Law-Report-part-3.pdf

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FUNDAMENTAL RIGHT – Constitution – Article 12(1) – Right to equality – All 57
persons are equal before the law?
Dr. Perera v. Justice Perera and 11 others
(Continued from Part 2)
WRIT OF CERTIORARI – Admission of a child to school – Selection 75
overturned by the appellate Panel – Site Inspection – Residence – Irratio-
nal and unreasonable decision? – Public duty cast on authorities?
Sesadi Subasinghe (appearing through her next friend) Vs.
Principal, Vishaka Vidyalaya And 12 Others
(Continued in Part 4)
OFFENSIVE WEAPONS ACT 18 OF 1966 AS AMENDED BY ACT 2 OF 67
2011 – Does the Court of Appeal have jurisdiction to entertain or pro-
ceed or determine applications under and in terms of Section 10
with effect from 28.11.2011 – Operative date the law was certifed –
Interpretation Ordinance Section 6 (3) Constitution – Article 154 (P).
Albi v. Attorney General And Another

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 57
that at the time the petitioner sought his permanent
release from the public service, he had served only a period of
nine (9) months at the Siyane National College of Education
and one (1) year at the University of Peradeniya on a tem-
porary release. It is therefore evident that the petitioner had
not served the required obligatory period at the relevant
Institution. In these circumstances, when the Secretary
of the Ministry of Education has clearly refused to recom-
mend the permanent release of the petitioner, it would not be
possible to fnd fault with the decision of the Public Service
Commission to have refused the petitioner’s application to
release him permanently.
The Assistant Secretary, on behalf of the Secretary to the
Public Service Commission, by his letter dated 20.12.2005
had informed the Secretary, Ministry of Education that
the Public Service Commission had decided to refuse the
application made by the petitioner to release him perma-
nently to the Open University (10R3). Accordingly by letter
21.12.2005 the Secretary to the Ministry of Education had
informed the petitioner that since it is not possible to rec-
ommend the permanent release of the petitioner, that his
temporary release to the University of Peradeniya has come
to an end on 30.09.2005 and therefore the petitioner should
report to the Siyane National College of Education within 14
days from 21.12.2005. The letter had further stated that,
—fuÈk isg Èk 14 ld,hla ;=<§ Tfí fmr fiajd ia:dkh jk ishkE
cd;sl wOHdmk úoHd mSGhg jd¾;d lr ta nj mSGdêm;s u.ska ud fj;
jd¾;d l< hq;=h'
tfia fkdjkafka kï úfoaY YsIH;ajh i|yd Tn fjkqfjka jeh lr
we;s iïmQ¾K uqo,a wdmiq wh lr .ekSug kS;Hdkql+,j lghq;= lrk
njo ldreKslj okajñ'˜ (10R4).

58 Sri Lanka Law Reports [2011] 1 SRI L.R.
It is not disputed that the petitioner had not reported for
duty within the given time period. By letter dated 27.06.2006,
the President (Head) of the Siyane National College of
Education had informed the petitioner (P18) that he would be
treated as a person who has vacated his post.
Chapter V of the Establishments Code refers to vacation
of post. Clause 7 of chapter V according states that,
“7.1 An offcer who absents himself from duty without
leave will be deemed to have vacated his post
from the date of such absence and he should be
informed accordingly at once by registered post or
by personal delivery to him.
7.2 An order of vacation of post under this section can
be issued by the Disciplinary Authority or a Staff
Offcer who is a local Head of Department.
7.3 Charges should not be framed against him nor
should he be called upon to submit an explanation
for his absence without leave.
7.4 If he volunteers an explanation within a reasonable
time (the Disciplinary Authority can determine the
‘reasonable time’ for furnishing the explanation),
it should be considered by the appropriate
Disciplinary Authority in terms of the disciplinary
rules, and permission to resume duties may be
allowed or refused by that Authority.”
Clauses 7:1 to 7:4 clearly establish the fact that in the
event there is a vacation of post issued to an offcer and in the
event such offcer attempts to volunteer an explanation, that
should be carried out according to the procedure laid down

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 59
in Clause 7 of chapter V of the Establishment Code. If and
when such an explanation is volunteered within a reason-
able time, the appropriate disciplinary authority may allow or
refuse permission to resume duties.
As stated earlier, by letter dated 21.12.2005 (10R4), the
petitioner was requested to report for duty at the Siyane
National College of Education within 14 days from that date.
The petitioner had not complied with the said request and
had continued to work at the Open University for a further
period of six months and the President (Head) of the Siyane
National College of Education had served the vacation of post
notice on the petitioner on 27.06.2006 (P18).
Thereafter on 20.07.2006 the petitioner had tendered
an appeal to the Public Service Commission on the notice of
vacation of post. Clause 37 of chapter XLVIII of the Establish-
ments Code states as follows:
“37.1 Where an offcer who has been served with a Notice
of Vacation of Post under the provisions of chapter
V of Part 1 of the Establishments Code intends to
tender an appeal against such Notice, such appeal
should be tendered to the appropriate authority
before the expiry of three months from the date on
which the Notice of Vacation of Post was served on
him.
37.2 If the Disciplinary Authority considers, in view of
the matters represented in the appeal submitted
to him in terms of sub-section 37.1 above, that the
offcer has not reported for duty because of accept-
able reasons, he may order the reinstatement of the
offcer after imposing punishment for not reporting
for duty without permission.

60 Sri Lanka Law Reports [2011] 1 SRI L.R.
37.3 Where the Disciplinary Authority has rejected the
reinstatement of the offcer, he may appeal against
such decision to the Cabinet of Ministers or the
Public Service Commission, as the case may be
within six months from the date of such decision.”
The aforementioned provisions therefore are quite clear
that the disciplinary authority could order the reinstatement
of the offcer after imposing punishment for not reporting for
duty without permission.
In fact the Public Service Commission had acted in terms
of the provisions laid down in Clause 37 of chapter XLVIII of
the Establishments Code. The letter dated 14.11.2008 sent
by the Assistant Secretary, Public Service Commission to
the petitioner bears ample evidence to this position. The said
letter (P25) was in the following terms:
—by; lreKg wod,j Tn úiska bÈßm;a lr we;s 2008'09'18 Èke;s
,smsh yd nef|a'
tu ,smsh yd tA yd iïnkaOfhka wOHdmk f,alï úiska bÈßm;a lrkq
,enQ lreKq i<ld neÆ rdcH fiajd fldñIka iNdj my; i|yka
fldkafoais j,g hg;aj Tng kej; fiajfha msysgqùu i<ld ne,Sug
;SrKh lr we;'
» Tn úiska wksjd¾h fiajd ld,hla fiajh lsÍug rch iu.
ne£ we;s .súiqu lvlsÍu iïnkaOfhka Tnf.ka rchg wh
úh hq;=" wOHdmk f,alï úiska h:d ld,fha§ Tn fj; ±kqï
fok uqo,a m%udKh 2008 foieïn¾ 31 Èkg fmr f.jd wjika
l, hq;= fõ'
»» Tn úiska tfia f.ùu isÿ lsÍfuka wk;=rej kej; fiajfha
msysgqùu rdcH fiajd fldñIka iNdj úiska isÿ l<fyd;a bka

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 61
miq rdcH fiajfhka YS% ,xld újD; úYaj úoHd,fha fiajh i|yd
uqod yeÍu i,ld ne,Sug 2008'11'30 Èkg fyda Tnf.a fiajh
tu úYaj úoHd,hg wjYH njg úYajúoHd,h úiska b,a,Sula
wOHdmk wud;HdxYfha f,alï fj; bÈßm;a l< hq;=h' tfia
lrkafka kï muKla rdcH fiajfhka mQ¾K ld,Skj uqod
yeÍu ms<sn|j rdcH fiajd fldñIka iNdj ;SrKh .kq ,nk
nj ;j ÿrg;a ksfhda. lr we;'
A careful consideration of the relevant provisions
contained in the Establishments Code and the decision
conveyed to the petitioner by the Public Service Commission
by its letter dated 14.11.2008 (P25) shows that, the Public
Service Commission had examined the appeal tendered by
the petitioner. It is to be borne in mind, as has been clearly
stated by the petitioner himself, that immediately after his
return to the country on 05.01.2004, the petitioner had
been applying for positions in other Universities. The frst of
such was to the University of Peradeniya on 27.02.2004. He
had assumed duties at the University of Peradeniya without
obtaining his release from the Public Service in terms of
the relevant provisions in the Establishments Code on
01.10.2004. As referred to earlier, since February 2004, the
petitioner had accepted several other appointments with-
out obtaining approval for a permanent release from the
Appointing Authority. Having considered the aforementioned,
the Public Service Commission had arrived at the decision,
which was conveyed to the petitioner by letter dated
14.11.2008 (P25).
On a consideration of the totality of the aforemen-
tioned, it is evident that the decision of the Public Service
Commission cannot be said to be unreasonable and
unlawful.

62 Sri Lanka Law Reports [2011] 1 SRI L.R.
The petitioner had stated that the Public Service
Commission had allowed similarly circumstanced Teacher
Educators to serve in higher educational institutions and no
vacation of post notices had been served on them. Reference
was made to one A.C.A.M. Mansoor, D.C.P. Perera and
P.R.K.A. Vitharana.
Learned Deputy Solicitor General had made submissions
on the aforementioned Teacher Educationists.
According to the said submissions, Ms. D.C.P. Perera,
was not released to take up the appointment at the National
Institute of Education. Accordingly she had retired under
Circular No. 30/1988. Mrs. P.R.K.A. Vitharana had not been
subject to any obligatory service. However, she had not been
released from the Public Service and she had retired under
Circular No. 30/1988 (X3).
A.C.A.M. Mansoor had read for a Degree in Master of
Education at the University of Wollongong in Australia. He
had been away on a scholarship and study leave was granted
from 01.08.1998 to 31.07.1999. According to the Agreement
he had entered into, Mansoor was to serve an obligatory
service period of 4 years to the State. He had returned to the
country one month before the due date and had resumed
duties at the National College of Education at Adalachchanai
on 30.06.1999 and therefore he was required to serve the
State only for a period of 40 months.
After serving the said National College of Education for
33 months, he had applied for a temporary release from the
Public Service to take up the post of Senior Assistant Registrar
at the South Eastern University for a period of 2 years from
11.03.2002 (X7). He was permitted to take up the said

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 63
appointment on 11.07.2002 pending his appeal before the
Public Service Commission. The Public Service Commission
had granted approval for the said application on 24.06.2003
(X8). At the time he took up the appointment on 11.07.2002
the said Mansoor had served approximately 37 months out of
his 40 months obligatory period of service. He was sanctioned
a permanent release only on 11.03.2007.
It is to be noted that, Mansoor had been away in Australia
only for a period of 11 months on a scholarship and had
to serve an obligatory service period of 40 months whereas
the petitioner was away for a period of over 3 years on two
scholarships and therefore he had to serve an obligatory
service period of 8 years and 7 months. As stated earlier,
at the time the petitioner sought his release to the Open
University, he had served the Siyane National College of
Education only for a period of 9 months and had served at
the University of Peradeniya for a period of 1 year. In such
circumstances it would not be correct to state that the
petitioner and the said Mansoor are similarly circumstanced.
The petitioner’s complaint was that his fundamental
rights guaranteed in terms of Article 12(1) was violated as
the respondents had decided to issue a notice of vacation
of post on him and the Public Service Commission had
determined that the petitioner must pay to the State such
sum of money in lieu of obligatory service to the Government
and until such time, that he was not allowed to serve at any
higher educational institute. These decisions, according to
the petitioner are arbitrary, irrational and unreasonable and
violative of Article 12(1) of the Constitution.
Article 12(1) of the Constitution deals with the right to
equality and states that,

64 Sri Lanka Law Reports [2011] 1 SRI L.R.
“All persons are equal before the law and are entitled to
the equal protection of the law.”
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 circumstanced. Referring to the concept of
equality before the law, Sir Ivor Jennings (The Law and the
Constitution, 3rd edition. Pg. 49) had stated that,
“It assumes that among equals the laws should be equal
and should be equally administered, that like should be
treated alike.”
It is therefore evident that what Article 12(1) of the
Constitution postulates is 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. In other words
unequals cannot be treated equally nor equals be treated
unequally.
Every wrong decision cannot and would not attract the
constitutional remedies guaranteed under the fundamental
rights incorporated in our Constitution. As stated earlier,
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. In
Snowden v. Hughes(1) it was stated thus:
“The unlawful administration. . . of a state statute fair
on its face, resulting in unequal application to those who

Dr. Perera v. Justice Perera and 11 others
SC (Dr. Shirani A. Bandaranayake, J) 65
are entitled to be treated alike, is not a denial of equal
protection unless there is shown to be present in it an
element of intentional or purposeful discretion.”
When careful consideration is given to the facts of the
petitioner’s case, it is not even possible to state that there
had been any unequal treatment since the petitioner’s
position is quite different to that of Mansoor, who had only 3
more months to serve as his obligatory period, whereas the
petitioner had served only 9 months out of his 40 months
obligatory service at the Siyane National College of Education.
As has been clearly demonstrated in the well known case of
Ram Krishna Dalmia v. Justice Tendolkar(2), classifcations are
permitted provided that,
“1. the classifcation must be founded on an
intelligible differentia which distinguish persons
that are grouped in from others who are left out of
the group; and
2. that the differentia must bear a reasonable or a
rational relation to the objects and effects sought
to be achieved.”
Accordingly the classifcation must not be arbitrary,
but should be based on substantial difference bearing a
reasonable relationship to the object sought to be achieved.
It is common ground that the petitioner had obtained
study leave from the Siyane National College of Education
for his higher studies. Such absence from normal teaching
and other related work would undoubtedly assist a lecturer
to further his studies and also would provide an opportunity
to enhance their skills and expertise in the relevant feld. It

66 Sri Lanka Law Reports [2011] 1 SRI L.R.
would also bring in an opportunity to meet scholars from
other countries and exchanges views and to establish links
with those Universities. The objective of granting study leave
would therefore be to ensure that on his return, the lecturer
would impart his experience to that institution, which had
given him the opportunity to be away for a signifcant
period.
Considering all the aforementioned facts and circum-
stances, it is therefore clear that the decision taken by the
Public Service Commission with regard to the petitioner
in no way could be categorised 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.
For the reasons aforementioned I hold that the petitioner
has not been successful in establishing that the respondents
has violated his fundamental rights guaranteed in terms of
Article 12(1) of the Constitution. This application is accord-
ingly dismissed. There will be no costs.
Ratnayake, P. C., J. – I agree.
Imam, J. – I agree.
application dismissed.

Albi V. Attorney General And Another
CA 67
ALBI V. ATTORNEY GENERAL AND ANOTHER
COURT OF APPEAL
RANJIT SILVA, J.
LECAMWASAM, J.
CA. 43/2011
MARCH 21TH,28TH 2011
Offensive Weapons Act 18 of 1966 as amended by Act 2 of 2011 –
Does the Court of Appeal have jurisdiction to entertain or proceed
or determine applications under and in terms of Section 10 with
effect from 28.11.2011 – Operative date the law was certifed –
Interpretation Ordinance Section 6 (3) Constitution – Article
154 (P).
Held:
(1) The amending Act No. 2 of 2011 does not contain any transitional
provisions. It is completely silent with regard to the pending
matters.
Per Ranjith Silva, J.
“Whatever the intention may have been of the legislature, canons
and the rule of interpretation cannot be brushed aside lightly or
disregarded, the Courts can ascertain the intention of the legis-
lature only if the words of a particular section or provision are
ambiguous – in the amending Act we fnd that there is no such
ambiguity – therefore it is not necessary for the Court to go on a
voyage of discovery to ascertain the intention of the legislature in
enacting Act 2 of 2011 . . . .”
Per Ranjith Silva J.
“We are not possessed of the powers or the jurisdiction to transfer
those pending applications to the relevant High Courts”.
aPPlICatIon for bail, on a preliminary objection taken.
Cases referred to :-
(1) A.G. vs. Nilanthi – 2 Sri LR 1997
(2) A. G. vs. Francis – 47 NLR 467

68 Sri Lanka Law Reports [2011] 1 SRI L.R.
(3) D. P. P. vs. Lamp – 2 All ER 499
(4) Thambiah Selvaratnam, Asst. Commissioner of Co-operative
Development, Jaffna – 79 (2) NLR 104 at 108.
Dr. Ranjith Fernando for Petitioner.
Yasantha Kodagoda DSG for Respondents.
Cur.adv.vult
April 01st 2011
RanJItH sIlva, J.
When this matter came up before this court on 29th March
2011 the Learned Deputy Solicitor General raised the follow-
ing issue;
Should the Court of Appeal continue to exercise juris-
diction regarding applications fled in the Court of Appeal
prior to 28 January 2011 seeking bail for persons charged
with or accused of having committed offences in terms of the
Offensive Weapons Act No. 18 of 1966 as amended by act
No. 2 of 2011.
Counsel for the petitioner contended that notwithstand-
ing the coming into operation of the Offensive Weapons
Amendment Act No. 2 of 2011, the Court of Appeal should
continue to exercise jurisdiction in respect of pending
matters on such applications, fled before the appointed date
and where the Court has issued notices in that behalf, by
virtue of section 6 (3) (c) of the Interpretation Ordinance.
The position taken by the Deputy Solicitor General on
behalf of the Attorney General was that the Court of Appeal
does not have jurisdiction to entertain, proceed or determine
applications under and in terms of section 10 of the Offensive

Albi V. Attorney General And Another
CA (Ranjith Silva, J.) 69
Weapons Act as amended by the Act No. 2 of 2011 with
effect from 28 January 2011 and that the provisions of
section 6(3) (c) of the Interpretation Ordinance does not have
any application to the matter in hand.
The learned Deputy Solicitor General contended that this
court possessed the exclusive jurisdiction of the frst instance
to entertain and consider applications seeking bail in respect
of persons charged with or accused of having committed
offences in terms of the Offensive Weapons Act till January
2011, that in early January 2011 the Offensive Weapons
Act was amended by Parliament by enacting the Offensive
Weapons Amendment Act. No. 2 of 2011 and the new law was
certifed by the Hon. Speaker on 28th of January 2011 and
that it became operative on the day on which the new law was
certifed by the Speaker, i.e. 28 January 2011.
Section 10 of the Offensive Weapons Act as it was, reads
thus;
Not withstanding any thing to the contrary in the Code of
Criminal Procedure Act or any other written Law, no person
charged with or accused of an offence under this Act shall be
released on bail except on orders of the Supreme Court.
In Attorney General vs. Nilanthi(1) it was held that the
reference to the Supreme Court in Act No. 18 of 1966 should
be deemed and read as a reference to the Court of Appeal.
The revised legislative enactments of 1980 omitted to refer to
the Supreme Court and instead has referred to the Court of
Appeal as the court which has the jurisdiction to deal with
applications made under and in terms of section 10 of the
Offensive Weapons Act.

70 Sri Lanka Law Reports [2011] 1 SRI L.R.
Section 2 of Act No. 2 of 2011 reads as follows;
“Section 10 of the Offensive Weapons Act No. 18 of 1966
is hereby repealed and the following section substituted
therefor;

Section 10. No Person charged with, or accused of, an
offence under this Act, shall be released on bail except on
the order of the High Court of the province established under
Article 154p of the Constitution, for such province.”
The Deputy Solicitor General contended that the law can
be amended in numerous ways:
(a) by allowing the law which was brought into force for a
specifed period of time to lapse (expiration)
(b) by suspending the operation of law
(c) by repealing a law (only)
(d) by repealing a law and substituting the repealed provision
by a new provision.
(e) by introducing a new provision in addition to the existing
provisions.
He contended that section 10 of the Offensive Weap-
ons Act has been amended using this fourth mechanism
that is by repealing section 10 of Act No. 18 of 1966 and by
substituting therefor a new section.
Section 6 (3) of the Interpretation Ordinance reads as
follows;
Whenever any written law repeals either in whole or part a
former written law, such repealing shall not, in the absence of

Albi V. Attorney General And Another
CA (Ranjith Silva, J.) 71
any express provision to that effect, affect or would be deemed
to have affected –
(a) the past operation of any thing duly done or suffered
under the repealed written law;
(b) any offence committed, any right, liberty, or penalty
acquired or incurred under the repealed written law;
(c) any action, proceeding, or thing pending or incomplete
when the repealing written law comes into operation,
but every such action, proceeding, or thing may be
carried on and completed as if there had been no
such repeal.”
The Learned Deputy Solicitor General admitted that
the meaning or the primary purpose of Section 6 (3) of the
Interpretation Ordinance was to prevent ex post facto
enforcement of new legislation and to protect against having
to terminate ongoing proceedings prematurely and haphaz-
ardly. He has cited A. G. vs. Francis(2) and DPP vs. Lamb(3)
which have no bearing or relevance to the facts and circum-
stances of the instant case.
The counsel went on to argue strenuously that section
6(3)(c) of the Interpretation Ordinance will apply only to
instances where a specifc provision has not been made. In
support of this argument he cited the judgment of Ratwatte,
J. in Thambiah Seewaratnam v. Assistant Commissioner of
Cooperative Development, Jaffna(4) at 108 wherein it was held
that section 6 (3) (c) of the Interpretation Ordinance will not
apply as that section would apply only in cases where there
is no specifc provision made in the repealing Act.
In other words if the amending Act does not contain any
express provision as to how such repeal should affect the

72 Sri Lanka Law Reports [2011] 1 SRI L.R.
pending or continuing matters every such action proceed-
ing or thing may be carried on and completed as if there
had been no such repeal. In other words if there is specifc
provision which prohibits the continuation of pending
applications in a particular forum this particular section
of the Interpretation Ordinance would not apply but in the
absence of any such express provision Section 6(3) (c) would
apply. Thus any action proceeding or thing pending or incom-
plete when the repealing written law comes into operation,
such action proceeding or thing may be carried on and com-
pleted as if there had been no such repeal.
In this regard I would like to refer to certain parts of the
Judgment in Seewaratnam vs. Assistant Commissioner of
Corporative Development, Jaffna, (supra) which shows that,
in that case the facts and circumstances are different from
the facts and circumstances of this case. In that case an
award made on 16 December 1971 under the Co-operative
Societies Ordinance as amended was sought to be enforced
under the provisions of section 59 of the co-operative
Societies law No. 05 of 1972. It was submitted that the Magis-
trate’s Court had no jurisdiction to entertain the application
to enforce this award and that the provisions of section 70 (3)
of law No. 05 of 1972 did not apply to awards made under the
earlier Law. Reliance was also placed on section 6 (3) (c) of the
Interpretation Ordinance.
Held: that an award made under the Co-operative Societies
Ordinance as amended can be enforced under section 59 of
the Co-operative Societies law, No. 05 of 1972. Section 70
(3) of the new law applies to such awards. Section 6 (3) of
the Interpretation Ordinance has no application in such an
instance and the Magistrate had jurisdiction to entertain
such applications.

Albi V. Attorney General And Another
CA (Ranjith Silva, J.) 73
The reasoning behind his Judgment appears at page 108
of the said Judgment. Their Lordships referring to section
70 (3) opined that the Magistrate’s Court had jurisdiction to
entertain the application under the new law as the new law
contained specifc provision [Section 70 (3)] and that section
6 (3) (c) would apply only in cases where there is no specifc
provision made in the repealing Act.
Section 70 (3) of the Co-operative Societies Law –
“All appointments and orders made, notifcations and no-
tices issued, and suits and other proceedings instituted, or
deemed to have been made, issued or instituted and all dis-
putes that have arisen under any enactment repealed by this
law, shall, so far as may be, be deemed to have been respec-
tively made, issued and instituted and to have arisen under
this law.”
In the matter before us, I fnd that there are no such
provisions made, let alone specifc provisions, to deal with
a situation of the sort. Amending Act No. 2 of 2011 does not
contain any transitional provisions. It is completely silent
with regard to the pending matters. Whatever the intention
may have been of the legislature, canons and the rules of
interpretation cannot be brushed aside lightly or disregarded.
The courts can ascertain the intention of the legislature
only if the words of a particulars section or provision are
ambiguous. In the amending Act, we fnd that there is no
such ambiguity. Therefore, it is not necessary for this court
to go on a voyage of discovery to ascertain the intention of the
Legislature in enacting Act No. 02 of 2011.
On the other hand there is a presumption that the
legislature would always act rationally and wisely. If this

74 Sri Lanka Law Reports [2011] 1 SRI L.R.
court were to assume that all the pending applications for
bail should stand removed from 28 January 2011 onwards
to the respective High Courts from the day of the Speaker’s
certifcation then what would be the result or the outcome
or the effect of the hundreds of orders this Court made in the
interim till the amendment was brought to the notice of this
Court by the State on 21-03-2011. Are those orders to be
declared null and void? Should they be branded as nullities?
To this my answer is “No”. We are not possessed of the powers
or the jurisdiction to transfer those pending applications to
the relevant High Courts. If the litigants were to fle fresh
applications or even if the pending applications were to be
transferred to the relevant High courts the Litigants would
have to retain the services of different lawyers from those
areas at a considerable cost much against their will and at
tremendous inconvenience.
For the reasons adumbrated, I hold that this court has
the jurisdiction to hear and dispose those applications for
bail, fled before 28th of January 2011 in this court under
section 10 of the Offensive Weapons Act despite the amend-
ment Act No. 2 of 2011.
lekamwasam, J – I agree.
Preliminary Objection Overruled.

Sesadi Subasinghe (Appearing Through Her Next Friend) Vs. Principal,
CA Vishaka Vidyalaya And 12 Others 75
SESADI SUBASINGHE (APPEARING THROUGH HER NExT
FRIEND) VS. PRINCIPAL, VISHAkA VIDYALAYA
AND 12 OTHERS
COURT OF APPEAL
SATHyA HETTIGE PC.J (P/CA)
GOONERATNE, J.
CA. 138/2010
AUGUST 23, 2010
NOVEMBER 22, 2011
Writ of Certiorari – Admission of a child to school – Selection
overturned by the appellate Panel – Site Inspection – Residence –
Irrational and unreasonable decision? – Public duty cast on au-
thorities?
The petitioner a minor child appearing through her next friend, her
father complained that she was initially selected under the category of
children of public servants for admission to Vishaka Vidyalaya. However
the 13th respondent objected and consequent to an inquiry, the
petitioner had been omitted from the fnal list of selection by the appeal
panel. The petitioner complains that this decision not to select her by
the panel is ultra vires.
Held:
(1) The appellate panel and the selection board including the
principal of the school is expected to perform a public duty based
on Circulars issued by the Education Department. Adopting a very
adhoc method is unsatisfactory to decide ones future in education
which should be decided very carefully.
Per Anil Gooneratne, J.
“In my view the procedure and the method adopted in the
instant case by the appeals panel and others who are duty bound to
select and admit children appear to be highly unreasonable and
irrational.”
(2) Irrationality is one of the common law grounds of judicial review
of administrative action. It is presumed that public authorities are

76 Sri Lanka Law Reports [2011] 1 SRI L.R.
never empowered to exercise their powers irrationally therefore
irrational action by a public authority is considered to be ultra-
vires.
(3) The respondents have not been able to disprove the requirements
of residence in terms of the Education Department Circulars as
regards the petitioner.
aPPlICatIon for a Writ of Certiorari.
Cases referred to :-
(1) Council of Civil Services Union vs. Minister for the Civil Service –
1985 – AC 374 HL
(2) Associated Provincial Picture House Ltd vs. Wednesbury Corporation
– 1948 – 1 KB 223
(3) Edwards vs. Banstow – 1956 AL 14
(4) R vs Secretary of State for Environment ex parte Fieller Estate
(Convey Ltd) – 1989 – 57 P & CR 424.
(5) R vs. Superintendent, Cheswick Police Station ex parte Sackteder –
1918 – 118 Law Times Reports 165
S. Jayawardane for Petitioner.
Janak de Silva SSC for 1- 11 Respondents.
M. I. M. Izmullah for 13th respondent.
Cur.adv.vult
January 17th 2011
anIl gooneRatne, J.
This is an application for Writs of Certiorari and
Mandamus in a school admission case, namely Vishaka
Vidyalaya, Colombo 5. Petitioner a minor child is appearing
through her next friend the father of the child. Child was in
fact selected for admission by document P18 (temporary list).
Petitioner was initially selected under the category of children
of public servants, who secured 91 marks. However the 13th
Respondent had objected to the admission of the Petitioner and

Sesadi Subasinghe (Appearing Through Her Next Friend) Vs. Principal,
CA Vishaka Vidyalaya And 12 Others (Anil Gooneratne, J.) 77
consequent to an inquiry, the Petitioner had been omitted
from the fnal list of selection by the Appeal/Objection Panel
being 7th to 10th Respondents to this application. Petitioner
complains that the decision not to select by the panel is ultra
vires for the reasons set out in paragraph 33 of the petition.
Petitioner has supported her application with several
documents. The Interview panel named as the 2nd & 6th
Respondent accepted the application of the Petitioner and
selected her for admission to Vishaka Vidyalaya. It was on
an objection by the 13th Respondent that the Petitioner lost
her place at the said school. This court needs to consider and
decide on the legality of the appeal procedure and it’s decision
pertaining to the Petitioner. It appears to this court that the
Petitioner was deprived of entry to the school on the issue
of residence. I have to observe that after the closure of all
pleadings in this application 1st to 11th Respondents thought
it ft to tender documents marked as A1 to A4 for which the
Petitioner did not object. These documents were tendered by
motion dated 07.09.2010. I wonder as to why the 1st to 11th
Respondents could not tender those documents (other than
the Supreme Court decision) along with their objection which
were fled on 26.05.2010? It is an after thought?
The Petitioner has also sought relief against the 13th
Respondent, in terms of sub paragraph (e) of the prayer to
the petition.
The 1st to 11th Respondents in their objections state inter
alia that subsequent to the objections of the 13th Respondent
the 3rd, 7th, & 9th Respondents caused an inspection of
the residence of the Petitioner and it was found that the
Petitioner was not residing at the given address to qualify
under clause 6.5. 1 of P8. It is also pleaded that the cut off

78 Sri Lanka Law Reports [2011] 1 SRI L.R.
marks were reduced in view of the exclusion of the Petitioner
and few other children and the 13th Respondent got the beneft
of such exclusion. Other than the above the objection and
affdavit of the above Respondents merely contain a bare
statement, as to fnd that Petitioner was not residing at
the given address. None of the documents and material
required to be maintained under clause 10:4 & 10:5 of P8 was
produced for perusal of this court. As such 1st to 11th
Respondents seems to rely only on bare statements. The
learned Counsel who appeared for the State may have thought
it ft to rely only on bare statements and to fortify his position
with the subsequent material submitted to court inclusive of
a Supreme Court decision marked A1 – A4.
On examining the affdavit of the 7th Respondent the
Chairman of the so called Appeal Panel in her statement
contained in paragraph 10 of the affdavit avers that ‘in pur-
suance of the objections, I along with 3rd and 9th Respondents
caused an inspection of the place, where the child along with
the father were said to have been in residence. This sen-
tence gives the impression that only three persons visited the
residence in question. The next sentence it is stated that
I and the 8th – 10th Respondents found that they were not
residing at the address given to qualify under clause 6.5.11
of P8. There is some inconsistency in these two sentences.
Is it the position that the 10th Respondent did not visit, the
residence, but found that the Petitioner was not a resident.
The date and time of the so called visit is not mentioned in
the affdavit of the 7th Respondent. How does one come to a
conclusion that residence was not found to be the residence
of the Petitioner? Where is the supporting material to accept
the fndings of the Appeal Panel, in the affdavit of the 7th
Respondent? Before I proceed to comment on A3, in the

Sesadi Subasinghe (Appearing Through Her Next Friend) Vs. Principal,
CA Vishaka Vidyalaya And 12 Others (Anil Gooneratne, J.) 79
absence of cogent reasons and acceptable documentation
placed before court, I am reluctantly compelled to reject the
contents of paragraph 10 of the 7th Respondent’s affdavit.
A child selected initially is to be displaced by objection
of another party who is attempting to secure a placement in
the school, need to be considered very seriously and care-
fully by the Appellate Panel. This is the child’s future and the
authorities have led the Petitioner and his family to entertain
legitimate expectation as regards having a good education
at a leading school in the island. The Appellate Panel and
the selection board including the Principal of the school is
expected to perform a public duty based on circulars issued
by the Education Department, which are in operation for
several years. Adopting very adhoc methods is unsatisfactory
to decide on one’s future in education and should be decided
very carefully especially in the circumstances of the case in
hand. In my view the procedure and the method adopted in
the instant case by the Appeals Panel and others who are
duty bound to select and admit children appears to be highly
unreasonable and irrational.
In arriving at my conclusions the following authorities
were considered and would refer to them as a guide to unrea-
sonableness and irrationality.
Irrationality is one of the common-law grounds of
judicial review of administrative action. It is presumed
that public authorities are never empowered to exercise
their powers irrationally, therefore irrational action by a
public authority is considered to be ultra vires. Although it
denotes behavior that falls short of what is to be expected
of a rational public authority, the precise parameters of

80 Sri Lanka Law Reports [2011] 1 SRI L.R.
the term are unclear and it has been used to describe
a range of behavior. It is often used interchangeably
with the term Wednesburys unreasonableness but has
become the more common term since the case of Council
of Civil Service Union vs. Minister for the Civil Service(1)
in which term irrationality, illegality and procedural
impropriety were used to defne the Common Law grounds
heads of judicial review. Oxford Dictionary of Law 6th
Ed. Elizabeth A Martin & Jonathan Law.
In Lord Diplock’s formal statement on Judicial review
(Wade – Administrative Law 9th Ed. Pg. 1001) describes
irrationality in the following manner.
By ‘irrationality’ I mean what can be now be succinctly
referred to as ‘Wednesbury unreasonableness’ (Associated
Provincial Picture Houses Ltd. v. Wednesbury Corporation(2).
It applies to a decision which is so outrageous in its
defance of logic or of accepted moral standards that no
sensible person who had applied his mind to the question
to be decided could have arrived at it. Whether a decision
falls within this category is a question that judges by their
training and experience should be well equipped to
answer, or else there would be something badly wrong with
our judicial system. To justify the court’s exercise of this,
role, resort I think is today no longer needed to Viscount
Radcliffe’s ingenious explanation in Edwards v. Bairstow(3)
of irrationality as a ground for a court’s reversal of a
decision by ascribing it to an inferred unidentifable
mistake of law by the decision-maker. “Irrationality” by
now can stand upon its own feet as an accepted ground
on which a decision may be attacked by judicial review.

Sesadi Subasinghe (Appearing Through Her Next Friend) Vs. Principal,
CA Vishaka Vidyalaya And 12 Others (Anil Gooneratne, J.) 81
R v. Secretary of State for Environment, ex parte Fielder
Estates (Canvey Ltd)(4) is a good example of a case
illustrating behaviour that has been deemed to warrant
the designation of irrationality. After a planning
application to build houses close to Canvey Island had
been refused, a public inquiry had been set up which
was expected to last for three days. During the inquiry,
one of the objectors, the Canvey Ratepayers Association,
was to present its evidence on the second day. When it
turned up to do so, the Association found that the inquiry
had already been closed by the inspector. After a com-
plaint had been made to the Secretary of State, another
inquiry was set up. But this time, the other parties who
had been present at the frst inquiry, including Fielder
Estates, were not notifed about the second inquiry. It
was held that the conduct of the Secretary of State was
so unreasonable as to verge on the irrational and absurd.
It also amounted to a failure to act with procedural
fairness. Notice that this is another useful example of
where the grounds of review overlap, in that issues of
natural justice are also present in the case.
In R. v, Superintendent, Cheswick Police Station, ex parte
Sacksteder(5) Pickford L. J. remarked that if a deportation
order was “practically a sham, if the purpose behind it is
so illogical as to show the order is not a genuine or bona
fde order, the Court could go behind it”. Although he was
not prepared to say that in every case where there was
an order of deportation or imprisonment, the Court was
entitled to go behind that and see what the motives were
for making that order.
Ordinarily the motion dated 2.9.2010 should have been
rejected. However as the Petitioner did not object to same,

82 Sri Lanka Law Reports [2011] 1 SRI L.R.
we will give our mind to the documents annexed to it,
as follows:
(1) This court need not make any comment on A2.
(2) A4 is a unclear document, photocopy not certifed
(3) A3 is some what diffcult to read, A brief account of the
occupant makes no sense at all only matter admitted
is that Subasinghe occupies one room and a common
kitchen. It is no concern of this court as to how comfort-
able or uncomfortable the occupant Subasinghe, but it
indicates that some form of residence is suggested.
How did the panel get the above information? Who is the
informant? Identity of persons giving details not established.
A3 is a vague, unclear, unsigned document.
This court has no hesitation to reject documents A4 &
A3. Such ambiguous documents should not be produced in a
court of law, to prove a case.
I will now turn to document ‘A1’ which is the Supreme
Court decision. The circumstances of the case in hand is
different. In the Supreme Court case, the child concerned
was never selected by the authorities and unlike the case in
hand where the selection panel selected the Petitioner and
included her in the temporary list. I would agree with the
view of Petitioner that the site inspection done subsequent to
objection inquiry is not valid and in any event the Apex Court
does not make any pronouncement re-site inspection or
provide any guide lines for such inspection. As such this court
is not bound by the decision of the Supreme Court referred
to in document ‘A1’. The said decision of the Supreme Court
does not create a binding precedent as it is distinguished

Sesadi Subasinghe (Appearing Through Her Next Friend) Vs. Principal,
CA Vishaka Vidyalaya And 12 Others (Anil Gooneratne, J.) 83
from the facts of this case. I am unable to blindly follow a
judgment which is produced by the 1st to 11th Respondent,
when all other aspects of the case of the said Respondents
are rejected, weak, unreasonable and irrational.
This court considered the question of residence in
another case namely C.A 270/08 . . . as follows:
Assuming for the sake of argument that such a course
of action is available to the Appeals Panel or that circular
P2 does not prohibit a site inspection. How did the panel
approach this problem? The panel as pleaded in the affdavit
of the 10th Respondent thought it ft to ascertain residence
of the Petitioners by either verifying such proof from the
residents in the area. This court observes that the Appeals
panel was in grave error by verifying facts of residence from
residents of the area. Can a reasonable right thinking person
place any reliance on information provided by the residents?
Who are these residents? Has the 10th Respondent identifed
the persons concerned and pleaded with certainty about the
identity of the residents and placed material to establish non-
residence of Petitioner in his affdavit fled in this court? This
court takes the view that in the absence of cogent reasons for
doing so and an absence of material and more particularly
about the identity of the so called residents in the area, no
reliance could be placed on this aspect of verifying residence
of Petitioner by the Appeals panel. Bare statements cannot
suffce. Nor has the Respondents produced any contempo-
raneous notes of the so called site inspection. One has to
bear in mind the question of good neighbours and bad neigh-
bours? If the persons concerned who are called residents
in the area by the 10th Respondent are not so well disposed
towards the petitioner, what would be the outcome of such site

84 Sri Lanka Law Reports [2011] 1 SRI L.R.
inspection? There is a total lack of proof in this regard which
is not acceptable to a court of law in the manner pleaded
in the affdavit of the 10th Respondent. This is a manifest
error on the face of the record.
I would also at this point of time advert to the following
rules of the Education Department Circular in the
manner submitted to this court by the learned Counsel for the
Petitioner. Further it must be noted that temporary list was
published on 06.11.2009; objection and Appeals Inquiry on
12.10.2009; site inspection 20.12.2009.
The site inspection is done according to the Petitioner
prior to preparation of temporary list to give an opportunity
to the applicant to prove or contradict a contrary position.
Clause 8:3 of P8 reads thus:
—;djld,sl ,ehsia;=j yd fmdfrd;a;= f,aLk m%isoaO lsÍug fmr
mdi,g wdikak mÈxÑlrejkaf.a .Kh hgf;a by; f,aLkj, kï i|yka
<uhskaf.a mÈxÑh ia:dkSh mÍlaIK u.ska ;yjqre lr .; hq;=h' ia:dkSh
mÍlaIKfha § mÈxÑh ;yjqre fkdfõ kï f,aLKfhka bj;a fldg
wNshdpkd yd úfrdaO;d mÍlaIKh i|yd le|úh hq;= h' wjYH jkafka kï
wfkl=;a .K i|yd o ia:dkSh mÍlaIK l< yelsh' hï mqoa.,fhl= mÈxÑ
nj fyda mÈxÑ fkdjk nj miqld,Skj ikd: lsÍug wjYH jqjfyd;a th
ikd: lsÍug yels jk mßÈ ia:dkSh mÍlaIK ms<sn| ish¨ f;dr;=re iu.
jd¾;d ilia fldg ;nd .; hq;=h'˜
Clause 10:4 reads thus:
úfrdaO;d úNd. lsÍfï§ úfrdaO;dj,g ,la jQ <uhdf.a fouõmshkag
ks;Hkql+,j Ndrlrejka úiska bÈßm;a lr we;s ,sms f,aLk muKla ^m%:u
iïuqL mÍlaIKhg bÈßm;a l<& kej; jrla úu¾IKh lrk w;r úfrdaO;dj
±lajQ wh le|jd úfrdaO;dfjys ksrjoH;djh úu¾IKhg ,la l, hq;=h' bkamiq
úfrdaO;djg ,la jQ <uhdf.a fouõmshka ks;Hdkql+, Ndrlrejka o le|jd