013-SLLR-SLLR-2004-V-1-FARWIN-v.-WIJEYASIRI-COMMISSIONER-OF-EXAMINATIONS-AND-OTHERS.pdf
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Urban Development Authority v Ceylon Entertainments Limited
and Ohers (Edussuriva. J.)
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FARWINv
WIJEYASIRI, COMMISSIONER OF EXAMINATIONS ANDOTHERSSUPREME COURTFERNANDO, J.
WIGNESWARAN, J. ANDWEERASURIYA, J.
S.C. 536/2002 FR22 JULY, 2003
Fundamental Rights – GCE (Advanced Level) Examination – Loss of answerscripts of the petitioner – Departmental investigations amounting to a sham -Constitution, Article 12(1).
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The petitioner sat the GCE (Advanced Level) Examination held in April-May2002. One of the subjects she offered was Chemistry II. She alleged that twosheets from her answer script in that subject, pages 7 to 10 had been removedby tampering with the envelope containing her answer scripts. Those sheetswere received by her father with an anonymous letter. However, the thenCommissioner of Examinations (6th respondent) failed to hold a proper inquiryand thereby infringed her rights under Article 12(1) of the Constitution.
The 3rd respondent (Deputy Commissioner of Examinations) who investigat-ed the complaint failed to hold a proper inquiry. The court discovered from theofficial file and the notes of the Deputy Commissioner that there was evidenceof tampering with the scripts. However, the Deputy Commissioner falsely stat-ed that there was no indication of tampering and that the scripts containedpages 7 to-10.
Held :
Although it was doubtful on the petitioner's perfornance in all 3 subjectsshe sat for, whether she would have qualified for university entrance, thedepartmental investigations into the alleged tampering of the Chemistry IIscripts was a sham. As such the petitioner's rights under Article 12(1) had beeninfringed by officials of the Department of Examinations.
APPEAL for relief for infringement of fundamental rights.
Elmore Perera for petitioner.
M.Gopallawa, State Counsel for respondents.
Cur.adv.vult
September 12, 2003
FERNANDO, J.The petitioner was a candidate from Kalmunai for the GCE 1(Advanced Level) Examination held in April-May 2002. She sat forthe Chemistry, Physics and Combined Mathematics papers atCentre No 1545. In this application she alleges that on 10.5.2002she duly handed over her answer script for the Chemistry II paper;that her script consisted of six sheets (numbered as pages 1 to 12);that at that Centre there were in all 28 scripts, which had been putin an envelope and sealed; that before the scripts were marked, thepacket had been unlawfully opened, and that two sheets had beenremoved from her script; that in consequence she received less 10marks than she should have; that her father complained to the 6threspondent, the then Commissioner of Examinations; and that shereceived no redress, not even the benefit of a proper inquiry. In
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these circumstances, she claims that her fundamental right underArticle 12(1) had been infringed by the 1st to 3rd and 6th to 16threspondents.
The petitioner's case is that on 23.5.2002 her father hadreceived by ordinary post an anonymous letter (in Tamil) dated
enclosing two sheets, numbered as pages 7 to 10, fromher answer script. That letter (as translated by her father) stated :
Please pardon me for associating and cooperating in destroyingthe life of a student. I did not have any way there. I am sendingthis to fear of my mind. Please do not put me into trouble. Theseare works of "Big Places". Look into the other subjects Sir.
It is common ground that for each of those three papers candi-dates had to answer some questions on the question paper itself,and the other questions on separate answer sheets. At each exam-ination hall, blank answer sheets were given by invigilators, a fewat a time, after initialling and dating each sheet. The two sheets inquestion have been duly initialled and dated.
This Court called for the petitioner's answer scripts. It was foundthat her Chemistry II script included four answer sheets, numberedas pages 1 to 6 and 11 to 12. Her Physics II script had four sheets,numbered as pages 1 to 6 and 9 to 10, and that script contained acage in which the candidate had to enter the number of pages inwhich answers had been written; she had entered "10" (implyingthat there were five sheets). The first page of her CombinedMathematics II script contained instructions to candidates, and shehad numbered the reverse of that page (which was blank) as page1; there were ten additional sheets, numbered as pages 2 to 13,16to 19 and 22 to 25; and in the relevant cage she had indicated that -answers had been written on 25 pages (implying that there were 12additional sheets). The differences between the numbering of thepages and the actual number of sheets included in the answerscripts, suggested, prima facie, that from those three scripts therewere missing two sheets, one sheet, and two sheets, respectively.Among the answer scripts produced were those for Chemistry I andPhysics I, which were “OMR'' papers, in which candidates weregiven printed scripts on which they merely selected answers byshading the appropriate cage. Those scripts were subsequently
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corrected by computer. The petitioner alleged that the two scriptsproduced were not hers, but substitutions.
The available material was not sufficient to establish prima faciethat any of the scripts, other than Chemistry II, had been tamperedwith – although there was some suspicion.
There are only two possibilities in this case in regard to theChemistry II script. The respondent’s case is that the petitioner hadprobably handed over her answer script with only four sheets num-bered as pages 1 to 6 and 11 to 12; and that she had – deliberate-ly or inadvertently – taken out two blank answer sheets when leav- 60ing the Centre. That necessarily implies that after leaving herCentre the peitioner herself had – dishonestly – written answers onthose two sheets, numbering them as pages 7 to 10, and hadthereafter caused them to be posted to her father, with the cover-ing letter. The second possibility is that she did hand over her scriptwith six sheets, and that two sheets had been unlawfully removedthereafter, before her script was marked.
On the night of 23.5.2002 the petitioner's father telephoned the6th respondent, at his residence, and was told to submit a writtencomplaint to the Department of Examinations in Colombo the fol- 70lowing day. It was not possible to travel on 24.5.2002 due to a har-tal, and the father's complaint dated 24.5.2002 and the documentswere faxed to the 6th respondent on 24.5.2002. On the 6th respon-dent's instructions, all the original documents, including the enve-lope in which the anonymous letter had been sent, were handedover to the 2nd respondent, the Additional Commissioner pfExaminations, on 28.5.2002. The packet was by then at theEvaluation Center at Visakha Vidyalaya Colombo, at which thescripts were due to be marked soon thereafter.
In order to investigate the petitioner's complaint, the 3rd respon- sodent, the Deputy Commissioner of Examinations (Investigations)and another Deputy Commissioner visited the Evaluation Centre atVisakha Vidyalaya on 29.5.2002. According to the first affidavit(dated 12.11.2002) of the 3rd respondent:
"… The envelope containing the petitioner's answer scripts hadnot been opened. The seals were intact. If the envelope had beenopened the seals would have been damaged. The envelope was
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also not damaged at any point and was not tampered with in anyway. I then opened the envelope containing the petitioner'sChemistry answer scripts. The answer scripts were in order andthere was no evidence that the petitioner's answer scripts had beentampered with. Answer scripts were tied together with twinethrough a perforation on the top corner of the answer scripts. Therewas no indication that any papers had been detached from the peti-tioner's answer scripts." [emphasis added]
The 3rd respondent was investigating a very serious allegation,and those averments should have been much more specific. Heshould have stated, but did not state, whether he examined theenvelope containing the Chemistry II scripts. Had he opend onlythat packet, he would have found only one answer script of thepetitioner: why, then, did he keep referring to "scripts" ? What hehad to find out was how many sheets the petitioner's answer scriptconsisted of, and whether there was any indication that one ormore sheets had been removed. He should therefore have notedthe indox number of the script which he examined, the number ofsheets which it contained, and the numbering of the availablesheets; and should also have made an endorsement on that scriptto indicate that he had examined it on 29.5.2002.
What is more, he did not produce either any record (contempo-raneous or otherwise) of his observations, or any report that he hadmade to the 6th respondent or to any one else.
the results of the examination were expected in or about August2002. On 17.6.2002 the petitioner's father made an appeal to the6th respondent to expedite the investigation. However, there wasno communication from any one in the Department of Examinationseither to the petitioner or to her father, until 9.7.2002 when herstatement was recorded by an officer of the Department. Soon afterthat the petitioner became aware that the 6th respondent hadreferred the matter to the 5th respondent, the Director, CID, forinvestigation. She was not informed of the outcome of the depart-mental investigation.
At that point of time, if the 3rd respondent's affidavit is true, therewas no reason for the 6th respondent to think that any irregularityhad occurred. It was not at all clear why, and on what material, he
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had referred the matter to the CID. He did not file an affidavit.
On 4.8.2002 the results of the examination were released, andon 2.9.2002 the petitioner filed this application.
In October 2002 the CID reported that there was no evidencethat "the petitioner's answer scripts… were tampered with in anymanner".
In December 2002 this Court directed the 1st respondent (whohad succeeded to the office of Commissioner of Examinations inmid-August 2002) to produce the journal containing the entries inrelation to the sealing of the packets in which answer scripts wereenclosed and the opening of such packets for various purposesconnected with the examination. No journal was produced. In May2003 while this application was being argued before a differentlyconstituted Bench, it became necessary for learned State Counselto obtain instructions from the 3rd respondent, for which purposethe 3rd respondent referred to a file which he had with him. ThatBench then perused the file, and discovered that there was relevantmaterial therein which had not been brought to the notice of theCourt, and took it into Court custody. That turned out not to be anofficial file regularly maintained, with duly numbered folios, but acollection of documents – some originals, some copies – relevant tothis case, but not even arranged in chronological order.
That file contained the original of a journal maintained at theVisakha Vidyalaya Evaluation Centre, one page of which wasintended for the observations of officials of the Department ofExaminations. The 3rd respondent and the Deputy Commissionerwho had accompanied him, had made an entry on 29.5.2002 to theeffect that they had come there to examine the packet in question.However, inexplicably, they had failed to record any observations.It is probably for that reason that the journal was not producedwhen this Court called for it.
There was also in that file a sheet of paper, with some notesmade in Sinhala, undated and unsigned. It was admitted that thesewere the 3rd respondent's notes :
The pasting ("cp© S@") of the envelope was in a weak condi-tion;
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alone.
There were 28 answer scripts.
In the relevant answer script the page numbers shown ….[entry incomplete], [emphasis added]
Even in those notes the 3rd respondent had not indicated whichparticular script had been examined and what exactly he hadobserved.170
Finally, that file also contained a copy of the 6th respondent'sletter dated 2.7.2002 to the Director, CID, in which he had statedthat upon examination of the peitioner's script it had been found notto contain pages 7 to 10, and that that suggested that a grave irreg-ularity had taken place. If the material then available to the 6threspondent – as a result of the 3rd respondent's investigation -indicated that the packet had not been tampered with, it is difficultto understand why he thought that an irregularity had occurred.These matters were not explained by him by means of an affidavit.
It appears likely that the respondents have not disclosed all the isoavailable material to this Court, particularly the original file(s) con-taining the petitioner's father's complaint and the subsequent relat-ed documents.
The file taken from the 3rd respondent was kept in Court cus-tody. Thereafter the 3rd respondent perused the file in the regis-trar's office, and filed a third affidavit, in June 2003, in an effort toexplain these matters. He translated his unsigned note as follows :
The binding of the envelope was in a weak condition.
The signature on the sticker was illegible.
The envelope was held together by the strength of the stick- 190er in view of the weak binding.
There were 28 answer scripts.
the petitioner's answer script contained page nos. 1-7 and10." [emphasis added]
The signature on the sticker was illegible.
Because it had not been properly pasted
[entry incomplete] by the strength of the sticker
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An examination of the envelope containing the Chemistry IIscripts revealed that a part of the flap had not been pasted down,and that it was a sticker pasted over the flap which kept the enve-lope closed. It is possible that the sticker had been partly removed,that the contents of the envelope had been tampered with, and thatthe sticker had then been re-fastened. It was common ground that 200the 3rd respondent and the officials at the Evaluation Centre hadnot opened that envelope from that particular side. (There were nosigns of tampering on the other envelopes.)
The respondent's case depended heavily on the 3rd respon-dent's affidavits. It was he who first examined the packet, and hisobservations were vital. His first affidavit gave the impression thatthe envelope and the seals (i.e. the stickers) were in perfect condi-tion. Thereafter when his file was examined by Court his observa-tions as to the unsatisfactory "pasting" of the envelope were dis-covered. That he tried to explain away by referring to the "binding" 210of the envelope. What is more serious, he tried to get over theabsence of a contemporaneous record of his observations regard-ing the petitioner's script by claiming – falsely – that his undatednote did refer to the actual page numbers of the available sheetsof that particular script. However, in making that false claim headded another false assertion, that the script contained pages 7and 10, which it most certainly did not.
Learned State Counsel valiantly urged that the reference topages 7 and 10 was an obvious mistake, and that he had meant tosay "pages 1 to 6 and 11 to 12". In an affidavit intended to deal with 220a vital issue, with legal assistance available, how could he havemade such a mistake? If pages 7 and 10 had been found in thepetitioner's answer script, then the two sheets (pages 7 to 10)which the petitioner's father claimed to have received could nothave been submitted at the examination, and must necessarilyhave been subsequent fabrications.
Let me assume, however, that the 3rd respondent did make amistake. It was not an incautious answer in the witness box, but amistake in a document prepared and signed after being carefullyread and considered. Such a mistake betrays a serious lack of 230care, aggravating the lack of diligence shown throughout his inves-tigation. The allegation which he was investigating affected the
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integrity of one of Sri Lanka’s most important public examinations -one of vital importance to about 150,000 students annually, affect-ing their right to universal and equal access to higher education(recognised by Article 13 of the International Covenant onEconomic Social and Cultural Rights, and made an objective of SriLankan State policy laid down by Article 27(2)(h) of theConstitution).
The officials of the Department of Examinations owed a duty to 240the petitioner, and to all other candidates, to conduct that examina-tion with adequate security measures to ensure the integrity of theexamination, and in particular that answer scripts were not tam-pered with and were duly marked in full; and consequently to con-duct a full and open investigation in respect of any serious allega-tion of irregularity. The material before the Court does not enableme to reach a conclusion that her script had or had not been tam-pered with. However, I have no hesitation in holding that there hadnot been a proper investigation, and that thereby the petitioner'sright under Article 12(1) to the protection of the law had been 250infringed.
In regard to the other scripts, the petitioner made no complaintto the department – and she complained about those scripts onlyafter they were produced. In the circumstances, it is difficult to findfault with the Department for not holding an inquiry into those mat-ters as well.
I turn now to the question of relief. The petitioner's grades were:
Combined MathematicsC
PhysicsC
ChemistryC260
Her Z-scores were not disclosed to her, on the ground that theUniversity Grants Commission, which was not made a respondent,did not require such disclosure in the case of candidates not eligi-ble to apply for University admission. The respondents pointed outthat the petitioner had answered more than the required number ofquestions, and that even if the additional sheets were taken intoaccount her grades would not change, and she would still be ineli-gible to apply for University admission.
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On the available material, I am unable to conclude that the peti-tioner's results would have been significantly better, at least to the 270extent of achieving eligibility to apply for University admission. Inany event, bare eligibility was most unlikely to result in admission.However, the departmental investigation has been a mere pre-tence. I therefore hold that the petitioner's fundamental right underArticle 12(1) has been infringed by officials of the Department ofExaminations, and I award her a sum of Rs 100,000 as compen-sation and costs payable by the State. I direct the 1st respondentto consider whether a disciplinary inquiry should be held to deter-mine whether the 3rd respondent had failed to conduct a properinvestigation.28C
WIGNESWARAN, J.- I agree.
WEERASURIYA, J.I agree.
Relief granted.