042-SLLR-SLLR-2005-V-2-DR.-GAJAWEERA-vs-AIR-MARSHAL-G.-D.-PERERA-AND-OTHERS.pdf
CA
Dr. Gajaweera vs. Air MashallG.D. Perera and Others (Eric Basnayake, J.)
223
DR. GAJAWEERAVSAIR MASHALL G.D. PERERA AND OTHERSCOURT OF APPEAL,
SRIPAVAN, J.
BASNAYAKE, J.,
CA 1416/2004,
JUNE 3, 2005
Writ of Certiorari – Mandamus-Promotion not recommended-Sri Lanka AirForce-Consideration of a requirement non-existent at the time of enlisting-validity ? – Reasonableness ? – Legitimate expectation – Are decisions affect-ing such legitimate expectation subject to judicial review ?
The petitioner who is a Medical Doctor from a foreign Medical Institute, wasprovisionally registered as a Medical Practitioner in 1993. She joined the SriLanka Air Force as a Medical Officer-in the rank of Flight Lieutenant. The mini-mum qualifications required were MBBS or equivalent and provisional or fullregistration with the Sri Lanka Medical Council.
She became entitled to be promoted to the rank of Squadron Leader after 5years and the only examination required to be passed was the Officers
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Promotion Examination B, which she passed. However, she was told to passthe Act 16 Examination to be promoted.
The petitioner contends that to consider a requirement non-existent at the timeof enlisting is unreasonable and arbitrary.
HELD
Up to 1997 overseas Medical Graduates obtained their provisionalregistration before completing Act 16 Examination. From 1997 Act,16 Examination was made compulsory for the provisional regis-tration.
The petitioner passed out as a Medical Doctor in 1992, and wasprovisionally registered in 1993 and had also successfully com-pleted her internship and had further received her post intern ap-pointment, before joining the Sri Lanka Air Force.
The petitioner had a legitimate expectation of being promoted with-out having to pass Act 16 examination as the only examination thatis required for promotion is the officers examination B, which thepetitioner has successfully completed.
The advertisement called for applications from either or both theprovisionally/fully registered doctors, nowhere in the advertisementdid it mention of any requirement of having to pass the Act 16examination.
Prior to 1997 Doctors without Act 16 were taken to the Departmentof Health and were entitled to their grade promotions and salaryincrements as per the Medical Officers with full registration.
Per Eric Basnayake, J
“ In the field of Public Law individuals may not have strictly enforceable rightsbut they may have legitimate expectations, such expectations may stem eitherfrom a promise or representation made by a public body. Decisions affectingsuch legitimate expectations are subject to judicial review.
APPLICATION for a writ of certiorari/ Mandamus
CA Dr. Gajaweera vs Air Mashall G.D. Perera and Others (Eric BasnayakeJ) 225
Cases referred to :
Dr. Ishanthe Gunatilake vs. Vice Air Marshall H. C. A. C. Tissera,Commander of the Navy arid others – SCM 09.12.03, S. C. Application 76/01-CA 366/99
Werasinghe Vs. Gamage – SC 682/2001-SCM 19.09.02
J. C. Weliamuna with Shantha Jayawardena for petitioner.
Yuresha de Silva, State Counsel for respondents.
Cur. adv. vult
ERIC BASNAYAKE, J
The petitioner filed this application seeking a writ of certiorari to quashthe decision of 1 st to 3rd respondents not recommending the petitioner forpromotion and a writ of mandamus compelling the respondents torecommend and promote the petitioner to the rank of Squadron Leaderfrom 06.09.1999.
The petitioner passed out as a Medical Doctor from Zaporoazhye MedicalInstitute of the Soviet Union in 1992. On 24.08.1992 (P1) the Sri LankaMedical Council had accepted the petitioner’s foreign degree. On26.03.1993 she was placed in the merit order list of medical graduates forthe post of Intern Medical Officers for the year 1993. She had been placedat 394 out of 423 officers. On 31.03.1993 the petitioner was provisionallyregistered as a Medical Practitioner at the Sri Lanka Medical Councilunder section 31 of the Medical Ordinance (P3, P3a). The petitioner havingcompleted her internship received her post intern appointment at the GeneralHospital, Galle.
The petitioner had applied for the post of Medical Officer in the SriLanka Air Force in response to an advertisement appearing in The SundayObserver on 24.04.1994 (P7).
The advertisement invited applications for Commissioned officers in theMedical and Dental Branches in the Regular and Volunteer Air Force. Theminimum qualifications required were MBBS or BDS/LDS or Equivalent
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and provisional or fullregistration with the Sri Lanka Medical Council.Those following internship too were eligible to apply and the selectedcandidates would be commissioned in the rank of Flight Lieutenantor Squadron Leader in keeping with their qualifications and experience.The advertisement said “'Excellent prospects for further promotionsexist for those seeking to make a career in the Air Force” (emphasisadded).
The petitioner was called for an interview on 02.08.1994 which sheattended and was selected on the 2nd itself as a student officer of theRegular Force. She was commissioned as a Flight Lieutenant aftersuccessful completion of her training.
The petitioner states that a Medical Officer who serves in the Air Forcefor a continuous period of not less than 5 years shall on the recommendationof the Commander and with the approval of Her Excellency the Presidentof Sri Lanka, be promoted to the rank of Squadron Leader provided he haspassed such examinations. In terms of the Air Force Order 375 (Pi 2) theonly examination the petitioner is required to pass is the Officers PromotionExamination B which would qualify her for the promotion to the rank ofSquadron Leader. The petitioner passed Examination B on 16.11.1998(P13). The respondents marked 2R3 the Regulations 1961 made by theMinister of Defence and External Affairs under section 155 of the Air ForceAct, 41 of 1949.
Nos. 5, 6 and 8 of those Regulations are as follows
“Every medical or dental officer of the Air Force shall onappointment be commissioned in the rank of FlightLieutenant.
(1) A medical or dental officer who has served in theAir Force for a period of eight years shall, on therecommendation of the Commander of the Air Forceand with the approval of the Governor-General, bepromoted to the rank of Squadron Leader, providedthat he has passed such examination as may bedetermined in that behalf by the Commander of theAir Force.
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CA Dr. Gajaweera vs Air Mashall G.D. Perera and Others (Eric Basnayake.J) 227
8. Notwithstanding the provisions of regulations 6 and 7 ofthese regulations the Commander of the Air Force may, insuch circumstances as he may deem exceptional, determinethe rank of a medical or dental officer. Every suchdetermination shall be made with the concurrence of thePermanent Secretary, Ministry of Defence and ExternalAffairs and with the approval of the Governor-General”.
The petitioner states that although eligible, she was not promoted andstates that she made constant inquiries from the 2nd respondent withregard to her promotion without any result. The petitioner was summonedfor an interview by the 2nd respondent and at the interview held on
the petitioner was informed that she has to pass Act 16examination to be promoted. However the petitioner was not officiallyinformed of the reason not to promote her in spite of her agitation (P17).
The petitioner states that she became aware of a letter sent by theDirector General of Health Services to the 2nd.respondent on 19.12.2003.This letter admittedly was in response to a query made by the 2ndrespondent on 12.11.2003. The 2nd respondent had apparently soughtadvice from the Director General of Health in terms of Regulation 10 of theregulations of 1961 which states thus,
“the rates of pay and allowances of medical and dental officersof the Air Force shall be revised to_ equate them to thoserecommended and accepted at any future date for medical anddental officers in the Department of Health Services”.
The letter (2R2) addressed to the Director General of Health with theheading Appointment of medical officers with foreign degrees – SriLanka Air Force states thus,
“The Sri Lanka Air Force has enlisted medical officers, who have obtainedtheir basic MBBS/MD qualification (recognized by the Sri Lanka MedicalCouncil) from abroad. However some of the SLAF medical officers have
not completed their Act 16 examinationto obtain full registration from
the Sri Lanka Medical Council. This has created dilemma in placing themon a proper salary scale.
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Hence it is kindly requested that the SLAF is advised regarding thesalary scale pertaining to the following categories.
a
b
c. Medical officer with provisional registration and has completedinternship training but not completed Act 16.
d
The Director Genera! states in reply by his letter (P 15) dated 19.12.2003as follows
1
Up to 1997 overseas medical, graduates obtained theirprovisional registration before completing Act-16 examination, oncetheir degrees were accepted by the medical council they were then selectedfor the Internship. Act 16 examination is not compulsory for this purposebut they have to complete Act 16 to obtain full.registration.
From 1997 Sri Lanka Medical Council has made Act 16 a compulsoryrequirement for the provisional registration and these medical officers cannotstart Internship without the provisional registration. Therefore Act-16examination at present is a compulsory qualification to join the Departmentof Health.
Those Medical Officers (medical officer who has completedmedical degrees before 1997) absorbed into the department withoutAct 16 examination are entitled for their grade promotion and salaryincrements as per the medical officers with full registration. Oncethey complete two years of service and pass E-bar examinationthey can be confirmed in service with the promotion to grade II(gmphasis added).
The petitioner states that she has a reasonable expectation of beingpromoted without having to pass Act 16 examination. The petitioner alsocomplains that Squadron Leader K. R. Jayalat'n, a Registered Medical
CA Or. Gajaweera vs Air Masha/I G.D. Perera and Others (Eric Basnayake,J) 229
Practitioner, was enrolled as a Pilot Officer and was promoted to the rankof Squadron Leader. The petitioner also complains that one could remainas a Flight Lieutenant only for a period of 11 years. By reckoning theperiod of stay of the petitioner, she is only left with about few more monthsin the Air Force.
The petitioner complains that to consider a requirement non existent atthe time of enlisting and to introduce a new condition for promotion isunreasonable and arbitrary.
The respondents categorically state that a medical officer having foreignqualifications is required to sit Act 16 examination in order to be fullyregistered and to be promoted.
Admittedly the petitioner has served in the Air Force until today havingbeen enlisted as a Flight Lieutenant in 1994. The petitioner is a foreigngraduate whose degree was accepted by the Medical Council of Sri Lanka.In view of that acceptance she was provisionally registered as a MedicalPractitioner. She has completed her internship. Soon after her internshipshe had seen this advertisement calling for applications to join the AirForce. The Air Force called for applicants with MBBS etc or equivalentqualifications. The first question to be considered is whether those whohad obtained degrees from foreign universities had the ‘equivalentqualifications’. Then the Air Force wanted provisionally registered ones.Who had provisional registration ? Were those who possessed degreesfrom foreign universities eligible for such registration ? The advertisementdid not specifically call for applications from “fully registered” doctors butfirst invited the provisionally registered doctors to apply. It called forapplications from either or both the provisionally/fully registered doctors.The attraction of the advertisement was for those with provisional registration.It appears that the advertisement was directed at the foreign graduates.This may be due to the dearth of doctors. This is evident by the fact ofextending the invitation to interns. Nowhere in the advertisement did itmention of any requirement of having to pass Act 16 examination.
In terms of Regulation 6 (1) a medical or dental doctor shall on therecommendation of the Commander of the Air Force and with the approvalof Her Excellency the President be promoted to the rank of Squadron
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Leader after eight years of service, provided he or she has passed suchexamination as may be determined by the Commander. The onlyexamination that is required for promotion is the Officers Examination Bwhich the petitioner had successfully completed.
The petitioner was perturbed when she found some officers junior to herhad been promoted. In the meantime the petitioner too was summoned foran interview. The petitioner was summoned as she possessed thenecessary qualifications for promotion and not to be informed that hercase cannot be considered as she has not obtained the full registration orthat she has not passed Act, 16 Examination. It appears that the authoritiesthemselves were not certain with regard to the rules that should be applied.This is what prompted the 2nd respondent to write to the Director Generalof Health, the letter marked 2R2. In response to this letter the D. G. H.sent P15 to the 2nd respondent which is self explanatory. According tothis letter Act 16 became a requirement only after the year 1997. Prior to1997, doctors without Act 16 were taken to the Department of Health andare entitled to their grade promotions and salary increments as per themedical officers with full registration.
The petitioner joined the Air Force to make it a carrier in view of the“excellent prospects for further promotion”. It does not appear thatthe petitioner ever intended to leave the job after eleven years. She hadsuccessfully completed the “Officers Examination B” with the intention ofrising in her chosen carrier. It may have been humiliating to see othersjunior to her rise above her position (due to an invalid reason). That periodis sufficient for any officer to gain the next promotion. It may be too late forher to choose another carrier now. She had served in several stations inthe Force and has a legitimate expectation of getting her promotions indue time.
She was qualified to join the Department of Health as a MedicalPractitioner without having to sit Act 16 examination. The Act 16examination became compulsory only after year 1997. Instead of joiningthe Department of Health, she chose a carrier in the Air Force. If she wasin the Department of Health, without Act 16 examination she would haveobtained her promotions provided she passed the Efficiency Barexamination. After serving in the Air Force for nine years, to be told thatshe needs to pass Act 16 examination is unreasonable.
CA Dr. Gajaweera vs Air Mashall G.D. Perera and Others (Eric Basnayake.J) 231
The respondents reluctantly admit promoting K. R. Jayalath a RegisteredMedical Practitioner who was enlisted as a Pilot officer in 1987 to the rankof Squadron Leader on 18.11.2001. The respondents state that K. R.Jayalath was promoted after having served as Flight Lieutenant forapproximately 10 years. Why does not the petitioner then, having joinedthe service as Flight Lieutenant and served more than 10 years in thatcapacity, deserve a promotion ?
In Dr. Ishanthe Gunatilake vs. Vice Admiral H. C. A. C. Tissera,Commander of the Navy and otherd^ Fernando J said “all medical doctors,were invited to join as Surgeon-Lieutenants, including those who only had“temporary registration”, and there was nothing which even hinted at thepossibility that “temporary registration” would be given lower priority ormight result in a lower rank or position, or that “full registration” must be
obtained even laterThere was thus no ambiguity in the advertisement.
Had there been an ambiguity, that would have had to be construed contraproferentem, and in favour of the petitionemA notice calling for applicationsfor employment must be clear guide forlhe honest applicant, and publicinstitutions and their advisers must not resort to strained constructions in
order to covert them into devious snares for the unwaryIf the Navy
wished to impose any condition, it should have done so in the advertisementor at the stage of appointment”. Fernando J held further that “as l hadoccasion to point out in Weerasinghe vs. Gamage (2) an employer mustexercise his powers with due care and restraint, for just as it is implicit inevery contract of service that the employee shall be loyal, shall treat hissuperiors with due respect, and shall guard the reputation of the employer,
■ so also it is implicit that the employer in his treatment of employees shallhave care for their dignity and reputation and shall not cause themunnecessary personal distress and prejudice. Often distress and prejudicecannot be avoided, but where it can be avoided, it must be avoided. Thepetitioner was entitled in law to a full explanation, and as a matter ofcourtesy, to an expression of regret for the alleged error. The impugnedmessage was hardly the kind of signal which builds morale and inspiresloyalty and dedication, especially in those called upon to risk their lives inthe course of duty ; and a prolonged failure to disclose a reason wouldhave added to the petitioner's stress and frustration, liable to result in poor
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performance of duties to the detriment of the Navy” is equally fitting to thefacts of the present case.
One could see how desperate the Air force was at that time by not onlyinviting provisionally registered Medical Practitioners and Interns, but byinviting the petitioner to accept the appointment at the interview itself. Thisappears to be the first job that the petitioner applied for no sooner than shefinished her internship. She too, it appears, accepted the job no soonerthan it was offered to her.
In the field of public law, individuals may not have strictly enforceablerights but they may have legitimate expectations. Such expectations maystem either from a promise or representation made by a public
bodyDecisions affecting such legitimate expectations are subject to
judicial review 2 thus the decision of the respondents not to recommendJudicial remedies in Public Law by Lewis the petitioner for promotion istherefore liable to be quashed. However this court is unable to quash thesaid decision since it is not before court. However the court issues a writof Mandamus directing 1 to 3 respondents to make the necessaryrecommendation within one month to Her Excellency the President topromote the petitioner to the rank of Squadron Leader with effect from06.09.1999, the date on which others who joined along with the petitionerwere promoted. I also award Rs. 25,000.00 as costs of this application tothe petitioner payable by the 1 st respondent.
SRIPAVAN J. — I agree.
Writ of Mandamus issued.