BASNAYAKE vs. SECRETARY TO THE TREASURY AND OTHERS

002-SLLR-SLLR-2006-V-3-BASNAYAKE-vs.-SECRETARY-TO-THE-TREASURY-AND-OTHERS.pdf


CA
Basnayake Vs. Secretary to the Treasury and Others
9
BASNAYAKEVSSECRETARY TO THE TREASURY AND OTHERSCOURT OF APPEAL.
IMAM.J.
SRISKANDARAJAH. J.
CA 1841/2003.
FEBRUARY 25,2005.
APRIL 27,2005.
MAY 18,2005.
AUGUST 26,2005.
SEPTEMBER 23,2005.
Writ of Certiorari-World Bank five year project -Appointed for one year period- Annual extension given – Services terminated after the five year period – NewManagement Circular issued to increase allowance and period – legitimateexpectation – Applicability of Circular ?
The petitioner was appointed as Project Director of a World Bank Project whichwas a five year project till February 2003. The petitioner was initially appointed
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for one year but annual extensions were granted and his services wereterminated in June 2003. By a Management Circular in 2000. the salaries ofon going project staff were increased and the staff could serve for a period ofthree years from 01.01.2001. The petitioner contends that he could serve till01.01.2004 and also sought arrears of salary, on the basis of the newManagement Circular. It was also contended that the project had in fact notcome to an end as there were advertisements in the newspapers calling forthe post of Director.
HELD:
Whether the project to which the petitioner was appointed has come toan end in the year 2003 is a matter of fact, and when there are conflictingclaims this Court cannot determine this question of fact in theseproceedings.
The Project which commenced in February 1998 for five years comes toan end in February, 2003, therefore the petitioner cannot have anyexpectation of extension of service after February, 2003.
The Management Circular in 2000 deals with review of salaries of thestaff, but does not alter the terms and conditions of employment enteredinto with the employees of the on going projects.
The salary revision is dependent according to the Management Circularon the performance appraisal, the respondent has submitted that theperformance of the particular unit is not up to the expected standard -the respondent has no duty to place the salary of the petitioner at itsmaximum as a matter of course.
Held further:
The Circular on which the petitioner is relying has no statutory force, andtherefore he cannot – seek a Writ of Mandamus on the basis of the saidCircular.
Cases referred to:
1. Weligama Multi Purpose Cooperative Society Ltd., vs. ChandradasaDaluwatta 1984 1 Sri LR 195 at 199
CA
Basnayake Vs. Secretary to the Treasury and Others
(Srlskandarajah, J.)
11
2. Perera vs. Municipal Council, Colombo 48 NLR 66Ananda Kasturlarachchi for petitioner.-
A. Gnanathasan DSG with Ravindra Gunaratne for 1 st to 3rd respondents
Cur.adv.vult.
October 18th, 2005.
SRISKANDARAJAH. J.The Petitioner was functioning as the Deputy Director of Education incharge of policy planning and program review from 1991 to 1994. In 1994he was appointed as a Director in charge of the same section and retiredon 15.02.1998. Prior to his retirement the Petitioner wa appointed as ProjectDirector of the Project Co-ordination Unit General Education Project II(GEPII) on 25.11.1997. This project is a World Bank project conductedunder the Ministry of Education. After the retirement the Petitioner wasappointed to the same post on a contract basis for one year with effectfrom 29.01.1998 by letter dated 28.06.1998 (P 10A). Even though theletter of appointment stipulates that the appointment of the Petitioner isfor one year the Petitioner submitted it is in fact until the conclusion of theproject. The project (GEPII) is a five year project and it was implementedin February 1998. His one year contract was extended annually withoutany application and he had an expectation that he could continue in thiscapacity until the completion of the Project.
By a Budget Circular No.79 dated 29.09.2003 titled “Recruitment ofstaff of the foreign funded projects and their salaries”, the Petitioner’ssalary was increased from 30,000 to 50,000. This circular also providesthat all appointments to the post of foreign funded projects should be ontemporary/casual/basis for the duration of the project period.
In the year 2000 by a Management Service circular No. 10 dated
(P17) issued by the 1 st Respondent the salaries of the staff ofthe Project Management Units of Projects assisted by foreign fundingagencies were revised from 1.1.2001. This Management service circularNo10 repealed the previous circulars including the Budget Circular No. 79dated 20.09.1998 and its amendment dated 12.03.1989. According toManagement Circular No.10 the maximum salary stipulated to the ProjectDirector of a project above 10 million US$ is Rs.75,000
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The Petitioner submitted that he and the other Management staff maderepresentations to the then Secretary to the Ministry of Education by theirletter dated 05.03.2002 (P14) and requested him to consider the paymentof the monthly salary as stipulated by the said Management circular. Therewas no response to this request and in the mean time there were changesin the government. After the 2nd Respondent was assigned to the functionof foreign funded projects requests were made to him to implement therevised salary scheme as per circular P14. The 2nd Respondent requestedthe Petitioner and others who are in the similar category to submit thePerformance Appraisal and on this request Performance Appraisals weresubmitted (P16). In the meantime the 2nd Respondent by his letter dated
(P20) terminated the services of the Petitioner with effect from
Simultaneously the services of the entire senior key staffincluding the Deputy Project Directors of the said project were alsoterminated.
The Petitioner by this application has sought to quash the decision ofthe 2nd Respondent terminating his services P20 on the basis that thetermination of his services was illegal, unjust, unreasonable and had beenmade mala fide. He has also sought a mandamus directing 1st and 2ndRespondents to pay the arrears of salary in accordance with the provisionsof the Management Circular No.10.
The contention of the Petitioner is that even though the letter ofappointment issued to him dated 29th of January 1998 is for a period ofone year on a contract basis it was in fact till the completion of the project.The Petitioner in his affidavit filed in support of this application at paragraph11 has given the details of the project for which he was the Project Directorand he has categorically stated that the Project commenced in February1998 and it is a five year project.
When the Budget Circular No.79 dated 29.09.1998 titled “Recruitmentof Staff for the Foreign Funded Project and Their Salaries" was broughtinto effect the salary of the Petitioner was increased from 30,000 to 50,000and this circular specified that all appointments to the post of foreignFunded Projects should be on temporary/casual/contract basis for theduration of the project period. .
The Management circular No.10 dated 26.12.2000 titled “Recruitmentof Staff for Foreign Management Units (PMU) of Projects Assisted by
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Basnayake Vs. Secretary to the Treasury and Others
(Sriskandarajah, J.)
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Foreign Financing Agencies and Their Emoluments" which came into effecton 01.01.2001 repealed the above circular No.79 dated 29.09.1998 and itsamendment.
The Management Circular No.10 of 26.12.2000 P12 has specificprovisions in paragraph 10 namely “Salaries of project management staffof on going projects". By this provision the appointment of the on -goingproject staffs were recognized and it provides that their salary should bereviewed according to the provisions of this circular.
The Petitioner submitted that his service was terminated from 30.06.2003by P20 and the services of all other staff officers of the said project werealso terminated along with him. The 2nd Respondent admitted this positionin his affidavit and stated that the Petitioner was given an opportunity towork until 30th of June, 2003 until the end of the project. The project wasfor a specific purpose and has a specific time frame and the project hascometoanend hence the services of the Petitioner and other ManagementStaffs were no longer required and their services were terminated. ThePetitioner submitted that the project has not come to an end and therewere advertisements in the newspapers calling for the post of the Directorand other staff officers for the same project. Whether the project to whichthe Petitioner was appointed has come to an end in the year 2003 is amatter of fact and when there are conflicting claims this court cannotdetermine this question of fact in this proceedings as these proceedingsare based only on affidavits and documents filed in support of the affidaviits.
The Petitioner in his own affidavit in paragraph II had admitted that theperiod for which he was appointed as a Project Director commenced inFebruary 1998 and it is for a five year period. He emphasized that eventhough his letter of appointment states that the contract of employment isfor one year and extended annually, in fact it is until the conclusion of theproject. Even according to the Petitioner the project which commenced inFebruary 1998 for five years comes to an end in February, 2003 andtherefore the Petitioner cannot have any expectation of extension of hisservices after February, 2003. However as the 2nd Respondent submittedthat the Petitioner was permitted to serve untill June, 2003 by this time theproject has come to the conclusion and his service was terminated.
The Petitioner claimed that clause 2.7 of the Management circular No.10is applicable to him and accordingly he could serve for a period of three
t
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years from 01.01.2001 which position cannot be accepted as the saidprovision is only applicable for new recruits appointed under the circular.The officers and the staff of the on-going project are referred to in thiscircular under paragraph 10.
Officers who are serving under the on-going projects at the date of theManagement Circular No.10 will be bound by the Circulars under whichthey were recruited for service. The provisions contained in clause 10 ofthe circular deals with the review of salaries of the staff of the on-goingprojects but the circular does not alter the terms or conditions ofemployment entered into with the employees of the on-going projects. Asadmitted by the Petitioner (in paragraph 11 of his affidavit) and theRespondents the said project has come to an end in February 2003 andTherefore the services of the petitioner were terminated in June 2003 inaccordance with the letters of appointment and the relevant circulars.Therefore this Court holds that the termination of the services of thePetitioner is neither illegal nor unreasonable. Therefore the application toquash the decision contained in the letter P20 is refused.
The 2nd question is whether the Petitioner is entitled for the salaryadjustments as provided under the Management circular No.10. Clause10.1 of the said circular provides:
“A committee comprising the Secretary of the Ministry/Ofrief Secretaryof the Provincial Council, Head of the implementing agency and arepresentative each from the Treasury and Ministry of Public Administrationshould review remuneration of Project Directors and Senior ProjectManagement Staff of on-going projects and make suitable adjustments.Such adjustments in the service contract should be made after theperformance appraisal referred to at Paragraph 8 is undertaken”.
The salary review provided in this management circular is different fromthe salary adjustment provided in the circular No.79. The circular No.79 inparagraph 3.1 provides “Salaries of the Project staff should adhere to thefollowing criteria' and it has given salaries in accordance with qualificationand experience in the relevant field. Thsr*for«> the Petitioner was placed inthe corresponding salary scale of Rs.50,000,according to his qualificationsand experience. But it is not so under the Management circular No.10.This circular provides a procedure that has to be followed to review theexisting salary of the Project Director and it provides that the maximum
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Basnayake Vs. Secretary to the Treasury and Others
(Sriskandarajah, J.)
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salary in which they could be placed is Rs.75,000. The procedure that hasto follow for salary adjustment has been specifically provided in the saidcircular and it provides that the performance appraisal has to be obtainedfrom the relevant officers and on its basis the salary adjustments have tobe made. The Petitioner submitted that the 2nd Respondent requestedthe Petitioner and the other similarly placed officers to submit performanceappraisals. A copy of the performance appraisals that were submitted aremarked P;16. The 2nd Respondent submitted that he has taken all thenecessary steps under the Management circular No.10 and thisRespondent also submitted that the performance of this particular unit isnot up to the expected standards. On the basis of the performance appraisalthe Respondents have to review the salary of the officers and the maximumlimit of the salary is Rs.75,000. The salary revision is dependent on theperformance appraisal. The Respondents has no duty to place the salaryof the Petitioner at its maximum as a matter of course. In thesecircumstances the Petitioner cannot claim that his salary should bereviewed and placed at its maximum.
On the other hand the Respondent submitted that the circulars on whichthe Petitioner is relying has no statutory force for this court to grant reliefto the Petitioner. In Weligama Multipurpose Co-Operative Society Ltd. vChandradasa Daluwatta at 199 Sharvananda, J. held:
“The writ will not issue for private purpose that is to say for theenforcement of a mere private duty stemming from a contract or otherwise.Contractual duties are enforceable by the ordinary contractual remediessuch as damages, specific performance or injunction. They are notenforceable by mandamus which is confined to public duties and is notgranted where there are other adequate remedies., Perera v MunicipalCouncil Colombo/2.
. In my view the duty prescribed by clause 7 of Circular No.18 of 1973relied on by the Petitioner is not in' the nature of public duty such as toattract the grant of a writ of mandamus for its enforcement. The instructionswhich the Co-operative Employes Commission has issued and on whichthe Petitioner Respondent bases his application does not impose a publicduty on the Respondent co-operative society to pay half months salary toan interdicted officer. The Court of Appeal has overlooked the fact that theauthorities relied on by the Petitioner for the payment of salary to the
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interdicted officer is only a circular and not a regulation. A circular notreferable to the exercise of any delegated legislative power, it does notprescribe any duty having statutory potential.’
This Court upholds the objections of the Respondents that the circularon which the Petitioner is relying has no statutory force and therefore hecannot seek a writ of mandamus on the basis of this circular.
For the aforesaid reasons the application of the Petitioner is dismissedwithout costs.
IMAM J. —/ agree.
Application refused.