015-SLLR-SLLR-1992-2-PARAMESWARY-JAYATHEVAN-v.-ATTORNEY-GENERAL-AND-OTHERS.pdf
3S6
Sri Lanka Law Reports
[1992] 2 Sri LR.
PARAMESWARY JAYATHEVAN
v.
ATTORNEY-GENERAL AND OTHERS
SUPREME COURTFERNANDO, J.
KULATUNGA, J.
RAMANATHAN, J.
P, R. P. PERERA, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. 192/9129 AND 30 JULY 1992.
Fundamental Rights – Article 12(1) of the Constitution – Deprivation ofGovernment Quarters and mala fide transfer by officers of a Provincial Council -Do acts or omission of a Provincial Council or its officers constitute executive oradministrative action ? – Attorney-General's position – Status and role in relationto a Provincial Council – Jurisdiction of the Supreme Court – Liability of the State -Enforcement of Orders of the Supreme Court against the Provincial Council andits officers.
The petitioner was in occupation of Government Quarters as a Pharmacist. TheRegional Director of Health Services, Vavuniya sought to deprive her of the facilityof occupying Government Quarters and when she resisted this the Secretary,Ministry of Health and Women’s Affairs of the North-East Province transferred herto the General Hospital, Batticaloa. She complained of discrimination andinfringement of her fundamental rights under Article 12(1) by the transfer whichshe said was mala fide. The following questions arose for decision.
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Do the acts or omissions of a Provincial Council or its officers constituteexecutive or administrative action?
Has the Attorney-General the right to be heard in relation to a ProvincialCouncil?
What is the liability of the State?
If the Supreme Court has jurisdiction, how were its orders under Article126(4) to be enforced?
Held:
The impugned acts constitute executive or administrative action within theambit of Article 17 of the Constitution which this Court has jurisdiction to reviewunder Article 126.
The Attorney-General has the right to be heard in the proceedings of thecase in terms of Article 134(1) of the Constitution and was properly made a partyunder the Supreme Court rules.
In respect of infringements of fundamental rights arising out of the acts ofpublic officers or public corporation, in addition to the State which is primarilyliable the offending officer is also liable, and accordingly, in appropriate casesboth the State and such officer may be ordered to pay compensation. In anappropriate case the liability of the State would remain purely conceptual, andrelief may be granted against the offender alone.
The 13th Amendment has not eroded the judicial power of the People. Thewrit of the Supreme Court runs through the length and breadth of Sri Lanka. TheSupreme Court has full power to enforce its orders including those made underArticle 126(4).
The medical administration in Vavuniya had helped the petitioner when shewas in difficulty owing to the civil disturbances and permitted her to occupyquarters which no other pharmacist had been permitted to occupy. Her refusal tovacate the premises taints her conduct. She desired to enjoy a facility to whichshe was not entitled.
Cases referred to:
Karunaratne v. Rupasinghe – S.C. Application No. 71/90 S.C. Mins, of17.6.91.
Sirisena v. Perera -S.C. Application No. 14/90 S.C. Mins, of 27.8.91.
Cannossa Investment Ltd. v. £ £. B. Perera -S.C. Application No. 12/90S.C. Mins, of 10.10.90.
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In re Thirteenth Amendment to the Constitution and the Provincial CouncilsBilll 1987] 1 Sri L.R. 312, 323,327.
Ratnasara Thero v. Udugampola 2 F.R.D. 364.
Perera v. The University Grants Commission, 1 F.R.D. 103,104.
Elmore Perera v. Jayawickrema [1985] 1 Sri L.R. 285, 358, 359.
Gunaratne v. People's Bank [tQ86] 1 Sri LR. 338, 354.
Roberts v. Ratnayake [1986] 2 Sri L.R. 36.
A. G. v Liyanage [962] N.L.R. 313,354, 359.
APPLICATION for infringement of fundamental rights.
R. £ Thambiratnam with K. V. Mahendraior petitioner.
R. K. W. Goonasekera with L C. M. Swarnadhipathy, for 2nd, 3rd, 4th and 5threspondents.
A. S. M. Perera, D.S.G. for the Attorney-General.
Cur. adv. vult.
17th September, 1992.
KULATUNGA, J.
The petitioner is a Pharmacist attached to the Base Hospital,Vavuniya under the Ministry of Health and Women’s Affairs of theNorth-East Provincial Council. Since 1989 she has been an officer ofthe Provincial Public Service of that Council. In her application, thepetitioner complained that the 2nd respondent (the Regional Directorof Health Services, Vavuniya) sought to deprive her of the facility ofoccupying government quarters to which she was entitled and whenshe resisted it, the 4th respondent (the Secretary, Ministry of Healthand Women’s Affairs of the North-East Province) transferred her to theGeneral Hospital, Batticaloa; that although the said transfer orderpurports to be for administrative reasons, it has been made mala Mesolely on account of her dispute with the 2nd respondent regardingher occupancy of government quarters; and that the denial of herright to occupy government quarters and the said transfer arediscriminatory and violative of her rights under Article 12(1) of theConstitution. The 3rd and the 5th respondents are the District MedicalOfficer and the Secretary, Provincial Public Service Commission,
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North-East Province, respectively. The petitioner has also named theAttorney-General as a respondent in compliance with the SupremeCourt Rules.
QUESTIONS OF LAW
In this application the jurisdiction of this Court under Article 126 ofthe Constitution has been invoked for the first time in respect ofalleged infringement of fundamental rights by officers of a ProvincialCouncil; and His Lordship The Chief Justice, acting in terms of Article132(3), has directed that this application be heard by a Bench of fiveJudges. I shall first examine the four important questions of law whichhad been raised for consideration by this Bench and in respect ofwhich, the parties have, as directed by this Court, filed writtensubmissions. The questions are as follows:
Whether this Court has jurisdiction under Article 126 on thebasis that "executive or administrative action” includes the actsor omissions of a Provincial Council or its officers;
What is the position, status and role of the Attorney-Generalas the Chief Law Officer of the State, in relation to a ProvincialCouncil, particularly in the context of Article 134 and the Rulesrequiring the Attorney-General to be made a party toapplications under Article 126;
If this Court has jurisdiction, what is the liability of the State,namely the Government of Sri Lanka, in respect of infringementsof fundamental rights by a Provincial Council or its officers.
If this Court has jurisdiction, how are the orders made infundamental rights applications against the officers of aProvincial council, and the Provincial Council itself, to beenforced.
JURISDICTION OF THE SUPREME COURT
Although the above questions have been formulated in wideterms, I have taken the view that having regard to the facts and theissues in this application, it would be sufficient if we express our
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opinion on the said questions strictly to the extent that it is necessaryfor the purpose of deciding the case before us. Viewing the matter inthat light, the first question is whether the impugned transfer and thedeprivation of government quarters constitute “executive oradministrative action” within the ambit of Article 17 of theConstitution. The authors of the Constitution, in their wisdom, havenot defined this expression. However, in the area of the CentralGovernment (“The Centre"), we are very familiar with its meaning,whether in relation to the acts of public officers or officers holdingoffice under public corporations. Ordinarily, it means their acts doneunder the colour of office in the exercise or the purported exercise ofgovernmental functions. There are numerous decisions of this Courton this point almost all of which are referred to in the recent decisionsin Karunaratne v. Rupasinghe® and Sirisena v. PereraIt has beenheld that complaints arising upon judicial orders are not justiciableunder Article 126. See Cannossa Investments Ltd. v. E. E. B. Perera®and the decisions referred to therein.
All the Centre, Article 4(d) of the Constitution provides that theexecutive power of the people is exercised by the President. Anelaboration of this power is to be found in Chapter VII. Articles 30-41(President of the Republic), Chapter VIII, Articles 42-53 (The Cabinetof Ministers) and Chapter IX Articles 55-61 (The Public Service).Subject to the President’s power to make certain appointments, theexercise of the power of appointment, transfer, dismissal anddisciplinary control is vested in the Cabinet of Ministers. The Cabinetis empowered to delegate some of its powers to the Public ServiceCommission, which may in turn delegate its power to a public officer.Under Article 55(4) the Cabinet of Ministers is empowered to providefor and determine all matters relating to public officers; accordingly;the Establishments Code (1985) which has been approved by theCabinet of Ministers makes detailed provision in respect of suchmatters including the transfer of public officers and the allocation ofgovernment quarters to them; and such acts constitute “executive oradministrative action” reviewable under Article 126.
At the level of a Provincial Council, Article 154C provides thatexecutive power extending to matters with respect to which aProvincial Council has the power to make statutes shall be exercisedby the Governor of the Province directly or through the Board of
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Ministers, or through officers subordinate to him, in accordance withArticle 154F. Article 154F establishes a Board of Ministers andprovides, inter alia, that the Governor shall, in the exercise of hisfunctions, act in accordance with the advice of the Board ofMinisters, except in so far as he is by or under the Constitutionrequired to exercise his functions in his discretion. Under Article154G read with List 1 of the Ninth Schedule, Health is a subject whichhas been devolved to Provincial Councils and under S.1:2 ofappendix II to List I, it would appear that a Provincial Council ispermitted to administer, control and utilise government quarterscomprised in State land within the province and which are madeavailable to such Council by the government.
Article 154Q empowers Parliament to enact further provisionrelating to Provincial Councils. Such provisions were made by theProvincial Councils Act No. 42 of 1987 as amended by Acts Nos. 27of 1990 and 28 of 1990. Under S.32 of the Act, the appointment,transfer, dismissal and disciplinary control of officers of the provincialPublic Service of each Province is vested in its Governor. TheGovernor may delegate such power to the Provincial Public ServiceCommission, which in turn may delegate its power to the ChiefSecretary or any officer of the Provincial Public Service (see S.32(2A)). Under S.32 (3), the Governor is empowered to provide for anddetermine all matters relating to officers of the Provincial PublicService: accordingly the Governor of the North-East ProvincialCouncil has made an order dated 17.12.90 setting out the guidelinesfor the Provincial Public Service Commission.
By his order dated 10.10.90, the Governor of the North-EastProvincial Council has delegated his powers of appointment etc. overofficers of the Provincial Public Service to the Provincial PublicService Commission, whilst retaining to himself such powers inrespect of certain posts; and the Commission by its order dated
has delegated its powers to the officers indicated therein.Under the said delegation, the powers of transfer and disciplinarycontrol over the petitioner are vested in the 4th respondent. The 2ndrespondent is the Regional Head in Vavuniya having administrativeauthority over the petitioner, including the power to allocategovernment quarters to her. In its determination on the Bills for the
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enactment of the 13th Amendment and the Provincial Councils Act,this Court held that such powers have been conferred by way of"devolution" or “delegation” of “Central Government powers" withinthe framework of the Unitary State postulated by Article 2 of theConstitution. Having examined Article 154C and the relevantprovisions, the majority of the Court said –
. . There can be no gainsaying the fact that the Presidentremains supreme or sovereign in the executive field and theProvincial Council is only a body subordinate to him.”
In re Thirteenth Amendment to the Constitution and the ProvincialCouncils Billw. I have, therefore, no doubt that the impugned actsconstitute “executive or administrative action" within the ambit ofArticle 17 of the Constitution, which this Court has jurisdiction toreview under Article 126.
THE POSITION, STATUS AND THE ROLE OF THE ATTORNEY-GENERAL
It follows from my above finding that the Attorney-General has theright to be heard in these proceedings in terms of Article 134 (1) ofthe Constitution and has been properly made a party under theSupreme Court Rules. It would be unnecessary, for the purposes ofthis application, to decide the other issues involved in the secondquestion set out above.
LIABILITY OF THE STATE
In respect of infringements of fundamental rights arising out of theacts of public officers or public corporations, it has been held (in thelight of Articles 4(d) and 126(4) of the Constitution) that in addition tothe State (which is primarily liable) the offending officer is also liable;and accordingly, in appropriate cases both the State and such officermay be ordered to pay compensation. Karunaratne v. Rupasinghe(supra) and Sirisena v. Perera (supra). In an appropriate case, theliability of the State would remain purely conceptual, and relief maybe granted against the offender alone. Ratnasara Thero v.
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Udugampolal5i; Perera v. The University Grants Commission^. In theinstant case the relief, if any, need not go beyond the 2nd and the 4threspondents; hence the liability of the State, if any, remains purelyconceptual. The third question before us impliedly raises anotherissue namely, whether a Provincial Council itself may incur a liabilityanalogous to that of the State on account of an infringement offundamental rights. That issue also does not arise for decision in thiscase. I would, however, conclude my opinion on this question withthe observation that under the 13th Amendment, the Republic of SriLanka alone is sovereign and Provincial Councils have beenestablished for the purpose of devolving some of the powersexercised by the Centre and they are no more than components ofthe Republic, created for that purpose. The status of a ProvincialCouncil is, therefore, not analogous to that of the State in fundamentalrights cases. However, the question whether relief may be grantedagainst the Provincial Council alone on account of an infringement offundamental rights by “executive or administrative action" within itsarea can arise for decision in an appropriate case in which event, thisCourt will express its opinion thereon.
ENFORCEMENT OF THE ORDERS OF THE SUPREME COURTUNDER ARTICLE 126 (4)
In the determination of this Court on the 13th Amendment and theProvincial Councils Bill this Court said –
“The Bills do not effect any change in the structure of theCourts of judicial power of the People. The Supreme Court andthe Court of Appeal continue to exercise unimpaired theseveral jurisdictions vested in them by the Constitution. There isone Supreme Court and one Court of Appeal for the wholeIsland …" (P.323)
I myself subscribe to the view that the 13th Amendment has noteroded the judicial power of the People and hold that the writ of thisCourt still runs through the length and breadth of Sri Lanka and thatthis Court has the full power to enforce its orders, including thosemade under Article 126(4).
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CONSIDERATION OF THE DISPUTE ON THE MERITSOccupation of Medical Quarters by the petitioner
The petitioner is one of the six pharmacists attached to the BaseHospital, Vavuniya. Unlike in the case of medical officers,pharmacists are not entitled to scheduled quarters (i.e. thoseassigned to a particular post or grade within a Department; see S.1of Chapter XIX of the Establishments Code). The petitioner states thatin Vavuniya there are six such quarters assigned for the use ofmedical officers (“medical quarters") but the respondents state thatthere are only five such quarters, a discrepancy which is notimportant because the petitioner is, in any event, not entitled to suchquarters. However, the medical administration in Vavuniya hadhelped the petitioner when she was in difficulty due to the civildisturbances there and permitted her to occupy such quarters, whichfact ultimately led to the present dispute. No other pharmacist hasbeen permitted to occupy scheduled or other government quarters.
In 1989 the petitioner had rented out a private house in Vavuniyaand was living there, when the I.P.K.F. acquired it; whereupon shewas permitted to occupy the old D.M.O.’s quarters which wasvacated by a Medical Officer. The inventory P14 shows that it is aspacious house (with fans) consisting of 4 rooms (with attached bath-rooms), a hall, verandahs, kitchen, dining room and a garage. By aletter dated 06.10.89 (2R1), she informed the R.D.H.S. that since the
P.K.F. had acquired her house without notice and as she was withchildren, she was in temporary occupation of the old D.M.O.’squarters for want of alternative accommodation. On 07.10.89, theD.M.O. Vavuniya reported to the R.D.H.S. that as the office of theRegional Medical Officer (Anti-Malaria Campaign) was being shiftedto the P.H.I.’s quarters, the petitioner may be allowed to occupy thebuilding which was being vacated by the R.M.O., on condition thatshe should vacate it on 31.12.89 (2R2). On 20.10.89 the R.D.H.S.approved it and instructed that the petitioner be requested to shift tothe said building and to immediately hand over the old D.M.O'squarters to the D.M.O. (p. 15). This was done.
Although the petitioner was expected to vacate the R.M.O’squarters by 31.12.89 she appears to have been allowed to live there
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until June 1990 when due to the occurrence of violence, she had toleave the area. She resumed work in September 1990 when on
the R.D.H.S. instructed her to hand over the R.M.O.'squarters to the D.M.O. and to shift to the old D.M.O.'s quarters (P2).She complied with these instructions and shifted to the old D.M.O.’squarters on 27.09.90 (P3, P16).
DECISION THAT THE PETITIONER SHOULD VACATE MEDICALQUARTERS
The 2nd respondent assumed duties as R.D.H.S. Vavuniya inNovember 1990. On 21.11.90 the 2nd respondent held a conferencefor the allocation of quarters to medical officers, which the petitionerattended. At the said conference the R.M.O. Dr. Thiyagarajah wishedto occupy the R.M.O.’s quarters then occupied by the D.M.O. Thiswas allowed. The D.M.O. did not wish to shift to the old D.M.O.’squarters; instead he wished to occupy a quarters being vacated byan outgoing doctor. The 2nd respondent wished to occupy the oldD.M.O.'s quarters then being occupied by the petitioner; and it wasagreed that he would immediately occupy a part of the said quartersuntil the end of December 1990 when the petitioner was due to go ontransfer to Negombo. On 23.11.90 the 2nd respondent made aminute of the said conference and endorsed it to the petitioner withinstructions that she will be released to assume duties in Negomboon 31.12.90. She was also requested to hand over duties, with aninventory of articles (P4). Consequently, on 29.12.90 the D.M.O.appears to have called upon her to relinquish duties to which sheprotested by a writing dated 30.12.90 (P5). She took up the positionthat her transfer to Negombo had been ordered 3 years ago but wasnot implemented and that as she was now an employee of the North-East Provincial Council she could not be transferred except with theconcurrence of the North-West Provincial Council. She indicated thatpending clarification of this issue she was not prepared to proceed toNegombo.
REFUSAL OF THE PETITIONER TO VACATE MEDICALQUARTERS
On 25.01.91 the 2nd respondent reminded the petitioner that interms of the decision made on 21.11.90, she should have vacated
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the quarters occupied by her by the end of December 1990 andrequested her to do so before the end of January 1991 (P6). On
the 2nd respondent received a letter from the Attorney-General (2R4) calling for observations on a notice of action given bythe petitioner. In the said letter the Attorney-General also advised the2nd respondent to refrain from taking steps to dispossess thepetitioner (from the quarters occupied by her) pending a finaldecision on the notice of action.
On 08.02.91 the petitioner replied P6, the 2nd respondent's letter.In her reply (P7), she said that as her transfer to Negombo was noteffective she proposed to remain in the quarters allotted to her. Therefollowed two reminders dated 27.02.91 and 23.04.91 from theAttorney-General addressed to the 2nd respondent calling forobservations on the petitioner's notice of action (2R5 and 2R6). Ineach of these letters the Attorney-General strongly advised the 2ndrespondent to refrain from taking steps to dispossess the petitionerfrom the quarters occupied by her or to transfer her from Vavuniyawithout reference to him. However, after further consideration, theAttorney-General, by his letter dated 12.09.91 addressed to thepetitioner (with copy to the 2nd respondent) declined to intervene inthe matter in view of the fact that she was an employee of theProvincial Council and that the premises in question was under thecontrol of the Council (2R7).
ACTION BY THE AUTHORmES TO RECOVER MEDICAL QUARTERSOCCUPIED BY THE PETITIONER: HER TRANSFER TO BATTICALOA
Following the Attorney-General’s ruling, the 2nd respondentreported the matter to the 4th respondent who by his letter dated
(P8) directed the petitioner to vacate the quarters forthwithon pain of disciplinary action. The correspondence that followedconsists of 3 letters addressed to the 4th respondent by thepetitioner, on 18.01.91 (P9), 15.11.91 (P10(a)) and 10.12.91 (P12),and 2 letters addressed to the petitioner by the 4th respondent, on
(P10) and 30.11.91 (P11), the second of which was an ordertransferring the petitioner to the General Hospital, Batticaloa witheffect from 01.01.92, for "administrative reasons". The petitioner
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claimed that she was entitled to occupy the old D.M.O.’s quarters;that she resumed work after the cessation of violence as she hadbeen assured quarters for her residence; that two clerks had alsobeen permitted to occupy medical quarters (this is denied by the 2ndrespondent who states that the houses given to the clerks arequarters meant for clerks), and that her transfer and dispossessionfrom quarters were both discriminatory.
The 4th respondent transferred the petitioner when it was clearthat she would not surrender the D.M.O'.s quarters even on the threatof disciplinary action. On the other hand, she requested the 4threspondent to direct the 2nd respondent to vacate the portion of thesaid quarters which the 2nd respondent was in occupation as it wasinconvenient for her to share the quarters with him. Finally, on
the petitioner appealed to the North-East Provincial PublicService Commission against her transfer alleging that it wasmotivated solely by the desire to deprive her of the quartersoccupied by her and that in any event, there were two otherpharmacists who were more eligible for transfer than her. They are
Mrs. Paramakulasingham who had served in Vavuniya for 7 yearsas against the petitioner who has served there only for 5 years
Mr. Selvaratnam a retired pharmacist who had been re-employedon a contract basis.
SUBMISSIONS OF COUNSEL
The learned Counsel for the petitioner did not press the allegationof discrimination based on the orders given to the petitioner to vacatethe quarters occupied by her. She had been allowed to occupymedical quarters on sympathetic grounds. She has no right to suchquarters. No other pharmacist had been allowed to occupy suchquarters. She alone enjoyed the favour of occupying medicalquarters. The 2nd repondent is a medical officer besides being theRegional Head in Vavuniya under the Ministry of Health and Women’sAffairs of the North-East Provincial Council. He is entitled to medicalquarters. As such the order to the petitioner to vacate the oldD.M.O.'s quarters to enable the 2nd respondent (or any other medicalofficer) to occupy the same cannot constitute discrimination. Theallegation that two clerks are in occupation of medical quarters has
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been denied. Assuming that a clerk has also been permitted such afacility, it is not alleged that it has been done as a special favour withthe intention of placing him in a more advantageous position over thepetitioner; and hence such clerk too will be under the sameobligation as the petitioner to vacate such quarters upon beingdirected to do so. So that, even if a clerk is in occupation of medicalquarters (on account of the exigencies of the service) it cannotconstitute discrimination violative of Article 12(1) of the Constitution.
Learned Counsel for the petitioner said that the petitioner’s realgrievance is her transfer to Batticaloa which he submitted was donenot for administrative reasons but maliciously, on account of thedispute regarding government quarters, which dispute ought to havebeen resolved by recourse to the remedy of ejectment by legalaction. Counsel pointed out to the fact that the petitioner wastransferred without a replacement for her in Vavuniya. He submittedthat this supported the allegation of mala tides. The 2nd respondentstates that Mrs. Paramakulasingham whom the petitioner says couldhave been transferred was not in the same position as the petitionerbecause her husband was employed in Vavuniya Kachcheri and assuch it was not proper to transfer her out of Vavuniya; and that in anyevent, the petitioner had served in the Vavuniya Division for 12 yearswhich was the longest period among the pharmacists attached to theBase Hospital, Vavuniya.
Learned Counsel for the petitioner also contends that it is clearfrom all the facts that the impugned transfer was not effected upon aconsideration of the relevant facts; that it constitutes "hostilediscrimination" in that the transfer was a hostile act intentionallydirected against the petitioner due to illwill created by her refusal tovacate government quarters; and that as such it is violative of theright to equal protection of the law (see Elmore Perera v.Jayawickrama{7) per Wimalaratne, J.). Learned Counsel for therespondents submitted that the impugned acts cannot be attributedto illwill or malice and that the petitioner's transfer was justified in that –
she had created a serious problem by refusing to surrender
medical quarters which are specially meant for medical officers;
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she abused the facility given to her to occupy such quartersin times of difficulty;
she challenged the authority of her superiors;
no other pharmacist created such a situation at the VavuniyaHospital;
that in these circumstances the transfer was necessary toensure the smooth functioning of the hospital services atVavuniya even without a replacement; and that the BatticaloaHospital could be better served by the petitioner.
I am in agreement with the submissions of the learned Counsel forthe respondents. In answer to Court, the learned Counsel for thepetitioner said that assuming that this Court sets aside the transfer,the petitioner will continue to occupy the old D.M.O.’s quarters andshe cannot even indicate when she may vacate the same. Thisclearly shows that the real object of these proceedings has been tosecure her occupation of medical quarters. If so, her real grievance isnot the transfer. Her conduct is tainted by the desire to enjoy a facilityto which she is not entitled; and that in the circumstances she hasfailed to establish the charge of “hostile discrimination".
For the foregoing reasons, I hold that the alleged infringement ofthe petitioner's fundamental rights under Article 12(1) has not beenestablished and dismiss her application, but without costs.
RAMANATHAN, J. -1 agree.
P. R. P. PERERA, J. -1 agree.
WIJETUNGA, J. -1 agree.
FERNANDO, J.
I have had the advantage of reading, in draft, the judgment of mybrother Kulatunga, and I agree with his conclusion that the petitionerhas failed to establish any violation of her fundamental rights.
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However, I wish to state my views in regard to what constitutes"executive or administrative action", and the liability of the State forviolations of fundamental rights by executive or administrative action.
“Executive or Administrative Action”
Learned Counsel for the petitioner commenced his arguments byreiterating the opening paragraphs of his written submissions:
"(a) Although the Constitution does not define ‘executive oradministrative action', the Supreme Court has held that the‘Constitutional guarantees of fundamental rights are directedagainst the State and its organs … In the context offundamental rights, the 'State' includes every repository of Statepower. The expression ‘executive or administrative action’embraces executive action of the State or the agencies orinstrumentalities exercising governmental functions. It refers toexertion of State power in all its forms' (Perera v. The UniversityGrants Commission)iB)- ‘the Courts have been progressivelyextending the concept of State and today it has come to includealmost any institution performing public functions' (Gunaratne v.People's Bank)®.
In order to ascertain whether a particular institution is an organor instrumentality or agency of the State, the 'functional' and‘governmental control' tests have been customarily applied.Does the institution exercise and perform governmentalfunctions? Is it charged with or entrusted with functions whichotherwise the Central Government would have performed?Does the State exercise control over that institution? (Roberts v.Ratnayake®. It was also said in this case that ‘where a PublicAuthority is charged or entrusted with Governmental functions,the 'Governmental Control test’ is inappropriate andinapplicable' (p.69). However that may be, it is my respectfulsubmission that a Provincial Council satisfies the two testsreferred to above and constitutes an organ or agency of theState.”
Articles 3 and 4 of the Constitution refer to the three powers ofgovernment; governmental power therefore includes the legislative
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and the judicial power of the people. It is clear that in Articles 17 and126 (and probably also in Article 157) “executive" action refers to theresult of the exercise of the executive (but not the legislative or thejudicial) power of the people. With much respect, therefore, I find itdifficult to agree that this phrase "refers to exertion of State power inall its forms”. The word "administrative" is significant, and cannot betreated as a mere superfluity. The classification of governmentalpowers is not always easy; there are grey areas of uncertainty, as wellas residual and ancillary powers which, analytically or historically, donot fit neatly into one of the traditional categories (see, for instance.AG v. Liyanage m, where an essentially administrative power washeld to be ancillary to the judicial power). Accordingly these powerswhich cannot appropriately be classified as legislative, judicial, orexecutive, but are nevertheless “administrative" in a public lawsense, are also included in the phrase “executive andadministrative". Thus the question whether an act falls within theambit of this expression cannot be determined on the assumptionthat it includes all exertions of State power, or the performance of agovernmental power of function; nor on the basis that if particularinstitutions, functionaries or officials are “legislative" or “judicial”, theiracts are necessarily excluded. In the scheme of the Constitution, aslaid out in Articles 3 and 4, one of the powers of government is thejudicial power of the people; the judiciary thus exercises agovernmental power of function. The acts of a judicial officer, in theexercise of judicial power, are not within the ambit of Article 126;however, it may not follow that every act of a judicial officer isexcluded, for it is not inconceivable that some acts may be“administrative” in character and thus not in the exercise of thejudicial power of the people. In my view, therefore, the test mustalways be whether the impugned act was "executive oradministrative”, not whether the institution or the person concernedcan be characterised as “executive" (or “governmental", which isoften used as if it were equivalent). Of course, reference to the"executive" character of such institution or person, and the degree of“executive" control, may be justifiable, and necessary, in borderlinecases, but ultimately the decision must depend on whether the act is“executive or administrative” in character, and not upon the status ofthe institution or the official.
In the case before us, Article 154C provides for the exercise of theexecutive power, and there is no dispute that the impugned acts weredone in pursuance thereof. Those acts were therefore “executive oradministrative action", regardless of the character or status of theinstitutions and the officials involved.
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[1992] 2 Sri LR.
Liability of the State
Since the Petitioner has failed to establish her allegations, it isstrictly unnecessary to deal with this question. However, it was one ofthe matters referred to this Bench. Chapter III of the Constitutionenumerates fundarental rights, and while Articles 17 and 126 conferjurisdiction on this Court in respect of infringements by “executive oradministrative action", there is no provision as to who is liabletherefor. While I agree with my brother Kulatunga that in appropriatecases relief may be granted both against the offender and the State,it is nevertheless unnecessary to decide whether the State is“primarily" liable. It is sufficient to state that this Court has the powerand the discretion under Article 126(4) to make appropriate ordersfor relief, taking into consideration the degree of culpability orresponsibility of the several respondents.
Application dismissed.