004-SLLR-SLLR-2003-V-2-MAHANTHEGAMA-v.-THE-UNIVERSITY-OF-PERADENYIA-AND-OTHERS.pdf
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MAHANTHEGAMA
v
THE UNIVERSITY OF PERADENIYA AND OTHERS
SUPREME COURTFERNANDO, J.ISMAIL, J. ANDYAPA, J.
SC. NO. 540/2001 (FR)11TH MARCH, 2003
Fundamental Rights – Appointment in the University – Appointment by theUniversity Grants Commission (U.G.C.) on interview and selection by theUniversity – Application challenging the selection withdrawn due to misunder-standing induced by the Vice-Chancellor's failure to disclose all facts – UGCnot made party to the application – Power of the court to grant costs to the peti-tioner against the University – Constitution, Article 12(1).
The petitioner was an unsuccessful candidate at an interview for the selectionof Curator (Higher Grade) in the University of Peradeniya (The University). TheUniversity Grants Commission (The UGC) which was not made a party to theapplication was the appointing authority. The UGC had delegated to theUniversity the power to advertise the post and to make recommendations afterinterview.
The University recommended the appointment of the 27th respondent whichwas challenged by the petitioner on the ground that the 27th respondent didnot possess the requisite experience. Leave to proceed was granted but arestraining order which had been earlier granted against appointment was notextended. The correspondence between the UGC and the University showedthat the UGC initially insisted on re-advertising the post for want of requisiteexperience on the part of the 27th respondent.
By a letter dated 13.06.2002 the 2nd respondent (The Vice Chancellor) pro-vided to the UGC “evidence" of requisite experience on the part of the 27threspondent. But the Vice Chancellor did not inform the Senior State Counselof the existence of his letter dated 13.06.2002 with the result that neither thecourt nor the counsel were aware of it. In the result the petitioner’s counselwithdrew the application in the belief that the matter was still in issue betweenthe UGC and the University. Thereafter the UGC appointed the 27th respon-dent.
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Consequently, on a motion by the petitioner, the UGC was added as a party toascertain whether it was remiss in its duty to the court in the matter. After con-sideration, the UGC was discharged.
Held :
Although the petitioner was not entitled to substantial relief it was equitable toorder the University to pay the petitioner Rs.25,000/- as costs.
APPLICATION for relief for infringement of fundamental rights.
Manohara de Silva for petitioner
S. Barrie, State Counsel for 1 st and 2nd respondents.
J.C. Weliamuna for 27th respondent.
Gomin Dayasiri for University Grants Commission.
Cur.adv.vult
May, 27, 2003FERNANDO, J.
In the year 2001 there was a vacancy in the post of Curator 1(Higher Grade) in the University of Peradeniya, the 1st respondent.
It is common ground that the appointing authority was theUniversity Grants Commission (“the UGC”), which had delegated tothe 1st respondent the power of advertising that vacancy, inter-viewing applicants, and making recommendations. The post wasadvertised, one of the stipulated qualifications being eight yearsexperience in a supervisory capacity in a botanical garden or agri-cultural farm.
On 29.09.2001 the Council of the 1st respondent, having 10' considered the recommendations of the selection committee madeafter interviewing several applicants, recommended to the UGCthat the 27th respondent be appointed and that the 29th respon-dent be placed as a reserve.
On 05.10.2001 the petitioner, an unsuccessful applicant, filedthis application – to which the UGC was not made a party – alleg-
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ing that the 27th respondent did not have the required experience.When the application was supported on 26.10.2001 the 27threspondent moved for time to retain Counsel, and the matter waspostponed for 5.11.2001. An interim order was made, operative till
restraining the 2nd respondent from issuing a letter ofappointment to the 27th respondent. On 05.11.2001 leave to pro-ceed was granted but the interim order was not extended. TheCourt noted, however, that any appointment made was liable to bequashed if the petitioner ultimately succeeded. Senior StateCounsel then informed the Senior Assistant Registrar of the 1strespondent of the order made on 5.11.2001, and advised that theUGC be informed that there was no legal impediment to theappointment of the 27th respondent.
In the meantime the UGC sought clarification from officials ofthe 1st respondent as to whether the 27th respondent did have therequired period of supervisory experience. Not being satisfied onthat score, the UGC decided on 16.4.2002 to request the 2ndrespondent, the Vice-Chancellor of the 1st respondent, to re-adver-tise the post. The 2nd respondent by letter dated 17.4.2002 sub-mitted further material regarding the qualifications of the 27threspondent and again requested that he be appointed. By letterdated 8.5.2002 the UGC informed the 2nd respondent that theUGC, having considered that request on 30.4.2002, had reiteratedits previous decision as the 27th respondent did not have therequired experience.
By letter dated 13.06.2002 the 2nd respondent forwarded tothe UGC a copy of a letter from the Director-General of Agriculture“clarifying the services (of the 27th respondent) in a supervisorycapacity”, and again requested his appointment.
On 17.06.2002 when this application was taken up for hear-ing, Senior State Counsel who appeared for the 1st and 2ndrespondents, tendered a copy of the UGC’s letter dated
and the UGC’s decision referred to therein. Counselfor the petitioner thereupon stated, without any reservation, that thepetitioner did not wish to pursue this application. The Counsel whohad appeared for the 27th respondent on several previous dateswas not present. Accordingly, the Court dismissed the application.It appears that the 2nd respondent had not informed Senior State
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Counsel that despite the letter of 8.5.2002, he had again urged theUGC, on 13.6.2002, to appoint the 27th respondent. Neither Courtnor Counsel was aware of that letter on 17.06.2002.
By a motion dated 17.10.2002, the petitioner complained thatin view of the “undertaking” by the UGC (contained in its letterdated 8.5.2002) the petitioner had not pursued his application; that“in violation and in contempt of (that) undertaking the UGC (had)appointed the 27th respondent by letter dated 27.9.2002” withoutre-advertising the post; that the petitioner was thereby preventedfrom applying; and that the UGC had not responded to the peti-tioner’s request to stop the said appointment being given effect to.He prayed for suitable action “against the respondent” (presumablymeaning the UGC) for violation of the judgment of this Court. Hemade no allegation and sought no relief against the 1st and 2ndrespondents.
The question arose whether the UGC had in any wayattempted to induce this Court to believe that the post would be re-advertised, and to make an order in that belief, and had thereafteracted contrary to its own representation. Accordingly, the UGC wasadded as a respondent, and given an opportunity to state its case.Counsel on its behalf thereafter submitted the entirety of the rele-vant documents, and contended that the UGC had not given anyundertaking to Court on 17.6.2002 (or at any time before or after);that the UGC was not a party and was not bound by the proceed-ings and order of 17.6.2002; that the petitioner, the respondentsand their attorneys-at-law had not informed the UGC of the pro-ceedings and order of 17.06.2002; that after considering the 2ndrespondent’s letter of 13.6.2002 the UGC had decided on25.9.2002 to vary its previous decision and to appoint the 27threspondent; and that it was only after the 27th respondent hadbeen appointed on 27.9.2002 that the Registrar of the 1st respon-dent forwarded a copy of the order made on 17.06.2002.
Learned Counsel for the petitioner did not dispute the abovefacts. The UGC was not a party and gave no undertaking to thisCourt. There was no representation that the letter of 8.5.2002 con-tained an irrevocable decision, or constituted a settlement mutual-ly agreed upon. On the contrary, it was a decision which the UGCwas free to vary in the normal course, if justified by new material.
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There was no order restraining the appointment of the 27th respon-dent. It was the UGC which was the appointing authority, and if thepetitioner had wished to have the benefit of either an order againstthe UGC, or an undertaking by the UGC, enforceable by way ofcontempt proceedings or otherwise, he should not have given uphis claim for relief upon the mere production by the 1st and 2ndrespondents of the UGC’s letter of 8.5.2002, but should insteadhave insisted upon such an order or undertaking.100
The UGC must therefore be discharged.
The 2nd respondent’s conduct is open to criticism. By failingto inform his Counsel of his letter dated 13.6.2002, Counsel for thepetitioner was probably lulled into the belief that the 1st and 2ndrespondents had accepted the decision to re-advertise the post.
Had he informed the UGC of the order made on 17.6.2002, theUGC may well have hesitated to dispense with re-advertising.However, the principal reason for the predicament in which the peti-tioner now finds himself is the failure to insist on an appropriateundertaking or order before giving up his claims. It is unnecessary noto consider whether the petitioner should be given relief analogousto restitutio in integrum because he has not asked for it. In anyevent it is not equitable now to grant such relief because the peti-tioner took no steps to inform the UGC of the proceedings of17.6.2002; because the 27th respondent has given up otheremployment to take up the post of Curator; and because the peti-tioner was not the candidate placed second by the SelectionCommittee. Having regard to all the circumstances, I consider itequitable to order the 1st respondent to pay the petitioner a sum ofRs. 25,000/- as costs.120
ISMAIL, J.- I agree.
YAPA, J.- I agree.
Costs against the Universitygranted to petitioner.