027-SLLR-SLLR-1999-V-2-SAMARASINGHE-v.-NATIONAL-SAVINGS-BANK-AND-OTHERS.pdf
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Samarasinghe v. National Savings Bank and Others
287
SAMARASINGHE
V.
NATIONAL SAVINGS BANK AND OTHERS
SUPREME COURTFERNANDO, J.,
GUNAWARDANA, J. ANDGUNASEKARA, J.
S.C. APPLICATION NO. 392/96FEBRUARY 27, 1999
Fundamental rights – Appoinment of Chief Legal Officer – Deviation from theprevailing scheme of recruitment – Failure to consider the claim of an eligiblecandidate – Article 12 (1) of the Constitution.
By an advertisement in the newspaper the 1st respondent Bank called forapplicants for the post of Chief Legal Officer. The candidate who was placed firstamong the applicants declined the post and the post was advertised asecond time. On that occasion also the candidate who was placed first declinedappoinment and no appoinment was made. The advertisement was in keepingwith the prevailing scheme of recruitment. It called for applications from personswho amongst other qualifications had to be Attomeys-at-Law and Notaries Publicwith at least 15 years experience in Court and notarial work. The petitioner appliedon both occasions and was placed second in order of merit. After the candidateplaced first declined the post on each occasion, the petitioner was not consideredfor appoinment. Instead the Board of Directors decided "to appoint the most seniorofficer amongst the legal officers in the Bank to act as Chief Legal Officer" withoutadvertisement. Consequently, the 6th respondent who had not applied for the postand who did not possess the basic qualification of 15 years practice asan Attoney-at-Law and Notary Public was appointed to act as Chief Legal Officer.
Held:
The decision of the Board to deviate from the prevailing scheme of recruitmentwas ad hoc and arbitrary and the appointment of the 6th respondent was badin law. The petitioner's fundamental rights under Article 12 (1) were infringed bythe failure to consider her for appoinment.
APPLICATION for relief for infringement of fundamental rights.
288
Sri Lanka Law Reports
[1999] 2 Sri LR.
R. K. W. Goonasekera for the petitioner. *
Shibly Aziz, PC and S. Fernando, SSC for the respondents.
Cur. adv. vult.
May 28, 1999.
GUNASEKARA, J.
The petitioner who had joined the 1st respondent Bank as an AssistantLegal Officer (Grade IV) in 1985 had been promoted to a post ofAssistant Legal Officer (Grade III) in 1990 which designation had beensubsequently altered to Legal Officer (Grade II). According to thepetitioner in terms of the scheme of recruitment of the Bank's .LegalDepartment the cadre of Legal Officers as evidenced by 'P3' was asfollows:
Chief Legal Officer-GradeI-onepost
Legal Officer-GradeII-onepost
Legal. Officer-GradeIII-fiveposts
Assistant Legal Officer -GradeIV-onepost
By an advertisement published in the “Sunday Observer" of 25thJune, 1995 (P4) the bank had called for applications for the postof Chief Legal Officer (Grade I). According to the said advertisementamongst other qualifications the applicants had to be Attorneys-at-Law and Notaries Public with at least 15 years experience in Courtand notarial work. The petitioner had been the only internal candidateamongst the nineteen applicants who had applied in response to thesaid advertisement. At an interview that was held on 5.9.95 oneMr. G. M. Gunasekera had been placed first and the petitioner second.Although Mr. Gunasekera who had come first at the interview wasoffered the post he had declined to accept it. However, the petitionerwho had been placed second at the interview had not been offeredthe said post but instead the Bank had re-advertised the post on
by the advertisement marked P9.
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The petitioner had responded*to the said advertisement and hadsubmitted an application (P10). On seeing the petitioner's applicationthe petitioner states that the 5th respondent had advised the petitionernot to apply for this post as ^he was too young and was a femalebecause the preference of the Chairman was for a male". However,she had been called for an interview in response to her application(P10) to be held on 10.1.96. 18 candidates had presented themselvesat the said interview, amongst whom was one other employee of the1st respondent's Bank other than the petitione'r. The said officer,namely Mr. K. M. P. Kulatunga, a Regional Legal Officer attachedto the Kurunegala branch of the 1st respondent Bank lacked eligibilityas he had not obtained a Notarial Licence as evidenced by (P12).The petitioner states that after the said interview that the legal branchhad been informed that Mrs. C. Ellawala had scored the highest marksat the said interview and Mr. Kulatunge and the petitioner had scoredthe second and third highest marks, respectively. Mrs. Ellawala whowas selected for appoinment had declined to accept the post. Bycircular letter dated 1.4.96 marked (P14) the 3rd respondent hadappointed the 6th respondent who had not even applied in responseto the 2nd advertisement (PI 0), as acting Chief Legal Officer (GradeI) for a period of 6 months with effect from 1.4.96 subject to con-firmation in the said post after a proper assessment of her performanceduring the said period together with a payment of an acting allowanceof Rs. 1,787.50 per month from 1.4.96.
The petitioner's contention is that the said appoinment of the6th respondent in the aforesaid manner is arbitrary, capriciousdiscriminatory and is in violation of Article 12 (1) of the Constitutionand bad in law.
The position of the 2nd respondent (the Chairman of the 1strespondent's Bank) is that the management of the Bank decided thatthe post of Chief Legal Officer should be filled by a fairly senior personin the legal profession and therefore the Bank decided to advertisethe post to try and recruit a senior experienced person from outsidethe Bank.
290
Sri Lanka Law Reports
[1999] 2 Sri LR.
With this in mind the 1 st respondent Bank advertised in the 'SundayObserver1 of 25.6.95 (P4). Candidates who responded to the saidadvertisement were called for an interview which was held on 25.9.95by a panel consisting himself, the 3rd respondent and Mr. KolithaDharmawardena, Senior State Counsel. Subsequent to the said in-terview the panel recommended one Mr. G. M. Gunasekera as themost suitable candidate to fill the post and that the panel also decidedthat in order of merit the petitioner and Mr. R. C. Karunakaran wereplaced second and third at the interview: however, no recommenda-tions were made in regard to them. He also admits that since thecandidate recommended for selection did not agree to accept theappointment that he had brought this fact to the notice of the Boardof Directors who decided that the Bank should re-advertise the postof Chief Legal Officer. The 2nd respondent also admits that the postwas re-advertised on 19.11.95 by (P9) and at an interview held inresponse to that advertisement on 10.1.96 by a panel consisting ofhimself, the 5th respondent and Mr. Kolitha Dharmawardena that thepanel's unanimous view was that Mrs. C. Ellawala was the mostsuitable candidate to be selected to the said post, and that on thisoccasion too that the panel did not express any view about any othercandidate but stated that Mr. K. M. P. Kulatunge and the petitionerwere placed 2nd and 3rd in the order of merit. It is the position ofthe 2nd respondent that on this occasion too that Mrs. C. Ellawalathe candidate who was recommended for appointment declined toaccept the appointment and that the had informed the Board of thisfact. The 2nd respondent further states that at a Board meeting heldon 13.2.96, the Directors were informed that the selected candidateshad refused to accept the post of Chief Legal Officer on two occasions.
According to the original minutes of the Board meeting held on30.1.96, after discussion the Directors decided:
hot to call for applications for the post of Chief LegalOfficer immediately:
to authorise the Chairman to select a suitable officerfrom among the Legal Officers in the Bank and appointto act as Chief Legal Officer. This officer may be given
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a fair and reasonable time (about 6 months) to prove herskills/aptitudes required for the post. Thereafter, if thebank is not satisfied with the performance of the officerconcerned, the Bank should re-advertise the post of ChiefLegal Officer; and
to obtain the services of a Legal Consultant on an adhoc and piece meal basis if and w.hen required (2R3).
That Board minute does not suggest that the Chairman informedhis colleagues that on both occasions the petitioner was the next mostsuitable and qualified candidate. The Board was not invited to considerwhether she should be appointed as Chief Legal Officer.
While the Board decision as originally recorded gave the petitionera chance of being considered for an acting appointment, at the nextBoard meeting on 27.2.96 the relevant part of paragraph 2 (underlined)was deleted and replaced, without explanation, by the following:
"To appoint the most senior officer amongst the legal officers inthe Bank to act as Chief Legal Officer."
That denied the petitioner the chance of even an acting appointment.
On a consideration of the submissions made and a perusal of thedocuments filed, it is to be noted that the 2nd respondent admits thecontention of the petitioner that there is a scheme of recruitment tothe Bank in respect of the legal department as evidenced by (P3).It is common ground that the advertisements (P4) and (P9) callingapplications for the post of Chief Legal Officer, Grade I, in the 1strespondent Bank had been made in keeping with the scheme ofrecruitment (P3).
In my view the Board decision (2R3) dated 13.2.96 to deviate fromthe prevailing scheme of recruitment was ad hoc and arbitrary, andsought to achieve indirectly what it could not do directly.
292Sri Lanka Law Reports[1999] 2 Sri LR.
Thus, the appointment of the 6th respondent who had not evenapplied in response to the advertisements (P4 & P9) for the obviousreason that she did not possess the basic required qualification of15 years' practice as an Attomey-at-Uaw and Notary Public as theChief Legal- Officer, Grade I (acting) with the prospect of beingconfirmed after 6 months (whether or not she had the minimumqualifications required by the scheme of recruitment) together with anacting allowance of Rs. 1,787.50 per month by (P14) was violativeof the prevailing scheme of recruitment.
Therefore, I hold that the said appointment of the 6th respondentby (P14) is bad in law. Hence, I quash the appointment of the 6threspondent as Chief Legal Officer, Grade I (acting) made by (P14)to take effect one month from today. I further direct the 1st respondentBank to call for applications for the said post from candidates withinthe Bank who are eligible for selection in accordance with the schemeof recruitment marked (P3) within one month from today.
The fact that the 6th respondent has functioned as acting ChiefLegal Officer since 1.4.96 should not be given any weightage in theselection process.
The petitioner's fundamental right under Article 12 (1) has beenviolated by the failure to consider her for appointment, first as ChiefLegal Officer, and, subsequently, as acting Chief Legal Officer.Although I cannot assume that she would have been appointed if dulyconsidered, nevertheless she is entitled to compensation for the failureto consider her. I
I direct the 1st respondent Bank to pay the petitioner a sum ofRs. 100,000 as compensation together with a further sum of Rs. 20,000as costs.
FERNANDO, J. – I agree.
GUNAWARDANA, J. – I agree.
Relief granted.