S.C. (FR) Application No. 760/99 - Case of H. M. C. D. Herath

S.C. Application FR No. No. 760/99

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

Petitioner:
H. M. C. D. Herath, Siripathy, Galamuna, Kudawewa.

Vs.

Respondents:
1. J. L.C. Salgado, Air Commodore, Director ( Operations ), Air Force Headquarters, Colombo 1.
2. Jayalath Weerakkody, Air Marshal, Commander of the Sri Lanka, Air Force, Air Force Headquarters,
Colombo 1.
3. The Attorney General, Attorney General's Department, Colombo 12.

Before:
S. N. SILVA, C. J.
PERERA, J.
SHIRANI A. BANDARANAYAKA J.

Counsel:
L. C. Seneviratne, P.C., with Ronald Perera, For the Petitioner
I. Demuni de Silva, SSC, For the Respondents

Argued on: 15. 01. 2001

WRITTEN SUBMISSIONS TENDERED ON:
For the Petitioner: 19. 02. 2001
For the respondents: 12. 03. 2001
Further written submissions:
For the Petitioner : 26. 03. 2001

Decided on : 24. 05. 2001

SHIRANI A. BANDARANAYAKA, J.

The petitioner joined the Sri Lanka Air Force in August 1993 as an Officer Cadet in the General Duties Pilot Branch. According to him, he underwent 18 months of ground combat and flying training and while the petitioner was undergoing flying training, his flying was discontinued on the ground that his progress was slow. However, the petitioner was given the option, either to remain in the Air Force by joining any other branch or to leave the Sri Lanka Air Force. The petitioner, at that time, decided to join the Air Traffic Control Branch. After a four months basic training, the petitioner was promoted to the rank of a Commissioned Pilot Officer on 02. 05. 1995.

The petitioner submitted that during this period there were several air disasters due to the LTTE missile attacks and the Sri Lanka Air Force lost around 25 of its senior pilots. Due to this unexpected situation, there was a sudden shortage of pilots in the Sri Lanka Air Force and a decision was taken train some officers of other branches as pilots because they were already trained in ground combat activities.

The petitioner was one of such other branch officers selected for flying duties and was sent to India with other selected officers for flying training by the Indian Air Force. Thereafter the petitioner was posted to Ratmalana for training in flying fixed wing aircrafts and after a period ' conversion training ' , he was assigned duties as a co - pilot in the No. 2 squadron at the Ratmalana Air Base. The petitioner submitted that he had served for more than three ( 3) years as a co - pilot. According to the petitioner there were no complaints against his flying and he passed all flying tests and ratings satisfactorily. After completing the recommended flying hours, on 15. 08. 1997, he was awarded the flying Brevet at a ceremony for awarding flight medals together with some other pilots. The petitioner submitted that the award of a flying Brevet to an air force pilot, is a recognition that he is a qualified and competent military aviator.

On 31. 07. 1999, on order No. OPS 489 dated 30. 07. 1999 (P7) of the 1 st. respondent, the petitioner was put out of flying duties, and was sent to the Air Traffic Control Branch. He was to report as an Air Traffic Control officer attached to the Palaly Air Base. The petitioner has sent an appeal on this transfer dated 25. 08. 1999 ( P 11 ) to the 2 nd. respondent, but he had no response to the appeal.

The petitioner alleges that the decision taken by the 2 nd. respondent to transfer the petitioner to the Air Traffic Control Branch was in violation of his fundamental right guaranteed under Article 12 ( 1 ) of the Constitution.

This Court granted leave to proceed in terms of Article 12 (1) of the Constitution.

The position taken up by the petitioner is that, at the time he was entrusted with flying duties and even thereafter, he was given a legitimate expectation by the Sri Lanka Air Force that even though they will not be absorbed into the General Duties Pilot Branch, in all probability they will be allowed to fly as pilots until their retirement. The petitioner relied on the document dated 05. 10. 1995 ( P3 ) which referred to the agreement regarding flying training for officers from other branches. Based on this letter, the petitioner was of the view that an assurance was given to the officers that they will be absorbed into the General Duties Pilot Branch during the period of their flying, if there is a dearth of Pilots in the said branch. The petitioner's position is that there was a dearth of Pilots during the period in question and therefore he could have continued as a Pilot in the General Duties Pilot Branch.

According to the petitioner, in 1999, the approved cadre of Pilots of the General Duties Pilot Branch was 220, whereas the available number of Pilots was 147 including 25 trainees. Accordingly, there were 73 vacancies in the approved cadre of the General Duties Pilot Branch in 1999 ( P 8 ). The petitioner further submitted that, there was a proposal to increase the cadre by another 34.

The petitioner claims that he had only 4 months training and 6 months experience in the Air Traffic Control Branch at the time he was reverted to this branch. The officers of the Air Traffic Control Branch are from time to time given overseas training according to their ranks. As the petitioner was attached for flying duties for more than 4 years, he lost the opportunity to obtain overseas training designed for Pilots and Flying Officers. However, his junior officers in the Air Traffic Control Branch upto 7 batches have obtained all the overseas training due to them. Therefore the petitioner is less qualified than his junior officers in his own branch.

The respondents took up the position that although the petitioner was enlisted as an officer cadet in the General Duties Pilot Branch of the Sri Lanka Air Force, he had only 09 months of training. This period of 09 months consisted of 04 months of ground combat training and 05 months of flying training. The training course for officer cadets is approximately 18 months . This consisted of 05 months of ground combat training and the balance period for flying training which must include approximately 180 hours. The petitioner's performance upon completion was just 19 hours and this was found to be well below the required standard. Due to this reason, the petitioner was suspended from flying duties with effect from 03. 05. 1994. Thereafter, according to the respondents, as he had opted to join the Air Traffic Control Branch he was sent for training and was commissioned as a Pilot Officer on 17. 04. 1995 and posted to Vauniya. There was a sudden shortage of Pilots due to the loss of 11 senior Pilots as a result of terrorists attack and volunteers from other branches were taken to undergo flying training. Petitioner was one of the 14 officers who volunteered for flying duties and sent for training to India in 1996.

Prior to the departure to India in 1996, all the officers were told to enter into an agreement with the Government of Sri Lanka. It was also made it necessary to enter into a surety bond . The petitioner also entered into this agreement ( 2R1 ).

Clause 21 of this agreement dated 05. 12. 1995 states that ,

" Whilst undergoing training and on completion of the said training the officer shall remain in his original branch and continue to maintain the same seniority . "

Clause 22 of this agreement states that,

"On completion of training in flying, he may be attached for flying duties in Sri Lanka Air Force and the Commander shall have the discretion to revert the officer to the original branch duties at any time. The officer will not be granted a change of branch to the General Duties Pilot Branch and therefore shall not make any claim for absorption during the period of flying duties (emphasis added )."

According to these two clauses, it was evident that the petitioner was aware of the conditions that were laid down with regard to the training in flying he had undergone in India. Clause 22 of the agreement clearly points out that the intention of the Sri Lanka Air Force in calling for volunteers from other branches to undergo flying training was solely as a temporary measure to meet a special and crucial situation which prevailed in 1995. As has been enumerated by clause 22, the Sri Lanka Air Force had the discretion of reverting the duties of the flying officers to their original branch. This was a clear indication that their services were required only on a temporary basis.

According to the Respondents the decision to revert all officers who volunteered for flying duties from other branches of the Sri Lanka Air Force was taken at a conference on 21. 07. 1999 which was attended by zonal commanders, Base Commanders and Commanding Officer s after careful evaluation of the total number of flying hours such officers had completed. The requests made by the Commanding Officers of the respective branches for the release of these officers due to the shortage of manpower faced by them was also taken into consideration.

It is common ground that the petitioner had completed approximately 680 flying hours and this included 95 hours of flying training in India. The respondents submitted that the total number of flying hours completed by the petitioner during his attachment to the General Duties Pilot Branch between September 1996 and June 1999 is approximately 150 hours which is less than 13 hours for a month. The total number of flying hours completed by the petitioner was very much less than the generally accepted number of flying hours for a co - pilot. Accordingly, it was decided that the petitioner and several other volunteers from other branches, assigned to Fix - wing Air Craft were reverted to their original branches.

With regard to the number of vacancies which existed in the Sri Lanka Air Force in the Air Traffic Control Branch, it is the position of the respondents that although it has increased since 1995, that there never existed 107 vacancies in the General Duties Pilot Branch as this number includes the proposed increase which was not accepted.

The petitioner concedes that he had signed the agreement mar-ked 2R1, before he joined the General Duty Pilot Branch. Clause 19 of the agreement states that,

" The trainee hereby agrees to receive a course of training in flying as an officer by not been given a change of branch to General Duty Pilot Branch at his own will and not under any compulsion from the Air Force and undertakes all risks involved in discharging the said duties. "

Accordingly, the petitioner was fully aware that he will not be absorbed into the General Duty Pilot Branch although he was selected for training. In the circumstances, it would not be correct to contend that the petitioner had a legitimate expectation that he would become a pilot, working in the General Duty Pilot Branch. Furthermore, the petitioner has not been able to refer to a single instance where any of the officers who were similarly circumstanced to the petitioner, were treated in a manner different to him.

The petitioner in paragraph ( d ) of the prayer to the petition has prayed that he be allowed to function as a Pilot attached to the General Duty Pilot Branch or else to allow him to obtain a discharge from the Sri Lanka Air Force. The petitioner is a Commissioned Officer in the Regular Air Force and in terms of section 11 of the Air Force Act, No. 41 of 1949 ( as amended and Regulations made there under) is not entitled to resign from his commission unless allowed to do so by Her Excellency the President in her capacity as the Commander-in-Chief.

In these circumstances , I hold that the decision taken by the 2 nd. respondent to transfer the petitioner to Air Traffic Control Branch was not in violation of Article 12 ( 1 ) of the Constitution. This application is accordingly dismissed, but in all the circumstances without costs.


JUDGE OF THE SUPREME COURT

S. N. SILVA, C. J.
I agree.
CHIEF JUSTICE

PERERA, J.
I agree
JUDGE OF THE SUPREME COURT