Legal Services and Laws of Sri Lanka

SLR-1995 Vol.2-P158

SLR - 1995 Vol.2, Page No - 158






JULY 03 AND JULY 10, 1995.

Constitution - Tea Control Department - Employee - PromotionDiscriminatoryandViolativeofArticle12(i)-Merit-

The Petitioner is the Administrative Officer,gradeVattachedtotheTeaSmallHoldingsDevelopmentAuthority.He
complained that the promotion of the 6th Respondent to a Senior Administrative Post was discriminatory and violativeofhis
Rights under Act, 12(1). The Petitioner obtained more marks for seniority, both had equal marks at the written test, the6th
Respondent obtained more marks than the petitioner at the interview.

The Petitioner did not allege mala fidesorpoliticalmotiveagainstthe6thRespondent'sappointment.Thereisno
intentional or purposeful discrimination which vitiates the impugned appointment.
AN APPLICATION for infringement of Article 12(1) of the Constitution.
Cases referred to:
1. Wijesinghe v Attorney-General FRD (1) at p. 40 at 45.

2. Gunatileke v. Attorney-General FRD (1) at 86.
3. Weligodapola v. Secretary, Ministry of Womens Affairs 1989 - 2 SLR 63 at 82-83.

A. H. H. Perera with Gamini Perera for the Petitioner.
Mohan Pieris, S.S.C., for respondents.
July 27, 1995.

The petitioner is an Administrative Officer Grade V attached to the Tea Small Holdings DevelopmentAuthority.Hecomplains
that the promotion of the 6th Respondent to a post of Senior Administrative Officer Grade IV at the Head Officewitheffect
from 17.01.95 was discriminatory and violative of his rights under Article 12(1) of the Constitution.
The petitioner claims that on the basis of merit andsenioritytheappointmentwhichisthesubjectmatterofthese
proceedings should have been given to him and not to the 6th respondent.

Both the petitioner and the 6th respondent joined the Tea Control Department as clerks on 10.03.70. Next they joined theTea
Small Holdings Development Authority on 20.03.78. In the course of their career in different grades of service, each ofthem
had gained seniority over the other alternatively, on assessment for appointment.
In the selection to the Senior Administrative Officer, Grade IV, the petitioner and the 6th respondent obtainedequalmarks
at the written testthe petitioner obtained more marks forseniorityforthereasonthathewasseniortothe6th
respondent in grade IVbut the respondent obtained more marks than the petitioner at theinterview.Thefinalscorewas
63.4 for the 6th respondent and 62.8 for the petitioner. In the result, the petitioner was not selected for appointment.

The petitioner complains that on a precise calculation of their seniority in Grade IV namely, 9 years and 10 112monthsfor
him and 8 years and 3 months for the 6th respondent, the petitioner should have been appointed. On that basis he claimsthat
he would have received 64.8 marks whilst the 6th respondent would have received only 62.508 marks.
The 6th respondent in his affidavit states that in the Tea Control Department he was promoted as Grade 11A clerkbeforethe
petitioner as the latter could not pass the promotion test. Hence, the 6th respondent became more senior atthatpoint.In
the Tea Small Holdings Development Authority the 6th respondent waspromotedasGrade1clerkon01.06.82whilstthe
petitioner was promoted only on 15.11.83 and thus the 6th respondent was 17 months senior to thepetitioner.However,when
they competed for appointment to the post of Administrative Officer the petitionerreceived10marksmorethanthe6th
respondent at the test. After interview, the petitioner was appointed, though the 6th respondent was more senior.

The 6th respondent states that the petitioner was the President of the Branch Union of the Jathika Sevaka Sangamaya (aunion
which enjoyed government patronage at that time). In proof of this, he has produced the document 6R2. The 6th respondenthas
also produced a letter dated 23.04.84 addressed by the Secretary, JSStothethenMinisterofPublicAdministration&
Plantation Industries, introducing the petitioner as a strong supporter of the government party.
The petitioner does not allege mala fides orpoliticalmotiveagainstthe6threspondent'sappointment.Thereisno
intentional or purposeful discrimination which vitiates the impugned appointment. SeeWijesinghev.Attorney-General(1),
Gunatilleke v. Attorney-General (2). See also Weligodapola v. Secretary Ministry of Women's Affairs (3) where AmerasingheJ.
"The State, as I have said before, is entitled to lay down conditions of efficiency andotherqualificationsforsecuring
the best service. And when it does so, this court will not, in my opinion, insist that the classificationisscientifically
perfect and logically complete".
These principles apply to the case before us. On the available evidence, the alleged infringementofrightsunderArticle
12(1) has not been established. This application is accordingly dismissed. The petitioner will pay Rs. 750/- as costs tothe
6th respondent.
G. P S. DE SILVA, J. - I agree.
Application dismissed.

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