S.C. (FR) Application No. 528/00 Warnakulasooriya Merina Ratnaseeli Fernando and others

S.C. Application FR No. No. 528/00

In the Supreme Court of the Democratic Socialist Republic of Sri Lanka

Colombo 12.

In the matter of an Application under Article 126 of the Constitution

Petitioners
1. Warnakulasooriya Merina Ratnaseeli Fernando,"Ratnakala ', Thambarawila, Waikkala.
2. Rajapakse Dissanayake, Mudiyanselage Kulakusum, Kithsiri Wimalachandra, "Tikiri", Dambawinna,
Welimada.
3. Wickramage Saman Priyantha, 10/1, Galgamuwa, Veyangoda.
4. Dissanayake Mudiyanselage, Ranaweera,"Anura", Pannalwela, Lunuwatta.
5. Damayangoda Poorna Kumara, Yapa, "Kumarawasa", Atala.
6. Sinahalage Ananda Seneviratne, Pahalahinguruwaka, Kotawella, Rambukkana.
7. Hettiya Handi Pathmarani Silva, Neegrodarama Mawatha, Madampagama, Amabalangoda.
8. Weerasinghe Mudiyanselage, Saman Kumari Weerasinghe, "Saman Paya", Navagamuwa, Devalegama.
9. Koswatte Gamalathlage, Mahendra Karunaratne, "Mahendra", Palle Weragama, Kaikawala, Matale.
10. Patabendalage Gedara, Sunil Shantha, "Alliyadda Gedara", 27, Walala, Menkhinna.
11. Palilpana Walwwe Udaya, Bandara Palipana., B 84, Mariya Watta, Gampola.
12. Nisha Sulari Kottearachchi, 2, Harischandra Mawatha, Ampitiya Patu Maga, Tenenkubura.

Vs.

Respondents:
1. D. M. Jayaratne, Minister of Lands and Agriculture, Ministry of Lands and Agriculture, Sampathpaya, Battaramulla.
2. The Secretary, Ministry of Lands and Agriculture, "Sampathpaya", Battaramulla.
3. Director - General of Agriculture, Department of Agriculture, Peradeniya.
4. Director - General ( Budget ), Treasury, Colombo.
5. D. B. Jayasundara, Secretary, Ministry of Finance and Planning, Presidential Secretariat,
Colombo 1.
6. The Attorney - General, Attorney - General's Department, Colombo 12.

Before:
FERNANDO, J.
EDUSSURIYA, J. and
WIGNESWARAN, J.

Counsel:
Upul Jayasuriya, For the petitioners
Mrs. I. D. de Silva, SSC, For the respondents

Argued on: 14 TH. June 2001
Decided on: 27 TH. SEPTEMBER 2001.

FERNADO, J.

The twelve Petitioners obtained their degrees - some in Agriculture, some in Science - prior to 1994, having spent not less than seven years in the University. In terms of a Cabinet decision in 1994, they were appointed as Graduate Trainees on an allowance of Rs. 2500 per month. The letters of appointment, dated 24. 3. 94, issued to them stated that upon satisfactory completion of one year's post - graduate training action would be taken to give them permanent employment with a salary appropriate to their qualifications and ability. They were seconded to the Department of Agriculture. Their period of training commenced on 1. 7. 94, and, after extension, came to an end on 31. 12. 97.

In terms of another Cabinet decision of 17. 12. 98, a large number of persons who had graduated in or about 1998, were recruited as Graduate Trainees in 1999, on an allowance of Rs. 4,000 per month, subject to a training period of one year.

The Petitioners complain that their fundamental rights under Article 12 ( 1 ) were infringed because they were appointed to the post of Research Assistant Grade II B ( which had a salary scale of Rs. 51,840 - 7 x Rs. 1,320, 10 x Rs. 1,560 - Rs. 76,680 ), which they say was not appropriate to their qualifications and ability, while 37 of the Graduate Trainees recruited in 1999, to the Department of Agriculture, were appointed to newly - created posts of Graduate Agricultural Development Officers ("GADOS") which had a salary scale of Rs. 72,600 - 14 x Rs. 1560, 5 x Rs. 2,460 - Rs. 106,740, without even considering the Petitioners.

The Petitioners' case is that by 1997 they had undergone training for three years. By letters dated 26. 9. 97 addressed to the 1 st. Respondent ( the Minister of Lands and Agriculture ), the 2 nd. Respondent, ( the Secretary to that Ministry ) , the 3 rd. respondent ( the Director - General of Agriculture ), and others, they pleaded for appropriate employment - urging that they were over 30 years of age, that some were married with children, and that they were undergoing hardships by having to exist on Rs. 2,500 per month. There was no response to that appeal. Instead, by letter dated 9. 10. 97, the 3 rd. Respondent informed them that the Cabinet had decided on 10. 9. 97 that applications should be called from Graduate Trainees in Departments under the Ministry of Agriculture to be interviewed for appointment to 96 vacant posts of Research Assistant Grade II B.

The relevant portions of the 1 st. Respondent's Cabinet memorandum dated 3. 7. 97, which the Cabinet approved on 10. 9. 97, are as follows :

".... [ on 26. 2. 97 ] Cabinet has granted approval, inter alia, to identify the existing non-staff vacancies ... which are suitable for employment of graduates and such identified vacancies to filled with Graduate Trainees, deviating from the scheme of recruitment as a once and for all special intake.....

96 posts of Research Assistants in the Department of Agriculture remain vacant. These officers assist the Research Officers in all their agricultural research work. Hence I am of the view that we should recruit persons with educational qualifications higher than the G. C. E. (Advanced Level ) . The educational qualifications stipulated to for this post at present is the Diploma in Agriculture
.... there are 74 Graduate Trainees with degrees in Agricultural Science, Bio Science and Physical Science..... [ They should ] be considered for this post. With a view to recruiting [ the best ] it is intended to select..... on the basis of interviews....

I therefore propose that educational qualifications required for the post of Research Assistant....... be amended and recommend Cabinet approval be granted for the following :

i. to amend the educational qualification for the post.... by substituting B. Sc. degree in Agriculture or B. Sc. degree with passes in Botany, Zoology, Chemistry and Physics for G.C.E. (Advanced Level).

ii. to fill the existing vacancies in the posts of Research Assistant.... with Graduate Trainees, who have [ those ] educational qualifications..... as a once and for all special intake."[ emphasis added ]

In the meantime, in October 1997 seven Graduate Trainees ( in the same Ministry ) with degrees in Economics were appointed as Economic Assistants, on the salary scale of Rs. 79,380 - 16 x Rs. 2,460 - Rs. 118,740.

Interviews for the post of Research Assistant were held on 27 th. and 28 th. November. By letters dated 28. 11. 97, the Secretary of the Graduate Trainees Association in the Ministry of Agriculture appealed to the President as well as the Minister of Plan Implementation. He pointed out that previously the posts of Research Assistants had been filled from among non - graduates, having only a diploma in Agriculture ; that those posts were not in keeping with their qualifications and experience ; and that Graduate Trainees in other Ministries had been given permanent appointments ( details were given ) with salaries appropriate to their qualifications and experience. That appeal, too, did not receive any response.

The Petitioners were thereafter appointed as Research Assistants - ten on 15. 1. 98 and the other two in early February. The Petitioners claim that they accepted those appointments under protest, but that the 3 rd. Respondent denied. The Petitioners produced two letters, dated 2. 1. 98 and 17. 3. 98, addressed to the 7 th. and the 9 th. Petitioners : the first stated that the training period had come to an end on 31. 12. 97, and the second stated that because the 9 th. Petitioner had not accepted the post of Research Assistant, his name had been deleted from the list of Graduate Trainees. No such deletion took place because the 9 th. Petitioner had accepted that position on 15. 1. 98. However, that correspondence shows, firstly, that the Petitioners did not accept that the post and salary scale were appropriate, and secondly, that non - acceptance would have resulted in their losing even the paltry allowance of Rs. 2,500 per month which they were receiving more than three years after recruitment . Their acceptance was not entirely voluntary.

I must turn now to the 37 Graduate Trainees who were appointed as GADO's. On 17. 12. 98 the Cabinet approved the recruitment of 4,000 unemployed graduates, and their training and placement, after considering the following memorandum dated 15. 12. 98 :

"Recruitment of 4000 Graduates to Improve Implementation Capabilities of Priority Activities of the Government

The Ministry of Finance and Planning, having observed certain shortages of personal [ sic ] and its adverse impact on the implementation of various government development programmes, has identified 4,000 vacancies at both provincial as well as national levels, to be filled by graduates in order to overcome the implementation problems of government development programmes and to improve the quality of such services.....

It is proposed that 4,000 unemployed graduates be recruited as trainees and placed for on the job training programmes for a period of one year, before confirming in specific positions which will be created in place of redundant vacant positions in identified agencies, so that scheme will not result in an additional burden on the Government Budget. The National Budget Department will specify job descriptions of these officers for their effective and productive use......."[ emphasis added ]

The Respondents' position is set out in the affidavits of the 3 rd. to 5 th. Respondents. The 4 th. Respondent is the Director, National Budget, and the 5 th. Respondent is the Secretary, Ministry of Finance and Planning. According to the 3 rd. Respondent, in the past the post of Research Assistant Grade II B"was filled by persons who had undergone training in the Sri Lanka Technical Service and possessed a pass in the required subject at the G. C. E. ( O / L ) Examination as well as a Diploma in Agriculture". That was changed by the Cabinet decision of 10. 9. 97.

According to the affidavits of the 3 rd. to 5 th. Respondents :

(a) In view of the shortage of personnel and its adverse impact on the implementation of development programmes, the Ministry of Finance submitted to the Cabinet a memorandum dated 15. 12. 98 in order to improve the quality of such services, and the Cabinet granted approval for recruitment, training and placement of unemployed graduates ;

(b) accordingly, a large number of unemployed graduates were recruited ;

(c) in response to a request from the then Director, National Budget - in or about April 2000 - the 3 rd. Respondent suggested that 50 posts of GADO's be created to be filled by Graduate Trainees ;

(d) thereafter, in terms of the aforesaid Cabinet decision, 50 posts of GADO's, were created in the Department of Agriculture ; &

(e) again acting in terms of the aforesaid Cabinet decision, the 5 th. Respondent, by his letter dated 25. 7. 2000, informed the 3 rd. Respondent of the creation of those 50 posts, and requested him to fill them from among the Graduate Trainees posted to his Department.

By his letter dated 25. 7. 2000, the 5 th. Respondent stipulated that in the case of newly created posts in any Department, the Head of the Department should prepare the scheme of recruitment and obtain the approval of the Director of Establishments.

It is not disputed that thereafter, on or about 9. 10. 2000, 37 Graduate Trainees recruited in 1999 were appointed as GADO's. Although the Petitioners had by letter dated 10. 7. 2000 requested the 3 rd. Respondent to consider them for such appointments, that letter was not even acknowledged.

The explanation given by the Respondents for not considering the Petitioners was that consequent to a Cabinet decision ( presumably, that of 10. 9. 97 ), the Petitioners had been appointed to vacancies that existed in the Department of Agriculture"commensurate with their qualifications"; that they could not have been considered for the new posts of GADO as they already held permanent appointments, and that new posts had been specifically created in terms of the Cabinet decision of 17. 12. 98 ; that the Petitioners and the 37 Graduate Trainees recruited in 1999 belonged to two different Graduate Training Programs and were not similarly circumstanced ; that the Petitioners could not have"entertained a legitimate expectation to be considered for appointment"to that post ; and that the Respondents had"merely given effect to the decision of the Government to implement the training and placement programme of Graduate Trainees ' .

I cannot accept the Respondents' contention that the letters of appointment issued to the Petitioners did not create even a legitimate expectation. On the contrary, by those letters the State undertook an obligation to take action to give them permanent employment with a salary appropriate to their qualifications and ability. The Cabinet decision on 10. 9. 97 was consistent with that obligation, recognizing that Graduate Trainees were entitled to appointments"suitable for graduates". The work of a Research Assistant had been assessed as appropriate for persons with significantly lower qualifications and experience, with correspondingly lower remuneration. Even without a change in the eligibility requirements, a graduate was entitled to apply for and to be appointed to such a post - but that only meant that he was qualified ( indeed, over - qualified ) to apply, and not that the work was appropriate to his qualifications. Merely increasing the eligibility requirement, by making a degree in Agriculture or Science essential, did not automatically make either the work or the remuneration appropriate for a graduate. It is clear that the Cabinet memorandum was not based on a proper review of the functions of the post. Indeed, it did not even disclose to the Cabinet the salary scale applicable to the post. The initial of the salary scale of that post was Rs. 51,840 ( Rs. 4,320 p.m.), and the maximum, after 17 years service, was Rs. 76,680 ( or Rs. 6,390 p.m. ). That could not reasonably have been regarded as"commensurate with their qualifications"for graduates in Agriculture or Science after three and half years post - graduate training in the Department of Agriculture. I must add that my view on this aspect is not based on any notion that the work of a Research Assistant is beneath the dignity of graduates. Free University education is available in Sri Lanka only to a few of those eligible for it. The entire expense on such education is met out of the taxes directly and indirectly paid by the entire community. The proper management of human resources, in the best interests of the community, requires that work be given to graduates appropriate to their qualifications, and equity requires that they be remunerated accordingly.

The State was under an obligation"to take action"to give the Petitioners appropriate employment. By appointing them as Research Assistants Grade II B the State did not discharge that obligation. The obligation"to take action"could have been fulfilled in one step or in several. Their appointment as Research Assistants was no more than the first step. Accordingly, the fact that they accepted those appointments is irrelevant. That cannot be regarded as a waiver of their rights.

I accordingly reject the Respondents' plea that the Petitioners could not have been considered for the new posts of GADO as they already held permanent appointments.

The Respondents also claim that the post of GADO had been specifically created in terms of the Cabinet decision of 17. 12. 98, and that those coming under two different Graduate Training Programs were not similarly circumstanced. That decision did not conflict with the petitioners' rights. In regard to the new posts"which will be created", the Cabinet neither excluded schemes for recruitment, nor reserved such posts exclusively for the 1999 Graduate Trainees ; and did not dispense with the usual selection processes. Hence schemes of recruitment and job descriptions were required, as also the Director of Establishments.

I must stress that that Cabinet memorandum did not approach the recruitment, training and placement of graduates as a welfare measure to relieve graduate unemployment, but as a step necessary to rectify an actual shortage of personnel, in order improve the quality of State services, in priority areas and in development programs. checked

The appointment of the 37 Graduate Trainees recruited in 1999 took place without a scheme of recruitment, without the approval of the Director of Establishments, without a job description, and without advertisement. The Petitioners were denied the right to be considered, although their qualifications and experience were no less. It is true that the Petitioners had been recruited under an earlier Graduate Training Program, but the State was under a subsisting obligation to provide appropriate employment to them, and there was no valid reservation of the new posts for the Graduate Trainees recruited in 1999. Simply because they were recruited under two schemes they cannot be treated as having been in two materially different classes. Indeed, the petitioners may have had a right to prior consideration.

When judgment was reserved on 14. 6. 2001, the Court requested the Attorney - General to obtain full information as to how the Cabinet decision of 17. 12. 98 were implemented, particularly as to the creation of the new post, the job description, the scheme of recruitment and the determination of the salary scale. On 16. 7. 2001, the Respondents submitted certain documents which, however, did not include any of the foregoing. Among the documents produced was a Cabinet memorandum and decision, both of 29. 6. 2000. That memorandum made reference to the report of a Committee, and requested an increase intake of approximately 9,000 graduates, contemplating their placement in permanent posts, existing as well as new. The following extract is relevant :

"In identifying such permanent posts, due consideration has been given to the vacancies existing in respective institutions....

The Committee has stressed the need for recruitment to such posts under this Graduate Placement Project outside schemes of recruitment applicable to these posts. It is therefore necessary to fill the existing vacancies and create certain posts depending on the requirements of respective institutions......"

Approval was sought and granted to recruit 9000 graduates, and

"( i ) for direct recruitment of such trainees numbering 483 to appropriate [ existing posts which were identified in a schedule ]. [ ii ] for the creation of 9219 permanent posts.......... ( iii ) for the determination of Seniority........"

The Petitioners' complaint relates to new posts, and not to vacancies in existing posts. The schedule submitted by the Respondents establishes that 50 new posts of GADO's were to be created. Two matters are relevant. In regard to new posts, the Cabinet did not dispense with the need for a scheme of recruitment , the approval of the Director of Establishments, a job description, and the usual selection procedures. Besides, only 9000 graduates were to be recruited, but the total number of posts was 9,702 ( 483 existing and 9,219 new ). While there appears to have been an intention to reserve some existing posts for Graduate Trainees recruited in 1999 outside the existing scheme of recruitment, the Cabinet did not expressly reserve any of the newly - created posts exclusively for the new trainees, and in the circumstances such a reservation cannot be implied.

It is difficult to understand how the 3 rd., 4 th. and 5 th. Respondents, all holding high office in the public service, submitted affidavits in this case in March 2001 categorically asserting that the 50 new posts had been created in pursuance of 17. 12. 98 Cabinet decision, and failing to mention the Cabinet memorandum and decision of 29. 06. 2000. A dispute affecting the livelihood of thousands of graduates demanded much greater care and diligence from them in placing the facts before this Court.

The resulting position is that the State was under an obligation to take action to provide appropriate permanent employment for the Petitioners ; while other graduates recruited in 1994 did receive suitable employment, the appointments given to the petitioners in early 1998 were not to appropriate posts, and therefore did not discharge the obligation owed to them ; When 50 new posts of GADO's were sanctioned on 29. 6. 2000, there was no valid reservation of those posts for the Graduate Trainees recruited in 1999 ; nor were the Petitioners validly excluded from consideration ; appointments were made to 37 such posts without a scheme of recruitment and job description, without complying with usual selection procedures ; and they were made, with undue haste on or about 9. 8. 2000, without even considering the Petitioners, who had not only graduated six or seven years earlier, but also had much longer post - graduate training.

The Petitioners were entitled, both by virtue of their original letters of appointment as well as Article 12 ( 1 ), to equal treatment in regard to promotion. Article 12 must be read in the context of Article 7 of the International Covenant on Economic, Social and cultural Rights, which guarantees the right to an"equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence". The failure to consider them resulted in serious loss and prejudice to the Petitioners : the salary scale on which the Petitioners had been placed, despite considerably longer experience and training, was such that it would have taken them 14 years to reach the initial of the scale on which their juniors were placed.

I therefore grant the Petitioners a declaration that their fundamental rights under Article 12 ( 1 ) have been infringed. They have not asked that the 37 appointments already made be quashed, and those appointees were not made parties. In the absence of a scheme of recruitment, it is not fitting that this Court should direct that the Petitioners be appointed as Graduate Agricultural Development Officers. However, had they been duly considered, it is very likely that a reasonable interview panel would have given them preference. They have thus suffered financial loss as well as prejudice to their promotional prospects - and that will continue in the future too. I accordingly award each Petitioner a sum Rs. 200,000 as compensation payable by the State on 1. 2. 2002. If, however, any petitioner is appointed to the post of Graduate Agricultural Development Officer on or before 31. 1. 2002, the amount of Compensation payable to him will be reduced to Rs. 80,000 ; and if such appointment is retrospective to a date anterior to the effective date or dates of appointment of the 37 Graduate Trainees, and includes all arrears, the amount of Compensation payable will be reduced to Rs. 20,000. The Petitioners will also be entitled to one set of costs in a sum of Rs. 25,000 payable by the State.


JUDGE OF THE SUPREME COURT

EDUSSURIYA, J.
I agree.
JUDGE OF THE SUPREME COURT

WIGNESWARAN, J.
I agree.
JUDGE OF THE SUPREME COURT