034-SLLR-SLLR-2009-V-1-KANAPATHIPILLAI-vs.-SRI-LANKA-BROADCASTING-CORPORATION-AND-OTHERS.pdf
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KANAPATHIPILLI VS. SRI LANKA BROADCASTINGCORPORATION AND OTHERS
SUPREME COURTDR. SHIRANI BANDARANAYAKE. J.AMARATUNAGA J.BALAPATABENDI. J.
SC 145/2007DECEMBER 4. 2008JANUARY 22, 200?
Constitution – Art 12 (1), 17, 126 – Jurisdiction of the Supreme Courtto grant reliefs or give directions. Concept of equality – equals andunequals.
The petitioner programme producer of the Is1 respondent Corpora-tion alleged that the appointment of the 4th respondent to the post ofDirector Tamil Service was illegal and thereby had violated Art 12(1)of the Contitution. It was the contention of the petitioner that the 4lhrespondent was disqualified from being re-employed in the publicservice in terms of Administrative Circular 44/90, and that out of theeligible candidates he had scored the highest marks.
The respondent contended that, the Corporation was unaware of thecircumstances of the 4th respondent’s retirement from public serviceand that the interviews were held over two years ago and a long dura-tion of time had passed since the holding of the said interview, and thatthe petitioner had obtained only 42 marks out of hundred which doesnot reflect an extremely high degree of competence.
Held
The concept of equality, which is a dynamic concept is based onthe principle that the status and dignity of all persons should beprotected whilst preventing inequalities, unfairness and arbitrari-ness.
Democracy is founded on the principle that each individual hasequal value. Treating some as automatically having less value than
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others not only causes pain and distress to that person but alsoviolates his or her dignity as a human being.
There should not be any discrimination between persons, who areequally circumstanced; equals should not be placed unequally andat the same time unequals should not be treated as equals. Equalopportunity is only for equals who are similarly circumstanced inlife.
Per Dr. Shirani Bandaranayake. J.
“It is apparent that the 4th respondent should not have beensummoned for the interview as he was disqualified in terms ofAdministrative Circular. The petitioner and the 4*h respondentcannot be treated as equals and out of the two applicants it is onlythe petitioner who was qualified to be considered for the post ofDirector Tamil Services”.
Fundamental rights, which represent the basic values cherishedby the people, would become meaningless if there are noremedies or no independent machinery for their enforcement. TheConstitution had made provision for remedies in terms of Article17 read with Article 126. The provisions laid down in Article 126are very clear wherein the Supreme Court could grant such reliefor make such directions as it may deem just and equitable in thecircumstances of the application in question.
APPLICATION under Article 126 of the Constitution.
Cases referred to:-
Ghaidan vs. Godin Mendoza 2004 2 AC 557
Maneka Ghandhi vs. Union of India 1978 AIR SC 597
Karunatilaka vs. Jayalath de Silva SC 334/2003 SCM25.11.2002
M. K. Wijetunga et al vs, The Principal, Southlands College SC612/2004 SCM 17.11.2005
Asanka Pathiratne vs. University Grants Commission SC 618/2002SCM 5.8.2003
Anushka Jayatileke vs. University Grants Commission SC280/2001 SCM 25.10.2004
Nazir vs. Post Master General SC 251/96 SCM 7.5.1998
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Perera vs. Jayaratne SC 8/96 SCM 5.3.1998
Ratnadasa vs. Government Agent SC Spl 66/96-SCM 16.12.1997
Samarasinghe vs. Air Lanka and others 1996 1 Sri LR 259.
J. C. Weliamuna for petitioner.
Shaheeda Barrie SC for the 1st, 2nd, 3rd and 5th respondents.
Nizam Karaipper for 4th respondent.
Cur.adv.vult.
March 30, 2009
DR. SHIRANI BANDARANAYAKE, J.
The petitioner was a Programme Producer attached tothe Education Service of the 1st respondent Corporationat the time of the filing of this application. The petitioneralleges that the appointment of the 4th respondent to the postof Director-Tamil Service of the 1st respondent Corporationwas illegal and thereby had violated his fundamental rightsguaranteed in terms of Article 12(1) of the Constitution forwhich this Court had granted leave to proceed.
On 24.06.2008, when this matter came up for hearing,learned Counsel for the 4th respondent informed Court thatthe 4th respondent is no longer interested in the position ofDirector-Tamil Service and that he had obtained employmentelsewhere. In the circumstances, learned Counsel for the 4threspondent moved that the 4th respondent be discharged fromthese proceedings. Learned Counsel for the petitioner hadno objection for the said discharge and accordingly the 4threspondent was discharged from these proceedings.
Thereafter this matter was mentioned before this Courton 18.07.2008 to ascertain whether there is a possibility ofa settlement. On that day parties had informed Court thatthey are not in agreement for a settlement. This matter was
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thereafter fixed for hearing and both parties were so heard onthe date of hearing.
The petitioner’s case, as submitted by him, is as follows:
The petitioner had obtained his degree of Bachelor of Artsfrom the University of Peradeniya in 1993 (Pl(a)), a post grad-uate Diploma in Education from the Open University of SriLanka in 1999 (P1 (b)) and a Diploma in Journalism from theUniversity of Colombo in 2002 (Pl(c)).
On 31.03.1995, the petitioner was recruited to theEducation Service of the 1st respondent Corporation asProgramme Producer on a daily paid basis, initially for aperiod of three months, which was periodically extendeduntil 31.12.1999. Thereafter from January 2000 until Sep-tember 2001, the petitioner had served as the Producer of theEducation Service on contract basis. In September 2001, thepetitioner was made permanent in the post of producer of thesaid Education Service and he had been serving in that postup to the time this application was filed (P29(a), P2(b), P2(c),P2(d), P2(e), P2(f), P2(g) and P2 (h).
The petitioner stated that he had nearly 12 years ofexperience as a Programme Producer and had produceda large number of programmes over the years. The petitionerhad also worked as a radio announcer and had interviewedmany well-known personalities. He had contributed articlesto Veerakesari and Thinakural daily newspapers and hadpublished two books in the Tamil language.
In or about May 2006, the 1st respondent Corporation hadcalled for applications, internal and external, for the post of Di-rector – Tamil Service for which the petitioner had respondedas an internal applicant (P3). By letter dated 11.07.2006,the Director (Personnel) of the 1st respondent Corporation
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had called the petitioner for an interview, which was held on18.07.2006. The petitioner had attended the said interviewwith six other applicants.
The petitioner had not known the results of the interviewbut in April 2007 he had reliably learnt that the 4th respon-dent had been selected and appointed to the post of Director-Tamil Service of the 1st respondent Corporation.
The petitioner stated that in 1996 the 4th respondent,while serving as a Teacher at the Hindu College, Bambalapitiyahad retired from public service in terms of the PublicAdministration Circular No. 44/90. The petitioner claimedthat the appointment of the 4th respondent to the said post iscontrary to the Public Administration Circular No. 44/90, asin terms of the said Circular the 4th respondent is disqualifiedto be re-employed in the public service.
Further the petitioner stated that in any event the 4,hrespondent could not have been selected for the said postas he was under interdiction from 19.01.2001 to 29.10.2001in respect of an incident of fraud. The 4th respondent wasre-instated with effect from 29.10.2001 on the basis that hehad paid the 1st respondent Corporation the defrauded sum(P9 and P10).
The marking scheme, which was used at the interview,had not been disclosed to candidates prior to the interview.Subsequently in May 2007, the petitioner had received adocument containing the criteria used at the interview andthe marks given to each candidate and according to thatdocument the petitioner had got the second highest marks,whilst the 4th respondent had got the highest marks at theinterview (Pll). At the interview, marks had been allocatedon the following basis:
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Marks.
educational qualifications in the relevant field 30
experience in the relevant field30
language proficiency20
general facts relevant to interview20
The petitioner complained that as the 4th respondent wasdisqualified from being re-employed in the Public Service interms of Public Administration Circular No. 44/90, the 4threspondent’s appointment to the post of Director – TamilService of the 1st respondent Corporation, is illegal and isin violation of petitioner’s fundamental rights guaranteed interms of Article 12(1) of the Constitution.
Learned State Counsel for the 1st to 3rd and 5th re-spondents admitted that in terms of clause 5 of the PublicAdministration Circular No. 44/90, dated 18.10.1990, the 4threspondent was not entitled to hold any post in the publicsector including public Corporations.
The 2nd respondent had averred in his affidavit that the1st respondent Corporation had been unaware of the cir-cumstances of the 4th respondent’s retirement from PublicService. Further it was averred that,
“As the attention of the 1st respondent has now beendrawn to this fact by the petitioner, steps have beentaken to suspend the appointment of the 4th respondentuntil the conclusion of this case” (emphasis added).
Learned counsel for the petitioner contended that out ofthe eligible candidates, it is the petitioner, who had scoredthe highest marks and therefore the failure to appoint thepetitioner for the post in question was arbitrary and discrimi-natory and in violation of Article 12(1) of the Constitution.
Article 12(1) of the Constitution, deals with the right toequality and reads as follows:
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*AU persons are equal before the law and are entitled tothe equal protection of the law. ”
The concept of equality, which is a dynamic concept,is based on the principle that the status and dignity of allpersons should be protected whilst preventing inequalities,unfairness and arbitrariness. Sir Ivor Jennings (The Law of theConstitution, pg 49) referred to the concept of right to equalityand had stated that, where among equals the law shouldbe equal and should be equally administered. This positionrelates to the view expressed by Dicey, where he took up theposition that officials should enforce the law consistently andeven-handedly (The Law of the Constitution, 10th edition,Pg. 193). Such consistency, it had been regarded by Dicey(supra), as a fundamental feature of the rule of law. Refer-ring to the principle of equality, Baroness Hale in Ghaidan vGodin-Mendoza[ 11 had stated that,
“Democracy is founded on the principle that each indi-vidual has equal value. Treating some as automaticallyhaving less value than others, not only causes pain anddistress to that person, but also violates his or her dignityas a human being.”
Thus, there should not be any discrimination betweenpersons, who are equally circumstanced; equals should notbe placed unequally and at the same time unequals shouldnot be treated as equals. Equal opportunity is only for equals,who are similarly circumstanced in life.
As stated earlier, both the petitioner and the 4lh respondenthad faced the interview for the post of Director-Tamil Serviceof the 1st respondent Corporation on 18.07.2006, and whenthe 4th respondent had scored the highest marks, viz. 48, thepetitioner had been next in line obtaining 42 marks.
It is also to be noted that the petitioner had not challengedthe selection process in its entirety. The contention of the
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learned Counsel for the petitioner was that the process ofselecting a candidate for the post of Director-Tamil Service wasfollowed properly, except for the fact that the 4th respondentwas not qualified and should not have been called for the in-terview. The petitioner had not challenged either the mannerin which the interview was held or the marks that were allo-cated under the criteria referred to above to the applicants.
Considering the submissions made by the learned Counselfor the petitioner and the learned State Counsel for the 1st to3rd and 5th respondents, it is apparent that the 4th respondentshould not have been summoned for the interview as he wasdisqualified in terms of clause 5 of Public AdministrationCircular No. 44/90 (P6). Accordingly in terms of Article 12(1)of the Constitution, the petitioner and the 4th respondentcannot be treated as equals and out of the two applicants,it is only the petitioner, who was qualified to the consideredfor the post of Director-Tamil Service of the 1st respondentCorporation.
On a consideration of the totality of the circumstances,I hold that the appointment of the 4th respondent was not ona basis that is reasonable and justifiable; it was arbitrary,unreasonable and in violation of the petitioner’s fundamentalrights guaranteed in terms of Article 12(1) of the Constitutionand I hold that the 4th respondent’s appointment is invalid.
Learned Counsel for the petitioner contended that out ofthe eligible candidates, the petitioner had scored the highestmarks and therefore the petitioner should be appointedto the post of Director-Tamil Service of the Is' respondentCorporation.
The 2nd respondent in his affidavit dated 12.02.2008,.had referred to the mark sheet (1R1), of the interview heldfor the post of Director-Tamil Service. According to the saiddocument (1R1) there were 5 candidates, who had been
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possessed of basic qualifications. Out of them, the 4th respon-dent had obtained 48 marks, the petitioner 42 marks andthe others had obtained 37, 36 and 22 marks respectively.Accordingly as stated earlier, the petitioner had received thesecond highest marks at the interview However, it is relevantto consider the recommendation made by the members of theInterview Panel, which consisted of six members, where ithad been stated that,
“Considered the pass mark as 35 (Thirty-five) – Recom-mend to appoint an applicant who has got over 35 marks,after calling for Police clearance report.”
Learned State Counsel for the 1st to 3rd and 5th respondentsalso submitted that the interviews were held over two yearsago in July 2006 and a long duration of time had passed sincethe holding of the said interview. It was also submitted thatthe petitioner had obtained only 42 marks out of hundred,which does not reflect an extremely high degree of compe-tence of the petitioner.
Fundamental rights, which represents the basic valuescherished by the people’ (Maneka Ghandhi v Union oflndiaP')would become meaningless, if there are no remedies or no in-dependent machinery for their enforcement. The Constitutiontherefore had made provision for remedies in terms of Article17 read with Article 126 of the Constitution. Article 17, whichis contained in Chapter III of the Constitution deals withremedies for the infringement of fundamental rights byexecutive action.
Article 126 of the Constitution deals with the fundamentalrights jurisdiction and its exercise and Article 126(4) specifi-cally refers to the relief that could be granted in respect ofpetitions filed before this Court. Article 126(4) reads as follows:
“The Supreme Court shall have power to grant suchrelief or make such directions as it may deem just and
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equitable in the circumstances in respect of any petitionor reference referred to in paragraphs (2) and (3) of thisArticle or refer the matter back to the Court of Appeal if inits opinion there is no infringement of a fundamental rightor language right.”
The provisions laid down in Article 126 of the Constitu-tion are very clear wherein the Supreme Court could grantsuch relief or make such directions as it may deem just andequitable in the circumstances of the application in question.On this basis, there are instances, where this Court had givendirections to admit students to schools or higher educationalinstitutions such as universities (Karunathilake v Jayalathde Silvaf3) M. K. Wijethunga et al v The Principal, SouthlandsCollege^ Asanka Pathiratne v University Grants Commissionl,5)Asanka Jayathilake v University Grants Commission,6) or tomake appointments in accordance with the law (Nasir v. PostMaster Generate Perera v. Jayaratnd8) Ratnadasa v. Govern-ment AgentPK
An examination of the provisions of Article 17 read withArticle 126 of the Constitution and the decisions of thisCourt, reveal that although this Court has a wide discretionin terms of Article 126(4) of the Constitution in grantingrelief and making such directions as it may deem just andequitable, such decisions would be taken considering thecircumstances of the case in question. In Samarasinghe v.Air Lanka and others{10] the said position was emphasised bythis Court, when considering the validity of the appointmentmade to the 13th respondent as the International RelationsManager, which was created by upgrading that petitioner’scurrent post. In that the petitioner had been recommendedfor appointment by the duly constituted panel of high rankingofficials. Whilst holding that the petitioner’s fundamentalrights guaranteed in terms of Article 12(1) of the Constitution,and directing that the appointment of the 13th respondentbe terminated forthwith, the Court considered the relief that
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should be granted to the petitioner in that case and statedthus:
“Although the Court has a wide discretion in terms ofArticle 126(4) of the Constitution in granting relief andmaking such directions as it may deem just and equitable,I do, in the circumstances of this case refrain frommaking an order of appointment.
On a careful consideration of all the facts and circum-stances of this application stated earlier, I am of the view thatno order of appointment should be made in this matter.
For the reasons aforesaid, I hold that the petitioner’sfundamental rights guaranteed in terms of Article 12(1) hadbeen violated. The petitioner’s application is accordinglyallowed and I direct that the appointment of the 4th respon-dent, which has been suspended until the final hearing anddetermination of this application by the 1st respondent beterminated forthwith. I award the petitioner a sum of Rs.100,000/- as compensation and costs for the infringement ofhis fundamental rights guaranteed in terms of Article 12(1) ofthe Constitution, payable by the 1st respondent within threemonths from today.
I also make order and direct that steps be taken forth-with by the 1st respondent to fill the vacancy of Director-TamilService of the 1st respondent Corporation in terms of the 1strespondent Corporation’s policy and the said appointment tobe made within four (4) months from today.
AMARATUNGA, J. – I agreeBALAPATABENDI, J. – I agree
Application allowed.
1st Respondent directed to take steps forthwith to fill thisvacancy in terms of the Respondent corporation’s policy.