005-SLLR-SLLR-2003-1-KARUNATHILAKA-AND-ANOTHER-v.-JAYALATH-DE-SILVA-AND-OTHERS.pdf
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Karunathilaka & another v. Jayalath de Silva and others
(Bandaranavake. J.)
35
KARUNATHILAKA AND ANOTHER
v.JAYALATH DE SILVA AND OTHERS
SUPREME COURTS.N.SILVA, CJ.
BANDARANAYAKE, J. ANDYAPA, J.
SC APPLICATION 334/200222ND AND 28TH OCTOBER, 2002AND 6TH NOVEMBER, 2002
Fundamental Rights – Article 12 (1) of the Constitution -The principle of fair-ness – School admission – Executive action – Arbitrary exclusion of a childfrom admission to a school.
At the material time the 1st respondent was the Principal, Dharmashoka MahaVidyalaya, Ambalangoda.
The 1st petitioner, a teacher, is the mother of the 2nd petitioner. As a teachershe had to serve in Puttalam with effect from 1.1.1990, aii uncongenial areawhere she had to serve for 5 years. However, in fact she served there for 11years. After much effort she obtained a transfer to Dharmashoka MahaVidyalaya, Ambalangoda, her native place with effect from 15.6.2001. The 2ndpetitioner was born in 1991 and was schooling in a school in Puttalam whichhad classes only up to Grade 5. Ever since she made attempts to have the 2ndpetitioner admitted to Dharmashoka Maha Vidyalaya to which her second sonwas admitted to year 1 in the year 2000.
The Education authorities refused to admit the 2nd petitioner to DharmashokaMaha Vidyalaya contrary to the relevant rules and the law, on arbitrarygrounds. The 2nd petitioner could have been admitted to that school which wasonly 500 meters from his residence under- Clause 13 of the relevant Circularwhich required such admission to grade 5, a facility available to public servantsor parents on change of residence.
Clause 16 of the Circular requires.the Education authorities to find a suitableschool for children who had passed grade.5. This was not done. Instead the2nd petitioner was refused entry to Grade 6 of Dharmashoka Maha Vidyalayaas he had obtained only 139 marks at the Grade 5 scholarship examinationwhen the cut off point for the said Vidyalaya was 148. Instead a student hadbeen admitted to Grade 6 of the school on the orders of the Ministry. The factthat the said student had obtained 158 marks was irrelevant in view of rule 13
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which limited students in any class to 40. But it was proved that all Grade 6classes 6A to K had more than 40 students in each class.
Section 37 (a) of the Education Ordinance, No. 31 of 1939 also provides com-pulsory education for children between 5-16 year of age. The Minister has tomake regulations for that matter. This too required the authorities to find aschool for the 2 nd petitioner but he was without a school since January 2002.
Held:
The refusal to admit the child to Dharmashoka Maha Vidyalaya was not on areasonable basis, but was a decision that rested on arbitrariness violative ofthe 2nd petitioner’s rights under Article 12 (1) of the Constitution.
Per Bandaranayake, J.
‘The basic principle governing the concept of equality is to remove unfairnessand arbitrariness. It profoundly forbids actions which deny equality and there-by become discriminatory. The hallmark of the concept equality is to ensurethat fairness is meted out”
APPLICATION for relief for infringement of fundamental rights.Vasana Wickramasena for petitionersS. Barrie. State Counsel for respondents.
Cur.adv.vult.
November 25, 2002
SHIRANI A. BANDARANAYAKE, J.
The 2nd petitioner in this application is an 11 year old boy,represented by his next friend: the 1st petitioner, who is the moth-er of the child. Presently the child is without a school and accord-ing to the submissions made, is at home striving hard to study inwhichever the limited way it is conceivable. By the numerous letterswhich are filed of Record, it appears that the 1st petitioner, ateacher by profession, has made every endeavour, for her son toobtain admission to G/Dharmashoka Vidyalaya, Ambalangoda,which is a mere 500 meters away from her permanent residence,to no avail.
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Karunathilaka & another v. Jayalath de Silva and others
(Bandaranavake. J.)
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The 1st petitioner joined the Government service as ateacher in September 1979, and was attached to Jinaratne MahaVidyalaya, a school situated in Galle. During the period 1988-1989she underwent training at the Balapitiya Teachers’ Training Collegeand was transferred to Attavilluwa Medhananda GovernmentSchool in Puttalam with effect from 01.01.1990. This transfer waseffected on the basis of compulsory service for teachers in difficultor uncongenial areas in the country, which is generally limited to aperiod of 5 years. The 2nd petitioner was born in February 1991,while she was serving in puttalam and became eligible to be admit-ted to the year 1 in January 1997. Since June 1995 the 1st peti-tioner had been requesting for a transfer to Ambalangoda, admit-tedly, that being her native place. The documents marked P2 dated19.06.1995, P3 dated 07.08.1996, P4 dated 01.11.1998 and P5dated 28.11.2000, bear ample testimony for her unremitting effortsto obtain a transfer to a place closer to her native place. Meanwhilethe 2nd petitioner commenced his studies at St. Andrew’s PrimarySchool in Puttalam in January 1997: admittedly a school with class-es upto Grade 5. Meanwhile the 1st petitioner was transferred toDharmashoka Vidyalaya, Ambalangoda with effect from
P10. Since then, the 1st petitioner had been makingapplications to the 1st respondent, seeking admission for the 2ndpetitioner to the said school.
The petitioners claim that the 1st to 4th respondents haveacted contrary to Clause 15 (a) and/or Clause 16 of the Circular No.2001/15 (P22) and thereby infringed the 2nd petitioner's funda-mental right to equality and equal protection of the law guaranteedto him by Article 12 (1) of the Constitution.
This Court granted leave to proceed for the alleged infringe-ment of Article 12 (1) of the Constitution.
It is not disputed that, the 2nd respondent is in charge ofNational schools as the Director of Education attached to theMinistry of Education. He on the grievances of the 2nd petitioner,has taken the position that 1 st petitioner's tranisfer does not per sequalify the 2nd petitioner to be admitted to the same school, interms of Clause 13 of the currently applicable School AdmissionCircular No. 2001/15. His explicit submission was that the maxi-mum number of students per class in a Government school had to
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be maintained at 40 and if that number is exceeded, no furtheradmissions should be made from the date of the publication of thesaid Circular. Due to the above position, the 2nd respondent sub-mitted that there were no vacancies in year 5 of DharmashokaVidyalaya and the application to admit the 2nd petitioner to Grade5 in the year 2001 was therefore rejected.
Concerning the admission to Grade 6, he submitted thatClauses 14 and 15 of the Circular No. 2001/15, regulate suchadmissions. The students who pass the Grade 5 scholarship exam-ination were entitled to apply for entrance to a different schoolwherein all such applications will be processed and selectionsmade by the School Affairs Division of the Ministry of Education.For the Grade 5 scholarship holders to obtain entrance to a newschool, a cut off mark would be worked out by the Ministry ofEducation based on the aggregate marks of all the applicants whohave chosen the school, which results in the cut off mark differingfrom school to school. Consequently, the cut off mark forDharmashoka Vidyalaya for admission to year 6 for the year 2002was 148. The 2nd respondent took up the position that as the 2ndpetitioner obtained only 139 marks (P7) he was not eligible foradmission to the said school. Referring to the 6th, 8th and 10threspondents, who were admitted to Dharmashoka Vidyalaya, the2nd respondent stated that they were entitled to have a legitimateexpectation of being admitted to the said school upon the marksthey had obtained at the Grade 5 scholarship examination. He fur-ther took up the position that if the 2nd petitioner was admitted toGrade 6 of Dharmashoka Vidyalaya, that would cause grave preju-dice to numerous other applicants, who have applied, but notselected as they have fallen short of the cut off mark by a fewmarks.
Admittedly the 2nd petitioner studied in a school at Puttalam,which had classes only upto Grade 5. Circular No. 2001/15 dated
provided for such situations and Clause 16 specificallystates that the Provincial Director of Education / Zonal Director ofEducation should provide alternative school for all students whohave got through Grade 5 in such school. In such circumstances, itcannot be disputed that the educational authorities were responsi-ble in allocating a school for the 2nd petitioner. Clause 16 referred
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Karunathilaka & another v. Jayalath de Silva and others
(Bandaranavake, J.)
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to Circular No. 2001/15, does not specify any obligation on the partof a parent to take any action for the purpose of such child gainingadmission to a school.
No material was placed before this Court to establish thateither the Provincial Director of Education for the North WesternProvince or the Zonal Director of Education for Puttalam, took anyaction to locate a suitable school for the 2nd petitioner. From apractical perspective it should have been the Provincial Director ofEducation for the Southern Province or the Zonal Director ofEducation for Ambalangoda, who should have allocated a schoolfor the 2nd petitioner, as his mother was transferred toDharmashoka Vidyalaya in June 2001. Admittedly, no steps weretaken by any person in authority in compliance with Clause 16.
Learned State Counsel for the respondents took pains tosubmit that in terms of Clause 13.1 of Circular No. 2001/15, dated
that the number of students in a class of a Governmentschool cannot exceed 40. The said Clause states that, at the timethe Circular was issued, if there were more than 40 students nomore new students should be admitted to those classes. Indeed itis a laudable decision not to overcrowd the class rooms, whichwould permit a better environment that would be conducive for thestudents in Government schools. However, it appears that the 1strespondent has paid no heed to the contents of this Clause. His let-ter dated 14.03.2002 to the 2nd respondent, which gives thebreakdown of the number of students, as given below, demon-strates that all 10 classes of Grade 6 had more than 40 students,at a time well after the relevant Circular had come into effect:
6A-446G-44
6B-456H-45
6C-446J-44
6D-456K-45
6E-456F-44
In the circumstances it is revealing to note that the 8threspondent was admitted to Dharmashoka Vidyalaya on the basisof a letter, dated 08.05.2002, issued by a Director of Education(School Affairs) of the Ministry of Education. If I may reiterate, the
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1st respondent, informed the 2nd respondent by letter dated
that they are not having any vacancies, as all classesare accommodating more than 40 students. However, the Ministryissued a letter in order to admit the 8th respondent ignoring the factthat all classes by that time had more than 40 students. It is alsopertinent to note that the 8th respondent was moving fromSangamitta Girls School to Dharmashoka Vidyalaya. Admittedly,she had obtained 158 marks at the scholarship examination.However, Clause 13.1 does not refer to any special circumstancesthat should be taken into consideration in exceeding the maximumnumber of students in a class. It is thus clear that the 40 studentslimit in each class has been observed in the breach.
It is common ground that the 1 st petitioner was endeavour-ing to admit the 2nd petitioner to Dharmashoka Vidyalaya since mid2001. At that time the 2nd petitioner was studying in Grade 5 andthe basis for such admission was the transfer of the mother, the 1stpetitioner, from Puttalam to Ambalangoda. In this kind of a situation,the 1 st respondent should have applied the guidelines enumeratedin Clause 13 of the Circular No. 2001/15.
Clause 13 of the said Circular dated 29.05.2001, provides forthe following:-
“Vacancies in Grade 2 to 11 (excluding Grade six) should be
filled from the students in the following categories:
students, whose parents/lawful guardian, who arepublic servants and have come to reside in the areawhere the school is situated at;
students whose parents/lawful guardian who haschanged their/his permanent residence to the areawhere the school is situated at.
It is not disputed that the 2nd petitioner falls into both cate-gories as the 1st petitioner was transferred and at the same timethe 1st petitioner shifted her permanent residence from Puttalam toAmbalangoda. The 1st and 2nd respondents could have, thus con-sidered the admission of the 2nd petitioner on the basis of Clause13 of Circular No. 2001/15 to Grade 5.
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Karunathilaka & another v. Jayalath de Silva and others
(Bandaranavake. J.)
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The 1st petitioner was compelled to work in Puttalam, con-sidered an uncongenial area as an administrative requirement inthe service. She has served more than double the required periodof 5 years. The 2nd petitioner, being the child, had to remain withthe mother and receive his education in the same area, nearly 200kilometers away from his native place. When the mother receivedthe benefit of a transfer to her native place after more than adecade, it is only reasonable that the child should also receive thebenefit of obtaining a school in the same area. Clause 13 vests theauthorities with ample power to grant such benefits to the child.Instead of looking at the situation in a realistic and humane way,they have unreasonably refrained from acting in terms of Clause13.
The significance of Clause 16 of the said Circular, which isreferred to earlier, could be seen with reference to section 37(2) ofthe Education Ordinance, No. 31 of 1939. This section refers to thepowers conferred to the Minister to make Regulations for any mat-ter referred under that section. The items under reference includethe compulsive need for a child between the ages of 5 to 16 toattend school, and thus it reads as follows:
“(s) requiring, subject to such exemptions and qualificationsas may be contained in such regulations, the parent of anychild not less than five and not more than sixteen years ofage residing within such area, to cause such child to attenda school unless he has made adequate and suitable provi-sion for the education of. such child….”
Two broad aspects strike my mind on a consideration of thetotality of the point at issue: firstly, a child at the tender age of 11years falling prey to diffident decisions of the relevant authorities forno fault of his and secondly, having been made to approach theapex Court in the country to obtain redress for his grievance. Thesetwo matters, in my view speak volumes on the lackadaisical attitudeof the authorities concerned in this extraordinarily important sphereof service.
The basic principle governing the concept of equality is toremove unfairness and arbitrariness. It profoundly forbids actions,which deny equality and thereby becomes discriminative. The hall-
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mark of the concept of equality is to ensure that fairness is metedout. Article 12(1) of the Constitution, which governs the principlesof equality, approves actions which has a reasonable basis for thedecision and this Court has not been hesitant to accept those aspurely valid decisions.
However, situations such as the instant case under reviewcannot be applauded, as the question in issue itself indicates clear-ly, that the refusal to admit the child to the school was not on a rea-sonable basis, but is a decision that rests on arbitrariness. At thetime the 1st petitioner was transferred from Puttalam toAmbalangoda, the authorities should have acted in terms ofClauses 13 and 16 of the said Circular. To reiterate; Clause 13 enu-merates a parent’s transfer and/or the change of residence as thebasis for filling up vacancies in the Grades 2 to 11, excluding Grade6, whereas Clause 16 stipulates a mandatory duty on theEducational authorities to allocate an alternative school for a childwho has been studying in a school which has classes only up toGrade 5.
Considering the circumstances of this case, the followingpoints are not in dispute: the 1st petitioner served in an unconge-nial area for 11 years; she obtained a transfer to DharmashokaVidyalaya in June 2001, her present residence is a mere 500meters away from the said school, her younger son was admittedto year 1 of Dharmashoka Vidyalaya in March 2002, the 2nd peti-tioner obtained 139 marks at the Grade 5 scholarship examination,he was attached to a school which has classes only up to Grade 5and since January 2002, he is without a school.
It was Joseph Addison, in ‘The Spectator” who referred to thevalue of Education, in the following words:
“Education is a companion which no misfortune can depress,no crime can destroy, no enemy can alienate, no despotismcan enslave. At home a friend, abroad an introduction, in soli-tude a solace, and in society an ornament. It chastens vice, itguides virtue, it gives at once, a grace and government togenius.
Karunathilaka & another v. Jayalath de Silva and others
SC ■ • (Bandaranavake. J.)43
Without it what is man? A splendid slave, a reasoning savage.”
The 2nd petitioner has been denied his cherished companionof education and compelled to languish at home whilst, the 1st peti-tioner, his mother teaches other children in the school located with500 meters from his home. This was due to unreasonableness andarbitrariness in executive and administrative action in the failure totake a necessary action in terms of Clauses 13 and 16 of Circular No.2001/15, at the appropriate stage.
For the aforementioned reasons, I hold that the 2nd petition-er’s fundamental right guaranteed under Article 12(1) of theConstitution has been infringed by the State. I have made the Stateresponsible, as the liability of this infringement cannot be attributed toany single officer of the Ministry of Education. The 2nd respondent isdirected to make necessary arrangements for the 2nd petitioner to beadmitted to the Grade 6 of the G/Dharmashoka Maha Vidyalaya,Ambalangoda, forthwith. The State is directed-to pay a sum of Rs.25,000/- to the 2nd petitioner as compensation and costs, for beingdeprived of formal education at a vital stage in his life. This amountis to be deposited, within a month from today, in a “Hapan” Childrens’Savings Account at the National Savings Bank, AmbalangodaBranch in the name of the 2nd petitioner and the 1st petitioner as theguardian for such account.
S.N. SILVA, C.J. – I agree.
YAPA, J.-I agree.
Relief granted.