Professional Documents
Culture Documents
2.
PETITIONERS
-Vs-
1.
Bandula Gunawardane MP
Hon. Minister of Education
Ministry of Education,
'I surupaya', Battaramulla.
2. H.M. Gunasekara
3. M.G.O.P. Panditharathne
Principal - Dharmashoka Vidy alaya,
Galle Road, Ambalangoda.
All :
clo;
harmashoka Vidyalaya,
Galle Road, Ambalangoda.
8. R.B. Meththananda
g. K.K' fft"*a Chandani
O. Dh arrrLasiri Ginige
11. K. Indunil De Silva
AUi Memb*" of1) APPeal
Board
Year
@mission to
ffirmashoka vidyalaya,
'
L2. Douglas Ranasinghe
Schools'
National
Director f
tri.,P
dY
d,
attaramulla'
13.
RESPONDENTS
BEFORE
COUNSEL
TILAKAUIARDANE' J'
ARGUED &
DECIDED ON
20.01 .2012
TILAI(AWARDANE J.
The application of the Petitioners was considered and leave was
on 08.03.2011 for an alleged violation under Article L2(Ll
of t
Constitution.
The objections in this case have only been filed by the 3'd Respondent
and during the arguments Counsel for the Petitioners submitted that the
alleged violation was primarily by the 3'd Respondent, M'G'O'P'
Respondents.
the Principal
objections have only been filed by the aforesaid 3'd Respondent in this
case.
the
facts were admitted. The 2'a Petitioner. was the minor child of the 1"t
Petitidner who, being employed as a Steward of the Singhalese Sports
Club, was the sole breadwinner for his family. The 2'd Petitioner sought
admission for Grade 1 for the academic year of 2OLL to Dharmashoka
Vidyalaya, Ambalangoda. Parties also agreed that the elder son of the l"t
Petitioner was also admitted to the same school by document marked P3
was
is
of paragraphs 6.1 and 6.3. The issue of residence is a fact that
to the said
essential even under the category of sibling for admission
school.
in
In determining an application under Article 12(1) of the constitution
to
matters relating to admissions, it is incumbent upon this Court
or
examine as to whether there had been a malicious, arbitrary
done by the
capricious exclusion of the student through executive action
person or persons enrolling the said student. The Court must further
in order to
examin'e the fairness and the reasonableness of the exclusion
the
cumulatively assess the applications and to determine as to whether
principle governing the concept of equality has been adhered to' Article
to
12 (1) of the constitution safe guards and guarantees equal treatment
this
School had applied only under the category of Residency and had
obtained 90 marks. When considering the issue of Residency, Counsel
for the Petitioners pointed out that being resident in the same premises
and on the same facts within the same feeder area the minor child, the
2"a Petitioner had been given 89.25 which has been disclosed and proved
not only by the Petitioner but accepted by the annexure marked 3RL
submitted by the 3'd Respondent. Even a cursory review of 3R1 reveals
that the marks of 9O had been granted for Residency even to this 2na
Petitioner, but that it had been through alteration reduced to 89.25. A
threshold matter that the Court has been apprised of is that the
documents submitted to Court which have been annexed to objections of
the 3rd Respondent have not been duly certified and produced to this
Court. It has been the practice in this Court that the documents that
are either certified or tendered as true copies have to be done so by
certification before a Justice of Peace, Notary Public, Commissioner for
Oaths or an Attorney-at-Law. Curiously all these documents tendered
and being annexed to the objections of tlie 3rd Respondent have been
certified as true copies by the 3rd Respondent himself and therefore
according to law those documents could be disregarded and rejected by
this Court for non compliance with the law. The Court has considered
the fact that as the custodian of these documents, the Principal may
have thought that he could produce the documents; he is precluded by
law from certiffing them as "true copies".
The gravamen of the arguments with regard to the Residency component
i
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same 90 marks that were given to the elder sibling should have been
given to the 2na Petitioner and there was no basis whatsoever for
him to
proving
2)
4)
s)
6)
same
residence.
his
arguments the Petitioners also relied on the fact that the same marks
of
Residency should have been given to both the siblings and therefore
he
should have been granted 90 marks whicir would have guaranteed his
admission. Indeed having scrutinized this list, it is also noteworthy that
the second petitioner's name is not even on the Priority (waiting) List in
which students have received marks far less than he had been placed
on
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was 56, a fact which has been categorically admitted by the 3'd
Respondent in paragraph 13 of the affidavit dated 1,6.11 .2oll. Indeed
this Court is perturbed to note that despite the higher mark of 56, the
name of this 2"a Petitioner was excluded both from the admissions list
and even from the Waiting (priority) list which reflects that the last child
who had been placed on the priority list had obtained a 43 marks. The
2"a Petitioner should have been admitted even on the Sibling category in
The next matter that was considered by this Court was the serious
allegation of mala fides alleged against the 3'd Respondent which has
been pleaded in paragraph al(I) of the petition. Such an allegation of
mala fid.es which was proved by the Petitioners by facts, which taken
cumulatively, disclose impropriety and /or connivance and /or bias by
the 3'd Respondent, in the consideration of the 2od Petitioners
of the lst Petitioner has not been denied in paragraph 14 of. the said
affidavit. Significantly, in the paragraphs denying this fact, a significant
matter has been admitted namely; that the 3'd Respondent's visit had
been at 9.4O in the night. He does not deny any of the other details of
what happened on that visit. But to be fair by the 3'd Respondent he has
set out his version of what had happened during his visit.
The facts that had been disclosed by the mother of the 2nd Petitioner
were that, inclusive of the 3'd Respondent the parties had visited the
Sports Club in Colombo. This fact has been proved through documents
marked P14 and P15 which refer to the Roster of the Singhalese Sports
Club together with a letter which confirms that the l"t Petitioner was at
work on that day at 9.40 p.m. Describing this incident in detail the wife
of the l"t Petitioner explains as to how the 3'd Respondent had entered
the bed room and asked her to open the wardrobe and to show the
husband's work uniform. It is strange that having been told that he was
be
the same whilst he was on duty. The wife had explained patiently that
the petitioner was at his work place and therefore he was due to his
billeting on the Roster as his clothes would have been in his official place
of work as they were his official clothes.
Be that as
it Day, this Court is perturbed to note that the visit had been
scheduled at 9.4O p.m. at which time both children who were of tender
years should have been asleep and a visit at this time would necessarily
have disturbed the sleep of the children.' No explanation has been given
the documents marked 3R5, 3R6 and 3R7 and the several annexures
attached thereto. Prior to the examination of these facts, tJ:is Court
notes that under the scheme marked P4 as set out in 6.1.2 where in
ts the
proof of Residency, a Deed is produced in the name q
of,E-*'JTE
Pr"q,^k
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marks allocated will be taken. Where such Deed is in the name of the
grandparents the marks allocated will be 6, where if it is a registered
Lease the marks allocated would be 4 and if it is a non registered Lease
the marks would be 2. A total of 35 marks could only be given if at least
one of these documents were produced. Indeed since the 3'd Respondent
tendered the documents 3R5, 3R6 and 3R7 with a view to denying
several allegations made by the Petitioners in paragraph 37 of the
petition, the Court now subjects these documents to its scrutiny. In the
document 3RS which is a Deed, a total of 91 marks has been granted.
The person has obtained 35 marks for Residency, a Deed of Transfer has
been submitted bearing No.1194 dated 20.05.1973 (3R 5 B).
A perusal of the other annexures show that the father's name was
Pitigala Arachchige Buddika and the mother's name was Kamani
priyangika. The Deed does not reflect either of their names as a vendee.
The vendee's name in the Deed, is a person called Rani Perumalge'
stipulated
Warusavithana Lalith Kumara nor in the mother's name but some other
person's name. The marks reflected in the sheet of marking for this
student was a total 25 marks. 25 marks which has been cut and
replaced with 3o marks and a further 3 marks glven for the Deed being
in the name of the father or the mother'whereas the Deed is given in
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10
not have been allotted full marks in terms of 6.3 (iv) of the circular,
instead inexplicably 35 +2 marks have been allotted(in terms of 3R7).
Furthermore the name of the leaseholder is Chamath Dewaka Koralage
kalegahna, which is neither the applicants mother nor father and
therefore no marks should have been allotted. These marks could
therefore not have been legitimately given.
patent and manifest alterations are also visible on the mark sheet of the
student admitted und.er 3R7. On 3R7 the original score by the student
appears to be 64.65 which have additions made to the Str category under
the heading (difference - paduwa) and with visible additions the marks
that these marks have been deliberately added in order to make up for
the difference and obtain the requisite marks for admission. This
document has been certified as a true copy by the 3'd Respondent.
When all these documents are considered by Court it leads to a
reasonable and. logical conclusion that the 3'd Respondent had been
clearly prejudiced and/or biased in favour of other students who have
been admitted,
act was
The learned counsel for the petitioner cited the Supreme Court
judgments in the cases of Shahul Hameed and. Another v Ranasinghe
and others reported in 1990 1 SLR at page 104 in support of the
"test" for Male Fide; and the case of Karunatilake & Another v
Jayalath de silva and others reported in 2oo3 1 sLR 3s in support
of the arbitrary decision of the 3.d respondent in refusing to admit
the 2nd petitioner to Year 1 of the school and thereby deprived the
2na Petitioner child from the opportunity of being admitted
to the
school
from year
1.
All executive actions must be done without fear and. favour and this
would ensure fairness to all. But when the executive acts either with
fear or in favour of any particular person then the impartiality that must
be the bedrock of all decisions of the executive to ensure equality would
by the Constitution. The acts of the 3'd Respondent in denying the 2na
Petitioner admission to the aforesaid school resulted in the 2na petitioner
being arbitrarily excluded and, therefore constitute a violation of Article
but of all those who expect fairness and reasonableness in all executive
action of all Public servants, including school principals.:".-...
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The Constitution creates certain rights for the public and. certain rights
and obligations on public officials. The doctrine of public trust and other
This Court has dictated this Judgment from the Bench in view of the
delay in granting admission to the 2"d Petitioner who has lost 12 months
13
other
I agree
sgd.
I agree
sgd.
I rlo hereby certify that the foregoing is a true copy of the judgment
dirl.rl 'Jo.0l .2oL2 filed of record in SC FR Application No. 60 120 11.
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