W. K. C. PERERA
PROF. DAYA EDIRISINGHE AND OTHERS
DHEERARATNE, J. ANDWADUGODAPITIYA, J.
S.C. APPEAL NO. 18/95C. A. NO. 207/93JULY 06,1995
Writs of Certiorari and Mandamus – Rules and Regulations for the conferment ofDegree – Main subject – Common subject – Core subject – Degree in Fine Arts -Articles 3.4(d) and 12 of the Constitution.
Under the Rules “Advanced Drawing" was not a main subject for the finalexamination for the Degree of Bachelor of Fine Arts. Where the Rules are clearand unambiguous it is impermissible and unnecessary to refer to the ExaminationCriteria in order to interpret the Rules. For a student who has selected Design,“Advanced Drawing” is a subject but not a “Main subject".
In respect of a student who selected Design the only requirement for anordinary pass is that she should obtain an average of 40% in the examination.The Art and Sculpture section includes Design and Graphics as well and theappellant had to obtain “C” (40 to 59%) passes. She satisfied both these
requirements. Thus the appellant satisfied all requirements of the ExaminationCriteria for an ordinary pass and thereby became entitled to the award of theDegree.
Article 12 of the Constitution ensures equality and equal treatment even wherea right is not granted by common law, statute or regulation, and this is confirmedby the provisions of Articles 3 and 4(d). Thus whether the Rules and ExaminationCriteria have statutory force or not, the Rules and Examination criteria read withArticle 12 confer a right on a duly qualified candidate to the award of the Degreeand a duty on the University to award such degree without discrimination andeven where the University has reserved some discretion, the exercise of thatdiscretion would also be subject to Article 12, as well as the general principlesgoverning the exercise of such discretions.
The petitioner, having satisfied the Rules and Examination Criteria, was entitledto the award of the Degree of Bachelor of Fine Arts on the results of the FinalExamination held in 1990. The University of Kelaniya and the Institute are publicbodies set up by statute and performing public functions, using public funds.Under the Rules and Examination Criteria read with Article 12 there was a publicduty cast upon its officers, enforceable by mandamus to take necessary steps toaward the appellant that Degree.
The appellant is also entitled to an order in the nature of a writ of Certiorari toquash the refusal by the University of Kelaniya and/or the Institute of AestheticStudies and/or its officers to award her the Degree of Bachelor of Fine Arts.
Cases referred to:
Sannasgala v. University of Kelaniya (1991) 2 Sri LR 193
Alphonso Appuhamy v. Hettiarachchi (1973) 77 NLR 131.
APPEAL from judgment of the Court of Appeal.
R. K. W. Goonesekera with J. de Almeida Gunaratne for the petitioner-appellant.Mohan Peiris Senior State Counsel for the respondent-respondents.
Cur. adv. vult.
The Petitioner-Appellant (“the Appellant”) claims that she is entitledto be awarded the Degree of Bachelor of Fine Arts of the Institute ofAesthetic Studies of the University of Kelaniya (“the Institute”),
because, she says, she had satisfied all the requirements of theapplicable rules and regulations. She appeals to this Court againstthe order of the Court of Appeal dismissing her application forCertiorari and Mandamus.
It is common ground that, having joined the Institute in 1984, theAppellant successfully completed the first, second and thirdexaminations. She was admitted in 1988 to the course of studiesleading to the fourth (and final) examination, which was held in 1990(the delay being due to the disruption of University courses in 1988-89). She obtained an average of over 40% at the final examination,her detailed results being as follows:
Although in terms of the applicable Rules the Appellant shouldalso have sat for another “common subject” (Scientific Foundation ofthe Arts) and for the “technical subject” which formed part of the“main subject” selected by her, it would seem that, as the Appellantavers, the requisite courses of studies had not been conductedbecause of the then prevailing conditions, and hence the Institutehad decided not to require candidates to be examined in those twosubjects. However, nothing turns on this, because the only dispute, inboth Courts, was whether “Advanced Drawing" was a "main subject"and whether the Appellant should have obtained a “C" grade in thatsubject.
The question whether “Advanced Drawing” was a “main subject”,and what grade was required, has to be determined by reference totwo documents issued by the Institute to its students, namely itsRules prescribing the syllabi for each year of the degree course, andits published “Examination Criteria”.
The relevant provisions of the Rules are as follows:
A fourth-year student must select a “main subject” from amongfour subjects: Art, Graphics, Sculpture and Design.
Every Student was obliged to take four “Common ” subjects,namely –
History of the Arts;
One “subsidiary” subject (Art, Graphics, Sculpture, Leather,Textiles, Metal, Wood or Ceramics);
Advanced Drawing; and
Scientific Foundation of the Arts.
The course content of the four “main subjects” was described;each involved three or more subjects or papers.
“Design” which was the “main subject” selected by theAppellant, included:
Types, Colours and Decor; and
Architecture, Arithmetic, Examples of Industrial Designs,and Geometrical Drawing (which, for convenience, I willrefer to, collectively, as the “technical subject").
“Advanced Drawing” dealt, essentially with the human body,while the topics included in the “technical subject” related toknowledge and skills of a mathematical and technical nature, suchas algebra, geometry, trigonometry, and the like.
Several contentions were advanced in support of the Institute’sposition that “Advanced Drawing” was a “main subject” – althoughthe Rules described it as a “common subject” – because, it wasargued, it was part of the course content for “Design". Firstly, it wassaid that "Advanced Drawing" was “a common paper on the mainsubject” of Design (and, presumably, of the other “main subjects" aswell); secondly, that it was necessarily a core subject of any Degree
in Arts and Sculpture, and therefore a pass (presumably, a “C” pass)was mandatory; and finally, that in relation to the “main subject” ofDesign, “Advanced Drawing” must be regarded as the equivalent ofthe “technical subject”. The Court of Appeal held that the paper on“Advanced Drawing” appeared to relate to the “technical subject";that it was a component of the “main subject” Design; and that it wasa “core subject" “in the Arts and Sculpture section in ArtisticDesigning”.
These observations and conclusions are clearly erroneous. TheRules only draw a distinction between “main subjects” (which includetheir constituent components) and “common subjects” (one of whichis termed a “subsidiary" subject). They recognise no otherdistinctions between subjects. They neither require nor permit the re-classification of a “common subject”, under the guise ofinterpretation, as a “core subject”, or as a “common paper of a mainsubject”; or the equating of a “core subject” to a “main subject”. Whatthey describe as a “common subject” for the course, cannot betreated as a “core subject” or as a “common paper” of the “mainsubject”. The Rules are clear, contain no ambiguities, and give riseto no manifest absurdity or injustice. To introduce new concepts,relating to “core subjects”, “common papers”, etc, is to depart fromthe process of interpretation, and thereby to amend or re-write theRules based on subjective perceptions as to the importance of asubject, inconsistently with the intention of those who framed theRules, as appearing from the language they used. Further, the Rulesdid not equate the (artistic) skills involved in drawing the humanbody, to the (technical) skills involved in the “technical subject”, andthere is a reasonable basis for the view that skills of the former kind,though vital for Art or Sculpture, were not so important for Design.
I have no hesitation in holding that under the Rules “AdvancedDrawing” was not a “main subject”.
It is both impermissible and unnecessary to refer to the“Examination Criteria" in order to interpret the Rules on this aspect,because the Rules are clear and unambiguous. However, scrutiny ofthe Examination Criteria reveals that they are wholly consistent withthe Rules. They may be summed up thus:
The First three paragraphs prescribe, in sequence, therequirements which a candidate must satisfy to obtain honours(first class, upper second, and lower second, respectively),namely –
a specified average in the whole examination (70%, 65%and 55%, respectively), and
Specified grades (“A” for a first class, and at least “B” for asecond class) in certain subjects.
Some of these subjects are specified in these threeparagraphs, while the remaining subjects are described as “thesubjects set out in the Note K, relevant to the main subjectselected by the student in the Arts and Sculpture section”.
Note K refers to the four main subjects (there being amisdescription, in regard to “Design”, which I will ignore) and inrelation to each main subject, three subjects are mentioned.“Advanced Drawing” is included in relation to all four mainsubjects.
Note K appears immediately after the third paragraph, andadmittedly applies to the first three paragraphs.
Note K is followed by the fourth paragraph, which makes noreference to Note K. It sets out the criteria for an ordinary pass,namely –
“Pass: While an average of 40% is required to obtain an ordinarypass, in the Dance Section …. and in the Art and SculptureSection candidates must obtain a “C” grade pass in the mainsubject and in the History of the Arts.”
Learned Senior State Counsel submitted that Note K makes“Advanced Drawing” a “main subject” – both for honours and foran ordinary pass. Had there been some ambiguity in the Rules asto whether “Advanced Drawing” was a “main subject”, it mighthave been legitimate to resolve that ambiguity by reference to the
Examination Criteria and Note K. However, in the absence of anyambiguity, Note K cannot alter the Rules. That apart, Note K properlyread, does not even suggest that “Advanced Drawing” is a “mainsubject”. While the English translation is far from satisfactory, theSinhala text of the first three paragraphs clearly refers to “thesubjects set out in Note K, relevant to the main subject", and not, asthe Respondents contend, to “the main subject set out in Note K …”.Thus, for a student who has selected Design, "Advanced Drawing" isa subject (but not a "main subject”) in which she must obtain superiorgrades in order to obtain honours. However, since the fourthparagraph of the Examination Criteria does not refer to Note K,nothing in Note K can be treated as modifying the requirements foran ordinary pass specified in that paragraph. Even if there had beenany doubt or ambiguity, since the document was one prepared andissued by the Institute, the contra proferentem rule of interpretationmust be applied, so as to give the student, and not the Institute, thebenefit of that doubt or ambiguity.
In my opinion, Note K is inapplicable to an ordinary pass, and inany event does not make “Advanced Drawing” a “main subject”.
It is arguable that in respect of a student who selected Design theonly requirement for an ordinary pass is that she should obtain anaverage of 40% in the examination. This requirement the Appellantsatisfied. However; it may be that “the Art and Sculpture section”includes Design and Graphics as well, in which event the Appellantshould also have obtained “C” passes in her “main subject” and inHistory of the Arts: this too she did. She therefore satisfied all therequirements of the Examination Criteria for an ordinary pass, andthereby became entitled to the award of the Degree.
Learned Senior State Counsel conceded that, upon this finding,we should grant Certiorari to quash the decision not to award theAppellant the Degree. He contended however, that we should notgrant Mandamus to compel the award of the Degree, but only torequire the relevant authorities to consider the question of awardingthat Degree. He also claimed that there had been no refusal to awardher the Degree. He also submitted, firstly, that there was no publicduty to award a Degree, and that no one had a right to the award of a
Degree (citing Sannasgala v. University of Kelaniya(1)), and secondly,that any institution awarding Degrees had a residual discretion towithhold a Degree, even if the candidate had satisfied the relevantregulations. He submitted that the Appellant was “weak" in“Advanced Drawing", having failed in that subject in the first, secondand third examinations, and having passed in that subject, in eachcase, only on her second attempt. He suggested that the Appellantmight more appropriately have sought relief under Article 126 for thealleged failure to apply the Rules and Examination Criteria uniformly.
It is clear from the conduct of the University, the Institute, and theirofficers (including the undue delay in replying to the Appellant’sseveral appeals) that there was a refusal to award the Appellant theDegree to which she was entitled under the Rules. By a letter dated12.11.92 she was informed that the original decision of the Board ofExamination could not be changed. And indeed it is that refusalwhich we are now called upon to quash by Certiorari.
While it was possible for the Institute to have reserved the right towithhold the Degree, even where a candidate has satisfied therelevant rules and regulations, there Is no such reservation in theRules and Examination Criteria which have been produced. Ourattention was not drawn to any other provision whereby any suchdiscretion was reserved. The decision in Sannasgala is not relevantfor two reasons. Firstly, it would appear that there were no rulesentitling the candidate in that case to the award of a Degree.Secondly, although there are dicta suggesting that the Universitywould have had a discretion, even if there had been such rules, thoseobservations were in the context of a decision reached beforefundamental rights were constitutionally entrenched in 1978. Prior to1978 it was held in Alphonso Appuhamy v. Hettiarachchi(2), thatsection 18(1) (a) of the 1972 Constitution did not itself confer a rightto equality or to equal protection, and would come into operation onlywhere a complainant was able to establish that he had acquired aright to be protected (i.e. under some other statute or regulation),because section 18(1) (a) “does not protect non-existent rights” (perRajaratnam, J. at 140-141). Pathirana, J. who delivered the principaljudgment did not refer to the fundamental rights aspect. But nowthere is no doubt that Article 12 ensures equality and equal treatment
even where a right is not granted by common law, statute orregulation, and this is confirmed by the provisions of Articles 3 and4(d). Thus, whether the Rules and Examination Criteria have statutoryforce or not, the Rules and Examination Criteria, read with Article 12,confer a right on a duly qualified candidate to the award of theDegree, and a duty on the University to award such Degree withoutdiscrimination; and even where the University has reserved somediscretion, the exercise of that discretion would also be subject toArticle 12, as well as the general principles governing the exercise ofsuch discretions.
The fact that by entrenching the fundamental rights in theConstitution the scope of the writs has become enlarged is implicit inArticle 126(3), which recognises that a claim for relief by way of writmay also involve an allegation of the infringement of a fundamentalright. While learned Senior State Counsel is correct in suggesting thatthe Appellant may have sought redress under Article 126(2), she wasalso entitled to apply to the Court of Appeal for Certiorari andMandamus, and when it appeared that there was, prima facie, aninfringement of a fundamental right, the whole matter could havebeen referred to this Court under Article 126(3).
I hold that, having satisfied the Rules and Examination Criteria, thepetitioner was entitled to the award of the Degree of Bachelor of FineArts on the results of the final examination held in 1990. TheUniversity of Kelaniya and the Institute are public bodies set up bystatute and performing public functions, using public funds. I holdthat under the Rules and Examination Criteria, read with Article 12,there was a public duty, cast upon its officers, enforceable byMandamus, to take the necessary steps to award the Appellant thatDegree.
The Appellant is entitled to an order in the nature of a writ ofCertiorari to quash the refusal by the University of Kelaniya and/or theInstitute of Aesthetic Studies and/or its officers to award her theDegree of Bachelor of Fine Arts, and to an order in the nature of a writof Mandamus directing the 1st, 2nd and 3rd Respondents to take allnecessary steps, within the scope of their powers, duties andfunctions, to award her that Degree.
The appeal is allowed, the order of the Court of Appeal is setaside, and orders for the issue of Certiorari and Mandamus, asaforesaid, are substituted. The Appellant is entitled to a sum ofRs. 20,000 as costs in both Courts.
DHEERARATNE, J. -1 agree.
WADUGODAPITIYA, J. -1 agree.
W. K. C. PERERA v. PROF. DAYA EDIRISINGHE AND OTHERS