.Attorney General o. Abeyainghe
1975 Present: Tennekoon, C.J., Sirimane, J., and Tittawella, J.THE ATTORNEY-GENERAL, Appellant and D. W.ABEYSINGIIE, Respondent
S. C. 258/71—D, C. Colombo 2140/Z
Pension—No leg'll right to a pension—Jurisdiction of Court to granta declaration—Min.u.cs cn Pensions—Sections 1, 2 and 15—CivilProcedure Code, Section 217(G)—Ceylon Constitution arid
Independence Order-in-Council 19-15 and 1947 Section 64(2) —Republican Constitution section 103(1).
The plaintiff was a public servant who held a permanent andpensionable post in the Public Service as an apothecary in the.Department of Health. O-i 1st June 1957 a Board of Inquiryconstituted in terms of the Bribery Act. No. 11 of 1954 found theplaintiff guilty of a charge of bribery. He was dismissed from thePublic Service with effect from 1st June 1957.
On representations made by the plaintiff, the Public ServiceCommis ion, as a merciful alternative varied the Order ofdismissal to one of compulsory retirement due to inefficiency. Thedecision of the Public Service Commission was communicated tothe plaintiff by the letter of the Dirac or of Health services dated31st January 1968. Thereupon the Secretary to the Treasury, interms of sections 2 and 15 of the Minutes on Pensions, made anaward of pension whereby the plaintiff was to receive a pensioncalculated under the ordinary rules but subject to, (a) a reductionof ?0 per cent ; and (b) he commencement of the payment of hisperiodical pension only from Is.. February 1968.
The plaintiff instituted an action in the District Court praying fora declaration that he is entitled 1o be paid his full periodicalpension calculated according to the Pension Minutes for the periodcommencing 1st June 1957, which is the date on which hisretirement became effective.
Held : (Sirimane, J dissenting)
The Mmu^s cm Pensions do not create legal rights enforceable
in the Courts.
A Court has no jurisdiction to grant a declaration in respect
of a pension.
The expression “no absolute right’’ in the first sec'ion of
the Minutes on Pensions means “no legal right.” In SriLanka there is no constitutional provision or any otherprovision of written law whhh has the effect of alteringthe meaning of Section 1 of +he Minutes on Pensions.
A PPEAL from a judgment of the District Court, Colombo.
P. S. de Silva, Deputy Solicitor General, for the Defendant-Appellant.
R. S. R. Coomaraswamy, w’th C. Chakradaran, S. C. B.Walgampaya, and E. R. S R, Coomaraswamy (Jnr), for thePlain tiff-Respondent.
Cur. ado. vutL
1*—A 26926 (77/05)
IENWJKOON, 0. J.—Attorney General v. Abayeinyhe
July 2, 1975. Tennekoon, C.J.—
The plaintiff-respondent was a public servant who held apermanent and pensionable post in the Public Service as anapothecary in the Department of Health.
In April 1957 the plaintiff-respondent was arraigned by theAttorney-General on certain charges of bribery before a Boardof Inquiry constituted in terms of Bribery Act No. 11 of 1954 asit then stood. After inquiry the Board found the plaintiff-respondent guilty of one of the charges of bribery on which hewas arraigned. This was on the 1st of June, 1957. On the 17thof June, 1957, the Superintendent of Health Services informedthe plaintiff-respondent that he was dismissed from the PublicService with effect from 1st June, 1957.
On representations made by the plaintiff-respondent to thePublic Service Commission, the Commission decided, as amerciful alternative, to vary the order of dismissal to one ofcompulsory retirement due to inefficiency. The decision of thePublic Service Commission was communicated to the plaintiff-respondent by the letter of the Director of Health Services dated31st January, 1968. Following upon this the Secretary to theTreasury, in terms of Sections 2 and 15 of the Minutes on Pen-, sions, made an award of pension under which the plaintiff-respondent was to receive a pension calculated under the ordi-nary rules, but subject, (1) to reduction of 20 per cent; and (2)to the commencement of the payment of his periodical pensiononly from 1.2.1968.
The plaintiff-respondent instituted this action in the DistrictCourt of Colombo praying for a declaration that he is entitled to: be paid his full periodical pension calculated according to thePension Minutes for the period commencing 1st June, 1957,which is the date on which his retirement became effective, andnot merely for a period commencing 1st February, 1968, whichis the day following that on which the Director of HealthServices communicated the decision of the Public ServiceCommission to the plaintiff-respondent.
Among the defences taken by the Attorney-General were thatthe Minutes on Pensions created no legal right in favour of apublic servant, that the plaint disclosed no cause of action, andthat the Court had no jurisdiction to entertain an action in whichthe only relief prayed for was in effect a declaration in regardto his pension and the date from which he should be paid thatpension.
An ‘ action ’ is defined in the Civil Procedure Code as * aproceeding for the prevention or redress of a wrong.’ Section 46of the Civil Procedure Code permits the Court to refuse toentertain a plaint if it does not disclose a cause of action. Insection 5, a cause of action is defined as : " the wrong for theprevention or redress of which an action may he brought and
TKNNEKOON, C.J.—Attorney-General v. Abeystny/ieJM3
includes the denial of a right, the refusal to fulfil an obligation,the neglect to perform a duty and the infliction of an affirmativeinjury.”
The expressions * wrong ’, ‘ right', * obligation ’, * duty *, and‘ injury ’ occurring in this definition refer only to legal wrongs,rights, obligations, duties, and injuries. They have no reference,for instance, to rights, wrongs, obligations and duties which aresignificant only in a social, moral or religious sense. Thus aperson instituting action to recover “his pension” or to obtaina declaration of what his pension properly calculated should be,must show that he has a legal right to that pension and that theState’s failure to pay the pension is the denial of a legal rightor the refusal to fulfil a legal obligation.
Section 6 of the Civil Procedure Code provides that, “ everyapplication to a Court for relief or remedy obtainable throughthe exercise of the Court’s power or authority or otherwise toinvite its interference constitutes an action”.
This section is not intended to be a definition of the term.“ action ”, for a definition has already been provided for thatword in section 5. However, section 6 is illuminative for itsdescription of an action by reference to the Court’s power orjurisdiction.
If we now look at section 217 of the Civil Procedure Code we;find the kinds of decrees or orders which a Court has jurisdictionto make. Among other kinds of decrees or orders, section 217 (G)empowers a Court, “ without affording any substantive relief orremedy, to declare a right or status ”.
Here again we find that the jurisdiction of the Court to giantdeclaratory decrees is confined to declarations of rights orstatus. It is hardly necessary to add that the rights which aCourt can declare must necessarily be legal rights.
The first section of the Minutes on Pensions reads as follows : —“Public servants have no absolute right to any pension orallowance under these rules and the Crown retains the powerto dismiss a public servant without compensation ”.
The operative portions of Sections 2 and 15 of the Minuteson Pensions applicable to the plaintiff-respondent’s case are asfollows: —
“ (2) Subject to the exceptions and provisions hereinaftercontained, every public servant holding a permanentoffice in the service of Sri Lanka which has beendeclared to be pensionable by a notification publishedin the Government Gazette, may be awarded apension as under, provided that no officer appointedafter January 1, 1905, shall receive from all sources
104TENNKiCOON, O. J.—Attorney General V. Abeysmght
combined a pension exceeding £ 2000 per annum inrespect of his whole public service both in Ceylonand elsewhere:— ”
“ (15) Where a public servant is required by the competentauthority to retire on grounds of inefficiency, theSecretary to the Treasury may, in his discretion, grantsuch public servant a pension, gratuity or otherallowance: Provided, however, that the amount ofpension, gratuity or allowance so granted shall in nocase exceed the amount lor which his length ofservice would qualify him. ”
The expression “no absolute right” to my mind means “nolegal right". It is a signal hoisted by the draftsman to indicate .both to the beneficiaries under the Minutes on Pensions and tothe Courts that the Minutes are not to be taken as creatingrights enforceable in the Courts. The “no legal right” conceptcontained in section 1 of the Minutes is then reinforced by thetext of rules 2 and 15 which contain the expressions “ may beawarded” and “may in his discretion grant”.
It was held as long ago as 194S, in the case of Gunawardenevs. The Attorney General 49 N. L. R. 359 that the Minutes onPensions merely regulates the administration of pensions bythose in whose hands that duty is placed and does not conferupon retired government servants any legal rights in respectthereof. I find myself, with respect, in agreement with thisdecision. In Gunawardene’s case Gratiaen, J. was following thedecisions of the English Court of Appeal and of the House ofLords in the case of Nixon vs. The Attorney General 1930. 1Chancery 587 in which those two judicial bodies were calledupon to examine section 30 of the Superannuation Act (4 and 5William IV, Chapter 24) of England.
Section 1 of the Minutes on Pensions follows very closely thelanguage of section 30 of the Superannuation Act. I think itwould be useful to reproduce a few passages from the judgmentsin the Court of Appeal 1930. 1 Chancery 537 and of the Houseof Lords 1931 AC 184. The Court of Appeal said :
“The Act appears to me to be an Act to regulate theadministration of the pension and superannuation allowancesby those in whose hands that duty is placed, and in no partis there any conferment upon the recipients of a title toclaim or receive them. To put the question beyond doubtS 30 is in these terms : ‘ Provided always, and be it furtherenacted, that nothing in this Act contained shall extendor be construed to extend to give any person an absolute
right to compensation for past services ” Words
could not be more explicit. An attempt was made to suggestthat the use of the word “ absolute ” left it possible that a
TEXXEKOOX, C..T.—Attorney-Uane-ral c. Abeysinghe
conditional right remained to the civil servants, but I cannotaccept that mew. In my judgment the word is used so thata right in any form may he negatived. The Section destroysthe possibility of a claim of legal right/’
The House of Lords in dealing with the submission that theMinutes on Pensions confers a right though it may not be anabsolute right said: “My Lords, to get out of a provision thatyou are not to have an absolute right a positive provision thatyou are to have a right is an argument which has only to bestated to be rejected.”
Again in dealing with the argument that while there may beno right to a pension, once a pension is granted it must begranted according to the provisions of the Superannuation Act,Viscount Dunedin said : “ My Lords, that ends the matter, exceptfor what is called the 2nd question, namely, whether even ifthere is not any right to a pension, nevertheless, if the pension isgranted, it must be granted according to certain scales laid downin the Acts. My opinion upon that is there is no second question ;it is only the first question put in another way, because if youhave not a right to sue at all to say that you are to recover yourpension as such, it does seem to me perfectly impossible to saythat you have a right to a declaration that your pension must beso and so. Therefore the second question I think practically hasonly to be stated to show that it does not exist.”
One of the submissions made on behalf of the plaintiff-respondent was that the opening sentence of the Minutes onPensions which provides that public servants have no absoluteright to any pension, says by implication that they have a right,but not an absolute right. Can it be said that they have aconditional or a contingent right ? There is no basis forsuggesting that there is a conditional or a contingent right forthe rules do not provide for a condition or contingency in whichthe right becomes a full fledged or perfect right, for that is theordinary significance of qualifying the word ‘ right ’ by the word‘conditional’ or by the word ‘contingent.’
To my mind the words ‘ absolute right ’ are used incontradistinction to what are in legal theory known as an“ imperfect right An imperfect right is one which isunenforceable in the ordinary Courts of Law. One example ofan imperfect right is the case where a person having a legal righthas lost his right of action by reason of a rule of prescriptionbarring the remedy. It has been urged that the right of a publicservant is of this kind, and that it is for that reason that theplaintiff-respondent has not in his plaint asked for an order onthe Government to pay his pension. The answer to this is that ifa right is unenforceable in the Ordinary Courts of Law, it is notone in respect of which even a declaration can be obtained. If
2 •• — A26025(77/05)
TENNEKOON, C.J.—Attorney-General v. Abeysinghe
it were otherwise, our Courts would be inundated with decla-tory actions in Respect of causes of action which are prescribedin the hope that by obtaining a declaration from Court thethe defendant might be persuaded to do what the Court cannotorder him to do. It seems to me that in those cases in whicha declaration is prayed for and no substantive relief is askedmerely because the substantive relief, if asked for, must necessa-rily fail, cannot be entertained by our Courts.
The declaration asked for in the present case is not a declara-tion quia timet. A denial of his ‘right’ is a total denial and theonly relief that arises on that denial is a prayer for an order topay. In a quia timet action no substantive relief is asked for, notbecause a prayer for substantive relief must necessarily fail, butbecause in the circumstances of the case it becomes unnecessaryto ask for substantive relief, or the time is not ripe for claimingsuch relief.
It has also been suggested that the right to a pension may bea contractual right. Reference was made to the case ofKodeeswaran v. The Attorney-General 1969, 72 N.L.R. 337 wherethe Privy Council held that a Civil Servant in Sri Lanka has aright of action against the Government for arrears of salary inrespect of services which he has rendered. But, if it is theposition that the right to a pension is based on a contract, onemust show what the terms of the contract are and that theState has committed a breach of the terms of that contract. Ifcontract there is, then section 1 of the Minutes on Pensions, andsections 2 and 15 also become part of that contract ; if thatdocument itself contains terms which make it clear that theMinutes on Pensions are not intended to create legal relation-ships, the only conclusion which a court can come to is that the.Minutes on Pensions cannot be the basis of any contractual rights.
The learned District Judge in coming to the conclusion thatthe plaintiff-respondent is entitled to a declaratory decree reliedupon the judgment of Gratiaen, J. in Attorney-Generalvs. Sabaratnam 57 N.L.R. 481.
Gratiaen, J. said in the course of that judgment: “ The Minuteson Pensions serves as a reminder that public servants had noabsolute right to any pension or allowance under these rules.Accordingly he is entitled only to expect a pension, but thisexpectation though it might be relied on with full certainty, isnonetheless not a legal right; but Courts of justice have alwaysassumed so far without disillusionment, that their declaratorydecrees against the Crown will be respected.”
In Sabaratnam’s case the plaintiff asked for a decree againstthe Crown to the effect that “ the allegation made by theGovernment that a sum of Rs. 10,003.57 had been over paid to
TENN7EKOOX, C. J.—Attorney-General Abeysinghe
the plaintiff on his bill No. 37 for work done in January 1948was wrongfully made, and that the plaintiff is not liable to refundany monies received on account of the said bill No. 37.”
Sabaratnam sought a declaration in this way for the reasonthat on the basis that there was Rs. 10,003.57 legally due to theCrown from Sabaratnam it was withholding payment of hispension. Not being able to sue for his pension in any way, hesought a declaration in Court that the Crown had no right toa payment of Rs. 10,003.57 from him. The declaration granted inthat case was not in respect of a pension claimed by the plaintiffagainst the Crown. It was a declaration in relation to whetherthe Crown had or had not a right in law to a payment of acertain sum of money from the plaintiff.
Some further submissions made by Counsel for the plaintiff-respondent need to be examined.
Firstly, it was submitted that although a public servant maynot be able to enforce a payment of pension through the courtsby asking for a money decree, he may get a declaration. Thissubmission is only a play on words; if a public servant is unableto enforce payment of the pension through the courts, it isbecause he has no legal right. I have already set out my reasonswhy I think a declaration in respect of a pension which is not alegal right cannot be had by a public servant. I need only addthe quotation from a judgment of H. N. G. Fernando, S.P.J., ashe then was, in the case of Thiagarajah v. Karthigesu (1966)69 N.L.R. 73 at 77 : —
“ The declaratory jurisdiction can be invoked for thedetermination of legal disputes, but not for disputes of amoral, social or political character. ”
In the present case if the plaintiff-respondent prayed for adeclaration coupled with an order directing the State to pay himhis pension, the court could not have granted either. It seems tome that courts have no power to grant declarations in caseswhere the substantive relief if prayed for as consequential onthe declaration must necessarily fail.
A declaration granted by court in circumstances such as arepresent in this case would be a mere brutum fulmen, even thoughthe plaintiff-respondent may have a strong expectation of findinga pot of gold where the rainbow ends. Section 15 of the Minuteson Pensions provides that : —
“Where a public servant is required by the competentauthority to retire on grounds of inefficiency, the Secretaryto the Treasury may in his discretion, grant such publicservant a pension, gratuity or other allowance. ”
TENNEKOON, O.J.-—Attorney General r. Abeyninghe
The decision of the Secretary to the Treasury in the contextof section 1 of Minutes on Pensions is taken in the exercise of apurely administrative discretion which the courts have no juris-diction to control. Its only remedy is an appeal of a moral, socialor political kind.
Another submission made by counsel for the plaintiff-respon-dent is based on a case of R. vs. Criminal Injuries CompensationBoard Ex parte Lain (1967) 2 A. E. R. 770. In that case the wifeof a Police Constable Mrs. Lain applied to the Criminal InjuriesCompensation Board for compensation under a scheme which wasnot statutory, but set up by the Executive Government with theconcurrence of both Houses of Parliament. This scheme itselfprovided that payment of compensation would be ex gratia;initially, the question whether the application for compensationshould be allowed or rejected was taken up by one member ofthe Board. If the applicant was not satisfied, he was entitled tobe heard before three other members of the Board. Mrs. Lainfailed on her application before the Board, and she applied for anorder of certiorari to quash the decision of the Board. The courtof Queen’s Bench consisting of Lord Parker, C.J., Diplonk, L.J.,and Ashworth, J. refused the application on the ground that thedecision of the Board disclosed on the face of it no error of law ;but they held that if there was an error of law, certiorari wouldhave been granted, even though there was no legal right to com-pensation under the scheme. This case does not assist theplaintiff-respondent at all. All three judges accepted the positionthat the applicant had no legally enforceable right to compensa-tion under this scheme. For instance Diplock. L.J. says at page780 A.E.R : —
“ The concept of ex gratia payment by the Crown tosubjects is a familiar one. It gives rise to no rights in the un-paid subject to enforce payment by civil action for a moneyjudgment or a declaration of rights (seeNixon v. A.G.
(1930) 1 Ch. 566 at p. 587 or by prerogative order of manda-mus (see R. v. Treasury Lords Comrs (1872) L.R. 7 Q.B. 387)It does not, however, follow from this, as counsel for theBoard contends, that so long as the instructions given by theExecutive Government to the Board require the Board toact judicially, the Board are answerable only to the execu-tive government for the way in which they exercise theirjudicial functions and are free from any control by theHigh Court.” Ashworth J. said at page 784 :
“ In the past this court felt itself able to consider theconduct of a Minister when he is acting judicially or quasi-judiclally and while the present case may involve an ex-tension of relief by way of certiorari I should not. feel
TENISTEKOON, C.J.—Attorney-General v. Abeysinghe
constrained to refuse such relief if the facts warranted it-In the familiar passage from the judgment of Atkin, L.J., inR. v. Electricity Comrs (1923) A.E.R. Rep. at p .161 thereare included the words : “ affecting the rights of subjects ”and counsel for the board contended that they constitute aninsuperable obstacle to any relief by way of certiorari,because nobody has any legal right to compensation. Heargued with force that the payment of compensation isexpressly declared to be ex gratia: it is bounty and nothingelse. For my part I doubt whether Atkin, L.J., was pro-pounding an all-embracing definition of the circumstances inwhich relief by way of certiorari would lie. In my judgmentthe words in question read in the context of what precedesand follows them, would be of no less value if they werealtered by omitting “ the rights of ” so as to become “ affect-ing subjects I regard the duty to act judicially, in a publicas opposed to a private capacity, as the paramount considera-tion in relation to relief by way of certiorari. ”
It will be seen from these passages that this case is no authorityfor the proposition that refusal to make an ex gratia paymentwas not regarded by the judges who decided that case asaffecting the legal rights of the applicant; on the contrary thecourt while accepting the position that the decision ox theCriminal Injuries Compensation Board did not affect legalrights, held that Certiorari would be available only by modifyingLord Atkin’s familiar dictum in Rex vs. Electricity Comrs (1923)A.E.R. Rep. at p. 161. Chief Justice Parker, and Ashworth, J. saidthat, the phrase ‘ right of subjects ’ should be read as ‘ affectingsubjects’. Diplock, L. J, said: —
‘ I do not find it necessary for the purpose of this case toexpress any view whether certiorari would lie in respect of adetermination which was incapable of having any effect onlegal rights in any circumstances. It’ is, however, in myopinion quite sufficient to attract the supervisory jurisdictionof the High Court to quash by certiorari a determination ofan inferior tribunal made in the exercise of its quasi-judicialpowers, that such determination should have the effect ofrendering lawful and irrecoverable a payment to the subjectwhich would otherwise be unlawful and recoverable. I wouldtherefore, hold that we have jurisdiction to entertainthe present application for an order of certiorari against theCriminal Injuries Compensation Board. ”
A further aspect of this matter which is worthy of considera-tion is whether the Ceylon Constitution and Independence Orderin Council 1946 and 1947 placed Public Servants who were insiervice at the date of the enactment of that Constitution in any
TKNNEKOOKS’. O.J. —Attorney General v. Abtjsiru/he
better position than they were before the enactment of thatConstitution. The appellant was one to whom section 64 (2) ofthat Constitution would apply. That section reads as follows : —
“ Subject to the provisions of section 63 of this Order allpensions, gratuities and other like allowances which may begranted to persons who, on the date on which this Part ofthis Order comes into operation, are in the service of theCrown in respect of the Government, of the Island, or to thewidows, children or dependants of such persons, shall begoverned by the written law in force on that dare or by anywritten law made thereafter which is not less favourable. ’’
The ex gratia nature of the pension remains unaffected bythis provision. It seems that the position would be the sameunder the parallel provisions contained in the present Constitu-tion which is substantially the same as section 64 (2) of theprevious Constitution. These provisions in our Constitutiondo not appear to have been intended to convert what was anunenforceable obligation of the State to one which could be en-forced through the courts. The case of Wigg v. The Attorney-General for the Irish Free State 1927 A.C. 627 is useful forunderstanding the position of Public Servants and their pensionrights under the Constitution. In that case upon the establish-ment of the Irish Free State, the two appellants, who wereestablished civil servants of the Crown were transferred to theservice of that State. They retired in consequence of thechange of Government, and being dissatisfied with the retiringallowances granted to them by the Minister of Finan.ce, theybrought an action against the Attorney-General for the IrishFree State claiming declarations as to their rights.
The Privy Council after referring to the article 10 of theTreaty said : “ That article, taken by itself, might not have*been enforceable by an individual citizen in the Irish Courts;but by a series of enactments following upon the Agreementfor a Treaty, it has been made a part of the municipal law ofthe Free State.” The Judicial Committee then went on to referto certain orders made under Act 1 of 1922 by which the Treatywas given the force of law. The judgment proceeds: “ By theProvisional Government (Transfer of Functions) Order, 1922.clause 7, it was provided as follows: —
“ Where the officer is transferred to the ProvisionalGovernment under this order, he shall hold office by s*tenure corresponding to his previous tenure, and if he ■'discharged by the Provisional Government, or if hrretired in consequence of the change of Governmer1effected by this Order, he shall be entitled to receive compensation from the Provisional Government and the term*
TEXXEKOUX, C.J.—Attorney General o. Abtyninghe
of such compensation shall not be less favourable to himthan such as are accorded in the like circumstances by.th-Government of Ireland Act. 1920. ”. ,
Article 78 of Act No. 1 of 1922 provided as follows: —
Every such existing officer who was transferred from theBritish Government by virtue of any transfer of services tbthe Provisional Government shall be entitled to the benefitof Article 10 of the Scheduled Treaty. ”
The Privy Council then said:
“ The effect of these enactments, and particularly, Article78 of the Constitution, was to give every existing officer whowas transferred to the Provisional Government, and after-wards to the Free State, a right by Irish Law to the benefitof Article 10 of the Agreement for a Treaty with a corres-ponding title to enforce that right in the courts of the Irish .Free State. ”
An argument based on the decisions of the English Courtswhich have laid it down that a servant of the Crown has nolegal right under the Superannuation Acts to sue for his superannuation allowances was rejected. The Privy Council said t
“ Their Lordships do not question the authority of thosedecisions, which, indeed, was recognized by the House ofLords in Considine v. Mclnerney 1916, 2 A.C. 162 but thosecases turned entirely upon the language of the Super-annuation Acts”
The claim of the present appellants rests not upon the Super-annuation Acts taken by themselves, but upon those Acts asmodified and applied by the Agreement for a treaty betweenGreat Britain and Ireland and Statutes and Orders of 1922.Their Lordships went on to hold that in these circumstances, theappellants were entitled to the declaration they sought.
In Sri Lanka there is no constitutional provision or any otherprovision of written law which has the effect of altering theeffect of section 1 of the Minutes on Pension; the decision inWigg vs. The Attorney-General for the Irish Free Stale can thushave no bearing on the question before us.
For the reasons stated above I would hold that the learnedDistrict Judge was wrong in granting the plaintiff-respondentthe declaration which he sought. The appeal is allowed; thejudgment of the District Court is set aside. The plaintiff-res-pondent’s action is dismissed. The respondent will pay theappellant costs of the action in the court below and the costs ofappeal which I fix at Rs. 350.
SH41MANIS, J.—Attorney-General v. Abeysinghe
The plaintiff-respondent was a Public Servant who held apermanent and pensionable post under the Government as anApothecary in the Department of Health. Pursuant to certaincharges framed against him (which are not material to this case)he was dismissed from service with effect from 1st June 1957.On representations made by the plaintiff-respondent the PublicService Commission (being the competent authority) set asidethe order of dismissal and substituted therefor an order of com-pulsory retirement on grounds of inefficiency. This decision wascommunicated to the plaintiff-respondent by the Director °fHealth Services on the 31st January, 1968. Thereafter the Secre-tary to the Treasury awarded him a pension (reduced by 20 per-cent) in terms of Regulation 15 of the Minutes on Pensions andfixed the 1st February 1968 as the day from which the pensionwould be payable. The plaintiff-respondent brought this actionagainst the Attorney-General for a declaration that he is entitledto his full pension and that it should be paid to him as from 1stJune, 1957. He later confined his action to a declaration that hewas entitled to the pension awarded to him as from 1st June1957. The defendant appellant took up the position that thedeclaration sought by the plaintiff respondent was not one whichcomes within the ambit of Section 217 (G) of the Civil ProcedureCode and that the plaintiff-respondent was not in law entitledto maintain an action in respect of his pension or the mode ofcalculation thereof. The learned District Judge granted the plain-tiff respondent the declaration he sought and the Attorney-General appeals against the said judgment.
The learned State Counsel urged that no declaration could begranted to the plaintiff respondent as he had no legal right to apension and Section 217 (G) of the Civil Procedure Code there-fore does not apply. He relies strongly on the case of Nixon vs.Attorney-General (1930-1 Chancery 587 and the judgment of theHouse of Lords in the same case reported in 1931 Appeal Cases184). He also cited the case of Gunawardene vs. Attorney-General(49 N.L.R. 359) where Gratiaen J having referred to the case ofNixon vs. Attorney-General held that a retired ex-Public Servanthas no legal right to a pension enforceable in a Court of Law.Learned State Counsel also pointed out that the case relied on bythe learned District Judge namely the Attorney-General vs.Sabaratnam (57 N.L.R. 481) was for a declaration in respect ofa contract with the Crown and not pension.
I have considered carefully the submissions made by learnedState Counsel but find myself unable to agree with him in spiteof the high authority cited, which in my view, could be distin-guished, and will not apply to a public servant in this countryat the present time.
SIKIMAU'E, J.—Attorney General v, Abeyxinghe373
Nixon vs. Attorney-General was a case where the appellantsMr. Nixon (and three others) who were retired Civil Servantsand had qualified for the award of superannuation allowances,claimed to be entitled as of right to have superannuation allowan-ces calculated on the full amount of their annual salaries andemoluments including a bonus granted by the Treasury to CivilServants, in accordance with the scales provided in Section 2 ofthe Superannuation Act 1859 as amended by the SuperannuationAct of 1909. It was there held that the appellants had no legalright enforceable in a Court of law to superannuation allowancescalculated according to the scale fixed by the SuperannuationActs. The appellants there also founded their claim (unsuccess-fully) on a contract with the Crown and it was held in respectof that claim that the only power of the Lord Commissioners ofthe Treasury was conferred by statute and that they had noauthority to contract themselves out of it. In the course of theAppeal Court judgment Their Lordships referred with approvalto the case of Cooper vs. Queen (14 Ch. D. 311) and Yorke vs.King (1915—1K.B. 852). In the former it was held that
“ Under the Acts regulating the superannuation allowancesof the Civil Servants, the decision of the Commissioners ofthe Treasury as to the amount of an allowance is final, andno Court of law has jurisdiction in the matter,”
and in the latter, that
“ Under the Superannuation Acts 1834-1859, the decision ofthe Commissioners of the Treasury either as to whether aperson is entitled to superannuation allowance or as to thebasis upon which an allowance shall be calculated, is final,and no Court of law has jurisdiction in the matter. ”
The Privy Council case of Wiggs vs. Attorney-General for theIrish Free State (1927 A.C. 274) was also referred to and thefollowing passage from it quoted
“ The English Courts which have laid down that a servantof the Crown has no right under the Superannuation Acts tosue for the superannuation allowances and for this purposereference was made to Cooper vs. Queen and Yorke vs. King.Their Lordships do not question the authority of this decisionwhich indeed was recognised by the House of Lords inConsidine vs. Mclnemy (1916 2 AC. 162),”
but the judgment in Wiggs case continued as follows,
“ but those cases turned entirely upon the language of theSuperannuation Acts. Section 30 of the Act of 1834 (whichhas not been repealed) enacts that nothing in this Actshall extend or be construed to extend to give any person anabsolute right to compensation for past services or to any
SJR1 MASK, J.—Attorney-General u. Atxiyainghc
superannuation or retiring allowances under this. Act, andSection 2 of the Act of 1859 provides that any question as toa claim for superannuation shall be referred to the Commi-ssioners of the Treasury, whose decision shall be final; and,in view of these enactments, it was clear that no action couldbe brought to set aside or vary a decision of the Commis-sioners of the Treasury. But the claim of the presentappellants rests, not upon the Superannuation Acts taken bythemselves but upon those Acts as modified and applied by“the agreement or a treaty between Great Britain and Irelandand the Statutes and Orders of 1922. ”
Wiggs case was one whereupon the establishment of the IrishFree State, the two appellants (Wiggs and another) who wereestablished Civil Servants of the Crown, were transferred to theservices of that State. They retired in consequence of the changeof Government and being dissatisfied with the retiring allowan-ces granted 1 o them by the Ministry of Finance, they brought anaction against the Attorney-General for the Irish Free State■ claiming a declaration as to their rights. It was there held (inview of certain Acts, the treaty between Great Britain andIreland and certain rules modifying the Superannuation Acts1834 of 1914) that the appellants could assert their rights by anaction against the Attorney-General. I have referred above tofurther passages in Wiggs case and what was there held to showthat the passage from it cited in Nixon’s case merely distinguish-ed the cases of Cooper vs. Queen and Yorke vs. King, but did notfollow them, as different considerations applied in the Irish FreeState.
There are at least two matters which distinguish Nixon’s casefrom the case before me. Firstly that decision was based purelyon the interpretation of the English Superannuation Acts whichhad provision that the final determination of all questions bothas to who is entitled and how far any servant is entitled wasby the Treasury, and the decision by the Treasury on all suchquestions was final. This provision no doubt largely influencedthe decision in Nixon’s case to exclude an enforceable right ina Court of law. Learned State Counsel has not referred to anysuch provisions in the Minutes on Pensions which is the relevant“ written law ” applicable to the instant case. There is no doubtthe provisions of Regulation 51 A (2) but that applies only in.the case of the exercise of delegated powers and where anyperson is “ dissatisfied ” and therefore has no application to theinstant case. Secondly it wras urged in Nixon’s case that therewas a contract between the civil servants and the Crown as theyentered the civil service relying on a Treasury minute whichappeared in the Civil Service Year Book. It was held howeverthat the minute was in no sense an invitation to come into the
SXKIMAXE, J.—Attorney-General v. Abeysinghe
Civil Service on the basis of its terms and that the Civil ServiceYear Book was not published by the authority of the Treasuryand that no contract was thereby created. The conclusion I havearrived at. in the instant case is based mainly on the differencein this country as regards the second matter above referred to.In this country, it cannot now be doubted that there is a validcontract of service enforceable at law between a Public Servantand the Crown as was held by the Privy Council, in the case ofKodeswaran vs. Attorney-General (72 N.L.R. 337). I do nottherefore think that we can any longer be guided by the decisionin Nixon’s case. The decision in Nixon’s case also quoted a passagefrom Lork Buckmaster in the earlier case of Considine vs.Mclnemy on the question of pensions (also quoted by GratiaenJ. in Attorney-General vs. Sabaratnam) as follows,
“ He was entitled to expect an annual allowance ■ –
this expectation, though it might be relied on with fullcertainty was none the less not a legal right, and no claimfor it could be enforced by any legal proceedings, ”
was purely on the interpretation of the English SuperannuationActs. It was decided at a time when a Civil Servant held officeat the pleasure of the Crown and could be dismissed at pleasureand had no enforceable claim for his salary. He -had to dependfor his salary as also, indeed for his pension, on the bounty ofthe Crown. The position now, however, even in Great Britainappears to be that in regard to contracts of service the Crownis bound by its express provisions as much as any subject (Reillyvs. R 1934 A.C. 176). Learned Counsel for the plaintiff respondentreferred to the recent case of R. vs. Criminal Injuries Compen-sation Board (1972 A.E.R. 770). It transpired in that case thatthe Criminal Injuries Compensation Board was not constitutedby statute but by the act of the Crown, that is the executiveGovernment. This Board administered on behalf of the executiveGovernment moneys granted by Parliament to the Crown fordistribution by way of compensation to persons who havesuffered injury directly attributable to criminal offences. Anapplicant who had applied for compensation and was dissatisfiedwith the order of the Board applied to Court for a writ ofcertiorari. It was argued that the Court has no jurisdiction asthe Board did not have authority “ to determine questions affec-ting the rights of subjects ” in that a determination of the Boardgives rise to no enforceable rights, but only gives the applicantan opportunity to receive the bounty of the Crown. Nixon’scase was also cited in support but it was distinguished and thecourt held that it had jurisdiction, ,
“ by way of prerogative order to supervise the dischargeof these functions notwithstanding that the Board did not
SIKIMANE, J.—Attorney -General v. Abcysinghc
derive their authority from statute, and that their adminis-trative functions, by way of payment, were the distributionsof bounty. ”
So that though at one time both the salary and pension of CivilServants in England depended on the grace and bounty of theCrown, the foregoing shows that this has gradually given way atleast where salary is concerned to enforceable rights in con-tract and where a non-statutory body decided the distributionof bounty, to the supervisory jurisdiction of the Courts.
The judgments of Gratiaen J. in Gunawardene vs. Attorney-General (49 N.L.R. 359) and the Attorney-General vs. Saba-ratnam (57 N. L. R. 481) were delivered at a time when it wasthought that a Public Servant in Ceylon had no right to suefor his salary. In the latter case whilst affirming a declaratorydecree against the Crown in respect of the plaintiff’s non liabilityto pay the Crown any sum of money he stated,
“ The Crown enjoys no special immunity from declaratorydecrees in cases where they would be appropriate in actionsbetween private litigants. ‘ The King is the fountain andhead of justice and equity, and it shall not be presumedthat he will be defective in either; it would derogate fromthe King’s honour to imagine that what is equity againsta common person should not be equity against him. ’
(Pawlett v. The Attorney-General.) It is important torealise that any decree against the Crown for the paymentof money to a private individual is itself declaratory ineffect though not in form. The Crown is immune from allordinary modes of enforcing judgments, but in the ultimateresult, the obligations arising under the decree areinvariably honoured. ”and again,
“ The plaintiff has complained that his arrears of salaryhave not been paid. The Courts cannot assist him ; ‘ his onlyclaim is on the bounty of the Crown ’ and his only remedy
lies in an appeal of an official or political kind… by
petition, by memorial or by remonstrance, see High Com-missioner for India v. hall, where the Judicial Committeeentered a decree declaring that the plaintiff was still a mem-ber of the Indian Civil Service, but declined to enter ajudgment in his favour for arrears of salary upon thatbasis. Equally, the Courts cannot compel the Crown topay the present plaintiff any pension which he may hav°' earned ’. The Minutes on Pensions serves as a reminderthat ‘ public servants have no absolute right to any pensionor allowance under these rules. ’ (Guneioardene vs. TheAttorney-General.) Accordingly, he is ‘ entitled only to
SIKIilAXE, J.—Attorney-General V. Abey&inghe
expect ’ a pension, but ‘ this expectation, though it mightbe relied on with full certainty, is none the less not a legalright, ’ (Considine vs. Mclnerny). ”
It has now been held by the Privy Council in the case of Kodes-
varan vs. The Attorney-General (72 N.L.R. 337) that,
“ A civil servant in Ceylon is entitled to sue the Crown forarrears of salary which have accrued due, by the terms ofhis appointment, in respect of services which he has ren-dered during the currency of his employment. In such acase the fact that his appointment as a Crown servant isterminable at will, unless it is expressly otherwise providedby legislation, is not relevant. ”
In the course of that judgment Their Lordships stated,
“ A general Crown immunity from suit in respect of obli-gations ex contractu if it existed in the eighteenth centuryin England might also give rise to the inference that not-withstanding the contractual nature of a civil servant’sclaim to salary in Ceylon the sovereign attribute of immu-nity from suit was not intended to be waived by the Pro-clamation. But by the eighteenth century it had beenestablished that, although no writ could issue against thesovereign, monies due to the subject under a contract withthe Crown could be claimed in the English courts by theProcedure of Petition of Right. Their Lordships have notbeen referred to any case as early as the eighteenth centuryin which a Petition of Right was brought by a civil ser-vant for arrears of salary; but in 1820 it was takenfor granted by Chitty in ‘ The Prerogatives of theCrown ’ that a Petition of Right would lie ‘ where theKing does not pay a debt, as an annuity or wages etc., duefrom him.’ This was a work of high authority which wouldbe familiar to the judges of Ceylon in the first half of thenineteenth century. Stuart Robertson in his Civil Pro-ceedings by and against the Crown ’ published in 1908 statedcategorically that ‘ payment for services rendered may beclaimed by Petition of Right ’ and cites two such petitionsbrought in the eighteen sixties of which one was successfuland the other settled. It was not until cases decided in1926 and after that any doubt was cast upon this proposi-tion. Their Lordships will advert to these cases later. Itis at present sufficient to state that, as the English law stoodat the time of the Proclamation, there was no sufficientground in constitutional theory to justify the inference thatthe Crown must have intended to deprive a civil servantengaged in Ceylon of any remedy in the courts of that coun-
378SIRIMAN25, J.—Attorney-General v. Abeysinghe
try for arrears of salary, if a remedy had previouslybeen available under Roman-Dutch law as applied in theIsland. ”
After referring to the earlier cases in Ceylon Their Lordshipscontinued,
“ Here then is authority dating back more than a hundredyears that, under the common law of Ceylon, an actiondoes lie at the suit of a civil servant for remunera-ration agreed to be paid to him by the terms of hisappointment and remaining unpaid. ”
The Supreme Court in Ceylon had in this case held againstthe public servant’s right tc recover his salary and relied onthe case of High Commissioner for India vs. hall (1948 A.I.R.(P. C.) 121). Gratiaen J. too had cited this case in support ofhis view in the case of The Attorney-General vs. Saharatnam asstated above. The Privy Council however did not follow Lall’scase which had adopted the reasoning of Lord Blackburn in thecase of Mulvenna vs. Admiralty (126 S. C. 842) and stated.
“In the opinion of Their Lordships Lord Blackburn’sreasoning in Mulvenna’s case is defective and his conclusionis contrary to authority and is wrong. That portion of thejudgment in Lall’s case which adopts it as a correct statementof the law must be regarded as given per incuriam since therelevant and prestigious authorities to the contrary appearnot to have been cited to the Board. ”
It is true no doubt that these are authorities which relate tothe recovery at law of the salary of a public servant. In myview however in Ceylon a public servant’s pension is so mucha part of his contract of service (unlike in Nixon’s case) thatthe authorities in respect of salary will apply with equal forceto his pension. In Ceylon it is common knowledge thatvacancies in the Public Service are advertised in the Govern-ment Gazette—the official publication of the Ceylon Govern-ment. In inviting applications for posts in the Public Ser-vice it is proclaimed in the advertisements appearing in thisGazette that “ the post is permanent and pensionable ”—untilpensions were done away with in 1972 and a Provident Fundsubstituted. The applicants relied very much on the fact thatthe post was pensionable and preferred to join the GovernmentService even on lower scales of pay than the private sector inorder to “earn” a pension. Even their letters of appointmentstated that the post to which they were appointed was perma-nent and pensionable. It is on the faith of these statements thata public servant in Ceylon serves the Government and givesof his best to “ earn ” not only his salary but also his pension interms of the Minutes on Pensions which is part of the “written
SIKIJ1ANK, J.—Attorney-General u. Abeysinglie379
law ” of Ceylon. Can it then be said at the end of his service,as State Counsel contends, that he has no right whatever to apension and that the Minutes on Pensions are merely guide linesfor the Secretary to the Treasury which he is free to follow ordisregard? State Counsel who has appeared in the LowerCourt has gone so far as to say that the Secretary to theTreasury can act on his own whims and fancies and there is noremedy ! For my part I cannot subscribe to such a position, asto my mind there is something inherently unjust and Unfair ifthat were the true position.
Great stress has been laid by learned State Counsel on theopening paragraph of the Minutes on Pensions which states,
“Public servants have no absolute right to any pensionor allowance under these rules, and the Crown retains thepower to dismiss a Public Servant without compensation. ”
and to similar words also found in the English SuperannuationActs and the interpretation given to those words in Nixon’scase as denying any right. It must be remembered that inNixon’s case Their Lordships considered such words in the back-ground of the other provisions of those Acts—especially theproviso which declares that the decision of the Commissioner’sof the Treasury shall be final on all questions. In my view thewords underlined by me in the above provision clearly indi-cate the limitation placed on the “ right ” and why therefore itrefers to “no absolute right.” With great respect I am unable tointerpret the words “no absolute right” as being the same as“ absolutely no right ”, which in effect is the decision in theEnglish cases as different considerations apply to a Public Ser-vant in this country at the present time. To my mind thisphrase indicates that public servants are not entitled to pen-sions under all or any circumstance, but only, and subject tosuch limitations and conditions, as are laid down in the Minuteson Pensions itself. For instance the words “ and the Crownretains the power to dismiss a public servant without compen-sation ’’ referred to above is one instance where a public ser-• vant will have no right to a pension, as otherwise even a PublicServant who is dismissed can claim that he has a right to a pen-sion. Then again Regulation 15 lays down that if a public ser-vant is retired for inefficiency, then the Secretary to theTreasury may in his discretion grant a pension or a reducedpension or none at all. In my view the word “ may ” in Regu-lation 8 of the Minutes on Pensions dealing with the paymentof a pension must be read as “ shall ” unlike, the word “ may ”in Regulation 15 where a discretion is expressly provided for.On the other hand if a public servant, who has joined the ser-vice on the faith of the express provision that the post is pen-sionable. discharges his duties faithfully and efficiently during
380SIKIMA-NE, J.—Attorney-General v. Abeysinyhe
his period of service and thus “ earns ” his pension and retireson reaching the age of retirement or on any other lawful groundprovided by the Minute on Pensions itself, he is in my viewentitled as of right to the pension he has “ earned ” computedin terms of the Minutes on Pensions, as his pension is as mucha part of his contract of service as his salary.
Section 64 (2) of the Ceylon Constitution and IndependenceOrder-in-Council 1946 and 1947 which would apply to theappellant reads: —
“ Subject to the provisions of Section 63 of the Order,all pensions, gratuities and other like allowances whichmay be granted to persons who, on the date on which thispart of this Order comes into operation, are in the Serviceof the Crown in respect of the Government of the Island,or to the widows, children or dependents of such persons,shall he governed by the written law In force on that dateor by any written law made thereafter which is not lessfavourable. ”
The present Constitution of The Republic of Sri Lanka enacts inSection 109(1) that.
.“All pensions, gratuities or other like allowances payableto persons who have ceased to be in the service of theGovernment of Ceylon or cease to be in the services of theRepublic of Sri Lanka, or to widows, children or other depen-dents of such persons, shall he governed by the written lawunder which they were granted or by any subsequentwritten law which is not less favourable. ”
The Minutes on Pensions has been declared to be a part of thewritten law of Ceylon by Ordinance No. 2 of 1947. So that thepayment of pensions “ shall be governed ” by the Minute or.Pensions and not on the whims and fancies of the Secretary tothe Treasury who is free to disregard the minute as has beensuggested by learned State Counsel. The Minute on Pensions isbinding not only on the public servant but also on those entrustedwith the duty of computing and paying his pension. The latterare under a duty in view of the provisions of Sections 64 (2) and109(1) above referred to, to pay pensions according to the regu-lations contained in the Minute on Pensions which even enactsthat no subsequent law can make it “ less favourable. ” Thiscreates a corresponding right in the public servant to receive hispension in terms of that Minute. After the Independence Order-in-Council and the decision in the Kodeswaram case above refer-ed to, the old English cases will hardly have any application topresent day public servants in Sri Lanka. In the present time therights of the worker are increasingly recognised and his right to a
SIRI&1ANE, J.-—Attorney-General v. Abeysinght
gratuity (.n addition to provident fund benefits), which formedno part of his contract of service, is now accepted. In this con-text it would be unjust to construe the Minutes on Pension insuch a way that it would leave public servants, who joined theservice on the footing that their posts were pensionable, to the“ whims and fancies ” of those officers entrusted with the dutyof paying their pensions. I am therefore of the view that at thepresent lime, a public servant in Ceylon has an enforceable rightnot only in respect of his salary but also in respect of his pensionand he is therefore entitled to a declaration as to the amount andthe date from which such pension is payable in terms of theMinute on Pensions.
There remains to consider whether the plaintiff respondentWas entitled to receive his pension from 1st June 1957 or whetherit was within the discretion of the Secretary to the Treasury tofix it from 1st February 1968 as he has done in the instant case.Regulation 15 of the Minute on Pensions under which the Secre-tary to the Treasury has acted reads as follows :
“ V/here a public servant is required by the competentauthority to retire on grounds of inefficiency, the Secretaryto the Treasury may, in his discretion, grant such publicservant a pension, gratuity or other allowance ; provided,however, that the amount of pension, gratuity, or allowanceso granted shall in no case exceed the amount for which hislength of service would qualify him. ”
This regulation authorises the Secretary to the Treasury in hisdiscretion (1) to grant or not to grant a pension (2) if granted itshould n;t exceed (and so it may be less than) the amount forwhich the length of service of the public servant would qualifyhim to receive.
There appears to be nothing in this regulation which refers tothe date from which such pension should be paid or expresslygiving to the Secretary to the Treasury a discretion to fix a date.Pensions are payments made on retirement and it was concededby learned State Counsel that the date of retirement of the plain-tiff respondent for inefficiency dates back to 1st June 1957. Regu-lation 8(1) of the Minute on Pensions which relates to the modeof computation of pensions reads: —
“ The pension or gratuity awarded to a public servant shallbe computed upon the salary drawn by him at the time of hisretirement in respect of the permanent office or offices, thenheld by him, provided that he shall have held such office oroffices, or an office or offices, to which the same fixed salaryor incremental scale of salary is attached, for at least threeyears, otherwise the pension shall be calculated upon the
382SlftlMANE, J.—Attomey-Qeneral v. Abeysinghtt
average of the salaries attached to the permanent officesheld by such person during the three years next precedingthe commencement of such pension”
This indicates that ordinarily the commencement of the pensionmust be immediately after the cessation of his service. There hashowever been an amendment to Regulation 2A(1) of the Minuteson Pensions by a Gazette notification of 6th June 1971 publishedin Government Gazette Extraordinary No. 14962-3 of 14th June1971 by the insertion of a new sub-regulation (iii) and thisamendment is deemed to have come into effect on 1st February,1964. The relevant part of this new sub-regulation reads : —
“ (iii) An officer who is granted a pension from a datelater than the date of his retirement under Section 15 ofthese minutes”
This sub-regulation when read along with Section 15 (underwhich the plaintiff was awarded his reduced pension in this case)by implication, though not in express terms, gives to the Secre-tary to the Treasury a discretion to fix a date later than the dateof retirement when awarding a pension under Section 15. Sincethis sub-regulation is deemed to have come into effect fromFebruary, 1964 it would apply to the plaintiff’^case as he wasawarded his pension under Section 15 in 1967. The plaintiff’scase therefore fails.
For these reasons I would hold that the plaintiff had a right tomaintain an action for the declaration he sought but on an inter-pretation of the “Written Law” (The Minutes on Pensions) appli-cable to his case it must fail on its merits. The appeal is thereforeallowed, the judgment and decree of the District Court is setaside and the plaintiff’s action is dismissed with costs both hereand below.
Tittawella, J-— •
I agree with the Chief Justice that the Minutes on Pensionscreate no legal right in favour of a public servant and that theCourts have no jurisdiction to entertain an action praying for adeclaration in regard to his pension and the date from which heshould be paid. I also agree that in Sri Lanka there is no consti-tutional provision or any other provision of written law whichhas the effect of altering the provisions of Section 1 of the Minuteson Pensions.
There is however, one matter that calls for consideration beforedisposing of this appeal and for this purpose a very brief narra-tive of the facts would be helpful. The plaintiff-respondent wasdismissed from the public service on June 1, 1957, after beingfound guilty on a charge of bribery. On January 31, 1968 he wasinformed that the Public Service Commission had, as a merciful
OTTAWEJJLA, J.—Attorney-General v. Abeyeinghe
alternative to the order of dismissal varied it to one of compul-sory retirement due to inefficiency. In a subsequent communicat-ion the Director of Pensions informed the plaintiff—respondentthat under Section 15 of the Minutes on Pensions he had beenawarded a pension reduced by twenty per cent as from February1, 1968.
It was contended on behalf of the plaintiff-respondent at thetrial and in appeal that whilst Section 15 of the Minutes on Pen-sions gave a discretion to the Secretary to the Treasury on thequestion of granting a pension and the quantum to be paid, hehad no discretion to determine the date from which the pensionshould become payable. This date it was contended, could be noother than the date of retirement, viz : June 1, 1957. StateCounsel on behalf of the defendant-appellant argued that Section15 of the Minutes on Pensions gave the Secretary to the Treasuryan absolute discretion both as regards the quantum and the dateof payment of the pension.
The learned District Judge in his judgment of August 31,1971 holding with the plain tiff-respondent states : —
Once a competent authority decides to retire a public servanton grounds of ineffiiciency from a certain date it must takeeffect from that date and he must be paid his pension fromthat date. It would not be logical to do otherwise. If learnedCrown Counsel’s argument is accepted it would lead to asituation like in the present case where a person is retiredfrom a certain date but paid a pension from another date,leaving a hiatus which is not warranted either according tothe Minutes on Pensions or by reason.
A plain reading of Section 15 does not lend itself to the interpre-tation sought to be given to it by the learned District Judge.The granting or withholding of a pension, gratuity or other allow-ance in the circumstances is entirely in the discretion of theSecretary to the Treasury- The limitations to the exercise of thisdiscretion are spelt out in the proviso to the section itself. Itwould be strange if the Secretary to the Treasury who is vestedwith the discretion of granting, not granting or reducing thebenefits finds himself not being able to determine the date fromwhich the benefits should take effect- It appears to be a needlessfetter on his discretion.
An examination of paragraph (iii) of sub-section (1) of Section2A of the Minutes on Pensions also makes the position clear.This paragraph was inserted in the Minutes on Pensions by anotification published in Gazette Extraordinary No. 14,962/3 of
ITi'TAWELLA, J.—Attorney-General v, Abcryainqhts
June 14, 1971 which deemed the paragraph to have come intoeffect on February 1, 1964. Sub-section (1) of section 2A dealswith the provision whereby an officer to whom a pension isgranted may at his option be paid a reduced pension togetherwith a gratuity (commuted pension). The paragraphs in sub-section (1) deal with the several occasions when such an optioncould be exercised and paragraph (iii) is in the followingterms: —
An officer who :s granted a pension from a date later thanthe date of h's retirement under Section 15 of these Minutesand who had exercised or who exercises the option referredto in the preceding provisions of this Section may, witheffect from the date following the expiry of a period of twelveyears and six months from the date on which his pensionis granted or from February 1, 1964, whichever date is thelater, be paid the full pension which would have been paidto him had he not exercised such option.
It will thus be seen that the Minutes on Pensions clearlycontemplate the situation where under Sect on 15 a person maybe awarded a pension from a date later than the date of hisretirement. This is precisely the position contended for by thedefendant-appellant.
The resulting position then is that even if the plaintiff respon-dent was right in his contention that a declaratory action wasavailable to him in respect of his pension, his action wouldnecessarily have failed because in granting a pension underSection 15 of the Minutes on Pensions from a date later than thedate of the plaintiff-respondent’s retirement, the Secretary to theTreasury has not acted ^under any misapprehension of themeaning of that Section.
The appeal must therefore succeed, and I agree with the orderproposed to be made by the Chief^ustice in h s judgment.