JANAPRIYA v. SRI JAYAWARDENAPURA GENERAL HOSPITAL AND OTHERS

030-SLLR-SLLR-2003-1-JANAPRIYA-v.-SRI-JAYAWARDENAPURA-GENERAL-HOSPITAL-AND-OTHERS.pdf


sc
Thiranagama v Madihahewa, Commissioner-General of Labour
and others (Edussuriva. J.)
243
JANAPRIYA
v.SRI JAYAWARDENAPURA GENERAL HOSPITALAND OTHERS
SUPREME COURTG P S DE SILVA, CJ.KULATUNGA, J., ANDRAMANATHAN, J.
SC APPLICATION 531/9217th NOVEMBER, 1993
Fundamental Rights – Sri Jayawardenapura General Hospital (SJGH) -Eligibility for appointment as a Consultant Surgeon – Appointment of a doctorserving on contract or in acting capacity without advertisement – Whether PostGraduate Institute of Medicine (PGIM) certificate of a candidate's foreign qual-
244
Sri Lanka Law Reports
[2003] 1 Sri L.R
ification is a condition of eligibility to appointment – Article 12(1) of theConstitution.
The petitioner, a doctor employed at the General Hospital, Galle as aConsultant Surgeon challenged a direction of the Minister of Health dated27.71992 given to the SJGH Board under section 9 of the SJGH Board Act,No. 54 of 1983 to interview without advertisement eight candidates who hadresponded to an advertisement in 1986 for appointment as a ConsultantSurgeon at SJGH. That direction was supported by two orders of the Court ofAppeal against the SJGH, the advice of the Attorney General and the servicerecord of the 2nd respondent (Dr. D.D. Ranasinghe) at the SJGH.
The aforesaid eight candidates included the 2nd respondent who was func-tioning as the Resident Surgeon at the SJGH since 1984 and who had alsobeen appointed as Acting Consultant Surgeon for a few months in 1985 and in1991 when the post of 3rd Consultant Surgeon became vacant.
Both the petitioner and the 2nd respondent had foreign qualification includingFRCS (Edin.) and FRCS (Eng.) whilst the 2nd respondent had additional expe-rience in surgery and academic experience acquired in England during severalyears. He also had a record of service at the SJGH from 1984-1991 as ResidentSurgeon and as acting 3rd Consultant Surgeon whenever that post fell vacant.
The petitioner claimed that he was eligible to apply for the post of ConsultantSurgeon from June 1988.
The post of Consultant Surgeon was advertised in 1984, 1986 and 1987. The2nd respondent was called for an interview on each such occasion. However,the SJGH Board,-the Government Medical Officers Association (GMOA) and theAssociation of Medical Specialists of Ceylon (AMSC) challenged the eligibility ofthe 2nd respondent on the ground that he lacked certification of his foreign qual-ification under the PGIM circular No. 1389 dated 20.09.1979 whereas the othercandidates including the petitioner had obtained such certification. At each inter-view the SJGH Board disqualified or attempted to disqualify the 2nd respondentfor appointment to the permanent post of Consultant Surgeon on the ground thathe lacked PGIM certification which according to legal opinion was not anabsolute necessity at the SJGH which was established by Act, No. 54 of 1983.
Held:
The 2nd respondent is qualified for the post of Consultant Surgeon,SJGH.
Even though the counsel for the petitioner submitted that the petitioner’sgrievance was the failure to advertise the vacancy of the 3rd ConsultantSurgeon in 1991 all parlies concerned including the SJGH Board dis-
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunaa. J.)
245
criminated against the 2nd respondent for lack of certification under thePGIM Circular 1389 dated 20.09.1979 which circular had been declaredviolative of Article 12(1) of the Constitution and ultra vires by the SupremeCourt in Weligodapola v Secretary, Ministry of Women Affairs.
Per Kulatunge, J.
“It seems that the salutary guidelines laid down by the Weligodapola Case(supra) have had no effect”
There is unfairness in the process of selecting persons for appointmentto posts and lack of clearly formulated schemes of recruitment in theSJGH for the appointment of medical specialists.
The conduct of the SJGH Board led to victimization or the breakdownof morale within the Institution.
The petitioner had failed to establish an infringement of his rights underArticle 12(1) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
Cases referred to:
Weligodapola v Secretary, Ministry of Women’s Affairs (1989) 2 SRI LR
63
Gunasinghe v Sri Jayawardenapura Hospital Board SC Application No.55/92 SCM 22.7.93
E.D. Wickremanayake with Sanatha Jayatilake and A. Cooray for petitioner.
Faisz Musthapha, PC., with Mahinda Relepanawa, Mahanama de Silva andAmarasiri Panditharatne for 2nd respondent.
Asoka de Silva Deputy Solicitor General for 1 st, 3rd and 4th respondents.
Cur.adv.vult
January 12, 1994
KULATUNGA, J.
By this application, the petitioner seeks to challenge thevalidity of a direction dated 27.07.92 (Exhibit A) given by the theSecretary, Ministry of Health and Women’s Affairs (3rd respondent)to the Board of Management of the Sri Jayawardenepura
246
Sri Lanka Law Reports
[2003] 1 Sri L.R
Government Hospital (the 1st respondent) to make an appointmentto the post of 3rd Consultant Surgeon of that Hospital by interview-ing the applicants who had responded to the advertisement dated11.06.86 (Exhibit B). It is the petitioner’s position that the vacancysought to be filled by the proposed appointment arose in or about1991; that as such the post should be readvertised; and that thedirection to make an appointment without such advertisement hasdeprived the petitioner of the opportunity of applying for the saidpost in violation of his right to equality guaranteed by Article 12(1)of the Constitution.
THE PETITIONER’S CLAIM
The petitioner states that he obtained the degree of MBBS(Cey.) 2nd Class Honours, with a distinction in Gynaecology andObstetrics in 1972. He then obtained his FRCS (Primary) in 1974at an examination held in Sri Lanka. He served in Sri Lanka in theDepartment of Health Services from October, 1972 to July 1978when he obtained LRCP – MRCS in December 1978, FRCS (Edin)in 1979 and FRCS (Eng.) in 1981. He then returned to Sri Lankaand served at various hospitals and is presently serving asConsultant Surgeon, General Hospital, Galle (Teaching) and is aVisiting Lecturer at the Faculty of Medicine (of the RuhunaUniversity) Galle. He states that having served for a continuousperiod of 7 years in the Department of Health after having obtainedhis foreign qualifications he is qualified as from June 1988 to applyfor the post of Consultant Surgeon at the Sri JayawardenepuraGeneral Hospital. The petitioner expected the vacancy in the saidpost to be advertised. As this has not been done in view of theimpugned direction, the petitioner prays for a declaration that thesaid direction is violative of his rights under Article 12(1) of theConstitution and for a direction to the 1st respondent to readvertisethe post calling for applications from persons who are eligible forappointment.
THE 2ND RESPONDENT’S CLAIM
The 2nd respondent also claims to be qualified for appoint-ment to the post of 3rd Consultant Surgeon, Sri JayawardenepuraGeneral Hospital. He is presently the Resident Surgeon at theSJGH having been appointed to that post on contract on 18.12.84.
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunga, J.)
247
His contract has been extended every three years. He has alsoserved as Acting Consultant Surgeon at the SJGH from 02.05.85until July that year and was again appointed to act in that post whenit became vacant in 1991. Out of the applicants who are qualifiedto be interviewed in terms of the impugned direction the 2ndrespondent alone has been made a party to this application, pos-sibly for the reason that the 2nd respondent is perhaps thestrongest contender among those applicants to the post of 3rdConsultant Surgeon.
The 2nd respondent proceeded to Moscow prior to 1971, formedical studies on a government scholarship and obtained M.D.(Hon) Class 1 from the People’s Friendship University in Moscow.His foreign specialist qualifications are FRCS (Edin) October, 1976and FRCS (Engl.) November, 1976. He acquired clinical experi-ence in general surgery having served in leading hospitals inEngland between 1971 to 1979. On his return to Sri Lanka heserved as Resident Surgeon, General Hospital, Colombo from15.08.79 to 20.12.80. His foreign surgical experience includes vas-cular surgery, plastic surgery, thoracic surgery, genito urinarysurgery and renal transplant surgery. In 1981 he ceased to be inGovernment Service by overstaying his leave abroad; and from01.02.81 to 30.11.83 he served as Registrar, Ipswich GeneralHospital, U.K. and was involved in facio maxillary and ENT surgery.From 01.12.81 to 30.11.83 he held the post of Registrar andClinical Tutor in Surgery at St. James University Hospital Leeds,U.K. He also obtained DLO (Res.Eng.) in November, 1983.
The above record appears in exhibits ‘C’,‘D’ and ‘G’ filed withthe petition. There is also the document 2R16 which is a letterdated 16/23 September, 1992 sent by the Registrar North ColomboMedical College to the 2nd respondent as “Consultant Surgeon SriJaywardenepura General Hospital” requesting him to accept 18students to do two months clinical work in surgery.
CAUSE OF THE DISPUTE
The petition and in particular Exhibit ‘K’ indicate that the peti-tioner and his Trade Union, The Medical Officers’ Association insistthat the post in dispute be advertised; and it is the implication of theavailable material that they take up the position that the appoint-
248
Sri Lanka Law Reports
[2003] 1 Sri L.R
merit should strictly conform to the requirements of the CircularNo. 1389 dated 20.09.79 on the subject of Post-Graduate Instituteof Medicine (Exhibit ‘H’). They appear to contend that the petition-er is qualified for appointment under that circular whilst the 2ndrespondent is not qualified.
Circular No. 1389 issued by the Secretary, Ministry of Healthannounced inter alia as follows:
Para (1)
No Foreign Primary Examination may be held in Sri Lankaafter 01.01.1980.
Para 2(a)
Post-Graduate examinations of the Institute will be held from1980 leading to the M.D. or M.S. degrees in the respectivespecialities.
Para (4)
Those medical officers who have passed Primary Part I offoreign examinations will be permitted to go abroad on no-pay study leave to complete the final examinations on aphased programme.
Para (5)
MedicMl officers who have the Foreign Primary Part IExamination could sit the final examination of the Institute,jDrovided they have the requisite training and will on suc-cessful completion of the examination be found assignmentsfor further training upto one year in selected institutionsabroad, by the Ministry.
Para (6)
Officers who have obtained full qualifications and have over-stayed their periods of leave abroad, will be entitled to havetheir qualifications recognised for appointments to pbsts ofSpecialists in the Department of Health, provided they returnto the Island before 01.01.1980.
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunga. J.)
249
Para (7)
Medical Officers who have been sent abroad by theDepartment on no-pay study leave will be entitled to havetheir qualifications recognised for appointment for posts ofSpecialists in the Department, provided they return within thestipulated period of leave.
Para (8)
: Subject to (6) and (7) above, with effect from 01.01.80, qual-ifications of the local Post-Graduate Institute of Medicine willbe given definite preference in appointments to the posts ofSpecialists in the.Department, including Teaching Hospitals.
CLAIMS OF THE PETITIONER AND THE 2ND RESPONDENTWITH REFERENCE TO THE PGIM CIRCULAR
The petitioner is presumably claiming to be qualified underpara (7) above on the assumption that this circular applies toSJGH. The 2nd respondent's position is that SJGH was establishedby the Sri Jaywardenepura Hospital Board Act,; Noi54 of1983,S.7(2)(c) of which empowers the Board to appoint andemploy officers and servants of the said hospital and to make rulesregarding.their appointment etc.; that as such the SJGH is not gov-erned by the same rules applicable to other Teaching Hospitalscorning- .under the Ministry of Health & Women's Affairs; thatnotwithstanding a settlement in the Court of Appeal that he is eligi-ble for;the post o.f Consultant Surgeon, the previous Board ofManagement of the Sri Jayawardenepura General Hospital exclud-ed him from being selected for that post on the ground that helacked',PGIM'Board certification; that the material placed beforethis Gourt by the petitioner establishes that it is not the.petitioner'sbutthe2nd respondent's rights under Article 12(1) which have beenviolated; that the impugned directive was given to grant’a.measureof relibfTp the 2nd respondent who has a legitimate grievance byreason :<pf being unlawfully disqualified from being considered forappointment to the post of Consultant Surgeon. The 2nd respon-dent1'further,states that on 11.08.92 the SJGH Board held an inter-view5 incompliance with the said directive.
250
Sri Lanka Law Reports
[2003] 1 Sri L.R
The 1st and 3rd respondents have taken up the position thatthe 1st respondent acted lawfully in complying with the impugneddirective given by the Minister of Health & Women's Affairs on legaladvice received from the 4th respondent (Attorney-General)
THE FACTS
APPOINTMENT OF 1ST & 2ND CONSULTANT SUR-GEONS
According to the Minutes of the Board of Management of theSJGH held on 07.03.84 at the office of the Ministry of Women'sAffairs & Teaching Hospitals (Exhibit 2R11) it was decided that thequalifications for the post of Consultant in Surgery would be –
FRCS +7 years post graduate experience or M.S.(Colombo)with PGIM Board certification + 5 years post graduate expe-rience.
On 21.07.84 the said post was advertised in the “CeylonDaily News” (2R2) The qualifications therein set out are:
“As acceptable to the Teaching Hospitals in the Ministry, pref-erence will be given to those already holding Consultant posi-tions”.
At an interview held on 01.01.84 Dr. K.Yogeswaran and Dr.S.A.W. Gunawardena were apponted to fill two posts ofConsultant Surgeon with effect from 01.12.84. The 2nd respon-dent who also applied for the post did not come within the firstfour who were short listed for selection out of 31 applicants. Athird vacancy was not filled as the hospital was not fully function-al. However, on 18.12.84 the 2nd respondent was appointedResident Surgeon, on contract. (II)
(II)2ND INTERVIEW FOR APPOINTMENT OF (3RD) CON-SULTANT SURGEON
On 11.06.86 the post of 3rd Consultant Surgeon was adver-tised, the requisite qualifications being the same as in the 1984advertisement. The interview was held on 11.07.86. The interviewBoard consisted of 3 members but on the morning of 11.07.86 thethen Chairman of the Board of Management of the SJGH added a
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunaa, J.)
251
4th member allegedly to ensure the selection of a particular appli-cant for appontment, namely, Dr. Rodrigo. However, two membersvoted for Dr.Rodrigo whilst two members voted for the 2nd respon-dent. In the result, no appointment was made.
DR.RODRIGO'S REPRESENTATIONS
Dr. Rodrigo (who is a Consultant Surgeon attached to theColombo North General Hospital) sent two letters, namely a letterdated 13.07.86 addressed to the Chairman, the SJGH Board (2R5)and a letter dated 04.08.86 addressed to the Minister of Women'sAffairs & Teaching Hospitals (2R6) canvassing that he be appoint-ed to the post of 3rd Consultant Surgeon as he alone is qualifiedwhilst the 2nd respondent is not qualified for want of M.S. Sri Lankaand Board Certification by the PGIM which he submitted were therequisite qualifications for that post.
THE VIEWS OF THE MINISTRY
In response to 2R6, the 3rd respondent addressed a letterdated 26.08.86, to the Chairman, SJGH Board (2R7) in which the3rd respondent made the following points:
Dr. Rodrigo has canvassed his own selection to the postof 3rd Consultant Surgeon which conduct constitutes adisqualification for appointment to a post in the publicservice.
The question of the 2nd respondent's qualification forthe post does not arise as he holds the position ofResident Surgeon which position was filled from appli-cants who responded to the 1984 advertisement for fill-ing vacancies in the post of Consultant Surgeon; andthe Chairman of the SJGH Board had in his first annualreport highly commended the 2nd respondent for hiswork and recommended that he be confirmed in hispost.
According to legal opinion the PGIM qualification is notan absolute necessity.
In any event, the SJGH should adopt the policy followedin the Ministry of automatically promoting Resident
252
Sri Lanka Law Reports
[2003] 1 Sri L.R
Surgeons to Consultant status which would help inbuilding up a team with an identity and commitment tothat hospital. If there are no such career prospects, itwould only contribute to the brain drain that the govern-ment is keen to reverse.
The Ministry therefore believed that the Chairman wouldmake a fair presentation of the 2nd respondent's case tothe Board.
The letter 2R7 was marked urgent and sent by hand.
DECISION OF THE SJGH BOARD – 2ND RESPONDENT'SAPPLICATION TO THE COURT OF APPEAL
Had the SJGH Board heeded 2R7, the 2nd respondent mighthave been appointed to the post of the 3rd Consultant Surgeon onthe basis of the interview held on 11.07.86. However, the Boardappears to have been of a different mind for it held a meeting on26.08.86 itself and after considering the letters written byDr.Rodrigo and the 3rd respondent, decided to readvertise the postafter stating the conditions of eligibility.
Consequently, the 2nd respondent filed application No.CA1087/86 (Exhibit ‘D’) in the Court of Appeal praying for writs of cer-tiorari and mandamus against the Board alleging that the Boardwas seeking to amend the rules to render him ineligible for the post.
SETTLEMENT IN THE COURT OF APPEAL
At the hearing of the application before the Court of Appeal,the dispute was settled on 22.01.87. In terms of this settlement asamended on 06.02.87, parties agreed as follows:
“The 1st respondent Board will make an appointment to thepost of 3rd Consultant Surgeon, without advertising the saidpost on the basis of the advertisement marked ‘B’ dated11.06.86, after interviewing the following eight applicants aseligible”
The applicants referred to in the settlement include the 2ndrespondent. The 2nd respondent undertook not to canvass beforeCourt the appointment which would.be made in terms of the. saidsettlement but reserved his right to proceed administratively, if so
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunga. J.)
253
advised. In view of the settlement, the application was withdrawnand it was dismissed (Exhibits 2R8 & 2R9).
MINISTER'S DIRECTION
On 17.02.87 the Minister of Women's Affairs & TeachingHospitals gave a direction to the SJGH Board in terms of S.9 of theAct to fill the vacancy of 3rd Consultant Surgeon by promoting itseligible resident staff thereby ensuring the principle of recruitingpersons to Consultant positions in the ratio of two persons from out-side the hospital to one person within the hospital (Exhibit 2R10).Had this directive been complied with the 2nd respondent wouldhave been appointed to the post. However, on 10.03.87 theMinister withdrew the said directive on representations made by theBoard that implementing it might amount to a failure to comply withthe Court order dated 22.01.87.
THIRD INTERVIEW FOR APPOINTMENT OF
CONSULTANT SURGEON
On 21.03.87 the Board held an interview. Only five of theoriginal eight applicants attended it. At the preliminary discussionsthe Board ruled out the 2nd respondent and two other applicants asbeing “unsuitable”. The discussion proceeded on the “merits” of Dr.Rodrigo and Dr. Premaratne and the latter was selected for appont-ment by a majority decision (Exhibits 2R12, 2R13). (IX)
(IX)2ND RESPONDENT'S COMPLAINT TO THE
MINISTER
■… In November, 1989 Dr. Premaratne proceeded to the UnitedKingdom for one year, on no pay study leave. He did not resumeduties thereafter with the result that the post of 3rd ConsultantSurgeon became vacant. In the meantime the 2nd respondent had■been unhappy with the selection made on 21.03.87. In view of theterms of the settlement 2R8 wherein he had undertaken to limit hisrights to proceed administratively he complained to the Minister byhis letter dated 16.12.89 (Exhibit G). The 2nd respondent com-plained that despite the undertaking given in Court and notwith-standing the Ministry directive 2R10 the SJGH changed the rulesand deprived him of his promotion.
254
Sri Lanka Law Reports
[2003] 1 Sri L.R
APPOINTMENT OF JAYALATH COMMITTEE – ITS
REPORT
The SJGH Board at its meeting held on 20.12.89 discussedthe above representations made by the 2nd respondent and decid-ed to request the Minister to appoint an independent person toascertain the facts. The Minister appointed Mr. D.G.Jayalath(retired Judge of the Court of Appeal) who conducted an exhaus-tive inquiry and submitted his report dated 17.06.91 (Exhibit C). Mr.Jayalath reached the following conclusions:
That the 2nd respondent was entitled to preference inappointing the 2rd Consultant Surgeon, in view of theMinistry derective 2R10 though it was later withdrawn.
That it has been established beyond reasonable doubtthat the management of the SJGH had, at the stage ofthe 2nd interview, introduced, the PGIM Board certifica-tion as a qualification for the post to exclude the 2ndrespondent and some others from being selected.
That at the 3rd interview the management also erred ininsisting on the principle of ‘merit’ alone as against theprinciple of ‘merit’ and service: and that the said inter-view was not conducted in a just and fair manner andwas violative of the Court of Appeal settlement in caseNo. 1087/86.
On the lawfulness of insisting on the PGIM qualifications, Mr.Jayalath cited the decision of this Court in Weligodapola v.Secretary Ministry of Women's Affairs0) where it was held by themajority that the circular 1389-(Exhibit H) is violative of Article 12(1)of the Constitution and is ultra vires, bad and of no force or avail.Fernando, J.was of the view that it was only ‘pro tanto’ void.
ATTEMPT TO IMPLEMENT JAYALATH REPORT –
PROTEST BY THE GMOA
On 08.08.91 the Attorney-General gave his opinion to theDirector General of Health Services wherein he referred to the find-ings contained in Mr.Jayalath's report and advised that the saidreport be forwarded to the SJGH Board with a direction of theMinister under S.9 of the Act to hold a fresh interview of the origi-
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunaa. J.)
255
nal eight applicants including the 2nd respondent who were eligibleon the basis of the advertisement on 11.06.86 and to make anappointment bearing in mind the conclusions of Mr.Jayalath(Exhibit 3R1).
It would appear from the minutes of a meeting of the SJGHBoard held on 18.12.91 (2R18) that the Ministry had instructed theBoard to hold a fresh interview for the original applicants and thiswas fixed for 15.10.91. However, the GMOA and the Association ofMedical Specialists of Ceylon by their letters addressed to theMinister, protested against it; whereupon the Ministry instructedthat the interview be postponed, pending further discussions andclarifications from the Attorney-General. The interview was accord-ingly postponed.
2ND RESPONDENT SEEKS RELIEF FROM THE COURT
OF APPEAL
On 12.11.91 the 2nd respondent filed a petition seeking toreinstate the Court of Appeal Application No. 1086/86 on theground that the SJGH Board had failed to honour the settlementdated 22.01.87. The petition recites the facts relating to theappointment of the 3rd Consultant Surgeon and alleges that as itis evident from a news report appearing in the “Daily News” of
the Ministry had agreed to call for fresh applications forthe post, acting under the pressure brought to bear on the authori-ties by the GMOA and the AMSC against the interview fixed for
The petitioner sought a direction on the SJGH Board tocomply with the settlement dated 22.01.87 (Exhibit 1)
UNDERTAKING B Y THE BOARD TO HONOUR THE ORIG-INAL SETTLEMENT
On 13.01.92 the Board represented by an Additional SolicitorGeneral gave an undertaking to the Court that the Board was pre-pared to give effect to the settlement arrived at on 22.01.87 asamended on 06.02.87. In view of this undertaking, the 2nd respon-dent moved to withdraw the application for relisting, which wasallowed and the application was accordingly dismissed (Exhibit J).
256
Sri Lanka Law Reports
[2003] 1 Sri L.R
GMOA RENEWS ITS DEMANDS
On 04:06.92 a meeting chaired by the Minister of Health &Women's Affairs was held at which the representatives of theGMOA, the SJGH Board and officials were present. According tothe minutes of that meeting (K) the Secretary GMOA requested thatthe post of 3rd Surgeon SJGH be advertised. The Minister agreedto consult the Attorney^General in the matter and to act on hisadvice. The minutes also recorded a statement by the Chairman ofthe SJGH Board that neither the Chairman nor the Board gaveinstructions to the Attorney-General that the Board (as respondentin the Court of Appeal) was prepared to give effect to the settlementdated 22.01.87.
ACTION BY THE MINISTRY
On 27.07.92 the 3rd respondent conveyed to the 1st respon-dent's Board the impugned direction to interview the applicants whoresponded to the previous advertisement. The direction adds thatthis is to give effect to the settlement arrived at, in regard to the postof 3rd Surgeon SJGH. As stated at the beginning of this judgment,(according to the 2nd respondent) an interview was held on11.08.92; but no appointment appears to have been made pre-sumably in view of this application.
SUBMISSIONS OF COUNSEL
Learned Counsel for the petitoner submitted that the Courtsettlement dated 22.01.87 was complied with and the said settle-ment was exhausted with the appointment of Dr. Premaratne afterthe interview held on 21.03.87; that as per Board minutes 2R13 the2nd respondent and two other applicants had been excluded asthey were unsuitable; hence it is not correct to contend that theywere excluded for want of the PGIM qualifications; that as such theproceedings of the interview held on 21.03.87 could not have beenlegally challenged in CA Application No.1087/86 as late as 1991;that the present vacancy arose in 1991 and hence it should beadvertised; and that the rights of the petitioner to be considered forappointment are not affected by the second settlement between the2nd respondent and the SJGH Board, reached on 13.01.92.Counsel also drew our attention to the statement of the Chairmanof the SJGH Board, in Exhibit K that the Board had not given
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunga. J.)
257
instructions to the Attorney-General to enter into the said settle-ment. He therefore, argued that the directive to make an appoint-ment without advertising the post violates the petitioner's right toequality under Article 12(1) in that the petitoner who is also quali-fied to apply for the post is unreasonably deprived of the right to beconsidered for appointment.
Learned Counsel for the 2nd respondent submitted that thepurpose of the impugned direction is to remedy an injustice com-mitted against the 2nd respondent by the previous management ofthe SJGH who under the pretence of implementing a Court settle-ment, summarily deprived him of the appointment on the groundthat he lacked the PGIM Board certification. Counsel conceded thatthe normal procedure for making an appointment should be afteradvertisement and that the right of an individual who is qualified toapply for a post cannot be taken away by a Court settlement towhich he is not a party. He however, argued that here there is nodiscrimination against the petitioner because it is the 2nd respon-dent who has been discriminated against by being unfairly deprivedof an appointment. The impugned directive was given not capri-ciously or arbitrarily but after a full inquiry and on the advice of theAttorney-General for ensuring that the 2nd respondent's funda-mental rights are assured. In short, the petitioner and the 2ndrespondent are not similarly circumstanced and hence there is nodiscrimination which attracts Article 12(1).
CONSIDERATION OF THE CASE
The bulk of the relevant material has been placed before usby the 2nd respondent. Some of this material is very vital but it wasnot produced by the petitioner. There is thus some justification forthe 2nd respondent's complaint that the petitioner has failed toplace before this Court the accurate facts and has arranged thefacts in such a way as to suit his application.
From the facts set out by me it is clear that the 2nd respon-dent is qualified for the post of Consultant Surgeon. If he is notqualified, he could not have been summoned for three interviews;he could not have been appointed to act as Consultant Surgeon forin the public service a person can be appointed to act in a post onlyif he is in all respects qualified for appointment to the post in terms
258
Sri Lanka Law Reports
[2003] 1 Sri L.R
of the approved Scheme of Recruitment (Cap. 11 13:1:2 of theEstablishments Code). I have to assume that this principle appliesto the SJGH. Neither the petitioner nor the 2nd respondent hasobtained MS (Sri Lanka). They are both relying on their foreignqualifications except that the petitioner appears to contend that hesatisfies the requirement of para 7 of circular 1389 (Exhibit H)whereas the 2nd respondent is not so qualified, on the basis of hisforeign qualification.
Counsel for the petitioner himself did not challenge the 2ndrespondent's claim for want of the PGIM Board certification. Hissimple complaint is that the proposed appointment without adver-tisement is an infringement of Article 12(1). However, the PGIMBoard certification requirement has been used throughout to dis-qualify the 2nd respondent. It is there in 2R12 and 2R13 whichshow that the SJGH Board considered that the PGIM Board certifi-cation is a requirement for Consultant positions. The notes of inter-view (2R12) and the Board decision (2R13) make this very clear. Itis there in Dr. Rodrigo's representations 2R5 and 2R6. It is also theconclusion of Mr. Jayalath, after an exhaustive inquiry that theSJGH Board considered that the PGIM qualification is a pre-requi-site to all specialist posts. Even as late as 04.06.92, the record ofdiscussions between the Minister and the GMOA shows that theGMOA considered that the PGIM Board certification is a must.
It seems to me that the salutary guidelines laid down by theWeligodapola's case (supra) have had no effect. There the majori-ty of the Court held that the PGIM Circular 1389 is ultra vires. It heldthat the State is entitled to lay down conditions of efficiency andother qulifications for securing the best service, and when it doesso this Court will not insist that the classification is scientifically per-fect and logically complete. The Court held that the classification ofdoctors with foreign qualifications provided for in paras 6 and 7 ofthe circular violates Article 12(1) and that the circular is ultra vires,bad and of no force or avail. Fernando, J. who held that the circu-lar was only ‘pro tanto’ void said:
“Paragraphs 6 and 7 (of the circular) conclusively establishthat those foreign qualifications are fully recognised, and thatno preference will be given to persons having local PGIMqualification vis-a-vis persons having aforesaid foreign quali-
sc
Janapriya v Sri Jayawardenapura General Hospital
and others (Kulatunga. J.)
259
fications and falling within the ambit of those paragraphs.Further, it would be a legitimate management practice,designed to improve motivation and to retain staff, to have apromotional scheme based on internal promotions only (orgiving preference to, or reserve a quota for, those already inservice), even though this may result in the exclusion of bet-ter qualified persons. A policy of insisting upon appointmentof an “outsider” as being the best qualified person, regard-less of other factors, may sometimes result in a deteriorationof morale among (and even loss of) staff already in service,with a consequent decline in the overall efficiency of the insti-tution”
One would have expected that after the decision in theWeligodapola case (supra) the uncertainty and the caprice thatwas associated with the enforcement of the PGIM certificationrequirement for appointment of medical specialists would haveceased. The instant case shows that instead, the arbitrary insis-tence on the strict application of this requirement has been contin-ued, leading to victimization or the break down of morale. It alsoappears that there is unfairness in the process of selecting personsfor appointment to posts, which situation is partly attributable topressures being applied by interested groups. The extent to whichthe authorities are affected by such pressure groups is demon-strated by the fact that at the meeting with the GMOA on 04.06.92,the Chairman of the SJGH said that neither he nor the Boardinstructed the Attorney-General to enter into the Court settlementon 13.01.92, which statement is plainly incredible.
What is more, there appears to be a lack of clearly formulatedschemes of recruitment in the SJGH which are published and freelyavailable, resulting in uncertainty as to the requisite qualifications forthe appointment of Medical Specialists. Thus in Gunasinghe v. SriJayawardenepura General Hospital Board2) the Court had to inter-pret a number of documents for ascertaining the applicable qualifica-tion for the post of Consultant Cardio Thoracic Surgeon as being“M.S.Surgery majoring in that branch”. This is not a requirement con-tained in a service minute at the SJGH but in Gazette No. 662/11 of17.05.91 providing for rules for medical personnel of the GovernmentHealth Services. The Court held it to be applicable to the SJGH on the
260
Sri Lanka Law Reports
[2003] 1 Sri L.R
ground that the SJGH Board had earlier acquiesced in Health Servicerules regarding minimum qualifications for a Consultant appointment.The petitioner was the Resident Cardio Thoracic Surgeon at theSJGH. he had excellent foreign qualifications and a high standard ofwork and experience. He was interviewed and selected for appoint-ment as Consultant CTS but (on a protest by the GMOA), the Ministerdirected the Board to readvertise the post. Consequently, anotherdoctor who had the PGIM Board certification was appointed to thepost. The Court dismissed the petitioner's challenge to that appoint-ment. The judgment makes no reference to Weligodapola's case(supra).
CONCLUSION
I am of the opinion that on the material before us the peti-tioner has failed to establish that his rights under Article 12(1) havebeen infringed. The application is accordingly dismissed with costsin a sum of Rs. 3500/- payable by the petitioner to the 2nd respon-dent. It is hoped that the authorities will take steps to put an end tothe several anomalies in the appointment of Medical Specialistsreferred to in this judgment.
G.P.S. DE SILVA, C.J.-I agree.
RAMANATHAN, J.-I agree.
Application dismissed.