AUGUSTINE PERERA AND OTHERS v. RICHARD PATHIRANA, MINISTER OF EDUCATION

016-SLLR-SLLR-2003-1-AUGUSTINE-PERERA-AND-OTHERS-v.-RICHARD-PATHIRANA-MINISTER-OF-EDUCATION.pdf


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Augustine Perera and others v Richard Pathirana,
Minister of Education and others (Fernando. J.)
125
AUGUSTINE PERERA AND OTHERS
v.RICHARD PATHIRANA, MINISTER OF EDUCATION AND
OTHERS
SUPREME COURTFERNANDO, J.
GUNASEKERA, J., ANDWEERASURIYA, J.
SC (FR) No. 453/97
WITH SC (FR) Nos, 454/97, 390/99 AND 362/9911TH DECEMBER, 2002
Fundamental Rights – Salary scales of school principals and teachers-Discriminatory differential in favour of teachers – Article 12 (1) of theConstitution – responsibility of the executive to Parliament – Articles 42 and 43of the Constitution – Whether judicial review of executive decisions is exclud-ed by those Articles.
Prior to 1995 the salary scales for principals of schools were higher than thoseof the teachers. However, with effect from 1.1.95 new scales of teacher'ssalaries which were very much higher than those.of principals were adopted,upon the establishment of the Sri Lanka Teachers Service (“SLTS”)
The anomaly created on 1.1.95 continued until 31.12.96. The differential infavour of teachers, which prevailed between 1.1.95 and 31.12.96 was elimi-nated, prospectively, and a small differential in favour of principals wasrestored by a salary revision, but only from 1.1.97 and the principals who had
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retired before 1.1.97 demanded that their pensions and retiral benefits be com-puted on the new scales.
Held:
There was no rational basis for the failure to remedy the anomalyfor the period 1.1.95 to 31.12.96 (in respect of both serving and retiredprincipals) and that was an infringement of Article 12 (1).
The fact that the President under Article 42 and the Cabinet underArticle 43 are responsible to Parliament does not in any way excludejudicial review under the Constitution of all executive decisions includ-ing those relating to “policy”
APPLICATION for relief for infringements of fundamental rights.
Cases referred to:
Kanagamoorthy v De Silva SC 352/99 SCM12.11.2002
Jayasinghe v Wickremanayake S.C. 770/97 SCM22.11.2000
Ramupillaiv Perera (1991) 1 Sri LR 11
Sanjeewa Jayawardena with Priyanthi Gunaratne for petitioners in 453/97,454/97 and 390/99
Upul Jayasuriya for petitioners in 362/99Harsha Fernando, State Counsel for respondents
Cur. adv. vult.
January 30,2003
FERNANDO, J.
These four applications were taken up together as the samequestion was involved.
The All Ceylon Principals’ Service Union was the Petitioner inSC (FR) Application No 454/97 as well as the 1st Petitioner in SC(FR) Application No 390/99. The Secretary of that Union was the
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Minister of Education and others (Fernando, J.)
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Petitioner in SC (FR) Application No. 453/97 and also the 2ndPetitioner in SC (FR) Application No. 390/99. SC (FR) Application No362/99 was filed by 75 Principals who had retired between 6.10.94and 31.12.96.
The Petitioners stated that for many years prior to 1995 thesalary scales of Principals of school – who were in the Sri LankaPrincipal’s Service (“SLPS”) – were generally higher than those ofTeachers; that the Sri Lanka Teachers’ Service (“SLTS”) was estab-lished with effect from 6.10.94; that new salary scales were laid downfor Teachers, which were considerably higher than those ofPrincipals; and that although it was admitted and acknowledged thatthis was an anomaly it was not remedied until new salary scales wereapproved by the Cabinet of Ministers on 24.2.99 effective 1.1.97.They complain that the failure to make those salary scales retro-spective to 1.1.95 was in violation of their fundamental rights underArticle 12 (1)
The Respondents averred that certain categories of Teachershad enjoyed higher salaries than Principals Grade III even before theSLTS was established. However they did not claim that any Teacherswere paid more than Principals Grade I or II. To that extent at leastthere is no doubt that Principals did enjoy a favourable salary differ-ential vis-a-vis Teachers before 1.1.95.
The Petitioner’s grievance is apparent upon a comparison ofthe respective salary scales prior to 1.1.95 and after 1.1.97. ThePrincipals’ salary scales as at 24.12.92 (as amended on 8.3.93)were.
Grade I45,120-6×1200,3×1560-57,000
Grade II42,720-6×1200,1×1560-53,880
Grade III37,200-4×780,9×1200-51,120
The Teachers’ new salary scales, effective 1.1.95, were:
Class 1105,000-10×4800-153,000
Class 2-I80,400-7×3000-101,400
Class 2-II53,880-15×1560-77,280
Class 3-I42,720-12×1200 – 57,120
Class 3-II32,520-10×780,2×1200-42,720
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Thus the salary differential in favour of Principals was notmerely eliminated but reversed, very drastically. A Principal Grade Iwas placed on a much lower scale than a Teacher Class 2-II.Nevertheless no attempt was made to revise the salary scales ofPrincipals at the same time.
The Petitioners submit that the legitimacy of their grievancewas throughout accepted. Thus in a Cabinet Memorandum dated
the 1st Respondent, the Minister of Education, referred tothe new salary scales of Teachers, and stated:
“It was intended to re-structure the [SLPS] to provide for
the revision of the [SLPS] salary scales…. However, since thishas been referred to the National Salaries Commission, thisMinistry has not been able to take action to re-structure the
[SLPS]. As a result the Principalsare paid much less than
the Teachers. The position prevailing earlier was that thePrincipals entrusted with management of schools were paida higher salary than… Teachers. To remedy this anomaly it isrecommended to pay the salary scales of the [SLTS] to thePrincipals of Schools pending the re-structuring of the[SLPS]’ [emphasis added]
On 28.2.1996 the Cabinet approved the implementation of the1st Respondent’s proposal with effect from 1.1.95, but decided thatto meet the additional expenditure the Ministry should utilize the sav-ings under other Heads, and did not agree to a supplementaryEstimate being presented due to budgetary constraints.
It is thus clear that the Cabinet agreed even then that grantinghigher salary scales to Principals (vis-a-vis Teachers) was justified,that granting higher salary scales to Teachers was therefore an“anomaly”, that this anomaly should be removed upon the restruc-turing of the SLPS, and that pending such restructuring, Principalsshould be placed on the same salary scales as Teachers.
Thereafter Public Administration Circular No 2/97 dated
prescribed new salary scales (effective 1.1.97) for Principalsand Teachers:
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Principals
Class 1T-16-6123,480-10×5520-178,680
Class 2-IT-16-5117,960-10×5520-173,160
Class 2-IIT-16-490,420-7×3000-111,420
Class3T-16-367,320-12×2460-96,840
Teachers
Class 1T-16-5Class 2-1 T-16-4Class 2-II T-16-3Class 3-1T-16-2Class 3- IIT-16-1
55,140-9×1320,8×1560-79,50045,900-14×1320,6×1560-73,740
However, that Circular was immediately followed by a letterdated 13.2.97 from the 5th Respondent, the Director-General ofEstablishments, stating that Principals Grade I and II would all beplaced on the scale T-16-4 until the SLPS was restructured. ThusPrincipals Class I were again placed lower than Teachers Class I.
The 1 st Respondent then submitted a Cabinet Memorandumdated 23.2.99 seeking approval:
to place Principals Grade I and II (equivalent to PrincipalsClass I and 2 on the Scale 105,000-153,000, and PrincipalsGrade III on the scale 80,400 (-101,400), to convert “thesalary in terms of Chapter VII of the Establishments Codeand to place all officers at the initial of the respective salaryscale”, and to make payment in terms of those salary scaleswith effect from 1.1.95, the arrears for 1.1.95 to 31.12.96being payable in 36 instalments;
to revise the pensions paid to Principals who retired between6.10.94 and 31.12.96 in terms of the aforesaid salary scales;and
to approve the draft Minute of the SLPS with effect from
and to convert the salaries of the Principals in terms ofCircular No 2/97 for the period after 1.1.97.
The Cabinet approved those proposals on 24.2.99.
Thus the dfferential in favour of Teachers, which prevailedbetween 1.1.95 and 31.12.96 was eliminated, prospectively, and asmall differential in favour of Principals was restored, but only from1.1.97. In response to a specific question, learned Counsel for thePetitioners stated that the Principals do not question the salaryscales, the adequacy of the differential, and the manner in which pay-ments were made, but only urged that the new scales should have
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been made retrospective to 1.1.95, and claimed arrears on thatbasis. Learned Counsel who appeared for the Principals who hadretired before 1.1.97 contended that their pensions and retiral bene-fits should be computed on the new scales.
Since the Petitioners did not contest the salary differentialembodied in Circular 2/97 and the Cabinet decision of 24.2.99, it fol-lows that they accepted a salary structure in which (a) Principals ofthe highest Class (or Grade) enjoy a salary scale higher than allTeacers, (b) Principals of the second highest Class have the samesalary scale as Teachers of the highest Class, (c) Principals of thethird highest Class have the same salary scale as Teachers of thesecond highest Class, and so on. In regard to (a), the differential wasequivalent to one increment on the salary scale T-16-5, namely Rs5,520 p.a.
In consequence of the Cabinet decisions of 24.2.99, conditions(b) and (c) above were satisfied for the period 1.1.95 to 31.12.96. Inregard to condition (a) the position was that a differential was recog-nized for the period before. 1.1.95 and for the period after 1.1.97- butnot for the period 1.1.95 to 31.12.96. The Cabinet decision of 28.2.96shows that the Cabinet refrained from fully remedying the anomalyonly because restructuring was pending, and equalized salaries as atemporary measure. The subsequent Cabinet decision and the affi-davits filed on behalf of the Respondents disclose no rational basisfor the failure to remedy the anomaly for the period 1.1.95 to31.12.96, and that was an infringement of Article 12 (1).
Learned State Counsel made several submissions which theRespondents had not urged in their pleadings (and, indeed,incom-sistent with those pleadings): that the SLPS and the SLTS were sep-arate structures (citing Kanagamoorthyv de S//va<1)) and that accord-ingly there was no need to compare the salary scales of the SLTSwhen determining those of the SLPS; that the decision of the Cabinetnot to grant a salary differential to Principals Class 1 was a “policy”decision which this Court could not and/or should not review, as theremedy lay in the hands of Parliament” because the Cabinet was“collectively responsible and answerable to Parliament” under Article42; and finally that the circumstances which justified a salary differ-ential before 1.1.95 may not have existed after 1.1.95.
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In Kanagamoorthyv de Silva, (supra) a complaint by membersof the Sri Lanka Education Administrative Service (“SLEAS”) as tothe adequacy of the differential between their salary scales and thoseof the SLPS, was rejected on the basis that;
these two services are being treated as two different ser-vices since the salary restructuring in 1995. The salary struc-ture of the SLTS further confirms the fact that each servicenow is not a promotional grade of the other, but has a differ-ent status and standing in its own in the hierarchy of theEducation and Educational Administration of the country…
…It is not disputed that there are three separate services inthe Education sector, which comprises of Teachers,Principalsand Education Administrators… each service is a separateentity governed by a Service Minute with its own salary struc-ture….”
I do not agree that the mere fact that the SLPS and SLTS aredifferent services precludes comparison of salary scales and thegrant (or the maintenance) of a salary differential were justified.Dealing with the determination of the comparative salary scales ofover a dozen different services in the Health sector, this Court held inJayasinghe v Wickremanayakd2)-.
it appears that the ministerial sub-committee has. not givenits careful consideration to the classification of these para medicalofficers who yvere recruited from a common examination to differentcategories of service. Accordingly it is obvious that the job contents,level of responsibility, knowledge, skills and aptitude must be givendue consideration in determining the different categories as well astheir salary scales.":
, It is not only legitimate but sometimes essential to compare thesalary scales of different services in order to determine salary scales(haying regard to the required qualifications, knowledge, experience,skills, functions, responsibilities, etc) and salary differentials.Besides, it is clear that the Minister of Education and the Cabinet ofMinisters did recognize that, having regard to the role and responsi-bilities of the Principal of a school, a salary differential was justified.That had been recognized before 1.1.95, arid there is no'basis forlearned State Counsel’s speculation that the circumstances, after
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1.1.95,might have been different to those before. Since there was norational basis for refusing such recognition only for the period 1.1.95to 31.12.96, such recognition must extend to that period as well.
Finally, it is no doubt true that the Executive-the Presidentunder Article 42, and the Cabinet as a whole under Article 43-isresponsible to Parliament. However, those provisions do not meanthat Parliament is the only institution empowered to review executivedecisions, and do not in any way exclude judicial review, under andin terms of the Constitution, of all executive decisions, includingthose relating to “policy” (as for instance in Ramupillai v Perera (3>),particularly on the ground of infringement of fundamental rights. Inany event, the decision impugned in this case-that the new salaryscales of Principals Class I should not be retrospective – is an ad hocdecision, and by no stretch of the imaganation a matter of “policy”
There remain two aspects where there is some uncertainty.One is the basis of conversion to the 1.1.95 and 1.1.97 sacles, andthe other is the date of conversion. In those respects Principalsshould not be treated less favourably than Teachers.
I hold that the Petitioners have established an infringement oftheir fundamental rights under Article 12 (1), and that Principals inGrade (or Class) I must be allowed a salary differential equivalent toone increment on the salary scale of Teachers Class 1, and placedon the salary scale 109,800- 10×4800-157,800 for the period 1.1.95to 31.12.96. Principals who retired between 6.10.94 and 31.12.96shall also be entitled to have their pensions and retiral benefits cal-culated on the basis of those salary scales. Principals shall be placedon the 1995 and 1997 scales in terms of the applicable provisions ofthe Establishments Code, but on a basis not less favourable thanthat adopted in the case of Teachers, and on the same dates as forTeachers. If there is any doubt or difficulty, the parties may apply tothis Court. The State shall pay the Petitioners in each case a sum ofRs, 25,000 as costs, i.e. Rs 100,000 in all, before 31.3.2003.
GUNASEKERA, J.I agree.
WEERASURIYA, J.I agree.
Relief granted.