RIZWAN AND ANOTHER

Vs.

PRINCIPAL, RICHMOND COLLEGE, GALLE AND OTHERS

SUPREME COURT
ALUWIHARE, J.
JAYAWARDENA,J.
M.N.B. FERNANDO, J.
SC/FR/292/2018
FEBRUARY 27, 2019

Fundamental rights-Article 12(1) of the Constitution-Grade one school admission

The 1st petitioner, the father of the 2nd petitioner submitted an application to Richmond College, Galle for the admission of the 2nd petitioner to grade one in the year 2018, under the proximity category based on clause 7.2 of the circular dated 30.05.2017. At the interview, 15 marks were deducted under clause 7.2.3 on the basis that three schools other than the preferred school were situated in close proximity to the petitioner's residence. The contention of the petitioner was that the deduction of 10 marks for C.W.W. Kannangara Vidyalaya, Galle and Paramananda Vidyalaya, Galle was contrary to the circular since the said schools admit only 1 % of students

belonging to the Islamic faith. The petitioner relied on a document marked P13. The 2nd respondent Zonal Director of Education from whose office P13 was issued, was not represented before the court.

The respondents took up the position that the petitioner was eligible to seek admission to the said three schools without any hindrance. The petitioner did not challenge this position by way of counter objections.

In terms of clause 7.2.3. of the circular "In the event of having other Government Schools with Primary Sections for the admission of the child which are closer to the place of residence than the School applied for, marks will be deducted at the rate of 05 marks from the maximum marks for each such closer School. Other Government Primary Schools that the child could be admitted mean, if the Government School concerned has the learning medium the child has applied for, if a girls or boys School or a mixed School appropriate for the child and if a Government School which can admit 10% or more children of the religion to which the child belongs."

Held:

The key word in clause 7.2.3. is "can". Thus, the question that needs to be answered is how many children of Islamic faith "can" be admitted or what is the percentage of children of Islamic faith that "can" be admitted. The number of children or the percentage of children of Islamic faith actually admitted during the last few years is not material and is not the issue. What the petitioner should establish before the court is that there is a regulation or a rule that the school, being a Government School "can" admit only less than 10% of children belonging to the Islamic faith. The petitioner has failed to adduce any evidence to substantiate that the two schools "can" admit only 1 % of children belonging to the Islamic faith. The petitioner only relies on P13, the percentages of which are disputed by the respondents.

Cases referred to:

1. Laksith and another v. Chairman School Committee, Dharamashoka Vidyalaya, Ambalangoda and others [2009] 2 Sri LR 267
2. Dayawathie v. Principal Girl's High School Kandy and others (SC/ FR/ 459/2017, SC Minutes of 05.11.2018)
3. Wijesinghe v. Attorney General [1978-79-80] 1 Sri LR 102
4. Snowden v. Hughes 321 U.S. 1 (1944)

APPLICATION under Article 17 and 126 of the Constitution for infringement of fundamental rights.

M.U.M. Ali Sabry, P.C., with Samhan Munzir and Hassan Hameed for the Petitioners.

Suren Gnanaraj, S.S.C., for the Respondents.

cur. adv. vult.

October 9, 2019

M.N.B. FERNANDO, J.

The 1st and 2nd Petitioners ("Petitioner") have filed this application seeking a Declaration that the 1st and 2nd Petitioner's Fundamental Rights guaranteed under Article 12(1) of the Constitution have been violated by one or more of the Respondents and for a Direction to the Respondents to admit the 2nd Petitioner to Grade One of Richmond College, Galle.

This Court granted Leave to Proceed on 26-11-2018 for the alleged violation of Article 12(1) of the Constitution against all the Respondents