057-NLR-NLR-V-51-JAYASINGHE-Petitioner-and-DE-SOYSA-Respondent.pdf
Jay aainghe t», De Snyaa
231
1949
Present: Gratiaen J.JAYASINGHE, Petitioner, and- D’K SOYSA, Respondent
S. C. 129—‘Application for a Writ of Quo Warranto
Writ of quo warranto—Teacher in privately owned Assisted School—Not-disqualified to be member of a local authority—Local AuthoritiesElections Ordinance, No. S3 of 194$, section 10 (1) (d).
A teacher employed in a privately owned Assisted School does nothold a public office under the Crown within the meaning of section 10(1) (d) of tho Local Authorities Elections Ordinance and is, therefore,not disqualified to be elected as a member of a local authority. 1
1 (1949) SO AT. L. B. 297.
GRATIAEN J.—Jriytwitit/Ji-.De Soy*«•
This was fin application for u writ, of quo ivurrnnto challenging therespondent’s right to exorcist* the* office of a member of t he MunicipalCouncil of Kurunegala.
E. H. Wikramanayake, K with M. A. M. fJuwiin, for the petitioner.■S'. .ademn, with /). S. Jayawirkrauia, for the respondent.
Cur. ndv. wit.
November lb, 1949. Gratjaun .1.—
This application came up before me on llt.h November, 1949. Att he conclusion of this argument i made order discharging the rule withcosts, and I uow proceed to record the grounds for my decision.
'Pile facta are not in dispute. The respondent was ele ted a memberof the Municipal Council of Kurimeg.ila on 25th November. 1948, and hasfunctioned in that office since .r>th .January, 1949. He has at all relevantt ime's been a teacher employed at Christ Church College of which theReverend Derek Karuuarutne is Manager. The school is not a Govern-ment school hut receives an annual grant from the Director of Educationin accordance with the School Grants (.Revised Conditions) Regulations.1945. The school recently entered what is commonly known as the FreeEducation Scheme, but subject to the statutory rights of supervisionand control which the Director enjoys over Assisted Schools, ChristChurch College still retains, for what it is worth, its former status as aprivately owned educational institution. The annual grant representsa contribution from the Government towards the expenses incurred bythe School manager and is calculated in accordance with the rules ofthe Code governing Assisted English Schools. The Regulations providethat the salary payable to a teacher by the Manager may cither, forconvenience, ho paid direct to him by the Government or paid to theManager at agreed intervals. In the ease of Christ Church College,apparently, the former alternative has been adopted.
The petitioner claims that in these circumstances the respondent is the
holder of a public? office under the Crown in Ceylon ” within the meaningof Section 10 (1) {d) of the Local Authorities Elections Ordinance, No. 59of 1946, and is accordingly disqualified from sitting or voting as a memberof any local authority. The petitioner thorefore challenges the respon-dent’s right to exercise the office of a member of the Municipal Councilof "Kurunegala.
In my opinion the petitioners application is devoid of merit. Therespondent does not hold any “ public office under tho Crown Hisengagement as a teacher at Christ Church College is referable to a contractof employment between himself arid the Manager of a privately ownedAssisted School. Tho circumstance that the Government- contributestho whole or part of the salary payable* to him by the. Manager U besidesthe point, and does not either establish privity between him and theCrown or alter the intrinsic character of his personal contract- of servicewith the Manager. Should ho not receive his salary for any month interms of the contract his remedy would bo against the Manager and not
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the Crown. If the grant be withheld by the Director, the teacher’sright to claim his salary is not affected. Although a Manager is procludedby the. Code from employing or discontinuing a teacher without theprior approval of the Director of Education, this docs not in any wayestablish privity of contract between the teacher and the Director.If one applies to the respondent the tests laid down for determiningwhether a person is a servant of the Crown—namely (1) who makes theappointment? (2) who dismisses him? (3) who pays his salary?(vido Podi Singko v. (ioonesinghe *), I would say that the answer to eachquestion would be “ the Reverend Derek Karunaratne ” and not “ theDirector of Education ”, No doubt the Director controls the appoint-ment and the dismissal, and no doubt the public revenue may be thesource from which a sum equivalent to the petitioner’s salary payableby the Manager is derived, but in each case the privity of contractbotween the master and his servant remains wholly unaffected. Evenif the payment bo made direct to the teacher from public funds, it is madeon behalf of the Manager who is the real debtor under the contract ofservice. Mr. Wikreraanayako referred me to Boners v. Harding 2 whereit was held that the master of a “ national school ” in England held “ a-public office or employment of profit ” within the meaning of scheduleE of tho Income Tax Acts. I find myself unable to derive much assistancefrom this ruling in the absence of some indication of the extent, if any,to which the constitution of a national school in England approximatesto that of a privately owned Assisted School in Ceylon.
For the reasons which I have now recorded I refused the petitioner’sapplication with costs which were fixed at Rs. 31/5.
Application dismissed.