Obeyesekere, J

1) There are two issues that arise for determination in this application. The first is whether the post of Supplies Manager in Lanka Phosphate Limited, a State owned enterprise and the 5th Respondent to this application, is a post that has been approved by the Department of Management Services. The second issue is, if so, is the failure on the part of the 5th Respondent to pay the Petitioner the salary that is payable for the post of Supplies Manager violative of the fundamental rights of the Petitioner guaranteed by Article 12(1) of the Constitution.

The case for the Petitioner

2) The Petitioner holds a degree in Business Management from the University of Kelaniya. Having served as an audit supervisor in the private sector, the Petitioner had joined the 5th Respondent as a Supplies Officer (Executive Grade VI) with effect from 3^rd January 2005.

3) In November 2013, the Petitioner had submitted a memorandum to the Chairman of the 5^th Respondent in which he requested that he be appointed to the post of Supplies Manager (Executive Grade II). In the said Memorandum, the Petitioner had stated that:

(a) In the absence of a Supplies Manager, he has performed the functions in that office although he was only the Supplies Officer, thus ensuring the effective functioning of the Supplies Division;

(b) Although he is holding a post in Executive Grade VI, his professional qualifications and experience are sufficient for him to be appointed to a post in Executive Grade II.

4) Having taken into consideration the said request of the Petitioner and his experience, commitment and expertise, the Acting General Manager of the 5th Respondent had submitted a Memorandum to the Board of Directors in December 2013 [the Board] recommending the appointment of the Petitioner to the post of Supplies Manager, and sought the approval of the Board to appoint the Petitioner to the post of Supplies Manager.

5) The Board, having considered the said Memorandum had recorded its decision in the following manner:

“The Chairman brought to the notice of the Board the necessity and the importance of re-establishing the post of ‘Supply Manager’ whereas the existing post is titled as ‘Supply Officer’, due to the reason that supply duties were very critical since millions of rupees had been spent annually for the procurement of goods and services including machinery and spare parts. Therefore, the Board noted the necessity for handling the said duties by a Senior Manager.

The Board also noted that Mr. Abeysiri had been covering all supplies duties under the direct supervision of the General Manager and had been working 9 years since January 2005. It was also noted that Mr. Abeysiri was performing well as Supplies Officer in the best interests of the Company.

The Board unanimously granted approval for the promotion of Mr. Abeysiri to the post of Supplies Manager with effect from 1st January 2014 and for Mr. Abeysiri to be placed on the salary step of Rs. 38,530 subject to the approval of the Department of Management Services.”

6) There are three important matters that are borne out by the above decision of the Board of the 5^th Respondent.

7) The first is, as at that time, the post of ‘Supplies Manager’ did not exist in the 5th Respondent and hence, a new cadre position had to be created for which the approval of the Department of Management Services was required. The Petitioner has disputed this position and claimed that the post of ‘Supplies Manager’ formed part of the organisational structure of the 5th Respondent at that time. However, other than submitting two undated flow charts said to contain the organisational structure, the Petitioner has not submitted any other material to substantiate his position. I am therefore satisfied that the position of the 5th Respondent contained in the said Memorandum reflects the correct position in this regard.

8) The second matter that is borne out by the said decision is that the Board was mindful that its approval alone was not