The recent trend to exclude a group of qualified applicants (National, Private and Foreign Universities approved by Government and UGC) from taking part in the appointment process of public services (post or office, whether in a civil or military capacity or any other service declared by law to be a service of the Republic) is clear violation of Articles 29, 19, 40, 27, 7, and 26 of the Bangladesh Constitution, International Conventions and well established judicial decisions of Higher Court. While such qualified applicants secures first position in the Bangladesh Civil Service (BCS) or Bangladesh Judicial Service (BJCS) examination and serving the nations by giving their full endeavors.
Bangladesh Army, Autonomous Government Institution and few of the Public University are making appointment circular, excluding all qualified applicants of National, Private and Foreign Universities (approved by the Government and UGC) from attending their appointment process is obvious violation of the fundamental rights, that has acknowledged in the Constitution. A number of intentional violations has been seen in many appointment circulars of public sectors, such as… 31 direct short term commission- Army education core (Judge Advocate General), 41 direct short term commission- remount veterinary and farm core (RVFC), 44 BMA special courses- Engineers/ Signals/EME, 2nd SSC Special Course, 45 BMA special course- Engineers/ Signals/EME, 42 direct short term commission- remount veterinary and farm core (RVFC), 42 BMA special courses- Engineers/ Signals/EME.
As article 27 declares, all citizens are equal before the law and are entitled to equal protection of law. In interpreting very article the Supreme Court held that “The opportunity offered to the citizen must be subject to the qualifications of the citizen. We have to consider whether there was discrimination among the citizens with equal qualification and equal claim”. Nazrul Islam v. Bangladesh 46 DLR and other instances they refer “The appointment in a teaching posts of the University although can only be made by the authority being a creation of the Ordinance, cannot act arbitrarily or capriciously but must act judicially and fairly” Dr Md Alamgir v. Vice chancellor, BUET and Others 53 DLR. Hence, the framers of the constitution inserted the Article 19 Equality of opportunity, Article 40 Freedom of profession or occupation and Article 29 (1) Equality of opportunity for all citizens in respect of employment or office in the service of the Republic. “The framers attached immense importance to the service of the Republic and guaranteed equal opportunity under Article 29. The word ‘in respect of employment’ is so wide, that it includes all matters in relation to employment, both prior and subsequent to initial appointment” Gazi Jashimuddin v. Bangladesh, represented by the secretary, Ministry of Home Affairs, government of Bangladesh 50 DLR. Thus, one can bring up an issue on the legality of so called appointment circular by questioning… On what basis the state authority has taken such decision? Can they take any decision as their wish and whim?
Furthermore, Article 29 Equality of opportunity in public employment falls under the purview of the fundamental rights of the constitution. “The very conception of fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law” Jibendra Kishore v. Province of East Pakistan, PLD 1957 SC. “Violation of all kinds of law is not a violation of fundamental rights. Violation of terms and conditions of service may indeed be a violation of law, but if a specific remedy provided in the constitution for remedy then that specific remedy shall be avail of by the aggrieved person” Government of Bangladesh and Others v. Mohammad Faraque 51 DLR (AD). Therefore, no public authorities have any right to discriminate qualified applicants from taking part the process of examinations of any service of the republic.
According to Article 21(2) of (UDHR) Everyone has the right of equal access to public service in his country and Article 25 (c) of the (ICCPR) reinforces that Every citizen shall have the right and the opportunity, without any distinctions to have access to public service in his country. Thus, we can recourse the help of Article 26 of ICCPR as it is rightly referred all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination. These arguments are strongly supported by the judiciary in several instances…“No person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or the class of persons in like circumstances in their lives” Jibendra Kishore v. East Pakistan 1957, 9 DLR (SC). Thus, “when a group of persons along with others has the similar qualification excluding them from the process of examination without assessing any reason and without giving them any opportunity of being heard the group of persons were held to have been discriminated” Dr. Abeda Begum and others v. Public Service Commission 2007, 12 BLC (AD).
As Article 7(2) articulates the Constitution is, as the solemn expression of the will of the people, the supreme law of the Republic, and if any other law is inconsistent with this Constitution and other law shall, to the extent of the inconsistency, be void. By interpreting the mentioned article court opined that “the Constitution is solemn expression of the will of the people, the supreme law of the republic, any of its violations by anybody, including the members of the parliament can be called be in question by each and every citizen of Bangladesh” Anwar Hossain Khan v. Speaker of Bangladesh Sangsad Bhavan and Others 47 DLR. According to Article 26 (1) all existing law inconsistent with the provisions of this Part III shall, to the extent of such inconsistency, become void on the commencement of this Constitution. The State shall not make any law inconsistent with any provisions of this Part, and any law so made shall, to the extent of such inconsistency, be void. Therefore, any sector of the republic cannot make an appointment circular that deprives any eligible candidate to attend in the process of examination, the mere basis of so called/useless distinction as their wish and whim in violating the basic provisions of the constitution and judicial decisions.
The process to establish equal opportunity for qualified persons in public service is legally easy. The door is open to stop such illegal work of public establishment by making a petition. Therefore, an individual will have to put forward a writ petition on the grounds of violation of the fundamental rights along with the provisions of the supremacy of the constitution to the High Court division. “A person not personally aggrieved may also come if his heart bleeds for this less fortunate fellow for any wrong done by the Government. When an action concerns public wrong or invasion on the fundamental rights of an indeterminate number of people, any member of the public suffering the common injury has the right to invoke to the High Court Division” Chowdhury Mahmood Hasan and Others v. Bangladesh and Others 54 DLR. Then, it will be a clear signal for the state machinery to act upon the very provisions of the Constitution, International Conventions and established Judicial Decisions to ensure the equal opportunity for those qualified persons in public service as well as ensure their vigorous desire to serve the nations.
Writer: *Ph. D Research Scholar in Law at South Asian University, New Delhi, India.