057-SLLR-SLLR-2002-3-SAHEER-AND-OTHERS-v.-BOARD-OF-GOVERNORS-ZAHIRA-COLLEGE-AND-OTHERS.pdf
CA
Saheer and Another v. Board of Governors
Zahira College and Others
405
SAHEER AND OTHERS
v.BOARD OF GOVERNORS,ZAHIRA COLLEGE AND OTHERS
COURT OF APPEALJAYASINGHE, J. (P/CA) ANDEDIRISURIYA, J.
CA NO. 1002/97JANUARY 29, 2002 ANDMARCH 08, 2002
Wirt of certiorari – Education Ordinance, sections 37 and 62 – Board of Trusteesof Maradana Mosque Ordinance, No. 22 of 1924 – Zahira College Board ofGovernors Incorporation Act, No. 18 of 1982, section 6A – Assisted Schools andTraining Colleges (Special Provisions) Act, No. 5 of 1960 – Incorporation of ZahiraInternational School (Pvt) Ltd. – Can a private company run an internationalschool in Zahira College premises? – Is the Board of Governors a statutorypublic authority? – Is Zahira College a public body?
A writ of certiorari was sought preventing the 2nd respondent (Principal) fromcarrying on Zahira International School (Pvt) Ltd., at the premises where ZahiraCollege is situated. The petitioner contends that, the 1st respondent has exceededits authority granted by giving approval to a private company to run an InternationalSchool in the Zahira College premises.
The respondent contended that the petitioners are parents of children studyingat Zahira College, and as such they have a contractual relationship with ZahiraCollege and writ will not lie.
Held:
Within the scheme of national education, the Board of Governors is astatutory public authority receiving and spending State funds being subjectto government regulations in the administration of students, employmentof teachers, etc.^
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Zahira College is a public body.
The 1st respondent has exceeded the authority granted under section6A of Act, No. 18 of 1982, by giving approval to a private companyto run an International School in the Zahira College premises. The 1strespondent has no right to use buildings of Zahira College for any otherpurpose other than for and on behalf of Zahira College.
Cases referred to :
Nanayakkara v. The Institute of Chartered Accountants of Sri Lanka -(1981) 2 SRI LR 52.
Trade Exchange (Ceylon) v. Asian Hotels Corporation Ltd. – (1981) 1 SriLR 67.
Rex v. National Joint Council for Dental Technicians, Ex parte Neate -(1953) 1 QB 704.
Wijesiri v. Siriwardena – (1982) 1 SRI LR 171.
APPLICATION for writs in the nature of certiorari and/or prohibition.
R. K. W. Goonasekera with S. Jayathilake for petitioner.
Farook Thaheer for 1st and 2nd respondents.
Cur. adv. vult.
December 03, 2002JAYASINGHE, J. P/CA
The petitioners filed an application for the issuance of a writ of 01certiorari to quash the order/decision of the 1st respondent grantingthe 2nd respondent permission to run an International School in theZahira College premises, Colombo, a writ of prohibition preventingthe 2nd respondent from carrying on Zahira International School Pvt.Ltd. at the premises where Zahira College is situated, a writ ofprohibition preventing the 1 st and 2nd respondents from allowing the
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Saheer and Another v. Board of Governors
Zahira College and Others (Jayasinghe, J.)
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use of Zahira College buildings or any other facilities, a writ ofprohibition preventing the 1 st respondent from allocating or using anyfunds collected on behalf of Zahira College International.
The petitioners state that Zahira College, Colombo, was establishedin the year 1912 and managed by the Maradana Mosque. By Ordinance,No. 22 of 1924 the Board of Trustees of the Maradana Mosque wasincorporated and the management and direction of Zahira College wasvested in the said incorporated body. After Zahira College, Colombo,Board of Governors Incorporation Act, No. 18 of 1982, was enactedthe management of Zahira College vested in the said Board ofGovernors of Zahira College.
It was submitted that prior to 1960 Zahira College was an assistedschool and after Assisted Schools and Training Colleges (SpecialProvisions) Act, No. 5 of 1960 Zahira College became an unaidedschool within the meaning of section 62 of the Education Ordinanceand functioned as such until the Minister of Education took over ZahiraCollege and consequently ceased to be an unaided school andbecame an assisted school. This decision was challenged in theSupreme Court and thereafter in the Privy Council and Zahira Collegereverted back to its original status of an unaided school.
In August, 1995, the Board of Governors of Zahira College appointedthe 2nd respondent as the Principal of Zahira College. The petitionersstate to the best of their knowledge the 2nd respondent does not havea degree from a recognised University and neither does he have 10years' teaching experience. The petitioners state that appointment ofthe 2nd respondent as principal of Zahira College is contrary to theregulations made under the Education Ordinance in respect ofappointments of Principals to government assisted schools.
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By letter dated 17. 09. 1996, the 2nd respondent summoned theadvanced level commerce students along with their parents and informedthem that Zahira College intended to commence classes in the Englishmedium and the students who wished to make use of this opportunitycould do so. There were advertisements also placed in the press *ocalling for applications for Graduate Teachers to teach Commercesubjects in the English medium at Zahira College. On 19. 10. 1996the 2nd respondent summoned the parents for a meeting and weregiven forms to be signed granting their consent to the Principal ofGlobal Open Campus (Pvt.) Ltd to conduct classes for advanced levelcommerce students at Zahira College premises in the English medium.
The petitioners state that accordingly 83 students were admittedto Global Open Campus (Pvt.) Ltd. advanced level English mediumcommerce class commenced on 04. 11. 1996 and the students wererequired to pay Rs. 1,000 per month as school fees. The names of sothose students were removed from the register of Zahira College.However, the classes were held at Zahira College. The petitionerobjected to the 2nd respondent using the Zahira College building forthis purpose.
The uniform material issued to the students of Zahira College forthe year 1997 were also given to students Global Open Campus (Pvt.)Ltd. Some of the students at the said school were made prefects ofZahira College. On 17. 12. 1996 Zahira International School (Pvt.)
Ltd. was incorporated. The petitioners state that their inquiries revealed,that the said international school is to be housed in the Zahira College 60premises and that the commerce students who had enrolled underGlobal Open Campus (Pvt.) Ltd. had commenced their studies underthe Zahira College International School (Pvt.) Ltd. The petitioners statethat the admission fee for a student is Rs. 15,000 with school fees
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Saheer and Another v. Board of Governors
Zahira College and Others (Jayaslnghe, J.)
409
being Rs. 1,000 per month. The petitioners state that the studentpopulation of Zahira College is drawn, namely from the middle classand lower middle class of the society. The petitioners state that forthe last 15 years the Board of Governors of Zahira College hadmanaged controlled and conducted the affairs of Zahira College asan educational institution in accordance with the General EducationalPolicy of the Government. That according to section 6A of Act, No.18 of 1982 the 1st respondent has exceeded the authority grantedunder the said section by giving approval to a private company torun an international school in Zahira College premises. That buildingsof Zahira College has been put up with funds collected from the Muslimcommunity for and on behalf of Zahira College and the 1st respondenthas no right under Act, No. 18 of 1982 to use buildings of ZahiraCollege for any other purpose other than for and behalf of ZahiraCollege.
The respondents in their objections took up the position that thereare no students of any international school referred to by the petitionersand that all students are students of Zahira College; that ZahiraInternational (Pvt.) School Ltd. is a fully owned subsidiary of ZahiraCollege, that all monies collected or belonging to Zahira InternationalSchool and all monies received from students are credited to acommon fund. That Zahira College decided to have English mediumclasses and the government has in no way raised any objection. Therespondents state that there are no students of Zahira CollegeInternational (Pvt.) Ltd. The respondents state that the 2nd respondentis a person with the necessary qualifications and experience to bethe Principal of Zahira College.
It was the contention of Mr. Thaheer that the petitioners are parentsof children studying at Zahira College and as such they have acontractual relationship with Zahira College and writ therefore will not
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lie. In Nanayakkara v. The Institute of Chartered Accountants of SriLankd1> the petitioner who was a Stores Clerk of the institute wascharged for the violation of the regulation of the Institute anddisciplinary inquiry was initiated against him. The petitioner filedan application for writ of certiorari and prohibition to quash thedisciplinary proceedings. It was held that –
“Examination of the regulations in the manual of procedureshowed that the petitioner’s employment had a statutory flavourwhich differentiated it from the ordinary relationship of Master andServant: The manual of procedure gave rights to the employeeand imposed obligations on the employer going beyond the ordinarycontract of service and regulating, inter alia, the grounds andprocedure after dismissal. The remedy by way of certiorari wastherefore available to an employee.”
Admittedly, Zahira College Board of Governor is a statutory body.In Trade Exchange (Ceylon) v. Asian Hotels Corporation Limited2*it was observed that –
“An important aspect of prerogative remedy is that they belongexclusively to public law, their primary object being to make themachinery of government work properly rather than enforceprivate rights. An application for prerogative remedy of writ ofcertiorari is a proceeding calling some public authority to showlegal justification for its action and to account for exceeding orabusing its power. A public authority may be described as aperson or administrative body entrusted with function to performfor the benefit of the public and not for private profit.”
Lord Goddard, CJ. in Rex v. National Joint Councils for DentalTechnicians, Ex parte Neatd3) observed that :
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Saheer and Another v. Board of Governors
Zahira College and Others (Jayasinghe, J.)
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“The bodies to which in modem times the remedies of thisprerogative writs have been applied have all been statutorybodies on whom Parliament has conferred statutory powers andduties which when exercised may lead to the detriment ofsubjects who may have to submit to their jurisdiction."
Mr. Gunasekara invited attention of court to the regulations madeby the Minister of Education under section 37 of the EducationOrdinance. The said regulations required all assisted schools andunaided schools to conform to requirements stated therein inregard to the qualifications, appointments, etc., of teachers andprovided that teachers who do not conform to the conditionsstipulated in the said regulations and who are already in serviceto obtain the approval of the Minister to continue in service. Theregulations made it obligatory for the management of such schoolsto make the requisite applications to the Minister. The argumentthat the petitioners as parents of students at Zahira College enjoyednothing more than the contractual relationship is therefore withoutmerit. The powers of the Board of Governors as spelt out in the Actcannot be abused or exceeded. When it does writ would lie. Withinthe scheme of National Education the Board of Governors is astatutory public authority receiving and spending State funds,being subject to government regulations in the admission of students,employment of teachers, etc. As Wade says certiorari and prohibitionare designed to prevent excess or abuse of power by public authorities.That Zahira College is a public body therefore cannot be contraverted.
Counsel for the respondents also submitted that the order / decisionsought to be quashed is not before court and as such the applicationfor writ cannot be maintained.
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Mr. Gunasekera. invited attention of court to P11A which is a noticeunder the hand of the Principal referring to a decision of the Boardof Governors to admit students to Zahira International School.Counsel then referred to P5 a specimen addressed to the Prin-cipal, Global Open Campus (Pvt.) Ltd. by which the parents willconsent to the students names being removed from the registerof students of Zahira College and amomg other things to applyfor the Advanced Level Examination as a private candidate.
Mr. Gunasekara submitted that in Wijesiri v. Siriwardena<4) it washeld that it is sufficient if the applicant can show a genuine interestand ask for discretionary relief to have P5 and P11A set aside.
I accordingly grant:
A writ of certiorari quashing the order/decision of the 1strespondent granting the 2nd respondent permission to runan International School at Zahira College premises inColombo.
A mandate in the nature of writ a of prohibition preventingthe 2nd respondent from carrying on Zahira CollegeInternational School (Pvt) Ltd. at the premises where theZahira College is situated.
A mandate in the nature of a writ of prohibition preventingthe 1st respondent from allocating or using any fundson behalf of Zahira College and any funds in the Zahiraaccount for any purposes of the Zahira College Inter-national School (Pvt.) Ltd.
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Saheer and Another v. Board of Governors
Zahira College and Others (Jayasinghe, J.)
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A writ of prohibition preventing the 1st respondent fromallowing to use of Zahira College building or any other facilitysuch as laboratories, libraries, playground, etcetera, forstudents of Zahira College International School (Pvt.) Ltd.
The 1st respondent shall pay the three petitioners a sum of Rs. 10,000each as costs.
EDIRISURIYA, J. – I agree.
Application allowed
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