034-SLLR-SLLR-2003-1-WEERASEKARA-v.-DIRECTOR-GENERAL-OF-HEALTH-SERVICES-AND-OTHERS.pdf
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Weerasekara v. Director-General of Health Services and others
(J.A.N. de Silva. J.)~
295
WEERASEKARA
v
DIRECTOR-GENERAL OF HEALTH SERVICESAND OTHERS
SUPREME COURTFERNANDO, J.
YAPA, J. ANDJ.A.N. DE SILVA, J.
SC FR APPLICATION No. 86/200230 JANUARY AND 14 FEBRUARY, 2003
Fundamental Rights – Appointment in the Health Department as traineepharmacist – Applications limited to employees serving in the department -Doubt regarding the construction of a criteria of selection for appointment -Interpretation of the criteria in legitimate expectation of appointment – Article12(1) of the Constitution.
The petitioner, a dispenser in the Department of Health Services applied to sitan examination for selection and appointment as a trainee Pharmacist. At theclosing date of applications he was subject to a five year scholarship bond ofwhich she had to serve a balance period of one and a half months. The adver-tisement said that the prospective applicants should have served the full bondperiod.•_
The petitioner’s application was misplaced in the office of the Director -Generalof. Health Services. The petitioner submitted a fresh application and she wasissued an admission card to sit the examination. She was, however, not calledfor interview on the ground that at the time she made her application she hadnot completed the full period of her bond. Candidates who had secured lessmarks than the petitioner had been appointed to the post.
Held:
1. There was doubt as to the point of time for completing the bond ser-vice, viz., whether it was at the time of the closing of applications or at
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the dale of the written test or at the date of appointment.
2. In view of the above doubt and the legitimate expectation created bythe acceptance of the petitioner’s application and permitting her to sitthe test, the petitioner was entitled to an appointment. The denial ofan appointment was, in the circumstances unreasonable and arbitraryand violative of Article 12(1) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.Saliya Peiris with Upul Kumarapperuma for petitionerHarsha Fernando, State Counsel for respondents.
Cur.adv.vult
April 4, 2003.
J.A.N. DE SILVA, J.
The petitioner is a dispenser attached to the base hospital,Kahawatta. When her application alleging violation of fundamentalrights was supported in this court, leave to proceed was grantedunder Article 12(1) of the Constitution.
The petitioner was appointed to the post of dispenser witheffect from 3rd July 1995 subject to a probationary period of threeyears. She had been trained at the cost of the government for twoyears and in view of the said training her appointment has beensubjected to a bond for a period of five years i.e. from the 3rd ofJuly 1995 to 3rd of July 2000. Subsequently the petitioner has beenconfirmed in her post with effect from the 3rd of July 1995.
By an internal notice dated 24th April 2000 (P5) applicationswere called from the employees of the Health Department for train-ing programmes in several health sector services including trainingprogrammes for the posts of pharmacists. The notice stated thatapplications are called from those employees who have the neces-sary qualifications and satisfy the conditions as set out in thenotice. Paragraph 4 of P5 specifically stated that prospective appli-cants:
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should have completed three years in the Department;
been confirmed in their post;
and should have served the full bond period (for those whoare bonded).
In terms of the bond the petitioner had signed, after trainingit was obligatory for the petitioner to:
serve the Republic for a period of five years from the dateof appointment;
to be attached to the Department of Health;
as a dispenser.
The selections for trainee pharmacists were to be made upona written test followed by an interview. The notice calling for appli-cations was not specific whether the criteria as to the completion ofthe period of mandatory service should be as at the date of closingthe applications (19th of May 2000)or as at the date of the writtentest or as at the date of appointment.
The petitioner submitted two applications and the circum-stances under which it was done had been explained by her in heraffidavit. The first application had been submitted through theDistrict Medical Officer of Kahawatta. The written tests were sched-uled for the 30th of July 2000. Since the petitioner had not receivedher admission card she had written to the 2nd respondent (DeputyDirector of Health (Administration)). The 2nd respondent informedher that her application was forwarded to thelst respondent buthad been misplaced in the 1st respondent’s office. Subsequentlythe petitioner submitted a fresh application and she was issued anadmission card to sit the examination, which was held on the 30thof July 2000.
The petitioner was not called for the interview and had notbeen appointed to the post of pharmacist on the basis that she hadnot completed the 5 years of compulsory service stipulated in thebond signed by her at the time she made the application. It is to benoted that several others who had secured less marks than thepetitioner had been appointed to the said post but the sole reasonfor not appointing the petitioner had been that as at the closingdate of the applications she had yet to complete one and a halfmonths out of the period in the bond.
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The main issue in this application is to determine the relevantdate on which the eligibility criteria of the applicant need to be eval-uated.
The primary contention of the petitioner was that on thedate that she made the application she was under a bond but bythe time she sat the examination and when the selection wasdone the bond period had expired. The respondents on the otherhand have taken up the position that the notice (P5) specificallystated that the closing date was to be on 19.05.2000, by that datethe petitioner had not completed serving the bond period andtherefore she was disqualified even to apply to be a trainee phar-macist. As stated earlier the notice calling for applications was notspecific whether the criteria as to the completion of the period ofmandatory service should be as at the date of closing of the appli-cations or as at the date of the written test or as at the date ofappointment. The 1 st respondent in his affidavit has admitted thatthis lacuna is there in the notice (P5).
The petitioner contended that it was the duty of the respon-dents to specifically state the date on which the mandatory periodof five years should be calculated when calling for applications fortrainee pharmacists in the Health Department.
Learned counsel for the petitioner submitted that in terms ofthe Establishments Code there was a duty cast on the respondentsto scrutinize the applications and to be satisfied of their eligibility.By accepting the petitioner's application and permitting her to sit forthe written test they have given her a legitimate expectation thatupon her being successful at the examination and the interview,she will be selected to undergo the course of trainee pharmacists.It was further pointed out that the respondents could have verifiedthe qualifications stated in the application of the petitioner andcould have even rejected the application before calling for the writ-ten test, if the requirement was that the petitioner should havecompleted the required five years bond period as at the closingdate of the application.
The 1st respondent in his affidavit has taken up the positionthat the applicants were allowed to sit the examination on theassumption that the applicants have submitted the applications as
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they in their opinion had fulfilled and satisfied the necessary eligi-bility criteria.
The 1st respondent has also taken up the position that dueto “administrative reasons” and “time constraints” he could not con-sider all the applications in detail prior to the written examination.
The explanation given by the 1st respondent to say the leastis not worth putting down in writing. It is unsatisfactory and unac-ceptable. The mess in the administrative section of the HealthDepartment is clearly demonstrated when the respondents say thatthe petitioner’s first application had been misplaced in the officeand an admission card was issued to the petitioner on her secondapplication.
The 1st respondent cannot rely on what the petitioner oughtto have assumed but should necessarily state specifically therequirements in the notice calling for the eligibility criteria that wouldapply. By permitting the petitioner to sit the examination, it is therespondents who led the petitioner to believe that the relevant datefor meeting the criteria as to the bond was not earlier than the dateof examination.
During the course of the argument it was made known that interms of the agreement.(Bond P5), the petitioner could be dis-charged from the bond by repaying any amount, then due to thegovernment on account of expenses borne by the government inthe event of the resignation or change in her appointment. TheEstablishments Code which is applicable to government servantstoo recognizes this principle. Apart from the provisions in theEstablishments Code the documents submitted by the petitionertogether with her further affidavit in December 2002 indicate thatthere had also been a practice in the Health Department of addingthe undischarged period of the bond to the period of the secondbond.
The petitioner was not going to leave the government serviceor the Health Department and join another private institution. Shewas seeking to further her prospects within the government servicethus fulfilling the purpose for which the bond had been entered into.In these situations authorities should take a realistic view and adopta practical approach. The requirement that an applicant should
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have served the full bond period was not a condition relating to suit-ability, (such as qualifications, experience, past performance,seniority, examination performance etc.). It did not affect the com-petitiveness of one applicant vis a vis another. It was a bar toappointment, arising from an agreement between an applicant andthe State as employer, which could have been (a) waived by theState (b) recovered by payment as provided in the bond itself and(c) recovered by the substitution of an alternate obligation in a dif-ferent capacity as evidenced by practice. While generally eligibilitycriteria must be satisfied as at the closing date of applications, inthe circumstances of this case the failure to make express provi-sion to that effect, permitting the petitioner to sit for the writtenexamination and proved practice would have led the petitioner tobelieve that the condition of service had been satisfied or waived orsubstituted. Therefore I hold that by failing to select the petitioner tofollow the pharmacist training course the 1 st respondent acted arbi-trarily and unreasonably and thereby acted in violation of the equalprotection of the law guaranteed under Article 12(1) of theConstitution. The court is informed that the training course isscheduled to proceed till the end of the year. In the circumstancesI direct the 1 st respondent to permit the petitioner to follow the saidpharmacist course immediately if the petitioner so wishes. Howeverthe State is directed to pay Rs. 25,000/- (Rupees Twenty FiveThousand) as cost to the petitioner.
FERNANDO, J.-I agree.
YAPA, J.-I agree.
Relief granted.