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IN THE COURT OF APPEAL OF THE
DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application for
writs in the nature of certiorari
and mandamus under and in terms of Article 140 of the Constitution
1.
Dr. A. Harsha De Silva, Director, Private Health Sector Development, Ministry of Health, Nutrition and Welfare 2. Dr.
Hector Weerasinghe,
Director, National Hospital,
Colombo 3. Dr.
R. Wimal Jayantha, Director, Lady Ridgeway Hospital, Colombo 4. Dr.
U. Ajith Mendis, Deputy Director General Laboratory Services, Ministry of Health, Nutrition and Welfare 5. Dr. B.F.S. Samaranayake, Director, Medical Technologies and Supplies Petitioners Court of Appeal Application No. 2231/2002 Vs 1. Prof. Lalitha
Mendis, Director, Post - Graduate Institute of Medicine, Colombo (PGIM). 2. Dr. Lucian Jayasuriya, Board of Management (PGIM) 3. Dr. J.B.Peiris,
Member, Immediate Past Director PGIM. 4. Mr. S.Ediriweera,
Member 5. Dr. Reggie Perera,
Member, Secretary/ Health and
24 others Respondents BEFORE : K. SRIPAVAN, J. COUNSEL : Romesh de
Silva P.C. with Hiran de Alwis
for the petitioner.
A. Gnanathasan D.S.G. with Janak de Silva
S.C. for first to sixth and eighth to twenty ninth respondents. ARGUED
ON: 11.03.03,
12.05.03 and 28.05.03. WRITTEN
SUBMISSIONS : Tendered on 28.05.2003. DECIDED
ON : 25.06.03. K. SRIPAVAN, J. The
petitioners are Medical Doctors holding senior positions in the Department of
Health. All petitioners possess
postgraduate medical qualifications.
Pursuant to an advertisement alleged to have been published by the
Postgraduate Institute of Medicine (hereinafter referred to as the PGIM), the
petitioners applied to follow a course leading to M.D in Medical
Administration. The petitioners were
admitted to follow the said course as “Category B” candidates. The requirements for “Category B” candidates as stipulated in the
Regulations and Training Programme marked P2 are as
follows:-
i)
A
course unit for three months in Research Methodology.
ii)
Undertake
a research project leading to a thesis.
Research project to be approved by the Board
of Study
iii)
Total
period for (i) and (ii) above shall not be less than
two years and not more than five years
iv)
The
candidate shall submit a thesis based on the research project and shall defend the thesis
at an oral examination. The petitioners followed the course
unit in Research Methodology. On 25th
September 2002, the petitioners were informed by the first respondent that they
have failed to satisfy the requirements of the PGIM in respect of attendance at
lectures of Research Methodology and as such the petitioners were not eligible
to continue with the rest of the programme. The petitioners seek, inter-alia, a writ of certiorari to quash the decision of the
respondents, preventing the petitioners from continuing with the research
project leading to a thesis AND a writ of mandamus compelling the respondents
to permit the petitioners to undertake the said research project. The learned President’s Counsel
submitted that there was no requirement for the petitioners to attend 80% or
more of the lectures conducted in Research Methodology and even if there was
such a requirement, the petitioners were not notified of that requirement. The Learned Deputy Solicitor General relied
on the “HANDBOOK AND PROSPECTUS” of 1992 (1R3) issued by the PGIM and urged
that Clause 7 under “General Information” applies to all courses of PGIM while
specific rules relating to individual courses are published separately. It is common ground that Clause 13 of
the Postgraduate Institute of Medicine Ordinance No. 1 of 1980 made by the
University Grants Commission under Sec 140 read with Sec 18 of the Universities
Act No. 16 of 1978 as amended and published in the Government Gazette (Extra-ordinary)
No 83/7 of 10.04.1980 was further amended by Gazette No. 796 / 6 of 08.12.1993
in order to establish a Board of Study in respect of Medical
Administration. It is that Board of
Study so established in Medical Administration conducts the training programme marked P2 for M.D. in Medical
Administration. Thus, it could be seen
that the Board of Study for Medical Administration was established after
December 1993 and the “HANDBOOK AND PROSPECTUS” of 1992 does not apply to the
course in Medical Administration . Hence, I am unable to accept the submission
of the learned Deputy Solicitor General that Clause 7 of IR3 applies to the
course leading to Medical Administration.
The attention of court was not drawn to any other handbook published by
the PGIM with specific rules relating to Medical Administration. Therefore, the
court is of the view that the “HANDBOOK
AND PROSPECTUS” applies only to the academic programmes
referred to in Clause 3 of the book and
not to a course leading to M.D. in Medical Administration. Alternatively, the learned D.S.G.
submitted that documents 1R1, 1R2, 1R4, 1R5, 1R6 and 1R7 containing the
statements of Dr. J. B. Peiris, Dr. Mrs. S. Abeyratne, affidavits of Dr. Mrs. S. Abeyrathne,
Dr. Nimal Edirisinghe, Dr. Beneragama and Dr. Kumaravetpillai
respectively show that the then Director of the PGIM Dr. J. B. Peiris and Dr. Mrs. S. Abeyratne
informed the candidates at the inauguration session held on 17th
April 2002 that a minimum requirement of
80% attendance was required for the Research Methodology course. The court observes that on 13th
August 2002 the third petitioner wrote a letter to the chairman of the Board of
Study (P5b) seeking permission to continue with the course after giving excuses
for his absence. This, in my view shows that the third petitioner was well
aware of the attendance requirement. Further, the first petitioner when he
addressed the letter dated 7th October 2002 to the Director of PGIM
(P5d) did not refer to the fact that the attendance requirement was never
notified to him. The other petitioners
who received letters from the Director PGIM, did not challenge that the
attendance requirement was never informed to them. As submitted by the learned D.S.G, the
immediate reaction of any person who has been informed of such a course of
action is to write to the first respondent who sent letters and challenge the
attendance requirement if they were not informed in advance. It appears from the letters dated 12th
November 2002 sent by the first respondent to the first, third and second
petitioners marked P6a, P6b and P6c respectively that a fact finding inquiry
was conducted and it was clear that the candidates were informed of the
requirement of 80% attendance and that attendance were marked. If the petitioners dispute the attendance
requirement, this court takes the view that judicial review procedure is not
suited for the determination of disputed facts.
A. S. CHAUDHURI in his book “Law of Writs and Fundamental Rights” (2nd
edition) Vol 2 on page 449 states thus :- “Where facts are in dispute and in order to
get the truth, it is necessary that the question should be
canvassed in a suit where parties would have ample opportunity of
examining the witnesses and the court would be better able to judge
which version is correct, a writ will not issue.” [ Vide Thajudeen Vs Sri Lanka Tea Board and another 1981 2 S.L.R 471; Fazlet Shahabdeen Vs University of Colombo - C.A Appl
202/98 - C.A minutes of 03.12.2002] Hence, whether the petitioners were
in fact aware of the 80% attendance requirement can be ascertained positively
in a regular action between the parties by leading both oral and documentary
evidence and the cross-examination of witnesses and not in a writ application. The next point to be considered is
whether a writ of certiorari would lie in the instant application. The learned President’s Counsel relied on the
judgement of R Vs Panel of Takeovers and
Mergers, exp Datafin plc 1987 1 All E.R. 564 and submitted that judicial review is available
to private bodies which derive their powers from contract rather than statute.
According to his submission, the test for judicial review is not the source of
the powers of a body but the nature of their functions and ambit of their
decision. If the function exercised is
sufficiently public as opposed to a purely private or domestic character then,
Counsel urged that a writ would lie. I
am unable to agree with this submission for the reason that unlike in England
where the basis of review by the Prerogative writs is the common law, in Sri
Lanka it is statute based. Art 140 of the Constitution vests in this court full
power and authority to inspect and examine the records of any Court of First
Instance or Tribunal or other institution and grant and issue, according to
law, orders in the nature of Writs of Certiorari, Prohibition, Procedendo, Mandamus, and Quo warranto
against the Judge of any Court of First Instance, or Tribunal or other
institution or any other person. Thus, S. N. Silva J (as he then was)
discussing the review procedure both in Sri Lanka and England in the case of Halvan and others Vs Kaleelul
Rahuman 2000 3 S.L.R 50 at 61 stated “that in our
context it is appropriate to describe review by way of Writs of Certiorari,
Prohibition and Mandamus as extra-ordinary jurisdiction”. Hence, the
discretionary jurisdiction of this court cannot be exercised, if there is an
effective alternative remedy available to the petitioner. By accepting the offer made by the Board of
Study of the PGIM, the petitioners entered into an implied contract to follow
the course in Medical Administration. Even though the Board of Study for Medical
Administration was established in terms of the PGIM Ordinance, the Regulations
and Training Programme marked P2 was not specifically
created nor designated by the statute.
In that sense, P2 cannot attract any statutory force. Thus the relationship between the petitioners
and the Board of Study of the PGIM is purely a contractual relationship. Prof. Wade in “Administrative Law -8th
Ed” at page 624 states that “where a disciplinary body has no statutory powers
its jurisdiction will normally be based upon contract. Members of trade unions, business
associations and social clubs and also students in universities and colleges
have, as we have seen, contractual rights based on their contracts of
membership, with implied terms which protect them from unfair expulsion….. In
these cases declaration and injunction are the appropriate remedies. Certiorari and prohibition are quite out of
place …….” Whatever decision made in the
exercise of a power which springs from contract is a decision clearly within
the area of private law and the remedies available are the private law remedies
such as damages, declaration or injunctive relief. In the case of Jayaweera Vs Wijeratna 1985 2 S.L.R 413 G.P.S. de
Silva J (as he then was) stated thus:- “where the relationship between the parties
is a purely contractual one of a commercial nature neither certiorari
nor mandamus will lie to remedy grievances arising from an
alleged breach of contract or failure to observe the principles of
natural justice even if one of the parties is public authority.” (Vide Chandradasa Vs Wijeyaratne 1982 1. S.L.R 412; Waas
Gunawardena Vs Perera 1997
2. S.L.R.222). The case of Ariyaratna Vs The Sri Lanka Institute of Architects 2001 3. S.L.R .287 relied
on by the learned President’s Counsel lays down in Sec 8(1) of Law No. 1 of
1976 as amended the disqualifications that preclude membership. Thus, the Sri Lanka Institute of Architects
has no discretion but to admit a person as an associate member if he does not
fall within the disqualifications referred to in the Act. In Weligama Multi Purpose Co-operative Society Limited
Vs Chandradasa Daluwatta
1984 1. S.L.R 195 at 198, Sharvananda J (decision
of a bench of five judges of the Supreme Court) observed as follows:- “The circular No. 18 of 1973 does not
purport to be a regulation and
cannot have the status or attribute of a regulation, duly approved by the Minister and notice of which
approval has been published in the Gazette. Hence, it cannot attract the statutory force
postulated by Sec 32(3) of the Act. Its
significance lies only
on it setting down guidelines for Co-operative Societies”. Applying the same principle, I am
also of the view that P2 does not attract any statutory force or efficacy. In the circumstances, non-compliance with P2
cannot be enforced by way of a writ of mandamus. In terms of Clause 15 of the PGIM Ordinance
No.1 of 1980 as amended, the Board of Study in Medical Administration controls
the education, research and examinations in respect of M.D. in Medical
Administration. Accordingly, whatever
order this court makes will adversely affect the members of the Board of
Study. A complete and final decision on
the questions involved in the instant application cannot be made without the
members of the Board of Study. As
averred in paragraph 2 of the petition, the respondents are the members of the
Board of Management. The failure to make
the members of the Board of Study in Medical Administration as parties is a
fatal irregularity and this application fails on that ground as well. For the reasons stated, I dismiss the
petitioners application, however in all the circumstances without costs. JUDGE OF THE COURT OF APPEAL
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