Almeida v. Ceylon Fisheries Corporation and Others
v.CEYLON FISHERIES CORPORATIONAND OTHERS
SUPREME COURTDHEERARATNE, J„
ANANDACOOMARASWAMY, J. ANDGUNASEKERA, J.
S.C. APPLICATION NO. 310/97 (FR)
MAY 13, 1998.
Fundamental rights – Refusal to grant an extension of service – Discretion ofthe appointing authority – Art. 12 (1) of the Constitution.
The petitioner was the Marketing Manager of the 1st respondent corporation. Onreaching the age of 55 years which was the age of optional retirement, he appliedfor an extension of service for one year. The petitioner's application was rejectedby the Board of Directors of the 1st respondent corporation having regard to thefact that there was a criminal prosecution pending against the petitioner and thathis service was not indispensable.
There was a discretion vested in the Board of the 1st respondent corporationto grant or refuse an extension of service after an officer reached the optionalage of retirement. The decision of the Board to refuse an extension of serviceto the petitioner could not be said to be arbitrary or capricious and violative ofArticle 12 of the Constitution.
Sri Lanka Law Reports
 3 Sri LR.
APPLICATION for relief for infringement of fundamental rights.Upul Jayasuriya with P. Radhakrishnan for petitioner.Shavindra Fernando SSC for Attorney-General.
Cur. adv. vult.
June 8, 1998.
The petitioner who was the Marketing Manager of the 1st respondentCorporation complains of the violation of his fundamental rightsguaranteed under Articles 12 (1) and 12 (2) of the Constitution bythe Corporation's refusal to grant him an extension of service for oneyear from 1.1.97 on his reaching the age of 55 years.
The petitioner had been appointed to the post of Marketing Officerin Grade IX of the Fisheries Corporation with effect from 26.7.1965by a letter of appointment marked 'P1'. Over the years he had beenpromoted to higher grades and had been appointed to the post ofMarketing Manager, Grade I, with effect from 1.11.1986 by a letterof appointment 'P3' dated 11.11.1986 and thereafter had been pro-moted to a special grade executive post with effect from 1.1.1996by letter 'P4'.
It is to be noted that none of the letters 'Pi'P3' & 'P4' specifyan age of retirement but however, 'P4' & ’P3' refer to the terms andconditions specified in the original letter of appointment 'P1 Clause2 of *P11 issued to the petitioner inter alia states: “you will be subjectedto the administrative, financial and disciplinary Orders of the Corpo-ration and any other Orders issued from time to time by or on behalfof the Board" and Clause 16 states: “after you are confirmed in yourappointment your employment is terminable on the giving of threemonths' written notice or on the appointment of three months' salaryin lieu thereof on either side".
By a notice dated 19.3.1996 marked 'P5‘ the 4th respondent hadnotified all Staff Officers who intended to continue in service in the1 st respondent Corporation after attaining 55 years of age to forwarda request indicating their desire to continue in service 6 months priorto reaching 55 years. Since the petitioner would have reached 55 years
Almeida v. Ceylon Fisheries Corporation and Others
of age on 1.1.97 he had by letter 'P6' dated 2.6.96 requested thathe be granted an extension of service for one year from 1.1.97. Thepetitioner had been informed by the 4th respondent by 'P7' dated14.11.96 that his application for an extension of service after 55 yearswas rejected consequent upon a policy decision taken by the Boardof Directors of the 1st respondent Corporation and that steps wouldbe taken to treat him as being retired from 1.1.97. The petitioner statesthat subsequently by an internal circular No. 97-01 dated 15.1.97marked 'P9‘ that the Common Policy Decision of the Board of Directorsof the 1st respondent Corporation not to engage employees whomsoeverbeyond the age of 55 years was amended to fall in line with aSecretarial Division Circular No. SEC 131/1 dated 26.10.65 marked‘PS' according to which the Board had decided that the age ofretirement of employees of the 1 st respondent Corporation should be(1) 55 years for optional retirement and (2) 60 years for compulsoryretirement.
It was contended for and on behalf of the petitioner that Circular'P9' further provided that those employees who had been retired onreaching the age of 55 years between December, 1996 and January,1997 could make an application for an extension of service for theconsideration by the Board, and in consequence of that provision thatthe petitioner applied for an extension of service for one year by hisletter dated 16.1.1997 marked 'P1 O' and that his request for anextension of service was rejected by the 2nd respondent by letter dated24.2.97 marked 'P2'.
It was urged by learned counsel for the petitioner that the rejectionof the application of the petitioner for an extension of service by oneyear from 1.1.97 was violative of the provisions of Articles 12 (1) and12 (2) of the Constitution since the rejection was capricious anddiscriminatory. It was submitted on behalf of the petitioner that duringhis long period of service of over 30 years that he had not been foundwanting in respect of any aspect of his work and had a reasonableexpectation of securing an extension of service after reaching the ageof 55. Further it was contended that the petitioner had been exoneratedby the Inquiring Officer who had held a disciplinary inquiry in 1991and notwithstanding the fact that the petitioner had a caseNo. B 274/94 in the Magistrate's Court of Anuradhapura which nevergot off the ground that he was promoted to a special grade executivepost with effect from 1.1.96.
Learned Senior State Counsel appearing for the respondentssubmitted that the Board at its 725th Board Meeting held on 2.9.96considered the question of granting extension of service to its
Sri Lanka Law Reports
 3 Sri LR.
employees who had reached the optional age of retirement (55 years)and decided that extension of service beyond the optional age ofretirement would be considered only in the case of employees whohad a satisfactory past record of service and whose services wereindispensable. A copy of the said Board decision had been filed alongwith the affidavit of the 4th respondent marked '4R1'. In the case ofthe petitioner it was submitted that the Board had considered hisapplication for an extension of service after 55 years and refused toaccede to his request since a criminal prosecution relating to forgerywas pending in the Magistrate's Court and that his services were notindispensable. A copy of the said Board decision dated 18.2.97 hadbeen produced marked 'X' along with a further affidavit of the 4threspondent dated 28.10.97.
Although the petitioner has referred to several persons whoseservices have been extended after reaching the optional age ofretirement in paragraph 25 of the petition the respondent's positionis that two of them, namely Titus and Weeraratne, had been grantedextensions of service prior to the Board decision '4R1' and NandasiriGunaratne and Podi Appuhamy had not been granted extensionsas averred by the petitioner. That the others have been grantedextensions of service on the basis that their services wereindispensable in accordance with the circular '4R1'.
On a consideration of the documents filed it appears that thereis a discretion vested in the Board of the 1st respondent Corporationto grant or to refuse an extension of service after an officer reachesthe optional age of retirement. The discretion is to be exercised withinthe framework of the principles laid down in the Board decision marked'4R1'. In the instant case after a consideration of the application forthe extension of the services of the petitioner the Board having hadregard to the fact that there was a criminal prosecution pending againstthe petitioner and on account of the fact that his services were notindispensable has refused to exercise the discretion in his favour andintimated the said decision by letter marked 'P2' dated 24.2.97. Thesaid decision, in my view, cannot be said to be arbitrary or capricious.Accordingly, the petitioner's application is dismissed without costs.
DHEERARATNE, J. – I agree.
ANANDACOOMARASWAMY, – I agree.