012-SLLR-SLLR-2004-V-3-NANDISENA-SE-ZOYSA-v.-THE-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf
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Sri Lanka Law Reports
[2004] 2 Sri L.R
NANDISENA DE ZOYSAwTHE UNIVERSITY GRANTS COMMISSION AND OTHERSCOURT OF APPEAL.
SRIPAVAN, J.
CA 299/2000.
MARCH 12 AND 30, 2004 ANDJULY 14, 28, 2004.
Legal duty – Recommendation of Political Victimization Committee – Is therea legal duty to implement the recommendation? – Moral obligation – Doeswrit lie to compel performance?
The petitipher who was re-employed as a Senior Assistant Bursar was sent toSamanthurai; without reporting, he requested a transfer closer to Colombo;which was refused by the Secretary of the. UQC (1st respondent). Thereafterthe petitioner appealed to the Political Victimization Committee (PVC) andindicated to the 1st respondent (U.G.C.) that he could assume duties after adecision was taken by the PVC. The PVC recommended that the petitioner bere-instated in service. However, the petitioner was not allowed by the 1strespondent to report for duty pursuant to the recommendation of the PVCwhich was approved by the Cabinet.
The petitioner sought a writ of mandamus.
CA
Nandisena De Zoysa v. University Grants Commission and others
.(Sripavan, J.) 87
Held:
Per Sripavan, J.
"The 1st and 2nd respondents have a moral obligation to implement therecommendation of the PVC in so far as it related to the petitioner.”
However mandamus can be issued only to compel the authority toperform its statutory duties and does not lie to compel performance ofa moral obligation.
Mandamus lies to secure the performance of a public duty, in theperformance of which an applicant has sufficient legal interest.
APPLICATION for a writ of mandamus.
Cases referred to:
Mendis v Seema Sahitha Panadura Janatha Santhaka PravahanaSevaya and Others -1995 2 Sri L. R. 284 at 294..
Weligama Multipurpose Co-operative Societies Ltd v ChandradasaDaluwatte – 1984 1 Sri L.R. 195.
Sannasgala v University of Kelaniya and Members of the UniversitySenate – 199t 1 Sri. L.R. 201
Chamantha Weerakoon with Madu Kurerafor petitioner.
A. Gnanathasan, Deputy Solicitor General for respondents.
. Cur. adv. vult.
August 27, 2004.
SRIPAVAN, J.The petitioner was appointed to the post of Senior AssistantBursar by the first respondent with effect from 11th February, 1982and was attached to the second respondent University. The ViceChancellor of the second respondent University interdicted thepetitioner with effect from 15th July 1985 in view of certainirregularities pointed out by the Auditor-General. A disciplinaryinquiry was held into the charges levelled against the petitioner andat the conclusion of the said inquiry, the Vice Chancellor of thesecond respondent University on 4th April 1989 informed that it has
been decided by the first respondent to dismiss the petitioner witheffect from 15th July, 1985 in accordance with the findings reached.On an appeal made by the petitioner to the University ServicesAppeal. Board against the dismissal, the said Board affirmed theorder of dismissal by letter dated 7th May, 1992.
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The petitioner thereafter on 6th May, 1992 submitted a petitionto the Speaker of Parliament which was referred to the Committeeon Public Petitions. At the inquiry held before the Committee, on therecommendation of the Council of the second respondent, the firstrespondent decided to re-employ the petitioner as a SeniorAssistant Bursar of the affiliated University College at 20Sammanthurai. Accordingly, the petitioner was informed by letterdated 10*h February, 1994 marked P5 to assume duties at theaffiliated University College, Sammanthurai without any backwages.
The petitioner however without reporting to the affiliatedUniversity College at Sammanthurai by letters dated 23rd February,1994 and 24th February, 1994 marked P6 and P7 respectivelyaddressed to the Secretary of the first respondent Commissionrequested a transfer closer to Colombo due to security reasonstogether with back wages during the period the petitioner was out 30of employment. The Secretary of the first respondent University byletter dated 28th March, 1994 marked P8 made it clear that it wouldnot be possible to accommodate the petitioner in an institutioncloser to Colombo as there were vacancies only in Sammanthuraiand in the affiliated'University College at Trincomalee. The saidletter also indicated that the first respondent Commission wouldconsider appointing the petitioner to the affiliated University Collegeat Trincomalee if he was willing to assume duties. The petitionerwas also informed that with regard to his back wages, the first andthe second respondents agreed at the inquiry before- theCommittee on Public Petitions that the petitioner’s reinstatement inservice would be subject to a condition that the period during whichthe petitioner was out of employment be considered as no pay.
Since the petitioner did not report for work for more than a year,the Secretary of the first respondent Commission by letter dated27th April 1995 marked P9 informed the petitioner to intimate theCommission by return of post as to whether the petitioner wasprepared to report for duty at the affiliated University College,Sammanthurai. The petitioner’s reply to the Commission was tosubmit his appeal dated 23rd February 1994 marked P6 to the new 50Chairman and members of the first respondent Commission forreconsideration of his appeal and to grant relief.
Nandisena De Zoysa v. University Grants Commission and
CA__others (Srioavan. J.)89
Tlie first respondent again by letter dated 9th November 1995marked P11 requested the petitioner to assume duties as a SeniorAssistant Bursar at the Wickremarachchi Ayurveda Institute,YakkaJa which was affiliated to the University of Kelaniya upon adecision taken by the government. The petitioner by his letter dated26th November 1995 marked P12 informed the. Secretary of the. first respondent Commission that he has reported his grievances tothe Political Victimization Committee-»(hereinafter referred to as 60PVC) and would assume duties after a decision was taken by thePVC.
Thereafter, the first respondent by letter dated 25th November1997 marked P13 informed the petitioner that the recommendationof the PVC relating to the petitioner had been forwarded to the ViceChancellor of the University for implementation. The counsel for thepetitioner strongly contended that the respondents are under alegal duty to implement the recommendation of the PVC relating tothe petitioner.
The Chairman of the first respondent Commissions paragraph 7015 of his affidavit dated 2nd April, 2001 stated that the Secretary,Education Service Committee of the Public Service Commission-by letter dated 10th October 1997 marked 1R5 informed the firstrespondent Commission that the Cabinet of Ministers hadapproved the recommendation of the PVC and that the petitionerbe reinstated in service with effect from 1s.1 January, 1995. TheChairman of the 1st respondent in paragraph 16 of his affidavitfurther stated that he decided to inform the Secretary, EducationService Committee that the petitioner failed to assume duties eventhough he was re-instated pursuant to a recommendation made by 80the Public Petitions Committee.
It was the contention of the learned counsel for the petitionerthat the first respondent has failed to give its mind to therecommendation of the P.V.C. after the first respondent forwardedthe letter dated 27th November 1997 marked P13. Having acceptedthe petitioner’s letter dated 26th November 1995 marked P12without any protest, the first respondent Commission should haveconsidered the recommendation of the PVC. I agree with the
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learned counsel for the petitioner that the offers made toSammanthurai, Trincomalee and Yakkala were all made prior to therecommendation of the PVC and respondents could not rely onsuch offers now. No evidence has been placed by the respondentsto prove that the petitioner was asked to report for duty pursuant tothe recommendation of the PVC which was approved by theCabinet of Ministers on 18th December, 1996 as alleged. Thus, Iam of the view that the first and the second respondents have amoral obligation to implement the recommendation of the PVC inso far as it is relates to the petitioner and I hope they would do sowithout any further delay.
This court in Mendis v Seema Sahitha Panadura JanathaSanthaka Pravahana Sevaya and others^) observed that a writ ofmandamus lies only to compel the discharge of a statutory duty bya public authority.. In Weligama Multipurpose Co-operativeSocieties Ltd. v Chandradasa Daluwatte (2) the Supreme Courtheld that “Mandamus lies to secure the performance of a publicduty in the performances of which an applicant has sufficient legalinterest’. Similarly in Sannasgala v University of Kelaniya andMembers of the University Senate<3) the Supreme Court observed“that the petitioner has failed to establish that the respondents aresubject to any public or any statutory duty which entitled thepetitioner to the writ of mandamus he seeks to obtain.” Thus,mandamus can be issued to compel an authority to perform itsstatutory duties and does not lie to compel performance of a moralobligation .The re is no express law whereby the respondents canbe compelled to accept the recommendation of the PVC. It is adiscretion that is vested with the first and the second respondents.The petitioner Tias no such absolute right as he claimed to theexclusion of any discretion exercisable by the respondents in thisregard.
The petitioner having failed to satisfy that he has a legal right forthe performance of a statutory duty by the respondents againstwhom this writ is sought, this court cannot issue mandamus againstthe respondents to implement the recommendation of the PVC inso far as it relates to the petitioner.
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CA
Salih v. Hemawathie
91
Accordingly the petitioner’s application is dismissed,, however inall the circumstances without costs.
Application dismissed.