The Attorney-General v. Kodeswaran 121

1967 P r e s e n t: H. N. G. Fernando, C.J., and G. P. A. Silva, J.
THE ATTORNEY-GENERAL, Appellant, and
C. KODESWARAN, Respondent
S . C. 408164—D . C. Colombo, 1026jZ

Public servant— Contract o f employment with the Crown—Claim for arrears o f p a y—
Unenforceability by action in the Courts—Relationship between the Crown and
its servants—Inapplicability o f Roman-Dutch Law— Applicability o f English
Law as altered or modified in Ceylon— Right o f action when a public servant’s
terms of engagement are laid down by statute— Treasury Circular issued under
compulsion o f Official Language Act, No. 33 o f 1956— I s it valid ?— Ceylon
(Constitution) Order in Council, 1946 (Cap. 379), ss. 29, 46, 51, 57, 58, 60,
61.
A public servant in Ceylon has no right of redress by action in the Courts for
a breach of any of the covenants and rules governing the salaries and conditions
of service of public officers. This principle is operative except in respect of
terms laid down by sta tu te , and is unaffected, either expressly or by implication,
by the provisions of the Ceylon Constitution.

“ The right to sue the Crown in Ceylon upon a contract is not founded on
Roman-Dutch Law. Accordingly, even if it be the case th a t the ancient laws
of the United Provinces entitled a public officer to sue the Government upon a
contract of employment under the Government, those laws did not, and do n o t
now, apply to Ceylon. I t follows th a t the question whether the plaintiff in
the present case has a right to sue the Attorney-General must be determined
under the English law as altered or modified by the laws of Ceylon. ”
Plaintiff, who was appointed an officer of the General Clerical Service on
1st November 1952, was promoted on 1st October 1959 to the Executive Clerical
Class on the results of a competitive examination, in which Sinhala or, in the
alternative, Tamil was a compulsory subject. The plaintiff, who is Tamil
by race, chose Tamil as his language subject. According to the Minutes applicable,
the salary scales, cadre, and conditions of service were liable to alteration
from time to time.

On 4th November 1961, a now Treasury Circular No. 560 provided, on pain of suspension of increment falling due, th a t officers of the category to which the plaintiff belonged must pass a proficiency te3t in Sinhala.

The plaintiff did not present himself for the requisite examination, and the suspension of the increment which fell due on 1st April 1962 was ordered.

He sought in the present action a declaration that the Treasury Circular No. 560 of 4th November 1961 was unreasonable and/or illegal and not binding on him, and that he was entitled to the payment of the increment. I t was contended that the Circular was issued under the compulsion of the Official
Language Act No. 33 of 1956 and that, inasmuch as the latter Act was ultra vires because it transgressed the prohibitions against discrimination contained in Section 29 of the Constitution, the Circular too was invalid.

Held, that the provisions of th e covenants and rules governing the public service are not enforceable by action. This principle must apply to all such provisions, including those which prescribe rates of pay and increments, and it denied to the present plaintiff a right to sue for the increment alleged to be due to him under the Minutes. I t was not necessary to consider the submissions as to the invalidity of the Official Language Act, because the plaintiff was not entitled to a remedy in the Courts for any alleged default in the payment to him of the increment, even if the relevant minutes and regulations provided
for such a payment.
LXX—6
1»—– H 9788—2,100 (12/67)
122 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran
A.PPEAL from a judgment of the District Court, Colombo.
Walter Jayawardena, Q.C., Acting Attorney-General, with H. Deheragoda,
Senior Crown Counsel, and H . L . de S ilva , Crown Counsel, for the
Defendant-Appellant.
C. Ranganathan, Q.C., with S . Sharvananda, S .C . Crossette-Thanibiah, D. S . Wije.wardene, N . Kasirajah , K . Thevarajah, M . Underwood and L. A . T . W illiams, for the Plaintiff-Respondent.

August 30, 1967. H. N. G. F e r n a n d o , C.J.—

The plaintiff was appointed an Officer of the General Clerical Class of the General Clerical Service on 1st November 1952, and on 1st October 1959 he was promoted to Grade II of the Executive Clerical Class of the General Clerical Service on a salary scale of Rs. 1,620 to Rs. 3,780 per annum with annual increments of Rs. 120. An increment of Rs. 10 per month fell due to the plaintiff on 1st April 1962, but on 28th April 1962 he was informed by a letter P2 from the Government Agent, Kegalle (at that time the Head of the Department in which the plaintiff was serving), that the increment had been suspended under the provisions of a Treasury Circular No. 560 of 4th December 1961. The plaintiff sought in this action a declaration that the Circular is unreasonable and/or illegal and not binding on the plaintiff, and that the plaintiff is entitled to payment of the increment which fell due on 1st April 1962. This appeal is from the judgment of the learned District Judge granting such a declaration.

At the time when the plaintiff was promoted to the Executive Clerical Class, the Minutes applicable in relation to recruitment, conditions of service, and salary scales were those published in the Gazette of October 1,

  1. Paragraph 5 of the relevant Minute provided that appointments to the Executive Clerical Class will be made from among members of the General Clerical Class (to which the plaintiff belonged until 1959) on the results of a competitive examination. The regulations and syllabus for the examination were set out in Appendix D to the Minute which prescribed three subjects of examination, i.e., (1) Accounts,
    (2) Regulations, procedure and office system, and (3) Sinhala or Tamil. The plaintiff, who is Tamil by race, chose Tamil as his language subject for the examination. Paragraph 7 of the Minute provided that Officers in Grade II of the executive Clerical Class must pass an examination in National Languages
    prescribed in Appendix C before they proceed beyond the Efficiency Bar the stage of Rs. 3,180. Appendix C required clerks of Sinhala, Tamil r Moor parentage to pass in one language. Thus under Appendix C the plaintiff could have chosen Tamil as his language subject for this examination as well.
    l i . N. G. FERNANDO, C .j.— The Attorney-General v. Kodeeswaran 123. I must note here that the Minute clearly states that the salary scales, cadre, and conditions of service are liable to alteration from time to time.
    On 4th December 1961 a new Treasury Circular No. 560 provided that Officers of the category to which the plaintiff belonged must pass a proficiency’ test in Sinhala. According to this Circular a Tamil officer (as the plaintiff is) is required to pass a test in Sinhala at 3rd standard level within one year from 1st January 1961, a test at 5th standard level within two years, and at J. S. C. standard within three years. The Circular provided for suspension of an increment falling due after February 17, 1962 in a case of an officer failing the test. The plaintiff did not present himself for the requisite examination, and the suspension of his increment which fell due on April 1, 1962 was ordered in pursuance of the Circular on the ground that he had not passed the first of the language tests prescribed in the Circular. One of the grounds on which the plaintiff’s action was resisted by the
    Attorney-General is that a public servant in Ceylon has no right to sue the Crown for the recovery of wages claimed to be due for service under the Crown. This defence, which was rejected by the learned trial Judge, raises questions of great importance and difficulty, and the Court is
    much indebted to Counsel for the full and able arguments presented at the hearing of this appeal.
    The first question to be decided is whether the relationship between the Crown and its servants in Ceylon is regulated by the Roman-Dutch Law, or else by the English Law as altered or modified in its application in this country’. The contention that the Roman Dutch Law applies is supported by two early decisions of this Court which are reported in Ramanathan’s Reports 1863-68.
  2. The earlier of the two decisions (Jantz v. Tiran ck e ll1) was in a case in which the question arose whether the salary’ of a public servant could be seized in execution of a decree against him. The Court there stated that it is certain, and that the Queen’s Advocate admitted, that the salary of
    a public officer, when is service has been properly performed, is due to him as a debt. The Court proceeded to consider the Roman Dutch Law regarding the liability to seizure of the salary of a public servant, and held that the salary was sizable, but only if other assets of the debtor were not available to satisfy the decree, and if a Court in its discretion regarded the seizure as not being contrary to the public interest in the circumstances of a particular case. The order ultimately’ made was that the salary of the public servant concerned was not, in the circumstances, liable to seizure.
    Thus the Roman-Dutch Law was held applicable to the question whether the salary is sizeable. But it is not clear from the Judgment on what basis the Court thought it certain that the salary is a debt due.
    1 Ramanathan’s Reports (1863-68) p. 160.
    124 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeeswaran public servant. There is no statement that this is a principle of Roman-Dutch Law or else of English Law. Nevertheless, it is a fair
    implication that the Crown did not in this case contend that no action lies for the recovery of a public servant’s salary. The later decision in Fraser’s case 1 was in a suit against the Queen’s
    Advocate, for the recovery of balance salary due to the plaintiff as Postmaster of Galle and as a packet agent, on the ground that he had been wrongfully dismissed from those offices. The first of these offices was held under the Ceylon Government, and the second under the Imperial
    (British) Government. The action was dismissed by the Supreme Court on the ground that the plaintiff held his offices during pleasure, and that he had no right of action at all, so far as the (Ceylon) Postmaster ship was concerned, as to anything that happened after the date of his dismissal, because it had been shown that he had in fact been paid his salary up to that date.
    Nevertheless, in considering the plaintiff’s claim for his salary as the holder of an office under the Imperial Government, the Court drew a distinction between the respective rights of such an officer and of one employed under the Ceylon Government. The Court was of opinion that whereas an action would not lie at all in the former case, an action for earned salary would lie against the Queen’s Advocate in the latter case. The entire relevant passage in the Judgment has to be cited here :—
    “ We humbly consider that Her Majesty’s predecessors and Her
    Majesty have been graciously pleased to lay aside, as to this island,
    part of the prerogative of the Crown as to immunity from being sued.
    By proclamation of the 23rd September 1799, it was amongst other
    things published and declared that the administration of ‘ justice and
    police in the settlements and territories in the Island of Ceylon with
    their dependencies, shall be henceforth and during Her Majesty’s
    pleasure exercised by all courts of jurisdiction, civil and criminal,
    magistrates and ministerial officers, according to the laws and institutions
    that subsisted under the ancient Government of the United
    Provinces, subject to such deviations and alterations by any of the
    respective powers and authorities hereinbefore mentioned, and to
    such other deviations and alterations as shall by these present or by
    any future proclamation and in pursuance of the authorities confided
    to us, deem it proper and beneficial for the purposes of justice, to
    ordain and publish, or which shall or may hereafter be by lawful
    authority ordained and published.’
    ” Afterwards, the Ordinance No. 5 of 1835, (which was allowed and
    confirmed by Her Majesty) repealed parts of the said proclamation,
    but expressly reserved and retained so much of it as doth publish
    and declare that ‘ the administration of justice and police within the
    settlements then under the British dominion and known by the designation
    of the maritime provinces should be exercised by all the courts of
    judicature, civil and criminal, according to the laws and institutions
    that subsisted under the ancient Government of the United Provinces.’
    1 Bam. p . 316.
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran 125
    “ The Ordinance of 1835, itself expressly re-enacts this, and it uses
    the following words, ‘ which laws and institutions it is hereby declared
    are and shall henceforth continue to be binding and administered
    through the said maritime provinces and their dependencies, subject
    nevertheless to such deviations and alterations as have been or shall
    hereafter by lawful authority be ordained.’
    “ We humbly consider that by these declarations of the royal will,
    Her Majesty’s subjects in this island, who had or might have any money
    due to them from the local Government for wages, for salary, for work,
    for materials, in short for anything due on an obligation arising out of
    contract, were permitted to retain the old right given by Roman Dutch
    Law to sue the advocate of the fiscal, now styled the Queen’s Advocate,
    for recovery of their money. And if the present plaintiff could have
    shown that any money was due to him under his colonial appointment
    as Galle post-master, he might have maintained this action. He
    might have done so in respect of salary due for any period during
    which he actually served, and also in respect of the further period for
    which he, still holding the appointment de ju r e , was ready and willing
    to serve, but was prevented from serving by the wrongful act of his
    employer.”
    This statement of the law of Ceylon cannot be regarded as being merely
    obiter. It is clear that, if any salary earned by the plaintiff prior to the
    date of his dismissal had not in fact been paid to the plaintiff, the Court
    would have given judgment for the plaintiff for the unpaid amount;
    this on the basis that a right to sue for salary had existed under the
    Roman-Dutch Law.
    The general question of the right of the subject in Ceylon to sue upon a
    contract with the Crown was considered in the case of J ayaw arden a v.
    Queen’s A d vo ca te1. The Court there stated that “ the right to sue the
    Crown in the person of the Queen’s Advocate for claims arising
    ex contractu has not only been upheld by the Courts of the Colony, but
    has been recognised by the Legislature in several enactments Reference
    was thereafter made to Ordinances No. 9 of 1852, No. 7 of 1856 and No. 11
    of 1868, all of which contemplated the possibility of suits upon contract
    by private parties against the Queen’s Advocate. There followed the
    following observations :—
    “Under these circumstances, we think it too late, at this day, to
    contest in this Court the validity of this practice. We are bound by
    the previous decisions of this Court, particularly by the considered
    decision of the Collective Court in the case of Fraser v. The Queen’s
    Advocate. To hold at this date, for the first time, that a practice,
    which has so long been sanctioned by the Courts and acquiesced
    in by the Government, is bad in law, and cannot be sustained, would
    necessarily create widespread confusion and inconvenience, practically
    amounting in many cases to injustice. If the precedents and decisions
    upon which this Court acts are wrong, it must be left to the Court of
    appeal to set us right.
    1 4 S. C. Circular 77.
    H 9733 (12/87)
    126 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran
    It was urged by the Queen’s Advocate that the practice of suing
    the Crown is an attempt to impugn the royal prerogative, by virtue
    whereof no suit or action can be brought against the sovereign ; and
    such, no doubt, it would be if the prerogative has not been waived in
    this respect. This Court in Fraser’s case humbly expressed an opinion
    that it had been so waived, and we humbly venture to share that
    opinion. It should be observed that the question is, after all, one
    purely of procedure. If a judgment be obtained against the Queen’s
    Advocate, no execution can issue either against the Queen’s Advocate
    personally or against the Crown. See Marshall, p. 75 ; Thomson’s
    Institutes, p. 12. A judgment in an action or suit ex contractu against
    the Queen’s Advocate gives little, if anything, more than a successful
    petition of right would do in England. It is merely, as it appears to
    us, a mode of procedure by which a subject is able to prefer and
    substantiate his claim against the Crown. Compliance with the claim
    when substantiated must still be, as we take it, a matter of grace.
    Petitions of right are now in England prosecuted as ordinary actions ;
    and as a matter of convenience, we see no objection to parties
    preferring their claims against the Crown here in the form of a suit
    against the Queen’s Advocate.”
    The learned Acting Attorney-General in his argument before us
    suggested that Frase r’s case, while rightly deciding that the Crown could
    be sued upon a contract in Ceylon, was wrong in basing the decision on
    the Roman-Dutch Law. He further argued on the authority in the
    concluding passage cited above from J a yaw a rd en a ’s case that the waiver
    of immunity from suit by the Crown in Ceylon consisted merely of the
    acknowledgment of a right to sue the Crown in lieu of the right under
    English Law to proceed by way of a petition of right. His argument,
    in my opinion, gains support from the observation in J a yaw a rd en a ’s case
    that a suit ex contractu against the Queen’s Advocate appears to be merely
    a mode of procedure by which the subject is able to prefer his claim,
    and is thus the equivalent of the English Petition of Right.
    Shortly after J a yaw a rd en a ’s case, there was decided in the Privy
    Council the case of S im an A p p u v. Queen’s Advocate 1, in which it was
    held that a suit upon a contract can be instituted in Ceylon against the
    Queen’s Advocate as representing the Crown. Their Lordships considered
    the question whether the Roman Dutch Law entitled a subject
    to sue an Officer of Government on behalf of the Government. The note
    of the argument of Counsel in that appeal shows that Fra se r’s case
    (as reported in Creasy’s Reports p. 10) and J a yaw a rd en a ’s case
    (incorrectly cited as Fernandez v. The Queen’s Advocate) were considered
    in the discussion of this matter. But their Lordships concluded their
    consideration of the question with these observations :—■
    “ There certainly seems no more antecedent reason why the Counts
    of Holland should be exempted from suit through their officers than
    1 9 App. Cases p. 571.
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran 127
    existed for the exemption of the King of Scotland. And though it
    is very likely that whilst great potentates, like the Dukes of
    Burgundy and the Kings of Spain, were Counts of Holland, it would
    not be very safe to sue them, yet when the United Provinces became
    independent, suitors might find themselves more favourably placed. ”
    “ But whatever speculations may be made upon these points their
    Lordships cannot advise Her Majesty that such was the Roman-
    Dutch Law, unless it is shewn to them that it was so. And neither
    the researches of counsel nor their own have enabled their Lordships
    to attain any certainty on the subject.”
    It appears to me that the true ratio decidendi of S im an A p p u ’s case
    can be deduced from the following passages of the judgment:—
    “ That a very extensive practice of suing the Crown has sprung up
    is certain. In his judgment in the case of Fernando, which was decided
    immediately before the present case came under review, Cayley, C. J.,
    says, ‘ The practice has been recognised in many hundreds of decisions,
    and long acquiesced in by the Crown, and so far as I am aware, has
    not till now been called in question.’ It was recognised by the
    judgment of the Court in Frase r’s case, decided in the year 1868. ”
    “ In Mr. Justice Thompson’s Institutes of the Laws of Ceylon,
    after referring to the English petition of right, he says that, the Ceylon
    Government having no Chancellor, a suit against the Government
    has been permitted, and the Queen’s Advocate is the public officer
    who is sued on behalf of the Crown. He then points out that, except
    in land cases, this action gives little more than is given by the petition
    of right, for no execution can issue against the Crown or against the
    Queen’s Advocate. ”
    “ It is then certain that prior to 1868 there was such an established
    practice of suing the Crown that the legislature took it for granted and
    regulated it. The same state of things must have existed prior to
    1856, for the Ordinance of 1868 is only a re-enactment of an earlier
    Ordinance of 1856. Earlier Ordinances still have been referred to,
    but their Lordships do not discuss them, because, though they speak
    of suits in which the Crown is defendant, and though it is the opinion
    of the Supreme Court, and is probable, that they refer to claims
    ex contractu, it is not clear that they do so.”
    “ Whatever may be the exact origin of the practice of suing the
    Crown, it was doubtless established to avoid such glaring injustice
    as would result from the entire inability of the subject to establish
    his claims. And finding that the legislature recognised and made
    provision for such suits at least twenty-eight years ago, their
    Lordships hold that they are now incorporated into the law of the
    land.”
    128 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran
    The reference in the first of the passages just cited to the judgment in
    Fraser’s case shows that their Lordships relied on that case, not for the
    proposition that the Proclamation of 1799 (now chapter 12 of the Revised
    Edition 1956) had waived the Crown’s immunity from suits upon contract,
    but instead only for the fact that this Court had often recognised the
    practice of suing the Crown. The judgment of Cayley, C.J., in
    Jayawardena’s case (incorrectly referred to as that of Fernando) was
    relied on in the same way.
    There is accordingly the highest judicial authority, in the
    decision of S im an A p p u ’s case in 1884, to the effect that (as stated in the
    head note) : “ There is no authority for saying that the Roman Dutch
    law of Holland, which was in force in Ceylon at the date of its conquest
    by the British, and has not since been abrogated, empowered the subject
    to sue the Government. Instead the right to sue exists because there
    had been a very extensive practice of suing the Crown which was
    recognised by the Legislature and such suits are now incorporated into
    the law of the land.”
    The learned Acting Attorney-General has suggested certain other
    considerations which tend to support the view that the Proclamation of
    1799 was not intended to make the Roman-Dutch Law applicable to
    the relationship between the Crown and public servants in Ceylon. The
    first is that the Proclamation, in referring to the Civil and Criminal
    Jurisdiction of the Courts, was not intended to cover matters which
    are the subject of Constitutional or public law, and that the relationship
    between the Crown and its servants is such a matter. I do not find it
    necessary to decide the point thus raised, and am content to observe
    that an argument which invokes the Proclamation must logically include
    the proposition that even the right of dismissal at pleasure existed in
    Ceylon by virtue of Roman-Dutch Law, and not as a principle of English
    Law. But I see much substance in the other suggestion that, in regard
    to so fundamental a matter as the relationship between the Crown and
    its servants (many of whom must at the time have been British by birth
    and race), the Proclamation could not have intended that such a matter
    would be regulated otherwise than by the the law applicable in Britain
    and in other territories of the British Crown. The explanation given
    in Thompson’s Institutes that a suit against the Government had been
    permitted of necessity and in lieu of the English petition of right, because
    the Ceylon Government had no Chancellor, is one which is in all the
    circumstances most acceptable.
    When this Court in Fraser’s case assumed that the wages of a public
    servant in Ceylon, when earned, are a debt due to him, the Court in so
    doing did not consider the question whether this principle was a matter
    of Roman-Dutch Law or else of English law. But it is clear from the
    judgment that the Court did recognize that the p ow e r to a p p o in t pu b lic
    officers in Ceylon was a power derived from, and exercised on behalf
    of, the Crown ; the judgment in this connection refers to the powers
    of appointment granted to the Governor by his letter of appointment
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Koderwarcm 129
    (presumably Letters Patent) and to Colonial Rules and Regulations
    (p. 321 Ram. 1863-68). The grant of such powers by the British
    Sovereign must fairly be presumed to have been an exercise of the Royal
    Prerogative under the law of England, and not to any authority of a
    Sovereign under Roman-Dutch law ; if this were otherwise, the Court
    in Fraser’s case could not have held that the power to dismiss a public
    officer at pleasure existed in Ceylon without first deciding that such a
    power existed in Roman-Dutch law. The efficacy or validity of
    appointments made by the executive in Ceylon was therefore referable
    to the law of England ; and it follows in my opinion that the nature and
    legal effect of the relationship constituted by such appointments had
    also to be determined by reference to English law.
    For these reasons I would hold, applying the judgment of their
    Lordships of 1884, that the right to sue the Crown in Ceylon upon a
    contract is not founded on the Roman-Dutch Law. Accordingly, even if it
    be the case that the ancient laws of the United Provinces entitled a public
    officer to sue the Government upon a contract of employment under
    the Government, those laws did not, and do not now, apply in Ceylon.
    It follows that the question whether the plaintiff in the present case has
    a right to sue the Attorney-General must be determined under the
    English law as altered or modified by the laws of Ceylon.
    The question whether under English law a Civil Servant has the
    right to sue for earned wages, whether by way of a petition of right or
    otherwise, has been referred to by Judges and text writers as one of
    much doubt and difficulty. But the case of High Commissioner f o r
    In d ia v. L a l l1 is at the least a definite pronouncement on the law on this
    question as applicable in British India. In that case Mr. Lall, who had
    been a member of the Indian Civil Service, was dismissed from service
    by the appropriate authority, and he claimed in the action a declaration
    that his removal was ultra vires, that he was still a member of the Indian
    Civil Service, and that as such he was entitled to all rights secured to him
    by the covenant rules and regulations issued from time to time by the
    appropriate authorities. After considering the provisions of s. 240 of
    the Government of India Act 1935, their Lordships held that there had
    been a breach of a provision of s. 240 which required that a civil servant
    shall not be dismissed unless he has been given a reasonable opportunity
    of showing cause against the action proposed to be taken in regard to him
    and that the purported removal from office of Mr. Lall was void and
    inoperative. They accordingly granted a declaration to that effect
    and to the effect that Mr. Lall remained a member of the Indian Civil
    Service at the date of the institution of his action.
    Their Lordships thereafter considered a submission for Mr. Lall that
    he was entitled to recover in the action his arrears of pay from the date
    of the purported order of dismissal up to the date of his action. They
    said that “ it is unnecessary to cite authority to establish that no action
    1 {1948) A . I . R . {Privy Council), p . 121.
    I
    130 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran
    in tort can lie against the Crown and therefore any right of action must
    either be based on contract or conferred by Statute Reliance was
    then placed on a judgment of Lord Blackburn in the Scottish case of
    M v lv en n a v. The A dm i r a l ty 1 in which the matter had been discussed as
    follows :—
    “ These authorities deal only with the power of the Crown to dismiss
    a public servant, but they appear to me to establish conclusively
    certain important points. The first is that the terms of service of
    a public servant are subject to certain qualifications dictated by public
    policy, no matter to what service the servant may belong, whether it
    be naval, military or civil, and no matter what position he holds in
    the service, whether exalted or humble. It is enough that the servant
    is a public servant, and that public policy, no matter on what ground
    it is based, demands the qualification. The next is that these qualifications
    are to be implied in the engagement of a public servant, no
    matter whether they have been referred to in the engagement or not.
    If these conclusions are justified by the authorities to which I have
    referred, then it would seem to follow that the rule based on public
    policy which has been enforced against military servants of the Crown,
    and which prevents such servants suing the Crown for their pay on the
    assumption that their only claim is on the bounty of the Crown and
    not for a contractual debt, must equally apply to every public servant
    (see (1920) 3 K. B. 663, 25 R. 112 and other cases there referred to).
    It also follows that this qualification must be read, as an implied
    condition, into every contract between the Crown and a public servant,
    with the effect that, in terms of their contract, they have no right to
    their remuneration which can be enforced in a Civil Court of Justice,
    and that their only remedy under their contract lies in an appeal of
    an official or political kind.”
    Mulvenna’s case itself concerned the question whether the salary of
    a civil employee of the Admiralty could be arrested in the hands of the
    Commissioners of the Admiralty at the instance of a person holding a
    decree against the employee for the payment of a sum of money.
    Although the Court, including Lord Blackburn, did refer to earlier
    decisions in which there had arisen the particular question whether the
    salary of a civil servant is attachable, it seems clear that Lord
    Blackburn’s own conclusion was based firmly on the primary proposition
    that a civil servant has no right to remuneration which can be enforced
    in a civil Court. After the passage I have already cited, there occur in
    the judgment the following observations :—
    “ It further appears to me that, if this conception of the effect of
    public policy on the contract itself had been developed earlier, it
    would have led to the same conclusions in the numerous cases to
    which the Lord Ordinary has referred as were reached on different
    {1926) S . C. S42.
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeetoaran 131
    and, in some cases, on somewhat unsatisfying grounds. It would
    also have avoided the necessity for several statutory provisions
    applicable to the pay of particular services which must now be
    regarded as merely declaratory of the common law.”
    Their Lordships in Lodi’s Case referred to the provisions applicable to
    public servants in India prior to the Government of India Act 1935
    and to the relevant provisions of the Government of India Act 1919.
    Section 96B of that Act had declared that a civil servant holds office
    during His Majesty’s pleasure,………….but no person in that service
    may be dismissed by any authority subordinate to that by which he
    was appointed ”. Under sub-section (2) of s. 96B the Secretary of
    State for India in Council had been empowered to make rules for
    regulating in te r a lia the conditions of service, pay and allowances, and
    discipline and conduct, of the Civil Services of India. One such rule had
    provided certain conditions precedent to the dismissal of a civil servant
    such as : that he must be afforded an adequate opportunity of defending
    himself, that charges should be framed and communicated to the person
    charged, that a written defence must be entertained if made, and that an
    enquiry must be held if the person charged so desires. These provisions
    were the subject of consideration in the Privy Council in 1938. In the
    case of R an g a ch a r i1 their Lordships held that the provision in -s. 9 6B (1)
    itse lf which prohibited the dismissal of an officer by any authority
    subordinate in rank to the authority that appointed him was peremptory,
    and that a dismissal purporting to be made in violation of that provision
    was void and inoperative. But in Venkata R a o s case 2 decided on the
    same day, their Lordships rejected the contention that a dismissal in
    breach of the rules made under s. 9 6B could give rise to a right of action
    by the dismissed officer. Reference was made to an observation in
    Gould’s case 3 :—
    “ The argument for a limited and special kind of employment
    during pleasure, but with the added contractual terms that the rules
    are to be observed is too artificial and far-reaching. ”
    Their Lordships regarded ” the terms of the section (96B (2) ) as
    containing a statutory and solemn assurance that the tenure of office
    though at pleasure will not be subject to capricious or arbitrary action but
    will be regulated by rule………….Their Lordships are unable as a matter
    of law to hold that redress is obtainable from the Courts by action. To
    give redress is the responsibility of the Executive Government. ”
    Accepting these propositions, the Privy Council decided in L a ll’s case that
    a public officer had no right to claim arrears of pay under his covenant,
    or in other words that he had no contractual right enforceable by
    action.
    1 {1037) A . I . R. (P.C.) 27. * Idem p. 31.
    USytj) A. C. 575.
    132 H. N. G. FERNANDO, C.J.—The Attorney-General v. Kodenoaran
    I must note at this stage that at least until the coming into effect of
    the Ceylon State Council Order in Council, 1931, and perhaps even until
    the coming into operation of the Ceylon Constitution Order in Council
    1946, the position of public servants in Ceylon was regulated in a manner
    similar to that which had obtained in India under the Government of
    India Act, 1919. Their Lordships in Venkata R a o ’s case referred to the
    fact that s. 96B, in sub-section (5), reaffirmed the supreme authority
    of the Secretary of State over the Civil Service, and relied on this fact
    for the opinion that rules made under that section did not confer rights
    enforceable by action in the Courts. A similar supreme authority was
    formerly vested in the Secretary of State for the Colonies over the public
    se rvic es of Ceylon. For much the g re a te r period of British rule in Ceylon,
    the right to dismiss at pleasure was implied and recognised in the case
    of the public service of Ceylon, and the pay and conditions of service
    were regulated by, or under delegated authority from, the Secretary of
    State. Such rules and regulations, as also the Pension Minute applicable
    to the public service, were not statutory enactments, nor (unlike the
    Indian Rules after 1919) were they even made under empowering
    statutory provisions.
    It is clear to me for these reasons that prior to the operation of the
    Ceylon Constitution Order in Council, 1946, the nature of the rights of
    a public servant in Ceylon was similar to that of a public servant o” India,
    and that upon the reasoning in the Indian decisions cited above, a
    public servant in Ceylon had no right of redress by action in the Courts
    for a breach of rules and regulations prescribing the salaries and conditions
    of service of public officers. It would seem to follow therefore that
    the grounds of the decision in L a ll’s case in particular, holding that a
    public servant had no right to sue for his wages, were applicable also
    in the case of members of the public services of Ceylon.
    Counsel for the plaintiff in the present appeal referred to several
    decisions of English and Australian Courts in support of his argument
    that the Scottish case of Mulvenna was wrongly decided, and that
    accordingly the decision of the Privy Council in L a ll’s case should not
    be followed. Certain of the English and Australian decisions, it was
    urged, did acknowledge the right of a public servant to sue for his earned
    wages. I must refer even briefly to some of these decisions.
    In the case of Carey v. The Commonwealth1 the Court did hold that a
    public servant did have the right to sue for earned remuneration. But
    the only precedent relied upon by the Judge in Carey’s case in support
    of this alleged right was the decision in W illiam s v. H ow a r th a. The
    report of this latter case, however, shows that the plea was never taken
    in argument that the Crown could not be sued for wages. The plea if
    taken would undoubtedly have succeeded, for the suit was one for wages
    claimed by a member of the Armed Forces of Australia who had served
    with the British Imperial Forces in South Africa. The only question
    1 SO Comm. L. R . 132. 2 (1905) A . C. 551.
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran 133
    decided was whether payments made by the Imperial Government
    should be taken into account in determining whether the plaintiff had
    received the wages payable to him by the Australian Government. The
    case should not, J think with respect, have been regarded as authority
    for the proposition that a military or civil servant of the Crown had a
    right to sue for earned wages.
    The t ase of L u c y v . The Commonwealth1 was much relied on by Counsel
    for the plaintiff in support of the alleged right to sue the Crown on a
    contract of employment. The plaintiff in that case had until March 1901
    held office in the Postal Department of South Australia. At that stage
    the Department was taken over by the Commonwealth and the plaintiff
    was then transferred to the Commonwealth Public Service. In 1919
    the plaintiff was notified that he would be retired from the Commonwealth
    Public Service upon attaining the age of 65 years, and in May 1919 he was
    actually so retired. The plaintiff claimed that under a South Australian
    Act of 1874 he had acquired a right to retain office until death or
    removal in terms of that Act and that he had been wrongfully retired at
    the age of 65 years. Section 60 of the Commonwealth Public Service
    Act provided that an officer transferred to that Service will retain all the
    existing and accruing rights which he had previously as a member of the
    South Australian Service, and it had been held in an earlier case that this
    Section (despite inconsistent provision in section 74 of the Act) preserved
    to such an officer the right to remain in service after attaining the age of
    65 years.
    In these circumstances the plaintiff claimed (a) a declaration that he
    had been wrongfully removed from service on 11th March 1919, (b ) a
    declaration that he was entitled to retain office until his death or until
    his office was determined in accordance with the South Australian Act of
    1874, and (c) damages for wrongful removal or dismissal. A case stated
    for the opinion of the High Court, after setting out the relevant facts,
    submitted the question “ whether the damages to which the plaintiff is
    entitled should be measured and ascertained by any one or more of the
    following considerations ”, and thereafter invited the Court to determine
    whether or not certain specified matters should be taken into account in
    the assessment of damages.
    Despite references in the judgments to the contract which the plaintiff
    had as a member of the Public Service, it seems to me that the question
    whether a public servant had a right to sue the Crown for his wages was
    not in fact disputed in this case, for, as I have just stated, the Court was
    only invited to lay down the measure of damages as for a dismissal from
    service which was admitted to be unlawful. Indeed the note of the
    argument of the Counsel for the plaintiff contains this passage :—“ the
    dismissal of the plaintiff was a breach of his statutory right and not a
    breach of contract; whichever it is, if the plaintiff’s remedy is damages, the
    1 33 Comm. L . R . 29.
    134 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran
    measure is the same I must refer however to an observation in the
    judgment of Higgims J. that “ this position would be beyond question in
    a case of ordinary contract between employer and employee ; and in my
    opinion the relation between the Commonwealth and the officer is a
    relation of contract (cf. W illiam s v. Howarth) Higgims J. was the
    same Judge who had decided the earlier case of Carey, and I have already
    stated my opinion that he had wrongly relied on the decision in
    Williams v . Howarth.
    It seems to me that L u c y ’s case is not substantially different in principle
    from that of Rangachari decided by the Privy Council in 1937. In each
    case the plaintiff had a right of action because he had been dismissed in
    breach of statutory provision, and not because he was entitled to
    contractual rights.
    The nature of service under the Crown in Canada was considered in the
    judgment of the Privy Council in the case of R e illy v. the K in g 1. The
    suppliant had in 1928 been appointed a member of the Federal Pension
    Appeal Board for a period of five years. In May 1930 the pension
    statutes were amended and in consequence the Pension Appeal Board was
    abolished, and a new Tribunal established in its place. Mr. Reilly was
    not appointed to the new Tribunal, and in October 1930 he was requested
    to vacate the premises which he had occupied in pursuance of his office,
    The following observations of Lord Atkin are important for present
    purposes :—
    “ Both Courts in Canada have decided that by reason of the statutory
    abolition of the office Mr. Reilly was not entitled to any remedy, but
    apparently on different grounds. Maclean J. concluded that the
    relation between the holder of a public office and the Crown was not
    contractual. There never had been a contract: and the foundation
    of the petition failed. Orde J.’s judgment in the Supreme Court seems
    to admit that the relation might be at any rate partly contractual;
    but he holds that any such contract must be subject to the necessary
    term that the Crown could dismiss at pleasure. If so, there could
    have been no breach.
    Then Lordships are not prepared to accede to this view of the contract,
    if contract there be. If the terms of the appointment definitely
    prescribe a term and expressly provide for a power to determine ‘ for
    cause ’ it appears necessarily to follow that any implication of a power
    to dismiss at pleasure is excluded. This appears to follow from the
    reasoning of the Board in Gould v. Stuart. That was not the case of a
    public office, but in this connection the distinction between an office
    and other service is immaterial. The contrary view to that here
    expressed would defeat the security given to numerous servants of
    the Crown in judicial and quasi-judicial and other offices throughout
    the Empire, where one of the terms of their appointment has beeu
    expressed to be dismissal for cause.
    1 (19U) A . G. 176.
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeawaran 135
    In this particular case their Lordships do not find it necessary to
    express a final opinion on the theory accepted in the Exchequer Court
    that the relations between the Crown and the holder of a public office
    are in no degree constituted by contract. They content themselves
    with remarking that in some offices at least it is difficult to negative
    some contractual relations, whether it be as to salary or terms of
    employment, on the one hand, and duty to serve faithfully and with
    reasonable care and skill on the other. And in this connection it will
    be important to bear in mind that a power to determine a contract
    at will is not inconsistent with the existence of a contract until so
    determined.”
    The dicta of Lord Atkin in R e illy ’s case received careful examination
    by the Supreme Court of South Africa in the case of Sachs v. D on g e s1
    in which it was sought to equate the case of the revocation of a passport
    to the Crown’s right to terminate at pleasure the employment of a public
    officer. Referring to Lord Atkin’s statement that “ if the terms of the
    appointment definitely prescribe a term, and expressly provide for power
    to determine for ‘ cause ’, it appears necessarily to follow that any
    implication of a power to dismiss at pleasure is excluded ”, two Judges of
    the South African Court thought it clear that Lord Atkin only contemplated
    cases of appointments under a statutory power, where the statute
    itself by implication excluded the prerogative right of dismissal at pleasure.
    Van den Heever, J.A. said in this connection :—“ Once it is established
    that an act is the exercise of discretionary executive power not regulated
    by statute cadit quaestio, ……… the subject’s redress, if any, is
    political, not judicial.” Centlivres J. expressed his disagreement with
    the construction placed on Lord Atkin’s dictum in the case of Robertson v.
    M in is te r o f P en sion s 2 where Lord Denning had stated that “ in regard to
    contracts of service, the Crown is bound by its express promises as much
    as any subject ”. Let me with great respect state my own reasons for
    disagreeing with that construction.
    In the passage cited above, Lord Atkin first referred to a judgment in
    which Orde J. in the Canadian Supreme Court, seemed “ to admit that
    the relation might be at any rate partly contractual; but he holds that
    any such contract must be subject to the necessary term that the Crown
    could dismiss at pleasure ”. Lord Atkin then expressed inability to
    accede to this view of the contract, i f contract there be. His subsequent
    statement, that, in certain cases, “ any implication of a power to dismiss
    at pleasure is excluded ”, is explained by his reference to the cases of
    “ numerous servants of the Crown in judicial and quasi-judicial and other
    offices throughout the Empire, where one of the terms of their appointment
    has been expressed to be dismissal for cause ”, This reference
    read together with the reference to Gould v. S tua rt 3, indicate that Lord
    Atkin had in mind only cases in which the power to dismiss at pleasure
    1 (1950) (2) S . A. L. R. 265. 1 (1948) 2 A. E . R. 767.
    » (1896) A . C. 575.
    136 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodetwaran
    becomes excluded by contrary provision in a statutory power of appointment.
    Had he intended to say that the power could be excluded by
    contract, he would surely not have failed to refer to de Dohse v. R e g 1
    and to D u n n v. Macdonald 2, both cases in which the contrary opinion
    had been strongly expressed.
    In Gould v. S tuart itself, Lord Hobhouse, in delivering the judgment
    of the Privy Council observed that “ servants of the Crown hold their
    offices during pleasure ; not by virtue of any special prerogative of the
    Crown, but because such are the terms of their engagement, as is well
    understood throughout the public service ”, But the case itself concerned
    an office the tenure of which was regulated by the Civil Service Act of
    New South Wales, the provisions of which were inconsistent with the
    power to dismiss at pleasure. The power of dismissal being thus excluded
    by statute, it was not material to decide the precise base on which the
    power rested. Moreover, it is not easy to understand why an arbitrary
    power of dismissal is to be implied in a contract of employment except
    upon a supposition that such a power exists aliunde. And if such a power
    does exist, it is only the prerogative to which the power is fairly referable.
    With much respect, therefore, I doubt whether the dictum of
    Lord Hobhouse can now be regarded as authority for the proposition
    that the terms of the engagement of servants of the Crown impose on
    the Crown contractual obligations, the breach of which may properly be
    the subject of dispute in Petitions of Right or (in Ceylon) in suits against
    the Attorney-General.
    I do not consider it useful to refer to other cases cited during
    the argument, many of which were concerned with alleged wrongful
    dismissals of servants of the Crown. It suffices for me that we have not
    been referred to any decision holding, despite objection directly taken
    on behalf of the Crown, that a Petition of Right or civil suit lies against
    the Crown to enforce the performance of the terms of the engagement of
    a servant of the Crown, not being terms laid down by statute.
    The Ceylon decision in F ra se r ’s case is thus quite exceptional.
    The decisions of the Privy Council in the appeals from India lay down
    clearly the principle that the provisions of the covenants and rules
    governing the public service are not enforceable by action. This principle
    must apply to all such provisions, including those which prescribe rates
    of pay and increments, and it denies to this plaintiff a right to sue for the
    increment alleged to be due to him under the Minutes.
    There remains one possibility to which I must advert, namely whether
    the provisions of the Ceylon Constitution have affected the operation
    in Ceylon of the principle formerly applicable.
    i (1897) 68 L . J . Q. B . 422. * (1897) 66 L. J . Q. B . 423.
    H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran 137
    Section 57 of the Order in Council declares that (with some exceptions
    not here relevant) every person holding office under the Crown holds the
    office during Her Majesty’s pleasure. Sections 58 and 60 establish a
    Public Service Commission, and vest in the Commission “ the appointment,
    transfer, dismissal and disciplinary control of ‘p u b lic officers ” ,
    i.e., of persons holding a paid office……… as a servant of the Crown in
    respect of the Government of Ceylon (vide s. 3, definition). Section 61
    authorises the Commission to delegate any of its powers, subject to the
    right of appeal to the Commission itself. Thus the powers of appointment
    and dismissal, which were those of the Sovereign in early English
    law, are now exercisable by the Commission. It is not disputed that the
    plaintiff in this case is a public officer within the meaning of these
    provisions.
    Neither in Part VII of the Order in Council, under the title “ The
    Public Service ”, nor in any other provision of the Order, is there express
    statutory declaration vesting in any specified authority the power to
    prescribe the salaries and conditions of service of public officers. But
    Part V, which is entitled “ The Executive ”, vests in Ministers the subjects
    and functions which may be assigned to them by the Prime Minister.
    The subject of “ the public service ” has been so assigned to the Minister
    of Finance, and I have no difficulty in assuming that the Minutes and
    Circulars referred to in this case, which were issued by the Secretary to
    the Treasury or his Deputy, were in fact issued under the authority of the
    Minister of Finance. Under s. 51, the Secretary to the Treasury, who is
    also the Permanent Secretary to the Ministry of Finance, exercises control
    over the departments of Government in charge of his Minister and is thus
    the head of the Public Service, subject only to the special powers reserved
    by s. 60 to the Public Service Commission. The Minister of Finance,
    or his Permanent Secretary, in the exercise of their powers of control and
    administration of the public service, have necessarily to adhere to decisions
    of Parliament, particularly those decisions which are incorporated
    in the Appropriation Acts which appropriate funds for various public
    purposes ; they have also to adhere to decisions of the Cabinet, which
    under s. 46 of the Order in Council is charged with the general direction
    and control of the government of the Island. There has been no suggestion
    during the argument of this appeal that the act of the plaintiff’s
    head of department in withholding the plaintiff’s increment in any way
    infringes or usurps powers which under the Constitution are vested in
    Parliament, the Cabinet, the Public Service Commission, or the Minister
    of Finance. The head of department acted under the provisions of a
    Circular issued by an authority fully competent to issue it.
    I find nothing in the relevant provisions of the Constitution (which
    have just been examined) which can in any way be construed as altering
    or affecting, either expressly or by implication, the principle that the
    terms of a public officer’s engagement to serve the Crown in Ceylon do not
    entitle him to institute a suit to recover earned wages or to enforce the
    138 H. N. G. FERNANDO, C.J.— The Attorney-General v. Kodeswaran
    terms of his engagement. The case of S ilv a v. The Attorn e y -G en e ral1
    is easily distinguishable, for we are not here concerned with anything
    resembling the dismissal from service of a public officer by an authority
    not legally competent to dismiss him.
    Counsel for the plaintiff argued that, although the Crown or the
    Executive Government in Ceylon has a power freely to alter the terms and
    conditions of service prescribed in the relevant minutes in force at the
    time of the plaintiff’s promotion to the Executive Clerical Class, that
    power was unlawfully exercised when the Treasury Circular No. 560 was
    issued in December, 1961. The ground of this argument was that the
    Circular was issued for the purpose of the implementation of the Official
    Language Act, No. 33 of 1956. Referring to the terms of the Circular
    itself, and to those of a Cabinet memorandum containing directions as
    to the implementation of that Act, Counsel submitted that the Treasury
    Circular had to be issued under the compulsion of the A c t ; and, relying
    upon certain decisions in the United States, he further submitted that
    anything done under the compulsion of an invalid statute is itself invalid,
    despite the fact that what is done may be valid if done in the exercise of
    some ordinary contractual right or other power.
    These submissions regarding the Treasury Circular depend on Counsel’s
    other submission that the Official Language Act of 1956 was ultra vires
    on the ground that in enacting it Parliament transgressed the prohibitions
    against discrimination contained in Section 29 of the Constitution.
    Indeed the learned District Judge who heard the instant case has held
    the Act to be void on that ground. In considering whether this Court
    should now make any pronouncement as to the validity of the Act of 1956,
    I take note of the reluctance of the American and Indian Supreme Courts
    to make such pronouncements. The principle is thus expressed in Cooley,
    Constitutional Limitations (8th Ed. p. 332) :—
    “ It must be evident to anyone that the power to declare a Legislative
    Enactment void is one which the Judge, conscious of the fallibility
    of the human judgment, will shrink from exercising in any case where
    he can conscientiously and with due regard to duty and official oath
    decline the responsibility.”
    In Burton v. United S ta te s2 it was observed that “ It is not the habti
    of the Court to decide questions of a constitutional nature unless
    absolutely necessary to a decision of a case ”. Again, in S ilv e r v. L ouis
    Ville N . R . C o .3 the Court stated that if a case could be decided on one
    of two grounds, one involving a constitutional question, and the other a
    question of statutory construction or general law, the Court will decide
    only the latter.
    1 (1958) 60 N . L. R. 115. 3 196 V. S. Reports at p. 295.
    3 213 U. S. Reports at p. 191.
    Buyzer v. Ariyaratna 139
    In the instant case, it is not even clear whether the question of the
    compulsion of a statute does arise. I have already reached the
    conclusion that under our Law a public servant has no right to sue for his
    wages. Accordingly the plaintiff is not entitled to a remedy in the Courts
    for any alleged default in the payment to him of the increment, even
    if the relevant minutes and regulations had not been altered or modified
    by the Treasury Circular No. 560.
    The position of the Crown here is not that there was an alteration in
    the terms and conditions of service in consequence of which the plaintiff
    has become disentitled to the increment. The Crown’s position is that
    the plaintiff cannot sue for the payment of the increment, even if the
    minutes and regulations provide for such a payment. Since such in my
    opinion is the correct position in law, this Court should not now venture
    to rule upon the submissions as to the invalidity of the Language Act.
    As a note of caution I must say also that the ruling on that submission
    made by the learned District Judge in this case must not be regarded in
    any way as a binding decision.
    We did not call upon the learned Acting Attorney-General to submit
    his arguments on the question of the validity of the Language Act.
    Instead, at the close of the hearing of this appeal, I indicated my intention
    that if our findings on the other issues arising in this case necessitate
    consideration of that question, I would in exercise of my powers under
    Section 51 of the Courts Ordinance refer the question for the decision of
    a Bench of five or more Judges. That course is not now necessary;
    but I should here express the firm opinion that a question of such
    extraordinary importance and great difficulty, if and when it properly
    arises for decision, must receive consideration by a Bench constituted
    under Section 51.
    The judgment and decree of the District Court are set aside. I do not
    in the circumstances make any order as to the costs in the District Court,
    but the plaintiff must pay the costs of this appeal.
    G. P. A. Silv a, J.—I agree.
    Judgment and decree set aside.
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