048-SLLR-SLLR-2006-V-2-FERNANDO-vs.-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf
CA
Fernando vs.
University Grants Commisssion and Others
373
FERNANDOvs.
UNIVERSITY GRANTS COMMISSION AND OTHERSCOURT OF APPEAL.
SRIPAVAN, J.
BASNAYAKE, J.
CA 2524/2004.
AUGUST 03,2005.
DECEMBER 16, 2005.
Writ of Certiorari – University Grants Commission – Selected to follow a coursein Bio Science – Registered – Following year qualified for admission to follow acourse of study in Medicine – Application refused – Unreasonable ? – Legality ?
The petitioner was selected to follow a course in Bio Science for theacademic year 2003/2004 and got himself registered with the University ofJayawardanepura. Thereafter the petitioner sat the Advanced Level Examinationand became provisionally qualified to follow a course of Study in Medicine. Theapplication made by the petitioner to follow the said course, was refused by therespondents for the reason that he had already registered to follow a course ofstudy in a Higher Educational Institution and he has not de-registered withinapproximately 30 days from the last date of registration. The petitioner soughtto quash the said decision.
HELD:
Per Sripavan J.
“According to the respondents, the petitioner should have de-registeredhimself for the Bio Science course within a period of thirty days from the lastdate of the registration. This would mean that the petitioner before knowing theresults of the Advanced Level Examination for the subsequent year shouldhave withdrawn his registration. Isn’t this a mere gamble or does the UniversityGrants Commission expect the petitioner to try the luck in a manner whichfinally results in restricting access to higher education.” 1
(1)The Bio Science course has neither commenced nor even scheduledto commence in the near future. The refusal of the respondents toconsider the petitioner’s application for admission to follow Medicineis unreasonable. A rule becomes unreasonable if it is manifestly absurdor if it is outrageous in its defiance of logic.
374
Sri Lanka Law Reports
(2006) 2 Sri LR.
Whether or not a particular decision is or is not unreasonable is oftennothing more than a question of opinion and degree.
APPLICATON for Writs in the nature of Certiorari or Mandamus.
Cases referred to:
Nadeika Hewage vs. University Grants Commission and Others – SC627/2002 – SCM 08.08.2003
M. K. S. de Silva vs. University Grants Commission and others – CA2525/2004 – CAM 22.09.2005
M. K. S. de Silva vs. University Grants Commission – SC Spl LA 239/05-SCM 07.11.2005
Elmore Perera for petitioners.
K. Arulanandan DSG for respondents.
Cur. adv. vult.
April 24, 2006.
SRIPAVAN, J.The petitioner who was an advanced level student from Alutgama MahaVidyalaya sat the G. C. E. A/L exam in August 2003 and obtained thefollowing grading. Physics – A, Chemistry – B and Biology – C. In January2004 the petitioner was informed by the ninth respondent that he has beenselected to follow a course in Bio Science for the academic year 2003/2004. Accordingly, the petitioner got himself registered with the Universityof Sri Jayawardenapura to follow the said course of study. The petitioner inparagraphs 6 and 14 of the petition alleges that up to the time of institutingthis application, the course in Bio Science neither commenced nor thepetitioner had been instructed to follow any lectures. These avermentswere simply denied by the respondents in their statement of objectionswithout indicating the date on which the said course in fact commenced.Thus, this court accepts the version of the petitioner that the Bio Sciencecourse did not in fact commence as on 15th December 2004.
The petitioner having registered himself with the University of SriJayawardenapura in February 2004, submitted his application to sit theG. C. E. Advanced Level Examination as a private candidate in May 2004from the Kalutara District. In August 2004, as evidenced by P4, the petitionerbecame aware that he passed the said exam with the following gradings.Physics – B, Chemistry – A, Biology – B, Thus the petitioner became
CA
Fernando vs.
University Grants Commisssion and Others (Sripavan, J.)
375
provisionally qualified for admission to university as he obtained a Z-scoreof 1.9135. It was not disputed that the required Z-score for admission toUniversity from the Kalutara District for the course of study in medicinewas 1.8809. Though the petitioner made an application to follow a courseof study in medicine, he was informed by the eighth respondent of theUniversity Grants Commission by letter dated 25th October, 2004 markedP6 that the petitioner’s application had been rejected for the reason thathe had already registered to follow a course of study in a Higher EducationalInstitution. Accordingly, the petitioner moves to quash the letter dated25th October 2004 marked P6 and a writ of mandamus to direct therespondents to admit the petitioner to a course of'study in medicine.
Learned Deputy Solicitor General relied on Rule 6.2 of the UniversityAdmissions Handbook titled “Admission to Undergraduate Course of theUniversities in Sri Lanka” for the academic year 2003/2004 and arguedthat a student who has already registered for a particular course of studyat a university for the academic year 2003/2004 on the basis of the resultsof the G. C. E. Advanced Level Examination could apply for admission toanother course of study based on the results of a subsequent examination,only if he has withdrawn his earlier registration within a period of thirtydays from the last date for such registration. Thus, the learned D. S. G.contended that the importance of imposing a time period of thirty days forthe purpose of de-registration arises as a result of the University GrantsCommission having to finalise the filling of vacancies which arise due toselected students not taking up their places in universities before thecommencement of the academic session (emphasis added). Nomaterial has been placed by the respondents to show that the course inBio Science at the Sri Jayawardenapura University had commenced whenletter dated 25th October 2004 marked P6 was sent to the petitioner. Onthe contrary, the petitioner in paragraph 14 of the petition specifically statesthat the Bio Science course has neither commenced nor even scheduledto commence in the near future. Therefore, the refusal of the first respondentto consider the petitioner’s application for admission to a course of studyin medicine for the academic year 2004/2005 is unreasonable. Whether ornot a particular decision is or is not unreasonable is often nothing morethan a question of opinion and degree. A rule becomes unreasonable if itis manifestly absurd or if it is outrageous in its defiance of logic. MarkFernando, J in the case of Nadeeka Hewage vs. University GrantsCommission and Others1 made the following observations with regard toRule 6.2:
“Assuming that the existing rule 6.2 is valid, it is nevertheless necessaryto remember that access to higher education is a right won by a small
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Sri Lanka Law Reports
(2006) 2 Sri LR.
minority of students by their sustained effort over a considerable period oftime, and not by luck or by chance… Rule 6.2 must be read as conferringa right of option to a registered student in respect of access to highereducation for a subsequent year, and not as providing a mere gamble;and as enhancing access based on merit rather than restricting access. Itfollows, that a student must be given all relevant information subject toany reasonable requirement of confidentiality, necessary for the exerciseof his option by means of an informed and reasoned decision as to hisprospects of success. Rule 6.2 must not be reduced to the level of "achance to try his luck”.
According to the submissions of the learned D. S. G. the petitionershould have de-registered himself from the Bio-Science course within aperiod of thirty days from the last date of the registration. This would meanthat the petitioner before knowing the results of the G. C. E. A/L examinationfor the subsequent year should have withdrawn his prior registration. Isn’tthis a mere gamble or does the University Grants Commission expect thepetitioner to try his luck in a manner which finally results in restrictingaccess to higher education ? This court in the case of M. K. K. S. de SilvaVs. University Grants Commission and Others1 remarked that the admissionrules read with Article 12 confer a right on a duly qualified candidate to gethimself admitted to the University. The University Grants Commission beinga body set up by a statute and performing public functions using publicfunds has a public duty upon a candidate who has obtained the requiredstandard to gain admisison to a university” and directed that the petitionerin that application be admitted to a course of study in Engineering for theacademic year 2004/2005. The Special Leave to Appeal sought by thefirst respondent against this order of the Court of Appeal was refused bythe Supreme Court3
In the circumstances set out above, the court is of the view that sincethe petitoner has obtained the required Z-score, a writ of certiorari is issuedto quash the refusal to consider the petitioners’ application for admissionto a course of study in medicine marked P6. A writ of mandamus is issueddirecting the respondents to admit the petitioner to a course of study inmedicine for the academic year 2004/2005. If the said course has alreadycommenced, the petitioner would be entitled to follow a course of study inmedicine which would commence the following year. The petitioner’sapplication is therefore allowed. The petitioner would be entitled to a sumof Rs. 10,000 as costs payable by the first respondent.
BASNAYAKE, J. — / agree.
Application allowed.
Writ of mandamus issued.