sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriva, J)
23
SIRIMAL AND OTHERS
v
BOARD OF DIRECTORS OF THE CO-OPERATIVEWHOLESALE ESTABLISHMENT AND OTHERS
SUPREME COURT
S.N.SILVA, CJ.
ISMAIL, J. ANDWEERASURIYA, J.
SC (FR) NO. 445/2002
18TH FEBRUARY, 14TH MARCH
2ND APRIL, 21 ST MAY, AND 10TH AND 30TH JUNE, 2003
Fundamental Rights – Extension of services beyond 55 years – Retirement at55-Previous condition for allowing extensions up to 60 years – Legitimateexpectation – Lack of notice of change of policy and opportunity of making rep-resentations – Whether alternative remedy precludes the remedy of seekingrelief for violation of fundamental rights – Constitution, Articles 12(1) and126(1).
The petitioners complained that the 1st respondent (‘The CWE”) did in viola-tion of their rights under Article 12(1) of the Constitution stopped extension oftheir services beyond 55 years and purported to retire them from 31.7.2002,by circular dated 21.6.2002(P6). The previous circular dated 14.11.1995(P5)provided for granting of annual extension from 55 until 60 as in the case of thepublic sector under Chapter V section 5 of the Establishments Code. The rea-sons given for the new policy decision were:
Redundant labour force
Heavy losses; and
Reorganization of the CWE to make it a profit making organization
The applications of all petitioners except Nos. 19 and 20 were recommendedby the Service Extension Committee; and no application was sent to theMinistry for decision. The previous practice was to grant annual extension upto 60 years except where medical or disciplinary grounds existed.
Held :
The optional age of retirement in the CWE had been 55 years of agewith a right to seek extension up to 60 years of age as in the public sec-tor. The impugned circular seeks to make retirement compulsory at 55years.
24
Sri Lanka Law Reports
[2003] 2 Sri L.R
The petitioner had a legitimate expectation of receiving extension up to60 years except where medical or disciplinary grounds were present.
Where it is sought to change conditions of service denying the right ofextension, the employees should be given a reasonable time and anopportunity of showing cause against change. The court may decidewhether the change of conditions of service on policy was lawful.Where the decision is perverse or irrational, the court will intervene.
The failure by the CWE to send up to the Ministry the petitioners’ appli-cations, the refusal to duly entertain the applications and the compul-sory retirement of petitioners affected their livelihood.
There was no evidence or analytical reports to rationally establish thegrounds urged for premature retirement. On the contrary there was evi-dence of retirement of additional employees, including a MarketManager, of a person over 55 years at a monthly salary Rs.80,000/-.
The decision of the CWE to change the age of retirement is not war-ranted upon consideration of public interest or principles of fairness.
The petitioners are entitled to seek relief for violation of fundamentalrights within the exclusive jurisdiction of the Court under Article 126(1)of the Constitution, even if there were other available reliefs e.g., thoseunder the Industrial Disputes Act.
Cases referred to :
R. v Secretary of State for the Home Department exp. Khan (1985) 1ALL E R 40
Council of Civil Service Unions v Minister for the Civil Service (1984)3ALL E R 935
R v Minister of Agriculture, Fisheries and Food exp. Hamble (Offshore)Fisheries Ltd (1995) 2 ALL E R 714, 731
R v Secretary of State for the Home Department exp. Hargreaves(1997) 1 ALLE R 397
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation(1947) ALLE R 680
APPLICATION for relief for infringement of fundamental rights.
Chamantha Weerakoon Unamboowa with Ayanthi Abeywickrama and
M. Kurera for petitioners.
Romesh de Silva, RC. with Palitha Kumarasinghe for 1st to 3rd respondents
Cur.adv.vult
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriya, J)
25
August 08, 2003WEERASURIYA, J.
The petitioners who are employees of Co-operative 1Wholesale Establishment (“C.W.E.”) complain that the decision ofthe Board of Directors of C.W.E. (“1st respondent board”) not togrant extension of service and to retire them with effect from31.07.2002 is mala fide, arbitrary and discriminatory and violatestheir fundamental rights guaranteed under Article 12(1) of theConstitution.
The petitioners claim relief on the following basis : that theemployees of C.W.E. are governed by provisions of theEstablishments Code and optional age of retirement is 55 years; 10that Circular No.1-1/07©.ed dated 14.11.1995 (P5) laid down thatgenerally requests for extension of service beyond 55 years will begranted except on medical or disciplinary grounds; that the practicehas been to grant extension of service for one year at a time uptothe age of 60 years unless they are medically unfit or refused on■ disciplinary grounds; that the petitioners possess a good servicerecord and are medically fit and therefore they had a legitimateexpectation of continuity of employment upto the age of 60 years.
The 1st respondent Board contends that terms and condi-tions of employment of the petitioners do not entitle them to be 20employed after 55 years of age; that employees of C.W.E. are notgoverned by provisions of the Establishments Code, though its pro-visions are made use of as a guide in dealing with disciplinary mat-ters; that C.W.E. is overstaffed and heavily in debt to the Banksamounting to Rs.5000/= Million with an accumulated loss ofRs.4000/= Million and presently running at a loss without any fund-ing from the Treasury; and that the decision not to grant extensionsof service to the petitioners was a policy decision taken after muchconsideration of the above matters in the best interest of C.W.E.which is reasonable and apply to all without discrimination.30
Age of Retirement
It is common ground that prior to the Circular No.27/2002dated 21.06.2002 (P6) Circular in operation was Circular No. 1-1/07 ©.ed-dated 14.11.1995 (P5). This Circular as is evident from
26
Sri Lanka Law Reports
[2003] 2 Sri L.R
the caption deals with policy of the Ministry regarding requests forextension of service of employees serving in institutions under itspurview. It would be significant to note that this Circular isaddressed to all Heads of Departments/lnstitutions and referenceis invited to Circular dated 29.09.1995 of even number in respect ofprocedure in making recommendations for extensions of service. Itthereafter draws attention to Chapter V section 5 of theEstablishments Code which deals with extension of service ofemployees who are over 55 years.
The letters of appointment of the petitioners have been pro-duced marked 1 R3(A) – 1 R3(S). These letters of appointment con-tain terms and conditions of employment of the petitioners.However, it is noteworthy that these letters of appointment do notcontain any provision in respect of the age of retirement of employ-ees. Therefore, to ascertain the age of retirement, it is necessary toexamine the Circulars and Regulations formulated by the Ministry.Even the Circular bearing No. 1-1/07/o.ed- dated 14.11.1995 (P5)does not stipulate the age of retirement. This Circular while makingprovision for employees to seek extension of service beyond 55years of age merely draws attention to Chapter V section 5 of theEstablishments Code. It is to be highlighted that the 1st respondentBoard has conceded that in dealing with disciplinary matters,C.W.E. has recourse to provisions of the Establishments Code forguidance. Thus the 1st respondent concedes the part application ofprovisions of the Establishments Code in respect of its employees.The 1st respondent Board having denied the applicability of theprovisions of the Establishments Code in respect of its employeesclaimed that the age of retirement of employees is 55 years.However, it failed to produce a single Circular or any Regulation for-mulated by the Ministry or, a decision of the 1st respondent Boardwhich governs the age of retirement of its employees. In the cir-cumstances, I hold that optional age of retirement of employees ofC.W.E. has been 55 years of age with a right to seek extensionsupto 60 years of age which accords with section 5 of Chapter V ofthe Establishments Code applicable to all employees of the publicsector. It is to be noted that the impugned Circular seeks to makeretirement compulsory at 55 years.
40
50
60
70
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriya, J)
27
Genesis of Legitimate Expectation
The claim of the petitioners that they had a legitimate expec-tation of continuity of employment upto 60 years was founded onthree grounds.
The Circular bearing No.1-1/07 Q.eg. dated
(P5) states clearly that :
“Generally a request for an extension of service is grantedexcept on disciplinary and medical grounds”. This Circular sets outa uniform procedure for employees who are over 55 years of age soto seek extension of service. It is significant that this Circular whileinviting reference to the Circular of even number dated 25.09.1995,draws attention of all Heads of Departments/lnstitutions under theMinistry to section V of Chapter 5 of the Establishments Codewhich deals with the extension of service of employees over 55years of age in the public sector. Section 5:2 of Chapter V of theEstablishments Code states that no officer should be continued inservice after he reaches the age of 55 years except as provided forin Sections 5:3 and 5:4. Thus optional age of retirement in the pub-lic sector is 55 years with a discretion to extend the services upto 90the age of 60 years.
Excepting 19th and 20th petitioners who weregranted extensions earlier, the other petitioners consequent upontheir applications for extension, received letters marked P2(A) -P2(M), informing them that their applications for extension hadbeen recommended by the Service Extension Committee and thatthey are permitted to continue in employment pending approval bythe Ministry of Commerce and Consumer Affairs which was takenas a mere formality in the previous years.
The previous practice of C.W.E. has been to grant 100extensions of service to its employees beyond 55 years to contin-ue in service upto the age of 60 years except on disciplinary ormedical grounds. It is necessary to state that Circular No.1-1/07/
O.ed- (P5) confirms the existence of this practice and merely stipu-lates the procedure that is to be followed.
The 1st respondent Board has conceded that in the past, theMinister has granted extensions of service to employees beyond 55years of age.
28
Sri Lanka Law Reports
(2003) 2 Sri L.R
Legitimate expectations can arise in situations where a pub-lic body has set out criteria for application of policy in a certain area noand where an applicant has relied on this criteria and the publicbody seeks to apply a different criteria. (R v. Secretary of State forthe Home Department exp. KhanW)
A previous pattern of conduct too can give rise to a legitimateexpectation (Council of Civil Service Unions v. Minister for the CivilService<2>)
Substantive Legitimate Expectation
The frontiers of legitimate expectation in Administative Lawhave been greatly expanded in recent years to admit of a substan-tive content. Therefore, the expectation that the law may be called 120upon to protect can be divided broadly into two groups: proceduralexpectations, where procedural justice of one form or another isexpected and substantive expectations where a favourable deci-sion of one kind or another is expected. The distinction betweenprocedure and substance is of considerable practical significance.
This would be evident by an examination of the facts of the instantcase. The expectations of the petitioners to continue in employmentupto the age of 60 years were frustrated by a decision of the 1strespondent Board which was described as a policy decision. If thelegitimate expectations are protected only procedurally, the most 130employees could hope for, would be an order requiring consultationbefore a change of policy is effected. If however, the legitimateexpectations are substantive the position is different, in that it isopen to a Court to require the public authority to confer upon theperson the substantive benefit which he is expected to receiveunder the earlier policy.
This doctrine seems to be somewhat controversial since itappears to fetter the freedom of action of the public authority.However, it is equally necessary to give relief to people who havebeen betrayed by officials after making solemn assurances on 140which they have placed their trust. There is no inherent conflictbetween legitimate expectation and the rule against fettering dis-cretion because the discretion is only fettered to the extent that thepublic interest does not require otherwise.
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriya, J)
29
Protection of Legitimate Expectation
There is no controversy that substantive expectations maybe procedurally protected and that procedural protection of sub-stantive expectations provides some protection to the trust that isplaced to the authority’s assurance while not fettering its discretion.
In R. v. Ministry of Agriculture, Fisheries and Food exp.Hamble (Offshore) Fisheries Ltd.W Sedley J. developed a particu-lar approach to the protection of substantive expectations. Hestates legitimacy of expectations “… is a function of expectationsinduced by government and of policy considerations which militateagainst their fulfilment. The balance must, in the first instance, befor the policy maker to strike; but if the outcome is challenged byway of judicial review, I do not consider that the Court’s criterion isthe bare rationality of the policy maker’s conclusion. While policy isfor the policy'maker alone, the fairness of his or her decision not toaccommodate reasonable expectations which the policy will thwartremains the Court’s concern (as of course the lawfulness of thepolicy)”.
However, this approach was overruled and described as‘heresy’ by Hirst L.J. in R. v. Secretary of State for the HomeDepartment exp. Hargreavestf4). The reason for the Court ofAppeal’s antipathy was that this amounts to an intrusion into thesubstance of the decision and it was wrong in principle for the Courtto involve itself in such matters given that the Minister was respon-sible to Parliament. He said at page 412 “on matters of substance(as contrasted with procedure) Wednesbury provides the correcttest”. Therefore when there is a substantive legitimate expectationin need of protection, it is for the decision maker and not the Courtto judge whether that expectation should be protected or whetherbroader public interest is so strong as to override the expectation.The Court would only intervene if the decision maker’s judgmentwas perverse or irrational. Thus the present position is that the sub-stantive protection of legitimate expectation has to be sought on themore traditional approaches of the English Law namely (a) proce-dural protection and (b) protection in terms of ‘Wednesbury’ unrea-sonableness.
150
160
170
180
30
Sri Lanka Law Reports
[2003] 2 Sri L.R
Procedural Legitimate Expectation
Let us now examine whether there has been procedural pro-priety before the decision was taken not to grant extension of ser-vice to the petitioners. It would appear that all the petitioners hadsubmitted their applications for extension of service within the stip-ulated time period. The petitioners had a good service record andthey were of sound health. Despite the recommendations ofService Extensions Committee these applications were not submit-ted to the Ministry for approval. The explanation was that since theissue of non-granting of extension was under consideration by the 190Ministry, C.W.E. did not forward the applications for extension ofservice of the petitioners to the Ministry. Thereafter by CircularNo.27/2002 dated 21,06.2002(P6) the Acting General Managercommunicated the decision of the 1st respondent Board not togrant extension of service to employees over 55 years of age andto retire them with effect from 31.07.2002. This undoubtedly affect-ed the livelihood of the employees of C.W.E. who have reached 55years of age.
It is necessary to emphasise that published policy criteria inrespect of extension of service as found in Circular No.1-01/07 200O.od. dated 14/11/95 (P5) was in accordance with the provisions ofthe Establishments Code and the practice adopted by C.W.E., wasto grant extensions upto 60 years except on medical and discipli-nary grounds. If there is any departure from such policy it is imper-ative that those who are likely to be affected by the change oughtto be given sufficient notice. The substantive legitimate expectationof the ultimate benefit is protected by a right to a hearing and a rightto make representation prior to changes being effected. This rightwas recognized by House of Lords in Council of Civil ServiceUnions v. Minister for the Civil Service (supra at page 954). Lord 210Roskill laid down this principle in the following terms: “The principle(of legitimate expectation) may now said to be firmly entrenched inthis branch of the law. As the cases show, the principle is closelyconnected with ‘a right to be heard’. Such an expectation may takemany forms. One may be an expectation of a prior consultation.Another may be an expectation of being allowed time to make rep-resentations, especially where the aggrieved party is seeking topersuade an authority to depart from a lawfully established policy
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriya, J)
31
adopted in connection with the exercise of a particular powerbecause of some suggested exceptional reasons justifying such adeparture”.
Craig in his article entitled “Legitimate Expectation: AConceptual Analysis” (The Law Quarterly Review Vol.108 -1992 79at pages 85 and 86) identifies procedural rights as both instrumen-tal and non-instrumental in nature. He observes “One of the princi-pal justifications for the existence of procedural rights is instrumen-tal in nature. This rationale emphasises the connection betweenprocedural due process and the substantive justice of the final out-come; the procedural rights perform an instrumental role in
the sense of rendering it more likely that there will be an accurate
decision on the substance of the caseOther justifications
for procedural rights are non-instrumental in nature. They focus onformal justice and the rule of law, in the sense that rules of naturaljustice help to ensure objectivity and impartiality and facilitate thetreating of like case alike. Procedural rights are also seen as pro-tecting human dignity by ensuring that the individual is told why heis being treated unfavourably and by enabling him to take part inthat decision.”
There was no material to suggest that before the 1st respon-dent Board took the decision for non-granting of extension of ser-vice to employees beyond 55 years of age, that consultation of anyform or degree ever took place between the management and theemployees or their trade unions. It would appear that the 1strespondent Board has deviated from the national policy which isreflected in section 5 of Chapter V of the Establishments Code. Itneed hardly be emphasised that procedural fairness will protect theintegrity of the decision which is in issue.
Grounds for Change of Policy
Even if the expectation is reasonable and legitimate theremay be good reasons for the public body to act in terms of policyconsiderations which may frustrate legitimate expectations.
The purported policy decision of the 1st respondent Boardwhich tends to defeat legitimate expectations of the petitioners,was justified on the following basis.
220
230
240
250
32
Sri Lanka Law Reports
[2003j 2 Sri L.R
Redundant labour force
Heavy losses
Need to reorganize and revitalize to make C.W.E. aprofit making organization.
The grounds enumerated above have to be assessed in thelight of the principle of unreasonableness expounded in the judg- 260ment of Lord Grean, M.R. in Associated Provincial Picture HousesLtd. v. Wednesbury Corporation,(5> Two meanings have emerged ofthe term ‘unreasonable’ from this judgment. These relate to devia-tion from purpose and deviation from fundamental principles.Unreasonableness in the first sense is used as a synonym for ahost of more specific grounds of attack such as taking into accountof irrelevant considerations, acting for improper purposes and act-ing mala fide. The second meaning is the substantive sense whichwould include a decision so unreasonable that no reasonable bodycould have made it. (Administrative Law P.P. Craig – 4th Edision 2701999 Edition page 537). The application of the above criteria caninvolve the danger that the Court may indirectly substitute its judg-ment on the merits for that of the public body. This however is ageneral problem that the review of administrative decisions wouldentail.
(1) Excess Staff
The issue of an excess labour force has not been discussedat the Board meeting held on 05.06.2002. The 1st respondentBoard acting on a directive by the Minister of Commerce andConsumer Affairs, which was described as a “policy decision” has 280decided not to grant extensions of service to employees beyond 55years and to retire them with effect from 31.07.2002. This is evidentby an examination of the contents of the Board decision producedmarked 1R1. It reads as follows:
As per policy decision of the Hon. Minister ofCommerce and Consumer Affairs' there will be no extensions ofservice after 55 years of age for officers/employees.
These officers/employees serving on extensions ofservice will be given one month’s notice to be treated as retired as
^9Q n
effective from 31st July 2002.
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriva. J)
33
These officers/employees who have requested forservice extensions and continue to be in service without approvalwill be considered to be in service till the retirement date of 31stJuly 2002.
This view is further reinforced by an examination of theCircular No.27/2002 dated 21/06/2002 (P5) which incorporatedthe Board decision referred to above. The first two paragraphs ofthis Circular contain reasons for the 1st respondent Board to takethe decision not to grant extensions. Two reasons enumerated inthe Circular are:
Due to the accumulation of losses for severalyears, loss for the year ending on 31.12.2001 was Rs.4000/=Million and by May 2002 Bank overdraft stood at Rs.5000/=Million.
Since the overall economy is facing a severe cri-sis seeking financial assistance from the General Treasury with aview to generate new sources of revenue is difficult.
It is not possible to draw the inference that losses had beencaused due to the excess labour force.310
It is manifest that the issue of redundancy of the labourforce, has come into focus only when objections were filed by the1st respondent.
Several other matters are relevant in assessing good faithof the 1 st respondent Board on this issue in the context of a denialof the existence of an excess labour force by the petitioners.
The 1st respondent Board has failed to place any materialby way of a Board paper, or a report by the Human ResourcesManager to establish that there is an excess of staff. It is commonknowledge that excess staff has to be identified after considera- 320tion of cadre requirements and structural organization of all thedepartments of C.W.E. The Ministry by its earlier Circular (P5)has addressed the issue of a possible excess of staff by stipulat-ing that if the institutions are overstaffed new recruitments couldbe delayed for a certain period.
34
Sri Lanka Law Reports
[2003} 2 Sri L.R
(2) Heavy Losses and (3) Reorganization
1st respondent Board claims that reduction of staff by dis-continuance of casual employees and the retirement of over 55employees by denying their extensions has saved C.W.E. Rs.6.5Million a month.
There was no evidence of any rational assessment as to theoverhead cost reduction of C.W.E. arising from this exercise. Whatwe have is the bare statement by the 1st respondent Board of thesaving which is denied by the petitioners.
The recruitment drive of the 1st respondent Board assumesmuch significance in view of its claim of reduction of overheadcosts.
The 1st respondent Board claims that in order to avoid alle-gations of discrimination and unequal treatment C.W.E. decided todiscontinue all casual employees across the board without excep- 340tion, despite the need to retain services of some. In similar circum-stances, the non-extension of over 55 employees has taken place,despite the need to retain the services of some.
As was stated in a preceding paragraph there was no inti-mation of an official figure in respect of excess employees emanat-ing from a systematic study of the structural organization and cadrerequirements of C.W.E. In the absence of such data based onagreed principles it would appear that fresh recruitments would beon a haphazard and irrational manner without any attempt to cor-relate to the actual needs of the organization. This is evident by the 350fact that the management has recruited 38 employees (VideP13(D) – P13(H), P13(K) – P13(Z), P13(Z1), P11, P8(A) – P8(J),P8(L) – P8(0) before the date of discontinuance of the casualemployees namely on 18.03.2002.
It was never the position of the 1st respondent Board that inanticipation of the discontinuance of casual employees it recruitednew employees with the intent of filling vacancies that would becreated in the future. It has to be borne in mind that retirement ofover 55 employees came into effect from 31.07.2002. Therefore, itis not correct to say that C.W.E. recruited some employees on a 360casual basis to fill the vacancies created after the discontinuance
330
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriya, J)
35
of casual employees and retirement of over 55 employees.
The petitioners disputed the purpose of discontinuance ofcasual employees and the recruitment drive for new casualemployees on the ground that discontinuance was effected to getrid of employees appointed by the previous government to pave theway for the management, to recruit supporters of the present gov-ernment.
The theme of cost reduction in respect of recurring overheadexpenses is open to doubt in the absence of any official figure relat- 370ing to discontinuance of both casual and over 55 employees. It hasbeen established that 64 employees (inclusive of 16 for theInvestigation Unit of the Ministry and 3 for the Sathosa ManagementService Ltd.) had been recruited before the Circular No. 15 dated23.05.2002 (P10) of Secretary to the Treasury came into effect. Thecase of Super Market Manager for Welisara Super Market recruitedon a monthly salary of Rs.80,000/= and the likelihood of several •more similar appointments in the near future in terms of advertise-ment marked P12, is a pointer in the direction of enhanced over-head expenses, defeating objectives of the new policy.380
The petitioners have placed material to establish thatSathosa Management Services, is a subsidiary funded by theC.W.E. by documents P15, P16(a), P16(b) and P17(a) – P17(h).
The 1 st respondent Board has not denied that salaries of the 16officers attached to the Investigation Unit of the Ministry ofCommerce and Consumer Affairs are paid by C.W.E. (Vide P18(A)
– P18(F). The 1st respondent Board has described the InvestigationUnit as having duties to perform embracing all institutions under thepurview of the Ministry of Commerce and Consumer Affairs.
It has been established that 4 employees of the Investigation 390Unit and 2 officers from the Sathosa Management Services Ltd.,one being newly appointed Super Market Manager for WelisaraSuper Market, are over 55 years of age. This is a glaring exampleof differential treatment which would strengthen the case of thepetitioners in establishing both unreasonableness and discrimina-tory treatment meted out to the petitioners.
Secretary to the Treasury by his Circular No.15 dated23.05.2002{P10) outlining government policy directed Secretaries
36
Sri Lanka Law Reports
(2003] 2 Sri L.R
of all Ministries, Heads of Departments and Chairmen ofCorporations, Statutory Boards and Government Owned Business 400Undertakings to suspend forthwith until further notice all newrecruitments on any basis. The 1st respondent Board disregardingthe content of this Circular has recruited nine employees as evidentfrom documents marked P9(A), P9(B), P9(C), P14(A), P14(B) andP14(C).
In this Circular (P10) Secretary to the Treasury has madeseveral proposals to meet a situation of excess staff. He has pro-posed that a work study be undertaken to identify excess cadre andto redistribute the work among the existing workforce to ensuresmooth functioning of the organization. The 1st respondent Board 410has proceeded to act disregarding these proposals, which com-mend itself for consideration in addressing problems associatedwith excess staff.
In view of the foregoing material, the decision of the 1strespondent Board to effect a change of policy in respect of exten-sion of service of over 55 employees is not warranted either uponconsiderations of public interest or upon known principles of fair-ness.
Nevertheless, the change of policy will affect future recruit-ments having regard to the fact that the public body is free to for- 420mulate and reformulate policy. The duty of the Court is to safeguardrights, as well as interests deserving protection based on legitimateexpectations.
Other Remedies
The 1 st respondent Board had taken up the position that thepetitioners have other remedies to pursue, to seek relief and there-fore they ought not to be granted relief in terms of Article 12(1) ofthe Constitution.
It is not disputed that petitioners could seek relief either –
by way of an application to the Labour Tribunal or by 430
Arbitration in terms of Section 26 of C.W.E. Act.
Nevertheless, they have chosen to seek relief for infringmentof their fundamental rights in terms of Article 12(1) of the
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriva. J)
37
Constitution. Article 126(2) of the Constitution vests the sole andexclusive jurisdiction in the Supreme Court to have and determineany question relating to infringement or imminent infringement of anyfundamental right guaranteed by the Constitution. It is to be high-lighted that the constitutional provisions being the higher norm, willprevail over other statutory provisions and therefore petitioners areentitled to seek relief for alleged infringement of their fundamental 440right even in situations where there are other remedies to pursue.
The petitioners were given interim relief in terms of prayer (b)of their petition by restraining the 1st respondent Board from retir-ing them until the final determination of this application. The peti-tioners have failed to submit their applications for extension of ser-vice while the proceedings of this case were pending. It is to beobserved that petitioners are required to make their applications forextension, 3 months before the expiry of the earlier extension. Inthe circumstances, it is not possible to claim a further extension of 450service. Therefore, upon a consideration of totality of the circum-stances, it is just and equitable to grant the petitioners compensa-tion for violation of their fundamental rights.
For purposes of convenience, I propose to classify the peti-tioners into five categories in terms of their age for granting relief.
Description of
the PetitionerAge
Relief
01
55
05 ]07]09]
15]
16]17]
18]
56
460
38
Sri Lanka Law Reports
(2003} 2 Sri L.R
03]
04]
06 ]
08]
10]
11 ]
13]
14]
21 ]
02]58
12]
19]
20 ]59
57
470
19th and 20th petitioners are due to retire on reaching 60years on 16.01.2004 and 15.09.2003 respectively. In the circum- 480stances, I order the 1st respondent Board to pay compensation tothe petitioners in the following manner.
1st petitioner-Rs.375,000/=
05th, 07th, 09th, 15th, 16th &17th & 18th petitioners
3rd, 04th, 6th, 08th, 10th, 11th,13th, 14th & 21st petitioners
02nd & 12th petitioners
19th & 20th petitioners
Rs.325,000/= each
Rs.275,000/= eachRs.225,000/= eachRs.30,000/= each
I order 1st respondent Board to pay the petitioners Rs.5000/= 490each as costs of this application.
sc
Sirimal and Others v Board of Directors of the Co-operative
Wholesale Establishment and Others (Weerasuriva. J)
39
These payments shall be made by the 1st respondent Board• to the petitioners on or before 30th November 2003.
S.N. SILVA, C.J.-1 agree.
ISMAIL, J.- I agree.
Relief granted.
