Sri Lanka Law Reports
(2005) 1 Sri L. R.
SEEMITHA ATHUGALPURA PUDGALIKA BUSSANGAMAYA AND ANOTHERVS
NORTH WESTERN PROVINCIAL COUNCIL ROADPASSENGER TRANSPORT AUTHORITY AND OTHERSCOURT OF APPEALSRISKANDARAJAH, J.
C. A. WRIT APP 249/2003,JULY 15, 22, 2004
Writ of Quo Warranto – Lacks basic qualifications De facto holder of a publicOffice-should it be a substantive office – Availability in what circumstances -Can a writ be issued if the post is non existent? – locus standii – Public Office-Road Passenger Carriage Services Statute -4 of 1995 North-Western ProvincialCouncil.
The 2nd Respondent claims to hold the office of Assistant Director (Operations)in the 1 st Respondent Authority. The Petitioner sought a writ of quo warranto on
CA Seemitha Athugalpura Pugalika Bus Sangama and another vs North 43Western Provincial Council Road Passenger Transport Authority and others
the 2nd Respondent- Assistant Director (Operations) as he lacks the basicqualifications necessary to lawfully hold the said office.
It was also contended by the Petitioners that the post of Assistant Director(Operations) is non – existence in the 1st Respondent Authority : TheRespondent – contended that the office of the 2nd Respondent is not an officewhich is amenable to the relief claimed and that the Petitioner lacks locusstandi.
To succeed in this application for a writ of quo warranto the Petitionermust first establish that there is an office of a public nature and the 2ndRespondent is functioning in that office without proper qualificationsor Authority.
As the position of the Petitioner is that the post of Assistant Director(Operations) does not exist, the question whether the post is of apublic nature does not arise.
As the post of Assistant Director (Operations) is non existent in the 1stRespondent Authority, there cannot be a usurpation of the office ofAssistant Director (Operations)
“The test to be applied whether a writ of Quo Warranto is available -iswhether there has been a usurpation of an office of a public nature and anoffice of substantive character, that is an office independent in title and notmerely the function or employment of a deputy or a servant held at the willand pleasure of others”
Application for a Writ of Quo Warranto.
Cases referred to :
Deen vs Rajakulendram – 40 NLR 25
Siriwardana vs Fernando – 77 NLR 469
Sunil Cooray with G. Rodrigo for PetitionerNavin Marapana for Respondents.
cur. adv. vult.
Sri Lanka Law Reports
(2005) 1 Sri L. R.
March 21,2005SRISKANDARAJAH J.
The 1st Petitioner is a limited liability company limited by guarantee,and incorporated under the Companies Act No. 17 of 1982 having perpetualsuccession and common seal, and operating under the name and style of“(Apayen) Seemitha Athugalpura Paudgalika Bus Samagama". The 2ndPetitioner is the Chairman of the said company. The 1st Respondent isthe Authority established under the Road Passenger Carriage ServicesStatute No.: 4 of 1995 of the North Western Provincial Council. ThePetitioners submitted that the 2nd Respondent at present claims to holdthe office of Assistant Director (Operations) of the above authority, and hehas accepted and commenced to exercise the powers and functions ofthe said office. The Petitioner further submits that the 2nd Respondentlacks the basic qualification necessary to lawfully hold the office of theAssistant Director of the 1 st Respondent Authority and has sought a writof quo warranto.
When this case was taken up for argument on 28.05.2004, theRespondents raised preliminary objections and the parties agreed to filewritten submission. The Respondents raised the following preliminaryobjection to this application.
The Petitioners are not entitled to the relief prayed for in theirpetition as what has been prayed for are certain declarations anddirectory relief which can only be granted by the District Courtand there is no prayer for a mandate in the nature of the Writ ofQuo Warranto as set out in the caption to the petition.
The office of the 2nd Respondent is not an office which is amenableto the remedy of Quo Warranto as it is not a public office.
The Petitioner has no locus standi to pursue this application.
The Petitioner’s application is belated and therefore the Petitioneris not entitled to the relief claimed.
The Respondents and the Petitioners have filed their written submissionto these preliminary objections.
CA Seemitha Afhuaalpura Pugalika Bus Sangama and another vs North 45
Western Provincial Council Road Passenger Transport Authority and others
Firstly, I will deal with the merits of the second objection. TheRespondents submitted that it is established law that the remedy of QuoWarranto lies only with regard to the de facto holder of a public office. Inthe instant case the 2nd Respondent has been appointed to office as theRegional Director of the 1st Respondent Authority. The 2nd Respondent’sletter of appointment marked ‘H’ and annexed to the petition clearly showsthat the 2nd Respondent’s office is one clearly held at the will and pleasureof the 1 st Respondent and this letter of appointment includes a probationaryperiod of three months therefore the respondents submitted that thesefacts clearly bring to light that the 2nd Respondent is a mere contractedemployee of the 1 st Respondent Authority, and the'office he is holding isnot a public office for the purpose of being amenable to a writ of QuoWarranto. In support of his contention the Respondents relied on DeenM.Rajakulendaram1 where His Lordship Poyser J, observed :
'‘Under Section 47 of Ordinance No. 11 of 1920 an Urban Councilpossesses large powers to appoint all its necessary officers, toremove any such officers so appointed to fix their salaries etc, subjectto certain restrictions. Assuming such a writ, is granted, then it mustnecessarily be available even against a coolly working underand 'Urban District Council. No doubt, such officers and servants are notholding public offices.”
“ the writ is limited or restricted and therefore cannot be applieduniversally such a writ lies for usurping any office of a public nature.
It must be a substantive office and not one, which is held at the willand pleasure of others"
The Respondents submitted that in the light of the above, it is clearfrom documents marked G and H produced with the petition that the officeof the second respondent is clearly not one that falls within the definitionof a public office for the purpose of the writ of Quo Warranto.
In reply to this objection, the Petitioners submitted that a broader viewhas been taken in the case of Siriwardana vs. Fernando<2). The Court laiddown certain guidelines to identity the “office of a public nature”: wherethe office is one which was created by statute and (a) the public have aninterest and that, (b) Exercise of them materially affects a great body ofthem, (c) execution of the officers secures a proper distribution of fundswhich the body of the public have an interest.
Sri Lanka Law Reports
(2005) 1 Sh L R.
The Petitioner submitted that in the present case the 1st Respondentis created by statute and the public have a great interest in the same andare greatly affected by the acts and deeds of the same and that the secondrespondent is not just another employee of the first respondent but aresponsible top officer, having a decision making capacity which effect thepublic at large, and as such it would no doubt necessary to move for writof Quo Warranto to declare that the 2nd Respondent is not in law entitledto hold this office on the basis of not having the minimum qualifications forthis office as required by the statute.
The Petitioner’s position according to their petition is that the 2ndRespondent was originally appointed to the post of Regional Director inthe service of the 1 st Respondent authority on 13.10.1998. The Petitionerstates that according to the recruitment procedure of the 1 st RespondentAuthority certain basic qualifications for the eligibility for appointment tothe post of Regional Director are stipulated. The recruitment procedureand the letter of appointment are marked as ‘G! and ‘H
The Petitioners also have pleaded in their petition that the 2ndRespondent was promoted to the present post as Assistant Director(Operations) and he holds this post at present. According to the prayer,the Petitioners have sought declarations that the 2nd Respondent lacksnecessary qualifications to lawfully hold the office of Assistant Director ofthe 1 st Respondent. In the written submissions of the Petitioners, it wasstated that their application before this court is in fact a writ of Quo Warrantoas very clearly stated in the caption of the application. The caption of theapplication reads as follows "In the matter of application for a writ of QuoWarranto against the Assistant Director (Operations) of the North WesternProvincial Council Road Passenger Transport Authority". The availabilityof the writ of Quo Warranto is discussed by Pathirana J in Siriwardena vFernando (supra) at 473 that:
‘The test therefore to be applied whether a writ is available is whetherthere has been a usurpation of an office of a public nature and an officesubstantive in character, that is, an office independent in title and notmerely the function or employment of a deputy or a servant held at thewill and pleasure of others.”
The Petitioners contention in the petition and in their written submissionis that the post of Assistant Director (Operations) is non – existent in the
CA Sumanawathie Karunaratne and Others vs Ariyaratne (Somawansa J) 47
first Respondent Authority. In other words, that there is no post called asAssistant Director (Operations) in the 1 st Respondent Authority. To succeedin this application for a writ of Quo Warranto the Petitioner should firstestablish that there is an office of a public nature and the 2nd Respondentis functioning in that office without proper qualifications or authority. Theposition of the Petitioners is that the post of Assistant Director (Operations)does not exist; therefore, the question whether that post is of a publicnature does not arise. In these circumstances there cannot be an usurpationof the office of Assistant Director (Operations) which is non existent. Forthis reason, alone the Petitioners cannot have and maintain thisapplications. Therefore the Court has not considered the other preliminaryobjections raised by the respondents. The Petitioners application isdismissed without cost.
SEEMITHA ATHUGALPURA PUDGALIKA BUS SANGAMAYA AND ANOTHER vs. NORTH WESTERN