029-SLLR-SLLR-2003-1-THIRANAGAMA-v.-MADIHAHEWA-COMMISSIONER-GENERAL-OF-LABOUR-AND-OTHERS.pdf
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THIRANAGAMA
v.MADIHAHEWA, COMMISSIONER-GENERAL OF LABOURAND OTHERS
SUPREME COURTFERNANDO, J.
EDUSSURIYA, J., ANDWEERASURIYA, J.
SC (FR) APPLICATION No. 28/200227 SEPTEMBER, 2002.
Fundamental Rights – Appointment of Labour Officer on results of a LimitedCompetitive Examination – Reliance on irrational criteria in making appoint-ments – Article 12(1) of the Constitution.
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Thiranagama v Madihahewa, Commissioner-General of Labour
and others (Edussuriva. J.)
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The petitioner was an Inspector of Internal Trade, Grade II, in the PublicService. He was permitted to sit a Limited Competitive Examination and inter-viewed for selection as a Labour Officer in 1999. He obtained 115 marks.Whilst the 10th, 11th and 12th respondents who also obtained 115 marks wereappointed as Labour Officers, Class II, the petitioner was not given an appoint-ment. 13th to 25th respondents who had scored lesser marks were also givenappointments as Labour Officers. Class II. In 1994 also, one Wickremanayakeand in 1997 one Wijesinghe who were Inspectors of Internal Trade had beenappointed as Labour Officers on the results of a Limited CompetitiveExamination.
The petitioner had the qualifications stipulated by the scheme of recruitment inthat he was a confirmed officer with 5 years of service and a graduate of a rec-ognized university.
The Commissioner-General of Labour (the first respondent) urged that accord-ing to the scheme of recruitment applicable to the petitioner, he had to be anemployee in the clerical or “allied grades” of the public service and that onlyInspectors of Trade, Grade I were within the expression “allied grades", but notthe petitioner who was a grade II officer. The evidence showed that in theSinhala version of the scheme in 1994, 1997 and the current scheme whichwas used, the expression “allied grade” which appeared in the English versionwas not there. Instead the Sinhala version referred to parallel grade, (oetofaidse$-d»02s)
Held:
It was neither rational nor in accordance with the Sinhala version of thescheme to have taken the view that Inspectors of Trade, Grade II, werenot employees in the clerical or “allied grades” in the Public Service andthat the petitioner was not eligible for appointment as a Labour Officer.
The petitioner’s rights under Article 12(1) of the Constitution had beeninfringed.
APPLICATION for relief for infringement of fundamental rights.A.H.H. Perera for petitioner.
Nihal Jayawardena, Senior State Counsel for Attorney General.
Cur.adv.vult
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February 11,2003EDUSSURIYA, J.
The Petitioner joined the Public Service as an Inspector ofInternal Trade, Grade II on 15/11/1991 and at the dates relevant tothis application held the same post.
The Petitioner states that pursuant to a notice published inGazette No. 1144 dated 04/08/2002 (Document A) relating to aCompetitive Examination to be held for the recruitment of LabourOfficers he applied to sit the Limited Competitive Examination ashe was qualified in terms of paragraph 3 (iv)(b) of the notice.
Although the 9th Respondent Commissioner-General ofExamination at first rejected the Petitioner’s application, on appealthe 9th Respondent permitted the Petitioner to sit the examina-tion.The Petitioner then sat the Limited Competitive Examinationon 21/01/2001, and that he was thereafter called for an interview isnot disputed. However on 24/12/2001 he had come to know that hehad not been selected for appointment although he had beenranked 84 with a score of 115 marks, although the 10th, 11th and12th Respondents who were of equal rank with 115 marks hadbeen appointed Labour Officers Class II.
The Petitioner complains that 13th to 25th Respondents whohad scored lesser marks than he had, also received appointmentsas Labour Officers Class II. On inquiring (from the 1st Respondent)he had come to know that he had not been appointed as he wasnot an officer who fell within the meaning of the term Allied Gradeas set out in Gazette Notification dated 04/08/2000.
The Petitioner states that in 1994 one K.P.A.S.Wickremanayake, and 1997 one D.L.J. Wijesinghe who wereInspectors in the Department of Internal Trade had been appointedLabour Officers on the results of the Limited CompetitiveExamination.
The 1st Respondent by his affidavit of 14/05/2002 has statedthat only officers who were in confirmed permanent employment inthe clerical or allied grades in the Public Service or the ProvincialPublic Service for a period of 10 years or more were qualified for
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Thiranagama v Madihahewa, Commissioner-General of Labour
and others (Edussuriva. J.)
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recruitment and that upon request by the Secretary to the Ministryof Labour, the Director of Establishment had clarified what wasmeant by Allied Services and also referred to Gazette Notificationdated 12/03/1999 (1R 2(a)). However, the Gazette Notification call-ing for appointments in this instance required 5 years of service.
The 8th Respondent by his affidavit stated that in terms of theGazette Notification of 12/03/1999, Grade I Inspectors of InternalTrade and Commerce were eligible but that the Petitioner being aGrade II Inspector was not eligible.
Therefore the position taken up by the 1st and 8thRespondents is that the Petitioner was not eligible to sit the LimitedCompetitive Examination according to the latest recruitment proce-dure. It is also the position of the 1st Respondent that K.P.A.S.Wickremanayake and D.L.J. Wijesinghe were appointed in accor-dance with the recruitment procedure that was in force at the timethey were appointed Labour Officers and that the present recruit-ment was carried out in accordance with the new procedure intro-duced in 2000, and that according to that recruitment procedure1R1 of 4/5/2000, the Petitioner was neither in the clerical servicenor was he in an allied grade because only Inspectors of InternalTrade Grade I fell within the term “allied grades” and not Inspectorsof Internal Trade Grade II.
Linder paragraph 3 (iv)(b) candidates who completed 5years of service in the Government Service or the LocalGovernment Service in a Clerical or Allied Grade up to closingdate of application and have been confirmed in service and pos-sess a Degree from a recognized University are eligible to sit theLimited Competitive Examination. The Petitioner holds a Degreefrom the University of Colombo and has completed 5 years of ser-vice as an Inspector of Internal Trade and has been confirmed inservice. The only question to be decided is whether he, anInspector of Internal Trade belongs to a Grade which is Allied tothe Clerical Service.
It must be mentioned at the very outset that paragraph 5 II (b)of the Sinhala Gazette of 4/8/2000 1R1 refers to those who are inGovernment Service or Local Government Service in a clerical orparallel grade, and not Allied Grade as set out in the English
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Gazette of the same date. The Sinhala words used are “eSasfod
Se^€Sc325>”
The English Gazette Notification of 02/04/1993 calling forappointments for posts of Labour Officers referred to “GovernmentClerical Service or Parallel Service” and not Allied Service. So that,although the words “Allied Service” are used in the English GazetteNotification in response to which the Petitioner applied, in theSinhala Gazette Notification the words used were “esSostodas did the Sinhala Gazette Notification of 02/04/1993when Wickremanayake and Wijesinghe who were Grade IIInspectors of Internal Trade were recruited as Labour Officers.
Further, the Director of Establishment in his letter 1R2 of3/1/2002 refers to Parallel Grades (ra®3ate>d gg^). Therefore AlliedGrade must be understood to mean a Parallel Grade. Apart fromstating in his affidavit that Wickremanayake and Wijesinghe whowere Inspectors of Internal Trade as at the date of their recruitmentas Labour Officers were recruited according to the procedure pre-vailing at that time, no other reasons have been given.
If an Inspector of Internal Trade Grade II fell within a gradeparallel to Clerks, Typists, Stenographers, Book Keepers, StoreKeepers, Shroffs and Interpreters in 1993 and 1997, I fail to seehow it can be now said that an Inspector of Internal Trade drawingthe same salary (and in this case a graduate confirmed in serviceand having 5 years of service) does not fall within that category orclass of persons.
In this connection I may also refer to the Gazette Notificationdated 25th May 2001 (Exhibit I filed with the Counter Affidavit ofthe Petitioner) calling for applications to Class II, Grade II of the SriLanka Administrative Service in the North-East Province, 25thAugust 2001 at a salary of Rs. 97,500-15X2700-Rs. 138,000/-which is much higher than the salary scale of a Labour Officer towhich post the Petitioner applied in this instance, sets out thatLabour Officers as well as Inspectors of Internal Trade confirmed inservice with 5 years of service and a degree from a recognizedUniversity are eligible to apply. So that an Inspector of InternalTrade was treated as being on par with a Labour Officer.
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Thiranagama v Madihahewa, Commissioner-General of Labour
and others (Edussuriva. J.)
243
In the face of all this material I cannot see how theRespondents could even have sought to justify the position theyhave taken up.
In the cirumstances, I hold that the Petitioner’s fundamentalright guaranteed under Article 12 (1) of the Constitution of thiscountry has been violated and direct the Public ServiceCommission and 1st Respondent to appoint the Petitioner as aLabour Officer, Grade II in the Department of Labour on the sameterms and conditions as those Public Officers who were appointedLabour Officers, Grade II with effect from 26th November 2001 withback wages, allowances in excess of what he received during thesaid period from 26th November 2001 and also direct the paymentof compensation by the State and costs in a sum of Rs. 50,000within three months of today.
FERNANDO, J.-I agree.
WEERASURIYA, J.-I agree.
Relief granted.