REAR ADMIRAL DASSANAYAKE
v.CHANDRANANDA DE SILVA, SECRETARY. MINISTRY OFDEFENCE AND OTHERS
SUPREME COURTDHEERARATNE. J.
WIJETUNGA. J. ANDBANDARANAYAKE. J.
SC APPLICATION No. 262/98(FR)21st FEBRUARY. 2000.
Fundamental rights – Retirement of a Navy Officer – Navy Pensions andGratuities Code – Appeal by the officer to the President for redress – Failureto make a fair consideration of the appeal-Article 12(1) of the Constitution.
According to the Navy Pensions and Gratuities Code an officer holdingthe rank of Rear Admiral has to retire on the expiry of three years, if heis not promoted to the next higher rank within that period. However, theCode provides that the Secretary. Ministry of Defence, in consultationwith the Commander of the Navy, may retain the services of an officer inany rank beyond the period stipulated for that rank or beyond the agespecified in respect of that rank if. in the opinion of the President it isessential in the interests of the Navy to do so. The past practice in theNavy shows that such retention in the Navy had been effected byadjustment of the date ofappointment or seniority or extension of servicein the rank. This includes the appointment or the continuance of theofficer as temporary instead of confirming him.
On 23.4.1994 the former Commander of the Navy recommended that the2nd respondent who later became the Commander and the petitioner whowere both confirmed Commodores and were 47 and 44 years of agerespectively, be appointed as temporary Rear Admirals with effect from01.03.1994 and 01.04.1994 respectively, to enable them to serve beyondthe period of three years prescribed for the substantive post of RearAdmiral. The Commander explained that due to the acute shortageof senior officers in the Navy, it was necessary to retain them untilother officers were mature enough to assume duties in the seniorappointments. Thereafter, the petitioner was promoted as temporaryRear-Admiral on 01.04.1994. However, during the petitioner's stay in
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India for training, he had been confirmed in the rank of Rear Admiralwithout his knowledge and with effect from 01.04.1995. After his returnfrom India in December, 1995 the petitioner sought clarification from thethen Commander of the Navy regarding the same, as it would lead topremature retirement. In reply, the Commander stated, contrary to hisprevious recommendation, that such promotions and confirmations aremade in the best interests of the organisation.
When the 2nd respondent became the Commander of the Navy thepetitioner requested him too to readjust his seniority but that also wasof no avail. The petitioner who was then Chief of Staff was the second inCommand of the Navy. The 2nd respondent was senior to the petitionerin the rank of Rear Admiral only by one month. But the petitioner wasnow faced with the threat of premature retirement before reaching theage of 55 years. He, therefore, made an appeal dated 19.03.1997 to thePresident, through the 2nd respondent, in terms of the Navy (Redress ofGrievances) Regulations. As there was no response to his appeal forabout one year, he made two other communications to the President,again through the 2nd respondent on 05.02.1998 and 14.03.1998. It wasonly at that stage that the 2nd respondent forwarded the appeals to the1st respondent (Secretary, Ministry of Defence) for submission to thePresident. This he did by letter dated 13.03.1998 addressed to thePresident, containing his observations, sent through the 1st respondentwith a covering letter dated 14.03.1998. In that letter the 2nd respondentfailed to draw attention to the Regulations and precedents relied upon bythe petitioner. He opined that there was no dearth of senior officers at allfor higher appointments. He thereby overlooked the recommendationsmade by his predecessor in 1994. He also stated that if the petitioner wasto be retained in service after the date on which his retirement was due,the existing regulations will have to be amended with the approval ofParliament. This was a complete distortion of the actual legal position asset out in the Navy Pensions and Gratuities Code.
The 1st respondent concurred with the comments made by the 2ndrespondent and submitted the same to the President on 18.03.1998.Consequently, by letter dated 27.03.1998 the Is1 respondent informedthe 2nd respondent that the President had approved the appointment ofthe 3rd respondent as the Chief of Staff with effect from 01.04.1998. oncompletion of the term of office of the petitioner on that date.
Held :
The 1st and 2nd respondents violated the fundamental rights of thepetitioner guaranteed by Article 12(1) of the Constitution.
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“By various acts and omissions aforesaid the 2nd respondent effectivelydeprived the petitioner of having his appeals for redress being fairly andobjectively considered by the President.”
Per Wijetunge. JL.
“The l5' respondent, having readily concurred with the comments madeby the 2nd respondent in-forwarding the appeals to the President, himselfcontributed in no small measure towards the petitioner's appeals notreceiving due consideration by the President."
APPLICATION for relief for infringement of fundamental rights.
D. S. Wyesinghe, P. C. with J. C. Weliamuna and C. Samaranagake forpetitioner.
R. K. W. Goonesekera for Is1 respondent.
K. Sripauan, DSG for 2nd, 3rd and 4th respondents.
Cur. adu. vult.
May 05, 2000WIJETUNGA, J.
The petitioner, at the time of making this application,was the second in command of the Navy and held the rank ofRear Admiral. He joined the Royal Ceylon Navy as a CadetOfficer on 1.7.69 and was promoted to the rank of Midshipmanon 1. 7. 70. Having followed the Sub-Lieutenant TechnicalCourse with the Indian Navy, he was promoted to the rankof Acting Sub-Lieutenant and then as Sub-Lieu tenant. Hethereafter obtained the Ocean Navigation Certificate and theWatch Keeping Certificate and was promoted to the rank ofLieutenant of the Sri Lanka Navy on 28.4.74. He completed theSpecialist Navigation Course (Long-N) in India with a FirstClass Honours. In 1981, having sat the selection examinationfor the staff course, he qualified for the same and followed theDefence Services Staff Course at the Defence Services StaffCollege in Wellington, India, from December 1981 – December1982. At the same time he completed the Master's Degree in
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Defence Studies at the University of Madras with GradeA Distinction. On 1.5.81 he was promoted temporarily tothe rank of Lt. Commander and was confirmed on 28.4.82. On1.1.85 he was promoted to the rank of Commander andthereafter on 1.1.88 to the rank of temporary Captain. He wasconfirmed in that rank in 1989, with effect from the date ofpromotion as temporary Captain. On 1.11.92 he waspromoted as temporary Commodore and was confirmed inthat rank on 1.1.93. He was thereafter promoted as temporaryRear Admiral on 1.4.94 and was confirmed in that rank on1.4.95. The petitioner states that he has had an unblemishedrecord in the Navy.
The petitioner was also awarded the post-graduate Diplomain International Affairs (1983/84) by the BandaranaikeCentre for International Studies and also followed a course inProfessional Diplomacy, Diplomatic Procedure and Institutionsat the same Centre in 1988. He was appointed Deputy HarbourMaster of the Port of Kankesanturai by the Ports Authority in1989, with the concurrence of the Commander of the Navy.
During his tenure of Office in the Navy, the petitionerstates that he had worked in almost all the ships andestablishments in the Navy and earned high commendations.Since 1983 he served mainly in the operational areas. He hasbeen the Acting Chief of Staff for about eleven months fromDecember 1993, during the absence of the 2nd respondent whowas then the Chief of Staff. The petitioner states that he andthe 2nd respondent joined the Navy together and the 2ndrespondent was only one month senior to the petitioner in therank of Rear Admiral. He has served as Acting Commander ofthe Navy on three occasions.
In December 1994, the petitioner was sent to Indiato follow the National Defence College Course, the highestprofessional course available to a service officer, and returnedto Sri Lanka in December 1995. In mid December 1995, he wasappointed Commander, Eastern Naval Area.
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After he returned from India, the petitioner found that hehad been confirmed in the rank of Rear Admiral without hisknowledge and contrary to the earlier recommendation of thethen Commander of the Navy dated 23.4.94. When the thenCommander of the Navy recommended to the Secretary.Ministry of Defence, the promotions of the 2nd respondent aswell as of the petitioner, who were both Commodores at thetime, as temporary Rear Admirals, he stated inter alia asfollows
“From the past records it is noted that officers havenot been promoted to the temporal^ rank of Rear Admiral.However at present Commodore Tissera is 47 years (date ofbirth – 11 March 1947) and Commodore Dassanayake is 44years (date of birth – 14 April 1950) of age and if they arepromoted to the substantive rank of Rear Admiral they willhave to leave the service on completion of the maximum periodin rank which is 3 years. Due to the acute shortage of seniorofficers in the Navy, it is necessary to retain them until otherofficers are senior and mature enough to assume duties in thesenior appointments.
Having taken into consideration the facts enumeratedabove, the criteria at quoted References B and C and that ofother senior Executive officers and also the ranks of officersholding such appointments in sister forces, it is proposedto promote both Commodore Tissera and CommodoreDassanayake to the rank of Temporary Rear Admiral witheffect from the dates indicated against their names:
“Commodore H. C. A. C. Tissera – 1 March 1994
Commodore D. K. Dassanayake – 1 April 1994.”
According to the Navy Pensions and Gratuities Code,1981, published in Gazette Extraordinary No. 654/10 of20.3.91 as regulations made by the President under Section161 of the Navy Act, as amended by Gazette Extraordinary
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No. 704/7 of 3.3.92, an officer holding the substantive rank ofRear Admiral has to retire on the expiry of three years, if he isnot promoted to the next higher substantive rank within thatperiod.
However, regulation 3(2) (a) thereof provides that"notwithstanding the provisions of paragraph (1), the Secretary,Ministry of Defence in consultation with the Commander of theNavy, may retain the services of an officer in any rank beyondthe period stipulated for that rank in that paragraph or beyondthe age specified in respect of that rank in that paragraph if,in the opinion of the President it is essential in the interests ofthe Navy to do so."
The petitioner states that in the Navy, if an officer ispromoted to the rank of Commander and above, it may eitherbe a temporary promotion or a confirmed promotion. If apromotion is so made without an officer completing the periodin the respective ranks, the promotion is normally given astemporary rank until such time as he completes the period inthe previous rank, in order to prevent premature retirement ofefficient officers. He has cited the instances of CommodoreA. H. A. de Silva and Commodore H. A. Silva, who both heldoffice as Chief of Staff, whose seniority in the ranks ofCommodore and Captain were adjusted in order to serve in theNavy upto the time the then Commander completed his tenureof office and each of them thereafter became Commander of theNavy. If not for the said adjustment of seniority, the petitionerstates that the aforesaid officers could not have becomeCommanders of the Navy and would have had to retireprematurely after they held the appointment of Chief of Staff.The petitioner further states that at no stage had a RearAdmiral of the Navy been retired prior to the age of retirementdue to time in rank and he therefore had the expectationthat his seniority would be adjusted in such a manner asto retain him in the Navy until his retirement at 55 yearsof age.
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When the petitioner came to know that he had beenconfirmed in the rank of Rear Admiral while he was away inIndia for training, he sought clarification from the thenCommander of the Navy regarding the same, as it would leadto premature retirement. In reply, the then Commander statedthat such promotions and confirmations are made only in thebest interests of the organization.
It is ironical that the self-same Commander had, just,one year previously, at the stage when he recommendedthe promotion of the 2ml respondent and the petitioner forpromotion as Temporary Rear Admirals, stated that if theywere promoted to the substantive rank of Rear Admiral theywould have to leave the service on complet ion of the maximumperiod in rank which is three years and had in that contextadverted to the acuteshortage of senior officers in the Navy andthe necessity to retain them until other officers are senior andmature enough to assume duties in the senior appointments.
When the 2nd respondent became the Commander ofthe Navy, the petitioner requested him too to readjust hisseniority but that also was of no avail. He therefore submittedan appeal dated 19.3.97 to the President, by way of redress ofgrievances (‘ROGj, in terms of the Navy (Redress of GrievanceRegulations, (in my view very properly through the appropriatechannel, the 2lld respondent). Having had no response theretofor about one year, he addressed two further communicationsto the President, again through the 2nd respondent, on 5.2.98and 14.3.98, respectively. He also sought an audience with theSecretary, Ministry of Defence, through the 2nd respondent, byletter dated 3.3.98, regarding this matter. He received noresponse to any of these communications.
On 27.3.98, the petitioner received the information copyof a letter of even date addressed to the Commander of the Navyby the Secretary, Ministry of Defence stating inter alia that thePresident, the Commander-in-Chief, has been pleased toapprove the appointment of Rear Admiral D. W. Sandagiri(the 3"* respondent) as the Chief of Staff with effect from 1.4.98,
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on completion of the term of office of the petitioner on that date.The petitioner states that he was shocked to receive this letteras no final decision had been made by the President on hisROG. He therefore submitted a further appeal to the Presidentdated 29.3.98, through the 2nd respondent, requesting a veryearly interview, for which too he did not receive even anacknowledgement.
The petitioner states that he was 47 years of age by 1.4.98and was the youngest and only officer in the Navy to have beenretired at that age as Chief of Staff. It is also relevant to notethat the President had previously appointef the petitioner asActing Commander of the Navy on three occasions.
It is against this background that the petitioner hascomplained to this Court of alleged infringement of Article12(1) of the Constitution and obtained leave to proceed.
The 2nd respondent's response to the petitioner's affidavitdated 24.4.98 is contained in his affidavit dated 30.3.99. Itmust however be mentioned that the petitioner had by thensubmitted two further affidavits to Court dated 10.6.98 and
respectively, with annexures, of which the 2ndrespondent has responded only to part of the affidavit dated
24.7.98.
Answering paragraph 5 of the original affidavit, the 2ndrespondent only admits that he is one month senior to thepetitioner in the rank of Rear Admiral and that the petitionerwas appointed as Acting Chief of Staff in December, 1993,during his absence for about 11 months. But he is silent as towhether they joined the Navy together.
The 2nd respondent has admitted only the documentsreferred to in some of the paragraphs of the petitioner'saffidavit, to which I shall refer now. As he has admitted thebio-data of the petitioner contained in the document P.3,he thereby admits the entire service record of the petitioneras set out in his affidavit. So also, by his admission of P. 1,
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P.2, P.4, P.5, P.6, P.7, P.8 and P.9, he has admitted thequalifications obtained, appointments held, appreciations andcommendations received by the petitioner as set out therein.P.10 being the document dated 23.4.94 whereby the thenCommander of the Navy recommended the 2"rt respondentas well as the petitioner for promotion as temporary RearAdmirals, the reasons therefor, which have been adverted toearlier in this judgment, are acknowledged.
By P.12 dated 7.3.97 addressed to and admittedlyreceived by the 2nd respondent, the petitioner as Chief of Staffdeals with the confirmation in rank inter alia of the 3nlrespondent and thereby alerts the 2nd respondent to the illeffects of such confirmation, stating that "in case the aboveofficers are confirmed in their present rank, without allowingthem to complete their maximum time in the previoussubstantive rank (emphasis added), they may have to leave theservice prematurely though there is enough time ahead tillthey reach the age of 55 years.” This position being true of thepetitioner’s complaint too, it lends credence to the petitioner'sassertion that the practice was to allow officers to completetheir maximum period in the previous substantive rank,thus readjusting their seniority and preventing prematureretirement.
In paragraph 12 of his affidavit, the petitioner has madespecific reference to two officers who were Chiefs of Staff at therelevant time, who were retained in service after adjustingtheir seniority. As the 2nd respondent denies the avermentscontained in the said paragraph, it is necessary to deal with thematter in some detail.
As regards the first named officer, Commodore A. H. A. deSilva, it is the petitioner's position that he was Chief of Staffand his seniority in the ranks of Commodore and Captain wereadjusted in order to serve in the Navy upto the time the thenCommander completed his tenure of office. He thus becamethe Commander of the Navy, which appointment he held tillhis retirement at the age of 55 years.
SCRear Admiral Dassanayake v. Chandrananda De Silva, Secretary. 243
Ministry of Defence and Others (Wijetunga, J.).
The 2nd respondent denies the averments contained in thesaid paragraph and states that “Commodore A. H. A. Silva waspromoted to the rank of Commodore with effect from 04.02.78and his services were extended for a period of 2 years witheffect from 4.2.82 by His Excellency the then President.”
If the 2nd respondent chose to deny the petitioner’saverments in paragraph 12 of his petition,-he should equallyhave dealt with the petitioner’s averments in paragraph 2(a) ofhis affidavit dated 24.7.98 where he stated inter alia that “allprevious Chiefs of Staff who were below the age of 55 years andwho were to complete maximum time in Rank were retained inthe Navy after adjusting their respective seniority as well asgranting extensions in rank. I annex hereto marked P. 33 aschedule prepared by me giving the details of all the Chiefs ofStaff who served the Navy after 1971." In this schedule, thepetitioner has clearly brought out the following particulars -that A. H. A. de Silva was initially promoted Commodore on5.5.78, then was back dated to 4.2.78, again the seniority asCommodore was post dated to 4.2.79, appointed Chief of Staffon 1.6.79, given an extension of time in rank of one year witheffect from 4.2.83 and retired at the age of 55 years asCommander of the NaVy.
The truth of these averments is to a great extent borne outby the 2nd respondent’s own averments aforementioned wherehe concedes that this officer was promoted Commodore on4.2.78 and his services were extended for a period of two yearswith effect from 4.2.82. Even on his own admission, it is theextension granted that enabled him to be in service until4.2.84. As the petitioner states that this officer was bomin 1931, he still had time to be the Commander of the Navybefore reaching the age of retirement – 55 years. But, the 2ndrespondent has remained silent in regard to the petitioner’sclaim that Commodore A. H. A. de Silva retired as Commanderof the Navy. Surely, as the incumbent Commander of the Navy,it was his bounden duty to candidly inform the Court whetheror not Commodore de Silva retired as Commander of the Navy;
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more so as the petitioner had displayed a high degree ofcandour and professionalism in submitting this material toCourt. As the 2nd respondent had dealt with some of theaverments in the petitioner’s affidavit dated 24.7.98, he had noexcuse whatsoever for withholding this information from Court.The irresistible inference therefore is that the 2nd respondentattempted to mislead the Court by presenting a garbledversion of what actually took place. In any event, he hasconceded that an extension was in fact granted to this officer.
As regards the petitioner’s averment in paragraph 12 ofhis affidavit dated 24.4.98 that Commodore H. A. Silva toowas Chief of Staff and his seniority in the ranks of Commodoreand Captain were adjusted in order to serve in the Navy uptothe time the then Commander completed his tenure of officeand he thus became the Commander of Lhe Navy, whichappointment he held till his retirement in November, 1991,even beyond the age of 55 years, the 2nd respondent hasresponded as follows:
"Commodore H. A. Silva was promoted to the substantiverank of Commodore on 1.6.80. However, the substantiverank of Commodore had been converted as temporaryfrom the same date and confirmed in the substantive rankwith effect from 1.1.83. Commodore H. A. Silva functionedas the Commander of the Navy for a period of 04 years 1 1months and 30 days."
This is precisely what the petitioner stated in P. 33, theschedule annexed to his affidavit dated 24.7.98, wherehe dealt more fully with the adjustments of seniority ofCommodore H. A. Silva. His original assertion in paragraph 12of the first affidavit too is borne out by the 2nd respondent'sresponse quoted above. Yet, the 2nd respondent chose to denyparagraph 12 of the petitioner's affidavit dated 24.4.98. Thiswas indeed a puerile attempt on his part to cloud the issue andperhaps bury his head, ostrich like, in the sand. The Courtmust'in no uncertain terms condemn the manner in which the
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2nd respondent dealt with these matters in his affidavit,particularly as he holds the very responsible position of headof the Sri Lanka Navy.
The 2nd respondent’s affidavit is replete with this type ofvague, evasive and misleading averments, which are toonumerous to be dealt with in detail. For instance, in paragraph9 of his affidavit, the petitioner states that –
“according to the aforesaid Code, in terms of clause 3(2)thereof, the Secretary, Defence in consultation with theCommander of the Navy, may retain the services of anofficer in any rank beyond the period stipulated for thatrank above, if in the opinion of the President it is essentialin the interests of the Navy to do so.”
This is almost a verbatim reproduction of Regulation 3(2)(a) of the Navy Pensions and Gratuities Code, 1981. But, forreasons best known to him, the 2nd respondent denies thisparagraph and goes on to state that –
“in terms of Clause 3(2) of P. 11, the Secretary, Ministry ofDefence, in consultation with the Commander of the Navy,may retain the services of an officer in any rank beyond theperiod stipulated for that rank, if in the opinion of HerExcellency the President, it is essential in the interest ofthe Navy to do so."
I cannot see any reason in logic or in law for this type ofdenial of an averment in an affidavit, and worse still, for ameaningless attempt to paraphrase such averments. Ratherthan resorting to verbal acrobatics and wasting the time ofCourt, the 2nd respondent could well have gracefully admittedsuch of the averments in the petitioner's affidavit as shouldhave been admitted and dealt with the others which had to bedenied.
With the aforementioned provision staring him in the face,the 2nd respondent responds to paragraph 15 of the petitioner's
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affidavit by stating that "there is no provision in law to readjustseniority of the Petitioner in order to facilitate him to serve inthe Navy.” The complaint of the petitioner was that by reasonof being confirmed in the rank of Rear Admiral in 1995, he wasto retire from the Navy prematurely, before reaching the age of55 years. The 2nd respondent was well aware that, underClause 3(2) (a) of the Navy Pensions and Gratuities Code, thepetitioner’s services could have been retained beyond theperiod stipulated for that rank or even beyond the age specifiedin respect of that rank. He was equally aware, as shown by hisown admission referred to earlier, that there were instanceswhere such readjustments had been made to retain seniorofficers beyond the stipulated periods.
In his appeal to the President dated 5.2.98, submitted bythe petitioner through the 2nd respondent, he had specificallyreferred to the case of former Chief of Staff, Commodore H. A.Silva as being similar to his, where seniority had beenreadjusted thus enabling Commodore Silva to remain inservice until the then Commander of the Navy relinquishedduties on 1.11.96, citing the same as a precedent. Viewed inthis light, the above averment of the 2nd respondent is notmerely incorrect, but false to his knowledge.
1 shall now turn to the fate of the appeals made by thepetitioner to the President, through the 2nd respondent, by wayof redress of grievances. The first such appeal was submittedon-19.3.97. Regulation 2 of the Navy (Redress of Grievances)
Regulations provides inter alia that "where an officer is
aggrieved by any action of the Commander of the Navy, eitherin respect of his appeal or in respect of any other matter, hemay make a written appeal to His Excellency the President".This, therefore, is a right conferred on officers such as thepetitioner. Accordingly, on such an appeal being submittedto the 2nd respondent for onward transmission to thePresident, the 2nd respondent was duty bound to forward thesame without undue delay. But, the 2nd respondent held on tothe petitioner’s appeal for almost one full year without makinghis observations and submitting the same to the President.
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Ministry of Defence and Others (Wijetunga, J.)
In the meantime, the petitioner had made a further appealto the President dated 3.2.98, through the 2nd respondent,requesting that redress be granted to him in a reasonable andfair manner. This was followed by a similarly addressed furthercommunication dated 14.3.98 drawing attention to the factthat he would be denied the opportunity of serving the Navyafter 1.4.98, at the age of 47 years, while being the Chief ofStaff, unless a very early decision is made regarding thismatter. He further stated there that "as this is an official matterof grave concern with regard to my career, and as the time isrunning short, I am sure that Your Excellency would agree thatthe best way to represent matters in this regard, under thepresent circumstances, would be by Your Excellency giving mean audience”.
It is only at this stage that the 2nd respondent thoughtit fit to forward the petitioner’s several appeals to the 1strespondent, for submission to the President. This he did byletter dated 13.3.98 addressed to the President, containing hisobservations, sent through the 1st respondent with a coveringletter dated 14.3.98.
In paragraph 7 of that letter, the 2nd respondent made thefollowing observations:-
"In consideration of the totality of the material it is my viewthat back dating of the date of confirmation to suitindividuals and to circumvent provisions of law is a whollyunacceptable practice in any institution. If Rear AdmiralDassanayake is to be retained in service after the date onwhich his retirement is due, the existing Regulations willhave to be amended with the approval of Parliament.Embarking on such a course of action would not beadvisable as it would affect all ranks in the Army, Navy andAir Force and would be contrary to procedure that hasbeen accepted and followed in all three Services for overfour decades and other countries."
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Though the 2nd respondent was undoubtedly entitled toexpress his views in this regard, he was equally obliged topresent the facts to the President in a fair and objectivemanner. There was no question whatsoever of circumventingprovisions of law. as alleged by him. Nor was there a needto amend the existing Regulations with the approval ofParliament. On the contrary, there was a total failure on the 2ndrespondent's part to draw tlae attention of the Presidentto the provisions of Regulation 3(2) (a) of the Navy Pensionsand Gratuities Code, 1981, (already quoted earlier inthis judgment), which would enable the Is1 respondent, inconsultation with the 2nd respondent, to retain the services ofthe petitioner not only beyond the period stipulated for therank of Rear Admiral, but even beyond the age specified inrespect of that rank, if in the opinion of the President it wasessential in the interests of the Navy to do so.
The 2nd respondent thereby misrepresented facts with aview to misleading the President.
Furthermore, the 2nd respondent deliberately omittedto make reference to the precedents cited by the petitioneras regards previous instances where officers who held therank of Chief of Staff were retained in service beyond theaforementioned periods.
Instead, he referred to the fact that "at present there arefour Real" Admirals and six Commodores” and opined that"accordingly there is no dearth of senior officers at all and allthese officers are professionally competent and have beengroomed for the higher appointment of the Chief of Staff.
Never did it occur to the 2nd respondent to mention to thePresident that as recently as in 1994 when his predecessor inoffice had recommended him as well as the petitioner forpromotion as temporary Rear Admirals, he made the observationthat "due to the acute shortage of senior officers in the Navy,it is necessary to retain them until other officers are senior andmature enough to assume duties in the senior appointments.”
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He even lost sight of the fact that admittedly he was onlyone month senior to the petitioner in the rank of Rear Admiral(though the petitioner was more than three years his junior inage), from which rank he was elevated to that of Vice Admiral,and Commander of the Navy, while the petitioner remainedjust one step below as Chief of Staff.
The 2nd respondent has offered no explanation whatsoeverin regard to the inordinate delay of about one year in submittingthe petitioner’s appeal for redress to the President. By reasonof such delay, the President had barely two weeks to considerthe petitioner's appeal, before he was due to retire. While theCourt does not wish to speculate on the motive behind thedelay, suffice it to say that such delay was totally unwarranted.
The 1st respondent states in his affidavit dated 5.4.99 thatthe 2nd respondent did not recommend the request made by thepetitioner for the reasons stated in his comments dated
that he concurred with the comments made by the 2ndrespondent and submitted the same to the President on
He further states that “after careful consideration ofthe comments made by the 2nd respondent and the observationsmade by me, Her Excellency the President on 23.3.98 rejectedthe request made by the petitioner by P. 1 5" – (i. e. appeal dated19.3.97).
As pointed out earlier in this judgment, the commentsmade by the 2nd respondent when submitting the appealsmade by the petitioner to the President were not a fair,impartial, or accurate presentation of the facts. Furthermore,there was wilful suppression of material facts such as theprecedents cited by the petitioner in support of his request forreadjustment of seniority, which could well have tilted thescales in his favour. Even the relevant legal provisions wereartfully withheld from the President and the impression wascreated that what the petitioner sought was not permitted bylaw and was thus an attempt to circumvent the law for hisbenefit. The 2nd respondent even went so far as to state that
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if the petitioner is to be retained in service after the date onwhich his retirement is due, the existing Regulations will haveto be amended with the approval of Parliament. This was acomplete distortion of the actual legal position as set out in theNavy Pensions and Gratuities Code. By the various acts andomissions aforementioned, the 2nd respondent effectivelydeprived the petitioner of having his appeals for redress beingfairly and objectively considered by the President.
The 1st respondent, having readily concurred with thecomments made by the 2nd respondent in forwarding theappeals to the President, himself contributed in no smallmeasure towards the petitioner’s appeals not receiving dueconsideration by the President.
For the reasons aforesaid, I hold and declare that the Is'and 2nd respondents have violated the fundamental rights ofthe petitioner guaranteed by Article 12(1) of tine Constitution.
Having regard to the unfair, unjust and discriminatorytreatment meted out to the petitioner, I award the petitioner asum of Rs. 500,000/- as compensation, to be paid by the State.
As the 2nd respondent was the prime architect of theviolation of the petitioner’s fundamental rights, and waslargely responsible for the petitioner having to seek relief fromthis Court. I further direct the 2nd respondent to personally paythe petitioner a sum of Rs. 50,000/- as costs.
The compensation as well as the costs should be paidbefore 30.6.2000.
DHEERARATNE, J. – I agreeRANDARANAYAKE, J. -1 agree
Relief granted.
