THE ATTORNEY-GENERAL, Appellant, and C. KODESWARAN, Respondent

031-NLR-NLR-V-70-THE-ATTORNEY-GENERAL-Appellant-and-C.-KODESWARAN-Respondent.pdf


The Attorney-General v. Kodeswaran
121
1967Present: H. N. G. Fernando, C.J., and G. P. A. Silva, J.THE ATTORNEY-GENERAL, Appellant, andKODESWARAN, RespondentS. C. 408164—D. C. Colombo, 1026jZ
Public servant—Contract of employment with the Crown—Claim for arrears of pay—Unenforceability by action in the Courts—Relationship between the Crown andits servants—Inapplicability of Roman-Dutch Law—Applicability of EnglishLaw as altered or modified in Ceylon—Right of action when a public servant'sterms of engagement are laid down by statute—Treasury Circular issued undercompulsion of Official Language Act, No. 33 of 1056—Is it valid ?—Ceylon{Constitution) Order in Council, 1946 (Cap. 379), ss. 29, 46, 51, 57, 58, 60,61.
A public servant in Ceylon has no right of redress by action in the Courts fora breach of any of the covenants and rules governing the salaries and conditionsof service of public officers. This principle is operative except in respect ofterms laid down by statute, and is unaffected, either expressly or by implica-tion, by the provisions of the Ceylon Constitution.
“ The right to sue the Crown in Ceylon upon a contract is not founded onRoman-Dutch Law. Accordingly, even if it be the case that the ancient lawsof the United Provinces entitled a public officer to sue the Government upon acontract of employment under the Government, those laws did not, and do notnow, apply to Ceylon. It follows that the question whether the plaintiff inthe present case has a right to sue the Attorney-General must be determinedunder the English law as altered or modified by the laws of Ceylon. ”
Plaintiff, who was appointed an officer of the General Clerical Service on1st November 1952, was promoted on 1st October 1959 to the Executive ClericalClass on the results of a competitive examination, in which Sinhala or, in thealternative, Tamil was a compulsory subject. The plaintiff, who is Tamilby race, chose Tamil as his language subject. According to the Minutes appli-cable, the salary scales, cadre, and conditions of service were liable to alterationfrom time to time. On 4th Novembor 1961, a now Treasury Circular No. 560provided, on pain of suspension of increment falling due, that officers of thecategory to which the plaintiff belonged must pass a proficiency te3t in Sinhala.
The plaintiff did not present himself for the requisite examination, and thesuspension of the increment which fell due on 1st April 1962 was ordered.He sought in the present action a declaration that the Treasury CircularNo. 560 of 4th November 1961 was unreasonable and/or illegal and not bindingon him, and that he was entitled to the payment of the increment. It wascontended that the Circular was issued under the compulsion of the OfficialLanguage Act No. 33 of 1956 and that, inasmuch as the latter Act was ultravires because it transgressed the prohibitions against discrimination containedin Section 29 of the Constitution, the Circular too was invalid.
Held, that the provisions of the covenants and rules governing the publicservice are not enforceable by action. This principle must apply to all suchprovisions, including those which prescribe rates of pay and increments, andit denied to the present plaintiff a right to sue for the increment alleged to bedue to him under the Minutes. It was not necessary to consider the submissionsas to the invalidity of the Official Language Act, because the plaintiff was notentitled to a remedy in the Courts for any alleged default in the payment tohim of the increment, even if the relevant minutes and regulations providedfor such a payment.
LXX—6
1*H 0788—2,100 (12/87)
122 H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeswaran
.A.PPEAL from a judgment of the District Court, Colombo.
Walter Jayawardena, Q.C., Acting Attorney-General, with H. Dehera-goda, Senior Crown Counsel, and H. L. de Silva, Crown Counsel, for theDefendant-Appellant.
C. Ranganathan, Q.C., with S. Sharvananda, S.C. Crossette-Thambiah,D. S. Wijeimrdene, N. Kasirajah, K. Thevarajah, M. Underwood and
A. T. Williams, for the Plaintiff-Respondent.
Cur. adv. vult.
August 30, 1967. H. N. G. Fernando, C.J.—
The plaintiff was appointed an Officer of the General Clerical Class ofthe General Clerical Service on 1st November 1952, and on 1st October1959 he was promoted to Grade II of the Executive Clerical Class of theGeneral Clerical Service on a salary scale of Rs. 1,620 to Rs. 3,780 perannum with annual increments of Rs. 120. An increment of Rs. 10 permonth fell due to the plaintiff on 1st April 1962, but on 28th April 1962he was informed by a letter P2 from the Government Agent, Kegalle(at that time the Head of the Department in which the plaintiff wasserving), that the increment had been suspended under the provisionsof a Treasury Circular No. 560 of 4th December 1961. The plaintiffsought in this action a declaration that the Circular is unreasonableand/or illegal and not binding on the plaintiff, and that the plaintiff isentitled to payment of the increment which fell due on 1st April 1962.This appeal is from the judgment of the learned District Judge grantingsuch a declaration.
At the time when the plaintiff was promoted to the Executive ClericalClass, the Minutes applicable in relation to recruitment, conditions ofservice, and salary scales were those published in the Gazette of October 1,1955. Paragraph 5 of the relevant Minute provided that appointmentsto the Executive Clerical Class will be made from among members of theGeneral Clerical Class (to which the plaintiff belonged until 1959) on theresults of a competitive examination. The regulations and syllabus forthe examination were set out in Appendix D to the Minute whichprescribed three subjects of examination, i.e.,(1) Accounts,
(2) Regulations, procedure and office system, and (3) Sinhala or Tamil.The plaintiff, who is Tamil by race, chose Tamil as his languagesubject for the examination.
Paragraph 7 of the Minute provided that Officers in Grade II of theExecutive Clerical Class must pass an examination in National Languagesprescribed in Appendix C before they proceed beyond the Efficiency Barat the stage of Rs. 3.180. Appendix C required clerks of Sinhala, Tamilor Moor parentage to pass in one language. Thus under Appendix Cthe plaintiff could have chosen Tamil as his language subject for thisexamination as well.
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeswaran 123
I must note here that the Minute clearly states that the salary scales,cadre, and conditions of service are liable to alteration from time totime.
On 4th December 1961 a new Treasury Circular Xo. 560 provided thatOfficers of the category to which the plaintiff belonged must pass aproficiency test in Sinhala. According to this Circular a Tamil officer(as the plaintiff is) is required to pass a test in Sinhala at 3rd standardlevel within one year from 1st January 1961, a test at 5th standardlevel within two years, and at J. S. C. standard within three years.
The Circular provided for suspension of an increment falling due afterFebruary 17, 1962 in a case of an officer failing the test. The plaintiffdid not present himself for the requisite examination, and the suspensionof his increment which fell due on April 1, 1962 was ordered in pursuanceof the Circular on the ground that he had not passed the first ofthe language tests prescribed in the Circular.
One of the grounds on which the plaintiff’s action was resisted by theAttorney-General is that a public servant in Ceylon has no right to suethe Crown for the recovery of wages claimed to be due for service underthe Crown. This defence, which was rejected by the learned trial Judge,raises questions of great importance and difficulty, and the Court ismuch indebted to Counsel for the full and able arguments presented atthe hearing of this appeal.
The first question to be decided is whether the relationship betweenthe Crown and its servants in Ceylon is regulated by the Roman-DutchLaw, or else by the English Law as altered or modified in its applicationin this country. The contention that the Roman Dutch Law appliesis supported by two early decisions of this Court which are reportedin Ramanathan’s Reports 1863-68.
The earlier of the two decisions (Jansz v. Tranch ellJ) was in a case inwhich the question arose whether the salary of a public servant could beseized in execution of a decree against him. The Court there stated thatit is certain, and that the Queen’s Advocate admitted, that the salary ofa public officer, when his service has been properly performed, is due tohim as a debt. The Court proceeded to consider the Roman Dutch Lawregarding the liability to seizure of the salary of a public servant, andheld that the salary was seizable, but only if other assets of the debtorwere not available to satisfy the decree, and if a Court in its discretionregarded the seizure as not being contrary to the public interest in thecircumstances of a particular case. The order ultimately made was thatthe salary of the public servant concerned was not, in the circumstances,liable to seizure.
Thus the Roman-Dutch Law was held applicable to the questionwhether the salary is seizable. But it is not clear from the Judgmenton what basis the Court thought it certain that the salary is a debt due 1
1 Ramanathan's Reports (1863-68) p. 160.
124 H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeswaran
to a public servant. There is no statement that this is a principle ofRoman-Dutch Law or else of English Law. Nevertheless, it is a fairimplication that the Crown did not in this case contend that no actionlies for the recovery of a public servant’s salary.
The later decision in Fraser's case 1 was in a suit against the Queen’sAdvocate, for the recovery of balance salary due to the plaintiff asPostmaster of Galle and as a packet agent, on the ground that he hadbeen wrongfully dismissed from those offices. The first of these officeswas held under the Ceylon Government, and the second under the Imperial(British) Government. The action was dismissed by the Supreme Courton the ground that the plaintiff held his offices during pleasure, and thathe had no right of action at all, so far as the (Ceylon) Post mastership wasconcerned, as to anything that happened after the date of his dismissal,because it had been shown that he had in fact been paid his salary up tothat date.
Nevertheless, in considering the plaintiff’s claim for his salary as theholder of an office under the Imperial Government, the Court drew adistinction between the respective rights of such an officer and of oneemployed under the Ceylon Government. The Court was of opinionthat whereas an action would not lie at all in the former case, an actionfor earned salary would lie against the Queen’s Advocate in the lattercase. The entire relevant passage in the Judgment has to be cited here :—“ We humbly consider that Her Majesty’s predecessors and HerMajesty have been graciously pleased to lay aside, as to this island,part of the prerogative of the Crown as to immunity from being sued.By proclamation of the 23rd September 1799, it was amongst otherthings published and declared that the administration of £ justice andpolice in the settlements and territories in the Island of Ceylon withtheir dependencies, shall be henceforth and during Her Majesty’spleasure exercised by all courts of jurisdiction, civil and criminal,magistrates and ministerial officers, according to the laws and institu-tions that subsisted under the ancient Government of the UnitedProvinces, subject to such deviations and alterations by any of therespective powers and authorities hereinbefore mentioned, and tosuch other deviations and alterations as shall by these present or byany future proclamation and in pursuance of the authorities confidedto us, deem it proper and beneficial for the purposes of justice, toordain and publish, or which shall or may hereafter be by lawfulauthority ordained and published.’
" Afterwards, the Ordinance No. 5 of 1835, (which was allowed andconfirmed by Her Majesty) repealed parts of the said proclamation,but expressly reserved and retained so much of it as doth publishand declare that ‘ the administration of justice and police within thesettlements then under the British dominion and known by the designa-tion of the maritime provinces should be exercised by all the courts ofjudicature, civil and criminal, according to the laws and institutionsthat subsisted under the ancient Government of the United Provinces.’
1 Ram. p. 316.
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeewaran
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“ The Ordinance of 1835, itself expressly re-enacts this, and it usesthe following words, ‘ which laws and institutions it is hereby declaredare and shall henceforth continue to be binding and administeredthrough the said maritime provinces and their dependencies, subjectnevertheless to such deviations and alterations as have been or shallhereafter by lawful authority be ordained.’
“We humbly consider that by these declarations of the royal will,Her Majesty’s subjects in this island, who had or might have any moneydue to them from the local Government for wages, for salary, for work,for materials, in short for anything due on an obligation arising out ofcontract, were permitted to retain the old right given by Roman DutchLaw to sue the advocate of the fiscal, now styled the Queen’s Advocate,for recovery of their money. And if the present plaintiff could haveshown that any money was due to him under his colonial appointmentas Galle post-master, he might have maintained this action. Hemight have done so in respect of salary due for any period duringwhich he actually served, and also in respect of the further period forwhich he, still holding the appointment de jure, was ready and willingto serve, but was prevented from serving by the wrongful act of hisemployer.”
This statement of the law of Ceylon cannot be regarded as being merelyobiter. It is clear that, if any salary earned by the plaintiff prior to thedate of his dismissal had not in fact been paid to the plaintiff, the Courtwould have given judgment for the plaintiff for the unpaid amount;this on the basis that a right to sue for salary had existed under theRoman-Dutch Law.
The general question of the right of the subject in Ceylon to sue upon acontract with the Crown was considered in the case of Jayawardena v.Queen’s Advocate1. The Court there stated that “ the right to sue theCrown in the person of the Queen’s Advocate for claims arisingex contractu has not only been upheld by the Courts of the Colony, buthas been recognised by the Legislature in several enactments ”. Referencewas thereafter made to Ordinances No. 9 of 1852, No. 7 of 1856 and No. IIof 1868, all of which contemplated the possibility of suits upon contractby private parties against the Queen’s Advocate. There followed thefollowing observations
“Under these circumstances, we think it too late, at this day, tocontest in this Court the validity of this practice. We are bound bythe previous decisions of this Court, particularly by the considereddecision of the Collective Court in the case of Fraser v. The Queen’sAdvocate. To hold at this date, for the first time, that a practice,which has so long been sanctioned by the Courts and acquiescedin by the Government, is bad in law, and cannot be sustained, wouldnecessarily create widespread confusion and inconvenience, practicallyamounting in many cases to injustice. If the precedents and decisionsupon which this Court acts are wrong, it must be left to the Court ofappeal to set us right.
1 4 S. C. Circular 77.
—H 9733 (12/67)
126
H. N. G. FERNANDO, C-J-—The Attorney-Getteral v. Kodeswaran
It was urged by the Queen’s Advocate that the practice of suingthe Crown is an attempt to impugn the royal prerogative, by virtuewhereof no suit or action can be brought against the sovereign ; andsuch, no doubt, it would be if the prerogative has not been waived inthis respect. This Court in Fraser’s case humbly expressed an opinionthat it had been so waived, and we humbly venture to share thatopinion. It should be observed that the question is, after all, onepurely of procedure. If a judgment be obtained against the Queen’sAdvocate, no execution can issue either against the Queen’s Advocatepersonally or against the Crown. See Marsh ah, p. 75 ; Thomson’sInstitutes, p. 12. A judgment in an action or suit ex contractu againstthe Queen’s Advocate gives little, if anything, more than a successfulpetition of right would do in England. It is merely, as it appears tous, a mode of procedure by which a subject is able to prefer andsubstantiate his claim against the Crown. Compliance with the claimwhen substantiated must still be, as we take it, a matter of grace.Petitions of right are now in England prosecuted as ordinary actions ;and as a matter of convenience, we see no objection to partiespreferring their claims against the Crown here in the form of a suitagainst the Queen’s Advocate.”
The learned Acting Attorney-General in his argument before ussuggested that Fraser’s case, while rightly deciding that the Crown couldbe sued upon a contract in Ceylon, was wrong in basing the decision onthe Roman-Dutch Law. He further argued on the authority in theconcluding passage cited above from Jayawardena’s case that the waiverof immunity from suit by the Crown in Ceylon consisted merely of theacknowledgment of a right to sue the Crown in lieu of the right underEnglish Law to proceed by way of a petition of right. His argument,in my opinion, gains support from the observation in J ayawardena’s casethat a suit ex contractu against the Queen’s Advocate appears to be merelya mode of procedure by which the subject is able to prefer his claim,and is thus the equivalent of the English Petition of Right.
Shortly after J ayawardena’s case, there was decided in the PrivyCouncil the case of Siman Appu v. Queen’s Advocate 1, in which it washeld that a suit upon a contract can be instituted in Ceylon against theQueen’s Advocate as representing the Crown. Their Lordships con-sidered the question whether the Roman Dutch Law entitled a subjectto sue an Officer of Government on behalf of the Government. The noteof the argument of Counsel in that appeal shows that Fraser’s case(as reported in Creasy’s Reports p. 10) and J ayawardena’s case(incorrectly cited as Fernandez v. The Queen’s Advocate) were consideredin the discussion of this matter. But their Lordships concluded theirconsideration of the question with these observations :—
“ There certainly seems no more antecedent reason why the Countsof Holland should be exempted from suit through their officers than
1 9 App. Cases p. 571.
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodesrvaran
127
existed for the exemption of the King of Scotland. And though itis very likely that whilst great potentates, like the Dukes ofBurgundy and the Kings of Spain, were Counts of Holland, it wouldnot be very safe to sue them, yet when the United Provinces becameindependent, suitors might find themselves more favourably placed. ”
“ But whatever speculations may be made upon these points theirLordships cannot advise Her Majesty that such was the Roman-Dutch Law, unless it is shewn to them that it was so. And neitherthe researches of counsel nor their own have enabled their Lordshipsto attain any certainty on the subject.”
It appears to me that the true ratio decidendi of Siman Appu’s casecan be deduced from the following passages of the judgment:—
“ That a very extensive practice of suing the Crown has sprung upis certain. In his judgment in the case of Fernando, which was decidedimmediately before the present case came under review, Cayley, C. J.,says, ‘ The practice has been recognised in many hundreds of decisions,and long acquiesced in by the Crown, and so far as I am aware, hasnot till now been called in question.’ It was recognised by thejudgment of the Court in Fraser's case, decided in the year 1868. ”
“ In Mr. Justice Thompson’s Institutes of the Laws of Ceylon,after referring to the English petition of right, he says that, the CeylonGovernment having no Chancellor, a suit against the Governmenthas been permitted, and the Queen’s Advocate is the public officerwho is sued on behalf of the Crown. He then points out that, exceptin land cases, this action gives little more than is given by the petitionof right, for no execution can issue against the Crown or against theQueen’s Advocate. ”
“ It is then certain that prior to 1868 there was such an establishedpractice of suing the Crown that the legislature took it for granted andregulated it. The same state of things must have existed prior to1856, for the Ordinance of 1868 is only a re-enactment of an earlierOrdinance of 1856. Earlier Ordinances still have been referred to,but their Lordships do not discuss them, because, though they speakof suits in which the Crown is defendant, and though it is the opinionof the Supreme Court, and is probable, that they refer to claimsex contractu, it is not clear that they do so.”
“ Whatever may be the exact origin of the practice of suing theCrown, it was doubtless established to avoid such glaring injusticeas would result from the entire inability of the subject to establishhis claims. And finding that the legislature recognised and madeprovision for such suits at least twenty-eight years ago, theirLordships hold that they are now incorporated into the law of theland.”
128
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeswaran
The reference in the first of the passages just cited to the judgment inFraser’s case shows that their Lordships relied on that case, not for theproposition that the Proclamation of 1799 (now chapter 12 of the RevisedEdition 1956) had waived the Crown’s immunity from suits upon contract,but instead only for the fact that this Court had often recognised thepractice of suing the Crown. The judgment of Cayley, C.J., inJayawardena’s case (incorrectly referred to as that of Fernando) wasrelied on in the same way.
There is accordingly the highest judicial authority, in thedecision of Siman Appu’s case in 1884, to the effect that (as stated in thehead note) : “ There is no authority for saying that the Roman Dutchlaw of Holland, which was in force in Ceylon at the date of its conquestby the British, and has not since been abrogated, empowered the subjectto sue the Government. Instead the right to sue exists because therehad been a very extensive practice of suing the Crown which wasrecognised by the Legislature and such suits are now incorporated intothe law of the land.”
The learned Acting Attorney-General has suggested certain otherconsiderations which tend to support the view that the Proclamation of1799 was not intended to make the Roman-Dutch Law applicable tothe relationship between the Crown and public servants in Ceylon. Thefirst is that the Proclamation, in referring to the Civil and CriminalJurisdiction of the Courts, was not intended to cover matters w'hichare the subject of Constitutional or public law, and that the relationshipbetween the Crown and its servants is such a matter. I do not find itnecessary to decide the point thus raised, and am content to observethat an argument which invokes the Proclamation must logically includethe proposition that even the right of dismissal at pleasure existed inCeylon by virtue of Roman-Dutch Law, and not as a principle of EnglishLaw. But I see much substance in the other suggestion that, in regardto so fundamental a matter as the relationship between the Crown andits servants (many of whom must at the time have been British by birthand race), the Proclamation could not have intended that such a matterwould be regulated otherwise than by the the law applicable in Britainand in other territories of the British Crown. The explanation givenin Thompson’s Institutes that a suit against the Government had beenpermitted of necessity and in lieu of the English petition of right, becausethe Ceylon Government had no Chancellor, is one which is in all thecircumstances most acceptable.
When this Court in Fraser's case assumed that the wages of a publicservant in Ceylon, when earned, are a debt due to him, the Court in sodoing did not consider the question whether this principle was a matterof Roman-Dutch Law or else of English law. But it is clear from thejudgment that the Court did recognize that the power to appoint publicofficers in Ceylon was a power derived from, and exercised on behalfof, the Crown ; the judgment in this connection refers to the powersof appointment granted to the Governor by his letter of appointment
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodenoaran
129
(presumably Letters Patent) and to Colonial Rules and Regulations(p. 321 Ram. 1863-68). The grant of such powers by the BritishSovereign must fairly be presumed to have been an exercise of the RoyalPrerogative under the law of England, and not to any authority of aSovereign under Roman-Dutch law ; if this were otherwise, the Courtin Fraser’s case could not have held that the power to dismiss a publicofficer at pleasure existed in Ceylon without first deciding that such apower existed in Roman-Dutch law. The efficacy or validity ofappointments made by the executive in Ceylon was therefore referableto the law of England ; and it follows in my opinion that the nature andlegal effect of the relationship constituted by such appointments hadalso to be determined by reference to English law.
Eor these reasons I would hold, applying the judgment of theirLordships of 1884, that the right to sue the Crown in Ceylon upon acontract is not founded on the Roman-Dutch Law. Accordingly, even if itbe the case that the ancient laws of the United Provinces entitled a publicofficer to sue the Government upon a contract of employment underthe Government, those laws did not, and do not now, apply in Ceylon.It follows that the question whether the plaintiff in the present case hasa right to sue the Attorney-General must be determined under theEnglish law as altered or modified by the laws of Ceylon.
The question whether under English law a Civil Servant has theright to sue for earned wages, whether by way of a petition of right orotherwise, has been referred to by Judges and text writers as one ofmuch doubt and difficulty. But the case of High Commissioner forIndia v. Fall1 is at the least a definite pronouncement on the law on thisquestion as applicable in British India. In that case Mr. Lall, who hadbeen a member of the Indian Civil Service, was dismissed from serviceby the appropriate authority, and he claimed in the action a declarationthat his removal was ultra vires, that he was still a member of the IndianCivil Service, and that as such he was entitled to all rights secured to himby the covenant rules and regulations issued from time to time by theappropriate authorities. After considering the provisions of s. 240 ofthe Government of India Act 1935, their Lordships held that there hadbeen a breach of a provision of s. 240 which required that a civil servantshall not be dismissed unless he has been given a reasonable opportunityof showing cause against the action proposed to be taken in regard to himand that the purported removal from office of Mr. Lall was void andinoperative. They accordingly granted a declaration to that effectand to the effect that Mr. Lall remained a member of the Indian CivilService at the date of the institution of his action.
Their Lordships thereafter considered a submission for Mr. Lall thathe was entitled to recover in the action his arrears of pay from the dateof the purported order of dismissal up to the date of his action. Theysaid that^“ it is unnecessary to cite authority to establish that no action
1 (1948) A. I. H. (Privy Council), p. 121.
I
130 H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodestuaran
in tort can lie against the Crown and therefore any right of action musteither be based on contract or conferred by Statute Reliance wasthen placed on a judgment of Lord Blackburn in the Scottish case ofMtdvenna v. The Admiralty 1 in which the matter had been discussed asfollows :—
“ These authorities deal only with the power of the Crown to dismissa public servant, but they appear to me to establish conclusivelycertain important points. The first is that the terms of service ofa public servant are subject to certain qualifications dictated by publicpolicy, no matter to what service the servant may belong, whether itbe naval, military or civil, and no matter what position he holds inthe service, whether exalted or humble. It is enough that the servantis a public servant, and that public policy, no matter on what groundit is based, demands the qualification. The next is that these quali-fications are to be implied in the engagement of a public servant, nomatter whether they have been referred to in the engagement or not.If these conclusions are justified by the authorities to which I havereferred, then it w’ould seem to follow that the rule based on publicpolicy which has been enforced against military servants of the Crown,and which prevents such servants suing the Crown for their pay on theassumption that their only claim is on the bounty of the Crown andnot for a contractual debt, must equally apply to every public servant(see (1920) 3 K. B. 663, 25 R. 112 and other cases there referred to).It also follows that this qualification must be read, as an impliedcondition, into every contract between the Crown and a public servant,with the effect that, in terms of their contract, they have no right totheir remuneration which can be enforced in a Civil Court of Justice,and that their only remedy under their contract lies in an appeal ofan official or political kind.”
MulvenruTs case itself concerned the question whether the salary ofa civil employee of the Admiralty could be arrested in the hands of theCommissioners of the Admiralty at the instance of a person holding adecree against the employee for the payment of a sum of money.Although the Court, including Lord Blackburn, did refer to earlierdecisions in which there had arisen the particular question whether thesalary of a civil servant is attachable, it seems clear that LordBlackburn’s own conclusion w’as based firmly on the primary propositionthat a civil servant has no right to remuneration which can be enforcedin a civil Court. After the passage I have already cited, there occur inthe judgment the following observations :—
l< It further appears to me that, if this conception of the effect ofpublic policy on the contract itself had been developed earlier, itwould have led to the same conclusions in the numerous cases towhich the Lord Ordinary has referred as were reached on different
1 {1926) S. C- 842.
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodestvaran
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and, in some cases, on somewhat unsatisfying grounds. It wouldalso have avoided the necessity for several statutory provisionsapplicable to the pay of particular services which must now beregarded as merely declaratory of the common law.”
Their Lordships in Lull's Case referred to the provisions applicable topublic servants in India prior to the Government of India Act 1935and to the relevant provisions of the Government of India Act 1919.Section 96B of that Act had declared that a civil servant " holds office
during His Majesty’s pleasure,but no person in that service
may be dismissed by any authority subordinate to that by which hewas appointed ”. Under sub-section (2) of s. 96B the Secretary ofState for India in Council had been empowered to make rules forregulating inter alia the conditions of service, pay and allowances, anddiscipline and conduct, of the Civil Services of India. One such rule hadprovided certain conditions precedent to the dismissal of a civil servantsuch as : that he must be afforded an adequate opportunity of defendinghimself, that charges should be framed and communicated to the personcharged, that a written defence must be entertained if made, and that anenquiry must be held if the person charged so desires. These provisionswere the subject of consideration in the Privy Council in 1938. In thecase of Rangachari'1 their Lordships held that the provision in s. 96B (1)itself which prohibited the dismissal of an officer by any authoritysubordinate in rank to the authority that appointed him was peremptory,and that a dismissal purporting to be made in violation of that provisionwas void and inoperative. But in Venkata Rojo's case 2 decided on thesame day, their Lordships rejected the contention that a dismissal inbreach of the rules made under s. 96B could give rise to a right of actionby the dismissed officer. Reference was made to an observation inGould's case 3 :—
“ The argument for a limited and special kind of employmentduring pleasure, but with the added contractual terms that the rulesare to be observed is too artificial and far-reaching. ”
Their Lordships regarded the terms of the section (96B (2) ) ascontaining a statutory and solemn assurance that the tenure of officethough at pleasure will not be subject to capricious or arbitrary action but
will be regulated by ruleTheir Lordships are unable as a matter
of law to hold that redress is obtainable from the Courts by action. Togive redress is the responsibility of the Executive Government. ”Accepting these propositions, the Privy Council decided in Ball's case thata public officer had no right to claim arrears of pay under his covenant,or in other words that he had no contractual right enforceable byaction.
1 (]‘J.j7) A. 1. R. (P.C.) 27.
2 Idem p. jJ.
3 (1SVH) A. C. 575.
132
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeawaran
I must note at this stage that at least until the coming into effect ofthe Ceylon State Council Order in Council, 1931, and perhaps even untilthe coming into operation of the Ceylon Constitution Order in Council1946, the position of public servants in Ceylon was regulated in a mannersimilar to that which had obtained in India under the Government ofIndia Act, 1919. Their Lordships in Venkata Rao’s case referred to thefact that s. 96B, in sub-section (5), reaffirmed the supreme authorityof the Secretary of State over the Civil Service, and relied on this factfor the opinion that rules made under that section did not confer rightsenforceable by action in the Courts. A similar supreme authority wasformerly vested in the Secretary of State for the Colonies over the publicservices of Ceylon. Lor much the greater period of British rule in Ceylon,the right to dismiss at pleasure was implied and recognised in the caseof the public service of Ceylon, and the pay and conditions of servicewere regulated by, or under delegated authority from, the Secretary ofState. Such rules and regulations, as also the Pension Minute applicableto the public service, were not statutory enactments, nor (unlike theIndian Rules after 1919) were they even made under empoweringstatutory provisions.
It is clear to me for these reasons that prior to the operation of theCeylon Constitution Order in Council, 1946, the nature of the rights ofa public servant in Ceylon was similar to that of a public servant oT India,and that upon the reasoning in the Indian decisions cited above, apublic servant in Ceylon had no right of redress by action in the Courtsfor a breach of rules and regulations prescribing the salaries and conditionsof service of public officers. It would seem to follow therefore thatthe grounds of the decision in LalVs case in particular, holding that apublic servant had no right to sue for his wages, were applicable alsoin the case of members of the public services of Ceylon.
Counsel for the plaintiff in the present appeal referred to severaldecisions of English and Australian Courts in support of his argumentthat the Scottish case of Mulvenna was wrongly decided, and thataccordingly the decision of the Privy Council in LalVs case should notbe followed. Certain of the English and Australian decisions, it wasurged, did acknowledge the right of a public servant to sue for his earnedwages. I must refer even briefly to some of these decisions.
In the case of Carey v. The Commonwealth1 the Court did hold that apublic servant did have the right to sue for earned remuneration. Butthe only precedent relied upon by the Judge in Carey's case in supportof this alleged right was the decision in Williams v. Howarth2. Thereport of this latter case, however, shows that the plea was never takenin argument that the Crown could not be sued for wages. The plea iftaken would undoubtedly have succeeded, for the suit was one for wagesclaimed by a member of the Armed Forces of Australia who had servedwith the British Imperial Forces in South Africa. The only question
1 30 Comm. L. R. 132.a (1905) A. C. 551.
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decided was whether payments made by the Imperial Governmentshould be taken into account in determining whether the plaintiff hadreceived the wages payable to him by the Australian Government. Thecase should not, I think with respect, have been regarded as authorityfor the proposition that a military or civil servant of the Crown had aright to sue for earned wages.
The c ase of Lucy v. The Commonwealth1 was much relied on by Counselfor the plaintiff in support of the alleged right to sue the Crown on acontract of employment. The plaintiff in that case had until March 1901held office in the Postal Department of South Australia. At that stagethe Department was taken over by the Commonwealth and the plaintiffwas then transferred to the Commonwealth Public Service. In 1919the plaintiff was notified that he would be retired from the CommonwealthPublic Service upon attaining the age of 65 years, and in May 1919 he wasactually so retired. The plaintiff claimed that under a South AustralianAct of 1874 he had acquired a right to retain office until death orremoval in terms of that Act and that he had been wrongfully retired atthe age of 65 years. Section 60 of the Commonwealth Public ServiceAct provided that an officer transferred to that Service will retain all theexisting and accruing rights which he had previously as a member of theSouth Australian Service, and it had been held in an earlier case that thisSection (despite inconsistent provision in section 74 of the Act) preservedto such an officer the right to remain in service after attaining the age of65 years.
In these circumstances the plaintiff claimed (a) a declaration that hehad been wrongfully removed from service on 11th March 1919, (b) adeclaration that he was entitled to retain office until his death or untilhis office was determined in accordance with the South Australian Act of1874, and (c) damages for wrongful removal or dismissal. A case statedfor the opinion of the High Court, after setting out the relevant facts,submitted the question “ whether the damages to which the plaintiff isentitled should be measured and ascertained by any one or more of thefollowing considerations ”, and thereafter invited the Court to determinewhether or not certain specified matters should be taken into account inthe assessment of damages.
Despite references in the judgments to the contract which the plaintiffhad as a member of the Public Service, it seems to me that the questionwhether a public servant had a right to sue the Crown for his wages wasnot in fact disputed in this case, for, as I have just stated, the Court wasonly invited to lay down the measure of damages as for a dismissal fromservice which was admitted to be unlawful. Indeed the note of theargument of the Counsel for the plaintiff contains this passage :—“ thedismissal of the plaintiff was a breach of his statutory right and not abreach of contract; whichever it is, if the plaintiff’s remedy is damages, the
1 33 Comm. L. R. 29.
134 H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeswaran
measure is the same I must refer however to an observation in thejudgment of Higgims J. that “ this position would be beyond question ina case of ordinary contract between employer and employee ; and in myopinion the relation between the Commonwealth and the officer is arelation of contract (cf. Williams v. Howarth) ”. Higgims J. was thesame Judge who had decided the earlier case of Carey, and I have alreadystated my opinion that he had wrongly relied on the decision inWilliams v. Howarth.
It seems to me that Lucy's case is not substantially different in principlefrom that of Rangachari decided by the Privy Council in 1937. In eachcase the plaintiff had a right of action because he had been dismissed inbreach of statutory provision, and not because he was entitled tocontractual rights.
The nature of service under the Crown in Canada was considered in thejudgment of the Privy Council in the case of Reilly v. the King1. Thesuppliant had in 1928 been appointed a member of the Federal PensionAppeal Board for a period of five years. In May 1930 the pensionstatutes were amended and in consequence the Pension Appeal Board wasabolished, and a new Tribunal established in its place. Mr. Reilly wasnot appointed to the new Tribunal, and in October 1930 he was requestedto vacate the premises which he had occupied in pursuance of his office,The following observations of Lord Atkin are important for presentpurposes :—
“ Both Courts in Canada have decided that by reason of the statutoryabolition of the office Mr. Reilly was not entitled to any remedy, butapparently on different grounds. Maclean J. concluded that therelation between the holder of a public office and the Crown was notcontractual. There never had been a contract : and the foundationof the petition failed. Orde J.’s judgment in the Supreme Court seemsto admit that the relation might be at any rate partly contractual ;but he holds that any such contract must be subject to the necessaryterm that the Crown could dismiss at pleasure. If so, there couldhave been no breach.
Their- Lordships are not prepared to accede to this view of the contract,if contract there be. If the terms of the appointment definitelyprescribe a term and expressly provide for a power to determine f forcause ’ it appears necessarily to follow that any implication of a powerto dismiss at pleasure is excluded. This appears to follow from thereasoning of the Board in Gould v. Stuart. That was not the case of apublic office, but in this connection the distinction between an officeand other service is immaterial. The contrary view to that hereexpressed would defeat the security given to numerous servants ofthe Crown in judicial and quasi-judicial and other offices throughoutthe Empire, where one of the terms of their appointment has beenexpressed to be dismissal for cause.
1 (19U) A. C. 176.
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In this particular case their Lordships do not find it necessary toexpress a final opinion on the theory accepted in the Exchequer Courtthat the relations between the Crown and the holder of a public officeare in no degree constituted by contract. They content themselveswith remarking that in some offices at least it is difficult to negativesome contractual relations, whether it be as to salary or terms ofemployment, on the one hand, and duty to serve faithfully and withreasonable care and skill on the other. And in this connection it willbe important to bear in mind that a power to determine a contractat will is not inconsistent with the existence of a contract until sodetermined.”
The dicta of Lord Atkin in Reilly’s case received careful examinationby the Supreme Court of South Africa in the case of Sachs v. Donges 1in which it was sought to equate the case of the revocation of a passportto the Crown’s right to terminate at pleasure the employment of a publicofficer. Referring to Lord Atkin’s statement that “ if the terms of theappointment definitely prescribe a term, and expressly provide for powerto determine for ‘ cause ’, it appears necessarily to follow that anyimplication of a powTer to dismiss at pleasure is excluded ”, two Judges ofthe South African Court thought it clear that Lord Atkin only contem-plated cases of appointments under a statutory power, where the statuteitself by implication excluded the prerogative right of dismissal at pleasure.Van den Heever, J.A. said in this connection :—“ Once it is establishedthat an act is the exercise of discretionary executive power not regulated
by statute cadit quaestio, the subject’s redress, if any, is
political, not judicial.” Centlivres J. expressed his disagreement withthe construction placed on Lord Atkin’s dictum in the case of Robertson v.Minister of Pensions 2 where Lord Denning had stated that “ in regard tocontracts of service, the Crown is bound by its express promises as muchas any subject ”. Let me with great respect state my own reasons fordisagreeing with that construction.
In the passage cited above, Lord Atkin first referred to a judgment inwhich Orde J. in the Canadian Supreme Court, seemed ct to admit thatthe relation might be at any rate partly contractual ; but he holds thatany such contract must be subject to the necessary term that the Crowncould dismiss at pleasure ”. Lord Atkin then expressed inability toaccede to this view of the contract, if contract there be. His subsequentstatement, that, in certain cases, “ any implication of a power to dismissat pleasure is excluded ”, is explained by his reference to the cases of“ numerous servants of the Crown in judicial and quasi-judicial and otheroffices throughout the Empire, where one of the terms of their appoint-ment has been expressed to be dismissal for cause ”. This referenceread together with the reference to Gould v. Stuart 3, indicate that LordAtkin had in mind only cases in which the power to dismiss at pleasure
1 (1950) (2) S. A. L. P. 265.* (1948) 2 A. E. R. 767.
» (1806) A. C. 575.
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H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeewaran
becomes excluded by contrary provision in a statutory power of appoint-ment. Had he intended to say that the power could be excluded bycontract, he would surely not have failed to refer to de Dohse v. Reg 1and to Dunn v. Macdonald 2, both cases in which the contrary opinionhad been strongly expressed.
In Gould v. Stuart itself, Lord Hobhouse, in delivering the judgmentof the Privy Council observed that “ servants of the Crown hold theiroffices during pleasure ; not by virtue of any special prerogative of theCrown, but because such are the terms of their engagement, as is wellunderstood throughout the public service ”. But the case itself concernedan office the tenure of which was regulated by the Civil Service Act ofNew South Wales, the provisions of which were inconsistent with thepower to dismiss at pleasure. The power of dismissal being thus excludedby statute, it was not material to decide the precise base on which thepower rested. Moreover, it is not easy to understand why an arbitrarypower of dismissal is to be implied in a contract of employment exceptupon a supposition that such a power exists aliunde. And if such a powerdoes exist, it is only the prerogative to which the power is fairly referable.With much respect, therefore, I doubt whether the dictum ofLord Hobhouse can now be regarded as authority for the propositionthat the terms of the engagement of servants of the Crown impose onthe Crown contractual obligations, the breach of which may properly bethe subject of dispute in Petitions of Right or (in Ceylon) in suits againstthe Attorney-General.
I do not consider it useful to refer to other cases cited duringthe argument, many of which were concerned with alleged wrongfuldismissals of servants of the Crown. It suffices for me that we have notbeen referred to any decision holding, despite objection directly takenon behalf of the Crown, that a Petition of Right or civil suit lies againstthe Crown to enforce the performance of the terms of the engagement ofa servant of the Crown, not being terms laid down by statute.The Ceylon decision in Fraser’s case is thus quite exceptional.
The decisions of the Privy Council in the appeals from India lay downclearly the principle that the provisions of the covenants and rulesgoverning the public service are not enforceable by action. This principlemust apply to all such provisions, including those which prescribe ratesof pay and increments, and it denies to this plaintiff a right to sue for theincrement alleged to be due to him under the Minutes.
There remains one possibility to which I must advert, namely whetherthe provisions of the Ceylon Constitution have affected the operationin Ceylon of the principle formerly applicable.
1 (1897) 66 L. J. Q. B. 422.
* (1897) 66 L. J. Q. B. 423.
H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodestoaran
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Section 57 of the Order in Council declares that (with some exceptionsnot here relevant) every person holding office under the Crown holds theoffice during Her Majesty’s pleasure. Sections 58 and 60 establish aPublic Service Commission, and vest in the Commission “ the appoint-ment, transfer, dismissal and disciplinary control of public officers ”,
e., of persons holding a paid officeas a servant of the Crown in
respect of the Government of Ceylon {vide s. 3, definition). Section 61authorises the Commission to delegate any of its powers, subject to theright of appeal to the Commission itself. Thus the powers of appoint-ment and dismissal, which were those of the Sovereign in early Englishlaw, are now exercisable by the Commission. It is not disputed that theplaintiff in this case is a public officer within the meaning of theseprovisions.
Neither in Part VII of the Order in Council, under the title ” ThePublic Service ”, nor in any other provision of the Order, is there expressstatutory declaration vesting in any specified authority the power toprescribe the salaries and conditions of service of public officers. ButPart V, which is entitled “ The Executive ”, vests in Ministers the sub-jects and functions which may be assigned to them by the Prime Minister.The subject of “ the public service ” has been so assigned to the Ministerof Finance, and I have no difficulty in assuming that the Minutes andCirculars referred to in this case, which were issued by the Secretary tothe Treasury or his Deputy, were in fact issued under the authority of theMinister of Finance. Under s. 51, the Secretary to the Treasury, who isalso the Permanent Secretary to the Ministry of Finance, exercises controlover the departments of Government in charge of his Minister and is thusthe head of the Public Service, subject only to the special powers reservedby 8. 60 to the Public Service Commission. The Minister of Finance,or his Permanent Secretary, in the exercise of their powers of control andadministration of the public service, have necessarily to adhere to deci-sions of Parliament, particularly those decisions which are incorporatedin the Appropriation Acts which appropriate funds for various publicpurposes ; they have also to adhere to decisions of the Cabinet, whichunder s. 46 of the Order in Council is charged with the general directionand control of the government of the Island. There has been no sugges-tion during the argument of this appeal that the act of the plaintiff’shead of department in withholding the plaintiff’s increment in any wayinfringes or usurps powers which under the Constitution are vested inParliament, the Cabinet, the Public Service Commission, or the Ministerof Finance. The head of department acted under the provisions of aCircular issued by an authority fully competent to issue it. I
I find nothing in the relevant provisions of the Constitution (whichhave just been examined) which can in any way be construed as alteringor affecting, either expressly or by implication, the principle that theterms of a public officer’s engagement to serve the Crown in Ceylon do notentitle him to institute a suit to recover earned wages or to enforce the
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H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodeswaran
terms of his engagement. The case of Silva v. The Attorney-General1is easily distinguishable, for we are not here concerned with anythingresembling the dismissal from service of a public officer by an authoritynot legally competent to dismiss him.
Counsel for the plaintiff argued that, although the Crown or theExecutive Government in Ceylon has a power freely to alter the terms andconditions of service prescribed in the relevant minutes in force at thetime of the plaintiff’s promotion to the Executive Clerical Class, thatpower was unlawfully exercised when the Treasury Circular No. 560 wasissued in December, 1961. The ground of this argument was that theCircular was issued for the purpose of the implementation of the OfficialLanguage Act, No. 33 of 1956. Referring to the terms of the Circularitself, and to those of a Cabinet memorandum containing directions asto the implementation of that Act, Counsel submitted that the TreasuryCircular had to be issued under the compulsion of the Act; and, relyingupon certain decisions in the United States, he further submitted thatanything done under the compulsion of an invalid statute is itself invalid,despite the fact that what is done may be valid if done in the exercise ofsome ordinary contractual right or other power.
These submissions regarding the Treasury Circular depend on Counsel’sother submission that the Official Language Act of 1956 was ultra vireson the ground that in enacting it Parliament transgressed the prohibi-tions against discrimination contained in Section 29 of the Constitution.Indeed the learned District Judge who heard the instant case has heldthe Act to be void on that ground. In considering whether this Courtshould now make any pronouncement as to the validity of the Act of 1956,I take note of the reluctance of the American and Indian Supreme Courtsto make such pronouncements. The principle is thus expressed in Cooley,Constitutional Limitations (8th Ed. p. 332) :—
“ It must be evident to anyone that the power to declare a Legis-lative Enactment void is one which the Judge, conscious of the fallibilityof the human judgment, will shrink from exercising in any case wherehe can conscientiously and with due regard to duty and official oathdecline the responsibility.”
In Burton v. United States 2 it was observed that “It is not the habtiof the Court to decide questions of a constitutional nature unlessabsolutely necessary to a decision of a case ”. Again, in Silver v. LouisVille N. R. Co. 3 the Court stated that if a case could be decided on oneof two grounds, one involving a constitutional question, and the other aquestion of statutory construction or general law, the Court will decideonly the latter. 1
1 (1958) 60 N. L. R. 145.* 196 D. S. Reports at p. 295.
* 213 U. S. Reports at p. 191.
Buyzer v. AriyarcUna
139
In the instant case, it is not even clear whether the question of thecompulsion of a statute does arise. I have already reached theconclusion that under our Law a public servant has no right to sue for hiswages. Accordingly the plaintiff is not entitled to a remedy in the Courtsfor any alleged default in the payment to him of the increment, evenif the relevant minutes and regulations had not been altered or modifiedby the Treasury Circular No. 560.
The position of the Crown here is not that there was an alteration inthe terms and conditions of service in consequence of which the plaintiffhas become disentitled to the increment. The Crown’s position is thatthe plaintiff cannot sue for the payment of the increment, even if theminutes and regulations provide for such a payment. Since such in myopinion is the correct position in law, this Court should not now ventureto rule upon the submissions as to the invalidity of the Language Act.As a note of caution I must say also that the ruling on that submissionmade by the learned District Judge in this case must not be regarded inany way as a binding decision.
We did not call upon the learned Acting Attorney-General to submithis arguments on the question of the validity of the Language Act.Instead, at the close of the hearing of this appeal, I indicated my intentionthat if our findings on the other issues arising in this case necessitateconsideration of that question, I would in exercise of my powers underSection 51 of the Courts Ordinance refer the question for the decision ofa Bench of five or more Judges. That course is not now necessary;but I should here express the firm opinion that a question of suchextraordinary importance and great difficulty, if and when it properlyarises for decision, must receive consideration by a Bench constitutedunder Section 51.
The judgment and decree of the District Court are set aside. I do notin the circumstances make any order as to the costs in the District Court,but the plaintiff must pay the costs of this appeal.
G. P. A. Silva, J.—I agree.
Judgment and decree set aside.