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IN THE SUPREME COURT OF THE DEMOCBATISQqIALIS'I

REPUBLIC OF SRI LANI(A


SC FR

Application No. 6O ^n11

In the matter of an application under and


in terms of Article 17 and L26 of the
Constitution of the Republic.

1. Maddage Dayal Nishantha,


No. 52, Dewata Road.,
Kandegoda, Ambalangoda.

2.

Maddage Chanul Ranmith (minor)


No. 52, Dewata Road,
Kandegoda, Ambalangoda.

PETITIONERS
-Vs-

1.

Bandula Gunawardane MP
Hon. Minister of Education
Ministry of Education,
'I surupaya', Battaramulla.

2. H.M. Gunasekara

Secretary - Ministry of Education,


'I surupaya', Battaramulla.

3. M.G.O.P. Panditharathne
Principal - Dharmashoka Vidy alaya,
Galle Road, Ambalangoda.

4. M.H.T. Wasantha (Secretary)


5. H.D.LJ. Chandima
6. Tharaka Maduwage
7. 'W'. Ranaweera De Silva

All :

Mernbers of the Interview Board


(Admission to Year 1)

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,

Galle Road, Afirbalangoda'

'
L2. Douglas Ranasinghe
Schools'
National
Director f

tri.,P

dY

d,

attaramulla'

Hon. The Attorney General


ePartment'
Attorney General's- D
12'
HulftsdbrP, Colombo

13.

RESPONDENTS

BEFORE

COUNSEL

TILAKAUIARDANE' J'

P'c' J' &


SATHYA HETTTGE'
P'c' J'
PRTYASATH DEP'
with sanjaya wilson
Warnasuriya
chrishmal
for the Petitioners'
VirajDayaratneD.S.G.withAshanFernando
L2b and t3th Respondents'
S.C. for the l"t - 3rd ,

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'

(hereinafter referred to as the "3'd


Respondent") of Dharmashoka Vidyalaya, Galle Road, Ambalangoda,
both as the Principal of the said school as well as the President of the
Interview Board and the Appeal Board whose members are also cited as
Panditharathne,

Respondents.

the Principal

It is perhaps in view of these circumstances that the

objections have only been filed by the aforesaid 3'd Respondent in this
case.

Mr. Ashan Fernando, State Counsel makes submissions for

the

Respondents including the Attorney General. During arguments several

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

which ex facie discloses residence at the same premises which are


relevant to the residency issue in this case. He too was admittedly
enrolled in the sErme school on the basis of Residency as contained in
Circular bearing No. 2Ll2O1O dated 31.05.201,0 issued by the Ministry
of Education which explicitly set out the Criteria and Guidelines for

admission. The parties further agree that in terms of the acceptance


and
letter dated January 2OOg (P3) of the elder son of the 1"t Petitioner'
was No'
the residence relevant to the issues in the present application
52, Dewata Road, Kandegod.a, Ambalangoda and therefore both
ate admittedly
applications referred. to the same feeder area' PT to Pl2
of seeking
the documents that the Petitioners had produced at the time
was
such application. The Petitioners averred that their application
P4 above under
made in terms of the aforesaid Circular referred to as
the sibling
two categories, that of Proximity (6.1 of the circular) and
also further
category (6.3 of the said Circular). Parties are in agreement
which
that factually the onus was on the Petitioners to prove residence
in terms
relevant to the application even under the Sibling category

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

all persons, free of any discriminatory action, unfairness and/or


unreasonableness. It is significant to note at this stage that through the
pleadings of the Petitioners, the reliefs claimed from this court are based
on an assertion that the acts of the 3rd Respondent were arbitrary,
by
capnaous and. mala fid.. The strong allegations must be scrutinized
a reasonable balance of
Court in order to ensure

this

fairness to parties involved in executive actions.


A further fact which must be noted was that, through the perusal of the
contents of P3 the elder son of the lst Petitioner who was admitted to the

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

and criteria of the Petitioners' application, the submissions of the learned


Counsel for the Petitioners, was that

in view of the document P3, the

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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

have obtained less

marks. The onus of the petitioners in

proving

Residency was discharged by the tendering of the following documents.


1)

A Deed of Transfer bearing No. g6t4 dated 2L.Lt.2oos


attested by chandralatha Hewawasam, Notary public
which discloses the vendee/the present owner of the
premises to be the l"t petitioner whose name appears
explicitly on the said Deed marked p7.

2)

He also tendered to court, annexed to other documents, the


lst Deed of Gift bearing No. 2ss4 dated 03.0g.1995 and

certified copy of a final decree of partition in case bearing


No. NP 2333 of the District court of Balapitiya dated
30.05.1989 which documents cumulatively establish the
pedigree of title.
3)

The Petitioner has also produced the Grama sevaka,s Report


dated 15.09.2010 certified by the Divisional secretaqr on
L7.O}.2O1O bearing No.

4)

T 02g61g and marked as pg.

Both the Electoral List dated 2g.og.2o1o which is relevant


for this period is marked p9 and the true copy of a document
reflecting the House Holders'List is attached as well.

s)

6)

True Birth Certificate of the 1st Petitioner discloses that he


was born in the said premises marked P10..

The document pI2 which is


documents that had been

application which prove

that they were in the

same

residence.

In his submission in support of the thread of the argument that runs


through the entire case, the Petitioners pointed out that the mala
fides of
the 3'd Respondent was evident in the documents submitted to Court,
especially in document P2O. A careful perusal of P2O indeed discloses
that in the final list of admissions to the said school, the final g
applicants, in accordance to the marks that were allocated had been
admitted to the school had been given g9 marks. Even as proved by 3R1
the fact that was admitted was that the 2nd Petitioner had obtained a
final score of 89.25 marks. There has been no explanation given by the
3'd respondent as to why 3 children with lesser marks have been
admitted, while the 2nd Petitioner in this case was not. Therefore, it can
be conclusively decided that even on the marks allocated to the 2nd
Petitioner that he should have been admitted to the said college. The
exclusion from admission therefore clearly violates the right of admission

that he obtained even through the lesser marks, though in

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

the Priority List (Waiting List).

The learned Counsel for the Petitioners submitted that apart


from the
Residency criteria, he should have been, in any event, admitted
on the
sibling category in terms of 6.3 of the aforesaid p4. A perusar of p20
which is the final list discloses that the last child admitted to the
school
had 54 marks whereas the 2nd Petitioner's total marks on the
sibling list

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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

terms of the aforesaid Circular.

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

Application for admission thereby acting in violation of Article 12(1) and


17 of the Constitution. The Counsel for the Petitioners drew the

attention of this Court to the document P16. P16 is an affidavit dated


Og.O2.2O1 1 signed by the mother of the 2"a Petitioner who was present in
the said premises at the time that the 3'd Respondent together with four
others had arrived at her premises. Apait from a bold denial by the 3ra
Respondent, the detailed facts given with minute description by the wife

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

in the night of 25.10.2010. They have questioned as to


where her husband was to which she had informed them that the Lst
Petitioner was in employment and rostered to work at the Singhalese
premises at 9.4O

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

on drrty, the 3'd respondent would expect his official clothes to

be

hanging in the wardrobe when reasonably he should have been attired in

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

by the 3rd Respondent as to why he visited such house at almost 10 o'


clock in the night especially in a house where a mother and two minor
children were in residence. Though the 3'd Respondent denies such
facts, the visit of the premises at 9.4O p.m. by the 3'd Respondent with
other members of the Interview Board is admitted by the 3'd Respondent.
What further disturbs this Court are the facts that are disclosed through

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
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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'

Despite this obvious discrepancy total sum of 35 marks had been


allotted to this student together with 6 marks for the Deed being in the
name of the father or the mother. This Deed does not contain the name
of either of the parents and therefore this student should not have been
allocated the marks that have been given and which are reflected in 3R5.
Similaily, in the set of documents marked as 3R6, a Deed bearing No.
2gg1 dated 04.01.2010 attested by Nihal Kodithuwakku, Notary Public
whilst being only one year prior to the admission period and not the

stipulated

5 years, the Deed .is neither in the father's name,

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

another person's name ,Ka1ugala Hewa Banduwathie. Similarly, 3R7


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and its annexures in the documentation, a Lease Agreement bearing No.


to27 dated 29.ol.2oog (3R7(g)) had been submitted to prove Residency.
These applications relate to the year 2011. In terms of the Circular for
admissions P4 referred. to above, the lease should have been in force for
at least a minimum of 5 (or less marks if lesser periods) years prior to
the admission to prove residence. This document, when considered, only
refers to a period, of 2 years prior to the application and therefore should

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

to 67.40 and the student has been admitted. No


explanations for these alterations were ddduced. It is patently visible

have been raised

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,

it is clear from all the facts that the impugned

act was

not effected upon a consideration of the relevant fats; that it constitutes


hostile discrimination of the 2'a Petitioner and indeed it can also be
reasonably inferred that the marks have been deliberately manipulated

to assure the admission of these 3 students.

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

not be guaranteed to the citizens of this country. Through the


documents submitted by the 3'd Respondent himself, it is clear that he
has manipulated and acted in favour of the g students thereby
discriminating against the 2od petitioner. ultimately, each and every
such arbitrary, capicious and mala fide act:on reflect on the fairness of
governrnce and the denial of the equality guaranteed and safe guarded

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

l2(1) of the constitution. Furthermore, on the pleadings of the


documents referred to above, it is clear that in the several acts referred
to above committed by the 3.d Respondent, the 3.d Respondent was guilty
of acting mala ftdes not just in respect of the rights of the 2ra petitioner

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

basic values contained in the Constitution and principles governing


public administration, which requires inter alia a high standard of
professional ethics that must be promoted and maintained.
Furthermore, thereby efficient economic and effective use of resources
must be promoted. Services must be provided impartially, fairly,
equitably and without bias.
What motivated such malicious, arbitrary and capricious action by the 3ra
Respondent is a question that must be asked and must be looked into by
the Director of Education and the Secretary of Education to whom a copy
of this judgment shall be forwarded certified copies of this Judgment by
the Registrar of this Court.

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

of schooling in the school of his choice which he had every legitimate


claim to. He has also clearly not been granted what was his due claim on
merit and not accorded equal treatment as guaranteed under the
Constitution and the cumulative acts of the 3.d Respondent has violated
the Cbnstitutional rights of the 2na petitioner
Particularly with regard to violations of Constitutional rights, it is well
established that the Courts have broad power to grant an order that is
appropriate, just and equitable. The courts have a power to forge new
tools in this regard. Appropriate relief, apart from the declaration which
this Court makes, must also vindicate the Constitution and consider the

maladministration by the 3"d Respondent. Therefore this Court orders


as a deterrent against further violation of rights enshrined in "the
Constitution, compensation in a total sum of Ru
i{tf,- Hundred

13

Thousand (Rs. 500,000/-) to be paid to the petitioner by the 3'd


Respondent, personally. This Court further orders as de bonis propriis,
against public officials acting in bad faith and causing unnecessary legal
costs and litigation for the opponents, costs to be paid by the State to the
Petitioners in a sum of Rupees Fifty Thousand (Rs. SO,OOO/-).

This Court further directs the 3'd Respondents and the

other

Respondents to admit the 2'd Petitioner forthwith into Grade 2 of the


Dharmashoka Vidyalaya, Galle Road, Ambalangoda.
sgd.

JUDGE OF THE SUPREME COURT


SATHYA HETTIGE P.C. J.

I agree
sgd.

JUDGE OF THE SUPREME COURT


PRIYASATH DEP P.C. J.

I agree
sgd.

JUDGE OF THE SUPREME COURT


N'l''/

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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