This edition of ‘From the Court Corridor’ curates the notable pronouncements of the High Court Division (HCD) and the Appellate Division (AD) of the Supreme Court (SC) of Bangladesh in December 2022.
HCD issues rule over quota system in the recruitment of primary school teachers
On 29 December 2022, the High Court Division questioned the quota system in recruiting teachers in government primary schools. It issued a rule upon the concerned bodies of the government to explain as to why Sections 8 (2) (Ga) and 8 (2) (Gha) of the ‘Government Primary School Teacher Recruitment Rules, 2019’ those deal with the recruitment of the teachers based on different quotas should not be declared unconstitutional. In the rule, the HCD also wanted to know from the respondents as to why they should not be directed to appoint the writ petitioners in the vacant posts of their respective district or upazila according to the merit list.
The Law Secretary, Public Administration Secretary, Education Secretary, and Director General of the Directorate of Primary Education have been asked to respond to the rule within four weeks. The HCD bench of Justice Md Nazrul Islam Talukder and Justice Biswajit Debnath passed the order after hearing a writ petition filed by 152 job seekers.
The Directorate of Primary Education issued a circular on 18 October in 2020 to recruit teachers. The writ petitioners applied for the job and they appeared in the viva voce after qualifying for the written test. However, finally, they didn’t get the job and now they are claiming that they have been deprived of the job due to the quota system described in the rules.
Advocate Shamim Sardar appeared in the court hearing on behalf of the writ petitioners and said only the 20 per cent quota for male candidates is discriminatory. That is why we have challenged the quota system of the rules, he added. According to Sections 8(2)(Ga) and 8(2)(Gha) of the ‘Government Primary School Teacher Recruitment Rules, 2019, a total of 60 per cent of the vacant posts will be fulfilled by female candidates, 20 per cent by the dependent candidates and the remaining 20 per cent by male candidates. It also provides that 20 per cent of the total teachers must be recruited from science graduates. If 20 per cent of science graduates can not be found, then the authorities will follow the merit list.
The High Court Division has shown vigilance in addressing the derogation of Constitutional rights as the provisions of the ‘Government Primary School Teacher Recruitment Rules, 2019’ appear as violative of Article 29(3) of the Constitution, especially when unemployment problems are prevalent in the country. Article 29 (3) is an equitable provision and positive discrimination is allowed only in order to achieve equality of opportunity in public employment. The absence of reasonableness in laws enabling such discrimination must be traced and remedied.
HCD should dispose of criminal revision on the basis of evidence on record
The Appellate Division of the Supreme Court has observed that the High Court Division as a revisional court ought to have disposed of the criminal revision on the basis of the evidence already on record. On 26 December 2022, A four-member bench of the Appellate Division headed by Chief Justice Hasan Foez Siddique passed the observation while delivering a verdict upon hearing a leave to appeal petition, filed by former Khilgaon Police Station officer-in-charge Helal Uddin against a High Court order.
The Apex Court at the same time rejected and criticized the High Court verdict that directed the Fifth Metropolitan Sessions Judge Court in Dhaka to hold a fresh hearing on the appeal by Helal Uddin against his three-year sentence handed down by a magistrate’s court for torturing Dhaka University student Abdul Kader in custody in 2011. Apex court said, “The order of rehearing by the appellate court below is found to be uncalled for, particularly after a decade.”
In the early hours of 16 July 2011, Kader was returning on foot to his university hall from the residence of his aunt at the doctors’ quarter at Holy Family Hospital. Kader stated in the case that some plainclothes police personnel approached Kader, detained him and kicked him when he was near the Anti-Corruption Commission headquarters at Segunbagicha. The police took Kader to the Khilgaon Police Station even though he identified himself as a Dhaka University student. On the morning of July 16, 2011, Kader was taken before the then OC Helal Uddin to extract from him a false confessional statement. As Kader refused to make such a statement, OC Helal beat him up, causing serious injuries to his leg, backbone and other parts of his body. OC Helal then hit Kader with a chapati under the left knee and maimed him, said the verdict.
The Apex Court asked the High Court Division to hear the revision afresh. A single-judge HCD bench of Justice Fatema Najib was directed to dispose of Helal’s revision within six months.
Chapter XXXIII of the Code of Criminal Procedure,1908, creates the scope for revision in criminal cases. The High Court Division is empowered under Section 439 of the Code to exercise its revisionary powers. But the learned Court must be extremely cautious in issuing orders and the reasoning must be supported by the evidence on record. The Court has to apply its judicial mind and avoid making wholesale orders inconsistent with the evidence on record.
HCD rules over the decision to stop the migration process under the cluster admission test system
The High Court Division on 27 December 2022, issued a rule upon the concerned bodies of the government to explain in 10 days as to why the decision on stopping the migration process in admitting students at public universities should not be declared illegal. It also asked the authorities to explain as to why they should not be directed to admit the students who had been enrolled under cluster system according to the merit list. The HCD at the same time stayed the decision on stopping the migration process in the case of the writ petitioners. The High Court bench of Justice Md Khasruzzaman and Justice A K M Rabiul Hassan passed the order after hearing a writ petition filed by three admission seekers.
Rubel Miah, Saqeb Amed and Alvee filed the writ petition on 26 December 2022, challenging the authorities’ decision to stop the migration process in admitting students in the public universities, namely the students enrolled under cluster admission test. Education Secretary, vice-chancellors of the universities, those enrolled students under cluster admission test process were made respondents in the petition. Barrister Badruddoza Badol, assisted by Barrister Kazi Zawad Badruddoza, appeared in the court hearing on behalf of the writ petitioners, while Deputy Attorney General Bepul Bagar represented the state.
Barrister Badruddoza said, ‘[t]he admission seekers fell into trouble as the authorities have stopped the migration process. The migration process was continued till the fifth merit list, however, the authorities have stopped it from the sixth merit list. As a result, the students who scored more than 55 marks are not able to take advantage of the migration process. As students were getting chances in more than one university, now they have fallen into trouble as migration has been stopped. The students will not be able to get admission in the upper tier universities even though the seats are vacant.’
Although the authorities concerned took the decision to complete the admission process within a month to avoid the session jam, the authorities have not completed the admission process even after four months of taking the admission test. On the contrary, now the migration system of the university has been stopped and the students are in dire straits. Although the examination programme was completed on 20 August, the cluster authorities kept the students for almost two months in the name of updating the website. Then the admission process started from the month of November. So far, university migration has been started from six merit lists, but the authorities concerned have stopped migration from the seventh merit list. In this situation, the students who got more than 55 marks are not able to take advantage of university migration.
HCD orders to transfer the Gang rape in MC College case to speedy tribunal
The High Court Division on 15 December,2022, ordered the concerned bodies of the government to transfer a case that was filed in connection with the sensational incident of gang rape in the Murari Chand College (MC College) campus in Sylhet on 25 September 2020, to a speedy trial tribunal within 30 days. The HCD bench of Justice Farah Mahbub and Justice Ahmed Sohel passed the order while delivering a verdict regarding the issue. Lawyers Sabrina Zarin and Barrister Abdul Qaium Liton appeared in the court on behalf of the petitioner, while Assistant Attorney General Abul Kalam Khan Doud represented the state.
Earlier on 16 August 2022, the HCD issued a rule upon the concerned bodies of the government to explain why they should not be directed to transfer the case to a speedy trial tribunal. After hearing the rule, the HCD bench declared it absolute.
Some Chhatra League men forcibly took a young woman who came to visit the MC College campus on 25 September in 2020 to the college dormitory and gang-raped her keeping her husband locked in a room. Her husband filed a case with Shahporan police station against nine persons, including BCL activist Saifur Rahman. On 3 December 2020, Inspector Indranil Bhattacharya of Shah Poran Police Station in Sylhet submitted a charge sheet against eight accused in the case. Six people were charged with the rape of the woman, while two others were accused of assisting them.
The case shall come under the operation of the Law and Order Disruptive Crimes (Speedy Trial) Act 2002. Speedy trial of certain offences such as murder, rape, fire arms, explosives and narcotics Speedy Trial Tribunals (STT) have been conferred upon the officers of the rank of District Judges by the Government under Section 4 of the Speedy Trial Tribunal Act, 2002. The purpose behind transferring the case is to facilitate expeditious disposal and to put an end to the sufferings of the victims by curtailing the width of the procedural delay.