LIYANAPATHIRANA AND ANOTHER v. PEOPLES BANK AND OTHERS

037-SLLR-SLLR-1993-1-LIYANAPATHIRANA-AND-ANOTHER-v.-PEOPLES-BANK-AND-OTHERS.pdf


358
Sri Lanka Law Reports
[1993] ISriLR.
LIYANAPATHIRANA AND ANOTHERv.
PEOPLES BANK AND OTHERS
SUPREME COURT.
FERNANDO, J.
RAMANATHAN, J. ANDPERERA, J.
S.C. APPLICATION NO. 143/91.
SEPTEMBER 09 AND MARCH 11, 1993.
Fundamental Rights – Scheme of Promotion – Differentiation by reference toclasses – Article 12(1) of the Constitution.
The petitioners were employees of the first respondent Bank in the clerical grade.On the basis of Staff Circular No. 216/88 certain promotions numbering 228 weremade. Later by administration Circular No. 16/90 dated 09.03.90 promotions onethnic rations were provided for and on this basis 29 promotions were made.If these 29 employees were promoted on the basis of Circular 216/88 446employees in all including the two petitioners would have qualified for promotion.But the two petitioners did not have recourse to their legal remedy at that time(although the Supreme Court had pronounced that promotions on ethnic rationscontavened Article 12(1) and (2)).
Thereafter Circular No. 4005/91 dated 5.9.91 was issued calling for applicationsfor promotion to Grade III, Class 2 from officers who had completed one yearof service after confirmation in Grade III, Class 3. While the 29 officers who hadbeen promoted on the ethnic ratio could have satisfied this condition, thepetitioners were not qualified.
Held :
The petitioners had ceased to be in the same class as the 29 promotedemployees. Differentation by reference to the classes to which the employeesbelonged and service therein is neither irrational nor unintelligible. There is noviolation of Article 12(1).
SCLiyanapathirana and Another v. Peoples Bank and Others (Fernando), J. 359
Case referred to :
Ramupillai v. Minister of Public Administration, [1991] 1 Sri LR II.
APPLICATION for relief for infringement of fundamental rights on the ground ofdiscrimmaiion.
R. K. IV. Goonesekera with Lakshman Perera and J. C. Weliamuna for petitioners.A S. M. Perera, D.C.G. for respondents.
Cur. adv. vult
Apr! 01, 1993.
FERNANDO, J.
In 1988 the two Petitioners were employees of the 1st Respondentin the Clerical Grade. By Staff Circular No. 216/88, applications wereinvited, from employees in the Clerical and Stenographers Grade, forpromotions for 228 vacancies in Grade III class 3 (which were StaffGrade posts) ; of these vacancies, 30% (68) were to be filled onseniority, and the balance 70% (160) on merit, on the results of awritten job test or competitive examination. On 22.5.88 that writtenexamination was held, and the results were released on 31.1.89 ;letters of appointment dated 23.2.90 were issued to the first 160 inorder of merit, according to the marks obtained ; these promotionswere effective from 22.5.88, and are not in any way questioned bythe Petitioners.
Public Administration Circular No. 15/90 dated 9.3.90 was thenissued, providing for promotions on ethnic ratios ; on that basis lettersof appointment dated 21.5.90 were issued to 29 others (17 Tamiland 12 Muslim employees), making supernumerary appointments;had additional or supernumerary appointments been made on thebasis of merit alone, as disclosed by the marks obtained, another466 employees (including the two Petitioners) should also havebeen promoted. However these 29 promotions were not challengedby the Petitioners or anyone else, either immediately or in early1991 after the decision in Ramupillai v. Minister of PublicAdministration <’>, (which held that promotions on ethnic ratios werecontrary to Article 12 (1) and (2). The Petitioners do not claim thatthey should now be promoted to Grade III class 3.
360
Sri Lanka Law Reports
[1993] ISriLR.
Thereafter by the 1st Respondent's Circular No. 4005/91 dated 5.9.91applications were called, from officers 'in Grade III class 3, forpromotions for 280 vacancies in Grade III class 2 ; of thesevacancies, 30% (84) were to be filled on seniority, and the balance70% (196) on merit, on the results of a written competitive exami-nation. In respect of the latter category, various alternative qualifi-cations were prescribed, but one essential condition was thatcandidates should have completed one year of service afterconfirmation in Grade III class 3. Obviously, the Petitioners and therest of the aforesaid 466 employees did not satisfy, and could nothave satisfied, that condition.
The Petitioners then made this application under Article 126 on4.10.91 ; their case is that the 29 employees promoted to GradeIII class 3, on ethnic ratios in accordance with the invalid PublicAdministration Circular, constituted one class together with the afore-said 466 employees who should have been treated equally andpromoted at the same time ; that the 1st Respondent should have,administratively, treated them as belonging to one class, although noapplication had been made under Article 126 for a judicial decisionto that effect; that consequently their lack of one essential qualificationwas due to no lapse or default on their part ; that such ineligibilitywas the result of discrimination in violation of Article 12(1) ; and thattheir exclusion from the category of persons eligible to apply forpromotion in terms of Circular No. 4005/91 was also in violation ofArticle 12(1). On that basis, the Petitioners prayed for a declaration,and for an order directing the 1st Respondent to consider the Petitionersas being eligible for promotion to Grade III class 2.
After this matter was argued on 9.9.92, it was referred to theCommissioner for the Elimination of Discrimination and Monitoring ofHuman Rights, for mediation and conciliation, but the parties wereunable to arrive at a settlement. It seems to me that the 1stRespondent ought to have taken whatever action was possible toremedy the injustices caused by the unconstitutional promotion of 29employees by reference to ethnic quotas. However, the Petitionersthemselves did not have recourse to their legal remedy to vindicatetheir fundamental right. Consequently, the factual position now is thatsince May 1990 the Petitioners (and the rest of the aforesaid 466employees) had ceased to be in the same class as these 29 employees.
SCUyanapathirana and Another v. Peoples Bank and Others (Fernando), J.361
Thus, when Circular No. 4005/91 was issued more than one yearlater, there were two distinct classes, and not one class. The 29employees in Grade III class 3 probably had by then one year ofconfirmed service in Grade III class 3, while the Petitioners did not.Differentiation by reference to the classes to which they belonged,and service therein, was neither irrational nor unintelligible. There hasbeen no violation of Article 12 (1).
The Petitioners' application has therefore to be dismissed, but, in allthe circumstances, without costs.
RAMANATHAN, J. – I agree.
PERERA, J. – I agree.
Application dismissed.