025-SLLR-SLLR-2007-V-2-DON-SHELTON-HETTIARACHCHI-v.-SRI-LANKA-PORTS-AUTORITY-AND-OTHERS.pdf
SC Don Shelton Hettiarachchi v Sri Lanka Ports Authority and others307
DON SHELTON HETTIARACHCHIvSRI LANKA PORTS AUTHORITY AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
SOMAWANSA, J.
BALAPATABENDI, J.
SC FR APPLICATION NO/ 89/2003FEBRUARY 21, 2007
Fundamental Rights – Article 12 of the Constitution – Necessary parties – Noninclusion – Fatal? – Pursuing any exercise in futility – Equality – Discrimination.
The petitioner, a civil engineer, was the Chief Engineer (Planning and Development)of the Sri Lanka Ports Authority (the 1 st respondent). The 1st respondent appointedthe 5th respondent as the Director (Technical) and the 4th respondent as SpecialAdvisor (Technical, Planning and Development). The petitioner contended that theDirector (Technical) was the highest post in the engineering hierarchy to be held bya civil engineer, and the appointment of the 5th respondent who was an electricalengineer as Director (Technical) and the appointment of the 4th respondent asSpecial Advisor were therefore an infringement of Article 12.
Held:
There was no evidence to substantiate his claim that the highest post in theengineering hierarchy of the port was always held by a civil engineer.Equality requires that all should be treated equally without anydiscrimination. There cannot be any special privileges in favour of anyindividual and that persons who are similarly placed under similarcircumstances should be treated equally.
As the petitioner and the 5th respondent had retired from services after thefiling of the application pursuing any exercise in futility could only serve asan academic purpose.
The non-inclusion of all the parties who would be affected by an order madein the application was fatal to the validity of the application.
Cases referred to:S.S. Royappa v State of Tamil Nadu AIR 1974 SC 555.
Velupiilai v The Chairman, Urban District Council Secretary 39 NLR 464.
Farookv Siriwardene, Election Officer and others (1997) 2 Sri LR 145.
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Dr. Sunil Cooray with M. Premachandra for petitioner.
ShiblyAziz PC with Senany Dayaratne for 1st, 2nd, 3rd and 5th respondents.
Cur. adv.vutt.
December 12, 2007
DR. SHIRANI BANDARANAYAKE, J.
The petitioner, a Chartered Civil Engineer by profession and amember of the Institute of Civil Engineers, was serving as a Head of aDivision under the designation, Chief Engineer (Planning andDevelopment) with effect from 02.10.2001 subject to a probationaryperiod of one year of the 1 st respondent Authority. The petitioner allegedthat his fundamental right guaranteed in terms of Article 12(1) of theConstitution was violated by the 1st and 2nd respondents by theappointment of the 4th respondent as a Special Advisor (Technical,Planning and Development) and by the appointment of 5th respondentto the post of Director (Technical).
This Court granted leave to proceed for the alleged infringement ofArticle 12(1) of the Constitution.
The facts of this case, as stated by the petitioner, albeit brief, are as
follows:
The petitioner was appointed as an Engineer by letter dated02.02.1968 (P2) at the Colombo Port Commission and subsequently byletter dated 22.08.1970 (P3), he was appointed as a Civil Engineer atthe Colombo Port Commission. Since 1968, the petitioner had beenserving in the Port Infrastructure Management for over a period of 35years.
According to the petitioner, the chief tasks of the 1st respondentAuthority belong to the discipline of Civil Engineering and it had beenthe practice since 1912 that the position giving the leadership to all portcivil engineers was held by a Port Civil Engineer. Presently the highestsuch designation is the post of Director (Technical). The 5th respondent,according to the petitioner, is not a Civil Engineer, but a qualifiedChartered Electrical Engineer and therefore he does not hold therequisite qualifications in terms of section 58(iii) of the Manual ofAdministrative Procedure of the Sri Lanka Ports Authority (P11) to beappointed as the Director (Technical). The 4th respondent is not anemployee of the 1 st respondent Authority and is an employee of Port
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Management Consultancy Services Limited, which is a subsidiaryCompany of the 1st respondent Authority headed by the 2ndrespondent The 4th respondent, who is over 60 years of age wasappointed as Special Advisor, as the 5th respondent is not a CivilEngineer and the 5th respondent is carrying out the duties, which thepetitioner is entitled to carry out and also there is no recognized post inthe Ports Authority known as 'Special Advisor*.
Accordingly, the petitioner's grievance is that the appointments givento 4th and 5th respondents should be cancelled and the petitionershould be appointed to the post of Director (Technical) in the 1strespondent Authority on the basis that the said post has been reservedfor Civil Engineers.
The contention of the learned Counsel for the petitioner was that theposition of Director (Technical) should be held by a Port Civil Engineeras has been the practice since 1912. In support of this contentionlearned Counsel for the petitioner referred to the previous positions heldin respect of the highest position in the Civil Engineers' cadre, which isillustrated in the following chart:
Period Designation Organization/
Department Profession Relevant
Statute
1912-1950 Harbour
Engineer Harbour
Engineer's
Department/PWD Chartered
Civil
Engineer Thoroughfare
Ordinance
1951 -1967 Harbour
Engineer/Chief
Engineer
(Ports) Colombo PortCommission Chartered CivilEngineer Port of ColomboAdministrationAct of 1951
1968-1978 Port
Commissioner Colombo PortCommission Chartered CivilEngineer Port of ColomboAdministrationAct Of 1951
1979 – 2001 Managing
Director Sri Lanka PortsAuthority Chartered CivilEngineer Sri Lanka PortsAuthority Act,No. 51 of 1979
2002 – 2003 Director
(Technical) Sri Lanka PortsAuthority Chartered CivilEngineer Sri Lanka PortsAuthority Act,No. 51 off 1979
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Learned Counsel for the petitioner further submitted that thePort Engineers are divided into two categories, which include thePort Infrastructure Management and Port SuperstructureManagement According to his submission Port Civil Engineers areall involved in the Port Infrastructure Management whereas theelectrical, mechanical and marine engineers belong to the PortSuperstructure Management. The contention therefore was thatsince the highest position of the post of Port Civil Engineers' ispresently identified a Director (Technical), such position should beheld only by a Civil Engineer.
Learned President's Counsel for the 1st, 2nd, 3rd and 5threspondents (hereinafter referred to as the learned President'sCounsel for the respondents) strenuously contended that the postof Director (Technical) is not limited to the discipline of CivilEngineers, but open to all the other disciplines such as mechanical,electrical, electronics and marine engineering for the reason that itwould be patently unfair and discriminatory to reserve the said postfor members of one branch of port engineering.
The petitioner, as stated earlier is challenging the appointmentsmade to the 4th and 5th respondents and specifically theappointment made to the 5th respondent. The 5th respondent wasadmittedly appointed as the Director (Technical) of the 1strespondent Authority.
The nature and scope of the work of the said position wasdescribed in detail in the affidavit of the 1st to 3rd and 5threspondents, where it was averred that the said post is largely anadministrative position, which is concerned with co-ordinating andoverseeing activities of all the disciplines of port engineering. Sucha position should be open to members of various disciplines of portengineering since the specialisation in engineering has not been adeciding factor when appointments were made to this post.
Learned President's Counsel for the respondents submitted thatthe 5th respondent was appointed to the post of Director(Technical) in terms of section 58(iii) of the manual of AdministrativeProcedure of the 1st respondent Authority. Section 58 of the saidmanual, deals with the covering up duties and section 58(iii) readsas follows:
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"58. The general terms and conditions relating to appointmentsto cover up duties of other posts are indicated below:
(iii) where the covering up period is expected to be overone month, the most senior employee in the gradeimmediately below should be appointed to cover up dutiesprovided he is considered suitable
Learned President's Counsel for the respondents contendedthat on the basis of section 58(iii) of the manuah of AdministrativeProcedure of the 1st respondent Authority, the 5th respondent, whowas the senior most employee in the Head of Director grade, whichwas the grade immediately below that of the Director, who had overnine (9) years of experience in that grade as opposed to thepetitioner, who had only one (1) year and nine (9) monthsexperience in that grade was appointed to cover-up on duties ofDirector (Technical). It was further submitted that the 5threspondent was also deemed to be suitable for the said position onthe basis of inter alia seniority, ability, managerial capabilities andcontribution towards the achievement of organizational targets andgoals.
Subsequently to the said appointment, the Board of Directors ofthe 1st respondent Authority had obtained approval from theMinistry of Port Development and Shipping to confirm the 5threspondent in the post of Director (Technical) (1R2).
It is to be borne in mind that the post of Chief Engineer (Ports)as the post of Director (Technical) was then known, was held from1984 to 1989 by one R.B. Wickramage, who was a MechanicalEngineer by profession (1R1).
Thus it is evident that the position in question has not beenconfined to Civil Engineers and I am therefore in agreement withthe submissions made by the learned President's Counsel for therespondents that the post of Director (Technical), being anadministrative position, should not be restricted to one area ofspecialization, so that the most suitable officer could be selected onthe basis of his seniority, ability, managerial capabilities and hiscontribution towards the achievement of targets and goals of the1st respondent Authority.
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In the circumstances it is apparent that the contention of thelearned Counsel for the petitioner that the post of Director(Technical) is limited only for civil engineers cannot be accepted.
The petitioner had also complained of the appointment of the 4threspondent stating that the said appointment was made as the 5threspondent, who was not a Civil Engineer was unable to effectivelyand efficiently carry out the duties as the Director (Technical).
Learned President's Counsel for the respondent contended thatthe 4th respondent was appointed as a Special Advisor for thepurpose of utilizing his expertise and experience for specialprojects such as donor-funded projects. Further it was submittedthat as the 1st respondent was engaged in effecting an expansionof the ports system of the country, it had required the advice andCounsel of port engineers of the 4th respondent's level ofexperience and expertise to better strategize the utilization offoreign funding in an expedient and efficient manner.
On a consideration of the submissions of the learnedPresident's Counsel for the respondents, it is apparent that thepurpose of employing the 4th respondent was for the purpose ofstrategical utilization of foreign funds on special projects.
Considering the types of duties that had been allocated to the4th respondent, it appears that his services had been obtained forthe sole purpose of functioning as a Special Advisor on donor -funded projects and not for the purpose of assisting the 5threspondent, who was functioning in the capacity of Director(Technical).
The petitioner's complaint was that his fundamental rightguaranteed in terms of Article 12(1) was violated due to theappointments of the 4th and 5th respondents.
Article 12(1) of the Constitution, which deals with the right toequality reads as follows:
"A// persons are equal before the law and are entitled tothe equal protection of the law."
Equality requires that all should be treated equally without anydiscrimination and as Sir Ivor Jennings (The Law of the
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Constitution, P 49) had described, among equals the law should beequal and should be equally administered, it illustrates the conceptthat there cannot be any special privileges in favour of anyindividual and that persons, who are similarly placed under similarcircumstances should be treated equally.
However, this does not mean that all laws should apply equallyto all persons. What it postulates is that classification is permittedprovided it is found on intelligible differentia and should bereasonable. There cannot be any arbitrariness in suchclassifications. Equality as pointed out by Bhagawati, J., (as hethen was) in S.S. Royappa v State of Tamil Afadt/1) is antithetic toarbitrariness and equality and arbitrariness are sworn enemies.Nevertheless there cannot be any discrimination between twopersons, who are similarly circumstanced, which emphasizes theconcept that equals cannot be treated unequally and unequalscannot be treated equally.
This concept equally applies to employment opportunities aswell. Accordingly in regard to appointments and promotions equalsshould not be placed unequally and unequals also should not betreated equally.
The question therefore at this point would be whether thepetitioner and the 4th and 5th respondents were equals who shouldhave been treated equally.
Admittedly, the 4th respondent was appointed to the post ofSpecial Advisor and the 5th respondent was appointed as theDirector (Technical) of the 1 st respondent Authority. The petitionerhas neither submitted any supporting evidence to indicate that hewas suitable and qualified to have been considered for either ofthese positions nor has he substantiated the position as to why the4th and 5th respondents were not suitable to have been appointedto their respective posts. Although he has alleged that the 5threspondent should not have been appointed as he is not a CivilEngineer, there is no material that has been submitted by thepetitioner to substantiate this position. Moreover, the petitioner hadsubmitted that the purpose of appointing the 4th respondent as aSpecial Advisor was due to the fact that the 5th respondent was nota Civil Engineer, but only a qualified Electrical Engineer. This
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submission is again without any supporting evidence. Would it bepossible for a petitioner to make submissions without anysupporting and substantiating material? My answer to that questionis clearly in the negative. If a petitioner is leveling allegationsagainst another party; it is necessary that supporting evidence,should be submitted to this Court. To uphold one's fundamentalrights, it is necessary that a petitioner places sufficient material toshow that such rights have been infringed by executive oradministrative action. In this matter as referred to earlier, thepetitioner has not submitted any material in support of hisgrievance.
Further, it is to be noted that the petitioner relied on section58(iii) of the Manual of Administrative Procedure of the 1strespondent Authority, where it was stated that the senior mostemployees in the grade immediately below would be considered tocover-up duties. The respondents had also relied on that provisionand had appointed the 5th respondent as by that time the 5threspondent had over 9 years of experience in that grade asopposed to the petitioner’s one year and 9 months. Theappointment given to the 4th respondent was admittedly to aspecial position for the purpose of using his expertise andexperience for special projects. In such circumstances it cannot besaid that the petitioner and the 4th and 5th respondents weresimilarly circumstanced to be treated as equals for the purpose ofconsidering the alleged infringement of petitioner's fundamentalright guaranteed in terms of Article 12(1) of the Constitution.
There are two other matters I wish to refer to before I part withthis judgment.
Learned President's Counsel for the respondents brought to ournotice at the time of the hearing, which was admitted by thepetitioner, that both the petitioner and the 5th respondent hadretired-from the 1st respondent Authority during the pendency ofthis application and there it was futile for the petitioner to proceedwith this application.
Pursuing an exercise in futility, could only serve an academicpurpose and as quite correctly pronounced by Abrahams, C.J. thisis a Court of Justice and not an Academy of Law. (Veiupillai vThe Chairman, Urban District Council Secretary)^).
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Secondly learned President's Counsel for the respondentssubmitted that the necessary parties to this application have notbeen brought before Court, as the petitioner had contended thatonly Civil Engineers are entitled to be appointed to the post ofDirector (Technical) of the 1st respondent Authority.
As submitted by the learned President's Counsel for therespondents, the persons most likely to be affected by such anorder were the port engineers of the 1st respondent Authorityattached to different branches and who were npt civil engineers.Since they were not made parties they were unable to resist sucha contention, if not en masse, at least by representation.
Learned President's Counsel for the respondents also submittedthat the present incumbent of the post of Director (Technical) is alsoa non Civil Engineer and if a decision was to be taken by this Courtthat the post of Director (Technical) should only be held by a CivilEngineer, he would have had to vacate his position.
The need for having necessary parties before Court wasconsidered by this Court in Farook v Siriwardena, Election Officerand others^), where it was clearly stated that the failure to make aparty to an application of person/s, whose rights could be affectedin the proceedings, is fatal to the validity of the application.
It was therefore an essential requirement that the parties, whowere necessary to this application, should have been broughtbefore this Court and the petitioner had not adhered to thisrequirement.
Considering all the circumstances of this application and for thereasons aforesaid I hold that the petitioner has not been successfulin establishing that his fundamental right guaranteed in terms ofArticle 12(1) of the Constitution had been violated. This applicationis accordingly dismissed.
I make no order as to costs.
SOMAWANSA, J.I agree.
BALAPATABENDI, J. -I agree.
Application dismissed.