2018 වසරේදී පවරන ලද මෙම මූලික අයිතිවාසිකම් නඩු 2019 ජූනි 17 වන දින, විභාග කෙරුණු අතර, එහි තීන්දුව 2020 ජූනි 18 ප්රකාශයට පත්කරනු ලැබීය.
මෙම නඩුව පවරා තිබුනේ අලංකාරගේ දොන චතුරිකා සිල්වා හා වෙල්ලවලාගේ ධක්ෂිකා චහීමා විජේබණ්ඩාර යන මහේස්ත්රාත් තුමියන් දෙදෙනා විසින්ය.
ජනාධිපති නීතිඥ ප්රියන්ත ජයවර්ධන, ජනාධිපති නීතිඥ විජිිත් කේ.මලල්ගොඩ හා ඊ.ඒ.පී.ආර්.අමරසේකර යන ශ්රේෂ්ඨාධිකරණ විනිසුරුවරුන් හමුවේ විභාගයට ගන්නා ලද මෙම නඩුවේ තීන්දුව, සෙසු විනිසුරුවරුන්ගේ එකගතාවය සහිතව - ප්රකාශයට පත්කරන ලද්දේ විනිසුරු ජනාධිපති නීතිඥ විජිත් කේ. මලල්ගොඩ විසින්ය.
පෙත්සම්කාර, මහේස්ත්රාත්වරියන් දෙදෙනා වෙනුවෙන් ජනාධිපති නීතිඥ රොමේෂ් ද සිල්වා පෙනී සිටින ලදි.
පෙත්සම්කාර මහේස්ත්රාත්වරියන් දෙදෙනා ප්රකාශ කළේ, පළමු වසරට ළමුන් ඇතුලත් කර ගන්නා පටිපාටිය ඇතුලත් චක්රලේඛ මගින්, තමන්ට මෙන්ම අධිකරණ සේවාවේ නිලධාරීන්ට අගතියක් සිදුව ඇති බවයි.
එය පිළිගත් ශ්රේෂ්ඨාධිකරණය, මෙම මහේස්ත්රාත්වරියන්ගේ දියණියන් දෙදෙනාව, විශාඛා විද්යාලයේ අදාළ වසරවලට වහාම ඇතුලත් කර ගන්නා ලෙසට, විශාඛා විද්යාලයේ විදුහල්පතිනියට හා වගඋත්තරකරුවන් ලෙසට නම් කර තිබු අධ්යාපන අමාත්යංශයේ නිලධාරින්ට නියෝග කළේය.
ගත වූ කාල පරීච්ජේදයන්හී, විශේෂයෙන් ප්රකට- ජාතික පාසල්වලට පළමු වසරට සිසුන් ඇතුලත් කර ගැනීමේ සිදුවූ අක්රමිකතාවන්ට එරෙහිව අගතියටපත් දෙමාපියන් විසින් පවරන ලද මූලික අයිතිවාසිකම් පෙත්සම් මගින්, තම දරුවන් අදාළ පාසල්වලට ඇතුලත් කර ගැනීමට හැකිවිය. ඒ නඩු තීන්දුමගින්, නඩුකියන ලද දෙමාපියන්ට සාධාරණය හිමිවුවද, නඩු කියන්නට වත්කමක් නැති දෙමාපියන්ට මොකද වුනේ ?
IN
THE SUPREME COURT OF THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA
In the matter of an application under Chapter III of the
Constitution of the Democratic Socialist Republic of Sri Lanka in terms of
Article 17 read together with Article 126
Alankarage Dona
Chathurika Silva,
No. 52, Pepiliyana
Mawatha,
Pepiliyana.
Petitioner
Case No: SC/FR/222/2018 Vs.
1. Sunil Hettiarachchi,
Secretary –
Ministry of Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
1A. Pathmasiri
Jayamanne
Secretary –
Ministry of Education,
‘Isurupaya’, Pelawatta,
Battaramulla.
1B. N H M Chitrananda
Secretary –
Ministry of Education,
‘Isurupaya’, Pelawatta,
Battaramulla.
Added
1B Respondent 2
2. Hon. Akila
Viraj Kariyawasm,
Minister of
Education,
Ministry of
Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
2A. Hon. Dallas Alahapperuma,
Minister of Education,
Ministry of Education,
‘Isurupaya’, Pelawatta,
Battaramulla.
Added
2A Respondent
3. W.M. Jayantha
Wickramanayake,
Director –
National Schools,
Department of
Education,
Ministry of
Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
4. Judicial
Service Association,
Chief Magistrate’s
Court Premises,
Colombo 12.
5. R.S.A.
Dissanayake,
President –
Judicial Service Association,
Chief Magistrate’s
Court,
Colombo 12.
5A. Hasitha
Ponnamperuma
President –
Judicial Service Association
District Court,
Matale.
Added
5A Respondent 3
6. M. M. M. Mihal
Secretary –
Judicial Service Association
Magistrate’s
Court,
Mount Lavinia.
6A. Prasanna Alwis
Secretary –
Judicial Service Association
Magistrate’s Court,
Kaduwela.
Added
6A Respondent
7. Hon. Attorney
General
Attorney General’s
Department
Colombo 12.
Respondents
AND
Case
No: SC/FR/223/2018 Wellawalage Dakshika Chanima Wijebandara,
No. 52, Pepiliyana
Mawatha,
Pepiliyana.
Petitioner
Vs.
1. Sunil
Hettiarachchi,
Secretary –
Ministry of Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
1A. Pathmasiri
Jayamanne,
Secretary –
Ministry of Education, 4
‘Isurupaya’,
Pelawatta,
Battaramulla.
1B. N H M
Chitrananda
Secretary –
Ministry of Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
Added
1B Respondent
2. Hon. Akila
Viraj Kariyawasm,
Minister of
Education,
Ministry of
Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
2A. Hon. Dallas
Alahapperuma
Minister of Education,
Ministry of Education,
‘Isurupaya’, Pelawatta,
Battaramulla.
Added
2A Respondent
3. W.M. Jayantha
Wickramanayake
Director –
National Schools,
Department of
Education,
Ministry of
Education,
‘Isurupaya’,
Pelawatta,
Battaramulla.
4. Judicial
Service Association,
Chief Magistrate’s
Court Premises,
Colombo 12. 5
5. R.S.A.
Dissanayake
President –
Judicial Service Association,
Chief Magistrate’s
Court,
Colombo 12.
5A. Hasitha Ponnamperuma,
President -
Judicial Service Association,
District Court,
Matale.
Added
5A Respondent
6. M. M. M. Mihal
Secretary –
Judicial Service Association
Magistrate’s
Court,
Mount Lavinia.
6A. Prasanna Alwis,
Secretary –
Judicial Service Association,
Magistrate’s Court,
Kaduwela.
Added
6A Respondent
7. Hon. Attorney
General
Attorney General’s
Department
Colombo 12.
Respondents
Before: Priyantha
Jayawardena PC, J
Vijith K.
Malalgoda PC, J
E.A.G.R. Amarasekara, J
Counsel: Romesh de
Silva, PC with Sugath Caldera and Harith de Mel for the Petitioners
Sanjeewa
Jayawardena, PC for the 4th – 6th Respondents. 6
Viraj Dayaratne PC, ASG
with Ms. Sureka Ahmad, SC for the 1st,
2nd, 3rd and 7th respondents.
Argued on: 17th June, 2019
Decided on: 18th June, 2020
Priyantha Jayawardena, PC, J
Facts of the Application
SC/FR Application No. 222/2018
The petitioner stated that at the time of filing the instant
application, she was serving as the Additional District Judge of Mathugama.
Subsequent to her appointment as a Judicial Officer in 2010, the petitioner had
been transferred to various parts of the island in the years 2013, 2014, 2015
and 2017 to function as a Judge.
The petitioner had filed the instant application in her
personal capacity as well as on behalf of her child, as the petitioner’s child
had been denied admission to Grade 1 of Visakha Vidyalaya for the year 2017 and
for the benefit of all Judicial Officers. Thus, this application will fall
within the scope of private and public interest litigation regimes.
The petitioner alleged that the acts referred to in the
petition constitute executive and administrative action which resulted in the
violation of the Fundamental Rights of the petitioner and her child.
The 1st respondent is the Secretary to the Ministry of Education and
the 2nd respondent is the Hon. Minister of Education. The 3rd
respondent is the Director of National schools and the 4th
respondent is the Judicial Service Association. The 5th
and 6th respondents are the President and the Secretary of the
Judicial Service Association, respectively.
The petitioner stated that as per the Circular No. 17/2016
issued by the Ministry of Education applicable for the year 2017 school
admissions, the children belonging to ‘various categories’ were entitled to
apply for Grade 1 of State Schools.
Moreover, the petitioner stated that the aforesaid scheme for
admissions to Grade 1 of State Schools requires a stipulated criterion to be
fulfilled. However, Judicial Officers are unable to 7
fulfill the said
criterion due to the nature of the work that they have to perform and the
office held by them.
Further, the children of persons in the staff of institutions
directly involved in school education, the children of persons arriving after
living abroad with the children and the children of officers in the Public
Sector, State Corporations and State Banks who have received transfers on
exigency of service have been included in the said Circular for admission to
Grade 1 of State Schools.
Furthermore, the petitioner stated that the Department of
Education had recognized that the members of the Three Armed Forces and the
Police were unable to comply with the said stipulated criterion in the Circular
and thus, a special criterion had been formulated for the admission of the
children of the members of the Three Armed forces, to a State School.
However, there is no such special criterion stipulated in the
said Circular applicable for admission of the children of Judicial Officers to
Grade 1 of State Schools.
Therefore, from the years 2011 to 2016, the following
practice had been followed when admitting the children of Judicial Officers to
a State School:
Judicial Officers seeking to admit their children to State
Schools would forward their applications indicating the school of first
preference to the Judicial Service Commission through the Judicial Service
Association. If the admission of the children was warranted, the Judicial
Service Commission would forward the applications to the Ministry of Education.
Thereafter, the Ministry of Education would admit those children to the
preferred school of the Judicial Officers.
However, the said practice had not been followed in the year
2017.
The petitioner stated that in the circumstances, the Ministry
of Education had accepted and acknowledged that Judicial Officers are a
separate category for the purpose of admitting their children to State Schools
and accordingly, admitted the children of Judicial Officers to a school of
their preference, including to Grade 1.
Further, over the years Judicial Officers had applied to
admit their children to various schools in different parts of the island such
as Visakha Vidyalaya in Colombo, Royal College in Colombo, Darmashoka Vidyalaya
in Ambalantota, D.S. Senanayake College in Ampara, Maliyadeva Girls’ College in
Kurunegala, Swarnapali Girls’ School in Anuradhapura, Bandarawela Central
College in Bandarawela, Viharamaha Devi Balika Vidyalaya in Kiribathgoda and
Ferguson High School 8
in Ratnapura, etc. and
their requests had been entertained by the Ministry of Education by following
the said practice.
The petitioner stated that in the year 2017, there were 27
applications for admission of the children of Judicial Officers to various
grades of different schools. However, out of the 27 applicants, only 6
applicants had been admitted to the school of their preference.
Moreover, out of the 5 applicants who had applied to Visakha
Vidyalaya for Grade 1, only one applicant had been granted admission to the
said school.
The petitioner further stated that there were 7 applications
from Judicial Officers for the school admission of the year 2018. All these applicants
had received admission to their school of preference, except one child. Later,
he too had been admitted to the school of his preference consequent to
litigation.
The petitioner stated that in view of the said practice that
was in existence for several years, she had a legitimate expectation that it
would be followed by the Ministry of Education and the Department of Education
with respect to the admission of children to Grade 1 for the year 2017 which
would have enabled her to admit her child to Visakha Vidyalaya, Colombo.
Hence, complying with the said practice, the petitioner had
made an application to admit her daughter to Grade 1 of Visakha Vidyalaya for
the year 2017, through the Judicial Service Association for admission.
The petitioner further stated that the Judicial Service
Association had submitted her application to the Judicial Service Commission,
which had thereafter forwarded the same to the Ministry of Education with a
recommendation to admit the child to Grade 1 of Visakha Vidyalaya.
The petitioner stated that the failure on the part of the
Ministry of Education and the Department of Education to follow the
aforementioned practice in the year 2017, violated her legitimate expectation.
Moreover, the petitioner stated that the Ministry of
Education and the Department of Education had reverted to the said practice
applicable to Judicial Officers once again in the years 2018 and 2019.
The petitioner further stated that, the Director of National
Schools had sent a letter dated 12th April,
2017 to the Secretary of the Judicial Service Commission, requesting the
petitioner and the other 9
Judicial Officers
referred to in the said letter to participate in a meeting presided over by the
Minister of Education on 18th April, 2017 in
order to admit their children to State Schools.
However, the petitioner had refused to participate at the
said meeting as she was of the view that it was inappropriate for a member of
the judiciary to meet with officials of the Ministry of Education to admit their
children to schools.
The petitioner further submitted that on 18th
April, 2017 the petitioner’s child was granted admission to
St. Paul’s Milagiriya which however, is not the school preferred by the
petitioner.
The petitioner stated that subsequently she became aware that
certain judges who had met the Minister of Education were able to admit their
children to schools of their preference.
In the circumstances, the petitioner stated that she could
not get her child admitted to a school of her choice as she declined to meet
the Minister of Education and due to the failure of the Ministry of Education
and the Department of Education to follow the longstanding practice of
admitting the children of Judicial Officers to a school of their preference.
The petitioner stated that in the circumstances, the
respondents have violated the Fundamental Rights of the petitioner and her
child, guaranteed by Article 12(1) of the Constitution.
SC/FR Application No. 223/2018
In addition to the above stated facts, the petitioner in
SC/FR Application No. 223/2018 stated that she is also a Judicial Officer and
at the time of filing the application, she was serving as the Magistrate of
Nugegoda.
Subsequent to her appointment as a Judicial Officer in 2007,
the petitioner had been transferred to courts in various parts of the island in
the years 2008, 2010, 2013, 2016 and 2018 to function as a Judge of those
courts.
In accordance with the practice followed by the respondents
to admit the children of Judicial Officers to State Schools, the petitioner had
submitted her application through the Judicial Service Association for the
admission of her daughter to Grade 1 of Visakha Vidyalaya.
The petitioner stated that the Judicial Service Association
had submitted the said application to the Judicial Service Commission which had
thereafter forwarded the same to the Ministry of Education with a
recommendation to admit the child to Grade 1 of Visakha Vidyalaya. 10
Thereafter, on 17th
April, 2017 the petitioner had been informed by the Judicial
Service Commission that a meeting was convened by the Minister of Education on
18th April, 2017 to discuss the issues relating to admission of
the children of Judicial Officers to State Schools.
The petitioner stated that when she attended the said meeting
along with the other judges, the officials of the Ministry of Education
informed that they had taken into consideration the recommendations made by the
Judicial Service Commission, seniority and transfers as their selection
criteria, and handed over a letter of admission to Sirimavo Bandaranayake
Vidyalaya for her child. However, since it was not the school of first
preference of the petitioner, she had not admitted her child to the said
school.
Subsequently, the petitioner found out that the child of a
Judicial Officer who is junior to her, had been given admission to Visakha
Vidyalaya, while her child was not granted admission to the same.
Accordingly, the petitioner stated that overlooking her
request over a junior officer’s is discriminatory and inconsistent with the
said practice followed by the Ministry of Education to admit the children of
Judicial Officers to State Schools.
Further, in addition to the application sent through the
Judicial Service Association, the petitioner had made an application for the
admission of her child to Visakha Vidyalaya (1st preference)
and Sirimavo Bandaranayake Vidyalaya. However, the said application had not
been entertained as the petitioner could not fulfil the admission criterion
stated in the said Circular applicable for admission to Grade 1.
In the circumstances, the petitioner stated that the
respondents have violated the Fundamental Rights of the petitioner as well as
her child guaranteed under Article 12(1) of the Constitution.
After both applications were supported, the Court granted
Leave to Proceed for the alleged violation of Article 12(1) of the
Constitution.
Objections of the 3rd respondent
Re: SC/FR/222/2018
The 3rd respondent filed objections and denied the allegations made
by the petitioner and stated that the Ministry of Education is unable to admit
all children to schools of their choice as the capacity to accommodate students
into more popular schools is limited. 11
