JAYARATHNE v. WICKREMARATNE AND OTHERS

043-SLLR-SLLR-2003-V-2-JAYARATHNE-v.-WICKREMARATNE-AND-OTHERS.pdf


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JAYARATHNE
v
WICKREMARATNE AND OTHERS
COURT OF APPEALTILAKAWARDENA, J„ (P/CA) ANDWIJEYARATNE.J.
C.'A. 1349/01
SEPTEMBER 13, 2002 ANDJANUARY 23, 2003
Writ of certiorari to quash decision to pay pension – Writ of mandamus to paypension with effect from an earlier date – Petitioners’ entitlement to pension- Is it an absolute right? – Minute of Pensions – Does it confer any legalright?
Interpretation Ordinance, section 2 – What is written law? – Errors of law -Laches – Do laches stand against grant of relief? – Constitution, Article 55
Held:
Public servants have no absolute right to any pension or allowanceunder the regulations of the Minutes of Pension.
Minutes of Pension merely regulates the administration of pensions bythose in whose hands that duty is placed.
Under section 2 (kk) of the Interpretation Ordinance, the Minutes ofPension is.included to be “written law”. Therefore, the decision of theEducation Service Committee on the payment of pension is one regu-lated by ‘written law of the country.’
In terms of the Minutes of Pension there is no regulation empoweringor authorising the authorities determining the grant of pension to differthe date of payment of pension from the date of retirement.
Per Wijayaratne, J.,
“The Education Services Committee has made its decision (18.5.1984) toretire the petitioner and grant his pension after 11 years of his vacation of post(15.7.1983). There is no rational basis or reason to relate the effective date ofpayment of pension to the date of decision made after 11 years; the decisionis both irrational, arbitrary and unreasonable.
Jayaratne v Wickremaratne and others
(Wijayaratne. J.)
277
CA '
Per Wijayaratne J.,
“Even when the petitioner is entitled to the reiief on grounds of error of law, thepetitioner is guilty of laches which stands against the grant of relief by way ofwrit of certiorari.
APPLICATION for writs in the nature of certiorari and mandamus.
Cases referred to:
Gunawardena v Attorney-General- 49 NLR 359
Attorney General v Abeysinghe – 78 NLR 361
R v Criminal Injuries Compensation Board, Ex parte Lain – (1967) 2All ER 770
Dissanayake v Fernando – 71 NLR 356
Sarath Hulangamuwa v Siriwardena – (1986) 1 Sri LR 275
Jayaweera v Assistant Commissioner of Agrarian Services (1996) 2Sri LR 70
Nuwanthi Dias for petitioner.
Janak de Silva, State Counsel for respondents.
Cur adv vult
May 8, 2003WIJAYARATNE, J.
This application is made by the petitioner seeking a mandatein the nature of a writ of certiorari quashing the decision to pay himhis pension with effect from 18.5.1994 in terms of documentsmarked P1 and P2. He also seeks a mandate in the nature of a writof mandamus directing the respondents to pay him his pension witheffect from 15th July 1983 being the date of his retirement. Theapplication is made against first to third respondents as the chair-man and members of the Educational Services Committee of thePublic Service Commission, 4th respondent as its Secretary andthree other officers of the relevant state agencies.
The facts relevant are that the petitioner who joined the stateservice as a Instructor in Electrical Engineering in the TechnicalCollege of Warakapola in the year 1968 was functioning as the
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Senior Instructor at the time of vacation of his post on 15.7.1983.He left the country seeking foreign employment without leave ofabsence from his post. Having returned to the country in the year1987 he made an appeal to 4th respondent for reinstatement/retire-ment in lieu of reinstatement. The Education Service Committee ofthe Public Service Commission by its decision dated 03.06.1994(P1) decided to:
Retire the petitioner as an alternative to vacation of post fromthe date of such vacation
Pay the petitioner his pension with effect from 18.05.1994
Deduct 1% from the petitioner’s pension.
The decisions so made were conveyed to him by letter dated15.05.1997 (p2) and the 7th respondent has awarded petitioner pen-sion with effect from 18.05.1994 (p3). The petitioner appealed to the4th respondent by letter dated 20.03.2000(p4) and the refusal toentertain such appeal was communicated to him by letter dated
(p5).
The petitioner complains that the decision to award a pensionafter 11 years of the retirement is illegal, arbitrary, unfair, unreason-able and irrational and seeks the intervention of this court by way ofreview of such decision and issue of mandates of writs as aforesaid.Given notice of the application, the respondent represented by theAttorney General resisted the application through affidavits filed by the4th and 5th respondents, who produced documents marked 5R1 to5R12. The decision to retire the petitioner with effect from the date ofhis vacation of post and the award of pension effective from the dateof the decision ie, 18.5.1994 and the background facts were admitted.It is urged that in terms of regulation 1 of Minutes of Pension thepetitioner has ‘no absolute right’ to a pension and in terms of Article55 (5) of the Constitution this court has no jurisdiction or power toinquire into, pronounce upon or in any manner call in question thedecision of the Education Service Committee of the Public ServiceCommission and in any event the petitioner is guilty of undue delaywhich stands against the grant of relief by way of writs given as dis-cretionary relief. The 5th respondent further adverted to the pastrecord of service of the petitioner and disciplinary steps taken againsthim.
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Jayaratne v Wickremaratne and others
CA(Wiiavaratne, J.);
In his counter affidavit the petitioner denied all and singular the.matters urged by the respondent and attributed malice and ill-will tothe 5th respondent who referred to event of history of petitioner’s ser-vice which is not relevant to the matter in issue. In support of his con-tentions he also produced documents marked P6 and P7.
At the hearing the petitioner argued that there is no provi-sions in the Minutes of Pension authorizing the respondent to differthe date of payment of pension from the date of retirement andhence the decision is contrary to law and irrational and arbitrary..
The respondents argued that the petitioner has no absolute or legal 60right to a pension and thus the petitioner has no legal right to claima pension for the period since vacation of post to date of the deci-sion. It is further urged that the petitioner who was copied the let-ter of 4th respondent dated 03.06.1994 (P1) was aware of this deci-sion but took no steps to challenge the same by way of writ. Thecommunication of such decision by the 5th respondent was on15.05.1997 (P2) and the petitioner has preferred this application inthe year 2001, after a period of seven years from the date of theimpugned decision. Even if his second appeal is to be considereda step he has taken in having this decision reviewed, it was only on 7020.03.2000, again after a period of three years.. The petitionertherefore is not entitled to the-relief of writ of certiorari on groundsof undue delay.
The respondent further submitted that Article 55(5) of theConstitution which was operative as at the date of invoking thejurisdiction of this court, has ousted the jurisdiction of this court toinquire into or pronounce upon any matter of the nature of a deci-sion of the Education Services Committee of the Public ServiceCommission.The learned counsel for the respondent referred thiscourt to several decisions of this court and the Supreme Court hold- soing that undue delay stands against the grant of relief by way ofwrits.
It is pertinent in my view to first examine the position withregard to the petitioner’s entitlement to the pension as claimed. Ihad the benefit of several decisions of the Supreme Court on thequestion of the right of a retired government servant to the pension.That the petitioner has no right to the pension is based on regula-tion 1 of the Minutes of Pension which states:
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“Public servants have no absolute right to any pension orallowance under these rules, and the crown retains the power todismiss a public servant without compensation.”
This position is commented upon and decided in the case ofGunawardane v Attorney General wherein Gratiaen, J comment-ed that:
minutes of pension does not confer upon a retired gov-ernment servant any legal right in respect of pension.
However it was held in the same decision that:
“minutes of pension merely regulates the administration ofpensions by those in whose hands that duty is placed.”
In terms of the provisions of section 2 subsection KK of theInterpretation Ordinance “the minutes of pension” is included inand meant to be ‘written law' of the land. Accordingly the decisionof the Education Services Committee on the payment of pension isone regulated by ‘written law’ of the country. In terms of minutes ofpension there is no regulation empowering or authorizing theauthorities determining the grant of pension to differ the date ofpayment of pension from the date of retirement. The learned coun-sel for the respondents who argued that the petitioner has no legalright to the pension does not refer this court to any provisionsauthorizing such a decision either. The respondents take up theposition that it is the practice of the Education Services Committeeto grant the pension effective from the date of the decision to retirea public servant. There is not adduced any basis for such a courseof action, hence it can only be classified as arbitrary and ‘irrational’,because in the event of the Education Committee for whatever thereason delays its decision till the death of a public servant, even ifthe committee granting the pension would effectively deny him thebenefit of his pension. In the instant case the Education ServiceCommittee has made its decision to retire the petitioner and granthis pension after 11 years of his vacation of post. There is no ratio-nal basis or reason to relate the effective date of payment of pen-sion to the date of decision made after 11 years. Hence the deci-sion of the Education Services Committee (P1) is both irrational,arbitrary and unreasonable.
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Jayaratne v Wickremaratne and others
(Wijayaratne, J.)
281
In view of the dictum of Gratiaen. J, if minutes of pension ismeant to regulate the administration of pensions by those in whosehands that duty is placed, the Education Services Committee grant-ing the petitioner his pension from the date of its decision and notwith effect from the date of his retirement, it has no authority of anyregulations in the minutes of pension to do so; such a decisiontherefore is “an error of law”.
In the case of Attorney General v Abeysinghe <2> too it washeld that ‘a retiring public servant has no absolute or legal right topension’. However this decision can be differentiated because in itwas considered only the question of the respondent’s entitlementto get declaratory relief from the District Court on his entitlement tothe pension., which according to the rule has to be based on a legalright. This same rule cannot apply in the present case which is anapplication for grant of relief by way of writ of certiorari and man-damus in the exercise of writ jurisdiction of this court. This decisionof A.G. v Abeysinghe (supra) refers to the decision of R v CriminalInjuries Compensation Board Ex parte Lain,(3)Their Lordships held.
“That if there was an error of law, certiorari would have
. been granted even though there was no legal right to com-pensation under the scheme.”
Accordingly in this present application, even though the peti-tioner has no legal right to the pension, there is present an error oflaw in the decision granting the pension with effect from a dateother than the date of retirement, and the same has-no authority ofany regulation under the minutes of pension. This fact would makethe relief of certiorari available to a party placed in such a situation.
Even when the petitioner is entitled to the relief on grounds oferror of law, the question remains whether he invoked the jurisdic-tion of this court without ‘undue delay’ entitling him to the grant ofsuch relief. The undisputed fact of the matter of this application isthat the same is made after seven years of the impugned decision.His second appeal to the 4th respondent in the year 2000 cannot inmy view take him out of this undue delay because the 5th respon-dent’s communication was three years prior in time. Besides, thepetitioner did not honestly disclose the fact that his recourse to writjurisdiction of this court was only as a second thought after failing to
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collect his pension without delay. This position is well demonstrat-ed by his own document P7 according to which the petitioner'sgrievance at the time was only the delay in payment of his pensionand not the basis of the payment of pension according to theimpugned decision. This letter is dated 18.8.1998 and the presentapplication is still three years, later. The petitioner is thus guilty oflaches which stand against the grant of relief by way of writ of cer-tiorari. .
Several decisions of
Dissanayake v Fernando (4)
Sarath Hulangamuwa v Siriwardane (5)
Jayaweera v Asst. Commissioner of Agrarian Services
Ruled that undue delay stand against the grant of relief in awrit application.
Accordingly I hold that the petitioner is not entitled to thegrant of relief claimed on grounds of undue delay on his part in thepresentation of this application to the court. This compels this courtto refuse his application. In view of same the question of jurisdictiondoes not call for any determination.
Accordingly the application is dismissed with costs.TILAKAWARDANE, J. (P/CA) – I agree.
Application dismissed.
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Mageswaran v University Grants Commission and Others
(Srioavan, J.)
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The petitioner sought a writ of mandamus directing the 1 st respondent to payto her all the monies due on account of the Universities Provident Fund con-tributed by her husband. The petitioner's husband had not submitted any nom-ination form to the University.
Held:
The petitioner could recover the Provident Fund contributions of her latehusband only if she has been nominated in terms of section 93(2A)(a).
The document relied upon by the petitioner is a private and an internalcommunication between the petitioner’s husband and the University. It isnot a nomination made in terms of section 93 (2A)(a).
The existence of legal rights and statutory duties are essential conditionsfor the issue of Mandamus. The 1st respondent is unable to perform thestatutory duty cast upon it in the absence of a valid nomination which is acondition precedent to the exercise of the jurisdiction.
APPLICATION for a writ of mandamus
Cases referred to:
1. R v National Joint Council for Dental Technicians exparte Neate (1953)1QB 704 at 707.
Dr. Jayampathy Wickremaratne P.C with Pubudini Wickremaratne forpetitioner.
M.N.B. Fernando, Senior State Counsel for 1st respondent.
R.E. Thambiratnam with Dr. T. Thirunaukarasu for 2nd, 3rd, 5th and 6th res-pondents.
Cur.adv.vult
July 29, 2003SRIPAVAN, J.
The petitioner seek a writ of mandamus directing the 1strespondent to pay to the petitioner all the monies due on accountof the Universities Provident Fund contributed by her husband,namely, Professor S. Mageswaran including interest. The basisupon which the petitioner seeks the aforesaid remedy is that thepetitioner’s husband by the document marked P2 informed theUniversity of Jaffna that the petitioner would be the beneficiary tohis Provident Fund.
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It was not in dispute that the petitioner’s husband who diedon 2nd February, 1998 did not leave any last will. Upon the deathof the petitioner’s husband the Financial Controller of the 1strespondent on 22.09.1998 (1R6) requested the Bursar of theUniversity of Jaffna to submit the Provident Fund refund papersand the original Nomination Form to enable the 1 st respondent torefund the Provident Fund contributions. The Bursar of theUniversity of Jaffna by letter dated 25.09.1998 (1R7) informed theFinancial Controller of the 1st respondent that the petitioner’s hus-band did not submit any Nomination Form to the University ofJaffna. In view of the claims made by the brothers and sisters of
Professor Mageswaran who are 2nd to the 7th respondents to thisapplication, the 1st respondent requested the petitioner to obtainletters of administration from a court of Competent Jurisdiction andto produce same to the 1 st respondent for the payment of theProvident Fund contributions lying to the credit of late ProfessorMageswaran. (P4)
It is common ground that the Universities (Amendment) Act,No.1 of 1995 was brought into operation on 03.01.1995. Section93 of the said Act read as follows:-
”2A. (a) A contributor may nominate a person (hereinafter inthis section referred to as “a nom/nee”) to whom themonies lying – to the the credit of the contributor’saccount in the provident fund shall be paid upon thedeath of such contributor.
A nomination made under paragraph (a) shall haveeffect notwithstanding anything to the contrary in thelast will of the nominator.

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Where a contributor dies while in the service of the
Commission or a Higher Educational Institution, theSecretary of the Commission shall, subject to the
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provision of section 94, pay the full amount lying tothe credit of his account in the Provident Fund,together with the accumulated interest thereon, tothe nominee or nominees nominated under sub sec-tion 2(A) or in the absence of a valid nomination, tothe person or persons lawfully entitled to suchamount.”
Thus, it could be seen that the petitioner can receive ProvidentFund contributions of her late husband only if. she has been nomi-nated in terms of section 93 (2A) (a) of the said Act.
Learned President’s Counsel submits that the documentmarked P2 dated 31.01.1995 was a valid nomination made to theUniversity of Jaffna and amounts to a substantial compliance of sec-tion 93 (2 A) (a) of the said Act. A perusal of P2 shows that it is a dec-laration to be made by all employees of the University of Jaffna in the1st month of each financial year. By this document the declarantundertakes to inform the Vice Chancellor, University of Jaffna anychange in the declarent’s status or living condition. This document,in my view cannot be considered as a nomination made in terms ofsection 93 (2A)(a)-of Universities (Amendment) Act, No. 1 of 1995.The document P2 is a private and an internal communicationbetween the petitioner’s husband and the University of Jaffna.
A writ of mandamus only commands the person or body towhom it is directed to perform a public duty imposed by law. In otherwords, a writ of mandamus would lie where a statute requires certainaction in defined circumstances and despite the existence of suchcircumstances, the required action has not been performed. LordGoddand CJ. said in Ft. v National Joint Council for DentalTechnician ex-parte Neate <1> “the bodies to which in modern times,the remedies of these prerogative writs have been applied, havebeen all statutory bodies on whom Parliament has conferred statu-tory powers and duties which, when exercised may lead to the detri-ment of subjects who may have to submit to their jurisdiction.” Thus,existence of legal right and statutory duty are essential conditions forthe issue of mandamus. The 1st respondent is unable to perform thestatutory duty cast upon it in the absence of a valid nomination asprovided by law which is a condition precedent to the exercise of thejurisdiction. Where an act or thing required by the statue is a condi-
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tion precedent to the jurisdiction, compliance cannot be dispensedwith and, if it be impossible, the jurisdiction fails. It would not be com-petent to a Court to dispense with what the legislature has made theindispensable foundation of the first respondent’s jurisdiction. Thepetitioner has failed to show that a legal duty is owed to herself bythe first respondent.
In the circumstances, I do not see any basis upon which a writof mandamus can be issued on the 1 st respondent. Accordingly, theapplication is dismissed, however in all the circumstances withoutcosts.
Application dismissed
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