SAMARAKOON AND OTHERS vs. UNIVERSITY GRANTS COMMISSION AND OTHERS

015-SLLR-SLLR-2005-V-1-SAMARAKOON-AND-OTHERS-vs.-UNIVERSITY-GRANTS-COMMISSION-AND-OTHERS.pdf


SCSamarakoon and Others119
VS University Grants Commission and Others
SAMARAKOON AND OTHERSVSUNIVERSITY GRANTS COMMISSION AND OTHERSSUPREME COURT,
BANDARANAYAKE, J.
JAYASINGHE, J ANDFERNANDO, J
SC (FR) APPLICATION NO. 307/2001OCTOBER 04TH AND 08TH 2004.
Fundamental Rights – Petitioners who qualified to join Medical Faculty fromKandy District according to policy declared in Hand Book excluded – Legitimateexpectations – Article 12(1) of the Constitution.
According to the Hand Book for the academic year 2000/2001 published by theUniversity Grants Commission (UGC) it was declared that 900 places will beavailable for intake of students to medical faculties of all the Universities in thiscountry. Out of this number and as per the marking scheme, 54 places had tobe allocated to the Kandy District. However, the UGC decided to admit only 865candidates. In the result 09 petitioners were not admitted from the KandyDistrict although they had obtained the requisite marks.
120Sri Lanka Law Reports(2005) 1 Sri L. R.
Held:
On the basis of the policy declared in the Hand Book, the petitioners hada legitimate expectation to be admitted to the Medical Faculty.
The failure to admit the petitioners was arbitrary and constituted aninfringement of their rights under the Constitution.
Per Bandaranayake, J
“Legitimate expectation derives from an undertaking given by someone inauthority and such an undertaking may not be expressed and would have to beknown from surrounding circumstances."
Cases referred to :
1. Council of Civil Service Union V. Minister for the Civil Services (1985) AC374.
APPLICATION for relief for infringement of fundamental rights.
D. S. Wijesinghe, PC with J. C. Weliamuna for petitioners.
Shibly Aziz, PC with Senani Dayaratne for 01st respondent.
S. Rajaratnam, Senior State Counsel for Attorney-General.
Cur.adv.vult.
25th October, 2004,
SHIRANI BANDARANAYAKE, J.In. the year 2000, students who belonged to two categories, sat for theGeneral Certificate of Education (Advanced Level) Examination (hereinafterreferred to as GCE [AL] Examination). They were the students who offeredfour subjects under the old syllabus and those who sat for three subjectsand fell within the new syllabus. The 01 st, 02nd, 04th and 09th petitionersin this application sat for the GCE (AL) Examination under the old syllabusoffering Chemistry, Physics, Zoology and Botany whilst the 03rd, 05th,06th, 07th and 08th petitioners sat under the new syllabus offeringChemistry, Physics and Biology. All the petitioners sat for the saidExamination from the Kandy District. The petitioners submitted that onthe basis of the admission policy of the University Grants Commission(hereinafter referred to as the UGC), which was brought to the notice of thepetitioners by the publication of the Hand Book for the Academic Year2001/2002 by the UGC, they had a legitimate expectation that on theresults they had obtained.that the petitioners would be selected to a Faculty
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of Medicine to fulfil their lifelong ambition of passing out as qualified medicalofficers.
However, the petitioners allege that the 01st respondent had failed toapply the said policy contained in the Hand Book of the 01 st respondentin calculating the minimum mark for admission to a Faculty of Medicine,which is commonly known as the 'cut off mark’ for selections. By theiraction, the petitioners allege that the 01st respondent has violated theirfundamental rights guaranteed in terms of Article 12(1) of the Constitution,for which this Court granted leave to proceed.
The UGC is the governing authority which plans and co-ordinates theUniversity education in the country and thereby the Commission has asits objects, inter alia, the regulation of the administration of HigherEducational Institutions and the regulation of the admission of students toeach Higher Educational Institution. The UGC carries out the admission ofstudents to Universities on the basis of an ‘admission policy’ which is laiddown from time to time by the UGC with the concurrence of the Governmentof Sri Lanka. This admission policy for each academic year is publishedby the UGC in one of their publications and is commonly known as theHand Book on 'admission to undergraduate courses of the Universities inSri Lanka’ (hereinafter referred to as the Hand Book).
Clause 3.2 (B) of the Hand Book refers to the minimum requirementsfor admission and it is common ground that all the petitioners have fulfilledthe requirement of having the minimum qualifications for admission toUniversity. In terms of clause 3.2 (D) of the Hand Book, admission to aFaculty of Medicine would be made on a dual criteria, namely, on allisland merit and merit on district basis. The Hand Book specifies the dualcriteria on the following basis :
“Under All Island merit criteria :
upto 40% of the available places will be filled in order of marksranked on an all island basis.
Under District Merit criteria :
upto 55% of the available places in each course of study will beallocated to the 25 administrative districts in proportion to thetotal population of the district concerned to the total population ofthe country.
122Sri Lanka Law Reports(2005) ! Sri L. R.
A special allocation upto 5% of the available places in each courseof study will be allocated to the under-mentioned 13 educationallydisadvantaged districts in proportion to the population, that is, onthe ratio of the population of each such district to the totalpopulation of the 13 districts :
NuwaraEliya
Hambantota
Jaffna
Kilinochchi
Mannar
Mulaitivu
Vavuniya .
Trincomalee
Ampara
Anuardhapura
Polonnaruwa
Badulla
Monaragala
The number of places allocated on the district merit quota given in(ii) and (iiii) above will be filled in order of marks ranked on thedistrict basis.”
The petitioners contended that in terms of the aforementioned process,a candidate would be given an island rank in the All Island Merit List or aDistrict Rank in the District Merit List and such ranking given to a studentwould determine that student’s chances of gaining admission to University.At the time the petitioners sat for the GCE (A/L) Examination, separateexaminations were held for the candidates who were sitting for the newsyllabus and for the candidates who were repeating the examination underthe old syllabus. Whilst the new syllabus consisted of three subjects, thestudents who were sitting under the old syllabus had to sit for four subjects,in view of the difference of the number of subjects in the new syllabus(three subjects) and the old syllabus (four subjects) candidates who satfor the said Advanced Level Examination in the year 2000 were ranked onthe all island merit and merit on district basis on the average of marks inone common list.
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In terms of the marks obtained by the petitioners at the said examination,their respective average, All Island Ranks and the District Rank that waspublished by the UGC was as follows :
Table I
Index No. Average Rank
District Island
01st petitioner 2482827 70% " . 45 774
02nd petitioner 2485982 69.75% 46 807
03rd petitioner 2476576 69.66% 47 not known
04th petitioner 2486059 69.5% 48 856
05th petitioner 2513200 69.33% 49 892
06th petitioner ' 2485109 69.33% 49 892
07th petitioner 2513765 69.33% 49 892
08th petitioner 2588218 69.33% 49 892
09th petitioner 2634317 69.25% 53 919
The selection to different faculties and to respective Universities is carriedout by the UGC on the basis of number of places that are available foreach faculty and such numbers are given in the Hand Book prepared forthe current academic year.
The petitioners contended that in terms of Clause 2 of the admissionpolicy given in the Hand Book, approximately 900 places were availablefor the study of Medicine in all the Universities in the country. In fact theircontention was that even for the previous academic year, viz. 2000/2001,there were 900 places allocated for the Faculties of Medicine. Theysubmitted that commencing from the academic year 1993/1994 numberof places in Faculties of Medicine had improved each year and the saidimprovement in number could be tabulated as follows (P3A and P3B):
9-CM 5256
Year Proposed number of places
1993/1994 769
1994/1995 856
1995/1996 889
1998/1999 893
1999/2000 896
2000/2001 900
On the basis of the aforementioned circumstances the petitionerscontended that 40% of the places out of 900 that have been enumerated inthe Hand Book in respect of the Faculties of Medicine would amount to360 students being admitted on All Island Merit Basis from the All IslandMerit List. Further the petitioners contended that on the basis of DistrictMerit, 55% out of 900 places would bring in 495 students to the Facultiesof Medicine.
To consider the number of places allocated to Kandy District, in termsof Clause 3.2(D)(ii) of the Hand Book it would be necessary to obtain theratio of the population of the district concerned, to the population of thecountry. Notwithstanding the above the NOTE to Clause 3 of the HandBook specified that,
“In selecting students for a given course of study, it willbe ensured that the quota allocated to any district under
and (iii) above will not be below the quota in the baseacademic year, namely 1993/1994.”
The reference to (ii) and (iii) is regarding the 55% and 5% under DistrictMerit Criteria, which has been cited earlier.
The petitioners contended that the population ratio of any district istaken into consideration for the purpose of making selection of candidatesto public bodies which would include the Universities. The ratio of the
124Sri Lanka Law Reports(2005) 1 Sri L. R.
Table II
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Kandy District in relation to the population of the island at that time was7.1 %. Accordingly 35 places which is 7.1 % out of 495 should be allocatedto the Kandy District on the basis of District Merit. The submission by thepetitioners therefore is that,
19 candidates from the Kandy District should be selected fromthe All Island Merit List,
35 candidiates should be selected from the District Merit List;and
A total of 54 candidates therefore should be selected for theFaculties of Medicine from the Kandy District.
, Referring to their District Rank which was cited earlier in Table I, thepetitioners claim that all of them should have been selected to Faculties ofMedicine from the Kandy District as all of them are above the cut off pointof 54.
Learned President’s Counsel for the 01st respondent conceded thatthe total allocation for the Faculties of Medicine for the academic year2001/2002 was 900. Moreover learned President’s Counsel conceded thatout of the 900 places allocated for the Faculties of medicine, 40% were tobe filled on the basis of an All Island Merit quota, 55% to be filled on thebasis of a District quota and 5% to be filled ont he basis of a DisadvantagedDistrict quota.
However, the 01st respondent has taken up the position that thecontention of the petitioners that the aforementioned quotas should notonly be filled on the basis of a base figure of 900, but also should becalculated on the basis of a base figure of 900 is erroneous and logisticallyimpossible. “The 01st respondent’s position is that the relevantcalculation for the allocation of the number of students for theFaculties of Medicine were not made on the basis of the total numberof vacancies that were stated in the Hand Book, namely 900, but ona hypothetical figure rationally and reasonably determined by the01 st respondent’. The 01 st respondent’s submission therefore is that the900 vacancies stated in the Hand Book is the ultimate figure that would bearrived at by the UGC and that they had to decide on a hypthetical figuredue to the following reasons :
126Sri Lanka Law Reports(2005) t Sri L. R.
Out of the total allocation of 900 places to Faculties of Medicine,100 were reserved to be sent to the University of Jaffna. Due tothe security situation which prevailed in the North at that time, thenumber of students that could be sent to University of Jaffna waslimited to Tamil students from the Northern and Eastern Provinces; and
The ‘clustering’ of students on the said mark would result in ananomalous situation where an excessive number of students wouldbe selected to fill the available vacancies.
In view of the aforementioned position, the UGC was of the view that if■ the Merit and District quotas were calculated on the basis of a figure of900, the incidence of ‘clustering’ would invariably result in a final figure inexcess of 900 which was the maximum number of vacancies in the variousfaculties of Medicine in the country. Therefore the UGC had taken a decisionthat 900 should be the hypothetical base figure that should be taken intoaccount for the calculation of allocations to select 900 students to studyMedicine. Accordingly the UGC had arrived at the following figures.
Table III
Hypothetical intake 800
All Island Merit Quota of 40% 800 x 40% 320
District Quota of 55% 800 x 55% 440
Disadvantaged District Quota of 5% 800 x 5% 40
Learned President’s Counsel for the 01st respondent submitted thatthe clustering of students on the same mark point resulted in the followingfinal allocations:
The position taken up by the UGC is that at the time material to thisapplication due to the prevalent unrest in the North out of a possible 100students, only 70 students were admitted to the Faculty of Medicine ofthe University of Jaffna. It was contended on behalf of the UGC that althoughthe selection of 70 students to the Faculty of Medicine in the University ofJaffna left 830 places to be filled (900 – 70) in reality inasmuch as 30 ofthose remaining vacancies were allocated strictly for the University of Jaffna(which had a total allocation of 100 places) and due to this reason therewere only 800 vacancies to be filled in the Universities other than theUniversity of Jaffna. (830 – 30 = 800).
Accordingly the UGC had submitted the number of students to beselected for medical studies in the Universities other than in the Universityof Jaffna calculated in the following manner:
Table V
Total allocation (calculated-on the basis of ahypothetical base figure of 800) 856
Less: the allocation for the University of Jaffna 70
786
Plus the allocation for the special categories 15
Total 801
Table IV
All Island Merit Quota 323
Aggregate of the District Quota and the DisadvantagedDistrict Quota (which figure could.not be less than theallocation for the academic year 1993/1994) 533
The allocation for the special categories 15
Total 871
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128Sri Lanka Law Reports(2005) 1 Sri L. R.
The respondents therefore contended that the aforesaid calculation of.801 places for the Universities other than the University of Jaffna, clearlyindicates that it-is equivalent to the total allocation for the Faculties ofMedicine in the Universities of this country.
It is common ground that the UGC had indicated in their Hand Bookthat 900 students would be admitted to the Faculties of Medicine. In termsof Clause 8.3 under the heading ‘Biological Science Stream’, the HandBook states that,
“8.3.1 Medicine/Dental Surgery/Veterinary Science
(Proposed Intake ':Medicine – 900 ;
Dental Surgery – 75 ;
Vet. Science – 75)”
Notwithstanding the above the UGC has taken the view that, the intaketo Faculties of Medicine has to be decided on a hypothetical figure whichwas 800 for the academic year 2001 /2002. The Hand Book does not indicateany such hypothetical figure regarding the selection of students. Althoughthe UGC refers to the prevalent situation in Jaffna at that time, no materialhas been produced to substantiate this position. More importantly it is tobe noted that the UGC has riot explained to this Court as to how they havearrived at the hypothetical figure of 800 to select the students. Althoughthe UGC refers to the difficulties in admitting students to the University ofJaffna, they were aware of such difficulties at the time they had decided onthe intake of 900 students to the Faculty of Medicine. Accordingly thedecision of the UGC to select students on a hypothetical figure of 800becomes unreasonable as well as a decision that is without any basis.The UGC has to be guided by their own admission policy which is containedin the Hand Book and such admission policy has no reference regardingthe usage of a hypthetical figure in order to select the candidates.
The UGC being the authority which has been assigned the task toselect the students for admission to undergraduate courses in theUniversities, should be mindful of the competition which is prevalent in thecountry in gaining admission to a University of the Republic. In fact Clause5 of the Hand Book is on ‘competition for admission’ and it reads asfollows:
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‘The admission to Universities is extremely competitive.
The number selected as a proportion of the number satthe Advanced Level Examination has been only about7% – 8%"
Such being the situation in gaining admission to a university in SriLanka, the UGC should have been considerate of the expectations of thestudents who were awaiting to enter the University after the completion ofthe GCE (A/L) Examination. When the UGC has stated quite clearly in itsHand Book which was brought to the notice of the students in advance,that the proposed intake for the Faculties of Medicine is 900, now theycannot take up the position, without any supporting documents that theyhave adopted a hypothetical base mark of 800 to select 900 students tostudy Medicine.
Considering the submissions made by the learned President’s Counselfor the UGC, it is their position that for the academic year in question thetotal allocation for the Faculties of Medicine was 871. However, it is to benoted that the said intake of 871 students'is 25 students less than theintake for the academic year 1999/2000 where 896 students were takeninto the Faculties of Medicine. There is no explanation given by the UGCas to the reduction of the number for the academic year 2000/2001.
Furthermore it is to be noted that Clause 3.2 of the admission policywhich was referred to earlier, clearly enumerates that in selecting studentsfor a given course of study that it will be ensured that the quota allocatedto any district under District Merit Criteria which included 55% allocatedto the 25 administrative districts and a further 5% as a special allocationto the 13 educationally disadvantaged districts will not be below the quotain the base academic year, namely, 1993/1994. Accordingly it is abundantlyclear that the district quota for the Faculties of Medicine cannot be belowthe number that was stipulated in the academic year 1993/1994. Accordingto the document marked P9, which gives the details of the undergraduateentrants classified according to academic streams, district and admittedcategory for the academic year 1993/1994 for the Kandy District the meritquota had been 30 and the district quota was 36.
According to the petitioners, only 32 candidates were selected fromthe Kandy District on the district merit list for the year 2001/2002 to enter
130Sri Lanka Law Reports(2005) ! Sri L. R.
a Faculty of Medicine to follow a course in Medicine. If the schemeformulated in the admission policy was implemented considering thepopulation ratio of the island vis-a-vis be Kandy District, 35 places shouldhave been allocated to Kandy District. Moreover, from the all Island MeritList 19 students should have been selected whereby the total figure wouldhave been 54 and making such figure the minimum district rank that isrequired for the admission to a Faculty of Medicine from the District ofKandy. It is to be borne in mind that all the petitioners are over and abovethe said minimum district rank of 54. .
The petitioners expected to enter a Faculty of Medicine as the admissionpolicy given in the UGC Hand Book had clearly stated that, the intake tothe Faculty of medicine would be approximately 900 students. When sucha figure is indicated as the number that would be admitted, any reasonableperson would consider his chances in entering the University and especiallya particular Faculty of student’s choice, taking into account the said figurethat is specified. Therefore, the number that would be taken intoconsideration would certainly be 900 and it is not possible for any one toconsider either 800 or 1,000 as the number that would be taken into accountin selecting the qualified candidiates. Being the final authority in theselection of students to Universities and specified Faculties, the UGCshould have been mindful that there is a strong possibility of having‘clustering of marks’ when it comes to selections. It would not be incorrecttherefore to state that when the UGC published their academic policy forthe academic year in question, they were aware of such difficulties andhad stated 900 would be taken for the Faculties of Medicine bearing allthose factors in mind. In such circumstances, without giving any reasonsand without rationalizing or substantiating their decision, it is not possibleto accept that the base mark was taken as 800. The non consideration of900 as the base mark and adopting a hypthetical mark of 800, thereforebecomes an irrational and arbitrary decision which violated the petitioners’fundamental rights guaranteed in terms of Article 12(1) of the Constitution.
The petitioners complained that they had a legitimate expectation thatthe academic policy hitherto applicable (P1) would be applied to them forthe selection of candidates to the different faculties in the Universities.
Legitimate expectation derives from an undertaking given by someonein authority and such an undertaking may not even be expressed and
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would have to be known from the surrounding circumstances. Describingthe meaning of legitimate expectation, Prof. Galligan (Due Process andFair Procedures, A Study of Administrative Procedures, Clarendon Press,Oxford 1996, pg. 320) stated that',
“In one sense legitimate expectation is an extension of the idea ofan interest. The duty of procedural fairness is owed, it has beensaid, when a person’s rights, interests, or legitimate expectationsare in issue. One might have no right or interest at stake, butbecause of something said or done by the authority, anexpectation may be raised which should not be disappointedwithout following certain procedures. An example is an alienseeking an extension of a visa to stay in the United Kingdom.Under English Law he has no right or legitimate interest in beingallowed to stay ; but he might acquire a legitimate expectationfrom an undertaking or holding out that he will be allowed to stay(emphasis added).”
The petitioners’ position was that they were made aware by the UGCthat there would be 900 places for the study of Medicine. Therefore thepetitioners expected that on the basis of the 900 vacancies that existed inthe University system, that they would be selected to follow a course inMedicine. It is apparent that there was no such undertaking given by theUGC for the petitioners that they would be selected to a Faculty of Medicine.However, although there was no such express undertaking given to thepetitioners by the UGC, the petitioners have sought such an obligation byinference. The question as to the legal position with regard to legitimateexpectation where there is no express undertaking given was discussedin Council of Civil Service Unions v Minister for the Civil ServiceDiscussing on judicial review Lord Diplock referred to the aspects oflegitimate expectations of persons and stated that,
“Civil servants employed at GCHO who were members of the
National Trade Union had, at besta legitimate expectation
that they would continue to enjoy the benefit of such membership
Sothey were entitled, as a matter of public law under
the head ‘procedural propriety’, before administrative action wastaken on a decision to withdraw that benefit, to have communicated
to the national trade unionsthe reason for such withdrawal
and for such unions to be given the opportunity to comment on it.”
132Sri Lanka Law Reports(2005) 1 Sri L. R.
This clearly indicates that a state of affairs that had persisted earlier-could give rise to an expectation that it will continue even in the future andsuch an expectation is derived on the basis that there is an implicitundertaking by the authority that the previous position would remain.
Considering the steps that had been taken by the UGC, it is abundantlyclear that there has been no basis for them to rely on a hypothetical markof 800 for the selection of 900 students which was specified in the HandBook for the academic year 2001/2002. As stated earlier, for the 900vacancies only 856 students were selected. The reason for the non-selection of the complete contingency of 900 students, according to theUGC was the prevailing situation at the time material in the North andtherefore the difficulty in sending students to the Faculty of Medicine ofthe University of Jaffna. However, the Hand Book does not refer to anysuch situation, but clearly states that,
proposed intake for Medicine will be 900,
in selecting students for a given course of study it will be ensuredthat the quota allocated to any district under District Merit Quota(55% and the 5% of the educational disadvantaged districts) willmot be below the quota in the base academic year, that in 1993/1994. In the base academic year 36 students were taken from theKandy District under the aforementioned categories.
On a consideration of the totality of the material before this Court it isapparent that the information given in the Hand Book prepared anddistributed by the UGC has given rise to a legitimate expectation that 900students would be taken in for Faculties of Medicine and the selectionswould be finalized on that basis. I am of the view that the UGC had actedarbitrarily and irrationally on the selection of students to the Faculties ofMedicine for the academic year 2001/2002. I accordingly hold that the01 st respondent has violated the petitioners’ fundamental rights guaranteedin terms of Article 12(1) of the Constitution. •
The 01 st respondent is directed to admit the petitioners who would now. be interested in entering a Faculty of Medicine for the academic yearwhich would be commencing in 2005. The admission of petitioners to theFaculties of Medicine for the academic year commencing in 2005 should
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Commission. Uva and Others
not be taken into consideration by the 01 st respondent in determining theintake of students to study medicine for that academic year, as thepetitioners are considered in terms of the admission criteria that wereapplicable for 2001/2002 academic year. The 01st respondent is alsodirected to pay a sum of Rs. 30,000 to each of the petitioners, irrespectiveof the fact whether they decide to enter a Faculty of Medicine or not, ascompensation and costs. These amounts to be paid within 03 monthsfrom today.
JAYASINGHE, J. -1 agree '
FERNANDO, J.-1 agree.
Relief granted.