Perera v. Amerasinghe
1953Present : Pulle J.
A. G. PERERA, Petitioner, and C. AMERASINGHE,Respondent
S. C. 125—Application for a Writ of Quo Warranto on the Member forWard No. 6, Urban Council, Kolonnawa
Local Authorities Elections Ordinance, ATo. 53 of 1946—Section 10 (1) (d)—“ Bolderof a ‘public office under the Croton ”—Indigenous Medicine Ordinance, No. 17of 1941, as amended by Ordinance No. 27 of 1945 and Act No. 49 of 1949,ss. 2, 6 (1).
The respondent was an ayurvedic physician who was appointed by theBoard of Indigenous Medicine as a visiting specialist in boils and carbunclesfor a certain period in an honorary capacity. No salary was attached to theoffice, but a monthly travelling allowance not exceeding Rs. 150 was paiddepending on the number of visits. The respondent was, according to theletter of appointment, “ expected ” to visit the hospital of Indigenous Medicinethree times a week and to deliver a course of lectures to the students on thesevisits.
Held, that the respondent was not a holder of a public office under the Crownin Ceylon within the meaning of section 10 (1) (d) of the Local AuthoritiesElections Ordinance. He was, therefore, not disqualified from being a memberof a local authority.
-L-LPPLICATION for a writ of quo warranto on the Member for WardNo. 6, Wrban Council, Kolonnawa.
D. S. Jayawtckreme, with Rienzie Wijeratne, for the petitioner.
A. L. Jayasuriya, with M. M. Kumarakulasingham and D. R. P.Gunatileke, for the respondent.
Cur. adv. vult.
PTJLiLiE J.—Per era v. Amerasinghe
February 6, 1953. PonLE J.— ■
The respondent to this application was elected on the 30th November,1950, as a member for Ward No. 6 of the Kolonnawa Urban Council. Thepetitioner challenges the election on the ground that on the materialdates the respondent was the holder of a public office under the Crownin Ceylon and that, therefore, by virtue of section 10 (1) (d) of the LocalAuthorities Elections Ordinance, No. 53 of 1946, he was not qualifiedto be elected or to sit or vote as a member of the Urban Council.
By a notification in the Government Gazette of 26th September, 1952,the Council has been dissolved and in these circumstances the properorder X should make is to dismiss the application. The respondenthowever, asks that the petitioner be condemned in costs on the groundthat the application disclosed no grounds for intervention and that itwas bound in any event to fail. It is, therefore, necessary to examinethe application on its merits.
The respondent is an ayurvedic physician who was appointed by theBoard of Indigenous Medicine as a visiting specialist, in an honorarycapacity, in boils and carbuncles for a period of one year commencingon 1st August, 1950, and the appointment was extended for a furtherperiod of one year commencing on 1st November, 1951. No salary wasattached to the office but a monthly travelling allowance not exceedingRs. 150 was paid depending on the number of visits. The respondentwas according to the letter of appointment “ expected ” to visit thehospital of Indigenous Medicine three times a week and to deliver acourse of lectures to the students on these visits.
The Board of Indigenous Medicine and the institutions administeredby them are governed by the Indigenous Medicine Ordinance, No. 17 of1941, as amended by Ordinance No. 27 of 1945 and Act No. 49 of 1949.By section 4 the members of the Board are constituted a corporationand one of their statutory duties is to provide courses of instruction inindigenous medicine to the students admitted to the College. LearnedCounsel for the petitioner has relied on section 2 under which the Collegeand the Hospital are maintained as Government institutions out offunds provided for the purpose by Parliament and also on section 6 (1)which as amended reads as follows :—
“ Every appointment of an officer or servant of any description tothe staff of the College and of the Hospital and the Pharmacy, Her-barium and Dispensary attached thereto, shall be made in accordancewith the provisions of the Public Service Regulations, subject to suchmodifications as may be made therein by regulations made^underthis Ordinance ; and for the purposes of the application of the PublicService Regulations in each such case, the powers and functionsvested by them in the Head of a Department shall be deemed to bevested in the Board.
“ All officers or servants in the service of the Board at any of theaforesaid institutions on the day immediately preceding the dateon which this Ordinance comes into operation shall be deemed to be,and to have been from the date on which they were first appointed
PUTjLE J.—Perera.v. Amera&inghe
by the Board, public servants for all purposes including the purposesof any scheme for the grant of pensions, retiring allowances or gratuities,or of benefits from any provident fund, to public servants upon thetermination of their service under Government.’'
The expression “ public office ” as used in section 10 (1) (d) of the LocalAuthorities Elections Ordinance has not been defined, unlike in the Ceylon(Constitutional) Order in Council, 1946, and the Ceylon (ParliamentaryElections) Order in Council, 1946. If it be the position that a personappointed under section 6 (1) becomes a servant of the Crown thatwould not be decisive of the question whether he holds a “ public office ”under the Crown. In the case of Lewis v. Cattle1 Lord Hewart C.J.,said—
“ There are many offices which are held under His Majesty theholders whereof are not in any proper sense of the words in the serviceof TTis Majesty. So also there are many persons in the service ofHis Majesty who do not in any proper sense of the word hold officeunder His Majesty.”
The tests by which one determines whether a particular employmentis the holding of a “ public office ” are discussed in the speeches in thecase of McMillan v. Quest2. Lord Atkin said—
“ There is no statutory definition of ‘office’. Without adopting thesentence as a complete definition one may treat the following expressionof Rowlatt J. in Cheat Western Railway Company v. Rater 3, adoptedby Lord Atkinson, as a generally sufficient statement of the meaningof the word : ‘ an office or employment which was a subsisting,permanent, substantive position which had an existence independentof the person who filled it, which went on and was filled in successionby successive holders
In the same case Lord Wright said—
“ The word ‘ office ’ is of indefinite content. Its various meaningscover four columns of the New English Dictionary, but I take as themost relevant for purposes of this case the following :‘ A position
or place to which certain duties are attached, especially one of a moreor less public character and later “I do not attempt what theirLordships did not attempt in Raters case3, that is, an exact definitionof these words. They are deliberately, I imagine, left vague. Thoughtheir true construction is a matter of law, they are to be applied inthe facts of the particular case according to the ordinary use of languageand t&e dictates of common sense with due regard to the requirementthat there must be some degree of permanence and publicity in theoffice.”
According to the evidence of Dr. J. M. L. Mendis who is the Secretaryof the Board and the Superintendent of the Hospital the post in whichthe respondent functioned was not one for which provision was made
1 (1938) 2 All E. R. 368.* (1942) A. C. 561.
(1922) 2 A. C. 1.
PTJI/LE J.—Per era v. Amerasinghe
in the estimates and consequently no salary was paid to him. I takeit that he was not bound by any of the regulations governing the salariedstaff. The fact that the respondent did not always draw the maximumtravelling allowance indicates that it was not regarded as a matter ofobligation that he should pay three visits a week to the Hospital. Inappointing the respondent as a lecturer on the terms set out the Boardapparently did not purport to exercise and did not in fact exercise anypowers and functions vested in them as the Head of a Department and,therefore, the respondent was not brought into any contractual relation-ship with the Crown. I am also satisfied that the respondent was notby reason of his appointment under an obligation to discharge duties of apublic character.
I am unable on the material before me to hold that the respondentheld a public office under the Crown. The application is refused withcosts which I fix at Us. 315.
A. G. PERERA , Petitioner, and C. AMERASINGHE, Respondent
Perera v. Amerasinghe