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විනිසුරු දියණිය වහාම පාසලට ඇතුලත් කරනු!!! ශ්‍රේෂ්ඨාධිකරණය නියෝග කරයි.

තම දියණියන් විශාඛා විද්‍යාලයේ පළමුවසරට ඇතුලත් කර නොගැනීමට එරෙහිව, මහේස්ත‍්‍රාත්වරියන් දෙදෙනෙක් ශ්‍රේෂ්ඨාධිකරණය හමුවට ගියේ, එමගින් තමන්ගේ පමණක් නොව,අධිකරණ සේවාවේ මූලික අයිතීන් උල්ලංඝණය වී ඇති බවට ප‍්‍රකාශ කරමින්ය.
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.
SC/FR/222/2018 හා C/FR/223/2018 යටතේ වූ මෙම නඩු දෙකේ,වග උත්තරකරුවන් ලෙසට අධ්‍යාපන අමාත්‍යංශයේ ලේකම්වරුන්, අධ්‍යාපන ඇමතිවරුන්, ජාතික පාසැල් අධ්‍යක්ෂ, අධිකරණ සේවා සංගමයේ නිලධාරීන් සහා නීතිපති නම්කර තිබිණ.
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 ?  
නඩු තීන්දුව:-

 

 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

 


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