RATNASIRI AND OTHERS v. ELLAWALA AND OTHERS

028-SLLR-SLLR-2004-V-2-RATNASIRI-AND-OTHERS-v.-ELLAWALA-AND-OTHERS.pdf


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RATNASIRI AND OTHERSvELLAWALA AND OTHERSCOURT OF APPEALMARSOOF, P.C. PCA ANDSRIPAVAN, J.
CA 16, 2004
MAY 12, AND 25 2004
Writ of certiorari / mandamus – Quash decision to – transfer – Appeal Boardconstituted by the Public Service Commission – Board not properly constitut-ed? – Applicability of the Establishment Code – Constitution, 1972, sections106 and (10) – Constitution, 1978, Articles 55, 56, 106 (s), 107 (1), 126, 140,61A and 61B- 17th Amendment – Cluster of jurisdiction – Judicial review of adecision of Public Service Commission Barred? – Ratification of illegal act byPublic Service Commission – Does it make it lawful? – Pleasure principle abol-ished? – Interpretation Ordinance, 9 22.
The petitioner sought to quash the decision of the Transfer Appeal Board(T.A.B.) on the basis that it was not properly constituted. The Secretary,Ministry of Tertiary Education, the 4th respondent recommended the names tothe Public Service Commission (PSC) which approved the same. It was con-tended that the T.A.B. has to be constituted as provided for in theEstablishment Code.
CA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA))181
The respondent contended that in view of Article 61A (17th Amendment) court
has no jurisdiction to inquire into or call in question the impugned order and
further that as the orders made by the 4th respondent Secretary are not chal-lenged, the application is futile.
Held:
Article 61A – 17th Amendment – seeks to oust the jurisdiction of courtsto review determination of the P.S.C. except where there has been a vio-lation or imminent violation of a fundamental right.
Per Saleem Marsoof, J. P/CA.
‘The seventeenth Amendment has brought about several fundamentalchanges in relation to the public service, the most important of whichwas the abolition of the pleasure principle which was recognised by ourlaw as a fundamental norm inherent in the prerogative of the BritishCrown and was expressly embodied in every Constitution of this coun-try since 1946”.
Provisions of the Establishment Code such as Cap. 111:5:1 being sub-ordinate legislation cannot prevail over or inhibit the application ofArticle 61 in terms of which the decision of the P.S.C. which has beenmade in pursuance of powers vested in the P.S.C. by Article 65 is pre-cluded from judicial review.
However Article 55 (5) would be of no effect if the order is made by anofficer who does not have legal authority to do so. In such cases it couldbe held that the decision of the relevant authority is null and void andthe preclusive clause is no bar to review.
As the impugned decision of the 1-3 respondents who purported to actthe T.A.B. was clearly not made in pursuance of any power or duty con-ferred or imposed on them by any provision of law or delegated to themby the P.S.C. Article 61A has no application to the impugned decision.
Per Saleem Marsoof, J. P/CA.
“I am inclined to the view that the P.S.C. as well as a Committee of theCommission or a Public Officer exercising delegated authority may inappropriate circumstances ratify an order made or action taken by apublic officer without authority; there is nothing in the Constitution orany law to prevent the respondent Secretary, from making a decision inregard to a matter where some person or body of persons has previ-ously made some decision without any authority to do so.
The decision or determination made by the 4th respondent Secretary,being the decision or determination of a public officer exercising author-ity delegated by the P.S.C. are precluded from judicial review by Article61 A.
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It is futile to issue a writ, since what is sought to be quashed therein isthe decision said to have been made by the T.A.B., however the 4threspondent to whom the power of transfer has been delegated by theP.S.C. has approved and adopted the decision of the TAB. No relief hasbeen sought against that decision; therefore it would be futile to grantthe reliefs prayed for since it would still leave intact the decision of the4th respondent.
APPLICATION for writ of certiorari / mandamus.
Cases referred to:
Vallipuram v Postmaster-General – 50 N LR 214
Silva v Attorney-General – 60 NLR 145
Kodeswara v Attorney-General- 70 NLR 121 (SC)
3A. Kodeswara v Attorney-General- 72 NLR 337 (PC)
Abeywickrema v Pathirana – (1986) 1 Sri LR 120 at 182
Chandrasiri v Attorney-General – (1989) 1 Sri LR 115 at 121
Madan Mohan v Carson Cumberbatch – (1988) 2 SLR 75 at 85.
The Public Service United Nurses Union v Montague Jayawickrama,Minister of Public Administration and others – (1988) 1 Sri LR 229 at230.
Ramuppillai v Festus Perera, Minister of Public Administration,Provincial Councils and Home Affairs and others – (1991) 1 Sri LR 11
8A. R v Liyanage – 64 NLR 313.
Migultenne v Attorney-General- (1996) 1 Sri LR 401
Wickramabau v Herath – (1990) 2 Sri LR 348
Wickremaratne v Gunawardena – S.C. 5/95 SCM 29.5.95
Gunarathne v Chandrananda de Silva – (1998) 3 Sri LR 265
Kotakadeniya v Kodithuwakku and others – (2000) 2 Sri LR 175
Rajapakse v Tissa Devendra, Chairman, P.S.C. – (1999) 2 Sri LR 331
Anisminic Ltd., v Foreign Compensation Commissioner and another-(1969) 1 A11 ER 208
P.S. Bus Co. Ltd., v Members and Secretary of the Ceylon TransportBoard -61 NLR 491,496
Sideek v Jacolyn Seneviratne and others – (1984) Sri LR 83 at 90.
S. F. A. Cooray for petitioners
Janak de Silva, State Counsel for respondents.
Cur.adv.vult
CA Ratnasiri and Others v Ellawala and Others (Marsoof, J. (P/CA)) 183
July 16, 2004
MARSOOF, PC. J (P/CA)
The petitioners are instructors in different disciplines in the 01Department of Technical Education and Training who are attachedto several Technical Colleges situated in various parts of Sri Lanka.Admittedly, they belong to the Sri Lanka Technical EducationService, and they have invoked the jurisdiction of this court seek-ing an order in the nature of a writ of certiorari to have the decisionmade by the Transfer Appeal Board consisting of the 1st to 3rdrespondents, quashed on the basis that the said Board was notproperly constituted. While praying for a declaration from this courtthat the said decisions are null and void and invalid in law, the peti- 10tioners also seek an order in the nature of a writ of mandamusdirecting the respondents to convene “a fresh and a proper appealboard according to law” to determine the appeals they have lodgedagainst the decisions of the Transfer Board, with respect to theirtransfer for the year 2004.
For the purpose of appreciating the case of the petitioners, it isnecessary to refer to the Manual of Transfers applicable to theteaching staff in the Sri Lanka Technical Education Service markedP1 and IR1(a). In paragraph 01 of the said Manual of Transfers, itis expressly provided that transfers of the category of teaching staff 20to which the petitioners belong should be carried out in accordancewith the provisions of Chapter III of the Establishment Code.Paragraph 03 of this Manual provides that the Transfer Board to beestablished for this purpose should be chaired by the Director-General of Technical Education and Training or his nominee, andthat it should also include the Staff Officer heading theEstablishment Unit of the Department and a representative each ofevery trade union which has as its membership more than 15% ofthe total number of officers in the service with respect to which theBoard is constituted.30
The bone of contention in this case is the validity of the compo-sition of the Transfer Appeal Board which was, as evidenced by theletter dated 11th July 2003 (IR18) issued by the 7th respondent,constituted by the Public Service Commission, to hear appealsmade by those who are aggrieved by the decisions of the Transfer
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Board, the composition of which has been challenged in these pro-ceedings. Although there are several references to a TransferAppeal Board in the Manual of Transfers, none of its provisionsdeal with the composition of the Transfer Appeal Board. LearnedCounsel for the petitioner therefore submits that in the absence ofany provisions to the contrary in the Manual of Transfer AppealBoard has to be constituted as provided in clause 5.1 of Chapter IIIof the Establishment Code, which provides as follows:
“A Transfer Appeal Board will consist of the Head ofDepartment and a Senior Staff Officer nominated by theHead of the Department, other than an officer who served onthe Transfer Board.”
It was the main contention of learned Counsel for the petitionersthat the Transfer Appeal Board that purported to determine theirrespective appeals against the transfers ordered by the TransferAppeal Board was not constituted in accordance with Chapter III 5: 1 of the Establishment Code. Learned Counsel for the petitionerssubmitted that the Transfer Appeal Board was improperly constitut-ed in so far as it was not headed by the 2nd respondent who wasthe Director-General of Technical Education and Training, and waschaired instead by the 1st respondent Additional Secretary to theMinistry of Tertiary Education and Training, under the purview ofwhich Ministry the 2nd respondent functioned, £nd TechnicalColleges situated all over the island were in fact administered.
It will be useful at this stage to outline the process by which thePublic Service Commission purported to approve the compositionof the Transfer Board and the Transfer Appeal Board. In conformi-ty with paragraph 03 of the Manual of Transfer marked P1 and1R1(a) which provided that the Transfer Board should be headedby the Director-General of Technical Education and Training or hisnominee, the 2nd respondent by his letter dated 28th May 2003marked IR16, recommended to the Secretary to the Ministry ofTertiary Education and Training certain names of persons to beappointed to these Boards. In particular, he recommended that theTransfer Board should be chaired by Santha Manathunga, whothen held office as Director (Administration), and the TransferAppeal Board should be chaired by the 2nd respondent himself inhis capacity as Director-General of Technical Education and
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Training. The Secretary to the Ministry of Tertiary Education andTraining in turn made substantially the same recommendations tothe Public Service Commission in the letter dated 3rd June 2003marked IR17 addressed by him to the Secretary to the PublicService Commission.
The Public Service Commission approved these recommenda-tions as evidenced by its letter dated 11th July 2003 marked IR18, sosubject to two significant modifications. Firstly, it directed that thetrade union representatives prescribed by paragraph '3 : 5 (b) ofChapter III of the Establishment Code should also be added asmembers of the Transfer Board. Secondly, the Public ServiceCommission directed that in place of Santha Manathunga, whosename had been approved for appointment to the Transfer Board,an Additional Secretary to the Ministry of Tertiary Education andTraining should be appointed to the Transfer Appeal Board as ItsChairman. This was how the 1st respondent, who was anAdditional Secretary in the Ministry of Tertiary Education and 90Training, came to be appointed as the Chairman of the TransferAppeal Board of which the other members were the 2nd respon-dent Director-General of Technical Education and Training and the3rd respondent Director (Research & Development) in theDepartment of Technical Education and Training. The PublicService Commission has approved the appointment of the 2ndrespondent to the Transfer Appeal Board only as an ordinary mem-ber thereof, and not as its Chairman.
When this matter was taken up for argument on 11th May, 2004learned State Counsel appearing for the respondents raised two 100preliminary objections to the application, namely:-
In view of the provisions in Article 61A of the Constitution,this court has no jurisdiction or power to inquire into, pro-nounce upon or in any manner call in question theimpugned orders; and
In any event, insofar as the orders made by the 4th respon-dent Secretary to the Ministry of Tertiary Education andTraining are not challenged in these proceedings, the appli-cation of the petitioners is futile.
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Learned Counsel for the petitioner and learned State Counsel noappearing for the respondents were heard in regard to these pre-liminary objections, and court reserved its order to enable counselto file their written submissions.
The Ouster of Jurisdiction by Article 61A of the Constitution
Learned State Counsel has submitted inter alia that this court isdeprived by Article 61A of the Constitution of the DemocraticSocialist Republic of Sri Lanka, 1978, of jurisdiction to review thedecision of the Public Service Commission marked IR18 constitut-ing the 1st to 3rd respondents as the Transfer Appeal Board. Healso contends that this court is also precluded by Article 61A of the 120Constitution from reviewing the decisions made by the 1st to 3rdrespondents sitting as the Transfer Appeal Board. He has also sub-mitted in paragraph 2.9 of his Written Submissions that in any eventthe decisions of the 1st to 3rd respondents “have been adopted” bythe 4th respondent Secretary to the Ministry of Tertiary Educationand Training, to whom the Public Service Commission had dele-gated its powers relating to the transfer of the petitioners by itsorder dated 27th June 2003 made in terms of Article 57 of theConstitution and published in the Gazette Extraordinary No. 1295 /
26 dated 2nd July 2003 marked 1R15 and 7R2. Learned State 130Counsel contends that insofar as the 4th respondent is a public offi-cer who has purported to exercise power or duty delegated to himunder Chapter IX of the Constitution, Article 61A of the Constitutionprevents this court from looking into the validly of the orders madeby the 4th respondent.
Learned State Counsel has submitted that in applying the provi-sions of Article 61 A, court should bear in mind the features intro-duced by the Seventeenth Amendment in regard to the public ser-vice. He argues that the Seventeenth Amendment has put in placean elaborate scheme of resolving disputes relating to the appoint- 140ment, promotion, transfer, disciplinary control and dismissal of pub-lic officers, and the court must apply the preclusive clause con-tained in Article 61A of the Constitution in such a manner as toensure that the scheme formulated by the SeventeenthAmendment is given effect to the fullest extent. Learned Counselsubmits that the elaborate scheme contained in the Seventeenth
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Amendment for the resolution of disputes arising in connection withthe public service justifies the retention of the ouster clause in theform of Article 61A despite the removal of the ‘pleasure principle'from Article 55(1) of the Constitution. In the context of the submis- isosion made by learned State Counsel that “the preclusive clauseincorporates the pleasure principle and gives effect to it” (vide para-graph 2.3 of the Written Submissions of the Respondents), it is nec-essary to appraise the Constitutional ouster clauses which preced-ed Article 61A in their historic perspective and their relationship tothe ‘pleasure principle’.
The principle that all public officers hold office at the pleasure ofthe Crown was a concept necessarily incident to sovereignty whichbecame part of our law when Ceylon became part of the territoriesof the English Crown in the Eighteenth Century. The ‘pleasure prin- 160ciple’ has been recognized and given effect to in Sri Lanka in a longof decisions such as Vallipuram v Postmaster-General (1), Silvk vAttorney-General2> and Kodeswaran v Attorney-General (SC)<3)(PC)(3A). The rule was first incorporated into a Constitution in SriLanka in 1946. However, the Ceylon (Constitution) Order in Councilof 1946 (Cap. 379), which incorporated in section 57 thereof the socalled ‘pleasure principle’, did not seek to exclude generally thejurisdiction of courts to review all orders or decisions relating to thepublic service.
The origins of Constitutional ouster of jurisdiction to review 170orders and decisions relating to the public service can be traced tosection 106(5) of the Constitution of the Republic of Sri Lanka,which also expressly provided in section 107(1) the “every stateofficer shall hold office during the pleasure of the President”. Thefactors that resulted in this radical curtailment of the jurisdiction ofcourts were explained by Wanasundera, J. in his dissenting judge-ment in Abeywickrema v PathiranaW at 182 in the following words:-
“Every person acquainted with post-independence period ofour history, especially the constitutional and legal issues thatcropped up during that period, would know how the actions of isothe government and the Public Service Commission dealingwith practically every aspect of their control over public officerswere challenged and taken to the courts. A stage came whenthe Government found itself practically hamstrung by injunc-
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tions and court orders and not given a free hand to run thepublic service and thereby the administration as efficiently asit would wish. The 1972 reforms came undoubtedly as a reac-tions to this. The thinking behind the framers of theConstitution was that the public service must be made theexclusive domain of the Executive without interference from 190the courts.”
Section 106(5) of the Constitution of 1972 was replaced byArticle 55(5) of the Constitution of 1978. Article 55(1) of theConstitution of the Democratic Socialist Republic of Sri Lanka pro-vided that:-
“Subject to the provisions of the Constitution, the appointment,transfer, dismissal and disciplinary control of public officers ishereby vested in the Cabinet of Ministers, and all public offi-cers shall hold office at pleasure."
This was followed and complemented by Article 55(5) which sought 200to preclude the exercise of jurisdiction by courts and other tribunalsto review decisions relating to the public service in the followingmanner:-
‘Subject to the jurisdiction conferred on the Supreme Courtunder paragraph (1) of Article 126 no court or tribunal shallhave power or jurisdiction to inquire into, pronounce upon or inany manner call in question, any order or decision of theCabinet of Ministers, a Minister, the Public ServiceCommission, a Committee of the Public Service Commissionor of a public officer, in regard to any matter concerning the 210appointment, transfer, dismissal or disciplinary control of apublic officer.
Article 61A of the Constitution, which was introduced by theSeventeenth Amendment to the Constitution certified by theSpeaker on 3rd October, 2001, seeks to oust the jurisdiction ofcourts to review determinations of the Public Service Commission,a committee thereof or any public officer, in the following terms:-
“Subject to the provisions of paragrahps (1), (2), (3), (4) and(5) of Article 126, no court or tribunal shall have power or juris-diction to inquire into, or pronounce upon or in any manner call 220in question any order or decision made by the Commission, a
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Committee, or any public officer, in pursuance of any power orduty conferred or imposed on such Commission, or delegatedto a Committee or public officer, under this Chapter or anyother law.”
This is a preclusive clause of fair width which seeks to shut outthe courts from the domain of the public service except where therehas been a violation or imminent violation of a fundamental right.
Although the ‘pleasure principle’ had existed even prior to theadvent of the Constitutional ouster clause, the close link between 230these two concepts prompted Mark Fernando, J. to comment inChandrasiriv The Attorney-General) at 121 that-
The ouster clause was intended to give effect to the ‘pleasureprinciple’, and not to whittle it down. The application of the‘pleasure principle’ prevents the ground of dismissal beingquestioned: the ouster clause complements that principle bytaking away the jurisdiction of the courts to inquire into dis-missal – on other grounds, such as that rules and procedureshad not been complied with.”
It is however necessary to emphasize that the two concepts are 240capable of existing independently of each other, as they did prior to1972. In this context, it is pertinent to observe that the SeventeenthAmendment to the Constitution has brought about several funda-mental changes in relation to the public service, the most importantof which was the abolition of the ‘pleasure principle’ which was rec-ognized by our law as a fundamental norm inherent in the preroga-tive of the British Crown, and was expressly embodied in everyConstitution of this country since 1946. It is indeed surprising that thisprinciple was accommodated in Constitution which claimed to beindependent, republican and even democratic and socialist, and the 250removal of this concept by the Seventeenth Amendment of theConstitution will no doubt contribute to the independent of the publicservice.
The Seventeenth Amendment to the Constitution has also intro-duced several other features which seek to enhance the indepen-dence of the public service while providing greater security of tenurefor the public officers. Firstly, the appointment, promotion, transfer,
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disciplinary control and dismissal of public officers other than Headsof Departments, have been taken out of the Cabinet of Ministers andvested in the Public Service Commission. Secondly, while the 260Cabinet of Ministers is vested with the power of appointment and dis-ciplinary control of Heads of Department, it also has the power of for-mulating policies concerning the public service. Thirdly, the PublicService Commission, which is bound to conduct its affairs in accor-dance with the policy laid down by the Cabinet of Ministers, isanswerable to Parliament in regard to the exercise and discharge ofits powers and functions. Fourthly, the Seventeenth Amendmentprovides for the appointment of the members of the Public ServiceCommission on the recommendation of the Constitutional Councilestablished under the said Amendment. Fifthly, while the Public 270Service Commission is empowered to delegate to a Committee or apublic officer its powers of appointment, promotion, transfer, discipli-nary control and dismissal of specified categories of public officers, itis expressly provided that any public officer aggrieved by an ordermade by any such Committee or public officer may appeal first to thePublic Service Commission and from there to the AdministrativeAppeals Tribunal which is appointed by the Judicial ServiceCommission. All this is in addition to the beneficial jurisdiction creat-ed by Article 126 of the Constitution which is expressly retained byArticle 61A of the Constitution. These are the many pillars on which 280the edifice of the Public Service rests.
In view of the elaborate scheme put in place by the SeventeenthAmendment to the Constitution to resolve all matters relating to thepublic service, this Court would be extremely reluctant to exerciseany supervisory jurisdiction in the sphere of the public service. I haveno difficulty in agreeing with the submission made by the learnedState Counsel that this Court has to apply the preclusive clause con-tained in Article 61A of the Constitution in such a manner as toensure that the elaborate scheme formulated by the SeventeenthAmendment is given effect to the fullest extent.290
The petitioners have- challenged the legality of the decision of thePublic Service Commission (embodied in 1R18) constituting the 1stto 3rd respondents as the Transfer Appeal Board, on the basis thatthe members of the said Board were not appointed in accordancewith clause 5.1 of Chapter III of the Establishment Code. Learned
CA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) -jg-j
State Counsel argues that the judicial review of a decision of thePublic Service Commission is absolutely barred by Article 61A of theConstitution. The response of the learned Counsel for the petitionersto this argument is that Article 61A of the Constitution applies only topreclude the questioning of any order or decision made by the Public 300Service Commission In pursuance of any power or duty conferred orimposed on such Commission, under this Chapter or any other law.”
He contends that the decision of the Public Service Commissionwhich is evidenced by 1R18 has been made in violation of clause 5.1of Chapter III of the Establishment Code which is binding on thePublic Service Commission. It was contended by learned Counsel forthe petitioners that the Establishment Code has been issued by theSecretary to the Ministry of Public Administration under the authorityof the Cabinet of Ministers in terms of Article 55(4) of the Constitutionof 1978, and since the Code has the force of law the decision of the 310Public Service Commission has been made contrary to law ratherthan in pursuance of law.
In responding to this argument, learned State counsel appearingfor the respondents referred to Article 61B of the Constitution (asamended by the Seventeenth Amendment to the Constitution) whichprovides that the rules, regulations and procedures relating to thepublic service in force on the date of the coming into operation of thatAmendment (such as the Establishments Code, which was pub-lished under the authority of the Cabinet) will be deemed to continueonly until the Public Service Commission “otherwise provides”. It has 320been contended by learned State Counsel that clause 5.1 of ChapterIII of the Establishment Code is not applicable to the appointment ofthe 1 st to 3rd respondent to the Transfer Appeal Board as the PublicService Commission has made other provisions as contemplated byArticle 61B of the Constitution. It is important to note that the afore-said article is a transitional provision which enacts that:-
“Until the Commission otherwise provides, all rules, regulationsand procedures relating to the public service as are in force onthe date of the coming into operation of this Chapter, shall,mutatis mutandis, be deemed to continue in force as rules, reg- 330ulations and procedures relating to the public service, as if theyhad been made or provided for under this Chapter.”
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The attention of Court was invited by the learned State Counselto the documents marked 1R17 and 1R18 to demonstrate that theapproval of the Public Service Commission was obtained for the con-stitution of the Transfer Board and the Transfer Appeal Board, andthat such approval amounted to what learned State Counseldescribed as “otherwise providing” within the meaning of Article 61B.Learned State Counsel has stressed that the Public ServiceCommission is vested by Article 55(1) of the Constitution with all 340powers and functions pertaining to the transfer of public officers ofthe category to which the petitioners belong, and that the saidCommission has accordingly appointed the Transfer Appeal Boardby its order contained in the letter dated 11th July 2003 addressed bythe 7th respondent secretary to the Public Service Commission tothe 4th respondent marked 1R18.
It is not possible to agree with this contention of the learned StateCounsel as the document marked IR 18 only indicate that the PublicService Commission has given its approval with regard to certain rec-ommendations relating to the constitution of the Transfer Board and 350Transfer Appeal Board with respect to the Technical EducationService. Such ad hoc approval does not replace or purport to replacein a general way, the rules, regulation? and procedures relating to thepublic service as were in force on the date of coming into operationof the 17th Amendment to the Constitution. Article 61B is a transi-tional provision which was intended to keep alive “all rules, regula-tions and procedures relating to the public service” as were in forceat the time of the coming into operation of the SeventeenthAmendment until the Public Service Commission “otherwise pro-vides”. The latter phrase is commonly used in transitional provisions 360found in the Constitution and in ordinary legislation to enable the con-tinuation in force of existing laws or subordinate legislation.Interpreting Article 168(1) of the Constitution of 1978, which usessimilar phraseology, the Supreme Court has observed in MadanMohan v Carson Cumberbatch & Co. LtdS6) at 85 that-
An “existing law” has to be expressly repealed if it has to beeffaced or its existence wiped out by a specific law enacted byParliament. Otherwise it subsists and continues to remain law.”
It follows that in the absence of specific legislation or subordinatelegislation which expressly repeal and replace the existing law or reg- 370
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ulation, the latter cannot be “wiped out”. What Article 61B of theConstitution contemplates is for the Public Service Commission toformulate rules, regulations, and procedures relating to the publicservice in a general way which will have the effect of rendering thepre-existing rules, regulations and procedures inoperative.
As Wanasundera, J. observed in The Public Service UnitedNurses Union v Montague Jayewickrema, Minister of PublicAdministration and Othersf?) at 230-
“when existing general rules are sought to be altered, this
too must be done in the same manner and following the identi- 380cal procedures as for their formulation, namely, by enacting anamending rule.”
The approval contained in 1R18 does not constitute rules, regu-lations and procedures of general application which could replace thepre-existing rules, regulations and procedures including theEstablishments Code. In the circumstances, the court holds that1R18 is not in any manner sanctioned by Article 61B of theConstitution. The court is of the opinion that the Public ServiceCommission has not made any contrary provisions which will dis-continue the application of the pre-existing rules, regulations and pro- 390cedures including the provision of the manual of transfer and ChapterIII of the Establishments Code.
It is, however, relevant to note that the nature of the power thatwas vested fn the Cabinet of Ministers by Article 55(4) of theConstitution (prior to the Seventeenth Amendment), in pursuance ofwhich the Establishments Code was formulated and issued, hasbeen examined by our Courts in past judicial decisions. InAbeywickrema v Pathirana (Supra) 138 Sharvananda, C.J., hasobserved that-
“Article 55(4) empowers the Cabinet of Ministers to make rules 400for all matters relating to public officers, without impinging uponthe overriding powers of pleasure recognised under Article55(1). Matters relating to “public officer” comprehends all mat-ters relating to employment, which are incidental to employmentand form part of the terms and conditions of such employment,such as, provisions as to salary, increments, leave, gratuity,pension, and of superannuity, promotion and every termination
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of employment and removal from service. The power conferredon the Cabinet of Ministers is a power to make rules which aregeneral in their operation, though they may be applied to a par- 410ticular class of public officers. This power is a legislative powerand this rule making function is for the purpose identified inArticle 55(4) of the Constitution as legislative, not executive orjudicial in character.”
This approach was followed in The Public Service United NursesUnion v Montague Jayewickrema, Minister of Public Administrationand Others (Supra). In the course of his judgement in this caseWanasundera, J. cited the above passage with approval and specif-ically held that the Establishments Code “has all the binding force ofa statute or regulation” (page 236).420
However, in Ramuppillai v Festus Perera, Minister of PublicAdministration, Provincial Councils and Home Affairs and Othersfi)when the question arose as to whether certain Circulars issued bythe Cabinet of Ministers in terms of article 55(4) of the Constitutionsanctioning the application of ‘ethnic quotas’ for making appoint-ments to the Public Service were legislative or executive in charac-ter, a Bench of Seven Judges of the Supreme Court chose to differfrom the approach adopted in the earlier decisions. Mark Fernando,
J. observed in the course of his judgment at pages 74 and 75-
“In regard to the question whether the Circulars were made in 430the exercise of legislative power under Article 55(4), withrespect, I cannot agree with Sharvananda, C.J., that this poweris legislative power. It is, if at all, a power “to make subordinatelegislation for prescribed purposes” within the meaning of Article76(3). More likely, it is part of the executive power which theCabinet exercises, or ancillary thereto. Such powers cannotalways be neatly fitted into the traditional three-fold classifica-tion; there are residual powers which, historically or functionally,are ancillary to the legislative, the executive, or the judicialpower (thus the power of nominating Judges to hear a case, 440seemingly executive in character, was held to be an administra-tive power ancillary to the judicial power: R. v LiyanageS8A). AsProfessor Wade observes, the boundary between legislativeand executive power is not precisely demarcated
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I am therefore of the view that the Circulars in question havebeen made in the exercise of executive power, or are “admin-istrative legislation”, and thus constitute ‘executive or adminis-trative action’ within the meaning of Article 126”
A similar approach was followed by the Supreme Court in thelater case of Migultenne v Attorney General where the question 450arose in the context of the Constitution of Sri Lanka, 1972. In thisthe appellant, was a ‘state officer’ whose services had been termi-nated by the State. It was contended on behalf of the appellant thatthe discretion implicit in the “pleasure principle” had been gradual-ly restricted or diluted by substantive and procedural safeguardscontained in administrative rules and regulations governing theterms and conditions of public service made by the Cabinet ofMinisters in terms of section 106(3) of that Constitution. It was fur-ther submitted that the appellant was not liable to summary termi-nation as the said rules and regulations had made contrary provi- 460sion. In rejecting the argument that the rules made under section106(3) prevail over the “pleasure principle” enshrined in section107(1), Mark Fernando, J. observed at page 417 of the judgement-
“Mr.Goonesekera is right in contending that the rules madeunder section 106(3) have statutory force, to the same extentas those made under Artcle 55(4). However, this rule makingpower is not a “legislative” power, as stated by Sharvananda,
C.J., in Abeywickrema v Pathirana, {supra) cited with approvalby Wanasundera, J. in P.S.U.N.U. v Jayawickrema, (supra)but “executive or administrative" (as held by a bench of seven 470Judges in Ramupillaiv Perera, (supra) and is therefore subjectto the fundamental rights jurisdiction, like other subordinatelegislation (such as Emergency Regulations: Wickramabanduv HerathS1°) The recent decision in Wickremaratne vGunawardenaftV that the making of a regulation by theMinister is per se the exercise of legislative power delegatedto him by Parliament, and therefore not subject to the funda-mental rights jurisdiction, is inconsistent with Ramupillai andWickramabandu, which do not appear to have been cited.
I am therefore of the view that rules made under section 480106(3) are subordinate legislation, and cannot be regarded aslegislation within the meaning of section 107(1). Subordinate
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legislation, even where authorized by the Constitution, cannotprevail over (and thereby amend) the Constitution, unless theConstitution clearly authorizes such a result.”
This Court is clearly bound by the decision of the Bench ofseven Judges of the Supreme Court in Ramuppillai v FestusPerera, Minister of Public Administration, Provincial Councils andHome Affairs and Others (supra) and is inclined to the view adopt-ed by the Supreme Court in Migultenne v Attorney-General (supra) 490that rules and regulations such as those found in the EstablishmentCode, which are formulated by the Cabinet of Ministers under theabove mentioned Constitutional provisions are subordinate ratherthan primary legislation. Such subordinate legislation, even whereauthorized by the Constitution, cannot prevail over (and therebyamend) the Constitution, unless the Constitution clearly authorizessuch a result. Accordingly, I hold that provisions of theEstablishment Code such as Chapter 111:5.1 upon which the peti-tioners have placed so much reliance, being subordinate legisla-tion, cannot prevail over, or inhibit the application of, Article 61A of soothe Constitution in terms of which the decision of the Public ServiceCommission embodied in 1R18, which has been made in pur-suance of power vested in the Commission by Article 55 of theConstitution, is precluded from judicial review. The preliminaryobjection based on Article 61A against the judicial review of thevalidity of the order of the Public Service Commission communi-cated by 1R18 is therefore upheld.
The petitioners also challenge the validity of the decisions orrecommendations made by the 1st to 3rd respondents sitting as theTransfer Appeal Board with respect to the transfers of the petition- 510ers on the basis that their appointment violated various provisionsof Chapter III of the Establishments Code. Here again, learnedState Counsel contends that judicial review of decisions of publicofficers are precluded by Article 61A of the Constitution as the 1stto 3rd respondents are public officers exercising authority conferredon them by the Public Service Commission. In this context, it is rel-evant to observe that although it is common ground that 1st to 3rdrespondents are public officers, there is no evidence to establishthat they have been delegated any authority by the Public ServiceCommission under Article 56 or Article 57 of the Constitution. This 520
CA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) 97
is important in the context of Article 61A of the Constitution as itonly seeks to shut out the jurisdiction of court with respect to anyorder or decision made by a Committee of the Public ServiceCommission or any public officer, “in pursuance of any power orduty …. delegated to a Committee or public officer, under thisChapter or under any other law”
In terms of Article 56(1) of the Constitution, the Commission maydelegate its powers to a Committee consisting <?f three persons (notbeing members of the Commission who need not necessarily bepublic officers), its powers of appointment, promotion, transfer, dis- 530ciplinary control and dismissal of such categories of public officersas are specified by the Commission. In terms of Article 57(1) of theConstitution, the Commission may delegate to a public officers, itspowers of appointment, promotion, transfer, disciplinary control anddismissal of such categories of public officers as are specified bythe Commission. Sub-article (2) of Articles 56 and 57 expresslyrequire that information pertaining to such delegation of powers bepublished in the Gazette. While the respondents have not beenable to show that the Constitution or any other law had conferred orimposed any power or duty on the Transfer Appeal Board or indi- 540vidually on the 1st to 3rd respondents who constituted the saidBoard, they have also failed to produce any Gazette to prove com-pliance with the requirements of Articles 56(2) or 57(2).
In any event, it appears from certain provisions of Chapter III ofthe Establishments Code that the role of the Transfer Board andthe Transfer Appeal Board is purely advisory, and that they did nothave authority to order transfers on their own right. For instance,Chapter 111:3:1 of the Establishment Code provides that “Theauthority ordering a transfer will act on the advice of a TransferBoard". According to the tabulation in Chapter lll:2:3 item 3(a) the 550authority that can order the transfer of a public officer in a staffgrade who is not in the Combined Services is the Secretary to therelevant Ministry. According to 3:11 ‘The Transferring Authority mayvary the decisions of the Transfer Board…” Chapter lll:5:2 sets outthe specific grounds on which the Transfer Appeal Board will enter-tain an appeal against a recommendation of the Transfer Board,any clause 5:3 provides that “full and final authority is vested in theSecretary to the Ministry to decide in cases which a Transfer
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Appeal Board cannot settle.” As the impugned decision of the 1st to3rd respondents, who purported to act as the Transfer Appeal 560Board was clearly not made in pursuance of any power or duty con-ferred or imposed on them by any provision of law or delegated tothem by the Public Service Commission, Article 61A has no appli-cation to their impugned decision. It is therefore not possible touphold the preliminary objection raised by the respondents withrespect to the impugned decisions of the Transfer Appeal Boardconsisting of the 1st to 3rd respondents with respect to the trans-fers of the petitioner.
This brings us to the submission made in paragraph 2.9 of theWritten Submissions of the respondents to the effect the decisions 570of the 1st to 3rd respondents “have been adopted" by the 4threspondent Secretary to the Ministry of Tertiary Education andTraining who has been delegated by the Public ServiceCommission certain powers relating to inter alia the transfer of thepetitioner. Reference was made by learned State Counsel to theorder of the Public Service Commission dated 27th June 2003made in terms of Article 57 of the Constitution and published in theGazette Extraordinary No. 1295/26 dated 2nd July 2003 marked1R15 and 7R2. Learned State Counsel contends that insofar as the4th respondent is a public officer who has purported to exercise ssopower or duty delegated to him under Chapter IX of theConstitution, Article 61A of the Constitution prevents this court fromlooking into the validity of the orders made by the 4th respondent.Learned State Counsel has submitted that the decision of theTransfer Board, as approved or varied by the Transfer AppealBoard, has been adopted or ratified by the 4th respondents in hiscapacity as the Secretary to the Ministry of Tertiary Education andTraining as evidenced by paragraph 1 of the letter dated 17thOctober 2003 marked P2 and paragraph 2 of the letter dated 9thDecember 2003 marked P5 addressed to two of the petitioners. 590The learned State Counsel has argued that even if one assumes(without conceding) that the Transfer Appeal Board was not dulyconstituted, the adoption of the findings of the Transfer AppealBoard by a public officer duly exercising authority delegated to himby the Public Service Commission would effectively preclude judi-cial inquiry into the validity or correctness of the decisions of suchpublic officer.
CA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) igg
In this connection, learned Counsel for the petitioners has sub-mitted that the preclusive clause contained in Article 55(5) of theConstitution prior to the Seventeenth Amendment of theConstitution was of wider scope than the provisions contained inArticle 61A brought into being by the Seventeenth Amendment. Hecontends that Article 61A only precludes the judicial review of anyorder or decision made by the Public Service Commission, aCommittee, or any public officer, “in pursuance of any power or dutyconferred or imposed on such Commission,■ or delegated to aCommittee or public officer, under this Chapter or under any otherlaw” He argues that this is much narrower than the formula in theold Article 55(5) which ousted jurisdiction of court "in regard to anymatter concerning the appointment, transfer, dismissal or discipli-nary control of a public officer.” It is however, noteworthy thatdespite the material differences in the language used in the twoouster clauses to which learned Cousel have drawn the attention ofCourt, the legal position under both ouster clauses would appear tobe similar. This is mainly because even though Article 55(5) of theConstitution did not expressly require for its application that theauthority in question should have acted in pursuance of any poweror duty conferred or imposed on it by law or delegated to it byPublic Service Commission under the Constitution or any law,which are expressed preconditions for the application of Article61 A, our courts have implied the requirement of a similar nexus ofauthority even when interpreting Article 55(5).
Our courts have held that Article 55(5) would be of no effect ifthe order is made by an officer who does not have legal authorityto do so. In such cases our courts have held that the decision of therelevant authority is null and void and the preclusive clause in theConstitution is no bar to review. For instance in Abeywickrema vPathirana (supra) in the context of the alleged termination of ser-vice through acceptance of a letter of resignation, the SupremeCourt observed at page 155 of the judgment that if the particularofficer to whom the letter was addressed had no legal authority tomake an order with respect to it, Article 55(5) did not bar a chal-lenge of the order made by that officer. In Gunarathna vChandrananda de Silvd12> where a public officer was sent on com-pulsory leave by the Secretary to the Ministry of Defence, and the
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power to do so was vested in the Public Service Commission whichhad not delegated such power to the Secretary to the Ministry ofDefence, the Court of Appeal held that the purported order of com-pulsory leave was ultra vires and could be reviewed by courtdespite the ouster clause. In Kotakadeniya v Kodithuwakku and 640others^13> the Court of Appeal once again held that the ouster ofjurisdiction by Article 55(5) was of no effect to shut out the jurisdic-tion of court to review an order of transfer of a Senior DeputyInspector General of Police made by the Inspector General ofPolice, as the latter had no power or authority delegated by thePublic Service to transfer an officer belonging to that rank. It istherefore crucial to decide whether the 4th respondent has beenproperly delegated by the Public Service Commission the power totransfer officers such as the Petitioners who belong to the Sri LankaTechnical Education Service.650
The petitioners have admitted in paragraph 14 of the counteraffidavit dated 2nd May 2004 filed by them that the Public ServiceCommission has made an order dated 27th June 2003 published inthe Gazette Extraordinary No. 1295/26 dated 2nd July 2003 marked1R15 and 7R2 in terms of Article 57 of the Constitution delegatingsome of its powers with respect to certain categories of public offi-cers to certain high ranking public officers. While the respondentsclaim that the said order is applicable to officers in the Sri LankaTechnical Education Service, the petitioners have vehementlydenied this position. To facilitate analysis of this order, the relevant 660parts of the order and its Schedule are quoted below:-
THE CONSTITUTION OF THE DEMOCRATIC SOCIALISTREPUBLIC OF SRI LANKA
Delegation of Powers by the Public Service Commissionin terms of Article 57
By virtue of the powers vested in the Public Service Commissionin terms of Article 57 of the Constitution of the Democratic SocialistRepublic of Sri Lanka, the said Commission does hereby-
(1) delegate to the Public Officers specified in Column 11 of theSchedule hereto, its powers of appointment, promotion, transfer, 670disciplinary control and dismissal as are specified in Column III of
CA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) 201
the Schedule hereto, in respect of the categories of public officersas are specified in Column 1 of the Schedule hereto;

This delegation will take effect from 01.08.2003.
By Order of the Commission
(H.D.L.GOONEWARDENE)
Secretary, 680Public Service Commission
27th June 2003
The petitioners contend that the Sri Lanka Technical EducationService is an All Island Service which is parallel to, though distinctfrom, the Sri Lanka Education Administrative Services which is list-ed as item (e) in cage 1 of column I of the Schedule to the saidorder. Although the Sri Lanka Technical Education service is notlisted as an All Island Service in cage 1 of the column 1 of the saidorder, the petitioners contend in paragraph 14 of their counter affi-davit that they nevetheless belong to an All Island Service. In 690Paragraph 15 of their counter affidavit the petitioners expresslystate that they have been wrongly classified in cage 2 of column 1as Staff Grade Officers not belonging to any All Island Services. Itis argued on behalf of the petitioners that as they belong to an AllIsland Service which is not listed in cage 1 of column 1, they can-not be categorized as "Staff Grade Officers not belonging to any ofthe All Island Services” in cage 2 of column 1 either, and that theorder of delegation marked 1R15 and 7R2 has no application at allto the Sri Lanka Technical Education Services. If this argument isaccepted, it would lead to the conclusion that all powers of appoint- 700ment, promotions, transfers, disciplinary control and dismissal ofthe officers belonging to the Sri Lanka Technical Education Serviceis vested in and can only be exercised by the Public ServiceCommission, and that the 4th respondent had no delegated author-ity to order the transfers of the petitioners.
The position taken by the petitioners raises the question as towhether the list of All Island Service contained in cage 1 of column1 of 1R15 / 7R2 is exhaustive. The petitioners contend that it is, but
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the respondents argue with equal fury that it is not. It is relevant tonote that the 7th respondent, Secretary to the Public Service 710Commission has in her affidavit expressly stated that the Sri LankaTechnical Education Service is not an All Island Service. She hasalso stated that the powers of transfer of staff grade officers belong-ing to the Sri Lanka Technical Education Service have been dele-
SCHEDULEColumn I
Categories of Officers
Column II
Public Officers to whom thepowers are delegated
Column III
Powers to be delegated
1. Officers belonging to anyof the following all IslandServices
(a) Sri Lanka AdministrativeService
Sri Lanka AccountantService
Sri Lanka EngineeringService
(d) Sri Lanka Scientific Service
(e) Sri Lanka EducationAdministrative Service
(f) Sri Lanka Planning Service
(g) Sri Lanka AgriculturalService
(h) Animal Production and HealthService
(i) Sri Lanka Medical Service
Secretary to the Ministry ofthe Minister in charge of thesubject of Public Administration
Deputy Secretary to theTreasury
Secretary to the Ministry ofthe Minister in charge of thesubject of Public Administration
Secretary to the Ministry ofthe Minister in charge of thesubject of Public Administration
Secretary to the Ministry ofthe Minister in charge of theSubject of Education
Secretary to the Ministry of theMinister in charge of the subjectof Planning
Secretary to the Ministry of theMinister in charge of the subjectof Agriculture
Secretary to the Ministry of theMinister in charge of the subjectof Livestock Development
Secretary to the Ministry of theMinister in charge of the subjectof Health
(i) Transfers accordingto schemes approvedby the Public ServiceCommission
(ii) ■ Disciplinary Control inrespect of offencesspecified in the SecondSchedule of offences inChapter XLVII of theEstablishment Code
OA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) 203
Column IColumn IIColumn III
Categories of OfficersPublic Officers to whom thePowers to be delegated
powers are delegated
(j)Indigenous Medical Service Secretary to the Ministry of the
Minister in charge of the subjectof Indigenous Medicine.
(k)Sri Lanka Architecture Service Secretary to the Ministry of the
Minister in charge of the subjectof Public Administration
Staff Grade Officers notSecretaries of the Ministries(i) Transfers according to
belonging to any of theof the Ministers in Charge of theschemes approved by
All Island ServicesRespective subjectsthe Public Service
Commission
(ii) Disciplinary Control inrespect of offencesspecified in the SecondSchedule of offences inChapter XLVII of theEstablishment Code
Staff Grade Officers notRespective Meads of(i) Transfers according to
coming under any MinistryDepartmentsschemes approved by
the Public ServiceCommission
(ii) Disciplinary Control inrespect of offencesspecified in the SecondSchedule of offences inChapter XLVII of theEstablishment Code
Non-Staff Grade OfficersDirector-General of CombinedAppointment, Promotion,
belonging to the CombinedServicesTransfer, Disciplinary
ServicesControl and Dismissal
Non-Staff Grade Officers notRespective Heads ofDepartments Appointment, Promotion,
belonging to theCombinedTransfer, Disciplinary
ServicesControl and Dismissal
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gated by the order made by the Public Service Commission marked1R15 and 7R1. Even if one assumes that there could be other AllIsland Services functioning in Sri Lanka such as, for example, theCombined Services, another question that arises is whether thewords “any of the All Island Services" found in cage 2 of column 1is referable only to the All Island Services in cage 1 of column 1 orwhether those words extend to or include other All Island Servicesfunctioning in Sri Lanka which are not listed in cage 1 of column 1. 720The petitioners in paragraph 15 of their counter affidavit state thatthey have been "wrongly listed under the 2nd category or cageunder column I" which suggests that in view of their position thatthey belong to an All Island Service not included in cage 1 of col-umn 1, they should be treated as not falling within any of the cagesin column 1 of 1R15 or 7R2, which position is hotly contested by therespondents. I am inclined to the view that the reference in cage 2of column 1 to "Staff Grade Officers not belonging to any of the All 730Island Services" was intended to cover and apply to all staff gradeofficers not belonging to the All Island Services mentioned in cage1 of column I. This would mean that staff grade officers in any AllIsland Services such as the Combined Services and Sri LankaTechnical Education Service will come within cage 2 of column I.
This conclusion is supported by the position that cage 4 and cage5 of column I apply only to non-staff grade officers and cage 3 ofcolumn I‘apply only to staff grade officers not coming under anyMinistry. It is significant to note that in paragraph 9 (2) of the writ-ten submission dated 25th May 2004 filed on behalf of the petition- 740ers, learned Counsel for the petitioners has conceded that “Thepetitioners belong to an All Island Service which falls within not thefirst cage, but the 2nd cage in the 1st column to the Schedule tothat Gazette". I hold that the Secretaries of the Ministries of theMinisters in charge of the respective subjects, such as the 4threspondent in the case of staff grade officers such as the petition-ers clearly had delegated authority to transfer such officers, andthere is evidence to find that in fact the 4th respondent has pur-ported to adopt the decision of the Transfer Appeal Board.
The question that arises in this connection is that, assuming that 750the 1st to 3rd respondents did not have authority to make theimpunged transfer orders, can the lack of authority be cured by
CA Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) 205
adoption or ratification by the Public Service Commission or by apublic officer such as the 4th respondent exercising authority del-egated by the Public Service Commission? In Gunarathne vChandrananda de Silva (supra), where the Court had to decidewhether a decision made without lawful authority by the Secretaryto the Ministry of Defence, to send the petitoner on compulsoryleave can be protected from judicial scrutiny by reason of its pur-ported adoption by the Public Service Commission, U. De Z. 760Gunawardana, J. at 282 to 283 made the following observation –
“It is worth recalling the solitary argument put forward onbehalf the respondent viz. that as the Public ServiceCommission had "granted its approval" to the decision madeby the respondent by the date that the letter P1 was, in fact,served on the petitioner – the Public Service Commissionmust be deemed, if not, held to have ratified the impungeddecision made by the respondent. At any rate, the PublicService Commission could not, in law, “grant approval" and soratify or impart validity and efficacy to the decision of the 770respondent, reasons being at least four-fold:
(i) It is an inflexible and deep-rooted principle of law, which isas elementary as it is well-known, that no act or decision whichis void at its inception, as is the decision of the respondent,can ever be ratified …."
Although the above quoted dicta might at first sight support theview that in no case can an order made without authority be recti-fied by subsequent grant of authority, it must be observed that thecomment was clearly obiter as it was made in the context of a casewhere the Public Service Commission had acted as a “rubber 780stamp” (Per Hector Yapa, J. at 274) and there was no genuineexercise of the mind of the Commission on the question in issue.Furthermore, the said dicta has overlooked the administrative prac-tice of taking urgent action whenever exigencies of the service sodemand and obtaining the necessary covering approval thereafter,a practice which is often resorted to and is sanctioned by adminis-trative procedures and judicial decisions. See Rajapakse v TissaDevendra, Chairman, Public Service Commission and Others.
More importantly, the attention of Gunawardana, J. does not
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appear to have been invited to the following observations of 790Sharvananda, CJ. in Abeywickrema v Pathirana (supra) at 155-
ubut if the order / decision of the public officer, acting ultra
vires has been adopted by the … Public Service Commission,a Committee of the Public Service Commission or of a publicofficer to whom the Public Service Commission has made thenecessary delegation under Article 58(1), then of course, suchdecision or order becomes the order of that constitutionalfunctionary, and certainly its validity cannot be inquired into.”
While I am inclined to the view that the Public ServiceCommission as well as a Committee of the Commission or a pub- 800lie officer exercising delegated authority may in appropriate circum-stances ratify an order made or action taken by a public officer with-out authority, I also consider in the context of the present case thatthere is nothing in the Constitution or any law to prevent the 4threspondent from making a decision in regard to a matter wheresome person or body of persons has previously made some deci-sion without any authority to do so.
In this context it is also necessary to consider the applicationof section 22 of the Interpretation Ordinance in applying the provi-sions of Article 61A of the Constitution. Section 22 of the 8ioInterpretation Ordinance sought to clarify the law in the wake of thedecision of the House of Lords in Anisminic Ltd. v ForeignCompensation Commission and Another:<15> Section 22 whichsought to exclude judicial review in general terms, also recognizedexceptions in terms of which judicial review is permitted in limitedcircumstances, one of which is where the authority in question hasacted without jurisdiction. I am inclined to the view that since thiscourt exercises a supervisory jurisdiction in terms of Article 140 ofthe Constitution which commences with the words "Subject to theprovisions of the Constitution", the constitutional ouster containedin Article 61A excludes judicial review even in the situations con- 820templated by the proviso to section 22 of the InterpretationOrdinance as Mark Fernando, J. observed in Migultenne v TheAttorney-General (supra) at 419 in connection with sections 106and 107 of the Republican Constitution of 1972.
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"Finally, the contention that ouster clauses in the Constitutionshould be strictly interpreted restricting the ambit of the ouster,can be far more readily accepted where the Constitution itselfcontains other indications of an intention to permit review;such as the entrenchment of the fundamental rights and otherjurisdictions of this court, and the writ jurisdiction of the Courtof Appeal. It is difficult, however to read an implied exceptioninto an ouster clause in the Constitution by reference to gen-eral provisions in ordinary laws governing the jurisdictions ofthe courts; the maxim generalia specialibus nonderogant,would apply with much greater force when the special provi-sions are found in the Constitution itself."
I therefore hold that the decisions or determinations made bythe 4th respondent as the Secretary to the Ministry of TertiaryEducation and Training, being the decisions or determinations of apublic officer exercising authority delegated by the Public ServiceCommission, are precluded from judicial review by Article 61A ofthe Constitution. As noted earlier, subordinate legislation includingrules and regulations made by the Cabinet of Ministers prior to theSeventeenth Amendment such as the provisions of theEstablishments Code, cannot inhibit the application of Article 61Aof the Constitution, in terms of which the decision of the 4tii respon-dent taken in pursuance of power vested in him by reason of a del-egation of authority lawfully made by the Public ServiceCommission under Article 57 of the Constitution, is precluded fromjudicial review. The first preliminary objection taken up by learnedState Counsel has therefore to be upheld.
The Question of Futility
The other preliminary objection raised on behalf of therespondents is that insofar as the orders made by the 4th respon-dent Secretary to the Ministry of Tertiary Education and Training arenot challenged in these proceedings, the application made by thepetitioners to this court is an exercise in futility. It is evident from thefirst paragraph of P2 and the second paragraph of P5 that the 4threspondent has ordered the transfer of the petitioners. In the cir-cumstances it is submitted by learned State Counsel appearing forthe respondents that the present application seeking to quash onlythe decision of the 1st to 3rd respondents purporting to sit as the
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Transfer Appeal Board should be refused on the ground offutility.
It is, however, submitted by learned Counsel for the petitionersthat the petitioners were not made aware of the decision of the 4threspondent until after the present application was filed, and that sincethe respondents are now relying on a purported decision of the 4threspondent, the petitioners are entitled to a contend and show Court 870on the material filed by the respondents themselves that the purport-ed decision of the 4th respondent is invalid. This court cannot acceptthe argument of the petitioners that they were not aware of the deci-sion of the 4th respondent until these proceedings were commenced,as the petitoners themselves have produced with their affidavit dated6th January 2004 (filed along with the petition which initiated theseproceedings) the letters referred to earlier marked P2 and P5 inwhich it is expressly stated that the aforesaid transfers for the year2004 in question have been approved by the 4th respondent.Furthermore, even though the petitioners have filed the counter affi- ssodavit dated 2nd May 2004, no application was made on behalf of thepetitioners to amend the prayer seeking to have quashed by way ofcertiorari that the decisions of the 4th respondent, Secretary to theMinistry of Tertiary Education and Training.
This court is mindful of the fact that the prerogative remedies itis empowered to grant in these proceedings are not available as ofright. Court has a discretion in regard to the grant of relief in the exer-cise of its supervisory jurisdiction. It has been held time and timeagain by our Courts that "A writ… will not issue where it would bevexatious or futile." See, P.S. Bus Co. Ltd. v Members and Secretary 89aof the Ceylon Transport Board.'6 In Siddeekv Jacolyn Seneviratneand Other17 at 90, Soza, J. delivering the judgment of the SupremeCourt observed that –
"The Court will have regard to the special circumstances of thecase before issuing a writ of certiorari. The writ of certiorariclearly will not issue where the end result will be futility, frustra-tion, injustice and illegality.
It is manifest that it would be furtile to issue a writ of certiorari asprayed for in the petition since what is sought to be quashed thereinis the decision said to have been made by the Transfer Appeal 900
CA
Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Jayasurlya, J.)
209
Board. However, as evidenced by paragraph 1 of P2 and paragraph2 of P5, the 4th respondent, to whom the power of transfer has beendelegated by the Public Service Commission has approved andadopted the decisions of the Transfer Appeal Board. No relief hasbeen sought against that decision although the petitioners wereaware of it having received P2 and P5. In the circumstances, it wouldbe futile to grant the relief prayed for since it would still leave in tactthe decisions made by the 4th respondent. In the circumstances thecourt has to uphold the preliminary objection taken up by the respon-dents on the basis of futility.910
ConclusionIn the result, this court makes order upholding both preliminaryobjections taken up on behalf of the respondents in this case on 11thMay 2004 and dismissing the application filed by the petitioners. Inall the circumstances of this case, there shall be no order for costs.
SRIPAVAN, J. – I agree.
Application dismissed.