SC Surendranv. The University Grants Commission and Another (Fernando, J.)353
The document 1R3 gives the aggregates obtained by the first 100students in the Physical Science stream for each of the five years1986-1990, from the Colombo, Jaffna and Kandy Districts. Althoughthe submissions referred to 1985 as having been a 11 normal “ year,the figures for 1985 have not been furnished. This document wasrelied on as showing an unusually improved performance by studentsof the affected Districts ; however only the Jaffna figures have beenfurnished. I indicated to the learned Deputy Solicitor General that aproper statistical analysis was essential in order to make any rationaldeduction from these figures, but it appeared that no such analysishad been done. The entries relating to the best candidate in eachof tfiese years seemed to contradict the position that the performancesof Colombo candidates was consistent with past years, while Jaffnacandidates had performed better.
Colombo showed an improvement with reference to an “unsettled"year (1989), as well as a ' normal * year (1986). Jaffna showed adecline in relation to all previous years. Hence a much closer scrutinyof these figures was necessary. The learned Deputy Solicitor Generalwas unable even to furnish the average marks of each of thesegroups of 100 candidates. Hence his conclusion that these figuresshowed an unusual improvement in respect of the Jaffna Districtremained a mere assertion. However I have endeavoured to comparethe performance of the first 25 students in Jaffna and Colombo onthe basis of their average marks :
1986 1987 1988 1989 1990
Colombo 326.4 319.8 310.9 307.9 314.1
Jaffna 314.4 311.5 313.5 313.4 318.2
These figures appear to suggest a declining trend in Colombo,with a slight improvement in 1990 ; and an almost constant levelin Jaffna, with a similar improvement in 1990 ; they also show that
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in three successive years Jaffna candidates scored three to five marksmore than Colombo candidates. This cannot be explained away byany assertion that 1985 and 1986 were " normal “ years ; quite apartfrom the absence of the 1985 figures, it is a matter of commonknowledge that education was disrupted in 1987 to 1989 in Colombo(and in some other Districts), while the unrest in Jaffna did notseriously affect schools; the performance of candidates from Colomboin 1990 may well have been adversely affected by the disruption oftheir education in 1988 and 1989.
However, a comparision of the performance of the other candidatesdoes suggest that in the Colombo District performance in 1990 wasabout the same as in the previous year, while. Jaffna candidatesperformed better in 1990 (scoring about twelve marks more than in1989) ; the performance of candidates Nos. 25, 50, 75 and 100 wereas follows :
No. 1986 1987 1988 1989 1990
COLOMBO 25 311 302 295 297 298
50 293 281 277 283 284
75 280 272 268 275 276
100 269 265 262 268 269
JAFFNA 25 299 287 302 297 307
50 278 272 284 282 294
75 265 256 273 273 285
100 255 242 261 264 278
These figures suggest that in 1990 these Jaffna candidates scoredabout 9 marks more than their Colombo counterparts (compared withan average of four marks more in the case of the first 25 candidates).This does not seem a sufficiently significant difference to warrant acorrection.
Even if the performance of Jaffna candidates had been unusuallybetter than in preceding years, the appropriate arithmetical remedy(assuming this to be legal) would have been to discount theaggregates of Jaffna candidates by a corresponding percentage; e.g.if their performance had been found, after a proper statistical analysis,to be 10% better (or 20 marks more) than candidates at the August
SC Surendran v. The University Grants Commission and Another (Fernando), J. 355
examination, their aggregates should have been reduced by 10% (or20 marks). Admissions should then have been determined byreference to the Merit and District Quotas. The arbitrary “sub-division"of the Merit Quota, by reference to the ratio of eligible applicants,does not bear any rational relationship to the extent by whichperformance in April was better than in August. Further, if the Aprilexamination was in fact easier, equality before the law would requireother adjustments as well : for example, if a student had scored 40in each of the four subjects in April, while another had scored 28in the same subjects in August, it would be unfair to treat the formeras having passed in all four subjects while treating the latter as havingfailed. The remedy applied by the 1st Respondent created a muchgreater distortion, as the following figures (of students selected andthe minimum aggregate for admission) demonstrate :
1989 1990
JAFFNA 68 (277)59 (277) 59 (281)89 (281) 92 (271)61 (290)
In seeking to correct an apparent discrepancy of five or six marksin performance between the two examinations, the 1st Respondentseems to have created a gross distortion of 19 marks by the "sub-division " of the Merit Quota.
I therefore find that the documents produced by the Respondentsdo not support their submissions. There has been no proper analysisby the 1st Respondent of the raw statistical information containedin the several documents produced, in an endeavour to overwhelmthe Court by, as it were, feeding it a diet of undigested (and seeminglyindigestible) figures.
It appears to me that the methods used by the 1st Respondentare seriously flawed for several reasons. The object was to comparethe performance of candidates from the affected Districts at the Aprilexamination, vis-a-vis preceding years, as against the performancesof candidates from the other Districts at the August examination,vis-a-vis preceding years.
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It seems desirable that the performance of all candidates, andnot merely of those eligible for University admission, shouldhave been considered.
However, assuming that this was too big a task, the perform-ance of all eligible candidates should have been considered;not merely a small section of them. Such a comparison shouldhave been according to a statistically acceptable method, possiblyby ascertaining the arithmetical mean or average, and perhapsalso the median, for each category for each of the years inquestion.
Even if (and this I cannot accept) it was permissible to comparea section or sample from each category, such section or sampleshould have been duly representative ; thus a comparison ofthe performances of only Jaffna candidates vis-a-vis onlyColombo candidates could not give a correct picture of the Aprilexamination in relation to the August examination ; further, evenif the Jaffna and Colombo candidates could have been regardedas truly representative (which I doubt) of the affected and otherDistricts respectively, an appropriate percentage should havebeen compared. Since there were 571 and 1,853 eligiblecandidates in the two categories, 100 candidates (i.e. 17.5%from the first category could not properly be compared with100 (i.e. 5.4%) from the second.
Arbitrary assumptions have been made that 1985 and1986 were " normal " years and that 1987 to 1989 were" unsettled * years, although the several Districts would havebeen differently affected in those years.
Since two of the subjects (Physics and Chemistry) werecommon to the Biological Science stream (which includedMedicine) and the Physical Science stream, it is difficultto understand why the 1st respondent did not find a similardisparity in performance in the former. I
I therefore hold that the Petitioner's fundamental right to equalityhas been infringed by the " sub-division * of the Merit Quota on ageographical basis. The 1st Respondent's decision was not onlywrong in law, but was based on factual inferences incorrectly drawnfrom incomplete statistical data. I have given anxious consideration
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to the question of relief. Clearly the Petitioner should have beenadmitted to a University for a course in Engineering I. Should others,similarly placed, who did not apply to this Court be treated as havingacquiesced in the infringement of their fundamental rights ? Shouldstudents who have been selected under the new scheme, and whoare not parties to this application (and of whose names the Petitionerwould have been unaware), be prejudiced by their admissions beinginvalidated? I am conscious that in Perera v U.G.C. the 1stRespondent's decision to adopt the ratio basis of selection wasquashed, and the Court directed that the two examination beconsidered jointly ; but the fact that successful candidates had notbeen heard was not referred to. In that case there were plausiblegrounds for differentiating between two examinations : that both thesyllabi and the standards were different. Here there are none. TheRules required that the two examinations be jointly considered. The1st Respondent's inferences from the statistical information werewrong, and in any event the proposed remedy was quite arbitrary.
It is well known that social and political unrest of the not-so-distantpast was only related to alleged unfairness in University admissions(see Seneviratne v U.G.C. at p. 211). Justice must not only be done,but must be seen to be done. And in the field of higher educationthis requires that the system of University admissions, both asformulated and as implemented, must not only be fair but seen tobe fair. I therefore consider that granting the Petitioner relief personallywould be insufficient, and that it is just and equitable that the entirescheme of admission be set aside. I
I therefore hold that the Petitioner's fundamental right under Article12(1) has been violated by the 1st Respondent by reason of the" sub-division " of the Merit Quota. I quash the 1st Respondent’sdecision to sub-divide the Merit Quota, and direct the 1st Respondentto select candidates for admission to Universities for courses inEngineering, in accordance with Rule 29. The Petitioner will be entitledto costs in a sum of Rs. 5,000.
WkJETUNGA, J. – I agree.
Relief granted.