistent with Article 27 and 29 of the Constitution is required to be declared to be void for being ultra vires the Constitution.            . . .(183)
 
Constitution of Bangladesh, 1972
Article 27, 29, 31 and 147(1)
Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978
Section 4(1)(a)
Accordingly, we declare the second part of Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 in the language of “ .......and until such residence is provided, a judge shall be paid a residence allowance of Taka, 26,600/- per month” void for being the same ultravires of  Article 27, 29, 31 and 147(2) of our Constitution. . . .(187)

SP Gupta Vs. Union of India, AIR 1982 (S.C) 149; The Secretary, Ministry of Finance Vs. Masdar Hossain and others. (52 DLR (AD) 82); Bangladesh and others Vs Md. Idrisur Rahman (17 BLT (AD) 231); Bangladesh Vs Advocate AKM Shafiuddin (64 DLR 508); Government of Bangladesh Vs Advocate Manzil Morshed (CP No. 1172 of 2012, case relating to the medical allowances of the Judges of the Supreme Court of Bangladesh); Advocate Manzil Murshid Vs Bangladesh and others 33 BLD (HCD) 121; Advocate Manzil Morshed V Government of Bangladesh and other (Writ Petition No. 100027 of 2011); National Board of Revenue Vs Abu Sayeed Khan and others (18 BLC (AD) 2013); the Secretary, Ministry of Finance Vs. Masdar Hossain and others (52 DLR (AD) 82); Bangladesh and others Vs Md. Idrisur Rahman (17 BLT (AD) 231); Bangladesh Vs Advocate Manzil Morshed 33 BLD 121 (CP No. 1775 of 2013); Ataur Rahman  (Md) Vs Bangladesh and others (62 DLR 329); All Indian Judges’ Association vs Union of India (1993) 4 JT (SC) 618 SP Gupta Vs President of India. (AIR 1982 SC 149); Fazlul Qader Chowdhury Vs Muhammad Abdul Haque. (PLD 1963 SC 486); Ministry of Finance Vs Masdar Hossain (2000) (viii) BLT (AD) 234; Marbury Vs Madison (1803); Special reference Case No. 1 of 1964 (AIR 1965 SC 745); Asma Jihani Vs Government of Punjab. (PLD 1972 SC139); Khandaker Delwar Hossain -Vs- Italian Marble Company Limited reported in 2010 BLD Special, (the 5th amendment case); Siddique Ahmed –Vs- Bangladesh (2013 Counsel (Special); Md. Abdul Mannan Khan –Vs- Bangladesh. (“The 13th Amendment Judgment” published by the CCB foundation); Sultana Kamal Vs Bangladesh (14 BLC (2009); M. Samsul Haque and others -Vs- Bangladesh and others. (17 BLT (HCD) 523); Monzur Ahmed Bhuiyan and others Vs Adilur Rahman Khan and others. (18 BLC (AD) 47); Idrisur Rahman –Vs- Bangladesh. (60 DLR 714); Southern Rly Co. V. Grane, (216 U.S. 400); Shujat Ali Vs. Union of India, (AIR 1974, SC 1631); Bhoomi Vikash Bank Ltd Vs its workmen  (AIR 1990 SC 495); State of West Bengal v. Anowar Ali Sarkar, (AIR 1952, SC 75); Dhirendra Kumar Vs. Government of West Bengal, (AIR 1954, SC 424); Panduranga Rao Vs. Andhra Pradesh Public Service Commission, (AIR 1963, SC 268); Bank Nationalization  (AIR 1970 SC 564); Indira Gandhi Vs. Raj Narayan (AIR 1975 SC 2299); Hamidul Huq Chowdhury Vs Bangladesh  (34 DLR 190); Zainul Abedin Vs Bangladesh  (34 DLR 77); Bangladesh Krishi Bank -Vs- Meghna Enterprise and others  (50 DLR (AD) 194); SA Sabur Vs Returning Officer (41 DLR (AD) 30); Malpe Viswanath vs Moharashtra (1998) 2 SCC 1; Sayeda Rizwanna Hasan Vs Bangladesh reported in 18 BLC (AD) 54 ref.
 
Mr. Aneek R Haque, Advocate,
...For the petitioners. (in Writ Petition No. 5267/2013).

Mr. A.M. Aminuddin with
Mr. S.M. Mahbubul Islam
Mr. Riead Mahmud and
Mr. Mohammad Imran Miah, advocates,
...For the petitioner (in Writ Petition No. 5247/2013).

Mr. S.M. Rezaul Karim with
Mr. B.M. Elias and
Mr. Jotirmoy Burua, advocates,
...For the Petitioner (in Writ Petition No. 5276/2013).

Mr. Mahbubey Alam, Attorney General with
Mr. Al Amin Sarker, D.A.G
Mr. Zakir Hossain Ripon, A.A.G and
Mr. K.M. Masud Rummy, A.A.G,
...For respondents (in all the Writ Petitions).

Writ Petition Nos. 5267, 5247 and 5276 of 2013
 
JUDGMENT
Muhammad Khurshid Alam Sarkar, J:
 
All these three writ petitions have taken up simulteneously for hearing as common questions of law and fact are involved and, accordingly, they are being disposed of altogether by this single judgment.
 
Initially, on 20.05.2013, Rules were issued in all the above writ petitions in the following terms:
 
          Let a Rule Nisi be issued calling upon the respondents to show cause as to why the overall actions of the respondents in allocating the Government houses for the dignitaries positioned at serial no. 5 (Cabinet Ministers) to 16 (Secretaries to the Government) of the Warrant of Precedence, including their action in the allotment of House No. 12, Minto Road, Dhaka in favour of respondent no. 3 in defiance to the recommendation of the Hon’ble President of the People’s Republic of Bangladesh for allocation of the said house in favour of a Judge of the Supreme Court of Bangladesh, being in violation of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978, the Bangladesh Allocation Rules, 1982 and the Warrant of Precedence, shall not be declared to have been done without lawful authority and of no legal effect.
 
         And why the respondents shall not be directed to arrange “a furnished residence free from the payment of any rent and charges on account of municipal taxes and local rate and of the use of electricity, water and gas” (bungalow type or similar accommodation) for all the persons holding Constitutional positions, specially for the dignitaries under Serial No. 5 to 10 of the Warrant of Precedence;
 
         And, further, to show cause as to why the respondents shall not be directed to periodi-cally review the said provisions of Section 4(1) (a) of the Supreme Court Judges (Remuner-ation and Privileges) Ordinance, 1978, so far as it relates to the amount of the money for house allowance, in order to update and harmonize the same with the socio-economic conditions of the country;
 
         And also to show cause as to why, in case of failure of making such residential allotment in favour of the aforesaid dignitaries, the respondents shall not be directed to bear the costs incurred from the house rents, bills, charges and all other expenses at actual, in addition to the fixed house allowance, and/or pass such other or further order or orders as to this Court may seem fit and proper.
 
At the time of issuance of the above Rules on 30.05.2013 the following interim orders were passed upon the respondents:
 
Respondent nos. 1 and 2 are directed to submit a list of total number of bungalow type houses including the number and names of allottees/present occupants of the same within 2(two) weeks from the date of receipt of this order.
 
Pending hearing of the Rule, the respondents are directed not to allot any bungalow type house/similar accommodation to anyone without providing the same to the dignitaries under Serial No. 5 to 10 of the Warrant of Precedence.
 
Further, the respondents are restrained by an order of injunction from handing over the possession of 12, Minto Road, Dhaka to respondent no. 3.
 
On 20.06.2013, upon the prayer of the petitioners, a supplementary Rule was issued along with interim order in the following terms;
 
Let a supplementary Rule Nisi be issued calling upon the respondents to show cause as to why the 2nd part of Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 shall not be declared to be ultra vires as the same is violative of Article 27, 29, 31 and 147(2) of the Constitution and, also, for being contradictory and repugnant to the first part of the said provisions of Section 4(1)(a) of the said Ordinance, 1978.
 
Pending hearing of the Rule, respondent no. 1 is directed to submit a list of total number of flats/houses of the superior category which have been allotted to the Joint Secretaries to Secretaries with number and particulars of the present occupants before this Court within 10 (ten) days.
 
Succinctly, the background of the case is that the writ petitioners in all the above three writ petitions are the practising advocates of the Supreme Court of Bangladesh and, day before the issuance of the instant Rules, they together with a handful young advocates approached this Court in the form and style of “mentioning” a particular matter by placing some news clippings/reportings which state that the Government has allotted House No. 12, Minto Road, Dhaka, in favour of the Secretary, Ministry of Industry despite the same being recommended by the Hon’ble President of the People’s Republic of Bangladesh for an Hon’ble Judge of the High Court Division and submitted that the said news, having caught sight of the petitioners, prompted them to engage in investigation into the matter and it was revealed that while a number of Hon’ble Judges’ applications for accommodation, after the same being forwarded by the Hon’ble Chief Justice of Bangladesh, are lying unnoticed in the Ministry of Public Works and Housing, the members of the administrative branch, ranking from Joint Secretary to Senior Secretary, are being regularly endowed with luxurious apartments and bungalows and, thus, the cases of Hon’ble Judges are being purposely ignored. Then, they submitted that they felt dismayed at the deplorable treatment of the state function-aries in providing the Judges of this Court with their legal entitlements and, hence, they consider the matter as a fit case for issuance of a Suo motu Rule and, accordingly, prayed for the same. However, this Court, instead of issu-ance of a Suo motu Rule, asked the petitioners to come up with a formal application, if they find themselves to be aggrieved with the actions of the respondents.
 
At this juncture, on the following day, the petitioners filed 3 (three) applications under Article 102 of the Constitution. All of the petitions are almost with the same contentions and prayers. It is stated in all the writ petitions that the state functionaries, who are responsible for fixation of remunerations, privileges and other benefits, including allocation of suitable accommodation for the Judges of the Supreme Court, are discriminating against the latter in allocation of the residence in violation of the relevant laws of the land. It is stated that the Judges of this Court are not supposed to approach anyone in the Republic other than the Hon’ble President of the Republic, the highest authority of the land, and when the application of Mr. Justice Md. Jahangir Hossain for allotment of House No. 12 at Minto Road was recommended by the Hon’ble President, respondent Nos. 1&2 were duty bound to comply with the said recommendation, but, instead, they allotted the House to respondent no. 3. It is stated that the respondents have committed a serious misconduct by defying the recommendation of the Hon’ble President of the Republic and thereby allotting the said house to respondent no. 3. The underlying concern of the petitioners is that unless the impugned actions of the respondents are adjudicated upon at an earliest convenience, it shall, at the very least, establish a dubious precedent of action arbitrarily and peremptorily taken with impunity against the legitimate rights and interests of a member of the Bench of the Superior Judiciary, thereby, operating inimically to the interests and image of the Supreme Judiciary as a whole.
 
It is stated that lawyers are the integral part of the judiciary and as the conscious citizens of the country and members of the legal profession the petitioners believe in the independence of the judiciary and they are tirelessly working towards the establishment of the rule of law as they hold the Constitution of Bangladesh in high esteem as sacred inviolable superior law of the land. The petitioners stated that they consider the said incident to be a degrading treatment for the Hon’ble Judges of the Supreme Court with a perilous consequence to the state which consists of the  Executive, the Legislative and the Judiciary and, as such, the petitioners felt the urge to come up with these applications in the form of public interest litigation (PIL) for vindication of a public grievance related to the greater interest of the judiciary with a view to strengthening the position of the judiciary and, thereby, ensure the independence of the judiciary. Hence, these Rules.
 
For illuminating the facts of these writ petitions stated hereinbefore and also of the discussions, observations and orders to be made/passed in these cases hereinafter and, further, for the ease of reference, let the respondents’ identities be known. In all the writ petitions respondent no. 1 is the Secretary, Ministry of Housing and Public Works, respondent no. 2 is the Director, Directorate of Government Accommodation, respondent no. 3 is the Secretary, Ministry of Industry, respondent no. 4 is the Secretary, Ministry of Law, Justice and Parliamentary Affairs and respondent no. 5 is the Secretary, Ministry of Finance. All of them entered appearances by filing affidavits-in-opposition.
 
The affidavit-in-opposition filed on behalf of respondent nos. 1 and 2 contends, inter-alia, that there are, in total, 124 superior type of houses (bungalows) and out of them 20 houses have been earmarked for the Judges of the Supreme Court and the Registrar of the Supreme Court of Bangladesh is in charge of allocation of all the said 20 houses and, currently, all these earmarked houses are being occupied by the Hon’ble Judges of the Supreme Court of Bangladesh. It is stated that normally no bungalow type house, except the aforesaid 20 earmarked houses, is allotted to the Judges of the Supreme Court of Bangladesh by respondent no. 2. However, on special consideration, in addition to the said 20 earmarked houses, 27 extra superior types of Government houses have been allotted to the Judges of the Supreme Court and, thus, presently total 47 superior type of houses, being situated at Minto Road, Bailey Road, Dhanmondi Residential Area, Mohammadpur Residential Area and Gulshan Residential Area, are being occupied by the Judges of the Supreme Court. It is stated that the Government has undertaken a project at 67, Circuit House Road, Ramna, Dhaka for construction of 76 apartm-ents of 4200 Square feet for the Judges of the Supreme Court and the construction of the same is going on at full speed.

It is stated that most of the bungalow type houses at Minto Road, Bailey Road and Hare Road are earmarked for the Ministers, State Ministers, Deputy Ministers, Commissioners of Election Commission, Inspector General of Police (IGP), Auditor and Comptroller General of Bangladesh, Governor of Bangladesh Bank, District Judge, DC, SP of the Dhaka District and some other special designated officers. It is stated that as per the Bangladesh Government Allocation Rules, 1982 Government Officers with the scale of Tk. 32,300/- and above, ranking from Joint Secretary to Senior Secretary, are entitled to get allotment of the superior type of houses and, at present, there are 6 (Six) earmarked buildings for the said officers having 195 superior type of flats of above 4000 square feet. Nevertheless, there is an acute shortage of accommodations of the high-ranking Government servants and in order to cope up with the situation a good number of bungalow houses at Minto Road and Bailey Road and 9 (nine) bungalow type of houses outside the said areas have been allotted in favour of the Government servants with the rank of Secretary, Senior Secretary and Cabinet Secretary. It is stated that House No. 12 at Minto Road, Dhaka is a bungalow type house and the said house has been allotted to respondent no. 3 on 20.11.2012 upon his application dated 25.10.2012 and handed over to him on 15.05.2013. It is stated that Mr. Justice Md. Jahangir Hossain made his application to the Hon’ble President of the Republic for allocation of the said house on 08.11.2011 and the same, being recommended by the august office of the Hon’ble President of Bangladesh on 10.11.2012, was received only on 20.11.2012 and 21.11.2012 by respondent nos. 1 and 2 respectively and, thus, it could not be allotted to the Hon’ble Mr. Justice Md. Jahangir Hossain as the said house, by then, was allotted to respondent no. 3 on 20.11.2012. It is stated that Mr. Justice Md. Jahangir Hossain has been living in a superior type of house at House no. 71/1, Circuit House upon getting it allotted on 02.01.2012.

By filing a separate affidavit-in-opposi-tion respondent no. 3 contends, inter-alia, that currently he is living in a superior type house in Gulshan area allotted by the Government but his office being in Motijheel area, he was encountering severe traffic jam everyday on the way to and from his office and, under the situation, he applied for House no. 20 at Minto Road, Dhaka on 20.11.2012 and the same was handed over to him on 15.05.2013.
 
By filing another affidavit-in-opposition respondent no. 5 contends, inter-alia, that as per the Supreme Court Judges (Remuneration and Privileges)(Amended) Act, 2010 at present the Hon’ble Judges of the Supreme Court gets Tk.26,600/- per month as their residence allowance. It is stated that previously the residence allowance was Tk. 20,000/-and recently the “Committee on Pay and Privilege of the Judges of the Supreme Court of Bangladesh” has been formed by the Government to place recomm-endation regarding revised remuneration of the Judges of the Supreme Court and the said Committee recommended for free furnished residence with all other facilities and a monthly payment of Tk. 35,000/- as residence allowance, in the event of its non-availability. It is stated that the Finance Division will do the needful to increase the amount of the residence allowance, if any such proposal is made by the Ministry of Law and Parliament.

Mr. A.M. Aminuddin, Mr. S.M. Rezaul Karim, Mr. B.M. Elias and Mr. Aneek R. Haque, all of the learned advocates appeared for the petitioners. They, at the very outset, submit in one voice that the petitioners are the conscious citizens of the country and are committed to the welfare of the Republic and to uphold the Rule of Law and our society expects that the lawyers, such as the petitioners, should always be vigilant against any action of the state taken to the disadvantage of the judiciary and, thus, all these Public Interest Litigations (PIL) are being moved in the interest of the public at large as pro-bono publico.
 
They submit that the statements/ discus-sions by those holding high office and wielding state power, the elite class or the members of the civil society in different seminars and in the electronic/print media as to the establishment of rule of law in the country would be regarded by the common men to be a farce, if, at first, an environment for the judiciary to work indep-endently is not created. They submit that members of the judiciary must be allowed to work uninterruptedly being free from any anxiety about maintaining their personal and family life. They submit that if the Judges of the Supreme Court are to be dependent on the kindness of the members of the executive branch for their various legal entitlements such as, here in this case, allocation of houses, they will not be in a position to demonstrate their impartiality at the time of adjudication upon a case against the concerned authority of the government. They submit that if the Judges of the higher judiciary is to be engaged in satisfying the members of the executives, the judiciary as an organ of the state shall never be independent.
 
Then, they placed Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 (hereinafter referred to as the Ordinance, 1978)  and submit that it is a mandatory duty of respondent nos. 1 and 2 to arrange for furnished residences with free electricity, gas, water and other facilities, which may either be bungalow type houses or flats in view of the words “provided with” employed in the said Section in furtherance to the words “shall be entitled to”. They submit that by using the phraseology “a judge shall be entitled to, and provided with”, the legislature intended to ensure that all the Judges of the Supreme Court must be provided with a suitable accommodation just after entering into their office.
 
Then, they refer to the amount of money figured in the second part of Section 4(1)(a) of the Ordinance, 1978 which makes the provisions for monthly payment of Tk. 26,600/- in the event of the failure by the Government for arranging furnished houses for the Judges of the Supreme Court and term the said figure to be completely impractical and unreasonable as well as inconsistent with the provisions as prescribed in the same Section of the said Ordinance as to providing furnished residence for the Judges. They submit that the amount of money spent for providing a Judge with a furnished residence, together with the rent, charge and bills of electricity, water and gas does cost the Government nearly Taka 2, 00000/- (two lacs) per month and, on the other hand, only Tk. 26,600/- is being paid to the Judges living in privately rented accommo-dation. They submit that anyone with minimum prudence will get bewildered at the comparison of the above figures. They, therefore, submit that the provisions made in the Ordinance, 1978 for payment of Tk. 26, 600/- is violative of Articles 27 and 29 of the Constitution inasmuch as all the Judges of the Supreme Court being at par, some of them cannot be subjected to discrimination by the respondents by purposely not providing a furnished residence. They, thus, submit that the said provision is required to be declared ultra vires the Constitution.
 
The learned advocates, by sketching out a comparative rent schedule of the different areas of the Dhaka City, submit that most of the Judges of the Supreme Court, who are yet to get Government accommodation, are living in the privately rented houses of 4 to 5 bed rooms and they are monthly spending for their house rent Tk. 40,000/- to Tk.70,000/-, based on the area/location and size of the flat and, in addition to that, they are paying Tk. 10,000/- to Tk. 20,000/- per month as service charges and for bills of electricity, water and gas and, therefore, the learned advocates for the petitioners assailed the second part of Section 4(1)(a) of the Ordinance, 1978 to be repugnant to the provisions of the first part of the said Section on the ground of lacking any basis in fixation of Taka 26,600/00. They submit that incorporation of the said part in Section 4(1)(a) of the Ordinance, 1978 has created scope for the respondents to act arbitrarily in allocation of accommodations for the Hon’ble Judges and, thereby, deprive them of getting their residence and, as such, the said part is an unreasonable legislation and requires to be deleted from the said Section 4(1)(a) and an alternative provisions should be incorporated therein to defuse the respondents’ tendency of being actuated by their whims, arbitrariness and malice in fixation of the amount of money as the residence allowance for the Judges of the Supreme Court in case of non-availability of the Government accommodation.
 
They submit that it is the foremost responsibility of the State to ensure the hassle-free enjoyment of the privileges of the Judges as prescribed in the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 as the Judges are entitled to get protection of Article 31 of the Constitution which guarantees that everyone will be treated in accordance with law. They refer to annexures X & X(1) series appended to the affidavit-in-compliance where superior types of flats and bungalow houses have been listed. They assail the said list to be incorrect as the petitioners have come to know that there are some more superior type of accommodations presently lying vacant but the respondents do not intend to allot the same to the Judges and, thence, those have not been shown in the aforesaid 2 (two) lists. In this context, they refer to the statements made in Writ Petition no. 5276 of 2013 where, at the investigation of the petitioners, the House no. 8/15 at Sir Syed Ahmed Road has been surfaced to be vacant. They also referred to another news clipping which reports that a house in Dhanmondi area, for which the Government is litigating for years to dispossess the alleged owners, has been allotted to an Hon’ble Judge of the Supreme Court with an ulterior motive of maligning the image of the judges of the higher judiciary. They, then, refer to a number of decisions of our Apex Court where an Article or a part of the Constitution or a piece of legislation was struck down for being repugnant to the other provisions of the same statute or for being ultra vires the Constitution.
 
They referred to Section 2(a) of Bangladesh Allocation Rules, 1982 and submit that when it does not become possible for the Government to make arrangement of accom-modation for the Government servants from the houses/flats owned by the Government, it hires or requisitions houses/flats for the Government servants for mitigating the demands and, thus, by drawing an analogy from the said provisions of the Bangladesh Allocation Rules, 1982 the learned advocates for the petitioners submit that the respondents ought to have hired or requisitioned the required number of houses or flats of 4,200 square feet for the Judges of the Supreme Court until the project of construction of 76 flats of 4200 square feet at 67, Circuit House Road, Ramna, Dhaka is completed inasmuch as it is the imperative for the respondents to provide accommodation. They, in the manner of placing a suggestion to the respondents through this Court, submit that the location of the hired or requisitioned flats should be within the proximity of the Supreme Court premises, such as Eskaton, Siddheshwari, Kakrail and Bailey Road areas and, in the case of non-availability of the required number of houses/flats in the said area, secured residential areas like, Dhanmondi, Gulshan and Banani should be selected. They put a further suggestion that the hired or requisitioned flat should not be of less than 4,200 square feet as they submit that the said residence for the Judges of the Supreme Court should have sufficient space with an internal arrangement of a study room, in addition to having at least 4 bed rooms, one dining room and one guest room. In a bid to compare the residential arrangements of the Judges of the Supreme Court with that of the members of the executive, they placed the fact before this Court that the flats earmarked for the Joint Secretaries to Secretaries at Eskaton, Bailey Road, Gulshan, Dhanmondi and other areas of the City are of 4,000 square feet and, further, the Ministers’ Flats situated at Minto Road earmarked for the State Ministers are of 5,200 square feet and submit that in comparison to the above facts and figures the Judges of the Supreme Court, being positioned in the Constitutional post, must deserve allotment of the flats of larger space than those of the Secretaries to the Government.
 
Per contra Mr. Mahbubey Alam, the learned Attorney General appearing for all the respondents, submits that fixation of an amount of money as the residence allowance for the persons holding the Constitutional posts or for the Government servants is completely a policy decision and the power of making the policy decision has been vested in the legislature and in the executive and, as such, the same is not judicially reviewable. To augment the submissions, he draws our attention to the maxim “No man should be judge in his own cause (Nemo debet esse judex in propria causa)” and adds that since the issue is related to the self-interest of the honourable Judges of this Court, it may be fair to leave the dispute upon the policy makers for their considerations instead of adjudication upon the same by itself.
 
He submits that the legislature in their wisdom have intended to provide furnished residence together with the rents, charges and bills for the Judges of the Supreme Court and if the said arrangement cannot be made due to the non-availability of the houses or flats, provisions have been made in the same piece of legislation for making payment of a fixed amount of money for the Judges of the Supreme Court as the residence allowance. He submits that previously the amount was Tk. 20,000/- which has, recently in 2010, been increased to Tk. 26,600/- and the Government is actively considering to increase it to Tk. 35,000/- and, as such, it will be illogical to say that the Government is not reviewing the provisions laid down in the second part of Section 4(1)(a) Ordinance, 1978.
 
He submits that this Court is empowered to declare an Act of Parliament to be void only if it is clearly found that the same is inconsistent with any part of the Constitution and, in the case at hand, as he submits, there being no inconsistency of the provisions of second part of Section 4(1)(a) of the Ordinance, 1978 with any Article of the Constitution, there is no ground for declaring the same to be ultra vires the Constitution.
 
He, by referring to the news clippings centering house no. 12 at Minto Road, Dhaka, submits that the adjudication upon these types of disputes by this Court may give rise to an unwanted unhappiness among the members of the executives and, thereby, may create an unhealthy working environment with the higher judiciary. He refers to Rules 3, 4 and 8 of the Bangladesh Allocation Rules, 1982 and submits that only the Government Servants are entitled to the superior type of houses and the Government has the power to reserve the required number of accommodations in order to allot the same to the holders of specific posts and the Judges of the Supreme Court being not in the service of the Republic cannot claim the houses/flats managed and controlled by respondent nos. 1 and 2. He submits that the Judges of the Supreme Court, being the Constitutional post holders, should be provided with accommodation at a specified place where only the Judges exclusively may live with their families and, keeping this view in mind, the Government previously has constructed 20 independent bungalow type houses within the vicinity at Kakrail and in view of the increasing appointments in the higher judiciary the Government has already undertaken a project to construct a building with 76 flats of 4,200 square feet each and the project is due to be completed in the next couple of years and, after completion of the said project, it is expected that there will be no shortage of accomm-odation for the Judges of the Supreme Court.
 
The learned Attorney General endeavors to indicate that the present writ petitions are aimed at making a particular Judge of the Supreme Court, who was trying to get allotment of a bungalow type house in Minto Road area, happy and submits that this sort of phenomenon should be discouraged by this Court as it may lead to bridging up an unsolicited rapport of the petitioners with the said Judge. He submits that the House in question should not be allotted to the said Hon’ble Judge in the light of the fact that he might feel indebted towards the petitioners for their co-operation in encountering the concerned members of the Executive branch, if the said house is allotted to him consequent to the verdict of these writ petitions. He does not concede to the claim of the petitioners that the instant writ petitions are directed bona fide and aiming at vindication of a public concern and, thus, submits that the petitioners do not have any locus standi to file the instant applications under Article 102 of the Constitution.
 
We have heard the submissions advanced by the learned advocates for the petitioners and the learned Attorney General at length and perused the writ petitions, affidavits-in-opposition and the annexures appended thereto. We have also looked at the relevant provisions of the law and gone through the decisions placed before us and considered them with great care.
 
Since the learned Attorney General for Bangladesh has raised the question of maintainability of these writ petitions on the ground of the standing of the petitioners as well as the competency  of this Court in adjudic-ation upon the matter, for being the same related with the self-interest of the Judges of this Court, this Court is required to deal with the said issues at first before entering into the task of examining the constitutionality of the impugned part of Section 4(1) (a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 as well as the impugned actions of the respondents.
 
In order to carry out the said examin-ation, we should look at the wordings of Article 102 of our Constitution in tandem with the decisions of our jurisdiction and foreign jurisdictions. 
Since we are a new born nation and have been bestowed with our Constitution only since 42 years, let us first look at the old jurisdiction, such as UK, India and Pakistan, for the interpretation made and hold on the point of standing of a petitioner in judicial review cases by their Constitutional Courts.
 
In India, the concept of public interest litigation was imported by Mr. VR Krishna lyer, J in the case of Mumbai Kamgar Sabha, Bombay vs Ms Abdul Bhai reported in AIR 1976 (SC) 1466 and, eventually, in the celebrated case of SP Gupta vs President of India reported in AIR 1982 (SC) 149 (known as Judges case) the jurisprudential basis was laid down. In that case several advocates of different Bars challenged the Government’s action transferring some Judges of the High Courts and Justice Bhagwati approved the locus standi in paragraph 17.
 
“Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or determinate class of persons is, by reason of poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the Court for relief, any member of the public maintain an application....... seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons”.
 
In Indian jurisdiction the locus standi has been enlarged to such an extent that now it is left completely upon the discretion of the Courts on the basis of the fact of the each case. In the cases of  BALCO Employees Union (Regd) V. Union of India, 2001 AIR SCW 5135, S.P. Gupta V. Union of India, 1981 (Supp) SCC 87, Janata Dal V. H.S. Chowdhury, (1992) 4 SCC 305 and in many other latest cases, the standing of a petitioner was accorded giving liberal meaning of the “person aggrieved”.
 
In Pakistan, in the year of 1956, in the case of Tariq Transport Company, Lahore vs Sargodha-Bhera Bus Service, Sargodha reported in 11 DLR (SC) 140, the Supreme Court of Pakistan observed.
 
“........ a person seeking judicial review must show that he has a direct personal interest in the act which he challenges before his prayer for review is entertained.”
 
In the case of Mian Fazal Din vs Lahore Improvement Trust reported in 21 DLR (SC) 225, the Pakistan Supreme Court took somewhat liberal view stating—
 
“........the right considered sufficient for maintaining a proceeding of this nature is not necessarily a right in the strict juristic sense; but it is enough if the applicant disclose that he had a personal interest in the performance of the legal duty, which if not performed or performed in a manner not permitted by law, would result in the loss of some personal benefit or advantage or the curtailment or the curtailment of a privilege or liberty or franchise.”
 
However, the development in this field took place in Pakistan only in the recent past. In the case of Benazir Bhutto vs Federation of Pakistan, PLD 1988 (SC) 416, the Pakistan Supreme Court held that as the provision of Article 184(3) is open-ended, the proceedings could be maintained by an individual whose fundamental rights are infracted or by a person bona fide alleging infraction of the fundamental rights of a class or a group of persons, as there is no rigid incorporation of the notion of ‘aggrieved party’ in Article 184(3).
 
In England, no written Constitutional or any statutory provision as to the locus-standi of a petitioner to file judicial review application, like the words “any person aggrieved” as used in our Constitution, was in existence before 1981. The English Courts have, de facto   made the legislation as to the locus-standi. In the English jurisdiction, the leading English case on locus standi is ex parte Sidebotham, (1880) 14 Ch D 458 where the Court held that a person aggrieved is a man “who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongly deprived him of something, or wrongfully refused him something, or wrongfully affected his title to something.
 
After the said judgment, there have been significant developments in the English jurisdiction as to the rule of locus standi and shifted from restrictive view of standing.
 
In the case of RV Metropolitan Police Commissioner ex P Blackburn [1968] 1 All ER 763 and, subsequently, in the case of P Blackburn vs Attorney-General [1971] 2 all ER 1380 and, then, in the case of RV Metropolitan Police Commissioner ex P Blackburn [1973] All ER 324 the petitioners were accorded standing as the Courts found that the petitioners had ‘sufficient interest’ in the performance of the public duty.
 
Thereafter, by the enactment of the Supreme Court Act, 1981 the issue has finally been settled. 
To return to our jurisdiction, the observations made by our Appellate Division in the case of  Bangladesh Sangbadpatra Parishad Vs Bangladesh reported in 43 DLR(AD) 126 (para 9), having compared the standing of a petitioner in the context of our Constitution to that of UK and India, may be quoted which is as under:
 
“In our Constitution the petitioner seeking enforcement of a fundamental right or constitutional remedies must be a “person aggrieved”. Our Constitution is not at pari materia with the Indian Constitution on this point. The Indian Constitution, either in Article 32 or in Article 226, has not mentioned who can apply for enforcement of fundamental rights and constitutional remedies. The Indian Courts only honoured a tradition in requiring that the petitioner must be an “aggrieved person”. The emergence in Indian of pro bono  publico litigation, that is litigation at the instance of a public-spirited citizen espousing causes of others, has been facilitated by the absence of any constitutional provision as to who can apply for a writ. In England, various tests were applied. Sometimes it was said that a person must be “aggrieved” or he must have “a specific legal right” of or, he must have a “sufficient interest”. Now, after the introduction of the new Rules of the Supreme Court, Order 53 Rule 3, any person can apply for “judicial review” in England under the Supreme Court Act, 1981 if he has a “sufficient interest”.”
 
Let us first look at Article 102 of our Constitution, the repository power of this Court to review the actions of any person, reads as follows:
 
Powers of High Court Division to issue certain orders and directions, etc. (1) The High Court Division on the application of any person aggrieved, may give such directions or orders to any person or authority, including any person performing any function in connection with the affairs of the Republic, as may be appropriate for the enforcement of any of the fundamental rights conferred by Part III of this Constitution.
(2) the High Court Division may, if satisfied that no other equally efficacious remedy is provided by law-
(a) on the application of any person aggrieved, make an order- (underlined by us)
 
Under Article 102(1) of our Constitution, our Court exercises the power of judicial review if an impugned action is made in violation of fundamental rights on the application of “any aggrieved person”. Under Article 102(2), in order to have locus standi to invoke the jurisdiction, an applicant has to show that he is an aggrieved party in an application for certiorari, mandamus or prohibition but not in an application for habeas corpus or quo warranto, where Writ Petitioner is not required to be a ‘person aggrieved’.
 
In our jurisdiction the question of locus standi of the petitioners was examined for the first time in the Beru Bari Case reported in 26 DLR (SC) 44. In the aforesaid case their Lordships of the Supreme Court held as follows:
 
“We have given the respondents’ objection as to the Appellants’ locus standi to move the High Court Division our anxious consideration. It appears to us that the question of locus standi does not involve the Court’s jurisdiction to hear a person but of the competency of the person to claim a hearing, so that the question is one of discretion which the Court exercises upon due consideration of the facts and circum-stances of each case. The appellant has complained that he is under impending threat of deprivation of his fundam-ental rights under Article 36 of the Constitution and his right of franchise. Because of this as well as of the excep-tional and extra-ordinary Constitutional issues raised in this case involving consideration of an international agre-ement between this country and the friendly Republic of India, we decided to hear the appellant.”
 
In Dr. Mohiuddin Farooque Vs. Bangladesh, 49 DLR (AD) 1, (popularly known as BELA’s case) Mr. B.B. Roy Chowdhury, J, observed:
 
In such harrowing conditions of our people in general if socially conscious and public-spirited persons are not allowed to approach the court on behalf of the public or a section thereof for the enforcement of their rights the very scheme of the Constitution will be frustrated. The inescapable conclusion, therefore, is that the expression “person aggrieved” means not only any person who is personally aggrieved but also one whose heart bleeds for his less fortunate fellow beings for a wrong done by the Government or a local authority in not fulfilling its constitut-ional or statutory obligation. It does not, however, extend to a person who is an interloper and interferes with things which do not concern him. This approach is in keeping with the constitutional principles that are being evolved in the recent times in different countries”.
 
In the said BELA’s case, his Lordship Mr. Justice Mostafa Kamal of the Appellate Division held in paragraph 40:
 
“We now proceed to say we interpret Article 102 as a whole. We do not give much importance to the dictionary meaning or punctuation of the words ‘any person aggrieved.”
 
It was further held in BELA’s case in paragraph 47:
 
“The Supreme Court being a vehicle, a medium or mechanism devised by the Constitution for the exercise of the judicial power of the people on behalf of the people, the people will always remain the focal point of concern of the Supreme Court while dispensing justice or propounding any judicial theory or interpreting any provision of the Constitution. Viewed in this context, interpreting the words “any person aggrieved” meaning only and exclusively individuals and excluding the consider-ation of people as a collective and consolidated personality will be a stand taken against the Constitution. There is no question of enlarging locus standi or legislation by Court.  The enlargement is writ large on the face of the Constitution.”
 
Ultimately Mr. Justice Mostafa Kamal held in the same case in paragraph 48:
 
“The traditional view remains true, valid and effective till today in so far as individual rights and individual infraction thereof are concerned. But when a public injury or public wrong or infraction of a fundamental right affecting an indeterminate number of people is involved, it is not necessary, in the scheme of our Constitution, that the multitude of individuals who have been collectively wronged or injured or whose collective fundamental rights have been invaded are to invoke the jurisdiction under Article 102 in multitude of individual writ petitions, each representing his own portion of concern. In so far as it concerns public wrong or public injury or invasion of fundamental rights of an indeterminate number of people, any member of the public, being a citizen, suffering the common injury or common invasion in common with others or any citizen or an indigenous association, as distinguished from a local component of a foreign organization, espousing that particular cause is a person aggrieved and has the right to invoke the jurisdiction under Article 102.”
 
In the case of Ekushey Television Ltd. vs Dr. Chowdhury Mahmood Hasan reported in 54 DLR (AD) 130 (popularly known as ETV case), it was held in paragraph 48:   
 
“What is meant by ‘sufficient interest’ is basically a question of fact and law which shall have to be decided by the Court. None of the fundamental rights like rule of law is subject to mechanical measurement. They are measured by our human institutions i.e. the Courts and by human beings i.e. the Judges, by applying law. Therefore, there will always be an element of discretion to be used by the Court in giving standing to the petitioner. From the above, it appears that the Courts of this jurisdiction have shifted their position to a great extent from the traditional rule of standing which confines access to the judicial process only to those to whom legal injuries are caused or legal wrong is done. The narrow confines within which the rule of standing was imprisoned for long years have been broken and a new dimension is being given to the doctrine of locus standi.”
 
In the Case of Bangladesh and others Vs Idrisur Rahman (10 Judges Case) reported in 17 BLT (AD) 231 the petitioner, Mr. Idrisur Rahman, was an advocate and the subject matter of the writ petition was reinstatement of some High Court Judges under Article 95 of the Constitution. Thus, though the petitioner was not found to be personally aggrieved but his standing was accorded on the ground that the petitioner, as a lawyer, has an intensive interest in the establishment of the independence of the Judiciary. 
 
In the case of Bangladesh Vs Advocate AKM Shafiuddin 1 LCLR [2012] HCD339 (which has subsequently been disposed of by the Appellate Division in CP No.2212 of 2012), the petitioner, who is a lawyer of this Court, challenged the proceedings of the Parliament where a derogatory remark was made about an Hon’ble Judge of this Court and, further, a “Ruling” was passed by the Parliament demoralising the position and jurisdiction of this Court. In adjudication upon the said case, the competency of the petitioner in filing the writ petition was not viewed by this Court negatively.
 
In the case of Advocate Manzil Morshed and others vs Government of Bangladesh and others (Writ Petition No. 2427 of 2011) the petitioners’ standing was not questioned albeit the subject matter of the case was related to the Supreme Court Judges’ remuneration (the matter being appealed by the Government as CPLA No. 1775 of 2013 is awaiting disposal by our Appellate Division).
 
In all the above Stare Decisis (Starred Decisions), the standing of the petitioner was approved by our Courts.
 
However, in the case of Bangladesh Sangbadpatra Parishad Vs Bangladesh reported in 43 DLR(AD) 126, the locus standi of the petitioner was denied. Later on, A.T.M. Afzal, J. in Dr. Mohiuddin Farooque Vs Bangladesh, 49 DLR (AD) 1, in according locus standi to the petitioner, laid down some principles to be observed by our High Court Division:
 
“A person pleading sufficient interest may be able to cross, what is called, the threshold stage on the averments made in the writ petition but it will always remain open for a prospective respondent to contest the said claim on facts and also to assail the bonafides on even the appropriateness in a particular case of the petitioner for seeking a relief invoking the constitut-ional jurisdiction of the High Court Division under Article 102 of the Constitution. For example, standing was denied to the Bangladesh Sangbad Patra Parishad to represent its opulent members, namely, the newspaper owners who were directly affected by the Wage Board Award but even then none of them moved personally, but the consideration would have been different if any organization representing a weaker section of the society had come to complain about a breach of any fundamental right of its members or any public wrong done to the members generally in breach of any provision of the Constitution or law. The Court will have to decide in each case, particularly when objections is taken, not only the extent of sufficiency of interest but also the fitness of the person for invoking the discretionary jurisdiction under Article 102 of the Constitution. Ordinarily, it is the affected party which is to come to the Court for remedy. The Court in considering the question of standing in a particular case, if the affected party is not before it, will enquire as to why the affected party is not coming before it and if it finds no satisfactory reason for non-appearance of the affected party, it may refuse to entertain the application.”
 
In the Case of BRAC Vs Professor Mozaffar Ahmed reported in 54 DLR (AD) 37 (popularly known as BRAC Bank Case) our Apex Court did not approve the standing of Professor Mozaffar Ahmed in availing the jurisdiction of this Court as the Court did not find any element of Public Interest in the case and also the petitioner was not found personally aggrieved due to not having his connection with any existing bank.
 
Thereafter, in a recent case of National Board of Revenue Vs Abu Sayeed Khan and others reported in 18 BLC (AD) (2013) 116, our Appellate Division, after reviewing the views taken in the above cited series of decisions, has directed the High Court to be vigilant in entertaining the PIL cases in the following words:
 
“Now-a-days, it is noticeable that a group of lawyers have developed a tendency of filing PIL petitions on behalf of persons or organizations challenging the propriety of the Government in taking decision relating to policy matter, its development works, orders of promotion and transfer of public servants, imposition of taxes and fixation of tariff value by the authority for achieving dubious goal for generating publicity for themselves or to create public sensation. The High Court Division has been taking cognizance of those petitions without looking at whether or not such petitions are at all maintainable in the light of the principles settled by this Division in Mohiuddin Farooque, Professor Mozaffor Ahmed and Ms. Syeda Rizwana Hasan. It is also noticeable that after seeking an order from the High Court Division by filing a PIL, the lawyers are appearing before the electronic and print media propagating that the Court has made such and such directions, which suggest that those petitions have not been made for the cause of the needy or underprivileged or less fortunate people, who could not seek redress for a wrong done by the Government or a local authority, rather it were moved for achieving dubious goal for generating personal publicity.”
 
Then, in the said case, our Apex Court took the pain of formulating guidelines for the High Court Division which is as under:
 
“We reemphasize the parameters within which the High Court Division should extend its discretionary jurisdiction in entertaining a PIL.
 
  1. Before entertaining a petition the Court will have to decide the extent of sufficiency of interest and the fitness of the person invoking the discretionary jurisdiction.
  2. The Court while considering the question of bonafide in a particular case will have to decide as to why the affected party has not come before it and if it finds no satisfactory reason for non-appearance of such affected party, it may refuse to entertain the petition.
  3. if a petition is filed to represent opulent members who were directly affected by the decision of the Government or Public Authority, such petition would not be entertained.
  4. The expression ‘person aggrieved’ used in Article 102(1) means not any person who is personally aggrieved but one whose heart bleeds for the less fortunate fellow beings for a wrong done by any person or authority in connection with the affairs of the Republic or a Statutory Public Authority.
  5. If the person making the application on enquiry is found to be an interloper who interferes with the action of any person or authority as above which does not concern him is not entitled to make such petition.
  6. The Court is under an obligation to guard that the filing of a PIL does not convert into a publicity interest litigation or private interest litigation.
  7. Only a public spirited person or organ-ization can invoke the discretionary jurisdiction of the Court on behalf of such disadvantaged and, helpless person.
  8. The Court should also guard that its processes are not abused by any person.
  9. The Court should also guard that the petition is initiated for the benefit of the poor or for any number of people who have been suffering from common injury but their grievances cannot be redressed as they are not able to reach the Court.
  10.   It must also be guarded that every wrong or curiosity is not and cannot be the subject matter of PIL.
  11.   No petitions will be entertained challenging the policy matter of the Government, development works being implemented by the Government, Orders of promotion or transfer of public servants, imposition of taxes by the competent authority.
  12.  The Court has no power to entertain a petition which trespasses into the areas which are reserved to the executive and legislative by the Constitution.
  13.  A petition will be entertained if it is moved to protect basic human rights of the disadvantaged citizens who are unable to reach the Court due to illiteracy or monetary helplessness.
  14. Apart from the above, the following are some categories of cases which will be entertained:
  1. for protection of the neglected children.
  2. non-payment of minimum wages to workers and exploitation of casual workers and complaints of violation of labour laws (except in individual case).
  3. petitions complaining death in jail or police custody, or caused by law enforcing agencies.
  4. petitions against law enforcing agencies for refusing to register a case despite there are existing allegations of comm-ission of cognizable offences.
  5. petitions against atrocities on women such as, bride burning, rape, murder for dowry, kidnapping.
  6. petitions complaining harassment or torture of citizens by police or other law enforcing agencies.
  7. petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food adulteration, maintenance of heritage and culture, antiques, forest and wild life.
  8. petitions from riot victims”.
 
Now, let us vet the competency of the present petitioners in the light of the provisions of our Constitution, other laws and the decisions of the Apex Court of our and foreign jurisdictions discussed hereinbefore.
 
It is evident that the petitioners are the practising advocates of the Supreme Court of Bangladesh and the subject matter of these applications is not related to their personal issues, rather it is related to the interest of the Judges of the Supreme Court and, that being the scenario, we are to examine how they are aggrieved by the incorporation of the impugned provision of Section 4(1)(a) of the said Ordinance, 1978 and by the impugned actions of the respondents. It is the contentions of the petitioners that they are public spirited advocates and have come forward to remedy the injury caused to the administration of justice when they noticed that Judges of this Court are attempted to be maligned with a likely consequence of weakening the position of the judiciary. We find substance in the said contentions in that a lawyer has a vital interest in the independence of the judiciary as the legal profession is an integral part of the judicial system and, further, a lawyer is an Officer of the Court who sits and practises in the Court and, therefore, he has a legitimate interest in preserving the integrity of independence of the judicial system and if the integrity and interest of the judiciary is threatened by an act of a state functionary, naturally, it shakes the conscience of a lawyer.
 
When there appears some scheme and a design to demoralize Judges of the highest Court, lawyers feel perturbed as they are always serious in maintaining the high standards of fearless, impartial and unbending justice. One may be able to live in a world of logic detachment when unjustified abuses are hurled at one’s self personally, but when the question is of injury to an institution, such as the highest Court of justice in the land, one cannot overlook its effect upon national honour and prestige. It becomes a matter deserving consideration of all serious minded people who are interested in seeing that democracy does not flounder or pale in this country.  
 
In this connection it may be mentioned that in the celebrated judgment of the case of SP Gupta Vs. Union of India, AIR 1982(S.C) 149, (popularly known as Judges’ case, which is a 524-page judgment), it was observed by their Lordships that the profession of lawyers is an essential and integral part of judicial system and the lawyers may figuratively be described as priests in the temple of justice. They have special interest in preserving the integrity and independence of the judicial system, and if the integrity and independence of judiciary is threatened by any act of State or any public authority, they would naturally be concerned about it because they are equal partners with the Judges.
 
In our jurisdiction, in the land mark cases of the Secretary, Ministry of Finance Vs. Masdar Hossain and others reported in 52 DLR (AD) 82, Bangladesh and others Vs Md. Idrisur Rahman reported in 17 BLT (AD) 231 (popularly known as 10 Judges Case) Bangladesh Vs Advocate AKM Shafiuddin reported in 64 DLR 508 (which has subsequently been disposed of by the Appellate Division through the CP No.2212 of 2012), Government of Bangladesh Vs Advocate Manzil Morshed (CP No. 1172 of 2012, case relating to the medical allowances of the Judges of the Supreme Court of Bangladesh)  and Advocate Manzil Murshid Vs Bangladesh and others 33 BLD (HCD) 121 (case on the increase of the remuneration of the Supreme Court Judges where Rule having been made absolute, CP No. 1775 of 2013 is awaiting final disposal), Advocate Manzil Morshed V Government of Bangladesh and other (Writ Petition No. 100027 of 2011, where the circular of the Biman Bangladesh Airlines was challenged to be discriminatory on the ground of non-incorporation of the provisions for the judges to upgrade their tickets like other dignitaries below the Judges), the members of the judiciary i.e. the advocates and the judicial Officers were the petitioners who have been held to be competent to approach this Court in the event when an injurious action to the judiciary was taken by the state functionaries.
 
In Kamini Kumar Datta Memorial Lectures (supra, pages v, vi) Mostafa Kamal, J said
 
Constitutional development is no doubt an evolution of the Constitution through judicial decisions, but judicial decisions on the Constitution are the outcome of dedicated lawyering backed by intensive academic studies. The role of the Judges is no doubt important, but it is the practising lawyers who open the multiple keys to the Constitution and show to the Judges the wealth contained in it. A responsive Judge picks up the wealth thus exposed, although there have been and are Judges in all jurisdictions who need no keys. The wealth of the Constitution is stored in their wisdom. The lawyer has to know to pick it up bits and pieces”.
 
On top of getting support from the above landmark case laws and lexis of the jurists on the locus standi of the advocates of our country in PIL Cases in approaching this Court in the interest of the judiciary, “The Bangladesh Bar Council Canons of Professional Conduct and Etiquette” encourages the lawyers to take a standing in the establishment of social justice, which declares that “And whereas by their efforts Advocates are expected to contribute significantly towards the creation and maintenance of conditions in which a government established by law can function fruitfully so as to ensure the realization of political, economic and social justice by all citizens”(Fourth Paragraph of the Preamble).
 
Also Paragraph 1 of Chapter III of the said legal instrument prescribes the duty of a lawyer to the Court in the following words “It is the duty of an Advocate to maintain towards the courts a respectful attitude, not for the sake of the temporary incumbent of the judicial office, but for the maintenance of its supreme importance”.
 
Thus, upon reading through the above laws of the land and careful analysis of the Stare Decisis (Starred Decisions) of our Apex Court, it is our plain understanding that the lawyers are considered to have their status in the judiciary as members of the judicial fraternity and, in our modern judicial system, by virtue of their active engagement in legal profession in the Court, they are considered and believed to be the inseparable part of the judiciary and, accordingly, they have been imposed with a heavy duty of protection of the interest of the judiciary.
In the past as well, the members of the Bar could not turn a blind eye and shrug off their Constitutional responsibilities in the matters related to the independence of the judiciary, rather they have risen to the occasion being above all political bias joining hands with others to resist any unholy attempt to pollute and/or to ruin the highest judiciary which is the repository of the public.
 
That being the position of the lawyers in the judiciary, we see the petitioners’ present move in seeking redress for the alleged wrong done by the respondents in the matters of allocations of the houses for the Hon’ble Judges of Supreme Court as an innate reaction inasmuch as we are satisfied that their conduct, in moving these petitions, are not for personal gain or political motivation or for any other oblique purpose. We find that it was a bona fide step of all these writ petitioners to bring to the notice of this Court that there has been a violation of laws and norms in allocation of a particular bungalow type house to a particular Judge of the High Court Division of the Supreme Court and, later on, during the course of hearing of these writ petitions, the petitioners’ further exertion with a prayer for issuance of supplementary Rule to challenge the vires of the second part of Section 4(1(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 also demonstrate their bona fides inasmuch as we find their subsequent march as an effort to make out a fit PIL case on the ground that a handful of the Judges of the Supreme Court are persistently being victimized due to the operation of the said part of the law, hence, it is their contention that the same is liable to be declared ultra vires to Article 27 of the Constitution and a guideline should be given by this Court in the form of directions upon the respondents so that there will not be any scope for the respondents to allocate Government accommodations at their sweet will, whims and self-interest. Thus, we do not find any element of making any particular judge happy by moving the instant applications. Rather, we are satisfied that these are directed at endeavouring the establishment of the independence of the judiciary and rule of law.
 
Furthermore, apart from being lawyers, the advocates are conscious citizens of the country. In our way of understanding the spirit of our Constitution, as mirrors in the above cited Berubari’s case, the BELA’s case, the BRAC Bank case, the ETV case and the case of National Board of Revenue Vs Abu Sayeed Khan and others reported in 18 BLC (AD) 116, is that any public spirited conscious citizen may, bona fide, come forward for resolution of a grievance of a public nature through the Court of law for the benefit of the public, as opposed to the personal benefit, and our inevitable conclusion is that the petitioners are ‘person aggrieved’ within the meaning of Article 102 of the Constitution. In coming to our conclusion we have taken into our consideration the cautionary principles laid down by Mr. ATM Afjal, J in BELA’s case 49 DLR (AD) 1 and also the guidelines given by our Apex Court in the case of National Board of Revenue Vs Abu Sayeed Khan and others reported in 18 BLC (AD) (2013) 116 on top of other scores of decisions of our jurisdiction and that of India, Pakistan and U.K.
 
With regard to the issue of competency of this Court in adjudicating upon the instant cases, we may again profitably refer to the cases of the Secretary, Ministry of Finance Vs. Masdar Hossain and others reported in 52 DLR (AD) 82, Bangladesh and others Vs Md. Idrisur Rahman reported in 17 BLT (AD) 231 (popularly known as 10 Judges Case), Bangladesh Vs Advocate AKM Shafiuddin 1 LCLR [2012] HCD 339 (which has subsequently been disposed of by the Appellate Division in CP No. 2212 of 2012), Government of Bangladesh Vs Advocate Manzil Morshed (CP No. 1172 of 2012, case relating to the medical allowances of the Judges of the Supreme Court of Bangladesh)  and Bangladesh Vs Advocate Manzil Morshed 33 BLD 121 (CP No. 1775 of 2013), Advocate Manzil Morshed V Government of Bangladesh and other (Writ Petition No. 100027 of 2011). We may sum up the issue by noting that in course of dealing with the issue of standing of the present petitioners, it has been divulged and perceived that in all the cited cases the direct interests of the Judges of this Court were involved, nevertheless, the same were decided by this Court without being blamed as to getting predisposed. It is our considered view that while there is no separate forum for the adjudication of grievances related to the benefits and interests of the Judges of the Supreme Court, this Court being bestowed with the power of judicial review is not debarred to take up the present cases for its consideration. Furthermore, in a case where a judge’s criminality is required to be tried, there being no special forum consisting of non-judicial persons, we the Judges of this Court have never hesitated to award sentence, if found guilty. The maxim Nemo debet esse judex in propria causa, thus, hardly has the scope of application in such like cases in that the judiciary is an organ of the state and the said organ is staffed and run by human beings who may commit sin and, thereby, face trial and the outcome of the trial may be against or in favour of a single member of the judiciary or as a whole of the judiciary. Also, side by side, as a citizen of this country the judges are entitled to enjoy their lawful rights guaranteed in the Constitution and other laws of the land and if their rights are invaded by any state functionary or individual, they are entitled to have recourse to the competent Court of law.
 
Article 31 of our Constitution guarantees that it is an inalienable right of every citizen to be treated in accordance with law and to enjoy the protection of law.
 
Article 31: “Right to protection of law. To enjoy the protection of law, and to be treated in accordance with law, and only in accordance with law, is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Bangladesh, and in particular no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law”.
 
The Judges, thus, being the citizens of this country are entitled to benefit from the above Constitutional protection. Further, a Supreme Court Judge himself is an institution who can not act unscrupulously for his personal gain and, for this reason, all the citizens including the members of the executive branch are duty bound to pay homage to them.
 
In the case of State V Abul Hossain reported in 14 BLC (HCD) 223 it has been observed that:
 
“Let it be known to everybody, if it is not already known, that a Judge of the Supreme Court is an upholder of the Rule of Law and is a Justice of the Peace for and of the whole of  Bangladesh. Any disrespect shown to him, constitutes disrespect towards the Supreme Court and also to the Republic itself, because the Supreme Court wields the power of the Republic.”
 
The essence of the said maxim Nemo debet esse judex in propria causa, thus, is that no judge should try his own case and, further, in conducting the trial of a case where interest of other Judges, be that expressly or impliedly, are involved, the Judges should maintain impartiality. We can recall that we had indicated to the learned Attorney General, in course of making his submissions on the said issue, that this Court is not dealing with an isolated complaint regarding allocation or non-allocation of a house for a particular Judge, rather the onerous task devolved upon this Court is to examine the position of the impugned statute in line with our Constitution and other relevant laws of the land and, further, to see as to whether there is any need to frame a guideline for the executive to be observed in allocation of the superior type of houses to the dignitaries, particularly to the persons holding the Constitutional posts, as submitted by the learned advocate for the petitioners.
 
Judges interpret the law as they find it and, thus, not as they would like to do it. They are inherently conditioned by the training that they would undertake their judicial functions with dispassionate objectivity without being influenced by personal and individual predilections. The Judges of this Court are under the legal obligation to protect, preserve and defend the Constitution and to dispense justice in accordance with law without any fear or favour, ill will or affection, be it the subject matter of adjudication involving our own interest or the interest of any near and dear one. The Judges, thus, can never act selfishly to personally benefit from the judgment or order passed by them. Rather, they act upon the dictates of their conscience which invariably leads them to act according to their oath.
 
The law is reason unaffected by desire or free from passion as propounded by the great philosopher Aristotle.
 
Lord Mansfield sees the duties of a Judge in the following words:
 
“I will not do that which my conscience tells me is wrong, upon this occasion, to gain the hurrah of thousands, or the daily praise of all the papers which come from the press: I will not avoid doing what I think is right; though it should draw on me the whole artillery of libels; all that falsehood and malice can invent, or the credulity of a deluded populace can swallow.”
 
John Adams said:
 
“Judges are deaf as an adder to the clamours of the populace”
 
Judge Hiller B. Zobel comments:
 
“Must follow their oaths and do their duty, heedless of editorials, letters, telegrams, picketers, threats, petitions, panelists and talk-shows. In this country, we do not administer justice by plebiscite.”
 
Thus, we see the present applications to be one of our routine cases which we are dealing everyday as a Court of law without being partial to any parties to the litigations.
Accordingly, we find that the present Writ Petitions are maintainable at the instance of the petitioners and we also find that this Court is competent to adjudicate upon the cases. 
The resolution of the above technical issues in the affirmative leads this Court to undertake the core issues of the case namely, (i) the impugned actions of the respondents in allocation of the Government accommodation to the person holding Constitutional posts and (ii) the constitutionality of the second part of Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978.        
 
Let us first take up the actions of the respondents which have allegedly been taken in violation of the laws and norms of the land. The alleged actions are (i) illegal allocation of House no. 12 at Minto Road in favour of respondent no. 3, (ii) non-compliance of the recommendations made by the Hon’ble President of the Republic, (iii) withholding of the Supreme Court Judges’ applications for residence and non-cooperation of respondent nos. 1 and 2 in allocation of the residence to the Supreme Court Judges and (iv) illegal allotments of a number of bungalow type houses in favour of Secretaries to the Government or other officials below serial no. 9 of the warrant of precedence.
 
It is alleged by the petitioners that when Mr Justice Md Jahangir Hossain’s application for obtaining allotment of House no. 12 at Minto Road was lying before respondent nos. 1 & 2, they ignored the same and volunteered to allot the said house infavour of  respondent no. 3. It is further alleged that since the said application was recommended by the Honourable President of the Republic for allocation of the said house, the respondents have committed a serious illegality by not complying with the recommendation of the highest functionary of the Republic. It appears from annnexures 1, 2 & 3 that the application of Mr. Justice Md Jahangir Hossain has been shown to have been received by respondent no. 1 on 20.11.2012 though the same has been forwarded from the Office of the Honourable President on 10.11.2012, which appears to be an inordinate delay inasmuch as usually all the correspondences from the Office of the Honourable President reaches the concerned Ministries within a day or two. Even, if it was received on 20.11.2012, allocation of the house in favour of respondent no. 3 on 20.11.2012 (on the day of receiving of Mr. Justice Jahangir’s application) cannot escape from being exposed to question in the light of the fact that after receiving the letter from the Office of the President, the dispatch of the said allocation letter could well have been stopped. In any event, when a Judge of the High Court Division has asked for the same, the allocation letter should have been revoked inasmuch as a Judge of the Supreme Court holds a much higher post than that of a Secretary. Moreover, when the said application was recommended by the highest person of the Republic, the respondents had no option but to deal with the same first and comply with it but, instead, they showed the audacity of handing over of the residence to respondent no. 3 on 15.05.2013 i.e. after issuance of the instant Rules, which demonstrates the deliberate disregard to a Judge of the Supreme Court and the Honourable President of the Republic. Thus, the conducts of respondent nos. 1 & 2 clearly appears to be malafide.
 
Also, it is the allegation of the petitioners that while the applications for accommodation of a number of High Court Judges are not being dealt with for years, quick disposal of the application of respondent no. 3 on 20.11.2012, which was received only on 25.10.2012, demonstrates the arbitrariness and self-interest of respondent nos. 1 & 2. Furthermore, the petitioners have unveiled the fact that while a handful High Court Judges are kept in the pipeline for suitable residences, a number of Senior Secretaries, Secretaries and Additional Secretaries of the Government are occupying bungalow type houses.
 
Now, let us see what their duty is and what they have done. Respondent nos. 1 & 2 are entrusted with the functions of constructions of Government houses and thereafter maintain and allot the same to the deserving applicants from the Constitutional post holders and Government servants. In discharging their duties, they are required to act in accordance with the laws of the land and, thus, not being actuated by their sweet will and interest. Now, let us see what the law prescribes in the matters of allocation of residence to the Constitution post holders and whether the said respondent nos. 1 and 2 have acted lawfully.
 
Article 147(1) of the Constitution reads as follows:
 
(1) The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which this article applies shall be determined by or under Act of Parliament, ---
 
In compliance to the above mandatory provisions the legislature in their wisdom have enacted the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 and Section 4 (1) (a) of the same deals with the matters of accommodation of the Judges of the Supreme Court  which reads as under:
 
A Judge shall be entitled to, and provided with a furnished residence free from the payment of any rent and charges on account of municipal taxes and local rate and of the use of electricity, water and gas and until such residence is provided, a judge shall be paid a residence allowance of Taka, 26,600/- per month.
 
Thus, it transpires that the entitlement to a furnished house of a Supreme Court Judge is a statutory right stemming from the Supreme law, the Constitution. Therefore, making allocation of an accommodation to a Supreme Court Judge is an unbreachable duty of the State.
 
Furthermore, in the Warrant of Precedence the position of the High Court Judges is at serial no. 9 and it is worthy of mentioning here that the said Warrant of Precedence is framed and used for carrying out all sorts of functions of the State, not for ceremonial occasions only. If the provisions of the warrant of Precedence, for the arguments’ sake, is taken to be not applicable for the affairs of house allocation, nonetheless, by dint of statutory right, as enshrined in the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978, the Supreme Court Judges shall get preference over the Secretaries to the Governments.
 
Invoking the provisions of the Note 1 of the Warrant of Precedence which provides: “the order in the Warrant of Precedence is to be observed for State and ceremonial occasions as well as for all purpose of the Government” and agreeing with the view taken in the case of Ataur Rahman (Md) Vs Bangladesh and others reported in 62 DLR 329 it is our considered view that the provisions of Warrant of Precedence is applicable for all the purposes including the matters of house allocation and, thus, it is the duty of the respondents to ensure that the houses are provided for dignitaries listed therein as per their serial and positions and, accordingly, when the allocation of the superior type of houses for the dignitaries positioned at serial no. 5 to 8 in the Warrant of Precedence is completed, the High Court Judges shall be entitled to the same. However, the lists of the superior type of houses (annexures-x & x (1) portray an opposite scenario as these record that a good number of Secretaries to the Government have been allocated bungalow type houses. Without, first, accommodating the High Court Judges in bungalow type house or superior flats in any secured place, allotments of the same to the Government servants appear to be a bizarre action by the respondent nos. 1 & 2. If the same are left over and available after all the Judges have been provided with their houses, there might have been an option for them but until a single Judge or any other Constitutional post holder is left without residence, no Government servant shall be eligible for the said bungalow type houses in that the Judges of the Supreme Court are Constitutional post holders and their remuneration and privileges are guaranteed in the Constitution but the Secretaries to the Government are Government servants and their terms and conditions of services are governed by the ordinary law and rules.
 
Here, in the cases at hand, the respondents failed to comprehend that while the source of entitlement of the Supreme Court Judges to an accommodation is an Act of Parliament being a compliance to Article 147(1) of the Constitution, the source of entitlement to the accommodation of the Secretaries is Rules such as, Bangladesh Service Rules (BSR) and the Bangladesh Allocation Rules 1982 etc.
 
As per the words of the statute “A Judge shall be entitled to, and provided with”, respondent nos. 1, 2 & 5 are under a mandatory duty to arrange for accommodation, be that a hired or Government owned property. Entitlements prescribed in a statute shall always override and, thus, get preference to that of a Rule. An obligation imposed upon the Government functionaries vide the provisions of the Constitution may be compared with and termed as “Farj”, the highest obligation imposed by the holy Quran. If it is imposed by an act of Parliament, the same may be termed as “Wazib”, if the same is imposed by any Rule, it may be compared to “Sunnah” and if the source of obligation is any “Government Circular”, then the same may be considered as “Nafal”. The respondents are, thus, found to be more fanciful to perform “Sunnat” and “Nafal” leaving the “Farj” and “Wazib”. Islam being the state religion, as enshrined in Article 2A of our Constitution, the comparison is made for ease of understanding and aimed at simplif-ication of the duties and obligation of the respondents and, thus, without any prejudice to the Islamic law.

For the Secretaries to the Government, there is nothing to be jealous with the privileges and remuneration of the Judges of the Supreme Court, rather the state functionaries are expected to look after the Judges and should never disturb the Judges in enjoying their normal privileges and benefits, let alone providing any extra privileges.
 
In the cases of All Indian Judges’ Association vs Union of India (1993) 4 JT (SC) 618 the following observations were made:
 
“The judicial service is not service in the sense of employment of the judiciary; they exercise the sovereign judicial power of the State. They are holders of public offices as the ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State,  what is intended to be conveyed is that the three essential functions of the State and each one of them in turn represents the authority of the State. However, those who exercise the State power are the ministers, the legislators and the judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political. Similarly, the legislators are different from the judicial staff. So also the judges from the judicial staff. The party is between the political executive, the legislators and the judges and not between the judges and the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutional or functional. It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the judges and those of the members of the other service”.
 
Let it be known to the people what a Supreme Court Judge gets after his elevation and what he is to sacrifice. Before being elevated as a Judge from the Bench or subordinate judiciary, all the Judges of the Supreme Court were financially better off in terms of earnings given that as a District Judge they used to enjoy comfortable accommodation arrangement in an independent bungalow type house in the District Headquarters and also, in addition to their monthly salaries, there were various benefits in their service life such as, judicial allowance and some ancillary allowances for attending Government meetings, seminars and trainings. And the judges who have been elevated from the bar used to earn a significant and considerable amount of money in their legal profession. People from both the arenas by the strength of their solvent background do accept the offer of holding a position of a Judge of the Supreme Court only in an expectation of getting honour from the society, otherwise, the offer for accepting the post of a Judge of the Supreme Court hardly could entice them, if it is to be considered in terms of payment of remuneration. The Judges of the Supreme Court, thus, do not get financially anything or any other privileges, which make this post too precious to be lured, rather they accept the offer of elevation for the greater interest of the nation with an interest to contribute something in the development of the jurisprudence. The lure, thus, is of the dignity and esteem attached to the position of a Judge and not of enjoyment of a sound financial position or any other pecuniary interest.
 
Though the Judges require the state of solitude in preparing their verdicts, unfortunately still today the judges have not been provided with full logistic support that they need and the working condition of the judges also has not been upgraded as they have never been provided with adequate facilities and privileges besides raising the level of salary. The concerned organs of the State never give their attention and make earnest endeavour to this aspect of the case. The state functionaries should conceive and concede to the fact that in pronouncing a judgment, a Judge does everything on his own without taking assistance from his colleagues but the other state functionaries carries out their job being assisted or advised by their bosses or assistants, advisors or colleagues. Unlike other state functionaries, the Supreme Court Judges can never accomplish their works between 9 am to 5 pm, rather their work volume compels them to work day-night, even, during the vacations. They hardly find any time to go for social outings for recreation and with the passage of time in the said process they eventually become workaholics.
 
In accepting the position of a judge, thus, the lawyers of the Supreme Court as well as the District Judges are to sacrifice huge financial benefits and other equally lucrative prospects. The Judges of the Supreme Court are entrusted with the duties of a sacred nature and after being positioned as a Judge of the Supreme Court, they place themselves in an isolated and aloof environment having remained incommu-nicado where they find themselves to be in a fragile condition, a state of being overwhe-lmingly professional preoccupation that others may find difficult to fathom.
To portray the painstaking duty of a Judge, Chief Justice Harlan Fiske Stone expressed his feelings to the President Truman of the United States in the following words;
 
Few are aware that neither my predecessor, nor 1, in more than twenty years since I have been a Justice of the Supreme Court, have been able to meet the daily demands upon us without working nights and holidays and Sundays. The administrative duties of the Chief Justice have increased and many other duties have been imposed on him by acts of Congress which my predecessors were not called on to perform.............. Unlike the functions of an executive officer, practically none of these can be delegated (13th February 1946: cited at page 125 of the book titled “Judges and Justices”, supra).”
 
Justice William Brenan Jr narrated the Judges’ function in the following language;
 
The writing of opinion is not easy work. It always takes weeks, and som-etimes, months. The most painstaking research and care go into the task. Research, of course, concentrates on relevant legal materials-precedents particularly. But Supreme Court cases often require also some familiarity with other disciplines-history, economics, the social and other sciences-and the authorities in these area are, too consulted” (An Affair with Freedom Supra, page 336-338, also reproduced at page 192-193 of the book, “Judges and Justices”, supra).
 
Justice Blackburn of the United States Supreme Court relates the work load of a Judge of the Supreme Court in the following words;
 
I have never worked harder and more concentratedly than since I came to Washington Just five years ago. I thought I had labored to the limits of my ability in private practice, in my work for a decade as a member of the Section of Administration of the Mayo organization, and as a Judge of the Court of Appeals. Here, however, the pressure is greater and more constant, and it relents little even during summer months. One, therefore, to a large extent relies on experience and an innate and, hopefully, developed proper judicial reaction. One had better be right! Good health is an absolute requisite. The normal extracurricular enjoyment of life becomes secondary, if it can be said that they exist at all. “(Page 185, Judges and Justices, supra)”.
 
Justice Mostafa Kamal, in describing his own experiences of the job of judgeship, states;

Snatching sometimes away from my days’ (and nights’) Court work, I have prepared these lectures all alone in my study”. (Kamini Kumar Dutta Memorial Law Lectures 1994: Bangladesh Constitution: Trends and Issues: Page VIII).
 
The Supreme Court Judges are highly dignified persons whose appointments are made as per the provisions of the Constitutions and they are not subordinate and, thus, accountable to any authority including the Chief Justice, Prime Minister and President of the Republic in discharging their functions. Our Constitution, as provided in Article 94(4), has guaranteed the above position of the Judges. Moreover, Article 112 has asked all the authorities of the Republic to act in aid of the Supreme Court. Considering the above dignity of the position of the Judges of the Supreme Court, legislature in their wisdom have honoured the Judges of the High Court Divisions to hold the social status equivalent to a State Minister but it is curious enough that though there is no shortage as to the allocations of accommodations for other Constitutional post holders, either equivalent to the status of Supreme Court judges such as State Ministers or Election Commissioners or below to the Judges  such as Deputy Ministers, MPs etc, respondent nos. 1 & 2 are habitually coming out with a ready excuse of non-availability of accommodation for the Judges of the Supreme Court, which  seems to be dubious and implausible and these actions of respondents have hardly ever been under any scrutiny.
 
There are two vital reasons for allocation of residence to a Judge immediate after his elevations, which are (1) leading a community life is beneath the dignity of a Judge and (2) it will expose him to the members of the public. People will have easy excess to him which is bound to tarnish his image and in such situation a Judge may even be sold behind his back. Many of the judges of this Court reside in private houses and flats where there is no arrangement for safety and security. Besides, it exposes the judges to the members of the public who have easy excess to a judge. This kind of situation is not desirable. This makes the position of the judges vulnerable. In a developing country like ours, judges should maintain a distance from all and lead a secluded life for the reason that a judge should keep himself above all suspicion. In this regard we may follow the example of former Chief Justice Mr. Justice Shahabuddin Ahmed who, during the terms of office as a judge of this Court and the Chief Justice of Bangladesh, never allowed any one including his close relatives to visit his residence. He maintained a high degree of seclusion and that is ideal for our society.
 
The Judges of this Court are oath bound to impart justice to all people, including the members of the executive branches and legislature, according to law without fear or favour, affection or ill-will. Regrettably, the members of the Executive, without apprising themselves of the nature of tasks of the Judges, very often take a hostile stand against this Court and the Judges which is most unfortunate. The executive must try their best to rise above self-interest and parochial consideration and extend co-operation to Supreme Court Judges with their legal entitlements and privileges instead of being jealous of them.
 
It is not understood as to why the Secretaries, who have been occupying the bungalow type houses at Minto Road, Bailey Road and other places, have not chosen to stay in the flats earmarked for them as listed in annexure X(1) where a good number of Joint Secretary to Additional Secretaries are living. Those are F type accommodations and as per Rule 4 of the Bangladesh Allocation Rules, 1982, those are reserved and earmarked only for Senior Secretaries to Joint Secretaries and the Senior Secretaries/Secretaries would obviously get preference in getting allocation of the said earmarked flats as per the Rules, norms and practice. Until a single Secretary to the Government is in pipe line to get the said flat, the other officers with the rank below the Secretary should not be accommodated therein until the said earmarked type flats becomes available to them.
 
Thus, it appears that the actions of the respondents in allocation of the bungalow type houses or superior type flats have been taken in sheer violation of the obligation imposed upon them by the Constitution and the Statute. Therefore, the allotment of House No. 12 at Minto Road in favour of respondent no. 3 and the allocations of other bungalow type houses situated at Minto Road, Bailey Road, Dhanmondi, Gulshan and Banani to the Government servants, which have not been earmarked for any persona designate, are declared to have been done illegally.
 
We may now turn to the final issue of the instant Rules as to whether the impugned part of Section 4(1)(a) of the Ordinance, 1978 is liable to be deleted therefrom upon declaring the same ultra vires of Article 27, 29, 31 and 147 (2) of the Constitution and also repugnant to the scheme of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978.
 
The apparent reasons for attack on the impugned part of Section 4(1)(a) of the Supreme Court Judge’s (Remuneration and Privileges) Ordinance, 1978 are that, firstly, in case of non-availability of the houses/flats for the Supreme Court Judges, the concerned state functionaries get an extensive license not to provide the Judges with the accommodation despite the availability of bungalow type houses or superior type flats. Secondly, with the excuse of non-availability of the accommo-dation, the amount of money are being paid to the judges as residence allowance is too petty to compare with the facilities and benefits of the first part of the said Section 4(i)(a) of the Ordinance, 1978. And, thirdly, keeping the provisions of the payment of a specific amount of money as house allowances makes the Supreme Court Judges dependable on the executive and legislature as it requires a review to increase the amount of house allowances from time to time.

Now, let us take up the first point as to whether incorporation of the words “and until such residence is provided---------”, meaning “in the case of non-availability of the furnished houses”, creates a scope for the respondents to act arbitrarily in dealing with the Supreme Court Judges’ application for accommodation. It appears from the statements made in the supplementary affidavit of Writ Petition No. 5276 of 2013 that a bungalow type house at Mohammadpur is available for allocation but the same has not been shown in the list supplied by the respondents, which indicates that the concerned authorities who are entrusted with the duties of allocation of the houses for the Supreme Court Judges, are not earnest in tracing out the vacant bungalow type houses or superior flats for the Supreme Court Judges. Rather, they simply tend to avoid their duties by informing the Judges that houses are not available for allocation. It means that taking advantage of the second part of Section 4(1)(a) of the Ordinance, 1978, they instead of earnestly carrying out their duties as imposed upon them by the statutes in the following words “ shall be entitled to and provided with”, come out with the excuse of non-availability of the house and thereby abuse and exploit the provisions of the statute. Thus, we are of the view that the presence of the words “and, until such residence is provided”, in Section 4(1) (a) of the Ordinance frustrates the spirit of the statute which intends to actually provide a furnished residence for the Supreme Court Judges. It is our considered view that incorporation of any word/s in a statute, if gives unfettered discretionary power to the authority in taking a decision on a matter of statutory obligation, then, the presence of the said words is repugnant to the scheme of the said law and, consequently, deserves to be deleted therefrom. In the case of Dr. Nurul Islam vs Bangladesh reported in 33 DLR (AD) 201, the unfettered discretionary power of the Government as to sending any public servant on compulsory retirement was held to have been illegal being vitiated by malice in law.
 
Now, let us pick up the second point as to the payment of money to the Supreme Court Judges as residence allowance. All the Judges of the High Court Division of the Supreme Court do stand on similar footings and when a High Court Judge is allowed to enjoy a furnished residence free from any rent and charges of electricity, water and gas”, he enjoys a benefit of around Tk. 2(two) lacs and, on other hand, a Judge receives only Tk. 26,600/- as residence allowance because of non-availability of the furnished house, which appears to be a striking unequal treatment and, thus, ridiculous given that the very purpose of incorporation of residence allowance is to allow and enable the non-allottee Judges to privately arrange for their accommodation but the said amount, cannot even meet half the costs of a suitable house because most of the judges live in 4 to 5 bedroom flats which incurs costs of, inclusive of service charges, bills of gas, water and electricity, around seventy to eighty thousand taka and, similarly, the judges who live in their own flat or house, if those are rented out, would get a rent of around Taka seventy to eighty thousand from their tenants. In figuring out the amount of residence allowance, the concerned authority should have taken into consideration if the Government has to hire or requisition houses or flats of 4200-4500 square feet for the High Court Judges at a sparsely populated residential area in terms of being conducive to their security, it would cost around 1 lac taka, inclusive service charges and bills. Thus, it appears that the amount of residence allowance of Tk. 26,600/- is too low to arrange for a suitable accommodation for the Judges privately.
 
In this context, it becomes a pertinent question that on what objective basis or standard the amount of house allowance is assessed and determined. We did not get any clue to the said question from the respondents. In absence of any guidelines for assessment and determination of the amount of house allowance, there is always a serious likeliness of deprivation of enjoying rational amount of house allowance by which a Judge may be able to cope up with the expenses of privately rented house.
 
In our view, “the Committee on Pay and Privilege of the Supreme Court Judges” formed by the Government, as stated by respondent no. 5 in its affidavit in opposition, should have its authority from the Ordinance, 1978, which may be constituted by incorporating a Section in the Ordinance, 1978. The said Committee may be headed by the Auditor and Comptroller General of Bangladesh and the Finance Secretary, the Law Secretary, the Housing and Works Secretary, the Registrar of the Supreme Court and the Chief Executives of both the City Corporations of Dhaka should be the members of the Committee. The said Committee shall mandatorily sit, at least twice in every calendar year, may be in the last week of each June and December, for carrying out the following tasks (i) to decide as to whether there is any need to hire the flats/houses for the non-allottee judges, a better resolution of the accommodation problems in case of non-availability of the Government owned houses, (ii) to get the data and information as to living costs of a dignitary with his family including the amount of prevailing rates of house rent from the Dhaka City Corporations and from the Councilors of the Wards of the areas where the Supreme Court Judges are supposed to be housed such as the residential areas within the proximity of the Supreme Court or Dhanmondi, Gulshan and Banani and the areas where the Judges live in their own accommodation (iii) approve the rent agreements of the non-allotee judges entered with their landlords and their bills of electricity, gas, water and service charges (iv) to assess the rental value of the flats/houses of the judges who are living in their own acco-mmodation and to periodically review the said rental value on their own or upon the request of judges made through the Registrar and, if required, increase the amount of house allowance in order to adapt to the costs of living.
 
Now, let us take up the third point that incorporation of a specific amount of money as house allowance in the second part of Section 4(1) (a) of the Ordinance, 1978 makes the judges dependable on the executives as the concerned authorities never feel urge to spontaneously increase the same enabling the Judges to cope with the changed socio-economic condition. The past experiences lead us to believe that above contention is not a mere apprehension of the petitioners but, in true sense, it is a reality. Though the Judges should not be expected to approach the executive for their privileges which they are legally entitled to but unfortunately, in practice, the Judges do not get anything without approaching them. While, in this 21st century, the Judges of the Supreme Court are dealing with a huge number of litigations where the executives are the parties, it is not desirable that the Judges of the Supreme Court would be placed in a situation to keep contacts with the parties of the litigations, here the executive, pending before them. In other words, since the State in the present day has become the major litigant and the superior courts have become centers of turbulent controversies, some of which with a flavour of political repercussion, and the Courts have to face tempest and storm because their vitality and neutrality is a national imperative, and, in such circumsta-nces, the Government, namely the major litigant, cannot be justified in enjoying absolute authority as to sanctioning any particular privilege to its arbitrator. The executive cannot be allowed to enjoy the absolute authority in the matter of fixation of remuneration and/or with providing other privileges for the Supreme Court Judges as its ‘royal privilege’ or prerogative. If such a process is allowed to continue, the independence of judiciary will remain a distant dream.
 
It is often forgotten why a Court and its Judges are so important in comparison to other state functionaries and why they must be independent even while remaining otherwise a co-equal organ of the State. The reason is that all rights are rights against the State. The Supreme Court Judges must be able to overturn unconstitutional law passed by Parliament, it must overrule the illegitimate actions of the police, the bureaucrats, and the Army and even the President or the Prime Minister if they go against the law of the land. Only when the Supreme Court Judges have this power they can protect the citizen from the arbitrariness of the State. Moreover, the Court must protect bureaucrats against the Parliament, the Parliament against undemocratic forces. The Court must be able to protect the Military so that it can preserve national security. The Court must protect the rights of policemen and so on.
In the case of SP Gupta Vs President of India AIR 1982 SC 149, to describe the position and importance of the Judges and Judiciary, Justice P.N. Bhagwati articulated that :
 
“.............The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective. It is to aid the judiciary in this task that the power of judicial review has been conferred upon the judiciary and it is by exercising this power which constitutes one of the most potent weapons in armory of the law, that the judiciary seeks to protect the citizen against violation of his constitutional or legal rights or misuse or abuse of power by the State or its officers. The Judiciary stands between the citizen and the State as a bulwark against executive excesses and, misuse or abuse of power by the executive and therefore, it is absolutely essential that the judiciary just be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments is Sankalchand Sheth’s case (AIR 1977 SC 2328) (supra). But it is necessary to remind ourselves that the concept of independence of the judiciary is not limited only to independence from executive pressure to independence from executive pressure or influence but it is a much wider concept which takes within its sweep independence from many other pressures and prejudices. It has many dimensions, namely fearlessness of other power centres, economic or political, and freedom from prejudices acquired and nourished by the class to which the Judges belong. It we may again quote the eloquent words of Justices Krishna Iyer:
“Independences of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither judiciary made to opposition measure nor Government’s pleasure....
...... Judges should be of stern stuff and tough fibre, unbending before power, economic or political and they must uphold the core principle of the rule of law which says “Be you ever so high, the law is above you”. This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community. It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.”
 
Justice AR Cornelius in the case of Fazlul Qader Chowdhury Vs Muhammad Abdul Haque PLD 1963 SC 486 said about the duty of the Court:
 
“The duty of interpreting the Constitution is, in fact a duty of enforcing the provision of the Constitution in any particular case brought before the courts in the form of litigation.”
 
In the case of Secretary, Ministry of Finance Vs Masdar Hossain (2000) (viii) BLT (AD) 234 Chief Justice Mustafa Kamal said about the functions of the Judiciary:
 
“60.......When Parliament and the executive, instead of Chapter II of Part VI follow a different course not sanctioned by the Constitution, the higher Judiciary is within its jurisdiction to bring back the Parliament and the executive form constitutional derailment and give necessary directions to follow the constitutional course. This exercise was made by this Court in the case of Kudrat-E-Elahi Panir Vs Bangladesh, 44 DLR (AD) 319. We do not see why the High Court Division or this Court cannot repeat that exercise when a constitutional deviation is detected and when there is a constitutional mandate to implement certain provisions of the Constitution.
 
It is, thus, fundamental for the establishment of the rule of law that the judiciary should be allowed to function uninterruptedly without being influenced by the executives.
The above threadbare examinations leads us to hold that presence of an alternative option in Section 4(i)(a) of the Ordinance, 1978 in the event of failure by the respondents to provide the Judges with houses defeats the scheme of the law that “A Judge shall be entitled to, and provided with” in a three-fold way. Firstly, it paves the way for the concerned authorities to refrain from providing the Judges with furnished government houses, secondly, the residence allowance figured therein does not become of any use for the Judges to arrange for privately rented house and, thirdly, threatens the independence of the judiciary as the judiciary is pushed to be dependent upon the members of the executive for increase of the amount of the residence allowance by making overturns to them.
 
Thus, the facts and figures portrayed hereinbefore reveals that due to the aforesaid flaws and negative aspects of the incorporation of the impugned part of Section 4(1)(a) of the Ordinance, 1978, the non-allottee Judges are being victim of unequal treatment. Now, the question is whether the said victimization of the deprived Judges may be a ground for declaring the impugned law ultra vires. To find the answer, we have to first search for the authority and power of this Court to declare a law void.
 
Article 7 of our Constitution heralds the Supremacy of the Constitution.
 
  1. All powers in the republic belong to the people, and their exercise on behalf of the people shall be effected only under, and by the authority of, this Constitution. 
  2. This Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution that other law shall, to the extent of the inconsistency, be void”. (underlined by us) 
Is the impugned law inconsistent with any provisions of the Constitution and thereby requires the same to be declared void under the authority and power of Article 7(2). Here, the impugned part of Section 4(1)(a) of the Ordinance, 1978 has been branded to be contradictory with Article 27, 29, 31 and 147(2) of the Constitution. Since Article 27, 29 and 31 are grouped in the same Part (Part iii) of our Constitution and their modus operandi being same, for convenience of our discussion, we will take up those Articles later on.
 
We, therefore, undertake Article 147 (2), first, to see whether the impugned legislation is inconsistent with the same and thereby attracts the treatment of the scheme of Article 7(2) of our Constitution. We fancy to undertake the said scrutiny by examining the case laws of our jurisdiction and foreign jurisdiction with the spirit of Article 7(2) of our Constitution.
Article 147 (2) of our Constitution declares that:

(2) The remuneration, privileges and other terms and conditions of service of a person holding or acting in any office to which article applies shall not be varied to the disadvantage of any such person during his term of office” (underlined by us).
 
From a plain reading of Article 147(2) it appears that the State shall not make any legislation to the disadvantage of the Supreme Court Judges. But it has clearly been found by our minute examination and elaborate discussion made hereinbefore that the payment of house allowance of Tk. 26,600/- have been fixed to the disadvantage of the Supreme Court Judges.

In the case of Marbury Vs Madison (1803), Chief Justice Marshal recorded the supremacy of the Constitution in the following language:
 
“Thus, the particular phraseology of the Constitution of the United states confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”
 
In the Special reference Case No. 1 of 1964 (AIR 1965 SC 745), Chief Justice of India PB Gajendragadkar said :
 
In a democratic country governed by a written Constitution, it is the Constitution which is supreme and sovereign. It is no doubt true that the Constitution itself can be amended by the Parliament, but that is possible because Art. 368 of the Constitution itself makes a provision in that behalf, and the amendment of the Constitution can be validly made only by following procedure prescribed by the said article. That shows that even when the Parliament purports to amend the Constitution, it has to comply with the relevant mandate of the Constitution itself. Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that the sovereignty which can be claimed by Parliament in England, cannot be claimed by Legislature in India in the literal by absolute sense.   
 
In the case of Asma Jihani Vs Government of Punjab, PLD 1972 SC139 (relevant page-199) Chief Justice Hamoodur Rahman said :
 
“.........General Agha Mohammad Yahia Khan had, according to me, no authority to pass such legislation taking away the powers of the Courts in his capacity as President under the Provisional Constitution Order. The Martial Law introduced by him was illegal and, therefore, even as Chief Martial Law Administrator he was not competent to validly pass such laws ...”
 
In our jurisdiction also, scores of the judicial pronouncements are available where the vires of an Act of Parliament was challenged on the ground of the supremacy of the Constitution.
In the case of A.T. Mridha Vs State 25 DLR (1973) 335 (relevant page–344) Justice B. Haider Chowdhury noted the Supremacy of the Constitution in this way-
 
“10......The Constitution is the supreme law and all laws are to be tested in the touch stone of the Constitution (vide article 7). It is the supreme law because it exists, it exits because the Will of people is reflected in it.”
 
In the case of Md. Shoib Vs Government of Bangladesh 27 DLR 315 (relevant page-325) Justice D.C. Bhattacharya, J commented-
 
“In a country run under a written Constitution, the Constitution is the source of all powers of the executive organs of the State as well as the other organs, the Constitution having manifested the sovereign will of the people. As it has been made clear in Article 7 of the constitution of the People’s Republic of Bangladesh that the Constitution being the solemn expression of the will of the people, is the Supreme law of the Republic and all powers of the Republic and their exercise shall be effected only under, and by the authority of, the Constitution. This is a basic concept on which the modern states have been built up”
 
In the case of Anwar Hossain Chowdhury -Vs- Bangladesh reported in 41 DLR (AD) 165 (the 8th Amendment case), Article 100, as amended by the 8th amendment of our Constitution, and the notification of the Chief Justice towards implementation of the said amendment were challenged as ultra vires by two writ petitions. Our Apex Court by a majority of 3 to 1 declared the 8th amendment of the Constitution so far as it relates to the creation of permanent benches outside the Dhaka by substitution of Article 100 to be void on the ground that the amended Article 100 changed the character and nature of the functions and jurisdiction of the High Court Division as envisaged in our Constitution changing the basic structure of the Constitution. Thus, it was held ultra vires the Constitution. Since the birth of Bangladesh, our Supreme Court for the first time struck down an amendment to the Constitution made by the Parliament, the supreme and sovereign law making body under the Constitution relying upon the ratio decidendi of the following Indian cases; Keshavanda reported in AIR 1973 SC 1461, Indira Gandhi reported in AIR 1975 SC 1590, Minarva Mills reported in AIR 1980 SC 1789 and Woman Rao reported in AIR 1981 SCR 1 to base its decision. The Court held in particular:
 
“The Constitution stands on certain fundamental principles which are its structural pillars which the parliament cannot amend by its amending power for, if these pillars are demolished or damaged, then the whole constitutional edifice will fall down.  
If any provision can be called the ‘pole star’ of the Constitution, then it is the preamble. The impugned Amendment is to be examined on the touchstone of the preamble with or without resorting to the doctrine of basic structure. The preamble is not only a part of the Constitution, it now stands as an entrenched provision that cannot be amended by parliament alone. When parliament cannot by itself amend the preamble, it cannot indirectly by amending a provision of the Constitution impair or destroy the fundamental aim of our society. One of the fundamental aims of out society is to secure the rule of law for all citizens and in furtherance of that aim part VI and other provisions were incorporated in the Constitution. By the impugned Amendment that structure of the rule of law has been badly impaired and as a result the High Court Division has fallen into sixes and sevens-six at the seats of the permanent Benches and the seven at the permanent seat of the Supreme Court.
 
In the case of Khandaker Delwar Hossain -Vs- Italian Marble Company Limited reported in 2010 BLD Special, (the 5th amendment case), the Supreme Court declared all Martial Law Proclamations, orders, regulations, rules issued and executed under the first martial law regime, ratified by the 5th amendment of the Constitution, unconstitutional as it found that some basic structures of the constitution were destroyed through the 5th amendment of the Constitution.

In the 7th Amendment Case (the case of Siddique Ahmed –Vs- Bangladesh) reported in 2013 Counsel (Special), our Supreme Court declared all Martial Law Proclamations, order, regulation, rules issued and executed under the second martial law regime, ratified by the 7th amendment of the Constitution, unconstitutional as it found that some basic structures of the constitution were destroyed through the 7th amendment of the Constitution. 
 
In the case of Md. Abdul Mannan Khan –Vs- Bangladesh reported in the book “The 13th Amendment Judgment” published by the CCB foundation, the Appellate Division of the Supreme Court declared the provisions of the Amendment Act ulrta vires the Constitution.

In the case of Sultana Kamal Vs Bangladesh reported in 14 BLC (2009) 141, Section 5 of the Emergency Power Ordinance, 2007 was declared to be ultra vires the Constitution.
 
In the case of M. Samsul Haque and others -Vs- Bangladesh and others reported in 17 BLT (HCD) 523 an Ordinance namely, 'আদালত অবমাননা অধ্যাদেশ, ২০০৮' was declared to be ultra vires the Constitution by the High Court Division as the impugned legislation was found to have been promulgated in contravention of Article 93 and 58 (D) of the Constitution.
 
Also, in the case of Monzur Ahmed Bhuiyan and others Vs Adilur Rahman Khan and others reported in 18 BLC (AD) 47, the Apex Court uphold the judgment of the High Court Division which declared the 'স্বপ্রনোদিত তথ্য প্রকাশ অধ্যাদেশ, ২০০৮' to be ultra vires the Constitution.
 
In the case of Idrisur Rahman –Vs- Bangladesh reported in 60 DLR 714 where the vires of an ordinance namely, Supreme Judicial Commission Ordinance, 2008 was challenged and by a majority decision of a Special Bench of the High Court Division Section 9(4) of the said Ordinance was declared to be ultra vires the Constitution.

In all these cases either an Act of Parliament or a particular Section/provision thereof was challenged on the ground of being inconsistent to any Article of the Constitution and it was declared that there can be no Act/law, be that an amendment of the Constitution or enactment of a statue, which defies the supremacy of the Constitution and destroys the basic feature of the Constitution.
 
Like the above-discussed cases, to here, in this case as well we find that the Supremacy of the said Article 147(2) has been flouted by incorporation of the impugned part of Section 4(1) of the Ordinance, 1978. It follows that the second part of Section 4(1)(a) of the Ordinance, 1978 is violative of Article 147(2) of the Constitution.
 
Above were the case laws involving the challenges of the various Acts of Parliament for being inconsistent mainly with the scheme and spirit of the different provisions of the Constitution, other than Article 27, 29 and 31.
 
Now let us now take up the said Articles in tandem with Article 26 of our Constitution and some case laws of our jurisdiction and foreign jurisdiction, where a number of Acts of Parliament were struck down for being inconsistent with the provisions of Part III of our Constitution.
 
Article 26 declares that Laws inconsistent with fundamental rights to be void.
  1. All existing laws inconsistent with the provisions of this Part shall, to the extent of such inconsistency, become void on the commencement of this Constitution.
  2. The State shall not make any law inconsistent with any provisions of this part, and any law so made shall, to the extent of such inconsistency, be void”. 
Article 27 :

All citizens are equal before law and are entitled to equal protection of law
 
Article 29 :
  1. There shall be equality of opportunity for all citizens in respect of employment or office in the service of the Republic.
  2. No citizens shall, on grounds only of religion, race, caste, sex or place of birth, be ineligible for, or discriminated against in respect of, any employment or office in the service of the Republic.
  3. Nothing in this article shall prevent the State form-
  1. making special provision in favour of any backward section of citizens for the purpose of securing their adequate representation in the service of the Republic;
  2. giving effect to any law which makes provision for reserving appointments relating any religious or denominational institution to persons of that religion or denomi-nation;
  3. reserving for members of one sex any class of appointment or office on the ground that it is considered by its nature to be unsuited to members of the opposite sex. (underlined by us)
Let us also consider the meaning and scope of Article 5(1) and Article 15 of the Constitution of Pakistan of 1956 and 1962 respectively and Article 14 of the Constitution of India (Corresponding Article 27 to our Constitution) which reads thus:
 
“The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”. 
 
This again corresponds to the last Clause of the first section of the Fourteenth Amendment of the American Constitution which reads as follows:
 
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person with its Jurisdiction the equal protection of the laws”.
 
Now, the question before us is whether the above guarantees of the Constitution, as engraved in Article 26, 27 and 29, have been disregarded in the impugned legislation, namely second part of Section 4(1)(a) of the Ordinance, 1978.
 
Let us first understand what ‘the equality before law’ means.
 
Sir Ivor Jennings in his “The Law and the Constitution” has stated:
 
“Equality before the law means that among equals the law should be equally administered, that like should be treated alike”.
 
Dicey in his “law of the Constitution’, stated:
 
“Equality before the law does not mean absolute equality of men which is a physical impossibility, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law Courts”.
 
In the “Limitations of Government Power” by Rotundy and others “equal protection of the laws” has been described as:
 
“The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government’s ability to classify persons or draw lines in creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. Such a classific-ation does not violate the guarantee when it distinguishes persons as ‘dissi-milar’ upon some permissible basis in order to advance the legitimate interest of society”.
 
Professor Wills who in his book “Constitutional Law” Edn. 1 p. 578, viewed the Fourteenth Amendment in the following expressions:
 
“It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed’. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation”. It does not take from the States the power to classify either in the adoption of Police laws or tax laws,, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only  when it is without any reasonable basis. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis”.
 
Mahmudul Islam in his “Constitutional Law of Bangladesh” (3rd Edition, Page 227) comments that
 
Discrimination in the matter of condition of service of the same category of employees is a violation of Articles 27 and 29”.
 
The sum and substances of the above commentaries by the distinguished Authors is that Article 27 and 29 of our Constitution and Article 14 of Indian Constitution and the First Section of the fourteenth Amendment mainly mandates as to equality before law, meaning enjoying the guarantee of equal treatment with others with same footing in all the spheres of life, in particular, in enjoyment of equal opportunity in the event of entry in the public office/employment as well as after holding the public office or being employed therein.     
 
Let us cite some American Cases on Article 27 and 29 (therein First Section of the fourteenth Amendment).
 
The United States Supreme Court in Middleton Vs. Texas P & L Co, 248 U.S. 152, observed:
 
“It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds”.
 
Bruen J, in Gulf colorado Rly. v. Ellis,165 U.S. 150, however, warned against carrying this presumption too far and observed:
 
“To carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discri-minatory legislation is to make the protection clause of the 14th Amendment a mere  rope of sand”.
 
In Southern Rly Co. V. Grane, 216 U.S. 400 Day-J observed:

“Equal protection of the laws means subjection to equal laws, applying alike to all in the same situation”.
 
American Judges regard this provision of ‘equality before law, and ‘equal protection of law’ as the “basic principle of republicanism’ and the American Judges and Jurists made ‘a pledge of the protection of equal laws’ as their subject of interest in numerous cases.
 
We may now refer to some case laws of Indian jurisdiction on Articles 14 and 16 of the Constitution of India being akin to Articles 27 and 29 of our Constitution.
 
Bhagawati J, in Shujat Ali Vs. Union of India, AIR 1974, SC 1631 observed:
 
“The doctrine of classification should not be carried to a point where instead of being a useful servant it becomes a dangerous master”.
 
In Lachmon Das Vs. State of Punjab (supra) Subha Rao J, observed:
 
“Over-emphasis on the doctrine of classification or an anxious and sustained attempt to find some basis for classification may gradually and imperceptivity deprive the article of its glorious content. That process would gradually and imperceptivity substitute the doctrine of classification for the doctrine of equality”.
 
Chandrachud-J, in “Smt. Indira Gandhi V. Raj Narayan”, AIR 1975, SC 2279 described his idea of equality as:
 
“All who are equal are equal in the eye of law”, meaning that it will not accord favoured treatment to persons within the same class”.
 
In the Case of Bhoomi Vikash Bank Ltd Vs its workmen reported in AIR 1990 SC 495 it was held that payment of higher emolument to the staff of one unit as against that of other units is discriminatory.
 
In the case of State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75, the Supreme Court of India struck down S.5(1) of the West Bengal Special Courts Act, 1950 as vocative of Article 14 of the Indian Constitution. The impugned section of the law provides that a special court shall try offences or classes of offences or cases or classes of cases as the State Government may direct. Contention of the accused-respondent was that this provision gave arbitrary power to the Government to choose any accused person for trial before the Special Court which follows a harsher procedure than the ordinary courts and as such it offended Article 14 of the Constitution. This  contention was upheld with the observation that “the Act has completely ignored the principle of classification followed in the Cr. P.C. and has laid down a new procedure without making any attempt to particularize or classify the offences or cases to which it is to apply”.
 
In Dhirendra Kumar Vs. Government of West Bengal, AIR 1954, SC 424, a similar question arose and the Supreme Court upheld the contention of the accused-applicant that the impugned Notification of the State Government revoking its previous Notification, by which the accused was granted trial by Jury under section 269(1) Cr. P.C., and directing his trial with the aid of Assessors, offended the equality provision in Article 14 given that the classification of cases and offences to be tried with the aid of Assessors as per Government Notification was not based on any substantial distinction.
 
In Panduranga Rao Vs. Andhra Pradesh Public Service Commission, AIR 1963, SC 268, a rule made by the Government of the Province laying down certain special qualifications for recruitment of District Munsifs was challenged on the ground that it made arbitrary classification between Advocates of one High court and those of other High Courts of India. The rule says that a candidate for the post of District Munsif, among other things, must be an advocate of the High Court of Andhra Pradesh. The Supreme Court found that this rule introduced a classification between one class of advocates and the rest and that this classification was irrational inasmuch as there was no nexus between the basis of the classification and the object intended to be achieved by the relevant rule. The Court observed:
 
When any impugned rule or statutory provision is assailed on the ground that it contravenes Art, 14, its validity can be sustained if two tests are satisfied. The classification... must be based on an intelligent differentia which distinguished persons or things grouped together from others left out of the group, and the second is that the differentia must have a reasonable relation to the object sought to be achieved by the rule of statutory provision.”
 
In the case of Bank Nationalization reported in AIR 1970 SC 564, the Supreme Court, while deciding the question of violation of the right to equal treatment in Article 14 of the Indian Constitution, struck down section 15(2) of Banking Companies (Acquisition and Transfer of Undertaking) Act, 1969. Under the aforesaid enactment undertakings of fourteen Commercial Banks in India were taken over by the State and vested in the Union of India, and the Banks were prohibited from engaging in the business of banking in India. The Supreme Court of India struck down the offending provision of the Act on the ground that there was hostile discrimination against the Banks in that they were prohibited from carrying on banking business whereas other banks, Indian and foreign, were permitted to carry on the banking business. It was termed by their Lordships as a flagrant hostile discrimination against the fourteen named Banks.
 
The case of Indira Gandhi Vs. Raj Narayan (AIR 1975 SC 2299) is a glaring instance of discriminatory legislation offending “equality before law”. There, amended Art. 329-A(4) of the Indian Constitution was assailed, among other things, on the ground of arbitrary classification. Indira Gandhi’s election to Lokshabha held in March 1971 was held void by the Allahabad High Court and against that decision she preferred an appeal before the Supreme Court. During pendency of the appeal, Indian Parliament amended the Constitution inserting therein Article 329-A. Clause (4) of this Article made the existing Election Laws retrospectively inapplicable to Parliamentary elections of the Prime Minister and the Speaker; it kept the election of these two personages, who are members of Parliament, beyond the reach of any law past or present; it declared the disputed election of Indira Gandhi valid.
 
And further declared that the judgment of the Allahabad High Court was void and the election petition challenging her election abated. Existing election laws were however kept alive to be applicable to elections of all other members of the Parliament. The Supreme Court struck down clause (4) as grossly discriminatory.
 
The above Indian cases are some illustrations where the Courts found the impugned legislations to be inconsistent with provisions akin or similar to those in Part III of the Bangladesh Constitution and declared the same to be void under authority vested in a manner similar to Article 26 of our Constitution.
 
The broad principles governing the application and extent of the Article 14 (ours in Article 27 and 29) have been interacted and reiterated in so many Indian cases that “it would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of equality before the law has been applied” observed Mathew, J. in AIR 1974 SC 1300. In later decisions AIR 1979 SC 478 and AIR 1981 SC 2138 Chandrachud C.J. and Bhagwati, J. (as he then was) respectively observed that the proposit-ions applicable to cases arising under Article 14 have been repeated so many times during the last 30 years in course of “the avalanche of the cases which have flooded this court” since the commencement of the Constitution that they now sound almost platitudinous.
 
From the discussions of the above laws and cases on Article 14 of Indian Constitution and the last Clause of the first section of the Fourteenth Amendment of the American Constitution (which are similar to Article 27 of our Constitution), it can be summed up that there cannot be a single law to be applied uniformly to all persons disregarding their basic differences with others. Once the differences are indentified, then the persons or things may be classified into different categories according to those distinctions, which are known as ‘permissible criteria’ or “intelligible differentia”. The legislatures in the process of making law with certain object in view, which is either to remove some evil or to confer some benefit, are empowered to make classification on reasonable basis. Class legislation is forbidden but classification of persons for the purpose of legislation is permitted. To pass the test of ‘equality’ a classification, besides being based on intelligent differentia, must have logical relation with the object the legislature intends to achieve by making the classification. A classification is reasonable if it aims at giving special treatment to a backward section of the population. It is also permissible to deal out distributive justice by taxing the privileged class and subsidizing the poor section of the people. What is of fundamental importance in law-making is that while making a classification the legislature shall not act arbitrarily but make selection on rational basis.
 
In our Jurisdiction, in the case of Hamidul Huq Chowdhury Vs Bangladesh reported in 34 DLR 190, Section 6 of the Government-owned Newspapers (Management) Act, 1975 was declared to be inconsistent with Article 27 of the Constitution as the impugned section had granted unfettered and arbitrary power to enlist the printing and press companies for vesting their ownerships in the Government among the similarly situated companies.
 
In the case of Zainul Abedin Vs Bangladesh reported in 34 DLR 77, the Government Servants (Seniority of Freedom Fighters) Rules, 1979 was knocked down on the ground of being violative of Article 27 and 29 of the Constitution.
 
On the other hand, there are innumerable cases of our jurisdiction where the challenges to the vires of specific laws were found to be without merit and substance by the Courts such as the case of Bangladesh Krishi Bank -Vs- Meghna Enterprise and others reported in 50 DLR (AD) 194, SA Sabur Vs Returning Officer 41 DLR (AD) 30, Chandpur Textile Mills Ltd Vs Subordinate Judge reported in 2 BLC 50, Anisur Rahman Vs Bangladesh 12 BLC 22 and so on.
 
In the case of S.A. Sabur Vs- Returning Officer reported in 41 DLR (AD) 30, the vires of Section 7(2)(g) of the local Government Ordinance, 1983, was challenged on the ground that the said Section 7(2)(g) is discriminatory and thereby violative of Article 27 of the Constitution inasmuch as the said section though makes a provision disqualifying the loan defaulters to be a candidate of the Union Parishad but there being no such provision for disqualifying the MP candidates, the law was blamed to be discriminatory and our Appellate Division after reviewing a number of cases from India, Pakistan and U.S.A. rejected the contentions of the petitioners on the ground that the impugned piece of legislation had not been hit by Article 27 of the Constitution inasmuch as the Union Parishad Chairmans and the Members of Parliament are not similarly situated persons and the provision of equal treatment is applicable only when there will be unequal treatment among the same class being at par.
 
But, in the case at hand, all the Judges of the High Court Division are similarly situated dignitaries, irrespective of their age or date of elevation in the Bench and, as such, they being the members of same class deserve to be treated equally and no law should make any discriminatory provision for which one judge will enjoy some benefit and other Judge will be deprived of the same.
 
In the said SA Sabur’s case at page 55 (Para 69), his Lordship A.T.M. Afjal, J (as he then was) elaborated the principles governing the scope, nature and parameters of Article 27 in the following language.
  1. The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position, and the varying needs of different classes of persons require separate treatment.
  2. It requires that all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.
  3. it forbids class legislation but it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that the differentia must have  a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like, what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
  4. The State, in the exercise of its government power, has of necessity to make laws operating differently on different groups or classes of persons to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things to be subjected to such laws. The laws can make and set apart the classes according to the needs and exigencies of the Society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive.
  5. To overdo classification, however, is to undo equality. The doctrine of classification should not be carried to a point where instead of being an useful servant, it becomes a dangerous master, for otherwise, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterized by different and distinct at attainments.
  6. The Courts should not insist on delusive exactness or classification in any given case. Classification is justified if it is not palpably arbitrary.
  7. There is always a presumption in favour of the Constitutionality of a Statute and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. This rule is based on the assumption, Judicially recognized and accepted, that the Legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
Upon consideration of the philosophies propounded by these noble Judges and Philosophers as to the meaning of the “equality before law and equal protection of the law” it is this Court’s considered view that “Equality before law” should not be taken in its absolute sense to hold that all persons are equal in all respects irrespective of their different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess and others may lack. By the term ‘protection of equal law’, it is not meant that all persons or things are equal in all cases, rather it is to mean that the persons similarly situated should be treated alike. Provisions of equal protection, as engraved in our Constitution, guarantees that similar people will be dealt with in a similar way and people of different circumstances will be treated in a dissimilar way.
 
In the instant cases, the main ground for challenging the constitutionality of the second part of 4(1)(a) of the Ordinance, 1978 is that the Judges of the Supreme Court are being unequally treated albeit all of them are similarly situated. It appears to be a startling provision of law that while a Supreme Court Judge being provided with government accommodation is without any worries about maintaining the costs of accommodation, the non-allottee Judges are pushed in a situation to strive mitigating the awful state of affairs as to the same given that it is not possible for a non-allotee Judge to manage his accommodation affairs with a cost of Taka 26600/00, which is a grossly discriminatory part of the Ordinance, 1978 and, thus, repugnant to the object intended to be achieved by the relevant law.
 
From the above threadbare examination it appears that the presence of the second part of Section 4(1)(a) “--and until such residence is provided----” makes the deprived Judges victim of hostile and unequal treatment, thus, being the same inconsistent with Article 27 and 29 of the Constitution is required to be declared to be void for being ultra vires the Constitution.
 
Furthermore, in enactment of any legislation, the test of reasonableness is to be passed. Article 31 prohibits Parliament from passing an unreasonable or arbitrary law, both from the substantive and procedural points of view. From the substantive point of view a law will be violative of Article. 31 if the Court finds that it is so demonstrably unreasonable or arbitrary that the members of Parliament acting as reasonable men could not pass that law. In view of our findings made hereinbefore that the amount of Tk. 26,600.00 as residence allowance is clearly to the disadvantage of the privileges of a Judge, the fixation of the said amount is, thus, an unreasonable and arbitrary law.
 
In the case of Malpe Viswanath vs Moharashtra (1998) 2 SCC 1, it was held that a law when passed may be justified, but may later on become arbitrary or unreasonable with the lapse of time and change of circumstances.
 
Here, in these cases, it transpires from the chronology of the facts of fixation of the amount of house allowance that before 1990 when there was only 20-30 High Court Judges, there was hardly any shortage of bungalow type houses for the Judges and the provision regarding payment of money as was fixed as house allowance before 1990 was not so unreasonable as it stands today.
 
Accordingly, we declare the second part of Section 4(1)(a) of the Supreme Court Judges (Remuneration and Privileges) Ordinance, 1978 in the language of “ .......and until such residence is provided, a judge shall be paid a residence allowance of Taka, 26,600/- per month” void for being the same ultravires of  Article 27, 29, 31 and 147(2) of our Constitution.
 
It, thus, emerges from the discussions and observations made hereinbefore as well as from the mandates of the Constitution and other laws of the land that all the three Rules are destined to be made absolute.
 
Before we part with this judgment, we wish to quote the last Para of the case of Sayeda Rizwanna Hasan Vs Bangladesh reported in 18 BLC (AD) 54 which reads as follows:
 
Courts have always been considered to have an overriding duty to maintain public confidence in the administration of justice-often referred to as the duty to vindicate and uphold the majesty of law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. Doing justice is the paramount consideration and that duty cannot be abdicated or diluted by reason of improper application. It is recognized in the public interest that the authority acting by virtue of statutory powers cannot exceed his authority’’.
 
Having been enlightened by the ratio decidendi of the above case, we feel it appropriate to make some directions in this case upon the concerned authorities in order to ensure that the painstaking efforts of the petitioners do not go in vain. As in the case above, we make the following directions upon the respondents and others authorities;
  1. Respondent nos. 1 and 2 are directed to vacate all the bungalow type houses which are being occupied by the persons below the serial 9 of the Warrant of Precedence within thirty days from the date of receipt of this judgment and order and allot the same to the dignitaries positioned above serial No.16 of the Warrant of Precedence as per their exigencies as may be ascertained from the date of receiving their applications taking an exception to the case of Mr. Justice Md. Jahangir Hossain for being recom-mended by the Hon’ble President of the Republic.
  2. Since it is apparent that there is an acute shortage of bungalow type of houses and superior type flats and the respondents previously have not hired required number of flats/houses of 4,200 square feet (the size of flats which are being constructed for the Judges) to house the Supreme Court Judges temporarily until completion of the project of construction of 76 flats of 4,200 square feet for the Judges, therefore, in order to cope with the prevailing situation, respondent nos. 1 and 2 are further directed to hire the required number of flats/houses of 4,200 square feet  within the secured residential areas such as, Kakrial, Siddheshwari, Bailey Road, Eskaton Road, Dhanmondi, Gulshan, Banani and Baridhara and thereby allot the same in favour of the Judges of the Supreme Court at their earliest convenience.
  3. In the event that the Government wishes to replace the impugned part of Section 4(1) (a) of the Ordinance, 1978, “The Committee on Pay and Privilege of the Judges of the Supreme Court” should be made a perpetual statutory body, which must be constituted consisting of (i) Auditor & Comptroller General of Bangladesh, (ii) Secretary, Ministry of Finance (iii) Secretary, Ministry of Law and Justice, (iv) Secretary, Ministry of Housing and Works, (v) Registrar of the Supreme Court and (vi) the Chief Executives of both the Dhaka City Corporations. They will sit at least twice a year and the duty of the said Committee will be, among others, to approve the rent agreements of the non-allottee Judges with their landlords, to assess and approve the rental value of their property as claimed by the Judges who live in their own houses/flats upon submission of a written letter/invoice by the concerned judges and to okay the service charges, bills of electricity, gas and water incurred. The rough draft of the proposed law in the sum and substance may be in the following language: and until such residence is provided, a Judge of the Supreme Court shall be paid a monthly residence allowance of an amount of Taka as agreed with the land lord or the rental value of the properties of the Judges who live in their own properties and the bills of electricity, gas, water and service charges at actual under the approval of the “Committee on Pay and Privilege of the Supreme Court Judges”.
  4. Until the required number of superior types of flats are hired for the Supreme Court Judges or the second part of Section 4(1)(a) of the Ordinance, 1978 is reenacted in the light and form of the above Direction no. 3, the non-allottee Judges shall be entitled to claim their house allowance at actual, which will include their respective house rent as per their respective rent agreement with their landlords, service charges and bills of electricity, gas and water. Their invoices and vouchers would be submitted through the Registrar of the Supreme Court to the Auditor and Comptroller General of Bangladesh who, upon making an assessment on the prevailing costs of house rents together with bills and charges with assistance from the Dhaka City Corporations (South and North), will approve the same.
  5. In the absence of the aforesaid statutory Committee, for the Judges who live in their own properties the residence allowance should be fixed by the judges themselves in collaboration with the Dhaka City Corporation and concerned Ward Councilor. The maximum claimed allowance would be equivalent to the rent of a house of 4200 square feet in their respective areas together with all charges and bills at actual. After verifying the assessment of the house rent by the Dhaka City Corporation, the invoice of the rental value of the property together with charges and bills may be submitted through the Registrar of the Supreme Court to the Office of the Auditor and Comptroller General for his approval.
  6. The respondents are directed to comply with the aforesaid directions within one month from the date of receipt of this order and file affidavit of compliance before this Court within one week of the said compliance. 
With the above directions all the three Rules are made absolute.
 
The Office is directed to send a copy of this judgment and order to (i) the Auditor and Comptroller General of Bangladesh, (ii) the Secretary, Cabinet Division, (iii) the Secretary, Ministry of Finance, (iv) the Secretary, Ministry of law and justice (v) the Registrar of the Supreme Court and (vi) the Chief Executives of both the City Corporations of Dhaka in order to apprise them with their duties and responsibilities which have been conferred upon them by the above directions of this Judgment and order and, thereby, to enable them to comply with these directions.
 
There will, however, be no order as to costs.
 
Ed.