WANASINGHE vs. UNIVERSITY OF PERADENIYA AND OTHERS

034-SLLR-SLLR-2006-V-2-WANASINGHE-vs.-UNIVERSITY-OF-PERADENIYA-AND-OTHERS.pdf


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WANASINGHEVS.UNIVERSITY OF PERADENIYA AND OTHERSCOURT OF APPEALSRIPAVAN, J.
BASNAYAKE.J.
CA 1419/2004.
JUNE 2, 28. 2005.
JULY 18, 27, 2005.
Writ of Mandamus – Non-confirmation of appointment to a post – Conduct ofthe respondents – Mala Fides ?
The petitioner, President of the Citizens Movement for Good Governance filedan application to obtain redress for the 6th respondent and prayed for tworeliefs—
to confirm the 6th respondent with effect from 31.12.2002 and
promote him to the post of Senior Professor with effect at least from31.12.2002.
It was contended by the petitioner that the 6th respondent becomes eligible forconfirmation and promotion on or after 31.12.2002 but the respondents hadnot taken any steps to confirm/promote the 6th respondent.
HELD:
It is evident that the 2nd respondent did not wish the 6th respondent tobe confirmed in his post leave alone promote him as a Senior professor.
The only way to suspend the confirmation/promotion was to have someinquiry pending. Even after the conclusion of a proper inquiry, andexplanations were called for and no inquiries began, the allegationshung in the air.
The allegations made against the 6th respondent, did not appear tohave any basis and were never proved.
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Wanasinghe vs. University of Peradeniya and Others
(Eric Basnayake, J.)
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Per Eric Basnayake, J. :
“The conduct of the 2nd respondent in unnecessarily prolonging theconfirmation and that the non-promotion is due to the personal animosity isclearly perceivable and the 2nd respondent is personally responsible indelaying the legitimate dues of the 6th respondent.’
APPLICATION for a Writ of Mandamus.
Elmore Perera with Rasika Dissanayake for petitioners.
Yuresha de Silva, State Counsel for 1st to 4th and 7th respondent.
S. Jayawardane for 5th respondent.
6th respondent in person.
Cur.adv. vult.
December 7,2005.
ERIC BASNAYAKE, J.
This application was filed by the petitioners to obtain redress for the 6threspondent. The two main reliefs prayed for in the petition are
Prayer (d) to confirm the 6th respondent with effect from31.12.2002; and
Prayer (c) to promote him to the post of Senior Professor witheffect from at the very least, 31.12.2002.
The petitioner’s state that the 6th respondent is a highly qualified engineerwho has attained the following qualifications namely
B.Sc. Engineering (University of Ceylon, Katubedde Campus)
M.Sc. (University of London)
Ph. D. in Electrical Engineering (Carnegie Mellon University ofPittsburgh)
D.Sc. Engineering (University of London)
Fellow of the Institute of Electrical and Electronics Engineering.
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The 6th respondent had been holding the following positions namely
Asst. Professor of Electrical and Computer Engineering – Drexel
University-1984.
Same in Harvey Mudd College in Clare – mount -1987
Professor in Harvey Mudd in 1992.
Professor at I. F. S., Open University of Sri Lanka and University of
Ruhuna in 1997.
University of Peradeniya -31.12.1999.
By letter dated 17.12.1999 (P6) the 6th respondent was appointed asprofessor of Electrical and Electronic Engineering of the PeradeniyaUniversity (1st Respondent). The 6th respondent assumed his post on
This appointment was subject to a probation period of 3 yearsin terms of section 72 of the Universities Act as amended. He was placedat this post with five increments out of a maximum of 8 (Rs. 23,600 – 8 x550 – Rs. 28,000) and was placed at Rs. 26,350 P. M.
In terms of the Circular No. 723 of the University Grants Commission(P7), a Professor, on completion of 8 years of service, is eligible to becomea Senior Professor. The learned counsel for the 5th respondent (UniversityGrants Commission) in his written submissions admits that 8 years neednot be in a single Higher Educational Institution.
The 6th respondent had been working as Professor since 1992. If oneconsiders the 8 year period as professor, he would be completing it in theyear 2000. In the normal course, one would have to work for five years toget five annual increments. By giving 5 increments to the 6th respondent,the 6th respondent had been placed equally with one who had worked forfive years. By giving credit of 5 years, the 6th respondent would havecompleted 8 years on 31.12.2002 in the 1st respondent University itself.He would be completing his period of probation on 31.12.2002. By applyingthe above standards the 6th respondent becomes eligible for confirmationand promotion as Senior Professor on or after 31.12.2002.
On 10.12.2002 the 6th respondent had written to the 1 st RespondentUniversity (P10) requesting it to consider him for promotion to the post ofSenior Professor. Prior to this, an inquiry was initiated andMr. Harischandra Dunuwille, Attomey-at-Law was appointed on 21.07.2002
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(2R 1) to inquire in to the conduct of the 6th respondent. Mr. Dunuwille,after inquiry, made his order on 16.11.2002 (P 9) exonerating the 6threspondent of the charges. Mr. Dunuwille states that “the charge asformulated cannot be sustained as against Prof. Hoole as he had made noattempt to change his own entry. Mr. Dunuwille’s order was conveyed tothe 6th respondent 7 months after on 17.06.2003 (P12).
It was clear that the 1 st respondent was obliged to consider theconfirmation and the promotion of the 6th respondent any time after31.12.2002.
The U.S.A.B.
As the 1st respondent delayed the confirmation and the promotion the6th respondent made an appeal to the University Services Appeals Board.In answering to this petition of appeal the 2nd respondent stated on20.06.2003 as follows (6R 19)
“Regarding his confirmation the Council at its 304th meeting heldon 15.06.2002 decided not to consider his confirmation until thefindings of the inquiry are reported to the Council.
The findings of the inquiry were placed before the Council asstated in paragraph 5 of my answer, action has been taken toconsider his confirmation and as well as his promotion tothe grade of Senior Professor. The selection committee hasalready been nominated. Hence his confirmation and
promotion would be considered in due courseIn view of
the consideration I would respectfully request that the petitioner’s
• application be dismissed” (emphasis added).
On 24.02.2004 the Attorney-at-Law for the 1 st, 2nd and 3rd respondents
stated in the answer filed before the U.S.A.B. as follows
, .,v:(b) The question of confirming the Appellant in his present post andwhether he is qualified to be promoted to the rank of Senior Professorwould depend on a number of factors. These are as follows 1
(1)UGC Circular No. 3/2002 clearly spells out that a Professor whohas completed 8 years of service as a Professor may apply forthe post of Senior Professor;
2-CM 8100
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The Appellant was recruited to the post of Professor by theUniversity of Peradeniya by advertisement and in terms of thesaid Circular 3/2002 ; he had been placed on 5 steps on thesalary scale 23,600-8×550-28,000. Thus according to the saidcircular, the Appellant has automatically earned 5 years of therequired 8 years of service to qualify for the post of Senior Professor.
The balance period required to be completed by the Appellant is 3years, which are the 3 years of probation stipulated by clause 2 ofthe letter of appointment of the Appellant dated 17.12.1999.
Therefore if the said probationary period had been successfullycompleted without a blemish on the Appellant, he should havebeen promoted as Senior Professor by December 2003 (threeyears from 1999 ends in December, 2002).
However, the Council of the University at its meeting on 20.07.2002decided not to confirm the Appellant in his post, on account ofseveral acts of misconduct committed by the Appellant duringthe relevant period and as inquiries into these acts of misconducthad not been completed;
It ip important to note however, that there were no inquiries pending by24.02.2004 against the 6th respondent. The 2nd respondent admitted soon 20.06.2003 in 6R 19 (quoted above). However, it is interesting to notethat on 07.06.2004 an explanation was called to be tendered before20.06.2004, from the 6th respondent by the 2nd respondent (P15), failureof which would result in taking disciplinary action. A reply to this was senton 01.10.2004 (6 R11). This letter contains the heading “Charge Sheet”,No action was taken up to 09.12.2004. Again on 09.12.2004 another letter(6R 28) similar to the one dated 07.06.2004 was sent to the 6th respondentrequiring him to furnish an explanation prior to 31.12.2004. A reply to thiswas sent on 29.12.2004 (6R 29). Up to date no action has been takenagainst the 6th respondent. It may be that the 2nd respondent was satisfiedwith the explanation offered.
The U.S.A.B. on 11.01.2005 (6R 24) made their order asfollows As for his confirmation it is my view that
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once the Appellant had been exonerated from theallegations that were made against him and theprobationary period had been completed without blemish,he is entitled to be confirmed in his post… I am of theview that once he was exonerated from all theallegations against him he is entitled to confirmation inthe post as a person with an unblemished record.Accordingly I direct that the Appellant be confirmed inthe post with effect from 31.12.1999” (emphasis added).
On 03.11.2005 the State Attorney had filed some documents, declaringthat the 6th respondent was confirmed in his post as Professor at a Councilmeeting held on 06.08.2005. Anyhow this was not conveyed to the 6threspondent until 9th November, 2005.
The conduct of the 2nd respondentThis case was heard with regard to the confirmation and promotion ofthe 6th respondent in the University of Peradeniya. The petitioners soughta Writ of Mandamus against the respondents. Arguments on this casewere heard on 02.06.2005 and the case was fixed for written submissionsfor28.06.2005 and thereafter on 18.07.2005. Anyhow by 11.08.2005 writtensubmissions were filed only on behalf of the Petitioners, 5th and the 6threspondents. No written submissions were filed on behalf of 1 to 4 and 7threspondents. On 11.08.2005, this case was finally fixed for 02.09.2005 toenable the 7th respondent to file written submissions. One to fourrespondents too have not filed written submissions yet. On 02.09.2005when this case was called in open court, 1 to 4 respondents wererepresented. No written submissions were filed and hence the case wasfixed for judgment for 31.10.2005.
Apparently on 02.09.2005 the learned State Counsel had informed courtthat the 6th respondent had been confirmed and also that steps weretaken to promote him as Senior professor (this appears from a motion filedby the 6th respondent on 24.10.2005). Although the learned State Counselinformed court with regard to the confirmation and promotion, the 6threspondent filed an affidavit to the effect that he was informed of theconfirmation only on 09.11.2005 (the confirmation does not mention aneffective date). In view of the motion filed and the oral submissions made
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by the learned counsel a final opportunity was given to the learned StateCounsel to inform court in a definite manner as to the confirmation and thepromotion of the 6th respondent. No such document was furnished. Theonly document furnished was with regard to the confirmation without aneffective date.
Mala FideThat the conduct of the 2nd respondent in unnecessarily prolonging theconfirmation and the promotion is due to personal animosity is clearlyperceivable. The animosity could be seen when one examines the contentsand the tone of some of these documents (for eg., 6R1). It is evident thatthe 2nd respondent did not wish the 6th respondent to be confirmed in hispost leave alone promote him as a Senior Professor. The only way tosuspend the confirmation and the promotion was to have some inquirypending. Even after the conclusion of a proper inquiry, explanations werecalled for (P15 and 6R 28) and no inquiries begun. The allegations hung inthe air.
The following are few examples that would show the mala tides:
The intimation of the order exonerating the 6th respondent wasdelayed by 7 months ;
Explanations were called for (in the form of charge sheets) oneafter another, regarding the same events, without taking any stepsto hold an inquiry (P 15 and 6R28);
’ The order made by the U.S. A.B. was not implemented from January,2005;
Although the Council adopted minute in August, 2005 to confirmthe 6th respondent, this fact was not disclosed to the 6th respondentfor a period of nearly 3 months.
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The warnings given in the form of threats are not befitting people of thecaliber of Vice Chancellors and Professors. The 6th respondent appearsto be a highly qualified individual. The 2nd respondent himself hadacknowledged this, where he states on 20.06.2003 (6R 19) that “I admitthat he holds a higher doctorate and he was appointed to the post ofProfessor of Electrical and Electronics Engineering of the University, placedon a salary point 5 steps higher than the salary scale for a professor”. The6th respondent going before the U.S.A.B., Parliamentary Ombudsmanand challenging the reappointment of the 2nd respondent appeared to bethe reason for the 2nd respondent to adopt a hostile attitude towards the6th respondent. Anyhow the allegations made against the 6th respondentdid not appear to have any basis and were never proved. Therefore I am ofthe view that the 2nd respondent was personally responsible in delayingthe legitimate dues of the 6th respondent namely his confirmation and thepromotion. Both these were held up due to the baseless allegations. Theseallegations were so hopeless that after the court pronounced a date todeliver its judgment, attempts were made to bring about a settlement.Through out this case I have seen the dilatory tactics adopted by the 2ndrespondent in delaying the confirmation of the 6th respondent. There is noway that 6th respondent gets his promotion as Senior professor withoutfirst getting his confirmation. At the end the court was informed of theconfirmation again without an effective date. Therefore I make order toissue a writ of Mandamus on the 1 st to 4th respondents to confirm the 6threspondent with effect from 31.12.1999 on which date the 6th respondentassumed r«ice. I also direct to issue a writ of Mandamus on 1 to 4threspondents to promote the 6th respondent to the post of Senior Professorwith effect from 31 .12.^02 within one month from today. I also awardcosts payable to the 6th respondent by the 1 st respondent in a sum of Rs.50,000.
SRIPAVAN J. – / agree.
Application allowed.