Legal Services and Laws of Sri Lanka


SLR-1995 Vol.2-P324

SLR - 1995 Vol.2, Page No - 324

DHARMARATNE AND ANOTHER

v.

SRI LANKA EXPORT DEVELOPMENT BOARD AND 13 OTHERS

SUPREME COURT

FERNANDO, J.
WADUGODAPITIYA, J.
PERERA, J.

S.C. 115/94

SEPTEMBER 28, 1994.

Constitution - Art. 12 (1) of the Constitution - Promotion - Seniority - Experience - Additional qualifications -Weightage
to be given - Absence of due performance appraisal system.
The Petitioners are AsstDirectors of the 1st Respondent Board. They stated that vacanciesforpostsofDeputyDirector
Grade 2 were advertised, the appointments were to be made after an interview to beconductedbyanInterviewBoard.The
Petitioners applied, but were unsuccessful. It is alleged that the appointments of7-12thRespondentswerearbitraryand
without any rational basis for the following reasons:
1. There was no scheme of recruitment setting out criteria and guidelines for selection.
2. The criteria and basis of selection adopted by the Board of Interview were adhoc, therefore arbitrary and vague.
3. That there was inadequate weightage given to seniority.
4. That there was no mechanism to determine experience and managerial ability and no scheme for performance appraisal.
5. It was unreasonable to give too much weightage to the performance of the interview as it was subjective.

Held:
(i) The 1st criterion 'Seniority is easily ascertainable from the applicants record of service and is therefore clearly
objective.
(ii) The 2nd criterion 'additional qualifications' is likewise easily ascertainable and is therefore objective.
(iii) The 3rd criterion 'Experience' - it is clear that the experience of the applicants can in fact be ascertained and
assessed on the above basis, and is therefore objective.
(iv) The 4th criterion 'Performance' - the list is comprehensive and it cannot be said that the assessmentunderthishead
was in any way capricious.
(v) The 5th criterion 'communicating skills' - the abilities of the candidates on the above basis can readily be gauged,and
it cannot be said that the assessment under this head was in any way capricious.
(vi) Under the 6th criterion 'Managerial abilities' the Board of Interview exercised due responsibilityinarrivingatan
assessment under this head.
(vii) The interviews were conducted quite objectively, several criteria andbaseswereemployedandwheretherewasa
lacuna, a system of consultation was resorted to, the totality of the Evidence shows that the Board ofInterviewhadacted
responsibly.

Per Fernando J. ,
The weightage to be given to seniority and other criteria was a matter within the discretionoftheinterviewBoard.The
weightage for seniority must depend on the Nature of the postthe greater its responsiblitiesthemorethejustification
for giving greater weightage for factors, relevant to merit and ability and performance.
Further the weightage given to experience indirectly recognised seniority as well.

"While I agree that an annual performance appraisal system is very desirable for such assessment, it is notpresentlyofa
mandatory requirement - though it is possible that industrial relations and practice may make it mandatory in the future.

Per Wadugodapitiya, J.
There is no denying that the system as a whole was not as perfect as itoughttohavebeenbuttheshortcomingswhich
surfaced and which have been pointed out, constitute in my view blemishes at the most and are in nowayseriousenoughto
render the decisions of the Interview Board Nugatory.

Cases referred to:
1. Perera v Ranatunga- 1993 1 SLR 39.

2. Abeysinghe v CECB - SC 356/93 SCM 2.5.94.

3. Hewamallikage v. People's Bank-S.C. 291/93 SCM 14.10.94.

4. Perera v Monetary Board - S.C. 246/93 SCM 1.11.94.

5. Piyasena v. People's Bank- S.C. 359/93 SC M 4.11.94.

6. Wickremasinghe v. Loku Bandara - SC 59/93 - SCM 7.10.93.

7. Ariyasinghe v State Timber Corporation - S.C. 283/93 SCM 22.9.94.
APPLICATION under Article 126 of the Constitution.
Faisz Musthapha, P.C. with Mahanama de Silva for Petitioner.

A. S. M. Perera, D. S. G., for 1-6th and 14th Respondent.

R. K. W. Goonesekera, with L. C. M. Swarnadhipathy for 7-13 Respondents.
.
January 1, 1995

WADUGODAPITIYA J.
The petitioners are Assistant Directors of the Sri Lanka Export Development Board, (the1stRespondent).Theystatethat
vacancies for Posts of Deputy Director, Grade 2 in the 1st Respondent Board wereadvertisedinthenewspaperson1.3.93
(P2), and circularised by an internal memorandum dated 3.3.93 (P3). These postswereopentobothinternalaswellas
external candidates. The appointments were to be made after an interview to be conducted byaBoardconstitutedforthat
purpose, (2nd to 6th Respondents). The 2nd Respondent was the Chairman whilst the 5th and 6th Respondents wereDirectorsof
the 1st Respondent Board.

The qualifications and experience called for were clearly set out, viza Degree of arecognisedUniversityorequivalent
professional qualification, with preference to holders of a First orSecondClassDegreeorPost-Graduatequalification
relevant to the job description. In addition, post-qualifying experience of not less than 8 years in the relevantfieldwas
called for, of which at least 3 years should have been at Senior ManagementLevelinarecognisedPublic/PrivateSector
Institution or an International Institute/Agency.

Both Petitioners applied. Copies of their applications are at P4 and P5respectively.Thereafterthe1stpetitionerwas
summoned for an interview on 31.1.94 and the 2nd petitioner, on 28.1.94 before the Board of Interview which consisted ofthe
2nd to 6th Respondents. The petitioners state that in all, 18 internal candidates were summoned for interviewsondifferent
dates.
On 10.3.94, however, the petitioners came to know that on 9.3.94, letters of appointment had been issued to the 7thto13th
Respondents appointing them to the posts of Deputy Director, Grade 2 in the 1st Respondent Board. Of these, the 7thto12th
Respondents were internal candidateswhowerepromoted,whilstthe13thRespondentwasanexternalcandidate.The
Petitioners have no quarrel with the appointment of the 13th Respondent, but state that the promotionsandappointmentsof
the 7th to 12th Respondents were arbitrary and without any rational basis, for the following reasons:
(a) the selection of the 7th to 12th Respondents wasnotinaccordancewiththeschemeofpromotion(P1)becausethe
performance and skills of the internal applicants were not taken into account. The only way in whichthiscouldhavebeen
done was to consult the Directors in charge of the Divisions to which the candidates belonged, and this was not done
(b) the seniority of the Respondents was not taken into consideration. They state thatthe8thto12thRespondentswere
junior in service to the 1st petitioner in their appointment to the post of Assistant Director (Gr: 3),andthatregarding
the same post, the 9th to 12th Respondents were junior in service to the 2nd Petitioner. The 7thRespondenthoweverisof
equal seniority with the 1st petitioner and more senior to the 2nd petitioner in the said post. They have filed marked P6,a
list of all the 18 internal candidates who applied and who were interviewed, setting outtheireducationalqualifications,
dates of appointment to the post of Assistant Director, Grade 3, and the dates on which they first joined the 1stRespondent
Board, and
(c) the 2nd to 6th Respondents had acted under political pressure and that there were no specific criteria adopted inmaking
the selections.
The petitioners state that they have been subjected to unequal treatment by the 1st to 6th Respondents inviolationofthe
provisions of Article 12(1) of the Constitution. They ask further, that the appointments of the 7th to12thRespondentsbe
quashed and that they be awarded damages in a sum of Rs. 100,000/- each.

The 7th to 12th Respondents, i.e. the internal candidates whose promotions are beingchallengedbythepetitioners,have
filed counter-affidavits stating, inter alia :
(i) that the scheme of promotion introduced in 1985 and which is the scheme relied onbythetwopetitionersisnotin
operation, and that what is operative at present is the Scheme of Promotion set out inPublicAdministrationCircularNo.
15/90
(ii) that the evaluation process introduced in 1984, and which is relied on by the two petitioners has beendoneawaywith
and that, at present, there is no provision for theevaluationoftheperformanceofexecutiveofficersunderPublic
Administration Circular No: 15/90
(iii) that seniority is not the only criterion for promotion and that, in addition, merit is also taken into consideration
in making promotions, and
(iv) that the interviews were not a mere formality but were aimed at assessing the ability,capabilityandsuitabilityof
the candidates for Senior Management posts, having regard to the objectives of the organisation.

The 2nd Respondent, who is the Chairman of the 1st Respondent Board, and who also functioned as theHeadoftheBoardof
Interview, has filed his objections by way of an affidavit countering the several averments made by the petitioners.
He states that the posts of Deputy Director are senior managerial positions and that itisintheinterestsofthe1st
Respondent Board to recruit persons who are most suited, having regard totheobjectivesoftheorganisation thatthe
Deputy Directors function as unit heads of the several divisions and are required to possesshighmanagerialabilitiesto
manage the units, co-ordinate and liaise with the Director and the top management and also with the subordinatestaff that
they are responsible for the implementation of the action plans of the several divisions, and that it is thereforeessential
that they possess abilities to motivate and manage the performance of the subordinate staff.

The 2nd Respondent goes on to state that after calling for applications,(besidestheexternalcandidates),17internal
candidates (not 18 as set out by the petitioners) were interviewed by the Board of Interview (2nd to 6thRespondents) that
at the interviews, the candidates were questioned on various relevant matters,includingtheiracademicandprofessional
background, contributions made by them to the organisation, their past and present duties and strategies fordevelopmentof
small and medium industries for exportsthat at the interview, due consideration was given to seniority (one markforeach
year's service in Grade 3), job-oriented additional qualifications (4/5 marks for a Diploma, 6 marks fortheM.Sc./M.B.A.
and 10 marks for a Ph.D.)experience(inexportdevelopment,marketing,projectappraisal,entrepreneurdevelopment,
planning and familiarity with trade information)performance (i.e., ability to identify andanalyseproblemsandpropose
practical and constructive solutions)communicating skills (i.e., correct usage of language, clarity of speech andcohesion
and presentation of ideas and information), and managerial abilities (on the basis of their day to day performance).Hehas
filed marked 2R5, a copy of an unsigned and undated mark-sheet, setting out the marks given to the variouscandidatesunder
the above heads, in terms of which the total marks obtained by the relevant candidates are as follows:-7thRespondent-
44, 8th Respondent - 40, 9th Respondent - 37, 10th Respondent - 41, 11th Respondent - 38, and 12th Respondent -40,Contra,
the 1st Petitioner has scored only 34 marks and the 2nd Petitioner, 33.

The 2nd Respondent states that prior to the holding of the interviews, schedules setting out the relevant data pertainingto
the several applicants were made available to the members of the Board of Interviewthat during the interviews, eachmember
made his own notes on the said schedulesthat immediately after the conclusion of each interview,markswereassignedto
each candidate collectively by the members of the Board of Interview after consideration oftheperformanceofeachsuch
candidate, and that those who fared best and obtained the highest marks were selected for the posts of Deputy Director.
The 2nd Respondent also states that, contrary to whatthepetitionersallege,beforedecisionsweretakenastothe
candidates to be promoted, the Directors in charge of the relevant Divisions in which theseveralcandidatesworked,were
consulted. Further, in this connection, he adds that the "Performance Evaluation Scheme" (for Executive Officers)whichhad
been adopted earlier was done away with for the reason that it did not bring about the desired objectiveandwastherefore
no longer in operation.
Although the Petitioners rely on P1 anditsannexturesasconstitutingtheapplicableSchemeofPromotion,the2nd
Respondent denies this and states that the document P1 produced by the Petitioners is only aproposalwhichhasnotbeen
approved by the Board, and as such, cannot be treated as part of the approved scheme of promotion.Hefurtherstatesthat
the applicable scheme of Promotion is contained in the documents filed by him, viz: 2R2 and 2R2A to 2R2E, culminating inthe
undated document 2R3, by which latter document, hesays,the"PromotionSchemeforthePostofDeputyDirectorwas
finalised". This document, 2R3, merely sets out the Grade allocatedtothePostofDeputyDirector,thesalaryscale
applicable to it and the qualifications called for, viz: "A degree of a recognised University or anequivalentprofessional
qualification with two years service in the E.D.B. as an Assistant Director and has been confirmed in the Post".

From the foregoing, it would be seen that the 2nd Respondent has countered the several allegations made bythepetitioners,
with the following points:
(a) that the Scheme of Promotion was not contained in P1 as stated by the Petitioners, but in thedocumentsculminatingin
2133
(b) that the seniority of all the internal candidates was in fact taken into consideration and marks giventhereforatthe
rate of one mark for each year's service in Grade 3 (2135)
(c) that in addition to Seniority, the merit worthiness of the candidates,inordertoassesstheirperformance,their
skills, their ability and suitability for senior managerial positions, was taken into account undertheseveralheadsset
out in 2135vizAdditional Qualifications, Experience, Performance, Communicating Skills and Managerial Ability
(d) that the Directors in charge of the Divisions to which the several candidates belongedwereinfactconsultedbefore
decisions for selection were taken
(e) that prior to the holding of the interviews, schedules containing alltherelevantdatespertainingtotheseveral
candidates were made available to the members of the Board of Interview, and that each membermadehisownnotesthereon
during the interviews
(f) that the "Performance Evaluation Scheme" for Executive Officers whichhadbeenadoptedearlierwasdoneawaywith
because it did not bring about the desired objective, and was therefore no longer in operation
(g) that there was no truth in the unspecified andunsubstantiatedallegationmadebythepetitioners,ofpolitical
interference, and
(h) that the appointments of the 7th to 12th Respondents have been made on a rational basisusingtheabovecriteriaand
that petition of the petitioners does not disclose a violation of their fundamental rights.
At the hearing, Learned President's Counsel for the Petitioners was heard in support, but we did not thinkitnecessaryto
call upon either Learned Counsel for the 1stto6thand14thRespondents,orLearnedCounselforthe7thto13th
Respondents, in reply. However, the affidavits filed by all the Respondents, together with theirdocumentswereconsidered
by us.

At the outset, Learned President's Counsel for the Petitioners stated that he was not seeking to canvass theappointmentof
the 13th Respondent, who was the external candidate, and that he was confining himself to the 7th to 12thRespondentsonly.
He sought mainly to rely on the following matters in support :
(i) that there was no scheme of recruitmentsettingoutcriteriaandguidelinesforselection.The2ndRespondent's
document, 2113 did not do so, and was, in any event, undated and not in existence on 1.3.93whenapplicationswerecalled
for by P2, (the newspaper advertisement). Even P2 did not set out any scheme of recruitment orcriteriaorguidelinesfor
selection. Even the holding of an interview was not mentioned in P2
(ii) that the criteria and basis of selection adopted by the Board of Interview were ad hoc and therefore arbitrary and
vague
(iii) that there was inadequate weightage given to seniority. One mark for each year's service in Grade 3 was not enoughand
at least a third of the total of marks out of a hundred should have been given for seniority
(iv) that there was no mechanism to determine experience and managerial ability and no scheme for performance appraisal,and
that this category should also command at least a third of the total of the marks out of a hundred, and
(v) that although the Board of Interview, constituted as it was, of a Mix of insiders (2R, 5R and 6R) and outsiders(3Rand
4R) was not unreasonable, it was unreasonable to give too much weightage to theperformanceattheinterviewasitwas
subjective, and that therefore, not more that 10% of the marksshouldhavebeenallocatedforboththeinterviewand
"Communicating Skills" and not more than 10% for "Additional Qualifications".
One of the main questions that would arise for consideration in this case is, whether the actions of the BoardofInterview
were so arbitrary as to compel their having to be struck down. The other questionis,whetherthesubmissionofLearned
President's Counsel for the Petitioners, that the entire interview process was subjective and therefore bad for beingwholly
unreasonable, is worthy of merit.

In considering these questions, it would be pertinent to note that the Board of Interview consisted of three membersofthe
1st Respondent Board, vizthe 2nd Respondent who was Chairman since1989 the5thRespondentwhohasbeenAdditional
Director-General since 1987, and before that, the Director of Marketing since 1979, and the 6th Respondent who hasbeenthe
Director of Human Resources Development for a little under two years. It would seem that, at the lowest, thesepersonswere
no strangers to the officers of the 1st Respondent Board at the level of Assistant Director, Grade 3, fromwhichgradethe
applicants for the post in question were drawn. Further, it is of some importance tore-iteratethatschedulescontaining
all the relevant personal data concerning the applicants were made availabletoeachmemberoftheBoardofInterview
beforehand, so that during the conduct of the Interviews, all the members had the necessary material beforethem,andeach
made his own notes on his copy of the schedule during the interviews.
In considering the question of subjectivity raised by Learned President's Counsel, the picture would be seen with clarityif
each of the criteria or bases for selection employed by the Board of Interview were to be looked atseparately.Takingthe
criteria in the order set out in the mark-sheet, 2195, it is quite apparent :

(i) that the first criterion "Seniority", is easily ascertainable from the applicant's record of service,andistherefore
clearly objective. The applicants were given one mark for each year's service in the Grade 3 post of Assistant Director
(ii) that the second criterion "Additional Qualifications" is likewise easily ascertainable and is thereforeobjective.The
holder of a Diploma was given 4 to 5 marksthose in possession of an M.Sc. or M.B.A. Degree were given 6marks,andthose
in possession of a Ph.D. were awarded 10 marksprovided the above qualifications were "Job - oriented"
(iii) that where the third criterion, "Experience"wasconcerned,marksweregivenonthebasisofthecandidate's
experience relating to export development, marketing, project appraisal, entrepreneur-development, planningandfamiliarity
with trade information. It is clear that the experience of the applicants can in fact beascertainedandassessedonthe
above bases and is therefore objective
(iv) that where the fourth criterion, "Performance" was concerned, thefollowingweretakenintoaccountinallocating
marks, vizability to identify problems, ability to comprehend the subject, abilitytoanalysethetopiccorrectlyand
meaningfully and to relate the results to their actual performanceinthe1stRespondentBoardwithcurrentdataand
statistics, and the ability to propose constructive and practical solutions. The list is comprehensive and it cannot besaid
that the assessment under this head was in any way capricious, and
(v) that where the fifth criterion, "Communicating Skills" was concerned, clarityinspeech,correctusageoflanguage,
cohesion and presentation of ideas and information were taken into account in awarding marks tocandidates.Thiscriterion
too cannot be said to be capricious.
The abilities of the candidates on the above cases can readily be gauged and it cannot besaidthattheassessmentunder
this head was in any way caprcious.

In the result, one is left only with the sixth and final criterion, vizthe "Managerial Abilities" of the candidates onthe
basis of their day to day work and performance. In this connection, the2ndRespondentinhisaffidavitsaysthatthe
Performance Evaluation Scheme which was in operation earlier was done away with for the reason that it didnotbringabout
the desired objective. However, in its place, a system of consultation with the Heads of the relevant Divisions to whichthe
several applicants were attached had been introducedfor the 2nd Respondentadds:"IstatethattheDirectorsofthe
relevant divisions in which the applicants worked were consulted before decisions were taken on who shouldbepromoted".I
see no reason as to why the 2nd Respondent should not be believed on this point. This item of evidence shows thattheBoard
of Interview exercised due responsibility in arriving at an assessmentunderthishead.Attheverylowest,farfrom
pointing towards capriciousness and arbitratiness, it distinctly points away from it.
I am therefore of the view that the conduct of the Board of Interview in selecting the 7th to 12th Respondents can in noway
be said to have been so arbitrary or capricious as to induce me to strike down and nullify the appointments made. Further,I
am of the opinion that, for the greater part, the interviews were conducted quite objectively.Assetoutabove,several
criteria and bases were employed, and where there was a lacuna, a system of consultationwasresortedto,and,farfrom
acting arbitrarily or capriciously,thetotalityoftheevidenceshowsthattheBoardofInterview,had,inthe
circumstances, acted responsibly.
There is no denying that the system as a whole was not as perfect as it ought to have been. But, the shortcomings which
surfaced and which have been pointed out, constitute, in my view, blemishes at the most, and are in no way serious enough to
render the decisions of the Board of Interview nugatory.
Thereforetaking all the circumstances of this case into consideration, I am of the view that there hasbeennoviolation
by the 1st to the 6th Respondents of the fundamental rights of the petitioners under Article 12(1) of theConstitution,and
I hold accordingly.
The application is therefore dismissed.

PERERA, J. - I agree.
Application dismissed.
FERNANDO, J.
While agreeing with my brother Wadugodapitiya, J, that the Petitioners' application fails, I wish to add the following
observations:
It is certainly desirable that the criteria for selection, and the weightage for each criterion,shouldbelaiddownand
disclosed to candidates before any interview or other selection processbut the failure to dosois,ingeneral,nota
fatal flaw (cf. Perera v Ranatunge (1), Abeysinghe v. C.E.C.B. (2) . There are, however,exceptions(cf.Hewamallikagev.
People's Bank (3), Perera v. Monetary Board (4), and Piyasena v. People's Bank (5), but this is not one of them.

In the absence of an established scheme of promotion, the interview board was quite justifiedinformulatingtherelevant
criteria and weightage. The criteriasodetermined,namelyseniority,relevantadditionalqualifications,experience,
performance, communication skills, and managerial ability, were all relevantand there wasnosuggestionthatanyother
relevant criterion had been omitted or that the scheme was irrational (cf. Perera v. Ranatunge (Supra) andWickramasinghev
Loku Bandara (6).
Learned Counsel for the Petitioners attacked the scheme itself, as well as its implementation, on several grounds.

He submitted that the criteria wereadhoc,subjective,vagueandarbitrary thatsenioritywasgiveninsufficient
weightage, and should have been given at least one third of the total marksand that interviewperformancewasgiventoo
much weightage.
Of the six criteria, thefirstandthesecondwerewhollyobjective.Theotherfourinvolvedvaryingdegreesof
subjectivity, but these criteria were very relevant for senior management posts. Further, the assessmentofcandidatesfor
such posts involved also an element of judgment, based on past performance, as to how well a candidate was likely toperform
if promoted. Subjectivity was thus inevitable. The criteria were clear, andtheinterviewboardhadformulatedadequate
guidelines in regard to the criteria. Thus none of thegroundsofchallengehavebeenestablished.Inregardtothe
implementation of the scheme, in the absence of material establishing any lack of competence or good faithonthepartof
members of the interview board, or abuse or misuse of discretion, or arbitrariness, or the like, subjectivity alonewasnot
a vitiating factor.

The weightage to be given, to seniority and other criteria, was a matter within the discretion of the interview board.While
it has been submitted that the correct weightage had not been given to some criteria, it cannot be saidthattheinterview
board exercised its discretion arbitrarily or unreasonably (unlikeinPererav.Ranatunge(supra)).Theweightagefor
seniority must depend on the nature of the post: the greater its responsibilities, the, morethejustificationforgiving
greater weightage for factors relevant to merit and ability, and performance. Further, the weightagegivento"experience"
indirectly recognised seniority as well (Ariyasinghe v. State Timber Corporation (7).) The assessment of suitability forthe
post was made at the interview. Although there could be different opinions as to the appropriate number of marks to begiven
to each candidate for performance at the interview, here is nothingtosuggestthattheinterviewboardexercisedits
discretion unreasonably or arbitrarily in this respect.
It was strenuously contended that in the absence of an established (i.e. annual) performance appraisalsystem,therecould
not be a proper assessment of performance, experience, and managerial ability. While I agreethatsuchasystemisvery
desirable for such assessment (and indeed, for the efficient and harmonious running of any institution,fromthepointof
view of both employer and employee), it is not presently a mandatory requirement - thoughitispossiblethatindustrial
relations law and practice may make it mandatory in the future. The absence of such a system did notvitiatetheselection
process: performance, experience and ability had to be assessed, the interview board found itself in a positionwherethere
was no annual performance appraisal system, and naturally they had to do the best they could inthecircumstances.Ifthe
Petitioners' contention is upheld, it would mean that the promotions should have been madewithoutanyattempttoassess
these factors clearly an untenable and unsatisfactory position.
Application dismissed.


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