Weerasinghe v. De Silva (Bandaranayake, J.)
JAYAWARDENE, SECRETARY, MINISTRY OF TRANSPORT ANDHIGHWAYS AND OTHERS
S.C. APPLICATION NO. 90/91OCTOBER 27.1992.
Fundamental Rights – Constitution. Article 12 – Equality – Promotion.
The petitioner and 3rd respondent were not equally circumstanced. The 3rdrespondent was qualified for promotion but the petitioner was not.
Per Amerasinghe, J.
“To treat the petitioner and 3rd respondent as equally entitled to promotion wouldbe improper for it would result in treating unequals equally. This would be asunjust as treating equals unequally."
Sri Lanka Law Reports
 2 Sri LR.
APPLICATION for relief for infringement of fundamental rights.
Colin Senerath – Nandadewa for petitioner.
Douglas Premaratne, P.C. Additional Solicitor-General with Mrs. BimbaTilakaratne, S.C. for 1st and 2nd respondents.
Cur. adv. vutt.
October 27, 1992.
We have heard learned Counsel for the petitioner in support of thispetition. This Court is, inter alia, requested to make order declaringthat the petitioner is entitled to promotion to Class I of the MiddleLevel Technical Service from 11.6.1984 and to promotion as DrawingOffice Assistant from 22.8.1989. The petitioner also requested thisCourt to declare as invalid the appointment of the third respondent tothese posts.
The petitioner's case rests on the basis that there has been aviolation of his right of equality under Article 12 of the Constitution.The essence of his complaint is that the 3rd respondent had beenshown unwarranted preferential treatment by the first and secondrespondents. The question is whether the 3rd respondent and thepetitioner were equally circumstanced. Were they in the sameposition? They were not, for the reason that whereas the petitionerfailed to qualify at the prescribed examination and was therefore noteligible for promotion, the 3rd respondent had passed the prescribedexamination and was therefore eligible for promotion. The thirdrespondent was promoted because he was qualified for promotion.The petitioner was not promoted because he was not qualified. Totreat the petitioner and 3rd respondent as equally entitled topromotion would be improper, for it would result in treating unequalsequally. This would be as unjust as treating equals unequally.
Admittedly there was discrimination between a qualified personand an unqualified person. Those who were classified as eligible forpromotion were those who had passed the examination. The publicservices exist to supply an efficient administration and Article 12 of
Ragunathan v. Jayawardene, Secretary. Minister ofTransport and Highways and Others (Amerasinghe, J.)
the Constitution does not preclude the imposition of qualifyingexaminations, selective tests and other criteria for selecting orpromoting public officers to assure efficiency. The distinctionbetween those qualified for promotion and those who were not wastherefore founded upon an intelligible differentia. It was rational. Thescheme of promotion was not arbitrary or artificial or evasive in itsformulation or relation to its purpose or in its application. In thecircumstances, I am unable to hold that there has been a violation ofArticle 12 of the Constitution in this matter by the appointment of thethird respondent in preference to the petitioner. For the reasonsexplained the petitioner had no right in the circumstances of this caseto be treated equally in relation to the third respondent. The petition istherefore dismissed.
An enormous volume of documentation has been filed in thismatter evidencing long-standing and continuing dissatisfaction onthe part of the petitioner with a variety of matters but wholly irrelevantto these proceedings. The time of this Court has been wasted bycompelling us to consider them.
The petitioner is ordered to pay Rs. 1000 as costs.
BANDARANAYAKE, J. -I agree.RAMANATHAN, J. -1 agree