Tuan Ishan Raban and others v Members of the Police Commission andSC Pradeep Priyadarshana v Members of the PoHce Commission and others35^
TUAN ISHAN RABAN AND OTHERSvMEMBERS OF THE POLICE COMMISSION ANDPRADEEP PRIYADARSHANAv
MEMBERS OF THE POLICE COMMISSION AND OTHERSSUPREME COURT.
DR. SHIRANI BANDARANAYAKE, J.FERNANDO, J. ANDMARSOOF, J.
S.C. (F.R.) APPLICATION 599/2003 ANDS.C. (F.R.) APPLICATION 650/20035TH JULY, 2006
Fundamental Rights – Right to equality – Articles 14(1) and 12(1) of theConstitution. Police Ordinance – Section 26(B), Section 26(H) -Thirteenth Amendment.
The petitioners in these two applications joined the Sri Lanka Police Force
as Reserve Sub-Inspectors of Police. In their petitions they state that theywere assigned to carry out the same duties that were performed by theSub-Inspectors of the Regular Police Force. In their petitions they furtherstate that they had received identical salaries and emoluments that weregiven to the Sub-Inspectors of the Regular Police Force and weresubjected to same disciplinary procedures and Code of Conduct in themanner applicable to the Sub-Inspectors of the regular Force. It is theposition of the petitioners that there is hardly any difference between theSub-Inspectors of the Reserve Force and the Regular Force in the Police.In these circumstances petitioners in both petitions state that it is unequal,unfair and arbitrary for them to be treated differently from the Sub-Inspectors of the regular Police Force. Accordingly, they alleged that ft isunequal unfair and arbitrary for them to be treated differently from theSub-Inspectors of the Regular Force in terms of the Circular marked P1by which they have to serve six years in the Regular Force prior topromotion and in the circumstances violated their fundfn]^^l rightsguaranteed under and in terms of Article 12, 12(1) and 14(1) of theConstitution.
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Held:
Equality as postulated in Article 12(1) of the Constitution means theright of a person to be treated alike among his equals and suchrights to be administered equally. Accordingly, Article 12(1) of theConstitution ensures the protection from arbitrary anddiscriminatory actions by the executive and/or the administration;
perShirani Bandaranayake, J.
"However such guaranty does not forbid reasonable classification,which is founded on intelligible differentia. The concept of equality onlyforbids actions which are unreasonable, arbitrary and capricious andnot the classification that is reasonable."
The officers of the Regular Force and the Reserve Force of thePolice belong to two different categories and therefore the Clause2.1.111 in the Circular 'P1‘ cannot be regarded as unequal, unfair,arbitrary or violative of the petitioners fundamental rightsguaranteed in terms of Article 12(1) of the Constitution.
APPLICATION for infringement of fundamental rights.
Cases referred to:
Ram Krishna Dalmia v Justice Tendoikar (A.I.R. 1958 S.C. 538).
The State of Jammu and Kashmir v Triioki Nath Rhosa and others(A.I.R. 1974 S.C. 1)
Romesh de Siiva, P.C. with Sugath Caldera for petitioners.
Rajiv GoonatiUake, State Counsel for respondents.
Cur.adv.vult.
July 07, 2006
DR. SHIRANI BANDARANAYAKE, J.
The petitioners in these two applications (S.C. ApplicationNos. 599/2003 and 650/2003), joined the Reserve Cadre of theSri Lanka Police Force and had functioned as Sub-Inspectorsof Police for varying periods. According to the petitioners, anundated Circular was issued on 21.10.2003, signed by the 9threspondent in S.C. (Application) No. 599/2003, which stated inClause 2.1.Ill, that Sub-Inspectors of Police/Women SubInspectors of Police, who had been serving in the post of Sub-
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Inspector of Police for six years after confirmation would beeligible to apply for the post of Inspector of Police (P1).
The petitioners stated that although they had entered the SriLanka Police Force as Reserve Sub-Inspectors of Police, theywere assigned to handle identical duties that were carried outby the Sub-Inspectors of the Regular Police Force. Moreover,the petitioners had received the identical salaries andemoluments that were given to the Sub-Inspectors of theRegular Police Force and were subjected to the same orders,code of conduct, disciplinary procedures as were applicable tothe Sub-Inspectors of the Regular Force. Accordingly, thepetitioners claimed that they are in fact identical and equal tothe Sub-Inspectors of the Sri Lanka Regular Force. In thecircumstances, the petitioners alleged that it is unequal, unfairand arbitrary for them to be treated differently from the Sub-Inspectors of the Regular Force and that the aforementionedClause 2.1.Ill of the undated Circular (P1) by which they haveto serve six years in the Regular Force prior to promotion isalso unequal, unfair, arbitrary and violative of their fundamentalrights guaranteed in terms of Articles 12, 12(1) and I4(1)(g) ofthe Constitution.
This Court granted leave to proceed for the allegedinfringement of Article 12(1) of the Constitution.
Learned President's Counsel for the petitioners submittedthat for the purpose of promotion, experience is needed and therationale behind the need for having such experience is to seewhether the relevant Officer is qualified to serve in the nextrank. Learned President's Counsel contended that at the pointof entry the qualifications for enlistment as Sub-Inspectors ofthe Sri Lanka Reserve Force, was similar to the enlistment ofSub-Inspectors in the Regular Force and considering thenature of the functions of the Regular Force and Reserve Forcebeing identical, the years of service of the petitioners spent inthe Reserve Force should be taken into account whenconsidering the promotions to the rank of Inspector.
Admittedly, the petitioners do not have six (6) years ofservice as Sub-Inspectors in the Regular Force and therefore
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they are precluded from applying for the said promotion. Thecontention of the petitioners therefore is that, the service of thepetitioners as Sub-Inspectors in the Reserve Force should beconsidered along with their service as Sub-inspectors in theRegular Force, so that they would have the necessary six yearsas Sub-Inspectors, to apply for the promotion in question.
Learned State Counsel for the respondents contended thatthe petitioners, being officers of the Reserve cadre cannot beequalled with the Officers of the Regular Service for severalreasons and therefore the petitioners' applications in S.C. (FR)No. 599/ 2003 and S.C. (FR) No. 650/2003 cannot be allowed.
The question that arises for consideration therefore is whetherthe Regular Force and the Reserve Force of the Sri Lanka Policecould be equalled on the basis of duties and functions of therespective Officers or whether they should be recognised asunequals, who belong to two separate categories.
Admittedly the petitioners in both these applications at thepoint of entry, joined the Reserve Force of the Sri Lanka Police.The Police Ordinance refers to a General Police Force as wellas a Police Reserve for the purpose of assisting the PoliceForce in the exercise of its powers and the performance of itsduties.
Learned State Counsel for the respondents strenuouslycontended that the Regular Officers and Reserve Officers ofthe Sri Lanka Police belonged to two different classes ofOfficers, who were classified as such for objective reasons,which included the following:
the Reserve Force and the Regular Force arecategorized separately under the Police Ordinance;
different requirements are applicable for recruitment andfor promotions in the Regular Force and Reserve Force;and
different terms of employment are applicable in theRegular and the Reserve Force.
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In order to consider the submissions of the learned StateCounsel for the respondents, let me now turn to examine theaforementioned reasons, separately.
The Reserve Force and the Regular Force arecategorized separately under the Police OrdinanceThe Police Ordinance (hereinafter referred to as theOrdinance) clearly refers to the establishment of a GeneralPolice Force as well as a reserve Police Force. Whilst section3 of the Ordinance refers to a General Police Force for thepurpose of effectual protection of persons and property, section24 deals with the Reserve Police Force to assist the PoliceForce in the exercise of its powers and the performance of itsduties. Thus the Reserve Police Force was established for thepurpose of assisting the regular Force in the performance oftheir duties and it is apparent that in terms of the provisions ofthe Ordinance that Officers of the Reserve Force had to bemobilised and de-mobilised from time to time, section 26B(1) ofthe Ordinance deals with this aspect and this section reads asfollows:
"The Commandant shaft, on the directions of theInspector-General of Police, mobilize such officers ofthe police reserve as are required to assist the police forcein the exercise of its powers and performance of its duties.No such officer shall be de-mobiiized by theCommandant except on the direction of the Inspector-General of Police (emphasis added}."
The provision for mobilization and de-mobilization clearlyexplains the rationale for a Reserve Force in the Sri LankaPolice. Since the establishment of the reservists is only for thepurpose of assisting the Police Force, such mobilization is foran emergency or for a situation which requires a large numberof Police Officers to carry out their functions. Therefore whenthe emergency or the situation that justified the mobilization ofthe Reserve Force is no longer in existence, it would becomenecessary to demobilize such officers, who were mobilized tocater for a special situation.
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The fact that the Reserve Police Officers are required for anexigency is clear from section 26F of the Police Ordinance,which requires in law for all employers of such Reservists togive all facilities to undergo and render such training andservice as may be required without any adverse impact to theirnormal careers.
It is also to be noted that an officer of the Reserve Forcecould use his police powers only during his mobilization.Section 26G of the Police Ordinance clearly stipulates that itwould be illegal for a Reservist to wear his uniform withoutbeing mobilized.
Admittedly such conditions or restrictions such asmobilization and de-mobilization, as referred to earlier, are notapplicable to the regular Force of the Sri Lanka Police in termsof the provisions of the Police Ordinance.
Learned President's Counsel for the petitioners contendedthat no Officer of the Reserve Force has been de-mobiiized forthe last 25 years and therefore that the term 'Reserve' is only anomenclature of the past. Learned State Counsel did notdispute the fact that for a long period there has been no-demobilization of the Reserve Force. However, his position wasthat there has been a prolonged State of Emergency in thecountry requiring the Regular Police Force to carry out paramilitary duties, enabling the Reserve Force to be mobilizedover many years. His contention was that these specialcircumstances did not change the character of the ReserveForce.
On a consideration of the provisions pertaining to thecharacter of the Reserve Police Force, especially regardingmobilization and de-mobilization, it is apparent that, althoughthere has been no de-mobilization for a very long period, thathas not taken away the concept of mobilization and de-mobilization of the Reserve Police Force and therefore noprovision has been made for the change of the character of theReserve Police Force. In such circumstances, merely for thereason that there has been no de-mobilization, it cannot be
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considered that the reserve Police Force has been equalled tothe Regular Police Force.
Different requirements are applicable for recruitmentand for promotions in the Regular Force and ReserveForce;
On an examination of the requirements that are necessaryfor joining the Reserve Force, it is apparent that suchrequirements had been lower than what was required for theentry to the Regular Police Service. For instance, paragraph2.2 of Sri Lanka Police Gazette No. 618A of 11.07.1990 refersto officers in the Reserve Force 'who have lesser educationalqualifications than the required educational qualifications inrespect of similar posts in the Regular Service' (P3).
The aforementioned Gazette Notification also drawsattention to specific provisions regarding absorption ofReservists with the required educational qualifications and withlesser educational qualifications. Accordingly, paragraph 3allows absorption of reservists with the required educationalqualifications to the Regular Police Force after 3 years ofsatisfactory continuous service. Paragraph 4 on the other handstates that Reservists with lesser educational qualificationscould be absorbed to the Regular Police Force only after 5years of continuous service in the Reserve Force (P3).
In 1992 these requirements were amended by I.G.'s CircularNo. 1044/92 dated 17.12.1992 by increasing the 3 year periodto 5 years and the 5 year period into 8 year of service in theReserve Force, respectively.
It is to be noted that in terms of I.G.'s Circular No. 1044/92,three Advanced Level passes were required to join the ReservePolice Force as a Sub-Inspector of Police (Annexure I).However, according to the affidavit of the 7th respondent andthe document marked 7R1 (S.C. application No. 599/2003),which contains the details of the qualifications, date ofenlistment and the date of absorption of the petitioners in S.C.(Application) No. 599/2003, indicates that out of the 27petitioners, 19 petitioners had not qualified in the Advanced
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Level Examination, 7 have passed the Advanced LevelExamination and 1 petitioner had completed one subject of thesaid Examination. Accordingly in terms of the present criteria,some of the petitioners would not have qualified to be Sub-Inspectors in the Reserve Police Force.
Different terms of employment in the Regular and theReserve ForceUntil the year 1992, officers of the Reserve Police Forcewere paid on a daily basis and were not eligible for a pension.By I.G.'s Circular No. 1044/92 dated 17.12.1992 provision wasmade for the Reservists to be paid a monthly salary, providedthat the period of their mobilized service was not less than 26days for the calendar month and a complete 12 months ofmobilized service for an increment. Moreover in terms of theaforesaid Circular, an Officer in the Police Reserve was entitledto a pension only after he had completed an aggregate of notless than twenty years mobilised service. Therefore theReservists were allowed to contribute to the Widows andOrphans Pension Fund, only if and when they complete anaggregate of 20 years of mobilized service.
Considering the aforementioned circumstances, it is evidentthat the learned State Counsel had quite correctly contendedthat although there were changes in the mode of payment ofemoluments and the consideration given for the Reservists tobe entitled to a pension, that a reservist could still be de-mobilized.
It appears that the consideration given for the changes in themode of payments of salary and the entitlement to a pensionhave been to accommodate the Reserve Force, who had beenin long periods of service due to the prolonged situation in thecountry.
Accordingly it is obvious that the Regular Force and theReserve Force still remain as two different entities. This factoris further established on a consideration of the provisions whichcame in along with the 17th Amendment to the Constitution.Prior to the 17th Amendment, the Public Service Commission
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was empowered to appoint and promote the Police Officers.However, the Public Service Commission had no authorityregarding such appointments and/or promotions of the ReserveForce and the mobilization and de-mobilization of the ReserveForce was carried out by the Inspector General of Police interms of the Police Ordinance. Since the introduction of the17th Amendment to the Constitution, the powers and functionsregarding the appointments and transfers of the Regular PoliceForce was given to the National Police Commission in terms ofArticle 155(G)l(a) of the Constitution. However, this did notinclude the Reserve Force and Reservists are still subject tothe provisions contained in section 26B(i) of the PoliceOrdinance, which includes mobilization and de-mobilizationand section 26(H), which deals with the recruitment, conditionsof service and matters with regard to discipline.
It is thus apparent that the Regular Police Force and theReserve Police Force do not belong to a single category, andtherefore the reserve Force cannot be equalled to the RegularPolice Force.
Having considered the nature of the Regular and theReserve Force of the Sri Lanka Police let me now turn toexamine whether there is any infringement in terms of Article12(1) of the Constitution as complained by the petitioners.
Article 12(1) of the Constitution deals with the right toequality and reads as follows.
"All persons are equal before the law and are entitled
to the equal protection of the law".
Equality as postulated in Article 12(1)of the Constitutionmeans the right of a person to be treated alike among hisequals and such rights to be administered equally. Equalitythus means that there should not be any discrimination amongthose who are equally circumstanced. Thus Article 12(1) of theConstitution ensures the protection from arbitrary anddiscriminatory action by the executive and/or theadministration. The objective of Article 12(1) of the Constitutiontherefore is to give persons equal treatment.
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However, such guaranty does not forbid reasonableclassification, which is founded on intelligible differentia. Theconcept of equality only forbids action which is unreasonable,arbitrary and capricious and not the classification that isreasonable. This is based on the theory that a classificationwhich is good and valid cannot be regarded as arbitrary. Theconcept of reasonable classification was considered in detail inthe well known decision in Ram Krishna Dalmia v JusticeTendolka&K where it was clearly stated that for a validclassification two conditions have to be satisfied. Theseconditions could be specified 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.
A classification to come within the framework of Article 12(1)of the Constitution there must therefore be some rational nexusbetween the basis of classification and the objects intended tobe achieved by such classification. In The State of Jammu andKashmir v Triloki Nath Rhosa and others^2), the question ofclassification of Assistant Engineers between Diploma holdersand Degree holders for promotion as Executive Engineerscame before the Indian Supreme Court where it was decidedthat such a Rule does not violate the equality Clause of theConstitution. Considering the question at issue, Chandrachud,J. in State of Jammu and Kashmir (supra) stated that,
"Since the Constitutional Code of equality and equalopportunity is a charter for equals, equality of opportunityin matters of promotion means an equal promotionalopportunity for persons who fall, substantially within thesame class. A classification of employees can therefore bemade for first identifying and then distinguishing membersof one class from those of another … though personsappointed directly and by promotion were integrated into acommon class of Assistant Engineers, they could, for
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purposes of promotion to the cadre of ExecutiveEngineers, be classified on the basis of educationalqualifications. The rule providing that graduates shall beeligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of theConstitution and must be upheld. “
On a careful comparison of the characters of the ReservePolice Force and the Regular Police Force, on the basis of theaforementioned analysis, it is evident that they belong to twodifferent categories without any rational nexus to link the twogroups for the purpose of putting them together.
In such circumstances, it is abundantly clear that theOfficers of the Regular Force and the Reserve Force belong totwo different categories and therefore the decision of therespondents to include Clause 2.1.Ill in the undated Circular P1cannot be regarded as unequal, unfair, arbitrary or violative ofthe petitioners fundamental rights guaranteed in terms ofArticle 12(1) of the Constitution.
I therefore hold that the petitioners have not been successfulin establishing that their fundamental rights guaranteed interms of Article 12(1) of the Constitution had been violated.
For the reasons aforementioned these two (2) applicationsare dismissed.
I make no order as to costs.
FERNANDO, J – I agree.
MARSOOF, J.I agree
Applications dismissed.
