JAYASEKERAV.W1PULASENA AND OTHERSSUPREME COURT
A. G. DE SILVA J. G. P. S, DE SILVA J. AND JAMEEL J.
S. C, APPLICATION NO. 157/87•
JUNE 30. 1988
Fundamental Rights — Article 12(1) of the Constitution — Unequal treatment—‘Bus pass — Validity of bus pass.
The petitioner 'a Police Officer' complained he was not allowed to travel on a busdespite his having a pass P1 while a colleague of his with a similar pass' wasallowed to do so.-According to the rules "a travel pass (on a bus} is valid for acalendar year and expires on 31st December of each year. Requests forextensions should be sent through the employer to the Operations Controller.Sri Lanka Central Transport Board before 31st December each year". The buspass on which petitioner travelled bore no expiry date. Having regard to thecondition stipulated in the above rule. PI was not a valid pass. Although thepetitioner's colleague was allowed to travel no complaint of discriminationwould be justified. Article 12(1) cannot confer on the petitioner a right to.whichhe is not entitled in terms of the very contract upon which he founds hiscomplaint of "unequal treatment". An authority cannot be required to act illegallyin one case because it has acted illegally in other cases.
Cases referred to:
Setty v Commissioner. Corporation of the City of Bangalore AIR 1968Mysore 251
2. Roberts v. Ratnayake (1986) 2 Sri LR 36APPLICATION under Article 126 of the Constitution.
R. K. W. Goonasekera with Anton Fernando and G D. Piyasiri for petitioner.JauferHassan with Padmmi Gunasinghe. for 1st. 2nd and 3rd respondents.
Cur. adv. vuh.
July 21.1988G. P. 8. de Silva, j.
This is an application under Article 126 of the Constitutioncomplaining of "unequal treatment” in violation of Article 12(1).The petitioner is a Police Sergeant attached to the Bribery
Commissioner's Department. The 1st respondent is a busconductor attached to the North Central Transport Board, whilethe 2nd and 3rd respondents are the Transport Manager and theChairman, respectively, of the Colombo North Regional TransportBoard. According to the petitioner, he was issued with a validbus pass by the Police Department which entitled him to travelwithout payment from Kurunegala. his place of residence, toLongdon Place. Colombo, his place of work, and back home afterthe day's work was over. On the day in question, namely08.10.87. the petitioner along with his colleague. PoliceSergeant Abeysinghe. had left their place of work at about4.05 p.m. and had arrived at the Colombo central bus stand atPettahat about 4.45 p.m. in order to travel back to his residenceat Kurunegala. In his petition he avers that there was bus No. 30Sri 7418 bound for Polonnaruwa via Kurunegala. The 1strespondent was the conductor of this bus. According to thepetitioner, there was no queue but some passengers werealready in the bus and he along with his colleague PoliceSergeant Abeysinghe and one Fernando who was an ArmyCorporal boarded the bus, having informed the 1st respondentthat they were all travelling on bus passes. The petitioner's caseis that while the 1 st respondent objected to his using the buspass to travel on this bus to Kurunegala. the 1 st respondent didnot object to either Police Sergeant Abeysinghe or CorporalFernando travelling on their bus passes. He contends that theaforesaid conduct of the 1st respondent amounts to hostilediscrimination in violation of Article 12(1) of the Constitution. Inhis petition he further avers that an officer attached to theCentral Transport Board demanded his bus pass and took it awayand he was not allowed to travel on the bus. He has producedalong with his petition and affidavit a photocopy of his bus passmarked P1 and photocopies of the bus passes of Police SergeantAbeysinghe and of Corporal Fernando, marked P2 and P3respectively.
The 1 st respondent (the bus conductor) in his affidavit takesup the position that the petitioner had. without waiting in thequeue, boarded the bus out of turn while a large number ofpassengers were yet standing in the queue. He had thenexamined the petitioner's bus pas9 and he formed the view thatthe petitioner was not entitled to travel in this bps as this was abus bound to Polonnaruwa and he was required to give priorityto passengers travelling beyond Kurunegala. It was his positionthat there was a large number of passengers who were travellingbeyond Kurunegala. Since the petitioner had insisted ontravelling in this bus, he' had reported the matter toSamaranayake, the Assistant Manager (Traffic) who in turn hadinstructed one Tilakaratne to look into the complaint of the 1strespondent. Tilakaratne had thereupon boarded the bus andquestioned the petitioner. The petitioner had insisted ontravelling in this bus and when Tilakaratne had asked him tocome and meet Samaranayake, the petitioner had refused to doso and wanted Samaranayake to come to the bus and speak tohim. Tilakaratna had taken the petitioner's bus pass and handedit over to Samaranayake.
On examination of the petitioner's bus pass P1. it wasdiscovered on that day itself, that it did not have the expiry datestamped on it. The fact that PI did not bear the date of expiry isnot disputed by the petitioner. The petitioner's position is that itis not at all necessary to have the date of expiry stamped on PIbecause a bus pass issued to a Police Officer is valid "until theholder changes his station and/or his place of residence or dies,resigns, retires, is interdicted, or has his enlistment cancelled"(paragraph 21 of the petition). On the other hand, it was theposition of the respondents that P1 was invalid as it did not havethe date of expiry stamped on it. In fact W. H. Gunatilake, theTraffic Manager who was on duty that day has in his affidavitaverred that he had informed the petitioner that his "pass wasmutilated and was invalid and did not contain an expiry date".
The first question that arises for decision was whether PI wasvalid or not. On this issue, the document 2R1 which sets out the"conditions applicable to travel passes" has a direct bearing. Itprovides, inter alia, as follows: 'The travel pass is valid for acalendar year and expires on 31st December of each year.Requests for extensions should be sent through the employer tothe Operations Controller, Sri Lanka Central Transport Boardbefore 31st December each year." Having regard to the abovecondition stipulated in 2R1, I hold that P1 was not a valid buspass.
Mr. Gunasekera. Counsel for the petitioner next contended thateven if PI was invalid, there was “discrimination" within themeaning of Article 12(1) for the reason that Police SergeantAbeysinghe whose bus pass (P2) admittedly did not bear the dateof expiry was allowed to travel that day. Mr. Gunasekera'ssubmission in short was that on the admitted facts there was aclear infringement of Article 12(1).
In regard to Police Sergeant Abeysinghe's use of the bus pass(P2) which also did not bear the date of expiry, there is oneimportant fact which emerges from a careful reading of theaffidavits filed of record. The officers of the Transport Board didnot at any stage call for or examine the bus pass of PoliceSergeant Abeysinghe. There is no material on record which evensuggests that the respondents were aware at anytime on that daythat Police Sergeant Abeysinghe who had already boarded thebus was using an invalid bus pass. In so far as Abeysinghe wasconcerned, the position appears to be that he was permitted totravel on his bus pass owing to an inadvertent omission on thepart of the 1 st respondent to check on it. .
I have already held that PI is not a valid bus pass. Thepetitioner not having a valid bus pass was rightly not allowed totravel in the bus. The fact that Abeysinghe also did not have avalid bus pass was not a matter which the respondents wereaware of on that day. In these circumstances, could thechallenge based on Article 12(1) succeed? I think not. It was notdisputed that the bus pass issued to the petitioner was pursuantto a contract entered into between the Police Department (ofwhich the petitioner was a member) and the Transport Board. Inmy opinion. Article 12(1) cannot confer on the petitioner a rightto which he is not entitled in terms of the very contract uponwhich he found his complaint of "unequal treatment".
The view I have taken gains some support from the case ofT. V. Settyv. Commissioner, Corporation of the City of Bangalore
. That was a case where the petitioner made an applicationunder Article 226.of the Constitution of India challenging theorders of the Bangalore City Municipal Corporation refusing hima licence to carry on manufacture of soaps in the premises in
which he has been so doing. It was contended for the petitioner,inter alia, that e number of soap manufacturers carrying onmanufacture in similar circumstances as the petitioner, weregranted licences while the petitioner was denied a licence, thusinfringing Article 14 of the Constitution of India (whichcorresponds to Article 12 of our Constitution). Dealing with thissubmission Chandreshekhar J. expressed himself thus:"Assuming that the Corporation has issued to those personslicences improperly and against the provisions of theCorporation Act and by laws thereunder. Article 14 of theConstitution cannot be understood as requiring the authorities toact illegally in one case because they have acted illegally in othercases".
Before 1 conclude, it is right to add that the main ground onwhich the respondents sought to resist the petitioner'sapplication was that the petitioner's right to travel on a bus passarises from a non-statutory contract between the PoliceDepartment and the Transport Board: that the rights andliabilities of parties being purely contractual in character, theprovisions of Article 12(1) have no application. In support of thiscontention Counsel for the respondents retied very strongly onthe majority judgment in Roberts v. Ratnayake (2) which took theview that in a purely contractual situation the' provisions ofArticle 12(1 V have no application and cannot be invoked. Havingregard to the view I have expressed above, it is not necessary toconsider the submissions based on Roberts v. Ratnayake (supra)made by Counsel for the petitioner as well as Counsel for therespondents.
In the result, the application fails and is dismissed, but withoutcosts.
A. Q. de silva, J. — (agree.JAMEELJ. – I agree.Application dismissed
JAYASEKERA V. WIPULASENA AND OTHERS