De Zoysa V. Public Service Commission

1960 Present : H. N. G. Fernando, J.

S. G. DE ZOYSA, Petitioner, and THE PUBLIC SERVICE
COMMISSION et al., Respondents

S. C. 250-Applicationfor the grant and issue of Mandates in the
nature of Writs of Certiorari and Mandamus

Public officer-Compulsory retirement of public officers Procedure-" Retirement Rules "-Legal effect of Rules-Public and Judicial Officers (Retirement) Ordinance (Cap. 253), s. 2-Rules made thereunder and published in the Gazettes of 29th April 1949 and 2Pth April 1955-Public Service Commission Rules issued by direction of the Public Service Commission 00 21st August 1956, Rules 60-62-Public Service Commission Rules published in the Gazette of 22nd September 1947, Rules 62, 63-Ceylon (Constitution) Order-in-Council, 1946, Articles 57, 60, 61, 72, 87, 88-State council Order-in-Council, 1931, Articles 86, 89-Public Services Regulations published in Gazette of 30th June 1931, Regulations 82, 87-0ertiorari-Marulamus.

The petitioner was a member of the Police Force since 1931. Prior to the date of the present application he held the appointment of Deputy Inspector-General of Police and, in terms of section 57 of the Ceylon (Constitution) Order-in-Council, 1946, held office under the Crown" during Her Majesty's pleasure". He was born in 1909 and was fifty years of age on 15th January 1959. He was liable, under the" Retirement Rules" made under the Public and Judicial Officers (Retirement) Ordinance, to be required by the Public Service Commission to retire upon his completing the age of fifty years or at any time thereafter. On 6th November 1958 he was granted by the Permanent Secretary to the Ministry of Defence and External Affairs an extension of service for one year with effect from 15th January 1959; but this extension was stated to be subject to the Retirement Rules. He received a further letter of extension on 20th October 1959 and expected that he would not be called upon to retire before 16th January 1961. Nevertheless, on 27th November 1959 the Public Service Commission made order requiring the petitioner to retire from service on 1st March 1960. No opportunity was given to the petitioner to show cause against the action proposed to be taken. Admittedly the order of retirement was not preceded by the procedure prescribed by Rules 60-62 of the Public Service Commission Rules of 21st August 1956 or by Rules 62 and 63 of the Rules published in the Gazette of 22ml September 1947.

Held, that the Public Service Commission Rules relating to the procedure to be followed prior to the retirement of a public officer did not have the same legal effect as a statutory provision and could not, therefore, be enforced by Certiorari and Mandamus.

APPLICATION for Writs of Certiorari and Mandamus.

H. V. Perera, Q. C., with H. W. Jayewardene, Q. C., S. J. Kadirgamar, W. T. P. Goonetilleke and H. L. E. Cooray, for Petitioner.

V. Tennekoon, Deputy Solicitor-General, with B. O. F. Jayaratne, Senior Crown Counsel, and R. S. Wanasundera, Crown Counsel, for 2nd and 3rd Respondents and 4th substituted Respondent.

Cur. adv. vult.

November 15, 1960. H. N. G. FERNANDO, J.

The petitioner has been a member of the Police Force since 1931, and at the time of the occurrence of the event which led to the making of this Application, held the appointment of Deputy Inspector-General of Police. In terms of section 57 of our Constitution he held office" during pleasure". Having been born in 1909, he was fifty years of age on January 15th 1959.

Rules made under the Public and Judicial Officers (Retirement) Ordinance (Cap. 253) and published in the Gazette of April 29, 1949, as subsequently amended by a Rule published in the Gazette of April 29, 1955, (to which I will for convenience refer as the" Retirement Rules") provide inter alia that the" competent authority" may require an officer of the Police Department to retire upon his completing the

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