055-SLLR-SLLR-2004-V-3-AMUNUPURA-SEELAWANSA-THERO-AND-OTHERS-v.-ADDITIONAL-SECRETARY-PUBLIC-SERV.pdf
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Amunupura Seelawansa Thero and others v Additional Secretary,
Public Service Commission and others
365
AMUNUPURA SEELAWANSA THERO AND OTHERSv
ADDITIONAL SECRETARY,PUBLIC SERVICE COMMISSION AND OTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE, J.
JAYASINGHE, J.
UDALAGAMA, J.
SC FR 575/2003
JUNE 30, 2004, JULY 23, 2004
OCTOBER 14, 2004
Constitution – Article 12(1) – Promotion of similarly circumstanced officers -Cancellation of Promotion – Equal treatment guaranteed by Article 12 is equaltreatment for the performance of a lawful Act? – Authorities acting illegally inone case because they acted illegally in another case? – Cannot be done?
The petitioners contend that, their fundamental rights Article 12(1) wereviolated by the respondents by their decision allowing some officers who weresimilarly circumstanced to be promoted and by cancelling the promotionsgiven to the petitioners.
The respondents contended that an applicant for promotion should have aminimum of five years satisfactory service in the lower grade, but theapplications of the petitioners were made after one year of service.
Held:
The basic requirements for their promotion to Class 1 included theapplicants to have five years satisfactory service in Class 1 Grade 1;The petitioners have not shown that they have fulfilled this basicrequirement and one cannot see as to how they could be qualified forpromotions without the basic qualifications. The basic norm is thatunequals cannot be treated as equals as well as equals cannot betreated as unequals. Equal opportunity is for equals who are similarlycircumstanced in life.
Held further:
It is evident the although there may have been promotions madeconsequent to backdating of appointments to Class II Grade 1, the
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petitioners cannot now rely on such appointments and seek to bepromoted to Grade 1 on that basis as an authority cannot be compelledto act illegally in a case for the mere reason that it has acted illegally inprevious cases. Equal treatment does not mean that one could actillegally to avoid discrimination.
Per Dr. Shirani Bandaranayake, J.
"A government authority will have to deal with all persons, may it be anappointment, promotion, transfer or a dismissal, in conformity with thestandard norms which are not arbitrary, irrational capricious or unreasonable.Equal treatment does not mean that one could act illegally to avoiddiscrimination".
APPLICATION under Article 126 of the Constitution.
Cases referred to:
C.W. Mackie and Co. Ltd. v Hugh Molagoda Commissioner-General ofInland Revenue and others 1986 1 Sri LR 300.
Gamaethige v Siriwardane and others 1988 1 Sri LR 384.
Jayasekera v Wipulasekara 1988 2 Sri LR 237.
J.V. Settyv Commissioner, Corporation of the City of Bangalore AIR 1968Mysore 251.
Ram Prasad v Commissioner of India AIR 1979 Raj. 131.
Chief Commissioner v Kitty Puri AIR 1973, Delhi 148.
Lakshman Keerthisinghe for 1 st, 2nd and 3rd petitioners.
Rajiv Goonetilleke SC for respondents.
Cur.adv.vult.
November 23, 2004
DR. SHIRANI BANDARANAYAKE, J.The petitioners were officers of the Sri Lanka Teacher EducationService (hereinafter referred to as SLTES) under the Ministry ofHuman Resources Development, Education and Cultural Affairsand claimed that at the time of the filing of this application they wereserving in Class II Grade I. The 1st petitioner was attached to theTeacher Education Institute at Saliyapura, Anuradhapura as theHead of the Institution whereas the 2nd and 3rd petitioners werethe Acting President of the Wayamba National College of EducationBingiriya and National College of Education, Adalachchenai,respectively.
Amunupura Seelawansa Thero and others v Additional Secretary,
SC Public Senrice Commission and others (Dr. Shirani Bandaranayake.J.) 367
The petitioners claim that their fundamental rights guaranteed interms of Article 12(1) of the Constitution were violated by the 1st tothe 10th respondents by their decision, allowing some officers whowere similarly circumstanced to be promoted to Class 1 of theSLTES and by cancelling the promotions given to the petitioners.They prayed for an order from this Court directing the 1st to 10threspondents to reinstate the petitioners in Class 1 of the SLTESwith effect from 15.05.2002.
This Court granted leave to proceed for the alleged infringementof Article 12(1) of the Constitution.
The case for the petitioners' is as follows:
By a circular dated 17.09.2001, issued by the 1st respondent,addressed to all Heads and/or Presidents of Institutions engaged inTeacher Education under the Ministry of Human ResourcesDevelopment, Education and Cultural Affairs, applications wereinvited from suitably qualified persons in Class II Grade I forconsideration for promotion to Class I of the SLTES (P1).
The three petitioners had applied for the said promotion andthey were interviewed on 18.02.2002 (P2). According to thepetitioners, about 30 officers of Class II Grade I had faced theinterviews out of which six persons (6) were selected forpromotions to Class I, which included the three petitioners.
By letters of appointment dated 05.05.2002, issued by the 1strespondent, the petitioners were promoted to Class I of the SLTESwith effect from 15.05.2002, (1P1, 2P1 and 3P1). On or about
the petitioners had received letters from the 1strespondent, informing the petitioners that their promotions to ClassI of the SLTES have been cancelled with immediate effect as theEducation Service Committee has observed that the saidpromotions have been effected in violation of the Constitution of theSLTES (1P2, 2P2 and 3P2).
The petitioners submitted that although their promotions werecancelled, nine officers who were similarly circumstanced on thebasis of their qualifications and service in Class II Grade I werepromoted to Class I with effect from 15.11.1999 by the predecessorto the 1st respondent and the said promotions were not cancelled
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(P7). The petitioners further submitted that although the officerswho were similarly circumstanced were promoted in 1999, suchpromotions were backdated without any cancellation whereas withsuch backdating the 2nd petitioner's promotion was subsequentlycancelled. The 1st and the 3rd petitioners were never given anysuch backdating.
The petitioners claimed that by the cancellation of theirpromotions to Class I when there were similarly circumstancedofficers whose promotions were not annulled, the petitioners weresubjected to arbitrary, capricious and discriminatory treatment by the1st to 10th respondents.
The respondents have clearly stated their position in the affidavitof the 2nd respondent, viz., the Chairman of the Public ServiceCommission. Their contention is that there is a mandatoryrequirement in terms of the Minutes of the SLTES Service and theGazette Extraordinary No. 1070/13 dated 11.03.1999 (P3), that anapplicant for promotion to Class l of the SLTES should have aminimum of five years satisfactory service in Class II Grade I of theSLTES. Accordingly the 2nd respondent has taken the position thatthe petitioners were promoted to Class II Grade I of the SLTES witheffect from 01.09.2000 and their applications for promotions weremade only in September 2001 which is just after one year of servicein Class II grade I of the SLTES.
With regard to the alleged discriminatory treatment, the 2ndrespondent submitted that in 1999, the nine applicants who werepromoted had applied for Class I whereas the petitioners at that time,had applied for Class II Grade I. Therefore, the 2nd respondentcontended that the petitioners and the nine others had not applied forthe same promotion and hence the marks obtained by individualapplicants or the comparison with the nine others referred to by thepetitioners is irrelevant and unwarranted. The said nine applicantsapplied and were promoted to Class I in 1999, whereas thepetitioners had applied for Class I promotions only in 2001. The 2ndrespondent therefore submitted that there cannot be any comparisonbetween the nine others and the petitioners as they do not comewithin the same class.
Amunupura Seelawansa Them and others v Additional Secretary,
SC Public Service Commission and others (Dr. Shirani Bandaranayake.J.) 369
It is common ground that the petitioners applied for promotion toClass I of the SLTES in terms of the advertisement dated 17.09.2001.According to the said advertisement a person had to possess thefollowing, to be eligible for such promotion:
five years satisfactory service in Class II Grade I; and
be confirmed in Class II Grade I.
The petitioners were promoted to Class II Grade I by letter dated
with effect from 01.09.2000 (2R1, 2R2 and 2R3).Applications for the promotion to Class I were called on 17.09.2001and admittedly by that time, the petitioners had just completed only oneyear in Class II Grade I. The petitioners were confirmed by letter dated
(1P7) and the closing date for the said promotions was on
According to the letter of confirmation it was to be effectivefrom 01.01.1995. This letter was however cancelled by letter dated
and the confirmation in the post of Class II Grade I was tobe with effect from 01.09.2000 (IP5 and 1P6). Accordingly at the timeof the closure of the applications for the said positions the petitionersdid not have five years satisfactory service in Class II Grade 1.Moreover, they were not even confirmed in that Grade as the letters ofconfirmation, though backdated with effect from 01.09.2000 were sentonly in 2002. Therefore the petitioners at the time they made theirapplications, were not qualified even to be considered for promotion toClass I of the SLTES.
The petitioners contended that when applications were called forthe promotions to Class I, what was stated was that it should be fromofficers with satisfactory service of not less than five years in a post'scheduled under Class II Grade I of the service'. The contentionwas that as the word used was 'scheduled' and not the word 'under'alone, what it conveyed was that the persons who have been acting insuch positions for the said period and later confirmed in such postswere also eligible to apply for promotion to Class I. The petitionerscontended that they were confirmed officers in Class II Grade I.
Although the petitioners were confirmed in Class II Grade I theywere so confirmed only on 01.09.2000. It is common ground that theapplications were called and interviews were held in February 2002.The basic requirements for the promotions to Class I included theapplicants to have five years satisfactory service in Class II Grade I.
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The petitioners have not shown that they have fulfilled this basicrequirement and one cannot see as to how they could be qualified forpromotions without the basic qualifications.
The petitioners referred to promotions to Class I in 1999 where nineofficers were promoted from Class II Grade I to Class I of the SLTES.Their position was that, at that time those nine officers did not have fiveyears even in an acting capacity in Class II Grade I. Therefore thepetitioners' claim was that they have been treated differently whenthose persons were promoted to Class I without considering the basicqualifications. However, it is to be noted that the petitioners, to beginwith have not made those nine persons respondents to this application.Therefore the petitioners cannot now challenge their appointments.Furthermore the petitioners and those nine promotees were notconsidered for promotions to Class I of the SLTES at the same time,as those promotees had applied and were promoted in 1999 whereasthe petitioners had applied for Class I promotions only in 2001.
Be that as it may, it is now well settled law that every differentiationis not a discrimination and classification which could be identified as'good and valid' cannot be treated as arbitrary. As pointed out by JainKagzi, (The Constitution of India, Vol 11 pg. 210) for a classification itwould be necessary to satisfy two basic considerations which are asfollows:
that the classification must be founded on an intelligibledifferentia which distinguish persons that are grouped in fromothers who are left out of the group, and
that the differentia must bear a reasonable, or a rational relation <to the objects and effects sought to be achieved.
The basic norm therefore is that unequals cannot be treated asequals as well as equals cannot be treated as unequals. Equalopportunity therefore is for equals who are similarly circumstanced inlife.
The petitioners' reference to promotions to Class I in 1999, toindicate unequal treatment cannot therefore be taken into account toshow that the denial of promotions to petitioners to Class I in 2001 isdiscriminatory for several reasons. Firstly, the first set of promotionswere in 1999 and the promotions in question were made in 2001.
Amunupura Seelawansa Thero and others v Additional Secretary,
SC Public Service Commission and others (Dr. Shirani Bandaranayake.J.) 371
Therefore these promotions belong to two different groups and cannotbe considered as promotions that were given on a comparative basis.Secondly, according to the documents dated 09.07.1999 (1P9) and27.09.1995 (2P7), the backdating of appointments given to petitionerswere on the basis of Cabinet decisions. Thirdly, as submitted by thelearned State Counsel for the respondents quite correctly, thepromotions which were given in 1999, the Cabinet of Ministers hadacted in terms of Article 55(1) of the Constitution which empoweredthem to take decisions regarding appointments. Since the enactmentof the 17th Amendment to the Constitution, the Public ServiceCommission is empowered to make appointments. The cumulativeeffect of these provisions is that, the Public Service Commission nowhas to function in terms of the Minutes of the SLTES which areapplicable for the relevant promotions. Therefore there is no possibilityfor the Public Service Commission to act contrary to the said Minutesof the SLTES with regard to the promotions to Class I.
It is not disputed that the petitioners neither had five years service inClass II Grade I of the SLTES nor confirmed in that Grade at the time oftheir applications for promotion to Class I of the SLTES. Therefore, in asituation where the petitioners have not fulfilled the requirements to bepromoted to Class I, it would be contrary to law if the Public ServiceCommission takes steps in order to promote them. In fact the decisionin C. W. Mackie and Co. Ltd. v Hugh Molagoda, Commissioner-Generalof Inland Revenue and others^') had considered the legal point in issueand it was held that Article 12 of the Constitution guarantees equalprotection of the law and not equal violation of the law. Stating that, forthe complaint of unequal treatment to succeed he must demonstrateunequal treatment in the performance of a lawful act, Sharvananda,C.J., was of the view that,
"But the equal treatment guaranteed by Article 12, is equaltreatment in the performance of a lawful act. Via Article 12, onecannot seek the execution of an illegal act. Fundamental to thispostulate of equal treatment is that it should be referable to theexercise of a valid right, founded in law in contradistinction to anillegal right which is invalid in law."
A similar view was taken in Gamaethige v Siriwardene andothers((2) and in Jayasekera v Wipulasekera.W
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In Gamaethige's case the petitioner was the General Secretary ofthe Sri Lanka Government Clerical Union and was released for full timeTrade Union work. In view of petitioner’s participation in a strike from17.07.1980 to 12.08.1980, he was treated as having vacated hisemployment, but later on appeal he was reinstated. Earlier in 1973 thepetitioner's name had been registered in the waiting list forGovernment Quarters. In June 1984 prior to the petitioner'sreinstatement in service, the petitioner's eligibility for quarters was re-examined, and upon it being reported that he was not in service, hisname was deleted from the waiting list for Government Quarters. Healleged discrimination stating that preferential treatment was accordedto the respondent and four others who were not in the waiting list andanother employed on contract after retirement who had been givenGovernment Quarters though their names were not in the waiting list.Referring to the complaint made by the petitioner and consideringwhether there was any infringement of Article 12(1) of the Constitution,Fernando, J. observed that,
"Here the petitioner's allegation that these persons were not in thewaiting list and/or were not eligible for General Service Quartersamounts to an allegation that quarters were allocated in breach ofthe relevant rules. Two wrongs do not make a right, and on proofof the commission of one wrong the equal protection of the lawcannot be invoked to obtain relief in the form of an ordercompelling commission of a second wrong."
An identical view was taken in Jayasekera's case {supra) whereG.RS. de Silva, J. (as he then was) citing TV. Setty v Commissioner,Corporation of the City of Bangalore<4> stated that, the authoritiescannot act illegally in one case because they have acted illegally inother cases.
A similar approach was taken by the Indian Courts in theapplicability of Article 14 of the Indian Constitution which is thecorresponding Article to Article 12 of our Constitution. In RamPrasad v Union of Indian it was stated that,
“the guarantee under Article 14 cannot be understood asrequiring the authorities to act illegally in one case because theyhave acted illegally in other cases. No one can contest that awrong must be extended to him as well in order to satisfy theprovisions of Article 14."
Amunupura Seelawansa Thero and others v Additional Secretary,
SC Public Service Commission and others (Dr. Shirani Bandaranayake.J.) 373
"In Chief Commissioner v Kitty Puri (6) it was clearly stated that,
“But the respondent No. 1 cannot contend that because thesociety and the government have illegally shown favour to somepersons, then this Court must compel them to commit anotherillegality to show favour to respondent No. 1 in the same way. Thisis not the meaning of equality guaranteed by Article 14 of theConstitution."
On a consideration of the aforementioned material placed beforethis Court it is evident that, although there may have been promotionsmade consequent to backdating of appointments to Class II, Grade I,the petitioners cannot now rely on such appointments and seek to bepromoted to Grade I on that basis, as an authority cannot be compelledto act illegally in a case for the mere reason that it has acted illegally inprevious cases.
A government authority will have to deal with all persons, may it bean appointment, promotion, transfer or a dismissal, in conformity withthe standard norms which are not arbitrary, irrational, capricious orunreasonable. Equal treatment does not mean that one could actillegally to avoid discrimination.
For the reasons aforesaid, I hold that the petitioners have not beensuccessful in establishing that their fundamental rights guaranteed interms of Article 12(1) were violated by the respondents. Thisapplication is accordingly dismissed. In all the circumstances of thiscase there will be no costs.
JAYASINGHE, J.I agree.
UDALAGAMA, J.I agree.
Application dismissed.