ANANDA DHARMADASA AND OTHERS v. ARIYARATNE HEWAGE AND OTHERS

002-SLLR-SLLR-2008-V-2-ANANDA-DHARMADASA-AND-OTHERS-v.-ARIYARATNE-HEWAGE-AND-OTHERS.pdf


Ananda Dharmadasa and others v
SCArivaratne Hewage and others
ANANDA DHARMADASA AND OTHERSv
ARIYARATNE HEWAGE AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE,
BALAPATABENDI, J. ANDSRIPAVAN, J.
S.C. (F.R.) APPLICATION NO. 206/2006MAY 14TH, 2006
Fundamental Rights – Violation of Fundamental Rights guaranteed under Article12(1) of the Constitution – Equality before law – Equal treatment by law – Article126(2) of the Constitution – Time frame within which an application has to be madeto the Supreme Court.- lex non cogit ad impossibilia.
The petitioners complained that due to the non-appointment of the petitioners toClass III in the Sri Lanka Educational Administrative Service (SLEAS), therespondents had violated their Fundamental Rights guaranteed in terms of Article12(1) of the Constitution. The respondents inter alia took up a preliminary objectionthat the petition has not been filed within the time frame stipulated in terms of Article126 of the Constitution.
Held:
Although the time limit specified under Article 126(2) of the Constitution ismandatory, in cases where there is no delay or fault on the part of the petitionerand on the application of the principle lex non cogit ad impossibilia, the SupremeCourt has a discretion to entertain an application made out of time.
The concept of equality postulates the basic principle that equals should not beplaced unequally and at the same time unequals should not be treated asequals, without any purposive differentiation.
20Sri Lanka Law Reports(2008] 2 Sri LR
the object of Article 12(1) of the Constitution is to treat all persons equally, so thatthere would be equal treatment by law, unless there is some rational reason orintelligible differentia which distinguishes the persons, who have been groupedtogether to treat them differently.
Per Dr. Shirani Bandaranayake, J. –
"It has to be borne in mind that every differentiation would not constitutediscrimination and accordingly classification could be founded on intelligibledifferentia. A classification, which is good and valid cannot be arbitrary and suchclassification could be found if the following conditions are satisfied:
that the classification must be founded on an intelligible differentia whichdistinguish persons that are grouped in from others who are left out of thegroup; and
that the differentia must bear a reasonable or a rational relation to the objectsand effects sought to be achieved."
The petitioners were not qualified to have been considered for the appointmentfor the post of Class III of Sri Lanka Educational Administrative Service. In suchcircumstances, it would not be correct for the petitioners to state that there wasno justification for the treatment meted out to them.
Cases referred to:
B.M. Jayawardena v Attorney-General and others (Fundamental RightsDecisions, Voi.1 pg. 175).
A.K.T.J. Gunawardena and others v E.L Senanayake and others (FundamentalRights Decisions, supra, pg. 778).
M. Thadchanamoorthi v Attorney-General and Mahenthiran v Attorney-General(Fundamental Rights Decisions, supra, pg. 129).
K.G. Sarathchandra v The People's Bank, S.C. (Application) No. 104/2004 -S.C. minutes of 20.06.2007.
Hewakuruppu v G.A. de Silva, Tea Commissioner and others, S.C. (Application)No. 118/84-S.C. minutes of 10.11.1984.
Edirisuriya v Navaratnam and others (1985), 1 SLR 100.
Siriwardene v Brigadier J. Rodrigo (1986) 1 SLR 384.
(8a) Gamaethigev Siriwardena (1988) 1 SLR 385.
(8b) Nama Sivayam v Gunawardena (1989) 1SLR 394.
Gomez v University of Colombo (2001) 1 SLR 273.
Royappa v State of Tamil Nadu AIR 1974, S.C. 555.
Venkat Rajv State of Andhra Pradesh, AIR (1985) S.C. 724.
Ram Krishna Dalmia v Justice Tendolkar AIR (1958) S.C. 538.
APPLICATION complaining of violation of Fundamental Rights.
Ananda Dharmadasa and others v
sc Arivaratne Hewaae and others (Dr. Shirani Bandaranavake, J.)21
J.C. Weliamuna with Maduranga Ratnayake for petitioner.
Uditha Egalahewa with Ranga Dayananda for 1 st to 5th respondents.
N.M. Mohideen for 6th and 7th respondents.
Cur.adv.vult.
October 9, 2008
DR. SHIRANI BANDARANAYAKE, J.The petitioners, who are Planning Officers attached to the DivisionalEducation Offices within the purview of the Provincial Ministry ofEducation of Uva Province, complained that due to the non-appointmentof the petitioners to Class II! in the Sri Lanka Educational AdministrativeService (hereinafter referred to as SLEAS) with effect from 10.11.1999,the respondents had violated their Fundamental Rights, guaranteed interms of Article 12(1) of the Constitution.
This Court granted leave to proceed for the alleged infringement ofArticle 12(1) of the Constitution.
The facts of this application, as submitted by the petitioners, albeitbrief, are as follows:
The petitioners had joined the public service as Graduate AssistantTeachers, as set out in the following table:
The then Deputy Director of Education of Badulla, by his letterdated 06.03.1992 had called for applications from teachers in theUva Province to be attached to Divisional Education Offices asPlanning Assistants (P2). In terms of the said letter only Graduate
School Date of appointment
1st petitioner Badulla Nagolla Vidyalaya 02.01.1984
2nd petitioner Monaragala Viharagala Vidyalaya 04.12.1985
3rd petitioner Karawila Kanishta Vidyalaya 26.04.1982
4th petitioner Bulupitiya Kanishta Vidyalaya 16.08.1987
5th petitioner Kandakepuulpatha Maha Vidyalaya 16.04.1985
6th petitioner Ampara Galapitigala Maha Vidyalaya 01.10.1979
7th petitioner Badulla Wewegama Maha Vidyalaya 26.12.1985
8th petitioner Kudalunuka Kanishta Vidyalaya 02.01.1984
9th petitioner Kehelpotha Yaya 12 Kanishta Vidyalaya 27.12.1984
22Sri Lanka Law Reports[2008] 2 Sri L.R
Teachers were eligible to be considered for the posts of PlanningAssistants and the purpose of recruiting such Planning Assistantsfrom and among the Assistant Teachers was to properly managethe planning units of the Divisional Education Offices. After callingthe petitioners for an interview, they had received letters from thethen Secretary to the Provincial Ministry of Education of the UvaProvince, appointing them as Planning Officers attached toDivisional Education Offices (P5). Accordingly 23 Planning Officerswere appointed to the 23 Divisional Education Offices in the UvaProvince (P6).
By the decision dated 03.08.1994, the then Cabinet of Ministershad approved a Cabinet Memorandum submitted by the thenMinister of Education and Cultural Affairs where it was stated, interalia, that the Cabinet of Ministers had approved the creation of 375posts on a supernumerary basis in Class III of SLEAS and hadapproved the appointment to the said Class III of SLEAS, the •officers, who were performing in the scheduled posts of SLEAS andthose officers appointed to function in the posts parallel to those ofSLEAS, with effect from 01.06.1993 (P8).
The petitioners claimed that in terms of the said Cabinetdecision, the petitioners became entitled to be appointed asPlanning Officers to Class III of SLEAS with effect from 01.06.1993as they had been performing as Planning Officers, which is ascheduled post in SLEAS (P9). However, in terms of the saidCabinet decision (P8) no appointments were made to Class III ofSLEAS immediately.
By letter dated 01.09.1999 Additional Secretary (Planning andManagement) of the Ministry of Education informed all Provincialand Zonal Directors of Education to furnish details of those non-SLEAS officers, who were performing in the scheduled posts inSLEAS for the purpose of formulating a government policy inrespect of the said officers (P10).
Although the said document (p10) was received by the ZonalDirectors of Education, where petitioners were attached to, theyhad informed the petitioners that P10 was not applicable to themand consequently the Zonal Directors of Education had notsubmitted the details of the petitioners. However, the Planning
Ananda Dharmadasa and others v
SC Ariyaratne Hewage and others (Dr. Shirani Bandaranayake, J.)23
Officers of other Zones whose details had been submitted by therespective Zonal Directors of Education were called for an interviewand the petitioners on their own had submitted their details to theMinistry of Education (P11). Thereafter the Secretary to theEducation Service Committee had requested the petitioners totender several documents for verification (P12).
Subsequently the then Minister of Education and HigherEducation submitted a Cabinet Memorandum No. 87/99 dated
to the Cabinet of Ministers for approval (P13), whichwas approved on 10.11.1999 (P14). However, on 29.12.1999, thepetitioners learnt that 12 Planning Officers were appointed to ClassIII of SLEAS (P15).
The remaining 11 officers were not appointed and they hadmade representations to the authorities resulting in two interviewsbeing held in year 2000 and in 2001 (P16, P17(a), P17(b)). Sincethe outcome of the interviews were not disclosed, one of thepetitioners had made representations to the Ombudsman (P19)and the Ombudsman had directed the relevant authorities that thequalified officers must be appointed.
Since the petitioners were not appointed, they wrote to therelevant provincial authorities, which were forwarded to the PublicService Commission (P22). Thereafter, a Senior AssistantSecretary of the Ministry of Education, by his letter dated23.05.2006 (P23) had informed that the Public Service Commissionhad declined to implement the Cabinet decision, marked P8. Thepetitioner's position is that this application was filed on 13.06.2006,on the basis of the aforementioned letter.
When this matter was taken up for hearing, learned Senior StateCounsel for the respondents took up a preliminary objection thatthe petition has not been filed within the time frame stipulated interms of Article 126 of the Constitution. The contention of thelearned Senior State Counsel for the respondents was that thepetitioners were aware that in or around 29.12.1999 that 12Planning Officers were appointed to Class III of the SLEAS,pursuant to the Cabinet decision of 03.08.1994 (P8), but they hadcome before this Court only on 13.06.2006. Accordingly thecontention of the learned Senior Counsel was that this applicationshould be dismissed in limine.
24Sri Lanka Law Reports[2008] 2 Sri L.R
Article 126 of the Constitution deals with the fundamental rightsjurisdiction and its exercise and Article 126(2) specifically dealswith the time frame within which an application has to be made tothe Supreme Court. Article 126(2) of the Constitution thus statesthat,
"Where any person alleges that any such fundamentalright or language right relating to such person has beeninfringed or is about to be infringed by executiveor administrative action, he may himself or byan attorney-at-law on his behalf, within one monththereof, in accordance with such rules of Court asmay be in force, apply to the Supreme Court by way ofpetition in writing addressed to such Court prayingfor relief or redress in respect of such infringement…"(emphasis added).
The applicability of Article 126(2) of the Constitution has beenconsidered in several decided cases.
In the early decisions of B.M. Jayawardena v Attorney-Generaland others^1) and A.K.T.J. Gunawardena and others v E.L.Senanayake and others<2), the Supreme Court had held that theapplications should be dismissed as they were not made within onemonth of the petitioners becoming aware of the allegeddiscrimination against them. A similar view was taken byWanasundara, J. in M. Thadchanamoorthi v Attorney-General andMahenthiran v Attorney-General.
Accordingly, as stated by Bandaranayake, J. in K.G.Sarathchandra v The People's BanW) it is apparent that the Courthas constantly proceeded on the basis that the time limit of onemonth in terms of Article 126(2) of the Constitution is manda-tory.
The decision in K.G. Sarathchandra (supra), also noted theinstances in which the Court could exercise its discretion in theapplicability of Article 126(2) of the Constitution.
For instance, in Mahenthiran v Attorney-General (supra) and inHewakuruppu v G.A. de Silva, Tea Commissioner and otherd5), this
Ananda Dharmadasa and others v
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Court had noted that although in terms of the provisions of Article126(2) of the Constitution, an application regarding a violation ofFundamental Rights should be filed within one month of the allegedinfringement, the Court has a discretion 'in a fit case, to entertain anapplication made outside the specific time of one month'. However, forthat discretion to be exercised, the Court had held that, it is necessaryfor the petitioners to provide an adequate excuse for the delay inpresenting the petition. This position was discussed in details inEdirisuriya v Navaratnam and others<6), where it was held that,
"The time limit of one month set out in Article 126(2) of theConstitution is mandatory. Yet, in a fit case the Court wouldentertain an application made outside the limit of one monthprovided an adequate excuse for delay could be adduced.
If the petitioner had been held incommunicado, the principlelex non cogit ad impossibilia would be applicable."
This position was reaffirmed in Siriwardene v Brigadier J.Rodrigd7), where it was further emphasized that an applicationregarding any infringement must be filed within one month from thedate of the commission of the administrative or executive act, but if thepetitioner establishes that he had become aware of the allegedinfringement only on a later date, the one month will run from thatdate.
The watershed of all the decisions, which considered theapplicability of Article 126(2) of the Constitution, in my view, wasGamaethige v SiriwardenaiQ*), which brought in a new approach ininterpreting the said provision.
Considering the question of the applicability of Article 126(2) of theConstitution, Mark Fernando, J., referred to the Judgments, whichhad discussed the constitutional provision pertaining to time limit andstated that,
"The time limit of one month prescribed by Article 126(2)has thus been consistently treated as mandatory; wherehowever by the very act complained of as being aninfringement of a petitioner's fundamental right, or by anindependent act of the respondents concerned, he isdenied such facilities and freedom (including access to
26Sri Lanka Law Reports[2008] 2 Sri L.R
legal advice) as would be necessary to involve thejurisdiction of this court, this court has discretion, possiblyeven a duty, to entertain an application made within onemonth after the petitioner ceased to be subject to suchrestraint The question whether there is a similar discretionwhere the petitioner's failure to apply in time is on accountof the act of a third party, or some natural or man-madedisaster, would have to be considered in an appropriatecase when it arises …. While the time limit is mandatory,in exceptional cases on the application of the principle lexnon cogit ad impossibilia, if there is no lapse, fault or delay,on the part of the petitioner, this court has a discretion toentertain an application made out of time."
This position was well considered and adopted by Sharva-nanda, C.J., in Nama Sivayam v Gunawardena(6b where it wasclearly stated that Article 126(2) must be given a generous andpurposive construction. It was further held that,
"To make the remedy under Article 126 meaningful to theapplicant, the one month prescribed by Article 126(2)should be calculated from the time that he is under norestraint. If this liberal construction is not adopted forpetitions under Article 126(2) the petitioner's right to hisconstitutional remedy under Article 126 can turn out to beillusory …. A literal interpretation, of the period oflimitation will defeat the petitioner's right to hisconstitutional remedy."
Accordingly, on a careful consideration of all these decisions, itis quite clear that although the time limit specified under Article126(2) of the Constitution is mandatory, in cases, where there is nodelay or fault on the part of the petitioner and on the application ofthe principle lex non cogit ad impossibilia, the Supreme Court hasa discretion to entertain an application made out of time.
In this matter, the petitioners in their petition dated 13.06.2006, hadclaimed that, in terms of the Cabinet decision of 03.08.1994 (P8), thepetitioners became entitled to be appointed to Class III of SLEAS witheffect from 01.06.1993. Thereafter, the petitioners had learnt thatsome of the Planning Officers of other zones, whose details were
Ananda Dharmadasa and others v
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submitted by the respective Zonal Directors of Education, were calledfor interviews and the petitioners had tendered their details to theMinistry of Education in November 1999 (P11).
The said details were sent by the Zonal Directors of Educationon the basis of a letter dated 01.09.1999 by the AdditionalSecretary (Planning and Management) of the Ministry of Education,who had requested from all Provincial and Zonal Directors ofEducation to furnish details of those non-SLEAS officers, who wereperforming in the scheduled posts in SLEAS, for the purpose offormulating a government policy regarding these officers' pro-motions.
Accordingly, the petitioners were aware by September 1999 thatthey were not entitled to be considered for the appointments toClass III of the SLEAS in terms of the Cabinet decision of03.08.1994 (P8).
During the said period, the then Minister of Education andHigher Education had submitted a Cabinet Memorandum No.87/99dated 03.11.1999 to the Cabinet of Minister for approval, whichsought inter alia that the officers performing in the scheduled posts,to be appointed to Class III of SLEAS on supernumerary basis(P13).
The petitioners having made the aforementioned submissionhad categorically stated that, on or about 29.12.1999, they hadlearnt that 12 Planning Officers were appointed to Class III ofSLEAS, although the petitioners had not even received a responseto their applications. In support of their contention, the petitionershad filed a true copy of a letter of appointment issued to one of thesaid 12 Planning Officers (P15). This document dated 24.12.1999states that in terms of the approval granted by the Cabinet ofMinisters dated 10.11.1999, recipient of that letter (P15) has beenappointed to Class III SLEAS on supernumerary basis with effectfrom 10.11.1999.
Accordingly, the petitioners had prayed that they be appointedas Assistant Directors (Planning) Class III of SLEAS with effectfrom 10.11.1999.
28Sri Lanka Law Reports[2008] 2 Sri L.R
It is therefore not disputed that by 29.12.1999, the petitionershad known that the appointments to Class III of SLEAS were madeto 12 Planning Officers.
Notwithstanding the above, since 29.12.1999, the petitioners, ashas been referred to earlier, had embarked on a voyage to obtainadministrative relief without endevouring to invoke the fundamentalrights jurisdiction guaranteed in terms of Article 126(2) of theConstitution.
In Gamaethige v Siriwardena (supra), Mark Fernando, J. hadclearly stated that the time limit prescribed by Article 126(2) of theConstitution begins to run when the infringement takes place and inpursuit of other remedies, does not prevent or interrupt theoperation of the time limit specified in Article 126(2) of theConstitution.
This position, as referred to in K.G. Sarathchandra v ThePeople's Bank (supra), was clearly stated in Gomez v Universityof Colombo(9).
In that matter, the petitioner was appointed as a ProbationaryLecturer in Law in the University of Colombo by letter dated03.04.1990. In terms of clause 8 of the said letter, the petitionerwas required to pass the prescribed proficiency test inSinhala/Tamil within a period of one year or obtain exemptionfrom sitting the test by teaching in Sinhala or Tamil during the firstyear of appointment. Clause 8 also stipulated that failure to passthe proficiency test or to gain exemption, would result in thetermination of appointment without compensation. Even by
the petitioner had not complied with the aforesaidconditions of appointment. He did not sit for the proficiency testnor did he lecture in Sinhala.
Accordingly by letter dated 23.08.1999, the Vice Chancellor ofthe University informed the petitioner that the Council haddecided to terminate the petitioner's services with effect from
for non-compliance with his letter of appointmentdated 02.04.1990. The petitioner complained that the saidtermination of his services was in violation of his fundamentalrights guaranteed in terms of Article 12(1) of the Constitution.
Ananda Dharmadasa and others v
SC Arivaratne Hewaoe and others (Dr. Shirani Bandaranayake, J.)29
This Court held that the termination was a consequence of hisfailure to comply with Clause 8 of his letter of appointment dated03.04.1990 and if he was complaining of such clause then heshould have challenged the said clause within one month fromthat date. The petitioner in Gomez v University of Colombo(supra) had come before this Court only on 23.09.1999. In thecircumstances, the Court dismissed the application on the basisthat the application was time barred.
In the present application, as stated earlier, the petitionerswere aware that the letter dated 01.09.1999 (P10) was notapplicable to them and accordingly that they were not consideredfor the appointments to Class III of the SLEAS as contemplatedby the Cabinet decision of 03.08.1994 (P8). Moreover, thepetitioners had become aware in or around 29.12.1999 that 12Planning Officers were appointed to Class III of the SLEASpursuant to the aforementioned Cabinet decision. It is commonground that the petitioners had come before this Court only on
On a consideration of the aforementioned, it isapparent that the petitioners had not invoked the fundamentalrights jurisdiction guaranteed to them, in terms of the provisionsstipulated in Article 126(21 of the Constitution.
in the circumstances, for the reasons stated above, I upholdthe preliminary objection raised by the learned State Counsel forthe respondents.
Although this application could be dismissed in limine on thebasis of the preliminary objection raised by the learned SeniorState Counsel for the respondents, both parties were heard onthe merits of the matter. I would therefore, now turn to considerwhether there was a violation of the petitioner's fundamentalrights guaranteed in terms of Article 12(1) of the Constitution.
The petitioners' complaint is that out of the 22 officers whowere similarly circumstanced, only 12 were appointed to Class IIIof SLEAS on 10.11.1999.
Admittedly, the petitioners were appointed as Planning Officersattached to the Divisional Education Offices of the Uva Provincewith effect from 04.10.1992 and the said letters were issued bythe then Secretary to the Ministry of Education of the Uva
30Sri Lanka Law Reports[2008] 2 Sri L.R
Province (P5). However, it is to be noted that the said letters ofappointment (P5) had clearly indicated that the petitioners wereonly attached to the Zonal Department of Education as PlanningOfficers, in order to assist the Zonal Directors of Education.Except for the said attachment there was no such absorption atthat point of the petitioners to the SLEAS.
The petitioners' allegation was that in terms of the Cabinetdecision dated 03.08.1994 (P8) and Cabinet decision dated
(P14) they were entitled to be appointed to Class IIIof SLEAS.
The Cabinet decision of 03.08.1994 (P8), which was latersuspended by a subsequent Cabinet decision of 31.08.1994refers to the ‘appointment to Class III of the Sri Lanka EducationalAdministrative Service of the Performing Circuit EducationOfficers (Assistant Directors of Education), the officersperforming in the scheduled posts of the Sri Lanka EducationalAdministrative Service and those officers appointed to function inthe posts parallel to those of the Sri Lanka EducationalAdministra five Service
The Cabinet decision of 10.11.1999 (P14), on which thepetitioners have relied upon, refers to the 'appointment of theofficers performing in the posts relating to different subject areas,in the special cadre of the Sri Lanka Educational AdministrativeService into the permanent cadre of the Sri Lanka EducationalAdministrative service1.
The Cabinet decision of 10.11.1999 (P14) as well as theCabinet Memorandum of 03.11.1999 (P13), however hadcategorically stated that these appointments would be made on asupernumerary basis provided that such officers are found to bepossessing the necessary qualifications in terms of the Minutes ofthe service. The said Cabinet decision therefore stated that,
"… approval was granted to appoint the officers into theClass III of the Sri Lanka Educational AdministrativeService as personal to them, on a supernumery basisprovided they are found to be possessing the necessaryqualifications in terms of the Minutes of the service".
Ananda Dharmadasa and others v
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Another important point in this regard was clearly stipulated inthe relevant Cabinet Memorandum of 03.11.1999 (P13). The saidMemorandum clearly stated that these appointments would begiven to officers, who have been 'appointed to perform1 in suchposts. Accordingly in order to be qualified to be considered underthe Cabinet decision of 10.11.1999 (P14), it would be necessary forthe officers to have fulfilled the following conditions:
the officers should have been appointed to perform in theposts relating to different subject areas in.the Special Cadreof the SLEAS; and
the officers should possess the necessary qualifications interms of the Minutes of the service.
A careful examination of both Cabinet decisions clearly indicatesthat the said decisions referred to officers, who had beenperforming duties in specified positions. Accordingly, the Cabinetdecision of 03.08.1994 (P8) stated that it would be applicable to’performing Circuit Education Officers (Assistant Directors ofEducation) performing in the scheduled posts of the SLEAS'. TheCabinet decision of 10.11.1999 (P14) on the other hand referred toofficers performing in the posts relating to different subject areas, inthe Special Cadre of the SLEAS.
It is not disputed that the petitioners only held substantivepositions of Assistant Teachers at the time they were attached tothe Zonal Department of Education (P1 and P5). The petitionerswere to function only as Planning Officers to assist the DeputyZonal Directors of Education. Since the appointments, which weremade in October 1992, there had been no change in theirsubstantive positions. The petitioners, at no time have contendedthat they have functioned in any other position other than in theposts of Assistant Teachers and Planning Officers.
It is in the light of the above, that it would be pertinent toconsider the application made by the 1st petitioner on 29.11.1999(P12) in response to a letter he had received from the thenSecretary to the Education Service Committee requiring the 1stpetitioner to tender documents for verification. This was inresponse to a letter sent by the petitioners, when they had becomeaware that other officers had been called for interviews (P11).
It
The letter further indicated that along with the other details, the1st petitioner should forward the copy of the letter of appointmentto the post of performing Assistant Director of Education.
It is therefore apparent that in terms of the Cabinet decision of
(P14) only the performing Assistant Directors ofEducation were qualified to be considered for appointment to ClassIII of SLEAS. The petitioners admittedly were only performingfunctions as Planning Officers and had been only assisting theZonal Director of Education in the Uva Province and were notqualified to have applied for the appointment to Class III of SLEAS.
The petitioners alleged that their fundamental rights guaranteedin terms of Article 12(1) were violated as there was no justificationfor the non-appointment of the petitioners to Class III of SLEAS andsince 12 Planning Officers were appointed to Class III of SLEAS,that the petitioners were discriminated against and were singledout.
Article 12(1) of the Constitution which deals with the right toequality, reads as follows:
"All persons are equal before the law and are entitledto the equal protection of the law."

32Sri Lanka Law Reports(2008] 2 Sri L.R
The application that was sent to the 1st petitioner clearly statedthat applications were only being considered from among thoseperforming as Assistant Directors of Education. In fact the letterdated 29.11.1999 (P12) clearly indicates that, it was sent as theyhad received information to the effect that the 1st petitioner hasbeen functioning as an Assistant Director of Education. Therelevant parts of the said letter are as follows.
Ananda Dharmadasa and others v
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The concept of equality postulates the basic principle thatequals should not be placed unequally and at the same timeunequals should not be treated as equals, referring to this conceptBhagawati, J. in Royappa v State of Tamil A/ac/t/10), had stated thatequality, which is a dynamic concept is antithetic to arbitrariness. Inhis words,
"Equality is a dynamic concept with many aspects anddimensions and it cannot be 'cribbed, cabined andconfined' within traditional and doctrinaire limits. From apositivistic point of view, equality is antithetic toarbitrariness. In fact equality and arbitrariness are swornenemies."
The object of Article 12(1) of the Constitution is to treat allpersons equally, so that there would be equal treatment by law,unless there is some rational reason or intelligible differentia whichdistinguishes the persons, who have been grouped together totreat them differently (Venkata Rajv State of Andhra Pradeshb').
It also has to be borne in mind that every differentiation wouldnot constitute discrimination and accordingly classification could befounded on intelligible differentia. As stated in Ram Krishna Dalmiav Justice TendolkaW a classification, which is good and validcannot be arbitrary and such a classification could be found if thefollowing conditions are satisfied:
that the classification must be founded on an intelligibledifferentia which distinguish persons that are grouped in fromothers who are left out of the group; and
that the differentia must bear a reasonable or a rationalrelation to the objects and effects sought to be achieved.
The contention of the petitioners was that 12 officers wereselected to be appointed to Class III of SLEAS and that thepetitioners and those 12 officers, belonged to one group. Therefore,the petitioners claimed that by the non-selection of the petitionersto Class III of SLEAS, the respondents had singled them outand that such decision is in violation of Article 12(1) of theConstitution.
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Considering the circumstances of this matter, it is obvious thatthe intention of the respondents was to select the persons, whowere suitably qualified and they had decided not to select thepetitioners since they were not qualified for Class III of SLEAS. Theright to equality, as stated earlier, means that, equals should not betreated unequally and at the same time unequals cannot be treatedequally, without any purposive differentiation. In this matter it isquite clear that the petitioners and the 12 officers, who wereselected to Class III of SLEAS do not belong to the same category.Moreover it is to be noted that the said 12 officers, who had beenappointed were not made respondents in this application. Also, noparticulars of the said officers' qualifications and the basis on whichthey were absorbed into the Department of Education wererevealed by the petitioners. In such circumstances, it would neitherbe possible nor relevant to consider them with the petitioners asthere is no material to indicate that the said officers and thepetitioners were similarly circumstanced. More importantly, aspointed out earlier, it was quite clear that the petitioners were notqualified to have been considered for the appointment for the postof Class III of SLEAS. In such circumstances it would not be correctfor the petitioners to state that there was no justification for thetreatment meted out to them.
For the reasons aforementioned, I hold that the petitioners havenot been successful in establishing that their fundamental rightsguaranteed in terms of Article 12(1)had been violated by therespondents. The application is accordingly dismissed.
I make no order as to costsBALAPATABENDI, J. – I agree.
SRIPAVAN, J. – I agree.
Application dismissed.