DR. KARUNANANDA vs. OPEN UNIVERSITY OF SRI LANKA AND OTHERS

029-SLLR-SLLR-2006-V-3-DR.-KARUNANANDA-vs.-OPEN-UNIVERSITY-OF-SRI-LANKA-AND-OTHERS.pdf


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DR. KARUNANADAVS.OPEN UNIVERSITY OF SRI LANKA AND OTHERS225
SUPREME COURT.
SHIRANIBANDARANAYAKE, J.
DISSANAYAKE, J.
FERNANDO, J.
SC FR 450/2003SEPTEMBER 2, 2005.
FEBRUARY 27, 2006.
APRIL 24, 2006.
MAY 31,2006.
Fundamental Rights-Article 12(1)-Constitutlon – Article 126- Nonappointment as a Professor – Academic decisions – Could these decisionsbe challenged ? – Can Universities be considered pari – passu with otherState institutions? – Difference between academic issues and otherdisputes relating to academic matters – Distinction ?
The petitioner, a senior lecturer attached to the Open Universitycomplained against his non-appointment as a Professor/AssistantProfessor in Computer science, stating that, the said non-appointment isunreasonable, mala-fide, discriminatory and arbitrary and is in violation ofArticle 12 (1).
HELD:
The Universities of Sri Lanka are creatures of statutes as theyhave been established under and in terms of the Universities Act.
HELD FURTHER:
This Court may not interfere with purely an academic issue, theCourt would not hesitate to intervene in any other dispute relatingto academic matters if it infringes rights guaranteed in terms ofthe provisions stipulated in the Constitution more particularly the
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fundamental rights jurisdiction and its exercise is determined interms of Article 126(1).
Per Shirani Bandaranayake, J.
"I am not in agreement with the view chat academic decisions arebeyond challenge, there is no necessity for the Courts tounnecessarily intervene in matters 'purely of academic nature'since such issues are best dealt with by academics who are fullyequipped to consider the questions in hand; however if there areallegations against decisions of academic establishments thatfall under the category stipulated in terms of Article 126, there areno provisions to restrain this Court from examining an allegedviolation relating to an infringement or imminent infringementirrespective of the fact that the said violation is in relation to adecision of an academic establishment".
The case of the petitioner refers to the failure of the respondentsto appoint him as Professor/Assistant Professor where he hadthe required marks-the petitioner has not questioned thecorrectness of the assessment of the external experts or theexamination panel, the question at issue does not revolve aroundmatters relating to allocation of marks of examinations,methodology of teaching or matters regarding the curriculum,which are purely of an academic nature.
Held further:
The procedure followed in the evaluation process of thepetitioner's application for the promotion had been dealt withunfairly without adhering to procedural fairness. Proceduralsafeguards should be the cornerstones of individual liberty andtheir right to equality.
AN APPLICATION underArt. 126(1) of the Constitution.
Cases referred to :
Regina vs. Higher Education Finding Council Ex-parte Instituteof Dental Surgery – 1944-1WLR 242
Phillips vs. Bury – 1558-1774-All ER 53
St. Johns College, Cambridge vs. Todington- (1751 )-1 Bur 200
Rv. Bishop of Ely – (1794)- STR 477
Ex-parte Thomas Lamprey – (1737) West T. Hard 209
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R vs. Hertford College, Oxford – (1878) 3 QBD 693
Attorney General vs. Stephens – (1737) 1 AIR 358
In Re Dean of York – (1841) 2 QB 1
R vs. The Chancellor Masters and Scolars of the University ofCambridge (Dr. Bentleys case) – (1723) 1 Str. 557
Clark vs. University of Lincolnshire – (2000) 2 Al ER 752
Thorne vs. University of London – (1864) – 33 LJ ch 625
Thomson vs. University of London – (1996) -1 All ER 338
Patel vs. University of Bradford Senate and others 0-(1979) 2 AllEr 582
Hines vs. Birkbeck College – 1985 – 3 All ER 156
Manohara vs. President, Peradeniya Campus University of SriLanka – BALR (1983) – Vol. Part II – 45
W. K. C. Perera vs. Prof. Daya Edirisinghe – 1995 – 1 Sri LR 148
Culasubadhra vs. University of Colombo – 1985 – 1 Sri LR 244
Sannasgala vs. University of Kelaniya – 1991 – 2 Sri LR 193
Mcnabb vs. United States – 1943 – 318 US 332
Shaughnessy vs. United States – 1953 -345 – US 332
J, C. Weliamuna with Shantha Jayawardane for petitioner.
Harsha Fernando SSC for 1st -7th and 11th respondents.
August 3, 2006.
SHIRANI BANDARANAYAKE, J.The petitioner, who is a Senior Lecturer attached to the OpenUniversity of Sri Lanka, has complained against his non-appointmentas a professor/Associate Professor in Computer Science of the Facultyof Natural Science of the 1st respondent University stating that thesaid non-appointment is unreasonable, mala-fide, discriminatory andarbitrary and in violation of his fundamental rights guaranteed in termsof Article 12(1) of the Constitution, for which this Court had grantedleave to proceed.
The facts of the petitioner's case are briefly as follows :
The petitioner is a Bachelor of Science (Honours) Graduate inMathematics of the University of Colombo, who obtained his degree in1985 (P1 A). He had obtained the Degree of Master of Philosophy inComputer Science from the Open University of Sri Lanka in 1993 (P1B)
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and the Degree of Doctor of Philosophy in Computer Science – ArtificialIntelligence from the University of Keele, United Kingdom in 1995(P1C). Since his graduation in 1985, he had served in the capacitiesof Lecturer, Senior Lecturer and the Head of the Department ofMathematics and Computer Science at the 1 st respondent University.The petitioner has earned out extensive research in the area of ComputerScience and Artificial Intelligence, had published around 80 researchpapers in international and national journals and had made presentationsat International Conferences. He has also published around 10 booksin Sinhala on Computer Science for the use of schoolchildren, general. public and University Students. The petitioner had been instrumentalin introducing Computer Science as a subject for the Degree of Bachelorof Science in the 1st respondent University. He had developed theentire curriculum and had taught the subject at undergraduate andpost graduate levels.
The petitioner had submitted his application for the post of Professor/Associate Professor in Computer Science of the 1st respondentUniversity in terms of University Grants Commission Circular No. 723dated 12.12.1997 (hereinafter referred to as the Circular). The Senateof the 1 st respondent University in terms of the Circular, had appointedtwo external Experts and the Panel to evaluate the said application.Thereafter the petitioner had become aware that the two ExternalExperts and the panel of Members had submitted their evaluationreports in respect of the petitioner's application. In July 2002, the 1strespondent University had convened the Selection Committee toconsider the petitioner's application.
By letter dated 18.07.2002, the petitioner was informed by the SeniorAssistant Registrar (establishment) of the 1 st respondent Universitythat the Selection Committee had not recommended the petitioner forpromotion either as Professor or Associate Professor on the basisthat the petitioner had failed to obtain the required minimum marks inaccordance with the marking scheme (P6).
The petitioner stated that although it was the practice of all theUniversities in Sri Lanka to call the applicant before the SelectionCommittee and inform the results, the petitioner was not called beforethe Selection Committee for the said purpose. Nevertheless, the 3rd
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respondent, on a request made by the Selection Committee, hadinformed the petitioner that he had not obtained the minimum marksfor ‘research and creative work', since one of the external experts hadawarded him less than 25 marks. The 3rd respondent had also informedhim that as he had failed to obtain the minimum marks for ‘teachingand academic development’ the application of the petitioner was notreferred to a 'third external expert’.
As the petitioner had firmly believed that in terms of the markingscheme he was entitled to more than 20 marks for ‘teaching andacademic development’, he was of the view that a grave injustice hadbeen caused to him on the evaluation of his application by the Panel,which consisted of internal academics of the 1st respondent University.Therefore by his letter dated 09.08.2002, he had made a request tothe 2nd respondent to re-consider his application (P7). A GrievanceCommittee was appointed as a result of his letter and such Committeehad recommended, inter-alia that the application of the petitioner bere-considered. Accordingly, a ‘new panel' and a third External Expertwere appointed by the Senate to evaluate the petitioner's application.
Subsequently’ the Selection Committee was re-convenedon 16.07.2003 and by letter dated 07.08.2003 the petitioner hadinquired from the 1st respondent as to why his application has notbeen processed for over 2 1/2 years (P9). On 08.08.2003 the 2ndrespondent had informed the petitioner that his application is still beingprocessed. (P10).
The petitioner alleged that by the failure of the 1st respondentUniversity to appoint him as an Associate Professor or a Professorwhen he had obtained the necessary marks, the respondents haveinfringed his fundamental rights guaranteed in terms of Article 12(1) ofthe Constitution.
At the hearing learned Senior State Counsel, by way of a preliminaryobjection raised on behalf of the respondents, contended that theUniversities cannot be considered pari passu with other Stateinstitutions, which are subjected to judicial review under Articles 126and 140 of the Constitution. His contention was that in a classicalsense the University is or ought to be a ‘community of scholars'
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irrespective of the fact that the organizational aspects of the Universitymay have the trappings of an institution. The post of Professor is oneof the most senior academic positions and therefore the process forthe conferment of such position is also highly specialized and uniquethat such would be executed only by persons, who are qualified andplaced in equal or higher standing.
Learned Senior State Counsel further contended that the scheme ofevaluation which stipulated the criteria for the promotion to the postsof Professor or Associate Professor would take into account the specificattributes a Professor should possess which would include researchand creative work, dissemination of knowledge, contribution to teachingand academic development to the University and national development.Accordingly, the contention of the learned Senior State Counsel isthat such attributes could be assessed only by an ‘academic mind’and that such evaluations may not be on par with the reasoning of ajudicial mind and therefore such assessments could only be carriedout by similarly qualified peers from the academic community. Hefurther submitted that the petitioner's intention is to invite this Court to‘step into the shoes' of the petitioner's academic peers and decidewhether the evaluation carried out by them is right or wrong. Thecontention of the learned Senior State Counsel is that this Court shouldnot perform such function in the absence of allegations of seriousmala-fides or grave procedural impropriety.
In support of his contention learned Senior State Counsel referredto Wade and Forsyth (Administrative Law, 9th Edition, Oxford UniversityPress, 637), where it was stated that-
"The Courts will, in any case, be reluctant to enter into'issues of academic or pastoral judgment', which theuniversity was equipped to consider in breadth and in depthbut on which any judgment of the Courts would be jejuneand inappropriate".
He also referred to the decision in Regina vs. Higher EducationFunding Council Ex-parte Institute of Dental Surgery where it wasstated that-
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"we would hold that where what is sought to
be impugned is on the evidence no more that an informedexercise of academic judgment, fairness alone will notrequire reasons to be given."
Learned Counsel for the petitioner's submissions on the objectionstaken by the respondents were two fold : firstly it was submitted thatthe authorities relied on by the respondents do not support theircontention and that it is not correct to state that the academic decisionsare beyond challenge. In support of his contention learned Counsel forthe petitioner referred to the decision in R vs. Higher Education FundingCouncil, Ex-parte Institute of Dental Surgery, (supra) a decision whichthe learned Senior State Counsel had relied on, where Sedley, J. hadstated that—
"This is not to say for a moment that academic decisionsare beyond challenge."
Secondly, he took up the position that the respondents have basedtheir submissions on the misconceived premises that the petitioner ischallenging an academic decision of the respondents whereas thecontention of the petitioner is that the failure to appoint him as aProfessor or an Associate Professor when he had obtained the requiredmarks is unreasonable and therefore violative of Article 12(1) of theConstitution.
Regarding the second matter, learned Counsel for the petitionersubmitted that the petitioner is not challenging the assessment by theExternal Experts or the panel. The question is issue according to thelearned Counsel for the petitioner, is the appointment of a professor oran Associate Professor and for this purpose the Circular No. 723 ofthe University Grants Commission sets out the entire procedure andthe fact that an application for promotion is evaluated by an academicdoes not make the assessment/evaluation an academic issue.
Having set down the submissions by both learned Counsel for thepetitioner and the respondents, let me now turn to consider the objectionraised by the learned Senior State Counsel.
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The question that is at issue on the basis of the objection raised bythe learned Senior State Counsel for the respondents is that whetheran academic issue could be – subjected to judicial review in terms ofArticle T26 of the Constitution.
The petitioner’s complaint, as stated earlier, clearly refers to thefailure of the 1 st respondent University to appoint him to the post ofProfessor or Associate Professor and that it amounts to an infringementor an imminent infringement of the petitioner's fundamental rights.
There is another matter that I wish to state in this regard. LearnedSenior State Counsel referred to several English authorities, whichwere cited earlier, in support of his contention that Courts would bereluctant to enter into issues of academic or pastoral judgments of theUniversity.
It is to be borne in mind that in England, since the ancient times,where Universities and Colleges’ were established for ‘the promotionof learning', provision was made to appoint a 'visitor' for the purpose ofadministering justice regarding internal matters. The powers and dutiesof such a visitor was clearly described in Philips vs. Bupym where SirJon Holt, C. J., stated that,
"The office of visitor by the common law is to judgeaccording to the statutes of the college^ and to expel anddeprive upon just occasions, and to hear appeals of course.
And from him, and him only, the party grieved ought to haveredress, and in him the founder hath reposed so entireconfidence that he will administer justice impartially, thathis determinations a^e final and examinable in no other Courtwhatsoever."
Since that decision, the Courts have repeatedly taken the view that,if a visitor is appointed and if he had been given the jurisdiction to hearand determine the complaints of the members of the college, no actioncould be instituted in the courts of law. St. John's College, Cambridgevs. Todington(3), R vs. Bishop of E/y<4), Ex parte Thomas Lamprey (S> Rvs. Hertford College, Oxford(6), Attorney General vs. Stephens(?).
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However, in later decisions, the scope of the visitatorial jurisdictionwas given careful consideration and it was held that the visitor cannotclaim to be entirely free from any kind of control by the common lawCourts and in the event of the visitor exceeding his jurisdiction that theCourts could declare his acts null and void Dean of Yorks casew.
It is also necessary to note that the mere existence of a visitor wasnot sufficient to exclude the jurisdiction of the Court, as the fact thatthere is a visitor should also be brought to the notice of the Court. Forinstance in R vs. The Chancellor, Masters and Scholars of the Universityof Cambridge <9) commonly known as Dr. Bentley's case, where adoctor had refused to submit to the jurisdiction of the Vice-Chancellorof the University in an action against him when he was deprived of hisacademic qualifications. Writ of mandamus was granted to restorehim of his degrees, chiefly due to the reason that the existence of thevisitor was not raised as a defence. Considering the actions taken bythe University, Pratt, C. J. stated thus.
" I think the return has fully justified us in sending the
mandamusas it is not pretended there is any
visitor, or any other jurisdiction, to examine into thereasonableness of the deprivation, but that of this Court."
It is therefore evident that the Universities are amenable to thejurisdiction of the Court irrespective of the fact, whether the questionin issue is academic or otherwise and the only exception, where thejurisdiction of the Court would be excluded was only when there was avisitor. There again the visitor's mere presence alone was not sufficientfor the purpose of excluding the jurisdiction of the Court, and it was anessential requirement that in such instances the fact that there beinga visitor must be brought to the notice of the Court.
There is one other factor which is of vital importance regarding thequestion of jurisdiction of Court vis-a-vis the presence of a visitor in aUniversity. Most of the older English Universities had provision for acharter and thereby for a visitor. The modern Universities are mostlycreatures of statute and therefore would not have provision for a visitor.This position was confirmed in Clark vs. University of Lincolshirem.where it was held by Sedley L. J. that,
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"The University of Lincolshire and Humberside is one ofthe new Universities brought into being by the EducationReform Act, 1988. Section 121 gave the status of bodiescorporate to advanced further education Institutions meetingstatutory enrolment criteria of which ULH (as I will call it)was one. By section 123 they are called higher educationcorporations. The Further and Higher Education Act, 1992gave all such institutions the full status of a University andmade provision for their internal government, but withoutaltering their legal character. Such an institution, therefore,unlike the majority of the older English and WelshUniversities, have no charter and no provision for a visitor, ifit had, it is common ground that the common dispute would
lie within the visitor's exclusive jurisdictionBut ULH is
simply a statutory corporation with the ordinary attributesof legal personality and a capacity to enter into contractswithin its powers.”
Having said that let me also refer to Sedley, J.'s views expressed inClark vs. University of Lincolnshire (supra) regarding the jurisdictionof Courts in a situation, where there is no recourse to a visitor. In sucha situation, according to Sedley, J., the issues would not be susceptibleto adjudication as contractual issues. However, it is to be borne inmind, that Sedley, L. J., had made this observation in the light ofdecisions such as Thomson vs. University of London^, Thorne vs.University of London™ and Patel vs. University of Bradford Senateand another<13). In Thomsons's case (Supra) the question at issue wasof the award of a gold medal, where as Thorne's and Patel'scases(Supra) were regarding the plaintiff's academic competence.Accordingly, Clark's case was distinguished from the aforementionedcases on the ground that it was a case which did not belong to theearlier group. Referring to such distinction Sedley, L. J. stated that,
"It is on this ground, rather than on the ground of non-justiciability of the entire relationship between student anduniversity, that the judge was in my view right to strike outthe case as then pleaded. The allegations now pleaded byway of amendment are, however, not in this class. Whilecapable, like most contractual disputes, of domestic
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resolution, they are allegations of breaches ofcontractual rules on which, in the absence of a visitor,the Courts are well able to adjudicate (emphasisadded)".
Thus it is quite clear that, in situations where there is no visitatorialjurisdiction in process, the academic matters would be divided intotwo categories, which would include issues capable and not capableof being decided by Courts. As stated by Hoffman, J. in Hines vs.Brikbeck College,14), the Courts have no difficulty in deciding whetherprinciples of natural justice have been observed or rules of procedureincorporated into contracts of employment correctly applied.Allegations of breach of contractual rules also would therefore fall intothe category of cases that would be able to be adjudicated by Courts.
The Universities of Sri Lanka are creatures of statutes as they havebeen established underand in terms of Universities Act, No.16of 1978as amended. The Act does not provide for a visitor as in the case ofmajority of the English and Welsh Universities. Long line of cases,filed against the decisions of Sri Lankan Universities indicate that therehad been no objections taken by the University administration that theCourts cannot intervene in reviewing their decisions. Manohara vs.President, Peradeniya Campus University of Sri Lanka('5), W. K. C.Perera vs. Prof. Daya Edirisinghe{'6), 148 Cula Subadhra vs. Universityof Colombo(17), Sannasgala vs. University ofKelaniyam. In fact in W.
K.C. Perera vs. Prof. Daya Edirisinghe(Supra), learned Senior StateCounsel had contended that this Court should not compel the awardof a degree by way of granting the writ of mandamus, but only torequest the relevant authorities to consider the question of awardingthe degree in question. It was also contended that there was no publicduty to award a degree and that no one had a right to the award of adegree. Further it was submitted that, any institution awarding degreeshad a residual discretion to withhold a degree, even if the candidatehad satisfied the relevant regulations. Considering the submissions ofthe Senior State Counsel, Mark Fernando, J. was of the view that,
"Article 12 ensures equality and equal treatment
even when a right is not granted by common law, statute or
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regulation, and this is confirmed by the provisions of Article3 and 4(d). Thus, whether the Rules and ExaminationCriteria, read with Article 12 confer a right on a duly qualifiedcandidate to the award of the Degree and a duty on theUniversity to award such Degree without discrimination, andeven when the University has reserved some discretion, theexercise of that discretion would also be subject to Article12, as well as the general principles governing the exerciseof such discretion."
It is to be borne in mind that in W. K. C. Perera's case (supra) thequestion at issue was whether the appellant was entitled to the awardof the degree which was clearly an academic issue, which this Courthad decided in favour of the appellant.
Therefore, although this Court may not interfere with purely anacademic issue the Court would not hesitate to intervene in any otherdispute relating to academic matters if it infringes the rights guaranteedin terms of the provisions stipulated in the Constitution. More importantlythe fundamental rights jurisdiction and its exercise is determined interms of Article 126(1) of the Constitution. In terms of that Article theSupreme Court shall have sole and exclusive jurisdiction to hear anddetermine any question relating to the infringement or imminentinfringement by executive or administrative action of any fundamentalright or language right declared and recognized under Chapter III orChapter IV of the Constitution. Article 12(1), which is contained inChapter III of the Constitution clearly stipulates that all persons areequal before the law and are entitled to the equal protection of the law.In terms of the aforementioned constitutional provisions, the Court wouldhave to inquire into, for the purpose of ascertaining whether there is aninfringement or an imminent infringement in connection with the equalprotection guaranteed to the petitioner/s in terms of Article 12(1) ofthe Constitution. If there is prima facie such an infringement, then it isthe duty of this Court to inquire into the matter before Court.
Therefore, although there may be cautionary remarks indicatingreluctance to enter into academic judgment, I am not in agreementwith the view that academic decisions are beyond challenge. There isno necessity for the Courts to unnecessarily intervene in matters“purely of academic nature,” since such issues would be best dealt
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with by academics, who are ‘fully equipped' to consider the questionin hand. However, if there are allegations against decisions of academicestablishments that fall under the category stipulated in terms of Article126 of the Constitution, there are no provisions to restrain this Courtfrom examining an alleged violation relating to an infringement orimminent infringement irrespective of the fact that the said violation isin relation to a decision of an academic establishment. In fact in R vs.Higher Education Funding Council ex-parte Institute of Dental Surgery(Supra) Sedley, J. referring to a question which he termed as ‘anacademic judgment’ stated thus :
"The question 'why' in isolation as it can now be seen tobe, is a question of academic judgment. We would holdthat where what is sought to be impugned is on the evidenceno more than an informed exercise of academic judgment,fairness alone will not require reasons to be given. This isnot to say for a moment that academic decisions are beyondchallenge. A mark, for example, awarded at anexaminers' meeting where irrelevant and damagingpersonal factors have been allowed to enter into theevaluation of a candidate's written paper is somethingmore that an informed exercise of academic judgment(emphasis added)’’.
The case of the petitioner refers to the failure of the respondents toappoint the petitioner as a Professor or an Associate Professor, wherehe had the required marks and therefore his allegation is that suchnon-appointment is unreasonable and arbitrary and therefore is violativeof his fundamental rights guaranteed in terms of Article 12(1) of theConstitution. The petitioner has not questioned the correctness of theassessment of the external experts or the examination panel. Thequestion at issue does not revolve around matters relating to allocationof marks at examinations, methodology of teaching or matters regardingthe curriculum, which are purely of an academic nature. Thereforeeven if I am to accept the position that decisions, which are purelyacademic by nature cannot be questioned by this Court, I am unableto agree with the contention of the learned Senior State Counsel thatthis is a matter, which cannot be looked into by this Court.
For the reasons aforementioned, the preliminary objection raisedby the learned Senior State Counsel is overruled.
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Having stated that let me now consider the alleged infringementcomplained by the petitioner.
The contention of the learned Counsel for the petitioner is that thenon-appointment of the petitioner to the post of Professor or AssociateProfessor when he had obtained the requisite marks, is in violation ofArticle 12(1) of the Constitution.
It is common ground that the promotion to the post of Professor orAssociate Professor on merit of the 1st respondent University isgoverned by UGC Circular No. 723 dated 12.12.1997 (P3). This Circularclearly stipulates that the applications would be evaluated on the basisof the contribution to teaching and academic development, researchand creative work and dissemination of knowledge and contribution toUniversity and national development.
The minimum marks for each component of evaluation and theminimum total mark that an applicant for the promotion of AssociateProfessor or Professor of a given discipline should obtain, in order toqualify for the relevant appointment in terms of the Circular (P3) wasas follows :
Table I
The Circular refers to the method of selection process and thesaid process with regard to Associate Professor/Professors was asfollows:
Associate Associate Professor
Professor Professor (Internal) (External) 1. Contribution to Teaching andAcademic Development 20 10 20
2. Research and creative work 25 35 45
3. Dissemination of knowledgeand contribution to University and national development 10 10 15
4’ Minimum total mark 65 65 90
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“(ii) The Senate shall appoint two (2) experts in the relevantfield from outside the higher education institution concernedto evaluate the applicant's contribution to :
research and creative work
dissemination of knowledge.
The experts should not be teachers/supervisors of thecandidate at post-graduate level.
Evaluation of the contribution to:
teaching and academic development
University and national development
will be carried out by a panel appointed by the Senate whichshall consist of the following"
Vice-Chancellor/Deputy Vice-Chancellor/Dean of theFaculty concerned.
Two (2) Professors, one of whom is either from within oroutside the Institution concerned and has a knowledge ofthe discipline or a related discipline and the other fromanother Faculty of the Higher Educational (Institutionconcerned. The Head of the Department concerned shallreport on the attendance of the candidates aj' meetings ofthe Faculty Board and Senate (where relevant) and otherstatutory bodies and he may be called upon to serve as anobserver in the panel.
The final selection will be made by the Selection Committeebased on the evaluation reports specified in (ii) and (iii) aboveand in conformity with the Procedure of appointment.Appointments on merit promotions are made on 'personal-to-the-holder' basis and do not necessarily reflect cadrepositions."
On the basis of the aforementioned criteria, the Senate had appointedtwo external experts and the panel, to evaluate the petitioner's
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application and in July, 2002, the 1st respondent University hadconvened the Selection Committee to consider the reports of the twoexternal experts and of the panel. Since this panel had notrecommended the petitioner his promotion as he had not obtainedrequired marks for Research and Creative work, on the basis of anapplication made by the applicant to the ’Grievance Committee' of theUniversity a second panel was appointed and the marks allocated bythe two panels as submitted by the 2nd respondent was as follows :
Table II
External External External Minimum Minimum
Expert Expert Expert Marks Marks
1 II III required required
for for
Associate Professor
Professor Research andcreative workDissemination of 9.8 34.85 71.5 25 45
knowledge andcontribution to 4.5 10.00 22.0 10 15
University andNational DevelopmentTotal marks 65 90
The marks given by the external expert III for Research and creativework and by Panel 2 for dissemination of knowledge and contributionto University and National Development are reflected in column 3 ofthe above table and it appears that the petitioner was awarded 71.5and 22 marks respectively.
Thereafter the Selection Committee was reconvened and had meton 16.07.2003 and had observed that even with the marks of the 3rdExternal Expert there was a high degree of variance. At that point,according to the 2nd respondent the Selection Committee had decidedto refer all the material pertaining to the application made by thepetitioner to the original evaluation of Panel 1 and to the 3rd ExternalExpert requesting them to reconsider the marks they had awarded tothe petitioner. Out of the three, two members including the 3rd External
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Expert had informed that they did not see any basis that warrantedchanges to the original marks they had awarded, whereas one persondid not respond. On the basis of the aforesaid response, the SelectionCommittee had considered the circumstances and was of the opinionthat the petitioner cannot be recommended for the post of Professor oran Associate Professor as he had not obtained the necessary pointsor marks according to the UGC Circular No. 723. As it appears, thisdecision had been purely on the basis of the original marks that wereawarded to the petitioner.
Admittedly the petitioner was not recommended for promotion eitherto the post of Associate Professor or to the Post of Professor as the1 st respondent University had taken the view that he had not satisfiedthe minimum standard required for Research and Creative work. Byher letter dated 02.12.2003, the 2nd respondent informed the petitionerof her decision which stated as follows :
"Application for the Post of Professor/Associate ProfessorThis has reference to your letter dated 11th November,
2003 on the above matter.
Since you have not satisfied the minimum standardrequired for Research and Creative work the SelectionCommittee did not recommend the promotion either to thePost of Associate Professor or to the Post of Professor(P14).“
It is not disputed that on the basis of the appeal submitted by thePetitioner, the 1 st respondent University had decided to appoint a 3rdExternal Expert to evaluate the work carried out by the petitioner forhis promotion. In fact it had been a decision of the 1st respondentUniversity on the basis of the appeal submitted by the petitioner afterconsidering it at the Council, which is the governing authority of theUniversity that the complaint should be referred to a GrievanceCommittee. The said Grievance Committee consisted of three (3)members of the Council of whom two were UGC appointed membersand one a representative of the Committee of Vice-Chancellors andDirectors (CVCD). That Committee, after considering the grievance ofthe petitioner had made the following recommendation :
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"One of the experts appointed for evaluation had given 34points and the other had given 9.8 points.
To qualify for promotion he should obtain 25 points under
this category Since there is a high variance
recommended to obtain an evaluation report from
a 3rd expert."
The consideration given and the recommendation made by theGrievance Committee clearly indicates that, they had accepted thefact that,
there was a high variance of assessment between the 1 st andthe 2nd External Experts, and
due to the aforementioned fact that it is necessary to obtainan evaluation report from a 3rd External Expert.
However, after the appointment of the 3rd External Expert and afterobtaining the evaluation report, the decision of the Selection Committeehad been to refer the material pertaining to the petitioner to panel I andto the 3rd External Expert to re-consider the marks they had awardedto the petitioner.
A series of questions arise at this juncture. Whether the procedureadopted by the 1st respondent University is fair, reasonable andjustifiable? What was the purpose of appointing a 3rd External Expertwhen there was a high degree of variance of assessment between the1st and the 2nd External Experts, if the marks were to be ignoredthereafter? Wasn't it fair and reasonable to have considered the averageof the two positive marks, if the 3rd External Expert had awarded morethan the minimum marks? Couldn't the Selection Committee haveconsidered the average of the three sets of marks available to them?.In such circumstances, couldn't the Selection Committee haveconsidered recommending the petitioner to be promoted to the Gradeof Associate Professor of the 1 st respondent University?
Looking at Table II, referred to earlier, which stipulated the marksgiven by the three External Experts, (2R1) it is apparent that bothExternal Expert II and External Expert III had given more than theminimum marks required for the promotion to the post of AssociateProfessor. Thus it is apparent that the procedure followed in theevaluation process of the petitioner's application for the promotion ofProfessor or Associate Professor had been dealt with unfairly without
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Dr. Karunanada vs. Open University of Sri Lanka
and Others (Shirani Bandaranayake, J.)
243
adhering to procedural fairness. Procedural fairness, in my view, cannotbe regarded as a matter which is unimportant. Procedural safeguardsshould be the cornerstones of individual liberty and their right to equality.Referring to the importance of procedural fairness, Frankfurter, J. inMcNabb vs. United States(19) stated that,
"The history of liberty has largely been the history of theobservance of procedural safeguards."
A decade later considering an issue on the same lines, Jackson, J.in Shaughnessy vs. United States(20) stated that,
"Procedural fairness and regularity are of theindispensable essence of liberty. Several substantive lawscan be endured if they are fairly and impartially applied."
On a consideration of the aforementioned circumstances, it is evidentthat the 1st respondent University has acted arbitrarily, unreasonablyand contrary to the provisions stipulated in Circular P3. I thereforehold that the respondents had acted in violation of the petitioner'sfundamental right guaranteed in terms of Article 12(1) of theConstitution. The 2nd respondent and the 3rd – 10th respondents, whowere the members of the Selection Committee, are directed to take allnecessary steps within the scope of their powers, duties and functionsto re-consider the application made by the petitioner on his promotionto the post of Associate Professor/Professor in Computer Science, interms of the UGC Circular No. 723 dated 12.12.1997 (P3), and theassessments given by the three (3) External Experts, according tolaw.
I make no order as to costs.
DISSANAYAKE, J. -1 agree
FERNANDO, J. -1 agree
Application allowed.