WEERASEKARA

Vs.

DIRECTOR GENERAL OF PENSIONS AND OTHERS

COURT OF APPEAL
RAJAKARUNA, J.
GANEPOLA, J.
CA/WRIT/351/2019

Writ of mandamus-Minutes of Pensions-Pension entitlement-Failure to perform statutory duty-Applicability of Establishment Code and Public Administration Circular No. 07/2018

The pension entitlement of the petitioner was approved by the 7th respondent, the Secretary to the Ministry of Public Administration, in terms of section 48C(1) of the Minutes on Pensions. However, the 1st respondent, the Director General of Pensions, and other respondents attached to the health services, repeatedly postponed giving effect to this decision on the basis that the petitioner's personal file could not be traced.

Held:

It is the statutory duty of the said respondents to ensure that the petitioner is granted his pension without delay. A writ of mandamus lies against the respondents compelling them to perform their statutory duty forthwith.

Cases referred to:

1. Jayarathne v. Wickremaratne and others [2003] 2 Sri LR 276
2. Pathirana v. Victor Perera (DIG Personal Training Police) [2006] 2 Sri LR 281
3. Karavita and Welikanna v. Inspector General of Police [2002] 2 Sri LR 287
4. Wijeyesekera and Co Ltd v. Principal Collector of Customs (1951) 53 NLR 329 at 333

APPLICATION for Writ of Mandamus.

Avindra Rodrigo, P.C., with Ashiq Hassim for the Petitioner.

Dr. Charuka Ekanayake, S.C., for the Respondents.

cur. adv. vult.

November 8, 2021

GANEPOLA, J.

The Petitioner is a qualified Consultant Obstetrician and Gynecologist who was attached to the Ministry of Health, Nutrition and Indigenous Medicine and served in various places around the island in several capacities from 16.01.1985 to 15.10.1995. While being attached to the Ministry, the Petitioner was appointed as a Specialist (V.O.G) to the General Hospital, Anuradhapura with effect from 10.12.1991 and served there until he was permanently released to the University of Sri Jayewardenepura on 15.10.1995. The Petitioner has served at the said University until his resignation from his service on 30.10.2004.

After reaching the age of 55 years on 16.03.2015, the Petitioner has made a written request dated 30.03.2015 (P13) to the 2nd Respondent requesting that he be granted his pension entitlement for the period of his public service from 16.01.1985 to 15.10.1995. In response to the said letter P13 the Acting Deputy Director General (Health Services) by his letter dated 20.08.2018 (P14) with a copy to the Petitioner has instructed the 3rd Respondent to take all necessary steps to proceed with the Petitioner's request upon the 7th Respondent's determination based on section 48C(1) of the Minutes of Pension which declares that the Petitioner is entitled to a pension. Subsequently, the 3rd Respondent by his letter dated 01.11.2018 (P15) addressed to the Provincial Director of Health Services Anuradhapura has requested the personal file and the salary particulars of the Petitioner to take steps to grant his pension since such documentation were not available at the Teaching Hospital, Anuradhapura. The 3rd Respondent in his letter P15 has indicated that the personal file of the Petitioner should be available at the said Provincial Director's office during the relevant period. In response to said letter P14, the 3rd Respondent by his letter dated 10.11.2018 (P16) has forwarded the salary particulars of the Petitioner to the Deputy Director General of Health, but has informed the Deputy Director General of Health that the Petitioner's personal file is not available at the Anuradhapura Teaching Hospital. The 3rd Respondent by his letter P16 has further informed that the Petitioner had not obtained any no-pay leave or paid leave during the concerned period. Since the personal file of the Petitioner was not to be found, the 3rd Respondent by his letter dated 19.11.2018 (P17), with copies to the Petitioner and the 4th Respo