RATHNAYAKE AND OTHERS v. UNIVERSITY GRANTS COMMISSION AND OTHERS

027-SLLR-SLLR-2008-V-2-RATHNAYAKE-AND-OTHERS-v.-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf


272Sri Lanka Law Reports[2008] 2 Sri L.R
RATHNAYAKE AND OTHERSv
UNIVERSITY GRANTS COMMISSION AND OTHERSCOURT OF APPEALSRIPAVAN, J.
SISIRA DE ABREW, J.
CA 1689/2006FEBRUARY 6, 8, 2007
Writ of certiorari – Quashing decision rejecting application for University admissionalready registered to follow a Course – Applicability of Rule 6.2 of the rule of theUniversity Grants Commission – Is there a last date for registration? – Decision
arbitrary or unreasonable – Rules must not be partial and unequal among studentsbelonging to the same class/category.
Rathnayake and Others v
CAUniversity Grants Commission and Others273
The petitioners sought to challenge the decision of the 1-3 respondents rejectingthe application for University admission. The petitioners were registered in July2006 to follow a Course of study (NDT) at the Institute of Technology of theUniversity of Moratuwa (ITUM) on the basis of the results of the examinations heldin 2005 (A' Level). As they obtained better results at the examination held in 2006,they submitted their applications seeking admision to Universities for the academicyear 2006/07,and before doing so they got their registrations at the ITUM cancelledin October 2006. The respondents refused to accept the applications on the basisthat, they had violated Rule 6.2 of the U.G.C.
It was contended by the respondents that, since the petitioners had not withdrawntheir registration of the ITUM within a period of 30 days from the last date for theregistration of the NDT course the applications have to be rejected.
Held:
According to Rule 6.2 a student who is already registered for a particularCourse of study at a Higher Educational Institute set up under the UniversitiesAct No.16 of 1978 could apply for admission to another course of study on thebasis of the results of the G.C.E. (A/L) examination held in a later year toanother course of study only if he/she had withdrawn his/her registration withina period of 30 days from the last date for registration.
The ITUM has not specified a last date for registration of students for the NDTcourse registration had been done on various dates – Rule 6.2 does notcontemplate 'last dates' it only specifies 'a last date'. The Rule does not statethat the student must withdraw his registration within a period of 30 daysfromthe last date of his registration.
The Rule in its application must not be partial and unequal among students whobelong to the same class or category.
Thus there is no violation of Rule 6.2.
The 1 st – 3rd respondents did not consider whether the petitioners had in factviolated Rule 6.2. The impugned decision of the 1-3 respondents is arbitraryand unreasonable.
APPLICATION for a Writ of Certiorari.
Cases referred to:
Nadeeka Hewage v UGC SC No. 627/2002 SCM 8.8.2003.
Fernando v University Grants Commission CA 2524/2004 CAM 24.4.2006.
Wheeler v Leicester City Council 1985 AC 1054 (HC).
Rex v Tynemouth District Council 1896 2 QB 219.
Regina v Birmingham Licensing Planning Committee 1972 QB 140.
Associated Provincial Picture House Ltd. v Wednesbury Corporation 1948 1 KB223d 229.
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Dulinda Weerasuriya with Amila Vithana for petitioners.
Kumar Arulananthan DSG for respondents.
February 22, 2007SISIRA DE ABREW, J.
This is an application for a writ of certiorari to quash thedecision of the 1st to 3rd respondents rejecting the applicationsof the petitioners for university admission. The petitioners furtherseek a writ of mandamus directing the 1st to 3rd respondents toconsider the applications of the petitioners when makingselection for admission to universities for the academic year2006/2007.
The petitioners got themselves registered in July 2006 tofollow a course of study known as National Diploma inTechnology (hereinafter referred to as NDT) at the Institute ofTechnology of the University of Moratuwa (ITUM) for theacademic year 2006/2007 on the basis of the results that theyobtained at the GCE Advanced Level (AL) Examination held in2005. The petitioners, who obtained better results at the GCE(AL) Examination held in 2006, submitted their applications tothe 1st respondent seeking admission to universities for theacademic year 2006/2007. However before doing so they gottheir registrations at the ITUM cancelled in October 2006. The1st to the 3rd respondents have refused to accept/or entertainthe said applications of the petitioners seeking admission touniversities for the academic year 2006/2007 on the basis thatthey had violated rule 6:2 of the rules of the University GrantsCommission printed in the Hand Book titled "Admission toUndergraduate Courses of the Universities of Sri Lanka"(hereinafter referred to as rule 6:2) marked as 2R2. LearnedCounsel for the petitioners contended that the said decision ofthe 1st to 3rd respondents was ultra vires and an error on theface of the record. Learned Counsel further contended that the1st to 3rd respondents had acted in violation of the rules ofnatural justice since the petitioners were not given an opportunityto explain as to why rule 6:2 was not applicable to them. LearnedDSG for the respondents, in reply, contended that since the
Rathnayake and Others v
CA University Grants Commission and Others (Sisira de Abrew, J.)275
petitioners had not withdrawn their registrations at the 1TUMwithin a period of thirty days from the last date for the registrationof the NDT course the applications of the petitioners had beenrightly rejected. He further contended that the petitioners hadviolated rule 6:2. Learned Counsel for the petitioners, however,contended that there was no last date for the registration of theNDT course since the registration had been done at variousstages as evidenced in P5(a), P5(b), P10, P11, P15 and P16.
The dates of registration in the said letters issued by the ITUMrun from 15.7.2006 to 30.11.2006.
I now turn to these contentions. In order to appreciate the saidcontentions, it is necessary to consider rule 6:2 in detail which isreproduced below:
"A student who is already registered for a particular course ofstudy at a Higher Educational Institution/lnstitute set up underthe Universities Act No. 16 of 1978 including the institutesmentioned in paragraph 1.4 above could apply for admission toanother course of study on the basis of the results of a GCE (A/L)examination held in a later year, only if he/she had withdrawn hisor her registration within a period of 30 days from the last datefor registration. Candidates who have not withdrawn theirregistration within the stipulated period of time given by therespective Higher Educational Institution/lnstitute will not beeligible for admission as they come under 6.1(b) above. The 30day concession stated herein will not be given to candidates whowill get selected to fill a vacancy and who will be selected to anycourse of study under paragraph 18(a) (b) (c) (d) (e) and 19 ofthis handbook."
The ITUM is included in paragraph 1.4 of 2R1. According torule 6:2 a student who is already registered for a particularcourse of study at a Higher Educational Institution/lnstitute setup under the Universities Act No. 16 of 1978 could apply foradmission to another course of study only if he/she hadwithdrawn his/her registration within a period of 30 days from thelast date for registration. The words "within a period of 30 daysfrom the last date for registration" need consideration. Was therea last date for registration for the NDT course at the ITUM? The
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learned DSG placing reliance on paragraphs 4 of P5(a), P5(b),P10, P11, P15, and P16 contended that the dates given in thoseletters should be considered as last dates for registration.Paragraph 4 of the said letters reads as follows: "If you do notregister on this date, the place offered to you will be given toanother applicant in the waiting list." As I pointed earlier theregistration of students for the NDT course had been done onvarious dates. How can, then, there be a last date forregistration? Can it be contended that in respect of one studentthe last date for registration is 15.7.2006 and for another30.11.2006? One should not forget, in this connection, the datefor registration given in P15 is 30.11.2006 and in P5(a) it is
It is significant to note that rule 6:2 does notcontemplate "last dates" it only specifies "a last date”. If thecontention of the learned DSG that the dates given in lettersP5(a), P5(b), P10, P11, P15, and P16 should be considered aslast dates, then one student has been given time till 15.8.2006 towithdraw his registration whilst the other student has been giventime till 30.12.2006. In between 15.8.2006 and 30.12.2006, if thecut off mark of the Z-score is released, then the student who hasbeen given time till 30.12.2006 will be on an advantageousposition than the other student who may sometimes haveobtained better results than the other one. In this way a studentplaced at a lower level of Z-score can get selected touniversityover a student placed at a higher level of Z-score.From the above observations it appears that there is nouniformity in the application of the last date for registration by theITUM. The last date for registration varies from one student toanother. The rule of certainty is that in order to be binding on theparties it should not be ambiguous. The rule 6:2 contemplatesonly on one date to be given by the Higher Educational Institutionas the "last date for registration". This rule does not permitdifferent dates being given to different students. The rule in itsapplication must not be partial and unequal among students whobelong to the same class or category. Therefore, in my view, theimpugned decision of the 1st to 3rd respondents is unrasonable.Under these circumstances can it be said that rule 6:2 has beenapplied uniformly to all students. The answer is no. Further whatrule 6:2 says is that the student must withdraw his/her
Rathnayake and Others v
CA University Grants Commission and Others (Sisira de Abrew, J.)277
registration 'within a period of 30 days from the last date forregistration. But it does not say that the student must withdrawhis/her registration within a period of 30 days from the last dateof his registration. For these reasons, I am unable to agree withthe contention of the learned DSG. Learned DSG tried to arguethat 20.9.2006 should be considered as the last date forregistration since the Inauguration Ceremony and the OrientationCourse have commenced on 19.9.2006 and 20.9.2006respectively. (Vide 4R2). But this argument is negated by thedecision of the ITUM to register students even after 20.9.2006.This is evidenced by P15 by which the ITUM has invited onestudent to register himself on 30.11.2006 to follow the NDTcourse. It has to be noted that the student referred to in P15 hasbeen invited not to fill a vacancy. Therefore it is seen that theITUM has continued to register students even after thecommencement of the Orientation Course. This shows that theITUM has not specified a last date for registration for the NDTCourse. Thus the contention which the learned DSG tried toadvance should fail. Considering all these matters, I hold theview the ITUM has not specified a last date for registration for theNDT course. In this regard it is appropriate to consider a passagefrom the judgment of His Lordship Justice Mark Fernandodelivered in the case of Nadeeka Hewage v University GrantsCommission and others^1): "Assuming that the existing rule 6:2 isvalid, it is nevertheless necessary to remember that access tohigher education is a right won by a small minority of students bytheir sustained effort over a considerable period of time, and not
by luck or by chanceRule 6:2 must be read as conferring a
right or option to a registered student in respect of access tohigher education for a subsequent year, and not as providing amere gamble; and as enhancing access based on merit ratherthan restricting access. It follows, that a student must be given allrelevant information subject to any reasonable requirement ofconfidentiality, necessary for the exercise of his option by meansof an informed and reasoned decision as to his prospects ofsuccess. Rule 6:2 must not be reduced to the level of a chanceto try his luck."
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The above passage was considered by Sripavan J. inFernando v University Grants Commission(2L Considering theabove observations, I hold the view that the impugned decisionof the 1st to 3rd respondents is unreasonable. Havingconsidered all these matters, it is safe to conclude that the ITUMhad not specified a last date for registration of the NDT courseand as such there is no violation of rule 6:2 by the petitioners.Therefore in my view the 1st to the 3rd respondent came to thewrong conclusion that the petitioners had violated rule 6:2. This,in my view, is an error on the face of the record. The petition ofthe petitioners should be allowed on this ground alone. LearnedDSG contended that the students mentioned in P5(a), P5(b),P10, P11, P15 and P16 were invited to register for the NDTcourse to fill vacancies and as such dates mentioned in theseletters should be considered as last dates. But he failed to submitthe last date for registration of the NDT course given by theITUM. Further P5(a), P5(b), P10, P11. P15 and P16 do not statethat the students mentioned therein were invited to fill vacancies.If the argument of the learned DSG is correct then the 30 dayconcession given in rule 6:2 will not be applicable to thepetitioners. The Senior Assistant Secretary of 1st respondent, by4R10, made inquiries inquiries from the Director of the ITUMwhether the petitioners had withdrawn their registration within aperiod of thirty days from the last date for registration. Thismeans the 1st respondent has admitted that 30 day concessionwas applicable to the petitioners. Then the argument of thelearned DSG that the petitioners were invited to fill vacanciesalso fails. For these reasons I reject the contention of the learnedDSG. Considering the above matters I hold the view that theimpugned decision of the 1st to 3rd respondents is arbitrary andunreasonable. What happens when the decision of therespondents is arbitrary and unreasonable?
In the case of Wheleer v Leicester City Council<3), (House ofLords) "a city Council had refused, contrary to its previouspractice, to allow a local rugby football club to use the city'ssports ground because three of its members had played in SouthAfrica." The House of Lords held that it was unreasonable topunish the club for not conforming to the Council's political
Rathnayake and Others v
CA University Grants Commission and Others (Sisira de Abrew, J.) 279
attitudes. The Council's decision was quashed. Lord Templemanin the above case remarked thus: "A private individual or aprivate organization cannot be obliged to display zeal in thepursuit of an object sought by a public authority and cannot be
obliged to publish views dictated by a public authorityThe
council could not properly seek to use its statutory powers of
management or any other statutory powers for the purposesof punishing the club when the club had done no wrong."
In the case of Rex v Tynemouth District Council4) LordRussell CJ held as follows. "A Local Authority was not entitled,as a condition of approving building plans, to stipulate that the
applicant should provide and pay for sewers outside his ownproperty." Issuing the writ of mandamus against the Council,Lord Russell CJ further held that this decision of the Council wasutterly unreasonable.
In the case of Regina v Birmingham Licensing PlanningCommittee"An elaborate system had been set up by thestatutory licensing planning committee in Birmingham to dealwith the licences relating to the many public houses destroyedin the Second World War. With Home Office approval and forsome twenty years they had refused to approve applicationsunless the applicant purchased outstanding licences sufficient tocover his estimated sales. The main object of the policy was torelieve the city of the cost of compensating the holders of theoutstanding licences. At the current market price of theselicences the proprietors of a large new hotel would have had topay over 14000 pounds. At their instance the Court of Appealcondemned the whole system as unreasonable." Lord DenningMR said: "I think it is unreasonable for a licensing planningcommittee to tell an applicant: 'we know that your hotel isneeded in Birmingham and that it is well placed to have an on-licence, but we will not allow you to have a license unless youbuy out the brewers.’ They are taking into account a payment tothe brewers which is a thing they ought not to take into account."
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Lord Greene MR in the case of Associated Provincial PictureHouse Ltd. v Wednesbury Corporation(6) at 229 stated thus: "It istrue that discretion must be exercised reasonably. Now whatdoes that mean? Lawyers familiar with the phraseology used inrelation to exercise of statutory discretions often use the word'unreasonable' in a rather comprehensive sense. It hasfrequently been used and is frequently used as a generaldescription of the things that must not be done. For instance, aperson entrusted with discretion must, so to speak, direct himselfproperly in law. He must call his own attention to the matterswhich he is bound to consider. He must exclude from hisconsideration matters which are irrelevant to what he has toconsider. If he does not obey those rules, he may truly be said,and often is said, to be acting unreasonably."
In the present case, did the 1st to 3rd respondents call theirattention to the matters which they were bound to consider? Didthe 1st to 3rd respondents consider whether the petitioners hadin fact violated rule 6:2. I think not. On this ground alone theimpugned decision of the 1st to 3rd respondents will have to bequashed.
For the reasons set out in my judgment. I, issuing a writ ofcertiorari, quash the decisions of the 1st to 3rd respondentsrefusing to accept/or entertain the applications of the petitionersfor admission to universities and I direct the 1st to 3rdrespondents by way of mandamus to consider the applications ofthe petitioners for admission to universities for the academicyear 2006/2007.
SRIPAVAN, J. -I agree
Application allowed.