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Dayarathna and Others v. Minister of Health and Indigenous
Medicine and Others
393
DAYARATHNA AND OTHERS
v.MINISTER OF HEALTH AND INDIGENOUSMEDICINE AND OTHERS
SUPREME COURTAMERASINGHE, J.,
GUNASEKERA, J. ANDWEERASEKARA, J.
S.C. APPLICATIONS NOS. 513-528/98APRIL 1, 1999.
Fundamental Rights – Legitimate expectation – Change of Government policy -Duty to act fairly and in the public interest – Denial of expectations – Violationof the right to equality – Article 12 (1) of the Constitution.
By notification in the Gazette dated 10.05.1996 the Ministry of Health calledfor applications from persons desirous of following a course of training leadingto the award of the certificate of competency as Assistant Medical Officers.Fifteen petitioners who were eligible for enrolment to follow the course of trainingapplied in response to the notification and sat a competitive examination conductedon 27.12.1996; and they were so placed on the results of the examinationas to be qualified to follow the course of training. According to the schemepublished in the Gazette, the next step was the holding of an interview tocheck the qualifications, meaning the checking of (1) the birth certificate,(2) evidence of citizenship, and (3) certificates relating to educational qualifications.That interview was not held. Then, on 18.12.1997 the Secretary, GovernmentMedical Officers' Association (GMOA) informed the Minister of Health and Indig-enous Medicine that they desired the provision of employment to medical graduatesand saw no justification "to restart the AMP training course"; andthat their members “would not participate in any component of the trainingprogramme". Whereupon, on 11.03.1998 the Minister sought cabinet approvalto fill the existing and future vacancies in the cadre of Assistant MedicalPractitioners with Medical Graduates and to offer the petitioners the option
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of following the course for para medical services/Public Health Inspectors,if they so desire; and by a circular letter dated 20.08.1998, the petitionerswere invited to apply for training as Pharmacists, Medical Laboratory Technologistsand Public Health Inspectors. The requisite qualifications for such trainingand the course subjects are less than what are required for the AMP course.Besides, persons serving in Para Medical Services and as Public Health Inspectorsare not eligible to seek registration under the Medical Ordinance to practisemedicine and surgery whilst Assistant Medical Practitioners are eligible to seeksuch registration, subject to certain conditions.
Held:
On the facts of the case, the petitioners had a legitimate expectation that theywould, upon satisfying prescribed conditions, be provided with a courseof training for the examination leading to the award of the certificate of competencyas Assistant Medical Practitioners. The decision effecting a change ofpolicy which destroyed the expectation of the petitioners did not depend uponconsiderations of public interest. In deciding upon the conflicting interestsof Graduate Medical Officers and Assistant Medical Practitioners, the 1st, 2nd and3rd respondents (the Minister, his Secretary and the Deputy Director GeneralAdministration, respectively) considered the views of the GMOA and yieldedto their pressure. Neither the views of the Assistant Medical Practitioners northose of the petitioners were sought. Hence, rights of the petitioners guaranteedby Article 12 (1) of the Constitution were violated.
Per Amerasinghe, J.
"When a change of policy is likely to frustrate the legitimate expectationof individuals, they must be given an opportunity of stating why the changeof policy should not affect them unfavourably. Such procedural rights havean important bearing on the protection afforded by Article 12 of the Constitutionagainst unequal treatment, arbitrarily, invidiously, irrationally or otherwiseunreasonably dealt out by the executive.'
Cases referred to :
R. v. Hertfordshire C.C., ex P. Cheung – The Times April 4, 1986.
R. v. MAFF ex. P. Hamble (Offshore Fisheries Ltd.,) (1995) 2 All ER 714,723, 730, 731.
R. v. Secretary of State for the Home Dept., ex P. Ruddock (1987) 2 All
ER 518, 531.
Findlay v. Secretary of State for the Home Dept. (1984) 3 All ER 801.
4.
SC Dayarathna and Others v. Minister of Health and Indigenous
Medicine and Others (Amerasinghe, J.)395
Council of Civil Service Union v. Minister for Civil Services (1984) 3 AllER 935, 949.
Hughes v. Dept, of Health and Social Security (1985) AC 776, 788.
HTV Ltd. v. Price Commission – 1976 ICR 170 at 185.
Preston v. IRC – 1985 2 All ER 327 at 340 – 1985 AC 835 at 865.
Attorney-General for New South Wales v. Quin (1990) 1 CLR 1, 23.
Att-Gen of Hong Kong v. Ng Yen Shin (1983) A.C. 629.
Re Findlay (1985) AC 318.
Robertson v. Minister of Pensions (1949) 1 K.B. 227.
Lever Finance Ltd. v. Westminster (City) London Borough Council (1971)QB 222.
Associated Pictures Houses Ltd. v. Wednesbury Corpn (1948) 1 KB 223.
Rex v. Secretary of State of the Home Dept., ex. P. Khan (1985) 1 ALLER 40, 46.
APPLICATION for relief for infringement of fundamental rights.
Romesh de Silva, PC with Geethaka Gunawardena for the petitioner.
Kolitha Dharmawardena, DSG with Viran Corea, SC for the respondents.
Cur. adv. vult.
May 4, 1999.
AMERASINGHE, J.
Sixteen petitioners filed separate applications alleging the violationof their respective fundamental rights guaranteed by Article 12 (1) ofthe Constitution. Learned counsel for the petitioners and respondentssubmitted that, since these applications related to complaints arisingfrom a single decision of the first, second and third respondents,the several applications may be heard together and that a singlejudgment would be applicable as far each of the sixteen petitionersand four respondents were concerned.
The Secretary of the Ministry of Health, Highways and SocialServices by notification in the Government Gazette No. 923 of
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10.05.1996, called for applications from citizens of Sri Lanka who were"desirous of following a course of training for the examination leadingto the award of the certificate of competency as Assistant MedicalOfficers". It is not disputed that each and every one of the petitionerspossessed the stipulated qualifications to apply for enrolment to followthe course of training; that their applications were submitted in termsof the notification; that they sat the competitive examination conductedon the 27th of December, 1996; and that they were so placed onthe results of the examination as to be qualified to follow the courseof training.
Although in paragraph 10 of the scheme published in GazetteNo. 923 of 10.05.1996 “the method of selection for training includedan "interview to check the qualifications", meaning the checkingof (1) the birth certificate; (2) evidence of citizenship; and (3)certificates relating to educational qualifications, no interview washeld, despite several inquiries from the petitioners as to why theinterview was not held.
Instead of proceeding with the advertised course of training for theexamination leading to the award of the certificate of competencyas Assistant Medical Practitioners for which the petitioners hadapplied, they were by a circular letter dated the 20th of August, 1998,(F1) invited to apply for training as Pharmacists, Medical LaboratoryTechnologists and Public Health Inspectors.
There are significant distinctions between Pharmacists, MedicalLaboratory Technologists and Public Health Inspectors on the onehand and Assistant Medical Practitioners/Officers on the otherboth with regard to their standing and their training, and eligibilityfor selection to training courses. In terms of section 41 (2A) of theMedical Ordinance No. 26 of 1927 (as amended, from time to time,by Acts of the Legislature, including the Medical (Amendment)Act No. 30 of 1987 and the Medical (Amendment) Act No. 13 of 1993),
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an Assistant Medical Practitioner (formerly known as an ’Apothecary’)onfurnishing proof to the Director of Health Services that he or she beingan Assistant Medical Practitioner has had an aggregate period of atleast eight years' of efficient and satisfactory service as an estateAssistant Medical Practitioner or as an Assistant Medical Practitioneron an estate and in the public service, and has within that periodserved in one or more hospitals under one or more medicalpractitioners for an aggregate period of two years, is entitled to beregistered to practise medicine and surgery. Section 41 (2B) of theMedical Ordinance states that a Government Assistant MedicalPractitioner, whether he or she is in the service of the Governmentor has ceased to be in such service, on production of a certificatefrom the Director of Health Services to the effect that he or she (1)has had an aggregate period of four years of efficient and satisfactoryservice as a Government Assistant Medical Practitioner; (ii) has, withinthat period, served in one or more district or provincial hospitals underone or more medical practitioners for an aggregate period of atleast three years; and (iii) holds a diploma conferred by the relevantauthority, may be registered as being entitled to practice medicineand surgery.
On the other hand it is not in dispute that Pharmacists, MedicalLaboratory Technologists and Public Health Inspectors as such arenever eligible to be registered to practice medicine and surgery.Understandably, the basic educational qualifications required of thoseadmitted to the course of training as Assistant Medical Practitionerson the one hand and those admitted to courses of training asPharmacists, Medical Laboratory Technologists and Public HealthInspectors on the other are quite different.
The former –
“(a) should have passed the GCE (O/L) examination New/Otd/Interim syllabus in 06 subjects including Sinhala/Tamil
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Language, Mathematics and Science or should have passedthe NCGE examination in six subjects at not more than twosittings with °B° grade passes for four subjects including Firstlanguage, Mathematics and Science; and
(to) should have passed the GCE (A/L) examination in foursubjects including Chemistry and either Zoology or Botanyat one sitting.
Note :A pass in English Language as a subject at the Senior
School Certificate/GCE (O/L)/ (NCGE examination willbe considered as an added qualification" : (Gazette No. 923of 10.05.1996, paragraph 05).
The latter should have passed –
"6.1 the Senior School Certificate or General Certificate of Educationexamination (Old syllabus) in six subjects, at not more than twosittings with Credit passes in Sinhala/Tamil Language or Utera-ture/Sinhala Language & Literature/Tamil Language and Litera-ture and Mathematics and in two Science subjects (ie Physics,Botany, Zoology, Biology or Chemistry); or
.6.2 the General Certificate of Education (Ordinary Level) examina-tion (New syllabus) in six subjects at not more than two sittingswith Credit passes in Sinhala/Tamil Language or Literature/Sinhala Language and Literature/Tamil Language and Literature,Mathematics, General Science and one other subject.
6.3 the National Certificate of General Education in six subjects atnot more than two sittings with “B" grade passes for Firstlanguage, Mathematics, Science and Health Science or aTechnical subject.
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Note : Candidates who qualify under 6.1, 6.2, 6.3 above shouldhave compulsorily passed at least 05 subjects at one sitting:(Gazette of 09.02.1996).
The schemes of training are also different. Inter alia, selectedcandidates for training as Assistant Medical Practitioners were"required to follow a 2 1/2 years' training course at the Medical Faculty,University of Sri Lanka and/or at the National Institute of HealthServices, Kalutara and thereafter an internship of 06 months at aProvincial Base or District Hospital . . ." (Paragraph 11, Gazette of10.5.1996).
According to information furnished by the AMP Co-ordinator,AMP Training Programme, Faculty of Medicine, Peradeniya, (Docu-ment A), which has not been controverted Assistant Medical Prac-titioner students followed courses in Anatomy, Physiology, Biochem-istry (6 months): Nutrition, Pharmacology & Pharmacy, Microbiology,Parasitology, Pathology, Community Medicine (6 months); Medicine,Surgery, Paediatrics, Gynaecology and Obstetrics (18 months,including 8 weeks clinicals). Additionally, they also clerked for 2-4weeks in "Otolaryngology, Opthalmology, Chest Diseases, VenerealDiseases, Dental Surgery, Dermatology, Orthopaedic Surgery, ClinicalPathology, Out Patient Department, Hospital Administration, Pharmacyand Anti-Malarial Work.” At the end of an Assistant MedicalPractitioner's course of training it was envisaged that a successfultrainee would "as a leader of a team" "be capable of –
preventing the spread and incidents of the listed pathologicalstates in the community;
implementing family planning programmes;
preventing maternal and child mortality and morbidity in thecommunity;.
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conducting a normal delivery;
diagnosing and treating individuals who are afflicated with thelisted pathological states;
supervising continued treatment in individuals with the listedconditions;
detecting and referring patients with the listed clinical states orany other problem that he is unable to deal with to the closesthospital equipped to deal with such problems after providingappropriate initial treatment;
administering peripheral units and central dispensaries;
possess a scientific attitude;
assume responsibility for his own continued learning;
function efficiently in groups;
possess skills in good inter-personal relationship with patientsand people.”
It was not suggested that the training schemes for Pharmacists.Medical Laboratory Technologists or Public Health Inspectors equippedthem with the knowledge and skills imparted in the training coursefor the examination leading to the award of the certificate ofcompetency as Assistant Medical Practitioners.
Having regard to the superior educational qualifications requiredof those invited to apply for the course of training for the examinationleading to the award of the certificate of competency as AssistantMedical Practioners; and having regard to the comparatively superiornature of the training imparted to trainee Assistant Medical Practition:
SC Dayarathna and Others v. Minister of Health and Indigenous
Medicine and Others (Amerasinghe, J.)401
ers in terms of content, duration and intensity; and having regardto the fact that the petitioners had at a competitive examination, subjectto the verification of their certificates at an interview, qualified them-selves to be admitted to the course of training leading to the awardof the certificate of competency as Assistant Medical Practitioners, theinvitation to them contained in the letter F1 dated the 20th of August,1998 to apply for training as Pharmacists, Medical Laboratory Tech-nologists or Public Health Inspectors was in my view tantamount totreating unequals equally, and therefore the conduct of the secondand third respondents was manifestly unreasonable and unfair.
Moreover, having regard to the manner in which earlier applicantssimilarly situated were treated, there was discrimination betweenthe petitioners and the earlier applicants. It is both a Constitutionalrequirement and a cardinal principle of good public administration thatall persons in a similar position should be treated similarly: Cf.per Lord Donaldson, MR in R. v. Hertfordshire C. C., ex P. Cheung ™There must be certainty and predictability if the rule of law is toprevail, which Article 12 of the Constitution, among other things, isobviously intended to safeguard. Article 12 of the Constitution requiressubstantive as well as formal equality: laws, regulations and executiveor administrative rules, procedures and schemes must not discriminatebetween individuals on invidious or irrational grounds; and officials arerequired to apply those laws, rules, procedures and schemes con-sistently and even-handedly unless a deviation can be objectively andreasonably justified on the grounds that a legitimate end is beingpursued and that the means to achieve that end are proportionate.
The petitioners contend that their "legitimate expectations" havebeen disappointed, and by way of the 'just and equitable' reliefthe Court may grant or direct under the provisions of Article 126 (4)of the Constitution, they pray, among other things, for an order ofthis Court “revoking and/or annulling and/or setting aside the decisioncontained in the letter dated 20.8.98 and marked as "F1°; and
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an order "directing the respondents to hold the viva/or interview withina reasonable time as contemplated in the Gazette notice marked'B'; and to conduct the course of study for Assistant MedicalPractitioners". Essentially, this is an appeal that the respondentsshould be required to act with fairness: Cf. per Sedley, J. in R. v.MAFF, ex P. Hamble (Offshore Fisheries Ltd.)™, Following R. v.Secretary of State for the Home Dept., ex P. Ruddock.
In support of the reliefs sought, the petitioners submittedthat, having regard to the promises or representations expressedor reasonably implied in the advertisement in Government GazetteNo. 923 of 10.05.1996, as well as presentations implied fromestablished practice based upon the past actions and settled conductof the first, second and third respondents and their predecessorsin office, the petitioners had a legitimate expectation of a substantivebenefit, namely that they would, upon satisfying the requirementspublished in Gazette No. 923 of 10.05.1996, be provided withthe training specified and publicised in that Gazette notification.
The respondents, through the affidavit of the Secretary, Ministryof Health and Indigenous Medicine, stated that :
“(a) The need for Assistant Medical Practitioners arose at a timein the past, when there were insufficient Graduate MedicalOfficers for posting to hospitals in the country.
It is the Graduate Medical Officers who have been involvedin training the said AMPs;
At present, there are approximately 800 Medical Officersgraduating every year;
(cO In the circumstances, the Government could only offeremployment for these Medical Graduates for another 2 years;
SC Dayarathna and Others v. Minister of Health and Indigenous
Medicine and Others (Amerasinghe, J.)403
In view of the foregoing, the Government Medical Officers'Association (GMOA) has taken up the position that they wouldnot engage in the training of Registered AMPs in future.
I annex herewith marked 2R2, a copy of a letter dated18th December, 1997, sent by the GMOA containing, inter alia, thesaid position.
I also annex herewith marked 2R3 a copy of the relevantrecruitment criteria, which specifically states (in paragraph 3 thereof)that RMOs and AMPs would be placed under the supervisionof Graduate Medical Officers upon recruitment.
In the foregoing context, it would not be possible to conductsuitable training for Registered Assistant Medical Practitioners."
Was there more than a mere expectation or hope that mighthave been entertained by a reasonable man or woman? Eg cf. Findlayv. Secretary of State for the Home Depf{A). Was there a 'legitimateexpectation' in the sense of an expectation that was worthy ofprotection – one that has consequences to which effect will be givenin public law? Cf. Council of Civil Service Unions v. Minister for CivilService. There are many judicial decisions and publications of learnedjurists that help us to understand what makes an expectation legiti-mate. I refrain from examining them here. However, I do wish to quotewith respectful approval the following words of Sedley, J. in R v. MAFF, ■ex P. Hamble (Offshore Fisheries), (supra) at 731:
“Legitimacy in this sense is not an absolute. It is a functionof expectations induced by government and of policy considerationswhich militate against their fulfilment. The balance must, in thefirst instance, be for the policy-maker to strike; but if the outcomeis challenged by way of judicial review, I do not consider that theCourt's criterion is the bare rationality of the policy-maker's con-clusion. While policy is for the policy-maker alone, the fairness of
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his or her decision not to accommodate reasonable expectationswhich the policy will thwart remains the Court's concern (as ofcourse the lawfulness of the policy). To postulate this is not placethe judge in the seat of the Minister. . . (1) is the Court’s taskto recognize the constitutional importance of ministerial freedomto formulate and to reformulate policy; but it is equally the Court'sduty to protect the interests of those individuals whose expectationof different treatment has a legitimacy which in fairness outtopsthe policy choice which threatens to frustrate it."
The respondents called for applications in the Government Gazetteof the 10th of April, 1996. The competitive examination for selectionwas held on the 27th of December, 1996. And, then by their letterdated the 20th of August, 1998, the respondents suggested there wasa change of the advertised conditions. Evidently, there had been achange of policy. In my view, although the executive ought not inthe exercise of its discretion to be restricted so as to hamper or preventchange of policy, yet it is not entirely free to overlook the existenceof a legitimate expectation. Each case must depend on itscircumstances, but eventually, it seems to me, that the Court's delicateand sensitive task is one of weighing genuine public interest againstprivate interests and deciding on the legitimacy of an expectationhaving regard to the weight it carries in the face of the need for apolicy change.
In general, a Government has a right to change its policies.As Lord Diplock observed in Hughes v. Dept, of Health and SocialSecurity® :
"Administrative policies may change with changing circumstances,including changes in the political complexion of Governments.The liberty to make such changes is something that is inherentin our form of constitutional Government. When a change inadministrative policy takes place and is communicated in adepartmental circular. . . any reasonable expectations that mayhave been aroused . . .by any previous circular are destroyed."
SC Dayarathna and Others v. Minister of Health and Indigenous
Medicine and Others (Amerasinghe, J.)405
This passage might be thought to suggest that no expectation cansurvive a change in policy. That is not so. As Sedley, J. observedin R v. MAFF, (supra), at 730 : "But it is also well-establishedthat' it is a misuse of power for (a public body) to act unfairly orunjustly towards the private citizen when there is no overriding publicinterest to warrant it', (see HTV Ltd. v. Price Commission& at 185per Lord Denning MR, cited with approval by Lord Templeman inPreston v. IRQ8> at 340.
I am mindful of the reluctance of some courts to accord legitimateexpectations substantive as opposed to procedural protection on -the ground that to do so might encounter the objection of entailing,what Mason, CJ. of Australia in Att-Gen. for New South Wales v.Quid9> described as 'curial interference with administrative decisionson the merits by precluding the decision-maker from ultimately makingthe decision which he or she considers most appropriate in thecircumstances". Admittedly, the legitimate expectation which has beencreated may sometimes be no more than that a particular procedurewill be followed, eg. see Att-Gen. of Hong Kong v. Ng Yen Shid'°KOn the other hand in certain cases the Court may in considering achallenge to an executive or administrative decision based on legiti-mate expectations consider substantive issues. A change in policycan have a substantive impact, eg. see Re Findlayn|; Cf also Robertsonv. Minister of Pensions<’21; Lever Finance Ltd. v. Wesminster (City)London Borough CounciP3). Thus, if it can be shown that a decisionwas based on irrelevant considerations or that improper purposes werebeing pursued; it will be struck down on ordinary Wednesbury criteria."(Associated Picture Houses Ltd. v. Wednesbury CorprfU)-, P. P. Craig,Legitimate Expectations: A Conceptual Analysis, (1992) vol.108 LOR79 at 94. Craig (ibid.) observed: "Now it is of course the case thatthe application of these criteria can involve the danger that the Courtmay indirectly substitute its judgment on the merits for that of theadministrative agency. This is however, a general problem with the,review of administrative discretion which is not rendered more or lessdifficult by the fact that the origin of the applicant's standing is theconcept of legitimate expectation.
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On the cogency of the "no fettering" argument, it has been, in myview, correctly said that it has been overstated. Craig (op. cit. at 90)said:
"Policies must of course be allowed to develop, and in thissense it is correct to say that they cannot be fettered. One cannot,therefore, ossify administrative policy, which may alter for a varietyof reasons, including experience gleaned from the operation of theprevious policy, change of political outlook, or new technologicaldevelopments. Nonetheless, the "no fettering" theme must be keptwithin bounds. Where a representation has been made to a specificperson, or where conditions for the application of policy in a certainarea have been published and relied on, then the public bodyshould be under a duty to follow the representation or the publishedcriteria. This does not prevent it from altering its general policyfor the future, but it should not be allowed to depart from therepresentation or pre-existing policy in relation to an individual whohas relied, unless the overriding public interest requires it, and thenonly after a hearing."
In the matters before me there was no Gazette notification nora circular formally announcing a change of policy. There wasno announced change of policy based upon a change of Government.Indeed, there was no change of Government between the callingof applications and on the alleged change of policy that took placelater. What was the explanation then for the deviation betweenthe notification in the Gazette dated 10. 05. 1996 and the letterof 20. 08. 1998?
According to the affidavit of the second respondent, the Secretaryof Health and Indigenous Medicine, there was "a time in the past whenthere were insufficient Graduate Medical Officers for posting tohospitals on the country" a "need for Assistant Medical Practitioners".The "need for Assistant Medical Practitioners” was recognized by thelegislature in 1993: Indeed, Assistant Medical Practitioners continue
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to be statutorily recognized as eligible to be registered to practicemedicine and surgery even to this day. And, if there was no “need"for them in 1996, why did the Ministry of Health, Highways andSocialServices by advertisement in the Government Gazette of 10.05. 1996 call upon “citizens of Sri Lanka", including, of course thepetitioners, who were "desirous of following a course of training forthe examination leading to the award of the certificate of competencyas Assistant Medical Officers" to make their applications, and makethem sit an examination in December, 1996, for selection, and thenin August, 1997, announce the results of that examination? Why didthe respondents fail to hold the interviews for checking the documentsof the petitioners, as promised? Why did they fail to provide thepromised course of training? Were these failures due to a changeof policy based on considerations of overriding public interest? Or werethe failures due to the omission of the first to third respondentsto consult stakeholders before the advertisement and before policychanges were effected?
On the 18th of December, 1997. the Secretary of the GMOA wroteto the Minister of Health and Indigenous Medicine as follows:
PROPOSAL TO START THE AMP TRAINING PROGRAMME
"Further to the discussion we had with you at the Monthly Meetingon 17.12.97, we wish to reiterte our Association's stand on the abovematter.
As at present the Government is not in a position to assureemployment to all medical graduates and the intention of the gov-ernment is to post qualified doctors to the peripheries. Therefore wesee no justification to restart the AMP training course and our memberswould not participate in any component of the training programme.
These decisions have been arrived at a Special General Meetingof the GMOA."
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The Minister made a Minute on that letter on the 6th of January1998, to one of the Directors-General as follows:
"Please report whether this training could be done withoutassistance of the GMOA members."
It would appear that on the 6th of January, 1998, the Ministerhad given no indication of a change of policy; indeed, he seemsto have wanted to carry on with the proposed training course, ifthat was possible. However, on the 6th of January, 1998, the officialresponded with the following minute addressed to the Minister:
"Without the assistance and the co-operation of the membersof the GMOA it is impossible to conduct the training as theyare responsible for almost 95% both didactic/clinical training.”
The next step was the submission of a Cabinet Memorandum datedthe 11th of March, 1998, by the Minister. It stated as follows:
FILLING THE POSTS OF REGISTERED/ASSISTANTMEDICAL OFFICERS FROM THE GRADUATE MEDICAL OFFICERS
There are about 1500 Registered Assistant Medical Officers servingin the Institutions under this Ministry and Provincial Councils and atpresent there exist 92 vacancies. This Ministry invited applications tofill the above vacancies and an examination was held by the Depart-ment of Examinations for this purpose on 27.12.1996. The Ministryhas already received the results of this examination.
In the past, these posts have been created at a time whenthe number of graduate Medical Officers was not adequate tobe posted to the hospitals. The approximate number of graduateMedical Officers who pass out annually from the Medical Collegesin Sri Lanka is about 800. When the number of vacancies
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of Medical Officers exist at present is taken into account it isobserved that the Ministry could provide employment onlyfor the next two years. It is the sole responsibility of theGovernment to provide jobs for the doctors who are produced.by spending a huge amount of Government money. Similarly,it is also the duty and responsibility of those Graduate MedicalOfficers to serve their motherland.
Upto now, it was the Graduate Medical Officers and the ConsultantMedical Officers who contributed in a large scale for the saidtraining of Registered Assistant Medical Officers. However, theGovernment Medical Officers' Union has informed me in writingthat they will not engage in the duties of training RegisteredAssistant Medical Practitioners in the future.
In the circumstances, I would like to state that it is muchmore appropriate to fill the existing vacancies of RegisteredAssistant Medical Practitioners in the institutions under thisMinistry and the Provincial Councils from the Graduate MedicalOfficers, to enable to obtain the services of Graduate MedicalOfficers who pass out annually from the Medical Collegesinstead of training a new batch spending an additional amountof money from the Government funds.
In addition, I could suggest that an opportunity be grantedto the candidates who have obtained higher marks at the saidexamination to follow the training course for para medical servicesand Public Health Inspectors if they so desire.
Accordingly, Cabinet approval is sought –
i. to fill the existing vacancies and those that would fall vacantin the future Cadre of Registered Assistant Medical Officers fromthe graduate Medical Officers.
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ii. to grant an opportunity to the candidates who have obtainedhigher marks at the examination held on 27. 12. 1996 to recruitAssistant Medical Officers to follow the training course for paramedical services/Public Health Inspectors if they so desire."
The “circumstances" which made it “more appropriate" to fill thevacancies of Registered Assistant Medical Practitioners with GraduateMedical Officers are less than clear. Was it because the Minister wasof the view that by doing so Government would be better placed infulfilling its "responsibility. . . to provide jobs for doctors who areproduced by spending a huge amount of Government money”? Wasit to provide Graduate Medical Officers the opportunity of dischargingtheir “duty and responsibility … .to serve their motherland"? Wasit to save the Government the expense of training Registered MedicalPractitioners? Was it because the "Government Medical Officers’ Union"had informed the Minister that “they will not engage in the duties oftraining Registered Assistant Medical Practitioners in the future”?
In responding to the petitioners' averment that in terms of theGazette notification an interview ought to be conducted to selectcandidates for the advertised course of training, the second respondentexplained in his affidavit that the GMOA had “taken up the positionthat they would not engage in the training of Registered AMPsin future", and that “in the foregoing context it would not be possibleto conduct suitable training for Registered Assistant Medical Practi-tioners”. In responding to the petitioners' averments that "despiterepeated assurances made by the first respondent and the secondrespondent, the respondents have upto now failed and neglected tohold a viva and/or interview for the selection of students forthe said course, nor has the said course of study commenced",the second respondent in his affidavit stated, inter alia, that “havingregard to the fact that there was an adequate number of MedicalGraduates to fill the said vacancies, the 1st respondent submitted aCabinet memorandum seeking Cabinet approval to fill the existing92 vacancies with Graduate Medical Officers, and to grant
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an opportunity to the candidates who sat for the examination heldon 27.12.1966 to recruit AMPs to follow the training course forpara medical services/Public Health Inspectors, if they so desire."
Learned counsel for the respondents, Mr. Dharmawardana, wasas usual frank, free from bias and partiality and very candid: He helpedto rescue us from the involved submissions of the first respondentto the Cabinet and the averments of the second respondent in hisaffidavit. He said that the real reason for Interrupting the processof recruitment and training was the impossibility of providing thepromised course on account of the necessary resource persons forproviding the supervision and training of aspiring Assistant MedicalPractitioners being unwilling to assist. However, learned counsel forthe respondents added that since there were sufficient MedicalGraduates, the services of Assistant Medical Practitioners were nolonger required and that steps were being taken to reflect thatsituation in the relevant legislation.
It comes to this : in terms of existing legislative policy, bothMedical Graduates and Assistant Medical Practitioners are qualifiedin specified circumstances to practice medicine and surgery.Having regard to published information, representations andpast executive practice which the petitioners relied on in applyingfor the course of training and sitting the prescribed examination, theyhad a legitimate expectation that they would, upon satisfying theprescribed conditions, be provided with "a course of training for theexamination leading to the award of the certificate of competency asAssistant Medical Officers". The respondents decided that it waspreferable or necessary to employ Graduate Medical Officers to fillthe vacancies of Assistant Medical Officers and to offer the petitionersa course of training leading to their qualification as Pharmacists,Medical Laboratory Technologists – described by the Minister as"paramedical services" – or as mere Public Health Inspectors, therebyresiling from the advertised scheme, representations and establishedpractices.
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No opportunity was given to the petitioners to argue why the changeof policy should not affect them: they were faced with a situation wherea change of policy had been made without their knowledge and whenit had been decided that they might apply for some other, inferior,course “if they so desire”. It was perhaps an unsatisfactory way inwhich the petitioners were dealt with by the first to third respondentsfrom an administrative point of view. Moreover, legally, the respondentsfailed to observe their duty. When a change of policy is likely tofrustrate the legitimate expectations of individuals, they must be givenan opportunity of stating why the change of policy should not affectthem unfavourably: cf. R. v. Secretary of State of the Home Dept,exp. P. Kharf,5>; R. v. MAFF, ex p. Hamble Fisheries {supra) at 731.Such procedural rights have an important bearing on the protectionafforded by Article 12 of the Constitution against unequal treatmentarbitrarily, invidiously, irrationally or otherwise unreasonably dealt outby the executive. "They focus on formal justice and the rule of law,in the sense that the rules of natural justice help to ensure objectivityand impartiality, and facilitate the treating of like cases alike. Proce-dural rights are also seen as protecting human dignity by ensuringthat the individual is told why he is being treated unfavourably, andby enabling him to take part in that decision." Craig (op. cit.) 86.
In addition to the procedural opportunity required by law, there isa substantive requirement that there must be an overriding publicinterest if a change of policy were to set at nought an individual'sprior expectation: R. v. Secretary of State for the Home Dept, (ibid);R v. MAFF, ex p. Hamble Fisheries (ibid). There was no such interestclaimed in the matters before me. For all the involved explanationsof the first respondent in his Cabinet memorandum and that of thesecond respondent in his affidavit, essentially the change of policywas based on the preference of the interests of one of two classesof persons recognized by the Legislature as entitled to practice medicineto the other. The conflicting interests were those of the GraduateMedical Officers and the Assistant Medical Practitioners. The first,second and third respondents, considered the views of the Trade
SC Dayarathna and Others v. Minister of Health and Indigenous
Medicine and Others (Amerasinghe, J.)413
Union known as the General Medical Officers' Union on behalf ofGraduate Medical Officers and yielded to their pressure of non-co-operation in the matter of conducting the advertised course of training.Neither the views of the Assistant Medical Practitioners nor those ofthe petitioners were sought. The decision of the respondents, andrecommendations to the Cabinet effecting a change of policy did notdepend either upon considerations of public interest weighed againstprivate interests or even upon an informed consideration of conflictingprivate interests.
The change of policy, in the circumstances, may nevertheless affectthe future, having regard to the fact that the legislature and executiveare free to formulate and reformulate policy; however, it is the dutyof this Court to safeguard the rights and privileges, as well as interestsdeserving of protection such as those based on legitimate expecta-tions, of individuals. In my view, the legitimate expectations of thepetitioners with regard to the “Scheme of Training" as described inparagraph 11 of the Gazette notification of 10.05.1996 survive thepolicy change that has taken place.
For the reasons stated in my judgment,
I declare that the fundamental rights of the petitioners guaranteedby Article 12 (1) pf the Constitution have been violated by the secondrespondent;
I further declare that document F1 dated the 20th of August, 1998,is of no force or avail in law as far as the petitioners are concerned.
I make order that in respect of each and every one of the sixteenpetitioners the first, second and third respondents shall –
(a) hold the interview referred to in Government Gazette No. 923of 10. 05. 96 within eight weeks from the date of this judgment;and
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(b) provide the scheme of training advertised in Gazette No. 923of 10. 05. 96 commencing within a reasonable time but notexceeding six months from the date of this order.
I further make order that the State shall pay each of the petitionersa sum of Rs. 5,000 as costs.
GUNASEKERA, J. – I agree.WEERASEKERA, J. – I agree.
Relief granted.
