075-NLR-NLR-V-53-O.-T.-DE-SILVA-Petitioner-and-K.-S.-DE-SILVA-Respondent.pdf
NAGAT/TNGAM J.—O. T. de Silva v. K. S. de Silva
8«a
1981Present: Nagallngam J.
O.T. DF. SILVA, Petitioner, and K. S. DE SILVA, Respondent
S. C. 49—In the Matter of an Application for a Writ of Quo Warrantore the office of Member for Ward No. 1 of the Hatton-Diokoya
Urban Council.
Local Authorities Elections Ordinance, No. 03 of 1946—Teacher in Assisted EnglishSchool—Qualification for membership of a local authority—Section 10 (1) Id).
A teacher in an AbsiblcJ English School does not hold office under the Crownwithin the meaning of Section 10 (1) (d) of the Local Authorities ElectionsOrdinance, No. 63 of 1946.
^ I ^HIS was an application for a writ of quo warranto challenging theelection of the respondent as member for Ward No. 1 of the Hatton-Diekoya Urban Council.
A. B. Perera, with T. W. Rajaratnam, for the petitioner.
Colvin R. de Silva, with M. M. Kumarakulasingham, G. T. Samara-wickrema and G. C. Niles for the respondent.
Cur. adv. vult.
October 16. 1951. Nagalingam J.—
The petitioner challenges the election of the respondent as member forWard No. 1 of the Hatton-Dickoya Urban Council on the ground that thelatter was disqualified from being so elected as he was the holder of apublic office under the Crown within the meaning of section 10 (1) (d) ofthe Local Authorities Elections Ordinance, No. 53 of 1946.
Admittedly the respondent is a teacher on the staff of the Sri PadaCollege at Hatton. The evidence of the Principal of the institution showsthat the College belongs to the Buddhist Theosophical Society and thatthe appointments to the staff of the College are made by the GeneralManager of Buddhist Schools, who is an official appointed by the ColomboBuddhist Theosophical Society for the purpose of managing andcontrolling the several institutions established and conducted by it.
The letter of appointment issued to the respondent has been producedby him marked “ A ” and that shows that the contract of service wasentered into by the respondent with the Colombo Buddhist TheosophicalSociety and that under the terms of his appointment he is liable to betransferred to any other school of the Society (subject to certain limi-tations which are not material for the purpose of the present discussion),that his appointment was to be on probation for one year, that he was notto leave the school except at the end of a school year and that he should
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give at least three months’ notice of his intention to leave the school andthat he could with the approval of the General Manager of BuddhistSchools leave the school at any time.
If these were the only factors that have to be taken into considerationfor determining the question as to who is the respondent’s employer,there can be little room for argument that it was the Buddhist Theosophi-cal Society. But there are other matters, says Counsel for the petitioner,which compel one to answer the question differently.
It is said that the respondent joined the School on 21st February, 1948,after what is popularly termed the Free Education Scheme came intooperation, which was in 1945—vide Regulatoin 7 of the School Grants(Revised Conditions) Regulations made by the Executive Committee ofEducation under section 32 of the Education Ordinance, No. 31 of 1939—and after the school had entered the scheme.
As a result of the school entering the scheme it is urged that the em-ployment of the respondent became subject to certain statutory provisionsof, as well as to departmental regulations framed under the EducationOrdinance. Clause 16 of the Code of Regulations for Assisted EnglishSchools (edition corrected up to May 31, 1948) in sub-section 3 providesthat the appointment of a teacher to a school, that is to say, a schoolcoming within the denomination of Assisted English Schools, shall not bemade except with the previous approval of the Director, and by sub-clause 4 enacts that the services of a teacher shall not be discontinuedexcept with the previous approval of the Director. In regard to theteachers who were appointed to the staff of schools that had enteredthe Free Education Scheme the Government also undertook by the afore-said Regulations of 1945 to pay their salaries either directly to them or tothe Manager of the School.
The petitioner emphasises these two aspects5 namely, firstly that neitherthe appointment nor dismissal can take place without the approval of theDirector and, secondly, that the salaries of teachers are paid directlyby Government for his contention that the respondent is one who holdsa publie office under the Crown. The powers of approval of appointmentsvested in the Director are to ensure, as the other sub-sections of Clause16 of the Code would indicate, that satisfactory qualifications are possessedby teachers who are appointed and that not more than the number ofteachers adequate for imparting satisfactory instruction are employed.The first ground would indicate the Government’s solicitousness to ensurethat proper education is imparted by competent teachers and the secondground that the Government is not called upon to make payment forteachers more than are necessary for the efficient functioning of the School.The approval by the Director in regard to dismissal is vested in him forthe obvious purpose of protecting the interests of teachers.
It may be correct to say that as in the last resort the power of veto isvested in the Director, both appointments and dismissals are in the handsof the Director himself. But on the other. hand the Director himselfcannot appoint or dismiss a teacher. While the Director may give hisapproval to the appointment of a teacher, the Manager need not necessarilyappoint him: but, of course, after appointment the Manager cannot dis-laiss the teacher without the approval of the Director. In the latter
NAG AUNG AM J.—O. T. de Silva v. K. S. de Silva
345
case, too, even where the Director sanctions dismissal, the Manager can goback upon his decision to discontinue that teacher and allow him to con-tinue in employment. In other words, the Director cannot himself eitherdismiss or employ a teacher but he has to exercise the powers of vetovested in him for the benefit of pupils and teachers with a view to en-forcing and carrying out the policy of Government in educational matters.In exercising his powers, thereforej the Director does not enter into acontract of service with any teacher employed in an Assisted School.
To turn next to the aspect of salaries to teachers, the payment so madeby Government to teachers is expressly stated to be part of the grantwhich the Government makes to the management of_ a School. Regula-tion 4 of the Regulations of 1945 expressly states that the grant payablefrom state funds shall consist of (a) the amount of salaries -payable to tea-chers and (b) an amount to be known as the maintenance and equipmentgrant. The term " grant ” itself is defined in the Education Ordinancein section 50 as any form of subvention from state funds, includingsalaries paid direct to the teachers by the Department. So that, the salariesof teachers paid by Government constitute nothing more nor less thana subsidy made by Government to the management of the school basedon its educational policy.
The expression “ salaries paid direct to the teachers by the Departmentalso throws light on the relationship between the Government and theteacher. If the teacher were the Department’s or Government’s em-ployee and there was an obligation on the part of Government to pay,there would have been no purpose in alluding to the payment being madedirect to the teacher, for the liability of Government could only be dis-charged by payment to the teacher, and that would normally be by pay-ment direct to the teacher and no occasion would have arisen for anyexpress statement to that effect-. But by employing this expressionattention is rather drawn to the verity that salaries are not payable byGovernment direct to the teachers though in fact paid direct to them.
Furthermore, by the pointed explanation that “ salaries paid direct tothe teachers ” are comprehended within the term “ grant ”, a clear in-dication is given that the salaries paid are paid qua grant, and grant,it must be remembered, is made as provided by clause 29 of the Code to theschool and not to the teacher. Besides, by clause 4 of Regulation 4 of theRegulations of 1945, express provision is .made for the payment of teachers’salaries to the Manager of the School where salaries are not made directto the teachers, indicating that the obligation, if the use of that term maybe permitted, of the Government is to the Manager and not to the teacher.
Moreover, the salary of a teacher itself is referred to as the Government’scontribution in clause 37 of the Code, and the special significance of theterm " contribution ” gains in importance when regulation 4 (2) of theRegulations of 1945 is looked at, for it provides that the salary of eachteacher shall be calculated in accordance with the salary scales pre-scribed by the Code, and no sum paid to any teacher in excess of the salarypayable according to the scales shall be taken into consideration. Quiteclearly, then, the Manager- of the school may contract with a teacher, ifhe so so desires, to pay him a salary in excess of what is prescribed by the
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Code, and in such an event, while the Government will pay only so muchof the teacher’s salary as would fall within the scale prescribed by theCode, the excess would have to be paid by the Manager.
TJiat apart from the contract entered into by the respondent withthe General Manager of Buddhist Schools, no other contract has beenentered by him with the Director of Government is not gainsaid. Thereis no contractual relationship between the Government and the teacherin regard to his pay or conditions of service. It is true, for instance, thatwhere the teacher takes leave or absents himself for a longer period thanis permitted by the Code, Government will refuse to pay his full salarybut only pay such reduced salary in accordance with the Regulations;but here, again, there is nothing to prevent the Manager and the teachermaking such stipulations as they 'may think proper in regard to leave orabsence in substitution of those fixed by Government in the Code. Again,should the Government for some reason or other decide not to pay thesalaries of teachers, the liability of the Manager to pay would yet continue,and it has not been suggested that a teacher would be entitled to sue theGovernment for recovery of his salary.
The payment, therefore, by Government of the salaries to the teacher,though made direct, cannot but amount in law to payment on behalf of theManager and in liquidation of the Manager’s liability to the teacher.
In this view of the matter, it cannot but follow that the respondentis not a person holding an office under the Crown.
Mr. Perera for the petitioner strongly pressed upon me the case ofTransvaal Provincial Administration v. Molokone 1 where, after consideringvarious regulations, the view was reached that the teacher there was a•servant of the Crown, but as the judgment itself clearly indicates, theopinion was based upon a construction of the relevant regulations, andthe case is of little assistance to us here unless the regulations them-selves have some degree of identity -with ours. In that very judgment acase under the name of Wentzel v. Krige et al.2 is referred to. The factsin that case would seem to be similar to the facts of the present case,and there it was held that a teacher in a public school was not holding anoffioe of profit un.der the Government. What provisions of the law theJudges had to consider in that case, however, do not appear from thesummary of the judgment. The only safe rule is that each case must bedecided on its own facts.
Having regard, therefore, to the facts and circumstances relating to the■employment of the respondent, I am clearly of opinion that the respondentdoes not hold office under the Crown. It is unnecessary to consider thefurthei question whether the respondent holds an office which could bedeemed to be a public office.
The application ia refused with costs fixed at thirty-five guineas.
Application refused.
1 S. African L. R-, Transvaal Provincial A Local Division, 1931, page 435.
• 27. S. C. 123.