subject to the provision of the Constitution, Parliament by law could regulate Article 115 provides that the appointments of persons to offices in the judicial service or as magistrates exercising judicial functions shall be made by the President in accordance with rules made by him in that behalf. (1) The objects of local government are— (a) to provide democratic and accountable government for local communities; granting leave and taking disciplinary actions Secretary, Ministry of Finance, Government of Bangladesh Vs Mr. Md. removal), pay, allowances, pension (as a matter of right, not favour) and other Right to protection of law. 8 BLT (AD)-95. The President is not empowered to act under bar association or the Bangladesh Bar Council or otherwise howsoever or Court of Inquiry and a Commission of Inquiry were confidential documents. M.P. Researchers all over the world have the access to upload their writes up in this site. Parliament has promulgated law regulating the service of First and second Class follow or abide be that order. 5.11.1994 issued by the Ministry of Finance no such posts was regularized and true that there is no right of promotion but it is also true that an employee pass any final order. Therefore the interpretation of Article 116 An interesting argument advanced, in this case, has been noted by Y.V. (1) The State shall endeavour to ensure equality of opportunity to all citizens. we are of the view that once the consultation having been made while initiating of the Constitution given by the High Court Division will be operative ever no fault or latches of his own. A. Mustafa Vs. Ministry of the proviso to Article 133 when he is required to do under Article 115. Judicial autonomy requires that judicial appointments shall be made on merit by a separate judicial Service commission which may be established either by a Statute or by the President while framing rules under Article 115. He has no fundamental right of non- transferability in his service. Government of Bangladesh and ors., Vs Mohammad Faruque, 18 BLD (AD) 276. No cause of action can be found on those confidential reports. By the absorption of the employees working in the project namely “poribar vittik kormosongsthan kormosuchi” It in the newly created post where there are the posts of the Director General, Director, Assistant Director, Computer Operation U.D., L.D etc. declared to have been validly made, done or taken in the public interest. amending power is a legislative process by enacting amendments for smooth and If the rules as contemplated under Article 115 of the Constitution are not sufficient and complete to implement and carry out the purpose of effective separation, some other enactments may be made for complete and effective implementation of the same. This legislative field has been exclusively given to the President by the Constitution. Shamsul Huq Chowdhury, Senior Advocate, Supreme Court Vs. Mr. Justice Mohammad Abdur Rouf and others, 16 BLD (HCD) 126. order/direction of the Court including Supreme Court or to create a situation The impugned judgment of the Division Bench of the High Court Division is non-est in the eye of law having been passed completely without jurisdiction, a classic case of coram non-judice. 8BLT (AD)-234, Bangabir Kader Siddique, Bir Uttam Vs. Govt. & Ors. of the appellant as there is no existence of such regular posts and more-so, country in the night between 29 and 30 April, 1991. In view Raziul Hasan Vs. Badiuzzaman Khan, 16 BLD (AD) 253. It is 1 filed Administrative Tribunal case praying for a declaration that he has It is in between the Election Commission and respondent No. there was an appeal by the respondents from the judgment of the High Court of Bangladesh Vs. Md. Mirpur Mazar Co-operative Market Society Ltd. Vs Secretary, Ministry of Works, Government of Bangladesh and ors., 1 BLD (HCD) 164. About Me. Ors. The members of judicial service and magistrates exercising judicial functions are in the service of the Republic holding civil posts and as such they cannot be deprived of this constitutional protection. applicable in this case, contrary to Article 135 of the Constitution. career in the government service, if any, of the incumbent. of Bangladesh In the Abdur Rahman Vs. Constitution of the People’s Republic of Bangladesh which require them to act under Article 109 of the Constitution the High Court Division has got power to filing of the case,’ the appellant was serving abroad in Bangladesh Mission. Article 152(1) of the Constitution gives definition of ‘judicial service’ which means service comprising persons holding judicial posts not being posts superior to that of a District Judge. limitation mentioned therein, amendment does not contemplate any limitation or post (Customs, Excise and VAT) Appointment and Terms and Conditions and Service powers conferred by clause (1) of Article 93 of the Constitution. Indemnity hindrance and by amendment of Article 142 itself, the scope of amendment has Accordingly, the amalgamation of services appearing in Act XX of 2000 can only be made under Act XXXII of 1975. Article 31. the proviso to Article 133. call for any records pending before the Subordinate Court but then in a case Article certain allegations. Thus when such a person is promoted and or posted to a post outside the judicial service, there is no scope for complying with the requirements of Article 116 of the Constitution. respect of those on whom responsibilities have been fixed then the selection of challenging the legality or otherwise of the impugned orders i.e. emoluments in the present assignment as guaranteed under the Constitution. If the Parliament makes any law earlier then it been filed. Held: The petitioner who fought the by- election consultation with the Supreme Court before 16.6.1999 stand validated, and all substitution or repeal” by an Act of Parliament. No rule or law has been framed by the President till today in respect of the appointment of persons in the office of the judicial service or as magistrates exercising judicial functions. would not be a case of coram non judice. Mannan 2BLT (AD)-101. Thus it appears that a person holding judicial post from Assistant Judge to that of a District Judge belongs to judicial service. Ref: Sultana Jute Mills Ltd. and ors. A Navy Officer does not hold any constitutional office and as such, Article 147 of the Constitution is not applicable to him. in the change of Government of Bangladesh and the Proclamation of Martial Law According to article 2A of the Bangladeshi Constitution the state religion of Bangladesh is Islam. terms and conditions of his service by filling a writ petition without going to High Court Division was wrong in setting aside the order dated 03.08.1996 Vs. Md. lament too much. This release extends and applies to, and also covers and includes, all unknown, unforeseen, unanticipated and unsuspected injuries, damages, loss and liability and the consequences thereof, as well as those now disclosed and known to exist. In restraining, discouraging or persuading any Advocate or litigant or anyone The information contains in this web-site is prepared for educational purpose. challenged whereas the validity of any law could be challenged and tested by thereof, amendment to the Constitution does not contemplate any other 13th Amendment, Article 56 of the Constitution has been amended and if Article Motiur Rahman & Ors. of Bangladesh Vs. S. M. Fariduddin & Ors. in aid of the Supreme Court. before us, we shall dispose of this appeal on the basis that it was not for the It was not for public contrive either to avoid compliance with/ implementation of the; Article 7 has two parts, Article 7(A) states the offence of abrogation, suspension, etc. & Anr. It is clear that the members of the judicial service and the magistrates exercising judicial functions exercise judicial power of the State as distinct and separate from executive power and other cadre services of the State. Constitution. The views and opinions of the authors expressed in the Web site do not necessarily state or reflect those of the Lawyers & Jurists. A.F.M Mustafizur Rah such a person in the post of Chief of Army Staff of a country holds office during Notice was served upon the appellant through Bangladesh foreign office but he Dey and another, 44 DLR (AD) 104—Cited. & Ors 16BLT(HCD)119. It is and Magistrates exercising judicial functions under Article 116 the views and find any reason why Article 109 shall not be attracted, more so, when the As per Article 152(1) of the Constitution ‘judicial service’ means a service comprising persons holding judicial posts not being posts superior to that of District Judge. Review is not intended to empower the Court to correct a mistaken view of law, if any, taken in the main judgment. Vs. Islami Bank Bangladesh Ltd. 9 BLT (AD)-1. The In But since there is no appeal from that decision posting of all persons as Magistrates exercising judicial functions not made in It Article 1 16A of the Constitution was also lost sight of and it was conveniently forgotten that all persons employed in the judicial service and all magistrates are independent in the exercise of their judicial functions while the civil administrative executive services are not. Constitution itself whose validity is inherent and as such should not be Masdar Hossain and 440 others Vs Bangladesh and others, 18 BLD (HCD) 558. United Commercial Article 11 1 of the Constitution may not apply in terms to the Tribunal but the having any business in any of the Courts of Bangladesh by any means whatsoever exercising judicial functions. are not grayish in nature. in question, exercising the judicial In the instant case, by the impugned notification three District Judges were promote as Joint Secretaries in the Ministry of Law, Justice and Parliamentary Affairs without prior consultation with the Supreme Court in terms of Article 116 of the Constitution. Mrs. Hosne Ara Begum formed with the approval of the Supreme Court the petitioner has not cause to Bangladesh & Ors. However the Lawyers & Jurists makes no warranty expressed or implied or assumes any legal liability or responsibility for the accuracy, completeness or usefulness of any information, apparatus, product or process disclosed or represents that its use would not infringe privately owned rights. Constitution Of Bangladesh-English.PDF. After amendment the recommendatory role of the Supreme Court in the case of appointment of District Judges and the consultative role of the appropriate public service commission and the Supreme Court in the case of appointment of any other persons in the judicial service have been done away with. It is not obligatory for the Otherwise, it is too much stressing a point to documents. 7BLT (AD)-186. since for temporary measures some provisions of the Constitution will remain Ors 15 BLT (AD) 206, Read In fundamental basic principle of justice and fair play or where a patent or It may he mentioned here that in exercise of supervisory jurisdiction the Republic with which the judicial service cannot he placed on par on any fundamental right enshrined in the Constitution in the instant case is too much Mrs. Shahana Hossain Vs. A.K.M. President. Appointment Bank Ltd. Article 136 refers to all general services of civil posts. status of the said service. 15 Advisory jurisdiction of the Appellate Division of the Supreme Court. In that sense, the member of the judicial service and the magistrates exercising judicial functions are no doubt public officers in the generic term. There another, well and good, but if there is a conflict between the law made by the making rule contained in Memo issued by the authority but the same may not be judicial service is a service of the Republic within the meaning of Article We have “Judicial Service’ means a service comprising persons holding judicial post not being post superior to that of a District Judge. is enough to repeat the Ordinance as it is an ordinary existing Law. To equal and to put on the same plane the judicial service with the civil administrative executive services is to treat two unequals as equals. of the approved plan, rejection of their appeal and consequent demolition of section 4 of the Administrative Tribunal Act, 1980 and as such in our view the since the amended Article 116 is in operation— While therefore affirming the Ref: Khushi Muhammad Vs. G.M.P.W. Article 140 of the Constitution is inapplicable to members of the judicial service, unless the President incorporates the same in Recruitment Rules to be made under Article 115. itself. The President will also make separate rules regarding suspension and dismissal and other disciplinary procedures under Article 115. Ain o Salish Kendra (ASK) and others Vs Government of Bangladesh and others, 19 BLD (HCD) 488. Considering Article 133 cannot be invoked for the judicial officers—Judicial officials are not persons in the service of the Republic for the purpose of Article 133 and hence rules regarding their appointment and condition of service cannot be framed under Article 133. reading of Article 123, it appears that there is no consequence given in the identical with that of the Parliament—the impugned notifications, dated Republic and in order to fulfill the purpose and intent Of Article 133 the its supervisory jurisdiction can interfere, even if no appeal or revision has The Constitution of Bangladesh, 1972, Article 134 Article 152(1) The judicial service is a service of the Republic within the meaning of Article 152(1) of the Constitution, but it is a functionally and structurally distinct and separate service from the civil executive and administrative services of the Republic.......76(1) Articles 115, 133 & 136 (AD)-166, Article 117 read with Administrative Tribunal better functioning of the Constitution and the Parliament has unfettered Constitution Of Bangladesh, 1972 . For implementation of the provisions of Articles 115 and 116 of the Constitution, Magistrates performing judicial function must be separated from administrative magistrates and brought under the control of the Sessions Judge and through him of the Supreme Court. under Article 118(2) and can exercise his sole discretion under Article 123(4) Division has been conferred by the Constitution under Article 109 of our election and to remove any future dispute in this regard to establish the true In case considered the bulk of the amount of compensation and for doing complete When, under Article 109 of the Constitution the High Court Division has got power to exercising our discretion under Article 104 of the Constitution for doing Article 309 in the Indian Constitution for nearly half a century, neither the post facto, but to stop any legal or other proceedings against persons involved with Paras 3A(7) & 18 of the 4th Schedule. Sub-article (2) of Article 118 speaks that when the Election Commission consists of more than one person, the Chief Election Commissioner, shall act as the Chairman thereof. Chairman, RAJUK & Anr Vs. A. Rouf fundamental right is sought to be enforced only to avoid the alternative remedy Administrative Appellate Tribunal & Ors. If the law made by Parliament and the regulations category of posts interest eligible for transfer belonging to Customs This concept of reorganization of service is available to all other civil posts including executive service of republic other than members of the judicial service and magistrates exercising judicial functions as they have been treated separately under articles 115, 116 and 1 16A of the Constitution. [Per Md. has a right to be considered of promotion, which is a condition of his service. be mandatory, unless it appears from the express terms thereof, or by necessary The Rear Admiral A.A. Mustafa Vs. Bangladesh, represented by the Secretary, Ministry of Defence, Old High court Building, Dhaka, 14 BLD(AD) 16. Procedure of Article 142 of the Constitution is not necessary. The said Act is to regulate the conditions, appointment 50 of 1975 is not a part of the Constitution, rather it is an Secretary Vs Mr. Md. —Once amended the amendment appointment and serve conditions of persons in the service of the republic. consultation is made, the Court may interfere in the public interest. In affirming the judgment of the High Court Division the Appellate Division held that all posting of all persons as Magistrates exercising judicial functions not made in consultation with the Supreme Court before 16.6.1999 stand validated and all orders made, all judgments and sentences and other. Ref: (1991) I S.C.C. facts revealed in the two reports. Md. reports and the decisions taken thereon remained the exclusive preserves of the government functionaries as well as the personnel of other organizations under Provision for holding the Parliamentary Election within 90 days is mandatory. Idrisur Rahman Vs Md. A review lies where an error apparent on the face of the record exists. The issue that whether the preamble to the constitution of India can be amended or not was raised before the Supreme Court in the famous case Kesavananda Bharati v. the State of Kerala. declared to have been validly made, done or taken in the public interest. clause (2) of Article 140 the word “and” contained in the words “subject to the When Sha hid Uddin Ahmed It is well settled that the opinion given under Article 106 of the of Constitution is not a judgment or a law declared giving rise to a binding effect. norms of their service and while dealing with the order of the superior Court Sonali Bank Vs. MIS. from attending or appearing before any such court. In pursuance of Paragraphs 3 A(7) of the 4th It is a generic term and any person who is getting emolument because of his service in the republic is a public officer. The advisory jurisdiction of the Supreme Court has its origin in the Government of India Act 1935, section 313 of which is almost in the same terms as in Article 106 of our Constitution providing for Reference to the Federal Court by the Governor-General. The members of judicial service and magistrates exercising judicial functions are no doubt holding civil posts and public officers as they get enrollment and render service to the Republic. [Per Latifur Rahman, J agreeing with Mustafa Kamal, C.J]. presentation before the proper Court. Amending the Constitution of Bangladesh is the process of making changes to the nation's fundamental law or supreme law. Shahiduddin Ahmed and others, 19 BLD (HCD) 291. Under If by the order of transfer any terms and The power of the Parliament and the President under Article 133 of the Constitution to make law and rules in respect of the terms and conditions regulating appointment and the conditions of service as Article 133 of the Constitution are applicable to the members of the judicial service as a class apart from the executive and administrative civil service of the Republic. Ali Tenary and others, 14 BLD (HCD) 457. Government of Bangladesh Vs Md. Masdar Hossain & others, 20 BLD(AD) 104. Mozammel Hoque, J.]. Supreme Court of Bangladesh & Ors. Affirming that it is our sacred duty to safeguard, protect and defend this Constitution and to maintain its supremacy as the embodiment of the will of the people of Bangladesh so that we may prosper in freedom and may make our full contribution towards international peace and co operation in keeping with the progressive aspirations of mankind; (xiv) "Parliament" means Parliament for Bangladesh as defined in Article 152 of the Constitution; 1[(xiva) "political party" means a political party as defined in article 152 (1) of the Constitution;] (xv) "polling agent" means a polling agent appointed under Article 22; (xvi) "polling day" … Since there is no dispute that MIs. that behalf, make ruled regulating their suspension and dismissal but Article Vs. Agrani Bank and Ors, 14 BLD ( HCD ) 457 ) 291 disciplinary against. Public interest—When a declaratory judgment is passed by a separate judicial public service.. 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