091-NLR-NLR-V-64-SIDNEY-G.-DE-ZOYSA-Appellant-and-THE-PUBLIC-SERVICE-COMMISSION-and-others-R.pdf
LORD GUEST—Sidney de Zoysa v. The Public Service Commission
605
[In the Privy Council]
1963 Present: Lord Goddard, Lord Morton of Henryton,
Lord Evershed, Lord Guest, and Lord Pearce
SIDNEY G. DE ZOYSA, Appellant, and THE PUBLIC SERVICECOMMISSION and others, Respondents
Privy Council Appeal No. 50 op 1961S. C. 250—Application for Writs of Certiorari and Mandamus
Public officers—Constitutional position—Compulsory retirement of a police officer afterreaching the age of optional retirement—Unfettered power of the Public ServiceCommission—Ceylon (State Council) Order in Council, 1931, as. 86 (1), 89 (I),89 (3)—Regulations dated 30th June, 1931, Regulations 82 to 90—Ceylon(Constitution) Order in Council, 1946, ss. 7 (c), 57, 60 {1), 61, 87—PublicService Regulations of 1947, Regulations 62, 63—Manual of Procedure,Regulations 186 to 188—Ceylon Independence Order t» Council, 1947, Scheduleand s. 7—Public and Judicial Officers (Retirement) Ordinance, ss. 1, 2, 3and Rules 1 (I), 2, 5 made in 1949 under s. 2—Public Service CommissionInstructions, 1950, Rules 60, 61—Instructions of 1956, Rules 60,61—
Instructions of 1956, Rules 60, 61—Certiorari.
Under Rule 2(1) of the Rules made in 1949 by virtue of the provisions ofsection 2 of the Public and Judicial Officers (Retirement) Ordinance, thepower of the Public Service Commission (as the competent authority underRule 5) to require a police officer to retire at any time after his completingthe age of fifty years (the age of optional retirement) is unqualified andrequires no preliminary steps for the justification of an order. In such acase it is not necessary that the officer should be informed of the recommenda-tion of the Head of his department and that the procedure prescribed byRegulation 63 of the Public Service Regulations of 1947 should be followed.
Appeal from an order of the Supreme Court reported in(1960) 62 N. L. R. 492.
F. N. Oratiaen, Q.C., with J. O. Le Quesne, Q.C., and KennethPotter, for the appellant.
Stephen Chapman, Q.C., with Dick Taveme, for the respondents.
Cur. ddv. wit.
January 29, 1963. [Delivered by Lord Guest}—
This is an appeal from an order of the Supreme Court of Ceylon(Fernando J.) refusing an application by the appellant for the issue of22—lxtv
2—R.0103—1.S83 (4/68)
506LORD; GUEST—Sidney de Zoysa v. The Public Service Commission
a writ of certiorari quashing an order of the first respondents compulsorilyretiring the appellant from the Ceylon Police Force and for the order of awrit of mandamus consequential on the writ of certiorari.
The appellant was appointed a Probationary Assistant Superintendentof the Ceylon Police Force on 7th December, 1931 and this appointmentwas confirmed on 7th December, 1933. On 29th January, 1955 he wasappointed Deputy Inspector-General of Police. He continued to servein tins capacity until 1959 when on 27th November of that year an orderwas made on behalf of the Public Service Commission (the first respon-dents) tlxat he be retired from the Public Service with effect from 1stMarch, 1960:
The events which preceded this order were the subject of a statement ofclaim and of an affidavit by the appellant before the Supreme Court. Therespondents did not lodge a counter affidavit. Their Lordships arehowever relieved of the necessity of considering these allegations by reasonof a concession made by counsel for the appellant in the Court below thatthese allegations were not relevant to the questions of law arising on thepetition.. They accordingly refused to hear argument from the appellant’scounsel as to the relevancy of these allegations. The sole question fordetermination is whether the Public Service Commission acted in excessof their statutory powers in making the order requiring the appellant toretire and whether this order should accordingly be quashed as beingnull and void.
In order to discuss the arguments presented to the Board it is necessaryto narrate the constitutional position in Ceylon. When Ceylon was a( Crown Colony there was vested in the Governor the appointment, pro-motion, transfer, dismissal, and disciplinary control of public officers(Ceylon (State Council) Order in Council 1931, Section 86(1)). There. was a Public Service Commission to advise the Governor in the exerciseof his powers (Section 89(1)) and the Governor was empowered to makeregulations prescribing the duties and procedure to be followed by theCommission (Section 89(3)). Regulations, dated 30th June, 1931 weremade by the Governor under this Order in Council. Regulations 82-90provide for the retirement of officers of the Public Service. These regula-tions have now admittedly been superseded and it is therefore unnecessaryto detail them. They did however provide for the compulsory retirementof public officers at the age of 55 years (Regulation 82) and by Regulation87 (as amended in 1938) for the Head of a Department making a recom-mendation to the Public Service Commission in the case of public officerswhose emoluments exceeded Rs. 1,500 that they should retire. Withinternal self-government in Ceylon an Order in Council was made in 1946.By section 57 of this Order every person holding office under the Crownwas to hold office during His Majesty’s pleasure and by section 60(1)the appointment, transfer, dismissal and disciplinary control of public
LORD GUEST—Sidney de Zoysa v. The Public Service Commission
507
officers was vested in the Governor acting oh the recommendation ofthe Public Service Commission. Section 87 was in the followingterms :
" 87. (1) The Governor may, at any time before the first meeting ofthe House of Representatives under this Order, make such regulationsas appear to him to be necessary or expedient, in consequence of theprovisions of this Order, for modifying, adding to or adapting theprovisions of any general order, financial regulation, public serviceregulation or other administrative regulation or order, or otherwise forbringing the provisions of any such administrative regulation or orderinto accord with the provisions of this Order or for giving effect thereto.
Every regulation made under subsection (1) of this Section shallhave effect until it is amended, revoked or replaced by the appropriateMinister or authority under this Order. ”
In exercise of the powers conferred on him by section 87 the Governor on17th September, 1947 made the Public Service Regulations (referred toas the 1947 Regulations). In section IV headed “ Retirements ” thereappear the following Regulations 62 and 63 :
"62. The duty of recommending the compulsory retirement of aHead of a Department who has reached the age of optional retirementwill devolve upon the Permanent Secretary to the Ministry who willrecommend such retirement to the Public Service Commission where hedeems it advisable to do so in the public interest. If the Head ofDepartment is unwilling to retire, the Permanent Secretary shall informhim that a recommendation of retirement is being made and call uponhim to submit a statement of his reasons for wishing to remain inservice, for submission to the Public Service Commission along with hisrecommendation. The Public Service Commission will, after consi-dering the recommendation of the Permanent Secretary and the state-ment of the Head of the Department, if any, make its own recommen-dation on the matter to the Governor.
" 63. If a Head of a Department considers it to be in the publicinterest that an officer in his department whose emoluments exceedRs. 2,520 per annum should be required to retire on or after attainingthe age of optional retirement he should make a recommendationaccordingly to the Permanent Secretary to the Ministry who will, if hethinks fit, address the Public Service Commission. If the officer isunwilling to retire, the Head of the Department shall inform the officerthat such a recommendation is being made and call upon the officer tosubmit a statement of his reasons for wishing to remain in service, forsubmission to the Permanent Secretary. The Permanent Secretarywill make his recommendation, forwarding the statement of the officer,if any, to the Public Service Commission. The Public Service. Commission will decide whether the officer should be retired. ”
508
ORD GUEST—Sidney de Zoyaa v. The Public Service Commission
This Section was to be read with Regulations 186 to 188 in the Manual ofProcedure.>.’
Further developments took place in the constitutional position on 19thDecember, 1947 when the Ceylon Independance Order in Council waspassed. This provided for the appointment of a Governor-Generalto be appointed by His Majesty. By the Schedule to this Order section60 of the 1946 Order was amended to the effect of vesting the appointment,transfer, dismissal and disciplinary control of public officers in the PublicService Commission which by section 61, as amended, could delegate itspowers. Thus for the first time the disciplinary control of public officerscame under the Public Service Commission. Section 87 of the 1946Order which authorised the Governor to make rules was revoked, butby a saving clause, section 7, nothing was to affect the validity orcontinued operation of qnyvregulation made under the 1946 Order. The1947 Regulations therefore remained operative until revoked.
The Public and Judicial Officers (Retirement) Ordinance, 12th August,1910, as later amended, provided as follows :
“1. This Ordinance may be cited as the Public and Judicial Officers(Retirement) Ordinance.
“ 2. (1) The Governor-General may make, and when made mayrevoke, vary or amend, rules regulating the age at which, the reasonsfor which, and the conditions subject to which, public or judicial officersshall be required to retire from the public or judicial service.
(2) In particular and without prejudice to the generality of the powerconferred by the preceding subsection, such rules may—
prescribe the age at which the retirement of public or judicial
officers .or of any particular class of public or judicial officersshall be compulsory ;
provide, in such cases and subject to such conditions as may be
prescribed, for the extension of the employment of publio orjudicial officers beyond the age prescribed by rule for com-pulsory retirement, and for the exemption of any particularclass of public or judicial officers from the operation of anyrule relating to the compulsory retirement of public or judicialofficers ;
prescribe an age earlier than the age at which retirement from the
public or judicial service is compulsory at which the authoritycompetent to make the respective appointments may, subjectto such conditions as to notice and otherwise, as may beprescribed, require publio or judicial officers to retire from the
public or judicial service.
*
“ 3. In this Ordinance, ‘ judicial officer ’ and ‘ public officer ’ have
the same meaning as in the Ceylon (Constitution) Order in Council,
1946.”
LORD GUEST—Sidney de Zoysa v. The Public Service Commission
50P
Rules were made in 1949 (known as the 1949 Rules) by the Governor-General under this Ordinance. By Rule 1(1) the age of compulsoryretirement of every public…. officer was to be sixty years. FurtherRules 2 and 5 were made :
Rule “ 2. (1) The competent authority may require any public orjudicial officer to retire upon his completing the age of fifty-five yearsor at any time thereafter :
Provided, however, that any officer of any class or descriptionspecified in Column I hereunder may be required to retire at any timeafter the completion of the age or the period of service, as the case may
be, specified in the corresponding entry in column EL ”
V
Column 1,11
“ (iii) Officer of Police Department-—fifty years of age. ”
Rule “ 5. In these rules ‘ competent authority ’ in relation to theretirement of any officer means the authority competent to makeappointments to the office held by that officer. ”
Finally on 15th March, 1950 Instructions (known as the 1950Instructions) were issued by the Public Service Commission regulating theappointment, transfer, dismissal and disciplinary control of public officers.These instructions were declared to take the place of the Public ServiceRegulations (1947). Rule 60 corresponding to Rule 62 of the 1947Regulations is in the following terms :
** 60. The duty of recommending that a Head of Department whohas reached or is about to reach the age of optional retirement shouldbe required to retire under the provisions of Rule 2 of the Rules madeunder Section 2 of the Public and Judicial Officers (Retirement)Ordinance will devolve upon the Permanent Secretary to the Ministrywho will make his recommendations to the Public Service Commission.”
and Rule 61, corresponding to Rule 63 of the 1947 Regulations providesas follows :
“ 61. If a Head of Department considers that an officer in hisdepartment, the commencing salary of whose post exceeds Rs. 3,780per annum, should be required to retire under the provisions of Rule 2of the Rules made under Section 2 of the Public and Judicial Officers(Retirement) Ordinance, he will make a recommendation accordinglyto the Permanent Secretary to the Ministry. If the Officer is unwillmgto retire he shall be informed of the reasons why the recommendationis being made and shall be given an opportunity of submitting a state-ment in reply. The Permanent Secretary will make his recommen-dation to the Public Service Commission, forwarding the statement ofthe officer, if any. The Commission will decide whether the officershould be retired. ”
The instructions current at the material date are the 1956 Instructionsof which Rules 60 and 61 are in corresponding terms.
2*It 0103 (4/03)
610 LORD GUEST—Sidney de Zoysa v. The Public Service Commission
• The appellant’s ground for quashing the order of the Public ServiceCommission requiring him to retire was that the first respondents had •failed to comply with the terms of Regulation 63 of 1947 in respect (1) .that the Head of the appellant’s department had not made a recommen-dation to the Permanent Secretary to the Ministry that the appellantshould be required to retire, (2) that the appellant had never been in-formed of any such recommendation and called upon to submit hisreasons for wishing to remain in the service for submission to thePermanent Secretary, (3) that the Permanent Secretary had not madeany recommendation to the Public Service Commission. It was matter-of agreement that the appellant had reached the age of optional retirement:at the relevant date, having ' been bom on 15th January, [1909.Previously he had been granted an extension of service for one year from15th January, 1959. ‘ By letter dated 20th October, 1959 he was granteda further extension of service for one year from 15th January,j I960. ‘But counsel for the appellant conceded that the extension thus aUoweddid not fetter the power of the Public Service Commission to make anorder of retirement under the relevant Kules. It was also concededby the respondents that none of the steps detailed in Regulation' 63 of1947 had been carried out in the appellant’s case. He had simply beenrequired to retire upon a notification from the Public Service Commission.In the Supreme Court Fernando J. after an extensive examination ofthe Regulations and some Indian authorities held that the 1947 Regula-tions did not have the force of law and were not a mandatory enactmentqualifying the right of dismissal involved in section 57 of the Order inCouncil of 1946. The first respondents were not obliged to carry outthe terms of Regulation 63 before requiring the appellant to retire. Heaccordingly dismissed the application.
In the view which their Lordships take it is unnecessary to deal with thequestion raised by the trial judge whether the 1917 Regulations have theforce of law and they accordingly express no opinion upon it. Counselfor the respondents introduced into the case for the first time the Public'Service Commission Instructions, 1950 and submitted that] thesesuperseded the 1947 Regulations. Counsel for the appellant concededthat if this was so, the 1950 Rules being administrative only, and notmandatory, he could not rely on the first respondents’ failure to complywith these rules as a ground for certiorari. Their Lordships find it un-necessary to decide whether the 1950 Rules superseded the 1947 Regula-tions and they assume in the appellant’s favour that the Regulationscurrent at the material date were the 1947 Regulations.
The argument for the respondents proceeded on the basis that publicofficers held office at His Majesty’s pleasure and that since Ceylon becameindependent the function of appointing and dismissing public officerswas vested in the Public Service Commission. As the competentauthority under Rule 5 of the 1949 Rules the first respondents were underRule 2(1) entitled to require the appellant to retire at the age of fiftywhich in his case as an officer of the police department was the optional
L.ORD GUEST—Sidney de Zoysav. Tl%e Public Service Commission 511
age, and tliat the first respondents did not require to take any otherpreliminary steps to their effective order. Although the 1949 Rules arementioned at the outset of the learned trial judge’s judgment, he did notroly on them for his decision, but as previously stated he based hisjudgment on the ground that the 1947 Regulations did not have theforce of law.
The appellant contended tliat the 1947 Regulations had not beenrevoked or abrogated by any subsequent order or regulation. Theywere validly made by the Governor under section 87 of the 194G Orderin Council and they took effect until revoked, amended or replaced.Their validity and continued operation was saved by section 7(c) of the1946 Order. As the 1949 Rules did not expressly or by implicationrevoko the 1947 Regulations the latter provided a protection to theappellant when he was required to retire. Section IV contained acomplete code for the procedure to be adopted when a public officer wasto be retired on or after reselling the age of optional retirement. Byfailing to comply with the terms of Regulation 63 the first respondentsacted outside their powers and their order was accordingly revoked.
Their Lordships do not consider that there is any necessary inconsistencybetween the 1947 Regulations and the 1949 Rules. The two sets ofregulations run hi parallel streams. Regulation 63 applies to the specialcases where a Head of a Department considers it to be in the publicinterest that an officer should be required to retire at the age of optionalretirement. If the Head of the Department initiates the procedure,then the authorities should comply with the terms of Regulations 63.But this is without prejudice to the powers of the Public Service Commissionunder Rule 2(1) of 1949 Rules to require a police officer to retire at fifty.Their power under this Rule is unqualified and requires no preliminarysteps for the justification of an order. To hold otherwise would involvethe Commission in the embarrassing position that it could act onlywhere a Head of a Department was prepared to make a recommendationthat an officer should be retired at the age of optional retirement. Itis not without significance that the new unfettered power of the Commis-sion under Rule 2(1) came with the achievement of independence byCeylon, and it may be tliat it was thought that the executive should havethe control of public officers and should have an overriding power torequire an officer to retire at the age of optional retirement. But whetherthis be so or not, it was not said that Rule 2 is vltra vims of the Governor-General. It is clear in its terms and affords complete justification forthe first respondents’ action. In the view of their Lordships the firstrespondents acted within their statutory powers in requiring the appellantto retire.
In the result their Lordships agree with the conclusion arrived at by thelearned trial judge though for different reasons. They will accordinglyliumbty advise Her Majesty that the appeal be dismissed. In theoircumstances of this case their Lordships will make no order as to costs.
Appeal dismissed.