Legal Services and Laws of Sri Lanka

SLR-2002 Vol.2-P287

SLR - 2002 Vol.2, Page No - 287








CA NO. 736/2000

CA NO. 907/2000

JUNE 27, 2001

FEBRUARY 21, 2002
Writ of Mandamus - Public Service Commission - Promotion of Police Officers - Selection process - Performance of publicduty
- Public authorities - Constitution Articles 55 (1) and 140 - Pleasure principle-Applicability-Courtscompetenceto
issue a Writ of Mandamus compelling the appointment of a person to a particular post or office.

The petitioners seek writs of Mandamus directing the PSC, to promote the petitioners to the rank of ASP andalsotodirect
the IGP and Secretary Defence to give effect to such appointments.

Held :
(1) The PSC is a body established by the Constitution. In making appointments to the rank of ASP the PSCisunderalegal
duty to make such appointments on the basis of selections made in accordance with the laid down selection process.Whenthe
PSC makes appointments to the rank of ASP it is under a duty to make such appointments on a basis which is reasonable.
(2) Within the field of Public Law, the scope of Madamus is still wide and the Court may use it freely to preventbreachof
duty and injustice.
Per Amaratunga, J.

The absence of precedent does not deter me when I am convinced that the only effective remedy to remedy the injusticecaused
to the petitioners is an order of Mandamus."
APPLICATION for Writs of Mandamus.
Cases referred to :

1. Migultenne v. Attorney-General - (1996) 1 Sri LR 408.

2. Jayawardena v. Dharani Wijetilake and Others - (2001) 1 Sri LR 132 at 159.

3. R. v. Hanley Revising Barrister - (1912) 3 KB 518 at 529.

4. Chief Constable of North Wales Police v. Evans - (1982) 2 All ER 141.
Faiz Musthapha, PC with Abdul Najeem for the petitioners in both applications.

Y. J. W. Wijetilake, DSG for the respondents in both applications.
Cur. adv. vult.
April 30, 2002

These two applications are applications for Mandates in the nature ofWritsofMandamusdirectingtheChairman,Public
Service Commission and six other members of the Commission (9th to 10th respondents) to promote the petitioners totherank
of Assistant Superintendent of Police and also to direct the Inspector-General of Police (1st respondent) andtheSecretary
to the Ministry of Defence (2nd respondent) to give effect to such appointments. Since both applications relate tothesame
matter and since respondents to both applications are the same, both applications were consolidated andheardtogetherand
parties agreed to abide by one judgment pronounced in respect of both cases.

These two applications were heard by me and His Lordships Justice J. A. N. de Silva before his Lordship'selevationtothe
Supreme Court and the parties thereafter agreed that this matter could be decided by mesittingaloneonthesubmissions
already made.
Petitioners No. 4, 5, 6, 10 and 11 in application No. 736/2000 are holders of the rank of Chief Inspectors of Policeinthe
Police Department. Others hold the rank of Inspectors of Police. The petitioner in application No. 907/2000 isanInspector
of Police.
The scheme of recruitment and promotions of Senior Gazetted Officers of the Department has been approved bytheCabinetof
Ministers on 05. 08. 1998. (P1) In terms of this scheme appointments to the post of Assistant SuperintendentofPoliceare
made in three ways. What is relevant to the present petitioners is the 2nd category according to which "25% of thevacancies
will be filled on the results of a limited competitive examination from among Chief Inspectors of PoliceandInspectorsof
Police with 10 years' service".

Upon the directions of the Public Service Commission, the Inspector-General of Police bycirculardated03.09.1998(P2)
invited applications from Chief Inspectors andInspectorswhowereeligibleforpromotiontotherankofAssistant
Superintendent of Police (ASP) through a limitedcompetitiveexamination.Thepetitionerswhopossessedtherequisite
qualifications applied and sat for the limited competitive examination conducted by the3rdrespondent,theCommissioner-
General of Examinations. The examination was conducted in respect of the following subjects :

1. Language Ability (essay and precis) 150 marks
2. General Knowledge and Intelligence150 "
3. Social, Political and Economic Development of Sri Lanka 100 "
4. Practical Police Methods100 "
5. Police Administration 100 "
According to the scheme of recruitment and promotion, the prospective candidates had to face an interview in addition tothe
written examination. For the written examination 75% of the marks were allocated and the balance 25% fortheinterview.To
quality for the interview a candidate had to get a minimum of 40% marks at the written examination.
Thereafter, in March, 1999, 72 candidatesincludingthepetitionerswerecalledforinterviews.Theresultsofthe
examination and the interview were given in the marks sheet produced by the petitionersmarkedP5.On25.06.1999the
Public Service Commission (PSC) has ordered the appointments of the first 14 candidates whose names and marksappearinP5
to the rank of ASP. Then the 3rd, 5th, 6th, 10th and 11th petitioners in CA Application No. 736/2000 andthepetitionerin
application No. 907/2000 made application Nos. 607/99 and No. 608/99 to the Supreme Court for alleged infringementoftheir
fundamental rights. Those applications were consolidated and heard togetherbytheSupremeCourt.Itappearsthatthe
complaint of those who filed applications in the Supreme Court was that 32 persons who had scored less than 40% of themarks
at the limited competitive examination had been called for the interview and the appointments of 14th to 24th respondentsto
the Supreme Court applications (11 officers among the first 14 candidates promoted to the rank of ASP) hasresultedinthe
infringement of their fundamental rights.

The first two papers of the limited competitive examination were to be givenmarksoutof150andothersoutof100.
However, it appeared from the affidavit filed by the Commissioner-General of Examinations, whowasthe3rdrespondentto
those applications, thatalthough the aforesaid two papers were marked out of150thesaidmarkswereconvertedtoa
percentage in accordance with the prevailing practice in the Department ofExaminationsandthatthepracticehadbeen
adopted in respect of all candidates and accordingly none of the candidates who had secured less than 40% ofthemarkshad
been called for the interview. Therefore, the Supreme Court held that :
"The practice adopted by Commissioner of Examinations to convert the marks obtained by the candidatesoutof150forthe
first two subjects to percentage to ensure uniformity has not caused so any prejudice to any of the candidates and cannotbe
faulted as
that was the practice that prevailed in the Department of Examinations", (emphasis added).
The petitioners heavily relied on the above finding of the Supreme Court thatthepracticeadoptedbytheCommissioner-
General of Examinations to convert marks obtained out of 150 to percentage to ensure uniformity has not caused anyprejudice
to any of the candidates. For this reason and for the other reasons (which are not relevant to the present purpose)setout
in the judgment, the Supreme Court dismissed the fundamental rights applications on 12. 01. 2000 (SCMinutesof12.01.

The petitioners have stated in their applications that whilstthefundamentalrightsapplicationswerependinginthe
Supreme Court, another officer who sat for the same examination and faced the interview for promotiontotherankofASP
filed application in the Court of Appeal (CA Application No. 1164/99) seeking mandates in the nature of WritsofCertiorari
and Mandamus on the basis that the said practice of pro-rating of marks was arbitrary and in excess of the powers of the3rd
respondent Commissioner-General of Examinations. The Officer who filed ApplicationNo.1164/99,H.K.D.W.M.P.B.
Ratnatilake who has obtained a total of 320.6 marks was placed in the 20th position in the marks list marked P5.Whilstthe
Writ application of Ratnatileke was pending in the Court of Appeal the PSC by its letterdated25.04.2000orderedthe
appointment of three other candidates to the rank of ASP. The particulars relevant to them,astheyappearinthemarks
sheet P5 are as follows :
Serial No. Name Total Marks
20 H. K. D. W. M. P. B. Ratnatilake 320.6
29 B. D. Chandrasiri315.8
39 N. Moses 310.2
The petitioners in Application No. 736/2000 in the order their names appear in the caption of theapplicationhavesecured
the following places in the marks sheet P5 in order of merit.
Name Serial No. Total Marks
Karavita 15 328
Jamaldeen16 324.4
Ranaweera17 323
Lal Kumara 18 321.8
Baddewela19 321.2
Samarasekara 22 319
Karunanayake 25 317.2
Palitha Fernando 26 316.8
Mahagedara 31 315.6
Dayananda34 314.2
Ellepola 36 312.8
Gajasinghe 37 310.8

This shows that Rantatileke was below the first five petitioners. Chandrasiri was below the firsteightpetitioners.Moses
was below all 12 petitioners. Petitioner in Application No. 907/2000 Welikanna who is in the 24thpositionhavingobtained
317.4 marks is above Chandrasiri and Moses The promotions of Rantnatileka, Chandrasiri and Moses were given on 25. 04.2000,
three months after the Supreme Court delivered its judgment in the fundamental rights case.

It appears from what has been set out above that Ratnatiieke and Chandrasiri have been promoted over some of thepetitioners
who have scored more marks than them and Moses has been promoted above all petitioners in application Nos. 736and907who
have scored higher marks than him.

The 4th respondent, the Chairman of the PSC, by his affidavit seeks to explain the basis on which Ratnatiiekewaspromoted.
The 4th
respondent in paragraph 6 of this affidavit has stated that "I state that the findingoftheSupremeCourtinthesaid
applications (SC Nos. 607/99 and 608/99) was that the petitioners in the said application hasnotbeenprejudicedbythe
practice followed by the Department of Examinations". This averment does not correctly set out thefindingoftheSupreme
Court, this is what the Supreme court has held.

"In my view this practice adopted by the Commissioner of Examinations to convert the marks obtained by the candidates outof
150 for the first two subjects to a percentage to ensure uniformity has not caused prejudice to anyofthecandidatesand
cannot be faulted as that was the practice that had prevailed intheDepartmentofExaminations."(perGunasekara,J.)
(emphasis added).

The above passage form the judgment of the Supreme Court clearly showsthatthefindingoftheSupremeCourtwasnot
confined to the petitioners of the applications that were before the Supreme Court. The findingoftheSupremeCourtwas
that the conversion of the marks has not caused prejudice to any of the candidates. This includes the petitioners as wellas
those candidates who sat for the same limited competitive examination. The Chairman and the membersofthePublicService
Commission were respondents to the aforesaid fundamental rights applications and the PSC as a body is bound by the rulingof
the Supreme Court and as such they cannot in law act on the basis that notwithstanding the definite findingoftheSupreme
Court they are free to review cases of individual candidates and decide for themselves whetheraparticularcandidatehas
been prejudiced by the conversion. It appears from the rest of the averments of the4threspondent'saffidavitthatthis
exactly was what the PSC ssshas done.

The 4th respondent in paragraph 8 of his affidavit admits that the order to promote 14 officers to the rank of ASP wasgiven
according to the marks sheet prepared by the Commissioner-General of
Examinations marked P5. It was presented to the Supreme Court as the correct marks sheet and the Supreme Courthavingtaken
into consideration the affidavit of the Commissioner-General of Examinations held that by the conversion setoutinitno
candidate has been prejudiced. The 4th respondent's affidavit goes on to say that the said marks sheet P5 was altered bythe
amended marks sheet 'referred by the Commissioner-General of Examinations'. The amended marks sheet has been producedmarked
4R1. It is dated 16. 02. 2000, which date is subsequent to the judgment oftheSupremeCourtinthefundamentalrights
cases. Several questions arise in view of the aforesaid averment. What was the necessity to amend themarkssheettendered
to the Supreme Court? Were there mistakes in P5 and if so what were those mistakes andhowdidsuchmistakesoccur?Who
detected those mistakes and who requested or authorized the preparation of an amended marks sheet? I cannot findanswersto
any of the above questions in the affidavit of the 4th respondent. The Commissioner-General of Examinations isarespondent
to these applications but he has not filed an affidavit setting out the reasons for and the basis on whichhepreparedthe
amended marks sheet R41. In the absense of any explanation from the Commissioner-General ofExaminations,Chairmanofthe
Public Service Commission or from the Inspector-General of Police the reason for the preparation of the amendedmarkssheet
remains a mystery as far as this Court and these applications are concerned.
It appears from P8 submitted by petitioner Samarasekara with hiscounteraffidavitthatthepromotionsofRatantileke,
Chandrasiri and Moses were ordered on the basis of the amended marks sheet marked 4R1. Ratnatileke who was No. 20 inP5has
become No. 14 in amended marks sheet. Chandrasiri who was No. 29 in P5 has become No. 16 in the amended list. Moseswhowas
No. 39 in P5 has become No. 15 in the amended marks sheet. With their positions their total number of marks has alsochanged
upwards. No one has explained to this Court how and on what basis those changes have been made. It is also to benotedthat
the first 14 officers promoted
in June, 1999, on the basis of their positions in the original marks sheetP5remaineveninP41withinthefirst17
officers promoted to the rank of ASP.
However, the positions of most of the petitioners have substantially changed in the amended marks sheet. The followingtable
shows how their positions were changed :
Name Position under P5Position under 4R1
1.Karavita15 25
2.Jamaldeen 16 31
3.Ranaweera 17 27
4.Lal Kumar 18 28
5.Baddewela 19 32
6.Samarasekara22 18
7.Karunanayake25 20
8. Palitha Fernando 26 29
9.Mahagedara31 19
10.Dayananda34 48
11.Ellepola 36 47
12.Gajasinghe 37 35
13.Welikanna24 23

This table shows that except 6th, 7th, 9th and 12th petitioners and the petitioner in No. 907/2000 theotherswerereduced
to positions lower than the positions they had under the original marks sheet P5.The respondentshavenotexplainedthe
basis on which those changes have been made.

The 4th respondent in his affidavit (paragraph 9) has stated that consequent tothefilingoftheWritapplicationNo.
1164/99 it was evident that prejudice has been caused to the petitioner resulting in the steps takenassuggestedbythis
Court to afford administrative relief. However, the 4th respondent has not stated in what way
prejudice has been caused to the petitioner in CA Application No. 1164/99. In paragraph 10 of the 4th respondent'saffidavit
it is stated that the practice adopted by the Examinations Departmentonwhichthepetitionersrelyforpromotionwas
incorrect and cannot be legally or fairly given effect to. I cannot see how the 4th respondent can say this when theSupreme
Court has accepted that practice as the prevailing practice followed by the Department of Examinations. Themembersofthe
Public Service Commission who were respondents to the Supreme Court applications are bound as a body bytherulingofthe
Supreme Court and if they act contrary to the finding of the Supreme Court such act is an arbitraryactwithoutanylegal
basis. The 4th respondent has also failed to explain the reason why the PSCorderedtheappointmentsofChandrasiriand
Moses to the supernumerary cadre.

The respondents have failed to establish the validity of the amended marks sheet 4R1 asagainsttheoriginalmarkssheet
accepted by the Supreme Court as correct marks sheet (and also by the PSC by appointing 14 ASPP on the basis ofP5)andas
such the respondent members of the PSC are under a duty to order promotions on the basis of the results reflected inP5.By
promoting a person who has obtained less marks than all petitioners in these two applications theyhavefailedtoperform
their duty according to law and have failed to adhere to the results reflected in P5.

In the written submissions filed on behalf of the respondents a question has been raised as to whether publicservantshave
a right to receive promotions. The petitioners responded to a circular issued by the 1st respondent calling forapplications
from eligible officers to be promoted to the rank of ASP in accordance with the approved scheme. They obtained thenecessary
marks at the written examination to qualify for the interview. They faced the interview and obtained marks whichweretaken
into account in deciding the total marks to be awarded to them.Afterthecompletionoftheselectionprocessifthe
authorities decided not to promote anyone, the petitioners or
others whose names are set out in the marks sheet P5 did not ordinarily have a right to demand that they should be promoted.
However, in this case on the results of the selection process 14 officers were promotedtotherankofASP.Thereafter,
another person who has obtained less marks than all 13 petitioners was promoted on the basis of an amendedmarkssheetthe
validity of which the respondents have failed to prove. With this appointment, the petitioners whohavehighermarksthan
the last appointee acquired a right to be promoted on the same results on which 14 others promoted earlier.

The respondents cannot also invoke the pleasure principle embodied in Article 55 (1) of the Constitution as an answer tothe
petitioners' plea for a Writ of Mandamus. As was pointed out by his Lordship Justice Fernando in Migultenne v. TheAttorney-
Generalm the pleasure principle does not give an absolute discretion to the executive. It is subject to the otherprovisions
of the Constitution such as the fundamental rights and the Writ jurisdiction of the Court of Appeal under Article 140 ofthe
Constitution. It cannot be used to shield an act which has no basis in - law or in fact.

Now, I turn to the relief sought by the petitioners. TheyhavesoughtaWritofMandamusdirectingthe4thto10th
respondents to promoteand appoint them to the rank of ASPinthePoliceDepartmentandtodirectthe1stand2nd
respondents to give effect to such appointments.

The first question to be decided to whether this Court has the power in law to issue Writ of Mandamus compelling thePSCto
appoint or promote a particular person to a particular office or post. The Writ of Mandamus is the normal means ofenforcing
the performance of public duties by public authorities. "It is normally granted on the applicationofaprivatelitigant"
and "the commonest employment of Mandamus is as a weapon in the hands of the ordinary citizen, when a public authorityfails
to do its duty by him." Wade, AdministrativeLaw, 8th edition, p 604. Is there a failure by a public authority doitsduty
by the petitioners?
Public Service Commission is a body established by the Constitution. In terms ofArticle55(3)oftheConstitutionit
exercises powers of appointment, transfer, dismissal and disciplinary control of publicservantsdelegatedtoitbythe
Cabinet of Ministers. The schemes of recruitment and promotions of senior Gazetted officers ofthePoliceDepartmenthave
been approved by the Cabinet. Under this scheme there is a selection process to select officers for appointments to therank
of ASP, in the Police Department. In making appointments to the rank of ASP the PSC isunderalegaldutytomakesuch
appointments on the basis of selections made in accordance with the laid down selection process.Thepowerofappointment
conferred on the PSC does not empower it to make appointments without any regard to the selections made afterfollowingthe
proper selection process. "It is accepted today that power of appointment and dismissal are conferred on variousauthorities
in the public interest, and not for private benefit, that they are held in trust for the publicandthattheexerciseof
these powers must be governed by reason and not caprice" per Fernando, J. In Jayawardena v. Dharani Wijetilake andOthers(2)
at 159. When the PSC makes appointments to the rank of ASP it is under a duty to make such appointments on a basiswhichis
reasonable. In fact, when the PSC appointed 14 Assistant Superintendents of Police in accordance with the order of meritset
out in the marks sheet P5 it has acted on a reasonable basis. But, can the same besaidwithregardtotheotherthree
appointments made subsequently? As I have already pointed out the reason for preparing the marks list 4R1 remains amystery.
The respondents have not established its correctness. They have not explained the basis on which thecandidatewhowasin
the 39th position in the order of merit in P5 came to be placed in the 15th position in 4R1. "Respect fortheruleoflaw
requires the observance of minimum standards of openness, fairness and accountability in administrationand this means -in
relation to appointments to and removal from, offices involving powers, functions and duties which arepublicinnature-
that the process of making a decision should not be shrouded in secrecy . .."perFernando,J.JayawardanabyDharani
Wijetilake and Others (supra).
By making three appointments on the basis of 4R1 the PSC has failed in its public duty by the petitioners.
Even after petitioner Samarasekara by his counter affidavit challenged the correctness of 4R1, thePSChasnottakenany
steps at least to examine the correctness of his challenge. This is quite in contrast to the mannerinwhichthePSChas
acted when Ratnatileke filed his application No. 1164/99. In my view, the failure of the PSC to respond to thecomplaintof
injustice contained in the applications of the petitioners constitutes a refusal to performthedutyowedbyittothe
petitioners. The above failure and the refusal of the PSC constituted a denialoftherightsofthepetitionerstobe
considered for promotions on the order of merit decided upon in theselectionprocessandreflectedinP5.Insucha
situation what is the remedy available to the petitioners?

Wade in Administrative Law makes the following observation which is relevant here. "Within the field of public law thescope
of Mandamus is still wide and the Court may use it freely to prevent breach of duty and injustice." HehasquotedDarling,
J. in support : "Instead of being astute to discover reasons for not applying this great constitutional remedy for errorand
misgovernment, we think it our duty to be vigilant to apply it in every case to which, byanyreasonableconstruction,it
can be made applicable" per Darling, J. in R. v Hanley Revising Barrister at 529. See Wade AdministrativeLaw,8thedition
pp 607-608.

In the case of Chief Constable of North Wales Police v. Evans(3) a probationarypoliceconstablewasforcedtoresign
under threat of dismissal held out by the Chief Constable who believed that the rumours he hadheardaboutEvans'private
life (which were largely unfounded) to be true that he should resign. Evans was not given a hearing before hewasaskedto
resign. The House of Lords categorically stated thatanorderofMandamustoreinstatetherespondentwastheonly
satisfactory remedy and that the House of
Lords had the power to make such an order. However, a Writ ofMandamus was not issued by the Houseforpracticalreasons.
Evans was still a probationer and he had some more time to complete his period of training. Under the regulationsapplicable
to probationers, the chief constable had the power to review, at the end of thetrainingperiod,thesuitabilityofthe
probationer and to dismiss him with one month's notice. In view of this residuary power available to the chief constablethe
House was of the view that an order of Mandamus in practice might be an usurpation of the powersofChiefConstableunder
the regulations. In view of this, the House, without granting an order of Mandamus, granted a declaration.Thedecisionof
the Houseof Lords is clear authorityconfirmingaCourt'scompetencetoissueaWritofMandamuscompellingthe
appointment of a person to a particular post or office.

In the present case the PSC does not have powers akin to the residuary powers possessed bytheChiefConstableinEvans'
case. Since the appointment of officer Moses who was placed after all petitioners in order of merit cannot bereversed,the
only way to remedy the injustice caused to the petitioners is toissueawritofMandamusdirectingthe4thto10th
respondents to promote and appoint the petitioners to the rank of ASP on the same terms applicable to Moses. Theabsenceof
precedent does not deter me when I am convinced that the onlyeffectiveremedytoremedytheinjusticecausedtothe
petitioners is an order of Mandamus.

A comparison of the Fundamental Rights applications (Nos. 607/ 99 and 608/99) with the present application indicates thatat
the time the fundamental rights applications were filed the members of PSC were not the same members named as respondentsin
the present applications. There is no material to indicate whether the appointment of officer Moses was made bythepresent
members of the PSC or their predecessors. If it had been made by the former members of thePSC,andwhentheyhavebeen
replaced by successors, the latter
may be ordered to make good their predecessors' default, R v. Hartley Revising Barrister (supra).

The respondents in their written submissions have stated that if the relief prayed for bythepetitionersisgranted,it
would prejudice the rights of others who are placed in between the several petitioners in order of merit who havenotfiled
similar applications before this Court. However, the inaction of the other candidates is not a ground to deny relieftothe
petitioners who relentlessly persued these applications to protect their rights.
The Inspector-General of Police (1st respondent) and the Secretary.MinistryofDefence(2ndrespondent)havenotfiled
objections to the petitioners' applications. The 1st respondent has not placed before this Courtanymaterialtoindicate
that there would be administrative difficulties, such as the non availability of cadre vacancies, inimplementinganorder
to promote the petitioners to the rank of ASP made in consequence of a Writ of Mandamus issued bythisCourt.Itmustbe
noted here that when thePSCearlierorderedthepromotionsofChandrasiriandMosestheywereappointedtothe
Supernumerary cadre when cadre vacancies did not exist.

For the reasons set out above I allow the applications of the petitioners in CA Application Nos. 736/2000and907/2000and
issue a Writ of Mandamus directing the 4th to 10th respondents to promote and appoint the petitioners in theabove-mentioned
applications to the rank of Assistant Superintendent of Police based on the marks sheet P5 preparedbythe3rdrespondent
and also directing the 1st and 2nd respondents to give effect to such appointments. In view of the important question oflaw
involved in this case I make no order for costs.
Application allowed.

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