037-SLLR-SLLR-2003-V-3-KATUGAMPOLA-v.-COMMISSIONER-GENERAL-OF-EXCISE-AND-OTHERS.pdf
CA
Katugampola v Commissioner General of Excise and others
(Shiranee Tilakawardane. J. <P/CA)).
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KATUGAMPOLAv
COMMISSIONER-GENERAL OF EXCISE AND OTHERSCOURT OF APPEALTILAKAWARDENA, J. (P/CA)C.A. 283/2003SEPTEMBER 11, 2003
Writ of Certiorari – Decision of Public Service Commission – Applicability of the17th Amendment – Constitution. Article 55 and 61A (17th Amendment) – Isthere a difference? – Proper Court?
The petitioner sought (1) to quash the decision taken by the Public ServiceCommission to cancel the examination (2) a writ of mandamus to release anddeclare the results of the examination already held.
Held:
Art 55 (5) restricted the application to orders or decrees concerningappointment, transfer, dismissal or disciplinary control of a public offi-cer. Whereas Article 61A (17th amendment) dealt with any type of deci-sion so long as it is made pursuant to a power conferred.
The only ground upon which the writ jurisdiction could be sought undercircumstances where a challenge was being made regarding the pro-motion and/or appointment, transfer etc., was where the person whomade the impugned decision, did not have any legal authority to makesuch a decision.
No claim has been made that the person who make the promotion hadno legal authority.to make such decision.
'Ouster clause’ precluded the jurisdiction of the Court of Appeal andgrants exclusive jurisdiction to the Supreme Court. A person aggrievedby the decision would have to invoke the jurisdiction of the SupremeCourt under Article 126.
APPLICATION for a writ of certiorari.
Cases refered to:
Abeywickrema v Pathirana 1986 1 SRI LR 120
Gunarathne v Chandrananda de Silva – 1998 3 SRI LR 265
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[2003] 3 Sri L.R
Kotakadeniya v Kodithuwakku – 2000 2 SRI LR 175
Atapattuv People’s Bank- 1997 1 SRI LR 208
Bandaranayake v Weeraratne – 1981 1 SRI LR 10 at 16
Hettiarachchi for the petitioner.
M.R. Ameen, State Counsel for the respondents.
Cur.adv.vult
October 23, 2003
SHIRANEE TILAKAWARDANE, J., (P/CA)The petitioner has preferred this application seeking a writ ofcertiorari to quash the decision and/or order of the 5th-13th respon-dents to cancel the examination held on the 30th of November 2001for the selections of candidates for promotion to the rank of ExciseInspector. He has also sought a writ of mandamus to direct the 5th-13th respondents to release and declare the results of the candi-dates of the examination held on the 30th of November 2001 for theselections of candidates for promotion to the rank of ExciseInspector.
It was the contention of the petitioner that he had beeninformed by the 1st respondent by a circular dated 31st of January2003, which letter was received by the petitioner on the 7th ofFebruary 2003, that'the examinations held on the 30th of November2001 for appointments of the post of Excise Inspector had beencancelled by the Secretary of the Public Service Commission byletter dated 18th of January 2002. The application was based on thefact this cancellation was arbitrary and capricious and therefore ille-gal as no proper inquiry had been had prior to the making of suchorder.
The State Counsel appearing on behalf of the Attorney-General and the other respondents raised a preliminary objectionpertaining to jurisdiction, stating that this Court did not have juris-diction to entertain this application in view of Article 61 A, which hasbeen introduced by the 17th Amendment of the Constitution of the
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Katugampola v Commissioner General of Excise and others
CA(Shiranee Tilakawardane. J, (P/CA)) ■^09
Democratic -Socialist Republic of Sri Lanka. An analysis of Article61 A shows that it was introduced by an amendment to Article 55
of the Constitution which had been applicable to decisionsmade by the Public Service Commission until the introduction ofthis amendment by the 17th Amendment to the Constitution. Ananalysis of these two provisions which are as follows;
Article 55 (5):-
Subject to the jurisdiction conferred on the Supreme Courtunder paragraph (1) of Article 126 no court or tribunal shall havepower or jurisdiction to inquire into, pronounce upon or in any man-ner call in question, any order or decision of the Cabinet ofMinisters, a Minister, the Public Service Commission, a Committeeof the Public Service Commission or of a Public Officer, in regard toany matter concerning the appointment, transfer, dismissal or dis-ciplinary control of a public officer.
Article 61A of the 17th Amendment to the Constitution:-
Subject to the provisions of paragraph (1), (2), (3), (4) and (5)of Article 126, no court or tribunal shall have power or juris-diction to inquire into, or pronounce upon or in any manner callin question any order or decision made by the Commission, aCommittee, or any public officer, in pursuance of any power orduty conferred or imposed on such Commission, or delegatedto a Committee or public officer, under this Chapter or underany other law.
show that the Article 61 A clearly enlarged this scope and ambit ofArticle 55 (5).
Admittedly, both these articles were applicable to a decisionmade by the “Public Service Commission" or a Public Officer whoexercises delegated authority either from the Cabinet of Ministersor from the Public Service Commission, or a Committee of suchCommission. However, Article 55 (5) restricted the application toorders or decisions concerning “appointment, transfer, dismissal ordisciplinary control of a public officer”. Article 61 A on the other handconcerned any type of decision so long as it was made pursuant toa power conferred or imposed on such body. It is of significancehowever to note that whether it was Article 61 A or Article 55 (5)
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nevertheless these Articles would have precluded the jurisdiction ofthis Court as the decision that has been challenged before thisCourt relates to the promotion being made by the Public ServiceCommission. Therefore whether to consider the application ofArticle 55 (5) or Article 61A nevertheless the decisions by thePublic Service Commission have been precluded and the jurisdic-tion was vested even prior to the amendment of the Constitution inthe Supreme Court which has jurisdiction to inquire into the validityof the decision of the Public Service Commission in terms of article126 of the Constitution, that is in the exercise of the fundamental 7orights jurisdiction.
This aforesaid Article 55 (5) and 61A of the said amendmentprecluded the correctness of a decision being investigated intoupon except by the Supreme Court of Sri Lanka, which had solejurisdiction to inquire into this matter. No claim has been made inthis case by the petitioner to the fact, that the person who made thepromotion had no legal authority to make such decision. In otherwords, the only grounds upon which the writ jurisdiction could besought under circumstances where a challenge was being maderegarding the promotion (and/or appointment, transfer etc.) was 80where, the person who made the impugn decision did not have anylegal authority to make such 'decision. (Abeywickrema vPathirana^’ Gunaratne v Chandrahanda de Silvai2)' Kotakadeniyav KodituwakktP) In considering the writ jurisdiction of this Court, itis important to observe that Article 140 of the Constitution stipulatesthat the Court of Appeal may issue writs “subject to the provisionsof the Constitution”. Therefore the ouster clauses contained in ordi-nary legislation would not effectively restrict or preclude the juris-diction granted by Article 140 of the Constitution. Nevertheless therestriction contained in Article 55 (5) and the Amended Article 61 A 90as these are ouster clauses stipulated in the Constitution itself, thepowers of this Court would be restricted by these provisions con-tained in the Constitution. It was held in the case of Atapattu vPeople’s BanlW' Bandaranayake v Weeraratne<5) that.the ousterclauses contained in the Constitution would bar jurisdiction that hasbeen granted within the Constitution and would therefore suchouster clause adverted to above would be a bar to the entertainingof writ applications to invoke the writ jurisdiction by this Court.
CA
Easwary v Sivanathan and others
(Amaratunaa. J.)
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Accordingly, this Court holds that the ouster clause contained inArticle 61 A of the Constitution precludes the jurisdiction of thisCourt and grants exclusive jurisdiction to the Supreme Court tohear and determine all such matters envisaged within the scopeand ambit of such Article. In these circumstances,. the personaggrieved by the decision would have to invoke the jurisdiction ofthe Supreme Court to inquire into the matter in terms of Article 126of the Constitution as a violation of a fundamental right.Accordingly, we accept the preliminary objections raised by therespondents in this case and the application of the petitioner is dis-missed in limine. No costs.
Application dismissed
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