DHARMARATNE AND ANOTHER V. SRL LANKA EXPORT DEVELOPMENT BOARD AND 13 OTHERS

057-SLLR-SLLR-1995-2-DHARMARATNE-AND-ANOTHER-V.-SRL-LANKA-EXPORT-DEVELOPMENT-BOARD-AND-13-OTHERS.pdf


324
Sri Lanka Law Reports
[1995] 2 Sri L.R.
DHARMARATNE AND ANOTHER
v.
SRI LANKA EXPORT DEVELOPMENT BOARD AND 13 OTHERS
SUPREME COURTFERNANDO, J.WADUGODAPITIYA, J.PERERA, J.
S.C. 115/94SEPTEMBER 28, 1994.
Constitution – Art. 12 (1) of the Constitution – Promotion – Seniority – Experience -Additional qualifications – Weightage to be given – Absence of due performanceappraisal system.
The Petitioners are Asst; Directors of the 1st Respondent Board. They stated thatvacancies for posts of Deputy Director Grade 2 were advertised, theappointments were to be made after an interview to be conducted by an InterviewBoard. The Petitioners applied, but were unsuccessful. It is alleged that theappointments of 7-12th Respondents were arbitrary and without any rational basisfor the following reasons:
There was no scheme of recruitment setting out criteria and guidelines forselection.
The criteria and basis of selection adopted by the Board of Interview wereadhoc, therefore arbitrary and vague.
Dharmaratne and Another v. Sri Lanka Export Development Board
SCand 13 Others325
That there was inadequate weightage given to seniority.
That there was no mechanism to determine experience and managerial abilityand no scheme for performance appraisal.
It was unreasonable to give too much weightage to the performance of theinterview as it was subjective.
Held:
The 1st criterion 'Seniority' is easily ascertainable from the applicants recordof service and is therefore clearly objective.
The 2nd criterion 'additional qualifications' is likewise easily ascertainableand is therefore objective.
The 3rd criterion 'Experience' – it is clear that the experience of theapplicants can in fact be ascertained and assessed on the above basis, andis therefore objective.
The 4th criterion 'Performance' – the list is comprehensive and it cannot besaid that the assessment under this head was in any way capricious.
The 5th criterion 'communicating skills' – the abilities of the candidates onthe above basis can readily be gauged, and it cannot be said that theasessment under this head was in any way capricious.
Under the 6th criterion 'Managerial abilities' the Board of Interview exerciseddue responsibility in arriving at an assessment under this head.
The interviews were conducted quite objectively, several criteria and baseswere employed and where there was a lacuna, a system of consultation wasresorted to, the totality of the Evidence shows that the Board of Interview hadacted responsibly.
Per Fernando J.,
The weightage to be given to seniority and other criteria was a matter withinthe discretion of the interview Board. The weightage for seniority mustdepend on the Nature of the post; the greater its responsiblities the more thejustification for giving greater weightage for factors, relevant to merit andability and performance.
Further the weightage given to experience indirectly recognised seniority aswell.
326
Sri Lanka Law Reports
[1995] 2 Sri LR.
“While I agree that an annual performance appraisal system is very desirablefor such assessment, it is not presently of a mandatory requirement – thoughit is possible that industrial relations and practice may make it mandatory inthe future.
Per Wadugodapitiya, J.
There is no denying that the system as a whole was not as perfect as it oughtto have been but the shortcomings which surfaced and which have beenpointed out, constitute in my view blemishes at the most and are in no wayserious enough to render the decisions of the Interview Board Nugatory.
Cases referred to:
Perera v. Ranatunga – 1993 1 SLR 39.
Abeysinghe v. CECB – SC 356/93 SCM 2.5.94.
Hewamallikage v. People’s Bank-S.C. 291/93 SCM 14.10.94.
Perera v. Monetary Board-S.C. 246/93 SCM 1.11.94.
Piyasena v. People's Bank-S.C. 359/93 SCM 4.11.94.
Wickremasinghe v. Loku Bandara – SC 59/93 – SCM 7.10.93.
Ariyasinghe v. State Timber Corporation – S.C. 283/93 SCM 22.9.94.
APPLICATION under Article 126 of the Constitution.
Faisz Musthapha, PC. with Mahanama de Silva for Petitioner.
A. S. M. Perera, D. S. G., for 1-6th and 14th Respondent.
R. K. W. Goonesekera, with L. C. M. Swarnadhipathytor 7-13 Respondents.
Cur adv vult.
January 1, 1995WADUGODAPITIYA J.
The petitioners are Assistant Directors of the Sri Lanka ExportDevelopment Board, (the 1st Respondent). They state that vacanciesfor Posts of Deputy Director, Grade 2 in the 1st Respondent Boardwere advertised in the newspapers on 1.3.93 (P2), and circularisedby an internal memorandum dated 3.3.93 (P3). These posts wereopen to both internal as well as external candidates. Theappointments were to be made after an interview to be conducted by
sc
Dharmaratne and Another v. Sri Lanka Export Development Board
and 13 Others (Wadugodapitiya J.)
327
a Board constituted for that purpose, (2nd to 6th Respondents). The2nd Respondent was the Chairman whilst the 5th and 6thRespondents were Directors of the 1st Respondent Board.
The qualifications and experience called for were clearly set out,viz; a Degree of a recognised University or equivalent professionalqualification, with preference to holders of a First or Second ClassDegree or Post-Graduate qualification relevant to the job description.In addition, post-qualifying experience of not less than 8 years in therelevant field was called for, of which at least 3 years should havebeen at Senior Management Level in a recognised Public/PrivateSector Institution or an International Institute/Agency.
Both Petitioners applied. Copies of their applications are at P4 andP5 respectively. Thereafter the 1st petitioner was summoned for aninterview on 31.1.94 and the 2nd petitioner, on 28.1.94 before theBoard of Interview which consisted of the 2nd to 6th Respondents.The petitioners state that in all, 18 internal candidates weresummoned for interviews on different dates.
On 10.3.94, however, the petitioners came to know that on 9.3.94,letters of appointment had been issued to the 7th to 13thRespondents appointing them to the posts of Deputy Director, Grade2 in the 1st Respondent Board. Of these, the 7th to 12thRespondents were internal candidates who were promoted, whilst the13th Respondent was an external candidate. The Petitioners have noquarrel with the appointment of the 13th Respondent, but state thatthe promotions and appointments of the 7th to 12th Respondentswere arbitrary and without any rational basis, for the followingreasons:-
the selection of the 7th to 12th Respondents was not inaccordance with the scheme of promotion (Pl)because theperformance and skills of the internal applicants were nottaken into account. The only way in which this could havebeen done was to consult the Directors in charge of theDivisions to which the candidates belonged, and this was notdone;
328
Sri Lanka Law Reports
[1995] 2 Sri LR.
the seniority of the Respondents was not taken intoconsideration. They state that the 8th to 12th Respondentswere junior in service to the 1st petitioner in their appointmentto the post of Assistant Director (Gr: 3), and that regardingthe same post, the 9th to 12th Respondents were junior inservice to the 2nd Petitioner. The 7th Respondent however isof equal seniority with the 1st petitioner and more senior tothe 2nd petitioner in the said post. They have filed markedP6, a list of all the 18 internal condidates who applied andwho were interviewed, setting out their educationalqualifications, dates of appointment to the post of AssistantDirector, Grade 3, and the dates on which they first joined the1st Respondent Board, and
the 2nd to 6th Respondents had acted under politicalpressure and that there were no specific criteria adopted inmaking the selections.
The petitioners state that they have been subjected to unequaltreatment by the 1st to 6th Respondents in violation of the provisionsof Article 12(1) of the Constitution. They ask further, that theappointments of the 7th to 12th Respondents be quashed and thatthey be awarded damages in a sum of Rs. 100,000/- each.
The 7th to 12th Respondents, i.e. the internal candidates whosepromotions are being challenged by the petitioners, have filedcounter-affidavits stating, inter alia
that the scheme of promotion introduced in 1985 and whichis the scheme relied on by the two petitioners is not inoperation, and that what is operative at present is theScheme of Promotion set out in Public Administration CircularNo. 15/90;
that the evaluation process introduced in 1984, and which isrelied on by the two petitioners has been done away with andthat, at present, there is no provision for the evaluation of theperformance of executive officers under PublicAdministration Circular No: 15/90;
sc
Dharmaratne and Another v. Sri Lanka Export Development Board
and 13 Others (Wadugodapitiya J.)
329
that seniority is not the only criterion for promotion and that, inaddition, merit is also taken into consideration in makingpromotions, and
that the interviews were not a mere formality but were aimedat assessing the ability, capability and suitability of thecandidates for Senior Management posts, having regard tothe objectives of the organisation.
The 2nd Respondent, who is the Chairman of the 1st RespondentBoard, and who also functioned as the Head of the Board ofInterview, has filed his objections by way of an affidavit counteringthe several averments made by the petitioners.
He states that the posts of Deputy Director are senior managerialpositions and that it is in the interests of the 1st Respondent Board torecruit persons who are most suited, having regard to the objectivesof the orgainsation; that the Deputy Directors function as unit headsof the several divisions and are required to possess high managerialabilities to manage the units, co-ordinate and liaise with the Directorand the top management and also with the subordinate staff; thatthey are responsible for the implementation of the action plans of theseveral divisions, and that it is therefore essential that they possessabilities to motivate and manage the performance of the subordinatestaff.
The 2nd Respondent goes on to state that after calling forapplications, (besides the external candidates), 17 internalcandidates (not 18 as set out by the petitioners) were interviewed bythe Board of Interview (2nd to 6th Respondents); that at theinterviews, the candidates were questioned on various relevantmatters, including their academic and professional background,contributions made by them to the organisation, their past andpresent duties and strategies for development of small and mediumindustries for exports; that at the interview, due consideration wasgiven to seniority (one mark for each year’s service in Grade 3),job-oriented additional qualifications (4/5 marks for a Diploma, 6marks for the M.Sc./ M.B.A. and 10 marks for a Ph.D.); experience (inexport development, marketing, project appraisal, entrepreneur
330
Sri Lanka Law Reports
[1995] 2 Sri L.R.
development, planning and familiarity with trade information);performance (i.e., ability to identify and analyse problems andpropose practical and constructive solutions); communicating skills(i.e., correct usage of language, clarity of speech and cohesion andpresentation of ideas and information), and managerial abilities (onthe basis of their day to day performance). He has filed marked 2R5,a copy of an unsigned and undated mark-sheet, setting out themarks given to the various candidates under the above heads, interms of which the total marks obtained by the relevant candidatesare as follows 7th Respondent – 44, 8th Respondent – 40, 9thRespondent – 37, 10th Respondent – 41, 11th Respondent – 38, and12th Respondent – 40, Contra, the 1st Petitioner has scored only 34marks and the 2nd Petitioner, 33.
The 2nd Respondent states that prior to the holding of theinterviews, schedules setting out the relevant data pertaining to theseveral applicants were made available to the members of the Boardof Interview; that during the interviews, each member made his ownnotes on the said schedules; that immediately after the conclusion ofeach interview, marks were assigned to each candidate collectivelyby the members of the Board of Interview after consideration of theperformance of each such candidate, and that those who fared bestand obtained the highest marks were selected for the posts ofDeputy Director.
The 2nd Respondent also states that, contrary to what thepetitioners allege, before decisions were taken as to the candidatesto be promoted, the Directors in charge of the relevant Divisions inwhich the several candidates worked, were consulted. Further, in thisconnection, he adds that the “Performance Evaluation Scheme” (forExecutive Officers) which had been adopted earlier was done awaywith for the reason that it did not bring about the desired objectiveand was therefore no longer in operation.
Although the Petitioners rely on P1 and its annextures asconstituting the applicable Scheme of Promotion, the 2ndRespondent denies this and states that the document P1 producedby the Petitioners is only a proposal which has not been approved bythe Board, and as such, cannot be treated as part of the approved
sc
Dharmaratne and Another v. Sri Lanka Export Development Board
and 13 Others (Wadugodapitiya J.)
331
scheme of promotion. He further states that the applicable scheme ofPromotion is contained in the documents filed by him, viz: 2R2 and2R2A to 2R2E, culminating in the undated document 2R3, by whichlatter document, he says, the “Promotion Scheme for the Post ofDeputy Director was finalised". This document, 2R3, merely sets outthe Grade allocated to the Post of Deputy Director, the salary scaleapplicable to it and the qualifications called for, viz: “A degree of arecognised University or an equivalent professional qualification withtwo years service in the E.D.B. as an Assistant Director and has beenconfirmed in the Post”.
From the foregoing, it would be seen that the 2nd Respondent hascountered the several allegations made by the petitioners, with thefollowing points:-
that the Scheme of Promotion was not contained in P1 asstated by the Petitioners, but in the documents culminating in2R3;
that the seniority of all the internal candidates was in facttaken into consideration and marks given therefor at the rateof one mark for each year’s service in Grade 3 (2R5);
that in addition to Seniority, the merit worthiness of thecandidates, in order to assess their performance, their skills,their ability and suitability for senior managerial positions,was taken into account under the several heads set out in2R5; viz; Additional Qualifications, Experience, Performance,Communicating Skills and Managerial Ability;
that the Directors in charge of the Divisions to which theseveral candidates belonged were in fact consulted beforedecisions for selection were taken;
that prior to the holding of the interviews, schedulescontaining all the relevant dates pertaining to the severalcandidates were made available to the members of theBoard of Interview, and that each member made his ownnotes thereon during the interviews;
332
Sri Lanka Law Reports
[1995] 2 Sri L.R.
that the “Performance Evaluation Scheme" for ExecutiveOfficers which had been adopted earlier was done away withbecause it did not bring about the desired objective, and wastherefore no longer in operation;
that there was no truth in the unspecified and unsubstantiated allegation made by the petitioners, of politicalinterference, and
that the appointments of the 7th to 12th Respondents havebeen made on a rational basis using the above criteria andthat petition of the petitioners does not disclose a violation oftheir fundamental rights.
At the hearing, Learned President’s Counsel for the Petitioners washeard in support, but we did not think it necessary to call upon eitherLearned Counsel for the 1st to 6th and 14th Respondents, or LearnedCounsel for the 7th to 13th Respondents, in reply. However, theaffidavits filed by all the Respondents, together with their documentswere considered by us.
At the outset, Learned President’s Counsel for the Petitionersstated that he was not seeking to canvass the appointment of the13th Respondent, who was the external candidate, and that he wasconfining himself to the 7th to 12th Respondents only. He soughtmainly to rely on the following matters in support
that there was no scheme of recruitment setting out criteriaand guidelines for selection. The 2nd Respondent’sdocument, 2R3 did not do so, and was, in any event,undated and not in existence on 1.3.93 when applicationswere called for by P2, (the newspaper advertisement). EvenP2 did not set out any scheme of recruitment or criteria orguidelines for selection. Even the holding of an interview wasnot mentioned in P2;
that the criteria and basis of selection adopted by the Boardof Interview were ad hoc and therefore arbitrary and vague;
sc
Dharmaratne and Another v. Sri Lanka Export Development Board
and 13 Others (Wadugodapitiya J.)
333
that there was inadequate weightage given to seniority. Onemark for each year’s service in Grade 3 was not enough andat least a third of the total of marks out of a hundred shouldhave been given for seniority;
that there was no mechanism to determine experience andmanagerial ability and no scheme for performance appraisal,and that this category should also command at least a thirdof the total of the marks out of a hundred, and
that although the Board of Interview, constituted as it was, ofa Mix of insiders (2R, 5R and 6R) and outsiders (3R and 4R)was not unreasonable, it was unreasonable to give too muchweightage to the performance at the interview as it wassubjective, and that therefore, not more that 10% of themarks should have been allocated for both the interview and"Communicating Skills" and not more than 10% for"Additional Qualifications".
One of the main questions that would arise for consideration in thiscase is, whether the actions of the Board of Interview were soarbitrary as to compel their having to be struck down. The otherquestion is, whether the submission of Learned President’s Counselfor the Petitioners, that the entire interview process was subjectiveand therefore bad for being wholly unreasonable, is worthy of merit.
In considering these questions, it would be pertinent to note thatthe Board of Interview consisted of three members of the 1stRespondent Board, viz; the 2nd Respondent who was Chairmansince 1989; the 5th Respondent who has been Additional Director-General since 1987, and before that, the Director of Marketing since1979, and the 6th Respondent who has been the Director of HumanResources Development for a little under two years. It would seemthat, at the lowest, these persons were no strangers to the officers ofthe 1st Respondent Board at the level of Assistant Director, Grade 3,from which grade the applicants for the post in question were drawn.Further, it is of some importance to re-iterate that schedulescontaining all the relevant personal data concerning the applicantswere made available to each member of the Board of Interview
334
Sri Lanka Law Reports
[1995] 2 Sri L.R.
beforehand, so that during the conduct of the Interviews, all themembers had the necessary material before them, and each madehis own notes on his copy of the schedule during the interviews.
In considering the question of subjectivity raised by LearnedPresident’s Counsel, the picture would be seen with clarity if each ofthe criteria or bases for selection employed by the Board of Interviewwere to be looked at separately. Taking the criteria in the order set outin the mark-sheet, 2R5, it is quite apparent
that the first criterion “Seniority", is easily ascertainable from theapplicant’s record of service, and is therefore clearly objective.The applicants were given one mark for each year’s service inthe Grade 3 post of Assistant Director;
that the second criterion “Additional Qualifications” is likewiseeasily ascertainable and is therefore objective. The holder of aDiploma was given 4 to 5 marks; those in possession of anM.Sc. or M.B.A. Degree were given 6 marks, and those inpossession of a Ph.D. were awarded 10 marks; provided theabove qualifications were “Job – oriented";
that where the third criterion, “Experience" was concerned,marks were given on the basis of the candidate’s experiencerelating to export development, marketing, project appraisal,entrepreneur-development, planning and familiarity with tradeinformation. It is clear that the experience of the applicants canin fact be ascertained and assessed on the above bases and istherefore objective;
that where the fourth criterion, “Performance" was concerned,the following were taken into account in allocating marks, viz;ability to identify problems, ability to comprehend the subject,ability to analyse the topic correctly and meaningfully and torelate the results to their actual performance in the 1stRespondent Board with current data and statistics, and theability to propose constructive and practical solutions. The list iscomprehensive and it cannot be said that the assessmentunder this head was in any way capricious, and
sc
Dharmaratne and Another v. Sri Lanka Export Development Board
and 13 Others (Wadugodapitiya J.)
335
that where the fifth criterion, “Communicating Skills” wasconcerned, clarity in speech, correct usage of language,cohesion and presentation of ideas and information were takeninto account in awarding marks to candidates. This criterion toocannot be said to be capricious.
The abilities of the candidates on the above cases can readily begauged and it cannot be said that the assessment under this headwas in any way caprcious.
In the result, one is left only with the sixth and final criterion, viz;the “Managerial Abilities” of the candidates on the basis of their dayto day work and performance. In this connection, the 2ndRespondent in his affidavit says that the Performance EvaluationScheme which was in operation earlier was done away with for thereason that it did not bring about the desired objective. However, inits place, a system of consultation with the Heads of the relevantDivisions to which the several applicants were attached had beenintroduced; for the 2nd Respondent adds: “I state that the Directorsof the relevant divisions in which the applicants worked wereconsulted before decisions were taken on who should be promoted”.
I see no reason as to why the 2nd Respondent should not bebelieved on this point. This item of evidence shows that the Board ofInterview exercised due responsibility in arriving at an assessmentunder this head. At the very lowest, far from pointing towardscapriciousness and arbitratiness, it distinctly points away from it.
I am therefore of the view that the conduct of the Board ofInterview in selecting the 7th to 12th Respondents can in no way besaid to have beeQ so arbitrary or capricious as to induce me to strikedown and nullify the appointments made. Further, I am of the opinionthat, for the greater part, the interviews were conducted quiteobjectively. As set out above, several criteria and bases wereemployed, and where there was a lacuna, a system of consultationwas resorted to, and, far from acting arbitrarily or capriciously, thetotality of the evidence shows that the Board of Interview, had, in thecircumstances, acted responsibly.
There is no denying that the system as a whole was not as perfectas it ought to have been. But, the shortcomings which surfaced and
336
Sri Lanka Law Reports
[1995] 2 Sri LR.
which have been pointed out, constitute, in my view, blemishes at themost, and are in no way serious enough to render the decisions ofthe Board of Interview nugatory.
Therefore; taking all the circumstances of this case intoconsideration, I am of the view that there has been no violation by the1st to the 6th Respondents of the fundamental rights of thepetitioners under Article 12(1) of the Constitution, and I holdaccordingly.
The application is therefore dismissed.
PERERA, J. -1 agree.
Application dismissed.
FERNANDO, J.
While agreeing with my brother Wadugodapitiya, J, that thePetitioners’ application fails, I wish to add the following observations:
It is certainly desirable that the criteria for selection, and theweightage for each criterion, should be laid down and disclosed tocandidates before any interview or other selection process; but thefailure to do so is, in general, not a fatal flaw (cf. Perera v Ranatunge (”,Abeysinghe v. C.E.C.B.m. There are, however, exceptions (cf.Hewamallikage v. People’s Banki3 Perera v. Monetary Board w, andPiyasena v. People's Bank (S>, but this is not one of them.
In the absence of an established scheme of promotion, theinterview board was quite justified in formulating the relevant criteriaand weightage. The criteria so determined, namely seniority, relevantadditional qualifications, experience, performance, communicationskills, and managerial ability, were all relevant; and there was nosuggestion that any other relevant criterion had been omitted or thatthe scheme was irrational (cf. Perera v. Ranatunge (Supra) andWickramasinghe v. Loku Bandara (6>.
Learned Counsel for the Petitioners attacked the scheme itself, aswell as its implementation, on several grounds.
sc
Dharmaratne and Another v. Sri Lanka Export Development Board
and 13 Others (Fernando, J.)
337
He submitted that the criteria were ad hoc, subjective, vague andarbitrary; that seniority was given insufficient weightage, and shouldhave been given at least one third of the total marks; and thatinterview performance was given too much weightage.
Of the six criteria, the first and the second were wholly objective.The other four involved varying degrees of subjectivity, but thesecriteria were very relevant for senior management posts. Further, theassessment of candidates for such posts involved also an element ofjudgment, based on past performance, as to how well a candidatewas likely to perform if promoted. Subjectivity was thus inevitable.The criteria were clear, and the interview board had formulatedadequate guidelines in regard to the criteria. Thus none of thegrounds of challenge have been established. In regard to theimplementation of the scheme, in the absence of materialestablishing any lack of competence or good faith on the part ofmembers of the interview board, or abuse or misuse of discretion, orarbitrariness, or the like, subjectivity alone was not a vitiating factor.
The weightage to be given, to seniority and other criteria, was amatter within the discretion of the interview board. While it has beensubmitted that the correct weightage had not been given to somecriteria, it cannot be said that the interview board exercised itsdiscretion arbitrarily or unreasonably (unlike in Perera v. Ranatunge{supra)). The weightage for seniority must depend on the nature ofthe post: the greater its responsibilities, the, more the justification forgiving greater weightage for factors relevant to merit and ability, andperformance. Further, the weightage given to "experience” indirectlyrecognised seniority as well {Ariyasinghe v. State Timber Corporation(7>.)The assessment of suitability for the post was made at the interview.Although there could be different opinions as to the appropriatenumber of marks to be given to each candidate for performance atthe interview, there is nothing to suggest that the interview boardexercised its discretion unreasonably or arbitrarily in this respect.
It was strenuously contended that in the absence of an established(i.e. annual) performance appraisal system, there could not be a properassessment of performance, experience, and managerial ability. While I
338
Sri Lanka Law Reports
[1995] 2 Sri LR.
agree that such a system is very desirable for such assessment (andindeed, for the efficient and harmonious running of any institution, fromthe point of view of both employer and employee), it is not presently amandatory requirement – though it is possible that industrial relationslaw and practice may make it mandatory in the future. The absence ofsuch a system did not vitiate the selection process: performance,experience and ability had to be assessed, the interview board founditself in a position where there was no annual performance appraisalsystem, and naturally they had to do the best they could in thecircumstances. If the Petitioners’ contention is upheld, it would meanthat the promotions should have been made without any attempt toassess these factors clearly an untenable and unsatisfactory position.
Application dismissed.