Law-Report-part-2.pdf

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D I G E S T
Page
FUNDAMENTAL RIGHTS – Article 12(1) of the Constitution – Right to 29
equality – Concept of legitimate expectation – Principle of equality –
Principle of rational of reasonable classifcation. – Z score – formula –
Mean and standard deviation.
Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
Of Examinations) And 7 Others
(Continued from Part 1)
FUNDAMENTAL RIGHT – Constitution – Article 12(1) – Right to equality – All 43
persons are equal before the law?
DR. Perera v. Justice Perera and 11 others
(Continued in Part 3)
MOTOR ACCIDENT – Damages – Negligence of defendant while driving car – 34
Injuring passenger – Pleading guilty in Magistrate’s Court – Is it relevant?
Evidence Ordinance Section 41 (A), Section 41 (A) 2,- Damages under
law of Tort.
Rosairo Vs. Basnayake

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 29
The concept of legitimate expectation was examined in
Re Westminister City Council (3), where Lord Bridge had stated
that,
“The Courts have developed a relatively novel doctrine in
public law that a duty of consultation may arise from a
legitimate expectation of consultation aroused either by
a promise or by an established practice of consultation”.
The observations of David Foulkes (supra) in the
applicability of the concept of legitimate expectation was
clearly illustrated by the decisions in Attorney General of Hong
Kong v Ng Tuen Shiu (4) and Council of Civil Service Unions v.
Minister for the Civil Service (The GCHQ case) (5).
In Ng Tuen Shiu (supra), the decision of the Court that
the aggrieved party had a legitimate expectation was based
on a promise given by the Government, whereas in Council
of Civil Service Unions (supra), the decision was based on
the legitimate expectation that arose out of a regular practice.
In the circumstances, it is evident that a mere hope or
an expectation cannot be treated as having a legitimate
expectation.
It is therefore quite clear that it would be necessary for
the party which claims the beneft of legitimate or reasonable
expectation to show that such expectation arises from a
promise or hope given by the authority in question. As stated
earlier, it is not disputed that the results of the Advance
Level Examination were released on 03.01.2009 by the
Department of Examinations and it is not an unknown fact
that after every such release of results there would be a time
period allocated to apply for re-scrutiny by candidates who
are so inclined. In fact the 1st respondent had annexed to

30 Sri Lanka Law Reports [2011] 1 SRI L.R.
his affdavit a document (1R1), dated 01.01.2009, which had
referred to the likelihood of changes to the Z score at the
re-scrutiny stage. Further it had been stated that the results
that were released in January 2009 were only provisional
and subject to change after re-scrutiny, giving a clear indica-
tion that the results that were released in January 2009 were
provisional, and the Z scores that were released would change
after re-scrutiny results are released.
The petitioner’s main grievance is based on the fact that
her Z score was varied due to the changes that were made
after the re-scrutiny and based on her original results she had
a legitimate expectation in entering into a Medical Faculty
of a local University. In the Council of Civil Service Unions
(Supra), Lord Diplock had clearly referred to the applicability
of legitimate expectation in such a situation. Consider-
ing the doctrine in terms of expectation to be consulted or
heard, Lord Diplock had stated that, if a person relies on
legitimate past practice that had been withdrawn or changed
suddenly without any notice or reason for such withdrawal
or change.
In the present application, as has been shown clearly,
there is no material to indicate that the past practice has
been changed or withdrawn at the time the petitioner had
sat for the Advanced Level Examination or at the time the
results were released. On the contrary the same system
which was used in the previous year had been followed and
the candidates were told that depending on the results of the
re-scrutiny of papers, the Z scores could change. In fact by
the year 2008 the students who sat for the Advanced Level
Examination knew that the selection to Universities and to
their different Faculties were based on their individual Z
scores and those students who sat for the Advanced Level
Examination were quite aware as to how it worked, as there

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 31
was general awareness of the said system. In these circum-
stances it would not be correct for the petitioner to state
that the previous scheme had been changed without giving
her an opportunity to express her views on the selection of
candidates to universities.
The petitioner’s complaint that her fundamental right
guaranteed in terms of Article 12(1) had been violated is
based on the concept of legitimate expectation as she had
such an expectation that she would be selected to follow a
course in Medicine.
Article 12(1) of the Constitution, which refers to the right
to equality reads as follows:
“All persons are equal before the law and are entitled to
the equal protection of the law.”
The concept of equality means that equals should be
treated alike. As has been clearly stated in Gauri Shanker v.
Union of India (6),
“. . . . that equals should not be treated unlike and
unlikes should not be treated alike. Likes should be
treated alike.”
Article 14 of the Indian Constitution, which deals
with the equality provision and is similar to Article 12(1)
of our Constitution has been examined and considered
by several Indian decisions. In Ashutosh Gupta v. State
of Rajasthan(7) it was pointed out that to apply the
principle of equality in a practical manner, the Courts have
evolved the principle that if the law in question is based on
rational classifcation it is not regarded as discriminatory.
The Indian Supreme Court has accordingly underlined the
said principle in several decisions Western Uttar Pradesh

32 Sri Lanka Law Reports [2011] 1 SRI L.R.
Electric Power and Supply Co. Ltd. v. State of Uttar
Pradesh(8), R.K. Garg v. Union of India(9) Re: Special Courts
Bill(10) State of Uttar Pradesh v. Kamla Palace(11) and
enumerated the principle that reasonable classifcation in
order to treat all in one class on an equal footing is allowed.
It was stated in Western Uttar Pradesh Electric Power and
Supply Co. Ltd. (Supra) that,
“Article 14 of the Constitution ensures equality among
equals: its aim is to protect persons similarly placed
against discriminatory treatment. It does not however
operate against rational classifcation. A person setting
up a grievance of denial of equal treatment by law must
establish that between persons similarly circumstanced,
some were treated to their prejudice and the differential
treatment had no reasonable relation to the object sought
to be achieved by the law.”
Considering the basis on which the Constitutional
provision in Article 12(1) deals with the right to equality and
the applicability of legitimate expectation on that basis, it is
apparent that the expectation in question should have been
founded upon a statement or an undertaking given by the
authority in question, which would make it inconsistent or
irrational with the general administration to deny such an
opportunity a petitioner has been claiming of through his
petition. Otherwise the petitioner must show that, as has
been stated in Council of Civil Service Unions v. Minister
for the Civil Service (Supra) that there is the existence of a
regular practice, on which the petitioner can reasonable rely
upon to continue, in his favour.
Considering all the aforementioned, it is clear that the
1st or the 2nd respondents had not given any promise or an
undertaking that the Z score would be decided on the basis

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 33
of the provisional results released on 03.01.2009. In fact the
1st respondent had informed the school authorities that the
results released in January 2009 were only provisional. The
indication that was given was that there would be two classes
of students as there would be one group who would be
applying for re-scrutiny. It is also to be borne in mind that
the Z scores would be fnally determined and announced only
after the re-scrutiny of the results are fnalized and this had
been the practice for several years.
Considering all the aforementioned facts and circum-
stances, it is evident that the steps that were taken by the
respondents cannot be categorized as arbitrary and unlawful,
which had violated the petitioner’s fundamental rights guar-
anteed in terms of Article 12(1) of the Constitution.
For the reasons aforesaid, I hold that the petitioner has
not been successful in establishing that her fundamental
rights guaranteed in terms of Article 12(1) of the Constitution
had been infringed by the respondents. This application is
accordingly dismissed. I make no order as to costs.
IMaM, J. – I agree.
SUrESh ChaNdra, J – I agree.
application dismissed.

34 Sri Lanka Law Reports [2011] 1 SRI L.R.
ROSAIRO VS. BASNAYAkE
CouRt of AppeAl
ABDUS SALAM, J
CA 901/2004 (F)
DC (COLOMBO) 21706/M
JULy 4Th 2007
Motor Accident – Damages – Negligence of defendant while driving
car – Injuring passenger – Pleading guilty in Magistrate’s Court – Is
it relevant? – Evidence Ordinance Section 41 (A), Section 41 (A) 2,
– Damages under law of Tort.
The plaintiff instituted action against the defendant-appellant follow-
ing a vehicular accident alleged to have taken place due to the neg-
ligence of the defendant driver – the plaintiff was a passenger in the
car. After trial Court awarded Rs. 1,17040/50 as special damages and
Rs. 4,956,000/- as general damages. on appeal – it was contended that
there was no proof of negligence and that in any event the computation of
damages was wrong.
held:
(1) The trial Judge has in her order quite correctly taken into consid-
eration the evidentiary value of the order in the Magistrate’s Court
case – where the defendant had pleaded guilty to the charges of
negligent driving of the motor car and failing to avoid the accident
complained of.
per Abdus Salam, J.
“A plea of guilt is most relevant and ought to be taken into
consideration in assessing the plaintiff’s case and further plea
of guilt on a charge of failing to avoid an accident by the driver
cannot be lightly ignored in considering as to whose negligence
it was which caused the accident” – Section 41 (A) (2) – Evidence
Ordinance.
(2) The evidence adduced by the plaintiff, before the trial Judge was
such which is capable of giving rise to a reasonable inference

Rosairo Vs. Basnayake
CA (Abdus Salam. J.) 35
of negligence on the part of the driver of the offending vehicle.
The defendant has not been able to negative the allegation of
negligence.
(3) The damages awarded appear to be reasonable and in no way
excessive. The trial judge has assessed the damages partly based
on the loss of opportunity of the plaintiff’s wife to engage in an
employment as she has to care for the plaintiff. having placed the
earning capacity of the plaintiff’s wife at Rs. 3000/- a month, the
trial Judge has fxed damages resulting from loss of employment
opportunity to the wife at Rs. 1,116,000/- and arrived at the general
damages as Rs. 3,840,000/- + Rs. 1,116,000/- = Rs. 4,956,000/-.
Since the wife was not employed the trial Judge could not have
awarded Rs. 1,116,000/- as being part of general damages result-
ing from the wife of the plaintiff having to care for the husband.
(4) Taking into consideration the plight of the plaintiff the trial Judge
could have awarded suffcient compensation for loss of comfort,
pain of mind and the amount the plaintiff may have to incur to
employ someone to care for him in the future. This amount could
be reasonably fxed at Rs. 1,000,000/- not on the basis of the wife
being deprived of employment opportunities but on the basis that
the plaintiff is entitled to such damages to look after himself.
General damages that should have been awarded is Rs. 3,840,000
+ Rs. 1,000,000/- = Rs. 4,840,000/-.
Cases referred to :-
(1) A.W. A. Hemachandra vs. Mohomed Ismail Ayoob – 1986 CAlR
550
(2) Sinniah Nadaraja vs. Ceylon Transport Board 79 NlR (iii) 48
(3) Hollington vs. New thorn & Co. Ltd 1943 2 All eR 35
Prasanna Jayawardane with Millinda Gunatilaka for substituted
appellant.
Mayura Gunawansa, with Viraj Premasinghe and A. Sathyendran for
plaintiff-respondent.
Cur.adv.vult

36 Sri Lanka Law Reports [2011] 1 SRI L.R.
July 21th 2008
abdUS SaLaM. J.
This is an appeal from the judgment of the District
Court of Colombo dated 1.6.2004, awarding damages to the
plaintiff-respondent (hereinafter referred to as the plaintiff)
in a sum of Rs. 4,956,000/- and Rs. 117,040.50 as special
damages.
The plaintiff instituted action against the defendant-
appellant (hereinafter referred to as the defendant) follow-
ing a vehicular accident alleged to have taken place due to
the negligence of the defendant while driving a motor car.
The plaintiff who was a passenger in the said car sustained
severe injuries and lost his eyesight. By his amended plaint
he claimed damages in a sum of Rs. 5,000,000/=, as general
damages and Rs. 1,17040/50 special damages. the
defendant by his amended answer denied liability.
It is common ground that the plaintiff on 30.10.1997
travelled in the vehicle bearing No. 12 SRI 3561 driven by
the defendant along Makola-Kiribathgoda road towards
Sapugaskanda. The matter of the dispute regarding the
alleged liability of the defendant proceeded to trial on 15
issues of which the frst 10 were suggested by the plaintiff
and the rest by the defendant.
At the trial, the plaintiff gave evidence and also led
the evidence of Dr. S. J. pathirana (eye surgeon), W. M.
Bathiyathissa, pC 8909 attached to peliyagoda police station
and M/s Shyamalee Gunathilake, deputy personal manager
of the petroleum Corporation and closed his case reading in
evidence documents marked as p1 to p23 (a).
In unfolding the defence, the defendant gave evidence
and produced documents marked D1 to D2 (c). Thereafter,

Rosairo Vs. Basnayake
CA (Abdus Salam. J.) 37
the learned trial judge in his judgment awarded the full sum
prayed for as special damages and a sum of 4,956,000/= as
general damages.
When the matter was taken up for argument the
defendant relied mainly on two grounds to avoid liability.
In the frst place the defendant took up the position that there
was no proof of negligence on the part of the driver of the
vehicle in question and that in any event the computation of
damages was wrong.
As regards the frst ground urged by the defendant, it
must be stated that the evidence of the plaintiff, the police
constable (together with the document marked p5) and that
of the evidence given by the defendant cannot warrant a
fnding than, what the learned additional district judge has
in fact arrived at, in regard to the negligence of the driver.
As it has been stressed in several authorities the unqualifed
admission of guilt tendered by the defendant in the Magis-
trate’s Court on both counts namely, for failing to avoid the
accident and negligent driving cannot lightly be taken. The
evidence adduced by the plaintiff, before the learned district
judge was such which is capable of giving rise to a reason-
able inference of negligence on the part of the driver of the
offending vehicle. The defendant has not been able to
negative the allegation of negligence. Whilst giving evidence
he admitted that it was raining when the accident occurred
and there were no street lights either. By taking up this
position the defendant has attempted to take undue
advantage of the lack of street lights and the adverse weather
condition to have him absolved from liability. As has been
quite correctly suggested by the learned counsel of the
plaintiff the said adverse driving conditions in fact had placed
the driver of the vehicle in which the plaintiff travelled, the

38 Sri Lanka Law Reports [2011] 1 SRI L.R.
duty to exercise greater care in relation to the safety of the
plaintiff. Taking into consideration the manner in which the
collision has taken place with the vehicle that is said to have
been suddenly reversed on to the road on a crest of a hill, it
is quite clear that the defendant has failed in his duty of care
which he owed to the plaintiff.
The defendant admitted in his evidence that he was
able to observe the container lorry being reversed across the
road only at a point when his vehicle was fve meters away.
This evidence of the defendant suggests the lack of proper
attention for the traffc ahead of him. taking into consider-
ation the length and breadth of the container lorry which is
said to have been reversed suddenly across the road, it is
very unlikely and unsustainable to accept the version of the
defendant that he saw the container lorry only ahead of fve
meters or within a couple of seconds. Therefore, I am totally
in agreement with the submissions of the learned counsel for
the plaintiff. hence the decision in A. W. A. Hemachandra vs.
Mohamed Ismail Ayoob (1) has no application to the present
case.
Admittedly, the defendant has been charged in the
Magistrate’s Court of Colombo in proceedings No. 21266/97
for negligent driving and failure to avoid the accident that
gave rise to the present suit. Upon his pleading guilty to
both charges, a state cost of Rs. 750/- has been imposed on
him. The trial judge in her order has quite correctly taken
into consideration the evidential value of p5. According to
p5 the defendant had pleaded guilty to the charges of negli-
gently driving the motorcar and failing to avoid the accident
complained of.
In the case of Sinniah Nadarajah, vs. The Ceylon
Transport Board(2) Wimalaratne, J. with the concurrence of

Rosairo Vs. Basnayake
CA (Abdus Salam. J.) 39
Rajaratnam, J. and Walpita, J., following the decision in
Hollington v. Hewthorn & Co. Ltd(3), held that a plea of guilt in
the Magistrate’s Court was, most relevant and ought to have
been taken into consideration in assessing the plaintiff’s case.
In the same case Walpita J, observed that the plea of guilt on
a charge of failing to avoid an accident by the driver cannot
be lightly ignored in considering as to whose negligence it was
which caused the accident.
In terms of section 41(A)(2) of the Evidence Ordinance,
where in any civil proceedings, the question whether any
person to any civil proceedings or not, has been convicted of
any offence by any court in Sri Lanka, or has committed the
acts constituting an offence, is a fact in issue, a judgment
or order of such court recording a conviction of such person
for such offence, being a judgment or order against which no
appeal has been preferred within the appealable period, or
which has been fnally affrmed in appeal, shall be relevant
for the purposes of proving that such person committed such
offence or committed the acts constituting such offence.
It is signifcant to reproduce the illustration given
under section 41(A) of the Evidence Ordinance in so far as it is
relevant to this case. The illustration reads that when B
injures C while driving A’s car in the course of B’s employ-
ment with A, B is convicted for careless driving. In an action
for damages instituted by C against A and B, B’s conviction
is relevant.
In the light of the overwhelming evidence adduced by
the plaintiff and the evidence of the defendant in so far as it
relates to the duty of care owed by him towards the plaintiff
in the adverse driving condition, I am not disposed to
interfere with the fnding of the learned district judge as

40 Sri Lanka Law Reports [2011] 1 SRI L.R.
to the negligence of the defendant in driving the vehicle
in question that had caused damages to the plaintiff.
In relation to the other ground urged by the defendant,
I would like to make the following observations. As at the
time, the accident had taken place the plaintiff was 44 years
of age and drawing a salary of Rs. 23,000/- per month. He
had 2 children aged 9 years and 7 years. Further as a direct
consequence of the infrmities suffered by him, his services
under the petroleum Corporation has been terminated with
effect from 18/05/1998.
the position of the plaintiff was that he had expended
Rs. 117,040/50 to obtain medical treatment in attempting
to restore his eye sight but without any success. The
documents produced by the plaintiff marked as p1 to
p23A are quite signifcant to proving the negligence of the
defendant and the patrimonial loss suffered by the plaintiff
as a result. It included the plaintiff’s Salary slip pertaining to
the month of September 1997 (pI), Medical certifcate dated
19/05/1998 issued to the plaintiff by the Colombo eye
Hospital (p6), Medical bills relating to the treatment received
in Sri lanka by the plaintiff (p8, p9 and p10), Receipt issued
by Mackinnon’s Travels relating to the cost of the Airline
tickets in respect of the travel to India for treatment
(p11, p12), Receipts relating to the treatment received in
India (p13 to p16), Receipts relating to the Hotel expenses
whilst taking treatment in India (p20 to p21).
The learned Counsel of the defendant has also taken
up the position that the computation of the damages by the
learned district judge was wrong. According to the evidence
led at the trial the retiring age of the plaintiff is 60 years.
As the defendant did not dispute this position, the learned

Rosairo Vs. Basnayake
CA (Abdus Salam. J.) 41
additional district judge cannot be faulted for arriving at the
conclusion that the plaintiff could have worked until his 60th
year, had he not been faced with the diffculties that arose
from the vehicular accident.
As a result of the accident the plaintiff became blind for
life at the age of 44 years. The learned counsel of the plaintiff
submitted that no amount of money can ever compensate
the pain of mind and the suffering, the plaintiff has been
subjected to, throughout his life as a result of this accident.
In the circumstances the damages awarded to the
plaintiff appear to be reasonable and in no way excessive.
The defendant has submitted that the amount of compen-
sation received by the plaintiff from the petroleum Corpora-
tion should have been taken into consideration in awarding
damages. In any event, it has to be observed that since the
liability of the defendant to pay damages arises under the
law of torts, it is not open to the defendant to seek refuge
behind any payment made to the plaintiff under the contract
of employment he has had with the petroleum Corporation.
The learned additional district judge has considered the
impaired vision and the related disabilities of the plaintiff
resulting from the negligence of the defendant which required
constant care and attention. The trial judge has assessed
the damages partly based on the loss of opportunity of the
plaintiff’s wife to engage in an employment, as she has to
care for the plaintiff. having placed the earning capacity of
the plaintiffs wife at Rs. 3000/- a month, on an assumptive
basis the additional district judge has fxed the damages re-
sulting from loss of employment opportunity to the wife of the
plaintiff at Rs. 1,116,000/- and arrived at the general dam-
ages as Rs. 3,840,000 + Rs. 1,116,000/- = Rs. 4,956,000/-.

42 Sri Lanka Law Reports [2011] 1 SRI L.R.
Since the wife of the plaintiff was not employed the learned
additional district judge could not have awarded Rs.
1,116,000/- as being part of general damage resulting from
the wife of the plaintiff having to care for husband. In any
event the wife of the plaintiff has not claimed any damages
for loss of any employment opportunities. hence taking into
consideration the miserable plight of the plaintiff who has
lost his eye sight at the age of 44 years, the learned additional
district judge could have considered awarding suffcient
compensation for loss of comfort, pain of mind and the
amount the plaintiff may have to incur to employ some one
to care for him in future. The learned district judge could
have reasonably fxed this amount at Rs. 1,000,000/- not
on the basis of the wife of the plaintiff being deprived of
employment opportunities as a result of the plight of the
plaintiff but on the basis that the plaintiff is entitled to such
damages to look after himself. hence the general damages that
should have been awarded is Rs. 3,840,000 + Rs. 1,000,000
= Rs. 4,840,000.
Hence the plaintiff would be entitled to Rs. 4,840,000
as general damages and Rs. 117,840.50 as special damages
aggregating to 4,957,840.50. Subject to the above variation
the appeal of the defendant stands dismissed with costs fxed
at Rs. 51,500/-.
appeal dismissed.
subject to variation.

Dr. Perera v. Justice Perera and 11 others
SC 43
DR. PERERA V. JUSTICE PERERA AND 11 OTHERS
SupReMe CouRt
DR. SHIRANI A. BANDARANAyAke, J.,
RAtNAyAke p.C., J. AND
IMAM. J.
S.C. (f.R.) ApplICAtIoN No. 598/2008
JULy 5Th 2010
Fundamental Right – Constitution – Article 12(1) – Right to equality
– All persons are equal before the law?
the petitioner, a Senior Consultant of the Department of Secondary
and Tertiary Education of the Faculty of Education, Open University
of Sri Lanka, alleged that the purported directions of the 1st to 9th
Respondents not to re-instate the petitioner in the public service and
not to release the petitioner to the open university until and unless the
petitioner pays to the State the cost of his foreign studies funded by the
Government, are arbitrary, irrational and unreasonable and in violation
of the petitioner’s fundamental rights guaranteed in terms of Article
12(1) of the Constitution.
held:
(1) Equality before the law does not mean that all should be treated
alike or that the same law should be applicable to all persons.
What is meant is that equals should be treated equally and similar
laws should be applicable to persons, who are similarly circum-
stanced.
(2) Article 12(1) of the Constitution postulates that all persons, who
are similarly circumstanced should be treated alike. Accordingly,
the doctrine of equality before the laws would not be applicable to
persons, who are not similarly circumstanced. Unequals cannot
be treated equally, not equals be treated unequally.
(3) Every wrong decision cannot and would not attract the consti-
tutional remedies guaranteed under the fundamental rights

44 Sri Lanka Law Reports [2011] 1 SRI L.R.
incorporated in the Constitution. In reference to Article 12(1) of the
Constitution it would be necessary to show that there had been
unequal treatment and therefore discriminatory action against the
petitioner.
(4) the decision taken by the public Service Commission with regard
to the petitioner in no way could be categorized as arbitrary,
unlawful and irrational and is not in violation of the petitioner’s
fundamental rights guaranteed in terms of Article 12(1) of the
Constitution.
Cases referred to :-
(1) Snowden v. Hughes (1943) 321 U. S. 1, 64 S. Ct. 297, 88L.
Ed. 497 (1944)
(2) Ram Krishna Dalmia v. Justice Tendolkar A. I. R. 1958 S.C. 538
aPPLICaTIoN under Article 12(1) of the Constitution.
J. C. Weliamuna with Maduranga Ratnayake for petitioner.
Indika Demuni de Silva, D S. G. for 10th – 12th Respondents.
Cur.adv.vult
March 10th 2011
dr. ShIraNI a. baNdaraNayakE, J.
the petitioner, a Senior Consultant of the Department of
Secondary and Tertiary Education of the Faculty of Education,
Open University of Sri Lanka (hereinafter referred to as the
open university) at the time of fling this application, alleged
that the purported directions of the 1st to 9th respondents not
to re-instate the petitioner in the public service and not to
release the petitioner to the Open University until and unless
the petitioner pays to the State the cost of his foreign studies
funded by the Government, are arbitrary, irrational and
unreasonable and in violation of the petitioner’s fundamental
rights guaranteed in terms of Article 12(1) of the Constitu-
tion, for which leave to proceed was granted by this Court.

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 45
The facts of this application, as submitted by the
petitioner, albeit brief, are as follows:
The petitioner had obtained his Degree of Bachelor of
Arts (Hons.) from the university of peradeniya in 1985 (p2a).
thereafter he had obtained his post Graduate Diploma in
education from the university of Colombo in 1993 (p2b). He
had obtained two Degrees in Master of Education; one in 1996
from the university of Colombo (p2c) and the other in 1999
from the university of Wollongong, Australia (p2d). later in
2004, he had obtained the Degree of Doctor of Education
from the same university in Australia (p2e). the petitioner
had also obtained a professional qualifcation in the form of
a Diploma in Counselling from the Institute of psychological
Studies in 2006 (p2f).
The petitioner had joined the public service in July 1989
as an Assistant Teacher and thereafter had served in the
Vavuniya National College of Education in different capacities
ranging from Assistant Lecturer, Senior Lecturer to the Dean
of the College since 1995.
Whilst he was serving as the Dean of the said College
of Education, the petitioner had received a scholarship
offered by the Government to read for a Degree in Master of
education at the university of Wollongon, Australia in 1998.
he had successfully completed the said Degree in 1999.
Thereafter, the petitioner had been serving as a Senior
Lecturer at the Siyane National College of Education and
in 2001, he was selected by the university of Wollongong,
Australia to read for the Degree in Doctor of Education. The
said programme was funded by the World Bank General
education project – 2 in Sri lanka. prior to leaving the country,
as a pre-condition, the petitioner was required to sign an

46 Sri Lanka Law Reports [2011] 1 SRI L.R.
Agreement with the Government of Sri Lanka, which stated
that after completion of his studies he should return to
Sri Lanka and shall serve the Government, if so required,
for a term of eight years and seven months (p5). He had
left the country on study leave in November 2001 and after
successfully completing his Degree in Doctor of Education
had returned to the country in January 2004 and had
resumed his duties at the Siyane National College of Educa-
tion.
Immediately thereafter, in February 2004, through the
president (Head) of the Siyane National College of education,
the petitioner had applied for the post of Senior Lecturer of
the Department of education in the university of peradeniya
(p6). By letter dated 26.08.2004 (p7), the said university
had informed the petitioner that he was selected to the said
position on contract basis for a period of one year. On receipt
of the said letter, the petitioner had sought permission to
be released from Siyane National College of Education. The
president (Head) of the Siyane National College of education
had verbally instructed the petitioner to assume duties at the
university of peradeniya pending permission for the petitioner
to be released from Siyane National College of Education.
The petitioner had assumed duties at the University of
peradeniya on 01.10.2004.
By letter dated 25.08.2004 (p8), the Secretary to the
Ministry of Education had informed the petitioner declining
to release the petitioner to the university of peradeniya. He
had referred to Clause 4:4 in chapter XV of the Establish-
ments Code.
In May 2005, the Open University had called for appli-
cations for the post of Senior lecturer in education. Whilst

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 47
Serving at the university of peradeniya, the petitioner had
applied for the said post through the head of the Siyane
National College of education (p9). After an interview, by
letter dated 29.08.2005 (p10), the petitioner was appointed
to the post of Senior Lecturer in Education at the Open
university (p10). thereafter, the petitioner had made a
request through the head of the Siyane National College of
education to the public Service Commission, for him to be
released to the open university (p11).
Since no steps were taken to release the petitioner,
in October 2005, he had made a complaint to the human
Rights Commission (p14). the Human Rights Commission
had made recommendations in favour of the petitioner and
on the strength of such recommendations and the letter of
the Director-General of Establishments sent in October 2005
(p13b), the petitioner had assumed duties on 21.11.2005 at
the Open University. By letter dated 14.12.2005, the Vice
Chancellor of the Open University had made a request to
the then Secretary of the Ministry of Education to formally
release the petitioner to the open university (p16).
By letter dated 30.05.2006, the Ministry of Education
had informed the petitioner that he was released to the
university of peradeniya (p17).
Meanwhile, whilst the petitioner was serving at the Open
University, in July 2006, he had received a letter of vacation
of post dated 27.06.2006 from the Siyane National College of
education (p18). the petitioner had tendered an explanation
to the Secretary of the Ministry of Education with a copy to
Siyane National College of Education. Later a copy of the
explanation was sent to the public Service Commission (p19).
In July 2006, the Director (Colleges of Education) of the

48 Sri Lanka Law Reports [2011] 1 SRI L.R.
Ministry of Education had informed the petitioner that the
public Service Commission had rejected the request made by
the petitioner to release him from Government service (p20).
The petitioner had preferred an application to the
Administrative Appeals Tribunal against the said decision
of the public Service Commission (p21). By its order dat-
ed 07.02.2008, the Administrative Appeals Tribunal had
dismissed the petitioner’s appeal on the basis that the
petitioner sought to serve outside the public service and that
without the Secretary’s recommendation the petitioner could
not be released from the government service (p22).
In the meantime, the Open University had terminated
the petitioner’s service with effect from 29.02.2008 on the
basis that for over two years he had not been formally
released from the government service (p23). the open
University had however, appointed the petitioner as a Senior
Consultant attached to the Department of Secondary and
Tertiary Education, on contract basis.
By letter dated 14.11.2008 (p25), the public Service
Commission had informed the petitioner that the public
Service Commission had decided to consider reinstating the
petitioner, provided that he agreed to pay the State before
31.12.2008, such sum of money in terms of the obligatory
service to the Government under the said Agreement (p5).
Later the petitioner had received the copy of a letter dated
26.11.2008 (p26), addressed to the president (Head) of
Siyane National College of Education by the Additional
Secretary of the Education Service, Ministry of Education,
stating that if the said sum of money, in terms of the obliga-
tory service to the Government under the Agreement (A5) is
not paid to the State on or before 31.12.2008, the previous
notice of vacation of post would stand.

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 49
The petitioner alleged that both letters dated 14.11.2008
(p25) and 26.11.2008 (p26) have failed to appreciate the
correct legal position under Clause 4.14 in chapter XV of the
Establishments Code read with section 77(5) of the Univer-
sities Act, No. 16 of 1978 (as amended). It was also stated
that the petitioner was reliably informed that the hon. The
Attorney-General in November 2005 had advised the National
Institute of Education on the identical issue in respect of one
R.M.S.k. Ranasinghe stating that under section 77(5) of the
Universities Act, any service to a higher educational institute
could be considered as service to Government. The petitioner
had also become aware that the public Service Commission
had allowed similarly circumstanced Teacher Educationists
to serve in higher educational institutes without serving
notices of vacation of post. he had referred to one A.C.A.M.
Mansoor, W.D.C.p. perera and p.R.k.A. Vitharana as such
instances.
The petitioner alleged that the aforementioned decisions
and the conduct of the respondents are unreasonable,
arbitrary, irrational and in violation of Article 12(1) of the
Constitution.
Learned Counsel for the petitioner contended that
although the petitioner was granted a scholarship to study
abroad whilst he was serving at the Siyane College of
education, the fnances for the said scholarship were not
allocated from the said College, but from a World Bank
project. It was also contended that the Agreement p5 was
between the petitioner and the Secretary to the Ministry
of Education and had no reference to Siyane College of
Education nor to any similar Colleges of Education.
Learned Counsel for the petitioner submitted that the
said Agreement marked p5 does not mention the fact that

50 Sri Lanka Law Reports [2011] 1 SRI L.R.
the petitioner must serve at the Siyane College of Education
or any similar College of Education and as such there cannot
be any diffculty in releasing the petitioner from the Siyane
College of Education. Further it was submitted that in terms
of section 77(5) of the Universities Act there are no legal
impediments to release the petitioner to another Government
institution or agency and that even the public Service
Commission had in principle conceded this position.
Learned Deputy Solicitor General for the 10th, 11th and
12th respondents (hereinafter referred to as the respondents)
contended that the petitioner had accepted the appointment
at the Open University on 05.09.2005 and had assumed
duties in the said post on 21.11.2005 without obtaining
approval for his release from the public Service Commission.
It was also contended that the petitioner had disregarded
the letter sent by the Secretary to the Ministry of Education
in December 2005 (10R4), as he had failed and/or neglected
to report for duty when he was called upon to do so. In the
circumstances learned Deputy Solicitor General strenuously
contended that there had been no violation of the petitioner’s
fundamental rights.
having referred to the facts of this application and the
contentions of the learned Counsel for the petitioner and the
learned Deputy Solicitor General for the respondents, let me
now turn to consider the alleged infringement complained by
the petitioner.
The contention of the learned Counsel for the petitioner
was that, although the petitioner had obtained study leave at
the time he was an employee of the Siyane National College
of Education, after entering into an Agreement with the
Government of Sri Lanka that he would serve the obligatory

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 51
period on his return or in lieu of that he would pay the
required sum of money, that such period of obligatory service
could have been rendered either at the Siyane National
College of Education or at any other Government institution.
Learned Counsel for the petitioner had relied on section
77(5) of the Universities Act and Clause 4:14 chapter XV
of the Establishments Code in support of his contention.
Section 77(5) of the Universities Act is as follows:
“Where a Higher Educational Institution employs any
person who has entered into a contract with the Gov-
ernment by which he has agreed to serve the Govern-
ment for a specifed period, any period of service to that
Higher Educational Institution by that person shall be re-
garded as service to the Government for the purpose of
discharging the obligations of such contract.”
According to section 77(5) of the Universities Act, the
service of a person to a higher Educational Institution, who
has entered into a contract with the Government, shall be
regarded as service to the Government. however, as it could
be clearly seen, for the applicability of section 77(5) of the
Universities Act, it would be necessary for the person in
question to be employed by the said Institution. For such an
employment, it is necessary for the said person to be released
for such service. Clause 4:14 of chapter XV of the Establish-
ments Code refers to such a release. The said Clause is as
follows:
“Where an offcer is released for service in a public
corporation, such service will be counted as part of his
obligatory service for discharging his obligations under an
Agreement.”

52 Sri Lanka Law Reports [2011] 1 SRI L.R.
Accordingly the release for service of the offcer in
question from his place of work would be an essential
requirement for the purpose of employment in a higher
Educational Institution. The applicability of section 77(5)
of the universities Act depends on the fulflment of the
requirement specifed in Clause 4:14 of chapter XV of the
Establishments Code. It is therefore apparent that it would be
necessary to consider whether the petitioner could have been
released from the public service.
The Establishments Code refers to the procedure, which
governs the release of a public offcer and chapter V of the
Establishments Code deals with such release, reversion and
termination of employment. Reference has been made in this
chapter regarding the release of offcers for appointment to
another post in the public service as well as releasing offcers
for service outside the public service. Since the petitioner had
frst accepted the appointment at the open university whilst
he was serving at the Siyane National College of Education,
he would come within the category of offcers referred to in
Clause 2 of chapter V, viz., release for service outside the
public service.
Under the said Clause 2, the relevant provisions, as
correctly pointed out by the learned Deputy Solicitor-General
for the respondents, are Clauses 2.1 and 2.3. These two
provisions are as follows:
“2:1. An offcer may be released for service outside
the public Service (as for instance in a public
Corporation) only with the sanction of the
Appointing Authority and any other authority whose
concurrence is required by the law under which the
Corporation or Board is constituted.

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 53
2:3. An application for release (temporary or permanent)
should be made on a form as in specimen given
at Appendix 6 by the Appointing Authority of the
offcer’s substantive post through the Secretary
to his Ministry and the Secretary to the Ministry
under which the public Corporation to which it is
proposed to release the offcer.”
It is therefore apparent that, in order to obtain a release,
it is necessary to make an application as prescribed in Clause
2:3 of chapter V of the Establishment Code to the Appoint-
ing Authority, for such authority to consider the release. It
was common ground that the public Service Commission
was the Appointing Authority of the petitioner and therefore
it was necessary for the public Service Commission to have
sanctioned the release of the petitioner.
Learned Deputy Solicitor General for the respondents,
referred to provisions contained in the Universities Act,
No. 16 of 1978 as amended and drew our attention to section
77(1) of the said Act, which states as follows:
“At the request of a Higher Educational Institution, an
offcer in the Public Service may, with the consent of that
offcer, the Secretary to the Ministry by or under which
that offcer is employed, and the Secretary to the Ministry
charged with the subject of Public Administration, be tem-
porarily appointed to the staff of the Higher Educational
Institution for such period as may be determined by such
Institution with like consent, or be permanently appointed
to such staff.”
In terms of the provisions of section 77(1) of the Univer-
sities Act, read with Clause 2:3 of chapter V of the Estab-

54 Sri Lanka Law Reports [2011] 1 SRI L.R.
lishments Code, the release of the petitioner from the Siyane
National College of Education could be made only if such
release was sanctioned by the public Service Commission,
which was the Appointing Authority, with the concurrence of
the Secretary to the Ministry of Education, under which the
Open University functioned at the time concerned.
It is also to be clearly noted that although in terms of
Clause 2:1 of chapter V of the Establishments Code the
petitioner could be released only with the sanction of the
public Service Commission, that being the Appointing
Authority in terms of Clause 2:3 of chapter V of the Estab-
lishments Code, the petitioner’s application for permanent
release should be considered by the Secretary to the Ministry
of Education and the Secretary to the Ministry under which
the Open University had functioned. Since at the time under
review the Open University had come within the purview of
the Ministry of Education, it was necessary that the Secretary
to the Ministry of Education consider the petitioner’s
application for a permanent release.
the public Service Commission, although it had the fnal
authority either to sanction or to refuse the application for
a permanent release, it is quite apparent that it was essen-
tial to have obtained the recommendations and observations
from the Secretary of the Ministry of education as that off-
cer was in a better position to analyse whether the petitioner
could be granted such a release.
The Secretary to the Ministry of Education by letter dated
25.08.2004 had informed the petitioner that his request
cannot be acceded to, as he had not completed the obligatory
service period on his return to the country. The Secretary to
the Ministry of Education, by letter dated 03.11.2005 had

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 55
referred to several other factors on which the scholarship had
been granted to the petitioner and had also drawn attention
to the provisions contained in the Minutes of the Sri Lanka
teacher educator’s Service. Referring to the selection of the
petitioner for the 3 year scholarship to further his studies at
the university of Wollongong in Australia, the Secretary to
the Ministry of Education had stated thus:
—ví,sõ' t,a' ã' tia' mS' fmf¾rd uy;d jõkshd cd;sl wOHdmk
úoHd mSGhg uq,a m;aùu ,enQ YS%' ,x' .=' w' fia' 2 – II fY%AKsfha iaÓr
lÓldpd¾hjrfhls' fudyq wdpd¾h Wmdêh i|yd .=re wOHdmk yd
.=re ia:dmk jHdmD;sfhka cd;sl wOHdmk úoH mSG lÓldpd¾hjrekag
fjkafldg we;s úfoaY YsIH;ajhla ,en 2001'01'14 isg 2004'01'01 olajd
´iafÜ%,shdfõ fjdf,dka.ka úYaj úoHd,fha bf.kqu ,nd we;'
' ' ' ' '
.=re wOHdmk yd .=re ia:dmk jHdmD;sh u.ska .=re wOHdmk{hka
wdh;k jYfhka j¾. fldg Tjqkag foaYSh yd úfoaY YsIH;aj ,nd §
we;' fuys§ cd;sl wOHdmk úoHd mSG .=re uOHia:dk cd;sl wOHdmk
wdh;kh yd úYajúoHd, jYfhka wdh;k j¾. lr tla tla wdh;k
j,g ksYaÑ; YsIHhka ixLHdjla fjkafldg we;' fuu YsIHhkag cd;sl
wOHdmk úoHd mSGj,g ,nd§ we;af;a úoHd mSG moaO;sfha .=Kd;aul
ixj¾Okh iy;sl lrkq msKsih' tA wkqj Wla; ks<Odßhdg fulS
YsIH;aj ,nd § we;af;ao úoHd mSG moaO;sfha .=Kd;aul ixj¾Okhg
lemùu i|ydh'˜
This letter clearly indicates the basis on which the
petitioner was selected for the scholarship in question and
the objectives the Government wished to achieve through
such a scholarship.
When a lecturer is sent on a scholarship to further his
studies, the intention of the relevant authority is to see that
the scholar on his return would be in a position to serve that

56 Sri Lanka Law Reports [2011] 1 SRI L.R.
institution for a stipulated period. In the event that offcer
is unable to serve such obligatory period then he should be
in a position to pay the money expended during that period
in accordance with the agreement he had entered into with
the relevant institution. When scholarships are granted for
the purpose of professional development of its staff members,
any institution would require such an offcer to continue to
serve in that place, at least for a specifc period.
The provisions contained in the Minutes of the Sri Lanka
Teacher Educator’s Service, substantiates this position.
According to Clause 21 of the said Minute, which deals with
professional development, it is clearly stated that,
“Scholarships, attachments and study tours may be
awarded to the member of the Service for study within
Sri Lanka or abroad depending on the suitability of
the candidate and the requirements of the respective
programmes and the recommendations of the Colleges
of Education Board to enable the Teacher Educators
to become more professionally qualifed. the selection
procedure and other requirements for selection will be
stipulated by the Secretary of the Ministry. The Teacher
Educators on completion of the course of study tour or
attachment are required to continue to serve as Teacher
Educators.”
It is therefore abundantly clear that the petitioner had
to serve the obligatory service period at the Siyane National
College of Education and according to the Agreement the
petitioner was bound to serve the Government unless other-
wise directed, for a period not less than 8 years and 7 months
at the Siyane National College of Education. It is not disputed