DELAPOLA

Vs.

CHAIRMAN, ADMINISTRATIVE APPEAL TRIBUNAL AND OTHERS

COURT OF APPEAL
NAWAZ, J.
CNWRIT/263/2013

Writs of certiorari-Mandamusfied Certiorari-Sri Lanka Teachers Education Service-Change of service minute-Ultra vires-Public Service Commission-Administrative Appeals Tribunal-Articles 61A and 140 of the Constitution-Administrative Appeals Tribunal Act, No.4 of 2002, section 8(2)-0uster clause

The petitioner applied for the post of Class Ill in the Sri Lanka Teachers Education Service in response to an advertisement published in the government gazette by the secretary to the Ministry of Education. The academic qualifications required for the absorption of persons to the Sri Lanka Teachers' Education Service were set forth in the service minute published in the gazette prior to the said advertisement under three different categories without any distinction between the three categories. In the said advertisement, the secretary to the Ministry of Education altered the qualification under the third category, under which the petitioner applied for the post, by adding a requirement of experience of three years in teaching and also giving priority to applicants who had applied under the first and second categories. All candidates including the petitioner were interviewed to fill the available 10 vacancies. The petitioner who obtained 37 marks was placed 12th in the order of merit, and 7 out of 10 candidates chosen to fill the vacancies secured less marks than her ranging from 34 to 14. The appeals to the Public Service Commission (PSC) and then to the Administrative Appeals Tribunal (AAT) were unsuccessful. The petitioner sought to quash the decisions of the PSC and AAT by way of writs of certiorari.

Held:

1. The service minute is a cabinet approved document in terms of Article 55(4) of the Constitution, which the secretary to the Ministry cannot modify on his own. Clause 8.4 of the advertisement which modified the service minute is ultra vires and void.

2. The constitutional ouster in Article 61A precludes the Court of Appeal from calling into question the validity of the decision of the PSC.

3. A decision of the AAT on a decision of the PSC can be impugned under Article 140 of the Constitution. The AAT is not a body exercising any power delegated to it by the PSC but is an appellate tribunal constituted in terms of Article 59(1) of the Constitution, having the power where appropriate to alter, vary or rescind any order or decision of the PSC.

4. Even though mandamus has not been prayed for, the court should be competent to issue 'Mandamusfied Certiorari', a writ of certiorari that also performs the job of mandamus whilst quashing a previous decision of an administrative tribunal.

Cases referred to:

1. Dr. W. Lokuge v. Vidyajothi Dr. Dayasiri Fernando and others (CA/WRIT/ 160/2013, CA minutes of 16.10.2015)
2. Ratnayake v. Administrative Appeals Tribunal and others [2013] 1 Sri LR 331

APPLICATION for Writs of Certiorari and Mandamus.

Dr. Sunil Coorey with Buddhika Gamage and Previ Karunaratne for the Petitioner.

Zuri Zain, S.S.C., with Nayomi Kahawita, S.C., for the Attorney General.

cur. adv. vult.

July 26, 2019

NAWAZ,J.

The Petitioner seeks three remedies in this application for judicial review;

1. A writ of certiorari against the Administrative Appeals Tribunal (AAT) quashing its order dated 18.12.2012 in the Appeal bearing No. AAT/32/2012.

2. A writ of certiorari quashing the order made by the Public Service Commission (PSC) dated 26.12.2011.

3. A writ of mandamus compelling and/or directing the 4th Respondent and/or added Respondents to the post of Class III in the Sri Lanka

Teachers Education Service (SLTES) with effect from 09.11.2008 with all privileges attached thereto.

The gravamen of this application is traceable to the rejection of the Petitioner's application to join the Class III of the SLTES. Having joined the teaching service as a Grade 3 (1) teacher on