Legal Services and Laws of Sri Lanka


SLR-2000 Vol.2-P175

SLR - 2000 Vol.2, Page No - 175

KOTAKADENIYA

v.

KODITHUWAKKU AND OTHERS
COURT OF APPEAL.

DE SILVA, J.

CA 1135/99.

24TH, 31ST MARCH, 2000.

Writ of Certiorari - Transfer of Police Officers -Delegation of power by thePublicServiceCommissiontotheInspector
General of Police - Could a Senior Deputy Inspector General of Police be transferred by the inspector GeneralofPolice?-
Ultra vires - Ouster clause - Applicability of Article 55 - Constitution - Interpretation Ordinance S.22 - Mala fides.

The Petitioner who is a Senior Deputy Inspector General of Police.wastransferredbytheInspectorGeneralofPolice
(I.G.P.). The Petitioner alleged that the purported transfer was. in effect a demotion and the I.G.P hasnoauthority/power
to transfer him as that power/authority is given to the Public Service Commission (P.S.C.) and the P.S.Chasnotdelegated
that function to the I.G.P.
It was contended by the 1st Respondent. (IGP) that the rank of Senior Deputy Inspector General (S/DIG) falls within theRank
of Deputy Inspector General (DIG). the reason being that S/DIG's are in fact 'D.I.G.'s' andtheP.S.C.hasdelegatedthe
power of transfer of D.I.G's to the I.G.P. (1" Respondent).
It was further contended that Article 55(5) of the Constitution ousts the jurisdiction of court to inquire intoorcallin
question any order of any Public Officer in regard to any matter concerning'. . . transfer. . .'of a Public Officer.

Held:
(1) It would appear that upto December 1992, the P.S.C. had exercised the power over all gazetted officersnamely,S/DIG's,
DIG's, S.S.P's etc., In 1992 the then I.G.P has requested that the delegation of power of transfer ofallofficersofand
below the rank of D.I.G to be given to him. The P.S.C had obliged by delegating the power of transfer of all Policeofficers
of and below the rank of D.I.G to the then I.G.P even though at that time the S/DIG rank was in existence.
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(2) Considering the documents placed before Court it appears that the ranks, (S/DIG's and W.G.), are distinctandseparate,
the S/DIG being senior to the D.I.G and is in a separate cadre.
(3) The ouster clause would be of no effect if the order is made by an officer who does not have legal authoritytodoso.
In such a case, the decision is null and void.
(4) The I.G.P. has no power or authority to transfer a S/DIG and the decision therefore is ultra viresthereforecourthas
jurisdiction to hear and determine the question in issue.
Per De Silva, J.
''The clarification by the P.S.C(1 R3) does not withstand much scrutiny in the face of all the material and I am of theview
that a document issued on second thought does not have the effect of validating aninvalidactbytheI.G.Pnamelythe
transfer of the Petitioner."
(5) Allegation of mala fides demands proof of a higher degree.

APPLICATION for a Writ of Certiorari.
Cases referred to :
1. Abeywickrema vs Pathirana [1986) 1 Sri. L.R 120

2. Athapattu vs Peoples Bank [1997) 1 Sri. L.R 208

3. Chandrasena vs Attorney General [1989] 1 Sri. L.R. 120

4. Gunarathne vs Chandrananda de Silva (1998) 3 Sri. L.R. 265

5. Gunasinghe vs Dissanayake [1994] 2 Sri. L.R 132
Chula de Silva, P .C., with Rohan Sahabandu, Chandana Liyanapatabendi and Athula Perera for Petitioner.
Saleem Marsoof P.C., Additional Solicitor General with Nerin Pulle S. C for 1st and 4th Respondents.
R.K.W. Gunasekera for 2nd Respondent.
Cur. adv. vult.
May 5, 2000.

DE SILVA, J.
By this application the petitioner, a Senior Deputy Inspector General seeks a mandate in the nature of a writ of
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prohibition to prohibit the transfer by the first respondent Inspector General of Police by order dated07.11.1999from
Senior Deputy Inspector General in Charge of crime and Intelligence officer to be in charge ofCriminalRecordOfficeand
Technical Branches and also for a mandate in the nature of a writ ofcertiorariquashingthesaiddecision/determination
contained in the document marked (P. 8). The petitioner alleges that the saidtransferorthepurportedtransferisin
effect a demotion to him and the Inspector General has no power to demote him.
The petitioner is a very senior police officer. He joined as an ASP in 1966 and was confirmedin1969.Thereafterhewas
promoted to the rank of SP in 1975, SSP in 1980 and DIG in 1987. In 1995 hewaspromotedtotherankofSeniorDeputy
Inspector General with effect from 02. 08. 1994.

As Deputy Inspector General the petitioner had been in charge of the Southern Range, Northern Range, UwaRange,PoliceHQ,
and Logistics Range, As Senior Deputy Inspector General he was in charge of the Colombo Range, the SL PoliceReserve,Civil
Defence Force, Eastern Range, and since 14. 09. 1998 Crimes, Criminal Intelligence and Organized Crime.
The petitioner's promotion to the rank of senior Deputy Inspector General wasmadeintermsofP1,aletterfromthe
Secretary Public Service Commission dated 11. 09. 1995. The letter reads asfollows........ispromotedtotherankof
Senior Deputy Inspector General with effect from 2nd August 1994......".
The petitioner states inter alia that the Criminal Record Division to which he has been transferred comes under S/DIGCrimes
and Intelligence, which post he was holding at the time of thetransfer.ThepetitionerhasannexedtheOrganizational
Structure of the Police Department as evidence there of marked P2.
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The petitioner had also annexed an extract from the Public Administration circular No. 2/97 which indicates the hierarchyof
the Police Department and according to the said circular the highest rank is the IGP, next comes the S/DIG and thentheDIG
and so on. The said document also indicates the salary scales applicable to the relevant respective ranks and shows thatthe
scale of the S/DIG is higher than that of the DIG.
In terms of document P5, it appears that as at 03. 07. 1989 there had been three S/DIG's and nineteen DIG'sandasat01.
07. 1992 there had been three S/DIG's and twenty DIG's.
The petitioner also relies on the Police Telephone Directory, issued by the 1st respondent which again lists the officersin
terms of the aforesaid hierarchy. The petitioner submits that all these documents bear testimony to the fact thattheS/DIG
ranks above the post of DIG.
On 08. 11. 1999 the petitioner received P8, dated 07. 11. 99, from the 1st respondent IGP which was adirectivetemporarily
transferring the petitioner from S/DIG Crimes and Criminal Intelligence to be in charge of theCriminalRecordOfficeand
Technical Branches and would be based at the CRD building. Thedirectivefurthercontainedthat-thepetitionershould
occupy the room formerly used by S/DIG Dharmadasa Silva who was compiling a book on the Police Department.
In terms of P9, Public Service Commission Circular No. 4 of 17. 02. 93, the transfers and disciplinary control ofallstaff
grade officers came under the control of the Public Service Commission. In terms of P 10, the Public ServiceCommission,on
14. 12. 1992 delegated the power with regard to transfers of ". . . all Police officers of and below the rankofDIG...
."To the IGP ". . . in view of the exigencies specific to the Police Department". Accordingly,thepetitionerclaimsthat
the power of transfer of S/DIG's has not been delegated by the Public Service Commissiontothe1strespondentIGP.The
Petitioner
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states that the IGP has acted ultra vires his powers in transferring the petitioner who is a S/DIG and that theIGPhasno
power or jurisdiction to transfer him. The petitioner states that in terms of P 10, the IGP cantransferonlyofficersof
and below the rank of DIG and that accordingly the petitioner being a S/DIG does notcomewithintheambitofP10.The
Petitioner states that he verily believes that the Public Service Commission has not delegateditspowersoftransferof
S/DIG's to IGP or any other person.

The petitioner also states that the Criminal Record Division came under him as S/DIG CrimesandCriminalIntelligenceand
that it was headed by a SSP and as such the transfer tantamouts to a demotion for the petitioner, and that intermsofthe
office to which he is transferred his functions are of a trivial nature and are not commensurate with the duties of aS/DIG.
He also alleges mala fides on the part of the 1St respondent in effecting the said transfer. The petitioner statesthatthe
actual reason for the transfer was that he took part in a television discussion and made certain remarks. Thispositionthe
Inspector General has denied.
Consequent to this application by the petitioner, a stay order was issued bythisCourtstayingthetransferuntilthe
determination of this application.
In reply to the petitioner, resisting the issue of a stay order, the 1st respondent claimsthattherankofS/DIGfalls
within the rank of DIG the reason being that S/DIG's are in fact DIG's.
With his affidavit Inspector General produced a document marked 1R1, a circularfromthePublicServiceCommission,No.
a/7/1, dated 14th December 1992, wherein the power of transfer of DIG's has been delegated to the IGP. Therelevantportion
reads:
"2. Transfers - The powers of transfers of all police officers of and below the rank of DIG are delegated to the IGP in view
of the exigencies specific to the Police Department."
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This is the full text relevant to P 10. The affidavit of Inspector General states that he is advised that DIGreferstoS/
DIG as well. He has also annexed marked 1R2 a query to the Public Service Commission seeking an affirmative clarificationto
1R1 that the rank DIG as used in 1R1 includes S/DIG's as well to which the PublicServiceCommissionhadwrittentothe
Defence Ministry that "DIG" as used in 1R1 includes S/DIG's as well and that transfers of S/DIG's are never referredtothe
Public Service Commission. This letter of clarification has been annexed as 1R3.
In his objections proper, Inspector General has admitted that from the rank of DIG the Petitioner was promotedtotherank
of S/DIG on 11. 09. 1995 with effect from 02. 08. 1994. (para 7) The posts held by the petitioner fromthetimehejoined
the Police department as per the 1st respondent appear substantially the same as claimed by thepetitionerthoughthe1st
respondent sets out certain disciplinary actions that had been taken against the petitioner.
The question to be dealt with by this count is whether the IGP is empowered to transfer a Senior Deputy Inspector General.

In his objections proper, the 1St respondent reiterates his position that the rank of DIG includes thatofS/DIG.The1st
respondent states that in terms of the Police Ordinance the reference "IGP" shall be deemedtoincludeDIGandthatthe
Police Ordinance provided only for DIG's, SP's and ASP's etc. With the increase in cadre the rankofDIGwassubdivided
into S/DIG and DIG with two different salary structures "but necessarily and descriptively the post of S/DIG is thesameas
any person who is categorized as and falls into the rank of DIG".
The 1st respondent has annexed marked 1R11 a list of S/DIG'S including the petitioner who has, in the past, beentransferred
by the IGP whilst being S/DIG's and states that the Public Service Commission has never exercisedanypowerregardingthe
transfer of a S/DIG.
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The 1st respondent has admitted documents P3, P4, P5, P6, and P8 respectively and states thattheCriminalRecordsOffice
had to be updated due to the increase in the volume of crime and to be on par with modern technology and that as such itwas
decided to appoint a senior officer to be in charge.

In reply to the objections the petitioner filed a counter affidavit and produced a number of freshdocumentswhichareof
relevance in determining this application. The petitioner produced as P 16, a letter from the 1st respondentdated19.12.
1999 whereby DIG T. N. de Silva had been posthumously promoted to the rank of S/ DIG along with others who haddiedinthe
course of duty at the Town Hall bomb blast during the last Presidential Election. The letter reads:
"The following deceased officers are posthumously promoted to the under mentioned rank with immediate effect:
01. Late DIG Mr. T. N. de Silva as Senior Deputy Inspector General of Police.
02. ........"
P20 is a letter to Secretary/ Defence addressed by the then IGP dated 29. 06. 94 settingoutthepermanentcadreinthe
Police Staff The relevant portion reads as follows:
"Secretary/Defence.
PERMANENT CADRE IN THE POLICE DEPARTMENT
I refer to your letter dated 9th June 1994 on the above subject. The required particulars are given below:
01. Approved Cadre of the Regular Police (with STF)
Snr/DIGG03
DIGG33
Supernumary DIGG12
Sgd/TPF de Silva/IGP
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P21: Document showing strength of the Police Department as at 30. 11. 94 by Director Personnel to IGP. It also setsoutthe
cadre as 05 S/DIG'S, 29 DIG's and 12 Super. DIGSs and so on. P22, the Administrative Report of the Police for the Year1991,
P23 for 1992, and P24 for 1993 certified by the respective IGP's and in all these reports the ranksofS/DIGandDIGare
distinctly listed the latter following the former in hierarchy. P25 is the circular regarding Badges ofRank.Intermsof
P25:
S/DIG: State Emblem, Star and floral wreath with cross battens, Gorget patches of black velvetwith"Palapethi"designin
Silver on either side and a Thick Silver line at the center with Chromium plated small button..
DIG: State Emblem with floral wreath cross battens, Gorget patches of black velvetwith"Palapethi"designinSilveron
either side and a thick silver line at the center with Chromium plated small button.

It would appear that the badge of the S/DIG is different from that of the DIG in that the badge of the DIG is minus theStar
as is in the S/DIG badge.
In terms of document P5(a), a report prepared by Mr. Earnest Perera former Inspector General of Police it appears that asat
03. 07. 1989 there had been three S/DIG's and nineteen DIGSs. The three Senior DIG's referred to in that reportareMr.T.
P. F. de Silva appointed as Senior DIG on 15. 02. 1987, Mr. M. E. P. Perera appointed on 21. 07. 1987 and Mr. R. B.Rajaguru
appointed on 01. 08. 1988. This shows two things, firstly (1) that the post of S/DIG had been in existence even in1987and
secondly (2) the most Senior Police Officers are appointed to these posts. WhenMr.EarnestPererawrotetothePublic
Service Commission on 10. 12. 1992 the three most Senior Officers who were holding the post of S/DIG'S were Mr. T. P.F.de
Silva, Mr. M. Ariyasingha and Mr. M. Selvaratnam (P5(b)). Subsequently P. B. Ekanayaka had beenpromotedwitheffectfrom
01. 08. 1992.
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As stated earlier the main question arising out of this application is whethertheIGPhasthepowerandauthorityto
transfer a S/DIG. The petitioner's position is that the Public Service Commission delegated the power oftransferringDIG's
to the IGP and that the rank of S/DIG does not fall within the rank of DIG but ishigherthantherankofDIG.The11
respondent takes a directly opposed stand and takes the position that the Public Service Commission delegateditspowerof
transfer of DIG's to the IGP and that the S/DIG comes within the general rank of DIG and accordingly the IGPhasthepower
of transferring a S/DIG.

It would appear that up to December 1992 the Public Service Commission had exercised the powers of transfer ofallgazetted
officers namely S/DIG's, DIG's, SSP's, SP's and ASP'S and probationary ASP's. In sequence of events,asperthedocuments
marked in this application, in 1992 the then IGP Mr. E. E. B. Perera wrote to the Public Service Commissionrequestingthat
the delegation of power of transfer of all officers of and below the rank of DIG to begiventohim.ThePublicService
Commission obliged by delegating the power of transfer of all Police officers of and below the rank of DIG to theIGP.This
was in 1992. Apparently after 1992 the IGP had exercised the power of transfer of S/DIG's consequenttothedelegationon
the assumption that he had powers to do so and in that exercise had also transferred S/DIG's as wellasthepetitioneron
some occasions. It is to be observed that R11, document tendered by the Inspector Generalreferstotransfersdoneafter
1995. No documentary evidence was placed before this Court to establish the fact that thepersonwhosoughtandgotthe
authority viz Mr. Earnest Perera or his successor Mr. Frank De Silva had effected any transferofS/DIG'sfrom1992-1995.
The petitioner's acquiescence in these transfers cannot be construed as a bar to his complaining of lack of authority ofthe
IGP in a subsequent transfer by the IGP. The petitioner complains here because he alleges that he had beenstrippedofhis
authority and placed in charge of a unit that was earlier manned by a SSP.
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Considering the documents placed before the Court by the petitioner, namely P1 , whereby the petitioner hasbeen"promoted"
to the rank of S /DIG from DIG, the Organizational Structure of the Police Department wherein theranksofS/DIGandDIG
have been distinctly listed, the Public Administration Circular which sets out the hierarchy to the PoliceDepartmentwhich
also lists the S/DIG above the DIG in separate ranks, the different salary scales applicable in terms of that -circular,the
Reports of several Inspectors General of Police where S/DIG's have been named above the DIG's andtheTelephoneDirectory,
for whatever it is worth as evidence which again differentiates between S/DIG's and DIG's, it would appear that therankof
S/ DIG is senior to and distinct from that of DIG.

This is more emphasized by the documents filed by the petitioner in his counter affidavit where P 19 has"promoted"DIGT.
N. de Silva posthumously to S/ DIG, P20 where the IGP had forwarded a report of Permanent CadrestotheSecretaryDefence
and listed S/DIG above and over DIG's, P21 by Director Personnel again listing S/DIG'sseparately,andtheAdministrative
Reports for 1991, 1992,1993 marked P22, 23, and 24 certified by the respectiveIGP'sagainsettingouttheS/DIGcadre
separate and over the DIG cadre and finally the differences in the badges of the tworanks-S/DIGandDIG,allgoto
establish that the rank of S/DIG is quite different and distinct from that of DIG.
The clarification by the Public Service Commission produced by the respondent marked (1 R3) does not withstand muchscrutiny
in the face of all the above mentioned factors and I am of the view that a document issued on second thought cannot havethe
effect of validating an invalid act by the IGP - namely the transfer of the petitioner. Furthermore,theletterrequesting
the delegation of power of transfer by IGP E. E. B. Perera, marked x, did not refer to S/DIG which rankevenatthattime
was in existence. Accordingly, it would appear in the face of the documents that IGP E. E. B. Perera himself has
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chosen to omit the S/DIG's who are second only to the IGP, in his request for a delegation of power. It is notpossiblenow
for the Public Service Commission to include in its delegation a category not mentioned in the request itself. Nordoesthe
document advice us of the nature of the discussion referred to therein.
The position taken up by the 1st respondent that the rank of DIG includes S/DIG is untenable and cannot be sustainedbecause
it appears from the documents tendered to Court that the ranks have been distinct and separate, theS/DIGbeingseniorto
the DIG and being in a separate cadre. I hold that the Inspector General hadactedinexcessofhisauthoritywhenhe
transferred a Senior Deputy Inspector General.

Question was also raised with regard to the jurisdiction of this Courttohearanddeterminethisapplication.Learned
Counsels for the 1st and 2nd respondents contended that the language of Article 55(5) oftheConstitutionissufficiently
wide to oust jurisdiction of Court to inquire into, pronounce upon or call in question any order ofanypublicofficerin
regard to any matter concerning the appointment, transfer, dismissal or disciplinary control of a public officer.Additional
Solicitor General Mr. Marsoof relied on several judgmentsstartingfromAbeyawickramavsPathirana(1)toAthapattuvs
Peoples Bank(2) He also submitted that Article 55(5) of the Constitution had to be understood in the light of Section22of
the Interpretation Ordinance where it states "order, decision, determination, direction or findingmadeorissuedinthe
exercise or the apparent exercise of the power conferred on such person, authority or tribunal". Itwasthesubmissionof
Counsel that even if the 1st respondent did not have actual authority he did have apparent authority tomaketheorderor
decision marked P8 and therefore the jurisdiction of this Court is ousted. Mr. Gunasekara did not support theargumentthat
Section 22 of the Interpretation Ordinance is applicable. However he contended thatthepresentsituationiscoveredby
Article 55 (5).
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There are several decisions of the Supreme Court where it has been held that the ouster clause would be of no effectifthe
order is made by an officer who does not have legal authority to do so. In such case the decision is null andvoidandthe
preclusive clause in the Constitution is no bar to review. In Chandrasena vs Attorney-General(3) the Supreme Court heldthat
ouster clause in Article 55(5) would not protect an administrative act which was ultra vires. InGunaratnavsChandrananda
de Silva (4). where a public officer was sent on compulsory leave by the Secretary Defence, where it ought tohavebeenby
Public Service Commission the Court held that the act was ultra vires and the ouster clause did not apply.

In the instant case I have held for the reasons set out above that the Inspector General has no power or authorityinterms
of letter dated 14. 12. 1992 to transfer a S/DIG and the decision is ultra wires. In these circumstancesIholdthatthis
Court has jurisdiction to hear and determine the question in issue.
At the hearing of this case the learned Senior Counsel for the petitioner did not labour the issue of mala fides.Allegation
of mala fides demand proof of a higher degree. In Gunasinghe vs Dissanayaka(5) it was held that one who allegesmalesfides
should establish it to the satisfaction of Court. The petitioner in this case apart from the mere allegationofmalafides
has not established the same to the satisfaction of this Court. I hold that the Inspector General'sactionintransferring
the petitioner has been done without malice..
For the reasons stated above I allow the application of the petitioner and quash the decisiononP8whichreferstothe
transfer of the petitioner. I make no order with regard to costs.

Application allowed.

Ed. Note
The Supreme Covet on - 21. 11. 2000 in SC SPLLA 108/2000 refused special leave to the Supreme Court.


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