024-SLLR-SLLR-1995-2-JAYAWEERA-V.-NATIONAL-FILM-CORPORATION.pdf
120
Sri Lanka Law Reports
[1995] 2 Sri L.R.
JAYAWEERA
v.
NATIONAL FILM CORPORATION
SUPREME COURTG. P. S. DE SILVA, C.J.
KULATUNGA, J„
RAMANATHAN, J.
S.C. APPLICATION 119/93
(WITH S.C. APPLICATIONS NOS. 120 -144/93)
Constitutional Law – Article 126 of the Constitution – Time Bar – Relevant date forcomputation of time.
The Petitioners were employed by the respondent Corporation. On 24.9.90 theCorporation called for applications for promotion to Grade IV, V A and V B. ThePetitioner and the others were interviewed on 20.10.90 and 27.10.90. On 30.10.90the Corporation published a list of the Names of the Promotees. Letters ofappointment dated 29.10.90 were given to the promotees. The petitionersappealed to the Chairman of the Corporation, and he on 7.12.90 replied that nouseful purpose will be served by forwarding their representations to the Presidentand the Minister. On further appeals, the Secretary to the Minister was appointedto hold an inquiry. On 1.2.93 the Chairman confirmed the impugned promotionsand decided to pay the increments of the promotees which had been withheldpending inquiry. These applications under Article 126 were filed on 22.02.93.
A preliminary objection was taken that the claims of the petitioners are timebarred.
Held:
The impugned appointments were published on 30.10.90. The promoteeswere issued with letters of appointment dated 29.10.90. They were not informedof any suspension of those appointments; hence at the conclusion ofadministrative inquiries in 1993, they were paid all increments of salary which hadbeen withheld.
In the circumstances, the alleged violation of rights occurred in October 1990;pursuit of administrative remedies does not interupt the time limit of one month;hence the Petitioners applications are time barred.
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Cases referred to:
Gamaethige v. Siriwardane -1988 1 SLR 384.
Wijenaike v. Air Lanka Ltd. -1990 1 SLR 293.
• APPLICATION for infringement of the Fundamental Right of Equality.
R. K. W. Goonesekera for Petitioner.
Asoka de Silva, D.S.G., for 1-4 Respondents.
L.C. Seneviratne, P.C. with Ronald Perera for 5. 6, 8,-28th and 27th-35thRespondents.
Cur. adv. vult.
August 04, 1995.
KULATUNGA, J..
Of consent the above application and applications Nos. 120 to144/93 were heard together. Counsel agreed that the decision hereinwill determine all the applications.
A preliminary objection was raised against these applications onthe ground that the claims of the petitioners are time barred. Weheard arguments of Counsel on that objection and reserved ourjudgment thereon.
The petitioners are officers employed by the 1st respondentCorporation. On 24.09.90 the corporation called for applications forpromotion to Grades IV, V – A and V – B of the Corporation’s Service.There were 169 applicants (including the petitioners) who wereinterviewed by an Interview Board on 20.10.90 and 27.10.90. On30.10.90 the Corporation published a list of 31 promotees. Thepetitioners allege that the said promotions were discriminatory in thatthe selections were unfairly made, overlooking relevantconsiderations such as seniority and experience, in derogation of theScheme of Recruitment.
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[1995] 2 Sri L.R.
Letters of appointment dated 29.10.90 were given to thepromotees; whereupon the petitioners appealed to the formerChairman of the Corporation who replied on 07.12.90 that no usefulpurpose will be served by forwarding the representations madeagainst the impugned appointments to the President and the Minister.
On further appeals by the petitioners, Mr. Wijeratne Banda, theformer Secretary to the Ministry of Fisheries was appointed to hold aninquiry into the matter. On the basis of his report the Board ofDirectors decided on 23.11.92 that certain officers should be chargesheeted for allegedly misleading the Interview Board by presentingwrong information. However, on 01.02.93 the 2nd respondent (TheChairman of the Corporation) confirmed the impugned promotionsand decided to pay the increments of the promotees which had beenwithheld pending inquiry. Whereupon the petitioners filed theseapplications on 22.02.93.
Pursuant to a direction of this Court to add the 31 promotees asparties, amended applications were filed on 09.03.93.
Mr. J. A. N. de Silva, D.S.G. and Mr. Seneviratne President'sCounsel for the respondents argued that the alleged infringementwas the making of the impugned promotions on 29.10.90 which werepublished on 30.10.90; the former Chairman by his letter dated07.12.90 rejected the representations made by the petitioners; thepetitioners have failed to come before this Court within one month ofthe alleged infringement; pursuit of administrative remedies does notinterrupt the operation of time limit. Gamaethige v. Siriwardena (1)there was nothing to prevent the petitioners filing their applicationsbefore this Court within time and then seeking administrative reliefalso, if so advised.
Mr. R. K. W. Goonesekera for the petitioners conceded that if theviolation was the appointments in October, 1990, then the petitionersare out of time. He, however, contended that there was no finality tothose appointments, pending inquiry into the appeals by thepetitioners, as is seen by the fact that the promotees were not paidtheir increments. Mr. Goonesekera argued that there can be a
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decision in respect of which time will not run until it becomes final. Hecited Wijenaike v. Air Lanka Limited ®, in support.
In Wijenaike’s case the impugned decision was a notice ofvacation of post dated 06.05.88 served on the petitioner. After thepetitioner had given his explanation the Chairman. Air Lanka refusedre-employment to the petitioner on 08.11.88; whereupon thepetitioner filed his application complaining of infringement of hisrights under Article 12(1) of the Constitution. This Court held thatthere is no automatic termination of services of an officer by reason ofunauthorised absence; that the principle of Roman Dutch Lawentitling the employer to repudiate the contract on the ground ofabsence of the servant in appropriate circumstances necessarilyimplies a right in the employee to give his explanation before a finaldecision is taken to repudiate or revoke the contract. Hence therelevant date for computation of time was 08.11.88 when theChairman refused re-employment.
Wijenaike’s case has no application to the instant case. In thatcase the final decision was postponed in terms of the applicableprinciples of law. Here, there is no such decision. The impugnedappointments were published on 30.10.90. No question of finality, asa matter of law arose. The promotees were issued with letters ofappointment dated 29.10.90. They were not informed of anysuspension of those appointments; hence, at the conclusion ofadministrative inquiries in 1993, they were paid all increments ofsalary which had been withheld. I am, therefore, of the view that thealleged violation of rights occurred in October, 1990.
For the foregoing reasons, I hold that the applications of thepetitioners are time barred. This application and applications Nos.120 to 144/93 (both inclusive) are accordingly dismissed, but withoutcosts.
P. S. DE SILVA, C.J. -1 agree.
RAMANATHAN, J. -1 agree.
Applications dismissed.