JAYARATNE v. FERNANDO AND OTHERS

007-SLLR-SLLR-2000-V-3-JAYARATNE-v.-FERNANDO-AND-OTHERS.pdf


JAYARATNE
v.FERNANDO AND OTHERS
SUPREME COURTFERNANDO, J.
WIJETUNGA, J. ANDGUNASEKERA, J.
SC APPLICATION NO. 333/982 7th APRIL, 2000
Fundamental rights – Allocation of government quarters – AllocatingAuthority – Power of the Minister – Necessity to have a written record ofMinisterial orders – Cancellation of an allocation of government quarterswithout reasons, notice or hearing – Article 12(1) of the Constitution.
The petitioner was a clerk working in the Railway Department. Theallocation of government quarters in the petitioner’s sub-departmentwas done by the 2nd respondent (Chief Mechanical Engineer) as Allocat-ing Authority acting on the recommendations of the House AllocationBoard. (The Housing Committee) of which the 1st respondent (Chemist,Chief Mechanical Engineer's office) was the .Chairman.
In June 1997 in anticipation of quarters No. G 3/2 Ratmalana fallingvacant, the petitioner requested the Housing Committee to allocate it toher. On 06.06. 97 the Committee decided in her favour as she was eligibleand was the first in the waiting list. The 9111 respondent also claimed thesaid quarters stating that the flat which had been allocated to her in June1992 was too small for her. But the g1*1 respondent’s claim was notaccepted as she was not eligible for a period of five years having been inoccupation of quarters for five years. TTie 9th respondent appealed first tothe 5th respondent (General Manager of Railways) and then to the 8threspondent (the Minister of Transport and Highways). Consequently thematter was investigated on several occasions with the result that by14. 10. 97 there were six reports re-affirming the decision of the HousingCommittee made in favour of the petitioner which decision was inaccordance with the criteria laid down by the Director of Establishments.
The disputed quarters fell vacant on 27. 10. 97 but it was not allocatedto the petitioner as the 5lh respondent stated that the Ministry had calledfor a report. But no report had been sent to the S'*1 respondent (Minister)although the 1st respondent had submitted a detailed report to the 5U’respondent in favour of the petitioner. Finally as a result of intervention
70
Sri Lanka Law Reports
120001 3 Sri L.R.
of the 7th respondent (Deputy Minister of Transport and Highways,who was then the Acting Minister). The l51 respondent acting on theinstructions of the 2nd respondent issued a letter dated 06. 11.97allocating the quarters to the petitioner.
The very next day, the allocation was cancelled without reasons, withoutnotice and without hearing the petitioner purportedly on the orders of the8th respondent, and she was ordered to vacate. The 2nd respondent sentthe petitioner a letter dated 11. 11. 97 stating that the 5lh respondentinformed that the S1*1 respondent had made such order. The sameposition was taken by the 3rd respondent who alone filed an affidavit. Byhis letter dated 17. 12. 97, the 5* respondent also had informed theDirector of Establishments that the 8th respondent had ordered theallocation of the disputed quarters to the 9th respondent. But no proof ofany order by the 8th respondent was produced. In fact some otherquarters were allocated to the 9,h respondent, even though she was noteligible for quarters. At the same time the petitioner was charged penalrent, with effect from 11. 11. 97, for staying in the disputed quarterswhich had been allocated to her, and a quit notice was served on her on31.03. 98 under the Government Quarters (Recovery of Possession) Act.No. 7 of 1969.
Held :
(1) The evidence did not establish that the 8respondent gave an orderfor the cancellation of the petitioner’s allocation. Where an order given bya Minister in the due discharge of his functions is not in writing, it shouldbe contemporaneously translated by the recepient into words in adocument.
Per Fernando, J.
“The failure to have proper documentary evidence of Ministerialorders, would encourage public officers to evade responsibilityfor their own acts, merely by claiming that they acted uponunrecorded Ministerial orders."
In any event, the 8th respondent had no power under the Establish-ments Code to order the allocation of quarters or the cancellation ofan allocation; any such order would not be binding on the AllocatingAuthority and would not justify such allocation or cancellation.
There was a valid allocation of the quarters to the petitioner and thecancellation of that allocation infringed the petitioner's right underArticle 12(1) of the Constitution.
sc
Jayaratne u. Fernando And Others (Fernando. J.)
71
Case referred to :
1. Mallows v. Commissioner of Income Tax (1962) 66 NLR 321APPLICATION for relief for infringement of fundamental rights.
Elmore Perera with Prince Perera for Petitioner.
S. Rqjaratnam, SSC for the Is’ to 8“" and 10th Respondents.
9th Respondent absent and unrepresented.
Cur. adv. vult.
July 14. 2000.
FERNANDO, J.The petitioner, is a clerk who has been working in theRailway Department since 1980. On 06. 11. 97 Railwayquarters No. G. 3/2 at Ratmalana (“the disputed quarters”)were allocated to her, and she went into occupation. On11. 11.97 that allocation was cancelled pursuant to an allegedMinisterial order, and she was ordered to vacate. She did not.On 03. 12. 97 she was told that she would be charged penalrent with effect from 11. 11. 97. That was done. Her complaintis that the cancellation of that allocation was arbitrary,capricious and unreasonable. She asks for a declaration thather fundamental right under Article 12(1) had been infringed,for the quashing of the decisions ordering the vacation of thequarters and the deduction of penal rent from her salary, foran order that she be granted legal possession of the quartersfor five years, for the repayment of the penal rent deductedupto date, and for compensation in a sum of Rs. 900,000.
ESTABLISHMENTS CODEThere is always keen competition for the limited numberof Government quarters available. Chapter xix of theEstablishments Code (read with the Railway DepartmentalInstructions) governs the allocation of Government quarters,and the grading of quarters (from grade 1 to grade 5A) inrelation to the various categories of officers who are eligible forthem. There is a separate waiting list for each category of
72
Sri Lanka Law Reports
12000) 3 Sri L.R.
officers who have applied for quarters. The place of each officeron that waiting list depends on the number of points he hasearned, and the criteria and points for each criterion are laiddown. Neither the validity of the scheme nor the allocation ofpoints has been questioned. The procedure for application andallocation is also laid down, and provision is made for aHousing Committee to advise the Allocating Authority. Thefollowing provisions of Chapter xix are relevant:
1. Classification. The term “Government Quarters” includesany type of accommodation at the disposal of the Governmentand allocated for the purpose of residence.
Housing Committee – The Allocating Authority may, if heconsiders (it) necessary, constitute and consult a HousingCommittee in the matter of making selections.
The Housing Committee may recommend deviations fromthe point system only where the mechanical application of thesystem results in a grave and obvious injustice.
The Allocating Authority may deviate from the principlesof selection outlined above for very special reasons with theprior approval of the Director of Establishments.
Officer sharing quarters – Two or more officers can beallowed to share Government Quarters at the discretion of theAllocating Authority . . .
Period – The occupant should be allowed to remain inquarters of grades 5A, 5 and 1 until the time of his transfer ofhis ceasing to be a public officer. The period in respect of grades4, 3 and 2 quarters will be 5 years . . .
An officer who has enjoyed the privilege of occupyingGovernment Quarters in a station for more than half the fullperiod permitted in this Code would not be eligible to beconsidered for such quarters, in the same station for a periodof five years from the date of completion of the earlier period ofoccupation of quarters.
sc
Jayaratne v. Fernando And Others (Fernando. J.)
73
6.3 They may be occupied only by the officer to whom they areallocated and by his wife, children and dependants. No portionof any Government Quarters may be regularly occupied by anyothers without the specific approval of the Allocating Authority.
6.9 Where two or more officers have been permitted toshare quarters, the officer to whom the quarters was originallyallocated, or if both were allocated the quarterssimultaneously, one of them, as may be named by AllocatingAuthority, will be held responsible as tenant of the quarters forcompliance with all the conditions on which the quarters wereallocated. All correspondence in regard to the quarters will beconducted only with that officer.
6.15 An officer should vacate quarters at the end of the periodof tenure or when ordered to do so by the Allocating Authority.
If an officer fails to vacate quarters when ordered to do so,he should be evicted under the Government Quarters(Recoveiy of Possession) Act, No. 7 of 1969, as amended by Act,No. 3 of 1971 and Act, No. 40 of 1974.
He should be charged for the period he overstays histenure, a penal rent, a sum equivalent to the current openmarket rent of the quarters as assessed by the Chief Valuerplus 8% (eight) of the officer’s salary, (emphasis added)
The relevant Railway Departmental Instructions make similarprovisions. The dispute here involves the allocation of quartersto clerks, who are eligible for quarters of grades 2 to 4.
THE ISSUESThe Petitioner contends that she was eligible for quartersand was the first on the relevant waiting list; that there was avalid allocation of the disputed quarters to her by letter dated
11. 97, in terms of which she duly went into occupation;that the summary cancellation of that allocation, withoutreasons, without notice, and without hearing her. was void;
74
Sri Lanka Law Reports
12000] 3 Sri LR.
that her continued occupation was lawful; and that therecovery of penal rent was unlawful.
Mr. Rajaratnam, SSC. on behalf of all the Respondents(other than the 9th), submitted that the Petitioner had been inoccupation of other Government quarters (No. T.3/7) for overfour years, and had thereby become ineligible (under section6.1.1) for another allocation until September 1999; and thattherefore the allocation was irregular, and its cancellation waslawful and justified. In any event, no allocation should havebeen made because an appeal dated 14. 09. 97, submitted bythe 9th Respondent, another clerk, to the 8th Respondent, theMinister of Transport and Highways, against the decision tomake that allocation was still pending on 06. 11. 97. Finally,he urged, the deduction of penal rent was consequential upona valid cancellation.
It is also necessary to consider two other matters. First,whether the cancellation of the Petitioner's allocation wasvalid because it was said to have been ordered by the 8thRespondent-Minister, and second, whether the rival claimant,the 9th Respondent, was ineligible for quarters.
ALLOCATING AUTHORITYThe Petitioner averred in her affidavit that "the GeneralManager of the Railway is the sole authority for allocatingRailway Quarters”. However, in the only affidavit filed onbehalf of the Respondents, the 3rd Respondent (the SeniorAdministrative Officer in the General Manager’s Office) statedthat “the House Allocation Board makes recommendations.which recommendations are duly considered by the allocatingauthority concerned”, and that “the allocation of quarters inthe Petitioner’s sub-department is within the purview of the 2ndRespondent” (namely, the Chief Mechanical Engineer): andthat appears to have been the practice, going by thedocuments produced in this case.
sc
Jayaratne v. Fernando And Others (Fernando. J.)
75
Our attention was not drawn to any provision conferringon the General Manager of Railways (who is the 5thRespondent) or the relevant Minister any power to entertainappeals against, or to review or to vary, the decisions of theAllocating Authority.
THE FACTSThere is hardly any dispute about the facts. The Petitionerhad duly applied for Government quarters in 1986 and hadbeen placed on the relevant waiting list. In 1997 she wasoccupying rented premises. Her landlord gave her notice toquit by the end of the year. In June 1997, learning that thedisputed quarters would soon be falling vacant, she asked theHousing Committee (also referred to as the “House AllocationBoard”) to allocate those quarters to her. The Chairman of theCommittee was the 1st Respondent, the Chemist, attached tothe Chief Mechanical Engineer’s Office, Ratmalana. In itsreport dated 06. 06. 97 the Committee decided in her favourobserving that she was the first on the waiting list (having 57points, while the next officer, the 9th Respondent had 54points), arid that there was no reason to deny her thatallocation.
The 9th Respondent – who had applied for quarters onlyin 1991 – appealed against that decision by letter dated09. 06. 97 (addressed to the 5th Respondent, through the 2ndRespondent). She said that she was already in occupation ofRailway quarters No. A.4 – a small flat at Ratmalana which hadbeen allocated to her in June 1992 – which was too small forher, and pleaded that the disputed quarters be allocated toher. She also claimed that the Petitioner was ineligible forallocation of quarters. The reason she urged was that thePetitioner had gone into occupation of Railway quartersNo. T.3/7 (also at Ratmalana) in February 1990 on the basisof sharing them with one Mr G to whom those quarters hadbeen allocated; that Mr G was actually residing elsewhere(which the Petitioner did not concede); that, consequently, the
76
Sri Lanka Law Reports
1200013 Sri LR.
Petitioner was the sole occupant of those quarters untilSeptember 1994; and that having occupied them for morethan two and a half years, section 6.1.1 made her ineligible foranother allocation of quarters for five years from September1994.
The eligibility of the rival claimants and the merits of theirclaims were reviewed on several occasions thereafter.
On 13. 06. 97 when forwarding the 9th Respondent’sappeal to the 5th Respondent, the 2nd Respondent observedthat persons occupying flats (like the 9,h Respondent) wereeligible to apply for (clerical) quarters, but that she wasthird on the waiting list. He reported that the Petitionerhad shared quarters with Mr G with permission, andhad duly vacated them when required to do so: andaccordingly she had neither violated nor been punishedfor any violation of regulations. He added that the sharingof quarters did not take away an officer's right to apply forquarters in her own right; that the Petitioner was first onthe waiting list; and that the Committee had decided toallocate the next vacant quarters to her.
The 5th Respondent directed that the Housing Committeeshould reconvene and review the facts, and on 27. 06. 97the Committee re-affirmed the Petitioner’s eligibility andclaim.
(iil) On 02. 07. 97 the 2nd Respondent asked the Is'Respondent to take action on that recommendation.Nevertheless – it is not clear why – on 07. 07. 97 the 2ndRespondent appointed another committee to investigatethe matter. That committee reported on 30. 09. 97 thatthe original decision should stand. Citing a letter dated18. 05. 87 from the Director of Establishments, it addedthat the 9th Respondent was not eligible for anotherallocation until the expiry of five years, because she hadbeen in occupation of the flat A.4 for five years.
sc
Jayaralne o. Fernando And Others (Fernando. J.)
77
In the meantime, in response to the 5th Respondent’srequest the 1st Respondent reviewed several pendingrequest for clerical quarters, and reported, on 23. 07. 97,that there were only seven officers then eligible, thePetitioner being the first; the 9th Respondent was notamong them.
The 9th Respondent submitted a petition dated 17. 09. 97to the 8lh Respondent, requesting that the disputedquarters be allocated to her. Among the several claims shemade was that she was the most suitable; that the 5thRespondent had twice directed the 2nd Respondent tocancel the allocation to the Petitioner; and thatdisciplinary action had been ordered against Mr G and thePetitioner. The 8th Respondent made an endorsementdated 19. 09. 97: “G. M. R. PI give her a hearing andreport”. On 22. 09. 97, the 5th Respondent referred thispetition to the lsl Respondent, using a cyclostyled formintended for forwarding to his subordinates lettersreferred to him by the Minister. He directed the 1stRespondent to prepare a draft reply, in English, to be sentto the Minister. On 01. 10. 97 the 1st Respondentsubmitted a draft reply re-iterating the factual position: inregard to the 9th Respondent, that she was not the mostsuitable, that she was ineligible under section 6.1.1according to the Director of Establishments’ letter dated 18. 05. 87, and that the 5lh Respondent had never directedan allocation to her; and, in regard to the Petitioner, thatshe was in first place and should be allocated the disputedquarters, and that disciplinary action had never beeninitiated against her.
On 14. 10. 97, the 1st Respondent submitted yet anotherreport to the 5th Respondent, in response to an oral requestmade on 03. 10. 97. That report dealt in great detail withseveral issues connected with the allocation of thedisputed quarters, which by now were about to fall vacant.It explained how the 9th Respondent came into occupation
78
Sri Lanka Law Reports
1200013 Sri LR.
of the quarters A.4: in June 1992 it was one PushpaRanjini (who was then the first in the relevant waiting list)who was entitled to those quarters, but in violation of herrights those quarters had been taken over by the 9thRespondent secretly and forcibly. The report madereference to the General Manager’s letter dated 29. 10. 85.according to which section 6.1.1 applied even to officerswho had been allocated flats for five years. As for theallegation that Mr G had not been in occupation ofquarters T. 3/7, the 1st Respondent observed that thereport of the flying squad of the Railway Protection Servicehad been made belatedly on 17. 02. 93, eight months aftera surprise check made on 17. 06^92; that the report wascontradictory; and that the Then Chief MechanicalEngineer had directed that no action be taken on thatreport because it was vitiated by several flaws. One wasthat the flying squad officers had wanted to take revengeon Mr G, by putting him into trouble, because he haddischarged his duties honestly regardless of threats.Another was that those officers had been prohibited fromchecking quarters, but had done so without authority.There was also suspicion that they themselves hadfabricated the anonymous petition on the basis of whichthe quarters had been checked. Further, they had alsoalleged, without making inquiries, that Mr G had subletthe quarters to the Petitioner.
I must refer at this point to some of the documentsproduced by the Respondents. By letter dated 02. 02. 90 thePetitioner was granted permission to share quarters T. 3/7with Mr G as chief occupant, on the condition that she wouldobserve the relevant regulations, and that she would vacatethe premises upon Mr G vacating them or upon receipt ofnotice to vacate. More than one year after the surprise check,a notice dated 30. 07. 93 was sent to Mr G alleging that he hadsublet the quarters to the Petitioner and asking him to vacate.That notice was not copied to the Petitioner, nor was she thenasked to vacate. Almost one year later, another notice dated
sc
Jciyaratne a Fernando And Others (Fernando, J.)
79
03. 07. 94 was sent (copied to the Petitioner), cancelling thefirst notice, alleging that Mr G was not in occupation since17.06.92, and requiring both to vacate on or before 04.10.94.Neither of them denied the allegation of non-occupation byMr G, and it is common ground that they duly vacated by08. 09. 94 – four years and seven months after allocation.
The 1st Respondent also reported on 14. 10. 97 that it wasdue to the shortage of accommodation that the Railwaypermits officers to share quarters, and that such sharing wasnot regarded as a ground for reducing points or for denying anofficer the right to be allocated quarters; and that when thePetitioner was given permission to share quarters T. 3/7 shewas not informed of any such condition.
Having referred to and endorsed the Housing Committee’sprevious recommendations, the Is' Respondent concluded bystating that he was awaiting the 5th Respondent’s speedyapproval for allocation to the Petitioner. Nevertheless, the 5thRespondent neither sent a reply to the 8th Respondent norinformed the Petitioner and the 9th Respondent what his viewswere in regard to the allocation.
The reason vyhich the 3rd Respondent now gives for thatdefault is disturbing. He claimed that the draft reply preparedby the lsl Respondent (on 01. 10. 97) had been given to him bythe 5th Respondent for his consideration, on 06. 10. 97: butthat “no reply has been sent to the Minister, since thisapplication was filed by the Petitioner before [he] couldrecommend a suitable reply to the 8th Respondent Minister".Since the. Petitioner’s application was filed in June 1998, thatmeans that (if the 3rd Respondent was truthful) eight monthswas not enough for him to consider what should be said to theMinister. Had the allocation of the disputed quarters to awaitthat reply, those quarters would have remained vacant for wellover seven months, depriving an eligible public officer alegitimate employment benefit of a tenancy at a modest rental.
I think it far more likely that the 3rd Respondent did not dare
80
Sri Lanka Law Reports
12000) 3 Sri L.R.
to make any recommendation – despite the flurry ofcorrespondence during the last quarter of 1997 – because hewas unable to find a reason to deny the Petitioner’s claim.
Thus by mid-October the position was that the Petitioner’sclaims and the 9th Respondent’s allegations andcounter-claims had been scrutinised repeatedly and in greatdetail. The Housing Committee had twice decided (on 06. 06.97 and 27. 06. 97) in favour of the Petitioner; anotherdifferently constituted committee had agreed (on 30. 09. 97).Upon the 9th Respondent’s first appeal, the 2nd Respondent hadreported (on 13. 06. 97) to the 5th Respondent adversely to her.As for her second appeal, to the Minister, the 1st Respondenthad submitted (on 01. 10. 97) at the 5th Respondent’s requestan exhaustive draft of the reply to be sent to the Minister as wellas a later full report (on 14. 10. 97) – both confirming thePetitioner’s entitlement. There were thus in effect six reasonedwritten reports, all favourable to the Petitioner’s claim, but asyet no sign of a final decision. It seemed as if, paradoxically, asurfeit of “due process” was about to operate so as to denyjustice to the Petitioner!
On 27. 10.97 the disputed quarters fell vacant. Since theywere not allocated to the Petitioner, she met the 5th Respondenton the 30th or the 31st together with her husband. Whattranspired appears primarily from the affidavits of herhusband and herself. They averred that the 5th Respondentinformed them that he had looked into the matter carefully andwould not cause any injustice to her, but that the Ministry hadcalled for a report and that a report had to be sent; and that hehad no objection to their making inquiries at the Ministry. Inwhat is virtually a contemporaneous letter dated 12. 11. 97,she also said that on that occasion the General Manager(Administration) as well as the 3rd Respondent had agreed thatshe was entitled to the allocation. The 3rd Respondent did notdeny this, and merely pleaded ignorance; and as there are noaffidavits from the 5th Respondent, and the General Manager(Administration), there is no denial of those averments. There
sc
Jayaratne u. Fernando And Others (Fernando, J.)
81
is no reason to disbelieve the Petitioner. Indeed, her version iscorroborated by another contemporaneous letter which shewrote to the Director of Establishments on 03. 11. 97,complaining that, as a result of improper influence exerted bythe 9th Respondent, there was an attempt to get instructionsfrom the Ministry in order to cause injustice to her. That letterwas copied to the 2nd and 5th Respondents as well as the 6th, theSecretary to the Ministry.
This is therefore not a case in which the Petitioner decidedto meet the Minister of her own volition: it was, rather, the 5thRespondent who virtually induced her to do that, not only bywhat he told her but also by his unreasonable delay in replyingto the Minister.
When they went to the Ministry on 04. 11. 97 theyfound that the Minister was abroad; and so they met the 7thRespondent (the Deputy Minister, who was then the acting.Minister), who checked the relevant documents, and wrote tothe 2nd Respondent, the same day, as acting Minister. He drewattention to the fact that the Petitioner was first in the waitinglist, and requested that necessary action be taken to havethe disputed quarters promptly allocated to her. The 2ndRespondent thereupon directed the 1st Respondent, theChairman of the Housing Committee, to “implementaccordingly”. The ls‘ Respondent issued the letter of allocationdated 06. 11. 97, which stated that if she did not go intooccupation within ten days it would be presumed that she didnot require the quarters, in which event her allocation wouldbe cancelled, and she would be charged one month’s rent. Shegave up possession of her rented premises, and entered intooccupation of the disputed quarters on 10. 11. 97.
The very next day – without any reason, without anyopportunity of showing cause, and without any notice – thatallocation was cancelled and she was ordered to vacate. Shedid not, and submitted an appeal to the 2nd Respondent on12. 11. 97. On 03. 12. 97 she was told that she would be
82
Sri Lanka Law Reports
12000) 3 Sri L.R.
charged penal rent with effect from 11. 11. 97. Again sheappealed, on 04. 12. 97, to the 2nd Respondent. She receivedno response.
The Respondents’ position is that that cancellation wasbecause of a Ministerial order. There is a great deal ofuncertainty and confusion about that order: Was such anorder given? What was the Minister told before he gave thatorder? To whom was that order given – to the 4th Respondentor to the 5th? Was it an order (a) for the cancellation of thePetitioner’s allocation, OR (b) only for an allocation to the 9thRespondent?
The alleged Ministerial order was not in writing, and thereis no contemporaneous record of it. Reference has been madeto it in correspondence and in the 3rd Respondent’s affidavit.
The first reference to such an order is in a letter dated11. 11. 97 signed by the 3rd Respondent in which the 4,hRespondent’s name has merely been typed. That letter statedthat the 8th Respondent had ordered the cancellation of theallocation, but did not state to whom that order had been given.
The next reference is in a letter which the 2nd Respondentwrote to the Petitioner on 11. 11. 97, stating that because the5th Respondent had informed him by letter dated 11. 11.97 thatthe 8th Respondent had ordered the 5th Respondent to cancelthe allocation, the allocation made by his letter dated 06. 11.97 was cancelled. No letter from the 5th Respondent to the 2ndRespondent bearing the date 11. 11. 97 has been produced.
The third reference is in a letter dated 17. 12. 97 to theDirector of Establishments in which the 5th Respondent statedthat the 8th Respondent had ordered the allocation of thedisputed quarters to the 9th Respondent. He did not say towhom that order had been given, and he did not claim thatthere was an order for the cancellation of the Petitioner’sallocation.
sc
Jayaratne u. Fernando And Others (Fernando. J.)
83
Finally, in his affidavit the 3rd Respondent claimed that the8th Respondent “had telephoned the 4"1 Respondent (i. e. theAdditional General Manager, Administration) and told him byphone to cancel the letter of allocation”. The 4th Respondent didnot tender a supporting affidavit. The 3rd Respondent addedthat he discussed the matter with the 4th Respondent, and thatthey sent the 2nd Respondent a letter dated 11. 11. 97, “signedby the 4th Respondent. . .". In fact that letter was not signedby the 4th Respondent, nor did it state to whom the order wasgiven.
On 12. 11. 97. the Petitioner appealed to the 2ndRespondent. Thereupon the lsl Respondent (on behalf of the2nd Respondent) advised the 5th Respondent on 18. 11.97 thatthe allocation had been made lawfully; that the Petitioner wasin lawful possession; and that it was neither lawful norequitable to cancel that allocation without notice and withoutreasons. He added that the 9th Respondent had no right to theallocation of the quarters next falling vacant, and that such anallocation would be contrary to the Establishments Code. The5th Respondent's reaction was to direct the 2nd Respondentto inform the Petitioner that steps would be taken forher ejectment and the recovery of penal rent; that the2nd Respondent did by his letter dated 03. 12. 97. ThePetitioner appealed. Despite a reminder dated 16. 12. 97 thePetitioner received no reply to either of her appeals. Penal rent(namely, an additional Rs. 1.500 p.m.) was recovered fromJanuary 1998, with effect from 11. 11. 97. by deduction fromher gross salary of Rs. 6,050 p.m. That penal rent not onlyamounted to 25% of gross salary, but was more than 50%of her take-home pay.
I have already referred to the Director of Establishments’letter dated 18. 05. 87, which indicated that the 9,hRespondent was not eligible for allocation of quarters. Whenthe Director of Establishments received the Petitioner’s letterof03. 11.97, he asked the 5th Respondent for his observations.In his reply dated 17. 12. 97. the 5th Respondent referred to
84
Sri Lanka Law Reports
1200013 Sri L.R.
advice given by the Director of Establishments in 1985 that thefive-year rule in section 6.1.1 applied to the occupation of flatsas well. However, he claimed that that was not being followed,and that accordingly the 9th Respondent was entitled to thedisputed quarters, and that the 8lh Respondent had orderedtheir allocation to the 9th Respondent. The Director ofEstablishments replied on 27. 01.98 that if flats fell within thedefinition of “Government Quarters", section 6.1.1 wouldapply, and action contrary thereto would require Cabinetapproval.
However, on 19. 01.98, even before the 5,h Respondent gotthe Director of Establishments’ reply, quarters No. T. 3/5at Ratmalana were allocated to the 9th Respondent.Consequently, the disputed quarters were no longer neededfor her. Nevertheless, the Petitioner was sent a notice to quit,dated 31. 03. 98, issued under the Government Quarters(Recovery of Possession) Act, No. 7 of 1969. That was receivedby her only on 13. 05.98, whereupon she filed this application.
MINISTERIAL ORDERSThe 2nd Respondent cancelled the Petitioner’s allocation,stating (in his letter dated 11. 11. 97) that the Minister hadordered the 5th Respondent to do so. Neither the 2nd nor the 5"’Respondent has filed an affidavit to that effect. Further, whatthe 5th Respondent said, in his letter dated 17. 12.97, was thatthe Minister had ordered allocation to the 9,h Respondent.There is thus no acceptable evidence of a Ministerial order(a) given to the 5,lx Respondent, (b) for cancellation of thePetitioner’s allocation.
The 3rd Respondent, in his letter dated 11. 11. 97. did notsay to whom the Minister gave the order for cancellation.Although in his affidavit he claimed that it was given to the 4lhRespondent, that is only hearsay; it was not supported byan affidavit from, or even a document signed by, the 4thRespondent.
sc
Jayaratne v. Fernando And Others IFernando, J.)
85
When there are such contradictions, inconsistencies andomissions as to the person to whom the Minister gave anorder, and what that order was, it is difficult to hold that theMinister did in fact give an order for cancellation.
Even if I were to assume that the 8th Respondentdid communicate with the 51* Respondent or one of hissubordinates, there is uncertainly as to what exactly he hadbeen told, and what exactly he “ordered”. It'may well be thathe was not told that the Petitioner's allocation had been madeafter the matter had been reconsidered in October and afterthe 7th Respondent had looked into it. 1 cannot lightly presumethat he directed cancellation or allocation regardless of legalityor propriety.
There is no satisfactory evidence that the 8,h Respondenthad directed the cancellation of the Petitioner’s allocation; andthat he had in mind cancellation regardless of legality andpropriety.
The question whether or not there was a Ministerial ordercannot be left to speculation. There must be certainty both asto the fact of such order, and as to its contents, and that canonly be ensured by having such orders properly documented.The observations in Mallows v. Commissioner of Income Tax,1"are apposite. Dealing with a statutory provision thatcertain consequences would flow from the “opinion” of theCommissioner, it was held that:
"… The opinion must not only be entertained generally,so to say, in the mind of the Commissioner, but the mattermust be taken a step further and translated into words ina document so as to serve as evidence to guide thosefunctionaries [who have to act on the basis of that opinion].”
The alleged Ministerial order for the cancellation of thePetitioner's allocation involved her vested rights. If that orderwas not conveyed in writing by the Minister, it should have
86
Sri Lanka Law Reports
12000) 3 Sri UR.
been translated by the recipient into words in a document.which would thereafter have been available in the relevant file,to serve as evidence to guide any one who had to deal with thatallocation or its cancellation. All concerned would know withcertainty what the Minister had said, without having to dependon any one’s recollection. In this case, one of several thingsshould have happened. Whoever received the order shouldhave made a contemporaneous minute on the file; or theMinisterial order should have been acknowledged in writing;or correspondence pursuant to that order should have beencopied to the 8th Respondent, making an appropriate referenceto his order.
If a responsible Minister gives an order in the duedischarge of his functions, he could have no objection to thatorder being placed on record in that way by the publicofficer to whom it is addressed. The failure to have properdocumentary evidence of Ministerial orders, would encouragepublic officers to evade responsibility for their own acts, merelyby claiming that they acted upon unrecorded oral Ministerialorders.
In these circumstances, I hold that the evidence does notestablish that the 8,h Respondent gave an order for thecancellation of the Petitioner's allocation.
I hold further that, in any event, the 8"' Respondenthad no power under the Establishments Code to order theallocation of quarters or the cancellation of an allocation , thatany such order would not have been binding on the AllocatingAuthority, and would not have justified such allocation orcancellation. Consequently, the 1st to 5th Respondents musttake responsibility for whatever they did in connection withallocation and cancellation, and cannot take cover behindMinisterial orders.
It follows that the pendency of the 9th Respondent’s appealto the Minister, in respect of a matter in which he had no legalauthority, did not invalidate the allocation made on 06. 11. 97.
sc
Jayaratne v. Fernando And Others (Fernando, J.)
87
ELIGIBILITYSection 1 defines “Government Quarters” to include “anytype of accommodation” allocated for the purpose of residence.A flat is a “type of accommodation”. Accordingly, the flatoccupied by the 9th Respondent was “Government Quarters”,and section 6.1.1 made her ineligible for another allocation forfive years.
The allegation that the Petitioner was not eligiblewas based on her occupation – sole or shared – of quartersNo. T. 3/7 from February 1990 to September 1994.
It is not disputed that those quarters were allocated toMr G, and that the Petitioner was granted permission to sharethem, from the outset in February 1990. The allegation madeon 03. 07. 94, that Mr G was not in occupation at the time ofthe flying squad inspection on 17.06.92, was not denied eitherby Mr G or by the Petitioner. Indeed, by promptly vacating thequarters they accepted that position. That shows thatthe Petitioner was the sole occupant for two years andthree months, from June 1992 to September 1994. Thedisqualification created by section 6.1.1 arises only uponoccupation “for more than half the full period permitted”. Sincethe full period permitted (by section 6.1) is five years, soleoccupation for less than two and a half years did not operateas a disqualification.
There is no material on which this Court can concludethat Mr G was not in occupation for any period prior to17. 06. 92. The question of eligibility was for the AllocatingAuthority to determine, and the 1st Respondent as Chairmanof the Housing Committee dealt with that matter exhaustivelyin his report dated 14. 10. 97. The Is' and 2nd Respondents havenot sought to go back on those findings, and Senior StateCounsel who now appears for them can hardly be heard toquestion his clients' findings. In any event, even if this Court
88
Sri Lanka Law Reports
12000) 3 Sri L.R.
is entitled to review those findings, the Respondents havefailed to produce the flying squad report, and the relateddocuments, except for a photocopy of a handwritten statementsaid to have been made by the Petitioner, which is partlyillegible, and partly ambiguous. They have produced extractsfrom electoral registers for 1993 and 1994 – which are notrelevant to the period before June 1992.
There remains the submission that mere occupation forover four years – whether shared or sole – disentitled thePetitioner to an allocation in her own right.
Section 6.1 guarantees to an officer, who is allocatedquarters of grades 2 to 4, a period of five years occupation.Section 6.15 imposes an obligation on him to vacate at the endof that “period of tenure". Although it adds “or when orderedto do so by the Allocating Authority", that does not give theAllocating Authority an absolute or unfettered right to exact anoccupant. That only means that if the Allocating Authority hasa right, aliunde, to order vacation (e. g. for breach of someregulation or condition) and calls upon the occupant to vacate,then the occupant must vacate, and section 7.1 indicates theremedy for default. Subject to that, section 6.1 guarantees atenure of five years.
Section 6.1.1 is in the nature of a proviso to section 6.1Section 6.1 confers an entitlement on officers allocatedquarters of grades 2 to 4: the right to remain in occupation forfive years. Section 6.1.1 imposes a disability on those whoenjoy that right (or privilege) for at least half that period. Thatdisability cannot be extended to the wider category of thosewho were not granted the right of occupation for that period,although they might in fact have occupied quarters for thatperiod. An officer who is allowed to occupy quarters on theterms that he was obliged to vacate on demand does not comewithin section 6.1, and hence is not subject to section 6.1.1.An officer will not be subject to the disability unless he has firstenjoyed the privilege.
sc
Jayaratne u. Fernando And Others (Fernando, J.)
89
A situation in which quarters are occupied by more thanone officer may come about in several different ways. Section6.9 provides that two officers may be simultaneously“allocated” the same quarters; and that one officer having beenoriginally “allocated” quarters, another officer may later bepermitted to “share” them. Further, section 6.3 provides thatone officer may be "allocated” quarters, and the AllocatingAuthority may grant specific approval to another officer to“regularly occupy” a portion of such quarters.
Clearly, there was no “allocation” of quarters No. T. 3/7 tothe Petitioner. Whether it was a case of her being allowed to“share” those quarters, or “regularly occupy” them, the letterdated 02. 02. 90 set out the terms of her occupancy. It ismanifest that she had no right of occupation for five years; andthat she was obliged to vacate not only if Mr G vacated, buteven if Mr G continued in lawful occupation. She never hada right of occupation in terms of section 6.1, and shewas therefore never subject to the disability created bysection 6.1.1.
ALLOCATING TO THE PETITIONERThe Petitioner was eligible for allocation and was the firstin the waiting list; the pendency of the 9th Respondent’s appealto the Minister was no bar to the allocation made to her.
The question arises whether that allocation was vitiatedby the 7th Respondent’s “request” that necessary action betaken to have the disputed quarters allocated to her – for justas the Minister had no authority to order cancellation of anallocation, the acting Minister had no power to order anallocation.
The Petitioner did not seek Ministerial intervention. Thereis no doubt that the 1st and 2nd Respondents were about tomake an allocation in her favour, and would have done so but
90
Sri Lanka Law Reports
12000) 3 Sri LR.
for the 5th Respondent's intervention. Not only did heunreasonably delay submitting the report which the 8thRespondent had called for, but he virtually compelled thePetitioner to approach the Minister. In the circumstances,although the allocation was made after the 7,h Respondent'sletter, it was not made because of that letter. In a sense, the 7lhRespondent’s letter merely negatived the delay caused by the8th Respondent's request for a report.
In the circumstances, I hold that there was a validallocation in favour of the Petitioner, duly made on 06. 11. 97by the 2nd Respondent acting in the exercise of his discretion,and not upon the dictates of the 7th Respondent.
CANCELLATION OF THE PETITIONER S ALLOCATIONThe allocation being valid, the Code contains no provisionempowering or justifying its cancellation. Section 6.15 doesnot deal with cancellation, but with an order to vacate made bythe Allocating Authority. The case before us does not involvean order to vacate – for which, in any event, there were nogrounds.
Even if it can be argued (which I doubt) that the 2ndRespondent as Allocating Authority had an implied power tocancel an allocation, his views on the cancellation werepromptly conveyed by the 1st Respondent, on his behalf, to the5th Respondent: that the cancellation was neither lawful norequitable. It is clear therefore that he acted on the directionsof the 5th Respondent – who was acting in purported pursuanceof an unproved Ministerial order – and not in the properexercise of whatever discretion he may have had.
Another matter which vitiates the cancellation is that itwas without reasons, without notice, and without hearing thePetitioner.
It is necessary to consider the 5th Respondent’s conduct.He knew that the allocation to the Petitioner had been
sc
Jayaratne v. Fernando And Others (Fernando. J.)
91
recommended and decided upon, over and over again. Hisletter dated 17. 12. 97 shows that he nevertheless wanted the9lh Respondent to have the disputed quarters even though heknew full well that she was not eligible. Further, even after the9th Respondent no longer heeded the disputed quarters, hedid not discontinue the efforts to evict the Petitioner and tolevy penal rent. It is not surprising that he refrained fromsubmitting a report to the Minister and from replying to thePetitioner’s appeals.
ORDERI grant the Petitioner a declaration that her fundamentalright under Article 12(1} has been infringed by the 3rd and 5thRespondents. I quash the order cancelling the allocation of thedisputed quarters, the order charging penal rent from her, andthe notice to quit dated 31. 03. 98 served on her. The allocationdated 06. 11. 97 will stand, and she will be entitled to continuein occupation of those quarters in terms of the EstablishmentsCode paying rent in terms of the Code, and to the refund,on or before 31. 08. 2000, of all pencil rent deducted from11. 11. 97 to date.
I turn to the determination of compensation. ThePetitioner had already vacated the premises which she hadtaken on rent. Summary cancellation and a demand forimmediate vacation was therefore wholly unreasonable andoppressive. The failure to give her a little time to find otheraccommodation points to malice. The levy of penal rent wouldhave resulted – both to herself and to her children – inhardships which a refund, even with interest, can neveradequately compensate. The public are entitled to expectefficient service from public officers like the Petitioner – butdenying public officers fair treatment in relation to theiremployment and employment benefits results in demotivatingthem. In these circumstances, I award the Petitioner a sum ofRs. 100,000 as compensation, payable by the State on orbefore 31. 08. 2000. In regard to costs, the 3rd Respondent will
92
Sri Lanka Law Reports
120001 3 Sri L.R.
personally pay the Petitioner a sum of Rs. 5,000. and the 5thRespondent will personally pay her a sum of Rs. 25,000, on orbefore 31. 08. 2000.
WIJETUNGA, J. – I agree.
GUNASEKERA, J. – I agree.
Relief Granted.