Legal Services and Laws of Sri Lanka


SLR-1995 Vol.1-P148

SLR - 1995 Vol.1, Page No - 148

W. K. C. PERERA
v.
PROF DAYA EDIRISINGHE AND OTHERS

SUPREME COURT.

FERNANDO, J.

DHEERARATNE , J. AND

WADUGODAPITIYA, J.

S.C. APPEAL NO. 18/95
C. A. NO. 207/93

JULY 06, 1995

Writs of Certiorari and Mandamus - Rules and Regulations for the conferment of Degree - Main subject - Common subject -Core
subject - Degree in Fine Arts - Articles 3,4(d) and 12 of the Constitution.

Held:
Under the Rules "Advanced Drawing" was not a main subject for the final examination for the Degree of Bachelor of FineArts.
Where the Rules are clear and unambiguous it is impermissible and unnecessary to refer to the Examination Criteriainorder
to interpret the Rules. For a student who has selected Design, "Advanced Drawing" is a subject but not a "Main subject".
In respect of a student who selected Design the only requirement for an ordinary pass is that she shouldobtainanaverage
of 40% in the examination. The Art and Sculpture section includes Design and Graphicsaswellandtheappellanthadto
obtain "C" (40 to 59%) passes. She satisfied both these requirements. Thus the appellant satisfied allrequirementsofthe
Examination Criteria for an ordinary pass and thereby became entitled to the award of the Degree.
Article 12 of the Constitution ensures equality and equal treatment even where a right is not granted by common law,statute
or regulation, and this is confirmed by the provisions of Articles 3and4(d).ThuswhethertheRulesandExamination
Criteria have statutory force or not, the Rules and Examination criteria read with Article12conferarightonaduly
qualified candidate to the award of the Degree and a duty on the University to award such degree withoutdiscriminationand
even where the University has reserved some discretion, the exercise of that discretion would also be subject to Article12,
as well as the general principles governing the exercise of such discretions.
The petitioner, having satisfied the Rules and Examination Criteria, was entitled to the award of the Degree ofBachelorof
Fine Arts on the results of the Final Examination held in 1990. The University ofKelaniyaandtheInstitutearepublic
bodies set up by statute and performing public functions, using public funds. Under the Rules and ExaminationCriteriaread
with Article 12 there was a public duty cast upon its officers, enforceable by mandamus to take necessary steps to awardthe
appellant that Degree.

The appellant is also entitled to an order in the nature of a writ of Certiorari to quash the refusal bytheUniversityof
Kelaniya and/or the Institute of Aesthetic Studies and/or its officers to award her the Degree of Bachelor of Fine Arts.
Cases referred to:
1. Sannasgala v. University of Kelaniya (1991) 2 Sri LR 193

2. Alphonso Appuhamy v. Hettiarachchi (1973) 77 NLR 131.
APPEAL from judgment of the Court of Appeal.
R. K. W Goonesekera with J. de Almeida Gunaratne for the petitioner-appellant.

Mohan Peiris Senior State Counsel for the respondent-respondents.

May 27, 1992.

FERNANDO, J.
The Petitioner-Appellant ("the Appellant") claims that she is entitled to be awarded the Degree of Bachelor of FineArtsof
the Institute of Aesthetic Studies of the University of Kelaniya ("the Institute"), because, she says, she had satisfiedall
the requirements of the applicable rules and regulations. She appeals to this Court against the order of the Court ofAppeal
dismissing her application for Certiorari and Mandamus.

It is common ground that, having joined the Institute in 1984, the Appellant successfully completedthefirst,secondand
third examinations. She was admitted in 1988 to the course of studies leading to the fourth (andfinal)examination,which
was held in 1990 (the delay being due to the disruption of University courses in 1988-89). She obtained anaverageofover
40% at the final examination, her detailed results being as follows:
1. 3-dimensional Designs:C ("main subject")
2. Types, Colours and Decor :C ("main subject")
3. History of the Arts:C ("common subject")
4. Textile Printing :B ("common subject")
5. Advanced Drawing: D
Grading was on the basis that "A" was 75 to 100 marks, "B" was 60 to 74, "C" was 40 to 59, "D" was 35 to 39, and "E" was 0
to 34 marks.
Although in terms of the applicable Rules the Appellant shouldalsohavesatforanother"commonsubject"(Scientific
Foundation of the Arts) and for the "technical subject" which formed part of the "main subject" selectedbyher,itwould
seem that, as the Appellant avers, the requisite courses of studies had not been conducted becauseofthethenprevailing
conditions, and hence the Institute had decided not to require candidates to be examinedinthosetwosubjects.However,
nothing turns on this, because the only dispute, in both Courts, was whether "Advanced Drawing"wasa"mainsubject"and
whether the Appellant should have obtained a "C" grade in that subject.
The question whether "Advanced Drawing" was a "main subject", and what grade was required, has to be determined byreference
to two documents issued by the Institute to its students, namely its Rules prescribing thesyllablforeachyearofthe
degree course, and its published "Examination Criteria".

The relevant provisions of the Rules are as follows:
1. A fourth-year student must select a "main subject" from among four subjects: Art, Graphics, Sculpture and Design.

2. Every Student was obliged to take four "Common " subjects, namely -
(a) History of the Arts
(b) One "subsidiary" subject (Art, Graphics, Sculpture, Leather, Textiles, Metal, Wood or Ceramics)
(c) Advanced Drawingand
(d) Scientific Foundation of the Arts.

3. The course content of the four "main subjects" was describedeach involved three or more subjects or papers.

4. "Design" which was the "main subject" selected by the Appellant, included:
(a) 3-dimensional Designs
(b) Types, Colours and Decorand
(c) Architecture, Arithmetic, Examples of Industrial Designsand Geometrical Drawing (which, for convenience, 1willrefer
to, collectively, as the "technical subject").

5. "Advanced Drawing" dealt, essentially with the human body, while the topics included in the"technicalsubject"related
to knowledge and skills of a mathematical and technical nature, such as algebra, geometry, trigonometry, and the like.
Several contentions were advanced in support of the Institute's position that "AdvancedDrawing"wasa"mainsubject"-
although the Rules described it as a "common subject" - because, it was argued,itwaspartofthecoursecontentfor
"Design". Firstly, it was said that "Advanced Drawing" was "a common paper on the main subject" of Design(and,presumably,
of the other "main subjects" as well)secondly, that itwasnecessarilyacoresubjectofanyDegree inArtsand
Sculpture, and therefore a pass (presumably, a "C" pass) was mandatoryand finally, that in relation to the"mainsubject"
of Design, "Advanced Drawing" must be regarded as the equivalent of the "technical subject". The Court ofAppealheldthat
the paper on "Advanced Drawing" appeared to relate to the "technical subject"that it was a component of the "mainsubject"
Designand that it was a "core subject" "in the Arts and Sculpture section in Artistic Designing".

These observations and conclusions are clearly erroneous. The Rules only draw a distinction between"mainsubjects"(which
include their constituent components) and "common subjects" (one of which is termed a "subsidiary" subject).Theyrecognise
no other distinctions between subjects. They neither require nor permit the reclassification ofa"commonsubject",under
the guise of interpretation, as a "core subject", or as a "common paper of a mainsubject" ortheequatingofa"core
subject" to a "main subject". What they describe as a "common subject" for the course, cannot be treated as a "coresubject"
or as a "common paper" of the "main subject". The Rules are clear, contain no ambiguities,andgiverisetonomanifest
absurdity or injustice. To introduce new concepts, relating to "core subjects", "common papers", etc, is to departfromthe
process of interpretation, and thereby to amend or re-write the Rules based on subjective perceptions astotheimportance
of a subject, inconsistently with the intention of those who framed the Rules, as appearingfromthelanguagetheyused.
Further, the Rules did not equate the (artistic) skills involved indrawingthehumanbody,tothe(technical)skills
involved in the "technical subject", and there is a reasonable basis for the view that skillsoftheformerkind,though
vital for Art or Sculpture, were not so important for Design.
I have no hesitation in holding that under the Rules "Advanced Drawing" was not a "main subject".
It is both impermissible and unnecessary to refer to the "Examination Criteria" in ordertointerprettheRulesonthis
aspect, because the Rules are clear and unambiguous. However, scrutiny of the ExaminationCriteriarevealsthattheyare
wholly consistent with the Rules. They may be summed up thus:

1. The First three paragraphs prescribe, in sequence, the requirements which a candidate must satisfy to obtain honours
(first class, upper second, and lower second, respectively), namely -
(a) a specified average in the whole examination (70%, 65% and 55%, respectively), and
(b) Specified grades ("A" for a first class, and at least "B" for a second class) in certain subjects.

2. Some of these subjects are specified in these three paragraphs,whiletheremainingsubjectsaredescribedas"the
subjects set out in the Note K, relevant to the main subject selected by the student in the Arts and Sculpture section".

3. Note K refers to the four main subjects (there being a misdescription, in regard to "Design", which I will ignore) andin
relation to each main subject, three subjects are mentioned. "Advanced Drawing" is included inrelationtoallfourmain
subjects.

4. Note K appears immediately after the third paragraph, and admittedly applies to the first three paragraphs.

5. Note K is followed by the fourth paragraph, which makes no reference to Note K. It sets out the criteria foranordinary
pass, namely - "Pass While an average of 40% is required to obtain an ordinary pass, in the Dance Section...,andinthe
Art and Sculpture Section candidates must obtain a "C" grade pass in the main subject and in the History of the Arts."
Learned Senior State Counsel submitted that Note K makes "Advanced Drawing" a "main subject" - both for honoursandforan
ordinary pass. Had there been some ambiguity in the Rules as to whether "Advanced Drawing" was a"mainsubject",itmight
have been legitimate to resolve that ambiguity by reference to the Examination Criteria and Note K. However, intheabsence
of any ambiguity, Note K cannot alter the Rules. That apart, Note K properly read,doesnotevensuggestthat"Advanced
Drawing" is a "main subject". While the English translation is far from satisfactory, the Sinhala textofthefirstthree
paragraphs clearly refers to "the subjects set out in Note K, relevant to the main subject",andnot,astheRespondents
contend, to "the main subject set out in Note K ...". Thus, for a student who has selected Design, "AdvancedDrawing"isa
subject (but not a "main subject") in which she must obtain superior grades in order to obtain honours.However,sincethe
fourth paragraph of the Examination Criteria does not refer to Note K, nothing in Note K canbetreatedasmodifyingthe
requirements for an ordinary pass specified in that paragraph. Even if there had beenanydoubtorambiguity,sincethe
document was one prepared and issued by the Institute, the contra preference rule of interpretation must beapplied,soas
to give the student, and not the Institute, the benefit of that doubt or ambiguity.

In my opinion, Note K is inapplicable to an ordinary pass, and inanyeventdoesnotmake"AdvancedDrawing"a"main
subject".
It is arguable that in respect of a student who selected Design the only requirement for an ordinary pass is that sheshould
obtain an average of 40% in the examination. This requirement the Appellant satisfied. However, it may be that "theArtand
Sculpture section" includes Design and Graphics as well, in which event the Appellant should also haveobtained"C"passes
in her "main subject" and in History of the Arts: this too she did. She thereforesatisfiedalltherequirementsofthe
Examination Criteria for an ordinary pass, and thereby became entitled to the award of the Degree.

Learned Senior State Counsel conceded that, upon this finding, we should grant Certiorari to quash the decision not toaward
the Appellant the Degree. He contended however, that we should not grant Mandamus to compel theawardoftheDegree,but
only to require the relevant authorities to consider the question of awarding that Degree. He alsoclaimedthattherehad
been no refusal to award her the Degree. He also submitted, firstly, that there was no public duty toawardaDegree,and
that no one had a right to the award of a Degree (citing Sannasgala v. University of Kelaniya (1)), andsecondly,thatany
institution awarding Degrees had a residual discretion to withholdaDegree,evenifthecandidatehadsatisfiedthe
relevant regulations. He submitted that the Appellant was "weak" in "Advanced Drawing", having failed in that subject inthe
first, second and third examinations, and having passed in that subject, ineachcase,onlyonhersecondattempt.He
suggested that the Appellant might more appropriately have sought relief under Article 126 for the alleged failuretoapply
the Rules and Examination Criteria uniformly.
It is clear from the conduct of the University, the Institute, and their officers (including the undue delay inreplyingto
the Appellant's several appeals) that there was a refusal to award the Appellant the Degree to which she wasentitledunder
the Rules. By a letter dated 12.11.92 she was informed that the original decision of the Board of Examinationcouldnotbe
changed. And indeed it is that refusal which we are now called upon to quash by Certiorari.

While it was possible for the Institute to have reserved the right towithholdtheDegree,evenwhereacandidatehas
satisfied the relevant rules and regulations, there is no such reservation in the Rules and Examination Criteriawhichhave
been produced. Our attention was not drawn to any other provision whereby any such discretion was reserved. Thedecisionin
Sannasgala is not relevant for two reasons. Firstly, it would appear that there were norulesentitlingthecandidatein
that case to the award of a Degree. Secondly, although there are dicta suggestingthattheUniversitywouldhavehada
discretion, even if there had been such rules,thoseobservationswereinthecontextofadecisionreachedbefore
fundamental rights were constitutionally entrenched in 1978. Prior to 1978 it was held in Alphonso Appuhamy v.Hettiarachchi
(2), that section 18(1) (a) of the 1972 Constitution did not itself confer a right to equality or toequalprotection,and
would come into operation only where a complainant was able to establish that he had acquired a right to beprotected(i.e.
under some other statute or regulation), because section 18(1) (a) "does not protect non-existentrights"(perRajaratnam,
J. at 140-141). Pathirana, J. who delivered the principal judgment did not refer to the fundamental rightsaspect.Butnow
there is no doubt that Article 12 ensures equality and equal treatment even where a rightisnotgrantedbycommonlaw,
statute or regulation, and this is confirmed by theprovisionsofArticles3and4(d).Thus,whethertheRulesand
Examination Criteria have statutory force or not, the Rules and Examination Criteria, read with Article 12,conferaright
on a duly qualified candidate to the award of the Degree, andadutyontheUniversitytoawardsuchDegreewithout
discriminationand even where the University has reserved some discretion, the exercise of thatdiscretionwouldalsobe
subject to Article 12, as well as the general principles governing the exercise of such discretions.

The fact that by entrenching the fundamental rights in the Constitution thescopeofthewritshasbecomeenlargedis
implicit in Article 126(3), which recognises that a claim for relief by way of writ may also involveanallegationofthe
infringement of a fundamental right. While learned Senior State Counsel is correct in suggesting that the Appellant mayhave
sought redress under Article 126(2), she was also entitled to apply to the Court of Appeal for Certiorari andMandamus,and
when it appeared that there was, prima facie, an infringement of a fundamentalright,thewholemattercouldhavebeen
referred to this Court under Article 126(3).

I hold that, having satisfied the Rules and Examination Criteria, the petitioner was entitled to the award of theDegreeof
Bachelor of Fine Arts on the results of the final examination held in 1990. The University of Kelaniya and the Instituteare
public bodies set up by statute and performing public functions, usingpublicfunds.IholdthatundertheRulesand
Examination Criteria, read with Article 12, there was a public duty, cast upon itsofficers,enforceablebyMandamus,to
take the necessary steps to award the Appellant that Degree.
The Appellant is entitled to an order in the nature of a writ of CertioraritoquashtherefusalbytheUniversityof
Kelaniya and/or the Institute of Aesthetic Studies and/or its officers to award her the Degree of Bachelor of Fine Arts,and
to an order in the nature of a writ of Mandamus directing the 1st, 2nd and 3rdRespondentstotakeallnecessarysteps,
within the scope of their powers, duties and functions, to award her that Degree.

The appeal is allowed, the order of the Court of Appeal is set aside, and orders for the issue ofCertiorariandMandamus,
as aforesaid, are substituted. The Appellant is entitled to a sum of Rs. 20,000 as costs in both Courts.

DHEERARATNE, J. - I agree.
WADUGODAPITIYA, J. - I agree.
Appeal allowed.


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