Legal Services and Laws of Sri Lanka

SLR-1982 Vol.2-P538

SLR - 1982 Vol.2, Page No - 538

S. C. 1/82
JUNE 15, 1982

Constitution - Article 114 - Scheduled public officer - Necessity for appointment by Judicial Service Commission.

The petitioner-appellant was an officer in Class I of the General Clerical Service employed as a Clerk in the DistrictCourt
of Colombo. He was transferred by an order of the Director of Combined Services to theMetereologyDepartmentwitheffect
from 1.1.81 because he was found to be unsuitable for employment in the Courts.

The petitioner-appellant made application to the Court of Appeal to quash the order by WritofCertiorarionthegrounds
that he was a scheduled public officer by reason of thefactthathewasemployedintheDistrictCourtbeforethe
Constitution of 1978 came into force and therefore only the Judicial Service Commission could transfer him and that tooonly
to another Court.

'Scheduled public officer' is defined in Article 114(b). This definition included a class of officers which was specifiedin
the Fifth Schedule, Generally Clerks and Typists etc. working in theCourtswerespecifiedintheFifthSchedule.All
appointments, transfers, dismissals etc. of scheduled public officers were effected by the Judicial Service Commission.
Held -

(1)That in the absence of an appointment by theJudicialServiceCommissionthepetitioner-appellantcouldnot
become a scheduled public officer.

(2)That the Director of Combined Services had the power to transfer thepetitioner-appellanttoapostinthe
Combined Services.

Cases referred to:
(1) Kodeeswaran v. Attorney- General (1969) 72 N.L.R. 337

(2) Reilly v. The King (1934) A.C. 176, 180

APPEAL from judgment of the Court of Appeal.

V.S.A. Pullenayagam with Faiz Mustapha, Mangalan Kanapathipillai and Deepali Wijesundera for petitioner-appellant

Sarath Silva, D.S.G. with Kalinga Wijewardena, S.C. for respondent-respondent.

July 8, 1982.

Immediately before the commencement of the Constitution of the DemocraticSocialistRepublicofSriLanka(7.9.78)the
petitioner-appellant, Palitha Sirinaga, was an officer in Class I of the General ClericalService(G.C.S.)employedasa
clerk in the District Court of Colombo. He was so employed until he was transferredtotheDepartmentofMetereologyby
order of the Director of Combined Services, the respondent, with effect from 1.1.81. The transfer hadbeenorderedatthe
request of the Judicial Service Commission (J.S.C.) which had found the petitioner unsuitable for employment in the Courts.

The appointment, transfer, dismissal and disciplinary control of public officers, other than those public officersappointed
by the President of the Republic of Sri Lanka, is vested by Article 55(1) of the Constitution in theCabinetofMinisters.
The Cabinet is empowered by Article 55(3) to delegate such powers, except in the case of Heads of Departments, to thePublic
Service Commission (P.S.C.)and the P.S.C. is in turn empowered by Article 58(1) to delegate such powers in respectofany
category of public officers to a public officer. The Director of Combined Services is the public officer to whomtheP.S.C.
has delegated such powers over non-staff officers of the General Clerical Ser. ice. Public Administration Circular
No.130 dated 18.10.78 issued on the orders of the Cabinet is the relevant document of delegation.

The Constitution of 1978 also created a category of public officers to beknownas"scheduledpublicofficers",andby
Article 114(1) vested the, appointment, transfer, dismissal and disciplinary control of this category in theJ.S.C.Article
114(6) defines "scheduled public officer" to mean "the Registrar of the Supreme Court, The Registrar of the Court ofAppeal,
the Registrar of any Court of First Instance, or any public officer employed in the Registry of the Supreme Court, theCourt
of Appeal, or any Court of First Instance, included in a category in the Fifth Schedule, or in such other categoriesasmay
be specified by Order made by the Minister in charge of the subject of Justice, and approved by Parliament, and publishedin
the Gazette". The FifthScheduleincludesClerks,Fiscals,Interpreters,Stenographers,TypistsandBinders.Family
Counsellors have subsequently been added. There could be no doubt that the framers of the Constitutionintendedcreatinga
closed service of those administrative and other officers employed in the Courts who arerequiredtocarryoutjudicial

The petitioner challenged the respondent's power to transfer him,andsoughttohavethetransferquashedbywayof
certiorari in the Court of Appeal. He challenged the order on the ground that by reason of being "employed" intheDistrict
Court of Colombo immediately before the commencement of the Constitution he was a ,"scheduledpublicofficer" thatthe
power to transfer him is vested in the J.S.C.and that' the J.S.C. is empowered to transfer him only to a postwhichcould
be held by a scheduled public officer, that is, to a post in any of the Courts included in the definition clauseinArticle

The respondent made and filed an affidavit in which he took up the position that as the petitioner had not been appointedby
the J.S.C., the petitioner was not a scheduled public officerand that he, as the authority empowered to transfernon-staff
officers in the G. C. S. lawfully transferred, the petitioner to a post in the public service.

Although the Supreme Court is vested with the sole and exclusive jurisdiction to hear and determine any question relatingto
the interpretation of the Constitution, the Court of Appeal did not refer to the Supreme Court the questions which arosefor
determination. Instead the Court of Appeal determinedthatbyreasonofbeing"employed"intheDistrictCourtthe
petitioner was a "scheduled public officer," and that 'appointments' bytheJ.S.C.atenecessaryonlyinthecaseof
officers appointed after 7.9.78. But the Court of Appeal dismissed the petition for thereasonthatthereisnothingin
Articles,114 which prevents the J.S.C. from releasing him to the combined services from which he had been appointedtothe,
District, Court.

We are concerned in this appeal with only that category of public officers employedintheRegistriesoftheCourtsof
Justice immediately before the commencement of the Constitution.Whatisthecriteriontodeterminewhethertheyare
"scheduled public officers"? Whilst learned Counsel for the petitioner stressed the aspect of the fact of beingemployedin
the Courts on the crucial date as the criterion, the learned Deputy Solicitor General argued that appointment bytheJ.S.C.
is the only method by which the transformation of a public officer to a"scheduledpublicofficer"cantakeplace.The
D.S.G. has thus invited us to overrule the first finding of the Court of Appeal, namely that thepetitionerwas"scheduled
public officer" on the date he was transferred.

When a public officer 'simpliciter' (if I may usethatterm)istransferredintoa"scheduledpublicofficer"there
certainly is a change in his status. The authority vested with the power to transfer him, withthepowertopromotehim,
with the power to take disciplinary action against him, and with the power to dismisshim,changes.Withthatchangeof
status may also take place a change in the terms and conditions of his service. Such alteration inhisstatusandinhis
terms and conditions of service can take place, in my view, only with his consentit cannot be foisted onhimwithouthis
consent. Therefore the accident of being "employed" in any of the Courts on the date of the promulgation of theConstitution
can never be a sound criterion for determining his status.

Continuity of service for public officers on the same terms and conditions or an option to retireonpensionandgratuity
when those terms and conditions Were changed has been a significant feature in all our ConstitutionssinceCeylonattained
Dominion Status. Under the Donoughmore Constitution the Secretary of State for the Coloniesexercisedasupremeauthority
over the public services of Ceylon. The right to dismiss at pleasure was implied and recognised, and the pay and conditions
of service were regulated by or under delegated authority from him.TheSoulburyConstitutionchangedthemasters.The
Ceylon (Constitution) Order-in-Council, 1946 (Cap.379) established a Public Service Commission and vested in it the powerof
appointment, transfer, dismissal and disciplinary control of public officers. Along with that change it providedbyArticle
63(2) that certain categories of officers who held appointments subject to the approval of the Secretary of State wouldhave
the option to retire on pension. When the Soulbury Constitution was replaced by the first RepublicanConstitutionin1972,
whilst stipulating in section 107(1) that every state officer shall hold office during thepleasureofthePresident,it
also provided in Chapter XV for the. continuation in service of Judges, Public officers and others under the sametermsand
conditions. When the present Constitution was promulgated, continuity of service was provided for in a Chapterdealingwith
Transitional ProvisionsArticle 164(b) stipulates that every person who before the commencement of the Constitutionwasin
the service of the Republic, or any local authority or public corporation shall continueinsuchserviceunderthesame
terms and conditions.

Here, then, is a Constitutional guarantee of continuity in the public service under the same terms and conditionsasbefore
the commencement of the Constitution. "Under the same terms and conditions" especially when these words occurinawritten
Constitution must necessarily have a clear meaning. What then are these terms and conditions? They cannot be anyotherthan
the terms and conditions of their contract of service with the State. If there had been any doubt asregardstheexistence
of a relationship which possessed the legal characteristics of a contract between the then Crown andthepersonsappointed
by the Government of Ceylon to serve in the civil administration, such doubts were clearedbythedecisionofthePrivy
Council in Kodeeswaran Vs. Attorney General (1). Under the Order-in-Council, 1946, public " servants held office(asindeed
they do now) at pleasure. But, as stated by 'Lord Atkin in Reilly vs. The Kink (2), "a power to determine a contract atwill
is not inconsistent with the existence of a contract until so determined". ThisdictumwascitedwithapprovalbyLord
Diplock in Kodeeswaran (at p 341). The position is not different under the Republican Constitution.

These terms and conditions attached to their contract of employment would be contained in documents such asthelettersof
appointment, the Establishment Code, Public Administration Circulars etc. issued or published by the authorityempoweredby
the Constitution to issue or publish them. Theywouldnecessarilyencompasssuch.termsandconditionsasrelateto
emoluments, allowances, increments,efficiencybars,leave,interdictions,dismissalsorotherformsofpunishment,
procedure at disciplinary inquiries, prospects of promotion and a host of other matters. The guaranteeofcontinuityisa
guarantee that the same, terms and conditions would apply. Implicit in this guarantee is that if there is to be achangein
these terms and conditions, public officers would be given an option of either accepting the new termsorcontinuingunder
the same, old terms. I am therefore of the view that before a public officer's designation is altered to that of ascheduled
public officer within the meaning of Article 114(6) his consenttothenewtermsandconditionsisnecessary.Ifhe
consents, then he has to receive a letter of appointment from the Judicial Service Commission.

In the background of this assurance of continuity the adoption of a criterion based upon the fact of beingemployedinthe
Courts immediately before the commencement. of the Constitution leads to absurd results. Letmegiveanillustration.By
virtue of Article 169(2) the former Supreme Court ceased to existso did the Registry oftheformerSupremeCourt.What
then, would be the position of those public officers employed in the Registry oftheformerSupremeCourt?Inorderto
conform to the assurance of continuity as public officers they had, no doubt to be employed inoneoftheCourts,either
established or recognised by the new Constitution. They had no alternative but to be so employed,lesttheyforfeitedall
their rights in the public service. But they were employed not on the terms and conditionsapplicabletoscheduledpublic
officers, because such terms and conditions were not in existence at the commencement of the Constitution. Thisillustration
fortifies my conclusion that by appointment alone can a public officer change hisstatustothatofascheduledpublic

My view is also supported by the absence of a "deeming provision". Deeming provisions areusuallyincludedtoputbeyond
doubt a construction that might otherwise be uncertain. Whereas there are in the Constitutiondeemingprovisions,suchas
that all persons who immediately before the commencement of the Constitution were Members. oftheNationalStateAssembly
shall be deemed to have been elected as Members of Parliament [Article 161(a)]and that allAttorneys-at-Lawadmittedand
enrolled under the provisions of the Administration of Justice Law No. 44 of 1973 shall be deemed to have beenadmittedand
enrolled as Attorneys-at-Law of the Supreme Court created and established by the Constitution, [Article169(11)].Thereis
no such deeming provision in relation to public officers employed in the Registries of the Courts immediatelypriortothe
commencement of the Constitution, to the effect that they shall be deemed to be scheduled public officers within themeaning
of Article 114(6). The reason appears to me to be that the framers of the Constitution, having given all public officersthe
assurance of continuity under the same. terms and conditions, could nothaveincludedadeemingprovision,whichwould
necessarily have curtailed their freedom of Contract, and would be contrary to such assurance.

I would therefore uphold the contention of the Deputy Solicitor Generalthatintheabsenceofanappointmentbythe
Judicial Service Commission the petitioner-appellant was not a "scheduled public officer", and thattherespondentinhis
capacity as Director of Combined Services had the power to transfer him to a post in the Combined Services.

This finding would suffice to dispose of this appeal. The further question as to whether a scheduled public officer couldbe
released by the J.S.C. and thereafter transferred by the Director of Combined Services would, to a large extent, dependupon
the terms and conditions laid down for "scheduled public officers". As those terms and conditions have notbeenbroughtto
our notice it is not possible to provide an answer to that question.

This appeal is accordingly dismissed with costs.

RATWATTE, J. - I agree.

SOZA, J. - I agree.

Appeal dismissed.

Wold Wide Shipping available for all merchandise