UPASENA v. RICHARD PATHIRANA MINISTER OF EDUCATION AND OTHERS

039-SLLR-SLLR-2004-V-3-UPASENA-v.-RICHARD-PATHIRANA-MINISTER-OF-EDUCATION-AND-OTHERS.pdf


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UPASENAv
RICHARD PATHIRANA MINISTER OF EDUCATION ANDOTHERSSUPREME COURTISMAIL, J.
WIGNESWARAN, J.
J.A. N. DE SILVA, J.
SC 50/99MARCH 14, 2002
Fundamental Rights Articles 12 (1) and 126 – Extension of service not given -Unreasonable – arbitrary? – Violation – College of Education Act No. 30 of1983.
The Petitioner complains that his second extension of service was not granted.The petitioner was promoted to the post of Dean of the College by theEducation Service Committee of the Public Service Commission and wasacting as the Vice President. Thereafter he was appointed as President of theCollege with effect from 1.6.1993 subject to the condition that he should obtaina post-graduate degree from a recognized university within a period of 3 years.
Thereafter in 1994 he obtained his Masters and was confirmed in the said postwith effect from 1.6.1993. When the petitioner reached his fifty years on
he applied for an extension and was duly granted 1 yearextension. He submitted an application for the second extension from
– 16.10.1999 which was recommended by the Chief Commissionerof the Board. Though there was no reply he continued to work till 31.12.1998
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(J.A.N. de Silva J.)
– and was paid his salary. On 15.12.1998 he was informed that an extensioncould not be granted to him beyond 56 years. The petitioner complains ofviolation of Article 12 (1).
The respondent contended that at the time of the petitioner’s appointment tothe post of President of the College he did not possess the requisitequalifications applicable to the post – graduate degree and 15 yearsexperience and further on or about 3.12.1997 that Cabinet of Ministersdecided the services of persons in the petitioner’s category should not beextended beyond 55 years.
Held:
When the petitioner was appointed as the President of the College ona Cabinet decision he was given 3 years time to obtain post-graduatequalification which he lacked at the time of appointment. He hadobtained this requisite qualification within the stipulated period. In facthis first extension was duly granted.
On the question of the requisite experience, it is observed that theEducation Department had not found anything wanting in hisadministration during the relevant period. In the circumstances, thedecision not to extend the services beyond 56 years was unreasonableand arbitrary and constitutes a violation of Article 12 (1).
APPLICATION under Article 126 of the Constitution.
R.K. W. Goonesekera with Upul Jayasuriya for petitioner.
Saleem Marsoof PC Additional Solicitor General with Indika Demuni de SilvaSSC for respondents.
Cur.adv.vult.
March 14, 2002.
J. A. N. DE SILVA, J.The petitioner’s complaint is in respect of the refusal to grant 01him his second extension of service as the President of theHapitigama College of Education at Mirigama, a Collegeestablished under the College of Education Act, No. 30 of 1985.
The petitioner who is a graduate from the Vidyodaya Universitywas appointed as a graduate teacher at Deiyandara MahaVidyalaya, Matara with effect from 26.07.1970. Subsequently hewas promoted as an acting Principal and a Teacher TraineeInstructor attached to the Colombo South Education office at GreenPath. As evidenced by document Pic he obtained a Post-graduate 10Diploma in Education from the University of Colombo in 1979.
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In 1986 when Colleges of Education were established under theColleges of Education Act, No. 30 of 1983 he was appointed as anAssistant Lecturer Grade 01 at the Mirigama Hapitigama College ofEducation with effect from 01.01.1985 with the approval of theCabinet of Ministers. Thereafter, the Education Service Committeeof the Public Service Commission promoted him to the post ofDean of the said College with effect from 01.11.1986 (Vide P4b (1)and b (11)) and as the acting Vice President on 01.03.1990.
In early 1993, the petitioner made an appeal to the former 20President of Sri Lanka who was also the Minister of Educationseeking confirmation in the said post. Although the said appeal hadbeen forwarded to the Education Service Committee of the PublicService Commission with an endorsement by the President toconfirm the petitioner along with two others similarly circumstancedviz. Mrs. V. Marimuttu acting Principal of Sripada College ofEducation and Mr. A. R. A. Aziz acting President of AddalachchenaiCollege of Education, the Education Service Committee by letterdated 22.06.1993 informed the Secretary to the Ministry ofEducation of its inability to do so as all three had not possessed the 30qualifications stipulated in the relevant Scheme of Recruitment. Inthis back drop the Minister of Education submitted a Cabinet Paperseeking approval to appoint Principals of Technical Colleges andPresidents of College of Education who have completed at leastone year of satisfactory service as at 01.06.1993 and this proposalwas approved on 07.07.1993. Thereafter by letter marked P4(D)the Education Service Committee of the Public ServiceCommission appointed the petitioner to the post of PresidentHapitigama College of Education with effect from 01.06.1993,subject to the condition that he should obtain a post-graduate 40degree from a recognized university within a period of three years.
As evidenced by document marked P1 (b) the Petitioner hadobtained the degree of Master of Education from the University ofColombo in 1994 and was confirmed in the said post with effectfrom 01.06.1993 P (11). When the petitioner reached the fifty fifthyear on 17.10.1997, the optional age of retirement from the publicservice, he applied for an extension which was duly granted for oneyear in terms of the Establishment Code. He submitted anapplication for the second extension of service for the period
to 16.10.1999 to the Secretary to the Ministry of 5(
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Education through the Chief Commissioner of the Board (5threspondent) who recommended it. Although there was no reply tothat letter the petitioner continued to work till 31.12.1998 and waspaid his salary. By letter dated 15.12.1998 (P9) the petitioner wasinformed that an extension could not be granted to him beyond 56years.
Learned Counsel for the petitioner submitted that the refusal togrant the 2nd extension was arbitrary and unreasonable andconstitutes a violation of the petitioners fundamental rightsguaranteed under Article 12 (1) of the Constitution of the Republic 60of Sri Lanka.
Mr. Marsoof P.C./Additional Solicitor General who appeared forthe respondents submitted that the refusal of the second extensionby the Education Service Committee of the Public ServiceCommission was justified in view of the Cabinet decision dated
(4R.1) which was based on an earlier cabinet decision.
Mr. Marsoof P.C. submitted that on or about 03.12.1997, theCabinet of Ministers decided that the services of persons who havebeen appointed to any Management or Administrative post in thecadre of any Educational Institute outside the approved scheme of 70recruitment should not be extended beyond the age of 55 years. Hedrew the attention of court to Cabinet Memorandum dated28.11.1997 and the Cabinet decision dated 03.12.1997 and also tothe circular letter dated 22.06.1998 issued to the Secretary to theMinistry in terms of the said cabinet decision. It was the contentionof the respondents that at the time of the petitioner’s appointmentto the post of President of Hapitigama College of Education, thepetitioner did not possess the requisite qualifications applicable tothe post namely, a post-graduate degree from a recognizedUniversity and fifteen years' experience. Therefore the decision of sothe Cabinet not to allow such persons extensions beyond 55 yearsapplied to the petitioner.
It is observed that when the petitioner was appointed as thePresident of the Hapitigama College on a Cabinet decision he wasgiven three years’ time to obtain post-graduate qualification whichhe lacked at the time of the appointment. The petitioner obtainedthis requisite qualification within the stipulated period. Thepetitioner’s first extension in service was duly granted by the
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Secretary of the Ministry of Education P (6). It is also to be notedthat the petitioner was made permanent in his post of President, 90Hapitigama College of Education by the Secretary to the EducationCommittee, after being satisfied that the petitioner was qualified tobe made permanent vide (P 11). The petitioner’s 2nd extension toohad been recommended by the Chief Commissioner of theColleges of Education Board, the 5th respondent in this case.
On the question of the requisite experience it is observed thatthe Education Department had not found anything wanting in hisadministration during the relevant period. In fact the confirmation ofthe petitioner in the post is an indication that he is an ableadministrative officer. I do not think that respondents should be 100allowed to take advantage of this fact viz lack of experience havingregard to their conduct.
It is also to be noted that the petitioner’s case is different to thatof Mrs. Marimuttu and Mr. Aziz who were also appointed asPresidents of Education Colleges. There is nothing to establish thatthe above mentioned two were required to obtain the necessaryeducational qualification with their appointment. Even if theirappointments were conditional it may be that they were notconfirmed in their posts due to their failure to fulfill the conditionsafter the appointment. There is no material before us to think 110otherwise.
In the circumstances of this case I hold that the decision not toextend the services of the petitioner beyond 56 years wasunreasonable and arbitrary and constitutes a violation of thepetitioner’s fundamental right guaranteed under Article 12 (1) of theConstitution. I therefore direct that he be paid a sum of Rs.75,000.00 as compensation by the State. The petitioner is alsoentitled to a sum of Rs. 5,000.00 as costs of this application.
ISMAIL, J.- I agree.
WIGNESWARAN, J. – I agree.
Relief granted.
Compensation ordered.