DR. PREETHI WEERASEKERA v. DR. REGGIE PERERA, DIRECTOR-GENERAL OF HEALTH S

023-SLLR-SLLR-1999-V-2-DR.-PREETHI-WEERASEKERA-v.-DR.-REGGIE-PERERA-DIRECTOR-GENERAL-OF-HEALTH-S.pdf


SC Dr. Preethi Weerasekera v. Dr. Reggie Perera, Director-General of
Health Services and Others241
DR. PREETHI WEERASEKERA
v.DR. REGGIE PERERA, DIRECTOR-GENERAL OF HEALTHSERVICES AND OTHERS
SUPREME COURTAMERASINGHE J„
GUNAWARDANA, J., ANDWEERASEKERA, J.
S.C. APPLICATION NO. 816/97 (FR)FEBRUARY 25, 1999
Fundamental rights – Appointment of a specialist medical officer – Failure toappoint the best candidate – Dispute regarding eligibility for appointment – Article12 (1) of the Constitution.
By a circular dated 9.5.97 the Ministry of Health called for applications forthe post of Consultant Rheumatologist, Colombo South Hospital, Kalubowila.The closing date for applications was 10.6.97. Board certification as a specialistby the Post-Graduate Institute of Medicine (PGIM) was a condition of eligibilityfor appointment. The petitioner applied for the post. There were four other applicants.On 5.9.97 the Consultants' Transfer Board appointed the 7th respondent insteadof the petitioner who had the highest points at the selection. The petitionerwas overlooked on the ground that as she had not been Board certifiedas a specialist on 10.6.97, the closing date for applications, she was not eligiblefor appointment. However, the petitioner had after obtaining the degree of MBBSin 1975 engaged herself in the field of Rheumatology since 1980, completedher MD examination in 1993 and received one year's foreign training in Rheumatology.On her return she was appointed acting Consultant in Rheumatology andRehabilitation at the General Hospital, Anuradhapura.
Pending the selection of a candidate for the post in dispute, on 3.6.97 theDirector PGIM informed the Director-General of Health Services that the petitionerhad completed her training and that the Board of Studies would considerher for Board certification as a specialist with effect from 13.12.95. On 30.6.97the Director of Health Services was informed that on 27.6.97 the Board ofstudies had recommended to the Board of Management PGIM that the petitionerbe certified as a specialist with effect from 17.12.95 and on 2.9.97 the Directorof Health Services was informed that the Board of Management had approvedthat the petitioner be certified as a specialist in Rheumatology and Rehabilitationwith effect from 17.12.95.
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[1999] 2 Sri LR.
Held:
In view of the correspondence between the PGIM and the Director-General ofHealth Services and the fact that the petitioner had been certified as a specialistwith effect from 17.12.95 the petitioner was Board certified on the date of themeetings of the Transfer Board. She was also Board certified on the closing datefor applications, namely 10.6.97 although she lacked documentary proof of suchcertification on that date. In the circumstance, the Transfer Board misled itselfin supposing that the petitioner was not eligible for appointment, and infringedher rights under Article 12 (1) of the Constitution.
Case referred to:
1. SmithKIine Beecham Biological S.A. and Another v. State PharmaceuticalsCorporation of Sri Lanka and Others (1997) 3 Sri LR 20 at 49-53.
APPLICATION for relief for infringement of fundamental rights.
R.K. W. Goonesekera with Ms. Shiranthi Jayatilake for petitioner.
S.Marsoof, DSG with K. Arulanandan for 1 st, 2nd, 3rd, 6th and 7th respondents.D.. S. Wijesinghe PC with J. C. Weliamune for 4th and 5th respondets.
Cur. adv. vult.
April 26,1999.
AMERASINGHE, J.
By Circular Letter No. 4974 dated the 9th of May, 1987, the Ministryof Health, Highways and Social Services invited applications from"Medical Specialists with appropriate specialist qualifications" for thepost of Consultant Surgeon and the post of Consultant Rheumatologist,Colombo South Hospital, Kalubowila. Applicants were required tosubmit their applications to reach the Ministry "not later than 10.06.1997". The Circular Letter stated that the appointments would bemade "in accordance with the Health Service Minute of 17th May,1991". The Minute, which was published in Gazette No. 662/11 of17th May, 1991, inter alia, provides as follows:
"5.6.4. Medical Officers in Grade II who have successfully com-pleted the appropriate post-graduate training programme, andpossessing qualifications as listed in Appendix I, and obtainedBoard Certification of the Post-Graduate Institute of Medicine,
SC Dr. Preethi Weerasekera v. Dr. Reggie Perera, Director-General of
Health Services and Others (Amerasinghe, J.)243
University of Colombo, are eligible for appointment as SpecialistMedical Officers." Appendix I does not list "Rheumatology" as aspeciality and does not specify a “Recognized Qualification". Evidentlyit was regarded as a "sub-speciality", for the amendments to the Minutemade by the Cabinet of Ministers and published in GazetteNo. 818/1 of 9th May, 1994, although not including Rheumatology inthe amended list of specialities, refers to it in prescribing the"Requirements for Specialized Training in sub-specialities". The amend-ing Minute of 1994 provides, inter alia: “Following successful com-pletion of the MD Part II, those intending to specialise … in. . . Rheumatology and Rehabilitation . . . will be required to spenda period of two to four years, of satisfactory training as follows:… A minimum period of 2 years post MD training in Rheumatologyand Rehabilitation. This will include one-year training in a RhematologyUnit in Sri Lanka with in-patient facilities and one year in an approvedinstitution abroad". "The amended Minute goes on to deal with thesubject of "Board Certification as a Consultant" in the following terms:"A trainee will be certified as a Consultant following the completionof a period of 2 to 4 years after the MD Part II examination, dependingupon whether the trainee intends to be a general Physician orspecialised in one of the branches of Medicine as has been indicatedabove." The amending minute states: "6.1.3. The seniority for specialistappointments would be Grade II seniority. In the case of appointmentsin Teaching Hospitals, it will be on a point scheme. Four points forPreliminary Grade (2 points per year), 24 points for Grade II (2 pointsper year) and 2 points per year for each year of service in GradeI and 1 point for each year of service as a Consultant."
The petitioner applied for the post of "Consultant Rheumatologist"of the Colombo South Hospital, Kalubowila. There were four otherapplicants for that post. The Hospital was a “Teaching Hospital", andit was not in dispute, as the respondents stated in their written andoral submissions, that, in terms of the Minute in regard to MedicalPersonnel of the Health Services of 1991, as amended in 1994, theappointment should have been made on the basis of the Ministry's"points scheme". The selection of candidates was made by the"Consultants' Transfer Board". According to the record of evaluationmade by the Transfer Board marked as document 3R1 and filed aspart and parcel of the affidavit of the third respondent, the "total points"obtained by the applicants were as follows:
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[1999] 2 Sri LR.
Dr. (Mrs.) L P. WeerasekaraDr. L S. WijayaratnaDr. K. A. N. GunatilakaDr. J. K. J. S. K. JayanettiDr. (Mrs.) A. N. H. Herath
35.5
30
27.5
(No points mentioned)
Although, on the face of it, Dr. Mrs. Weerasekera, the petitioner,should have been appointed, Dr. L. S. Wijayaratna, the 7th respond-ent, was appointed instead. The explanation for this is found in thefollowing minute made on document 3R1: "Dr. Mrs. L P. Weerasekerawas not board certified on the date fixed for computation of pointsfor this appointment. Board of Study which met on 27.06.97 hasrecommended board certification, subject to ratification by the Boardof Management. Therefore, she has not fulfilled the requirements foreligibility to apply for the post". (The emphasis is the Board’s)
Eligibility, indeed, lies at the heart of the matter before thisCourt. Did the petitioner, in terms of the prescribed criteria, deserveto be recommended for appointment? Was she a suitable, fitand proper person to be appointed? It was not in dispute that todaythe petitioner is “a medical specialist with appropriate specialistqualifications" as required by the Circular Letter. Learned counselfor the respondents, however, contends that on the closing date forapplications for the post of Consultant Rheumatologist, namely, the10th of June, 1997, the petitioner had not received "Board Certification"as a Consultant and therefore at that date she was not a medicalspecialist with the appropriate specialist qualifications. Learned counselfor the respondents, cited SmithKIine Beecham Biologicals SAand Another v. State Pharmaceuticals Corporation of Sri Lankaand Others,(1) in support of his submission that eligibility should bedetermined by reference to the "closing date".
In SmiithKIine applications for the supply of Rubella vaccinehad been invited by the State Pharmaceuticals Corporation. TheCourt held that the only responsive offer was from the petitioner, foron the date and at the time specified for the closing of thetender, the only registered product in terms of the advertisementcalling for applications was that of the petitioner.
Whereas, registration of the product, for the reasons explainedin the judgment, was of critical importance in SmithKIine, and
SC Dr. Preethi Weerasekera v. Dr. Reggie Perera, Director-General of
Health Services and Others (Amerasinghe, J.)245
was an expressly stipulated condition of a responsive bid, BoardCertification in the matter before this Court was not expressly specifiedas a condition precedent to the appointment of a ConsultantRheumatologist. It may be supposed that the requirement that thepetitioner had to be -'a medical specialist with appropriate specialistqualifications' carried with it the corollary that the applicant was "BoardCertified". However, in practice, "Board Certification" was qualitativelyof less significance than the registration of the product required inSmithKIine. For instance, there were four applicants for three postsof Paediatricians at Anuradhapura, Avissawella and Nawalapitiya.Dr. K. U. C. Perera was regarded by the Transfer Board as "eligible"despite the fact that he had not received "Board Certification" andwas preferred to Dr. A. C. C. P. Amarasinghe who was "BoardCertified". (Document 3R11).
Moreover, the facts of the case before us places it on an entirelydifferent footing from SmithKIine. The petitioner was not as it werean "unknown", "untested" product as the rival vaccines were inSmithKIine. The petitoner passed her MBBS examination in 1975 and,among other things, served as Registrar, Rheumatology, ColomboTeaching Hospital (1992-1994) and Senior House Officer, Rheumatology(1980-1989). She completed her MD examination in 1993 and func-tioned as Senior Registrar in Rheumatology at the General (Teaching)Hospital, Colombo, from 1994 to 1996. She spent a year as RegistrarRheumatology at the Princess Alexandra Hospital, Harlow, UK in 1996-97. On her return to Sri Lanka she was appointed Acting Consultantin Rheumatology and Rehabilitation of the General Hospital,Anuradhapura.
In response to the Circular Letter dated 9th May, 1997, the petitionerhad applied for the post of Consultant Rheumatologist, Colombo SouthHospital, Kalubowila. The Director of the Post-Graduate Institute ofMedicine, University of Colombo, on the 3rd of June, 1997, wrote tothe Director-General of Health Services informing hjm that thepetitioner had "completed all facets of training for Board Certificationin Rheumatology and Rehabilitation". The letter went on to state asfollows: "Her eligibility for Board Certification as a specialist with, effectfrom 17th December, 1995, will be taken up for consideration at themeeting of the Board of Study in Medicine to be held on 29th June,1997 and ratification by the Board of Management in July, 1997".
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The matter of 'Board Certification' would have been taken upon the 30th of May, 1997, but for the fact that on account ofTrade Union action by the non-academic staff of the Post-GraduateInstitute of Medicine, the meeting was postponed. This was pointedout to the Deputy Director-General of Health by the petitioner whorequested that in the circumstances she should not be penalized forfailing to submit the letter of Board Certification. The petitioner madea similar submission to the Government Medical Officers' Association(GMOA) which requested her to send her explanation on the questionof Certification to the Director-General of Health Services "so that itcould be discussed at the next Consultants' Transfer Board".
On the 30th of June, 1997, the Acting Director of the Post-GraduateInstitute of Medicine wrote to the Director-General of Health Services,as follows: “This is to inform you that subject to ratification by theBoard of Management, the Board of Study in Medicine at its lastmeeting held on 27th June, 1997, recommended that Dr. (Mrs.) LP. Weerasekara be Board Certifiable as a Specialist in Rheumatologyand Rehabilitation with effect from 17.12.1995. She could now bereleased from the training programme with immediate effect. Theabove facts may be considered when she applies for a specialist postin the Department of Health".
On the 2nd of September, 1997, the Director of the Post-GraduateInstitute of Medicine informed the Director-General of Health Servicesthat “the Board of Management having considered the recommenda-tion of the Board of Study in Medicine has approved thatDr. (Mrs.) L. P. Weerasekera … be certified as a specialist inRheumatology and Rehabilitation with effect from 17th December,1995".
When the Consultants' Transfer Board met on the 5th of Septem-ber, 1997, it had before it, or should have had, the petitioner'sexplanation for not submitting a document evidencing BoardCertification. It also had, or should have had, the letters of the Directorof the Post-Graduate Institute of Colombo dated the 9th of May, 1997and the letter of the Acting Director of the Post-Graduate Institute ofMedicine indicating that the petitioner had completed all facets oftraining and that certification was due to take place, and that whenit did take place, it would be retrospective. The Transfer Board also
SC Dr. Preethi Weerasekera v. Dr. Reggie Perera, Director-General of
Health Services and Others (Amerasinghe, J.)247
had or ought to have had, the letter from the Director of the Post-Graduate Institute of Medicine dated the 2nd of September,1997,stating that the petitioner had been Board Certified "with effect from17th December, 1995". At the date of the meeting of the TransferBoard, therefore, the petitioner was Board Certified. She was alsoBoard Certified on the closing date for applications, namely the 10thof June, 1997. What she lacked on the 10th of June was documentaryproof of Board Certification. In the circumstances, the Consultants'Transfer Board misled itself in supposing that the petitioner was noteligible for appoinment and failed to afford her equal treatment interms of the Minute on Health (as amended) and read with the CircularLetter of the 9th of May, 1997. Consequently, her rights under Article12 (1) of the Constitution were violated.
I declare that the 1st-3rd respondents have violated the fundamen-tal rights of the petitioner guaranteed by Article 12 (1) of theConstitution and that the selection of the Consultants' Transfer Boardof the 7th respondent to the post of Consultant Rheumatologist,Colombo South Hospital, Kalubowila, was null and void.
The State shall pay the petitioner a sum of Rs. 25,000 as costs.
GUNAWARDANA, J. – I agree.WEERASEKERA, J. – I agree.
Relief granted.