(1) KARAVITA AND OTHERS AND (2) WELIKANNA v. INSPECTOR -GENERAL OF POLICE

040-SLLR-SLLR-2002-V-2-1-KARAVITA-AND-OTHERS-AND-2-WELIKANNA-v.-INSPECTOR-GENERAL-OF-POLICE-.pdf


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Karavita and Others and Welikanna v.
Inspector-General of Police and Others
287
KARAVITA AND OTHERSAND
WELIKANNA
v.INSPECTOR-GENERAL OF POLICE AND OTHERS
COURT OF APPEALAMARATUNGA, J.
CA NO. 736/2000CA NO. 907/2000JUNE 27. 2001FEBRUARY 21. 2002
Writ of Mandamus – Public Sevice Commission – Promotion of Police Officers- Selection process – Performance of public duty – Public authorities – ConstitutionArticles 55 (1) and 140 – Pleasure principle – Applicability – Courts competenceto issue a Writ of Mandamus compelling the appointment of a person to aparticular post or office.
The petitioners seek writs of Mandamus directing the PSC, to promote thepetitioners to the rank of ASP and also to direct the IGP and Secretary Defenceto give effect to such appointments.
Held:
The PSC is a body established by the Constitution. In making appointmentsto the rank of ASP the PSC is under a legal duty to make such appointmentson the basis of selections made in accordance with the laid down selectionprocess. When the PSC makes appointments to the rank of ASP it is undera duty to make such appointments on a basis which is reasonable.
Within the field of Public Law, the scope of Madamus is still wide andthe Court may use it freely to prevent breach of duty and injustice.
Per Amaratunga, J.
“The absence of precedent does not deter me when I am convinced thatthe only effective remedy to remedy the injustice caused to the petitionersis an order of Mandamus."
APPLICATION for Writs of Mandamus.
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[2002] 2 Sri L.R.
Cases referrred to :
Migultenne v. Attorney-General – (1996) 1 Sri LR 408.
Jayawardena v. Dharani Wijetilake and Others – (2001) 1 Sri LR 132at 159.
ft. v. Hanley Revising Barrister – (1912) 3 KB 518 at 529.
Chief Constable of North Wales Police v. Evans – (1982) 2 All ER 1?i.
Faiz Musthapha, PC with Abdul Najeem for the petitioners in both applications.Y. J. W. Wijetilake, OSG for the respondents in both applications.
Cur. adv. vult.
April 30, 2002
GAMINI AMARATUNGA, J.
These two applications are applications for Mandates in the nature 1of Writs of Mandamus directing the Chairman, Public ServiceCommission and six other members of the Commission (9th to 10threspondents) to promote the petitioners to the rank of AssistantSuperintendent of Police and also to direct the Inspector-General ofPolice (1st respondent) and the Secretary to the Ministry of Defence(2nd respondent) to give effect to such appointments. Since bothapplications relate to the same matter and since respondents to bothapplications are the same, both applications were consolidated andheard together and parties agreed to abide by one judgment pronounced 10in respect of both cases.
These two applications were heard by me and His LordshipsJustice J. A. N. de Silva before his Lordship’s elevation to the SupremeCourt and the parties thereafter agreed that this matter could bedecided by me sitting alone on the submissions already made.
Petitioners No. 4, 5, 6, 10 and 11 in application No. 736/2000 areholders of the rank of Chief Inspectors of Police in the Police Department.Others hold the rank of Inspectors of Police. The petitioner in applicationNo. 907/2000 is an Inspector of Police.
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Karavita and Others and Welikanna v.
Inspector-General of Police and Others (Amaratunga, J.)
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The scheme of recruitment and promotions of Senior Gazetted 20Officers of the Department has been approved by the Cabinet ofMinisters on 05. 08. 1998. (P1) In terms of this scheme appointmentsto the post of Assistant Superintendent of Police are made in threeways. What is relevant to the present petitioners is the 2nd categoryaccording to which “25% of the vacancies will be filled on the resultsof a limited competitive examination from among Chief Inspectorsof Police and Inspectors of Police with 10 years1 service”.
Upon the directions of the Public Service Commission, the Inspector-General of Police by circular dated 03.09.1998 (P2) invited applicationsfrom Chief Inspectors and Inspectors who were eligible for promotion 3°to the rank of Assistant Superintendent of Police (ASP) through alimited competitive examination. The petitioners who possessed therequisite qualifications applied and sat for the limited competitiveexamination conducted by the 3rd respondent, the Commissioner-General of Examinations. The examination was conducted in respectof the following subjects :
Language Ability (essayandprecis)150marks
General Knowledge andIntelligence150
Social, Political and Economic
Development of Sri Lanka100
Practical Police Methods100
Police Administration100”
According to the scheme of recruitment and promotion, theprospective candidates had to face an interview in addition to thewritten examination. For the written examination 75% of the markswere allocated and the balance 25% for the interview. To quality forthe interview a candidate had to get a minimum of 40% marks atthe written examination.
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Thereafter, in March, 1999, 72 candidates including the petitionerswere called for interviews. The results of the examination and theinterview were given in the marks sheet produced by the petitionersmarked P5. On 25. 06. 1999 the Public Service Commission (PSC)has ordered the appointments of the first 14 candidates whose namesand marks appear in P5 to the rank of ASP. Then the 3rd, 5th, 6th,10th and 11th petitioners in CA Application No. 736/2000 andthe petitioner in application No. 907/2000 made applicationNos. 607/99 and No. 608/99 to the Supreme Court for allegedinfringement of their fundamental rights. Those applications wereconsolidated and heard together by the Supreme Court. It appearsthat the complaint of those who filed applications in the Supreme Courtwas that 32 persons who had scored less than 40% of the marksat the limited competitive examination had been called for the interviewand the appointments of 14th to 24th respondents to the SupremeCourt applications (11 officers among the first 14 candidatespromoted to the rank of ASP) has resulted in the infringement of theirfundamental rights.
The first two papers of the limited competitive examination wereto be given marks out of 150 and others out of 100. However, itappeared from the affidavit filed by the Commissioner-General ofExaminations, who was the 3rd respondent to those applications, thatalthough the aforesaid two papers were marked out of 150 the saidmarks were converted to a percentage in accordance with the prevailingpractice in the Department of Examinations and that the practice hadbeen adopted in respect of all candidates and accordingly none ofthe candidates who had secured less than 40% of the markshad been called for the interview. Therefore, the Supreme Court heldthat :
“The practice adopted by Commissioner of Examinations toconvert the marks obtained by the candidates out of 150 for thefirst two subjects to percentage to ensure uniformity has not causedany prejudice to anv of the candidates and cannot be faulted as
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Karavita and Others and Welikanna v.
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that was the practice that prevailed in the Department of
Examinations”. (emphasis added).
The petitioners heavily relied on the above finding of the SupremeCourt that the practice adopted by the Commissioner-General ofExaminations to convert marks obtained out of 150 to percentage toensure uniformity has not caused anv prejudice to any of the candidates.
For this reason and for the other reasons (which are not relevant tothe present purpose) set out in the judgment, the Supreme Courtdismissed the fundamental rights applications on 12. 01. 2000 90(SC Minutes of 12. 01. 2000).
The petitioners have stated in their applications that whilst thefundamental rights applications were pending in the Supreme Court,another officer who sat for the same examination and faced theinterview for promotion to the rank of ASP filed application in the Courtof Appeal (CA Application No. 1164/99) seeking mandates in thenature of Writs of Certiorari and Mandamus on the basis that the saidpractice of pro-rating of marks was arbitrary and in excess of thepowers of the 3rd respondent Commissioner-General of Examinations.The Officer who filed Application No. 1164/99, H. K. D. W. M. P. B. 100Ratnatilake who has obtained a total of 320.6 marks was placedin the 20th position in the marks list marked P5. Whilst the Writapplication of Ratnatileke was pending in the Court of Appeal the PSCby its letter dated 25. 04. 2000 ordered the appointment of three othercandidates to the rank of ASP. The particulars relevant to them, asthey appear in the marks sheet P5 are as follows :
Serial No.NameTotal Marks
20
29
39
K. D. W. M. P. B. RatnatilakeB. D. ChandrasiriN. Moses
320.6
315.8
310.2
110
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The petitioners in Application No. 736/2000 in the order their namesappear in the caption of the application have secured the followingplaces in the marks sheet P5 in order of merit.
NameSerialNo.Total Marks
Karavita15328
Jamaldeen16324.4
Ranaweera17'323
Lai Kumara18321.8
Baddewela19321.2
Samarasekara22319
Karunanayake25317.2
Palitha Fernando26316.8
Mahagedara31315.6
Dayananda34314.2
Ellepola36312.8
Gajasinghe37310.8
120
This shows that Rantatileke was below the first five petitioners.Chandrasiri was below the first eight petitioners. Moses was belowall 12 petitioners. Petitioner in Application No. 907/2000 Welikannawho is in the 24th position having obtained 317.4 marks is above 130Chandrasiri and Moses The promotions of Rantnatileka, Chandrasiriand Moses were given on 25. 04. 2000, three months after theSupreme Court delivered its judgment in the fundamental rights case.
It appears from what has been set out above that Ratnatileke andChandrasiri have been promoted over some of the petitioners whohave scored more marks than them and Moses has been promotedabove all petitioners in application Nos. 736 and 907 who have scoredhigher marks than him.
The 4th respondent, the Chairman of the PSC, by his affidavit seeksto explain the basis on which Ratnatileke was promoted. The 4th 140
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respondent in paragraph 6 of this affidavit has stated that “I statethat the finding of the Supreme Court in the said applications(SC Nos. 607/99 and 608/99) was that the petitioners in the saidapplication has not been prejudiced by the practice followed by theDepartment of Examinations”. This averment does not correctly setout the finding of the Supreme Court, this is what the Supreme courthas held.
"In my view this practice adopted by the Commissioner ofExaminations to convert the marks obtained by the candidates out 150of 150 for the first two subjects to a percentage to ensure uniformityhas not caused prejudice to anv of the candidates and cannot befaulted as that was the practice that had prevailed in the Departmentof Examinations.” (per Gunasekara, J.) (emphasis added).
The above passage form the judgment of the Supreme Courtclearly shows that the finding of the Supreme Court was not confinedto the petitioners of the applications that were before the SupremeCourt. The finding of the Supreme Court was that the conversion ofthe marks has not caused prejudice to anv of the candidates. Thisincludes the petitioners as well as those candidates who sat for 160the same limited competitive examination. The Chairman and themembers of the Public Service Commission were respondents to theaforesaid fundamental rights applications and the PSC as a body isbound by the ruling of the Supreme Court and as such they cannot. in law act on the basis that notwithstanding the definite finding of theSupreme Court they are free to review cases of individual candidatesand decide for themselves whether a particular candidate has beenprejudiced by the conversion. It appears from the rest of the avermentsof the 4th respondent’s affidavit that this exactly was what the PSC 170has done.
The 4th respondent in paragraph 8 of his affidavit admits that theorder to promote 14 officers to the rank of ASP was given accordingto the marks sheet prepared by the Commissioner-General of
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Examinations marked P5. It was presented to the Supreme Court asthe correct marks sheet and the Supreme Court having taken intoconsideration the affidavit of the Commissioner-General of Examinationsheld that by the conversion set out in it no candidate has beenprejudiced. The 4th respondent’s affidavit goes on to say that the saidmarks sheet P5 was altered by the amended marks sheet ‘referredby the Commissioner-General of Examinations’. The amended marks isosheet has been produced marked 4R1. It is dated 16. 02. 2000, whichdate is subsequent to the judgment of the Supreme Court in thefundamental rights cases. Several questions arise in view of theaforesaid averment. What was the necessity to amend the markssheet tendered to the Supreme Court? Were there mistakes in P5and if so what were those mistakes and how did such mistakes occur?Who detected those mistakes and who requested or authorized thepreparation of an amended marks sheet? I cannot find answers toany of the above questions in the affidavit of the 4th respondent. TheCommissioner-General of Examinations is a respondent to these 190applications but he has not filed an affidavit setting out the reasonsfor and the basis on which he prepared the amended marks sheetR41. In the absense of any explanation from the Commissioner-General of Examinations, Chairman of the Public Service Commissionor from the Inspector-General of Police the reason for the preparationof the amended marks sheet remains a mystery as far as this Courtand these applications are concerned.
It appears from P8 submitted by petitioner Samarasekara withhis counter affidavit that the promotions of Ratantileke, Chandrasiriand Moses were ordered on the basis of the amended marks sheet 200marked 4R1. Ratnatileke who was No. 20 in P5 has become No. 14in amended marks sheet. Chandrasiri who was No. 29 in P5 hasbecome No. 16 in the amended list. Moses who was No. 39 in P5has become No. 15 in the amended marks sheet. With their positionstheir total number of marks has also changed upwards. No one hasexplained to this Court how and on what basis those changes havebeen made. It is also to be noted that the first 14 officers promoted
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Inspector-General of Police and Others (Amaratunga, J.)
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in June, 1999, on the basis of their positions in the original markssheet P5 remain even in P41 within the first 17 officers promotedto the rank of ASP.210
However, the positions of most of the petitioners have substantiallychanged in the amended marks sheet. The following table shows howtheir positions were changed :
NamePosition under P5 Position under 4R1
Karavita1525
Jamaldeen1631
Ranaweera1727
La! Kumar1828
Baddewela1932
Samarasekara2218
Karunanayake2520
Palitha Fernando2629
Mahagedara3119
Dayananda3448
Ellepola3647
Gajasinghe3735
Welikanna (907/2000)2423
This table shows that except 6th, 7th, 9th and 12th petitioners andthe petitioner in No. 907/2000 the others were reduced to positionslower than the positions they had under the original marks sheet P5. 230The respondents have not explained the basis on which thosechanges have been made.
The 4th respondent in his affidavit (paragraph 9) has stated thatconsequent to the filing of the Writ application No. 1164/99 it wasevident that prejudice has been caused to the petitioner resulting inthe steps taken as suggested by this Court to afford administrativerelief. However, the 4th respondent has not stated in what way
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prejudice has been caused to the petitioner in CA ApplicationNo. 1164/99. In paragraph 10 of the 4th respondent’s affidavit it isstated that the practice adopted by the Examinations Department onwhich the petitioners rely for promotion was incorrect and cannot belegally or fairly given effect to. I cannot see how the 4th respondentcan say this when the Supreme Court has accepted that practice asthe prevailing practice followed by the Department of Examinations.The members of the Public Service Commission who were respondentsto the Supreme Court applications are bound as a body by the rulingof the Supreme Court and if they act contrary to the finding of theSupreme Court such act is an arbitrary act without any legal basis.The 4th respondent has also failed to explain the reason why thePSC ordered the appointments of Chandrasiri and Moses to thesupernumerary cadre.
The respondents have failed to establish the validity of the amendedmarks sheet 4R1 as against the original marks sheet accepted bythe Supreme Court as correct marks sheet (and also by the PSCby appointing 14 ASPP on the basis of P5) and as such the respondentmembers of the PSC are under a duty to order promotions on thebasis of the results reflected in P5. By promoting a person who hasobtained less marks than all petitioners in these two applications theyhave failed to perform their duty according to law and have failedto adhere to the results reflected in P5.
In the written submissions filed on behalf of the respondents aquestion has been raised as to whether public servants have a rightto receive promotions. The petitioners responded to a circular issuedby the 1st respondent calling for applications from eligible officers tobe promoted to the rank of ASP in accordance with the approvedscheme. They obtained the necessary marks at the written examinationto qualify for the interview. They faced the interview and obtainedmarks which were taken into account in deciding the total marks tobe awarded to them. After the completion of the selection processif the authorities decided not to promote anyone, the petitioners or
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others whose names are set out in the marks sheet P5 did notordinarily have a right to demand that they should be promoted.
However, in this case on the results of the selection process 14officers were promoted to the rank of ASP. Thereafter, another personwho has obtained less marks than all 13 petitioners was promotedon the basis of an amended marks sheet the validity of which therespondents have failed to prove. With this appointment, the petitionerswho have higher marks than the last appointee acquired a right tobe promoted on the same results on which 14 others promoted earlier.
The respondents cannot also invoke the pleasure principle embodied 28oin Article 55 (1) of the Constitution as an answer to the petitioners’plea for a Writ of Mandamus. As was pointed out by his LordshipJustice Fernando in Migultenne v. The Attorney-General(,) the pleasureprinciple does not give an absolute discretion to the executive. It issubject to the other provisions of the Constitution such as thefundamental rights and the Writ jurisdiction of the Court of Appealunder Article 140 of the Constitution. It cannot be used to shield anact which has no basis in – law or in fact.
Now, I turn to the relief sought by the petitioners. They have soughta Writ of Mandamus directing the 4th to 10th respondents to promote 290and appoint them to the rank of ASP in the Police Department andto direct the 1st and 2nd respondents to give effect to such appointments.
The first question .to be decided to whether this Court has thepower in law to issue Writ of Mandamus compelling the PSC to appointor promote a particualr person to a particular office or post. The Writof Mandamus is the normal means of enforcing the performance ofpublic duties by public authorities. “It is normally granted on theapplication of a private litigant” and “the commonest employment ofMandamus is as a weapon in the hands of the ordinary citizen, whena public authority fails to do its duty by him.” Wade, Administrative 300Law, 8th edition, p 604. Is there a failure by a public authority doits duty by the petitioners?
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Public Service Commission is a body established by the Constitution.
In terms of Article 55 (3) of the Constitution it exercises powers ofappointment, transfer, dismissal and disciplinary control of public servantsdelegated to it by the Cabinet of Ministers. The schemes of recruitmentand promotions of senior Gazetted officers of the Police Departmenthave been approved by the Cabinet. Under this scheme there is aselection process to select officers for appointments to the rank ofASP, in the Police Department. In making appointments to the rank 310of ASP the PSC is under a legal duty to make such appointmentson the basis of selections made in accordance with the laid downselection process. The power of appointment conferred on the PSCdoes not empower it to make appointments without any regard tothe selections made after following the proper selection process. “Itis accepted today that power of appointment and dismissal are conferredon various authorities in the public interest, and not for private benefit,that they are held in trust for the public and that the exercise of thesepowers must be governed by reason and not caprice” per Fernando,
J.In Jayawardena v. Dharani Wijetilake and Otherd2) at 159. When 320the PSC makes appointments to the rank of ASP it is under a dutyto make such appointments on a basis which is reasonable. In fact,when the PSC appointed 14 Assistant Superintendents of Police inaccordance with the order of merit set out in the marks sheet P5it has acted on a reasonable basis. But, can the same be saidwith regard to the other three appointments made subsequently? AsI have already pointed out the reason for preparing the marks list4R1 remains a mystery. The respondents have not established itscorrectness. They have not explained the basis on which the candidatewho was in the 39th position in the order of merit in P5 came to 330be placed in the 15th position in 4R1. “Respect for the rule of lawrequires the observance of minimum standards of openness, fairnessand accountability in administration; and this means – in relationto appointments to and removal from, offices involving powers,functions and duties which are public in nature – that the processof making a decision should not be shrouded in secrecy . . .” perFernando, J. Jayawardana by Dharani Wijetilake and Others (supra).
CAKaravita and Others and Welikanna v.
Inspector-General of Police and Others (Gamini Amaratunga, J.)299
By making three appointments on the basis of 4R1 the PSC has failedin its public duty by the petitioners.
Even after petitioner Samarasekara by his counter affidavit 340challenged the correctness of 4R1, the PSC has not taken any stepsat least to examine the correctness of his challenge. This is quitein contrast to the manner in which the PSC has acted when Ratnatilekefiled his application No. 1164/99. In my view, the failure of the PSCto respond to the complaint of injustice contained in the applicationsof the petitioners constitutes a refusal to perform the duty owed byit to the petitioners. The above failure and the refusal of the PSCconstituted a denial of the rights of the petitioners to be consideredfor promotions on the order of merit decided upon in the selectionprocess and reflected in P5. In such a situation what is the remedy 350available to the petitioners?
Wade in Administrative Law makes the following observation whichis relevant here. “Within the field of public law the scope of Mandamusis still wide and the Court may use it freely to prevent breach ofduty and injustice.” He has quoted Darling, J. in support : “Insteadof being astute to discover reasons for not applying this greatconstitutional remedy for error and misgovernment, we think it ourduty to be vigilant to apply it in every case to which, by any reasonableconstruction, it can be made applicable” per Darling, J. in R. v HanleyRevising Barrister at 529. See Wade Administrative Law, 8th edition 360pp 607-608.
In the case of Chief Constable of North Wales Police v. Evand3)a probationary police constable was forced to resign under threat ofdismissal held out by the Chief Constable who believed that therumours he had heard about Evans’ private life (which were largelyunfounded) to be true that he should resign. Evans was not givena hearing before he was asked to resign. The House of Lordscategorically stated that an order of Mandamus to reinstate therespondent was the only satisfactory remedy and that the House of
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Lords had the power to make such an order. However, a Writ ofMandamus was not issued by the House for practical reasons. Evanswas still a probationer and he had some more time to complete hisperiod of training. Under the regulations applicable to probationers,the chief constable had the power to review, at the end of the trainingperiod, the suitability of the probationer and to dismiss him with onemonth’s notice. In view of this residuary power available to the chiefconstable the House was of the view that an order of Mandamus inpractice might be an usurpation of the powers of Chief Constableunder the regulations. In view of this, the House, without granting anorder of Mandamus, granted a declaration. The decision of the Houseof Lords is clear authority confirming a Court’s competence to issuea Writ of Mandamus compelling the appointment of a person to aparticular post or office.
In the present case the PSC does not have powers akin to theresiduary powers possessed by the Chief Constable in Evans’ case.Since the appointment of officer Moses who was placed after allpetitioners in order of mertit cannot be reversed, the only way toremedy the injustice caused to the petitioners is to issue a writ ofMandamus directing the 4th to 10th respondents to promote andappoint the petitioners to the rank of ASP on the same terms applicableto Moses. The absence of precedent does not deter me when I amconvinced that the only effective remedy to remedy the injusticecaused to the petitioners is an order of Mandamus.
A comparison of the Fundamental Rights applications (Nos. 607/99 and 608/99) with the present application indicates that at the timethe fundamental rights applications were filed the members of PSCwere not the same members named as respondents in the presentapplications. There is no material to indicate whether the appointmentof officer Moses was made by the present members of the PSC ortheir predecessors. If it had been made by the former members ofthe PSC, and when they have been replaced by successors, the latter
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may be ordered to make good their predecessors’ default, ft v. HanleyRevising Barrrister (supra).
The respondents' in their written submissions have stated that ifthe relief prayed for by the petitioners is granted, it would prejudicethe rights of others who are placed in between the several petitionersin order of merit who have not filed similar applications before thisCourt. However, the inaction of the other candidates is not a groundto deny relief to the petitioners who relentlessly persued theseapplications to protect their rights.410
The Inspector-General of Police (1st respondent) and the Secretary.Ministry of Defence (2nd respondent) have not filed objections tothe petitioners’ applications. The 1st respondent has not placed beforethis Court any material to indicate that there would be administrativedifficulties, such as the non availability of cadre vacancies, inimplementing an order to promote the petitioners to the rank of ASPmade in consequence of a Writ of Mandamus issued by this Court.
It must be noted here that when the PSC earlier ordered the promotionsof Chandrasiri and Moses they were appointed to the Supernumerarycadre when cadre vacancies did not exist.420
For the reasons set out above I allow the applications of thepetitioners in CA Application Nos. 736/2000 and 907/2000 and issuea Writ of Mandamus directing the 4th to 10th respondents to promoteand appoint the petitioners in the above-mentioned applications to therank of Assistant Superintendent of Police based on the marks sheetP5 prepared by the 3rd respondent and also directing the 1st and2nd respondents to give effect to such appointments. In view of theimportant question of law involved in this case I make no order forcosts.
Application allowed.