KULATUNGA VS. HON LOKUBANDARA

KULATUNGA VS. HON LOKUBANDARA

SUPREME COURT
J . A. N. DE SILVA, C. J .
AMARATUNGA, J . AND
IMAM, J .
S. C. (FR) APPLICATION NO. 229/2009
FEBRUARY, 8TH 2010.

Constitution-Articles 12(1), 17 and 126 (2) - Infringement of Fundamental Rights. - If a person alleges that his fundamental rights had been infriged or about to be infringed he shall file his application within one month thereof: - lex non cogit ad impossibilia.

The Petitioner invoked the jurisdiction of the Supreme Court alleging that his fundamental rights guaranteed under Articles 12(1), 17 and 126 of the Constitution had been violated.

At the hearing the Respondent took up a preliminary objection to the effect that the application filed by the Petitioner was out of time in terms of Article 126 of the Constitution and moved forthe dismissal of the Petitioner's Fundamental Rights application.

Held

(1) The rule in Article 126.of the Constitution is applied strictly, however in a fit matter the Supreme Court may allow an application to proceed even though one month has lapsed from the date of the infringement.

Cases referred to:

(1) Gamaethige v. Siriwardene and Others [I988] 1 S.L.R. 384
(2) Siriwardene v. Rodrigo [1986] 1 S.L.R. 384
(3) Jayaweera v. National Film Corporation [1995] 2 S.L.R. 123
(4) Ramanathan v. Tennakoon [1988] 2 CALR 187
(5) Edirisuriya v. Navaratnam [1985] 1 S.L.R. 100

APPLICATION for relief for infringement of fundamental rights.

S. A. Parathalingam, P.C. with Idroos for the Petitioner.

Manohara De Silva, P.C. with Ms. Pubuduni Wickremaratne for the 3rd Respondent.

Nerin Pulle, SSC for 2nd, 4th, 5th, 6th, and 9th Respondents.

Cur.adv. vult.

July 02nd 2010
J. A. N. DE SILVA CJ.

    The petitioner in this case was granted leave to proceed on the alleged violation of fundamental rights guaranteed under Article 12(1) of the Constitution of the Democratic Socialist Republic of Sri Lanka. Thereafter at the request of both parties several dates have been granted to explore the possibility of settling the dispute between the petitioner and the 3rd respondent.

    This application relates to the filling of the vacancy of the post of Director of Catering and House Keeping Services of Parliament of Sri Lanka.

    The above post became vacant on the 12th November 2005. The 3rd respondent was appointed to act in the said post and he does so even today. The Secretary General of Parliament called for application for the said post by placing an advertisement in the Sunday Observer and Silumina papers.

    Several applicants responded to the above advertisement and four people were summoned for an interview on 7/4/2006 includingthe petitioner and the 3'drespondent. The composition of the interview board was as follows: Former Secretary General of Parliament Mrs. P. Wijesekera - Chairperson. Assistant General Secretary (5th Respondent) Principal

Ceylon Hotel School (7th Respondent) and Chief Executive Officer of the Hotels Corporation ( 8th Respondent).

    The marks had been awarded under the following criteria at the said interview:-

Qualifications	=	20
Additional Qualifications	=	15
Experience	=	20
Personal Profile	=	30
Conduct & Testimonials	=	15
	=

    On the basis of marks allotted at the interview, the board has not considered the petitioner to be the most suitable person for the post in question, but has recommended the 3rd respondent for the job. This is evident from the documents marked R5 and R 5A. The Secretary General, who was the Chairperson in her affidavit, has stated that marks were given purely on merit and not for any extraneous considerations. She has vehemently denied bias or manipulation on the part of the interview board in awarding marks at any stage of the interview process. The petitioner not being satisfied with the interview process and the outcome of the interview petitioned the Presidential Investigation Unit

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