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LHBLIC PECORD OFFICE

Peference

།།།།ཀ wwwm C.O.882/12

PUBLIC RECORD OFFICE, LONDON

ALLY WITHOUT PERMISSION OF THE BF REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOI 10|

in which, had it been in my power to do so, I should have felt myself entitled to allow considerations of equity to have influenced me into taking the long rather than the short view of the financal aspect.

.4. The point which I wish to make clear, however, is that, apart from the merits of each case and the necessity for taking into consideration the two factors referred to above, the final decision as to whether an officer on agreement should be offered a post on the permanent establishment can no longer be said to rest with the Governor. Even under the old Constitution the existence of an unofficial majority made it quite possible for the Legislature to refuse to make the financial In connexion with the provision necessary to enable such an offer to be made. Estimates for 1930-31 the Legislative Council refused to pass the provision for personal emoluments in the Electrical Department until they had received an assurance that no agreement would be renewed for a longer period than one year without their consent being first obtained.

5. Under the new Constitution it is true that the power to make appointments But the making of an appointment is is specifically reserved to the Governor. necessarily contingent upon the inclusion in the estimates of provision for the salary of that appointment, and the estimates are no longer prepared under the instructions of the Governor; nor do I consider that it would be practical politics, even if it were legally possible, to make use of Article 22 of the Order in Council in order to secure the provision of the salary of an appointment which had been made by the Governor in defiance of the wishes of the Board of Ministers or of the Executive Committee con- cerned. In practice, therefore, the Governor has no longer the power to decide He can only decide who should be whether an appointment should be made. appointed, and even in this regard the possibility exists that, should he appoint an officer other than the person approved by the Executive Committee concerned, the salary of the post may be cut out of the Estimates.

6. When the question arises as to the appointment to the permanent staff of an officer serving on agreement, both the Board of Ministers and the Executive Committee concerned are consulted. It is not necessary, under the Constitution, to consult the Board of Ministers, but I have considered it necessary to permit the Financial Secretary to give an undertaking that no officer serving on an agreement in a non-pensionable post carrying a salary exceeding Rs. 3,200/- per annum would be re-employed after As the responsibility for. the expiry of his agreement without such consultation. presenting the Estimates, and for including therein the necessary salary provision rests with the Board of Ministers, such an undertaking seemed to me only reasonable. If the Board of Ministers decide that the post should not be continued it is obvions that the Governor must accept this decision, since. as I have already pointed out, it is impossible for him, without the co-operation of the Board of Ministers, to secure the provision of the necessary funds.

7. Consultation with the Executive Committee concerned is necessitated by Public Service Regulations 9 and 13. as the expiration of an agreement has been held by the Public Services Commission (in my opinion correctly) to amount to the occurrence of a vacancy.

The Executive Committee may advise-

(a) that the vacancy should be left unfilled;

(b) that the salary should be reduced:

(c) that the agreement be extended for a period shorter than that recommended

by the Head of the Department;

(d) that, where the Head of the Department has recommended appointment

to the permanent staff, an extension of agreement be offered.

In all these cases (of which there have already been instances) it seems to me that it is impossible for the Governor to refuse to accept the advice of the Executive Committee. I admit that, under the Royal Instructions, it is constitutionally possible for him to do so. But the control over the purse exercised by the State Council makes it, in practice, impossibie

S. Even when the Board of Ministers and the Executive Committee concerned have agreed to the retention of the services of an officer after expiry of his term of agreement, it is possible for the State Council to step in. In this connexion I would invite attention to my Confidential despatch of 4th January, 1932,* regarding the case of Mr. C. J. M. Hunter. As you will remember, Mr. Hunter's agreement had

* No. 44.

been extended with the approval of the Executive Committee and the Board of Ministers had included the necessary provision in the estimates. The State Council, however, insisted on Mr. Hunter being given three months' notice, and reduced the provision in the estimates accordingly.

9. I have, I hope, made it clear that the decision as to whether the principles laid down in Lord Passfield's despatch should be applied in any particular case, though nominally in the hands of the Governor, is actually in the hands of the Executive Committee concerned, the Board of Ministers, and the State Council. This being so, it must be realized that there is no guarantee that any claim other than one which is legally enforceable can be recognized. I do not wish to imply that in the past Unofficial Members of the Legislative or State Councils have, in general, been slow to recognize moral obligations. They have frequently been quite ready to recognize such obligations. Nevertheless there have been instances in the past and, owing to the existence of the two factors mentioned in the second paragraph in this despatch, there will undoubtedly be instances in the future, in which the narrow legal view will be taken, and officers with reasonable expectations of permanent employment will be disappointed in those expectations.

10. It is obviously of great importance that the hitherto high reputation of the Colonial Office and Colonial Governments generally in matters of this nature should be maintained. It seems to me essential therefore that, in the case of future appoint- ments on agreement to pensionable posts in Ceylon (or to posts which may reason- ably be regarded as of a permanent nature) the greatest care should be exercised not I should to hold out hopes of the non-fulfilment of which the slightest risk exists. be glad therefore, if, in future, candidates for appointments on agreement in Ceylon could be clearly informed that their appointments are strictly in terms of their written agreements, and that the Government cannot, under the present Constitution, be bound by any practice customary elsewhere, or hitherto customary in Ceylon. which goes beyond such terms

I have, &c..

GRAEME THOMSON,

(2) Reduction of Salaries and Allowances.

C. 93105/32 [No. 1].

No. 3

THE GOVERNOR to THE SECRETARY OF STATE. (Received 3.33 p.m., 26th July, 1932.)

TELEGRAM.

[Answered by No. 10.]

Governor.

26TH JULY. No. 170. Confidential. Draft Budget for the financial year Surplus balance will be practically 1932-33 shows deficit of rupees 6,655.000. exhausted on the 1st October next. Ministers propose the following measures to meet the deficit. Reduction of rupees 2,000,000 in expenditure on pensions by suspension of the right of partial commutation. Reduction of rupees 50,000 in expenditure on leave passages by increasing the qualifying period from four years to five years. Reduction of expenditure on railways, holiday warrants by reducing the grant from three sets annually to one set Transfer to General Revenue of rupees 3,300,000 expected to be at credit of Railway Renewal Fund and Colombo Electricity Supply Depreciation Fund on the 1st October next. Diversion to General Revenue of contri- butions to these Funds amounting to rupees 1,100,000 which would ordinarily be made in 1932-33 out of gross receipts of the Railway and Colombo Electricity Supply. Ministers have requested me to obtain before Appropriation Bill is introduced into the State Council your approval of such of these proposals as require your approval. Under Article 87 of Order in Council my sanction and your approval are required for adoption of the first three proposals. The first proposal which I assume has not been adopted in any other part of the Empire is justified by Ministers on the ground that the late Legislative Council approved partial commutation of pensions when the financial situation was satisfactory and before premature retirement under Order in Council was

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