P. Padman Surasena, CJ.

Learned Counsel for all parties agree that it would suffice for this Court to pronounce one judgment in respect of all three Applications bearing numbers SC/FR/80/2019, SC/FR/81/2019, and SC/FR/82/2019. Therefore, this Judgment must apply to SC/FR/80/2019, SC/FR/81/2019, and SC/FR/82/2019.

Background.

The Petitioners of all these Applications have joined Sri Lanka Police as Sub Inspectors of Police: the Petitioner in SC/FR/80/2019 has joined on 19-01-1981; the Petitioner in SC/FR/81/2019 has joined on 28-01-1980; the Petitioner in SC/FR/82/2019 has joined on 20-01-1985.

The 12th Respondent in all these Applications has joined the Sri Lanka Police on 28-01-1980 as a Sub Inspector. After completing 8 years of service in the rank of Sub Inspector, the 12th Respondent was promoted to the rank of Inspector of Police in 1988. Thereafter, in the year 1994, the 12th Respondent was promoted to the rank of Chief Inspector of Police following an interview process. The 12th Respondent claims that he is nearly 5 years senior to the Petitioners in all these Applications.

In 2003, applications were called from suitable persons to fill the vacancies in the posts of Assistant Superintendent of Police (ASP). Both the Petitioners and the 12th Respondent had participated in that selection process. The Petitioners of these three Applications were successful and hence were promoted as ASPs. The 12th Respondent was not successful in securing an appointment as an ASP through that process.

There was no dispute that the 12th Respondent of the instant case was made the 3rd Respondent in the Fundamental Rights Application bearing No. SC/FR/706/1999. The complaint made (by the petitioner against the 3rd Respondent in SC/FR/706/1999) was in relation to some of the official duties the 3rd Respondent in SC/FR/706/1999 was involved in, in his capacity as the Officer-in-Charge of the Terrorist Investigation Division which was based in Colombo. As the case number SC/FR/706/1999 denotes, this case was filed in the year 1999.

The Supreme Court pronounced the Judgment in SC/FR/706/1999 on 13-01-2000. It is a short Judgment and hence could be reproduced below:

                  “Learned State Counsel submits that the petitioner could have received the injuries when he was in custody the Counter Subversive Unit in Vavunia. We find that the injuries reported by the JMO Colombo is consistent with the story of the petitioner.

                  We find that the violation of Article 11 is established.

                  We direct the State to pay the petitioner Rs. 50,000 (Fifty Thousand) as compensation.

                  Petitioner’s Counsel informs Court that he is not pursuing the alleged violation of Articles 13(1) and 13(2).” This Judgment is marked 12 R(2b) in SC FR 80/2019.

In 2004, the 12th Respondent has filed SC/FR/377/2004 to challenge his non-promotion to the rank of ASP through the selection process that took place in 2003. The said non-promotion of the 12th Respondent was due to the fact that he was made the 3rd Respondent in SC/FR/706/1999.

In the meantime, the 12th Respondent has also lodged an appeal to the Inspector General of Police (IGP) complaining about the same grievance. The litigation commenced by the 12th Respondent in SC/FR/377/2004 came to an end with the following Order pronounced in that case:

                  “Learned Counsel for the Petitioner submits that after this application was filed the Petitioner has received information on 20.08.2004 that he has been promoted to the rank of Assistant Superintendent of Police. In the circumstances, Counsel for the Petitioner does not wish to proceed with this application. The application is dismissed.”

Petitioner’s Case.

Let me now turn to the grievance put forward by the Petitioners in these three Applications. Since the complaints made by all three Petitioners are the same, I would for the purpose of this Judgment only focus on the brief in SC/FR/80/2019. The Petitioner in SC/FR/80/2019 was promoted as an Inspector of Police on 01-01-1985. He was then promoted to the rank of Chief Inspector on 01-01-1994. He was thereafter promoted to the rank of ASP on 01-01-2003.

The Petitioners state in their Petitions that they were placed above the 12th Respondent in the seniority list of ASPs.

The Petitioner in SC/FR/80/2019 was then promoted to the rank of Superintendent of Police on 01-01-2011. He has produced the seniority list of the Superintendents of Police marked P2. He further states that even in the seniority list of the Superintendents of Police, the 12th Respondent was placed below them.

Thereafter the Petitioner in SC/FR/80/2019 was promoted to the rank of SSP on 01-01-2016. The seniority list of the SSPs, has been produced marked P3.

Issue in the Instant Case

The Petitioners’ real complaint in the instant Applications is premised on the basis of their observation that the 12th Respondent has been placed above them in the seniority list of the Senior Superintendents of Police. This has happened as the promotion of the 12th Respondent to the post of Senior Superintendent of Police (SSP), has been backdated to 12-01-2013 by the Letter dated 08-04-2016. The Petitioner has produced this Letter marked P4. Marked P4 in SC/FR/80/2019

Thus, it is the complaint made by the Petitioners in the instant cases that the backdating of the appointment of the 12th Respondent as SSP is an arbitrary act which has no justification. They advanced this argument on the basis that all of them got their ASP promotions with effect from 01-01-2003. They further argue that in such a scenario, their promotions as SSPs, must also be backdated to the same effective date as the 12th Respondent.

All three Petitioners have lodged appeals before the Administrative Appeals Tribunal (AAT). The appeal filed by the Petitioner of SC/FR/80/2019 has been produced marked P7 with his Petition. This appeal is dated 01-11-2017. It is the submission of the learned Additional Solicitor General that this appeal should have been rejected as it is an appeal filed out of the time provided by Section 4(1) Administrative Appeals Tribunal Act. The said Section is as follows:

                  “Any public officer or police officer as the case may be, aggrieved by an order or decision made by the Public Service Commission or the National Police Commission, as the case may be, may prefer an appeal in writing to the Tribunal within four weeks from the date of receipt of such order or decision.”

Thus, as pointed out by the learned Additional Solicitor General, the AAT, despite the statutory time bar against entertaining appeals of that nature, had proceeded to pronounce the Order dated 18-10-2018. I observe that in the said appeal, the Petitioner in SC/FR/80/2019 has only prayed for a direction to backdate his promotion as a SSP to take effect from 01-12-2013. The Petitioner in SC/FR/80/2019 has put forward this prayer on the basis that his promotion also must be backdated if the authorities had backdated the promotion of the 12th Respondent to take effect from 01-12-2013. However, the Order made by the AAT could best be understood from the following excerpt taken from the said Order:

                  “This Tribunal directs the NPC and the ICP to cancel the CRTM dated 08.04.2016 by which Mewan Silva’s Mewan Silva is the 12th Respondent in the instant cases. date of appointment has been ante-dated to 12.01.2003, and to revert his appointment to his original date and ranking as ASP and to readjust his ranking SP and SSP accordingly.

                  Subject to the above decision, the appeals of the three appellants are dismissed.”

It is the submission of Mr. Chamith Senanayake appearing for the 12th Respondent that the AAT had proceeded to quash the backdating of the promotion of the 12th Respondent as SSP without making him a party to the proceeding. The correctness of this argument is apparent on the face of the record and the Order of the AAT.

However, neither the National Police Commission nor the IGP has given effect to the Order of the AAT. This is the primary grievance complained by the Petitioners in this proceeding.

The 12th Respondent has explained and placed material before this Court, to justify the backdating of his promotion as SSP. He has done this by his Affidavit dated 02-04-2015. A copy of the appeal he had submitted to the IGP has been annexed to his Affidavit marked 12R9. The 12th Respondent has stated in the said appeal that although 18 officers from the seniority list (number 1 – 18) and thereafter another batch of officers (i.e. from number 19 – 45) in the same seniority list were promoted as ASPs with effect from 01-01-2003 on their seniority and merit, his name was not among the list of officers who were promoted as ASPs. Upon making inquiries the 12th Respondent had learnt that the presence of FR Application bearing No. 706/1999, was the cause for depriving him of his promotion as an ASP.

It is the submission of the learned Counsel for the 12th Respondent that it was OIC Chettikulam Police Station who had arrested a person as a terrorist suspect who was thereafter detained in Vavuniya Police Station Terrorist Investigation Unit. The allegation in that case was that the officers attached to the Terrorist Investigation Unit of Vavuniya Police Station had assaulted the suspect. The 12th Respondent was functioning as the OIC of the Terrorist Investigation Division in Colombo. OIC Chettikulam Police Station was named as the 1st Respondent in SC/FR/706/1999. His name is Chief Inspector Ananda Alwis. Despite this, the IGP and the National Police Commission had promoted the said 1st Respondent in SC/FR/706/1999 (CI Ananda Alwis) as an ASP with effect from 01-12-2000. The 12th Respondent had complained to the IGP that he also should have been promoted as ASP with effect from 01-12-2000 if OIC Chettikulam (CI Ananda Alwis) was given the same promotion while the pendency of SC/FR/706/1999. It was the complaint of the 12th Respondent to IGP that this had happened due to the lapses on the part of the officers of the Legal Division of the Police Headquarters. The 12th Respondent had further complained to the IGP that the officials of the National Police Commission were misled by this wrong assertion made by the officers attached to the Legal Division of the Police Headquarters.

Upon the 12th Respondent filing SC/FR/706/1999, the National Police Commission had agreed to promote him as an ASP with effect from 01-01-2003. The 12th Respondent had agreed to that proposal and informed the same to the Supreme Court. This is reflected in the Order dated 27-08-2004 pronounced in SC/FR/377/2004 which the 12th Respondent has produced marked 12R6. Marked 12R6 in SC/FR/80/2019.

 The effective part of the said Order is as follows:

                  “Learned Counsel for the Petitioner submits that after this application was filed the Petitioner has received information on 20.08.2004 that he has been promoted to the rank of Assistant Superintendent of Police. In the circumstances, Counsel for the Petitioner does not wish to proceed with this application. The application is dismissed.”

During the pendency of SC/FR/377/2004 filed by the 12th Respondent to challenge his non-appointment as ASP, 13 officers who were promoted as ASPs with effect from 01-01-2003, had filed the FR Application No. 472/2002 in the Supreme Court praying that their promotions be backdated to take effect from 01-12-2000. As a result, in addition to the 13 officers who stood as the Petitioners in that case (i.e. SC/FR/472/2002), the National Police Commission had backdated the appointments of officers from Number 1 – 96 in the seniority list of the Assistant Superintendents of Police, to take their appointments as ASPs with effect from 01-12-2000. It was his complaint to the IGP that it was not possible for him to get involved in that case (SC/FR/472/2002) as he had then been deprived of the promotion of ASP as at that time. It was his complaint that there were several officers who are junior to him, who had also got the benefit of having their promotions as ASPs backdated with effect from 01-12-2000.

Furthermore, the 12th Respondent has also complained that one ASP Liyana Pathirana also filed FR Application No. 232/2009 and got his (ASP Liyana Pathirana’s) promotion as ASP, (which was to take effect from 01-01-2003), backdated to take effect from 01-12-2000.

Indeed, pursuant to this appeal, the IGP has decided to address the grievance of the 12th Respondent. This is reflected in the Letter dated 19-08-2015 which the 12th Respondent has produced marked 12R10. The IGP has proceeded to rectify an erroneously made entry which had deprived the 12th Respondent of his promotion. This is reflected in the last paragraph of the said Letter (12R10), Letter produced marked 12R10 in SC/FR/80/2019. which is reproduced below.

                 

                 

                  It was pursuant to this rectification made by the IGP as per 12R10 that the National Police Commission has decided to backdate the promotion of the 12th Respondent as an ASP to take effect from 12-12-2000. Accordingly, the promotion as Superintendent of Police granted to the 12th Respondent was also backdated to take effect from 01-12-2008. This is reflected in the RTM 684 which the 12th Respondent has produced marked 12R11.

Thus, I observe that while the Petitioners’ promotions as ASPs have been granted to take effect from 01-01-2003, the promotion of the 12th Respondent as ASP has been backdated to take effect from 01-12-2000.

The Petitioners have not challenged RTM 684 (12R11). This document (12R11) is dated 19-02-2016. It is a Radio Telephone Message and therefore has been circulated in all police stations. There is no justification that the Petitioners should not have known that. However, they had waited until the time they had seen the name of the 12th Respondent being placed above them in the seniority list of the Senior Superintendents of Police as at 25-09-2017, Marked as P3 in SC/FR/82/2019. to file these cases to challenge the very thing that was communicated by the said RTM 684.

Let me at this stage reproduce an excerpt from the judgment in SC/FR/365/2020. Hon. Samayawardhena, J. proceeds to explain under the sub title “Article 12(1) violation” in that judgment, the application of Article 12(1) of the Constitution in this type of case:

                  “Article 12(1) violation

                  Article 12(1) of our Constitution reads as follows:

                  All persons are equal before the law and are entitled to the equal protection of the law.

Article 12(1) of the Constitution seeks to guarantee two fundamental principles of equality: equality before the law and equal protection of the law. While both principles promote equality and non-discrimination, equality before the law emphasizes the uniform application of laws, whereas equal protection of the law emphasizes the uniform application of legal protections and remedies.

                  It must also be mentioned that equality before the law and equal protection of the law cannot be understood or applied in a purely abstract or strictly literal sense. Not all persons shall be treated alike, but all persons similarly circumstanced shall be treated alike. Equality must be ensured among equals, not unequals. Any attempt to ensure the latter would defeat the very purpose that Article 12(1) seeks to achieve. Classification among persons in itself does not violate Article 12(1), provided that the classification is not arbitrary but founded on an intelligible differentia and bears a rational nexus to the objective it seeks to achieve. What Article 12(1) seeks to prevent is unjustified differential treatment within such classifications. (Palihawadana v. Attorney General [1978-79-80] 1 Sri LR 65 at 68-69, Wasantha Disanayake and Others v. Secretary, Ministry of Public Administration and Home Affairs and Others [2015] 1 Sri LR 363 at 367, Thilak Lalitha Kumara v. Secretary, Ministry of Youth Affairs and Skills Development and Others [2015] 1 Sri LR 369 at 376-377)

In Ferdinandis and Another v. Principal, Vishaka Vidyalaya and Others (SC/FR/117/2011, SC Minutes of 25.06.2012), Bandaranayake C.J. explained that, in order to succeed in proving a violation of Article 12(1), it is necessary for the petitioners to not only establish that they had been treated differently from others, but also that such treatment was so different from others who were similarly circumstanced, and there were no grounds to differentiate them from the petitioners.

Our Constitution has clearly spelt out the concept of equality before the law and there are numerous instances where that right had been accepted and upheld. In the process this Court has also noted that if a person complains of unequal treatment the burden is on that person to place before this Court material that is sufficient to infer that unequal treatment had been meted out to him. Accordingly, it is necessary for the petitioners not only to establish that they had been treated differently from others, but also that such treatment was so different as the others were similarly circumstanced and there were no grounds to differentiate them from him. …”

The above excerpt is self-explanatory. Although the learned President’s Counsel for the Petitioners sought to argue that the backdating of the promotion of the 12th Respondent as an ASP over the Petitioners is arbitrary to the detriment of the Petitioner’s seniority, I am unable to agree with that argument. Having regard to the circumstances set out above, I see that there is ample justification for backdating the promotion of ASP granted to the 12th Respondent.

The Petitioners do not say that they also have appealed to the IGP on the same lines as the 12th Respondent agitating to have their promotions backdated with effect from 01-12-2000. Therefore, there is no proof to hold that the Petitioners and 12th Respondent are similarly circumstanced persons.

I have already adverted to above, the fallacies surrounding the pronouncement of the Order by the AAT. Therefore, I am unable to agree with the learned President’s Counsel for the Petitioners that it was wrong for the IGP or the National Police Commission in not enforcing the Order pronounced by the AAT.

Admittedly, the case of the Petitioners depends on the AAT Order and starts from the pronouncement of that Order onwards. However, as I have already stated above, there is justification for the backdating of the promotion of the ASP given to the 12th Respondent. Therefore, I am satisfied that the action of backdating the promotion of the 12th Respondent as ASP is not part of an arbitrary action on the part of the IGP and/or the National Police Commission.

Accordingly, I hold that the Petitioners are not entitled to succeed with their Petitions. I refuse to grant the declarations prayed for in, the Petitions. I direct that the Petitions bearing numbers SC/FR/80/2019, SC/FR/81/2019 and SC/FR/82/2019 must stand dismissed without costs.

Chief Justice

Mahinda Samayawardhena, J.

I agree.

M. Sampath K. B. Wijeratne, J.

I agree.