PODINILAME (CHIEF MINISTER SABARAGAMUWAPROVINCIAL COUNCIL)
MATHEW (GOVERNOR SABARAGAMUWA PROVINCE)
COURT OF APPEALDR.R.B. RANARAJA, J.
JULY 02, 1996.
Provincial Councils Act No. 42 of 1987 – S.32(1) (8), S. 33 (3) 33(1) 34-Constitution – Article 154 (B), 154 C, 154 (F) – Provincial Public ServiceCommission – Removal of Members by Governor – Validity – Writ of QuoWarranto-Certiorari
By four letters dated 1.6.95 the 1st Respondent – Governor – Purported toremove the 5th – 8th Respondents from office as members of the Provin-cial Public Service Commission – (PPSC). Thereafter the 1st Respondent- appointed 2nd to the 4th Respondents as members of the reconstitutedPPSC. The 1st Petitioner – Chief Minister 2nd -5th Petitioners the Ministersconstituting the Board of Ministers of the Sabaragamuwa Province soughtWrits of Quo Warranto and Certiorari alleging that the purported removaland appointment of the members of the P-PSC were done in contraventionof Art 154 F (1) and S 33 (1) 33 (3) of the Provincial Councils Act andtherefore ultra vires, mala fide, arbitrary and unreasonable.
The 1st Respondent had not assigned any reason other than request-ing the 5th -8th Respondents to resign from office to enable him to recon-stitute the Commission. There are no absolute or unfettered discretions inPublic Law; discretions are conferred on public functionaries in trust forthe public to be used for the public good, and the propriety of the exerciseof such discretion is to be judged by reference to the purpose for whichthey were entrusted.
The reasons for removal of 5th – 8th Respondents from office must beof so serious a nature which prevents them from performing their duties inthe manner as the public expect them to. The members of the P-PSCcannot be removed by the Governor merely because he is so minded butbecause reason dictates him to do so.
The cause given in the letters is no cause at all, unless he specified thereasons why he wanted to reconstitute the membership of the P-PSC.
The first time any reasons of sorts he has designed to give, was in hisaffidavit. He stated that to his knowledge the 5th to 8th Respondents hadstrong political affiliations and participated in active politics which wasdetrimental to the proper functioning of a Commission, but he has failed toproduce a single complaint against the 5th – 8th Respondents from anymember of the Public Service or the province or a member of the Publicthat they were unfairly treated or victimised due to their political affilia-tions. This explanation too does not bear scrutiny.
The 1st Respondent has acted ultra vires the provisions of S.33(3) inremoving the 5th – 8th Respondents. It follows that the appointments of the2nd -4th Respondents were made consequential upon an illegal removalof the former members of the Commission.
Per Ranaraja, J.
"The power vested in the Governor under S.32 is a specific powerand not merely an executive function extending to matters regardingwhich a Provincial Council has the power to make statutes etc; un-der Art 154 C or other functions to be performed by the Governorunder Art 154 B. The question of referring this matter to the SupremeCourt therefore does not arise."
APPLICATION for Writs in the nature of Quo Warranto/Certiorari andMandamus.
Cases referred to:
Premachandra v. Major Montague Jayawickrema and another(1994)2 SLR 90.
Associated Provincial Picture Houses Ltd., v. WednesburyCorporation – 1948 1 KB 223 (CA).
R.K.W. Goonasekera for Petitioner.
P. G. Dep for 1st Respondent.
D. W. Abeykoon, PC with Priyadarshani Premaratne for 2 – 4th Respond-ents.
L.C. Seneviratne, PC. with N.D.S. Jayasinghe for 6th Respondent.
Cur. adv. vult.
July 02, 1996.
DR. RANARAJAH, J.
The 1 st Petitioner is the Chief Minister and 2nd to 5th Petitionersare the Ministers constituting the Board of Ministers of theSabaragamuwa Province. The 5th to 8th Respondents were serving asmembers of the Provincial Public Service Commission for a period of 5years from 01.02.94.
By letters P2 to P5 dated 01.06.95, the 1st Respondent purportedto remove the 5th to 8th Respondents from office as members of theProvincial Public Service Commission with immediate effect. The let-ters P2 to P5 which are similar read;
"By virtue of the powers vested in me under section 33 (3) of theProvincial Councils Act No. 42 of 1987,1 do hereby remove you fromoffice as member of the Sabaragamuwa Provincial Public Service Com-mission with effect from 1st June, 1995, in order to enable me toreconstitute the Provincial Public Service Commission of theSabaragamuwa Province".
Thereafter the 1 st Respondent purportedly appointed the 2nd to4th Respondents as the members of the reconstituted Provincial Pub-lic Service Commission, by letters marked P7 (a) to P7 (c) which read;
"By virtue of the powers vested in me under section 33 (1) of theProvincial Councils Act No. 42 of 1987,1 have pleasure in appointingyou as a member of the Provincial Public Service Commission of theSabaragamuwa Province with effect from 2nd June 1995. Your appoint-ment shall be for a period of five years unless revoked earlier in termsof section 33 (3) of the Act".
The 1 st Respondent also purported to remove the 5th Respondentfrom the Chairmanship of the said Public Service Commission by letterP2 and replace him with the 2nd respondent by letter P7 (a).
It is the contention of the Petitioners that the purported removaland appointment of the members of the said Public Service Commis-sion were done in contravention of Article 154 F (1) of the Constitutionand sections 33 (1), 33 (3) of the Provincial Councils Act, No. 42 of1987, and therefore ultra vires, mala fide, arbitrary and unreasonable.They submit the action of the 1 st Respondent is void and of no effect inLaw, in as much as;
The 1st Respondent is mandated to act on the advice of theBoard of Ministers in terms of Article 154 F (1) of the Constitution.
The 1st Respondent by removing the 5th to 8th Respondentsfrom membership of the Provincial Public Service Commission withoutcause assigned, contravened section 33 (3) of the said Act.
The 5th to 8th Respondents were not afforded a hearing prior totheir purported removal, as such there was a violation of the principlesof natural justice.
The 5th to 8th Respondents having been appointed for terms offive years, had a legitimate expectation of continuing till the expiry ofthat period.
The Petitioners allege that the 2nd to 4th Respondents have notbeen validly appointed as Chairman/Members of the Provincial PublicService Commission.
They pray inter alia, that this Court,
Issue a mandate in the nature of a writ of quo warranto directingthe 2nd and 3rd to 4th Respondents to show cause by what legal rightsthey claim to hold office as Chairman and members respectively of thesaid Provincial Public Service Commission and perform any of the pow-ers, functions, duties and responsibilities as such. A declaration thatthey are not entitled to be appointed to the said offices.
Quash the orders removing the 5th to 8th Respondents fromthe respective offices in the Provincial Public Service Commission.
Quash the appointments of the 2nd to 4th Respondents to thesaid offices in the Provincial Public Service Commission.
The 1st Respondent has filed affidavit admitting the purported re-movals of the 5th to 8th Respondents from the said office and thepurported appointments of the 2nd to 4th Respondents to the said of-fice. He denied any substantial constitutional question requiring in-
terpretation of articles 154 C or 154 F of the Constitution has arisen.The 2nd to 4th Respondents filed affidavits on the lines of that filed bythe 1st Respondent. The 5th to 8th Respondents filed no objections.
Section 33 (1) of Act No. 42 of 1987 provides;
"There shall be a Provincial Public Service Commission for eachProvince which shall consist of not less than three persons appointedby the Governor of that Province. The Governor shall nominate one ofthe members of the Commission to be the Chairman".
Section 33 (3) reads;
"Every member of a Provincial Pubiic Service Commission shallhold office for a period of five years from the date of his appoint-ment, unless he earlier resigns his office by a writing under his handaddressed to the Governor of the province or is removed from officeby such Governor for cause assigned, but shall be eligible for re-appointment".
It is not disputed that the original appointments of the 5th to 8thRespondents were made in terms of section 33 (1). In the circum-stances, they had the right under section 33 (3) to hold office for aperiod of five years, unless they chose to resign from office by writingaddressed to the Governor. It is not the position of the 1 st Respondentthat the 5th to 8th Respondents so resigned. The only other way, theycould have been deprived of the right given by law to hold office for fiveyears, was by removal for cause assigned by the Governor. That is, theserving members must be informed they are being removed for specificreasons, in order that they may make representations to the Governor,or any other relevant authority, of the cause given by the Governor isfor instance, frivolous, unfounded, arbitrary or unreasonable.
The 1 st Petitioner has alleged that on or about 2.5.95, the 5thRespondent had informed him that, at a meeting with the 1 st Respond-ent, the latter had indicated to the 5th Respondent that he and the 6thRespondent, should resign or run the risk of removal. The 1 st Respond-ent admitting that allegation states, he requested the 5th to 8th Re-spondents to resign from office to enable him to reconstitute theCommission. This is also the only reason given in letters P2 to P5.
The 1 st Respondent has not assigned any other cause for the removal.The questions that arise are, why was it necessary to reconstitute theCommission? Were the members of the Commission incapable of dis-charging their functions properly or guilty of any offences? It is a funda-mental principle of Public Law that there is nothing called absolute orunfettered discretion.
"There are no absolute or unfettered discretions in Public Law;discretions are conferred on public functionaries in trust for the public,to be used for the public good, and the propriety of the exercise ofsuch discretion is to be judged by reference to the purposes for whichthey were entrustedIn applications for quo warranto, certio-
rari and mandamus, the Court of Appeal has power to review the ap-pointment, inter alia, for unreasonableness or if made in bad faith, or indisregard of the relevant evidence or on irrelevant considerations orwithout evidence" (See Premachandra v Montague Jaywickrema andanother1''.)
As seen, letters P2 to P5 give no valid cause for the removal of the5th to 8th Respondents. In this context, it is relevant to note that eventhe President of the country cannot be removed from office under Arti-cle 38 (2) (a) of the Constitution, except where he is permanently inca-pable of discharging the functions of his office by reason of mental orphysical infirmity or that he has been guilty of intentional violation ofthe Constitution, treason, bribery, misconduct or corruption involvingthe abuse of the powers of office or any offences under any law involv-ing moral turpitude.
In other words, the reasons for removal of the 5th to 8th Respond-ents from office must be of so serious a nature which prevents themfrom performing their duties in the manner as the public expect themto. The members of the Public Service Commission cannot be removedby the Governor merely because he is so minded, but because reasondictates him to do so.
"It is true the discretion must be exercised reasonably. Now whatdoes that mean? Lawyers familiar with the phraseology commonly usedin relation to exercise of statutory discretions often use the word "Un-reasonable" in a rather comprehensive sense, It has frequently been
used as a general description of the things that must be done. Forinstance, a person entrusted with a discretion must so to speak, di-rect himself properly in Law. He must call his own attention to thematters which he is bound to consider. He must exclude from his con-sideration matters which are irrelevant to what he has to consider. If hedoes not obey those rules, he may truly be said, and is often said, tobe acting "unreasonably". Similarly, there may be something so ab-surd that no sensible person could ever dream that it lay within hispowers or the authority" -per Lord Greene M.R. – in Associated Provin-cial Picture Houses Ltd., v Wednesbury Corporation(2).
The cause given in P2 to P5 is no cause at all unless he specifiedthe reason why he wanted to reconstitute the membership of the Pro-vincial Public Service Commission. The 1st Respondent has failed toelaborate the reasons in the said letters. He has not said there werecomplaints of any sort against the 5th to 8th Respondents from thepublic or from that matter from any one that the 5th to 8th Respond-ents were incapable of performing their functions effectively before hechose to remove them from office.
The first time any reason of sorts he has deigned to give, was inhis affidavit. He states that to his knowledge the 5th to 8th Respond-ents had strong political affiliations and participated in active politicswhich was detrimental to the proper functioning of a body which wasincharge of the public service of the province and which would affectthe independence expected of it. Strong words coming from a nomineeof Her Excellency the President herself. But he has failed to produce asingle complaint against the 5th to 8th Respondents from any memberof the public service of the province or a member of the public that theywere unfairly treated or victimised due to the political affiliations of the5th to 8th respondents. The Governor is obviously unaware of the pow-ers that have been vested in him by section 32 (8) of the Act, to alter,vary, or rescind any appointment, order of transfer or dismissal or anyorder relating to a disciplinary matter made by the Provincial PublicService Commission of that Province. Thus the explanation given inthe affidavit for removing the 5th to 8th Respondents too does not bearscrutiny.
The 1 st Respondent has acted ultra vires the provisions of section33 (3) in removing the 5th to 8th Respondents from office as Chairman
and members of the Provincial Public Service Commission. It followsthat the appointments of the 2nd to 4th Respondents were made con-sequential upon an illegal removal of the former members of the Com-mission. Those appointments have to be quashed as the 2nd to 4thRespondents have no legal authority to hold the posts of Chairman andmembers respectively of the Provincial Public Service Commission.
Ex facie the 1st Respondent has the power to appoint and removemembers of the Provincial Public Service Commission solely underthe Provisions of Act No. 42, of 1987. Under section 32 (1) it is theGovernor who is vested with the power to appoint etc; of public offic-ers of the province. He can at his discretion delegate those powers tothe Public Service Commission. The Board of Ministers in such cir-cumstances has no power vested in it to advise the Governor or thePublic Service Commission on the appointments of officers to the Pro-vincial Public Service. In fact, section 34 of the Act precludes interfer-ence, in such appointments by the Public Service Commission, byany outsider, including a Minister of the Provincial Council. Thus, nei-ther Article 154C nor 154F is applicable to the functioning of the Pro-vincial Public Service. The power vested in the Governor under sec-tion 32 of the Act is a specific power and not merely an executivefunction extending to matters regarding which a Provincial Councilhas the power to make statutes etc; under Article 154C or other func-tions to be. performed by the Governor under Article 154 B. The ques-tion of referring this matter to the Supreme Court therefore does notarise.
The application is allowed in terms of prayers (c) and (d) to thepetition only with costs fixed at Rs. 5000/- payable by the 1st respond-ent to the 1st to 5th Petitioners.
Appointment of the 2nd – 4th Respondents quashed.