BANDARA

Vs.

CHAIRMAN, ADMINISTRATIVE APPEALS TRIBUNAL AND OTHERS

COURT OF APPEAL
OBEYESEKERE, J.
CA/WRIT/227/2012
JUNE 10, 2020

Writ of certiorari-Administrative Appeals Tribunal Act, No. 4 of 2002, sections 2(1), 3, 7, 8(1)- Order made without quorum-Nullity

The petitioner filed this application seeking inter alia a writ of certiorari to quash an order of the Administrative Appeals Tribunal (AAT) on the ground that the AAT had not been properly constituted at the time the order was delivered and the order is therefore a nullity: although the appeal of the petitioner to the AAT had been heard by three members, only two members had signed the order and the third member had retired from the AAT prior to delivery of the order.

Held:

1. In the absence of any provision relating to quorum in the Administrative Appeals Tribunal Act, the power to hear and determine an appeal is vested with all three members and such power shall be exercised by all three members sitting together.

2. The Administrative Appeals Tribunal was not properly constituted at the time the order was delivered and for that reason the order is not a decision of the Tribunal and is therefore a nullity.

Cases referred to:

1. V.P.M.G.R. Shantha Kumara v. Chairman, Public Service Commission and others (CA/WRIT/350/2012, CA Minutes of 16.06.2015)
2. Paskaralingam by his Attorney-at-Law v. P.R.P. Perera and others [1998] 2 Sri LR 169
3. Wijayapala Mendis v. P.R.P. Perera and others [1999] 2 Sri LR 110
4. H.P.G. Hewage, Acquiring Officer v. A.E. Perera (CA/1/2001, CA Minutes of 30.08.2004)

5. R. v. Greater Manchester Valuation Panel, Ex p. Shell Chemicals U.K. Limited [1982] 1 QB 255

APPLICATION for Writs of Certiorari and Mandamus.

Shantha Jayawardena with Chamara Nanayakkarawasam and Hiranya Damunupola for the Petitioners.

Milinda Gunatilake, S.D.S.G., for the Respondents.

cur. adv. vult.

September 7, 2020.

OBEYESEKERE, J.

When this matter was taken up for argument on 12th July 2018, the learned Counsel for the parties moved that this Court deliver its judgment on the written submissions that would be tendered by the parties.

The Petitioner has filed this application, seeking inter alia a Writ of Certiorari to quash the Order of the Administrative Appeals Tribunal (the Tribunal/AAT) marked 'P21', and a Writ of Mandamus directing the Administrative Appeals Tribunal to direct the Public Service Commission to grant the Petitioner marks for seniority calculated from 1st July 1989, and thereafter promote the Petitioner to Class II Grade II of the Sri Lanka Administrative Service.

It is admitted between the parties that the Petitioner had joined the Public Service in July 1979 as a Clerical Officer. Having sat the limited competitive examination conducted in 1990 to select officers for appointment to the Supra Grade of the General Clerical Service, the Petitioner had been appointed with effect from 1st June 1992 to the General Clerical Service - Supra Grade of the Uva Province, and attached to the Agriculture Ministry of the Uva Provincial Council by letter marked 'P5'.

In 2005, the Ministry of Public Administration had issued Combined Services Circular No.3/2005, marked 'P9', calling for applications from persons who had the qualifications stipulated therein, for appointment to Class II Grade II of the Sri Lanka Administrative Service. The Petitioner, who possessed the qualifications stipulated therein, had sat the written examination that was held in terms of 'P9' and had secured 114 marks out of 200 at the said examination. The Petitioner had secured a further

47.50 marks for seniority, thus obtaining an aggregate of 161.50 marks, whereas the cut off mark for selection was 169. The Petitioner had disputed the marks given for seniority, and had claimed that he should have received additional marks on the basis that his appointment to Supra Grade of the General Clerical Service had been backdated to 1st July 1989, from