Sri Lanka Law Reports
 2 Sri L.R.
PERERA AND ANOTHER
P. S. DE SILVA, C.J.
ANANDACOOMARASWAMY, J. ANDDR. SHIRANI BANDARANAYAKE, J.
S.C. APPEAL NO. 88/96.
C.A. NO. 931/93.
MARCH 06, 1997.
Certiorari – Appointment outside cadre of Bank – Absence of Rules regulatingprocedure for appointment – Legitimate expectation.
When the appointment made was one outside the normal cadre of the Bank andthere are no rules regulating the procedure for such appointments, the petitionerchallenging the appointment and claiming it as being more qualified andexperienced cannot be said to have a legitimate expectation of being appointedto the post. There was no evidence that the Board of Directors abused its powers.
Certiorari cannot issue.
Cases referred to:
Vidyodaya University v. Linus Silva 66 NLR 505.
Malloch v. Aberdeen Corporation (1971) 1 W.L.R. 1578,1596.
APPEAL from judgment of Court of Appeal.
E. D. Wikramanayake with Anandi Cooray and U. Abdul Kajeem for 2ndrespondent-appellant.
Ms. Marino Fernando lor 1st petitioner-respondent.
K.C. Kamalasabayson, A.S.G. with U. Egalahewa, S.C. for respondent-respondents.
Cur. adv. vult.
G. P. S. DE SILVA, C. J.
The 1st petitioner who was at that time the Assistant GeneralManager (Domestic Credit) of the 1st respondent (National SavingsBank) moved the Court of Appeal by way of an application for a writof certiorari to quash the appointment of the 2nd respondent madeby the 1st and 3rd to 6th and 8th to 10th respondents; and for a writ
Waas Gunawardena v. Perera and Another (G. P. S. de Silva, C.J.)
of mandamus directing the respondents to make a fair and impartialappointment after due and sufficient inquiry. (The 2nd petitioner hadearlier withdrawn from the proceedings). The 3rd respondent was theChairman of the 1st respondent bank: the other respondents weremembers of the Board of Directors of the 1st respondent bank.
The 3rd respondent had recommended to the Board of Directorsthat the 2nd respondent be recruited to the 1st respondent bank interms of section 77 of the National Savings Bank Act to a postdesignated “Deputy General Manager” outside the normal cadre ofthe bank. The recommendation was accepted by the Board ofDirectors and the 2nd respondent was appointed as Deputy GeneralManager with effect from 1st August, 1993. Prior to the impugnedappointment, the 2nd respondent was a public officer and she hadbeen seconded from the Ministry of Agriculture, Lands and Forestryto the 1st respondent bank as a consultant (Janasaviya Division) inAugust, 1992.
The 1st petitioner averred in his petition that the appointment of the2nd respondent was “irregular and wrongful” inasmuch as the Boardof Directors: (a) failed to advertise the post; (b) failed to notify thepetitioner and other employees of the 1st respondent bank of thevacancy; (c) overlooked the fact that the 2nd respondent hasabsolutely no experience in banking. It was further averred that thepetitioner was more qualified than the 2nd respondent bothacademically and by way of experience in banking, and theimpugned appointment deprived him of his legitimate expectation ofpromotion in the bank where he had served since 1978.
The Court of Appeal took the view that in appointing the 2ndrespondent to the post of Deputy General Manager, the Board “hadnot followed the normal practice of advertising the post and callingfor applications from persons having the required qualifications …There has prima facie been a procedural irregularity which makes theappointment of the 2nd respondent open to challenge before thiscourt in the exercise of its writ jurisdiction. The procedural irregularityor procedural vires goes to the root of the appointment of the 2ndrespondent to the relevant post. The Board has abused its powers inmaking the said appointment by not following the normal procedureand it has to be quashed." The Court of Appeal allowed theapplication for writ of Certiorari and Mandamus.
Sri Lanka Law Reports
 2 Sri LR.
Against the judgment of the Court of Appeal, the 2nd respondenthas now appealed to this Court. The gravamen of the 1st petitioner'scomplaint as set out in his petition (and referred to above) savours ofa denial of equal protection, violative of Article 12(1) of theConstitution. The pith and substance of the petitioner’s complaint isthat the impugned appointment was arbitrary and discriminatoryinasmuch as the normal practice of advertisement and calling forapplications was not followed; the petitioner and other employeeswere not aware of the vacancy, and were deprived of the opportunityof applying for the post. It was further alleged that the requiredexperience in banking was overlooked. On a scrutiny of theaverments in the petition it appears to me that it does not articulate aground for the issue of certiorari. Admittedly, the appointment madewas one outside the normal cadre of the bank. We were not referredto any rule framed under the National Savings Bank Act whichregulates the procedure for the appointment. The impugnedappointment was not specifically created nor designated by theStatute, the post being one outside the normal cadre. It is verydoubtful whether the petitioner could have had a "legitimateexpectation" of being appointed to the post. There is no evidence tosupport the finding of the Court of Appeal that the Board of Directorshas “abused its powers”. I accordingly hold that there was no groundupon which the Court of Appeal could have issued a writ of certiorarito quash the appointment of the 2nd respondent-appellant.
In this view of the matter, it is unnecessary for me to consider inthis appeal the submission of Mr. E. D. Wikremanayake counsel forthe 2nd respondent-appellant, that this was a case of an ordinarycontract between master and servant and therefore the Court ofAppeal was not competent to grant certiorari to quash theappointment. (University Council of the Vidyodaya University v. LinusSiivam, See also Malloch v. Aberdeen Corporation®).
In the result, the appeal is allowed, and the judgment of the Courtof Appeal is set aside. I make no order as to costs.
ANANDACOOMARASWAMY, J. – I agree.DR. SHIRANI BANDARANAYAKE, J.- I agree.Appeal allowed.
WAAS GUNAWARDENA v. PERERA AND ANOTHER