Prematilake v. Withanachchi, Secretary,
Judicial Service Commission and Others
JUDICIAL SERVICE COMMISSION AND OTHERS
SUPREME COURTWADUGODAPITIYA, J.fGUNAWARDANA, J. ANDGUNASEKERA, J.
S.C. (FR) APPLICATION NO. 515/97OCTOBER 16, 1998
Fundamental Rights – Minutes on Pensions – Date of retirement – Last workingday for computing the pension – Error in determining the relevant date ~ Article12 (1) of the Constitution.
The petitioner who was a District Judge 'Super Grade' attained the compulsoryage of retirement, viz, 60 years on 01.01.1997. The Director of Pensions relyingon a practice whereby an officer is exempted from reporting for work on his lastday, decided to pay the petitioner's pension calculated on the basis of the salaryscale which was applicable on 31.12.1996.
The petitioner completed the age of 60 years on 01.01.1997, at the end of thatday; and her pension should be computed on the salary drawn by her as at thedate of her retirement, viz, 01.01.1997 according to section 17 of the Minuteson Pensions.
APPLICATION for relief for infringement of fundamental rights.
T.Marapana P.C. with Nalin Laduwahetty and Jayanatha Fernando for thepetitioner.
K. Sripavan D.S.G. for 1st to 5th respondents.
Cur. adv. vult.
Sri Lanka Law Reports
 3 Sri LR.
October 16, 1998WADUGODAPITIYA, J.
The petitioner states in her petition that she was born on 1.1.1937and that, having joined the Judicial Service as a Magistrate in 1979,upon promotion, she functioned as District Judge, Super Grade, uptoand including 1.1.97. She specifically states that she completed her60th year on 1.1.97, and that her last working day was the self-same
since she, in fact, worked on that day.
She complains that the Director-General of Establishments (2ndrespondent) in respect of her pension has maintained that her dateof retirement is 31.12.96 and not 1.1.97, and that, by letter P2A, the2nd respondent has informed the 1st respondent, the Secretary tothe Judicial Service Commission, that since the last day on whichthe petitioner should have worked was 31.12.96, she is not entitledto any payments in respect of her services on 1.1.97. The 1strespondent has thereupon directed the 4th respondent, the Directorof Pensions to pay the petitioner's pension on the basis that her lastworking day was 31.12.96, thus depriving her of the benefits of thenew increased salary scales which came into force on 1.1.97 by PublicAdministration Circular No. 2/97 dated 15.1.97 (P4). Her complaintis that her pension, as calculated on the old salary scales under theold Public Administration Circular No. 16/95, reduced her commutedpension by Rs. 166,800/- and reduced her pension by Rs. 6,255/-every month.
Thus, in computing her pension, the question that arises for decisionis, whether the effective date of retirement, was 1.1.97 as the petitioneravers, or whether it was 31.12.96 as maintained by the Director-General of Establishments, (2nd respondent). Mr. Marapana for thepetitioner submits that the correct date for the purpose of computationof the petitioner's pension would be 1.1.97. He submits (and this isconceded by Mr. Sripavan for the respondents) that there is a practicewhereby an officer is exempted from reporting for work on his/herlast day, which in this case was 1.1.97. He submits however that thismust not be held to interfere with the computation of the pension,on the question as to what should be the actual date of retirement.The Director-General of Establishments has stated that the date ofthe petitioner's retirement is 31.12.96, and not 1.1.97. This, he says
SCPrematilake v. Withanachchi, Secretary,
Judicial Service Commission and Others (Wadugodapitiya, J.)223
is on the basis that 31.12.96 was the last day on which the petitionerwas required to report for work (vide P2A). This is clearly in erroras, what is required is not the last working day, but the day on which,(according to section 17 of the Minutes on Pensions), the petitionerattained the compulsory age of retirement, viz 60 years, which in thiscase 1.1.97.
It is also clear that the petitioner's time of birth is totally irrelevantto the issue, inasmuch as, the time of birth is nowhere mentionedin the rules relating to retirement or the grant of pension. It appearsfrom the submissions of Mr. Sripavan that the 2nd respondent haserroneously calculated the petitioner's date of retirement basing himselfon the additional factor of the time of her birth. It seems to us thatthe rules, pertaining to this matter deliberately avoid mentioning thetime of birth for the obvious reason that this could lead to confusionand would end in untenable conclusions.
Mr. Marapana refers us to the document marked P1 whereby theAttorney-General has given his advice on this matter, and stated quiteclearly, that the petitioner completed the age of 60 years on 1.1.97,at the end of that day. The Attorney-General further states that forthe purpose of computing the petitioner's pension, the relevant dateshould be 1.1.97.
Mr. Sripavan agrees with, and supports the opinion given by theAttorney-General in P1. He however states that there is an explanationrelating to the practice hitherto followed^which in fact moved theDirector-General of Establishments to disagree with the Attorney-Generaland maintain that the relevant date ought to be 31.12.96 and not 1.1.97.The practice appears to be, to consider the last day on which theofficer should have worked as the date of retirement; the unwrittenconcession being that an officer is exempted from working on whatin fact is, his/her last day. Accordingly the 2nd respondent says (para7 of his affidavit), that"… in accordance with the consistent practiceadopted right throughout, I decided that the petitioner's last workingday should be 31st December, 1996". The 2nd respondent's argumenttherefore is that 31.12.96 was the last day on which the petitionershould have worked (vide P2A). Continuing this line of argument, the2nd respondent concludes that therefore, 31.12.96 was in fact thepetitioner's last working day. He confirms this by stating, at paragraph6 of his affidavit: "I state that the petitioner's last working day was
Sri Lanka Law Reports
 3 Sri LR.
the 31st day of December, 1996, and she is not entitled to anyallowance given to persons in service on 1st January, 1997“ (theemphasis is mine). This to us, is not acceptable. No such practicecan override the Provisions of the Minutes on Pensions which governthe question in issue, and which indeed must prevail.
For the reasons set out above, it seems clear that the Attorney-General's advice is correct in law, and that, the view taken by theDirector-General of Establishments (2nd respondent) is untenable andmust therefore be rejected.
We therefore declare:
that the petitioner's fundamental right guaranteed by Article 12
of the Constitution has been violated;
that the petitioner's pension should be computed on the salarydrawn by her as at the date of her retirement, viz. 1.1.97; and
that the petitioner is therefore entitled to have her pensioncomputed according to the revised salary scale which came intoeffect on 1.1.97.
We therefore direct the 4th respondent who is the Director ofPensions to pay the petitioner's pension and commuted pensionaccording to the revised salary scale which came into effect on 1.1.97in terms of Public Admirl&tration Circular 2/97 dated 15.1.97 (P4).
The application is allowed but without costs.
GUNAWARDANA, J. – I agree.
GUNASEKERA, J. – I agree.
PREMATILAKE V WITHANACHCHI, SECRETARY, JUDICIAL SERVICE COMMISSION AND OT