Wijesiri r. Siriwardene
S.C. 81/81 — C. A. Application No. 2329/80
Writ of Mandamus – locus standi – Minister's discretionary power articles 55 and59 of the Constitution
P is a Member of Parliament. He took up the cause bf 53 dandidateswho were selected for appointment to-Grade II Class II of the Sri Lanka-Administrative Service on the results of an Open Competitive Examinationbut whose letters of appointment were not issued by- the Respondent.
R who was Sec. Ministry of Public Administration contended that theletters were not issued because the Cabinet decided to withhold .themconsequent to a number of complaints that there were certain irregularitiesin the conduct of the examination.
P contended that the letters were not issued because a powerful! Trade 'Union objected that the selectees were not members of their Trade Union.
Held:Per Wimalaratna and Ratwattc J – To apply for a Writ bf Mandamus
it is not necessary to have a personal'interest but it is sufficientif the applicant can show a • genuine-interest in the mattercomplained of and that he comes before Court as a Publicspirited person, concerned to see that the law is obeyed in theinterest of all.
2. That, since the notice calling for applications from candidatescontains a clause reserving to the Minister the right to postponeor cancel examinations or to refrain from filling any .of,thevacancies it would be difficult to impose on him a' duty eitherto fill'the vacaficies or to make appointments of pc'rSbnSsdlectfe’tf.'-
Mandamus will not issue if it will be futile.
Per Wanasundara J. Article 55 of the Constitution precludes, the Court,'from granting relief in the matter.
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Appeal from judgment of theCourt of Appeal
Wanasundera J., Wimalaratne J., and Ratwatte J.
L. deSilva, S/A, with E.D. Wickramanayakeand
Gomin Dayasiri for Petitioner-Appellant.
K.M.M.B. Kulatunga, Addl: S.G with
Suri Ratnapala, S.C.,
for the Respondent – Respondent.
Argued and Decided on: 21st & 22nd January, 1982.Reasons Delivered on: 4th March; 1982.•.
Cur. adv. vult..
We heard Counsel and gave our decision on 22.1.82 dismissingthis Appeal. We now state our reasons.
The Petitioner-Appellant is a Member of Parliament sitting in theOpposition Benches. He has taken up the cause of 53 candidateswho were selected for appointment to class II grade II' of the SriLanka Administrative Service on the results of an open competitiveexamination held in 1979 to fill 30 per cent of the vacancies, butwho were not issued with letters of appointment by the Respondent,who is the Secretary to the Ministry of Public Administration. ThePetitioner invoked the jurisdiction of the Court of Appeal and askedfor a Writ of Mandamus to compel the Respondent to perform whathe calls the public duty of appointing these successful candidates.The Respondent answered that in view of certain allegations madein respect of the holding of the Intelligence Test paper at the NalandaCollege Centre where 162 candidates sat, the Cabinet of Ministersdecided that that paper be cancelled, and that all the candidates berequired to sit that paper once again. In conformity with that decisionhe took steps in November 1980, after informing all the candidates,to hold a fresh Intelligence test paper and selected 248 to face aviva voce test, but before a fresh selection could be made thePetitioner filed the present application, and the vacancies have sofar not been filled.
Wijesiri v. Siriwardene (Wimalaralne ].)
The Court of Appeal dismissed the application with costs, butgranted the Petitioner lpave to appeal to this Court on the followingquestions:-
Whether Petitioner has locus standi to make this application.
, 2. Whether Article 55 (5) is a complete and total bar precludingthis Court from inquiring into or in any manner calling intoquestion, the orders and decisions of the Cabinet of Ministersand the Respondent pertaining to appointment of publicofficers to the Public Service ?
Whether the duty that the Petitioner is seeking to compelis of a public nature and not merely of a private character?
that the Respondent owes a duty to the State in makingappointments and not to the 53 persons.
Whether the Court will not grant the Mandamus because itis futile?
that the Court will not issue a Mandamus if the applicationis not bona-fide made but made with the indirect motive ofassisting the 53 persons.
The facts as are necessary for a determination of these issues arebriefly these: Altogether 2997 candidates sat the written examinationheld on 26.5.79 and comprising papers in general intelligence,comprehension and case study, carrying 200. 100 and 100 marksrespectively. At the Nalanda College Centre some of the candidateshad lodged a complaint that the packet containing the generalintelligence paper had been opened 25 minutes before and not 10minutes before the commencement, and that two candidates whowere accommodated near the table where the papers were openedmay have had an unfair advantage; and some of the candidatesrefused to sit the paper at that centre. However, 248 candidates whohad obtained the required marks in the three written papers werecalled for a viva voce test, and from them 53 were selected, andtheir names were published on the notice board of the Ministry ofPublic Administration on 24.12.79. Letters of appointment were infact prepared to be dispatched to them, but before they were postedthey were intercepted by a Ministry Official and the 53 who wereso near found themselves yet so far, as they never received theirletters of appointment.
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The Petitioner alleges that a trade union, namely the JathikaSevaka, Sangamaya (J.S.S.) affiliated to the government in power .was responsible for the interception of the letters for the reason thatthe majority of the 53 selected were not members of that tradeunion. The respondent however averred that the appointments werenot made because of allegations and counter allegations about theconduct of the examination and not. for the reason alleged by thepetitioner. Subsequently, the Cabinet of Ministers by a decision dated27 8.80 directed that all candidates be called upon to sit a freshpaper in general intelligence, and he took steps accordingly.
The Court of Appeal has found as a fact that the 53 candidateswere not appointed because of suspicion of irregularities in theconduct of the written paper in general intelligence, and not as aresult of pressure from the J.S.S. and that apart from inviting theCourt to draw inferences of bad faith, no reliable material had beenplaced to establish that either the respondent or the Cabinet ofMinisters had acted unlawfully. There is no application to this Courtfor leave to appeal on this finding of fact, but in spite of theAdditional S.G.’s preliminary objection to the petitioner canvassingthe findings of fact, we permitted learned counsel for the petitionerto refer to such facts as may be necessary for a determination oftlie six questions formulated above.
Much of the arguments before us related to the first question, thatis whether the jjetitioner has the locus standi. The Court of Appealhas considered with a great degree of thoroughness the evolution inEnglish Law, of the requirement of locus standi in applications forMandamus – from the earliest decision in the Queen Vs. Guardiansof the Lewisham Union (1.897) 1QB 498, (where the requirementwas the existence in the petitioner of a legal right to the performanceof a public duty) up to the most recent decision in Inland Revenue' Commissioners. Vs. National Federation of Self Employed and SmallBusiness Lid,',' (1981) 2 WLR 722 (where the requirement now isthat the applicant should have sufficient interest in the matter towhich the application relates). Tambiah J.. has discerned from a studyof the decided. cases that two requirements must be satisfied. Theyare (i) that. an applicant for Mandamus must show some interestover and above the interests of the community as a whole or theclass of the community to which he belongs; and (ii) that even wherehe comes forward in the public interest he must be able to show
Wijesiri v. Siriwardene (Wimalaraine J.)
some personal interest in the matter complained of. In his view, thepresent Petitioner, does not satisfy either of these tests. L.H.^deAlwis .!.• has not come to a finding as to whether the petitioner hassatisfied the requirement of a sufficient interest in the performanceof a public duty because in his view the respondent’s duty to appointthese 53 selectees is. not a public duty. There is therefore no decisionby the Court of Appeal on the question as to whether Mr. R.P.Wijesiri M .P. has a sufficient standing to institute these proceedings.
lir s his connection it would be relevant to refer to the. views of^an eminent jurist on the question of locus standi. .Soon-after the•decision of the Privy Council in Durayappah Vs. Fernando =(1967) 3WLR 289. in an Article entitled Unlawful Administrative Action in(1967) 83 L.O.R. 499, H. W. R. Wade expressed the view that oneof the merits of Certiorari is that it is not subject to narrow rulesabout Locus standi, but is available even to strangers, as the Courtshave often held, because of the element of public interest. In otherwords it is a genuine remedy of public law, and all the more valuablefor that reason (at p. 504). As regards the applications for Mandamusthey should, in his view; in principle be no more exacting than itis in the case of the other prerogative remedies, because publicauthorities should be compellable to perform their duties, as a matterof public interest at the,instance of any person genuinely concerned;and* in suitable case, subject always to discretion, the Court shouldbe able to award the remedy on the application of a public spiritedcitizen who has no other interest than a due regard for the observanceof the law- Wade – Administrative Law (4th Ed) 608. The result ofa restrictive doctrine of standing, therefore, would be to .encouragethe government to break the, law; yet this is exactly what theprerogative writs should be able to prevent (p. 609). To restrictMandamus to cases of personal legal right would in effect make ita private law remedy (p 610). These observations, with which ! amin respectful agreement, appear to make the second requirement ,insisted upoh by Tambiah J. i.e.: some personal interest in the mattercomplained ofunnecessary. But the first requirement ought’in riiyview, to be'satisfied, and it is satisfied if the applicant tan'show agenuine interest in the matter complained of, and that he'comesbefore Coilrf as''a'public spirited citizen concerned to see that thelaw is obeyed in'(fie interest of all, and not merely as a busy bodyperhaps with a,;:vifew to gain'‘cheap' publicity. As to whether anapplicant satisfies1 this second requirement will depend on the facts
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6f each case. There will always be categories of persons whoseinterest in seeing that justice is done by public authorities is morethan that of the average citizen. A Member of Parliament may undercertain circumstances fall into that category because" Members ofParliament represent the whole community, responsible in the lastresort, as Burke pointed out, to their own conscience. They are notmere delegates of their constituents” Wade & Phillips – ConstitutionalLaw (7th Ed) p. 124.
In applying the principles we gather from decisions of the EnglishCourts on the question of locus standi we have torbear in mind thatafter the adoption of a Republican Constitution our members ofParliament have a character different to M.P.’s of the pre Republicanera. According to the preamble to our present Constitution they arethe freely elected representatives of the people of Sri Lanka, whohave mandate from, and an obligation to the people to see that ajust, social, economic and cultural order may be attained.
As stated earlier, the written test was held on 26.5.78. The matterof the irregularity in the holding of the intelligence test paper at■one of the centres was raised in Parliament on 9.11.79 by anotheropposition M.P. who demanded that the whole examination becancelled. In reply to a question raised by the same M.P. on 1.12.79the Minister of Public Administration assured the House and thecountry that there were no serious irregularities. On 22.12.79 HisExcellency the President, in reply to a letter addressed to him byanother Opposition M.P., replied that investigations conducted bythe Minister of Education and the Commissioner of Examinationshad revealed that the physical circumstances of supervision hadnecessitated the opening of the packet 25 minutes before instead of10 minutes before the commencement of the paper and that noirregularities whatsoever had ..been committed. It is only thereafterthat the names of the successful candidates were published on thenotice board of the Ministry on 24.12.79. Then again the C.I.D.replied on 31.12.79 to the Railway Clerical Service Union, whichhad also made allegations of corruption that “there was no evidenceto accept that any offence had taken place”. On 12.2.80 the National• Clerical Service Union wrote to H.E. the President that it had noconfidence in the limited competitive examination and requested thata fresh examination be held. The letters of appointment were interceptedon 15.5.79. On 9.6.80 the Union received a reply that the U.N.P.
Wijesiri v. Siriwardene (Wimalarutnc J.)
Working Committee had taken a decision to suspend the appointmentsto the S.L'.A.S. based on the results of the limited competitiveexamination. After the Government had decided to cancel the writtenpaper in general intelligence, an M.P. speaking on behalf of theDeputy Minister of Public Administration stated in Parliament thatthe letters of selection which had been signed and which had beensent to the tappal section for posting on 15.5.79 were not despatchedbecause on representations made by the Public Service National TradeUnion Federation he had requested the Respondent not to post theletters to the 53 successful candidates.
On 3.9.80 and again on 25.9.80 the Petitioner spoke in Parliamenton behalf of the 53 candidates and said that it would beia graveinjustice to them who had been waiting for one year with greatfrustration and hoping that the appointments would be given soon.He requested the government not to commit excesses against thehonest, educated and efficient public servants of this country andthought the result would be the spread of frustration and disgust inthe whole public service. The petitoner reverted to this matter onceagain in Parliament on 4.11.80. and referred to the earlier repliesgiven by the government that inquiries conducted by the departmentof examination and even by the C.I.D. revealed that no irregularitieshad taken place, and that therefore the 53 candidates had beendiscriminated against.
In the light of the sequence of events, the results of the investigationconducted by the authorities and the genuine interest evinced by thePetitioner it would not be correct to label him as a mere busy bodysimply interfering in things which do not concern him. In institutingthese proceedings he has acted bona fide as he may have thoughtthat he was acting in the public interest; this was one of the reasonsthat influenced me to delete the order for costs made against himby the Court of Appeal.
The second question we are called upon to decide is less troublesome.It involves a simple application of Article 55(5) of the Constitution.In terms of papagraph (1) of Article 55 the appointment, transfer,dismissal and disciplinary control of public officers is vested in theCabinet of Ministers, and all public officers hold office at pleasure.Paragraph (3) empowers the Cabinet to delegate such powers to thePublic Service Commission (P.S.C.), except such powers as have to
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be exercised over Heads of Departments. Article 58(1) empowersthe P.S.C. to delegate its powers of appointments etc. to a publicofficer. So that the respondent, who is a public officer, holds onlya delegated-power,-which power ultimately resides in the Cabinet ofMinisters. Now parr i, .oh (5) of Article 55 provides as follows:*
Subject to the jurisdiction; conferred on the Supreme Courtunder paragraph (1 )• of -Article 129 no court or tribunal shallhave power or jurisdiction.to- inquire .into, pronounce upon orin any manner call in question, any-order or decision of theCabinet of Ministers, a Minister, the Public Service Commission,a Committee of the Public Service Commission, or of a publicofficer, in regard to any matter concerning the appointment,transfer, dismissal or disciplinary control of a public officer.
The present application not being one under Article 126( 1) wherea public servant is complaining that any fundamental right of his has•been infringed by executive or administration action, it is the contentionof the learned Additional S.G. that Article 55(5) of the Constitutioncompletely precludes this Court from questioning in these proceedingsthe decision either of the respondent not to send the letters to thesuccessful candidates or the decision of the Cabinet to cancel theIntelligence test paper.
Mr. H.L. de Silva contends, however, that the present applicationis not one seeking to question any decision of a public officer inregard to an appointment. But it seems to us, and there is no doubt,that by this application the petitioner is seeking to question thedecision of the respondent "concerning an appointment”. The moderntrend, after the decision in Anisminic Ltd. Ks Foreign CompensationCommission (1969) 2 A.C. 147 is not to give effect to such preclusiveclauses if the decisions sought to be quashed are- prove'd – to beunlawful; and that notwithstanding the fact that the preclusive-clauseis contained in a written constitution rather than in an ordinarystatute it would not afford an answer to unlawful acts of the executive- Bindra, Interpretation'of Statutes (6th Ed) P. 808. But even assuminghis submission to be correct, this will not help the petitioner, in theabsence of proof that the decision is clearly unlawful. The Court ofAppeal has found as a fact that .the decision was made not as aresult of trade union pressure but.because of allegations and. counterallegations regarding the holding of the examination. I am therefore
Wijesiri r. Siriwartlenc ■(Winuilarutnc J.)
of the view that Article 55(5) precludes us from granting the petitionerany relief.
In view of his answers'to the'first and second questions Tambiah
J.has not considered it necessary to deal with the nature of therespondent’s duty in making appointments to the public service, -dcAlwis J. has taken the view that the duty, if duty there be to appointthe selectees is a private, and not a public duty. The notice callingfor applications from candidates contains a clause reserving to theMinistry the right to postpone or cancel the examination if it considersit necessary to do so. It also reserved the right to refrain from fillingany of the vacancies. It is therefore difficult to impose on therespondent an obligation in the nature of a public duty either to fillthe vacancies or to make the appointments of the person selected.
On the issue of “futility” the two.Judges have disagreed. Tambiah
J.has taken the view that as the respondent himself did not havethe power to refuse to. appoint.- if the Court-.were to grant a writ ofMandamus, but only an apprehension that the Cabinet of Ministerswould frustrate it, de Alwis J.. .says that the Cabinet has the powerto rescind any appointment made by the respondent in obedience tothe order-of Courts He bases his view, on an application of Article59(c) of the Constitution which empowers the Cabinet of Ministersto alter, vary^or rescind uny‘appointment made by a public .officerholding” delegated powers''from the P.S.C. In view of our answersto questions 2 & 3 above it appears unnecessary to embark uponan interpretation of Article 59(c).
It has been said that the petitioner's motive in instituting theseproceedings, was. to. assist these 53 persons rather than to serve thepublic interest: It is not improbable that he wished-to assist, them,but it would be unfair by him to say that that was the sole"motive.The interest taken by him from the time he knew that the appointmentswere not going to be made arc matters of record. As. I Ij.ave statedearlier his actions have been bona fide and mainly in the -• publicinterest. But the law is against him. Hence our decision to dismissthis appeal without costs and also the decision to delete the orderfor costs made against him in the Court of Appeal.
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I agree with the conclusions of Wimalaratne, J., that this appealshould be dismissed without costs and also to the direction deletingthe order for costs made in the Court of. Appeal.
Article 55 precludes us from granting relief in this matter and inthese circumstances I do not wish to make a pronouncement on thequestion of locus standi.
Rat watte, J. —
1 agree with Wimalaratne. J..
Wijesiri V. Siriwardene