S. G. DE ZOYSA, Petitioner, and THE PUBLIC SERVICE COMMISSION et al. Respondents

094-NLR-NLR-V-62-S.-G.-DE-ZOYSA-Petitioner-and-THE-PUBLIC-SERVICE-COMMISSION-et-al.-Respondents.pdf


492
Da Zoysa v. The Public Service Commission,
I960Present : H. N. G. Fernando, J.
S, G. DE ZOYSA, Petitioner, and THE PUBLIC SERVICECOMMISSION et al., Respondents
S. C. 250—Application for the grant and isstie of Mandates in the nature of
Writs of Certiorari and Mandamus
Public officer—Compulsory retirement of public officers—Procedure—“ RetirementRules ”—Regal effect of Rules—Public and Judicial Officers (Retirement)Ordinance (Cap. 253), s. 2—Rules made thereunder and published in the Gazettesof 20th April 1040 and 29th April 1055—Public Service Commission Rulesissued by direction of the Public Se-~vice Commission on 21st August 1056,Rules 6U-C2—Public Service Commission Rules published in the Gazette of22nd September 1047, Rules 62, 63—Ceylon (Constitution) Order-in-Council,1046, Articles 57, 60, 61, 72, 87, 88—Stale Council Order-in-Council, 1031,Articles 86, 80—Public Services Regulations published in Gazette of 30thJune 1031, Regulations S2, 87—Certiorari—Mandamus.
The petitioner was a member of the Police Force since 1931. Prior to the dateof the present application he held the appointment of Deputy Inspector-Generalof Police and, in terms of section 57'of the Ceylon (Constitution) Order-in-Council,1946, held office under the Crown “ during Her Majesty’s pleasure He wasbom in 1909 and was fifty years of age on 15th January 1959. He was liable,under the “ Retirement Rules ” made under the Public and Judicial Officers(Retirement) Ordinance, to be required by the Public Service Commission to retireupon his completing the age of fifty years or at any time thereafter. On 6thNovember 1958 he was granted by the Permanent Secretary to the Ministry ofDefence and External Affairs an extension of service for one year with effectfrom 15th January 1959 ; but this extension was statecLjbp he subject to theRetirement Rules. He received a further letter of extension on 20th Octobor1959 and expected that he would not be called upon to retire before 16th January1961. Nevertheless, on 27th November 1959 the Public Service Commissionmade order requiring the petitioner to retire from service on 1st March 1960.No opportunity was given to the petitioner to show cause against the actionproposed to be taken. Admittedly the order of retirement was not precededby the procedure prescribed by Rulos 60-62 of the Pubfic"Service CommissionRules of 21st August 1956 or by Rulos 62 and 63 of the Rulos published in theGazette of 22nd September 1947.
H. N. G. FERNANDO, J.—De Zoysa v. The Public Service Commission 403
Held, that the Public Service Commission Rules relating to the procedure tobe followed prior to the retirement of a public officer did not have the samelegal effect as a statutory provision and could not, therefore, be enforced byCertiorari and Mandamus.
.^^-PPLICATION for Writs of Certiorari and Mandamus.
H. V. Perera, Q.C., with H. W. Jayewardene, Q.C., S.J. Kadirgamar,W. T. P. Goonelilleke and H. L. 75. Cooray, for Petitioner.
V. Tennekoon, Deputj^ Solicitor-General, with B: C. F. Jayaratne,Senior Crown Counsel, and R. S. Wanasundera, Crown Counsel, for 2ndand 3rd Respondents and 4th substituted Respondent.
Cur. adv. vult.
November 15, 1960. H. N. G. Fernando, J.—
The petitioner has been a member of the Police Porce since 1931, andat the time of the occurrence of the events which led to the making of thisApplication, held the appointment of Deputy Inspector-General of Police.In terms of section 57 of our Constitution he hold office “ during pleasureHaving been born in 1909, he was fifty years of age on January 15th1959.
Rules made under the Public and Judicial Officers (Retirement) Ordi-nance (Cap. 253) and published in the Gazette of April 29, 1949, as subse-quently amended by a Rule published in the Gazette of April 29, 1955,(to which I will for convenience refer as the '* Retirement Rules ”)provide inter alia that the tc competent authority” may require an officerof the Police Department to retire upon his completing the age of fiftyyears or at any time thereafter. It is beyond dispute that the authoritycompetent in the case of the petitioner to require him to retire under theRetirement Rules was the Public Service Commission.,
There has apparently been a practice, the source of which (if I recollectrightly) was not referred to in the argument, in pursuance of which thePermanent Secretary to the Ministry of Defence and External Affairs,by the document dated 6th November 1958 granted to the petitioner anextension of service for one year with effect from 15th January 1959;but this extension was stated to be subject to the “ Gazette Notificationregarding retirement of Police Officers in Gazette No. 10,790 of 29th April1955 ”, which was the Notification of the amending Rule to which I havealready referred. In view of the terms of this letter of extension it isunnecessary for me to state reasons for the opinion that the extensionthus allowed by the Permanent Secretary could not fetter the power of•the Public S<y.vice Commission to make an order of retirement under theRetirement Rules. I need only note for present purposes that the peti-tioner must rightly have expected that he would not be called upon to
494 H. 3ST. G. FEKISTANDO, J.—De Zoysa. v. The Public Service Corn-mission
retire prior to 15th January 1960. Indeed, having regard to a furtherletter of extension dated 20th October 1959 issued by the PermanentSecretary to the Ministry of Justice his rightful expectation must havebeen that he would not be called upon to retire before 16th January 1961.
Nevertheless on 27th November 1959 the Public Service Commissionmade order requiring the petitioner to retire from service on 1st March1960, advising him that he should avail himself prior to that date of leavepreparatory to retirement. It has not been argued that there is anythingin the Retirement Rules themselves which vitiates this order.
In the affidavit attached to his petition, the petitioner states his beliefthat the Public Servico Commission in making the order of retirementacceded to the requests or wishes of politicians including the then Ministerof Justice, and sets out a history of events which according to him promp-ted the desire for his removal from service. It is fortunately unneces-sary to enter into a consideration of these allegations of fact, for eminentcounsel appearing for the petitioner has conceded that the allegations arenot relevant to the decision of the questions of law arising upon thepetition. On 31st May 1960 the petitioner applied to this Court (1) for aWrit of Certiorari quashing the order of retirement made by the PublicService Commission and (2) for a Writ of Mandamus requiring the Com-mission inter alia to recognise that the petitioner was and is an officer ofPolice. It is clear that a Writ of Mandamus could issue, if at all, onlyif the order of retirement is first quashed by way of Certiorari.
The principal grounds of the application to quash the order of retire-ment, as they were stated in the arguments of the petitioner’s counsel,are I trust adequately summarised thus :
(а)A body empowered to make an order, even though the order be
administrative and npt judicial or quasi-judicial, is bound tocomply with any enactment, having the force of law, whichregulates the procedure to be followed in the making of thatorder. In the event of non-compliance with such an enactmentthis Court is entitled in appropriate circumstances to quashthe order by Writ of Certiorari. Where such an enactmentprovides that a person likely to be affected or prejudiced by aproposed order will have an opportunity to make his represen-tations, the failure to afford him such an opportunity is anappropriate ground for quashing the order.
(б)The Public Service Commission Rules, issued by direction of the
Commission on August 21, 1956 prescribed the procedure to befollowed before the Commission will make an order of retirementunder the Retirement Rules. The relevant procedural provi-sions are set out in Rules 60-62 of the Public Service CommissionRules. These Rules have the force of law. If they do not,then alternatively, Rules 62 and 63 of a set of Rules published'in the Gazette of September 22nd 1947 which are to a similar
H. X. G. FERNANDO, T.—De Zoysa v. The Public Service Commission 495
effect are still in operation, having the force of law in that theywere made by the Governor by virtue of powers conferred bysection 87 of the Ceylon^ Constitution Order-in-Council, 1946.Admittedly, the impugned order of retirement was not precededby the steps envisaged in these Rules, and the principle statedat (a) above therefore applies.
The Rules thus relied on provide that where a Head of a Departmentconsiders that an officer should be required to retire under the RetirementRules he will make a recommendation to the Permanent Secretary andinform the officer concerned of the proposal to retire him. It is furtherprovided that the Permanent Secretary will make his recommendationto the Public Service Commission forwarding the statement of the officer,if any. It is conceded that in the present instance no appropriate recom-mendations were made by the Head of the Department or the PermanentSecretary and also that the petitioner was not informed of the proposalto make the order of retirement. The substantial argument for thepetitioner has been that the making of these recommendations and theaffording to the petitioner of an opportunity to make his representationsregarding his proposed retirement were conditions precedent to theexercise by the Commission of its power to make an order of retirement,and that, since the conditions were not fulfilled, the Commission in makingthe order acted in excess of its statutory powers.
The principal question for determination is whether the Commissionis bound by the Rules, or to put the matter differently, whether theRules have the force of law. In considering this question it is convenientfirst to examine the origin and what I might call the ** legal status J> ofthe Rules published in the Gazette of September 22nd 1947, for the argu-ment that the existing Public Service Commission Rules have the forceof law depends upon the prior contention that the 1947 Rules have thatforce.
The State Council Order-in-Council, 1931 provided that the appoint-ment, dismissal, etc., of public officers shall be vested in the Governorsubject to instructions given to him through the Secretary of State ; andArticle 89 of that Order established a Public Services Commission to“ advise the Governor ” in the exercise of his powers, and also empoweredthe Governor “ by regulation subject to the approval of the Secretaryof State to prescribe the duties of and the procedure to be followed by theCommission in the exercise of their duties In pursuance of this powerthe Governor made the Public Services Regulations which were publishedin the Gazette of June 30th 1931. Regulations 82 and 87 of those Rulesprovided as follows :—
“ 82. The age for retirement of pensionable officers from the PublicService is fifty-five years. Every such public officer may be requiredto retire from the Public Service on or after attaining the age of retire-ment. If a Head of a Department considers it to be in the publio
496 H. N. G. PERNANDO, J.—De Zoyaa v. The Public Service Commission
interest that an officer in his Department should be so required to retire,he should make a recommendation to the Public Services Commissionaccordingly.
“87. If a Head of a Department recommends that a public officerwhose emoluments exceed Its. 15,000 per annum should be requiredto retire in terms of Public Services Regulation 82, and if the officeris unwilling to retire, the Head of the Department shall inform theofficer that such a recommendation is being made and call upon theofficer to submit a statement of his reasons for wishing to remain inservice for submission to the Public Services Commission along with theHead of the Department’s recommendation. ”
These Regulations remained in force until 1946. In that year the CeylonConstitution Order-in-Council, 1946, (which ultimately replaced the 1931Order) provided in Article 60. that the appointment, dismissal, discipli-nary control, etc. of public officers is vested in the Governor acting on therecommendation of the Public Services Commission, and Article 61 ofthis Order-in-Council provided as follows : —
“ (1) The Governor, acting on the recommendation of the PublicServices Commission, may make regulations for all or any of thefollowing matters :—
(a) the exercise by the Commission of any of their functions ;
{b) the delegation to the Commission, or to any public officeracting with or without the recommendation of the Commission,subject to such conditions as may be prescribed by the regulations,of any of the powers vested in the Governor by subsection (1) ofsection 60 of this Order. ”
Under the heading of “ Transitional Provisions ”, the same Order-in-Council had an Article 87 which empowered the Governor to modify,add to or adapt “ the provisions of any general order, financial regulation,public service regulation or other administrative regulation or order, orotherwise for bringing the provisions of any such administrative regula-tion or order into accord with the the provisions of this Order or forgiving effect thereto Article 87 (2) read as follows :—
“ Every regulation made under subsection (1) of this section shallhave effect until it is amended, revoked or replaced by the appropriateMinister or authority under this Order. ”
By virtue of the powers vested in the Governor by Article 87 thefollowing notification was published in the Gazette of 22nd September1947 :—
“ …. the Administrative Regulations of the Government
of Ceylon are by this Regulation modified, added to and adapted witheffect from, the date of the first meeting of the House of Representatives,to read as set out in the Schedule. ”
H. X. G. FERXAXDO, J.—De Zoysa v. The Public Service Commission 497
In the Schedule to this E”otifi cation are set out the earlier Regulationsas modified, added to and adapted in four sections :I. The Public
Service Commission, U. Appointments and Transfers, ITT. Disciplineand JLV. Retirements. The Regulations 62 and 63 now relied on by thepetitioner are in Section IV of the Schedule ; the gist of them I havenoted above.
In support of his contention that these regulations had the force of law,counsel had first to establish that the corresponding regulations previ-ously in force under the State Council Order-in-Council had themselvesthe force of law. It will he seen that Article 87 of the 1946 Order-in -Council which provided for the adaptation and modification of generalorders, regulations, etc., does not expressly declare, as does for exampleArticle 72 or Article 8S of the same Order-in-Council, that the regulationsas modified and adapted ** shall have effect as if enacted in this Order ”or “ shall have the force of law **. Counsel had therefore necessarily toconcede that in the case of Financial Regulations modified and adaptedunder Article 87 they would not have the force of law because, not havingthe force of law before, they could not acquire the force of law byreason of adaptation or modification under Article 87. Similarly it hadalso to be conceded that the Public Service Commission Regulations soadapted and modified In 1947 would only have the same ** legal status ”as they previously had. But in their case it was argued that they didhave the force of law in 1931 and retained that force when adapted andmodified under Article 87.
Let me first state my opinion that the 1931 Regulations were not lawand were only directions and instructions which public officers werebound to follow, not because they were an “ enactment ”, but becausenon-compliance would expose them to the peril of disciplinary action.The rules as to retirement in the 1931 Regulations as also in the 1947Regulations and in the current Rules constituted but a small and un-important section of the set of regulations. Far more important werethose dealing with appointments, discipline and dismissals. The 1931Regulations relating to appointments provided that certain appointmentswere subject to the approval of the Secretary of State, while the discipli-nary regulations provided that in some instances the final confirmingauthority was the Secretary of State. The Regulations were, I feel sure,substantially in conformity with similar regulations obtaining in colonialand semi-colonial dependencies of the British Empire, as also with similarregulations obtaining at the time in India. When Article 86 of the 1931Order-in-Council vested control of the Public Service Commission in theGovernor subject to instructions from the Secretary of State, no legalrights were in my opinion thereby conferred on public officers. If forinstance the procedure prescribed for the appointment to a particularpublic office requiring the approval of the Secretary of State was notfollowed, nevertheless if the appointment was in fact approved by theSecretary of State, it surely could not have been contended in a Court oflaw that the appointment was invalid. Similarly if an order of dismissal
498 H. N. G. FERNANDO, J.—£>e Zoysa v. The Public Service Commission
made by an officer in Ceylon competent under the regulations to make itwas in fact confirmed by the Secretary of State, could it have been con-tended that the order was invalid for failure to comply with the requisiteprocedure ?
A similar question arose in India in three cases which cast lighton the legal effect of regulations such as these. Section 96 (B) of theGovernment of India Act 1919, provided as follows :—
“ (1) Subject to the provisions of this Act and of the rules madethereunder, every person in the Civil Service of the Crown in Indiaholds office during His Majesty’s pleasure, and may be employed inany manner required by a proper authority within the scope of hisduty, but no person in that service may be dismissed by any authoritysubordinate to that by which he was appointed, and the Secretaryof State in Council may (except so far as he may provide by rules tothe contrary) reinstate any person in that service who has beendismissed.
“ (2) The Secretary of State in Council may make rules for regulatingthe classification of the Civil Services in India, the methods of theirrecruitment, their conditions of service, pay and allowances, anddiscipline and conduct. ”
Rule 14 of the rules referred to in subsection (2) provided inter aliathat an order of dismissal should be preceded by a properly recordeddepartmental inquiry at which charges must be framed and explained tothe accused, evidence in support and evidence in defence must be re-corded, and a finding recorded on each charge after discussion of theevidence.
In the case of Vankata Rao v. Secretary of State 1 two Courts in Indiaand thereafter the Privy Council held that “ the procedure prescribedby the rule was not followed at all ” prior to the dismissal of theofficer concerned. In an action by the dismissed officer in which he hadclaimed damages for wrongful dismissal, their Lordships of the PrivyCouncil examined the effect of the rules. Referring to the words in thesection 96 (B) “ subject to the rules made thereunder ” they regarded theterms of the section as containing a “ statutory and solemn assurancethat the tenure of office, though at pleasure, would not be subject tocapricious and arbitrary action but will be regulated by rule”. Theyheld that section 96 (B) in express terms stated that office is held duringpleasure; and that this was an express term of the contract of employ-ment ; and they rejected the argument that the rules constituted anadded contractual term that the rules are to be observed. One reason forthis view was that “ the rules are manifold in number and most minutein particularity and are all capable of change ”. If indeed the rule inquestion did have the force of law in the same way as did section 96 (B)
11937 A. I. R. (R.C.) 31.
H. N. G. FERNANDO, J.—De Zoysa v. The Public Service Commission 499
itself, there appears to me to be no reason why the rule should not,equally with section 96 (B), have been regarded as an additional termof the contract of employment.
In Rangachari v. Secretary of State1, decided by the same Board, a sub-inspector of Police who had been, dismissed sued apparently for a dec-laration that he was entitled to a pension despite an order of dismissalfrom the Public Service. One of the grounds for questioning the validityof the order of dismissal was that the order had been made by an officiallower in rank than the person who had appointed the sub-inspector.The Privy Council held inter alia that the dismissal was by reason of itsorigin, bad and inoperative. Referring to the express provision insection 96 (B) (1) that “ no person may be dismissed by an authoritysubordinate to that by which he was appointed ”, their Lordships stated" It is manifest that the stipulation or proviso as to dismissal is itself ofstatutory force and stands on a footing quite other than any matters ofrule which are of infinite variety and can be changed from time to time.It is plainly necessary that this statutory safeguard should be observedwith the utmost care and that a deprivation of pension based upon a dis-missal purporting to be made by an official who is prohibited by statutefrom maldng it rests upon an illegal and improper foundation.” Whilethe dismissal was held to be unlawful, it was only because of the peculiarcircumstances of the case that their Lordships decided not to exercisetheir discretionary power to make the declaration sought for by thedismissed officer.
The decision in Rangachari1 s case establishes that their Lordshipsdrew a distinction between the legal effect of the statutory provisionwhich had been breached in that case and a mere rule, the breach of whichwas relied on in the first mentioned case. The distinction is well empha-sized in the High Commissioner for India v. Lall2. The relevant statutein this case was the Government of India Act 1935, section 240. Subsec-tions (1) and (2) correspond to the provisions reproduced above fromthe 1919 Act, but subsection (3) provided that “ no person shall be dis-missed until he has been given a reasonable opportunity of showingcause against the action proposed to be taken in regard to him ”. ThePrivy Council (in an action by the dismissed officer for a declarationthat the order of dismissal was ultra vires and that he was still a memberof the Indian Civil Service) was satisfied that subsection (3) of section240 had not been complied with. Citing with approval the passage fromthe judgment in Rangachari1 s case which I have cited above, their Lord-ships had no' difficulty in holding that “ the provisions as to a reasonableopportunity of showing ca/use against the action proposed (i.e. subsection
) is now put on the same footing as the provision now in subsection (2),and that it is no longer resting on rules alterable from time to time but ismandatory and necessarily qualifies the right of the Crown recognised insubsection (1) ”. They regarded subsections (2) and (3) of section 240 asprohibitory in form and not merely permissive. It is to be noted that
1 1937 A. I. R. (P. C.) 27.
2 1948 A. I. R. (P. C.) 121.
500 H. N. G-. FERNANDO, J.—De Zoysa v. The Public Service Commission
rales providing for an inquiry similar to the rules to that effect earlier inforce, still existed at this time ; hut the approval of the two earlier de-cisions of 1937 satisfies me that, if section 240 had not contained the ex-press statutory provision for showing cause which subsection (3) didcontain, their Lordships would not have held as they actually did that theorder of dismissal was void and inoperative. The mere rule itself wouldnot have entitled the officer in that case to the declaration to that effectwhich was granted by the Privy Council, and that simply for the reasonthat the rule had not the force of law.
Counsel for the petitioner has sought to distinguish the three Tndiancases on the ground, in that of Vankata JRao, that the action was forbreach of contract, and in the other two cases on the ground that theactions were for declarations that the orders of dismissal were void,whereas the present application is for a quashing by Writ of Certiorari.
I think I have impliedly stated my reasons for declining to recognise sucha distinction as valid. In LaZl’s case the Privy Council granted thedeclaration on the basis that there had been a breach of a statutoryprovision, and in Rangachari’s case the declaration was not accorded ona similar basis only for the reason that their Lordships considered thegrant of a declaration unnecessary or inappropriate in the circumstances.What Venkata Rao’s case decided was that the rule did not have the samelegal effect as a statutory provision. Indeed the Privy Council in LaU'scase (at page 152, paragraph 17) found it interesting to contrast the twoearlier decisions in one of which a statute was relied on and in the otherof which only a mere rule. Each of these decisions turned on the answerto the same question as arises for me to decide : “ Is the right to dismissa person who holds office during pleasure qualified by a provision in amandatory enactment1?”. If this question cannot be answered in theaffirmative, no Court can hold for any purpose that an order of dismissalis illegal on the ground of a breach of the provision.
Where a statute confers power on some competent authority to makerules for a particular purpose and the rule is not inconsistent with thestatute itself, then if the intention of the Legislature is that the authorityshould be a subordinate law-making body the rule has the same forceof law as the statute itself. If the Secretary of State who made the ruleinvoked in Venkata Jiao’s case was a subordinate law-making body inthis sense, then in my opinion his rules had the force of law and by virtuethereof constituted a term of the contract of employment just as muchas subsection (1) of section 96 (B) did. The decision in that case to theeffect that the rule did not form a term of the contract can only beconstrued as meaning that its maker the Secretary of State was notempowered to make law. The Regulations made for Ceylon in 1931were not a mandatory enactment, and their modification and adaptationby the Governor in 1947 did not convert them into such an enactment.For the same reasons, I must hold that the present Rules issued by thePublic Service Commission are not a mandatory enactment qualifyingthe right of dismissal involved in section 57 of the Constitution.
Thenuwara v. Thenuwara
501
Having reached this conclusion, it is scarce^ necessary to considerthe more general proposition that, if an officer holding office duringpleasure is compulsorily retired without regard to the principle of naturaljustice that lie be first heard on his own behalf, tliis Court is entitled toquash the order of retirement. I -do not agree that natural justice wouldrequire such a hearing before an officer is retired under the RetirementRules. But even if I did so agree, the decision in Venkata Jiao’s case,where there had been a flagrant breach of a rule which ideally embodiedthe same principle, confirms me in the opinion that the propositionis untenable. Nor is it necessary for mo to rely on the decision ofGratiaen, J. in Wijesundera v. Public Service Commission 1.
Having regard to certain of the allegations made by the petitioner,some relevant and some not clearly irrelevant, which have not beencontradicted, the petitioner appears to have good ground for his beliefthat the Retirement Rules were utilized in liis case for a purpose whichthey were not intended to serve and in a manner not contemplated bythe Public Service Commission Rules. While I refuse the application,I am not disposed to make an order for costs in favour of the respondents.
Application refused.