WESTERN PROVINCE TECHNOLOGICAL OFFICERS (CIVIL) UNION v. NIMAL KARUNARATNE

029-SLLR-SLLR-2008-V-1-WESTERN-PROVINCE-TECHNOLOGICAL-OFFICERS-CIVIL-UNION-v.-NIMAL-KARUNARATNE.pdf


SCWestern Province Technological Officers (Civil) Union v303
Nimal Karunaratne and Others
WESTERN PROVINCE TECHNOLOGICAL OFFICERS(CIVIL) UNIONvNIMAL KARUNARATNE AND OTHERSSUPREME COURT.
SHIRANEE TIUKAWARDANA, J.
SALEEM MARSOOF, J. ANDANDREW SOMAWANSA, J.
S.C. APPEAL NO. 07/2005S.C. (SPL.) L.A. NO. 175/2004C.A. (WRIT) 1144/2000SEPTEMBER 27, 2007
Writ of Certiorari – Provincial Councils Act of 1987- Section 32(1) – The decisionto classify technical officers of the Sri Lanka Technological Services (SLTS)according to their specialization into the 'buildings' and 'irrigation' categories -Supreme Court Rules – Rule 30 and or Rule 34 – Failure to file writtensubmissions, sanction – Deprivation of the right to be heard – Whether appealought to be dismissed? – Constitution – Article 154, Article 154(C), Article 154(F)1,154(G), Article 154(H) – Thirteenth Amendment – Reserved – Provincial -Concurrent lists – 1972 Constitution – Section 27(1).
The Intervenient-respondent-petitioner, which is the Western ProvinceTechnological Officers (Civil) Union (Appellant) sought special leave to appealfrom the decision of the Court of Appeal, quashing by way of Certiorari thedecision to classify technical officers of the Sri Lanka Technological Services(SLTS) according to their specialization into the 'buildings' and ’irrigation'
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categories. The original writ application was filed in the Court of Appeal by the 1stto 33rd petitioners-respondents. The Court of Appeal allowed the appellant unionto intervene and oppose the application of the petitioners-respondents.
The Supreme Court granted Special Leave to Appeal against the judgment of theCourt of Appeal.
Held:
Where there is a failure to file written submissions in terms of Rule 30, thesanction is simply a deprivation of the right to be heard. However, sanctionbecomes ineffective in a case where the parties in default have in fact beenheard without any objection being raised at the hearing.
per Saleem Marsoof, J.
"The conduct of the parties in not taking up any objections at the hearing to
each other's defaults and the absence of prejudice to the parties as a result of
these possible defaults, I am of the opinion that the discretion of Court ought
to be exercised in favour of the appellant."
Failure to include a necessary party is a fatal irregularity which warrants therejection of the writ petition in limine.
The opening words of Section 32( 1) of the Provincial Councils Act of 1987,viz "Subject to provisions of any other law…." highlight the need tounderstand the said provision in the context of other provisions of law whichinclude the provisions of the Constitution with the view to devolvinglegislative and executive power to the Provinces without parting with itssupremacy or its powers to the Provincial Councils.
It is clear from Article 154 F(1) of the Constitution that while the ProvincialBoard of Ministers are Constitutionally charged with the responsibility ofaiding and advising the Governor in the exercise of his functions, theGovernor is bound in law in the exercise of his functions, as a general ruleto "act in accordance with such advice, except in so far as he is by or underthe Constitution required to exercise his functions or any of them in hisdiscretion."
The position of the Governor is similar to that of the President under the1972 Constitution of Sri Lanka, who by section 27(1) thereof was bound toact on the advice of the Prime Minister. The Governor is required by law toact on the advice of the Board of Ministers. Accordingly, the failure to citethe members of the Board of Ministers as respondents to the writ petitionwas a fatal irregularity.
Held further:
No immunity from judicial review is conferred by the Constitution on theBoard of Ministers or the Governor, except to the limited extent that Article154 (F(2) of the Constitution, which requires the Governor himself to decidewhether in a given situation he will have to act on advice or in his discretion,and provides that "The decision of the Governor in his discretion shall befinal, and the validity of anything done by the Governor shall not be called
SCWestern Province Technological Officers (Civil) Union v305
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in question in any Court on the ground that he ought or ought not haveacted on his discretion."
As far as decisions and actions of the Provincial Ministers are concerned,it is trite law that the extent of their amenability to certiorari and other writsis similar to that of Ministers appointed under Chapter VIII of theConstitution, and neither they nor their decisions or actions enjoy anyimmunity from judicial review. Hence, Courts are not inhibited fromexercising supervisory jurisdiction over the decisions or actions ofMinisters, whether appointed under Chapter VIII or Chapter XVIIA of theConstitution, and granting mandates in the nature of the Writ of Certiorariwhenever appropriate.
The term jurisdiction has become synonymous with 'power' and the ambitof Certiorari has expanded to embrace decisions and actions of variousbodies or persons exercising powers or functions of a public nature; the writdoes not lie if circumstances necessary for the grant of certiorari do notexist.
Held further:
1st to 33rd respondents and the members of the petitioners union wereabsorbed into the SLTS of the Western Province from differentDepartments and they professed expertise and specialization in differentfields, which justified the categorization of officers in the SLTS into'buildings' and 'irrigation'.
The division of the SLTS into 'buildings' and 'irrigation' is neither arbitrarynor unreasonable and is also consistent with the SLTS minutes as well asSLES where posts are grouped according to expertise.
Cases referred to:
A.C. Muthappan Chettiarv M.R. Karunanayake and Another 2005 BLR 4.
Mohamed Khairas v Chairman, Pradeshiya Sabha, Karandeniya and threeOthers 2006 BLR 36.
Samarawickrema vAttorney-General 1983 2 Sri LR 162.
Hatton National Bank Ltd. v Casimir Kiran Atapattu and Another 2007 BLR78.
Kiriwanthe and Another v Navaratne 1990 2 Sri LR 393.
Ramasamy v Ceylon State Mortgage Bank 78 NLR 510.
Karunaratne v Commissioner of Co-operative Development 1978-79 2 SriLR 510.
Gnanasambanthan v Rear Admiral Perera 1983 2 Sri LR 169.
Abeyadeera v Dr. Stanley Wijesundera 1983 2 Sri LR 267.
Fa rook v Siriwardena, Election Officer 1997 1 Sri LR 145.
10a) In Re Thirteenth Amendment 1987 2 Sri LR 312 at 323
Parameswary Jayathevan v Attorney-General and Others 1992 2 Sri LR 356.
Premachandra v Major Montague Jayawickrema and Another (ProvincialGovernor's case) 1994 2 Sri LR 90.
306Sri Lanka Law Reports[2008] 1 Sri L.R
Maithripala Senanayake, Governor of the North-Central Province and Anotherv Gamage Don Mahindasoma and Others 1998 2 Sri LR 333.
Mudiyanse v Christie Silva, Government Agent, Hambantota 1985 2 Sri LR 52.
T.N. Fernando, Assistant Commissioner of [Excise, Kalutara v Nelum Gamage,Bribery Commissioner and Another 1994 3 Sri LR at 194.
G.P.A. Silva and others v Sadique and Others 1978-79-80 1 Sri LR 166.
Waas Gunawardena v Perera and Another 1997 2 Sri LR 222.
APPEAL from the judgment of the Court of Appeal.
Kuvera de Zoysa with Senaka de Saram for the intervenient-petitionerMohan Peiris, RC. with Kamran Aziz for the 1 st to 33rd petitioners-respondents.Rajiv Gunatilake, S.C. for the 1 to 6th respondents-respondents.
Cur.adv.vult.
September 11,2008SALEEM MARSOOF, J.
The lntervenient-Respondent-Petitioner, which is the WesternProvince Technological Officers (Civil) Union (hereinafter referred to as'the Appellant'), sought special leave to appeal from the decision of theCourt of Appeal dated 1st June 2004, quashing by way of certiorari thedecision to classify technical officers of the Sri Lanka TechnologicalService (SLTS) according to their specialization into the 'buildings' and'irrigation' categories. The original writ application was filed in the Courtof Appeal by the 1st to 33rd petitioners-respondents, who wereemployees of the Western Province Provincial Council holdingpositions in Class II B, Class II A,Class I and Special Class of the SLTS,who had been absorbed into the service of the said Council around1990 from the Agrarian Services Department. The said petitioners hadcited the Chief Secretary of the Provincial Public Service Commission,the Governor and the Deputy Chief Secretary (Engineering) all of theWestern Province, along with the Secretary to the Ministry of PublicAdministration, Home Affairs and Plantation Industries, and theAttorney-General as respectively the 1st to 6th respondents to theirapplication. The appellant union had been permitted by the Court ofAppeal to intervene and oppose the application of the petitioners-respondents.
On 7th February 2005, this Court granted special leave to appealagainst the Judgment of the Court of Appeal specially on the followingquestions:
qqWestern Province Technological Officers (Civil) Union v3q7
Nimal Karunaratne and Others (Saleem Marsoof, J.)
"(a) Did the Court of Appeal err in failing to consider that themembers of the Board of Ministers of the Western Province,have not been cited as respondents to the application ofthe petitioners-respondents though they are necessary parties?
Did the Court of Appeal err in failing to consider that the saiddecision of the Board of Ministers of the Western Province,which has been subsequently approved by the Governor of theWestern Province, is not subject to judicial review?
Did the Court of Appeal fail to consider that there are nogrounds existing to exercise judicial review against the saiddecision?
«
Did the Court of Appeal fail to consider that the 1 st to 33rdrespondents and the members of the Petitioner Union wereabsorbed to the SLTS of the Western Province from differentDepartments and they professed expertise and specializationin different fields?
Did the Court of Appeal fail to consider that in terms of Clause4(i) of the Engineering Service Circular No. 31, which wasamended by Engineering Service Circular No. 31 (1), the SLTSofficers in the Western Provincial Council have to be groupedaccording to their specialization on the same grouping as theEngineers in the SLES minutes?"
Failure to file Written Submission
Before considering the questions on which special leave has beengranted, it is necessary to deal with a preliminary objection taken bylearned President's Counsel for the 1st to 33rd petitioners-respondentsin his written submissions dated 24th October 2007. It is the contentionof the learned President's Counsel, that the Appellant has failed totender its Written Submissions within six weeks of the granting ofspecial leave to appeal by this Court in compliance with the mandatoryprovisions of Rules 30(1) and 30(6) of the Supreme Court Rules, andthat the appeal should therefore be dismissed in limine for failure todiligently prosecute the same as contemplated by Rule 34 of the saidrules.
Learned President's Counsel for the 1st to 33rd petitioners-respondents relies on the judgment of this Court in A.C. MuthappanChettiarv M.R. Karunanayake and Another). In that case, the appeal
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was dismissed for non-compliance with Rule 34, and in an exhaustivejudgment Shirani A. Bandaranayake, J, (with Raja Fernando, J. andN.G. Amaratunga, J. concurring) refers to the previous judgments ofthis court in which appeals have similarly been dismissed for failure todiligently prosecute them. The decision in Muthappan Chettiar hassubsequently been followed in Mohamed Khairas v Chairman,Pradeshiya Sabha, Karandeniya and Three Others<2). In all thesecases, the preliminary objection had been taken up at the hearing andthe Court had heard submissions on the specific issue of non-compliance with Rule 34 before deciding that it was appropriate in thecircumstances of those cases to dismiss the appeals in limine,obviating the need to go into the merits.
What happened in the instant case is quite different. Special leaveto appeal was granted in this case on 7th February 2005 and the casewas listed for hearing on 13th June 2005. On 28th February 2005, theAttorney-at-Law for the Appellant union filed a motion with which hetendered an additional affidavit adverting to certain facts, and itappears from the docket that with a subsequent motion dated 3rdMarch 2005, he filed the written submissions of the appellant unionwell within the time of 6 weeks specified in Rule 30(6). However,although a copy of the written submissions is available in the docket,my earnest endeavours of tracing the original motion to verify whetherthe written submissions were filed with notice to the other parties, havenot proven fruitful. There is nothing in the docket to show that theAppellant union complied with the latter part of Rule 30(6) whichrequired him (or it, as in this case) at the time of lodging the writtensubmissions in the Registry to "forthwith give notice thereof to eachrespondent by serving on him a copy of such submissions." In fact, thechronology of events in this case, suggests that there has been afailure to give notice of the filing of the written submissions by theappellant. The docket shows that as the learned President’s Counselwho then appeared for the appellant was in a personal difficulty, theappeal was not taken up for hearing on 13th June 2005, and wasthereafter re-fixed for hearing on several dates, namely, 3rd October2005, 7th February 2006, 12th June 2006, 2nd October 2006, 9thFebruary 2007 and 8th June 2007, on which dates the hearing waspostponed for one reason or another. It appears from the docket thatwhen the case came up for hearing on 8th June 2007, it was movedout on behalf of the learned Counsel for the appellant, and the Court
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has specifically recorded that the learned Counsel for the 1st to 33rdpetitioners-respondents submitted that the appellant has not filedwritten submissions “and therefore this matter cannot be arguedtoday". Unfortunately, on that occasion, the attention of Court had notbeen drawn to the fact that the written submissions of the Appellanthad in fact been filed on 3rd March 2005. The question of failure to givenotice of filing of written submissions could have been resolved on thatdate if it had been raised by learned Counsel for the 1st to 33rdpetitioners-respondents at that stage.
The case was ultimately taken up for argument on 27th September2007, and submissions were made by Counsel on the merits withoutany preliminary objection being taken up on the basis that there hasbeen a failure to comply with Rule 30 and / or Rule 34. On that day,after hearing arguments of Counsel on the merits of the appeal, theparties were permitted to file further written submissions within onemonth from that date. This, the appellant and the 1st to 33rdpetitioners-respondents, did in time. The preliminary objection to themaintainability of the appeal was in fact raised in the writtensubmissions of the 1st to 33rd petitioners-respondents dated 24thOctober 2007. Not surprisingly, the written submissions of theappellant dated 27th October 2007 are confined to the merits of thecase and do not deal with the issue of the alleged non-compliance ofthe appellant with the Supreme Court Rules. It is likely that Counsel forthe appellant was not aware of the preliminary objection taken up in thewritten submissions of the 1st to 33rd petitioners-respondents and hadno opportunity of responding to the same in the written submissionsfiled by him.
Where there is a failure to file written submissions in terms of Rule30, the sanction is simply a deprivation of the right to be heard. It isexpressly provided in Rule 30(1) that-
"No party to an appeal shall be entitled to be heard, unless he haspreviously lodged five copies of his written submissions(hereinafter referred to as "submissions", complying with theprovisions of this rule." (Emphasis added).
This sanction becomes ineffective in a case such as the presentwhere the parties in default have in fact been heard without anyobjection being raised at the hearing. Of course, the Court has a
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discretionary power under Rule 34 to decide whether the appeal oughtto be dismissed for failure to prosecute the appeal with due diligence,and the failure to file written submissions in time or to give propernotice thereof may become relevant for this purpose. I have been ableto trace only one case, viz, the decision of this Court inSamarawickrema v Attorney-General in which an appeal wasdismissed for the failure on the part of the appellant to give notice ofthe filing of written submissions to the respondent. This was a decisionbased on the corresponding provisions of Rule 35(e) of the previousSupreme Court Rules of 1978, and it appears from the report that whilethe appellant had no means of proving that a copy of the writtensubmissions alleged to have been filed on his behalf had been servedon the Attorney-General, there was also no record of the receipt at theoffice of the Attorney-General of the written submissions whichCounsel for the appellant stated had been handed over. In a very briefjudgment, the Court held that compliance with this provision was"imperative," and in all the circumstances of that case (which were notexplained in the judgment) considered it appropriate to dismiss theappeal. On the other side of the line is the recent decision of this Courtin Hatton National Bank Ltd. v Casimir Kiran Atapattu and Another,in which the appellant had filed written submissions in time but hadfailed to give notice thereof to the respondent. The court exercised itsdiscretion in favour of the party in default, and granted further time toserve on the other party a copy of the written submissions. In thiscontext it is important to bear in mind the words of M.D.H. Fernando,J., who in Kiriwanthe and Another v Navaratne,(5) at 404 observedthat-
"The weight of authority … favours the view that while all theseRules must be complied with, the law does not require or permitan automatic dismissal of the application or appeal of the party indefault. The consequence of non-compliance (by reason ofimpossibility or for any other reason) is a matter falling within thediscretion of the Court, to be exercised after considering thenature of the default, as well as the excuse or explanationtherefore, in the context of the object of the particular rule."(Emphasis added).
In the instant case, the Appellant union in fact has filed the writtensubmissions in time but it is uncertain whether notice thereof was given
SCWestern Province Technological Officers (Civil) Union v311
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to the other parties. It appears from the minutes of proceedings of 8thJune 2007 that the learned Counsel for the 1st to 33rd petitioners-respondents did to have the written submissions of the appellantprobably because the same had not been served on him at the time offiling. However, the fact that no preliminary objection was taken at thehearing of the appeal on 27th September 2007 to the appellant beingheard by Court, clearly shows that the other parties had condoned theomission. This may very well be because the learned Counsel for the1st to 33rd petitioner-respondents wisely chose not to throw stonesfrom a glass house, as the 1st to 33rd petitioners-respondents werethemselves at default, due to the unexplained delay in filing theirwritten submissions. The written submissions of those petitioners-respondents were filed only on 4th August 2006, very much outside thetime limit of twelve weeks set out in Rule 30(7), which is reproducedbelow:
"The respondent shall within six weeks of the receipt of notice ofthe lodging of the appellant's submissions, lodge his submissionsat the Registry, and shall forthwith give notice thereof to theappellant and to every other respondent, by serving on each ofthem a copy of such submissions. Where the appellant has failedto lodge his submissions as required by sub-rule (6), therespondent shall lodge his submissions within twelve weeks ofthe grant of special leave to appeal, or leave to appeal, as thecase may be giving notice in the manner." (Emphasis added).
In all the circumstances of this case, considering that there is somedoubt as to whether the appellant in fact contravened the rules, and thegreater certainty that the 1st to 33rd petitioners-respondentsthemselves had defaulted in filing their written submissions on time, theconduct of the parties in not taking up any objections at the hearing toeach others' possible defaults and the absence of prejudice to theparties as a result of these possible defaults, I am of the opinion thatthe discretion of Court ought to be exercised in favour of the appellant.The preliminary objection is therefore overruled.
Failure to cite the Board of MinistersThe learned Counsel for the appellant union strongly contends thatthe Court of Appeal has erred in failing to consider that the membersof the Board of Ministers of the Western Provincial Council, whoallegedly took the impugned decision, have not been cited as
312Sri Lanka Law Reports[2008) 1 Sri L.R
respondents to the application of the petitioners-respondents thoughthey are necessary parties. He submits that the failure to add the saidMinisters as parties to the writ petition in the Court of Appeal even afterthe filing of the Objections of the State which included an affidavit fromthe 4th respondent-respondent dated 25th September 2001 disclosingthe role played by the Board of Ministers, is fatal to the writ applicationas the proper parties were not before court as required by law. He hasinvited the attention of Court to the decisions in Ramasamy v CeylonState Mortgage Banti6), Karunaratne v Commissioner of Co-operativeDevelopmentGnanasambanthan v Rear Admiral PereraW,Abayadeera v Dr. Stanley Wijesundaraf9) and Farook v SiriwardenaElection Office^0), which clearly set out the legal proposition that thefailure to implead a necessary party is a fatal irregularity whichwarrants the rejection of the writ petition in limine.
Learned President's Counsel for the 1st to 33rd petitioners-respondents does not contest the correctness of the said propositionof law, but submits that the members of the Board of Ministers werenot necessary parties to the writ application. It therefore becomesnecessary to carefully examine the writ petition filed by the 1st to 33rdpetitioners-respondents in the Court of Appeal and the other pleadingsin the case to ascertain whether the Board of Ministers of the WesternProvince had any role to play in the process by which the impugneddecision was made.
Although in the petition filed by the 1st to 33rd petitioners-respondents in the Court of Appeal it has been stated that the decisionto classify officers in the SLTS into the categories of 'buildings' and'irrigation' was made by the 1st to 4th respondents-respondents(paragraph 16), and it was sought to be implemented by the 1strespondent-respondent, who is the Chief Secretary for the WesternProvince (paragraph 17), no document embodying the decision wasproduced with the petition by which a writ of certiorari was sought toquash the said decision. It is, however, clear from paragraph 12(c) ofthe affidavit dated 25th September 2001 filed by the 4th respondent-respondent and the Memorandum marked 4R5(a) and the Decision ofthe Board of Ministers marked 4R5(b) that the impugned decision tocategorize the SLTS as aforesaid was in fact placed before the Boardof Ministers of the Western Province by the Chief Minister of theProvince, who was also inter alia the Minister for Provincial
SCWestern Province Technological Officers (Civil) Union v3^3
Nimal Karunaratne and Others (Saleem Marsoof, J.)
Administration, and was approved by the said Board on 17th August2000. It is evidenced by the document marked 4R5(c) that the decisionwas thereafter approved by the Governor of the Western Province, onwhom the power of making appointments to the Provincial PublicService is vested by section 32(1) of the Provincial Councils Act No. 42of 1987. This Section provides that-
"Subject to the provisions of any other law the appointment,transfer, dismissal and disciplinary control of officers of theProvincial Public Service of each Province is thereby vested in theGovernor of that Province." (Emphasis added)..
It is relevant to note that in terms of section 32(3) of the ProvincialCouncils Act, the Governor has the power and responsibility ofproviding for, and determining, "all matters relating to officers of theProvincial Public Service, including the formulation of schemes ofrecruitment and codes of conduct for such officers, the principles to befollowed in making promotions and transfers, and the procedure for theexercise and the delegation of the powers of appointment, transfer,dismissal and disciplinary control of such officers." It is further providedthat in formulating such schemes of recruitment and codes of conduct"the Governor shall, as far as practicable, follow the schemes ofrecruitment prescribed for corresponding offices in the public serviceand the codes of conduct prescribed for officers holding correspondingoffices in the public service."
In this backdrop, learned President's Counsel contends that therewas neither a necessity nor a requirement to cite the members of theBoard of Ministers as respondents to the petition before the Court ofAppeal, as the final decision was made by the Governor of theProvince who is a party to these proceedings. He submits that theBoard of Ministers had merely adopted the Central GovernmentCircular No. 31 dated 5th August 1997 (P12), which was subsequentlyamended by Engineering Service Circular No. 31(1) dated 5thSeptember 2000 (X3), in order to absorb individuals in the SLTS of theWestern Province into the Sri Lanka Engineering Service (SLES). Hesubmits that the Board of Ministers of the Western Provincial Council,had no power to decide on the adoption of Central GovernmentCirculars, and further submits that the power to approve andimplement such Circulars in terms of Section 32 is vested exclusivelyin the Governor concerned. He also submits that the Board of Ministers
314Sri Lanka Law Reports[2008] 1 Sri L.R
of the Western Provincial Council was neither empowered nor obligedto approve the impugned decision, although in fact it had sought to doso. He emphasized that as the power to make all decisions relating tothe provincial public service is vested exclusively in the Governor of theProvince, and since he was cited as the 3rd respondent-respondent tothese proceedings, there was no necessity to cite the members of theBoard of Ministers of the Western Province as respondents to the writpetition.
I am unable to agree with the submissions of the learnedPresident's Counsel for the 1st to 33rd petitioners-respondents as theyoverlook the important opening words of Section 32(1) of the ProvincialCouncils Act of 1987, viz., "Subject to the provisions of any other law
" These words highlight the need to understand the said provision
in the context of other provisions of law, which undoubtedly include theprovisions of the Constitution of the Democratic Socialist Republic ofSri Lanka. In 1987, Parliament enacted the Provincial Councils Actalong with the Thirteenth Amendment to the Constitution with the viewto devolving legislative and executive power to the Provinces withoutparting with "its supremacy or its powers to the Provincial Councils"(see, In Re the Thirteenth Amendment to the Constitution0a) at 323).By this Amendment, while reserving to itself as stated in Article154G(7) of the Constitution, exclusive legislative power with respect toall matters set out in List II (Reserved List) to the Ninth Schedule, whichincluded the 'National Public Services' (item (n) of List II), it vested inProvincial Councils by Article 154G(1) the power to make statutes withrespect to matters set out in List I (Provincial Councils List) without anyconsultation with Parliament, and by Article 154G(5)(b) the power tomake statutes with respect to matters set out in List III (Concurrent List)"after such consultation with Parliament as it may consider appropriatein the circumstances of each case." Express reference is made in ListI (Provincial Councils List) to the Provincial Public Service in AppendixIII item 3, and the Provincial Councils Act was enacted by Parliament,as contemplated by Article 154Q(d) of the Constitution and as explicitlystated in the preamble to the Act, "to provide for the procedure to befollowed in Provincial Councils; for matters relating to the ProvincialPublic service; and for matters connected therewith or incidentalthereto." The devolution of executive power to the Provinces is dealtwith in Article 154C of the Constitution, which provides that-
§qWestern Province Technological Officers (Civil) Union v3-15
Nimal Karunaratne and Others (Saleem Marsoof, J.)
"Executive power extending to the matters with respect towhich a Provincial Council has power to make statutes shallbe exercised by the Governor of the Province for which thatProvincial Council is established, either directly or throughMinisters of the Board of Ministers, or through officerssubordinate to him, in accordance with Article 154F."(Emphasis added).
Referring to the above quoted provision, Kulatunga, J., observed inParameswary Jayathevan v Attorney-General and Others^11) at 360-361 that –
"At the level of a Provincial Council, Article 154C provides thatexecutive power extending to matters with respect to which aProvincial Council has the power to make statutes shall beexercised by the Governor of the Province directly or through theBoard of Ministers, or through officers subordinate to him, inaccordance with Article 154F. Article 154F establishes a Board ofMinisters and provides, inter alia, that the Governor shall, in theexercise of his functions, act in accordance with the advice of theBoard of Ministers, except in so far as he is by or under theConstitution required to exercise his functions in his discretion."(Emphasis added).
It is therefore clear from Article 154F(1) of the Constitution that whilethe Provincial Board of Ministers is constitutionally charged with theresponsibility of aiding and advising the Governor in the exercise of hisfunctions, the Governor is bound in law in the exercise of his functions,as a general rule to "act in accordance with such advice, except in sofar as he is by or under the Constitution required to exercise hisfunctions or any of them in his discretion." The position of the Governoris similar to that of the President under the 1972 Constitution of SriLanka, who by Section 27(1) thereof was bound to act on the adviceof the Prime Minister, which is reminiscent of the position of the Crownin the modern Westminster system.
It is important to bear in mind that Article 154F(1) recognizes thatthere may be exceptional situations in which the Governor isconstitutionally required to act in his discretion. However, the decisionsof the Supreme Court have been careful not to interpret the term"except" as used in that provision too widely. Thus in Premachandra v
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Major Montague Jayawickrema and Another2) (Provincial Governors'Case), one of the questions referred to the Supreme Court forinterpretation was, whether the exercise of the power vested in theGovernor of a Province under Article 154F (4) of the Constitution, toappoint as Chief Minister, the member of the Provincial Council who "inhis opinion, is best able to command the support of a majority of themembers of that Council," is solely a matter for his subjectiveassessment and judgment. G.P.S. de Silva, C.J. (with Bandaranayake,J., and Fernando, J., concurring) answered the question in thenegative. His Lordship sought to justify his decision by reference to twofundamental principles of our Constitution, namely, the Rule of Lawand the concept that "Statutory power conferred for public purposes is
conferred as it were upon trust,that is to say, it can validly be used
only in the right and proper way which Parliament when conferring it ispresumed to have intended." (at 102-103). His Lordship stressed thatthere are no absolute or unfettered discretions in public law and thatdiscretions are conferred on public functionaries "in trust for the public,to be used for the public good, and the propriety of the exercise of suchdiscretions is to be judged by reference to the purposes for which theywere so entrusted." (at 105) Considering the purpose for which byArticle 154F(4) the Constitution gave the Governor a discretion, HisLordship observed at 105 that –
"By the exercise of the franchise the people of each Provinceelect their representatives, for the purpose of administeringtheir affairs. The Governor is given a discretion in order toenable him to select as Chief Minister the representative bestable to command the confidence of the Council, and therebyto give effect to the wishes of the people of the Province. Thatdiscretion is not given for any other purpose, personal orpolitical."
The decision of this Court in Maithripala Senanayake, Governorof the North-Central Province and Another v Gamage DonMahindasoma and Othersi13> involved the power of the ProvincialGovernor to dissolve the Provincial Council in terms of Article 154Bof the Constitution which was required by Article 154B (8)(d) to beexercised "in accordance with the advice of the Chief Minister, solong as the Board of Ministers commands, in the opinion of theGovernor, the support of the majority of the Provincial Council." The
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Nimai Karunaratne and Others (Saleem Marsoof, J.)
Supreme Court considered the duty to act in accordance with theadvice of the Chief Minister mandatory, and therefore the exerciseof power by the Governor to dissolve the Provincial Council as notdiscretionary.
It is clear from the affidavit of the 4th respondent-respondentdated 25th September 2001 and the documents marked 4R5(a),4R5(b) and 4R5(c) that the Governor of the Western Province, whois the 3rd respondent-respondent to this appeal had clearly actedon the advice of the Board of Ministers, as he is required by law soto do. I am therefore of the opinion that the failure to cite themembers of the Board of Ministers as respondents to the writpetition was a fatal irregularity. A decision in point is that ofMudiyanse v Christie Silva, Government Agent, Hambantota^4),cited by learned President's Counsel for the 1st to 33rd petitioners-respondents himself, which arose from an application for certiorarito quash a decision taken by the Government Agent to refuse alicense sought under Section 28A (1) of the Excise Ordinance asamended by Excise (Amendment) Law No. 24 of 1977. The Sectionempowered the Minister of Finance to direct the Government Agentto refuse or cancel a license, and the latter was obliged to giveeffect to such direction. The Minister was not cited as respondentto the writ petition, and the Court held that insofar as the refusal tothe license was not one made by the Government Agent on his ownvolition in the exercise or purported exercise of the powers vestedin him but one made in pursuance of the direction given by theMinister of Finance, the application for certiorari should have beenmade against the Minister and not against the respondent. In myopinion, the Court of Appeal has in the instant case, erred inquashing the decision taken by the relevant Governor on the adviceof the Board of Ministers, in proceedings in which the members ofthe Board have not been cited as respondents and without givingthem a hearing, despite the fact that the Governor was obliged inlaw to follow such advice. I therefore hold that the writ applicationshould have been dismissed by the Court of Appeal in limine, andin the circumstances, the decision of the Court of Appeal dated 1stJune 2004 which sought to quash the impugned decision withouthearing the Board of Ministers who made the decision, should beset aside.
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Judicial Review of Decisions of Provincial Boards of MinistersIn view of the finding that the Court of Appeal erred in quashing theimpugned decision in proceedings in which the members of the Boardof Ministers were not parties and without hearing them, it is strictly notnecessary to go into the other questions on which special leave toappeal had been granted by this Court. However, as Counsel had intheir oral and written submissions addressed some of these issues, Iwish to set out herein very briefly, my views in regard to these mattersas well.
Although this Court had granted special leave to appeal on question(b), namely whether the Court of Appeal had erred in failing to considerthat the impugned decision of the Board of Ministers of the WesternProvince, which has been subsequently approved by the Governor ofthe Western Province, was not subject to judicial review, learnedCounsel for the appellant, quite rightly, did not press this line ofargument at the oral hearing and in his written submissions. Noimmunity from judicial review is conferred by our Constitution on theBoard of Ministers or the Governor, except to the limited extent thatArticle 154F(2) of the Constitution, which requires the Governor himselfto decide whether in a given situation he will act on advice or in hisdiscretion, and provides that "the decision of the Governor in hisdiscretion shall be final, and the validity of anything done by theGovernor shall not be called in question in any Court on the ground thathe ought or ought not have acted on his discretion." In Premachandrav Major Montague Jayawickrema and Another (supra), the SupremeCourt considered this provision in depth and held that the ouster ofjurisdiction of court applies only to the Governor's decision as towhether he should act on advice or in his discretion, and does notapply to the appointment of a Chief Minister under Article 154F (4). Thecourt availed itself of the opportunity of examining the ambit of thepower of judicial review with respect to the exercise of powers by aProvincial Governor, and observed at page 116, that-
"The exercise of the powers vested in the Governor of a Provinceunder Article 154F(4) excluding the proviso, is not solely a matterfor his subjective assessment and judgment; it is subject tojudicial review by the Court of Appeal. In application for QuoWarranto, Certiorari and Mandamus, the Court Appeal has powerto review the appointment, inter alia, for unreasonableness, or if
Western Province Technological Officers (Civil) Union v319
Nimal Karunaratne and Others (Saleem Marsoof, J.)
made in bad faith, or in disregard of the relevant evidence, or onirrelevant considerations, or without evidence."
The above dictum is equally applicable to the exercise of powers bya Provincial Board of Ministers, although the grounds of reviewmentioned therein are not exhaustive. As far as decisions and actionsof the Provincial Ministers are concerned, it is trite law that the extentof their amenability to certiorari and other writs is similar to that ofMinisters appointed under Chapter VIII of the Constitution, and neitherthey nor their decisions or actions enjoy any immunity from judicialreview. Our Courts have not been inhibited from exercising supervisoryjurisdiction over the decisions or actions of Ministers, whetherappointed under Chapter VIII or Chapter XVIIA of the Constitution, andgranting mandates in the nature of the writ of certiorari wheneverappropriate. I therefore, hold that question (b) on which special leavewas granted should be answered in the negative.
It is however, vital to bear in mind that as observed by Kulatunga,J. in T.N. Fernando, Assistant Commissioner of Excise, Ka/utara vNelum Gamage, Bribery Commissioner and Another5), certiorari "isa remedy whereby decisions and orders of inferior tribunals areexamined to determine whether they are within their jurisdiction orpowers." Although in modern times, the term 'jurisdiction; has becomesynonymous with 'power' and the ambit of certiorari has expanded toembrace decisions and actions of various bodies or persons exercisingpowers or functions of a public nature, the writ does not lie ifcircumstances necessary for the grant of certiorari do not exist (See,G.P.A. Silva and Others v Sadique and Ofhers<16) and WaasGunawardena v Perera and Another7!. In particular it is important toremember that unlike a Court exercising appellate powers, a writ courtdoes not get into the shoes of the authority whose action it iscompetent to review, it being concerned only with the question of thelegality or validity of the impugned action as opposed to its correctness.As Wade observes –
"The system of judicial review is radically different from thesystem of appeal. When hearing an appeal the Court isconcerned with the merits of the decision under appeal. Whensubjecting some administrative act or order to judicial review theCourt is concerned with its legality. On an appeal the question is
320Sri Lanka Law Reports[2008] 1 Sri L.R
"right or wrong?" On review the question is "lawful or unlawful?”(H.W.FL Wade and C.F. Forsyth, Administrative Law (Ninth Ed.)page 33).
The question therefore is whether there existed any grounds whichvitiated the decision taken by the Governor of the Western Province onthe advice of the relevant Board of Ministers to divide the SLTS of theWestern Province into the categories of 'buildings' and 'irrigation', or asformulated by this Court for granting special leave to appeal, did theCourt of Appeal fail to consider that there are no grounds existing toexercise judicial review against the said decision?
The Court of Appeal sought to quash the impugned decisionmainly on the basis that the decision to subdivide the SLTS into'buildings' and 'irrigation' is arbitrary, unreasonable and ultra viresthe Sri Lanka Technological Service Minutes (SLTS Minutes)published in the Gazette Extraordinary No. 1094/2 dated 23rdAugust 1999, marked P2, which came into force retrospectivelywith effect from 1st July 1994. It is common ground that at the timewhen they invoked the writ jurisdiction of the Court of Appeal, the1st to 33rd petitioners-respondents as well as the members of theappellant union held positions in several classes in the Sri LankaTechnological Service (SLTS) and were in the employ of theWestern Provincial Council. The 1st to 33rd petitioners-respondents were absorbed into the service of the WesternProvince from the Agrarian Services Department in 1990 orthereafter, while the members of the appellant union wereabsorbed into the said service from other Departments such as theBuilding Department, the Housing Department, the LandDevelopment Department, the Animal Production and HealthDepartment and the Education Department. The said SLTSMinutes specifically provided for the SLTS to be administered by a'Board' which was responsible for the management of the service,the training and deployment of its personnel and inter-departmenttransfers under the supervision of the Public Service Commission,where relevant.
It appears that for a considerable period of time after beingabsorbed into the service of the Western Provincial Council, the 1stto 33rd petitioners-respondents and the members of the appellantunion have been grouped together as members of a unified and
SCWestern Province Technological Officers (Civil) Union v321
Nimal Karunaratne and Others (Saleem Marsoof, J.)
common service, and it is apparent from letters such as the letterdated 15th November 1994 marked P22(a) (page 73 of the brief),issued to the 32nd petitioner-respondent at the time of hisabsorption into the SLTS of the Western Province, that thisarrangement was made pending the adoption of a regular servicestructure in the Engineering Organization of the Western Province.The obstacle to treating all technical officers in the service of theWestern Provincial Council as a unified service was the fact thatthe officers absorbed from Departments such as Irrigation andAgrarian Services generally had no qualifications or experience inbuilding work, and those absorbed into the service from the otherdepartments did not have competence in irrigation work.
It is significant to note that although the 4th respondent-respondent has produced marked 4R1 an organizational chartwhich somewhat differs from the chart produced by the 1st to 33rdpetitioners-respondents marked P1, a common feature of boththese charts is that the officers of the SLTS who came underDeputy Chief Secretary (Engineering) of the Western Provincefunctioned under two Directors who are designated respectivelyDirector-Buildings and Director-Irrigation, and this position is alsoevidenced by the fact that by the letter dated 6th January 1997(which is found along with P22(a) at page 74 of the brief) the 32ndpetitioner-respondent was transferred with effect from 1st February1997 to the Irrigation Division of the Western Province EngineeringOrganization coming under the Director-Irrigation. Although it isstated in paragraph 6(c) of the Counter Objections of the 1st to33rd petitioners-respondents that a majority of them "have servedfor longer periods under the Director-Buildings than under theDirector-Irrigation," it is clear from this averment that the functionaldivision of SLTS into 'buildings' and 'irrigation' had existed long priorto the making of the impugned decision dated 22nd September2000 marked 4R5(c) by the 3rd respondent-respondent Governor.It is noteworthy that the said decision was made after a fair amountof discussions between the concerned officers and representativesof the appellant union, minutes of which have been tendered toCourt marked 4R4(a), 4R4(b) and 4R4(c), upon the advice of theBoard of Ministers of the Western Province as evidenced by theMemorandum dated 9th August 2000 marked 4R5(a) and the
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Approval of the Board of Ministers dated 17th August 2000 marked4R5(b).
The 1st to 33rd petitioners-respondents challenged theimpugned decision on the basis that their promotional prospectswould be adversely affected by the said decision as it allocated 199out of the total cadre of 238 in Class I, Class II A and Class II B, and43 out of the total cadre of 52 in the Special Class of the SLTS tothe Buildings Division, leaving a mere 39 and 9 of the cadrevacancies in the respective classes to the Irrigation Division.However, I am of the opinion that since Class I, Class II A and ClassII B of the SLTS have a combined cadre without a cadre ratio, thepromotional prospects of those in these classes would not beadversely affected by the said categorization as they do not needcadre vacancies in order to be promoted to Class I. Furthermore,as pointed out by learned State Counsel for the 1st to 6threspondents-respondents, in view of the decision reflected in theminutes of the meeting held on 2nd August 2000 marked 4R4(c),even promotional prospects to the Special Class will not beadversely affected. In any event, it is expressly provided in Clause5.1 of the SLTS Minutes that "the number of posts which should bein the Special Grade shall be recommended by the Sri LankaTechnological Services Board taking into account the requirementsof each department and requirements of promotion, subject to theprovisions of Section I of Chapter II of the Establishments Code".According to Clause 3:2 of the Minutes of the Sri LankaEngineering Service (SLES Minutes published in the GazetteExtraordinary bearing No. 509/7 dated 7th June 1988 marked P23),read with its Schedule, posts in the Engineering Service aregrouped into inter alia Civil Group I – Buildings, Civil Group 2 -Highways, and Civil Group 3 – Water & Land ResourcesDevelopment, which includes Irrigation. It is clear that the functionof division of the SLTS of the Western Province into the categoriesof 'buildings' and 'irrigation' was effected as provided in Clause 5.1of the SLTS Minutes, which in fact falls in line with Clause 3:2 of theSLES Minutes. It is significant to note that the Engineering ServicesCircular No. 31 dated 3rd August 1997 marked P12 provides forofficers in the SLTS to be promoted to certain classes of the SLESwhere posts are grouped according to expertise as noted above.
5CWestern Province Technological Officers (Civil) Union v333
Nimal Karunaratne and Others (Saleem Marsoof, J.)
In the circumstances, it is abundantly clear that the division ofthe SLTS into 'buildings' and 'Irrigation' is neither arbitrary norunreasonable and is also consistent with the SLTS Minutes as wellas the SLES Minutes and other applicable circulars. Clause 4(i) ofthe aforesaid Engineering Services Circular No. 31 (P12) expresslyrequires the technical officers of the SLTS attached to ProvincialCouncils to be classified "according to their specialization on thesame grouping as the Engineers as specified in the SLES Minutes,"and in fact by the Engineering Services Circular No. 31(1) dated 5thSeptember 2000 marked X3, the earlier Circular marked P12 hasbeen amended, to enable an officer in SLTS who has passes inHydraulics and Irrigation subjects to be eligible for promotion to theEngineering Grade in the SLES. None of these circulars have beenchallenged in these proceedings. I am therefore of the opinion thatthere were no grounds for the exercise of judicial review by theCourt of Appeal in this case, and that the Court of Appeal has in factfailed to consider that the 1st to 33rd respondents and themembers of the Petitioner Union were absorbed to the SLTS of theWestern Province from different Departments and they professedexpertise and specialization in different fields, which justified thecategorization of officers in the SLTS into 'buildings' and 'Irrigation'.The Court of Appeal has also failed to take into consideration theeffect of the aforesaid Engineering Service circulars which hasfacilitated the promotion of officers from SLTS to SLES.
For the foregoing reasons, I allow the appeal, set aside thedecision of the Court of Appeal dated 1st June 2004 and makeorder dismissing the application filed by the 1st to 33rd petitioners-respondents in the Court of Appeal. In all the circumstances of thiscase, I make no order as to costs.
TILAKAWARDANE, J.-I agree.
SOMAWANSA, J. -I agree.
Appeal allowed. Judgment of the Court of Appeal set aside.