SARATHCHANDRA vs. DHARMADASA

036-SLLR-SLLR-2006-V-3-SARATHCHANDRA-vs.-DHARMADASA.pdf


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SARATHCHANDRAVS.
DHARMAOASACOURT OF APPEALSRIPAVAN. J,
ERIC BASNAYAKE. J,
CA1473/2006 (WRIT),
DECEMBER 11.2006.
Writ of Certiorari – Students remaining in school after sitting Ordinary LevelExamination for a second time – Is it permissible?-Legitimate expectation -Remaining until re-correction results were released – Eligibility to beprovisionally admitted to the Advanced Level class?-Education Ordinance,section 37(d)-Abuse of the legal powers of Court?
The student (Petitioner) has not been successful in obtaining a pass inMathematics in any of the G. C. E. ‘O’ Level sitings in 2004/2005. He hadsought a re-correction in Mathematics on the 2005 results, and was permittedto stay in school and followed A Level Classes, and was also permitted torepresent the school in Rugby during this period.
The Petitioner sought to quash the letter by the 1st respondent, Secretary,Ministry of Education, addressed to the principal (4th respondent) intimatingthat it is contrary to Circular X3 to allow a student to remain in school aftersitting for the O/L Examination for a second time.
Held:
Rule 18 of the Circular issued in terms of section 18 of theEducation Ordinance requires six passes at the G. C. E. O’ Levelincluding language and Mathematics with three Credit Passesto admit students to the G C. E. ‘A Level classes.
A student who obtains five passes including three Credits andone compulsory subject (either language or Mathematics) willbe eligible to be provisionally admitted to the A/L class providedhe obtains the sixth pass at the next sitting.
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Sarathchandra vs. Dharmadasa
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If a student fails to obtain five passes with three Credits in the first
sitting he will not be eligible to be admitted to the A/L. class and inthat event after the results of the first sitting such student shouldleave school.
Held further:
The petitioner did not obtain the minimum qualification at the firstsitting – 2004 December,.Therefore the petitioner could be allowedto remain in school only until the 2004 December results werereleased.
The student was allowed to remain in school in violation of Rule 18.Per Eric Basnayake. J.
■When this application was supported the 4th respondent (Principal) wasrepresented. It appeared from the student that the 4th respondent wassupporting the cause of the petitioner; the petitioner was able to stay in schoolup till now with the approval of the 4th respondent”
The 4th respondent had failed to give effect to the Circular
The legitimate expectation is based on the result of the re-correctionof the Mathematics answer script. The results were sent to the 4threspondent on 25.09.2006 (the case was filed on 27.09.2006).
Once the result is known the petitioner would lose all ground to remainin school any longer.
Per Eric Basnayake. J.:
”By considering all the circumstances the only conclusion that this Courtcan arrive at is that the petitioner was aware of the re-correction result atthe time of filing this case in Court This case was filed to enable the petitionerto stay in school longer. The petitioner therefore sought refuge in a writapplication. I am of the view that this is a clear instance of abuse of the legalpowers of Court.
APPLICATION fora Writ of Certiorari.
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Faiz Musthapha PC with, J. C. Weliamuna, Ms. Faizer Mustapha Markerand Tushani Machado for petitioner.
Sathya Hettige PC Additional Solicitor General with Janak de Silva SSC for1st, 2nd, 3rd, and 5th respondents.
Viran Corea for 4th respondent.
Cur. adv. vult.
December 14,2006.ERIC BASNAYAKE J.
This application is concerning A. A. Niroshana Atigala, (hereinafter referredto as the petitioner) a student educated at Isipatana College, Colombo 05.The petitioner had sat for the G. C. E. (O/L) Examination in the years 2004and 2005 and obtained the following results as evident from P1 and P2.
December2004: Sinhala Language…. Credit
Social Studies….Ordinary Pass
Dancing….Credit Pass
History….Ordinary Pass
Development Studies….Ordinary Pass
December 2005: Buddhism…..Ordinary Pass
Sinhala….Credit Pass
Science and Technology …Ordinary Pass
Social Studies…Credit Pass
Dancing…Credit Pass
Business Studies and A/C …Ordinary Pass
The student has not been successful in obtaining a pass inMathematics in any of the sittings. He had sought a re-correction inMathematics on the results obtained in the December 2005Examination. When this case was supported in open court on
the learned President's Counsel submitted that he wasnot aware of whether the results had been released at the time. Atpresent the petitioner is following classes in the G. C. E. (A/L).
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Sarathchandra vs. Dharmadasa
(Eric Bannayake, J.)
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The student is seeking to quash a letter issued by the 1Respondent dated 20.09.2006 marked P10 addressed to the Principof Issipatana College (4th Respondent) intimating that it is contrarythe Circular marked P 3 to allow a student to remain in school aftsitting for the O/L examination for a second time. The petitioner allegtthat the letter marked P10 is illegal, null and void and of no force <avail in law due to the reasons set out in the petition.
Interpretation of the Circular P3This case involves the interpretation of the Circular marked P3.paragraphs 2, 7, 10 and 10 a-d, 17 and 18 of the petition and ttcorresponding praragraphs in the affidavit the petitioner had placereliance on this Circular. The whole case rests on the Circular. Ttpetitioner states that the Circular was issued in terms of Section c
of the Education Ordinance. The documents P1 to P10 too weiproduced in support of the Circular and especially Rule 19 (<*) i and
Rule 18
The said Rule 18 requires six passes at the G. C. E. (0.L) includirLanguage and Mathematics with three credit passes to admit studento the G. C. E. Advanced Level Class. A student who obtains fipasses including three credits and one compulsory subject (eithiLanguage or Mathematics) will be eligible to be provisionally admitsto the Advanced Level class provided he obtains the sixth pass at tt*next sitting.
Therefore it is clear that a student will be given the opportunity icompleting the examination only in the event of obtaining five passewith three credits including one of the compulsory subjects. If a studefails to obtain five passes with three credits on the first sitting he wnot be eligible to be admitted to the Advanced Level class and in th;event after the results of the first sitting such student should leave schoc
In this case the petitioner did not obtain the minimum qualificatiorat the first sitting which was in 2004 December. Therefore the petition!could be allowed to remain in school only until the 2004 results wei
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released. However the petitioner was allowed to remain in school inviolation of rule 18 of the Circular.
Re-correctionThe petitioner averred in the petition that he made an application forre-correction of his answer script on Mathematics. He averred that itis the practice in schools to permit students to remain in school untilthe results of the re-correction have been released. It is also evidentfrom P8 that the petitioner sought premission to remain in school untilthe results of the re-correction were released. The petitioner waspermitted to represent the school in rugby during this period.
The Petitioner averred that he had a legitimate expectation that hewould be permitted to remain in school until be obtained the re-correctionresults.
When this case was called to support in court on 11.12.2006, thelearned Additional Solicitor-General intimated to court that the resultsof the re-corection have been released and that the 4th Respondentwas informed of same on 25.09.2006. The learned Additional Solicitor-General was armed with documentary evidence of the results and thefact of informing of same to the 4th Respondent on 25th September2006. The learned President’s Counsel for the petitioner, amazingly,objected to the production of this document on the basis that it is anew document. However the learned President’s Counsel did notcontrovert the position taken by the learned Additional Solicitor-General. The result was the same at the re-correction and the petitionerfailed in Mathematics.
The present application was filed on 27.09.2006. This applicationwas originally supported in court on 29.09.2006. When this applicationwas supported in court on 29th September 2006 the 4th Respondentwas represented. It appeared from the start that the 4th Respondentwas supporting the cause of the petitioner. The petitioner was able tostay in school up till now with the approval of the 4th Respondent. The4th respondent had failed to give effect to P10. Furthermore the 4thRespondent has volunteered to give an undertaking to court not to act
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on P10 until the next date which was extended till to date. The petitionerwas able to stay in school till the present on the strength of thisundertaking.
The 4th Respondent in an affidavit filed on 05.10.2006 declared thatthe result of the re-correction had not yet been released. When thelearned Additional Solicitor- General pronounced in open court thatthe results had been released, the learned President’s Counselappearing for the petitioner was not keen to know what the result was.He did not want to know whether the petitioner hbd passed or failed.The learned President’s Counsel for the petitioner assisted court bysaying that he had no instructions on this awaited result. When hewas invited by court to obtain instruction from his client he declined.
The legitimate expectation of the petitioner is based on the result ofthe re-correction of the Mathematics answer script. The learnedAdditional Solicitor – General intimated to court that the result of there-correction was sent to the 4th Respondent on 25.09.2006. Thiscase was filed in court on 27.09.2006.
Once the result is known the petitioner would lose all ground toremain in school any longer. Therefore it is to the advantage of thepetitioner not to know the result or to pretend not to know. Byconsidering all the circumstances the only conclusion that this courtcan arrive at is that the petitioner was aware of the re-correction resultat the time of filing this case in court. This case was filed to enablethe petitioner to stay in school longer. The petitioner therefore soughtrefuge in a writ application. I am of the view that this is a clear instanceof abuse of the legal process of this court.
Circular P3 – Ultra Vires?
This case took another turn when the learned President’s Counselfor the petitioner began to attack the Circular that he himself wasrelying on. The learned counsel submitted that the Circular is ultravires and has no validity. Contrary to this submission the petitioneraverred in the petition that the Circular was issued in terms of section37(d) of the Education Ordinance. The petitioner sought to quash P10
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on the basis that it is contrary to the Circular especially Rule 18. Thepetitioner stated that P10 is illegal, null and void and of no force in asmuch as it was without jurisdiction etc. The petitioner never sought toquash the Circular marked P3. The petitioner never alleged that theCircular was ultra vires. Therefore the submission that the Circular P3is ultra vires is without any legal basis.
On the above reasons I am of the view that there is no merit in thisapplication. Therefore notice is refused.
Sripavan J. —/ agree.
Notice refused.