WANNIGAMA v. INCORPORATED COUNCIL OF LEGAL EDUCATION AND OTHERS

023-SLLR-SLLR-2007-V-2-WANNIGAMA-v.-INCORPORATED-COUNCIL-OF-LEGAL-EDUCATION-AND-OTHERS.pdf


SC Wannigama v Incorporated Council of Legal Education and Others 281
WANNIGAMAv
INCORPORATED COUNCIL OF LEGAL EDUCATION ANDOTHERSSUPREME COURT
DR. SHIRANI BANDARANAYAKE
AMARATUNGA, J.
BALAPATABENDI, J.
SC 20/2007SC SPL LA 9/2007CA WRIT 588/2006MAY 4, 2007JUNE 12, 2007
Writ of Certiorari – Administration of Sri Lanka Law College – Council ofLegal Education – Public body? – Legal right to the performance of a legalduty by party against whom mandamus is sought – Materia/ – Legitimateexpectation – Could a prerogative writ be refused on the ground ofadministrative inconvenience?
The appellant who sat the entrance examination in the Sinhaia medium wasinformed that he had obtained only 66 marks, and that he had not beensuccessful at the entrance examination as 69 was the cut off mark and 239candidates were selected on that basis. The appellant contended that 21students who had sat the examination in the Tamil medium were called foran interview and 11 candidates had been admitted to the Sri Lanka LawCollege, and alleged that they had been admitted, not according to themarks obtained at the entrance examination but according to theirperformance at the interview. Alleging that the process employed for theselection of the 7th – 17th respondent was ultra vires the rules of theCouncil of Legal Education, the appellant and 8 others challenged thedecision of the 1st respondent. The appellant's application was dismissedby the Court of Appeal.
In the Supreme Court, it was contended by the appellant that, the Court ofAppeal misdirected itself in fact and law in holding that there are twomediums of instructions in the Sri Lanka Law College – Sinhaia and Tamil,and the Court of Appeal was wrong in denying relief to the appellant, on the
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basis that his credit pass in the G C.E. O* Level examination is in theSinhala language and that he sat for the entrance examination in theSinhala language.
The respondents contended that the appellant had failed to establish aspecific right as a prerequisite for the Writ of Mandamus to be issued andthat there was no basis for legitimate expectation and that the relevantauthority would have to encounter administrative inconvenience, if reliefwas to be granted.
Held:
It is a pre-entry requirement that the candidates should possess acredit pass in the English language and Sinhala or Tamil language.Considering the pre-entry requirements, the students, who have acredit pass in the relevant language are only entitled to admissionto the relevant mediums, when admission is considered for therelevant medium of instructions.
In the circumstances, there were two mediums of instructions at IheSri Lanka Law College.
The appellant could not have been considered along with thestudents, who had sat for the entrance examination in the Tamilmedium and called for the interview for a special selection process.
Held further:
For the appellant to insist that, Mandamus be issued to direct SriLanka Law College to admit him to follow its programme, he shouldhave fulfilled the basic requirement for the said writ by indicatingthat he has a legal right as he had obtained over and above 69marks. The appellant has obtained only 66 marks, thus has no legalright for admission, on the basis of the results. When the appellanthas no such legal right there cannot be any legal duty for the 1strespondent to admit the appellant to the Sri Lanka Law College.
The appellant could not have any legitimate expectation on thebasis of his marks obtained at the entrance examination. Theintervening circumstances, was the selection of a group of studentswho had sat for the entrance examination in the Tamil medium. Theappellant did not belong and could not have belonged to that group.It is not possible to rely upon a legitimate expectation, unless suchexpectation is founded upon either a promise or an establishedpractice.
A writ may be refused not only upon the merits, but also by reasonof the special circumstances of the case. The Court will take aliberal view indicating whether or not the writ will issue. It isapparent that to admit the appellant – would lead to several
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administrative difficulties. Writ of mandamus will not be issued whenit appears that it is impossible of performance, by reason of thecircumstances.
APPEAL from the judgment of the Court of Appeal reported in 2006 • 3 SriLR 287.
Cases referred to:
Vasana v incorporated Council of Legal Education and others. 2004 1Sri LR 163.
Maha Nayake Thero, Malwatte Vihare v Registrar General 1937 3 SriLR 186.
M.A. Sumanthiran with Viran Corea, Sharmaine Gunaratne, H. Vamadeva,Suresh Fernando and Erimza Tegal for the petitioner-appellant.
Shavindra Fernando DSG with Nerin Pulle SSC and S. Barrie SC forrespondents.
Cur.adv.vult.
September 11, 2007
DR. SHIRANI BANDARANAYAKE, J.This is an appeal from the judgment of the Court of Appealdated 13.12.2006. By that judgment, the Court of Appeal refusedto issue a writ of mandamus and dismissed the petitioner-appellant's (hereinafter referred to as the appellant) application.The appellant filed an application before this Court on whichSpecial Leave to Appeal was granted on the followingquestions:
Has the Court of Appeal misdirected itself in fact and lawin holding that there are two mediums of instruction in theSri Lanka Law College, namely Sinhala and Tamil?
Was the Court of Appeal wrong in denying relief to thepetitioner on the basis that his credit pass in the G.C.E.Ordinary Level Examination is in the Sinhala languageand that he sat for the entrance examination in theSinhala language?
Whether in any event the relief sought in this applicationis futile?
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The facts of this appeal, albeit brief, are as follows:
The entrance examination for admission to the Sri Lanka LawCollege to follow the course for admission as Attorneys-at-Law ofthe Supreme Court was held on 01.10.2005 and the appellantwas a candidate for the said examination who sat in the Sinhalamedium. The entrance examination was conducted by the 6threspondent at the request of the Incorporated Council of LegalEducation in terms of its Rules.
In December 2005, the appellant had received the resultsheet indicating that he had obtained 66 marks and that he hadnot been successful at the entrance examination (P4 in X2) as ithad been decided by the Incorporated Council of LegalEducation to select students, who had obtained over and above69 marks at the said examination and 239 candidates wereselected on that basis.
The appellant thereafter had become aware that four (4)students, who had sat for the said entrance examination in theTamil medium had filed fundamental rights applications allegingthat only one candidate has been selected from the Tamil
medium for the year 2006 from the said entrance examination foradmission to Sri Lanka Law College. Those petitioners hadsought to re-scrutinize their papers.
According to the appellant this Court had directed the SeniorState Counsel to ascertain whether the Commissioner Generalof Examinations was agreeable to constitute a committeeconsisting of a Chief Examiner to re-scrutinize the answer scriptswithout releasing the answer scripts from the CommissionerGeneral of Examinations and if he was agreeable to such acourse of action steps were to be taken accordingly andproceedings in those applications were terminated on that basis(P6 in X2). However the 6th respondent had declined to re-correct the answer scripts as the results sheet had specificallystated that no re-scrutinizing would be carried out.
Following the said order, the 3rd respondent, by his letterdated 01.03.2006 had called certain students to be present at theChambers of the Hon. The Attorney-General on 08.03.2006 foran interview in relation to admission to Sri Lanka Law College
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(P7 in X2). Thereafter the appellant had become aware that outof the 21 students, who were called for the interview, eleven (11)candidates, namely 7th to 17th respondents, had been admittedto Sri Lanka Law College. They had been admitted, notaccording to the marks obtained at the entrance examination tothe Law College, but according to their performance at theinterview.
The appellant submitted that several students, who wereadmitted after the said interview had obtained lower marks thanthe appellant who had obtained 66 marks, whereas others, whowere so selected had got only 60, 62 or 65 marks. Further theappellant stated that he was aware that there were students inthe Tamil medium who had received more marks than the 7th to17th respondents at the entrance examination to the Sri LankaLaw College, but were not admitted.
In the circumstances, the appellant stated that the entireprocess of admission of 7th to 17th respondents had lackedtransparency and that they were selected outside the criteria ofthe Rules of the Incorporated Council of Legal Education.According to the appellant, the scheme for the admission to SriLanka Law College is only based on the applicant's performanceat the entrance examination and there is no provision to grantmarks at interviews. The said interviews were made only for theselected few and there was no public notification of such aninterview and therefore the 2nd, 3rd and 4th respondents hadacted ultra vires the Rules of the Incorporated Council of legalEducation in conducting the said interview.
Accordingly eight (8) candidates, who sat for the entranceexamination and the appellant had filed writ applications seekinginter alia mandates in the nature of writs of mandamus andcertiorari challenging the admission of the 7th to 17threspondents and the non-admission of those 8 candidates andthe appellant and stating that the process employed for theselection of the 7th to 17th respondents to Sri Lanka LawCollege was ultra vires the Rules of the Council of LegalEducation, was unreasonable, arbitrary, lacking transparencyand was flawed by procedural and substantive irregularity
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286All nine (9) applications were taken up together for hearingbefore the Court of Appeal. Out of these, seven (7) applicationswere allowed and the two (2) applications filed by the appellantand another student, both of whom had sat for the entranceexamination in the Sinhala medium, were dismissed Beingaggrieved by the said decision the appellant filed a SpecialLeave to Appeal application.
Having stated the facts of this appeal let me now turn toconsider the appeal based on the questions on which SpecialLeave to Appeal was granted by this Court.
Has the Court of Appeal misdirected itself in fact and lawin holding that there are two mediums of instruction inthe Sri Lanka Law College, namely Sinhala and Tamil?Learned Counsel for the appellant in his application to thisCourt for Special Leave to Appeal, had specifically stated thatthe learned Judge of the Court of Appeal had dismissed theapplication filed by the appellant in the Court of Appeal inter aliafor the reason that there were only two mediums of instructionsat the Sri Lanka Law College, namely Sinhala and Tamil mediaand therefore he sought for Special Leave to Appeal inter alia onthe question whether it was a misdirection to hold that there areonly those two mediums of instruction.
Learned Judge of the Court of Appeal had stated in hisjudgment that there are two mediums of instructions at the SriLanka Law College. However, it is interesting to note that thisfact had been common ground and the Judge has clearly statedso in the judgment, which reads thus:
"It is common ground that there are two mediums ofinstructions at the Sri Lanka Law College, namely: ‘Sinhalamedium' and the Tamil medium'."
It is therefore apparent that this has been the view taken notonly by the learned Counsel for the respondents, but also by thelearned Counsel for the appellant. Otherwise it cannot beconsidered to be a fact by the Court of Appeal to be commonground at that stage. Moreover, as contended by the learned
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Deputy Solicitor General for the 1st and 3rd respondents it isclear that the learned Judge of the Court of Appeal had formedsuch an opinion purely on the basis of the submissions made bythe learned Counsel for the appellant.
This position is strengthened, when one reads the followingparagraphs of the judgment, where the learned Judge of theCourt of Appeal had stated that,
"The counsel for the petitioner contended that eventhough there were two mediums of instructions the
candidates are free to sit the Entrance Examination, in anylanguage and to follow lectures in any language (emphasisadded)."
Be that as it may, it is not disputed that the admission to theSri Lanka Law College and the conduct of academic activitiesare governed by the Rules of the Incorporated Council of LegalEducation. Accordingly it is a pre-entry requirement that thecandidates should possess a credit pass in the English languageand Sinhala language or Tamil language.
Learned Deputy Solicitor-General for the respondentscontended that 'it is the practical reality that at the Sri Lanka LawCollege there are the Sinhala and Tamil mediums of instruction1.Considering the pre-entry requirements and the medium ofinstruction at the Sri Lanka Law College it cannot be found to bein correct that the learned Judge of the Court of Appeal hadcome to the conclusion that 'the students, who have a credit passin the relevant language are only entitled to admission to therelevant mediums, when admission is considered for the relevantmedium or instruction'.
In the circumstances, since it had been quite clearly commonground that there were two mediums of instructions at the SriLanka Law College it is imperative that this question has to beanswered in the negative.
Was the Court of Appeal wrong in denying relief to thepetitioner on the basis that his credit pass in the G.C.E.Ordinary Level Examination is in the Sinhala language
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and that he sat for the entrance examination in theSlnhata language?
Admittedly the appellant sat for the entrance Examination forthe admission to Sri Lanka Law College in the Sinhala medium.It is also not disputed that the appellant had obtained a creditpass in the Sinhala language and that he had not offered Tamillanguage as a subject for the Ordinary Level Examination. It isthus apparent that whilst all the candidates, who were laterselected on the basis of an interview had been from the Tamilmedium, the petitioner was the only such candidate, who had satfor the entrance examination in the Sinhala medium.
The appellant had not contended that he had the ability andthat he was deprived from sitting for the said entranceexamination in the Tamil medium. In the circumstances it isapparent that the appellant had selected Sinhala medium as hischoice of medium for the purpose of sitting for the entranceexamination.
Learned Deputy Solicitor General for the 1st and 3rdrespondents contended that the said respondents had made aclear distinction between those who sat for the entranceexamination for admission to Sri Lanka Law College in theSinhala medium and Tamil medium in order to redress agrievance relating to a mistake in the question paper and certainproblems that were found by the teaching and practice of law inthe Tamil language.
Learned Deputy Solicitor General submitted that theIncorporated Council of Legal Education had also adopted apolicy decision to increase the intake to the Tamil medium of theSri Lanka law College in order to redress the problems ofinadequacy of qualified Attorneys-at-Law, who coutd practice inthe Tamil language in the Northern and Eastern Provinces of thecountry. Since there was no established procedure to follow insuch a situation, the Incorporated Council of Legal Educationhad selected students from amongst the candidates, who hadobtained high marks in the Tamil medium by following aninterview process.
Wannigama v Incorporated Council of Legal Education and Others
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The contention of the learned Counsel for the appellant wasnot on the correctness of the process that was adopted by theIncorporated Council of Legal Education, but to elaborate thereasons for the non-consideration of the appellant along with thatgroup of students, who had sat for the entrance examination inthe Tamil medium, for admission to Sri Lanka Law College.However, it is to be noted that the learned Counsel for theappellant had not contended that the appellant could eitherpursue his studies at the Sri Lanka Law College in the Tamilmedium or that he was capable of engaging in the profession asan Attorney-at-Law in the Tamil language. In suchcircumstances, the appellant could not have been consideredalong with the other students, who had sat for the entranceexamination in the Tamil medium and called for the interview fora special selection process.
Accordingly this question also has to be answered in thenegative.
Whether in any event the relief sought in this applicationis futile?
The contention of the learned Counsel for the appellant wasthat the appellant had prayed for a writ of mandamus to granthim admission to the Sri Lanka law College. Learned Counsel forthe appellant strenuously contended that the technicalobjections raised by the learned Deputy Solicitor General to thegrant of the writ of mandamus will not apply in this case. LearnedDeputy Solicitor General for the respondents however contendedthat it was necessary for the appellant to establish a specificlegal right as a pre-requisite for the writ of mandamus to beissued and also that it is incumbent on the appellant todemonstrate, that the respondents are 'beholden by a publicduty* to admit the appellant to the Sri Lanka Law College.Learned Deputy Solicitor General referred additionally that therewas no basis for legitimate expectation and that the relevantauthority would have to encounter administrative inconvenience,if relief was to be granted in this appeal.
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I would accordingly consider these contentions separately.
(a) The question of legal right and public duty.
Learned Counsel for the appellant relying on the decision inVasana v Incorporated Council of Legai Education and others^*)stated that it was clearly stated by Amaratunga, J. that theIncorporated Council of Legal Education is indeed a public andstatutory body and there is a legal duty to perform in enrolling thestudents to the Sri Lanka Law College. Learned Deputy SolicitorGeneral for the respondents also relied on the decision inVasana (supra) and stated that the Court of Appeal in that casehad unequivocally laid down that,
"In order to succeed in an application for a writ ofmandamus the petitioner has to show that he or she has alegal right
The writ of mandamus has been described as an order, whichis of a most extensive remedial nature and is a commanddirected to any person, Corporation or inferior tribunal requiringhim or them to do some particular thing, which is in the nature ofa public duty (Halsbury's Laws of England. 4th Edition, Vol.l,para 89, pg. 111). Referring to the conditions precedent to issueof mandamus, it is stated in Halsbury's Laws of England (supra.para 120, pg 131) that,
"The applicant for an order of mandamus must show thatthere resides in him a legal right to the performance of alegal duty by the party against whom the mandamus issought, or alternatively that he has a substantial personalinterest in its performance."
It is therefore apparent that, as has been clearly and correctlypointed out in the decision in Vasana by Amaratunga, J. (supra).the appellant must show that he has a 'legal right to theperformance of a legal duty' by the party against whom themandamus is sought; viz. the Incorporated Council of LegalEducation.
It is common ground that the appellant had obtained only 66marks at the entrance examination and did not qualify foradmission to the Sri Lanka Law College. As stated earlier 239
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candidates were selected for admission to the Sri Lanka LawCollege who had obtained over and above 69 marks. A writ ofmandamus would be issued only if a person can clearly showthat he has a legal right to insist on such performance.Accordingly, for the appellant to insist that mandamus be issuedto direct the Sri Lanka Law College to admit him to follow itsprogramme, he should have fulfilled the basic requirement forthe said writ by indicating that he has a legal right as he hadobtained over and above 69 marks at the entrance examination.The appellant who had admittedly obtained only 66 marks, at theentrance examination to the Sri Lanka Law College thus has nolegal right for the admission to the Sri Lanka Law College on thebasis of the result of that examination. When the appellant hasno such legal right, there cannot be any legal duty for theIncorporated Council of Legal Education to admit the appellant tothe Sri Lanka Law College.
The next ground, which was strenuously contended by thelearned Counsel for the appellant was that the appellant had alegitimate expectation that he would be admitted to the Sri LankaLaw College along with the 7th to 17th respondents as he toohad obtained marks over and above 60.
Legitimate expectation, in general terms, was based on theprinciples of procedural fairness and was closely related tohearings in conjunction with the rules of natural justice. As hasbeen pointed out by D.J. Galigan (Due Process and FairProcedures. A Study of Administrative Procedure, 1996, Pg.320),
"In one sense legitimate expectation is an extension of theidea of an interest. The duty of procedural fairness is owed,it has been said, when a person's rights, interests, orlegitimate expectations are in issue."
Discussing the concept of legitimate expectation, DavidFoulkes (Administrative Law, 8th Edition, Butterworths, 1995, pg.290) has expressed the view that a promise or an undertakingcould give rise to a legitimate expectation. In his words,
"The right to a hearing, or to be consulted, or generally toput one's case, may also arise out of the action of the
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authority itself. This action may take one or two, or bothforms, a promise (or a statement or undertaking) or aregular procedure. Both the promise and the procedure arecapable of giving rise to what is called a legitimateexpectation, that an expectation of the kind which the courtswill enforce.“
The procedure followed by the Sri Lanka Law College was toselect the students for admission in the order of merit based ontheir performance at the entrance examination and the number ofvacancies available as determined by the Incorporated Council ofLegal Education.
Accordingly as stated earlier, the students, who had obtainedover and above 69 marks were selected for admission. Theappellant, when he became aware that he had obtained only 66marks, knew quite well that, in terms of the practice and theprocedure followed by the Incorporated Council of LegalEducation in admitting students to the Sri Lanka Law College, thathe was not qualified for admission.
In such circumstances it is evident that the appellant could nothave had any legitimate expectation to have been selected to theSri Lanka Law College on the basis of his marks obtained at theentrance examination. The intervening circumstances, as referredto earlier, was the selection of a group of students, who had sat forthe entrance examination in the Tamil medium. As examinedearlier, the appellant did not belong to and could not havebelonged to that group. It is not possible to rely upon a legitimateexpectation unless such expectation is founded upon either apromise or an established practice. It is abundantly clear that theappellant has no such grounds to rely on and in suchcircumstances it becomes futile for him to have any claim on thebasis of legitimate expectation.
The final ground on which submissions were made was basedon administrative inconvenience.
Learned Deputy Solicitor General for the 1st and 3rd respon-dents contended that any order, which directs the Sri Lanka LawCollege to admit the appellant would lead to several administrativedifficulties as there are a large number of other applicants, who
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have obtained higher marks than the appellant. Learned DeputySolicitor General submitted that if an order is given to admit theappellant considering fair procedure, all those applicants, whowould exceed one thousand in number, will have to be admitted.He further contended that, the Sri Lanka Law College is notequipped to accommodate over one thousand students In a givenbatch. Accordingly, relying on the decision of Soertsz, J. In MahaNayake Thero, Malwatte Vihare v Registrar Genera^2), It wascontended that the harm to the appellant, who did not qualify foradmission to the Sri Lanka Law College is not sufficientlysignificant to outweigh the administrative inconvenience thatwould undoubtedly follow in the event a decision is taken to admitthe appellant to the Sri Lanka Law College. In Maha NayakeThero, Malwatte Vihare (supra), Soertsz, J. had stated that,
"… the writ may be refused not only upon the merits, but alsoby reason of the special circumstances of the case. The courtwill take a liberal view in determining whether or not the writwill issue."
This position has been considered by many other authorities.For instance, in Halsbury's Laws of England (4th Edition, Vol.l,page 125, page 134), it is clearly stated that the writ of mandamuswill not be issued when it appears that it is impossible ofperformance, by reason of the circumstances and the writ willnormally be refused 'if the party against whom it is prayed doesnot, for some other reason, possess the power to obey*.
Considering all the aspects examined hereinbefore, it is thusapparent that the relief sought by the appellant in this appeal isfutile and I answer the 3rd question in the affirmative.
In the circumstances, questions No. 1 and No. 2 are answeredin the negative and question No. 3 is answered in the affirmative.
For the reasons aforesaid, this appeal is dismissed and thejudgment of the Court of Appeal dated 13.12.2006 is affirmed.
I make no order as to costs.
AMARATUNGA, J.-I agree.
BALAPATABENDI, J.-I agree.
Appeal dismissed.