073-NLR-NLR-V-72-C.-KODEESWARAN-Appellant-and-THE-ATTORNEY-GENERAL-Respondent.pdf
Kndecswaran o. Al*ormy-GenerqT<±337
SL i > a—~^
(Privy Council]
1969 Present: Lord Hodson, Viscount Dilbo'rne, Lord Dofriivan,Lord Pearson, Lord DiploekC. KODEESWARAX, Appellant, and THE ATTORNE
Respondent
Privy (Council Appeal No. 3S op 19GSS. C. 40S/G4—D. C. Colombo, 102GjZ.
Constitutional law—Public servant—Contract of service with the Crown—Actionfor recovery of arrears of salary due—Maintainability—Roman-Dutch law—Effect of Proclamation of 23rd September 1799—Applicability of English law.
A civil servant in Ceylon is entitled to sue the Crown for arrears of salarywhich, have accrued due, by the terms of his appointment, in respect of serviceswhich he has rendered during the currency of his employment. In such acase the fact that his appointment as a Crown servant is terminable at will,unless it is expressly otherwise provided by legislation, is not relevant.
“ Although the Roman-Dutch law as applied in Ceylon under the Governmentof the United Provinces is the starting point of the ‘ common law * of Ceylon,it is not the finishing point. Dike the common law of Ungland the common lawof Ceylon has not remained static since 1799. In course of time it has been thesubject of progressive development by a cursus curiae {Sained v. Segutamby,25 N. D. R. 481) as the Courts of Ceylon have applied its basic principles tothe solution of legal problems posed by the changing conditions of society inCeylon. In their Lordships* view if long established judicial authority for aproposition of law not inconsistent with the British constitutional concept ofthe exercise of sovereign authority by the Crown can be found in tho decisionsof the Ceylon courts themselves there is no need to go back to see whetherany precedent can be found for it in the jurisprudence of the Courts of theUnited Provinces or the doctrine of the Roman-Dutch jurists of the eighteenthcentury. Still less is it necessary to find a precedent for it in English commonlaw.”
Appeal from a judgment of the Supreme Court reported in(1967) 70 N. L. R. 121.
Sir Dingle Foot, Q.G., with C. Ranganathan, Q.C., Jf. P. Solomon,S. C. Crossette-Thambiah and JI. I. Hamavi Haniffa, for the plaintiff-appellant.
E. F. N. Gratiaen, Q.C., with R. K. Handoo and H. L. de Silva, for thedefendant-respondent.
Cur. adv. vult.
lxxji—15
1*—J 10714—2,255 (1/70)
33S
LORD DIPLOCIv—Rodetsicaran v. Allornty-General
December II, 1969. [Delivered by Lord Deplock]—
The appellant has been for many years a civil servant in Ceylon. Heis one still. He brings this action against the Attorney-General asrepresenting the Government of Ceylon. Its subject matter is the salarywhich he has received as a civil servant. He says that he was entitled tobe paid more under the terms of his appointment and claims the balancewhich lie alleges he lias earned but which the Government of Ceylon hasrefused to pay him. He is a Tamil and the balance of salary that heclaims is due to him is an increment which was denied to him because liedid not pass a test in the Sinhala language. The requirement that heshould pass such a test as a condition precedent to liis being paid theincrement was imposed by a Treasury Circular expressed to be issued inimplementation of the Official Language Act, 1956. . In the action heclaims that the Official Language Act is unconstitutional and void andthat the circular which was issued to implement the Act and whichpurported to vary the existing terms of his appointment is also void andineffective to disentitle him to the increment to which he would havebeen entitled under those terms.
The appellant’s action, if it lies at all, thus raises issues of the highestconstitutional importance, all of which were argued before the DistrictJudge. There is however a preliminary issue, viz. whether a civilservant has any. right of action against the Crown for salary due inrespect of services which he has rendered. If, as the Attorney-Generalcontends, there is no such right of action, the broader constitutional issuesas to the validity of the Official Language Act and as to the right of theCeylon Government to impose a language test upon its civil servants as acondition of entitlement to higher pay,, cannot be raised by the plaintiffin the present action. It fails in limine.
This preliminary issue was decided in the plaintiff’s favour by theDistrict Judge. He accordingly went on to deal with the other issueswhich lie also decided in favour of the plaintiff. On appeal to theSupreme Court (Fernando C.J. and Silva J.) the preliminary issue wasargued first. On thi3 issue that Court reversed the decision of theDistrict Judge. This made it unnecessary for the two judges whoconstituted the Supreme Court to enter upion the consideration of theremaining issues which had been dealt with in the judgment of theDistrict Judge. They accordingly heard no argument and expressed noviews on them.. The learned Chief Justico expressly stated that had itbeen necessary to decide these other issues he would have exercised hisdiscretion to convene a full court of five judges to adjudicate upon thornin view of their outstanding constitutional importance.
Upon this appeal, their Lordships have also confined their considerationto the preliminary issue whether or not a civil servant has any right ofaction in Ceylon against the Crown for salary due in respect of serviceswhich he has rendered. They too have heard no argument and expressno view upon any of the other issues raised in the action and dealt with
LORD DTPLOCK—Kodteewaran v. Attorney-General339
in the judgment of the District Judge. They would not think it properto do so without the assistance of the considered judgment of theSupreme Court.
The preliminary issue is, however, one of importance in its own right.It falls to be decided by the law of Ceylon. English law is relevant onlyto the extent that it has been adopted as part of that law.
In the case of most former British colonies which were acquired byconquest or cession, the English common law is incorporated as part ofthe domestic law of the now independent State because it was imposedupon the colony by Order in Council, Proclamation, or otherwiseunder the prerogative powers of the Crown. But in the case of Cejdon,upon the acquisition of the maritime areas which had previously beensettled by the Dutch, the Crown did not impose English law.
By Proclamation of 23rd_ September 1799, it was proclaimed—
“ 1. Whereas it is His Majesty’s gracious command that, for thepresent and during His Majesty’s will and pleasure, the temporaryadministration of justice and police in the settlements of the island ofCeylon, now in His Majesty’s dominion, and in the territories anddependencies thereof, should, as nearly as circumstances will permit,be exercised by us in conformity to the laws and institutions thatsubsisted under the ancient government of the United Provinces,subject to such deviations in consequence of sudden and unforeseenemergencies, or to such expedients and useful alterations, as may berendered a departure therefrom either absolutely necessary andunavoidable or evidently beneficial and desirable.
2. We therefore, in obedience to His Majesty’s commands, dohereby publish and declare, that the administration of justice andpolice in the said settlements and territories in the island of Ceylon,with their dependencies, shall be henceforth and during His Majesty’spleasure exercised by all eourts of judicature, civil and criminal,magistrates and ministerial officers, according to the laws andinstitutions that subsisted under the ancient government of theUnited Provinces, subject to such deviations and alterations by anyof the respective powers and authorities herein-before mentioned, andto such other deviations and alterations as we shall by thesepresents, or by any future Proclamation, and in pursuance of theauthorities confided to us, deem it proper and beneficial for thepurposes of justices to ordain and publish, or which shall or mayhereafter be by lawful authority ordained and published."
. In 1835 this was extended to the whole of the island.
The first problem raised by this Proclamation is whether the Suprem©Court were right in thinking that it3 subject matter is restricted toprivate law applicable to transactions between subject and subject so asto exclude the whole of the former Homan-Dutch public law applicable
340LORD DIPLOCK—Kodzeawaran v. Attorney-General
to transactions between subject and sovereign. The words of theProclamation must be understood in the meaning attaching to them inthe closing years of the eighteenth century and in the light of thehistorical circumstances in which the Proclamation was made. TheEast India Company which captured Trincomalee and Colombo fromthe Dutch in 1795 abolished the existing system of administration throughlocal officials. This led to a revolt in 1707. Governor North was sentout from England and the Proclamation marks his restoration of the oldsystem of civil administration. Furthermore, as the Proclamation itselfindicates, the British occupation was expected to be temporary only. Itwas not until the Peace of Amiens in 1S02 that Ceylon became a CrownColony. Read in this historical context, the actual Avording of theProclamation with its references to “ police ” (which at that date wascommonly used in the generalised sense of “ civil administration ”) to“ institutions ” and to “ ministerial officers ”, is in their Lordships’ viewmore apt to indicate an intention to restore in the recently acquiredterritory the previously existing system of law as respects the civiladministration of Ceylon, rather than to exclude this branch of publiclaw from its ambit.
But even if the relationship between the Government of the UnitedProvinces and its civil servants in Ceylon had formerly possessed thelegal characteristics of a contract of service and they had been entitled tosue that government for arrears of salary, it does not follow that acorresponding contractual relationship and right of suit between theBritish Crown and its civil servants in Ceylon was created by theProclamation.
As was pointed out by Lord Stowcll in It uding v. S?nith 1 when territoryis acquired by conquest or cession “no small portion of the ancient lawis unavoidably superseded. . . . The allegiance of the subjects and allthe law that relates to it—the administration of the law in the sovereign,and appellate jurisdictions—and all the laws connected with the exerciseof the sovereign authority—must undergo alterations adapted to thechange ”. In the Cape Colony, of which Lord Stowell was speaking,Roman-Dutch law continued in force by virtue of a Proclamation almostcontemporaneous with that ajjplicable to Ceylon but which omitted anyreference to “police ”, “ institutions ” or “ ministerial officers ”. Whathe said, however, would in their Lordships’ view appl3r also to Ceylon toabrogate any rule of law previously in force there under the governmentof the United Provinces if it was incompatible with the British conceptof the exercise of sovereign authority by the Crown. It is thereforenecessary to consider first whether the existence of a relationship whichpossessed any of the legal characteristics of a contract between theCrown and a person appointed by the Governor in Cejdon to serve in thecivil administration of the territory would have offended against thefundamental concept of the rights and immunities of the sovereign at theclose of the eighteenth century.
1 (1821) 2 Hag. Con. at p. 282.
J..ORD DIPLOCK—Koi/ccstraran r. Attorney-General
34 I
In their Lordships’ view there is no such incompatibility. In Ihceighteenth century the principal ofliccrs of the executive government ofa colony were appointed directly by the Crown in England by letterspatent. This method of appointment may well have been inconsistent,with the creation of a contractual relationship between the Crown andthe appointee, but the Proclamation was local in its ambit and would notaffect the legal relationship between these officers and the Crown. Itapplied only to subordinate officers in the civil administration of thegovernment of Ceylon who were appointed locally by the Governor andremovable by him. It is now well established in British constitutionalthcor3’, at any rate as it has developed since the eighteenth century, thatany appointment as a Crown servant, however subordinate, is terminableat will unless it is expressly otherwise provided by legislation ; but aspointed out by Lord Atkin in llcilly v. The King 1 “ a power to determinea contract at will is not inconsistent with the existence of a contractuntil so determined ”. In Reilly’s Case Lord Atkin, while finding it-unneccssary to express a final opinion~as to- whether the relationshipbetween the Crown and the holder of a public office was constituted bycontract, remarked “ tha t in some offices at least it is difficult to negativesome contractual relations, whether it be as to salary or terms ofemployment, on the one hand, and duty to serve faithfully and withreasonable care and skill on the other”. Their Lordships thus seenothing inconsistent with British constitutional theory in the Governorof Ceylon being empowered by the Proclamation of 1709 to enter info acontract on behalf of the Crown with a person appointed to an office inthe civil administration of the colony as to the salary payable to him,provided that- such contract was terminable at will.
It does not follow, however, even if the Governor was empowered toenter into contractual relations with a civil servant in the Colony as tothe payment of salary, that the servant would have a right of suit againstthe Crown for salary unpaid. A general Crown immunity from suit inrespect of obligations ex contractu if it existed in the eighteenth century inEngland might also give rise to the inference that notwithstanding thecontractual nature of a civil servant’s claim to salary in Ceylon thesovereign attribute of immunity from suit was not intended to be waivedby the Proclamation. But by the-eighteenth century it had been estab-lished that, although no writ could issue against the sovereign, monies dueto the subject under a contract with the Crown could be claimed in theEnglish courts by the Procedure of Petition of Right. Their Lordshipshave not been referred to any case as early as the eighteenth century inwhich a Petition of Right was brought by a civil servant for arrears ofsalary ; but in 1820 it was taken for granted by Chitty in *' The Preroga-tives of the Crown ” that a Petition of Right would lie “ where the Kingdoes not pay a debt-, as an annuity or wages etc. due from him Thiswas a work of high authority which would be familiar to the judges ofCeylon in the first half of the nineteenth century. Stuart Robertson irihis "Civil Proceedings by and against the Crown ” published in 1908
1 (1934) A. C. 176 at p. HO.
!•*—J 10714 (l/ro)
342
LORD DIPLOCK— Kodecmraran v. Attormy-Gsneral
states categorically that “ payment for services rendered may be claimedby Petition of Right ” and cites two such petitions brought in the eighteen-sixties of which one was successful and the other settled. It was notuntil cases decided in 1926 and after that any doubt was cast upon thisproposition. Their Lordships will advert to these cases later. It is atpresent sufficient to state that, as the English law stood at tho time of theProclamation, there was no sufficient ground in constitutional theor3' tojustify the inference that the Crown must have intended to deprive acivil servant engaged in Ceylon of any remedy in the courts of thatcountry for arrears of salary, if a remedy had previously been availableunder Roman-Dutch law as applied in the island.
If therefore under the Roman-Dutch law, as it was applied in Ceylonunder the government of the United Provinces, a person holding office inthe civil administration of that Government was entitled to a remedy inthe courts for arrears of salary agreed to be paid to him, that remedy waspreserved by the Proclamation’and the plaintiff is entitled to avail himselfof it as against the Crown.
It is not, however, essential that it should be demonstrable that such aremedy was in fact exercised before the British occupation, for althoughthe Roman-Dutch law as applied in Ceylon under the Government of theUnited Provinces is the starting jioint- of the “ common law ” of Ceylon,it is not the finishing point. Like the common low of England thecommon law of Ceylon has not remained static since 1799. In course oftime it has been the subject of progressive development by a cvrsus curiae(Sained v. Segutamby1) as the Courts of Ceylon have applied its basicprinciples to the solution of legal problems posed by the changingconditions of society in. Ceylon. In their Lordships’ view if long establishedjudicial authority for a proposition of law not inconsistent with theBritish constitutional concept of t Ire exercise of sovereign authority by theCrown can be found in the decisions of the Ceylon courts themselves thereis no need to go back to see whether aii3' precedent can bo found for it inthe jurisprudence- of the Courts of the United Provinces or the doctrine ofthe- Roman-Dutch jurists of the eighteenth century. Still less is itnecessary to find a precedent for it in English common law. Tho absenceof any supporting precedent, for the proposition in Roman-Dutch law, asapplied in the United Provinces, may be duc-to a number of reasons. Itmay have been " taken for granted ” law in the United Provinces or itmay deal with circumstances which did not exist there or did not attractthe attention of writers on Roman-Dutch law in the eighteenth century :or it may be a development of the common law of Ceylon itself eitherbefore or after 1799, of which the nasccnce and growth may be invpossibloto trace in the absence of any reports of decisions before 1S33 and veryincomplete reports thereafter until towards the end of the nineteenthcentury. Even a clear conflicting precedent in the eighteenth centuryjurisprudence or doctrine of the United Provinces would not necessarilybe a conclusive indication that a later decision of a Ceylon court is
1
(1924) 25 X. L. R. IS /.
LORD DIPLOOK—Kolc'-su-aron v. Attorney-General
343
erroneous. As Wood Renton J..pointed out in Colombo Electric TramwayCo. i*. Attorney-General1 little is known as to the precise extent to whichthe doctrines of Roman-Dutch law which were .applied in the UnitedProvinces themselves were actually introduced into Ceylon while it wasunder Dutch rule, and if authority were found in the eighteenth centurylaw of the United Provinces which was inconsistent with an old-establishedline of decisions by the courts of Ceylon, the inference may well be thatthe authority relates to a part of the law of the United Provinces whichwas regarded as unsuitable to conditions in Ceylon and was neverintroduced there.
There is old established precedent in the Supreme Court of Ceylon thatan action lies at the suit of an officer in the civil administration forunpaid salary earned during the period of his appointment. In the caseof Jansz v. Tranchelt this was treated by the Supreme Court as “ takenfor granted ” Jaw and conceded by The Queen’s Adoveate. The courtdid not find it necessary to cite any previous authority or to express anyview' as to the origin of the right of action, but thercmaydiavo bceh-rnanyunreported instances of this practice known to the judges. The actualpoint argued was whether such arrears of salary constituted a debt whichcould be attached by a creditor, but the existence of a debt- recoverableby suit by the civil servant against the Crown was an essential step in.thereasoning. In 1S6S a similar point came before the Sixpreme Court ofCeylon in Eraser’s Case 3. This was a claim for arrears of salary by acivil servant who held concurrent offices under the Imperial Governmentand the Government of Ceylon. It was held that as respects salary duein respect of his office under the Government of Ceylon prior to hisdismissal, this was a debt due to him from the Crown In Ceylon for whichhe was entitled to bring an action against The Queen’s Advocate, thoughhe failed on the facts as nothing was due to him. The Court in thiscase ascribed the origin of his right of action to Roman-Dutch law andcited the Proclamation of 1799.
Here then is authority dating back more than a hundred years that,under the common law of Ceylon, an action does lie at the suit of a civilservant for remuneration agreed to be paid to him by the terms of hisappointment and remaining unpaid.
The Supreme Court, in its judgment in the present appeal appears tohave regarded these authorities as over-ruled by the decision of theJudicial Committee of the Privy Council in Siman Appu v. The Queen'sAdvocate *. In their Lordships’ opinion this is not so. Siman Appu’sCase was concerned with the general question whet her a subject had anyright of suit against the Crown in Ceylon for breach of contract. Thecontract sued upon was not one of service and Fraser's Case was citedonly on the point- as to whether an action lay against the Crown on acontracts The Judicial Committee upon the material then before themwere unable to conclude with any certainty .that a right of suit in
1 {1914) 16 N. L. It. 161 ut p. 173.» (1363) Ram. 316.
* {1365) Ram. 160.* 9 .4. G. 571.
344LORD DTPLOCK—TCaifccsuaran v. Attorney-General
contract- against the Government of the United Provinces hadformerly existed under Roman-Dutch law, but they nevertheless heldthat whatever may be the exact origin of the practice of suing theCrown in contract it was then (i.e. by 1SS4) incorporated into the lawof Ceylon.
In the present appeal their Lordships have had their attention drawnto a passage dealing with this topic in the third book of De Jure Belli acPacts by Grotius—
" According to civil law also a person can be said to be bound by hisown act, either in this sense, that an obligation results not frdm.thelaw of nature alone but from the municipal law, or from both together,or in the sense that the obligation gives a right to action in a court oflaw. Therefore we say that a true and proper obligation arises from apromise and contract of a king, which he has entered into with hissubjects, and that this obligation confers a right upon his subjects ;such is the nature of promises and contracts as we have, shown above ;and this holds even between God and man.
Now if the acts arc such as may be done by a king, but also by anyone else, municipal law will be binding in his case also ; but if they arethe acts of the king as king, municipal law does not apply to him.This distinction has not been observed with sufficient care by Vazquez.Nevertheless, from both these acts a legal action may arise, at least so farthat the right of the creditor may be declared ; but compulsion cannot followoti account of the position of the parlies with tvhom the business is conducted.For it is not permissible for subjects to compel the one to whom theyarc subject; equals, however, by the law of nature, have this rightagainst equals, and superiors against inferiors even by municipal law.”
The words italicised strongly support the view that there existed in theUnited Provinces as early as the seventeenth century a right to bring adeclaratory action against the government in respeet of a contractentered into with the government, although execution could not be.obtained upon the judgment. This bears a strong resemblance to thepractice in Ceylon described by Cayley C.J. in Jayaicardena v. Fernando 1and it may well be that had this passage from Grotius been drawn to.theattention of the Board in Appu’s Case they would have ascribed the thoucurrent practice in Ceylon to a Roman-Dutch origin.
The significance of Appu's Case is that it recognises the developmentof an indigenous common law of Ceylon by the decisions of the courts ofthat country even though the origin of a particular proposition of lawcannot be traced back to the Roman-Dutch law of the United Provincesin the eighteenth century. The judgment upholds those parts of thejudgments in Jatisz's Case and Fraser's -Case which recognised that thesubject could bring an action in contract against the Crown in Ceylonalthough it does not ascribe this, as the Court in Fraser's Case had done,to tho Roman-Dutch law in force in Ceylon under the Government of the
1 (1SS1) Supreme Court Circular p. 77.
I.OHD IMP LOCK—Kodecaicaz-an c. A.Uitney-Gene.'ul
315
United Provinces. It was not concerned with and casts no doubt on thecorrectness of those parts of the judgments in Jansz's Case and Fraser'sCase which held that unpaid salary due to a civil servant for servicesrendered during his period of service constituted a debt for which he wasentitled to Stic the Crown.
Consistently with the attitude adopted by the Board in Siman Appu'sCase to old established precedent in decisions of the courts of Ceylon itwould in their Lordships’ view be wrong after this lapse of time to departfrom the principle. laid down in Jansz’s Case and Frasers Case that acivil servant in Ceylon is entitled to sue the Attorney-General on behalfof I he Crown for arrears of salary.
In coming to the contrary conclusion in the instant appeal, theSupreme Court of Ceylon relied upon the decision of the Privy Council inthe Indian Case of High Commissioner for India v. Lull L In India,unlike Ceylon, the source of the common law is English conihionlaTv^ buton the assumption, which their Lordships think erroneous, that Fraser’sCase had been over-ruled by Appu's Case the Supreme Court concludedthat any right of the appellant to sue for arrears of salary fell to bedetermined by that branch of English law relating to the sovereignattributes or prerogative of the Crown which must have been introducedinto Ceylon as a necessary consequence of the transfer to the Crown ofsovereignty over the island. If this ascription of the origin of theappellant’s right of suit to English public law were right Fall’s Casewould have been very much in point and in view of the importanceattached to it in the judgment of the Supreme Court and the full argumentwhich has been addressed to them upon it, it is appropriate that theirLordships should deal briefly with it.
As has already been pointed out the current of authority for a hundredyears before 1020, though sparse, was to the effect that arrears of salaryof a civil servant of the Crown, as distinguished from a member of thearmed services, constituted a debt recoverable by Petition of Right.These authorities, including the decision of the House of Lords in Sittton v.
A. Q. 2, are conveniently summarised in a penetrating article by SirDouglas Logan on “The Civil Servant and his Pay” (1945) 61 L.Q.R. 260in which he commented on the decision in Lucas v. Lucas (1943 P. 6S),where Pilcher J., adopting the reasoning of Lord Blackburn in the Scotscase of Mulvenna v. Admiralty (1926 S.C. 842), reached a contraryconclusion.
Unfortunately, none of these earlier authorities was drawn to theattent ion of the Board in Lall's Case. Most of the argument and of thejudgment in that case dealt with the question whether the dismissal ofthe civil servant was void under the relevant statutory provisionsrelating to liis service, but the Board did decide that, notwithstandingthat his purported dismissal was void, he had no right of action forarrears of pay. Fall’s Case can be distinguished from the instant case in
1 (104S) A. I. R. <P. C.) 121.
* (1923) 39 T. L. R. 294.
3-fOLORD DIPLOCK—Kodecsivuran v. Altorney-Genentl
that the terras on which Mr. Lall was engaged contained no expressprovision as to the pay he was to receive for his services. But theBoard did not base their decision exclusively on tin's. They too adoptedas a correct statement of the law. the judgment of Lord Blackburn inMidvenna v. The Admiralty (ubi siijj).
Lord Blackburn’s reasoning in Mulvenna's Case had not been concurredin by the other two members of the Court of Session. Lord Sands andLord Ashmore, nor has it been subsequently treated in Scotland ascorrectly laying down the law. Sec Cameron v. Lord'Advocate (1052S.C. 1G5). The conclusion which Lord Blackburn reached was that it“ must be read, as an implied condition, into every contract between theCrown and a public servant, with the effect that, in the terms of theircontract, they have no right to their remuneration which can be enforcedin a civil court- of justice, and that their only remedy under their contract' lies in an appeal of an official or political kind ’ ”.
The only cases cited in si^port of this proposition were the well-knowncases which establish that the Crown has power to determine theemploj'ment- of a jmblic servant- at will. He treated as an ineluctableconsequence of this, too plain to call for further explanation, that a civilservant had no claim in law to arrears of salary accrued due before hisdismissal.
In their Lordships’ view this is a non sequitur. A right tc terminate acontract of service at will coupled with a right to enter into a freshcontract of service may in effect enable the Crown to change the terms ofemployment in fuluro if the true inference to he drawn from thecommunication of the intended change to the servant and his continuingto serve thereafter is that his existing contract lias been terminated by theCrown and a fresh contract entered into on the revised terms. But thiscannot affect any right to salary already earned under the terms of hisexisting contract before its termination.
In the opinion of their -Lordships Lord Blackburn’s reasoning inMidvenna’s Case is defective and his conclusion is contrary to authorityand is wrong. That portion of the judgment- in Call's Case which adoptsit as a correct statement of the law must be regarded as given per incur iamsince the relevant and prestigious authorities to the contrary appear notto have been cited to the Board.
Their Lordships will humbly advise Her Majesty that this ajipen 1should be allowed on the preliminary issue upon which alone it wasdecided by the Supreme Court.
Although in their Lordships’ opinion a civil servant in Ceylon doeshave a right of action against the Crown for arrears of salary whichaccrued due- during the currency of his employment, this answer to thepreliminary issue does not dispose of the Crown’s appeal to the SupremeCourt- from the judgment of the District. Judge. There arc the otherimportant constitutional issues to be decided upon which neither the.
Dingiri Amina v. Appuhamy
347
Supreme Court nor their Lordships have heard argument. As alreadyindicated, their Lordships would think it inapjiropriatc to enter uponany of these matters without the benefit of the considered opinion of theSupreme Court of Ceylon thereon. They accordingly express no opinionupon any of the other issues as to the constitutionality of the OfficialLanguage Act or the effect of Treasury Circular No. 560 of 4t-h December1961, or of any other material facts upon the plaintiff’s contract ofemployment-. The case should be remitted to the Supreme Court forfurther consideration of these other issues and their Lordships willhumbly advise Her Majesty accordingly.
The respondent must pay the costs of this appeal to their Lordships’Board and of the appeal to the Supreme Court.
Appeal allowed on a preliminary issue.