042-SLLR-SLLR-1998-1-TRINITA-PERERA-v.-JAYARATNE-AND-OTHERS.pdf
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Sri Lanka Law Reports
(1998)1 Sri L.R.
TRINITA PERERA
v.JAYARATNE AND OTHERS
SUPREME COURTG. P. S. DE SILVA, CJ„
PERERA, J. AND
SHIRANI BANDARANAYAKE, J.
S.C. APPLICATION NO. 8/96
JANUARY 26, 27 AND FEBRUARY 11, 1998.
Fundamental Rights – Post of Sub-Post Master – Appointment on a Cabinetdecision – Failure to hold an interview for applicants – Pleasure Principle – Articles12 (1), 55 (1) and 55 (4) of the Constitution.
In response to a notice dated 25.4.1995 (P2) calling for applications for the postof Sub-Post Master, Bowela Sub Post Office, the petitioner applied for the post.However the notice P2 was cancelled and the 3rd respondent was appointed tothe post with the approval of the Cabinet of Ministers.
Held:
The "Pleasure Principle" in Article 55 (1) of the Constitution is subject tothe equality provision of Article 12 of the Constitution; the power to makerules under Article 55 (4) must be interpreted so as to avoid inconsistencywith Article 12 and the Rule of the Law.
The appointment of the 3rd respondent to the Post of Sub Post Mistresswas contrary to the scheme of Recruitment and it was arbitrary, unfairand unreasonable and violative of Article 12 (1). The appointment istherefore null and void.
sc
Trinita Perera v. Jayaratne, and Others
(Shirani Bandaranayake, J.)
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Cases referred to:
Bandana and another v. Premachandra. Secretary, Ministry of Lands,Irrigation and Mahaweli Development and others (1994) 1 Sri LA 301.
Wijesinghe v. Attorney-General and Others (1978 – 1980) 1 Sri LR 102.APPLICATION for relied for infringement of fundamental rights.
A. A. de Silva with Jayalath Hissella for the petitioner.
K. Tiranagama for the 3rd respondent.
K. Siripavan D.S.G with N. Pulle S.C. for 1st, 2nd and 4th respondents.
Cur. adv. vult.
March 5, 1998.
SHIRANI BANDARANAYAKE, J.
The petitioner alleges that her fundamental rights guaranteed underArticle 12 (1) were violated by the respondents, as they had appointedthe 3rd respondent as the Sub Post Mistress of Bowela Sub Post. Office, without considering the petitioner's application. This Courtgranted leave to proceed for the alleged infringement of Articles12 (1) and 12 (2).
According to the petitioner, applications for the post of Sub PostMaster of Bowela, Sub Post Office were called for by the 2nd re-spondent by the notice dated 25.04.1995 (P2). According to P2, theapplicants should be residents of the area served by the Sub PostOffice, at least for five years. Moreover, the recruitment schemespecified that the selections would be based on an interview and thatthe marks would be given out of 200 (P2). The petitioner avers thatshe posessed the required qualifications and that she submitted herapplication to the Sub Post Master on 24.05.1995. Furthermore, thepetitioner had qualified as a registered substitute in the postal serviceand this, according to the petitioner, was an additional qualification.The final date for the submission of applications was 02.06.1995 andthe petitioner avers that she did not receive a notification calling herfor an interview. Further she avers that the 2nd respondent, by a noticedated 31.05.1995, cancelled P2.
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On 12.12.1995, the petitioner's mother who was the Acting SubPost Mistress of Sub Post Office, Bowela, received a copy of a letterdated 11.12.1995, which was sent by the 1st respondent to the 2ndrespondent, directing the 2nd respondent to appoint the 3rd respondentas the Sub Post Master of Bowela, on the basis of a Cabinet decision(P6).
The position of the petitioner is that the 3rd respondent had notsubmitted an application for the Post of Sub Post Master of the BowelaSub Post Office according to the terms specified in P2. Moreover,the petitioner avers that the 3rd respondent is not qualified to beappointed as she is not resident in the area served by the Sub PostOffice, Bowela. Accordingly, the petitioner contends that the purporteddecision of the Cabinet of Ministers to appoint the 3rd respondentas the Sub Post Master, Bowela, is contrary to the Scheme ofRecruitment set out in P2, and is unjust, arbitrary and violative ofthe fundamental rights enshrined in the Constitution.
The learned Counsel for the 3rd respondent submitted that, the3rd respondent was politically victimized on several occasions. Shewas appointed to act as the Sub Post Mistress of Bambarapana inNovember, 1992, when the Sub Post Master of Bambarapana gaveup his post due to terrorist threats. The 3rd respondent had workedin that capacity of acting Sub Post Mistress for 4 years and 11 months,until October, 1993. Though the 3rd respondent was appointed to thesaid post in December, 1990, her appointment had been suspendedin September, 1991, due to political victimization. She had appliedwhen applications were called for but this was rejected and theMinister's nominee was appointed on 04.10.1993. The learned Counselfor the 3rd respondent, submits that, under the Circular marked 3R1,the respondent was entitled to confirmation in service as a Sub PostMistress on the completion of 5 years' of satisfactory service as anActing Sub Post Mistress, irrespective of the requirements relating toage and residence. One month prior to her completion of 5 years'of service, denying her the benefit of Circular 3R1, she was removedfrom service for political reasons and the Minister's nominee wasappointed as the Sub Post Master, Bambarapana. Although the 3rdrespondent had invoked the jurisdiction of the Supreme Court andobtained an interim order restraining the authorities from removing herfrom the post, when the stay order was vacated on 04.05.1994, herservices were terminated with effect from 31.05.1994. This was the3rd occasion she was subjected to political victimization. However,
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Trinita Perera v. Jayaratne, and Others
(Shirani Bandaranayake. J.)
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the 3rd respondent had made an appeal to the Prime Minister in 1994(3R4) which was referred to the Political Victimization Committee andon the recommendation of the Committee with the approval of theCabinet of Ministers, she was appointed as the Sub Post Mistress,Bowela, by P6.
The position of learned Counsel for the 3rd respondent was thatthe 3rd respondent's appointment was made in order to rectify theinjustice repeatedly done to her and that it was not in violation ofthe petitioner's fundamental rights. He further submits that the 3rdrespondent has completed 5 years' of satisfactory service andthat she is entitled to be appointed irrespective of the requirementpertaining to residence in terms of P2.
The learned Deputy Solicitor-General for the 1st, 2nd and 4threspondents submitted that, although the applications were called forby P2 for the post of Sub Post Master, Bowela, on 25.04.1995, witha closing date for applications fixed for the 02.06.1995, the noticecalling for applications had been cancelled on 31.05.1995. On theapplication made by the 3rd respondent to the Political VictimizationCommittee of the Ministry of Posts and Telecommunication againstthe manner of her termination as the Sub Post Mistress of BambarapanaSub Post Office, the Committee had recommended her appointmentto the Post of Sub Post Mistress at the Bowela Sub Post Office, whichwas vacant at that time. Pursuant to the said recommendation, aCabinet Memorandum dated 03.10.1995 (1R3) was submitted forCabinet approval and was approved on 18.10.1995 (1R4) grantingauthority to appoint the 3rd respondent to the Post of Sub PostMistress at the Bowela Sub Post Office.
The position of learned Counsel for the petitioner was that whenthe Memorandum regarding the appointment of the 3rd respondentwas submitted to the Cabinet, the Cabinet of Ministers was not notifiedthat applications were called for the appointment of a Sub Post Masterfor Bowela Sub Post Office. His contention is that the 3rd respondentis not qualified to be appointed to Bowela as she is not residing inthe area and by appointing the 3rd respondent to Bowela Sub PostOffice, the Cabinet of Ministers has violated the fundamental rightguaranteed under Article 12 (1) of the Constitution.
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It is the contention of the leraned Counsel for the petitioner thatthe equal protection of the law guaranteed in terms of Article 12 (1)of the Constitution cannot be violated by the Cabinet of Ministers. Herelied on the ruling in Bandara and another v. Premachandra, Secretay,Ministry of Lands, Irrigation and Mahaweli Development and others1'1,where it was held that "the 'pleasure principle' in Article 55 (1) of theConstitution is subject to the equality provision of Article 12 andmandates fairness and excludes arbitrariness”. The learned Counsel'ssubmission is that the petitioner and the 3rd respondent are equallysituated and therefore the appointment of the 3rd respondentviolates the petitioner's right to the equal protection of the law. Withthis submission, I agree.
The learned Deputy Solicitor-General for the 1st, 2nd and 4threspondents contended that there was no infringement of thepetitioner's fundamental rights guaranteed under Article 12 (1) as therewas no discrimination or unequal treatment of the petitioner. In supportof this submission, the learned Deputy Solicitor-General relied on theruling in Wijesinghe v. Attorney-General and others!2>. The petitionerin that case, was appointed as the Sub Post Mistress of EllagawaSub Post Office in April, 1975. She complained that her services wereterminated with effect from 31st January, 1979, by the Post MasterGeneral, in consequence of a Cabinet decision, following a report ofa Political Victimization Committee. In Wijesinghe's case it was heldthat 'it is only a breach of a fundamental right and not an ordinaryright that calls for intervention of the Supreme Court. Every wrongdecision or breach of the law does not attract the Constitutionalremedies relating to Fundamental Rights.' It must be noted thatWijesinghe's case was decided as far back in April, 1979. It seemsto that an unduly narrow and restrictive view of the scope of Article12 (1) was taken in that case. The law has developed considerablysince then.
In Wijesinghe's case (supra), the petitioner's complaint was thather services were terminated, in order to appoint a person who hadbeen recommended by a Political Victimization Committee. In thepresent case, however, the petitioner had applied for a vacancy whichexisted at the Sub Post Office, Bowela based on an advertisementwhich called for applications to fill the vacancy (P2).
sc
Trinita Perera v. Jayaratne, and Others
(Shirani Bandaranayake. J.)
377
The petitioner's complaint is that the 3rd respondent, who was notqualified to be appointed as the Sub Post Mistress, Bowela, wasappointed, by reason of the decision of the Political VictimizationCommittee. She contends that the 3rd respondent was appointedwithout calling for applications and without holding an interview. Onthe facts the present case is distinguishable from Wijesinghe's case.
The contention of the learned Deputy Solicitor-General for the 1st,2nd and 4th respondents is that, in terms of Article 55 (1) of theConstitution, the appointment to the Post of Sub Post Master, Bowela,is held at pleasure and that the Cabinet in the exercise of its powersunder Article 55 (1) could make an appointment or a terminationof an appointment and that this Court would not probe into themotivations of the Cabinet, unless some infringement of the petitioner'sfundamental right is involved.
The 'pleasure principle1 in Article 55 (1) of the Constitution wasdiscussed in Bandara and another v. Premachandra, Secretary, Ministryof Lands, Irrigation and Mahaweli Development and others (supra),where it was held:
The power to make rules under Article 55 (4) must be interpretedso as to avoid inconsistency with Article 12 and the Rule oflaw . . .
Furthermore, Article 4 (d) of the Constitution provides that-
The fundamental rights which are by the Constitution declaredand recognized shall be respected, secured and advanced byall the organs of government and shall not be abridged,restricted or denied, save in the manner and to the extenthereinafter provided . . . (emphasis added)
It is my view that in Wijesinghe, (supra) the impact of Articles 55(1), 55 (4) and especially Article 4 (d) of the Constitution were notconsidered sufficiently. The manner in which the 3rd respondent wasappointed as the Sub Post Mistress, Bowela, is flawed. In my view,the manner in which the 3rd respondent was appointed to the postof Sub Post Mistress, Bowela, is contrary to the approved schemeof recruitment, is arbitrary, unfair, unreasonable and is violative of thepetitioner's fundamental rights guaranteed under Article 12 (1).
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For these reasons, the petitioner's application is allowed and I holdthat the appointment of the 3rd respondent as the Sub Post Mistress,Bowela is null and void. The 1st and 2nd respondents are directedto make the appointment according to law. However, there will beno order for compensation and costs.
G. P. S. DE SILVA, C.J. – I agree.
PERERA, J. – I agree.
Relief granted.