PERERA AND ANOTHER v. CYRIL RANATUNGA , SECRETARY DEFENCE AND OTHERS

003-SLLR-SLLR-1993-1-PERERA-AND-ANOTHER-v.-CYRIL-RANATUNGA-SECRETARY-DEFENCE-AND-OTHERS.pdf


SCPerera and Another v. Cyril Ranatunga, Secretary Defence and Others
39
PERERA AND ANOTHER
v.CYRIL RANATUNGA, SECRETARY DEFENCE AND OTHERS
SUPREME COURT.
FERNANDO J. KULATUNGA J. AND WADUGODAPITIYA J.
S.C. APPLICATION NO. 121/91.
MARCH 13th, 19th AND 24th, 1992.
Fundamental Rights – Scheme of promotion – Seniority and merit – Criteriaapplicable – Publicity for scheme of promotion – Article 12(1) of the Constitution.
The promotion of authorised officers of the Department of Immigration andEmigration was purported to be done on the basis of seniority and merit. Theactual appointments were made by the 2nd respondent who was the Controllerof Immigration and Emigration upon the recommendation of an Interview Boardafter a viva voce interview. The criteria and heads of assessment were as follows:
Seniority 15 marks
Personality 10 marks
Work performance based on number of detections 30 marks
Knowledge of Immigration & Emigration Law and practice25 marks
Capacity to make instant decisions on problems 20 marks
Held :
There were deficiencies in the criteria and heads of assessment.Performance, including "work, attendance and conduct*, efficiency, conscientious-ness, commendations, “attitude to the reputation of the service", and “the interestsof the Department" found no place in the scheme of marking.
Although “Work Performance" was the most significant criterion only'detections' over the preceding 5 year period were considered withoutconsideration for opportunities for detection during the preceding 5 years.
Another deficiency was in the weightage given to seniority. Obviously theweightage given to seniority vis-a-vis merit can vary. Less weight may legitimatelybe given where the post involves onerous responsibilities and requiresspecial skills and aptitudes – and, correspondingly, greater weightage givento “positive* merit, and the candidates skills and aptitudes. However, in a pro-motional scheme based on “seniority and merit*, in relation to the second lowestrung of the service, with restricted scope for promotion, 15% weightage forseniority is plainly unreasonable, and is tantamount to ignoring seniority.
In the absence of proof of ’substantial demerit’ against senior officers orconsiderations of special skills or aptitudes justifying the appointment of juniorofficers over their seniors, the test for selection should be the existence of theminimum competence in a candidate to discharge the duties of the higher post;and any officer having such competence would be entitled to appointment, inorder of seniority.
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The ad hoc procedure adopted by the Board was arbitrary, unpredictableand unguided by any rule or principle known in advance. It is very desirablethat all the criteria relevant to promotions should be publicized in advance sothat all candidates have equal opportunities of advancing their claims; the morecomplex the scheme, the greater the need for such publicity.
Material from the files of the officers or reports of the supervising officersor the individual assessments of the members of the Interview Board were notbefore Court.
The impugned promotions have been influenced by subjective criteria.
The petitioners have been denied the equal protection of the law and havebeen unequally treated on a basis which cannot be rationally justified.
Per Kulatunga, J. :
"the right to equality of opportunity in matters of public employment
(which Article 16(1) of the Indian Constitution expressly provides for) is implicitin our Article 12"
Cases referred to :
Buddhan Choudhry v. State of Bihar AIR 1955 S.C. 191.
Ram Krishna Dalmia v. Justice Tendolkar AIR 1958 S.C. 538.
Elmore Perera v. Major Montague Jayawickrema (1985) 1 Sri LR 285, 321.
Eheliyagoda v. J.E.D.B. and others F.R.D. Vol. 1 p. 243, 246.
Jaisinghani v. Union of India AIR 1967 S.C. 1427, 1431, 1434.
State of Mysore v. S.R. Jayaram AIR 1968 S.C. 346.
State of Mysore v. Krishna Murthy AIR 1973 S.C. 1147, 1150.
APPLICATION for relief for infringement of fundamental rights.
R.K.W. Goonesekera with L.C.M. Swarnadhipathi and J.C. Weliamuna forpetitioners.
A.S.M. Perera, D.S.G. for 1, 2, And 7 respondents.
No appearance for 3 to 6 respondents.
Cur. adv. vult.
May 27, 1992.
FERNANDO, J.
I have had the advantage of studying the judgment of my brotherKulatunga, and while agreeing with his conclusion, declaration andorder, I wish to set out my views on the important questions thatarise for decision in this case.
SC Perera and Another v. Cyril Ranatunga. Secretary Defence and Others
(Fernando. J.)41
The Department of Immigration and Emigration consists of theController, 4 Deputy Controllers, 32 Assistant Controllers, 20 SeniorAuthorised Officers, and 106 Authorised Officers. Senior AuthorisedOfficers are appointed by promoting Authorised Officers who haveten years of service (inclusive of service in a temporary or actingcapacity). Assistant Controllers are appointed by promoting SeniorAuthorised Officers or from among S.L.A.S. Officers from outside; butat any given time not more than six of the 32 Assistant Controllersshall be promoted Senior Authorised Officers. The Controller andDeputy Controller are always S.L.A.S. Officers. It is therefore arelevant consideration that Authorised Officers have limited prospectsof promotion as Senior Authorised Officers, and have little chanceof being appointed as Assistant Controllers.
It is common ground that the promotion of Authorised Officersas Senior Authorised Officers should have been on the basis of"seniority and merit", the actual appointments being made bythe 2nd Respondent, the Controller of Immigration and Emigration,upon the recommendation of an Interview Board after a viva voceinterview. The contention of learned Counsel for the Petitioners gaverise to the following questions:
1. What does "merit" mean in the context of "seniority and merit";
2(a) Whether the scheme of marking (namely, the criteria and theweightage for each criterion) adopted by the Interview Boardfor the purpose of assessing the candidates was a bona fideapplication of the "seniority and merit" principle, or wasdiscriminatory ;
2(b) Even if the scheme itself was valid and non-discriminatory,whether it was adequately publicised in advance, and duly andfairly applied at the interview.
1. "MERIT"
Learned Counsel for the Petitioner contended that in the public serviceboth principle and practice required that a senior officer be preferredto a junior officer, unless there was "substantial demerit"; upon joiningthe public service, an officer had definite expectations in respect ofsecurity of tenure, retirement, and promotion ; his "merit" was
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constantly and continuously assessed throughout his career, in thatincrements were granted not as a matter of course but only if theywere "earned1, as evidenced by a superior officer's certificate in regardto the diligent discharge of his duties ; and efficiency was periodicallytested by appropriate examinations ; censures and adverse commentshad to be recorded in his personal file. Reference was made to theEstablishments Code, Chap. 2, paras 10.1, 15.1, 15.2, and Chap 6.His submission was that one officer even marginally senior to anotherhad necessarily to be preferred, if there was no "substantial demerit"in his case, even if the junior officer was unquestionably superiorin “positive" merit – i.e. from the point of view of qualifications,performance, ability, and the like. He gave the example of the seniorofficer approaching retirement age as against a junior officer withmany more years to go: the promotion of the latter, on the basisof "positive" merit, would result in the frustration of the life-long hopesand expectations of a senior officer with an unblemished record. That,he said, was never done. He added, however, that "positive" meritcould be taken into account after promotion : if, for instance, therewere two vacancies, and both officers were promoted, the junior officercould be placed over the senior officer in the new post or grade,if superior on the basis of "positive" merit.
I do not think that the interpretation of the "seniority and merit"principle depends on, or should be influenced by, such examples.Every such example can be countered by another. The first examplecan be contrasted with the case of a senior officer, younger thana junior officer, the latter being overwhelmingly superior inqualifications, performance and ability. Would the failure to promotethe junior officer not only frustrate his expectations that outstandingservice would be recognised, but even act as a disincentive to othersas well? Apart from the expectations of public officers, would serviceto the public be improved or impaired by the failure to rewardmeritorious performance? The submission that "positive" merit canbe recognised immediately after, but not for, promotion, results inanomalies ; "positive" merit would not be recognised if there is onlyone vacancy; but it will be recognised if there are two or morevacancies, for then the more meritorious junior officer will be placedahead of the senior officer. If there are two vacancies not occurringsimultaneously, but within a few days of each other, if each vacancyis filled separately, the mediocre senior officer would retain seniority:but if the vacancies are considered together the meritorious junior
SC Perera and Another v. Cyril Ranatunga, Secretary Defence and Ohers
(Fernando, J.)43
officer would become senior. While subjective considerations are notirrelevant, the application of the "seniority and merit" principle cannotdepend wholly or mainly on subjective factors and fortuitouscircumstances.
The plain meaning of "merit" is the quality of deserving well,excellence, or worth; it is derived from the Latin "mereri", meaningto earn, or to deserve. In my opinion, "merit” must be consideredin relation to the individual officer, as well as the requirements ofthe post to which he seeks promotion. In relation to the individualofficer, there is a negative and a positive aspect: whether there isdemerit, e.g. incompetence and poor performance in his present post,and whether there is “positive" merit, such as a high degree ofcompetence and excellent performance. It would also be legitimateto consider the suitability of the officer for the post, having regardto the aptitudes and skills required for the efficient discharge of thefunctions of that post, and the service to be rendered. By way ofexample, an officer who has performed well at a “desk" job, involvinglittle contact with the public, may lack the qualities required for a postin the “field", or involving constant contact with the public, whereasa junior officer whose performance was only average at the "desk"job, may have all the aptitudes and skills required for duties in thefield, or involving the public. To ignore the requirements of the postand the needs of the public would be to permit the unrestrictedapplication of the "Peter principle" – that in a hierarchy a person willcontinue to be promoted until he reaches a level at which he is quiteincompetent. "Merit" thus has many facets, and the relativeimportance or weight to be attached to each of these facets, andto merit in relation to seniority, would vary with the post and itsfunctions, duties and responsibilities.
2. THE SCHEME OF MARKING, AND ITS APPLICATION
There is no material as to the scheme of marking adopted in previousyears. It is very likely that this particular scheme was adopted forthe first time for the 1991 interviews and promotions. It was notpublicised in advance. I set out below the scheme of marking, aswell as the marks obtained by the Petitioners and the eight officerswho were promoted (four senior, and four junior, to the Petitioners):
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Seniority15 marks Personality10 marks Work Performance(No. ofdetections)
30 marks Knowledge ofImmigration &Emigration Lawand Practice25 marks Capabilityof solvingproblemsinstantly20 marks Total
1. 13 4 (62) 15 8 10 50
2. 13 . 5 (40) 10 14 10 52
3. 13 5 (20) 5 11 16 50
4. 13 5 (96) 24 6 3 51
5. 1stPetitioner 12 4 (50) 12 8 4 40
6. 2ndPetitioner 12 6 (48) 12 8 4 42
7. 3rdRespondent 12 6 (85) 21 10 5 54
8. 4thRespondent 11 6 (158) 30 5 8 60
9. 5thRespondent 11 5 (120) 25 7 5 53
10. 6thRespondent 11 5 (150) 25 9 8 58
The 15 marks given for "Seniority" appear to have been allocatedat the rate of one mark for each year of service after confirmationas Authorised Officers. "Work Performance" was thus the most importantfactor, and was based exclusively on the number of detections madeduring the preceding 5 years. Although not stated by the Respondents,it would appear that one mark was given for every four detections,subject to a maximum of 30. However, there are two computationalerrors: on this basis the 5th and 6th Respondent should each havereceived 30 marks (and not 25 marks). If, as my brother Kulatungathinks, a greater number of detections were required from some juniorofficers, this would have been arbitrary.
SC Perera and Another v. Cyril Ranatunga, Secretary Defence and Others
(Fernando, J.)45
By letter dated 14.6.91 the Controller informed the Secretary,Defence, that in assessing the candidates, personality, work,attendance and conduct, conscientiousness and detections duringthe preceding five years, and commendations in their personal files,were given special consideration. These factors were taken intoaccount at the interviews in assessing their respective merits, andseniority was also considered. In another letter dated 18.7.91 to the1st Petitioner, the Controller stated that promotions cannot be madesolely on seniority; merit, conscientiousness, efficiency, and the attitudeof candidates to the reputation of the service and the discharge oftheir duties, had also to be considered; in addition, the interests ofthe Department were also given special consideration.
The Controller stated in his affidavit that:
"at the interview held the candidates are subject to a penetratinganalysis as to the ability and command in the enforcement ofvarious laws and circulars issued by the Department and howthey would react and cope in a given situation. Their personalfiles are made available to the members of the interview boardand the detections they have made and/or commendationsthey have received are taken into account. Also the majorityof the members who constituted the interview board consistof Senior Officers of the Department who are aware of theperformances of these candidates during the relevant period."
The Petitioners in their counter-affidavits averred that 15 candi-dates were interviewed within a period of 1 1/2 hours, and that eachcandidate was interviewed for approximately 3 minutes. Further, thequestions asked did not relate to knowledge of the relevant law andpractice, or the ability to solve problems; at the hearing before usit was not disputed that the interviews took only a few minutes, anddid not involve these aspects. It was urged, however, that as threeof the four members of the Interview Board were senior officers ofthe Department, they would have become quite familiar with theseaspects of the candidates knowledge and capabilities, in the courseof their normal work.
The criteria actually adopted for the 1991 interviews do not reflectmany of these factors. Performance, including "work, attendance andconduct", efficiency, conscientiousness, commendations, "attitude tothe reputation of the service", and "the interests of the Department"
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found no place in the scheme of marking ; although "Work,Performance" was the most significant criterion, with a weightageof 30%, only "detections" were considered thereunder.
A second deficiency in the scheme of marking is in regard to theweightage given to seniority. Obviously, the weightage given to seniorityvis-a-vis merit can vary. Less weight may legitimately be given wherethe post involves onerous responsibilities and requires special skillsand aptitudes – and, correspondingly, greater weightage given to“positive" merit, and the candidates skills and aptitudes. However,in a promotional scheme based on "seniority and merit", in relationto the second lowest rung of the service, with restricted scope forpromotion, 15% weightage for seniority is plainly unreasonable, andis tantamount to ignoring seniority. The arbitrariness of the schemein this respect is manifest : the 3rd Respondent was one year juniorto the first promotee, but 23 additional detections over a five yearperiod (carrying six extra marks), completely outweighed the latter'sadvantage based on seniority.
In fact eight extra detections were sufficient to displace and toreverse the effect of one year's seniority. Similarly, two extra marksearned for "personality" were sufficient to counter balance two yearsseniority as between the first promotee and the 4th Respondent. Theprinciple of "seniority and merit" implies that seniority will be givenmore or less equal consideration as merit, unless there was very goodreason for giving significantly higher weightage for "merit". Theweightage in fact given seems appropriate only in a scheme ofpromotion "based on merit, regard also being had to seniority".
It was argued on behalf of the Respondents that even if equalweightage had been given, the Petitioners would not have beenpromoted. It was suggested that the marks given for seniority bemultiplied by six, so that seniority would receive 90 marks out of atotal of 175. Each petitioner would thereby obtain 60 additional marks,bringing their total to 100 and 102 respectively. The first four promoteeswould obtain 65 additional marks, the fifth 60 additional marks, andthe last three 55 additional marks, and all eight would yet havemore marks than the Petitioners. However, this ignores the effect ofthe other defects in the scheme and its implementation. “WorkPerformance" gave no place to factors other than detections ; evencommendations were not explicitly recognised ; there was noevidence, and no averment, that all candidates had reasonably similar
SC Perera and Another v. Cyril Ranatunga, Secretary Defence and Others
(Kulatunga, J.)47
opportunities of making detections during the preceding 5 years.Even assuming that the weightage given to the other two criteria(relevant legal knowledge, and problem-solving capacity) wasfair – and the material placed before the court makes it clear thatthis was not assessed by viva voce interview – I am not satisfiedthat the candidates records were duly examined in regard to thisaspect. The Respondents have also furnished material in regard tothe linguistic and sporting abilities of the 3rd to 6th Respondents ;this was in reply to the Petitioners claim that they were graduates,while the 3rd to 5th Respondents had only G.C.E. (0./L.)qualifica-tions, and the 6th Respondent a G.C.E. (A./L.) qualification. Theseare not matters referred to in the scheme. While they have somerelevance, particularly if all other things are equal, it is very desirablethat all the criteria relevant to promotion should be publicised inadvance so that all candidates have equal opportunities of advancingtheir claims; the more complex the scheme, the greater the needfor such publicity.
It appears to me that the scheme of promotion was a bona fideattempt to give due recognition to merit. However, it was seriouslydeficient in respect of the criteria, and the weightage given to eachcriterion ; the application of the scheme ; and the lack of adequateadvance publicity. The Petitioners have therefore been denied theequal protection of the law, and have been unequally treated, on abasis which cannot be rationally justified.
The Petitioners expressly stated that they did not question theselection of the first four promotees; they were not made respondents,and were therefore unrepresented at the hearing. No stay order wasrequested or made in respect of their appointments.
For these reasons I agree that the fundamental rights of thePetitioners under Article 12 have been infringed, and that theappointments of the 3rd to 6th Respondents must be set aside, the1st and 2nd Respondents being free to make fresh appointments afterformulating a proper scheme of promotion consistent with Article 12.
KULATUNGA, J.
The two petitioners are Authorised Officers in the Department ofImmigration and Emigration. They complain that in the year 1991 theywere overlooked for promotion to the post of Senior Authorised Officer
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as against the 3rd, 4th, 5th and 6th respondents (Authorised Officers)all of whom though junior in service and with less experience in theDepartment, have been promoted and appointed to the higher post.The position of the 2nd respondent (the Controller of Immigration &Emigration) is that promotion of officers are effected not on the basisof seniority alone but on seniority and merit and that the impugnedappointments have been made accordingly. The petitioners challengethe validity of the selection of the said respondents for appointmenton the ground of discrimination inter alia, for the reason that suchselection has been made on the basis of subjective criteria ; andthe petitioners urge that such selection is violative of their rights underArticle 12(1) of the Constitution.
The learned Counsel for the petitioners submitted that in termsof the normal conditions of service of public officers which arerecognised by the provisions contained in the Establishments Codethe benefits of a public officer include the opportunity of advancementin the service and that in the normal course promotions should bemade on the basis of seniority ; and that if it is sought to deviatefrom this principle on considerations of merit in making promotions,it should not be done on the basis of vague criteria but on a schemeknown in advance or which can stand the scrutiny of Court ifselections are challenged.
It was also submitted that the cadre composition in the departmentalso requires that the petitioners should not have been overlookedfor promotion disregarding their seniority. Thus the departmentconsists of 1 Controller, 4 Deputy Controllers, 32 Assistant Controllers(of which 6 posts are filled by promotion of Senior Authorised Officers,the other posts being reserved for the Sri Lanka AdministrativeService), 20 Senior Authorised Officers and 106 Authorised Officers.So that if the petitioners are denied promotion to the rank of SeniorAuthorised Officer they may have to retire without reaching theposition of Assistant Controller which is the highest rung they mayaspire to reach. At this point it is relevant to note that the petitionershad been overlooked for promotion in 1990 also, along with severalother Senior Officers (who however have been selected for promotionin 1991) resulting in the petitioners having to lag behind for the secondtime. Each of them is 48 years of age and has served in thedepartment for 19 years as temporary Authorised Officer from 1972-1978 and in the permanent post of Authorised Officer from 1978.
SCPerera and Another v. Cyril Ranatunga, Secretary Defence and Others
(Kulatunga, J.)49
The learned Counsel for the petitioners initially submitted that inmaking promotions seniority should be followed in the absence ofsubstantial demerit appearing in the record of an officer's service.When we indicated that this formulation of the merit principle is notacceptable having regard to the general interests of the public service,learned Counsel did not press his submission but was content forthe purposes of this case to accept that seniority alone is not thetest and that promotions may be made on the basis of seniority andmerit. He also conceded that the concept of seniority and merit mayvary from department to department. However, he maintained thatthe scheme for selection should be known and not left to thesubjective determination of the interview board.
According to the scheme of recruitment (P1) Authorised Officerswho have completed 10 years of satisfactory service and who havepassed the first Efficiency Bar Examination are eligible to apply forpromotion to the post of Senior Authorised Officer. Service as aTemporary Authorised Officer is reckoned for the purpose ofcomputing the ten year period. Candidates are interviewed by aboard chaired by the 2nd respondent and appointed on therecommendations of the Board.
The petitioners state that in 1987 there were 7 vacancies andthat in 1989 there was one vacancy in the post of Senior AuthorisedOfficer which vacancies were filled by promoting Authorised Officersaccording to seniority. This is not denied by the 2nd respondent exceptthat he states that appointments are made according to seniority andmerit. However, in 1990 when 5 vacancies were filled only one ofthem was filled according to seniority. The balance 4 vacancies werefilled by appointing junior officers overlooking officers who were seniorto them. There were 19 applicants of whom 2 officers numbered14 and 15 in the schedule of applicants marked 2R5 (arrangedaccording to seniority) were absent. The petitioners appeared as Nos.10 and 12. On the basis of marks given at the interview (thebreakdown of which is not shown) the applicants Nos. 1, 3, 11, 13and 16 were appointed as Senior Authorised Officers.
The Authorised Officers Union by its letter addressed to the 2ndrespondent (P4) protested against the said appointments made inderogation of seniority and requested an interview to discuss thematter. The 2nd respondent replied stating that appointments are
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made on the basis of seniority and merit and added that no discussionof this subject was called for (P5). The petitioners state that theydid not pursue the matter in view of the fact that further vacancieswere due to arise in a few months.
In 1991,16 Authorised Officers including the officers who had beenoverlooked for promotion in 1990 applied for appointment as SeniorAuthorised Officers. They were interviewed by a board chaired bythe 2nd respondent, the other members of the board being a DeputyController of Immigration and Emigration, Senior Assistant Controllerof Immigration and Emigration and an Assistant Secretary/Ministry ofDefence. In the schedule of applicants marked 2R6 (arrangedaccording to seniority), Nos. 1 to 8 were the officers who had beenoverlooked in 1990. Of them No. 5 was absent. No. 6 had an orderagainst him stopping his increment for two years. The petitionersappear as Nos. 7 and 8. On the basis of marks given at the interview,the board recommended for promotion Nos. 1, 2, 3, 4, 9, 10, 12and 13 and they were appointed. In the result the petitioners havebeen overlooked again and 4 officers junior to them (3rd, 4th and6th respondents) have been appointed over them.
The petitioners do not object to the appointment of Nos. 1, 2,3, and 4 in 2R6 who are senior to the petitioners but object to theappointment of officers who are junior to the petitioners on the groundthat such appointment is discriminatory. The 2nd respondent statesthat on a correct assessment of seniority and merit, appointmentshave been lawfully made. The learned Deputy Solicitor General forthe respondents submitted on the basis of the 2nd respondent'saffidavit that the impugned appointments have been made on anassessment of the suitability of the applicants by senior officers inthe department who were acquainted with their competence and theirknowledge of the law and practice pertaining to their office; that theboard has adopted a scheme of marking, and the applicants havebeen selected for promotion on the basis of marks given to themand other considerations enumerated in the affidavit of the 2ndrespondent; and that as such the appointments cannot be challengedas being discriminatory. He contends that the petitioners are in effectinviting this Court to review the said appointments on their meritswhich is not the function of the Court in the exercise of its jurisdictionunder Article 126.
SC Perera and Another v. Cyril Ranatunga, Secretary Defence and Others
(Kulatunga J.)51
The question is whether the 3rd to 6th respondents have beenselected for promotion over the petitioners upon a reasonableclassification. The test of permissible classification is that it must befounded upon an intelligible differentia having a rational relation tothe object sought to be achieved. Buddhan Choudhry v. State ofBihar ; Ram Krishna Dalmia v. Justice Tendolkar(Z). It is thepetitioners case that they and the said respondents were all officersof the same class, eligible for promotion and were similarlycircumstanced ; and that the selection of the said respondents forpreferential treatment on the ground of merit is invalid. A determinationon this question can be made by applying the legal principles ondiscrimination to the facts of this case.
In Elmore Perera v. Major Montague Jayawickrema® Sharvananda,CJ said –
"The principle of equality before the law embodied in Article 12is a necessary corollary to the high concept of the Rule of Lawunderlying the Constitution".
He explained that the Rule of Law means, inter alia (a) thateverything must be done according to law (b) that government shouldbe conducted within the framework of recognised rules and principleswhich restrict discriminatory power. He added that the Supreme Courtis empowered to review and strike down any exercise of discretionby the Executive which exhibits discrimination and for that purposehas jurisdiction to invalidate any rule which would enable an authorityto discriminate or act arbitrarily.
In Eheliyagoda v. J.E.D.B. and Others w this Court invalidateda scheme for the reorganisation of service under the respondentBoard which was discriminatory and adversely affected the petitionersas employees of the Board. After making due allowance for the needto reorganise the existing administrative structure, WanasunderaJ. said –
"We are not satisfied that the determinations relating to the
petitioners are based on just and reasonable criteria. The discretionthat has been exercised in these cases is one that is unfettered,unregulated and without guidelines. There is also nothing in thematerial to show that the cases of the petitioners were considered
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on their merits and how their cases compared with those of theothers who obtained appointments and vice versa" (p. 247).
He also observed (p. 246) that when the material placed beforethe Court is sufficient to establish a prima facie case ofdiscrimination, the respondents must make an adequate disclosureof all materials which would justify the impugned act. In making itsdetermination, the Court derived assistance from several decisionsof the Indian Supreme Court on Articles 14 (right to equality) and16(1) (right to equality in matters of public employment) in the IndianConstitution.
In Jaisinghani v. Union of India(5> the Court examined the validityof Income Tax Officers Service Recruitment Rules which providedfor recruitment to Class I Grade II of the service by direct recruitmentthrough a competitive examination and promotion from Class II GradeIII in the proportion to be fixed by the government. The rules alsolaid down the principle for determining the relative seniority of officersso recruited, the promotees being at an advantage. The Court upheldthe scheme for recruitment from two sources. The reason forthe classification was the objective of filling the higher echelons ofthe Income Tax Service by experienced officers possessing notonly a high degree of ability but also first rate experience. The Courtobserved –
“The concept of equality in the matter of promotion can bepredicated only when the promotees are drawn from the samesource. If the preferential treatment of one source in relation tothe other is based on the differences between the said twosources, and the said differences have a reasonable relation tothe nature of the office or offices to which recruitment is made,the said recruitment can legitimately be sustained on the basisof a valid classification" (p. 1431).
The Court, however, struck down the recruitments by promotionmade in excess of the quota fixed under the rules as being violativeof Article 16(1) holding that the quota rule is linked up with the seniorityrule and should be strictly observed. Once the government fixed thequota under the rule it had no discretion to alter it according to theexigencies of the situation at its own will and pleasure. The Courtalso observed –
SC Perera and Another v. Cyril Ranatunga, Secretary Defence and Others
(Kulatunga J.)53
“In this context it is important to emphasize that the absenceof arbitrary power is the first essential of the rule of law uponwhich our whole constitutional system is based. In a systemgoverned by rule of law, discretion, when conferred upon executiveauthorities, must be confined within clearly defined limits. Therule of law from this point of view means that decisions shouldbe made by application of known principles and rules and, ingeneral, such decisions should be predictable and the citizenshould know where he is. If a decision is taken without anyprinciple or without any rule it is unpredictable and such a decisionis the antithesis of a decision taken in accordance with the ruleof law" (p. 1434)
In State of Mysore v. S.R. JayaramlG) the Court considered thevalidity of a rule relating to recruitment of officers to the Civil Serviceby an open competitive examination. Rule 9(2) of the RecruitmentRules relied upon by the government read –
"While calling for applications the candidates will be asked toindicate their preferences as to the cadres they wished to join.The government however, reserves the right of appointing toany particular cadre, any candidate whom it considers to be moresuitable for such cadre".
The petitioner who was placed fourth in the order of merit atthe examination indicated a preference for the post of AssistantCommissioner in the Administrative service which had better prospectsthan the other available post namely, Assistant Controller in theState Accounts Service. The government, however, assigned him tothe latter post. The Court struck down the last part of Rule 9 (2)which gave a discretion to the government to appoint a candidateto a particular cadre regardless of his preference and merits. TheCourt observed that Rules 1-8, 9 (1) and the first part of Rule 9(2) aimed at ensuring the equality of opportunity in the matter of employmentand obtaining the service of the most meritorious candidates ;and that once a candidate is selected by examination as being suitablefor all the cadres, the government cannot, in the absence of specificprovision or other material, arrogate to itself an arbitrary power todecide his suitability for a particular cadre in derogation of his justclaims for recruitment to offices under the State.
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In State of Mysore v. Krishna Murthy (7) the question related tothe validity of a rule relating to a division into two classes of membersof the same service belonging to the same cadre for purposes oftheir promotion upon a reorganization of the service. In striking downthe inpugned rule the Court said –
"inequality of opportunity of promotion, though not uncon-
stitutional per se, must be justified on the strength of rationalcriteria correlated to the object for which the difference is made.In the case of government servants, the object of such differencemust be presumed to be a selection of the most competentfrom amongst those possessing qualifications and backgrounds
entitling them to be considered as members of one classif
the facts of a particular case disclose no such rational distinctionbetween members of what is found to be really a single classno class distinction can be made in selecting the best", (p. 1150)
The learned Counsel for the petitioners draw our attention tocertain provisions contained in chapters II, VI and VII of theEstablishments Code Vol. 1 (1985) issued under the authority of theCabinet of Ministers (by virtue of Article 55(4) of the Constitution).He submitted that these provisions are aimed at ensuring fairnessin matters relating to public officers and preclude the exercise of widediscretionary power in such matters. He further submitted that all suchprovisions including those relating to promotion encompass the spectrumof a public officer's rights. The said provisions relate to subjects suchas the procedure for appointment and promotion, confirmation inappointment, seniority, Efficiency Bar, departmental examinationsincluding for promotion, confidential reports, salary (includingincrement, and the suspension, stoppage and deferment thereof) etc…
Article 55(4) of the Constitution states –
"Subject to the provisions of the Constitution, the Cabinet ofMinisters shall provide for and determine all matters relating topublic officers, including the formulation of schemes of recruitmentand codes of conduct for public officers, the principles to befollowed in making promotions and transfers, and the procedurefor the exercise and the delegation of the powers of appointment,transfer, dismissal and disciplinary control of public officers".
SCPerera and Another v. Cyril Ranatunga, Secretary, Defence and Others
(Kulatunga, J.)55
This is a constitutional recognition of the concept of the Ruleof law, in particular, that government should be conducted within theframework of recognized rules and principles and that, in general,decisions should be predictable and the citizen should know wherehe is which in turn restricts arbitrary action or discrimination. Therelevant provisions of the Establishments Code are in conformitywith this concept and through Article 55(4) are made complementaryto Article 12. In this context it would be true to state that the rightto equality of opportunity in matters of public employment (whichArticle 16(1) of the Indian Constitution expressly provides for) isimplicit in our Article 12.
It should not be understood from the above discussion that therule of law requires that every decision must be supported on thebasis of a written rule. Thus there are (unwritten) discretionary powerswhich are implicit in the process of government to which no con-stitutional objection may be taken provided, however, that suchexercise is fair, predictable and free from arbitrariness or discrimi-nation. Thus notwithstanding the absence of express provision forpromoting public officers on the basis of seniority and merit, promotionon that principle is indeed lawful provided, however, that the powerto make such promotion is exercised without discrimination violativeof Article 12 of the Constitution. This is supported by dicta containedin the judicial decisions cited above.
It is common ground that the petitioners and the 4 respondentswho were promoted over them were all eligible for promotion underthe scheme P1. This would mean that each of them being anAuthorised Officer had –
completed 10 years of satisfactory service (for the computationof which any period of service as a temporary Authorised Officeris reckonable) ;
passed the first E.B. Examination.
As for the method of selection for promotion, all that the schemestates is that the applicants will be subjected to an interview bya board chaired by the 2nd respondent and on the recommendationof the board the appointments will be made. There is no rulespecifying the criteria for selecting officers for appointment when thereare more applicants than vacancies (as happened in 1991) there
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being 16 applicants for the filling of 08 vacancies. Of them, 15attended the interview. These applicants were all drawn from the samesource and the petitioners contend that they (the petitioners) andthe respondents who were promoted over them were similarlycircumstanced ; that the selection of the said respondents who werejunior to the petitioners was not based on rational criteria ; that inthe normal course the petitioners should have been appointed SeniorAuthorised Officers over the said respondents, on the basis of seniorityand merit, and that their exclusion constitutes an exercise ofarbitrary power in subjective terms, without sufficient safeguards.
The petitioners state that the 1st petitioner holds the Degreeof Bachelor of Arts from the University of Ceylon (Colombo) and the2nd petitioner holds a Special Degree in Public Administration fromthe Vidyodaya University whereas the highest educational qualificationof the 3rd, 4th and 5th respondent is G.C.E. (O.L.) Examination andthe highest educational qualification of the 6th respondent is G.C.E.(A.L.) Examination ; that each of the petitioners had 19 years ofeligible service for promotion whilst the 3rd and the 4th respondentshad 17 years and the 5th and the 6th respondents had 12 yearsonly at the time of their appointment ; and that the petitioners haveno adverse entries in their personal files and have earned their salaryincrements regularly. All these averments are admitted by the 2ndrespondent except that on the question of service he makes a pointof the fact that the petitioners had been initially appointed temporaryAuthorised Officers and were made permanent only in 1978. Thisfact does not help the 3rd to the 6th respondents because a partof their period of eligible service too had been spent as temporaryAuthorised Officers. On these facts it is the petitioners claim that theyhad the superior claim for promotion over the said respondents ongrounds of seniority, educational qualifications and experience.
The position of the 2nd respondent is that at the interview theapplicants were subjected to a penetrating analysis on the relevantlaws and departmental circulars and their competence. The board alsohad their personal files which contain a record of their work andcommendations. On the basis of the performance of the applicantsat the interview, marks were assigned to each candidate and the finalselection was made on the basis of such marks. The petitioners filedcounter affidavits stating that each candidate was questioned for 3or 4 minutes only and that from the type of questions asked it was
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Perera and Another v. Cyril Ranatunga,
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57
not possible for the board to have made a penetrating analysis ofthe competence of the applicants as claimed by the 2nd respondent.Learned Deputy Solicitor General very properly did not contest thisposition. He, however, emphasized the fact that the interview boardconsisted of very senior officers of the department who knew therelative merits of the applicants on the basis of their performanceover the years ; and that the impugned appointments have been madein the best interests of the department and hence the selections madeby the board should be accepted by this Court.
Particularly in view of the fact that no mala tides have been alleged,I am prepared to accept the submission that the board may well havebelieved that the impugned appointments were in the best interestsof the deparment. But the question we have to decide is not merelywhether the appointments made were in the best interests of thedepartment but whether the selection of officers for that purpose wasfree from discrimination in the light of the legal principles whichI have set out above. This would require a closer examination ofthe procedure followed by the board.
In examining the procedure followed by the board, I have takeninto consideration the following matters
It has not been alleged that the petitioners were overlooked onthe ground of substantial demerit e.g. censures or adversecomments recorded in their personal files.
No material has been placed before us to establish
that the functions in the post of Senior Authorised Officerare such as to require it being filled by experiencedofficers possessing a high degree of ability and firstrate experience ; Vide Jaisinghani's case (supra) ; or
That there is any special consideration, in the light of which,the 3rd to the 6th respondents were selected for promotionover the petitioners e.g. that as against the petitioners thesaid respondents possess some special competenceor aptitude which is indispensable for the efficientperformance of the functions in the higher post.
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It is my view that if it can be established that senior officersare adversely affected by any such consideration as indicated above,junior officers who are not so affected and possessing the requisitequalifications, competence or aptitudes, may constitute a class forpurposes of promotion, to the exclusion of their seniors. If not, thetest for selection should be the existence of the minimum competencein a candidate to discharge the duties of the higher post; and anyofficer having such competence would be entitled to appointment, inorder of seniority.
In the instant case, we are told that the selection was effectedon the basis of marks. The scheme of recruitment does not providefor this; nor is the marking according to any approved rule or principle.It has been done on an ad hoc scheme adopted by the Board. Inthe schedule for 1990 (2R5) only the total marks earned by eachcandidate is shown without a break down. In the schedule for 1991(2R6) totals as well as the basis of marking are shown. The principlewhich has been consistently followed is that only the candidates whohad obtained 50 marks and over were selected for promotion. Onthat basis, 5 appointments were made in 1990 overlooking 9 officersincluding the petitioners who were senior to the officers selected forpromotion. In 1991, 8 appointments were made including 4 of theseniors who had been overlooked in the previous year; but once again3 senior officers including the petitioners were overlooked for pro-motion.
The allocation of marks in 1991 was made on the basis of 100marks for a candidate made up as follows
Seniority15
Personality10
Work performance based
on the numberofdetections30
Knowledge of Immigration &
Emigration Law&Practice25
Capacity to make instant
decisions on problems20
At the interview, marks were given only for the detections madeduring the 5 years immediately preceding the date of the interview.Marks for detections appear to have been assigned on the formulaof 1 mark for 4-6 detections depending on the seniority of the candidate.Marks for seniority appear to have been assigned on the formula
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59
of 1 mark for each year of permanent service. On this basis, themaximum marks earned by any candidate on account of senioritywas 3. The candidates earned 5-30 marks each on account ofdetections, the 2nd and the 3rd candidates who were selected forpromotion receiving only 10 and 05 marks, respectively on thataccount. They were able to secure a pass for selection in view ofthe high marks given to them for their knowledge of law and practiceand the capacity to make instant decisions on problems. The 3rdto the 6th respondents received the bulk of their pass marks onaccount of detections. They earned very poor marks for their knowl-edge of law and practice and the capacity to make instant decisionson problems.
Each of the petitioners earned 12 marks for seniority and 12 marksfor detections. However, they were not given sufficient marks in otherrespects and were therefore unsuccessful. They earned more marksfor their knowledge of law and practice than the 4th and the 5threspondents who (according to the marks) were very poor in thatsubject as well as in their capacity to take instant decisions onproblems.
The 2nd respondent seeking to justify the impugned appointmentsstates that the 3rd to the 6th respondents had many more detectionsto their credit than the petitioners and that the overall performanceof the said respondents was better than that of the petitioners.
He also states that the 3rd and 4th respondents are outstandingsportsmen and speak English very fluently and that the 5th respondenthas " a pleasing personality" and is "a dedicated worker" whilst the6th respondent “has a very commanding ability and a pleasingpersonality". In this connection it is relevant to note that themaximum marks obtained by the successful candidates forpersonality are in the range of 4-6 marks (out of 100) and the 5thand the 6th respondents obtained 5 marks each on that account whilstthe 1st and the 2nd petitioners obtained 4 and 6 marks respectively.
The above facts are self explanatory on the question whether thepetitioners have been overlooked for promotion on the basis of areasonable classification. Firstly, the weightage given to seniority atthe interview was 15% which is woefully inadequate and would makethe concept of seniority in service meaningless when it comes to
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promotion. Secondly, the ad hoc procedure adopted by the Boardwas arbitrary, unpredictable and unguided by any rule or principleknown in advance. Thirdly, no material has been placed beforeus either from the personal files of the petitioners or from supervisingofficers who had the opportunity of monitoring their progress in thedepartment in support of the allegation that their knowledge of lawand practice and the capacity to take instant decisions on problemswere poor. It is also not known how individual members of the boardassessed each of these candidates. Finally, the available evidencesupports the citicism that the impugned promotions have beeninfluenced by subjective criteria.
In effecting promotions, the State is entitled to take intoconsideration seniority and merit but without violating the right to equalprotection of the law. The service of most public officers is life-timeand the guarantee of fair treatment to them enshrined in Article 12(1) of the Constitution would, if properly enforced, also help inmaintaining a contented public service which is vital for its efficientfunctioning. I determine that on the facts of this case, the rights ofthe petitioners under Article 12(1) have been infringed by reason ofthe impugned promotions and grant them a declaration accordingly.
On the basis of my finding that the procedure adopted by theboard for effecting promotions was discriminatory, I would ordinarilyhave set aside all the appointments made in 1991 as beinginvalid. However, the petitioners have averred that they are notquestioning the appointments of Messrs Sivuratne, Thalgaspitiya,Rajapakse and Ratnayake who were the most senior officersamong the candidates. Consequently, the petitioners have not madethe said officers parties to these proceedings ; and no interim orderhas been granted by this Court staying the operation of theappointments which have been effected. In these circumstances, Iset aside the appointments of the 3rd, 4th, 5th and the 6threspondents only and direct the 1 st and 2nd respondents to take stepsafresh for making appointments to the posts of Senior AuthorisedOfficers in the department, according to law. I also direct the Stateto pay each of the petitioners a sum of Rs. 2500/- (Rupees TwoThousand Five Hundred) as costs.
WADUGODAPITIYA, J. – I agree.
Relief granted.