025-SLLR-SLLR-1998-V-2-GALAPATHTHI-v.-KUDALIGAMA-CHAIRMAN-EDUCATION-SERVICE-COMMITTE-OF-THE-PUB.pdf
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Sri Lanka Law Reports
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GALAPATHTHI
v.KUDALIGAMA, CHAIRMAN, EDUCATION SERVICECOMMITTEE OF THE PUBLIC SERVICE COMMISSIONAND OTHERS
SUPREME COURT
P. S. DE SILVA, CJ.,
ANANDACOOMARASWAMV, J. ANDGUNASEKERA, J.
S.C. APPLICATION NO. 829/963RD FEBRUARY, 1998
Fundamental Rights – Termination of a teacher's appointment – Article 12 (1)Of the Constitution.
The petitioner who applied for a post of Assistant Teacher in response to a GazetteNotification (P1) was appointed a Dancing teacher with effect from 1.1.1990. Shewas confirmed in that post with effect from 1.11.1994. On 13.9.96 the EducationAuthorities terminated her appointment with immediate effect on the ground thatshe did not possess a pass in Arithmetic at the National Certificate of GeneralEducation examination, which was a requirement “according to the policy of theEducation Department”.
SCGalapaththi v. Kudaligama, Chairman, Education Service
Committee of the Public Service Commission and Others (Gunasekera, J.) 219
Held:
Having regard to the Gazette Notification P1 and the circulars relied upon by the2nd respondent, Secretary to the Education Service Committee to justify thetermination of the petitioner's services, the said termination was untenable, arbitraryand violative of Article 12 (1) of the Constitution.
APPLICATION for relief for infringement of fundamental rights.
Mohan Peiris with Ms. Nuwanthi Dias and Miss L. Jayasinghe for petitioner.
N. Pulle, S.C for respondents.
Cur. adv. vult.
3rd February, 1998GUNASEKERA, J.
The petitioner having completed her secondary education at theHambantota Balika Vidyalaya, Tangalla, had passed the NationalCertificate of General Education (N.C.G.E) in 1976 and secured passesin seven subjects at one and the same sitting. The details of herexamination results are as follows:
SubjectsGrades
SinhalaB
EnglishC
Health ScienceC
BuddhismC
Aesthetic Studies (Dancing) B
Home ScienceB
Technical StudiesC
In addition she had passed the G.C.E. (Advanced Level)examination in 1980 securing a pass in Economics and a Credit passin Sinhala.
Consequent upon a Gazette Notification published on 13.7.1989(marked 'PT). calling for applications for the appointment of Sinhalamedium and Tamil medium Assistant Teachers on a district basispublished by the Secretary of the Education Service Committee ofthe Public Service Commission (the 2nd respondent) the petitioner
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had applied for the post of an Assistant Teacher and had beenappointed by letter dated 23.10.1990 (marked 'P2') as a DancingTeacher to the Hambantota Seenimodara Junior School, Nakulugamuwa,with effect from 01.11.1990. Thereafter by letter dated 25.11.1994(marked 'P3') the petitioner had been confirmed in her post with effectfrom 01.11.1994 subject to a probationary period of three years bythe 6th respondent. Whilst the petitioner was serving as a confirmedDancing Teacher in the aforesaid Seenimodara Junior School shealleges that the 5th respondent had purported to terminate herservices by letter dated 13.9.1996 (marked 'P4') with immediate effectconsequent upon a decision taken by the 1st to 4th respondents onthe basis that she had not possessed the basic qualifications forappointment. An appeal made by the petitioner to the 2nd respondentby P5 dated 3.10.1996 had been turned down by the 2nd respondentby his letter dated 01.11.1996 (marked ‘P6') on the ground that thepetitioner had failed in Arithmetic at the G.C.E. (O/L) examination,which was a requirement according to the accepted policy of theEducation Department.
Learned counsel for the petitioner at the hearing of this applicationcontended that nowhere was it specified in the Gazette P1 callingfor applications for appointment of Assistant Teachers on a districtbasis that a pass in Arithmetic was a required qualification forappointment. He drew our attention to column 3 of the said Gazettenotification dealing with educational qualifications. According to 3.1 anapplicant should have passed in any three subjects at the G.C.E(A/L) examination. This requirement was dispensed with in caseswhere the applicant had specialised qualifications in specified subjectssuch as Religion, Physical Education and Sports, Language (Sinhala,Tamil or English) and Aesthetic Studies, Science, Mathematics orTechnical subjects. It was his contention that the petitioner had secureda B grade pass in Aesthetic Studies (Dancing) at the N.C.G.Eexamination and it was on the basis that such qualification compliedwith the requirements specified in the Gazette notification that sheapplied and was selected for appointment.
It was further submitted by learned counsel that although the 2ndrespondent in the affidavit filed seeks to justify the termination of thepetitioner's services on the basis that the petitioner did not possessa pass in Mathematics at the N.C.G.E. examination which was arequirement in terms of the policy of the Ministry of Education in the
SCGalapaththi v. Kudaligama, Chairman, Education Service
Committee of the Public Service Commission and Others (Gunasekera, J.) 221
scheme of recruitment for uncertificated teachers that the so calledpolicy of the Ministry of Education is not reflected anywhere in P1the Gazette notification by which applications were called for appoint-ment of Assistant Teachers. In any event it was contended by learnedcounsel that the scheme of recruitment for uncertificated Sinhala andTamil Assistant Teachers relied upon by 2nd respondent to justify thetermination of the petitioner's services was not applicable as thepetitioner had applied under the scheme provided for by Gazettenotification P1.
Having examined the Gazette notification P1 and the circulars reliedupon by the 2nd respondent to justify the termination of the petitioner'sservices we are of the view that the grounds relied upon by therespondents for the said termination are untenable.
For the reasons stated we hold that the termination of thepetitioner's services by P4 was arbitrary and was violative of Article12 (1) of the Constitution. Accordingly we quash the letter of termi-nation dated 13.9.1996 (marked 'P4'). The application of the petitioneris allowed and we direct the State to pay a sum of Rs. 15,000/- ascosts of this application to the petitioner.
Learned counsel for the petitioner submitted that the petitionercontinued to be in service notwithstanding the confirmation of thetermination of her services by P6 consequent upon a Stay Orderissued by this Court in this application. In the circumstances, we notethat there had been no break in service of the petitioner. As suchwe direct the 1 st to 6th respondents to permit the petitioner to continuein service without interruption.
G.P.S. DE SILVA CJ. – I agree.
ANANDACOOMARASWAMY, J. – I agree.
Relief granted.