012-SLLR-SLLR-2002-3-DAYARATNE-AND-OTHERS-v.-NATIONAL-SAVINGS-BANK-AND-OTHERS.pdf
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DAYARATNE AND OTHERS
v.NATIONAL SAVINGS BANK AND OTHERS
SUPREME COURTFERNANDO, J.,
GUNASEKERA, J. ANDYAPA, J.
SC NO. 452/2001 (FR)
MAY 28 AND JUNE 19, 2002
Fundamental Rights – Promotion to executive grades in the Bank – Time barunder Article 16 – Scheme of recruitment – Unlawful application of the Scheme- Article 12 (1) of the Constitution.
The petitioners who applied for promotion to the executive grade in the respondentBank were not selected. 41 candidates were promoted. The petitioners complained,inter alia, that 18 of them were junior to the petitioners and sought a quashingof the promotions of the said 18. They also alleged that the scheme of recruitmentand the allocation of marks on different criteria for selection as well as the conductof the interview devoting only two or three minutes per candidate vitiated theselections. The respondents sought to justify the selection and preferred a preliminaryobjection that the application was time-barred.
Held:
Time began to run against the petitioners only when the 41 promotionswere announced on 07. 08. 2001. Hence, the application filed on30. 08. 2001 was within time.
The scheme of promotion was not arbitrary-and unreasonable.
The interview and selection process was seriously flawed in that :
The original interview mark sheets indicating the assessment of eachmember of the Interview Board were not produced without goodreason but only two undated mark sheets signed by the 3rd to 5threspondents (members of the Interview Board).
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The interview schedule did not show the existence of one “AtapattuR. C. M.” for whom marks had been given in the mark sheetproduced to the Court. This was a serious discrepancy.
There was no satisfactory explanation as to how the original entrieswere processed to produce the final mark sheets. The likelihoodof error and manipulation has not been excluded.
(cf) The allocation of marks for qualifications was irrational and arbitrary;and the candidates were interviewed on an average of 10 minutesper candidate.
(e) There was inadequate time to assess the candidates in respectof all seven criteria and to arrive at a common mark in respectof each criterion.
Cases referred to :
Ranatunga v. Jayawardena – 1 FRD 77.
Jayawardena v. AG – 1 FRD 175.
Swissray Medical AG v. Fernando – SC 51/94 SCM 25. 07. 94.
Hewavitharana v. Chandrawathie – (1951) 53 NLR 169.
Selvam v. Kuddipillai – (1954) 55 NLR 426.
Rajakaruna v. De Silva – (1977) 2 SRI LR 209.
De Silva v. Secretary, Ministry of Health – SC 378/99 SCM 18. 03. 2002.
APPLICATION for relief for infringement of fundamental rights.
Dr. Jayampathy Wickremaratne, PC with A. Panditharatne for petitioner.
Harsha Fernando, State Counsel for 1st, 2nd and 6th respondents.
Gomin Dayasiri with Ms. JM, Jinadasa for 3rd to 5th respondents.
J.C. Weliamuna for the 12th, 16th, 19th, 20th, 21st, 23rd, 25th, 27th, 30th, 31st,
41st and 42nd respondents.
Cur. adv. vult.
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September 05, 2002FERNANDO, J.
The ten petitioners are officers of the National Savings Bank the 1 strespondent, and are presently in Grade III, Class III, which is thehighest of the supervisory grades. They complain that their fundamentalrights under Article 12 (T) were infringed by the 1st to 5th respondents,by reason of the failure to promote them to Grade III, Class II, whichis the lowest of the executive grades.
By a circular dated 20. 02. 1996 (as amended on 19. 03. 96),officers who had been recruited or promoted to Grade IV during theperiod 1980 to 1988, and “who have completed five years’ servicein Grade IV”, were summoned for interview for promotion to GradeIII, Class III (Grade Ill-Ill), and about 170 officers including the tenpetitioners were promoted with effect from 01.01 1996. In the meantimeby another circular dated 19. 03. 1996 officers promoted to GradeIV on 01.01.1992, although they had not completed five years servicein Grade IV, were also called for interview, and about 60 officerswere promoted to Grade lll-lll with effect from October or November,1996. The 20th and 25th respondents were promoted to Grade Ill-ill on 01. 12. 1999. The 23rd and 46th respondents were promoted,by letters dated 10. 07. 2000, with effect from 10. 12. 1993 and 01.01. 1996 respectively, but subject to the condition that their senioritywould be reckoned from 01. 04. 2000.
By a circular dated 12. 02. 2001, the 2nd respondent, the GeneralManager of the Bank, announced new schemes of promotion for allseven grades of clerical, supervisory and executive employees. Thescheme of promotion from Grade lll-lll to Grade III, Class II (Gradelll-ll) was as follows :
Eligibility Requirements : Officers confirmed in Grade Ill-Ill witha minimum of one year’s service in that Grade.
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Scheme of Evaluation :
Performance Evaluation Reportsfor the last 3 years according tothe rating given therein :
Service in Grade Ill-Ill (5 marksfor each year) in excess of theminimum required for eligibility :
Professional qualifications in Banking
or in a specialized field (marks willbe awarded only once in the career
of an officer) :10 marks
Interview for the assessment of
suitability :40 marks
By a notice dated 15.02.2001 applications were called for promotionsto all seven Grades, the closing date being 08. 03. 2001. After thatclosing date, by a memorandum dated 16.03.2001 the 2nd respondentmade certain changes in regard to two categories of promotions :promotions to Grade IV and to Grade Ill-Ill. By notice dated19. 03. 2001 Bank employees were informed of those changes andthat the closing date for applications had been extended to 02. 04.2001. Those changes did not affect the scheme of promotions to Gradelll-ll, and hence there was no need for an extension of the closingdate in respect of promotions to Grade lll-ll. Nevertheless, therespondents contend that the extension did apply to those promotionsas well.
Interviews for promotion to Grade lll-ll were held on eight daysbetween 12th and 28th June, 2001.
Maximum Marks
20 marks
30 marks
30
40
SO
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The interview panel consisted of the 3rd to 5th respondents, the3rd respondent being the Chairman. Th ird respondent producedeight interview schedules, one for each interview day. These schedules
gave the names, places of work, and the scheduled times of interview,but contained no. information whatever about the candidates’ pastperformance, performance evaluations, employment history,qualifications or experience. Each schedule contained the names ofabout 25 candidates to be interviewed between 1.00 p.m. and 5.00p.m. each day. The 3rd respondent stated that the interview paneldecided that the 40 marks for interview should be allocated equallyunder four heads : leadership qualities, attitude, personality, andknowledge and management skills; but he did not explain on whatbasis they decided to award marks for the performance evaluationreports and for professional qualifications.
On 07. 08. 2001, the 2nd respondent announced, the names of 41promotees (the 7th to 47th respondents), of whom 18 were junior tothe petitioners.
SUBMISSIONS
The petitioners challenged the scheme of promotion on severalgrounds. They complained that the basis of allocation of the 40interview marks had not been disclosed in advance; that since 20marks had been allocated for performance evaluation reports, theallocation of a further 40 marks for assessment of suitability at the'interview was excessive and amenable to abuse; that no marks hadbeen allocated for the period of service in senior and/or supervisory
grades; and that no recognition had been given for academic ■qualifications.
The petitioners also challenged the implementation of the scheme,alleging that the 23rd and 46th respondents did not have actual serviceof one year in Grade lll-lll; that qualifications had not been dulyconsidered; and that the interviews lasted only for two or three minutes,
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the only questions put being of a very personal nature, and not relevantto test their knowledge of banking or their suitability for promotion.
The respondents contended that the petitioners’ challenge to thescheme published in February, 2001, and to the interview processwhich ended on 28.06.2001, was time-barred, because this applicationwas filed on 30. 08. 2001 :
The Supreme Court has consistently dismissed applicationswhich have been filed out of time. Ranaturtga v. Jayawardena,SC No. 27/79, SCM 30. 07. 79 – the Court held that Article 126
applies both to infringements and threatened infringements. Thetime limit begins to run on the day the petitioner is aware of thethreatened infringement. Jayawardena v. AG SC No. 4/91 SCM
03. 81 – the Supreme Court held that the application has notbeen filed within one month of the apprehension of infringement ofthe petitioner’s fundamental rights. Rajakaruna v. de Silva, [1997] 2Sri LR 209 – the* Court held that the application was out of timebut heard the application as the petitioner was not represented byCounsel.”
The respondents also urged that the petitioners had not protestedeither about the scheme or the interview process until long afterwards.
On behalf of the interview panel, only the 3rd respondent tenderedan affidavit. In regard to the implementation of the scheme, the 3rdrespondent submitted that the 23rd and 46th respondents “had
completed one year’s service in [Grade III, Class III) on 02. 04 2001”,i;e. the extended closing date; that “due recognition has been givento the academic qualifications of the candidates and 10% of the totalmarks has been allocated for this purpose”; and that each candidatehad been interviewed “for a minimum of 10 minutes”. (Some of thepromotees claimed that they had been interviewed for a minimum often to fifteen minutes). He did not explain the basis on which the
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interview panel awarded marks for the performance evaluation reportsand for professional qualifications. As for the allocation of interviewmarks, however, he gave a very detailed description :
“Under the category “Leadership" the candidates were questioned 120on the handling of responsibilities assigned to them over and abovethe regular duties allocated to them, such as signing powers,managerial duties, etc. For example the candidates were questionedas follows : “Have you been assigned any “A” Class signing powersduring the last three years? What are the additional responsibilitiesundertaken by you during the last three years …? Have you beenassigned the duties of your superior officers when such officerswere not available?” The candidates were also tested on whetherthey had played an initiative role in various duties and functionsof the 1st respondent bank.130
Under the category. “Attitude” the panel tested the attitude ofeach candidate towards their work and the welfare of the 1strespondent bank. The candidates were queried on their workperformance and were tested on their enthusiasm for the performanceof their duties, their participation and contribution towards variousimportant occasions, welfare projects of the 1st respondent'bank …
Under the category “Personality” the panel evaluated thepersonality of the candidate, by observing his appearance, .demeanour, the manner in which [he] presented himself for the vh°interview and answered questions.
Under the category “Knowledge of Work and Managerial Skills”the candidates were tested on their knowledge about the varioussaving schemes … [of the 1st respondent] and about the visionand goals . . . and targets for the year ahead . . . candidateswere also questioned and tested on their ideas and views concerningnew and improved methods of carrying out various duties." [emphasisadded
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SCHEME OF PROMOTION
Although the basis of allocation of the 40 interview marks had notbeen disclosed in advance, in regard to promotions to the other gradesthe criteria stipulated in the circular of 12. 02. 2001 included leadership,attitude, communication skills, knowledge, management skills,communication skills, and personality. While it would have been. betterif the circular had specified the criteria and the marks in the caseof promotions to Grade lll-ll as well, the allocation adopted by theinterview panel was neither unreasonable nor unexpected.
The allocation of 20 marks for performance evaluation reports wasnot inconsistent with the allocation of a further 40 marks for assessmentof suitability at the interview. A review of the performance evaluationreports was necessary to assess whether past performance wassatisfactory, while the interview was intended to assess suitability,i.e. the likelihood of satisfactory future performance. The quantum ofmarks allocated to those two criteria was not unreasonable, eitherindividually or cumulatively.
The petitioners’ complaint that no marks had been allocated for'the period of service in senior and/or supervisory grades is untenable.The 30 marks allocated for service in Grade Ill-Ill constituted asufficient recognition of past service.
Finally, it is unnecessary to consider the allegation that no recognitionhad been given for academic qualifications, because the 3rd respondent-asserted that academic qualifications were recognized. Whether theywere satisfactorily recognized is another matter, which I will turn tolaterr I
I hold that the scheme of promotion was not arbitrary or unreasonable.
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PRELIMINARY OBJECTION
The first limb of the respondents’ preliminary objection is that afterthe lapse of one month the petitioners were not entitled to challengethe scheme of promotion. The 1st respondent was entitled, from time
to time, and in the interests of the institution, to lay down the basison which employees would be promoted, and that became part ofthe contract of employment. The scheme of promotion published on12. 02. 2001 was directly and immediately applicable to the petitioners,and became part of the terms and conditions of their employment.If they did not consent to those terms and conditions, as being violativeof their rights under Article 12, they should have complained to thisCourt within one month. They failed to do so. Instead, they acquiescedin those terms and conditions by applying for promotion without anyprotest. I, therefore, uphold the objection.
The second limb of the objection is that the interview processconcluded on 28. 06. 2001; that the petitioners’ allegations in respectof the allocation of marks at the interview related to that process;and that any complaint that that process was in violation of Article12 should have been made within one month of 28. 06. 2001. Thatcontention has two aspects : either that there was a completedinfringement by 28. 06. 2001, and time ran from that date, or thatby then an infringement was apprehended, which constituted animminent infringement, to which too the time limit of one month applied. I
I must now deal with the decisions cited by the respondents. Thepetitioner in Ranatunga v. Jayawardena,<1> alleged that his fundamentalright was infringed by the “improper selection of a non-qualified.candidate” for political reasons. That selection had been communicatedto him in June, 1978. The objection was taken that “the fundamentalright if any which the petitioner alleges was violated did not exist atthe time of the alleged executive or administrative action”. However,the petitioner’s Counsel submitted that his allegation was that therehad been a threatened infringement. The Court held that no such
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fundamental right existed in June, 1978, and that even assumingthat there was a threatened infringement which continued until
09. 1978, the time of one month was applicable. The application,having been filed only in June, 1979, was therefore out of time. With 210respect, it seems to me that the petitioner’s complaint was of an actualinfringement in June, 1978, for which there was no remedy becauseArticle 126 was not retrospective, and even if it was retrospective,the application was not filed within one month of 07. 09. 1978.
In Jayawardena v. AG® the petitioner was the holder of a permitissued under the Crown Lands Ordinance. In June, 1980, he receivedseveral letters, to the effect that rent should not be accepted fromhim for the year 1980, that his permit should be cancelled for thereason that he had not paid rent for 1980, and that he should quitby 19. 07.1980. In January, 1981, summons was served on him under220the Recovery of State Lands Act, whereupon he filed an applicationunder Article 126 alleging that he was being dispossessed to makeroom for a political favourite. The Court held that ‘On the questionas to whether the authorities were about to infringe a fundamentalright, it seems clear that he should have had that apprehension” inJune, 1980, and that time began to run then. Here, too, the petitioner’scomplaint was of an actual infringement in June, 1980, and theapplication filed in January 1981, was out of time.
Both those decisions dealt with allegations, which if true, constitutedactual infringements. In neither did the question of an “imminenf ^.. infringement really arise. Further, both decisions did not discuss whena possible (or an anticipated or apprehended) infringement becomes“imminent”. I do not agree that the moment a person becomes awareof'the possibility of an infringement he must rush to Court : becausefor an infringement to become “imminenf it must not only be verylikely to occur, but must also be very likely to occur very soon(cf Swissray Medical AG v. Fernando.®)
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In any event, those decisions do not suggest that the failure toseek relief in time in respect of an infringement at the stage that itis imminent bars an application for relief once the infringement actually 240takes place. In my view, an aggrieved person has the right to challengean infringement not only when it is imminent but also after it hasoccurred. The failure to challenge an imminent infringement in timewill never bar a subsequent actual infringement – just as an imminentthreat to enjoyment of immovable property entitles the owner toquia timet proceedings to prevent the apprehended invasion of hisrights, and an actual invasion of his rights entitles the owner to bringa vindicatory or a possessory action to redress the wrong(cf Hewavitharana v. Chandrawathie,™ and Selvam v. KuddipillaiSS))
In this case the infringement of the petitioners’ rights occurred not 250when the interviews were concluded on 28. 06. 2001, nor even whenthe interview panel made its recommendations, but only when the 1strespondent acted upon those recommendations. The recommendationsdid not amount to an infringement, because the Board of Directorsmight have refused to accept them. Even assuming that they mighthave amounted to an imminent infringement, yet the respondents havenot established when they were made – and the burden was onthem as the party pleading the time-bar – and accordingly we do notknow when time began to run.
Consequently, time began to run against the petitioners only when 260the names of the 41 promotees were announced on 07. 08. 2001.
I hold that the complaint in respect of the implementation of thescheme was therefore within time.
There remains the decision in Rajakaruna v. de Silvde) where itwas observed that although the petitioner may not have applied strictlywithin the prescribed time, the Court was “inclined to consider hiscase on merits as he was not represented by Counsel”. If that principleis consistently applied, victims of fundamental rights violations willbecome entitled to file belated applications provided they do so in
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person, waiving their right to legal representation; and Attomeys-at-Law will advise clients that otherwise time-barred claims maynevertheless be made in person. Article 126 provides that a petitioner“may himself or by an Attorney-at-Law on his behalf, within one month. . . apply to the Supreme Court". The time bar has thereby beenmade expressly applicable to a petitioner in person, and cannot bewaived. In any event, those observations have no relevance to thisapplication.
IMPLEMENTATION OF THE SCHEME
The 1st to 5th respondents did not produce the original interviewmark sheets. What was produced as being the interview mark sheetswere two sets of documents, signed by the 3rd to 5th respondents,but undated. One set contained the full details in respect of all sevencriteria, including the breakdown of the 40 interview marks. The otherset was identical, except that in regard to the interview marks it gaveonly the aggregate. In both, the names of the candidates had beenarranged in order of merit, and it was therefore obvious that they hadnot been contemporaneously entered, and must have been preparedafter all the interviews had been concluded. In the 3rd respondent’saffidavit he did not explain how the members of the panel made andrecorded their assessments as the interviews progressed each day.Were the marks for performance evaluation reports, service in GradeIll-Ill, and qualifications given as each candidate was interviewed (orbefore or after)? Did each member make his own assessment assoon as each candidate was interviewed, and did the panel makea common assessment immediately thereafter? Or did each memberrecord his own assessment, a common assessment being made atthe end of the day?
In the written submissions filed on behalf of the 1st and 2ndrespondents – after the oral hearing – it was submitted that the,interview panel prepared a common mark sheet “which has beenprocessed by computer”, that the members have placed their signaturesthereto, thus certifying to its veracity and authenticity; that “of course
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the personal notes maintained by each individual member, if at all,have not been produced . . . [which] is not a fatal omission”, andthat it has been held that a common mark sheet is valid and doesnot perse amount to arbitrariness (citing de Silva v. Secretary, Ministryof Healtff)). Those submissions do not answer the questions raisedin the preceding paragraph. The documents in which the originalentries were made on each of those eight days by members, individuallyor collectively, have not been forthcoming. The respondents’ plea thatthe mark sheet had been “processed" by computer does not explain 310whether the entries were made on to the computer directly as eachinterview ended (and if so by whom), or were entered later from oneor more documents; and the likelihood of error and manipulation hasnot been excluded.
Accordingly, it became necessary for me to scrutinize the interviewschedules and mark sheets closely. The interview schedules contained200 names in all. Two names were repeated. That means, therefore,that 198 candidates had been called for interview. According to thoseschedule, interviews were scheduled from 1.00 p.m. to 5.00 p.m. eachday. The time spent on interviews was thus 32 hours, which means 320that, each interview took an average (and not a minimum) of tenminutes. However, the interview mark sheets contained 199 names,and on examination it turned out that the 86th candidate in order ofmerit was “Atapattu R. C. M.”, whose name did not appear in theinterview schedules. Did the interview panel interview a candidate whowas not scheduled to be interviewed, or did they give marks to acandidate who was not interviewed? Or was it due to a computererror? The absence of the original mark sheets was therefore a seriousshortcoming.
The last name of the interview mark sheets is that of a person 330scheduled for interview on the 2nd day. He was given no marks undereach head, which means that he did not turn up for the interview.However, that entry tends to prove that marks for performance evaluationreports, service in Grade lll-lll, and qualifications, were not given inadvance, but at the interview.
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The manner in which marks were allocated under the head of“professional qualifications” was not at all satisfactory. According tothe scheme, marks were due only for professional qualifications “inbanking or in a specialized field”, and not for academic qualifications.While the petitioners were not entitled to challenge the scheme inrespect of any omission to recognize academic qualifications, the.3rdrespondent categorically stated that they were in fact recognized. The20th and 25th respondents had qualifications, while the 23rd and 46thdid not claim any. The following is a summary of the marks givento those four respondents and the ten petitioners :
Marks
25th Respt Associate Member, Institute of Bankers(I.B.) and Certificate Course in use ofTechnology10
20th ResptIntermediate Exam LB. & Diploma
in Credit Management10
23rd ResptNo qualifications disclosed05
46th ResptNo qualifications disclosed05
6th Pet .? Intermediate I.B. & Bachelor’s Degree05
in Development Studiies
2nd PetB.Sc. in Administration05
8th PetIntermediate I.B., & Diploma,Institute
of Workers’ Education; final year studentfollowing Bachelor’s Degree in LabourEducation. 00
4th PetIntermediate I.B.00
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Marks
1st PetBachelor’s Degree in Economics00
3rdPetBachelorofArts00
5thPetBachelorofArts00
7thPetBachelorofArts00
9thPetBachelorofArts00
10th PetNo qualifications disclosed00
If the 20th respondent deserved ten marks, the intermediate
examination of the Institute of Bankers merited at least five marks;and there is no rational basis on which the 4th and 8th petitionerscould have been denied any marks. If the 2nd petitioner deservedfive marks, the 6th deserved more; and the 1st petitioner deservedsome marks. If the 3rd respondent was truthful in claiming that duerecognition had been given for academic qualifications, the 1st, 3rd5th, 7th and 9th petitioners deserved, some marks – at least todifferentiate them from candidates who had no qualifications. Why the23rd and the 46th respondents were given five marks is a mystery.The mark sheets reveal also that candidates were given ten marks,five marks, or none. The allocation of marks for qualifications wasirrational and arbitrary.
Those discrepancies suggest that the interview panel did not takethe time to make a detailed study and comparison of the candidates!qualifications – although it was only a minority of candidates whoappear to have had qualifications. The impact of those discrepanciesmust be considered in the light of the fact that the last 15 promotees(including the 23rd and the 46th respondents) obtained 56 to 54marks, while the next 16 unsuccessful candidates (including sixpetitioners) scored 53 marks. If some of the promotees got two or
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three marks less, and/or the next 16 unsuccessful candidates got justone mark more, the picture would have been quite different. Theseven petitioners who were given no marks for qualifications (i.e. otherthan the 10th) should reasonably have been given at least one ortwo marks – enough to make a difference.
The petitioners have urged that the time spent on each interviewwas insufficient. The respondents did not suggest that they wereprovided with interview schedules containing particulars of thecandidates’ past performance appraisals, employment history,qualifications or experience. While the allocation of marks for servicein Grade Ill-Ill would have been quick, the allocation of marks forperformance on the basis of ratings received would have requiredscrutiny of the performance evaluation reports. Qualifications wouldhave had to be reviewed and assessed. Assessment of “suitability”would have required time – particularly, if the panel did probe “suitability”in the exhaustive way they claim to have, including “testing” candidates.Further, if they jointly allocated marks to each candidate for eachcategory, contemporaneously, some discussion and delay wereinevitable. It is therefore very probable that the average time of justten minutes available for each candidate was quite insufficient toassess the candidates .fairly end accurately – and that is confirmedby the discrepancies in regard to marks for qualifications. Therespondents cited De Silva v. Secretary, Ministry of Health where fourcandidates were interviewed for about thirty minutes each. It was inthat context that I observed that particularly where the number ofcandidates to be interviewed is small, a joint evaluation of eachcandidate, systematically and honestly done, may sometimes be moreuseful than individual evaluations – because comments and discussionwould ensure better and more consistent evaluation. The evaluationprocess in this case came nowhere near those standards. I
I must mention also that the 23rd and the 46th respondentsreceived nine out of ten for each of the four heads assessed at theinterviews, while the 20th and 25th respondents received 33 out of
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40. This was more than any other candidate. Each of the other 37promotees had four or five years’ service in Grade Ill-Ill, while thosefour respondents had approximately one year each. Having regardto the small margin, of one or two marks, between success and failure,it is highly probable that those asessments were made with unduehaste.
Finally, the eligibility requirement was a minimum of one year'sservice in Grade Ill-Ill. The petitioners rightly contend that the 23rdand the 46th respondents did not have one year’s actual service, andwere therefore ineligible even to apply for promotion.
To sum up, the original interview mark sheets were not producedwithout good reason; there was a serious discrepancy as to theallocation of marks to candidate R. C. M. Atapattu; there was nosatisfactory explanation as to how the original entries were processedto produce the final mark sheets; the allocation of marks for qualificationswas irrational and arbitrary; there was inadequate time to assess thecandidates in respect of all seven criteria and to arrive at a commonmark in respect of each criterion; and the 23rd and 46th respondentswere ineligible.
therefore, hold that the interview and selection process wereseriously flawed.
RELIEF
The petitioners have asked for a declararion that the scheme ofpromotion be declared null and void, and that the promotion of allthe promotees be; declared void. For the reasons stated above, Iuphold the scheme.
In the alternative, the petitioners have prayed for the quashing,not of all, but only of the promotions of the 7th, 12th, 16th, 19th,
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20th, 21st, 23rd, 25th, 27th, 40th, 41st, 42nd and 46th respondents- on the basis that they were all junior to the petitioners. While theentire process was flawed, I do not consider it just and equitable toquash the other promotions, as the petitioners had not sought thatrelief. The petitioners have also asked for an order directing the 1strespondent to promote them to Grade lll-ll. However, the circumstancesdo not justify such an order.
I, therefore, grant the petitioners a declaration that their fundamentalrights under Article 12 (1) have been infringed by the 1st, 3rd, 4thand 5th respondents. The promotions of the 7th, 12th, 16th, 19th, «o20th, 21st, 23rd, 25th, 27th, 40th, 41st, 42nd and 46th respondentsare quashed. The 1st respondent will have a fresh interview andselection process, conducted by a different interview panel basedon the same criteria, for the candidates who presented themselvesfor the June, 2001, interviews. That interview and selection processshall be concluded on or before 30. 11. 2002. The 1st respondentwill pay each of the petitioners a sum of Rs. 40,000 as compensationand costs on or before 31. 10. 2002.
GUNASEKERA, J. – I agree.YAFA, J. – I agree.
Relief granted.