002-SLLR-SLLR-2010-V-2-KULATUNGA-vs.-HON-LOKUBANDARA.pdf
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KULATUNGA VS. HON LOKUBANDARASUPREME COURTJ. A. N. DE SILVA. C. J.
AMARATUNGA, J. ANDIMAM, J.
S. C. (FR) APPLICATION NO. 229/2009FEBRUARY, 8™ 2010.
Constitution-Articles 12(1), 17 and 126 (2) – Infringement of Fundamen-tal Rights. – If a person alleges that his fundamental rights had beeninfringed or about to be infringed he shall file his application within onemonth thereof. – lex non cogit ad impossibilia.
The Petitioner invoked the jurisdiction of the Supreme Court allegingthat his fundamental rights guaranteed under Articles 12(1), 17 and126 of the Constitution had been violated.
At the hearing the Respondent took up a preliminary objection to theeffect that the application filed by the Petitioner was out of time in termsof Article 126 of the Constitution and moved for . the dismissal of thePetitioner’s Fundamental Rights application.
Held
The rule in Article 126 ofthe Constitution is applied strictly, howeverin a fit matter the Supreme Court may allow an application toproceed even though one month has lapsed from the date of theinfringement.
Cases referred to:
Gamaethige v. Siriwardene and Others [1988] 1 S.L.R. 384
Siriwardene v. Rodrigo [1986] 1 S.L.R. 384
Jayaweera v. National Film Corporation [1995] 2 S.L.R. 123
Ramanathan v. Tennakoon [1988] 2 CALR 187
Edirisuriya v. Navaratnam [1985] 1 S.L.R. 100
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Kulatunga vs. Hon Lokubandara
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APPLICATION for relief for infringement of fundamental rights.
S. A. Parathalingam, P.C. with Idroos for the Petitioner.
Manohara De Silva, P.C. with Ms. Pubuduni Wickremaratne for the 3rdRespondent.
Nerin Pulle, SSC for 2nd, 4th, 5th, 6th, and 9th Respondents.
Cur.adv.vu.lt.
July 02nd 2010
J.A. N. DE SILVA CJ.
The petitioner in this case was granted leave to proceedon the alleged violation of fundamental rights guaranteedunder Article 12(1) of the Constitution of the DemocraticSocialist Republic of Sri Lanka. Thereafter at the request ofboth parties several dates have been granted to explore thepossibility of settling the dispute between the petitioner andthe 3rd respondent.
This application relates to the filling of the vacancy of thepost of Director of Catering and House Keeping Services ofParliament of Sri Lanka.
The above post became vacant on the 12 th November2005. The 3rd respondent was appointed to act in the saidpost and he does so even today. The Secretary General ofParliament called for application for the said post by placingan advertisement in the Sunday Observer and Siluminapapers.
Several applicants responded to the above advertisementand four people were summoned for an interview on 7/4/2006including the petitioner and the 3rd re spondent. The compositionof the interview board was as follows: Former SecretaryGeneral of Parliament Mrs. P. Wijesekera – Chairperson.Assistant General Secretary (5th Respondent) Principal
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Ceylon Hotel School (7th Respondent) and Chief Executive Of-ficer of the Hotels Corporation (8th Respondent).
The marks had been awarded under the following criteriaat the said interview:-
Qualifications=20
Additional Qualifications=15
Experience=20
Personal Profile=30
Conduct 8s Testimonials=15
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On the basis of marks allotted at the interview, the boardhas not considered the petitioner to be the most suitableperson for the post in question, but has recommended the 3rdrespondent for the job. This is evident from the documentsmarked R 5 and R 5A. The Secretary General, who was theChairperson in her affidavit, has stated that marks were givenpurely on merit and not for any extraneous considerations.She has vehemently denied bias or manipulation on the partof the interview board in awarding marks at any stage of theinterview process. The petitioner not being satisfied with theinterview process and the outcome of the interview petitionedthe Presidential Investigation Unit alleging several misrep-resentations made by the 3rd respondent in his application.Presidential Investigation Unit has conducted an inquiry andsubmitted a report to the Hon. Speaker of the House witha copy to the Secretary General. Thereafter the SecretaryGeneral once again published a newspaper advertisement inthe Sunday Observer and Silumina on the 24th of Sep 2006calling for fresh applications for the said post.
When this happened the 3rd respondent invoked thejurisdiction of the Court of Appeal by way of a writ of
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Kulatunga vs. Hon Lokubandara
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certiorari quashing the decision of the Secretary Generalof Parliament to call for fresh applications for the post ofDirector Catering and Housekeeping Services of the Parliament.This writ application carried the No. CA 1551/2006. In thesame application he has also prayed for a writ of manda-mus directing the Secretary General of Parliament to appointhim to the post he was selected under Article 65 (3) of theConstitution. The Petitioner in the present application soughtto intervene in the said Court of Appeal writ application onthe basis that he was a necessary party.
However, on the 5th of December 2006 when the abovematter was taken up for support the learned counsel whoappeared for the Hon. Speaker and the Secretary General in-formed the Court of Appeal that there is a possibility of “anadministrative adjustment” and moved for an adjournment.On that day Court was informed that there was no settlementand the Court fixed the matter for support on 2nd February2007. Having heard all the parties the Court of Appeal quashedthe decision of the Secretary General of Parliament to call forfresh applications and indicated that the Hon. Speaker of theparliament is free to consider whether approval should begranted or not to appoint the 3rd respondent who was thepetitioner in the writ application. When the writ applicationbearing No. 1551/06 was pending in the Court of Appealthe petitioner in the instant case too filed a writ applicationbearing No. 69/2007 on the 17th of July 2006 praying interalia for a mandate in the nature of certiorari quashing thedecision of the interview panel from selecting and recom-mending the 3rd respondent. However, later in view of thedecision given by the Court of Appeal in writ application1551/07 the petitioner withdrew his application (C.A. Writ69/7) on 2/2/2007.
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On 3/7/2007 the petitioner invoked the jurisdictionof this Court alleging the violation of fundamental rightsguaranteed under Article 12(1) in terms of Article 17 and126 of the Constitution. At the hearing of this application allcounsel who appeared for the respondents took up apreliminary objection to the effect that the application of thepetitioner should be dismissed in limine as the petition of thepetitioner falls outside the stipulated time in terms of Article126 of the Constitution.
Article 126 of the Constitution reads as follows (“Whereany person alleges that any such fundamental right . . . hasbeen infringed or is about to be infringed by executive oradministrative action, he may. . . Within one month thereofapply to the Supreme Court by way of petition.”) TheSupreme Court has constantly held that this one month rule ismandatory. In Gamaethige vs. Siriwardene and others*1'Fernando J made the following observation “time beginsto run when the infringement takes place; if knowledge onthe part of the petitioner is required. . . . time beings to runonly when both infringement and knowledge exists. The pur-suit of other remedies judicial or administrative, does notprevent or interrupt the operation of time limit.” This rule hasbeen consistently applied by our Supreme Court in a numberof cases, e.g. Siriwardene vs. Rodrigd2), Jayaweera vs. NationalFilm Cooperation,3) and Ramanathan vs. Tennakonem.
It is to be noted that although this rule is generallyapplied strictly there sure certain very rare instances whereSupreme Court may allow an application to proceed eventhough one month has lapsed from the date of the in-fringement of the fundamental right of the petitioner. Inthe Case of Edirisuriya vs. NavaratnamlS) the SupremeCourt held that in a fit matter the court would entertain
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an application made after the lapse of the stipulated periodprovided an adequate excuse for the delay could be adducedby the petitioner. Such excuses include a situation wherethe petitioner has been held incommunicado, where theprinciple lex non cogit ad impossibilia would be applicable. It isclear from the facts narrated above the petitioner in this caseknew the historical developments of the events that led to theselection and recommendation of the 3rd respondent to thepost in question. The fact that he chose to seek a writ from theCourt of Appeal too demonstrate the knowledge on his part.The petitioner withdrew this writ application on 2.2.2007 andsubsequently after lapse of almost five months on 3.7.2007he sought to invoke the jurisdiction of this Court. It ispertinent to note that the petitioner has prayed for identicalrelief in Court of Appeal application No. 69/2007. I
I uphold the preliminary objection that this petition istime barred and the petition is dismissed without costs.
AMARATUNGA, J. -1 agree.
IMAM, J. -1 agree.
application dismised.