014-SLLR-SLLR-2007-V-2-DISSANAYAKE-v.-PRIYAL-DE-SILVA.pdf
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DISSANAYAKE
v
PRIYAL DE SILVA
SUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
FERNANDO, J.
SOMAWANSA, J.
SC FR 256/2005OCTOBER 13, 2006NOVEMBER 8. 2006FEBRUARY 27, 2007APRIL 5, 2007JULY 2, 2007
Constitution – Article 12 (1) – Right to equality – Equal protection of the lawand not equal violation of the law — Time frame — Mandatory? — Excellence insports – Can sports and umpiring be treated as one and the same?.
The petitioner, a Sub-Inspector attached to the Railway Protection Force of theSri Lanka Railway Department alleged that his fundamental rights guaranteedin terms of Article 12(1) had been violated. He claimed that, he was not givenmarks for excellence in sports – as he has officiated international and nationalcricket tournaments. He further alleged that another candidate was givenmarks for sports, although such was not at the national level.
Held:
The right to equality means that among equals, the law should be equaland should be equally administered and thereby the like should be treatedalike. Provisions in Article 12 (1) would only provide for the equal protectionof the law and shall not provide for the equal violation of the law.
It cannot be understood as requiring officers to act illegally because theyhave acted illegally previously.
It is abundantly clear that 'sports and umpiring' cannot be treated as oneand tile same and if a decision had been taken to allocate marks for‘excellence in sports that cannot be used to adduce marks for umpiring1.
Time frame within which an application has to be made to the SupremeCourt, specified in Article 126(2) is mandatory.
APPLICATION under Article 126 of the Constitution.
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Cases referred to:
Satish Chander v Union of India AIR 1953 SC 250.
Ram Prasadv State of Bihar AIR 1953 SC 219.
C. W. Mackie and Company Ltd. v Hugh Molagoda, Commissioner Generalof Inland Revenue and Offers 1986 1 Sri LR 300.
Gamaethigev Siriwardane 1988 1 Sri LR 384.
Jayasekera v Wipulasena and others 1988 2 Sri LR 237.
R.P. Jayasuriya v R.C.A. Vandergert, Secretary, Ministry of Foreign Affairsand Others SC FR 620/97 SCM 30.10.1998.
Jayawardane v Attorney-Genera/ FRD Vol. 1 175.
Gunawardane and others v E.L. Senanayake and offers, FRD Vol. 1.175.
Thadchanamoorthy v Attorney-General 1979 79 801 Sri LR 154 (SC)
Mahenthiran v Attorney-General FRG, Vol. 1 175.
Namasivayanv Gunawardane 1989 1 Sri LR 394.
Gomez v University of Colombo 2001 1 Sri LR 273.
Karunadasa v People's Bank SC 147/2007 SCM 20.6.2007.
Uditha Egalahewa with Gihan Galabodage for petitioner.
Harsha Fernando SSC for respondents.
Bimba Jayasinghe Tillekeratne DSG for respondents.
Curadv.vuit.
July 25, 2007
DR. SHIRANI BANDARANAYAKE, J.The petitioner, a Sub-inspector attached to the RailwayProtection Force of the Sri Lanka Railway Department, alleged thathis fundamental rights guaranteed in terms of Article 12(1) of theConstitution had been violated by the non-grantihg of the promotionto the post of Inspector, for which this Court had granted leave toproceed.
The facts of this application, as submitted by the petitioner,albeit brief, are as follows:
The petitioner joined the Sri Lanka Railway Department as aSub-Inspector of the Railway Protection Force on 02.05.1988 (PI).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,the petitioner became eligible for promotion to the post of Inspectoron 02.05.1995. Since the petitioner's initial appointment to the post
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of sub-inspector in 1988, no applications were called for
subsequent promotions until 2002 (P2).
Applications were called for the promotions to the post ofInspector from among the sub-inspectors, who had completedseven (7) years in the said post. The notice calling for applicationshad stated that there were four (4) vacancies as at the date ofcalling for applications (P3).
In terms of the notice calling for applications for promotions tothe post of Inspector, a competitive examination was held on19.07.2003. By letter dated 19.11.2003, the General Manager(Operations) had informed the petitioner that he had successfullycompleted the competitive examination and that the interview willbe held on 25.11.2003. The said interview was postponed onseveral occasions and later was held on 23.09.2004. The results ofthe examination or the interview were not published until
(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 petitionerthat he had been the 6th in order of merit at the interview and hadobtained marks as follows:
Competitive Examination
Subject 1 58 marks
Subject 2 58 marks
Interview 56 marks
Total 172 marks
Upon enquiry the petitioner had become aware that he had notbeen given marks adequately at the interview and on that basishis allegations against the respondents were mainly two fold.
that he has not been given marks according to the Schemeof Recruitment;
that there were seven (7) vacancies in the post of Inspectoras at the date of calling for applications and as such, the
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petitioner should have been appointed to the said post ofInspector.
The petitioner along with two others, who obtained the 5th and7th positions in order of merit at the interview, had appealed to the2nd respondent through the 3rd respondent. They had referred tothe three (3) additional vacancies that were available as at the dateof calling for applications for the post of Inspector and hadrequested that they be appointed to fill the aforesaid vacancies(P14 and P 15).
By letters dated 20.06.2005 and 27.06.2005 the 3rd respondenthad referred the aforementioned appeals to the 2nd respondentand had recommended that this matter be looked into (P16 andP17). Thereafter, the 2nd respondent, by his letter dated
had requested the 3rd respondent to submit details ofsub-inspectors, who had served the Sri Lanka Railway Force as at27.01.2005. The 3rd respondent had furnished the relevantinformation by letter dated 05.07.2005 {P18 and (19)}.
Accordingly the petitioner took up the position that the 1st to 3rdrespondents have acted arbitrarily in calling for applications foronly four (4) vacancies in the post of Inspectors, when in fact seven(7) vacancies had existed as at the date of calling for applications.In support of this position it was further stated that posts in the SriLanka Railway Protection Force had ceased to be cadre based andvarying numbers have served in the post of Inspector at differentpoints of time.
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 respondentscontended that the petitioner cannot now challenge the number ofvacancies that existed in these proceedings as the notice calling forapplications for the post of Inspector was in January 2001 and thatit had specifically stated that the said notice was in respect of'existing vacancies as of now'. Her position was that the number ofvacancies, which existed at the time of the calling of theapplications, had been only four (4).
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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.
Marks for excellence in sports
Admittedly, the petitioner was not given any marks forexcellence in sports. His allegation that he should have been givenmarks at the interview for excellence in sports was based on thefact that he had officiated international and national crickettournaments.
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)to P32(h). Certificates marked as P32(a), (b), (c), (d) and (f) wereissued by the Sri Lanka Sate Service Cricket Association forparticipants at the Inter-club Tournament and the AnnualTournament and the certificate marked as P32(c) was issued by theRailway Sports Club. The rest of the documents (P32(a), P32(h))were news items, which stated that the petitioner had beenselected as the best umpire from among the cricket umpiresexamination held in 1994.
Considering these certificates, the 2nd respondent in hisaffidavit had averred that marks under the heading of 'excellence insports' was given for national level sports activities engaged in bythe officer concerned during his tenure of office, provided that theapplicant produces certificates indicating achievements in sports.Further it was averred that umpiring was not considered as acategory for which marks would be given, as umpiring was notconsidered as being 'an engagement in national level sports.'
A careful perusal of the petitioner's bio-data and the certificatesubmitted by him clearly reveals that most of his achievements arein the field of umpiring. As stated earlier, the criteria stipulated in the
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Dissanayake v Priyal da Sttva
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allocation of marks at the interview, specifically stated that upto 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 theofficer concerned during his tenure of office. For this purpose,admittedly, it is necessary for the officer in question to producecertificates indicating his achievements in sports. Umpiring was notconsidered by the respondents, quite correctly in my view, as acategory for which marks could be given, as that was notconsidered being 'an engagement in national level' sports'.
It is not disputed that the marks were to be allocated forexcellence in sports. The word 'sports' is defined in the OxfordEnglish Dictionary (2nd Edition, Vol XVI, Clarendon Press, 1989pg. 315) to read as follows:
"Participation in games or exercises, esp. those of an athleticcharacter or pursued in the open air; such games oramusements collectively."
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 usuallyaccepted as final;-an arbitrator.
Umpiring -The action of acting as an umpire, exp. of doubtfulpoints in game."
Considering the aforementioned definitions, it is abundantlyclear that "sports and umpiring1 cannot be treated as one and thesame and if a decision had been taken by the respondents toallocate marks for 'excellence in sports' that cannot be used toadduce marks for umpiring. Accordingly, I am of the view that therespondents cannot be found fault with for not allocating marks forthe certificates submitted 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
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tournaments. As pointed out earlier, the certificates submitted bythe petitioner were from the Sri Lanka Railway Association, whichcannot be accepted as achievements in sports at the nationallevel.
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 statedthat it has been accepted as national level sports and thatcandidate, who was one of the promotees was allocated marks forthat certificate. Learned Counsel for the petitioner thereforecontended that if the said person was given marks for the saidcertificate issued by the 'Government Service Sports SocietyLimited1, the petitioner should also be given full marks under thecategory of ‘excellence in sports'. Learned Counsel for thepetitioner had however conceded that the said person has beengiven marks for excellence in sports although he had never takenpart 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 forsports, although such was not at the national level, that thepetitioner also should be given marks for excellence in sports onthe basis of an infringement of fundamental rights guaranteed interms of Article 12(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 equally administered and thereby the like shouldbe treated alike Satish Chanderv Union of India^, Ram Prasad vState of Bihat<2), (Sir Ivor Jennings, Law of the Constitution, 3rdEdition 49). The purpose of the concept of the right to equality is tosecure every person against intentional and arbitrarydiscrimination. However, it is abundantly clear that the provisions interms of Article 12(1) of the Constitution would provide only for theequal protection of the law and shall not provide for the equal
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violation of the law. It cannot be understood as requiring officers toact illegally because they have acted illegally previously. Thisposition was considered by Sharvananda, C.J., in C.W. Mackieand Company Ltd. v Hugh Molagoda, Commissioner General ofInland Revenue and others®), where it was clearly stated that,
"But the equal treatment guaranteed by Article 12 is equaltreatment in the performance of a lawful act. Via Article12, one cannot seek the execution of any illegal or invalidact. Fundamental to this postulate of equal treatment isthat it should be referable to the exercise of a valid right,founded in law in contradistinction to an illegal right whichis invalid in law."
In Mackie’s case, the petitioner Company had duly paid theBusiness Turnover Tax and had complained that the denial of therefund of the said tax paid by it was mala fide and constitutesunlawful discretion as the respondents had not collected orenforced the payment of the said tax from other dealers in rubber,who were similarly placed and liable to pay the said tax.
This principle stipulated in C.W. Mackie (supra) was referred toand followed in Gamaethige v SiriwardeneW where MarkFernando, J. stated thus:
"Two wrongs do not make a right, and on proof of thecommission of one wrong the equal protection of the lawcannot be invoked to obtain relief in the form of an ordercompelling commission of a second wrong."
This position was considered and affirmed once again inJayasekera v Wipulasena and Others®) without referring to C.W.Mackle's case (supra), where it was held by G.P.S. de Silva, J. (ashe then was) that Article 12(1) cannot confer on the petitioner aright to which he is not entitled in terms of the very contract uponwhich he found his complaint of 'unequal treatment1.
This question was again considered in R.P. Jayasooriya vR.C.A. Vandergert, Secretary, Ministry of Foreign Affairs andothers*6) where reference was made to the decision in C.W. Mackie(supra) to hold that Article 12(1) of the Constitution provides only forthe equal protection of law and not for the equal violation of the law.
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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 theyhave acted illegally with regard to another candidate.
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 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)vacancies should be filled on the basis of the highest marksobtained at the written competitive examination, the marksawarded for seniority and at the interview. It was also clearly statedthat a waiting list would not be maintained in regard to the saidpromotions for the post of Inspector.
The contention of the learned Counsel for the petitioner was thatprior 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) Inspectorswere retired, two (2) of them had retired under Public AdministrationCircular No. 44/90 and as such according to the said circular thesevacancies cannot be filled. The petitioner's position is that the saidcontention is not correct and those vacancies could be filled.
Learned Counsel for the petitioner in his written submissionshad clearly stated that by letter dated 14.06.2005 the petitioner had
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informed 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 thethird vacancy was due to one N.W.A.C. de Silva's promotion to thepost of Assistant Superintendent being back dated 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 postwere called in 2002, nine (9) officers had been holding the posts ofInspector and accordingly only 4 vacancies had existed at the timeof calling for applications as stated in the notice dated 07.01.2002.
The 2nd respondent had further averred that the appealsreferred to earlier sent by the petitioner had been considered, butrelief could not be granted as the number of vacancies in the postsof Inspector were limited to four (4).
It is to be noted that, the applications for the promotion to thepost of Inspector were called by notice dated 07.01.2002 (P3),which as stated earlier, has specifically referred to the number ofvacancies as four (4). The applications were therefore called for tofill the said number of vacancies without maintaining a waiting list.In such circumstances it is apparent that if the said number ofvacancies had been clearly stated in the notice (P3), the petitionershould have taken up that issue at the time the notice in questionwas 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 andothersif7), Gunawardane and others v E.L. Senanayake and others^),Thadchanamoorthi v Attorney-General and Mahenthiran v Attorney-Genera^0) (supra 129), Gamaethige v Siriwardane (supra 385),Namasivayamv Gunawardane(u), Gomez v University of Colombo!12>Karunadasa v The People's Bank <13).
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As correctly submitted by the learned Deputy Solicitor General forthe respondents, the question with regard to the number of vacanciesnow raised by the petitioner cannot be taken up in these proceedingsas it is clearly out of time in terms of Article 126(2) of the Constitution.
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.—I agree.
Application dismissed.