IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an Application for the grant of Writs of Certiorari and Mandamus under and in terms of Article 140 of the Constitution.
Basnayaka Mudiyanselage Madduma Bandara No. 243, Isuru Mawatha, Hiripitiya, Pannipitiya.
PETITIONER CA-WRIT - 161/2020 Vs.
1. Justice N.E. Dissanayake Chairman
1A. Justice Anil Gooneratne, Chairman
2. Mr. A. Gnanathasan, PC Member
3. Mr. G.P. Abeykeerthi Member
1st to 3rd Respondent all of:
Administrative Appeals Tribunal, Silva Lane, Sri Jayawardenepura Kotte.
44. K.W.E. Karalliyadda Chairman
4A. S.C.S.Fernando, Chairman
5. Savithri Wijesekara Member
5A. S.Liyanagama, Member
6. Y.L.M. Zawahir Member
6A. A.S.P.S.P. Sanjeewa, Member
7. Tilak Collure Member
7A. N.S.M. Samsudeen, Member
8. Ashoka Wijethilake Member
8A. M.P.P. Perera, Member
9. Gamini Nawarathne Member.
9A. G. Wickramage, Member
10. G. Jeyakumar Member
10A. T.P. Paramaswaran, Member
11. Nishantha Weerasinghe Secretary
11A. Samanthi Mihindukula, Secretary.
11B. Thanuj Fernando, Secretary
4th to 11th Respondents all of: National Police Commission Block 9, BMICH Premises Colombo 09.
12. Chandana D. Wickramartne Inspector-General of Police (Acting)
Police Headquarters Colombo 01
13. Waruna Jayasundara Deputy Inspector- General of Police Commandant- Special Task Force of Police Police Headquarters Colombo 01
14. A.J.D.Dias Director General of Pensions Maligawatta Colombo 10 RESPONDENTS
15. Hon. Justice Jagath Balapatabendi Chairman
16. Indrani Sughthdasa Member
17. V. Sivagnanasothy Member
18. Dr. T.R.C. Ruberu Member
19. Ahamod Lebbe Mohamed Saleem Member
20. Leelasena Liyanagama Member
21. Dian Gomes Member
22. W.H. Piyadasa Member
23. Dilith Jayaweera Member
15th to 23rd Respondents all of;
Public Service Commission No. 120/9 Rajamalwatta Road, Battaramulla.
ADDED RESPONDENTS Before: D.N. Samarakoon, J.
B. Sasi Mahendran, J.
Counsel: Senany Dayaratne with Nisala Seniya Fernando for the Petitioner Yuresha Fernando DSG for the Respondents.
Written 05.12.2022 (by the Petitioner)
Submissions: 06.12.2022 (by the Respondents)
On Argued On : 05.10.2022 Decided On : 15.12.2022.
B. Sasi Mahendran, J.
The instant application seeks to impugn an order of the Administrative Appeals Tribunal (dated 20th January 2020) which dismissed the Petitioner’s appeal from the National Police Commission, disabling him from being appointed to the rank of Deputy Inspector General of Police and, thereafter, Senior Deputy Inspector General of Police. The Petitioner seeks a Writ of Certiorari to quash the said order of the Administrative Appeals Tribunal; a Writ of Mandamus to compel the Administrative Appeals Tribunal (or in the alternative to compel the National Police Commission) to promote him to the post of Deputy Inspector General of Police with effect from 1st December 2012, and thereafter to promote him to the post of Senior Deputy Inspector General of Police with effect from 1st December 2015.
Prior to determining the merits of this application, in the light of the objection that has been raised by the Respondents, it is pertinent to deal with the jurisdictional intricacies that this application entails. The objection is that the orders of the Administrative Appeals Tribunal are not subject to this Court’s Writ jurisdiction. This is because of the Constitutional ouster clause found in Article 155C of the Constitution, originally introduced by the Seventeenth Amendment to the Constitution, which shuts out this Court’s supervisory jurisdiction to inquire into decisions of the National Police Commission, similar to the ouster clause found in Article 61A in relation to the Public Service Commission. It is argued that subjecting the Administrative Appeals Tribunal’s decisions to judicial review enables a disgruntled applicant an opportunity to do indirectly what cannot be done directly by calling into question the decisions of the National Police Commission which are insulated from this Court’s extraordinary Writ jurisdiction. This Article, as it stood prior to its amendment by the Twentieth Amendment to the Constitution, i.e., the provision as it stood at the time relevant to this application, reads:
Subject to the jurisdiction conferred on the Supreme Court [under Article 126 and the powers granted to the Administrative Appeals Tribunal under Article 155L], no court or tribunal shall have the power or jurisdiction to inquire into, or pronounce upon or in any manner call in question any order or decision made by the Commission or a Committee, in pursuance of any power or duty, conferred or imposed on such Commission or Committee under this Chapter or under any other law.
Article 155L makes provision for a police officer aggrieved by any order made by the Commission to appeal to the Administrative Appeals Tribunal established under Article 59. The Administrative Appeals Tribunal has the power to alter, vary, rescind or confirm any order or decision made by the Commission.
Thus, any public officer aggrieved by a decision of the National Police Commission or a committee or public officer to whom the powers of the National Police Commission have been delegated could challenge such decision, either by way of a fundamental rights application in terms of Article 126 of the Constitution or by preferring an appeal to the Administrative Appeals Tribunal in terms of Article 155L.
The Respondent’s argument is not new and has been rejected. For the purpose of convenience, we will cite the relevant excerpts from the judgment of the Supreme Court in A.M. Ratnayake v. Administrative Appeals Tribunal [2013] 1 SLR 331. Although this judgment dealt with Article 61A of the Constitution which insulates the decisions of the Public Service Commission from this Court’s Writ jurisdiction, the privative clause is similar to Article 155C. His Lordship Saleem Marsoof PC. J. (with their Lordships Ratnayake J. and Imam J. agreeing) observed:
“On the face of it, the above provision of the Constitution [Article 61A, prior to the Nineteenth Amendment], which constitutes a Constitutional ouster of jurisdiction, does not apply to the impugned decision of AAT,
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