[entry incomplete] by the strength of the sticker
Sri Lanka Law Reports
[2004] 1 Sri L.R
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
Farwin v Wijesiri, Commissioner of Examinations
and Others (Fernando.J.)
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
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.
Sri Lanka Law Reports
[2004] 1 Sri L.R
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
Relief granted.