Legal Services and Laws of Sri Lanka
SLR - 2003 Vol.3, Page No - 207
EXCISE AND OTHERS
COURT OF APPEAL
TILAKAWARDENA, J. (P/CA)
SEPTEMBER 11, 2003
Writ of Certiorari - Decision of Public Sen/ice Commission -Applicability of the 17th Amendment -Constitution.Article55
and 61A (17th Amendment) - is there a difference? - Proper Court?
The petitioner sought (1) to quash the decision taken by the Public Service Commission to cancel the examination (2)awrit
of mandamus to release and declare the results of the examination already held.
(i) Art 55 (5) restricted the application to orders or decrees concerning appointment, transfer,dismissalordisciplinary
control of a public officer. Whereas Article 61A (17th amendment) dealt with any type of decisionsolongasitismade
pursuant to a power conferred.
(ii) The only ground upon which the writ jurisdiction could be sought under circumstances where a challengewasbeingmade
regarding the promotion and/or appointment, transfer etc., was where the person who made the impugned decision, did nothave
any legal authority to make such a decision.
No claim has been made that the person who make the promotion had no legal authority to make such decision.
(iii) 'Ouster clause' precluded the jurisdiction of the Court of Appeal and grantsexclusivejurisdictiontotheSupreme
Court. A person aggrieved by the decision would have to invoke the jurisdiction of the Supreme Court under Article 126.
APPLICATION for a writ of certiorari.
Cases referred to:
1. Abeywickrema v Pathirana 1986 1 SRI LR 120
2. Gunarathne v Chandrananda de Silva - 1998 3 SRI LR 265
3. Kotakadeniya v Kodithuwakku - 2000 2 SRI LR 175
4. Atapattuv People's Bank- 1997 1 SRI LR 208
5. Bandaranayake v Weeraratne - 1981 1 SRI LR 10 at 16
L.. Hettiarachchi for the petitioner.
M. R Ameen, State Counsel for the respondents.
October 23, 2003
SHIRANEE TILAKAWARDANE, J., (P/CA)
The petitioner has preferred this application seeking a writ of certiorari to quash the decision and/ororderofthe5th-
13th respondents to cancel the examination held on the 30th of November 2001 for the selections of candidatesforpromotion
to the rank of Excise Inspector. He has also sought a writ of mandamus to direct the5th-13threspondentstoreleaseand
declare the results of the candidates of the examination held on the 30th of November 2001 for the selectionsofcandidates
for promotion to the rank of Excise Inspector.
It was the contention of the petitioner that he had been informed by the 1st respondent by a circular dated 31stofJanuary
2003, which letter was received by the petitioner on the 7th of February 2003, that theexaminationsheldonthe30mof
November 2001 for appointments of the post of Excise Inspector had been cancelled by theSecretaryofthePublicService
Commission by letter dated 18th of January 2002. The application was based on the fact this cancellationwasarbitraryand
capricious and therefore illegal as no proper inquiry had been had prior to the making of such order.
The State Counsel appearing on behalf of the Attorney-General andtheotherrespondentsraisedapreliminaryobjection
pertaining to jurisdiction, stating that this Court did not have jurisdictiontoentertainthisapplicationinviewof
Article 61 A, which has been introduced by the 17th Amendment of the Constitution of the
Democratic Socialist Republic of Sri Lanka. An analysis of Article 61 A shows that itwasintroducedbyanamendmentto
Article 55 (5) of the Constitution which had been applicable to decisions made by the PublicServiceCommissionuntilthe
introduction of this amendment by the 17th Amendment to the Constitution. An analysis of these two provisionswhichareas
Article 55 (5):-
Subject to the jurisdiction conferred on the Supreme Court under paragraph (1) of Article 126nocourtortribunalshall
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 concerning theappointment,transfer,dismissalordisciplinarycontrolofapublic
Article 61A of the 17th Amendment to the Constitution:-
Subject to the provisions of paragraph (1), (2), (3), (4) and (5) of Article 126, no court or tribunal shallhavepoweror
jurisdiction to inquire into, or pronounce upon or in any mannercallinquestionanyorderordecisionmadebythe
Commission, a Committee, or any public officer, in pursuance of any power or duty conferred or imposedonsuchCommission,
or delegated to a Committee or public officer, under this Chapter or under any other law.
show that the Article 61 A clearly enlarged this scope and ambit of Article 55 (5).
Admittedly, both these articles were applicable to a decision made by the "Public Service Commission"oraPublicOfficer
who exercises delegated authority either from the Cabinet of Ministers or from the Public Service Commission, or aCommittee
of such Commission. However, Article 55 (5) restricted theapplicationtoordersordecisionsconcerning"appointment,
transfer, dismissal or disciplinary control of a public officer". Article 61 A ontheotherhandconcernedanytypeof
decision so long as it was made pursuant to a power conferred or imposed on such body. It is of significance however tonote
that whether it was Article 61 A or Article 55 (5)
nevertheless these Articles would have precluded the jurisdiction of this Court as thedecisionthathasbeenchallenged
before this Court relates to the promotion being made by the Public Service Commission. Thereforewhethertoconsiderthe
application of Article 55 (5) or Article 61A nevertheless the decisions by the Public Service Commission have beenprecluded
and the jurisdiction was vested even prior to the amendment of the Constitution in the Supreme Court whichhasjurisdiction
to inquire into the validity of the decision of the Public Service Commission in terms of article 126oftheConstitution,
that is in the exercise of the fundamental rights jurisdiction.
This aforesaid Article 55 (5) and 61A of the said amendment precluded the correctness of a decision beinginvestigatedinto
upon except by the Supreme Court of Sri Lanka, which had sole jurisdiction to inquire into this matter.Noclaimhasbeen
made in this case by the petitioner to the fact that the person who made the promotion had no legal authoritytomakesuch
decision. In other words, the only grounds upon which the writ jurisdiction couldbesoughtundercircumstanceswherea
challenge was being made regarding the promotion (and/or appointment, transfer etc.)waswherethepersonwhomadethe
impugn decision did not have any legalauthoritytomakesuchdecision.(AbeywickremavPathirana(1)-Gunaratnev
Chandrananda de Silva (2) Kotakadeniya v Kodituwakku (3) In considering the writ jurisdiction of this Court, it isimportant
to observe that Article 140 of the Constitution stipulates thattheCourtofAppealmayissuewrits"subjecttothe
provisions of the Constitution". Therefore the ousterclausescontainedinordinarylegislationwouldnoteffectively
restrict or preclude the jurisdiction granted by Article 140 of the Constitution. Nevertheless the restrictioncontainedin
Article 55 (5) and the Amended Article 61 A as these are ouster clauses stipulated in the Constitution itself, the powersof
this Court would be restricted by these provisions contained in the Constitution. It was heldinthecaseofAtapattuv
People's Ban (4) Bandaranayake v Weeraratne (5) that the ouster clauses contained in the Constitution would barjurisdiction
that has been granted within the Constitution and would therefore such ouster clause adverted to above would be a bar tothe
entertaining of writ applications to invoke the writ jurisdiction by this Court.
Accordingly, this Court holds thattheousterclausecontainedinArticle61AoftheConstitutionprecludesthe
jurisdiction of this Court and grants exclusive jurisdiction to the Supreme Court to hearanddetermineallsuchmatters
envisaged within the scope and ambit of such Article. In these circumstances, the personaggrievedbythedecisionwould
have to invoke the jurisdiction of the Supreme Court to inquire into the matter in terms of Article 126 oftheConstitution
as a violation of a fundamental right. Accordingly, we accept the preliminary objections raised by therespondentsinthis
case and the application of the petitioner is dismissed in limine. No costs.