007-SLLR-SLLR-1997-V3-DONA-DIANA-PEARLY-v.-PREMARATNE-ACTING-SECRETARY-EDUCATIONAL-SERVICE-BOARD.pdf
CA
Jayatissa Herath v. Dayaralne (Edussuriya, J.)
77
DONA DIANA PEARLY
V.
PREMARATNE, ACTING SECRETARY EDUCATIONAL SERVICEBOARD AND ANOTHER
SUPREME COURT.
FERNANDO, J.,
WIJETUNGA, J. ANDANANDACOOMARASWAMY, J.
S.C. APPLICATION NO. 790/96.
JUNE 16, 1997.
Fundamental Rights – Appointment of Teachers – Course of training (orappointment – Failure to appoint on successful completion of training – Article12(1) of the Constitution.
The petitioner who was an applicant tor a post of Assistant English Teacher wasrequired to follow the District English Language Improvement Centre ("DELIC")course as a pre-condition for appointment. The eligibility Jo follow the course wasdecided on the basis of marks obtained at a competitive examination, andconfirmed by the Commissioner-General of Examinations. After eight months fromthe commencement of the course, the petitioner was informed that there hadbeen a mistake as regards her marks at the competitive examination. But she wasallowed to complete the course. She followed the course successfully andpassed the final examination. Over one year thereafter, she learnt that some of hercolleagues had received teaching appointments.
Held:
1 To make a mistake and to correct it by itself involved no breach of equality orequal protection. But the time taken to correct the error and to inform thepetitioner what effect it had on her eligibility for a teaching appointment were,unreasonably long. The appointing authority thereby acted unfairly and displayed
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a lack of concern lor the rights and interests of candidates constituting, in thecircumstances, a denial of the equal protection of the law.
2. The application was not time barred as the petitioner complained to courtpromptly upon becoming aware that others had received appointments inviolation of her rights.
APPLICATION for relief for infringement of fundamental rights
Chula Bandara for the petitioner.
S. Fernando. S.C. for the respondents.
Cur. adv. vult.
July 30, 1997.
FERNANDO, J.
The petitioner claims that her fundamental right under Article 12(1)has been infringed by the failure to appoint her as an AssistantEnglish Teacher.
The Education Services Committee of the Public ServiceCommission, by a gazette notification, announced that a competitivewritten examination for the selection of Assistant English Teacherswould be conducted by the Commissioner-General of Examinations.Sixty percent of the vacancies were to be filled according to merit, asdetermined by the marks scored at that examination, as follows:
Those who scored more than a certain number of marks wouldreceive direct appointments, and
The remaining vacancies (i.e. to make up the sixty percent)would be filled from among the candidates next in order ofmerit, but not directly – they would be considered for selectionto follow the District English Language Improvement Centre(“DELIC") course, and appointed upon successful completionof that training course.
It was quite clear that the total number of appointments on that basiswould not exceed sixty percent of the vacancies. How the remainingvacancies were to be filled is of no relevance to this application –
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Dona Diana Pearly v. Premaratne, Acting Secretary Educational
Service Board and Another (Fernando, J.)
79
except that merit as determined by the marks scored at thecompetitive examination was one criterion.
Having sat for the examination in June 1994, the petitionerreceived from the Commissioner-General of Examinations acomputerized results sheet showing her total marks as“053 OUT OF100 (ZERO-FIVE-THREE)". There is no dispute that for directappointment the minimum required was more than that, and thepetitioner was certainly not eligible. However, on the basis that shehad scored 53 marks, she was 126th in order of merit, and wasthereby eligible for selection for the DELIC course (and appointment)under category (2). She received from the DELIC authorities a letterdated 23.1.95 informing her of her selection for the 1995 DELICcourse commencing 7.2.95. That letter also stated:
"You are admitted to this course in terms of General Eligibilityrequirements specified in the [Gazette] and your eligibility will bechecked by the Education Services Board [Committee?] of thePublic Service Commission. If you are found ineligible you will bediscontinued at any stage of the course …
On successful completion of the course you will be appointedas an English teacher to a school in the district you have appliedfor."
It is not disputed that she was interviewed by the EducationServices Committee. It is not clear when that was, but the petitionersays it was before she was admitted to the course.
Shortly before the end of the DELIC course, the petitioner receiveda-letter dated 5.11.95 from the Commissioner-General ofExaminations stating that at the competitive examination she hadreceived 53 marks out of 200, and that her place in order of merithad changed, but not how it had changed. According to the 1strespondent's affidavit, the Commissioner-General had informed himthat it had changed from 126 to 2403; there is no evidence that shewas so informed. She was nevertheless allowed to complete the
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course, and to sit for the final examination held in December 1995.By letter dated 21.5.96 she was simply told that she had passed. InNovember 1996, she came to know that some of her colleagues hadreceived teaching appointments, and she filed this application on26.11.96 complaining that she had not been given one.
While not disputing that an error in respect of the petitioner's markshad been corrected in good faith, learned Counsel for the petitionersubmitted that on the basis of the marks originally disclosed, thepetitioner had been eligible for admission, and had been dulyadmitted, to the DELIC course; and that having completed thatcourse successfully, she was entitled to a teaching appointment.Alternatively, he contended that in terms of the scheme ofrecruitment, once admitted (rightly or wrongly) to the DELIC course,successful completion of that course was the sole criterion for ateaching appointment. The petitioner was therefore entitled to anappointment, and the refusal of an appointment was in violation ofArticle 12(1).
I have already summarized the relevant terms of the scheme ofrecruitment. An appointment under category (2) required, in my view,that two conditions be fulfilled: not only the successful completion ofthe DELIC course, but also merit, as demonstrated by the marksscored at the competitive examination. While merit was relevant forselection for the course, it did not cease to be relevant forappointment. But even if, contrary to my view, merit was relevant onlyfor selection for the DELIC course, in this case it was discovered -before the petitioner was given an appointment – that she wasactually not qualified for that course. To accept the petitioner’scontention that she should nevertheless be given a post would be tosanction the appointment of a disqualified person, and wouldimmediately give rise to a legitimate grievance among all othercandidates, who had scored more marks than she did, that some oneless qualified than them had not only been unfairly preferredfor selection for the course, but had even been given anappointment.
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While I accept that the bona fide correction of an error in thepetitioner’s marks, and the consequent refusal of an appointment toher, did not deny her equal treatment, nevertheless that does not endthe matter. Considerable (and avoidable) prejudice has been causedto her. Apart from the expenses necessarily involved in following thecourse, it now turns out that almost an year of her life has beenunprofitably spent, from the point of view of her future career andemployment (followed by another year of anxious anticipation).Passing the DELIC examination is not likely to be accepted as arecognized qualification for a teaching appointment, in view of theterms of the scheme of recruitment. The question arose whether inthe process of correcting that error there had been a denial to thepetitioner of the equal protection of the law, and we asked StateCounsel to address us on that matter.
Learned State Counsel referred to the Education ServicesCommittee interview, at which (according to its Acting Secretary, the1st Respondent) “it was found that some of the candidates were veryweak in English compared to the marks they had obtained"; arescrutiny was called for. It was then that the marks of the Petitionerand 33 others were found to have been erroneously reported asbeing out of 100. To make a mistake, and to correct it, by itselfinvolves no breach of equality or equal protection. But the time takenseemed unreasonably long. A hypothetical example was put to StateCounsel: if a law student who had successfully completed all hisexaminations gave six weeks notice of enrolment, at which point theDepartment of Examinations discovered, for the first time, that he hadnot obtained the requisite Advanced Level passes, and this Courthad therefore to refuse to admit and enroll him as an Attorney-at-Law,had not that delay denied him the protection of the law?Administrative processes – such as recruitment and publicexaminations – must be carried out with due regard to the rights andinterests of the public, and although errors can be corrected, theprocess of correcting errors must not cause undue harm, loss, orprejudice. While acknowledging the hardship caused, learned StateCounsel replied that the petitioner's remedy was elsewhere – possibly
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in delict, based on an alleged breach of the duty of care owed to her,against whoever owed her that duty, or the State.
Quite apart from delictual rights and duties, the wide powersvested in those responsible for recruitment have to be exercised inthe public interest and for the public benefit. It is true that only thequalified must be appointed, and the unqualified kept out; but theunqualified must not be allowed, needlessly, to entertain the beliefthat they are qualified. While the executive should not be penalisedfor mistakes, yet mistakes must be promptly corrected. Hereaccording to the 1st respondent, at an early stage – at the interview -it was suspected that the marks were incorrect. That was all the morereason why prompt action should have been taken to rectify theposition. Not merely should the 34 who were unqualified have beenimmediately discontinued, but it was no less important, in the publicinterest, that the next 34 in order of merit should have been admittedto the course – and that did not happen because of the failure to actpromptly. The power of appointment entrusted to the appointingauthority had not only to be exercised correctly and fairly, but – whenit came to the correction of an error – expeditiously as well. And itwas not enough to correct the error, the petitioner should also havebeen told what effect it had on her eligibility for a teachingappointment. That was an expectation, an interest, a safeguard, anda protection, which the petitioner had. While a delay of a few weekswas permissible, I cannot assume that a delay of over eight monthsin correcting the error, and the failure for over a year to say how itaffected her, were necessary, normal or usual; that displayed a lackof concern for the rights and interests of candidates constituting, inthe circumstances, a denial of the equal protection of the law.
It was submitted on behalf of the respondents that the lapse, if any,was on the part of the Commissioner-General of Examinations, whowas not a party, and that the petitioner was therefore not entitled torelief. However, it was the Education Services Committee which wasresponsible, from beginning to end, for the entire selection process,and of that the competitive examination was just one part. In anyevent, whether it was the responsibility of that Committee or the
Dona Diana Pearly v. Premaratne, Acting Secretary Educational
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Commissioner-General, both were acting as agencies of the State,and it is against the State that the petitioner now seeks relief.
In written submissions filed with permission after the oral hearinglearned State Counsel submitted that in her petition dated 26.11.96the petitioner made no complaint that the delay in correcting the errorconstituted a violation of her fundamental right under Article 12(1);that this position was taken up for the first time at the hearing;and that in any event it was out of time because the petitionwas filed more than one year after the error was corrected on5.11.95.
The petitioner had set out the relevant facts and submitted that shewas entitled to a teaching appointment, and that the denial thereofwas in violation of Article 12(1). Her claim to a teaching appointmentwas based upon an interpretation of the Gazette, which I have held tobe erroneous. While that claim failed, nevertheless the same facts onwhich she relied showed that she had been denied equal protectionin the process of correcting the error. That, in my view, is a claimwhich is an alternative to that claimed in the petition; or a claim whichwas included in the original claim. The mere overstatement of a caseor a claim should not ordinarily debar a Court from granting relief onthe basis of what the facts actually establish. A petitioner whounsuccessfully alleges torture in violation of Article 11, shouldnevertheless be granted relief if the facts show degrading treatment,even though not specifically pleaded. While pleadings infundamental rights applications must undoubtedly be clear andadequate, the constitutional time limit serves as a caution againstundue technicality and formality.
As for the time bar, when the error was corrected on 5,11.95, thepetitioner had not been told what precise change had taken place inher merit ranking; and no action was taken to discontinue her fromthe DELIC course (in terms of letter dated 7.2.95) or to debar herfrom the final examination. Months later she was told she had passedthat examination: her results were not withheld, nor was she told shewas ineligible for a teaching appointment. Even by November 1996
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the Education Services Committee had not informed her that she wasnot eligible for a teaching appointment. It was only when she becameaware in November 1996 that others had received appointments thatshe knew that her rights had been infringed. That objection fails.
I hold that the petitioner’s fundamental right to the equal protectionof the law has been infringed, and direct the State to pay her a sumof Rs, 25,000/- as compensation (for the breach of that right, and noton account of delictual damages) and costs.
WIJETUNGA, J. -1 agreeANANDACOOMARASWAMY, J. -1 agree.Relief Granted.