LEGITIMATE EXPECTATION
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The Petitioner, a university academic, applied for the post of Senior Lecturer Grade II advertised by the 1st Respondent. He was appointed instead as Lecturer (Probationary) by letter P8, which stated that he would be upgraded to Senior Lecturer Grade II upon approval by the University Grants Commission (UGC). Despite repeated representations, the appointment was never regularized.
A university sub-committee and the Council later acknowledged an administrative error and recommended rectification. The University Services Appeals Board (USAB) too directed his appointment as Senior Lecturer Grade II with effect from the original date of appointment, but the respondents failed to implement the decision. The Petitioner invoked the jurisdiction of the Supreme Court under Articles 12(1) and 14(1)(g). Held
Failure to act on binding administrative recommendations and a statutory appellate order constitutes arbitrary and unequal treatment, offending the guarantee of equality and equal protection under Article 12(1) of the Constitution.
Perera v. Cyril Ranatunga [1993] 1 Sri L R 1 followed;
Dicey and Jennings cited on the doctrine of equality before the law.
The petitioner’s right to engage in his lawful academic profession under Article 14(1)(g) was infringed when the respondents, by prolonged inaction, denied him salary increments, sabbatical entitlements, and professional recognition inherent to the advertised post.
Perera v. Jayawickrema [1985] 1 Sri L R 285 and Vasudewa Nanayakkara v. Choksy (SC FR 209/2007, SC Minutes of 13.10.2009) applied; Nagle v. Feilden [1966] 1 All E.R. 689 cited.
A legitimate expectation arose from the express representation in letter P8 that the petitioner would be placed as Senior Lecturer Grade II; the respondents’ failure to honour it without justification was arbitrary.
Ariyarathne v. IGP [2019] 1 Sri L R 100 considered; Paul Craig, Administrative Law (6th ed.) referred to.
The case does not involve a challenge to an academic assessment but to administrative inaction, and hence falls within the Court’s jurisdiction under Article 126.
Dr. Karunananda v. Open University of Sri Lanka [2006] 3 Sri L R 226 distinguished.
SUPREME COURT.
S.C. (FR) No. 169/2024 - S. Malavipathirana, No.37A, Rupasiri Mawatha, Mirihana, Nugegoda, Vs. Sabaragamuwa University of Sri Lanka, PO Box 02, Belihul Oya. - Before : A. L. Shiran Gooneratne, J. Achala Wengappuli, J. Menaka Wijesundera, J - decided on: 13.10.2025
MENAKA WIJESUNDERA J.
The Petitioner in the instant
matter has sought
a declaration that the 1st to the 27th respondents
have violated his fundamental rights under Article 12(1) and 14(1) (g) of the
Constitution by failing to face him in the post of senior lecturer Grade II with effect from 06.04.2009, in the University of Sabaragamuwa.
When this matter was supported for leave, this court has
granted leave under Article 12(1) and 14(1)(g)
of the Constitution against 1st to the 27th respondents.
The Petitioner in the instant matter have graduated from
the University of Peradeniya obtaining a special degree in Chemistry in the
year 1994. Thereafter
he had obtained
a MPhil from the Post Graduate Institute
of Science in Peradeniya University in 2001. And also
have his PhD in the same University in 2017.
Thereafter, in February
2021 he had earned his Professorship.
The Petitioner is presently serving in the University of
Sabaragamuwa as a Professor in the Department of Physical Sciences and
Technology.
On 04.01.2009, the 1st Respondent
have called for applications for the post of Senior Lecturer Grade I/II for the
Department of Physical Sciences and Technology in the Faculty of Applied
Sciences at the Sabaragamuwa University. The petitioner had applied to the said
post.
The Petitioner applied for the position of Senior Lecturer
Grade II, despite it being
160 km from his residence, with a legitimate expectation
of better career prospects. Thereafter, the petitioner had been recruited by
the University of Sabaragamuwa by
letter dated 24.03.2009 for the post of Lecturer (Probationary) subject to the condition that he will be recruited
to the post of Senior Lecturer
Grade II after
obtaining the approval
of the University Grants Commission which is the 27th respondent.
The letter has been marked as P8.
Therefore, the petitioner states that although
he assumed duties
in the capacity of Lecturer (Probationary) on 06.04.2009 he had
reasonable expectations to be upgraded to the post of Senior Lecturer Grade II
which was the post which had been advertised. He further says that although P8
indicated to him that he would be
considered to the Senior Lecturer Grade II in due course, 1st to the 27th
respondents have failed to do so, despite
many reminders by him, which had
been marked and produced as part and parcel of the petition.
Paul Craig on ‘Administrative Law’ (6th Edition)
at page 686:
“The concept of legitimate expectations should play the same general
rule in this type of cases, as in relation to intra vires
representations. It is a necessary, but not sufficient, condition for the
representation to bind the public body. Reasonableness of reliance is a
necessary condition for a legitimate expectation. It might be objected that a representee could never have a
“legitimate” expectation if the representation was ultra vires. This is,
however, merely a restatement of the general rule that ultra vires
representations cannot ever bind, which is the very question in issue.”
The above clearly indicates that reasonableness of
reliance is a necessary condition for a legitimate expectation. In the case at
hand, granting of the position and acceptance of the said post of Lecturer
(Probationary) by the Petitioner on 06.04.2009, with the legitimate expectation
of being upgraded to the post of Senior Lecturer Grade II. No reasonable
reliance can be placed on such decisions. It is to be noted that at this stage,
the post of Lecturer (Probationary) was not advertised but only the post of Senior Lecturer
Grade II.
In Ariyarathne and Others v Inspector General
of Police and Others (2019) 1 Sri LR 100 the Supreme Court held that,
“the law, as it presently
stands, is that an assurance
given ultra vires by
a public authority, cannot found a claim of a legitimate expectation based on that assurance. But it has to be recognised that there
may be many instances where a petitioner who relies on an assurance given by a
public authority or one of its officials, reasonably believed that the public
authority or official who gave it to him was acting lawfully and within their
powers. It is also often the case that an individual who deals with a public
authority will find it difficult to ascertain the extent of its powers and
those of its officials. In such cases, much hardship will be done to an individual
who bona fide relies on an assurance given to him by a
public authority or one of its officials and is later told the assurance he
relied on and acted upon, sometime
with much effort and at great cost to him, cannot be given effect to because of
a flaw regarding its vires. In such instances, the principle
of legality comes into conflict with the principle of certainty and, the law as it stands now, is that the illegality of the assurance
will defeat the value of
certainty which contends that the assurance should be given effect."
Petitioner also states that he resigned from a senior
position in a public Research Institute close to his residence area with the
expectation of receiving the position of
Senior Lecturer Grade II and that the Head of the Department of Physical
Sciences and Technology and the Dean of the faculty
had endorsed all his
requests made to the relevant authorities, those endorsements have said that he
had contributed immensely
to enhance the academic quality
of the department.
The petitioner has stated that all his requests by the 2nd respondent had been virtually
overlooked but on 04.10.2016 the 2nd respondent
had replied to the petitioner stating that his request could not be granted
because the UGC has given approval to applicant to the post of lecturer
(probationary) in the first instance and not to the post of senior lecturer
Grade II. Therefore, he has pleaded that from 2009 up to 2016 he had
been stagnating in the capacity of lecturer (probationary) due to the inactions
of the respondents.
Thereafter, in the year 2017, the head of his department
had written to the 2nd respondent
requesting they resolve the issue of the petitioner in a justifiable manner and
have recommended to appoint an academic committee to appraise the
qualifications of the petitioner, to provide recommendation to the 27th respondent for the petitioner to be
place the position of senior lecturer Grade II. Thereafter, a council
sub-committee comprising of four members had been appointed to go into this
matter. The sub-committee has evaluated the situation and forwarded a report.
The report had recommended to the UGC to place the petitioner in the capacity
of senior lecturer Grade II with
effect from the date of the initial
appointment considering the academic and professional qualifications of
UGC circular 721. It has further recommended that the 2nd
respondent must write to the UGC a mistake they have committed at
the initial stage and to obtain approval of the UGC if required and not to
commit any more mistakes of this nature.
The said council paper of sub-committee had been marked
and produced as P19
(a) and P19 (b) to the petition.
The said report had been tabled in the council
on 22nd
of December 2017 and
the said proceeding had been marked as P20.
Therefore, based on these recommendations of the
sub-committee, petitioner has requested again by his letter dated 31.07.2018 and 12.03.2019 to the UGC to
place the petitioner in the capacity of senior lecturer Grade II as the
committee have pointed out the mistake done by the university. But the 1st respondent had refused to
accommodate his request in view of the decision taken by the UGC by letter
dated 04.10.2016.
Therefore, he says that the 1st and
the 2nd respondents had deliberately and
willfully neglected to act on the recommendations of the sub-committee and the
council of the university. Due to this inaction of the 1st
and 2nd respondent the
petitioner had thereafter gone before the University Services Appeal Board in 2020. The appeal board by the order dated
26.10.2022 recommended the 1st respondent
to place the petitioner in the capacity of senior lecturer Grade II with effect
from the initial date of appointment.
It has to be observed that USAB at page 7 of their order
has stated that UGC approval is not required to appoint the petitioner to the
position of senior lecturer Grade II.
The petitioner had written to the 26th and 27th respondents
requesting them to implement the recommendations of the USAB (28.4.2023, 04.08.2023, 5.10.2023 and 18.12.2023). Despite several follow-up letters
sent by the petitioner, the recommendations of the USAB have not been implemented.
The petitioner stated that due to the inactions of the
respondents he has lost 2 years of sabbatical leave and he had also lost his
salary increments and other allowances due for the post of senior lecturer
Grade II along with other foreign academic research exposures.
He further says that after he finished the PhD, in
reality, he was entitled to the capacity of senior lecturer grade II when in fact he had been placed in that position from the 1st date of his appointment which is 06.04.2009.
Therefore, he had declared that the respondents have
infringed his fundamental rights under Article (12) (1) and (14) (1) (g).
In Dr. Karunananda v Open University of Sri Lanka [(2006) 3 Sri LR 226], Shirani Bandaranayake J. noted:
“I am not in
agreement with the view chat academic decisions are beyond challenge, there is no necessity for the Courts to unnecessarily intervene in
matters 'purely
of academic nature' since such issues are best dealt with by academics who are
fully equipped to consider the questions in hand; however if there are
allegations against decisions of academic establishments that fall under the
category stipulated in terms of Article 126,
there are no provisions to restrain this Court from examining an alleged
violation
relating to an infringement or imminent infringement irrespective of the fact that
the said violation is in relation to a decision of an academic establishment.”
The petitioner in this case does not seek to challenge a
subjective academic evaluation, such as a mark or grade, but rather contests
the failure of administrative authorities to act on binding internal
recommendations and a statutory appellate body’s directive, despite the evident
error in his initial appointment process. This is not an academic judgment, but a matter
of compliance with lawful administrative procedure.
The Respondents contend that under UGC Circular 721 and
Establishment Circular 17/2005, the Petitioner was not eligible for appointment
as Senior Lecturer Grade II or as an Associate Professor, as he had not
obtained a First or Second Class in his basic degree, failed to produce his BSc
certificate at the time of application, and had not completed a PhD until 2017,
thereby qualifying only for Lecturer (Probationary). They argue further that
his acceptance of the probationary appointment without
protest, reliance on a disputed
document (P- 08), delay
of fifteen years
in filing the petition, suppression of material facts,
and non-joinder of necessary
parties render the application misconceived and time- barred.
In contrast, the Petitioner asserts that his B.Sc.
(Special) in Chemistry together with an M.Phil in Chemical Sciences satisfied
the criteria under Circular 721 for appointment as Senior Lecturer Grade II,
and that the University acted arbitrarily in
seeking approval only for the probationary post, despite assurances of later upgrading. He highlights that in 2017, a
university sub-committee and subsequently the Council
confirmed his eligibility, but the Acting
Vice Chancellor failed to
forward this to the UGC, and that the USAB, after hearing both the University
and the UGC, ordered his appointment as Senior Lecturer Grade II with effect
from 2009, an order never implemented.
While the Respondents stress technical ineligibility and
procedural bars, the Petitioner emphasizes the arbitrariness, contradictory
positions of the UGC.
Article 12(1) of the Constitution guarantees that "All persons are equal before
the law and are entitled
to the equal protection of the law."
The phrase "equality
before the law" appears in nearly all written constitutions and is
derived from English law. In contrast, the term "equal protection of the law" first appeared in the
Fourteenth Amendment to the Constitution of the United States. Both expressions
are employed in the Constitution of Sri Lanka, as they are in the Indian
Constitution.
Article 14 of the Indian Constitution provides: "The State shall not deny to any person
equality before the law or the equal protection of the laws within the
territory of India." It is important to observe that, in the Indian
context, this prohibition against inequality applies solely to the State.
However, no such limitation exists under the Sri Lankan Constitution.
Both terms “equality
before the law" and "equal
protection of the law" are also found in Article 7 of the Universal Declaration of Human Rights,
which states: "All are equal before the law and are
entitled without any discrimination to equal protection of the law." Similarly,
Article 26 of the International Covenant on Civil and Political Rights contains
both expressions.
The notion of equality
before the law is regarded as a negative concept, denoting the absence of special privileges for any individual and the equal subjection of all persons to the ordinary law. On the
other hand, equal protection of the law is
considered a more affirmative concept,
connoting the equal application of the
law in similar circumstances.
Jennings viewed equal treatment as encompassed within the
idea of equality before the law, stating: "Equality
before the law means that among equals, the law should be equal and should be
equally administered, that like should be treated alike." The
underlying aim of both expressions is clearly the attainment of equal justice.
Dicey, asserting equality
before the law to be a corollary
of the famous doctrine of the rule of law, emphasised that it means,
‘the supremacy or predominance of law as distinguished
from mere arbitrariness (... It means again, equality before the law or equal
subjection of all classes to the
ordinary law of the land administered by the ordinary law courts (... It means
that in England no man is above the law but everyman, whatever his rank or condition
may be, is subject to the
ordinary law of the land.’
In the case of Perera v Cyril Ranatunga, Secretary Defence,
Mark Fernando J, with Kulatunga and Wadugodapitiya JJ agreeing, stated:
‘To ignore the requirements of the post and the needs of
the public would be to permit the unrestricted application
of the 'Peter principle' that in a hierarchy a person will continue to be
promoted until he reaches a level at which he is quite incompetent. Merit' thus has many facets,
and the relative importance or
weight to be attached to each of these facets, and to merit in relation to
seniority, would vary with the post and its functions, duties and
responsibilities.’
The petitioner has demonstrated that he was appointed to a
non-advertised position, despite applying for the post of Senior Lecturer Grade
II, Multiple internal committees and the
University Services Appeals
Board (USAB) found that an administrative error had occurred and recommended rectification, and the respondents failed or refused
to act on those findings.
This conduct reflects
an unequal and arbitrary
treatment, violating the petitioner’s right to equal protection under the law.
Article
14(1)(g) guarantees that: “Every citizen
is entitled to the freedom to engage by himself or in association with others
in any lawful occupation, profession, trade, business
or enterprise.”
Article 19(1)(g) of the Indian Constitution guarantees the
freedom 'to practise any profession or to
carry on any occupation, trade or business’.
J. Wickramaratne on ‘Fundamental Rights in Sri Lanka’ (3rd Edition) at page 941:
“A significant difference between the provisions in the
Sri Lankan and Indian Constitutions is the absence of the words 'in association
with others' in the Indian Constitution as noted by Wanasundera J in Visvalingam
v Liyanage FRD (2) 529, 535. Thus, in Sri Lanka, citizens have a
fundamental right not only to engage in any lawful occupation, trade, etc but
also to form associations with others in exercising that right.”
“Article 14(1)(g) of our Constitution confers a right
and not an obligation.
As such, it includes the right not to carry on a trade or business.”
In the case of Perera v Jayawickrema [1985] 1 Sri LR 285, the
Court declared 'Article 14(1)(g) recognises a general right in every citizen to
do work of a particular kind and of his choice, it does not confer the right to hold a particular job or to occupy a particular post of one's
choice.’ However, when a citizen's
employment is denied to him arbitrarily, it
is a violation of Article 14(1)(g).
Article 14(1)(g) would be violated also when a person is
selected for an appointment, but his appointment is suspended arbitrarily. The
petitioner in Sisira Senanayake v Land Reform Commission SC FR 190/2016
was selected for the post of Director, Finance in the Land
Reform Commission after being interviewed.
He was informed of his selection; he accepted the position and resigned from the job he was holding. He was later
informed that his appointment had been suspended.
Lord Denning in the case of Nagle v Feilden
[1966] 1 All ER 689, 694:
“A man's right to work at his trade or profession is just as important to him as, perhaps
more important than his right to
property. Just as the courts will intervene to protect his
rights to property, so they will also intervene to protect his right to work.”
In Vasudewa Nanayakkara v Choksy, Minister
of Finance and others
(SC FR 209/2007, SC Minutes
of 13.10.2009), Bandaranayake J. quoted Lord Denning in Nagle
v. Feilden and others ([1966] 1 All E.R. 689 at page 694) that:
“A man’s right
to work at his trade or profession is just as important to him as, perhaps more
important than, his rights of property... the courts will intervene to protect
his right to work.”
In the present case, the respondents’ continued failure to
recognize the petitioner’s proper designation deprived him of salary
increments, sabbatical leave, professional recognition, and international
academic opportunities, all of which are integral to his lawful profession.
In Liberty Cinema v Commissioner, Corporation of Calcutta and another [1959 AIR Cal 45], D.N. Sinha, J. at
page 53 held that:
“An
uncontrolled and arbitrary power without any restriction whatsoever cannot be granted to the executive
or a non-legislative body, if it is possible
by the exercise of such power to affect the rights guaranteed to a citizen to
carry on trade or business.”
The same principle applies here; the respondents’ refusal
to act on binding recommendations and legal directives, without any
justification, amounts to an arbitrary exercise of discretion, infringing the
petitioner’s freedom to engage in his profession as
protected by Article 14(1)(g).
Although promotion is not a fundamental right, the
petitioner was not merely seeking a discretionary promotion, rather, he was
appointed under a representation that he would be regularized into a higher
post, the very post that was advertised. This created a legitimate expectation,
which was unreasonably denied.
In conclusion, having considered the submissions made and
the documents produced, and the sequence of events that have transpired from
the time of his initial appointment in 2009 to the date of filing this
application, it is evident that the petitioner was subjected to administrative
inaction and procedural irregularities.
The 1st respondent had failed to act on the assurance
given in letter marked P8 to place the Petitioner in the post of Senior Lecturer Grade II, and had delayed and neglected the Petitioner’s
career progression by failing to seek UGC approval in time. Following
the decision of the USAB, the 27th respondent had unreasonably delayed responding to the
University’s request dated 22.12.2022, concerning the implementation of said
order. By not providing timely approval, the
petitioner’s access to his rightful academic position and professional
entitlements had been denied.
Therefore, I declare that the 1st and 27th respondents
have collectively violated the
fundamental rights of the petitioner under Article 12(1) and 14(1)(g) of the Constitution.
Hence, the 1st respondent is directed to take immediate
steps to implement the Order of the University Services
Appeals Board dated 26.10.2022, and to place the petitioner in the position of
Senior Lecturer Grade II with effect from 06.04.2009, being the date of his
initial appointment and the salary entitlements which is due for the said post.
No order is made with regard to compensation as he has been employed in a different capacity in the same institution.
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