ABEYNAYAKE AND OTHERS v. RICHARD PATHIRANA, MINISTER OF EDUCATION AND

041-SLLR-SLLR-2003-1-ABEYNAYAKE-AND-OTHERS-v.-RICHARD-PATHIRANA-MINISTER-OF-EDUCATION-AND-.pdf


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ABEYNAYAKE AND OTHERSv
RICHARD PATHIRANA, MINISTER OF EDUCATIONAND HIGHER EDUCATION AND OTHERS
COURT OF APPEALTILAKAWARDENA, J. ANDWIJERATNE, J.
CA 885/99JULY 15, 2002
Buddhist and Pali University of Sri Lanka Act, No. 74 of 1981 as amended byAct, No. 37 of 1995, sections 9, 16(2), S.23(1), 39B(4)b, 39(B)2 b and 45(2)XII – Minister appointing Competent Authority – Unreasonable and unjustifi-able action – Should the Competent Authority be a Buddhist monk?Applicability of Rules framed under the Establishment Code of the UniversityGrants Commission – Judicial review.
The petitioners complain that the Minister had acted unreasonably and unjus-tifiably when he appointed a Competent Authority and that the CompetentAuthority should be a Buddhist monk.
Held:
The Minister should be reasonably satisfied that the appointment of aCompetent Authority is necessary in terms of the powers vested inhim. There were substantial grounds to authorise the Minister’s inter-ference with the administration of the University.
Though section 9 states that a Vice-Chancellor should be a venerableand it could be imputed that a regular appointment of the Vice-Chancellor should be a competent person who is a Bhikkhu, undersection 39(B)(4)b the Minister has the power to appoint any person byname or by office to be a Competent Authority.
Considering section 16(2), it is''possible to assume that even withregard to disciplinary proceedings, Rules relating to such mattersaccording to the Establishment Code of the University GrantsCommission of the Higher Educational Institution can be applied.
It is important to note that judicial review is concerned not with thedecision but with the decision making process.
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APPLICATION for mandates in the nature of writs of certiorari/prohibition.Cases referred to:
R v Chief Constable of the Merseyside Police, ex-parte Calweley andothers – (1986) 1 All ER 257 at 265 (CA)
Preston v Inland Revenue Commissioners – (1985) £ All ER 327 at 337(HL)
t
R.K. W.Goonesekera with J.C. Weliamuna for petitioners.
E.D. Wickramanayake with U. Abdul Najeem for 1st, 3rd, 4th and 5threspondents.
August 21,2002
SHIRANEE TILAKAWARDANE, J.
C.A. No. 422/99, 885/99, 405/99, 1239/99 are all connectedcases and at the hearing of these applications, Counsel on behalfof the parties agreed that the decision of this Court with regard tothe issue of the appointment of the competent authority whichforms the basic issue in all these, applications would bind all theapplications and would be decided therefore on the judgment in thiscase.
The petitioners in this application (No. 885/99) are membersof the Academic Staff of the Buddhist and Pali University of SriLanka, the said University being established by the Buddhist andPali University of Sri Lanka Act, No. 74 of 1981 as amended byAct, No. 37 of 1995. The C.A. Applications Nos. 885/99 and 422/99were instituted against the order made by the Minister of HigherEducation appointing a competent authority in terms of the powersvested in him under section 39B(4)b of the Act.
The gravamen of the argument of the Counsel for the peti-tioners was that the Minister had acted unreasonably and unjustifi-ably when he acted under the powers, undoubtedly vested in him
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in terms of section 34B(4)b of the said Act in appointing a compe-tent authority. The relevant portion of section 39B(4)b reads as fol-lows:-
4 Where the Minister is satisfied that, due to any strike or lock-out or any other cause, the work or administration of theUniversity has been seriously dislocated and that the authori-ties of the University have failed to restore normal conditions,the Minister may take all such measures as may be necessaryto ensure the restoration of normal conditions in the University.Pending the restoration of normal conditions the Minister may,by order published in the Gazette, make all such provisions ashe may deem necessary in respect of all or any of the follow-ing matters relating to the University:-
The closure of the University;
The appointment of any person by name or by office, tobe a competent authority for the purpose of exercising,performing or discharging in lieu of any officer, authorityor other body of the University, any power, duty or func-tion conferred or imposed on, or assigned to, such otherauthority or body under this Act or any appropriate instru-ment; and
Any other matter connected with or relating to any of thematters aforesaid.
On an examination of the material before the Minister heshould be reasonably satisfied that the appointment of a competentauthority is necessary in terms of the powers vested in him. Thusthe issue is whether there were substantial grounds to authorisethe Minister’s interference with the administration of the saidUniversity.
On a perusal of the documents 1R1-1R5 which set out vari-ous incidents showing that a situation had arisen at the Universitywhere the administration and management oHhe University hadcompletely broken down. A number of pupil priests had forcibly dis-connected a telephone from the University office and fixed it in theirhostel. The officers who had been appointed to maintain disciplinehad not taken any disciplinary action against them. The pupilpriests had refused to leave their hostel during the University vaca-
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tion and had obstructed the Secretary of the University from' per-forming his functions. The pupil priests had forcibly opened thegates of the Colombo Office of the University. The pupil priests hadobstructed the use of direct telephone lines by using various obsta-cles and had threatened any one from leaving the said office. Theyhad forcibly obstructed a meeting and had imprisoned some of theofficers of the staff.
•
In January 1999 the then Vice Chancellor had made a com-plaint marked 1R2, wherein allegations were made that certainpupil priests having forcibly entered his office, had threatened him,in order to compel him to withdraw his application for the post ofVice Chancellor. This fact is clarified in 1R3, a letter dated 05.01.99sent to the Minister. Also documents 1R4 and 1R5 reveal mattersrelating to auditing which had been questioned by the AuditorGeneral relating to the financial matters, which had not been lookedinto. In the backdrop of this scenario, the obvious conclusion is, thatthere was more than sufficient material for the Minister to interferein terms of the powers vested in him under section 39B(4)(b) of theaforesaid Act and on these grounds it could be reasonably inferredthat he had reason to be satisfied that it was necessary to appointa competent authority.
Professor P. Wilson who was appointed by him in terms ofthese powers was undoubtedly an experienced administrator inmatters pertaining to the University and also a renowned scholar. Itappears after such appointment, matters had taken a turn for thebetter. It is to be specially noted that for a period of almost 3months, not even the petitioners to these applications challengedthe said appointment.
The basis of the challenge to the Minister’s appointment wasthat Professor P. Wilson was disqualified from being appointed ashe was not a Buddhist monk. It appears in terms of section 9 of theAct, No. 37 of 1995 that a Vice Chancellor should be a venerableand it could be imputed that regular appointment of the ViceChancellor should be a competent person who is a bhikku.However, section 39B(4)(b) referred to above refers to the appoint-ment of any person by name or by office, to be a competentauthority for the purpose of exercising, performing or discharging inlieu of any officer, authority or other body of the University, any
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power, duty or function conferred or imposed on, or assigned to,such other authority or body under this Act. Undoubtedly under thisAct the final appointment of Vice Chancellor was envisaged to be aBuddhist monk. However it is tenable that under the extraordinarycircumstances where the Minister had to invoke his extraordinarypowers of appointing a competent authority, as the appointmentwas not a substantive appointment but only an appointment in lieuof the authority, a*person other than a Buddhist monk could beappointed.
It is important to note that the Government of Sri Lanka con-tributes over Rs. 300 Million to the running of the University andtherefore it is of paramount importance that all necessary stepsshould be taken to contain a situation especially where the admin-istration of the University breaks down due to lack of discipline onthe part of the students. With this view in mind the Minister hadbeen given extraordinary powers under the aforesaid Act. Interms of the powers he had appointed Professor P. Wilson as thecompetent authority. It appears that at the time of the appointment,perhaps in view of the gravity of the situation, and on recognisingthe urgent steps that necessarily had to be taken by any competentperson to contain the situation even the petitioners had not com-plained of the appointment for a period of almost 3 months.
As to the appointment of the 3rd respondent as the specifiedauthority section 39(B)(2)(a) reads that “the Minister may by orderpublished in the Gazette appoint any person by name or office tobe a specified authority”. The petitioner had not revealed any sub-stantial grounds as to why the appointment of the 3rd respondentshould be quashed. Therefore it should be held that the appoint-ment of the 3rd respondent is made according to section 39B2(a)and is lawful and intra vires the powers of the Minister in terms ofthe said section.
It is important to note section 39B 2(b) empowers the speci-fied authority to delegate any of his powers to such standing com-mittees or ad hoc committees consisting of such number of mem-bers as may be determined by the specified authority. Accordinglythe 3rd respondent had appointed two ad hoc committees to inquireinto certain matters. One such ad hoc committee was a one man
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committee appointed to inquire into various matters relating to mal-administration and financial mismanagement.
The next issue is whether the petitioner can seek reliefagainst the decision taken to send them on compulsory leave byletter dated 29.07.1999. The reasons stated therein were that thepetitioner was appointed outside the scheme of recruitment andthat he had obtained a fuel allowance worth R». 3000/- while hewas out of the country. This letter marked P5 was sent by.the 2ndrespondent.
In terms of letter P5 (885/99) it specifically states that thedecision to send the petitioner on compulsory leave was taken afterconsidering the Report submitted to the above referred ad hoccommittee. The submissions of the petitioner that the abovereferred charge which had been framed under the EstablishmentCode of the University Grants Commission and other HigherEducational Institutions have no application to the Buddhist andPali University, cannot be accepted. Section 16(2) of the amend-ment Act states that (ix)(a) schemes of recruitment and appoint-ment of staff to the University should be in conformity with theschemes of recruitment and procedures for appointment to othernational Universities. Therefore it is possible to assume that evenwith regard to disciplinary proceedings, rules relating to such mat-ters according to the Establishment Code of the University GrantsCommission of the Higher Educational Institution can be applied.The said Rules filed in Application No. 1239/99, marked P11 state:-
1:1 The disciplinary authorities of the University GrantsCommission and of Higher Educational Institutions are-b. The Council of a University in respect of the staff of theUniversity – provided that, except in the case of officers andteachers disciplinary powers may be delegated to the ViceChancellor – section 45(2)(xii) of the Act.
1:2 “Disciplinary control” shall mean the power to dismiss orotherwise punish persons employed in the Commission,Higher Educational Institutions and the University ServicesAppeals Board in respect of “offences calling for disciplinaryaction” detailed in para 2 which specifically states that it isnot a comprehensive list.
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Therefore the letter P5 was sent with due authority. It is alsoimportant to note that section 23(1) of the Buddhist and PaliUniversity Act itself states that the holder of any post other than theexaminer may at any time be suspended by the Vice Chancellorpending an inquiry by him for misconduct, inefficiency or derelictionof duty. Rules regarding such inquiry as stated in the EstablishmentCode referred to above should be followed. Therefore only after adue inquiry it cante decided whether the petitioners were guilty ornot guilty to the charges referred to above.
It is important to note that some of the matters appealed,relate to serious questions that have been raised by the AuditorGeneral regarding the funds allocated to the University. It must beremembered that funds have been allocated by the government ofSri Lanka for the education of Buddhist monks. Accountability of theUniversity mandates the requirement that any allegation of mis-management of funds should be carefully investigated. In these cir-cumstances the mechanism used by the authorities to look into theallegations are both necessary and within the powers vested in theauthorities.
Finally in considering the competing interests in this case it isimportant to note that the paramount concern should be the smoothand efficient running of the University for the betterment of the larg-er student population of the said University, who would like to pur-sue their education in a peaceful environment. Especially in thecase of a University which relates to the larger interest of theBuddhist community of Sri Lanka. In the absence of any basis forthe allegations of undue or unwarranted political influences by theMinister, which after complete consideration of all the salient mat-ters have not been established, this Court sees no reason to inter-fere with or to invoke writ jurisdiction of this Court in matters per-taining to this application.
It is important to note that judicial review is concerned notwith the decision but with the decision making process (1986) 1 AllE.R. 257 at p. 265)(1>. The concept of judicial review is not anappeal by challenge. An appeal deals inter alia with the merits ofthe proceedings appealed against. Judicial review is concernedwith the decision making process and is available when the deci-
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sion making authority exceeds its powers, commits an error of law,commits a breach of natural justice, reaches a decision which noresponsible tribunal could have reached and/or abuses it powers(1985) 2 All E.R. 327 at P 337)(2)
Undoubtedly if there is an oppressive decision by the Ministeror other officer it must be checked and balanced by the writ juris-diction of this Court.•
Since the claim is essentially abuse of power, in the sense ofexcessive use of power, each case must be considered in the con-text of the nature of the decision, the function of the particularpower and the nature of the interests or rights affected. In this par-ticular instance the petitioners have failed to establish that theMinister had abused the power vested in him.
In these circumstances, the application is dismissed with
costs.
WIJAYARATNE, J. – I agreeApplication dismissed.