This delegation will take effect from 01.08.2003.
By Order of the Commission
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-
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
(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.
C4 Ratnasiri and others v Ellawala and others (Marsoof, J. (P/CA)) 207
"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
Ajit Samarakoon v The Republic (Kobaigane Murder Case)
(Jayasurlya, J.)
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.