PROF. ELANKUMARAN

Vs.

UNIVERSITY OF JAFFNA AND OTHERS

COURT OF APPEAL
OBEYESEKERE, J.
CA/WRIT/147/2013
DECEMBER 12, 2018

Writs of certiorari and mandamus-Universities Act, No. 16 of 1978, section 86-University Grants Commission Circulars No. 723 and 869-University Services Appeals Board-Appointment of Associate Professors and Professors

The petitioner's application to be appointed as a Professor in Economic Statistics at the University of Jaffna was rejected by the University, and his appeal to the University Services Appeals Board (USAB) was dismissed.

The petitioner filed an application in the Court of Appeal seeking to quash the decision of the USAB by certiorari and to compel the Council of the University to promote him to the post of Professor in Economic Statistics from 29.11.2005 on the basis that the said decisions are inconsistent with Circular Nos. 723 and 869 inasmuch as the screening committee

to evaluate the petitioner was improperly constituted, the report of the external experts was incorrectly considered, and the marks given to the petitioner by the panel and external experts had been irregularly altered by the selecting committee.

Held:

1. The general rule is that the court is slow to interfere with the decisions taken by educational institutions and their authorities unless such decisions are demonstrably illegal, arbitrary and unconscionable. This is mainly because of a lack of judicially manageable standards and the necessary expertise to assess, scrutinise and judge the merits and demerits of such decisions. However, this does not mean that academic decisions are not subject to judicial review.

2. The appointment of a screening committee is outside the approved scheme of promotion. In addition, making the observations of the screening committee available to external experts is illegal.

3. Instead of taking the average mark of the two external experts, the course of action adopted by the university to appoint a third external expert to determine the eligibility of the petitioner is contrary to circular No. 723. Although the appointment of a third external expert can be justified under the new circular No. 869, the procedure was not followed in the appointment of the third external expert.

4. The adjustment of marks by the section committee without any reason is contrary to the procedure.

5. The petitioner had a legal right to be appointed as a professor and the respondents were under a legal duty to make that appointment.

Cases referred to:

1. Abeysundara Mudiyanselage Sarath Weera Bandara v. University of Colombo and others (CA/WRIT/844/2010, CA Minutes of 08.06.2018)
2. Dr. Karunananda v. Open University of Sri Lanka and others [2006] 3 Sri LR 225
3. Ramana Dayaram Shetty v. International Airport Authority of India and others Al R 1979 SC 1628

4. Biso Menika v. Cyril de Alwis and others (1982] 1 Sri LR 368 at 379-380
5. Heather Mundyv. Central Environmental Authority and others (SC 58/03, SC Minutes of 20.01.2004)
6. W.K.C. Perera v. Professor Daya Edirisinghe and others (1995] 1 Sri LR 148

APPLICATION for Writs of Certiorari and Mandamus.

Faisz Musthapha, P.C.,with Thushani Machado for the Petitioner.

Sumathi Dharmawardena,A.S.G., for the 1st-15th, 15B-36th Respondents.

cur. adv. vult.

May 17, 2019

OBEYESEKERE, J.

When this application was taken up for argument on 30th July 2018, the learned President's Counsel appearing for the Petitioner and the learned Additional Solicitor General appearing for the Respondents moved that this Court deliver its Judgment on the written submissions that would be tendered by the parties.

The Petitioner, having joined the 1st Respondent University of Jaffna as an Assistant Lecturer (Probationary) in Economics on 1st January 1990, is presently serving the 1st Respondent as an Associate Professor in Economic Statistics attached to the Department of Economics.

Being