WELIGODAPOLA v. SECRETARY, MINISTRY OF WOMENS AFFAIRS AND TEACHING HOSPITA

007-SLLR-SLLR-1989-V-2-WELIGODAPOLA-v.-SECRETARY-MINISTRY-OF-WOMENS-AFFAIRS-AND-TEACHING-HOSPITA.pdf


SC Weligodapola v. Secretary, Ministry of Women's Affairs (Amerasinghe, J.)
63
WELIGODAPOLA
v.
SECRETARY, MINISTRY OF WOMEN’S AFFAIRS ANDTEACHING HOSPITALS AND OTHERS
SUPREME COURT
TAM8IAH, J„ FERNANDO, J. AND AMERASINGHE, J.
S.C. APPLICATION NO. 5/88FEBRUARY 23 AND 24, 1989
Fundamental Flights – Right of equality – Article 12(1) of the Constitution – PostGraduate Institute of Medicine (PGIM) – PGIM Ordinance No. 1 of 1980 – Generalcircular letters 1089 and 1389 of 20.09.1979.
The law recognizes that the principles of equality does not mean that every law musthave universal application' for all persons who are not, by nature, attainment orcircumstances in the same position. What is required is that persons who by nature,attainment or circumstances are similar are treated alike. If there is a classificationwhich deals alike with those who are similarly situated, someone who is differentcannot be allowed to complain that he has not been treated equally; for being different,he must necessarily expect to be treated differently.
*The State is entitled to lay down conditions of efficiency and other qualifications forsecuring the best service. And when it does so, this Court will not insist that theclassification is scientifically perfect and logically complete. The classification may berefined but it should not be artificial or irrational.
The classification (in Circulars 1089 and 1389 of 20.09.1978) which distinguishesdoctors with foreign qualifications who returned to the country before 1 January 1980and those sent by the Department from others who obtained similar foreignqualifications for the purpose of deciding whether they should be equally recognizedwith PGIM (Post Graduate Institute of Medicine) .graduates in the matter ofappointment is not a classification founded on an intelligent differentia and thereforeviolates the pledge of equality given in Article 12(1) of the Constitution and is ultravires, bad and of no force or avail.
The Circulars are discriminatory and violative of Article 12(1).
(Note by Ed: Fernando, J. while agreeing that the right of equality had been violated,held that the Circulars were only pro tanto void and did not award a solatium).
Cases referred to:
Vick Wo v. Hopkins 30 US L Ed. 220
State of West Bengal v. Anwar Ali AIR 1952 SC 75, 89
Elmore Perera v. Monta. ue Jayawickrema [1985] 1 Sri LR 285, 296, 297, 388
Palihawadana v. Attorney-General [1979] 1 Fundamental Rights pp. 6 – 9
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It989j 2 Sri LR
Yasapala v. Ranil Wickremasinghe and others [1980] 1 Fundamental Rights* Decisions 143, 161
Probhudas Morajee Rajkotia and others AIR 1974 SC 1300
State of Gujarat and another v. Shri Ambica Mills AIR 1974 SC 1300, 1312. 1313,paras 52, 53
State ol Bombay v. F.N. Baiasara AIR 1951 SC 318, 326
Ram Krishana Dalmia v. Justice Tendolkar 1958 SC 538, 548
Ganaga Ram v. Union ol India AIR 1970 SC 2178, 2179
Harakchand et al. v. Union ol India AIR 1970 SC 1453, 1467
Patched v. Leathern (1949) 65 TLR 69, 70
Dhirendra Kumar Mandat v. Superintendent and Remembrancer of Legal AffairsSCR (1954) 1 SCR 224
Perera v. University Grants Commission (1980) 1 Fundamental Rights Decisions103, 114
P.S.U.N. Union v. Minister of Public Administration [1988] 1 Sri LR 229, 238
Dayawathie and others v. Dr. M. Fernando and others [1988] 1 Sri LR 371, 372
Jammu and Kashmir v. Triloki Nath Khosa and others AIR 1974 1 SC 1, 11
Budhan Choudhry and others v. State of Bihar AIR 1955 SC 191
Jalan Trading Co. v. Mill Mazdoor Sabha AIR 1967 SC 691, 705
State of West Bengal v. Anwar AH AIR 1952 SC 75. 79, 83, 85, 86, 88. 93. §8,99, 100, 102
Reserve Bank of India v. Sahesranama AIR 1986 SC 1830
Union of India v. Soundara Rajan AIR T980 SC 959
State of Mysore v. Narasinghe Rao AIR 1968 SC 349
Union of India v. Dr. Itfrs. Kohli AIR 1973 SC 811
Pandurangarao v. The Andhra Pradesh Public Service Commission, Hyderabadand another AIR 1963 SC 268
Jaisinghani v. Union of India AIR 1967 SC 1427, 1431
Rajendran v. Union of India AIR 1968 SC 507, 511
Samarasinghe v. Bank of Ceylon (1980) 1 Fundamental Rights Decisions 165,171 ■ 172
Katra Education Society Allahabad v. Stale of U.P. AIR 1966 SC 1307, 1312
Andhra Industrial Works v. Chief Controller of Imports and others AIR 1974 SC1539, 1541
Western U.P. Electric Power and Supply Co. Ltd. v. State of U.P. and others AIR1970 SC 21, 24
APPLICATION under Article 126 of the Constitution complaining of infringement of thefundamental right of equality.
SC Weligodapola v. Secretary, Ministry oi Women's Affairs (Amerasinghe, J.)
65
R.K.W. Gunasekera with Gomin Dayasiri for petitioner
K.M.P. Karunaratne S.S.C with N. Kariapperuma SC for 1,2,3 and 5 respondents.
Cur. adv. vult.
March 31, 1989.
AMERASINGHE, J.
This is an application under Article 126 of the Constitution in whichthe Petitioner prays for an order declaring that his rights to equalitybefore the law and equal protection of the law guaranteed by Article12 (1) of the Constitution have been violated. The essence of thePetitioner's complaint is that in the matter of employment as an ENTSurgeon he has been denied an equality of opportunity anddiscriminated against.
The Petitioner passed the Bachelor of Medicine and Bachelor ofSurgery (M.B..B.S.) Examination in 1971 and thereafter, incompliance with the provisions of the Compulsory Public Service ActNo. 70 of 1961, served in the Department of Health in various placesand in various capacities until 21 September 1976 when he assumedduties as House Officer ENT of the General Hospital in Kandy. Heserved in that capacity until 21 March 1978 when he resigned fromthe D&partment of Health to enable him to proceed to the UnitedKingdom to obtain specialist qualifications. In the United Kingdom thePetitioner qualified himself to obtain the Diploma in Laryngology andOtology from the Royal College of Physicians and the Royal Collegeof Surgeons [D.L.O.(Eng.)] on 13 November 1980; and havingcompleted the required form of training and passing the necessaryexaminations in Otolaryngology, he qualified himself on 23rd March1983 to be admitted to the Fellowship of the Royal College ofSurgeons of Edinburgh [F.R.C.S.(Edin.)]. During his period of traininghe was, at various times in several hospitals, Senior House Officer inENT, Senior House Officer in General Surgery, Registrar ENT andAssociate Clinical Specialist (Clinical Assistant).
When the Petitioner proceeded to the United Kingdom to obtainfurther qualifications, the Consultant ENT Surgeon under whom hehad worked as a House Officer, Dr. S. Mahendran, M.B.B.S.,F.R.C.S.; in a letter dated 11 April 1978 (P 21), recommended thatthe Petitioner be given "all assistance and further training to enablehim to realise his ambition and return to this land where ENT
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Surgeons are the rarest species of doctors now.”
The Petitioner having realized his ambition of obtaining thequalifications and training he sought, returned to Sri Lanka in May1983 to explore the possibility of offering his recently acquired skillsas an ENT Surgeon to Sri Lanka. He met Dr. Joe Fernando, theAdditional Deputy Director of Medical Services, who said that thepost of ENT Surgeon in the Gatle General Hospital was vacant. ThePetitioner was offered the post of Resident ENT Surgeon, Galle, on 'a temporary basis but on the salary scale of a Specialist as laid downby General Circular No. 1208 (III) of the Ministry of Health. (P3), on25 May 1983(P2). According to the Petitioner he had been assuredby Dr. Joe Fernando that the post of ENT Surgeon, Galle GeneralHospital, would be advertised after the Petitioner reported for duty atthe General Hospital, Galle.
The Petitioner then returned to England, terminated his permanentemployment as Associate Clinical Specialist at Colindale Hospital andbrought his family back to Sri Lanka. He reported for work at GalleHospital on 15 June 1983. On 18 June 1983 he wrote to the Directorof Health Services through the Medical Superintendent of Galle (P4)requesting him to advertise the Post of Consultant ENT Surgeon .inorder to enable him to apply “and formally make the appointmenteffective as you agreed at my interview with you prior, to myemployment.” There was no reply to this letter.
On 15 July 1983 the Director of the Post-Graduate Institute ofMedicine wrote to the Director of Health Services (P5) stating that ithad been brought to the notice of the Otolaryngology Board of Studymeeting that the Department of Health Services had employed thePetitioner and two others as ENT Surgeons. The Director goes on tostate as follows:- "It appears that these doctors have proceeded tothe United Kingdom on their own and obtained the qualifications
R.C.S.(Ehg.) after 1.1.80. These appointments are contrary to thedecision that qualifications obtained by doctors on their own (withoutthe Department sending them) are not to be recognized as specialistsqualifications. The qualifications to be recognized are the MS and MDgiven by the Post-Graduate Institute of Medicine.
The Board of Study in Otolaryngology has stated that if the threedoctors wish recognition as ENT Specialists they should obtain theMS (ENT) offered by the Post-Graduate Institute of Medicine and fulfilthe other requirements of the Board of Study.
SC Wefigodapofa v. Secretary, Ministry of Women's Affairs (Amerasinghe, J.)67 _
As this is bound to happen in other disciplines too, I would begrateful if you could kindly let me know the policy decision on thismatter so that I could convey same to the Board of Studies.''
•
The Petitioner on i26 November 198? (P6) wrote to theGovernment Medical Officers' Association (GMOA) appealing to it totake.the matter up with the Director of Health Services and persuadehim to advertise the post. On 4 January 1984 the Secretary of theGMOA wrote to the Director of Health Services (P7) stating that theGMOA had considered the Petitioner’s case "in detail” and "wouldlike to recommend that he be posted for 2 years to Galle initially ona permanent basis and "(sic.)" Post advertised at the end of 2 yearsso that this Post will be available if any officer has come back to theisfand after completion of his/her period of no pay leave.”
On 20 January 1984 the Director of Health Services replied (P8)stating that the ENT Specialist Post at the General Hospital Galle"cannot be advertised for 04 years from the . date of temporaryappointment."
Having interviewed the Secretary to the Ministry of Women’sAffairs and Teaching Hospitals, the Petitioner wrote to the Secretaryon 26 July 1984 (P9) stating as follows:- "At the interview you agreedthat I possessed full qualifications for appointment as a Consultantarad that M.S. Part II whs not a requirement in my case as I joinedthe Department with full; Specialist Qualifications before the local M.S.Examination in E.N.T. has been held. I would be thankful if you wouldnow consider advertising the post at an early date.”
On 11 December 1986 the Petitioner wrote to the Director Generalof the Ministry of Women’s Affairs and Teaching Hospitals (P10)stating that he had "Faithfully served the Government of Sri Lankaduring the last 3 1/2 years with the belief that the post in Galle woulube advertised." He went on to state as follows:
“I was made to understand by the relevant authorities in theMinistry of Women’s Affairs and Teaching Hospitals that in my caseit was not necessary to have board certification to obtain permanentemployment as I joined the Department on permanent basis as a fullyqualified specialist before the first MS Part II Examination in ENT washeld by the PGIM.
I must respectfully submit that I am distressed and disillusionedbecause the post was not advertised as agreed to at my discussions.
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In view of this situation the reorganization and efficient managementof the ENT Department is hampered.
I should also iike to submit that when I gave up my permanentappointment in U.K., I made that decision in the belief that I could'serve my country better by returning home. The present situation hasresulted in my losing a very lucrative post in England “(sic)” havingan uncertain future here."
On 20 March 1987 the Petitioner wrote to the Director General,Teaching Hospitals (P11), referring to the letter of the Director ofHealth Services of 20 January 1984 (P8) stating that the Post couldnot be advertised for four years from the date of temporaryappointment. The Petitioner pointed out that, since his appointmentwas on 25 May 1983, he was expecting the Post to be advertised on25 May 1987 to enable him to apply.
On 3 November 1987 the Post of ENT Surgeon, General HospitalGalle, was advertised. The Petitioner passed the MS (ENT) Part IIExamination held on 13 November 1987 and on 27 November 1987applied for the Post which had been advertised and requested thatthe requirement of Board Certification be waived in his case in viewof his qualifications and experience, the fact that the question ofpassing the M.S. Examination had not been communicated to himuntil 11 December 1986 and because the first opportunity he had tosit the M.S. Examination was in November 1987.
On December 16, 1987 the Director of health Services wrote to thePetitioner (P16) transferring him to the General Hospital Colombo asAssistant Surgeon ENT with effect from 16 January 1988. Inparagraph 33 of his Petition, the Petitioner states that by transferringhim to Colombo as Assistant Surgeon he had been “penalised forsitting and passing the MS (ENT) Examination of the PGIM." Headds that he had for four-and-a-half years been the SpecialistSurgeon (ENT) at the General Hospital, Galle (Teaching), and inwhich capacity he had been a Lecturer and Examiner in ENT at theMedical Faculty, Ruhuna, and was now “demoted as a PGIM traineefor 2 1/2 years.”
The First, Second and Third Respondents deny this, and in theiraffidavits state that the Petitioner was transferred to complete thetraining required for Board Certification by the Board of Study and notas a punishment. The Second Respondent in paragraph 16 of his
SC Weligodapola v. Secretary, Ministry ol Women's Affairs (Amerasinghe, J.)69
Affidavit explains that the transfer to Colombo was because "thistraining was not available in Galle.”
On 8 January 1988 the Petitioner filed papers in the SupremeCourt alleging the violation of his fundamental rights under Article12(1) of the Constitution and, among other reliefs, praying for aninterim order preventing his transfer from the Galle Hospital to theGeneral Hospital Colombo as Assistant Surgeon (ENT) and for aninterim order staying the appointment of the Fourth Respondentpending the disposal of this application. The interim orders prayed forwere granted on 12 January 1988.
Although on 18 January 1988 the Director of the Post GraduateInstitute of Medicine (PGIM) had informed the Petitioner that heshould serve a post-MS training period of 2 1/2 years (3R2), yet on1 February 1989 the Director of PGIM informed the Petitioner (X) thatthis period had been reduced to two years and that this period wouldbe reckoned from 13 November 1987 – the date he passed the MSPart II Examination. He was to continue the remaining year of trainingin Galle itself' “supervised from time to time by Consultant ENT.Surgeons from Kandy and from Colombo."
The career misfortunes of the Petitioner are inextricably linked withthe happier events in the professional affairs of the FourthRespondent, culminating in his appointment to the post of ENTSurgeon of Galle which the Petitioner eagerly desired to have. As ifthat w§re not enough, the PGIM by its letter of 1 October 1987 to theDirector of Teaching Hospitals (2RIC) retrospectively dated the BoardCertification of the Fourth Respondent to 10 March 1986, whereas hewas, according to the PGIM’s letter of 23 September 1987 to theDirector of the Teaching Hospitals (2RIB), Board Certified on 18September 1987.
The Petitioner declares and affirms in paragraph 34 of his Affidavitdated 7 January 1988 that the appointment of the Fourth Respondentin preference to him was “unjust and discriminatory,” among otherreasons, because he is “more qualified and more experienced” thanthe Fourth Respondent and because in terms of Circular No. 923 of
(P17), under which the appointment was made, he had“more points" than the Fourth Respondent. He goes on to allege inParagraph 34(t) of his affidavit that “the post if not advertised earliershould have been advertised at the latest in May 1987 and it wasdeliberately delayed until November 1987 to coincide with Board
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Certification given" to the Fourth Respondent. This, he claims, "wasan action of purposeful discrimination by the 1st – 3rd Respondentsto favour the Fourth Respondent.^' In paragraph 35 of his Affidavit thePetitioner repeats his assertion that there had been a “purposefuland hostile discrimination" against him by the First, Second andThird Respondents in the matter of the appointment of the FourthRespondent to the post.
Counsel for the Petitioner did not press the claim that there was apurposeful discrimination by the First, Second and ThirdRespondents. He rested his case on the ground that discriminationarose out of the Circular itself, denying, as he said it did, his rights toemployment equally with others who were similarly qualified. In thesecircumstances it is not incumbent on the Petitioner, before he canclaim relief on the basis of the violation of his fundamental rights ofequality before the law and equal protection of the law, guaranteedby Article 12(1) of the Constitution, to assert and prove that theRespondents acted with “an evil eye and unequal hand", Yick Wo v.Hopkins (1) (Cf. State of West Bengal v. Anwar AH (2)). However,instruments of law which are discriminatory may, it seems, beregarded as “hostile” in the sense that they affect injuriously theinterests of a person or class. (Cf. per Mukherjea, J in State of WestBengal v. Anwar Ali (2).)
•
And since learned Counsel for the Petitioner depended entirelyupon the invalidity of the Circular itself, it is not necessary for. me toconsider the interesting submissions of learned Senior State Counselthat in order to show hostile discrimination there must be evidence ofsystematic, as distinguished from isolated, acts of discrimination if theRespondents had, as they claimed, acted in good faith. For the samereason it is also unnecessary for me to consider the effect of theRespondents acting in a discriminatory manner merely on account ofan error of judgment or arbitrariness. The Petitioner claims that theCircular was ultra vires because it violated the Constitution. He doesnot merely complain of a discriminatory application of a valid Circular.
If he had accepted the validity of the Circular, the reliefs he mighthave prayed for would, perhaps, been of a different nature. I am notcalled upon by the Petition or by the submissions of learned Counselin this case to consider the appropriateness of other reliefs – adifficult matter upon which more than one opinion seems to havebeen expressed. (E.g. Elmore Perera v. Montague Jayawickrema (3))-
SC Weligodapola v. Secretary, Ministry ol Women's Affairs (Amerasinghe, J.)77
Senior State Counsel for the Respondents maintained that the onlyreason why the Petitioner was not appointed was that he lacked thenecessary qualifications to be appointed to the post of permanentENT Surgeon. This is difficult to understand. Firstly, according to hisLetter of Appointment (P2) the Petitioner was paid a salary which interms of Ministry of Health General Circular No 1208 (III) of 26 April1982 (P3) was payable to a "fully qualified specialist.” Secondly, ifhe was appointed as Resident ENT Surgeon because of the Urgentneed to have an ENT Surgeon in Galle, he could not have been soappointed, even temporarily, unless he was fully qualified, for ChapterII, l:7 of the Establishments Code of the Government required that"only a person eligible under the approved.Scheme of Recruitmentshould be considered.” Thirdly, he performed the duties andfunctions of a specialist ENT Surgeon for 4 1/2 years and functionedas a Lecturer and Examiner at Ruhuna during that time. Fourthly, heheld foreign specialist qualifications (D.L.O..F.R.C.S) which, thePetitioner states in his Affidavit of 19 August 1988, entitled Dr. A.C.Wijesurendra, F.R.C.S., Dr. R. Pathmanathan, F.R.C.S., Dr. NeilHalpe, F.R.C.S., Dr. D.S. Rajapakse, M.R.C.O.G., Dr. M.R.Badudeen, F.R.C.S., and Dr. D.G.M. Solangaarachchi, F.R.C:S., toappointments as permanent specialists. ,
The Second Respondent in his Affidavit dated 5 October 1988states that Dr. Solangaarachchi was not in fact given a permanent,specialist appointment "on the same grounds as in the case of thePetitioner.” What these grounds arfe, are not stated in that Affidavit.
As for the other appointments, the Second Respondent in hisAffidavit of 5 October 1988 explains that the appointments weremade by the Ministry of Health and not by the Ministry of TeachingHospitals. Which Ministry of the Government made the appointmentsis quite irrelevant: Does it matter whether the right hand of the Stateor its left signed their letters of appointments? Moreover Paragraph 8of the Circular clearly contemplates appointments .to all "posts ofspecialists in the Department including" those in Teaching Hospitals.Learned Senior State Counsel said that appointments to TeachingHospitals were“ made on the basis of a more careful selection ofapplicants. He was, however, unable to (explain why the Circular itselfrecognized foreign qualifications as adequate or how the Petitionercame to be appointed even on a ^temporary basis, why he was paidthe salary of a fully qualified specialist and how he had been calledupon to perform the duties and functions of an ENT Specialist,
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Lecturer and Examiner if his specialist qualifications were notadequate. I have no hesitation in rejecting the assertion of the FirstRespondent in Paragraph 22 of his Affidavit dated 19 February 1988,trfat of the Second Respondent in paragraph 20(b) of his Affidavitdated 22 July 1988 and that of the Third Respondent in Paragraph18(a) of his Affidavit dated 10 February 1988 that the Petitioner wasnot appointed for want of qualifications.
In his. Affidavit dated 5 October 1988 the Second Respondentexplains that the other doctors, mentioned in the Petitioner’s Affidavitof 19 August 1988, with foreign qualifications who were givenpermanent specialist employment had been taken “after theyappealed to the Public Service Commission." No evidence wacplaced before us as to what the grounds of the appeal were. But weare entitled to assume that they would have been regarded aspossessing adequate qualifications in terms of the Scheme ofRecruitment. The maxim' omnia praesumuntur rite esse acta appliedand we are entitled to assume that official acts have been properlyperformed. (Cf. Elmore Perera v. Major Montague 'ayawickrema).(3)
Other categories of eligible specialists are set out in the Circular.The Circular bears the caption “Post-Graduate Institute of Medicine'and goes on to state that the Government has made the decisionsset out in the Circular. It states that “no Foreign PrimaryExaminations will be held in Sri Lanka after 1.1.1980”. Post GraduateExaminations of the Institute, it says, were to be held from 1980leading to the M.D. or M.S. degrees in the respective specialities. Itthen sets out the fields in which Boards of Study had been set upand states that the information with regard to examinations would benotified from time to time.
The Circular then states as follows:
Tnose Medicai Officers who have passed Primary Part I offoreign Examinations will be permitted to go abroad on no-pay leave to complete the final examinations on a phasedprogramme.
Medical Officers who have the Foreign Primary Part Iexamination could sit the final examinations of the Institute,provided they have the requisite training and will onsuccessful completion of the examination be foundassignments for further training up to one year in sefected
SC Weligodapola v. Secretary, Ministry of Women's Affairs (Amerasinghe, J.)
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institutions abroad, by the Ministry.
Officers who have obtained full qualifications abroad andhave overstayed their periods of leave abroad, will be entitleto have their qualifications recognised for appointments toposts of Specialists in the Department' of Health, providedthey return to the Island before 1.1.1980.
Medical Officers who have been sent abroad by theDepartment on no-pay study leave will be entitled to havetheir qualifications recognised for appointment for posts ofSpecialists in the Department, provided they return within thestipulated period of leave.
Subject to (6) and (7) above, with effect from 01.01.80,qualifications of the local Post-Graduate Institute of Medicinewill be given definite preference in appointments to the postsof Specialists in the – Department, including TeachingHospitals.”
Having regard to the material placed before us, it would seem that,
in practice, the following classes of persdns have been considered
eligible and, therefore, appointed to specialist posts:
Medical Officers who resigned from Government Service toproceed to England to obtain the full foreign specialistqualifications and decide to rejoin the Department immediatelyafter obtaining such qualifications in terms of the Minute inRegard to Medical Personnel of the Health Services. (P1).
Officers who had ceased to be in Government Service, havingvacated their posts by over-staying the leave granted but whoReturned to the country with full foreign specialist qualificationsbefore 1 January 1980 in terms of paragraph (6) of the Circular.
Officers who had been sent by the Department and returned tothe country within the period of leave granted having obtained fullforeign specialist qualifications.
Officers who obtained full foreign specialist qualifications providedthe Public Service Commission ordered that they be appointed.
Officers who obtained full foreign specialist qualifications providedthat the Ministry of Health and not the Ministry of TeachingHospitals made the appointment.
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Graduates of the Post-Graduate Institute of Medicine who hadcompleted the prescribed course of training and obtained BoardCertification.
•
The Petitioner complains that although he belonged to category (1),he was not appointed, the Fourth Respondent being preferred to him.The Respondents maintained that in terms of Paragraph (8) of theCircular, they were bound to give preference to the FourthRespondent since he was a PGIM Graduate. The Petitionercomplains that this differential treatment on the basis of theclassification in the Circular makes it discriminatory and violatesArticle 12(1) of the Constitution.
Article 12(1) of the Constitution declares that “All persons areequal before the law and are entitled to the equal protection of thelaw.” Undoubtedly, on the face of it, the classification in the circulardiscriminates against the petitioner. Indeed every classificationdiscriminates between persons and things. The very concept ofclassification is that of inequality. Yet, unless classification ispermitted, injustice is bound to take place, for it would result inunequals being treated equally.
It would also inevitably lead to the objects of good Governmentbeing defeated. If, for instance, the Government wishes to give thepeople an efficient medical service, then it is inevitable that it shouldappoint persons who have the relevant academic qualifications andexperience as doctors. It would be strange if someone who did nothave such qualifications and experience were to be appointed as aSurgeon on the basis that “all persons are equal before the law". Itwould subvert the object of Government to provide an efficientmedical service, for rather than save lives, such a course of actionwould necessarily result in mass murder.
The Courts have evolved a solution to this paradoxical situation ofhonouring constitutional pledge of equality and at the same timerecognizing the need to classify. The solution is this. The lawrecognizes that the principle of equality does not mean that every lawmust have universal application for all persons who are not, bynature, attainment or circumstances, in the same position. What isrequired is that persons who by nature, attainment or circumstancesare similar, are treated alike. If there is a classification which dealsalike with those who are similarly situated, someone who is different
SC Weligodapola v. Secretary, Ministry of Women's Affairs (Amerasinghe, J.)75
cannot be allowed to complain that he has not been treated equally,for being different, he must necessarily expect to be treateddifferently. Our Supreme Court has recognized this position in severalcases (E.g. see Palihawadana v. Attorney-General, (4); Yasapala v.RaniI Wickramasinghe and Others,. (5); Elmore Perera v. MajorMontague Jayawickrama,(3). Several decisions of the IndianSupreme Court which were cited by Counsel also support thisposition. (E.g. see Probhudas Morajee Rajkotia. and Others v. Unionof India,(6); State of Gujarat and another v. Shri Arribica Mills,(7).Jndeed, these principles were recognized by the Indian SupremeCourt a very long time before the decisions cited to us.(E.g. seeState of Bombay v. F.N.Balsara,(8).
In exercising its right to make distinctions between persons, I donot think that the State wastes its precious and limited energies inmaking them without a purpose. When the State makes distinctions,
I therefore take it that it does so correctly appreciating the needs ofour people and having regard to its experience, with a view toachieving something desirable because it is good for our people.(See State of Bombay v. F.N. Balsara,(8); Ram Krishna Dalmia v.Justice Tendolkar,(9): Ganga Ram v. Union of India,(10).
While I take it for granted at the beginning that the State had apurpose for making the distinctions it did, I. must find out what thepurpose was, for if the classification had no connection with that goodpurpose, then, surely, I cannot say that that classification was madeto achieve that purpose. (Cf. per Ramaswami, J. in Harakchand et at.v. Union of India,(11)).
In trying to find out what purpose the State had in mind whenmaking a classification, I ought to consider “Prior Law” (Cf. perRamaswami, J. in Harakchand et al. v. Union of India,(11)). Thisincludes legislation by Government Circulars and notifications,H.W.R.Wade, Administrative Law, 5th Edn. at pp. 745-7, even thoughthey be, as described and explained by Justice Streatfield in Patchedv.'Leathern,(12), “to be at least four times cursed” in comparisonwith legislation passed by Parliament. (Cf. Dhirendra Kumar Mandalv. Superintendent and Remembrancer of Legal Affairs,(13)). And so,
I should consider the Minute in Regard to Medical Practitioners of theHealth Services (P1). In finding the end, I must also look atstatements of objects and reasons, matters of common knowledge,matters of common report and the history of the times in trying to find
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aut what was the purpose of the classification. (Cf. per Das, C.J. inRam Krishna Dalmia v. Justice Tendolkar,(9)), AIR 1958 S.C. 538 atp. 543 para. 12 and K.K. Mathew in Democracy, Equality andFreedom, Eastern Book Co., 1978, at p. 217 fin. – 218.
In trying to find out what the purpose of the Circular was, I haveconsidered :
the circular in question (P12 and Pi7);
theMinute inRegard to MedicalPersonnel of the Medical
Services (PI), upon which Counsel for the Petitioner laid muchreliance, and which Counsel for the Respondents did not suggestwas irrelevant or inoperative;
thestatement of Dr. S. Mahendran,M.B.,B.S., F.R.C.S. in his
letter referredto earlier (P21) inwhichhe describes ENT
Surgeons as "the rarest of species now”;
theletters ofthe Government MedicalOfficers’ Association
(GMOA) dated 4 January 1984 (P7) and 19 November 1987(2R2);
the letter of the Director of Health Services dated 20 January1984 (P8) in response to the letter of the GMOA dated04.01.1984 (P7);
the several affidavits of the Petitioner and Respondents;
the Hand Book and Prospectus 1987 of the Post-GraduateInstitute of Medicine;
the oral and written submissions of Counsel for the Petitioner andthe represented-Respondents on this matter.
What then was the context in which the Circular was formulated?What was the general good sought to be achieved or the harm soughtto be eliminated? The Hand Book and Prospectus 1987 of the Post-Graduate Institute of Medicine provides the following information:
"Medical education in Sri Lanka started in 1870 with theestablishment of the Ceylon Medical College which after 7 decades,was converted to the Faculty of Medicine in 1942 when the Universityof Ceylon was established.
Until 1952 no Post-Graduate Medical Examinations were conductedby the University of Ceylon. For the first time examinations for thedegrees of MD and MOG were conducted in 1952. The examinationfor the degree of MS was started in the following year.
There was no organized teaching or training of any kind. The training
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in the specialities of Medicine at post-graduate level had to be dogein the U.K. and the diploma such as MRCP, FRCS, etc. of the U.K.Colleges were recognized for consultant appointments.
The Advisory Committee on Post-Graduate Medical Education,recommended to the Government in 1973 that a supervised in-service training period of 3 years followed by an examination shouldreplace the existing scheme of training abroad. Accordingly theInstitute of Post-Graduate Medicine (IPM); was established in 1976under the provisions of the University of Ceylon Act No. 1 of 1976and was attached to the University of Colombo. The Institute of Post-Graduate Medicine was formally inaugurated on 2nd March 1976 byDr. Halfdan Mahler, the Director General of the WHO.
However, the work of the newly set up Institute' was handicappedbecause various examinations of the U.K. Colleges continued to beconducted in Colombo and the doctors preferred these to theexaminations of the Institute. Therefore, a review of the work of theInstitute became necessary. At the same time the Government alsodecided to stop holding foreign examinations in Sri Lanka and togrant full recognition and preference to the post-graduate degrees ofthe Institute with effect from 1 January, 1980.
In order to achieve the objectives of the Institute, the Institute was re-established in 1979 under the provisions of the Universities Act No.16 of .1978 and was re-named the Post-graduate Institute of Medicine(PGIM). Accordingly PGIM Ordinance No. 1 of 1980 made under theprovisions of the Universities Act referred to above came into forceon 10th April, 1980. The Boards of Study for various specialities inMedicine were reorganised and the courses of instruction andexamination were arranged for the different specialities.”
Learned Counsel for the Petitioner maintained that the “positivepublic good” to be achieved was the provision of a more efficienthealth service in Sri Lanka. The harm sought to be avoided; aslearned Senior State Counsel claimed, was the “brain drain”. Thesepurposes were, it seems to me, two sides of the same coin.
Learned Senior State Counsel in his written submissions statesthat the impugned Circular "was brogght into operation at a timewhen large numbers of medical personnel were leaving the countryand it was purely intended to retain these medical personnel and alsoto offer them an opportunity to obtain further qualifications locally."He further states that “In the instant case the object of the Circularis to retain the medical personnel from leaving the country and to
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Offer them an opportunity of obtaining higher education. The rationaleof the present classification is essential to retain those doctors whoare in service and to give a preference to them. The persons whoresigned from the Health Service must necessarily be classedseparately."
The migratory propensities of professional people, ever in search ofgreener pastures, has always been a disturbing factor. There havebeen various methods, legislative and otherwise, adopted byGovernment and its agencies to eliminate or mitigate the impact ofthat phenomenon which is popularly known as the “brain drain". Tfierequirement of compulsory public service for a stipulated period afterUniversity education prescribed by the Public Service Act No. 70 of1961 was one such device. If, as explained by learned Senior StateCounsel, the object of the Circular in question was to control theoutward flow of doctors, in the interest of public welfare, it is difficultto understand how the imposition of disabilities on those doctors likethe Petitioner, who were returning to the country to serve it could bejustified. If at all the Circular would have the effect of discouragingpeople who wished to return from doing so. It would undermine theobject of providing an efficient health service.
I am unable to agree^with learned Senior State Counsel that in thepursuit of its object to have an efficient medical service theGovernment was only concerned with those already in GovernmentService. What was the need to provide incentives to those who hadover-stayed their leave but returned before 1.1.80 if such personswere yet in Government Service? If they had over-stayed with theconsent of the authority granting leave, the date, 1.1.80, would beirrelevant, for the relevant date then would be that specified by theauthority granting leave. On the other hand if an officer had over-stayed his leave without permission, he would, in terms of theEstablishments Code, be deemed to have vacated his post.Paragraph 6 of the Circular in my view was directed at those personswho had vacated their posts and who had therefore ceased to be inGovernment Service. According to the argument of learned SeniorState Counsel the Government was prepared to take those who hadceased to be in Government Service by reason of the application otthe punitive measure of vacation of post but unwilling to take backthose who had honourably resigned. I do not think so.
The Minute in Regard to Medical Personnel of the Health Services
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published in the Ceylon Government Gazette No, 14.840 of February7 1969 (P1) clearly indicates that the Government hoped for andwelcomed the return of all doctors who had left the service. Part B ofthe Minute deals with the terms of employment to be offered to*“Medical Officers who join after obtaining full specialist qualificationsor after years of private practice". A category specially dealt with inthe Minute is one into which the Petitioner fits exactly, namely,category I. It refers to “Medical Officers who resign theirappointments to proceed to England and obtain any of the fullspecialist qualifications given in Appendix I which are accepted by theDepartment and decide to rejoin the Department immediately afterobtaining such qualifications.”
The differential attributes set out in the Circular do not bear arational nexus to the object of providing a more efficient healthservice by minimizing the brain drain and attracting qualifiedspecialists to undertake employment in Government Service. In thecircumstances, the classification in the Circular is violative of Article12(1) of the Constitution and must be held to be ultra vires theConstitution and therefore bad in law and of no force or avail. (Cf.Perera v. University Grants Commission, (14); P.S.U.N. Union v.Minister of Public Administration, (15); Dayawathie and Others v. Dr.M.Fernando and Others, (16); State of Jammu & Kashmir v. TriiokiNath Khosa and Others,' (17); Ram Krishna Dalmia v. Justice# S.R.Tendolkar, (9); Budhan Choudhry and Others v. State of Bihar,(18); Harakehand v. Union of India, (11); supra,, at p. 1467 perRamaswami, J. at para. 23; Jalan Trading Co. v. 'Mill MazdoorSabha, (19); State of West Bengal v. Anwar Ali, (20)).
If they were, as claimed by the Respondents, giving effect tosettled Government policy not to appoint foreign qualified specialists,
I am at a loss to understand:
why the Director of PGIM would need to write to the Directorof Health Services on 15 July 1983 (P5) asking the Directorto let him know "the policy decision on this matter";
how the Government Medical Officers Association, afterconsidering the case of the Petitioner "in detail”, found itpossible to recommend (P7) the appointment of thePetitioner as permanent ENT specialist for two years andthen on 19 November 1987 writing to the Fourth Respondent(2R2) that the GMOA had been assured by the Director-
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General, Teaching Hospitals, that the appointment would bemade “strictly on the criteria laid down in the Circular andnothing else”;
why the Director of Health Services in January 1984, inresponse to the request of the GMOA, held out a promisethat the post would be advertised “four years from the dateof temporary appointment" of the Petitioner instead of sayingthat the Petitioner was not qualified at all;
why the Ministry of Health (as distinguished from the Ministryof Teaching Hospitals) appointed foreign qualified specialists.
why the Public Services Commission directed theappointment of foreign qualified specialists.
I agree with the submission of learned Senior State Counsel thatthe concept of equality in the matter of employment or promotion canbe predicated only when the competing candidates are drawn fromthe same source. However, learned Senior State Counsel, citing thedecision in Reserve Bank of India and others v. G.N. Sahasranamanand others (21) and Union of India v. E.S. Soundara Rajan (22), alsosubmitted that "there cannot be a case of discrimination merelybecause fortuitous circumstances arising out of some peculiardevelopments or situations create advantages of disadvantages forone group or the other although in the earlier stages they were moreor less alike.”
The Reserve Bank case was concerned with certain AdministrativeCirculars of the Bank with regard to a scheme of promotion for ClassIII employees'of the Bank. The main question for determination waswhether a part of the scheme was violative of the constitutionalguarantee of equality before the law and of equal opportunity inpublic employment enshrined in the Constitution. The controversy inthe matter before the Court lay within a narrow area but, asSabayasachi Mukharji, J. observed (at p. 1839 para. 34) aspectswhich were "strictly. not germane to the present issue” were alsoexamined because it was urged that the controversy was “against avast compass".
I find no support for Learned Senior State Counsel's submission inThe Reserve Bank decision. The Headnote in the case says this: "Itis true that the chances of promotion in some areas occur more oftenin smaller centres than in other bigger centres like Bombay, Calcutta,Delhi but that is fortuitous and would not really affect the question
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and violate articles 14 and 16 of the Constitution.”
The chances of promotion were less in some places than in others.Where one happened to be serving at a given time was a fortuitouscircumstance and “would not really affect the question and violateArticles 14 and 16. The justice of the case should be judged inconjunction with other factors, the convenience, the future of thefamily etc.”, said Justice Sabayasachi Mirkharji at p. 1840 para. 40.The learned Judge, however, emphasised (at p. 1839 para. 39) thatthe “right of promotion should not be confused with the mere chanceof promotion. Though the right to be considered for promotion was acondition of service,vmere chances of promotion were not.”
In the matter before us, the issue is not the mere cnance otappointment but the right to be considered for employment. Thesubmission of learned Senior State Counsel in this regard arecouched in the words of Justice Krishna Iyer at p. 961 para. 4 in hisjudgment in the case of Union of India v. E.S. Soundra Rajan (22).The learned Judge went on to add in that case that “If one class hasnot been singled out for special treatment, the mere circumstance ofadvantages accruing to one or the other cannot result in breach ofArticle 14 of the Constitution.”.
In the case before us, the complaint is not that some accidentalcircumstances have placed the Petitioner at a disadvantage inrelation to others in the same class to which he belonged but that by,what Mathew J. in State of Gujarat v. Shri Ambica Mills (7),described as an “underinciusive” classification, the advantagesconferred on others who were similarly stituated in the same class,that is doctors obtaining foreign specialist qualifications, were notconferred on him. He complains that PGIM graduates are in terms ofthe Circular to be given preference not over all foreign qualifiedspecialists, but only over foreign qualified specialists who returned tothe countiy after 1 January 1980 or those who were appointed by thePublic Service Commission and those who were sent by the'Department to obtain the qualifications.
The Petitioner specifically complains that he was passed overneither because he lacked the appropriate foreign specialistqualifications nor because those foreign qualifications ~ wereinadequate to equip him for the tasks of an E.N.T. Surgeon but,
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curious as it may seem, because he had at his own expense and onhis own proceeded to the U.K. to obtain those qualifications in a fieldwhere specialists were rare, as Dr. Mahendran had said in his letter6f recommendation (P21) and at a time when appropriatequalifications could not be obtained from the PGIM or any other localinstitution. There was no mention of a Board of Study inOtolaryngology of PGIM in the impugned Circular nor in theOrdinance made by the University Grants Commission under Section140 read with Section 18 of the Universities Act No. 16 of 1978 andpublished in Gazette Extraordinary No. 83/7 of April 10, 1980 (P23),although, as we have seen, specialists in that field were described asa “rare species." The First M.S. (ENT) Examination, according toparagraph 10 of the Second Respondent’s Affidavit, was held inAugust 1983, that is, two months after he had returned to Sri Lankaand re-joined the service with full specialist qualifications (D.L.O.,F.R.C.S.). The Examination was subsequently held in September1984 and in November 1987. The Petitioner passed the M.S. (ENT)Examination of the Institute in 1987.
Despite the fact that the Petitioner possessed such full, specialistqualifications as those which, in the case of other doctors, had beenrecognised to be adequate by the impugned Circular, by the PublicService Commission, and by the Ministry of Health; and despite thecircumstances in which he was compelled to privately seek thosequalifications abroad, his professional attainments, sufficient thoughthey undoubtedly were for the discharge of his duties and functionsas an ENT Surgeon, did not entitle him to be appointed because hehad not been sent abroad by the Department to acquire the relevantknowledge and skills. So the second Respondent seems to say.
In Paragraph 9 of his Affidavit of 22 July 1988 the SecondRespondent states that “in terms of the General Circular Letter 1389of 20.9.1979 with effect from 01.01.1980 foreign specialistqualifications would be recognized provided those officers were sentabroad by the Department. The Petitioner was not sent by theDepartment to obtain foreign specialist qualifications.”
We do not know what "peculiar developments or situations" therewere at the time the Circular was formulated except that it coincidedwith the resuscitation of the Post-Graduate Institute of Medicine.
The State, as I have said before, is entitled to lay down conditions
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of efficiency and other qualifications for securing the best service*And when it does so, this Court will not, in my opinion, insist that theclassification is scientifically perfect and logically complete. (Cf. perDua, J. in Ganga Ram and others v. Union of India and others (10)).It may, for instance, confer advantages in matters of appointment,promotion or remuneration on the basis of educational qualifications.(E.g. see State of Mysore v. Narasingh Rao. (23) Union of India v. Dr.Mrs Kohli (24) State of Jammu & Kashmir, supra). Indeed in Dr. Mrs.Kohli’s case, as refined a classification as between an F.R.C.S inGeneral Surgery and an F.R.C.S in Orthopaedics was upheld inrelation to the appointment to the post of a professor ofOrthopaedics. (See per Alagiriswami, J. esp. at p. 813 para: 7).
Classifications may be refined but. they must, not be artificial andtherefore irrational. They cannot be upheld if they are, as presentedto us in this case, irrational. What has a date of return to the countryor the mode of proceeding to obtain the qualifications to do with theduties and functions to be performed? Moreover, such matters havenot, it seems, been considered to be relevant by the P.S.C. and theMinistry of Health in making appointments thereby recognising thefact that the micro-distinctions sought to be made by the Circular arenot substantial in that they have no relation to the duties andfunctions to be performed by the persons preferred in relation toothers’similarly qualified. If the distinctions that are made are notqualitatively substantial, they must be regarded as unacceptable.This, I think, is what was decided by Krishna Iyer, J. at p. 4 para. 5and by Justice Charidrachud, J. at P. 11 para. 37 in their decisionsin The State of Jammu v. Triloki Nath Khosa and others, (supra).
Having upheld the classification based on variant educationalqualifications in the case before him, Justice Chandrachud in Kosha'scase says at p. 16 para. 56 that it was hoped "that this judgment willnot be construed as a charter for making minute and microscopicclassifications. Excellence is, or ought to be, the goal of all goodgovernment and excellence and equality are not friendly bed-fellows.A pragrmatic approach has therefore to be adopted in order toharmonize the requirement of publicjservices with the aspirations ofpublic servants. But let us not evolve, through imperceptibleextensions, a theory of classification which may subvert,'perhapssubmerge the precious guarantee of equality. The eminent spirit of anideal society is equality and so we must not be left to ask. in
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wonderment: What after all is the operational residue of equality andequal opportunity?"
Is the classification in the Circular founded on "substantialdifferences" which distinguish doctors grouped together from thoseleft out? The Circular does not suggest that a person will beappointed as a specialist only if he passes the M.S. and M.D.examination of the PGIM and serves a prescribed period of trainingand obtains Board Certification. Nor does it suggest that the basis forpreferring a person so qualified to a doctor who has obtained foreignspecialist qualifications is the superiority or greater relevance to localconditions of PGIM examinations and training. A preference based onsuch reasoning would have been unquestionable, for excellence, asJustice Chandrachud said in Khosa's case, (supra), "is or ought tobe the goal of good government." Moreover, in those circumstancesa foreign qualified specialist not possessing the PGIM qualificationscould not have claimed equal treatment, being inferior and unequal.
The Circular, however, clearly recognises the equal suitability ofboth PGIM and foreign qualified doctors for appointment to specialistsposts. In paragraph 5 it envisages continuing education abroad.Indeed, it would appear from the letter of the Director of PGIM dated21 April 1987 to the Second Respondent (2RIA) that the Fourth ‘Respondent had been sent to.the United Kingdom on two yearsleave with full pay after passing his PGIM examination. In terms ofparagraph 7 of the Circular read with paragraph 8 thereof, a personwho obtains foreign specialist qualifications will not be placed in aninferior position in relation to a PGIM graduate if he is sent abroad bythe Department and within the stipulated period of leave. Nor will hebe passed over in favour of a PGIM graduate if he had returned toSri Lanka before 1 January 1980.
What has the arbitrarily fixed date of return to do with the dutiesthe Petitioner or others like him were called upon to perform as ENTSurgeons or as other medical specialists? How is one’s competenceto act as a medical specialist affected by the fact that he acquired hisskills at the expense of the taxpayer or with the benediction of theHealth Department? Discriminatory conditions and qualifications foremployment must be related to the duties to be performed. Otherwisethey must be regarded as insubstantial, arbitrary, fortuitous andartificial and therefore, irrational and unjustly discriminatory. (See J.Pandurangarao et. al. v. The Andhra Pradesh Public Service
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Commissioner, Hyderabad, and another (25), (Cf. per Ramaswami,
J.in Jaisinghami v. Union of India (26), C.A. Rajendren v. Union ofIndia, A.I.R. 1968 S.C. 507 at p. 511 (27)). The classification whichdistinguishes doctors with foreign qualifications who returned to thecountry before 1 January 1980 and those sent by the Departmentfrom others who obtained similar foreign qualifications for the purposeof deciding whether they should be equally recognized with PG1Mgraduates in the matter of appointment is not a classification foundedon an intelligible differentia and therefore, in my view, violates thepledge of equality given in Article 12(1) of the Constitution and mustbe declared to be ultra vires the Constitution and therefore bad andof no force or avail. (Cf. Perera v. University Grants Comrhission;(14); Samarasinghe v. Bank of Ceylon, (28); P.S.U.N. Union v.Minister of Public Administration (15); Dayawathie and others v. Dr.M. Fernando and others (16); Ram Krishna Dalmia v. JusticeTendolkar (9); Budhan Choudhry and others v. State of Bihar, (18);Harakchand et. at. v. Union of India, (1), Jalan Trading Co. v. MillMazdoor Sabha (19); State of West Bengal v. Anwar Ali (20).
This is not a case like that of Elmore Perera v. Major MontagueJayawickrema (3), where the- majority of the Court agreed with thefinding of Chief Justice Sharvananda (at p. 300 – 301). that thePetitioner had failed to prove that others similarly placed had beentreated differently. There was no “unequal, selective or discriminatorytreatment” in that case.
The Petitioner states in paragraph 34(1) of his petition that CircularLetter No. 1089 dated 20.9.1979 (P12) (which is in the same termsas P19 and which I have referred to as the ‘Circular’) wasdiscriminatory and violative of Article 12(1) of the Constitution andbeing ultra vires could not be the legitimate basis for the preferenceof the Fourth Respondent in relation to the Petitioner. Learned SeniorState Counsel, however, suggested that Article 12(1) merelyrecognized that all persons are equal before the law and declaredthem entitled to the equal protection of the law. True enough Article12 of the Constitution does not, as the Indian Constitution does inArticle 14, specially mention, the right of equality of opportunity for-allcitizens in matters relating to employment or appointment to anyoffice under the State Or to promotion from one office to a higheroffice. But those rights are necessary incidents of the application ofthe concept of equality enshrined in Article 12 of our Constitution. (Cf.
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per Ramaswami, J. in Jaisinghani v. Union of India (26); perRamaswami, J. in C.A. Rajendran v. Union of India. (27)).
Learned Senior State Counsel submitted that the Petitioner was notentitled to relief since the Petition was vague. I agree that a claim ofunlawful discrimination cannot be adjudged unless the petitioncontains a full averment of the grounds on which equality is claimedand the denial of equality is pleaded as not being based on a rationalrelation to the object sought to be achieved. (Cf. Perera v. UniversityGrants Commission (14), Samarasighe v. Bank of Ceylon (28);Elmore Perera v. Major Montague Jayawickrema (3) L.R. 285 at pp.298 – 299 per Sharvananda, C.J., Cf. also Katra Education Society,Allahabad v. State of U.P. (29). However, I am satisfied that thePetitioner in this case adequately satisfied the requirements of lawrelating to this matter.
Learned Senior State Counsel reminded us that the ojhiis of proofwas on the Petitioner to establish that his fundamental rights hadbeen violated. (Cf. Andhra Industrial Works v. Chief Controller ofImports and. others (30) 1541 para. 10; Jalan Trading Co. v. Mill-Mazdoor Sabha (19). I have in my judgment explained why, in myopinion, the Petitioner has sufficiently discharged the burden uponhim. He has satisfied the test that as between persons similarlycircumstanced, some (including himself) were unreasonably treatedto their prejudice and that the differential treatment had no rationalrelation to the object sought to be achieved. (Cf. per Shah J. inWestern U.P. Electric Power and Supply Co. Ltd. v. State of U.P.and Others (31).
This case was unlike Samarasinghe v. Bank of Ceylon, (28) whereWeeraratne, J. found (see p. 173) that the Petitioner had failed toplace “any cogent and convincing evidence to establishdiscrimination.”
For the reasons set out in my judgment, I make the followingdeclarations and orders:
(.1) I declare that General Circular No. 1089 of 20 September.1979 arid General Circular Letter No. 1389 of 20 September1979 Issued by the Ministry of Health violate'the provisionsof Article 12(1) of the Constitution and being , ultra vires theConstitution, they are, therefore, invalid in law'.'
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I further declare that the Petitioner’s right to equal protectionof the law pledged by Article 12(1) of the Constitution hasbeen violated in that he has been denied an equality ofopportunity to be appointed to the post of ENT Surgeon,Galle.
I confirm the Order of this Court dated 12 January 1988staying the appointment of the Fourth. Respondent as ENTSurgeon, Galle, unless and until the. direction in the nextsucceeding paragraph are complied, with.
' I direct the First, Second and Third Respondents or their
successors in office to advertise the Post of ENT Surgeon,Galle, within three months of the date of this decision and Ifurther direct that an appointment be made to the said postof ENT Surgeon, Galle, taking due account of. sucheducational and other qualifications of the applicants asr arerelevant to the duties and functions of the holder of the postOf ENT Surgeon/ Galle.
I order the State to pay the Petitioner a sum of Rs.10,000/-by way of a solatium for the distress caused to him.
I further order the State to pay the Petitioner a sum ofRs.5000/- as costs.
TAMBIAH,'J.'- I agree.
FERNANDO, J:
* Having had the advantage of reading the judgment of my brother.Amerasinyhe, I need not to refer to the facts which have been soclearly set out by him.
. While the State is entitled, as a matter of policy, to determine whatforeign qualificiations it would recognise for recruitment andpromotion of medical officers and Specialists, if cannot be arguedhere that the State, by the Circulars in question, refused to recognisethe Petitioner’s qualifications; paragraphs 6 and 7 conclusivelyestablish that those foreign qualifications are fully recognised, andthat no preference will be given to persons having the local P.G.I.M.qualification vis-a-vis persons having the aforesaid foreignqualifications, and falling within the ambit of those paragraphs.
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Further, It would be a legitimate management practice, designed toimprove motivation and to retain staff, to have a promotional schemebased on internal promotions only (or giving preference to, orreserving a quota for, those already in service), even though this mayresult in the exclusion of better qualified persons. A policy of insistingupon the appointment of an “outsider" as being the best-qualifiedperson, regardless of other factors, may sometimes result in adeterioration in morale among (and even loss of) staff already inservice, with a consequent decline in the overall efficiency of theinstitution: hence the maintenance of an efficient service would oftenjustify some-weightage being given to service within the institution.However, here both the Petitioner and the 4th Respondent werealready in service when the specialist post was advertised. It seemsto me that a State policy of giving preference, in regard toappointments and promotions in the public sector, to persons whohave a longer period of service in Sri Lanka (even outside the publicsector) would not necessarily amount, per se, to an improperclassification. However, in this case, none of these factors wouldoperate to justify the Petitioner being excluded from consideration forappointment as ENT Surgeon, Galle, on the basis that he was notqualified.
Despite the Respondents’ original contention that the Petitioner didnot possess the recognised post-graduate qualifications, and that the4th Respondent was the only eligible candidate, learned Senior StateCounsel had to concede that the Petitioner was eligible, that if he hadnot been eligible he could not have .been given a temporaryappointment in 1983, and that had the post been advertised a fewmonths earlier, the 4th Respondent would not have been eligible andthe Petitioner would inevitably have been appointed. It follows thatthe 4th Respondent was appointed on the basis that the Petitionerwas not qualified, and not because of any “preference" given to the4th Respondent.
"The Circulars do not purport to permit such an exclusion, but thatcircumstance per se would not entitle the Petitioner to relief in theseproceedings, although it might entitle him to relief in Writproceedings.
The Circulars apply to all medical officers in regard toappointments to the posts of Specialists, and no distinction is drawnbetween Teaching Hospitals and other Hospitals. Several other
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medical officers had admittedly been appointed to Specialist posts,and this cannot be explained' away on the basis that it was done bysome other Ministry or Department. In the result,' the Circulars havenot been applied equally, and the exclusion of the Petitioner was indenial of his rights under Article 12(1), That this infringement ot hisrights was not the result of inadvertence, a mistake, or an error ofjudgment, is apparent from the failure to fulfil the undertaking given tohim, in 1983, to advertise the post soon: from the failure to advertiseeven in May 1987; although the Petitioner was told, in 1984, that thepost would be advertised 4 years after his first (temporary)appointment; and from the fact that, inexplicably, the post was onlyadvertised after the lapse of the time required for the 4th Respondentto become eligible for appointment, which in my view was no merecoincidence.
It is clear that there was no reasonable, basis on which the 4thRespondent could have been “preferred” to the Petitioner. TheCirculars contemplate that “definite preference” will be given to“qualificationsthat such, qualifications will be preferred to otherqualifications, but not that the holder of the former will, regardless ofall other facts and circumstances, be preferred to the holder of thelatter; it does not authorise the exclusion of otheris. “Preference” inthat context would mean that, other things being equal, the personwith the local qualification'will be appointed; although as betweencompeting qualifications, the local qualification will be preferred,possession of the local qualification will not have the result of entitlingthe holder to appointment although in every other respect anothercandidate is more suitable or better qualified. Thus by giving“preference” to the specified qualifications the Circulars do notauthorise disregard of other relevant criteria, such as seniority,service, experience, or other relevant attributes. No ground whateverhas been pleaded or urged before us .as justifying the “preference"of the 4th Respondent, other than the Petitioner’s lack of the P.G.LM.qualifications. Every other relevant consideration cries out in favour ofthe appointment of the Petitioner. He obtained his basic qualification9 years before the 4th Respondent; he has served in Sri Lanka inGovernment Service for a period of 11 years, (as against 7 years bythe 4th Respondent, of which 2 years was outside Sri Lanka); he has4 1/2 years experience in the Specialist post itself, having acted forthat period, while the 4th Respondent had none; he obtained hisSpecialist qualification 4 1/2 years before the 4th Respondent. It is
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also relevant to mention that the Petitioner obtained his qualificationbefore the local examination was first held; i.e. at a time when it wasnot possible for him to have obtained that qualification except bygoing abroad. In those circumstances, it is not surprising that theRespondents did not seek to justify the appointment of the 4thRespondent on the basis of a "definite preference" in terms of theCirculars, for that would have been unreasonable and perverse in thecircumstances. But for the denial of his fundamental right, thePetitioner would undoubtedly have been appointed as ENT Surgeon,General Hospital, Galle. There has already been many a slip ‘twixtcup and lip in the past 6 years, and the relief now awarded to thePetitioner must prevent another.
Although I find it unnecessary to determine whether the Circulars of1979 violate the Constitution or are ultra vires, I would add that, if(contrary to my view as to the meaning of “definite preference" inparagraph 8 of the Circulars) that paragraph meant that whereonly one candidate had the local P.G.I.M. qualifications, he must beappointed although his rivals had a recognised foreign qualification,totally ignoring all other factors normally considered relevant for suchappointment, even then the entirety of the Circulars would not beultra vires and void, but only pro tanto.
As the interim order made by this Court has prevented thepurported transfer of the Petitioner, his Counsel has not pressed hisclaim to compensation. I would therefore grant the Petitioner thefollowing reliefs:
a declaration that the Petitioner’s fundamental right to equalitybefore the law and the equal protection of the law has beenviolated by the 1st, 2nd and 3rd Respondents, by their conductin treating him as not having the qualifications required forappointment as ENT Surgeon, General Hospital, Galle;
a declaration that the transfer of the Petitioner to the GeneralHospital, Colombo, as Assistant Surgeon (ENT) is null and void;
a declaration that the appointment of the 4th Respondent asENT Surgeon, General Hospital, Galle, is null and void;
a declaration that the Petitioner was entitled to be appointed asENT Surgeon, General Hospital, Galle, and a direction to theState, and the 1st, 2nd and 3rd Respondents (and theirsuccessors in office), to issue the requisite letter of appointmentforthwith, to be effective from a date not later than 8th January1988;
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costs in a sum of Rs.5,000 as against 1st, 2nd and 3rdRespondents and the State.
Application allowed.