DR. I. GUNATILAKA v. VICE-ADMIRAL TISSERA, COMMANDER OF THE NAVY AND

001-SLLR-SLLR-2003-1-DR.-I.-GUNATILAKA-v.-VICE-ADMIRAL-TISSERA-COMMANDER-OF-THE-NAVY-AND-.pdf


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Dr. I. Gunatilaka v Vice-Admiral Tissera and Others
(Fernando, J.)
1
DR. I. GUNATILAKA
v.
VICE-ADMIRAL TISSERA,COMMANDER OF THE NAVY AND OTHERS
SUPREME COURTFERNANDO. J.GUNASEKERA, J., ANDWEERASURIYA, J.
SC APPEAL No. 76/2001CA APPLICATION No. 366/9911TH NOVEMBER, 2002 '
Writ of certiorari – Purported reduction of rank of Surgeon Lieutenant,Navy-Navy Commander’s competence to effect such reduction- Power of thecourt to quash such order.
The petitioner-appellant (the petitioner), a Medical Graduate of a RussianUniversity obtained temporary registration as a Medical Officer under section31 of the Medical Ordinance (‘The Ordinance”). Section 31 provides that a per-son who is not qualified to obtain “full registration” under section 29(1), is enti-tled, on production of a certificate from the Director of Health Services that heis in employment of the Government as a Medical Officer, to temporary regis-tration for the period of his employment under the Government.
The petitioner responded to an advertisement by the Navy calling for applica-tions for the post of Surgeon Lieutenant. The advertisement states, inter alia,that full registration at the SLMC (Sri Lanka Medical Council) viz. under sec-tion 29(1) of the Ordinance, was a requirement. It also states that “those whohave temporary registration may also apply”
After interview, the petitioner was informed by a message on 16.01.1997 fromthe Navy Headquarters that he had been recruited to the Navy as a commis-sioned medical officer under the rank of Surgeon Lieutenant. He took his oathof allegiance and office on 16.01.1997 and assumed office. Thereafter, anoth-er message was sent dated 06.02.1997 to “correct” the original message byspecifying his rank as “Acting Surgeon Lieutenant”. Five days later a Navyidentity card- was issued to the petitioner describing his rank as “SurgeonLieutenant”.
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In consequence of inquiries by the petitioner he received a .copy of a letterdated 03.09.1998 from the Commander stating that he was recruited in an act-ing capacity as he could not be confirmed as “Surgeon Lieutenant” as he hadnot passed the swimming proficiency test. When the petitioner’s lawyersthreatened legal action, the Commander by a letter dated 09.03.1999 notifiedthat according to a memorandum dated 07.05.1996 issued by theCommander, persons with temporary registration could only join as ActingLieutenant and those having full registration under section 29(1) of theOrdinance were appointed Surgeon Lieutenant; and that a clerical mistake inthe first message had been corrected by the second.
Held :
There is no rank of ‘Acting Surgeon Lieutenant” in the Navy; conse-quently, the respondents were unable to produce a commissionappointing the petitioner to such rank.
Under section 161(1)(a) of the Navy Act, it is only the Minister who canmake regulations in regard to appointments and promotions in theNavy. Accordingly the Commander’s memorandum of 07.05.1996 hadno binding force.
The advertisement invited doctors to join as “Surgeon Lieutenants”including those who may have “temporary registration”. There was noindication that “temporary registration would be given lower priority ora lower rank or that full registration must be obtained later. Only a fur-ther “medical test” was stipulated.
The petitioner was entitled to a quashing of the impugned message of09.02.1997, the decision dated 09.03.1999 and the Commander’smemorandum of 09.05.1996.
Per Fernando, J.
“the principal relief sought by the petitioner was not to grant an
appointment or a commission but the quashing of the purported “cor-rection (which would automatically “restore” his rank of SurgeonLieutenant). The Court of Appeal erred in refusing that relief on theground that it had no power to give appointments to the Armed Forces.”
APPEAL from the judgment of the Court of Appeal.
Cases referred to :
Dissanayake v Kaleel (1993) 2 Sri LR 135, 187-192
Weerasinghe v Gamage SC 681/2001 SCM 19.9.2002
Sanjeewa Jayawardena for petitioner-appellant.
Harsha Fernando, State Counsel for respondents.
Cur.adv.vult
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Dr. /. Gunatilaka v Vice-Admiral Tissera and Others
(Fernando, J.)
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December 9, 2002
FERNANDO, J.
This is an appeal against the judgment of the Court of Appealrefusing an application for Certiorari by the Petitioner-Appellant(“the Petitioner”) to quash an order of the 1st Respondent-Respondent who was then the Commander of the Navy (“theCommander”), which order, according to the Petitioner, effected areduction in his rank. The present Commander was later added asa Respondent.
The Petitioner, having obtained a medical degree from aRussian University, obtained “temporary registration” under section31 of the Medical Ordinance from the Sri Lanka Medical Council(“SLMC”) in July 1996. In September 1996 he responded to anadvertisement by the Navy calling for applications for recruitmentas “Surgeon Lieutenant”:
"If you are a MBBS or equally qualified Doctor, here’s your chance toachieve the highest recognition in this noblest of professions. Comejoin us as a Surgeon Lieutenant
Vacancies for Medical Officers/Dental Officers
ELIGIBILITY
OTHER FACILITIES
aa
b……b
cc
d. Full registration at the SLMC as a d
Medical/Dental practitionere
PAYThose who have
TEMPORARY REGIS-
TRATION MAY ALSO
APPLY
Selected candidates will
be required to pass a
Medical Fitness Test to
the satisfaction of the
Commander of the Navy
Closing date”
The Petitioner was interviewed, and was thereafter informedby a message dated 16.1.97 from Navy Headquarters that he had
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been recruited to the Navy as a commissioned medical officer andthat his rank was Surgeon Lieutenant. He took his Oaths ofAllegiance and Office on 16.1.97 and assumed duties.
Shortly thereafter another message dated 6.2.97 purported to“correct” the original message, by specifying his rank as “ActingSurgeon Lieutenant”.
It had therefore to be assumed that a commission had beenissued in respect of the Petitioner prior to 16.1.97. Indeed even in thewritten submissions filed on behalf of the Respondents in this case ithas been submitted that the Commander did not interfere with thecommission of the Petitioner; that there has been no withdrawal ofthe commission nor an appointment to another rank; and that theoriginal message contained a typographical error which was correct-ed within a month. The Petitioner’s position is that no commissioncould have issued in respect of an appointment to the rank of ActingSurgeon Lieutenant, and the Respondents do not claim that anysuch commission had been issued..
Despite the second message, four days later a Navy IdentityCard was issued to the Petitioner describing him as “SurgeonLieutenant”.
The Petitioner was not informed of the reason for this “correc-tion”. He claimed that he made inquiries orally from higher officers,but that no reason was given for the move to reduce his rank. In May1998 he wrote to the Commander asking for the reason for the reduc-tion to “Acting Surgeon Lieutenant”; he received no reply. He wroteagain in July and August, adding that he had been assured at theinterview that he would be enlisted as a Surgeon Lieutenant: again,there was no reply or denial. He then received a copy of a letter dated3.9.98 from the Commander stating that he had been recruited asActing Surgeon Lieutenant and that he could not be confirmed asSurgeon Lieutenant as he had not passed the swimming proficiencytest; by letter dated 18.9.98 he protested that he had already beenappointed to that rank, and drew attention to his previous letter. Thatletter as well as letter dated 31.12.98 from his attorneys-at-lawreceived no response, and by letter dated 3.2.99 his attorneys-at-lawthreatened legal action if there was no response within ten days. Itwas only then that the Commander, by letter dated 9.3.99, disclosed
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the reason: that he had only “temporary registration”: that accordingto a memorandum dated 7.5.96 issued by the Commander he couldonly join as an Acting Lieutenant; and that a clerical error in the firstmessage had been corrected by the second. According to that mem-orandum, the procedure for the direct enlistment of medical officerswas that those having “temporary registration” could be enlisted asActing Lieutenant, and those having “full registration” as SurgeonLieutenant. “Full registration” means registration under section 29(1)of the Medical Ordinance.
The Petitioner applied for Certiorari to quash the decisions of
and 9.3.99 as well as the memorandum of 7.5.96, dr in thealternative for Mandamus to compel the Repondents to restore thePetitioner’s rank of Surgeon Lieutenant.
In its judgement delivered on 29.5.2001 the Court of Appeal
held:
‘The Petitioner in this case in response to an advertisement…. callingfor doctors to join the Navy as Surgeon Lieutenant applied and wasgiven the appointment. In terms of the advertisement the Petitioner wasoriginally appointed as a Surgeon Lieutenant by document marked P3.However, shortly thereafter he had been informed that his rank hadbeen changed to acting Surgeon Lieutenant. The Petitioner has writtenseveral letters protesting and demanded the reason….TheRespondents have not even bothered to reply the Petitioner until he
wrote to them through his AttorneysSubsequently the Navy
Commander has writtenstating that the first appointment was given
due to a mistake and according to the regulation they could give only[an] acting appointment. It is to be noted that the. advertisement…nowhere stated that the initial appointment would beonly an acting appointment. In the circumstances it is not fair to call pro-fessionals to take appointments and to give them acting appointmentsand keep them in suspense. We are mindful of the fact that this Courthas no power to give appointments to Armed Forces. However…. weare of the view that the Navy has acted unreasonably and that this con-duct has forced the Petitioner to seek the intervention of this Court. Forthe reason stated earlier we dismiss this application [but] order the 1stRespondent to pay a sum of Rs. 10,000 to the Petitioner as costs."[emphasis added]
I must straightaway observe that the principal relief sought bythe Petitioner was not the grant of an appointment or a commission,but the quashing of the purported “correction” (which would auto-
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matically “restore” his rank of Surgeon Lieutenant). The Court ofAppeal erred in refusing that relief on the ground that it had nopower to give appointments to the Armed Forces. But for that mis-take it is clear that relief would have been granted.
Learned Counsel for the Petitioner submitted that theimpugned “correction” was fatally flawed for several reasons:
There was no rank of “Acting Surgeon Lieutenant” providedfor in the Navy Act and the regulations made thereunder, and the“correction” was therefore illegal and invalid, being an appointment toa non-existent rank; no commission could have been issued on thebasis of that “correction”, and if issued would patently be a nullity;
Even if there had been such a rank, the Petitioner’s rank of“Surgeon Lieutenant” could not have been altered to his detrimentafter he had assumed duties, without disclosing the reason for suchchange and without first giving him an opportunity of being heard;
The Petitioner had initially been given no reason; and 18
months later the reason alleged was the lack of proficiency in swim-ming. It was only after two years that an entirely different reason -the need for “full registration” – was given. That reason was unten-able because it was based on the assumption that the memorandumof 7.5.96 was binding, although it had no legal basis. Wider eligibilitycriteria had been lawfully Stipulated in the September advertisement;and$
‘Temporary registration” under section 31 of the MedicalOrdinance entitled the Petitioner to practise medicine whilst in theservice of the Government – which included the Navy. Accordingly, itwas both lawful and proper to stipulate that as one of the criteria.
Learned State Counsel on behalf of the Respondents wasforced to concede that the Navy Act and the regulations made there-under did not provide for the rank of “Acting Surgeon Lieutenant”.“Acting” appointments were authorized in regard to the rank ofLieutenant-Commander and above, and to the rank of Sub-Lieutenant, but not to the rank of Lieutenant. He argued, however,that the Commander had in fact appointed the Petitioner to the rankof “Surgeon Lieutenant” although on an acting basis pending “fullregistration”. He persisted in this submission although it was pointed
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out to him in the impugned message it was clearly stated that thePetitioner’s (corrected) rank was “Acting Surgeon Lieutenant”. TheCommander’s affidavit, too, repeatedly referred to the Petitioner’srank in the same way. It is because there is no such rank that theRespondents have been unable to produce a commission appointingthe Petitioner to that rank. The Commander has ventured the expla-nation that there had been a clerical error. That implies that a deci-sion had been taken to give the Petitioner an “acting” appointment;that such decision was correctly recorded in one document or anoth-er; but that in the commission there was an inadvertent omission ofthe reference to “acting”. Had there been any such error, that wouldhave been clear upon an examination of the original commission andthe antecedent correspondence leading up to the issue of that com-mission. The Respondents have failed to produce those documents,and the inference is that they do not disclose a clerical error.
Learned State Counsel concedes that the Petitioner had beendenied natural justice, but argued that since the “correction” hadbeen made within a month the Petitioner had not suffered any preju-dice; and that in any event his remuneration was the same. The lackof a hearing would not be fatal if a hearing would have been a use-less formality which could not possibly have made a difference (seeDissanayake v Kaleel (1). That is hardly the case here: if given a hear-ing the Petitioner could have pointed out the legal position, and couldhave relied on the representations which he said had been made tohim at the interview. In any event, pecuniary loss is not the sole testof prejudice. The Petitioner had to choose between staying on in alower position and leaving; if he had left the Navy on account of theapparent reduction in rank, any prospective employer would haveasked him why he had been reduced in rank, and would hardly havebelieved that the Navy had reduced him in rank without reason, andmight well have suspected that there had been some shortcoming ornon-disclosure on his part. A short period of employment without agood reason is generally a blot on a curriculum vitae. As I had occa-sion to point out in Weerasinghe v Gamage (2>, an employer mustexercise his powers with due care and restraint, for just as it is implic-it in every contract of service that the employee shall be loyal, shalltreat his superiors with due respect, and shall guard the reputation ofthe employer, so also it is implicit that the employer in his treatment
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of employees shall have care for their dignity and reputation and shallnot cause them unnecessary personal distress and prejudice. Oftendistress and prejudice cannot be avoided, but where it can be avoid-ed, it must be avoided. The Petitioner was entitled in law to a fullexplanation, and as a matter of courtesy to an expression of regretfor the alleged error. The impugned message was hardly the kind ofsignal which builds morale and inspires loyalty and dedication, espe-cially in those called upon to risk their lives in the course of duty; andthe prolonged failure to disclose a reason would have added to thePetitioner’s stress and frustration, liable to result in poor performanceof duties to the detriment of the Navy.
Under section 16(1)(a) of the Navy Act, it is only the Ministerwho can make regulations in regard to appointments and promotionsin the Navy. Accordingly, the Commander’s memorandum of 7.5.96had no binding force. But learned State Counsel contended that theNavy was entitled to insist upon “full registration”, because, heargued, “full registration” was all that had been specified under“Eligibility”. The advertisement taken as a whole does not bear outthat submission: all medical doctors were invited to join as SurgeonLieutenants, including those who only had “temporary registration”,and there was nothing which even hinted at the possibility that “tem-porary registration” would be given lower priority or might result in alower rank or position, or that “full registration” must be obtained evenlater. Only a future “Medical Fitness Test” was stipulated. There wasthus no ambiguity in the advertisement. Had there been an ambigu-ity, that would have had to be construed contra proferentem, and infavour of the Petitioner. A notice calling for applications for employ-ment must be a clear guide for the honest applicant, and public insti-tutions and their advisers must not resort to strained constructions inorder to convert them into devious snares for the unwary.
Finally, learned State Counsel submitted that medical officerswith “temporary registration” employed in the Department of Healthcome under the supervision of the Director of Health Services, whilethose in the Navy do not, and that accordingly the Navy was justifiedin taking such officers on an acting basis, until they obtained “full reg-istration”. Section 31 of the Medical Ordinance, as amended by ActNo. 30 of 1987, provides that a person who is not qualified to obtain“full registration” under section 29(1), is entitled, on production of a
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certificate from the Director of Health Services that he is in theemployment of the Government as a medical officer, to "temporaryregistration” for the period of his employment under the Government.No condition or restriction is stipulated. If the Navy wished to imposeany condition, it should have done so in the advertisement or at thestate of appointment. Not having done so, it could not lawfully do sounder the guise of “correcting” an error.
I therefore allow the appeal and set aside the order of theCourt of Appeal in so far as it dismissed the Petitioner’s application.I grant the Petitioner Certiorari to quash the impugned message9.2.97, the decision contained in the letter dated 9.3.99, and theCommander’s memorandum of 9.5.96. The Navy and itsCommander will accordingly treat the Petitioner, for all purposes, ashaving been a commissioned medical officer holding the rank ofSurgeon Lieutenant from 16.1.97, and will furnish to the Petitionerwithin one month a true copy of the commission referred to in themessage of 16.1.97 and of the Gazette in which it was published.The Petitioner will be entitled to costs in this Court in a sum of Rs.40,000 payable by the State.
GUNASEKERA, J.-I agree.
WEERASURIYA, J.-I agree.
Appeal allowed.
Writ of Certiorari granted.