022-SLLR-SLLR-2008-V-2-BAMUNUARACHCHIGE-v.-UNIVERSITY-OF-PERADENIYA-AND-OTHERS.pdf
QA Bamunuarachchige v University of Peradeniya and others 219
BAMUNUARACHCHIGEv
UNIVERSITY OF PERADENIYA AND OTHERSCOURT OF APPEALSRIPAVAN, J. (P/CA)
ROHINI PERERA
CA 1722/05APRIL 3, 2007AUGUST 23, 2007
Writ of Certiorari – Decision of University Services Appeals Board – Is it final andconclusive – University Act – Section 87 – Making of a valid decision – Could theCourt allow the issue of invalidity – to be raised in any proceedings where it isrelevant? – Void acts – Voidable Acts – Challenge to same?
The petitioner Senior Lecturer (Temp) in the Department of Agricultural Biologyapplied for the post of Senior Lecturer Grade II, the selection committeerecommended the appointment. There were protests that the petitioner did notpossess the necessary educational qualifications. The 2nd respondent ViceChancellor sought a clarification from the Vice Chancellor of the Open Universityfrom where the petitioner obtained his first degree. He was informed that, thepetitioner's degree program was a 3 years general degree and that the standardof the petitioner's degree was that of the "2nd" class lower division". The 1strespondent decided not to approve the recommendation made by the SelectionCommittee. The petitioner appealed to the University Service Appeal Board(USAB). The USAB directed the 1st respondent to appoint the petitioner. Thepetitioner complained that he was not appointed.
Held:
(1) It is apparent that, the petitioner does not satisfy the qualifi-cations necessary for the appointment of ‘Senior Lecturer Grade IT.He has only reached the standard requirement for a 2nd class lower division.
Per Sripavan, J.
“It is open in these proceedings to impugn the decision of the Appeals Board asbeing unlawful or a void decision. The Court cannot issue a writ of mandamuscompelling the 1 st respondent to comply with an unlawful decision."
220Sri Lanka Law Reports[2008) 2 Sri L.R
(2) As a general rule, the Court will allow the issue of invalidity to be raised in anyproceedings where it is relevant. Void acts and decisions are indeed usuallydestitute of legal effect, they can be ignored with impunity, the validity can beattacked if necessary in collateral proceedings, they confer no legal rights onanybody. No legally recognized rights found on the assumption of its validityshould accrue to any person even before the act is declared to be invalid orset aside in a Court of law.
AN APPLICATION for a writ of mandamus.
Case referred to:
Rajakulendran v Wijesundera 1 Srikantha Law Reports 164.
K.G. Jinasena for petitioner.
Ms. M.N.B. Fernando DSG with Deepthi Tilakawardane SC for 1st and 2ndrespondents.
J.C. Boange for 21st, 22nd and 23rd respondents.
September 27, 2007SRIPAVAN, J. (P/CA)
The 1st respondent University by a notice marked P7 invitedapplications, inter alia, for the post of "Lecturer (Probationary)/SeniorLecturer (Grade ll/Grade I)" in the Department of Agricultural Biologyof the Faculty of Agriculture. The petitioner, pursuant to the said noticeforwarded his application for the post of "Senior Lecturer". After aninterview, the Selection Committee recommended the appointment ofthe petitioner for the post of "Senior Lecturer-Grade II". It was not indispute that there were protests by a group of former students of the1st respondent University not to appoint the petitioner on the basisthat the petitioner did not possess the necessary educationalqualifications for the appointment of "Senior Lecturer-Grade II". Infact, the 2nd respondent along with his objections furnished a copy ofthe letter marked 2R6 sent to him by the Alumni Association of theFaculty of Agriculture of the University of Peradeniya, seriouslyobjecting to the petitioner's appointment. The 2nd respondentthereafter sought a clarification from the Vice Chancellor of the OpenUniversity of Sri Lanka from where the petitioner obtained his firstdegree. The reply received from the Vice Chancellor, Open Universityof Sri Lanka explains that the petitioner's Degree Programme was athree years general degree and that the standard of the petitioner'sdegree was that of a "2nd Class Lower Division". The verification of
Bamunuarachchige v University of Peradeniya and others
SC(Sripavan. J. (P/CA))^221
the petitioner's results was brought to the notice of the UniversityCouncil of the 1st respondent which decided not to approve therecommendation made by the "Selection Committee" but to re-advertise the said post. The petitioner thereafter preferred an appealto the University Services Appeals Board against the decision takenby the University Council. The Appeals Board by its order dated
directed the 1st respondent University to appoint thepetitioner to the Post of "Senior Lecturer-Grade II". The complaint ofthe petitioner is that the 1st respondent University has failed toimplement the order made by the Appeals Board, todate. Thepetitioner therefore seeks a writ of certiorari to quash the decisiontaken by the University Council not to appoint the petitioner to the postof "Senior Lecturer – Grade II" and a writ of mandamus directing the1st respondent University to implement the decision of the AppealsBoard dated 29.03.2005.
It is common ground that the petitioner was appointed as an"Assistant Lecturer (Temporary)" in the Department of AgriculturalBiology with effect from 07.01.2004; the said appointment wasupgraded to the post of "Senior Lecturer (Temporary)" with effect from
and the petitioner continued in the same capacity until
The Scheme of Recruitment applicable to the post of"Senior Lecturer – Grade II" is as follows:
the academic qualifications required for Lecturer (Probationary)[Non-Medical/Dental]; and
A Masters Degree in the relevant field obtained after a full timecourse of study of at least 2 academic years (or an equivalentpart time course of study) with a research component by way ofthesis/dissertation or a Doctoral Degree.
Therefore, it becomes necessary to consider whether thepetitioner possesses the academic qualifications required for the postof "Lecturer (Probationary)". It was not in dispute that one of theacademic qualifications required for the post of "Lecturer(Probationary)" and heavily relied on by both Counsel for the purposeof this application is as follows:
a) A Degree with specialization in the relevant subject withoutHonors or any other Degree with at least 2nd Class Honours;and
222Sri Lanka Law Reports[2008] 2 Sri L.R
b) A Postgraduate Degree of at least 2 academic years duration inthe relevant subject with a research component by way ofthesis/dissertation. (Emphasis added).
Learned Deputy Solicitor-General argued that since the vacancieswere in the Department of Agricultural Biology, the petitioner mustpossess either a Degree with specialization in the relevant subject,namely, "Agricultural Biology" or any other Degree with at least a 2ndClass Honors. Both Counsel agreed that the petitioner did notspecialise in "Agricultural Biology" but possess a general Degree ofthree years duration. The Counsel for the petitioner however failed toestablish that the petitioner’s Degree was at least with a 2nd ClassHonors. The document marked 2R1 sent by the Vice Chancellor of theOpen University of Sri Lanka shows that the petitioner has only reachedthe standard required for a 2nd Class Lower Division. A carefulconsideration of the petitioner’s application marked 2R3 indicates thatthe petitioner obtained his Postgraduate qualifications in "Micro Biology"and not in the relevant subject, namely, "Agricultural Biology". In view ofthe foregoing, I cannot hold that the petitioner satisfies the qualificationsnecessary for the appointment of "Senior Lecturer-Grade 11".
Learned Counsel for the petitioner strenuously contended that thedecision made by the University Services Appeals Board was final andbinding on the respondents. Learned Deputy Solicitor-General on theother hand relied on the case of Rajakulendran v Wijesunderak') andsubmitted that the University Services Appeals Board has failed tomake a valid decision within the meaning of Section 87 of theUniversity's Act and that the purported decision of the Appeals Boardwas void in law. As a general rule, the Court will allow the issue ofinvalidity to be raised in any proceedings where it is relevant. Void Actsand decisions are indeed usually destitute of legal effect; they can beignored with impunity; their validity can be attacked, if necessary, incollateral proceedings; they confer no legal rights on anybody. Nolegally recognized rights found on the assumption of its validity shouldaccrue to any person even before the act is declared to be invalid or setaside in a Court of Law.
Accordingly, I hold that it is open to the learned Deputy Solicitor-General, in these proceedings to impugn the decision of the AppealsBoard as being an unlawful or a void decision. The Court cannot issuea writ of mandamus compelling the 1st respondent to comply with an
SCMunasinghe v Vandergert223
unlawful decision. The petitioner's application is therefore dismissed inall the circumstances without costs.
ROHINI PERERA, J. – I agree.
Application dismissed