NARENDRAKUMAR v. ZIYARD AND OTHERS

023-SLLR-SLLR-2000-V-1-NARENDRAKUMAR-v.-ZIYARD-AND-OTHERS.pdf


NARENDRAKUMAR
v.ZIYARD AND OTHERS
SUPREME COURT
S.N. SILVA, C. J.
PERERA, J. ANDGUNASEKERA, J.
S. C. (FR) APPLICATION No. 777/9629™ OCTOBER, 1999.
Fundamental rights – Complaint against appointments in a Bank-Articles12(1), .! 7 and 126(1) of the Constitution – Time bar.
The petitioner and three others Ziyard, Jayawardena and Kiritharanapplied for the post of Deputy Chief Legal Officer of the 2nd respondentBank. All of them were eligible to apply for the post. After interview theBoard of Directors selected Jayawardena and the formal announcementof her appointment was made on 31.08.1995. That appointment waschallenged by Ziyard, the 1“ respondent to this application in SC(FR)483/95 in which the petitioner to this application and Kiritharan (the14'h respondent to this application) were not made parties. Ziyard wasgranted leave to proceed in respect of the alleged infringement of Article12( 1) of the Constitution. While that application was pending, Ziyardreached the optional age of retirement. The Bank had on 18.01.1996refused to grant him an extension of service. This prompted him to fileapplication SC(FR) 240/96 on 15.02.1996 against the Bank. In thatapplication also, leave to proceed was granted in respect of the allegedinfringement of Article 12(1).
Kiritharan applied to intervene in SC(FR) 483/95. This was refusedby the Court on 30.09.1996. On 23.10.1996 both applications wereconcluded by a settlement in Court whereby the Bank agreed to appointZiyard as Deputy Chief Legal Officer (Supernumerary) with effect fromthat day and Ziyard agreed to retire after going on leave prior toretirement from that day on available privilege leave. It was also agreedthat his pension will be computed on the basis of his appointment asDeputy Chief Legal Officer (Supernumerary).
Whereupon, the petitioner filed the present application on 25.1 1.1996naming as respondents inter alia, Ziyard. Jayawardena and Kiritharan
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as the 1st. 9th and 14th respondents respectively on the ground of allegedinfringement of Article 12(1).
Held :
As regards Jayawardena's appointment, the application was wayoutside the period of one month prescribed by Article 126( 1). As regardsZiyard's appointment the application made on the ground that the saidappointment, recorded by Court as a settlement, was arbitrary' andcapricious, is misconceived in that what Ziyard received was a retinalbenefit. The settlement effectively prevented him from functioning in theappointment which he received pro forma. The petitioner not havingreached the optional age of retirement, was noL in the same class ofpersons as Ziyard.
Cases referred to :
Gunawardena u. Senanayake FRD Vol. I p. 177.
Jayawardena v. Attorney – General FRD Vol. 1 p. 175.
Krishna Mining Co. Ltd. v. JEDB (1996) 2 SRI LR. 209.
Gamaclhige u. Sirimnrdenri and others (1998) 1 SRI LR. 384.
Ramanaihan u. Tennakoon (1988) 2 CALR 187.
Edirisinghe v. Navaratne (1985) 1 SRI LR. 100 at 106.
Soman v. Leeladasa 11989) 1 SRI LR. 1.
Namasivayam v. Gunawardena (1989) 1 SRI LR. 394.
APPLICATION for relief for infringement of fundamental rights.
S. Sivarasa, P. C. with E. R. S. R. Coomaraswamy and A. R. Siuendran forpetitioner.
Sanjeewa Jayawardena for the l*1 and 2"'1 respondents.
E. D. Wicla-emanayake for the 2nd to 8"’ and 12* to 13"'respondents.Romesh de Silva, P. C. with Harsha Amarasekera for the 9'" respondent.Nilanlhi Mendis for the I0lh respondent.
Cur. adv. unit.
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Narendrakumar v. Ziyard and Others
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March 31. 2000S. N. SILVA. C. J.
This Application has been filed on 25.11.96 and thePetitioner has been granted leave to proceed on 30.1.97 inrespect of the alleged infringement of Artcile 12(1) of theConstitution.
The Application is linked with a previous application S. C.(FR) 483/95 filed on 1.9.95 to which is linked to yet anotherApplication S. C. 240/96. Both these Applications wereconcluded by an order made by this Court on 23.10.96. Inessence the dispute in all these applications relate tothe appointment of a Deputy Chief Legal Officer of the 1stRespondent Bank. The pleadings in this application makeextensive references to the pleadings and proceedings in theprevious applications and in view of objections that have beenraised, I would set out briefly the material facts and sequenceof events relevant to them.
Taking the picture that emerges from the totality of thepleadings, the dispute in these applications involve fourpersons, namely (i) the petitioner (Narendrakumar) (ii) the 1stRespondent (Ziyard) (iii) 9th Respondent (Jayawardena) and
the 14th Respondent (Kiritharan). They have been allofficers attached to the Legal Branch of the Bank. Their longservice in the Bank commenced in 1976/1977 and the initialappointments in the service of the Bank were made as follows:
Ziyard
Jayawardena
Kiritharan
Narendrakumar
01.12.1976
22.03.1977
30.03.1997
They were promoted to the grade of Senior Legal Officer onthe same day i. e. 1.1.1990. Things appear to have movedsmoothly until the pyramid narrowed and the time came for
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the appointment to the single post of Deputy Chief LegalOfficer, upon the premature retirement of the then incumbenton 31.5.1995.
According to the applicable organisational chart and thepromotional scheme, the eligibility for the post of Deputy ChiefLegal Officer is three years service as a Senior Legal OfficerGrade I. Thus, the four persons referred to above were eligibleand were required to submit their bio-data which was done inthe 2nd week of July 1995. They were interviewed by the Boardof Directors of the Bank on 4.8.1995 and the Petitioner hasstated in his affidavit that a short time after the interviews wereconcluded, he was informed that Jayawardena has beenselected for the post of Deputy Chief Legal Officer. The formalannouncement of her appointment was made by letter dated31.8.1995 and she was appointed to that post with effect from1.8.1995.
Ziyard filed application bearing No. S. C. 483/95 in thiscourt on 1.9.1985 alleging that the selection of Jayawardenaconstituted an infringement of his fundamental right to equality.Neither the Petitioner Narendrakumar nor Kiritharan weremade parties to that application. The application was supportedfor leave to proceed on 4.9.95 and leave was granted in respectof the alleged of infringement of Article 12(l)ofthe Constitution.The case was fixed for hearing on 31.10.95, on which date itwas refixed for hearing on 9.2.96, since Ziyard being thePetitioner moved for time to file a counter affidavit. Thereafterthe application was listed for hearing on 25.3.96.
In the meanwhile there was another development in whichZiyard who was reaching the optional age of retirement in theservice of the Bank sought an extension of his period of servicewhich was refused by the Bank by letter dated 18.1.96. In theresult Ziyard had to retire with effect from 16.4.1996. Thisprompted him to file application S. C. (FR) 240/96 on 15.2.96.That application was supported on 8.3.96 and leave to proceedwas granted in respect of alleged infringement of Article 12(1)
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of the Constitution. The application was listed for hearingon 8.7.96 and relisted on 15.10.96.
When application S. C. (FR) 483/95 was taken up forhearing on 16.9.96, arising from the submissions made incourt, it was recorded that the Petitioner agreed to explore thepossibility of a settlement and the case was to be called on30.9.96 to ascertain whether a settlement'had been reachedand if not, to list the case for resumption of hearing. Whenthat case was called on 30.9.96, an application was madeby Kiritharan to intervene in that case. In his petition forintervention dated 27.9.96, Kiritharan stated that theappointment of Jayawardena to the post of Deputy Chief LegalOfficer is arbitrary and flawed by discrimination and sought anorder cancelling her appointment. On 30.9.96 the Courtrefused the application of Kiritharan for intervention. Thejournal entry states that the applications for intervention byKiritharan and Narendrakumar are rejected. However, therecord in that case contains only an application of Kiritharanfor intervention. Be that as it may, in the proceedings it isfurther recorded that counsel informed court that it had notbeen possible to pursue a settlement in view of the applicationfor intervention and moved for a further date. The case wasthen fixed for 23.10.96.
The cases S. C. (FR) 483/95 and 240/96 were concludedby the order made by Court on 23.10.96. Since both counselhave made extensive references to portions of that order, Iwould set out the entire order;
‘The Petitioner (Ziyard) is present and through hisCounsel agrees to the following terms of settlement :
In view of the Bank (1st Respondent) agreeing to placethe Petitioner in the post of Deputy Chief Legal Officer(Supernumerary) with effect from today i. e. 23.10.1996and to adjust his salary accordingly, the Petitioner
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will go on leave prior to retirement and will availhimself of the privilege leave available to him witheffect from today; and
will be entitled to his pension computed on the basisof this appointment as Deputy Chief Legal Officer(Supernumerary)
The Court makes order in terms of the above settlement.
This settlement will not in any way affect the rights of the
8th Respondent (Jayawardena) who has been appointed as
Deputy Chief Legal Officer.
In view of the above settlement, the Petitioner withdraws
S. C. Application No. 240/96.”
Registrar to noteA copy of this to be filed in the docket of S. C. Application
No. 240/96.”
This application was filed by Narendrakumar on 25.1 1.96,naming Ziyard being the Petitioner in both previous applicationsas the 1st Respondent and Jayawardena as the 9th Respondent,and Kiritharan who sought to intervene in the previousapplication as the 14th Respondent. Thus all four aspirants tothe post of Deputy Chief Legal Officer are now in court, in whatis numerically the 3rd round of litigation relating to the muchcoveted office.
The petitioner has been granted leave to proceed on thealleged infringement of Article 12(1) of the Constitution.
Two preliminary objections have been raised by theRespondents on the basis :
that this application is misconceived;
that it is time-barred.
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Since there are wide ranging averments in the Petition andin view of the preliminary objections raised, it is necessary tofocus on the specific infringement alleged and the correspondingrelief that has been sought. The thrust of the averments in thePetition is two fold: firstly it is directed at the appointmentof Jayawardena as the Deputy Chief Legal Officer. Secondly, itis directed at the appointment of Ziyard as SupernumeraryDeputy Chief Legal Officer.
Paragraphs 8 to 13 of the Petition refer to the criteria andthe process adopted by the Board of Directors for the selectionof a candidate for the post of Deputy Chief Legal Officer and thePetitioner draws an inference from what he has set out inparagraph 14 as follows :
“In all these circumstances it is submitted that a fairand equitable evaluation based on rational criteria couldnot have been made. The whole process smacks ofarbitrariness and discrimination. The procedure adoptedby the Board, functioning as a Selection Board, has beenarbitrary and not guided by any rule or principle known inadvance.”
The complaint regarding the appointment of the 1stRespondent as Supemumeraiy Deputy Chief Legal Officer issomewhat muted and restricted to a single paragraph of thepetition, where it is merely alleged that the appointment is“arbitrary, capricious and without cancelling the appointmentof the 9th Respondent and in violation of the 2nd Respondent’sown cadre and procedure.” These averments are followed upby way of relief in a single sub-paragraph in the prayer bywhich an order is sought directing the 2nd Respondent Bank tocancel the appointments of 9th Respondent Jayawardena andthe 1st Respondent Ziyard.
Although the Petitioner with a degree of ingenuity hasrolled up the relief in respect of both appointments in the saidsub paragraph of the prayer, in view of the objection of time bar
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we have to examine the alleged infringements in relation to therespective appointments, separately.
The selection of Jayawardena to the post of Deputy ChiefLegal Officer was made immediately after the interview held on
as alleged by the Petitioner himself. The appointmentwas effected by letter dated 31.8.95 with eiTect from 1.8.95.Whereas the appointment of Ziyard as SupernumeraryDeputy Chief Legal Officer was made with effect from 23.10.96pursuant to a settlement in Court.
The objection of time bar relates to the infringementalleged in respect of the appointment of Jayawardena.
Artcile 126(2) of the Constitution gives the right to aperson who alleges an infringement or imminent infringementof a fundamental right guaranteed by the Constitution to applyto this Court within one month of such infringement.
In the early cases in which the question of time bar wasconsidered by this court it was held that the general rule is thatan application has to be made within one month of thepetitioner becoming aware of the alleged infringement – videGunawardena vs. Senanaijakeni – FRD Vol. 1 page 177.
In the case of imminent infringement, the period iscomputed from the date the Petitioner had an apprehensionthat his fundamental rights are about to be infringed (videJayawardene vs. Attorney-General121).
In Krishna Mining Co. Ltd., vs. JEDB31 – it was held thatalthough a Petitioner is entitled to challenge an imminentinfringement, he was nevertheless entitled to wait until therewas an actual infringement when the application pertains tothe infringement, as such. Thus, for the purposes of applyingthe time bar an alleged imminent infringement and the actualinfringement have to be considered separately although theacts complained of may constitute a single executive oradministrative process.
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In the case of Gamaethige vs. Siriwardena and others'41, astrict interpretation was adopted. It was held that the timelimit was mandatory and the pursuit of other remedies judicialor administrative does not prevent or interrupt the operationof the time limit.
This decision was followed in Ramanathan vs. Tennakoon15’,where it was held that the delay cannot be excused on thebasis of an application to a commission appointed under theRegulations made in terms of the Sri Lanka Foundation Law.A statutoiy exception has now been introduced in relation toapplications made within the one month period to the HumanRights Commission of Sri Lanka by Section 13(1) of Act No. 21of 1996.
The Court has recognised that there is an element ofdiscretion in entertaining an application that is ex facieoutside the one month time limit. To avail of this discretionarypower “the Petitioner must provide an adequate excuse for thedelay in presenting the petition” vide Ekixrisinghe vs. Navaraine161.The rationale of the exercise of discretion in this regard isthe application of the principle lex non cogit ad impossibiliawhich has been recognised in several cases relating to allegedinfringements of Articles 13(1) and 13(2) of the Constitution,arising from the arrest and detention of persons, [vide Samanvs. Leeladasam and Namasivayam vs Gunawardena181].
In the background of the aforestated consistent trend ofdecisions in applying the one month rule as contained inArticle 126(2) of the Constitution, I would now deal with thearguments in this case which involve yet another dimensionrelevant to the nature of proceedings contemplated by Article126 and the application of rule. As noted above the principalcomplaint of the Petitioner relates to the appointment ofJayawardena as Deputy Chief Legal Officer. The Petitionerbecame aware of the appointment very early in the state ofaffairs, i. e. on the date of the interview itself, being 4.8.95. Thisapplication has been filed on 25.11.96 which is ex facie way
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outside the period of one month from the date the Petitionerbecame aware of the alleged infringement. He seeks to excusethe delay on the basis that the complaint regarding theappointment of Jayawardena was made to this court by Ziyardwell within the period of one month of the appointment.That, the Petitioner and Kiritharan identified themselveswith the complaint of Ziyard. But, when Ziyard sought toenter into a settlement with the Bank in relation to theproceedings instituted by him, they (in fact only Kiritharan)sought to intervene in those proceedings and having failedin that endeavour the Petitioner instituted the presentproceedings, within one month of the application filed byZiyard being concluded upon the settlement referred to above.
On a consideration of the factual matters 1 am inclined tobelieve the assertion of the Petitioner that Kiritharan and heidentified themselves fully with the applications filed by Ziyard.They expected Ziyard to "deliver the goods" by dislodgingJayawardena from the post which they aspired to secure foreach of them. It appears from the pleadings, that they viewedJayawardena as the common adversary. However, the issuethat we are now confronted with cannot be resolved on sucha simplistic factual basis. It involves mixed questions of factand law. It involves four elements, they are :
the question relating to a right;
the correlative duty;
an alleged infringement; and
the institution of the legal proceedings to redress thatinfringement.
These four elements are encompassed in the classicphrase “cause of action" which runs through the gamut of CivilProcedure. Section 5 of the Civil Procedure Code defines acause of action as “the wrong for the prevention or redress of
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which an action may be brought and includes the denial of aright . . If we, only for purpose of clearer comprehension,relate that definition to the proceedings provided for by Article126 of the Constitution, it will be seen that the right that isclaimed is a fundamental right. In terms of Article 4(d) ofthe Constitution fundamental rights constitute part of thesovereignty of the People which are declared and recognisedby the Constitution, that is in Articles 10 to 14 of theConstitution. The correlative duty is also laid down in Article4(d) which mandates all organs of Government to respect,secure and advance the fundamental rights of the People asare declared and recognized by the Constitution. It is furthermandated that these rights shall not be abridged, restricted ordenied save of the manner and to the extent as provided in theConstitution.
Every person, is entitled to the rights and freedomsrecognized in Articles 10,11,12(1) and 13 of the Constitution.Every citizen is entitled to the rights and freedoms recognizedin Article 12(2) and 14 of the Constitution. The right to equalitywhich is guaranteed by Article 12(1) being the one in issue,carries with it the concept of classification based on intelligibledifferentia, having a rational relation to the object sought to beachieved by such classification. Thus there is a commonelement in these rights and the correlative duty lying upon theorgans of the Government, to respect, secure and advancethese rights, in the sense that they pertain to every person orcitizen as the case may be. In this respect these rightstranscend personal and contractual, rights recognized andenforced in private law by the civil courts.
Although these rights and freedoms are common toeverybody or every citizen, as noted above, the right toinvoke the Constitutional remedy in Article 126(1) upon aninfringement of such a right is individual to the person whois aggrieved by such infringement. This is the necessaryinference of the words as contained in Article 17 and 126(2) ofthe Constitution.
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Which reads thus:Article 17:“Every person shall be entitled to apply
to the Supreme Court, as provided by Article 126, inrespect of the infringement or imminent infringement, byexecutive of administrative action, of a fundamental rightto which such person is entitled under the provisions ofthis Chapter.
Article 126(2) "Where any person alleges that anysuch fundamental right or language right relating to suchperson has been infringed or is about to be infringed byexecutive or administrative action, he may himself or byan attorney-at-law on his behalf, within one month thereof,in accordance with such rules of court as may be in force,apply to the Supreme Court by way of petition in writingaddressed to such Court praying for relief or redress inrespect of such infringement. Such applicationmay be proceeded with only with leave to proceed first hadand obtained from the Supreme Court, which leave maybe granted or refused, as the case may be, by not less thantwo Judges."
Thus the four aspirants to the post of Deputy Chief LegalOfficer, who faced the interview on 4.8.1995 enjoyed thecommon right to the equal protection of the law as guaranteedby Article 12(1) of the Constitution. Some of them mayhave had a similar perception that the selection processwas flawed by arbitrariness and the absence of rational criteriaas is alleged resulting in an infringement of their right to theequal protection of the law. The right to apply to this Court inrespect of such infringement which also takes the form of afundamental right in the manner it is stated in Article 17 of theConstitution may also be common to those who allege thesame infringement. But, the manner of making such anapplication as provided in Article 126(2) is restrictive and givesthat process a personal or individual character. The words,“where any person alleges that any such fundamental right or
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language right relating to such person has been infringed orabout to be infringed by executive or administrative action,he may himself or by an attorney-at-Law on his behalf,
within one month thereof. apply to the Supreme Court
(emphasis by me) as appearing in Article 126(2) amplydemonstrate the personal or individual character of the rightto institute proceedings in relation to the special jurisdictionvested in this court for the enforcement of fundamentaland language rights as declared and recognised by Chapters111 and IV of the Constitution. Hence a person who alleges aninfringement cannot stay his hand on the basis that theinfringement perceived by him is already before Court througha proceeding instituted by another similarly situated. If heelects to do so, he puts in peril the right he has in terms ofArticle 17 to apply to this Court in respect of the infringementof the fundamental right as alleged by him. This is a clearapplication of the maxim uegilantbus nor dormientibus, jurasubueniunt (the laws assist those who are vigilant, not thosewho sleep over their rights).
For these reasons, I uphold the preliminary objection oftime bar as to the infringement, that is alleged in respect of theappointment of the 9th Respondent as Deputy Chief LegalOfficer.
The other infringement alleged is in respect of theappointment of Ziyard as Supernumerary Deputy Chief LegalOfficer. The objection that is raised is that the application ismisconceived in this regard. Several arguments have beenraised on the question whether, this appointment madepursuant to a settlement entered in Court constitutesexecutive or admins trative action or is in the nature of judicialaction which is outside the jurisdiction of this Court in view ofArticle 126 of the Constitution.
The order made by this Court on 23.10.96 in.S. C. (FR)483/95 and 240/96 has been set out by me in its entirety ina preceding section of this judgment. It is clear that the Court
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has merely taken note of a settlement that has been enteredinto by the parties. It appears that the process involveselements of executive and administrative action on the onehand and judicial action, on the other. It is not necessary in thecontext of this application to dwell on this matter further. ThePetitioner's complaint is that the appointment of Ziyard asSupernumerary Deputy Chief Legal Officer without cancellingthe appointment of the 9th Respondent is arbitrary andcapricious and in violation of the provisions relating to thecadre of officers in the Bank and the procedures relevant toappointments. Although ex facie Ziyard has been given anappointment as Supernumerary Deputy Chief Legal Officer,an examination of the terms of settlement reveals that in effectwhat he has received is a retiral benefit. As noted above Ziyardreached the optional age of retirement when his applicationwas pending and was retired from the service of the Bank. Thesettlement effectively prevents him from functioning in theappointment which he received pro forma. The appointment atissue is nothing but a means of enhancing the benefits hereceives upon retirement. The Petitioner has not reachedthe optional age of retirement. He is thus not in the sameclass of persons as Ziyard and is precluded from allegingan infringement in relation to retiral benefits to which he isnot in any event entitled to. The application is thereforemisconceived in this respect.
Accordingly, I uphold the preliminary objections thathave been raised and dismiss the application and make noorder as to costs.
PERERA, J.I agree
GUNASEKERA, J.I agree
Preliminary objections upheld;
Application dismissed.