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SLR-1996 Vol.1-P259

SLR - 1996 Vol.1, Page No - 259

SAMARASINGHE

v.

AIR LANKA LTD. AND OTHERS
SUPREME COURT

AMERASINGHE, J.

PERERA, J. AND

WIJETUNGA, J.

S.C. APPLICATION NO 275/93.

02 & 07 MARCH 1994.

Fundamental Rights-Constitution Article 12(1)-Equality and discrimination with reference to recruitment and promotion.

The post of International Relations Manager was created by upgrading Petitioner's present post. He had beenrecommendedfor
appointment by a duly constituted panel of high ranking -officialsincludingtheConsultanthimself-afterinternet
advertisement. The fact that he lacked a part of the stipulated experience at the time of hisapplicationshouldnothave
stood in the way. It was not an insuperable obstacle. In any event the 13th Respondent who wasappointedinpreferenceto
him had no experience at all. Further the avowed policy of Air Lanka was tofillsuchvacancies,tothemaximumextent
possible, by internal candidates. Yet the Petitioner was not only denied his promotion, but he nowfindshimselfcondemned
in these proceedings by the very management that took steps towards creating a post with a view to promoting him.
The allegations of incompetence, inefficiency andlackofresponsibilitylevelledagainstthePetitionerarewithout
foundation.
The Petitioner had a legitimate expectation of being appointed International Relations Manager.

The 1st Respondent had a legitimate interest and a public duty inensuringthatthebestcandidatewasappointed.The
salutary procedures and provisions for doing so were totally disregarded and the 13th Respondent wasappointedforreasons
that had no rational connection with the object of appointing the best qualified person. The Petitioner was consequentlynot
only treated unequally, but also offensively discriminated against. The discrimination was both unwarranted and invidious.
There was no vacancy advertised by Air Lanka in respect of which the 13thRespondent could have made an application. Hehas
secured his appointment as InternationalRelationsManagerotherwisethanthroughtherecognizedprocedureforsuch
recruitment. There is no justification for making such appointments by private negotiation, underaveilofsecrecy.The
13thRespondent does not have the basic requirements necessary for appointment as aManager,GradeM.1.Theappointment
depended upon the violation of the Petitioner's constitutional right to equality by thedemonstrationofunduepartiality
towards the 13th Respondent. I have no hesitation, therefore, in holding that his appointment is invalid. I directthatthe
appointment of the 13th Respondent be terminated forthwith.

Per Wijetunga, J.
"The principle of equality applies from the stage of one's recruitment to the statesectorrightuptotheendofone's
career. It applies to the ever important matter of promotions too. This Court has, in dealing withtheequalityprovisions
of the Constitution, insisted that while there should be proper schemes of recruitment andpromotion,theirimplementation
should not be tainted by caprice, bias or prejudice. Favouritism on the one hand or the evil eye ontheother,necessarily
militate's against the very concept of equality and should, therefore, be abhorred.Theremust,inthepublicinterest,
always be honesty, openness, and transparency in regard to executive or administrative acts.
APPLICATION for relief for infringement of fundamental rights.

R.K.W. Goonesekera with Jayantha de Almeida Guneratne and Francis Gunawardene for Petitioner.
K. C. Kamalasabayson D. S. G. with Mohan Peiris S. S. C. for 1st, 6th and 12th Respondents.
L.C. Seneviratne P.C. with Max Bastiansz for 7th to 11th Respondents.
Varuna Basnayake P.C. with S. J. Mohideen for 13th Respondent.

02 June, 1994.
WIJETUNGA, J.
The Petitioner who is the Senior International Relations Executiveofthe1stRespondent,AirLankaLtd.(AirLanka)
complains of the violation of his fundamental rights guaranteed by Article 12 (1)oftheConstitutionbyreasonofthe
appointment of the 13th Respondent to the post of International Relations Manager.
The Petitioner had joined Air Lanka on 16.11.88 as International Relations Executive, a post in Grade E IV of the cadre.The
vacancy had been duly advertised in the newspapers and the Petitioner claims that he wasselectedfromamonghundredsof
applicants, after several interviews heldbydifferentpanels.HehadthereafterbeenpromotedSeniorInternational
Relations Executive, Grade E V, on or about 20.12.89. He holds a Bachelor of Arts degree in GovernmentfromtheUniversity
of Essex and a Master of Arts degree in International Affairs from Columbia University. ThePetitionerclaimsthatinor
about October, 1992, he made a request that his position as Senior International Relations Executive be upgradedtoManager
level and in response to the said request the Consultant, InternationalRelationsandLegal('Consultant')hadaStaff
Vacancy Notice dated 23.11.92 (P3) published, inviting applications on or before 7.12.92 from confirmed staff of theCompany
for the said post. The vacancy was to be filled by internal recruitment. One of the requirements wasfiveyearsexperience
at Air Lanka, out of which two years should have been in the Senior Executive (E V) grade. The Petitioner duly submittedhis
application through the Consultant, who was his head of department, and wasinterviewedon13.1.93byapanelofhigh
ranking officials constituted for the purpose. He was the only applicant interviewed. On orabout23.2.93,thePetitioner
came to know through the Senior Manager, Human Resources Development (Human ResourcesManager)thatthoughtheinterview
panel had recommended his appointment, the Board of Directors at the time comprising the 2nd to 6th Respondents, haddecided
to defer the said appointment. The Petitioner then handed over a letter of protesttothe2nd Respondent,dated2.3.93
(P5).The Secretary to the Board of Directors informed him on 22.3.93 that theBoardwouldmeethimataBoardMeeting
scheduled for 25.3.93, but the said meeting did not take place. The Secretary's subsequent intimation to the Petitionerthat
his case would be taken up at the next Board Meeting also didnotmaterialise.Onorabout6.4.93thePetitionerwas
informed by the Consultant that the Board was considering appointing the 13th Respondent to the said post. Heinquiredfrom
the Petitioner whether in the circumstances he would wish to be transferred to anotherdepartmentasaSeniorExecutive.
When the Petitioner indicated that he did not favour such a course of action, he wasaskedbytheConsultantwhetherhe
would like a Manager-level position in either theCorporatePlanningorMarketingDivisions.Thissuggestiontoowas
rejected by the Petitioner who indicated to the ConsultantthathewasinterestedonlyinthepostofInternational
Relations Manager, since this was thepostwhichwasinkeepingwithhisqualifications,experienceandexpertise.
Thereafter, he handed over a letter dated 24.4.93 (P6) to the Consultant, complaining against the treatmentthatwasbeing
meted out to him and requesting him to inform the 2nd Respondent to deal with the matter in accordance withestablishedand
normal administrative procedures. Despite the protests of the Petitioner, the 13th Respondent was appointed tothepostof
International Relations Manager on or about 3.5.93.
The Board of Directors of Air Lanka was reconstituted in or about May, 1993. The Petitioner made a fresh appealtothenew
Board of Directors comprising the 6th to 11th Respondents. He also made this application to Court in terms of theprovisions
of Article 126(2) of the Constitution.
In response to the Petitioner's application, the 1st to 6th Respondents in their objections took upthepositionthatAir
Lanka was not an instrument and/or agent of the State and that the Petitioner was not entitled to maintainthisapplication
as the alleged acts or omissions complained of do not fall within thephrase'executiveoradministrativeaction.'They
further stated that the appointment of the 13th Respondent was proper, valid in law and not in violation ofanyfundamental
right. With regard to the circumstances leading to the appointment of the 13th Respondent,affidavitsweresubmittedfrom
the former Chairman, a former Director and the Human Resources Manager. An affidavit from the Consultant was also submitted.

The 7th to 11th Respondents who are the Chairman and members of the new Board of Directors (the6thRespondentwhowasa
Director of the former Board being a member of the present Board as well), statethatatthetimetheytookofficeas
Directors of Air Lanka, the contract of employment of the 13th Respondent had already been made and he had assumed officeas
International Relations Manager. They submit that they were advised that they are bound by the saidcontract.Theyfurther
state that they had not taken a decision in regard to the appeal made to the new Board ofDirectorsbythePetitioneras
this application was pending before Court. It is their submission that the decision not to promote thePetitionerdoesnot
amount to an actionable violation of the Petitioner's fundamental rights entitling him to reliefunderArticle12ofthe
Constitution.

The 13th Respondent admits that he assumed duties as International RelationsManageron3.5.93.Hestatesthathewas
admitted and enrolled as an Attorney-at-Law in November, 1989. In 1990, he became a graduate student at the Institute ofAir
and Space Law at McGill University, Canada, his academic and professional qualifications havingbeenconsideredsufficient
to exempt him from the requirement of a bachelor's degree. The course wasoftwoyearsdurationandhewasawardeda
Master's degree.
Prior to being appointed International Relations Manager, he was first interviewed by the Consultant andlaterbyapanel
comprising the 2ndRespondent, then Chairman of Air Lanka, the Human Resources ManagerandtheChiefFinancialOfficer.
Their recommendations were approved by the Board of Directors, subject to his appointmentbeingonacontractbasisand
limited to a period of two years initially. He denies that he has been unduly favoured and states thathisappointmenthas
been made on merit.
The 13th Respondent points out that the Petitioner's academic qualifications areofageneralnatureandnotspecially
oriented to aeronautical law or organization, that the Petitioner is not an Attorney-at-Lawandthathealsolackedthe
minimum 5 year employment qualification with Air Lanka. He submits that he hasbeenadvisedthatthepetitiondoesnot
disclose grounds entitling the Petitioner to relief under the provisions of Article 12 of the Constitution.
Although the learned Deputy Solictor-General, at the commencement of his argument, gave indications thathewouldmaintain
that the acts of Air Lanka did not constitute executive or administrative action, he withdrew from pursuing thequestionof
jurisdiction and confined himself to the facts.
Counsel for the other respondents too made no serious attempt to persuade the Court thattheactscomplainedofdidnot
amount to executive to administrative action within the meaning of Articles 17 and 126 of theConstitution.Inanyevent,
this question has been dealt with exhaustively by this Court in Rajaratne v. Air Lanka Ltd., (1) and I see no reason totake
a different view.

I have already set out the sequence of events leading to the exclusion of the Petitioner fromappointmentasInternational
Relations Manager.
Although the former Board of Directors failed to enlighten this Court of the circumstances in which the 13th Respondentcame
to make his application for this post, learned President's Counsel for the 7th to 11thRespondents who aremembersofthe
present Board of Directors, with exemplary correctness, submitted an affidavit on 7.3.94 from the presentCompanySecretary
and Secretary to the Board of Directors, together with copies of certain documents relevant to this matter.
It appears from the material so furnished that one Tissa Abeyratne, the former International Relations Manager of AirLanka,
had addressed a letter dated 21.11.91 (7 R4) to the former Chairman, the 2nd Respondent intheseproceedings,enclosinga
resume of the 13th Respondent's career, while the latter was still a student at Mc Gill University, recommending him"fora
management position.....in the marketing - legal field." By letter dated 25.1.92 (7R5) addressed to TissaAbeyratnebythe
Consultant, to whom the said letter had been referred, the Consultant has stated, inter alia, as follows:
"Chairman passed on to me your letter to him regarding Lasantha Hettiarachchi. We discussed the matter and Iindicated
to him that the applicant shows promise and should be invited over for a chat when he returns to Sri Lanka. Itappears
from your letter that he will be returning to Sri Lanka (if he has not done so already) after concluding his Masters.
I agree with you totally that he deserves a very close look for he shows signs of a person whocouldcontributevery
much to Airlanka. I would, therefore, suggest that you request him to contact me in Colombo and we couldthenhavea
preliminary chat with a view to finding out where exactly he could serve Airlanka best. He seems to have qualifications
which would serve both the Legal Division as well as International Relations. You have also referredtoaMarketing-
Legal field. Perhaps you could amplify on that."
Although the letter refers to Lasantha Hettiarachchi, the 13th Respondent, as the "applicant", he had made no applicationat
that stage. The 13th respondent's ?application' (7R6) is as follows :-
"Lasantha Hettiarachchi

437891
101/1 - 3/1 S.G.' s

Quarters

Kew Road, Colombo 2.
26 March, 1993.
Mr. Dunstan Jayawardene

Chairman/Managing Director
Airlanka Ltd.

York Street,

Colombo 1.

Sri Lanka.
Dear Mr. Jayawardene,
Further to our telephone conversation and the subsequent meeting I had with Mr. Shibly Aziz, I would like tosubmitan
application to be considered for the post of manager in the International Relations department of Airlanka.
In the course of my meeting with Mr. Aziz, he explained to me thepresentstructureoftheInternationalRelations
department, the possible entry level for a person with my qualifications andexperience,andthetypeofemolument
package I could expect from Airlanka.
I have come back to Sri Lanka with the intention of staying. I am prepared to give the best ofmybestyearstoour
national airline if presented with the proper opportunity and the commensurate compensation package.
I am looking forward to meeting with you and further discussing the possibility of working in International Relations at
Airlanka. A copy of my resume and copies of two letters of recommendation are submitted herewithforyourperusal.I
would be very grateful for an early response on this matter.
Thank You.

Yours sincerely,

(Signature)

The affidavit of the Human Resources Manager indicates that in accordance with the directive ofthethenChairman/Managing
Director, the 13th Respondent was called for an interview on 31.3.93 with theChairman/ManagingDirector,ChiefFinancial
Officer and the Human Resources Manager and his application "was accordingly recommended to the Board on a 02 yearscontract
on a Rs. 20,000/-monthly pay plus Rs. 2190/- entertainment allowance with official transport from home to office inlieuof
reimbursement of 30 gallons of fuel." The reason given for the post not being advertisedinthenewspapersisthat"the
recruitment was done only to find a person for a limited period of time."
It was the submission of the learned Deputy Solicitor - General' who appeared for the former Board ofDirectors,thatwhat
he called the "non appointment" of the Petitioner and the appointment of the 13th Respondent were separateissuesandthat
there was no nexus between them. He contended that if the matter was so viewed, thequestionofdiscriminationwouldnot
arise.

But the material before us is to the contrary. The letter of Tissa Abeyratne dated21.11.91(7R4)addressedtothethen
Chairman/Managing Director was without doubtasteptowardssponsoringthe13thRespondent,whowasyetatMcGill
University, for a suitable position at Airlanka. The Consultant's letter to Tissa Abeyratne dated 23.1.92(7R5)showsthat
discussions had already been held between the Chairman and the Consultantastothepossibilityoffindingasuitable
position for him. The Consultant, even at that stage, had expressedtheviewthatthe13thRespondent"seemstohave
qualifications which would serve both the Legal Division as well as International Relations". Theapplicationofthe13th
Respondent dated 26.3.93 (7R6) refers to a telephone conversation between him and the Chairman and a subsequent meetingthat
he had with the Consultant, further to which he was submitting his 'application'forthepostofManager,International
Relations.
In the meantime, the Petitioner had beeninterviewedon13.1.93byapanelofhigh-rankingofficialsincludingthe
Consultant, who had recommended him for the said post. The Petitioner had learntonorabout23.2.93throughtheHuman
Resources Manager that although the interview panel had recommended his appointment, the Board of Directors at that timehad
decided to defer the same. He had even handed over a letter ofprotest(P5)dated2.3.93.Itwason6.4.93thatthe
Petitioner had learnt that the Board was considering appointing the 13th Respondent.
The Consultant's affidavit too indicates that a few months after the Petitionerwasrecommendedforthesaidpost,the
former Chairman had asked him to meet and assess the 13th Respondent and ascertain his suitability to join the Departmentas
Manager. He further states that he met the 13th Respondent "a few times" and "was satisfied . . . that he wouldbesuitable
for a management position at International Relations and thereafter conveyed (his) views to the then Chairman"andthathe
believes that "the former Chairman had also interviewed him (the 13th Respondent) and come to the same conclusion."
Thus it is seen that the Consultant as well as the Chairmanhadsatisfiedthemselvesasregardsthe13threspondent's
suitability for the post even before he submitted his 'application'. It is futile, therefore, to suggest thattherewasno
nexus between the failure to appoint the Petitioner and the appointment of the 13thRespondent:Thelatterdisplacedthe
Petitioner from a position for which he had earlier been regarded as qualified. The appointment of the13thRespondentwas
necessarily conditional upon the removal of the Petitioner as a competitior.

The failure to appoint the Petitioner is sought to be justified by the former Board on thebasisthatthePetitionerwas
unsuitable for management responsibilities at that point in time. The Chairman in his affidavit states that herecallsthat
at the Board Meeting at which the recommendation to promote the Petitioner was discussed, the Board unanimouslydecidednot
to take action on the recommendation as in its view the Petitioner was not yet ready for a promotion. He further statesthat
it was the view of the members of the Board that "steps be taken to look for someone suitable, evenfromoutsideAirlanka,
since the only applicant who had applied pursuant to the Internal Staff Vacancy Notice was the Petitioner himself."
We do not know whether the Chairman at the time, namely the 2ndRespondent,madetheBoardofDirectorsawareofthe
lurking, albeit shadowy, presence of the 13th Respondent in Air Lanka from 1991/ 1992, as regards whose suitability forthis
post he had already formed a favourable opinion. That would have obviated the necessity "to look for someonesuitable".The
minutes of that Board Meeting, which are so vital to the matter under consideration, have curiouslynotbeenfurnishedto
us.

The alleged unsuitability of the Petitioner has to be examined in the light of certain other averments in paragraphs 6 and7
of the former Chairman's affidavit. He says that within the last yearofhistenureasChairman/ManagingDirector,the
Consultant brought to his notice and that of Mr. Wijayatilake, the 4th Respondent, who was anotherfellow-Director,certain
difficulties he experienced, due to constraints of time, of effectively supervising and managing the work of thisDepartment
and he requested him to provide him with a capable Manager to take over some of his responsibilities, leavinghimtoserve
in the capacity of a Consultant for which he was originally recruited. He discussed this matter with several seniorManagers
of Air Lanka who were familiar with the work performed by the International Relations Department, including the formerChief
Marketing Officer as well as the present Chief Marketing Officers, and it wasthegeneralconsensusthatsomeonefrom
outside the International Relations Department should be brought in at managerial level, since the most senior person inthe
International Relations Department, namely the Petitioner, was unsuitable for management responsibilitiesasyet.Hesays
that he as well as Mr. Wijayatillake fully concurred with these views, since both of them had first handexperienceofthe
work and disposition of the Petitioner.

Mr. Wijayatilake too, in his affidavit, states with specific reference to paragraphs 6 and7oftheChairman'saffidavit
that it sets out correctly the factual position and the conclusions which the Chairman and he had reached with regard tothe
Petitioner.
If, therefore, the general consensus was that the Petitioner wasnotsuitableforthepostofInternationalRelations
Manger, one fails to see why the management decided to engage in the futile exercise of invitingapplicationsfromwithin,
being well aware that the only likely internal candidate for that position would bethePetitionerhimself.Moreover,as
specifically admitted by the former Chairman and the Board ofDirectorsintheirstatementofobjections,itwasthe
Petitioner who, in or about October, 1992, requested thathispositionasSeniorInternationalRelationsExecutivebe
upgraded to Manager level and it was in response to that requestthattheConsultanthadaStaffVacancyNotice(P3)
published, in terms of which the said vacancy was to be filled by internal recruitment.

On the other hand, if the Board was not satisfied as regards the suitability of the Petitioner and was really lookingfora
more qualified person for this important post, it should in the best interests of AirLankahavecalledforapplications
from outside as well, without havingrecoursetowhatnowappearstobeashamrecruitmentprocedurebyinternal
advertisement.
Nor does the matter end there. The interview panel that recommendedthePetitionerforpromotionhadconsistedofthe
Consultant himself (who hadfunctionedasthePetitioner'sHeadofDepartmentsinceFebruary,1990),theTraining
Coordinator of Air Lanka, the Financial Advisor to the Chairman and a representative of the Ministry of PolicyPlanningand
Implementation. There is no gainsaying that the Consultant, directly under whom the petitioner worked,wouldhavehadthe
best opportunity of assessing the Petitioner's suitability for this post. As already mentioned, itwastheConsultantwho
had taken steps to upgrade the Petitioner's post by callingforapplicationsfromwithin,knowingverywellthatthe
Petitioner would be the obvious choice. The Petitioner's application (P4) had been submitted through the Consultanthimself,
who had recommended the same. But, the Consultant now says in his affidavit of 12.8.93 that some very senior Managers atAir
Lanka and the then Chairman and Mr. Wijayatillake, Director, were not satisfied with the Petitioner'sperformanceandthat
he had, on many occasions, informed the Petitioner of these criticisms andhadadvisedhimtoremedyhisshortcomings,
stating that he too had observed them.
If that was the Consultant's own assessment of the Petitioner, I fail to see why he should have taken stepstoupgradehis
post and even recommend him for appointment, particularly if, as he now claims, he was awarethattheChairman"wasvery
dissatisfied with him (the Petitioner) "and he too shared theconcernsoftheChairmanandMr.Wijetillakeaboutthe
Petitioner's inadequacies.
The Petitioner, in his counter affidavit dated 1.9.93, replying to the affidavits of theRespondents,categoricallydenies
that during his service he had ever been faulted or found wanting in his work. He further dismisses as falseandmalicious,
the allegations that he was unsuitable for management responsibilities,orlackedcompetenceandconfidence,orshowed
inability to effectively handle situations which required quick responses and reactions, or was carelessandirresponsible.
The Petitioner also points out that he received a promotion after one year in service and had earned his incrementsontime
- which is inconsistent with the position that he was inefficient or incompetent or that his work and conduct was in any way-
unsatisfactory and that on no occasion had there been any adverse comments in regard to the performance of his duties.

If the Petitioner was found wanting, as it is now alleged, one would have expected the management to bring thosemattersto
the Petitioner's notice in writing and even warn him suitably. On the contrary, the management not only gave him apromotion
but even took steps to upgrade his present post.
The Petitioner further states that during his career at Air Lanka he has been nominated by the Chairman, withtheagreement
of the Consultant, to attend about 35 airline meetings and about 30 bilateral (government-to-government)meetings.Evenin
July 1993, after the 13thRespondent had assumed duties, the Petitioner hadaccompaniedtheConsultantforabilateral
meeting in Japan.
The former Chairman, in his affidavit, states that notwithstanding the Petitioner's good academic background whichfurnished
him with an aptitude for research, he had noticed in him a "lack of competence and confidenceinotherareasrelatingto
international relations and an inability to effectively handle situations which required quick responses andreactions"and
that the Petitioner "often found it difficulttobringtosituationsapragmaticapproach,amajordisadvantagein
successfully handling communications or negotiations with other airlines and aviation authorities." Healso"foundhimat
times careless or irresponsible in matters entrusted tohim."Hesaysthathehaddiscussedthesematterswiththe
Consultant who informed him that he was also mindful of them and that he was trying his besttoassistthePetitionerto
overcome some of these difficulties, though he was unsure whether these could be remedied in a short time. Inthemeantime,
the Chairman says, "we decided to give him as much exposure and experience so that he could overcome them."

If so, one wonders whether such enormous expenditure of public funds in allegedly helping some one to overcomehispersonal
deficiencies can be justified? The Government of Sri Lanka admittedly holds approximately 95% shares of AirLankaandeven
the other shareholders are state sector institutions such as the Bank of Ceylon, People's Bank, National SavingsBank,Salu
Sala and the National Insurance Corporation. The material furnished bytheRespondents,however,doesnotwarrantthis
condemnation of the Petitioner. He was obviously included over and over again in the delegations because hehadapositive
contribution to make and not for altruistic purposes.

According to the promotion/recruitment procedure at Air Lanka (P7), where the level of a post tobefilledisthatofa
Departmental and Sectional Manager, the specific approval of the Chairman/Managing Director must beobtainedtofillsuch
vacancy. One can, therefore, assume that the steps taken to fill the post ofInternationalRelationsManagerbyinternal
recruitment had the sanction of the Chairman/Managing Director. It appears from the affidavit of the Human ResourcesManager
that, though the panel which interviewed the Petitioner had recommended him for selection,specialapprovalwasnecessary
for their recommendation as the Petitioner lacked the stipulated five years experience. That apparently wasthereasonwhy
the matter was brought to the notice of the Board at all.

It is admitted that the Petitioner had the requisite two years experience in the Senior Executive Grade (E V).Atthetime
of his application, however, he had completed only four years service at Air Lanka. The subsequentaffidavitoftheHuman
Resources Manager indicates that the practice had been for Board approval tobeobtainedinsuchsituations and,such
approval was ordinarily granted. In fact, a recommendation made in regard to a post of Manager (M 1) by the same panelwhich
interviewed the Petitioner had also been put to the Board for their approval, since the personrecommendedhadlackedthe
stipulated experience of two years in the Senior Executive Grade (E V), and the Board had approvedhisappointmentatthe
very meeting at which the recommendation in respect of the Petitioner was turned down.ThefactthatthePetitionerwas
short of the stipulated experience by one year at the time of his application would, therefore, not have stoodinhisway
the management itself does not seek to justify his non- appointment on that basis.

I shall now consider another aspect of the matter before us. The Consultant admits the receiptofthePetitioner'sletter
dated 24.4.93 (P6), which refers to two meetings between the Consultant and the Petitioner, both said to have beeninitiated
by the Consultant, which have a direct bearing on the circumstances surrounding the non-appointment of the Petitioner tothe
post in question. The Petitioner recapitulates the suggestions said tohavebeenmadebytheConsultantatthesetwo
meetings in considerable detail. He requests the Consultant "to inform the Chairman of the contents ofthisletterandto
transfer to him (his) request that this matter be handled through normal administrative procedures such aswereappliedat
the time of (his) recruitment".
The Consultant, in his affidavit dated 12.8.93, dealing with the said letter states at paragraph 11 as follows:
"I pointed out to the Petitioner that the said letter contained inaccuracies particularlyrelatingtotheofferof
alternative posts to the Petitioner and the role attributed to Mr. Tissa Abeyratne (as Mr. Abeyratne did notrecommend
that Mr. Hettiaratchi should be taken to Airlanka). I requested the Petitioner to correct themasotherwiseIshall
have no alternative but to send my comments to the ChairmanwhenforwardingP6.ThoughthePetitioneragreedto
consider this and revert to me, he has still not done so."
The Chairman and Directors of the former Board (other than the 6th Respondent) went out of office in May, 1993. Itdoesnot
appear that the letter P6 was forwarded even to the ChairmanofthepresentBoardofDirectors,withorwithoutthe
Consultant's comments. Despite the Consultant's observations to the contrary, the letter 7R4 of21.11.91showsthatTissa
Abeyratne did not in fact recommend the 13th Respondent to the then Chairman for a management position at Air Lanka.
P6 certainly was not a letter that could have been leftuncontradictedifitcontained"inaccuracies",judgingbyits
contents which were damaging not only to the Consultant, but to the management itself. But yet,therethematterremains.
One cannot, therefore, help but accept that it sets out accurately what wentonbehindthescenes,particularlyasthe
Petitioner stands vindicated in regard to the matter of Tissa Abeyratne's recommendation regarding the 13th Respondent.
So also, the letter of protest dated 2.3.93 (P5), handed over by the Petitioner to the then Chairman, thereceiptofwhich
has been admitted, which states, inter alia, as follows :
" . . . . . . I have no reason to think that the decision to defer my promotion wasduetoanydeficienciesinmy
educational background, sense of responsibility, loyalty to the company, discharge of duties or staff relations. If one
or more of these deficiencies was identified, I am sure that it would have been broughttomynoticeatsometime
during the past few years . . . ."
There again, the management chose not to respond, thus giving credence to the Petitioner'sdenialoftheallegationsnow
made against him.
It would be relevant at this stage to look at the qualifications and experience of the 13th Respondent. He hadobtainedhis
Master's degree from McGill University in October, 1992. His experience as an Attorney-at-Law inSriLankahadbeenfrom
November, 1989 to October, 1990, a period of less than one yearand his workasalawyerdidnotinvolveaviationor
related matters. He had no working experience whatsoever with any Airline.
In regard to the suitability of the 13thRespondent for appointmenttothispost,thethenChairmanstatesthatthe
Consultant who was requested to assess his suitability gave a very favourable assessment, which the Consultantinformedhim
was arrived at after several meetings which he had with the 13th Respondent.

The Consultant, however, states that he met the 13th Respondent a few times and was satisfied that he would besuitablefor
a management position at International Relations.
The then Chairman further states that he too met the 13th Respondent and was veryfavourablyimpressedwithhisacademic
qualifications and his overall personality and disposition.

From the application of the 13th Respondent, it appears that he has had a meeting with the Consultant prior tohisapplying
for the post. He goes on to say that he was lookingforwardtomeetingwiththeChairmanandfurtherdiscussingthe
possibility of working in International Relations.
In his affidavit, the 13th Respondent states that prior to his appointment he was interviewed firstbytheConsultantand
later by an interview panel comprising the then Chairman, the Human Resources Manager and the Chief Financial Officer.
The opportunities available to the management to assess the suitability of the 13th Respondent werethuslimitedtothose
mentioned above.

The Human Resources Manager, by way of justification of the procedure adopted in appointing the 13th Respondent, statesthat
"there are instances when the services of officers are needed to meetshorttermmanpowerrequirements,theyhavebeen
employed on contract basis without calling for applications for such posts in the press. Suchstepshavebeentakenonly
when the services of highly specialised personnel such as pilots, engineers andsimilarprofessionalsareneededdueto
exigencies of service". He further states that "the post was not advertised in the press since the recruitment was doneonly
to find a person for a limited period of time."
One cannot see the logic of his reasoning. Initially, steps were taken by theConsultanttoupgradethepostofSenior
International Relations Executive held by the Petitioner to that of International Relations Manager, at the instanceofthe
Petitioner himself and such appointment was sought to be made by internal recruitment.Theproposalwasnotintendedto
increase the cadre in the Department. In terms of the manual on promotion/recruitmentprocedure(P7),itisAirLanka's
policy that "to the maximum extent possible, vacancieswithintheapprovedestablishmentshallbefilledbyinternal
candidates". The Petitioner in his counter affidavit states that it wastheintentionoftheConsultantthatwiththe
Petitioner's appointment to the upgraded post of Manager (M 1), the post that he held (at E V) would be abolished.

If the Board was not satisfied with the recommendation made by the interview panelinregardtotheappointmentofthe
Petitioner, the only legitimate course open to it was to call forapplicationsfromexternalcandidates,throughproper
advertisement. There is no justification whatsoever for making such appointments by privatenegotiation,underaveilof
secrecy. Had it not been for the very proper step taken by learned President's Counsel for the presentBoardofDirectors,
even the circumstances surrounding the 'application' of the 13th Respondent would still have remained a mystery. We nowknow
that while the 13th Respondent was yet a student at McGill University, moves were afoot to find him a suitable placeatAir
Lanka. His appointment to the post in question was purely on the basis of his academic andprofessionalqualifications,in
total disregard, from a management point of view, of the sine qua non of experience.
The stipulated qualifications and requirements for a Sectional Manager, Grade M I at Air Lanka are:
Internal (Promotions) - 5 years experience at Air Lanka out of which 2 years should be in Senior Executive (E V) grade.
External (Recruitment) - A degree from a recognized university and 5 years managerial experience.
The emphasis placed on experience is thus quite evident.
The Petitioner's complaint is that his fundamental right to equality within the meaning of Article 12(1) of theConstitution
had been violated by the 1stand/or 2nd to 6th Respondents. The principle ofequalityappliesfromthestageofone's
recruitment to the state sector right up to the end of one's career. It applies to the ever importantmatterofpromotions
too. This Court has, in dealing with the equality provisions of the Constitution, insisted that while there should beproper
schemes of recruitment and promotion, their implementation should not be tainted by caprice, bias orprejudice.Favouritism
on the one hand or the evil eye on the other,necessarilymilitateagainsttheveryconceptofequalityandshould,
therefore, be abhorred. There must, in the public interest, always behonesty,openness,andtransparencyinregardto
executive or administrative acts.

The Petitioner, as is evident from the circumstances referred to above, hadalegitimateexpectationofbeingappointed
International Relations Manager. The post had been created by upgradinghispresentpost.Hehadbeenrecommendedfor
appointment by a duly constituted panel of high ranking- officials, includingtheConsultanthimself.Thefactthathe
lacked a part of the stipulated experience at the time of his application would not, as shown above, have stood inhisway.
It was not an insuperable obstacle. In any event, the person appointed inpreferencetohimhadnoexperienceatall.
Further, the avowed policy of Air Lanka was to fill such vacancies, to the maximum extent possible, byinternalcandidates.
Yet, the Petitioner had not only been denied his promotion, but he now finds himself condemned in theseproceedingsbythe
very management that took steps towards creating a post with a view to promoting him.

It must be emphatically stated that the material furnished to this Court by the management does not, in theabsenceofany
contemporaneous record showing that the Petitioner had been found wanting in any respectandthatappropriateactionhad
been taken in that behalf, justify the condemnation of the Petitioner. Theinabilityofthemanagementtofurnishsuch
documentary evidence inevitably leads to thepresumptionthattherewasnosuchmaterialavailable.Evenafterthe
Petitioner categorically denied all such allegations,bywayofcounteraffidavit,characterisingthemasfalseand
malicious, and in the face of his assertion that there had been no occasion for any adverse comments ontheperformanceof
his duties, the Human Resources Manager in his counter affidavit of 23.9.93, could not contradictthePetitioner,although
he made some inconsequential observations in regard to other matters of much less relevance and importance.

The allegations of incompetence, inefficiency and lack of responsibility levelled against thePetitionerarethuswithout
foundation. They evidently are ex post facto explanations in an attempt to justify the arbitraryandirrationalmannerin
which the 13th Respondent's appointment was made. They clearly show that the Petitioner was looked uponwithanevileye,
whereas the 13th Respondent was regarded with peculiar favour. The 1stRespondent had a legitimateinterestandapublic
duty in ensuring that the best candidate was appointed. The salutary procedures and provisionsfordoingsoweretotally
disregarded and the 13th Respondent was appointed for reasons that had no rational connection with the objectofappointing
the best qualified person. The Petitioner was consequently not only treated unequally,butalsooffensivelydiscriminated
against. The discrimination was both unwarranted and invidious.
I, therefore, hold that the Petitioner's fundamental rights under Article 12(1) of the Constitutionhavebeenviolatedas
aforesaid.
This brings me to the question of validity of the 13th Respondent's appointment. TherewasnovacancyadvertisedbyAir
Lanka in respect of whichthe13thRespondentcouldhavemadeanapplication.Hehassecuredhisappointmentas
International Relations Manager otherwise than through the recognized procedure for such recruitment. He does notevenhave
the basic requirements necessary for appointment as a Manager, Grade M 1. The appointment depended upon the violation ofthe
Petitioner's Constitutional right to equality by the demonstration of undue partiality towards the 13th Respondent. Ihave
no hesitation, therefore, in holding that his appointment is invalid. Accordingly, Idirectthattheappointmentofthe
13thRespondent be terminated forthwith.

Learned President's Counsel for the 7th to 11th Respondents submitted that even in the event of the Court holding thatthere
had been discrimination, it should still refrain from appointingthePetitionertothepostinquestion.Itwashis
contention that in the matter of assessment of the suitability of candidates for a post, the Court should not substituteits
decision for that of the Board of Directors. He drew our attention to the fact that the new Board of Directors, appointedin
May, 1993, had refrained from taking a decision in regard to this matter as this application was pendingbeforeCourt.He,
therefore, urged that it be left open to the present Board to choose a suitable candidate,subjecttowhateverconditions
the Court may impose.
Although the Court has a wide discretion in terms of Article 126 (4) of the Constitution in granting relief andmakingsuch
directions as it may deem just and equitable, I do, in the circumstances of thiscase,refrainfrommakinganorderof
appointment. Instead, I make order and direct that steps be taken forthwith by the 1st and 6th to 11thRespondentstofill
theresultingvacancyinaccordancewiththe1st Respondent'spolicy aforementioned and in terms of its
promotion/recruitment procedure (P 7), and that the appointment of the International Relations Manager be madewithinthree
months of the date of this order.
I further direct that the application already made by the Petitioner be taken as an application for thesaidpost,subject
to any additional material he may submit, and be considered on its meritsandthattheopinions/viewsexpressedbyany
member of the former Board of Directors or by any official of the 1st Respondent including the Consultant inthecourseof
these proceedings concerning the Petitioner be totally disregarded.
Having regard to the wholly unwarranted discrimination and the needlessly offensive manner in which thefailuretoappoint
the Petitioner was sought to be justified, I award the Petitioner a sum of Rs.50,000/- as a solatiumfortheviolationof
his fundamental rights guaranteed by Article 12 (1) of the Constitution, payable by the 1st Respondent.
I further order that the 1st Respondent pay the Petitioner a sum of Rs. 5,000/- as costs.

AMERASINGHE, J. - I agree.

PERERA, J. - I agree.

Relief granted.





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