031-SLLR-SLLR-2005-V-1-KUNANANTHA-vs.-UNIVERSITY-OF-JAFFNA-vs.-UNIVERSITY-OF-JAFFNA-AND-OTHERS.pdf
qaKunanantham vs239
University of Jaffna and 'others (Sriskandarajah, J.)
KUNANANTHAMVSUNIVERSITY OF JAFFNA AND OTHERSCOURT OF APPEAL,
MARSOOF, PC., (P/CA) ANDSRISKANDARAJAH, JC.A. No. 1559/2003AUGUST 23 ANDSEPTEMBER 13 AND 27, 2004.
Universities Act;- No. 16 of 1978, sections 19(2) (and 71 (1) – Petitioner selectedby Selection Board – Board certification not given – Subsequently waived bythe U. G: C. – Public duty to appoint teachers to the University – Power andauthority of U. G. C. – Does writ lie? – Powers of the University Appeals Board
The 1st respondent – University of Jaffna by a public advertisement called forapplications for the post of. Professor of Surgery, Associate Professor ofSurgery and Senior Lecturer Grade I. The Petitioner applied for the aforesaidposts. The 8th respondent the University Grant Commission (U. G. C) informedthe University that the petitioner is eligible to be considered for the post ofSenior Lecturer Grade I in surgery provided he has Board certification by thePGIM. The Selection Board had selected the petitioner. The 8th responsdentUGC subsequently waived the requirement of the Board Certification andrequested the University to appoint the petitioner to the said post. The petitioneras he was not appointed moved for a writ of mandamus on the respondentsto appoint him to the said post.
Held:.
Under section 71 (1) of the Universities Act, the appointment of the staff toa Higher Education Institution shall be made by the governing authority ofsuch institution or in accordance with the schemes of. recruitment and theprocedure for appointments prescribed by Ordinance. The power to makeOrdinance, schemes of recruitment and the procedure for appointmentof staff to the Higher Education Institutions are vested with the UGC undersection 18 (1). The. determination of qualification for different posts is amatter for the UGC and it is not a matter for the University.
The 1st to 8th respondents have a public duty to appoint teachers to the1st respondent University. The petitioner has a right to be appointed tothe said post as he was selected by the Selection Board and the 8threspondent'UGC, had given its approval for the appointment.
The respondents have no absolute power to refuse or delay theappointment of the petitioner.
2 – CM 5521
240Sri Lanka Law Reports(2005) 1 Sri L. R.
Powers of the Appeal Board are limited to conduct investigations intoappointments and promotions alleged to have been made to the staff ofthe Commission and to the Higher Educational Institutions. The AppealBoard does not have the power to investigate into the non-appointmentof staff to the Highter Education Institution.
APPLICATION for a writ a of mandamusCases referred to :
W.K. C. Perera vs Prof. Daya Edirisinghe and others (1995) -1 Sri LR 148(SC) .
Heater Mudy vs Central Environmental Authority and others S. C. 58/03 -SCM 20. 01. 2004.
Dr. J. de Almeida Gunaratne, P. C. with Kishali Pinto — Jayawardene and Dr.Mangala Wijesinghe for petitioner,
Eva Wanasundara, Deputy Solicitor General with Yurasha de Silva. StateCounsel for 1st – 9th respondents.
November 01, 2004S.SRISKANDARAJAH, J.
The petitioner submitted that he obtained his MBBS degree from theUniversity of Peradeniya in 1970. In 1973 he passed his preliminaryexamination in FRCS and after obtaining training in the United Kingdomhe passed his FRCS in 1980. On his return to Sri Lanka he got anappointment in the Jaffna Teaching Hospital. He worked there from 1981to 1985. Thereafter he left for the United Kingdom and obtained a furtherFRCS in Neurosurgery in 1990. In 1995 he returned to Sri Lanka andworked in the 1 st respondent University as a visiting lecturer for a briefperiod and left for the United Kingdom due to the unsettled condition inJaffna. In 1997 he returned to Sri Lanka and functioned as a visitinglecturer and examiner of the 1 st respondent University; thereafter he leftfor the United Kingdom to complete his Ph. D. While he was in theUnited Kingdom he was assured by the 3rd respondent by his letter of 30.04. 1997 (P11) that he would be given a permanent appointment in the1st respondent University. In this letter the 3rd respondent stated interalia:
" Enclosed is a letter appointing as 'senior lecturer on contract', don'tget upset '. The normal selection process for the post of Professor
qa' Kunanantham vs-241
University of Jaffna and others (Sriskandarajah, J.)
takes at least 3 months. In order to avojd unnecessary delay I requestedt^e Vice – Chancellor to appoint you on contract. This does' hot go
through the normal process of selection .•In the mean time your
application for the chair is being processed and we will fix the date wellafter your arrival”.
The petitioner submitted that on this assurance he got an early retirementand returned to Sri Lanka and took appointment as a Visiting Professorof Surgery on contract basis. He was also appointed as the Head of theDepartment of Surgery for three years by the letter dated 29. 09. 1997(P11)ofthe 7th respondent, Professor P. Balasunderampillai the formerVice Chancellor, of the 1st respondent University. This appointment letter ■states inter alia:
“ I am pleased to inform you that the Council of the University of Jaffnahas appointed you as the Head of Department of Surgery with effectfrom the 04.09.1997 for three years or up to your period of appointmentwhichever is earliest."
The petitioner-submitted that a selection board of the 1st respondentUniversity interviewed him in May, 1998 for the post of Professor and .thereafter he was informed that the recommendation of the 1 st respondentUniversity had been rejected by the 8th respondent, the University GrantsCommission. The 2nd respondent admitted this position and stated thatthe selection board of the 1st respondent University recommended thatthe petitioner should be appointed to the post of Professor of S.urgerysubject to the approval oftheUGC. After considering the recommendationof the 1 st respondent University, the University Grants Commission informedthe Vice Chancellor of the University of Jaffna by its letter dated 26 May1998 (2R5) that the petitioner has not been qualified to be appointed tothe post of Professor of Surgery in terms of circular No. 547 . The 3rdrespondent and two other former Deans of the Faculty of Medicine of the1st respondent University lodged their protest to the 8th respondentagainst the non-appointment of the petitioner for the post of ProfessorSurgery.
The petitioner thereafter worked for about five years on extensions ofhis contract as Visiting Professor of Surgery at the 1st respondentUniversity during which perio'd the post of Professor of Surgery at the1 st respondent University remained vacant.
242Sri Lanka Law Reports(2005) 1 Sri L. R.
In August 2002 in response to an advertisement inviting for applicationsfor the post of Professor of Surgery, Associate Professor of Surgery, andSenior Lecturer Grade 1 in Surgery the petitioner applied for the abovementioned posts. In May 2003 the 8th respondent had informed the 2ndrespondent in replying to a query of the 2nd respondent that the petitioneris eligible to be considered for the post of Senior Lecturer Grade I inSurgery in terms of Part 1 & 2 of the scheme of recruitment for the post ofSenior Lecturer Grade 1 provided he has Board Certification of thePostgraduate Institute of Medicine (P30). By that time on the 8th March,2003 the Postgraduate Institute of Medicine has informed the petitionerthat the Board of Management has decided to grant the privilege of BoardCertification to the petitioner subject to confirmation of the Senate of theUniversity of Colombo (P31). The 2nd respondent thereafter informed thepetitioner by his letter of 17. 06. 2003 that the selection board hasdecided to wait until the time of submitting the Board Certification ofPostgraduate Institute of Medicine after confirmation by the Senate ofthe University of Colombo (P32a). The petitioner submitted that eventhough the 8th respondent by its letter of 17. 07.2003 requested the 2ndrespondent to appoint the petitioner to the post of Senior Lecturer GradeI, the 1st respondent University has not taken any action to appoint himto the said post but on the contrary the 2nd respondent terminated hisservices as a Visiting Professor by not extending his services after 18.08. 2003 by his letter of 28th July, 2003 (P34). When he inquired abouthis appointment to the post of Senior Lecturer Grade 1 the 2nd respondentreplied by his letter of 01.08. 2003 (P35), that no recommendation hasbeen made by the selection committee, which met on 25th July, 2003,for the post of Senior Lecturer Grade I. The petitioner in this application isseeking to quash the decision communicated by the letter of the 2ndrespondent dated 01. 08. 2003 and to issue a writ of mandamus toappoint him to the post of Senior Lecturer Grade I.
The 2nd respondent in his objection heavily relied on the relevantcirculars and attempted to demonstrate that the petitioner does not havethe necessary qualification other than the requirement of the BoardCertification, to be appointed to the post of Senior Lecture Gradel.lfthe2nd respondent is confident that the petitioner is not qualified for the postof Senior Lecturer Grade 1 there is no necessity for the 2nd respondentto inquire from the University Grants Commission by his letter of 29. 04.2003 (P28) oh the eligibility of the petitioner for the post of Senior LecturerGrade I. The 8th respondent in reply to this letter (P28) has categorically
qaKunanantham vs •243
University of Jaffna and others (Sriskandarajah, J.)
stated that the petitioner is eligible to be considered for the post of SeniorLecturer Grade I in Surgery in terms of Part 1 & 2 of the scheme ofrecruitment. But as thevacancy had occurred in the Clinical Department,the 8th respondent insisted on Board Certification (P30). The Court takesserious note of the averments contained in paragraph 24(h) of the 2ndrespondent’s affidavit and the annexes marked 2 R13. The 2nd respondent,has stated therein that there are many instances of medical negligenceon the part of the petitioner. These incidents have also created a publicopinion in the medical community at the University of Jaffna regardingthe petitioner’s non-suitablility to hold the post he was holding. The Courtalso notes that the documents marked as 2 R 1,3 contain letter of the 5threspondent and other documents given by different persons at therequest of the 5th respondent (this is specifically stated in those letters).These letters appear to be prepared by one person and they are similarto that of the format of the letter of the 5th respondent and they bear thesame date. These letters begin with/’We Consultant Surgeons”, and “IIntern Medical officer", but does not include the names of those personsin the body of the letter. These letters contain serious allegations againstthe petitioner and appear to have been obtained after the institution of thisapplication. One does not know'how these documents and theobservation of the 2nd respondent would have a bearing on theappointment of the petitioner as appointment was considered by theselection board before the institution of this application. If these complaintswere there at the time of the consideration of the application of thepetitioner for the said post the respondents could have consideredthese complaints and rejected the application of the petitioner on thefirst instance without seeking clarification on his qualification from theUniversity Grants Commission (P28). They would not have subsequentlyinformed the petitioner that they are waiting for the board certification forthis appointment (P32a). The above statements and the documentsmarked 2 R 13 shows the mala tides of the 2nd respondent and the 5threspondent towards the petitioner. The 2nd respondent has also madean attempt to misrepresent facts to this Court by stating that the petitionerwas not recommended for the post of Senior Lecturer Grade I by theselection board. He has not submitted the minutes of the selection boardto confirm this fact instead he relied on a reply sent to the petitionerdated 01.08. 2003 marked (P35). This letter reads as follows:-
‘This is to inform you that no recommendation is made by the selection com-mittee which met on 25th July, 2003, for the post of Senior Lecturer Grade I"
244• Sri Lanka Law Reports(2005) 1 Sri L. R.
By reading this letter in the context of letter of the 2nd respondentdated 17.06.2003 (P32a) the only conclusion that could be arrived atis that the selection committee has not made any further decision on25th July, 2003 in relation to this appointment. But in any event this letterdoes not state that the petitioner was not recommended for the said post.In fact the selection board had met before 29. 04. 2003, considered theapplication of the petitioner for the said post, and decided to seekclarification from the 8th respondent in relation to the eligibility of thepetitioner by its letter of 29. 04. 2003. This fact is borne out by (P30).
The letter of 01. 08. 2003 (P35) does not contain a decision ordetermination; therefore the Court makes no order in relation to prayer (a)of the Petition.
Under the provisions of the Universities Act, No. 16 of 1978 as amended,the 1st respondent and its officers are under a public duty to offeruniversity education (section 3), for which purpose, they are under apublic duty with regard to the appointment of persons to relevant posts.Section 71 (1) of the Universities Act provides for the appointment of a‘teacher' which includes a senior lecturer. According to this section theappointment shall be made by the Council of the University in accordancewith the scheme of recruitment and the procedures for appointmentprescribed by Ordinance. It is the duty of the University to appoint teachersto ensure that the courses conducted by the University could be continuedwithout interruption and the students who are following these courses willnot be adversely affected. The 1st respondent in August, 2002 by apublic advertisement called for applications for the post of ProfessorSurgery, Associate Professor of Surgery and Senior Lecturer Grade I .The petitioner applied to the aforesaid posts. The 2nd respondent hasnot disclosed in his affidavit the steps taken to process the petitioner’sapplication or the decisions of the selection board. It appears from P30that the selection board had met before 29. 04. 2003 to consider theapplication of the petitioner but the 2nd respondent had failed to submitthe relevant minutes made by the selection board at the time of consideringthis application. The court has to gather information only from thedocuments filed by the petitioner. The 8th respondent by its letter of 7thMay 2003 (P30) informed the 2nd respondent regarding a clarificationsought by 2nd respondent that the petitioner is eligible to be consideredfor the post of Senior Lecturer Grade I in Surgery in terms of Part 1 & 2 ofthe scheme of recruitment for the post of Senior Lecturer Gradel provided
qaKunanantham vs245 ■
University of Jaffna and others (Sriskapdarajah, J.)
he has Board Certification by the Postgraduate Institute of Medicine. The2nd respondent has informed the Petitioner by its letter of 17. 06. 2003that the selection board has decided to wait until the time for submittingthe Board Certification of PGIM after confirming by the Senate of theUniversity of Colombo (32a). These correspondence show that theselection board has selected the petitioner for the said post but was awaitingthe confirmation of the Board Certification. If the petitioner is not otherwiseselected the 2nd respondent would have informed the petitioner accordingly.The petitioner’s application to the post of Senior Lecturer Grade I is nototherwise rejected by the selection board. Therea'fter once the petitionerfullfils the requirement of the confirmation of the Board Certification he willbe entitled to this appointment. The selection board has no'discretion to.exercise at this stage as it has already made a decision in relation to theappointment of the petitioner subject to the confirmation of the BoardCertification. The respondent has not produced any material to contradictthis position as the minutes of the selection board are in the possessionof the 2nd respondent.
Under section 71 (1) of the Universities Act the appointment of the staffto a Higher Educational Institution shall, be made by the governing authorityof such .institution, in accordance with the schemes of recruitment andthe procedure for appointment prescribed by Ordinance. The powers tomake Ordinances, the schemes of recruitment, and the procedure forappointment of staff to the Higher Educational Institutions are vested withthe University Grants Commission under section 18(1). Therefore thedetermination of qualification for different post is a matter for the UniversityGrants Commission and it is not matter for the University.
The petitioner applied for the post of Professor of Surgery in 1998 andthe selection board of the 1st respondent recommended the petitionerforthe said post (2R4). But the University Grants Commission reluctantlyrejected the recommendation observing;
“Dr. Kunanandam should be interviewed for the post, the situation beexplained to him and he be offered the post of a consultant carrying theemoluments of a full Professor. He should be assured that as soon ashe acquires the points required to qualify him to become an AssociateProfessor he would be appointed to the post he has applied for.Considering that he had acquired a PH. D whilst working asNeurosurgeon Dr. Kunanandam should be able to fulfil the requirementin short time (2R5).”
246Sri Lanka Law Reports(2005) 1 Sri L. R.
Thereafter the petitioner was continuously working in the 1st respondentUniversity as a Visiting Professor until he made this application in August2002 for the post of Senior Lecturer Grade I. Even on this occasion theselection board sought clarification from the 8th respondent and the 8threspondent stated that the petitioner had fulfilled the criteria provided hehas a Board Certification. By that time on 8th March, 2003 the PostgraduateInstitute of. Medicine has informed the petitioner that the Board ofManagement has decided to grant the privilege of Board Certification tothe petitioner. However this decision is subject to confirmation of theSenate of the University of Colombo (P31). In the meantime the 8threspondent by its letter of 17. 07. 2003 requested the 2nd respondent toappoint the petitioner to the post of Senior Lecturer Grade 1 . He pointedout in his letter that he was working for the last six weeks to obtain aBoard Certification confirmatory letter from the Director, PostgraduateInstitute of Medicine (PGIM). The Director/ PGIM stated that she isworking on this matter and it will be placed before the Board of Managementmeeting of the Postgraduate Institute of Medicine. The letter of BoardCertification would be issued after that. The Director, PostgraduateInstitute of Medicine is the 9th respondent. He did not file objection orexplain the delay in issuing the Board Certificate to the petitioner. Therequirement of Board Certification was made as a condition for thisappointment by the 8th respondent for the reason that the vacancy hadoccurred in the Clinical Department (P30). The 8th respondent thereafterwaived this condition for the reasons stated in his letter of 17. 07. 2003(P33) and requested the 2nd respondent to appoint the petitioner to thepost of Senior Lecturer Grade I. The 8th respondent has the authority todo so under section 18 (2) (c) of the Universities Act. In thesecircumstances, this Court does not view Board Certificate as anindispensable prerequisite. The only impediment the 2nd respondenthad for the appointment of the petitioner was the condition laid down bythe 8th respondent. The 8th respondent by the above letter (P33) has notonly given approval to the appointment but also requested the 2ndrespondent to appoint tee petitioner to the post of Senior Lecturer Grade 1.Under these circumstances the petitioner is entitled-for this appointment.In W. K. C. Perera v Prof. Daya Edurisinghe and Othersf'] the SupremeCourt held;
“Article 12 of the Constitution ensures equality and equal treatmenteven where a right is not granted by common law, statute or regulation,and this is confirmed by the provisions of Articles 3 and 4 (d). Thus
CAKunanantham vs247
University of Jaffna and others (Sriskandarajah, j.)
whether the rules and examination criteria have statutory force or not,the rules and examination criteria read with Article 12 confer a right ona duly qualified candidate to the award of the degree and a duty on theUniversity to award such degree without discrimination and even wherethe University has reserved some discretion, the exercise of thatdiscretion would also be subject to Article 12, as well as the generalprinciples governing the exercise of such discretion.
The petitioner, having satisfied the rules and examination criteria,was entitled to the award of the Degree of Bachelpr of Fine Arts on therules of the final examination held in 1990. The University of Kelaniyaand the Institute are public bodies set up by statute and performing-public functions, using public funds. Under the rules and examinationcriteria read with Article 12 there was a public duty cast upon its officers,enforceable by mandamus to take necessary steps to award theappellant that degree.”
His Lordship Justice M. D. H. Fernando in Heater Mundy vs CentralEnvironmental Authority and Others held that;
■ "The jurisdiction conferred by Article 140, however is not confined to“prerogative” writs or “extraordinary remedies” but extends — “subjectto the provisions of the Constitution”- to orders in the nature of writs ofcertiorari, etc. Taken in the context of our Constitutional principlesand provisions, these “Orders” constitute one of the principal safeguardsagainst excess and abuse of executive power; mandating the judiciaryto defend the sovereignty of the People enshrined in Article 3 againstinfringement or encroachment by the Executive, with no trace of anydeference due to the crown and its agents. Further this court itself haslong recognized and applied the "public trust” doctrine; that powersvested in public authority are not absolute or unfettered but are held intrust of the people, to be exercised for the purpose for which they havebeen conferred, and that their exercise is subject to judicial review byreference to those purposes.”
The 1st to the 8th respondent’s have a public duty to appoint teachers tothe 1st respondent University. For the reasons stated above and in thebackground of the decisions cited above, the petitioner has a right to beappointed to the said post as he was selected by the selection board andthe 8th respondent had given his approval for the appointment of the petitioner.The 1 st to the 6th respondents have no absolute power to refuse or delaythe appointment of the petitioner under the given circumstances.
Sri Lanka Law Reports
(2005) 1 Sri L. R.
24 S
' The respondents have raised a preliminary objection that the petitionerhas madean appeal to the University Services Appeals Board and thereforehe has not exhausted all the alternate remedies available to him prior tofiling of his application.
The powers, duties and functions of the Appeals Board are provided,under section 86 of the Universities Act;
86. The Appeals Board shall have and may exercise the following powersduties and functions:-
(a) To conduct investigations into appointments and promotions allegedto have been made to the staff of the Commission and to Higher EducatonalInstitutions in contravention to the scheme of recruitment and the procedurefor appointment in force at the time such appointments or promotionswere made:
……
The powers of the Appeals Board are limited to conduct investigationinto appointments and promotions alleged to have been made to the staffof the Commission and to the Higher Educational Institution. The AppealsBoard does not have the power to investigate into the non appointmentof staff to the Higher Educational Institutions. In this application thepetitioner complains that he was not appointed to the post of Senior LecturerGrade 1 and is seeking a mandamus from this Court to direct the 1strespondent to appoint him to the said post. Therefore the preliminaryobjection that the petitioner has not exhausted the alternate remedyavailable to him prior to filing of this application has no merit and thisCourt dismisses the preliminary objection.
For the reason stated above the Court issues a writ of mandamusdirecting the 1 st to the 6th respondents to appoint the petitioner forthwithto the post of Senior Lecturer Grade 1. The Court makes no order of cost.
MARSOOF, P.C., PICA -1 agree.
' Application allowed.