Tennakoon v. Piyadigama and Others (Kulatunga, J.)
PIYADIGAMA AND OTHERS
G.P.S. DE SILVA, C.J.
KULATUNGA, J. ANDRAMANATHAN, J.
S.C. APPLICATION NO. 275/94.
28 MARCH, 02 MAY AND 13 JUNE, 1995.
Fundamental Rights – Compulsory and premature retirement on suppressionof post.
When there is a change of government it may become necessary to manpositions with different persons. It may also become necessary to provide"personal staff" to Ministers. But officials in the position of the 1st Respondentmust ensure that such action is lawfully taken, in accordance with governmentdecisions and without causing serious prejudice to particular public officers.Here the Petitioner who was appointed Senior Assistant Secretary(Information) coming over from a simitar position in the Ministry of PublicAdministration, Provincial Councils and Home Affairs was prematurely andcompulsorily retired. He was not informed of his option to revert to hisearlier post; when he applied for reversion, everything was done to closeall avenues of reversion or alternative employment. No effort whatsoeverwas made to find alternative employment for him. Instead the 1stRespondent compulsorily and prematurely ordered his retirement. He wassubjected to selective discrimination.
APPLICATION for relief for infringement of fundamental rights guaranteedunder Article 12(1) of the Constitution.
R.K.W.Goonesekera with J.C.Weliamuna and Miss Shiranthi Jayatilleke forPetitioner.
Surath Piyasena S.S.C. for Respondents.
June 26, 1995.KULATUNGA J.
The Petitioner has been a public officer from 1961. He complains
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that the 1st Respondent (Secretary to the Ministry of Labour and Voca-tional Training) has purported to compulsorily retire him at the age of52 years and thereby infringed his rights under Article 12(1) of theConstitution.
The Petitioner was a government teacher from 1961 to 1971. From1972 -1989 he was a Press Offficer in the Department of Information,and the Ministry of Cultural Affairs and Labour. He rose to the positionof Senior Assistant Secretary (Information) in the Ministry of Labour.From 1989 -1992 he served in the same capacity in the Ministry ofPublic Administration, Provincial Councils and Home Affairs. In 1992,he reverted to the Ministry of Labour, as Senior Assistant Secretary(Information).
On 09.09.94 the 1 st Respondent addressed a letter to the Secre-tary/Ministry of Public Administration, Local Government and Planta-tion Industries, requesting for the release of G.H.S. Premasiri of theSLAS as the 2nd Respondent (Minister of Labour & Vocational Train-ing) intended to appoint him as the Senior Assistant Secretary (Infor-mation) in the Ministry (Exhibit X2). Next, the 1st Respondent by hisletter dated 15.09.94 informed the Petitioner that the Petitioner's serv-ices will be terminated with effect from 30.09.94 as the 2nd Respond-ent intended to appoint another officer as Senior Assistant Secretary(Information) (Exhibit P2).
On 20.09.94 the petitioner inquired from the 1 st Respondent whathis new duties will be in the event of the proposed new appointment(Exhibit P3). This letter was not replied but on 07.10.94 the 1st Re-spondent issued a letter of appointment to the 3rd Respondent ap-pointing him as Co-ordinating Officer (Information) to the 2nd Respond-ent. The letter states that the appointment is temporary and personalto the 2nd Respondent and that the 3rd Respondent will hold officesubject to termination, at the will of, the 2nd Respondent. He wouldotherwise be subject to the Establishments Code and Financial Regu-lations etc. and receive a salary of Rs.45,120 – 57,120 and ProvidentFund benefits (Exhibit 1R11).
Thereafter, the 2nd Respondent obtained a Cabinet decision dated12.10.94 for the suppression of the posts of Senior Assistant Secre-
Tennakoon v. Piyadigama and Others (Kulatunga, J.)
tary (Information) and Assistant Secretary (Trade Unions) in his Minis-try. According to the decision, the person holding the said posts werepermitted, at their option, to revert to their earlier posts or to retirefrom service (Exhibit 1R5).This decision was obtained presumbly forthe reason that according to a government decision made on 05.10.94and published in PA Circular No.36/94 dated 19.10.94 (Exhibit XI), aMinister was permitted personal staff including a Co-ordinating Officer(Information). However, a Minister will not be entitled to appoint a Co-ordinating Officer (Information) in his personal staff where there is apost of Assistant Secretary (Information) in the cadre of his Ministry;hence the appointment of the 3rd Respondent made on 07.10.94 whichwas contrary to that decision had to be regularised.
Next on 26.10.94 the 1 st Respondent informed the Petitioner thathe would be retired with effect from 31.10.94 in view of the fact thatthe post of Senior Assistant Secretary (Information) had been abol-ished by the aforesaid Cabinet decision (Exhibit P4). In so addressingthe Petitioner, the 1st Respondent failed to disclose the option grantedto an affected officer, to revert to his previous post. However, in hisletter of the same date addressed to W.A. Somasiri, Assistant Secre-tary (Trade Unions) whose post was also abolished, the 1st Respond-ent copied the Cabinet decision fully and requested him to inform within3 days whether he would revert to his previous post or retire fromservice.
Somasiri did not retire; but he was reverted to awacant post in theSpecial Grade in the Sri Lanka Middle Level Technical Service, in theDepartment of Labour.
On 27.10.94 the Petitioner informed the 1st Respondent that he(the Petitioner) had learnt that the Cabinet decision gives an affectedofficer the option to revert to his previous post; as such he cannot becompulsorily retired and would opt to revert to his previous post (Ex-hibit P5). On 14.11.94, the 1st Respondent replied stating that the pe-titioner's previous post namely, Senior Assistant Secretary (Infor-mation) in the Ministry of Public Administration, had also been abol-ished and the substitute post, Co-ordinating Offficer (Information), inthat Ministry had been filled; hence the petitioner will be retired fromservice (Exhibit P6).
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 1 Sri L.R.
By his letters dated 14.11.94 and 15.11,94 addressed to the 1stand 2nd Respondents respectively, the Petitioner reiterated that in termsof the Cabinet decision, he cannot be compulsorily retired and requestedthat he be given alternative employment until he reached his age ofretirement (Exhibits P7 and P8).
In his affidavit, the 1st Respondent admits that the post of SeniorAssistant Secretary (Information ) still exists in the Ministry of Ship-ping, Ports, Rehabilitation and Reconstruction and in the Ministry ofTrade. In his petition, the Petitioner states that the said post still ex-ists in two other Ministries namely, the Ministry of Forestry and theMinistry of Industries. This has not been contradicted. In his counteraffidavit he states that, even after the Cabinet decision there havebeen appointments to the post of Senior Assistant Secretary (Informa-tion) in the Ministry of Transport, Highways, Environment and Wom-en's Affairs and the Ministry of Irrigation, Power and Energy.This hasbeen admitted in the written submissions filed on behalf of the Re-spondents.
On these facts, Mr. R.K.W. Goonesekera, learned Counsel for thePetitioner submits that the decision to terminate the services of thePetitoner and to place him on retirement is mala fide, arbitrary, unjust,discriminatory and for a collateral purpose, all of which are violative ofthe Petitioner's right to equal protection of the law.
The learned Senior State Counsel submits that the other officerswho hold posts of Senior Assistant Secretary (Information) and Somasiriwho was found alternative employment are not similarly circumstancedvis-a-vis the Petitioner. I
I am of the view that the Petitioner and other officers are in the likesituation being public officers who are normally entitled to serve untilthe age of retirement. However, the Petitioner's post was suppressedand he was purportedly retired, whilst some officers have been permit-ted to continue as Senior Assistant Secretary (Information). Somasiriwhose post was suppressed was given alternative employment. Thereis no rational basis for such action. Hence, the allegation of unlawfuldiscrimination is established.
Tennakoort v. Piyadigama and Others (Kulatunga, J.)
Consequently, I am in agreement with the submissions of Mr.Goonesekera. It seems to me that the Petitioner has been subjectedto selective discrimination. When there is a change of government itmay become necessary to man certain positions with different per-sons. It may also become necessary to provide "personal staff" toMinisters. But officials in the position of the 1st Respondent mustensure that such action is lawfully taken, in accordance with govern-ment decisions and without causing serious prejudice to particularpublic officers. Here the Petitioner was not informed of the option torevert to his earlier post; when he applied for reversion, every thingwas done to close all avenues of reversion or alternative employment;no effort whatsoever was made to find alternative employment for him;instead, the 1st Respondent compulsorily and prematurely ordered hisretirement.
For the foregoing reasons, I grant the Petitioner a declaration thatthe impugned retirement of the Petitioner is violative of his fundamen-tal rights under Article 12(1) of the Constitution and hence null andvoid and of no force or effect. As the post held by the Petitioner in theMinistry of Labour has been abolished, I direct the 1st and 2nd Re-spondents and the State to appoint him to another post of Senior As-sistant Secretary (Information) in the Public Service or to any othercomparable post.
On the question of compensation Mr. Goonesekera submits thatthe Petitioner is entitled to substantial compensation. I am in agree-ment with this submission. Accordingly, I direct the State to pay himcompensation in a sum of Rs.60,000/- (Rupees Sixty Thousand) beingthe minimum loss of his earnings since the impugned retirement on
based on the scale of salary specified in 1R2 (Rs.72.000 -10 x 3600 -108,000/-)Secretary (Information) in the Ministry of PublicAdministration in 1989. I also direct the 1st Respondent to pay thePetitioner costs in a sum of Rs.5000/- (Rupees Five Thousand).
G.P.S. DE SILVA, C.J. – I agree.
RAMANATHAN, J. -1 agree.
TENNAKOON V. PIYADIGAMA AND OTHERS