035-SLLR-SLLR-1981-2-RANASINGHE-PERERA-v.-ATTORNEY-GENERAL.pdf
Ranasinghe Perera v. Attorney-Genera! <Soza, J.)
453
CA
RANASINGHE PERERA
v.ATTORNEY-GENERAL
COURT OF APPEAL
SOZA. J„ AND ATUKORALE.J
C.A. 29/71.
0 C. COLOMBO 1467/Z.
FEBRUARY 8. 12, 14, 1980SEPTFMBER 11.12, 1980OCTOBER 16, 1980JULY 22, 1981OCTOBER 18, 1981
Pension — pensionable status – appointment on 10.5.1944 as Iron Works Instructor onprobation ■ continued service despite failure to confirm or extend probation — Freshletter of appointment as Oemonstiator on permanent and pensionable basis with effectfrom 24.7.1957 – refusal to accept appointment claiming that appointment on pensio-nable basis was from 10.5.1944 claim for declaration of pensionable status – statuss. 217ICI Civil Procedure Code.
The plaintiff was appointed an lion Woiks Instructor with effect from 10.5.1944 on oneyear's probation. At the expiration of the year the p'amtiff was neither confirmed inservice no- was Ins p'olrationai y period extended. He however continued m service andreceived increments, in 1949 an attempt was made to soy that plaintiff's appointmentwas really temporary. There was dissatisfaction over his work and conduct and an alle-gation of shortages was also made against him. His increments wore suspended at onestage and the value of the shortages was deducted in instalments from his salary. Hewas not given school vacations although his was a teaching post. Action was pven initi-ated to retire him 'at inefficiency. On 10.12.1959 however the plaintiff was infoimedthat he was being appointed a Demonstrator on a permanent and pensionable basis witheffect from 24.7.1957. The plaintiff refused to accept the appointment contending thathe was already in pensionable service from 10.5.1944.
He then filed this suit to have his status as a pensionable officer declared and alsoto recover the amounts lost by him on account of suspension of increments and theamounts deducted from him on account of shortages. He also asked for a declarationthat he was entitled to the school vacations. The mam claim of the plaintiff was that thepost he held was pensionable because he was in the permanent service and the Govern-ment in its estimates stated that teachers appointed after 15th June 1934 would be entit-led to a pension under the School Teachers Pension Ordinance No. 6 of 1927.
Held;
(1) The post which the plaintiff held was permanent and pensionable deputenaive attempts by his superiors to establish that the post was temporary.
(2) Status is the condition of membership of a class to which the law assigns par-ticular capacities or incapacities or both in the matter of exercising ri^tts or claims andpowers, enjoying privileges or liberties and immunities and being subject to duties, no-rights. liabilities and disabilities.
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{1981! 2 S.L.R.
Eligibility to a pension or pensionable status is a legal right which the Court willrecognise although the holder of such a right will have no legally enforceable right toreceive a pension. The holder of a pensionable post belongs to a class and membershipof this class invests him with a legal condition carrying generally certain capacitiesand incapacities, as foi instance, m the matter of the very eligibility to a pension andothei makers like housing, concessionary travel, immunity, subject to conditions, frommoney recovery suits and sr> on Hence the p airtiff's claim for pensionable status tal'swithin s.217(G) of the C vr Procedure Code.
(3> The plaintiH‘s money claims are prescribed. School vacations m plaintiff'scase were a perk of office. Vacanons were not an entitlement of plaintiff's servee.
Cases referred to:
Shanks v. Shanks (1942) 65 C.L.R. 334. 335.
Darnel v. Darnel 11906) 4 C.L.Ft. 563. 566.
(3i Ford v. Ford (1947) 73 C.L.R. 524, 529.
(41 Niboyet v. Niboyet (1878) 4 P.D. 1, 11.
Sah/esen or 7on Lorang v. Administrator ot Austrian Property (19271A.C.641.
Thiagarajah v. Karthigesu (1966) 69 N.L.R. 73.
Nixon v. Attorney General {1931) A.C. 184.
Gunawardene v. The Attorney-General (1948) 49 N.L.R. 359.
The Attorney-General v. Sabaratnam (1955) 57 N.L.R. 481. 485.
The Attorney-General v. Abeysinghe (1975) 78 N.L.R. 361.
Joint Anti-Fascist Refugee Committee v. McGrath (1961) 341 U.S. 123,185.
Appeal from judgment of the District Court of Colombo.
C. Ranganathan with S. Mahenthiran tot plaint ift-appellant.
S.W. Wadugodapitiya A.S.G., with 0. C. Jayasuriya S.S.C. for Attorney-General.
Cur. adv. vult.
October 23, 1981
SOZA, J.
In this case the plaintiff who at the times material to this actionwas an Iron Works Instructor in the Department of Commerce andIndustries sues the Attorney-General for a declaration that he is inrespect of the post he held entitled to pensionable status from10th May 1944, to school holidays and also for the recovery of asum of Rs. 153/80 alleged to be illegally deducted from him anda sum of Rs. 3414/- along with a sum of Rs. 1776/- per annumbeing increments and allowances wrongfully withheld from him.The Attorney-General joined issue with the plaintiff in respectof these claims. After trial the learned District Judge dismissed theplaintiff's action. The plaintiff appeals.
CA
Ranasintfte Perera v. Attorney-General (Sosa, J.)
455
It will be useful to have before us a resume' of the facts whichhave given rise to the filing of the appeal before us. The plaintiffwas appointed as Iron Works Instructor with effect from 10.5.44by letter of appointment P1 dated 2/3 May 1944. Th.e letter PImerely says that the plaintiff is appointed as Instructor to Sarikka-mulla Iron Works School, Sarikkamulla, Moratuwa and directshim to report for duty on the 10th May 1944. This was followedby a letter dated 22nd July 1944(P6) which states that the plain-tiff is appointed as Iron Works Instructor on one year's probationwith effect from 10th May 1944. The salary payable is mentionedas Rs. 360/- per annum rising by annual increments of Rs. 52/-to a maximum of Rs. 672/-. In P6 there is also a statement thatno rent allowance would be paid and the conditions of servicewould be those applicable to Government Teachers who are newentrants. The plaintiff entered upon his service in terms of hisletter of appointment but he was not informed whether he wasconfirmed in his appointment or not, nor was any extension of theprobationary period expressly made. When the plaintiff had servedin Sarikkamulla Iron Works School as Instructor from 10.5.1944till 31.1.53 he was transferred to the Industrial Research Institute,Velona. At the time of the transfer no reasons were given but laterit was alleged that the transfer was because of unsatisfactory workand failure to maintain harmonious relations with the villagers.A further transfer followed but the plaintiff's increments due after1954 were not paid.
In 1945 by letter P7 the Director of Commerce and Industriesinformed the plaintiff that he was entitled to school holidayswhich every instructor in a school is entitled to. On 16.3.1951the Acting Director of Industries sent circular P9 to the plaintiffinforming him of the Easter Vacation. P9 is for the information ofDemonstrators of Govt. Industrial Schools and addressed to theDemonstrator of the Govt. Iron Works School, Sarikkamulla.On 9.12.1952 circular No. 12 (P10) was issued by the Commissio-ner of Cottage Industries stating that there is no grade of instruc-tor in the establishment of Cottage Industries. There were super-visors and demonstrators attached to Industrial Schools but theywere not entitled to school vacations. This was followed by cir-cular P8 of 10.12.1952 to Demonstrators of Government Indus-trial Schools and addressed to the O.I.C. Iron Works School,Sarikkamulla informing him of the period qf the Christmas vaca-tion for 1952. The upshot of all this however was that the plaintiffwas deprived of the vacations he had up to 1952 enjoyed. This isone matter regarding which the plaintiff seeks relief.
In 1953 the plaintiff was charged with responsibility for shor-tages in the equipment of the Sarikkamulla School at the time he
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handed over on leaving the station on transfer. After some corres-pondence (P11, P11(a), P12) the Commissioner of Cottage Indus-tries by his letter P13 of 2.9.1954 directed the recovery of Rs.153/80 in monthly instalments of-Rs. 7/- being the value of theshortages, from the plaintiff. It is worthy of note that in P13the plaintiff is designated as Iron Works Instructor. The plaintiffin the present suit seeks the recovery of this sum of Rs. 153/80which he alleges was illegally deducted from him.
In 1955 by letter P14 of the 9th of November the plaintiff wasinformed that his increment falling due on 16.5.1955 was beingsuspended for six months owing to unsatisfactory work. On12.12.1955 by letter P15 the plaintiff was informed that the sus-pension of the increment was being extended for a further sixmonths from 16.11.1955 as there was no improvement in hiswork and conduct. In P14 and P15 the plaintiff was described asInstructor. No increments were paid from 1955 (see D1) and on22.6.1961 the Director of Rural Development and Cottage Indus-tries took action to have the plaintiff retired for inefficiency —see P22, P23 and P24. On 10.12.1959 by P17 the Director ofRural Development and Cottage Industries informed the plaintiffthat he was being appointed a Demonstrator on a permanent andpensionable basis with effect from 24.7.1957. The plaintiffrefused to accept this appointment contending that he was alreadyin the pensionable service from 10.5.1944. Thereupon the plaintiffwas informed by letter P18 of 9.5.1954 that he was being placedon a non-pensionable basis. In the circumstances the plaintiffplaims a sum of Rs. 3414/- and a sum of Rs. 1776/- per yearon account of increments due together with allowances and adjus-ted travelling claims.
The main claim of the plaintiff however is that the post ofIron Works Instructor which he held from 10.5.1944 is a pensiona-ble post. He concedes he has no legal right to a pension and accor-dingly that he cannot seek the enforcement of any legal right to apension in any proceedings at law. But what he claims in this suitis only a declaration that he held a pensionable post. Although thedeclaration he seeks would be bereft of enforceable legal consequ-ences yet, he submits, the Executive will respect it. After all thereis overwhelming public interest in fair administration by govern-ment authorities and this may, and indeed often will, bear fruit.Even if no tangible benefits will accrue the declaration per se willnot be without value. Section 217(G) of the Civil Procedure Codeprovides that a decree or order of court may, without affordingany substantive relief or remedy, declare a right or status. Theappellant takes up the position that what he is claming is a status.
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Ranasinghe Perera v. Attorney-General (Soza, J.)
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As Zamir says in his book on The Declaratory Judgment (1962),120 declaratory proceedings are often the most convenient andsometimes the only possible mode of determining status.
But firstly can it be said that a person who joins the pensiona-ble service of State acquires a particular legal status ? To answerthe question it is necessary to have before us an explanation of theword 'status.' The meaning of the word has been considered bytextbook writers and judges.
Paton in his work on Jurisprudence (3rd Edn. 1964) defines'status' as the fact or condition of membership of a group ofwhich the powers are determined extrinsically by law. A person'sstatus affects not merely one particular relationship but beinga condition affects generally, though in varying degree, a member'scapacities and incapacities. The test is that status is a conditionwhich affects generally, although in varying degrees, a person'scapacity or incapacity or both. There is a distinction betweenstatus which is a condition or capacity constituting power toacquire and exercise rights and the rights themselves which areacquired by the exercise of that capacity— see C. K. Allen . LegalDuties p. 47.
The word status is of wide import and should be given a liberalmeaning – see the case of Shanks v. Shanks.1 Griffith C. J. in thecase of Daniel v. Daniel7 explained the word "status" as follows:
"Without pretending to give an exhaustive definition, I appre-hend that the term 'status' means something of this sort: acondition attached by law to a person which confers or affectsor limits a legal capacity of exercising some power that underother circumstances he could not or could exercise withoutrestriction.”
Again in the case of Ford v. Ford3 Latham C. J. said:
"A person may be said to have a status in law when he belongsto a class of persons who, by reason only of their membershipof that class, have rights, or duties, capacities or incapacities,specified by law which do not exist in the case of personsnot included in the class and which, in most cases at least,could not be created by any agreement of such persons."
One of the few English judicial attempts at definition of the
(1942) 65 C.L.R. 334, 335.
(1906)4 C.L.R. 563, 566.
(1947) 73 C.L.R. 524, 529.
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term was by Brett L. J. in his dissenting judgment in Niboyet v.Niboyet4 where he said:
"The status of an individual, used as a legal term, means the
legal position of the individual in or with regard to the rest of
a community."
The inference from Brfett L. J.'s definition is that while a mar-ried woman has a status in law, a bachelor has not. The decision inNiboyet's case was overruled by the House of Lords in the case ofSalvesen or Von Lorang v. Administrator of Austrian Property. 5Even the definition given by Brett L. J. was disapproved — see thespeech of Lord Dunedin (p. 662). Celibacy was regarded just asmuch a status as marriage. In fact in the local case of Thiagarajahv. Karthigesu6 it was accepted that a plaintiff could bring anaction for a declaration of his status of bachelor.
Regarding the emphasis on the absence of agreement in thecreation of status it must be mentioned that this is not always so.Rank and caste, race and colour, illegitimacy and nationality forexample are forms of status where capacities and incapacities atta-ch independently of agreement. The individual has no choice inthe matter. But coverture, celibacy, official position and profes-sion for instance are matters of choice. Yet the legal conditionwhich results here from the voluntary act is something very diffe-rent from the legal condition which results from the voluntaryact of becomirtg, say a mortgagor. The mortgagor defines for him-self his own rights vis-a-vis the mortgagee and the mortgaged pro-perty. But when a woman, for example, chooses to enter intoa married state, there is something which the law imposes on herlegal condition independently.of her free election. The principlewas well explained by Viscount Haldane in his speech from theWoolsack in Salvesen's case (supra) (p. 653). His Lordship saidthat status in connection with marriage means something morethan a contractual relationship between the parties to the contractof marriage. It results from the contractual relationship but onlywhen the contract has passed into something which the law recog-nises has been superadded to it by the authority of the State wherethe ceremony has taken place. This juridical result is more thanthe mere outcome of the agreement inter se to marry of the par-ties. It is due to a result which concerns the public generally andwhich the State where the ceremony takes place superadds. Thisis something which may or may not be capable of being got ridof subsequently by proceedings before a competent public autho-
(1978) 4 P.D. 1,11.
11927] A.C.641.
(1966) 69 N.L.R. 73.
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Ranasinghe Perera v. Attorney-General (Soza, J.)
459
rity but in the meantime it carries with it rights and obligations asregards the general community. Status is a term of art and not thetitle of a legal formula. We must bear this in mind when definingthe term. Using the well-known Hohfeldian terminology only ofjural relations I would define status as the condition of member-ship of a class to which the law assigns particular capacities orincapacities or both in the matter of exercising rights or claims andpowers, enjoying privileges or liberties and immunities and beingsubject to duties, no-rights, liabilities and disabilities. But whatconstitutes a group or class of persons in contemplation of laws?With a little ingenuity and imagination society can be divided intoan almost infinite number of classes. The whole community forinstance, could be divided into a blue-eyed class, a brown-eyed anda black-eyed class. But the division would have no legal signifi-cance. In relation to status, the class must be of such a kindthat legal consequences result to the members from the merefact of belonging to it.
And when we say that legal consequences must result frommere membership of the class we must bear in mind that there canbe an infinite diversity of legal consequences attaching to differentgroups of persons. Let me illustrate this. Today a very large num-ber of persons own television sets. Each one of them is under aduty to obtain a licence to operate it. Each one of them is entitledto receive the pictures broadcast on the television network. Yetwe cannot speak of the status of T.V. owners. These ownerspossess in common certain specific rights and duties in regard toa particular thing but their capacity is not affected in a generalway. Contrast this for instance with the legal concept of infancy.The incidents of infancy bear on the general juridical capacity tocontract. The legal notion of status involves, in varying degreesalbeit, a general condition of capacity or incapacity in law. A fur-ther matter may also be noted. The capacities and incapacitiesappertaining to status are not without economic value in thatthey afford an opportunity for the acquisition of proprietaryrights. Yet status pertains not to a man's estate, not to his wealthbut rather to his welfare or well-being.
If the effect of the decree or order is to place a person in or toremove a person from such a class as we have been discussing, thenthe decree or order can be said to declare his status as contempla-ted by Section 217(G) of the Civil Procedure Code.
Even if pensionability is a status there is no legal right to apension. It was held by the House of Lords in the case of Nixonv. Attorney-General1 that there is no legal right to a pension and
[1931] A.C. 184.
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no claim for it can be enforced by any legal proceedings. Furtheras a necessary consequence of the application of this principlethere can be no right to a declaration of what the amount of thepension should be where it is granted. In Sri Lanka too the princi-ple that there is no enforceable right to a pension has been repea-tedly upheld in a line of cases – see Gunawardene v. The Attorney -General and The Attorney-Genera! v. Sabaratnam.9 In the caseof Attorney-Genera! v. Abeysinghe10 the same principle was affir-med by a majority decision.
In considering the question for decision in the case before ushowever, we should bear in mind that eligibility to a pension isone thing and the grant of a pension is quite another and a diffe-rent thing. The pension is just a delectable crumb thrown by thesovereign to his good and faithful servants. But such largess is notdistributed to all servants of the sovereign but only to such ofthem as hold a pensionable post and fulfil certain stipulated con-ditions. The distinction between eligibility for the bounty andselection to receive it must be borne in mind. Justice Jackson hadan analogous distinction in mind when he said in Joint Anti-Fascist Refugee Committee v. McGrath.11
“The fact that one may not have a legal right to get or keep
a government post does not mean that he can be judged ineligi-ble illegally/'
To be declared eligible for a pension is a legal right which thecourt will recognise although the holder of such a right will haveno legally enforceable right to receive-a pension. The holder of apensionable post belongs to a class and membership of this classinvests him with a legal condition carrying generally certain capa’-•cities and incapacities, as for instance, in the matter of the veryeligibility to a pension and other matters like housing, concessio-nary travel,’immunity, subject to conditions, from money reco-very suits and so on. Hence what the plaintiff claims in this casemust be regarded as a status within the meaning of the term as itappears in Section 217(G) of the Civil Procedure Code.
Although employers in the private sector are obliged to granttheir employees a pension the Government which should be amodel employer is immune from such an obligation. This immu-nity remains an anachronism in modern times. Vet it is a matterfor the Legislature. There is no legal right to a pension. Section
(1948) 49 N.L.R. 359.
(1955)57 N.L.R. 481,485.
(1975) 78 N.L.R.361.
(1961)341 U.S. 123,185.
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5( 1) of the School Teachers' Pension Ordinance No. 6 of 1927 andits legislative successor section 8(1) of the School Teachers' Pen-sion Act (Cap. 432) stipulate that no person shall have an absoluteright to any pension. A similar provision is found in the firstsection of the Minutes on Pensions. But as I said before this doesnot mean that a person cannot claim to belong to a class of per-sons who are qualified to receive a pension. It is true in Nixon’scase (supra) the Court held that it will not entertain a suit todetermine the quantum of a pension because that is a second ques-tion which hinges on the first question whether there is a right atall to a pension. But the status of pensionability is a question apartfrom these questions. There can surely be no objection to theCourt giving a declaration that a person holds a pensionable post,that is, holds a post which is eligible for pension. This is a statuswhich a person can claim. I am therefore of the view that theplaintiff is entitled to maintain this action under Section 217(G)of the Civil Procedure Code.
The next point is whether the plaintiff in fact holds a pensio-nable post. The advertisement (P2) in the Government Gazette inresponse to which the plaintiff applied said there were vacanciesfor Instructors and that the appointment would be on one year'sprobation and "subject to the rules laid down in the Code ofRegulations by the Education Department." The salary scale isstated to be Rs. 360/ rising by annual increments of Rs. 52/- toRs. 672/- per annum. The estimates (P3) for the years 1942/1943and 1943/1944 provide for 27 Industrial teachers on the samesalary scale as is mentioned in the advertisement P2 and in afoot-note it is stated that teachers appointed after 15th June 1934 areentitled to a pension. The plaintiff was appointed for training asan Instructor in an Industrial School by letter PI and later on22.7.1944 by letter P6 appointed as an Instructor with effect from10.5.1944. In the letter of appointment the salary payable is sta-ted to be Rs. 360/- per annum rising by annual increments ofRs. 52/- to a maximum of Rs. 672/-. No rent allowance was paya-ble. The conditions of service would be those applicable to Govern-ment Teachers who were new entrants. The appointment was onone year's probation but at the end of the year the plaintiff wasnot informed either that he was confirmed in permanent service orthat his probationary period was being extended but he continuedin service and he even received increments as they fell due thoughonly up to 1954. The plaintiff contends that in the circumstanceshe should be regarded as holding a permanent post. He invites theCourt to infer that he holds a pensionable post firstly because hispost is permanent and secondly because the Government itself' in its estimates P3 has stated that teachers appointed after 15thJune 1934 are entitled to a pension under the School Teachers'
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Pension Ordinance No. 6 of 1927. This Ordinance made provisionfor the granting of pensions from public revenue to teachers inassisted schools — see Section 3. The expression 'teacher' wasdefined as a teacher in a school maintained wholly or partiallyfrom the public funds of the island — see Section 2 as amended byOrdinance No. 29 of 1931.
TJae Director of Industries wrote D2 to the plaintiff on10.12.1949 stating that the post he held was temporary and thathe had been appointed on a probationary basis by inadvertence.The advertisement P1 calling for applications for the post ofInstructor said the appointment would be on a year's probation.Much later the letter of appointment P6 once ag,ain was to theeffect that the plaintiff was to be on one year's probation. In thesecircumstances it would be indeed naive to say after more than fiveyears that the appointment was really meant to be temporary andthat "the word 'probation' " had been "inadvertently included"in the letter of appointment. The fact that neither the advertise-ment nor the letter of appointment described the post aspermanent cannot be taken to mean that the'post was temporary.The converse is the truth. The fact that the appointment was des-cribed as 'on probation' and not described as temporary supportsthe inference it was permanent.
Was the post also pensionable ? The plaintiff was during thefirst few years of his appointment consistent!/ described as Ins-tructor. The duties which were assigned to the plaintiff had a tea-ching bias. He was trained to conduct "classes at a school accor-ding to the syllabus" approved by the Department — see P5 of2.5.1944. No doubt in the estimates no post designated as Instruc-tor was included. In the estimates P3 where provision was made inregard to Industrial Schools there were 27 posts designated asIndustrial teachers on the salary scale on which the plaintiff wasappointed. This was clearly the budgetary financial provisionunder which the plaintiff was paid. The answer to the questionwhether the plaintiff though described as an Instructor was reallyan industrial teacher in an Industrial School is provided by theletter D2 produced by the defence. Here the Acting Directorof Industries writes as follows: —
"It is now found out that you belong to the category ofIndustrial Teachers (now known as Industrial Demonstrators)who have been appointed after 15th June, 1934, and are onthis account classified as new entrants for purposes of regis-tration under the rules framed under the School Teachers’ Pen-sion Ordinance No. 6 of 1927, (as amended by OrdinanceNo. 29 of 1931 and No. 13 of 1933)."
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The letter goes on to say that the plaintiff was not qualifiedfor registration as he did not have the Industrial Teachers Certifi-cate. This letter proves one thing. Despite the fact that theplaintiff had not the requisite certificate, he was in the category ofIndustrial teachers later designated as Demonstrators though thedepartment called them Instructors. According to P3 industrialteachers appointed after June 15, 1934, are entitled to a pensionunder the School Teachers' Pension Ordinance. The plaintiff wastherefore fully qualified to receive a pension under this Ordinanceand later under the School Teachers Pension Act (Cap 432)passed in 1953. The Learned District Judge's conclusion on thepoint was unduly influenced by the statement in P10 of 9.12.1452that there is no grade of Instructor. It is the Department thatused this designation. Even after the circular P10 was issuedthere were occasions on which the plaintiff was referred to asInstructor. In P14 and P15 written in 1955 in connection with thesuspension of plaintiff's increment, he was described as Instructor.It would be unjust to make the plaintiff suffer for the ineptitudeof the Department.
Of course it was always open to the Department to change thedesignation of the plaintiff to that of Demonstrator but thiscould be done only without in any way affecting the pensionablestatus he enjoyed from 10.5.1944, The removal of the plaintifffrom pensionable status by letter P18 when he refused to acceptpensionable status with effect only from 24.7.1957 offered to himon the basis of a new appointment to the post of Demonstratorby letter P17, was certainly not warranted. In these circumstancestherefore the plaintiff was entitled to the declaration he sought,that he held a pensionable post from 10.5.1944 and the learnedDistrict Judge's conclusion on the point is not sustainable.
In regard to the money claims the learned District Judge hasrightly held that these claims are prescribed in any event andtherefore unenforceable. This finding is in my view right and I seeno ground to interfere with it.
On the question of entitlement to school vacations it must beremembered that vacations are perks of office that are granted andcould be withheld by those who grant them. Vacations are not anentitlement of the service, unlike the other holidays which attachto the ordinary public service. Therefore, the plaintiff was notentitled to the declaration he sought in regard to school vacations.
In the result, setting aside the findings of the learned DistrictJudge on the point, I hold that the plaintiff is entitled to pensiona-ble status from 10.5.1944 and therefore his removal from pensio-
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nable status was illegal. The appeal on this point is allowed.The other findings of the learned District Judge are affirmedand the appeal as regards them is dismissed. The main dispute inthis case has been on the question of pensionable status and theplaintiff has succeeded on this point. Therefore we direct thedefendant to pay the costs of the proceedings before us and in theCourt below to the plaintiff.
ATUKORALE, J.
I agree.
Appeal partly allowed.