SAMARASINGHE V. AIR LANKA LTD. AND OTHERS

017-SLLR-SLLR-1996-1-SAMARASINGHE-V.-AIR-LANKA-LTD.-AND-OTHERS.pdf


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Samarasinghe v. Air Lanka Ltd. and Others
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SAMARASINGHE
V.
AIR LANKA LTD. AND OTHERS
SUPREME COURT.
AMERASINGHE, J.
PERERA, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO 275/93.
02 & 07 MARCH 1994.
Fundamental Rights – Constitution Article 12 (1) – Equality and discrimina-tion with reference to recruitment and promotion.
The post of International Relations Manager was created by upgradingPetitioner's present post. He had been recommended for appointment by aduly constituted panel of high ranking – officials including the Consultanthimself – after internet advertisement. The fact that he lacked a part of thestipulated experience at the time of his application should not have stood inthe way. It was not an insuperable obstacle. In any event the 13th Respond-
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ent who was appointed in preference to him had no experience at all. Fur-ther the avowed policy of Air Lanka was to fill such vacancies, to the maxi-mum extent possible, by internal candidates. Yet the Petitioner was not onlydenied his promotion, but he now finds himself condemned in these pro-ceedings by the very management that took steps towards creating a postwith a view to promoting him.
The allegations of incompetence, inefficiency and lack of responsibility lev-elled against the Petitioner are without foundation.
The Petitioner had a legitimate expectation of being appointed InternationalRelations Manager.
The 1st Respondent had a legitimate interest and a public duty in ensuringthat the best candidate was appointed. The salutary procedures and provi-sions for doing so were totally disregarded and the 13th Respondent wasappointed for reasons that had no rational connection with the object ofappointing the best qualified person. The Petitioner was consequently notonly treated unequally, but also offensively discriminated against. The dis-crimination was both unwarranted and invidious.
There was no vacancy advertised by Air Lanka in respect of which the 13thRespondent could have made an application. He has secured his appoint-ment as International Relations Manager otherwise than through the recog-nized procedure for such recruitment. There is no justification for makingsuch appointments by private negotiation, under a veil of secrecy. The 13thRespondent does not have the basic requirements necessary for appoint-ment as a Manager, Grade M.l.The appointment depended upon the viola-tion of the Petitioner's constitutional right to equality by the demonstration ofundue partiality towards the 13th Respondent. I have no hesitation, there-fore, in holding that his appointment is invalid. I direct that the appointmentof the 13th Respondent be terminated forthwith.
PerWIjetunga, J."The principle of equality applies from the stage of one's recruitment to thestate sector right upto the end of one's career. It applies to the ever impor-tant matter of promotions too. This Court has, in dealing with the equalityprovisions of the Constitution, insisted that while there should be properschemes of recruitment and promotion, their implementation should not betainted by caprice, bias or prejudice. Favouritism on the one hand or the evileye on the other, necessarily militate's against the very concept of equalityand should, therefore, be abhorred. There must, in the public interest, al-
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ways be honesty, openness, and transparency in regard to executive oradministrative acts.
APPLICATION for relief for infringement of fundamental rights.
R.K.W. Goonesekera with Jayantha de Almeida Guneratne and FrancisGunawardene for Petitioner.
K.C. Kamalasabayson D.S.G. with Mohan Peiris S.S.C. for 1st, 6th and 12thRespondents.
C. Seneviratne P.C. with Max Bastiansztor 7th to 11th Respondents.Varuna Basnayake P.C. with S.J. Mohideen for 13th Respondent.
Cur. adv. vult.
02 June, 1994.
WIJETUNGA, J.
The Petitioner who is the Senior International Relations Executiveof the 1st Respondent, Air Lanka Ltd. (Air Lanka) complains of theviolation of his fundamental rights guaranteed by Article 12 (1) of theConstitution by reason of the appointment of the 13th Respondent tothe post of International Relations Manager.
The Petitioner had joined Air Lanka on 16.11.88 as InternationalRelations Executive, a post in Grade E IV of the cadre. The vacancyhad been duly advertised in the newspapers and the Petitioner claimsthat he was selected from among hundreds of applicants, after severalinterviews held by different panels. He had thereafter been promotedSenior International Relations Executive, Grade E V, on or about20.12.89. He holds a Bachelor of Arts degree in Government from theUniversity of Essex and a Master of Arts degree in International Af-fairs from Columbia University. The Petitioner claims that in or aboutOctober, 1992, he made a request that his position as Senior Interna-tional Relations Executive be upgraded to Manager level and in re-sponse to the said request the Consultant, International Relations andLegal (’Consultant’) had a Staff Vacancy Notice dated 23.11.92 (P3)published, inviting applications on or before 7.12.92 from confirmedstaff of the Company for the said post. The vacancy was to be filled byinternal recruitment. One of the requirements was five years experi-ence at Air Lanka, out of which two yeaars should have been in theSenior Executive (E V) grade. The Petitioner duly submitted his appli-
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cation through the Consultant, who was his head of department, andwas interviewed on 13.1.93 by a panel of high ranking officials consti-tuted for the purpose. He was the only applicant interviewed. On orabout 23.2.93, the Petitioner came to know through the Senior Man-ager, Human Resources Development (Human Resources Manager)that though the interview panel had recommended his appointment,the Board of Directors at the time comprising the 2nd to 6th Respond-ents, had decided to defer the said appointment. The Petitioner thenhanded over a letter of protest to the 2nd Respondent, dated 2.3.93(P5).The Secretary to the Board of Directors informed him on 22.3.93that the Board would meet him at a Board Meeting scheduled for 25.3.93,but the said meeting did not take place. The Secretary's subsequentintimation to the Petitioner that his case would be taken up at the nextBoard Meeting also did not materialise. On or about 6.4.93 the Peti-tioner was informed by the Consultant that the Board was consideringappointing the 13th Respondent to the said post. He inquired from thePetitioner whether in the circumstances he would wish to be trans-ferred to another department as a Senior Executive. When the Peti-tioner indicated that he did not favour such a course of action, he wasasked by the Consultant whether he would like a Manager-level posi-tion in either the Corporate Planning or Marketing Divisions. This sug-gestion too was rejected by the Petitioner who indicated to the Con-sultant that he was interested only in the post of International Rela-tions Manager, since this was the post which was in keeping with hisqualifications, experience and expertise. Thereafter, he handed over aletter dated 24.4.93 (P6) to the Consultant, complaining against thetreatment that was being meted out to him and requesting him toinform the 2nd Respondent to deal with the matter in accordance withestablished and normal administrative procedures. Despite the pro-tests of the Petitioner, the 13th Respondent was appointed to the postof International Relations Manager on or about 3.5.93.
The Board of Directors of Air Lanka was reconstituted in or aboutMay, 1993. The Petitioner made a fresh appeal to the new Board ofDirectors comprising the 6th to 11th Respondents. He also made thisapplication to Court in terms of the provisions of Article 126(2) of theConstitution.
In response to the Petitioner's application, the 1 st to 6th Respond-
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ents in their objections took up the position that Air Lanka was not aninstrument and/or agent of the State and that the Petitioner was notentitled to maintain this application as the alleged acts or omissionscomplained of do not fall within the phrase 'executive or administrativeaction.' They further stated that the appointment of the 13th Respond-ent was proper, valid in law and not in violation of any fundamentalright. With regard to the circumstances leading to the appointment ofthe 13th Respondent, affidavits were submitted from the former Chair-man, a former Director and the Human Resources Manager. An affida-vit from the Consultant was also submitted.
The 7th to 11th Respondents who are the Chairman and membersof the new Board of Directors (the 6th Respondent who was a Directorof the former Board being a member of the present Board as well),state that at the time they took office as Directors of Air Lanka, thecontract of employment of the 13th Respondent had already been madeand he had assumed office as International Relations Manager. Theysubmit that they were advised that they are bound by the said con-tract.They further state that they had not taken a decision in regard tothe appeal made to the new Board of Directors by the Petitioner as thisapplication was pending before Court. It is their submission that thedecision not to promote the Petitioner does not amount to an action-able violation of the Petitioner's fundamental rights entitling him to re-lief under Article 12 of the Constitution.
The 13th Respondent admits that he assumed duties as Interna-tional Relations Manager on 3.5.93. He states that he was admittedand enrolled as an Attorney-at-Law in November, 1989. In 1990, hebecame a graduate student at the Institute of Air and Space Law atMcGill University, Canada, his academic and professional qualifica-tions having been considered sufficient to exempt him from the re-quirement of a bachelor's degree. The course was of two years dura-tion and he was awarded a Master's degree.
Prior to being appointed International Relations Manager, he wasfirst interviewed by the Consultant and later by a panel comprising the2nd Respondent, then Chairman of Air Lanka, the Human ResourcesManager and the Chief Financial Officer. Their recommendations wereapproved by the Board of Directors, subject to his appointment being
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on a contract basis and limited to a period of two years initially. Hedenies that he has been unduly favoured and states that his appoint-ment has been made on merit.
The 13th Respondent points out that the Petitioner's academic quali-fications are of a general nature and not specially oriented to aeronau-tical law or organization, that the Petitioner is not an Attorney-at-Lawand that he also lacked the minimum 5 year employment qualificationwith Air Lanka. He submits that he has been advised that the petitiondoes not disclose grounds entitling the Petitioner to relief under theprovisions of Article 12 of the Constitution.
Although the learned Deputy Solictor-General, at the commence-ment of his argument, gave indications that he would maintain that theacts of Air Lanka did not constitute executive or administrative action,he withdrew from pursuing the question of jurisdiction and confinedhimself to the facts.
Counsel for the other respondents too made no serious attempt topersuade the Court that the acts complained of did not amount to ex-ecutive to administrative action within the meaning of Articles 17 and126 of the Constitution. In any event, this question has been dealt withexhaustively by this Court in Rajaratne v. Air Lanka Ltd.,(1) and I seeno reason to take a different view.
I have already set out the sequence of events leading to the exclu-sion of the Petitioner from appointment as International Relations Man-ager.
Although the former Board of Directors failed to enlighten this Courtof the circumstances in which the 13th Respondent came to make hisapplication for this post, learned President's Counsel for the 7th to11th Respondents who are members of the present Board of Directors,with exemplary correctness, submitted an affidavit on 7.3.94 from thepresent Company Secretary and Secretary to the Board of Directors,together with copies of certain documents relevant to this matter.
It appears from the material so furnished that oneTissa Abeyratne,the former International Relations Manager of Air Lanka, had addressed
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a letter dated 21.11.91 (7 R4) to the former Chairman, the 2nd Re-spondent in these proceedings, enclosing a resume of the 13th Re-spondent's career, while the latter was still a student at Me Gill Univer-sity, recommending him “for a management positionin the
marketing – legal field." By letter dated 25.1.92 (7R5) addressed toTissa Abeyratne by the Consultant, to whom the said letter had beenreferred, the Consultant has stated, inter alia, as follows:
“Chairman passed on to me your letter to him regarding LasanthaHettiarachchi. We discussed the matter and I indicated to himthat the applicant shows promise and should be invited over for achat when he returns to Sri Lanka. It appears from your letter thathe will be returning to Sri Lanka (if he has not done so already)after concluding his Masters.
I agree with you totally that he deserves a very close look for heshows signs of a person who could contribute very much toAirlanka. I would, therefore, suggest that you request him to con-tact me in Colombo and we could then have a preliminary chatwith a view to finding out where exactly he could serve Airlankabest. He seems to have qualifications which would serve boththe Legal Division as well as International Relations. You havealso referred to a Marketing-Legal field. Perhaps you could am-plify on that."
Although the letter refers to Lasantha Hettiarachchi, the 13th Re-spondent, as the "applicant", he had made no application at that stage.The 13th respondent's 'application' (7R6) is as follows :-
"Lasantha Hettiarachchi437891
101/1 -3/1 S.G.'s
Quarters
Kew Road, Colombo 2.
26 March, 1993.
Mr. Dunstan JayawardeneChairman/Managing Director
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Airlanka Ltd.
York Street,
Colombo 1.
Sri Lanka.
Dear Mr. Jayawardene,
Further to our telephone conversation and the subsequent meet-ing I had with Mr. Shibly Aziz, I would like to submit an applica-tion to be considered for the post of manager in the InternationalRelations department of Airlanka.
In the course of my meeting with Mr. Aziz, he explained to methe present structure of the International Relations department,the possible entry level for a person with my qualifications andexperience, and the type of emolument package I could expectfrom Airlanka.
I have come back to Sri Lanka with the intention of staying. I amprepared to give the best of my best years to our national airlineif presented with the proper opportunity and the commensuratecompensation package.
I am looking forward to meeting with you and further discussingthe possibility of working in International Relations at Airlanka. Acopy of my resume and copies of two letters of recommendationare submitted herewith for your perusal. I would be very gratefulfor an early response on this matter.
Thank You.
Yours sincerely,
(Signature)
The affidavit of the Human Resources Manager indicates that inaccordance with the directive of the then Chairman/Managing Director,the 13th Respondent was called for an interview on 31.3.93 with theChairman/Managing Director, Chief Financial Officer and the HumanResources Manager and his application "was accordingly recommendedto the Board on a 02 years contract on a Rs. 20,000/-monthly pay plusRs. 2190/- entertainment allowance with official transport from home
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to office in lieu of reimbursement of 30 gallons of fuel." The reasongiven for the post not being advertised in the newspapers is that 'therecruitment was done only to find a person for a limited period of time."
It was the submission of the learned Deputy Solicitor – General*who appeared for the former Board of Directors, that what he called the"non appointment" of the Petitioner and the appointment of the 13thRespondent were separate issues and that there was no nexus be-tween them. He contended that if the matter was so viewed, the ques-tion of discrimination would not arise.
But the material before us is to the contrary. The letter of TissaAbeyratne dated 21.11.91 (7R4) addressed to the then Chairman/Man-aging Director was without doubt a step towards sponsoring the 13thRespondent, who was yet at McGill University, for a suitable positionat Airlanka.The Consultant's letter to Tissa Abeyratne dated 23.1.92(7R5) shows that discussions had already been held between the Chair-man and the Consultant as to the possibility of finding a suitable posi-tion for him. The Consultant, even at that stage, had expressed theview that the 13th Respondent "seems to have qualifications whichwould serve both the Legal Division as well as International Relations".The application of the 13th Respondent dated 26.3.93 (7R6) refers to atelephone conversation between him and the Chairman and a subse-quent meeting that he had with the Consultant, further to which he wassubmitting his 'application* for the post of Manager, International Rela-tions.
In the meantime, the Petitioner had been interviewed on 13.1.93by a panel of high-ranking officials including the Consultant, who hadrecommended him for the said post. The Petitioner had learnt on orabout 23.2.93 through the Human Resources Manager that althoughthe interview panel had recommended his appointment, the Board ofDirectors at that time had decided to defer the same. He had evenhanded over a letter of protest (P5) dated 2.3.93. It was on 6.4.93 thatthe Petitioner had learnt that the Board was considering appointing the13th Respondent.
The Consultant's affidavit too indicates that a few months after thePetitioner was recommended for the said post, the former Chairman
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had asked him to meet and assess the 13th Respondent and ascertainhis suitability to join the Department as Manager. He further statesthat he met the 13th Respondent “a few times" and "was satisfied . .
. that he would be suitable for a management position at InternationalRelations and thereafter conveyed (his) views to the then Chairman"and that he believes that "the former Chairman had also interviewedhim (the 13th Respondent) and come to the same conclusion."
Thus it is seen that the Consultant as well as the Chairman hadsatisfied themselves as regards the 13th respondent's suitability forthe post even before he submitted his 'application'. It is futile, there-fore, to suggest that there was no nexus between the failure to appointthe Petitioner and the appointment of the 13th Respondent :The latterdisplaced the Petitioner from a position for which he had earlier beenregarded as qualified. The appointment of the 13th Respondent wasnecessarily conditional upon the removal of the Petitioner as acompetitior.
The failure to appoint the Petitioner is sought to be justified by theformer Board on the basis that the Petitioner was unsuitable for man-agement responsibilities at that point in time.The Chairman in his affi-davit states that he recalls that at the Board Meeting at which therecommendation to promote the Petitioner was discussed, the Boardunanimously decided not to take action on the recommendation as inits view the Petitioner was not yet ready for a promotion. He furtherstates that it was the view of the members of the Board that ‘steps betaken to look for someone suitable, even from outside Airlanka, sincethe only applicant who had applied pursuant to the Internal Staff Va-cancy Notice was the Petitioner himself."
We do not know whether the Chairman at the time, namely the 2ndRespondent, made the Board of Directors aware of the lurking, albeitshadowy, presence of the 13th Respondent in Air Lanka from 1991/1992, as regards whose suitability for this post he had already formeda favourable opinion. That would have obviated the necessity "to lookfor someone suitable”. The minutes of that Board Meeting, which areso vital to the matter under consideration, have curiously not beenfurnished to us.
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The alleged unsuitability of the Petitioner has to be examined inthe light of certain other averments in paragraphs 6 and 7 of the formerChairman's affidavit. He says that within the last year of his tenure asChairman/Managing Director, the Consultant brought to his notice andthat of Mr. Wijayatilake, the 4th Respondent, who was another fellow-Director, certain difficulties he experienced, due to constraints of time,of effectively supervising and managing the work of this Departmentand he requested him to provide him with a capable Manager to takeover some of his responsibilities, leaving him to serve in the capacityof a Consultant for which he was originally recruited. He discussedthis matter with several senior Managers of Air Lanka who were famil-iar with the work performed by the International Relations Department,including the former Chief Marketing Officer as well as the presentChief Marketing Officers, and it was the general consensus that someone from outside the International Relations Department should bebrought in at managerial level, since the most senior person in theInternational Relations Department, namely the Petitioner, was unsuit-able for management responsibilities as yet. He says that he as wellas Mr. Wijayatillake fully concurred with these views, since both ofthem had first hand experience of the work and disposition of the Peti-tioner.
Mr. Wijayatilake too, in his affidavit, states with specific referenceto paragraphs 6 and 7 of the Chairman's affidavit that it sets out cor-rectly the factual position and the conclusions which the Chairmanand he had reached with regard to the Petitioner.
If, therefore, the general consensus was that the Petitioner wasnot suitable for the post of International Relations Manger, one fails tosee why the management decided to engage in the futile exercise ofinviting applications from within, being well aware that the only likelyinternal candidate for that position would be the Petitioner himself.Moreover, as specifically admitted by the former Chairman and theBoard of Directors in their statement of objections, it was the Peti-tioner who, in or about October, 1992, requested that his position asSenior International Relations Executive be upgraded to Manager leveland it was in response to that request that the Consultant had a StaffVacancy Notice (P3) published, in terms of which the said vacancywas to be filled by internal recruitment.
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On the other hand, if the Board was not satisfied as regards thesuitability of the Petitioner and was really looking for a more qualifiedperson for this important post, it should in the best interests of AirLanka have called for applications from outside as well, without hav-ing recourse to what now appears to be a sham recruitment procedureby internal advertisement.
Nor does the matter end there. The interview panel that recom-mended the Petitioner for promotion had consisted of the Consultanthimself (who had functioned as the Petitioner's Head of Departmentsince February, 1990), the Training Co-ordinator of Air Lanka, the Fi-nancial Advisor to the Chairman and a representative of the Ministry ofPolicy Planning and Implementation. There is no gainsaying that theConsultant, directly under whom the Petitioner worked, would have hadthe best opportunity of assessing the Petitioner's suitability for thispost. As already mentioned, it was the Consultant who had taken stepsto upgrade the Petitioner’s post by calling for applications from within,knowing very well that the Petitioner would be the obvious choice.ThePetitioner's application (P4) had been submitted through the Consult-ant himself, who had recommended the same. But, the Consultantnow says in his affidavit of 12.8.93 that some very senior Managers atAir Lanka and the then Chairman and Mr. Wijayatillake, Director, werenot satisfied with the Petitioner's performance and that he had, on manyoccasions, informed the Petitioner of these criticisms and had advisedhim to remedy his shortcomings, stating that he too had observedthem.
If that was the Consultant's own assessment of the Petitioner, Ifail to see why he should have taken steps to upgrade his post andeven recommend him for appointment, particularly if, as he now claims,he was aware that the Chairman "was very dissatisfied with him (thePetitioner) "and he too shared the concerns of the Chairman and Mr.Wijetillake about the Petitioner's inadequacies.
The Petitioner, in his counter affidavit dated 1.9.93, replying to theaffidavits of the Respondents, categorically denies that during his serv-ice he had ever been faulted or found wanting in his work. He furtherdismisses as false and malicious, the allegations that he was unsuit-able for management responsibilities, or lacked competence and con-
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fidence, or showed inability to effectively handle situations which re-quired quick responses and reactions, or was careless and irresponsi-ble. The Petitioner also points out that he received a promotion afterone year in service and had earned his increments on time – which isinconsistent with the position that he was inefficient or incompetent orthat his work and conduct was in any way unsatisfactory and that onno occasion had there been any adverse comments in regard to theperformance of his duties.
If the Petitioner was found wanting, as it is now alleged, one wouldhave expected the management to bring those matters to the Petition-er's notice in writing and even warn him suitably. On the contrary, themanagement not only gave him a promotion but even took steps toupgrade his present post.
The Petitioner further states that during his career at Air Lanka hehas been nominated by the Chairman, with the agreement of the Con-sultant, to attend about 35 airline meetings and about 30 bilateral (gov-ernment-to-government) meetings. Even in July 1993, after the 13thRespondent had assumed duties, the Petitioner had accompanied theConsultant for a bilateral meeting in Japan.
The former Chairman, in his affidavit, states that notwithstandingthe Petitioner's good academic background which furnished him withan aptitude for research, he had noticed in him a "lack of competenceand confidence in other areas relating to international relations and aninability to effectively handle situations which required quick responsesand reactions" and that the Petitioner "often found it difficult to bring tosituations a pragmatic approach, a major disadvantage in success-fully handling communications or negotiations with other airlines andaviation authorities." He also "found him at times careless or irrespon-sible in matters entrusted to him." He says that he had discussedthese matters with the Consultant who informed him that he was alsomindful of them and that he was trying his best to assist the Petitionerto overcome some of these difficulties, though he was unsure whetherthese could be remedied in a short time. In the meantime, the Chair-man says, "we decided to give him as much exposure and experienceso that he could overcome them."
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If so, one wonders whether such enormous expenditure of publicfunds in allegedly helping some one to overcome his personal defi-ciencies can be justified? The Government of Sri Lanka admittedlyholds approximately 95% shares of Air Lanka and even the other share-holders are state sector institutions such as the Bank of Ceylon, Peo-ple's Bank, National Savings Bank, Salu Sala and the National Insur-ance Corporation. The material furnished by the Respondents, how-ever, does not warrant this condemnation of the Petitioner. He wasobviously included over and over again in the delegations because hehad a positive contribution to make and not for altruistic purposes.
According to the promotion/recruitment procedure at Air Lanka (P7),where the level of a post to be filled is that of a Departmental andSectional Manager, the specific approval of the Chairman/ManagingDirector must be obtained to fill such vacancy. One can, therefore,assume that the steps taken to fill the post of International RelationsManager by internal recruitment had the sanction of the Chairman/Managing Director. It appears from the affidavit of the Human ResourcesManager that, though the panel which interviewed the Petitioner hadrecommended him for selection, special approval was necessary fortheir recommendation as the Petitioner lacked the stipulated five yearsexperience. That apparently was the reason why the matter was broughtto the notice of the Board at all.
It is admitted that the Petitioner had the requisite two years expe-rience in the Senior Executive Grade (E V). At the time of his applica-tion, however, he had completed only four years service at Air Lanka.The subsequent affidavit of the Human Resources Manager indicatesthat the practice had been for Board approval to be obtained in suchsituations; and, such approval was ordinarily granted. In fact, a recom-mendation made in regard to a post of Manager (M 1) by the samepanel which interviewed the Petitioner had also been put to the Boardfor their approval, since the person recommended had lacked the stipu-lated experience of two years in the Senior Executive Grade (E V), andthe Board had approved his appointment at the very meeting at whichthe recommendation in respect of the Petitioner was turned down. Thefact that the Petitioner was short of the stipulated experience by oneyear at the time of his application would, therefore, not have stood inhis way; the management itself does not seek to justify his non- ap-pointment on that basis.
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I shall now consider another aspect of the matter before us. TheConsultant admits the receipt of the Petitioner's letter dated 24.4.93(P6), which refers to two meetings between the Consultant and thePetitioner, both said to have been initiated by the Consultant, whichhave a direct bearing on the circumstances surrounding the non-ap-pointment of the Petitioner to the post in question.The Petitioner reca-pitulates the suggestions said to have been made by the Consultant atthese two meetings in considerable detail. He requests the Consultant"to inform the Chairman of the contents of this letter and to transfer tohim (his) request that this matter be handled through normal adminis-trative procedures such as were applied at the time of (his) recruit-ment".
The Consultant, in his affidavit dated 12.8.93, dealing with the saidletter states at paragraph 11 as follows:
"I pointed out to the Petitioner that the said letter contained inac-curacies particularly relating to the offer of alternative posts tothe Petitioner and the role attributed to Mr.Tissa Abeyratne (asMr. Abeyratne did not recommend that Mr. Hettiaratchi should betaken to Airlanka). I requested the Petitioner to correct them asotherwise I shall have no alternative but to send my comments tothe Chairman when forwarding P6. Though the Petitioner agreedto consider this and revert to me, he has still not done so."
The Chairman and Directors of the former Board (other than the6th Respondent) went out of office in May, 1993. It does not appearthat the letter P6 was forwarded even to the Chairman of the presentBoard of Directors, with or without the Consultant's comments. De-spite the Consultant's observations to the contrary, the letter 7R4 of21.11.91 shows that Tissa Abeyratne did not in fact recommend the13th Respondent to the then Chairman for a management position atAir Lanka.
P6 certainly was not a letter that could have been leftuncontradicted if it contained “inaccuracies", judging by its contentswhich were damaging not only to the Consultant, but to the manage-ment itself. But yet, there the matter remains. One cannot, therefore,help but accept that it sets out accurately what went on behind the
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scenes, particularly as the Petitioner stands vindicated in regard tothe matter of Tissa Abeyratne's recommendation regarding the 13thRespondent.
So also, the letter of protest dated 2.3.93 (P5), handed over by thePetitioner to the then Chairman, the receipt of which has been admit-ted, which states, inter alia, as follows :
"I have no reason to think that the decision to defer my
promotion was due to any deficiencies in my educational back-ground, sense of responsibility, loyalty to the company, dischargeof duties or staff relations. If one or more of these deficiencieswas identified, I am sure that it would have been brought to mynotice at some time during the past few years
There again, the management chose not to respond, thus givingcredence to the Petitioner's denial of the allegations now made againsthim.
It would be relevant at this stage to look at the qualifications andexperience of the 13th Respondent. He had obtained his Master's de-gree from McGill University in October, 1992. His experience as anAttorney-at-Law in Sri Lanka had been from November, 1989 to Octo-ber, 1990, a period of less than one year; and his work as a lawyer didnot involve aviation or related matters. He had no working experiencewhatsoever with any Airline.
In regard to the suitability of the 13th Respondent for appointmentto this post, the then Chairman states that the Consultant who wasrequested to assess his suitability gave a very favourable assess-ment, which the Consultant informed him was arrived at after severalmeetings which he had with the 13th Respondent.
The Consultant, however, states that he met the 13th Respondenta few times and was satisfied that he would be suitable for a manage-ment position at International Relations.
The then Chairman further states that he too met the 13th Re-spondent and was very favourably impressed with his academic quali-fications and his overall personality and disposition.
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From the application of the 13th Respondent, it appears that hehas had a meeting with the Consultant prior to his applying for thepost. He goes on to say that he was looking forward to meeting withthe Chairman and further discussing the possibility of working in Inter-national Relations.
In his affidavit, the 13th Respondent states that prior to his ap-pointment he was interviewed first by the Consultant and later by aninterview panel comprising the then Chairman, the Human ResourcesManager and the Chief Financial Officer.
The opportunities available to the management to assess the suit-ability of the 13th Respondent were thus limited to those mentionedabove.
The Human Resources Manager, by way of justification of the pro-cedure adopted in appointing the 13th Respondent, states that "thereare instances when the services of officers are needed to meet shortterm manpower requirements, they have been employed on contractbasis without calling for applications for such posts in the press. Suchsteps have been taken only when the services of highly specialisedpersonnel such as pilots, engineers and similar professionals areneeded due to exigencies of service". He further states that “the postwas not advertised in the press since the recruitment was done only tofind a person for a limited period of time."
One cannot see the logic of his reasoning. Initially, steps weretaken by the Consultant to upgrade the post of Senior InternationalRelations Executive held by the Petitioner to that of International Re-lations Manager, at the instance of the Petitioner himself and suchappointment was sought to be made by internal recruitment.The pro-posal was not intended to increase the cadre in the Department. Interms of the manual on promotion/recruitment procedure (P7), it is AirLanka‘s policy that “to the maximum extent possible, vacancies withinthe approved establishment shall be filled by internal candidates".ThePetitioner in his counter affidavit states that it was the intention of theConsultant that with the Petitioner's appointment to the upgraded postof Manager (M 1), the post that he held (at E V) would be abolished.
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If the Board was not satisfied with the recommendation made bythe interview panel in regard to the appointment of the Petitioner, theonly legitimate course open to it was to call for applications from ex-ternal candidates, through proper advertisement. There is no justifica-tion whatsoever for making such appointments by private negotiation,under a veil of secrecy. Had it not been for the very proper step takenby learned President's Counsel for the present Board of Directors, eventhe circumstances surrounding the ‘application1 of the 13th Respond-ent would still have remained a mystery. We now know that while the13th Respondent was yet a student at McGill University, moves wereafoot to find him a suitable place at Air Lanka. His appointment to thepost in question was purely on the basis of his academic and profes-sional qualifications, in total disregard, from a management point ofview, of the sine qua non of experience.
The stipulated qualifications and requirements for a Sectional Man-ager, Grade M I at Air Lanka are:
Internal (Promotions) – 5 years experience at Air Lanka outof which 2 years should be in Senior Executive (E V) grade.
External (Recruitment) – A degree from a recognized univer-sity and 5 years managerial experience.
The emphasis placed on experience is thus quite evident.
The Petitioner's complaint is that his fundamental right to equalitywithin the meaning of Article 12(1) of the Constitution had been vio-lated by the 1 st and/or 2nd to 6th Respondents. The principle of equal-ity applies from the stage of one's recruitment to the state sector rightup to the end of one's career. It applies to the ever important matter ofpromotions too. This Court has, in dealing with the equality provi-sions of the Constitution, insisted that while there should be properschemes of recruitment and promotion, their implementation shouldnot be tainted by caprice, bias or prejudice. Favouritism on the onehand or the evil eye on the other, necessarily militate against the veryconcept of equality and should, therefore, be abhorred.There must, inthe public interest, always be honesty, openness, and transparency inregard to executive or administrative acts.
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The Petitioner, as is evident from the circumstances referred toabove, had a legitimate expectation of being appointed InternationalRelations Manager.The post had been created by upgrading his presentpost. He had been recommended for appointment by a duly consti-tuted panel of high ranking- officials, including the Consultant himself.The fact that he lacked a part of the stipulated experience at the timeof his application would not, as shown above, have stood in his way. Itwas not an insuperable obstacle. In any event, the person appointed inpreference to him had no experience at all. Further, the avowed policyof Air Lanka was to fill such vacancies, to the maximum extent possi-ble, by internal candidates. Yet, the Petitioner had not only been de-nied his promotion, but he now finds himself condemned in these pro-ceedings by the very management that took steps towards creating apost with a view to promoting him.
It must be emphatically stated that the material furnished to thisCourt by the management does not, in the absence of any contempo-raneous record showing that the Petitioner had been found wanting inany respect and that appropriate action had been taken in that behalf,justify the condemnation of the Petitioner. The inability of the manage-ment to furnish such documentary evidence inevitably leads to thepresumption that there was no such material available. Even after thePetitioner categorically denied all such allegations, by way of counteraffidavit, characterising them as false and malicious, and in the faceof his assertion that there had been no occasion for any adverse com-ments on the performance of his duties, the Human Resources Man-ager in his counter affidavit of 23.9.93, could not contradict the Peti-tioner, although he made some inconsequential observations in regardto other matters of much less relevance and importance.
The allegations of incompetence, inefficiency and lack of respon-sibility levelled against the Petitioner are thus without foundation.Theyevidently are ex post facto explanations in an attempt to justify thearbitrary and irrational manner in which the 13th Respondent's appoint-ment was made. They clearly show that the Petitioner was looked uponwith an evil eye, whereas the 13th Respondent was regarded with pe-culiar favour. The 1st Respondent had a legitimate interest and a pub-lic duty in ensuring that the best candidate was appointed. The salu-tary procedures and provisions for doing so were totally disregarded
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and the 13th Respondent was appointed for reasons that had no ra-tional connection with the object of appointing the best qualified per-son. The Petitioner was consequently not only treated unequally, butalso offensively discriminated against. The discrimination was bothunwarranted and invidious.
I, therefore, hold that the Petitioner's fundamental rights under Ar-ticle 12(1) of the Constitution have been violated as aforesaid.
This brings me to the question of validity of the 13th Respondent'sappointment. There was no vacancy advertised by Air Lanka in re-spect of which the 13th Respondent could have made an application.He has secured his appointment as International Relations Managerotherwise than through the recognized procedure for such recruitment.He does not even have the basic requirements necessary for appoint-ment as a Manager, Grade M 1 .The appointment depended upon theviolation of the Petitioner's Constitutional right to equality by the dem-onstration of undue partiality towards the 13th Respondent. I have nohesitation, therefore, in holding that his appointment is invalid. Ac-cordingly, I direct that the appointment of the 13th Respondent be ter-minated forthwith.
Learned President's Counsel for the 7th to 11th Respondents sub-mitted that even in the event of the Court holding that there had beendiscrimination, it should still refrain from appointing the Petitioner tothe post in question. It was his contention that in the matter of assess-ment of the suitability of candidates for a post, the Court should notsubstitute its decision for that of the Board of Directors. He drew ourattention to the fact that the new Board of Directors, appointed in May,1993, had refrained from taking a decision in regard to this matter asthis application was pending before Court. He, therefore, urged that itbe left open to the present Board to choose a suitable candidate, sub-ject to whatever conditions the Court may impose.
Although the Court has a wide discretion in terms of Article 126 (4)of the Constitution in granting relief and making such directions as itmay deem just and equitable, I do, in the circumstances of this case,refrain from making an order of appointment. Instead, I make orderand direct that steps be taken forthwith by the 1 st and 6th to 11 th
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Respondents to fill the resulting vacancy in accordance with the 1stRespondent's policy aforementioned and in terms of its promotion/re-cruitment procedure (P 7), and that the appointment of the Interna-tional Relations Manager be made within three months of the date ofthis order.
I further direct that the application already made by the Petitionerbe taken as an application for the said post, subject to any additionalmaterial he may submit, and be considered on its merits and that theopinions/views expressed by any member of the former Board of Di-rectors or by any official of the 1 st Respondent including the Consult-ant in the course of these proceedings concerning the Petitioner betotally disregarded.
Having regard to the wholly unwarranted discrimination and theneedlessly offensive manner in which the failure to appoint the Peti-tioner was sought to be justified, I award the Petitioner a sum ofRs.50,000/- as a solatium for the violation of his fundamental rightsguaranteed by Article 12 (1) of the Constitution, payable by the 1stRespondent. I
I further order that the 1 st Respondent pay the Petitioner a sum ofRs. 5,000/- as costs.
AMERASINGHE, J. -1 agree.
PERERA, J. -1 agree.
Relief granted.