CANational Savings Bank V Chandrasiri91
NATIONAL SAVINGS BANKV.
COURT OF APPEAL,WIJETUNGA, vJ., ANDWIJEYARATNE, J., A. NO. 708/80(F),
C. COLOMBO NO. 3368/Z,
OCTOBER 16, 1989
Contract – Offer to group and acceptance – Repudiation unilaterally by offeror – Dedara toryaction – Mandamus.
The plaintiff was employed in Grade VI of the defendant Bank. Applications for promotionto Grade IV from Grade V/VI of the banks service were c-alled for to fill 94 vacancies. The
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(1991) 1 Sri L.R.
requirements for being called for interview were 50 marks at a written test. The plaintiffand 75 others obtained over 50 marks. The bank however called for the interview 64candidates who had scored less than 50 marks and 7 candidates who had scored lessthan 40 marks. The plaintiff was also called. On 28.01.1980 the Bank announced thepromotion of 66 candidates and in this number were included candidates who had scoredless than 50 and even less than 40. The plaintiff though 28th in the test was not called.The plaintiff sought a declaration that the decision of the Bank was wrongful and unlawful.The Bank contended that no actionable wrong had been suffered by the plaintiff and thatthe plaint did not disclose a cause of action.
The plaintiff having accepted the defendants offer to its employees as regardspromotion to Grade IV by sitting the competitive examination and presenting himselffor the interview, had a vested contractual right to have his candidature for promotionto that Grade to be evaluated on the terms and conditions intimated to the employersby the defendant. It was not open to the defendant to unilaterally repudiate suchright by promoting persons in disregard of the criteria set out in the offer so made.
A suit for a declaration was appropriate. Mandamus was not the proper remedy.Cases referred to:
Cariill v. Carbolic Smoke Ball Company (1893) 1 QB 256
Shipton v. Cardiff Corporation 1917 87 LJKB 51
Clarke v. Dunraven (1897) AC 59
Perera v. The People's Bank 78 NLR 259
Ranasinghe v. The Ceylon State Mortgage Bank (1981) 1 Sri LR 121
Wetigama Multipurpose Co-operative Society Ltd. v. Daluwatta (1984) 1 Sri LR 195.
Hakmana Multipurpose Co-operative Society Ltd. v. Fernando (1985) 2 Sri LR 272.
APPEAL from Judgment of the District Court of Colombo.
Bimal Rajapaksa with Piyatissa Rajapakse for defendant – appellant.
Chula de Silva, P.C. with Gomin Dayasiri for plaintiff – respondent.
Cur. adv. vult.
August 24, 1990
The plaintiff joined the service of the defendant Bank on or about 20.07.74and was appointed to Grade VI of the Bank's service on 20.01.75.
The defendant Bank, by a circular dated 7.06.79 (P.1), called forapplications for promotion to Grade IV from employees in Grades V/VI of the Bank's service. The scheme of promotion was set out by theBank in a notice dated 15.06.79 (P.3) which stated inter alia that thecandidates will be tested at a written examination which carries 100marks, to be. held in August, 1979 and that those who obtain 50 marksand over will be summoned for an interview which will carry 100 marks
National Savings Bank V Chandrasiri (Wijetunge,-J)
Accordingly, the plaintiff submitted an application for promotion to GradeIV, sat the aforesaid written examination, obtained over 50 marks andwas called for interview. The plaintiff states that there were 94 vacanciesin Grade IV and 76 candidates who obtained over 50 marks were calledfor interview. He further states that the Bank also called for interview64 candidates who had obtained over 40 marks and 7 candidates whohad obtained even less than 40 marks.
On or about 28.01.1980, the Bank by a circular (P.8) announced that66 candidates had been promoted to Grade IV and will receive theirletters of appointment in due course. The plaintiff states that the said66 candidates included persons who had obtained less than 50 and evenless than 40 marks at the written examination but the plaintiff who hadobtained over 50 marks at the examination had not been promoted toGrade IV. He claims that the decision of the defendant Bank to considerfor promotion to Grade IV, candidates who had failed to obtain 50 marksat the said examination is wrongful and unlawful and seeks inter aliaa declaration that the decision to promote the 66 candidates referredto in (P.8) is wrongful and unlawful and a permanent injunction restrainingthe defendant Bank from implementing the said decision and issuingletters of appointment to the said 66 candidates.
The defendant, in its answer, raised inter alia a preliminary objectionthat on the face of the averments contained in the plaint, no actionablewrong has been suffered by the plaintiff and that the plaint does notdisclose a cause of action in law. It, therefore, prayed that the plaintiff’saction be dismissed with costs.
The case went to trial on several issues and the learned District Judgeentered judgment for the plaintiff, with costs, in terms of paras (a) and
of the prayer to the plaint but subject to certain directions regardingthe promotion of candidates. It is from this judgment and decree thatthe defendant has appealed to this Court.
While learned counsel for the defendant-appellant argued that the plaintiffhad suffered no actionable wrong in that he had no legal right to selectionor promotion, learned counsel for the plaintiff-respondent submitted thatin law the notices (P.1) and (P.5) constituted an offer and that the plaintiffby sitting the competitive examination and presenting himself for aninterview accepted the said offer, which consequently became a bindingcontract between the parties. Thus, there came into exists nee a contractual
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right forthe plaintiff to be promoted to Grade IV since he had been placed28th in order of merit. The defendant could not, therefore, have actedin breach of those contractual rights.
The case of Carlill v. Carbolic Smoke Ball Company, (1) is authorityfor the proposition that the performance of the condition constitutesacceptance. In the instant case, the plaintiff had performed the conditionby sitting the examination and presenting himself for the interview.
Weeramantry in his “Law of Contracts" (1967 Ed. Vol. 1) dealing withthe question of acceptance oi an offer made to a class of persons givesthe example at page 120 of a resolution by a corporation, on the out-break of war, to pay any of its servants who might volunteer and beaccepted for military service, such sums as would take up, together withhis army pay, the amount of his full salary or wages, to be an offer which,on acceptance by the employee enlisting, becomes a contract – Shiptonv. Cardiff Corp. (2)
He also refers at page 125 to the well-known example of acceptanceby conduct furnished by the case of Clarke v. Dunraven, (3) where themembers of a yacht club entering a yacht race and undertaking to bebound by the sailing rules of the club was held to be conduct by whicha contract was entered into between the members.
He makes the observation at page 120 that it is quite plain that an offerbecomes irrevocable upon acceptance and a binding contract thereuponsprings into existence and the offer cannot thereafter be withdrawn.
In any view, therefore, the plaintiff having accepted the defendant's offerto its employees as regards promotion to Grade IV by sitting the competitiveexamination and presenting himself for the interview, had a vestedcontractual right to have his candidature for promotion to that grade tobe evaluated on the terms and conditions intimated to the employeesby the defendant. It was not open to the defendant to unilaterally repudiatesuch right by promoting persons in disregard of the criteria set out inthe offer so made. The learned trial judge was, therefore, right whenhe came to the conclusion that the said decision of the defendent Bankwas wrongful and unlawful.
The next question urged by learned counsel for the appellant was thatthe Court had no jurisdiction to enter a declaratory decree against thedefendant. He relied on the case of Perera v. The People's Bank, (4)
National Savings Bank V Chandrasiri (Wijetunge, J)
where the Supreme Court held that the District Court has no jurisdictionto grant a declaration in a regular action, where such declaration is soughtas a supervisory remedy to challenge the validity of a judicial or quasijudicial determination made by a statutory authority and that where itis sought to question such determination, the appropriate remedy is toinvoke the supervisory jurisdiction of the Supreme Court by way of awrit of Certiorari.
But this case, among others, was considered in Ranasinghe v. TheCeylon State Mortgage Bank (5), where the Supreme Court (SamarakoonCJ. with 3 other judges agreeing) held that the plaintiff was entitled inlaw to maintain an action for a declaration and that Section 217 (C) ofthe Civil Procedure Code permits a declaratory judgment without grantingany substantive relief or remedy and a declaration granted under theseprovisions cannot correctly be termed a "supervisory order" in as muchas there is no order in the first place and secondly it is not a judgmentthat the machinery of the law could enforce. If the term "supervisory"in reference to a declaratory judgment is intended to describe the functionof review that must necessarily take place before a Court pronouncesupon the legality or otherwise of a decision of a body such as an inferiortribunal, then such exercise is not forbidden by law.
In any event, it seems to me that it was not open to the plaintiff in theinstant case to have sought relief from this Court by way of a writ asthe matter did not concern the performance of a public duty where theplaintiff had a sufficient legal interest.
In Weiigama Multipurpose Co-operative Society Ltd., v, Daiuwatta, (6),where the petitioner – respondent was employed as the Manager o?the appellant Co-operative Society until his interdiction and he filed anapplication seeking a writ of mandamus compelling the appellant Societyto pay his half month's salary from the seventh month of interdictionin terms of the provisions of a circular issued by the Co-ooerativeEmployees' Commission which stated that an interdicted employee wasentitled to such payment pending conclusion of the inquiry against him,it was held by a bench of five judges of the Supreme Court that Mandamuslies to secure the performance of a public duty in the performance ofwhich an applicant has sufficient legal interest and to be enforceableby Mandamus, the duty to be performed must be of a public nature andnot of a merely private character.
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In that case it was further stated at page 199 that "the Writ will notissue for private purpose, -hat is to say, for the enforcement of a mereprivate duty stemming from a contract or otherwise. Contractual dutiesare enforceable by the ordinary contractual remedies such as damages,specific performance orinjunction. They are not enforceable by Mandamuswhich is confined to public duties and is not granted wher there are otheradequate remedies".
So also in Hakmana Multipurpose Co-operative Society Ltd., v. Fernando,(7), the Supreme Court in an application relating to a similar provisioncontained in a circular issued by the Co-operative Employees’ Commissionheld that the duty prescribed by the relevant provisions of that circularwas but in the nature of a public duty such as could attract relief byway of Mandamus.
In the instant case too, the rights of the plaintiff claimed to have beenviolated by the defendant are not of a public nature but are vestedcontractual rights and in my view the plaintiff has sought the correctremedy.
In any event, on the authority of Ranasinghe v. The Ceylon StateMortgage Bank (supra), the plaintiff was entitled to bring a declaratoryaction, in the circumstances of this case.
With regard to the appellant's submission that the learned District Judgehad granted relief which has not been prayed for in the plaint, sufficeit to say that the Court hav ng granted the declaration and the injunctionprayed for in the plaint, has merely ensured for the defendant a certaindegree of flexibility in regard to the promotions of the other employees.
It was further contended by learned counsel for the appallent that all66 persons who were selected for promotion should have been madedefendants in this action. ! am unable to agree with this submission.The term "cause of action" has been defined in section 5 of the CivilProcedure Code as “the wrong for the prevention or redress of whichan action may be brought, and includes the denial of a right, the refusalto fulfil an obligation, the neglect to perform a duty, and the inflictionof an affirmative injury". I fail to see how in terms of this definition theplaintiff has a cause of action against the 66 persons who were selectedfor promotion by the defendant Bank. He does not complain of any wrong
Nanayakkara v. University of Peradeniya (S.N. Silva, J)
done by any of those 66 persons. He only seeks the prevention/redressof a wrong done by the defendant Bank and the Bank alone. Those66 persons are not persons against whom the right to any relief is allegedto exist. I therefore, see no necessity to have joined them as defendantsin this acection.
For the reasons aforesaid, I would dismiss this appeal with costs.WIJEYARATNE, J. – I agree.
NATIONAL SAVINGS BANK v. CHANDRASIRI