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KARUNATHILAKA AND ANOTHERvTHE PRINCIPALG/DHARMASOKA MAH A VIDYALAYA AND OTHERSSUPREME COURT.
SARATH SILVA, CJ.
DR. SHIRANI BANDARANAYAKE, J.
HECTOR YAPA, J.
S.C. (F.R.) APPLICATION NO. 334/2002.
22ND OCTOBER, 2002
Fundamental Rights – Infringement of Article 12(1) of the Constitution -Basic principles governing the concept of equality – Mandatory duty toallocate an alternative school?
The 2nd petitioner is an 11 year old boy, represented by his next friend, the1 st petitioner, the mother of the 2nd petitioner. The 2nd respondent is theDirector, National Schools of the Ministry of Education.
The 1st petitioner who was teaching at Jinarathana Maha Vidyalaya,situated in Galle was transferred to Dharmasoka Vidyalaya, Ambalangoda.Since then, she had been making applications to the 1st respondent,seeking admission for the 2nd petitioner to Dharmasoka Vidyalaya. The2nd respondent had taken up the position that the 1st petitioner's transferdoes not per se qualify the 2nd petitioner to be admitted to the saidDharmasoka Vidyalaya in terms of clause 13 of the School AdmissionsCircular No. 2001/15 as there were no vacancies in year 5 of the Schoolconcerned. The 2nd respondent's view in interpreting the aforesaid circularis that if there were more than 40 students, no more new students shouldbe admitted to those classes.
Held:
Clause 16 of the School Admission Circular No. 2001/15 stipulatesa mandatory duty on the Educational Authorities to allocate analternative School for a child who has been studying in a schoolwhich has classes only up to Grade 5.
The basic principle governing the concept of equality is to removeunfairness and arbitrariness. It profoundly forbids actions, whichdeny equality and thereby becomes discriminative. The hallmark of
Kamathilaka and another v The Principal G/Dharmasoka Maha Vidyalaya and others
SC(Dr. Shirani Bandaranayake,!)347
the concept of Equality, is to ensure that fairness is meted out. Article12(1) of the Constitution, which governs the principles of equality,approves actions which has a reasonable basis for the decision and thisCourt has not been hesitant to accept those as purely valid decisions.
Per Dr. Shirani Bandaranayake, J.
11The 2nd petitioner has been denied his cherished companion of education
and compelled to languish at home whilst, the 1 st petitioner, his mother teachesother children in the school located within 500 meters from his home. This wasdue to unreasonableness and arbitrariness in executive and administrativeaction in the failure to take necessary action in terms of Clauses 13 and 116 ofCircular No. 2001/15, at the appropriate stage …."
Per Dr. Shirani Bandaranayake, J.
"Education is a companion which no misfortune can depress, no crime can
destroy, no enemy can alienate, no despotism can enslave. At home a friend,abroad an introduction. In solitude a solace, and in society an ornament. Itchastens vice, it guides virtue, it gives at once, grace and government to genius.Without it what is man? A splendid slave, a reasoning savage…" (JosephAddison, in "The Spectator")
APPLICATION in terms of Article 126 of the Constitution.
Vasana Wickremasena for petitioners.
S. Barrie S.C. for the respondents.
Cur adv vult.
November 25, 2002
DR. SHIRANI BANDARANAYAKE, J.
The 2nd petitioner in this application is an 11-year old boy,represented by his next friend, the 1 st petitioner, who is the motherof the child. Presently the child is without a school and according tothe submissions made, is at home striving hard to study in whicheverthe limited way it is conceivable. By the numerous letters which arefiled of record, it appears that the 1st petitioner, a teacher byprofession, has made every endeavour, for her son to obtainadmission to G/Dharmasoka Vidyalaya, Ambalangoda, which is amere 500 meters away from her permanent residence, to no avail.
The 1 st petitioner joined the Government service as a teacher inSeptember 1979, and was attached to Jinaratne Maha Vidyalaya, aschool situated in Galle. During the period 1988-1989, she
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underwent training at the Balapitiya Teachers' Training College andwas transferred to Attavilluwa Medhananda Government School inPuttalam with effect from 01.01.1990. This transfer was effected onthe basis of compulsory service for teachers in difficult oruncongenial areas in the country, which is generally limited to aperiod of 5 years. The 2nd petitioner was bom in February 1991,while she was serving in Puttalam and became eligible to beadmitted to the year 1 in January 1997. Since June 1995, the 1stpetitioner had been requesting for a transfer to Ambalangoda,admittedly, that being her native place. The documents marked P2dated 19.06.1995, P3 dated 07.08.1996, P4 dated 01.11.1998 andP5 dated 28.11.2000, bear ample testimony for her unremittingefforts to obtain a transfer to a place closer to her native place.Meanwhile the 2nd petitioner commenced his studies at St.Andrew's Primary School in Puttalam in January 1997; admittedly aschool with classes upto Grade 5. Meanwhile the 1st petitioner wastransferred to Dharmashoka Vidyalaya, Ambalangoda with effectfrom 15.06.2001 (P10). Since then, the 1st petitioner had beenmaking applications to the 1 st respondent, seeking admission for the2nd petitioner to the said school.
The petitioners claim that the 1 st to 4th respondents have actedcontrary to Clause 15(a) and /or Clause 16 of the Circular No.2001/15 (P22) and thereby infringed the 2nd petitioner'sfundamental right to equality and equal protection of the lawguaranteed to him by Article 12(1) of the Constitution.
This Court granted leave to proceed for the alleged infringementof Article 12(1) of the Constitution.
It is not disputed that, the 2nd respondent is in charge of nationalschools as the Director of Education attached to the Ministry ofEducation. He, on the grievances of the 2nd petitioner, has taken theposition that the 1st petitioner's transfer does not per se qualify the2nd petitioner to be admitted to the same school, in terms of Clause13 of the currently applicable School Admission Circular No.2001/15. His explicit submission was that the maximum number ofstudents per class in a Government school had to be maintained at40 and if that number is exceeded, no further admissions should bemade from the date of the publication of the said Circular. Due to
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(Dr. Shirani Bandaranayake,J.)349
the above position, the 2nd respondent submitted that there were novacancies in year 5 of Dharmashoka Vidyalaya and the applicationto admit the 2nd petitioner to Grade 5 in the year 2001 was thereforerejected.
Concerning the admission to Grade 6, he submitted that Clauses14 and 15 of the Circular No. 2001/15, regulates such admissions.The students who pass the Grade 5 scholarship examination wereentitled to apply for entrance to a different school wherein all suchapplications will be processed and selections made by the SchoolAffairs Division of the Ministry of Education. For the Grade 5scholarship holders to obtain entrance to a new school, a cut offmark would be worked out by the Ministry of Education based on theaggregate marks of all the applicants who have chosen the school,which results in the cut off mark differing from school to school.Consequently, the cut off mark for Dharmasoka Vidyalaya foradmission to year 6 for the year 2002 was 148. The 2nd respondenttook up the position that as the 2nd petitioner obtained only 139marks (P7) he was not eligible for admission to the said school.Referring to the 6th, 8th and 10th respondents, who were admittedto Dharmashoka Vidyalaya, the 2nd respondent stated that, theywere entitled to have a legitimate expectation of being admitted tothe said school upon the marks they had obtained at the Grade 5scholarship examination. He further took up the position that if the2nd petitioner was admitted to Grade 6 of Dharmashoka Vidyalaya,that would cause grave prejudice to numerous other applicants, whohave applied, but not selected as they have fallen short of the cutoff mark by a few marks.
Admittedly the 2nd petitioner studied in a school at Puttalam,which had classes only upto Grade 5. Circular No. 2001/15 dated29.05.2001 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 responsiblein allocating a school for the 2nd petitioner. Clause 16 referred to inCircular No. 2001/15, does not specify any obligation on the part ofthe parent to take any action for the purpose of such child gainingadmission to a school.
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No materia! was placed before this Court to establish that eitherthe Provincial Director of Education for the North Western Provinceor the Zonal Director of Education for Puttalam, took any action tolocate a suitable school for the 2nd petitioner. From a practicalperspective it should have been the Provincial Director of Educationfor the Southern Province or the Zonal Director of Education forAmbalangoda, who should have allocated a school for the 2ndpetitioner, as his mother was transferred to Dharmashoka Vidyalayain June 2001. Admittedly, no steps were taken by any person inauthority in compliance with Clause 16.
Learned State Counsel for the respondents took pains to submitthat in terms of Clause 13.1 of Circular No. 2001/15, dated29.05.2001, 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 it isa laudable decision not to over crowd the classrooms, which wouldpermit a better environment that would be conducive for the studentsin Government schools. However, it appears that the 1 st respondenthas paid no heed to the contents of this Clause. His letter dated
to the 2nd respondent, which gives the breakdown of thenumber of students, as given below, demonstrates that all 10classes 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 basis ofa letter, dated 08.05.2002, issued by a Director of Education (SchoolAffairs) of the Ministry of Education. If I may reiterate, the 1strespondent, informed the 2nd respondent by letter dated
that they are not having any vacancies, as all classes
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are 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, shehad obtained 158 marks at the scholarship examination. However,Clause 13.1 does not refer to any special circumstances that shouldbe taken into consideration in exceeding the maximum number ofstudents in a class. It is thus clear that the 40 student limit in eachclass has been observed in the breach.
It is common ground that the 1st petitioner was endeavouring toadmit the 2nd petitioner to Dharmashoka Vidyalaya since mid 2001.At that time the 2nd petitioner was studying in Grade 5 and the basisfor such admission was the transfer of the mother, the 1st petitioner,from Puttalam to Ambalangoda. In this kind of a situation, the 1strespondent should have applied the guide-lines enumerated inClause 13 of the Circular No. 2001/15.
Clause 13 of the said Circular dated 29.05.2001, provides for thefollowing:
"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 categoriesas the 1 st petitioner was transferred and at the same time the 1 stpetitioner shifted her permanent residence from Puttalam toAmbalangoda. The 1 st and the 2nd respondents could have, thusconsidered the admission of the 2nd petitioner on the basis ofClause 13 of Circular No. 2001/15 to Grade 5.
The 1st petitioner was compelled to work in Puttalam,considered an uncongenial area as an administrativerequirement in the service. She has served more than double
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the required period of 5 years. The 2nd petitioner, being the child,had to remain with the mother and receive his education in the samearea, nearly 200 kilometers away from his native place. When themother received the benefit of a transfer to her native place aftermore than a decade, it is only reasonable that the child should alsoreceive the benefit of obtaining a school in the same area. Clause 13vests the authorities with ample power to grant such benefits to thechild. Instead of looking at the situation in a realistic and humaneway, they have unreasonably refrained from acting in terms ofClause 13.
The significance of Clause 16 of the Circular, which is referred toearlier, could be seen with reference to section 37(2) of theEducation Ordinance, No. 31 of 1939. This section refers to thepowers conferred to the Minister to make Regulations for any matterreferred under that section. The items under reference include thecompulsive need for a child between the ages of 5 to 16 to attendschool, and thus it reads as follows:
"(s) requiring, subject to such exemptions andqualifications as may be contained in such regulations,the parent of any child not less than five and not morethan sixteen years of age residing within such area, tocause such child to attend a school unless he has madeadequate and suitable provision for the education of suchchild…."
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 to removeunfairness and arbitrariness. It profoundly forbids actions, whichdeny equality and thereby becomes discriminative. The hallmark ofthe concept of equality is to ensure that fairness is meted out. Article12(1) of the Constitution, which governs the principles of equality,
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Karunathilaka and another v The Principal G/Dharmasoka Maha Vidyalaya and others
(Dr. SNrani Bandaranayake.J.)353
approves actions which has a reasonable basis for the decisionand this Court has not been hesitant to accept those as purelyvalid decisions.
However, situations such as the instant case under reviewcannot be applauded, as the question in issue itself indicatesclearly, that the refusal to admit the child to the school was noton a reasonable basis, but is a decision that rests onarbitrariness. At the time the 1st petitioner was transferred fromPuttalam to Ambalangoda, the authorities should have acted interms of Clauses 13 and 16 of the said Circular. To reiterate;Clause 13 enumerates a parents transfer and/or the change ofresidence as the basis for filling up vacancies in the Grades 2 to11, excluding Grade 6, whereas Clause 16 stipulates amandatory duty on the Educational authorities to allocate analternative school for a child who has been studying in a schoolwhich has classes only up to Grade 5.
Considering the circumstances of this case, the followingpoints are not in dispute; the 1st petitioner served in anuncongenial area for 11 years; she obtained a transfer toDharmashoka Vidyalaya in June 2001, her present residence isa mere 500 meters away from the said school, her younger sonwas admitted to year 1 of Dharmasoka Vidyalaya in March2002, the 2nd petitioner obtained 139 marks at the Grade 5scholarship examination, he was attached to a school which hasclasses only up to Grade 5 and since January 2002, he iswithout a school.
It was Joseph Addison, in "The Spectator", who referred tothe value of Education, in the following words:
"Education is a companion which no misfortune candepress, no crime can destroy, no enemy canalienate, no despotism can enslave. At home a friend,abroad an introduction, in solitude a solace, and insociety an ornament. It chastens vice, it guides virtue,it gives at once, grace and government to genius.
Without it what is man? a splendid slave, a reasoningsavage."
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The 2nd petitioner has been denied his cherishedcompanion of education and compelled to languish at homewhilst, the 1st petitioner, his mother teaches other children inthe school located within 500 meters from his home. This wasdue to unreasonableness and arbitrariness in executive andadministrative action in the failure to take necessary action interms of Clauses 13 and 16 of Circular No. 2001/15, at theappropriate stage.
For the aforementioned reasons, I hold that the 2ndpetitioner's fundamental right guaranteed under Article 12(1)has been infringed by the State. I have made the Stateresponsible, as the liability of this infringement cannot beattributed to any single officer of the Ministry of Education. The2nd respondent is directed to make necessary arrangementsfor the 2nd petitioner to be admitted to the Grade 6 of theG/Dharmashoka Maha Vidyalaya, Ambalangoda, forthwith.The State is directed to pay a sum of Rs. 25,000/- to the 2ndpetitioner as compensation and costs, for being deprived offormal education at a vital stage in his life. This amount is tobe deposited, within a month from today, in a "Hapan"Childrens' Savings Account at the National Savings Bank,Ambalangoda Branch in the name of the 2nd petitioner and the1st petitioner as the guardian for such account.
SARATH SILVA, C.J. – I agree.
YAPA, J.- I agree.
Application allowed.
