024-SLLR-SLLR-1997-V-1-WIJESURIYA-v.-NATIONAL-SAVINGS-BANK.pdf
WIJESURIYA
v.
NATIONAL SAVINGS BANK
SUPREME COURT.
FERNANDO. J..
WADUGODAPITIYA, J. ANDWIJETUNGA, J.
S.C. 142/95AUGUST 23.1996.
Constitution – Article 12(1) – Promotions – Interview – Cancelled – Fresh interviewwith a changed scheme – Not notified.
The petitioner states that he is entitled to be appointed to one of the four posts ofRegional Security Officers on the results of the first interview at which interview hewas placed first, but that interview was cancelled and at a second interview forthe purpose of which, the selection criteria/ scheme for awarding marks waschanged without prior notice, the petitioner was left out. The petitioner complainsof discrimination and that he had been denied the equal protection of the law.
Held: Per Wadugodapltiya, J.‘It has been held more than once, that it is imperative that candidates atinterviews must be afforded equal opportunity of presenting their cases whenfacing Boards of Interview and that one of the ways of achieving this end is tomake known in advance the criteria to be adopted and the scheme of markingespecially when a significant change is made.
What was done in this case was against all canons of fair play, where not onlywas a Competent Board found fault with and the interview cancelled for noobjectively, valid reasons, but a New Board was appointed to conduct aninterview basing itself upon a changed scheme of marking which new schemewas not notified and was not within the knowledge of the petitioner.”
The second interview was fatally flawed. The 7th respondent had misused hisdiscretion and acted arbitrarily and unreasonably in cancelling it. While it is truethat a Board of interview generally lacks the authority to make appointments, yetits findings cannot be arbitrarily set aside.
Manohara R. de Silva for the petitioner.
Surath Piyasena. S.S.C. for 1st, 2nd, 6th and 7th respondents.
J.C. Boange for 3rd and 4th respondents5th respondents absent and unrepresented6th respondent present in person.
Cur. adv. vuit.
January 31,1997.
WADUGODAPITIYA, J.
The petitioner was given leave to proceed with this application inrespect of an alleged violation under Article 12(1) of the Constitution.His complaint is directed against the 1st, 2nd and 7th respondents,and is, briefly, that he was entitled to be appointed to one of the fourposts of Regional Security Officer on the results of the first interviewheld on 24.2.95, at which interview he was placed first, havingobtained 77 marks; but that this interview was cancelled, and, at asecond interview held on 10.4.95 for the purpose of which, the saidrespondents had changed the selection criteria and/or the schemefor awarding marks without prior notice to the petitioner, the petitionerwas left out and the 3rd respondent was appointed instead, togetherwith the 4th, 5th and 6th respondents.
The petitioner states that he first joined the 1st respondent banktogether with the 6th respondent on 1.8.80 in the capacity of SecurityAdministrative Officer (P1') when the Security Division was firstestablished in the 1st respondent Bank. The 3rd, 4th and 5threspondets who are also Security Officers, also joined at that time butare junior in service to the petitioner and the 6th respondent. He goeson to state that in January 1995, applications were called for, for fourposts of Regional Security Officer (P2) in the Bank’s service.Seventeen Security Officers of the 1st respondent bank including thepetitioner and 3rd to 6th respondents applied. By letter dated 16.2.95(P3), the petitioner was summoned by the 2nd respondent for aninterview on 24.2.95. Similar letters were sent to others. The Board ofInterview consisted of 2nd respondent (Chairman), S. H. Piyasiri,Assistant General Manager (Inspection), and R. C. Gunaratna,Security Manager, who was the head of the Security Division of the1st respondent bank.
The petitioner states, that according to information he received, hewas placed first with 76 marks, the 5th respondent, second with 62marks, and the 4th and 6th respondents, third with 54 marks each.The 3rd respondent was not among the first four.
Replying to this particular averment, the respondent states in hisaffidavit, that petitioner obtained 77marks, whilst the 5th respondentobtained 67 marks, and the 4th and 6th respondents obtained 63marks each. The 7th respondent admits that the 3rd respondent wasnot among the first four.
The petitioner goes on to state that although the marks weregenerally known, the results were not released officially, but what infact happened was that by letter dated 31.3.95 (P4), all theapplicants were called for a ‘further interview" fixed for 10.4.95. Thisletter P4, is also signed by 2nd respondent. A new Board of Interviewwas appointed for this 2nd interview and consisted of P. A. S.Prathiraja. Senior Assistant Secretary. Minister of Finance (Chairman).R. Navaratnarajah Deputy General Manager (Internal Audit), andQuintus Perera, Assistant General Manager (Inspection). This Boardhad been appointed by the 7th respondent. The petitioner states thathe was surprised that the Head of the Security Division was not onthe Board.
The petitioner complains that whereas at the 1st interview he wasquestioned for 15 to 20 minutes, especially on his duties and onmatters pertaining to security management, problems and solutionsregarding security at the Bank, at the 2nd interview held on 10.4.95,he was questioned only for about 3 to 4 minutes on what his presentduties were. He states that when he started answering, he wasinterrupted by Mr. Navaratnarajah and not allowed to answer further.No other questions were asked regarding his area of work but he wasasked whether he had played Cricket. The 7th respondent in hisaffidavit replies as follows:- ‘I deny that the petitioner was interviewedfor 3 minutes (circa). Answering further, I state that the petitioner wasinterviewed for more than 15 minutes in the same that was devotedfor other candidates.” Since the 7th respondent was not on the Boardof Interview, this is pure hearsay, and not acceptable evidence. Thereis no affidavit from any member of the Board of Interview.
The petitioner states that thereafter, on 19.4.95, on 7threspondent's instructions, the 2nd respondent informed the SecurityManager that the 3rd to 6th respondents had been appointed to the 4posts of Regional Security Officer (P5). He says that he got to knowthat the 1st interview had been cancelled on the directions of the 7threspondent. He feels that the facts that he was a member of theJathika Sevaka Sangamaya and organizer of the said Trade Union inthe Security Division of the 1st respondent bank, which Trade Unionwas affiliated to the United National Party, weighed against him. Onthe other hand, he says that the 3rd to 6th respondents are membersof the Ceylon Bank Employee's Union which is affiliated to thepolitical parties which constitute the present Government. Thepetitioner’s Union took up the matter and wrote to the 7th respondentabout it and the 7th respondent replied by P6 that the 2nd interviewwas held not for the purpose of ousting members of the JSS TradeUnion but because he felt that the 1st interview had not been held ina fair and impartial manner. He gave no reasons.
The petitioner complains that after the 2nd interview, the 4th, 5thand 6th respondents who were also successful at the 1st interview,were selected once again. He states that the only purpose for holdingthe 2nd interview was to exclude him from selection, and to replacehim with the 3rd respondent.
The petitioner states that he has been discriminated against anddenied the equal protection of the law.
The 7th respondent in his affidavit states by way of answer, that ona scrutiny of the report on the 1st interview, he formed the opinionthat that interview had not been conducted in a just and impartialmanner. He gives only two reasons: firstly, that the Interview Boardhad awarded the petitioner 20 out of 25 marks for performance as asecurity officer although there were three adverse reports against himfor the year 1992. and, secondly that the Board had awarded thepetitioner 10 out of 10 marks for efficiency shown in discharging hisduties and a commendation therefore in June 1994, whilst for anidentical commendation, candidate N. D. N. Q. Perera had beenawarded only 5 out of 10 marks.
Although the Board of Interview which conducted the first interviewhad awarded 77 marks to the petitioner; 67 marks to the 5threspondent and 63 marks each to the 4th and 6th respondents, andhad recommended their promotion as Regional Security Officers witheffect from 1.3.95 (7R1), the7th respondent states that, “I get theimpression that the Board has been very subjective in markingMr. Wijesuriya" (i.e. the petitioner), and called for the observations ofthe Chairman of the Board (7R1).
The Chairman of the board (2nd respondent) replied by 7R2. Therelevant portions of his reply are quoted as follows: