054-SLLR-SLLR-2005-V-3-UNIVERSITY-OF-PERADENIYA-vs.-JUSTUCE-D.-G.-JAYALATHCHAIRMAN-UNIVERSITY-SE.pdf
CA
University of Peradeniya vs. Justice D. G. Jayalath, Chairman
University Services Appeals Board and Others
337
UNIVERSITY OF PERADENIYA VS. JUSTICE D. G JAYALATH,CHAIRMAN UNIVERSITY SERVICES APPEALS BOARD AND
OTHERS
COURT OF APPEAL.
SALEEM MARSOOF. PC. J. (P/CA).
SRISKANDARAJAH. J.
CA NO. 796/2002.
JANUARY 13. 2005.
Writ of Certiorari-Extensions of service granted to Medical Officer by theUniversity Grants Commission (UGC) challenged – University MedicalOfficer not entitled to be treated as a teacher for the purposes of extensionof service – Sections 2,34,35 and 36 of Ceylon University Ordinance 20 of1942, Section 6 of General Act No. 1 of 1945, Section 99 of HigherEducation Act ?0 of 1966, Sections 81(1) and 81(7) of the University ofCeylon Act i oi ,9'ik- and Sactionc 7i(i). 72(2), 73, 75, 79, 89m, 141 and147 of the Universities Act 16 of 1978 – Futility – Laches – Acquiescence-Finality Clause in Section 87 of the University Act of 1978 – Quad approbonon reprobo – expressio unius exclusio alterious.
The 4th respondent was appointed as a Medical Officer to be attachedto the Health Centre of the University of Sri Lanka, Peradeniya in 1986 andelevated as Chief Medical Officer in 1989. In 1995, before reaching her55th year, she applied for an extension of service until she completed theage of 65 year .. T*e UGC recommended to the Council of the PetitionerUniversity to grant the 4th respondent an en bloc extension until shereaches the age of 60 years. Thereafter, while the 4th respondent wasonly 56 years old the 6th respondent granted a further extension until shereached the age of 65 years “as in the case of teachers in terms of Section141 of the Universities Act". The 5th respondent, a Senior Medical of thePetitioner University challenged the validity of these extensions before theUniversity Services Appeals Board (USAB). The USAB refused to quashthe extensions ''f service. The Petitioner University sought to quash theorders granting extension.
It was contended by the respondents that there was delay on the part ofthe petitioner to seek prerogative writ remedy.
It was further contended on behalf of the 1st – 3rd, 4th and 6threspondents, that the 4th respondent was entitled to continue in serviceuntil the age of 65, as if she was a teacher in terms of Section 6 of theGeneral Act No. 1 of 1945. Preliminary objections were also raised by the
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respondents on grounds of laches, acquiescence and in terms of theFinality Clause in Section 87 of the University Act of 1978.
Two days before the date fixed for judgment, a motion was filed by theAttorney-at-Law for the UGC, the 6th respondent stating that the 4threspondent had informed the UGC that she had resigned her post asChief Medical Officer with effect from 1st September 2004, and thereforethe matter will be rendered futile, by the acceptance of the resignation.
HELD: (1) It is the prolonged proceedings before the USAB and thetwo years that had lapsed since the institution of thiscase in the Court of Appeal that have prevented the issuebeing judicially determined. The decision of the SupremeCourt in Centre for Policy Alternatives and Others vs.Dayananda Dissanayake and Others,(!> is relevant to thisapplication and consequently the matter will not be•rendered futile solely by the acceptance of theresignation.
(2) Section 6 of the General Act No. 1 of 1945 was a statutespecific subsidiary legislation and ceased to beapplicable with the repeal of the Ceylon UniversityOrdinance. In any event, the said Act only provided foi amaximum retirement age of 60 years and the 4threspondent was not entitled to continue in service untilthe age or 65. •
S99 (1) of the Higher Education Act No. 20 of 1966 only gives employeesof the University of Ceylon, Peradeniya the 'privilege of retaining their rights.As the 4th respondent was not an employee of the "old University"established by the 1942 Ordinance, she cannot have any claim to suchrights.
S81 (7) of the University of Ceylon Act of 1972 did not have the effect ofpreserving for posterity the provisions of Section 6 of the General Act No. 1of 1945 or any other statute, ordinance oi rule made under the CeylonUniversity Ordinance of 1942. Section 81(7) “preserved only those ruleswhich were made under the provisions of Act No. 20 of 1966".
There is no doubt that the 4th respondent was clearly not a teacher andnot entitled to be considered a teacher within the meaning of the UniversityAct of 1978.
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University of Peradeniya vs. Justice D. G. Jayalath, Chairman 339
University Services Appeals Board and Others (Saleem Marsoof, J.)
Per Saleem Marsoof. J (R/CA):
"It is also important to note that the term ‘teacher’ is defined in Section79, Section 89 of the Universities Act of 1978 to include Librarian, DeputyLibrarian and Assistant Librarian. But there in no mention of MedicalOfficers, Senior Medical Officer or Chief Medical Officer in the definition. Ithink this is eminently a situation wherein the Maxim “expressio uniusexclusio alterius” should apply”.
The legality of the purported extensions granted to the 4threspondent has to be determined in the context of Section 75 ofthe Universities Act of 1978, which provides that the holder of anypost other than that of teacher shall continue in office until hecompletes his 55th year and shall thereafter be deemed to havevoluntarily retired from service, unless, extensions of service aregranted “for a period of one year at a time until he completes his60th year, and shall thereafter deemed to have retiied”.-
Per Saleem Marsoof. J (P/CA)
“The purported extensions of service granted by the 6th respondent,UGC, which were en bloc and until the age of 65 years, are ultra vires thepowers of that Commission, and the decision of the University ServicesAppeals Board is erroneous”
Held further:
Section 87 of the Universities Act of 1978 does not exclude orseek, to exclude the jurisdiction of this Court, as it is not couchedin the language of ouster clauses and signifies nothing morethan finality within the University system, i. e. there is no furtherappeal to any other University body, or the UGC or the Minister.Even if it were not so, preclusive clauses are generally interpretedstrictly, and in the absence of clear language in Section 87manifesting an intention to deprive a Court Of jurisdiction, thecontrary will not be presumed, and the objection based on thefinality clause had to be overruled.
Per Saleem Marsoof. J (P/CA)
“However having recommended the extensions of service in questionand justified the same in the proceedings before the USAB, and havingkept the 4th respondent in service without demur, the Petitioner Universitycannot now make a U-turn and seek the quashing of the extensions granted
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to the 4th respondent and the refund of the emoluments paid. The conductof the University violates the maxim ' quad approbo non reprobo'. In viewof the acquiescence the Petitioner University is not entitled to any of therelief prayed for by it".
Held further:
When no time limit is specified for seeking prerogative writremedy, this Court has ample power to condone delays, wheredenial of a prerogative writ is likely to cause great injustice. As theimpugned orders P4 and P5 were altogether ultra vires, the meredelay in invoking the jurisdiction of Court would not defeat theapplication for relief. Preliminary objection on delay overuled.
Cases referred to :
Mendis, Fowzie and others vs. Goonawardena and G P. A Silva(1978-79) 2 Sri LR 322.
Centre for Policy Alternatives and others vs. DayanandaDissanayake and others (2003) – 1 Sri LR 277.
Punchi Singho vs. Perera – 53 NLR 143
Sudhakaran vs. Bharathi (1989) – 1 Sri LR 46
Watson vs. Winch (1916) 1 K. S. 689
Sannasgala vs. University of Kelaniya and Members of theUniversity Senate (1991) 2 Sri LR 193.
Biso Menika vs. Cyril de Alwis (1982) 1 Sri LR 368
Wickramasinghe vs. Ceylon Electricity Board and Another (1982)2 Sri LR 608
Viswalingam vs. Liyanage (1983) 1 Sri LR 205
8. Sirisena Cooray vs. Tissa Dias Bandaranayake (1999) 1 Sri
LR 1.
APPLICATION for a Writ of Certiorari.
Nirmalan Wigneswaran SC for Petitioner
Sajeewa Jayawardane with P.Gunaratne for 1st – 3rd respondents
Anil Silva for 4th respondent
S. S. Sahabandu PC with A. P. Niles and I. R. Rajapakse for 5threspondent.
A. C. S. Dewapura for 6th respondent.
Cuv. adv. vult.
January 13, 2005
SALEEM MARSOOF J. (P/CA)
The Petitioner in this case is the University of Peradeniya, which isthe successor to the University of Ceylon, Peradeniya, the first everuniversity to be established in this country. The University of Ceylon,Peradeniya was incorporated by the Ceylon University Ordinance No.20 of 1942, and the said University continued in existence even after
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the repeal of the Ceylon University Ordinance in terms of transitionalprovisions included in subsequent legislation relating to universitiesenacted from time to time. The 4th and 5th Respondents wererespectively the Chief Medical Officer and the Senior Medical Officerof the Petitioner University, and the bone of contention between themwere the two extensions of service purported to be granted to theformer by the 6th Respondent University Grants Commissions by itsletters dated 15th February 1996(P4) and 4th July 1996(P5) the validityof which were challenged unsuccessfully by the 5th Respondent beforethe University Services Appeals Board. The Petitioner University filedthis application on 18th April 2002 praying inter-alia for
a mandate in the nature of certiorari quashing the decision ofthe University Services Appeals Board (consisting of the 1st,2nd and 3rd respondents) made in USAB case No. 551 on26th February 2002 (P9); and
a mandate in the nature of certiorari quashing the twoextensions of service purported to be granted to the 4threspondent by the 6th respondent University GrantsCommission by its letters dated 15th February, 1996(P4) and4th July, 1996 (P5) respectively.
Through prayer(e), the Petitioner also sought a consequential orderdirecting the 4th respondent to return to it the salaries and allowancesreceived by the 4th respondent since 26th February, 1995. The 5threspondent is the Senior University Medical Officer attached to thePetitioner University who lodged the appeal bearing No. 551 in theUniversity Services Appeal Board against the decisions of the 6threspondent University Grants Commission to give the 4th respondentthe aforesaid extension of service.
This case is connected to CA application No. 705/2002 filed by the5th respondent on 4th April, 2002 seeking to have the aforesaid decisionof the University Services Appeal Board quashed by certiorari and furtherseeking a writ of prohibition igainst the University of Peradeniya andthe University Grants Commission restraining them from continuingthe services of the 4th respondent as the Chief Medical Officer of theUniversity of Peradeniya. The preliminary objections taken up in bothcases were argued together and disposed of by the order of this Courtdated 10th June, 2003, which dismissed the applications upholdingsome of the said preliminary objections taken up by some of therespondents. Applications were then filed in the Supreme Court by the
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Petitioners in both cases seeking special leave to appeal against thesaid order of this Court, and by its order dated 24th September, 2003the Supreme Court decided to send both cases back to the Court ofAppeal for rehearing. The Supreme Court also observed that “it is prudentthat these matters, namely CAApplication 796/02 and 705/02 be dealtwith separately. The connected case CA Application No. 705/2002was therefore not taken up for argument along with this case, and willbe heard separately.
Preliminary ObjectionsWhen this case was taken up for argument on 22nd July 2004,learned Counsel for the 1st to 3rd Respondents, the 4th respondentand the 6th respondent took up the following preliminary objections :
Can the Petitioner maintain this application in view of the delayin invoking the jurisdiction of this Court for more than 6 1/2years from the dates of P4 and P5?
Can the Petitioner maintain this application in view of theacquiescence of the Petitioner of allowing the 4th respondentto work in the Petitioner University for more than 6 112 years.
Can the Petitioner maintain this application having supportedthe validity of the appointment of the 4th respondent in thepleadings before the University Services Appeals board?
Can the Petitioner maintain this application in view of the finalityclause in Section 87 of Act No. 16 of 1978 read with Section22 of the Interpretation Ordinance?
After hearing submissions of Counsel in respect of these preliminaryobjections, Court indicated that it was inclined to consider theseobjections along with the merits of the substantive application for thereason that these objections involved mixed questions of fact and law.Court then proceeded to hear submissions of Counsel in full on thepreliminary objections as well as on the substantive questions arisingin the case on that date as well as on 29th July, 2004, and havingpermitted Counsel to file written submissions, reserved judgment for27th September, 2004. As the judgment was not ready on that date,the pronouncement of judgment was postponed for 15th October, 2004.
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The Question of FutilityTwo days prior to the date fixed for the delivery of the judgment,namely on 13th October, 2004, a motion was filed by the Attorney-at-Law for the 6th respondent (without notice to the other parties to thecase) stating that the 4th respondent had informed the 6th respondentUniversity Grants Commission in writing that she had resigned fromher post as Chief Medical Officer of the Petitioner University with effectfrom 1 st September, 2004. Along with the said motion, true copies ofthree letters were also produced, from which it appears that on 31stMay, 2004 the 4th respondent has written to the Vice Chancellor ofthe Petitioner University stating that she wished to resign from thepost of Chief Medical Officer with effect from 1st September, 2004,and that the said letter was considered by the University Council whichdecided at its 327th, meeting held on 24th July, 2004, to accept thesaid resignation without prejudice to the rights of parties in this caseand subject to the recovery of outstanding dues, if any, with effectfrom 1st September, 2004. It also appears that the said decision ofthe University Council was conveyed to the 4th respondent by theVice Chancellor of the Petitioner University by his letter dated 30thAugust, 2004, and these developments were notified to the 6threspondent University Grants Commission by the 4th respondent byher letter dated 4th October, 2004.
In view of these developments, judgment was not delivered on 15thOctober, 2004, but instead the case was mentioned in open Court.The parties were directed by Court to file Written Submissions on orbefore 4th November, 2004 in regard to the question whether theapplication filed by the Petitioner University has been rendered futileby the acceptance by the 6th respondent Commission of the resignationof the 4th respondent. When this case was mentioned on 4thNovember, 2004, the Petitioner University was not represented byCounsel, nor any written submissions filed on its behalf, learnedPresident’s Counsel for the 5th respondent informed court that he hasalready filed his written submissions relating to the question of futilityin the Court Registry. Although learned Counsel for the 1st to 3rdrespondents and the 4th respondent informed Court on the sameoccasion that their written submissions will be filed in the Court Registryin the course of the day, it does not appear that any written submissionshave been so filed by them, in the circumstances, the issue of futilityhas to be considered in the light of the written submissions filed bythe learned President’s Counsel for the 5th respondent without theassistance of the other learned counsel representing the other partiesto this case.
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As pointed out by Vythalingam J in Mendis, Fowzie and Others Vs.Goonawardena and G.P.A. Silva{:)at 356, it is trite law that Certiorari isa discretionary remedy and the Court will not issue a writ if it would befutile to do so. However learned President’s Counsel for the 5threspondent has submitted that the motion dated 13th October, 2004has been filed by the 6th respondent without notice to the other partiesas part of a strategy to prevent a judgment being delivered in thiscase, and in particular emphasized the fact that the resignation of the4th respondent was accepted “without prejudice” to the rights of partiesin this case. It is curious that although the 4th respondent has tenderedher resignation from the post of Chief Medical Officer by the time thiscase was argued before this Court on 22nd July2004 and 29th July,2004, this fact was not brought to the notice of court by the 4threspondent or the Petitioner University, and the belated intimation toCourt of the fact that the 4th respondent had tendered her resignationfrom service lends credence to the submission of learned President’sCounsel.
Be that as it may, it is now necessary to consider whether theacceptance of the resignation of the 4th respondent in fact rendersthese proceedings futile. Learned President's Counsel for the 5threspondent has submitted that the 4th respondent’s resignation doesnot take away the need for a determination on prayer (e) as to whetherCourt should make an order directing the 4th respondent to return to itthe emoluments received by her since 26th February, 1995, and hasfurther submitted that a determination on prayer (e) cannot be madewithout first deciding whether the Petitioner is entitled to the quashingof decision of the University Services appeals Board marked P9 andthe two purported extensions of service marked P4 and P5 as prayedfor in prayers (b) and (c). He has submitted that the 4th respondent'sbelated resignation, tendered by her having enjoyed the fruits of nearlyten years of her impugned extensions of service, does not obviate theneed for a decision on the legality of those extensions. LearnedPresident's Counsel for the 5th respondent further submitted that asthe Petitioner University has placed before court evidence that it wasfacing queries from the Auditor-General regarding the said extensionsand the consequential payment of emoluments, the mere belatedresignation of the 4th respondent does not dispose of the legalconsequences of the said two extensions.
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Learned President's Counsel for the 5th respondent also emphasizedthat this Court is called upon to exercise a supervisory jurisdictionover statutory bodies such as the Petitioner University, the 6threspondent University Grants Commission and the University ServicesAppeals Board comprising of the 1st to 3rd respondents. He hassubmitted that the basis on which the 4th respondent sought to justifyher claim to be allowed to be in service until she completed the age ofsixty-five was that University Medical Officers are entitled in law to betreated as if they are teachers,, which the Petitioner University andthe 5th respondent claims to be a position which is inconsistent withthe provisions of the Universities Act of 1978 and even prior legislationin this regard. He further contends that the 4th respondent has claimedthat she should be treated as a teacher as persons who had served asUniversity Medical Officers in the past had been so treated and allowedto continue until the age of Sixty-five, and that the University ServicesAppeals Board had upheld her claim on the basis of these pastprecedents. He submitted that if the decision of the Appeals Boardmarked P9 is allowed to stand, other University Medical Officers, andcertainly those appointed under the 1972 Act, may use P9 as aprecedent to remain in service until they complete the age of Sixty-five, which could have serious consequences for all the Universitiesgoverned by the Universities Act. He has submitted that as the 4threspondent had not resigned at the time of delivery of the order of theUniversity Services Appeals Board marked P9 is allowed to stand,other University Medical Officers, and certainly those appointed underthe 1972 Act, may use P9 as a precedent to remain in service untilthey complete the age of sixty-five, which could have seriousconsequences for all the Universities governed by the Universities Act.He has submitted that as the 4th respondent has not resigned at thetime of delivery of the order of the University Services Appeals Boardmarked P9, it would be a grave injustice to prevent the parties aggrievedby the said order from having the matter reviewed by this court as theyare entitled to do in law. He submits that if the impugned decision ofthe University Services Appeals Board is allowed to stand, it will havefar-reaching consequences on the cardre position and finances of allthe universities as well as the promotional prospects of universityMedical officers. He submits that the question whether a UniversityMedical Officer ought to be treated as if he or she is a teacher is amatter of public importance, and if this question is determined withcertainty, the judgment of this Court will not be in vain. In my view,there is great force in these submissions.
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Learned President's Counsel for the 5th respondent has also placedreliance on the decision of the Supreme Court in Center for PolicyAlternatives and Others vs. Dayananda Dissanayake and Othersl2>.The decision involved certain Provincial Chief Ministers whoseappointments were challenged on the basis that their nominations werenot valid insofar as their names were not included in the nominationpapers put forward by their respective parties or groups for the provincialCouncil Elections in question. The Chief Ministers had ceased to holdoffice even prior to the granting of special leave to appeal, but leavehad been granted on the basis that the matter was of great publicimportance. The cases on appeal involved the interpretation of theProvincial Councils Elections Act in respect of the question whether aperson whose name was not on the nomination list for the relevantProvincial Council Election could be nominated to fill a vacancy in themembership of the Council that occurred subsequently. The Court ofAppeal had held that such a person could be so nominated. TheSupreme Court disagreed, and noted that if the futility argument wasupheld, the Court of Appeal judgment would be regarded asauthoritative and binding in respect of all future vacancies in ProvincialCouncils and the Commissioner of Elections would be bound to act onthe basis of the said judgment. Hence the Supreme Court held that itwould not be acting in vain in setting aside the judgment of the Courtof Appeal and that it was in the public interest that the procedure forthe filling of such vacancies should be laid down with certainty. TheSupreme Court distinguished the decision in Punchi Singho vs. Pererai3)as a case where the impugned decision or declaration had ceased tobe operative before the litigation commenced. The Court also statedthat the argument of futility would not be upheld where it was the law’sdelays that had caused the apparent futility, in the licensing case ofSundarkaran vs. Bharathi(i). In the present case it should be notedthat it was the prolonged proceedings before the University ServicesAppeals Board and the two years that has lapsed since the institutionof this case in the Court of Appeal that has prevented the issue beingjudicially determined, in fact, in the instant case when setting asidethe decision of another Bench of this court dated 10th June, 2003which upheld the preliminary objections that had been taken by someof the respondents, the Supreme Court has directed that this mattershould be “dealt with and disposed of expeditiously. “ I am of the opinionthat the decision of the Supreme Court in Centre for Policy Alternativesand Others Vs. Dayananda Dissanayake and Others (supra) is relevantto this case, and accordingly hold that the determination of this matter
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would not be rendered futile by reason only of the acceptance of theresignation of the 4th respondent.
Factual MatrixBefore considering the preliminary objections, it is necessary toadvert to the factual matrix as the facts of this case and the applicablelaw have some relevance to a few of the preliminary objections raisedin the case. The substantive dispute that has given rise to this caserevolves around two extensions of service granted to the 4th respondent(Dr. S. P. Amarasiri) by the 6th respondent University GrantsCommission, which itself is a statutory body established by theUniversities Act, No. 16 of 1978. The 4th respondent was appointed asa Medical Officer to be attached to the Health Center of the Universityof Sri Lanka, Peradeniya with effect from 25th October 1986 by theletter dated 23rd February, 1987 (P2), and was elevated to the office ofChief Medical Officer with effect from 2nd May, 1989 by the letter dated17th April, 1989 (P3). It is important to note that the said letters dated23rd February, 1987 (P2) and 17th April, 1989 (P3) were issued by the6th respondent University Grants Commission in terms of Section 71(2)of the Universities Act, No. 16of 1978. Section 71 (2) of the UniversitiesAct empowers the Commission to make appointments of staff to HigherEducational Institutions such as the Petitioner University, and expresslyprovides that the Commission shall, in accordance with the schemesof recruitment and the procedures for appointment prescribed byOrdinance, make the following appointment to the staff of a HigherEducational Institution—
appointment to a post of officer, except where together provisionhas been specifically made under this Act in respect of thatpost ;
appointment to a post other than that of teacher, carrying aninitial salary of not less than rupees nine thousand per annumor such other higher initial salary as the Commissioner mayfrom time to time determine by Ordinance ; and
appointment to such posts as may be prescribed by Ordinance,other than posts of teacher, involving the promotion of theappointee from one grade or class of post to another.”(Emphasis added).
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It is relevant to note that as expressly provided in section 71(1) ofthe Universities Act of 1978, all appointments to the staff of a HigherEducational Institution other than those set out in Section 71(2) haveto be made by the governing authority of such institution, in accordancewith the schemes of recruitment and the procedures for appointmentprescribed by Ordinance. It is clear from the aforesaid provisions thatthe 6th respondent University Grant Commission does not enjoy anypower to appoint teachers to a Higher Educational Institution, whichpower is specifically vested in the governing body of the particularinstitution. The terms “teacher” is defined in Section 79 and 89 of theAct “to include Librarian, Deputy Librarian and Assistant Librarian",but there is no mention of the Medical Officer, Senior Medical Officeror Chief Medical Officer in this definition. Furthermore, if the posts ofSenior Medical Officer or Chief Medical Officer to which the 4threspondent was appointed by the 6th respondent, were posts of teacheror had to be deemed to be posts of teacher, it would follow that herappointment by the 6th respondent University Grants Commission tothese posts would be ultra vires the powers of the said Commissionas such appointments could only have been made by the governingauthority of the relevant University.
It is also significant to note that it is expressly provided in section73 of the Universities Act that “the holder of a post of teacher, who hasbeen confirmed in his post, shall continue in that post until he hascompleted his Sixty-fifth year or if he completes his Sixty-fifth year inthe course of an academic year, until the last day of such academicyear, and shall thereafter be deemed to have retired from service”.However, in regard to categories of persons who are not teachers,section 75 of the Act provides for a different age of retirement, in thefollowing terms :
“The holder of any post, other than that of teacher, shallcontinue in office until he completes his Fifty-fifth year, andshall thereafter be deemed to have voluntarily retired fromservice:
Provided, however, that the holder of any such post mayupon a written request made by him, be given by thecommission or by the governing authority of the HigherEducational Institution to which he is attached, extensionof service for a period of one year at a time until he completeshis Fifth year, and shall thereafter be deemed to have retired.”
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From the above-mentioned provisions of the universities Act it isclear that had the 4th respondent been a teacher or had to be deemedto be a teacher, she need not have applied for an extension of servicebeyond the age of Fifty-five as a teacher would continue to hold officetill the completion of the Sixty-fifty year. The 4th respondent who wouldhave completed the age of Fifty-five on 26th February, 1995 by herletter dated 13th December, 1994 (4R2) addressed to the Secretary ofthe 6th respondent Commission though the Vice Chancellor of thePetitioner University requested an extension of service until shecompletes the age of Sixty-five. The 6th respondent by the letter dated15th February, 1995(P4) addressed to the registrar of the PetitionerUniversity informed him that the Commission at its 435 th meetingheldipn 27th January, 1995 decided to recommend to the Council ofthe Petitioner University to permit the 4th respondent to continue inthe post of Chief Medical Officer “Until she reaches the compulsoryage of retirement of Sixty years without her requesting for extension ofservice annually on completion of Fifty-five years". It is indeed surprisingthat this extension was granted en bloc for 5 years instead of theannual extension contemplated by the Section 75 of the UniversitiesAct, No. 16 of 1978.
Thereafter, when the 4th respondent was still only 56 years old, byhis letter dated 4th July, 1996(P5) the Acting Secretary to the 6threspondent Commission informed the Vice Chancellor of the PetitionerUniversity that the Commission at its 469th meeting decided to permitthe 4th respondent “to continue in service until she completes the ageof Sixty five years as in the case of teachers in terms of Section 141 ofthe Universities Act, No. 16 of 1978”. In this application, the PetitionerUniversity seeks to challenge the legality of the extensions of servicethus granted to the 4th respondent by the said letters marked P4 andP5, which the Petitioner University seeks to have quashed by way ofcertiorari along with the decision of the University Services AppealsBoard dated 26th February, 2002 marked P9 purporting to affirm theaforesaid extension of service. The main issue in the case is whetherthe 4th respondent is entitled to be treated as a 'teacher' for thepurposes of determining the date of her compulsory retirement fromthe Petitioner University.
Is a University Medical Officer a Teacher ?It is relevant to note that the 6th respondent University GrantsCommission as well as the University Services Appeals Board consisting
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of thelst, 2nd and 3rd respondents have taken the view that the 4threspondent is entitled to continue in service until she completes theage of Sixty-five years as in the case of University Teachers in termsof Section 141 of the Universities Act, No. 16 of 1978. This Section isa transitional provision contained in the Universities Act of 1978, andsub-sections (1) and (2) of this Section are of some relevance whenconsidering the case of the 4th respondent whose original appointmentas a Medical Officer to the Health Centre of the University of Sri Lanka,Peradeniya Campus was made by the letter dated 11th February, 1975(P1) prior to the coming into force of the Universities Act, No. 16 of1978.1 therefore quote below sub-Sections (1) and (2) of Section 141of the Universities Act of 1978.
“Subject to the provisions of this Act and of any appropriateInstrument, the following provisions shall apply as from the date ofcoming into operation of this Act.
All Teachers, Officers and Other Employees in the service of theold University on the day immediately preceding the date of cominginto operation of this Part of this Act, who have not reached theirrespective ages of retirement shall be deemed to be Teachers, Officersand Other Employees in the service of such Higher EducationalInstitution as the Commission may determine and shall hold their officeswith as nearly as may be the same status and on the same terms,including terms relating to salaries of wages, the termination ofemployment allowances or other benefits as they had or enjoyed inthe service of the old University.
The Commission may within one year of the date of coming intooperation of this Part of this Act, review the appointments held byTeachers, Officers and Other Employees of the old University whowere in the service of that University on the day immediately precedingthe date of coming into operation of this Part of this Act, and order theabolition of such posts which are found to be superfluous or thetermination of service of such persons as had been appointed to theirrespective post in contravention of the schemes of recruitment whichwere in force at the time when such appointments were made, withdue notice given to them.”
Section 147 of the Universities Act of 1978 has defined the phrase'old University” as used in the above quoted provisions to mean the
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University of Ceylon, established under the University of Ceylon Act,No. 1 of 1972 and renamed as the ‘University of Sri Lanka’ inconsequence of the enactment of the Constitution of Sri Lanka, 1972.It is, however, significant, that this definition did not extend to anyUniversity established under the Higher Education Act, No. 20 of 1966or any previous legislation.
It has been strenuously contended by the learned Counsel for the4th and 6th respondents that insofar as the 4th respondent was anemployee in the service of the ‘old University (that is, the University ofCeylon (after 1972 Sri Lanka), Peradeniya Campus), on the dayimmediately preceding the date of coming into operation of theUniversities Act of 1978, she should be deemed to be a “teacher, officeror other employee” in the service of the Petitioner University ofPeradeniya as admittedly determined by the 6th respondent UniversityGrants Commission in terms of Section 141(1) of the said Act, andshould be deemed to be holding office "with as nearly as may be thesame status and on the same terms, including terms relating to salariesor wages, the termination of employment allowances or other benefits”as she had or enjoyed in the service of the old University. It is furthersubmitted on behalf of these respondents that prior to the coming intooperation of the Universities Act of 1978, the 4th respondent enjoyedparity of status with “teachers” attached to the University of Sri Lanka,Peradeniya Campus. For appreciating this submission, it is necessaryto refer to the Ceylon University Ordinance No. 20 of 1942 andsubsequent legislation relating to Universities and institutions of highereducation as well as subsidiary legislation made in terms of the saidlegislation.
As noted at the very outset of this judgment, the Petitioner Universityis the successor to the University of Ceylon, which was established inPeradeniya under the Ceylon University Ordinance No. 20 of 1942 asamended by Ordinance No. 26 of 1943. Part VIII of the Ceylon UniversityOrdinance dealt with the appointment of teachers and other staff, andSection 2 of this Ordinance defined "teacher” as including Professor,Reader, Lecturer and any other person “imparting instruction”, andobviously did not catch up Medical Officers, whose functions did notinclude teaching or “imparting instruction” to students. Section 34 ofthe Ordinance provided for the appointment of Professor, Reader orLecturer to be made by the University Council after considering therecommendation qf a board of selection constituted as provided inthat Section. Section 35 of the Ordinance provided for the appointment
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of teachers who were not Professors, Readers or Lecturers by theUniversity Council after considering the recommendation of a SelectionCommittee constituted in such a manner as may be prescribed byStatute. Section 36(1) provided that every appointment of a teachermade under Section 34 or Section 35, or of a Registrar or Librarianshall be by “agreement”. Section 36(2) expressly provided that anyagreement entered into with a person who was not an “experiencedperson” shall be entered into on the basis that “any renewal thereofupon the expiration of the probationary period shall be expressed to
be and remain in force until the Teacher, Registrar or
Librarian appointed thereby has completed his Fifty-fifth year, or if hecompletes his Fifty-fifty year in the course of an academic year, untilthe last day of such academic year, and in any such agreement there
shall be expressly reservedan option for the University to
renew the agreement so that it may continue and remain in force untilthe Teacher, Registrar or Librarian has completed his sixtieth year
” None of these provisions expressly dealt with Medical
Officers of the University.
Learned Counsel for the 4th and 6th respondents invited the attentionof Court to Section 6 of the General Act No. 1 of 1945 (6R3), which isa subsidiary legislation enacted under the Ceylon University Ordinance,which provides as follows-
“Section 34 and 36 of the Ordinance (the Ceylon UniversityOrdinance No. 20 of 1942) shall apply to the appointment ofHealth Officers as if they were teachers of the Universityprovided that in place of paragraphs (ii) in Section 34 thereshall be substituted ‘the Dean of the Faculty of Medicine".
Learned Counsel for the 4th and 6th respondents also invited theattention of Court to Section 1 of the General Act No. 1 of 1945 whichdefined the phrase ‘Health Officer’ to mean “The Director of PhysicalEducation, an Assistant Director of Physical Education, or a UniversityMedical Officer”. Although at best the effect of these provisions was toallow a Medical Officer to continue in service till the completion of hissixtieth year, learned Counsel placed reliance on these provisions toshow that Medical Officers were treated on par with teachers withrespect to their tenure of office in the University.
The Ceylon University Ordinance of 1942 was repealed and replacedby the Higher Education Act No. 20 of 1966, in terms of which the
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University established under the 1942 Ordinance was deemed tocontinue as a “transferred” university along with the Vidyodaya andVidyalankara Universities which were established in 1958 under thepurview of the National Council of Higher Education. It was thecontention of the Learned Counsel for the 4th and 6th respondentsthat the Higher Education Act No. 20 of 1966 preserved the rights andbenefits of all employees of the University of Ceylon, Peradeniya,acquired under the 1942 Ordinance in terms of Section 99(1) of theHigher Education Act of 1966. It was contended further on behalf ofthese respondents that Sections 81(1) and 81(7) of the University ofCeylon Act No. 1 of 1972 similarly preserved the rights and benefits ofall employees of ‘old University’, and further kept alive all Statutes,Ordinances and Rules made previously. Learned Counsel for the 4thand 6th respondents contended that Section 141 of the UniversitiesAct No. 16 of1978 also provided for employees of the ‘old University’to retain the same rights and benefits. Accordingly, it was submittedon behalf of these respondents that the 4th respondent is entitled tobe treated on par with a ‘teacher’ for purposes of retirement. It wasfurther contended that as Section 6 of the General Act No. 1 of1945(6R3) was a ‘deeming provision’ which has been thus preservedby the successive legislation on universities and higher educationalInstitutions, it would not be repugnant to Section 74 of the UniversityAct of 1978 which permit employees who are not teachers to beemployed only until a maximum age of Sixty years.
Learned State Counsel appearing for the Petitioner University hassubmitted that the contentions of the 4th and 6th respondents arefundamentally flawed since Section 6 of the General Act No. 1 of 1945is “statute specific” and as such will not survive the repeal of the 1942Ordinance under which it was made; that in any event, the said GeneralAct contemplated a maximum age of retirement of Sixty years; thatthe 1966 Act which repealed the 1942 Ordinance including Section 6of the General Act No. 1 of 1945; and that in any event, the 1966 Actdid not provide for any by laws passed under the 1942 Ordinance to bepreserved and that Section 6 of the General Act No. 1 of 1945 thereforehas not survived the legislative interventions since 1966.
I have no difficulty with the submission that Section 6 of the GeneralAct No. 1 of 1945 was statute specific. This by law, on which so muchreliance is placed by the 4th and 6th respondents merely providedthat-
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1 “Section 34 and 36 of the Ordinance (1942 Ordinance)shall apply to the appointment of Health Officers as if theywere teachers”
Thus the moment the parent legislation the Ceylon UniversityOrdinance of 1942 was repealed, the above quoted by law becamenugatory as it specifically related to two Sections found in the parentlegislation which were repealed. As Maxwell on The Interpretation ofStatues, 10th Edition at Page 406 affirms-
“When a by law is made under an Act, the repeal of theAct abrogates the by law unless the by law is preserved bythe repealing Act (Watson Vs. Winch <5))
It is significant to note that there is no provision in the HigherEducation Act No. 20 of 1966 which repealed and replaced the CeylonUniversity Ordinance of 1942. As pointed out by the learned StateCounsel, Section 99(1) of the 1966 Act only gives the employees ofthe ‘Old University’ (that is, the University of Ceylon, Peradeniya)the privilege of retaining their rights. As the 4th respondent was not anemployee of the ‘Old University’ established by the 1942 Ordinanceshe cannot have any claim to such rights and privileges. Section 6(3)(b) of the Interpretation Ordinance No. 21 of 1901, as subsequentlyamended, only protects rights already acquired under the repealedAct. As the 4th respondent was not in service in 1966 at the time therepeal took place, she cannot avail herself of this provision. Furthermore,Section 36 of the 1942 Ordinance, which is specifically referred to inSection 6 of the General Act No. 1 of 1945, provided for a maximumretirement age of sixty years, and as such even had the 4th respondentbeen an employee of the University established under the 1942Ordinance, she would not have any right to continue in service aftercompleting sixty years.
Learned Counsel for the 4th and 6th respondents however rely oncertain transitional provisions contained in the University of CeylonAct No. 1 of 1972, and in particular Section 81(7) of the said Act,which provides that-
“All statutes, ordinances and rules made by theAuthorities of the Old Universities and the National Councilof Higher Education shall be deemed to be statutes,Ordinances and rules made by the University."
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However, it is noteworthy that the phrase ‘Old University’ is definedin Section 87 of the 1972 Act to signify "any University established ordeemed to be established under the Higher Education'Act No. 20 of1966” and does not include a reference to the University of Ceylon,Peradeniya, which was established under the Ceylon UniversityOrdinance of 1942. It cannot therefore be said that Section 81(7)of the U niversity of Ceylon Act of 1972 had the effect of preservingto posterity the provisions of Section 6 of the General Act No. 1of 1945 or any other statute, ordinance or rule made under theCeylon University Ordinance of 1942. In fact, Section 81(7) of the1972 Act was considered by the Supreme Court in Sannasagala Vs.University of Kelaniya and Members of the University Senate<6> whereit was conclusively held that the said section only kept alive those bylaws made under the1966 Act. Kulatunga J made the following pertinentobservation at page 200 of his judgment in that case-
“ On the question of the interpretation of Section 81 (7)of Act, No. 1 of 1972,1 agree with the opinion of the Courtbelow that it only contemplates rules made after the cominginto operation of Act, No. 20 of 1966. That interpretation isin accord with the plain meaning of words used in theenactment. If as submitted by Counsel Parliament intendedto resuscitate the rules made even prior to the enactmentof Act No. 20 of 1966 Parliament would have employedwords which are clear and unambiguous. In the absence ofsuch language I hold that Section 81 (7) preserved only thoserules which were under the provisions of Act, No. 20 of1966”
I am in respectful agreement with the view expressed by the SupremeCourt in this case, and hold that Section 6 of the General Act No. 1 of1945 is no more in force.
The legality of the purported extensions granted to the 4th respondenthas to be determined in the context of Section 75 of the UniversitiesAct of 1978 which, as noted earlier in this judgment, expressly providesthat the holder of any post, other than that of teacher, shall continue inoffice until he completes his Fifty-fifth year, and shall thereafter bedeemed to have voluntarily retired from service, unless the 6thRespondent University Grants Commission or the governing authorityof the Higher Educational Institution to which he is attached, grantsextensions of service “for a period of one year at a time until he completes
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his Sixtieth year, and shall thereafter be deemed to have retired." Asalready noted, the fact that after the enactment of the Universities Actof 1978, the 4th respondent was appointed to the posts of SeniorMedical Officer and Chief Medical Officer by the 6th RespondentUniversity Grants Commission and not by the governing authority ofthe Petitioner University is significant in the context of Section 71 interms of which the 6th Respondent University Grants Commissiondoes not enjoy any power to appoint teachers to a higher educationalinstitution, which power is specifically vested in the governing body ofthe particular institution. Accordingly, if the posts of Senior MedicalOfficer or Chief Medical Officer, were posts of teacher or had to bedeemed to be posts of teacher, it would follow that her appointment bythe 6th Respondent University Grants Commission to these posts wouldbe ultra vires the powers of the said Commission.
It is also important to note that the term teacher' is defined inSections 79 and 89 of the Universities Act of 1978 “to include Librarian,Deputy Librarian and Assistant Librarian", but there is no mention ofMedical Officer, Senior Medical Officer of Chief Medical Officer in thisdefinition. I thjnk this is eminently a situation wherein the maximexpressio unius est exclusio alterius should apply. This means thatexpression or mention of one thing means the exclusion of the otheror others not mentioned. The fact that in the definition of 'teacher'Librarian, Deputy Librarian and Assistant Librarian are expresslymentioned but Medical Officer, Senior Medical Officer and Chief MedicalOfficer are nor mentioned would militate in favour of the argument thata Medical Officer is not a teacher. In any event, on a functional basisit is not possible to regard a Medical Officer, Senior Medical Officer orChief Medical Officers as a ‘teacher’ since such an officer is attached,as the4th respondent was, to a Health Centre or similar unit of a HigherEducational Institution which plays no part in the process of teaching.
I have therefore no doubt in my mind that the 4th respondent wasclearly not a teacher and not entitled to be considered a teacher withinthe meaning of the Universities Act of 1978. It will follow that the enblock extensions purported to be granted by the 6th RespondentCommission to the 4th Respondent by P4 and P5 are clearly ultravires the provisions of the Universities Act of 1978, and the decision ofthe University Services Appeals Board marked P9 is not correct.
The Question of Delay
Learned Counsel appearing for the 1 st to 3rd Respondents, the 4thRespondent and the 6th Respondent have submitted that the Petitioner
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University is not entitled to maintain this application in view of thedelay in invoking the jurisdiction of this Court for more than 61/2 yearsfrom the dates of P4 and P5. While the Petitioner has filed the applicationon or about 18th April, 2002, the two extensions of service granted tothe 4th Respondent by P4 and P5, which the Petitioner seeks tochallenge by way of certiorari in these proceedings, are datedrespectively 15th February 1995 and 4th July 1996. In thecircumstances it has been stressed that delay defeats equity, andcertiorari being equitable relief which is granted at the discretion ofCourt, the Petitioner in not entitled to relief by reason of its delay.While several decisions of our Courts were cited by Counsel in supportof this submission, special emphasis was placed on the followingdictum of Sharvananda J (as he then was) in Biso Mertika Vs. Cyril deAlwis (7)at 378.
“The proposition that the application for Writ must besought as soon as inquiry is caused is merely an applicationof the equitable doctrine that delay defeats equity and thelonger the injured person sleeps over his rights without anyreasonable excuse the chances of his success in a Writapplication dwindle and the Court may reject a Writapplication on the ground of unexplained delay”.
Learned State Counsel appearing for the Petitioner has contendedthat the Petitioner University has not been guilty of undue andunexplained delay. He has emphasized that by P4, the 6th RespondentCommission purported to grant the 4th Respondent an extension ofservice till she completes sixty years of age, viz till 26th February,2000, and by P5 the 6th Respondent purported to give the 4thRespondent a further extension till she completes Sixty-five years ofage, viz till 26th February 2005, but these purported extensions werechallenged by the 5th Respondent in USAB Appeal No. 551 filed in theUniversity Services Appeals Board on 2nd January, 2000. He has furtherpointed out that the preliminary objection raised before the AppealsBoard on the basis that the appeal was time barred were overruled bythe Appeals Board which by its order dated 26th February, 2002 markedP9, affirmed the extensions purported to be granted by P4 and P5 onthe basis that the 4th Respondent ought to be treated as if she was ateacher, the Petitioner University filed this application in the Court ofAppeal on or about 18th April, 2002 little more than one month afterthe said order marked P9. In the circumstances, he has submittedthat there is no undue delay, and that the alleged delay with regard to
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P4 and P5 on the basis that the 4th respondent ought to be treated asif she was a teacher, the Petitioner University filed this application inthe Court of Appeal on or about 18th April, 2002 little more than onemonth after the said order marked P9 decided to exercise its discretionunder Rule 6 of the USAB Rules and entertained the appeal despite itbeing lodged after the expiry of three months from the date of theimpugned decisions P4 and P5 as required by Rule 3. Learned StateCounsel has submitted that the University Services Appeal Board, byits order dated 26th February, 2002 marked P9, affirm the extensionspurported to be granted by P4 and P5 on the basis that the 4th■ respondent ought to be treated as if she was a teacher, the Petitioner- University filed this application in the Court of Appeal on or about18th April, 2002 little more than one month after the said order markedP9. In the circumstances, he has submitted that there is no unduedelay, and that the alleged delay with regard to P4 and P5 wasconsidered by the University Services Appeal Board, which decided toentertain the appeal having considered the importance of the issueinvolved. Learned State Counsel further submitted that while the periodof service contemplated by the extension purported to be granted byP4 came to an end on 26th February, 2000, the period of extendedservice contemplated by P5 would commence only on 27th February,2000, and thus the appeal filed in the University Services AppealsBoard on 2nd January, 2000 cannot be said to be belated. He furthersubmitted that as the said appeal was determined only on 26thFebruary, 2002(P), there was no undue delay in invoking the jurisdictionof this Court.
One consideration that militates against the Petitioner University inregard to the question of delay is that the appeal before the UniversityServices Appeals Board was lodged by the 5th respondent and not bythe Petitioner. In fact, the Petitioner University did not initially supportthe 5th respondent in her crusade against the 4th respondent. In thosecircumstances, how far the Petitioner University can rely on thechallenge initiated by the 5th respondent is questionable. However, asa matter of law, learned State Counsel has invited our attention tocertain dicta in the Biso Menika Judgment which have sought to explainthe underlying principles with regard to delay most succinctly. He placesconsiderable reliance on the following dictum of Sharvananda J at 379-
“When the Court has examined the record and is satisfiedthat the Order complained of is manifestly erroneous or
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without jurisdiction the Court would be loathe to allow themischief of the order to continue and reject the applicationsimply on the ground of delay, unless there are veryextraordinary reasons to justify such rejection. Where theauthority concerned has been acting altogether without basicjurisdiction, the Court may grant relief in spite of the delayunless the conduct of the party shows that he has approbatedthe usurpation of jurisdiction. In any such event, theexplanation of the delay should be consideredsympathetically." (Emphasis added)
There does not exist in Sri Lanka any statutory provision or rule ofCourt that sets out a time limit within which a petition for the issue ofa prerogative writ must be filed. However, a rule of practice has grownwhich insists upon such petition being made without undue delay.When no time limits is specified for seeking such remedy, the Courthas ample power to condone delays, where denial of a prerogative writto the petitioner is likely to cause great injustice. As Sharvananda Jobserved in the Bisomenika case, the Court may in its discretionentertain the application for writ in spite of the fact that a petitionercomes to Court late, especially where the order challenged is a nullity.While I am in agreement with the submission of learned State Counselthat where the impugned orders are altogether ultra vires, as P4 andP5 are in this case, the mere delay in invoking the jurisdiction of Courtwould not defeat the application for relief, I am inclined to the view thatas observed by Sharvananda J in the above quoted dictum, the conductof the Petitioner University should also be taken into consideration. Inote that as far as P9 is concerned, there is absolutely no delay asthe Petitioner has come to Court less that two months from the date ofP9. Indeed had the Petitioner sought to invoke the jurisdiction of thisCourt prior to the conclusion of the proceedings before the UniversityServices Appeals Board, this Court may have refused notice on theground that the said appeal was pending despite the fact that theappellate proceedings had been initiated by the 5th respondent andnot the Petitioner University. Having carefully weighed the submissionsmade on behalf of all the parties in regard to the question of delay, Iam inclined to overrule the preliminary objection taken up on behalf ofthe 1 st to 3rd respondents, the 4th respondent and the 6th respondenton the ground of undue delay, subject to the other issue ofacquiescence which the second and third preliminary objections giverise to.
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The Question of AcquiescenceThe second and the third preliminary objections take up by thelearned Counsel appearing for the 1st to 3rd respondents, the 4threspondent and the 6th respondent raise the question of acquiescenceon the part of the Petitioner University. The second preliminary objectionis that the Petitioner University is not entitled to maintain thisapplication on account of its own conduct of allowing the 4th respondentto work in the Petitioner University after she completed Fifty-five yearsof age on 26th February, 1995. Indeed, the 4th respondent hascontinued to be in the service of the Petitioner University even afterthat date on purported extensions of service recommended by theUniversity Council, and had been paid all salaries and allowances andprovided with all perquisites and benefits until 1st September, 2004,which was the effective date from which the University Council decidedat its 327th meeting held on 24th July, 2004, to accept her resignationfrom service without prejudice to the rights of the parties in this case.Having so voluntarily kept the 4th respondent in service beyond herFifty-fifth birthday, the Petitioner University in a remarkable turn ofevents has now filed this application seeking to have the purportedextensions of service granted to her quashed, and has expressly prayedfor the refund to the said University of all emoluments paid to the 4threspondent since 26th February, 1995. The later prayer isunconscionable to say the least, considering the fact that the 4threspondent had in fact served the Petitioner University for nearly tenyears beyond her age of voluntary retirement to the apparent satisfactionof the University. To grant the relief prayed for by the PetitionerUniversity and compel the refund of all emoluments paid to the4threspondent after she completed fifty-five years of age, would violatethe rule against unjust enrichment, as the Petitioner University isobviously not in a position to return to the 4th respondent the servicerendered by her. Indeed, it is trite law that Court will not exercise itsdiscretion to grant prerogative relief such as certiorari to an applicantwho has conducted himself in such a manner as to disentitle him or itto relief. As L. H. de Alwis J observed in Wickramasinghe Vs. Ceylon
Electricity Board and Another 613 “ certiorari is a
discretionary remedy and this Court has the power to withhold it if itthinks fit. This Court will do so in the case of an unmeritorious petitioner
’’ There is no merit in the Petitioner’s contention that the
extensions of service granted to the 4th respondent should be quashedand the status quo ante restored, when the extensions in questionwere granted on the recommendation of the Council of the PetitionerUniversity.
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The third preliminary objection raised by the learned Counsel forthe 1st to 3rd respondents, the 4th respondent and the 6th respondentis that the Petitioner University, having supported the validity of theappointment of the 4th respondent in the pleadings before the UniversityAppeals Board, is precluded thereby from challenging the validity ofP4 and P5 which purported to grant the impugned extensions in service,and the finding of the Appeals Board contained P9 to the effect thatthe 4th respondent “is legally entitled to be in service as a teacheruntil the retirement age of 65”. This objection stems from the fact thatthe Petitioner University did not appeal against the extension grantedto the 4th respondent by P4 and P5 and that when it was appealedagainst by the 5th respondent, the Petitioner tendered a writtenstatement under the hand of the Vice Chancellor of the PetitionerUniversity dated 16th July, 2000 (included in the document markedP6) in which submissions were made justifying the extension ofservices of the 4th respondent up to her Sixty-fifth year. In this letterthe Vice Chancellor of the Petitioner University stated as follows:
“However, it is particularly relevant to note that ananomalous situation exists whereby a section of the MedicalOfficers in the University service are permitted to work tillthey reach the age of 65 years while another section retireat the age of Sixty years. This would undoubtedly give riseto a sense of grievance and a perception of absence of fairplay among those who have to retire at an earlier age. If allUniversity Medical Officers without exception were to beallowed to continue in service till they complete 65 years ofage as in the case of teachers, it would rectify anomalies inthe present situation and remove grievances arising fromwhat is clearly being perceived as unfair treatment.” .
Learned State Counsel has stressed that the Vice Chancellor of thePetitioner University is distinct from the Petitioner University itself,which has its separate legal identity, and emphasized that utmostcaution should be exercised in the determination of the rights of aPublic Authority such as the Petitioner University, which should notbe jeopardized by an erroneous evaluation of the law by its officers orperhaps even by collusion between officers and others. Whileappreciating these sentiments in the context of favoritism anddiscrimination which has now become the order of the day, it is notpossible to condone the objective conduct of the Petitioner Universitywhich should take the blame for the actions of its officers. The Petitioner
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University cannot have it both ways. Having recommended theextensions of service in question and justified the same in theproceedings before the University Services Appeals Board, and havingkept the 4th respondent in service without demur, the PetitionerUniversity cannot now make a U-turn and seek the quashing of theextensions granted to the 4th respondent and the refund of theemoluments paid other. The conduct of the University violates themaxim quad approbo non reprobo (no person can accept and rejectthe same thing). As Sharvananda J (as he then was) explained inVisvalingam Vs. Liyanagel9) 231 –
A person cannot adopt two inconsistent positions, hecannot affirm and disaffirm, he is presumed to waive oneright and elect to adopt the other. This doctrine of waiverlooks chiefly to the conduct and position of the person whois said to have waived in order to see whether he has“approbated”, so as to prevent him from reprobating-whetherhe has elected to get some advantage to which he wouldnot otherwise have been entitled, so as to deny-him a laterelection to the contrary."
Clearly, the Petitioner University has sought to rectify the alleged“anomaly” of having two categories of Medical Officers in the sameUniversity, one retiring at sixty and the other at Sixty-five, ende avouringto persuade the University Services Appeals Board that all UniversityMedical Officers should be treated on par with University Teachers,and had availed itself of the services of the 4th respondent beyond hervoluntary as well as the compulsory ages of retirement, and havingelected to take these advantages the Petitioner University cannot nowseek to put the clock back and turn a new leaf on a purely legalisticbasis. The second and third preliminary objections have therefore tothe upheld.
The Finality Clause
The fourth preliminary objection take up in this case was based onthe finality clause in Section 87 of the University Act No.16 of 1978read with Section 22 of the interpretation Ordinance No. 21 of 1901 asamended by act No.18 of 1972. Section 87 of the University Act readsas follows-
“A decision made by the Appeals Board in the exercise,performance and discharge of its powers, duties and functions
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under Section 86 shall be final, and where remedial actionhas to be taken in consequence of such a decision, theChairman of the Commission or the governing authority ofthe Higher Education Institutional concerned, as the casemay be, shall implement such decision.”
Section 22 of the Interpretation Ordinance which provides inter aliaas follows:-
“Where there appears in any enactment, whether passed or madebefore or after the commencement of this Ordinance, the expression“shall not be called in question in any court" or any other expression ofsimilar import whether or not accompanied by the words “whether byway of writ or otherwise” in relation to any order, decision, determination,direction or finding which any person, authority or tribunal is empoweredto make or issue under such enactment, no court shall in anyproceedings and upon any ground whatsoever, have jurisdiction topronounce upon the validity or legality of such order, decision,determination, direction or finding, made or issued in the exercise orthe apparent exercise of the power conferred on such person, authorityor tribunal”
Learned Counsel appearing for the 1 st to 3rd respondents, the 4threspondent and the 6th respondent have objected to this'Courtexercising jurisdiction in this case on the ground that the jurisdictionof Court has been shut out by Section 87 of the Universities Act of1978 read with Section 22 of the Interpretation Ordinance. LearnedState Counsel has submitted that judicial review in terms of Article 40of the Constitution is not precluded by the aforesaid provisions for tworeasons. Firstly, he argues that Section 87 of the Universities Act isnot worded in the language of an ouster clause, and that is merelystates that the decision of the University Services Appeals Board shallbe “final". Learned State Counsel points out that Section 87 does notcontain any language to the effect that the decision of the UniversityServices Appeals Board “shall not be called in question in any court"or any other expression of similar import whether or not accompaniedby the words “whether by way of writ or otherwise”. He contends thatthe word “final” in Section 87 therefore signifies nothing more thanfinality within the University system, i.e. there is no further appeal toany other University body, or the University Grants Commission or theMinister. Secondly, he submits that the powers of this Court are derivedfrom Article 140 of the Constitution and cites the decision of the
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Supreme Court in B. Sirisena Cooray Vs. Tissa Dias Bandaranayaker'0)for the proposition that the din proposition that the jurisdiction of thisCourt, insofar as it is derived from the Constitution, cannot be restrictedby provisions of ordinary legislation such as Section 22 of theInterpretation Ordinance.
In my view, it is not necessary for this Court to deal with the secondsubmission of learned State Counsel as the Court has no difficulty inaccepting his first submission that Section 87 does not exclude orseek to exclude the supervisory jurisdiction of this Court.
Even if it was not so, preclusive clauses are generally interpretedstrictly, and in the absence of clear language in Section 87 manifestingan intention to deprive Court of jurisdiction, the contrary will not bepresumed. In the circumstances the preliminary objection based onthe finality clause has to be overruled.
Conclusions:For the foregoing reasons, I hold that the purported extensions ofservice granted to the 6th respondent Commission by P4 and P5 areultra vires the powers of that Commission, and that the decision of theUniversity Services Appeals Board marked P9 is erroneous. However,in view of the acquiescence of the Petitioner University I hold that it isnot entitled to any of the relief prayed for by it, and upholding thesecond and third preliminary objections, dismiss the application filedby the Petitioner without costs.
SRISKANDARAJAH, J. — / agreeExtensions granted ultra vires and erroneous.