Constitution of Bangladesh, 1972
Articles 117(2), 102(1), 44(1), 133, 136, 27, 28 & 31
Non-Cadre Class-I and II Gazetted Officer (Customs Excise and VAT) Appointment and Service terms and conditions Act of 2000 (XX of 2000)
Section 8
Administrative Tribunal Act, 1980
Section 4
A person in the service of the Republic who intends to invoke fundamental right for challenging the vires of a law will seek his remedy under article 102(1), but in all other cases he will be required to seek remedy under Article 117(2)— Appellate Division has already found that the said provision is not ultra vires of Articles 133 and 136 of the Constitution and this Division is also of the view that no fundamental right as guaranteed in Article 27, 28 and 31 of the Constitution have been infringed but the impugned order of transfer was lawfully and validly passed and in any view of the matter, the writ petition challenging taking away of certain seniority and the gradation list have been done designedly in order to obviate the bar of section 4 of the Administrative Tribunal Act, 1980 providing that the High Court Division had no jurisdiction to adjudicate the dispute regarding terms and condition of service which obviously include the instant transfer in view of the provision of Article 117(2) of the Constitution.
Appellate Division has no reason to differ with the views expressed therein, rather, in order to uphold the constitutional mandate high, this Division respectfully reiterate that no Court including High Court Division shall entertain any proceeding or make any order in respect of any matter falling within the jurisdiction of such tribunal as enshrined in Article 117(2) of the Constitution. The right to move the High Court Division in accordance with Article 102(1) of the Constitution for enforcement of the fundamental rights conferred by Part III thereof is itself a fundamental right guaranteed under Article 44(1) thereof and the High Court Division itself having been entrusted with the specified jurisdiction under Article 102(1) of the Constitution to exercise such powers thereunder should exercise such power on specified fields without offending other provisions of the Constitution, for the simple reason that a right to judicial review under Article 102(2) is neither a fundamental right nor a guaranteed right i.e., to be precise it is not an all weather remedy nor a remedy for all wrongs, which is available only when there is no other equally efficacious remedy provided by law. The impugned judgment and order dated 15th and 16th April, 2002 making the rule absolute in Writ Petition No.5891 of 2000 are hereby set aside and the rule nisi accordingly stands recalled. .....Government of Bangladesh =VS= Mohammad Salahuddin Talukder, (Civil), 2025(2) [19 LM (AD) 157] ....View Full Judgment