CA
Sri Lanka Administrative Service Association Vs.
Kumar Abesinghe and Others
337
SRI LANKA ADMINISTRATIVE SERVICE ASSOCIATIONvs.
KUMAR ABEYSINGHE AND OTHERSCOURT OF APPEAL.
SRISKANDARAJAH. J.
CA 1229/2003.
MAY 10,2006.
Constitution-Article 52(2) – Article 55-17th Amendment – Appointment of PublicOfficers by the Public Service Commission – Does covering up duties comewithin the meaning of appointments?
The 4th respondent who was holding the post of Postmaster General (PMG)was appointed by the 1st respondent Secretary to the Ministry of MassCommunication to cover up duties in the post of Additional Secretary to thesaid Ministry.
The petitioner contends that prior to the 17th amendment to the Constitution,Additional Secretaries were appointed by the Cabinet of Ministers, but underthe 17th Amendment the appointment of public officers, other than the Headsof Department is a matter for the Public Service Commission (PSC), andtherefore the 1st respondent does not have the power to appoint the 4threspondent to cover up duties of the post of Additional Secretary.
HELD:
The 1st respondent under his supervisory powers over the relevantMinistry vested under Article 52(2) had made departmental arrangementsfor the 4th respondent who was the PMG to cover up duties of the post ofAdditional Secretary to the Ministry of Mass Communication.
As this is a departmental arrangement and it is not falling within thedefinition of appointment provided in the Establishment Code, the saidletter of appointment to cover up duties issued by the 1st respondent isnot ultra vires his powers.
Appointment is not defined in the Constitution but defined in theEstablishment Code.
APPLICATION for a Writ of Certiorari.
338
Sri Lanka Law Reports
(2006) 2 Sri LR.
Cases referred to:
Abeywickrema vs. Pathirana – 1986 1 Sri LR 120 at 142
Powell vs. Cleland -1948 1KB 262 at 273
Dr. Jayampathy Wickremarathne PC with Pubuduni Wickremaratne forpetitioners
A. Gnanathasan DSG for Respondent.
Cur.adv.vult.
June 27th, 2006.
SRIKANDARAJAHJ.
The 1st Petitioner in this application is the Sri Lanka AdministrativeService Association, the 2nd Petitioner is the President and the 3rd and4h Petitioners are office bearers of the said association. The 4th Repondentwho was holding the post of Postmaster General has been appointed bythe 1 st Respondent the Secretary to the Ministry of Mass Communicationby his letter of 11.07.2003 (P2) to cover up duties in the post of AdditionalSecretary to the Ministry of Mass Communication.
The Petitioners submitted that prior to the 17th amendment to theConstitution, Additional Secretaties of Ministries were appointed by theCabinet of Ministers. Under the 17th amendment, the appointment of publicofficers, other than Heads of Department is a matter for the Public ServiceCommission. Heads of Department are appointed by the Cabinet ofMinisters after ascertaining the views of the Public Service Commission.The Petitioners contend that the power to make appointed to the post ofAdditional Secretary of the Ministry of Mass Communication is now vestedwith the Public Service Commission and therefore the 1st Respondentdoes not have the power to appoint the 4th Respondent to cover up dutiesof the post of Additional Secretary. The said appointment of the 4thRespondent contained in letter dated 11.07.2003 is arbitrary, illegal, nulland void and it has to be quashed.
The Respondents contend that the appointment of the 4th Respondentto “cover up duties” does not come within the meaning of “appointment”in Article 55 of the Constitution. The word “appointment" is not defined inthe Constitution. The Establishment Code in Chap 1.1 defines theappointment as follows: “Appointment” means the conferment of any paid
CA
Sri Lanka Administrative Service Association Vs.Kumar Abesinghe and others (Sriskandarajah, J.)
339
office in the Public Service, whether subject or not subject to subsequentconfirmation, either as a first appointment of a person not already in thePublic Service, or a subsequent appointment, or a promotion, or transferinvolving an increase of salary or any change in status (e. g. the grant oftemporary or permanent status to a casual officer, or permanent status toa temporary officer) in respect of a person in the Public Service.
The Respondents contend that the assignment of the 4th Respondentto “cover up duties” of the Additional Secretary of the Ministry of MassCommunication does not fall within the above definition since it does notinvolve any increase of salary or a change of status. In the absence of adefinition to the word “appointment” in the constitution, the definition givento this word in the Establishment Code must be adopted to ascertain themeaning of the word “Appointment" in the context of Article 55 of theConstitution. In Abeywickrema vs.Pathirana<1> at 142 it was observed bySharvananda C. J. (as he then was) that the Establishment Code hasstatututory force. In Powell vs. Cleland(2> at 273 Evershed L. J. said, “It isa rule of interpretation of statutes that it is permissible to call in aid for theconstruction of words or phrases used in one Act, meanings given to themin an earlier Act in pari materia”. The Respondent submitted that theappointment to cover up duties does not fall within the definition of“appointment" therefore the cover up duties does not fall within the purviewof the Public Service Commission. The 1st Respondent acting in theexercise of the supervisory powers vested in him in terms of Article 52(2)of the Constitution directed the 4th Respondent to cover up the duties ofthe Additional Secretary.
Chapter II of the Establishment Code provides in 13:7 :
“No additional remuneration is payable unless an officer has beenappointed by the appointing Authority to act in the post or to attend to theduties of a post. Any Departmental arrangements to cover up the duties ofa vacant post will not entitle the officer covering up duties, to additionalremuneration.”
The above provision deals with three situations one is that of an “actingappointment” the second is to “attend to the duties” of a post, for thesetwo situations the officers have to be appointed by the appointing authoritybut in the third situation i.e. to “cover up duties” no appointment is necessaryby an appointing authority but it is only a departmental arrangement.
As the Post of Additional Secretary of the Ministry of MassCommunication fell vacant on 07.05.2003, the 4th Respondent who was
340
Sri Lanka Law Reports
(2006) 2 Sri L. R.
the most senior Class I officer of the Sri Lanka Administrative Serviceworking in the Department falling within the purview of the Ministry ofMass Communication was appointed to “cover up duties" of the post ofAdditional Secretary of the said Ministry by the 1 st Repondent. The 4thRespondent was covering up this duty in addition to his duties of PostMaster General (1R1). This arrangement was made by the 1 st Respondentacting in terms of Chapter II Section 13 of the Establishments Code.Subsequently the 1st Respondent made arrangments for the 4thRespondent to “cover up duties” of the Additional Secretary of the saidMinistry on a full time basis by his letter dated 11.07.2003 to preventadministrative difficulties as there was a delay in making the appointmentto the post of Additional Secretary. The salary scales of the post of PostMaster General and the Additional Secretary of the Ministry of MassCommunication are the same and the 4th Respondent has not been paidany additional allowance. In view of this arrangement the 1 st Respondentin the public interest and for the due administration and prompt and efficientdischarge of the functions of the office of Postmaster General appointedMr. K. A. S. Senadhira to cover up the duties of the post of Post MasterGeneral under the full supervision of the 1 st Respondent until further orders.
The 1st Respondent under his supervisory powers over the relevantMinistry vested under Article 52(2) of the Constitution had madedepartmental arrangement for the 4th Respondent who was holding thePost of Postmaster General to cover up duties of the post of AdditionalSecretary to the Ministry of Mass Communication by his letter dated11.07.2003 (P2). As this is a departmental arrangement and it is not fallingwithin the definition of appointment provided in the Establishment Code,the said letter of appointment to cover up duties issued by the 1stRespondent is not ultra vires the powers of the 1 st Respondent, as the 4thRespondent is the most senior Class I officer of the Sri Lanka AdministrativeService other than the Secretary of the Ministry of Mass Communicationserving in a department coming under the said Ministry, appointing him tocover up the duties of the post of Additional Secretary of the said Ministrycannot be considered as arbitrary or unreasonable. In these circumstancesthe Court is not inclined to quash the decision contained in the lettermarked P2. Therefore this application is dismissed without costs.
Application dismissed.
