SC 'Sannasgata v. University of Kelaniya
and Members of the University Senate
mSANNASGALA
V.
UNIVERSITY OF KELANIYA ANDMEMBERS OF THE UNIVERSITY SENATE
SUPREME COURT.
AMERAS1NGHE, J„ KULATUNGA, J. AND
DHEERARATNE, J.
S. C. APPEAL NO. 47/87.
*
C.A. NO. 91/83.
JULY 04, 1991
Mandamus – University of Ceylon Act, No. 1 of 1972 section 81(7) -Higher Education Act, No. 20 of 1966 – Validity of rules made on28.12.1962 under the Vidyalankara University Act, No. 45 of 1958 – Univer-sities Act, No. 16 of 1978 – Was power to confer degrees under the 1962rules kept alive? – Promissory estoppel[ – Can it legitimate an act which isultra vires? — Articles 118 and 127 of Constitution — Point being raised forthe Erst time in appeal.
The Faculty of Arts of the Vidyalankara Campus provisionally registeredthe petitioner as a candidate for the award of the D. Lit. Degree. The Exa-miners approved the granting of the Degree to him on his thesis entitled"Sinhala Vocables of Dutch Origin*'. However, further steps were not takento confer the degree sought, but the petitioner was informed that action hadbeen stayed on the direction of the Vice-Chancellor until regulations wereformulated by the Senate for the conferment of degrees.
The Petitioner filed an application for the issue of a writ of mandamus.
Section 81(7) of the University of Ceylon Act, No. 1 of 1972 saved onlythe rules made after the coming into operation of the Higher Education Act,No. 20 of 1966. The rules approved on 28.12.1962 by the Senate of theVidyalankara University established under the Vidyodaya and VidyalankaraUniversities Act, No. 45 of 1958 suffered a statutory demise with the repealof the Act of 1958 by the Higher Education Act, No. 20 of 1966. With theenactment of the Universities Act, No. 16 of 1978 (s. 139), VidyalankaraCampus was deemed to be a University established under the Act, No. 16 of1978 and given the name University of Kelaniya.
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Section 81(7) of Act, No. 1 of 1972, preserved only the rules made underthe provisions of Act, No. 20 of 1966. The rules made in 1962 were repealedalong with its enabling Act, No. 45 of 1958 and were not revived by s. 81(7)of Act, No. 1 of 1972.
Although the Vidyalankara Campus registered the petitioner as a candi-date for O. Litt Degree on 02.07.1976 and his thesis on “Sinhala Vocables ofDutch Origin” was approved by the examiners, still the action of the Univer-sity in staying the conferment of the degree until regulations were formu-lated by the Senate for the conferment of degrees did not put the Universityin breach of any statutory obligation as the rules made in 1962 had no statu-tory force in 1976.
In the absence of rules, the only statutory basis for the petitioner’s appli-cation for a degree in 1976 is s. 4 (h) of Act, No. 1 of 1972 which empowersthe University to confer degrees on persons who are employed on the staff ofthe University, therefore the most that the petitioner would be entitled to byway of a Writ of mandamus will be a direction to the University of Kelaniyato consider his application for a degree since all those taken under the rulesof 1962 have to be disregarded as invalid. The petitioner however insists thathe is entitled to a degree and all that the University has to do is to conferthe degree. Accordingly the petitioner has failed to establish that therespondents are subject to any public or statutory duty which entitles him tomandamus.
Per Kulatungc J: “I am inclined to the view that even if the rules marked‘A’ (rules of 1962) have statutory force the petitioner has no such absoluteright to a degree as he claims, to the exclusion of any discretion exercisableby the competent body in that regard".
The argument based on promissory estoppel was raised at the hearingwithout notice to the other side. Articles 118 and 127 of the Constitutionenable the Supreme Court to allow an appellant tc urge before it grounds ofappeal other than the one on the basis of which the Court of Appeal grantedleave if the material on record warrants the determination of the same, sub-ject however to the limitation that it may not permit a party to raise a newpoint if the other party had no proper notice of the new ground, or wouldsuffer grave prejudice by the belated stage at which it is raised. No noticehas been given and it would also cause prejudice.
Per Kulatunge J:
“ It (promissory estoppel if applied) would create a situation where theUniversity would be compelled to confer a degree by estoppel. It would not
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be in the general interest of University education; and even if estoppel isrelevant such a situation is undesirable and should preferably be avoided".
Promissory estoppel is based on a clear promise or assurance on the basisof which one party has acted to his detriment in respect of the legal relationsbetween the parties. Once this happens the person who gave the promise orassurance cannot revert to their previous legal relations but he must accepttheir relations subject to the qualification which he himself has so intro-duced. This doctrine applies to public authorities. One of the qualificationsto this doctrine is that the promisor can resile from his promise on givingreasonable notice, giving the promisee a reasonable opportunity of resuminghis position.
As early as June 1977 the authorities had given the petitioner notice thatthey were resiling from the promise if any, given to the petitioner – the rea-son being the absence of rules. This was reasonable notice of lack of author-ity to consider the petitioner’s case.
Estoppel cannot legitimate ultra vires action.
Cases referred to:
Afforney-Genera/ of Hor,g Kong v. Ng. Guen Shin [1983] 2 All ER 346,351
R v. Secretary of State for the Home Department ex parte Khan
[1985] I All ER 40.
Albert v. Veeriahpillai [1981) 1 Sri LR 40APPEAL from the judgment of the Court of Appeal.
H. L. de Silva P.C. with Gomin Dayasiri and N. M. Musafer for petitioner.
Douglas Premaratne Addl. Solicitor-General with Sri Skandarajah StateCounsel for respondents.
(N.B. Counsel for respondents was not heard as admittedly written submis-sions had not being filed in terms of Rule 35 (b) of the S.C. Rules)
Cur. adv. vult.
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SEPTEMBER 05,1991Kulatanga, J.:
The petitioner-appellant (hereinafter referred to as the peti-tioner) appealed to the Court of Appeal for an order in thenature of a writ of mandamus directing the respondents (TheUniversity of Kelaniya and the Members of the Senate of that.University) to take steps necessary for the conferment Of thedegree of Doctor of Letters on him. The petitioner was amember of the academic staff of the former VidyalankaraCampus of the University of Sri Lanka established under theprovisions of the University of Ceylon Act, No. 1 of 1972 (nowUniversity of Kelaniya under the provisions of the UniversitiesAct, No. 16 of 1978). Pursuant to an application made by thepetitioner on 25.01.1976 the Faculty of Arts of the Vidyalan-kara Campus provisionally registered him on 02.07.1976 as acandidate for the award of D. Litt. Degree on his thesis titled“Sinhala Vocables of Dutch Origin”. Prof. J. Honda of theUniversity of Utretcht Holland and Prof. Heinz Bechert ofGottingen University West Germany were appointed examin-ers to evaluate the petitioner’s thesis; At the request of Prof.Bechert the petitioner submitted his other research works andpublications for the purpose of evaluating his candidature forthe D.Litt. Degree, On 11.10.76 Prof. Honda approved thegranting of the Degree on the petitioner. This was followed bythe approval of Prof. Bechert on 19.04.77.
Notwithstanding the recommendations of the two examin-ers, further steps were not taken to confer the degree sought;but by his letter dated 09.06.1977 (Exhibit ‘G’) President of theVidyalankara Campus informed the petitioner that action hadbeen stayed on the direction of the Vice-Chancellor until regu-lations are formulated by the Senate for the conferment ofdegrees. This was followed by numerous representations by thepetitioner to the then University of Ceylon and thereafter tothe University of Kelaniya. He contended that the University
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mwas both competent and obliged to confer the degree but theauthorities of these Universities failed to do so. Consequently,the petitioner made this application to the Court below.
The University of Ceylon was empowered by s 4(h) of Act,No. 1 of 1972 to confer on persons who are employed on the staffof the University, degrees in accordance with the procedureprescribed by rules made by the authorities and other bodiesof the University in terms of the provisions of s. 36; andaccording to the records of the Vidyalankara Campus theCommittee of the Sinhala Department considering the peti-tioner's application for the D.Litt. Degree decided on10.03.1976 that —
“The Senate had approved and published rules and regu-lations regarding the procedure to be followed for theconferment of the Degree of Doctor of Letters. Accord-ingly as only printed books and articles of outstandingresearch work will be considered for the award of thisDegree, such printed publications should be forwardedto the Examinations and Academic Branch”.
The relevant rules relied upon by the petitioner have beenproduced marked 'A'. These are rules approved on 28.12.1962by the Senate of the Vidyalankara University established underthe provisions of the Vidyodaya and Vidyalankara UniversityAct, No. 45 of 1958. It is common ground that the said ruleswere repealed with the repeal of that Act by the Higher Edu-cation Act, No. 20 of 1966; there is also no provision in therepealing Act to keep alive the rules approved under therepealed Act. It was under these rules that all the steps for theexamination of the petitioner for the D.Litt. Degree weretaken.
The Court of Appeal held that the rules produced marked‘A’ had no legal validity in 1976 and the Vidyalankara Cam-pus when it purported to accept the application of the peti-tioner for the D.Litt. Degree in 1976 was acting outside the
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powers given to it under the statute; that as such the Univer-sity was not under a legal duty or obligation to confer adegree and the petitioner had no legal right in that regard,enforceable by mandamus.
The petitioner contended that the rules marked ‘A’ haveforce by virtue of s. 81 (7) of Act, No. 1 of 1972 which reads
81 — ‘‘Subject to the provisions of this Act and of anyappropriate instrument, the following provisionsshall apply as from the date on which an old Univer-sity and the Secretariat of the National Council ofHigher Education become a section of the University-
(7) All statutes, ordinances and rules made by theAuthorities of the old Universities and the NationalCouncil of Higher Education shall be deemed to bestatutes, ordinances and rules made by the Universi-ties’*
The petitioner took up the position that s.81(7) of the Actresuscitated the rules made in 1962. This would require theexpression “old Universities” in s.81(7) to be interpreted toinclude the Universities which existed at any time prior to theenactment of the University of Ceylon Act, No. 1 of 1972. Ifthat interpretation is correct then s.81(7) would revive therules marked ‘A’; and the University had acted within its pow-ers and incurred a statutory obligation to proceed with thesteps for confering the degree sought by the petitioner.
It was argued that with the enactment of the UniversitiesAct No. 16 of 1978 the obligation so incurred devolved on theUniversity of Kelaniya in terms of the provisions of s.139 ands.141(3) of the Act. Under s.139 Vidyalankara Campus isdeemed to be a University established under this Act and it isgiven the name “University of Kelaniya”. Under s. 141(3) allobligations incurred by the old University shall be deemed to
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be incurred by a Higher Educational Institution establishedunder this Act which in the instant case will be the Universityof Kelaniya. The petitioner also invoked the provisions ofs.6(3) (b) and (c) of the Interpretation Ordinance (Cap.2) infavour of the continuity of the obligation.
The Court of Appeal rejected the petitioner’s interpretationof s.81(7) of Act, No. 1 of 1972 in view of the definition of“old University” in s.87 in terms of which it means any Uni-versity established or deemed to be established under Act, No.20 of 1966. The Court was of the view that “rules” saved bys.81(7) of Act, No. 1 of 1972 are those made by such a Univer-sity after the coming into operation of Act, No. 20 of 1966 andthat s.81(7) did not revive the rules marked ‘A* made in 1962which were therefore devoid of statutory force; there was stat-utory demise of these rules after which no fresh rules weremade under the provisions of Act, No. 20 of 1966; and in theabsence of any rules in the matter, the University did not incura statutory obligation in 1976 towards the petitioner and henceno obligation devolved on the University of Kelaniya to com-plete the incompleted steps for the conferment of a degree onthe petitioner. In the result the Court of Appeal dismissed thepetitioner’s application but gave leave to appeal to this Courton the question whether under s.81(7) of Act, No. 1 of 1972the rules made by the Authorities of the Vidyalankara Univer-sity even prior to 1966 were deemed to be rules made by theUniversity of Ceylon established under Act, No. 1 of 1972.
At the hearing before us it was pointed out that the respon-dents had failed to file written submissions and in terms ofRule 35(b) they are therefore not entitled to be heard. Mr, P.L, D. Premaratne, learned Additional Solicitor-General for therespondents stated that he has no explanation for the failure tofile written submissions except to state that when they weredue the brief was not with the Attorney-General. Accordingly,we only heard the submissions of Mr, H. L. de Silva PC,learned Counsel for the appellant. He reiterated the petition-er’s submissions made before the Court of Appeal and drew
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our attention to s.87 of Act, No, 1 of 1972 which defines “oldUniversity” as any University established or deemed to beestablished under Act, No. 20 of 1966. He submitted that theVidyodaya University established under Act, No. 45 of 1958 isan old University contemplated by s. 81(7) of Act, No. 1 of1972; that on an interpretation of this section the rules madein 1962 by the Vidyodaya University are deemed to be rulesmade under Act, No. 1 of 1972; and that the section refers torules made before and after 1966. He submitted that this wasdeliberate because there were no rules made under Act, No. 20of 1966.
In the alternative the learned President’s Counsel raised anew ground in support of the petitioner’s claim which groundhe conceded has not been urged in the application for leave toappeal. He invokes the doctrine of promissory estoppel whichis derived from a principle of equity of ancient origin. Hesubmits that inasmuch as the University of Ceylon held out tothe petitioner in 1976 that there were rules approved by theSenate governing the procedure for the conferment of theD.Litt. Degree, the University of Kelaniya is now estoppedfrom declining to complete steps in that regard on the groundthat no such rules had been made. He cited Halsbury Vol. 164th Ed. p. 1017; Attorney-General of Hong Kong v. Ng YuenSbiu (1) and R. v. Secretary of State for the Home Depart-ment, ex parte Khan (2).
On the question of the interpretation of s.81(7) of Act, No.1 of 1972, 1 agree with the opinion of the Court below that itonly contemplates rules made after the coming into operationof Act, No. 20 of 1966. That interpretation is in accord withthe plain meaning of words used in the enactment. If as sub-mitted by Counsel Parliament intended to resuscitate the rulesmade even prior to the enactment of Act, No. 20 of 1966 Par-liament would have employed words which are clear andunambiguous. In the absence of such language I hold thats.81(7) preserved only those rules which were made under theprovisions of Act, No, 20 of 1966; and that the rules marked
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‘A’ made in 1962 which were repealed along with its enablingAct, No. 45 of 1958 were not revived by that section. As suchthe said rules have no statutory force in 1976 and the Univer-sity incurred no statutory obligation when it purported toentertain the petitioner’s application for a degree in terms ofthese rules.
In the absence of rules, the only statutory basis for thepetitioner’s application for a degree in 1976 is s.4(h) of Act,No. 1 of 1972 which empowers the University to conferdegrees on persons who are employed on the staff of the Uni-versity; therefore the most that the petitioner would be entitledto by way of a writ of mandamus will be a direction to theUniversity of Kelaniya to consider his application for a degreesince all those steps taken under the rules marked ‘A’ have tobe disregarded as being invalid. But Mr. de Silva PC informedus that the case for the petitioner is that he is entitled to adegree; that all that is left for the University to do is to conferthe degree which is a ministerial act; and that the petitionerprays for a direction accordingly ordering the respondents toproceed to confer the degree. In the light of my findings thepetitioner has failed to ■ establish that the respondents aresubject to any public or any statutory duty which entitles thepetitioner to the order he seeks to obtain. I am inclined to theview that even if the rules marked ‘A’ have statutory force thepetitioner has no such absolute right to a degree as he claims,to the exclusion of any discretion exercisable by the competentbody in that regard.
I now come to the other ground for relief namely, promis-sory estoppel which was urged for the first time before us. InAlbert v. Veeriahpillai (3) it was held that the cumulativeeffect of Articles 118 and 127 of the Constitution enable theSupreme Court to allow an appellant to urge before it groundsof appeal other than the one on the basis of which the Courtof Appeal granted leave, if the material on record warrants thedetermination of the same, subject however to the limitation
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that it may not permit a party to raise a new point if the otherparty has had no proper notice of the new ground, or wouldsuffer grave prejudice by the belated stage at which it is raised.The appellant has not given any notice to the respondents ofthe point he now raises. It seems to me that in the circumstan-ces of this case it would also cause much prejudice to therespondents if they are directed on the basis of this point toconfer a degree on the petitioner. It would create a situationwhere the University would be compelled to confer a degree byestoppel. It would not be in the general interest of Universityeducation; and even if estoppel is relevant such a situation isundesirable and should preferably be avoided. I am thereforeof the view that this Court should not entertain the newground. But as we have heard Mr. de Silva PC on it I wouldlike to examine the merits of his submission.
Promissory estoppel is based on a clear promise or assu-rance given on the basis of which one party has acted to hisdetriment in respect of the legal relations between the parties.Once this happens the person who gave the promise or assu-rance cannot revert to their previous legal relations but hemust accept their relations subject to the qualification whichhe himself has so introduced. This doctrine applies to publicauthorities. Halsbury Vol. 16 4th Ed. p. 1017; Wade Adminis-trative Law 6th Ed. p.261. One of the qualifications to thisdoctrine mentioned by Halsbury is that the promisor can resilefrom his promise on giving reasonable notice giving the promi-see a reasonable opportunity of resuming his position.
It was on 09.06.1977 that the petitioner was informed ofthe suspension of action on his application until regulationsare formulated by the Senate for the conferment of degrees;but the petitioner was not prepared to accept this position. Hepersisted in his demand that he is entitled to the degree andcontinued his correspondence even after the enactment of Act,No. 16 of 1978. In a reply dated 11.03.1982 (Exhibit S.(l) theVice – Chancellor of the University of Kelaniya informed thepetitioner as follows.:
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“The Senate of the University of Kelaniya has not yetformulated rules governing the award of the Degree ofDoctor of Letters.
The former Senate House also did not have such regula-tions on which to judge the award of such degree andwhich were acceptable to the Senate.
Whilst not detracting from your ability and competenceas a scholar, you must realise that I am bound by theregulations and rules of conduct laid down by theSenate”.
Thus the authorities had as early as June 1977 given noticeto the petitioner that they were resiling from the promise, ifany, given to the petitioner. That was done on a seriousground namely the absence of rules. I am inclined to the viewthat this was reasonable notice in view of the fact that in theabsence of rules the University lacked the power to considerthe petitioner’s case. The petitioner did not insist on rulesbeing made but persisted in his demand for the conferment ofa degree and eventually complained to the Court below. In allthe circumstances, I do not think that the petitioner caninvoke the doctrine of promissory estoppel against therespondents.
The decisions in Attorney-General of Hong Kong v. NgYuen Shiu (1) and R. v. Secretary of State for the HomeDepartment, ex-parte Khan (supra) cited by the Counsel forthe petitioner are of no assistance. In the first case an orderfor the removal of the petitioner from Hong Kong under itsimmigration laws was challenged and in the second case anorder refusing the entry of a foreign child to the United King-dom for adoption was challenged. The ground of challengewas that these orders had been made without giving a properhearing in breach of an undertaking by the authorities as tothe procedure they would follow giving rise to a legitimateexpectation in that regard. These decisions have no application
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to the instant case where the defence of the respondents relatesnot to the petitioner’s right to be heard but to the lack of sta-tutory authority to confer degrees. In fact in the first of thedecisions cited the Privy Council held that a public authorityis bound by its undertakings as to the procedure it would fol-low, provided those undertakings did not conflict with its statu*tory doty (1983) 2 All ER 346 at 351)
There is also the qualification that estoppel cannot legiti-mate ultra vires action. Thus Wade Administrative Law 6thEd. p.262 observes —
“In public law the most obvious limitation on the doc-trine of estoppel is that it cannot be invoked so as togive an authority power which it does not in law pos-sess. In other words no estoppel can legitimate actionwhich is ultra vires”.
For the foregoing reasons, I affirm the judgment of theCourt of Appeal and dismiss the appeal. In the circumstancesof this case, I am of the view that each party should bear hiscosts and hence make no order as to costs.
Amerasinghe, J. —I agree.
Dheeraratne, J. —I agree.
Appeal dismissed.
