026-SLLR-SLLR-2002-3-AMARAKOON-AND-OTHERS-v.-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf
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Upali Amarakoon and Four Others v. UGC and Others
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AMARAKOON AND OTHERS
v.UNIVERSITY GRANTS COMMISSION AND OTHERS
COURT OF APPEALTILAKAWARDANE, J.
CA NO. 288/01MARCH 25, 2002
Universities Act, No. 16 of 1978, sections 15 (iv), 39 and 147 – Allowance paidto teachers – Who is a teacher? – Academic support staff – Are they entitledto the allowance? – Writ of mandamus available only to enforce statutory dutiesand not to compel to do what is impossible.
The petitioners sought a writ of mandamus directing the respondents to pay themthe academic allowance, that was being paid to the teachers. The petitioners werethe academic support staff.
Held:
The academic support staff could not be considered on equal par withthe academic staff; additionally they do not fall into the category of teachersas defined in the Universities Act, section 147.
The definition of teachers in section 147 is exhaustive since the definitionof teacher is followed by the word "Means" – which restricts the meaningto the scope contained in the definition. If the word 'Includes1 had beenused, the definition can be extended.
Per Tilakawardane, J.
“The existing expenditure for the payment of the academic allowance isRs. 191 million. Funds have to be obtained from the Consolidated Fund topay the academic support staff. It is clear that there is no practical possibilityof enforcing obedience. Even'if a writ of mandamus were to be granted bycourt, it is clear that it would not be possible to make extra payments."
The issue of a writ of mandamus is a discretionary remedy and the courtought to exercise discretion and decline the issue of a writ of mandamuswhen it would be practically impossible to comply with the order."
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APPLICATION for a writ of mandamus.
Cases referred to :
Mowjood v. Pussadeniya – (1987) 2 SriLR287at 298.
Samarasinghe v. De Mel – (1982) 1 SriLR123at 128.
Mohamed Sahibu v. Ariyaratne – (1985)1 Sri LR 146 at 151.
De Alwis v. De Silva – 71 NLR 108.
Weiigama Multi Purpose Co-operative Society v. Chadradasa Daluwatte -(1984) 1 Sri LR 195.
Faiz Musthapha, PC with T. Machado for petitioner.
M. R. Ameen, State Counsel, for respondents.
Cur. adv. vult.
December 07, 2002
SHIRANEE TILAKAWARDANE, J.
This application has been preferred by the petitioners who had soughta mandate in the nature of a writ of mandamus directing the 1st to5th respondents to pay the 1st, 5th, 7th, 9th to 12th, 14th and 15thpetitioners the academic allowance equivalent to 30% of their salarieswith effect from 01. 01. 1997 and to pay the 2nd, 3rd, 4th, 6th, 8th,13th, 16th and 17th petitioners the academic allowance equivalent to30% of their salaries with effect from the petitioners' respective datesof appointment. This was based on the Circular No. 729 dated 04.05. 1998, marked as P12 and the Circular No. 703 dated 04. 03.1997 produced marked P7. The basis of the petitioners' applicationwas that in view of the report of the Salaries Commission (P4), thefailure to pay the allowance amounts to a breach of the legal dutycast upon the 1st respondent by section 15 (4) of the UniversitiesAct, No. 16 of 1978: Counsel for petitioners has also stated that thisallowance was also payable in terms of the order of the Supreme
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Court in Application No. SC (F/R) 840/99 *A perusal of the proceedingsof this application shows that no order had been made to the effectas was submitted by the counsel for the petitioners. This applicationbearing No. SC (F/R) 840/99 was filed in the Supreme Court on24. 09. 1999 alleging that the Circular No. 750 dated 27. 08. 1999, 20marked P14, denying the petitioners' other academic allowance wasarbitrary, capricious and unreasonable and that the petitioners weretreated in a discriminatory manner violating petitioners' fundamentalrights to equality and equal protection of the law as guaranteed byArticle 12 (1) of the Constitution of the Democratic Socialist Republicof Sri Lanka. The copies of the petition and affidavit filed by thepetitioners in that case had been produced and marked as 1R2 (a)and 1R2 (b) and a copy of the objections filed by the 1st respondenthas been marked as 1R2 (c). In this case a settlement to this matterhad been suggested on 14. 02. 2000. On the basis of the proposed 30settlement, the Chairman of the 1st respondent Commission hadwritten a letter dated 04. 05. 2000 marked as 1R3 (a) to the Secretary,Ministry of Finance and Planning. In this letter he had adverted tothe fact that the "academic support staff" in the University system werenot eligible to receive the academic allowance as this allowance wasonly paid to “teachers" as defined in the Universities Act, No. 16 of1978 which did not include the academic support staff.
It is interesting to note that in that letter 1R3 (a) the Chairmanof the 1st respondent Commission has set out, with reference to theSalaries Commission Report, that there was distinct categorization 40between “teachers" as defined in the Universities Act referred to aboveand the "academic support staff". This distinction had been consideredin the report of the Salaries Commission, P4, where the recommendationhad been for payment to be restricted only to "teachers" in theUniversity system as defined in the Universities Act, No. 16 of 1978,who should be paid the academic allowance (vide page 71). Thisdistinction was possible on a basis that for appointments to the twopostings had distinctions that defined them into two categories. The"teachers" defined in the aforesaid Act had not only to undertake
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teaching assignments but also had to carry out research and keepa record of their publications and such research conducted by them,which was an essential component for their promotions. Additionally,a First or a Second Class (Upper Division) in a special degree ora special degree with postgraduate qualifications (such as MA / MSc)were minimum qualifications for recruitment to the posts of teachers.Even promotions to the posts of Senior Lecturer, Associate Professorand Professor (in the category of teachers) required a specific anddetermined minimum of experience and also required a good recordof research and to obtain postgraduate qualifications. It is in thesecircumstances that university teachers in special categories are justifiedin the payments of academic allowances specially in view of theobjective that such staff would attend to the best of talent and wouldbe sufficient incentive for them to remain in their positions. None ofthose apply to the academic support staff who were not required toundertake research and maintain a record of their research in orderto obtain their promotions; nor was it mandated that they should havespecial qualifications. In these circumstances they could not beconsidered on equal par with the academic staff. Additionally, theydo not fall into the category of "teachers" as defined in the UniversitiesAct referred to above.
It is interesting to note that by 1R3 (a), which contains a referenceto the details set out above, the Secretary to the Ministry of Financeand Planning sent a reply to the respondents by letter marked 1R3(b) dated 15. 05. 2000 stating that he was not agreeable to pay anacademic allowance even on a proportionate basis specially as theacademic allowance that was recommended was payable only to the"teachers" as defined in the Universities Act, which should includeonly the academic staff. He further defined two categories describingthe reason for higher standards of remuneration to be paid on the
basis of higher qualification or superior performance which remunerationwas not needed for the academic staff. He also reiterated the objectivesof even the promotions in the category of academic staff which hadbeen made in o^der not only to attract the best qualified in the
so
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University but also to retain their services as Universities found itdifficult to prevent the exodus of University teachers due to ampleopportunities that are available to them in foreign universities. Thisafforded them better and more attractive remuneration and other perksand facilities. He also expressed the danger of making such paymentsas if it would extend beyond the definition of teachers in the UniversitiesAct and it would also have to be extended to all those who provided 90necessary services to the students. The 4th respondent therefore didnot agree to the payment of this allowance.
Counsel for petitioner argued that the 4th respondent had nopowers to make a decision on this matter as a decision had alreadybeen made by the Chairman of the University Grants Commission,namely, the 1st respondent and that the only powers that the 4threspondent had were the administrative powers which mandatedcompliance with the directions of the Commission. In other words thepetitioners' argument was that the payment of an academic allowancewas a matter that was within the power of the 1st respondent 100Commission in terms of section 15 (iv) of the Universities Act andthat obtaining the approval of the Ministry of Finance was merely anadministrative requirement. His submission, therefore, is that the replydated 15. 05. 2000 1R3 (b) sent by the Secretary of the Ministry ofFinance and Planning was immaterial and irrelevant. However, theposition of the 1st respondent Commission was that, if the Governmentfailed to agree to its suggestion, it did not have the capacity to paythe petitioners an academic allowance and a careful perusal of section15 (iv) of the Universities Act clearly demonstrates the requirementsthat the payments would be made within the overall wage and salary nopolicies of the Government. Clearly, the ultimate payments come fromParliament. In terms of 1R4, the funds allocated by Parliament throughthe Government forms almost the entirety of the funds of the 1strespondent Commission. Therefore, the decision of the 1st respondentmust necessarily have the concurrence and ratification of theGovernment through the 4th respondent. Clearly, therefore, in thecircumstances in terms of section 15 (iv) of the Universities Act there
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is no imposition of a legafduty on the 1st respondent to pay anacademic allowance to the petitioners specially if it is found not tobe within the overall wage and salary policies of the Government.A writ of mandamus is available only for statutory duties. However,no statutory duty had been imposed on the 1st respondent to pay• wage increases as the funds for such payment are not within the ambitof his powers but is vested with the 4th respondent subject to theoverall wage and salary policies of the Government. Therefore, suchpayments must necessarily be made with the approval of the 4threspondent Ministry. In this case such approval has not been given,as is apparent from the' letter of the 4th respondent dated 15. 05.2000 marked as 1R3 (b). Clearly, the recommendation of the 1strespondent Commission for the increasing of the wages structure tothe teachers as defined in the Universities Act could not be extendedto academic support staff in view of the disparity between the academicstaff and the academic support staff, specially in view of disparity intheir payments and promotions.
In any event taking the allowance beyond the restriction of "teachers"as defined in the Act, would eventually pave the way for otheremployees of the University also to claim this allowance. In any eventas has been reiterated to do so would not be consistent or inaccordance within the overall wages and salary policies of theGovernment. It is to be specifically noted that the funds for suchpayment would necessarily have to come only from Parliament. Thispayment, therefore, ordered by the 1st respondent clearly cannot becategorised as a statutory duty as it is contingent on other factors.
In any event, it is significant that the petitioners had originally filedthe aforesaid Supreme Court Application No. SC (F/R) 840/99 alleginginfringement of fundamental rights and the case was settled on thebasis that the Chairman of the 1st respondent Commission was towrite a letter, which is dated 04. 05. 2000 marked 1R3 (a) to theSecretary, Ministry of Finance and Planning. It is evident from theproceedings of 16. 05. 2000 in the said application (P15) that the
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.Supreme Court had been informed orf 16. 05. 2000 that the 1strespondent Commissioner had recommended the payment of anacademic allowance to the 4th respondent, Secretary, Ministry ofFinance and Planning by letter 1R3 (a). Consequently, the SupremeCourt application had been dismissed on the application of the petitioner.Instead of having the action dismissed the petitioner should haveawaited the outcome of the recommendation and if he had done sohe would have become aware that the 4th respondent had notaccepted the recommendation of the 1st respondent and this mattercould have been listed for argument before the Supreme Court and i«>an adjudication on this problem could have been finalized in thatapplication. Instead of seeking a re-adjudication on this matter at theSupreme Court even by filing a motion setting out the sequence ofevents, he filed a new application in this Court. Furthermore, he hadmisled this Court in paragraph 28 of his petition by stating that therehad been an order of the Supreme Court, which cast a duty on the1 st respondent Commission to pay the allowance in terms of the saidorder of the Supreme Court. This was not only incorrect but is alsomisleading. The application to the Supreme Court had been dismissedupon a settlement whereby the petitioner had agreed to the 1st itorespondent canvassing the payment of this allowance from the 4threspondent.
It is common ground that a Presidential Committee was appointedin 1995 in order to examine and analyze the problems affecting theUniversity system and this committee was given powers to makerecommendations in relation thereto. The recommendations of the saidcommittee were referred to the Salaries Commission by the Government.The Salaries Commission considered these recommendations andother recommendations made by various groups and compiled a reportmarked P4. It is evident from the table 6.2 at page 69 and 6.3 at 180page 70 of the report of the Salaries Commission, specially at paragraph6.23 of the said report that the Salaries Commission made a distinctionbetween "academic staff" and the “academic support staff". Theacademic staff consisted of Senior Professors, Professors, Associate
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Professors, Senior Lectured Grade I, Senior Lecturers Grade II,Assistant Lecturers, etc., and the category of "academic support staff"included Senior Engineering Teaching Assistants, Engineering TeachingAssistants Grade I, Engineering Teaching Assistant Grade II andInstructor in English Grade I, etc. The Salary Commission at paragraph6.24 of the page 70 of the report P4 recommends that an academic 190allowance equivalent to 30% of salary be paid to academic staff andthat the said recommendation was stated in most specifically at page71 of the said report where it was categorically stated that theacademic allowance be paid to "teachers in the University system asdefined in the Universities Act”. The definition of teachers at section147 of the said Act reads as follows:
"teacher" means a Professor, Associate Professor, SeniorLecturer, Lecturer and Assistant Lecturer, and the holder of anypost declared by Ordinance to be a post, the holder of which is 200a teacher."
The report of the Salary Commission referred to above was placedbefore the Cabinet of Ministers by Her Excellency the President actingas the Minister of Finance and that it was approved by the Cabinetof Ministers on 06.11.1996. (vide 1R1 (a) (b) (c)) referred into CabinetMinutes of 06.11.1996 and 14.11.1996. Thereafter, the 1 st respondentCommission informed Secretary, Ministry of Finance and Planning bycircular dated 27. 02. 1997 that the Government had decided toimplement a new salary scale with effect from 01. 01. 1997. Pursuantto this, the 1st respondent had issued a new circular bearingNo. 703 dated 04. 03. 1997 implementing the aforesaid Government 210policy decision on salary scales and circulars dated 27. 02. 1997and 04. 03. 1997 had been annexed to the petitioners' proceedingsas P7.
In terms of paragraph 3.3 of the circular dated 27. 02. 1997 thisallowance of 30% was only to be paid to the "teachers" as definedin the Universities Act. Clearly, the petitioners were not entitled to
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the aforesaid allowance since the petitioners did not possess theprerequisite qualifications and did not perform the duties that wereincumbent upon the holders of the post that can be defined to beinclusive within the meaning of "teachers" as specified in the aforesaidAct.
Counsel for petitioner has sought to extend the meaning of “teachers"as stated in the Universities Act to include academic support staff.However, as set out above the definition under the classificationsspecially with regard to their qualifications and prerequisites for theirpromotions are distinct and diverse.
In terms of section 39 of the Universities Act though teachers wereadmitted to include Librarian, Deputy Librarian and Assistant Librarianit specially excluded the academic support staff.
It is significant that the definition of “teachers" in section 147 isexhaustive since the definition for "teacher" is followed by the word"means", which restricts the meaning to the scope contained in thedefinition. In the alternative if the word "includes" for instance hadbeen used, the definition can be extended to be the meaning .ofstatutory and include the entire English definition of the word. Theword "teacher" has been defined in section 147 of the UniversitiesAct only to mean a Professor, Associate Professor, Senior Lecturer,Lecturer and Assistant Lecturer. Therefore, it cannot be extended toinclude the petitioners who are Engineering Assistants and EngineeringTeaching Assistants who do not come within the purview of thedefinition of teachers as contained in section 147 of the UniversitiesAct. It is clear that the Salaries Commission of 1995 in its reportmarked P5 intended to give an academic allowance only to those whofall within the aforesaid definition of teachers and as such excludedthe petitioners who are from the academic support staff. The definitionbetween the two categories has been carefully analyzed and neednot be reiterated.
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Another matter that was submitted to the consideration of this courtwas that the interpretation of the word "teachers" should be given
a contextual interpretation. However, he has not explained why suchan interpretation can be given specially in the light of the report ofthe Salaries Commission P4 which has made a distinction betweenacademic support staff and the academic staff. Specially, as in termsof paragraph 6.8 at page 65 of the report of the said SalariesCommission, the payment of an academic allowance was recommendedon the basis of high performance level referred to earlier and otherperformances in the form of postgraduate qualifications, research andpublications. Futhermore, there was a need to place such academicsat a higher salary level within the Universities system in order to attractand retain high quality. These criteria would not be applicable to thepetitioners as in terms of letters marked 1R3 (a) and 1R3 (b). It isclear that they are not required to have a "First" or “Second" (Upper)Class at the point of recruitment and neither were they required toundertake research nor was a record of research an essentialrequirement for their promotions. Furthermore, there was no difficultyin making recruitment to academic support staff to which the petitionersbelonged and they were remunerated at a compared basis and othersimilar grades in the public sector including Corporations and StatutoryBoards (1R3 (a) and 1R3 (£>)).
In the circumstances, specially in the context of the SalariesCommission of 1995 in its report of P4, that had made a distinctclassification between academic staff and academic support staff andrecommended the enhanced structure wages to only those who fallwithin the definition of "teachers" as defined in section 147 of theUniversities Act, the petitioners’ claim for such academic allowancewas not tenable in law.
In the cases of Mowjood v. Pussedeniya;® Samarasinghe v. DeMel;® Mohamed Sahibu v. Ariyarathne<3) it was held that the issueof a writ of mandamus is a discretionary remedy and that court oughtto exercise discretion and decline the issue of a writ of mandamus
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when it would be practically impossible to comply with the order asit is evident from column No. 4 in Annex No. II to "1 R4° in the summarythat the existing expenditure for the payment of the academic allowanceper annum is Rs. 191 million. In this regard an examination of theletter marked 1R4 dated 03. 06. 1999 written by the Chairman of the1st respondent Commission to the Director-General, Department ofGeneral Treasury reflects the funds and the amount that has to beobtained from the Consolidated Fund to meet the expenses. It is clearin terms of letter 1R3 (a) that there was no practical possibility ofenforcing obedience. Even if a writ of mandamus were to be grantedby this court it is clear that it would not be possible to make extrapayments. Mandamus will not operate to compel the respondents todo what is impossible in law and in fact and in all the circumstancesset out above this court finds that in any event in terms of section15 (iv) of the Universities Act, it does not appear to be possible toimpose a legal duty on the 1st respondent to pay an academicallowance to the petitioners since it would not be within the "overallwage and salary policies of the Government", since a writ of mandamusis available only for the enforcement of statutory duties (De Alwis v.
tA
De Silva;Weligama Multi Purpose Co-operative Society Ltd v.
Chandradasa Daluwatta!5)) Therefore, this application is dismissedwith costs.
Application dismissed.
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