INTERNAL LETTERNATIONAL SAVINGS BANK
From: Acting Deputy GeneralThro: General Manager
Interview for the Post of Regional Security Officer
I refer to the Chairman^ minute dated 03.03.1995 on the above.
The Chairman has queried as to how interview panel gave 20marks out of 25 marks to Mr. Wijesuriya for performance when he ishaving 3 advesre reports against him.
Mr. Wijesuriya was given 20 marks out of 25 marks forperformance as he is doing very satisfactory work as a SecurityOfficer, having being attached to Head Office and he also acts for theSecurity Manager when he is on leave or in the absence of theSecurity Manager.
Even responsible-wise, (re) whatever job is entrusted to him, hehas done very satisfactory work during the past years and theSecurity Manager informed us that during the curfew days he wascontinuously'in office when some others were not willing to take theresponsibility, and he worked during night and day.
Considering these, he was given 20 marks out of 25 marks.
As regards the adverse reports, he has been severely warned on11.08.1992. This is in relation to an incident that took place on25.07.1992 when an outsider has come to the main gate in his carand there had been some cross-talk between the outsider andSecurity Guard – Mr. W. L. Kottearachchi when the Security Guardwanted to check his car.
Mr. Wijesuriya had been severely warned for trying to cover up theincident that took place between the outsider and the Security Guard- Mr. Kottearachchi.
Severe warning on 30.07.92 was on account of delaying apreliminary investigation report.
The suspension of increment by three months was also on thisaccount. This increment has been subsequently paid.
For these adverse reports we have deducted 5 marks from thetotal marks.
He has been commended by the General Manager when tworobbers tried to steal parts from a motor cycle which was parked justin front of the Bank. Mr. Wijesuriya had single handedly caught these2 robbers and had taken them to the Police Station and a case hadbeen filed against these two robbers and the case is pending.
In the case of Mr. N. D. N. Q. Perera, he has been commended bythe Security Manager, when he found one of the workers working fora contractor who has undertaken some work in the premises of theBank and when leaving the Bank after work and when Mr, NevillePerera did a routine check he had found that this workman trying totake away a bundle of wire about 100 metres in length out of thepremises of the Bank.
Therefore the commendation given to Mr. Wijesuriya had beengiven in our opinion was for a more bravery act than for whatMr. Neville Perera had been commended.
Therefore Mr. Neville Perera was given only 5 marks out of the 10marks…
I seek your approval … to promote the four security officers asRegional Security Officers accordingly.
Acting Deputy General Manager
(Personnel and Administration)
9th March 1995.
However the 7th respondent made the following order thereon,dated 14/3/95:-
I find it difficult to accept the explanation offered.
Therefore, I am reluctantly compelled to reject therecommendation of the interview Board.
I am taking action to appoint a fresh Interview Board with a SeniorOfficial from the Ministry of Finance as Chairman."
The 7th respondent gave no reasons for rejecting the 2ndrespondent’s explanation.
It must be noted that, even if the 7th respondent's criticism wascompletely justified, yet the consequence was that, in regard to thepetitioner., (a) the Board should have deducted 10 marks (instead of5) for "adverse reports”, and (b) the Board should have given himonly 5 marks (instead of 10) for “commendations". If so, the petitionerwould have had a total of 67 marks (instead of 77) and would stillhave been placed first (jointly) with the 5th respondent.
Regarding the question of adverse reports and punishments, thepetitioner stated that the 3rd respondent had been given a warningon 27.12.94, for not being present at his duty point, and also formaking false entries, and that he (3rd respondent) had also beenfound guilty for the offense of absenting himself from work withoutinforming his office, for which offence he was placed on no-pay leave(p7. p7B, p7C).
With regard to the 4th respondent, the petitioner states that the 4threspondents increments had been deferred for 6 months (P8A), andthat the 4th respondent had also had a warning issued against himfor failure to perform his duties and for the negligent manner inhandling the tasks allocated to him (P8B).
With regard to the 5th respondent, the petitioner states that the 5threspondent had been warned by letter dated 5.2.81 (P9B) for notacting with responsibility and causing damage to motor bicycle 62 Sri9069. The 5th respondent had also been severely reprimanded on7.7.81 on being found guilty under Section 7(f) of the NationalSavings Bank Disciplinary Rules (P9). He (5th respondent) had alsobeen warned for neglect of duty on 29.8.81 under Section 6(a) of theNational Savings Bank Disciplinary Rules for failure to supervise themounting and dismounting of guards at 23.59 hours. The petitionermakes no mention of any adverse reports or punishments against the6th respondent.
The petitioner further states that he had authority to approve leaveapplications submitted by Security Officers. Assistant SecurityOfficers and Security Guards; that he exercised the function ofrecommending the annual increments of Security Guards attached tothe Head Office and that he was vested with the duty of preparingrosters in respect of the other security officers attached to the HeadOffice. The petitioner adds that the 3rd to the 6th respondents werevested with no such duties and had no experience in performingsuch functions. He states that taking all these factors intoconsideration, he was the most suitable candidate to be appointed tothe post of Regional Security Officer.
The other matter the petitioner complains of is that for the purposeof the 2nd interview the 1st, 2nd and 7th respondents had changedthe selection criteria and/or the scheme for awarding marks withoutprior notice to him.
The petitioner states that it was generally known in the 1strespondent Bank, that the basis for the giving of marks at theinterview would be as follows:-
Years of service in the Bank-25marks
Duties performed/work experience-25marks
Performance at the Interview-15marks
Adverse remarks- less 10 marks
In reply, the 7th respondent sets out, (in para. 7 of his affidavit),original scheme of marking used for the first interview as follows:
Performance as a Security Officer-25marks
Higher Educational Qualifications-10marks
This same scheme is set out in document 7R1 which is the reportof the panel which held the 1st Interview which was chaired by the2nd respondent.
The scheme for awarding marks as set out by the petitioner isalmost identical with that set out by the 7th respondent, except forone category, viz: where the petitioner mentions a possible maximumof 10 marks for “work performance"; whereas the 7th respondentmentions a possible maximum of 10 marks for “commendations."
However, what is important is that, as regards the first interview,the petitioner was certainly aware of the scheme and the basis ofawarding marks.
This notwithstanding, when it came to the 2nd interview, the 7threspondent states as follows in paragraph 10 of his affidavit:-
‘Answering further, I state that the 2nd interview was conducted ona pre determined criteria of a marking scheme. The basis on whichmarks were awarded were as follows:-
Special Investigations carried out-10marks
Annual grading for the past 3 years-10marks
This scheme is set out in detail in the document 7R6 produced bythe 7th respondent. The 7th respondent does not deny thepetitioner’s averment that this scheme was never published, and thathe did not have any notice of it.
Thus, on his own showing, the 7th respondent has himselfdemonstrated the significant differences between the schemeadopted for the 1st interview (which the petitioner was aware of) andthe new scheme adopted for the 2nd interview (which the petitionerwas unaware of).
On a comparison of the two schemes, it appears that several newcriteria had been introduced into the new scheme for the 2ndinterview, viz: (i) Sports,
Special Investigations carried out, and
Annual grading for the past 3 years.
The petitioner states that he had no prior notice or knowledge ofthese new criteria, and in this context, with reference to the secondinterview, states in paragraph 17 of his affidavit:
“I was not questioned on matters pertaining to securitymanagement or problems and solutions pertaining to the securityof the Bank. I was asked many irrelevant questions such aswhether I have played Cricket etc.,”
Judging by the categories in the scheme of marking as he knewand understood it, these questions on Cricket would indeed haveseemed irrelevant to the petitioner, for he was never told that thecriterion of "Sports" was relevant.
How this affected the petitioner is shown when the 7th respondentfurther stated in paragraph 10 of his affidavit: “Answering further, Istate that the petitioner had only the minimum educationalqualification at the G.C.E. (Ord. Level) Examination and had nosports qualifications" (Emphasis added).
In answer to this averment by the 7th respondent, the petitionerstates in paragraph 3(h) of his counter-affidavit, that it was quiteincorrect for the 7th respondent to state that he had "no sportsqualifications", because his certificates marked P13A and P13B hadbeen produced when he first joined the 1st respondent Bank andwere filed in his personal file. P13A is the school leaving certificatefrom the Principal of his school, Isipatana Maha Vidyalaya, whichinter alia, sets out his sports activities as follows:
Athletics – Captain, College Athletics Team, 1972
Captain Milton House Athletics Team, 1970Participated from 1966 to 1972 with colours in 1970Adjudged under 16 champion, Colombo SouthMeet in 1970
Hockey – First X1,1972
Rugby Football – Second XV. 1971
Cricket – Under 16,1968
Soccer – Member, Milton House Soccer Team, 1969
Swimming- Member, Swimming Association.
Document P13B is a certificate from the Senior Cadet Master of hisschool, which, besides his cadeting activities, where he started as aJunior Cadet in 1969 and ended up as Warrant Officer II (RegimentalQuarter-Master Sergeant) in the Senior Cadet Corps, sets out the factthat the Senior Cadet Platoon with the petitioner as its Sergeant, hadwon first place in the “Five Star Athletics Championship” in 1972. Thiscertificate also states that the petitioner was the school’s AthleticsCaptain, besides being a member of the Hockey and BasketballTeams.
The petitioner states that this remark of the 7th respondent that hehad “no sports qualifications’ only shows that the Interview Board forthe second interview had not even perused his personal file.
The petitioner further states that if he knew that 10 marks were tobe awarded for “sports”, he would have submitted his othercertificates in regard to Athletics, which he now produces with hiscounter-affidavit marked P13(c) (i) and (ii), P13D and P13E(1) and (ii).The petitioner says that he would also have submitted a certificatefrom the 3rd Batallion of the Sri Lanka Cadet Corps to the effect thathe was placed first in the Marathon and also first in Firing. He hasproduced this certificate with his counter-affidavit, marked P14.
Further, the petitioner states that although the 2nd Interview Boardhad deducted 10 marks for “Adverse reports” from the petitioner (i.e.the maximum), only 7 marks had been deducted from the 3rdrespondent whose Adverse Reports were of a more serious nature.The petitioner adds that despite the warnings he received, he waspaid bonus for the year 1992 (P17).
Another complaint the petitioner makes is that whereas the 2ndInterview Board had given him only 3 marks out of a possible 10 forhis two commendations (P10A and P10B), the 3rd respondent wasalso given 3 marks for his single commendation.
The petitioner further complains that the fact that during timeswhen a curfew was imposed he reported for work and attended to hisduties (7R2) even going to the extent of procuring the services of acook from Panadura and providing meals for the other securitypersonnel, seems to have been ignored in the process of awardingmarks, whereras, on the contrary, the 3rd respondent who was infactappointed, did not co-operate with the Management and did noteven report for duty during the period the curfew was imposed, forwhich he was punished with a warning together with a day's salarycut and the non-payment of his bonus.
The petitioner pleads that his performance as a Security Officerwas excellent; that he was the most senior Security Officer in the 1strespondent Bank, and that he was in fact performing additionalduties for which he was paid an additional Rs. 100/- per month (P11).The petitioner even states that when the Head of his Division, R. G.Gunaratne who was the Security Manager was on leave, he (thepetitioner) was assigned the task of performing the said SecurityManager's duties (P 12(a) and (b)).
Thus we see a curious situation:- On 24.2.95 one interview washeld for four posts of Regional Security Officer bases on a knownscheme of marking, and conducted by a Board consisting of ActingDeputy General Manager (Personnel and Administration) asChairman, the Assistant General Manager (Inspection) and theSecurity Manager; at which marks were awarded as follows, andrecommendations made accordingly:
77 marks67 marks63 marks63 marks
The petitioner5th respondent4th respondent6th respondent
This recommendation was not given effect to because the Chairmanof the Bank felt that the interview had not been held in a fair andimpartial manner.
Thereafter on 10.4.95 a 2nd interview was held for the selfsamefour posts, but now based on a scheme of marking containing threenew categories of which the petitioner says he had no prior notice.This interview was conducted by an entirely different Boardconsisting of a Senior Assistant Secretary of the Ministry of Finance,the Deputy Genera! Manager (Internal Audit) and a different AssistantGeneral Manager (Inspection), at which interview marks wereawarded as follows, and recommendations made accordingly:-
49 marks48 marks46 marks43 marks
4th respondent6th respondent3rd respondent5th respondent
The 7th respondent says that at this 2nd interview the petitionerwas placed 8th in order of merit with a total of only 33 marks.
This recommendation of the 2nd Interview Board was not faulted inany way by the 7th respondent, who directed that the 3rd to 6threspondents who were selected by that Board be appointed witheffect from 1.5.95.
The topsy-turvy nature of the second interview could behighlighted thus. The 4th and 6th respondents who were originallyplaced third (jointly), came first and second; the 3rd respondent whowas originally not placed at all, came third; the 5th respondent whowas originally placed second, came fourth; and the petitioner whowas originally placed first, came eighth: a drastic inversion of theoriginal result. What is more, while the 4th and 6th respondentsscored about 24% less at the second interview, the 5th respondentscored 36% less. The petitioner, however, scored 57% less. Whilstdifferences in assessment by two Boards are reasonably possible, inthis instance, the extent of the differences suggests a grave flaw.
It is noteworthy that although the 7th respondent found fault withthe original Board of Interview for not conducting the first interview ina fair and impartial manner, no action whatsoever seems to havebeen taken against any of the Members of that Board for their allegedtransgression.
In any event, the petitioner states that the only result produced bythe 2nd interview was that he (the petitioner) was replaced by the 3rdrespondent. The other three candidates who were selected at the firstinterview were selected once again at the second interview.
I have taken pains to enumerate the facts in some detail and alsoto analyse them, placing them in their proper context, so that thesituation becomes self-evident. As stated earlier, the petitionercomplains of a violation of his fundamental right to equality anddiscriminatory application of the law, and on a consideration of thetotality of the material placed before us, I cannot help but see that thepicture that emerges is one where the petitioner has been singled outfor discriminatory and unequal treatment.
The pivotal factor is the unwarranted cancellation of the firstinterview at which the petitioner was placed first in order of merit andrecommended for appointment by the Board of Interview whichconsisted of high ranking officers of the 1st respondent Bank whowere knowledgeable in the area of activity in respect of which theappointments were to be made and had all the necessary materialbefore them to enable proper assessment to be made.
The 7th respondent however, overrules the recommendation madeby the 1st Interview Board on the hazy subjective ground that he feltthat interview was not conducted in a fair and impartial manner, andcancels it.
The 7th respondent thereafter appoints a fresh Board of Interviewconsisting of at least two members (out of three) who are quiteunfamiliar with the area of work in question. One of them is a totaloutsider from the Ministry of Finance. But, this aspect, the importantfact here, which adversely affected the petitioner, was that thescheme of marking which was to be applied by the second Board ofInterview was different to the scheme earlier adopted by the firstBoard. Most significantly, although the applicants had notice of andknew the contents of the original scheme of marking, the newscheme of marking adopted by the second Board was not sonotified, and the petitioner had no knowledge or intimation of thecategories contained therin. It appears that the first time this newscheme came to be known was when the 7th respondent mentionedits contents in his affidavit in which affidavit the 7th respondenthighlighted the fact that the petitioner ‘had no sports qualifications".It transpired that “sports" was a new criterion which, together withtwo other criteria, had been added to the new scheme for theawarding of marks, and that this fact was not made knows to thepetitioner. This provoked the petitioner to produce all the materialrelating to his achievements in the field of sports in his counter-affidavit, and to state that, had he known of it before hand, he wouldhave produced all the material before the 2nd Board of Interview. Hesays that by the non-disclosure of the new scheme of marking he wasdeprived unjustly of the opportunity of presenting his qualificationsbefore the second Board, which, of course, enured to his detriment.The petitioner goes further and says that even the material regardinghis sports activities contained in his school leaving certificate givenby the Principal of his school and a second certificate given by hisCadet Master, both of which were available in his personal file wereeither seen and ignored or not looked at at all.
It has been held more than once, that it is imperative thatcandidates at interviews must be afforded equal opportunity ofpresenting their cases when facing Boards of Interview and thatone of the ways of achieving this end, is to make known inadvance the criteria to be adopted and the schemes of marking,especially when a significant change is made.
What was done in this case was against all canons of fairplay,where,not only was a competent Board found fault with and theinterview cancelled for no objectively valid reasons, but a new Boardwas appointed to conduct an interview basing itself upon a changedscheme of marking; which new scheme was not notified and was notwithin the knowledge of the petitioner.
Upon the evidence in this case, the entire responsibility for thissituation especially on his own admission in his affidavit, lies on the7th respondent, and I have no hesitation in holding that the 7threspondent has been responsible for the violation of the petitioner'sfundamental right enshrined in Article 12(1) of the Constitution,insamuch as he has been singled out of the treatment set out above.
The 3rd and 4th respondents have also filed affidavits which I haveconsidered; but, they do not alter the situation or mitigate the gravityof the violation.
that interview. Second, even if it were assumed that there were thesedefects, they were of no significance in the circumstances of thiscase, because they would have resulted in reducing the petitioner'saggregate by not more than 10 marks,and he would still have beenthe first. Third, if the 7th respondent’s real concern was that thatinterview had not been conducted “in a just and impartial manner",there was no justification for an unpublished alteration of the criteriafor the second interview, and that alteration suggests an impropermotive. Fourth, apart from the serious defect in introducing newcriteria, those criteria were not fairly and properly applied at thesecond interview: not only was the petitioner denied the opportunityof producing information regarding the criteria of “Sports” – becausehe was not told of its relevance – but even the information available inthe petitioner’s personal file was ignored. Similarly, the criteria inregard to “commendations" and 'adverse reports” were not uniformlyapplied as between the petitioner and the 3rd respondent, to theadvantage of the latter.
Thus, the second interview was fatally flawed, and must bequashed. The first interview was duly held, and the 7th respondentmisused his discretion and acted arbitrarily and unreasonably incancelling it; that order cannot stand.
While it is true that a Board of Interview generally lacks theauthority to make appointments, yet its findings cannot be arbitrarilyset aside. Consequently, the assessment and recommendation of thefirst Board of Interview must stand, and the 1st and 7th respondentsmust give effect to it. I make order accordingly, and also declare thesecond interview to be invalid and of no effect. The appointments ofthe 3rd. 4th, 5th and 6th respondents made by the 7th respondent inconsequence of such second interview are also invalid and arehereby cancelled.
(1997) 1 SRI L.R. – PART 4
SUPERINTENDENT OF PUSSELLA STATE PLANTATION, PARAKADUWAV. SRI LANKA NIDAHAS SEVAKA SANGAMAYA- SC 86/95
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‘G. P. S. de Silva C.J." should read as “Kulatunga, J.1'
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“G. P. S. de Silva C,J." should read as "Kulatunga, J,"
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"Kulatunga, J." should read as "G. P. S. de Silva C.J.”