LYENSA FERNANDO AND ANOTHER

LYENSA FERNANDO AND ANOTHER

Vs.

DISSANAYAKE AND OTHERS

SUPREME COURT
FERNANDO, J.
THURAlRAJA, J.
KODAGODA, J.
SC/FR/17/2019
AUGUST 31, SEPTEMBER 25, 2020

Fundamental rights-Article 12(1) of the Constitution-School admission-Proximity category-Direct aerial distance and actual travelling distance by road-Irrationality and unreasonableness

The 2nd petitioner, the father of the 1st petitioner child, made an application for admission to Grade 1 of Yasodara Devi Balika Maha Vidyalaya, Gampaha, under the category of "close proximity to the school", in terms of the relevant circular. Applicants under this category must submit 'main' and 'additional' documents as proof of residence within the 'catchment area' of that school. The petitioner received three out of five possible marks for the 'additional documents'. Documents other than the type listed in the circular were not recognised by the interview panel.

Additionally, the circular provides that full marks for residency in the "catchment area" is only given if there are no other public schools to which the child may gain admission situated in closer proximity to the

residence. Four marks are deducted for each such school. The petitioner received only 24 out of 40 possible marks under this heading..

Ultimately, the 1st petitioner was not selected for admission to the school. The petitioners invoked the fundamental rights jurisdiction of the Supreme Court alleging violation of Article 12(1) of the Constitution.

Held:

1. The decision of the interview board to not recognise the other documents submitted was correct. The relevant clause of the circular is straightforward and rigid, and does not confer any discretionary authority on the interview board to recognise documents not of the type of the eight documents specified in the clause. The wording of the clause shows the list is exhaustive and does not contain an ejusdem generis clause.

2. The scheme relating to the admission of students to public schools must necessarily be founded upon the principle of equality which is the core value protected by Article 12 of the Constitution. This encompasses the need to objectively and rationally apply the circulars in a manner that would give effect to the underlying policies on which the circulars have been made.

3. When determining whether there exists schools in closer proximity to the residence of the applicant, consideration should be given not to the "direct aerial distance" alias "as the crow flies", but to the 'actual travelling distance by road to the relevant school'.

4. The circular has not been rationally interpreted in terms of proximity to the school from the residence of the applicant. The deduction of 16 marks from the maximum 40 marks is irrational and erroneous. This violates Article 12(1) of the Constitution.

Cases referred to:

1. Shavanthi Lakshika Samarakoon and another v. Secretary, Ministry of Education and others (CA/WRIT/67/2019, CA Minutes of 21.11.2019)
2. Sarath Hulangamuwa v. Siriwardena, Principal,Visakha Vidyalaya and others [1986] 1 Sri LR 275
3. Haputhanthrige and others v. Attorney General [2007] 1 Sri LR 101

4. Dasanayakage and others v. Dissanayake and others (SC/FR/35/11, SC Minutes of 12.07.2011)
5. Kirihandi Yeshin Nanduja De Silva and others v. Sumith Parakramawansha, Principal, Dharmashoka Vidyalaya and others (SC/FR 50/2015, SC Minutes of 02.08.2017)
6. Himanshu Suneth Nanayakkara and others v. S.S.K. Aviruppola, Principal, Visakha Vidyalaya and others (SC/FR/24/2018, SC Minutes of 29.11.2018)

APPLICATION under Article 126 of the Constitution for infringement of fundamental rights.

Saliya Pieris, P.C., with Susil Wanigapura for the Petitioner.

Rajiv Goonetillake, S.S.C., for the 7th. 17th, 17A and 18th Respondents.

cur. adv. vult.

March 23, 2021

KODAGODA, J.

This judgement relates to an Application filed in terms of Article 126 of the Constitution

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