Gunaratne and Others v. Sri Lanka Telecom and Others
GUNARATNE AND OTHERS
v.SRI LANKA TELECOM AND OTHERS
FERNANDO, J., KULATUNGA. J. ANDWADUGODAPITIYA, J.
SC APPLICATION NO. 70/92.
15 JUNE, 1992.
Fundamental Rights – Scheme of Recruitment and Promotion – Favouredtreatment to graduate clerks – Classification of graduate clerks – Discrimination- Article 12 (1) of the Constitution.
Upon the enactment of the Sri Lanka Telecommunications Act, No. 25 of 1991the petitioners along with other officers who were in the service of theTelecommunications Department opted to become employees of the 1strespondent Corporation (Sri Lanka Telecom) under section 28 of the said Act.In terms of section 31 of the same Act they were entitled to terms andconditions not less favourable than those on which they had been employedin the Department of Telecommunications. On 03.01.1992 the Corporationadopted new schemes of recruitment to staff posts. The question for decisionwas whether the classification of the graduate clerks for preferential treatmentin the new schemes was reasonable, the test of permissible classificationbeing that it must be founded upon an intelligible differentia having a rationalrelation to the object sought to be achieved.
(a) If a scheme is prima facie non-discriminatory, it cannot be challengedin limine on the ground of possible discrimination in its application. In such acase, relief may be sought only upon the occurrence of discrimination.
If however a scheme affecting promotions in an existing service isinherently discriminatory, as is alleged here, the right to relief accrues immediatelyupon the adoption of such scheme and prospective candidates for promotion undersuch scheme may apply for a declaration that such scheme is invalid on theground that it constitutes an infringement or an imminent infringement of theirrights under Article 12 (1).
(a) A variation of schemes of recruitment or preparation of a fresh schemenot violative of Article 12 (1) and dictated by the needs of the service, ispermissible.
In the impugned schemes of recruitment –
(a) the express requirement of special ability and merit as a principle ofpromotion has been deleted.
Sri Lanka Law Reports
(1993) 1 Sri L.R.
emphasis is placed on the requirement of a specific period of servicewith preferential treatment to graduate clerks.
the new schemes whilst giving preferential treatment to graduate clerks,impose more stringent conditions on others by imposing a requisite period ofservice for promotion different from what is prescribed by the previous schemes.
possession of a degree gives a clerk a preferential right to promotionwithout any consideration as to whether such degree is relevant to the dutiesof the higher post.
the new schemes of recruitment have been prepared primarily withthe object of alleviating the social grievances of under-employed graduates. Indoing so the legitimate expectations of non-graduate clerks counting 20 to 30years' of service have been disregarded.
the new schemes are unreasonable because they are not based oncriteria having a rational relation to the object sought to be achieved namely
the efficient functioning of the Telecommunications Service.
if it is desired to give preferential treatment to the graduate clerks inthe interest of the service and for utilising their skills, the Corporation could doso on the basis of relevant qualifications, with reasonable notice to those affectedand without prejudicing the legitimate expectations of clerks who are on theverge of promotion under the previous schemes.
APPLICATION for relief for infringement of fundamental rights.
R. K. W. Goonesekera with Peter Jayasekera, Suranjith Hewamanna and C.Swamadhipathy for the petitioners.
Asoka de Silva, D.S.G. with A Jinasena, S.C. for the respondents.
Cur. adv. vult.
August 24, 1992.
The petitioners are Clerks, Class 1 in the Clerical Service of "SriLanka Telecom" (the 1st respondent) which is a public corporationestablished on 06.02.90 by an Order under s. 2 of the State IndustrialCorporations Act, No. 49/1957 (P7). All of them had originally joinedthe Clerical Service of the former Posts and TelecommunicationsDepartment. Thereafter, when the Telecommunications Departmentwas established as a separate Department, they continued in theClerical Service of that Department, and were governed by the
SC Gunaratne and Others v. Sri Lanka Telecom and Others (Kutatunga, J.)111
Minutes on the Telecommunications Clerical Service (P1) ; and uponthe enactment of the Sri Lanka Telecommunications Act, No. 25 of1991 they, with other officers, opted to become employees of the1st respondent Corporation (“The Corporation") under s. 28 of thesaid Act. In terms of s. 31 thereof, they were entitled to terms andconditions not less favourable than those on which they had beenemployed in the Department of Telecommunications.
The petitioners complain that the revised schemes for recruitmentto Staff Grade posts in the Corporation afford more favoured treatmentto graduate clerks. They were granted leave to proceed in respectof Article 12 (1) of the Constitution. In their application the petitionersalso sought relief against a decision to appoint 6 graduate clerks tothe Staff Grade, acting outside the scheme of recruitment. However,the learned Deputy Solicitor-General for the respondents informed usthat the said decision will not be implemented. As such, the reliefclaimed by the petitioners is now limited to a declaration that theaforesaid revised schemes for recruitment are violative of their rightsunder Article 12 (1) and consequential reliefs. In addition to theCorporation, the petitioners have joined as parties to this application,the 2nd, the 3rd and the 4th respondents, being the ManagingDirector and the General Manager (Human Resources Development)of the Corporation, and the Secretary, Ministry of Posts and Telecom-munications, respectively.
Originally, entry into the Clerical Service was through the CentralClerical Examination held by the Department of Examinations forcandidates, the requisite educational qualification being the SeniorSchool Certificate or the General Certificate of Education (OrdinaryLevel). From 1968, recruitment was by interview of eligible candidates.Under the Service Minute P1 which continues to apply even afterthe establishment of the Corporation, the Clerical Service consistsof Class II (with a cadre of 752) and Class I (with a cadre of 125).Initial recruitment is to segment B of Class II. Officers are promotedto segment A upon passing a qualifying examination after 4 years'of service. Their next promotion is to Class I on the basis of seniorityand merit. A clerk in Class I is eligible upon selection by examinationand interview to be appointed to the post of Examiner of Accountswhich post forms an integral part of the Clerical Service. The cadreof Class I Clerks and Examiners of Accounts is 125.
Sri Lanka Law Reports
(1993) 1 SriLR.
Staff Posts in the Telecommunication Service and the cadre ineach grade consist of –
Administrative Assistant (07)
Assistant Administrative Secretary/Assistant Superintendent(Commercial) being posts carrying the same salary scale, (24and 15 respectively).
Administrative Secretary (04)
Commercial Superintendent (01)
Senior Administrative Secretary (01).
Until 1988, vacancies in the post of Administrative Assistantwere filled by promoting Class I Clerks/Examiners of Accounts onthe basis of seniority and merit. The promotion of AdministrativeAssistants to the post of Assistant Administrative Secretary/AssistantSuperintendent (Commercial) was also on the basis of seniority andmerit.
On 06.06.88 a new scheme of recruitment to the post of AssistantAdministrative Secretary/Assistant Superintendent (Commercial) (P2)was adopted. Under the said scheme the following officers are eligiblefor promotion :
Class I Clerks with 6 years’ service
Examiners of Accounts with 6 years' combined service asExaminers and Class I Clerks.
Appointments are made after interview by a Selection Board,preference being given to merit over seniority.
On 01.12.88 a scheme of recruitment to the next higher staff gradeviz. Administrative Secretary was adopted (P3) in terms of which anofficer with 3 years' service as Assistant Administrative Secretary/Assistant Superintendent (Commercial) is eligible for promotion to thatgrade on the basis of seniority and merit. The selection for promotionis after interview by a Selection Board.
The above schemes of recruitment appear to have been generallyacceptable to the majority of the officers in the TelecommunicationsDepartment. However, the graduate clerks were not satisfied with theirpromotional prospects under the said schemes. Acting on theirrepresentations the 5th respondent had (in June, 1990) directed the
SCGunaratne and Others v. Sri Lanka Telecom and Others (Kulatunga, J.)113
Department to prepare draft amendments to the schemes ofrecruitment providing for preferential treatment to graduate clerks inthe matter of promotion to staff posts. This was challenged in SCApplication No. 25/90 by the Telecommunication Clerical ServiceUnion and 3 non-graduate clerks (P4). The said application waswithdrawn in November 1990 in view of the averments in theaffidavit of the 5th respondent which indicated that the impugnedproposals for amendments to the schemes of recruitment will not beimplemented, particularly in view of the impending transfer ofTelecommunication Services to the Corporation (P5 and P6).
On 03.01.90 the Corporation adopted the following new schemesof recruitment to staff posts :
Administrative Assistant (P11A)
According to this scheme, Class I Clerks with 6 years' serviceand Examiners of Accounts with 6 years' combined serviceas Examiner and Class I Clerk are eligible for promotion.However, where such officer is a graduate, only 2 years' serviceis required.
Assistant Administrative Secretary/AssistantCommercial Superintendent (P11B)
According to this scheme the following officers are eligiblefor promotion :
Administrative Assistants with 1 year's service or 8 years'combined service as Administrative Assistant and ClassI Clerk.
Class I Clerks with 8 years' service and Examiners ofAccounts with 8 years' combined service as Examiner andClass I Clerk. However, where any such officer is a gradu-ate, only 4 years' service is required.
Administrative Secretary (P11C)
According to this scheme, Assistant Administrative Secretaries/Assistant Commercial Superintendents with 3 years', combinedservice in the said grade and as Administrative Assistants areeligible for promotion.
Sri Lanka Law Reports
(1993) 1 Sri LR.
Note : Appointment to each of the above grades will be bypromotion of eligible officers on the recommendationof a Selection Board, after an interview.
The petitioners state that the preferential treatment sought to begiven to graduate clerks by P11A and P11B has no rational basisand hence such treatment amounts to discrimination violative of Article12 (1) of the Constitution. The 2nd respondent states that the objectof the revised schemes is to provide for a better and more reasonablemethod of promotion and that the proposed new criteria for promotionare based "mainly on the efficiency of the officers to be promoted".He adds that in preparing these schemes the grievances of under-employed graduates in the public service were also taken intoconsideration.
According to 2R2 (minutes of a discussion held on 31.05.91 bythe Minister of Posts & Telecommunications with the clerks in theTelecommunications Department) it would appear that a smallminority of these clerks are graduates and they have formed anorganisation (Graduates Organisation). They urged the Ministerto revise the schemes of recruitment to enhance their promotionalprospects. However, the Telecommunication Clerical Service Unionopposed this request on the ground that it was unreasonable.Both in SC Application 25/90 and in these proceedings the petitionershave urged that most of the graduate clerks had obtained externaldegrees whilst in service and that it is unreasonable to give thempreferential treatment for promotion based on such qualifications.Nevertheless, the evidence clearly shows that even after theconclusion of SC 25/90, the graduates had been campaigning forbettering their prospects and that in the end they succeeded inobtaining relief through the revised schemes of recruitment P11A andP11B.
This Court has to determine whether the classification of thegraduate clerks for preferential treatment in the said schemes isreasonable, the test of permissible classification being that it mustbe founded upon an intelligible differentia having a rational relationto the object sought to be achieved. In their objections therespondents took up the position that this application must fail in liminein that (a) the impugned acts do not constitute "executive oradministrative action" and (b) the petitioners have failed to reveal how
SC Gunaratne and Others v. Sri Lanka Telecom and Others (Kulatunga, J.)115
they would be affected if the revised schemes are adopted. Thelearned Deputy Solicitor-General did not press the first objection.As regards the second objection, he submitted that if a particularofficer is affected by the new schemes, he must come forward andseek relief in which event, it is not sufficient to show that the newschemes will generally affect the members of his Union ; and thatthe petitioners have failed to establish how they would be affectedby the said schemes.
The above submission is possibly attributable to the experiencethat Courts have often granted relief in respect of an impugnedscheme of recruitment upon the application of a person who has beenadversely affected by selections made under such scheme. Such reliefis granted at the stage when the impugned scheme is implemented.If a scheme is prima facie non-discriminatory, it cannot be challengedin limine on the ground of possible discrimination in its application.In such a case, relief may be sought only upon the occurrence ofdiscrimination. However, if a scheme, such as the one before us,affecting promotions in an existing service is inherently discriminatory,the right to relief accrues immediately upon the adoption of suchscheme and prospective candidates for promotion under suchscheme may apply for a declaration that such scheme is invalid onthe ground that it constitutes an infringement or an imminentinfringement of their rights under Article 12 (1). On this basis thepetitioners are entitled to seek relief ; and the preliminary objectionto their application fails.
Learned Counsel for the petitioners submitted that the impugnedschemes have gone beyond the principle of seniority and merit asa basis of promotion when it concerns a graduate clerk ; and thatthis educational qualification applied for giving them preferentialtreatment has absolutely no bearing on the preparation of a fairscheme for promotion. He added that the petitioners along with otherclerks, have risen to Class I after many years of service and thateven if it is sought to amend the schemes for promotion for givingpreferential treatment to graduate clerks, it must be done on the basisof relevant qualifications and with reasonable notice to enable thoseaffected to acquire the necessary qualifications. In defence of theimpugned schemes, the respondents have pointed out to the factthat after the conversion of the Telecommunications Department toa public Corporation, the existing cadre of posts has been increasedas follows :
Sri Lanka Law Reports
(1993) 1 Sri LR.
Assistant Administrative Secretary from 5 to 24 posts.
Assistant Superintendent (Commercial) from 3 to 15 posts.
Administrative Secretary from 3 to 4 posts.
The Deputy Solicitor-General submitted that in the circumstances,the provision for giving due consideration to educational qualificationsin the interest of the service, is not unreasonable.
On the basis of their submissions the petitioners seek toobtain –
a declaration that the preferential treatment given to graduateclerks on the schemes of recruitment P11A and P11B isviolative of Article 12 (1) of the Constitution ; and
a declaration that the petitioners are entitled to promotion interms of the schemes of recruitment which were in forceat the time they joined the Corporation.
Assuming that the petitioners are granted the first of thesedeclarations, I am of the view that they are not entitled to the seconddeclaration for the reason that it would still be open to the Corporationto prepare fresh schemes which would not be violative of Article 12(1). The safeguard under s. 31 of Act No. 25 of 1991 that they areentitled to terms and conditions not less favourable than those onwhich they had been employed in the Department of Telecommu-nications ensure that the basic terms and conditions of theiremployment as clerks (e.g. as regards their status or emoluments)will not be reduced. That section does not preclude a variation ofthe schemes of recruitment to the higher posts. As evidenced by theschemes P2 and P3, such variations had in fact been effected evenduring their employment by the Department. Such variations whichdo not impugn on constitutional rights and are dictated by the needsof the service are permissible.
.In considering whether the schemes P11A and PT1B arereasonable, the following matters are relevant :
(a) Paragraph 16 (5) of P1 (Clerical Service Minute) dealing withpromotion to staff posts said –
SC Gunaratne and Others v. Sri Lanka Telecom and Others (Kulatunga, J.)117
"mere seniority unaccompanied by special ability to perform theduties of the higher appointment, will not be regarded as a groundof promotion".
P2 (scheme of recruitment to the post of Assistant AdministrativeSecretary/Assistant Superintendent (Commercial) provided thatin making promotions to these grades preference will be givento merit over seniority.
P3 (scheme of recruitment to the post of Administrative Secretary)provided that promotions will be made on the basis of seniorityand merit.
However, the schemes P11A and P11B have –
deleted the express requirement of special ability and meritas a principle of promotion ; and
emphasized the requirement of a specific period of servicewith preferential treatment to graduate clerks.
Under the previous scheme, clerical officers (whether graduatesor not) were eligible for promotion to the post of AdministrativeAssistant on the principle of special ability and seniority, whenevervacancies occurred. After 6 years' of service, they were alsoeligible for direct promotion to the next higher grade (viz.Assistant Administrative Secretary/Assistant Superintendent(Commercial). The new schemes require 6 years' of servicebefore they can be promoted to the post of Administrative Assistant,(such period being reduced to 2 years for graduate clerks); and8 years' service for promotion to the post of Assistant Admin-istrative Secretary/Assistant Superintendent (Commercial), (suchperiod being reduced to 4 years for graduate clerks). It wouldseem, therefore, that the new schemes, whilst giving preferentialtreatment to graduate clerks, impose more stringent conditionson others as to the requisite period of servicq for promotion thanthose provided by the previous schemes.
Possession of a degree gives a clerk a preferential- right topromotion without any consideration as to-whether such degreeis relevant to the duties of the higher post. In this connection,,it is significant that in 2R1, (the report of the Committee on
Sri Lanka Law Reports
(1993) 1 SriLR.
grievances of under-employed graduates in clerical service andallied grades in the public service, 1987) it was recommendedthat they may be considered for recruitment to certain postsin the public service "provided their educational attainments relateto the relevant field in terms of the respective schemes ofrecruitment".
In the absence of evidence as to the number of graduate clerksin the Corporation, their grades and the period of service asagainst non-graduate clerks and other relevant matters, it is notpossible to conclude that the new schemes will not bediscriminatory by reason purely of the increase in the cadre ofposts in the Corporation referred to above.
On the whole, it appears that the relevant Ministry and theCorporation have prepared the new schemes of recruitmentprimarily with the object of alleviating the social grievances ofunder-employed graduates. In doing so they have overlookedthe legitimate expectations of non-graduate clerks such as thepetitioners who have around 20-30 years’ of service. What ismore, the benefits under the new schemes have been madeavailable not only to "under-employed graduates” (viz. graduateswho have joined as clerks for want of better positions) but alsoto clerks who have obtained external degrees whilst in service.
In the result, I am satisfied that the classification of graduateclerks for preferential treatment under the impugned schemes isunreasonable because it is not based on criteria having a rationalrelation to the object sought to be achieved namely, the efficientfunctioning of the Telecommunications Service. If it is desired to givepreferential treatment to them in the interest of the service and forutilising their skills, the Corporation may do so on the basis of relevantqualifications, with reasonable notice to those affected and withoutprejudicing the legitimate expectations of clerks who are on the vergeof promotion under the previous schemes. The identification of releventqualifications, the preparation of fresh schemes of recruitment andthe period of notice to be given are matters for the Corporation todetermine, after considering the total effect of such schemes on theofficers who are presently in service and the needs of the Corporation.In the meantime, I see no difficulty in the way of the Corporationrecognising, for the purpose of promotions, any special skills which
Alwis v. Piyasena Fernando
graduate clerks may have acquired by reason of their educationalqualifications. This is possible under the existing schemes ofrecruitment which have been produced marked P1, P2 and P3.
For the foregoing reasons, I allow the application of the petitionersand grant them a declaration that the preferential treatment given toGraduate Clerks on the Schemes of Recruitment P11A and P11Bis violative of Article 12 (1) of the Constitution, and hence void. Ialso grant them one set of costs which I fix at Rs. 5,500 (RupeesFive Thousand Five Hundred) payable by the 1st respondent.
FERNANDO, J. – I agree.
WADUGODAPITIYA, J. – I agree.