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Gradation of panel candidates of Marriage Register not supported by the law

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High Court Division :
(Special Original Jurisdiction)
Md Imman Ali J
Sheikh Hasan Arif J
Judgment
January 20th, 2011
Murseduzzaman (Md)…….Petitioner
vs
Senior Assistant Secretary (Additional Charge), Ministry of Law, Justice and Parliamentary Affairs Dhaka and others……Respondents
Muslim Marriage & Divorce (Registration) Rules, 1975
Rules 5(3A) and 41(2)
Saving clause does not protect the interest of the petitioner, inasmuch as his application, although it was prior to the coming into force of the present Rules, will be treated as if it was made within the present Rules, and the present Rules do not give him the benefit of the previous Rule 5(3A). Moreover, until and unless the present Rules are set aside and the previous Rule 5(3A) is reinstated, the petitioner cannot claim to get benefit from the provisions of the earlier Rules…….. (11)
ZH Bhuiyan, Advocate -For the Petitioner.
Md Nuruzzaman Khan, Advocate -For the Respondent No. 9
Judgment
Md Imman Ali J : The petitioner Md. Murseduzzaman applied for the post of Nikah Registar for No. 2, Pattashi Union Parishad under Police Station-Zianagar, District-Pirojpur by an application dated 1-5-2009,  which, was recommended by the local Member of Parliament (MP) on 3-5-2009. The post become vacant upon the death of the petitioner's father Md Abdul Kader. His application  having been unsuccessful, the petitioner filed the instant writ petition whereupon Rule was issued calling upon the respondents to show cause as to why the letter dated 18-2-2010 issued by the respondent No. 1 under memo No. Bichar-7/2N.7/99-103 (Annexure-A) appointing the respondent No. 9 by-passing the petitioner as the Nikah Registrar for No. 2 Pattashi Union Parishad under Police Station Zianagar, District-Pirojpur shall not be declared to have been done without lawful authority and is of no legal effect and as to why respondent shall not be directed to appoint the petitioner as the Nikah Registrar for the said Union Parishad.
2. Pending hearing of the Rule, the operation of the impugned letter dated 18-2-2010, by which :another candidate namely, Md Moniruz-Zamanr respondent No.9 was appointed, was stayed for a period of six months, which was subsequently extended till disposal of Rule.
3. The claim of the petitioner is that as his father was as the incumbent Nikah Registrar up to the time of his death on 12-4-2009, he himself assisted his father as apprentice and gained experience in  the functioning of a Nikah Registrar. He further states that when the office of the Nikah Registar fell vacant upon the death of his father, the neighbouring Nikah Registrar was given the current· charge to work as the Nikah Registrar of No. 2 Pattashi Union Parishad under Police Station Zianagar, District-Pirojpur, who engaged the petitioner to work as his assistant for carrying out the work of the Nikah Registrar for the said union. In addition he has all the requisite academic qualification to be appointed as a Nikilh Registrar.
4. Mr ZH  Bhuiyan, the learned advocate appearing on behalf of the petitioner submits that the petitioner has all the requisite qualifications and is in fact more qualified than respondent No. 9 who has been appointed in the vacant post. The learned advocate submits that he has more than the requisite academic qualification and in addition has practical experience, having worked as an apprentice when his father was holding the office and as the assistant of the Nikah Registrar-in-Charge when the office became vacant.  The learned advocate further submits that the requirement of the gymwjg weevn I ZvjvK (wbeÜb) wewagvjv, 2009  requires that the local MP is by law required to be an Advisor to the Advisory Committee, whereas the record will show that in the instant case the local MP acted as the Chairman of the Advisory, which is not within the purview of the law. He further submits that there is no requirement in the Rules that the Advisory Committee, who are bound to put forward a panel of candidates should mention the grade of the candidates as they have done in the instant case. He submits that by mentioning in the remake column that the respondent No.9 was first in the merit list and the petitioner was second in the merit list, the Advisory Committee has acted in violation of the Rules and also prejudiced me petitioner's application. He submits that there is no provision for grading any of the candidates before a panel is put forward to the Government for selection. The learned advocate submits that panel having been,' prepared illegally giving undue advantage to respondent No, 9, the appointment of respondent No.9 is illegal and void abinitio and liable to be set aside.
5. Mr Md Nuruzzaman Khan, the learned advocate appearing on behalf of the respondent No. 9 submits that the petitioner and the respondent No.9 as well as another were select~ ed by the Advisory Committee out of six candidates after holding viva voce examination. He submits that it is necessary to hold the examination in order to scrutinise the abilities of all the candidates in order to form a panel of three which would then be put forward to the Government, from whom one would be selected for the post. The learned advocate submits that the petitioner has no added qualification  inasmuch as he could never have acted as the  Nikah Registrar since his father was holding the post and subsequently, when the post became vacant the neighbouring Nikah Registrar held the post as Nikah Registrar in charge as additional duty and, thereof, it cannot be said that the petitioner has any added m qualification.
6. We have considered the submissions of  the learned advocates, perused the petition and the annexures thereto as well as the affidavit in opposition filed by the respondent No.9 and the affidavit in reply filed by the petitioner. We have also perused the relevant laws.
7. The requirement of the Rules namely, gymwjg weevn I ZvjvK (wbeÜb) wewagvjv, 2009 is that when any post of Nikah Registrar becomes vacant the Advisory Committee will select a panel of three persons and forward the same to the Government of whom one will be appointed for the post of Nikah Registrar. The Government is then empowered under Rule 6(6) to appoint anyone of the three candidates named in  the panel forwarded by the Advisory Committee. We do not find any real substance in the submissions of the learned advocate for the petitioner that the sitting MP was the Advisor to the Committee, but acted as the Chairman of the Advisory Committee. As Advisor of the Committee the MP is liable to be a member of the Committee. Whether he is a  Chairman or not makes little difference. There  does not appear to be any difference in the views of the other members of the Advisory  Committee in choosing the panel of candidates.
8. With regard to the holding of examination for the purpose of selecting the panel of candidates, we also do no find any illegality, inasmuch as it is always necessary, when there are more than the requisite numbers of candidates applying for a post, to ascertain which of the numbers of applicants are qualified to be put forward in the panel.  To that extent holding the viva-voce examination in order to select the panel cannot be said to be illegal. However, the requirement of law is that the Advisory Committee shall select a panel of three candidates of whom any one could be appointed by the Government. In the instant case, we find that the Advisory Committee has prepared a list of candidates in a panel of three giving their grades by merit, signifying that the respondent No.9 came first in the merit list and that the petitioner became second and there was a third member in the panel. It is our view that this gradation of the panel of candidates is not in accordance with the law. There is no such requirement in the Rules that the members of the panel must be given a grade. On the contrary,  it is our view that grading the members of the panel prejudices the Government's ability to decide independently as to which of the panel members they would appoint as the Nikah Registrar.
9. The learned advocate for the petitioner further submits that there was previously Rule 5(3A) of the Muslim Marriages and Divorces (Registration) Rules, 1975 which provided that the son of a sitting Nikah Registrar would get preference in appointment upon the post becoming vacant on the death or retirement of the Nikah Registrar. He submits that although those Rules have been amended by the present Rules of 2009, the new Rules are under challenge in Writ Petition No, 7161 of 2009. He submits that, therefore, the petitioner should get the benefit of the previous Rules, since he is the son of the previous Nikah Registrar, who died and the present Rules are under challenge in that Writ petition.
10. On the other hand, we note that the saving clause in the present Rules namely Rule 41(2) states as follows :
“উক্তরূপ রহিতকরণ সত্ত্বেও, উক্ত জঁষবং এর অধীন গ"হীত যে কোন কার্যক্রম এমনভাবে অব্যাহত থাকিবে যেন উক্ত কার্যক্রম এই বিধিমালার অধীন সুচিত হইয়াছে।”
11. Therefore, it is clear that even the saving clause does not protect the interest of the petitioner, inasmuch as his application, although it was prior to the coming into force of the present Rules, will be treated as if it was made within the present Rules, and the present Rules do not give him the benefit of the previous Rule 5(3A). Moreover, until and unless the present Rules are set aside and the previous Rule 5(3A) is reinstated, the petitioner cannot claim to get benefit from the provisions of the earlier Rules.
12. It goes without saying that the Government is to choose one candidate out of a panel of three forwarded to it by the Advisory Committee. There is no question of any gradation within those three panel members and the Government should keep its mind open to decide which of the three has the requisite qualifications and which of the three is most suitable.
13. In view of the fact that we have found the panel to have been illegally made giving grade of the three candidates; we hereby hold that the appointment of respondent No. 9 was also not in accordance with law and accordingly, the impugned memo (Annexure-A) dated 18-2-2010 is hereby set aside. The respondents are hereby directed to reconsider the applications and put forward a fresh panel of candidates without any gradation, from which the government, upon exercising its independent mind, will choose one for the post of Nikah Registrar.
14. In the result, the Rule is made absolute without any order as to costs.
Let a copy of this judgment be communicated at once.

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