MENAKA WIJESUNDERA, J

The Petitioner in the instant matter is a resource person at the Teacher Professional Development Centre, Samanthurai, and alleges that his fundamental rights have been violated under Article 12 (1) of the Constitution due to the appointment of the 11th Respondent to the post of Director- Physical Education at the South-Eastern University of Sri Lanka.

The post of Director-Physical Education at the aforementioned university had been advertised on 26th of November 2020 which had been marked and produced as P10.

The Petitioner had submitted his application on 30th of December 2020 (P11) along with two other candidates. He claims that the other 2 candidates namely the 11th and the 12th Respondents, had subsequently withdrawn their applications.

The interview had been first scheduled on the 24th of March 2021 but it had been thereafter postponed to the 22nd of April 2021 and the 11th Respondent, who had withdrawn his application had also been present at the interview.

Thereafter, the Petitioner had been informed that the 11th Respondent who had obtained 76% of the marks had been selected for the above mentioned post.

Therefore, the Petitioner contends that the 11th Respondent who did not comply with the timeline for the application lacked the postgraduate diploma in physical education and the work experience which was required. Therefore, he claims that the selection of the 11th Respondent was irregular and that it violated Article 12(1) of the Constitution.

The Petitioner claims that he possesses:

(i) A Diploma in Physical Education.

(ii) B.Ed. and M. Ed. Degrees.

(iii) Reading for a PhD, and

(iv) 23 years of experience in physical education instruction and training.

The Respondents in their written submissions and oral submissions claimed that the appointment process of the 11th Respondent had been transparent and conducted according to the guidelines of the University Grants Commission (UGC).

They further submit that the 11th Respondent had submitted his application through the Secretary of the Ministry of Education as required by the advertisement, and that this is the proper procedure for applicants employed in government departments. They also submit that an advance copy of the 11th Respondent had been received and that the marking scheme at the interview also had been very objective, based on UGC laid-down guidelines and the 11th Respondent had qualified to receive the highest marks among all the candidates. The Respondents further claim that the university is required to appoint the most suitable candidate for the post and the Petitioners grievance amounts to mere disappointment at the outcome of the interview. Therefore, they claim that there was no discrimination or a violation of any Constitutional right of the Petitioner.

When this matter was supported for leave this court has granted leave to proceed under Article 12 (1) of the Constitution on 15.03.2022.

Upon considering the submissions of both parties both orally and written, I observed that the advertisement which had been marked as P10 clearly indicates that all candidates employed in government institutions must forward their applications through the heads of their institutions, while also allowing advanced copies to be sent directly. The 11th Respondent being an A Level teacher under the Ministry of Education had taken steps to send an advanced copy followed by the official application later forwarded to the Ministry of Education.

It has to be emphasized that the requirement to forward applications through institutional heads is a procedural safeguard intended to verify the applicant's current employment status and conduct. However, when the candidate proactively complies with the advertisement by sending an advance copy directly, it fulfills the substantive purpose of the requirement.

In this context, the acceptance of the application of the 11th Respondents by the university authorities cannot be faulted. The requirement to forward the application through