SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)231
Taking into consideration the contents of the aforesaid letter alongwith the sequence of events that took place since February 2002,and the fact that allegations set out in the document dated
(P14) relate to incidents that had occurred more than 20years ago at the time the petitioner was a Cadet, clearly indicate thatthe decision to retire the petitioner on the basis of inefficiency withoutfollowing the provisions of clause 33 of Chapter XLVIII of theEstablishment Code and Circular 6/97 (P20) read with the Directivedated 16.07.1999 (P21) is arbitrary and unfair.
Considering the present day administrative functions, there is nodoubt that it is necessary to confer authority on administrative officers
to be used at their discretion. Nevertheless, such discretionaryauthority cannot be absolute or unfettered as such would be arbitraryand discriminatory, which would negate the equal protectionguaranteed in terms of Article 12(1) of the Constitution. Examiningthe discretionary powers and stressing the importance of the wellknown House of Lords decision in Padfield v Minister ofAgriculture, Fisheries and Food3) Lord Denning M.R. in Breen vAmalgamated Engineering Unions stated that,
"The discretion of a statutory body is never unfettered. It is adiscretion which is to be exercised according to law. That meansat least this; the statutory body must be guided by relevantconsiderations and not by irrelevant. If its decision is influencedby extraneous considerations which it ought not to have takeninto account, then the decision cannot stand. No matter that thestatutory body may have acted in good faith; nevertheless thedecision will be set aside. That is established by Padfield vMinister of Agriculture, Fisheries and Food (supra) which is alandmark in modern administrative law."

232Sri Lanka Law Reports[2008] 2 Sri L.R
SC Munasinghe v Vandergert (Dr. Shirani Bandaranayake, J.)233
Article 12(1) of the Constitution strikes at arbitrariness andensures fairness and equality in treatment. In a series of Indiandecisions it was clearly laid down that the basic concept of the rightto equality is not restricted to the doctrine of classification. In E.P.Royappa v State of Tamil Nadi/5), Bhagwati, J., (as he then was)clearly defined equality in the following terms:
"Equality is a dynamic concept with many aspects anddimensions and it cannot be ’cribbed, cabined and confined'within traditional and doctrinaire limits. From a positivistic pointof view equality is antithetic to arbitrariness. In fact equality andarbitrariness are sworn enemies; one belongs to the rule of lawin a republic while the other, to the whim and caprice of anabsolute monarch…."
The concept of equality explored in Royappa (supra) byBhagwati, J. (as he then was) was 'reaffirmed and elaborated' inManekha Gandhi v Union of India<6» and in International AirportAuthorityd).
Thus it is well established and well settled law, as stated in theaforesaid decision that an action, which is arbitrary must necessarilyinvolve negation of equlity.
Commenting on the applicability of equality clause in terms ofArticle 14 of the Indian Constitution Bhagwati, J. (as he then was)in A jay Hasia Khalid Mujit/*) stated that,
"Wherever therefore there is arbitrariness in State actionwhether it be of the legislature or of the executive or of an'authority' under Article 12, Article 14 immediately springs intoaction and strikes down such State action. In fact, the conceptof reasonableness and non-arbitrariness pervades the entireconstitutional scheme and is a golden thread which runsthrough the whole of the fabric of the Constitution (emphasisadded)."
It is not disputed that there was no formal inquiry, which examinedand considered the allegations that were leveled againstthe petitioner. It is also not disputed that no opportunity wasgiven to the petitioner to respond to the allegations leveled againsthim. On a consideration of the totality of the circumstances in this
234Sri Lanka Law Reports[2008] 2 Sri L.R
application it is apparent that the decision to retire the petitioner onalleged inefficiency without following the provisions of theEstablishment Code and the relevant Circular and Directives, is notonly arbitrary, but also unreasonable and unfair.
In the circumstances, for the reasons aforesaid I hold that the1st to 10th respondents have acted in violation of the petitioner'sfundamental right guaranteed in terms of Article 12(1) of theConstitution. I accordingly hold that the decisions contained in thedocument dated 05.08.2005 marked P18 are null and void.
I make no order as to compensation and costs.
Relief granted.