007-SLLR-SLLR-1996-V-2-ABEYSINGHE-AND-3-OTHERS-v.-CENTRAL-ENGINEERING-CONSULTANCY-BUREAU.pdf
ABEYSINGHE AND 3 OTHERS
V.
CENTRAL ENGINEERING CONSULTANCY BUREAU AND 6 OTHERS
SUPREME COURTFERNANDO J.
GOONEWARDANE, J.
WADUGODAPITIYA J.
S.C. 356/93 (FR)
MARCH 1, 1994.
Fundamental Rights – Constitution, Article 12 (1) – Eligibility – Apportion-ment of Marks – Suitability to a Post – Interview process was it flawed.
The four Petitioners allege that the 1 st Respondent has violated their fun-damental rights under Article 12 (1) by the appointment of the 5th Re-spondent as DGM (Projects) for two reasons (i) that he was not eligible (ii)that the interview process was flawed.
Held:
The documents show that soon after the 5th Respondent became amember of the Institution of Mining upon nomination by that institution, theCouncil approved his registration on 5.11.1980, and that he was formallyregistered as a Chartered Engineer on 24.3.81, and that a certificate is notissued unless applied for and the date which appears on a certificate isthe date on which such application was received, and that, the 5th Re-spondent's application for a Certificate of Registration had been receivedon 19.2.82.
These documents therefore indicate that the 5th Respondent had obtainedfull membership not later than 24.3.81. He thus satisfied the requirementsas to professional qualifications and 11 years experience thereafter.
As to the question whether the Leningrad Diploma, which the 5thRespondent holds could not be regarH-d as being a Degree in Engineer-ing or its Equivalent- it was a matter for the 1st Respondent and the Inter-view Board and as long as their decision was not perverse or unreason-able or tainted by procedural error, court would not seek to substitute itsviews. The 1st Respondent and the Interview Board, in the circumstancescould reasonably have concluded that the Leningrad Diploma was theequivalent of “a degree in Engineering from a Recognised University."
As regards the submission that the 5th Respondent did not work "inthe field" and did not have any practical experience. Rule 19 of the Institu-tion's Rules for Professional Review, prescribe as one of the requirementsfor election as a Chartered Engineer (applying as a research candidate).Not less than four years 'practical experience', and goes on to provide thatthis may include upto 3 years on research for the award of a higher De-gree.
Per Fernando, J.
‘If such periods are accepted as satisfying the requirement of Engineeringexperience, no distinction can properly be made on this basis, apart fromthat, it does not seem in any way unreasonable to treat appropriate expe-rience gained in the course of post graduate research studies in Engi-neering as being “Engineering Experience."
It is apparent that the job descriptions and the marking scheme to beapplied at the interview was not made known to the candidates prior to theinterview despite numerous requests. While it is desirable that criteria forselection and the relative weightage be disclosed in advance, particularlywhere the scheme of promotion is complex, in the present case the nondisclosure of the marking scheme in advance to all the candidates wasnot per se discriminatory or a fatal irregularity. The apportionment of markscould not be characterised as illegal or unreasonable, and the schemeitself was therefore not improper.
There was an unsatisfactory feature of the interview process, the con-cealment of the job description and the marking scheme had left room fordoubt and suspicion, but the Petitioners had not shown that this affectedtheir performance at the interview, and there is nothing to suggest that thePetitioners would have performed any better had this information beendisclosed. All candidates were equally disadvantaged in this respect.
Per Fernando, J.
"The principle of promotion by reference to seniority and merit does notmean that the needs of the institution and the Public or the demands of thepost in question must be ignored. Even if he had been given high marksnevertheless the decision not to appoint him, to a post for which he wasconsidered unsuitable cannot be considered unlawful, unfair or unrea-sonable."
AN APPLICATION under Article 126 for infringement of Article 12 (1).
Cases referred to:
Perera v Ranatunga, S.C. 121/92, SCM 27.5.92. 1993-1SLR 39.
R.K.W. Goonesekera with L.C.M. Swarnadhipathy for Petitioners.
Sathyaa Hettige S.S.C. for 1,2,3,4,5,6, Respondents.
E.D.Wikremanayake with Dr. Jayampathy Wickremaratne and Ms AnandhiCooray for 5th Respondent.
May 03, 1995.
FERNANDO, J.
Cur. adv. vult.
The four Petitioners allege that the 1 st Respondent Bureau has vio-lated their fundamental rights under Article 12(1) by the appointment ofthe 5th Respondent as Deputy General Manager, Projects, for two rea-sons : that the 5th Respondent was not eligible, and that the interviewprocess was flawed.
The Petitioners, the 5th Respondent, and five others-holding the postsof Project Manager or Specialist Engineer, which were in the samegrade- were invited to attend an interview on 24.11.92, to select twopersons for appointment as Deputy General Manager ("DGM"), andanother for appointment as Acting DGM. On 16.3.93 two persons wereappointed as DGM, Buildings, and Acting DGM, Contracts; the Peti-tioners make no complaint in respect of these appointments. On 6.7.93the 5th Respondent was appointed as DGM, Projects.
The candidates were aware of the following requirements of thescheme of recruitment:
SCHEME OF RECRUITMENT FOR ENGINEERS CIVIL/ELECTRICAL/MECHANICAL/GEOTECHNICAL
Designation of Post : Deputy General ManagerSalary Scale (Rupees) : 7,800 – 8 x 400 -11,000Qualifications
and Experience: A degree in Engineering from a recognized
University or equivalentand
full membership of a recognized Institution
of Engineers
and
18 years engineering experience aftergraduation, of which 11 years should be after full membership.
Method of Selection : Interview.
It is common ground that the Petitioners were eligible. Learned Coun-sel appearing for them subjected the 5th Respondent's qualificationsand experience to minute scrutiny. He was admitted in 1968 to theLeningrad Institute of Mining in the U.S.S.R.: after following a five-year
course in Hydrogeology and Engineering Geology, he was conferred a"Diploma with Honours” which recited that he was conferred the de-gree of Master of Geological and Mineralogical Sciences: in 1973 hewas awarded a bursary by the Department of Engineering Geology ofthat Institute to pursue research studies leading to the Ph.D.in Geol-ogy and Mineralogy, which he obtained in June 1977; he also followeda six-month postgraduate advanced training course in EngineeringGeology in the same Department from September 1976 to March 1977;and from March 1977 to March 1978 he was employed as a ResearchEngineer in the same Department. He joined the 1st Respondent inApril 1978 as a Geologist; in 1980, at his request, he was re-desig-nated as "Engineering Geologist." He was elected a Member of the(U.K) Institution of Mining and Metallurgy ("the Institution of Mining")on 21.10.1980. Thereafter he was registered by the (U.K.) Council ofEngineering Institutions ("the Council") as a Chartered Engineer; whilethe Petitioners accept that this constituted "full membership of a rec-ognized Institution of Engineers", they dispute the effective date of hisregistration. In September 1983, Engineering Geologists and Geolo-gists employed by the 1st Respondent, who were members of the In-stitution of Mining and were registered by the Council as CharteredEngineers, successfully made representations to the 1 st Respondentto change their designation to "Geotechnical Engineers".
The Petitioners contend that:
as at November 1992, the 5th Respondent did not have eleven yearsexperience after “full membership" because the effective date of suchmembership was February, 1982;
the 5th Respondent did not have eighteen years “engineering expe-rience" after graduation, because –
"graduation" meant obtaining a "degree in Engineering or equiva-lent" and the 1973 Leningrad Diploma did not satisfy this requirement;
until 1983, when the 1 st Respondent for the first time treatedGeologists as being Engineers, the 5th Respondent's work or servicecould not be regarded as “engineering" experience; and
in any event, the 5th Respondent's experience from 1973 toMarch 1978 should have been excluded as it was academic in nature;and
The interview process was fatally flawed because –
the 1 st Respondent, and the 2nd Respondent (its Chairman), didnot disclose to the candidates the job descriptions of the vacant posts,and the intended scheme of marking at the interview; and
the Interview Board did not correctly compute the marks due tocandidates in respect of seniority.
Learned Counsel for the Petitioners justifiably commented onthe 5th Respondent's failure to produce his certificate of registrationas a Chartered Engineer; and that is a document which the 1st Re-spondent and the Interview Board ought to have called for and exam-ined. However, the 5th Respondent produced two letters received byhim from the Council and the Institution of Mining (though issued onlyin September 1993, after this petition was filed), the authenticity ofwhich the Petitioners do not challenge. These documents show thatsoon after the 5th Respondent became a member of the Institution ofMining, upon nomination by that Institution, the Council approved hisregistration on 5.11.80; that he was formally registered as a CharteredEngineer on 24.3.81; that a certificate is not issued unless applied for;that the date which appears on a certificate is the date on which suchapplication was received; and that the 5th Respondent's application fora certificate of registration had been received on 19.2.82. Thus what-ever date the formal certificate bears, these documents establish that
the 5th Respondent had obtained "full membership" not later than24.3.81, and not in February 1982 as the Petitioners contend. He thussatisfied the requirements as to professional qualifications and elevenyears experience thereafter.
It was strenuously contended that the 5th Respondent's first de-gree was not in “Engineering"; that he was employed by the 1st Re-spondent as a Geologist, and not as an Engineer, until his designationwas changed in 1983; and that therefore his work, service and experi-ence prior to 1983 could not be described as “engineering " experi-ence. This submission depended on two assumptions- firstly, that “adegree in Engineering “ meant a degree in Engineering as commonlyunderstood in Sri Lanka, and included only a degree obtained after acourse of studies similar to a local course, and secondly, that thenomenclature adopted by the 1st Respondent in classifying its staffconclusively determined whether an employee was an “Engineer” orengaged in "engineering” work. Both these assumptions may well havebeen valid, for the purposes of this case, if the scheme of recruitmentand other relevant documents had expressly incorporated such restric-tions; but they did not. The heading of the scheme of recruitment madeit clear that "Geotechnical” Engineers were included; necessarily, there-fore, “Engineering" and "engineering experience" included"Geotechnical" Engineers and "Geotechnical" engineering experience;and there was no indication that this was effective only from and after1983. While it would be rash for me to attempt an exhaustive definitionof "Engineering", especially now that it is usual to speak of Bio-engi-neering, Genetic Engineering, Nuclear Engineering, Aerospace Engi-neering, etc., I must observe that the discipline of Engineering is nei-ther diminishing nor static in scope. The Encyclopaedia Britannica de-scribes "Engineering" in these terms:
"The application of scientific principles to the optimal
conversion of natural resources into structures, machines, products,
systems, and processes for the benefit of mankindThere are
traditionally four primary engineering disciplines, namely civil, mechani-cal, electrical and chemical engineering, each of them having severaldistinct specialized branches. Other important and distinct engineer-ing disciplines are concerned with mining, nuclear technology, and en-vironmental, controlBetween these diverse fields ofengineering there is inevitably some overlap of interest and expertise.It is, however, common to all branches of engineering that academictraining must begin with a thorough grounding in the fundamental prin-ciples of science, particularly mathematics and physics. Educationmay then be continued in general engineering subjects, includingdraftsmanship. There is naturally a differing emphasis in these sub-jects according to the branch of engineering selected by the student."
"Engineering Geology" is described as the scientific discipline con-cerned with the application of geological knowledge to engineering prob-lems – e.g. to reservoir design and location, determination of slopestability for construction purposes, and determination of earthquake,flood or subsidence damage in areas considered for roads, pipelines orother engineering works.
Nowadays, for practical reasons, a degree course necessarily re-quires specialization in some particular department, whether describedas "Civil", "Mechanical", “Electrical", or otherwise. A degree in Engi-neering would therefore include a degree in any area of specialization.
Learned Counsel for the Petitioners submitted that the 5th Respond-ent's Leningrad Diploma could not be regarded as being a degree inEngineering, or its equivalent, as it was a qualification in Geology, andnot in Engineering as understood in Sri Lanka. The Respondents pro-duced details of the subjects offered for that Diploma, and Counselsubmitted that these could not be considered equivalent to those pre-scribed for a local degree in Engineering. It is not for us to determine,on the merits, whether the Diploma conferred by the Leningrad Insti-tute of Mining was the equivalent of a degree in Engineering from arecognized University; that was a matter for the 1st Respondent andthe Interview Board, and as long as their decision was not perverse orunreasonable, or tainted by procedural error, this Court would not seekto substitute its views. Further, this submission assumes an unduenarrowness in the field of Engineering which is not true even locally.Thus the University Grants Commission's rules for admission to coursesfor 1990/91 refers to "Mining and Minerals Engineering " as a recog-nized field of specialization in Engineering at the University of Moratuwa.Given the emphasis on the construction of dams for irrigation and powerin Sri Lanka, in the absence of compelling reasons it would be unrea-sonable to exclude "Hydrogeology and Engineering Geology" from thediscipline of Engineering – particularly in a country proud of its ancienthydraulic civilization. The Petitioners have averred (and the Respond-ents have not denied) that the purposes for which the1 st RespondentBureau was established included:
the preparation of feasibility reports, plans, designs and esti-mates of single and multipurpose irrigation, flood control and powerprojects, highway projects, water supply and sewerage projects andsimilar engineering projects.
carrying cut investigations, studies and research required forthe preparation of feasibility reports and plans, designs and estimateson such projects.
It is also significant that the Institution of Engineers, Sri Lanka, hasconfirmed that the engineering content of the 5th Respondent's degreecourse has been accepted as satisfying the academic component forAssociate Membership of that Institution. According to the minutes ofthe Council of that Institution, produced by the Petitioners, the Councilapproved the guideline that "the academic component of a candidate'squalifications should have a substantial engineering content". The factthat the 1 st Respondent initially appointed the 5th Respondent as aGeologist does not mean either that he was not an Engineer or that hiswork was not in the field of Engineering. The Respondents have pro-duced details of the work done by him from April 1978; this includesfoundation investigations for major irrigation and power projects, thepreparation of reports on geotechnical investigations, and the supervi-sion of the construction of dams. There is nothing to suggest that itwas unreasonable to treat all this as engineering experience.
I am of the view that the 1st Respondent and the Interview Boardcould reasonably have concluded that the Leningrad Diploma was theequivalent of “a degree in Engineering from a recognized University";that the 5th Respondent graduated in 1973; that, whatever the desig-nation given by the 1 st Respondent to his post, the work done by the5th Respondent from April 1978 fell within the description of “engineer-ing experience".
It was then submitted that from 1973 to March 1978 the 5th Re-spondent did not work "in the field", and did not have any "practical"experience; that work done for postgraduate studies, research or train-ing was academic in nature, and could not be considered as "engi-neering experience". It appears, however, that the 1 st Respondent hasnot interpreted this requirement in this strict manner; thus spells ofadministrative work, such as running and maintaining a site office andquarters, administration of staff attached to the site office, and publicrelations activities, as well as periods of postgraduate study abroad,have been accepted (in regard to the 1st, 3rd and 4th Petitioners), assatisfying this requirement. Learned Counsel for the Petitioners ex-plained this as being a concession made by the 1st Respondent inrespect of periods of work or study while in its service, and not forsimilar periods before joining the 1st Respondent; and that this con-cession was made, not on account of the substance of their studies,but because they continued to be employed by the 1 st Respondent asEngineers. If such periods are accepted as satisfying the requirementof engineering experience, no distinction can properly be made on thisbasis. Apart from that, it does not seem in any way unreasonable totreat appropriate experience gained in the course of postgraduate re-search studies in Engineering as being “engineering experience". Thusthe Institution of Engineers, Sri Lanka, prescribes as one of the re-quirements for election as a Chartered Engineer (applying as a re-search candidate) not less than four years “practical" experience, andgoes on to provide that this may include "up to three years on researchfor the award of a higher degree" (see Rule 19 of the Institution's Rulesfor Professional Review). I hold that the 1 st Respondent and the Inter-view Board were entitled to take the view that the 5th Respondent hadthe required period of experience.
The Petitioners state that neither the job descriptions nor themarking scheme to be applied at the interview was made known to thecandidates prior to the interview despite numerous requests. The 2ndRespondent did not deny this, and explained that the posts of DGMwere basically managerial posts, that the duties involved changed fromtime to time, and that therefore he decided that the exact job descrip-tions could not be given. He produced two circulars issued in 1990which, he claimed, indicated how the allocation of duties had previ-ously been made. Those circulars referred to three DGMs, designated
as DGM (E & M) DGM (II) and DGM (III), and also indicated the spe-cific projects and functions allocated to each. However this would havebeen of little assistance to the candidates, and might even have beenmisleading, because the allocation of duties made immediately afterthe appointment of the 5th Respondent was quite different. As for themarking scheme, the 2nd Respondent says he decided that this shouldbe determined by the Interview Board, and that "the Interview Boardinitially deliberated and decided on the marking scheme". He also saysthat the Board applied the principle of merit and seniority, and thatcandidates were interviewed as regards their past work experience, toidentify their special aptitudes, and to ascertain their performance andsuitability. That marking scheme was as follows:
TOC o "1-5" h z Seniority-50
Engineering Experience-20
Qualifications & experience in the relevant field-10
Qualifications & experience in a connectedfield-05
Performance at the interview-15
Total-100
(Seniority – 30 marks proportionately for the first 4 years and 2marks for each additional year).
Learned Counsel for the Petitioners justifiably criticised the 2ndRespondent's explanation for the failure to disclose the job descrip-tions, correctly pointing out that the Interview Board obviously knew forwhat specific posts they were interviewing the candidates. Thus, inregard to two candidates (one of whom was the 2nd Petitioner), theInterview Board decided that each was "good, but does not fit the postsavailable"; again, the Board recommended appointments to threespecific posts – DGM Buildings, DGM Projects, and Acting DGM Con-tracts, and hence obviously it was considering candidates for thosethree posts; and finally, the Board adopted the criterion "qualificationsand experience in the relevant field", showing that from the outset itwas looking for candidates in particular "fields" and not others.
While it is desirable that criteria for selection and the activeweightage be disclosed in advance, particularly where the scheme ofpromotion is complex, in the present case the non-disclosure of themarking scheme in advance to all the candidates was not per se dis-criminatory or a fatal irregularity. Counsel conceded that the apportion-ment of marks, among the selected Criteria, could not be character-ised as illegal or unreasonable the scheme itself was therfore not im-proper. He submitted, however, that the assessment of seniority wasnot properly done, as the 1 st, 2nd and 4th Petitioners 14 or 15 years ofservice were each given 30 marks, while the 3rd Petitioner with 16years was given only eight marks for seniority. However, it turned outthat it was not seniority in overall service with the 1 st Respondent, butseniority in the grade (i.e. of Project Managers and Specialist Engi-neers) which had been taken into account. It was not unreasonable orimproper to allocate marks for seniority on that basis, and there wasno complaint of any error in computation on that basis.
The Petitioners also complain that the marks actually given to eachcandidate for "engineering experience" should have been allocatedstrictly in proportion to the length of experience and not with referenceto its quality. In my view, the Interview Board was entitled to considerboth aspects. Even if this contention of the Petitioners is correct theadditional marks which they would have obtained could not have af-fected the result. They have made no complaint in respect of any otheraspect of the allocation of marks.
There is no allegation of mala tides in regard to the interview or theselection.
The net result is that the 5th Respondent was eligible for appoint-ment but there was an unsatisfactory feature of the interview process,in that the 1 st Respondent, the 2nd Respondent and the Interview Boardthough aware which posts had to be filled, and the requirements thereof,withheld this information from the candidates. Such concealment wasunnecessary, and left room for doubt and suspicion. However the peti-tioners have not shown that this affected their performance at the inter-view; and there is nothing to suggest that the Petitioners would haveperformed any better had this information been disclosed. All candi-dates were equally disadvantaged in this respect.
The Interview Board did not record, in the form of marks its as-sessment of the 2nd Petitioner's performance: this itself is not an ir-regularity, because if, for some valid reasons a candidate is consid-ered unsuitable, it is not essential to go through the exercise of re-cording the allocation of marks because of the fact that he was invitedfor the interview does suggest that he was, prima facie, suitable, butthat is not inconsistent with a later decision, after the interview, that hewas not suitable for the available posts. The principle of promotion byreference to seniority and merit does not mean that the needs of theInstitution and the public, or the demands of the post in question, mustbe ignored (see Perera v Ranatunga (1),) Hence even if he had beengiven high marks, nevertheless the decision not to appoint him, to apost for which he was considered unsuitable, cannot be consideredunlawful, unfair or unreasonable.
It was unnecessary secrecy about the interview process and thescheme of marking that led to doubt and suspicion in the minds of thePetitioners. However, the Petitioners have not succeeded in establish-ing, on a balance of probability, that this resulted in any fundamentaldefect causing a denial of equality, I therefore hold that an infringementof Article 12(1) has not been proved, and dismiss the application with-out costs.
GOONEWARDENE, J. -1 agree.WADUGODAPITIYA, J. -1 agree.Application dismissed.