JAYAWARDENA v. DHARANI WIJAYATILAKE, SECRETARY, MINISTRY OF JUSTICE AND CONSTITUTIONAL AFFAIRS AND OTHERS| 2001 1SLR 32

The petitioner was an Inquirer into Sudden Deaths, Gampaha, appointed to that office by the then Minister of Justice by his letter dated 13.12.1993 for a period of 3 years from 01.12.1993. He complained that the 1st respondent (Secretary, Ministry of Justice) purported to cancel his appointment with effect from 31.05.1995 by a letter dated 26.5.1995 written by the Is1 respondent; that by another letter dated 26.5.1995 the l 31 respondent informed the 3rd respondent that the 2nd respondent (Minister of Justice) had appointed the 3rd respondent as the Inquirer into Sudden Deaths for the area, effective 01.06.1995. The petitioner alleged that the Is1 respondent had no power to cancel his appointment and that in any event the cancellation was without cause or inquiry and hence invalid; that the appointment of the 3rd respondent was also a nullity and that the respondents thereby infringed the petitioner’s rights under Article 12(1) of the Constitution. By a letter dated 13.12.1990 the petitioner was first appointed as Inquirer into Sudden Deaths by the Minister of Justice for 3 years from 01.12.1990 in terms of section 108 of the Code of Criminal Procedure Act. The notice calling for applications in 1990 gave the closing date for
applications as 02.04.1990 and stated that applications, inter alia, from employees of Goverment Departments and Co-operative establishments would not be entertained. As on 02.04.1990 the petitioner was a Cooperative Inspector but by a letter dated 17.03.1990 he had opted to retire in term s of PA. Circular No. 30 of 1990. By letter dated 14.05.1990 the petitioner’s retirement was approved with effect from 02.05.1990. The petitioner made this fact known to the Interview board on 15.05.1990. The board considered him eligible and recommended him as the
most suitable and placed the 3rd respondent as the second in order of merit. After the expiry of the 1990 appointment the Minister of Justice gave him the aforesaid second appointment for a further period of 3 years from 01.12.1993. The 3rd respondent did not attempt to challenge either the 1990 or the 1993 appointment by way of a fundamental rights application or otherwise and so the petitioner functioned as Inquirer without any legal challenge from December 1990 until May 1995. After the change of Government, the 3rd respondent wrote a letter dated 25.10.1994 to the 2nd respondent (new Minister of Justice) questioning the appointment of the petitioner on the ground that on 02.04.1990 the petitioner was not eligible for the post; further that his appointment was made at the behest of a powerful Member of Parliament. The petitioner also learnt that the 3rd respondent had been given an interview by the 2nd respondent. But the petitioner was not Informed of the allegations. As such, the petitioner by a letter dated 03.05.1995 requested the 2 nd respondent to grant him an Interview. There was no reply to that letter. But without any notice or reasons the 1st respondent purported to cancel the petitioner’s appointment and further informed the 3rd respondent that the 2nd respondent had appointed him as Inquirer Into Sudden Deaths
effective 01.06.1995. The l sl respondent produced with her affidavit a notification under Article 46(2) of the Constitution whereby, with effect from 01.12.1994 the 2nd respondent had delegated to the Deputy Minister of Justice, Inter alia, his powers and duties In respect of the appointment of Inquirers under section 108. The 1st respondent pleaded that the Deputy Minister determined that the petitioner’s appointment In the first Instance was wrong and directed that steps be taken to rectify the same by cancellation. This was not supported by the production of any minute or document from the official files. It was submitted that In view of the delegation it should be presumed that the appointment of the 3rd respondent was also made by the Deputy Minister. However, in view of Article 157 of the Constitution, the Deputy Solicitor General presented his case on the basis that the 2nd respondent
made the appointment.

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