034-SLLR-SLLR-2002-V-1-UPASENA-v.-RICHARD-PATHIRANA-MINISTER-OF-EDUCATION-AND-HIGHER-EDUC.pdf
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Upsena v. Richard Pathirana, Minister of Education and
Higher Education and Others
321
UPASENA
v.RICHARD PATHIRANA,
MINISTER OF EDUCATION AND HIGHER EDUCATIONAND OTHERS
SUPREME COURTISMAIL, J.,
WIGNESWARAN, J. ANDJ. A. N. DE SILVA, J.
SC (FR) APPLICATION NO. 50/99MARCH 14, 2002
Fundamental Rights – Refusal of second extension of service – Whether a Cabinetdecision prohibiting extension of services beyond 55 years has retroactiveoperation.
The possession of a postgraduate degree from a recognized University was acondition of eligibility for appointment to the post of President, Hapitigama Collegeof Education. The petitioner did not possess that qualification. However, theEducation Committee of the Public Service Commission appointed the petitionerto that post with effect from 01. 06. 1993 subject to the condition that he acquiressuch qualification within a period of three years. Consequently, the petitionerobtained the degree of Master of Education from the University of Colombo in1994 and was confirmed in his post with effect from 01. 06. 1993. On reachingthe 55th year on 17. 10. 1997 the optional age of retirement, he was grantedhis first extension of service for one year.
The petitioner's application for a second extension of service from 17. 10. 1998to 16. 10. 1999, recommended by the Chief Commissioner of the College ofEducation (5th respondent) was submitted to the Secretary, Ministry of Education(2nd respondent). Although there was no reply to that letter, the petitioner continuedto work till 31. 12. 1998 and was paid his salary. By letter dated 15. 12. 1998the petitioner was informed that he could not be granted an extension beyond56 years.
The defence urged on behalf of the respondents that by a Cabinet decision dated
12. 1997 it was decided not to grant extension of services to persons who
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had been appointed outside the approved scheme of recruitment and that thesaid decision applied to the petitioner as he did not possess a postgraduate degreefrom a recognized University and fifteen years' experience at the time of hisappointment as President, Hapitigama College of Education.
Held:
The petitioner had complied with the direction given to him to acquire apostgraduate qualification. After confirmation in the post upon such com-pliance, he was given an extension of services. The Cabinet decisionreferred to should be applied prospectively and not retrospectively.
In the circumstances, the decision not to extend the petitioner's servicesbeyond 56 years was unreasonable and arbitrary and violative of his rightsunder Article 12 (1) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
R. K W. Goonasekara with Upul Jayasooriya for petitioner.
Saleem Marsoof, PC Additional Solicitor-General with I. Demuni de Silva, SeniorState Counsel for respondents.
Cur. adv. vult.
May 31, 2002
J. A. N. DE SILVA, J.
The petitioner's complaint is in respect of the refusal to grant him 1his second extension of service as the President of the HapitigamaCollege of Education at Mirigama, a college established under theCollege of Education Act, No. 30 of 1986.
The petitioner who is a Commerce Graduate from the VidyodayaUniversity was appointed as a Graduate teacher at Deiyandara MahaVidyalaya, Matara, with effect from 26. 07. 1970. Subsequently, hewas promoted as an Acting Principal and a Teacher Trainee Instructor
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Upsena v. Richard Pathirana, Minister of Education and
Higher Education and Others (J. A. N. De Silva, J.)
323
attached to the Colombo South Education Office at Green Path. Asevidenced by document P1c he obtained a Postgraduate Diploma in 10Education from the University of Colombo in 1979.
In 1986, when Colleges of Education were established under theColleges of Education Act, No. 30 of 1986, he was appointed as anAssistant Lecturer, Grade 1, at the Mirigama Hapitigama College ofEducation with effect from 01. 01. 1985 with the approval of theCabinet of Ministers. Thereafter, the Education Service Committee ofthe Public Service Commission promoted him to the post of Deanof the said College with effect from 01. 11. 1986 {vide P4b (1) andb (11) and as the Acting Vice-President on 01. 03. 1990.
.• In early 1993, the petitioner made an appeal to the former President 20of Sri Lanka who was also the Minister of Education seeking con-firmation in the said post. Although the said appeal had been forwardedto the Education Service Committee of the Public Service Commissionwith an endorsement by the President to confirm the petitioner alongwith two others similarly circumstanced, viz Mrs. V. Marimutthu, ActingPrincipal of Sripada College of Education and Mr. A. R. A. Aziz, ActingPresident of, Addalachchenai College of Education, the EducationService Committee by letter dated 22. 06.1993 informed the Secretaryto the Ministry of Education of its inability to do so as all three hadnot possessed the qualifications stipulated in the relevant Scheme of 30Recruitment. In this backdrop the Minister of Education submitted aCabinet Paper seeking approval to appoint Principals of TechnicalColleges and Presidents of Colleges of Education who have completedat least one year of satisfactory service as at 01. 06. 1993 and thisproposal was approved on 07. 07. 1993. Thereafter, by letter markedP4 (D) the Education Service Committee of the Public ServiceCommission appointed the petitioner to the post of President, HapitigamaCollege of Education with effect from 01. 06. 1993, subject to thecondition that he should obtain a Postgraduate Degree from a rec-
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ognized University within a period of three years. As evidenced by 40document marked P1 (6) the petitioner had obtained the degree ofMaster of Education from the University of Colombo in 1994 and wasconfirmed in the said post with effect from 01. 06. 1993 (P11). Whenthe petitioner reached the fifty-fifth year on 17. 10. 1997, the optionalage of retirement from the public service, he applied for an extensionwhich was duly granted for one year in terms of the EstablishmentsCode. He submitted an application for the second extension of servicefor the period 17. 10. 1998 to 16. 10. 1999 to the Secretary to theMinistry of Education through the Chief Commissioner of the Board(5th respondent) who recommended it. Although there was no reply soto that letter the petitioner continued to work till 31. 12. 1998 andwas paid his salary. By letter dated 15. 12. 1998 (P9) the petitionerwas informed that an extension could not be granted to him beyond56 years.
Learned Counsel for the petitioner submitted that the refusal togrant the 2nd extension was arbitrary and unreasonable and consti-tutes a violation of the petitioner's fundamental rights guaranteed underArticle 12 (1) of the Constitution of the Democretic Socialist Republicof Sri Lanka.
Mr. Marsoof, PC, Additional Solicitor-General who appeared for the 60respondents submitted that the refusal of the second extension bythe Education Services Committee of the Public Service Commissionwas justified in view of the Cabinet decision dated 25. 11. 1998 (4R.1)which was based on an earlier Cabinet decision. Mr. Marsoof, PCsubmitted that on or about 03. 12. 1997, the Cabinet of Ministersdecided that the services of persons who have been appointed toany management or administrative post in the cadre of any EducationalInstitute outside the approved scheme of recruitment should not beextended beyond the age of 55 years. He drew the attention of Courtto the Cabinet Memorandum dated 28. 11. 1997 and the Cabinet 70
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Upsena v. Richard Pathirana, Minister of Education and
Higher Education and Others (J. A. N. De Silva, J.)
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decision dated 03. 12. 1997 and also to the circular letter dated22. 06. 1998 issued to the Secretary to the Ministry in terms of thesaid Cabinet decision. It was the contention of the respondents thatat the time of the petitioner's appointment to the post of Presidentof Hapitigama College of Education, the petitioner did not possessthe requisite qualifications applicable to the post namely, a postgradu-ate degree from a recognized University and fifteen years experience.Therefore, the decision of the Cabinet not to allow such persons'extensions beyond 55 years applied to the petitioner.
It is observed that when the petitioner was appointed as the eoPresident of the Hapitigama College on a Cabinet decision he wasgiven three years time to obtain a postgraduate qualification whichhe lacked at the time of the appointment. The petitioner obtained thisrequisite qualification within the stipulated period. The petitioner's firstextension in service was duly granted by the Secretary of the Ministryof Education (P 6). It is also to be noted that the petitioner was madepermanent in his post of President, Hapitigama College of Educationby the Secretary to the Education Committee, after being satisfiedthat the petitioner was qualified to be made permanent (vide P 11).The petitioner's 2nd extension too had been recommended by the 90Chief Commissioner of the Colleges of Education Board, the 5threspondent in this case. With this second extension the petitioner'scase slipped outside the purview of the Cabinet decision since thedecision is to be interpreted as prospective and not retrospective.
In any event on the question of the requisite experience it isobserved that the Education Department had not found anythingwanting in his administration during the relevant period. In fact, theconfirmation of the petitioner in the post was an indication that hewas an able administrative officer.
It is also to be noted that the petitioner's case is different to that 100of Mrs. Marimuththu and Mr. Aziz who were also appointed as Presidents
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of Education Colleges. There is nothing to establish that theabovementioned two were required to obtain the necessary educa-tional qualification with their appointments. Even if their appointmentswere conditional it may be that they were not confirmed in their postsdue to their failure to fulfil the conditions after the appointment.
In the circumstance of this case I hold that the decision not toextend the services of the petitioner beyond 56 years was unreason-able and arbitrary and constitutes a violation of the petitioner'sfundamental right guaranteed under Article 12 (1) of the Constitution.I, therefore, direct that he be paid a sum of Rs. 75,000 as compen-sation by the State. The petitioner is also entitled to a sum ofRs. 5,000 as cost of this application.
ISMAIL, J. – I agree.WIGNESWARAN, J. – I agree.
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Relief granted.