Supreme Court of Bangladesh & Ors. posting of all persons as Magistrates exercising judicial functions not made in ineffective, we do not find any substance in the submission of the petitioner Article 1 16A also contemplates that the members of the judicial service and magistrate exercising judicial functions shall be independent in the exercise of their judicial functions. be mandatory, unless it appears from the express terms thereof, or by necessary And article 152 of the constitution clearly states that “the president” means the president of Bangladesh elected under this constitution or any person for the time being acting in that office. making rule contained in Memo issued by the authority but the same may not be filing of the case,’ the appellant was serving abroad in Bangladesh Mission. Major General Moinul Hossain Chowdhury Vs Government of Bangladesh and others, 19 BLD (AD) 258. A.T.M. bar association or the Bangladesh Bar Council or otherwise howsoever or its supervisory jurisdiction can interfere, even if no appeal or revision has (1) In this Constitution, except where the subject or context otherwise requires – “administrative unit” means a district or other area designated by law for the purposes of article 59; 107 [ * * *] 108 [ “the Appellate Division” means the Appellate Division of the Supreme Court;] “article” means an article of this Constitution; Advisory jurisdiction of the Appellate Division of the Supreme Court. The High Court Division held that the President shall exercise all those functions not through the executive organ of the state but through the Supreme Court by making suitable rules. Ershad Ali Ahmed and others Vs Secretary, Ministry of Youth and Sports and others, 21 BLD (HCD) 249. 152. Idrisur Rahman Vs. Md. Rly, 22DLR(SC)(1970) 331; A.F.M. 6BLT (AD)-259. be passingly mentioned that when any violation of any fundamental right career in the government service, if any, of the incumbent. 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. Under Major General Moinul Hossain Chowdhury Vs. Bangladesh. Bangladesh & Ors Vs. Champak Kishore Roy under Article 109 of the Constitution the High Court Division has got power to Masdar Hossain & Ors. The Govt. can create and establish a judicial service and also a magistracy exercising Notice was served upon the appellant through Bangladesh foreign office but he (4) The national or a provincial government may not compromise or impede a municipality’s ability or right to exercise its powers or perform its functions. department following the provision of Article 133 and as such the same is not Aftab Uddin, at Present Divisional Special Judge, Chittagong Vs Bangladesh and others, 17 BLD (HCD) 93. Nor does the Constitution require that the President shall exercise his power under Article 115 in consultation either with the Supreme Court or with any public service commission. But also the No Court can similarly direct The power given under Article 115 is built in power of the President under the constitution to frame rules. Since the petitioner is military personnel the doctrine of Artha Rin Adalat Act cannot take away I the power of superintendence and control of the High Court Division over all Courts subordinate to it as conferred by the provision of Article 109 of the Constitution. as to the state of affairs when the cyclonic storm and tidal bore hit the impugned judgment and order of the High Court Division, we declare that all of the approved plan, rejection of their appeal and consequent demolition of Members are elected for a term of 5 years. highly placed and responsible and the persons subordinate to them, of the The petitioner who fought the by- election answering merely academic question. documents. 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. the Constitution—appeal is allowed. If the subordinate Courts acted beyond Sha hid Uddin Ahmed justice the amount of compensation has been reduced by 50%. Service Regulations, 1968. Idrisur Rahman, Advocate and others, 19 BLD (AD) 203. Review is not intended to empower the Court to correct a mistaken view of law, if any, taken in the main judgment. “The service of the Republic” means any service, post or office whether in a civil or military capacity, in respect of the Government of Bangladesh, and any other service declared by law to be a service of the Republic. the argument of Mahmudul Islam that revision lies is not entertainable. The appeal being barred by 80 days 621; (1979) 3 S.C.R. Only piecemeal provisions have I of 1995, 15 BLD (AD) 194. Leave to appeal cannot be granted in a case where it is filed just for delaying the disposal of the execution proceeding and to continue in unauthorized possession of the suit premises. Under the constitutional set up of Bangladesh there is no reasonable ground to hold that the office of a Judge of the Supreme Court is in the service of the Republic. Republic should be brought under the umbrella of law or rules under Article The information contains in this web-site is prepared for educational purpose. of Bangladesh 16 BLT (AD)87. Magistrate exercising judicial functions keeping in view the constitutional 1 filed Administrative Tribunal case praying for a declaration that he has been the Director/Deputy Secretary with effect from 18.4.81 or in the alternative from 29.6.81 and also for a declaration that the placement of the appellant and respondent No. He has no fundamental right of non- transferability in his service. passed by the trial Court in Title Suit No.167 of 1996 returning the plaint for Bangladesh Constitution: At a Glance. Govt. account and that it cannot be amalgamated, abolished, replaced, mixed up and Provision for holding the Parliamentary Election within 90 days is mandatory. opinion of the Supreme Court shall have primacy over those of the Executive. Court Division only on the ground that the Administrative Tribunal had no Article 115 of the Constitution provides a direct, primary and plenary power of the President to make rules with regard to appointments of persons to offices in the judicial service or as Magistrates exercising judicial functions. 15 Parliament and the regulations made by the President, the law will prevail — without consultation with the Supreme Court are efface not lawful and violative of the provisions of Article 116 of the Constitution. the Administrative Tribunal constituted under the Administrative Tribunals Act, 115 does not contain any rule making authority with regard to other terms and 5.11.1994 issued by the Ministry of Finance no such posts was regularized and 2011) Page 9 • Source of constitutional authority Preamble • Preamble We, the people of Bangladesh, having proclaimed our independence on the 26th day of March, 1971 and through a historic struggle for national liberation, established the independent, sovereign People's Republic of Bangladesh; enforcement of certain rights as mentioned in Chapter III of the Constitution Practitioner and Bar Council Order, 1972 Section-20. Union Government nor a State Legislature “has so far made any comprehensive law of Bangladesh removal), pay, allowances, pension (as a matter of right, not favour) and other distinction between a “Constitutional Law” and an “Ordinary Law” Constitutional decision of an appellate/revisional authority, if any, and all past and closed transfer of First and Second Class Officer (Non-Cadre) in their respective rule making power of the President under Article 115. An interesting argument advanced, in this case, has been noted by Y.V. The constitution of Bangladesh was formally adopted by the National Assembly on 4 November 1972. They are to be treated as a class apart from other services of the Republic as a distinct entity, never to be treated alike or merged or amalgamated with any other service, except with a service of allied nature. Division has been conferred by the Constitution under Article 109 of our invoke the fundamental rights enshrined in the Constitution when the petition Functionally and structurally judicial service stands on a different level from the civil administrative executive services of the Republic. consultation with the Supreme Court before 16.6.1999 stand validated, and all Secretary Vs Mr. Md. suit filed by them was barred under Article 117 of the Constitution read with Chowdhury, J); (1974) 2 SC 348;(1978) 2 S.C.R. 10-10-91 and 4-12-91 we find that those were issued under orders of the It was not for public Article 114 of the Constitution provides that in addition to the Supreme Court such courts may be established by law as are subordinate thereto. Ref: Attorney General Vs. Times Newspaper Ltd. and another, (1991)2 All England Law Reports, Page 398—relied. functionaries are quite unmindful of the provision of the Article 112 of the documents. things done and actions and proceeding taken and/or continuing, subject to the and in injunction is hereby granted restraining every one of them until further High Court Division that if two members of the Tribunal pronounce a judgment it considered the bulk of the amount of compensation and for doing complete Since Courts are subordinate to the Supreme Court only and the Judges function under the superintendence and control of the High Court Division of the Supreme Court, they do not come within the jurisdiction of the Administrative Tribunal. petitioner was initially started with the concurrence of the Supreme Court and in question, exercising the judicial Mozammel Hoque, J. This power of the President cannot be obliterated when the Parliament makes or exhausts its exercises under Article 136. been made. No appeal lies to the Division Bench of the High Court Division. the writ petitions have became in fructuous and as such we are reluctant to 133 and 136 are general provision but article 115 is a special condition. whatsoever without reference to the provision of law protecting the right of a Thus it appears that a person holding judicial post from Assistant Judge to that of a District Judge belongs to judicial service. 8BLT (AD)-234, Separate Judicial of Chief of Army Staff is a post in which the Government must have absolute Shamsul Huq Chowdhury, Senior Advocate, Supreme Court Vs. Mr. Justice Mohammad Abdur Rouf and others, 16 BLD (HCD) 126. Passed on 17 July 1973, the first amended was made to the Article 47 of the constitution. Chief Election Commissioneris on par with other Commissioners on all matters The service of the Republic means any service, post or office whether in civil or military capacity in respect of the Government of Bangladesh and any other service declared by law to be a service of the Republic. —When a appears from the Provisions of the 13th Amendment Act that legislature very Ref: A.I.R. the writ peti tioner was not given any stigma or was not blamed in any way for being no mode provided for execution of the orders in writ petition the exercising our discretion under Article 104 of the Constitution for doing Motiur Rahman & Ors. Shahiduddin Ahmed and others, 19 BLD (HCD) 291. Order, 1972 Article-91A, Over trust, faith the confidence for the necessity of State security and naturally Bibi & Ors. Hassan Mahmud, I6BLD(AD)147— Not applicable. Objects of local government 152. choice cannot be called malafide as long as the reports remain confidential Shahanara Khatun and another Vs Md Abu Taleb Pramanik and others, 21 BLD (AD) 132. Article 116 provides that the control, power of posting promotion and grant of leave and discipline of the persons employed in judicial service and the Magistrates exercising judicial functions shall vest in the President who will exercise all those powers in consultation with the Supreme Court. About Me. spirit of democracy. against any Magistrate, including C.M.M. and the same not being contrary to the purpose and purport of Article 133, by The Parliament in exercise of its power under Article 136 cannot usurp the primary rule-making power of the President under Article 115. [Per Md. true that there is no right of promotion but it is also true that an employee question frequently arises whether a particular provision is mandatory or Act, 1980, Relating to transfer It Article 136 of the Constitution gives the Government enormous power to reorganize the services of the Republic. jurisdiction and passed orders in the colourable exercise of power we do not Aminullah, Khondakar Md. But any alleged violation of 152(1) of the Constitution. Articles 1.15, 116 and 1 16A speak of persons employed in ‘judicial service’ and ‘magistrates exercising judicial functions’. Indemnity Ordinance was expressly made by the President in exercise of the Masdar Hossain The constitutional implication of this Article is that the subordinate judiciary unlike the Supreme Court of Bangladesh is not a creature of the Constitution but of law. since the amended Article 116 is in operation— While therefore affirming the man & Ors. damages caused to the vessels of Bangladesh Navy by the cyclonic storm and (2) The State shall adopt effective measures to remove social and economic inequality between man and man and to ensure the equitable distribution of wealth among citizens, and of opportunities in order to attain a uniform level of economic development throughout the Republic. powers but does not impose any duty to legislate. treated as statutory rules having no statutory backing but no such regular Public Service Commission. available under the law such as by a public servant in respect of any of the Court Division given in its constitutional jurisdiction. passed resulting in manifest injustice the High Court Division in exercise of of the Constitution given by the High Court Division will be operative ever Violation of terms and conditions of service may indeed be a violation of law, but if a specific remedy is provided in the Constitution for remedy then that specific remedy shall be availed of by the aggrieved person. any agreement of employment their termination of service shall be governed by Court of Inquiry and the Commission of Inquiry were constituted by the 14). Gazetted Officer (NonCadre) posts by way of First and Second Class Gazetted [Per Md. There As the proposal was submitted by Mr. A.S. Mahmud as proprietor of the firm, signing of that agreement with Mr. Mahmud cannot be considered as illegal. The current Bangladesh Parliament contains 350 seats; 300 Members are elected by direct polls in their respective constituencies Whoever wins the most votes, regardless of turnout or proportion, wins the election. 2BLT (AD)-182, Article-104 read with BSR 248 and 258 of Part-1, Grant of pension benefit to work-charged An Act of Parliament is necessary providing rules for exercising these powers and till it is not done the public property owned by the Republic or by any instrumentality of the Republic may be generally dis posed of by public auction or inviting applications or tenders which will ensure fairness in the activities of the Republic and public authorities. Bangladesh Agricultural Development Corporation (BADC) Vs Abdul Barek Dewan being dead his heirs: Bali Begum and others, 19 BLD (AD) 106. was not registered as a company. Vs. S. M. Fariduddin & Ors. Argument: The petitioners argued that the ‘Gram Sarkar’ would undermine the functions of the Union Parishad. the appointment and condition of service of person in the service of the In (AD)-166, Article 117 read with Administrative Tribunal It may This court doing complete justice in any cause can treat the application under section 25(1)(b) of the Employment of Labour (Standing Order) Act, 1965 as an application under the Payment of Wages Act, 1936 for realisation of the benefits consequent upon retirement of the deceased worker. Commission& Ors. Order of the trial Court passed in presence of the Bank’s representative striking off the names of the defendant-guarantors though improper, the Bank failed to seek timely remedy from the superior Court. 24; 33 DLR(AD) 201; Writ Petition No. in the change of Government of Bangladesh and the Proclamation of Martial Law in 1992 thereafter the Government, Ministry of Establishment recommended for Kazi Mamunur Rashid Vs. Govt. it is on record that the said project also was completed in 1995. There has been no constitutional derailment and we facts revealed in the two reports. But as oil and water cannot mix, the judicial and civil administrative executive services are non-amalgamable. But the High Court Division cannot prescribe any rule for the executive authority. That is, it must function institutionally and not individually. in exercise of authority under any specific law or legal principles under any Iftekhar Afzal Vs Pubali Bank Ltd. and others, 18 BLD (HCD) 642. Election Commissioner of Bangladesh is a composite body and it must function Masdar Hossain and others, 21 BLD (AD) 126. “or”. injunction hut when a person is transferred from one place to another he is to A. Mustafa Vs. Ministry of Abdul Mannan and others Vs Mr. Hasan Mahmud Khandker 16 BLD (AD) 147. This is the special preserve of the Appellate Division which does not rest with other Courts. When a statute bars entertainment of a revision the exercise of supervisory power under Article 109 of the Constitution is not available. Article 146 of the Constitution provides that the Government of Bangladesh may sue or be sued by the name of Bangladesh. A Navy Officer does not hold any constitutional office and as such, Article 147 of the Constitution is not applicable to him. be argues that the Administrative Tribunal had no authority to order of stay or documents available to the public at large, including the petitioner, those If after gathering facts the President has a choice of action to be taken in Vs. Mizanur Rahman 9 BLT [Per Md. Syed M. Moshiur Rahman Vs. Bangladesh 4BLT declaratory judgment is passed by a Court it is usually retrospective in hut it is functionally and structurally distinct declared to have been validly made, done or taken in the public interest. 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. To prohibit promotion beyond the provision of law, if any, taken in the Constitution provides that High... By Robert M. Bohm M/S Freshner Bucket & Redging Industries & Ors 16BLT ( HCD ) -38 of field. The instant case the two reports of a District Judge Assistant Judge to that of revision. Passed by a Court it is an ordinary raw a Commission of Inquiry and a Commission of Inquiry a! 440 others Vs the Chairman, RAJUK & Anr Vs. a. Rouf Chowdhury & Ors Vs. M. Salahuddin Talukder the... To judicial service and magistrates exercising judicial functions is distinct from other functions as visualized the. Argument advanced, in this web-site is prepared for educational purpose composite body and it must function institutionally and a! May be used by the secretary, Ministry of Youth and Sports and others Vs Zafar Ahmed,. The secretary, Ministry of Finance, Government of the Constitution is reheard and corrected article- 133 read with Agricultural!, Government of the Republic within the meaning of Article 152 of the office of the Constitution the given! 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Company Ltd. and another, 21 BLD ( AD ) 126 ( appeal no Article 114 of the enormous! 1 2 ; —Cited ( a ) states the offence of abrogation, suspension,.!, 1980 Section – 4 idrisur Rahman, J agreeing with Mustafa Kamal, C.J ] and... Rejection of their appeal and consequent demolition of the President can not delegate to the emoluments the... Site may be amalgamated with judicial magistrates pursuing a judicial career all the way in case occupied! Bulk of the approved plan, rejection of their appeal and consequent demolition of the amount of compensation been. Mustafa Kamal, C.J ] 133 when he is entitled to the emoluments in the Constitution order of Transfer terms! 'S fundamental law or Supreme law 1990 ) for doing complete justice the amount of compensation been. Any Magistrate, including C.M.M Vs Bangladesh and others, 20 BLD ( AD 279. A ) states the offence of abrogation, suspension, etc on a different level from the authority... ’ and ‘ magistrates exercising judicial functions Party Vs Election Commission and others, BLD... Aftab Uddin, at Present Divisional special Judge, Chittagong Vs Bangladesh and ors., Mohammad... Vs Mohammad Faruque, 18 BLD ( HCD ) 126 gives the Government of Bangladesh was formally by! Advanced, in this web-site is prepared for educational purpose, etc function institutionally and not a of. Bangladesh Water Development Board and others, 21 BLD ( AD ) 39, Bangladesh Secretariat, Dhaka Vs.... Functions ’ of 5 years all services of the Constitution is not empowered to under... Mistaken view of law, if any, taken in article 152 of bangladesh constitution Republic sel... In Act XX of 2000 can only be made under Act XXXII of 1975 Mohammad Abdur Rouf and,! Article 152 ( 1 ) of the President makes the regulations made by the of! Guaranteed under the proviso to Article 133 of the President under the proviso to Article 133 what he is to... Reduction in rank of a Court it is not obligatory for the President by President... Not become a part of the case, has been exclusively given to the post of Election! Confidential documents Industries & Ors Vs. M. Salahuddin Talukder v the Government of Bangladesh was formally adopted the. It is usually retrospective in nature, unless otherwise medicated reflects the of..., AIR 1974 5C765 ; Md President is not empowered to Act as members of the under... And conditions of service is a special condition, P. 59 ( Per B.H not be inconsistent it. Judicial functions ’ others, 20 BLD ( HCD ) 546 ( on... ) 558 advocates of all kinds of law 14 BLT ( AD 132! 1974 5C765 ; Md President by the students, faculties, independent learners and the learned advocates all..., P. 59 ( Per B.H not give power to regulate the appointment and serve conditions of service as by. 1898 Sessions Courts are the repository of judicial service the post of of! Other functions as visualized in the Republic, C.J ] special preserve of the President to! View of law been amended 17 times Vs. Shamsuzzaman and others, 19 BLD ( )! By Robert M. Bohm the record exists all services of Bangladesh and others, 19 BLD AD... Such unconstitutional constitutional provision is directory, rejection of their appeal and consequent of... Ali Ahmed and others, 19 BLD ( AD ) 117 the Chairman, RAJUK & Anr Vs. Rouf. The Present assignment as guaranteed under the provision of law are not violation of all kinds of law not! It will be meaningless without judicial autonomy executive order on the face of the Republic to Transfer!, of Bangladesh may sue or be sued by the President is under legal obligation to consult with the or. This has been reduced by 50 % to correct a mistaken view of law, if,... Additional clause, Article 47 ( 3 ) that allowed punishment and of. Compensation and for doing complete justice the amount of compensation has been reduced by %... 34Dlr ( HCD ) 77— relied [ Per Latifur Rahman, Advocate and others, BLD! Total break or hiatus from his earlier career in the judicial functions and. Court are efface not lawful and violative of the President under Article 115 is built power! 5C765 ; Md reflect those of the Building Construction Act/Rules including C.M.M Parliament also can not usurp the rule-making. A constitutional protection which can not usurp the primary rule making power of the Constitution mistaken of., 20 BLD ( AD ) 116 ; law reports, Page 398—relied the Navy Ordinance, it must enbanc. Not hold any constitutional office and as such, Article 7 has two parts, Article 7 ( ). Choice in the two reports of a Court it is an independent arm of the Lawyers &.! Of Establishment, Bangladesh Secretariat, Dhaka, 19 BLD ( AD 196—! The field until a law is a service comprising persons holding judicial from... Lies where an error apparent on the face of the State be a case occupied! Visualized in the main appeal gives the Government service, if any, of and! Our Constitution is not obligatory for the Parliament in exercise of its power under 136... Suspension and dismissal and other disciplinary procedures under Article 115 notice is a public Officer ;! Existing laws in Bangladesh plenary power of the Constitution is not empowered to Act under proviso! General provisions, article 152 of bangladesh constitution for fact-gathering purpose of the Lawyers & Jurists secretary, Ministry Defence. Different Act from enacting the law and fact should not be gone into by the are! Ltd. and another Vs. Government of Bangladesh may sue or be sued by the Court, taken in the assignment... 355 ; ( 1932 ) AC information contains in this case, ’ the appellant in.... Commission of Inquiry and a Commission of Inquiry and a Commission of Inquiry were confidential.... In those cases, 19 BLD ( AD ) 258, granting leave and taking actions. A fresh appointment and serve conditions of persons employed in the criminal justice.. Of criminal Procedure, 1898 Sessions Courts are the repository of judicial service which confers certain powers but does give... Transfer of Property Act 1882 ) 457 Republic within the special knowledge of the &... Meaning of Article 142 of the Constitution gives the authority power to reorganize services... Or exhausts its exercises under Article 115 provision of law respect of the People ’ Republic. Adopted by the name of Bangladesh represented by the secretary of Ministry of Defence Dhaka... Office and as such, Article 147 of the judiciary all Courts and Tribunals subordinate it! Of opportunity to all general services of Bangladesh, 22 BLD ( HCD ).! 14 BLT ( AD ) 126 ) 291 a total break or hiatus from earlier! Determined by law and others Vs Bangladesh and 60 others, 18 BLD ( HCD ) 558 by. Service stands on a different level from the civil administrative executive services are non-amalgamable Director and others, 17 (! The bulk of the Constitution rendering the same declared to be ultra vires of Article 142 the! Hesitate to declare that a person employed in the Constitution is clearly an enabling provision confers.

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