Sgd/TPF de Silva/IGP
Sri Lanka Law Reports
120001 2 Sri L.R.
P21: Document showing strength of the PoliceDepartment as at 30. 11. 94 by Director Personnel to IGP. Italso sets out the cadre as 05 S/DIG'S, 29 DIG's and 12 Super.DIG’s and so on. P22, the Administrative Report of the Policefor the Year 1991, P23 for 1992, and P24 for 1993 certified bythe respective IGP’s and in all these reports the ranks of S/DIGand DIG are distinctly listed the latter following the former inhierarchy. P25 is the circular regarding Badges of Rank. Interms of P25:
S/DIG: State Emblem, Star and floral wreath with crossbattens, Gorget patches of black velvet with “Palapethi” designin Silver on either side and a Thick Silver line at the center withChromium plated small button.
DIG: State Emblem with floral wreath cross battens.Gorget patches of black velvet with “Palapethi” design in Silveron either side and a thick silver line at the center withChromium plated small button.
It would appear that the badge of the S/DIG is differentfrom that of the DIG in that the badge of the DIG is minus theStar as is in the S/DIG badge.
In terms of document P5(a), a report prepared byMr. Earnest Perera former Inspector General of Police itappears that as at 03. 07. 1989 there had been three S/DIG'sand nineteen DIG’s. The three Senior DIG's referred to in thatreport are Mr. T. P. F. de Silva appointed as Senior DIG on15. 02. 1987, Mr. M. E. P. Perera appointed on 21. 07. 1987and Mr. R. B. Rajaguru appointed on 01.08. 1988. This showstwo things, firstly (1) that the post of S/DIG had been inexistence even in 1987 and secondly (2) the most Senior PoliceOfficers are appointed to these posts. When Mr. Earnest Pererawrote to the Public Service Commission on 10. 12. 1992 thethree most Senior Officers who were holding the post ofS/DIG's were Mr. T. P. F. de Silva, Mr. M. Ariyasingha andMr. M. Selvaratnam (P5(b)). Subsequently P. B. Ekanayakahad been promoted with effect from 01. 08. 1992.
Kotakadeniya u. KodUhuwakku and Others
(De Silva, J.)
As stated earlier the main question arising out of thisapplication is whether the IGP has the power and authority totransfer a S/DIG. The petitioner’s position is that the PublicService Commission delegated the power of transferring DIG’sto the IGP and that the rank of S/DIG does not fall within therank of DIG but is higher than the rank of DIG. The Is1respondent takes a directly opposed stand and takes theposition that the Public Service Commission delegated itspower of transfer of DIG’s to the IGP and that the S/DIG comeswithin the general rank of DIG and accordingly the IGP has thepower of transferring a S/DIG.
It would appear that up to December 1992 the PublicService Commission had exercised the powers of transfer of allgazetted officers namely S/DIG’s, DIG’s. SSP’s, SP’s and ASP’sand probationary ASP’s. In sequence of events, as per thedocuments marked in this application, in 1992 the then IGPMr. E. E. B. Perera wrote to the Public Service Commissionrequesting that the delegation of power of transfer of all officersof and below the rank of DIG to be given to him. The PublicService Commission obliged by delegating the power oftransfer of all Police officers of and below the rank of DIG to theIGP. This was in 1992. Apparently after 1992 the IGP hadexercised the power of transfer of S/DIG’s consequent to thedelegation on the assumption that he had powers to do so andin that exercise had also transferred S/DIG's as well as thepetitioner on some occasions. It is to be observed that Rll.document tendered by the Inspector General refers totransfers done after 1995. No documentary evidence wasplaced before this Court to establish the fact that the personwho sought and got the authority viz Mr. Earnest Perera or hissuccessor Mr. Frank De Silva had effected any transfer ofS/DIG’s from 1992-1995. The petitioner's acquiescencein these transfers cannot be construed as a bar to hiscomplaining of lack of authority of the IGP in a subsequenttransfer by the IGP. The petitioner complains here because healleges that he had been stripped of his authority and placedin charge of a unit that was earlier manned by a SSP.
Sri Lanka Law Reports
120001 2 Sri L.R
Considering the documents placed before the Court by thepetitioner, namely PI, whereby the petitioner has been“promoted” to the rank of S/DIG from DIG, the OrganizationalStructure of the Police Department wherein the ranks ofS/DIG and DIG have been distinctly listed, the PublicAdministration Circular which sets out the hierarchy to thePolice Department which also lists the S/DIG above the DIGin separate ranks, the different salary scales applicable interms of that circular, the Reports of several InspectorsGeneral of Police where S/DIG’s have been named above theDIG’s and the Telephone Directory, for whatever it is worth asevidence which again differentiates between S/DIG’s andDIG’s, it would appear that the rank of S/DIG is senior to anddistinct from that of DIG.
This is more emphasized by the documents filed by thepetitioner in his counter affidavit where P19 has “promoted"DIG T. N. de Silva posthumously to S/DIG, P20 where the 1GPhad forwarded a report of Permanent Cadres to the SecretaryDefence and listed S/DIG above and over DIG’s, P21 byDirector Personnel again listing S/DIG’s separately, and theAdministrative Reports for 1991, 1992,1993 marked P22, 23.and 24 certified by the respective IGP’s again setting out theS/DIG cadre separate and over the DIG cadre and finally thedifferences in the badges of the two ranks – S/DIG and DIG, allgo to establish that the rank of S/DIG is quite different anddistinct from that of DIG.
The clarification by the Public Service Commissionproduced by the respondent marked (1R3) does not withstandmuch scrutiny in the face of all the above mentioned factorsand I am of the view that a document issued on second thoughtcannot have the effect of validating an invalid act by theIGP – namely the transfer of the petitioner. Furthermore, theletter requesting the delegation of power of transfer by IGP E.E. B. Perera, marked x, did not refer to S/DIG which rank evenat that time was in existence. Accordingly, it would appear inthe face of the documents that IGP E. E. B. Perera himself has
Kotakadeniya v. Kodithuwakku and Others
(De Silva, J.)
chosen to omit the S/DIG’s who are second only to the IGP, inhis request for a delegation of power. It is not possible now forthe Public Service Commission to include in its delegation acategory not mentioned in the request itself. Nor does thedocument advice us of the nature of the discussion referred totherein.
The position taken up by the 1st respondent that the rankof DIG includes S/DIG is untenable and cannot be sustainedbecause it appears from the documents tendered to Court thatthe ranks have been distinct and separate, the S/DIG beingsenior to the DIG and being in a separate cadre. I hold that theInspector General had acted in excess of his authority when hetransferred a Senior Deputy Inspector General.
Question was also raised with regard to the jurisdiction ofthis Court to hear and determine this application. LearnedCounsels for the ist and 2nd respondents contended that thelanguage of Article 55(5) of the Constitution is sufficiently wideto oust jurisdiction of Court to inquire into, pronounce uponor call in question any order of any public officer in regard toany matter concerning the appointment, transfer, dismissal ordisciplinary control of a public officer. Additional SolicitorGeneral Mr. Marsoof relied on several judgments starting fromAbeyawickrama vs Pathirana!11 to Athapattu vs Peoples Bank!21He also submitted that Article 55(5) of the Constitution had tobe understood in the light of Section 22 of the InterpretationOrdinance where it states “order, decision, determination,direction or finding made or issued in the exercise or theapparent exercise of the power conferred on such person,authority or tribunal”. It was the submission of Counsel thateven if the 1st respondent did not have actual authority he didhave apparent authority to make the order or decision markedP8 and therefore the jurisdiction of this Court is ousted.Mr. Gunasekara did not support the argument that Section 22of the Interpretation Ordinance is applicable. However hecontended that the present situation is covered by Article55 (5).
Sri Lanka Law Reports
I2000J 2 Sri L.R.
There Eire several decisions of the Supreme Court where ithas been held that the ouster clause would be of no effect if theorder is made by an officer who does not have legal authorityto do so. In such case the decision is null and void and thepreclusive clause in the Constitution is no bar to review. InChandrasena us Attorney-General131 the Supreme Court heldthat ouster clause in Article 55(5) would not protect anadministrative act which was ultra vires. In Gunaratna vsChandrananda de Silva141 where a public officer was sent oncompulsory leave by the Secretary Defence, where it ought tohave been by Public Service Commission the Court held thatthe act was ultra vires and the ouster clause did not apply.
In the instant case I have held for the reasons set outabove that the Inspector General has no power or authority interms of letter dated 14. 12. 1992 to transfer a S/D1G and thedecision is ultra vires. In these circumstances I hold that thisCourt has jurisdiction to hear and determine the question inissue.
At the hearing of this case the learned Senior Counsel forthe petitioner did not labour the issue of mala fides. Allegationof mala Jides demand proof of a higher degree. In Gunasinghevs Dissanayaka!51 it was held that one who alleges mala fidesshould establish it to the satisfaction of Court. The petitionerin this case apart from the mere allegation of malafides has notestablished the same to the satisfaction of this Court. I holdthat the Inspector General’s action in transferring thepetitioner has been done without malice.
For the reasons stated above I allow the application of thepetitioner and quash the decision on P8 which refers to thetransfer of the petitioner. I make no order with regard to costs.
Application allowed.
Ed. Note
The Supreme Court on – 21. 11. 2000 in SC SPLLA 108/2000refused special leave to the Supreme Court.