1. It is declared that the judicial service is a ‘service of the Republic’ within the meaning of Art. 152(1) of the Constitution, but is a functionally and structurally distinct and separate service from civil executive and administrative services of the Republic with which the judicial service cannot be placed on par on any account and that it cannot be amalgamated, abolished, replaced, mixed up and tied together with civil executive and administrative services. 2. It is declared that the word ‘appointments’ in Art. 115 means that it is the President can create and establish a judicial service and also a magistracy exercising judicial functions, make recruitment rules and all pre-appointment rules in that behalf, make rules regulating their suspension and dismissal under Art. 115 but Art. 115 does not contain any rule-making authority with regard to other terms and conditions of service and that Art. 133 of the Constitution and the Services (Reorganizations and Conditions) Act, 1975 have no application on the above matters in respect of judicial functions. 3. It is declared that the creation of BCS (Judicial) cadre along with the other BCS executive and administrative cadres by the Bangladesh Civil Service (Reorganization) Order, 1980 with amendment of 1981 is ultra vires the Constitution. It is also declared that Bangladesh Civil Service Recruitment Rules, 1981 are inapplicable to the judicial service. 4. The appellant and other respondents to writ petition are directed that necessary steps should be taken forthwith for the President to make Rules under Art. 115 to implement its provisions which are a constitutional mandate and not a mere enabling power. It is directed that the nomenclature of the judicial service shall follow the language of the Constitution and shall be designated as the Judicial Service of Bangladesh or Bangladesh Judicial Service. They are further directed that either by legislation or by framing Rules under Art. 115 or by executive order having the force of Rules, a Judicial Services Commission should be established forthwith with majority of members from higher judiciary of the Supreme Court and subordinate courts for recruitment to the Judicial Service on merit with the objective of achieving equality between men and women in the recruitment. 5. It is directed that under Art. 133 law or rules or executive orders having the force of Rules relating to posting, promotion, grant of leave, discipline (except suspension and removal), allowances, pension (as a matter of right, not favor) and other terms and conditions of service, consistent with Arts. 116 and 116A, as interpreted by us, be enacted or framed or made separately for the judicial service and magistrates exercising judicial functions keeping in view of the constitutional status of the said service. 6. The impugned orders in the writ petition dated 28 Februay 1994 and 2 November 1995 are declared to be ultra vires the Constitution for the reasons stated in the judgment. The appellant and the other respondents to the writ petition are directed to establish a separate Judicial Pay Commission forthwith as a part of the Rules to be framed under Art. 115 to review the pay, allowances and other privileges of the judicial service which shall convene at stated intervals to keep the process of review a continued one. The judicial service shall follow the recommendations of the Commission. 7. It is declared that in exercising control and discipline of persons employed in judicial services and magistrates exercising judicial functions under Art. 116, views and opinion of the Supreme Court shall have primacy over those of executives. 8. The essential conditions of judicial independence in Art. 116A, elaborated in the judgment, namely, (1) security of tenure, (2) security of salary and other benefits and pension and (3) institutional independence from the Parliament and the Executive shall be secured in the law or rules made under Art. 133 or in executive orders having the force of Rules. 9. It is declared that the executive Government shall not require the Supreme Court of Bangladesh to seek their approval to incur any expenditure on any item from the funds allocated to the Supreme Court in annual budgets, provided the expenditure incurred falls within the limit of sanctioned budgets, as more fully explained in the body of the judgment. Necessary administrative instructions and financial delegations to ensure compliance with this direction shall be issued by the Government to all concerned including the appellant and other respondents to the writ petition by 31 May 2000. 10. It is declared that the members of the judicial service are within the jurisdiction of the administrative tribunal. The declaration of the High Court Division to the opposite effect is set aside. 11. The declaration by the High Court Division that for separation of the subordinate judiciary from the executive no further constitutional amendment is necessary is set aside. If the Parliament wishes so, it can amend the Constitution to make the separation more meaningful, pronounced and effective. 12. It is declared that until the Judicial Pay Commission gives its first recommendation, the salary of Judges in the judicial service will continue to be governed by status quo [ante] as on 8 January 1994 vide paragraph 3 of the order of the same date and also by the further directions of the High Court Division in respect of Assistant Judges and Senior Assistant Judges. If pay increases are affected in respect of other services of the Republic before the Judicial Pay Commission gives its first recommendation, the members of judicial services will get increases in pay etc. commensurate with their special status in the Constitution and in conformity with the pay etc. that they are presently receiving.
Posted on: Wed, 23 Oct 2013 07:11:29 +0000
Trending Topics
Recently Viewed Topics
© 2015