045-SLLR-SLLR-2005-V-1-RANASINGHE-vs.-RATHNASIRI-AND-OTHERS.pdf
SCRanasinghe vs Ratnasiri and others.315
RANASINGHEvs
RATHNASIRI AND OTHERSSUPREME COURT,
BANDARANAYAKE, J.
DISSANAYAKE, JANDFERNANDO, J,
S. C (FR) 638/2003
15TH JULY, 30TH, AUGUST AND 16TH NOVEMBER, 2004
Fundamental Rights – Appointment of Registrar of Births and Deaths andRegistrar of Marriages -Article 12(1) of the Constitution – Most eligible candidateappointed – Appointment not vitiated – Insuffeciency of evidence of allegedinfringement of fundamental rights.
The petitioner's father was Registrar of Births and Deaths, Uduwara andRegistrar of Marriages, Raigam Korala until his death on 06.11.2001. Thereafter,the petitioner was appointed to act in these posts by monthly extensions.
By Gazette dated 03.05.2002, the 2nd respondent (the'Registrar -General)called for applications to fill the aforesaid vacancies. The Gazette prescribedthe eligibility criteria, including educational qualifications. Ten applicationswere received. They were given to the 4th respondent (the District Registrar)for consideration by an Interview Board and recommendations. Next asrequired, the 2nd respondent submitted the recommendations to the 6threspondent (the Minister) for decision, The Panel of Members for inteview ofcandidates recommended that seven of the candidates had minimum eligibility.The 1st respondent had the best educational qualifications, viz. in addition tomore credits than others at the G. C. E. (O/L) Examination (in one sitting)against two sittings specified in the Gazette, she had also passed the G. C. E(A/L) for selection to the Kelaniya University, She was also a trained teacheruntil her retirement under Circular 44/90 dated 18.10.1990. The 6th respondentMinister decided to appoint her to both posts.
The appointments were impeached under Article 12(1) of the Constitution onthe ground that firstly, the Interview Panel had given marks to the candidateswhich was not required by the scheme of recruitment ; secondly that the 7threspondent (Private Secretary to the Minister) had recommended to the 5threspondent (Senior Assistant Secretary) that the Minister had instructed theappointment of the 1st respondent which was tantamount to political intervention ;thirdly, that the 1st respondent had no right to be appointed a “public officer”after retirement from Government Service.
316Sri Lanka Law Repons(2005) 1 Sri L. R.
The 2nd respondent (Registrar General) averred in his affidavit that theMinister had decided to appoint the candidate who was educationally the mostqualified candidate. The 2nd respondent made the appointment accordingly.
HELD:
There was no legal objection against marks being given at the interview.
The 2nd to 6th respondents had a discretion in the matter. Hence thedecision to appoint the 1st respondent in the circumstances could notbe impeached on the ground of political intervention.
As averred by the 2nd respondent, the candidate who had the besteducational qualifications had been appointed.
The Minister and other respondents did not act arbitrarily but acted onrelevant considerations. Hence the evidence was insufficient to holdthat there was an infringement of Article 12(1) of the Constitution.
The first respondent's appointment was not that of a "public officer"and as such the objection taken on that ground fails.
Case referred to :
1. Breen v Amalgamated Engineering Union (1971) 2 OB 175
APPLICATION for relief for infringement of fundamental rights
J. C. Weiiamuna with Viran Corea and Sharmaine Gunaratne for petitioner.Saliya Peiris with Chamath Madanayake for 1st respondent.
M. Gopallawa, State Counsel for 2nd to 6th and 8th respondents.
Cur.adv.vult
February 25, 2005,
SHIRANI A. BANDARANAYAKE, J.
The petitioner, who was the Acting Registrar of Birth and Deaths of UduwaraDivision and the Acting Registrar of Marriages of Raigam Korale Division,for a period of 2 years alleged that, the 2nd to 7th respondents have actedin violation of the petitioner's fundamental rights guaranteed in terms ofArticle 12(1) of the Constitution by the appointment of the 1 st respondentas the Registrar of Births and Deaths of Uduwara Division and the Registrarof Marriages of Raigam Korale Division.
SCRanasinghe vs Rathnasiri and others (Bandaranayake, J.)317
. This Court granted leave to proceed for the alleged infringement ofpetitioner’s fundamental rights in terms of Article 12(1) of the Counstitution
The petitioner’s grievance, albeit brief, is as follows :
The petitioner submitted that his father was the Registrar of Births andDeaths of Uduwara Division'and the Registrar of Marriages of RaigamKorale Division until his death on 06.11.2001. Thereafter the petitioner wasacting in the relevant post from 16.11.2001 (P1) which was extended onthe completion of every 30 days, Extensions were granted on this basisuntil November, 2003 and by letter dated 19.11.2003, the 3rd respondenthad informed the petitioner that his period of service was extended only forthe period from 17th November, 2003 to 30th November, 2003 (P12). Thepetitioner submitted that by notification published in the Gazette No. 1235dated 03.05.2002, the 2nd respondent called for applications for the postsof Registrars of Births and Deaths and Registrars of Marriages in severaldivisional secretariat areas in the Kalutara District including Uduwara (P2).The petitionersubmitted that having possessed of the qualifications statedin the Gazette Notification referred to earlier, he had applied for the relevantpost and submitted his application to the 4th respondent. Later the petitionerhad become aware that the 1st respondent has been appointed to therelevant post by letter dated 13.11.2003 sent by the 2nd respondent to the4th respondent. On an inquiry, he received a letter from the AdditionalDistrict Secretary, Kalutara, writing on behalf of the 4th respondent,informing him that the petitioner’s services will no longer be required from
as the 1 st respondent has been appointed to the post in questionwith effect from 01.12.2003.
The petitioner alleged that, according to the scheme of recruitment ofRegistrars of Birth and Deaths, the 4th respondent is required to make hisrecommendation to the 2nd respondent upon which the 2nd respondenthas to submit his observations together with the relevant documents aswell as the interview notes to the 6th respondent, who is the Minister ofthe relevant Ministry. Upon the 6th respondent granting his approval, the2nd respondent is required to make the appointment and that must bepublished in the Gazette (P3). The petitioner alleged that the 7threspondent, who is the private secretary of the 6th respondent Minister, byletter dated 24.06.2003 has requested the 5th respondent to appoint the1 st respondent to the post in question.
3 ISSri Lanka Law Reports(2C05) 1 Sri L. R.
It is common ground that applications were called for the post ofRegistrar of Birth and Deaths of Uduwara Division and the Registrar ofMarriages (General) of Raigam Korale Division by Gazette Notificationdated 30.05.2002 . According to the said Gazette Notification, thecandidates should have possessed the following qualifications.
applicants should be permanent residents in the relevant divisionswho possess sufficient assets and have acquired the respect ofpersons in that area ;
applicants should be persons who are not less than 21 years andnot more than 60 years of age ;
applicants should be married ;
applicants should possess the required educational and otherqualifications stipulated in the notices displayed at the office of theDistrict Secretary, Kalutara.
The notices calling for applications displayed at the said office at Kalutarastipulated that the minimum educational qualification was six passes atthe GCE (Ordinary Level Examination) in not more than two sittings includingSinhala/Tamil as a subject or an examination equivalent or higher to thatstandard and the ability to work in a second language to meet therequirements of the public of the area.
The 2nd respondent averred that clause 18(c) of the scheme ofrecruitment (P3) sets out the matters to be examined by the panel ofmembers at the interview and that clause 19 further provides that the saidpanel should select candidates eligible for appointment based on thematerial submitted at the interview. He further averred that the panel isexpected to only indicate the eligibility of a candidate and that there is noprovision made according to the scheme of recruitment for the allocationof marks at the interview. Learned State Counsel correctly pointed out thatthe petitioner is not entitiled to challenge the scheme of recuitment at thisstage.
An examination of the Schedule of applicants for the post of Registrarof Births and Deaths of Uduwara Division and the Registrar of Marriages ofRaigam Korale Division, reveals that there have been 10 applicants presentat the interview. Out of these 10, the panel of members, at the interview hadrecommended as suitable seven (7) applicants, which included the petitioneras well as the 1st respondent (2R2). All seven applicants have satisfiedthe minumum eligibility criteria. Except for the remark made stating suitableor non suitable, no other comment was made by the panel.
SCRanasinghe vs Rathnasiri and others (Bandaranayake, J.)'3 I 9
At the conclusion of the interview, the 4th respondent, based on thefindings of the panel of members, had reported to the 2nd respondent andthe 2nd respondent had sent the details of the 7 applicants to the 6threspondent informing him that the most suitable candidate out of the 7 ■eligible candidates be appointed to the post of Registrar (2R3)
According to the 2nd respondent, all the applicants including thepetitioner was made aware of the requirements to produce certificatesrelied upon by them to establish their educational qualifications and thiswas even referred to in the letter calling them forthe-interview (P4)
Out of the petitioner and the 1 st respondent, it is quite clear that the 1 strespondent possessed higher qualifications than the petitioner. Whilst thepetitioner had obtained six simple passes and one credit pass in twosittings at the GCE (O/L), the 1st respondent had obtained five simplepasses and three credit passes in the GCE (O/L) examination in onesitting. Moreover the 1st respondent had also passed the GCE (A/L)examination and the General Arts Qualifying (GAQ) Examination from theUniversity of Kelaniya. Furthermore, the 1 st respondent had functioned asa Trained Teacher until his retirement in terms of Public AdministrationCircularNo. 44/90 dated 18.10.1990 (P5).
The petitioner complained that, as the 1 st respondent had retired from. Government Sen/ice in terms of clause 4 of Public Administration CircularNo. 44/90 dated 08.10.1990, that he will not be entitled to be appointed toa public post after such retirement. It is to be- borne in mind that theprovisions of Public Administration Circular No. 44/90 (P5) prohibits re-employment in the Public Service, Provincial Public Service, StatutoryBodies, Public Corporations, State Owned Companies and GovernmentOwned Business Undertakings. The posts of Registrar of Births and Deathsand Marriages do not fall within the definition of the term ‘Public Officer' asdefined in the Constitution and the Establishment Code and are notconsidered as constituting posts in the Public Service. Moreover theprovisions in Public Administration Circular No. 44/90 have been amendedand restrictions imposed on the re-employment of officers who retired interms of the said circular have been varied by subsequent PublicAdministration Circulars such as Public Administration Circular Nos.44/90(iii) and Public Administration Circular No. 1/03. In the circumstancesit would not be correct to say that the 1 st respondent is disqualified frombeing appointed as a Registrar of Births and Deaths and a Registrar of
In such circumstances, it is abundantly clear that the 7th respondentwas only carrying out the instructions of the 6th respondent Minister, whichis within the framework of duties allocated to him in his capacity as thePrivate Secretary to the 6th respondent.
The main allegation of the petitioner is that the 7th respondent hadarbitrarily issued the letter dated 24.06.2003 (P7) to the 5th respondentinforming her to appoint the 1 st respondent to the post in question.
The petitioner also alleges that there was no scheme of allocating marksto the candidates at the interview and therefore there was no stipulatedcriteria for the selection.
Admittedly there had been no scheme of allocating marks at the interviewand the scheme of recruitment does not refer to any kind of guidelines,rules or principles, which would govern the criteria for the selection. Insuch circumstances, where no such guidelines for selection are laid downto be followed, the officer concerned is bestowed with unrestricteddiscretion ; if exercised without any fetters, such decision could becomearbitrary negating equal protection and discriminating persons who aresimilarly circumstanced.
According to classical Constitutional Law, wide discretionary power,was incompatible with the Rule of Law. (A. V. Dicey, Law of the Constitution,9th Edition, pg. 202). Coke, described discretion as “scire per legem quod
320Sri Lanka Law Repons(2005) 1 Sri L. R.
Marriages due to his optional retirement from the Public Service in termsof Public Administration Circular No. 44/90.
The petitioner has alleged that the 7th respondent who is the PrivateSecretary to the Minister had informed the 5th respondent by letter dated
thaUhe 1st respondent should be appointed to the relevantpost. His allegation is that as the direction to the 5th respondent wasgiven by the 7th respondent, there has been political intervention in thesaid appointment. Admittedly, the letter in question was written by the 7threspondent, However, he had written the letter in his capacity as the PrivateSecretary of the 6th respondent Minister and the contents of the letterclearly indicate that he is only conveying the decision of the Minister. Therelevant portion of the said letter is reproduced below :
SCRanasinghe vs Rathnasiri and others (Bandaranayake, J.)321
sitjustum”-, it was a science or understanding to discern between falsityand truth, between right and wrong, between shadows and substance,between equity and colourable glosses and pretences and not to doaccording to their wills and private affections (De Smith's Judicial Reviewof Administrative Action, 5th Edition 1995, pg. 298). However, in today’scontext what the Rule of Law demands is not to eliminate the widediscretionary power, but to see that the law is able to control its exercise. 'This does not mean that utilizing arbitrary power and having unfettereddiscretion in decision making process Can be countenanced. It is to beborne in mind that discretion should be exercised by a statutory bodystrictly according to law and according to the established procedure and,that means taking into account only the relevant considerations. Havingguidelines or principles according to which the discretion is to be exercisedwould be a clear exhibition of how a public authority has carried out-theadministrative authority vested in them. Referring to the concept of discretion,Lord Denning, MR, in Breenv Amalgamated Engineering Union.(1) stated that
“The discretion of a statutory body is never unfettered. It is a discretionwhich is to be exercised according to law. That means at least this :the statutory body must be guided by relevant considerations and notby irrelevant”
It is common ground that the 2nd to 6th respondents had unfettereddiscretion with regard to the selection of a Registrar of Births and Deathsof Uduwara Division and Registrar of Marriages of Raigam Korale Divison.However there is no material to indicate that the said respondents hadabused such discretion given to them in making the said selection. Althoughthere were no guildelines laid down, instead of any abuse, it appears thatthey have taken into consideration relevant criteria, in arriving at theirdecision. The sole basis for their selection according to the material availablebefore this court is the qualifications obtained by the applicants. The 2ndrespondent, in his affidavit averred that,
“I state that the 1st respondent is the most eligible candidate
amongst all applicants to be appointed to the advertised post of Registrar,whilst all candidates satisfied eligibility requirements relating toresidence, age, character, mental status, income, office facilities,handwriting etc., the educational qualifications of the 1st respondentare superior to the petitioner and other applicants (emphasis added)"
In the aforementioned circumstances, it cannot be said that the 2nd to5th respondents had acted arbitrarily abusing the discretion given to themfor the appointment of the Registrar of Births and Deaths for the UduwaraDivision and Registrar of Marriages for the Raigam Korale Division. Whendiscretion is exercised, taking into account all relevant considerations,then there cannot be a situation where the said decision could be regardedas taken arbitrarily and the said process will not fall into the categorywhich negates equal protection.
On a consideration of the aforementioned circumstances, I hold thatthe petitioner has not been successful in establishing that his fundamentalright guaranteed in terms of Article 12(1) of the Constitution was infringedby the 2nd to 7th respondents. This application is accordingly dismissed,but in all the circumstances of this case, without any costs.
DISSANAYAKE, J. -1 agree.
RAJA FERNANDO, J. -1 agree
Application dismissed.
322Sri Lanka Law Repons(2005) 5 Sri L. R.
It is thus apparent that although no guidelines were given with regard tothe selection of candidates in terms of the scheme of recuritment the 2ndto 6th respondents had made the selection not taking into account anyextraneous considerations, but on the basis of assessment of educationalqualifications of the applicants. This is further established by the lettersent by the 7th respondent to the 5th respondent on 24.06.2003 (P7)which is in the following terms :