HETTIARACHCHI AND OTHERS

VS.

VITHANACHCHI PRINCIPAL AND
HON. AKILA VIRAJ KARIYAWASAM, MINISTER OF EDUCATION AND
OTHERS

SUPREME COURT
SISIRA J. DE ABREW J.
PRIYANTHA JAYAWARDENA PC J.
PRASANNAS.JAYAWARDENA PC J.
SC FR APPLICATION No. 41/2016
04.08.2016.

School admission- Proximity- Article 12 (1) of Constitution- Admission to Grade 1- Cut off point- Equal protection of the Law- Circular P3- Residence category- Proximity to School.

Petitioners submitted their applications to K/ Mahamaya Balika Vidyalaya, Kandy to admit their children to grade 1. The children of Petitioners obtained 81 marks. Cut off point was 81 marks. Names of Petitioners filed in the waiting-list but not admitted to the school. Petitioners contend that children who received 81 marks were admitted to the school.

1st Respondent in the affidavit states that there were 17 applicants who received 81 marks. Only 7 vacancies remaining under residence category. Respondent proceeded to rank the applicant, in order of proximity. The residence of 7 applicants, were closer to the school than residence of the said Petitioners. 1st Respondent based her decision on instruction given by Secretary Ministry of Education (4th Respondent) also a meeting held on 10.08.2015 report of meeting marked R1.

HELD:

1. This can't be the first occasion that a problem of this nature arose. The fact that this type of problem had arisen in the past is evident by the issuance of R1. Therefore it is clear that this type of problem had arisen earlier. Then why didn't the 4th Respondent take steps to include the said instructions contained in R1 by amending the circular P3. It appears from P4A that the 4th Respondent on 18.06.2014 had taken steps to amend clause 18 of circular marked P3. But he had failed to take steps to amend the circular P3 to include instructions contained in R1. The problem that has arisen in this case appears to be a serious problem that the Principals of schools and officers of the Ministry of Education are facing when they take decisions with regard to admission to Grade 1 of Government schools on the basis of residence category. In these circumstances, if the procedure set out in R1 which had been followed by the Respondent is a decision of the Secretary to the Ministry of Education who is the 4th Respondent, why didn't he take steps to include the instructions contained in R1 by amending the circular P3 which governs admission to Grade 1 of Government Schools? The Respondents cannot provide an answer to this question. The Document marked R1 is not a circular. It is only a report of a meeting of all Principals. When R1 is examined, it appears that officers of the Ministry of Education including the Secretary to the Ministry had attended the said meeting. This meeting had been held on 10.08.2015. The above observation demonstrates that said procedure set out in R1 which had been followed by the 1st Respondent is not a part of the circular P3. If the 1st Respondent followed the circular P3, there were compellable reasons for her to admit children of the Petitioners to the school. For the above reasons, I hold that the Respondents have failed to follow the circular P3 when she refused to admit the children of the Petitioners to Grade 1 of Mahamaya Vidyalaya. Further the Petitioners were having legitimate expectations that their children would be admitted to the school as they have complied with the circular P3 which governs admission to Grade 1 of Government schools.

2. Learned SSC tried to contend that on the basis of P4B, the maximum number of students of a class cannot exceed 40 and that therefore the children of the Petitioners could not be admitted to the school. In a hypothetical situation, if two twin sisters have applied for admission of a school and one twin sister becomes the 40th applicant and the other twin sister become the 41st applicant, is i