IN THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application under and in terms of Article 126 of the Constitution.

Peduru Arachchige Janaka Pushpakumara (LL 27759), No.29, Sisil Uyana, Panamura Road, Thelbaduara, Embilipitiya.

Petitioner S.C.(F.R.) Application No: 452/2011 Vs.

1. Director General, (Electric and Electronic Division)

Sri Lanka Navy Headquarters, Colombo 01.

2. Director General, (Personnel and Training)

Sri Lanka Navy Headquarters, Colombo 01.

3. Commander of the Navy, Sri Lanka Navy Headquarters, Colombo 01.

4. Lieutenant Commander T.R.

Dahanayake, Sri Lanka Navy Headquarters, Colombo 01.

5. Hon. Attorney General, Attorney General’s Department, Colombo 12 Respondents Before: P. Padman Surasena, J.

Janak De Silva, J.

Mahinda Samayawardhena, J.

Counsel: Saliya Pieris PC with Susil Wanigapura for the Petitioner.

Anusha Jayatilleke SSC for the Respondents.

Argued On: 02.03.2021 Decided On: 06.07.2021 Janak De Silva J.

The Petitioner was a Leading Electrical Mate in the Sri Lanka Navy. He was enlisted on 27^th May 1998.

According to Regulation 7 of the Seaman’s Enlistment and Service Regulations 1950 promulgated by the Minister of Defence in terms of section 161 of the Navy Act No. 34 of 1950 as amended, the period of original enlistment of a seaman is twelve years.

In terms of Regulation 8, a seaman, may, before the expiry of the period of his original enlistment, be re-engaged for service in the Regular Naval Force for a further period of not exceeding twenty years.

The Sri Lanka Navy issued a message dated 24^th September 2009 (P5) ordering all the seamen who were enlisted as 82^nd and 83^rd intakes to apply for the re engagement to the Regular Naval Force before the expiry of their initial service period of twelve years.

The Petitioner belonged to the 83^rd intake and hence applied for re-engagement by application dated 26^th December 2009 (P6). Although he did not receive any reply to the application, he continued to serve in the Regular Naval Force for another one year and four months after his initial service period was completed on 27^th May 2010. However, he was not given any promotions and salary increments during this period.

Since there was no response to his application to be re-engaged, the Petitioner preferred an appeal to the 3^rd Respondent by letter dated 25^th April 2011 (P7) to allow him to participate in the medical tests to re-engage in the services.

On 29^th August 2011, the Petitioner received a letter sent by the Navy Head Quarters (P8) by which he was informed that he has been discharged with effect from 1^st September 2011 in terms of Regulation 15(1)(v) of the Seaman’s Enlistment and Service Regulations 1950 which reads:

“15(1) The Commander of the Navy may discharge a seaman –

(v) who has completed his engagement, that is to say, the period of original enlistment or the period of re-engagement; …”

The Petitioner contends that the discharge from the Sri Lanka Navy and the refusal to re-engage him is arbitrary, unreasonable and discriminatory and violates the fundamental rights of the Petitioner enshrined in Article 12(1) of the Constitution. Regulation 15(1) of the Seaman’s Enlistment and Service Regulations 1950 specifies several instances where a seaman may be discharged by the Commander of the Navy. This appears to give a discretion to the Commander of the Navy. Regulation

15(1)(v) applies in the event of a seaman who has completed his engagement.

However, when it comes to the decision of re-engagement, Regulation 10 of the Seaman’s Enlistment and Service Regulations 1950 provides the criteria to be considered. It reads:

“10. (1) An extension of service in the Regular Naval force beyond the period of original enlistment referred to in Regulation 7, may be allowed to a seaman who –

(a) Is efficient, well-behaved and recommended by his Commanding Officer, and (b) Who has passed a medical test to the satisfaction of the Commander of the Navy”

The Respondents have not taken up the positio