PEREIRA AND NINE OTHERS
v.
MONETARY BOARD OF THE CENTRAL BANK OF
& TWENTY TWO OTHERS
SUPREME COURT
AMERASINGHE, J.
WADUGODAPITIYA, J. AND
WIJETUNGA, J.
SC APPLICATIONS (F/R) NO. 246/93
16 NOVEMBER 1993 AND 26 JULY 1994
Fundamental Rights Discrimination
Article 12(1) of the Constitution Application of Government Circulars to
Central Bank Power of recruitment Promotion Criteria
Seniority, merit, academic or professional qualifications, general awareness,
capacity to identify a problem and respond to it, analytical skills
Equal treatment Scheme of Recruitment Scheme of Promotion Need to publish
schemes Adoption of ad hoc
criteria Section 10 of the Monetary Law Right to recruit
ancillary staff Burden of proof.
The ten
petitioner and the 11th to 22nd respondents are employees
of the Central Bank of
Held:
(1) There was no general rejection of Public Administration Circulars by the Monetary Board.
(2) Institutions which require ancillary staff must be empowered by provisions such as section 10 of the Monetary Law Act to make recruitment. In the absence of such a provision, a statutory creature, such as the Central Bank, would not have the legal capacity to recruit ancillary staff at all. It is a necessary authority. It does not therefore follow, that the powers of recruitment are unlimited. The Central Bank, like any other institution or person, must comply with the law, including Article 12 of the Constitution, in the formulation of its schemes of promotion and in the selection process.
(3) Institutions, whether public or private are juristic persons created for the achievement of certain objects. Those who are entrusted with the obligation of ensuring that the objects of the institution are achieved, are empowered, as the Board was in this case by section 10 of the Monetary Law Act, to engage the services of ancillary staff to help them in fulfilling their duty.
(4) Those responsible for the achievement of the objects of the institution, particularly a sizeable institution, would classify its ancillary staff according to some method or system founded on intelligible differentia which distinguish persons grouped together from others left out of each group, the attributes which distinguish those grouped together having a rational relation to the object sought to be achieved by the recruitment to each class. At whatever level, it would be expected that persons whose services are engaged in each group or sub group are, in terms of knowledge, skills and aptitude, suited to the circumstances of employment in each class. The search for such persons is ordinarily likely to be most successful if there is an opportunity of choosing from several persons who possess the requisite minimum qualities and qualifications. Eligible persons could offer themselves for consideration only if they have an opportunity of doing so usually by public advertisement or personal notification to eligible persons. Usually, either in the document calling for applications, or in a separate instrument to which a prospective applicant has access, such as a published scheme of recruitment, there would be information with regard to the nature of the duties to be performed, the minimum knowledge, skills, experience expected, and how these qualities and qualifications are to be established. Among other things it will give legitimate grounds for rejecting an unqualified applicant, provided of course, the criteria of eligibility were rational. The announcement of the way in which the eventual selection will be made will also serve as an assurance that the selection process is not a false, outward show, but an honest attempt to select the best person for the post. Unless negotiable and so announced, usually the terms and conditions of employment would also be announced so that, on the one hand, persons who are eligible may apply with a clear understanding of what they may expect if they are selected, and on the other that the contractual obligations are identified and provided for.
(5) Recruitment whether to create a new class or to add to or keep up the number of a class of employees may be either by way of promotion of persons
already in employment in other classes or by the addition of others who are not already serving the institution. There may well be more than one scheme of recruitment even within a class of employment, reflecting the need to balance relevant factors in the recruitment process. Where several factors are to be considered e.g. seniority, merit, academic or professional qualifications, no hard and fast rules can be laid in advance as to what is adequate weightage for this factor or that. It is a matter to be decided having regard to the exigencies of each case.
(6) Eventually the guiding factor is the achievement of the goals of the institution within the framework of the law, and at every stage of the selection process, from the determination of the need for the services of a particular type of officer and numbers in each class, through the determination of the relevant qualifications for eligibility, to the selection of a candidate; those who are entrusted with the task of the achievement of the goals of the institution must necessarily have a discretion because it is they who are responsible and accountable for the success or failure of the institution. In the exercise of their discretion, they have both a right and a duty to discriminate so that the objects of the institution as set out in the instrument of creation may be achieved: Distinctions are regarded as permissible because they are necessary to select those who are necessary and best suited for the performance of specific tasks. On the question of cadre they may decide that different numbers of officers are required for each post. On the question of eligibility they may distinguish between the various qualifications and qualities.
(7) The use of description involves discernment: Selection is not a mere matter of fancy, whim or caprice. Distinctions must not be invidious or biased and there must be no favouritism or partiality. The selected person must be fit and suitable and qualify for appointment in terms of the formulated criteria and in accordance with the prescribed mode of verification of those criteria.
(8) And so, while the burden of proving that Article 12 of the Constitution was violated lies upon a petitioner, the burden of adducing evidence to show that the discrimination made was rational and justifiable lies on those who had the authority to do so, and made the distinctions. Decisions must be supported by evidence. If persons were appointed in terms of a scheme of recruitment the scheme must be produced and explained in terms of the need for the post and the nexus between the work to be performed and the criteria for selection. If the selections were based on an examination the marks must be produced, if on interview on a group basis the marks earned under each criterion of selection must be produced. If at the interview the marking was on an individual basis the marks given by each member of the panel to each candidate under each of the selection criteria should be made available.
(9) Transparency in recruitment proceedings would go a long way in achieving public expectations of equal treatment. In order to ensure that justice is done and seen to be done, it is at least desirable that cadres, the criteria for selection for instance by the publication of marks obtained be made known to those concerned.
(10) Equal treatment is a fundamental right guaranteed by the Constitution. For example those who were both able, by reason of their demonstrable fitness to perform the functions of the post, and willing to serve in accordance with the job description formulated in accordance with the needs of the institution, and in accordance with the terms and conditions of employment, but were not provided with the opportunity of offering their services, are entitled to complain that they were not called upon to apply when other similarly placed persons were called upon to apply. Persons are entitled to complain if they were unfairly disqualified because the scheme of recruitment was not based on intelligible differentia; the attributes prescribed for eligibility, having no rational relation to the object of recruitment; they are entitled to complain if they were invidiously or arbitrarily treated by or in the selection process. The essence of their complaint would be that their right to equality guaranteed by Article 12 of the Constitution has been violated.
Per
Amerasinghe J:
"A scheme of promotion must be justifiable in its formulation and just in its application. The law insists on justice and this, among other things, means that in the exercise of authority or power there must be just conduct. In the exercise of the power of recruitment, just conduct entails the even handed treatment of those who might be affected by the exercise of a power."
(11) Whether in the recruitment of Staff Class Grade officers or others, it is in the interests of the Bank, from the points of view of selecting the best available person, maintaining industrial peace and retaining public confidence to adhere to objective standards.
(12) The non publication of the two modifications to the earlier publicized Schemes of Promotion was unsatisfactory. It was more than unsatisfactory that the selections were made by reference to ad hoc, undisclosed criteria which were not decided upon or at least ratified by the Monetary Board. The way in which the promotions were made by the respondents cannot be understood by examining the announced scheme read with the unannounced amendments made by the Board. How the final selection was made remains a mystery for the marks obtained at the interview were not disclosed. What was there was unintelligibleness and obscurity, a lack of openness and candour, an effective ad hoc undoing of the directions of the Board.
(13) To have treated NSC Grade 4 and the higher grade NSC Grade 5 officers equally overlooked the fact that treating inequals equally was unjust and violative of Article 12 (1) of the Constitution. Grade 5 officers had a legitimate and reasonable expectation that, if they were not to be regarded as superior by reason of their Grade, they would at least be treated as equals of those in the lower grade. Grade 5 officers had come to the top of the non staff class not as flotsam and jetsam of the non staff class.
(14) The Bank had failed to show what criteria were adopted in the past by (a) the Preliminary Interview Committee (b) the Second Interview Committee, and (c) the Board at the third and final interview or that criteria existed at all.
(15) Having set its own standards ad hoc, the interview panel did not adhere to it but had to zig zag its way, arbitrarily, avoiding its own criteria, to be able to appoint certain persons.
(16) If Grade 5 officers had been relegated to a class beyond which they could not ascend, they should not have been called for interviews. They were not aware of this. They were disappointed and perplexed by the selection of the 11th to 22nd respondents who were non staff class grade 4 officers, persons comparatively inferior in rank, in preference to them. The exclusion of Grade 5 officers as a class was not mentioned until the Court proceedings. There was no rational basis for the exclusion of Grade 5 officers.
(17) The selection by a single interview Panel (and not on a final selection by the Monetary Board on second interview) was an ad hoc departure from the Board's own scheme which required three interviews. The duration of the single interview was five minutes and the questioning was haphazard and even sometimes irrelevant. The selections were therefore not made after sufficient and careful consideration but arbitrarily.
(18) Promotion is a reward which after careful consideration, for sufficient reasons is declared to be merited and earned. It is not simply a matter of good fortune.
(10) The criteria for evaluation at the interview were uncertain and vague and not announced.
(20) How seniority for which 25% of the marks were allocated, was assessed has not been established by the Bank and selections were not consistent with seniority. Nor was it clear that merit was taken into account. The supposed application of criteria namely academic/professional qualification, general awareness, capacity to identify a problem and responding to it, analytical skills, could not have been adequately evaluated by the Interview Committee in the time available to it and having regard to the questions asked at the interview.
(21) The selection of the 11th to 22nd respondents in preference to the petitioners was in violation of Article 12(1) of the Constitution and the appointments of the 11th to 22nd respondents to Staff Class Grade 1 were of no force or avail and null and void.
Application for relief for violation of Fundamental Right of equality guaranteed by Article 12(1) of the Constitution.
Faiz Mustapha PC with Dr. Jayampathy Wickremaratne for Petitioners
A. S. M. Perera DSG for 1st 10th Respondents.
Cur adv. vult.
November 1st, 1994
AMERASINGHE,
J.
(1)
EXPLANATION OF THE DELAY IN DISPOSING OF THE MATTER
On 2nd April, 1993, in an application under Article 126 of the Constitution, the ten petitioners, alleged that the fundamental rights guaranteed to them by Article 12(1) of the Constitution were violated. The prayer of the petitioners that they be permitted leave to proceed was granted by this Court on 13th May, 1993. However, in the interests of the on going relationship between the first respondent, as employer, and the petitioners as employees, the Court referred the matter to the Commission for the Elimination of Discrimination and Monitoring of Fundamental Rights to explore the possibility of the resolution of the matter by mediation. By its communication dated 10th August, 1993 the Commission reported a negative outcome. The matter was fixed for argument on 16th November, 1993. On that date a Bench of the Court comprising Amerasinghe, Wadugodapitiya and Wijetunga, JJ., heard the submissions of Mr. Faiz Musthapha, P. C., for the petitioners, and a part of the submissions of Mr. A. S. M. Perera, Deputy Solicitor General, for the respondents, and due to the fact that the calendar of constituted Benches at that time did not enable the Court to resume the hearing during the current term, the resumption of hearing was postponed for 9th February, 1994. However, due to the ill health of my brother Wadugodapitiya J. on that day, the matter could not be taken up and the Court ordered that the matter be
resumed on 13th May, 1994. On that date the matter was listed for hearing before G. P. S. de Silva, CJ. and Kulatunga and Ramanathan JJ. and it was ordered that the resumed hearing before the Judges who had heard a part of the matter should take place on 26th July, 1994. And so the hearing commenced on 16th November, 1993 was concluded only on 26th July, 1994.
(2) THE
COMPLAINT AND THE PARTIES:
The ten petitioners and the 11th to 22nd respondents are employees of the Central Bank of Sri Lanka. The petitioners allege that their fundamental right to equality guaranteed by Article 12(1) of the Constitution was violated by the appointment of the 11th to 22nd respondents as Staff Class Grade 1 Officers.
The first respondent is the Central Bank of Sri Lanka, a body corporate created by the Monetary Law Act No. 58 of 1949. The Chairman and Governor of the Bank is the second respondent. The third and fourth respondents are members of the Board. The fifth respondent is the Deputy Governor of the Bank. The sixth, seventh, eighth and ninth respondents are Executive Directors of the Bank. The tenth respondent is the Director of Establishments of the Bank. The eleventh to the twenty second respondents are persons who were selected in' preference to the ten petitioners. The Attorney-General is named as the twenty third respondent in terms of Rule 44 (1) (b) of the Supreme Court Rules, 1990.
(3) THE
APPLICABILITY OF GOVERNMENT DIRECTIVES
The petitioners maintained that the Monetary Board was bound by the directives of the Government, and that had the guidelines set out in the Public Administration Circulars No. 15/90 dated 9th March, 1990, No. 5/90 (1) dated 25th March, 1990, 15/90 (ii) dated 15th June, 1990 and the communication of the decision of the Cabinet of Ministers on 12th June, 1991 by the Secretary, Ministry of Public Administration, Provincial Councils and Home Affairs dated 20th July, 1991 been followed, they, rather than the 11th 22nd respondents, would have been selected.
In paragraph 22 of his affidavit Mr. Easparanathan, an Executive Director of the Bank who is the sixth respondent in these proceedings, firmly states that "Public Administration Circulars do not apply to the Central Bank in view of the provisions contained in Section 10 of the Monetary Board Act No. 58 of 1949 as amended."
According to P14 (Minutes of meetings the Governor had with the Central Bank Employees Union on 17th July, 1992), when the matter of promotions in accordance with the Public Administration Circular of 9th March, 1990 was raised, the Director of Establishments (the tenth respondent) had explained that it was "difficult" to apply the Circular retrospectively and that "clarifications" had been sought from the Ministry of Public Administration "as to the manner in which the provisions of the Circular should be implemented with retrospective effect and the Ministry of Public Administration has in turn consulted the Attorney General for which no response has been received so far. It was agreed to review the matter."
When the Deputy Governor, the fifth respondent, Mr. Easparanathan, the sixth respondent, and other representatives of the Bank on 2nd September, 1992 (see pp. 3 4 of P11), were requested by the Union's representatives to promote the candidates who were called for interviews on the basis of examinations held in 1989 under the accelerated promotions scheme to Staff Class Grade 1 in terms of Public Administration Circular dated 9th March, 1990, the position of the representatives of the Bank was not that Public Administration Circulars were inapplicable, but that the "Circular was not applicable to the issue in question in view of the fact that it was issued after the appointments were made." The process for those selections, it was pointed out, had been commenced towards the end of 1989, before the Circular was issued. The Deputy Governor is reported to have "added that legal opinion was being obtained in this connection." (Vide P11 at page 4). The Union had referred to the meeting they had on 1st September, 1992 with the Governor of the Bank (the second respondent) on this matter when, according to the minutes recorded and issued by the Bank (P11 page 3), the Governor had said that "the request of the Union may be considered step by step."
And so there was no general rejection of Public Administration Circulars. The problem was merely with regard to the application of a
particular circular in the special circumstances of the case. As a Government institution, surely the Bank might be reasonably expected in the matter of recruitment to be guided by Government directives unless expressly exempted? It is not necessary for the determination of this matter and therefore I make no decision on that matter. I have referred to this because of the fact that it was raised by the petitioners as a matter of importance and dealt with by learned Counsel on both sides.
(4)
LIMITATIONS ON THE POWER OF RECRUITMENT
The learned Deputy Solicitor General submitted that the Bank had statutory authority in terms of section 10 of the Monetary Law to recruit staff and was free to determine what staff it required and the right to select staff according to its discretion in terms of its own schemes of recruitment. The power of recruitment was central to the issues in this case, and since it appears to have been misunderstood, some explanation is necessary.
Institutions which require ancillary staff must be empowered by provisions such as section 10 of the Monetary Law to make recruitments. In the absence of such a provision, a statutory creature, such as the Central Bank, would not have the legal capacity to recruit ancillary staff at all. It is a necessary authority. It does not therefore follow, that the powers of recruitment are unlimited.
The Central Bank, like any other institution or person, must comply with the law, including Article 12 of the Constitution, in the formulation of its schemes of promotion and in the selection process. No institution, no person, natural or juristic is above the law. Section 10 of the Monetary Law creates no exception.
Institutions, whether public or private, are juristic persons created for the achievement of certain objects. Since they are incapable of functioning unaided by human intervention, certain natural persons are entrusted with the obligation of ensuring that the objects of the institution are achieved. As it often happens, especially where the objects of the institution are complex or numerous or many sided, as in the case of the Bank, it would be impossible for the few persons
entrusted with the task of achieving the institution's objects, such as the members of the Monetary Board in this case, to do all the work themselves. The assistance of other people may be necessary. And so, those who are entrusted with the obligation of ensuring that the objects of the institution are achieved, are empowered, as the Board was in this case by section 10 of the Monetary Law Act, to engage the services of ancillary staff to help them in fulfilling their duty. As the schemes of recruitment of the Bank (P1 and P4) show, various sorts of supportive staff, ranging from persons designated by the bank in P1 as "Minor Employees" and in P4 as "Labourers", to Heads of Departments in the Staff Class Grades, were required by the Bank.
What sorts of supportive staff are necessary, and the required numbers of each kind, are matters to be decided by the persons entrusted with the obligation of ensuring that the objects of the institution are achieved, for it is they who must plan a course of action for the achievement of the objects of the institution and be held accountable for its success or failure.
The work of ancillary staff may range from the performance of simple tasks, requiring little or no special knowledge or skills, to the services of persons whose esoteric knowledge and exceptional skills are appropriate to an inner circle of disciplines. Those responsible for the achievement of the objects of the institution, particularly a sizable institution, would classify its ancillary staff according to some method or system founded on intelligible differentia which distinguish persons grouped together from others left out of each group, the attributes which distinguish those grouped together having a rational relation to the object sought to be achieved by the recruitment to each class. At whatever level, it would be expected that persons whose services are engaged in each group or sub group are, in terms of knowledge, skills and aptitude, suited to the circumstances of employment in each class,
The immediate object of obtaining assistance in the performance of certain functions with the view to the achievement of the ultimate purpose of the exercise of the power of employment, namely the achievement of the goals of the institution, is most likely to be achieved by choosing the best available person.
The search for such a person is ordinarily likely to be most successful if there is an opportunity of choosing from several persons who possess the requisite minimum qualities and qualifications.
Eligible persons could offer themselves for consideration only if they have an opportunity of doing so. Such an opportunity would usually be afforded by way of public advertisement or personal notification to eligible persons. In the case before us, eligible persons were by individual letters addressed to them, invited to present themselves at an interview.
Usually, either in the document calling for applications, or in a separate instrument to which a prospective applicant has access, such as a published scheme of recruitment, there would be information with regard to the nature of the duties to be performed, the minimum knowledge, skills, experience expected, and how these qualities and qualifications are to be established (e.g. a degree or diploma and/or work in a certain capacity and/or at a certain level of performance and/or for a minimum period of time and/or performance at an interview and/or at a written examination). The making known of these matters serve many purposes: Among other things, it will indicate whether a person is qualified and dissuade him from applying if he is not, and at the same time give legitimate grounds for rejecting an unqualified applicant, provided of course, the criteria of eligibility were rational. It will also serve to give notice to applicants as to what evidence of fitness they would need to adduce and what preparations they may need to make in proving their fitness. This may include the obtaining of certificates and/or the undertaking of studies, depending on the manner in which fitness is to be established. The announcement of the way in which the eventual selection will be made will also serve as an assurance that the selection process is not a false, outward show, but an honest attempt to select the best person for the post, for those who wish to apply might be reasonably expected to do so only if they feel confident that there is a genuine search for the fittest person and not a masquerade resulting in a waste of time and effort. It is also a constraint on those who have been empowered to employ ancillary staff to act in good faith and effectively in the discharge of their obligations towards the advancement of the objects of the institution
whose destinies have been placed in their hands by selecting the best available person. Unless negotiable and so announced, usually the terms and conditions of employment would also be announced so that, on the one hand, persons who are eligible may apply with a clear understanding of what they may expect if they are selected, and on the other that the contractual obligations of the institution are identified and provided for.
Recruitment whether to create a new class or to add to or keep up the number of a class of employees may be either by way of promotion of persons already in employment in other classes or by the addition of others who are not already serving the institution. No doubt, in the formulation of schemes of recruitment, due regard might be paid to various factors: For instance, the desirability of the injection of "new blood" to increase or re invigorate the services of a class might need to be weighed against the value of the services of those who had already been occupied in the study and/or practice of the affairs of the institution as employees and were therefore experienced hands. As between serving officers, it might be necessary to decide whether one should be selected in preference to another as being senior by reason of earlier entrance to the service of the institution or earlier appointment to a Grade or post, and/or on account of the person concerned deserving well because of the excellence of his past performance and/or the worth the man's qualities and/or academic and professional qualifications. In order to encourage serving officers to better equip themselves, recognition may need to be given for the acquisition of additional skills and/or academic and/or professional qualifications while in service. There may well be more than one scheme of recruitment even within a class of employment, reflecting the need to balance relevant factors in the recruitment process. Where several factors are to be considered, e.g. seniority, merit, academic or professional qualifications, no hard and fast rules can be laid down in advance as to what is adequate weightage for this factor or that. It is a matter to be decided having regard to the exigencies of each case.
Eventually the guiding factor is the achievement of the goals of the institution within the framework of the law, and at every stage of the selection process, from the determination of the need for the
services of a particular type of officer and numbers in each class, through the determination of 'the relevant qualifications for eligibility, to the selection of a candidate, those who are entrusted with the task of the achievement of the goals of the institution must necessarily have a discretion, for, as I have said before, and say again for the sake of emphasis, it is they who are responsible and accountable for the success or failure of the institution.
In the exercise of their discretion, they have both a right and duty to discriminate so that the objects of the institution as set out in the instrument of creation may be achieved: Distinctions are regarded as permissible because they are necessary to enable those burdened with the responsibility of achieving the objects of the institution to select those who are necessary and best suited for the performance of specific tasks. On the question of cadre, they may decide that different numbers of officers are required for each post, depending on the type of work required to be performed, qualified by relevant factors such as the financial resources of the institution to engage the services of optimum numbers. On the question of eligibility, they may distinguish between the various qualifications and qualities that evidence the competence, aptitude and suitability of a person to do what he is expected to do. They must be related to the purpose or purposes of recruitment. As between persons satisfying the minimum prescribed conditions of eligibility, they may select only the best available.
The use of discretion involves discernment: Selection is not a mere
matter of fancy, whim or caprice. Distinctions must not be invidious or biased:
Persons who are excluded in a scheme of recruitment or in the selection process
must not be excluded on account of their being looked upon with an evil eye.
Persons who are selected should not be chosen on account of favouritism or
partiality. A justifiable selection cannot be one that is accidental or
fortuitous or directed ad hoc to the
preference of a certain person, arbitrarily, dependent on the absolute exercise
of the will and pleasure or mere opinion or humour of those who make the
selections. The selected person must be fit and suitable and qualify for
appointment in terms of the formulated criteria and in accordance with the
prescribed mode of verification of those criteria.
And so, while the burden of proving that Article 12 of the Constitution was violated lies upon a petitioner, the burden of adducing evidence to show that the discrimination made was rational and justifiable lies on those who had the authority to do so, and made the distinctions; for if distinctions were drawn, it is they who can best explain why they were made in the discharge of their duties and in the exercise of their powers. If challenged in proceedings of this nature, they should account for their decisions and unfold the reasons for their decisions which must be plain and intelligible and understandable. Decisions must be supported by evidence. For example, if it is said that persons were appointed in terms of a scheme of recruitment, the scheme should be produced and explained in terms of the need for the post and the nexus between the work to be performed and the criteria for selection. If it is said that selections were made on the basis of an examination, the marks earned by each candidate should be produced. If persons were selected on the basis of an interview, there should be evidence of how many marks were earned by each candidate under each criterion of selection, if the marking was on a group basis; or if marking was on an individual basis, the marks given by each member of the panel to each candidate under each of the selection criteria should be made available.
From the point of view of the satisfactory performance of specific tasks, the implications of the failure of those in charge to discharge their responsibilities of ensuring the selection of the best person for a required task is obvious enough. But the matter does not end there. The failure to make justifiable selections may also frustrate the objects of the institution in other ways.
The achievement of the goals of an institution would partly depend on the existence of industrial peace, and contentment would, in a significant measure, depend on satisfaction that the employer was fair. As far as the Bank was concerned, the situation, it seems, was far from well. The minutes of the meeting held on 17th July between the Governor and Employees Union (P14) show that there was expressed dissatisfaction with regard to the failure of the Bank to publicize its schemes of recruitment, the Union alleging that promotions had been made "according to the whims and fancies of
the management" and that there had been a violation of the fundamental rights of employees in making certain promotions. The Governor had agreed that "there should be some transparency in Confidential Report markings" and that "the Confidential Report marking scheme should be reviewed" and that "the percentage system of marking employees should be done away with." The Governor had given the assurance that improvements of the schemes would take place "wherever possible" and that the "Union will be consulted before their implementation."
There are also civic responsibilities to be considered. For instance, if society is to be purged of and freed from the related evils of corruption, nepotism and favouritism, public institutions embarking on executive or administrative action in terms of Article 126(1) of the Constitution must be clear of inequalities and/or unevenness. Transparency in recruitment proceedings would go a long way in achieving public expectations of equal treatment. The selection of a person must be viewed as a serious matter requiring a thoroughgoing consideration of the need for the services of an officer, and a clear formulation of both the basic qualities and qualifications necessary to perform the services, and the way in which such qualities and qualifications are to be established. In order to ensure that justice is done and seen to be done, it is at least desirable that cadres, the criteria for selection, the method of selection and the eventual basis for selection for instance by the publication of marks obtained be made known to those concerned. Ideally, the whole process from the determination of the cadre to selection must be easily recognized and seen through, if not obvious. A selection process veiled in secrecy and not openly avowed and expressed is at least open to the suspicion of the existence of something evil or wrong. It is of a questionable character.
There is much more than a question of poor management; there is much more than a misuse of the power of recruitment and a disregard of civic responsibilities when schemes of recruitment or the process of selection are unconstitutional. Equal treatment is a fundamental right guaranteed by the Constitution. For instance, and these are only some examples, those who were both able,'by reason of their demonstrable fitness to perform the functions of the post, and
willing to serve in accordance with the job description formulated in accordance with the needs of the institution, and in accordance with the terms and conditions of employment, but were not provided with the opportunity of offering their services, are entitled to complain that they were not called upon to apply when other, similarly placed persons were called upon to apply; persons are entitled to complain if they were unfairly disqualified because the scheme of recruitment was not based on intelligible differentia, the attributes prescribed for eligibility, having no rational relation to the object of recruitment; they are entitled to complain if they were invidiously or arbitrarily treated by or in the selection process. The essence of their complaint would be that their right to equality guaranteed by Article 12(1) of the Constitution has been violated. Article 12(1) of the Constitution provides that "All persons are equal before the law and are entitled to the equal protection of the law."
For the reasons I have explained, while recognizing the need for those entrusted with the management of an institution like the Central Bank to have the power of recruitment of ancillary staff and a discretion in the matter of selection, 1 am unable to agree with the suggestion of the learned Deputy Solicitor General that the power is absolute, uncontrolled and unlimited: The liberty or power must be exercised within the limits allowed by law. A scheme of promotion must be justifiable in its formulation and just in its application. The law insists on justice and this, among other things, means that in the exercise of authority or power there must be just conduct. In the exercise of the power of recruitment, just conduct entails the evenhanded treatment of those who might be affeted by the exercise of a power.
The learned Deputy Solicitor General submitted that it was "not in the best interests of the Bank" to adopt objective criteria in the selection of Staff Class Grade Officers. The selection of such officers should, he submitted, be left in the hands of senior officers of the Bank who, as "responsible people", could be trusted in evolving their own standards of selection and in choosing the best persons. I am unable to agree with the learned Deputy Solicitor General. Whether in the recruitment of Staff Class Grade Officers or others, it is in the
interests of the Bank, from the points of view of selecting the best available person, maintaining industrial peace and retaining public confidence to adhere to objective standards. Otherwise, the selection process is likely to degenerate into something akin to a lottery rather than being, as it should be, the exercise of sound judgment within the bounds of rational and justifiable criteria.
(5) CADRE AND
METHODS OF SUPPLY WERE UNCERTAIN
The first step in a recruitment process is the decision that a certain number of persons are necessary to perform certain specific tasks. According to the learned Deputy Solicitor General, it had been decided that eighty four officers were required in the lowest, Staff Grade class, namely, Staff Class Grade 1. It had also, he said, been decided by the Bank that the selection for those posts should take place through two schemes: Twenty six persons would be chosen through a scheme of recruitment applicable to officers he described as "rankers", and fifty eight in terms of a "competitive accelerated scheme."
Was this so?
In paragraph II of his affidavit, Executive Director Easparanathan states that 26 vacancies were to be filled by "Non Staff Class Officers who are promoted under the ordinary scheme of promotion ... the balance 58 vacancies were to be filled by those internal candidates who qualify under the accelerated scheme of promotions and externally qualified candidates."
The petitioners maintained that there were three schemes to fill 93 posts: 55 to be filled by "Direct recruitment", 12 in terms of the "Accelerated promotional Scheme" and 26 by "In Service Promotions."
Neither the cadre of Staff Class Grade I officers nor the number of persons to be recruited through each of the several schemes can be ascertained from the Scheme of Recruitment P4 as amended by R1 and R2.
ENDED TIME7/20/01 2:25 PM
(6) THE "RANKERS" "IN SERVICE"
"ORDINARY" SCHEME ONLY RELEVANT IN THIS CASE
Whether there were three types of recruitment, namely, (a) Direct recruitment, (b) accelerated promotion and (c) "in service" or 'ordinary' promotions, as suggested by the petitioners, or two as the learned Deputy Solicitor General submitted, needs no further consideration: It was acknowledged on all hands that the complaint in the matter before us related only to the so called "rankers" scheme the "in service" "ordinary" promotions to twenty six posts. I shall assume that the twenty six recruitments of "rankers" were based on a demonstrable need determined by the Bank for good, though undisclosed, reasons. This is of importance to the order I make with regard to the filling of vacancies, for I so do holding the bank as being committed to its decision on the question of cadre.
(7) WHICH"RANKERS" "IN SERVICE" "ORDINARY"
–
SCHEME?
There was one advertised scheme dated 15th February 1973 (P4) and another advertised scheme dated 03 February 1993 (P1).
The petitioners submit that, since the Monetary Board on 12th January 1993 (Vide P1 at page 11, General, 1) said that, "where the existing promotional schemes are changed, the effective date under the revised scheme will be 01/01/93", the selections announced on 15th March, 1993 (P8), which they challenge in these proceedings, were, and ought to have been in terms of P1, since the existing promotional scheme set out in P4 as amended was changed by P1.
On the other hand, the respondents say that the selections in question, although announced on 15th March, 1993, were made in terms of P4. Mr. Easparanathan, an Executive Director of the Bank, in paragraph 6 of his affidavit, explains that the selection of officers in the recruitment in question was based on P4 as amended by the decisions of the Monetary Board dated 10th January 1989 and 16th January 1990, since the selection process in question was commenced in 1992: The eligibility of candidates he says had been determined by the Establishments Committee on 30th July, 1992 and
Page 170
that their recommendations had been approved by the Monetary Board on 4th September, 1992; letters inviting eligible candidates for interview had been issued on 28th December, 1992. The interviews were held prior to the date on which the new scheme was approved by the Board, namely, 12th January 1993, although the selections were announced after that date.
Although the petitioners challenge the validity of the promotion of the eleventh to the twenty second respondents in preference to them, assuming that the effective scheme of recruitment was set out in P1, and indicating infirmities in the scheme set out in P1 and its applicability and application, they state. that even if the applicable scheme was that set out in P4 as amended by R1 and R2, it was irrational, and in any event not adhered to, and that the selections were arbitrary and violative of Article 12(1) of the Constitution. It is sufficient for me to dispose of this matter on the basis of the respondents' position that the recruitments were in terms of P4 as amended, although in view of the Bank's announcement that the effective date .of operation of P1 was 1st January 1993, in the absence of the explanation made by the Bank in these proceedings, they had, at the time of filling the petition in the matter before us, a very good reason to suppose that appointments made on and after that date were governed by P1.
(8) THE RELEVANT PROVISIONS OF THE APPLICABLE SCHEME
Document P4 (as amended), which the respondents depend upon, sets out "criteria" in the "Schemes of Promotion in the Central Bank" and the relevant salary scales at various levels.
Before we consider the amendments brought about by R1 dated 10th January, 1989, and R2 dated 16th January 1990, let us see what P4 contained in its original form with regard to the promotion of Non-Staff Class Officers to Staff Class Grade 1. It is as follows:
(10) NON STAFF
CLASS GRADE 4 TO STAFF CLASS GRADE 1
Criteria (a) In the case of Clerks and Cashiers after a minimum of four years service in the Grade, and on receipt of a
consolidated salary of not less than Rs. 700/ if vacancies exist in Staff Class Grade 1.
(b) In the case of stenographers and typists (provided they acquire a level of competence in shorthand adequate for the requirements of the Bank) in the Non-Staff Class Grade 4, the service qualification for consideration for promotion to Staff Class Grade 1 be of an excellent record of 4 years' service in Non Staff Class Grade 4. On promotion to Staff Class Grade 1 they may be categorized as "Personal Secretaries".
(c) Officers who had been recruited to the Non Staff Class as stenographers, typists, accounting machine operators, comptometer machine operators and other machine operators but who have with Bank approval ceased to perform such functions for a number of years and who have since been performing supervisory or senior clerical or senior cashier
functions, will, on completion of 6 years' very good service in the Staff Assistants Grade, be eligible for consideration for appointment to the Staff Class, subject to the usual requirements of suitability.
Salary scales : ......
Accelerated
Promotion from Non Staff to Staff Class
(1) Promotions to Staff Class on the basis of high academic qualifications (as distinct from promotions in the normal course on minimum service qualifications in the Staff Assistants' Grade (viz. a minimum of 4 years)).
(a) Promotions to Staff Class would not be automatically considered on the acquisition of a post graduate qualification or of a first degree with at least a second lower even where the University is recognized and the field of study is useful to the Bank.
(b) All such cases would be considered along with outside recruits.
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172
(c) Candidates who do
not have a good first degree would still be eligible for consideration if they
had in addition to an ordinary pass degree in the special field of study
useful to the Bank, a postgraduate degree from a University recognized by the
Bank and in a field of study deemed to be useful to the Bank.
(d) All candidates
will be interviewed by the Board before promotion to Staff Class can be
considered.
(2) Non Staff Class Officers with a Degree in
a special subject, useful to the Bank or the A.I.B. (London) qualification or
the Final Examination conducted by the Bankers' Training Institute (Ceylon) and
who had at least 10 years' experience are eligible for consideration for Staff
Class appointments with outside candidates.
(3) (i) Officers in the Non Staff Class who have
completed 7 years' service in the Bank, and who pass the Final Examination of
A.I.B. or B.T.I. with distinctions in two subjects, with an excellent record of
service during the previous five years; and
(ii) Officers in the Non Staff Class who
have completed 7 years' service in the Bank and who obtain a Degree in a
special subject useful to the Bank, with a very good record of service during
the previous five years;
will be eligible for
consideration for Staff Class Grade 1 appointment in competition with outside
candidates.
(4) Non Staff
Class Officers who obtain a Second Class lower degree or a higher degree in
subjects useful to the Bank while in the service of the Bank, would be eligible
for consideration by the Board (independently of outside recruitment) for
appointment to the Staff Class after Five years' good Service in the Bank.
(9) THE AMENDMENT OF THE SCHEME IN P4 BY R1
According to document R1, dated 10.01.1989, on the
question of "recruitment of officers to Staff Class I (on probation) and
promotion to Staff Class Grade 1", the Monetary Board at meeting No. 1/89
"approved of the following":
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173
(a) the requirements
pertaining to the recruitment of officers to Staff Class Grade 1 viz.,
(i) Special Degree with First or Second
Class (Upper Division) Honours from a recognized University in either
Economics, Commerce, Business Administration, Accountancy, Mathematics,
Statistics, Computer Science, Engineering, Sociology, Political Science, Law,
Agriculture, Geography, History, Physics or Chemistry.
OR
(ii) General Degree with First or Second Class
(Upper Division) Honours from a recognized University with Economics, Commerce,
Accountancy, Mathematics, Statistics, Computer Science, Sociology, Political
Science, Geography, History, Physics or Chemistry.
OR
(iii) A Post graduate Degree from a
recognized University in any of the subjects referred to at (i) above;
OR
(v) Graduates with progressively responsible
experience of not less than five years in an executive post in a Commercial
Bank;
OR
(vi) All parts of the Examination of the
Chartered Institute of Cost and Management Accountants;
OR
(vii) All parts of the Examination of the
Institute of Chartered Accountants.
(b) the procedure relating to promotions of
Staff Assistants to Staff Class Grade 1 is set out below.
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174
(i) The Establishments Committee to take
into consideration the record of service, work, conduct, attendance and
punctuality of officers who have completed 4 years confirmed service in Non Staff
Class Grade 4 and of officers in Non Staff Class Grade 5 and to recommend
candidates for interview by a Preliminary Interview Committee nominated by the
Governor for the purpose.
(ii) A Second Interview Committee nominated by
the Governor interviewing those recommended by the Preliminary Interview
Committee and recommend candidates for interview by the Monetary Board.
(iii) The Monetary Board to interview those
recommended by the Second Interview Committee and selecting those who are
considered fit for promotion to Staff Class.
(10) THE AMENDMENT OF THE SCHEME IN P4 AND R1 BY R2
According to R2,
dated 16.01.1990, the Monetary Board at its meeting 2/90,
"In modification
of its decision taken at Meeting No. 1/89 of 1989.01.10 as set out at Paragraph
(b) (i) of Item 6, approval of the Establishments Committee taking into
consideration the record of service, work, conduct, attendance and punctuality
of officers who have completed 6 years confirmed service in Non Staff
Class Grade 4 and Non Staff Class Grade 5, and to recommend candidates
for interview by a Preliminary Interview Committee nominated by the Governor
for the purpose."
(11) AMENDMENTS IN R1 AND R2 NOT PUBLICIZED
Although P4 was said
by the Respondents to be the applicable scheme, R1 and R2 which significantly
modified P4, were not publicized. They were filed in these proceedings by the
respondents and stamped as "Confidential" documents on
"Minute" papers of the Monetary Board communicating Board decisions
to the Director of Establishments. On the other hand P4 and P1 were circulated
to
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175
Heads of Departments
and Regional Managers who were directed to bring the contents of P4 and P1 to
the notice of all employees in their respective departments or regional
offices.
If a Scheme of
Recruitment is publicized, it is to be expected as a matter of reasonableness
and fairness that the modification of such a scheme should also be publicized.
Otherwise the known scheme would be misleading. The respondents failed to
explain why R1 and R2 were not publicized, and exposed the Bank to the
criticism that the modified recruitment procedures were kept secret because
they were irrational, ad hoc and
arbitrary, resulting in the disqualification and exclusion of the petitioners
unfairly in contravention of their constitutional right to equality of
treatment in the selection process. The only response of the learned Deputy
Solicitor General was that it would have been "fairer" to have
publicized the scheme of recruitment, but, he submitted, "that was not the
test". Admittedly, there are other ways also for judging fairness, but
publicity would, among other things, have enabled the petitioners and anyone
concerned, to see for themselves how justifiable was the modified scheme and
how just was its application.
(12) PROMOTIONS NOT EXPLICABLE BY REFERENCE TO P4, R1 AND R2 ALONE
For the reasons I
have given, it was unsatisfactory that the modifications of P4 by R1 and R2 by
the Board were not publicized. It is more than unsatisfactory that the
selections were made by reference to ad
hoc, undisclosed, criteria which were not decided upon or at least ratified
by the Board. It is the Monetary Board that is statutorily empowered to employ
ancillary staff. If the schemes of recruitment determined by the Board required
modification in the light of discussions the representatives of the Bank had
with the Unions, or in the opinion of the Governor, or other officers of the
Bank, the modifications should have been made, or at least ratified, by the
Board which formulated the scheme in P4 in pursuance of its power of recruitment.
The Board did not, and could not, abdicate its responsibility, and there was no
authority and no justification for others to usurp its functions.
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176
Even at this stage
one can only understand the recruitment process in question with difficulty and
without special accuracy, albeit sufficiently, for the purposes of determining
this matter. The way in which the promotions were made by the respondents
cannot be understood by merely examining the announced scheme in P4 read with
the unannounced amendments made by the Board in R1 and R2. One may only have a
sufficient understanding of the selection process by additionally considering
P7, a letter dated 3rd March 1993 addressed by the petitioners to
the Bank and P15 the reply dated 12th April 1993; the minutes of
meetings between the representatives of the Unions and the Bank; the affidavit
of the Executive Director of the Bank, the petition and affidavits of the
petitioners; the written submissions of the Attorney at Law on
behalf of the 1st to 10th respondents; the written
submissions of the Attorney at Law for the petitioners; the summary
of submissions made on behalf of the petitioners; and the oral submissions of
Counsel for the petitioners and respondents. How the final selection was made
remains a mystery, for the marks obtained at the interview were not disclosed
by the Bank which has chosen to make a secret of the justification for its
preference of the 11th to 22nd respondents to the
petitioners. There was certainly a lack of what the Governor, at his meeting
with the Unions on 17th July 1992 (P14) felicitously described as
'transparency'. What we have instead is unintelligibleness and obscurity, a
lack of openness and candour, an effective ad
hoc undoing of the directions of the Board, and the thwarting and
frustration of the expressed good intentions of the Governor on the question of
transparency.
(10) P4 DID NOT REFER TO NON STAFF GRADE OFFICERS IN GRADE 5
While paragraph 10 of
P4 sets out the "criteria" for the promotion of Non Staff Class
Officers in Grade 4 to Staff Class Grade 1, P4 makes no mention at all of
criteria for the promotion of Non Staff Class Officers in the higher
grade, the highest Grade in the Non Staff Class, namely Non Staff
Class (NSC) Grade 5. In paragraph 17 of his affidavit the Executive Director
admits that all the petitioners, and these include the NSC Grade 5 Officers,
"were summoned to present
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177
themselves for an
interview." In paragraph 5 of his affidavit the Executive Director refers
to "letters inviting the eligible candidates for interviews" which
had been issued on 28th December 1992. Four of the petitioners
G. F L. Perera. K. M. P. Wijekoon, R. S. Liyanage and T. H. Wickramasinghe were
NSC Grade 5 officers. (See paragraph 2 of the affidavit of the first and tenth
petitioners dated 2nd April 1993). Executive Director Easparanathan,
in paragraph 3 of his affidavit dated 16th August 1993, admits that
four of the petitioners were in NSC Grade 5. There is no denial of the fact
that G. F. L. Perera, Wijekoon, Liyanage and Wickremasinghe were interviewed
and that they were the NSC Grade 5 Officers referred to by the Executive
Director.
If, as the
respondents maintain, P4 was the applicable scheme which sets out 'criteria',
then by reference to what criteria were the NSC Grade 5 officers summoned for
interview when P4 does not mention NSC Grade 5 Officers at all?
(14) POSSIBLY NSC GRADE 5 OFFICERS WERE ELIGIBLE IN TERMS OF THE
AMENDMENT OF P4 BY R1 AND R2, BUT WHO WERE `STAFF ASSISTANTS'?
Although P4 does not
refer to officers in NSC Grade 5, paragraph (b) of R1 provides that in the
matter of the promotion of "Staff Assistants" to Staff Class
Grade 1, the Establishments Committee should recommend for interview non staff
grade officers in Grade 4 as well as Grade 5 who had completed four years of
confirmed service, taking into consideration their record of service, work,
conduct, attendance and punctuality. R2 modified that procedure to the extent
of stipulating that NSC Grade 4 and 5 officers should have completed six,
instead of four years of confirmed service, recognizing again the eligibility
of NSC Grade 5 officers for promotion to Staff Class Grade 1.
There is no mention
of "Staff Assistants" as a separate class in the hierarchical scheme
set out in P4. However, they did exist at the time P4 was formulated and
continued to exist at the time of the promotions in question. P4 in paragraph
10(c) refers to the eligibility
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178
of persons in the
"Staff Assistants Grade" (sic.) for promotion to Staff Class Grade 1.
Reference is made to the designation and appointment of Staff Assistants at a
meeting held on 24th October 1992 between representatives of the
Trade Unions and the Governor, Deputy Governor, Executive Director
Easparanathan, and others representing the Bank. (See P10).
Who were they? No
decision of the Monetary Board was submitted with regard to the mode of
appointment of Staff Assistants. In terms of paragraph 10(c), Non Staff
Class Officers who had been recruited as stenographers, typists, accounting
machine operators, comptometer machine operators and other machine operators
but who, with the approval of the Bank, had ceased to perform such functions
for a number of years and who had since been performing "supervisory or
senior clerical or senior cashier functions" would "on completion of
6 years very good service in the Staff Assistants Grade, be eligible for
consideration for appointment to the Staff Class, subject to the usual
requirements of suitability." It would seem that at one time Staff Assistants
would have been performing either supervisory
functions or senior clerical or senior cashier functions.
"Staff
Assistants" were, in terms of a discussion between the employee Unions and
representatives of the Bank (See P10), only non Staff Grade IV officers
entrusted with supervisory, as
distinguished from clerical functions, selected on the basis of 50% seniority
and 50% performance. The Selection criteria agreed to at an earlier meeting
between the representatives of the Union and the Deputy Governor, Executive
Director Easparanathan and other representatives of the Bank on 2nd
September 1992 (See P11) had been 50% for length of service in the Grade, 40%
for performance, 10% for educational qualifications (i.e., Degree, BTI, AIB).
The Governor removed the 10% weightage for educational qualifications. The
removal of the 10%, it is explained in the Minutes, was to obviate a duplicated
consideration of educational qualifications, which had already been taken into
account in earlier promotions.
The position of "Staff
Assistant" conferred advantages in the matter of promotion to the Staff
Class Grade I. Paragraph 10 (C) of P4
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179
made "completion
of 6 years very good service in the Staff Class Grade" (meaning Staff
Assistant, and recognizing, perhaps, that they were performing staff grade
functions?) as a criterion of eligibility for promotion from Non Staff
Class Grade 4 to Staff Class Grade 1. It had been agreed at the meeting on 24
October (P10) that in the matter of promotions of NSC Grade 4 officers to Staff
Class Grade 1, "in the computation of marks for seniority additional marks
for seniority (one point per year) will be given to the experience gained in
the post of Staff Assistant."
Presumably, since all
persons summoned for interview in terms of the promotional scheme P4 as
modified by R1 and R2 were deemed to be "eligible", as the Executive
Director says in his affidavit, in accordance with the criteria laid down by
the Monetary Board in R1 (b) and R2, they ought in the first place to have been
"Staff Assistants". Otherwise P4 as modified by R1 and R2 which
related to the promotion of "Staff Assistants" to Staff Class
Grade 1 Staff Grade serving in either Grade 4 or 5 of the non Staff Class
(see especially R1(b) has no relevance at all to the recruitments in question.
The first, second,
fifth and seventh petitioners were NSC Grade 5 officers, whereas the 11th
to 22nd respondents were in NSC Grade 4. The view expressed by the
Union that NSC Grade 5 officers should be separately treated and promoted was
rejected by the Bank's representatives. Non Staff Class Grade 4 and 5
officers were to be considered together. The view of the Bank, expressed by the
Deputy Governor at the interview with the Union on 2nd September
1992, was that the promotion of NSC Grade V officers could be considered under
"existing criteria", meaning presumably the criteria set out in R1
and R2. Assuming that the 11th 22nd respondents
were 'Staff Assistants', it does not follow that all Staff Assistants were in
the same Grade. The reference to "Staff Assistants Grade" in
paragraph 10(c) of P4 was a misnomer. It was not a "Grade" but a work
related designation of persons who
may have belonged to either Grade 4 of 5 of the Bank's classification of
employees. Persons in Grade 5 were officers promoted from Grade 4 if they had
completed 25 years of service in the' Bank with at least 10 years of "very
good" service in Grade 4. (See paragraph 7 of Mr. Easparanathan's
affidavit). Four of the petitioners were in NSC Grade 5 while the other
petitioners and
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180
each of the 11th
22nd respondents were in NSC Grade 4. The Minutes of the
meeting between the Governor and other representatives of the Bank and the
Trade Unions on 24 October 1992 (P10) confirms the fact that NSC Grade 4
officers may have been designated as "Staff Assistants."
In my view a
procedure in terms of which all Staff Assistants were to be judged by the same
criteria was flawed, for NSC Grade 5 officers were, in terms of the Bank's
hierarchical classification of Non-Staff Class officers, as explained by the
Executive Director in paragraph 7 of his affidavit, superior in rank to NSC
Grade 4 officers; and, therefore, to have treated NSC Grade 4 and NSC Grade 5
officers equally overlooked the fact that treating unequals equally was unjust
and violative of Article 12(1) of the Constitution.
(15) WAS BELONGING TO NSC GRADE 5 A DISQUALIFICATION ?
Strange as it may
seem, the position of the respondents was that NSC Grade 5 officers were not
superior, but for the purposes of promotion, deemed to be inferior to NSC Grade
4 officers.
The learned Deputy
Solicitor General said that NSC Grade 5 officers were persons who were
beyond the pale; they were placed in NSC Grade 5, which was in terms of
gradation admittedly higher than NSC Grade 4, but simply because they were
people who could no longer "develop and progress". They were, he
suggested, permitted as a matter of tolerance to vegetate at the top of the non staff
class level, physically present, but leading more or less, a useless life as
far as the Bank was concerned.
Learned Counsel for
the petitioners responded that "if they are not eligible to be in service,
their services should be terminated."
I do not agree with
learned Counsel for the petitioners. The services of the NSC Grade 5 officers
may have been adequate to perform the services they were called upon to perform
in NSC Grade 5. There is no dispute with regard to that; and therefore the
conclusion that if they were unfit, their services should have been terminated
is unwarranted. The question is with regard to their
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181
eligibility to
perform other functions at a higher level, and why G. F L. Perera, Wijekoon,
Liyanage and Wickramasinghe who were NSC Grade 5 officers were
summoned for interview as being, as the Executive Director says,
"eligible", if they did not deserve to be considered as fit and
proper or desirable or suitable to be chosen for service in the next higher
group, namely, the staff class? The fact that, having regard to the available
vacancies, only the best of those who were eligible were selected, is another
matter.
That in the selection
process certain individuals who happened to be in a higher grade were found for
good and established reasons to be less suitable is understandable, assuming
that it was proper to treat them alike in determining eligibility. But there
must be rational criteria for differentiating between NSC Grade 5 officers as a class and other eligible
candidates. By reference to what criteria were they excluded from promotion as
a class? There is nothing in the schemes of promotion P4 or R1 and R2
indicating that NSC Grade 5 officers as such were unsuitable. There is nothing
in the reply of the Bank R3 dated 12th April 1993, in response to the protest of the
petitioners P7 dated 3rd March 1993, indicating that NSC Grade 5
officers were to be shut out of consideration. Were they informed that although
they had been summoned merely because they had crossed the threshold of
eligibility as determined by the Establishments Committee and approved by the
Board, there was no hope of success? They were not. On the other hand, at the
interview on 2nd September 1992 (P11), when the Union suggested that
NSC Grade 5 be scrapped and that the officers in NSC Grade 5 be promoted to
Staff Class Grade 1, the Deputy Governor had said that "the request
cannot be acceded to and promotion of the above officers could be considered
under existing criteria". At the interview on 24th October 1992
(P10) it was recognized that "All NSC officers who have completed 4 years
in NSC Grade IV and officers in NSC Grade V will be eligible for consideration
for promotion to Staff Class Grade 1 on the decision of a Committee or by an
interview." Grade 5 officers therefore had a legitimate and reasonable
expectation that, if they were not to be regarded as superior by reason of
their Grade, they would at least be treated as the equals of those in the lower
Grade.
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182
As we shall see, those who were recommended by the
Establishments Committee for interview and accepted as 'eligible' by the Board,
and these included the Grade 5 officers, were selected because they achieved a
very high standard of excellence at the five annual evaluations preceding the
date on which their eligibility was determined. They were summoned because they
were, as we shall see, rated by the Establishments Committee as
"Outstanding" officers.
In paragraph 7 of his
affidavit, the Executive Director of the Bank states that "the criteria
for promotion from Non Staff Class Grade 4 to Non Staff Grade 5 is
25 years of service in the Bank with at least 10 years of very good service in
Non Staff Grade 4. The promotions are effected subject to availability of
cadre vacancies."
Grade 5 Officers were
certainly not as it were the flotsam and jetsam of the Non Staff Class as
suggested by the learned Deputy Solicitor General.
Moreover, NSC Grade 5
officers, G. F L. Perera, K. M. P. Wijekoon, R. S. Liyanage and T. H.
Wickramasinghe were Staff Assistants. Presumably, like the other Staff Assistants,
they were so designated because they deserved in terms of seniority and merit
to be placed above other Non Staff Class Grade officers. That is what the
discussions between the representatives of the Bank and the Unions suggest.
(Cf. P11.)
The petitioners in
their affidavit dated 5th October 1993, in response to the Executive
Director's affidavit, deny that there was a cadre in respect of Grade 5
officers. No evidence has been placed before us by the respondents to support
the position of the Executive Director that there was a complement of officers
determined by the Board to serve in Grade 5 within the framework of a scheme.
There was certainly no cadre for Non Staff Class Grade 4 (See the Minutes
of the Meeting between the Deputy Governor and other representatives of
the Bank, including Executive Director Easparanathan, with the Employees' Union
on 2nd September 1992, P11). One may, in the absence of evidence to
the contrary, assume that there was no cadre in respect of Grade 5 employees as
well. It is
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183
not a necessary
inference, but one that is reasonable. Such an inference is further evidence in
support of the petitioners' position that the Bank was acting arbitrarily in
the matter of recruitment. However, the more important matter with regard to
the question presently under consideration is that the Executive Director does
not support the view of the learned Deputy Solicitor General that persons
were placed in Grade 5 because they were undeserving of further consideration.
The evidence indicates that they were promoted to Grade 5 because they deserved
well, both on account of length of service and excellence of their performance
and worth of their qualities.
(16) THE FAILURE AT PREVIOUS INTERVIEWS AS A CRITERION
FOR
ELIMINATION
Were Grade 5 officers
regarded as "chronic" cases for other reasons? In paragraph 31 of the
affidavit of the Executive Director of the Bank, it is stated that "All
the petitioners were persons who had been considered at similar interviews for
promotion from Non staff Grade to Staff Grade on several prior instances
but had not been promoted on those occasions. A list setting out the number of
occasions on which these several petitioners had faced interviews earlier is
annexed herewith marked R6."
The document referred
to is R7 and not R6.
What does the
Executive Director mean by "similar interviews"? The Scheme of
Promotion relied upon by the respondents required three interviews. The
selections in question were based on a single interview. "Similar" to
which of the several interviews? It was certainly not similar to the final
interviews held earlier where the interview panel was differently constituted.
The interview was not
'similar' in the way in which the interview panel was constituted. In what other
way was it 'similar'?
The Executive
Director, in paragraph 8 of his affidavit, states that "where more than
one interview was held for the purpose of promotions there was a process of
elimination of candidates at each interview."
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184
What were the
criteria adopted in the past by (a) the Preliminary Interview Committee (b) the
Second Interview Committee and (c) the Board at the third and final interview,
in deciding on elimination and selection? The Bank has failed to show that such
criteria were announced or that they existed at all. In the circumstances,
there is no way of ascertaining whether, if at all, and in what respects the
latest interview was "similar" to those held earlier.
If the latest
interview led to arbitrary selections because of the absence of certain
criteria to guide the interview committee, or if the criteria were irrational,
or if the criteria were arbitrarily departed from and the selections were made
on the basis of subjective considerations, as it was the case in this matter
for reasons I will state later on,
then if previous interviews were "similar", the results of those
interviews would be of no value at all and ought not to have been taken into
consideration.
If the decisions of
previous interview committees was a determining factor, what was the role of
the latest Interview Committee?
If failure at
previous interviews was a negative factor in assessing performance at the
latest interview, it was not made known to the candidates.
The number of
unsuccessful appearances of each petitioner is stated to be as follows:
1. Mr.
F G. L. Perera 5
2. Mr.
K. M. P. Wijekoon 4
3. Mrs.
W. D. P. M. Samaratunge 4
4. Mrs.
D. Jayasuriya 4
5. Mr.
R. S. Liyanage 4
6. Mr.
J. Gurugamage 4
7. Mr.
T. H. Wickremasinghe 4
8. Mr.
W. R. de Alwis 4
9.
Mr. M. G. W. Karunaratne 3
10.
Mr. K. N. W. Fernando 2
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185
If Perera, Wijekoon,
Liyanage and Wickremasinghe were disqualified as `chronic' NSC Grade 5 cases,
why were Samaratunge, Gurugamage, de Alwis, Karunaratne and Fernando, who were
NSC Grade 4 officers, disqualified? Because they had been unsuccessful at
previous interviews? If failure at previous interviews was a decisive factor,
why were respondent 14 Miss S. P. Mendis, and respondent 16 W. A. Sirisena, who
had, like petitioner 9 Karunaratne, failed three times at previous interviews,
promoted? Having set its own standards ad
hoc, the interview panel did not
adhere to it but had to zigzag its way, arbitrarily, avoiding its own criteria,
to be able to appoint certain persons.
Having regard to the
submissions of the learned Deputy Solicitor-General, NSC Grade 5 officers were
in a category superior to NSC Grade 4 officers. There was no rational basis to
say, as the learned Deputy Solicitor General ventured to do so in his
astounding revelation, that NSC Grade 5 officers had been relegated to a class
beyond which they could not ascend. Banished to some limbo, were NSC Grade 5
Officers tormented from time to time by the hope held out to them by being
called for interviews, that they had, after all, been redeemed and crossed the
border of eligibility? Assuming that they were aware that NSC Grade 5 officers
as such had been disqualified from eventual selection, that would have been the
case. However, the situation is much worse, since they were not aware of this
fact at all. On the contrary, at meetings with the Bank's representatives, they
had been given the assurance that they would be considered for promotion with
Grade 4 officers; and so, hopefully and confidently, they presented themselves
for interview whenever summoned. The learned Deputy Solicitor General
maintained that the petitioners were persons who had faced earlier interview
committees and therefore knew all about the recruitment procedures and
criteria. I am unable to agree with him. They may have certainly suspected that
something was seriously amiss, for at the meeting of the Governor with the
Central Bank Employees Union on 17th July 1992 (P14) the Union had
expressed its dissatisfaction with the manner in which promotions had been
made. But that was not all. They were once again disappointed and perplexed by
the selection of the 11th to the 22nd respondents who
were non staff class Grade 4 officers, persons comparatively inferior in
rank, in preference to them. And so
Page
186
they wrote on 3rd
March 1993 (P7) objecting to the latest selection. However, they could not have
been aware of what was exactly the problem, for the Bank's methods of
promotions, including the fact that Grade 5 officers were not as a class
persons grata and not acceptable came to be revealed only in these proceedings.
The reply to P7 by the Bank R3 setting out the criteria which were supposed to
have been adopted was dated 12th April 1993. This petition was filed
on 2nd April 1993. In any event, exclusion of Grade 5 officers as a
class was not mentioned in R3. In the light of the learned Deputy Solicitor General's
explanation, the NSC Grade 5 officers must not only feel disappointed that they
were not selected, but also greatly astonished and distressed that they were
excluded because they were, albeit secretly, despised as a class and looked
upon with an evil eye. Grade 5 officers were "eliminated" on the
preconceived opinion that they should not be selected and not on the basis of
their performance at the interview. They were excluded on account of prejudice.
There was no rational basis for their exclusion. In fact, the evidence points
in the opposite direction.
(15) THE RECOMMENDATIONS OF THE ESTABLISHMENTS
COMMITTEE
All those who were
summoned as "eligible", whether NSC Grade 4 or NSC Grade 5 officers,
were selected for interview on the recommendations of the Establishments
Committee on 30th, July, 1992 as approved by the Monetary Board on 4th
September, 1992. (Vide paragraphs 5 and 6 of the affidavit of the Executive
Director of the Bank). According to the Executive Director of the Bank, the
Establishments Committee in recommending candidates for interview
"followed the practice" of recommending for the interview only those
candidates who had an excellent record (average of 86% and over) during the
five years immediately preceding the date on which eligibility was determined,
and taking into consideration the criteria laid down by the Monetary Board as
set out in documents marked R1 and R2. The "eligibility" of the
petitioners and 11th 22nd respondents was
considered as at 6th March 1992. (See paragraphs 9, 10, 12, 13, 14
and 15 of the affidavit of the Executive Director).
The Establishments
Committee made its selections from those who had obtained "near
excellent" qradinqs on the basis of assessments
Page
187
made in terms of very
detailed annual personnel evaluation reports in a prescribed form (P12) of
those who had obtained a "near excellent grading". P12 contained
fifteen main headings relating to specific aspects of performance and ability.
In addition there was a special assessment of "Negative Qualities".
The evaluation required the consideration of eighty two options, ranging
from four to seven options under each of the sixteen main heads, in the process
of forming notions with regard to the performance, abilities and qualities of
each employee. "Near Excellent" may, in terms of the affidavit of the
Executive Director, have ben 81 % (para. 25 (b) of his affidavit) or 76% (para.
25(d) of the affidavit). There is no criterion to determine "near
excellent". The "Classification and Descriptive Code" in P12
refers to "over 85%" as "outstanding" and 76% to 85% as
"Excellent". The Executive Director states in paragraph 14 of his
affidavit that "all officers who were invited for the interviews held on 5th,
6th and 7th
January were officers who had excellent ratings during the 5 year period
immediately preceding the date on which their eligibility was considered
..." In paragraph 25(d) of his affidavit, the Executive Director explains
that "To achieve an excellent grading an officer should get a minimum
average of 86% of the total marks given, after adjustment for late attendance
and negative qualities." In paragraph 25(g) of his affidavit the Executive
Director said that in recommending the names to the interview panel "the
Establishment Committee also took into consideration the work, conduct,
attendance and punctuality of the officers concerned." In terms of the
Descriptive Code in P12, those who obtained an overall rating of over 85% were
classified as A+ and merited the descriptive standing "Outstanding",
and not merely "Excellent" as the Executive Director explains in
paragraph 25(d). The petitioners maintain that all of them were classified as
"Outstanding".
If, as the
respondents maintain, some of those who were summoned for interview had
obtained higher ratings than others and were therefore superior, that fact has
not been established by evidence. Who were those who obtained more marks? Why
was this information suppressed? The inference I draw is that the disclosure of
that information would have been adverse and unfavourable to the respondents'
selection of the 11th 22nd respondents in
preference to the petitioners.
Page
188
(18) THE SELECTION BY A SINGLE
INTERVIEW PANEL WAS AN AD HOC DEPARTURE FROM THE BOARD'S
OWN SCHEME
After the
Establishments Committee at its meeting held on 30th July 1992 had
recommended the eligible candidates for interview, the recommendations were
approved by the Monetary Board on 4th September 1992 and letters
inviting the eligible candidates to present themselves for interviews were
issued on 28th December 1992 and the interviews were held on 5th,
6th and 7th January, 1993.
The petitioners
maintained that in terms of Public Administration Circulars, it was Government
policy that promotions should not be made on the basis of an interview but on
the basis of merit and seniority and an examination. The Bank, as we have seen,
took up the position that the Circulars did not apply to the Bank and that the
Bank was "empowered to lay down the manner in which promotions are to be
conducted." Was the scheme laid down by the Bank in the exercise of its
powers adhered to by the Bank?
The Scheme of
Recruitment set out in P4 does not mention an interview as a part of the
selection process. However, in terms of R1, the Board had at its meeting 1/89
decided on the following "procedure relating to promotions of Staff
Assistants to Staff Class Grade 1 ":
(i) The Establishments Committee to take
into consideration the record of service, work, conduct, attendance and
punctuality of officers who have completed 4 years confirmed service in Non Staff
Class Grade 4 and of officers in Non Staff Grade 5 and to recommend
candidates for interview by a Preliminary
Interview Committee nominated by the Governor for the purpose
(ii) A
second Interview Committee nominated by the Governor interviewing those
recommended by the Preliminary Interview Committee and recommended
candidates for interview by the Monetary Board.
Page
189
(iii) The Monetary Board to
interview those recommended by the second Interview Committee and selecting
those who were considered fit for promotion to Staff Class.
The emphasis is mine.
R1 was modified by
the Board at its meeting 2/90 on 16th January 1990 with regard to
the criteria the Establishments Committee should apply in recommending
candidates "for interview by a Preliminary
Interview Committee nominated by the Governor." (The emphasis is
mine.) It did not modify the provisions of R1 regarding the need for three
interviews.
The Executive
Director of the Bank in paragraphs 6 and 9 of his affidavit accepts the fact
that the Establishments Committee, taking the prescribed criteria into account,
was to "recommend candidates for interview by a Preliminary Interview Committee nominated by the Governor for the
purpose." (The emphasis is mine.)
The petitioners in
paragraph 12 of their affidavit stated that "prior to the present scheme
of Promotions (P1) coming into force, it was the practice at the Central Bank
to conduct 2 or 3 interviews for the promotion of Non Staff Class
Officers to Staff Class Grade 1. The final interview was conducted by the
Governor or by the Monetary Board."
Responding to that,
the Executive Director in paragraph 8 of his affidavit states as follows:
"Answering paragraph 12 of the affidavit of the petitioners, I admit the
several averments contained therein and I further state that where more than
one interview was held for the purpose of promotions there was a process of
elimination of candidates at each interview."
Obviously the purpose
of having several interviews is to eliminate less suitable candidates at each
stage. However, the respondents fail to explain why.
(1) a final selection was made at the first
and only interviews, whereas the procedure approved by the Monetary Board as
set out in
Page 190
R1, which the
respondents say was the procedure applied, required three interviews, and when
that was the established practice?;
(2) the final selection was made by senior
officers of the Bank and not by the Board itself as prescribed by the Monetary
Board in R1, and in accordance with practice, except when, if the petitioners
were right, the Governor, departing from the scheme in R1, held the third
interview.
It should be
mentioned that even in the selection of serving officers in terms of the scheme
of "accelerated promotions", when serving officers competed with
outsiders, the Scheme of Recruitment in P4 specified that "All candidates
will be interviewed by the Board before
promotion to Staff Class can be considered." (The emphasis is mine.)
Importance was attached to the Board itself selecting Staff Class officers,
irrespective of which scheme was used.
In paragraph 19 of
his affidavit, the Executive Director of the Bank states that the object of the
single interview was "for the purpose of ascertaining finally "(the emphasis is mine)" the
suitability of candidates for promotion to the Staff Class of the Central Bank
..." How was this justifiable in the light of the decision of the Board
embodied in R1 that the final selection would be by the Board itself after
candidates had been screened at two previous interviews? Why was a departure
from the Bank's scheme made ad hoc?
Obviously, several interviews, with the final
selection being made by the Board itself, was intended to minimize
arbitrariness and ensure a fair evaluation of the candidates. In terms of
paragraph 12 of the Executive Director's affidavit, 65 officers were invited
for interview, but five of them did not present themselves for interview. If as
the Executive Director explains in paragraph 8 of his affidavit, the interviews
sorted out the candidates, it is to be expected that by the time of the final
interview by the Board a much smaller number of candidates than interviewed
earlier would have presented themselves, giving the Board the time and the
opportunity to carefully assess the candidates. As it happened, the final
selections were made in a hurry, and therefore, as a matter of reasonable
inference, inconsiderately, without due deliberation.
Page
191
In paragraph 21 of
their affidavit the petitioners state that "each candidate was interviewed
for a maximum of five minutes, the 10th respondent (The Director of
Establishments) making an announcement that the time was up at the end of five
minutes)." In paragraph 17 of his affidavit, the Executive Director states
that the interviews were "not restricted to five minutes and that the
candidates were interviewed for as long as it was necessary." If the
Executive Director's version is to be preferred, he should have adduced
evidence to support it. For how long were each of the 11th
22nd respondents and the petitioners interviewed? Why was one
interview longer than another? Why was it "necessary" in the one case
but not in the other? At least what was the total time spent on all the
interviews? No evidence has been placed before us on these matters. "Five
minutes" is not in this case a less distasteful way of saying that the
Interview Committee was making its evaluations too quickly, for specific
reference is made to the role of the Director of Establishments acting as a
time keeper. "Five Minutes" was much more than an euphemism.
The members of the
Interview Committee were said by Executive Director Easparanathan in paragraph
29 of his affidavit to have had the bio data and service records of the
candidates. each candidate was supposed to have been assessed
"independently by the members of the Board." Taking "Board"
to mean Interview Committee, for the one and only interview was by a group of
senior officials who made the selection and not, as required by R1, by the
Monetary Board, what kind of assessment of capability could have been made in
five minutes after perusing the bio data and service records? In terms of
paragraph 17 of Executive Director Easparanathan's affidavit, the
"Interview Board" consisted of the 5th to 10th
respondents. "However", he explains that "the 8th Respondent was present as a member of the
Interview Panel only in the morning of the 5th January 1993 and he
was not present and did not function as a member of the Interview Panel
thereafter." Those who were interviewed on the morning of 5th
January would have been worse off than the others who were interviewed when the
8th respondent was absent, for six rather than five persons would
have been perusing the bio data and service records in five minutes.
Assuming, as we must if each member of the Interview Committee,
Page 192
as the Executive
Director says, acted "independently", each member would have had a
single minute to peruse the bio data and service record of a candidate to
assess "capability" and/or "experience." The service
records spanned many years: 27 34 years in the case of the petitioners,
and 22 27 years in the case of the 11th to 22nd respondents. There was even less, if not no
time for this at all, for time was spent questioning the candidates. What was
the estimate that could have been made even if "five minutes" was an
euphemism for 'a short time'?
In the circumstances,
one is compelled to conclude that the selections were not made after sufficient
and careful consideration, but arbitrarily. The respondents maintained that the
petitioners and those selected were treated alike. It is a superficial and
worthless submission. Perhaps, both the petitioners and the 11th to
22nd respondents were treated alike in that they each had five
minutes at a single interview. At best they were as equal as are the purchasers
of lottery tickets. Whereas the purchasers of lottery tickets are randomly
selected and the losers do not complain because they consider themselves to be
more deserving, promotion is a reward which after careful consideration, for
sufficient reasons is declared to be merited and earned. Selection for
promotion is not simply a matter of good fortune. There was not even a random
selection, for, as we have seen, a group of persons, namely those who were in
Grade 5, were disqualified as a class, and it was pretended that those who had
failed at previous interviews were also disqualified. Moreover, as we shall
see, the equal time spent was used very differently, both with regard to the
questions asked and with regard to what was done in the making of decisions
within that time.
(18) THE COMPOSITION OF THE INTERVIEW COMMITTEE/ PANEL/BOARD AND THE INTRUSION OF
SUBJECTIVITY INTO THE SELECTION PROCESS
In paragraph 27 of
his affidavit, the Executive Director states that the interview panel consisted
of "several senior officers of the Central Bank who had worked in the Bank
in different capacities over a long period", and filed a document (R5)
entitled "Career of each member of the Interview Panel", giving the
name, designation and positions
Page
193
held by each member
of the panel. In paragraph 29 of his affidavit, the Executive Director states
that "In addition to the members of the Interview Panel being aware of the
capabilities of the various candidates who presented themselves for said
interview, their service records were also made available to the said members
and each candidate was assessed independently by the members of the
Board."
The learned Deputy
Solicitor General submitted that the interview was conducted by
"responsible" officers of the Bank. They decided on the criteria to
be adopted and made their selections. No doubt they were estimable people about
whom even the petitioners probably entertained a favourable opinion, for no
objection has been taken to the composition of that panel on personal grounds.
What they object to is the role of that panel as the final selecting authority.
They maintain, justifiably, that in terms of the scheme of promotion relied
upon by the respondents, the final selection should have been made by the
Monetary Board after a second interview.
In the matter before
us, as we shall see, the interview panel was not even guided by criteria laid
down by the Board, and, therefore, the Board in making the final selections may
well have selected other persons. Moreover, if, as the Executive Director says,
the members of the Interview panel were equipped to assess the candidates
because, among other things, they were already "aware of the capabilities
of the various candidates", subjectivity was introduced into the selection
process. Each candidate, the Executive Director said, was assessed
"independently" and not, therefore, after his opinion was discussed
and moderated by the panel as a whole. And so, in the process of assessing the
worth of each candidate exclusively through the medium of one's own mind or individuality,
having regard to one's own experience, a member of the panel may well have
entertained erroneous opinions. Objective, and not subjective standards, must
be used at every stage of a recruitment process so that selection may be
determined by actual facts and not be coloured by irrational or prejudicial
feelings, or by fanciful opinions or misguided notions. Were each of the sixty
persons interviewed personally known to each of the five members of the panel?
If not, how was it possible for each member to act "independently" on
the basis of his personal knowledge? What was
Page
194
the nature and extent
of contact between the persons interviewed and each member of the panel? The
Bank has not adduced any evidence in that regard. The Bank, as we have seen,
placed reliance on the personal knowledge the members of the interview had of
the candidates. Had the selection been made by the Monetary Board, is it not
likely that objective, rather than subjective considerations based on personal
knowledge, would have been taken into account? Even well formed interview
panels are not infallible and can sometimes produce strange results; but their
composition can be crucial, as it was in this case.
(20) THE UNEVENNESS OF THE QUESTIONS ASKED AT THE INTERVIEW
The petitioners state
that the questions asked were haphazard, and sometimes irrelevant, and that the
selections were fortuitous and therefore resulted in the elimination of the
petitioners and the selection of the 11th to 22nd respondents unfairly. In paragraphs 23 32
of their affidavit they set out the questions asked of each of the petitioners.
The first petitioner
had been questioned on the definitions of management and financial audit;
whether he had read a certain newspaper article on international accounting standards;
and about the work he had done thirty two years earlier in the Exchange
Control Department.
The second petitioner
had been questioned on the air route to Madagascar; the present name for what
was once known as Congo; the present name for Burma and its capital; and about
his current and previous work.
The questions put to,
and the answers given by the third petitioner were as follows:
Q. What is the subject you are doing at
present?
A. I am attached to the Administration
Division of the Public Debt
Department.
Page
195
Q. Why are you doing administration?
A. I was posted there by my Head of
Department.
Q. Who was the tall boy who was doing
administration earlier?
A. The tall boy in the Department did not
do administration, he did
treasury bills.
Q. Where is he now?
A. He is at the Anuradhapura Branch.
The fourth petitioner
was questioned about the functions of the Central Bank, re finance, EPF
refunds and Bank re financing.
The fifth petitioner
was questioned as to whether salaries could be paid before the 25th
of the month, and what disadvantages there were in such payment.
The sixth petitioner
was questioned on the differences in the EPF Department in the 1960s and at the
present time; the names of the Superintendent of EPF then and now; how an
employee of a firm comes to know whether EPF contributions are made on his
behalf; and on suggestions for the better functioning of the EPF Department.
The seventh
petitioner was questioned on his work in the Bank Supervision Department; what
the BASLE agreement was; and the subject of visas for expatriates attached to
foreign Banks. There was also an aborted question: The seventh respondent
Executive Director Nagahawatte, asked the seventh petitioner, Wickramasinghe,
about the number of EPF account holders, and before petitioner Wickramasinghe
could answer, the Executive Director G. M. P de Silva, the eighth respondent,
interrupted and asked "Why do you ask that question?" Nagahawatte
stated that he was not able to answer the question.
The eighth petitioner
was questioned as to the number of departments of the Bank in which he had
worked and which was the best department; how the genuineness of gold is
tested; who was the
Page
196
famous Oxford educated anthropologist; who is the Prime Minister
of Pakistan; and who was the person responsible for obtaining independence for
Pakistan.
The ninth petitioner
was questioned about the technical defects in the Mahaweli Scheme.
The tenth petitioner
was questioned about the Collection Division of the EPF Department and the
functions of the Banking Department.
Although he was
himself a member of the interview panel (See R5), Executive Director
Easparanathan in paragraph 19 of his affidavit states that he "cannot at
this stage recall all the questions that were asked from each of the
candidates..." Personal amnesia may be understandable or even excusable.
However, why was no record kept of the questions and answers when the interview
was a matter of paramount importance in the selection process? The recording of
interviews has the salutary effect of keeping interviewers within the bounds of
propriety and relevance in addition to providing evidence of fairness. The
failure to do so disabled the Bank in refuting the allegation of the
petitioners that the questions were irrelevant and uneven, generally or
specifically, in relation to the petitioners. Surely, especially with the
assistance of modern technology, the recording of an interview and transcribing
it, should be a very simple matter ?
The evidence adduced
by the petitioners certainly supports their claim that the questioning was
uneven and therefore resulted in unequal treatment. Moreover, the exchange
between the seventh and eighth respondents during the interview of the seventh
petitioner shows that the members of the Interview Committee were not always,
if at all, certain as to what the purpose of interview was, in the sense of
what they were supposed to be ascertaining.
(21) THE SUPPOSED CRITERIA FOR EVALUATION AT THE
INTERVIEW WERE
UNCERTAIN
In the written
submissions filed by Attorney at Law S. Abeywickrama on behalf of
the 1st to 10th respondents, while
Page
197
rejecting that no
interview ought, in terms of Public Administration Circular No. 30/91, to have
been held at all, it is stated in paragraph 2.2 that "in any event the
Public Administration Circular prescribes merit
and seniority as the criteria that should be applied for the purposes of
promotions. The Central Bank has applied
these criteria in selecting the candidates for promotion. This position is
apparent considering the criteria that were adopted at the interview for the
purpose of selecting." The emphasis is that of the Attorney at-Law.
Apparent from what?
The Scheme of Recruitment in P4 as amended by R1 and R2 do not, as they should
have, specified the criteria to be taken into account for evaluation at the
interviews. And as far the evidence before us is concerned, the variously
expressed positions of the Bank cannot be reconciled.
That which is stated
in the Bank's written submissions is different to what the petitioners were
told in P15 by the Bank, namely, that the selections were made on the basis of
performance at the interview, seniority, experience, and general capability in
their work.
In paragraph 19 of
his affidavit, Executive Director Easparanathan states as follows:
"...I state that
the interview was conducted for the purpose of ascertaining finally the
suitability of candidates for promotions to the Staff Class of the Central Bank
where the responsibilities and the qualities that an officer is called upon to
bear are vastly different to the responsibilities and qualities that an officer
is called upon to bear in the class to which the candidates belonged, namely,
the Non Staff Class. With a view to achieving this objective at the
interview, the questions were asked for the purpose of ascertaining the
knowledge of the candidates with regard to the work handled by them, the
knowledge of the functions of the Department in which they worked, the
functions of the Central Bank, general knowledge and awareness, ability to
identify a problem and respond to it and their analytical skills in answering a
question."
Page
198
(22) THE SUPPOSED CRITERIA FOR EVALUATION AT THE INTERVIEW WERE VAGUE
The promotions in
question related to the promotion of "Staff Assistants". "Staff
Assistants" were persons who were expected to exercise "supervisory
functions". In what ways were the "responsibilities and
qualities" of "Staff Assistants" different to those of Class I
Staff Grade Officers? Being not only different, but "vastly
different", one might reasonably expect an explanation of what were the
differences in the tasks to be performed and some rational explanation of the
character, and nature of the qualities including those of excellence, good
natural gifts and capacity, ability, skill and disposition that were expected
of a Staff Grade Class I Officer, and how the interviews were structured
and conducted to select the best persons in the light of the tasks to be
performed. We had no satisfactory explanation of these matters. The inexactness
of the couching of criteria, and the inability of members of the interview
panel therefore to think with clearness in the formulation of their questions
appear from the application of the criteria.
(23) CRITERIA FOR EVALUATION AT THE INTERVIEW NOT ANNOUNCED
How was it decided by
the Interview Committee that the candidates selected were better than the
others who were not selected, and especially the ten petitioners?
The criteria that
were supposed to have been applied were first revealed by the Director
Establishments in R3, after the selections were made and after these
proceedings were commenced. Moreover, the criteria set out in R3 are not only
inconsistent with what was said by the respondents themselves in the written
submissions and through Executive Director Easparanathan to have been done but
also, as we shall see, inconsistent with what they did.
(24) THE APPLICATION OF THE SUPPOSED CRITERIA (A) THE CRITERION
OF SENIORITY
Seniority was supposed
to have been a criterion. In terms of the information contained in paragraphs
13 and 15 of the affidavit of the
Page
199
Executive Director,
albeit not in the exact manner in which he sets out the information, the
position with regard to the seniority of the petitioners was as follows as at 6th
March 1992:
Petitioner Name No.
of No. of
No. of No. of
No. Years in Years in Years
in Years in
Bank
Non Staff Non Staff Non-Staff
Class Grade 5 Class
Grade 4 Grades 4 & 5
1.G. A. L. Perera 34 10 1/2 5 15 1/2
2.K. M.P. Wijekoon 33 10 1/2 2 (6) mths. 11
3.W. D. P. M.
Samaratunge 31 10 Nil
10
4.D. Jayasuriya 30 10 Nil
10
5.R. S. Liyanage 30 10 ½ 6 mths. 11
6.J. Gurugamage 30 9 Nil
9
7.T. H.
Wickramasinghe 30 10 1/2 6 mths. 11
8.W. R. de Alwis 27 1/2 10 Nil 10
9.M. G. W.
Karunaratne 27 10 Nil 10
10K. N. W. Fernando 27 11 Nil 11
The position with
regard to the 11th 22nd respondents was as
follows:
Respondent Name No.
of No. of No.
of No. of
No. Years
in Years in Years in Years in
Bank Non Staff Non Staff Non Staff
Class Grade
5 Class
Grade 4
Grades 4 & 5
11. D. J. Wansapura 27 06 Nil 06
12. N. Z. Musafer 27 06 Nil 06
13. K. M. B. Ranasinghe 24 06 Nil 06
14. S. P. Mendis 25
1/2 O8 1/2 Nil 08 1/2
15. S. Peris 25 06 Nil 06
16. W. Sirisena 25 10 Nil 10
17. S. R. Gnanamuttu 24 06 Nil 06
18. G. Gamage 23 09 Nil 09
19. W. D. J. Chandradasa 23 06 Nil 06
20. A. J. P. Leelaratne 22 06 Nil 06
21. M. D. A. Jayasinghe 22 06 Nil 06
22 W. K.
P. I. Weerasekera 22 06 Nil 06
Page 200
Length of service as
a Staff Assistant was a factor stated in P4 to be taken into account in
determining eligibility. If as the respondents say in their written submissions
P4 was the applicable scheme and that the selections were made on the
"same basis" as that used in the determination of eligibility by the
Establishments Committee, why is no mention made by the Executive Director of
service as Staff Assistants? It was, after all, a factor recognized at the
meeting between the Trade Unions and the Governor and other representatives of
the Bank on 24th October 1992. An additional mark was to be given
for "the experience gained in the post of Staff Assistant."
If seniority was a
factor to be taken into account by the Interview Committee, how was this
assessed? What weightage was given for each year of service (1) in the Bank (2)
in NSC Grade 4 and (3) NSC Grade 5 (4) and as Staff Assistants? The respondents
failed to show what weightage, if any, was given to any or each of these
factors. If the Interview Committee was doing anything more than the
Establishments Committee, should not the marking for seniority have been at the
time of selection, 5th
7th January 1993, rather than 6th March 1992 when eligibility for interview was
considered?
According to the
respondents, 25% of the marks allocated at the interview was for seniority. How
many marks each candidate earned and how that was determined have not been
established by the Bank. However, in the light of the information in the
Executive Director's affidavit, in terms of years of service in the Bank,
petitioners Perera, Wijekoon, Samaratunge, Jayasuriya, Liyanage, Gurugamage and
Wickramasinghe were senior to each and every one of respondents 11 22.
With regard to Petitioner Karunaratne and respondents Wansapura and Musafer,
each of them had 27 years of service. Petitioner De Alwis had 27 1 /2 years of
service and was senior to petitioner Karunaratne and to respondents Wansapura
and Musafer. Petitioner Fernando had 27 years of service and was senior to the
13th to 22nd respondents.
in terms of years of
service in Non Staff Class Grade 4, all of the petitioners were senior to
the 11th to 22nd respondents.
Page
201
In terms of years of
service in Non Staff Class Grade 5, none of the respondents had served in
that Grade, whereas petitioners Perera, Wijekoon, Liyanage and Wickramasinghe
had served in that Grade. Taking the total service in NSC Grades 4 and 5, in
terms of seniority in service, Perera, Wijekoon, Liyanage and Wickramasinghe
were well ahead of some of the other petitioners and above each and every one
of the 13th to 22nd respondents.
(25) THE APPLICATION OF THE SUPPOSED CRITERIA
(B) MERIT
Seniority alone, the
respondents said, was not the basis of selection. If, as established by the
petitioners, they ought, in terms of the criterion of seniority, to have been
selected in preference to the 11th to 22nd respondents,
what were the other criteria in terms of which they were excluded? Admittedly,
when one compares the response of the Bank in P15, the affidavit of Executive
Director Easparanathan and the written submissions of the Bank submitted by
Attorney at Law Abeywickrama, it is evident that there were no
certain standards of selection. However, the Attorney at Law for
the 1st 10th
respondents, as we have seen, in making the written submissions of the
Bank, stated that the Central Bank had applied the criteria of "merit and
seniority" in selecting the candidates for promotion. What was
"merit"? What were the criteria for evaluating "merit"?
The Attorney at Law
in paragraph 2.3 of the written submissions of the 1st to 10th
respondents explains that, since the record of service, work, conduct,
attendance and punctuality, in terms of the scheme of promotion in P4 as
amended, were to be taken into account, "as such it is clear that merit in
addition to seniority will be considered for the purpose of promotion from Non Staff
Class Grade 5 to Staff Class Grade."
It is by no means
clear that merit was taken into account. All we have is an assurance that in
future it "will be considered". The criteria set out in P4 as amended
were for the purpose of guiding the Establishments
Committee in making its recommendations with regard to those for the
preliminary interview. P4 as amended says
Page 202
nothing about the way
in which merit was to be determined by the Interview
Committee. Neither merit, nor seniority nor any other criteria are
mentioned in P4, as amended, as guiding factors which the preliminary or second
Interview Committees or the Board at the final interview should take into
account. How does it become "clear" that merit was taken into account
by the Interview Committee or that
it was expected to do so merely because the Establishments Committee was required to take certain matters into
account? Nor is there any reference in P4, R1, R2 or elsewhere as to how
seniority and merit were to be ascertained.
What did the Interview
Committee do? In paragraph 2.2 of
the written submissions of the Bank, it is stated that "at this interview
candidates were marked on seniority, academic qualifications, general awareness
and performance." The assertion of the Bank that candidates were selected
on the basis of "seniority and merit" cannot be sustained on the
ground that academic qualifications, general awareness and performance
constituted the elements of "merit", for the Bank in its written
submissions, after stating that the "candidates were marked on seniority,
academic qualifications, general awareness and performance", adds that
"equal weightage was given to each of these elements and the members of
the interview panel marked each of the candidates independently. The candidates
were selected on the basis of the average marks obtained by them."
Executive Director Easparanathan in paragraph 28 of his affidavit confirms
this. He states as follows:
"I state that
the candidates who presented themselves for interview were judged on the basis
of their seniority, academic qualifications, general awareness and their
performance. Equal weightage was given to the above criteria."
Thus, the selection
was not simply on the basis of two criteria, namely, seniority and merit, as
stated by the Bank in paragraph 2.2 of its written submissions but, as
differently stated in the same submissions, and supported by Executive Director
Easparanathan, on the basis of seniority, academic qualifications, general
awareness and performance, for "equal weightage" was given to each of
these four separate factors.
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203
Executive Director
Easparanathan further explains the selection process as follows:
27. The interviews were held by a Panel
consisting of several senior officers of the Central Bank who had worked in the
Bank in different capacities over a long period...
29. In addition to the members of the
interview panel being aware of the capabilities of the various candidates who
presented themselves for the said interview, their bio data and their
service records were also made available to the said members and each candidate
was assessed independently by the members of the Board.
30. I further state that 10 out of the 12
respondents who were promoted had Degrees from recognized Universities and/or
had completed the examinations conducted by the Institute of Bankers. Out of
the two candidates who did not have such special qualifications, the 12th
respondent had received a special commendation from a Governor of the Central
Bank. A copy of the said commendation is annexed herewith marked R6. In
addition, the said two candidates, namely the 11th and 12th
respondents, were found to be suitable for promotion on the basis of the
criteria referred to earlier. Amongst the several petitioners only the 8th
petitioner had obtained a Degree from a recognized University or had any
equivalent banking qualifications."
When the petitioners
in their letter dated 7th March 1993 protested against their
exclusion from promotion (P7), the response of the Bank in its letter dated 12th
April 1993 (P15) was that the Interview Committee had made its selections on
the basis of performance at the interview, seniority, experience, and general
capability in their work. No mention is made of academic and/or professional
qualifications having been taken into account. No mention is made of
"special qualifications" or "commendations" being taken
into account. Whereas "performance", simpliciter, is referred to in
the written submissions of the 1st 10th
respondents and in Mr. Easparanathan's affidavit, "performance at the
interview" is referred to in the letter of 12th April 1993. Did
"performance at the interview"
Page
204
mean how well or
badly they answered the questions, or did it mean how they fared, having regard
to marks given for seniority, educational qualifications, general awareness and
performance in the sense of the successful accomplishment in past years of the
tasks assigned to them and/or proven capabilities in that regard? Or did it
mean the judgment of capabilities by reference to the personal notions of the
members of the panel? We have been given no answer. If "performance"
meant "experience" and/or "general capability", could the
interview committee have done better than accepting the assessments made by the
Establishments Committee on the basis of the five annual evaluation reports? I
do not think so, having regard to the way in which the interviews were
conducted.
There were no certain
standards and understandably, no standards that could have been announced
without reasonable protest. For example, could it have been announced, without
legitimate resistance, that all NSC Grade 5 officers were, by reason of being
in that Grade, excluded from further consideration as being 'chronic' cases: or
that failures at previous interviews were taken into the process of reckoning?
Could it have been announced without justifiable protest that
academic/professional qualifications were being taken into account?
(26) THE APPLICATION OF SUPPOSED CRITERIA (C)
ACADEMIC/PROFESSIONAL QUALIFICATIONS
It was common cause
that the matter in question related to the "rankers", "in service",
"ordinary scheme". Accepting the respondents' view that the
applicable scheme was that which was set out in P4 as amended by R1 and R2,
there is nothing that suggests that academic and/or professional qualifications
play any part in the promotion of Staff Assistants to Staff Class Grade 1. That
was plainly a scheme recognizing the importance of experience judged by the
proven excellence and worth of serving officers. Academic and/or professional
qualifications were relevant, as far as serving officers were concerned, to the
scheme of "accelerated promotion" in terms of which the Bank was
attempting to inject new blood as well as providing incentives to serving
officers to improve their knowledge and skills. In any event, academic and
professional qualifications had
Page
205
been already given
credit in earlier promotions and it seems to have been a recognized policy in
the Bank not to give credit for academic/professional qualifications if it had
already been given. Thus, although at one stage 10% weightage had been given
for educational qualifications in the appointment of Staff Assistants, this had
been withdrawn by the Governor in order to avoid duplication.
Assuming that it was
legitimate to have taken academic/professional qualifications into account and
that ten of the twelve respondents had the requisite qualifications and
this we do not know for certain because there is no evidence that the Degrees
were not merely any Degrees from "recognized universities" as the
Executive Director says in paragraph 30 of his affidavit, but also in specific
subjects deemed relevant to the work in hand and of a specified quality,
namely, first or second class upper division, as prescribed by the Board in R1
why was De Alwis, the eighth petitioner, who in paragraph 30 of Executive
Director Easparanathan's affidavit is admitted to have had a Degree, excluded
from selection? Why was he excluded while respondent 17, S. R. Gnanamuttu who,
according to the written submissions of the Bank, had no Degree but merely
possessed a Diploma in Library Science selected? In the written submissions of
the Bank Gnanamuttu is referred to as a person holding "special academic
qualifications." Were selections made on the basis of a Degree, as the
Executive Director claims, or on the basis of "special academic
qualifications" as stated by the Bank in its written submission? What were
"special academic qualifications"? How were they relevant to the
selection of Staff Class Grade officers? A Diploma in Library Science is not a
recognized academic or professional qualification in terms of P4 as amended by
R1 which took great care in specifying the relevant degrees and professional
qualifications. The respondents have made no explanation. How are the
selections of Wansapura, the 11th respondent, and Musafer, the 12th
respondent, justified if the phrase 'special qualifications' meant 'diplomas',
Wanaspura and Musafer had neither degrees nor diplomas of any sort. The
explanation of the Executive Director in paragraph 30 of his affidavit is that
although Musafer had no degree, she had "a special commendation from the
Governor" in support of which he produced R6. R6 is a letter dated 16th
December 1982 from the Secretary to the Governor and Deputy Director of
Economic
Page 206
Research addressed to
the Governor commending the "devoted work" of four officers,
including Musafer, in connection with the "efficient organization and
smooth functioning" of a seminar. The letter bears an endorsement,
presumably from the Governor, stating DE. Mrs. Musafer is hereby commended. P1.
place this in her personal file". Whether, and if so, and to what extent
this commendation, which had been issued as far back as 1982, had already been
taken into account in making Musafer eligible for interview is not in evidence.
However, there is no justification made by the respondents, and I can see no
grounds, let alone sufficient reasons, for equating such a commendation with the
academic and professional qualifications of the sort specified in R1 in the
scheme that was supposed to have been applicable. It was an ad hoc criterion adopted for the
particular purpose of selecting Musafer, and therefore, unfairly discriminatory
in her favour, resulting in the unjustifiable exclusion of one of the
petitioners. As far as Wansapura, the 11th respondent was concerned,
not even so much as a substituted criterion was suggested. After,
unsatisfactorily explaining why Musafer was selected, the Executive Director,
in paragraph 30 of his affidavit, lamely and vaguely, says: "In addition,
the said two candidates, namely the 11th and 12th
respondents were found to be suitable for promotion on the basis of the
criteria referred to earlier." There is no evidence establishing
Wansapura's superiority in any way to the petitioners.
(27) THE APPLICATION OF SUPPOSED CRITERIA
(D) "GENERAL
AWARENESS"
What was
"general awareness"? If "awareness" was used in the usual,
contemporary sense of being watchful and being on one's guard, how was this
relevant to the purpose of recruitment by way of promotion of Non Staff
Class Officers to the Staff Class? Perhaps the term "awareness" was
used in the Middle English sense of being informed and cognizant and conscious?
Aware of what? Matters germane to the work to be performed; or other matters?
If they were with regard to unrelated matters, what was the purpose of the
questions? Was the quizzing then to merely expose the ignorance of some persons
and to make fun of them or to embarrass them? There is no explanation.
Page
207
It is understandable
that questions may have been asked about the functions of the Central Bank and
the functions of the Department in which they worked, for they were going to
continue to work in the Bank and may have been assigned to work in the same
Department of the Bank as that in which they were functioning. However, what
was the relevance of ascertaining the knowledge of candidates "with regard
to the work handled by them"? What might have been relevant would rather
have been what Executive Director Easparanathan described as the "vastly
different" work to be handled
by them as Staff Class Officers. The interview should have been concerned with
whether candidates were aware of what they were expected to do rather than with what they were doing.
Competence with
regard to what the candidates were doing, had already been ascertained, among
other things, in five annual evaluation reports and considered for the purpose
of determining eligibility for the interview. Column 4 entitled
"Knowledge" of the annual Personnel Evaluation Report (P12), states
that it "describes the extent of the background information an employee
has in respect of his own duties and of subjects allied to those duties," and
proceeds to set out seven possible assessments the most number of
options under any head in the Report. The evaluation of
"knowledge" had been by reference to responses to the following
assessments:
(a) Has a good knowledge of his subject and
related matters.
(b) Very well informed; unusually sound
knowledge not only of his own subject and related subjects as well.
(c) Has a thorough knowledge of his subject;
shows effective experience.
(d) Knows his subject fairly well.
(e) Has just sufficient knowledge, of his
subject to deal satisfactorily with only the general aspects of his work.
(f) Has hardly any knowledge of his subject
and functions.
(g) Has little knowledge of his subject and
has need to consult others and refer frequently for information.
Page 208
Could the interview
panel have done better in the time available?
(28) THE APPLICATION OF SUPPOSED CRITERIA (E)
IDENTIFICATION OF A
PROBLEM AND RESPONDING TO IT
Likewise, the
capacity to identify a problem and satisfactorily respond to it had been
considered at five annual evaluations under the head "Comprehension and
Judgment". The evaluation form states that what was sought to be
ascertained was "the capacity of an employee to understand a situation in relation
to his work and give an apt decision in relation to that situation." The
evaluation was based on responses to the following assessments:
(a) Can pick up new work in a reasonable
period of time.
(b) Has satisfactory capacity for grasping
new ideas or learning a new job of work.
(c) Has a clear and sharp mind; quick to
grasp a problem; high order of intelligence.
(d) Slow in picking up new work and in
grasping new ideas.
(e) Very slow to learn a new task even with
some explanation.
(f) Is able to understand the general
implications of a problem and pick up new work fairly quickly.
Could the interview
panel have done better in the time available?
(29) THE APPLICATION OF SUPPOSED CRITERIA (F)
ANALYTICAL SKILLS
What the Executive
Director meant by "analytical skills in answering a question" is not
clear. How this was ascertained by the questions asked of the petitioners is
difficult to understand. However, "Analytical Ability", which is
described in the annual evaluation form as an "employee's ability to think
logically and set out the salient features of a problem", were ascertained
in the five annual evaluation reports by reference to the following
assessments:
Page
209
(a) Has good capacity for investigating a
problem analytically and logically.
(b) Is able to pick out the salient features
of some of the simpler problems only.
(c) Capacity for logical thinking and
analytical investigation is of a very high order.
(d) Capacity to think logically and to
analyse a problem is limited.
(e) Officer's capacity to
think logically and present the essential features of a new problem is satisfactory.
(f) Unable to think logically and sort out
the factors bearing on a problem.
Could the interview
panel have done better in the time available?
(30) THE INTERVIEW PANEL WAS IN NO POSITION TO MAKE A
BETTER EVALUATION THAN
THAT WHICH HAD BEEN
ALREADY MADE
Could the Interview
Committee in the time available to them have made a more thorough and fairer
evaluation of the knowledge of the work handled by the candidates, their
ability to identify a problem and respond to it, and their analytical
abilities, than those already made year by year for five years by the immediate
supervising officer of each candidate, moderated by the Deputy Head of the
Department to which the candidate was attached and finally confirmed by the
Head of such Department? (See paragraph 25(c) (f) of the affidavit of
Executive Director Easparanathan)? I do not think so. Indeed, having regard to
the questions asked of the petitioners, one wonders how their relevant
knowledge, abilities and skills were ascertained.
The interview panel
had before them candidates who were, in terms of the "classification and
Descriptive Code" set out in the "Personnel Evaluation Form
Report Sheet" (P12), "excellent" if not "outstanding. If
the 11th 22nd
Respondents were more excellent or or more outstanding than the
petitioners, if has not been established by evidence.
Page 210
There was no mark
sheet produced to enable us to ascertain how each member of the Interview
Committee made his "Independent" assessment in respect of each of the
matters about which Mr. Easparanathan in paragraph 19 of his affidavit says the
Interview Committee was concerned. Not even the aggregate mark sheet was produced
in these proceedings. The respondents have failed to discharge their burden of
adducing evidence to show that the selections they made were even handed,
fair and justifiable, The evidence in fact points in the opposite direction.
(31) DECLARATION
For the reasons
stated in my judgment, I declare that the selection of the eleventh to twenty second
respondents in preference to the petitioners was in violation of Article 12(1)
of the Constitution and that the appointments of the eleventh to twenty second
respondents to Staff Class Grade 1 were therefore of no force or avail and null
and void.
(32) ORDERS
Although the Court
has a wide discretion in terms of Article 126(4) of the Constitution in
granting relief and in making directions, I do not deem it just and equitable
that I should accede to the prayer of the petitioners that the Central Bank of
Sri Lanka should be directed to promote the petitioners to Staff Class Grade 1
with effect from 16th March 1993, for accountability for achieving
the objects of that institution lies with the Monetary Board. Within the bounds
of the law, the determination of the necessary ancillary staff to assist the
Board in achieving its objects and the selection of the best available persons,
ought, in fairness, to be matters for the Monetary Board as the accountable
authority. My business as a Judge of this Court is to see that they act within
the bounds of the law.
The Central Bank in
terms of what it has stated, requires ten more persons in Staff Class Grade 1
on the basis of the promotion of serving officers in Non Staff Class
Grades 4 and 5. I direct the Central Bank to make such recruitments by way of
promotions within two months of this order.
Page
211
I direct that
petitioners G. F. L. Perera, K. M. P. Wijekoon, R. S. Liyanage and T. M.
Wickremasinghe because they were, as explained, the victims of a cruel charade
aggravating the disappointment of unequal treatment in violation of their
fundamental right of equality, shall each be paid forthwith a sum of Rs. 20,000
by the First Respondent by way of a solatium.
I further direct that
the First Respondent shall pay forthwith a sum of Rs. 10,000 each by way of a
solatium to petitioners W. D. P. Samarathunga, D. Jayasuriya, J. Gurugamage, W.
R. de Alwis, M. G. W. Karunaratne and K. N. W. Fernando for the violation of
their fundamental right of equality.
Additionally, I
direct that the First Respondent shall pay forthwith to each and every one of
the petitioners a sum of Rs. 5000 as costs.
WIJETUNGA, J.
I agree with the
conclusions reached by my brother Amerasinghe in regard to the complaint of the
petitioners and his reasons therefor. I also agree with the orders he proposes
to make.
WADUGODAPITIYA, J.
I have read the
judgment of my brother Amerasinghe, and I agree with the conclusions reached by
him in regard to the violation of the fundamental rights of the complaints in
this case. I am also in agreement with the remedial measures he has proposed.
Relief granted.