DAYANA AND OTHERS

Vs.

SECRETARY, MINISTRY OF EDUCATION, SOUTHERN PROVINCE AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA,J.
CA/WRIT/269/2016

Writs of certiorari and mandamus-Scheme of recruitment of teachers by the Southern Provincial Council-Inconsistency of the scheme with the national policy of the Central Government-Articles 12(4) and 55 of the Constitution-Provincial Councils Act, No. 42 of 1987, section 32(3)-lrrationality-lnterference with discretion on cogent grounds

The petitioners who are graduates residing in the Southern Province filed this application against the respondents seeking to quash by way of a writ of certiorari the decision of the respondents to make appointments of graduates in the Southern Province to Class 3 Grade I of the Sri Lanka Teachers' Service based on a Divisional Secretariat basis; and to compel the respondents by way of a writ of mandamus to follow the recruitment procedure laid down in the Sri Lanka Teachers' Service Minute issued by the Central Government, which is not based on a Divisional Secretariat basis but on a Merit basis and subsequently a School basis.

The pivotal argument of the petitioners was that a Provincial Council cannot deviate from the National Policy of the Central Government on any subject or area including the scheme of recruitment.

Held:

1. In terms of section 32(3) of the Provincial Councils Act, No. 42 of 1987, the Governor is not mandatorily required to follow the schemes of recruitment prescribed by the centre, but shall endeavour as far as· practicable to do so.

2. As much as the policy of the centre changes from time to time, such as, from Merit basis to School basis, the provincial policy on Divisional Secretariat Division basis is also bound to change. The impugned scheme of recruitment for the Teachers' Service has been introduced to address the, specific issue of the dearth of teachers in identified difficult schools and to maintain the continuity of service.

3. Article 12(4) of the Constitution allows special provisions to be made by law, subordinate legislation or executive action, for the advancement of women, children or disabled persons. The impugned decision was taken to address the issue relating to children, to be specific, the education of the children.

4. The argument that the Divisional Secretariat basis for recruitment is irrational, and that the School basis system introduced by the centre by the Service Minute is more logical and coherent cannot be accepted, as the court is ill-equipped and has no expertise to form an opinion on which policy is best suited to address the specific issue. Unless the scheme of recruitment adopted is patently irrational, the court would be slow to interfere with the exercise of discretion.

Kamalawathie v. Provincial Public Service Commission, North Western Province [2001] 1 Sri LR 1 distinguished.

Cases referred to:

1. Sujeewa Arjuna Senasinghe v. Ajith Nivard Cabraal (SC/ FR/457/2012, SC Minutes of 18.09.2014)
2. Public Interest Law Foundation v. Central Environmental Authority [2001] 3 Sri LR 330
3. Kamalawathie v. Provincial Public Service Commission, North Western Province [2001] 1 Sri LR 1

APPLICATION for Writs of Certiorari and Mandamus.

Shantha Jayawardena with Chamara Nanayakkarawasam for the Petitioner.

Kanishka De Silva Balapatabendi, S.S.C., for the Respondents.

cur. adv. vult.

July 29, 2019

SAMAYAWARDHENA, J.

The petitioners who are graduates residing in the Southern Province filed this application against the respondents seeking to quash by way of a writ of certiorari the decision of the 1st-11th respondents to make appointments of graduates to the Teachers' Service in the Southern Province on a Divisional Secretariat basis; and to compel them by way

of writ of mandamus to follow the recruitment procedure laid down in the Sri Lanka Teachers' Service Minute; and to prohibit them by way of writ of prohibi