031-SLLR-SLLR-2003-1-R.-I.-K.-DE-SILVA-v.-THE-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf
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R.I.K. de Silva v The University Grants
Commission and others (S. N. Silva. CJ.)
261
R.I.K. DE SILVA
v.THE UNIVERSITY GRANTS COMMISSIONAND OTHERS
SUPREME COURTS.N. SILVA, C.J:1EDUSSURIYA, J„ ANDYAPA, J.
SC (FR) APPLICATION No. 642/20029 SEPTEMBER, 2002.
Fundamental Rights – Request of student selected to Arts Faculty for a mutu-al transfer to the Law Faculty of the University – Discriminatory and unlawfulrejection of the request – Non compliance with the rules for filling vacancies -Article 12(1) of the Constitution.
The petitioner was a Colombo District candidate at the G.C.E. (A Level)Examination. She obtained two “A”s and two “B”s at that examination with a“Z” score of 1.6517 but failed to secure admission to the Law Faculty butgained admission to the Arts Faculty of the University of Colombo. However,she applied for a mutual transfer to the Law Faculty with a candidate who hadbeen admitted to the Law Faculty who was agreeable to join the Arts Faculty.This application was recommended by the Deans of the Faculties of Law andArts. However, the appropriate authority, the 1st respondent University GrantsCommission (‘The UGC’’) rejected the petitioner’s application.
Event though the UGC rejected the petitioner’s application it permitted a stu-dent who had been admitted to the Arts Faculty who had a lower “Z” score thanthe petitioner to be admitted to the Law Faculty on the ground that the studenthad excelled in the sport “kabadi” which allegedly permitted her to be so admit-ted to the Law Faculty according to the conditions for admission. The UGCalso permitted the student who had agreed to a transfer from the Law Facultyto the Arts Faculty to join the Arts Faculty without much ado.
At the time the petitioner’s application to join the Law Faculty was rejected,there were several vacancies in the Law Faculty due to the fact that out of thetotal number of students who had been admitted to that Faculty some hadfailed to register.
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Held:
The rejection of the petitioner’s application for a transfer to the LawFaculty was discriminatory and constitutes an infringement of herrights under Article 12(1) of the Constitution, particularly for the rea-son that the request of the student who applied for a transfer from theLaw Faculty to the Arts Faculty was allowed.
The ground on which a student with a lower “Z’ score than the peti-tioner was admitted to the Law Faculty, namely, that that the studentexcelled in “Kabadi” did not provide a sufficient guideline for suchadmission. The guideline was vague and left an absolute discretion inthe hands of the UGC. In any event admission of students on specialconsideration should be permitted if at all at the commencement ofthe admission process.
The denial of the petitioner’s application for a transfer to the LawFaculty where there were vacancies was contrary to the conditionsapplicable to the filling of vacancies.
APPLICATION for relief for infringement of fundamental rights.
D.S. Wijesinghe, P.C. with Dhammika Dharmadasa for petitioner
R.K.W. Goonesekera with S. Hewamanna for the 1st and 2nd respondents
U. Egalahewa, State Counsel for 3rd and 4th respondents.
Cur.ad.vult.
January 30, 2003
SARATH N. SILVA, C.J.
The Petitioner has been granted leave to proceed in respectof the alleged infringement of Article 12(1) of the Constitution. Shesat for the G.C.E. (A Level) examination in the year 2001 andobtained grades of two A’s and two B’s with an “Z” score 1.6517.She sought admission to the Faculty of Law, but being a candidatefrom the Colombo District failed to secure admission, failling short
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by a few marks. Instead, she gained admission to the Faculty ofArts in the University of Colombo.
The Petitioner subsequently learnt that there were vacanciesin the Faculty of Law and that a student in that Faculty wanted tojoin the Faculty of Arts. On the basis of that information she wroteletter dated 17.10.2002 (the original of which has been producedmarked 3R2) to the 4th Respondent being the Dean, Faculty ofArts. The letter refers to the matters stated above with regard tovacancies and concludes with the following sentences.
“In the circumstances I am willing to exchange place with thisstudent. I am very keen on getting a degree in law as it is mychosen career. Therefore I kindly request you to consider mycase sympathetically and release me to do the law degree.”
From the endorsement appearing on the letter and the affi-davit filed in Court, it is clear that this request was supported by theDean, Faculty of Law and the Dean, Faculty of Arts being the 3rdand 4th Respondents. The Dean, Faculty of Law has stated in hisaffidavit as follows:
“I sent the letter (being the request of the Petitioner) with anendorsement to the following effect, that I learnt that namesof 14 students had been sent for registration but only 9 haveso far registered, that time was running out with regard to thestudents’ attendance requirement, and that we have permit-ted mutual transfer in the past, if I remember correct. I alsorequested the Additional Secretary (Admissions of theUniversity Grants Commission – the 1st Respondent)whether he could consider the Petitioner’s appeal favourablyat his earliest.”
After the Petitioner’s request supported by the Deans of therespective Faculties was sent to the University Grants Commission(UGC), letter dated 22.10.2002 (produced marked X9 and 3R5)was sent by the Commission to the Dean, Faculty of Law statingthat another student already registered with the Faculty of Artsshould be admitted to the Faculty of Law. This student is also onethat sat for the same G.C.E. (A Level) examination as the Petitionerfrom the Colombo District, but secured a ‘Z’ score lower than thePetitioner. The Petitioner’s ‘Z’ score was 1.6517, as noted above
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and the student whose admission was ordered by the UGC by X9had an ‘Z’ score of only 1.6109. The admission was ordered by theUGC not on the basis of the performance at the G.C.E. (A Level)examination and the respective marks that had been secured, buton the basis that the latter student had done well in the sport of“Kabadi”. The Dean, Faculty Of Law has referred this matter in hisaffidavit as follows:
“I was compelled to admit a student from the Faculty of Artson the basis that the said student had excelled in the sport“Kabadi”. It is also observed that the ‘Z’ score of this studentis 1.6109 which is lower than that of the Petitioner. I annexherewith a copy of the letter marked 3R5.”
The request of the Petitioner was refused by the UGC by let-ter dated 5.11.2002 (X13). It appears that the student who was reg-istered in the Faculty of Law and who sought a transfer to theFaculty of Arts had that request granted without much ado.According to the affidavit of the Dean, Faculty of Arts that student’srequest was considered at the 176th Faculty Board meeting andthe student was allowed to register in the Faculty of Arts in October2002.
It is in this context that the Petitioner has alleged an infringe-ment of her fundamental right to equality guaranteed by Article12(1) of the Constitution, on the part of the Respondents. ThePetitioner relies mainly on two grounds to establish her allegationof unequal treatment –
that a student similarly circumstanced having sat forthe same examination from the same District and reg-istered in the same Faculty of Arts has been permittedto register in the Faculty of Law although she had alower ‘Z’ score.
that a student registered in the Faculty of Law has beenpermitted to transfer to the Faculty of Arts although shehas been denied an opportunity of her request beingconsidered on the basis of any applicable criteria.
The UGC has strenuously resisted the grant of any relief tothe Petitioner although the Dean, Faculty of Law has stated in his
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affidavit that there is yet a vacancy in that Faculty. In the circum-stances it is necessary to examine the matter of admission further.
The intake to the Faculty of Law of the University of Colombohas been fixed at 200 students for the year 2002/2003. By docu-ment X11 the UGC decided on the allocation of places in respect ofthe total intake of 200 students. 79 places were allocated on the allisland merit quota and 121 on the district quota, making a total of200. On that basis the cut off point in the ‘Z’ score for each Districtwas notified by XII. It is clear that the UGC did not make any reser-vation for special admissions, including for students who haveexcelled in fields other that studies, as provided in Part Two of theHandbook issued by the UGC in respect of admissions (R1). Byletter dated 18.09.2002 the Deputy Registrar Examinations of theUniversity of Colombo, informed the UGC that there are 15 vacan-cies in the Faculty of Law resulting from selected students failing toseek registration. This letter produced as X4 bears the endorse-ment “very urgent’ and requests that immediate action be taken tofill these vacancies. The sense of urgency on the part of theUniversity authorities is understandable, since the academic pro-gramme in the Faculty of Law was due to commence on
In response, the UGC sent the letter dated 10.10.2002giving the names of 14 students to fill the vacancies. The explana-tion of the UGC is that one place from the vacancies was reservedfor a special admission.
The UGC claims that the action taken to fill the vacancies isstrictly in accordance with the provisions in the Handbook (R1). Inview of the firm stand taken by the UGC in this regard, it is neces-sary to examine the claim carefully in the light of the relevant pro-visions of the Handbook. Part II of the Handbook which deals withspecial admissions in paragraph 18(b) states as follows:
“(b) Students who have excelled in fields other than studies:0.5% of the places in each course of study has beenreserved for candidates who have achievements at nationalor international levels in such fields as sports, cultural activi-ties (e.g. dancing, painting, music and literature), scoutingand cadetting, social work and other extra curricular activitiesin and after 1998, but have failed to gain admission under thenormal intake because of the short fall of a few marks”
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It has to be observed at the outset that the criteria set out inthis provision is vague and it purports to reserve a power to theUGC to make selections at its sole discretion. The provision doesnot contain adequate guidelines to ensure that the power reservedby the UGC to itself would not be exercised arbitrarily. The UGChas selected a candidate who is from the same District as thePetitioner but who has got a lower ‘Z’ score on the basis of her per-formance in the sport of ‘Kabadi”. The level of her performance inthe sport is not disclosed. Whilst the UGC may be under theimpression that skill in the sport of “Kabadi” is a useful attribute tothe study of law, it has to be noted that such a course of action isinconsistent with the equal protection of the law guaranteed toevery person by Article 12(1) of the Constitution. If any reservationfor a special admission is to be made, that should be done on thebasis of rational criteria, related to the overall objective of selectingthe most competent student with the highest aptitude for the par-ticular course of study. In that respect the provision relied on by theUGC falls far short of the required standard. It’s application, seenfrom the facts of this case, makes it worse and demonstrates thedanger in reserving to an authority discretionary power withoutadequate guidelines as to its exercise. I do not want to go into thismatter further since the student selected from her performance in“Kabadi” is not a party to this application. From the Petitioner’s per-spective, she has been plainly denied the equal protection of thelaw guaranteed to her by Article 12(1) of the Constitution. Her appli-cation for a transfer to the Faculty of Law which had been support-ed by the Deans of the respective Faculties evoked a negativeresponse from the UGC. Whereas the UGC has permitted a sim-ilar transfer, which has not been supported by the Deans of therespective Faculties, according to the material available, in respectof a student with a lower “Z” score on a ground that cannot be sup-ported.
When one delves into the matter further, it is seen that aplace for special admission should, if at all, be “reserved” at thecommencement of the admission process. In this instance, theUGC did not make a reservation for any special admission, butallocated all 200 places on the district and the all island merit quo-tas as seen in the document XII. The UGC has purported to order
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the registration of a student as a special admission in the processof filling of vacancies that resulted from non-registration of select-ed students. Filling of vacancies is dealt with in paragraph 12 ofPart I of the Handbook whereas reservation for special admissionsis provided for in paragraph 18 in Part II of the Handbook. Since theUGC has strenuously contended that the filling of vacancies wasordered strictly in accordance with the relevant provisions, I wouldreproduce the entirely of paragraph 12 –
Vacancies may arise as a result of non-registration of stu-dents selected under the normal intake. These are filled on the fol-lowing basis:
Vacancies due to non-registration of students under themerit quota will be filled on an all island merit basis.
Vacancies due to non-registration of students selectedunder the district quota will be filled on a district meritbasis. Vacancies in a particular district will be filled withstudents from the same district.
When an additional number of students have beenselected over and above the quota due to clustering ofstudents at the same mark point, such additional numberwill be deducted from the number of vacancies and onlythe balance will be filled.
Vacancies in any course of study will not be filled after thecommencement of the academic programme of the uni-versity concerned.
In terms of 9.4 above candidates once registered in acourse of study on the basis of the results of the GCE(A/L) Examination held in 2001 should accept the courseof study to which he/she would be elevated according tothe higher preference indicated by him/her in the applica-tion for admission, when filling vacancies.
On a plain reading it is seen that no place can be reservedfor a special admission in the process of filling of vacancies. I amcompelled to note that the UGC has conveniently skipped fromparagraph 12 in Part I to paragraph 18(b) in Part II of the Handbookto order the registration of the student with a lower “2” score than
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the Petitioner on the basis of her performance in sport. Thus thereservation of one place for a special admission in the process offilling vacancies is clearly illegal.
To proceed further on the matter of filling of vacancies, asnoted above, the Deputy Registrar Examinations of the Universityof Colombo informed the UGC of 15 vacancies in the Faculty ofLaw by letter dated 18.09.2002 (X4) which was marked “veryurgent”. The urgency lay in the fact that the academic programmeof the Faculty of Law was due to commence on 07.10.2002.Paragraph 12(d) of the Handbook, reproduced above states clear-ly that vacancies will not be filled after the commencement of theacademic programme of the University. The UGC violated its ownrule by sending the 14 names by letter dated 10.10.2002, after theacademic programme commenced on 07.10.2002. When 5 stu-dents of the 14 failed to register, the UGC sent another list on
(X7) and yet another list on 21.11.2002 (X8). This is inaddition to the special admission on the performance in sportordered by letter dated 22.10.2002 (X9). All these lists have beensent in contravention of the provisions of paragraph 12(d) referredabove. Therefore the strenuous claim of the UGC that it has actedstrictly in accordance with the provisions of the Handbook in fillingof vacancies, ends up in smoke when subjected to a close scrutiny.
A more alarming fact that emerges from the foregoingaccount of the process of admission is that 15 students out of the200 (7.5%) originally selected dropped out at the stage of registra-tion itself. There are further drop outs as the academic programmegoes on. This demonstrates the inherent weakness of a selectionprocess based solely on statistics churned out by computers. Thereis a live question whether such a process by itself will produce stu-dents with the required aptitude and the real capacity to engage inundergraduates studies in a given field. This question addresses amatter of policy, formulation which is outside the purview of thejurisdiction of this Court.
Reverting specially to the facts of this case, the action of theUGC is best epitomized by the following paragraph in the affidavitfiled by the Dean, Faculty of Law.
13. “I further state that if the action of the 1st and 2ndRespondents (the UGC and its Chairman) are transpar-
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ent, complaints of this nature could have been minimized.
I am of the view that the University Grants Commissionshould publish openly every year its admission policy, cri-teria adopted to select candidates, each candidate’smarks and ranking, each one’s choice of courses/disci-plines, their choice of university and the selection madeby the University Grants Commission. Transparency willnot only make candidates to trust the institution and thedecision making process but also cause the institution tobe responsible and accountable.”
The answer of the UGC is that the University of Colomboshould be the proper party in the case and not the Deans of therespective faculties. I find it difficult to comprehend this objection.The Dean is the administrative head of the Faculty. The request ofthe Petitioner for a transfer to the Faculty of Law was addressed tothe Dean, Faculty of Arts, who submitted it to the Dean, Faculty ofLaw who in turn recommended it to the UGC. By X13 addressedto the Dean, Faculty of Law the UGC refused that request. The spe-cial admission on the basis of performance in sport, regardingwhich much has been said above, was notified by the UGC to theDean, Faculty of Law. When there is an alleged infringement of afundamental right this Court has to examine the process of theimpugned executive or administrative action. In that respect theproper parties involved in the impugned administrative process arebefore Court and I accordingly overrule the ground of objection.
For the reasons stated above, I hold that there has been aninfringement of the fundamental right of the Petitioner guaranteedby Article 12(1) of the Constitution resulting from action on the partof the University Grants Commission. I allow to the Petitioner therelief prayed for in prayers (B) and (C) of the prayer to the petition.
The 1st Respondent will pay a sum of Rs. 15,000/- as coststo the Petitioner.
EDUSSURIYA, J.-I agree.
YAPA, J.-I agree.
Relief granted.