to appoint such officers and servants as may be necessary
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for carrying out the activities of the Bank, to fix the wages,salaries or other remuneration of such officers and servants anddetermine the terms and conditions of service of such officersand servants;
(y)to provide welfare and recreational facilities, andaccommodation facilities, to officers and servants employed bythe Bank;
(z)to enter into and perform all such contracts, whether in oroutside Sri Lanka, as may be necessary for the exercise of thepowers and the performance of the duties of the Bank.
(aa) to make rules in relation to its officers and servants includingtheir appointment, promotion, remuneration, disciplinary controland the grant of leave to them;
(bb) to make rules in respect of the administration of the affairsof the Bank; and
(cc) to do all such other things which in the opinion of the Boardof Directors of the Bank may be necessary to facilitate theproper carrying on of the business of the Bank.
The petitioner contended that the 1 st respondent bank is vestedwith powers which should be exercised for the public benefit and assuch when the 1st respondent bank exercises the said powers itdisplays a public character.
The question that has to be determined is whether the 1strespondent has exercised its Rule making power under Section 42of the said Act to make rules in relation to its officers and servantsincluding their appointment , promotion, remuneration, disciplinarycontrol and the grant of leave to them. Section 42 of the said Actprovides:
“42. The Board may make rules in respect of all or any mattersfor which rules are required or authorized to be made under thisAct or any other matter necessary to enable the Bank toeffectively carry out and performs its powers and duties underthis Act. ”
From the above provision the rule making power in relation tothe promotion of the officers of the said Bank is vested with theBoard of Directors. The circular marked P2 is not a rule made by
Mallika and Others v
CARuhunu Development Bank (Sriskandarajah, J.)181
the Board of Directors, but it is a communication between theadministration of the bank and its staff. There is no provision of theAct under which P2 has been promulgated or issued. P2 does nottake the form of a rule for promotion.
In K.S.De.Silva v National Water Supply and Drainage Boardand another) at 3 G.P.S.De.Silva, J. with H.A.G.De Silva, J. andJameel, J. agreeing held:
“The case of Rodrigo v The Municipal Council, Galle andanother,<2) appears to me to have a direct bearing on the mattersthat have arisen for decision on this appeal. That was a casewhere the petitioner who was Revenue Inspector in theMoratuwa Urban Council applied for a writ of Mandamus. Hewas transferred to the Galle Municipal Council (1st respondent)by the Local Government Service Commission. When thepetitioner reported for work at the Galle Municipal Council, hewas refused work and he was not paid his salary. The petitionersought a writ of Mandamus to order the respondents (theMunicipal Council and the L.G.S.C.) “to give the petitioner workand to pay his salary.” In refusing the application for the writ,Windham, J. stated that one of the matters upon which the courtmust be satisfied is that “the petitioner is being prevented fromexercising a right to perform certain duties and functions legallyconferred upon him by virtue of his holding an office carryingwith it such a right …. In the present case the petitioner has nopowers or duties statutorily vested in him. It may well be that heis a public servant and in the employ of a public body (i.e. the1st respondent)…But that is not the test. The question iswhether he has public duties and powers vested in him bystatute, so that he can be said to be statutorily entitled toexercise them.” In short, Windham.J. held that the petitionerwas not the holder of an office “to which specified duties andpowers had been statutorily attached.”
Another decision which throws some light on this question isWijesinghe v Mayor of Colombo and another The petitionerwas appointed to the post of Charity Commissioner by theLocal Government Service Commission. The MunicipalCouncil, Colombo, declined to recognize his appointment. Thepetitioner moved for a writ of Mandamus to order the
182Sri Lanka Law Reports[2008] 2 Sri L.R
respondents (the Mayor and the Secretary of the ColomboMunicipal Council) “to permit him to perform his duties in the
exercise of his lawful functions as Charity Commissioner
In allowing the application, Gratiaen.J. stated: “I do not agreethat the petitioner’s right to the office of Charity Commissionerwas only of a private nature which could adequately beenforced in a civil suit. The petitioner is an executive officer ofthe Council by virtue of Section 176 of the Municipal Councils
Ordinance of 1947 many, if not all, of the powers and
functions contemplated are clearly powers and functions of apublic nature” (at pages 90 and 91). See also the case ofPerera v Municipal Council of Colombo(4).
In support of his submission that the petitioner in theapplication before us is seeking admission to an office which isof a public character, Mr. Perera referred us to sections 68 and69 of the National Water Supply and Drainage Board Law No.2of 1974. But these two sections refer only to the powers andduties of the General Manager of the Board and the powers ofthe Board to appoint “to its staff such officers and servants asthe Board may deem necessary and determine their terms ofremuneration and other conditions of employment.” We werenot referred to any rules made under the said Law No.2 of1974 which speak of the powers or duties attached to the postof Accountant. In my opinion, the office to which the petitioneris seeking admission is not a “public office” of the kind whichattracts the remedy by way of Mandamus. It is an officeessentially of a contractual or private character. Accordingly,as a matter of law, the writ of Mandamus does not lie and theapplication must fail.
In Piyasiri v People’s Bantt5) at 53 Wijeratne J held:
"Having regard to the constitution and functions of therespondent Bank, I hold that there is no public duty or statutoryduty in this case to call the petitioner for this interview. As iswell known this Writ will not be issued for private purposes.
Staff Circular 186/82 (which adopts the Nihal WiratungaReport on the Minister’s directions) is only a circular and not aregulation having statutory force. The said circular lays down
Mallika and Others v
CARuhunu Development Bank (Sriskandaraiah. J.)183
the policy and does not purport to provide for every step. Theimplementation of this circular is a private and internal matterof the respondent Bank. To call for recommendations fromsuperior officers before a promotion is effected is a commonpractice based on prudence prevalent everywhere in the worldand is nothing unusual. I am of the view that in theimplementation of the circular the respondent Bank has amodicum of discretion as to whether recommendations shouldbe sought from superior officers before effecting promotions.”
The respondents also brought to the notice of this Court asimilar application challenging the non-selection for theappointment to Grade 3-III of the Bankers’ Service under acircular calling for applications for promotion to the said post wasrefused by the Court of Appeal in R.M. Jayasena and 8 others vUva Development and 48 others<6> based on K.S.De Silva vNational Water Supply and Drainage Board (supra). The Leaveto Appeal against this Order was also refused by the SupremeCouiK7).
There is no provision under the Act which confers anystatutory status on the office of the petitioners or that of theAssistant Managers Grade 3-III. Therefore neither as to the officeor position under consideration nor the scheme of promotionmarked P2 has any statutory flavour or underpinning. Thereforethe petitioners are not entitled to the relief claimed and thisapplication is dismissed without costs.
Application dismissed.