Legal Services and Laws of Sri Lanka
SLR - 1986 Vol.1, Page No - 120
PATHIRANA AND OTHERS
SHARVANANDA, C.J., WANASUNDERA, J., RANASINGHE, J., ATUKORALA, J,
AND L. H. DE ALWIS, J,
ELECTION PETITION No, 5/83.
ELECTION PETITION APPEAL No. 1/85.
ELECTORAL DISTRICT No. 66 -AKMEEMANA.
DECEMBER 2, 3, 4, 5, 9, 11, 17, 18, 19 AND 20, 1985.
Election Petition - Disqualification of candidate in terms of Article 91 (1) (d) (vii) of the Constitution -PublicOffice,
carrying initial salary of more than Rs. 6,720 per annum - Resignation -Resignationsubmittedtowrongauthority-Is
acceptance of resignation necessary? Expressio unius exclusio alterius - Accreditedagent-Vacationofpost-DeFacio
cessation of tenure of office - Estoppel - Waiver - Practice - Article 55 (5) of theConstitution-Fundamentalrightof
equality - Article 12 of the Constitution.
Where the question was whether the 1st respondent who was a Grade III principal onasalaryscaleofwhichtheinitial
salary was not less than Rs. 6,720 per annum in the Department ofEducationhadbytenderinghisresignationfromthe
service of the State to the Regional Director of Education of the area where he wasservingandgettingsuchresignation
accepted by the Regional Director who relieved him from his duties, had effectivelyterminatedhisservicesasapublic
officer so as to qualify himself as a candidate at a Parliamentary election-
Held (Wanasundera, J. dissenting):
The letter of resignation did not bring about a valid termination of the 1st respondent's contract of service because itwas
not addressed to nor accepted by the Appointing Authority that is the Educational Services Committee. The RegionalDirector,
Galle is not the proper authority to accept the resignation.
The rule in respect of a public officer's resignation is that it can take effect only when it is accepted byhisappointing
authority, A. line must be drawn between an office which gives its holder a status which the lawwillprotectontheone
hand and on the other hand a mere employment under a contract of service. The rulethatwrongfulrepudiationorwrongful
purported termination of a contract terminates the contract does not apply to an employee whose employment is insomesense
public employment or involves the tenure of an office, or whose employment takes place under the authority ofastatuteor
regulation having statutory force or other constituent instrument giving it a publicnature.Itisonlyinoriginthat
Government service is contracted. Once appointed, the public officer requiresastatustowhichtherightsandduties
imposed by public law attaches.
The Constitution of 1978 has given a statutory dimension to the Establishment Code. The 1st respondent was boundbysection
4 of the Establishment Code to obtain proper acceptance of his resignation. The maxim expressio unius exclusio alteriusdoes
not apply although certain statutes make acceptance of resignation imperative in certain other categories of employment.The
Regional Director of Education is not the accredited agent of the State for the purpose ofacceptingthe1strespondent's
resignation from office.
Section 7: 1 of the Establishment Code in regard to the service of notice of vacation of post is intendedtosafeguardthe
interests of the State and it does not confer a righttothepublicofficertorepudiatethecontractofemployment
unilaterally. A public officer cannot plead his own breach of duty as proprio vigore terminating hisemployment.Untilthe
State chooses to serve notice of vacation of post the official continues in the eye of the law in employment.
The de facto ceasing to be a public officer even where de jure the office is continued to be held isinsufficienttoavoid
the disqualification under Article 91 (1) (d) (vii) of the Constitution.
The doctrine of estoppel is not applicable against the State in its governmental, public or sovereign capacity.
A waiver must be an intentional act of surrender of rights with knowledge of what those rights are.
The doctrine of estoppel or waiver cannot be employed to give a public authority powers it does notposses.Bywaiverone
cannot convert nullity into validity.
The practice of Regional directors accepting resignations is bad in law as it involves giving them power whichtheydonot
possess where there has been no delegation to them of the power of appointment, transfer or dismissal.
Article 55(5) of the Constitution does not protect orders or decisions of a publicofficerwhicharenullitiesorultra
vires from judicial review.
Article 12 of the Constitution cannot be invoked against discrimination made by the Constitution itself astheConstitution
is the basis supreme law and generates its own validity and therefore there is noviolationoftheFundamentalRightof
Cases referred to :
(1) Abeywickrema v. Pathirana  1 Sri L.R.215.
(2) Ganesh Ramachandra v. G.I.P. Railway Co.2 Bomb. L.R. 740.
(3) Howard v. Pickford Tool Co.  1KB 417, 421.
(4) Vine v. National Dock Labour Board  3 All ER 939.
(5) Barbar v. Manchester Regional Hospital Board  1 All ER 322.
(6) Francis v. Municipal Council of Kuala Lumpur  3 All ER 633.
(7) Vidyodaya University v. Linus Silva  66 NLR 505.
(8) Mallock v. Abdeen Corporation  2 All ER 1278.
(9) Executive committee of U.P. state warehousing corporation v. Chandrakiran Tyagi AIR 1970 SC 1244.
(10) Gunton v. Richmond LBC  3 ALL ER 577.
(11) Decro Wall international v. Practitioners in Marketing Ltd.  2 ALL ER 216.
(12) Marshll (Thomas) Exports Ltd. t. Guinle  3 ALL ER 193.
(13) Hill v. Parsons & Co., Ltd.  3 ALL ER 1345.
(14) Roshenial t. Union of Ildia AIR 1967 SC 1889.
(15) Dinesh chandra v. state of Assam AIR 1978 SC 17.
(16) De Zoysa v. Public service commission  62 NLR 492.
(17) De Alwis v. De silva  71 NLR 108.
(18) Venkaterao v. secretary of state AIR 1937 PC 31.
(19) Rangachari v. Secrtary of state AIR 1937 PC 27.
(20) High commissioner of India v. Lall AIR 1948 PC 121.
(21) Fletchar v. Nott 60 CLR 55, 97.
(22) State of U. P. v. Babu Ram AIR 1961 SC 751.
(23) State of Mysore v. sellary AIR 1965 SC 868.
(24) Shukla v. state of Gujarat  1 SCC 419.
(25) Raj kumar v. Union of India AIR 1989 SC 180, 182.
(26) Raj Narayan v. Indira Gandhi AIR 1972 SC 1302.
(27) Union of India v. Gopal Chandra AIR 1978 SC 694.
(28) A. G. v. A. D. Silva (1953) 54 NLR 529 (P. C. )  AC 461.
(29) Fernando v. Samaraweera (1951) 52 NLR 278, 285.
(30) Rhyl Urban District council v. Rhyl Amusements Ltd.  TLR 465.
(31) Barnard v. National dock Labour Board  1 ALL ER 1113.
(32) Mayes v. Mayes  2 ALL ER 397, 402.
(33) Anisminic Ltd. v. Foreign commission  1 ALL ER 208.
(34) S.E. Asia Fire Bricks v. Non-Metallic Union  2 ALL ER 689.
(35) Harford v. Lynskey  1 QB 852.
(36) Royal British Bank v. Turguand (1856) 6 E & E 327.
(37) Holy-Hutchinson v. Brayhead Ltd.  1 Q. B. 549 affd  3 ALL ER 98 (C.A.)
(38) Houghton & co. v. Northard Lowe and Wills Ltd.  1 KB 246.
(39) Kreditbank Cassel v. Schenkens Ltd.  1 KB 826.
(40) British thomson Houston Co., Ltd. v. federated European Bank Ltd.  2 KB 176.
(41) Mahony v. East Holyford Mining Co.  LR. M. 869.
(42) Re county Life Assurance Co. Ltd.  5 Ch. App. 288.
(43) Freeman and Lockyer v. Bucdhurst park properties (Mangal) Ltd.  1 ALL ER 630.
(44) Western Fish Products Ltd. v. penwith D. C. (1978) 77 LOR 185, 200-203.
(45) R. v. Home secretary ex p. Choudhary  1 WLR 1177.
(46) R. v. Home secretary ex p. Ram  3 WLR 89.
(47) Robertson v. Minister of pensions  1 KB 227.
(48) Falmouth Boat Construction Co. v. Howell  1 KB 16.
(49) Satish chandra Anand v. Union of india AIR 1953 SC 250.
(50) Purshotam Lal Dhingra v. Union of India AIR 1958 SC 36.
(51) Shyam Lal v. state of U. P. AIR 1954 S. C. 369.
(52) Marrikissoon v. Attorney-General  3 WLR 62 (P. C.)
APPEAL from the judgment of the Election judge.
K. N. Choksy, P. C. with Neville de jacolyun seneviratne, Daya pelpola, D. H. M. Jayamaha, Lakshman Perera and Miss I. R.
Rajepakse and Herman perera for petitioner-appellant.
H. L. de silva, P.C. with E. d. Wikramanayake, Gomin Dayasiri, Nimal s. de Silva, senaka Weeraratne and Chitralal Fernando
for 1st respondent.
M. S. Aziz, D. S. G. with Tony Fernando, S. C. as amicus cureae.
January 31, 1986.
SHARVANANDA, C. J.
The petitioner-appellant challenges the election of the 1st respondent as Member of Parliament for theAkmeemanaElectorate
at the election held on 18th May, 1983, He seeks a declaration that the election of the 1st respondent is void in law onthe
ground that he was a public officer who was disqualified for election as a Member of Parliament in terms ofArticle91(1)
(d) (vii) of the Constitution. The public office held by him was that of a Principal (Grade III) of Galaboda AturuwellaMaha
Vidyalaya, Induruwe, under the Department of Education of the Government of Sri Lanka. Theinitialofthesalaryofthe
office of Principal (Grade III) was more than Rs. 6,720 per annum.
The petitioner further averred in his petition that the 1st respondent has purported to resign from thesaidpublicoffice
by a purported letter of resignation dated 12th April, 1983 which had not beensubmittedtotheauthorityauthorisedto
accept the resignation of the 1st respondent nor had the purported resignation been accepted by the Competent Authority.The
petitioner further pleaded that the due procedures were not fulfilled and "accordingly there has beennovalidresignation
in fact or in law by the 1st respondent of the said public office held by him".
The petition was heard on several dates, and the learned Election Judgedeliveredjudgmentonthe25thFebruary,1985,
dismissing the election petition . He held that the 1st respondent had ceasedtobeapublicofficerwitheffectfrom
The petitioner-appellant has preferred this appeal from that judgment tothiscourt.Thisappealraisessomeimportant
questions of law.
he documentary evidence produced on behalf of the petitioner established the fact and the election judge has foundthatthe
1st respondent was a principal (Grade III) in the Department of Education and that the initial of his salary scalewasmore
than Rs. 6,720 per annum-vide documents marked P 16, P 18, P 19, P 21,P23,P24andP27.Indeedthesefactswerenot
disputed by the 1st respondent. It is also not disputed that since October 1979 the powerofappointmentofteachersand
principals (Grade III) of schools was vested in the Education ServicesCommitteewhichhadbeenappointedintermsof
Article 57 (1) of the Constitution, vide P 1, P 1 A and P2.
The principal question which arises for decision on this election petitioniswhetherthe1strespondentwasapublic
officer of the category specified in Article 19(1) (d) (vii) of the Constitution atthetimeofhisnominationon22nd
April, 1983, and on the date of his election as Member of Parliament(18thMay,1983).Counselforthe1strespondent
contended that his client had ceased to be a public officer on the relevant dates,inthefirstplacebytenderinghis
resignation from the post of Principal (Grade III) in the Department of Education with effectfrom21stApril,1983.The
letter of resignation, relied on by the 1st respondent, ismarkedP32,dated12.4.1983andaddressedtotheRegional
Director of Education, Galle. The date stamp on it shows that it was received at theofficeoftheRegionalDirectorof
Education, Galle on 12.4.1983. This letter refers to the fact that he intends to be acandidateattheelectionforthe
electoral district of Akmeemana and specifically informs the Regional Director, Galle, thatheisresigningfromservice
with effect from 21.4.83. The letter concludes with a request that his resignation beaccepted.ThethenactingRegional
Director of Education, Galle, Wijesiri Perera, has on P32 made the minute 'approved' (P32a) dated 21.4.83 and byletterP41
dated 21.4.83 written to the 1st respondent accepting his resignation from the public service witheffectfrom21.4.83.A
copy of P41 has been sent to the Secretary, Ministry of Education and to the acting PrincipalofGalabodaAturuwellaMaha
The findings of the election Judge are the evidence on record established that the 1st respondent never reported for workon
and after 21.04.1983 that the last salary he drew was for March 1983thathehadhandedoverthekeys,recordsand
equipment of the school in which he last served to theactingprincipalofthatschool thatoneJananandahadbeen
appointed to act as Principal in that schoolthat the Regional Director, Rupasinghe, who assumed duties at Galle on 1stMay
1983 was aware that the 1st respondent was engaged in an election campaign. Apart from thetermsofP32whichevinceda
clear intention on the part of the 1st respondent to relinquish all the rights and obligations under his contract ofservice
with the State, his subsequent conduct confirmed the position that there was a de facto termination of hisemploymentunder
the State in short, he never functioned as a teacher or a principal of a school or held himself out as a public officeron
and after 21.04.83.
The Regional Director of Education who is the Head of the Department intermsoftheEstablishmentCode,bothWijesiri
Perera and his successor in office Rupasinghe acted on the basis that the1strespondenthadresignedfromservice.By
letter dated 2.6.1983, the Regional Director of Education, Galle has requested the 1st respondent to pay a sum ofRs.2,395
due to the Credit Council on the basis that he has resignedfromservice.Furthernodisciplinarychargeswereframed
against 1st respondent for engaging in political activities contrary to the provisions of the Establishment Code. Thoughthe
1st respondent was not on leave from 21.04.1983, no notice of vacation of post as provided for in section 7ofChap.Vof
the Establishment Code was served on him. The State has at no stage called upon the 1st respondent to performhisfunctions
as Principal nor called for his explanation for failure to doso:theseitemsofevidencearereliedonbythe1st
respondent to show that the State acted on the basis that the 1st respondent had resigned from service.
Counsel for the 1st respondent further submitted that the Head of the Department who is theimmediatesuperiorofficerof
the 1st respondent functioning in Galle has acquiesced in and accepted the position that the 1st respondent had ceased tobe
a public officer from 21.04.1983.
Article 90 of the Constitution provides:
"every person who is qualified to be an elector shall be qualified to be elected as aMemberofParliamentunlessheis
disqualified under the provisions of Article 91."
Article 91 (1) provides-
"No person shall be qualified to be elected as a Member of Parliament or to sit and vote in Parliament:-
(d) if he is-
(iii) a public officer holding any office the initial of the salary scale of which is not less than Rs. 6,720 per annum."
One decisive question arising for determination is whether by tendering letter of resignation (P32) to the RegionalDirector
of Education, Galle and getting it accepted by him the 1st respondent had effectively terminated his contract of serviceand
ceased to be a public officer with effect from 21.04.1983.
Counsel for the appellant contended that letter of resignation (P32) is not valid in terms of the relevant provisions ofthe
Establishment Code which regulate a public officer's contract of service. P32 notbeingavalidresignationinlawthe
contractual bond "vinculum juris" between 1st respondent and theStatehasnotbeensevered.AccordingtotheDeputy
Solicitor General who appeared as amicus curiae, the letter of resignation does not comply with the said provisions and isa
The burden of counsel's submissions was that the 1st respondent remained a public officer on the materialdates,i.e.both
on the date of nomination and on the date of election.
Section 4 of Chap. V of the Establishment Code deals with the subject of resignation. It reads thus-
4:1 An officer may resign his appointment with one month's notice totheappointingauthoritythroughtheHeadofhis
Department or on payment of one month's salary in lieu thereof.
4:2 If the appointing authority refuses to accept his resignation, and the officer ceases to report forduty,heshallbe
deemed to have vacated his post as from the date of such cessation (vide section 7).
4:3 On receipt of the resignation of a pensionable officer, the Head of his Department should inform the officerinwriting
that if he resigns his appointment, he will forfeit all claims to pension or gratuity and all other benefits ofhisservice
prior to resignation should he afterwards succeed in obtaining employment under Government.
4:3:1 He should also be informed that if his resignation is accepted any applicationtowithdrawitlater,willnotbe
4:3:2 An acknowledgment to the effect that he has been informed in these terms should be obtained from him in writing.
4:4 "When forwarding a resignation for acceptance by the Appointing Authority, the Head of Department shouldstatethathe
has complied with the requirements of sub-section 4:3:
4:5 Acceptance of resignation should be notified in writing to the officer concerned.
4:6 An officer who resigns forfeits all claims to any benefits arising from his services prior to resignation,andhewill
not be entitled to any such benefits if he is subsequently re-employed."
The 1st respondent's letter of appointment dated 31st July, 1974 (P19) specifically provided that
"You are subject to regulations of the Public Service Commission and Financial Regulations, Rules of the EstablishmentCode,
Department Regulations and other Regulations issued by the Government from time to time".
It is not disputed that the letter of resignation hasnotacceptedbythe"AppointingAuthority"asrequiredbythe
aforesaid section 4(1) of the Establishment Code. P32 is addressed to the Director of Education andnottotheAppointing
Authority, which according to the delegation of authority made by the Cabinet of Ministers and the Public ServiceCommission
(P1 - Minutes of the Meeting of Cabinet held on 10.10.1979 and P2 dated 15.10 .79 appointing a Committee under Article57(1)
of the Constitution) is the Educational Services Committee By letter dated 26.10.79, marked P62, the Regional Directorswere
informed that all their subsisting powers of appointment, transfers etc., were withdrawn and that according to thedecisions
of the Cabinet, the Educational Services Committee was vested with the powers ofappointment,transferetc.,Thusitis
clear that the Educational Services Committee was the "Appointing Authority" for the purposes of the aforesaid section4of
the Establishment Code. The letter of resignation (P32) is flawed by the fact that it was not addressed to the Committeenor
was it accepted by the said Committee. The evidence shows that it was never forwardedbytheHeadofDepartmenttothe
Committee. It is to be noted that by circular dated 24.12.81 (P45) Regional Directors of Educationhadbeeninformedthat
the approval of the Committee was necessary to complete the resignation of officers of the1strespondent'scategory.But
the necessary step of acceptance of resignation by the authority competent to do so, in terms oftheaforesaidsection4,
had not been taken to give effect to 1st respondent's resignation. Thus, the purported resignation referable to P32,isnot
complete and effective.
In the preliminary objection of the 1st respondent filed on the 22nd August 1983, he hasstatedthathisresignationhas
been submitted to and accepted by the Regional Director of Education, Galle "who is theauthoritybywhomallGradeIII
Principals of Government schools are appointed, transferred and dismissed" In view of the Cabinet decision set out inP2of
15.10.79 and letter P62 of 26.10.79 the stance that the Regional Director of Education is the proper authority to acceptthe
resignation is untenable. There has been no express delegation of the powerofappointment,transferetc.,intermsof
Article 58(l) of the Constitution, to the Regional Director, Galle. Though at one stage of the election petitionproceedings
(See Abeywickrema v. Pathirana (1)). Counsel for the 1st respondent suggested thattherewasimplieddelegationofsuch
power to the Director, he categorically declared before us that he was not relying on any implied delegation.
Thus the 1st respondent's letter of resignation P32 is vitiated by the fact that it has not been duly accepted by theproper
authority. Had it been accepted, by the Educational Services Committee, the other flaws, namely one month's notice notbeing
given, nor one month's salary in lieu thereof paid nor it being addressed to the proper authority might be overlooked asnot
being fundamental defects, curable by proper acceptance. Thus counsel's contention that there hadbeennoresignation,in
terms of the provisions of the Establishment Code, on the part of the 1st respondent, hastobeupheld.Theappealthen
turns on the question of the impact of this conclusion on the issue whether the 1st respondent hadceasedtobeapublic
officer to qualify himself for the election in question?
A resignation to become effective does not need acceptance by the employer at all in the absence of any stipulations tothat
effect, reserved in the contract of employment or service rules. The giving of a notice terminating a contractualemployment
is the exercise of a right in the field of employment. The law does recognise the concept of aunilateralresignationfrom
office which takes effect proprio vigore irrespective of its acceptance by the other contractingparty.Butemploymentis
generally a contract between parties and the general principles of contract law apply to the contract of serviceanditis
open to an employee to agree to the fettering or regulating of his right of unilateral resignation. Hence any question asto
the duration of the employment, its terminability by notice, the length of the notice required to determine it,whetherthe
notice should be accepted or not, are all matters the subject of the express or implied terms of the contract ofemployment.
In the case of a government servant, in regard to the terms relevant to these issues one has to look tohisserviceRules.
The termination of services of a Public Officer can be brought about in accordance with the rulesgoverningtheconditions
of service or by the terms of his employment or by acceptance of his resignation. The Establishment Codewhichgovernsthe
conditions of service of a Public Officer provides for the termination of service of such an officer bytheresignationof
the officer. Section 4 spells out the mode of such termination. In terms of section 4 of the Code the servicesofapublic
officer do not stand terminated merely by his tendering of resignation, to a superior officer.Theruleinrespectofa
Public officer's resignation is that it can take effect only when it is acceptedbyhisappointingauthority.Tenderof
resignation by the officer merely amounts to an offer to quit the services and unless the offer isacceptedbytheproper
authority it cannot bring about the termination of services of the resigning employee.
"A contract of service is continuing in its nature and its continuance and the obligations underitcanbeterminablein
certain defined modes. Mere resignation obviously is not enough unless it be assented to or unlessitcomplieswiththose
terms which the law implies or prior agreement of the parties may permit." - Per Jenkins, C.J., in Ganesh Ramachandrav.G.
I. P. Railway Co. (2)
If an authority is not competent to pass an order which can be only passed by a superior authority, then the order passedby
him will amount to a nullity and is void. The resigner has a right to resign but the resignation can be effective onlyafter
it is accepted by the "Appointing Authority." Unless the two acts are completed, the transactionremainsininchoateform
and termination of service is not brought about. Hence the resignation sent by a public officer is no resignation in theeye
of the Law until its acceptance by the proper authority in terms of section 4 of the Code.
It was urged that in any event though the letter of resignation was not properly accepted by the State, the 1strespondent's
conduct at the relevant time manifested a unilateral repudiation, whether accepted or not, was sufficient to bring to anend
the relationship of employer and employeethus the 1st respondent has ceased to beapublicofficer.Repudiationoccurs
where a party intimates to the other by words or conduct that he does not intend to perform thecontract.Asamatterof
general contract principle, the wrongful repudiation or wrongfulpurportedterminationofacontractcannotinitself
terminate the contract.Ifoneofthepartieswrongfullyrepudiatesallfurtherliabilitythecontractwillnot
automatically come to an end. The innocent party may either affirm the contract by treating it as still in forceoronthe
other hand he may treat it as finally and conclusively discharged. Where theinnocentpartywishestotreathimselfas
discharged he must accept the repudiation. Unless and until thisisdonethecontractcontinuesinexistence,foran
unaccepted repudiation is a thing writ in water, Howard v. Pickford Tool Co. (3).
Mr. H. L. de Silva, submitted that there is however a body of authority which treats wrongful dismissal asanexceptionto
the general principle, so that the contract of employment is said to be terminatedbywrongfuldismissalevenwherethe
employee refuses to accept the dismissal as a termination of the contract. This conclusion is based on the factthatcommon
law and equitable remedy will not normally be so applied as to keep a contract of employment in beingfollowingawrongful
dismissal. If a contract of employment is been following a wrongfully terminated the remedy of the aggrievedpartyliesin
an action for damages, and the court will not grantadeclarationthatthecontractofservicestillsubsists.That
declaration will amount to an order for specific performance of personal service, which the court will not decree.
In the case of Vine v. National Dock Labour Board (4) Viscount Kilmuir, L.C., observed a page 944 as follows:
"This is an entirely different situation from the ordinarymasterandservantcase.There,ifthemaster,wrongfully
dismisses the servant, either summarily or by giving insufficient notice, the employment iseffectivelyterminated,albeit
in breach of contract. Here the removal of the plaintiff's name from the register being, in law, a nullity, hecontinuedto
have the right to be treated as a registered dock worker with all benefits which, by statutethestatushasconferredon
him. It is therefore, right that, with the background of this scheme, the court should declare his rights."
It was also observed by Lord Keith at page 948 that-
"Normally, and apart from the intervention of statute there would never be a nullity in terminating an ordinary. contractof
master and servant. Dismissal might be in breach of contract and so unlawful, but it could only sound in damages."
The above was a case where the plaintiff's employment as a registered dock worker, employedintheReservePoolundera
statutory scheme by the National Dock Labour Board, was terminated by a disciplinary committee of a local board. It washeld
that the local board, under the statutory scheme set up under the Dock Workers Regulation of Employment Order1947,hadno
power to delegate its function to a disciplinary committee and that the order of dismissal accordinglywasanullity,and
that in such a case the plaintiff was entitled to a declaration that his name was never validly removed from the registeras
he would otherwise be disabled to work as a dock-worker and he continued to be an employee of the National Board.
As enunciated in the above case the position will however be different when astatuteintervenesintherelationshipof
master and servant and the employee is given a statutory status. If there is a violation of theprovisionsofthestatute
terminating the services of such an employee, he will be eligible for a declaration that the order terminatingtheservices
is a nullity and that he continues to be in service.
In Barbar v Manchester regional Hospital Board (5) the hospital board determined the employmentofplaintiffwhomadean
appeal under clause 16 of the terms and conditions of service of hospital medical staff whichhadastatutoryforce.The
plaintiff claimed that his service was of which could not be a nullity and the plaintiff wasnotthereforeentitledtoa
declaration that his employment had never been never validly determined. It was held that the plaintiff's contra6twiththe
board was between master and servant, the termination validly determined but he was entitled to recoverdamagesforbreach
of the contract. This case was not equated to Vine's case (supra). Here, the courtwasoftheopinionthatdespitethe
strong statutory flavour attaching to plaintiff's contract, it wasinessenceanordinarycontractbetweenmasterand
servant and nothing more.
In Francis v. Municipal Council of Kuala Lumpur (6) the plaintiff was employedbytheDefendantMunicipalCouncilasa
clerk. The council purported to dismiss him. This dismissal was heldtobeultravires,becausebythetermsofthe
Ordinance establishing the council the only power to dismiss the plaintiff wasvested,notinthecouncil,butinits
President. The plaintiff asked for a declaration that he was still employed by the Municipality, his dismissal having beena
nullity. The Privy Council said at p. 637:
"Their Lordships consider that it is beyond doubt that on October 1, 1957, there was a de facto dismissaloftheappellant
by his employer the respondent. On that date he was excluded from the councils premises. Since then he has not done anywork
for the council. In these circumstances it seems to your Lordshipsthattheappellantmustbetreatedashavingbeen
wrongfully dismissed on October 1, 1957, and that his remedy lies in a claim fordamages.Itwouldbewhollyunrealto
accede to the contention that since October 1, 1957, he had continued and that he still continues to be in the employmentof
It went on to say at page 637:
"In their Lordships' view, when there has been a purported termination of acontractofservice,adeclarationtothat
effect that the contract of service still subsists will rarely be made. This is a consequence, of thegeneralprincipleof
law that the courts will not grant specific performance of a contract of service.Specialcircumstanceswillberequired
before such a declaration is made and its making will normally be in the discretion of the court. IntheirLordships'view
there are no circumstances in the present case which would make or either just or proper to make such a declaration".
In Vidyodaya University v. Linus Silva (7) it washeldbythePrivyCouncilagainthatalthoughtheuniversitywas
established and regulated by statute that did not involve that contracts of employment madewithteachersandsubjectto
section 18 (e) of the University Act No. 45 of 1958, were other than ordinary contracts between master and servant.Inthis
case the respondent was not shown to have any other status than that of a servant andproceedingsbycertiorariwerenot
available where a master summarily terminates a servant's employment. It is to be noted thatLordWilberforcedoubtedthe
correctness of this judgment in Mallock v. Abdeen Corporation (8) where he observed at page 1295:
"I must confess that I could not follow it in this country, insofar as it involves a denial of any remedyofadministrative
law to analogous employments. Statutory provisions similar to those on which the employment rested would tend to show, tomy
mind in England and Scotland that it was sufficiently one of a public character, or one partaking sufficiently of thenature
of an office, to attract the appropriate remedy of administrative law."
A distinction is to be drawn between a pure master and servant case in which there is noelementofpublicemploymentor
service, no support by statute, nothing in the nature of an office or a status which is capable of protection and thetenure
of a public office.
A line has to be drawn between an office which gives its holder a status which the law will protect specifically, on theone
hand and, on the other hand a mere employment under a contract of service.- Wade Administrative Law-5th Ed. at page 497.
In the case of the Executive Committee of U.P. State Warehousing Corporation v. Chandrakiran Tyagi (9), after reviewofthe
case on the subject, the Supreme Court of India, observed:
From a review of the English decisions the position emerges as follows The law relating to master andservantisclear.A
contract for personal services will not be enforced by an order for specific performance nor will it be openforaservant
to refuse to accept the repudiation of a contract of service byhismasterandsaythatthecontracthasneverbeen
terminated. The remedy of the employee is a claim for damages for wrongful dismissal or for breach of contract. Thisisthe
normal rule and that was applied in Barbar's case (supra) and Francis' case (supra). But when a statutory status is givento
an employee, the latter will be eligible to get the relief of a declaration that the order is a nullity and void and thathe
continues to be in service, as it will not then be a mere case of a master terminating the services of a servant .Thiswas
the position in Vine's case (Supra)."
The above was a case of a wrongful dismissal of a corporation employee by a corporation and it was heldthattheorderof
dismissal was in breach of the regulationsmadeunderthepowersreservedtocorporationsundersection54ofthe
Agricultural Produce Corporation Act of 1956. In deciding the issue the court observed at pages 1254
"The regulations are made under the power reserved to the corporation under section 54 of the act. Nodoubttheylaydown
the terms and conditions of relationship between the corporation andtheemployees.Anordermadeinbreachofthese
regulations could be contrary to such terms and conditions but would not be in breach of anystatutoryobligation,aswas
the position which this court had to deal with in the Life Insurance Corporation case, A.I.R. 1964 - S.C. 847 in theinstant
case .... the Act does not guarantee any statutory status to respondents (employees), nor does it imposeanyobligationon
the appellant in such matters. Under these a circumstances a violation of regulation 16 (3) as established in thiscasecan
only result in the order of dismissal being held to be wrongful and in consequence making the appellant liablefordamages.
But the said order cannot be held to be one which has not terminated the service wrongfully or which entitled therespondent
to ignore it and ask for being treated as still in service."
The contrary view is that the contract of employment is not necessarily in principle terminated bywrongfuldismissaleven
though no remedy may lie to maintain the contract in being (see Gunton v. RichmondLBC(10),Decro-WallInternationalv.
Practitioners in Marketing Ltd. (11), Marshall (Thomas) (Exports) Ltd. v. Guinle (12) and Hill v. Parsons & Co., Ltd. (13)).
In Chitty on Contract Vol. II, paragraph 3515 at page 732 (1983) 25th Ed., the position is summarised as follows:
"The ultimate answer is that the termination of the contract of employment is notreallyaconceptwithasingleclear
meaning but with that qualification the better view now seems to beinfavourofregardingwrongfuldismissalasin
principle terminatory of the contract. On the other hand the elective view ofterminationofcontractofemploymenthas
recently been followed in granting a declaration that wrongful dismissal was ineffective to determinethecontract.Gunton
v. Richmond LBC (supra). (Shaw, L.J. dissenting on this point) "
However, the rule that wrongful repudiation or wrongful purported termination of a contract,terminatesthecontractdoes
not apply to an employee whose employment is in some sense public employment or involves the tenure of anoffice,orwhose
employment takes place under the authority of a statute or regulation having statutory force or other constituentinstrument
giving it a public nature.
In Halsbury (4th Ed.) Vol. I, para 10, it is stated:
"It would appear that, in the absence of contrary intention, resignation from an office held under the Crownisineffective
till accepted. "
Employment generally is a contractbetweenpartiesandthereforethegeneralruleisthatthecontractcannotbe
unilaterally changed by any party to the contract. The position is different in GovernmentemploymentinwhichGovernment
derives its powers from the Constitution, to make rules laying down the conditions of service. By virtue ofsuchpowerthe
government can prescribe the conditions of service without any reference to the other party and similarly such rulescanbe
changed unilaterally without reference to employees. It is only the origin of the government servicewhichiscontractual.
Once appointed, the public officer acquires a status thereafter his relations are governed by statusandnotbycontract.
The legal position of a Government Servant is more one of status than of contract andhisrightsandobligationsareno
longer determined by consent of both parties, but by rules which are framed and altered unilaterally by theStateinterms
of Article 55 (4) of the Constitution. The hallmark of the status is the attachment to the legal relationship ofrightsand
duties imposed by public law and not by agreement of the parties." Roshenlal v. Union of India (14), Dinesh Chandra v.State
of Assam (15). Further the emoluments of a government servant and his terms of office are governed byrules,whichmaybe
unilaterally altered by the government without the consentoftheemployee.TheconditionsinGovernmentServiceare
governed by a complex code, consisting of constitutional provisions, rules framed under Article55(4)oftheConstitution
and a large mass of other rules and circulars.
The duties of status are fixed by the law. In the language of jurisprudence, status is a condition of membership ofagroup
whose powers and duties are exclusively determined by law and not by agreement between the parties concerned.
"Status signifies a man's personal condition, so far only as it is imposed upon him by the law without hisownconsent,as
opposed to the condition which he has acquired for himself by agreement. The position of a slave is a matter ofstatus,the
position of a free servant is a matter of contract. Marriage creates a status in this sense, for although it is enteredinto
by way of consent, it cannot be dissolved in that way and the legal condition created by it isdeterminedbythelawand
cannot be modified by the agreement of the parties. A business partnership on the other hand pertains to the law ofcontract
and not to that of status"- Salmond Jurisprudence (12th Ed.) pp. 240 - 241.
"A servant under a mere contract of service whatever his contractual rights be, can always be dismissed andremedyliesin
damages for breach of contract. In other words there is always a power to dismiss him even though underthecontractthere
is no right to do so. The principle is that one man will not be compelled to employ another against hiswill.Bycontrast,
the law will give specific protection to status, such as membership or office in a trade union,associationorgroupeven
though it is merely contractual this is a less personal relationship and an injunction or declaration may be granted soas
to preserve the status. A statutory status such as that of a registered Dock Worker,willbeprotectedsimilarly."-Wade
Administrative Law, 5th Ed., p. 498.
Article 55 (1) of the constitution provides:
"Subject to the provisions of the Constitution, the appointment, transfer,dismissalanddisciplinarycontrolofpublic
officers is hereby vested in the Cabinet of Ministers, and all public officers shall hold office at pleasure" and
Article 55(4) provides:
"Subject to the provisions of the Constitution, the CabinetofMinistersshallprovideforanddetermineallmatters
relating to public officers including the formulation of scheme of recruitment and codes of conduct for public officers,the
principles to be followed in making promotions and transfers, and the procedure for the exercise and thedelegationofthe
powers of appointment, transfer, dismissal and disciplinary control of public officers."
"Public Officer" is defined in Article 170 of the Constitution tomeanapersonwhoholdsanypaidofficeunderthe
Republic, other than a judicial officer but does not include certain persons specified therein.
Article 55 (4) empowers the Cabinet of Ministers tomakerulesforallmattersrelatingtopublicofficers,without
impinging upon the overriding powers of pleasure recognisedunderArticle55(1).Mattersrelatingto"publicofficer"
comprehends all matters relating to employment, which are incidental to employment and form part of the terms andconditions
of such employment, such as, provisions as to salary, increments, leave, gratuity, pension, andofsuperannuity,promotion
and every termination of employment and removal from service. The power conferred on the Cabinet of Ministers is apowerto
make rules which are general in their operation, though they may be applied to a particular class ofpublicofficers.This
power is a legislative power and thisrulemakingfunctionisforthepurposeidentifiedinArticle55(4)ofthe
Constitution as legislative, not executive or judicial in character.
A rule made in exercise of this power by the Cabinet has all the binding force of astatute,orregulation.Therelevant
Establishment Code of the Democratic Socialist Republic of Sri Lanka (P6) has been issued by the SecretarytotheMinistry
of Public Administration under the authority and with the approval of the Cabinet of Ministers. It is in the exercise ofthe
legislative power vested in the Cabinet of Minister under Article 55(4), that this Code has been issued. Though theposition
might have been otherwise prior to the Constitution, thecoderelatingtoPublicOfficersacquiresbyvirtueofits
Constitutional origin, statutory force, provided of course it is not inconsistent with any provisionsoftheConstitution,
including the articles relating to fundamental rights and Article 55(1), which enshrines thedoctrineofpleasureorthe
provision of any statute. In a case of breach of any of the mandatory rules in the code, the aggrievedpublicofficerhas,
subject to the provision of Article 55 (5) of the Constitution, a remedy in a Court of law. The enforceability ofaservice
rule is a question different from that of its character as to whether it is statutory or otherwise. All statutoryrulesare
not necessarily enforceable in a court of law. It is only the breach of a mandatory rule which is justiciable. Once,arule
is held to be mandatory and not inconsistent with the Constitution, there is no reason why it should notbeenforced,like
any other statutory rule but should be considered to be mereadministrativeinstructions,simplybecauseitrelatesto
matters relating to government service. The service-rules in the Codeembodythecontractofservicebetweenapublic
officer and the Government. It is a convenient figure of speech for applying by the law of contract. It doesnotmeanthat
the code derives its force from the contract or that the rights and obligations of the public officer are duties ofcontract
so that they cannot be varied without his consent.
The general principle in public service is that a public officer holds office at pleasure. The constitutionaldoctrinethat
public officers hold office during pleasure has two important consequences.
1. The Government has a right to regulate or determine the tenure of its employees at pleasure not withstandinganythingin
their contract to the contrary.
2. Secondly the Government has no power to restrict or fetter its prerogativepowerofterminatingtheservicesofthe
employee at pleasure by any contract made with the employee.
Counsel for the 1st respondent referred us to the case of De Zoysa v. Public Service Commission(16)andDeAlwisv.De
Silva (17) which followed it in support of his contention that the Establishment Code did not have the force of law.
In De Zoysa v. Public Service Commission (supra) H.N.G. Fernando. J. relied on the Privy Council decisionofVenkataraov.
Secretary of State (18), Rangachari v. Secretary of State (19) to reach his conclusion thatthePublicServiceCommission
rules relating to the procedure to be followed prior to the retirement of a publicofficerdidnothavethesamelegal
effect as a statutory provision.
In Venkatarao's case (supra) section 96(B) of the Government of India Act 1919 provided in expresstermsthatappointments
to Civil Service of the Crown in India are appointments during His Majesty's Pleasure. The statute also providedthatrules
could be made regulating arid conduct of civil servants. Rules were made which contained provisions forproperdepartmental
inquiry for dismissal and appeal against dismissal. It was held by the Privy Council that the rules could notlimitinany
way the legal right of the Crown to dismiss at pleasure. The rules gave the members of the civil service asolemnassurance
that the right to dismiss would not be exercised in a capricious or arbitrary manner, buttheydidnotconferanylegal
On a construction of the relevant provisions, the Privy Council held that His Majesty's pleasure was paramount and couldnot
legally be controlled or limited by the rules. Two reasons were givenfortheconclusion,namely(1)section96(B)in
express terms stated that the office was held during pleasure and there was no room fortheimplicationofacontractual
term that the rules were to be observed and (2) sub-section (2) of section 96(B) and therulesmadecarefulprovisionor
redress of grievances in the administrative process. It held that there is no right inthepublicservantenforceableby
action to hold his office in accordance with the rules and he could therefore be dismissednotwithstandingthefailureto
observe the procedure prescribed by them. The main point that was urged in Venkatarao'scase(supra)wasthatunderthe
relevant civil service rules no public servant could be dismissed except after a properly recorded disciplinary inquiry the
departmental inquiry prescribed by the rules was found not to have been held. Even so the Privy Council heldthatthatHis
Majesty's pleasure was paramount and could not legally be controlled or limited by the Rules.
In Rangachari's case (supra), a police officer was dismissed by an authority subordinatetothat,bywhichhehadbeen
appointed. The Privy Council referred to the following proviso in section 96(B) - "But no person in that service(theCivil
Service of the Crown) may be dismissed by any authority subordinate to that by whichhewasappointed"anddistinguished
Venkatarao's case (supra) with the following observation :
"It is manifest that the stipulation or proviso as to dismissal is itself of statutory force and stands onafootingquite
other than any matters of rule. . . which are of infinite variety and can be changed from time to time "
It was held that the proviso was a mandatory provision and qualified the pleasure tenure andprovidedconditionsprecedent
to the exercise of powers by His Majesty.
In Rengachari's case (supra) Their Lordships drew a distinction between the legal effect ofthestatutoryprovisionwhich
had been breached in that case and of a mere rule, framed under the statute which was inconsistent with themainprovisions
of the statute. This distinction between the rules and the provisions of the Act is well emphasised in the HighCommissioner
of India v. Lall (20).
The relevant statute in that case was Government of India Act 1935. The Privy Council (in an action by the dismissedofficer
for a declaration that the order of dismissal was ultra vires and that he was still a member ofIndianCivilService)was
satisfied that subsection 3 of section 240 which provided for reasonable opportunity being givenofshowingcauseagainst
the action purported to be taken in regard to him had not been complied with. The Privy Council madeadistinctionbetween
the rules and the provisions of the Act and ruled that subsection2&3ofsection240indicatedaqualificationor
exception to the antecedent provision in subsection 1 of section 240. It observed:
"that provision as to reasonable opportunity of showing cause against the action proposed, i.e. subsection 3 isnowputon
the same footing as the provisions now in subsection 2 and that it is no longer resting on rules alterable from time totime
but is mandatory and necessarily qualifies the right of the Crown recognised in subsection 1".
The rules which were not incorporated in the statute thus do not impose any legal restriction upon the right of the Crownto
dismiss its servant at pleasure. The rules could not override or abrogate the statute and the protection of therulescould
not be enforced by an action so as to qualify the statute, where the statute expressly and clearly laid down that thetenure
was at pleasure. The rules framed under the Act must be consistent with the And not in derogation of it. The decision ofthe
Privy Council on the provisions of the Government of India Act 1915 and of 1935, can be sustainedonthegroundthatthe
rules made in the excercise of powers conferred under the Act cannot override or modify the tenure atpleasureprovidedby
section 96 (B) or 240 of the respective Acts, as the case may be. The ultra vires nature of a rule made underthemainAct
was commented on by Latham, C. J. in Fletcher v. Nott (21):
"It is contended that these rules create legal rights so that members of the force can be dismissedonlyiftheprocedure
set forth in the rules is followed. In my opinion the rules do not confer upon the plaintiff therightwhichhecontends,
namely, the right to hold his office unless and until he is dismissed in accordance with the rules setforth.Ifaccording
to the true construction of the Act a constable holds his office only during pleasure, no rule made under the Actcanalter
the conditions of his tenure of office so as to prevent him from being dismissed at the will of the Crown ."
In my view the rules framed by the Cabinet of Ministers in the exercise of their power under Article 55 (4) cannot beplaced
on the same legal footing as the Public Service Regulations referred to inZoysa'scase(supra),DeAlwisv.DeSilva
The Establishment Code is a code of conduct for public officers and has been issuedbytheCabinetofMinistersinthe
exercise of their powers under Article 55 (4). The exercise of the power is subject to the provisionsoftheConstitution.
One of the provision being all Public Officers shall hold office at pleasure (Article 55 (1)).Noruleframedunderthis
Article can supersede the pleasure tenure of the public officers. The Cabinet of Ministers cannot makeanyruleabrogating
or modifying this tenure. If a rule or code had been made by the Cabinet within this limit, the rule made bythatauthority
in the exercise of the powers conferred by the Constitution would be efficaciouswithinthesaidlimitation.Thusrules
framed under Article 55(4) have a statutory force provided of course they are not inconsistentwithanyprovisionofthe
Constitution. In case of breach of any of those rules therefore theaggrievedpersonhasaremedyinaCourtoflaw
depending on the nature of the rule whether mandatory or directory.
It is to be borne in mind that a provision like Article 55(4) of the Constitution was not there in theearlierConstitution
and hence the ruling and reasoning in De Zoysa's case (supra) and De Alwis' case (supra) in anyevent,willnotapplyto
rules framed under Article 55(4). The Article has given a new dimension to the statutory nature of the Establishment Code.
The provision of the Indian Constitution which corresponds to Article 55 (4) of our Constitution is Article 309. Itprovides
"Subject to the provisions of this Constitution ActsoftheappropriateLegislaturemayregulatetherecruitmentand
conditions of service of persons appointed to public service and posts in connection with the affairs of the Union or ofany
Provided that it shall be competent for the President ............. or such person as he may direct in thecaseofservice
and posts in connection with the affairs of the Union and for the Governor of a state or such person as he may direct inthe
case of services and posts in connection with the affairs of the State, to make rules regulatingtherecruitment,andthe
conditions of service, of persons appointed to such services and posts until provision in that behalf is made by or underan
Act of the appropriate legislature under this Article, and any rule so made shall have effect subject totheprovisionsof
Basu in his "Shorter Constitution of India" 9th Ed. at page 697, set out the law on this article as follows:
"though the position was otherwise prior to the Constitution(Venkataraov.SecretaryofState(supra),Rangachariv.
Secretary of State (Supra) it is now settled (State of U.P. v. Babu Ram (22))therulesframedunder309orunderthe
provisions of the Constituent Acts which are contained under Article 313 (State of Mysore v. Sellary (23)) haveastatutory
force provided, of course, they are not inconsistent with any provision of the Constitution, includingArticle310itself,
which enshrines the doctrine of pleasureor the provision of any statute"- (Shukla v. State of Gujarat (24)).
The law in India is that the rules framed under Article 309 of the Indian Constitution, by The President - Governor,asthe
case may be, are justiciable and enforceable in a court of law and cannot be regarded as mere administrativedirections.If
there is a breach of the statutory rules framed under Article 309, the aggrieved government servant couldhaverecourseto
the court of redress.
If rules made under Article 309 of the Indian Constitution attract statutory force, in my view byparityofargument,the
rules made under Article 55 (4) also should be held to have statutory force.
In Raj Kumar v. Union of India (25) the Supreme Court stated that:
"Where a public servant has invited, by his letter of resignation, terminationofhisemployment,hisservicesnormally
terminate from the date on which the letter of resignation is accepted by the appropriate authority andintheabsenceof
any law or rule governing the conditions of his service to the contrary, it willnotbeopentothepublicservantto
withdraw his resignation, after it is accepted by theappropriateauthority.Tilltheresignationisacceptedbythe
appropriate authority in consonance with therulesgoverningtheacceptance,thepublicservantconcernedhaslocus
poenitentiae, but not thereafter "
The judgment of the High Court of Punjab, appealed from in the above case is reported in A.I.R. (Punjab)1966,p.221.It
sets out valid and persuasive reasons why acceptance of his resignation in the case of a government servant is necessaryfor
the termination of his services. The court said:
"We are of the opinion that acceptance of resignation is necessary before the service of an employeecancometoanend.
Such an acceptance is a necessary step in givingeffecttotheresignationanduntilthatstephasbeentakenthe
resignation cannot be said to be complete and effective. In the case of a civil servant it is not a matter affecting thetwo
parties, namely, the employee and the Government. The public has also the right to the service of all thecitizensandmay
demand them in all Departments, Civil as well as in military. We cannot lose sightofthefactthatcivilservantsare
appointed for the purposes of exercising the functions and carrying ontheoperationsoftheGovernment.Theyhaveto
discharge all sorts of duties, judicial as well as administrative, and it would result in completechaosifitwereheld
that the resignation would become effective as soon as a civil servant tendered it. The exigencies of the Publicofficemay
demand that the civil servant must carry on the operation of the Government and continue to discharge the functions tillthe
Government is able to make alternative arrangements. A political organisation would seem to be imperfect whichshouldallow
the repositories of its powers to throw off the responsibility at their own pleasure. Even if thematterbetreatedasa
contract between the parties the same result would follow. A person who has agreed to serve till his services areterminated
must first make an offer communicating his intention to terminate and that offer must be accepted."
In Raj Narayan v. Indira Gandhi (26) the Supreme Court quoted with the approval the rulings in Raj Kumar v.UnionofIndia
(supra), that when a public servant has invited by his letter of resignation determination of hisemployment,hisservices
normally stand terminated from the date on which letter of resignation is accepted by the appropriate authority and said -
'the question as to when Yasapal-Kapur's (the civil servant inquestion)resignationbecameeffectivewillhavetobe
determined with reference to his conditions of service."
In Union of India v. Gopal Chandra (27) the Supreme Court said:
"In the case of a government servant/or functionary, who cannot, under the conditions of his service/or office,byhisown
unilateral act of tendering resignation give up his service or office, normally, the tender of resignation becomeseffective
and his service/or office tenure terminated when it is accepted by the competent authority."
I am of the view that the 1st Respondent is bound by section 4 of the Establishment Codetoobtainproperacceptanceand
that his tenure of office would stand terminated only from the date on which his letter of resignation P32wasacceptedby
the appointing authority, who is the appropriate authority and that the unilateral repudiation of his office by himwasnot
sufficient to sever his connection with the service.
Mr. de Silva submitted in support of his contention that it was because under the common law acts ofunilateralresignation
are legally sufficient to terminate the contract ofpublicemployment,thatthelegislatureprovidesthatincertain
categories of employment unilateral resignation or repudiation is legally ineffective to terminate the contract. Hereferred
us to section (11) of the army act No. 17 of 1949 (cap. 357) which reads as follows:
"11(1). An officer of the Regular Force or Regular Reserve shall not have the right to resignhiscommission,butmaybe
allowed by the Governor - General to do so.
11 (2). An officer of the Regular Force or Regular Reserve who tenders the resignation of his commission totheGovernor-
General shall not be relieved of the duties of his appointment until the acceptance of the resignationisnotifiedinthe
Similar provision is found in section 11 of the Navy Act No. 34 of 1950 (Cap. 358), section 11 of the Air ForceActNo.41
of 1949 as amended by Act No. 21 of 1954 (Cap. 359) and section 27 of the Police Ordinance No. 16 of 1865, asamendedf1rom
time to time up to Act No. 32 of 1956 (Cap. 53). The violation of these provisions is an offence.Ourattentionwasdrawn
also to the Compulsory Public Service Act No. 70 of 1961 where graduates to whom the Act applies aresubjecttocompulsory
public service in terms of section 4 of the Act (here by implication, the right of resignation is takenaway).Underthese
statutes the right to unilateral resignation from office is taken away in a limited category of employment.
It is to be noted that all the statutes, referred to above were enacted prior to the coming intooperationofthepresent
Constitution of 1978. As I stated earlier the Constitutionof1978hasgivenaStatutorydimensionorbaseforthe
Establishment Code, framed under Article 55(4) of the Constitution. Inanyeventthefactthatstatutorylawmakesa
specific provision that resignation in certain specific instances is inoperative until it is accepteddoesnotnecessarily
mean that under the common law unilateral resignation was legally effective to terminate the contract ofpublicemployment.
The contention that an intention to alter the general law is to be interred from partial or limited enactmentrestsonthe
maxim "expressio unius, exclusio alterius" - In Maxwell Interpretation of Statutes, 11th Ed., p. 306-307, it isstatedthat
" ..............that maxim is inapplicable in such cases. The only inference which a court candrawfromsuchsuperfluous
provisions (which generally find a place in Acts to meet unfounded objections and idle doubts) is thatthelegislaturewas
either ignorant or unmindful of the real state of the law, or that it acted under the influence of excessive caution. Ifthe
law be different from what the legislature supposed it to be, the implication arising from the statute,ithasbeensaid,
cannot operate as a negation of its existence and any founded on such a mistake has not tie effect of making thatlawwhich
the legislature erroneously assumed to be so."
It is not safe to conclude from the aforesaid authority provisions referred to above that the legislatureassumedcorrectly
that unilateral resignation or repudiation is sufficient to bring to an end a contract of public employment.
Mr. de Silva contended as an alternative to his earlier submission, that the evidence showedthat:1strespondentbyhis
conduct had repudiated his contract of employment and that such repudiation has been accepted by the State. He urged thatan
unaccepted resignation followed by absence from duty without leave and taken with his subsequent conduct, namely hisfailure
to perform his duty as a teacher and principal, his handing over all his equipment and records of theschooltoJanananda,
the acting Principal, his nomination as a candidate for the electionandhisparticipationinapoliticalcampaignin
violation of the provisions of the Establishment Code manifested unequivocally his disposition not to be bound any longerby
the terms of the contract. Mr. de Silva maintained that P32 (letter of resignation) coupled with its attendantcircumstances
are sufficient to establish the fact of repudiation of the contract by the 1st respondent.
On the assumption that 1st respondent had unilaterallyrepudiatedthecontract thenextquestionariseswhetherthe
evidence showed that there has been acceptance of the repudiation by the State and the release ofthe1strespondentfrom
his service. The evidence shows that the 1st respondent was absentfromdutywithoutleavefrom21.4.83.TheRegional
Director of Education has stated that he did not send any notice of vacation of post although he had the authority todoso
in terms of the relevant circular - vide para 12 of P45 marked 1B11. He admitted that ifaGradeIIIPrincipaldoesnot
report for work he would issue a letter of vacation of post and report the mattertotheDirectorofEducationandthe
Secretary, Educational Services Committee, but he had not served any notice of vacation of post on the 1st respondent atany
time and that he had not called for any explanation from him for contesting a parliamentary election, whilebeingPrincipal
of a Maha Vidyalaya, in breach of section 1 of Chap. XXXII of the Establishment Code.
The evidence of Wijesiri Perera the Regional Director wasthathewasneverquestionedbytheMinistryofEducation
regarding his acceptance of 1st respondent's resignation P32 and that he had called upon the 1strespondentbyletterP42
dated 2.6.83, to pay "on account of his resignation from service with effect from 21.4.83 a sum of Rs. 2,395 due from himto
Mr. de Silva submitted that despite all his aforesaid infraction of duty nostepswhateverweretakenbytheStateto
indicate to the 1st respondent that the State was still holding him on to his contract of service and was notacceptinghis
repudiation of the contract.
Mr. Choksy's rejoinder was that there is no evidencethattheEducationalServicesCommittee,whichisthecompetent
authority under Article 58 (1) of the Constitution had accepted or was aware of the repudiation of his contractbythe1st
respondent and had released him from service by 18th May, the day of election. The learned election judge has held that-
"the Educational Services Committee is a body which met and functioned in Colombo. It seems to me that in this regard itwas
the Regional Director of Education, the head of Department who was the accredited agent of the State. By the failureonthe
part of the State's agent to take appropriate action in a situation which clearly called for action. I am satisfied thatthe
State elected to accept the repudiation of the contract by the 1st respondent. The State's silence or inaction in theproved
circumstances of this case is evidence of its election to accept the repudiation ofthecontractofservicebythe1st
respondent. Accordingly I hold that the 1st respondent ceased to be a public officer with effect from 21.4.83. "
I cannot agree with the process of reasoning of the Election Judge. In my view his conclusion isflawedbyhisassumption
that the Regional Director of Education, the head of the department was the accredited agent of the State for the purposein
issue. In terms of Article 58(1) of the Constitution, on thedelegationofpowersevidencedbyP1andP2itisthe
Educational Services Committee that would be the agent of the State in regard to appointment,transferandterminationof
services of a public officer employed by the MinistryofEducation.TheRegionalDirectorofEducationdidnothave
authority, actual or ostensible as would bind the State "Ostensible authority" involves a representation by the Principalas
to the extent of the agent's authority. No representation by the agent as to the extent of hisauthoritycanamounttoa
holding out by the principal. (A.G. v. A.D. Silva (28)). Nothing done or omitted to be done by theRegionalDirectorcould
bind the Educational Services Committee in the matter of terminationoftheserviceofthe1strespondent.Hencethe
impugned acts and omissions of a Regional Director of Education will not affect the State and cannot be treatedasevidence
of acceptance of the 1st respondent's repudiation by the state. The 1st respondent has failed to establish-theburdenbeing
on him-any act of the state releasing him for his service by the election date.
Mr. de Silva submitted that in any event the 1st respondent had vacated his post in terms of section7ofCap.Vofthe
Establishment Code. This section reads thus:
"7. Vacation of Post
7: 1 - An officer who absents himself from duty without leave will be deemed to have vacated his post from the dateofsuch
absence and he should be informed accordingly at once by registered post or by personal delivery on him.
7: 2 - Charges should not be framed against him nor should he be calledupontosubmitanexplanationforhisabsence
7:3 - If he volunteers an explanation within a reasonable time it should be considered by the authority whoholdsdelegated
authority under the Public Service Commission Rules to impose disciplinarypunishmentsonhimandpermissiontoresume
duties may be allowed or refused by that authority."
It cannot be controverted that the 1st respondent had been absent from duty without leave from 21.4.83. It was argued byMr.
de Silva that according to the aforesaid section 7:1 the 1st respondent should bedeemedtohavevacatedhispostfrom
21.4.83 and had thus vacated his post. I cannot accept counsel's construction of section 7:1. In myviewwhatthesection
means is not that a person who gets himself absent from duty without leaveautomaticallyvacateshispostandthathis
employment comes to an endbut that if he absents himself without leave, he will be deemed to havevacatedhispost,for
the purpose of further action, such as termination of his services,beingtakenagainsthim.Thatiswhythesection
requires the officer to be informed that he is considered tohavevacatedhispost.Section7:3providesthatifhe
volunteers an explanation he will be permitted to resume duty. The vacation of post under section 7 (1) isonlyprovisional
and not final. A further step confirming the vacation has to be taken by the proper authority to finalise the terminationof
service. An officer may absent himself from office without leave for unavoidable reasonssuchassuddenillnessorsome
other misfortune. If the construction contended for by Mr. De Silva that an officer, ipsofactovacateshispost,ifhe
absent without leave, is accepted, the section will work great hardship and injustice to public officers. It is tobenoted
that the Deputy Solicitor General disowned that construction.
I agree with Mr. Choksy, that section 7(1) is intended to safeguard the interests of the state and that is does not confera
right on the public officer to repudiate the contract of employment unilaterally. It is the State which alone hastheright
to treat a public officer, who absents himself without leave as having vacated his post. A public officercannotpleadhis
own breach of duty as proprio vigore, terminating his employment. It is for the other party to the contractviz:theState
to treat that breach as a ground for terminating the employment,anduntiltheStatechoosestodoso,theofficial
continues in the eye of the law, in employment. The State, in this case has not served any vacation of post notice.
Mr. de Silva went on to submit that the evidence showed that the 1st respondent had de facto ceased to beapublicofficer
on the relevant dates. He argued that the disqualification under Article 91 (1)(d)(vii) of the Constitution appliedonlyto
a public officer who is in fact holding an office, the initial of the salary scale of which is not less thanRs.6,720per
annum. According to him the de jure holding of such an office is not sufficient. There shouldbeadefactoholding.He
submitted that all the evidence pointed to the 1st respondent having de facto ceased to hold the office of Principalofthe
Maha Vidyalaya. He drew a distinction between de facto holding and de jure holding and contended that, though in law the1st
respondent may not have ceased to hold the impugned office, but if in fact he had ceased to hold that office,hewouldnot
suffer the disqualification under Article 91 of the Constitution. In my view this construction of Article 91(1)(d)(vii)
is not tenable. This Article disqualifies a particular category of public officers, viz.thosewhoseofficeattractedan
initial salary scale which was not less than Rs. 6,720 per annum. That Article does not consist of three componentssuchas
(a) a public officer (b) holding an office (c) an office the initial of the salary scale of which is not less than Rs.6,720
per annum. The words "holding any office ..................Rs. 6,720 per annum" are descriptive ofthecategoryofpublic
officers who are disqualified. These public officers holding an office the initial of the salary scale of which is lessthan
Rs 6,720 per annum are excluded from the disqualification and are entitled to political rights.Section13oftheCeylon
Constitutional Order-in-Council 1946 (Soulbury Constitution) (Cap. 379) stipulated that-
"a person shall be disqualified from being elected or appointed as a Senator or member of the HouseofRepresentatives,if
he is a public officer."
Under this section all public officers of whatever rank and drawing whatever salary were disqualified.Thedisqualification
applied to the entire class of public officers.
The Constitution of Sri Lanka (1972) which replaced the Soulbury Constitution, modifiedthisdisqualificationbygranting
political rights to a certain class of public or State Officers. It disqualified only a "state officer"holdinganyoffice
initial of the salary scale of which is not less than Rs. 6,720 per annum vide section 70(c)(v)ofthe1972Constitution.
The present 1978 Constitution has adopted this distinction. Thus the 1972 and 1978 Constitutions donotcontainageneral
disqualification of all public officers. They disqualify only a class of public officers, viz. whose office entities themto
a salary not less than Rs. 6,720 per annum. A person acquires a status of a public officer because heholdsapaidoffice
under the Republic. There is no question of a public officer not holding an office. There can be a de jure holding, and ade
facto holding of an office without being entitled de jure to it. Any officer holding de jure or de factoanofficeofthe
description referred to in Article 91 (1) (d) (vii) suffers the disqualification. The only distinctionisthatadejure
public officer continues to bear the stamp of public officer until the legal termination of his services. Whiledefactoa
public officer ceases to be such when he in fact ceases so to function, I do riot agree with the contention of Mr.DeSilva
that for the purpose of article 91 (1) (d) (vii), the officer should hold the office in the sense of in factfunctioningas
The question arises whether the Educational Services Committee or the state is estopped from questioning the validity ofthe
acceptance of 1st respondent's resignation by the Regional Director.
For a plea of estoppel to succeed the 1st respondent should establish that (a) arepresentationwasmadetohimbythe
educational Services Committee or the State that acceptance of such resignation by the Regional Director wassufficient,to
give efficacy to his resignation and (b) that the induced by such representation to act upon it, and hethereforerefrained
from obtaining the acceptance of his resignation by the Committee that the representation was thecauseofhissoacting
erroneously, that he had been led to act differently from what he would otherwise have done. The 1st respondent did notgive
evidence to substantiate any such inducement and its impact on him. Hence evidence that the1strespondentreliedonthe
representation is wanting. On the other hand in his preliminary objection dated 22ndofAugust1983,the1strespondent
The respondent's resignation has been submitted to and accepted by the Regional Director of Education, who istheauthority
by whom all Grade III Principals of Government Schools are appointed, transferred and dismissed."
This statement militates against any suggestion that the 1st respondent's conduct was influenced by anyrepresentationmade
by the Educational Services Committee. It was the result of his own erroneous view of the legal position.
The State is not subject to estoppel to the same extent as an individual or aprivatecorporation.Otherwiseitwillbe
rendered helpless to assert its powers of government and therefore the doctrine of estoppel isnotapplicableagainstthe
State in its governmental, public or sovereign capacity.
A waiver would debar a person from raising a particular defence to a claim against him arising wheneitherheagreeswith
the particular claiment not to raise that particular defence or so conducts himself as to be estopped from raising it.
A waiver must be an intentional act with knowledge. It necessarily implies knowledge of one's rightsvisavistheother
party's infraction and an election to abandon those rights. Accepting ofrentwithknowledgeofthebreachconstitutes
waiver whether the landlord intended to waive or not.
An Intention to waive a right or benefit to which a person is entitled never presumed.
"The presumption is against waiver, for though everyone is under our law at liberty to renounce any benefit towhichheis
entitled, the intention to waive a right or benefit to which a person isentitledcannotbelightlyinferred,butmust
clearly appear from his words or conduct." Per Basnayake, J. in Fernando v Samaraweera (29).
The waiver must be clearly proved.
In order that a waiver be implied from conduct there must be evidence of unequivocal act on the part of the creditorshowing
that he knew what his rights are and that he intended to surrender them.
"A waiver may be implied if such conduct consists of some unequivocal act on the part of the creditor showingthatheknew
what his rights were and that he intended to surrender them. Wille -Principles of South African Law, 5th Ed., p. 356.
The 1st respondent's plea of waiver cannot survive the application of the above tests. The evidence does notshowthatthe
Educational Services Committee was at any material time aware of the 1st respondent's abortive resignation.
The doctrine of estoppel or waiver cannot in any event be employed to enlarge the powers of apublicauthority.InPublic
Law the most obvious limitation on the doctrine of estoppel is that it cannot be invoked so as togiveanauthoritypower
which it does not in law possess. In other words no estoppel can legitimate action which is ultraviresWade-Administrative
Law, 5th Ed., p. 233.
Accordingly in Rhyl Urban Council v. Rhyl Amusement Ltd. (30) it was held that the local authority were atlibertytodeny
the validity of their own lease contrary to the rules which govern privatelettings.Noarrangementbetweentheparties
could prevent either of them asserting the fact the lease was ultra vires and void. The court cited with approval thedictum
of Lord Greene, M.R., that-
"The power given to an authority under a statute is limited to the fourcornersofthepowergiven.Itwouldentirely
destroy the whole doctrine of ultra vires if it is possible for the donee ofpowertoextendhispowerbycreatingan
estoppel." - page 475.
Waiver is closely akin to an estoppel. The primary rule is that No waiver of rights can give a publicauthoritymorepower
than it legitimately possesses. No amount of waiver can extend a public authority's power or validate action whichisultra
vires. The principle here is that law which exists for the general public's benefit may not be waived with thesamefreedom
as the rights of a private person.
"The employees of public authority may often be asked to advise orruleuponsomequestionwhichonlytheiremploying
authority can decide. Expenses may reasonably be incurred in reliance on the advice given but if it turnsouttobewrong
there is usually no legal remedy. The authority's freedom to decide as it thinks the public interest requires must beonno
account be compromised, hard though the result may be" Wade-5th Ed., p. 341.
In Attorney-General v. A.D. Silva, (supra) the Privy Council observed at page 537-
"It may be said that it causes hardship to a purchaser at a sale under the Customs Ordinance, if the burdenofascertaining
whether or not the Principal Collector has authority to enter into the sale is placed upon him.Thisundoubtedlyistrue.
But where as in the case of the Customs Ordinance the Ordinance does not dispense withthatnecessity,toholdotherwise
would be to hold that public officers had dispensing powers because they then could by unauthorised actsnullifyorextend
the provisions of the Ordinance. Of the two evils, this would be the greater one."
The evidence of witnesses called on behalf of the 1st respondent supported by thedocuments1R17,1R18,1R22-34
establish that the Regional Directors of Education in different parts ofthecountryasHeadsofDepartmenthavebeen
accepting letters of resignation and no query has been raised by the Ministry of Education orbytheEducationalServices
Committee. It is true that the Ministry had in the case of the resignation of one Stanislaus, atrainingmasterquestioned
the propriety. But no query was raised regarding the propriety of the acceptance of1strespondent'sresignation,bythe
Regional Director, Galle, although a copy of P41 was sent to the Ministry. The election Judge concludes -
"It would therefore appear that a fairly widespread practice had grown up of Heads of Departmentacceptingtheresignation
of assistant teachers in contravention of the provisions of the Establishment Code."
But wrong practice does not make good law as it involves giving the Regional Directors power which they donotpossessand
no estoppel can give the authorities power which they do not possess. Admittedly in the delegationofpowerstheRegional
Director is not the functionary vested with the power of accepting the resignations of officers of the categoryofthe1st
"An element which is essential to the lawful exercise of power is that it should be exercised by the authority uponwhomit
is conferred and by no one else. The principle is strictlyapplied,evenwhereitcausesadministrativeinconvenience,
except in cases where it may reasonably be inferred that the power was intended to bedelegable.Normallythecourtsare
rigorous in requiring the power to be exercised by the precise person or body stated in the statute,andincondemningas
ultra vires action taken by agent, sub-committee or delegates, however expressly authorised bytheauthorityendowedwith
the power" Wade at page 319.
In Barnard v. National Dock Labour Board (31) registered dock workers were suspended from their employmentafterastrike.
The power to suspend dockers under the statutory docklabourschemewasvestedinthelocalDockLabourBoard.The
suspensions were made by the Port Manager to whom the Board has purported to delegate its disciplinarypowers.Thedockers
obtained declarations that their suspensions were invalid since the Board had no power to delegate its functionsandshould
have made the decision itself. This case was approved by the House of Lords in the Vine's case (supra).
I have held supra that there was no delegation of the power of appointment, transfer or dismissal,referredtoinArticle
58(l) of the Constitution, to the Regional Directors of Education. Thepleaofwaiver'willinvolveassumptionbythe
Regional Director of Education of Powers which he does not in law possess and the legitimation action whichisultravires
and void, Hence the plea cannot be sustained. "One cannot by waiver convert anullityintovalidity."-PerSimon,J.,in
Mayes v. Mayes (32).
Mr. de Silva mounted an argument based on Article 55(5) of the Constitution which provides-
"Subject to the jurisdiction conferred on the Supreme Court under paragraph (1) of Article 126 noCourtortribunalshall
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 of the Public Service Commission or of apublic
officer in regard to any matter concerningtheappointment,transfer,dismissalordisciplinarycontrolofapublic
He vehemently contended that the validity of the order of the RegionalDirectorofEducation,Galle,acceptingthe1st
respondent's resignation, accepting P32 cannot be inquired into or calledinquestionbyanycourt.Hesaidthatthe
preclusive clause shut out any review of the validity or legality of any order or decision of a public officer,evenifit
was ultra vires or incompetent for him to make that order or decision if it was intra vires for a particularpublicofficer
to make the order or decision then it cannot be disputed that the order or decision is immune in acourtoflawfromany
challenge on whatever Ground, But if the particular officer had no legal authorityundersection58tomakethatorder
Article 55(5) does not bar a challenge of that order, but if the order/decision of the publicofficer,actingultravires
has been adopted by the "Cabinet of Ministers", a Minister, Public Service Commission, aCommitteeofthePublicService
Commission or of a public officer to whom the Public Service Commission hasmadethenecessarydelegationunderArticle
58(l), then, of course, such decision or order becomes theorderofthatconstitutionalfunctionaryandcertainlyits
validity cannot be inquired into. But as was held by this court in its order, betweenthepresentappellantandthe1st
respondent in Abeyawickrema v. Pathirana (supra):
"The provisions of article 55(5) may be invoked or applied onlywhentheorderordecision,inregardtoanymatter
concerning the appointment, transfer, dismissal or disciplinary control of apublicofficerismade,interalia,bya
'Public Officer' to whom the Public Service Commission or any Committee thereof has delegated in terms of Article 58(1)of
the Constitution, the powers ofappointment,transfer,dismissalordisciplinarycontrolofanycategoryofPublic
An order or decision by an official who had no legal authority to make that order/decision is in law and isnon-existentin
the eye of the lawsuch an order/decision is inoperative and void and it is opentoacourttodeclarethatitisa
"If one seeks to show that a determination is a nullity, oneisnotquestioningthepurporteddetermination-oneis
maintaining that it does not exit as a determination." Per Lord Reid in the Anisminic Ltd v. Foreign CompensationCommission
For the purpose of declaring it a nullity, the court has jurisdiction to inquire into and pronounce upon theinvalidityand
non-existence of such order/decision. This view of the law is implicit in thefollowingobservationofLatham,C.J.,in
Fletcher v. Nott (supra).
" If the Commissioner's action can be attributed to the Crown, as having been adopted or ratifiedbytheCrown,thenthe
foregoing reasoning will apply to show, that the dismissal. Even if, without cause, can give no right of action. If,onthe
other hand, the Commissioner had no power to dismiss and his action was not so adopted orratified,thenthepositionis
that the plaintiff has not been dismissed at all. The dismissal is by reason of its origin bad and inoperative".
Ouster clauses do not prevent the court from intervening in the case of excess of jurisdiction unreviewableadministrative
actions in just as much a contradiction as is unfettered discretion - Wade at page 357.
In S.E. Asia Fire Bricks v. Non - Metallic Union (34) the Privy Council when construing an exclusive provision of thenature
of Article 55(5) drew the distinction between an error of law, which affects the jurisdiction andonewhichdoesnotand
held that since the award in question in that case contained errors of law, which did notaffectthejurisdictionofthe
industrial court, the award could not be challenged in a court. Implicit in that ruling is the view that if the error ofthe
law related to the jurisdiction of the arbitrator to make that award, the exclusive clause would not immunise it fromattack
in a court.
The decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission (supra) shows that whenwordsina
statute oust the powers of the court to review a decision of an tribunal, they will be construed strictly and theywillnot
have the effect of ousting that power, if the inferior tribunal has actedwithoutjurisdiction-asthedecisionisa
I have held earlier that it was not competent for the Regional Director of Education, Galle to make anorderacceptingthe
resignation of the 1st respondent. Such an order does not attract finality or unreviewability under Article 55(5). Theorder
has not been adopted by the Committee or Cabinet of Ministers, for it to acquire legal validity.
Accordingly I hold against Mr. De Silva's submission on the question of jurisdiction of this court to questionthevalidity
of the order of the Regional Director, Galle. I hold that the said order is null and void in law.
Mr. Choksy submitted that it will be sufficient for thepetitionertoestablishthatthe1strespondentsufferedthe
disqualification on the nomination day 22.4.83. On the other hand Mr. De Silva contended that the crucial day is thedayof
Election - 18.5.83.
Mr. Choksy submitted that nomination is an integral part of the election process and thatifthe1strespondentwasnot
qualified on the nomination day, his election is void.
He cited the case Harford v. Lynskey (35) wherein it was held that a candidate who was disqualified for election at thetime
of the nomination by reason of his interest in a contract with alocalauthority,cannotbenominatedasacandidate,
notwithstanding the fact that the disqualification could have been removed by the date of the poll.
In Parkers "conduct of Parliamentary Elections" 1985 Ed. it is stated at page45,withreferencetoHarfordv.Lynskey
"the same conclusion would follow if the disqualification was based on the officer or employment held by the candidate."
Mr. Choksy drew our attention to section 28 (1) of the Ceylon Parliamentary Elections, Order-in-Council,1946,whichreads
"Any person eligible for election as a Member of Parliament may be nominated as a candidate for election."
Mr. de Silva referred to section 77 (a) of the Ceylon Parliamentary Elections, Order-in-Council, and statedunderthatthe
election of a candidate can be declared void on a election petition only if the candidate was at the time of theelectiona
person disqualified from election as a Member.
In view of my conclusion that the 1st respondent had not ceased to be a public officerevenontheelectionday,namely
18.5.83, and that he suffered the disqualification intermsofArticle91(1)(d)(vii)oftheConstitution,itisnot
necessary to decide this controversial point.
Finally it was submitted for the 1st respondent that the appellant's contention that unless his resignationisacceptedby
his appointing authority the public officer stands disqualified inevitably leads to violation ofthefundamentalrightto
equality. His counsel has urged that to interpret the relevant provision of the Establishment Code in such a manner so asto
make the right of candidacy (which is an integral part of thefranchise)dependentonthegrantofpermissionbythe
Executive to a section of the public service while other public officers are not sofetteredistoviolatetheequality
principle. Counsel drew our attention to certain provisions of the Constitution which countenancetherightofunilateral
resignation from office. He referred to Articles 38 (1) 47 66 (b) 103(3) 114(3) 153(3) and 156 (4) (b) whichprovide
that the office of the functionaries such as the President, PrimeMinister,MinistersandDeputyMinisters,Membersof
Parliament,CommissionerofElections anyjudicialofficerorscheduledpublicofficer theAuditor-Generaland
Parliamentary Commissioner respectively shall become vacant it the said functionary resigns his officebyawritingunder
his hand. Counsel argued that there are no intelligible differentia as between the case of the officerswhoaregiventhe
right of unilateral resignation from office by the Constitution and the case of otherpublicofficersconcerningwhomno
express provision is made in the Constitution. He said that to deny to a large numberofpublicofficerswhoserightof
resignation is not referred to in the Constitution, such a right of terminating their relationship to enablethemtostand
for election while permitting the functionaries referred to intheConstitutionthatrightoffreedomistomakean
invidious distinction that constitutes unlawful discrimination. I cannot agree with the assumption on which theargumentis
based that there are nointelligibledifferentiaorthatinvidiousdistinctionisdrawnbetweentheconstitutional
functionaries referred to in the above Articles of the Constitution and the residue public officers who are notgrantedthe
concession of unilateral resignation. Article 170 of the Constitution defines a 'Public Officer' to mean a personwhoholds
any paid office under the Republic other than a judicial officer, but does not include-
(a) the President,
(b) the Speaker,
(c) a Minister,
(d) a Member of the judicial Service Commission,
(e) a Member of the Public Service Commission,
(f) a Deputy Minister,