CADheerasena v Post Master and Others349
POST MASTER AND OTHERSCOURT OF APPEALEKANAYAKE, J. (P/CA)
CA 552/2007 (WRIT)
MAY 5, 2008
Writ of Mandamus – Prior services to be considered and added to entitle himfor his full pension? – Public Law remedy – If there is only a privilege doesmandamus He? – No absolute right to a pension? – Delay?
The petitioner sought a writ of mandamus compelling the respondent toconsider his prior services and to add same to entitle him for his full pension.
The writ of mandamus retains its original character as a public law remedy,and it should be a duty of a public nature where power is conferred by lawto exercise it in a given factual situation may be either a duty or enable onlya privilege conferred by law on the repository of such power.
If this is only a privilege either to exercise it or not mandamus does not lieto compel its exercise, in the case of a privilege to exercise or not toexercise the power in question, mandamus still does not lie even if therepository of the power decided to exercise it.
The petitioner in terms of the Minutes on Pension does not have an absoluteright for a pension therefore there is no duty cast to grant a pension.
Per Anil Gooneratne, J.
"Though the petitioner has a grievance he cannot maintain this applicationsince the facts contended have been determined by the Court of Appeal, onecannot keep on reagitating the same issue over and over again by introducingthe case of another person to get over the difficulty".
Section 20(a) of the Minutes of Pensions is relevant only to a public servantwho at the time of retirement was entitled to a pension, but due to aninterruption of service he becomes not entitled to the payment of thecomplete pension, where the minimum pension has not been covered, hisprior service could be added, even though he was daily paid or held a
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temporary monthly paid or was a permanent non-pensionable monthly paidemployee.
Inordinate delay would disentitle the petitioner to relief by way of aprerogative writ.
APPLICATION for a Writ of Mandamus.
Cases referred to:
J.B. Textiles Industries Ltd. v Minister of Finance and Planning 1981 2 SriLR 238, 280-285.
Perera v Chairman, Urban Council Dehiwela Mt. Lavinia 62 NLR 383.
Attorney-General v Abeysinghe 78 NLR 381.
Gunawardane v Attorney-General 49 NLR 359.
Nixon v Attorney-General 1930 1 Chan 587.
Nixon v Attorney-General 1931 AL 184 (HC).
Athula Ratnayake v Jayasinghe 78 NLR 35.
Rasammah v A.P.B. Manamperi (Government Agent, Anuradhapura) 77NLR 313.
Dissanayake v Fernando 71 NLR 356.
S. Amarasekera for petitioner.
A. Gnanathasan. nSG with G. Wakishta Arachchi SC for respondent.
June 19, 2008
ANIL GOONERATNE, J.The petitioner a retired Grade II Post Master has filed thisapplication seeking a Writ of mandamus praying for relief as inprayer (ii) of his petition. By this application petitioner pleads thathis prior services should be considered and added to entitle him forhis full pension and as referred to in document P3, P4, P10, P11and P12.
Preliminary objections were raised by the learned DeputySolicitor-General who appeared for the respondents, to theapplication of the petitioner and their objections are pleaded inparagraphs 3 of the statement of objections of the respondents asfollows:
The petitioner is estopped from invoking the Writ Jurisdictionof Your Lordships' Court since the facts contested in thisapplication have already been determined by the Court of
QADheerasena v Post Master and Others351
Appeal in CA 785/2001. The order of the said application hasbeen annexed to the petition marked as P6.
The petitioner has suppressed and/or misrepresented vitalmaterial facts to Your Lordships' Court.
There is inordinate delay on the part of the petitioner evenwhen the petitioner invoked the jurisdiction of YourLordships' Court in the year 2001 since the petitioner retiredin the year 1988.
The 2nd respondent cannot determine the, eligibility of thepayment of pension to the petitioner in contravention of theletter of appointment (P1) and the Cabinet decisions(1 R3A,1 R3-B, 1R4-A, 1R5-A, 1R5-B) they have alreadybeen made, refusing the payment of pension to thepetitioner;
Necessary parties i.e. the Cabinet of Ministers are not beforeYour Lordships' Court.
The case of the petitioner is that he was appointed a Sub-PostMaster of Pahala Moragahawewa Sub-Post Office on 01.02.1958and continued to serve until 01.03.1988. On or about 01.10.1980the said Sub-Post Office had been upgraded and the petitioner whowas the incumbent Sub-Post Master was appointed to the post ofGrade II Post Paster and Signaler by the appointed letter markedP1, dated 23.01.1981. Petitioner completed 8 years service in thesaid post which he states is pensionable, until he reached the ageof 60 years on 01.03.1988. By letter marked P2 petitioner wasreleased from service.
On the appointment as Sub-Post Master by P1, petitioner hadserved 8 years and 4 months when he reached the age ofretirement which period was insufficient for pension entitlement. Assuch in order to complete 10 years of service to make him eligiblefor a pension he applied for an extension of service. He claimed itwas granted (no document annexed to support this point). Howeverpetitioner states that the letter of extension of service to conclude10 years service was concluded after 27 days and he could notserve the required period of 10 years, (no document annexed tosupport this point). Petitioner also pleads (paragraph 8 of the
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petition) that he appealed to the authorities against the cancellationof service extension which he claims to have been granted andcancelled as stated above and for such appeal there was noresponse, until he received letter P3 of 17.8.1999 from the 3rdrespondent to take steps to award the petitioner a pension.
The petitioner seeks to support his case by referring to lettersmarked P3, P4 addressed by 3rd respondent to 1 respondent (PostMaster General) which request the Post Master General to grantthe petitioner pension rights. To this application documents P10-P12 are also annexed to support the petitioner's case. DocumentsP3, P4 and P10-P12 are all letters written by Government officialsrequesting that a pension be granted to the petitioner (includingDirector Pensions).
The counter objections of the petitioner inter alia focus on thefollowing, where the petitioner thought it fit to formulate certainarguments to counter the position of the respondents.
Denies that he misrepresented or suppressed facts.
That he is not estopped by the previous case he filed anddetermined by this court since a cause of action accrued tohim after a grant of pension to another person calledAnagihamy who was entitled to a pension.
Cabinet of Ministers are not necessary parties since theCabinet did not decide the granting of pension to the abovenamed Anagihamy.
Although the petitioners service before the pensionable post,has been waived as non-pensionable service, subscriptionhas been deducted from the salary to the Public Servants'Provident Fund from 25.09.1978.
Although the petitioner did not get the privilege of drawing apension as he was not in service on 12.11.1994 as per^®cs/95/2547/114/067 dated 15.11.1995 of the Secretary tothe Cabinet of Ministers. Cabinet White Paper No. 62/1995enable every substitutes and assistants of Sub Post Mastersto claim public service in view of that there is no difficulty inrecognising Sub Post Master as Public Servants. Videparagraphs 6 of P7.
CADheerasena v Post Master and Others353
The Writ of Mandamus retains it's original character as a publiclaw remedy and it should be a duty of a public nature where poweris conferred by law, to exercise it in a given factual situation may beeither a duty, or enable only a privilege, conferred by law on therepository of such power. It is only if there is a duty to exercise it ina given situation that mandamus lies to compel it's exercise in thatsituation.
If there is only a privilege either to exercise it or not, mandamusdoes not lie to compel it's exercise. J.B. Textiles Industries Ltd. vMinister of Finance and Planning.0) In the case.of a privilege toexercise or not to exercise the power in question, mandamus stilldoes not lie even if the repository of the power already decided toexercise it. Perera v Chairman, Urban Council Dehiwela-MountLaviniaS2) The petitioner in terms of the Minutes on Pension doesnot have an absolute right for a pension. Therefore there is no dutycast to grant a pension in the manner pleaded in the petition.
The application before this court seeks to compel the 2nd and3rd respondent in view of documents P3, P4, P10-P12 to pay thepetitioner a full pension. Before I could answer the preliminaryobjection raised by the learned Counsel for the State, it would benecessary to consider whether in view of the very nature of thisprerogative writ whether the petitioner could get the benefit of aWrit of Mandamus to compel the state to pay him a pension. Doesthe Petitioner have a legal right in this context to demand for apension?
I would refer to a decided case on 'pension' from which thequestion of a legal right to a pension was considered. In Attorney-General v Abeysinghe&L
Held:The Minutes on Pensions do not create legal rightsenforceable in the Courts.
A Court has no jurisdiction to grant a declaration in respect ofa pension.
The expression "no absolute right” in the first section of theMinutes on Pensions means "no legal right". In Sri Lankathere is no constitutional provision or any other provision of
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written law which has the effect of altering the meaning ofSection 1 of the Minutes on Pensions.
The expression "no absolute right" to my mind means "no legalright". It is a signal hoisted by the draftsman to indicate both to thebeneficiaries under the Minutes on Pensions and to the Courts thatthe Minutes are not to be taken as creating rights enforceable in theCourts. The "no legal right" concept contained in Section 1 of theMinutes is then reinforced by the text of rules 2 and 15 whichcontain the expressions "may be awarded" and "may in hisdiscretion grant".
It was held as long ago as 1948, in the case of Gunawardene vThe Attorney-General that the Minutes on Pensions merelyregulates the administration of pensions by those in whose handsthat duty is placed and does not confer upon retired governmentservants any legal rights in respect thereof. I find myself, withrespect, in agreement with this decision. In Gunawardene's caseGratiaen, J. was following the decisions of the English Court ofAppeal and of the House of Lords in the case of Nixon v TheAttorney-General in which those two judicial bodies were calledupon to examine Section 30 of the Superannuation Act (4 and 5William IV, Chapter 24) of England.
Section 1 of the Minutes of Pensions follows very closely thelanguage of Section 30 of the Superannuation Act. I think it wouldbe useful to reproduce a few passages from the judgments in theCourt of Appeal (Supra<5)) and of the House of Lords<6). The Courtof Appeal said:
"The Act appears to me to be an Act to regulate theadministration of the pension and superannuation allowancesby those in whose hands that duty is placed, and in no part isthere any conferment upon the recipients of a title to claim orreceive them. To put the question beyond doubt Section 30 isin these terms: 'Provided always, and be if further enacted,that nothing in this Act contained shall extend or be construedto extend to give any person an absolute right to
compensation for past services" Words could not be more
explicit. An attempt was made to suggest that the use of the
qADheerasena v Post Master and Others355
word "absolute" left it possible that a conditional rightremained to the civil servants, but I cannot accept that view. Inmy judgement the word is used so that a right in any form maybe negativated. The Section destroys the possibility of a claimof legal right".
In view of the above the petitioner has no absolute right for apension or a legal right; and as such it may not be necessary to gointo the preliminary objection. Nevertheless we are of the view thatthe petitioner though he has a grievance cannot maintain thisapplication since the facts contested in this application havealready been determined by the Court of Appeal in C.A. 785/2001.One cannot keep on reagitating the same issue over and overagain by introducing the case of another person namely 'Angihamy'in the manner disclosed by the petitioner in his application to getover the difficulty.
In C.A. 758/2001 …. It was held,
In terms of Section 2(1) of the Minute of Pensions a minimumperiod has been prescribed, and a person would not be entitled oreligible for the payment of pensions unless he has served 120months or ten years. Clearly on the facts referred to above thepetitioner is not entitled to a pension in terms of this provisioncontained in the Minute on Pensions.
It has been argued by Counsel appearing for the petitioner thatthe payment of this pension was recommended by the Director ofPensions who has made this recommendation of payment in termsof and under Section 20(a) of the said Minute of Pensions. ThisSection is relevant only to a public servant who at the time ofretirement was entitled to a pension, but due to an interruption ofservice he becomes not entitled to the payment of the completepension. Where the minimum period has not been covered for thepayment of pensions, his prior service could be added, eventhough he was daily paid or held a temporary monthly paid or wasa permanent non-pensionable monthly paid employee. Thissituation has not covered the present application of the petitioner.
The above extract from the judgment is a very comprehensiveanswer to the entire issue even if one were to argue that thepetitioner has a legal right. I need not consider every limb of the
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preliminary objection and would also accept the position of therespondents of an inordinate delay in the present application whichwould disentitled the petitioner for relief under writ jurisdiction sinceever the years a very long lapse of time is apparent from the dateof retirement of the petitioner. (1988) Inordinate delay woulddisentitle the petitioner of relief by way of a prerogative Writ. 78NLR 35, 77 NLR 313, 71 NLR 356.
In all the above circumstances we reject and dismiss thepetitioner's application for relief for a Writ of Mandamus. Howeverwe are not inclined to make an order for costs
EKANAYAKE, J. (P/CA) – I agree.
DHEERASENA v. POST MASTER AND OTHERS