001-SLLR-SLLR-2001-V-1-KAMALAWATHIE-AND-OTHERS-v.-THE-PROVINCIAL-PUBLIC-SERVICE-COMMISSION-NORTH.pdf
KAMALAWATHIE AND OTHERS
v.THE PROVINCIAL PUBLIC SERVICE COMMISSION,NORTH-WESTERN PROVINCE AND OTHERS
SUPREME COURTFERNANDO. J.
WADUGODAPITIYA, J. ANDISMAIL. J.
SC APPLICATION 300/200023rd AUGUST. 2000
Fundamental rights – Transfer of teachers by a Provincial Director -ofEducation – Breach of National Policy ■ Article 12(1) of the Constitution.
The petitioners were teachers in the Sri Lanka Teachers’ Service. The 4threspondent (the Provincial Director of Education, North-WesternProvince) to whom the power of transferring teachers had been delegatedby the lal respondent (the Provincial Public Service Commission of theNorth-Western Province) transferred the petitioners with effect from02. 05. 2000. The letters of transfer stated that in accordance with theNational Teacher Transfer Policy set out in circular No. 95/11 issued bythe Ministry of Education and Higher Education it had been decided totransfer teachers who had less than three years service in difficult areas.No other reason was given.
The Circular 95/11 provided that subject to certain exceptions includingtransfers necessitated by exigencies of service in very urgent and specialcircumstances transfers should be on the recommendation of a dulyestablished Teacher Transfer Board. Even in the case of such urgency ifwas required that the Teacher Transfer Board be summoned andinformed within two weeks. Provision was also made for an Appeal Board.Chapter III of the Establishments Code was made applicable except asotherwise expressly provided in the circular. None of the exceptionsprovided by the circular applied to the petitioners; no Teacher TransferBoard or Appeal Board had been set up, and accordingly the impugnedtransfers had been made and appeals had been dealt with, without anyreference to such boards.
It was submitted on behalf of the respondents that the transfers wereeffected as there was an excess of teachers in certain zones and ashortage of teachers in other zones, hence transfers were on account ofexigencies of service.
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Held :
Even accepting that the 4<h respondent did have power to make theimpugned transfers, an essential pre-requisite for the exercise of thatpower was the recommendation of the Teacher Transfer Board. Hisfailure to obtain those recommendations vitiated the transfer orders,which were, therefore, in violation of the petitioner's fundamental rightsunder Article 12(1).
Per Fernando. J.
"While powers in respect of education have been devolved toProvincial Councils, those powers must be exercised in conformitywith national policy. Once national policy has been duly formulatedin respect of any subject, there cannot be any conflicting provincialpolicy on that subject."
The transfer letters did not allege “exigencies of service'. Itisnotopento the respondents to allege one reason in the transfer letters and to relyupon another when they come to court. Apart from anything else, thatwould be stultifying the appeal procedure.
APPLICATION for relief for infringement of fundamental rights.
UpuL Jayasuriya for petitioners.
Mahen Gopallawa. State Counsel for respondents.
Cur. adv. vult.
October 03, 2000.
FERNANDO, J.The twenty Petitioners are teachers in the Sri LankaTeachers’ Service. Each of them received a standard transferletter – dated either 31. 03. 2000 or 01. 04. 2000 – issued bythe 4th Respondent (the Provincial Director of Education of theNorth-Western Provincial Council) and captioned ‘Transfer ofteachers who have not completed service in difficult areas”,transferring him/her with effect from 02. 05. 2000. The lettersstated that in accordance with the national teacher transferpolicy set out in Circular No. 95/11 issued by the Ministry ofEducation and Higher Education, it had been decided totransfer teachers who had less than three years’ service indifficult areas. No other reason was given.
SC Kamalawathie and Others v. The Provincial Public Service Commission. 3
North-Western Province and Others {Fernando, J.)
Although the transfers were challenged for severaldifferent reasons, at the hearing learned Counsel for thePetitioners confined his challenge to one ground: that thetransfers had been effected without recourse to a TeacherTransfer Board, as required by Circular No. 95/11 and theEstablishments Code, and that consequently the Petitionershad been denied the protection thereof in violation ofArticle 12(1).
Circular No. 95/11 dated 31. 03. 95 stated, among otherthings, that in order to make education more fruitful, theGovernment had decided that a teacher transfer policy shouldbe formulated so as to ensure the welfare of students andteachers to the utmost; that in order to secure the professionalsecurity and freedom of teachers, they should be able to servewithout fear of unjust transfers; and that the teacher transferpolicy set out therein had been approved by the Cabinet ofMinisters on 18. 01. 95 as national policy, with which everyofficial (taking action in connection with teacher transfers)must comply. The Circular specifically provided that apartfrom transfers in connection with pending or proposeddisciplinary action, in every other instance transfers should beon the recommendation of a duly established teacher transferboard. This was subject to two exceptions: a transfer upon therequest of a teacher for reasons of health, and a transfernecessitated by the exigencies of service in very urgent andspecial circumstances. However, even in the latter case, it wasrequired that the teacher transfer board be summoned andinformed within two weeks. Provision was also made for anappeal board. Chapter III of the Establishments Code wasmade applicable except as otherwise expressly provided in theCircular.
Chapter III of the Establishments Code makes detailedprovision in regard to transfers. It specifies the authoritieshaving the power to transfer public officers, and section 3:1stipulates that “the authority ordering a transfer will act on theadvice of a Transfer Board, except in cases referred to in
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section 3:2 when the transfers will be ordered entirely atthe discretion of the authority”. Section 3:2 provides that aTransfer Board will not deal with transfers not involving achange of station, transfers on disciplinary grounds, transfersnecessitated by the exigencies of service, and transfers in aDepartment having less them 25 transferable officers. Section4 requires that, as far as possible, all transfers should takeeffect from the 1st of January, and that at least two calendarmonths’ notice of transfer should be given.
The 4th Respondent’s position, as stated in his affidavitand as submitted by State Counsel, was that the power totransfer teachers was vested in the 1st Respondent, theProvincial Public Service Commission (under section 32(2A) ofthe Provincial Councils Act, No. 42 of 1987, as amended by ActNo. 28 of 1990); that that power had been delegated to the 4lhRespondent (by the Provincial Council’s Circular No. 95/2dated 16. 02. 95); that the impugned transfers had beeneffected to redress an imbalance of teachers, there being anexcess of teachers in five zones in the Kurunegala District, anda shortage of teachers in two zones in the Puttalam District(as revealed by surveys carried out in 1998/99); that it wasthose teachers who were excess and had not completed theirmandatory period of service in difficult areas, who had beenselected for transfer; that such transfers had commenced in1999; and that fifteen Petitioners who had submitted appealshad been granted some relief.
Learned State Counsel conceded that no teacher transferboard or appeal board had been set up, and that accordinglythe impugned transfers had been made, and the appeals hadbeen dealt with, without any reference to such boards.
Circular No. 95/11 sets out national policy on animportant aspect of education. A fair and impartial teachertransfer policy is essential to ensure that teachers serve withdedication in the best interests of the children entrusted totheir care. A national policy regarding such transfers is most
SC Kamalawathie and Others v. The Provincial Public Service Commission, 5
North-Western Province and Others (Fernando, J.)
desirable. While powers in respect of education have beendevolved to Provincial Councils, those powers must beexercised in conformity with national policy. Once nationalpolicy has been duly formulated in respect of any subject,there cannot be any conflicting provincial policy on that samesubject.
We are concerned in this case not with .the question whohas the power to transfer teachers, but rather with the properprocedure for the exercise of that power. The Circular, readwith the Establishments Code, made it very clear that theteacher transfer board and the appeal board were essentialcomponents of that procedure. That procedure constitutes avaluable safeguard for the protection of the rights of teachers.Even accepting that the 4th Respondent did have the power tomake the impugned transfers, an essential pre-requisite forthe exercise of that power was the recommendations ofthe teacher transfer board. His failure to obtain thoserecommendations vitiated the transfer orders, which weretherefore in violation of the Petitioners’ fundamental rightsunder Article 12(1). It is hardly necessary to add that thefailure to establish a transfer board did not enlarge the 4thRespondent’s discretion or make it unconditional.
While that disposes of the issue in this case, I must referto learned State Counsel’s submission that the transferswere on account of the exigencies of service. First, CircularNo. 95/11 does not dispense with the need to obtain therecommendations of the teacher transfer board in every caseof “exigencies of service”, but only where there is genuineurgency. Second, even in cases of urgency the board must bepromptly summoned and informed. In so far as the presentcase is concerned, the alleged excesses and shortages wereknown in 1999, and should have been taken intoconsideration when deciding upon the annual transfers for2000. It was not reasonable to claim in March 2000 that therewas some urgency which prevented recourse to the teachertransfer board. Finally, the transfer letters did not allege
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“exigencies of service”. It is not open to the Respondents tostate one reason in the transfer letters and to rely uponanother when they come to Court. Apart from anything else,that would stultify the appeal procedure.
Having regard to the need to avoid disrupting theeducation of the children involved, I do not quash theimpugned transfer orders. Learned State Counsel stated thaton appeal some Petitioners had been given mutuallyacceptable alternative stations, while others had been givendeferments: all those orders will stand. However, it is just andequitable that the Petitioners should be fully compensated forthe violation of their rights. I order the Provincial Ministry ofEducation of the North-Western Provincial Council to pay eachof the Petitioners compensation and costs in a sum ofRs. 60,000, which shall be paid in two instalments: Rs. 20,000on 01. 11. 2000, and Rs. 40,000 on 01. 02. 2001. If, however,in the annual transfers for the year 2001, any Petitioner isretransferred (effective not later than 01. 01. 2001, andoperative for not less than one year) to the school in which he/she was serving prior to the impugned transfers, he will ceaseto be entitled to the second instalment of Rs. 40,000.
WADUGODAPITIYA, J. – I agree.
ISMAIL, J.I agree.
Relief granted.