S.C. (FR) Application No. 981/97 - Case of Sunil Lakshman Sirisena

S.C. Application FR No. 981/97

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

Colombo 12.

In the matter of an application Under Articles 17 and 126 of The Constitution

Petitioner:
Sunil Lakshman Sirisena, 94/3, Kirillapone Avenue, Colombo 1

Vs.

Respondents:
1. The Bank of Ceylon, New Head Office Building. 4, Bank of Ceylon Mawatha, Colombo 1.
2. Savithri Jayasinghe, General Manager, New Head Office Building, 4, Bank of Ceylon Mawatha, Colombo 1.
3. L. R. Liyanarachchi, Deputy General Manager, Human Resources, Bank of Ceylon, 4, Bank of Ceylon Mawatha,
Colombo 1.
4. N. A. K. Perera, Assistant General Manager ( Personal ), Bank of Ceylon, 4, Bank of Ceylon Mawatha,
Colombo 1.
5. B. C. Gunawardena, Assistant General Manager, Western Province South, Province Office, Western Province ( South, Nugegoda.
6. The Attorney General, Attorney General's Department, Colombo 12.

Before:
S. N. SILVA, C. J.
SHIRANI A. BANDARANAYAKE, J.
ISMAIL, J.

Counsel:
Faisz Musthapha, PC with Sanjeewa Jayawardena, For the petitioner
Uditha Egalahewa, SC, For the respondents

Argued on: 29. 11. 2000

WRITTEN SUBMISSIONS TENDERED ON:
For the petitioner: 16. 05. 2001
For the respondents: 23. 03. 2001

Decided on: 11. 06. 2001

SHIRANI A. BANDARANAYAKE, J.

The petitioner, who was 53 years of age at the time this application was filed, submitted that he had completed 33 years of 'unblemished ' service in the 1 st. respondent bank ; completed 8 years in Grade III class II ; passed the required job test ; served as relief branch manager with delegated authority for approximately 8 years and had acquired extensive and comprehensive experience in managing 'A' , 'B' and 'C' grade branches. He complained that his non-promotion to Grade III Class I am arbitrary, capricious and unreasonable and that he had been singled out for discriminatory treatment violating the petitioner's fundamental right guaranteed under Article 12 (1) of the Constitution. This Court granted leave to proceed in respect of the alleged violation of Article 12 (1) of the Constitution.

The petitioner joined the 1 st. respondent Bank in 1965 as a junior clerk and has secured successive promotions. He was promoted to Grade III Class II in August 1989 ( P1 ). Thereafter from time to time, the petitioner served as the relief branch manager in several branches (P 5 ). He also claims that on many occasions he had been sent to various super grade branches as a ' second officer'.

By a staff circular, No. 44 / 94, dated 22. 09. 1994, the 1 st. respondent Bank called for applications from officers in Grade III Class II for promotion to Grade III Class I ( P7 ). The stipulated qualifications for eligibility were as follows:

a. officers in Grade III Class II with a minimum of 3 years service in the Grade and who had passed the relevant job test ; or

b. officers in Grade III Class II with a minimum of 5 years in the Grade.

The petitioner submitted his application, in response to this circular and was called for an interview. However, his name was not in the list of promotes. He preferred an appeal to the then General Manager of the 1 st. respondent Bank, requesting to reconsider him for promotion in view of the extensive experience as a relief Branch Manager. However, by letter dated 05. 12. 1996, he was informed that in terms of the existing promotion scheme, his appeal had been rejected by an Appeal Committee.

Thereafter by a staff circular No. 8 / 97 dated 03. 02. 1997, the 1 st. respondent Bank invited applications from officers in Grade III Class II for promotions to Grade III Class I ( P 12 ). The stipulated qualifications for eligibility were the same as set out above.

The petitioner applied again on 14. 02. 1997 and was subsequently called for an interview. However, in this instance too, his name was not included in the list of promotees. He preferred an appeal to the 3 rd. respondent through the 5 th. respondent, but did not receive any response.

The petitioner's submission was that the list of promotees to Grade III Class I , as appear in circular No. 80 / 97, contained the names of 16 Management Trainees with approximately 5 years service in the Bank, whilst the petitioner counts 33 years of service. He specifically alleged that one U. R. Fernando and Ms. J. N. Mohotti were promoted, notwithstanding the fact that they had not passed the job test nor any banking examinations. He also made allegations against one J. B. V. Fernando, the 3 rd. and 4 th. respondents, that they were promoted either without qualifications or sufficient amount of seniority.

The 4 th. respondent in his affidavit averred that while the petitioner was serving at the Ratnapura branch, he was sent on relief duty to various branches in order to relieve the Managers within the Sabaragamuwa Province. This was done on exigencies of service in order to grant leave to officers as Managers. These acting appointments were temporary measures. Therefore the position of the 4 th. respondent was that the petitioner was not entitled to any preferential treatment in promotions for acting for the Branch Manager during his period of service.

When applications were called for in 1994, 167 applications were received and they were evaluated on the basis of staff circular No. 33 / 85. Out of 167 applicants only 93 were promoted to Grade III Class I in the order of merit. For this purpose, the cut off mark was 50 and the petitioner obtained 43.73% . He had ranked 129 th. in the merit list.

In 1997 when applications were called for the promotions to Grade III Class I , there were 268 applicants. Out of them 122 were promoted in order of merit. The cut off point was 53.97% and the petitioner obtained 53.82%. He had ranked 124 th. in the order of merit. According to the 4 th. respondent, not only the petitioner, but over 25 applicants who had served the Bank for more than 33 years had failed to secure promotion.

It appears that the main grievance of the petitioner is the promotion of 16 management trainees with less number of years in service than the petitioner. He had not challenged the marks, given to him at the interview. Learned State Counsel for the respondents submitted that the entrance level qualification required for management trainees to join the Bank was a University Degree with a first or second Class. The petitioner belonged to another class of persons and had joined as a junior clerk. U. R. Fernando and Ms. J. N. Mohotti were eligible to apply under category II of the circular. The marking scheme reveals that 10 marks were awarded to the applicants who had passed the Institute of Bankers Examination, Parts I and II. While J. B. V. Fernando is an associate of the Institute of Bankers, the petitioner had failed even to complete Part I of the Examination of the Institute of Bankers. The 3 rd. and the 4 th. respondents are Graduates of the University of Ceylon. The 3 rd. respondent joined the Bank in 1967 to the rank of sub-accountant. He was promoted to the Grade of Staff Assistant Class II in 1971. He has completed Part I and two sections in Part II of the Institute of Bankers Examination. The 4 th. respondent joined the Bank in 1965 and was promoted to the Grade of Staff Assistant Class I in 1972. He has completed the intermediate examination of the Institute of Bankers.

In the application dated 14. 02. 1997 submitted by the petitioner, he has clearly stated that he does not possess a degree from a University or any other professional qualification nor has he received any marks for any commendation whilst in the present grade. He has made a special claim in his application, with regard to his long-term service, which reads thus:

" I count thirty three (33) years of service of which ( 8 ) eight years in the present grade. During my career I have served in outstation branches for 10 years. During my term of 5 years at Ratnapura Super Grade Branch I was in charge of the Credit and International units. Presently I am attached to Western Province ( South ) in the relief pool , where I discharge the duties of a branch manager by relieving branch managers coming under the purview of Western Province ( South ) " .

It is evident that the 1 st. respondent Bank has paid attention to the officers who had been serving for long years. According to the evaluation of applicants for promotion to Grade III Class I, a maximum of 30 marks were allocated for service in the Grade ( 5 marks per year of service ) in excess of the minimum required for eligibility. The petitioner was thus given 22.92 marks at the final evaluation In 1977.

In these circumstances, it is clear that the 1 st. respondent Bank has given due consideration to the experience and merit of the respective applicants as the basis for granting promotions to Grade III Class I . The selection is not arbitrary, capricious or unreasonable as alleged. I therefore hold that the petitioner has failed to establish any violation of his fundamental right guaranteed by 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

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