051-SLLR-SLLR-1997-V-1-DHANAPALA-v.-DISSANAYAKE-PROVINCIAL-DIRECTOR-OF-EDUCATION-AND-OTHERS.pdf
DHANAPALA
v.
DISSANAYAKE, PROVINCIAL DIRECTOROF EDUCATION AND OTHERS
SUPREME COURT.
DR. AMERASINGHE, J.,
RAMANATHAN, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. 145/95.
FEBRUARY 7 AND MARCH 24, 1997.
Fundamental Rights – Article 12(1) of the Constitution – Legitimate expectation -Provincial Council public service – National Public Service – Powers of PublicService Commission – Position of persons in the National Service not secondedbut serving in Provincial Council public service to assist or to support.
There are two kinds of officers who are subject to the power of transfer anddisciplinary control of a Provincial Council.
Those who belong to a National Service but serving a Provincial Council onsecondment; and
Those who belong to the provincial public service.
A distinction is made between whose who belong to a National Service but servea Provincial Council on secondment on the one hand and those who aremembers of the provincial public service. The former have a right of appeal to thePublic Service Commission in respect of all matters connected with theiremployment, for, although for the time being they are subject to the powers oftransfer and disciplinary control of the Provincial Council they serve, they arenevertheless members of a National Service coming therefore within the PublicService Commission. Those who belong to the provincial public service too havea right of appeal to the Public Service Commission but only against an order ofdismissal.
There is a third group of officers like the class of officers to whom the petitionerbelongs, who have not been seconded nor serve as members of the provincialpublic service. This third group belong to the National Service but their serviceshave been made available to Provincial Councils to support or assist them but notupon the basis of secondment.
Persons in the third group would remain subject to the powers of transfer anddisciplinary control of the Public Service Commission. Hence the transfer of the
petitioner by the Secretary of the Education Service Board of the Public ServiceCommission to the Ministry of Education and Higher Education from the postof Deputy Director of Education in charge of the Dimbulagala Division held onappointment by the North Central Provincial Director of Education and Secretary,Ministry of Education, Health etc. of the North Central Provincial Council, wasvalid and in no way frustrates his legitimate expectations.
APPLICATION for relief for infringement of fundamental rights.
C. Seneviratne, P.C. with Nigel Hatch tor petitioner.
Kolitha Dharmawardene, D.S.G. for respondents.
Cur. adv. vutt.
April 04, 1997.
DR. AMERASINGHE, J.
In 1967, the petitioner was appointed a Grade III Sinhala Teacherat the Aluthwewa Vidyalaya by the Chief Education Officer,Polonnaruwa. In 1981 he was promoted to the rank of Grade IVPrincipal. In 1982 he was promoted to the rank of Grade V Principaland appointed Education Officer Polonnaruwa. In 1985 he wasappointed a Class III Officer of the Sri Lanka EducationAdministrative Service. In 1988 he was appointed Principal ofWelikanda Maha Vidyalaya. All the appointments and promotionssince 1981 were made by the Education Service Board of the PublicService Commission.
The petitioner served as Education Officer of the North CentralProvincial Council from July to September 1989 and in theDimbulagala Division Education Office from 1 September 1989 toMarch 1993. In 1992, while he was at Dimbulagala, he was promotedto Class II of the Sri Lanka Education Administrative Service by theEducation Service Board of the Public Service Commission. In 1993,he was appointed from time to time to serve as Deputy Director ofEducation of the Lankapura Pradeshiya Education Office, the ElaheraPradeshiya Education Office, the Dimbulagala Pradeshiya DivisionOffice, and at Mannampitiya. In 1994 he was appointed DeputyDirector of Education in charge of the Dimbulagala Division. Theappointments and transfers between 1989 and 1993 were made by
the Pradeshiya Education Director. The 1993 and 1994 appointmentsand transfers were made by the North Central Provincial Director ofEducation and the Secretary, Ministry of Education, Health etc of theNorth Central Provincial Council. By a letter dated 31 March 1995, theSecretary of the Education Service Board of the Public ServiceCommission transferred the petitioner to the Ministry of Educationand Higher Education. The Fourth respondent was appointed by theEducation Service Board of the Public Service Commission to fill thevacancy created by the transfer of the petitioner. The petitioner in hisletter dated 18 April 1995 addressed to the Secretary, EducationService Board of the Public Service Commission appealed againstthe transfer, but received no response.
The petitioner alleged that his fundamental rights guaranteed byArticle 12(1) of the Constitution have been violated by his transfer tothe Ministry of Education and Higher Education. The petitioner doesnot deny that he was and is a member of the Sri Lanka AdministrativeService, but he maintains that he was "released from or about 1988 tothe service of the [North Central] Provincial Council in terms of theapplicable State Administrative Circulars],” namely PublicAdministration Circulars No. 10/89 and No. 10/89 (1). He states thatin terms of Public Administration Circular No. 25/91 dated 03 July1991, officials released to a Provincial Council would serve thatCouncil for a period of four years; at the end of that period, the officerwas entitled at his request to have his service with the Councilextended. Until such a request was made, he could not betransferred without the approval of the Head of the relevantDepartment of the Provincial Council. He had neither requested atransfer, nor had the transfer been made with the approval of theHead of his Department. On the other hand, the Additional Secretary(Education), on the directions of the Minister of Education of theProvincial Council, had objected to the transfer of the petitioner. Thepetitioner maintains that the Secretary of the Education Service Boardhad no power to transfer the petitioner and frustrate his legitimateexpectation of serving the North Central Provincial Council.
While it is not in dispute that the petitioner did serve the NorthCentral Provincial Council and was appointed to various posts by that
Council, there was no evidence placed before us to show that he hadbeen released to serve the Provincial Council on secondment. All thathe has been able to do is to say that “to the best of his knowledgeand belief in October 1993 he signified for the first time his consent tobe released to the Central Provincial Council (sic.) on a letter dated19/10/1993 sent to the Deputy Director of Education DimbulagalaEducation Office of the North Central Province on which the DeputyDirector of Education Dimbulagala who was the head of theDepartment that the petitioner had served in had approved the saidextension of the petitioner’s service,” and to submit a copy of theletter dated 19 October 1993. That document (P9) is a letter from theDimbulagala Pradeshiya Education Office requesting the petitioner interms of Circular Nos. 10/89 and 10/89 (1) to signify his agreement toserve that institution. That document is of little or no value, for it doesnot evidence the fact that the petitioner had been seconded forservice in the North Central Provincial Council. Indeed, the petitioner,although he submitted the letter, states in paragraph 17 of his petitionthat the basis of the letter was flawed by “inadvertence or mistake”.
If the petitioner had not been released on secondment in terms ofthe prescribed manner to serve in the Provincial Council of the NorthCentral Province, then he would have been subject to the authority ofthe Education Service Board of the Public Service Commission andcould legitimately have been transferred by that Board. If he hadbeen released, he might perhaps have come under the authority ofthe Provincial Council until 23 April 1993. After that date, however, hewould, it seems, have been subject to the control of the EducationService Board even if he had been released on secondment, forPublic Administration Circular No. 56/89 (1) issued on 23 April 1993states that to be the case. At the date of the letter intimating histransfer, namely 31 March 1995, the petitioner was subject to theauthority of the Education Service Board of the Public ServiceCommission in terms of Circular No. 56/89 (1).
However, learned counsel for the petitioner submitted that ifCircular No. 56/89 (1) did permit the Education Service Board “totransfer any officer in the all-island services during their period ofrelease to the Provincial Public service unilaterally, then … this
circular is contrary to the Constitution which by the 13th AmendmentProvincial Council List has vested the transfer and disciplinary controlof such officers in the Provincial Council. This circular can only bemade operative if such transfers are made on the recommendation orapproval of the Provincial Public Service or the relevant ProvincialMinistry. Further, the question arises whether the consent of theofficer should not be obtained if he is to be transferred out of theProvince since his consent is obtained in respect of his transfer orappointment to the Provincial Public Service.”
The petitioner was neither transferred nor appointed to theprovincial Public Service, and therefore the question of obtaining hisconsent before he was transferred does not arise. He did serve theNorth Central Provincial Council under some arrangement or on thebasis of some tacit understanding, with regard to which the Courtwas not provided with any information. More importantly, there wasno evidence placed before us to show that the petitioner wasseconded in the manner prescribed by the relevant circulars to servethe Provincial Council, let alone being transferred to the provincialpublic service. The petitioner continued to be a member of the SriLanka Education Service and while he was serving in the ProvincialCouncil was promoted to Class II of that Service by the EducationBoard of the Public Service Commission.
Education and Educational Services are indeed placed on List 1(the provincial Council List) by the Thirteenth Amendment to theConstitution; but there is no unqualified devolution. List 1 states thatthe subject of education is devolved “to the extent set out inAppendix III". Appendix III.3 states as follows: “The transfer anddisciplinary control of all educational personnel, i.e. Teachers,Principals and Education Officers. Officers belonging to a NationalService but serving the Provincial authority on secondment will havethe right of appeal to the Public Service Commission. Officersbelonging to the provincial public service will have a right of appealto the Public Service Commission against dismissal.”
The first sight, the phrase “all educational personnel” wouldsuggest that each and every person, without exception, engaged in
providing educational services, whether as a teacher, principal oreducation officer, would in terms of Appendix 111.3 be subject to thepowers of transfer and disciplinary control of the relevant ProvincialCouncil.
However, the legal meaning of Appendix III.3 is that there are twokinds of officers who are subject to the power of transfer and-•disciplinary control of a Provincial Council: (1) those who belong to aNational Service but serving a Provincial Council on secondment;and (2) those who belong to the provincial public service. Adistinction is made between those who belong to a National Serviceand serve a Provincial body on secondment on the one hand, andthose who are members of the provincial public service. The formerhave a right of appeal to the Public Service Commission in respect ofall matters connected with their employment, for, although for the timebeing they are subject to the powers of transfer and disciplinarycontrol of the Provincial Council they serve, they are neverthelessmembers of a National Service coming therefore within the PublicService Commission. Those who belong to the provincial publicservice too have a right of appeal to the Public Service Commission,but only against an order of dismissal.
The petitioner does not belong to either class of officers referred toin Appendix 111.3; he has not been seconded nor is he a member ofthe provincial public service. He belongs, in my view, to a third group- those who belong to a National Service, but whose services havebeen made available to Provincial Councils to support or assist thembut not upon the basis of secondment. Persons in the third groupwould remain subject to the powers of transfer and disciplinarycontrol of the Public Service Commission.
In the circumstances, I am of the view that the transfer ofthe petitioner was valid and in no way frustrates his legitimateexpectations. The Secretary of the Education Service Board ofthe Public Service Commission has adduced evidence to establishthat other officers having the status of the petitioner havealso been transferred and that there has been no invidiousdiscrimination.
For the reasons set out above, I declare that the petitioner’sfundamental rights under Article 12 (1) of the Constitution have notbeen violated and make order dismissing the petition; but, havingregard to the important and debatable questions he has raised forconsideration, without costs.
RAMANATHAN, J. -1 agree.
WIJETUNGA, J. -1 agree.
Application dismissed.