019-SLLR-SLLR-2000-V-1-SUMANASIRI-v.-UNIVERSITY-OF-PERADENIYA-AND-OTHERS.pdf
SUMANASIRI
v.
UNIVERSITY OF PERADENIYA AND OTHERS
SUPREME COURTFERNANDO, J.
WADUGODAPITIYA, J. ANDISMAIL, J.
SC APPLICATION NO. 739/98
13th JANUARY AND 3rd FEBRUARY. 2000
Fundamental rights -Appoinment ofRegistrar of a University – Successjiilcandidate guilty of making afalse statement – Infringement ofArticle 12(1)of the Constitution.
The petitioner and the 23rd respondent were among the applicants for thepost of Registrar of the University of Peradeniya. A Selection Committeeinterviewed the candidates. Thereafter the Council of the Universitydecided to appoint the 23rd respondent (who was then the Bursar) asRegistrar. At the hearing of the application, it was established that in hisapplication for the post of Bursar, 23rd respondent had, in stating hisqualifications, claimed to possess a Postgraduate Diploma in Statisticsthe truth of which he was unable to establish by any evidence even afterthe court gave an opportunity to do so. In his application for the post ofBursar, the 23rd respondent had made a declaration that if particularssubmitted by him were found to be false, he would be liable to bedisqualified for selection or to be dismissed, if falsity is detected afterappointment. At the time the Council decided to appoint the petitioneras the Registrar of the University, the allegation that he had previouslymade a false statment was pending inquiry by the University GrantsCommission.
Held :
The decision of the Council to appoint the 23rd respondent as theRegistrar of the University pending an inquiry into the allegation that hehad made a false statement was arbitrary and unreasonable andcontrary to established practice, and was thus in violation of thepetitioner’s fundamental right under Article 12( 1).
APPLICATION for relief for infringement of fundamental rights.
Faisz Musthapha, P.C. with Sanjeewa Jayawardana and FaiszaMusthapha Marker for the petitioner.
D.S. Wyesinghe, P.C. with J.C. Weliamuna for the 23rd respondent.
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Saleem Marsoof, P.C. A S.G. with Viran Corea. S.C. for Is’. 10th to 14Ul,] 7,h. 20lh and 25th respondents.
Cur. adu. vult.
10th February, 2000FERNANDO. J.
The post of Registrar of the University of Peradeniya wasadvertised in June 1998, and the candidates were interviewedby a Selection Committee in July 1998. The Petitioner and the23rd Respondent were among the four applicants. Thereafterthe Council of the University decided at a meeting held on14. 11. 98 to appoint the 23rd Respondent (who was then theBursar) as Registrar. That decision was subject to confirma-tion at the next meeting of the Council which was scheduledfor 28. 11.98. The Petitioner filed this application on 23. 1 1.98, alleging that his fundamental right under Article 12( 1) hadbeen infringed by that decision.
On the first date of hearing, Mr. Musthapha, PC, for thePetitioner submitted that the appointment was flawed forthree distinct reasons: first, that the 23rd Respondent was noteligible for appointment in terms of the scheme of recruitment:second, that no criteria (or even guidelines) had been laiddown, and that the Selection Committee had laid down criteriaon an ad hoc basis, which were not objective: and, third, thatupon a proper comparison the 23rd Respondent could notreasonably have been preferred to the Petitioner.
It is unnecessary to consider those contentions, in view ofanother matter which was raised by Mr. Musthapha in thecourse of his submissions. The 23rd Respondent had submit-ted an application for appointment as Bursar on 18. 10. 83, inwhich he had listed as one of his qualifications, a Diploma inStatistics. He had made the following declaration therein:
"1 hereby certify that the particulars submitted by me inthis application are tme and accurate. I am aware that ifany of these particulars are found to be false or inaccurate,I am liable to be disqualified before selection and to be
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Sumanasiri v. University of Peradeniya and Others
(Fernando, J.)
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dismissed without any compensation if the inaccuracy is
detected after the appointment.”
The relevant Council minute of 29. 01.84 stated that theSelection Committee had recommended “the appointment ofMr. M. K. S. Kumarage, B. Com. (Hons.) (Ceylon), Postgradu-ate Diplomla in Statistics …"
The Auditor – General had observed, in his letter dated12. 11. 98 to the Vice-Chancellor, that although the 23rdRespondent had claimed to have obtained a Diploma inStatistics, that was not supported by any document in hispersonal file submitted for audit. That letter had been copiedto the Secretary, Ministry of Education and Higher Education,and to the University Grants Commission. On 17. 11. 98, theMinister of Education and Higher Education (in the exercise ofhis powers under section 20(2)(a) of tire Universities Act)directed the University Grants Commission to investigate thatmatter (as well as another) and to report to him on or before
12. 98. That directive was copied to the Vice-Chancellor.
Although the University, the Vice-Chancellor and all themembers of the Council have been made Respondents to thisapplication, neither they nor the 23rd Respondent denied thefacts that the 23rd Respondent had claimed to have a Diplomain Statistics; that he did not have such a diploma; that theAuditor – General had brought this to the notice of the Vice-Chancellor; that the Minister had ordered a prompt inquiryand report; and that there had been no such inquiry andreport. Indeed, in the affidavit he filed in this case the 23rdRespondent listed his educational and other qualifications,but a Diploma in Statistics was not amongst them.
However, the question whether the 23rd Respondent hadfalsely claimed that qualification was a matter which he couldeasily and conclusively disprove, by simply producing hisDiploma certificate. We accordingly adjourned the hearing togive him that opportunity. He then filed two affidavits andseveral documents, but did not produce his Diploma certifi-cate, nor even any documents relating to any such Diploma;
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indeed, he did not even aver in his affidavits that he hadobtained a Diploma in Statistics.
I therefore hold that at the relevant time – both when theCouncil decided to appoint the 23rd Respondent, and whenthat decision came up for confirmation – there was an allega-tion against him of misrepresentation involving moral turpi-tude and/or serious misconduct, constituting a potentialdisqualification for any future appointment or promotion.That allegation certainly could not have appeared to theCouncil to be frivolous or insubstantial. The Council could nothave ignored the fact that the Registrar has to deal withmisrepresentations (as to qualifications and otherwise) bystaff and students, and that his ability to act properly andeffectively in such cases would be impaired so long as a cloudhangs over him. The only proper course open to the Councilwas to have deferred its decision until the matter had beenresolved after due inquiiy – especially considering that afinding adverse to the 23rd Respondent could even haveresulted in his dismissal. The decision of the Council toappoint the 23rd Respondent as Registrar was arbitrary, un-reasonable and contrary to established practice, and was thusin violation of the Petitioner’s fundamental right under Article12(1). It must therefore be quashed.
Mr. Musthapha submitted that we should direct that thePetitioner be appointed. But the Selection Committee rankedthe Petitioner third, after the 23rd and 24th Respondents; andit was also Mr. Musthapha’s contention that the evaluationprocedure was flawed. The selection process must thereforecommence afresh. The post must be re-advertised, enablingany other qualified candidates to apply. However, the decisionof the Council was in violation of the Petitioner’s fundamentalright, and for that he is entitled to compensation and costs,which we fix at Rs 50,000, payable by the 1st Respondent onor before 29. 2. 2000.
WADUGODAPITIYA, J.I agree.
ISMAIL, J.- I agree.
Relief granted.