DISSANAYAKE v. GENERAL MANAGER, RAILWAYS AND OTHERS

024-SLLR-SLLR-2008-V-2-DISSANAYAKE-v.-GENERAL-MANAGER-RAILWAYS-AND-OTHERS.pdf


234Sri Lanka Law Reports[2008] 2 Sri L.R
DISSANAYAKEv
GENERAL MANAGER, RAILWAYS AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
FERNANDO, J.
SOMAWANSA, J.
FR 256/2005OCTOBER 13, 2006NOVEMBER 8, 2006FEBRUARY 27, 2007APRIL 5, 2007MAY 1, 21, 2007JULY 2, 2007
Fundamental Rights – Article 12(1) – Promotion – Marks for excellence in sports- Can sports and umpiring be treated as one and the same? Applications calledto fill 4 vacancies when it was alleged that there were 7 — Could this be taken upsubsequently? Time limit?
The petitioner a Sub-Inspector attached to the Railway Protection Force allegedthat, his fundamental rights guaranteed in Article 12(1) has been violated by the
SCDissanayake v General Manager, Railways and others235
non-granting of the promotion to the post of Inspector. The petitioner contendedthat the respondents had acted arbitrarily in calling for applications for only fourvacancies when in fact 7 vacancies had existed as at the date of calling forapplications. The petitioner also contended that he was not given any marks forexcellence in sports – as he had officiated as an umpire in several internationaland national cricket tournaments.
Held:
The notice calling for applications for the promotions to the post ofInspector have specifically referred to the number of vacancies as four.The applications were called to fill the said number of vacancies. If thesaid number of vacancies had been clearly stated in the notice, thepetitioner could have taken up that issue at the time the notice in questionwas published. It is well settled law that the time frame which theapplication has to be made to the Supreme Court specified in Article126(2) is mandatory – the question with regard to the number ofvacancies raised by the petitioner cannot be taken up as it is clearly outof time in terms of Article 126(2).
It is abundantly clear that sports and umpiring cannot be treated as oneand the same.
The petitioner's contention that he should be given full marks under thecategory of excellence in sports as another candidate was given marksfor excellence in sports on the basis of infringement of Article 12(1) -cannot be accepted.
The right to equality means that among equals the law should be equaland should be equally administered and thereby like shall be treatedalike. It is abundantly clear that provisions of Article 12(1) would providefor the equal protection of the law and shall not provide for equal violationof the law.
APPLICATION under Article 126)1) of the Constitution.
Cases referred to:
Satish Chanderv Union of India AIR 1953 SC 250.
Ram Prasad v State of Bihar MR 1953 SC 219.
C. W. Mackie and Company Ltd. v Hugh Molagoda, Commissioner Generalof Inland Revenue and others 1986 1 Sri LR 300.
Gamaethigev Siriwardane 1988 1 Sri LR 384.
Jayasekera v Wipulasena and others 1988 2 Sri LR 237.
R.P. Jayasooriya v R.C.A. Vandergert, Secretary, Ministry of Foreign Affairsand others SC FR 620/97 SCM 30.10.1998.
Jayawardane v Attorney-General and others FDD Vol. 1-175.
Gunawardane and others v E.L. Senanayake and others FDR Vol. 1-178.
Thadshanamoorthi v Attorney-General 1978-79-80 1 Sri LR 154.
236Sri Lanka Law Reports[2008] 2 Sri L.R
Mahenthiran v Attorney-General FRD Vol. 1-129.
Nama Sivayam v Gunawardena 1989 1 Sri LR 394.
Gomez v University of Colombo 2001 1 Sri LR 273.
Karunadasa v People's Bank SC 147/2004 SCM 20.6.2007.
Uditha Egalahewa with Gihan Galabadage for petitioner.
Harsha Fernando SSC for respondents.
Bimba Jayasinghe Tillakaratne DSG for respondents.
July 25, 2007
DR. SHIRANI BANDAR AN AYAKE, J.The petitioner, a sub-inspector attached to the Railway ProtectionForce of the Sri Lanka Railway Department, alleged that hisfundamental rights guaranteed in terms of Article 12(1) of theConstitution had been violated by the non-granting of the promotionto the post of Inspector, for which this Court had granted leave toproceed.
The fact of this application, as submitted by the petitioner, albeitbrief, are as follows:
The petitioner joined the Sri Lanka Railway Department as a sub-inspector of the Railway Protection Force on 02.05.1988 (P1).According to the relevant Scheme of Promotions, the petitioner'snext promotion was to the post of Inspector and the sub-inspectorswere eligible to make their applications for the said promotion oncompletion of seven (7) years of service in that post. Accordingly, thepetitioner became eligible for promotion to the post of Inspector on02.05.1995. Since the petitioner's initial appointment to the post ofsub-inspector in 1988, no applications were called for subsequentpromotions until 2002 (P2).
Applications were called for the promotions to the post ofInspector from among the sub-inspectors, who had completed seven
years in the said post. The notice calling for applications hadstated that there were four (4) vacancies as at the date of calling forapplications (P3).
In terms of the notice calling for applications for promotions to thepost of Inspector, a competitive examination was held on 19.07.2003.By letter dated 19.11.2003, the General Manager (Operations) hadinformed the petitioner that he had successfully completed the
Upon inquiry the petitioner had become aware that he had notbeen given marks adequately at the interview and on that basis hisallegations against the respondents were mainly two fold:
that he has not been given marks according to the Scheme ofRecruitment;
that there were seven (7) vacancies in the post of Inspector asat the date of calling for applications and such, the petitionershould have been appointed to the said post of Inspector.
The petitioner along with two others, who obtained the 5th and 7thposition in order of merit at the interview, had appealed to the 2ndrespondent through the 3rd respondent. They had referred to thethree (3) additional vacancies that were available as at the date ofcalling for applications for the post of Inspector and had requestedthat they be appointed to fill the aforesaid vacancies (P14 and P15).
By letters dated 20.06.2005 and 27.06.2005 the 3rd respondenthad referred the aforementioned appeals to the 2nd respondent andhad recommended that this matter be looked into (P16 and P17).Thereafter, the 2nd respondent, by his letter dated 27.06.2005 hadrequested the 3rd respondent to submit details of sub-inspectors,who had served the Sri Lanka Railway Force as at 27.01.2005. The
Competitive Examination
♦ Subject 1 58 marks
Subject 2 58 marks
Interview 56 marks
Total 172 marks
Dissanayake v General Manager, Railways and others
SC(Dr. Shirani Bandaranayake, J.)237
competitive examination and that the interview will be held on25.11.2003. The said interview was postponed on several occasionsand later was held on 23,09.2004. The results of the examination orthe interview were not published until 11.07.2005 (P8).
By letter dated 23.06.2005, four (4) sub-inspectors werepromoted to the posts of Inspector with effect from 19.07.2003 (P7).Upon inquiry, the 1st respondent had informed the petitioner that hehad been the 6th in order of merit at the interview and had obtainedmarks as follows:
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3rd respondent had furnished the relevant information by letter dated
(P18 and P19).
Accordingly the petitioner took up the position that the 1st to 3rdrespondents have acted arbitrarily in calling for applications for onlyfour(4) vacancies in the post of Inspector, when in fact seven (7)vacancies had existed as at the date of calling for applications. Insupport of this position it was further stated that posts in the Sri LankaRailway Protection Force had ceased to be cadre based and varyingnumbers have served in the post of Inspector at different points oftime.
In the aforementioned circumstances, the petitioner alleged thatthe petitioner's fundamental right to equality and equal protection ofthe law guaranteed in terms of Article 12(1) of the Constitution hadbeen violated by the 1st to 3rd respondents.
Learned Deputy Solicitor-General for the respondents contendedthat the petitioner cannot now challenge the number of vacanciesthat existed in these proceedings as the notice calling for applicationsfor the post of Inspector was in January 2001 and that it hadspecifically stated that the said notice was in respect of 'existingvacancies as of now'. Her position was that the number of vacancies,which existed at the time of the calling of the applications, had beenonly four (4).
The contention of the learned Counsel for the petitioner was thatthe petitioner was not given any marks for excellence in sportsdespite the fact that he was engaged in several extra curricularactivities during his period of service in the Sri Lanka RailwayDepartment.
In the circumstances let me now turn to consider the mainallegations referred to earlier, which were raised by the learnedCounsel for the petitioner.
(A) Marks for excellence in sports
Admittedly, the petitioner was not given any marks for excellencein sports. His allegation that he should have been given marks at theinterview for excellence in sports was based on the fact that he hadofficiated as an umpire in several international and national crickettournaments.
Dissanayake v General Manager, Railways and others
SC(Dr. Shirani Bandaranayake, J.)239
The petitioner had stated that he had also played cricket atnational level since 1990 and that he had submitted the relevantcertificates at the interview, which were submitted marked P32(a) toP32(h). Certificates marked as P32(a), (b), (c), (d) and (f) wereissued by the Sri Lanka State Services Cricket Association forparticipants at the Inter-club Tournament and the Annual Tournamentand the certificate marked as P32(e) was issued by the RailwaySports Club. The rest of the documents (P32(a), P32(h)) were newsitems, which stated that the petitioner had been selected as the bestumpire from among the cricket umpires' examination held in 1994.
Considering these certificates, the 2nd respondent in his affidavithad averred that marks under the heading of 'excellence in sports'was given for national level sports activities engaged in by the officerconcerned during his tenure of office, provided that the applicantproduces certificates indicating achievements in sports. Further itwas averred that umpiring was not considered as a category forwhich marks would be given, as umpiring was not considered asbeing 'an engagement in national level sports'.
A careful perusal of the petitioner's bio-data and the certificatessubmitted by him clearly reveals that most of his achievements are inthe field of umpiring. As stated earlier, the criteria stipulated in theallocation of marks at the interview, specifically stated that to amaximum of 10 marks could be given for 'excellence in sports'.Based on this criterion, the respondents had decided to allocatemarks for participating in national level sports activities by the officerconcerned during his tenure of office. For this purpose, admittedly, itis necessary for the officer in question to produce certificatesindicating his achievements in sports. Umpiring was not consideredby the respondents, quite correctly in my view, as a category forwhich marks could be given, as that was not considered being 'anengagement in national level sports'.
It is not disputed that the marks were to be allocated forexcellence in sports. The word 'sport' is defined in the Oxford EnglishDictionary (2nd Edition, Vol. XVI, Clarendon Press, 1989 pg. 315) toread as follows:
"Participation in games or exercises, esp. those of an athleticcharacter or pursued in the open air; such games oramusements collectively."
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The words 'umpire' and umpiring' on the other hand, have beendefined in the following terms (Oxford English Dictionary, (supra) Vol.
– XVIII pg. 836).
"umpire – One who decides between disputants or contending
parties and whose decision is usually accepted asfinal; an arbitrator.
Umpiring -The action of acting as an umpire, exp. of doubtful
points in game."
Considering the aforementioned definitions, it is abundantly clearthat 'sports and umpiring' cannot be treated as one and the sameand if a decision had been taken by the respondents to allocatemarks for 'excellence in sports' that cannot be used to adduce marksfor umpiring. Accordingly, I am of the view that the respondentscannot be found fault with for not allocating marks for the certificatessubmitted by the petitioner on umpiring.
Learned Counsel for the petitioner also contended that, therespondents had not allocated marks for excellence in sports,although the petitioner had taken part in several cricket tournaments.As pointed out earlier, the certificates submitted by the petitionerwere from the Sri Lanka Railway Association, which cannot beaccepted as achievements in sports at the national level.
Learned Counsel for the petitioner, took up the position that theState Counsel, who appeared for the respondents at thecommencement of the hearing had produced a certificate issued bythe 'Government Service Sports Society Limited' and had stated thatit has been accepted as national level sports and that candidate, whowas one of the promotees was allocated marks for that certificate.Learned Counsel for the petitioner therefore contended that if thesaid person was given marks for the said certificate issued by the’Government Service Sports Society Limited', the petitioner shouldalso be given full marks under the category of 'excellence in sports'.Learned Counsel for the petitioner had however conceded that thesaid person has been given marks for excellence in sports althoughhe had never taken part in national level sports activities.
Accordingly, would it be possible for this Court to come to aconclusion that, because the other candidate was given marks for
Dissanayake v General Manager, Railways and others
SC(Dr. Shirani Bandaranayake, J.)241
sports, although such was not at the national level, that the petitioneralso should be given marks for excellence in sports on the basis ofan infringement of fundamental rights guaranteed in terms of Article12(1) of the Constitution?
Article 12(1) of the Constitution, which deals with the right toequality reads as follows:
"All persons are equal before the law and are entitled to theequal protection of the law".
The right to equality in simple terms, means that among equals,the law should be equal and should be equally administered andthereby the like should be treated alike (Satish Chander v Union ofIndiaP), Ram Prasad v State of Bihari2). Sir Ivor Jennings, Law ofthe Constitution, 3rd Edition, 49). The purpose of the concept of theright to equality is to secure every person against intentional andarbitrary discrimination. However, it is abundantly clear that theprovisions in terms of Article 12(1) of the Constitution would provideonly for the equal protection of the law and shall not provide for theequal violation of the law. It cannot be understood as requiringofficers to act illegally because they have acted illegally previously.This position was considered by Sharvananda, C.J., in C.W. Mackieand Company Ltd. v Hugh Molagoda, Commissioner General ofInland Revenue and others <3>, where it was clearly stated that,
"But the equal treatment guaranteed by Article 12 is equaltreatment in the performance of a lawful act. Via Article 12, onecannot seek the execution of any illegal or invalid act.Fundamental to this postulate of equal treatment is that it shouldbe referable to the exercise of a valid right, founded in law incontradistinction to an illegal right which is invalid in law."
In Mackie's case the petitioner Company had paid the BusinessTurnover Tax and had complained that the denial of the refund of thesaid tax paid by it was mala fide and constitutes unlawful discretionas the respondents had not collected or enforced the payment of thesaid tax from other dealers in rubber, who were similarly placed andliable to pay the said tax.
This principle stipulated in C.W. Mackie (supra) was referred toand followed in Gamaethige v Siriwardand4>, where MarkFernando, J. stated thus:
242Sri Lanka Law Reports[2008] 2 Sri L.R
"Two wrongs do not make a right, and on proof of thecommission of one wrong the equal protection of the law cannotbe invoked to obtain relief in the form of an order compellingcommission of a second wrong."
This position was considered and affirmed once againnJayasekera v Wipulasena and others<5> without referring to C.W.Mackie case (supra), where it was held by G.P.S. de Silva, J. (as hethen was) that Article 12(1) cannot confer on the petitioner a right towhich he is not entitled in terms of the very contract upon which hefound his complaint of 'unequal treatment’.
This question was again considered in R.P. Jayasooriya v R.C.A.Vandergert, Secretary, Ministry of Foreign Affairs and others,where reference was made to the decision in C. W. Mackie (supra) tohold that Article 12(1) of the Constitution provides only for the equalprotection of law and not for the equal violation of the law.
It is to be borne in mind that the petitioner had not made any ofthe successful candidates respondents nor has he prayed for thecancellation and holding a fresh interview in order to re-evaluate allthe candidates.
In such circumstances, it is apparent that the petitioner cannotrely on the provisions of Article 12(1) of the Constitution, whichguarantees the right to equality and equal protection of the law tocompel the relevant officers to act illegally and add marks under theheading of 'excellence in sports', because it is alleged that they haveacted illegally with regard to another candidate.
(B) The number of vacancies in the post of Inspector
Learned Counsel for the petitioner contended that although interms of the Scheme of Promotion (P2) and the notice calling forapplications (P3) had stated that there were only four (4) vacanciesin fact there were seven (7) vacancies in the post of Inspector andaccordingly the petitioner, who was placed sixth in order of meritshould have been selected for the promotion to the post of Inspector.
It is not disputed that the notice calling for applications for thepromotions to the Post of Inspector by document dated 07.01.2002,had specifically mentioned that there are only four (4) vacancies tobe filled. The said notice had further stated that these four (4)
Dissanayake v General Manager, Railways and others
SC(Dr. Shirani Bandaranayake, J.)242
vacancies should be filled on the basis of the highest marks obtainedat the written competitive examination, the marks awarded forseniority and at the interview. It was also clearly stated that a waitingfist would not be maintained in regard to the said promotions for thepost of Inspector.
The contention of the learned Counsel for the petitioner was that,prior to the competitive examination, the petitioner and several othershad inquired from the administration as to the actual number ofvacancies and they had been informed that – although six (6)Inspectors were retired, two (2) of them had retired under PublicAdministration Circular No. 44/90 and as such according to the saidcircular these vacancies cannot be filled. The petitioner's position isthat the said contention is not correct and those vacancies could befilled.
Learned Counsel for the petitioner in his written submissions hadclearly stated that by letter dated 14.06.2005 the petitioner hadinformed the 2nd respondent that seven vacancies in the post ofInspector were available as at the date of calling for applications.According to the petitioner, two vacancies arose as a result of thecancellation of Public Administration Circular No. 44/90 and the thirdvacancy was due to one N.W.A.C. de Silva's promotion to the post ofAssistant Superintendent being backdated to 15.01.1993.
The 2nd respondent, being the Additional General Manager(Administration) in his affidavit had categorically stated that, thedepartmental cadre is periodically reviewed and with regard to theestimates for the year 2002, the approved cadre in the grade ofInspector had been 13(R3). When applications for the said post werecalled in 2002, nine (9) officers had been holding the posts ofInspector and accordingly only 4 vacancies had existed at the time ofcalling for applications as stated in the notice dated 07.01.2002.
The 2nd respondent had further averred that the appeals referredto earlier sent by the petitioner had been considered, but relief couldnot be granted as the number of vacancies in the posts of Inspectorwere limited to four (4).
It is to be noted that, the applications for the promotion to the postof Inspector were called by notice dated 07.01.2002 (P3), which asstated earlier, has specifically referred to the number of vacancies as
244Sri Lanka Law Reports[2008] 2 Sri L.R
four (4). The applications were therefore called for to fill the saidnumber of vacancies without maintaining a waiting list. In suchcircumstances it is apparent that if the said number of vacancies hadbeen clearly stated in the notice (P3), the petitioner should havetaken up that issue at the time the notice in question was published.
It is now well settled law that the time frame within which anapplication has to be made to the Supreme Court, specified in Article126(2) of the Constitution, is mandatory. A long line of cases hadconsidered this matter (Jayawardane v Attorney-General andothersd), Gunawardane and others v E.L. Senanayake andothers^8), Thadshanamoorthi v Attorney-General (Q) and Mahenthiranv Attorney-Generalh°>, Gamaethige v Siriwardane (supra), NamaSivayam v Gunawardane<11), Gomez v University of Colombo<12>,Karunadasa v The People's Bank!'8).
As correctly submitted by the learned Deputy Solicitor-General forthe respondents, the question with regard to the number ofvacancies now raised by the petitioner cannot be taken up in theseproceedings as it is clearly out of time in terms of Article 126(2) of theConstitution.
On a consideration of the aforementioned circumstances I holdthat the petitioner has not been successful in establishing that hisfundamental rights guaranteed in terms of Article 12(1) of theConstitution had been violated by the 1st to 3rd respondents. Thisapplication is accordingly dismissed, but in all the circumstances ofthis case, without costs.
FERNANDO, J.I agree.
SOMAWANSA, J.- l agree.
Application dismissed.