021-SLLR-SLLR-2001-V-1-DR.-MARIO-GOMEZ-v.-UNIVERISITY-OF-COLOMBO-AND-OTHERS.pdf
DR. MARIO GOMEZ
v.UNIVERSITY OF COLOMBO AND OTHERS
SUPREME COURTS.N. SILVA. C. J.
ISMAIL. J. ANDEDUSSURIYA, J.
SC FR APPLICATION NO. 833/997th AND 14th DECEMBER, 2000
Fundamental rights – Appointment of a University Lecturer – Conditionfor acquiring proficiency in Sinhala/Tamll – Termination of servicesfor failure to acquire proficiency – Article 12(1) of the Constitution -Time bar.
By letter dated 3 rd April 1990 the petitioner was appointed a ProbationaryLecturer In Law in the University of Colombo. Clause 8 of the saidappointment required the petitioner to pass the prescribed proficiencytest In Sinhala/Tamll within a period of one year from the date ofappointment or obtain exemption from sitting the test by teaching In Slnhalaor Tamil during the first year of appointment. That clause also stipulatedthat failure to pass the proficiency test or to gain exemption from the testwould result In the termination of appointment without compensation.
Even by 16“" April 1999, the petitioner had not compiled with the aforesaidconditions of appointment. He sat the proficiency test once around 1998but without success. He had been permitted several extensions of time toacquire the requisite languages proficiency. In June, 1998 he soughtexemption on the basis of his pass In Slnhala at the N.C.G.E. but theUniversity replied him that exemption could be considered only If heagreed to lecture In Slnhala. However, he avoided lecturing In Slnhala. Inthe circumstances, on 23rd August 1999, the Vice-Chancellor of the University(the 2nd respondent) Informed the petitioner that the Council had decidedto terminate the petitioner’s services with effect from 1st September 1999as he had failed to obtain proficiency In Slnhala as required by Clause 8 ofhis letter appointment dated 3rd April 1990.
On 23rd September 1999 the petitioner came before the Supreme Courtcomplaining that the termination of his services was violative of hisfundamental rights.
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Held :
It cannot be said that the termination of the petitioner's services by Itselfwas an infringement of his fundamental rights. As the termination wasonly a consequence of his failure to comply with Clause 8 of his appointmentletter, the court has to first hold that the said Clause is an Infringement offundamental rights. The petitioner was aware In April 1990 of theImplications of Clause 8. He. however, did not seek a declaration fromthe court that the said Clause Infringed his fundamental rights. Hence theapplication dated 23rd September 1999 Is time barred.
APPLICATION for relief for Infringement of fundamental rights.
Romesh de Silva, RC. with Hlran de Alwls and Sugath Caldera forpetitioner.
H.L. de Silva, RC. with C. Crossed Thamblah and Aravlnda Athurupanafor Is1 and 2nd respondents.
M. Gopallawa, State Counsel for 3rd respondent.
Cur. adv. vult.
May 25, 2001.
EDUSSURIYA, J.The Petitioner had been appointed by the Council of theUniversity to the post of Probationary Lecturer In Law in theUniversity of Colombo, Sri Lanka and by letter dated 3rd April1990 (C) the Petitioner was so informed by the then ViceChancellor.
Clause 8 of the said document *C’ required the Petitioner topass the prescribed proficiency test in Sihnala/Tamil within aperiod of one year from the date of appointment or obtainexemption from sitting the test by teaching in Sinhala or Tamilduring the first year of appointment.
Clause 8 further set out that failure to pass the proficiencytest or to gain exemption from the test would result in thetermination of the appointment without compensation.
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Dr. Mario Gomez u University of Colombo and Others
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By letter dated 14th July 1997 (D8) the Vice Chancellorwith reference to the said Clause 8 In document *C’ had calledupon the Petitioner to Indicate within one week of receiving D8a date on which the Petitioner was prepared to sit the proficiencytest, so that arrangements could be made.
On 27th July 1997 the Petitioner had replied to D8 by D11stating that he would like to sit the proficiency test in Sinhala inthe first week of November.
The proficiency test had then been fixed for 30th September1997. On 2nd October 1997 by D13 the Petitioner had askedfor more time to prepare for the test and the said proficiencytest had been refixed for 30th November 1997 by D14 of 21stOctober 1997. Then, on 2nd November 1997 the Petitioner hadasked for time till the end of January 1998 to sit the proficiencytest on the grounds of ill-health and by D16 dated 26thNovember, time had been granted till 31st January 1998 andrequested the Petitioner to obtain a date to sit the said test afterdiscussions with the Head of the Department of Sinhala.
Then after a lapse of several months on 7th June 1998 (D17)the Petitioner had inquired from the Vice Chancellor whetherhe could be exempted from sitting the proficiency test in view ofhis pass in Sinhala at the N.C.G.E. By letter dated 13th July1998 (E) the Vice Chancellor had replied stating that theProbationary Study Leave Committee had considered thePetitioner’s request and had decided that the Petitioner’s saidrequest would be considered only if the Petitioner agreed to takelectures in Sinhala. Then, by D19 of 5th August 1998 the ViceChancellor had invited the attention of the Petitioner to the letterof 13th July 1998.
By letter dated 15th July 1998 (F) the Petitioner had repliedthe letter E, indicating his willingness to take lectures In Sinhala.Then, from the letter dated 4th August 1998 (R2) addressed bythe Petitioner to the Vice Chancellor it appears that the Petitioner
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had sat the proficiency test without success and requested thathe be permitted to sit again.
The Acting Registrar of the University has replied the sameby D18 of 16th September 1998 informing the Petitioner thatthe Vice Chancellor had allowed the Petitioner to re-sit theproficiency test. So that, by 4th August 1998 it is clear that thePetitioner had decided not to deliver lectures in Sinhala but tore-sit the proficiency test in Sinhala and the process of fixing adate for the proficiency test had started again as is evident fromR3 of 24th September 1998, R5 of 17th November 1998 and R6of 16th April 1999. These are all letters written by the Petitionerasking for further time over and over again, to re-sit theproficiency test. 1 may also add that all this correspondencefrom 1997 to April 1999 shows that the Petitioner was engagedin an exercise of both avoiding to sit the Sinhala proficiency testas well as avoiding to deliver lectures in Sinhala. Then on 23rdAugust 1999 by letter marked G the Vice Chancellor hadinformed the Petitioner that the University Council had decidedat its 283rd meeting held on 5th August 1999 to terminate thePetitioner’s services with effect from 1st September 1999. as thePetitioner had failed to obtain proficiency in Sinhala, as requiredby Clause 8 of the letter dated 3rd April 1990.
On 23rd September the Petitioner came before this Courtseeking redress on the ground that his fundamental rights asguaranteed by Articles 12, 13 and 14 have been violated and tohave the decision terminating his services set aside, forcompensation etc.
At the hearing of this application Counsel for the 1st and 2ndRespondents, namely, the University of Colombo and ProfessorSavitri Goonasekera, the Vice Chancellor of the University ofColombo, raised the following preliminary objections;
that the Petitioner had failed to name the members of the1st Respondent Council as Respondents since thePetitioner’s services were terminated by the 1st RespondentCouncil,
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that the Petitioner had failed to comply with Rule 44 (1) (a)of Part IV of the Supreme Court Rules 1990 and specify thespecific provisions of the Constitution under which thePetitioner claims that his fundamental rights have beeninfringed,
that the application of the Petitioner to this Court for reliefIs time barred.
I propose to deal with the third (3rd) preliminary objectionfirst, namely that the Petitioner’s application to this Courtcomplaining of a violation of his fundamental rights is out oftime.
It is clear on a reading of the Petition that the Petitioner wasfully aware from the date of his appointment that he had tocomply with the requirements of Clause 8 of the letter ofappointment marked ‘C’ dated 3rd April 1990.
It is as a result of the Petitioner falling to comply with thesaid requirement that his services were terminated in accordancewith the terms and conditions laid down in the letter ofappointment of 3rd April 1990 since the said Clause 8categorically sets out that the failure to pass the proficiency testor to gain exemption from the proficiency test would result inthe termination of the Petitioner’s services.
Thus, the Petitioner cannot now be heard to say that thisrequirement was redundant because he attended to the workallocated to him in English and that he could continue to do sowithout complying with the said requirement. The Petitioner
has stated in paragraph 41 of his affidavit “at the time 1
signed the contract of employment I could not have rejected aparticular clause if I wished to accept the post. If 1 wished to bea Lecturer I had to sign the letter as set out.” So that quite apartfrom anything else, this confirms that the Petitioner was fully
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well aware in April 1990 of the implications of Clause 8 of theletter of appointment “C" which is alleged to be violative of hisfundamental rights, and that if he did not comply with therequirements of Clause 8 his services would be terminated.However, not only did the Petitioner accept the post, but alsodid not come before this Court seeking a declaration that thesaid Clause 8 was an infringement of his fundamental rights asalleged. The termination of the Petitioner’s services by letterdated 23rd August 1999 was effected under Clause 8 ofdocument ‘C’, which according to the Petitioner was aninfringement of his fundamental rights. (Paragraph 35 of thePetitioner’s affidavit).
The termination of the services of the Petitioner was a directconsequence of the Petitioner’s failure to comply with Clause 8which according to the Petitioner himself is violative of hisfundamental rights.
Counsel for the Petitioner sought to make out that whilstClause 8 violated the Petitioner’s fundamental rights, thetermination of the Petitioner’s services was also such a violationand that the Petitioner came to this Court within one month ofthe termination of his services. This contention is not tenablesince, it must be borne in mind that before the Petitioner can begranted any redress, this Court will have to first hold that Clause8 of document ‘C’ is an infringement of the Petitioner’sfundamental rights and then hold that the termination of thePetitioner’s services which followed thereupon cannot thereforestand. Therefore, it cannot be said that the termination of thePetitioner’s services by itself was an infringement of thePetitioner’s fundamental rights. It is his terms of employmentthat were violative of his fundamental rights, if at all.
I therefore hold that this application is time barred.
In the circumstances, it is not necessary for this Court todeal with the other two preliminary objections raised by theRespondent’s Counsel.
SCDr. Mario Gomez v. University of Colombo and Others279
(Edussurlya , J.)».
For the above mentioned reasons this application isdismissed with costs fixed at Rs. 5,000/-.
S.N. SILVA, C. J. – I agree.
ISMAIL, J.- I agree.
Application dismissed.