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Rashid v Ranjitha Senaratne, Minister of Lands and others
(Fernando, J.)
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PROF. J. W. WICKRAMASINGHEvTHE UNIVERSITY OF SRI JAYAWARDENAPURA AND OTHERSSUPREME COURTBANDARANAYAKE, J.
EDUSSURIYA, J. ANDDE SILVA, J.
SC (FR) APPLICATION NO 587/2002AUGUST 5, SEPTEMBER 3AND DECEMBER 5, 2003
Fundamental Rights – Denial of the right to spend sabbatical leave as allowedby the University Grants Commission – Arbitrary decision of the University -Article 12 (1) of the Constitution.
The petitioner who was the Vice chancellor of the 1st respondent univer-sity was due to attain 64 years on 16.3.2003 and according to a strict inter-pretation of circular No. 408 he would not be granted sabbatical leave underthat circular. Howeverthe 2nd respondent, the University Grants Commission(UGC) allowed him 2 years sabbatical leave from 01.06.2002 to 31.05.2004 on
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the recommendation of the University under special circumstances, namelythat he would relinquish his duties as vice Chancellor on 31.05.2002. Later onthe U.G.C. gave instructions to Universities that in future to strictly comply withcircular 408 and explained to the University of Sri Jayawardenapura that thoseinstructions did not affect the petitioner as leave had been allowed in specialcircumstances. Notwithstanding this clarification the University insisted thatthe petitioner should resume duties on 16.03.2003. Even at that time therewere University dons who were on sabbatical leave after reaching the age of64 years.
Held:
In view of leave granted to him the petitioner had a legitimate expec-tation of being on leave up to 31.05.2004.
The instructions given by the University that the petitioner resumesduties by .16.03. 2003 were arbitrary and violative of Article 12 (1) of theConstitution.
Per Bandaranayake, J.
“Equality and arbitrariness are sworn enemies. One belongs to the Rule ofLaw….while the other to the whim and caprice of an absolute monarch"
Case referred to:
1. E.P. Royappa v State of Tamil Nadu – AIR 1974 Sc 555APPLICATION for relief for infringement of fundamental rights.
Romesh de Silva P.C., with Sugath Caldera for petitioner.
A.S.M. Perera, P.C. with Prasanna Soyza for 1st respondent.
Rajive Goonatilake, State Counsel for 2nd respondent.
Cur.Adv.vult.
January 29, 2004
SHIRANI BANDARANAYAKE, J.The petitioner, who had held the positions of Assistant Lecturer,Lecturer, Senior Lecturer, Associate Professor and later the posi-tion of Vice Chancellor of the 1st Respondent University, com-plained that the decision of the i st respondent university not to per-mit the petitioner two years leave from 01.06.2002 to 31.05.2004out of his accumulated sabbatical leave is a violation of his funda-
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mental rights guaranteed in terms of articles 12(1), 12(2) and14(1)gof the Constitution.
Leave to proceed was granted by this Court for the allegedinfringement of Article 12(1) of the Constitution.
The petitioner's complaint, albeit brief, is as follows:
The petitioner became entitled for his sabbatical leave in 1994(P3) and had decided to accumulate such leave. He conveyed thisdecision to the 1st respondent which was accepted by letter dated27.05.1994 (P4). Having completed a further seven years by 2001,the petitioner once again became entitled to sabbatical leave in2001 and by that year was entitled to two years sabbatical leavewith full pay. Thereafter the petitioner requested the 1 st respondentto grant two years sabbatical leave with full pay to which, accord-ing to the petitioner the University had agreed and promised thepetitioner that such leave would be granted to him. In or about thisperiod, the petitioner became the Vice Chancellor of the 1strespondent University. Due to this reason he requested that thesaid sabbatical leave entitlement be deferred until 01.06.2002.The petitioner submitted that the 1st and 2nd respondents, with thefull knowledge that the petitioner would be completing 64 years ofage in the month of March 2002, granted the petitioner two yearssabbatical leave with full pay with effect from 01st June 2002.
The petitioner therefore claims that, he had a legitimate expec-tation to have two years of sabbatical leave with full pay from
till 31.05.2004. Accordingly, after relinquishing hisduties as the Vice Chancellor of the 1 st respondent University, thepetitioner commenced his sabbatical leave in or about 01.06.2002.He had made arrangements to spend his sabbatical leave whicharrangement, included accepting foreign assignments.
The petitioner submitted that on 02.09.2002, he was informedby telephone that the 1 st respondent had decided that the petition-er should resume duties on 16.03.2003. According to the petitionerhe had no communication whatsoever that his sabbatical leavehas been reduced and that he should resume duties earlier thanexpected. Immediately after receiving this intimation, the petitionerwrote to the 3rd respondent (P11) querying the changes the 1strespondent had made to his already approved sabbatical leave.
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The 1st respondent had replied informing the petitioner that a com-munique had been sent to the petitioner in July 2002 (P12 andP13).
The petitioner contended that, since he had commenced hissabbatical leave in June 2002, he had not visited his Departmentat the 1st respondent University. Therefore he takes up the positionthat there was no possibility of his receiving the letter dated so
(P13),which had been sent to the Department ofEconomics of the 1st respondent University, further the petitionercontended that the notification sent to him informing that he shouldresume duties on 16.03.2002, had been sent only after he appliedfor his overseas leave.
The petitioner submitted that there have been others who haveenjoyed their sabbatical leave and who are still away from theirrespective Universities on sabbatical leave at the time of the filingof this application notwithstanding the fact that they had complet-ed their 64th birthday. The petitioner has named some University 60Dons who have availed themselves of their sabbatical leave irre-spective of the fact that they are over 64 years of age.
The petitioner therefore complained that the action taken by the1st respondent University to revoke the decision to grant sabbati-cal leave from 16.03.2003 to 31.05.2004 is malicious and arbitrary.
The Vice Chancellor of the 1st respondent University as at April2003, and the 2nd respondent filed their objections.
The Vice Chancellor of the 1st respondent University concededthat the petitioner had qualified for sabbatical leave and could notavail himself of such leave as he was the Vice Chancellor at the 7btime concerned. In terms of P2 he submitted that the 1st respon-dent had no authority to approve sabbatical leave to the petitioner,but admitted that the Council of the 1st respondent Universityrequested the 2nd respondent to consider the petitioner's applica-tion for sabbatical leave beyond 16.03.2002 as he was completinghis 64th year on the said date. Further it was submitted that the 1stand 2nd respondents had no authority to deviate from the condi-tions laid down in the University Grants Commission Circular No.
408 dated 20.10.1989, which deals with sabbatical leave toTeachers and Officers (P2). The Vice Chancellor of the 1st respon- so
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dent University submitted that the Council of the 1st respondentUniversity at its 243rd meeting held on 13.06.2002 decided to per-mit the petitioner to avail himself of his sabbatical leave, subject tothe condition that the petitioner reports back to work after he com-pletes his 64th year (1R4, 1R5 and 1R5A). Further he had submit-ted that the irregular procedure of granting sabbatical leave to per-sons after they reached their 64th birthday was corrected by the2nd respondent at their 603rd meeting .and communicated by let-ter dated 22.05.2002 (1R6) and the previous practice of grantingsabbatical leave to randomly identified University teachers was 90cancelled by the 2nd respondent as indicated in the said letter,which was sent to all Universities, Campuses and Institutes.
Therefore the 1st respondent claims that it had acted on theadvice of the 2nd respondent and therefore denied any violation ofthe petitioner's fundamental rights guaranteed in terms of Article12(1) of the constitution.
In terms of clause 5(iii) of the University Grants CommissionCircular No. 408 dated 20.10.1984 (P2), the categories of staffdefined under clause 2 of the said circular would be entitled tosabbatical leave of one year's duration with pay, after 7 years of 100service. Clause 8 of the said Circular specifies that periods of sab-batical leave and/or the periods of service for sabbatical leave enti-tlement may be accumulated. Clause 5(b) of the said Circular alsostates that,
"Sabbatical leave should terminate and theTeacher/Officer shall resume duties before the 64thbirthday in the case of Teachers and before tfie 54thbirthday in the case of others.”
On the basis of the application made by the petitioner to the 1strespondent University dated 14.02.2001 (1R2) the said university 110forwarded such request along with the recommendation of theCouncil of the said University to the 2nd respondent for approval.Such recommendations of the 1 st respondent was to the effect thatthe requested leave should be granted to the petitioner and was inthe following terms:
“Ss)®8°eD ©eomaeciJ <§<3Q® caezsa £>jg caaeza caeoaD, £0250028 ©eoaOa8ca e& Qa>g8. 8h)@Q°«) ©eazaa 2001.03.0183 caOa8@za SDag
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In response to this communique' the 2nd respondent, by letterdated 04.06.2001, informed the 1st respondent of its decisionregarding the request made by the petitioner in the following terms:
“Sabbatical leave – Prof. J.W. Wickramasinahe this has refer-ence to your letter dated 15th March 2001, on the above sub- 130ject.
The commission at its 588th meeting held on 30th April, 2001has approved two years of sabbatical leave to Prof. J.W. wick-ramasinghe, Vice Chancellor, University of Sri Jayawardana-pura with effect from 01.06.2002 on special circumstanceson relinquishing his duties as Vice Chancellor on
by which time he would have reached the ageof 63 years, notwithstanding the fact that in terms of para5(b) of Commission Circular No. 408, sabbatical leaveshould terminate and the person concerned resume uoduties before the 64th year (emphasis added).”
Since issuing the aforementioned communique, the 2ndrespondent by letter dated 22.05.2002, intimated to ViceChancellors of Universities, Rectors of campuses and Directors ofInstitutes, a decision taken by the 2nd respondent pertaining tosabbatical leave to teachers, which was in the following terms(2R5):
“Sabbatical leave to teachers
Your kind attention is drawn to paragraph 5(b) of CommissionCircular No. 408 dated 20th October 1989 issued in respect of isothe above matter.
The Commission noted that certain Higher EducationalInstitutions seek approval of the University Grants
(2R1)
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Commission to allow teachers/officers to avail themselves ofsabbatical leave after their 64th/54th birthday, as the case maybe, deviating from the above provisions of CommissionCircular No. 408. The Commission therefore at its 603rd meet-ing decided to inform all Higher Educational Institutions thatthey should strictly adhere to the provisions of para 5(b) of theabove Circular and that requests of this nature will not be 160entertained by the University Grants Commission in future(emphasis added).”
It is of importance to note that the aforementioned letter of the2nd respondent was dated 22.05.2002 and it specifically referred tothe fact that the said decision would be applicable only in the future.
As referred to earlier, the petitioner's request was approved by the2nd respondent at their 588th meeting held on 30.04.2001 andsuch decision was informed to the 1st respondent by letter dated04.06.2001 (2R3). Such approval was given after considering theconditions stipulated in clause 5(b) of the Circular No. 408 dated 17020.10.1989 and special circumstances the applicant had referred toin his application.
Notwithstanding the clear instructions given by the 2nd respon-dent, the 1st respondent decided to inquire from the 2nd respon-dent by letter dated 03.07.2002 (2R6) whether the decision con-veyed by the 2nd respondent with regard to the petitioner’s leavewould be valid any longer on the basis of the decision taken by the2nd respondent conveyed to the 1st respondent by letter dated
There is no material placed before this Court by the 1strespondent, showing the reasons for the decision to place the isoalready approved request for sabbatical leave of the petitioner,before the Council of the 1st respondent University and later com-municating such decision to the 2nd respondent and queryingwhether its decision would still be valid.
This action of the 1st respondent is clearly without any basis.There was no requirement or a necessity for the 1st respondent totake any steps with regard to the approval given to the petitioner forhim to be away on sabbatical leave. After writing to the 2nd respon-dent querying the leave already granted to the petitioner, the 1strespondent did not consider it necessary to await a reply from the 1902nd respondent. Within a period of 3 weeks the 3rd respondent
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By virtue of this letter, the 1st respondent effectively rescindedthe letter dated 20.08.2001, which intimated the decision of the2nd respondent to the petitioner that he could utilise his 2 yearsof sabbatical leave with effect from 01.06.2002. While the 1strespondent had communicated its decision to the petitioner, the2nd respondent, by letter dated .10.10.2002, informed the 1st 210respondent that as the approval for the petitioner’s sabbaticalleave was granted before the amendment letter which was issuedon 22.05.2002, the initial decision pertaining to the petitionerwould still be valid.
In the aforementioned circumstances, it is surprising to note thatthe 1st respondent notwithstanding the clear instructions given bythe 2nd respondent that their decision will be applicable only tofuture applicants, decided to inform the petitioner, without evenawaiting a reply to their letter by which they sought a clarification.
It is common ground that sabbatical leave to Teachers and 220Officers of Universities is governed by UGC Circular No. 408(2R4). It is also common ground that when by letter dated15.03.2001 the 1st respondent sought approval of the 2nd respon-dent for two years sabbatical leave for the petitioner (2R1), the 2ndrespondent had approved it on 30.04.2001 and had conveyed thesaid decision to the 1st respondent on 04.06.2001. The 2ndrespondent by letter dated 10.10.2002, replied the 1st respondentstating that ‘the petitioner’s sabbatical leave continued to be
wrote to the petitioner informing him that he has to report for workon 16.03.2003. This letter dated 24.07.2002 was in the followingterms (1R5):
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approved as the decision regarding his sabbatical leave had beentaken prior to the communication dated 22.05.2002’ (2R7).230
It is therefore abundantly clear that the improper decision con-veyed to the petitioner by letter dated 24.07.2002 (1R5) restrictingthe petitioner’s sabbatical leave,was taken by the 1 st respondent,not only arbitrarily, but also without any basis.
Considering the totality of the circumstances of this application,it is clear that the petitioner belonged to a group where sabbaticalleave had been given to be enjoyed beyond the age of 64 years.Such leave was granted to the petitioner not by the 1st respondentUniversity, but by the 2nd respondent Commission, which is theultimate authority for such purpose. After all sabbatical leave is 240granted under, and governed by the UGC Circular No. 408 dated20.10.1989 (as amended). In such circumstance, the 1st respon-dent had no authority to issue the letter dated 24.02.2002 andthereby had clearly acted arbitrarily.
Such action means that the decision has been influenced byextraneous consideration, which the relevant authority should nothave considered. When an act is arbitrary it is implicit that suchaction is unequal and therefore violative of Article 12(1) of theConstitution which guarantees equality and equal protection of thelaw. Commenting on the concept of equal protection of laws and 250constitutional guarantee against arbitrariness Bhagwati, J., in E.P.Royappa v State of Tamil NadiP) stated that,
“Equally is a dynamic concept with many aspects anddimensions and it cannot be ‘cribbed, cabined and con-fined’ within traditional and doctrinate limits. From a pos-itivistic point of view equality is antithetic to arbitrariness.
In fact equality and arbitrariness are sworn enemies: one
belongs to the rule of law in a republic while the other to
the whim and caprice of an absolute monarch. Where an
act is arbitrary, it is implicit in it that it is unequal both 260
according to political logic and constitutional law and
therefore it is violative of Article 14…”
After the conclusion of the hearing and after the petitioner hadfiled his written submissions, the 1st respondent had filed a motiondated 20.10.2003. By that motion the 1st respondent stated that,
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the 1st respondent University is in agreement to grant the followingreliefs to the petitioner, namely, to set aside the decision to revokethe original decision and to grant sabbatical leave to the petitionerwith full pay from 01st June 2002 till 31st May 2004.
The petitioner thereafter submitted that he did not wish to enter 270into a settlement on that basis with the 1st respondent, as he couldnot go abroad using his sabbatical leave due to the actions of therespondents and the reliefs suggested in the motion filed by the 1strespondent would not be of any use to him.
It is to be noted that the petitioner had to invoke the jurisdictionof this Court, in order to be on sabbatical leave and had to obtainan interim order so that he could enjoy his sabbaticl leave beyond
16.03.2003.
On a consideration of all the circumstances of this case, themotion filed by the 1st respondent is rejected and I declare that the 2801 st respondent University has violated the petitioner’s fundamentalrights guaranteed in terms of Article 12(1) of the Constitution. Thedecision of the 1st respondent University to revoke the orignal deci-sion to grant the petitioner sabbatical leave with full pay from
till 31.05.2004 is set aside and I direct the respondentsto permit the petitioner to be on sabbatical leave with full pay until
which is in compliance with the decision of the 2ndrespondent dated 10.10.2002 (2R7).
The 1 st respondent University is also directed to pay to the peti-tioner a sum of Rs. 25,000/- as compensation and costs. This 290amount to be paid within 3 months from today.
EDUSSURIYA, J.-I agree.
DE SILVA, J.-I agree.