JAYADEVA vs. PRINCIPAL ,VISAKA VIDYALAYA AND OTHERS

037-SLLR-SLLR-2006-V-3-JAYADEVA-vs.-PRINCIPAL-VISAKA-VIDYALAYA-AND-OTHERS.pdf


CA
Jayadeva Vs. Principal, Visaka Vidyalaya and others
(Sriskandarajah, J. )
309
JAYADEVAVSPRINCIPAL, VISAKA VIDYALAYA AND OTHERSCOURT OF APPEALSRISKANDARAJAH.J.
CA 2421/2004JUNE 5, 2006.
Writ of Certiorari – Admission of a child to a National School- “Non Chiefoccupant category’ – Non tendering of the final list/waiting list, – Nontendering of the relevant Circular? – Necessary parties not named?-Maintainability of the application – Court of Appeal (Appellate Procedure)Rules 1990, 3(1).
The petitioner (Non Chief Occupant Category) – complained that hischild was not admitted to Visaka Vidyalaya and sought to quash thedecisions of the Board of Visaka Vidyalaya and the School AdmissionCommittee, and further sought a Mandamus directing them to include thename of the Petitioner's child in the waiting list.
The respondents contended that (1) as the waiting list/final list has notbeen annexed to the petition (2) that as all necessary parties are notbefore Court and (3) that as the Circular relied upon by the petitioner hasnot been-annexed the application should be dismissed in limine.
HELD:
The waiting list/temporary list is published on the NoticeBoard. These notices are not sent to the persons who makeapplication for admission and therefore they are not availableto the petitioner, and it is not a document for which thepetitioner is entitled to obtain a copy.
310
Sri Lanka Law Reports
(2006) 3 Sri LR.
The petitioner is seeking to include his child in the list ofadmitted children or in the waiting list. This would notnecessarily deprive admission of another child and if at all itwould deprive the children who are less qualified than thepetitioner’s child. The children who are less qualified thanthe petitoner's child are made parties and therefore theirinterests will be looked after by the respondents.;
The consequence of non compliance by reason ofimpossibility or for any other reason, is a matter falling withinthe discretion of Court. The respondents who are familiarwith school admissions would not have been prejudiced bythe ^petitioner's failure to produce the Circular relating toschool admissions.
APPLICATION for a Writ of Certiorari/Mandamus on preliminary objectionsbeing raised.
Cases referred to:-
John Neil Keith vs. G. A. Western Province 46NLR 237
Gunetilleke vs. 6. A. Galle 47 NLR 549
James Perera vs. Godwin Perera – 48 NLR 190
Abeywardane and 162 others vs. Stanley, Wijesundara, ViceChancellor, University of Colombo and Another 1983 2 Sri LR267 at 291
Kiriwanthe and another vs. Navaratne and Another 1990 2 Sri LR393
Nalinda Indatissa for Petitioner.
A. Navaratne DSG for respondents.
Cur. adv. vult.
CA
Jayadeva Vs. Principal, Visaka Vidyalaya and others
(Sriskandarajah, J. )
311
July 5, 2006SRISKANDARAJAH J.
The Petitioner submitted that he is a resident of No.41, Haig Road,Bambalapitiya and had applied for admission to Visakha Vidyalaya interms of Circular bearing No.18/2004 dated 31.05.2005 under ‘theNon chief Occupant Category*. However his child was not admitted toVisakha Vidyalaya in the year 2005 for year 1. The Petitioner in thisapplication is seeking a writ of Certiorari to quash the decision of theobjection board of Visakha Vidyalaya dated 16.11.2004 and thedecision of the School Admission Committee of Visakha Vidyalayadated 21st September 2004 i. e. not to include the name of thepetitioner’s child to the final list and/or to waiting list of the students tobe admitted to the year 1 class for the year 2005. He has also soughta mandamus on the 1st, 2nd, 3rd and 4th Respondents directing themto include the name of the Petitioner’s child in the waiting list and/orthe final list prepared for the year 1 admission to Visakha Vidyalayafor the year 2005 and to admit the child for the said class.
The Respondents raised the following Preliminary objections.:
The Order which the Petitioner is seeking to quash in terms ofprayer “C” and “F” is not annexed to the petition and it is notbefore this court.
The necessary parties are not before Court.
The petitioner is seeking a mandamus relying on a circularbut has not annexed the circular bearing No.18/2004 as partand parcel of the Petition.
Granting the relief of writ of mandamus will be futile.
The first Preliminary objection is that the Petitioner has failed toannex to the Petition the decision of the objection board of Visakha
312
Sri Lanka Law Reports
(2006) 3 Sri LR.
Vidyalaya dated 16.11.2004 and the decision of the school AdmissionCommittee of Visakha Vidyalaya dated 21st September 2004 i.e. notto include the name of the Petitioner's child to the final list and/or towaiting list of the students to be admitted to the year 1 class for theyear 2005. The position of the Respondents is that even though thePetitioner has sought an order of this court to call for the said temporarylist and the final list the Petitioner has failed to obtain those reliefsbefore the date of argument, without these documents this court cannotgrant relief to the Petitioner.
The Petitioner submitted that the decision sought to be quashed isthe decision not to include the petitioner’s child to the temporary listand or to the waiting list to the year 1 class for the year 2005. Theselists were published in the notice board. The temporary list and thewaiting list were published on 21.09.2004 and the final list waspublished on 16.11.2004. These notices are not sent to the personswho make application for admission and therefore they are not availableto the petitioner. As it is not a document for which the Petitioner isentitled to obtain a copy this court overrules the objection that thefailure to annex the said documents would vitiate the application.
The second objection of the respondents is that the necessaryparties are not before court :
The Respondents contend that the Petitioner’s application to thiscourt is on the basis that the petitioner’s child is eligible to be admittedto Visaka Vidyalaya in terms of Circular No.18/2004 and according tothe said circular the Petitioner’s child is more eligible than the childrenof the 6th, 7th, 8th, 9th and 10th Respondents who were admitted toVisaka Vidyalaya. If the relief is granted to the Petitioner thePetitioner’s child will be included in the temporary list, final list orwaiting list according to her eligibility, in that event one of the childrenin the temporary list, final list and the waiting list will be deprived ofadmission and therefore the rights of the children who are named inthe waiting list, temporary list and final list will be affected.
GAJayadeva Vs. Principal, Visaka Vidyalaya and others313
(Sriskandarajah, J. )
The Petitioner admitted that the Petitioner has only chosen to namethe 6th, 7th, 8th, 9th,and 10th Respondents as their children are lessqualified than the Petitioner’s child and not to name all the personswho have gained entry under the non chief occupant category. If anyone of the children of the Respondent from 6th to 10th are found to beless qualified than the Petitioner’s child then that child of theRespondent become ineligible and the names of the child of the saidRespondents (6th to 10th) could be deleted and the Petitioners namecould be substituted in that place.
In John Neil Keith V. G. A. Western Province™, Gunathilaka v G. A.Gaiiem, Jams Perera v Godwin Perera(3) the Court held : “ that wherean order would affect adversely, a party who is not before Court thatparty must be deemed to be necessary party and consequently thefailure to make them as parties must be regarded as fatal to theApplication. In the case of Abayadeera and 162 others V. StanleyWijesundara, Vice Chancellor University of Colombo and Another11at 291 Atukorale, J. (P/C. A) Tambiah, J. and Moonemalle, J. held:
“The whole petition is directed against the 115 students of the NorthColombo Medical College. Both the final relief and the Interim orderasked for by petitioners are intended to achieve one object, namely,the exclusion of the 115 students from the 2nd MBBS examination.According to the affidavit of Or. Ratnavale, who is the Director of theNorth Colombo Medical College, the 115 students have followed theapproved courses of study, have applied to the University of Colomboto sit the 2nd MBBS examination, have paid the requisite examinationfees, and have received their admission cards from the University ofColombo for the said examination. There is no doubt then, that if thisCourt were to issue a Mandamus as prayed for by the petitioners, the115 students would be adversely affected. If as contended by learnedCounsel for the petitioners, the 115 students have no legal right to sitthe 2nd MBBS examination, this is all the more reason we shouldhave them before us and hear them, before we make an order againstthem. To use the words of Cayley, C. J. in effect we are asked by thepetitioners to pronounce an opinion upon a disputed examination,
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Sri Lanka Law Reports
(2006) 3 Sri L R.
without a large section of the students, who propose to sit theexamination, being parties to the proceedings or having had any noticeon them. This we cannot do."
We hold that the 115 students of the North Colombo Medical Collegeare necessary parties and the failure to make them respondents isfatal to the petitioners' application".
In the above mentioned case the Petitioners are seeking to excludethe students from sitting the examination and the exclusion will affectthe rights of those students but in the present case the Petitioner isseeking to include his child in the list of admitted children or in thewaiting list. This would not necessarily deprive admission of anotherchild and if at all it would deprive the children who are less qualifiedthan the Petitioner’s child. The children who are less qualified than thePetitioner’s child are made parties by making their parents asRespondents (6th, 7th, 8th, 9th and 10th Respondents) and thereforetheir interests will be looked after by the said Respondents. For theabove reasons I overrule the second preliminary objection of theRespondents that the necessary parties are not made parties to thisapplication.
The third Preliminary objection is that the petitioner is relying on acircular bearing No. 18/2004 but he has failed to annex the same. ThePetitioner submitted that the writs of certiorari and mandamus is soughtto challenge the exercise of power derived from a circular. As theCircular being a public document could be submitted to court at thetime of argument and it need not be filed with the Petition. Rule 3(1) ofthe Court of Appeal (Appellate Procedure) Rules 1990 requires thefiling of documents material to the application. The circulars can notbe considered as Acts of Parliament, Regulations Rules for the courtto take Judicial notice therefore the Petitioner should have annexedthe said circular to the Petition. In Kiriwanthe and Another v Navaratneand Another{5) Fernando J. observed : “The weight of authority thusfavours the view that while all these Rules must be complied with, thelaw does not require or permit an automatic dismissal of the applicationor appeal of the party in default. The consequence of non compliance(by reason of impossibility or for any other reason") is a matter falling
CASugathananda Thera Vs. Ajith Bodinagoda and others315
(Imam, J.)
within the discretion of the Court, to be exercised after considering thenature of the default as well as the excuse and explanation therefore,in the context of the object of the particular rule”.
In this instant case the Respondents who are familiar with SchoolAdmissions would not have been prejudiced by the Petitioner’s failureto produce the circular relating to School Admission. Therefore thefailure to annex the said circular would not warrant a dismissal in thegiven circumstances. Therefore I overrule the third Preliminary objectionof the respondents.
The fourth Preliminary objection of the Respondents is that the issueof a mandamus will be futile. This objection has to be dealt with thefacts of the case after considering the merits of the application; thereforethe Court will decide on this objection at the conclusion of the argumentof this case on its merits.
Preliminary objection overruled.Matter set down for argument.