Judgment:
J.A.N. de Silva, C.J.
Having granted leave to proceed for the alleged infringement of Article 12 (1) of the Constitution, Learned Presidents Counsel for the Petitioner and the Learned State Counsel for the 1st to 3rd and 5th Respondents invited Court to take up the application for hearing in view of the grave urgency in the matter which relates to an inter-university transfer.
The 1st Respondent is the University Grants Commission established by the Universities Act No. 16 of 1978 as amended (hereinafter referred to as the said Act) and has the power to select students for admission to each Higher Educational Institution in terms of Section 15(vii) of the said Act. The Petitioner gained admission to the MBB.S. Degree Programme for the academic year 2008/2009 at the Faculty of Medicine of the 2nd Respondent whilst the 4th Respondent gained admission to the M.B.B.S. Degree Programme for the same academic year at the Faculty of Medicine of the 3rd Respondent.
Learned Presidents Counsel submitted that on 31st July 2009, the date on which the Petitioner registered at the 2nd Respondent University, she submitted an appeal to the 1st Respondent Commission seeking a transfer to the Medical Faculty of the 3rd Respondent University. It is not in dispute that the Petitioner received an acknowledgement from the 1st Respondent Commission dated 8th August 2009, marked P4, stating that an appeal for an inter-University transfer would depend on the availability of vacancies and the order of the Z score and that the Petitioner should continue her studies at the University which had been already assigned until the formal letter of transfer is sent by the 1st Respondent Commission. Learned Presidents Counsel urged that at the Orientation Programme held on 24th August 2009, the Petitioner met another student who informed that her twin sister who got admission to the Faculty of Medicine of the 3rd Respondent University had made an application for a transfer to the Faculty of Medicine of the 2nd Respondent University. The said twin sister is the 4th Respondent in this application.
Learned State Counsel did not contest the reasons contained in the appeal letters of both the Petitioner and the 4th Respondent, marked P3 and P7 respectively. Thus, the only question to be considered by the Court is whether in the circumstances referred to in the two appeal letters, the inter-University transfers have to be permitted or not.
The admission Handbook of the 1st Respondent Commission marked P2b spells out the admission procedure. The following Clauses may become relevant for consideration by Court.
Clause 11.3 - The successful candidates will be informed of their course of study and the University to which they have been selected. If they accept the offer, they should register with the University concerned when called upon to do so within the time period stipulated by the UGC.
Clause 12a - Vacancies due to no registration of students selected under the merit quota, will be filled on an all island merit basis.
Clause 12b “ Vacancies due on no registration of students selected under the District quota, will be filled on a district merit basis. Vacancies in a particular district will be filled with students from the same district.
Thus, it could be seen that once the vacancies are filled in the aforesaid manner, the assignment of students to the Universities comes to an end. However, in terms of Clause 14.1 , any student who wishes to get an inter-University transfer may make an appeal to the Appeals Committee appointed by the 1st Respondent Commission in terms of Clause 15. Such an appeal may be entertained by the Appeals Committee subject to certain conditions laid down in the said Clause.
The Learned State Counsel was unable to refer to any statutory provision under the said Act which empowers the 1st Respondent Commission to appoint an Appeals Committee. Thus, a further issue arises as to whether the creation of an Appeals Committee was intra vires, the powers of the 1st Respondent as contained in Section 15 of the said Act.
Learned Presidents Counsel contended that the Petitioner would be at a severe disadvantage by reason of the inordinate delay in effecting her transfer, in as much as, the academic programmes at the Faculty of Medicine of the 3rd Respondent University has commenced. The only contention of the learned State Counsel was that if a vacancy occurs in the 3rd Respondent University, the said vacancy has to be filled by C. Raguraj (Index No. 9372741) whose Z Score was higher than that of the Petitioner. The Court is at a loss to understand the basis on which C. Raguraj with a Z Score of 2.3311 has been assigned to the University of Peradeniya by the Appeals Committee. The Court is of the view that the requests made by the Petitioner and the 4th Respondent by the documents marked P3 and P7 respectively, being fair and reasonable, would not cause any hardship or prejudice to the students already selected to follow a course of study in Medicine. The question of œavailability of vacancy? to accommodate the Petitioner as alleged in P4 too does not arise.
In the totality of the foregoing circumstances, the Court declares that the Fundamental Rights guaranteed to the Petitioner by Article 12(1) have been violated by the 1st Respondent by its failure to effect the inter-University transfer. Having carefully considered that contents of P3 and P7 and the hardships caused to the Petitioner and the 4th Respondent, acting in terms of Article 126(4) of the Constitution, this Court makes the following directions :
a. The 1st Respondent is forthwith directed to transfer the 4th Respondent to the Faculty of Medicine of the 2nd Respondent University for its M.B.B.S. Degree Programme for the academic year 2008/2009; and
b. The 1st Respondent is forthwith directed to transfer the Petitioner to the Faculty of Medicine of the 3rd Respondent University for its M.B.B.S. Degree Programme for the academic year 2008/2009.
The aforesaid Orders are personal to the Petitioner and the 4th Respondent and would not create a precedent to any inter-University transfers that may be effected by the 1st Respondent Commission in the future.