Colombo, 10 September 2026 – The Supreme Court of Sri Lanka has dismissed a fundamental rights application filed by a former public servant, W.M.L.V.G. Fernando, who alleged arbitrary and discriminatory treatment by the Colombo Municipal Council (CMC) and other provincial authorities regarding her promotions, appointments, salary, and pensionary benefits. While rejecting the primary constitutional claim, the Court issued a significant directive for a comprehensive administrative review of her salary increments.
The judgment, delivered by Dr. Sobhitha Rajakaruna J., with A. L. Shiran Gooneratne J. and Arjuna Obeyesekere J. agreeing, concluded that Ms. Fernando had failed to establish an infringement of her fundamental right guaranteed by Article 12(1) of the Constitution (right to equality). The case, SC/FRA/40/2016, saw extensive arguments from both sides, with Saliya Pieris P C & Kaneel Maddumage representing the Petitioner, and Deputy Solicitor General Ganga Wakishta Arachchi along with other counsels appearing for the various respondents.
The Petitioner’s Grievances: A Decade of Alleged Discrimination
Ms. W.M.L.V.G. Fernando, who commenced her career in the Local Government Service in 1989 and was later absorbed into the Sri Lanka Engineering Service, claimed a continuous course of arbitrary and discriminatory treatment throughout her career. Her amended petition, filed in 2017, challenged several key issues:
- The failure to adjust her salary from May 2006 to April 2011.
- Non-payment of salary and applicable increments from May 2011 onwards.
- Alleged continuous harassment through the denial of appointments to senior posts such as Town Planner, Senior Town Planner, Chief Planning Officer, and Chief City Planner (Director – City Planning Division) of the CMC.
- The introduction of a new Scheme of Recruitment for the post of Director – City Planning Division of the CMC, which she claimed was designed specifically to prevent her appointment.
The Petitioner contended that despite being academically and professionally qualified, she was repeatedly overlooked for promotions in favour of less qualified officers, and that recruitment schemes were allegedly amended to exclude her. She also pointed to observations by the Provincial Public Service Commission in 2021, which she believed granted her substantial relief, but were subsequently not implemented or were revoked by the respondents.
Respondents’ Defence: Procedural Compliance and Time Bar
The respondents, including various former and current Chairmen and members of the Provincial Public Service Commission – Western Province, Governors, Municipal Commissioners of Colombo and Dehiwela-Mount Lavinia, and the Attorney General, mounted a robust defence. Key arguments included:
- Time Limitation: A crucial preliminary objection was raised, arguing that the application was time-barred under Article 126(2) of the Constitution. Most of the principal complaints regarding salary non-adjustment, non-payment, and denial of promotions arose between 2006 and 2011, while the application was filed only in 2016. The Court agreed that a continuous violation could not be established to circumvent this jurisdictional bar.
- Lawful Recruitment: The respondents asserted that all recruitment processes, including the formulation of the new Scheme for Director (City Planning) in 2015, were carried out lawfully and in accordance with applicable circulars and procedures. They denied any manipulation to discriminate against the Petitioner.
- Salary Disputes: They contended that salary for relevant periods was offered to the Petitioner, but she declined to accept it, indicating a dispute over computation rather than outright non-payment.
- Petitioner’s Conduct: The 10th Respondent (Municipal Commissioner) even presented evidence of an incident in 2006 where the Petitioner allegedly assaulted an official driver, leading to industrial action and her subsequent transfer, suggesting that certain career disruptions were attributable to her own actions.
- No Legal Entitlement: It was argued that the Petitioner had no legal entitlement to claim specific promotional posts or salary benefits within the CMC, especially as she was not formally attached to the Council for significant periods following transfers.
Supreme Court’s Analysis and Dismissal
The Supreme Court, after careful consideration of the pleadings, affidavits, and submissions, found that Ms. Fernando had failed to provide cogent evidence demonstrating that the respondents acted arbitrarily or discriminatorily in the recruitment processes. The Court emphasized that eligibility for an office does not equate to a legal right to appointment, and it would not reassess comparative merit in the absence of demonstrable illegality or arbitrariness.
Regarding the Provincial Public Service Commission’s observations (Y70a), the Court clarified that this document merely noted the Petitioner’s suitability for certain posts, not an actual appointment, and that any subsequent administrative decisions to cancel appointments (Y77) further undermined her claim.
The Court also found the Petitioner’s assertions regarding salary inconsistencies, noting that her grievance seemed to be more about the correct computation of increments rather than a complete denial of remuneration. Her refusal to accept offered payments further weakened her argument of arbitrary withholding.
Crucially, the Court upheld the preliminary objection regarding the time limitation under Article 126(2), stating that the principal complaints were distinct administrative acts and not a continuing violation that would bypass the constitutional time bar.
Directive for Administrative Review of Salary Increments
Despite dismissing the fundamental rights application, the Supreme Court exercised its wide remedial jurisdiction under Article 126 of the Constitution to ensure that no lawful entitlement was overlooked due to administrative inaction. The Court issued the following specific directions:
- The current Municipal Commissioners of the Colombo Municipal Council and the Dehiwela-Mount Lavinia Municipal Council are directed to inquire into and determine, in consultation and co-operation with the Petitioner, whether she was lawfully entitled to any salary increments that were not added to her salary during her service at the Dehiwela-Mount Lavinia Municipal Council.
- If such entitlement is found, the corresponding arrears must be paid to her within four calendar months from the date of this Judgement.
- Furthermore, if such increments would have impacted her salary at the time of retirement, the respondents are directed to take appropriate steps, in accordance with law, to address her consequential financial entitlements.
This directive underscores the Court’s commitment to ensuring administrative justice, even when a constitutional violation is not established, aligning with precedents where ancillary grievances are addressed through administrative action.
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