Legal Services and Laws of Sri Lanka

SLR-1982 Vol.1-P171

SLR - 1982 Vol.1, Page No - 171



S.C. 81/81 - C.A. Application No. 2329/80
Writ of Mandamus - locus standi - Minister's discretionary power articles 55 and 59 of the Constitution

P is a Member of Parliament. He look up the cause of 53 candidates who were selected for appointment to Grade II Class IIof
the Sri Lanka Administrative Service on the results of an Open Competitive Examination but whose letters of appointmentwere
not issued by the Respondent.

R who was Sec. Ministry of Public Administration contended that the letters were not issued because theCabinetdecidedto
withhold them consequent to a number of complaints that there were certain irregularities in the conduct of the examination.

P contended that the letters were not issued because a powerful Trade Union objected that the selectees were notmembersof
their Trade Union.

Held: Per Wimalaratna and Ratwatte J - To apply for a Writ of Mandamus it is not necessary to have a personal interestbut
it is sufficient if the applicant can show a genuine interest in the matter complained of and that he comes beforeCourtas
a Public spirited person, concerned to see that the law is obeyed in the interest of all.

2. That since the notice calling for applications from candidatescontainsaclausereservingtothe
Minister the right to postpone or cancel examinations or to refrain from filling any of the vacancies it wouldbedifficult
to impose on him a duty either to fill the vacancies or to make appointments of persons selected.

Mandamus will not issue if it will be futile.

Per Wanasundara J. Article 55 of the Constitution precludes the Court from granting relief in the matter.
APPEAL from judgment of the
Court of Appeal

Before:Wanasundera J., Wimalaratne J., and Ratwatte J.

Counsel: H. L. de Silva, S/A, with E. D. Wickramanayake and
Gomin Dayasiri for Petitioner-Appellant.
K. M. M. B. Kulatunga, Addl: S. G with
Suri Ratnapala, S.C.,
for the Respondent - Respondent.
Argued and Decided on: 21st & 22nd January, 1982.
Reasons Delivered on: 4th March, 1982.


We heard Counsel and gave our decision on 22.1.82 dismissing this Appeal. We now state our reasons.

The Petitioner-Appellant is a Member of Parliament sitting in the Opposition Benches.Hehastakenupthecauseof53
candidates who were selected for appointment to class II grade II of the Sri Lanka Administrative Service on theresultsof
an open competitive examination held in 1979 to fill 30 per cent of the vacancies, but who were not issuedwithlettersof
appointment by the Respondent, who is the Secretary to the Ministry of PublicAdministration.ThePetitionerinvokedthe
jurisdiction of the Court of Appeal and asked for a Writ of Mandamus to compel the Respondent to perform whathecallsthe
public duty of appointing these successful candidates. The Respondent answered that in view of certainallegationsmadein
respect of the holding of the Intelligence Test paper at the Nalanda College Centre where 162 candidates sat, the Cabinetof
Ministers decided that that paper be cancelled, and that all the candidates be required to sitthatpaperonceagain.In
conformity with that decision he took stepsinNovember1980,afterinformingallthecandidates,toholdafresh
Intelligence test paper and selected 248 to face a viva voce test, but before a fresh selection could be made thePetitioner
filed the present application, and the vacancies have so far not been filled.

The Court of Appeal dismissed the application with costs, but granted the Petitioner leave to appeal tothisCourtonthe
following questions:-

1. Whether Petitioner has locus standi to make this application.

2. Whether Article 55 (5) is a complete and total bar precluding this Court from inquiring into orinanymannercalling
into question, the orders and decisions of the Cabinet of Ministers and the Respondent pertaining toappointmentofpublic
officers to the Public Service ?

3. Whether the duty that the Petitioner is seeking to compel is of a public nature and not merely of a private character?

4. that the Respondent owes a duty to the State in making appointments and not to the 53 persons.

5. Whether the Court will not grant the Mandamus because it is futile?

6. that the Court will not issue a Mandamus if the application is not bona-fide made but made with theindirectmotiveof
assisting the 53 persons.

The facts as are necessary for a determination of these issues are briefly these: Altogether 2997 candidates sat thewritten
examination held on 26.5.79 and comprising papers in general intelligence, comprehension and case study,carrying200.100
and 100 marks respectively. At the Nalanda College Centre some of the candidates hadlodgedacomplaintthatthepacket
containing the general intelligence paper had been opened 25 minutes before and not 10 minutes before thecommencement,and
that two candidates who were accommodated near the table where the papers were opened may have had an unfairadvantage and
some of the candidates refused to sit the paper at that centre. However, 248 candidates who had obtained therequiredmarks
in the three written papers were called for a viva voce test, and from them 53 were selected, and their names werepublished
on the notice board of the Ministry of Public Administration on 24.12.79. Letters of appointment were in fact prepared tobe
dispatched to them, but before they were posted they were intercepted by a Ministry Official and the53whoweresonear
found themselves yet so far, as they never received their letters of appointment.

The Petitioner alleges that a trade union, namely the Jathika Sevaka Sangamaya (J. S. S.) affiliatedtothegovernmentin
power was responsible for the interception of the letters for the reason that themajorityofthe53selectedwerenot
members of that trade union. The respondent however averred that the appointments were not made becauseofallegationsand
counter allegations about the conduct of the examination and not for the reason alleged by the petitioner. Subsequently,the
Cabinet of Ministers by a decision dated 27.8.80 directed that all candidates be called upon to sit a fresh paper ingeneral
intelligence, and he took steps accordingly.

The Court of Appeal has found as a fact that the 53 candidates were not appointed because of suspicion ofirregularitiesin
the conduct of the written paper in general intelligence, and not as a result of pressure fromtheJ.S.S.andthatapart
from inviting the Court to draw inferences of bad faith, no reliable material had been placed to establishthateitherthe
respondent or the Cabinet of Ministers had acted unlawfully. There is no application to this Court forleavetoappealon
this finding of fact, but in spite of the Additional S.G.'s preliminary objection to the petitioner canvassingthefindings
of fact, we permitted learned counsel for the petitioner to refer to such facts as may be necessary foradeterminationof
the six questions formulated above.

Much of the arguments before us related to the first question, that is whether thepetitionerhasthelocusstandi.The
Court of Appeal has considered with a great degree of thoroughness the evolution in English Law, of the requirement oflocus
standi in applications for Mandamus - from the earliest decision in the Queen Vs. Guardians of the Lewisham Union (1897)1QB
498, (where the requirement was the existence in the petitioner of a legal right to the performance of a public duty)upto
the most recent decision in Inland Revenue Commissioners Vs. National Federation of Self Employed andSmallBusinessLtd.,
(1981) 2 WLR 722 (where the requirement now is that the applicant should have sufficient interest in the matter to whichthe
application relates). Tambiah J. has discerned from a study, of the decided cases that two requirementsmustbesatisfied.
They are (i) that an applicant for Mandamus must show some interest over and above the interests of the community as awhole
or the class of the community to which he belongsand (ii) that even where he comes forward in the public interesthemust
be able to show some personal interest in the matter complained of. In his viewthepresentPetitionerdoesnotsatisfy
either of these tests. L. H. de Alwis J. has notcometoafindingastowhetherthepetitionerhassatisfiedthe
requirement of a sufficient interest in the performance of a public dutybecauseinhisviewtherespondent'sdutyto
appoint these 53 selectees is not a public duty. There is therefore no decision by the Court of Appeal on the question asto
whether Mr. R. P. Wijesiri M.P. has a sufficient standing to institute these proceedings.

In this connection it would be relevant to refer to the views of an eminent jurist on thequestionoflocusstandi.Soon
after the decision of the Privy Council in Durayappah Vs. Fernando(1967)3WLR289,inanArticleentitledUnlawful
Administrative Action in (1967) 83 L.O.R. 499, H. W. R. Wade expressed the view that one of the merits of Certiorari isthat
it is not subject to narrow rules about Locus standi, but is available even to strangers, astheCourtshaveoftenheld,
because of the element of public interest. In other words it is a genuine remedy of public law, andallthemorevaluable
for that reason (at p. 504). As regards the applications for Mandamus they should, in hisview,inprinciplebenomore
exacting than it is in the case of the other prerogative remedies,becausepublicauthoritiesshouldbecompellableto
perform their duties, as a matter of public interest at the instance of anypersongenuinelyconcerned andinsuitable
case, subject always to discretion, the Court should be able to award the remedy on theapplicationofapublicspirited
citizen who has no other interest than a due regard for the observance of the law- Wade - Administrative Law(4thEd)608.
The result of a restrictive doctrine of standing, therefore, would be to encourage the government to break the lawyetthis
is exactly what the prerogative writs should be able to prevent (p. 609). To restrict Mandamus tocasesofpersonallegal
right would in effect make it a private law remedy (p 610). These observations, with whichIaminrespectfulagreement,
appear to make the second requirement , insisted upon by Tambiah J. i.e.: some personal interestinthemattercomplained
of, unnecessary. But the first requirement ought, in my view, to be satisfied and it is satisfied if the applicantcanshow
a genuine interest in the matter complained of, and that he comes before Court as a public spirited citizen concerned tosee
that the law is obeyed in the interest of all, and not merely as a busy body perhaps with a view to gain cheap publicity.As
to whether an applicant satisfies this second requirement will depend on thefactsofeachcase.Therewillalwaysbe
categories of persons whose interest in seeing that justice is done by public authorities is more than thatoftheaverage
citizen. A Member of Parliament mayundercertaincircumstancesfallintothatcategorybecause"MembersParliament
represent the whole community, responsible in the last resort, as Burke pointed out, to their own conscience.Theyarenot
mere delegates of their constituents" Wade & Phillips - Constitutional Law (7th Ed) p. 124.

In applying the principles we gather from decisions of the English Courts on the question of locus standi we have to bearin
mind that after the adoption of a Republican Constitution our members Parliament have a character different to M.P.'s ofthe
pre Republican era. According to the preamble to our present Constitution they thefreelyelectedrepresentativesofthe
people of Sri Lanka, who have mandate from, and an obligation to the people to see that just, social, economicandcultural
order may be attained.

As stated earlier, the written test was held on 26.5.78. The matter of the irregularity in the holdingoftheintelligence
test paper at one of the centres was raised in Parliament on 9.11.79 by another opposition M.P. who demanded thatthewhole
examination cancelled. In reply to a question raised by the same M.P.on1.12.79theMinisterofPublicAdministration
assured the House and the country that there were no serious irregularities. On 22.12.79 Excellency the President,inreply
to a letter addressed to him another Opposition M.P., replied that investigations conducted theMinisterofEducationand
the Commissioner of Examination had revealed that the physical circumstances of supervision had necessitated theopeningof
the packet 25 minutes before instead 10 minutes before the commencement of the paper and that irregularitieswhatsoeverhad
been committed. It is only thereafter that the names of the successful candidates were published on the notice boardofthe
Ministry on 24.12.79. Then again the C.I.D. replied on 31.12.79 to the Railway Clerical Service Union, whichhadalsomade
allegations of corruption that "there was no evidence to accept that any offence had takenplace".On12.2.80theNation
Clerical Service Union wrote to H. E. the President that ithadconfidenceinthelimitedcompetitiveexaminationand
requested that a fresh examination be held. The letters of appointment were interceptedon15.5.79.On9.6.80theUnion
received a reply that the U.N.P.

Working Committee had taken a decision to suspend the appointments to the S. L. A. S. based on theresultsofthelimited
competitive examination. After the Government had decided to cancel thewrittenpaperingeneralintelligence,anM.P.
speaking on behalf of the Deputy Minister of Public Administration stated in Parliament that the letters ofselectionwhich
had been signed and which had been sent to the tappalsectionforpostingon15.5.79werenotdespatchedbecauseon
representations made by the Public Service National Trade Union Federation he had requested the Respondent nottopostthe
letters to the 53 successful candidates.

On 3.9.80 and again on 25.9.80 the Petitioner spoke in Parliament on behalf of the 53 candidates and said that it would bea
grave injustice to them who had been waiting for-one year with great frustration and hoping that theappointmentswouldbe
given soon. He requested the government not to commit excesses against the honest, educated and efficient public servantsof
this country and thought the result would be the spreadoffrustrationanddisgustinthewholepublicservice.The
petitioner reverted to this matter once again in Parliament on 4.11.80. and referred to theearlierrepliesgivenbythe
government that inquiries conducted by the department of examination and even by the C.I.D. revealed thatnoirregularities
had taken place, and that therefore the 53 candidates had been discriminated against.

In the light of the sequence of events, the results of theinvestigationconductedbytheauthoritiesandthegenuine
interest evinced by the Petitioner it would not be correct to label him as a mere busybodysimplyinterferinginthings
which do not concern him. In instituting these proceedings he has acted bona fide as he may have thought that hewasacting
in the public interestthis was one of the reasons that influenced me to delete the order for costs made against him bythe
Court of Appeal.

The second question we are called upon to decide is less troublesome. It involves a simple application ofArticle55(5)of
the Constitution. In terms of paragraph (1) of Article 55 the appointment, transfer, dismissal anddisciplinarycontrolof
public officers is vested in the Cabinet of Ministers, and allpublicofficersholdofficeatpleasure.Paragraph(3)
empowers the Cabinet to delegate such powers to the Public Service Commission (P.S.C.), except suchpowersashavetobe
exercised over Heads of Departments. Article 58(l) empowers the P.S.C. to delegate itspowersofappointmentsetc.toa
public officer. So that the respondent, who is a public officer,holdsonlyadelegatedpower,whichpowerultimately
resides in the Cabinet of Ministers. Now paragraph (5) of Article 55 provides as follows:-

Subject to the jurisdiction conferred on the Supreme Court under paragraph (1) of Article 129nocourtortribunalshall
have power or jurisdiction to inquire into, pronounce upon or in any manner call in question, any order ordecisionofthe
Cabinet of Ministers, a Minister, the Public Service Commission, a Committee ofthePublicServiceCommission,orofa
public officer, in regard to any matter concerning the appointment, transfer, dismissal or disciplinary control ofapublic

The present application not being one under Article 126(1) where a public servant is complaining that anyfundamentalright
of his has been infringed by executive or administration action, it is the contention of thelearnedAdditionalS.G.that
Article 55(5) of the Constitution completely precludes this Court from questioning in these proceedings thedecisioneither
of the respondent not to send the letters to the successfulcandidatesorthedecisionoftheCabinettocancelthe
Intelligence test paper.

Mr. H.L. de Silva contends, however, that the present application is not one seeking to question anydecisionofapublic
officer in regard to an appointment. But it seems to us, and there is no doubt, that by this applicationthepetitioneris
seeking to question the decision of the respondent "concerning an appointment". Themoderntrend,afterthedecisionin
Anisminic Ltd. Vs. Foreign Compensation Commission (1969) 2 A.C. 147 is not to give effect to such preclusive clauses ifthe
decisions sought to be quashed are proved to be unlawfuland that notwithstanding the fact thatthepreclusiveclauseis
contained in a written constitution rather than in an ordinary statute it would not afford an answer to unlawful acts ofthe
executive - Bindra, Interpretation of Statutes (6th Ed) P. 808. But even assuming his submission tobecorrect,thiswill
not help the petitioner, in the absence of proof that the decision is clearly unlawful. The Court of Appeal hasfoundasa
fact that the decision was made not as a result of trade union pressure but because of allegationsandcounterallegations
regarding the holding of the examination. I am therefore of the view thatArticle55(5)precludesusfromgrantingthe
petitioner any relief.

In view of his answers to the first and second questions Tambiah J. has not considered it necessary to deal withthenature
of the respondent's duty in making appointments to the public service. de Alwis J. has taken the view that the duty, ifduty
there be to appoint the selectees is a private, and not a public duty. The notice calling forapplicationsfromcandidates
contains a clause reserving to the Ministry the right to postpone or cancel the examination if it considers itnecessaryto
do so. It also reserved the right to refrain from filling any of the vacancies. It is therefore difficult toimposeonthe
respondent an obligation in the nature of a public duty either to fill the vacancies ortomaketheappointmentsofthe
person selected.

On the issue of "futility" the two Judges have disagreed. Tambiah J. has taken the view that as therespondenthimselfdid
not have the power to refuse to appoint if the Court were to grant a writ of Mandamus, butonlyanapprehensionthatthe
Cabinet of Ministers would frustrate it, de Alwis J. says that the Cabinet has the power to rescind any appointmentmadeby
the respondent in obedience to the order of Court. He bases his view on an application of Article 59(c) oftheConstitution
which empowers the Cabinet of Ministers to alter, vary or rescind any appointment made by a public officer holdingdelegated
powers from the P.S.C. In view of ouranswerstoquestions2&3aboveitappearsunnecessarytoembarkuponan
interpretation of Article 59(c).

It has been said that the petitioner's motive in instituting these proceedings was to assist these 53 persons rather thanto
serve the public interest. It is not improbable that he wished to assist them, but it would be unfairbyhimtosaythat
that was the sole motive. The interest taken by him from the time he knew that the appointments were notgoingtobemade
are matters of record. As I have stated earlier his actions have been bona fide and mainly in the publicinterest.Butthe
law is against him. Hence our decision to dismiss this appeal without costs and also the decision todeletetheorderfor
costs made against him in the Court of Appeal.

I agree with the conclusions of Wimalaratne, J., that thisappealshouldbedismissedwithoutcostsandalsotothe
direction deleting the order for costs made in the Court of Appeal.

Article 55 precludes us from granting relief in this matter and in these circumstances I do not wish to make apronouncement
on the question of locus standi.

Ratwatte,J. -

I agree with Wimalaratne. J..

Appeal dismissed.

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