Law-Report-part-1.pdf

2 Sri Lanka Law Reports [2011] 1 SRI L.R.
per gamini amaratunga, j., –
". . . . somathilake who was present at the time the complain-
ant pointed out the appellant had seen the complainant point-
ing out the appellant as the person who took money from him.
this is direct evidence given by somathilake as to what the
complainant did in his presence. section 3 of the evidence
ordinance provides that a "fact" means and includes "any thing.
. . capable of being perceived by senses." somathilake had seen
the complainant pointing out the appellant. this is evidence of
fact (the act of the complainant pointing out the accused) seen by
somathilake (perceived by his senses)……"
(2) the witness remembered that on a previous occasion he had
identifed the relevant person, but could not remember at the time
of the trial the exact person identifed by him on that previous
occasion. In such situation other evidence is admissible to show
that the witness identifed a particular person.
(3) In terms of section 26 of the bribery act, where a court convicts a
person for an offence committed under part II of the bribery act by
accepting a sum of money, a sum which is equal to the gratifcation
accepted shall be imposed as a penalty. the stipulation in section
26 is mandatory.
Cases referred to:-
(1) King v. Hendrick 48 nlr 396
(2) Regina v. Osborne and Virtue (1973) Qb 678
AppeAl from the judgment of the high court (colombo)
Ranjan Mendis with Ashoka Kandambi and Ms. Sunimal Mendis for the
accused appellant.
Thusith Mudalige, S.S.C., for respondents
Asitha Anthony, Asst. Director (Legal), commission to Investigate
allegations of bribery or corruption for the 2nd respondent.
Cur.adv.vult
july 21th 2011.
gAmini AmArAtungA, J.
this is an appeal, with leave granted by this court,
against the conviction and the sentence of the accused

Wanasinghe V. Hon. Attorney General And Others
SC (Gamini Amaratunga, J.) 3
appellant (the appellant) on charges framed under the
provisions of the bribery act.
before I set down the question of law on which leave
to appeal was granted, it is pertinent to set out in brief the
facts relevant to the case presented against the appellant. In
the early hours of 01.11.2002 the dambulla police detected
the complainant piyasoma driving a motor vehicle with a
defective headlight. the police warned him to replace the
defective headlight within fourteen days and show the vehicle
to the police. his driving licence was taken by the police and
he was given a temporary licence valid for fourteen days.
the complainant failed to replace the defective headlight
within the stipulated time period. on 18.11.2002 he visit-
ed the bambulla police station to get his temporary licence
extended. When he spoke to the Offcer in Charge of the
traffc branch, he was referred to another offcer (the appellant)
of the traffc branch, who was dressed in civilian clothes.
That offcer asked the complainant to wait out side. A little
while later that offcer came out and asked the complainant
"how much money do you have?" When the complainant said
that he had Rs. 300/-, that offcer told him that in the event
of a case being fled against him, the fne would be around
rs. 750/-. the appellant asked for rs. 300/- to return the
complainant's driving license. When the complainant said
that he needed rs. 100/- for his bus fare, the appellant asked
for rs. 200/- to return the licence. the complainant who had
a currency note of rs. 200/- denomination gave it to the
appellant and got back his driving licence from the appellant.
(It appears that at the time of this transaction currency notes
of rs. 200/- denomination were in circulation but had been
withdrawn later by the central bank).
having got his driving licence, the complainant walked
into the A.S.P’s Offce which was in the premises adjoining

4 Sri Lanka Law Reports [2011] 1 SRI L.R.
the police station and complained to the a.s.p. that money
was taken from him by a police offcer to return his driv-
ing licence without fling a case against him. The A.S.P. then
telephoned the dambulla police station and ordered all
offcers of the traffc branch to come to his offce. Thereafter
several police offcers, led by the O.I.C., Traffc, appeared
before the a.s.p. and the latter then explained the reason
for summoning those offcers to his offce and requested that
if any offcer had taken money from the complainant such
offcer should come forward and own it. None came forward.
Then the O.I.C., Traffc, suggested to ask the complainant
to point out the person who took money from him. the
complainant then pointed out the appellant. It is pertinent to
note that according to the evidence led at the trial, there was
no immediate protest of innocence by the appellant when he
was pointed out by the complainant as the person who took
money from him.
According to the evidence of I.P. Somatilaka, O.I.C., Traffc
(against whom there was not even a suggestion at the trial
that he was giving false evidence against the appellant) after
the complainant pointed out the appellant, the a.s.p. told
the appellant to hand over the money he had taken from the
complainant and then, the appellant, in response to that
request handed over a currency note of rs. 200/- denomi-
nation to the a.s.p. this is an item of evidence relating to
the conduct of the appellant, relevant and admissible under
section 8(2) of the evidence ordinance. after the appellant
handed over the currency note, he was searched by the o.I.c.
(on the order of the a.s.p.) and the appellant had no money
with him.
at the trial before the learned magistrate, four years later,
the complainant had stated that he pointed out to the a.s.p.

Wanasinghe V. Hon. Attorney General And Others
SC (Gamini Amaratunga, J.) 5
the person who took money from him, but he could not say
for sure, that it was the accused (the appellant), who was
present before court, was the person pointed out by him
before the a.s.p.
thus this case presented a situation where the witness
remembered that on a previous occasion he had identifed
the relevant person, but could not remember at the time of
the trial the exact person identifed by him on that previous
occasion. In such a situation other evidence is admissible
to show that the witness identifed a particular person. This
legal position was recognized in sri lanka in King vs.
Hendrick(1). even in english law the position is the same.
Regina vs. Osborne and Virtue(2).
I.p. somathilaka who was present when the complainant
pointed out the appellant in the presence of the A.S.P. testifed
that it was the appellant who was the person pointed out by
the complainant. this evidence established the identity of the
appellant as the person picked up by the complainant in the
presence of the a.s.p.
at the trial the appellant had made a dock statement
denying the allegation made against him. he was convicted
by the Magistrate on the evidence I have briefy set out above.
The conviction was affrmed by the High Court in appeal.
this court had granted leave to appeal on the following
question of law. "did the high court err in its failure to
appreciate that the learned magistrate has admitted and
acted upon the evidence of a.s.p. lal kumara and I.p.
somathilake in contravention of section 110(3) of the
criminal procedure code, particularly in relation to the
identifcation of the accused?"
section 110 of the code of criminal procedure act
no. 15 of 1979 makes provision relating to the recording of

6 Sri Lanka Law Reports [2011] 1 SRI L.R.
statements in the course of an investigation commenced
under section 109 of the code regarding the commission of
an offence.
section 110(3) of the code provides that "a statement
made by any person to a police offcer in the course of any
investigation may be used in accordance with the provisions
of the evidence ordinance except for the purpose of
corroborating the testimony of such person in court."
In the present case, according to the evidence of a.s.p.
lal kumara, when the complainant informed him of the fact
of taking Rs. 200/- by a police offcer, he did not commence
an investigation into the commission of an offence under the
bribery act. he merely wanted to ascertain the identity of
the police offcer to take disciplinary action against him. That
was the sole object of his endeavour to ascertain the identity
of the culprit. according to the a.s.p. after he ascertained
the identity of the offcer who had taken money from the
complainant, he submitted a report to his superior offcer to
take disciplinary action against him and the superior offcer
had referred the matter to the bribery commission.
according to the a.s.p.'s evidence no statement was
recorded by him in terms of section 110 from the complainant
before the latter picked up the appellant as the person who
took money from him. at the trial, the complainant's evidence
was that he pointed out the person who took money from him
to the a.s.p. , but he could not say with certainty whether
it was the appellant who was present at the trial as the
accused. there was no question of corroboration arising from
this evidence. the question that was before the court at that
stage was whether the person pointed out by the complainant
before the a.s.p was the appellant who was present in court
as the accused. evidence on this fact came from witness
somatilake who was present at the time the complainant

Wanasinghe V. Hon. Attorney General And Others
SC (Gamini Amaratunga, J.) 7
pointed out the appellant. somatilake had seen the
complainant pointing out the appellant as the person who
took money from him. this is direct evidence given by
somathilake as to what the complainant did in his presence.
section 3 of the evidence ordinance provides that a "fact"
means and includes "any thing… capable of being perceived
by senses." somatilake had seen the complainant pointing
out the appellant. this is evidence of a fact (the act of the
complainant pointing out the accused) seen by somatilake
(perceived by his senses). this is direct evidence of somatilake
of an act done by the complainant in his presence and seen
by him.
section 110(3) of the code of criminal procedure act
prohibits the use of the written record of a statement recorded
under and in terms of section 110(1) in the course of an
investigation. In this case there was no such statement in
existence. section 110(3) does not shut out direct evidence of
a police offcer of any thing done or said by a witness or an
accused (except a confession of an accused) in his presence
and seen or heard by such police offcer.
for the reasons set out above. I answer the question of
law on which leave to appeal was granted in the negative.
the learned counsel for the appellant, in his additional
written submissions tendered after the hearing of the appeal
has submitted that the evidence of identity alone was not
suffcient to fnd the accused appellant guilty of the charges
framed against him. he has submitted that the recovery of a
rs. 200/- note from the appellant is not an item of evidence
supporting the charges against him as it is not unusual for
a person to have a rs. 200/- note in his possession as his
own money. the substance of this submission is that the
appellant's possession of a rs. 200/- note is a mere

8 Sri Lanka Law Reports [2011] 1 SRI L.R.
coincidence. If it was a mere coincidence, the appellant
indeed is a very unfortunate man!
on the other hand, at no stage, either in the presence
of the a.s.p. and I.p. somatilake or at the trial before the
learned magistrate, the appellant had taken up the posi-
tion that the rs. 200/- note was his own money which he
had in his possession. In his dock statement the appellant's
position was that nothing was recovered from him! I therefore
reject the submission made by the learned counsel. at
the time the complainant frst came before the A.S.P. the
complainant had his driving licence with him which had been
taken by the police two weeks prior to that date. there was no
entry in the relevant books kept at the police station regard-
ing the return of the licence to the complainant. the evidence
of the O.I.C. traffc showed that the appellant had opportunity
to have access to driving licences kept in the traffc branch.
on the evidence led at the trial, the learned magistrate had
quite rightly convicted the appellant and the high court was
justifed in dismissing the appeal. This appeal is accordingly
dismissed.
In respect of charges 1 and 3 framed under section 16(b)
of the bribery act, the appellant has been sentenced to eight
months rI in respect of each count making the total period
of imprisonment sixteen months. In addition a fne of
rs. 5,000/- has been imposed in respect of each count. In
respect of counts 2 and 4 framed under section 19(c) of the
Bribery Act, a fne of Rs. 5,000/- has been imposed for each
count. The total amount of fnes is Rs. 20,000/-. A default
term of one month R.I. for each fne was also imposed making
the total period of default term four months.
In terms of section 26 of the bribery act, where a court
convicts a person for an offence committed under part II of the
Bribery act by accepting a sum of money as a gratifcation,

Wanasinghe V. Hon. Attorney General And Others
SC (Gamini Amaratunga, J.) 9
in addition to any other punishment imposed by court, a
sum of money equal to the gratifcation accepted shall be
imposed as a penalty. the stipulation in section 26 is
mandatory. the learned trial judge has not imposed the
mandatory penalty. I therefore, in addition to the punish-
ments imposed by the learned trial judge, impose a penalty
of rs. 200/- on the appellant and a default term of one month
r. I. in respect of the penalty. thus the total period of the
default term is fve months R.I.
the learned chief magistrate of colombo is hereby
directed to take steps to activate the sentence imposed on the
accused appellant. this court wishes to place on record the
court's appreciation of the prompt action taken by a.s.p. lal
Kumara to deal with an errant police offcer who has brought
the police service into disrepute.
mArsoof, J. – I agree.
ekAnAyAke, J. – I agree.
Appeal dismissed.
Mandatory penalty imposed.

10 Sri Lanka Law Reports [2011] 1 SRI L.R.
CHANDRASIRI V. ATTORNEY GENERAL
supreme court
srIpavan, j.,
ekanayake, j. and
prIyasath dep. j.
s.c. appeal no. 100/2010
s.c. (spl.) la no. 90/2010
h.c. nuWaraelIya no. 30/2009 (appeal)
m.c. nuWaraelIya no. 17340
september 19th 2011
Penal Code – Section 298 – Causing death by negligence – Death
should have been the direct result of a rash or negligent act of the
accused – Burden of Proof – Charge Sheet defective?
the accused – appellant was convicted in the magistrate's court for
riding a motor cycle in a rash and/or negligent manner and causing the
death of a person which is an offence punishable under section 298 of
the penal code. the accused- appellant appealed against the convic-
tion and the sentence passed on him to the provincial high court of
kandy. his appeal was dismissed. he sought leave to appeal from the
supreme court and was granted leave.
the main issue was whether the accused rode the motor cycle in a rash
and/or negligent manner, and caused the death of the person.
Held:
(1) It is for the prosecution to prove the case beyond reasonable doubt
that the accused acted in a rash or negligent manner. It is not
for the accused to prove that he did not act in a rash or negligent
manner.
(2) the weakness of the defence case will not strengthen or bolster the
otherwise weak prosecution case. the evidence must establish the
guilt of the accused, not his innocence. his innocence is presumed
by the law and his guilt must be established beyond reasonable
doubt.

Chandrasiri V. Attorney General
SC (Priyasath Dep P.C, J.) 11
per priyasath dep, j.,-
I fnd that the learned Magistrate and the learned High Court
judge failed to give due consideration to the subsequent conduct
of the accused. The Accused after the accident did not fee from
the scene and assisted in despatching the injured to the hospital
and also returned to the scene to assist the investigating offcer.
the conduct of the accused is exemplary. therefore his version
should not be lightly disregarded… In the above circumstances
it is necessary to consider whether the conduct of the accused
amounts to criminal negligence.
. . . In this case there is an absence of evidence regarding the
manner in which the motor cycle was ridden at the time of the
accident. The evidence given by the accused defnitely raises
reasonable doubt regarding the mental element of negligence.
according to his evidence the deceased crossed the road suddenly.
there is no evidence to controvert this fact."
(3) the conduct of the accused does not amount to criminal negligence.
The charge fled under Section 298 of the Penal Code is defective
as it failed to enumerate the specifc acts of rashness or
negligence.

Cases referred to :-
(1) Karunadasa v. Offcer in Charge, Police Station Nittambuwa – 1987
1 sri l.r. 155
(2) Lourenz v. Vyramuttu – 42 nlr 472
(3) King v. Leighton – 47 nlr 283
(4) Andrews v. Director of Public Prosecutions – 106 l.j.k.b. 370
(5) R. v. Batman – 96 l.j.k.b. 791
AppeAl from the judgment of the high court, kandy.
Dr. Ranjith Fernando for the accused – appellant – petitioner.
Shanaka Wijesinghe, S. S. C., for the attorney-general
Cur.adv.vult
december 16th 2011
priyAsAtH Dep p.C, J.
the accused appellant was convicted in the magistrate’s
court of nuwara eliya for riding a motor cycle in a rash

12 Sri Lanka Law Reports [2011] 1 SRI L.R.
and/or negligent manner and causing the death of abosally
farook an offence punishable under section 298 of the
penal code. he was sentenced to 10 months rigorous
imprisonment and was ordered to pay a fne of Rs. 1500/-.
In view of this conviction the learned magistrate acquitted
the accused on two alternative charges fled under the Motor
Traffc Act.
the accused appellant appealed against the said
conviction and the sentence to the provincial high court
of kandy. his appeal was dismissed. he sought leave to
appeal to the supreme court against the said order of the
high court. the supreme court granted leave and the appeal
was argued before us.
It is appropriate to deal with the facts of the case briefy.
the main witness for the prosecution is one mohamed Illiyas
who was working as a cashier in a shop. the accident had
occurred on the 18th of september 1998 in nuwara eliya town
in a busy street near the urban council premises. the daily
pola was also located close by. the accident occurred between
12.00 – 1.00 pm and at that time people were busy rushing
to a nearby mosque. Witness mohomed Illiyas had seen the
deceased been thrown and falling near his shop. he saw the
accused parking his motor cycle on the side of the road and
approaching towards the injured (deceased) and assisting the
others who were gathered there to dispatch the injured to the
hospital. this witness did not observe any damage caused
to the motor cycle. he says there was a pedestrian crossing
nearby and he is unable to say whether the accident occurred
on the pedestrian crossing or not.
The next witness was the Investigating offcer, Sub
Inspector seneviratne. on receipt of information he came to

Chandrasiri V. Attorney General
SC (Priyasath Dep P.C, J.) 13
the scene and by that time the deceased was dispatched to
the hospital. the accused who came there pointed out the
place of the accident to the Police Offcer. He observed broken
pieces of glass and pieces of signal lights near the place of the
accident. this witness contradicts the earlier witness on this
point. he is unable to say whether the place of impact was on
or near the pedestrian crossing. he went to the extent to state
that due to heavy showers in nuwara eliya the yellow lines
of the pedestrian crossing could have faded. the evidence of
this witness is rather vague and at times contradictory. he
had failed to make proper observation notes of the scene.
the prosecution called two other witnesses i.e. the wife
and cousin of the deceased who identifed the dead body of
the deceased at the post mortem examination.
The Main witness for the prosecution Illiyas identifed
the accused as the person who rode the motor cycle. this
was made possible due to the fact that after the accident the
accused halted the motor cycle and came to assist the
injured to be taken to the hospital. s.I. seneviratne was able to
identify the accused because he came to the scene and
pointed the place of the accident. therefore, the prosecu-
tion was able to establish the identity of the accused beyond
reasonable doubt.
the post mortem examination report was marked and
produced in court. the post mortem report attributes the
death to a head injury sustained by the deceased. It was
established that the act of the accused caused the death of
the deceased.
the main issue that has to be considered is whether the
accused had acted in a rash and/or negligent manner. there

14 Sri Lanka Law Reports [2011] 1 SRI L.R.
is no direct evidence to establish that the accused rode the
motor cycle in a rash or negligent manner. the prosecution
attempts to establish this ingredient by resorting to items of
circumstantial evidence. It was emphasized that this accident
occurred in a busy street in the heart of the town and during
the rush hour. therefore, the accused should have exercised
a high degree of care and also should have been concerned
about the other users of the road. I fnd that these items it-
self are not suffcient to establish criminal negligence. There
is a serious infrmity in the Prosecution case. Although the
accident occurred in a busy street there were no witnesses to
testify as to the manner of riding the motor cycle and also how
this accident occurred. If the Accused fed the scene without
coming to the assistance of the injured and also did not
return to the scene to assist the Investigating Offcer, there
could not have been any evidence to establish the identity of
the accused.
the trial judge and the learned high court judge acted
on the basis that Illiyas is an eye witness and his testimony
was confrmed by S.I. Seneviratne.
the accused gave evidence and denied that he rode the
motor cycle at an excessive speed. he denied that he was
negligent or acted in a rash manner. In his evidence he stated
that the deceased suddenly crossed the road and he could
not avert the accident. the learned high court judge had
remarked that the accused did not call evidence to corroborate
his version and his evidence confrmed the prosecution case.
I am of the view that the trial judge as well as the learned
high court judge misdirected on the question of burden
of proof. It is for the prosecution to prove the case beyond
reasonable doubt that the accused acted in a rash or
negligent manner. It is not for the accused to prove that he
did not act in a rash or negligent manner.

Chandrasiri V. Attorney General
SC (Priyasath Dep P.C, J.) 15
It is settled law that the weakness of the defence case
will not strengthen the prosecution case or bolster the
otherwise weak prosecution case. In Karunadasa vs.
Offcer in Charge, Police Station Nittambuwa(1) it was held that
‘ It is an imperative requirement that the prosecution must
be convincing no matter how weak the defence is before the
court can convict. the weakness of the defence must not
be allowed to bolster up a weak case for the prosecution.
the evidence must establish the guilt of the accused, not his
innocence. his innocence is presumed by the law and his
guilt must be established beyond reasonable doubt’
In this case there is an absence of evidence regarding
the manner in which the motor cycle was ridden at the time
of the accident. The evidence given by the accused defnitely
raises reasonable doubt regarding the mental element of
negligence. according to his evidence the deceased crossed the
road suddenly. there is no evidence to controvert this fact.
I fnd that the learned Magistrate and the learned High
court judge failed to give due consideration to the subsequent
conduct of the accused, the accused after the accident did not
fee from the scene and assisted in despatching the injured
to the hospital and also returned to the scene to assist the
Investigating Offcer. The conduct of the accused is exemplary.
therefore his version should not be lightly disregarded.
In the above circumstances it is necessary to consider
whether the conduct of the accused amounts to criminal
negligence as opposed to civil negligence. It is appropriate to
refer to case law on this point.
sri lankan cases including Lourensz v. Vyramuttu(2) and
The King vs. Leighton(3) consistently followed a long line of

16 Sri Lanka Law Reports [2011] 1 SRI L.R.
english decisions as regard to what constitute criminal
negligence.
the house of lords case of Andrews v. Director of
Public Prosecution(4) is a case very often cited in the sri lankan
judgments. In giving the judgment in that case lord
atkin cited with approval the dictum of the lord chief justice
in R. v. Bateman(5).
“In explaining to juries the test they should apply
to determine whether the negligence, in the particular case,
amounted or did not amount to a crime, judges have used
many epithets, such as ‘culpable’, ‘criminal’, ‘gross’, ‘wicked’,
‘clear’, ‘complete’. but whatever epithet be used and whether
an epithet be used or not, in order to establish criminal
liability the facts must be such that, in the opinion of the
jury, the negligence of the accused went beyond a mere
matter of compensation between subjects and showed such
disregard for the life and safety of others as to amount to a
crime against the state and conduct deserving punishment.”
after citing this dictim, lord atkin continued as follows:-
“the principle to be observed is that cases of manslaughter
in driving motor cars are but instances of a general rule
applicable to all charges of homicide by negligence. simple
lack of care such as will constitute civil liability is not
enough; for purposes of the criminal law there are degrees of
negligence and a very high degree of negligence is required to
be proved before the felony is established. probably of all the
epithets that can be applied ‘reckless’ most nearly covers the
case.”
having considered the facts and circumstances of this
case and relevant english and sri lankan cases, I fnd that

Chandrasiri V. Attorney General
SC (Priyasath Dep P.C, J.) 17
the conduct of the accused does not amount to criminal
negligence.
I also fnd that the charge fled under section 298 of the
Penal Code is defective as it failed to enumerate the specifc
acts of rashness or negligence.
I therefore set aside the conviction and sentence
imposed by the magistrate and the judgment of the
High Court affrming the said conviction and sentence.
sripAvAn J. – I agree
ekAnAyAke J. – I agree
Appeal allowed.

18 Sri Lanka Law Reports [2011] 1 SRI L.R.
DANANJANIE DE ALWIS V. ANURA EDIRISINGHE
(COMMISSIONER GENERAL OF ExAMINATIONS)
AND 7 OTHERS (Z SCORE – CASE 1)
supreme court
dr. shIranI a. bandaranayake, c.j.,
Imam, j. and
suresh chandra, j.
s.c. applIcatIon (fr) no. 578/2009
february 23th 2011
Fundamental rights – Article 12(1) of the Constitution – Right to
equality – Concept of legitimate expectation – Principle of equal-
ity – Principle of rational or reasonable classifcation – Z score –
formula – Mean and standard deviation.
the petitioner was a student of kalutara balika national school who sat
for her g.c.e. (advanced level) for the second time in august 2008 and
the results were released on 03.01.2009. according to the said results,
the petitioner had obtained a ‘Z’ score of 1.8887 with a district rank of
49 from the kalutara district.
the petitioner had received a fresh sheet of results on 07.07.2009 which
was backdated to 03.01.2009. according to the results she received on
07.07.2009, her Z score had been reduced to 1.8860 from the earlier
score of 1.8887. The Z score given in July 2009 was not suffcient for
her to enter into a faculty of medicine.
the petitioner’s grievance is based on the revision of the Z score and
alleged that the respondent had arbitrarily reduced and/or had
amended her Z score without any basis for such reduction and without
giving any explanation for such reduction and thereafter had released
a revised schedule of the advanced level results and thereby had
decided that the petitioner has not been selected to a faculty of medicine.
the petitioner accordingly complained to the supreme court that her
fundamental right to equal protection guaranteed in terms of article
12(1) of the constitution had been violated by the respondents and
relied on the concept of legitimate expectation.

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 19
Held:
(1) considering the doctrine of legitimate expectation in terms of
expectation to be consulted or heard, if a person relies on
legitimate expectation, such a person would have to satisfy
that he had been deprived of a past practice that had been
withdrawn or changed suddenly without any notice or reason for
such withdrawal or change.
In the present application there is no material to indicate that
the past practice has been changed or withdrawn at the time the
petitioner had sat for the advanced level examination or at the
time the results were released. on the contrary the same system
which was used in the previous year had been followed and the
candidates were told that depending on the results of the
re-scrutiny of papers, the Z score could change. therefore it would
not be correct for the petitioner to state that the previous scheme
had been changed without giving her an opportunity to express
her views on the selection of candidates to universities.
(2) considering the basis on which the constitutional provision in
article 12(1) deals with the right to equality and the applicability
of legitimate expectation on that basis, it is apparent that the
expectation in question should have been founded upon a
statement or an undertaking given by the authority in question,
which would make it inconsistent or irrational with the gener-
al administration to deny such an opportunity a petitioner has
been claiming through his petition. otherwise the petitioner must
show that there is the existence of a regular practice on which the
petitioner can reasonably rely upon to continue in his favour.
It is clear that the 1st or the 2nd respondents had not given any
promise or undertaking that the ‘Z score’ would be decided on
the basis of the provisional results released on 03.01.2009. It was
made to understand that the ‘Z’ scores would be fnally deter-
mined and announced only after the re-scrutiny of the results are
fnalized and this had been the practice for several years.
(3) the steps that were taken by the respondents, as alleged by
the petitioner, cannot be categorised as arbitrary and unlawful.
the petitioner has not been successful in establishing that her
fundamental rights guaranteed in terms of article 12(1) of the
constitution had been infringed by the respondents.
(4) The applicable fnal Z score and the District rankings would be
available only after the rescrutiny marks are fnalized.

20 Sri Lanka Law Reports [2011] 1 SRI L.R.
Cases referred to :-
(1) Schmidt v. Secretary of State for Home Affairs – (1969) 1 all e.r.
904.
(2) Breen v. Amalgamated Engineering Union – (1971) 1 all e. r. 1148
(3) Re Westminster City Council – (1986) a. c. 668
(4) Attorney General of Hong Kong v. Ng Tuen Shiu – (1983) 2 all e.r.
346
(5) Council of Civil Service Unions v. Minister for the Civil Service
(The GCHQ Case) – (1984) 3 all e.r. 935
(6) Gauri Shankar v. Union of India – aIr (1995) sc 55
(7) Ashutosh Gupta v. State of Rajasthan – (2002) 4 scc 34
(8) Western Uttar Pradesh Electric Power and Supply Co. Ltd. v. State of
Uttar Pradesh – aIr (1970) sc 21
(9) R. K. Grag v. Union of India – aIr (1981) sc 2138
(10) Re: Special Courts Bill – aIr (1979) sc 478
(11) State of Uttar Pradesh v. Kamla Palace – aIr (2000) sc 633
AppeAl for infringement of fundamental rights
Saliya Pieris with Thanuka Nandasiri for petitioner.
Mahen Gopallawa, S. S. C., for the respondents.
Cur.adv.vult
november 01st 2011
Dr. sHirAni A. BAnDArAnAyAke, CJ
the petitioner was a student of kalutara balika national
School, who sat for her General Certifcate of Examination
(advanced level), (hereinafter referred to as the advanced
level examination) for the second time in august 2008.
she complained that, on the basis of her results at the said
examination, she verily believed that she had attained a
satisfactory Z score to follow the course of studies in medicine.
however, she had applied for her third attempt for the said
examination in 2009 prior to the release of the cut-off marks.
the petitioner alleged that the respondents had arbitrarily

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 21
reduced and/or had amended her Z score without any basis
for such reduction and without giving any explanation for
such reduction and thereafter had released a revised schedule
of the advanced level results and thereby had decided
that the petitioner has not been selected to a faculty of
medicine.
the petitioner accordingly complained that her fun-
damental rights guaranteed in terms of article 12(1) of the
constitution had been violated by the respondents for which
this court had granted leave to proceed.
the facts of this application, as submitted by the
petitioner, albeit brief are as follows.
the petitioner had sat for the advanced level examination
for the frst time in August 2007 and had obtained two very
good passes (b) for biology and physics and a credit pass (c)
for chemistry. having received a Z score of 1.5567, on the
basis of the said results, she had applied for university
admission and had been selected to follow a course in
bio science in the university of sri jayawardeanapura. since
the petitioner’s ambition was to follow a course in medicine
and as the Z score she had obtained was insuffcient for
the said purpose, she had not taken steps to register at the
said university, but decided to sit for the advanced level
examination for the second time.
the results of the advanced level examination of august
2008 were released on 03.01.2009 and the said results were
put on the school’s notice board.
accordingly she had obtained a distinction (a) for biology
and two very good passes (b) for chemistry and physics. she
had also obtained a distinction for general english and 072
marks for the common general test.

22 Sri Lanka Law Reports [2011] 1 SRI L.R.
according to the said results, the petitioner had
obtained a Z score of 1.8887 with a district rank of 49 from
the kalutara district.
the petitioner stated that applications were called for
admission to the universities and accordingly she had
sent her application for which she had received an
acknowledgement.
the petitioner submitted that although the results
were released on 03.01.2009, the 2nd respondent had failed
to release the cut off marks for university admissions
until 03.07.2009. she further submitted that during previous
years, the said marks were released within two to three
months from the date of the release of the results, which had
helped the students to decide whether they should re-sit the
said examination.
however, the petitioner did not pay much heed to the
said delay as she had, in her view, obtained a Z score which
was over and above the general requirement to enter a
faculty of medicine, when compared with the Z scores of
previous years.
the petitioner had received a fresh sheet of results on
07.07.2009, which was backdated to 03.01.2009. according
to the said document her Z score had been reduced to 1.8860
from the earlier Z score of 1.8887. on a comparison of the
two sets of Z scores, the petitioner had realized that the
Z score given in July 2009 was not suffcient for her to enter
into a faculty of medicine.
later on 10.07.2009, the petitioner had received a letter
from the university grants commission that she has been
selected to follow the course of study in dental surgery in
the university of peradeniya and had informed her to meet

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 23
the registrar of the university of colombo for the purpose of
registration. the petitioner stated that she had registered
with the faculty of dental surgery at the said university
although she verily believed that the reduction of her Z score
was incorrect, arbitrary and discriminatory and had no legal
basis.
the petitioner had appealed to the commissioner
general of examinations to rectify the error with regard to
her Z score and to allow her to follow a course of study in a
faculty of medicine. she submitted that she had decided to
register with the faculty of dental surgery as she would be
deprived of her chances to undergo higher studies.
the petitioner accordingly has complained that her
fundamental rights to equal protection had been violated by
the respondents and this allegation is based on the grounds
that,
1. the respondents had arbitrarily reduced or amended the
petitioner’s Z score without any basis and without giving
any reasons for such reduction;
2. the release of a revised schedule of the results of the
advanced level examination after the cut off mark for
the university admissions were released; and
3. by causing a delay in the release of the results of the
advanced level examination and the cut off mark for the
university admissions.
the 1st respondent, being the commissioner of
examinations, had averred that although the results of the
advanced level examination held in august 2008, were
initially released on 03.01.2009 by the department of
examinations, that they were subject to change and were

24 Sri Lanka Law Reports [2011] 1 SRI L.R.
considered as provisional until confrmed by the offcial
results issued by the department of examinations. the 1st
respondent had further averred that all the principals of
schools were informed of this situation by his letter dated
01.01.2009 (1r1). the reason for such change was based on
the fact that time had to be granted for candidates who sat
for the advanced level examination to apply for re-scrutiny
and the notice for such re-scrutiny was published on
09.01.2009.
the process of re-scrutiny had taken over 5 months and
the fnal results including the revised Z scores had been
issued to the university grants commission on 24.06.2009
and to the candidates on 29.06.2009. accordingly, the
petitioner had received a Z score of 1.8860, which was below
the cut off point of 1.8864 that was necessary to be admitted
to follow a course of study in medicine.
the petitioner’s grievance is based on the revision of
her Z score. admittedly along with her results released on
03.01.2009 it was stated that her Z score was 1.8887, which
was over and above the cut-off point of 1.8864 from the
kalutara district to enter a faculty of medicine. this posi-
tion clearly indicates that two sets of Z scores were issued
to the petitioner on which the petitioner had stated that she
had a legitimate expectation that she could enter a faculty of
medicine without sitting for the advanced level examination
for a further time. the respondents had taken the position
that the frst sets of results were only provisional and not fnal
and therefore there cannot be any legitimate expectation
based on the original sets of results. a question therefore
arises as to at which point the Z score could be fnalized.
It is not disputed that since 2001 in sri lanka, the
university admissions were based on the Z scores

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 25
obtained by the individual candidates at the advanced level
examination. this method was introduced by the university
grants commission in order to avoid any unfairness in the
process of selection. the said method, which was commonly
known as the Z score, was a process of standardization, which
was carried out using the statistics that were based on the
marks obtained by the students. the Z score was calculated
using the following formula.
X – X
Z =
S
the said formula of the Z score could be described as
follows:
Z – score = Raw marks obtained by a student – Mean mark for the subject
Standard deviation of marks for the subject
this clearly indicates that the mean mark for the relevant
subject is necessary to arrive at the Z score. such mean
marks would have to be obtained, not at the time the original
results are released, but only after the re-scrutiny results are
fnalized. Therefore although the provisional results may be
released on an earlier date, such a release would not assist
the students to decide as to which course of study that they
would be able to follow. the reason for this process is that by
its nature, the Z score would depend not only on the marks a
particular student had obtained, but on the marks the others
students had scored at that examination in a given subject.
accordingly it is not correct for the petitioner to state that
although the results were released on 03.01.2009, the cut-off
marks were not released until 03.07.2009. due to the very
nature of the calculation of the Z score, it would not have

26 Sri Lanka Law Reports [2011] 1 SRI L.R.
been possible to release the cut-off marks until the re-scrutiny
results were fnalized by the Department of Examination.
the petitioner’s complaint as clearly stated earlier was
that in terms of the results issued prior to the re-scrutiny
results were released, she had a Z score which was over and
above the cut-off point that was necessary to enter a faculty
of medicine. due to the said position, the petitioner had stated
that she had a legitimate expectation that she could enter the
medical stream.
as stated earlier the introduction of the method of selecting
students to universities and their different faculties on
the basis of the Z score was to eliminate diffculties and
distortions caused to candidates by varying standards of
marking adopted in different subjects. however, since its
inception in 2001, it was known that the Z score of a subject
could always vary due to the re-scrutiny marks. this would
occur even in situations where the candidate in question
had not applied for re-scrutiny. the formula for the Z score,
as shown earlier, is based on the mean and the standard
deviation in respect of subjects and whenever there is any
change in the marks occur that would affect the Z score.
referring to the said changes, the 1st respondent had
averred that due to the changes in marks of the other
candidates who had applied for re-scrutiny and due to the
changes in their marks, there had been a downward revision
of the petitioner’s Z score from the original Z score of 1.8887
to 1.8860. consequently, the petitioner’s district ranking also
got revised from 49 to 52. In support of his averment, the
1st respondent had tendered a document which contains the
details of the manner in which the changes during re-scrutiny
had affected the Z score of the petitioner (1r7).

Dananjanie De Alwis V. Anura Edirisinghe (Commissioner General
SC Of Examinations) And 7 Others (Dr. Shirani A. Bandaranayake, CJ) 27
on an examination of the documents which were placed
by the petitioner as well as the respondents, it is quite clear
that the applicable fnal Z score and the District Ranking of a
candidate would be available only after the re-scrutiny marks
are fnalized.
It is not disputed that the fnal results of the re-scruti-
ny were released on 29.06.2009 and the cut-off points for
the admission to universities and to their different faculties
were issued only on 02.07.2009 by the university grants
commission. the petitioner had stated that she had received
the fnal results on 07.07.2009. By 07.07.2009, the petitioner
was well aware that the Z score she had obtained was not
suffcient to enter into a Faculty of Medicine.
In such circumstances, could the petitioner rely on the
concept of legitimate expectation?
legitimate expectation is a concept which has been
developed through the years since its introduction by lord
denning in Schmidt v. Secretary of State for Home Affairs(1)
mostly on the basis of procedural fairness and the removal
of arbitrary decision. In schmidt (supra), the court,
referring to a decision of the government to reduce
the period already allowed to an alien to enter and
stay in england, had held that the said person had a
legitimate expectation to stay in that country, which cannot
be violated without following a reasonable procedure. the
decision in schmidt (supra) was followed soon after in
Breen v. Amalgamated Engineering Union(2).
legitimate expectation has been described as a concept
which derives from an undertaking given by someone in
authority. there is no compulsion for such an undertaking to
be in written formula, but would be suffcient if that could be

28 Sri Lanka Law Reports [2011] 1 SRI L.R.
known through the surrounding circumstances. discussing
this concept, david foulkes (administrative law, 7th edition,
butterworths, 1990, pg. 272) had expressed the view that
a promise or an undertaking could give rise to a legitimate
expectation. discussing his position with regard to the
concept foulkes had stated that,
“the right to a hearing, or to be consulted, or generally
to put one’s case, may also arise out of the action of the
authority itself. this action may take one of two, or both
forms; a promise (or a statement or undertaking) or a reg-
ular procedure. Both the promise and the procedure
are capable of giving rise to what is called a legiti-
mate expectation, that is, an expectation of the kind
which the Courts will enforce” (emphasis added).
prof. galligan (due process and fair procedures, a study
of administrative procedures, clarendon press, oxford, 1996,
pg. 320) had described the concept of legitimate expectation
to something equal to the idea of an interest raised due to
an undertaking that had been given. explaining his theory,
prof. galligan had stated thus:
“In one sense legitimate expectation is an extension
of the idea of an interest. the duty of procedural
fairness is owed, it has been said, when a person’s rights,
interests or legitimate expectations are in issue.one might
have no right or interest at stake, but because of some-
thing said or done by the authority, an expectation
mayberaised,whichshouldnotbedisappointedwithout
following certain procedures. an example is an alien
seeking an extension of a visa to stay in the united
kingdom. under english law he has no right or legitimate
interest in being allowed to stay; but he might acquire
a legitimate expectation from an undertaking or holding
out that he will be allowed to stay” (emphasis added).