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PECORD OFFICE

Arference-

C.O.882/1

ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-

| COPYRIGHT PHOTOGRAPH-NỘI TO]

PUBLIC RECORD OFFICE, LONDON

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of the present Head of the Department who is approaching the age of retirement after much service in the tropics, partly in malarial.areas but, if you so wish, those instances can be brought to your notice confidentially..

12. You will thus see that the reasons urged by His Excellency the Governor in justification of his decision to go counter to the wishes of my Committee and so to place on the permanent and pensionable establishment two of the five Temporary European Engineers are based either (1) on a mistaken assumption that my Committee would replace them by Engineers of "untested ability and with no knowledge or experience of local conditions," or (2) on an inaccurate reading of the probable number of vacancies which would occur in the grade of Irrigation Engineers during

" which on my

submission propriety the next five years, or (3) on considerations of “ cannot bear examination, and which might be interpreted in Ceylon as an attempt to give special advantages to European Engineers.

13. These observations raise the fundamental issue whether His Excellency the Governor has in the circumstances of the present case, acted in conformity with the existing Constitution when he decided to disregard the unanimous advice of the Board of Ministers, my Committee and myself, and to give permanent pensionable employment to two European Engineers while we were prepared and able to secure the services of two qualified European Engineers with good local experience for a term of five years.

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14. Incidentally, an important question of procedure has also been raised. understood from the Honourable Mr. D. S. Senanayake that it was the practice for His Excellency the Governor to require a Minister to send a draft of any despatch relating to any subject which pertains to his duties and functions before the question was submitted to you for your decision. That this is a sound practice will be readily admitted on all hands. But on this occasion His Excellency made his representations to you without reference to me even before all outstanding points in the course of I protested against the discussion were elucidated and the question was settled by me. this procedure; and His Excellency's reply is that I have to use His Excellency's words--" overlooked the fact that the subject of the correspondence is the cadre of a department, and as such falls within the subjects and functions of the Financial Secretary," I would submit that this interpretation sought to be placed by His Excellency the Governor on the phrase "Cadres of Staffs "appearing in the Schedule referred to in paragraph 16 on page 6 of the Ceylon Government Manual of Procedure is against the spirit of the Constitution of Ceylon and violates the Roval Instructions to him. The phrase "Cadres of Staffs" must be interpreted in the light of the observations made by the Special Commission on whose recommendation the present Constitution was framed. That phrase is only a paraphrase of "Questions affecting " which appears in Appendix VI, page 185, strength of departmental establishments

of the Report of the Special Commission on the Constitution. This Appendix and the item in particular are referred to at page 70 of the main Report and are com- mented upon.

The Comments of the Commissioners are significant, and I quote them in extenso. They say:-

"We have also proposed that the Treasurer should be entrusted with the financial supervision of all Departments and their establishments, much on the lines of the Treasury in Great Britain. Instead therefore of being overshadowed by a Secretariat not bound to seek his advice, he will be in intimate touch with the financial aspect of all questions from their inception, and will be given an ample opportunity of expressing his opinion from the financial point of view in the initial stages of a proposal, in the intermediate stage at the Board of Ministers, He will be the Financial and in the final stage of discussion in the Council.

Adviser to the Government, with the status and authority of Minister, and so able to place before his colleagues all the material considerations to enable them to form a decision. We cannot doubt that the procedure which we contemplate will be conducive to efficacious action on his part, but we must repeat that the role which we have assigned to the Officers of the State is advisory rather than executive, and, though the position of the Treasurer is being strengthened to enable him to give advice as circumstances may demand, the responsibility for decision will lie with his elected colleagues and with the Members of Council.’ It is thus clear that it was the intention of the Commissioners to give the Financial from the financial point of view,” Secretary the right, to express his opinion only and to fix the responsibility for a decision on the Executive Committee, the Board of But His Excellency appears to be of the Ministers and, finally, the State Council,

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opinion that all aspects of all questions, financial and otherwise, connected with Cadres of Staffs are within the province of the Financial Secretary and that, as in this case,

the question of the adequacy or otherwise of the staff proposed by a Ministry to carry out the policy enunciated by it and the manner in which the staff should be recruited either on a permanent or on a temporary basis are matters which fall within the duties and functions of the Financial Secretary. I would submit that this is altogether an erroneous view and is based on a complete misreading of the Constitution. There can be no policy of any Ministry in regard to any Department under its charge which does not concern the staff of the Department. Such concern must be either in reference to a proposal to maintain the existing staff or in reference to a proposal to increase or decrease the staff. Is the Financial Secretary therefore entitled on the ground of "Cadres of Staffs "to raise the question that the staff proposed is inadequate or excessive to carry out the policy of the Ministry? Is this question a financial question? As I understand the Constitution of Ceylon and as far as I have been able to know the practice of the British Treasury as recorded even in such an elementary work as that of Sir Thomas L. Heath in his volume in the White- hall Series, the Treasury is entitled to express an opinion on the "Cadres of Staffs only in so far as any proposal affecting them imposes additional financial burden on it either immediately or at a later date. But in this instance, the proposals of my Ministry are intended and would in fact relieve the Treasury of the existing burden and reduce ultimately the cost of the permanent and pensionable establishments of the Island. This fact is not in dispute. Yet, His Excellency gives, by his interpretation, the right to the Financial Secretary to make his observations on the policy of any Ministry under cover that the "Cadres of Staffs" is a subject within his functions and duties. Such a right to borrow a phrase used by the Special (Donoughmore) Commission in another context-" would lead to the dictatorship of the Financial Secretary in the present Constitution. I have therefore to request your ruling under the provision of Section 33 (3) of the Ceylon (State Council) Order in Council, 1931 :-- Does the question of the Cadre of a Department apart from its financial aspect. fall within the First Schedule or the Second Schedule to the Ceylon (State Council) Order- in Council. 1931?

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15. I now turn to the main Constitutional question which I have raised in paragraph 13 of this communication. In the Royal Instructions issued to His Excellency the Governor, it is stated that it is His Majesty the King's desire to promote by the Ceylon (State Council) Order in Council, 1931, the devolution upon the inhabitants of Ceylon of responsibility for the management of the internal affairs of the Island.' It is also provided that the Governor shall give his most favourable consideration to the views expressed and to the advice tendered to him " by an Executive Committee and the Board of Ministers on any subject which falls within their powers and func- tions. My Committee in regard to the programme of work which it has in view had advised His Excellency that only the temporary services of two European Engineers would be required for the next five years. His Excellency has chosen to disregard that advice and has decided that two of five specified Temporary European My Engineers should be placed on the permanent and pensionable establishment. Committee has already-before His Excellency's despatch-made provision in the Estimates for 1933-34 for the salaries of two Temporary European Engineers in the grade of Irrigation Engineer. His Excellency's fears that no provision might be made for their salaries are not well founded; and while his request for your authority to use his reserve powers on a certain improbable contingency appears rather premature, it shows how readily and how easily such powers can be invoked.

16. I would therefore urge upon you that the disagreement between His Excel- lency and my Committee is not one which calls for the over-riding authority of the Governor by the use of his reserve powers. I have to request you to decide whether effect should not be given to the decision of my Committee, which has had the approval of the Board of Ministers, and that the services of two qualified European Engineers with local experience be obtained on the terms and conditions proposed by the Executive Committee for Agriculture and Lands.

17. I have already obtained the permission of His Excellency the Governor to use in the course of the debate on the Budget the correspondence that has passed between him and me on these matters. I shall be glad if you will grant me permission to have this communication, His Excellency the Governor's despatch No. 324, together with the annexures to it and your reply, if received in time, published as a Sessional Paper. If your reply is not received in time. it may be published as a separate Sessional Paper. It is desirable that the publication should take place before the