SILVA AND OTHERS vs. DIRECTOR OF HEALTH SERVICES AND OTHERS

023-SLLR-SLLR-2010-V-1-SILVA-AND-OTHERS-vs.-DIRECTOR-OF-HEALTH-SERVICES-AND-OTHERS.pdf


CA
SHva and others vs. Director of Health Services and others
285
SILVA AND OTHERS VS.DIRECTOR OF HEALTH SERVICES AND OTHERSCOURT OF APPEALSRISKANDARAJAH, J.
CA 97/2007MAY 11, 2005
Human Rights Commission of Sri Lanka Act 21 of 1996 Section 14,Section 15 (3) – Recommendations – Report of the Commission -Proprio vigour – Enforcement of Order of the Commission -Altering or amending list of duties – Scope of prerogative writs -against whom?
The Human Rights Commission recommended that the post of Pub-lic Health Inspectors (PHIs) and Public Health Field Officers (PHFOs)are in equal capacity and that in the circumstances it was appropriateto take out the supervisory duties of the PHIs over the PHFOs. Afterthis recommendation the respondent directed the relevant Heads ofDepartments to suspend the duty of the supervision of PHFOs by PHIs.The petitioners – PHIs sought to quash the said recommendation of theHuman Rights Commission.
Held
A report of the Commission does not take effect proprio vigouraccordingly certiorari will not issue to quash the report of theCommission.
There is no provision in the Act to enforce the recommendation ofthe Commission. If the Commissioner’s recommendations are notcomplied with, the Commission can only report to the Presidentand in turn it can be placed in Parliament.
The effect of the Circular is that PHFOs should not be supervisedby PHIs. The removal of supervision is an alteration in the list ofduties which was given to the PHIs, the authorities are entitled toalter or amend the list of duties at all times.
The petitioners have no claim that their duties should not bechanged or altered. The authorities are entitled to decide or
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[2010] 1 SRILR.
arrange the list of duties of the officers. The PHfs have no rightwhatsoever to supervise PHFOs. This supervisory arrangement isonly an administrative step to facilitate the smooth functioning ofthe institution.
Certiorari does not lie against a person unless he has legalauthority to determine a question affecting the rights of asubject and at the same time, has the duty to act judicially when hedetermines such question. The 1st respondent has no duty to actjudicially when he decides to remove the supervision of PHIs overthe PHFOs.
APPLICATION for a writ of certiorari/mandamus.
Cases referred to:
G. P. A. Silva and others vs. Sadique and others (1978-79-80) 1 SriLR 166 at 172, 177.
R. vs. Electricity Commissioner exp. London Electricity JointCommission Co. Ltd – 1920 – 1 KB 171
Jayawardane vs. Silva – 11 NLR 25
Upul Kumarapperuma with Suranga Munasinghe for petitioner.
Nirmalan Wigneswaran SC for 1M and 2nd respondents.
S. N. Vijitsingh for 6th respondent.
Rohan Sahabandu for added respondents.
September 23rd 2009SRISKANDARAJAH J.
The Petitioners are Public Health Inspectors (PHIs)attached to the Ministry of Health and belongs to theParamedical Service of Sri Lanka. The added Respondentsare Public Health Field Assistants and in the year 2003 theirdesignation was changed to Public Health Field Officers(PHFOs) and these officers are in Middle Level TechnicalService after 1994 the said service was renamed as Sri LankaTechnical Service.
CA
SUva and others vs. Director of Health Services and others
(Sriskandarajah J.)
287
The Petitioners submitted that all the Public HealthInspectors (PHIs) performed their duties under supervisionof the Regional Medical Officers (RMO) and Medical Officers(MO). Public Health Inspectors (PHIs) supervised theirstaff. The said staff comprised Public Health Field Officers(PHFOs), and Spray Machine Operators. The Public Health FieldOfficers (PHFOs) performed their duties under the supervisionof the Public Health Inspectors (PHIs) according to thecircular dated 23.11.1982.
The Respondents submitted that in the organizationalstructure of the Health Service under Provincial Councils,Field staff attached to the Anti Malaria and Anti FilariasisCampaigns are placed directly under the Assistant MedicalOfficers of Health, who in turn report to the Medical Officersof Health and/or the Divisional Directors of Health Services.In this structure Public Health Inspectors (PHIs) are separateand distinct category of officers who are also directly placedunder the supervision of the Assistant Medical Officersof Health. According to the Respondents, Public HealthInspectors (PHIs) and Public Health Field Officers (PHFOs)are in parallel services and perform parallel functions[in the field] of the Public Health Sector. Consequent upon theadoption into the Sri Lanka Technical Service, Public HealthField Officers (PHFOs) have their own hierarchical structurewithin the service.
e:- Public Health Field Officers (PHFOs) – SupervisoryGrade
Public Health Field Officers (PHFOs) – attachedGrade I
Public Health Field Officers (PHFOs) – attachedGrade II
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[2010] 1 SRIL.R.
The Respondents contended that at the initial point,when Public Health Field Officers (PHFOs) were mere casualemployees recruited in the capacity of "Casual Overseers’, thesupervision of the work of the said "Casual Overseers’ hadbeen entrusted to Public Health Inspectors (PHIs). Howeveran anomaly had been created by the failure to make theformal adjustment to this position by a direct circularremoving the supervisory function of Public Health Inspectors(PHIs) over the Public Health Field Officers (PHFOs), afterthe Public Health Field Officers (PHFOs) were clearly anddistinctly given independent status coming under thepurview of Assistant Medical Officers of Health.
The aforesaid issue was brought to the Human RightsCommission by the 6th Respondent and sifter deliberationthe Human Rights Commission recommended that the postof Public Health Inspectors (PHIs) and Public Health FieldOfficers (PHFOs) are in equal capacity and it was furtherrecommended that in the said circumstances it wasappropriate to take out the supervision duties of the PublicHealth Inspectors (PHIs) over the Public Health Field Officers(PHFOs). The said recommendation is marked as PI la andthe direction to implement the said recommendation markedas PI 2. After this recommendation by a circular bearingNo. 02-175/2006 dated 30.09.2006 the 1st Respondentdirected the relevant Heads of Departments to suspendthe duty of the supervision of Public Health Field Officers(PHFOs) by Public Health Inspectors (PHIs). This circular ismarked as P10.
The Petitioners in this application is seeking a writ ofcertiorari to quash the recommendation of the Human RightsCommission marked PI la and PI2 and the direction of the1st Respondent embodied in circular P10.
CA
Sdua and others vs. Director of Health Services and others
(SriskandamjahJ.)
289
Section 14 of the Human Rights Commission ofSri Lanka Act No 21 of 1996 provides that; theCommission may, on its own motion or on a complaint madeto it by an aggrieved person or group of persons or a personacting on behalf of an aggrieved person or a group of persons,investigate an allegation of the infringement or imminentinfringement of a fundamental right of such person or group ofpersons caused – (a) by executive or administrative action, or(b) as a result of an act which constitutes an offence under thePrevention of terrorism Act. No. 48 of 1979, committed by anyperson.
Section 15(3) of the said Act provides “Where an investi-gation conducted by the Commission under section 14 disclos-es the infringement or imminent infringement of a fundamentalright by executive or administrative action, or by any personreferred to in paragraph (b) of section 14, the Commission maymake such recommendations as it may think fit, to the appro-priate authority or person or persons concerned, with a view topreventing or remedying such infringement or the continuationof such infringement.’’ The recommendation marked PI laand P12 are made under the above provisions.
In G.P.A. Silva and Others v. Sadique and Others (I) at172, 177 the full bench of the Supreme Court comprisingJustice Samarawickrame J., Thamotheram J. Ismail J.Weeraratne J. and Sharvananda J came to the conclusion thatthe report of a commission does not take effect proprio vigour,accordingly, Certiorari will not issue to quash the report of thecommission. The Court held:
“It appears to be clear that certiorari will also lie wherethere is some decision, as opposed to a recommendation,which is a prescribed step in a statutory process andleads to an ultimate decision affecting rights even thoughthat decision itself does not immediately affect rights.From the citations which I have set out, it would appear
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12010} 1 SRI LR.
that a Writ of Certiorari would lie in respect of an orderor decision where such order or decision is binding ona person and it either imposes an obligation or involvescivil consequences to him or in some way alters hislegal position to his disadvantage or where such order ordecision is a step in a statutory process which wouldhave such effect.”
The recommendation of the Human Rights Commissioncontained in PI la and PI2 does not take effect proprio vigour.There is no provision in the said Act to enforce the recom-mendation of the said Commission. If the Commission’srecommendations are not complied with, the Commissioncan only report to the President and in turn it can be placedin Parliament. In view of this the recommendation of theHuman Rights Commission cannot be quashed by a writ ofCertiorari.
The Petitioners in this application has also sought a writof certiorari to quash the decision of the Director Generalof the Health Services; the 1st Respondent to implement therecommendation of the Human Rights Commission by hisCircular P10. The effect of the said circular is that the PublicHealth Field Officers (PHFOs) should not be supervised byPublic Health Inspectors (PHIs). The removal of supervisionis an alteration in the list of duties which was given to thePublic Health Inspectors (PHIs), the authorities are entitled toalter or amend the list of duties at any time. The Petitionershave no right to claim that their duties should not be changedor altered. The authorities are entitled to decide or arrangethe list of duties of its officers. If this is not permitted theadministration of an institution cannot be run smoothly. Theremoval of the supervision of the Public Health Inspectors(PHIs) over Public Health Field Officers (PHFOs) cannot beclaimed as affecting rights of the Public Health Inspectors(PHIs). The Public Health Inspectors (PHIs) have no right what
CA
Siva and others vs. Director of Health Services and others
(Sriskandamjah J.)
291
so ever to supervise the Public Health Field Officers (PHFOs).This supervisory arrangement is only an administrative stepto facilitate the smooth functioning of the institution.
Atkin L.J in R v. Electricity Commissioners exp. LondonElectricity Joint Commission Co. Ltdl2) held that the writ ofcertiorari will be issued;
"wherever any body of persons having legal authorityto determine questions affecting the rights of subjects, andhaving the duty to act judicially, acts in excess of theirlegal authority.”
Following the above legal principle the Supreme Courtheld in Jayawardene v. Silva,3) that a writ of certiorari doesnot lie to quash an detection made by the collector underSection 130 of the Customs Ordinance. Certiorari does not lieagainst a person unless he has legal authority to determinea question effecting the rights of a subject and at the sametime, has the duty to act judicially when he determines suchquestion.
In the instant case the Public Health Inspectors (PHIs)have no right what so ever to supervise the Public HealthField Officers (PHFOs) and at the same time the Director Gen-eral of Health Services the 1st Respondent has no duty to actjudicially when he decides to remove the supervision of thePublic Health Inspectors (PHIs) over the Public Health FieldOfficers (PHFOs). Therefore a writ of certiorari will not lie toquash the direction of the 1st Respondent contained in P10that the Public Health Field Officers (PHFOs) should not besupervised by Public Health Inspectors (PHIs).
For the above reasons this court dismisses theapplication without costs.
LECAMWASAM, J – I agree.
Application dismissed.