"The President's order removing Syed Shahidur Rahman from his office is beyond the mandate of Article 96 of the Constitution and he (President) has failed to apply his mind to it in passing the order," observed the court.

Division bench comprising Justice Shah Abu Nayem Mominur Rahman and Justice Mainul Islam Chowdhury delivered the verdict after hearing the writ filed by the removed additional judge challenging the president's order.

Attorney General A F Hassan Ariff conceded that the order of Shahidur Rahman's removal "has not been done in accordance with the constitutional provision."

The allegations of bail fixing against Shahidur were not proved beyond doubt, he added.

He referred to the report of the Supreme Judicial Council (SJC) headed by the chief justice that said, "There is total absence of material in support of the allegations nor can it be said that the allegations are without any basis."

The council had however recommended that "Shahidur Rahman should not continue as an additional judge."

The court in its verdict observed, "It appears that the Supreme Judicial Council has gone beyond the authority given by Article 96 (6) of the Constitution."

Article 96(6) says, "If, after making the inquiry, the Council reports to the President that in its opinion the judge has ceased to be capable of properly performing the functions of his office or has been guilty of gross misconduct, the President shall, by order, remove the judge from the office."

The SJC has not said that the additional judge committed 'gross misconduct' and the allegations brought against the sitting additional judge were proved 'beyond any doubt', the court observed.

Allegations of bail fixing against Shahidur Rahman were raised by Supreme Court Bar Association President Barrister Rokanuddin Mahmud at a lawyers' meeting in October 2003, six months within Rahman's appointment as an additional judge of the HC.

Mahmud alleged that the appointment was made on political considerations, ignoring the question of efficiency and integrity of the person.

As the allegations against a sitting judge of the HC were serious in nature and stirred political upheaval, the SJC took up the matter for investigation and submitted its report to the president.

The president, acting upon SJC's recommendations, removed the judge.

Writ petitioner Syed Shahidur Rahman himself pleaded his case while Attorney General Hassan Ariff stood for the government.