PERERA AND NINE OTHERS v. MONETARY BOARD OF THE CENTRAL BANK OF SR

002-SLLR-SLLR-1994-V1-PERERA-AND-NINE-OTHERS-v.-MONETARY-BOARD-OF-THE-CENTRAL-BANK-OF-SR.pdf


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PERERA AND NINE OTHERS
v.
MONETARY BOARD OF THE CENTRAL BANK OF SRI LANKA& TWENTY-TWO OTHERS
SUPREME COURTAMERASINGHE, J.
WADUGODAPITIYA, J. ANDWIJETUNGA, J.
SC APPLICATIONS (F/R) NO. 246/9316 NOVEMBER 1993 AND 26 JULY 1994
Fundamental Rights -Discrimination – Article 12(1) of the Constitution -Application of Government Circulars to Central Bank – Power of recruitment -Promotion – Criteria – Seniority, merit, academic or professional qualifications,general awareness, capacity to identify a problem and respond to it, analyticalskills – Equal treatment – Scheme of Recruitment – Scheme of Promotion – Needto publish schemes – Adoption of ad hoc criteria – Section 10 of the MonetaryLaw- Right to recruit ancillary staff- Burden of proof.
The ten petitioner and the 11th to 22nd respondents are employees of the CentralBank of Sri Lanka . The petitioners alleged that their fundamental right to equalityguaranteed by Article 12(1) of the Constitution was violated by the appointment ofthe 11th to 22nd respondents as Staff Class Grade 1 Officers. The 1st respondentis the Central Bank of Sri Lanka, a body corporate created by the Monetary Law.Act No. 58 of 1949. It had been decided that 84 officers were required in thelowest, staff grade class, namely Staff Class Grade 1. The selection was to bethrough two schemes: 26 persons through a scheme of recruitment applicable torankers and 58 on a competitive accelerated scheme. The criteria in the Schemesof Promotion in the Central Bank and relevant salary scales were formulated bythe Monetary Board and circularised but not two amendments to it of dates10.01.89 and 16.01.90. There was no mention in the Scheme of criteria for thepromotion of non-staff class officers in the higher grade, the highest grade in thenon-staff class, namely Non-Staff Class (NSC) Grade 5. Four of the petitionerswere in NSC 5 and were interviewed. The two amendments to the Schemeprovided for the promotion of staff assistants with a stipulated minimum period ofconfirmed service to Staff Class Grade. Under this NSC Grades 4 and 5 weremade eligible. But staff assistants were not mentioned in the original scheme andthere was no decision of the Monetary Board in regard to the mode of theirappointment.
HeM:
There was no general rejection of Public Administration Circulars by theMonetary Board.
sc
Perera and Nine Others v Monetary Board of the
Central Bank of Sri Lanka & Twenty-two Others
153
Institutions which require ancillary staff must be empowered by provisionssuch as section 10 of the Monetary Law Act to make recruitment. In the absenceof such a provision, a statutory creature, such as the Central Bank, would nothave the legal capacity to recruit ancillary staff at all. It is a necessary authority. Itdoes not therefore follow, that the powers of recruitment are unlimited. The CentralBank, like any other institution or person, must comply with the law, includingArticle 12 of the Constitution, in the formulation of its schemes of promotion and inthe selection process.
Institutions, whether public or private are juristic persons created for theachievement of certain objects, Those who are entrusted with the obligation ofensuring that the objects of the institution are achieved, are empowered, as theBoard was in this case by section 10 of the Monetary Law Act, to engage theservices of ancillary staff to help them in fulfilling their duty.
Those responsible for the achievement of the objects of the institution,particularly a sizeable institution, would classify its ancillary staff according tosome method or system founded on intelligible differentia which distinguishpersons grouped together from others left out of each group, the attributes whichdistinguish those grouped together having a rational relation to the object soughtto be achieved by the recruitment to each class. At whatever level, it would beexpected that persons whose services are engaged in each group or sub-groupare, in terms of knowledge, skills and aptitude, suited to the circumstances ofemployment in each class. The search for such persons is ordinarily likely to bemost successful if there is an opportunity of choosing from several persons whopossess the requisite minimum qualities and qualifications. Eligible persons couldoffer themselves for consideration only if they have an opportunity of doing so -usually by public advertisement or personal notification to eligible persons.Usually, either in the document calling for applications, or in a separateinstrument to which a prospective applicant has access, such as a publishedscheme of recruitment, there would be information with regard to the nature of theduties to be performed, the minimum knowledge, skills, experience expected,and how these qualities and qualifications are to be established. Among otherthings it will give legitimate grounds for rejecting an unqualified applicant,provided of course, the criteria of eligibility were rational. The announcement ofthe way in which the eventual selection will be made will also serve as anassurance that the selection process is not a false, outward show, but an honestattempt to select the best person for the post. Unless negotiable and soannounced, usually the terms and conditions of employment would also beannounced so that, on the one hand, persons who are eligible may apply with aclear understanding of what they may expect if they are selected, and on theother that the contractual obligations are identified and provided for.
Recruitment – whether to create a new class or to add to or keep up thenumber of a class of employees – may be either by way of promotion of persons
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already in employment in other classes or by the addition of others who are notalready serving the institution. There may well be more than one scheme ofrecruitment even within a class of employment, reflecting the need to balancerelevant factors irrthe recruitment process. Where several factors are to beconsidered e.g. seniority, merit, academic or professional qualifications, no hardand fast rules can be laid in advance as to what is adequate weightage for thisfactor or that. It is a matter to be decided having regard to the exigencies of eachcase.
Eventually the guiding factor is the achievement of the goals of theinstitution within the framework of the law. and at every stage of the selectionprocess, from the determination of the need for the services of a particular type ofofficer and numbers in each class, through the determination of the relevantqualifications for eligibility, to the selection of a candidate: those who areentrusted with the task of the achievement of the goals of the institution mustnecessarily have a discretion because it is they who are responsible andaccountable for the success or failure of the institution. In the exercise of theirdiscretion, they have both a right and a duty to discriminate so that the objects ofthe institution as set out in the instrument of creation may be achieved:Distinctions are regarded as permissible because they are necessary to selectthose who are necessary and best suited for the performance of specific tasks.On the question of cadre they may decide that different numbers of officers arerequired for each post. On the question of eligibility they may distinguish betweenthe various qualifications and qualities.
The use of description involves discernment: Selection is not a merematter of fancy, whim or caprice. Distinctions must not be invidious or biased andthere must be no favouritism or partiality. The selected person must be fit andsuitable and qualify for appointment in terms of the formulated criteria and inaccordance with the prescribed mode of verification of those criteria.
And so, while the burden of proving that Article 12 of the Constitutionwas violated lies upon a petitioner, the burden of adducing evidence to show thatthe discrimination made was rational and justifiable lies on those who had theauthority to do so, and made the distinctions. Decisions must be supported byevidence. If persons were appointed in terms of a scheme of recruitment thescheme must be produced and explained in terms of the need for the post andthe nexus between the work to be performed and the criteria for selection. If theselections were based on an examination the marks must be produced, if oninterview on a group basis the marks earned under each criterion of selectionmust be produced. If at the interview the marking was on an individual basis themarks given by each member of the panel to each candidate under each of theselection criteria should be made available.
sc
Perera and Nine Others v. Monetary Board of the
Central Bank of Sri Lanka & Twenty-two Others
155
Transparency in recruitment proceedings would go a long way inachieving public expectations of equal treatment. In order to ensure that justice isdone and seen to be done, it is at least desirable that cadres, the criteria forselection – for instance by the publication of marks obtained – be made known tothose concerned.
(to) Equal treatment is a fundamental right guaranteed by the Constitution.For example those who were both able, by reason of their demonstrable fitness toperform the functions of the post, and willing to serve in accordance with the jobdescription formulated in accordance with the needs of the institution, and inaccordance with the terms and conditions of employment, but were not providedwith the opportunity of offering their services, are entitled to complain that theywere not called upon to apply when other similarly – placed persons were calledupon to apply. Persons are entitled to complain if they were unfairly disqualifiedbecause the scheme of recruitment was not based on intelligible differentia; theattributes prescribed for eligibility, having no rational relation to the object ofrecruitment; they are entitled to complain if they were invidiously or arbitrarilytreated by or in the selection process. The essence of their complaint would bethat their right to equality guaranteed by Article 12 of the Constitution has beenviolated.
Per Amerasinghe J:
"A scheme of promotion must be justifiable in its formulation and just in itsapplication. The law insists on justice and this, among other things, means that inthe exercise of authority or power there must be just conduct. In the exercise ofthe power of recruitment, just conduct entails the even – handed treatment ofIhose who might be affected by the exercise of a power."
Whether in the recruitment of Staff Class Grade officers or others, it is inthe interests of the Bank, from the points of view of selecting the best availableperson, maintaining industrial peace and retaining public confidence to adhere toobjective standards.
The non-publication of the two modifications to the earlier publicizedSchemes ol Promotion was unsatisfactory. It was more than unsatisfactory that theselections were made by reference to ad hoc, undisclosed criteria which were notdecided upon or at least ratified by the Monetary Board. The way in which thepromotions were made by the respondents cannot be understood by examiningthe announced scheme read with the unannounced amendments made by theBoard, How the final selection was made remains a mystery for the marksobtained at the interview were not disclosed. What was there wasunintelligibleness and obscurity, a lack of openness and candour, an effectivead hoc undoing of the directions of the Board.
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To have treated NSC Grade 4 and the higher grade NSC Grade 5officers equally overlooked the fact that treating inequals equally was unjust andviolative of Article 12 (1) of the Constitution. Grade 5 officers had a legitimate andreasonable expectation that, if they were not to be regarded as superior byreason of. their Grade, they would at least be treated as equals of those in thelower grade. Grade 5 officers had come to the top of the non-staff class not asflotsam and jetsam of the non-staff class.
Xhe Bank had failed to show what criteria were adopted in the past by(a) the Preliminary Interview Committee (b) the Second Interview Committee, and(c) the Board at the third and final interview or that criteria existed at all.
Having set its own standards ad hoc, the interview panel did not adhereto it but had to zig-zag its way, arbitrarily, avoiding its own criteria, to be able toappoint certain persons.
If Grade 5 officers had been relegated to a class beyond which theycould not ascend, they should not have been called for interviews. They were notaware of this. They were disappointed and perplexed by the selection of the 1 tthto 22nd respondents who were non-staff class grade 4 officers, personscomparatively inferior in rank, in preference to them. The exclusion of Grade 5officers as a class was not mentioned until the Court proceedings. There was norational basis for the exclusion of Grade 5 officers.
The selection by a single interview Panel (and not on a final selection bythe Monetary Board on second interview) was an ad hoc departure from theBoard's own scheme which required three interviews. The duration of the singleinterview was five minutes and the questioning was haphazard and evensometimes irrelevant. The selections were therefore not made after sufficient andcareful consideration but arbitrarily.
Promotion is a reward which after careful consideration, for sufficientreasons is declared to be merited and earned. It is not simply a matter ol goodfortune.
The criteria for evaluation at the interview were uncertain and vague andnot announced.
(20) How seniority for which 25% of the marks were allocated, was assessedhas not been established by the Bank and selections were not consistent withseniority. Nor was it clear that merit was taken into account. The supposedapplication of criteria namely academic/professional qualification, generalawareness, capacity to identify a problem and responding to it, analytical skills,could not have been adequately evaluated by the Interview Committee in the timeavailable to it and having regard to the questions asked at the interview.
Perera and Nine Others v. Monetary Board of the
SCCentral Bank of Sri Lanka & Twenty-two Others (Ameraslnghe, J.)157
(21) The selection of the 11th to 22nd respondents in preference to thepetitioners was in violation of Article 12(1) of the Constitution and theappointments of the 11th to 22nd respondents to Staff Class Grade 1 were of noforce or avail and null and void.
Application for relief for violation of Fundamental Right of equality guaranteedby Article 12(1) of the Constitution,
Faiz Mustapha PC with Dr. Jayampathy Wickremaratne for Petitioners
A. S. M. Perera DSG for 1st – 10th Respondents.
Curadv. vult.
November 1st, 1994AMERASINGHE, J.
EXPLANATION OF THE DELAY IN DISPOSING OF THEMATTEROn 2nd April, 1993, in an application under Article 126 of theConstitution, the ten petitioners, alleged that the fundamental rightsguaranteed to them by Article 12(1) of the Constitution were violated.The prayer of the petitioners that they be permitted leave to proceedwas granted by this Court on 13th May, 1993. However, in theinterests of the on-going relationship between the first respondent, asemployer, and the petitioners as employees, the Court referred thematter to the Commission for the Elimination of Discrimination andMonitoring of Fundamental Rights to explore the possibility of theresolution of the matter by mediation, By its communication dated10th August, 1993 the Commission reported a negative outcome. Thematter was fixed for argument on 16th November, 1993. On that datea Bench of the Court comprising Amerasinghe, Wadugodapitiya andWijetunga, JJ., heard the submissions of Mr. Faiz Musthapha, P.C., forthe petitioners, and a part of the submissions of Mr. A. S. M. Perera,Deputy Solicitor-General, for the respondents, and due to the fact thatthe calendar of constituted Benches at that time did not enable theCourt to resume the hearing during the current term, the resumptionof hearing was postponed for 9th February, 1994. However, due tothe ill-health of my brother Wadugodapitiya J. on that day, the mattercould not be taken up and the Court ordered that the matter be
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resumed on 13th May, 1994. On that date the matter was listed forhearing before G. P. S. de Silva, CJ. and Kulatunga and RamanathanJJ. and it was ordered that the resumed hearing before the Judgeswho had heard a part of the matter should take place on 26th July,1994. And so the hearing commenced on 16th November, 1993 wasconcluded only on 26th July, 1994.
THE COMPLAINT AND THE PARTIES:The ten petitioners and the 11th to 22nd respondents areemployees of the Central Bank of Sri Lanka. The petitioners allegethat their fundamental right to equality guaranteed by Article 12(1) ofthe Constitution was violated by the appointment of the 11th to 22ndrespondents as Staff-Class Grade 1 Officers.
The first respondent is the Central Bank of Sri Lanka, a bodycorporate created by the Monetary Law Act No. 58 of 1949. TheChairman and Governor of the Bank is the second respondent. Thethird and fourth respondents are members of the Board. The fifthrespondent is the Deputy-Governor of the Bank. The sixth, seventh,eighth and ninth respondents are Executive Directors of the Bank.The tenth respondent is the Director of Establishments of the Bank.The eleventh to the twenty-second respondents are persons whowere selected in preference to the ten petitioners. The Attorney-General is named as the twenty-third respondent in terms of Rule 44(1) (b) of the Supreme Court Rules, 1990.
THE APPLICABILITY OF GOVERNMENT DIRECTIVESThe petitioners maintained that the Monetary Board was bound bythe directives of the Government, and that had the guidelines set outin the Public Administration Circulars No. 15/90 dated 9th March,1990, No. 5/90 (1) dated 25th March, 1990, 15/90 (ii) dated 15thJune, 1990 and the communication of the decision of the Cabinet ofMinisters on 12th June. 1991 by the Secretary, Ministry of PublicAdministration, Provincial Councils and Home Affairs dated 20th July,1991 been followed, they, rather than the 11th – 22nd respondents,would have been selected.
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Perera and Nine Others v. Monetary Board of the
Central Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)
159
In paragraph 22 of his affidavit Mr. Easparanathan, an ExecutiveDirector of the Bank who is the sixth respondent in theseproceedings, firmly states that "Public Administration Circulars do notapply to the Central Bank in view of the provisions contained inSection 10 of the Monetary Board Act No. 58 of 1949 as amended."
According to P14 (Minutes of meetings the Governor had with theCentral Bank Employees Union on 17th July, 1992), when the matterof promotions in accordance with the Public Administration Circularof 9th March, 1990 was raised, the Director of Establishments (thetenth respondent) had explained that it was “difficult" to apply theCircular retrospectively and that "clarifications" had been sought fromthe Ministry of Public Administration “as to the manner in which theprovisions of the Circular should be implemented with retrospectiveeffect and the Ministry of Public Administration has in turn consultedthe Attorney-General for which no response has been received so far.It was agreed to review the matter."
When the Deputy-Governor, the fifth respondent, Mr.Easparanathan, the sixth respondent, and other representatives of theBank on 2nd September, 1992 (see pp. 3-4 of P11), were requestedby the Union's representatives to promote the candidates who werecalled for interviews on the basis of examinations held in 1989 underthe accelerated promotions scheme to Staff Class Grade 1 in termsof Public Administration Circular dated 9th March, 1990, the positionof the representatives of the Bank was not that Public AdministrationCirculars were inapplicable, but that the “Circular was not applicableto the issue in question in view of the fact that it was issued after theappointments were made." The process for those selections, it waspointed out, had been commenced towards the end of 1989, beforethe Circular was issued. The Deputy-Governor is reported to have"added that legal opinion was being obtained in this connection."(Vide P11 at page 4). The Union had referred to the meeting they hadon 1st September, 1992 with the Governor of the Bank (the secondrespondent) on this matter when, according to the minutes recordedand issued by the Bank (P11 page 3), the Governor had said that"the request of the Union may be considered step by step."
And so there was no general rejection of Public AdministrationCirculars. The problem was merely with regard to the application of a
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particular circular in the special circumstances of the case, As aGovernment institution, surely the Bank might be reasonablyexpected in the matter of recruitment to be guided by Governmentdirectives unless expressly exempted? It is not necessary for thedetermination of this matter and therefore I make no decision on thatmatter. I have referred to this because of the fact that it was raised bythe petitioners as a matter of importance and dealt with by learnedCounsel on both sides.
LIMITATIONS ON THE POWER OF RECRUITMENTThe learned Deputy Solicitor-General submitted that the Bank hadstatutory authority in terms of section 10 of the Monetary Law torecruit staff and was free to determine what staff it required and theright to select staff according to its discretion in terms of its ownschemes of recruitment. The power of recruitment was central to theissues in this case, and since it appears to have beenmisunderstood, some explanation is necessary.
Institutions which require ancillary staff must be empowered byprovisions such as section 10 of the Monetary Law to makerecruitments. In the absence of such a provision, a statutory creature,such as the Central Bank, would not have the legal capacity to recruitancillary staff at all. It is a necessary authority. It does not thereforefollow, that the powers of recruitment are unlimited.
The Central Bank, like any other institution or person, must complywith the law, including Article 12 of the Constitution, in the formulationof its schemes of promotion and in the selection process. Noinstitution, no person, natural or juristic is above the law. Section 10 ofthe Monetary Law creates no exception.
Institutions, whether public or private, are juristic persons createdfor the achievement of certain objects. Since they are incapable offunctioning unaided by human intervention, certain natural personsare entrusted with the obligation of ensuring that the objects of theinstitution are achieved. As it often happens, especially where theobjects of the institution are complex or numerous or many-sided, asin the case of the Bank, it would be impossible for the few persons
Perera and Nine Others v. Monetary Board of the
SC Central Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)161
entrusted with the task of achieving the institution’s objects, such asthe members of the Monetary Board in this case, to do all the workthemselves. The assistance of other people may be necessary. Andso, those who are entrusted with the obligation of ensuring that theobjects of the institution are achieved, are empowered, as the Boardwas in this case by section 10 of the Monetary Law Act, to engagethe services of ancillary staff to help them in fulfilling their duty. As theschemes of recruitment of the Bank (P1 and P4) show, various sortsof supportive staff, ranging from persons designated by the bank inP1 as “Minor Employees” and in P4 as “Labourers", to Heads ofDepartments in the Staff Class Grades, were required by the Bank.
What sorts of supportive staff are necessary, and the requirednumbers of each kind, are matters to be decided by the personsentrusted with the obligation of ensuring that the objects of theinstitution are achieved, for it is they who must plan a course of actionfor the achievement of the objects of the institution and be heldaccountable for its success or failure.
The work of ancillary staff may range from the performance ofsimple tasks, requiring little or no special knowledge or skills, to theservices of persons whose esoteric knowledge and exceptional skillsare appropriate to an inner circle of disciplines. Those responsible forthe achievement of the objects of the institution, particularly a sizableinstitution, would classify its ancillary staff according to some methodor system founded on intelligible differentia which distinguishpersons grouped together from others left out of each group, theattributes which distinguish those grouped together having a rationalrelation to the object sought to be achieved by the recruitment toeach class. At whatever level, it would be expected that personswhose services are engaged in each group or sub-group are, interms of knowledge, skills and aptitude, suited to the circumstancesof employment in each class.
The immediate object of obtaining assistance in the performanceof certain functions with the view to the achievement of the ultimatepurpose of the exercise of the power of employment, namely theachievement of the goals of the institution, is most likely to beachieved by choosing the best available person.
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The search for such a person is ordinarily likely to be mostsuccessful if there is an opportunity of choosing from several personswho possess the requisite minimum qualities and qualifications.
Eligible persons could offer themselves for consideration only ifthey have an opportunity of doing so. Such an opportunity wouldusually be afforded by way of public advertisement or personalnotification to eligible persons. In the case before us, eligible personswere by individual letters addressed to them, invited to presentthemselves at an interview.
Usually, either in the document calling for applications, or in aseparate instrument to which a prospective applicant has access,such as a published scheme of recruitment, there would beinformation with regard to the nature of the duties to be performed,the minimum knowledge, skills, experience expected, and how thesequalities and qualifications are to be established (e.g. a degree ordiploma and/or work in a certain capacity and/or at a certain level ofperformance and/or for a minimum period of time and/orperformance at an interview and/or at a written examination). Themaking, known of these matters serve many purposes: Among otherthings, it will indicate whether a person is qualified and dissuade himfrom applying if he is not, and at the same time give legitimategrounds for rejecting an unqualified applicant, provided of course,the criteria of eligibility were rational. It will also serve to give notice toapplicants as to what evidence of fitness they would need to adduceand what preparations they may need to make in proving theirfitness. This may include the obtaining of certificates and/or theundertaking of studies, depending on the manner in which fitness isto be established. The announcement of the way in which theeventual selection will be made will also serve as an assurance thatthe selection process is not a false, outward show, but an honestattempt to select the best person for the post, for those who wish toapply might be reasonably expected to do so only if they feelconfident that there is a genuine search for the fittest person and nota masquerade resulting in a waste of time and effort. It is also aconstraint on those who have been empowered to employ ancillarystaff to act in good faith and effectively in the discharge of theirobligations towards the advancement of the objects of the institution
Perora and Nina Others v. Monetary Board of the
SCCentral Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)163
whose destinies have been placed in their hands by selecting thebest available person. Unless negotiable and so announced, usuallythe terms and conditions of employment would also be announcedso that, on the one hand, persons who are eligible may apply with aclear understanding of what they may expect if they are selected,and on the other that the contractual obligations of the institution areidentified and provided for.
Recruitment – whether to create a new class or to add to or keepup the number of a class of employees – may be either by way ofpromotion of persons already in employment in other classes or bythe addition of others who are not already senring the institution. Nodoubt, in the formulation of schemes of recruitment, due regard mightbe paid to various factors: For instance, the desirability of theinjection of "new blood" to increase or re-invigorate the services of aclass might need to be weighed against the value of the services ofthose who had already been occupied in the study and/or practice ofthe affairs of the institution as employees and were thereforeexperienced hands. As between serving officers, it might benecessary to decide whether one should be selected in preference toanother as being senior by reason of earlier entrance to the service ofthe institution or earlier appointment to a Grade or post, and/or onaccount of the person concerned deserving well because of theexcellence of his past performance and/or the worth the man’squalities and/or academic and professional qualifications. In order toencourage serving officers to better equip themselves, recognitionmay need to be given for the acquisition of additional skills and/oracademic and/or professional qualifications while in service. Theremay well be more than one scheme of recruitment even within a classof employment, reflecting the need to balance relevant factors in therecruitment process. Where several factors are to be considered, e.g.seniority, merit, academic or professional qualifications, no hard andfast rules can be laid down in advance as to what is adequateweightage for this factor or that. It is a matter to be decided havingregard to the exigencies of each case.
Eventually the guiding factor is the achievement of the goals ofthe institution within the framework of the law, and at every stage ofthe selection process, from the determination of the need for the
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services of a particular type of officer and numbers in each class,through the determination of the relevant qualifications for eligibility,to the selection of a candidate, those who are entrusted with the taskof the achievement of the goals of the institution must necessarilyhave a discretion, for, as I have said before, and say again for thesake of emphasis, it is they who are responsible and accountable forthe success or failure of the institution.
In the exercise of their discretion, they have both a right and dutyto discriminate so that the objects of the institution as set out in theinstrument of creation may be achieved: Distinctions are regarded aspermissible because they are necessary to enable those burdenedwith the responsibility of achieving the objects of the institution toselect those who are necessary and best suited for the performanceof specific tasks. On the question of cadre, they may decide thatdifferent numbers of officers are required for each post, dependingon the type of work required to be performed, qualified by relevantfactors such as the financial resources of the institution to engage theservices of optimum numbers. On the question of eligibility, they maydistinguish between the various qualifications and qualities thatevidence the competence, aptitude and suitability of a person to dowhat he is expected to do. They must be related to the purpose orpurposes of recruitment. As between persons satisfying the minimumprescribed conditions of eligibility, they may select only the bestavailable.
The use of discretion involves discernment: Selection is not a merematter of fancy, whim or caprice. Distinctions must not be invidious orbiased: Persons who are excluded in a scheme of recruitment or inthe selection process must not be excluded on account of their beinglooked upon with an evil eye. Persons who are selected should notbe chosen on account of favouritism or partiality. A justifiableselection cannot be one that is accidental or fortuitous or directedad hoc to the preference of a certain person, arbitrarily, dependenton the absolute exercise of the will and pleasure or mere opinion orhumour of those who make the selections. The selected person mustbe fit and suitable and qualify for appointment in terms of theformulated criteria and in accordance with the prescribed mode ofverification of those criteria.
Perera and Nine Others v. Monetary Board of the
SC Central Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)165
And so, while the burden of proving that Article 12 of theConstitution was violated lies upon a petitioner, the burden ofadducing evidence to show that the discrimination made was rationaland justifiable lies on those who had the authority to do so, and madethe distinctions; for if distinctions were drawn, it is they who can bestexplain why they were made in the discharge of their duties and inthe exercise of their powers. If challenged in proceedings of thisnature, they should account for their decisions and unfold thereasons for their decisions which must be plain and intelligible andunderstandable. Decisions must be supported by evidence. Forexample, if it is said that persons were appointed in terms of ascheme of recruitment, the scheme should be produced andexplained in terms of the need for the post and the nexus betweenthe work to be performed and the criteria for selection. If it is said thatselections were made on the basis of an examination, the marksearned by each candidate should be produced. If persons wereselected on the basis of an interview, there should be evidence ofhow many marks were earned by each candidate under eachcriterion of selection, if the marking was on a group basis; or ifmarking was on an individual basis, the marks given by eachmember of the panel to each candidate under each of the selectioncriteria should be made available.
From the point of view of the satisfactory performance of specifictasks, the implications of the failure of those in charge to dischargetheir responsibilities of ensuring the selection of the best person for arequired task Is obvious enough. But the matter does not end there.The failure to make justifiable selections may also frustrate theobjects of the institution in other ways.
The achievement of the goals of an institution would partly dependon the existence of industrial peace, and contentment would, in asignificant measure, depend on satisfaction that the employer wasfair. As far as the Bank was concerned, the situation, it seems, wasfar from well. The minutes of the meeting held on 17th July betweenthe Governor and Employees Union (P14) show that there wasexpressed dissatisfaction with regard to the failure of the Bank topublicize its schemes of recruitment, the Union alleging thatpromotions had been made “according to the whims and fancies of
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the management" and that there had been a violation of thefundamental rights of employees in making certain promotions. TheGovernor had agreed that “there should be some transparency inConfidential Report markings” and that "the Confidential Reportmarking scheme should be reviewed" and that "the percentagesystem of marking employees should be done away with." TheGovernor had given the assurance that improvements of theschemes would take place “wherever possible" and that the “Unionwill be consulted before their implementation."
There are also civic responsibilities to be considered. For instance,if society is to be purged of and freed from the related evils ofcorruption, nepotism and favouritism, public institutions embarkingon executive or administrative action in terms of Article 126(1) of theConstitution must be clear of inequalities and/or unevenness.Transparency in recruitment proceedings would go' a long way inachieving public expectations of equal treatment. The selection of aperson must be viewed as a serious matter requiring athoroughgoing consideration of the need for the services of an officer,and a clear formulation of both the basic qualities and qualificationsnecessary to perform the services, and the way in which suchqualities and qualifications are to be established, in order to ensurethat justice is done and seen to be done, it is at least desirable thatcadres, the criteria for selection, the method of selection and theeventual basis for selection – for instance by the publication of marksobtained – be made known to those concerned. Ideally, the wholeprocess from the determination of the cadre to selection must beeasily recognized and seen through, if not obvious. A selectionprocess veiled in secrecy and not openly avowed and expressed isat least open to the suspicion of the existence of something evil orwrong. It is of a questionable character.
There is much more than a question of poor management; there ismuch more than a misuse of the power of recruitment and adisregard of civic responsibilities when schemes of recruitment or theprocess of selection are unconstitutional. Equal treatment is afundamental right guaranteed by the Constitution. For instance, andthese are only some examples, those who were both able, by reasonof their demonstrable fitness to perform the functions of the post, and
Perara and Nine Others v. Monetary Board of the
SC Central Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)167
willing to serve in accordance with the job description formulated inaccordance with the needs of the institution, and in accordance withthe terms and conditions of employment, but were not provided withthe opportunity of offering their services, are entitled to complain thatthey were not called upon to apply when other, similarly – placedpersons were called upon to apply; persons are entitled to complainif they were unfairly disqualified because the scheme of recruitmentwas not based on intelligible differentia, the attributes prescribed foreligibility, having no rational relation to the object of recruitment; theyare entitled to complain if they were invidiously or arbitrarily treatedby or in the selection process. The essence of their complaint wouldbe that their right to equality guaranteed by Article 12(1) of theConstitution has been violated. Article 12(1) of the Constitutionprovides that "All persons are equal before the law and are entitled tothe equal protection of the law.”
For the reasons I have explained, while recognizing the need forthose entrusted with the management of an institution like the CentralBank to have the power of recruitment of ancillary staff and adiscretion in the matter of selection, I am unable to agree with thesuggestion of the learned Deputy Solicitor-General that the power isabsolute, uncontrolled and unlimited: The liberty or power must beexercised within the limits allowed by law. A scheme of promotionmust be justifiable in its formulation and just in its application. The lawinsists on justice and this, among other things, means that in theexercise of authority or power there must be just conduct. In theexercise of the power of recruitment, just conduct entails the even-handed treatment of those who might be affected by the exercise of apower.
The learned Deputy Solicitor-General submitted that it was “not inthe best interests of the Bank” to adopt objective criteria in theselection of Staff Class Grade Officers. The selection of such officersshould, he submitted, be left in the hands of senior officers of theBank who, as "responsible people”, could be trusted in evolving theirown standards of selection and in choosing the best persons. I amunable to agree with the learned Deputy Solicitor-General. Whether inthe recruitment of Staff Class Grade Officers or others, it is in the
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interests of the Bank, from the points of view of selecting the bestavailable person, maintaining industrial peace and retaining publicconfidence to adhere to objective standards. Otherwise, the selectionprocess is likely to degenerate into something akin to a lottery ratherthan being, as it should be, the exercise of sound judgment within thebounds of rational and justifiable criteria.
CADRE AND METHODS OF SUPPLY WERE UNCERTAINThe first step in a recruitment process is the decision that a certainnumber of persons are necessary to perform certain specific tasks.According to the learned Deputy Solicitor-General, it had beendecided that eighty-four officers were required in the lowest. StaffGrade class, namely, Staff-Class Grade 1. It had also, he said, beendecided by the Bank that the selection for those posts should takeplace through two schemes: Twenty-six persons would be chosenthrough a scheme of recruitment applicable to officers he describedas “rankers”, and fifty-eight in terms of a “competitive acceleratedscheme."
Was this so?
In paragraph II of his affidavit, Executive Director Easparanathanstates that 26 vacancies were to be filled by “Non Staff Class Officerswho are promoted under the ordinary scheme of promotion … thebalance 58 vacancies were to be filled by those internal candidateswho qualify under the accelerated scheme of promotions andexternally qualified candidates."
The petitioners maintained that there were three schemes to fill 93posts: 55 to be filled by “Direct recruitment", 12 in terms of the■Accelerated promotional Scheme" and 26 by “In-ServicePromotions."
Neither the cadre of Staff Class Grade I officers nor the number ofpersons to be recruited through each of the several schemes can beascertained from the Scheme of Recruitment P4 as amended by R1and R2.
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SCCentral Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)169
THE “RANKERS” – “IN-SERVICE” – “ORDINARY” – SCHEMEONLY RELEVANT IN THIS CASEWhether there were three types of recruitment, namely, (a) Directrecruitment, (b) accelerated promotion and (c) “in-service'* or‘ordinary’ promotions, as suggested by the petitioners, or two as thelearned Deputy Solicitor-General submitted, needs no furtherconsideration: It was acknowledged on all hands that the complaintin the matter before us related only to the so-called "rankers’ scheme- the "in-service" “ordinary” promotions to twenty-six posts. I shallassume that the twenty-six recruitments of “rankers" were based on ademonstrable need determined by the Bank for good, thoughundisclosed, reasons. This is of importance to the order I make withregard to the filling of vacancies, for I so do holding the bank asbeing committed to its decision on the question of cadre.
WHICH “RANKERS” – “IN-SERVICE” – “ORDINARY” -SCHEME?There was one advertised scheme dated 15th February 1973 (P4)and another advertised scheme dated 03 February 1993 (P1).
The petitioners submit that, since the Monetary Board on 12thJanuary 1993 (Vide P1 at page 11, General, 1) said that, “where theexisting promotional schemes are changed, the effective date underthe revised scheme will be 01/01/93”, the selections announced on15th March, 1993 (P8), which they challenge in these proceedings,were, and ought to have been in terms of P1, since the existingpromotional scheme set out in P4 as amended was changed by P1.
On the other hand, the respondents say that the selections inquestion, although announced on 15th March, 1993, were made interms of P4. Mr. Easparanathan, an Executive Director of the Bank, inparagraph 6 of his affidavit, explains that the selection of officers inthe recruitment in question was based on P4 as amended by thedecisions of the Monetary Board dated 10th January 1989 and 16thJanuary 1990, since the selection process in question wascommenced in 1992: The eligibility of candidates he says had beendetermined by the Establishments Committee on 30th July, 1992 and
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that their recommendations had been approved by the MonetaryBoard on 4th September, 1992; letters inviting eligible candidates forinterview had been issued on 28th December, 1992. The interviewswere held prior to the date on which the new scheme was approvedby the Board, namely, 12th January 1993, although the selectionswere announced after that date.
Although the petitioners challenge the validity of the promotion ofthe eleventh to the twenty-second respondents in preference to them,assuming that the effective scheme of recruitment was set out in Pi.and indicating infirmities in the scheme set out in P1 and itsapplicability and application, they state that even if the applicablescheme was that set out in P4 as amended by R1 and R2, it wasirrational, and in any event not adhered to, and that the selectionswere arbitrary and violative of Article 12(1) of the Constitution. It issufficient for me to dispose of this matter on the basis of therespondents' position that the recruitments were in terms of P4 asamended, although in view of the Bank's announcement that theeffective date of operation of P1 was 1st January 1993, in theabsence of the explanation made by the Bank in these proceedings,they had, at the time of filling the petition in the matter before us, avery good reason to suppose that appointments made on and afterthat date were governed by P1.
THE RELEVANT PROVISIONS OF THE APPLICABLE SCHEMEDocument P4 (as amended), which the respondents dependupon, sets out “criteria” in the "Schemes of Promotion in the CentralBank” and the relevant salary scales at various levels.
Before we consider the amendments brought about by R1 dated10th January, 1989, and R2 dated 16th January 1990, let us see whatP4 contained in its original form with regard to the promotion of Non-Staff Class Officers to Staff Class Grade 1. It is as follows:
(10) NON-STAFF CLASS GRADE 4 TO STAFF CLASS GRADE 1Criteria – (a) In the case of Clerks and Cashiers after a minimum offour years service in the Grade, and on receipt of a
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consolidated salary of not less than Rs. 700/- ifvacancies exist in Staff Class Grade 1.
In the case of stenographers and typists {providedthey acquire a level of competence in shorthandadequate for the requirements of the Bank) in the Non-Staff Class Grade 4, the service qualification forconsideration for promotion to Staff Class Grade 1 beof an excellent record of 4 years' service in Non-StaffClass Grade 4. On promotion to Staff Class Grade 1they may be categorized as ‘Personal Secretaries'.
Officers who had been recruited to the Non-Staff Classas stenographers, typists, accounting machineoperators, comptometer machine operators and othermachine operators but who have with Bank approvalceased to perform such functions for a number ofyears and who have since been performingsupervisory or senior clerical or senior cashierfunctions, will, on completion of 6 years’ very goodservice in the Staff Assistants Grade, be eligible forconsideration for appointment to the Staff Class,subject to the usual requirements of suitability.
Salary scales:
Accelerated Promotion from Non-Staff to Staff Class(1} Promotions to Staff Class on the basis of high academicqualifications (as distinct from promotions in the normal course onminimum service qualifications in the Staff Assistants’ Grade (viz. aminimum of 4 years)).
Promotions to Staff Class would not be automaticallyconsidered on the acquisition of a post-graduate qualification or of afirst degree with at least a second lower even where the University isrecognized and the field of study is useful to the Bank.
All such cases would be considered along with outside
recruits.
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Candidates who do not have a good first degree would stillbe eligible for consideration if they had in addition to an ordinarypass degree in the special field of study useful to the Bank, a post-graduate degree from a University recognized by the Bank and in afield of study deemed to be useful to the Bank.
All candidates will be interviewed by the Board beforepromotion to Staff Class can be considered.
Non-Staff Class Officers with a Degree in a special subject,useful to the Bank or the A.I.B. (London) qualification or the FinalExamination conducted by the Bankers’ Training Institute (Ceylon)and who had at least 10 years' experience are eligible forconsideration for Staff Class appointments with outside candidates.
(i) Officers in the Non-Staff Class who have completed 7 years'
service in the Bank, and who pass the Final Examination ofA.I.B. or B.T.I. with distinctions in two subjects, with anexcellent record of service during the previous five years; and
(ii) Officers in the Non-Staff Class who have completed 7 years’service in the Bank and who obtain a Degree in a specialsubject useful to the Bank, with a very good record of serviceduring the previous five years;
will be eligible for consideration for Staff Class Grade 1 appointmentin competition with outside candidates.
Non-Staff Class Officers who obtain a Second Class lowerdegree or a higher degree in subjects useful to the Bank while in theservice of the Bank, would be eligible for consideration by the Board(independently of outside recruitment) for appointment to the StaffClass after Five years’ good Service in the Bank.
THE AMENDMENT OF THE SCHEME IN P4 BY R1According to document R1, dated 10.01.1989, on the question of"recruitment of officers to Staff Class I (on probation) and promotionto Staff Class Grade 1", the Monetary Board at meeting No. 1/89"approved of the following":
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the requirements pertaining to the recruitment of officers toStaff Class Grade 1 viz.,
Special Degree with First or Second Class (Upper Division)Honours from a recognized University in either Economics,Commerce, Business Administration, Accountancy,Mathematics, Statistics, Computer Science, Engineering,Sociology, Political Science, Law, Agriculture, Geography,History, Physics or Chemistry.
OR
General Degree with First or Second Class (Upper Division)Honours from a recognized University with Economics,Commerce, Accountancy. Mathematics. Statistics, ComputerScience. Sociology. Political Science. Geography, History,Physics or Chemistry.
OR
A Post-graduate Degree from a recognized University in any ofthe subjects referred to at (i) above;
OR
Graduates with progressively responsible experience of notless than five years in an executive post in a CommercialBank;
OR
All parts of the Examination of the Chartered Institute of Costand Management Accountants;
OR
All parts of the Examination of the Institute of CharteredAccountants.
the procedure relating to promotions of Staff Assistants toStaff Class Grade 1 is set out below.
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The Establishments Committee to take into consideration therecord of service, work, conduct, attendance and punctualityof officers who have completed 4 years confirmed service inNon-Staff Class Grade 4 and of officers in Non-Staff ClassGrade 5 and to recommend candidates for interview by aPreliminary Interview Committee nominated by the Governorfor the purpose.
A Second Interview Committee nominated by the Governorinterviewing those recommended by the Preliminary InterviewCommittee and recommend candidates for interview by theMonetary Board.
The Monetary Board to interview those recommended by theSecond Interview Committee and selecting those who areconsidered fit for promotion to Staff Class.
THE AMENDMENT OF THE SCHEME IN P4 AND R1 BY R2According to R2, dated 16.01.1990, the Monetary Board at itsmeeting 2/90,
“In modification of its decision taken at Meeting No. 1/89 of1989.01.10 as set out at Paragraph (b) (i) of Item 6, approval of theEstablishments Committee taking into consideration the record ofservice, work, conduct, attendance and punctuality of officers whohave completed 6 years confirmed service in Non-Staff Class Grade4 and Non-Staff Class Grade 5. and to recommend candidates forinterview by a Preliminary Interview Committee nominated by theGovernor for the purpose."
AMENDMENTS IN R1 AND R2 NOT PUBUCIZEDAlthough P4 was said by the Respondents to be the applicablescheme, R1 and R2 which significantly modified P4, were notpublicized. They were filed in these proceedings by the respondentsand stamped as “Confidential” documents on “Minute" papers of theMonetary Board communicating Board decisions to the Director ofEstablishments. On the other hand P4 and P1 were circulated to
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Heads of Departments and Regional Managers who were directed tobring the contents of P4 and P1 to the notice of all employees in theirrespective departments or regional offices.
If a Scheme of Recruitment is publicized, it is to be expected as amatter of reasonableness and fairness that the modification of such ascheme should also be publicized. Otherwise the known schemewould be misleading. The respondents failed to explain why R1 andR2 were not publicized, and exposed the Bank to the criticism thatthe modified recruitment procedures were kept secret because theywere irrational, ad hoc and arbitrary, resulting in the disqualificationand exclusion of the petitioners unfairly in contravention of theirconstitutional right to equality of treatment in the selection process.The only response of the learned Deputy Solicitor-General was that itwould have been "fairer" to have publicized the scheme ofrecruitment, but, he submitted, "that was not the test". Admittedly,there are other ways also for judging fairness, but publicity would,among other things, have enabled the petitioners and anyoneconcerned, to see for themselves how justifiable was the modifiedscheme and how just was its application.
PROMOTIONS NOT EXPLICABLE BY REFERENCE TO P4, R1AND R2 ALONEFor the reasons I have given, it was unsatisfactory that themodifications of P4 by R1 and R2 by the Board were not publicized. Itis more than unsatisfactory that the selections were made byreference to ad hoc, undisclosed, criteria which were not decidedupon or at least ratified by the Board. It is the Monetary Board that isstatutorily empowered to employ ancillary staff. If the schemes ofrecruitment determined by the Board required modification in thelight of discussions the representatives of the Bank had with theUnions, or in the opinion of the Governor, or other officers of theBank, the modifications should have been made, or at least ratified,by the Board which formulated the scheme in P4 in pursuance of itspower of recruitment. The Board did not, and could not, abdicate itsresponsibility, and there was no authority and no justification forothers to usurp its functions.
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Even at this stage one can only understand the recruitmentprocess in question with difficulty and without special accuracy, albeitsufficiently, for the purposes of determining this matter. The way inwhich the promotions were made by the respondents cannot beunderstood by merely examining the announced scheme in P4 readwith the unannounced amendments made by the Board in R1 andR2. One may only have a sufficient understanding of the selectionprocess by additionally considering P7, a letter dated 3rd March1993 addressed by the petitioners to the Bank and P15 the replydated 12th April 1993; the minutes of meetings between therepresentatives of the Unions and the Bank; the affidavit of theExecutive Director of the Bank, the petition and affidavits of thepetitioners; the written submissions of the Attorney-at-Law on behalfof the 1st to 10th respondents; the written submissions of theAttorney-at-Law for the petitioners; the summary of submissionsmade on behalf of the petitioners; and the oral submissions ofCounsel for the petitioners and respondents. How the final selectionwas made remains a mystery, for the marks obtained at the interviewwere not disclosed by the Bank which has chosen to make a secretof the justification for its preference of the 11th to 22nd respondentsto the petitioners. There was certainly a lack of what the Governor, athis meeting with the Unions on 17th July 1992 (P14) felicitouslydescribed as 'transparency’. What we have instead isunintelligibleness and obscurity, a lack of openness and candour, aneffective ad hoc undoing of the directions of the Board, and thethwarting and frustration of the expressed good intentions of theGovernor on the question of transparency.
(10) P4 DID NOT REFER TO NON-STAFF GRADE OFFICERS INGRADE 5
While paragraph 10 of P4 sets out the 'criteria" for the promotionof Non-Staff Class Officers in Grade 4 to Staff Class Grade 1, P4makes no mention at all of criteria for the promotion of Non-StaffClass Officers in the higher grade, the highest Grade in the Non-StaffClass, namely Non-Staff Class (NSC) Grade 5. In paragraph 17 of hisaffidavit the Executive Director admits that all the petitioners, andthese include the NSC Grade 5 Officers, "were summoned to present
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themselves for an interview.” In paragraph 5 of his affidavit theExecutive Director refers to “letters inviting the eligible candidates forinterviews" which had been issued on 28th December 1992, Four ofthe petitioners – G. F, L. Perera. K. M. P. Wijekoon, R. S. Liyanage andT. H. Wickramasinghe were NSC Grade 5 officers. (See paragraph 2of the affidavit of the first and tenth petitioners dated 2nd April 1993).Executive Director Easparanathan, in paragraph 3 of his affidavitdated 16th August 1993, admits that four of the petitioners were inNSC Grade 5. There is no denial of the fact that G. F. L. Perera,Wijekoon, Liyanage and Wickremasinghe were interviewed and thatthey were the NSC Grade 5 Officers referred to by the ExecutiveDirector.
If, as the respondents maintain, P4 was the applicable schemewhich sets out 'criteria’, then by reference to what criteria were theNSC Grade 5 officers summoned for interview when P4 does notmention NSC Grade 5 Officers at all?
POSSIBLY NSC GRAOE 5 OFFICERS WERE ELIGIBLE INTERMS OF THE AMENDMENT OF P4 BY R1 AND R2, BUTWHO WERE ‘STAFF ASSISTANTS’?
Although P4 does not refer to officers in NSC Grade 5, paragraph(b) of R1 provides that in the matter of the promotion of “StaffAssistants" to Staff-Class Grade 1, the Establishments Committeeshould recommend for interview non-staff grade officers in Grade 4as well as Grade 5 who had completed four years of confirmedservice, taking into consideration their record of service, work,conduct, attendance and punctuality. R2 modified that procedure tothe extent of stipulating that NSC Grade 4 and 5 officers should havecompleted six, instead of four years of confirmed service,recognizing again the eligibility of NSC Grade 5 officers for promotionto Staff Class Grade 1.
There is no mention of "Staff Assistants" as a separate class in thehierarchical scheme set out in P4. However, they did exist at the timeP4 was formulated and continued to exist at the time of thepromotions in question, P4 in paragraph 10(c) refers to the eligibility
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of persons in the “Staff Assistants Grade” {sic.) for promotion to StaffClass Grade 1. Reference is made to the designation andappointment of Staff Assistants at a meeting held on 24th October1992 between representatives of the Trade Unions and the Governor,Deputy Governor, Executive Director Easparanathan, and othersrepresenting the Bank. (See P10).
Who were they? No decision of the Monetary Board was submittedwith regard to the mode of appointment of Staff Assistants. In termsof paragraph 10(c), Non-Staff Class Officers who had been recruitedas stenographers, typists, accounting machine operators,comptometer machine operators and other machine operators butwho. with the approval of the Bank, had ceased to perform suchfunctions for a number of years and who had since been performing'supervisory or senior clerical or senior cashier functions” would "oncompletion of 6 years very good service in the Staff AssistantsGrade, be eligible for consideration for appointment to the StaffClass, subject to the usual requirements of suitability." It would seemthat at one time Staff Assistants would have been performing eithersupervisory functions or senior clerical or senior cashier functions.
t
'Staff Assistants" were, in terms of a discussion between theemployee Unions and representatives of the Bank (See P10), onlynon-Staff Grade IV officers entrusted with supervisory, asdistinguished from clerical functions, selected on the basis of 50%seniority and 50% performance. The Selection criteria agreed to at anearlier meeting between the representatives of the Union and theDeputy Governor. Executive Director Easparanathan and otherrepresentatives of the Bank on 2nd September 1992 (See P11) hadbeen 50% for length of service in the Grade, 40% for performance,10% for educational qualifications (i.e., Degree. BTI, AIB). TheGovernor removed the 10% weightage for educational qualifications.The removal of the 10%, it is explained in the Minutes, was to obviatea duplicated consideration of educational qualifications, which hadalready been taken into account in earlier promotions.
The position of 'Staff Assistant” conferred advantages in thematter of promotion to the Staff Class Grade I. Paragraph 10 (C) of P4
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made "completion of 6 years very good service in the Staff ClassGrade" (meaning Staff Assistant, and recognizing, perhaps, that theywere performing staff grade functions?) as a criterion of eligibility forpromotion from Non-Staff Class Grade 4 to Staff Class Grade 1. Ithad been agreed at the meeting on 24 October (P10) that in thematter of promotions of NSC Grade 4 officers to Staff Class Grade 1,“in the computation of marks for seniority additional marks forseniority (one point per year) will be given to the experience gainedin the post of Staff Assistant."
Presumably, since all persons summoned for interview in terms ofthe promotional scheme P4 as modified by R1 and R2 were deemedto be “eligible", as the Executive Director says in his affidavit, inaccordance with the criteria laid down by the Monetary Board in R1(b) and R2, they ought in the first place to have been “StaffAssistants". Otherwise P4 as modified by R1 and R2 which related tothe promotion of “Staff Assistants” to Staff-Class Grade 1 Staff Gradeserving in either Grade 4 or 5 of the non-Staff Class (see especiallyR1(b) has no relevance at all to the recruitments in question.
The first, second, fifth and seventh petitioners were NSC Grade 5officers, whereas the 11th to 22nd respondents were in NSC Grade 4.The view expressed by the Union that NSC Grade 5 officers shouldbe separately treated and promoted was rejected by the Bank’srepresentatives. Non-Staff Class Grade 4 and 5 officers were to beconsidered together. The view of the Bank, expressed by the DeputyGovernor at the interview with the Union on 2nd September 1992,was that the promotion of NSC Grade V officers could be consideredunder “existing criteria”, meaning presumably the criteria set out inR1 and R2. Assuming that the 11th – 22nd respondents were ‘StaffAssistants', it does not follow that all Staff Assistants were in the sameGrade. The reference to “Staff Assistants Grade” in paragraph 10(c)of P4 was a misnomer. It was not a “Grade” but a work relateddesignation of persons who may have belonged to either Grade 4 of5 of the Bank's classification of employees. Persons in Grade 5 wereofficers promoted from Grade 4 if they had completed 25 years ofservice in the Bank with at least 10 years of “very good” service inGrade 4. (See paragraph 7 of Mr. Easparanathan's affidavit). Four ofthe petitioners were in NSC Grade 5 while the other petitioners and
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each of the 11th – 22nd respondents were in NSC Grade 4. TheMinutes of the meeting between the Governor and otherrepresentatives of the Bank and the Trade Unions on 24 October1992 (P10) confirms the fact that NSC Grade 4 officers may havebeen designated as ‘Staff Assistants."
In my view a procedure in terms of which all Staff Assistants wereto be judged by the same criteria was flawed, for NSC Grade 5officers were, in terms of the Bank's hierarchical classification of Non-Staff Class officers, as explained by the Executive Director inparagraph 7 of his affidavit, superior in rank to NSC Grade 4 officers;and, therefore, to have treated NSC Grade 4 and NSC Grade 5officers equally overlooked the fact that treating unequals equallywas unjust and violative of Article 12(1) of the Constitution.
WAS BELONGING TO NSC GRADE S A DISQUALIFICATION ?
Strange as it may seem, the position of the respondents was thatNSC Grade 5 officers were not superior, but for the purposes ofpromotion, deemed to be inferior to NSC Grade 4 officers.
The learned Deputy Solicitor-General said that NSC Grade 5officers were persons who were beyond the pale; they were placed inNSC Grade 5, which was in terms of gradation admittedly higher thanNSC Grade 4, but simply because they were people who could nolonger “develop and progress". They were, he suggested, permittedas a matter of tolerance to vegetate at the top of the non-staff classlevel, physically present, but leading more or less, a useless life asfar as the Bank was concerned.
Learned Counsel for the petitioners responded that ‘if they are noteligible to be in service, their services should be terminated." I
I do not agree with learned Counsel for the petitioners. Theservices of the NSC Grade 5 officers may have been adequate toperform the services they were called upon to perform in NSC Grade5. There is no dispute with regard to that; and therefore theconclusion that if they were unfit, their services should have beenterminated is unwarranted. The question is with regard to their
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eligibility to perform other functions at a higher level, and why G. F. L.Perera, Wijekoon, Liyanage and Wickramasinghe – who were NSCGrade 5 officers – were summoned for interview as being, as theExecutive Director says, “eligible", if they did not deserve to beconsidered as fit and proper or desirable or suitable to be chosen forservice in the next higher group, namely, the staff-class? The factthat, having regard to the available vacancies, only the best of thosewho were eligible were selected, is another matter.
That in the selection process certain individuals who happened tobe in a higher grade were found for good and established reasons tobe less suitable is understandable, assuming that it was proper totreat them alike in determining eligibility. But there must be rationalcriteria for differentiating between NSC Grade 5 officers as a classand other eligible candidates. By reference to what criteria were theyexcluded from promotion as a class? There is nothing in the schemesof promotion P4 or R1 and R2 indicating that NSC Grade 5 officers assuch were unsuitable. There is nothing in the reply of the Bank R3dated 12th April 1993, in response to the protest of the petitioners P7dated 3rd March 1993, indicating that NSC Grade 5 officers were tobe shut out of consideration. Were they informed that although theyhad been summoned merely because they had crossed thethreshold of eligibility as determined by the EstablishmentsCommittee and approved by the Board, there was no hope ofsuccess? They were not. On the other hand, at the interview on 2ndSeptember 1992 (P11), when the Union suggested that NSC Grade 5be scrapped and that the officers in NSC Grade 5 be promoted toStaff Class Grade 1, the Deputy-Governor had said that “the requestcannot be acceded to and promotion of the above officers could beconsidered under existing criteria". At the interview on 24th October1992 (P10) it was recognized that “All NSC officers who havecompleted 4 years in NSC Grade IV and officers in NSC Grade V willbe eligible for consideration for promotion to Staff Class Grade 1 onthe decision of a Committee or by an interview.” Grade 5 officerstherefore had a legitimate and reasonable expectation that, if theywere not to be regarded as superior by reason of their Grade,they would at least be treated as the equals of those in the lowerGrade.
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As we shall see, those who were recommended by theEstablishments Committee for interview and accepted as ‘eligible’ bythe Board, and these included the Grade 5 officers, were selectedbecause they achieved a very high standard of excellence at the fiveannual evaluations preceding the date on which their eligibility wasdetermined. They were summoned because they were, as we shallsee, rated by the Establishments Committee as “Outstanding”officers.
In paragraph 7 of his affidavit, the Executive Director of the BankStates that “the criteria for promotion from Non-Staff Class Grade 4 toNon-Staff Grade 5 is 25 years of service in the Bank with at least 10years of very good service in Non-Staff Grade 4. The promotions areeffected subject to availability of cadre vacancies."
Grade 5 Officers were certainly not as it were the flotsam andjetsam of the Non-Staff Class as suggested by the learned DeputySolicitor-General.
Moreover, NSC Grade 5 officers, G. F. L. Perera, K. M. P. Wijekoon,R. S. Liyanage and T. H. Wickramasinghe were Staff Assistants.Presumably, like the other Staff Assistants, they were so designatedbecause they deserved in terms of seniority and merit to be placedabove other Non-Staff Class Grade officers. That is what thediscussions between the representatives of the Bank and the Unionssuggest. (Cf. P11.)
The petitioners in their affidavit dated 5th October 1993, inresponse to the Executive Director's affidavit, deny that there was acadre in respect of Grade 5 officers. No evidence has been placedbefore us by the respondents to support the position of the ExecutiveDirector that there was a complement of officers determined by theBoard to serve in Grade 5 within the framework of a scheme. Therewas certainly no cadre for Non-Staff Class Grade 4 {See the Minutesof the Meeting between the Deputy-Governor and otherrepresentatives of the Bank, including Executive DirectorEasparanathan, with the Employees' Union on 2nd September 1992,P11). One may, in the absence of evidence to the contrary, assumethat there was no cadre in respect of Grade 5 employees as well. It is
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not a necessary inference, but one that is reasonable. Such aninference is further evidence in support of the petitioners' positionthat the Bank was acting arbitrarily in the matter of recruitment.However, the more important matter with regard to the questionpresently under consideration is that the Executive Director does notsupport the view of the learned Deputy Solicitor-General that personswere placed in Grade S because they were undeserving of furtherconsideration. The evidence indicates that they were promoted toGrade 5 because they deserved well, both on account of length ofservice and excellence of their performance and worth of theirqualities.
THE FAILURE AT PREVIOUS INTERVIEWS AS A CRITERIONFOR ELIMINATIONWere Grade 5 officers regarded as “chronic” cases for otherreasons? In paragraph 31 of the affidavit of the Executive Director ofthe Bank, it is stated that “All the petitioners were persons who hadbeen considered at similar interviews for promotion from Non-staffGrade to Staff Grade on several prior instances but had not beenpromoted on those occasions. A list setting out the number ofoccasions on which these several petitioners had faced interviewsearlier is annexed herewith marked R6."
The document referred to is R7 and not R6.
What does the Executive Director mean by "similar interviews”?The Scheme of Promotion relied upon by the respondents requiredthree interviews. The selections in question were based on a singleinterview. “Similar" to which of the several interviews? It was certainlynot similar to the final interviews held earlier where the interview panelwas differently constituted.
The interview was not ‘similar’ in the way in which the interviewpanel was constituted. In what other way was it 'similar'?
The Executive Director, in paragraph 8 of his affidavit, states that“where more than one interview was held for the purpose ofpromotions there was a process of elimination of candidates at eachinterview.”
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What were the criteria adopted in the past by (a) the PreliminaryInterview Committee (b) the Second Interview Committee and (c) theBoard at the third and final interview, in deciding on elimination andselection? The Bank has failed to show that such criteria wereannounced or that they existed at all. In the circumstances, there isno way of ascertaining whether, if at all, and in what respects thelatest interview was “similar" to those held earlier.
If the latest interview led to arbitrary selections because of theabsence of certain criteria to guide the interview committee, or if thecriteria were irrational, or if the criteria were arbitrarily departed fromand the selections were made on the basis of subjectiveconsiderations, as it was the case in this matter for reasons I will statelater on, then if previous interviews were 'similar", the results of thoseinterviews would be of no value at all and ought not to have beentaken into consideration.
If the decisions of previous interview committees was adetermining factor, what was the role of the latest InterviewCommittee?
If failure at previous interviews was a negative factor in assessingperformance at the latest interview, it was not made known to thecandidates.
The number of unsuccessful appearances of each petitioner isstated to be as follows:- 1
1.Mr. F. G. L. Perera 5
Mr. K. M. P. Wijekoon 4
Mrs. W. D. P. M. Samaratunge 4
Mrs. D. Jayasuriya 4
Mr. R. S. Liyanage 4
Mr. J. Gurugamage4
Mr. T. H. Wickremasinghe 4
Mr. W. R. de Alwis 4
Mr. M. G. W. Karunaratne 3
Mr. K. N. W. Fernando 2
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185
If Perera, Wijekoon, Liyanage and Wickremasinghe weredisqualified as chronic’ NSC Grade 5 cases, why were Samaratunge,Gurugamage, de Alwis, Karunaratne and Fernando, who were NSCGrade 4 officers, disqualified? Because they had been unsuccessfulat previous interviews? If failure at previous interviews was a decisivefactor, why were respondent 14 Miss S. P. Mendis, and respondent16 W. A. Sirisena, who had, like petitioner 9 Karunaratne, failed threetimes at previous interviews, promoted? Having set its own standardsad hoc, the interview panel did not adhere to it but had to zigzag itsway, arbitrarily, avoiding its own criteria, to be able to appoint certainpersons.
Having regard to the submissions of the learned Deputy Solicitor-General, NSC Grade 5 officers were in a category superior to NSCGrade 4 officers. There was no rational basis to say, as the learnedDeputy Solicitor-General ventured to do so in his astoundingrevelation, that NSC Grade 5 officers had been relegated to a classbeyond which they could not ascend. Banished to some limbo, wereNSC Grade 5 Officers tormented from time to time by the hope heldout to them by being called for interviews, that they had, after all,been redeemed and crossed the border of eligibility? Assuming thatthey were aware that NSC Grade 5 officers as such had beendisqualified from eventual selection, that would have been the case.However, the situation is much worse, since they were not aware ofthis fact at all. On the contrary, at meetings with the Bank’srepresentatives, they had been given the assurance that they wouldbe considered for promotion with Grade 4 officers; and so, hopefullyand confidently, they presented themselves for interview wheneversummoned. The learned Deputy Solicitor-General maintained that thepetitioners were persons who had faced earlier interview committeesand therefore knew all about the recruitment procedures and criteria.I am unable to agree with him. They may have certainly suspectedthat something was seriously amiss, for at the meeting of theGovernor with the Central Bank Employees Union on 17th July 1992(P14) the Union had expressed its dissatisfaction with the manner inwhich promotions had been made. But that was not all. They wereonce again disappointed and perplexed by the selection of the 11thto the 22nd respondents who were non-staff class Grade 4 officers,persons comparatively inferior in rank, in preference to them. And so
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they wrote on 3rd March 1993 (P7) objecting to the latest selection.However, they could not have been aware of what was exactly theproblem, for the Bank's methods of promotions, including the fact thatGrade 5 officers were not as a class persons grata and notacceptable came to be revealed only in these proceedings. The replyto P7 by the Bank R3 setting out the criteria which were supposed tohave been adopted was dated 12th April 1993. This petition was filedon 2nd April 1993. In any event, exclusion of Grade 5 officers as aclass was not mentioned in R3. In the light of the learned DeputySolicitor-General's explanation, the NSC Grade 5 officers must notonly feel disappointed that they were not selected, but also greatlyastonished and distressed that they were excluded because theywere, albeit secretly, despised as a class and looked upon with anevil eye. Grade 5 officers were “eliminated" on the preconceivedopinion that they should not be selected and not on the basis of theirperformance at the interview. They were excluded on account ofprejudice. There was no rational basis for their exclusion. In fact, theevidence points in the opposite direction.
(15) THE RECOMMENDATIONS OF THE ESTABLISHMENTSCOMMITTEEAll those who were summoned as “eligible", whether NSC Grade 4or NSC Grade 5 officers, were selected for interview on therecommendations of the Establishments Committee on 30th, July,1992 as approved by the Monetary Board on 4th September, 1992.(Vide paragraphs 5 and 6 of the affidavit of the Executive Director ofthe Bank). According to the Executive Director of the Bank, theEstablishments Committee in recommending candidates for interview‘followed the practice" of recommending for the interview only thosecandidates who had an excellent record (average of 86% and over)during the five years immediately preceding the date on whicheligibility was determined, and taking into consideration the criterialaid down by the Monetary Board as set out in documents marked R1and R2. The "eligibility" of the petitioners and 11th – 22ndrespondents was considered as at 6th March 1992. (See paragraphs9,10,12,13,14 and 15 of the affidavit of the Executive Director).
The Establishments Committee made its selections from those whohad obtained “near excellent” gradings on the basis of assessments
Patera and Nine Others v. Monetary Board of the
SC Central Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)187
made in terms of very detailed annual personnel evaluation reports ina prescribed form (P12) of those who had obtained a ‘near excellentgrading". P12 contained fifteen main headings relating to specificaspects of performance and ability. In addition there was a specialassessment of "Negative Qualities”. The evaluation required theconsideration of eighty-two options, ranging from four to sevenoptions under each of the sixteen main heads, in the process offorming notions with regard to the performance, abilities and qualitiesof each employee. “Near Excellent” may, in terms of the affidavit ofthe Executive Director, have ben 81% (para. 25 (b) of his affidavit) or76% (para. 25(d) of the affidavit). There is no criterion to determine"near excellent”. The ‘Classification and Descriptive Code” in P12refers to “over 85%" as “outstanding" and 76% to 85% as "Excellent”.The Executive Director states in paragraph 14 of his affidavit that “allofficers who were invited for the interviews held on 5th, 6th and 7thJanuary were officers who had excellent ratings during the 5 yearperiod immediately preceding the date on which their eligibility wasconsidered …” In paragraph 25(d) of his affidavit, the ExecutiveDirector explains that “To achieve an excellent grading an officershould get a minimum average of 86% of the total marks given, afteradjustment for late attendance and negative qualities.” In paragraph25(g) of his affidavit the Executive Director said that inrecommending the names to the interview panel “the EstablishmentCommittee also took into consideration the work, conduct,attendance and punctuality of the officers concerned.” In terms of theDescriptive Code in P12, those who obtained an overall rating of over85% were classified as A+ and merited the descriptive standing"Outstanding", and not merely “Excellent” as the Executive Directorexplains in paragraph 25(d). The petitioners maintain that all of themwere classified as "Outstanding".
If, as the respondents maintain, some of those who weresummoned for interview had obtained higher ratings than others andwere therefore superior, that fact has not been established byevidence. Who were those who obtained more marks? Why was thisinformation suppressed? The inference I draw is that the disclosure ofthat information would have been adverse and unfavourable to therespondents’ selection of the 11th – 22nd respondents in preferenceto the petitioners.
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(18) THE SELECTION BY A SINGLE INTERVIEW PANEL WAS ANAD HOC DEPARTURE FROM THE BOARD’S OWN SCHEME
After the Establishments Committee at its meeting held on 30thJuly 1992 had recommended the eligible candidates for interview, therecommendations were approved by the Monetary Board on 4thSeptember 1992 and letters inviting the eligible candidates to presentthemselves for interviews were issued on 28th December 1992 andthe interviews were held on 5th, 6th and 7th January, 1993.
The petitioners maintained that in terms of Public AdministrationCirculars, it was Government policy that promotions should not bemade on the basis of an interview but on the basis of merit andseniority and an examination. The Bank, as we have seen, took upthe position that the Circulars did not apply to the Bank and that theBank was "empowered to lay down the manner in which promotionsare to be conducted," Was the scheme laid down by the Bank in theexercise of its powers adhered to by the Bank?
The Scheme of Recruitment set out in P4 does not mention aninterview as a part of the selection process. However, in terms of R1.the Board had at its meeting 1/89 decided on the following‘procedure relating to promotions of Staff Assistants to Staff ClassGrade 1":
The Establishments Committee to take into consideration therecord of service, work, conduct, attendance and punctualityof officers who have completed 4 years confirmed service inNon-Staff Class Grade 4 and of officers in Non-Staff Grade 5and to recommend candidates for interview by a PreliminaryInterview Committee nominated by the Governor for thepurpose
A second Interview Committee nominated by the Governorinterviewing those recommended by the PreliminaryInterview Committee and recommended candidates forinterview by the Monetary Board.
Perera and Nine Others v. Monetary Board of the
SC Central Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)189
(ill) The Monetary Board to Interview those recommended bythe second Interview Committee and selecting those whowere considered fit for promotion to Staff Class.
The emphasis is mine.
R1 was modified by the Board at its meeting 2/90 on 16th January1990 with regard to the criteria the Establishments Committee shouldapply in recommending candidates “for interview by a PreliminaryInterview Committee nominated by the Governor.” (The emphasis ismine.) It did not modify the provisions of R1 regarding the need forthree interviews.
The Executive Director of the Bank in paragraphs 6 and 9 of hisaffidavit accepts the fact that the Establishments Committee, takingthe prescribed criteria into account, was to ‘recommend candidatesfor interview by a Preliminary Interview Committee nominated by theGovernor for the purpose." (The emphasis is mine.)
The petitioners in paragraph 12 of their affidavit stated that “priorto the present scheme of Promotions (P1) coming into force, it wasthe practice at the Central Bank to conduct 2 or 3 interviews for thepromotion of Non-Staff Class Officers to Staff Class Grade 1. The finalinterview was conducted by the Governor or by the Monetary Board."
Responding to that, the Executive Director in paragraph 8 of hisaffidavit states as follows: “Answering paragraph 12 of the affidavit ofthe petitioners, I admit the several averments contained therein and Ifurther state that where more than one interview was held for thepurpose of promotions there was a process of elimination ofcandidates at each interview.”
Obviously the purpose of having several interviews is to eliminateless suitable candidates at each stage. However, the respondents failto explain why. 1
(1) a final selection was made at the first and only interviews,whereas the procedure approved by the Monetary Board as set out in
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R1, which the respondents say was the procedure applied, requiredthree interviews, and when that was the established practice?;
the final selection was made by senior officers of the Bankand not by the Board itself as prescribed by the Monetary Board inR1, and in accordance with practice, except when, if the petitionerswere right, the Governor, departing from the scheme in R1, held thethird interview.
It should be mentioned that even in the selection of serving officersin terms of the scheme of “accelerated promotions", when servingofficers competed with outsiders, the Scheme of Recruitment in P4specified that “All candidates will be interviewed by the Board beforepromotion to Staff Class can be considered." (The emphasis is mine.)Importance was attached to the Board itself selecting Staff Classofficers, irrespective of which scheme was used.
In paragraph 19 of his affidavit, the Executive Director of the Bankstates that the object of the single interview was "for the purpose ofascertaining finally “(the emphasis is mine)" the suitability ofcandidates for promotion to the Staff Class of the Central Bank …”How was this justifiable in the light of the decision of the Boardembodied in R1 that the final selection would be by the Board itselfafter candidates had been screened at two previous interviews? Whywas a departure from the Bank’s scheme made ad hoc?
Obviously, several interviews, with the finai selection being madeby the Board itself, was intended to minimize arbitrariness andensure a fair evaluation of the candidates. In terms of paragraph 12of the Executive Director’s affidavit, 65 officers were invited forinterview, but five of them did not present themselves for interview. Ifas the Executive Director explains in paragraph 8 of his affidavit, theinterviews sorted out the candidates, it is to be expected that by thetime of the final interview by the Board a much smaller number ofcandidates than interviewed earlier would have presentedthemselves, giving the Board the time and the opportunity to carefullyassess the candidates. As it happened, the final selections weremade in a hurry, and therefore, as a matter of reasonable inference,inconsiderately, without due deliberation.
Perera and Nine Others v. Monetary Board of the
SCCentral Bank of Sri Lanka & Twenty-two Others (Amerasinghe, J.)191
In paragraph 21 of their affidavit the petitioners state that “eachcandidate was interviewed for a maximum of five minutes, the 10threspondent (The Director of Establishments) making anannouncement that the time was up at the end of five minutes)." Inparagraph 17 of his affidavit, the Executive Director states that theinterviews were “not restricted to five minutes and that the candidateswere interviewed for as long as it was necessary." If the ExecutiveDirector’s version is to be preferred, he should have adducedevidence to support it. For how long were each of the 11th – 22ndrespondents and the petitioners interviewed? Why was one interviewlonger than another? Why was it “necessary" in the one case but notin the other? At least what was the total time spent on all theinterviews? No evidence has been placed before us on thesematters. “Five minutes” is not in this case a less distasteful way ofsaying that the Interview Committee was making its evaluations tooquickly, for specific reference is made to the role of the Director ofEstablishments acting as a time-keeper. “Five Minutes" was muchmore than an euphemism.
The members of the Interview Committee were said by ExecutiveDirector Easparanathan in paragraph 29 of his affidavit to have hadthe bio-data and service records of the candidates, each candidatewas supposed to have been assessed “independently by themembers of the Board.” Taking “Board” to mean InterviewCommittee, for the one and only interview was by a group of seniorofficials who made the selection and not, as required by R1, by theMonetary Board, what kind of assessment of capability could havebeen made in five minutes after perusing the bio-data and servicerecords? In terms of paragraph 17 of Executive DirectorEasparanathan’s affidavit, the “Interview Board” consisted of the 5thto 10th respondents. “However", he explains that "the 8thRespondent was present as a member of the Interview Panel only inthe morning of the 5th January 1993 and he was not present and didnot function as a member of the Interview Panel thereafter." Thosewho were interviewed on the morning of 5th January would havebeen worse off than the others who were interviewed when the 8threspondent was absent, for six rather than five persons would havebeen perusing the bio-data and service records in five minutes.Assuming, as we must if each member of the Interview Committee,
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as the Executive Director says, acted “independently", each memberwould have had a single minute to peruse the bio-data and servicerecord of a candidate to assess “capability” and/or “experience." Theservice records spanned many years: 27-34 years in the case of thepetitioners, and 22-27 years in the case of the 11th to 22ndrespondents. There was even less, if not no time for this at all, for timewas spent questioning the candidates. What was the estimate thatcould have been made even if “five minutes" was an euphemism for‘a short time'?
In the circumstances, one is compelled to conclude that theselections were not made after sufficient and careful consideration,but arbitrarily. The respondents maintained that the petitioners andthose selected were treated alike. It is a superficial and worthlesssubmission. Perhaps, both the petitioners and the 11th to 22ndrespondents were treated alike in that they each had five minutes at asingle interview. At best they were as equal as are the purchasers oflottery tickets. Whereas the purchasers of lottery tickets are randomlyselected and the losers do not complain because they considerthemselves to be more deserving, promotion is a reward which aftercareful consideration, for sufficient reasons is declared to be meritedand earned, Selection for promotion is not simply a matter of goodfortune. There was not even a random selection, for, as we haveseen, a group of persons, namely those who were in Grade 5, weredisqualified as a class, and it was pretended that those who hadfailed at previous interviews were also disqualified. Moreover, as weshall see, the equal time spent was used very differently, both withregard to the questions asked and with regard to what was done inthe making of decisions within that time.
(18)THE COMPOSITION OF THE INTERVIEW COMMITTEE/PANEL/BOARD AND THE INTRUSION OF SUBJECTIVITYINTO THE SELECTION PROCESS
In paragraph 27 of his affidavit, the Executive Director states thatthe interview panel consisted of "several senior officers of the CentralBank who had worked in the Bank in different capacities over a longperiod", and filed a document (R5) entitled "Career of each memberof the Interview Panel”, giving the name, designation and positions
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held by each member of the panel. In paragraph 29 of his affidavit,the Executive Director states that “In addition to the members of theInterview Panel being aware of the capabilities of the variouscandidates who presented themselves for said interview, their servicerecords were also made available to the said members and eachcandidate was assessed independently by the members of theBoard."
The learned Deputy Solicitor-General submitted that the interviewwas conducted by "responsible" officers of the Bank. They decidedon the criteria to be adopted and made their selections. No doubtthey were estimable people about whom even the petitionersprobably entertained a favourable opinion, for no objection has beentaken to the composition of that panel on personal grounds. Whatthey object to is the role of that panel as the final selecting authority.They maintain, justifiably, that in terms of the scheme of promotionrelied upon by the respondents, the final selection should have beenmade by the Monetary Board after a second interview.
In the matter before us, as we shall see, the interview panel wasnot even guided by criteria laid down by the Board, and, therefore,the Board in making the final selections may well have selected otherpersons, Moreover, if, as the Executive Director says, the members ofthe Interview panel were equipped to assess the candidatesbecause, among other things, they were already “aware of thecapabilities of the various candidates", subjectivity was introducedinto the selection process. Each candidate, the Executive Directorsaid, was assessed “independently" and not, therefore, after hisopinion was discussed and moderated by the panel as a whole. Andso, in the process of assessing the worth of each candidateexclusively through the medium of one's own mind or individuality,having regard to one’s own experience, a member of the panel maywell have entertained erroneous opinions. Objective, and notsubjective standards, must be used at every stage of a recruitmentprocess so that selection may be determined by actual facts and notbe coloured by irrational or prejudicial feelings, or by fancifulopinions or misguided notions. Were each of the sixty personsinterviewed personally known to each of the five members of thepanel? If not, how was it possible for each member to act“independently” on the basis of his personal knowledge? What was
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the nature and extent of contact between the persons interviewedand each member of the panel? The Bank has not adduced anyevidence in that regard. The Bank, as we have seen, placed relianceon the personal knowledge the members of the interview had of thecandidates. Had the selection been made by the Monetary Board, isit not likely that objective, rather than subjective considerationsbased on personal knowledge, would have been taken into account?Even well-formed interview panels are not infallible and cansometimes produce strange results; but their composition can becrucial, as it was in this case.
THE UNEVENNESS OF THE QUESTIONS ASKED AT THEINTERVIEW
The petitioners state that the questions asked were haphazard,and sometimes irrelevant, and that the selections were fortuitous andtherefore resulted in the elimination of the petitioners and theselection of the 11th to 22nd respondents unfairly. In paragraphs23-32 of their affidavit they set out the questions asked of each of thepetitioners.
The first petitioner had been questioned on the definitions ofmanagement and financial audit; whether he had read a certainnewspaper article on international accounting standards; and aboutthe work he had done thirty-two years earlier in the Exchange ControlDepartment.
The second petitioner had been questioned on the air route toMadagascar; the present name for what was once known as Congo;the present name for Burma and its capital; and about his currentand previous work.
The questions put to, and the answers given by the third petitionerwere as follows;
Q. What is the subject you are doing at present?
A. I am attached to the Administration Division of the Public DebtDepartment.
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Q. Why are you doing administration?
A. I was posted there by my Head of Department.
Q. Who was the tall boy who was doing administration earlier?
A. The tall boy in the Department did not do administration, he didtreasury bills.
Q. Where is he now?
A. He is at the Anuradhapura Branch.
The fourth petitioner was questioned about the functions of theCentral Bank, re-finance, EPF refunds and Bank re-financing.
The fifth petitioner was questioned as to whether salaries could bepaid before the 25th of the month, and what disadvantages therewere in such payment.
The sixth petitioner was questioned on the differences in the EPFDepartment in the 1960s and at the present time; the names of theSuperintendent of EPF then and now; how an employee of a firmcomes to know whether EPF contributions are made on his behalf;and on suggestions for the better functioning of the EPF Department.
The seventh petitioner was questioned on his work in the BankSupervision Department; what the BASLE agreement was; and thesubject of visas for expatriates attached to foreign Banks. There wasalso an aborted question: The seventh respondent Executive DirectorNagahawatte, asked the seventh petitioner, Wickramasinghe, aboutthe number of EPF account holders, and before petitionerWickramasinghe could answer, the Executive Director G. M. P deSilva, the eighth respondent, interrupted and asked “Why do you askthat question?” Nagahawatte stated that he was not able to answerthe question.
The eighth petitioner was questioned as to the number ofdepartments of the Bank in which he had worked and which was thebest department; how the genuineness of gold is tested; who was the
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famous Oxford-educated anthropologist; who is the Prime Minister ofPakistan; and who was the person responsible for obtainingindependence for Pakistan.
The ninth petitioner was questioned about the technical defects inthe Mahaweli Scheme.
The tenth petitioner was questioned about the Collection Divisionof the EPF Department and the functions of the Banking Department.
Although he was himself a member of the interview panel (SeeR5), Executive Director Easparanathan in paragraph 19 of hisaffidavit states that he ‘cannot at this stage recall all the questionsthat were asked from each of the candidates…" Personal amnesiamay be understandable or even excusable. However, why was norecord kept of the questions and answers when the interview was amatter of paramount importance in the selection process? Therecording of interviews has the salutary effect of keeping interviewerswithin the bounds of propriety and relevance in addition to providingevidence of fairness. The failure to do so disabled the Bank inrefuting the allegation of the petitioners that the questions wereirrelevant and uneven, generally or specifically, In relation to thepetitioners. Surely, especially with the assistance of moderntechnology, the recording of an interview and transcribing it, shouldbe a very simple matter ?
The evidence adduced by the petitioners certainty supports theirclaim that the questioning was uneven and therefore resulted inunequal treatment. Moreover, the exchange between the seventh andeighth respondents during the interview of the seventh petitionershows that the members of the Interview Committee were not always,if at all, certain as to what the purpose of interview was, in the senseof what they were supposed to be ascertaining.
THE SUPPOSED CRITERIA FOR EVALUATION AT THEINTERVIEW WERE UNCERTAINIn the written submissions filed by Attorney-at-Law S.Abeywickrama on behalf of the 1st to 10th respondents, while
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rejecting that no interview ought, in terms of Public AdministrationCircular No. 30/91, to have been held at all, it is stated in paragraph2.2 that “in any event the Public Administration Circular prescribesmerit and seniority as the criteria that should be applied for thepurposes of promotions. The Central Bank has applied thesecriteria in selecting the candidates for promotion. This position isapparent considering the criteria that were adopted at the interviewfor the purpose of selecting." The emphasis is that of the Attorney-at-Law.
Apparent from what? The Scheme of Recruitment in P4 asamended by R1 and R2 do not, as they should have, specified thecriteria to be taken into account for evaluation at the interviews. Andas far the evidence before us is concerned, the variously expressedpositions of the Bank cannot be reconciled.
That which is stated in the Bank's written submissions is different towhat the petitioners were told in P15 by the Bank, namely, that theselections were made on the basis of performance at the interview,seniority, experience, and general capability in their work.
In paragraph 19 of his affidavit, Executive Director Easparanathanstates as follows:
“…I state that the interview was conducted for the purpose ofascertaining finally the suitability of candidates for promotions tothe Staff Class of the Central Bank where the responsibilitiesand the qualities that an officer is called upon to bear are vastlydifferent to the responsibilities and qualities that an officer iscalled upon to bear in the class to which the candidatesbelonged, namely, the Non-Staff Class. With a view to achievingthis objective at the interview, the questions were asked for thepurpose of ascertaining the knowledge of the candidates withregard to the work handled by them, the knowledge of thefunctions of the Department in which they worked, the functionsof the Central Bank, general knowledge and awareness, abilityto identify a problem and respond to it and their analytical skillsin answering a question."
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THE SUPPOSED CRITERIA FOR EVALUATION AT THEINTERVIEW WERE VAGUE
The promotions in question related to the promotion of “StaffAssistants". “Staff Assistants" were persons who were expected toexercise “supervisory functions”. In what ways were the"responsibilities and qualities" of “Staff Assistants" different to thoseof Class I Staff Grade Officers? Being not only different, but “vastlydifferent", one might reasonably expect an explanation of what werethe differences in the tasks to be performed and some rationalexplanation of the character, and nature of the qualities includingthose of excellence, good natural gifts and capacity, ability, skill anddisposition that were expected of a Staff-Grade Class I Officer, andhow the interviews were structured and conducted to select the bestpersons in the light of the tasks to be performed. We had nosatisfactory explanation of these matters. The inexactness of thecouching of criteria, and the inability of members of the interviewpanel therefore to think with clearness in the formulation of theirquestions appear from the application of the criteria.
CRITERIA FOR EVALUATION AT THE INTERVIEW NOTANNOUNCED
How was it decided by the Interview Committee that thecandidates selected were better than the others who were notselected, and especially the ten petitioners?
The criteria that were supposed to have been applied were firstrevealed by the Director Establishments in R3, after the selectionswere made and after these proceedings were commenced.Moreover, the criteria set out in R3 are not only inconsistent with whatwas said by the respondents themselves in the written submissionsand through Executive Director Easparanathan to have been donebut also, as we shall see, inconsistent with what they did.
THE APPLICATION OF THE SUPPOSED CRITERIA -(A) THE CRITERION OF SENIORITY
Seniority was supposed to have been a criterion, In terms of theinformation contained in paragraphs 13 and 15 of the affidavit of the
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Executive Director, albeit not in the exact manner in which he sets outthe information, the position with regard to the seniority of thepetitioners was as follows as at 6th March 1992:
PetitionerNameNo. of No. of No. of No. of
No.Years in Years in Years in Years in
BankNon-StaffNon-StaffNon-Staff
ClassGrade 5Class
Grade 4Grades 4 &5
G. A. L. Perera3410 1/2515 1/2
K. M.P. Wijekoon3310 1/22(6)mths.11
W. D. P, M. Samaratunge 3110Nil10
D. Jayasuriya3010Nil10
R. S. Liyanage30101/26mths.11
J. Gurugamage309Nil9
T. H. Wickramasinghe30101/26mths.11
W. R. deAlwis27 1/210Nil10
M, G. W. Karunaratne2710Nil10
K. N. W. Fernando2711Nil11
The position with regard to the 11th – 22nd respondents was asfollows:
Respondent NameNo. of No. of No. of No. of
No.Yiears in Years in Years in Years in
BankNon-StaffNon-StaffNon-Staff
ClassGrade 5Class
Grade 4Grades 4 & 5 11
11.D. J. Wansapura2706Nil06
N. Z. Musafer2706Nil06
K. M. B. Ranasinghe2406Nil06
S. P. Mendis251/2 081/2Nil081/2
S. Peris2506Nil06
W. Sirisena2510Nil10
S. R. Gnanamuttu2406Nil06
G. Gamage2309Nil09
W. D. J. Chandradasa 2306Nil06
A. J. P. Leelaratne2206Nil06
M. D. A. Jayasinghe2206Nil06
W. K. P. I, Weerasekera2206Nil06
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Length of service as a Staff Assistant was a factor stated in P4 tobe taken into account in determining eligibility. If as the respondentssay in their written submissions P4 was the applicable scheme andthat the selections were made on the "same basis" as that used inthe determination of eligibility by the Establishments Committee, whyis no mention made by the Executive Director of service as StaffAssistants? It was, after all, a factor recognized at the meetingbetween the Trade Unions and the Governor and otherrepresentatives of the Bank on 24th October 1992. An additional• nark was to be given for ‘the experience gained in the post of StaffAssistant."
If seniority was a factor to be taken into account by the InterviewCommittee, how was this assessed? What weightage was given foreach year of service (1) in the Bank (2) in NSC Grade 4 and (3) NSCGrade 5 (4) and as Staff Assistants? The respondents failed to showwhat weightage, if any, was given to any or each of these factors. Ifthe Interview Committee was doing anything more than theEstablishments Committee, should not the marking for seniority havebeen at the time of selection, 5th – 7th January 1993, rather than 6thMarch 1992 when eligibility for interview was considered?
According to the respondents, 25% of the marks allocated at theinterview was for seniority. How many marks each candidate earnedand how that was determined have not been established by theBank. However, in the light of the information in the ExecutiveDirector's affidavit, in terms of years of service in the Bank, petitionersPerera, Wijekoon, Samaratunge, Jayasuriya, Liyartage, Gurugamageand Wickramasinghe were senior to each and every one ofrespondents 11 – 22. With regard to Petitioner Karunaratne andrespondents Wansapura and Musafer, each of them had 27 years ofservice. Petitioner De Alwis had 27 1/2 years of service and wassenior to petitioner Karunaratne and to respondents Wansapura andMusafer. Petitioner Fernando had 27 years of service and was seniorto the 13th to 22nd respondents.
In terms of years of service in Non-Staff Class Grade 4, all of thepetitioners were senior to the 11th to 22nd respondents.
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In terms of years of service in Non-Staff Class Grade 5, none of therespondents had served in that Grade, whereas petitioners Perera,Wljekoon, Liyanage and Wickramasinghe had served in that Grade.Taking the total service in NSC Grades 4 and 5, in terms of seniorityin service, Perera, Wijekoon, Liyanage and Wickramasinghe werewell ahead of some of the other petitioners and above each andevery one of the 13th to 22nd respondents.
THE APPLICATION OF THE SUPPOSED CRITERIA -(B) MERITSeniority alone, the respondents said, was not the basis ofselection. If, as established by the petitioners, they ought, in terms ofthe criterion of seniority, to have been selected in preference to the11th to 22nd respondents, what were the other criteria in terms ofwhich they were excluded? Admittedly, when one compares theresponse of the Bank in P15, the affidavit of Executive DirectorEasparanathan and the written submissions of the Bank submitted byAttorney-at-Law Abeywickrama, it is evident that there were nocertain standards of selection. However, the Attorney-at-Law for the1st—10th respondents, as we have seen, in making the writtensubmissions of the Bank, stated that the Central Bank had appliedthe criteria of "merit and seniority” in selecting the candidates forpromotion. What was “merit”? What were the criteria for evaluating“merit"?
The Attorney-at-Law in paragraph 2.3 of the written submissions ofthe 1st to 10th respondents explains that, since the record of service,work, conduct, attendance and punctuality, in terms of the scheme ofpromotion in P4 as amended, were to be taken into account, "as suchit is clear that merit in addition to seniority will be considered for thepurpose of promotion from Non-Staff Class Grade 5 to Staff ClassGrade.”
It is by no means clear that merit was taken into account. All wehave is an assurance that in future it “will be considered”. The criteriaset out in P4 as amended were for the purpose of guiding theEstablishments Committee in making its recommendations withregard to those for the preliminary interview. P4 as amended says
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nothing about the way in which merit was to be determined by theInterview Committee. Neither merit, nor seniority nor any othercriteria are mentioned in P4, as amended, as guiding factors whichthe preliminary or second Interview Committees or the Board at thefinal interview should take into account. How does it become “clear”that merit was taken into account by the Interview Committee or thatit was expected to do so merely because the EstablishmentsCommittee was required to take certain matters into-account? Nor isthere any reference in P4, R1. R2 or elsewhere as to how seniorityand merit were to be ascertained.
What did the Interview Committee do? In paragraph 2.2 of thewritten submissions of the Bank, it is stated that “at this interviewcandidates were marked on seniority, academic qualifications,general awareness and performance.” The assertion of the Bank thatcandidates were selected on the basis of ‘seniority and merit’ cannotbe sustained on the ground that academic qualifications, generalawareness and performance constituted the elements of ’merit”, forthe Bank in its written submissions, after stating that the ’candidateswere marked on seniority, academic qualifications, generalawareness and performance”, adds that “equal weightage was givento each of these elements and the members of the interview panelmarked each of the candidates independently. The candidates wereselected on the basis of the average marks obtained by them.”Executive Director Easparanathan in paragraph 28 of his affidavitconfirms this. He states as follows:
"I state that the candidates who presented themselves forinterview were judged on the basis of their seniority, academicqualifications, general awareness and their performance. Equalweightage was given to the above criteria."
Thus, the selection was not simply on the basis of two criteria,namely, seniority and merit, as stated by the Bank in paragraph 2.2 ofits written submissions but, as differently stated in the samesubmissions, and supported by Executive Director Easparanathan,on the basis of seniority, academic qualifications, general awarenessand performance, for ‘equal weightage* was given to each of thesefour separate factors.
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Executive Director Easparanathan further explains the selectionprocess as follows:
27. The interviews were held by a Panel consisting of severalsenior officers of the Central Bank who had worked in the Bank indifferent capacities over a long period…
In addition to the members of the interview panel beingaware of the capabilities of the various candidates who presentedthemselves for the said interview, their bio-data and their servicerecords were also made available to the said members and eachcandidate was assessed independently by the members of theBoard.
I further state that 10 out of the 12 respondents who werepromoted had Degrees from recognized Universities and/or hadcompleted the examinations conducted by the Institute of Bankers.Out of the two candidates who did not have such specialqualifications, the 12th respondent had received a specialcommendation from a Governor of the Central Bank. A copy of thesaid commendation is annexed herewith marked R6. In addition, thesaid two candidates, namely the 11th and 12th respondents, werefound to be suitable for promotion on the basis of the criteria referredto earlier. Amongst the several petitioners only the 8th petitioner hadobtained a Degree from a recognized University or had anyequivalent banking qualifications.”
When the petitioners in their letter dated 7th March 1993 protestedagainst their exclusion from promotion (P7), the response of the BankIn its letter dated 12th April 1993 (P15) was that the InterviewCommittee had made its selections on the basis of performance atthe interview, seniority, experience, and general capability in theirwork. No mention is made of academic and/or professionalqualifications having been taken into account. No mention is made of“special qualifications" or “commendations* being taken intoaccount. Whereas “performance”, simpliciter, is referred to in thewritten submissions of the 1st – 10th respondents and in Mr.Easparanathan's affidavit, “performance at the interview" is referredto in the letter of 12th April 1993. Did “performance at the interview"
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mean how well or badly they answered the questions, or did it meanhow they fared, having regard to marks given for seniority,educational qualifications, general awareness and performance inthe sense of the successful accomplishment in past years of thetasks assigned to them and/or proven capabilities in that regard? Ordid it mean the judgment of capabilities by reference to the personalnotions of the members of the panel? We have been given no answer.If “performance" meant "experience" and/or “general capability",could the interview committee have done better than accepting theassessments made by the Establishments Committee on the basis ofthe five annual evaluation reports? I do not think so, having regard tothe way in which the interviews were conducted.
There were no certain standards and understandably, nostandards that could have been announced without reasonableprotest. For example, could it have been announced, withoutlegitimate resistance, that all NSC Grade 5 officers were, by reason ofbeing in that Grade, excluded from further consideration as being'chronic' cases: or that failures at previous interviews were taken intothe process of reckoning? Could it have been announced withoutjustifiable protest that academic/professional qualifications werebeing taken into account?
THE APPLICATION OF SUPPOSED CRITERIA – (C)ACADEMIC/PROFESSIONAL QUALIFICATIONSIt was common cause that the matter in question related to the"rankers", “in-service", “ordinary scheme". Accepting therespondents' view that the applicable scheme was that which was setout in P4 as amended by R1 and R2, there is nothing that suggeststhat academic and/or professional qualifications play any part in thepromotion of Staff Assistants to Staff Class Grade 1. That was plainlya scheme recognizing the importance of experience judged by theproven excellence and worth of serving officers. Academic and/orprofessional qualifications were relevant, as far as serving officerswere concerned, to the scheme of “accelerated promotion” in termsof which the Bank was attempting to inject new blood as well asproviding incentives to serving officers to improve their knowledgeand skills. In any event, academic and professional qualifications had
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been already given credit in earlier promotions and it seems to havebeen a recognized policy in the Bank not to give credit foracademic/professional qualifications if it had already been given.Thus, although at one stage 10% weightage had been given foreducational qualifications in the appointment of Staff Assistants, thishad been withdrawn by the Governor in order to avoid duplication.
Assuming that it was legitimate to have taken academic/professionalqualifications into account and that ten of the twelve respondents hadthe requisite qualifications – and this we do not know for certainbecause there is no evidence that the Degrees were not merely anyDegrees from “recognized universities" as the Executive Directorsays in paragraph 30 of his affidavit, but also in specific subjectsdeemed relevant to the work in hand and of a specified quality,namely, first or second class upper division, as prescribed by theBoard in R1 – why was De Alwis, the eighth petitioner, who inparagraph 30 of Executive Director Easparanathan's affidavit isadmitted to have had a Degree, excluded from selection? Why washe excluded while respondent 17, S. R. Gnanamuttu who, accordingto the written submissions of the Bank, had no Degree but merelypossessed a Diploma in Library Science selected? In the writtensubmissions of the Bank Gnanamuttu is referred to as a personholding “special academic qualifications." Were selections made onthe basis of a Degree, as the Executive Director claims, or on thebasis of "special academic qualifications” as stated by the Bank in itswritten submission? What were ‘special academic qualifications"?How were they relevant to the selection of Staff Class Grade officers?A Diploma in Library Science is not a recognized academic orprofessional qualification in terms of P4 as amended by R1 whichtook great care in specifying the relevant degrees and professionalqualifications. The respondents have made no explanation. How arethe selections of Wansapura, the 11th respondent, and Musafer, the12th respondent, justified if the phrase ‘special qualifications' meant'diplomas', Wanaspura and Musafer had neither degrees nordiplomas of any sort. The explanation of the Executive Director inparagraph 30 of his affidavit is that although Musafer had no degree,she had “a special commendation from the Governor” in support ofwhich he produced R6. R6 is a letter dated 16th December 1982from the Secretary to the Governor and Deputy Director of Economic
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Research addressed to the Governor commending the "devotedwork" of four officers, including Musafer, in connection with the"efficient organization and smooth functioning" of a seminar. Theletter bears an endorsement, presumably from the Governor, statingDE. Mrs. Musafer is hereby commended. P1. place this in herpersonal file". Whether, and if so, and to what extent thiscommendation, which had been issued as far back as 1982, hadalready been taken into account in making Musafer eligible forinterview is not in evidence. However, there is no justification madeby the respondents, and I can see no grounds, let alone sufficientreasons, for equating such a commendation with the academic andprofessional qualifications of the sort specified in R1 in the schemethat was supposed to have been applicable. It was an ad hoccriterion adopted for the particular purpose of selecting Musafer, andtherefore, unfairly discriminatory in her favour, resulting in theunjustifiable exclusion of one of the petitioners. As far as Wansapura,the 11th respondent was concerned, not even so much as asubstituted criterion was suggested. After, unsatisfactorily explainingwhy Musafer was selected, the Executive Director, in paragraph 30 ofhis affidavit, lamely and vaguely, says: “In addition, the said twocandidates, namely the 11th and 12th respondents were found to besuitable for promotion on the basis of the criteria referred to earlier."There is no evidence establishing Wansapura's superiority in any wayto the petitioners.
THE APPLICATION OF SUPPOSED CRITERIA -(D) “GENERAL AWARENESS”What was “general awareness"? If "awareness" was used in theusual, contemporary sense of being watchful and being on one’sguard, how was this relevant to the purpose of recruitment by way ofpromotion of Non-Staff Class Officers to the Staff Class? Perhaps theterm “awareness” was used in the Middle English sense of beinginformed and cognizant and conscious? Aware of what? Mattersgermane to the work to be performed: or other matters? If they werewith regard to unrelated matters, what was the purpose of thequestions? Wes the quizzing then to merely expose the ignorance ofsome persons and to make fun of them or to embarrass them? Thereis no explanation.
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It is understandable that questions may have been asked aboutthe functions of the Central Bank and the functions of the Departmentin which they worked, for they were going to continue to work in theBank and may have been assigned to work in the same Departmentof the Bank as that in which they were functioning. However, whatwas the relevance of ascertaining the knowledge of candidates "withregard to the work handled by them"? What might have been relevantwould rather have been what Executive Director Easparanathandescribed as the “vastly different" work to be handled by them asStaff Class Officers. The interview should have been concerned withwhether candidates were aware of what they were expected to dorather than with what they were doing.
Competence with regard to what the candidates were doing, hadalready been ascertained, among other things, in five annualevaluation reports and considered for the purpose of determiningeligibility for the interview. Column 4 entitled "Knowledge" of theannual Personnel Evaluation Report (P12), states that .it “describesthe extent of the background information an employee has in respectof his own duties and of subjects allied to those duties," andproceeds to set out seven possible assessments – the most numberof options under any head – in the Report. The evaluation of"knowledge" had been by reference to responses to the followingassessments:
Has a good knowledge of his subject and related matters.
Very well-informed; unusually sound knowledge not only of hisown subject and related subjects as well.
Has a thorough knowledge of his subject; shows effectiveexperience.
Knows his subject fairly well.
Has just sufficient knowledge, of his subject to deal satisfactorilywith only the general aspects of his work.
Has hardly any knowledge of his subject and functions.
Has little knowledge of his subject and has need to consultothers and refer frequently for information.
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Could the interview panel have done better in the time available?
THE APPLICATION OF SUPPOSED CRITERIA – (E)IDENTIFICATION OF A PROBLEM AND RESPONDING TO ITLikewise, the capacity to identify a problem and satisfactorilyrespond to it had been considered at five annual evaluations underthe head 'Comprehension and Judgment". The evaluation formstates that what was sought to be ascertained was ‘the capacity ofan employee to understand a situation in relation to his work and givean apt decision in relation to that situation.* The evaluation wasbased on responses to the following assessments:
Can pick up new work in a reasonable period of time.
Has satisfactory capacity for grasping new ideas or learning anew job of work.
Has a clear and sharp mind; quick to grasp a problem; highorder of intelligence.
Slow in picking up new work and in grasping new ideas.
Very slow to learn a new task even with some explanation.
Is able to understand the general implications of a problem andpick up new work fairly quickly.
Could the interview panel have done better in the time available?
THE APPLICATION OF SUPPOSED CRITERIA -(F) ANALYTICAL SKILLSWhat the Executive Director meant by 'analytical skills inanswering a question" is not clear. How this was ascertained by thequestions asked of the petitioners is difficult to understand. However,“Analytical Ability”, which is described in the annual evaluation formas an 'employee’s ability to think logically and set out the salientfeatures of a problem*, were ascertained in the five annual evaluationreports by reference to the following assessments:
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Has good capacity for investigating a problem analytically andlogically.
Is able to pick out the salient features of some of the simplerproblems only.
Capacity for logical thinking and analytical investigation is of avery high order.
Capacity to think logically and to analyse a problem is limited.
Officer's capacity to think logically and present the essentialfeatures of a new problem is satisfactory.
Unable to think logically and sort out the factors bearing on aproblem.
Could the interview panel have done better in the time available?
THE INTERVIEW PANEL WAS IN NO POSITION TO MAKE ABETTER EVALUATION THAN THAT WHICH HAD BEENALREADY MADE
Could the Interview Committee in the time available to them havemade a more thorough and fairer evaluation of the knowledge of thework handled by the candidates, their ability to identify a problemand respond to it, and their analytical abilities, than those alreadymade year by year for five years by the immediate supervising officerof each candidate, moderated by the Deputy Head of theDepartment to which the candidate was attached and finallyconfirmed by the Head of such Department? (See paragraph 25(c) -(f) of the affidavit of Executive Director Easparanathan)? I do not thinkso. Indeed, having regard to the questions asked of the petitioners,one wonders how their relevant knowledge, abilities and skills wereascertained.
The interview panel had before them candidates who were, interms of the “classification and Descriptive Code" set out in the“Personnel Evaluation Form – Report Sheet" (P12), “excellent" if not“outstanding. If the 11th – 22nd Respondents were more excellent oror more outstanding than the petitioners, if has not been establishedby evidence.
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There was no mark sheet produced to enable us to ascertain howeach member of the Interview Committee made his "Independent"assessment in respect of each of the matters about which Mr.Easparanathan in paragraph 19 of his affidavit says the InterviewCommittee was concerned. Not even the aggregate mark sheet wasproduced in these proceedings. The respondents have failed todischarge their burden of adducing evidence to show that theselections they made were even-handed, fair and justifiable. Theevidence in fact points in the opposite direction.
DECLARATIONFor the reasons stated in my judgment, I declare that the selectionof the eleventh to twenty-second respondents in preference to thepetitioners was in violation of Article 12(1) of the Constitution and thatthe appointments of the eleventh to twenty-second respondents toStaff Class Grade 1 were therefore of no force or avail and null andvoid.
ORDERSAlthough the Court has a wide discretion in terms of Article 126(4)of the Constitution in granting relief and in making directions, I do notdeem it just and equitable that l should accede to the prayer of thepetitioners that the Central Bank of Sri Lanka should be directed topromote the petitioners to Staff Class Grade 1 with effect from 16thMarch 1993, for accountability for achieving the objects of thatinstitution lies with the Monetary Board. Within the bounds of the law,the determination of the necessary ancillary staff to assist the Boardin achieving its objects and the selection of the best availablepersons, ought, in fairness, to be matters for the Monetary Board asthe accountable authority. My business as a Judge of this Court is tosee that they act within the bounds of the law.
The Central Bank in terms of what it has stated, requires ten morepersons in Staff Class Grade 1 on the basis of the promotion ofserving officers in Non-Staff Class Grades 4 and 5. I direct theCentral Bank to make such recruitments by way of promotions withintwo months of this order.
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I direct that petitioners G. F. L. Perera, K. fOl. P. Wijekoon, R. S.Liyanage and T. M. Wickremasinghe because they were, asexplained, the victims of a cruel charade aggravating thedisappointment of unequal treatment in violation of their fundamentalright of equality, shall each be paid forthwith a sum of Rs. 20,000 bythe First Respondent by way of a solatium.
I further direct that the First Respondent shall pay forthwith a sumof Rs. 10,000 each by way of a solatium to petitioners W. D. P.Samarathunga, D. Jayasuriya, J. Gurugamage, W. R. de Alwis, M. G.W. Karunaratne and K. N. W, Fernando for the violation of theirfundamental right of equality.
Additionally, I direct that the First Respondent shall pay forthwith toeach and every one of the petitioners a sum of Rs. 5000 as costs.
WIJETUNGA, J.I agree with the conclusions reached by my brother Amerasinghein regard to the complaint of the petitioners and his reasons therefor. Ialso agree with the orders he proposes to make.
WADUGODAPITIYA, J.
I have read the judgment of my brother Amerasinghe, and I agreewith the conclusions reached by him in regard to the violation of thefundamental rights of the complaints in this case. I am also inagreement with the remedial measures he has proposed.
Relief granted.