PSC backdated Foreign Service minute without legal basis, SC rules

The Public Service Commission ( PSC) had acted without legal basis when it gave retrospective effect to the current service minute of the Sri Lanka Foreign Service ( SLFS), published i n the Government gazette of December 2016 but backdated to October 2015, the Supreme Court ( SC) has observed.

But the Court withheld making an order with regard to the validity of the minute as it would affect several appointments and promotions already implemented to the SLFS, “creating a controversy among the said officers”.

The remarks are held in a judgment by Justice Vijith K. Malalgoda, PC, dated June 21, 2022. It directs the State to pay senior SLFS Officer Chanaka Harsha Talpahewa Rs 250,000 in compensation and Rs 100,000 as costs for violation of his fundamental rights. Justices Murdu N. B. Fernando, PC, and S. Thurairaja, PC, agreed.

While the petitioner had not challenged the legality of the service minute based on which he was denied a promotion -- “as it would have created grave consequences in SLFS” -- it was made clear during proceedings that backdating the minute along with a failure to introduce transitional provisions pertaining to the change of the service requirement was ultra vires.

A service minute contains the rules and regulations of a particular Government service including promotions, qualifications salaries and allowances.

Mr Talphahewa petitioned the SC in 2017 citing as respondents two Secretaries to the Ministry of Foreign Affairs ( MFA), two Chairpersons and 16 PSC Members and the Attorney General.

The petitioner entered the SLFS as a Grade III officer in January 2000 through the open competitive exam. In January 2010, he was promoted to Grade II under the terms of the 2001 SLFS service minute.

The same minute requires an officer to have completed six years in the lower Grade for promotion from Grade II to Grade I. Additionally, a qualified Grade II officer must remain in that Grade until a position in Grade I falls vacant. And such vacancy must be filled in order of seniority from amongst eligible Grade II officers.

Whilst Mr Talpahewa was Director Middle East Africa Division of the MFA, he was offered an assignment at UN-Habitat in Colombo. At the time, he was eligible to be promoted to Grade I under the 2001 service minute.

In July 2016, Mr Talpahewa applied for a year’s no-pay leave to take up the said position. The MFA Secretary recommended it to the PSC stating he had completed 16 years of satisfactory service, earning all salary increments without previously having obtained no-pay leave. It was also recommended that he be released without loss of seniority.

The PSC approved Mr Talpahewa’s leave from 15 August 2016 to 14 August 2017 but did not immediately state whether this period would be considered as active service. But in May 2017, the PSC informed the MFA that this temporary release was not to be considered as part of active service under the Establishment Code and PSC regulations.

Mr Talpahewa appealed the PSC’s decision, to no avail. Whilst a decision with regards to his active service was pending, the PSC by gazette dated December 5, 2016, replaced the 2001 SLFS service minute backdating it to October 12, 2015. Among other things it increased the six years of satisfactory service requirement in Grade II to seven years.

Mr Talpahewa submitted to court that, when he applied for leave to accept the UN- Habitat offer, the Secretary MFA wrote to the PSC saying he had “completed sixteen years of satisfactory service and earned all the salary increments”.

However, after his leave was approved, and prior to finalization of a decision regarding the nature of leave, a new minute was introduced backdated to before his leave coming into effect. It raised the service requirement from six to seven years and mandated receipt of seven salary increments for graduation from Grade II to Grade I. On those grounds, he was now ineligible for promotion.

It was argued on his behalf that he had a “legitimate expectation” based on SLFS policy-- and given effect through the published criteria in the SLFS 2001 minute prevailing at the time--that he would be promoted to Grade I when a position fell vacant.

In his judgment, Justice Malalgoda said that the legality of retrospective subsidiary legislation has been decided by the SC on more than one occasion. This includes “Rathnakumara and Others versus the Postgraduate Institute of Medicine” where it was held that the subordinate legislation having retrospective effect is ultra vires unless the enabling legislation expressly or by necessary implication authorized the making of retrospective subordinate legislation.

The SC ruled that Mr Talpahewa’s fundamental rights had been violated. It directed that his period of approved leave be treated as active service until January 3, 2017, and/ or till he completed seven years of active service and drew seven salary increments in Grade II of SLFS. It held that he was entitled to promotion once his leave was converted to active service, provided he has fulfilled other requirements of the new service minute dated December 2016.

Saliya Pieris, PC, with Geeth Karunaratne, appeared for the petitioner. Senior State Counsel Avanthi Perera appeared for the respondents.