013-SLLR-SLLR-2003-V-3-SAMARAWEERA-v.-MINISTER-OF-PUBLIC-ADMINISTRATION.pdf
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Sri Lanka Law Reports
[2003} 3 Sri L.R
SAMARAWEERAv
MINISTER OF PUBLIC ADMINISTRATIONCOURT OF APPEALSRIPAVAN, J.
C.A. NO. 107/99MARCH 12. 19. 25, 2003
Writ of Mandamus – Duty must be of public nature not merely of a private char-acter – Administrative Regulations – Do they have the status of "Law" ? -Delay – Reasonable time – Court of Appeal (Appellate Procedure Rules) 1990.
The petitioner made an application to join the Grama Sevaka Niladari’sService, was selected in 1989 and sent for training. An application for a Writ ofCertiorari in 1996 was withdrawn to enable the petitioner to pursueAdministrative Relief, the Minister of Social Services suggested to appoint thepetitioner, backdating the appointment with effect from 1989 without back-wages. As he was not appointed he sought a Writ of Mandamus.
Held :
To be enforceable by Mandamus the duty to be performed must be ofa public nature and not merely of a private character. The letter issuedin 1989 does not prescribe any duty having statutory potential.
The previous application was withdrawn without reserving the right toinstitute this application. It would be inconsistent with the Court ofAppeal (Appellate Procedure Rules 1990) for a party to institute a sub-sequent application regarding the same matter that has been chal-lenged in a previous application.
Court has a discretion to deny the petitioner relief having regard to hisconduct and delay. "Administrative Regulations laid down in the CeylonGovernment Manual of Procedure do not have the status of 'Law' andnon-compliance with them cannot be enforced by Mandamus."
APPLICATION for a Writ of Mandamus.
Cases referred to :
De Alwis v Silva – 71 NLR 108
Biso Menika v Cyril de Alwis -1982 1 SRI LR 368 at 379.
Jayawardena and Five others v Dehiattakandiya Multi Purpose Co-operative Society Ltd, 1995 2 SRI LR 276.
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Gunasekera v Weerakoon – 73 NLR 262
Abdul Rahuman v The Mayor of Colombo – 69 NLR 211Nizam Kariappar for petitioner.
Ms. Farzana Jameel S.S.C. for respondents.
Cur.adv. vult.
April 30, 2003SRIPAVAN, J.
The petitioner who is a permanent resident of Anuradhapura 01made an application to join the Grama Sevaka Niladhari's Servicepursuant to an advertisement published in the Gazette inNovember 1987 calling for applications for vacancies in the GramaSevaka Niladhari's Service, Grade II. The petitioner stated that hewas summoned for an interview and was selected by the InterviewBoard. The Secretary, Ministry of Public Administration by his letterdated 22.9.1989 (P2) informed the Government Agent ofAnuradhapura to call the petitioner and few others for training to beappointed as Grama Sevaka Niladhari in the District of 10Anuradhapura. The petitioner alleged that he was not given anyappointment in 1989 and as such instituted this application in theyear 1999 seeking a writ of mandamus directing the 1 st respon-dent and/or 2nd respondent and/or the 3rd respondent to appointhim to the Grama Sevaka Niladhari's Service grade II effective from22.09.1989.
The Learned Senior State Counsel for the respondents stronglyobjected to the substantive relief sought by the petitioner mainly ontwo grounds, namely, laches and that the petitioner is not legallyentitled to be appointed to the post of Grama Sevaka Niladhari. 20
It appears that the petitioner filed SC. Application No.249/94(P3C) seeking, inter alia, an order directing the GovernmentAgent, Anuradhapura to act according to the letter dated 22.09.89.
The said application was dismissed by the Supreme Court on apreliminary objection raised by the Learned State Counsel appear-ing for the respondents that the petitioner's claim was time barred.Thereafter, the petitioner made an application to the Court ofAppeal in CA. Application No. 126/96 and the said application waswithdrawn on 29.3.1996 to enable the petitioner to pursue adminis-
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trative relief from the relevant authority (P4). The petitioner madean appeal to the 1st respondent through the Governor of the NorthCentral Province and the Minister. An inquiry was conducted by theAdditional Secretary to the Ministry of Public Administration inrespect of the petitioner's appeal. The petitioner stated that the thenMinister of Social Services, the member of Parliament representingthe petitioner's electorate by P8 dated 09.09.98 suggested toappoint the petitioner backdating his appointment with effect from
without backwages.
The general rule of mandamus is that it lies to secure the per-formance of which the petitioner has sufficient, legal interest. To beenforceable by mandamus, the duty to be performed must be of apublic nature and not merely of a private character. The authorityrelied on by the petitioner for his appointment was the letter markedP2 which does not prescribe any duty having statutory potential. InDe Alwis v Silva^) the Supreme Court held that the administrativeregulations laid down in the Ceylon Government Manual ofProcedure do not have the status of "law" and non-compliance withthem cannot be enforced by mandamus. Even if this Court goes bythe letter P2, it only demonstrates, that the Secretary, Ministry ofPublic Administration instructed the 3rd respondent to send thechosen candidates (including the petitioner) for training. In theabsence of any documentary proof to establish that the petitionerhas successfully completed the training programme, this Court can-not compel the respondents to appoint the petitioner to the post ofGrama Sevaka Niladhari, Grade II.
Having interviewed and selected in the year 1989, as submittedby counsel for the petitioner, the present application was filedalmost 10 years after the document P2 was sent to the 3rd respon-dent. The petitoner who is seeking a discretionary remedy of thiscourt is not entitled to relief as a matter of course. The Court has adiscretion to deny him relief having regard to his conduct and delay.It may be. appropriate to quote the observations made bySharvananda, J. (as he then was) in the case of Biso Menika v Cyrilde AlwisW.
'What is reasonable time and what will constitute undue
delay will depend upon the facts of each particular case.
However the time lag that can be explained does not
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spell laches or delay. If the delay can be reasonablyexplained, the Court will not decline to interfere. Thedelay which a court can excuse is one which is caused ?oby the applicant pursuing a legal remedy and not a rem-edy which is extralegal. One satisfactory way to explainthe delay is for the petitioner to show that he has beenseeking relief elsewhere in a manner provided by thelaw."
The petitioner having withdrawn C.A.Application No. 126/96,sought administrative relief not in a manner provided by law. Therelief sought by the petitioner was extra legal and this Court cannotexcuse him for making this application almost three years afterwithdrawing the said C.A. Application No. 126/96. In any event, the 80previous application No. 126/96 was withdrawn without reservingthe right to institute this application. It would be inconsistent withthe Court of Appeal (Appellate procedure Rules of 1990) for a partyto institute a subsequent application regarding the same matter thathas been challenged in a previous application. “Vide Jayawardenaand Five others v Dehiattakandiya Multi Purpose Co-operativeSociety Ltd®)”. On this ground too, the petitioner's application fails.
When a petitioner applied for a Writ of Certiorari and Mandamusto enhance the compensation awarded to him 07 months earlier byan Acquiring Officer under the Land Acquisition Act, the Supreme 90Court refused the application on one of the grounds, namely, thatthe petitioner was guilty of undue delay in making the application.
Vide Gunasekera v Weerakooni4). In the case of Abdul Rahuman vThe Mayor of Colombo(5> Sansoni CJ. refused an application for aWrit of Mandamus on the ground of delay.
For the aforesaid reasons, I dismiss the petitioner's applicationwithout costs.
Application dismissed.