(Special Original Jurisdiction)
Tariq-ul Hakim J
Md Shohrowardi J
Kazi Md Nurul Arefin ……
…………………Petitioner
vs
Bangladesh, represented by the Secretary, Ministry of Law, Justice and
Parliamentary Affairs, Bangladesh Secretariat and others….Respondents
Judgment
August 5th, 2018
Muslim Marriage & Divorce (Registration) Rules, 2009
Rule 6(6Ka)
If licence of a Nikah Registrar of an area of City Corporation, Pourashava or Union Parishad is terminated due to death or retirement of a Nikah Registrar, the son of the Nikah and Divorce Registrar of the concerned area shall get preference to be included in the panel of candidates for appointment as Nikah and Divorce Registrar subject to having qualification as mentioned in Rule 8 of the Rules……………………….(10)
Muslim Marriage & Divorce (Registration) Rules, 2009
Rules 6, 6A and 12
A licence issued under Rule 6A shall terminate after the appointment of a Nikah Registrar under Rule 6; and licence issued under Rule 6 shall terminate as per Rule 12 of the Rules when the Nikah Registrar attains the age of 67 (sixty-seven) years. The words ” AemiRwbZ Kvi‡Y” as mentioned in Rule 6(6A) includes termination of licence by any means except misconduct. On a careful reading of the Muslim Marriage and Divorce (Registration) Rules, 2009 it further appears that there is no provision in the said Rules authorizing the Advisory Committee to call for viva voce examination and give any mark in favour of any candidate for the purpose of preparing a panel of candidates. On perusal of the Annexure 1-1 it appears that out of 7 (seven) candidates, 3 (three) of them including the petitioner appeared in the viva voce examination before the Advisory Committee in time on 8-8-2016 at 10-00 am and respondent No. 10 appeared before the Advisory Committee out of time at 12-00 am. But the Advisory Committee included the name of respondent No. 10 in the panel of candidates in serial No.2 excluding the petitioner although as a qualified candidate he appeared before the Advisory Committee in time at 10-00 am which appears to us absurd. There was no reason for the inclusion of the name of the respondent No. 10 in the panel of (three) candidates. Since out of 7 (seven) candidates, 3 (three) of them including the petitioner appeared before the Advisory Committee in time, the said committee mala fide included the name of the respondent No. 10 in the panel of candidates to exclude the name of the petitioner who is a qualified candidate under Rule 8 of the said Rules. Therefore we are of the view that the Advisory Committee failed to discharge its duty fairly and impartially and acted in bad faith in preparing the panel of 3 (three) candidates excluding the name of the petitioner. .. …. (10 & 13)
Muslim Marriage & Divorce (Registration) Rules, 2009
Rule 6 and 6A
There is no provision for retirement of a Nikah Registrar appointed under Rule 6 or 6A of the Rules. 2009.
Md Bakir Uddin Bhuiyan. Advocate-For the Petitioner.
Md Bashir Ullah, Advocate-For the Respondent No. 8.
Md Zakaria Sarker, Advocate-For the Respondent No. 9.
Amatul Karim, DAG with Saira Fairoz, AAG-with Zaidy Hasan Khan, AAG-For Respondents.
Judgment
Md Shohrowardi J : This Rule Nisi was issued calling upon the respondents to show cause as to why exclusion of the name of the petitioner from the panel of candidates selected for giving appointment as Nikah & Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria as contained in memo No.278 dated 10-8-2016 issued under the signature of the respondent No. 8 (Annexure-J) should not be declared to have been done without any lawful authority and is of no legal effect and as to why the respondent Nos. 1 to 8 should not be directed to prepare a panel of candidates afresh including the name of the petitioner for giving appointment as Nikah & Divorce Registrar of the said Union and to issue licence in favour of the petitioner as Nikah & Divorce Registrar in the vacant post of No.7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria and/or pass such other or further order or orders as to this Court may seem fit and proper.
2. Short facts relevant for the disposal of the Rule is that father of the petitioner namely Kazi Mohammad Abduz Zaher was appointed on 1-1-1998 as temporary Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria and on 23-2-2016 he voluntarily filed resignation letter praying for an appointment in favour of his son as Nikah and Divorce Registrar of the said union and the respondent No. 7 accepted his resignation letter by office order dated 23-2-2016. The respondent No.8 published a notice on 26-5-2016 under Rule 6(2) (3)(4)(5) of the Muslim Marriage and Divorce (Registration), Rules, 2009 inviting applications for appointment of Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria and the respondent No.8 also brought an amendment on 31-5-2016 in the said notice and accordingly on 12-6-2016 the petitioner filed an application to the respondent No. 8 for appointmnt as Nikah and Divorce Registrar of the said Union and his father also filed an application on 10-6-2016 to the Chairman of the Advisory Committee requesting him to give preference to the petitioner as per SRO No. 330 including his name in the panel of candidates: He also stated that the President and General Secretary of the Kazi Samity of Brahmmanbaria Zilla on 10-6-2016 made a request to the respondent No.8 to give preference to the petitioner including his name in the panel of candidates as the son of the Nikah and Divorce Registrar of the concerned union. The petitioner further stated that on 8-8-2016 he was present before the Advisory Committee in time with all the relevant original documents and the said Committee also examined those documents. Thereafter, the respondent No.8 prepared a panel of candidates excluding the name of the petitioner and by office memo dated 10-8-2016 sent the same to the respondent No.1 and thereafter the petitioner obtained the Rule Nisi on 8-9-2016.
3. The respondent No.8, Sub-registrar, Nabinagar, Brahmmanbaria and Member Secretary of the Advisory Committee contested the Rule by filing affidavit-in-opposition stating that the respondent No.1 sent a letter on 9-5-2016 directing the respondent No. 8 to press the DO Letter of the local Member of Parliament to the Advisory Committee to prepare a panel of candidates and thereafter on 26-5-2016 the respondent No. 8 published a notice inviting application to prepare a panel of the candidates and pursuant to the said notice seven applicants (filed applications for getting appointment as the Nikah and Divorce Registrar of the said union and 4 (four) applicants including the petitioner appeared in the viva voce examination before the Advisory Committee, but he failed to show the original certificates of the required documents for which he obtained lowest mark and the Advisory Committee prepared a panel of three candidates excluding the name of the petitioner and sent the same to the respondent No. 1 by memo No. 278 dated 10-8-2016.
4. The respondent No. 9 also contested the Rule by filing affidavit- in-opposition stating that pursuant to notice dated 26-5-2016 he filed an application to include his name in the panel of candidates for appointment of Nikah and Divorce Registrar of the concerned union and he also appeared before the Advisory Committee and got the highest mark in the viva voce examination and the said Committee prepared a panel of candidates including his name in serial No.1.
5. Learned Advocate Mr. Mohammad Bakir Uddin Bhuiyan appearing on behalf of the petitioner submits that his father was the Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria and under Rule 6(6Ka) of the Muslim Marriage and Divorce (Registration) Rules, 2009 as son of the Nikah and Divorce Registrar of the concerned Union he will get preference at the time of selection of the candidates and also appointment in the said post. Since he is a qualified candidate under Rule 8 of the said Rules, there is no scope to send the panel of candidates excluding his name. He further submits that his father filed resignation letter for getting an appointment as Nikah and Divorce Registrar of the said Union in favour of the petitioner.
6. Learned Advocate Mr Md Bashir Ullah appearing on behalf of the respondent No. 8 submits that the father of the petitioner was a temporary Nikah and Divorce Registrar for which he will not get preference to be included in the panel of candidates. He further submits that the petitioner failed to show original certificates regarding his qualification for which he obtained the lowest mark amongst the candidates who appeared before the Advisory Committee for which his name was not included in the panel of the candidates.
7. Learned Advocate Mr Md Zakaria Sarker appearing on behalf of the respondent No. 9 adopted the submissions made on behalf of the respondent No.8.
8. The issue involves in the Rule as to whether the petitioner as the son of a temporary Nikah and Divorce Registrar of the concerned Union is entitled to get preference to be included in the panel of candidates and further question involves as to whether the Advisory Committee fairly and impartially prepared the panel of candidates.
9. To answer the questions raised in the Rule the relevant provision of Rule 6 (6Ka) of the Muslim Marriage and Divorce (Registration) Rules. 2009 is quoted below; “? (??) ??? ??? ???? ??????????, ?????? ?? ?????? ????? ?????? ??? ????? ????????????? ?”???? ?? ???????? ????? ?????????? ?????????? ????? ??? ???? ???? ??-???? (?) ?? ???? ????? ????????????? ???????? ???????? ????????? ???????? ????? ??? ??-???? (?) ?? ????? ???????? ???????? ???????? ????????? ????? ???????????? ????? ????????, ???? ? ?? ???? ??????? ???? ????????, ?????????? ?????? ????? ?????”
10. On a careful reading of Rule 6(6Ka) of the Muslim Marriage and Divorce (Registration) Rules. 2009 it appears that if licence of a Nikah Registrar of an area of City Corporation, Pourashava or Union Parishad is terminated due to death or retirement of a Nikah Registrar, the son of the Nikah and Divorce Registrar of the concerned area shall get preference to be included in the panel of candidates for appointment as Nikah and Divorce Registrar, subject to having qualification as mentioned in Rule 8 of the said Rules. It further appears that there is no provision retirement of a Nikah Registrar appointed under Rule 6 or 6A of the Muslim Marriage and Divorce (Registration) Rules. 2009. A licence issued under Rule 6A shall terminate after the appointment of a Nikah Registrar under Rule 6, and licence issued under Rule 6 shall terminate as per Rule 12 of the said Rules when the Nikah Registrar attains the age of 67 (sixty-seven) years. Therefore the words “???????? ?????” as mentioned in Rule 6(6A) includes termination of licence by any means except misconduct and the case of the petitioner attracts the Rule 6 (6A) of the said Rules.
11. On perusal of the records, it appears that the petitioner is the resident of the concerned union and he passed Alim Examination in 2014 from Madrasha Education Board. Dhaka (Annexure B-1) and aged about 23 (twenty-three) years. Therefore, we are of the view that as per Rule 8 of the aforesaid Rules he is a qualified candidate for appointment as Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria and as per Rule 6(6A) of the said Rule he will get preference to be included in the panel of candidates for appointment of Nikah and Divorce Registrar of the said Union.
12. As regards the submission made on behalf of the respondent No. 8 regarding the entitlement of the petitioner as the son of a temporary Nikah and Divorce Registrar. We hold that as per provision provided in Section 4 of the Musiim Marriage and Divorce (Registration) Act, 1974 a temporary Nikah Registrar is also a Nikah Registrar. Therefore the petitioner as the son of a temporary Nikah and Divorce Registrar of the concerned Union is entitled to get preference to be included in the panel of candidates.
13. On a careful reading of the Muslim Marriage and Divorce (Registration) Rules, 2009 it further appears that there is no provision in the said Rules authorizing the Advisory Committee to call for viva voce examination and give any mark in favour of any candidate for the purpose of preparing a panel of candidates. On perusal of the Annexure 1-1 it appears that out of 7 (seven) candidates, 3 (three) of them including the petitioner appeared in the viva voce examination before the Advisory Committee in time on 8-8-2016 at 10-00 am and respondent No. 10 appeared before the Advisory Committee out of time at 12-00 am. But the Advisory Committee included the name of respondent No. 10 in the panel of candidates in serial No.2 excluding the petitioner although as a qualified candidate he appeared before the Advisory Committee in time at 10-00 am which appears to us absurd. There was no reason for the inclusion of the name of the respondent No. 10 in the panel of 3 (three) candidates. Since out of 7 (seven) candidates, 3 (three) of them including the petitioner appeared before the Advisory Committee in time, the said committee mala fide included the name of the respondent No. 10 in the panel of candidates to exclude the name of the petitioner who is a qualified candidate under Rule 8 of the said Rules. Therefore, we are of the view that the Advisory Committee failed to discharge its duty fairly and impartially and acted in bad faith in preparing the panel of 3 (three) candidates excluding the name of the petitioner.
14. As regards the direction upon the respondent Nos. 1 to 8 to issue licence in favour of the petitioner as Nikah and Divorce Registrar of the concerned union we hold that appointment of the Nikah Registrar is the discretion of the respondent No. 1 subject to the provisions provided in the Muslim Marriage and Divorce (Registration) Rules, 2009. Therefore, we are not inclined to pass any direction as regards the appointment of Nikah Registrar of the said Union at this stage.
15. In view of the above facts and circumstances of the case and the proposition of law, we are inclined to make the Rule absolute-in- part.
16. In the result the impugned panel prepared by the Advisory Committee excluding the name of the Petitioner for appointment of Nikah and Divorce Registrar of No. 7 Nabinagar Poshchim Uuion, Nabinagar, Brahmmanbaria as contained in memo No. 278 dated 10-8-2016 issued under the signature of the respondent No. 8 (Annexure-J) is hereby declared to have been done without any lawful authority and is of no legal effect. The respondent No. 8 is directed to Prepare Panel of candidates afresh for the appointment of Nikah and Divorce Registrar of No.7 Nabinagar Poshchim Union, Nabinagar, Brahmmanbaria including the name of the petitioner in serial No. 1
However, there will be no order as to costs.
