039-SLLR-SLLR-2006-V-3-WANASINGHE-AND-OTHERS-CITIZENS-MOVEMENT-FOR-GOOD-GOVERNANCE-vs.-UNIVERSI.pdf
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WANASINGHE AND OTHERS(CITIZENS MOVEMENT FOR GOOD GOVERNANCE)VS.UNIVERSITY OF COLOMBO AND OTHERSCOURT OF APPEALSRISKANDARAJAH.J.
CA 1261/2004.
MAY 22,2006.
Writ of Certiorari – Universities Act, No. 7 of 1985, Act No. 1 of 1995, Act No. 7 of1985-section 86 – Persons directly affected seeking remedy provided – Personnot directly affected seeking a prerogative writ – Locus standi – Public InterestLitigation – Sufficient Interest-Position in Sri Lanka and India.
Petitioners sought a Writ of Certiorari to quash the decision to appoint 8-9-10 respondents to the post of Lecturer (Probationary) Law and a Writ ofMandamus to direct the University to readvertise the post.
CA Wanasinghe and others (Citizens Movement for Good Governance) Vs. 323
University of Colombo and others
It was contended that the appointments are in violation of the scheme ofrecruitment embodied in the governing circular.
The Petitioners filed the application on the basis that they are citizens of SriLanka and are the President and the Secretary of Citizens Movement for GoodGovernance (CIMOGC) consisting of group of persons who have held highpositions in public life – and is filed in the public interest.
The respondents contended that, the petitioners have no locus standi tomaintain this application.
HELD:
In India anyone could seek judicial review on illegal governmentaland administrative action. No link with the dispute or grievanceneed to be established. So long as the applicant comes beforeCourt in good faith, standing will be allowed. The focus being theissue or injustice canvassed and not on the interest of theapplicant.;
In Sri Lanka the locus standi requirement is based on “sufficientinterest” in the matter in dispute.
The Sri Lankan Courts have not relaxed the standing as in Indiabut our Courts have given standing to individuals and movementswho have a special link or experience in relation to the subjectmatter of the dispute.
HELD FURTHER:
When the impugned order is challenged by persons directlyaffected in the appropriate forum provided by law and when thematter is under consideration by the said Authority – in this casethe University Services Appeals Board – another person or bodyof persons who are not directly affected cannot claim locus standito challenge the said order on the basis cf public interest.
2- CM 08437
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Per Sriskandarajah. J.:
“If the person who has been directly effected by an illegal order of a publicauthority has challenged the said order in the appropriate forum then there isno need for the Court to permit persons and organizations to challenge thesame order by public interest litigation
APPLICATION for a Writ of Certiorari/Mandamus.
Cases referred to
Fertilizer Corporation Kanagor Union vs. Union of India 1981 AIR SC344
Environment Foundation Ltd. vs. Wickramasinghe 1997 2 Sri LR 306
Consumers Association of Lanka Vs. TelecommunicationsCommission of Sri Lanka and Others 2006 1 Sri LR 175
In Re National Olympic Committee C A131212004 BASL News August2004
In Re Green Movement of Sri Lanka CA 2047/2004 CAM 06.06.2006
S. R Gupta vs.Union of India 1981 Supp SCC 87 at 210.
Elmore Perera for petitioner.
Sathya Hettige ASG with Uresha de Silva SC for 1st, 2nd, 6th and 7threspondents.
Dr. Almeida Gunarathne PC for 3rd and 4th respondents
Gamini Hettiarachchi for 9th respondent.
Shantha Jayawardena for 8th and 10th respondents.
Cur. adv. vult.
CA Wanasinghe and others (Citizens Movement for Good Governance) Vs. 325
University of Colombo land others (Sriskandarajah J,)
July 6, 2006
SRISKANDARAJAH. J.The Petitioners in this application have sought a writ of Certiorari toquash the decision to appoint the 8th, 9th and 10th Respondents tothe post of Lecturer (Probationary) in law and a writ of Prohibitionpreventing the said appointment. The Petitioners have also sought awrit of mandamus to direct the 2nd Respondent the Vice Chancellor tore-advertise the post of Lecturer (Probationary) in Law.
The Petitioners submitted that the appointment to the post of Lecturer(Probationary) is governed by the University Grants Commission (UGC)Circular No. 721 dated 21.11.1997 (P3) and as described therein, thiscircular permits those with a Second Class (Lower Division) degree tobe considered for appointment only if applicants with First Class orSecond Class (Upper Division) degrees are either not available or havebeen evaluated and considered as unsatisfactory. This criterion forappointment for the post of Lecturer (Probationary) was communicatedby a memo dated 02.09.2003 (P4) issued by the Registrar of the 1stRespondent University to all prospective applicants. The Petitionerscontend that when the post of Lecturer (Probationary) in Law wasadvertised on 04.09.2003. there were 25 applicants. Apart from the8th, 9th, and 10th Respondents who submitted their application, therewere a least 4 Second Class (Upper Division) degree holding applicantsand according to the said Circular these 4 candidates had necessarilyto be evaluated and considered unsatisfactory before any of the otherscould even be considered.
The Petitioners further contend that out of the 25 candidates 8candidates were invited for the interview and the Selection Committeewhich met on 20.11.2003 considered the said 8 candidates and in thisprocess four candidates with Second Class (Lower Division) degreewere considered prior to the finding of the candidates who had obtainedSecond Class (Upper Division) were found as unsatisfactory. Therefore
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the Petitioners submitted that the selection, and the decision to appointthe 8th, 9th and 10th Respondents in this process are a clear violationof the Scheme of Recruitment embodied in the said Circular, No. 721(P3).
The 1st, 2nd, 6th and 7th Respondents submitted that the selectionCommittee interviewed 8 applicants on 20.11.2003. They were evaluatedbased on their academic qualifications, publication, knowledge andexperience, extra curricular activities, personality, communication skillsand presentation. The Selection Committee after evaluationrecommended four applicants namely: T. L. Seneviratne, J. Niriell, P.H. N. Sampath and M. A. M. Hakeem. Out of the four, P H. N. Sampathhad obtained a Second Class (Upper Division) Honours Degree andthe other three persons who were selected had obtained Second Class(Lower Division) Honours Degree. These Respondents submitted thatthough the other applicants had obtained Second Class (UpperDivision), they were considered and found as unsatisfactory and further,their performance at the Selection Committee interview was very poor.
In the background of the above facts I consider the preliminaryobjections raised by the Respondents in this application.
The Respondents’ 1st preliminary objection is that the Petitionershave no locus standi to have and maintain this application.
The Petitioners filed this application on the basis that they arecitizens of Sri Lanka and are respectively the President and theSecretary of CIMOGG, the Citizens Movement for Good Governance,consisting of group of a persons who have held high positions in publiclife. The Constitution of CIMOGG is marked as P1 and Article 3 of thesaid Constitution contains the objects of CIMOGG. The objects inter -alia includes, to act as a pressure group on those holding public officeon the need for good governance, recognizing, inter – alia, theimperatives of transparency and accountability in all public dealings(Article 3.3) and to engage in public interest litigation (Article 3.10).
CA Wanasinghe and others (Citizens Movement for Good GovernanceJ Vs. 327
University of Colombo and others (Sriskandarajah J,)
This is an application filed by the Petitioners in public interest. Unlikein India the locus standi requirement in Sri Lanka is based on “sufficientinterest” in the matter in dispute.
In India anyone could seek judicial review on illegal governmentaland administrative action. No link with the dispute or grievance needto be established. So long as the applicant comes before the court ingood faith, standing will be allowed. The focus here is on the issue orinjustice canvassed, not on the interest of the applicant.
In Fertilizer Corporation Kamgar Union V Union of India<1) JusticeKrishna lyar observed;
“Restrictive rules of standing are an antithesis to a healthysystem of administrative law. If a plantiff with a good cause isturned away, merely because he is not sufficiently affectedpersonally, that means that some government agency is leftfree to violate the law, and that contrary to public interest.Litigants are unlikely to spend their time ond money unlessthey have some real interest at stake. In the rare cases wherethey wish to sue merely out of public spirit, why should theybe discouraged? Effective access to justice is the most basichuman requirement- Most basic human rights – of a systemwhich purports to guarantee legal rights".
Even though the Sri Lankan Courts have not relaxed the standingas in India but our Courts have given standing to individuals andmovements who have a special link or experience in relation to thesubject matter of the dispute. The standing of the EnviromentalFoundation Ltd. in matters relating to the enviroment was accepted inEnvironmental Foundation Ltd. v. Wickremanayake because of theirspecial expertise in the area of environmental protection.
A, association or group seeking to represent some or all of itsmembers were also said to have standing in relation to the matters
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affecting the interest of their members; Consumer Association ofLanka v Telecommunications Regulatory Commission of Sri Lankaand Others!3>
A person who has a long'standing association and interest in aparticular field such as sports was given standing to challenge anappointment of the Chef De Mission for Olympic Games. The NationalOlympic Committee Case .
A movement called Green Movement of Sri Lanka t5> was givenstanding where the Green Movement of Sri Lanka having the objectsof preserving the environment and natural resources of Sri Lanka,instituted proceedings on the complaint of the villagers who are directlyaffected but do not have sufficient resources to present their grievancebefore a court of law.
The Courts entertained public interest litigation in order to prevent agovernment agency from violating the law as it is contrary to publicinterest, when the person affected or a class of persons affected areunable to approach the Court for any relief by reason of poverty,helplessness or disability or being placed in socially or economicallydisadvantaged position.
The Supreme Court of India in S. P. Gupta v. Union of India <6) at210 observed:
“Where a legal wrong or a legal injury is caused to a person or to adeterminate class of persons by reason of violation of any constitutionalor legal right or any burden is imposed in contravention of anyconstitutional or legal provision or without authority of law or any suchlegal wrong or legal injury or legal burden is threatened and such personor determinate class of persons is by reason of poverty, helplessnessor disability or socially economonically disadvantaged position unableto approach the court for any relief, any member of the public canmaintain an application for an appropriate direction, order or writ in the
CA Wanasinghe and others (Citizens Movement for Good Governance) Vs. 329
University of Colombo and others (Sriskandarajah J,)
High Court… seeking judicial redress for the legal wrong or injury causedto such person or determinate class of persons".
In the instant application the decision to appoint the 8th, 9th, and10th Respondents to the post of Lecturer (Probationary) are challengedas this decision was made in violation of the Scheme of Recruitment.In arriving at this decision the selection Committee had interviewedeight applicants. The applicants who faced the said interview and notappointed to the said post are directly affected by the aforesaiddecision. Two unsuccessful applicants among them have appealedagainst the said order to the University Services Appeals Board.
The Universities Act as amended by Act. No.07 of 1985 and Act,No. 1 of 1995 in Section 86 provides the powers and functions of theUniversity Services Appeals Board. It provides as follows:
86. The Appeals Board shall have and may excercise thefollowing powers, duties and functions. –
(a) to conduct investigations into appointments and promotionsalleged to have been made to the staff of the Commission and to HigherEducational Institutions in contravention of the schemes of recruitmentand the procedures for appointment in force at the time suchappointments or promotions were made or alleged to have been madeand into allegations that appointments or promotions have not beenmade to posts when vacancies have arisen in such posts.
Under the above provisions the two unsuccessful applicants havemade appeals and the University Services Appeals Board is inquiringin to this appeal. The two unsuccessful applicants have chosen theprocedure provided by law to challenge the said decision. The 11th
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Respondent has submitted that it has not granted the approval soughtby the 1 st Respondent to make the appointments to the post of Lecturer(Probationary) Law and decided to await the decision of the UniversityServices Appeals Board.
When the impugned order is under challenge by persons directlyaffected by the said order in the appropriate forum provided by Lawand when the matter is under consideration by the said authority,another person or body of persons who are not directly affected cannotclaim focus standi to challenge the said order on the basis of publicinterest. As I have discussed above the Courts have encouraged publicinterest litigation to keep the public authorities within the law. If theperson who has been directly affected by an illegal order of a publicauthority has challenged the said order in the appropriate forum, thenthere is no need for the Court to permit persons and organisations tochallenge the same order by a public interest litigation.
The persons affected by the legal wrong complained of in thisapplication are law graduates and they have filed an appeal complainingagainst the said legal wrong to the University Services Appeals Boardand it is under consideration. In these circumstances the Petitionerswho belong to an Organisation called Citizens Movement for GoodGovernance have no standing to complain the same legal wrong tothis court on the basis of public interest litigation.
For the above reasons the Court upholds the preliminary objectionof the Respondents that the Petitioners have no locus standi to haveand maintain this application. Therefore the Court dismisses thisapplication without costs.
Preliminary objection upheld.Application dismissed.