DON KARUNARATNE
v.THE MONETARY BOARD OF THE CENTRAL BANKOF SRI LANKA AND OTHERS
SUPREME COURTBANDARANAYAKE, J.,
KULATUNGA, J. AND WADUGODAPITIYA, J.
SC APPLICATION NO. 144/91JUNE 17, 1992.
Fundamental Rights – Change of scheme of promotion – Discrimination – Article12 (1) of the Constitution.
Held :
The present employees of the Central Bank (including the petitioner) have novested right to preclude the Bank from altering the scheme of promotion if itwere necessary to do so in the interest of the service. Such alteration is legitimatesubject to the qualification that it should not infringe Article 12 (1).
The fact that officers had in the past been promoted without a written test asproposed under the new scheme will not constitute discrimination.
The allegation that the proposed written test is unreasonable in that it is likelyto place the petitioner and other officers in his position at a disadvantage vis-evis graduate officers who are eligible for promotion under the existing schemealjng with the petitioner and other officers on the basis of a prescribed periodof service and a gbod record of work and conduct, must be established uponsufficient material failing which, the charge of discrimination will fail.
Cases referred to :
Perera v. University Grants Commission 1 FRD 103.
Gunaratne et al v. Sri Lanka Telecom SC Application No. 70/92 SC Minutes24.8.92.
APPLICATION for infringement of fundamental rights under Article 12 (1) of theConstitution.
Ran Banda Seneviratne for petitioner.
A R. Wickremanayake S.C. for 1st and 2nd respondents.
3rd respondent absent and unrepresented.
Cur. adv. vult.
2
Sri Lanka Law Reports
[1993] 2 Sri LR.
September 25, 1992.
KULATUNGA, J.
The petitioner, who is a non-staff class grade ill clerk of the CentralBank of Sri Lanka (The " Bank ") complains that the amendmentdated 30.11.90 (P5) to the scheme of recruitment for promotion tonon-staff class grade IV (Staff Assistant) in the Bank's service (whichwas sought to be implemented in November 1991) is violative ofhis rights under Articles 12 (1), 12 (2) and 14 (g) of the Constitution.P5 states that in future promotions will be based on the record ofwork and seniority (as previously) as well as on the performance ata written examination which would attract 50% of the total marks,as follows
General Aptitude (non-quantitative) 20 marks
Sri Lanka's Economy15marks
Language (Sinhala/Tamil/English at
officer’s choice)15marks
50 marks
It is the position of the petitioner that the proposed scheme forpromotion should be applied only to the new entrants and that itwould otherwise be violative of his rights under Articles 12 (1) and12 (2) of the Constitution in that-
It would place old entrants like the petitioner who had joinedthe Bank as far back as 1963 at a disadvantage consideringthat others who were similarly circumstanced as the petitionerhave already been promoted under the existing scheme andhave since risen to the Staff grade ;
the petitioner and others who joined the service on thebasis of the minimum qualification of G.C.E. (O. Level) with5 credits cannot compete with their fellow officers who aregraduates ;
the requirement of a written test is only a colourable exercisedesigned to deny promotions to the old hands like the petitionerwho are members of the Central Bank Employees' Unionwhich is not considered pro-government. The petitioner statesthat he is the General Secretary of the said Union.
sc
Don Kaiunaratne v. The Monetary Board of the Centred Bank of
Sri Lanka and others (Kulatunga, J.)
3
The petitioner also invokes Article 14 (g), possibly on the groundthat in the circumstances set out at (b) and (c) above the-impugnedscheme constitutes a total denial of his right to promotion amountingto a deprivation of the freedom to engage in his occupation.
The petitioner has joined as parties to this application -The Monetary Board of the Bank (the 1st respondent), TheDirector of Establishments of the Bank (the 2nd respondent) andMrs. D. C. A. Dias (the 3rd respondent). The petitioner states thathe joined the Bank as a non-staff class grade II Clerk on 15.08.63(P1) and that the 3rd respondent too joined the Bank in thesame capacity about the same time. The 1st and the 2ndrespondents admit this fact. The petitioner adds that the 3rdrespondent has been promoted to non-staff class Grade IV on
(P7) despite the fact that she had been discontinuedfrom service upon a vacation of post notice (in 1980) and hadbeen later reappointed ; and that her appointment on promotionhas been back dated by two years. The petitioner alleges that shehas been afforded favoured treatment and was exempted fromthe impugned test because she is the Secretary of the Seva VanithaUnit in the Central Bank which enjoys government patronage.
The 2nd respondent states that under the scheme that existed(upto the time of the impugned revision) (exhibit ‘X’) promotions wereeffected on the basis of merit and seniority ; that the proposed writtentest is but a means of evaluating merit, and hence the fundamentalbasis of promotion has not been changed or altered ; that non-staff class Grade IV being a middle level supervisory grade, sucha test for promotion to that grade is necessary and rational and assuch it is not discriminatory. The 2nd respondent denies the allegationthat the said test has been imposed as a devise for denying thepetitioner's promotion on account of his membership of the TradeUnion to which he belongs.
In defence of the promotion of the 3rd respondent (which occurredprior to the period when the prosposed written test was to becomeeffective), the 2nd respondent states that although the petitioner andthe 3rd respondent joined the Bank's service at the same time, the3rd respondent was able to obtain her promotion to non-staff classGrade III in 1971, after a period of 7 years which is the minimumperiod of service required in Grade II for promotion ; but the petitioner
4
Sri Lanka Law Reports
[1993] 2 Sri L.R.
was found suitable for promotion to non-staff class Grade III onlyin 1974, after 11 years' of service in Grade II; that the 3rd respondentwas eligible for promotion to non-staff class Grade IV from 1980having completed the requisite period of service in Grade III but shelost the opportunity of such.promotion by reason of the terminationof her service upon a vacation of post notice when she overstayedher period of leave abroad ; that on an appeal made by her, theMonetary Board re-employed her as a new recruit (in 1983) andplaced her on the initial salary of non-staff class Grade III withoutthe benefit of her past service, except for the purpose of pension; and that in view of this she could not be promoted to Grade IVuntil she became eligible for it in the normal course.
However, in 1989 on an appeal by the 3rd respondent, theMonetary Board decided to restore her seniority and place her onthe salary point which she drew at the time she was served witha vacation of post notice ; whereupon she became eligible for promotionto staff class Grade IV with effect from 1983, on the basis of seniorityand the requisite marks for promotion. The 2nd respondent furtherstates that since 1983 the 3rd respondent consistently had highermarks than the last promotee from 1983 onwards. However, she couldnot be promoted only for the reason that she had been re-employedas a new recruit in 1983 ; and even though upon the Board decisionin 1989 she qualified for promotion with effect from 1983, she wasgiven her promotion only with effect from 01.01.89. The 2ndrespondent denies the allegation that she was promoted because ofher position as the Secretary of the Seva Vanitha Unit in the Bank.
In considering the allegation made by the petitioner in respectof the 3rd respondent, the following matters are also relevant
The Board decision in 1989 amounted to a withdrawal of thevacation of post notice served on her in 1980 whereupon shebecame eligible for promotion on the basis of a reinstatementwithout any break in service.
Although the petitioner alleges that she was exempted fromthe proposed written test, she was promoted on 05.09.91before the date from which the said test was to becomeeffective i.e. November 1991 ; and her appointment itself was
sc
Don Kaninaratne v. The Monetary Board of the Central Bank of
Sri Lanka and others (Kulatunga, J.)
5
made effective from 1989, which is a date anterior to thepromulgation of the revised scheme for promotion. There wasthus no exemption of the 3rd respondent from the impugned test.
In his petition, the petitioner states that he seeks no reliefagainst the 3rd respondent and does not (expressly or impliedly)pray for a declaration that the 3rd respondent's promotion tonon-staff class Grade IV was invalid.
My conclusion is that on the basis of the above material, theallegation touching the 3rd respondent's promotion fails.
During the hearing of this application, the learned Counsel for thepetitioner informed us that he is not contending that the 3rdrespondent's appointment is invalid and that the petitioner's onlycomplaint is that he himself had not been promoted under theexisting scheme, without a written test. The relief prayed for by himis a declaration that the revised scheme for promotion introduced byP5 and the consequent steps (which I shall presently refer to) areinvalid as being violative of his rights under Articles 12 (1), 12 (2)and 14 (g) of the Constitution. The petitioner is thus claiming theright to be considered for promotion under the existing scheme,without having to sit for the proposed written test.
Assuming that the petitioner has the right to promotion under theexisting scheme* the 2nd respondent avers that even under the saidscheme the petitioner has failed to attain the requisite standard forpromotion and that consequently, several of his juniors have obtainedpromotions over him. In his counter affidavit, the petitioner does notspecifically deny the said averment but only makes a general denialof the averments contained in the 2nd respondent's affidavit" whichare inconsistent" with the petitioners averments contained in hisoriginal affidavit and adds that the averments in the 2nd respondent'saffidavit are bold statements and bare assertions that are notsupported by any documentary evidence. I see no difficulty whichwould have precluded the petitioner from specifically denying theaverment that his performance does not merit his promotion andthat on that basis officers junior to him have been promoted overhim. In the circumstances, the petitioner is not entitled to demandstrict proof of the facts alleged against him and the burden has notshifted to the 2nd respondent to establish such facts by documentaryevidence.
6
Sri Lanka Law Reports
[1993] 2 Sri LR.
I am, therefore, constrained to accept the 2nd respondents versionthat the petitioner is not suitable for promotion even under the existingscheme. As such, there has been no discrimination by the Bank infailing to promote the petitioner to Grade IV under the scheme.
However, the main issue we have to determine is that (even ifthe petitioner is presently not suitable for promotion) whether theimpugned scheme is per se violative of his fundamental rightsand hence void. This Court has the power in appropriate cases todetermine that a scheme for selection of persons for purposes suchas admission to the University or promotion to a higher post is void.In such cases, aggrieved persons may challenge such schemeas soon as it is made and without having to await its actual imple-mentation. Perera v. University Grants Commission <’> Gunaratne etal v. Sri Lanka Telecom (2>. I propose to consider this issue underArticle 12 (1) of the Constitution. The petitioner has failed to establishthe alleged infringement of Article 12 (2). All that this Court has beforeit in that regard is a suggestion that the impugned scheme has beenimposed with the object of denying the petitioner and the old entrantslike him the prospects of promotion, in view of their membership ofthe Trade Union to which they belong as the said Union is notconsidered pro-government. However, there is no evidence tosupport this suggestion. The petitioner has also failed to establishthe aliened infringement of Article 14 (g) because even if it were tobe assumed that the impugned scheme is violative of Article 12 (1),the material before us does not warrant a finding that the said schemeamounts to a total denial of the petitioners freedom to engage inhis occupation in the Bank.
The petitioner has produced marked 1 X 1 the existing schemeof promotion in the Bank which had been promulgated in 1973 andsubmits that the impugned scheme should apply only to the newentrants. I do not agree that the present employees of the Bankincluding the petitioner have any such vested right to preclude theBank from altering the scheme of promotion if it were necessaryto do so in the interest of the service. Such alteration is legitimatesubject, however, to the qualification that it should not infringeArticle 12 (1). However, the main grievance of the petitioner asappears in the protests addressed by his Union to the Governor ofthe Bank on 10.12.90 (P6), 25.09.91 (P6a) and 01.10.91 (P66) isthat the old entrants are unable to compete with their colleagues who
sc
Don Karunaratne v. The Monetary Board of the Central Bank of
Sri Lanka and others (Kulatunga, J.)
7
are graduates, if all of them have to sit for the proposed test. Theydemand that the employees in non-staff class Grade III who haveserved in that grade for 15 years or such employees having a totalperiod of 25 years' service in the Bank be promoted to non-staff classGrade IV without being subjected to the proposed test. The petitioneradds that several of the employees who had joined the service asnon-staff class Grade III officers have since risen to the staff rankhaving received promotions under the existing scheme; and that thisfact constitutes additional evidence of discrimination.
In view of my finding that the petitioner has no vested rightto promotion under the existing scheme and that the Bank is entitledto revise the scheme of promotion, the fact that officers had inthe past been promoted without a written test will not constituteevidence of discrimination. However, the petitioner's grievancevis-a -vis graduates require careful consideration in the light of theevidence placed before us.
The scheme of promotion marked ( ' X ' is quite complex butit is beyond doubt that promotion in the Bank's service is basedmore on the existence of positive merit than mere seniority. Theservice is divided broadly into three classes (a) minor employeesclass ; (b) non-staff class ; and (dj staff class, each of which consistsof four grades. Promotion from a lower to a higher grade within aclass or promotion from one class to the next higher class resultsin an increase‘in the scale of salary payable to an officer. Minoremployees class consists of Labourers, Peons, Drivers, TelephoneOperators, Binders, Duplicating Machine Operators, Cycle Orderliesand Currency Attenders. Within this class, promotion to Grade II isbased on " a very good record of work and conduct "; the criteriafor promotion to Grade III are “ an excellent record of service "and 4 years, service in Grade II; and the criteria for promotionfrom Grade III to the Supervisory Peons' Grade are " a very goodrecord " of not less than 10 years' service in Grade III ; and in allcases of promotion, a good record of attendance, punctuality andconduct will be insisted upon.
Minor employees are promoted to non-staff class Grade I onthe satisfaction of different criteria in particular cases. The followingsituations are noteworthy
8
Sri Lanka Law Reports
[1993] 2 Sri L.R.
A minor employee with 8 years' service in the Bank is eligiblefor promotion to non-staff class Grade I (Assistant Cashier) aftersitting for an examination for promotion in that capacity.
Other minor employees are eligible for promotion to non-staff class Grade I upon passing a test approved by the Boardand subject to service and other requirements prescribed bythe Board e.g. the qualification of a pass in the S.S.C. or G.C.E(O' Level) plus not less than 5 years' good service in the minoremployees class.
Senior minor employees functioning as TelephoneOperators, Binders or Duplicating Machine Operators with " a verygood 0 record of 5 years' service in respect of work, conduct,attendance and punctuality are eligible to be regraded asofficers of non-staff class Grade I.
Senior minor employees functioning as Peons, CycleOrderlies and Currency Attenders who are under 50 years of ageare eligible to be regraded as officers of non-staff class GradeI on passing a written examination.
The following criteria for promotions within the non-staff classgrade are noteworthy
For promotion from Grade I to Grade II, 4, 6 or 8 years' ofexcellent service in Grade I is required. Officers with theS.S.C. or equivalent qualifications require 4 years, those withthe J.S.C. or the 7th standard require 6 years' whilst thosewith no such qualifications require 8 years' of such service,for promotion.
For promotion from Grade II to Grade III, officers whohave reached the salary point of Rs. 445 should have a" very good 0 record of service, officers who have reachedthe salary point of Rs. 433 should have a " nearexcellent " record of service and those who have reachedthe salary point of Rs. 421 should have " an excellent" recordof service. In addition to such criteria, stenographers arerequired to pass the Government Lower Grade Stenographers'Examination (or an equivalent test held by the Bank, if theGovernment examination is not held).
sc
Don Karunaratne v. The Monetary Board of the Central Bank of
Sri Lanka and others (Kulatunga, J.)
9
For promotion from Grade III to Grade IV (Staff Assistants),officers should have –
8 years' very good service in Grade III ; or
6 years' excellent .service in Grade III ; or
4 years' very good service with a special degree insubjects of special value to the Bank, or A.I.B. (London)Parts I and II or the Final examination of the Bankers'Training Institute, Ceylon.
The above material clearly shows that –
it is not possible to generalise upon the criteria for promotionin the Bank which is what the petitioner attempts to dowhen he states in his affidavit that under the scheme ' X ' " thepromotions were automatic provided the person had served thenecessary period and that his service record was good Thecriteria are various and include different levels of performance orappropriate academic qualifications ;
there is no evidence of the procedure adopted by the Bankfor assessing merit and clasifying an officer's service as beinggood, very good, near excellent or excellent. The petitioner makesno complaint against this, which indicates that the Bank hashitherto been making a fair assessment of merit for purposes ofpromotion on the basis of personal records ;
in addition to the usual criteria, for promotion, officers arerequired in appropriate situations to pass tests or recognisedexaminations;
a graduate with a special degree in subjects of special valueto the Bank becomes eligible for promotion from non-staff classGrade III to Grade IV sooner than the petitioner who has oniya pass in the G.C.E. (O' Level) examination.
In this background I shall consider the petitioner's complaint thatthe proposed written test is unreasonable in that it is likely to placethe petitioner and other officers in his position at a disadvantagevis-a-vis graduate officers who are eligible for promotion ‘under theexisting scheme along with the petitioner and other officers on thebasis of a prescribed period of service and a good record of workand conduct.
10
Sri Lanka Law Reports
(1993) 2 Sri LR.
The proposed test can be declared void on the ground ofdiscrimination only if it is unreasonable between these two categoriesof officers presently serving in non-staff class Grade III. The followingmatters are relevant to a determination of this question
It has to be assumed that all these officers have risen toGrade III on the basis of existing criteria including the requisitelevel of competence. If so, they are equal (merit-wise) and thepetitioner is, therefore, not inferior to a graduate in that regard.
In principle, a written test is a fair procedure for assessingmerit, which is required for the performance of the functions inGrade IV. The 2nd respondent states that such an examinationis necessary for promotion to that grade which is a middle levelsupervisory grade. The proposed test itself carries only 50% ofthe total marks necessary for promotion.
The written examination was approved in 1990 and consistsof three subjects namely General Aptitude, Sri Lanka's Economyand Language. By a circular letter dated 20.08.91 (P5a) the 2ndrespondent gave notice of the holding of the said examination inthe early part of November 1991. P5a adds that the syllabus ofthe examination and specimen question papers in General Aptitudeand Sri Lanka's Economy are available in the EstablishmentsDepartment and requests all officers who are interested in obtain-ing them to collect them from that Department. There is noevidence that the petitioner or his Trade Union cared to collectthe available documents. Instead, the petitioner in his capacity asthe General Secretary of the Union addressed the letter dated
(P6a) to the Governor of the Bank and protested againstthe written examination and further demanded the right to pro-motion without such examination.
By his circular dated 24.09.91 (P5b) the 2nd respondentinformed all officers that the proposed examination will be heldin November 1991 and called for applications from the eligibleofficers. By their letter dated 01.10.91 (P6b) addressed to theGovernor, a number of officers in non-staff class Grade III againprotested against the said examination and repeated their demandthat they be promoted to non-staff class Grade IV without beingsubjected to such examination.
sc
Don Karunaratne v. The Monetary Board of the Central Bank of
Sri Lanka and others (Kulatunga, J.)
11
On 07.10.91 the petitioner filed this application. In granting leaveto proceed on 26.11.91, this Court directed the 1st and the 2ndrespondents to desist from giving effect to the revised schemeof promotion (P5). The petitioner has failed to produce before thisCourt the syllabus of the impugned examination or the specimenquestion papers referred to above to enable this Court to considerhis complaint that he cannot compete with graduates if he wereto sit for the said examination. The petitioner had every opportunityto produce these documents ; and he has tendered no explanationfor his failure to do so. As such the petitioner has failed toestablish the charge of discrimination.
For the foregoing reasons, I hold that the petitioner has failed toestablish that his rights under Article 12 (1) of the Constitution havebeen infringed. Accordingly, I dismiss this application with costs,payable to the 1st respondent.
BANDARANAYAKE, J. – I agree.
WADUGODAPITIYA, J. – I agree.
Application dismissed.
