Website Copy Website Copy - Court of Appeal of Sri Lanka

• IN THE COURT OF APPEAL

OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LAKA

CA Writ Application No. 103/2019

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[n the matter of an application for Writs

of Certiorari, Mandamus and Prohibition

under and in terms of Article 140 of the

Constitution of the Democratic Socialist

Republic of Sri Lanka.

W. Thenuki Pehansa de Silva

No. 45/6, de Mel Road,

Katubedda,

Moratuwa.

Appearing by her next friend

W. Kumudu Dharshana de Silva

No. 45/6, de Mel Road,

Karubedda,

Moratuwa.

Vs.

1. Kusala Fernando

The Principal,

Petitioner

Princess of Wales' College,

Moratuwa.

lA.M. Samarakoon

The Principal,

Princess of Wales' College,

Moratuwa.

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Before:

2. Sunil Hettiarachchi

Secretary,

Ministry of Education,

Isurupaya,

Pelawatta,

Battaramulla.

3. The Attorney General

Attorney General's Department,

Colombo 12.

And 2 others

Respondents

Honourable Justice Yasantha Kodagoda, PC

President, Court of Appeal

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Honourable Justice Arjuna Obeyesekere

Judge of the Court of Appeal

Manohara R. de Silva, P.c. with Imalka Abeysinghe for the Petitioner.

Kanishka de Silva, Senior State Counsel for the Respondents.

Supported on 17th June 2019 and 17th July 2019.

Written Submissions on behalf of the Respondents tendered on:

23,d August 2019.

Written Submissions on behalf of the Petitioner tendered on:

28th August 2019.

Order delivered on 17th December 2019.

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Order

Iustice Yasantha Kodagoda, Pc. PICA

This Order relates to an Application by the Petitioner seeking mandates from

this Court in the nature of Writs of Certiorari, Mandamus and Prohibition, in

terms of Article 140 of the Constitution. This Order is on whether or not formal

Notices of this Application should be issued on the Respondents. Thus, the

Petition filed in this Application, the submissions made on behalf of the

Petitioner by the learned President's Counsel, and the submissions made by

the learned Senior State Counsel on behalf of the Respondents will be examined

in this Order, with the view to determining whether the Petitioner has made

out a prima-faCie case, which warrants this Court to issue formal Notices of this

Application to the Respondents. . ,

The Petitioner - Thenuki Pehansa de Silva, is a minor child, appearing through

her next friend - Kumudu Dharshana de Silva. (Hereinafter, the term

'Petitioner' shall be a reference to such minor - Thenuki Pehansa de Silva.)

Position of the Petitioner

At times relevant to this Application, the Petitioner and her family were

residing at No. 45/6, De Mel Road, Katubadda, Moratuwa. By Notice dated 31st

May 2018 issued by the 3rd Respondent - Secretary to the Ministry of Education,

applications had been called for selection for admission of children to Grade I

of government schools for the year 2019. This Notice captioned "Guidelines/

Instructions and Regulation regarding admission of children to Grade I"

("PI") contains inter-alia the selection scheme for admission of children to

Grade I of government schools. (Hereinafter, the said Notice will be referred to

as the "Guidelines / Instructions and Regulation" or as "PI".) Pursuant to this

Notice, the next friend of the Petitioner (her father) had submitted an

application dated 12th June 2018 seeking admission of the Petitioner to Grade I

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of Princess of Wales' College, Moratuwa, of which 1A Respondent - M.

Sarnarakoon is the Principal. ("P2") To this application had been attached an

affidavit and several other 'supporting documents', which were pleaded by the

Petitioner attached to this Application as "P2A", "P2B", "P2C", "P2D (i) - (v)",

"P2E (i) - (v)", "P2F (i) - (v)", "P2C (i) - (iil", "P2H (i) - (iil", "P2!", "P2]",

"P2K", and "P2L (i) - (iil" . The category under which this application was

presented was the 'proximity' category referred to in "PI".

Subsequently, the Petitioner had been called for an interview. The interview

had been held on 21" August 2018. The letter calling the Petitioner for an

interview ("P3") contained a direction to bring for the interview originals and

copies of the Petitioner's Birth Certificate, Grama Sevaka Certificate, Electoral

Register for 2017, a Coogle map of the area in which the residence is situated,

the National Identity Card of the Applicant (Petitioner's father - next friend)

and the Certificate of Marriage of the Petitioner's parents (Applicant and his '

wife). Furthermore, in support of the 'proximity' category, the Petitioner was

required to submit and extract of the Electoral Register for a period of 5 years

preceding the year of application, Ledger or Deed of Ownership for the place

of residence, registered Rent Agreements / additional documents establishing

residence, ledgers obtained from the Land Registry to establish the residence,

bills for the payment of assessment rates, Electricity and Telephone bills for a

period of 3 years, and service letters from the place of employment of the next

friend of the Petitioner certifying the place of residence. "P3" also contained a

document that stated the manner in which marks would be allocated.

The Petitioner and her next friend had attended the interview held on 21"

August 2018. Following the interview and the examination of the documents

that were submitted by them, the interview panel had allocated to the

Petitioner the following marks:

Residence

Document (primary) establishing the residence

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25 out of 30

12 out of 23

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Other documents establishing residence

Proximity from the school to the residence

Documents establishing proximity of the residence

Other schools in the proximity

Total

05 out of 05

Nil

Nil

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66

Document "P4" issued to the Petitioner by the Chairman of the interview panel

depicts the allocation of these marks.

By letter dated 20th December 2018 CPS"), the Petitioner had been informed by

1A Respondent that it would not be possible to admit the Petitioner to the

Princess of Wales College, since she had obtained 65 marks, whereas the

minimum marks (,cut-off mark') for the relevant category ('proximity to the

school') was 75. The Petitioner submitted to this Court that, she is unaware as·'

to the reduction of 1 mark from 66 contained in "P4" to 65 contained in "P5".

The position of the Petitioner is that, she should have received the following

marks:

(i) Main documents in proof of residence

• Title Deeds

• Title Deeds

or

- 12 out of a maximum of 30 marks

- 13.8 out of a maximum of 23 marks

• Continuously registered Lease Bond


• Other documents to confirm the place of residence

- 4.6 out of a maximum of 6 marks

(ii) Additional documents in proof of residence


(iii) Registration in the electoral register


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(iv) Proxllnity to the school from the place of residence


Thus, the Petitioner alleges that, the Petitioner's application should have been

allocated a total of either 84 or at least 82.6 marks, out of a maximum of 100

marks. Therefore, the Petitioner states that, the Petitioner should have been

selected for admission to Grade [of Princess of Wales' College, as the Petitioner

would have scored a higher number of marks than the 'cut-off' mark for the

relevant category.

The position of the Petitioner is that, allocation of marks to her application had

been done in an ad-hoc, arbitrary and illogical manner, in complete disregard

of her legitimate expectation to gain admission to Princess of Wales' College

under the 'proximity' category. She alleges that the decision not to admit her,

is unjust, unlawful, arbitrary, capricious, done mala fide, and is in violation of'

her fundamental rights guaranteed by Article 12(1) of the Constitution. The

Petitioner also alleged that "PI" is also in violation of her fundamental right

guaranteed under Article 12(1) of the Constitution. In that light, the Petitioner

moved this Court to refer this matter to the Supreme Court in terms of Article

126(3) of the Constitution.

Position of the Respondents

The position of the Respondents is that, "PI" was applied correctly, and the

correct number of marks was allocated to the application presented by the next

friend of the Petitioner on behalf of the Petitioner, and that as the number of

marks earned by the Petitioner was below the 'cut-off' mark for the 'proximity'

category, the Petitioner was not selected for admission to Grade 1 of Princess

of Wales' College for the year 2019.

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Learned Senior State Counsel drew the attention of this Court to Clause 10.1 of

the "Guidelines / Instructions and Regulation" ("P1"), which provides as

follows:

"Before the lapse of a period of 2 weeks after the displaying of the interim list in

the school Notice Board and tile school website, if it is found that the name of the child

who is not eligible has been included in a certain place in the list, an objection to that

effect and / or if the name of a child of an applicant is placed in an in-eligible

place when he is eligible, an appeal to that effect should be submitted

immediately to the Principal of the school under registered cover. Along with that

a self-addressed envelope should be sent with stamps required for registered post. Any

objection or appeal submitted after the lapse of two (02) weeks limit will not be

considered." (emphasis added)

She submitted that, it would thus be seen that the Petitioner had an

'administrative remedy' provided for in "P1". She submitted that, in the instant,

matter, the Petitioner has not submitted an appeal to the Principal against the

rejection of the application. Leamed Senior State Counsel submitted that, in

Nanda Nikapitiya vs. Upul Shantha De Silva and othersi, and Jayamaha vs. Provincial

Public Service Commission ii it has been held by this Court that the general

principle is that an individual should normally use 'alternative remedies'

where available, rather than 'judicial review'. This principle is applicable where

the alternative remedy is an administrative procedure, and the court would

require the party seeking judicial review to first exhaust such administrative

procedure before invoking the jurisdiction of the court. The failure to prefer an

appeal is not of a trivial nature. In the circumstances, learned Senior State

Counsel submitted that the Petition should be 'dismissed' due to the Petitioner

not having invoked the administrative appeal process prior to invoking the

jurisdiction of this Court.

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It was also pointed out by the learned Senior State Counsel that, the Petitioner

has sought contradictory reliefs from this Court, in that, in terms of paragraph

'D' of the prayer to the Petition, the Petitioner has sought a Writ of Certiorari

quashing the "Guidelines I Instructions and Regulation" ("PI"), and in terms

of paragraph 'B' of the prayer, the Petitioner has sought a Writ of Certiorari to

quash the decision contained in "P4" and "PS" declaring the Petitioner to be

ineligible to be admitted to Princess of Wales' College. Correspondingly, a Writ

of Mandamus has been sought requiring the Petitioner to be admitted to the

said school. The position of the learned Counsel for the Respondents was that,

for the purpose of seeking Writ of Certiorari and the Writ of Mandamus, the

Petitioner was relying on a certain interpretation of the clauses of "Fl", so that

certain number of marks could be allocated to the application of the Petitioner,

which would thereby entitle her to be admitted to Princess of Wales' College.

Thus, learned Senior State Counsel pointed out that while on the one hand the

Petitioner was seeking the quashing of "PI", on the other hand she was relyingr

on "Fl" to gain admission to the aforementioned school. Learned counsel

submitted that, on that ground too, the case for the Petitioner should fail.

Learned Senior State Counsel also submitted that by letter dated 20th December

2018 ("PS"), the Respondents had informed the Petitioner of their decision not

to admit the Petitioner to Princess of Wales' College. This Application had been

filed in the Registry of this Court on the 18th of March 2019, which is just under

three months of the refusal being communicated. Furthermore, the Petitioner

seeks the quashing of the "Guidelines I Instructions and Regulation" ("Fl"),

which had been issued on 31" May 2018. Learned Senior State Counsel

submitted that, there has been considerable delay on the part of the Petitioner

to impugn "PI" , as well as the decision not to admit the Petitioner to the school.

Learned counsel for the Respondents cited Sarath Hulangamuwa vs. Siriwardana,

Principal Visakha Vidyalaya and others iii, where it has been held that, an

application for a Writ of Certiorari should be filed within a reasonable period

of time. The longer the injured person sleeps over his rights without reasonable

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excuse, the chance of his success dwindles, and the court may reject the

application on the ground of unexplained delay.

Further, it was pointed out on behalf the Respondents, that the Petitioner has

acquiesced with "PI" by preferring an application in terms of "PI", and now

seeking a Writ of Certiorari to quash "PI" . On this ground too, learned Senior

State Counsel submitted that this Application should be dismissed.

Learned Senior State Counsel also submitted that, the Petitioner has sought

relief from this Court for referral of this Application to the Supreme Court in

terms of Article 126(3) of the Constitution, due to her failure to directly invoke

the jurisdiction of the Supreme Court within one month of the alleged

infringement of her Fundamental Rights, as provided in Article 126(2) of the

Constitution.

With regard to the plea of the Petitioner that this matter be referred to the

Supreme Court in terms of Article 126(3) of the Constitution, learned Senior

State Counsel brought to the attention of this Court the view expressed by the

Supreme Court in Shanthi Chanrasekaram us. O.B. Wijethunga and others;v, that

Article 126(3) of the Constitution is not an extension of or an exception to

Articles 126(1) and 126(2) of the Constitution. If a person who alleges that his

fundamental rights have been violated, fails to comply with Articles 126(1) and

126(2), he cannot smuggle that question into a writ application.

In all the above circumstances, learned Senior State Counsel moved that this

Court be pleased to dismiss this Application.

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Consideration by Court and findings

Merits of the Application

This Court will fust consider the entitlement of the Petitioner to marks in terms

of the applicable clauses in the "Guidelines I instructions and Regulation"

("Pl"). The purpose of this exercise is to arrive at a finding on whether or not

the allegation of the Petitioner, that she was not given the marks she was

entitled to, is well-founded. Thus, this Court carefully considered the 'Marking

Scheme' contained in "Pl". The position of the Petitioner is that, the application

presented on her behalf by her father (recognized in "Pl" as the 'Applicant')

came under and was processed under the 'proximity' category, which is

referred to in "Pl" as 'Children of residents in close proximity to the school'.

In terms of clause 6.0(a) of "PI", 50% of children who are to be admitted to the

relevant school, would be from this category. In terms of clause 6.l(a), all

persons residing within the 'feeder area' are entitled to apply under this

category. That during the relevant period of time the Petitioner lived within the

'feeder area' of the Princess of Wales' College, is not in dispute.

In terms of clause 6.1, the following marks would be assigned to the following

categories of documents that an applicant under the afore-stated' proximity'

category may submit:

(I) Main and additional documents in proof of residency:

Maximum - 35 marks

(II) Registration in the electoral register in proof of residency:

Maximum - 25 marks

(III) Proximity to the school from the place of residence:

Maximum - 40 marks

The fust of these categories, namely 'Main and additional documents in proof

of residency' has the following sub-categories, and the following maximum

marks are to be assigned for those sub-categories:

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(a) Main documents to be forwarded in proof of residency:

Maximum - 30 marks

(b) Additional documents in proof of place of living:

Maximum - 5 marks

It is necessary to note that, a slight confusion arises in "PI" with regard to

nomenclature of "main documents to be forwarded in proof of residency" and

"additional documents in proof of place of living". That is because, under the

first category referred to herein ("main documents to be forwarded in proof of

residency"), there is a sub category referred to as "other documents to confirm

the place of residence". Documents submitted falling under that sub-category

is to attract a maximum of 6 marks, subject to the broader category "main

documents to be forwarded in proof of residency" attracting a maximum of 30

marks. ·f ·

The bone of contention in this Application is that, while the Petitioner submits

that, the Petitioner is entitled to a minimum of 28.6 marks (and ideally, the

Petitioner submits to the maximum of 30 marks) for the 'Main documents to be

forwarded in proof of residency' category, the Petitioner was awarded less

marks for the said category.

In terms of "PI", 'main documents in proof of residency' means the following:

• Title deed

• Deed of gift / Certificate of ownership

• Government awards

• Documents issued under the Temples & Dewala Act

• Declaration deeds more than 10 years

• Houses purchased on housing loans / hire purchase agreements

• Continuously registered lease bonds

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• Other documents such as utility bills to confirm the place of residence (1 .5

marks per documents, subject to a maximum of 6 marks)

The scheme provides that, if the 'ownership' of the place of residence is in the

name of the applicant or the applicant's spouse (in this instance a reference to

the father or mother of the Petitioner) the applicant would be entitled to the

maximum of 30 marks. However, when the 'ownership' of the place of

residence is in the name of the mother or father of the applicant (in this instance

a reference to one of the grant parents of the Petitioner), the applicant would

be entitled to a maximum of 23 marks. The scheme also provides that, if these

documents are vested in the name of the applicant or his spouse or their parents

as the case may be for 5 or more years preceding the closing date for

application, the full complement (100%) of marks would be awarded. The

maximum number of marks would reduced to 80%, 60%, 40%, 20%, 10% and

5%, respectively, if the applicable period is 4,3,2,1 year or 6 months. (Thus, if<

a particular document has been in the name of the father of the Petitioner (i.e.

the Applicant) for 2.5 years, it is the view of this Court that 50% of the marks

should be assigned.)

According to the Petitioner, as regards this category, with regard to her place

of residence, the following documents had been submitted to the interview

panel.

(i) 'Deed of Transfer' No. 2761 and 2762 dated 5th July 1979 by which

the Petitioner's Grandmother - Dona Chandra Umayanga De Silva

acquired title to the land on which the residence is situated. ("P3A"

and "P3B")

(ii) 'Deed of Gift' No. 1086 dated 6th October 2003 by which the

Petitioner's Grandmother gifted the land to the Petitioner's Aunt

Welandawa Thanuja Prashanthi Cooray nee De Silva (Petitioner's

Father's Sister). ("P3C")

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(iii) 'Deed of Gift' No. 13618 dated 31st March 2016 by which the

Petitioner's Aunt and Grandmother gifted the land to the Petitioner's

Father - Welandawa Kumudu Darshana De Silva. ("P3D")

It is commonly known that, through a 'Deed of Gift' the 'ownership' of

property is transferred from the donor to the donee. It would therefore be seen

that, as at the time of the interview, the 'ownership' of the place of residence

had been with the Petitioner's Father (applicant) only for a period of 2.5 years.

Prior to that, for a period of 12.5 years, the ' ownership' of the property had been

with the Aunt of the Petitioner - Welandawa Thanuja Prashanthi Cooray nee

De Silva. During this period, as well as during the subsequent era, the property

on which the residence of the Petitioner is situated had been subject to the 'life

interest' of the Petitioner's Grandmother - Dona Chandra Umayanga De Silva.

In terms of the afore-stated marking scheme, no marks are to be assigned to a

'deed of transfer' or 'deed of gift', which reflects ownership in the name of a·' ·

sibling of the applicant (in this instance an Aunt of the Petitioner). Therefore,

in terms of the marking scheme contained in "PI", marks can be assigned only

for "P3D", which reflects ' ownership' of the property in the Petitioner's father

for a period of 2.5 years. Thus, the number of marks that can be assigned for

"P3D" is 50% of the total number of marks, and that would be 15. It is seen from

"P4" that the interview panel had assigned 25 marks for primary documents

establishing ownership. It seems that, the interview panel has given 10 marks

in excess of what the Petitioner is strictly entitled to, since prior to the 2.5 years

period immediately preceding application, the Petitioner's Grandmother had

'life interests' over the property in issue and is said to have been in possession

of the property. It must be noted that, on a strict application of the marking

scheme, that approach is incorrect.

Learned President's Counsel submitted that, the period from 2003 to 2016

should be recognized as a period during which the property on which the

Petitioner's residence is situated was' owned' by the Petitioner's Grandmother,

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since she had 'life interests' in the said property during this period and she

remained in possession and effective use of the property. The position of the

Petitioner is that, Deed of Gift No. 1086 was executed for the limited purpose

of facilitating the Petitioner's Aunt to obtain a loan to build a house on a

property situated elsewhere, and hence was a 'nominal transfer'. Thus, the

position of the learned President's Counsel was that, notwithstanding the

execution of Deed No. 1086, the Grandmother of the Petitioner - Dona Chandra

Umayanga De Silva remained to be the 'owner' of the property.

It is necessary to bear in mind that, in terms of Section 2(1) of the Evidence

Ordinance, the Ordinance shall apply to all judicial proceedings. That would

include proceedings in this Court invoking Article 140 of the Constitution.

Thus, both the 'relevancy' and 'admissibility' of what is purported to be

presented as 'evidence' even in these proceedings in the Court of Appeal,

should be regulated by provisions of the Evidence Ordinance. Therefore, even'

when adjudicating an Application seeking a mandate in the nature of a writ in

terms of Article 140 of the Constitution, this Court should take into

consideration only' evidence' which is both' relevant' and 'admissible' in terms

of the Evidence Ordinance. This seems to be sometimes overlooked by certain

counsel who settle pleadings in Applications before this Court.

In terms of Section 2 of the Prevention of Frauds Ordinance, no sale, purchase,

transfer, assignment (thus including gifts) or mortgage of land or other

immovable property shall be in force or avail in law, unless the same shall be

in writing and signed by the party making the same, or by some person

lawfully authorized by him, in the presence of a licensed notary public and two

or more witnesses present at the same time, and unless the execution of such

writing, deed, or instrument be duly attested by such notary and witnesses.

Thus, a gift relating to immovable property to be recognized and enforceable

by law, should be reduced to the form of a document which contains the

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characteristics contained in Section 2 of the Prevention of Frauds Ordinance. It

is such a document that is commonly referred to as a 'Deed of Gift' .

Section 92 of the Evidence Ordinance provides as follows:

"When the terms oj any such contract, grant, or other disposition oj property,

or any mailer required by law to be reduced to the form ora document, have

been proved according to the last section, no evidence oj any oral agreement

or statement shall be admitted as between the parties to any such instrument,

or their representatives in interest, Jor the purpose oj contradicting, varying,

adding to, or subtracting from its terms. " (emphasis added)

Thus, the following portions of the 'evidence' placed before this Court on

behalf of the Petitioner by her next friend, contained in paragraph 20 of his

Affidavit and printed in this Order in bold, in the opinion of this Court is

inadmissible, and therefore cannot be taken into considera tion. "Thereafter my

grandmother gifted the properh) to my Aunt (jather's sister) on 06.10.2003 with the

intention of enabling my Aunt to obtain a loan so that my Aunt could build a

house on a property elsewhere. I state that this was a nominal transfer for the

purpose of securing the loan and that for all intents and purposes my

grandmother had effective use and enjoyment of the property during this period

as she had retained life interest in the property."

Furthermore, this Court is of the view that, the duty of the interview panel was

to apply "PI" in accordance with the scheme contained therein, and not to

engage in application of deep rooted and contentious legal theory to the

circumstances of each applicant. In this matter, it is the duty of this Court to

consider whether in fact the Respondents and their representatives have

correctly applied the clauses contained in the ' binding process of regulation'

(applicable ' law') pertaining to the admission of students to goverrunent

schools, which regulations are contained in "Pl", and correctly assigned marks

to the Application relating to the Petitioner.

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• Clause 6.1.1 reads as follows: "If the documents mentioned below had been in the

name of the applicant/ SPOllse / their parents ... " Under category 'a' of that clause,

among others, the following documents have been listed: "Title Deeds" and

"Deeds of Gifts". It is thus seen that, when a purported 'Deed of Gift' is

presented the duty of the interview panel is to consider the following:

(i) Detennine whether the purported Deed of Gift is prima facie a

genuine document, and decide whether in fact it amounts to a 'Deed

of Gift'.

(ii) Detennine whether the ' Deed of Gift' relates to the property on

which the residence of the applicant is said to be situated.

(iii) Identify in whose favour the gift has been executed, i.e. whether it is

in favour of the applicant, applicant's spouse, or a parent of the

applicant. This is for the purpose of determining ' ownership' of the

property which should be ex-facie evident from the deed, and'

thereby detennine whether marks should be assigned and if so

whether the maximum number of marks to be assigned should be 30

or 23.

(iv) Detennine the date preceding the closing date of applications and

the Deed of Gift had come into operation, and accordingly calculate

the applicable time period, and thereby determine which percentage

of the maximum number of marks should be assigned.

In that regard, it is the view of this Court that, the interview panel has applied

clauses of "PI" to the given circumstances and apportioned marks to the

aforementioned 'Deeds of Gift' bearing Nos. 13618 and 1086, which is no less

than the marks the application submitted on behalf of the Petitioner was

entitled to in terms of the marking scheme.

In terms of "Pl", applicants are to be assigned up to a maximum of 6 marks for

'other documents' submitted in confirmation of the place of living. As stated

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• above, the assignment of these marks is subject to a maximum of 30 marks to

be given for both 'main documents' and 'other documents'. As the interview

panel had assigned 25 marks for the 'main documents' they could have

assigned only a maximum of '5' marks for the 'other documents'. However,

"P4" states that, 12 marks had been assigned by the interview panel for 'other

documents'. This is an obvious error on the part of the interview panel.

However, it is necessary to note that, the said error has not prejudiced the case

of the Petitioner, because if at all, the error has been to the advantage of the

Petitioner.

The next category for which marks are to be assigned is "Additional documents

in proof of place of living", for which a maximum of 5 marks could be assigned.

According to "P4" the maximum of 5 marks have been assigned to the

application of the Petitioner. Thus, the Petitioner has no ground of complaint

in that regard. The Petitioner also has no complaint regarding the allocation of'

25 marks (maximum) for 'registration in the electoral register', and the

allocation of 24 marks (out of a maximum of 40 marks) for 'proximity to the

school from the place of residence'. Thus, the allocation of marks for those

headings need not be reviewed by this Court.

It would thus be seen that the assignment of 66 marks to the application of the

Petitioner by the interview panel is in excess of the actual number of marks the

Petitioner is entitled to in terms of "P}", and is significantly less than the cut

off mark (75) for the year 2019, for the category under which the application

had been presented. Therefore, it is the view of this Court that, the non

selection of the Petitioner for admission to Grade 1 of Princess of Wales' College

for the year 2019, is not 'unlawful'. Therefore, this Court rejects the assertion of

the Petitioner contained in paragraph 23(C) of the Petitioner that, assignment

of marks to the application tendered on behalf of the Petitioner was incorrect,

unjust, unlawful, arbitrary, capricious or mala fide.

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• It is now necessary to refer to the objections raised by learned Senior State

Counsel for the respondents .

Non-exhaustion of alternative remedies and administrative procedures

Clause 5.4 of "PI" provides as follows:

If an applicant finds that his / her application has been rejected while there are necessary

qualifications, with relevant documentary proof a re-application (here only documents

fonvarded with previous application could be fonvarded) with a copy of the rejection

letter should be fonvarded to the Principal for reconsideration. This request should be

sent within one week of receiving the letter of rejection and the top left hand comer of

the envelop should clearly state "Grade one Admissions - Reconsideration".

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Further, as pointed out by the learned Senior State Counsel, clause 10.1 of "PI"

also provides for another administrative mechanism by which relief could be

sought.

Admittedly, the Petitioner has not invoked either clause 5.4 or 10.1 of "PI",

which stipulates administrative mechanisms by which she could have sought

redress. The Petitioner has not given any reason at all for not having sought

administrative redress. This Court also observes that, the afore-stated

administrative mechanisms provided for in "PI", in the opinion of this Court

are efficacious means by which the Petitioner could have attempted to obtain

relief, prior to invoking the jurisdiction of this Court. These two mechanisms

have been recognized by the relevant scheme itself, and should be

distinguished from routine and unregulated administrative mechanisms such

as presenting an appeal to the Minister in charge of the subject or to the

Secretary to the relevant Ministry. Particularly in instances such as this, when

there had been an administrative mechanism specifically provided by the

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• relevant regulations themselves, the Petitioner could have sought

administrative relief. When the Petitioner has not cited any reason as to why

she did not seek relief from having recourse to such administrative

mechanisms, this Court should consider that failure on the part of the Petitioner

as a factor that this Court should take into consideration when exercising

discretion. Particularly when alternate and expeditious administrative

mechanisms are available, Court should not favourably consider exercising

discretion in favour of a party who invokes the jurisdiction of this Court,

without initially attempting to obtain relief through available administrative

means.

In response to this objection that was raised by the learned Senior State

Counsel, learned President's Counsel cited the judgment in Somasunderam vs.

Forbes and anotherv, wherein it has been held as follows :

"There is no rule requiring alternative administrative remedies to be first exhausted, ·

without which access to review is denied. A Court is expected to satisfy itself that any

administrative relief provided for by statute is a satisfactory substitute to review before

withholding relieve by way of review."

Firstly, it must be observed that, the two administrative mechanisms provided

in "PI" is ex-facie satisfactory means by which the Petitioner may have sought

administrative relief .. Secondly, this Court must take judicial notice of the fact

that, on numerous occasions, parties that have sought administrative relief in

terms of the scheme provided for in "PI" have obtained relief in full or partial

relief in the form of addition of marks. This is evident from material placed

before this Court by Petitioners and Respondents in similar Applications.

Thirdly, if the administrative mechanisms that have been provided for are not

satisfactory, it was incumbent on the Petitioner to state reasons as to why she

is of that view, and also cite any additional reasons as to why she did not or

could not seek relief through such administrative mechanism. In this instance,

the Petitioner is totally silent as to why the Petitioner did not seek relief through

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• the administrative mechanisms provided for in "PI". In view of the forgoing,

this Court while expressing unreserved agreement with the view expressed in

Somasunderam vs. Forbes and another, wishes to distinguish this matter from the

facts and circumstances of that matter. It is important to highlight that this

Court does not subscribe to the view that as a rule an Application of this nature

should necessarily be dismissed due to the Petitioner not having attempted to

invoke administrative relief.

In this regard, as pointed out by the learned Senior State Counsel in her written

submissions, it is useful in the opinion of this Court to be reminded of the

opinion pronounced by Lord Donaldson of Lymington M.R. in R. vs. Panel on

Take-overs and Mergers, ex.p. Guinness PUY'.

"I approach this appeal by reminding myself that the judicial review jurisdiction of the

High Court, and of this Court in appeal, is a supervisory or "long stop" jurisdiction ...

consistently with this "long stop" character, it is IIOt the practice of the court to·(

entertain an application for judicial review unless and until all avenues of

appeal have been exhausted, at least in so far as the alleged cause of complaint

could thereby be remedied. TI,e rationale for this self-imposed fetter upon the exercise

of the courl's jurisdictioll is two fold. First, the poillt usually arises in the context of

statutory schemes and if Parliament directly or indirectly has provided for an appeals

procedure, it is not for the court to usurp the functions of the appellate body. Second,

the public interest normally dictates that if the judicial review jurisdiction is to be

exercised, it should be exercised very speedily and, given the constraints imposed by

limited judicial resources, this necessarily involves limiting the number of cases in

which leave to apply should be given." (emphasis added)

In the circumstances, this Court agrees with the submission of the learned

Senior State Counsel, that, this Application should be dismissed on the ground

that the Petitioner had not prior to filing this Application, sought relief through

the administrative mechanisms contained in "PI".

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Therefore, this Court holds that, on the ground that prior to invoking the

jurisdiction of this Court, the Petitioner had not availed herself of the

administrative mechanisms for relief provided for in "PI" without any valid

reason for such failure, and hence on that ground too this Applica tion should

fail and therefore should be dismissed.

Should this Application be referred to the Supreme Court in terms of Article

126(3) ofthe Constitution?

Paragraphs 27 and 28 of the Petition of this Application states as follows:

"The petitioner further states that the purported guidelines dated 31.05.2018 marked

PI is also in v iolation of her Fundamental rights guaranteed under Article 12(1) of tile

Constitu tion.

The petitioner respectfully pleads that if your Lordship's Court find that there is prima

facie evidence of an infringement or imminent infringement of Article 12(1) of the

Constitution, then in such situation to refer this matter forthwith for determination by,

the Supreme Court under the powers vested to Your Lordships court under Article

126(3) of the Constitution."

Paragraph "F" of the prayer to the Petition also states as follows:

"To refer this matter to the Supreme Court for determination regarding infringement

or imminent infringement of Article 12(1) of the Constitu tion."

In the course of Supporting this Application, learned President's Counsel for

the Petitioner submitted that, "PI" discriminates owners of property on which

they reside verses those who only lawfully possess and thereby reside in

property without owning such property. He submitted that the latter category

is denied equal protection of the law. He pointed out that, therefore the scheme

contained in "PI" infringes the fundamental right of the Petitioner guaranteed

in terms of Article 12(1) of the Constitution. In the circumstances, learned

Counsel submitted that, this Court acting in terms of Article 126(3) of the

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• Constitution should forthwith refer this Application to the Supreme Court for

adjudication.

If in fact, on a consideration of "PI" the Petitioner formed the view that, the

scheme contained therein was per-se discriminatory of the Petitioner or was

otherwise an infringement of the Petitioner's fundamental rights, or that the

application of the scheme contained in "PI" would result in an infringement of

the Petitioner's fundamental rights, the Petitioner could have in terms of Article

17(1) read with Articles 126(1) and 126(2) of the Constitution applied to the

Supreme Court in 2018 itself. Even if after the Petitioner received the letter of

rejection CPS") on 1st January 2019, had the Petitioner formed the view that the

scheme contained in "PI" had been applied to the application of the Petitioner

in a manner that amounted to an infringement of the Petitioner's fundamental

rights, the Petitioner was entitled to within one month thereafter invoke the

jurisdiction of the Supreme Court alleging an infringement of her fundamental, ·

rights. It is apparent that the Petitioner has not done so. In fact the Application

to this Court had been filed as late as on the 18th March 2019.

Article 126(3) of the Constitution provides as follows:

"Where in the course of hearing in the Court of Appeal into an application for orders

in the nature of a writ of habeas corpus, certiorari, prohibition, procedendo, mandamus

or quo warranto, it appears to such Court that there is prima facie evidence of an

infringement or imminent infringement of the provisions of Chapter III or Chapter IV

by a party to such application, such Court shall forthwith refer such matter for

determination by the Supreme Court."

That the Petition itself contains an averment that "PI" is an infringement of her

fundamental right guaranteed in terms of Article 12(1) of the Constitution

makes it evident of the confidence the Petitioner has in that regard. In the

circumstances, the Petitioner could have directly invoked the jurisdiction of the

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Supreme Court and complained of the alleged infringement of her

fundamental rights guaranteed by the Constitution. As pointed out by the

lea rned Senior State Counsel in her written submissions, the Petitioner has not

given any reason as to why she did not invoke the jurisdiction of the Supreme

Court in that regard. Therefore, it must be inferred by this Court that, the

Petitioner while being steadfast in her belief that her fundamental rights have

been infringed by executive or administrative action, has for some inexplicable

reason failed to invoke the jurisdiction of the Supreme Court vested in that

Court in terms of Articles 17 of the Constitution read with Articles 126(1) and

126(2) of the Constitution. Having failed to do so, it appears to this Court that

the Petitioner is attempting to belatedly invoke the fundamental rights

jurisdiction of the Supreme Court by moving this Court to refer this matter to

the Supreme Court in terms of Article 126(3) of the Constitution.

In this regard, as pointed out by the learned Senior State Counsel, it is useful to"'

be reminded of the views expressed by Justice Mark Fernando in Shanthi

Chandrasekeram vs. 0.8. Wijetllngavii that, "A rticle 126(1) confers sole and exclusive

jurisdiction in respect of fundamental righ ts and Article 126(2) prescribes fww that

jurisdiction may be invoked. Article 126(3) is not an extension of or exception to those

provisions. If a person who alleges that his fundamental rights have been violated fails

to comply with them, he cannot smuggle that question into a writ application in which

relief is claimed on different facts and grounds, and thereby seek a decision from the

Supreme Court." This view of the Supreme Court has been echoed by this Court

in Karnnathilake vs. Liyanage, inspector of Police (Crimes), Gampaha and othersviii.

Learned Senior State Counsel has submitted that, "the Petitioner hav ing failed to

adhere to the timelines set out in A rticle 126 of the Constitution, had sought to pervert

the Constitutional process by seeking a reference to the Supreme Court v ia the Court

of Appeal". Given the circumstances of this Application and the contents of the

Petition, this Court is finds it difficult to disagree with that submission of the

learned Senior State Counsel. In view of the foregoing, the irresistible

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• conclusion this Court has arrived at is that, in this Application what the

Petitioner has sought to do is the very same thing that the Supreme Court and

the Court of Appeal in the earlier mentioned cases has held that a litigant

cannot be allowed to do. This Court believes that, in the given circumstances of

this Application, the attempt by the Petitioner was to abuse Article 126(3),

which this Court has the duty to prevent. In the circumstances, this Court

concludes that, this Court should not refer this matter to the Supreme Court in

terms of Article 126(3) of the Constitution. In any event, it is necessary to be

reminded that, as held by Justice Saleem Marsoof in Centre for Policy Alternatives

(Guarantee) Ltd. and another vs. Commissioner of Elections and 7 othersix the stage

at which this Court is required to consider based on the existence of prima-facie

evidence as to whether a matter should be referred to the Supreme Court or

not, is the "hearing" phase, which takes place following the issue of 'Notices'

to the Respondents, filling of objections, and the matter being taken up for

'Argument', and not during the current phase, which is referred to as the

'Support' phase.

Should the "Guidelines / Instructions and Regulation regarding admission

of children to Grade I" ("Pl.") be quashed?

In paragraph "D" of the prayer to the Petition, the Petitioner has prayed that

"Pl." be quashed by the issue of a mandate in the nature of a writ of certiorari.

In Shavanthi Lakshika Samarakoon and another vs. The Secretary Ministry of

Education and othersx this Court had to consider whether the identical 'binding

process of regulation' ("P1") should be quashed either in its entirety or in part.

For the same reasons contained therein, this Court is of the opinion that, the

Petitioner of this Application too has failed to submit any legally valid ground

on which the said document should be quashed. ft is necessary to state that,

this Court is not possessed with the jurisdiction to determine whether the

scheme contained in "PI" amounts to an infringement of the fundamental

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rights guaranteed in terms of the Constitution. It is not challenged that "PI"

was issued by the 2nd Respondent ultra-vires his powers or is contrary to law.

Nor can it be held that, the scheme contained in "PI" is wholly unreasonable.

Therefore, there is no basis to conclude that "PI" is an 'unlawful' or 'void'

document. In any event, as pointed out in the afore-mentioned Application,

this Court has to take judicial notice of the fact that, literally tens of thousands

of students would have been admitted to Grade 1 of government schools in

2019 in terms of "PI", and is therefore this Court is conscious of the chaos that

would be created by granting the relief prayed for by the Petitioner to quash

"PI" by the issue of a mandate in the nature of a writ of certiorari.

This Court wishes to note that, in any event, paragraph "C" of the prayer to the

Petition, the Petitioner has sought a Writ of Mandamus from this Court

directing the 1st Respondent to admit the Petitioner to Grade 1 of Princess of

Wales' College, Moratuwa. An examination of the Petition reveals that, the'

Petitioner relies on the scheme contained in "PI" (which she alleges is an

infringement of her fundamental rights) and a particular interpretation of

certain clauses of that scheme (with which this Court is not in agreement with)

and assignment of marks based on that interpretation, to justify his claim for

entitlement to obtain admission to the school, and therefore for a writ of

Mandamus. Thus, the Petitioner on the one hand relies on the scheme

contained in "PI", while on the other hand seeks the quashing of "PI". There

is an inherent contradiction in that approach. In the circumstances, discretion

cannot be exercised in favour of the Petitioner.

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• ... .. For the reasons set out above, this Court is of the view that, the Application of

the Petitioner lacks merit, and the Petitioner has not satisfied the initial

threshold requirement whkh would warrant this Court to issue formal Notice

of this Application to the Respondents. In the circumstances, the Application

of the Petitioner is hereby dismissed, without costs.

I agree.

i CA(PHC) 11/2014 ii CA(PHC) 188/2014 ;n (1986) 1 SLR 275 ;, (1992) 2 SLR 293 , (1993) 2 SLR 362 ,; (1990) 1 QB 146 ,ii (1992) 2 SLR 293 ,;n (2005) 1 SLR 276 ;, 2008 (B.L.R.) 372

Honourable Justice Yasantha Kodagoda, PC

President, Court of Appeal

Honourable Justice Arjuna Obeyesekere .,

Judge of the Court of Appeal

'CA Writ Application No. 67/2019, CA Minutes of 22 0' November 2019

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