004-SLLR-SLLR-1994-V2-PIYASENA-AND-ANOTHER-V.-THE-PEOPLES-BANK-AND-OTHERS.pdf
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Piyasena and Another v. The People’s Bank and Others
65
PIYASENA AND ANOTHER
v.
THE PEOPLE’S BANK AND OTHERS
SUPREME COURT.
FERNANDO. J.
AMERASINGHE, J. ANDGOONEWARDENA, J.
S.C. APPLICATION NO. 359/93JULY 20TH AND 21ST. 1994.
Fundamental Rights – Criteria lor selection for promotion – Need for publicity tobe given for criteria – Seniority – Marking Scheme – Violation of the fundamentalright of equality guaranteed by Article 12(1) of the Constitution.
By means of individual letters the 1st respondent (People’s Bank) invited itsofficers in Grade I to apply for an unspecified number of vacancies in its cadre ofAssistant General Managers. Each applicant was asked to submit a shortpresentation regarding his achievements in his present post together withstrategies he would recommend to the Bank for its further development ifpromoted. Nothing else was stated about the criteria for selection. There were 32applicants: the two petitioners, the 4th to 11th respondents and 22 others. TheBoard of Directors interviewed the applicants. The 11th respondent, himself anapplicant, was the Secretary to the Board and though interviewed was notassessed as he was functioning as Secretary. On the basis of a Board paper healso was promoted. The marking assessment scheme was formulated by theInterview Board under the heads of Academic qualification (5 marks),Professional qualifications in Banking (10 marks), Performance in the PresentGrade (50 marks), Performance at the Interview (25 marks), Seniority (5 marks).Additional qualifications/Achievements (5 marks).
Held:
It is very desirable, though perhaps not imperative, that all the criteria relevantto promotion should be publicised so that all candidates have equal opportunitiesof advancing their claims; and the more complex the scheme, the greater theneed for such publicity. Where some special skill or quality is required a fairselection process demands that it be made known in advance. The letters sent tothe candidates would naturally have led them to believe that their presentationswere important, and would be taken into consideration; suth presentations wereindeed relevant, and quite appropriate, to determine suitability for promotion totop management posts; and it is one of the many unsatisfactory features of theselection process that no attempt was made to assess the accuracy and qualityof the achievements claimed, and the feasibility and usefulness of the ‘strategies'suggested by them. Consequently, candidates were misled.
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In the scheme of assessment the attitude to seniority was unsatisfactory intwo respects. Seniority is an objective factor, while assessment of performance,whether in service or at an interview, is quite subjective. Giving seniority only 5marks out of 100 amounted, in the circumstances, to ignoring seniority unlike inthe past.
The Bank was undoubtedly entitled to change the basis of promotion, andminor changes probably required no prior disclosure. However, a drastic change,whereby the subjective factor almost completely superseded the objective factor,required adequate disclosure. To hold otherwise would permit a scheme ofpromotion to be secretly varied, from year to year, by successive interview boardsto the detriment of employee morale and performance. This was anotherunsatisfactory feature of the selection process.
While the Court should not set aside a scheme of marking merely because itentertains a different opinion as to the relative weight due (a) for academic asagainst professional qualifications or (b) for qualifications in one discipline ascompared to another, here the scheme is seriously flawed because it did notallow relevant qualifications to be considered at all.
Regarding the interview performance, time taken for each interview namely10 to 15 minutes is not inadequate. There is no suggestion that the questioningdisplayed any bias or other llaw.
If the marks allocated for interview performance are relatively low the lack ofguidelines may not cause serious concern and review of a bona fide exercise ofdiscretion may be well – nigh impossible.
In this case selection depended mainly on the interview (which carried 75%of the marks), for there is nothing to suggest that past performance (in the grade)was separately assessed, either before or after the interviews. It was impossibleto ensure that marks were allocated by each interviewer with some degree ofuniformity, and fairness, unless there had been some indication, at least in ageneral way, of the factors relevant to each criterion. This is not to say that a strictallocation of marks for each such factor was necessary; especially at this level ofmanagement that would unduly constrict a fruitful selection process. A properselection need not necessarily incorporate a marking scheme; but if the selectionis to be on the basis of marks, then the scheme must be clear, fair and uniform.
That these deficiencies could cause serious and unexplained anomalies isclear from the marks obtained by the 9th and 10th respondents as against the 1stpetitioner. These two respondents had only the G.C.E. O/l (no marks) and partBanking qualifications (5 marks) while the 1st petitioner had a B.Com. uppersecond degree (5 marks) and part Banking qualifications (7 marks). Thatadvantage of 7 marks was negatived by the assessment of past performance.
SC Piyasena and Another v. The People's Bank and Others (Fernando, J.)67
While for seniority and qualifications the marking was generally in multiples offive. In the absence of proper guidelines, one cannot overlook the possibility thatthe 1st petitioner was not duly assessed. The position becomes even moreunsatisfactory when we find that out of only six candidates who were apparentlyassessed with greater precision, three were selected. It becomes impossible togive the interview board the benefit of the doubt when the statistical possibilitiesare considered.
The cumulative effect of all these defects is that the whole interview andselection process was fatally flawed and infringed Article 12(1).
Cases referred to:
Perera v, Ranatunga S.C. 121/91 – S.C. Minutes of 27,05.92.
Perera v. Monetary Board S.C. 246/93 – S.C. Minutes of 01.11.94.
Application for relief for violation of the Fundamental Right of equality guaranteedby Article 12(1) of the Constitution.
R. K. W. Goonesekera with R. K. S. Suresh Chandra for the Petitioner.
Asoka de Silva DSG with E Egalahewa S.C. for 1st, 2nd and 3rd Respondents.
Cur. adv. vutt.
November 04 1994.
FERNANDO, J.
This application was heard together with S.C. Application No.291/93 as similar questions of law and fact were involved; judgmentin that application was delivered on 14.10.94.
By means of individual letters dated 15.3.93. the 1st RespondentBank invited its Officers in Grade 1 to apply for an unspecifiednumber of vacancies in its cadre of Assistant General Managers.Each applicant was asked to submit a “short presentation in regardto (his) achievements {in his present post) together with strategies(he) would recommend to the Bank for its further development” ifpromoted.
Nothing else was stated about the criteria for selection. There werethirty-two applicants: the two Petitioners, the 4th to 11thRespondents, and 22 others. The applicants were interviewed on
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22.5.93, by the Board of Directors of the Bank (including the 2ndRespondent, the Chairman of the Board), and the 3rd Respondent(the General Manager). The 4th to 10th Respondents were appointedimmediately. The 11th Respondent is the Secretary to the Board, andthough interviewed like the others was not assessed as he wasfunctioning as Secretary; on the basis of a subsequent Board paper,the Board decided on 8.7.93 to promote him too. The Petitioners filedthis application on 5.8.93, complaining that these appointments werein violation of their fundamental right to equality under Article 12(1).
INFRINGEMENT OF ARTICLE 12(1)It is admitted that the criteria for selection had not been disclosedin advance. The Petitioners complain that even now it is not clearwhat those criteria were, and how they were actually applied. It isvery desirable, though perhaps not imperative, that all the criteriarelevant to promotion should be publicised so that all candidateshave equal opportunities of advancing their claims; and the morecomplex the scheme, the greater the need for such publicity (Pererav. Ranatungam; Perera v. Monetary Board™). However, where somespecial skill or quality is required, a fair selection process demandsthat this be made known in advance. Here the letters sent to thecandidates would naturally have led them to believe that theirpresentations were important, and would be taken into consideration;such presentations were indeed relevant, and quite appropriate, todetermine suitability for promotion to top management posts; and it isone of the many unsatisfactory features of the selection process thatno attempt was made to assess the accuracy and quality of the"achievements’ claimed, and the feasibility and usefulness of the“strategies" suggested, by them. Consequently, candidates weremisled.
Further, Mr. Goonasekera submitted that although seniority hadalways been an important, and even a predominant factor in thepast, it had been given grossly inadequate consideration on thisoccasion. In his affidavit, the 2nd Respondent averred that senioritywas never the sole criterion for promotion to corporate managementpositions.
SC Piyasena and Another v. The People's Bank and Others (Fernando. J.)69
The marking scheme for these promotions was as follows:
Academic Qualifications5 marks
Ordinary DegreeSecond Class Lower DivisionSecond Class Upper Divisionor First Class
marks
marks
marks
Professional Qualifications in Banking10 marksPart I- 5 marks
Part I and Section I of Part II- 7 marks
Full professional Qualifications-10 marks
Performance in the Present Grade50 marks
Performance at the Interview25 marks
Seniority & additional qualifications/achievementsSeniority5 marks
Additional qualifications/achievements5 marks
100 marks
It was the interview board which formulated a "scheme ofassessment”; its attitude to seniority is unsatisfactory in two respects.Seniority is an entirely objective factor, while assessment ofperformance, whether in service or at an interview, is quitesubjective. Giving seniority only five marks out of 100 amounted, inthe circumstances, to ignoring seniority (Perera v. Ranatunga,1)). TheBank was undoubtedly entitled to change the basis of promotion, andminor changes probably required no prior disclosure. However, adrastic change, whereby subjective factors almost completelysuperseded this objective factor, required adequate disclosure. Tohold otherwise would permit a scheme of promotion to be secretlyvaried, from year to year, by successive interview boards, to the
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detriment of employee morale and performance. This was anotherunsatisfactory feature of the selection process.
The 2nd Respondent produced the interview schedule, preparedbefore the interviews. This contained the service record and theacademic and professional qualifications of each candidate, as wellas a column indicating whether he had participated in a“Management Development Programme”; it did not make referenceto any other criteria. The Respondents’ pleadings, documents andsubmissions do not indicate what importance was attached toparticipation in the Management Development Programme, for whichno marks appear to have been allocated. The Respondents did notproduce the individual marking sheets which members of theinterview board had entered contemporaneously during theinterviews. So we do not know whether each member followed thisscheme of assessment; and if he did, how many marks he gave eachcandidate in respect of each criterion. They produced only the finalresults sheet (2R4), setting out the marks (presumably the average)scored by each candidate in respect of each criterion, and asummary (2R4A) giving the candidates and their aggregate scores inorder of merit. This summary showed that the 9th Respondent hadscored 76 marks, the 4th to 8th and 10th Respondents had scored 75marks, and the 1st Petitioner 74 marks.
It transpired in S.C. Application No. 291/93 that more marks (25%)were given for educational and professional qualifications, in thepromotions to Deputy General Manager, than the 15% given in thesepromotions. One would have expected the converse: the higher onegoes up the ladder, the less the weightage for such qualifications.Further, regarding professional qualifications, it is not easy tounderstand how the Banking qualifications (Part I) were assessed at5 marks, while relevant academic qualifications (such as a first classdegree in Law, or Economics, perhaps with Banking as a specialsubject) were considered to be worth only 5 marks; and why otherrelevant (and even full) professional qualifications, in relevantdisciplines such as Accountancy and Law, were excluded fromconsideration. That exclusion becomes inexplicable since a firstdegree in quite unrelated fields, could earn 3 to 5 marks. I
SC Piyasena and Another v. The People's Bank and Others (Fernando, J )71
acknowledge, unreservedly, that this Court should not set aside ascheme of marking merely because it entertains a different opinion asto the relative weight due (a) for academic as against professionalqualifications, or (b) for qualifications in one discipline as comparedto another. But here the scheme is seriously flawed because it did notallow relevant qualifications to be considered at all.
I must turn now to “interview performance.” According to thePetitioners, the time taken for each interview ranged from ten tofifteen minutes, which I do not consider inadequate. It appears thatthe presentations were used as the basis of questioning at theinterviews. The Petitioners have produced summaries of some of thequestions and answers. There is no suggestion that the questioningdisplayed any bias or other flaw.
However the assessment of performance was flawed. Neither inthe affidavits nor in the submissions was there any clarification, evenby reference to broad guidelines, as to how the 75 marks forperformance (25 for the interview, and 50 for performance in thegrade) were to be allotted. Undoubtedly, assessment of interviewperformance is necessarily very subjective: thus it may happen that a.candidate who is favourably assessed by one interviewer as “havinggood communication skills" may be dismissed by another as"nothing more than a glib talker." If the marks allocated for “interviewperformance” are relatively low (e.g. 15% or 20% of the total), thelack of guidelines may not cause serious concern, and review of abona fide exercise of discretion may be well-nigh impossible.However, in this case, selection depended mainly on the interview(which carried 75% of the marks), for there is nothing to suggest thatpast performance (in the grade) was separately assessed, eitherbefore or after the interviews. It was impossible to ensure that markswere allocated by each interviewer with some degree of uniformity,and fairness, unless there had been some indication, at least in ageneral way, of the factors relevant to each criterion, I must not beunderstood as suggesting that a strict allocation of marks for eachsuch factor was necessary; especially at this level of managementthat would unduly constrict a fruitful selection process. For example,one or two extraordinarily innovative strategies for development might
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win one candidate full marks for interview performance, just as aserious deficiency in management capabilities may lead to theconclusion that any further promotion of another candidate would bedetrimental to the institution. I am also not of the view that a properselection process must necessarily incorporate a marking scheme;but if selection is to be on the basis of marks, then the scheme mustbe clear, fair, and uniform.
That these deficiencies could cause serious and unexplainedanomalies is clear from the disparity in the marks obtained by the 9thand 10th Respondents as against the 1st Petitioner. Those twoRespondents had only the G.C.E. “O” Level (no marks) and partBanking qualifications (5 marks) while the 1st Petitioner had a B.Com.upper second degree (5 marks) and part Banking qualifications (7marks). That advantage of 7 marks was negatived by the assessmentof “performance.” The 9th Respondent scored 45 and 20, and the10th Respondent scored 45 and 23, for performance, while the 1stPetitioner scored only 35 and 20. This may have been ignored, butfor one curious feature. While for seniority and qualifications themarking was fine tuned to within one or two marks, when it came toperformance, marking was generally in multiples of five; for allcandidates except the 4th and 6th Respondents and one othercandidate (in regard to performance in the grade), and all except the4th, 6th, and 9th Respondents, and three others (in regard tointerview performance). Had the 1st Petitioner managed to score oneor two marks more for performance, or if the successful candidateshad scored one or two marks less, the 1st Petitioner would have beenselected. In the absence of proper guidelines, one cannot overlookthe possibility that the 1st Petitioner was not duly assessed. Theposition becomes even more unsatisfactory when we find that out ofonly six candidates who were apparently assessed with greaterprecision, three were selected. It becomes impossible to give theinterview board the benefit of the doubt when the statisticalpossibilities are considered. If the eight members of the interviewboard had individually assessed the performance of each candidate,and thereafter the results sheet 2R4 had been prepared to reflect theaverage scores, it is impossible for 50 scores out of 60 to have beennot merely whole numbers, but multiples of five – because the
SCPiyasena and Another v. The Peopled Bank and Others (Fernando, J.)73
averages would have been multiples of five, only if the aggregateshad been multiples of forty. On the other hand it is neither suggested,nor credible, that 2R4 represented a joint assessment by all eightmembers.
The 11th Respondent was called for the interviews along with theothers; there was no valid reason for not assessing him by referenceto the criteria applied to the others. The fact that members of theBoard knew him much better than the other candidates was not areason for dispensing with an assessment.
The cumulative effect of all these defects is that the wholeinterview and selection process was fatally flawed, and infringedArticle 12(1).
I hold that the fundamental right of the Petitioners under Article12(1) has been infringed by the 1st Respondent Bank. The Bank isdirected to hold fresh interviews, after calling for fresh applications ifit thinks fit, on the basis of a published scheme of promotion.Although the Petitioners have not proved that they have sufferedactual pecuniary loss, because there was no certainty of theirpromotion, yet they are entitled to compensation for the infringementof their fundamental right to equality, by reason of the defectiveselection process. I therefore direct the 1st Respondent Bank to payeach of the Petitioners a sum of Rs. 10,000 as compensation andRs. 5,000 as costs.
AMERASINGHE, J. – I agree.GOONEWARDENA, J. – I agree.Relief granted.