if he is —
.. ….

a public officer holding any office the initial of the salaryscale of which is not less than Rs. 6,720 per annum."
SC.Abeywickrema v. Pathirana (Sharvananda, C.J.I127
Ope decisive question arising 'for determination is whether bytendering letter of resignation (P32) to the Regional Director ofEducation, Galle and getting it accepted by him the 1st respondenthad effectively terminated his contract of service and ceased to be apublic officer with effect from- 21.04.1983*.
Counsel for the appellant contended that letter of resignation (P32)is not valid in terms of the relevant provisions of the EstablishmentCode which regulate a public officer's contract of service. P32 notbeing a valid resignation in law the contractual bond "vinculum juris"between 1st respondent and the State has not been severed.According to the Deputy Solicitor General who appeared as amicuscuriae, the letter of- resignation does not comply with the saidprovisions and is a nullity.^
The burden of counsel's submissions was that the 1st respondentremained a public officer on the material dates, i.e. both on the date ofnomination and on the date of election.
Section 4 of Chap. V of the Establishment Code deals with thesubject of resignation. It reads thus-
4:1 An officer may resign his appointment with one month's _notice to the appointing authority through the Head of hisDepartment or on payment- of one month's salary in lieuthereof.
4:2 If the appointing authority refuses to accept hisresignation, and the officer ceases to report for duty, heshall, be deemed to have vacated his post as from,thedate of such cessation (vide section 7).
4:3 On receipt of the resignation of a pensionable officer, theHead of his Department should inform the officer inwriting that if he resigns his appointment, he will forfeit allclaims to pension or gratuity and all other benefits of hisservice priorto resignation should he afterwards succeedin obtaining employment under Government.
4:3:1 He should also be informed that if his resignation isaccepted any application to withdraw it later, will not beconsidered.
Sri Lanka Law Reports
11986) 1 SriL Ft.
4:3:2 An acknowledgment to the effect that he has beeninformed in these terms should be obtained from him inwriting.
4:4 :When forwarding a resignation for acceptance by theAppointing Authority, the Head of Department shouldstate that he has complied with the requirements ofsub-section 4:3:
4:5 Acceptance of resignation should be notified in writing tothe officer concerned.
4:6 An officer who resigns forfeits-all claims to any benefitsarising from his services prior to resignation, and he willnot be entitled to any such benefits if he is subsequentlyre-employed."
The 1 st respondent's letter of appointment dated 31 st July, 1974(P19) specifically provided that —
"you are subject to regulations of the Public Service Commissionand Financial Regulations,. Rules of the Establishment Code,Department Regulations and other Regulations issued by theGovernment from time to time."
It is not disputed that the letter of resignation has not been acceptedby the "Appointing Authority" as required by lire aforesaid section 4(1)of the Establishment Code. P32 is addressed to the Director ofEducation and not to the Appointing Authority, which according to thedelegation of authority made by the Cabinet of Ministers and the PublicService Commission (P1 – Minutes of the Meeting of Cabinet held on10.10.1 979'and P2 dated 1 5.10.79 appointing a Committee underArticle 57(1) of the Constitution) is the Educational ServicesCommittee. By letter dated 26.10.79, marked P62. the RegionalDirectors were informed that all their subsisting powers ofappointment, transfers etc., were withdrawn and that according tothe decisions of the Cabinet, the Educational ServTces Committee wasvested with the powers of appointment, transfer etc.. Thus it is clearthat the Educational-Services Committee was the "AppointingAuthority" for the purposes of the aforesaid section 4 of theEstablishment Code. The letter of resignation (P32) is flawed by thefact that it was not addressed to the Committee nor was it acceptedby the said Committee. The evidence shows that it was neveiforwarded by the Head of Department to the Committee. It is to be
Abeywickrema v. Pathirana (Sharvananda. C.J.)
noted that by circular dated 24.12.81 (P45) Regional Directors ofEducation had been informed that the approval of the Committee.wasnecessary to complete the resignation of officers of the 1strespondent's category., But the necessary step of acceptance ofresignation by the authority competent to do so, in terms of theaforesaid section 4, had not been taken to give effect to 1strespondent's resignation. Thus, the purported resignation referable toP32, is not complete and effective.
In the preliminary objection of the 1st respondent filed on the 22ndAugust 1983, he has stated that his resignation has been submittedto and accepted by the Regional Director of Education, Galle "who isthe authority by whom all Grade III Principals of Government schoolsare appointed, transferred and dismissed". In view of the Cabinetdecision set out in P2 of 15.10.79 and letter P62 of 26,. 10.79 thestance that the Regional Director of Education is the proper authorityto accept the resignation is untenable. There has been no expressdelegation of the power of appointment, transfer etc., in terms ofArticle 58(1) of the Constitution, to the Regional Director,- Galle.Though at one stage of the election petition proceedings (seeAbeywickrema v. Pathirana (1)). Counsel for the 1st respondentsuggested that there was implied delegation of such power to theDirector, he categorically declared before us that he was not relying onany implied delegation.
Thus the 1 st respondent's letter of resignation P32 is vitiated by thefact that it has not been duly accepted by the proper authority. Had itbeen accepted, Jay the Educational Services CoThmittee, the otherflaws, namely one month's notice not being given, nor one month'ssalary in lieu thereof paid nor it being addressed to the proper authoritymight be overlooked as not being fundamental defects, curable- byproper acceptance, Thus counsel's contention that there had been noresignation, in terms of the provisions of the Establishment Code, onthe part of the 1st respondent, has to be upheld. The appeal thenturns on the question of the impact of this conclusion on the issuewhether the 1 st respondent had ceased to be a public officer to qualify■ himself for the election in question?
A resignation to become effective does not need acceptance by theemployer at all in the absence of any stipulations to that effect,reserved in the contract of employment or service rules. The giving ofa notice terminating a contractual employment is the exercise of aright in the field of employment. The law does recognise the concept
Sri Lanka Law Reports
[19861 } SnL.R.
of a unilateral resignation from office which takes effect propno vigoreirrespective'of its acceptance by tbs other contracting party. Butemployment is generally a contract between parties and the generalprinciples of contract law apply to the contract of service and it is opento an employee to agree to the fettering or regulating of his right ofunilateral resignation. Hence any question as to the duration of theemployment, its terminability by notice, the length of the noticerequired to determine it. whether the notice should be accepted ornot. are all matters the subject of the express or implied terms of thecontract of employment. In the case of a government servant, inlegard to the terms relevant to these issues one has to Iock to hisser.vice Rules: The termination ofservices of a Public Officer can bebrought about in accordance with the rules governing the conditionsof service or by the terms Of his employment or by acceptance of hisresignation. The Establishment Code which governs the conditions ofservice of a Public Officer provides for the termination of service ofsuch an officer by the resignation of the officer. Section 4 spells outthe mode of such termination. In terms of section 4 of the Code theservices of a public officer do not stand terminated merely by histendering of resignation, to a superior officer. The rule in respect of apublic officer's resignation is that it can take effect only when it isaccepted by his appointing authority. Tender of resignation by tireofficer merely amounts to an offer to quit the set vices and unless theoffer ;is accepted by the proper authority it cannot bring about thetermination of services of the resigning employee.
"A contract of service is continuing in its nature and itscontinuance and the obligations under it can be terminable in certaindefined modes. Mere resignation obviously is not enough unless itbe assented to or unless it complies with.those terms which the lawimplies or prior agreement of the parties may permit.” – PerJenkins, C.J., in Ganesh Ramchandra v. G. I. P. Railway Co. (2).
If an authority is not competent to pass an order which can be onlypassed by a superior authority, then the order passed by him willamount to a nullity and is void. The resigner has a right to resign butthe resignation can be effective only after it is accepted by the"Appointing Authority." Unless the two acis are completed, thetransaction remains in inchoate form and termination of service is notbrought about. Hence the resignation 'sent by a public officer is noresignation in the eye of the Law untill its acceptance by the properauthority in terms of section 4 of the Code.
Abeywickrema v. Pathirana (Sharvananda. C.J.)
It was urged that in any event though the letter of resignation wasnot properly accepted by the State, the 1st respondent's conduct atthe relevant time manifested a unilateral repudiation of his contract olservice and that such a repudiation, whether accepted or not. wassufficient to bring to an end the relationship of employer andemployee; thus the 1st respondent has ceased to be a public officer.Repudiation occurs where a party intimates to the other by words orconduct that he does not intend to perform the contract. As a matterof general contract principle, the wrongful repudiation or wrongfulpurported termination of a contract cannot in itself terminate thecontract.'If one of the parties wrongfully repudiates all further liabilitythe contract will not automatically come to an end. The innocent partymay either affirm the contract by treating it as still in force or on theother hand he may treat it as finally and conclusively discharged.Where the. innocent party wishes to treat himself as discharged hemust accept the repudiation. Unless and -until this is done the contractcontinues in existence, for an unaccepted repudiation is a thing writ in't-vciter. Howard v. Pickford Tool Co. (3).
Mr. H. L de Silva; submitted that there is however a body ofauthority which treats wrongful dismissal as an exception to thegeneral principle, so that the contract of employment is said to beterminated by wrongful dismissal even where the employee refuses to.accept the dismissal as a termination of the contract. This conclusionis based on the fact that common law and equitable remedy will.gotnormally be so applied as to keep a contract of employment in beingfollowing a wrongful dismissal. If a contract of employment iswrongfully terminated the remedy of the aggrieved pai ty lies in anaction for damages, and the court will not grant a declaration that thecontract of service still subsists. That declaration will amount to anorder tor specific performance of personal service, which the court willnot decree.
In the case of Vine v. National Dock Labour Board (4) ViscountKilmuir, L.C.. observed a; page 944 as follows:
"This is an entirely different situation from the ordinary master andservant case. There, if the master wrongfully dismisses the seivant,either summarily or by giving insufficient notice, the employment iseffectively terminated, albeit in breach of contract. Here the removalof'the plaintiff's name from the register being, in law. a nullity, he
Sri Lanka Law Reports
[1986] 1 SriL.R.
continued to have the right to be treated as a registered dockworker with all benefits which, by statute the status has conferredon him. It is therefore, right that, with the background of thisscheme, the court should declare his rights."
It was also observed by Lord Keith at page 948 that –
''Normally, and apart from the intervention of statute there wouldnever be a nullity in terminating an ordinary contract of master andservant. Dismissal might be in breach of contract and so unlawful,but it could only sound in damages."
The above was a case where the plaintiff's employment as aregistered dock worker, employed in the Reserve Pool under a stautoryscheme by the National Dock Labour Board, was terminated.by a
disciplinary committee of a local board. It was held that the localboard, under the statutory scheme set up under the Dock Workers.Regulation of Employment Order 1947, had no power to delegate usfunctions to a disciplinary committee and that the order of dismissalaccordingly was a nullity, and that in such a case the plaintiff wasentitled to a declaration that his name was never validly removed fromthe register as he would otherwise be disabled to work as adock-worker and he continued to be an employee of the NationalBoard.
As enunciated in the above case the position will however bedifferent when a statute intervenes in the relationship of master andservant and the employee is given a statutory status. If there is aviolation of the provisions of the statute m terminating the services ofsuch an employee, he will be eligible for a declaration that the orderterminating the services is a nullity and that he continues to be mservice
In Barbar v. Manchester Regional Hospital Board (5) the hospitalboard determined the employment of plaintiff who made an appealunder clause 16 of the terms and conditions of service of hospitalmedical staff which had a statutory force. The plaintiff claimed that hisservice was never validly determined. It was held that the plaintiff'scontract with the board was between master and servant, thetermination of which could not be a nullity and the plaintiff was nottherefore entitled to a declaration that his employment had never been
Abeywickrema v. Pathirana (Sharvananda. C.JJ
validly determined but he was entitled to recover damages for breachof the contract. This case was not equated to Vine s case (supra).Here, the court was of the opinion that despite the strong statutoryflavour attaching to plaintiff's contract, it was in essence an ordinarycontract between master and servant and nothing more.
In Francis v. Municipal Council of Kuala Lumpur (6) the plaintiff wasemployed by the Defendant Municipal Council as a clerk. The councilpurported to dismiss him. This dismissal was held to be ultra vires,because by the terms of the Ordinance establishing the council theonly power to dismiss the plaintiff was vested, not in the council, but inns President. The plaintiff asked for a declaration that he was stillemployed by the Municipality, his dismissal having been a nullity. ThePrivy Council said_.at p. 637 ^
"Their Lordships consider that it is beyond doubt that on October1, 1957, there was a de facto dismissal o.f the appellant by hisemployer the respondent. On that date he was excluded from thecouncils premises. Since then he has not done any work for thecouncil. In these circumstances it seems to Your Lordships that theappellant must be treated as having been wrongfully dismissed onOctober 1, 1 957, and that his remedy lies in aclaim for damages. Itwould be wholly unreal to accede to the contention that sinceOctober 1, 1957, he had continued and that he still continues to bein the employment of the respondents"
it went on to say at page 637:
"In Their Lordships' view, when there has been a purportedtermination of a contract of service, a declaration to that effect thatthe contract of service still subsists will rarely be made. This is aconsequence of the general principle of law that the courts will notgrant specific performance of a contract of service. Specialcircumstances will be required before such a declaration is madeand its making will normally be in the discretion of the court. In theirLordships' view there are no. circumstances in the present casewhich would make T either just or-proper to make such adeclaration."
In Vidyodaya University v'. Linus Silva (7) it was held by the PrivyCouncil again that although the university was established andregulated by statute that did not involve that contracts of employmentmade vyith teachers and subject to section 18(e) of the University Act
Sri Lanka Law Reports
11986) i SnL.R.
No. 45 of 1958. were other than ordinary contracts between masterand servant. In this case the respondent was not-shown to have anyother status than that of a servant and proceedings by certiorari werenot available where a master summarily terminates a servant'semployment. It is to be noted that Lord Wilberforce doubted thecorrectness of this judgment in Mallock v. Abdeen Corporation (8)where he observed at page 1295:
"I must confess that I could not follow it in this country, insofar asit involves a denial of any remedy of administrative law to analogousemployments Statutory provisions similar to those on which theemployment rested would tend to show, to my mind in England andScotland that it was sufficiently one of a public character, or onepartaking sufficiently of. the nature of an office, to attract theappropriate remedy of administrative law."
A distinction is to be drawn between a pure master and servantcase in which there is no element of public employment or service, nosupport by statute, nothing in the nature of an office or a status whichis capable of protection and the tenure of a-public office.
A line has to be drawn between an office which gives its holder astatus which the law will protect specifically, on the one hand and. onthe other hand a mere employment under a contract of service.-Wade Administrative Law-5th Ed. at page 497.
In the case of the Executive Committee of U.P. State WarehousingCorporation v, Chandrakiran Tyagi (9). after review of the case on thesubject, the Supreme Court of India, observed:
From a review of. the English decisions the position emerges asfollows: The law relating to master and servant is clear. A contractfor personal services will not be enforced by an order for specificperformance nor will it be open for a servant to refuse to accept therepudiation of a contract of service by his master and say that thecontract has never been terminated. The remedy of the employee isa claim for damages for wrongful dismissal or for breach ofcontract. This is the normal rule and that was applied in Barbar'scase (supra) and Francis' case (supra) But when a,statutory statusis given to an employee, the latter will be eligible to get the relief of adeclaration that the order is a nullity and void and that he continuesto be in service, as it will not then be a mere case of a masterterminating the services of a servant. Tftis was the position m Vine'scase (supra)."
SCAbeywickrema v. Pathiraha (Sharvananda, C.J.)135
The above was a case of a wrongful dismissal of a corporationemployee by a corporation and it was held that the order of dismissalwas in breach of the regulations made u'n^der the powers reserved to' corporations under section 54 of the Agricultural Produce CorporationAct of 1-956. In deciding the issue the court observed at pages' 1 2541255:
"The regulations are made under the power reserved to thecorporation under section 54 of the ActmNo doubt they lay downthe terms and conditions of relationship between {he corporationand the employees. An .order made in breach of these regulationscould be contrary to such terms and conditions but would not be inbreach of any statutory obligation, as was the^position which thiscourt had to deal with in the Life Insurance Corporation case. A.I.R.1964 S.C. 847. In the instant case…,, the Act does not.guarantee any statutory status.to respondents (employees), nordoes it impose any obligation on the appellant in such matters.Under these circumstances a. violation of regulation 16 (3) asestablished in this case can only result in the order of dismissalbeing held to be wrongful and in consequencebnaking the appellantliable for damages. But the said order cannot be held to be onewhich has not terminated the service wrongfully or which entitledthe respondent to ignore, it and ask for being treated as still inservice."
The. contrary view is that' the contract of employment is notnecessarily in principle terminated by wrongful dismissal even thoughno remedy may lie to maintain the, contract in being (see Gunton v.Richmond LBC (10), Decro-Wall International v. Practitioners inMarketing Ltd. (11), Marshall (Thomas) (Exports) Ltd. v. Guinie (T2)and Hill v. Parsons & Co., Ltd:C3)).
In Chitty on Contract, Vol. II, paragraph 3515 at page 732 (T983)25th Ed., the position is summarised as follows:
"The ultimate answer is that the termination of the contract ofemployment is not really a concept with a single clear meaning; butwith that qualification the better view now seems to be in favour ofregarding wrongful dismissal as 'in principle terminatory of thecontract. On the other hand the elective view of termination ofcontract of employment has recently been followed in granting adeclaration that wrongful dismissal was ineffective to'determine the= contract. Gunton v. Richmond LBC {supra). (Shaw, L.J. dissentingon this point)."
Sri Lanka Law Reports
[1986) 1 SriL.R.
However, the rule that wrongful repudiation or wrongful purportedtermination of a contract, terminates the contract does not apply to anemployee whose employment is in some sense public employment orinvolves the tenure of an office, or whose employment takes placeunder the authority of a statute or regulation having statutory force orother constituent instrument giving it a public nature.
In Halsbury (4th Ed.) Vol. I; para 10. it is stated:
"It would appear that, in the absence of contrary intention,resignation from an office held under the Crown is ineffective tillaccepted."
Employment generally is a contract between parties and thereforethe general rule is that the contract cannot be unilaterally changed byany party to the contract. The. position is different in Governmentemployment in which Government derives its powers from theConstitution, to make rules laying down the conditions of service. Byvirtue of such power the government can prescribe the conditions ofservice without any reference to the other party and similarly suchrules can be changed unilaterally without reference to employees. It isonly the origin of the government service which is contractual. Onceappointed, the public officer acquires a status: thereafter his relationsare governed by status and not by contract. "The legal position of aGovernment Servant is more one of status than of contract and hisrights and obligations are no longer determined by consent of bothparties, but by rules which are framed and altered unilaterally by theState in terms of Article 55(4) of the Constitution. The hallmark of thestatus is the attachment to the legal relationship of rights and dutiesimposed by public law and not by agreement of the parties." Roshenlalv. Union of India (14), Dinesh Chandra v. Slate of Assam (15). Furtherthe emoluments of a government servant and his terms of office aregoverned by rules, whic(i may be unilaterally altered by thegovernment without the consent of the employee. The conditions inGovernment Service are governed by a complex code, consisting ofconstitutional provisions, rules framed under Article 55(4) of theConstitution and a large mass of other rules and circulars.
The duties of status are fixed by the law.. In the language ofjurisprudence, status is a condition of membership of a group whosepowers and duties are exclusively determined by law and not byagreement between the parties concerned.
SCAbeywickrema v, Pathirana (Sharvananda, C.J.)137
"Status signifies a man's personal condition, so far only as it isimposed upon him by the law without his own. consent, as opposedto the condition which he has acquired for himself by agreement.The position of a slave is a matter of status, the position of a freeservant is a matter of contract. Marriage creates a status in thissense, for although it is entered into by way of consent, it cannot bedissolved in that way and the legal .condition created by it isdetermined by the law and cannot be modified by the agreement ofthe parties. A business partnership on the other hand pertains to thelaw of contract and not to that of status~ – Salmond Jurisprudence(1 2th Ed.) pp. 240-241..
"A servant under a mere contract of service whatever hiscontractual rights be, can always be dismissed and remedy lies.indamages for breach of contract. In other words there is always apower to dismiss him even though under the contract there is noright to do so. The principle is that one man will not be compelled to .employ another against his will. By contrast, the law will givespecific protection to status, such as membership or office in atrade union, association or group even though it is merelycontractual; this is a less personal relationship and an injunction ordeclaration may be granted so as to preserve the status. A statutorystatus such as that of a registered Dock Worker, will be protectedsimilarly."- Wade Administrative Law, 5th Ed., p. 498.
Article 55(1) of the Constitution provides:
"Subject to the provisions of the Constitution, the appointment,transfer, dismissal and disciplinary control of public officers ishereby vested in the Cabinet of Ministers, and all public officers shallhold office at pleasure" and
Article 55(4) provides:
"Subject to the provisions of the Constitution, the Cabinet ofMinisters shall provide for and determine all matters relating topublic officers including the formulation of schemes of recruitmentand codes of conduct for public officers, the principles to befollowed in making promotions and transfers, and the procedure forthe exercise and the delegation of the powers of appointment,transfer, dismissal and disciplinary control of public officers."
Sri Lanka Law Repons
(I986J I SriL.R.
"Public Officer" is defined in Article 170 of the Constitution to meana person who holds any paid office under the Republic, other than ajudicial officer but does not include certain persons specified therein.
Article 55(4) empowers the Cabinet of Ministers to make rules forall matters relating to public officers, without impinging upon theoverriding powers of pleasure recognised under Article 55(1).Matters relating to "public officer" comprehends all matters relating toemployment, which are incidental to employment and form part of theterms and conditions of such employment, such as. provisions as tosalary, increments, leave, gratuity, pension, and of superannuity,promotion and every termination of employment and removal fromservice. The power conferred on the Cabinet of Ministers is a power tomake rules which are general in their operation, though they may beapplied to a particular class of public officers. This power is alegislative power and this rule making function is for the purposeidentified in Article 55(4) of the Constitution as legislative, notexecutive or judicial in character.
– A rule made in exercise of this power by the Cabinet has all thebinding force of a statute, or regulation. The relevant EstablishmentCode of the Democratic Socialist Republic of Sri Lanka (P6) has beenissued by the Secretary to the Ministry of Public Administration underthe authority and with the approval of the Cabinet of Ministers It is mthe exercise of the legislative power vested m the Cabinet of Ministersunder Article 55(4), that this -Code has been issued. Though theposition might have been otherwise prior to the Constitution, the coderelating to Public Officers acquires by virtue of its Constitutionalorigin, statutory force, provided of course it is not inconsistent withany provisions of the Constitution, including the articles relating tofundamental rights and Article 55(1). which enshrines the doctrine ofpleasure or the provision of any statute. In a case of breach of any ofthe -mandatory rules in the code, the aggrieved public officer has.subject to the provision of Article 55(5) of the Constitution, a remedyin a court of law. The enforceability of a service rule is a questiondifferent from that of its character as to whether it is statutory orotherwise. All statutory rules are not necessarily enforceable in a courtof law^ It-is only the breach of a mandatory rule which is tusticiableOnce a rule is held to be mandatory and not inconsistent with theConstitution, there is no reason why it should not be enforced, like anyother statutory rule but should be considered to be mereadministrative instructions, simply because it relates to matters
SCAbeywickrema v. Pathirana (Sharvananda. C. J.)139
relating to government service. The service-rules in the Code embodythe contract of service between a public officer and the Government. Itis a convenient figure of speech for applying.by analogy principles ofthe law of contract. It does not mean that the code.derives its forcefrom the contract or that the rights and obligations.of the public officerare duties of contract so that they cannot be varied without hisconsent. '1.'
The general principle in public service is that a public officer holdsoffice at pleasure. The constitutional doctrine that public officers holdoffice during pleasure has two important consequences:
The_Govemment has a right to regulate or determine the tenureof its employees at pleasure not withstanding anything in theircontract to the contrary.
Secondly the Government has no power to restrict or fetter itsprerogative-power of terminating the services of the employee atpleasure by any contract made with the employee.
Counsel for theJst respondent referred us to the case of De'Zoysav. Public Service Commission (16) and De Alwis v. De Silva (17)
which followed it in support of his contention that the EstablishmentCo_de did not have the force of law.
In De Zoysa v. Public Service Commission (supra) H. N. G.Fernando, J. relied on the Privy Council decisions of Venkatarao v.Secretary of State (18), Rangachari v. Secretary of State (1 9) to reachhis conclusion that the Public Service Commission rules relating to theprocedure to be followed prior to the retirement of a public officer didnot have the same legal effect as a statutory provision.
In Venkatarao's case (supra) section 96(B) of the Government ofIndia Act 1919 provided in express terms that appointments to CivilService of the Crown in India are appointments during His Majesty'spleasure. The statute also provided that rules could be maderegulating discipline and conduct of civil servants. Rules were madewhich contained provisions for proper departmental inquiry fordismissal and appeal against dismissal. It was held by the Privy Councilthat the rules could-not limit in any way the legal right of the Crown todismiss at pleasure. The rules gave the members of the civil service asolemn assurance that the right to dismiss would not be exercised in acapricious or arbitrary manner, but-they did not confer any legal right.
Sri Lanka Law Reports
(19861 ’ SnL R
On a construction of the relevant provisions, the Privy Council held thatHis Majesty's pleasure was paramount and could not legally becontrolled or limited by the rules. Two reasons were given for theconclusion, namely (1) section 96(B) in express terms stated that theoffice was held during pleasure and there was no room for theimplication of a contractual term that the rules were to be observedand (2) sub-section (2) of'section 96(B) and the rules made carefulprovision or redress of grievances in the administrative process. It heldthat there is no right in the public servant enforceable by action to holdhis office in accordance with the rules and he could therefore bedismissed notwithstanding the failure to observe the procedureprescribed by them. The main point that was urged in Venkatarao'scase (supra) was that under the relevant civil service rules no publicservant could be dismissed except after a properly recordeddisciplinary inquiry; the departmental inquiry prescribed by the ruleswas found not to have been held. Even so the Privy Council held thatthat His Majesty's pleasure was paramount and could not legally becontrolled or limited by the Rules.
In Rangachari's case (supra), a police officer Was dismissed by anauthority subordinate to that, by which he had been appointed. The
Privy Council referred to the following proviso in section 96(B) – "Butno person in that service (the Civil Service of the Crown) may bedismissed by any authority .subordinate to that by which he wasappointed" and distinguished Venkatarao's case (supra) with thefollowing observation;
"It is manifest that the stipulation or proviso as to dismissal is itselfof statutory force and stands on a footing quite other than anymatters of rule. . . . which are of infinite variety and can bechanged from time to time."
It was held that the proviso was a mandatory provision and qualifiedthe pleasure tenure and provided conditions precedent to the exerciseof powers by His Majesty.
In Rengachari's case (supra) Their Lordships drew a distinctionbetween the legal effect of the statutory provision which had beenbreached in that case and of a mere rule, framed under the statutewhich was inconsistent with the main provisions of the statute. Thisdistinction between the rules and the provisions of the Act is wellemphasised in the High Commissioner of India v La//(20).
Abeywickrema v. Pathirana (Sharvananda, C.J.)
The relevant statute in that case was Government of India Act1935. The Privy Council (in an action by the dismissed officer for adeclaration that the order of dismissal was ultra vires and that he wasstill a member of Indian Civil Service) was satisfied that subsection 3 ofsection 240 which provided for reasonable opportunity being given ofshowing cause against the action purported to be taken in regard tohim had not been complied with. The Privy Council made a distinctionbetween the rules and the provisions of the Act and ruled thatsubsection 2 & 3 of section 240 indicated a qualification or exceptionto the antecedent provision in subsection 1 of section 240. Itobserved:
"that provision as to reasonable opportunity of showing causeagainst the action proposed, i.e. subsection 3 is now put on thesame footing as the provisions now in subsection 2 and that it is nolonger resting on rules alterable from time to time but is mandatoryand necessarily qualifies the right of the Crown recognised insubsection 1".
The rules which were not incorporated in the statute thus do notimpose any legal restriction upon the right of the Crown to dismiss itsservant at pleasure. The rules could not override or abrogate thestatute and the ptrotection of the rules could not be enforced by anaction so as to qualify the statute, where the statute expressly andclearly laid down that the tenure was at pleasure. The rules framedunder the Act must be consistent with the Act and not in derogation ofit. The decision of the Privy Council on the provisions of theGovernment of India Act 1915 and of 1935, can be sustained on theground that the rules made in the excercise of powers conferred underthe Act cannot override or modify the tenure at pleasure provided bysection 96 (B) or 240 of the respective Acts, as the case may be. Theultra vires nature of a rule made under the main Act was commentedon by Latham, C.J. in Fletcher v. Nott (21):
"It is contended that these rules create legal rights so thatmembers of the force can be dismissed only if the procedure setforth in the rules is followed. In my opinion the rules do not conferupon the plaintiff the right which he contends, namely, the right tohold his office unless and until he is dismissed in accordance withthe rules set forth. If according to the true construction of the Act aconstable holds his office only during pleasure, no rule made under •the Act can alter the conditions of his tenure of office so as toprevent him from being dismissed at the will of the Crown."
Sri Lanka Law Reports
[1986] 1 SriL.R.
In my view the rules framed by the Cabinet of Ministers in theexercise of their power .under Article 55(4) cannot be placed on thesame legal footing as the Public Service Regulations-referred to inZoysa's case (supra), De Alwis v. De Silva (supra).
The Establishment Code is a code of conduct for public officers andhas been issued by the Cabinet of Ministers in the exercise of theirpowers under Article 55(4). The exercise of the power is subject tothe provisions of the Constitution. One of the provisions being allPublic Officers shall hold office at pleasure (Article 55 (1)). No ruleframed under this Article can supersede the pleasure tenure of thepublic officers. The Cabinet of Ministers cannot make any ruleabrogating or modifying this tenure. If a rule or code had been madeby the Cabinet within this limit, the rule made by that authority in theexercise oT the powers conferred by the Constitution would beefficacious within the said limitation. Thus rules framed under Article55(4) have a statutory force provided of course they are notinconsistent with any provision of the Constitution, In case of breachof any of those rules therefore the aggrieved person has a remedy in acourt of law depending on the nature of the rule whether mandatory ordirectory.
• It is to be borne in mind that a provision like Article 55(4) of theConstitution was not there in the earlier Constitution and hence theruling and reasoning in De Zoysa's case (supra) and De Alwis' case(supra) in any event, will not apply to rules framed under Article 55 (4t.The Article has. given a new dimension to the statutory nature of theEstablishment Code.
The provision of the Indian Constitution which corresponds toArticle 55(4) of our Constitution is Article 309. It provides as follows:
"Subject .to the provisions of this Constitution Acts of theappropriate Legislature may regulate the recruitment and conditionsof service of persons appointed to public service and posts in' connection with the affairs of the Union or of any State.
Provided that it shall be competent for the President or
such person as he may direct in the case of service and posts in, .connection with the affairs of the Union and for the Governor of aState ,or. such person as he may direct in the case of services and. posts.in .connection with the affairs of the State, to make rulesregulating .the recruitment, and the conditions of service, of personsappointed to such services and posts until provision in that behalf is
SCAbeywickrema v. Pathirana (Sharvananda, C.J.)‘143
made by or under; an. Act'of the. appropriate-legislature under-; thisArticle, and any rule so made shall have..effect subject to, theprovisions of such Act."
Basu in his "Shorter Constitution of India" 9th Ed. atpage 697; setout the law on this article as follows:
"though the position .yva.s .otherwise- prior to :the Constitution(Venkatarao v. Secretary-of State (supra), Rangachari v. . Secretaryof,, State, (supra) it is now settled (State pf.'U.P., yuBabu Ram (22))the rules framed, under 309 or.-under,,the,-proyisionsf Of>.theConstituent Acts which are contained under. Article- =313- (State ofMysore v. Salary (,2;3)).have.':a statutory,force: pnovided-ioffcourse,they are not .inconsistent, with-iany,(provision,, ofpthe -Constitution,including Article, 3T0. itse],f, -.which: ienshrines -the vdOctrine- ofpleasure; or, the-provisions, oh any.,statute;".-; {'Sduklaovi:State, ofGujarat (24)) .
The law in .India.isvthat the rules.framed .undeA-Article-i309..ofi.theIndian Constitution, by the President.- Governor, as.the.easeimay-.be.are justiciable, and enforceable, in,a .court o,f law. and>'cannot,beregarded as mere administrative,direction If-there, is.a breaeh-o.f thestatutory rules framed under Article,309,..the aggrieved, governmentservant could have recourse to the eourt.for .redress.
-•If rules made under Article 309 of the Indian Constitution attractstatutory force, in-my view by parity of argument, the-rules madeUnder Article 55 (4falsq sho'uld be held to-have statutory force.
In Raj Kumar v. Union of India (25) the Supreme Court stated that:
"where a public servant has.ipvited,-.by his letter,.of resignation,termination of his employment,; his.-services normally terminate .fromthe date on which the letter of resignation is accepted by-theappropriate authority and in the absence of.any law or rule governingthe conditions, of his service-to:the contrary, ,it .will not be open to thepublic servant to withdraw his resignation, after it is accepted by theappropriate authority. Till the resignation is accepted by theappropriate authority in consonance with the rules governing theacceptance; the public ,servant concerned has locus poenitentiae.but not thereafter."
Sri Lanka Law Reports
[1986] 1 SriL.R.
The judgment of the High Court of Punjab, appealed from in theabove case is reported in A.I.R. (Punjab) 1966. p. 221. It sets outvalid and persuasive reasons why acceptance of his resignation in thecase of a government servant is necessary for the termination of hisservices. The court said:
"We are of the opinion that acceptance of resignation isnecessary before the service of an employee can come to an end.Such an acceptance is a necessary step in giving effect to theresignation and until that step has been taken the resignation cannotbe said to be complete and effective. In the case of a civil servant itis not a matter affecting the two parties, namely, the employee andthe Government. The public has also the right to the service of allthe citizens and may demand them in all Departments. Civil as wellas in military. We cannot lose sight of the fact that civil servants areappointed for the purposes of exercising the functions and carryingon the operations of the Governient. They have to discharge allsorts of duties, judicial as well as administrative, and it would resultin complete chaos if it were held that the resignation would becomeeffective as soon as a civil servant tendered it. The exigencies of thepublic office may demand that the civil servant must carry on theoperation of the Government and continue to discharge thefunctions till the Government is able to make alternativearrangements. A political organisation would seem to be imperfectwhich should allow the repositories of its powers to throw off theresponsibility at their own pleasure. Even if the matter be treated asa contract between the parties the same result would follow. Aperson who has agreed to serve till his services are terminated mustfirst make an offer communicating his intention to terminate andthat offer must be accepted."
In Raj Narayan v. Indira Gandhi (26) the Supreme Court quoted withthe approval the rulings in Raj Kumar v. Union of India (supra), thatwhen a public servant has invited by his letter of resignationdetermination of his employment, his services normally standterminated from the date on which letter of resignation is accepted bythe appropriate authority and said –
"the question as to when Yasapal-Kapur's (the civil servant inquestion) resignation became effective will have to be determinedwith reference to his conditions of service."
Abeywickrema v. Pathirana (Sharvananda, C.J.)
In Union of India v. Gopal Chandra (27) the Supreme Court said:
"in the case of a government servant/or functionary, who cannot,under the conditions of his service/or office, by his own unilateralact of tendering resignation give up his service or office, normally,the tender of resignation becomes effective and his service/or officetenure terminated when it is accepted by the competent authority."
I am of the view that the 1 st Respondent is bound by section 4 ofthe Establishment Code to obtain proper acceptance and that histenure of office would stand terminated only from the date on whichhis letter of resignation P32 was accepted by the appointing authority,who is the appropriate authority and that the unilateral repudiation ofhis office by him was not sufficient to sever his connexion with theservice.
Mr. de Silva submitted in support of his contention that it wasbecause under the common law acts of unilateral resignation arelegally sufficient to terminate the contract of public employment, thatthe legislature provides that in certain categories of employmentunilateral resignation or repudiation is legally ineffective to terminatethe contract. He referred us to section (11) of the Army Act No. 17 of1 949 (Cap. 357) which reads as follows:
"11(1). An officer of the Regular Force or Regular Reserve shall nothave the right to resign his commission, but may beallowed by the Governor-General to do so.
1 1(2). An officer of the Regular Force or Regular Reserve whotenders the resignation of his commission to theGovernor-General shall not be relieved of the duties of hisappointment until the acceptance of the resignation isnotified in the Gazette."
Similar provision is found in section 1 1 of the Navy Act No. 34 of1 950 (Cap. 358), section 1 1 of the Air Force Act No. 41 of 1 949 asamended by Act No. 21 of 1954 (Cap. 359) and section 27 of thePolice Ordinance No. 1 6 of 1865, as amended from time to time up toAct No. 32 of 1 956 (Cap. 5,3). The violation of these provisions is anoffence. Our attention was drawn also to the Compulsory PublicService Act No. 70 of 1961 where graduates to whom the Act appliesare subject to compulsory public service in terms of section 4 of theAct (here by implication, the right of resignation is taken away). Underthese statutes the right to unilateral resignation from office is taken•away in a limited category of employment.
Sri Lanka Law Reports
11986] I Sn'L.R.
It is to be. noted that all the statutes, referred to above wereenacted prior to. the coming into operation of the,present Constitutionof 1978.. As I stated earlier the Constitution of 1978 has given astatutory dimension or base for the Establishment Code, framed underArticle. 55 (4) of the-Constitution.. In, any event the fact that statutorylaw-makes a-specific-provision that .resignation in certain specificinstances is inoperative until it is accepted does not necessarily meanthat'under the'common law unilateral resignation was legally effectiveto terminate the contract of public employment’. The contention thatan intentio'h to alter the general law is to be inferred from partial orlimited’ ena'ctment rests on'the maxim "expressio unius, exclusioalteriC/s"'-'In'Maxwell Interpretation of Statutes, 1 1th Ed., p. 306 -307, it is s'tated that;
— that-maxim is-inapplicable in such cases. The only inference■which :a'court'can:>draw from such superfluous provisions (whichgenerally, find-a-place-in Acts to meet unfounded objections and idledoubts’) is that the legislature-was either ignorant or unmindful of theA real state of-the law, or that-it acted under the influence of excessivecaution. If the law be different from-what the legislature supposed itto be, the implication arising from the statute, it has been said,cannot operate as a negation of its existence and any legislationj.“ founded on such' a mistake has not the effect of making that lawwhich the legislature erroneously assumed to be so."
Tt is-not'safe to conclude from the aforesaid statutory provisionsreferred to above that the legislature assumed correctly that unilateralresignation or repudiation is sufficient to bring to an end a contract ofpublic employment.
' Mr-. de'Silva contended as an alternative to his earlier submission,that'the evidence showed that: 1st respondent by his conduct hadrepudiated’his contract o'f employment and that such repudiation hasbeen accepted by the State. He urged that an unaccepted resignationfollowed by absence from duty without leave and taken with hissubsequent conduct.) namely his failure to perform his duty as ateacher- and' principal, 'his handing over all his equipment and recordsofcthe school to Jarian'arida, the acting Principal, his nomination as acahdidate Jor toe election and-his participation in a political campaignirv-'i/iolatiOrT of- the provisions'of the1 Establishment Code manifestedunequivocally his disposition not to be bound any longer by the terms
Abeywickrema v. :Pathirana (Sharvananda, C.J.)
of the contract. Mr. de Silva maintained that P32 (letter of .resignation)coupled with its-attendant circumstances; are sufficient,to,.establish thefact of repudiation of the contract b.y the. 1 st respondent..
On the assdmptibn that 1 st'respondent had unilaterally repudiatedthe contract," thenext question, arises whether the evidence showedthat there'has been acceptance of the repudiation by the' State and therelease of the 1st respondent!frbm his service. The evidence showsthat the 1 st respondent was absent from duty without leave from21.4.83. The Regional Director of Education has stated that he did •not send any notice of vacation'bf post although he had the'authorityto do so in term's of the'relevant circular1- vi.de'p^ra 1j2'oTP'45 marked1B1 1. He admitted that if 'a Grade III Principal'does ’not repprt,for workhe would issue a letter of vacation "of post' and; report' 'the matter to the.Director of Education and the Secretary, Educational ServicesCommittee, but he had not1 served any notice of vacation of post onthe 1st respondent at any time "and' that he had hot calied 'for anyexplanation from him for 'contesting a parlidfhfentary election,’ 'Whilebeing Principal of a Maha’Vidyalaya; in breach of’sectibn 1 of Chap.XXXll of the EstablishrhCnt Code.
The evidence of Wijesiri Perera the Regional Director was that hewas never questioned by the Ministry of Education regarding hisacceptance of 1st respondent's resignation P32 and that he hadcalled upon the'1st respondent by letter'P42 dated 2;6.83, to pay" on account of his resignation from service with effect from 21.4.83a sum of Rs. 2,395 due from hinrTto the Council."
Mr. de Silva submitted that despite all his aforesaid infraction-of dutyno steps whatever were taken by the .State tovindicate, to .the 1strespondent that the , State was still holding him on to his contract ofservice and was not accepting his repudiation of the contract.
Mr. Choksy's rejoinder .was that there is" no evidence that theEducational Services Committee, which is the^competent’ authorityunder Article 58(1) of the Constitution had acbepted br Was' aware ofthe repudiation of his contract by the 1 st respondent and had releasedhim from service by 18th May, the day of election.' The learnedelection Judge has held that-
"the Educational-Seryiees Committee-is a. body which met and.functioned in Colombo .alt seenns-tome that-in. this regard it was theRegional..Director, of Education: the.-head of the Department whowas the accredited agent of the State. By the failure on the part of
Sri Lanka Law Reports
11986} 1 SriL.R.
the State's agent to take appropriate action in a situation whichclearly called for action. I am satisfied that the State elected toaccept the repudiation of the contract by the 1st respondent. TheState's silence or inaction in the proved circumstances of this caseis evidence of its election to accept the repudiation of the contractof service by the 1st respondent. Accordingly I hold that the 1strespondent ceased to be a public officer with effect from 21.4.83."
I cannot agree with the process of reasoning of the Election Judge.In my view his conclusion is flawed by his assumption that theRegional Director of Education, the head of the department was theaccredited agent of the State for the purpose in issue. In terms ofArticle 58(1) of the Constitution, on the delegation of powersevidenced by P1 and P 2 it is the Educational Services Committee thatwould be the agent of the State in regard to appointment, transfer andtermination of services of a public officer employed by the Ministry ofEducation. The Regional Director of Education did not have authority,actual or ostensible as would bind the State "Ostensible authority"involves a respresentation by the Principal as to the extent of theagent's authority. No representation by the agent as to the extent of hisauthority can amount to a holding out by the principal. (A. G. v. A D.Silva (28)). Nothing done or omitted to be done by the RegionalDirector could bind the Educational Services Committee in the matterof termination of the service of the 1st respondent. Hence theimpugned acts and omissions of a Regional Director of Education willnot affect the State and cannot be treated as evidence of acceptanceof the 1st respondent's repudiation by the State. The 1st respondenthas failed to establish-the burden being on him-any act of the Statereleasing him from his service by the election date.
Mr. de Silva submitted that in any event the 1st respondent hadvacated his post in terms of section 7 of Cap. V of the EstablishmentCode. This section reads thus:
"7. Vacation of Post
7:1 – An officer who absents himself from duty without leavewill be deemed to have vacated his post from the dateof such ahsence.and he should be informedaccordingly at once by registered post or by personaldelivery on him.
Abeywickrema v. Pathirana (Sharvananda. C.J.j
7:2 – Charges should not be framed against him nor shouldhe be called upon to submit an explanation for hisabsence, without leave.
7:3 – If he volunteers an explanation within a reasonable timeit should be considered by the authority who holdsdelegated authority under the Public ServiceCommission Rules to impose disciplinary punishmentson him and permission to resume duties may beallowed or refused by that authority."
It cannot be controverted that the 1 st respondent had been absentfrom duty without leave from 21.4.83. It was argued by Mr. de Silvathat according to the aforesaid section 7:1 the 1 st respondent shouldbe deemed to have vacated his post form 21.4.83 and had thusvacated his post. I cannot accept counsel's construction of section7:1. In my view what the section means is not that a person who getshimself absent from duty without leave automatically vacates his postand that his employment comes to an end; but that if he absentshimself without leave, he will be deemed to have vacated his post, fort*he purpose of further action, such as termination of his services,being taken against him. That is why the section requires the officer tobe informed that he is considered to have vacated his post. Section7:3 provides that if he volunteers an explanation he will be permittedto resume duty. The vacation of post under section 7(1) is onlyprovisional and not final. A further step confirming the vacation has tobe taken by the proper authority to finalise the termination of service.An officer.may absent himself from office without leave forunavoidable reasons such as sudden illness or some other misfortune.If the construction contended for by Mr. de Silva that an officer, ipsofacto vacates his post, if he is absent without leave, is accepted, thesection will work great hardship and injustice to public officers. It is tobe noted that the Deputy Solicitor General disowned thatconstruction. I
I agree with Mr. Choksy, that section 7(1) is intended to safeguardthe interests of the State and that it does not confer a right on thepublic officer to repudiate the contract of employment unilaterally. It isthe State which alone has the right to treat a public officer, whoabsents himself without leave as having vacated his post. A publicofficer cannot plead his own breach of duty as proprio vigore.
Sri Lanka Law Reports
[1986] 1 SriL.R.
terminating his employment, it is. for the other party to the contractviz: the State to treat that breach as a ground for terminating theemployment, and until the State chooses to. do so. the officialcontinues in the eye of the law. in employment. The State, in this casehas not served any vacation of post notice.
Mr. de Silva went on to submit that the evidence showed that the1st respondent had de facto ceased'to be a public officer on therelevant, dates. He argued that .the disqualification under Article91(1 )(cO(vii) of the Constitution applied only to a public officer who isin fact holding an office, the initial of the salary scale of which is notle.ss than Rs.. .6,720 per annum. According to him the de jure holdingof .such'an office is not sufficient. There should be a de facto holding.He submitted that all the evidence pointed to the' 1st respondenthaving de facto ceased to hold the office of Principal of the MahaVidy.aiaya. He drew a distinction between de facto holding and de jureholding and.c6ntehd.ed that, though in law the 1 st respondent may nothave ceased'to hold the impugned office; but if in fact he had ceasedto hold that'bffice,'he would not suffer the disqualification underArticle. 91 of the Constitution. In my view this construction of Article91 ,(T),(d): (vi.i) is not tenable. This Article disqualifies a particularcategory of public officers, viz. those whose office attracted an initialsalary scale which was not iess than Rs. 6,720 per annum. ThatArticle'does not consist of three components such as (a) a publicofficer (b) holding an office '(c) an office the initial of the salary scale ofwhich is not.less than Rs. 6,720 per annum. The words "holding anyoffice.,..Rs. 6,720 per annum"’are descriptive of the category
..of public officers who are disqualified. These public officers holding anoffice the .initial of the salary scale of which is less than Rs. 6,720 perannum are excluded "from the disqualification and are entitled topolitic,al rights. Section 1.3 of the Ceylon ConstitutionalOrder-imCouncil 1946 (Soulbury Constitution) (Cap. 379) stipulatedthat- ..
"a person shall be disqualified from being elected or appointed as
a Senator or member of the House of Representatives, if he is a. public.officer/'
Undbr this section all public officers of whatever rank and ‘drawingwhatever salary were disqualified. The disqualification applied to theentire class of public officers.
The Constitution.of Sri Lanka (1972) which replaced the SoulburyConstitution, modified this disqualification by granting political rightsto a certain class of public or State Officers. It disqualified only a "state
SC.Abeywickrema v. Rathirana (Sharvananda. C.J.)151
officer" holding ahy office initial'ot the salary 'scale of Which'iS'h'ot lessthan Rs. 6,720 per annum Mde'section- 70(c)(v) of the 1,972'Constitution. The present 1 978 'Constitution has adopted thisdistinction. Thus the 1972 and 1978 Constitutions do h'ot contain ageneral disqualification of all public, officers.: They disqualify only aclass of public officers, viz. whose office entitles them to a salary, notless than Rs. 6,720. per.annum. A person acquires a status.of a publicofficer because he holds a paid office, under the /Republic. :Jhere is noquestion of a public officer not holding an office. There can be a de.jure holding,-and a de facto holding of an office vyithput being emittedde jure to it. AHy officer -holding de jbre. or de-facto 'an1'office"b'f thedescription referred'-to in Article !9 1:(1 j;( tf) (Vii j suffers thedisqualification:'The only -distinction1 is' that'a de jure public officercontinues to bear the stamp of public officer until the legal terminationof his services. While de, facto a; publictefficep ceases it.o be such whenhe in fact ceases so to function, f.do pot: agree, with–the.contention;ofMr. de .Silva that for the purpose of Article -.91 (T)(d)(yii); the> officershou.ld hold, the- office .in . the .sense of in 'fact- functioning; as sucholfreer.-: ■-.-j.
The question'arises whether;fhe: Educational Services Commiftee orthe State is estopped from questioning the validity of the acceptanceof 1 st respondent's resignation;,byJhe.R1qgional Director, ,.
For a 'pl'ea [o‘f estoppel 'to succeed ’th'e i st despondent shouldestablish that'(a) a representation'WaC rn'ade to him by the EducationalServices Committee brthe State that acceptance of.such,resignationby the Regional 'Director'was' sufficient, to give'efficacy to hisresignation and (b) that he was induced.by such: representation to actupon it …and. he therefore refrained, from obtaining the-acceptance ofhis resignation by the. Coptmittee;.that.the., representation was, the.cause,of^.his; so acting .erroneously, that, he-.had- been ted to actdifferently from what he would otherwise have done. The 1strespondent did riot give "evidence to1 substantiate any such inducementand its impact on-him. Hence evidence that the -1st respondent reliedon the1 representation is wanting. On the other hand in his preliminaryobjection dated 22nd of August 1983, the Tst respondent states :
"• ' “The-respondent's'resignation has'been Submitted to and' accepted by the Regional Director of Education,1 who is the authority
by whd'm all Grade III Principals of- Government Schools are
appointed, transferred and dismissed."1
Sri Lanka Law Repons
[1986} 1 SriL.R.
This statement militates against any suggestion that the 1strespondent's conduct was influenced by any representation made bythe Educational Services Committee. It was the result of his ownerroneous view of the legal position.
The State is not subject to estoppel to the same extent as anindividual dr a private corporation. Otherwise it will be renderedhelpless to assert its powers of government and therefore the doctrineof estoppel is not applicable against the State in its govenmental,public or sovereign capacity.
A waiver would debar,a person from raising a particular defence to aclaim against him arising when either he agrees with the particularclaiment not to raise that particular defence or so conducts himself asto be estopped from raising it.
A waiver must be an intentional act with knowledge. It necessarilyimplies knowledge.of one's rights vis a vis the other party's infractionand an election to abandon those rights. Accepting of rent withknowledge of the breach constitutes waiver whether the landlordintended to waive or not.
An intention to waive a right or benefit to which a person is entitledis never presumed.
"The presumption is against waiver, for though everyone is underour law at liberty to renounce any benefit to which he is entitled, theintention to waive a right or benefit to which a person is entitledcannot be lightly inferred, but must clearly appear from his words orconduct." Per Basnayake, J. in Fernando v. Samaraweera (29).
The waiver must be clearly proved.
-In order that a waiver be implied from conduct there must beevidence of unequivocal act on the part of the creditor showing that heknew what his rights are and that he intended to surrender them.
"A waiver may be implied if such conduct consists of someunequivocal act on the part of the creditor showing that he knewwhat his rights were and that he intended to surrender them."Wille-Principles of South African Law, 5th Ed., p. 356.
The 1st respondent's plea of waiver cannot survive the'applicationof the above tests. The evidence does not show that the EducationalServices Committee was at any material time aware of the 1strespondent's abortive resignation.
SCAbeywickrema v. Pathirana (Sharvananda, C.J.')153
The doctrine of estoppel or waiver cannot in any event be employedto enlarge the powers of a public authority. In Public Law the mostobvious limitation on the doctrine of estoppel is that it cannot beinvoked so as to give an authority power which it does not in lawpossess/ln other words no estoppel can legitimate action which is -ultra vires. Wade-Administrative Law, 5th Ed., p. 233.
Accordingly in Rhyl Urban District Council v. Rhyl Amusements Ltd.(30) it was held that the local authority were at liberty to deny thevalidity of their own lease contrary to the rules which govern privatelettings. No arrangement between the parties could prevent either ofthem from asserting the fact the lease was ultra vires and void. Thecourt cited with approval the dictum of Lord Greene, M.R., that-
“The power given to an authority under a statute is limited to thefour corners of the power given. It would entirely destroy the wholedoctrine of ultra vires if it is possible for the donee of statutorypower to extend his power by creating an estoppel."-page-475.Waiver is closely akin to an estoppel. The primary rule is that nowaiver of rights can give a public authority more power than itlegitimately possesses. No amount of waiver can extend a publicauthority's power or validate action which is ultra vires. The principlehere is that law which exists for the general public's benefit may not bewaived with the same freedom as the rights of a private person. ■
"The employees of public authority may often be asked to adviseor rule upon some question which only their employing authority candecide. Expenses may reasonably be incurred in reliance on theadvice given but if it turns out to be wrong there is usually no legalremedy. The authority's freedom to decide as it thinks the publicinterest requires must be on no account be compromised, hardthough the result may be" Wade-bib Ed., p. 341.
In Attorney-General v. A. D. Silva, (supra) the Privy Council observedat page 537-
"It may be said that it causes hardship to a purchaser at a saleunder the Customs Ordinance, if the burden of ascertaining whetheror not the Principal Collector has authority to enter into the sale isplaced upon him. This undoubtedly is true. But where as in the caseof the Customs Ordinance the Ordinance does not dispense withthat necessity, to hold otherwise would be to hold that publicofficers had dispensing powers because they then could byunauthorised acts nullify or extend the provisions of the Ordinance.Of the two evils, this would be the greater one."
Sri Lanka Law Reports
(19861 I Sri L.R.
The evidence of witnesses called on behalf of the 1 st respondentsupported by the documents 1 R 1 7, 1R18, 1R22-34 establish thatthe Regional Directors of Education in different parts of the country asHeads of Department have been accepting letters of resignation andno query has .been raised, by the Ministry of Education or by theEducational Services Committee. It is true that the Ministry had in thecase of the resignation of one Stanislaus, a training master questionedthe propriety. But no query was raised regarding the propriety of theacceptance of 1 s.t respondent's resignation, by the Regional Director,(Salle, although a copy of P4 1 was sent to the Ministry. The electionJudge concludes- .
"It would therefore appear that a fairly widespread practice had… grown up of Heads of Department accepting the resignation ofassistant teachers in contravention of the provisions of theEstablishment Code.”
But wrong practice does not make good law as it involves giving theRegional Directors power which they do not possess and no estoppelcan.give the.authorities power which they do not possess. Admittedlyin: the, delegation of powers the Regional Director is not the functionaryvested with the power of accepting the resignations of officers of thecategory of the 1st respondent.
"An element which is essential to the lawful exercise of power isthat it- should be exercised by the authority upon whom it isconferred and by no one else. The principle is strictly applied, evenwhere it ..causes .administrative inconvenience, except in caseswhere it may reasonably be inferred that the power was intended to.be delegable. Normally the courts are rigorous in requiring the■ power to be exercised by the precise person or body stated in thestatute, and in condemning as ultra vires action taken by agent,sub-committee or delegates,'however expressly authorised by theauthority endowed with the power" Wade ax page 319.
In Barnard v. National Dock Labour Board (31) registered dockworkers were suspended from their employment after a strike. Thepower to suspend dockers under the statutory dock labour schemewas vested in the local Dock Labour Board. The suspensions weremade by the Port Manager to whom the Board has purported todelegate its disciplinary powers. The dockers obtained declarationsthat their suspensions were invalid since the Board had no power todelegate its functions and should have made the decision itself. Thiscase was approved by the House of Lords in the Vine's case (supra).
SC ■Abeywickrema v. Pathirana (Sharvananda. C.J.)155
I have held supra that there was no delegation of the power ofappointment, transfer or dismissal, referred to in Article 58(1) of theConstitution, to the Regional Directors of Education. The plea ofwaiver' will involve assumption by the Regional Director of Educationof powers which he does not in law possess and the legitimationaction which is ultra vires and void. Hence the plea cannot besustained. "One cannot by waiver convert a nullity into validity. "-PerSimon, J., in Mayes v. Mayes (32). _-
Mr. de Silva mounted an argument based on Article 55(5) of theConstitution which provides-
"Subject to the jurisdiction conferred on the Supreme Court under■ paragraph (1) of Article 1 26 no Court or tribunal shall have power orjurisdiction to inquire into, pronounce upon or in any manner call inquestion, any order or decision of the Cabinet, of Ministers, aMinister, the Public Service Commission, a Committee of the'PublicService Commission or of a public officer, in regard to any matterconcerning the appointment, transfer; dismissal or disciplinarycontrol of a public officer."
He vehemently contended that the validity of the order of theRegional Director of Education, Galle, accepting the 1st respondent'sresignation, accepting P32 cannot be inquired into or called inquestion by any court. He said that the preclusive clause shut out anyreview of the validity or legality of any order or decision of a publicofficer, even if it was, ultra vires or incompetent for him to make thatorder or decision. If it was intra vires for a particular public officer tomake the order or decision then it cannot.be disputed that the order ordecision is immune in a court of law from any challenge on whateverground. But if the particular officer had no legal authority under section58 to make that order Article 55(5) does not bar a challenge of thatorder, but if the order/decision of the public officer, acting ultra vireshas been adopted by the "Cabinet of Ministers", a Minister, PublicService Commission, a Committee of the Public Service Commissionor of a public officer to whom the Public Service Commission hasmade the necessary delegation under Article 58(1). then, of course,such decision or order becomes the order of that constitutionalfunctionary and certainly its validity cannot be inquired into. But as washeld by this court in its order, between the present appellant and the1 st respondent in Abeyawickrema v. Pathirana (supra):
Sri Lanka Law Reports
[1986] 1 SriL.R.
"The provisions of Article 55(5) may be invoked or applied onlywhen the order or decision, in regard lo any matter concerning theappointment, transfer, dismissal or disciplinary control of a publicofficer is made, inter alia, by a Public Officer- to whom the PublicService Commission or any Committee thereof has delegated interms of Article 58(1) of the Constitution, the powers ofappointment, transfer, dismissal or disciplinary control of anycategory of Public Officers."
An order or decision by an official who had no legal authority tomake that order/decision is in law a nullity and is non-existent in theeye of the law; such an order/decision is inoperative and void and it isopen to_a court to declare that it is a nullity.
"If one seeks to show' that a determination is a nullity, one is notquestioning the purported determination – one is maintaining that itdoes not exist as a determination." Per Lord Reid in the AnisminicLtd v. Foreign Compensation Commission (33).
For the purpose of declaring it a nullity, the court has jurisdiction toinquire into and pronounce upon the invalidity and non-existence ofsuch order/decision. This view of the law is implicit in the followingobservation of Latham. C.J., in Fletcher v. Non (supra).
"If the Commissioner's action can be attributed to the Crown, ashaving been adopted or ratified by the Crown, then the foregoingreasoning will apply to show, that the dismissal, even if. withoutcause, can give no right of action. If. on the other hand, theCommissioner had no power to dismiss and his action was not soadopted or ratified, then the position is that the plaintiff has not beendismissed at all. The dismissal is 'by reason of its origin bad andinoperative'."
Ouster clauses do not prevent the court from intervening in the caseof excess of jurisdiction; unreviewable administrative action is just asmuch a contradiction as is unfettered discretion – Wade at page 357.
In S. E. Asia Fire Bricks v. Non-Metallic Union (34) the Privy Councilwhen construing an exclusive provision of the nature of Article 55(5)drew the distinction between an error of law, which affects thejurisdiction and one which does not and held that since the award inquestion in that case contained errors of law, which did not affect the
Abeywickrema v. Pathirana (Sharvananda, C.J.)
jurisdiction of the industrial court, the award-could not be challengedin a court. Implicit in that ruling is the view that if the error of the lawrelated to the jurisdiction of the arbitrator to make that award, theexclusive clause would not immunise it from attack in a court.
The decision of the House of Lords in Anisminic Ltd. v. ForeignCompensation Commission (supra) shows that when words in astatute oust the powers of the court to review a decision of an inferiortribunal, they will be construed strictly and they will.not have the effectof ousting that power, if the inferior tribunal has acted withoutjurisdiction – as the decision is a nullity.
I have held earlier that it was not competent for the RegionalDirector of Education,(Galle to make an order accepting theresignation of the 1st respondent. Such an order does not attractfinality or unreviewability under Article 55(5). The order has not beenadopted by the Committee or Cabinet of Ministers, for it to acquirelegal validity.
Accordingly I hold against Mr. De Silva's submission on the questionof jurisdiction of this court to question the validity of the order of theRegional Director, Galle. I hold that the said order is null and void inlaw.
Mr. Choksy submitted that it will be sufficient for the petitioner toestablish that the. 1st respondent suffered the disqualification on thenomination day 22.4.83. On the other hand Mr. de Silva contendedthat the crucial day is the day of Election – 18.5.83.
Mr. Choksy submitted that nomination is an integral part of theelection process and that if the 1 st respondent was not qualified onthe nomination day, his election is void.
He cited the case Harford v. Lynskey (35) wherein it was held that acandidate-who was disqualified for election at the time of nominationby reason of his interest in a contract with a local authority, cannot benominated as a candidate, notwithstanding the fact that thedisqualification could have been removed by the date of the poll.
In Parkers "Conduct of Parliamentary Elections" 1985 Ed. it is statedat page 45, with reference to Harford v. Lynskey (supra) that-
"the same conclusion1 would follow if the disqualification was
based on the office or employment held by the candidate."
Sri Lanka Law Reports
[1986] ) SriLR.
'Mr. Choksy drew our atter'tion to section 28(1) of the CeylonParliamentary Elections, Order-in-Council, 1946, which reads asfollows:
"Any person eligible for election as a Member of Parliament maybe nominated as a candidate for election."
Mr. de Silva referred to section 77 (a) of the Ceylon ParliamentaryElections, Ordef-in-Council. and stated under that the election of acandidate can be declared void on a election petition only if thecandidate was at the time of the election a person disqualified fromelection as a Member.
In view of my conclusion that the 1 st respondent had not ceased tobe a public officer even on the election day, namely 18.5.83, and thathe suffered the disqualification in terms of Article 91 (1)(d)(vii) of theConstitution, it is not necessary to decide this controversial point.
Finally it was submitted for the 1st respondent that the appellant'scontention that unless his resignation is accepted by his appointingauthority the public officer stands disqualified inevitably leads toviolation of the fundamental, right to equality. His counsel has urgedthat .to interpret the relevant provision of the Establishment Code insuch a (banner so.as to make the right of candidacy (which is anintegral part of the franchise) dependent on the grant of permission bythe Executive tt> a section of the public service while other publicofficers are not so fettered is to violate the equality principle. Counseldrew our attention to certain provisions of the Constitution whichcountenance the right of unilateral resignation from office. He referredto Articles 38(1); 47; 66(b); 103(3); 114(3); 153(3) and1 56'(4)(bj which'provide that the office of the functionaries such asthe''President; Prime Minister, Ministers and Deputy Ministers,Members of .Parliament, Commissioner of Elections; any judicialofficer'or'scheduled public officer; the Auditor-General andParliamentary Commissioner respectively shall become.vacant if thesaid functionary.resigns rfs office by a writing under his hand. Counselargued that there are no intelligible differentia as between the case ofthe officersiwho are given the right of unilateral resignation from officeby the Constitution and 'the'ease of other public officers concerning
SCAbeywickrema v. Pathira'na (Sharvananda, C.J.)159
whom no express'provision is made in the Constitutioh . He said that todeny to a large number of public officers whose right of resignation isnot referred to in the Constitution,- such a right'of-terminating theirrelationship to enable them to:stand for election while permitting'thefunctionaries referred to in the Constitution that right of-freedom is tomake an invidious distinction that constitutes-unlawful'discriminationi: Icannot agree with the assumption on which , the argument is'basedthat-there are no intelligible differentia or that invidious distinction isdrawn -between the constitutional functionaries' referred to in theabove Articles of the: Constitution and the residue public office?®’whoare not granted1 the' concession of Unilateral-resignation: Article-170'ofthe 'Constitution-defines-a 'P'u'bli'cOffieer'-to mean a-persOmwho holdsany paid -office -under-the1 Republic'other than’ a judicial officer,1 butdoes not include- :
,. (a) the President,
■ -/P): ■ the Speaker, '■i.c) .a Minister,
a Member, of the Judicial Service Commission,
a Member of the Public Service Commission;*
a Deputy Minister,
a Member of Parliament,
the 'Secretary-General of. Parliament,
(./). -a Member of the President's-Staffs .
(j) a^member of tlie’staff of the Secretary-Genera! of Parliament.
The definition of 'Public Officer' in the Constitution is identical withthat, in the Establishment Code (vide, section 1, Gap: I of the Code)with the addition, that it.does not include an employee of,a PublicCorporation, a Statutory Board or an institution vested in theGovernment.
It is to be noted that the definition of 'Public Officer' both in theConstitution and in the Code excludes the President. Minister, DeputyMinister, Member of Parliament and Judicial Officer pointed to bycounsel as officers entitled to resign unilaterally under theConstitution.
Sri Lanka Law Reports
[1986] 1 SriL.R.
On the question of resignation, the Code contains a general ruleapplicable to all public officers without any distinction, thatacceptance is necessary to complete a resignation. But as pointed outby Mr. de Silva, certain public officers such as "scheduled publicofficer" under Article 114(3), Auditor-General. Commissioner ofElections and Parliamentary Commissioner out of the larger fraternityof public officers are permitted by the Constitution to have theirservices terminated on their unilateral resignation. The Constitutionthus provides an advantage or benefit to these officers which thatadvantage of benefit is not available to the general run of publicofficers. In that view, there appears to be discrimination and unequaltreatment of public officers. If there are no intelligible differentia whichdistinguish the public officers who are given the special treatment fromthose who are left out, and thus the fundamental right of equality hasbeen there by infringed that discrimination results from the provisionsof the Constitution. Article 1 2 of the Constitution dealing with equalitybefore the law cannot be invoked against discrimination made by theConstitution. The Constitution is the basic supreme law and generatesits own validity. The provisions of the Constitution are binding,because they form part of the Constitution. Assuming all publicofficers are similarly circumstanced there is no violation of theFundamental Right of equality when the Constitution bestows aspecial treatment to certain officers.
I hold that the election of the 1st respondent-respondent on18.5.63 as Member of Parliament for the Akmeemana Electorate wasvoid in law on the ground that at the time of his election he was aperson disqualified for election as a Member. I allow the appeal andset aside the judgment of the Election Judge and make determinationthat the Election was void.
The 1 st respondent-respondent shall pay the petitioner-appellantthe costs of this appeal and of the proceedings before the ElectionJudge.
RANASINGHE, J.-l agree.ATUKORALE, J.-l agree.DE ALWIS, J.-l agree.
Abeywickrema v. Pathirana
This is an appeal from the order of the Election Judge dismissing theelection petition challenging the 1st respondent's election as aMember of Parliament for the Akmeemana Electorate (No. 66). Theonly matter argued before us was whether the 1 st respondent was inlaw qualified to be elected as a Member of Parliament. Article91 ,(1)(C/)(vii) of the Constitution disqualifies a person from beingelected as a Member of Parliament or to sit and vote in Parliament if heis-
"a public officer holding any office the initial of the salary scale of
which is not less than Rs. 6,720 per annum."
It is not disputed that the 1 st respondent held the office of Principal(Grade III) of the Galaboda Aturuwella Maha Vidyalaya, Induruwa,under the Department of Education and that his initial salary was morethan Rs. 6,720 per annum. It is however the 1st respondent's positionthat he had ceased to be a public officer at all material dates. Thepetition against the 1 st respondent however is based wholly on theground that notwithstanding the circumstances relied on by the 1strespondent, the 1 st respondent continued to be a public officer andheld that office at the time of nomination and/or election and istherefore disqualified from being elected to Parliament.
It seems that the 1st respondent had not been properly advisedabout his position as a public officer and about his disqualification forelection. His conduct and acts appear to be indecisive and confusedand not one which we would have ordinarily expected from oneembarking bn such an important venture. By P28 dated 1 1th April1 983 he had first applied for no pay leave to contest the election. Onthe next day, after realising that that may not be adequate, by P32 of12th April 1983 he indicated that he was resigning from his officewith effect from 21st April 1983. The nomination date was fixed for22nd April-1 983 and the date of the election was 18th May 1983. Allthese letters are addressed to his Head of Department, the Director ofEducation, Galle, who is also described as the Regional Director.Probably these two le.rers had got into two different files. TheEducation authorities had notwithstanding P32 attended'to the matterof leave (P28 B, C, D & E) and by P31 of 21 st April 1 983 leave wasapproved from 1 5th April under 2:2:3 of section 2 of chapter XXXVIof the Establishment Code on the basis that the 1 st respondent wasnot a staff grade officer.
Sri Lanka Law Reports
[1986] 1 SriL.R.
His letter of resignation too had been processed (P33 & P34) andby P41, which was apparently issued when the 1st respondentinterviewed the Regional Director, the 1 st respondent was notified ofthe acceptance of his resignation. This acceptance was by theRegional Director. The letter granting leave was accordingly cancelled.Copies of the letter accepting the resignation had been sent to theAuditor-General, the Accountant, S/Educatio'n, C.E.O., and the ActingPrincipal of the school.
Now Mr. Choksy’s submission before us is that the letter ofresignation had not been accepted by the proper authority, namely theEducation Services Committee and that the Regional Director was notcompetent to deal with the matter.' Hence the 1 st respondent did notcease to be a public officer. Implicit in this submission and a matterthat was, argued at great length is the petitioner’s further contentionthat a resignation cannot be effected unilaterally but. for it to beeffective, it has to be accepted by the other contracting party.
1 Let me first turn to the applicable legal provisions. The PublicService has -been considered important enough to be dealt with in thepresent Constitution in a separate chapter, namely chapter IX. The1978 Constitution like the 1972 Constitution intended that the publicofficers and the public service should be placed within the exclusivedomain of the Executive. This constitutes a radical change and a breakwith tradition. Except for certain types of public officers, who have tobe appointed by the President (Article 54), the appointment, transfer,dismissal and disciplinary control of all other public officers is nowvested in the Cabinet of Ministers – Article 55(1). The Cabinet cannotdelegate this power in respect of Heads of Departments, but mustitself exercise it. Article 55(2). The Cabinet is empowered to delegateall or any of the rest of the.powers to the Public Service Commission -Article 55(3). However, the Cabinet can delegate the power oftransfer within a Ministry over certain categories of public officers to aMinister. Upon such a delegation the Public Service Commissionwould be denuded of its power. Article 57(1) empowers the Cabinetto direct the Chairman of the Public Service Commission to appoint aCommittee of the Public Service Commission to exercise the powersof the Commission in respect of specified categories of public officers.Such a direction by the Cabinet has to be complied with and wouldagain denude, the Public Service Commission of its powers over suchcategories of officers. Further sub-delegation both by the Public'Service Commission and such Committee is also permitted.
SCAbeywickrema v.'Pathirana (Wanasundera, J.)163
Since rhe coming into operation ol! the'pr'esent Constitution in 1:978,a series of directions, delegations and’notifications have been mode'regarding the exercise of authority over these’ public officers. 'In thisconnection Mr. Choksy referred us to ;the documents P-7,'P7A! P8;P4, 1 R1 2. PI. PI A, P9, P2, P3, P6, P4.3, P44 and' P45. Thisabundance of material .has not been gazetted or published andpresumably not available even to most members, pf the. public service,so much so,'that probably, only a very .experienced public officer wouldbe ab.le. to find his way. thro,ugh. thi.s material,to arrive,at what may bethe correct position on a matter a,t any given point,of time.,•.
'By Cabinet decision o'f t'he'4th October, 1 978'.(P,7), the,'Cabinetdelegated its powers over public officers, except for four definedcategories., td'the Public’ Service 'Commission.' "Die-'Public' Service-Commission was also authorised to sub-delegate its powers in 'thefollowing manner., Regarding staff grade posts, the proper authorityfor the purpose of delegation was to be the Secretary to the Ministry.In respect'Of the Combined.'Services, it should'behhe- Secretary to’theMinistry of Public Administration. In Should'be’the''Read Of theDepartment in case of Departments hot falling within a Ministry. Inregard to non-staff grade public officers, the proper authority shouldb'ethe’Head'of Department. For the purpose of‘this Cabinet decision’astaff grade officens defined'as one whose initial' consolidated salary isRs.6,720 per annum or above and whose annual increments areRs.. 360 and above. . ..,
This Cabinet decision had been communicated to the Public ServiceCommission by P7a of 5th October 1978. By P8 dated 11 th October,1978/the Public Service Commission informed the various RegionalDirectors' of Education of the 'Cabinet delegation and that RegionalDirectors, could only deal with non-staff grade public officers. Probablythis'may have been necessitated by the Regional Director havingearlier: exercised, power over staff grade officers or due to .someconfusion in the. matter. Letter dated 2nd.February 1979 (P4) fromthe Public Service Commission to the Secretary, Ministry of Education,states that the Public Service Commission had delegated theconcurrent powers'over new staff grade posts to the Secretary, theAdditional Secretary. and the. Senior Assistant Secretary of theMinistry of Education. Letter dated'8th March 1979 (1R12> is acommunication by the Secretary-! Ministry-of Education to "allofficersin charge of Establishment matters of the Ministry of Education". This'
Sri Lanka Law Reports
[1986] 1 SriL.R.
has not been issued either by the Cabinet or by the Public ServiceCommission. It is issued apparently consequent on P4. but seems togo much beyond it. This notification is titled " Deleg,ation of Powers*and intended to deal with all staff officers in the Ministry of Educationand is worded as follows:
"It is informed hereby the Powers in respect of appointments,transfers, dismissal from service and the disciplinary control ofofficers other than the officers of the combined services of theDepartments of the Ministry of Education had to be vested in thefollowing manner by the Public Service Commission undersection (1) of Article 58 of the Constitution of the DemocraticSocialist Republic of Sri Lanka."
It then proceeds to set out the instruction on the following tabulatedform:
Government servants of the StaffGrade in the Ministry of Educationand in the Departments of theMinistry
Government officers of theMinistry of Education who arenot of the Staff Grade
Secretary, Ministry of Education.
Secretary to the Ministry of Education.Additional Secretary, Senior AssistantSecretary."
A few months later the Cabinet decided on the establishment of anEducational Services Committee which brought about a completechange in the supervisory and managerial structure over officers in theEducation Department. By Cabinet Decision dated 10th October1979 (P1 A), the Cabinet acting in terms of Article 57, directed thePublic Service Commission to appoint a Committee for EducationServices This was notified to the Public Service Commission (P1).Once this Committee was appointed on 15th October 1979 (P2). thePublic Service Commission became denuded of the powers it hadpreviously exercised over these officers. The previous delegationcontained in documents P7 and P4 mentioned earlier' was alsoformally rescinded. This new arrangement has been brought to thenotice of the Ministry Officials and Heads of Departments who hadpreviously exercised delegated powers of the Public ServiceCommission.
Abeywickrema v. Pathirana (Wanasundera. J.)
Three documents P43, P44, and P45 have been produced by thepetitioner to show the delegation of authority by the EducationalServices Committee. For the purpose of this case it is of the utmostsignificance that Article 58( 1) permits the Committee to delegate itspowers to any public officer including a Regional Director. P43 dated18th November 1980 contains a delegation of powers in respect oftwo categories – staff grades on the one hand and non-staff gradeson the other. As far as it is material for this case, the two followingitems may be noted:
(a) Officers of the staffgrades
(fc>) Officers in Schools/EducationalInstitutes not fallinginto the category ofstaff officers
Powers delegated(g) Vacation of posts
(f) Issue of noticesregarding vacationof posts
To whom
Secretary/Addl. Secretary
Secretary/Addl. Secretary,Heads of Departments aridRegional Director ofEducation.
Mr. H. L. de Silva submitted that P43 should now be read inconjunction with 1R13. which is a circular dated 26.3.1982 issued bythe Secretary, Public Administration. The expression "Staff officer" isre-defined here to mean a public officer whose salary is Rs. 13,800 orover and entitled to yearly increments of Rs. 480 and over. Theevidence of Mr. Rupasinghe, Regional Director called by the petitionerto the effect that having regard to this circular the 1st respondentcould not be regarded as a Staff Officer (vide p. 99, Evidence). If thisposition is correct, a Regional Director could have dealt with a case ofvacation of post of an officer like the 1 st respondent. Vacation of postas we know is one way in which the relationship between the publicofficer and the State can be determined. It certainly has affinities witha case of resignation and repudiation of the contract of service and thefactual situation giving rise to it may include both the abovecircumstances. These circumstances are inextricably mixed and areoften dealt with together. The relevant provisions would be referred tolater.
Item (b) in P43 was amended by P44 dated 8th June 1981 to readthat it is only the Secretary and not the Additional Secretary whoshould exercise that power. Then comes P45 dated 24th December1981, which is an interesting document. It has not been issued by theEducation Services Committee but by the Ministry of Education,
Sri Lanka Law Reports
(1986} 1 SriL.R.
although with the concurrence of the Education Services Committee.
In fact it has been signed not even by the Secretary. Education, but onhis behalf, by the Additional Secretary for Secretary, Education. As faras one could gather, there had been a great deal of doubt anduncertainty relating to the administration and disciplinary control overpublic officers, and more particularly as to the proper authority whoshould exercise those powers. P45 itself, after referring to thedelegations in.P43 and P44. frankly mentions this confusion anddoubt as follows:
"As it is not specifically stated who the proper authorities areregafdi'ng the other establishment matters relating to the aforesaidcategories of employees, it is likely that a confused state may ariseand as such I wish to state as follows the due position regarding thatfor.your information."
Among.the matters dealt with in P45 are retirements andresignations – the very matter with which we are concerned. Itstates-'ll 1) Retirements/Resignations: Will be on the recommendation of; the Ministry. Approval is by the Committee.
(12) Interdiction/Sending on compulsory leave/lssue of notice re■ ■■■ ■ vacation of post, withdrawal of notice of vacation of posts:These powers have been delegated to the' Ministry/Departments/Regional Offices (vide circular No.
■ ESC 1/34 of 18.1 1.80). However an appeal may be madeto the Committee."
To go back to the constitutional provisions, it would be noted thatthe-provision of Article 55 under which the Public Service Commissionand the Education-Services Committee derive their authority relates to"the appointment, transfer,^dismissal and disciplinary control of publicofficers". Neither retirement nor resignation is specifically dealt withhere. When Mr. Choksy was-questioned on this, he said that thoseitems could come under the words "disciplinary control". Let usassume for the purpose of argument that this be so.
P45 highlights the state of uncertainty as-to the proper authoritywho,could deal with a letter of resignation..P45 which has sought toclarify this-, matter is as already noted not a rule, regulation,-order,directive or notification of the Cabinet or of the Public Service
SCAbeywickrema v,, Pa thirana (Waoasundera, J.)
Commission or even of the Educational Services Committee.. It,is just aletter of information issued from the. Ministry of Education and signedby the Additional Secretary for the Secretary, Education. If it isindicative, of anything, it certainly shows that, i;esignation andretirement have not been dealt with in the previous.directipns on whichMr. Choksy had also relied, or the position about .it has not been clear.
At this stage it is also necessary to look at the Establishment Codeto–Which – Mr. Choksy invited5 odr. attention. The material portion issection 4 of Chapter V and is as follows
"4- Resignation •
4 :. .1.. -an g f i i c e r, – m ay -. sub mit , h i;s.:. re-si g n at i o n: > fro nr ■ ti i s'appointment^with. one month-'s-:notice -torthe' Appoihting.Authority thijoughj the-:H.ead of: his:.Department' or -onpayment of a month's .salary-in lieu.there.of
'4:2' If the 'Appointing Authority refuses" to "accept 'hfsresignation andlhe officer cebses' to'report for duty. Keshould-be deemed td.'have vacated'his' post as,’from thedate ofsuclrcessatipn.
4:3 On,receipt iQf. the .resignation of a, pensionable, officer, the-.Head of ; his Department, should inform, the. officer in…writing, that if he resigns fr-om.-his appointment.he will
. . forfeit ail claims to a pension, gratuity–and all other. .benefits arising from his. service prior to>: resignation,,should he afterwards succeed.in obtaining-re-employmentunder Government.
4-:3:l He should also be. informed, that if- resignation. is. accepted, any.application to withdraw it later, will notbe considered. •'.L'r :-
4:3:2 An acknowledgement to the effect that he has beeninformed in these terms’should be obtained from him inwriting.•’
4:4 When forwarding a resignation for acceptance by-theAppointing Authority where the H’ead of’ Department is" not the-Appointing Authority; the Head of' Departmentshould .state that he has complied With the requirementsof sub-section 4:3.'''
4 :5 Acceptance of resignation should be notified in writing tothe officer concerned.
Sri Lanka Law Reports
[19861 1 SnL.R.
4:6 An officer who resigns, forfeits all claims and benefitsarising from his services prior to resignation. However, ifan officer who resigned, rejoined service, the period ofservice prior to resignation will be considered for pensionpurposes only, provided his work and conduct have beensatisfactory."
These provisions may be accepted as being made under Article55(4) of the Constitution, but nevertheless I shall show later that theydo not qualify to be regarded as statute law, whether as primary orsubordinate legislation. In spite of what Mr. Choksy said and thoughsection 4:4 may be in his favour, the contents of sections 4:1,4:2and 4:3 may be noted. First, this permits a public officer to resign hisappointment with one month's notice to the Appointing Authoritythrough the Head of his Department. Alternatively he can resign by thepayment of a month's salary in lieu of the above notice. In the presentcase the required notice was not given. As regards the payment of amonth's salary, the 1 st respondent agreed to forego the salary he hadearned for the period of 21 days in April, and for reasons best knownto the Regional Director he waived the required month's salary. Now itseems to me that the acceptance of a payment on behalf of the Stateis a revenue and a routine administrative matter. There is nothing in myview, to prevent a Head of Department like the Regional Director fromdealing with it. Such an act would fall within the ambit of his functions.If he had made a mistake and the State had suffered by his negligence,the Regional Director would be personally liable for the loss for whichhe could be surcharged. This would not affect the validity of his act. Infact both sections 4:1 and 4:2 and also 4:3 show that the Head ofDepartment has been brought in as a major element in theadministrative process relating to the resignation of office by an officerand he has full authority to process it. In fact section 4:3 shows thatthe Regional Director acts as the mouthpiece of the Government inrespect of certain matters in this regard.
Section 4:2 read with section 7 deals with vacation of post. In thecontext it provides for certain developments in the resignationprocess. There could be no doubt that the power of ordering avacation of office notice would be with the Head of the Department.Notwithstanding the provisions of section 4.4 which states that theacceptance of the letter of resignation should be by the appointingauthority, the provisions I have referred to show that when theresignation process is short circuited by certain circumstances dealt
SCAbeywickrema v. Pathirana (Wanasundera. J.j
under sections 4:1 or 4:2 the Regional Director is vested wijftaSctualauthority to take decisions and make orders. Even outstde tfres©circumstances he is generally regarded by these provisions as thepublic officer who processes the resignation and through whom theappointing authority would be dealing. The Regional Director is animportant officer and plays a pivotal role in the process. Theseconsiderations are of vital importance when we have to consider thequestions whether the Regional Director had ostensible authority inthis matter or regarding acquiescence or ratification of his acts by theappointing authority or the State.
The amount of confusion and doubt about the proper authority whocould exercise these various functions and powers is best seen in thepractices and acts of the Education Services-Commission, the Ministryof Education, and by the Regional Directors wpen dealing withresignations. Unfortunately up to date the State has avoided makingany definitive pronouncement about the practices that had hithertoprevailed or about the status of the 1st respondent apart from thelegal submissions made by Attorney-General's representative whoappeared as amicus.
There is clearest evidence that at least in seven or eightinstances-that is the entire evidence pro and contra on thismatter-Regional Directors have accepted letters of resignationof teachers. This would have been clearly wrong according to thesubmissions of the petitioner. An attempt was made by the petitionerto show that those were irregular acts on the part of some errantpublic officials and that the Education Services Committee had notbeen negligent about its rights, for when it had become aware of sucha transgression it had sought to check the irregularity and had evensharply pulled up by the officer concerned. Mr. Choksy points to thecorrespondence between the Regional Director and the Ministry ofEducation in regard to the resignation of T. D. Stanislaus, a trainingteacher, as evidence of this. This of course is an isolated instance andthe only one. And I find that even Stanislaus' case does not advanceMr. Choksy’s contention. As Mr. H. L. de Silva pointed out, thecontention in Stanislaus' case was not whether or not the RegionalDirector was the proper authority to accept the resignation butwhether it was proper for him to have accepted the resignation ofStanislaus without the approval of the higher authorities whenStanislaus had certain outstanding obligations which should have beense'cured bv a bond. The authorities had however failed to obtain such a
7 70
Sri Lanka Law Reports
(I986j / Sn L R
bond' fronvhim. This Correspondence is as follows .By 1R14 dated. 19.03 1980 the Regional Director. Gaiie. had accepted theresignation of.Mr Siamslaus. The Secretary. Education had beeninformed of this The Secretary. Education, by P48 dated 8th-September 1980 to the Regional Director has stated. "Please submita report regarding this immediately" Then there is a gap on thecorrespondence and one year later, by P47 dated 05 08 81. theSecretary. Education, writes again to the Regional Director on thismatter.. It refers to the bond. The material portion of the letter is asfollows;
"On applying for study leave he is required to sign a Bond to serve the Government for‘.five years. Before his resignation is accepted please inform whether the conditions ofthe bond have been fulfilled. Please send me a copy of the Bond.
2. It has been pointed out earlier that these are duties ol the Education Sendees■ Committee."
One wonders what Secretary. Education, meant by the ambiguousstatement. "Before his resignation is accepted please inform whetherthe conditions of the bond have been fulfilled " Does not thisstatement imply that the Regional Director could have accepted such. a resignation but for the special circumstances attending this case.
'• By letter P49 dated 12.8.81. the Regional Director sent hisexplanation that due to some oversight or negligence in his office or inthe Ministry, the Bond had not been obtained. The Secretary.Education's reply is contained in P46 dated 30.12 81 The materialt portion of the letter reads as follows:
"As you have accepted the resignation of Mr. Stanislaus l wish to inform you tosubmit full particulars regarding that to Secretary E.S.C. and obtain the coveringapproval of E.S.C. regarding the acceptance of the resignation
2. You are hereby informed to explain as to why the amount recoverable fromMr. Stanislaus on account of his Bond should not be recovered from you "
The Regional Director's explanation is contained in P54 dated’29.3.82 where he once again reiterated certain circumstances inextenuation.:
The tenor of this correspondence appears to me to.support Mr, deSilva's Contention that it does not highlight the'•issue as to theincompetence of a Regional Director accepting a.letter of resignationbut-that he should not have accepted the resignation-in. .that case as-there was an outstanding bond. Further, this is fortified by the view■ that .even in the. circumstances of this case the Regional Director's
SCAbeywickrema v. Pathkana (Wanasundera. J.) . .
acceptance of the resignation could have been ratified' by theEducation Services Committee. One knows that in law the relationalprincipal and agent could be created ex post facto beatification. If on-'the other' hand the authorities were taking a hard lin'e',bn this matter, .then logically they should have disowned the Regional Director's act,declared that act null and void and punished him for- arrogating tohimself powers of higher authorities. This correspondence howeverdid not affect Mr. Stanislaus' resignation which as- to_-.be expedtedcontinued to be operative with everyone accepting.;.i.t as anaccomplished fact."d
As against this we have at least seven or eight clear instance's ■spanning a period from August 1980 to January 1984 from widelydifferent areas such as Colombo, Kandy, Galle, Kalutara and Tangalle,where the Regional Directors have considered it proper to accept the'.';resignations of teachers without demur from either the EducationServices Committee or the Ministry. These acts of the RegionalDirectors according to the submissions of petitioner are again bothvoid and illegal and they are subsequent to the establishment of jtheEducation Services Committee. But neither the Education ServicesCommittee nor the Ministry or the Government has at any timethought it necessary to raise any question about the validity of't-he'actsof those Regional Directors or to take action against them. In August1 980 the Acting Regional Director, Galle, accepted the resignation ofMr. Ginige, an Assistant Teacher-1 R1 6. In August 1 982 the RegionalDirector, Tangalle, accepted the resignation of Liyanapathirana, a"teacher-1R32. In September 1982 again the Regional Director,Tangalle, accepted the resignation of Weerawardhana, an AssistantTeacher-1 R30. In October 1982 the Regional Director, Colombo,accepted the resignation of Nanayakkara, an Assistant GraduateTeacher-1 R34. In November 1982 the Regional Director, Kalutara,Mr. Rupasinghe accepted the resignation of Divitotahena. a Graduate■Assistant Teacher-1 R26. Strangely enough it is this gentleman whowa's called as a witness by the petitioner to establish the wrongfulnessof. such-.an act and to speak to the non-existence of such a practice. InJuly 1983-the Regional Director, Kalutara, accepted the resignation otS. K-. Ranjith'-Ananda, ;an Assistant Teacher- 1 R23. '■ In .‘December1983 the Regional-Director, Galle, had accepted the resignation of■Upasena.han’–Assistant Teacher-1 R1 8. And in January 1984 theRegional Director, Kandy, had accepted the resignation of KandanaArachchi, an Assistant Teacher- 1R28.
Sri Lanka Law Reports
[1986] 1 Sri L. R.
As-'agai'nst this incontrovertible evidence no counter material has■been placed by the petitioner to establish a different course ofpractice. The evidence of the witness called on behalf of the petitioneron this aspect of the case is more unsatisfactory. In fact there seemsto be some justification in Mr. H. L. de Silva’s statement that nomaterial whatsoever has been placed before the Election Judge toshow that the Education Services Committee had at any timeexercised this power even in a single instance. Even in the presentcase, as stated earlier, a copy of the Regional Director's letteraccepting the resignation had been sent to the Ministry of Education,so that the authorities were fully aware of what was happening.
I have earlier referred to the petitioner's letter of resignation dated12th April 1983 and its acceptance by the Regional Director, Galle.There are also a number of other circumstances surrounding this actof resignation indicating the conduct of the 1 st respondent on the onehand and the State on the other, which helps to throw light on thepresent status of the 1st respondent which is the matter in issue inthis case.
The letter of resignation P32 of 12th April 1983 clearly indicatedthat the 1st respondent was resigning to contest the election of thevacant Akmeemana seat. When the 1st respondent met the RegionalDirector, Galle, in the office on the 21st April, i.e. the day before thenomination date, he had again indicated that he was leaving publicoffice in order to be eligible to contest the Parliamentary election. Hisintention of leaving the public service was left in no doubt; a little priorto this, he had handed over his duties, the keys and an equipment toMr. Jananada, the Acting Principal, who by letter P39 of 12th April1983 had informed the Regional Director of this. A copy of theacceptance of his resignation had also been sent to the ActingPrincipal. The 1st respondent, as we all know, found his way toParliament and never went back to the school. He carried on a veryactive and public political campaign to win his election. Such activitycould not have been counternanced if he remained a teacher.Sometime later a permanent Principal as successor to the 1strespondent had been appointed.
If the position is that the 1st respondent's resignation was invalidand he was not on leave, action should have been taken against himfor vacation of office as a public servant due to his non attendance atthe place of work. The Establishment Code requires this to be done
SCAbeywickrema v. Pathirana(Wanasundera, J.j 173
and every public officer knows that it is usually done as':a-matter ofroutine. If a Principal of a school absents himself, it would be.istrange if■his absence is not noticed and felt as it is bound to lead to'a disruption,in the running of the school. No disciplinary action has been taken’against him for taking part in politics. The 1 st respondent had not beenpaid his salary since March .1983, but on the other hand theauthorities had demanded and recovered from the 1 st- respondent therepayment of a sum of Rs. 2,395 as Credit Council-dues consequent'on his resignation-P42. All the circumstances detailed abovepertaining to the 1st respondent's resignation, somecontemporaneous and others surrounding it, are'in their.totalityrelevant to show the nature, character and the legal effect of the 1 strespondent's action in seeking to resign from the public service prior ,to-the nomination day.
The Attorney-General was apparently given notice of this petition ofappeal in terms of the provisions of section 82A(3) of the ElectionsOrder in Council. But he was not present when this appeal first cameup for hearing. Then in the course of the hearing we found thatimportant questions of public law, particularly those relating to thestatus of public officers and the nature of the reliefs they could obtainunder the present Constitution and the interpretation of certainprovisions of the Establishment Code relating to resignation andvacation of office seemed to be in issue; we decided that the mattershould go before a collective court and we ourselves noticed theAttorney-General to appear as amicus. While the DeputySolicitor-General addressed us as amicus and made representationson the law, he declined to deal with the facts and up to now neitherthe Education Services Committee nor the State has been prepared tomake a categorical pronouncement regarding the status and positionof the 1st respondent at the material times. They have certainly notclaimed him as a public officer. In view of this situation what indeed is'the use of an outsider trying to establish a relationship between twoparties in which the only party who can make a pronouncement is notprepared to commit itself? No court can be justified in shutting its eyesto the course of conduct of the, State and the 1st respondent in thismatter where the 1st respondent had been regarded for ajl purposesas no longer a public, officer. These are matters of general publicknowledge. -Our decision-therefore should not be a flight from reality. It. should, be.'wedded to facts. Based on some academic theory if we-were to hold that the 1st respondent, in spite of the separation from
Sri LankaLaw Reports
[1986) I SriL 8.
his office in every practical way. continued to be a public officer alterthe 21‘st-April, we would surejy be flying in the face of both facts andcommonsense.
I now turn to'what I consider to be the first of the two main issues inthis appeal. Even assuming that acceptance, is necessary to make aresignation effective — it is unnecessary to decide this question now -has there been in this case in the eye of the law a sufficientacceptance of the letter of resignation by the State? Mr. H. L. deSilva's position is succinctly recorded by us in the order we had maderesignation. Elaborating this he stated that the acceptance of theresignation by the Regional Director was lawful and valid. Mr. deSilva's- position is succinctly recorded by us in the order we had madewhen this matter first came before us. He contended-
"… that the delegation of the powers referred to in Article 58(1)may either be express or implied and that in the absense of expressdelegation where the Regional Director had under colour of office,been in the habit of accepting letters of resignation from PublicOfficers working under him and where such acceptance had notbeen rejected or disowned by the Ministry of the Department ofEducation, but had been acquiesced in. then the conclusion may. inthe circumstances be drawn, that there had been implied delegationof the powers to the Regional Director and that the RegionalDirector bad implied authority to accept the letter of resignation.
In our judgment the burden of establishing that the powersreferred to in Article 58(1) of the Constitution had not beenexpressly delegated to the Regional Director of Education, Galle,rests on the petitioner and if he established that there was noexpress delegation of the relevant powers to the Regional Director,then the 1st respondent may lead evidence to establish that therehad been an implied delegation of the powers referred to in Article58(1) by the Public Service Commission or the Committee thereofto the Regional Director, so as to make the exercise of such powerby the Regional Director, valid and binding."
(Vide 1984 (1) S.L.R. at p.2T8.)
Mr. Choksy submitted that the Regional Director had not beenvested with authority to accept a resignation and this power lay onlywith the Education Services Committee. Accordingly the,, purportedacceptance of the resignation by the Regional, Director was" without'
SCAbeywickrema v. Pathirana (Wanasundera, J.)175
effect and a nullity. The parties were locked in issue on thiS 'arnongother matters. I find that the evidence of a practice of letters beingaccepted by Regional .Directors has been introduced into the record;before the Election Judge and was argued before us. Mr. de Silva took
us painstakingly through this oral and documentary^material. As fares Icould gather, there was no deviation from this'.position in Mr. deSilva's address, to us. The legal issues then that, arise from thismaterial lie directly in the path'leading to a decision'in this'case and itis not possible to by-pass them in reaching a just decision. Incidentallythe fact that a person who has performed an act does not have actual;authority does not foreclose further dicussion of this matter. There area number of intricate legal principles that will have to be considered inthis regard.
The main issue in this regard is the question of ultra vires in theRegional Director purporting to accept the resignation. An examinationof the relevant Idw on this point is now called for. Let me begin with anauthoritative text. Professor S. A. de Smith's "Judicial Review ofAdministrative Action" (4th Edn.). where in Chapter 3 he had analysedthe topic of ultra vires in public law with particular reference to the kindof problem we are dealing with. He begins by saying that the term'ultra vires' first came to be used in relation to municipal corporations,then to the other new types of local government authorities, and finallyto the Crown and its servants and even to inferior judicial bodies. Inrelation to Crown servants, he gives examples, which are set outbelow, of cases of implied, apparent and ostensible authority of suchpersons or agents. He asks the question whether the ultra viresdoctrine can be modified by conduct or inertia of a public body or theacts of its servants or agents and by way of answer states that theprivate law analogies are potentially relevant in dealing with thismatter. The private law analogies are obviously those of agencywhose terminology he adopts and may include the developments that'have taken place’in' Company law in relation to'agency. A briefreference to such developments will also be made later.
• These’matters are discussed by Professor de Smith under theheading "Vires, Agency and Estoppel" at page 100. It is as follows
."Can the. operation of'the ultra vires doctrine be modified by theconducror.'.inertia of a public body, or the acts of its servants or:ageVits? Private law analogies-are potentially relevant.
Sri Lanka Law Reports
11986] 1 SnL R
'(1 )•' X may bind himself by deed or by contract to take aparticular course of action, or not to-do something which he would' .otherwise be‘.entitled to do.
X's- agent, Z, may bind X to perform a contract with Yalthough Z has acted without express authority from X It is enoughthat Z has implied or apparent (ostensible) authority, or possibly that Zwas acting in the course of his 'usual' authority
X permits Y to do something (or X refrains from objectingto something done by Y) which Y is not legally entitled to do. Becauseof waiver, acquiescence or delay, X may have forfeited his right toassert that Y is not legally entitled so to act.
X, or X's servant or ageni. makes a representation of factor gives an undertaking or assurance to Y on which Y is intended torely and on which Y does rely to his detriment X may then beestopped from denying the truth of the statement or from going backon the undertaking.
It is by no means clear how far some ol these principles areapplicable to public law situations Several relevant cases areinadequately reasoned or appear to conflict with one another-inparticular, hard cases have been allowed to make dubious law-andany short statement of the existing legal position is bound to betentative Authoritative clarification from the House of Lords isawaited
A public body with limited powers cannot bind itself to actulna vires: and if it purports to do so it can repudiate nsundertaking, for it cannot extend its powers by creating anestoppel Nor, in general, can a body entrusted with dutiesand discretionary powers for the public benefit effectivelyletter itself in the discharge of us dunes (including duties toexercise us powers free from extraneous impediments)
It is thought that the general rules of agency apply'in publiclaw, except that an agent {a) cannot bind his principal to dowhai is ulna vires and probably (b) cannot bind his principalby exceeding his own authority if that authority iscircumscribed by statute, but the existing – case law onagency in public law is equivocal."
SCAbeywickrema v. Pathirana (Wahas'undera, J.) -177
As stated .earlier, problems of '-.ultra vires and agency a re presentedin a similar manner in the realm of agency and Company law.'Principlesanalogous to what de Smith has stated have been developed"in'th.e.law of agency and company law/especially under the well known-rule',in Royal British Bank v. Turquand, (36) Garner-Administrative LaA/ (4th<.Edn.)-stgtes at page 302, that the effect of the rul.6 in Turquand'scase (supra) applies-equally to local authorities.'It .Is therefore nofsurprising that Professor de Smith's analysis reflects-.-some of these-principles;
Accordingly the main principles that can be gathered from judicialdecision in these branches of comparative law may be noted now. Theprinciples relating to agency in regard to companies and corporate-institutions ( as against individuals) had seen great developmentbeginning with Turquand's case (supra). The basic principles which byanalogy have relevance to the present situation are as follows:- Therule of "indoor management" or the rule in, Turquand's case (supra) is-to the effect that a person dealing in good faith with a company mayassume that acts within its constitution and rules have been dulyperformed and he is not bound to inquire whether or not such internalmanagement has been regular. As the case law shows, the rule neednot be confined to outsiders or third parties. Vide Holy-Hutchinson v.Brayhead Ltd. (37) affirmed by the Court of Appeal. Also seePennington's Company Law (3rd Ed.) p. 1 23. The full scope of the ruleis that a company or corporation would be bound by the acts of fits"agents" provided that the transaction, consistent with the articles,comes within the scope of the authority which they could or mighthave had. Sometimes the area concerned has been described as"potential" authority. Basically it includes two main types of situations,namely (1) where authority might have been conferred though in fact ithas not been so conferred, and (2) where authority had beenconferred but subject to conditions which relate to indoormanagement and such conditions remain unfulfilled.
Every officer and person associated with the activities of a companyhas the ostensible authority to exercise all the powers necessary forthe due performance of his primary functions. This is commonlydescribed, as the usual authority, when one deals with such a personon this basis and he sues the company he could succeed oh the basisof "usual authority", unless it is negatived b.y the articles and it is notnegatived iL-under the articles power could have been so conferred.
178Sri, Lanka Law Reports[ 1986] 1 Sri L. R.
What is the position when we deal with a case concerning theexercise;of. functions other than primary functions? There arepassages-in Houghton & Co. v. Northward Lowe and Wills Ltd. (38).'Kreditbank Cassel v. Schenkens Ltd. (39) and BritishJhomson-Houston Co.. Ltd. v. Federated European Bank Ltd. (40)which support the view that the Turquand principle would apply evento such situations, provided there is actual knowledge of theArticles.That is to say that he was aware that such authority couldHave been delegated under the Articles. In the'present case it wouldbe noted that such an exercise was possible and such authority had infact been- exercised. When we consider the case of a supposedexercise of a power of delegation in such situations, it would also benecessary to find out whether the supposed exercise of the delegationwould have been normal and regular in the circumstances of theparticular case.
There is also a third situation, namely the exercise of authority by a■ de facto officer. If a company represents that a person holds office inthe company, it cannot escape liability by appealing to the doctrine ofconstructive notice and showing that he could not have beenappointed. It is one thing for the company to say that the powers of ade facto officer are limited just as in the case of de jure directors, but itis another thing to say that they have no powers at all. The doctrine ofconstructive notice as modified by the Turquand rule restricts thepower of a de facto officer to bind the company in the same way as itrestricts the power of persons duly appointed but no further. Theappointment or its absence is really irrelevant. Vide Mahony v. EastHolyford Mining Co. (41) where the judges proceeded on the basisthat it is unnecessary to invoke the rule in Turquand's case (supra) inregard to the appointment, though it was applicable in deciding thescope of the powers of the directors concerned. The doctrine ofconstructive notice as modified by the Turquand rule applies both tothe possibility of appointment and the possibility of having thenecessary powers, if appointed. In Mahony's case (supra) LordPenzance said that although the directors and the secretary hadusurped those offices, the bank was entitled to assume they werevalidly appointed if in conformity with the memorandum and articlesthey could have been validly appointed. In Re County Life AssuranceCo.. Ltd. (42), Gifford, L. J. stated that a company is bound by what
SCAbeywickrema v. Pathirana;(Warias'urdera', J.)
takes place in. the usual course of business with a third party, wherethe third party deals bona fide with persons who are de/acfpdir.gctorsand who, so far as they could tell, might have been de jure-dkecXpts-..-: .,
The. extent to.which the Turquand .principle hag'been pushedforward can be seen, from the Court of Appeal decision in Freemanand Lockyer v. Buckhurst Park Properties (Mang:al)-.lltd. (43). DiplockL.J. said:. ■
"If in the case’of a company the board of directors who have-actual authority under the memorandum and articles of associationto manage the company's business permit an agent to act- in themanagement or conduct of the company's busineiss, they therebyrepresent to all persons dealing with such agent that he -hasauthority to enter on behalf, of the corporation into contracts of a• – kind which an agent authorised to do acts of the kind which he is in
fact, permitted to do usually enters into in the ordinary course ofsuch business. The making of such a representation is itseif ah actof management of the company's business. Prima facie it falls'within the 'actual' authority of the board of trustees and unless itsmemorandum or articles of the company either make such acontract ultra vires the company or prohibit the delegation of suchauthority to the agent, the company is estopped from denying toanyone who has entered into a contract with the agent in relianceupon such 'apparent' authority that the agent had authority tocontract on behalf of the company."
This case was followed in Hely-Hutchinson v. Brayt ?ad Ltd. {supra)mentioned earlier.
The examination of the legal position in other branches of the lawnot wholly unconnected with the situation we are dealing with may byway of analogy be of some help in analysing the case before us.Professor Wade has said in a chapter under "Delegation"- •
"An element which is essential to the lawful exercise of power isthat it should be exercised by the authority upon whom it isconferred, and by no one else. The principle is strictly applied, evenwhere it causes administrative inconvenience, except in caseswhere it may reasonably be inferred that the power was intended tobe delegable(Emphasis by me) Wade,..Administrative Law (5thEd.) P'L'3.1-9.'
180Sri Lanka Law Reports[1986] I Sri L. R.
De Smith is prepared to concede that the general rules of agencycould a'pply in this situation. He has made two reservations. First, hestates that an agent cannot bind his principal to do what is ultra vires.Second, he states with some hesitation that an agent cannot bind hisprincipal by exceeding his own authority if that authority iscircumscribed by statute. Two matters stated by de Smith may haveparticular relevance to the problem we are faced with. In a foot note tothe last item (2) .of the quotation at page 100 of his work, de Smithhas stated:
"The important leading case, Alt. Gen for Ceylon v. Silva (supra)involved an erroneous representation by a Crown servant as to thescope of his own authority. It is not clear from the Privy Council'sjudgment whether the Crown had held him out as possessing thenecessary authority (which was, however, limited by statute); orindeed whether the doctrine of usual' authority has any applicationat all in public law, see Western Fish Products Ltd. v. Penwith D.C.(44). And see R. v. Home Secretary, ex p. Choudhary (45) (HomeSecretary not bound by leave to enter granted by immigration officerinconsistently with the Act or immigration rules; but see R. v. HomeSecretary ex p. Ram (46) (leave invalid when immigrant ought tohave disclosed to officer material change of circumstances)."
De Smith also refers to another development in this branch of the law.He states:
"However, there is a growing body of authority, attributable inlarge part to the efforts of Lord Denning, to the effect that'in somecircumstances when public bodies and officers, in their dealingswith a citizen, take it upon themselves to assume authority on amatter concerning him, the citizen is entitled to rely on their havingthe authority that they have asserted if he cannot reasonably beexpected to know the limits of that authority; arid he should not berequired to suffer for his reliance if they lack the necessary authority.
In this connection de Smith refers to Lord Denning's judgments inRobertson v. Minister of Pensions (47) and Falmouth BoatConstruction Co. v. Howell (48).
SCAbeywickrema v. Pathirana (Wanasundera. J.j. .181
Let me therefore approach this matter then in terms of ;the carefuland cautious’statements enunciated by de Smith without-resort joany wider principles. The first principle is that a public body'vyithlimited powers cannot bind itself to act ultra vires and ah agent cannot'. .bind his principal by doing anything ultra vires the principal. In so far qsthe present case is concerned, there is no such, problem. It is thepetitioner's whole case that the Education Services Committee’hasbeen vested with the power of accepting letters of resignation, so that,both the issues of the principal acting ultra vires and the agent trying toexceed the authority of the principal does not arise for considerationhere.,
l he second principle enunciated by de Smith has two aspects. First,an agent of a public, institution cannot bind his principal by exceedinghis own authority if that authority is circumscribed by statute. This isthe principle in Attorney-General v. Silva (supra). Second, he asks thequestion whether the principal would have been bound even in such acase if he held him out as possessing the necessary authority. This isapparently the principle of "ostensible authority" referred to earlier inthis report in the law of agency.
Let me even assume that we are here dealing with the case of a defacto agent to whom a delegation could have been made. To reiterate,the Education Services Committee was empowered to delegate itspowers to any public officer. The next question is whether there areany provisions of a "statutory nature" which imposes limitations on thedelegated authority. Undoubtedly there are a number of orders anddirectives relevant to this matter, but they would be relevant only ifthey are -statutory provisions and such provisions impose limitations.Administrative instructions and orders would not suffice for this- purpose.
To answer this second question we have to determine the natureand character of the material that regulate and 'govern the affairs ofthe public service and public officers. In de Zoysa y. The PublicServices Commission (supra) the Supreme Court dealt with thisidentical question, namely 'the status of rules made by the PublicService Commission, under the Soulbury Constitution. Justice H. N. G.Fernando in a'Closely reasoned judgment held that the rules made bythe Public Service Commission could not be dignified to the status ofsubordinate legislation and that they were in effect merely
182Sri Lanka Law Reports[1986] 1 Sri L. R.
Administrative Directions and Instructions. This case was followedwith approval by the Supreme Court in De Alwis v. De Silva, (supra)•where it was.held that the Manual of Procedure did not have the statusand character of a law', primary or subordinate.
Mr. Chosky sought to distinguish these cases by relying on the■ provisions of Article'55(4); which he stated did not have a counterpartin the earlier'Constitutions. Mr. Azeez on the other hand hesitated toclarrmi statutory status for the Establishment Code, but neverthelessargued that it had a statutory base or had the underpinnings ofstatutory provisions. It may however be pointed out that the principaldocuments we have to consider. P 43. P 44 and P 45 are notdocuments made or issued by the Public Service Commission underArticle 55(4). Only the Establishment Code at the most may qualify tocome within those provisions.
The provisions of Chapter IX of the present Constitution, followingthe thinking of the 1972 Constitution, displays a radical departure inmany respects from what obtained prior to 1972. Chapter IX could beproperly understood only in the light of the historical background tothese provisions and the mischief it has sought to remedy.
Every person acquainted with the post-independence period of ourhistory,especially the constitutional and legal issues that cropped upduring that period, would know how the actions of the Governmentand the Public Service Commission dealing with practically everyaspect of their control over public officers were challenged and takento the courts. A stage came when the Government found itselfpractically hamstrung by injunctions and court orders and not given afree hand to run the public service and thereby the administration asefficiently as it would wish. The 1972 'reforms came undoubtedly as areaction to this. The thinking behind the framers of the Constitutionwas that the public service must be made the exclusive domain of theExecutive without interference from the courts. Vide section 106.
The present Constitution has only given refinement to that thinking.The present Article 55(5), which is in effect a preclusive clause of thegreatest coverage, appears to shut the courts out from this domainexcept for a violation of a fundamental right. While it is true that Article55(4) is a new provision, it dovetails into'the scheme and is intended-to give the Cabinet the widest authority and flexibility in regulating the
sc- Abeywickrema v.'Bathtrana .(.Wanasundera/j})- .183
public service. Such provisions have to be flexibleand less fbtmaj thanlegislation. They also do not- lend' themselves to formal.regulation-because they, as the Privy Cooncil said'. "are matters of;rule whichjare.of infinite variety and can be changed from time to time".
If the provisions and procedures formulated'by the Cabinet had 'thedignity of legislation, whether primary or subordinate, then it vv'oilidhave been difficult to justify the'preclusive', provision contained ''inArticle 55(5) and further it is doubtful whether that preclusiveprovision could have achieved the desired result, since irmay not havebeen adequate to shut out the courts when the violation of statutoryprovisions are in issue.'
The reasoning of Justice H. N. G. Fernando in de Zoysa's case(supra), which is unexceptional, seems also to be equally valid in thepresent context. A distinction has to be borne in mind 'between' subordinate legislation, which may consist in the form of rules andregulations, and mere administrative instructions and directions. If weexamine the provisions of the Constitution we find that it has by a-careful use of the language maintained this distinction. For 'example,under Article 1 36 the Rule Making Committee of the Supreme Court isempowered to make rules. Similarly the Judicial Service Commissionis empowered to make rules under Article 1 12(8). But Article 55(4)does not speak of rules. What the Cabinet is empowered to do underthis provision is to "provide for and determine all matters relating topublic officers". Such matters are itemised as-
the formulation of schemes of recruitment;
Code of Conduct for public officers;
principles to be followed-in making promotions and transfers;
procedure for the exercise and delegation of the powers ofappointment, transfer, etc.
■ All these matters have the characteristics of guide lines rather thanof rules or regulations. We do find sometimes certain provisionswhich may not fall within the category of primary or subordinatelegislation -being given the, legal effect of rules or -regulations byexpress statement to that effect. There is no such provision in respectof Article 55 (4). Further rules and regulations are required by law tobe Gazetted.,-Many rules.gnd regulations have to be tabled inParliament for Parliamentary sanction. There are no such requirements’
• m this..case. All this is indicative of the fact they were intended tobe
Sri Lanka Law Reports
[1986] 1 Sri L. R.
administrative procedures in the nature of mere internal rules andguidelines giving the executive the necessary latitude and flexibility toadminister the public service and to adjust them to the dynamic needsof the administration. As a corollary to this, they have to benon-justiciable and placed beyond the reach of the courts.
• ; The position in India under the corresponding provisions in thatConstitution is most interesting. The relevant Articles in the IndianConstitution are Articles 309 and 313. Article 309 enables theLegislature to legislate in regard to recruitment and conditions ofservice of persons appointed to the public services in connection withthe affairs of the Union of any State. The proviso states that untilprovision is made by an appropriate Legislature, rules on thosematters may be laid down by the Executive. The rule-making power ofGovernment .is identical with that of the Legislature. Article 313 is atransitional provision and is to the effect that until provision is madeunder the Constitution, all laws in force immediately before thecommencement of the constitution and applicable to any publicservice or any post shall continue in force in so far as consistent withthe Constitution. Laws in force in this context would include all rulesand regulations and all Government notifications. These were givenstatutory force by section 96B(4) of the Government of India Act1919. While such provisions are expressly given statutory force bythese constitutional provisions, they are however not made justiciable.They are in fact regarded as Execution Instructions. Sambandan v. Ft.T. S., 1958 A.I.R. Madras 243. The scope of these provisions werediscussed by the Privy Council before Independence in the trilogy ofcases -Ft. Venkata Ftao v. Secretary of State for India (supra) (18)Rangachari v. Secretary of State for India (supra) and I. M. Lall's case(supra).
In Venkata Rao's case (supra) the Privy Council gave the followingreasons for their view:-
"1 The rules were manifold in number end most minute inparticularity and were all capable of change. To uphold thecontention of the appellant that an action would lie for anybreach of any of those rules would involve a control by thecourts over Government in the most detailed work ofmanaging its services and such control would cause notmerely inconvenience but confusion,.and
Section 96B makes careful provision for redress of grievances■> ' by administrative processes."
SCAbeywickrema v. Pathirana (Wanasundera, J.j.
The subsequent Indian cases .have'followed the above cases and.-:taken the view that the courts, will only intervene'when the’.conditions'specifically set out in the Constitution: in Articles'310 and 310- areviolated and not otherwise.. Vide Satish Chandra An'and v. Union'.ofIndia. (49) Purshotam Lai Dhingra v. Union of India. (50) and Shyam…La! v. State of U. 'P. (51)
As far as 'our'provisions are concerned, we''too have adequateadministrative procedures for the' redress of grievances. But what ismost significant about the Indian provisions is that notwithstandingthat they can claim to enjoy a statutory status, -all those provisions(except the specific conditions mentioned in the constitutiory itself).',have been regarded as purely administrative rules falling within thedomain of the Executive and are regarded as being beyond the reachof the courts. Therefore'to say that the Indian provisions are,statutoryprovisions – they are actually enacted by the Legisleture andexpressed to be so – is not to the point. What matters is that theyare still treated as pure administrative instructions and procedures and.beyond the peach of the courts.
In my view the provisions of Article 55 (4) are non-statutory innature and Article 55(4) and Article 55(5) are complimentary andsupport each other. Article 55(5) makes the provisions made by thecabinet and executive action consequent thereon also non justiciable.Compared with this, the power of sub-delegation contained in Article58 is even of lesser importance and can in. no quality be regarded asstatutory provisions. In the result I hold that there are' no statutorylimitations on the power of delegation contained in Article 58 and thatihe Regional Director's act meets the second requirementenunciated by de Smith to establish valid agency With this conclusionit necessarily follows that the acceptance of the resignation by theRegional Director is valid. On this ground alone the petition vvould fail.
But one of the main issues m the case and the principle objectiontaken by the 1 st respondent from the outset to this election petition, isthe preclusive nature of Article 55(5) as a bar to the petitioner's case.Considering that it was a matter argued before us, having regard to itsconstitutional jmportance and the fact that it buttresses the finding Ihave-just made, some pronouncement on it is called for here.
186' Sri Lanka Law Reports[ 1986] 1 Sri L. R.
There is no-doubt – and it has been conceded by all counsel thatArticle;5.5'(‘5) is a.preclusive clause. The parties are however dividedon the extent of its coverage. Mr. Chosky's contention is that it cannotshut out the court.when a question of vires is involved. Mr. Azeez wasagain hesitant to-'engage in any general discussion of this provision -' though we had decided to send this appeal before a collective courtmainly on this matter.' to a pointed question by me he conceded thatin view of this provision if would not be open to a third party to canvassa decision of .the administration. Any other answer would have seriousrepercussions qn the administration of the public service and wouldput'the. clock-back .to the position that prevailed prior to 1972,opening the ’internal administration of the public service to the fullscrutiny of .the courts once again.
Even a cursory look at Article 55(5) shows that it goes well beyondthe.usual kind of preclusive clause. Article 55(5) states that no court'or tribunal shall have power or jurisdiction over any order or decision ofthe Cabinet of Ministers, the Public Service Commission, a Committeeof the Public Service commission, or of a public officer in regard to anymatter concerning the appointment, transfer, dismissal or disciplinarycontrol of a public officer. It goes on to state specifically that a court ortribunal cannot-"inquire into, pronounce upon, or in any manner call inquestion any.such order.or decision."
But it is not only in width and range that this preclusive provision isof an exceptional kind. The wording is undoubtedly cast extensivelygoing well beyond the usual type of preclusive clauses which havecome up for decision, but this is also a provision embodied in theConstitution constituting a part of the fundamental law of the countryand relating to the administrative structure of government. InMarrikissoon v. Attorney-General. (52). the Privy Council referred tothis aspect of the matter, but left the matter undecided.
In the U.K. law, the courts have grappled with the problem ofpreclusive clauses and of the vesting of uncontrolled power in atribunal. But this is in ordinary legislation.
The leading case on the subject is. the: well known Anisminic case(supra). The U.K. more than most countries is wedded to the conceptof the rule of law which they feel is protected primarily by the courts.Ouster clauses are naturally abhorrent to the court system whichobtains there. Such clauses are looked at with disfavour and the needfor them is not very much appreciated. There has also been, a large
SCAbeywickrema v. Pathirana (Wanasuridera,%j '187
measure of public support and.Parliamentary acquiescence for suchdecision until the reaction to the Anismiriic'ruling.- In. the resdlfrtfoja U.K.courts have found it possible to virtually entrench''in 'the law the.'principle that'an executive body or tribunal should not;be allowed tp-Jaettlie final judge of the extent of its own power nptw.irhstanding anypreclusive clauses.
While such a principfe has the persuasiveness;, and simplicity oh-afundamental principle, it is one-sided and does not seek to reach anykind of compromise with what may-have been the actual intentions ofParliament. Parliament had also persisted in enacting. preclusive-clauses with the intention of withdrawing certain ;administrative acts ■and decisions from the jurisdiction of .the court in the intere.sts of goodadministration. The cleverness and wisdom' of the'judicialpronouncements lie in their avoiding any confrontation with the■Legislature and providing a reason which can be passed -'off asself-evident and making it appear that the courts are actually acting inconformity with the intentions of Parliament rattier-than defying them.
Professor Wade in his work "Administrative Law" (5th-Edn.), at page604, states that as a result of the Anismiriic judgment:
", . . The policy of the courts thus becomes-one of totaldisobedience to Parliament. Under, the basic distinction whichformerly obtained,'and which the House of Lords supposed thatthey were upholding in the Anisminic case, judges could at least saythat they were obeying Parliament in- some situations, while.,construing ouster clauses as not applicable in others'. But now theyseem to have lost sight.of'the reasons which justified their attitudeoriginally!'
By way of contrast Professor Wade speaks of the different approachm the Australian cases at page 609. He says:
:“The High Court.of Australia has made interesting attempts to
steer a middle course. Its solution is to retain power to quash forplain excess of jurisdiction, but not to intervene 'where thetribunal has made a bona fide attempt to exercise its authority in amatter relating to the subject with which the legislation deals andcapable jeasonablyof being referred to the power possessed by
the .'tribunal..'”
Sri Lanka Law Reports
[1986] I SnL. R.
This Australian approach merits consideration in us own right, buthas great.appeal when we have to deal with a constitutional provisionof.that natur'e-which embodies the will of a sovereign People. It ought,not to be brushed aside except for good and weighty reasons.
There- is therefore much to be said for a literal interpretation ofArticle 55(5), which would have the effect of shutting out the courtscompletely from..this,sphere. First, this is a constitutional provision.The .wording of Article 55(5), excluding matters of fundamental rights,suggests the inclusion of everything else. Further this administrativesphere is regulated by a hierarchy of self regulating and self correctingprocesses with no less than the Cabinet of Ministers itself at the head.
Let us however assume that there is substance in Mr. Choksy'sSubmissions and a literal interpretation would be too drastic. Could wediscover a less rigorous test which can accommodate the examplesgiven by Mr. Choksy?
■ – Some of the examples that were given or come to one's mind in this-connection may be extreme or even fanciful like the General Managerof- Railways purporting to make an appointment to the medicalservices or the Ayurvedic Commissioner making appointments to theFisheries Department. Such examples, if not extreme, are more oftenthan not seen to be unreal and illusory when analysed. Professor I. D.Campbell in a learned article disposed of such an example – the officeboy exercising the power of a director – in the following vein:
"To take the fantastic but over popular instance of the office boy.it would be unusual (to use no stronger word) for the directors tohave power to delegate to the office boy power to concludeimportant contracts: but if such a power of delegation wereincluded in the articles, a delegation to the office boy would be aperfectly normal exercise of the power of delegation. Had it been apower to delegate authority to such person or persons as thedirectors may think fit delegation to the office boy would be anunusual exercise of the power. It would be so unusual that theoutsider would be put on inquiry."
This of course is not the only way of dealing with the matter. Thereare usually, in our law, adequate administrative procedures andappeals to rectify errors and dishonest• acts, and it would beremarkable if the outrageous examples that were given could haveactually happened or remained unremedied.
SCAbeywickrema v. P'athirana (Wanasundera. J..) '189
Such examples go to highlight the problem: They mayindicate one.extreme. At'the other there is the perfectly lawful agt. for which nopreclusive clause is needed – even though validity’play have, to befinally determined in judicial'proceedings. Leaving these extremes pdf; .there is middle ground where an act, to use terminology from another'branch of law may be voidable rather than void' as these terms are’used strictly. They would include to borrow, the wording of- theAustralian case the instance where the power that'had been exercisedis capable reasonably of being referred to the' power possessed, bythat authority and a bona fide attempt had been made to exercise-thatpower. As the earlier discussions relating to Professor de' Smitlrsissues show, this would include cases of implied ostensible orapparent authority. The present case falls well within this category: In'my view the preclusive provision should be given effe'ct to-at least inthis third category and I can see no apter instance for its application .than the present case This case involves a matter of. what is -essentially indoor management and the exercise of potential powersby the Regional Director and where in fact there has been a practice' of.his exercising such functions.•.’
To sum up, if we seek to apply the rigorous principles enunciated byde Smith, stated earlier, and take the petitioner's case at its highest, Ifind that we have here a case where the'Education ServicesCommittee has been duly vested with authority to accept resignations.
It was fully authorised by Article 58 to sub-delegate this power to anypublic officer. So that a Regional Director of Education, a Head of aDepartment, and who ordinarily constituted the channel ofcommunication between teachers in the region and the EducationServices Committee, could have constituted a proper authority in lawfor vesting this authority. The procedures for such delegation werealso non-statutory and there were no statutory procedures imposinglimitations on the agent..
Stated in negative terms enunciated by de Smith, we find that the.Regional Director did. not purport to exercise a power which theEducation Services Committee did not possess, nor did the RegionalDirector exercise a power which he was potentially incapable of beingdelegated. There were, also no statutory powers trammelling theexercise of powers, of both these authorities. Further, we find that theconduct'of the Education Services Committee, the Ministry of.Education, and;the Government has been such that by their acts of
Sri.Lanka Law Reports
[1986] 1 SriL. R.
commission-or omission they had held out or represented the RegionalDirector as an officer who was capable of or was entitled to exercisehis; power. ThejEdpcation Services Committee also appears to haveacquiesced in tKe .exercise of power by the Regional Director or haditself neglected to'exercise that power and remained idle andpermitted the Regional'Director to exercise the power
In the result I hold that in virtue of Article 55(5). this court cannotinquire .into the-validity of the acceptance oi the 1st respondent'sletter of.appointment.
• The effect.of Article 55(5) in this case is to screen and shut out anyinquiry into the validity of the acceptance of the letter of resignation.This ruling reinforces my earlier ruling on the other issue and theirconjoint effect is that the 1st respondent was duly qualified to benominated and elected for this seat.
. In view of this conclusion I find it unnecessary to consider the other'.matters raised by both counsel. I would accordingly dismiss thisappeal with costs both here and before the Election Judge
Appeal allowed.
Election of 1st respondent declared void.