010-SLLR-SLLR-2007-V-1-SIVA-KUMAR-v.-DIRECTOR-GENERAL-SAMURDHI-AUTHORITY-OF-SRI-LANKA-AND-ANOTHE.pdf
96
Sri Lanka Law Reports
12007) 1 Sri L.R
SIVA KUMARv
DIRECTOR-GENERAL, SAMURDHI AUTHORITYOF SRI LANKA AND ANOTHER
COURT OF APPEALEKANAYAKE, J..
SRISKANDARAJAH, J.
CA 2119/2003
Writ of Mandamus – To evaluate and consider appointment to a permanentpost – Duty bound to act fairly? Obligations arising out of a contract ofemployment – Private Right? Does writ lie?
The petitioner sought a Writ of Mandamus directing the respondent to takeaction to have an evaluation and consider the petitioner to be appointed for apermanent post.
The respondent contended that, the petitioner does not have the right to theperformance of duty of a public nature.
Held:
The object of the application is to compel the performance by therespondents of certain obligations out of a contract of employmentwhich existed between the petitioner and the respondents. His claimis merely a dispute about a private right and as such a Writ ofMandamus does not lie. Such matters arising out as to contracts ofemployment are solely matters within the purview of private law andnot a matter for judicial review.
APPLICATION for a Writ of Mandamus.
Cases referred to:-
Perera v Municipal Council of Colombo – 48 NLR 66
Rodrigo v Municipal Council of Galle – 49 NLR 89
Mendis v Sima Sahitha Panadura Janatha Santhaka Pravahana Sevayaand others – 1995 – 2 Sri LR 184.
Srinath Perera PC for petitioner.
Ms. M. Fernando SSC for respondents.
Cur.adv.vult
CA
Siva Kumar v Director-General, Samurdhi Authority
of Sri Lanka and another (Chandra Ekanavake. J.)
97
January 25, 2007CHANDRA EKANAYAKE, J.
The petitioner by his amended petition dated 20.10.2004 has 01sought inter alia a mandate in the nature of writ of mandamusdirecting the respondents to take action under clause 04 of theletter of appointment by which he was appointed as “SamurdhiSanwardhana (Trainee) – [marked as P2] to have an evaluationand consider the petitioner for appointing to a permanent post witheffect from March 2001.
It was the contention of the petitioner that in terms of the letterdated 16.8.2000 (P1) he was appointed a ‘Samurdhi Niyamaka’and he assumed duties in the said post on 01. 09. 2000 in divisions 10of 1 and 2 of Rhywatta, Olugantota. Thereafter as averred inparagraph (3) of the petitioner a formal letter of appointment (P2)was issued as a ‘Samurdhi Sanwardhana Niladhari’ (trainee) by the1st respondent and by paragraph (4) of the same though it wasstated that he would be considered for confirmation as ‘SamurdhiSanwardhana Niladari’ (Grade II)' after training period of 6 monthsafter evaluation of service. However no action was taken by therespondents is terms of the said paragraph of P2 although he hadcompleted the 6 months training period by March 2001 and as hewas not appointed to the said permanent post even after a period 20of one year, he was compelled to request that he be appointed tothe above permanent post and he did so by letters marked P3, P4and P5. It was the position of the petitioner that although therespondents were duty bound to act fairly, they have failed and/ orneglected to fulfill that duty, and in the aforesaid premises he hassought the relief prayed in the present petition.
The respondents by their statement of objections whilstdenying the position taken up by the petitioner moved for adismissal of the petitioner’s application more particularly on thegrounds urged by paragraphs 6 and 7 of the same and further on 30the ground that petitioner’s application was misconceived in lawand there was no basis to issue a writ of mandamus against therespondents.
It is seen from the document marked 1R1 (Scheme ofrecruitment for the post of Samurdhi Sanwardhana Niladhari –
98
Sri Lanka Law Reports
12007] 1 Sri L.R
(Grade li) annexed to the statement of objections of therespondents, that the basic qualification of an applicant should be5 passes at the G.C.E. (Ordinary Level) Examination, and at thetime of evaluation for the permanent post of Samurdhi SanwardenaNiladari (Grade II) it was revealed that the petitioner onlypossessed passes in 4 subjects (2 simples passes and 2 creditpasses) at the G. C. E. (Ordinary Level) Examination and the samewas far below the required basic qualification as per 1R1 andtherefore the petitioner was not confirmed in the said post. Theabove position is well established by the petitioner’s applicationform for the said post (1R2 which being a Sinhala translation of theapplication form 1R1).
Further according to the minute appearing in the documentmarked 1R4 instructions had been sought in respect of thepetitioner who was a Samurdhi Sanwardhana Niladhari (Trainee)as he did not possess the minimum educational qualifications interms of 1R1. As per minute dated 23rd February appearing in1 R4it has been suggested that it would be appropriate to take steps toterminate his services as he did not possess the required minimumeducational qualifications for the post "Samurdhi SanwardanaNiladhari (Grade II)”. Thereafter by the minute dated 25th Februaryhis services had been terminated and letter dated 08. 03. 2004(1R5) had been sent to the petitioner communicating histermination. However, it is apparent from the petitioner’s letterdated 22. 03. 2004 (1R6) that he had refused to accept 1R5. Nowwhat the petitioner has sought is to compel the respondents by wayof writ of mandamus to take action to appoint the petitioner to apost as per paragraph (4) of P2.
The position taken up by the petitioner had been that therespondents statutory bodies are duty bound to act fairly, but in thepresent instance they have failed and neglected to fulfill the saidduties. Consideration of the material before Court reveals that thepetitioner does not have the right to the performance of some dutyof a public nature. In this context it would be pertinent to considerthe decision of the Supreme Court in Perera v Municipal Councilof Co/ombod) wherein it was held that; “in an application for writ ofmandamus the applicant must have the right to the performance ofsome duty of a public and not merely of a private character. In the
40
50
60
70
CA
Siva Kumar v Director-General. Samurdhi Authority
of Sri Lanka and another (Chandra Ekanavake. J.)
99
said case the petitioner who was employed as a dispensarymedical officer under the 1st respondent (The Colombo MunicipalCouncil), sought a writ of mandamus on the Council and on theLocal Government Service Commission (the 2nd respondent), tocompel them to reinstate the petitioner in the post held by him fromwhich he had been interdicted and to pay him arrears of salary fromthe date of his interdiction till reinstatement. In the course of thesaid judgment per Nagalingam. J. at 67 and 68;
“On these facts it would be manifest that the object of theapplication is to compel the performance by therespondents of certain obligations arising between thepetitioner and the respondents out of the contract ofservice entered into by the petitioner with 1 st respondent.
That the petitioner is merely an employee or a servant ofthe 1 st respondent there can be no doubt that there canbe equally little doubt that the neglect or refusal on thepart of the respondent Council to pay the petitioner hissalary in full or to reinstate him in his office is a breach ofa duty not of a public but of a private character.”
The petitioner in the present case undoubtedly has attemptedto invoke the writ jurisdiction of this Court to secure a privateremedy. Further the decision to terminate the petitioner’s servicehad been solely due to the fact that the he did not possess theminimum educational qualification required on terms of scheme ofrecruitment marked as 1R1. In those circumstances in my view nofailure of justice too has been occasioned.
The decision in the case of Rodrigo v Municipal Council ofGalld2> too would be of assistance here. It was a case where writ ofmandamus was sought by the petitioner who was a Senior RevenueInspector to give him work and to pay his salary when the respondent(Galle Municipal Council) refused to give him work and to pay hissalary after 31.10.1947. It was held by the Supreme Court.
“that a writ mandamus did not lie because thepetitioner’s office was not one which conferred on hima statutory right to the performance of his duties andfunctions and his claim to reinstatement was merely adispute about a private right.”
80
90
100
110
100
Sri Lanka Law Reports
[20071 1 Sri L.R
I am unable to distinguish the above case from the case athand for the reason that the object of the present application is alsoto compel the performance by the respondents of certainobligations arising out of employment (P2) which existed betweenthe petitioner and the respondents and his claim to performance ofclause 4 of P2 is merely a dispute about a private right, and as suchnot the subject for a writ of mandamus. Further disputes arising asto contract s of employment are solely a matter within the purviewof private law and not matter for judicial review. In the case ofMendis v Sima Sahitha Panadura Janatha Santhaka Pravahana 120Sevaya and Others <3> per S. N. Silva, J. (P/CA) [as he was then] at294;
“ The Writ of Mandamus prayed for in prayer (b)(reproduced at the beginning of this judgment) isentirely misconceived. It seeks an order from this Courtrestoring the Petitioner to the post of ManagingDirector with full pay. As noted above the Writ ofmandamus lies only to compel the discharge of astatutory duty by a public authority. What is heresought to be done is the enforcement of a contract of 130employment.”
For the foregoing reason I am of the view that the presentapplication of the petitioner has to fail and same is herebydismissed without cost.
SRISKANDARAJAH
Application dismissed.
I agree.