Sri Lanka Law Reports
 2 Sri L.R.
G. P. S. DE SILVA, C.J.,
PERERA, J.ANDGUNAWARDENA, J.
S.C. (FR) APPLICATION NO. 236/96.
APRIL 02 AND 25, 1997.
Fundamental Rights – Constitution, Article 12(1)- Transfer – Burden Proof.
The burden is squarely on the petitioner to establish the alleged violation ofArticle 12( 1) of the Constitution.
It is not enough for the petitioner to show that she has been denied the protectionof the law. She must also show that she has been denied equal protection – thatshe was treated less favourably than others similarly situated.
At best the petitioner's case is that the transfer was wrongful but that is notenough to ground a complaint of infringement of Article 12(1). The petitioner mustestablish unequal or discriminatory treatment in respect of the transfercomplained of.
Case referred to:
Jayasinghe v. The Attorney-General and Others [ 1994] 2 Sri L.R. 74,88.
APPLICATION for relief for alleged infringement of fundamental rights underArticle 12(1).
W. Dayaratne with Miss Inoka Ranasinghe and Ranjika Jayawardena for petitioner.Chandra Gamageiot 2nd, 5th and 8th respondents.
K. Siripavan D.S.G., for 1st and 7th respondents.
Cur. adv. vult.
May 08, 1997.
G. P. S. DE SILVA, C.J.
At the time material to this application the petitioner was a Grade Iprincipal who had assumed duties on 1.2.94 as principal of theKalubowila Maha Vidyalaya. She was granted study leave for aperiod of one year from 31.1.95 to pursue a course in education
Ratnayake v. Attorney-General (G P. S. de Silva. C.J.)
management and obtain a post graduate diploma. In her petition shecomplained of two matters, namely, (1) the repeated requests madeby the 3rd respondent (Secretary, Provincial Ministry of Education,Western Province) to vacate her official quarters at the KalubowilaMaha Vidyalaya and (b) her transfer out of the Kalubowila MahaVidyalaya upon the completion of her course of study. As it standstoday, the transfer is from Kalubowila to Dharmarama Vidyalaya,Ratmalana. After this application was filed, she agreed to vacate theofficial quarters at Kalubowila on or before 30th April, 1997 and thatquestion is no longer a live issue. The short point that now arises forconsideration is whether her transfer out of the Kalubowila MahaVidyalaya is violative of Article 12(1) of the Constitution.
Admittedly, she is in a transferable service. A transfer per se maynot constitute a violation of Article 12(1). On a scrutiny of theaverments in her petition it seems to me that her complaint of theviolation of Article 12(1) of the Constitution is founded essentiallyupon the following assertion. “The petitioner states that she decidedto follow the aforesaid post graduate diploma as it would not haveany impact on her employment or the use of the principal's quartersand also as the study leave was approved to her without anycondition. It is also submitted that all other principals whoparticipated in the said course on study leave were restored backto the same schools with the same designation, without anydiscrimination. The petitioner states the principal of VijayaVidyalaya, Karagampitiya, Dehiwala, one Mrs. Chitra Tillekeratne, oneof the principals who participated at the said course … got the sameschool after she completed the said course without anydiscrimination.” (paragraph 28) (emphasis added).
On the other hand, the 3rd respondent in his affidavit denies that“all principals who participated in the diploma course were broughtback to their former schools” and further avers that the question ofgoing back to the former school would depend, inter alia, on how wellthe principal had managed the school prior to going on leave. Thepetitioner has not stated the number of principals who participated inthe course of study nor any other relevant details in support of herclaim. She was content to refer to the name of only one principal who
Sri Lanka Law Reports
 2 Sri L. FI.
assumed duties at the former school. In this connection, it is well tobear in mind that the burden is squarely on the petitioner to establishthe alleged violation of Article 12 (1) of the Constitution. As pointedout by Fernando J., in Jayasinghe v. The Attorney-General andOthers'". It is not enough for the petitioner to show that he has beendenied the protection of the law. He must also show that he has beendenied equal protection, that he was treated less favourably thanothers similarly situated." The petitioner has failed to place before ussufficient material to establish this all-important fact.
Moreover, the position of the respondents was that the decision totransfer the petitioner out of the Kalubowila Maha Vidyalaya wastaken even before she was granted study leave. This is to someextent supported by 3R1 and 3R25. The report 3R1 dated 4.1.95made by S. W. Mohottala, the Deputy Director of Education, sets outin detail the deficiencies in the administration of the school during theperiod the petitioner functioned as principal. However, according tothe petitioner, 3R1 is a fabrication for the purposes of this case. Evenif that be so, there is the detailed memorandum dated19.12.94(3R25) forwarded by members of the staff complaining of theconduct of the petitioner. It is not suggested that 3R25 is also afabrication for the purposes of this case. It seems to me that the casefor the petitioner, at its best, is that the transfer was wrongful; but thatis not enough to ground a complaint of infringement of Article 12(1).The petitioner must establish unequal or discriminatory treatment inrespect of the transfer complained of. This she has failed to do. I
I accordingly hold that the alleged violation of Article 12(1) has notbeen established. The application fails and is dismissed, but in all thecircumstances, without costs.
PERERA, J. -1 agree.
GUNAWARDENA, J. -1 agree.