IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for writs in the nature of Writ of Certiorari and Mandamus under and in terms of Article 140 of the Constitution of the Democratic Socialist Republic of Sri Lanka.

Mohamed Ismail Wahabdeen, 39A/1, O.P.P. Road, Kalmunai - 12 Petitioner CA /Writ /468 /2021 Vs.

1. His Lordship Jayantha Jayasuriya, Hon Chief Justice and Chairman, Judicial Services Commission, Colombo 12.

2. His Lordship Buwaneka Aluvihare, Member, Judicial Services Commission, Colombo 12.

3. His Lordship Sisira de Abrew (Retired), Ex-Member, Judicial Service Commission, Colombo 12.

4. His Lordship L.T.B. Dehideniya, Member, Judicial Services Commission, Colombo 12.

5. The Secretary, Judicial Service Commission, Colombo 12.

6. Hon. Gihan Kulatunge, (Inquiry Officer), High Court Judge, Colombo.

Respondents Before: B. Sasi Mahendran, J.

M.C.B.S. Morais, J.

Counsels: Faisz Musthapha, PC with N.M. Shaheid, Keerthi Thillekeratne, Bishran Iqbal and Zaid Ali for the Petitioner Nerin Pulle, A.S.G. with Tashya Gajanayake, S.C. for the 5th Respondent Argued On: 21.03.2025 Written 04.04.2025 (by the Petitioner)

Submissions: 03.04.2025 (by the 5th Respondent)

On Order On: 28.05.2025 ORDER B. Sasi Mahendran, J.

This order pertains to the preliminary objection raised by the 5th Respondent on the maintainability of this application.

The Petitioner filed this application by petition dated 11.10.2021, seeking inter alia a writ of certiorari to quash the decision of the Judicial Service Commission marked as P17 and a writ of mandamus compelling the Judicial Service Commission to reinstate the Petitioner as a Judicial Officer.

The facts of this case are as follows:

The Judicial Service Commission has received a complaint dated 23.11.2017 by the Conservator General of Forests, referring to an alleged judicial misconduct by the Petitioner with regard to several interim orders issued by the Petitioner, who was serving as the Magistrate of the Magistrates’ Court of Pottuvil in respect of 17 persons accused of having violated Section 6 of the Forest Ordinance as amended by Act No. 65 of 2009. Subsequent to the said complaint, the Commission conducted a disciplinary inquiry, at the end of which the Petitioner was found guilty of 18 charges of misconduct. Thereafter, by letter dated 27.07.2020 marked P17, such decision was communicated by the 5th Respondent to the Petitioner, informing that the Petitioner is dismissed from judicial service as a punishment for the said misconduct.

The Petitioner has preferred the present application against the said decision.

By order dated 08.08.2022, His Lordship Justice Sobitha Rajakaruna, along with His Lordship Justice Ganepola, issued notice only to the 5th Respondent.

For easy reference, an excerpt of the said order is reproduced below:

“In these circumstances, I am inclined to issue formal notice of this case only to the 5th Respondent. I have come to the said conclusion exercising my discretion after a careful consideration of the whole matter and by reason of the special circumstances of this case. This Court is of the view that apart from the Petitioner, hearing the Attorney General who represents the Secretary to the JSC is sufficient and efficacious in arriving at a final conclusion upon the questions identified in this case for the best interest of justice.”

On 21.03.2025, when the matter came up for argument before us, the Counsel for the 5th Respondent raised a preliminary objection with regard to the maintainability of this application on the basis that it would be futile.

The Court directed both parties to tender their written submissions on this matter. Even though the Petitioner has a right of appeal against the said order in terms of Article 128 (1) or 128 (2) of the Constitution, there is no indication whether the Petitioner has exercised that right.

The impact of refusing to issue notice on the Respondents was considered by His Lordship Arjuna Obeysekere