DISSANAYAKE AND OTHERS
SUPREME COURTDR. AMERASINGHE, J„
RAMANATHAN, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. 143/95FEBRUARY 7 AND MARCH 25,1997.
Fundamental Rights – Article 12(1) of the Constitution – Transfer of educationalpersonnel senring a Provincial Council – List 1 (Provincial Council List) Appendix
3- Thirteenth Amendment to the Constitution.
The petitioner who was a Class II officer of the Sri Lanka Education AdministrativeService complained that whilst he was in the service of the North CentralProvincial Council on secondment, he was transferred to the Ministry of Educationand Higher Education by the Education Service Board of the Public ServiceCommission in violation of his rights under Article 12(1) of the Constitution in thatinter alia, officers who are so seconded cannot be transferred without theapproval of the Head of the relevant Department of the Provincial Council.
(1) In terms of Appendix III.3. List 1 (Provincial Council List) of the ThirteenthAmendment to the Constitution there are two kinds of officers who are subject tothe power of transfer and disciplinary control of a Provincial Council (1) those who
belong to a National Service but serving a Provincial Council on Secondment (2)those who belong to the Provincial Public Service.
(2) The petitioner did not belong to either class of officer referred to an Appendix
3; he had not been seconded nor was he a member of the Provincial PublicService. He belonged to a third group – those who belong to a National service,but whose services had been made available to Provincial Councils to supportand assist them but not upon the basis of secondment. Persons in the third groupwould remain subject to the powers of transfer and disciplinary control of thePublic Service Commission.
APPLICATION for relief for infringement of fundamental rights.
L. C. Seneviratne, P.C. with Nigel Hatch for petitioner.
Kolitha Dharmawardene, D.S.G. for respondents.
Cur. adv. vult.
April 4, 1997.
DR. AMERASINGHE, J.
In 1960, the petitioner was appointed a Temporary AssistantTeacher at the Maha Bellankadawala Vidyalaya, Anuradhapura, bythe Director of Education, North Central Province. In 1968, he was„appointed a Graduate Assistant Teacher of the WannitammannawaMaha Vidyalaya, Anuradhapura, by the Director of Education, NorthCentral Province. While at that school, in 1982, he was appointed toClass V of the Sri Lanka Education Service by the Education ServicesBoard of the Public Service Commission and, in 1985 he wasappointed to Class III of the Sri Lanka Education AdministrativeService and continued to serve at Wannitammannawa MahaVidyalaya.
The petitioner was appointed to the Deepani Maha Vidyalaya,Anuradhapura and later in February 1990, transferred to theAnuradhapura Division Education Office by the Secretary of the NorthCentral Provincial Council’s Ministry of Education, Health, Transport,and Youth Affairs. On 26 August 1992, while he was serving in theAnuradhapura Division Education Office, the petitioner wasappointed by the Education Service Board of the Public ServiceCommission as a Class II officer of the Sri Lanka Education
Administrative Service. On 26 August 1992, the petitioner wasappointed Deputy Director of Education, Anuradhapura DivisionEducation Office by the Secretary of the North Central ProvincialCouncil’s Ministry of Education, Health etc. On 01 January 1993, thepetitioner was appointed Director of Education, AnuradhapuraEducation Zone, by the Secretary of the North Central ProvincialCouncil’s Ministry of Education, Health etc. but it seems he continuedto function as Deputy Director. On 28 March 1995, the Secretaryof the Education Service Board of the Public Service Commission(the third respondent) wrote to the petitioner stating that he had beentransferred to the Ministry of Education and Higher Education.The fourth respondent was appointed by the Education ServiceBoard of the Public Service Commission to fill the vacancycreated by the transfer of the petitioner. On 10 April 1995 and 20April 1995 the petitioner appealed in writing to the Secretary ofthe Education Service Board of the Public Service Commission. Healso interviewed the Secretary on 12 April 1995. Consequently, theearlier order was varied and petitioner was, by letter dated 06 May1995 issued by the Secretary of the Education Service Board,attached to the North Central Province Education Department,Anuradhapura.
The petitioner alleged that his fundamental rights guaranteed byArticle 12(1) of the Constitution have been violated by his transfer tothe Ministry of Education and Higher Education. The petitioner’s caseis that although he did once belong to the Sri Lanka EducationAdministrative Service, yet when Provincial Councils wereestablished, he was employed by the North Central ProvincialCouncil which appointed him to various posts and paid his salary. Hestates that, in terms of Public Administration Circular No. 25/91 dated03 July 1991, officials released to a Provincial Council would servethat Council for a period of four years; at the end of that period, theofficer was entitled at his request to have his service with the Councilextended. Until such a request was made he could not be transferredwithout the approval of the Head of the relevant Department of theProvincial Council. He had neither requested a transfer, nor had thetransfer been made with the approval of the Head of his Department.On the other hand, the Additional Secretary (Education), on the
directions of the Minister of Education of the Provincial Council, hadobjected to the transfer of the petitioner. The petitioner maintains thatthe Secretary of the Education Service Board had no power totransfer the petitioner and frustrate his legitimate expectation ofserving the North Central Provincial Council.
While it is not in dispute that the petitioner did serve the NorthCentral Provincial Council and was appointed to various posts by thatCouncil, there was no evidence placed before us to show that he hadbeen released to serve the Provincial Council on secondment. All thatthe petitioner has been able to say is that “to the best of hisknowledge and belief he signified his consent to be released to theNorth Central Provincial Council in terms of … Circular 25/91.” Thepetitioner referred to Public Administration Circular 10/89. ThatCircular prescribes the manner and form of release, and he couldhardly be heard to say that he was ignorant of the procedures andrequirements for release to serve on secondment.
If the petitioner had not been released on secondment in terms ofthe prescribed manner to serve in the Provincial Council of the NorthCentral Province, then he would have been subject to the authority ofthe Education Service Board of the Public Service Commission andcould legitimately have been transferred by that Board. If he hadbeen released, as he believed, he might have come under theauthority of the Provincial Council until 23 April 1993. After that date,however, he would, it seems, have been subject to the control of theEducation Service Board even if he had been released onsecondment, for Public Administration Circular No. 56/89 (1) issuedon 23 April 1993 states that to be the case. On the date of the letterintimating his transfer, namely 28 March 1995, the petitioner wassubject to the authority of the Education Service Board of the PublicService Commission in terms of Circular No. 56/89 (1).
However, learned counsel for the petitioner submitted that ifCircular No. 56/89 (1) did permit the Education Service Board “totransfer any officer in the all-island services during their period ofrelease to the Provincial Public Service unilaterally then … thisCircular is contrary to the Constitution which by the 13th Amendment
Provincial Council List has vested the transfer and disciplinary controlof such officers in the Provincial Council. This circular, can only bemade operative if such transfers are made on the recommendation orapproval of the Provincial Public Service or the relevant ProvincialMinistry. Further the question arises whether the consent of the officershould not be obtained if he is to be transferred out of the Provincesince his consent is obtained in respect of his transfer or appointmentto the Provincial Public Service."
The petitioner was neither transferred nor appointed to theprovincial public service, and therefore the question of obtaining hisconsent before he was transferred does not arise. He did serve theNorth Central Provincial Council under some arrangement or on thebasis of some tacit understanding, with regard to which the Courtwas not provided with any information. More importantly, there wasno evidence placed before us to show that the petitioner wasseconded in the manner prescribed by the relevant circulars to theProvincial Council, let alone being transferred or appointed to theprovincial public service. The petitioner continued to be a member ofthe Sri Lanka Education Administrative Service and while he wasserving the Provincial Council was promoted to Class II of thatService by the Education Service Board of the Public ServiceCommission.
Education and Educational Services are indeed placed on List 1(the Provincial Council List) by the Thirteenth Amendment to theConstitution, but there is no unqualified devolution. List 1 states thatthe subject of education is devolved “to the extent set out inAppendix III”. Appendix III.3 states as follows: “The transfer anddisciplinary control of all educational personnel, i.e. Teachers,Principals and Education Officers, Officers belonging to a NationalService but serving the Provincial authority on secondment will havethe right of appeal to the Public Service Commission. Officersbelonging to the provincial public service will have a right to appealto the Public Service Commission against dismissal.”
At first sight, the phrase “all educational personnel” would suggestthat each and every person, without exception, engaged in providingeducational services, whether as a teacher, principal or as aneducation officer, would in terms of Appendix III.3 be subject to thepowers of transfer and disciplinary control of the relevant ProvincialCouncil.
However, the legal meaning of Appendix 111.3 is that there are twokinds of officers who are subject to the power of transfer anddisciplinary control of a Provincial Council: (1) those who belong to aNational Service but serving a Provincial Council on secondment;and (2) those who belong to the provincial public service.A distinction is made between those who belong to a NationalService and serve a Provincial Council on secondment on theone hand, and those who are members of a provincial public service.The former have a right of appeal to the Public Service Commissionin respect of all matters connected with their employment,for, although for the time being they are subject to the powersof transfer and disciplinary control of the Provincial Council theyserve, they are nevertheless members of a National Service comingtherefore within the purview of the Public Service Commission.Those who belong to the provincial public service too have a right ofappeal to the Public Service Commission, but only against anorder of dismissal.
The petitioner does not belong to either class of officer referred toin Appendix III.3: he has not been seconded nor is he a member of aprovincial public service. He belongs, in my view, to a third group -those who belong to a National Service, but whose services havebeen made available to Provincial Councils to support and assistthem but not upon the basis of secondment. Persons in the thirdgroup would remain subject to the powers of transfer and disciplinarycontrol of the Public Service Commission.
In the circumstances, I am of the view that the transfer of thepetitioner was valid and in no way frustrates his legitimateexpectations. The Secretary of the Education Service Board of thePublic Service Commission has adduced evidence to establish thatother officers having the status of the petitioner have also beentransferred and that there has been no invidious discrimination.
For the reasons set out above, I declare that the petitioner’sfundamental rights under Article 12(1) of the Constitution have notbeen violated and make order dismissing the petition; but, havingregard to the important and debatable questions he has raised forconsideration, without costs.
RAMANATHAN, J. -1 agree.
WIJETUNGA, J.-1 agree.
– WEERASINGHE v. DISSANAYAKE AND OTHERS