025-NLR-NLR-V-71-J.-W.-DE-ALWIS-Petitioner-and-V.-C.-DE-SILVA-Director-of-Public-Works-Res.pdf
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ALLES, J.—De A lifts t>. De Silva
1967Present: AUes, J., and Tennekoon, J.J.W. DE ALWIS, Petitioner, and V. C. DE SILVA (Director ofPublic Works), Respondent
8. C. 265/67—Application fcrr the issue of a Mandate in the nature of a
Writ of Mandamus
l'vl'lir. officers—Ceyton Government Manual oj Procedure, as. 46, 47—AdministrativeRegulations made thereunder—They do not have the force and character ofIan—Regulation 20—Ceylon (Stale Council) Order in Council, 1931, as, 39 (1),39 (2)—Ceylon (Constitution) Order in Council, 1946, aa. 72, 87 (1), 37 (2).88(2)—Ceylon Indcjxndencc Order in Council, a. 7 (c)—Interpretation Ordin-ance, a. 17 (/) (e)—Meaning of irord “ enactment ”—Remedy of mandamus —Scope.
'Die Administrative Regulations laid down in the Ceylon GovernmentManual of Procedure do not have tho status of “law ” and non-compliancewith them cannot be enforced by mandamus. Section 87 of the Ceylon(Constitution) Order in Council, 1946, denied to regulations made under it theforce and character of law. Nor is section 17 (1) (c) of the InterpretationOrdinance applicable to thoso Regulations, for an Order in Council does notfall within the definition of an “enactment”.
The petitioner, who was an officer in tho Public Works Department, forwarded,through tho respondent who was the head of his Department, two petitionsA ” and “ B ” addressed to the Public Service Commission and the Secretaryto the Treasniy, respectively. In the present application for the issue of awrit of mandamus against the respondent, tho petitioner, relying on certainprovisions of tho Administrative Regulations contained in the Ceylon Govern-ment Manual of Procedure, praj-ed that the respondent be directed to forwardthe two aforesaid petitions to their respective addressees.
Held, that a writ of mandamus could not be issued, because no statutoryduty of a public nature was owed by the respondent to the petitioner to forwardthe aforesaid petitions to their respective addressees. Moreover, mandamuswas not available to the petitioner for the reason that the duty which aroseunder the Regulations was not owed to him but to the Crown.
Application for a writ of mandamus against the Director ofPublic Works.
N.Sivagnanasunderatn, with L. S. Bartlett and K. Kanag-Iswaran, forthe petitioner.
H. L. de Silva, Crown Counsel, for the respondent.
Cur. adv. vult.
October 22, 1967. Aixes, J.—
At the conclusion of the argument we dismissed this application withcosts and stated that we would give our reasons later. We now set downthe reasons for our order.
AXiLBB, J.—De Alxcie v. De Silva
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The petitioner, while holding the poet of Senior Deputy Director ofPublic Works in the Public Works Department, was interdicted from dutyon 1st October, 1960, on an allegation that he had accepted an illegalgratification. An inquiry into the allegation was held by a Tribunalappointed by the Publio Services Commission which by its report heldthat the charge against the petitioner was not proved. The PublicServices Commission however altered the findings of the Tribunal, foundthe petitioner guilty and directed that he be compulsorily retired forinefficiency as a merciful alternative to dismissal. Thereafter all pensionrights and emoluments to which he was entitled during the period of hisinterdiction were paid to him. In March 1965, the petitioner addresseda newly constituted Public Services Commission which offered himre-employment in the public service from 1st March 1966, in a post inthe Department on a lower scale to that which he held previously, whichoffer the petitioner accepted.
On 20th November 1966 and 16th February 1967, the petitionerforwarded two petitions marked ‘ A ’ and 1B ’ on matters affecting hispersonal interests and his position in the Department to the Public ServicesCommission and the Secretary to the Treasury respectively, through therespondent who was the head of his Department. Copies of the petition .marked * B * had been sent direct to the Secretary, to the Treasury andthe Chairman and Members of the Public Services Commission andthe Secretary to the Treasury has replied on 13th September 1967 thatlie was unable to grant the petitioner any relief. The petition marked‘ A * was forwarded by the respondent without any comments by him on18th December 1966 to the Publio Services Commission and theCommission has replied in- the same terms as the Secretary to theTreasury.
The present application for the issue of a mandate in the nature of aWrit of Mandamus against the respondent was filed on 18th July 1967and prayed that the respondent be directed to forward the two aforesaidpetitions to their respective addressees. Since the addressees haveconsidered the petitions and replied to them, the necessity for the issue of aWrit at the present, juncture hardly arises. Counsel for the petitionerhowever submits that the petitioner should be awarded the costs of thisapplication on. the ground that he was constrained to come into. Court atthe time he did and that there was at that time an unfulfilled duty owed tohim by the respondent. We accordingly invited, Counsel for the petitionerto satisfy us that a statutory duty of a public nature was owed by therespondent to the petitioner to forward the aforesaid petitions to their/respective addressees; we now give our reasons why we are unable toaccede to the submission of Counsel for the petitioner that a writ lies inthis case.
The main complaint of the petitioner is that the respondent has failedto comply with the provisions laid down in the Manna! of Prooedureregarding correspondence and departmental procedure and in particular
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ALLES, J.—De Ahois v. De Silva
sections 46 and 47 (relating to the reports by Heads of Departmentsregarding petitions forwarded through them) and the rules made there-under. These are Administrative Regulations contained in the CeylonGovernment Manual of Procedure and it was the submission of Counselthat these Regulations had the force of law, a non-compliance with whichattracted the writ of mandamus.
An examination of the history of these Regulations is necessary inorder to consider whether Counsel’s submissions are entitled to succeed.
Under Articles 39 (1) and 39 (2) of the Ceylon (State Council) Order inCouncil, 1931, the administrative procedure relating to the control andtransaction of governmental business through the Executive Committeesand Officers of State was regulated by rules made by the Governor. Inpursuance of these Articles, the Governor prescribed the rules of procedurefor the transaction of business concerning subjects or functions with whichthe Executive Committees and the Officers of State had to deal. Theserules are contained in Government Gazette No. 7,858 of 5th June 1931,and continued to be operative until 1946. In 1946 the Governor underArticle 87 (1) of the Ceylon (Constitution) Order in Council, 1946, wasempowered to modify, add to or adapt “ the provisions of any general order,financial regulation, public service regulation or other administrativeregulation or order, or otherwise for bringing the provisions of any suchadministrative regulation or order into accord with the provisions of thisOrder or for giving effect thereto.” In pursuance of these powers theGovernor notified that “ the Administrative Regulations of the Govern-ment of Ceylon are by this Regulation modified, added to and adapted witheffect from the date of the first meeting of the House of Representatives,to read as set out in the Schedule ” (vide Government Gazette No. 9,769of22.9.1947). The Schedule contained the old Administrative Regulationssuitably modified and adapted to the new constitutional arrangements.It is these regulations that have been published by the Government-under the title of “Manual of Procedure” referred to earlier and theyinclude provisions in regard to petitions by public officers. Undersection. 7 (c) of the Ceylon Independence Order in Council, the validityof these Regulations was not affected and they were continued in operationuntil they were revoked or replaced by new Regulations. The Regula-tions therefore continue to be in operation up to the present day. Itis however not every regulation made under the Order in Council of 1946that has the force of law. Section 87(2) states that every regulation madeunder subsection (1) of section 87 “ shall have effect until it is amended,revoked or replaced by the appropriate Minister or authority under thisOrder ”. This language contrasts strongly with other sections of the Orderin Council where it has been laid down that regulations made under suchother sections shall have the force of law (vide sections 72 and 88 (2)). Itis not strange that the Order in Council while setting up an e xclusive lawmaking authority viz., Parliament, when it gave power to any otherauthority to make rules or regulations in a limited field or context, was
ALLE8, J.—De Alwia v. De Silva
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careful to Bay which of such rales or regulations shall have the force oflaw and which not. The Order in Council clearly denied to regulationsmade under section 87 the force and character of law.
It was also submitted for the petitioner that the InterpretationOrdinance in section 17 (1) (e) gave the force of law to rules published inthe Gazette (which includes regulations and by-laws); but this provisioncontemplates only such rules, regulations or by-laws as are made underany “enactment”. An enactment has been defined to “include anOrdinance as well as an Act of Ceylon * An Order in Council does notfall within the definition of an “enactment”. This i.s perhaps anotherreason why the Order in Council states categorically that only certainregulations made under an Order in Council have the'force of law.
* „
In De Zoysa v. The Public Service Commission*1 the present ChiefJustice had occasion to consider whether the rules made under thePublic Service Regulations had the force of law and after a considerationof a history of these regulations (which' is- similar to thehistory to the Administrative Regulations) held that the rules inrelation to the retirement of public officers did not have the same legaleffect as a statutory provision. Unlike the Administrative Regulationsthese Regulations seriously affect the tenure of office of public servantsdealing as they do with the appointment, transfer and dismissal of publicofficers and the disciplinary procedure by which they should be governed.The Administrative Regulations only regulate a course of'conduct for theguidance of public officers and are intended primarily to ensure the smoothfunctioning of work in Government Departments. The very nomenclaturegiven to these Administrative Regulations—‘ Ceyfen GovernmentManual of Procedure ’—indicates that these are a set of administrativerules necessary to regulate the transaction of business in Governmentoffices. To apply the language of the Privy Council in Venkata Bao v.Secretary of State 2 “ the rules are manifold in number and most minutein particularity and axe all capable of change.” To give the effectof law to such regulations is bound to hamper the efficient functioningof governmental business. That is probably the reason why inregulation 20 all questions regarding the interpretation or applicationof any of these regulations were vested in the Secretary to theTreasury.
It seems to me therefore abundantly clear that the AdministrativeRegulations laid down in the Manual of Procedure do not have the statusof “ law ” and that non-compliance with these rules cannot be enforcedby Mandamus. The above reasons would be sufficient to dispose of thisapplication but Crown Counsel submitted two further grounds whymandamus was not available in this case. The first was that the duty, ifany, which arose under the regulations in question was one owedriot to thepetitioner but to the Crown. In support of this proposition CrownCounsel cited the observations of Charles, J. in The Queen v. The Secretary
• (1937) A. I. It. 31.
1 (I960) 62 N. L. R. 492.
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Jafferjte v. Ceylon Mercantile Union
*of Stale for War1. I entirely agree. The duty to comply with theregulation is one which the respondent, as a public servant himselfowes to the Crown whose servant he is and not to the petitioner who isa subordinate officer in his Department. Crown Counsel’s furthersubmission was that for Mandamus to lie the applicant must have a legalright to the performance of some duty of a public and not of a privatecharacter (Perera v. Municipal Council of Colombo2) and that even aduty arising under a statute may be a duty of a private kind(Perera v. Ceylon Government Railioay Uniform Staff Benevolent Fund)3.Tn the instant case the duty arises, if at all, under a set of rulesdesigned for the internal regulation of the duties and conduct ofservants of the Crown and is devoid of any characteristics which wouldmake it of a public nature.
m
There are no merits in this application either in law' or on the factsand it must therefore be dismissed.
Tennekoon, J.—I agree.
Application dismissed.