IN THE SUPREME COURT OF THE DEMOCRATIC
SOCIALIST REPUBLIC OF SRI LANKA

 S.C(FR) Application   No. 642/2002

   Ms. R.I.K de Silva
   No.46 Gregory’s Road,
  Colombo 07

 
          PETITIONERS

                  Vs.


1.         The University Grants Commission
        No.20 Ward Place ,
        Colombo 7
        and 4 others

       Respondents

BEFORE   :  Sarath N. Silva   Chief Justice, 
                 P. Edussuriya     Judge of the Supreme Court,       
                 H.S. Yapa          Judge of the Supreme Court

COUNSEL :                    D.S. Wijesinghe, P.C., with Ms. Dhammika 
                                    Dharmadasa for the Petitioner.
                                    R.K.W. Gunasekera with S. Hewamanna for the 
                                    1^st and 2^nd Respondents
                                    U. Egalahewa , S.C. , for the 3^rd & 4^th Respondents

ARGUED ON :     09.12.2002

DECIDED ON :    30. 01. 2003

The Petitioner has been granted leave to proceed in respect of the alleged infringement of Article 12(1) of the Constitution. She sat for the G.C.E (A Level) examination in the year 2001 and obtained grades of two A’s and two B’s with an “Z” score 1.6517. She sought admission to the Faculty of Law, but being a candidate from the Colombo District failed to secure admission, falling short by a few marks.  Instead, she gained admission to the Faculty of Arts in the University of Colombo .

 The Petitioner subsequently learnt that there were vacancies in the Faculty of Law and that a student in that Faculty wanted to join the Faculty of Arts. On the basis of that information she wrote letter dated 17.10.2002 (the original of which has been produced marked 3R2) to the 4^th Respondent being the Dean,  Faculty of Arts. The letter refers to the matters stated above with regard to vacancies and concludes with the following sentences :

“In the circumstances I am willing to exchange place with this student. I am very keen on getting a degree in law as it is my chosen career. Therefore I kindly request you to consider my case sympathetically and release me to do the law degree.”  

From the endorsements appearing on the letter and the affidavits filed in Court , it is clear that this request was supported by the Dean, Faculty of Law and the Dean, Faculty of  Arts being the 3^rd and 4^th Respondents. The Dean, Faculty of Law has stated in his affidavit as follows :

“I sent the letter (being the request of the Petitioner) with an endorsement to the following effect, that I learnt that names of 14 students had been sent for registration but only 9 have so far registered, that time was running out with regard to the students’ attendance requirements , and that we have permitted mutual transfer in the past, if I remember correct. I also requested the Additional Secretary (Admissions of the University Grants Commission – the 1^st Respondent) whether he could consider the Petitioner’s appeal favourably at his earliest.”
 

After the Petitioner’s request supported by the Deans of the respective Faculties was sent to the University Grants Commission (U.G.C), letter dated 22.10.2002 (produced marked X9 and 3R5) was sent by the Commission to the Dean, Faculty of Law stating that another student already registered with the Faculty of Arts should be admitted to the Faculty  of Law. This student  is also one that sat for the same G.C.E (A Level) examination as the Petitioner from the Colombo  District, but secured a ‘Z’ score lower than the Petitioner. The Petitioner’s ‘Z’ score   was 1.6517, as noted above and student whose admission was ordered by the U.G.C by X9 had an ‘Z’ score of only 1.6109. This admission was ordered by the U.G.C not on the basis of the performance at the G.C.E (A level) examination and the respective marks that had been secured, but on the basis that the latter student had done well in the sport of “Kabadi”. The Dean, Faculty of Law has referred this matter in his affidavit as follows :

“I was compelled to admit a student from the Faculty of Arts on the basis that the said student had excelled in the sport “Kabadi”. It is also observed that the ‘Z’ score of this student is 1.6109 which is lower than that of the Petitioner. I annex herewith a copy of the letter marked 3R5.”

The request of the Petitioner was refused by the U.G.C by letter dated 5.11.2002 (X13). It appears that the student who was registered in the Faculty of Law and who sought a transfer to the Faculty of Arts had that request granted without much ado. According to the affidavit of the Dean, Faculty of Arts that student’s request was considered at the 176^th Faculty Board meeting and the student was allowed to register in the Faculty of Arts in October 2002.

            It is in this context that the Petitioner has alleged an infringement of her fundamental right to equality guaranteed by Article 12(1) of the Constitution, on the part of the Respondents. The Petitioner relies mainly on two grounds to establish her allegation of unequal treatment –

1.       that a student similarly circumstanced having sat for the same examination from the same District and registered in the same Faculty of Arts has been permitted to register in the Faculty of Law although she had a lower ‘Z’ score.

2.       that a student registered in the Faculty of Law has been permitted to transfer to the Faculty of Arts although she has been denied an opportunity of her request being considered on the basis of any applicable criteria.  

The U.G.C has strenuously resisted the grant of any relief to the Petitioner although the Dean, Faculty of Law has stated in his affidavit that there is yet a vacancy in that Faculty. In the circumstances it is necessary to examine the matter of admission further.

            The intake to the Faculty of Law of the University of Colombo has been fixed at 200 students for the year 2002/2003. By document X11 the U.G.C decided on the allocation of places in respect of the total intake of 200 students. 79 places were allocated on the all island merit quota and 121 on the district quota, making a total of 200. On that basis the cut off point in the ‘Z’ score for each District was notified by X11. It is clear that the U.G.C did not make any reservation for special admissions, including for students who have excelled in fields other than studies, as provided in Part Two of the Handbook issued by the U.G.C in respect of admissions (R1). By letter dated 18.09.2002 the Deputy Registrar Examinations of the University of Colombo , informed the U.G.C that there are 15 vacancies in the Faculty of Law resulting from selected students failing to seek registration.  This letter produced as X4 bears the endorsement “Very urgent” and requests that immediate action be taken to fill these vacancies. The sense of urgency on the part of the University authorities is understandable, since the academic programme in the Faculty of Law was due to commence on 07.10.2002. In response, the U.G.C sent the letter dated 10.10.2002 giving the names of 14 students to fill the vacancies. The explanation of the U.G.C is that one place from the  vacancies was reserved for a special admission.

            The U.G.C claims that the action taken to fill the vacancies is strictly in accordance with the provisions in the Handbook (R1). In view of the firm stand taken by the U.G.C in this regard, it is necessary to examine the claim carefully in the light of the relevant provisions of the Handbook. Part two of the Handbook which deals with special admissions in paragraph 18(b) states as follows :

            “(b) Students who have excelled in fields other than studies:

0.5% of the places in each course of study has been reserved for candidates who have achievements at national or international levels in such fields as sports, cultural activities (e.g. dancing, painting, music and literature), scouting and cadetting, social work and other extra curricular activities in and after 1998, but have failed to gain admission under the normal intake because of the short fall of a few marks……” 

It has to be observed at the outset that the criteria set out in this provision is vague and it purports  to reserve a power to the U.G.C to make selections at its sole discretion. The provision does not contain adequate guidelines to ensure that the power reserved by the U.G.C to itself would not be exercised arbitrarily. The U.G.C. has selected a candidate who is from the same District as the Petitioner but who has got a lower ‘Z’ score on the basis of her performance in the sport of “Kabadi”. The level of her performance in the sport is not disclosed. Whilst the U.G.C may be under the impression that skill in the sport of “Kabadi” is a useful attribute to the study of law, it has to be noted that such a course of action is inconsistent with the equal protection of the law guaranteed to every person by Article 12(1) of the Constitution. If any reservation for a special admission is to be made, that should be done on the basis of rational criteria, related to the overall objective of selecting the most competent student with the highest aptitude for the particular course of study. In that respect the provision relied on by the U.G.C falls far short of the required standard. It’s application, seen from the facts of this case, makes it worse and demonstrates the danger in reserving to an authority discretionary power without adequate guidelines as to its exercise. I do not want to go into this matter further since the student selected for her performance in “Kabadi” is not a party to this application.  From the Petitioner’s perspective, she has been plainly denied the equal protection of the law guaranteed to her by Article 12(1) of the Constitution.  Her application for a transfer to the Faculty of Law which had been supported by the Deans of the respective Faculties evoked a negative response from the U.G.C. Whereas the U.G.C has permitted a similar transfer,  which has not been supported by the Deans of the respective Faculties, according to the material available, in respect of a student with a lower ‘Z’ score on a ground that cannot be supported.

            When one delves into the matter further, it is seen that a place for special admission should, if at all, be “reserved” at the commencement of the admission process. In this instance, the U.G.C did not make a reservation for any special admission, but allocated all 200 places on the district and the all island merit quotas as seen in the document X11. The U.G.C has purported to order the registration of a student as a special admission in the process of filling of vacancies that resulted from non-registration of selected students. Filling of vacancies is dealt with in paragraph 12 of Part I of the Handbook whereas reservation for special admissions is provided for in paragraph 18 in Part II of the Handbook. Since the U.G.C has strenuously contended that the filling of vacancies was ordered strictly in accordance with the relevant provisions, I would reproduce the entirety of paragraph 12 –

            12. FILLING OF VACANCIES

Vacancies may arise as a result of non-registration of students selected under the normal intake. These are filled on the following basis :

 (a)    Vacancies due to non-registration of students  under the merit quota will be filled on an all island merit basis.  

(b)    Vacancies due to non-registration of students selected under the district quota will be filled on a district merit basis.  Vacancies in a particular district will be filled with students from the same district.

(c)    When an additional number of students have been selected over and above the quota due to clustering of students at the same mark point, such additional number will be deducted from the number of vacancies and only the balance will be filled.

(d)    Vacancies in any course of study will not be filled  after the commencement of the academic programme of the university concerned.

(e)    In terms of 9.4 above, candidates once registered in a course of study on the basis of the results of the GCE (A/L) Examination held in 2001 should accept the course of study to which he/she would be elevated according to the higher preference indicated by him/her in the application for admission, when filling vacancies.  

On a plain reading it is seen that no place can be reserved for a special admission in the process of filling of vacancies. I am compelled to note that the U.G.C has conveniently skipped from  paragraph 12 in Part I to paragraph 18(b) in Part II of the Handbook to order the registration of the student with a lower ‘Z’ score than the Petitioner on the basis of her performance in sport. Thus the reservation of one place for a special admission in the process of filling of vacancies is  clearly illegal.

            To proceed further on the matter of filling of vacancies, as noted above, the Deputy Registrar Examinations of the University of Colombo informed the U.G.C of 15 vacancies in the Faculty of Law by letter dated 18.09.2002 (X4) which was marked “very urgent”. The urgency lay in the fact that the academic programme of the Faculty of Law was due to commence on 07.10.2002. Paragraph 12(d) of the Handbook, reproduced above states clearly that vacancies will not be filled after the commencement of the academic programme for the University. The U.G.C violated its own rule by sending the 14 names in letter dated 10.10.2002, after the academic programme commenced on 07.10.2002. When 5 students  of the 14 failed to register, the U.G.C. sent another list on 5.11.2002 (X7) and yet another list on 21.11.2002 (X8). This is in addition to the special admission on the performance in sport ordered by letter dated 22.10.2002 (X9). All these lists have been sent in contravention of the provisions  of paragraph 12(d) referred above. Therefore the strenuous claim of the U.G.C that it has acted strictly in accordance with the provisions of the Handbook in filling of vacancies, ends up in smoke when subjected to a close scrutiny.

            A more alarming fact that emerges from the foregoing account of the process of admission is that 15 students out of the 200 (7.5%) originally selected dropped out at the stage of registration itself. There are further drop outs as the academic programme goes on.  This demonstrates the inherent weakness of a selection process based solely on statistics churned out by computers. There is a live question whether such a process by itself will produce students with the required aptitude and the real capacity to engage in undergraduates studies in a given field. This question addresses a matter of policy, formulation which is outside the purview of the jurisdiction of this Court.

            Reverting specially to the facts  of this case, the action of the U.G.C is best epitomized by the following paragraph in the affidavit filed by the  Dean, Faculty of Law.

13.   I further state that if the action of the 1^st and 2^nd Respondents (the U.G.C and its Chairman) are transparent, complaints of this nature could have been minimized. I am of the view that the University Grants Commission should publish openly every year its admission policy, criteria adopted to select candidates, each candidate’s marks and ranking, each one’s choice of courses/disciplines, their choice of university and the selection made by the University Grants Commission. Transparency will not only make candidates to trust the institution and the decision  making process but also cause the institution to be responsible and accountable.”