030-SLLR-SLLR-2004-V-2-SEELAWANSA-THERO-AND-TWO-OTHERS-v.-TENNAKOON-ADDITIONAL-SECRETARY-PUNLIC.pdf
Seelawansa Thero and Two others v Tennakoon, Additional
SC Secretary. Public Service Com. (Shirani Bandaranayake, J.)
241
SEELAWANSA THERO AND TWO OTHERSvTENNAKOON, ADDITIONAL SECRETARY,PUBLIC SERVICE COMMISSIONSUPREME COURTBANDARANAYAKE, J.
JAYASINGHE, J. ANDUDALAGAMA, J.
SC (FR) APPLICATION NO. 575/2003
3rd JUNE, 23rd JULY AND 14th OCTOBER, 2004
Fundamental Rights – Article 12 (1) of the Constitution – Promotion ofpetitioners as teachers Class I of Sri Lanka Teacher Education Service(SLTES) in violation of the Constitution of the SLTES – Cancellation ofappointments for such violation – Alleged appointment of nine officers in 1999who were similarly circumstanced – Meaning of equal protection of the law.
The petitioners stated that they were officers in the Sri Lanka TeacherEducation Service (SLTES) serving in Class II Grade I. In response to a circulardated 17.09.2001 issued by the 1st respondent (Additional Secretary, PublicService Commission) they applied for selection to class I of the SLTEC. Theywere selected for promotion to Class I and given appointments dated05.05.2002. But on 22.10.2002 the petitioners’ appointments were cancelledon the ground that promotion had been effected in violation or the Constitutionof the SLTES.
The petitioners submitted that they were confirmed officers who were eligiblefor promotion but in 1999 nine officers in Class II Grade I who were alsounqualified had been promoted to Class I. Hence their rights under Article 12(1)of the Constitution had been infringed.
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According to the Constitution of the SLTEC, for promotion to Class I, thepetitioners should have a minimum of five years satisfactory service in Class IIGrade I. But at the time the petitioners applied for promotion they had only oneyear of service in Class II Grade II.
The petitioners alleged that the nine others who were promoted in 1999 did nothave five years service even in an acting capacity in Class II grade 1. Thepetitioners failed to make those nine others respondents to this application.
In 1999 nine Class II grade I officers had been promoted to Class 1 by theCabinet of Ministers under powers contained in Article 55 (1) of theConstitution. However, since the 17th Amendment to the Constitution, thepower of appointment devolved on the Public Service Commission. TheCommission was therefore not in a position to make appointments contrary tothe SLTES minutes, without the requisite qualifications on the part of thepetitioners.
Held:
As nine persons alleged to have been illegally promoted to Class I in 1999were not made respondents, the petitioners are not entitled to challengethose appointments.
Article 12 of the Constitution guarantees equal protection of the law and notequal violation of the law.
Per Bandaranayake, J.
'Two wrongs do not make a rightThe authorities cannot act illegally in
one case because they had acted illegibly in other cases”.
Although in 1999 or 2002 promotion to Class II may have been made afterback dating of appointments of officers in Class II Grade I, which wasirregular the Public Service Commission cannot be compelled to actillegally for the mere reason that illegal appointments had been madepreviously. In the present case one argument adduced was that in 1999promotions were made after back dating appointments of Class II Grade Iofficers. Here the 1st and 3rd petitioners’ appointment to Class II Grade Iwere back dated but not the 15th petitioner’s appointment to Class II Grade
However, all three appointments were cancelled. The petitioners cannotrely on such appointments and compel the Public Service Commission toact illegally on the basis that illegal appointments had been madepreviously.
The petitioners have failed to establish that there had been a violation ofArticle 12(1) of the Constitution.
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Cases referred to:
C.W. Mackie and Co. Ltd. v Hugh Molagoda, Commissioner General ofInland Revenue and Others – (1986) 10 SLR 300.
Gamaethige v Siriwardana and Others -(1988) 1 SLR 384
Jayasekera v Wipulasekera – (1988) 2 SLR 237
T.V. Setty v Commissioner, Corporation of the City of Bangalore AIR -(1968) Mysore 251
Ram Prasad v Union of India AIR – (1978) Rajasthan 131
The Chief Commissioner v Kitty Furi AIR – (1973) Delhi 148APPLICATION for relief for infringement of fundamental rights.
Lakshman Keethisinghe for 1st, 2nd and 3rd petitioners
Rajive Goonatillake, State Counsel for respondents
Cur.adv.vult
November 23, 2004
SHIRANI BANDARANAYAKE, J.The petitioners were officers of the Sri lanka Teacher 01Education Service (hereinafter referred to as SLTES) under theMinistry of Human Resource Development, Education and CulturalAffairs and claimed that at the time of the filing of this applicationthey were serving in Class II Grade I. The 1st petitioner wasattached to the Teacher Education Institute at Saliyapura,Anuradhapura as the Head of the Institution whereas the 2nd and3rd petitioners were the Acting President of the Wayamba NationalCollege of Education Bingiriya and National College of Education,Adalachchenai, respectively.10
The petitioners claim that their fundamental rights guaranteedin terms of Article 12(1) of the Constitution were violated by the 1stto the 10th respondents by their decision, allowing some officerswho were similarly circumstanced to be promoted to Class I of theSLTES and by cancelling the promotions given to the petitioners.They prayed for an order from this Court directing the 1st to 10threspondents to reinstate the petitioners in Class I of the SLTES witheffect from 15.05.2002.
This Court granted leave to proceed for the alleged
infringement of Article 12(1) of the Constitution.
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The case for the petitioners’ is as follows:
By a circular dated 17.09.2001, issued by the 1st respondent,addressed to all Heads and/or Presidents of Institutions engaged inTeacher Education under the Ministry of Human ResourceDevelopment, Education and Cultural Affairs, applications wereinvited from suitably qualified persons in Class II Grade I forconsideration for promotion to Class I of the SLTES (P1).
The three petitioners had applied for the said promotion andthey were interviewed on 18.02.2002 (P2). According to thepetitioners, about 30 officers of Class II Grade I had faced the 30interviews out of which six persons (6) were selected for promotionsto Class I, which included the three petitioners.
By letters of appointment dated 05.05.2002, issued by the 1strespondent, the petitioners were promoted to Class I of the SLTESwith effect from 15.05.2002. (1P1, 2P1 and 3P1). On or about22.10.2002, the petitioners had received letters from the 1strespondent, informing the petitioners that their promotions to ClassI of the SLTES have been cancelled with immediate effect as theEducation Service Committee has observed that the saidpromotions have been effected in violation of the Constitution of the 40SLTES (1P2, 2P2 and 3P2).
The petitioners submitted that although their promotions werecancelled, nine officers who were similarly circumstanced on thebasis of their qualifications and service in Class II Grade I werepromoted to Class I with effect from 15.11.1999 by the predecessorto the 1st respondent and the said promotions were not cancelled(P7). The petitioners further submitted that although the officerswho were similarly circumstanced were promoted in 1999, suchpromotions were backdated without any cancellation whereas withsuch backdating the 2nd petitioner’s promotion was subsequently 50cancelled. The 1st and the 3rd petitioner were never given any suchbackdating.
The petitioners claimed that by the cancellation of theirpromotions to Class I when there were similarly circumstancedofficers whose promotions were not annulled, the petitioners weresubjected to arbitrary, capricious and discriminatory treatment bythelst to 10 respondents.
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The respondents have clearly stated their position in theaffidavit of the 2nd respondent, viz., the Chairman of the PublicService Commission. Their contention is that there is a mandatoryrequirement in terms of the Minutes of the SLTES Service and theGazette Extraordinary No. 1070/13 dated 11.03.1999 (P3), that anapplicant for promotion to Class I of the SLTES should have aminimum of five years satisfactory service in Class II Grade I of theSLTES. Accordingly the 2nd respondent has taken the position thatthe petitioners were promoted to Class II Grade I of the SLTES witheffect from 01.09.2000 and their applications for promotions weremade only in September 2001 which is just after one year of servicein Class II Grade I of the SLTES.
With regard to the alleged discriminatory treatment, the 2ndrespondent submitted that in 1999, the nine applicants who werepromoted had applied for Class I whereas the petitioners at thattime had applied for Class II Grade I. Therefore, the 2nd respondentcontended that the petitioners and the nine others had not appliedfor the same promotion and hence the marks obtained by individualapplicants or the comparison with the nine others referred to by thepetitioners is irrelevant and unwarranted. The said nine applicantsapplied and promoted to Class I in 1999, whereas the petitionershad applied for Class 1 promotions only in 2001. The 2ndrespondent therefore submitted that there cannot be anycomparison between the nine others and the petitioners as they donot come within the same class.
It is common ground that the petitioners applied for promotionto Class I of the SLTES in terms of the advertisement dated17.09.2001. According to the said advertisement a person had topossess the following, to be eligible for such promotion:
five years satisfactory service in Class II Grade I; and
be confirmed in Class II Grade I.
The petitioners were promoted to Class II Grade I by letterdated 15.08.2001, with effect from 01.09.2000 (2R1,2R2 and 2R3).Applications for the promotion to Class I were called on 17.09.2001and admittedly by that time, the petitioners had just completed onlyone year in Class II Grade 1. The petitioners were confirmed byletter dated 22.04.2002 (1P7) and the closing date for the said
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promotions was on 12.10.2001. According to the letter ofconfirmation it was to be effective from 0.1.01.1995. This letter washowever cancelled by letter dated 30.10.2002 and the confirmationin the post of Class II Grade I was to be with effect from 01.09.2000(1P5 and 1P6). Accordingly at the time of the closure of theapplications for the said positions the petitioners did not have five 100years satisfactory service in Class II Grade I. Moreover, they werenot even confirmed in that Grade as the letters of confirmation,though backdated with effect from 01.09.2000 were sent only in2002. Therefore the petitioners at the time they made theirapplications, were not qualified even to be considered forpromotion to Class I of the SLTES.
The petitioners contended that when applications were calledfor the promotions to Class I, what was stated was that it should befrom officers with satisfactory service of not less than five years ina post ‘scheduled under Class II Grade I of the service’. The nocontention was that as the word used was ‘scheduled’ and not theword ‘under’ alone, what it conveyed was that the persons whohave been acting in such positions for the said period and laterconfirmed in such posts were also eligible to apply for promotion toClass I. The petitioners contended that they were confirmed officersin Class II Grade I.
Although the petitioners were confirmed in Class II Grade Ithey were so confirmed only on 01.09.2000. It is common groundthat the applications were called and interviews were held inFebruary 2002. The basic requirements for the promotions to Class 120I included the applicants to have five years satisfactory servicein Class II Grade I. The petitioners have not shown that they havefulfilled this basic requirement and one cannot see as to how theycould be qualified for promotions without the basic qualifications.
The petitioners referred to promotions to Class I in 1999 wherenine officers were promoted from Class 2 Grade 1 to Class of theSLTES. Their position was that, at that time those nine officers didnot have five years even in an acting capacity in Class II Grade I.Therefore the petitioners’ claim was that they have been treateddifferently when those persons were promoted to Class I without 130considering the basic qualifications. However, it is to be noted thatthe petitioners, to begin with have not made those nine persons
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respondents to this application. Therefore the petitioners cannotnow challenge their appointments. Furthermore the petitioners andthose nine promotees were not considered for promotions to ClassI of the SUES at the same time, as those promotees had appliedand promoted in 1999 whereas the petitioners had applied for ClassI promotions only in 2001.
Be that as it may, it is now well settled law that everydifferentiation is not a discrimination and classification which could uobe identified as ‘good and valid’ cannot be treated as arbitrary. Aspointed out by Jain Kagzi, (The Constitution of India, Vol. II pg. 210)for a classification it would be necessary to satisfy two basicconsiderations which are as follows:
that the classification must be founded on an intelligibledifferentia which distinguish persons that are grouped infrom others who are left out of the group, and
that the differentia must bear a reasonable, or a rationalrelation to the objects and effects sought to be achieved.
The basic norm therefore is that unequal cannot be treated as isoequals as well as equals cannot be treated as unequals. Equalopportunity therefore is for equals who are similarly circumstancedin life.
The petitioners’ reference to promotions to Class I in 1999, toindicate unequal treatment cannot therefore be taken into accountto show that the denial of promotions to petitioners to Class I in2001 is discriminatory for several reasons. Firstly, the first set ofpromotions were in 1999 and the promotions in question weremade in 2001. Therefore these promotions belong to two differentgroups and cannot be considered as promotions that were given on 160a comparative basis. Secondly, according to the documents dated09.07.1999 (1P9) and 27.09.1995 (2P7), the backdating ofappointments given to petitioners were on the basis of Cabinetdecisions. Thirdly, as submitted by the learned State Counsel forthe respondents quite correctly, the promotions which were given in1999, the Cabinet of Ministers had acted in terms of Article 55(1) ofthe Constitution which empowered them to take decisions regardingappointments. Since the enactment of the 17th Amendment to theConstitution, the Public Service Commission is empowered to make
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appointments. The cumulative effect of these provisions is that, the 170Public Service Commission now has to function in terms of theMinutes of the SUES which are applicable for the relevantpromotions. Therefore there is no possibility for the Public ServiceCommission to act contrary to the said Minutes of the SUES withregard to the promotions to Class I.
It is not disputed that the petitioners neither had five yearsservice in Class II Grade I of the SUES nor confirmed in that Gradeat the time of their applications for promotion to Class I of theSUES. Therefore, in a situation where the petitioners have notfulfilled the requirements to be promoted to Class I, it would be isocontrary to law if the Public Service Commission takes steps inorder to promote them. In fact the decision in C. W. Mackie and Co.
Ltd. v Hugh Molagoda, Commissioner-General of Inland Revenueand others (1) had considered the legal point in issue and it washeld that Article 12 of the Constitution guarantees equal protectionof the law and not equal violation of the law. Stating that, for thecomplainant of unequal treatment to succeed he must demonstrateunequal treatment in the performance of a lawful act, Sharvananda,
C.J., was of the view that,
“But the equal treatment guaranteed by Article 12, is 190equal treatment in the performance of a lawful act. ViaArticle 12, one cannot seek the execution of an illegal act.Fundamental to this postulate of equal treatment is that itshould be referable to the exercise of a valid right,founded in law in contradistinction to an illegal right whichis valid in law.”
A similar view was taken in Gamaethige v Siriwardene andothers<2> and in Jayasekera v Wipulasekera (3>.
In Gamaethige’s case the petitioner was the General Secretaryof the Sri Lanka Government Clerical Union and was released for 200full time Trade Union work. In view of petitioner’s participation in astrike from 17.07.1980 to 12.08.1980, he was treated as havingvacated his employment, but later on appeal he was reinstated.Earlier in 1973 the petitioner’s name had been registered in thewaiting list for Government Quarters. In June 1984 prior to thepetitioner’s reinstatement in service, the petitioner’s eligibility forquarters was re-examined, and upon it being reported that he was
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not in service, his name was deleted from the waiting list forGovernment Quarters. He alleged discrimination stating thatpreferential treatment was accorded to the respondent and fourothers who were not in the waiting list and another employed oncontract after retirement who had been given GovernmentQuarters though their names were not in the waiting list. Referringto the complaint made by the petitioner and considering whetherthere was any infringement of Article 12 (1) of the Constitution,Fernando, J. observed that,
“Here the petitioner’s allegation that these persons werenot in the waiting list and/or were not eligible for GeneralService Quarters amounts to an allegation that quarterswere allocated in breach of the relevant rules. Twowrongs do not make a right, and on proof of thecommission of one wrong the equal protection of the lawcannot be invoked to obtain relief in the form of an ordercompelling commission of a second wrong.”
An identical view was taken in Jayasekera’s case (supra)where G.P.S. de Silva, J. (as he then was) citing T.V. Setty vCommissioner, Corporation of the City of Bangalore (4> stated that,the authorities cannot act illegally in one case because they haveacted illegally in other cases.
A similar approach was taken by the Indian Courts in theapplicability of Article 14 of the Indian Constitution which is thecorresponding Article to Article 12 of our Constitution. In RamPrasad v Union of Indian it was stated that,
“the guarantee under Article 14 cannot be understood asrequiring the authorities to act, illegally in one casebecause they have acted illegally in other cases. No onecan contest that a wrong must be extended to him as wellin order to satisfy the provisions of Article 14."
In Chief Commissioner v Kitty Puri (6) it was clearly stated that,
“But the respondent No. 1 cannot contend that becausethe society and the government have illegally shownfavour to some persons, then this Court must compelthem to commit another illegality to show favour torespondent No. 1 in the same way. This is not the
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meaning of equality guaranteed by Article 14 of theConstitution.”
On a consideration of the aforementioned material placedbefore this Court it is evident that, although there may have beenpromotions made consequent to backdating of appointments toClass II Grade I, the petitioners cannot now rely on such 250appointments and seek to be promoted to Grade I on that basis, asan authority cannot be compelled to act illegally in a case for themere reason that it has acted illegally in previous cases.
A government authority will have to deal with all persons, mayit be an appointment, promotion, transfer or a dismissal, inconformity with the standard norms which are not arbitrary,irrational, capricious or unreasonable. Equal treatment does notmean that one could act illegally to avoid discrimination.
For the reasons aforesaid, I hold that the petitioners have notbeen successful in establishing that their fundamental rights 260guaranteed in terms of Article 12(1) were violated by therespondents. This application is accordingly dismissed. In all thecircumstances of this case there will be no costs.
JAYASINGHE, J. -I agree.
UDALAGAMA, J. -I agree.
Application dismissed.