045-SLLR-SLLR-2005-V-1-RANASINGHE-vs.-RATHNASIRI-AND-OTHERS.pdf

320Sri Lanka Law Repons(2005) 1 Sri L. R.
Marriages due to his optional retirement from the Public Service in termsof Public Administration Circular No. 44/90.
The petitioner has alleged that the 7th respondent who is the PrivateSecretary to the Minister had informed the 5th respondent by letter dated
thaUhe 1st respondent should be appointed to the relevantpost. His allegation is that as the direction to the 5th respondent wasgiven by the 7th respondent, there has been political intervention in thesaid appointment. Admittedly, the letter in question was written by the 7threspondent, However, he had written the letter in his capacity as the PrivateSecretary of the 6th respondent Minister and the contents of the letterclearly indicate that he is only conveying the decision of the Minister. Therelevant portion of the said letter is reproduced below :
SCRanasinghe vs Rathnasiri and others (Bandaranayake, J.)321
sitjustum”-, it was a science or understanding to discern between falsityand truth, between right and wrong, between shadows and substance,between equity and colourable glosses and pretences and not to doaccording to their wills and private affections (De Smith's Judicial Reviewof Administrative Action, 5th Edition 1995, pg. 298). However, in today’scontext what the Rule of Law demands is not to eliminate the widediscretionary power, but to see that the law is able to control its exercise. 'This does not mean that utilizing arbitrary power and having unfettereddiscretion in decision making process Can be countenanced. It is to beborne in mind that discretion should be exercised by a statutory bodystrictly according to law and according to the established procedure and,that means taking into account only the relevant considerations. Havingguidelines or principles according to which the discretion is to be exercisedwould be a clear exhibition of how a public authority has carried out-theadministrative authority vested in them. Referring to the concept of discretion,Lord Denning, MR, in Breenv Amalgamated Engineering Union.(1) stated that
“The discretion of a statutory body is never unfettered. It is a discretionwhich is to be exercised according to law. That means at least this :the statutory body must be guided by relevant considerations and notby irrelevant”
It is common ground that the 2nd to 6th respondents had unfettereddiscretion with regard to the selection of a Registrar of Births and Deathsof Uduwara Division and Registrar of Marriages of Raigam Korale Divison.However there is no material to indicate that the said respondents hadabused such discretion given to them in making the said selection. Althoughthere were no guildelines laid down, instead of any abuse, it appears thatthey have taken into consideration relevant criteria, in arriving at theirdecision. The sole basis for their selection according to the material availablebefore this court is the qualifications obtained by the applicants. The 2ndrespondent, in his affidavit averred that,
“I state that the 1st respondent is the most eligible candidate
amongst all applicants to be appointed to the advertised post of Registrar,whilst all candidates satisfied eligibility requirements relating toresidence, age, character, mental status, income, office facilities,handwriting etc., the educational qualifications of the 1st respondentare superior to the petitioner and other applicants (emphasis added)"
In the aforementioned circumstances, it cannot be said that the 2nd to5th respondents had acted arbitrarily abusing the discretion given to themfor the appointment of the Registrar of Births and Deaths for the UduwaraDivision and Registrar of Marriages for the Raigam Korale Division. Whendiscretion is exercised, taking into account all relevant considerations,then there cannot be a situation where the said decision could be regardedas taken arbitrarily and the said process will not fall into the categorywhich negates equal protection.
On a consideration of the aforementioned circumstances, I hold thatthe petitioner has not been successful in establishing that his fundamentalright guaranteed in terms of Article 12(1) of the Constitution was infringedby the 2nd to 7th respondents. This application is accordingly dismissed,but in all the circumstances of this case, without any costs.
DISSANAYAKE, J. -1 agree.
RAJA FERNANDO, J. -1 agree
Application dismissed.

322Sri Lanka Law Repons(2005) 5 Sri L. R.
It is thus apparent that although no guidelines were given with regard tothe selection of candidates in terms of the scheme of recuritment the 2ndto 6th respondents had made the selection not taking into account anyextraneous considerations, but on the basis of assessment of educationalqualifications of the applicants. This is further established by the lettersent by the 7th respondent to the 5th respondent on 24.06.2003 (P7)which is in the following terms :