Abstract

Masder Hossain challenged Bangladesh Civil Service (Re-Organization) Order, 1980 and the Orders dated 28.02.1994 and 02.11.1995 as being discriminatory and violative of fundamental rights. The High Court Division made the Rule absolute and the Appellate Division unanimously allowed the Appeal in part. The Appellate Division held that the impugned Orders flagrantly violated the concept of independence of judiciary and the theory of separation of power incorporated under Article 22 of the Constitution. The Appellate Division summarized its Judgment in 12 points and concluded that the Judicial Service is service of the Republic but it is functionally and structurally distinct and separate service from the civil executive and administrative service of the Republic. The Judicial Service cannot be placed on par and cannot be ambulated, abolished, replaced, mixed up and tied together with the civil executive and administrative services. Following this Judgment, Judicial Service Commission for the appointment of judicial officers and a separate pay roll structure have been established. However, the disciplinary rules of the judicial officers were still controlled by the Executive. Following the forceful resignation of the then Chief Justice, the then Appellate Division approved the disciplinary rules with the control of the Ministry of Law and thereby finally compromised the meaningful separation of the Judiciary from the Executive.