IN THE SUPREME COURT

OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA.

In the matter of an Application under

and in terms of Article 17 read along
with Article 126 of the Constitution of
the Democratic Socialist Republic of Sri
Lanka.

SC FR Application No: P. U. P. K. De Silva

No 65, Railway Station Rd.,
Balapitiya.
PETITIONER

Vs

01. Public Service Commission,

No 177, Nawala Road,
Narahenpita,
Colombo 05.

02. Dr. Dayasiri Fernando –Chairman

03. Palitha M. Kumarasinghe P.C.
04. Sirimavo A. Wijeratne
05. S. C. Mannapperuma
06. Ananda Seneviratne
07. N.H. Pathirana
08. S. Thillanadarajah
09. M.D.W. Ariyawansa
10. A. Mohamed Nahiya
All of them are members of Public Service
Commission, No 177, Nawala Road,
Narahenpita, Colombo 05.

11 . L. C. Senaratne
Secretary
Public Service Commission,
No 177, Nawala Road,
Narahenpita, Colombo 05.

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12. Southern Province Provincial Public
Service Commission
6th Floor, District Secretariat Office
Galle.

13. H W Wijayarathne /Chairman

14. K K G J K Siriwardena
15. D W Vitharana
16. Munidasa Halpandenaiya
17. Srimal Wijesekara
all of them are Members of the
Southern Province Provincial Public
Service Commission
6th Floor, District Secretariat Office
Galle.

18. S. D. Pandikorala
Secretary

Southern Province Provincial Public

Service Commission
6th Floor, District Secretariat Office
Galle.

19. R M D B Meegasmulla
Chief Secretary
Southern Province Provincial Council
Chief Secretariat Office
S .S. Dhanayake Mw,
Galle.

20. H K R J Edirisinghe
Deputy Chief Secretary (Engineering
Service)
Southern Provincial Engineering
Services Office,
Fort, Galle.

21. Director- Engineering Services

Office of the Engineering Service Board
Independence Square,
Colombo 07.

22. P.B. Abeykoon

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 Secretary
Ministry of Public Administration and
Home Affairs
Colombo 07 .

23. Hon. Attorney General

Attorney General’s Department
Colombo 12.
RESPONDENTS

On this 19th of September 2012.

TO: HER LADYSHIP THE HONOURABLE CHIEF JUSTICE AND THE OTHER
HONOURABLE JUDGES OF THE SUPREME COURT OF THE DEMOCRATIC
SOCIALIST REPUBLIC OF SRI LANKA.

The Petition of the Petitioner above named appearing by I. K. I. Perera his Attorney-at-
Law states as follows: -

01. The Petitioner states that he is citizen of Sri Lanka and residing at the above-
mentioned address. The Petitioner further states that, on or about 01/10/1985 he
was appointed to the Technical Officer (Electrical) Grade III of Middle level
Technical Service in the Local Government Service and thereafter on or about
07/03/1991 he was absorbed to the Provincial Public Service.
A true copies of the said letters dated 01/10/1985 and 07/03/1991 are annexed hereto
marked P1 and P2 and are pleaded as part and parcel hereof.

02. The Petitioner states that, after the institution of the Pardeshiya Sabas, the
Petitioner was posted to the Pradeshiya Saba of Balapitiya and while he was
performing the duties as the Technical Officer in the said Pradeshiya Saba the
distribution of the Electricity was delegated to the private institutions in
consequent to that, the Petitioner was compulsory retired. Being aggrieved by

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 the said decision the Petitioner invoked the jurisdiction of Your Lordships Court
by way of Fundamental Rights application bearing No SC FR 144/92, wherein a
settlement was entered and Your Lordships Court directed to reinstated the
Petitioner with due seniority and back wages.
A true copy of the said order dated 02/04/1993 is annexed hereto marked P3 and is
pleaded as part and parcel hereof;

03. The Petitioner states that consequent to the said reinstatement , the Petitioner
continued resumed as Technical Officer (Electrical) and subsequently in 1994
he was absorbed to the Sri Lanka Technical Service from the Middle Level
Technical Service in the Local Government and thereafter able to obtain the
following promotions in the Sri Lanka Technical Service Category, to wit;

(a) On 24/08/1995 Petitioner's services were made permanent with

effect from 03/10/1985; P4A;
(b) On 12/03/1997 promoted to Technical Officer (Electrical) Grade II; (P4B);
(c) On 07/03/1999 promoted to Technical Service (Electrical Grade II A
Division; (P4C);
(d) On 14/12/1999 absorbed to the Sri Lanka Technical Services Electrical
Grade I; (P4D);
(e) On 07/03/2002 Promoted to the Special Grade of the Sri Lanka Technical
Services; (P4E);
A true copies of the said letters are annexed hereto marked P4A to P4E respectively
and pleaded as part and parcel hereof.

04. The Petitioner states that while he was performing duties in the Southern
Provincial Council on requirement basis he was appointed by the 1st Respondent
Commission as acting Engineer (Electrical) in the Sri Lanka Engineering
Service II Grade II with effect from 09/02/2006.

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 A true copies of the said letters dated 02/02/2006,15/11/2006,13/03/2006,
04/04/2006 and duty report letter dated 09/02/2006 are annexed hereto marked P5A to
P5E and are pleaded as part and parcel hereof.

05. The Petitioner states that this application is instituted in terms of Article 12 (1) ,
12(2), 14 1 (g) and 17 of the Constitution to redress his grievance of non
promotion and /or non absorption and failure to give permanent
appointment to the of the Petitioner to the Sri Lanka Engineering Service II
Grade II, from the Technical Service, nevertheless he had acting as a Engineer
in the Sri Lanka Engineering Service II Grade II, for more than 6 years as
Electrical Engineer which would amounts to executive and/or administrative
action and the against the legitimate expectation and the continuing
violation of fundamental rights of the Petitioner by the one or more of the
Respondents under Article 12(1), 12(2) and 17 of the Constitution of the
Republic of Sri Lanka.

06. (a) The Petitioner states that 1st Respondent is the Public Service
Commission, 2nd to the 11th Respondents are members of the 1st
Respondent Commission and 11th Respondent is the Secretary of the 1st
Respondent Commission;

(b) The Petitioner states that 12th Respondent is the Southern Province Public
Service Commission, 13th to the 17 th Respondents are members of the
12th Respondent Commission and 18th Respondent is the Secretary of
the 12th Respondent Commission;

(c) The 19th Respondents is the Chief Secretary of the Southern Province
Provincial Council and the 20th Deputy Chief Secretary (Engineering
service) of the Southern Province Provincial Council;

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 (d) the 21st Respondent is the Director- Engineering Services of the
Engineering Service Board;

(e) the 22nd Respondent is the Secretary of Ministry of Public

Administration and Home Affairs and the Member of the Engineering
Service Board;

(f) The 23rd Respondent is the Attorney General of the Republic is made
a party Respondent in compliance with the Rules of the Court;

07. The Petitioner respectfully states that after he was appointed as acting Engineer
(Electrical) in the Southern Provincial Council up to date worked up the
satisfaction of the said Council further states that he is most Senior Officer in the
said category.
In Proof of that a letter of commendations issued by the 20th Respondent dated
27/05/2011 and the petitioner's carrier records is annexed hereto marked P6A and P6B
and pleaded as part and parcel hereof.

08. The Petitioner respectfully states that, having competed 27 years the Sri Lanka
Technical Service and 10 years in the special Grade in the said service is eligible
to the promotion to the Sri Lanka Engineering Services II Grade II with effect
from 04/10/2000 in terms of the Sri Lanka Engineering Services Circular No. 31
dated 05/08/1997 which specifically states;
(a) Technical officers who had competed 15 years in total service and
5 years in Class I in the Sri Lanka Technical Service;
(b) Technical officers who had competed 15 years in total service and
5 years in Special grade in the Sri Lanka Technical Service;

(c) Technical officers who had competed 21 years in total service

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 are eligible for the said promotion in the Sri Lanka Engineering service and the
Petitioner further states that Petitioner is eligible under both limbs in terms of
the said circular.
A true copy of the sad circular No 31 dated 05/08/1997 is annexed hereto marked P7 and
pleaded as part and parcel hereof.

9. The Petitioner states that having completed necessary qualifications for the
promotion to the Sri Lanka Engineering Service Grade II/II, the Petitioner on
several occasion made written requests to the relevant authorities requesting
him to be promoted as the Sri Lanka Engineering Service Engineer Grade II/ II
and to make the acting appointment as a permanent appointment. The Petitioner
respectfully states that however the up to date the Petitioners legitimate request
not been entertained. Details of the said letters are as follows;
(a). Letter dated 07/01/2009 sent to the 21st Respondent ; (P8A)
(b). Letter dated 07/01/2009 sent to the 18th Respondent ; (P8B)
(c). Letter dated 28/01/2009 sent to the 11th Respondent ; (P8C)
(d). Letter dated 08/02/2011 sent to the 21st Respondent ; (P8D)
(e). Letter dated 27/04/2011 sent to the 20th Respondent ; (P8E)
(f). Letter dated 22/06/2011 sent to the 2nd Respondent; (P8F )
(g). Letter dated 23/09/2011 sent to the 1st Respondent ; (P8G)
(h). Letter dated 27/02/2012 sent to the 2nd Respondent ; (P8H)
A true copies of the said letters with the relevant annexure annexed hereto marked P8A
to P8H and are pleaded as part and parcel hereof

10. The Petitioner further states that, on 02/01/2009 Ministry of Public

Administration and Home Affairs issued the circular calling the application from
the Officers who are in the Sri Lanka Technical Service to apply for the post of
the Sri Lanka Engineering Service Grade II/II, wherein specifically stated that
25% vacancies of the total cadre of the Sri Lanka Engineering Services has to be
filled from the Technical services.

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 A true copy of the said circular dated 02/01/2009 is annexed hereto marked P9 and
pleaded and part and parcel hereof;

11. The Petitioner states that since he had fulfilled the necessary qualifications to the
said promotion, the Petitioner too had applied to the said post, However the
shock and dismay of the Petitioner he was not absorbed to the said post, only
the Technical officers in Civil category were given the promotions; to wit;
(a) Y. S Senarathne, -Civil Engineer- District Engineering Office -
Galle
(b) Ananda Edirisuriya - Civil Engineer, Meteorology Department and
the Petitioner very respectfully states that officers who got the promotions have
the same qualification as the Petitioner and failure to give the said promotion to
the Petitioner despite the several request is blatant violation of the his
fundament rights guaranteed under the constitution.

12. The Petitioner states that failure on the part of the Respondents give effect to the
document marked P9, i.e allocation of 25% vacancies to the Technical Service
out of the total carder of the Sri Lanka Engineering Services and not give effect
to the appointment of the petitioner to the post of Engineered Grade II/II from
the technical service blatant violation of the Petitioners Fundamental rights
guaranteed under Article 12(I) of the Constitution.

13. The Petitioner states that by letter dated 21/07/2011 the 21st Respondent had
informed the all the relevant Provincial Council Secretaries to notify the existing
vacancies in the Sri Lanka Engineering Service Grade II/II, in the respective
Councils for the purpose of recruiting the of the Technical services officer who
are eligible to promote to the Sri Lanka Engineering Service Grade II/II , wherein
specifically states that 25% vacancies of the total cadre should be allocated to the
Officers in the Technical Services.

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 A true copy of the said letter and the said Circular is annexed hereto marked P10A and
P10B and pleaded as part and parcel hereof.

14. The Petitioner very respectfully states that in the said circular marked P9/P10B
the clause 2 clearly states 25% vacancies had been allocated to the Technical
Services and when the Petitioner inquired from the 21st Respondent, he was
informed that there were only 3 post form category of Electrical Engineers for
the Sri Lanka Engineering services.

15. The Petitioner respectfully states that there were 5 vacancies for Engineers
(Electrical Category) namely Colombo CMC 3 posts, Southern Provincial Council
1 post, Uva Provincial Council 1 post.)

16. The Petitioner further states that, although the 21st Respondent informed that
only 3 vacancies are available in the Category of Electrical Engineers, recently 11
Nos Engineers (Electrical), the BSc Engineering Graduates (electrical) had been
recruited to the Sri Lanka Engineering Services out of which 6 nos had been
posted to the Colombo Municipal Council.
A true copy of the said gazette notification annexed hereto marked P11 and is pleaded as
part and parcel hereof

17. The Petitioner respectfully states that when the said recruitment, the BSc
Engineering graduates were effected, the 1st to the 22nd Respondent above
named had failed and or neglected to allocate 25% vacancies to the Technical
Service electrical category which approximately 3 posts in terms of the circular
dated 02/01/2009 (document marked P9).

18. The Petitioner respectfully states that, while the Petitioner was discharging as
acting Engineer (Electrical) in the said Provincial Council to the shock and
dismay the Petitioner received a letter dated 20/08/2012 from the 20th

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 Respondent terminating Petitioner allowances, which he entitled as acting
Engineer Electrical.
A true copy of the said letterer dated 20/08/2012 is annexed hereto marked P12 and is
pleaded as part and parcel hereof.

19. The Petitioner very respectfully states that 20th Respondent by his letter dated
10/08/2012 informed the 21st Respondent that, a Electrical Engineer from the
Engineering Service had already been transferred to the Southern Provincial
Council and, since the Management Department had approved of 13 Engineers
Grade II/II to the Council and in the management meeting held, further agreed
to divide the said cadre as 11 Civil Engineers and 02 Electrical Engineers . Since
there is one vacancy available in the category of the Electrical Engineer, be given
the said post to the Petitioner.
A true copy of the said letter dated 10/08/2012 is annexed hereto marked P13 and pleaded
as part and parcel hereof.

20. The Petitioner respectfully states that after serving 6 years as the Acting Electrical
Engineer in the said Provincial Council now the Petitioner was revert back to the
his original position which amounts to demotion and now the Petitioner being
subjected to the humiliation and ridicule as serving in lower grade.

21. The Petitioners further state that the said decision of the 1st to the 22nd
Respondents not to promote, and or absorbed to the Sri Lanka Engineering
Service Grade II/II is arbitrary, irrational, capricious and against the Legitimate
expectation of the Petitioners in as much as;

(a). In terms provisions of the circular No 31, dated 05/08/1997 issued by the
Ministry of Public Administration and Home Affairs the Petitioner is
legally entitled to the said post with effect from 04/10/2000;

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 (b). In terms provisions of the circular No 31, dated 05/08/1997 issued by the
Ministry of Public Administration and Home Affairs, one or more
Respondent had failed give effect to the allocation of 25% vacancies to
the technical service out of total cadre position in the Engineering
services;
(c). Not appointing the Petitioner to the post of Engineer Grade II/II
(electrical) in the Southern Provincial Council, when the vacancy had
already been created in the said Council;
(d) the southern provincial Council had already been created a vacancy in
the electrical Engineer Category, however the 1st Respondent Commission
has failed to give effect to the said decision of the Southern Provincial
Council violating the Petitioner fundamental Rights guaranteed under
Article 12(1);
(d). removing the Petitioner from the said acting Engineer post after serving
for 6 years is against the legitimate expiation of the Petitioner, and would
amounted to a discrimination;
(e). due the removal of the Petitioner from the said acting Engineering post
after serving 6 years , and posting back to lower grade, the Petitioner
had thrust to face severe hardships and humiliation and pain in mind;

22. The Petitioner respectfully seek the indulgence of Your Lordships' Court to
reserve his right to tender further affidavits/documents substantiating the
averments contained above in the event of further material becoming available
regarding the actions complained of in the preceding paragraphs.

23. The Petitioner very respectfully and most humbly states that irreparable damage
and loss and injustice would be caused to him and this application rendered
nugatory unless Your Lordships Court be please to grant interim relief;

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 a) staying the 1st to the 22nd Respondent filling the existing Electrical
Engineer vacancy of the Sri Lanka Engineering Service Grade II/II in the
Southern Province (Electrical) until final determination of this Application;
(b) staying 1st to the 22nd Respondents from further recruitments Electrical
Engineers to the Sri Lanka Engineering Service Grade II/II (Electrical) until
final determination of this application;

24. The Petitioner is advised to states and therefore state that the aforesaid actions of
the Respondents amount to executive and/or administrative action within the
meaning of Articles 17 & 126 of the Constitution.

25. The Petitioner states that due to the said arbitrary acts of the 1 st to the 22nd
Respondents the Petitioner’s humiliation, pain in mind which effected the
adverse impact on the career of the Petitioner without affording opportunity get
promoted.

26. The Petitioner values the damages caused to him by the above acts of the 1 st to
22nd Respondents causing severe hardships, humiliation, pain in mind at
Rupees Ten Million (Rs10,000,000/=)

27. The Petitioner states that he has not invoked the jurisdiction of Your
Lordships' Court previously in respect of matters pleaded herein.

WHEREFORE the Petitioner prays that your Ladyships Court may pleased to

(a) grant leave to proceed with this application in terms of Article 12(1), 12(2)
and 14 I (g) of the constitution;
(b) Declare that the Petitioner's Fundamental Rights guaranteed under
Article 12(1), 12(2) and 14 1 (g) of the Constitution had been violated by

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 the Respondents;
(c) Quash the letter dated 20/08/2012 (P11) issued by the 20th Respondent;
(d) Declare that the Petitioner is entitled to the promotion of Electrical
Engineer of Sri Lanka Engineering Service Grade II/II with effect from
04/10/2000 with back wages, due seniority and other rights which the
Petitioner entitled;
(e) Direct 1st to the 22nd Respondents promote/absorb the Petitioner as
Electrical Engineer of the Sri Lanka Engineering Service Grade II/II , in
the Southern Province Provincial Council with effect from 04/10/2000
with back wages, due seniority and other rights which the Petitioner
entitled;
(f) Direct 1st to the 22nd Respondents make the acting appointment (Sri
Lanka Engineering Service Grade II/II Electrical of the Petitioner
permanent in the Southern Province Provincial Council with effect from
04/10/2000 with back wages, due seniority and other rights which
the Petitioner entitled;
(g) Declare and grant interim order directing the 1st to the 22nd Respondent
not to fill the existing Electrical Engineer vacancy of the Engineering
Service Grade II/II (Electrical) in the Southern Province Provincial
Council until final determination of this Application;
(h) Declare and grant interim relief preventing 1st to the 22nd Respondents
from further recruitments Electrical Engineers to the Sri Lanka
Engineering Service Grade II/II (Electrical) until final determination of
this application;
(i) Grant compensation in a sum of Rs 10, 000,000 (Ten Million);
(j) Grant cost;
(k) Such other and further relief as your Lordship’s Court shall deem fit;

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Attorney -at Law for the Petitioner

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