036-SLLR-SLLR-1993-1-SURENDRAN-v.THE-UNIVERSITY-GRANTS-COMMISSION-AND-ANOTHER.pdf
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SURENDRAN
v.THE UNIVERSITY GRANTS COMMISSION AND ANOTHER
SUPREME COURT.
FERNANDO, J.
GOONEWARDENA, J. ANDWIJETUNGA, J.
S.C. APPEAL NO. 480/92.
JANUARY 13th AND 15th, 1993.
Fundamental Rights – Right to equality before the law – Article 12(1) of theConstitution.
The petitioner complained of the infringement of his fundamental right to equalitybefore the law under Article 12(1) by reason of the failure of the UniversityGrants Commission (the 1st respondent) to admit him to a University to followa course of study in Engineering. He prepared for the G.C.E. (A./L) examinationto be held in August 1990 from the Jaffna District. However that examinationwas not held in that month in the District of Jaffna, Kilinochchi, Mannar, Mullaitivuand Vavuniya, and also in certain parts of the Districts of Trincomalee, Batticaloaand Ampara because of prevailing unrest. In April 1991 an examination was heldin those areas on the same syllabi headed * General Certificate of Education
SC Surendran v. The University Grants Commission and Another (Fernando, J.)345
(Adv. Level) Examination August 1990 (Special 1991). There was no indicationthat this examination would be treated in any way different to the August 1990examination. The petitioner secured an aggregate of 276 marks.
Rule 29 of the Rules Relating to Admission to Undergraduate Courses in theUniversities read as follows.
admissionison the results of the G.C.E. A./L Examination. Where
more than one examination has been held in a particular year, the results ofall the examinations held in that year, will be jointly considered for this purpose*.
The petitioner contended that by virtue of this rule the August 1990 and April1991 examinations should have been jointly considered. The petitioner was notselected for Engineering I or Engineering II '.
Held :
There can be no discrimination as between the August and April examinations.Candidates who sat for the April examination had a legitimate expection that Rule29 would not be departed from.
The petitioner's fundamental right to equality was infringed by the sub-divisionof the Merit Quota on a geographical basis.
Cases referred to :
Seneviratne v. U. G. C. [1978-79-80] 1 Sri LR. 170, 211.
Ramupillai v. Minister of Public Administration [1991] 1 Sri LR. 11, 61.
Perera v. U. G. C. [1978-79-80] 1 Sri LR. 128.
APPLICATION for infringement of fundamental rights.
R. K. W. Goonasekera with Mano Devasagayam and W. S. Senthilnathan forpetitioner.
D. P. Kumarasinghe D. S. G. for respondents.
Cur. adv. vult.
March 26, 1993.
FERNANDO, J.
The Petitioner complains of the infringement of his fundamental rightto equality before the law under Article 12 (1) by reason of the failureof the University Grants Commission," the 1st Respondent", to admithim to a University to follow a course of study in Engineering. The
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Petitioner had been preparing for the G.C.E. (Advanced Level)examination to be held in August 1990, from the Jaffna District.However that examination was not held in that month in the Districtsof Jaffna, Kilinochchi, Mannar, Muliaitivu and Vavuniya and also incertain parts of the Districts of Trincomalee, Batticaloa and Ampara(“the affected Districts"), because of prevailing unrest. An examinationwas later held in those areas in April 1991, on the basis of thesame syllabi; the question papers for that examination were headed’ General Certificate of Education (Adv. Level) Examination, August1990 (Special – 1991)there was no indication that this examinationwould be treated as being in any way different to the August 1990examination. The Petitioner secured an aggregate of 276 marks atthat examination, and having satisfied the minimum requirements forapplication for admission to a University, duly applied for admission,indicating Engineering I, Engineering II, Quantity Surveying, and Law,in that order of preference, as the courses of study for which hewished to be considered. The Petitioner's grievance is that the 1stRespondent's" Rules Relating to Admission to Undergraduate Coursesin the Universities ", for the academic year 1991/92 (“1R1") had notbeen observed. Rules 2 and 29 provide :
"2. The following admission policy will apply in respect of theAcademic year 1991/1992.
Admission will be done on the basis of raw aggregate marksobtained by eligible candidates at the G.C.E. (A/L) Exami-nation held in 1990
(1) Merit Quota
In admitting students to courses of study other than Arts,40% of the available places will be filled in the orderof marks compiled on an all-island merit basis.
(2) District and Educationally disadvantaged District quota
In the case of Medicine, Biological Science, PhysicalScience, Management Studies and Commerce
SC Surendranv. The University Grants Commission and Another (Fernando, J.)347
In the case of all other courses of study, the numberof places allocated to each district shall be thenumber of places it would have secured under thecriteria applied for the academic year 1989/90 andit will be ensured that no student from any districtis at a disadvantage as a result of the new admissionpolicy."
"29 admissionison the results of the G.C.E.
(A/L) Examination. Where more than one examination has beenheld in a particular year, the results of all the examinations heldin that year, will be jointly considered for this purpose."
Although Rule 29 refers to examination held "in" that year, it wasnot suggested that this referred only to examinations held during aparticular calendar Year ; it refers to the examinations held for thepurposes of admission in respect of a particular academic year.Accordingly, says the Petitioner, the results of the August 1990 andApril 1991 examinations should have been jointly considered, i.e. withno distinction whatever between the two examinations ; the 1stRespondent however treated the April 1991 examination as beinga distinct and separate examination, and did not duly apply Rule2(c) ; consequently the Petitioner was not selected for EngineeringI or Engineering ll.The effect of Rule 2 is that 40% of the availableplaces will be filled on the basis of all-island merit, and the remaining60% according to quotas allocated (in proportion to population) tothe 25 administrative Districts, subject to an adjustment which isnot relevant to the present dispute. In making selections in accordancewith the aforesaid quotas, allowances had to be made for two matters.Firstly, if in respect of the last vacarfcy, there were several studentswho had obtained the same aggregate, all such students would beselected. Secondly, a certain number of places had to be reservedfor " exceptional " cases provided for by Rules 43 to 56 (21 forEngineering 1 and 3 for Engineering II). There is some doubt as tothe number of places available for Engineering I (either 611 or 570)and Engineering II (either 106 or 100). The 1st Respondent madeselections on the basis that the number of places available, aftermaking those two allowances, was 504 for Engineering 1 and 87 forEngineering II ; thus the 40% Merit Quotas amounted to 202 and35 respectively.
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In 1980 the District Quota system ("intended to be a temporarymeasure, valid for admission in 1979, and to be reviewed thereafter")was held not to be unconstitutional (Seneviratne v. U.G.C., (1> ; inRamupittai v. Minister of Public Administration,(2). I expressed doubtas to its constitutionality a decade later. However, the Petitioner doesnot question the District Quota system in this application, as hisposition is that whether admission is solely on merit, or on the Merit-cum-District Quotas system, he was entitled to admission.
There were 202 candidates who obtained 281 marks or more ;34 candidates who obtained between 277 and 280 marks ; and 11candidates (including the Petitioner) who obtained 276 marks. If thetwo examinations had been considered together, the 202 candidateswho obtained 281 marks or more would have been selected on theMerit Quota for Engineering I. (Of these, 59 would have been fromColombo, and 89 from Jaffna.) Thirteen of the 34 candidates whoobtained between 277 and 280 marks, and four of the candidateswho obtained 276 marks, were from the Jaffna District ; the DistrictQuota for Jaffna appears to have been 17, so drat the Petitioner wouldprobably have been selected for Engineering I under that DistrictQuota. If not, he would definitely have been selected for EngineeringII, probaby on the Merit Quota (or at least on the Jaffna District Quota).
However the 1st Respondent treated the two examinations asdistinct, and apportioned the Merit Quota of 202 for Engineering ion the basis of the number of students applying for admission forEngineering I on the results of the August 1990 (1853) and the April1991 (571) examinations. On that ratio, 154 places were filled fromamong students who sat the August examination, and 48 from amongthose who sat the April examination. (This resulted in a completereversal – 92 being selected from Colombo, and only 60 from Jaffna.)In consequence of the Merit Quota being sub-divided between thetwo examinations, 28 students from the Jaffna District who wouldotherwise have gained admission under the (undivided) Merit Quota,failed to do so; instead 17 of them gained admission under the JaffnaDistrict Quota ; eleven of them, and other students who wouldotherwise have gained admission under the Jaffna District Quota,failed to do so. The Petitioner was one of the latter ; he was alsonot selected for Engineering II, in consequence of the apportionmentof the Merit Quota in respect of that course.
SC Surendran v. The University Grants Commission and Another (Fernando, J.)349
Learned Counsel for the Petitioner contended that under its ownRule 29, admittedly made after the decision of this Court in Pererav U.G.C. » the 1st Respondent was not entitled to treat the AprilExamination as being separate or distinct, and was not entitled tosub-divide the Merit Quota between the two examinations. In thatcase, consequent upon the abolition of the Higher National Certificateof Education (H.N.C.E) examination, two G.C.E. (Advanced Level)examinations were held in 1979 ; the April examination was theregular examination, and the August examination was a new exami-nation to meet the requirements of students who would otherwisehave sat for the H.N.C.E. These two examinations were different, andwere based on different syllabi. The 1st Respondent decided thatUniversity admissions in respect of the year 1980 should bebased on both these examinations. However, as the 1st Respondentconsidered that the two examinations were not of the same standard,and that there was no rational method by which the performanceof candidates could be jointly considered, it decided that the allocationof available places as between the two examinations should be inthe ratio of the number of students attaining the minimum requirementfor admission at each examination. On that basis, a ratio of 7.2:2.8was fixed. It was held : 11
11 Once the qualified students from both sources were clubbedtogether, they constituted one class and there could not be a classwithin that class. There came to exist only one source of selectionand not two sources of selection and there was no basis for anyclassification and no distinction could any further be made inselecting the best candidate for admission to the Universities. Thepreferential treatment of one source in relation to the other, basedon the differences between the said two sources, can no furtherbe justified. Also, there was no reasonable nexus between thedifferences in the two sources and the ultimate objective of selection,namely, to secure the best talent. The discriminatory ratio adoptedby the Respondent is thus violative of Article 12 of the Constitution.Allocation of places in the Universities on the basis of the ratiodecided on by the Respondent will result in candidates of an
inferior calibre from the April batch being selectedcandidates
of a superior calibre from the August batch not being selected.
In view of the fact that there is a larger number of candidatesthan places available in the Universities, the object being to securethe best possible material for admission to the Universities, merit
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is the only fair and satisfactory basis of selection. The Respondentitself recognised the excellence of the merit criterion by allocating30% of the available places on merit to be determined on anall-island basis. This object will be defeated by the ratio basisof selection. Selection of those who had obtained a less numberof marks in preference to those who had obtained a higher numberof marks in the examination who had been placed on par by theRespondent for purposes of qualifying for admission to theUniversities is fundamentally unjust and cannot be sustained. Thedifferences that are alleged by the Respondent to have existedin the two sources of admission are irrelevant for the ultimateselection." (p. 142)
The learned Deputy Solicitor General submitted that the 1stRespondent was entitled to depart from Rule 29 in order to preventinjustice ; that if a common merit list had been prepared for the twoexaminations only 104 applicants (out of 1,853) from among thosewho sat the August examination would have been selected on thebasis of merit for Engineering I, as against 106 applicants (out of571) from among those who sat the April examination ; the lattercandidates had the advantage of an additional eight months time forpreparation ; further, students who sat the April examination from theJaffna District had performed better than in preceding years, whereasthe performance of candidates from other Districts who sat the Augustexamination showed no significant improvement ; he submitted thatcandidates at the April examination had the opportunity of scoringmore marks. He conceded, however, that the 1st Respondent hadnot given any intimation whatsoever, prior to the April examination,that it would be treated as a separate examination or that the MeritQuota would be divided. He also conceded that at the Augustexamination (and indeed at all previous examinations) no distinctionhad been made between candidates sitting for the first time and thosehaving an additional year (or more) for preparation by virtue ofrepeating the examination.
The decision in Perera v U.G.C. compels me to hold that therecan be no discrimination as between the August and April exami-nations. Further the 1st Respondent adopted Rule 29 after thatdecision, thereby confirming the principle that there would be nodiscrimination between two like examinations. Candidates who sat forthe April examination had a legitimate expectation that this Rule would
SC Surendran v. The University Grants Commission and Another (Fernando, J.)351
not be departed from. The fact that, for any reason the 1st Respondentdecided to depart from that Rule did not result in a valid amendmentof the Rule (as suggested by the learned Deputy Solicitor General).Discrimination cannot be justified on the basis that candidates forthe April examination had eight months more time for preparation,because candidates who repeat these examinations are treated equallywith those who sit for the first time although they have twelve monthsmore, and that advantage has never been the basis of discriminationagainst them ; in any event the petitioner has urged that he hadto prepare for the examination under very difficult circumstanceswithout electricity, while kerosene oil, torch batteries, Candles, etc.,were scarce. If allowances have to be made for the difficulties underwhich children study, it will soon become necessary to make furtheradjustments to take account of the circumstances in which disadvan-taged students, even in normal times, have to study and prepare forexaminations. That exercise has to be carried out by reducingdisparities in educational facilities and opportunities, and not by imposingarbitrary quotas.
The learned Deputy Solicitor General also sought to justify the"sub-division" of the Merit Quota relying on the following factorsreferred to in the affidavit of the Chairman of the 1st Respondent.
' Performance levels of students who sat the special exami-nation compared to the performance levels of the otherdistricts – specially in the subject streams of Physical Sciencesand Commerce." (In support, the document 1R2 wasannexed) ;
“ The profile is different. The pattern of the results of theregular examination held in August matches with the previousyears." (In support, the document 1R3 was annexed) ;
" The level of admissions to various courses of study shouldbe maintained at satisfactory levels in the national interest,despite the unsettled situation in the country. Hence it wasdecided to maintain the average level of admissions in foelast 5 years. In 1987, 1988 and 1989 the G.C.E. (AdvancedLevel) Examinations were held under unsettled conditions inthe counfry. 1985 and 1986 were normal years. Therefore,foe 1st Respondent decided to maintain foe average level of
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admissions for the past 5 years." (In support, the documents 1R5
and 1R5A were annexed).
These submissions seek to " standardise " admissions in one yearby reference to performance in previous years ; this would be whollyunacceptable where only one examination had been held ; it is equallyunacceptable where two examinations are held, both being requiredby the relevant Rules, as well as the principle of equal treatment,to be treated as equivalent. However, I must point out that the" statistics " contained in the documents annexed do not support theassumptions on which these submissions are based.
The document 1R2 annexed in support of the first submission doesnot give any particulars in relation to Commerce. However, anotherdocument (1R4) entitled “ Minimum Marks for Selection for theVarious Courses of Study in respect of such District " shows thatin all the Districts, other than the affected Districts, the general patternwas that the minimum aggregate for admission to Engineering I,Engineering II, Physical Science and Commerce were considerablyless than for Medicine ; but in Jaffna admission for Engineering I,Engineering II, and Commerce required considerably more than forMedicine. Had the Merit Quota not been sub-divided, it is likelythat the Jaffna results would have shown a similar differential. Thedocument 1R2 shows the minimum aggregate required for admission(under the District Quota) from six Districts including Colombo andJaffna, over a five year period ; In five Districts the minimum aggregatefor admission for 1991/1992 was less than in the preceding four years,while in the Jaffna District alone it was higher. The Respondentssuggestion is that so many students from the Jaffna District performedbetter at the April examination that a much higher minimum markthan before was required. But this is equally consistent with an unfair"sub-division" of the Merit Quota, for that would result in an additionalnumber of students in the preferred Districts gaining admission onthe Merit Quota (i.e. with lower marks than if the Merit Quota wasnot sub-divided). Such students would otherwise have had to gainadmission through the District Quota ; consequently an equivalentnumber of additional students would gain admission through theDistrict Quota, again with lower aggregates than otherwise. Theconverse process would take place in the affected Districts, with theresult that the minimum aggregate required to gain admission throughthe District Quota would increase. 1R2 is therefore equivocal.
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 :
Candidate
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
UNDIVIDED MERIT QUOTA 1990
SUBDIVIDED MERIT QUOTA
COLOMBO
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
SC Surendran v. The University Grants Commission and Another (Fernando, J.)357
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.
GOONAWARDENA, J. – I agree.
WkJETUNGA, J. – I agree.
Relief granted.