538Sri t.unka Law Reports(I9H2) 2 S.L.R.
WIMALARATNE. J.. RATWATTE, J.. AND SOZA. JS C 1/82
C.A. APPLICATION NO. 223/81JUNE 15. 1982
Constitution – Article IN – Scheduled public officer – Necessity for appointmentby Judicial Service Commission.
The petitioner-appellant was an officer in Class 1 of the General Clerical Serviceemployed as a Clerk in the District Court of Colombo. He was transferred byan order of the Director of Combined Services to the Metereology Departmentwith effect from 1.1.81 because he was found to be unsuitable for employmentin the Courts.
The petitioner-appellant made application to the Court of Appeal to quash theorder by Writ of Certiorari on the grounds that he was a scheduled public officerby reason of the fact that he was employed in the District Court before theConstitution of 1978 came into force and therefore only the Judicial ServiceCommission could transfer him and that too only to another Court.
'Scheduled public officer- is defined in Article 114(b). This definition included aclass ol* officers which was specified in the Fifth Schedule. Generally Clerks andTypists etc. working in the Courts were specified in the Fifth- Schedule. Allappointments, transfers.- dismissals etc. of scheduled public officers were effectedby the Judicial Service Commission.
(!) That in the absence of an appointment by the Judicial Service Commissionthe petitioner-appellant could not become a scheduled public officer.
(2) That the Director of Combined Services had the power to transfer thepetitioner-appellant to -a post in the Combined Services.
Cases referred to:
Kodeeswaran v. Attorney-General (IQ09) 72 N.L.R. 337
Reilly v. The King (1934) A C. 176, 180APPEAL from judgment of the Court of Appeal.
V.S.A. Pullenayagam with Fair Mustapha, Mangalan Kanapathipillai and DeepaliWijesundera for petitioner-appellant
Sarath Silva, D.S.G. with Kalinga Wijewardena, S.C. for respondent-respondent.
Cur. ad v. vult.
Siriinif;ii v. Jayimnjihc (Wimuhiruiiu-. ./ )
July S. 1982.
Immediately before the commencement of the Constitution of theDemocratic Socialist Republic of Sri Lanka (7.9.78) . thepetitioner-appellant, Palitha Sirinaga, was an officer in Class I of theGeneral Clerical Service (G.C.S.) employed as a clerk in the DistrictCourt of Colombo. He was so employed until he was transferred tothe Department of Metereology by order of the Director of CombinedServices, the respondent, with effect front 1.1.81. The transfer hadbeen ordered at the request of the Judicial Service Commission(J.S.C.) which had found the petitioner unsuitable for employmentin the Courts.
The appointment, transfer, dismissal and disciplinary control ofpublic officers, other than those public officers appointed by thePresident of the Republic of Sri Lanka, is vested by Article 55(1)of the Constitution in the Cabine^ of Ministers. The Cabinet isempowered by Article 55(3) to delegate such powers, except in thecase of Heads of Departments, to the Public Service Commission(P.S.C.); and the, P.S.C. is in turn empowered bv Article 58(1) todelegate such powers in respect of any category of public officers toa public officer. The Director of Combined Services is the publicofficer to whom the P.S.C. has delegated such powers over non-staffofficers of the General Clerical Ser.ice. Putilic Administration CircularNo.130 dated 18.10,78 issued on the.orders of the Cabinet is therelevant document of delegation.
The Constitution of 1978 also created a category of public officersto be known as “scheduled public officers", and by Article 114(1)vested the appointment, transfer, dismissal and disciplinary controlof this category in the J.S.C. Article 114(6) defines “scheduled publicofficer” to mean “.the, Registrar of the Supreme Court. The Registrar,of the Court of Appeal, the Registrar of any Court of First Instance,or ariy public officer employed in the Registry of the Supreme Court,the Court of Appeal, or any Court of First Instance, included in acategory in the Fifth Schedule, or in such other categories as maybe specified by Order made by the Minister in'charge of the subjectof Justice, and approved by Parliament, and published in the Gazette”.
. The Fifth Schedule includes C|erks, Fiscals, Interpreters, Stenographers,Typists and Binders. Family Counsellors have subsequently beenadded. There could be no doubt that the flamers of the'O^stftutionintended creating a closed service of those administrative and other
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officers employed in the Courts who are required to carry out judicialorders.
The petitioner challenged the respondent’s power to transfer him,and sought to have the transfer quashed by way of certiorari in theCourt of Appeal. He challenged the order on the ground that byreason of being “employed” in the District Court of Colomboimmediately before the commencement of the Cbnstitution he wasa “scheduled public officer”; that the power to transfer him is vestedin the J.S.C.; and that' the J.S.C. is empowered to transfer him onlyto*a post which could be held by a scheduled public officer, that is,to a post in any of the Courts included in the definition clause inArticle 114(6).
The respondent made and filed an affidavit in which he took upthe position that as the petitioner had not been appointed by the
J.S.C., the petitioner was not a scheduled public officer; and thathe, as the authority empowered to transfer non-staff officers in the
C.S. lawfully transferred the petitioner to a post in the public service.
Although the Supreme Court is vested with the sole and exclusivejurisdiction to hear and determine' any question relating to theinterpretation of the Constitution, the Court of Appeal did not referto the Supreme Court the questions which arose for determination.Instead the Court of Appeal determined that by reason of being“employed” in the District Court the petitioner was a “scheduledpublic officer,” and that ‘appointments’ by the J.S.C. are necessaryonly in the case of officers'appointed after 7.9.78. But the Court ofAppeal dismissed the petition for the reason that there is nothingin Articles 114 which prevents the J.S.C. from releasing him to thecombined services from which he had been appointed to the DistrictCourt.
We are concerned in this appeal with only that category of publicofficers employed in the Registries of the Courts of Justice immediatelybefore the commencement of the Constitution. What is the criterionto determine whether they are “scheduled public officers”? Whilstlearned Counsel for the petitioner stressed the aspect of the fact ofbeing employed in the Courts on the crucial date as the- criterion,the learned Deputy Solicitor General argued- that appointment bythe J.S.C. is the only method by which the transformation of apublic officer to a “scheduled public officer” can take place. TheD.S.G. has thus invited us to overrule the first finding of the Courtof Appeal, namely that the petitioner was a “scheduled public officer”on the date he was transferred.
Sirinaga v. Juyttsinghc fWinutltiruinr. ./ I
When a public officer 'simpliciter' (if I may use that term) istransferred into a “scheduled public officer” there certainly is achange in his status. The authority vested with the power to transferhim, with the power to promote him. with the power to takedisciplinary action against him, and with the power to dismiss him,changes. With that change of status may ajso take place a changein the terms apd conditions of his service,. Such alteration in hisstatus and in his terms and conditions of service can take place, inmy view, only with his consent; it cannot be foisted on him withouthis consent. Therefore the accident of being “employed" in any ofthe Courts on the date of the promulgation of the Constitution cannever be a sound criterion for determining his status.
Continuity of service for public officers bn the same terms andconditions or an option to retire on pension and gratuity when thoseterms and conditions were changed has been a significant feature inall our Constitutions since Ceylon attained Dominion Status. Underthe DonoUghmore Constitution the Secretary of State for the Coloniesexercised a supreme authority over the public services of Ceylon.The. right to dismiss at pleasure was implied and recognised, and thepay and conditions of service were regulated by or under delegatedauthority from him. The Soulbury Constitution changed the masters.The Ceylon (Constitution) Order-in-Council, 1946 (Cap.379) establisheda Public Service Commission and vested in it the power of appointment,transfer, dismissal and disciplinary control of public officers. Alongwith that change it provided by Article 63(2) that certain categoriesof officers who held appointments subject to the approval of theSecretary of State would have the option to retire on pension. Whenthe Soulbury Constitution was replaced by the first RepublicanConstitution in 1972, whilst stipulating in section 107(1) that everystate officer shall hold office during the pleasure of the. President,it also provided in Chapter XV for the continuation in service ofJudges, Public officers and others under the same terms and conditions.When the present Constitution was promulgated, continuity of serviceWas provided for in a Chapter dealing with Transitional Provisions;Article 164(b) stipulates that every person who before .. thecommencement of the Constitution was in the service of the Republic,or any local authority or public corporation shall continue in suchservice under the same terms and conditions:
Here,‘then, is a Constitutional guarantee oT continuity in the publicservice under .the, same terms and conditions as before thecommencement of the Constitution;1 “Undpr'^the^Mnetiirbfns^dfi
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(1982) 2 S L R.
conditions” especially when these words occur in a written Constitutionmust necessarily have a clear meaning. 'What then are these termsand conditions? They canhot be any other than the terms andconditions of their contract of service with the State. If there hadbeen any doubt as regards the existence of a relationship whichpossessed the legal characteristics of a contract between the thenCrown and the persons appointed by the Government of Ceylon toserve in .the civil administration, such doubts were cleared by thedecision of the Privy Council in Kodeeswaran Vs. Attorney General
. Under the Order-in-Council, 1946, public servants held office(as indeed they do now) at pleasure. But, as stated by Lord Atkinin Reilly Vs. The King (2), “a power to determine a contract at willis not inconsistent with the existence of a contract until so determined".This dictum was cited with approval by Lord Diplock in Kodeeswaran(at p.341). The position is not different under the RepublicanConstitution.,
These terms and conditions attached to their contract of employmentwould be contained in documents such as the letters of appointment,the Establishment Code, Public Administration Circulars etc. issuedor published by the authority empowered by the Constitution to issueor publish them. They would necessarily encompass such terms andconditions as relate to emoluments, allowances, increments, efficiencybars, leave, interdictions, dismissals or other forms of punishment,procedure at disciplinary inquiries, prospects of promotion and a hostof other matters. The guararitee of continuity is a guarantee that thesame terms and conditions would apply. Implicit in this guaranteeis that if there is. to be a change in these terms and conditions,public officers would be given an option of either accepting the newterms or continuing under the same old terms. I am therefore ofthe view that before a public officer’s designation is altered to thatof a scheduled public officer within the'meaning of Article 114(6)his consent to the new terms and conditions is necessary. If heconsents, then he has to receive a letter of appointment from theJudicial Service Commission.
In the background of this assurance of continuity the adoption ofa criterion based upon the fact of being employed in the Courtsimmediately before the commencement of the Constitution leads toabsurd results. Let me give an illustration. By virtue of Article 169(2)the former Supreme Court ceased to exist; so did the Registry ofthe former Supreme Court. What then, would be the position ofthose public officers employed in the Registry of the former Supreme
V/rmmja v. Jayasmghe (Wimiiluraiiw. J.i
Court? In order to conform to the assurance of continuity as publicofficers they had, no doubt to be employed in one of the Courts,either established or recognised by the new Constitution. They hadno alternative but to be so employed, lest they forfeited all theirrights in the public service. But they were employed not on theterms and conditions applicable to scheduled public officers, becausesuch terms and conditions were not in existence at the commencementof the Constitution. This illustration fortifies my conclusion that byappointment alone can a public officer change his status to that»ofa scheduled public officer.
My view is alsd supported by the absence of a “deeming provision”.Deeming provisions are usually included to put beyond doubt aconstruction that might otherwise be uncertain. Whereas there arein the Constitution deeming provisions, such as that all persons whoimmediately before the commencement of the Constitution wereMembers of the National State Assembly shall be deemed to havebeen elected as Members of Parliament [Article 161(a)); and that allAttorneys-at-Law admitted and enrolled under the provisions of theAdministration of Justice Law No. 44 of 1973 shall be deemed tohave been admitted and enrolled as Attorneys-at-Law of the SupremeCourt created and established by the Constitution, [Article 169(11)].There is no such deeming provision in relation to public officersemployed in the Registries of the Courts immediately prior to thecommencement of the Constitution, to the effect that they shall bedeemed to be scheduled public officers within the meaning of Article114(6). The reason appears to me to be that the framers of theConstitution, having given all public officers the assurance of continuityunder the same terms and conditions, could not have included adeeming provision, which would necessarily have curtailed theirfreedom of contract, and would be contrary to such assurance.
I would therefore uphold the contention of the Deputy SolicitorGeneral lhat in the absence of an appointment by the Judicial ServiceCommission the petitioner-appellant was not a "scheduled publicofficer”, and that the respondent in his capacity as Director ofCombined Services had the power to transfer him to a post in theCombined Services.
This finding would suffice to dispose of this appeal. The furtherquestion as to whether a scheduled public officer could be releasedby the J.S.C. and thereafter transferred by the Director of CombinedServices would, to a large extent, depend upon the terms and
Sri l.anka Law Renorts
conditions laid down for "scheduled public officers”'. As those termsand conditions have not been brought to our notice it is not possibleto provide an answer to that question.
This appeal is accordingly dismissed with costsRATWATTE, J. – I agree..
SOZA, j. – I agree.
SIRINAGA v. JAYASINGHE