022-SLLR-SLLR-2004-V-1-VASANA-v.-INCORPORATED-COUNCIL-OF-LEGAL-EDUCATION-AND-OTHERS.pdf
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VASANAv
INCORPORATED COUNCIL OF LEGAL EDUCATIONAND OTHERSCOURT OF APPEALFERNANDO J. ANDAMARATUNGA, J.
C.A. 406/2002
MAY 8 and 20 and JUNE 17
and JULY 4, 2002
Writ of mandamus -Admission of student to Law College – Student informed thatadmission was provisionally approved for registration – Payments made – Mixup of marks – Subsequent withdrawal by Council – Legitimate expectation -When does it arise?
The petitioner sat the Law College Entrance Examination and was informed thather admission has been provisionally approved for registration and was alsodirected to deposit a sum of money to the credit of the Council of Legal Education.Later the Council had informed her that due to an error, her marks had beenentered as 70 when it was in fact 56, and as the cut off mark was 70, she is notqualified for admission.
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The petitioner contends that she had a legitimate expectation that she would be
admitted to the Law College.
Held:
The legitimate expectation of any candidate sitting for the Law CollageEntrance Examination is that if at the examination he scores the mini-mum mark necessary to gain admission to the Law College, he wouldbe admitted; accordingly earning the necessary minimum mark is thefoundation on which the legitimate expectation of a candidate rests.
If he fails to get the necessary minimum mark the legitimate expectationcannot exist any longer.
Per Amaratunga, J.,
‘When the basic ingredient necessary for the formation of a legitimateexpectation is marks over and above the cut off point is lacking the petition-er cannot rely on a document which contains a provisional decision whichhas been subsequently found to be a decision based on erroneous factualdata submitted to the Law College due to an inadvertant error committed byan examiner.”
APPLICATION for a writ of certiorari.
Romesh de Silva P.C., with Sugath Caldera for petitioner.
Bimba Jayasinghe Tilakaratne, Deputy Solicitor-General with Janak de Silva,
State Counsel and Milinda Gunatilake State Counsel for respondents.
Cur. adv. vult
March 22, 2004
GAMINI AMARATUNGA, J.The petitioner has filed this application with the ultimate object ofobtaining from this Court a mandate in the nature of a writ ofMandamus directing the Incorporated Council of Legal Education – anincorporated body – to admit the petitioner to the Sri Lanka LawCollege as a law student.
The facts relevant to this application are as follows. The firstrespondent Council is a body incorporated by statute for the purposeof supervising and controlling the legal education of law students whodesire to qualify to be admitted as attomeys-at-law of the SupremeCourt empowered to practise law in all Courts in Sri Lanka. Section 7of the Ordinance (cap 276 C.L.E. i 956 Revision) as amended by sub-
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sequent amendments, empowers the Council to make by laws, rulesand orders that are necessary for carrying out the object for which theCouncil was established.
In pursuance of this statutory authority, the Council has made thenecessary Rules and a copy of those Rules applicable during the peri-od relevant to this application has been produced by the 2nd respon-dent marked 2R6. Rule 23(1) of the said Rules is as follows.
“No person shall be admitted to qualify himself as an attorney-at-law of the Supreme Court unless… he …. has passed theentrance examination referred to in Rule 23(2) except where theCouncil decides not to hold the Entrance Examination in respectof any year.”
As explained by the material placed before Court and the submis-sions made at the hearing, the Council decides the number of stu-dents to be admitted to the Law College for any particular year. If thenumber of applications for admission for that particular year do notexceed the number of students to be taken for that particular year, theCouncil has the power under the aforesaid Rule to admit them to theLaw College without an entrance examination, provided that the appli-cants possess the other qualifications necessary to be admitted asLaw College students. If the number of applicants exceeds the num-ber to be admitted for that year, an examination is conducted to selectthe students to be admitted.
There were 2167 persons seeking admission in 2002. Thereforeon 16/9/2002 an Entrance Examination was held to select the stu-dents to be admitted in 2002. The Council has entrusted the task ofconducting this examination to Professor Mrs.Swarna Wijetunga,Education Consultant and the Dean of the Faculty of Education in theUniversity of Colombo. After conducting the examination and gettingthe answer scripts marked, she has entered the marks in the markssheets and submitted those marks sheets to the Sri Lanka LawCollege. The Council having considered the marks has decided toadmit all candidates who have scored 70 marks and above at theEntrance Examination held in 2001.
There were 344 candidates who have received 70 marks andabove. The 2nd respondent who is the Principal, Sri Lanka LawCollege, has thereafter sent letters, similar to the letter produced
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marked P1, informing those 344 persons that they have been provi-sionally selected to be admitted to the Sri Lanka Law College. Thepetitioner Miss.KAS.Vasana was a candidate who sat for theEntrance Examination held on 16/9/2002. Her index number was4565. She was among the 344 candidates who have received com-munications from the Principal, Sri Lanka Law College, informingthem that they have been provisionally selected to be admitted to theSri Lanka Law College. The communication received by the petition-er has been produced before this Court, marked P1. The 2nd respon-dent, Principal, Sri Lanka Law College, in his affidavit filed in thisCourt, has admitted that he has sent document P1 to the petitioner. Itis pertinent at this stage, to quote verbatim, paragraphs 1 and 2 of P1.Those two paragraphs read as follows.
‘This is to inform you that your application for admission to SriLanka Law College has been provisionally approved for regis-tration subject to confirmation by the Incorporated Council ofLegal Education and subject to verification of the educationalcertificates and other documents etc furnished by you”
Please note if it is discovered that you do not possess the req-uisite qualifications for admission to Sri Lanka Law College,your student registration will be cancelled, (emphasis added)
The petitioner in her petition has stated that along with documentP1, she received document P2, signed by the Principal, Sri LankaLaw College, which states that K.A.S.Vasana, Index No.4565 has 70marks obtained at the Entrance Examination and has been “provi-sionally selected.” The 2nd respondent, in his affidavit filed in thisCourt has admitted that he has sent document P2 to the petitioner.
The petitioner in her petition has stated that by document P1 thePrincipal, Sri Lanka Law College has directed that she should deposita sum of Rs.4575/- in the named Bank to the credit of theIncorporated Council of Legal Education and that in compliance withthis direction she deposited Rs.4575/-in the named Bank to the cred-it of the Incorporated Council of Legal Education. The petitioner hassubmitted to this Court proof of her payment (P3) made on21/12/2001. The petitioner in her petition has stated that when shewent to the Sri Lanka Law College on 6/1/2002, the Registrar of theCollege, Mr.Ranasinghe, surreptiously and fraudulently took the letter
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dated 10/12/2001 (Document P1) from her and informed her that shewould be notified by another letter regarding her registration as a lawstudent. The petitioner has stated that a letter in the form of P1 whichcontains phrases “provisionally selected” and “subject to confirmation”is in fact and in truth a letter informing the candidate that such candi-date had been successful at the entrance examination and that in thepast all candidates who had received such letters had been admittedto the Law College. The petitioner has stated that in view of the pastpractice followed by the Law College she had a legitimate expectationthat she would be admitted to the Law College. She has stated thatthe action of the Law College refusing to admit her as a student wasin violation of her legitimate expectation that she would be admitted tothe Law College and accordingly the refusal to admit her to the LawCollege was unreasonable, arbitrary, capricious and unjust. She hasaccordingly sought a writ of certiorari quashing the decision of theIncorporated Council of Legal Education refusing the petitioner’sadmission to the Sri Lanka Law College and a writ of mandamusdirecting the Incorporated Council of Legal Education to admit her tothe Sri Lanka Law College.
The Principal Sri Lanka Law College, who is also the Registrar tothe Council of Legal Education has filed objections to the petitioner’sapplication. He has set out the manner in which the EntranceExamination was conducted, the decision taken by the Council toadmit candidates who have received 70 marks and above and the factof sending P1 to the petitioner. Those particulars gathered from theaffidavit of the 2nd respondent have been set out in the earlier part ofthis judgment.
The 2nd respondent in his affidavit, supported by relevant docu-ments, has set out the events that took place after he sent letters sim-ilar to P1 to 344 candidates provisionally selected for admission.According to the 2nd respondent's affidavit after he sent those letterssimilar to P1 he received a fax dated 27/12/2001 (2R9) from one Mr.Jayasekara Weerakkody stating that he had sent pass marks to acandidate who did not sit the Entrance Examination. After receivingthis fax message he immediately caused an investigation to be madeby comparing the marks sheets with the answer scripts and found thatthere were several mistakes in the marks sheets made by theExaminer when marks were entered. The 2nd respondent has
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described those mistakes in detail in paragraph 12(h) to (m) of his affi-davit. It is not necessary for the purpose of this application to set outall those matters in detail and I shall only deal with the mistake rele-vant to the case of the petitioner.
When entering the marks the examiner has mixed up two markssheets, namely the marks sheet starting with Index No.4451 with themarks sheet starting with Index No 4551. The Examiner had inad- 130vertently entered the marks that should have been entered on themarks sheet starting with Index No. 4451 in the marks sheet startingwith Index No. 4551 and vice versa. Due to this mix up the marksreceived by candidate who had Index No. 4465 had been enteredagainst Index No. 4565 which was the Index number of the petition-er. The marks received by candidate who had Index No. 4566 hadbeen entered against Index No. 4466. Soon after this error wasdetected a letter dated 8/1/2002 (2R43) was sent to the petitionerinforming her that she had infact received 56 marks but due to anerror her marks had been entered in the marks sheet as 70. The peti- 140tiorier was accordingly informed that since the cut off point for admis-sion was 70 she was not qualified for admission. The petitioner wasalso invited to attend the office of the Law College and examine heranswer script and the relevant marks sheet. It is pertinent to note herethat in her petition, presented to this Court on 25/2/2002, the petition-er has not disclosed that she received the letter dated 8/1/2002(2R43). Even in her counter affidavit she has not denied havingreceived that letter.
The 2nd respondent in his affidavit has stated that in response tothat letter the petitioner, on or about 9th January 2002 visited his office 150along with a lady who was introduced as her mother and two attor-neys-at-law Mr. Hemanth Boteju and Mr. E.N.D. Upali and examinedher answer script and satisfied herself that she had received only 56marks. The petitioner has not disclosed this in her affidavit and notdenied this fact in her counter affidavit.
The 2nd respondent in his affidavit has stated that when he dis-covered the mistakes contained in the marks sheets he immediatelyinformed the Chairperson of the Council of Legal Education of the sit-uation and that he was directed to correct all mistakes. Thereafter thepetitioner’s father Mr. Wijayadasa Kulatunga attorney-at-Law, 160addressed communication dated 24.1.2002 (P6) to His Lordship the
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Chief Justice who is the Chairman of the Council of Legal Education.
This letter was placed before the Council on 31/1/2002 and theCouncil then appointed a Committee consisting of Mr. C.R. de Silva,
PC. Solicitor General, Mr. L. C. Seneviratna PC. and Mr. AjanthaAtukorala, President, BASL to look into the complaint of Mr.Wijeyadasa Kulatunga and report to the Council (2R50). TheCommittee having given a hearing to Mr. Kulatunga has reported tothe Council on 28/2/2002 that when the Committee met Mr.Kulatunga, it was explained to him that the error in regard to the 170results of'his daughter had been due to a bona fide mistake on thepart of the Examiner. Thereafter Mr. Kulatunga had asked for a guar-antee that his daughter would be admitted to the Law College at leastat some future date but the Committee had informed him that it wasunable to give such an undertaking. This is reflected in the copy of theMinutes of the Council for 28/2/2002 marked and produced 2R51. Thesame Minutes indicate that the Council having noted that the petition-er has filed a case in this Court has resolved to await the decision ofthis Court with regard to the petitioner’s matter.
Professor Mrs. Swarna Wijetunga who was entrusted with the task 180of conducting the Entrance Examination and entering the marks, byletter dated 30/1/2002, addressed to the Principal Law College, hasaccepted full responsibility for errors contained in the final markssheets of the Entrance Examination held in 2001. (2R47) She hasalso given an affidavit accepting full responsibility for those mistakes.(2R48)
The 2nd respondent has produced before this court, marked 2R 49,a true copy of the petitioner’s answer script at the EntranceExamination, 2001 under Index No 4565. At the hearing before us, wedirected the 2nd respondent to produce in Court the original answer 190script of the petitioner and in response to that direction the learned.Deputy Solicitor General produced in Court the petitioner’s originalanswer script. In open Court it was examined by the petitioner and herlawyers. Having examined the answer script, the petitioner before usin open Court admitted that it was her answer script and that she hadearned only 56 marks. We have earlier referred to the decision of theCouncil of Legal Education to admit to the Law College, for the year2002, those students who have received 70 marks and above at theEntrance Examination held in September 2001. Thus it is conclusive-
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ly established that at the Entrance Examination held in September 2002001, the petitioner has received only 56 marks, less than the mini-mum of 70 marks required for admission in terms of the decision ofthe Council of Legal Education.
After carefully considering the averments contained in the 2ndrespondent’s affidavit and the documents produced with it we are sat-isfied that entering the petitioners marks in.the marks sheet as 70 wasan inadvertent error committed by the Examiner and that steps havebeen taken to rectify that error after a proper investigation, in thecourse of which the petitioner had been given an opportunity toperuse her answer script and satisfy herself about the correct marks 210she had obtained at the Entrance Examination. We are also satisfiedthat the 2nd respondent has addressed P2 to the petitioner in view ofthe error contained in the marks sheet of which he had no notice atthe time he sent P1. After the 2nd respondent has ascertained the trueposition he has addressed the letter dated 8.1.2002 (2R43) to thepetitioner, informing her that she was not qualified to be admitted tothe Law College. In those circumstances we are unable to hold thatthe decision of the Sri Lanka Law College not to admit the petitioneras a law student was unreasonable, arbitrary capricious or unjust.
After the petitioner examined her answer script in open court and 220accepted that she had received only 56 marks, the argument pro-ceeded on this factual basis. The learned President’s Counsel arguedthat after the petitioner received P1 she had a legitimate expectationthat she would be admitted to the Law College. The petitioner’s con-tention was that in the past candidates who have received communi-cations similar to P1 have been admitted to the Law College notwith-standing the fact that those letters contained the phrases ‘provisional-ly selected’ and subject to confirmation’ and that P1 is a notification,infact and in truth and in reality a notification of her success on whichthe petitioner’s legitimate expectation is based.230
With respect we are unable to accept this argument for three rea-sons. Firstly the very words used in P1 indicate that it conveys a pro-visional decision and not a final, conclusive and an irrevocable deci-sion. In the earlier part of this judgment I have quoted paragraphs 1and 2 of P1. For the purpose of emphasizing the provisional nature ofP1,1 quote again those two paragraphs.
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“This is to inform you that your application for admission to theSri Lanka Law College has been provisionally approved for reg-istration subject to confirmation by the Incorporated Council of
. Legal Education and subject to verification of educational cer- 240tificates and other documents etc furnished by you”.
“Please note if it is discovered that you do not possess the req-uisite qualifications for admission to Sri Lanka Law College yourstudent registration will be cancelled.”
The above paragraph 2 clearly indicates that even after registra-tion, it is liable to be cancelled if it is found that the student had noqualification to be admitted to the Law College. Therefore withoutdoing violence to the language of those two paragraphs it is not pos-sible to hold that P1 conveys an irrevocable and a conclusive deci-sion.250
Secondly, the 2nd respondent in his affidavit has set out details ofinstances where candidates to whom communications similar to P1have been sent had been subsequently refused admission when itwas discovered that they did not possess the requisite qualifications.Therefore the petitioner’s contention that in the past those candidateswho have received communications similar to P1 had been invariablyadmitted to the Law College cannot be accepted as an absolute ruleor a practice.
Thirdly it is our view that the fact (ground) relied on by the petition-er to say that she had a legitimate expectation that she would be 260admitted to the Law College was not the sole ground upon which aproper legitimate expectation could have come into being. The can-didates who had appeared for the written examination had legitimateexpectation to be considered of their claims according to the Rulesthen in vogue. The lecjitimate expectation of any candidate sitting forthe Law College Entrance Examination is that, if at the Examinationhe scores the minimum marks necessary to gain admission to theLaw College, (as decided by the Council) he would be admitted to theLaw College. Accordingly earning the necessary minimum marks isthe foundation on which4 the legitimate expectation of a candidate 270rests. If a person fails to get the necessary minimum marks at theEntrance Examination, the legitimate expectation cannot exist any
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longer. There is no doubt that a candidate who has sat for theEntrance Examination and received a letter similar to P1 is entitled topresume thereby that his legitimate expectation has become a reality.However if it is proved that P1 has been sent due to an error and thatthe candidate has not received the minimum marks necessary, thefoundation on which the legitimate expectation rested ceases to exist.In such a situation, although the particular candidate can continue tohave an expectation, the law cannot consider it as a legitimate expec-tation. When the basic ingredient necessary for the formation of alegitimate expectation i.e. marks over and above the cut off point foradmission to the Law College, is lacking the petitioner cannot rely ona document which contains a provisional decision which has beensubsequently found to be a decision based on erroneous factual datasubmitted to the Law College due to an inadvertant error committedby the Examiner.
We have already held that the decision of the 2nd respondent thatthe petitioner was not qualified for admission to the Law College, con-veyed to her by letter dated 8/1/2002, was not unreasonable and notarbitrary. Accordingly we refuse to issue a writ of certiorari quashingthe decision contained in doqument 2R43.
A writ of mandamus is available against a public or a statutorybody performing statutory duties of a public character. In order to suc-ceed in an application for a writ of mandamus the petitioner has toshow that he or she has legal right and the respondent corporate,statutory or public body has a legal duty to recognize and give effectto the petitioner’s legal right. In the instant case the Council of LegalEducation has decided to admit to the Law College in 2002 all thosecandidates who have scored 70 marks and above at the EntranceExamination held in September 2001. The petitioner who hasobtained only 56 marks at the said Examination has no legal right tobe admitted to the Law College on the results of the said Examination.Accordingly there is no corresponding legal duty on the Council ofLegal Education to admit the petitioner to the Law College.
The most important principle to be observed in the exercise ofjurisdiction by Mandamus which lies at the very foundation of rulesand principles regulating the use of this extra ordinary remedy isbased on the distinction between duties of mandatory nature andthose which are discretionary in character. The respondents having
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acted fairly, reasonably and in accordance with the principles of nat-ural justice in affording an opportunity to the petitioner to examine heranswer script will not be compelled to admit the petitioner to LawCollege by this Court in the exercise of its discretionary jurisdiction. Inthe result the petitioner’s application for a writ of mandamusalso fails.
The incident which has given rise to this application was veryunfortunate. Human error was at the root of the whole incident. Wecan understand the mental pain and suffering the petitioner and themembers of her family had to undergo. But as pointed out earlier thereis no legal basis for us to grant the relief she has prayed for. Weaccordingly dismiss this application without costs.
FERNANDO, J.- I agree.
Application dismissed.
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