Sri Lanka Law Reports
[ t997] 3 Sri LR.
September 24, 1997.
The six petitioners are assistant teachers who were serving in sixdifferent Tamil medium schools in the Nuwara Eliya District. Eachpetitioner received a letter dated 1.2.95 summarily transferringhim/her; the reason given was that he/she had been recruited forservice only in “estate schools” (©tsj era<§). Consequent upon protestsand objections, the transfers were deferred until May 1995. Thepetitioners complain that the transfers were contrary to Article 12(1)because they were irrational, arbitrary, and capricious, and to Article12(2) because they were politically motivated.
It is not in dispute that the petitioners were liable to be transferredto other Tamil medium schools within the same District, and that thetransfers were not routine year-end transfers. Several other assistantteachers were also transferred at the same time, and for the samereason, but they did not complain to this Court.
According to the statistics furnished by the petitioners thesetransfers aggravated the existing shortages of teachers in those sixschools:
Required Available Transferred
St Gabriel's BMV232388(35%)
St Mary's MV6229942 (68%)
Holy Rosary TV3724215(40%)
Highlands MV61541522(36%)
St Joseph's MV4730825(53%)
Sr John Boscoe MV373436(16%)
These figures speak for themselves. None of the schools hadexcess teachers, and the only one (St Gabriel's) which had therequired number, ended up with a shortage of 35%, while St Mary'sended up with 68%. The school which was least affected had ashortage of 16%. When the schools are looked at collectively, they

Nizam and Others v. Elkaduwa, Secretary, Ministry of
Education Central Province and Others (Fernando, ACJ)
initially had a teacher shortage of 27%; but despite that, a further17% were transferred, increasing the shortage to 44%.
That is not all. The petitioners also claimed that the transfers werenot designed to meet more serious shortages in the four schools towhich they were transferred; they pointed out that the transferscreated, and in one instance aggravated, excesses of teachers:
Shannon TV121053(25%)
Fruilhill TV8811(12%)
Panmour TV192258(42%)
Dickoya TV121457(58%)
Only Shannon TV had a shortage of teachers, and there the transfersresulted in an excess of three. Considered collectively, these fourschools had small excess of about 6%, and the transfers inflated thatexcess to 37%. The figures justify only one conclusion, that these fourschools did not have a greater need than the former six.
In his affidavit, the 1st respondent, the Secretary to the ProvincialMinistry of Education, denied the petitioners' averments relating tothe above figures, and claimed:
“. . . in almost all schools in the Central Province there is adeficiency of teachers. In Estate Schools it is more acute thanIn other schools. I annex hereto marked '1R9' statistics showingthe deficiency of teachers in the Ambagamuwas Division to whichthe petitioners belong which shows that the deficiency of teachersin Estate Schools [is] more grievous than in other schools.”
But no such documents was tendered to Court, and in the 1stpetitioner's counter-affidavit he said that 1R9 had not been served onthe petitioners, and reserved his right to reply to it.
The petitioners' position thus remains uncontradicted. The 1strespondent would have had ready access to all the relevant
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[1997] 3 Sri LR.
statistics, but did not produce any. His claims – that there was aserious shortage of teachers in the four schools to which thepetitioners were transferred, and that the shortage in the EstateSchools was more acute than in other schools – is thereforeunsubstantiated and unacceptable. Contrary to common sense,teachers were being taken away from where they were really needed,and put where they were not, creating a shortage of 44% in theformer and an excess of 37% in the latter. Accordingly, it is clear thatthe reason for the transfers was not the best interests of the childrenin the schools concerned, and it bears repetition that it is thoseinterests which must always be paramount in any sensible system ofeducation and educational administration. The power to transferteachers is not unfettered; it exists for the purpose of ensuringfairplay for teachers, efficiency for schools, and, above all, a propereducation for children; and it must be used for those purposes.
The petitioners contend that they were recruited to serve in“Plantation Sector Tamil medium schools" in the District, and notmerely in what were formerly “estate schools”; when the former“estate schools" were taken over by the Government, they becameGovernment schools – just like any other Government school, big orsmall, urban or rural; “estate schools" cannot now be construed as areference to the former “estate schools” which had ceased to exist;and that expression now refers to Government schools in theplantation sector.
The respondents’ position is that the petitioners were recruitedto serve, and are entitled to serve, only in one category ofGovernment Tamil medium schools in the District, namely, “estateschools"; those are the schools established and maintained onestates (to which Part VI of the Education Ordinance (Cap. 185)applied); although those schools were taken over by the Governmentbetween (1962 and 1990), the references in various notifications,letters of appointment and other documents to “estate schools" are tothese former “estate schools", even though the schools, and perhapseven the estates, are now vested in the State; and while it istrue that several different expressions have been used – 0q oxb$.eqpidod mod etCgoOod oxb$ – all these refer to the former “estateschools".

Nizam and Others v. Elkaduwa, Secretary, Ministry of
Education Central Province and Others (Fernando, ACJ)
In the absence of an applicable definition, I have to determinewhat “estate schools" meant, and whether the other expressionsused were synonymous. Apart from physical location andcharacteristics, some consideration of the people whom thoseschools were intended to serve is not irrelevant. For that reason Imust refer to a letter dated 28.2.95, written to the 1st respondent by atrade union formed to take up the cause of some of the teachers whowere transferred, in which it was stated that, according to statisticsprovided by the respective Principals, the great majority of thestudents of the following schools “come directly from estates":
St Gabriel’s BMV75%
St Mary's MV91%
Holy Rosary TV100%
Highlands MV85%
St Joseph's MV88%
Sr John Sosco MV79%
The 1st respondent did not contradict these figures. It seems tome that these schools were serving the children of those employedon estates almost to the same extent as other schools physicallylocated on estates.
Where rules and regulations, or terms and conditions inagreements, are not free from ambiguity, subsequent practice maysometimes throw light on what was intended. It is not in dispute thatat the time of the impugned transfers ail six petitioners were servingin schools which were not former "estate schools", and had been soserving for periods ranging from about two to five years.
The 1st respondent did not deny that fact, but explained that sometransfers had been made in violation of the letters of appointment;that such transfers aggravated the problems of insufficient teachersin the estate schools; and that the number of estate school teachers“who had gradually got themselves transferred out of the estateschools increased to such an extent that all the estate schoolsassistant teachers had to be re-transferred back to estate schools in
Sri Lanka Law Reports
[1997] 3 Sri LR.
accordance with the terms of their letters of appointment". Thisconfirms that there was a widespread practice of transferringteachers who were in the same category as the petitioners to schoolswhich were not former “estate schools".
The 1st respondent produced a circular issued in February 1991by the Education Service Committee of the Public ServiceCommission, as well as a letter dated 31.7.91 which he himself hadwritten to the Provincial Director of Education of the Central Province.The gist of these two documents was that assistant teachersrecruited to serve on "estate schools" were working elsewhere, andthat this should be rectified. His own letter directed their transfer toestate schools in which there were vacancies. Nevertheless, evenafter that circular and that letter, four of the six petitioners had beentransferred to other schools. To say, therefore, that they had "gotthemselves transferred out" is to imply that all the officers who,directly or indirectly, authorised the transfers bore no responsibility forthose transfers. I see no reason why the petitioners should bedeprived of the benefit of the presumption of the regularity of officialacts, unless there is evidence to the contrary.
I must now turn to the documents directly relevant to the issues fordetermination. The 1st respondent produced a Cabinet decisiondated 24.2.82 approving a Cabinet Paper on “Recruitment of Non-Graduate Teachers for Estate Schools taken over by the Government"(OcqO oSOxbo) 6*5 oxa3) and granting approval "to fill the vacancies fornon-graduate teachers in the Estate Schools" with such recruits. Thisestablishes that the Cabinet had in mind the category of “estateschools taken over by the Government".
However, at the hearing on 1.7.97 we found that the Gazettenotification issued immediately after that Cabinet decision was notavailable. Only one Gazette notification (dated 25.10.83) had beenproduced. That was by the petitioners, and was for the subsequentyear. That was in English, and referred, in the heading and in twoother places, to "Plantation Sector Schools”; it also referred in anotherplace to a "Plantation School”, but made no reference whatever to"estate schools", or to schools taken over by the Government.
Nizam and Others v. Elkaduwa, Secretary, Ministry of
Education Central Province and Others (Fernando, ACJ)
The 1st respondent had not produced any of the Gazettenotifications, but only copies of three drafts, in Sinhaia; a copy of thenotice published in the newspapers on 4.3.82, and copies of twonotices, dated 25.10.83 and 1.11.85, sent to the Government Printer,for publication in the Gazette.
The Sinhaia draft of 4.3.82 corresponded to the Cabinet decision.The 5th and 6th petitioners were recruited in pursuance of thatnotification.
However, the Sinhaia drafts of 25.10,83 (in pursuance of which the1st to 3rd petitioners were recruited in 1986) and of 1.11.85 (inpursuance of which the 4th petitioner was recruited in 1988) useddifferent phraseology, Except for one place in the former draft, bothdrafts throughout referred to “ ©cgsOooi oxti".
The letters of appointment issued to the petitioners, in 1983, 1986and 1988, also displayed no consistency in language, using severaldifferent terms.
Mr. Wijesinghe, PC, for the 1st to 4th respondents, submitted thatall those Sinhaia terms, as well as “Plantation Schools", referred tothe vested former estate schools.
Mr. Goonesekera for the petitioners contended otherwise, andreferred to a report dated 18.8.95 submitted to the Ministry ofEducation by a committee appointed in June 1995 “to suggest adefinition for plantation schools". That committee stated that therewere “two categories of schools catering to the children from estatesin the plantation area": namely, the vested former “estate schools"and the Government schools, which were either established byGovernment or taken over by Government from private institutions.The Committee’s recommendation was:
“ … there are no more estate schools and all are now stateschools. The term “Plantation Schools" was evolved with a specialconcept and a purpose. The purpose is to mark thedisadvantaged schools in the plantation area for developmentthrough positive discrimination. The concept encompassed all
Sri Lanka Law Reports
[1997] 3 Sri L.R.
disadvantaged schools in the plantation area. Therefore all schoolsfalling under the first category (taken over estate schools) andschools that enroll majority of students from estates among thesecond category should be considered plantation schools untilsuch time [as] they are developed to the level of other schools inthe country."
The annex to that report stated that the appointment of PlantationSchool teachers was ‘first made according to the Cabinet Paper 306of 1984 (Continuation) titled ‘Plantation Sector Tamil Medium Schools- Recruitment 1,000 prospective teachers 1984'." The title suggestedthat there might be a difference between the appointments made atvarious times. However, neither the Cabinet Paper nor the decisionwas produced.
Mr. Goonesekera also referred to a project, which the SwedishInternational Development Authority (SIDA) and the Ministry ofEducation was engaged in, for the development of educationalfacilities for "plantation schools".
We accordingly adjourned the hearing to enable the respondentsto produce the official documents which might help to resolve theambiguity – such as the Cabinet Papers, schemes of recruitment andtransfer, the published Gazette notifications, and the approved cadreand salary scales of these and other assistant teachers. But when weresumed we found that nothing more was forthcoming.
The submissions of learned Counsel raise the following questions:
Does the expression “estate schools" (and other similarexpressions) refer only to the former "estate schools" now vestedin the Government?
If so,, do the terms and conditions of service of the petitionersdisentitle them from serving in other schools?
1. It seems to me that the Cabinet intended in 1982 to recruitteachers to serve in only the vested former “estate schools".However, that intention should have been given effect either in the
Nizam and Others v. Eikaduwa, Secretary. Ministry of
Education Central Province and Others (Fernando. ACJ)
form of a scheme of recruitment or a Gazette notification calling forapplications; and the letters of appointment should have been inaccordance with the scheme of recruitment, and failing that, with theGazette notification. In the absence of those documents, the use ofseveral different phrases prima facie tends to suggest that, after1982, a different meaning was intended, and that the SIDA projectwas based on a different concept. The recruiting ambiguity is onewhich probably ought to be decided contra proferentem, against theemployer, because it was the employer alone who drafted and issuedthose documents.
However, I need not decide that question in view of my finding inregard to the second.
2. Mr. Wijesinghe relied heavily on a declaration which, he submitted,every assistant teacher had to sign, including the petitioners. The 1strespondent produced a specimen of that declaration, but not thedeclarations which the petitioners are alleged to have signed.Mr. Goonesekera denied that they had signed any such declaration. Inany event, that declaration was to the effect that the appointee clearlyunderstood that he was being appointed for service in estate schoolstaken over the Government and declared that he would never apply fora transfer to any other Government school. Although Mr. Wijesinghesubmitted that this was in terms of the letter of appointment, in fact theletters of appointment only required a declaration that the appointeewould not apply for a transfer to another District.
One letter of appointment has a condition that the appointment isconfined to plantation schools (©BaoCxscs co&s) in the District, and thateven within the District the appointee has no right to a transfer to anyother schools. The 1986 letter of appointment states that theappointment is confined to the District, and that the appointee has noright to a transfer outside the District; however, there is a handwrittenand unauthenticated addition (in the printed form) that theappointment is confined to "estate schools” (©ej ea3<3) in the District.Such additions are of doubtful validity. The 1988 letter of appointmentstates that service is confined to plantation schools (at8®ocod oxag) inthe District. All the letters provide that the appointing authority hadthe power to transfer the appointee outside the District on promotion,
Sri Lanka Law Reports
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if upon such promotion the appointee’s services were requiredoutside the District.
Prima facie, all the assistant teachers appointed between 1983and 1988, on the basis of the above three Gazettes, are in the sameclass, and no reason has been suggested why there should be anydifference in their terms and conditions of service particularly inregard to transfer. Difference in phraseology in the gazettes and inthe letters of appointment should not too easily be assumed to resultin significantly different terms and conditions. Further, any ambiguityin the letters of appointment should be construed contra proferentem,and in favour of the appointees. Looked at broadly, those letterscontain a restrictive condition which has two aspects: everyappointment is confined to the District, and to one category ofschools within that District. The first is clearly not absolute: while theappointee has no right to a transfer, the appropriate authority maytransfer him/her, in specified circumstances. Service outside theDistrict is therefore neither prohibited nor unlawful. In the absence ofplain words, there is no reason why the second aspect should beconstrued as being absolute. If it is permissible for the appropriateauthority to transfer the appointee to a school outside the District,why should the position be different in regard to a transfer to otherschools within the District?
Another relevant fact is that, after the impugned transfer lettersdated 1.2.95, the 1st respondent by letters dated 22.3.95 informedthe petitioners that it had been decided, inter alia, to transferteachers in the same category as the petitioners to "estate schools"in which there were vacancies.
I hold that, even if “estate schools" and similar expressions refer tothe former vested estate schools, yet the respondents have failed toprove that the terms and conditions of service of the petitionersprohibited their transfer to other schools. The petitioners weretherefore lawfully serving in the six schools to which they had beentransferred; those schools, and the children in those schools,continued to need their services; when the 1st respondent causedthem to be transferred to four "estate schools", he cited in themistaken belief that they were eligible to serve only in the vested
Nizam and Others v. Etkaduwa, Secretary, Ministry of
Education Central Province and Others (Fernando, ACJ)
former “estate schools", and not in those six schools; and if he hadnot made that mistake and had duly considered the needs of theschools and the students, he could not reasonably have concludedthat the impugned transfers were necessary or proper, The transferswere therefore wrongful, arbitrary and unreasonable, and in violationof Article 12(1).
As for the allegation of discrimination on political grounds,although the petitioners have produced affidavits and otherdocuments in support, it is clear that a large number of other similartransfers were effected on the same basis, which I now hold to bemistaken, Indeed, the respondents say that questions were raised inParliament and in the Central Provincial Council as to why teachersrecruited for service in the vested former estate schools were servingelsewhere. It is therefore more probable that the operative cause ofthe impugned transfers was that mistaken belief, and not anythingelse. I therefore reject that part of the petitioners claim.
Although the transfers were with immediate effect, eventually theywere deferred for three months; the transfers were also within thesame division of the Nuwara Eliya District, and not outside. There wasgenuine ambiguity about the legal issues. They have now served forover two years in their new stations, and it would not be in the bestinterests of the schools and their pupils that they should now be re-transferred. The only equitable remedy is therefore compensation. Iaward each petitioners a sum of Rs. 30,000 as compensation andcosts, payable by the Ministry of Education of the Central Provincewithin one month, and I direct the 1st respondent to make all thenecessary arrangements for these payments.
WIJETUNGA, J. -1 agree.
ANANDACOOMARASWAMY, J. -1 agree.Relief granted.