ALMEIDA
v.
CEYLON FISHERIES CORPORATION
AND OTHERS
Page 361
SUPREME COURT
DHEERARATNE,J.,
ANANDACOOMARASWAMY, J. AND
GUNASEKERA.J.
S.C. APPLICATION NO.
310/97 (FR)
Fundamental rights
refusal to grant an extension of service discretion of the appointing
authority art. 12 (1) of the constitution.
The petitioner was the
marketing manager of the 1st respondent
corporation. On reaching the age of 55 years which was
the age of optional retirement, he applied for an extension of service for one
year. The petitioner's application was rejected by the board of directors of
the 1st respondent corporation having regard to the fact that there
was a criminal prosecution pending against the petitioner and that his service
was not indispensable.
Held:
There was a discretion
vested in the board of the 1st respondent corporation to grant or
refuse an extension of service after an officer reached the optional age of
retirement. The decision of the board to refuse an extension of service to the
petitioner could not be said to be arbitrary or capricious and violative of article 12 of the constitution.
Page 362.
APPLICATION for
relief for infringement of fundamental rights.
Upul jayasuriya
with p. Radhakrishnan for petitioner.
Shavindra fernando
ssc for
attorney general.
Cur. adv. vult
June 8, 1998.
GUNASEKERA.J.
The petitioner who was the
marketing manager of the 1st respondent corporation complains of the
violation of his fundamental rights guaranteed under articles 12 (1) and 12 (2)
of the constitution by the corporation's refusal to grant him an extension of
service for one year from 1.1.97 on his reaching the age of 55 years.
The
petitioner had been appointed to the post of marketing officer in grade ix of
the fisheries corporation with effect from 26.7.1965 by a letter of appointment
marked 'p1'. Over the years he had been promoted to higher grades and had been
appointed to the post of marketing manager, grade i,
with effect from 1.11.1986 by a letter of appointment 'p3' dated 11.11.1986 and
thereafter had been promoted to a special grade executive post with effect
from 1.1.1996 by letter 'p4'.
It is
to be noted that none of the letters 'p1', 'p3' & 'p4' specify an age of
retirement but however, 'p4' & 'p3' refer to the terms and conditions
specified in the original letter of appointment 'p1'. Clause 2 of 'p1' issued
to the petitioner inter alia states: "you will
be subjected to the administrative, financial and disciplinary orders of the
corporation and any other orders issued from time to time by or on behalf of
the board" and clause 16 states: "after you are confirmed in your
appointment your employment is terminable on the giving of three months'
written notice or on the appointment of three months' salary in lieu thereof on
either side".
By a notice dated 19.3.1996
marked 'p5' the 4th respondent had notified all staff officers who
intended to continue in service in the 1st respondent corporation after attaining 55
years of age to forward a request indicating their desire to continue in
service 6 months prior to reaching 55 years. Since the petitioner would have
reached 55 years
Page 363.
Of age on 1.1.97 he had by
letter 'p6' dated 2.6.96 requested that he be granted an extension of service
for one year from 1.1.97. The petitioner had been informed by the 4th
respondent by ‘p7’ dated 14.11.96 that his application for an extension of
service after 55 years was rejected consequent upon a policy decision taken by
the board of directors of the 1st respondent corporation and that
steps would be taken to treat him as being retired from 1.1.97. The petitioner
states that subsequently by an internal circular no. 97 01 dated 15.1.97
marked 'p9' that the common policy decision of the board of directors of the 1st
respondent corporation not to engage employees whomsoever beyond the age of 55
years was amended to fall in line with a secretarial division circular no. Sec
131/1 dated 26.10.65 marked 'p8' according to which the board had decided that
the age of retirement of employees of the 1st respondent corporation should be
(1) 55 years for optional retirement and (2) 60 years for compulsory
retirement.
It was
contended for and on behalf of the petitioner that circular 'p9' further
provided that those employees who had been retired on reaching the age of 55
years between december, 1996 and january,
1997 could make an application for an extension of service for the
consideration by the board, and in consequence of that provision that the
petitioner applied for an extension of service for one year by his letter dated
16.1.1997 marked 'p10' and that his request for an extension of service was
rejected by the 2nd
respondent by letter dated 24.2.97 marked 'p2'.
It was
urged by learned counsel for the petitioner that the rejection of the application
of the petitioner for an extension of service by one year from 1.1.97 was violative of the provisions of articles 12 (1) and 12 (2)
of the constitution since the rejection was capricious and discriminatory. It
was submitted on behalf of the petitioner that during his long period of
service of over 30 years that he had not been found wanting in respect of any
aspect of his work and had a reasonable expectation of securing an extension of
service after reaching the age of 55. Further it was contended that the
petitioner had been exonerated by the inquiring officer who had held a
disciplinary inquiry in 1991 and notwithstanding the fact that the petitioner
had a case no. B 274/94 in the magistrate's court of anuradhapura
which never got off the ground that he was promoted to a special grade
executive post with effect from 1.1.96.
Learned
senior state counsel appearing for the respondents submitted that the board at
its 725th board meeting held
on 2.9.96 considered the question of granting extension of service to its
Page 364.
employees who had reached
the optional age of retirement (55 years) and decided that extension of service
beyond the optional age of retirement would be considered only in the case of
employees who had a satisfactory past record of service and whose services were
indispensable. A copy of the said board decision had been filed along with the
affidavit of the 4th
respondent marked '4r1'. In the case of the petitioner it was submitted
that the board had considered his application for an extension of service after
55 years and refused to accede to his request since a criminal prosecution
relating to forgery was pending in the magistrate's court and that his services
were not indispensable. A copy of the said board decision dated 18.2.97 had
been produced marked 'x' along with a further affidavit of the 4th
respondent dated 28.10.97.
Although
the petitioner has referred to several persons whose services have been
extended after reaching the optional age of retirement in paragraph 25 of the
petition the respondent's position is that two of them, namely titus and weeraratne, had been
granted extensions of service prior to the board decision '4R1' and nandasiri gunaratne and podi appuhamy had not been
granted extensions as averred by the petitioner. That the others have been
granted extensions of service on the basis that their services were
indispensable in accordance with the circular '4R1'.
On a
consideration of the documents filed it appears that there is a discretion
vested in the board of the 1st respondent corporation to grant or to
refuse an extension of service after an officer reaches the optional age of
retirement. The discretion is to be exercised within the framework of the
principles laid down in the board decision marked ‘4R1'. In the instant case
after a consideration of the application for the extension of the services of
the petitioner the board having had regard to the fact that there was a
criminal prosecution pending against the petitioner and on account of the fact
that his services were not indispensable has refused to exercise the discretion
in his favour and intimated the said decision by letter marked 'p2' dated
24.2.97. The said decision, in my view, cannot be said to be arbitrary or
capricious. Accordingly, the petitioner's application is dismissed without
costs.
DHEERARATNE, J.
I agree.
ANANDACOOMARASWAMY, I agree.
Application dismissed.