PROPE PRTIES NOT BEING MADE RESPONDENTS. DISMISSAL OF A JUDGE BY JSC
Court of Appeal – CA/Writ/468/2021
Mohamed Ismail Wahabdeen v. Judicial Service Commission and Others
Date of Order: 28.05.2025
Coram: B. Sasi Mahendran, J. and M.C.B.S. Morais, J.
Summary:
The Petitioner, a former Magistrate, sought writs of certiorari and mandamus to quash the dismissal decision of the Judicial Service Commission (JSC) and to compel reinstatement. The court had earlier issued notice only to the 5th Respondent, the Secretary to the JSC. The preliminary objection was taken that the application was not maintainable, as the proper authority—the JSC—was neither made a party nor served notice. The Court held that, under the Constitution, the Secretary does not possess the power to reinstate a judicial officer. Consequently, granting the relief prayed for would be futile. The Court dismissed the application upholding the preliminary objection.
⚖️ Principle of Law Established in This Case:
Writs of certiorari and mandamus will not lie where the proper respondent is not before Court, and the relief prayed for cannot be lawfully granted in the absence of that authority. Further, writ relief will be denied if the outcome of granting such relief would be futile.
📚 Principles in Precedents Cited:
Ensen Trading & Industry (Pvt) Ltd. v. Mangala Samaraweera
Refusal of notice under Rule 3(4) of Court of Appeal (Appellate Procedure) Rules is a final order, not merely procedural.
Notice is issued only if a prima facie case is established.
Mendis, Fozie and Others v. Goonewardena (1978-79) 2 SLR 322
Quashing findings without effective restoration of rights results in futility; such relief will be denied.
Siddeek v. Jacolyn Seneviratne (1984) 1 SLR 83
Certiorari is a discretionary remedy. If the result would be futile, frustrating, or legally incorrect, the Court will not grant it.
N.L.D. Ariyaratne v. P.B.P.K. Weerasinghe SC Appeal No. 182/16
A mandamus cannot be issued against a public officer who has no statutory power to grant the relief; the proper party (Minister) must be before Court.
The King v. Revising Barrister for the Borough of Hanley (1912) 3 KB 518
Mandamus lies to correct non-performance of a public duty even if time has passed, but only if the duty is legally enforceable.
Credit Information Bureau v. Jafferjee & Jafferjee (Pvt) Ltd. (2005) 1 SLR 89
Lists essential preconditions for mandamus:
Legal right and legal duty must exist.
Duty must be public in nature.
Applicant must have legal standing.
No equally effective alternative remedy.
No issuance if result would be futile.
Janak Housing (Pvt) Ltd v. Urban Development Authority (2008) 2 SLR 302
Mandamus compels public legal duty where the applicant has a sufficient legal interest and the authority has refused to perform.
📌 Conclusion:
This case reinforces that proper parties must be made respondents in writ proceedings and that writ relief will be refused if the Court lacks jurisdiction over the effective authority, or if granting the relief would lead to futility or legal absurdity. This decision further solidifies the limits of writ jurisdiction, particularly in matters involving constitutional delegation of power under Articles 111D and 111H.
IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST
REPUBLIC OF SRI LANKA
In the matter of an application for writs in the nature of Writ of Certiorari and
Mandamus under and in terms of Article 140 of the Constitution of the
Democratic Socialist Republic of Sri Lanka.
Mohamed Ismail
Wahabdeen, 39A/1, O.P.P. Road,
Kalmunai - 12
Petitioner
CA /Writ /468 /2021 Vs.
1.
His Lordship Jayantha Jayasuriya,
Hon Chief Justice and Chairman, Judicial Services Commission,
Colombo 12.
2.
His Lordship Buwaneka Aluvihare,
Member, Judicial Services
Commission, Colombo 12.
3.
His Lordship Sisira de Abrew
(Retired), Ex-Member,
Judicial Service Commission, Colombo 12.
4.
His Lordship L.T.B. Dehideniya, Member,
Judicial Services Commission, Colombo 12.
5. The Secretary,
Judicial Service Commission, Colombo 12.
6.
Hon. Gihan Kulatunge, (Inquiry
Officer),
High Court Judge, Colombo.
Respondents
Before: B. Sasi Mahendran,
J.
M.C.B.S. Morais, J.
Counsels: Faisz
Musthapha, PC with N.M. Shaheid, Keerthi Thillekeratne, Bishran Iqbal and Zaid Ali for the Petitioner
Nerin Pulle,
A.S.G. with Tashya
Gajanayake, S.C. for the 5th Respondent
Argued On: 21.03.2025
Written 04.04.2025 (by the Petitioner) Submissions: 03.04.2025 (by the 5th Respondent) On
Order On: 28.05.2025 - B. Sasi Mahendran, J.
This order pertains to the preliminary objection raised by the 5th
Respondent on the maintainability of this
application.
The Petitioner filed this application by petition dated 11.10.2021, seeking
inter
alia a writ of certiorari to quash the decision of the Judicial
Service Commission
marked as P17 and a writ of mandamus compelling the
Judicial Service Commission to reinstate the Petitioner as a Judicial Officer.
The facts of this case are as follows:
The Judicial Service
Commission has received
a complaint dated 23.11.2017 by the Conservator General of Forests,
referring to an alleged judicial misconduct by the Petitioner with regard to
several interim orders issued by the Petitioner, who was serving as the Magistrate of the Magistrates’ Court of Pottuvil
in respect of
17 persons accused of having violated Section 6 of
the Forest Ordinance as amended by
Act No. 65 of 2009. Subsequent to the said complaint, the Commission conducted
a disciplinary inquiry, at the end of which the Petitioner was found guilty of 18 charges of misconduct.
Thereafter, by letter dated 27.07.2020 marked P17, such decision was
communicated by the 5th Respondent to the Petitioner, informing that the Petitioner is dismissed from judicial service
as a punishment for the said misconduct.
The Petitioner has preferred the present application against the said decision.
By order dated 08.08.2022, His Lordship Justice
Sobitha Rajakaruna, along with His Lordship Justice Ganepola, issued notice
only to the 5th Respondent.
For easy reference, an excerpt of the said order is reproduced below:
“In these circumstances, I am inclined to issue
formal notice of this case only to the 5th Respondent.
I have come to the said conclusion exercising my discretion after a careful consideration of the whole
matter and by reason
of the special circumstances of this case. This Court is of the view that apart from the Petitioner, hearing the
Attorney General who represents the Secretary to the JSC is
sufficient and efficacious in arriving at a final conclusion upon the questions
identified in this case for the best interest of justice.”
On 21.03.2025, when the matter
came up for argument before
us, the Counsel
for the 5th Respondent raised a preliminary objection with
regard to the maintainability of this application on the basis that it would be
futile.
The Court directed both parties to tender their written submissions on this matter.
Even though the Petitioner has a right of appeal
against the said order in terms of Article 128 (1) or 128 (2) of the Constitution, there is no indication whether
the Petitioner has exercised that right.
The impact of refusing to issue notice on the Respondents was considered by His
Lordship Arjuna Obeysekere J in Ensen
Trading & Industry
(Pvt) Limited v. Hon.
Mangala Samaraweera and others, CA/Writ/41/2019, decided on 01.04.2019 and held that;
“In terms of Rule 3(4),
the Court will consider the issuing of notices only after the application is
supported in open Court. The effect of Rule 3(4) is that Court will issue
formal notice only if Court is satisfied that the Petitioner has made out a 'prima
facie case'. The fact that notice is refused without proceeding to hear the Respondent,
does not mean that there has not been an adjudication of the
matter or that the matter has not been decided by a Court of Law. Thus, when
notice is refused in an application under Article 140, that is the Order of
this Court on the dispute placed before Court in the petition and it is a final
Order.”
The main objection taken by the Respondent is that
the only party on whom the notice was issued was the 5th Respondent,
who was the Secretary to the Judicial Service Commission; therefore, whether
such notice is sufficient to determine all issues in the case.
In light of this Court’s
decision to issue notice only against the 5th Respondent, it is our considered view that we are
unable to determine the legality of the impugned order
marked as P17 in the absence of the members of the Judicial Service Commission
before this Court who decided to terminate the service of the Petitioner. The
particular decision was not taken by the 5th
Respondent. Therefore, we are unable to consider that the order marked P17 is ultra vires.
We are mindful that the Petitioner has failed to
name the Judicial Service Commission as a party to this application. We are also mindful that the Petitioner in his petition seeks the
following reliefs:
a) “Issue Notice on the Respondents;
b)
Call for and examine the record
pertaining to the subject matter of this Application;
c)
Grant and issue a mandate in the
nature of a Writ of Certiorari quashing the decision of the Judicial Service Commission contained in the document
produced marked ‘P17’;
d)
Make an interim order directing
the 5th Respondent to
produce before Your Lordships Court the proceedings of the purported inquiry
held by the 6th Respondent and
the report/recommendations made by the 6th
Respondent
e)
Grant and issue a mandate in the nature of Writ of Certiorari quashing the report of the 6th Respondent
which is in possession of the
Judicial Service Commission
f)
Grant and issue a Writ of Mandamus compelling the Judicial Service Commission to reinstate the
Petitioner as a Judicial Officer.
g)
Grant and issue a Writ of Mandamus
compelling the Judicial Services Commission to grant the entitlements of a
Magistrate and/or pay back wages to the Petitioner until he is restored to service,
h)
Grant costs,
i)
And grant such other and further
reliefs that Your Lordships’ Court shall seem meet”
Although the members of the Judicial
Service Commission were named as parties
i.e. 1st to 4th Respondents, the Court refused to issue notice to them. This was not
challenged till now.
According to the prayer, one of the reliefs prayed
for by the Petitioner is to issue a writ of mandamus compelling the Judicial
Service Commission to reinstate the Petitioner
as a Judicial Officer.
However, the Court
has only issued notice to the 5th
Respondent, the Secretary to the Commission. In terms of Article
111D (1) of the Constitution, the Judicial Service Commission consists of the
Chief Justice and the 2 most senior Judges of the Supreme Court appointed by
the President.
“111 D (1) There
shall be a Judicial Service Commission (in this Chapter referred to as the
"Commission") consisting of the Chief Justice and the two most senior
Judges of the Supreme Court appointed by the President [subject to the approval of the Constitutional Council.)
(2)
Where the Chief Justice
and the two most senior
Judges of the Supreme
Court are Judges who have not had any judicial experience serving as a
Magistrate or a District Judge], the Commission shall consist of the Chief
Justice, the senior most Judge of the Supreme Court and the next most senior
Judge of such Court, who has had experience as [a Magistrate or a District
Judge].
(3) The Chief Justice shall be the Chairman of the Commission.]”
According to Article 111H (1) (b), it gives powers
to the Commission to appoint judicial officers and scheduled public officers.
Article 111H (4) gives authority to the
Commission to delegate its power to the Secretary to the Commission only to
make transfers in respect of scheduled public officers.
Article 111H (4) reads as follows:
“4. The Commission may by Order published in the
Gazette delegate to the Secretary to the Commission the power to make transfers
in respect of scheduled public officers, other
than transfers involving increase of salary,
or to make acting appointments in such cases and subject tosuch
limitations as may be specified in the Order.”
The term ‘scheduled public officers’ is interpreted
in Article 111M of the Constitution, which reads as follows:
“Scheduled public
officer” means the Registrar of the Supreme Court, the Registrar of the Court of Appeal,
the Registrar, Deputy Registrar or Assistant Registrar of the High Court
or any Court of First Instance, the Fiscal, the Deputy Fiscal of the Court of Appeal or High Court and any Court of First Instance, any public
officer employed in the Registry of the Supreme Court, Court of Appeal or High Court or any Court of First
Instance included in a category
specified in the Fifth Schedule or such other categories as may be specified by
Order made by the Minister in charge of the
subject of Justice and approved by Parliament and published in the Gazette.”
It is clear that the Constitution does not provide
any delegation of power to the Secretary to appoint a Judicial Officer.
Our Courts
have held that writs will not be issued if it would
be futile.
In Mendis, Fozie, and Others Vs. Goonewardena
(1978-1979) 2 SLR 322, His Lordship Vythialingam J held that:
“It is true that
the quashing of the findings
will not restore the civic rights to the persons affected.”
In Siddeek Vs. Jacolyn Seneviratne (1984) 1 SLR 83 at page 90, His Lordship
Soza J held that:
“It is necessary at this stage to bear in mind that certiorari is a discretionary remedy – see Wade: “Administrative Law” 5th Ed. (1982) pp. 546, 591. As de Smith says in his work “Judicial Review of
Administrative Action” 4th Ed. (1980) p.404:
“Thus, certiorari is a discretionary remedy and may
be withheld if the conduct of the applicant, or, it would seem, the
nature of the error does not justify judicial
intervention.”
The Court will have regard to the special
circumstances of the case before issuing a writ of certiorari. The writ of
certiorari clearly will not issue where the end result will be futility, frustration, injustice and illegality. Accordingly I uphold the order
of the Court of Appeal refusing the appellant’s
application for the issue of a writ of certiorari and dismiss this appeal with costs payable by the
appellant to the 4th respondent.”
In N.L.D. Ariyaratne v. P.B.P.K. Weerasinghe and
Others, SC Appeal No. 182/16, Decided on 29.06.2017, Her Ladyship S. Eva Wanasundera PCJ. Held that:
“I observe that the primary relief sought in the
Application before the Court of Appeal was for a writ of Mandamus to recommence
the Arbitration de novo with a new Arbitrator. To recommence the proceedings,
the Commissioner has no power under the provisions of the Industrial Disputes
Act. It has to go through the hands of the Minister because it is the Minister
who has the power to appoint an Arbitrator. The Application before the Court of Appeal was to grant a writ of
Mandamus on the Commissioner of Labour. If Court grants a writ of mandamus
directing him to recommence the proceedings, that would be
futile since he cannot act in commencing the fresh arbitration without
power conferred on him by
any of the provisions of the Act. The Court can issue a writ of mandamus
only to the Minister to recommence arbitration proceedings afresh. When the
Minister is not a party to the case, granting a mandate in the nature
of a writ of mandamus to the Commissioner of Labour is
legally incorrect. So, the workman Petitioner’s application before court
was improper without
the Minister as a party. The relief is wrongly set down
in the prayer. No writ will be issued by
Court to result in futility.”
The main relief sought by the Petitioner is to
compel the Judicial Service Commission to reinstate the Petitioner. But he has
failed to name the Judicial Service Commission as a party. The Court
has issued notice
only to the Secretary, who is not a member of the Commission. Under the Constitution, the Commission could only delegate the power to appoint scheduled officers. The question
arises whether the 5th Respondent has a legal duty to reinstate the
Petitioner.
The
following judicial pronouncements lay down the concept
of writ of mandamus.
In The
King v. Revising Barrister for the Borough of Hanley., The King v. The Town Clerk of
Stoke on Trent, (1912) 3 KB 518 at 531, Channell J.
“Those being the facts
which I assume, a question of some difficulty
arises as to whether that mistake can be set right. In my opinion it can, under
a doctrine of this Court, which is an extremely useful one, and which was
established by a majority of the judges
in the Court of Exchequer
Chamber in Mayor of Rochester v. Reg. (1) The principle laid down in that case is well
established and has to my knowledge
been acted upon frequently. The principle is that a mandamus
will lie to compel the performance of a public duty by a public officer although
the time prescribed by statute for the performance of it has passed; and if the public officer
to whom belongs the
performance of that duty has in the meantime quitted his office and been succeeded by another
person, the writ may be directed to the successor, and it is his duty to obey it; and where there is no successor, but the person
who ought to have performed the duty has become functus
officio, the latter may
be ordered to perform it, though the time within which he could of his own motion have performed it has passed.
It is a most useful
jurisdiction which enables
this Court to set right mistakes. That principle, it seems to me, is applicable
to the present case, and it is applicable not only to the non- performance of duties which the person who ought to have performed them has
refused upon demand to perform, but also to cases where the non- performance arises
from mere inadvertence, where he cannot
have had his attention directed to the
matter and cannot have refused upon demand to perform them. The requirement that before the Court will
issue a mandamus there must be a demand to perform the act sought to be
enforced and a refusal to perform it is a very useful one,
but it cannot be applicable in all possible cases. Obviously it cannot apply where a person
has by inadvertence omitted
to do some act which he was under a duty to do and where the time within
which he can do it has passed.” (Emphasis added)
In Credit Information Bureau of Sri Lanka v. Messrs
Jafferjee and Jafferjee (Pvt) Ltd, 2005 (1) SLR 89, His Lordship De Silva, J;
“The judicial control over the
fast-expanding maze of bodies affecting rights of the people should not be put
into watertight compartments. It should remain
flexible to meet the requirements of variable circumstances.
There is rich and profuse case law on
mandamus on the conditions precedent
to the issue of mandamus appear to be:
(a) The applicant must
have a
legal right to the performance of a legal duty by the parties
against whom the mandamus is sought (R. v Barnstaple Justices exp. Carder.
The foundation of mandamus is the
existence of a legal right (Napier ex parte).
(b)
The right to be
enforced must be a "Public Right" and the duty sought to be enforced
must be of a public nature.
(c) The legal right to compel
must reside in the applicant
himself (R. v Lewisham Union)
(d) The
application must be made in good faith and not for an indirect purpose.
(e)
The application must
be preceded by a distinct demand for the performance of the duty.
(f)
The person or body
to whom the writ is directed must be subject to the jurisdiction
of the court issuing the writ.
(g)
The Court will as a
general rule and in the exercise of its discretion
refuse writ of mandamus when there is another special remedy available which is
not less convenient, beneficial and effective.
(h) The conduct of the applicant
may disentitle him to the remedy,
(i) It would not be issued
if the writ would be futile in its result.
(j)
Writ will not be
issued where the respondent has no power to perform the act sought to be
mandated.
The above principles governing the issue of a writ of mandamus were also
discussed at length in PK. Benarji v
H.J.
Simonds. Whether the facts show the existence of any or all
pre-requisites to the granting of the writ is a question of law in each case to be decided not in any rigid or technical view of the question, but
according to a sound and reasonable interpretation. The court will not grant a mandamus to enforce a right not of a legal but of a
purely equitable nature however extreme the inconvenience
to which the applicant might be put." (Emphases added).”
In Janak Housing (Pvt) Ltd. and Another v. Urban
Development Authority, 2008 2 SLR 302 at page 304, His Lordship S.
Sriskandarajah, J. held that;
J. agreeing held;
"The general
rule of mandamus is that its function is to compel a public authority to do its
duty. The essence of mandamus is that it is a
command issued by the Superior Court for the performance of public legal duty.
Where officials have a public duty to perform and have refused to perform,
mandamus will lie to secure the performance
of the public duty, in the performance of which the applicant has sufficient
legal interest. "
In the instant case, there is no legal duty owed by the 5th Respondent to the Petitioner. When there is no legal duty, the Court has no power to issue a writ of mandamus as prayed by the Petitioner to reinstate the Petitioner as a Judicial Officer. Further, we note that the 5th Respondent is not a member of the Judicial Service Commission. Therefore, this Court is of the view that issuance of the writ of mandamus as prayed by the Petitioner, in these circumstances, would be futile.
We uphold the preliminary objection raised by the 5th Respondent and dismiss the action accordingly - JUDGE OF THE COURT OF APPEAL - M.C.B.S. Morais, J. I AGREE JUDGE OF THE COURT OF APPEAL
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