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DR. GAMINIGOONETILLEKE AND OTHERSVS.THE UNIVERSITY OF COLOMBO AND OTHERSCOURT OF APPEAL.
SRISKANDARAJAH. J.
CA 1262/2004,
DECEMBER 9. 2004.
Writ of certiorari – To quash selection to the post of Professor of Surgery-Should all the members of the University Council be made respondents ? -Isit fatal ?
The petitioner sought to quash the selection of the 11th respondent to thepost of Professor of Surgery.
The respondents raised a preliminary objection that the petitioners havefailed to make all the members of the University Council as respondents.
The position of the petitioner was that as he had’sought to quash theselection of the 11 th respondent, all the members of the Selection Committeewere made parties, and it was not necessary to make all the members of theUniversity Council as respondents.
HELD:
A mere selection will not always result in an appointment. In thisinstance the University Council has appointed the 11th respondenton the recommendation of the Selection Committee. 2
2.All the members of the University Council are necessary parties-failure to add them is a fatal irregularity.
Application for writ of certiorari on a preliminary objection.
Case referred to:
1. Karunaratne vs. Commissioner of Co-operative Development 79(2)NLR 193.
Elmo Perera for petitioners.
H. L. de Silva, PC, with Gomin Dayasiri and Priyanthi Guneratne for 4th-11 threpondents.
Chandana Prematilleka for 12th respondent.
Cur.adv.vult
Dr. Gamini GoonetiHeke and Others vs.
The University of Colombo and Others (Sriskandarajah, J.)
351
CA
June 06th 2005,
S. SRISKANDARAJAH, J.The Petitioner in this application has sought a writ of certiorari to quashthe selection of the 11 th Respondent to the post of Professor of Surgeryand/or any appointment purported to have been made in terms of suchselection. Even though the Petitioner has sought a writ of prohibition,preventing the Respondents from making any appointment to the post ofProfessor of Surgery the 11th Respondent was appointed to the post ofProfessor of Surgery of the Unviersity of Colombo on the 12th of May,2004 before this application was filled. Hence, the Court in this applicationcould only consider the issue of a writ of certiorari to quash the selectionand the appointment of the 11th Respondent to the post of Professor ofSurgery.
The 1 st to the 11 th Respondent’s have raised a preliminary objection tothis application namely : that the Petitioners have failed to make all themembers of the University Council as respondents to this application. TheUniversity Council is the Governing Authority and Appointing Authorityand hence its members are necessary parties to this application. Theappointment of Professor of Surgery of the University of Colombo, which isimpugned in this application, was made by the University Council on the12th May, 2004 on the recommendation of the Selection Committee. TheUniversity Council alone is statutorily empowered to make such decisionas the governing authority of the 1st Respondent. Therefore the saidRespondents submitted that this application is invalid and not maintainablein law.
The Counsel for the 1st to 11th Respondents submitted that in terms ofSection 45 of the Unviersities Act, No. 16 of 1978, it is the Council of theUnversity which is empowered to appoint persons and to suspend, dismissor otherwise punish persons in the employment of the university. In thisinstant case the appointment of the 11th Respondent was made by theUniversity Council itself and what is sought to be challenged by thisapplication is the appointment of the 11 th Respondent although it is theSelection Committee that selects a candidate and makes arecommendation to the Council the actual act of appointment is carriedout by the University Council sitting together and taking a decision thereon.In this case, the Council at its 350th meeting held on 12.05.2004 considered
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the recommendation of the Selection Committee and unanimously decidedto appoint the 11th Respondent as Professor of Surgery 2R1. The 11thRespondent’s legal status and rights as Professor of Surgery now flowsfrom the decision made by the University Council which accepts therecommendation of the Selection Committee which decision also needsto be set aside if the 11th Respondents legal rights and status as aProfessor are to be affected. The said Respondents further submitted thateven if the recommendation of the Selection Committee is declared to beof no legal effect or if it is to have any legal consequences, the appointmentof the 11 th Respondent as Professor has to be quashed, which cannot bedone in the absence of all the members of the Council who are not beforecourt. The counsel for the Respondent submitted that all members of theCouncil must be given an opportunity in these proceedings to justify thevalidity arid legality of the decision that they made to appoint the 11thRespondent.
The 12th Respondent associated himself with the preliminary objectionraised by the 1 st to the 11 th Respondents and further submitted that thePetitioner made no attempt whatsoever at any stage, not even after thatappointment of the 11 th Respondent was made known to Court to add themembers of the University Council as Respondents though their was ampletime to do so before the 2nd Respondent filed his objection despite Rule 3(8) of the Court of Appeal (Appellate Procedure) Rules 1990 authorizingsuch course of action.
The Petitioners in reply to the preliminary objection submitted that theCouncil cannot, even by a unanimous decision validate a nullity by purportingto approve the nullity and purporting to act in terms of the said nullity. Assuch the purported approval of the said selection by the Council on 12thMay, 2004 2R1 and the purported letter of appointment 2R2 are ab initiovoid and not merely voidable. He further submitted that what is sought tobe quashed in prayer (b) is the purported selection of the 11 th Respondentby the Selection Committee. All the members of the said SelectionCommittee have been made Respondents. Therefore he submitted thatthe preliminary objection be rejected.
The Petitioners in this application has sought a writ of certiorari toquash the selection of the 11 th Respondent to the post of Professor ofSurgery and/or appointment purported to have been made in terms ofsuch selection. The Petitioner’s position that he only challenged the
CA
Dr. Gamini Goonetilleke and Others vs. ,
The University of Colombo and Others (Sriskandarajah, J.)
353
selection of the 11th Respondent which is not borne out by his prayer.Even if the petitioner has made an application to quash the selectionalone in the absence of an appointment that application would have beenrejected on the basis that the application is premature. A mere selectionwill not always result in an appointment. A selection could be challengedonly if that selection was relied upon by an authority or acted upon on thatselection or recommendation. In that event, the challenge is for appointinga person who is not legally entitled for that appointment as his selectionwas wrong or illegal. In this instant case, the University Council hasappointed the 11th Respondent on the recommendation of the SelectionCommittee. In Karunaratne v Commissioner of Coroperative DevelopmentIsmail, J citing several authorities held ; “In view of these authorities itappears to me that the Deputy Commissioner of Co-operative DevelopmentJ. D. J. Vitharana who made the award is a necessary party to theseproceedings and the failure to add him as a party respondent is a fatalirregularity. It is therefore not necessary to deal with the other mattersreferred to in the petition.”
In these circumstances the Court holds that the members of theUniversity Council are necessary parties to this application and as thePetitioners had failed to make them as Respondents is a fatal irregularityand hence Court upholds the preliminary objection of the 1 st to 11 th and12th Respondents and dismisses this appication without costs.
Application dismissed.
