017-SLLR-SLLR-2005-V-1-PATHIRAJA-vs.-MANNAPPERUMA-SECRETARY-MINISTRY-OF-PUBLIC-ADMINISTRATION-M.pdf
PATHIRAJA
V
MANNAPPERUMA, SECRETARYMINISTRY OF PUBLIC ADMINISTRATION, MANAGEMENTAND REFORMS AND OTHERS
SUPREME COURTYAPA.J.
UDALAGAMA.J.ANDDISSANAYAKE, JSC (FR) NO. 665/200331 ST AUGUST, 2004
Fundamental Rights – Training abroad without approval of the relevant Ministry-Chapter XII of the Establishments Code – Denial of promotion for absencefrom work without approval – Articles 12 (1) of the Constitution.
The petitioner who was a member of the Sri Lanka Administrative Service(Combined Service) was a Senior Assistant Secretary of the Ministry ofConstitutional Affairs at the relevant time. He applied through the Secretary of
ScPathiraja V. Mannaperuma,141
Secretary, Ministry of Public Administration And Others
142Sri Lanka Law Reports(2005) I Sri L. R.
his Ministry (3rd respondent) for a post graduate degree course in Scotlandand was selected.
The petitioner had to pay an initial deposit for the course which the ExternalResources Department refused to fund. Hence he left the country and qualifiedfor the degree utilizing his own funds.
On the petitioner’s return to the country he was deprived of a promotion due tothe fact -that he had been absent from work without leave approved by theSecretary, Ministry of Public Administration (1st respondent). Such leave wasrequired under section 14.3.1. of Chapter XII or section 1:3 of chapter XV of theEstablishments Code, whether the leave sought was for no pay or full paystudy leave abroad.
Held:
The petitioner went abroad without obtaining leave as required by theEstablishments Code.
In the circumstances denial of a promotion to the Petitioner was not aviolation of Article 12 (1) of the Constitution'.
The fact that the air ticket for one way only was sponsored by a Swisscontact was approved by the External Resources Department was not
. sufficient compliance with the requirements of Chapters XII or XV of theEstablishments Code.
Case referred to :
1. The Public Service United Nurses Union v Montague Jayawickrema,Minister of Public Administration and Others (1988) (1) SRI LR 229
APPLICATION for relief for infringement of fundamental rights.
Prinath Fernando for petitioner.
Rajive Goonetilake, State Counsel for 1s' respondent and Attorney – General
5cPathiraja V Mannapperuma, Secretary "143
Ministry of Public Administration and others (Udalagama, J.)
October 5, 2004UDALAGAMA, J.
The petitioner had been granted leave to proceed in respect of an allegedinfringement of fundamental rights to equality guaranteed under Article 12(1) of the Constitution.
The petitioner who joined the Sri Lanka Adminstrative Service in 1990was at the time he made this application, a Senior Assistant'Secretary of
. the Ministry of Constitutional Affairs.
' /
The petitioner having come to know of the availability of a Post GraduateDegree course in the University of Glasgow, Scotland, leading to anInternational Masters Degree in Business Administration applied throughthe 3rd respondent, the Secretary, Ministry of Constitutional Affairs andappears to have been selected, vide the contents of document marked P6filed of record. Paragraph 2 of the aforesaid P6 requests the petitioner toremit Post Graduate fees as specified therein and the petitioner furtherinformed that latter’s position is not guaranteed until payment is so made.
Although the petitioner had requested the External ResourcesDepartment to provide funds to enable him to follow the aforesaid coursethe request was turned down by P7 which refusal had been acknowledgedacknowledged by the petitioner as apparent from the contents of paragraph12 of the petition.
It is also apparent that the petitioner did proceed to follow the PostGraduate course referred to above utilizing his own funds.
Having completed the said course which included a subsequentextention the petitioner admittedly reported back to his Ministry.
When the petitioner was due for promotion to the Sri Lanka AdminstrativeService Class II, Grade I, and duly made an application to be consideredfor the said post, the petitioner’s aforesaid application was refused onthe basis of his absence from work without duly approved leave. Thisrefusal in turn, admittedly caused a loss of seniority thereby depriving thepetitioner of his promotion.
144Sri Lanka Law Reports(2005) 1 Sri L. R.
That the petitioner was requested to obtain proper approval from theSecretary of the Ministry of Public Administration to follow the aforesaidcourse with full study leave as provided for by section 14:3:1 of Chapter XIIof the Establishment Code which reads as follows: “the prior permission ofthe Secretary to the Ministry of Public Administration should be obtainedin the case of an officer in the Combined Services” is manifest.
That the aforsaid provision applies to the petitioner is also beyondquestion as Chapter 1 of the Establishment Code defines the Sri LankaAdrpinstrative service to be encompassed in the combined services.
That, the petitioner would in anyevent .be entitled to, under the presentcircumstances, to full pay study leave only in accordance with the provisonsof section 1:5:1: or 1: 5:2 in Chapter XV of the Establishment Code andthe grant of leave, determined by sections 14,15 and 16 of Chapter XII ofthe Code, is also unambiguous. The fact that the petitioner failed to obtainfull pay leave as provided for under the aforesaid provisions of the Code isuncontroverted.
As stated above section 14:3:3 mandates that the petitioner shouldhave obtained the prior permission of the Secretary to the Ministry ofPublic Administration which admittedly the petitioner had failed to do forwhatever reasons. At most the petitioner had travelled overseas with theapproval of the Secretary of his own Ministry and without the prior permissionof the Secretary to the Ministry of Public Administration which responsibilitycast on the petitioner was also admittedly shirked by the petitioner asevident from the contents of paragraph 4 of P19, a letter made under thehand of the petitioner dated 14.08.2003 and filed of record.
The learned Counsel for the. petitioner’s submission that thepetitioner’s air ticket to travel abroad, which incidentally appears to be aticket for one way only was sponsored by a Swiss contact and approvedby the External Resources Department which position, would satisfysection 14:1:4: of Chapter XII has to be rejected as the mere success ofobtaining funding for an air ticket and approval thereto would not amount toa scholarship offered by a foreign Agency or a foreign Government asenvisaged by terms of section 1:5:1 or 1:5:2: of chapter XV of theEstablishment Code.
Palhiraja V Mannapperuma, Secretary! 45
Ministry of Public Administration and others (Udalagama, J.)
It must also be emphasized that as held in Public Services UnitedNurses Union vs. Ministry of Public Adminstration,in provisions of theEstablishment Code have statutory force.
Accordingly, the petitioner having failed to obtain a foreign fundedscholarship or a Government sponsored course of study for training abroadand having in this instance significantly failed as provided by section 14:1of Chapter XII of the Establishement Code to obtain the prior permissionof the Seretary to the Ministry of Public Administration in accordance withthe provison of section 14:3 and specifically section 14: 3:1 to leave theIsland for study or training abroad and also considering importantly theadverse administrative precedents that would be created in the event ofthe granting of relief as prayed for by the petitioner, I would hold that the. petitioner has failed in establishing the violation of his fundamental rightsguaranteed under Article 12 (1) of the Constitution.
This application is accordingly dismissed but in all the circumstanceswithout costs.'
YAPA, J.- I agree
DISSANAYAKA, J.- I agreeApplication dissmissed.