DR. PERERA V. JUSTICE PERERA AND 11 OTHERS

DR. PERERA V. JUSTICE PERERA AND 11 OTHERS

SUPREME COURT
DR. SHIRANI A..BANDARANAYAKE, J.,
WTNAYAKE P.C., J. AND
IMAM. J.
S.C. (F.R.) APPLICATION NO. 598/2008
JULY 5TH 2010

Fundamental Right - Constitution - Article 12(1) - Right to equality - All persons are equal before the law?

The Petitioner, a Senior Consultant of the Department of Secondary and Tertiary Education of the Faculty of Education, Open University of Sri Lanka, alleged that the purported directions of the 1st to 9th Respondents not to re-instate the Petitioner in the public service and not to release the Petitioner to the Open University until and unless the Petitioner pays to the State the cost of his foreign studies funded by the Government, are arbitrary, irrational and unreasonable and in violation of the Petitioner's fundamental rights guaranteed in terms of Article 12(1) of the Constitution.

Held:

(1) Equality before the law does not mean that all should be treated alike or that the same law should be applicable to all persons. What is meant is that equals should be treated equally and similar laws should be applicable to persons, who are similarly circumstanced.

(2) Article 12(1) of the Constitution postulates that all persons, who are similarly circumstanced should be treated alike. Accordingly, the doctrine of equality before the laws would not be applicable to persons, who are not similarly circumstanced. Unequals cannot be treated equalIy, not equals be treated unequally.

(3) Every wrong decision cannot and would not attract the constitutional remedies guaranteed under the fundamental rights

incorporated in the Constitution. In reference to Article 12[1) of the Constitution it would be necessary to show that there had been unequal treatment and therefore discriminatory action against the Petitioner.

(4) The decision taken by the Public Service Commission with regard to the Petitioner in no way could be categorized as arbitrary, unlawful and irrational and is not in violation of the Petitioner's fundamental rights guaranteed in terms of Article 12(1) of the Constitution.

Cases referred to :-

(1) Snowden v. Hughes (1943) 321 U. S. 1, 64 S. Ct. 297, 88L. Ed. 497 (1944)

(2) Ram Krishna Dalmia v. Justice Tendolkar A. I. R. 1958 S.C. 538

APPLICATION under Article 12(1) of the Constitution.

J. C. Weliarnuna with Maduranga Ratnayake for Petitioner.

Indika Demuni de Silva, D S. G. for 10'th - 12th Respondents.

Cur.adv.vult

March 10th 2011

DR. SHIRANI A. BANDARANAYAKE, J.

    The Petitioner, a Senior Consultant of the Department of Secondary and Tertiary Education of the Faculty of Education, Open University of Sri Lanka (hereinafter referred to as the Open University) at the time of filing this application, alleged that the purported directions of the 1st to 9th respondents not to re-instate the petitioner in the public service and not to release the petitioner to the Open University until and unless the petitioner pays to the State the cost of his foreign studies funded by the Government, are arbitrary, irrational and unreasonable and in violation of the petitioner's fundamental rights guaranteed in terms of Article 12(1) of the Constitution, for which leave to proceed was granted by this Court.

    The facts of this application, as submitted by the petitioner, albeit brief, are as follows:

    The petitioner had obtained his Degree of Bachelor of Arts (Hons.) from the University of Peradeniya in 1985 (P2a). Thereafter he had obtained his Post Graduate Diploma in Education from the University of Colombo in 1993 (P2b). He had obtained two Degrees in Master of Education; one in 1996 from the University of Colombo (P2c) and the other in 1999 from the University of Wollongong, Australia (P2d). Later in 2004, he had obtained the Degree of Doctor of Education from the same University in Australia (P2e). The petitioner had also obtained a professional qualifica

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