IN THE COURT OF APPEAL OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA In the matter of an application for the grant of Writs of Certiorari and Prohibition under and in terms of Article 140 of the Constitution.

Kaluhenage Kalindu Deshan Vimukthi de Silva CA/WRIT/528/2021 No.180/B, Kurunegala Road, Liyanwala, Padukka. Petitioner Vs.

1. General Sir John Kotelawala Defence University Kandawala Road, Ratmalana.

2. General (Rtd) Gerard Hector de Silva Chancellor General Sir John Kotelawala Defence University Kandawala Road, Ratmalana.

3. General (Rtd) Kamal Gunaratne Chairman of the Board of Management General Sir John Kotelawala Defence University Kandawala Road, Ratmalana.

4. P. B. S. C. Nonis

5. General L. H. S. C. Silva

6. Vice Admiral Nishantha Ulugetenne

7. Air Marshall S. K. Pathirana 8. Major General Milinda Peiris

9. Prof. Sampath Amaratunge

10. Mr. P. A. S. A. Kumara

11. Mr. V. D. Kithsiri (Secretary/

Convener)

All being members of the Board of Management of the General Sir John Kotelawala Defence University at Kandawala Road, Ratmalana.

12. Federation of University Teachers Association Department of Physics, The Open University of Sri Lanka, PO Box 21, Nawala.

Respondents Before : Sobhitha Rajakaruna J.

Dhammika Ganepola J.

Counsel : M. A. Sumanthiran, PC with Ermiza Tegal, Mark Schubert, M. Divya and Anu Kulanayagam for the Petitioner.

Sumathi Dharmawardana PC, ASG with S. Soysa SC for the 1^st to 11^th Respondents.

Upul Kumarapperuma with Shalini Weeraratne for the 12^th Respondent.

Argued on: 09.03.2023 Written submissions: Petitioners- 20.06.2023

1st to 11th Respondents- 22.06.2023

12th Respondents - 17.05.2023 Decided on: 04.07.2023 Sobhitha Rajakaruna J.

The question which needs consideration by this Court in the instant application is whether the General Sir John Kotelawala Defence University (‘University’) is permitted to allow civilian students, particularly the students who do not come within the categories of students expressly mentioned in the Section 4 of the Sir John Kotelawala Defence Academy Act No. 68 of 1981 (‘Act’), to follow Degree Programmes at the said University (Sir John Kotelawala Defence Academy is now identified as General Sir John Kotelawala Defence University as a result of the amendments introduced to the said Act by Act No.

27 of 1988 and Act No. 50 of 2007).

The contention of the Petitioner is that the decision of the 1^st Respondent to advertise and prepare to conduct for new admissions of civilian students as reflected in ‘P3’ is arbitrary, irrational, capricious, unreasonable and/or ultra vires the powers of the relevant Respondents. The said ‘P3’ is an advertisement published by the University, advertising the degrees offered at the University (at Rathmalana) and at the KDU Southern Campus (Sooriyawewa). The Petitioner is seeking for a mandate in the nature of a writ of prohibition preventing any one or more of the Respondents from taking any decision/action to advertise, admit, instruct and/or conduct courses, trainings or programmes for persons who are not pre-cadet officers, cadet officers, officers or public officers at the said University.

The 1^st to 11^th Respondents (’Respondents’) raising several preliminary objections contend that if the reliefs prayed for in the prayer of the Petition are granted, the process before the Parliament would be redundant as a Bill in relation to the University has been published in the Gazette on 11.04.2018, marked ’P4’, and such Bill has not yet been approved by Parliament. The said Respondents submit that an additional category of students has been introduced during such process before the Parliament and the amendments to the said Act are to be suggested at the committee stages in the Parliament.

The Petitioner’s main contention is that in view of the objects, powers and duties set out in the Act, the University has not been granted with any power to admit students other than (i) pre-officer cadets, (ii) officer cadets, (iii) officers, and/or (iv) public officers. Further, i