SCFarook VS Dharmaratne, Chairman, Provincial Public Service 133
Commission, Uva and Others
DHARMARATNE, CHAIRMAN, PROVINCIAL PUBLIC SERVICE COMMISSION,
UVA AND OTHERS
DISSANAYAKE, ANDFERNANDO, J.
SC (FR) APPLICATION NO. 508/200229TH SEPTEMBER, 2004..
Fundamental Rights – Transfer of petitioner as Principal, Razick Fareed MahaVidyalaya procured by influence or deceit – Petitioner not eligible for Principal'spost of that school – Subsequent appointment of eligible candidate challenged- Article 12(1) of the Constitution.
The petitioner who was in Grade l-l of the Sri Lanka Principals’ Service was noteligible to apply for the post of Principal of Sir Razick Fareed Maha Vidyalaya.However, with the support of the Provincial Chief Minister of the Uva Province,he first became Principal of Liyanagahawela Tamil Vidyalaya for which he wasnot eligible and thereafter by deceit and with the support of the ProvincialMinistry of Education he obtained an appointment as Principal of Razick FareedMaha Vidyalaya. When the 05th respondent the Provincial Director of Education,
Sri Lanka Law Reports
(2005) I Sri L. R.
Uva realized the mistake the petitioner was duly transferred as the Principal ofPitarathmale No. 01 Tamil Vidyalaya and the 06th respondent who was eligiblefor higher status was appointed as Principal, Razick Fareed Maha Vidyalaya.The petitionr challenged that appointment of the 06th respondent as violativeof Article 12(1) of the Constitution.
The petitioner was not eligible for appointment as Principal, Razick FareedMaha Vidyalaya and obtained that appointment by deceit or influence.
There is no right under Article 12(1) to have to obtain an illegal appointmentmade, the right of the petitioner being the equal provision of the law (not equalviolation)
Cases referred to :
Ajaya Hasia v Kalid Mujib (1981) AIR SC 487
C. W. Mackie and Company Ltd v Hugh Molagoda, Commissioner Generalof Inland Revenue and Others (1986) 1 Sri LR 300 at page 309.
APPLICATION for relief for infringement of fundamental rights.
Dr. Jayampathi Wickramaratne, PC, with Pubudini Wickramaratne forpetitioner.
S. Herath, State Counsel for the 01-st to 05th and 07th respondents.
25th October, 2004,
SHIRANI BANDARANAYAKE, J.The petitioner served as the Principal of Liyanagahawela Tamil Vidyalayasince 01.06.1993 (P3) until 06.02.2000. As submitted by the petitioner ona request made by the then Chief Minister of Uva Province Mr. SamaraweeraWeerawanni, he was appointed to the post of Advisor on Muslim Cultureto the Ministry of Education, Health Services, Cultural, Youth Affairs, Sportsand Co-operatives of the Uva Province. He had assumed duties in the said
SC ' Farook VS Dharmaralne, Chairman, Provincial Public Service135
Commission, Uva and Others (Bandaranayake, J.)
post on 07.02.2000 (P4). After the resignation of Mr. Weerawanni from thePeople’s Alliance, the petitioner had received credible information that thenew Chief Minister was contemplating to remove the petitioner from hispost as the Advisor of the aforementioned Ministry. He had therefore madea request to the Secretary of the said Ministry by his letter dated 26.12.2001to release him from the said post and to appoint him as the Principal of SirRazick Fareed Maha Vidyalaya at Bandarawela. At that time, accordingto the petitioner, the said post had been vacant.
By letter dated 16.01.2002, the petitioner was sent as the Principal ofSir Razick Fareed Maha Vidyalaya (P6) and the petitioner had assumedduties in the said post on 17.01.2002. However, on 17.01.2002, the 05threspondent had cancelled the petitioner’s transfer to Sir Razick FareedMaha Vidyalaya and transferred him to Liyanagahawela Tamil Vidyalayaas its Deputy Principal (P7). Thereafter the petitioner had maderepresentations against his transfer to'Her Excellency the President, theGovernor of the Uva Province, the Minister of Education of the CentralGovernment, the Chief Minister of the Uva Province and the Secretary tothe Provincial Ministry of Education (P8). The petitioner claimed that hewas in Grade II of the Sri Lanka Principals’ Service with effect from01.06.1996.
By letter dated 30.01.2002, the Secretary of the Provincial Ministry ofEducation informed the petitioner that his transfer to Liyanagahawela TamilVidyalaya was cancelled and that he had been appointed as the Principalof Sri Razick Fareed Maha Vidyalaya, Bandarawela (P10). By Circulardated 18.02.2002, the Provincial Director of Education called for applicationsfor the posts of Principals in various schools in the Uva Province (P11) andthe Circular had stated that the post of Principal of Sir Razick FareedMaha Vidyalaya is vacant from 29.10.2001. Thereafter on 14.08.2002, tothe surprise of the petitioner he has received a letter dated 14.08.2002from the 05th respondent transferring him to Pitarathmale No. 01, TamilVidyalaya with immediate effect (P13.). The 06th respondent who wasserving as the Principal of Pitarathmale No. 01 Tamil Vidyalaya wastransferred as Principal Sir Razick Fareed Maha Vidyalaya by letter ofeven date (P14).
136Sri Lanka Law Reports(2005) 1 Sri L. R.
The petitioner submitted that to the best of his knowledge, PitarathmaleNo. 01 Tamil Vidyalaya is a Grade II School with classes upto Grade 11and it is an Estate School 15 kilometers away from Bandarawela. Theschool consists 100% Tamil Students and the general practice of theMinistry of Education is to have a Tamil Principal in such schools. Hefurther submitted that, the 06th respondent is not a graduate whereas thepetitioner is one of the four Muslim Graduate teachers in the BandarawelaEducation Zone.
The petitioner contended that he has credible information that his suddentransfer to Pitarathmale No. 1 Tamil Vidyalaya was effected on theinstructions of one A. M. Buddhadasa; Chief Minister of Uva.Province andM. H. M. Mubarak, Member of the Uva Provincial Council. He .furthercontended that he is being victimized due to his close relationship withMr. Samaraweera Weerawanni, who appointed the petitioner to the post ofAdvisor on Muslim Culture. The petitioner claimed that his sudden transferis contrary to the principles laid down in Circular P11 as the transfer wasmade without any reference to a Transfer Board and to a school where thepost of principal is not vacant. Also there was no reason to effect such asudden transfer. The petitioner therefore claimed that in the aforesaidcircumstances his transfer as Principal to Pitarathmale No. 1 TamilVidyalaya, is arbitrary, capricious and unreasonable and thereby is inviolation of his fundamental rights guaranteed to him under Article 12(1) ofthe Constitution. Further he claimed that as the transfer was effected dueto his close relationship with Samaraweera Weerawanni, it is in violationof Article 12(2) of the Constitution.
This Court granted leave to proceed for the alleged infringement of Article12(1) of the Constitution.
The 5th respondent, who is the Provincial Director of Education of theUva Province, in his affidavit had averred that, at a time when the petitionerwas officiating in the capacity of Principal of Liyanagahawela TamilVidyalaya at Bandarawela, he was appointed to the Sri Lanka Principals'Service on supernumerary basis with effect from 01.06.1993. Theseappointments were made consequent to a decision of the Cabinet ofMinisters to grant supernumerary appointments in the Sri Lanka Principals'
SCFarook VS Dharmaratne, Chairman, Provincial Public, Service137
Commission, Uva and Others (Bandaranayake, J.)
Service to persons serving as Acting Principals at the relevant time.According to the 5th respondent, such supernumerary appointees did notsit for the usual examination conducted for appointments for the Sri LankaPrincipals’ Service and it was expected that they would continue to providetheir services in the same schools or in schools of similar standing. The5th respondent has further averred that the petitioner was granted thesuprenumerary appointment to the Sri Lanka Principals’ Service purely forthe reason that he was acting as Principal at Liyanagahawela TamilVidyalaya. Referring to the position taken by the petitioner regarding his■transfer to Razick Fareed Maha Vidyalaya and to Liya'nagahawela TamilVidyalaya, the 5th respondent has averred in his affidavit in the followingterms :
“I also received the letter dated 10.01.2002 from the Secretary
to the Ministry of Education, Health, Sports,Transport, TourismEstate Infrastructure and Hindu Cultural Affairs of the Uva.ProvincialCouncil whereby he forwarded the petitioner's request to him foran appointment as the Principal of Razick Fareed Maha Vidyalayafor necessary action (5R4).
As the petitioner was released from the Liyanagahawela TamilVidyalaya, upon reversion his appointment should have been tothe same school, but in order to accommodate his request Iauthorized his transfer to Razick Fareed Maha Vidyalaya,Bandarawela, but to the post of Deputy Principal as there wasalready a person acting in the capacity of Principal in the saidschool.
However, the then Deputy Director of Education was of the opinionthat it would not be appropriate to appoint the petitioner who wasa SLEAS Officer to the post of Deputy Principal as the ActingPrincipal was not a SLEAS Officer and therefore made the minutedated 16.01.2002.
Before I could consider the said minute of the Deputy Director ofEducation and make a decision thereon, the petitioner had falselyinformed the Deputy Director of Education that I had authorizedhis appointment as Principal to Razick Fareed Maha Vidyalayauntil a permanent appointment is made consequent to an interviewand having believed the petitioner the then Deputy Director ofEducation had issued to him the transfer letter dated 16.01.2002transferring him from Liyanagahawela Tamil Vidyalaya to Razick
13SSri Lanka Law Reports(2005) J Sri L. R.
Fareed Maha Vidyalaya as Principal until interviews are held anda permanent Principal is appointed (an affidavit sworn by the thenDeputy Director of Education and the Subject Clerk is annexedhereto marked as 5R5).”
The 5th respondent had further averred that,
“the issue of the said transfer letter (P6) was neverauthorized by me and when I realized that the petitionerhad procured the said transfer letter by deceit I immediatelycancelled the said transfer and directed the petitioner torevert to Liyanagahawela Tamil Vidyalaya by letter dated
(P7) (emphasis added).”The dates of the aforementioned letters of transfers are indicative as tohow the petitioner has procured his transfer. The initial letter of transfer■ from Liyanagahawela Tamil Maha Vidyalaya to Razick Fareed MahaVidyalaya is dated 16.01.2002 and was signed by the Deputy Director ofEducation. The petitioner was to assume duties with immediate effect.The letter of cancellation of such transfer and directing the petitioner toassume duties at Liyanagahawela Tamil Maha Vidyalaya is dated
and is signed by the Provincial Director of Education. By letterdated 21.01.2002 the petitioner informed the Chief Minister of. the UvaProvince that he had assumed duties at Razick Fareed Maha Vidyalayaon 17.01.2002 and to permit him to continue serving in that school. TheSecretary of the Provincial Ministry of Education refers to the letter sentby the petitioner to the Provincial Director of Education for suitable actionand on.30.01.2002 the Assistant Secretary of the Provincial Ministry ofEducation informed the petitioner that the transfer to Liyanagahawela TamilSchool has been cancelled and that now he is appointed as the Principalof Razick Fareed Maha Vidyalaya.
The'sequence of letters referred to above substantiates the contentionof the 5th respondent that the petitioner has procured the said transfer toRazick Fareed Maha Vidyalaya not by the normal routine procedure ofobtaining a transfer, but by adopting deceitful practice.
It is to be borne in mind that Razick Fareed Maha Vidyalaya is a GradeIC school. In terms of the Circular No. 23 of 1998, only a person who is in
SCFarook VS Dharmaratne, Chairman, Provincial Public Service 139
Commission, Uva and Others
Grade I, II or III of the Sri Lanka Educational Administrative Service or aperson in Grade I of the Sri Lanka Principals’ Service would be entitled toapply for the vacancies of a Principal’s post. Admittedly the petitioner is inGrade IM of the Sri Lanka Principals’ Service and therefore is not qualifiedto apply for the Principal’s post at Razick Fareed Maha Vidyalaya.
Furthermore, it is to be noted that in terms of the Circular, No. 23 of1998, when steps are being taken to fill up the vacancies in the post ofPrincipal in a Grade IA, B or C school, the Provincial Administrators haveto inform the Ministry of Education at least 3 months prior to such decisionbeing taken.
The petitioner has complained that his fundamental rights guaranteedin terms of Article 12(1) of the Constitution have been violated by therespondents. Article 12(1) of the Constitution which speaks of equaltreatment, reads thus,
“All persons are equal before the law and are entitled to the equalprotection of the law.”
Article 12(1) of the Constitution embodies the basic principle that equallaws apply alike to all in any similar situation. Thus it is envisaged thatthere would be no discrimination by those entrusted with the powers ofadministration when discharging their administrative functions. In AjayHasiav Khalid Muji&v reference was made to the concept of equality and it wasstated that,
Equality is a dynamic concept with many aspects and dimensionsand it cannot be ‘cribbed, cabined and confined' within traditionaland doctrinaire limits. From a positivistic point of view, equality isantithetic to arbitrariness. In fact, equality and arbitrariness aresworn enemies, one belongs to the rule of law in a republic whilethe other, to the whim and caprice of an absolute monarch. Whenan act is arbitrary it is implicit in it that it is unequal both accordingto political logic and constitutional law”
The petitioner’s allegation is that the respondents have infringed hisfundamental rights by transferring him to Pitarathmale No. 1 Tamil Vidyalaya
140Sri Lanka Law Reports(2005) I Sri L. R.
and that they should have allowed him to remain as the Principal of RazickFareed Maha Vidyalaya. It is common ground that the petitioner wasappointed to the Razick Fareed Maha Vidyalaya as the Principal on
on the orders of the Assistant Secretary of the ProvincialMinistry of Education. However, as clearly pointed out earlier the saidschool which is categorised as a Grade IC school requires, according toCircular No. 23 of 1998, a person who is in Grade I of the Sri LankaPrincipals’ Service. Admittedly the petitioner is in Grade II – I of the SriLanka Principals’ Service and therefore is not qualified to be appointed toRazick Fareed Maha Vidyalaya. The petitioner claimed that he would befacing several hardhips if he is not given Razick Fareed Maha Vidyalayaas his wife was also'transferrd to the said school in year 2000. His positionis that after he moved to the Principal’s quarters of the said school theirearlier residence, which belonged to his wife, was given on lease in February,2002.
The petitioner’s relief sought from this Court is to declare that his transferas Principal of Pitarathmale No. 1 Tamil Vidyalaya, Haputale and the 6threspondent’s transfer as Principal of Sri Razick Fareed Maha Vidyalaya,Bandarawela are null and void. In view of the forgoing analysis of the materialplaced before this Court the petitioner has no right to be the Principal ofRazick Fareed Maha Vidyalaya as he has not got the requisite qualifications.However, the petitioner quite clearly has sought to obtain relief on thebasis of unequal treatment. When a person does not possess the requiredqualifications that is necessary for a particular position, would it be possiblefor him to obtain relief in terms of a violation of his fundamental rights onthe basis of unequal treatment ? If the answer to this question is in theaffirmative, it would mean that Article 12(1) of the Constitution would beapplicable even in a situation where there is no violation of the applicablelegal procedure or the general practice. The application of Article 12(1) ofthe Constitution cannot be used for such situations as it provides to anaggrieved person only for the equal protection of the law where the authoritieshave acted illegally or incorrectly without giving due consideration to theapplicable guidelines. Article 12(1) of the Constitution does not provide forany situation where the authorities will have to act illegally. The safeguard• retained in Article 12(1) is for the performance of a lawful act and not to bedirected to carry out an illegal function. In order to succeed the petitionermust be in a position to place material before this Court that there hasbeen unequal treatment within the framework of a lawful act. In C. W.Mackie and Company Ltd. v Hugh Molagoda, Commissioner General ofInland Revenue and othersf2) it was stated that,
SCPathiraja V. Mannaperuma,141
Secretary, Ministry of Public Administration And Others
“But the equal treatment guaranteed by Article 12 isequal treatment in the performance of a lawful act. ViaArticle 12, one cannot seek the execution of any illegalor invalid act. Fundamental to this postulate of equaltreatment is that it should be referable to the exercise ofa valid right, founded in law in contradistinction to an illegalright which is invalid in law.”
For the aforesaid reasons I hold that the petitioner has failed to establishthe alleged violation of Article 12(1) of the Constitution. This application isaccordingly dismissed, but in all the circumstances of the case withoutcosts.
DISSANAYAKE J -1 agree.
FERNANDO, J.-1 agree.
FAROOK vs. DHARMARATNE , CHAIRMAN ,PROVINCIAL PUBLIC SERVICE COMMISSION ,U