BRIGADIER LIYANAGE
v.CHANDRANANDA DE SILVASECRETARY,
MINISTRY OF DEFENCE AND OTHERS
SUPREME COURTAMERASINGHE, J.
WIJETUNGA J. ANDBANDARANAYAKE. J.
S. C. APPLICATION 506/99 (F. R.)
2"d NOVEMBER. 1999
Fundamental rights ■ Failure to promote the petitioner as a Major General- Article 12(1} of the Constitution.
The petitioner was suspended from duties until the hearing anddetermination of the "Embilipitiya disapperances case" and he wasnot considered for promotion pending the court case. Consequently, hewas superceded by two other officers. After trial, he was acquitted.Thereafter, the Commander of the Army made a written recommendationto the Secretary, Ministry of Defence (the lsl respondent) that thepetitioner be, inter alia, promoted to the rank of Major General with'effectfrom 4"' December, 1997 on a supernumerary vacancy on which date thetwo officers who had superseded the petitioner were promoted to the rankof Major General and thereafter be absorbed into the permanent cadrewith effect from 10lh February. 1999 on which date the High Courtjudgement was delivered. However, the petitioner was not promoted tothe post of Major General on the ground that the promotion was not inthe best interest of the Army since the petitioner failed to exercise duecontrol over persons who were convicted by court.
The petitioner did occupy a place of authority in the chain of command.But so were others above and below him who were nevertheless pro-moted. There was also no explanation why a captain Chamarasinghewho had been indicted in the court was promoted with effect from 2ndJune 1995 to the rank of temporary major.
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[20001 l Sri LR.
Held :
The failure to promote the petitioner to the post of Major General asrecomniended by the Commander was unreasonable, irrational, arbi-trary and in the circumstances violative of the petitioner’s fundamentalrights guaranteed by Article 12(1) of the Constitution.
Per Amerasinghe. J.
'The petitioner, as we have seen, was acquitted and in the eyes of the lawis in no worse position than those other persons who were in the chainof command."
APPLICATION for relief for infringement of fundamental rights.
Romesh de Silua. P. C. with Palitha Kuniarasinghe and Hirande Alwis forthe petitioner.
Shauirtdra Fernando. S.S.C. with Sanjay Rajaratnam S.S.C. and N. PulleS. C. for respondents.
Cur. ado. uulL
November 25, 1999AMERASINGHE, J.
The petitioner joined the Ceylon Army as a Cadet Officerin 1968. He was promoted to the rank of 2n<l Lieutenant inAugust 1969 and through various ranks he was made aBrigadier in 1995. He has been the recipient of the followingawards for exceptional services :
Ranawickrama Padakkama
Ranasura Padakkama
Uttama Seva Padakkama
North East operational Medal and Clasp V Rivi ResaMedal and Clasp.
In the annual appraisals by superior officers between1962 and 1996 he received “above average” gradings. He hasbeen described as an “asset to the Army” (1992 Major General
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Brigadier LAyanage u. Chandrananda de Silva
Secretary. Ministry of Defence and Others (Amerasinghe. J.)
23
Daluwatte), “outstanding Officer” (Major General Namuni); ithas been observed that he had “always brought good results”(1996 Major General Seneviratne). Additionally, in a letterdated 5,h September 1999 marked as document A15, GeneralHamilton Wanasinghe, after describing the achievements ofthe petitioner, concludes that "with this record BrigadierLiyanage could easily be termed as an asset not only to theArmy but the country as a whole".
However the petitioner was not promoted to the rank ofMajor General to the supernumerary vacancy in 1997 and asa Major General in the permanent cadre with effect from 10,hFebruary 1999. He states that the failure to promote him is"unreasonable", arbitrary and capricious and constitutes aviolation of his fundamental rights guaranteed by Article 12(1)of the Constitution.
The respondents do not dispute the fact that the petitionerhad an. outstanding career in the Army. However, theymaintain that in terms of Regulation 12 of the Army Officers'Service Regulations (Regular Force) 1992, the respondentswere obliged to deny the petitioner his promotions.
Regulation 12 provides as follows :
Promotion to the rank of Colonel and above shall be byselection. In the case of promotion to the rank of Colonel suchpromotion shall be given only to such substantive LieutenantColonel as is considered best qualified for such rank andappointment. In the case of promotion to the rank of Brigadier,such promotion shall be given only to such substantiveColonel as is considered best qualified for such rank andappointment.
In the case of every such selection –
the officer's past record of service; and
the question whether his promotion is clearly in thebest interest of the Army shall be considered.
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The respondents maintained that the petitioner’s promo-tion was denied him because it was in the best interest of theSri Lanka Army to do so. They arrived at this conclusion onthe basis that the petitioner had exercised insufficient controlover his subordinates when he was serving in the Army as theCo-ordinating Officer of Ratnapura in 1989. Specifically, thematter of concern related to charges against the petitioner inthe "Embilipitiya disappearances case". The petitioner wasacquitted of all charges against him. Although the Attorney-General filed appeals in respect of certain persons, no appealagainst the petitioner's acquittal was filed by the Attorney-General.
Although the petitioner was suspended from duties untilthe hearing and determination of the case referred to above,after his acquittal the Commander of the Army wrote to theSecretary, Ministry of Defense as follows:-
Since he has been acquitted by the High Court I havethe honour to recommend his reinstatement in the Army andthe appointment as the Quarter Master General with effectfrom 10 February 1999.
He was not considered for promotion pending theabove Court Case and as a result was superseded by twoofficers namely Major General L. C. R. Goonawardena RSPUSP ndc 1G and Major General G. W. W. Perera RWP RSP psc.
I therefore recommend that Brigadier R. P. Liyanage RWP RSPUSP be promoted to the rank of Major General with effect from04 December 1997 on a supernumerary vacancy on whichdate the above two officers were promoted to the rank of MajorGeneral and thereafter be absorbed into the permanent cadrewith effect from 10 februaiy 1999 on which date the HighCourt judgment was delivered."
The petitioner has pointed out that with effect from 11"'February 1999, the petitioner functioned as Quarter MasterGeneral, a position normally held by an officer in the rank of
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Brigadier Uyanage u. Chandrananda de Silva
Secretary. Ministry of Defence and Others (Amerasinghe. J.)
25
Major General. However, notwithstanding the recommenda-tion of the Army Commander, (the 2nd respondent), thepetitioner has not been promoted to the post of Major General.Learned Counsel for the respondents submitted that thepromotion was not in the best interest of the Army since thepetitioner had failed to exercise due control over persons whowere convicted in the abovementioned court case. It was notin dispute that the petitioner was not in any way directlyinvolved in the commission of the offences dealt with in theabove case. The petitioner did occupy a place of authority inthe chain of command. But so were others above and belowhim who were nevertheless promoted. For instance. BrigadierVajira Wijeratne, the Provincial Commander who was hisimmediate superior was promoted to the rank of Major Generalin 1996. Two Battery Commanders who stood immediatelybelow him namely. Major D. J. R. Rupasinghe and Major R. M.Piyatilake were also promoted. Major D. J. R. Rupasinghe waspromoted with effect from 15th January 1996 and MajorPiyatilake was promoted with effect from 6th June 1997 astemporary Lieutenant Colonels. Learned Counsel for therespondents sought to distinguish the cases of the ProvincialCommander and the Battery Commanders on the basis thatthey were n'ot indicted in the case referred to above. There isno explanation why Capt. K. V. V. Chamarasinghe, Detach-ment Commander who was an officer in charge of the SevanaDetachment and indicted in the court case was promoted witheffect from 2nd June 1995 to the rank of temporary Major. Thismakes the failure of the respondents to treat the petitioner inan even handed manner arbitrary and capricious. Thepetitioner, as we have seen, was acquitted and in the eyes ofthe law is in no worse position than those other persons whowere in the chain of command. Learned Counsel for therespondents submitted that the "disapperance case" hadattracted international as well as local concern and that themiscreants must be seen to be suitably dealt with. There is norational reason why the petitioner should be singled out fromthose who might be held accountable because of their
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positions in the chain of command. Moreover one would haveexpected officers closer in rank to those found guilty in the casereferred to above such as Battery and Detachment Command-ers if the occupation of a place in the chain of command wasa matter that called for punitive action.
Much reliance was placed by Learned Counsel for therespondents on the reports submitted by the Magistrate inconnection with certain Habeas Corpus applications. Havingexamined the observations made by the Magistrate it is clearthat the petitioner was not in any way directly implicated. Hadthe first respondent perused the reports of the Magistrate withcaution and deliberation it should have been evident to himthat the petitioner’s blameworthiness was neither more norless than that which was attributable to all those in the chainof command.
For the reasons set out above I am of the view that thefailure to promote the petitioner to the post of Major Generalwith effect from 4th December 1997 on a supernumeraryvacancy and as Major General in the permanent cadre witheffect from 10th February 1999 was unreasonable, irrational,arbitrary and capricious and in the circumstances was violativeof the petitioner's fundamental rights guaranteed by Article12(1) of the Constitution. I make order that the recommenda-tions of the Commander of the Army dated 8th March 1999addressed to the Secretary Defence (letter No. MSB/A. 6/1dated 8th March 1999) be implemented. I further make orderthat the State shall pay the petitioner a sum of Rs. 50,000 ascompensation and a sum of Rs. 5000 as costs.
WIJETUNGA, J, I agree.
BANDARANAYAKA, J. – I agree.
Relief granted.
