Dona Chathurika Silva Vs. Hettiarachchi, Secretary – Ministry of Education & Others (18.06.2020)
Dona Chathurika Silva Vs. Hettiarachchi, Secretary – Ministry of Education & Others [Case No: SC/FR/222/2018 & 223/18 Decided on 18.06.2020] Download
By Priyantha Jayawardena, PC, J, with Vijith K. Malalgoda, PC, J & E.A.G.R. Amarasekera, J agreeing.
Admission of Children of Judicial officers to Grade 1 of State Schools; judicial officers not included in various categories; legitimate expectation due to practice adopted by the ministry of education where no special category is provided for; independence of the judiciary; Articles 27(2), 111c, 111M(a), 170b of the Constitution; Directive Principles of State policy; State Policy of equal access to education; natural justice.
Two cases with same facts, decided together. The application of the Petitioner in the first matter, a judicial officer, to admit her child to Grade 1 of Vishaka Vidyalaya had been refused. Since no special category laid down in the circular, a practice had been adopted to apply through Judicial Service Association. Petitioner did not attend a meeting called by the Minister and she found children of other judges who participated in the said meeting had been admitted to preferred schools. Petitioner claimed the respondents have violated the Fundamental Rights of the petitioner and her child, guaranteed by Article 12(1) of the Constitution.
In the other matter, the child of a junior judicial officer had been admitted to Petitioner’s desired school, which she claimed violated her fundamental right to equality.
[Petitioners contended that ] in view of the past practice pertaining to the admission of the children of Judicial Officers to State Schools, the petitioners entertained a legitimate expectation to admit their children to a school of their preference.
[T]he learned Additional Solicitor General cited the case of Hughes v Department of Health and Social Security (1985) AC 776 HL where Lord Diplock held that:
“Administrative policies may change with changing circumstances, including changes in the political complexion of governments. The liberty to make such changes is something that is inherent in our form of constitutional government.”
He further cited the judgment in Ginigathgala Mohandiramlage Nimalsiri v Colonel P.P.J.Fernando (SC/FR Application No. 256/2010, SC minutes 17th September, 2015) which held that: “Where an expectation is founded on a policy and later a relevant change of policy is notified, the expectation founded on the previous policy cannot be considered as legitimate.”
[T]he cases cited by the learned Additional Solicitor General in support of his contentions are not applicable to the instant applications.
Ministry of Education had no power or authority to convene such a meeting. Moreover, convening the meeting with Judicial Officers to admit their children to schools is illegal and arbitrary to the said Circular.
In order to seek redress under the doctrine of legitimate expectation, a person should have a legitimate expectation which was based on a promise, practice or a policy by the authority that is said to be bound to fulfil the expectation. However, such a practice need not be published or incorporated in a written document.
An expectation reasonably entertained by a person is considered legitimate if the person has justifiable reasons to form such an expectation. However, the applicability of the said doctrine is based on the facts and circumstances of each case.
In Ginigathgala Mohandiramlage Nimalsiri v. Colonel P.P.J. Fernando (SC/FR Application No. 256/2010, SC Minutes 17th of September 2015) it was held that the doctrine of legitimate expectation could arise by “believing an undertaking or promise given by a public official or by taking into consideration of established practices of an authority”.
[T]he expectation formed by the petitioners is within the powers of the decision-maker, and the said practice is not contrary to the Circular applicable for the admission of children to State Schools.
In R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No. 2)  61,  1 AC 465 it was held that:
“The legitimate expectation may entail either (1) no more than that the decisionmaker will take his existing policy into account, or (2) an obligation on the decision-maker to consult those affected before changing his policy, or (3) an obligation for the decision-maker to confer a substantive benefit on an identified person or group. Those categories represent an ascending hierarchy which must be reflected in the precision, clarity and irrevocability of any alleged representation or promise on which the expectation is said to be based. To rely successfully on a substantive expectation a claimant must be able to show that the promise was unambiguous, clear and devoid of relevant qualification, that it was made in favour of an individual or small group of persons affected; that it was reasonable for the claimant to rely on it; and that he did rely on it generally, but not invariably, to his detriment”.
[T]he said practice was precise and filled a void in the admission criterion stipulated in the Circular.
When a public authority intends to deviate from an established practice, which has been in operation for a considerable period giving rise to a legitimate expectation, it is essential that the persons affected by such deviation are given advance notice of the proposed change except in situations where the authority is unable to continue with the relevant practice due to circumstances which warrant such a deviation.
in the case of Dayaratne v. Minister of Health and Indigenous Medicine (1999) 1 SLR 393 where it was held that “when a change in policy is likely to frustrate the legitimate expectations of individuals, they must be given an opportunity of stating why the change of policy should not affect them unfavourably”.
Moreover, the need to give notice to affected persons from a change in practice or policy was also discussed in Hughes v Department of Health and Social Security (1985) AC 776 HL, where Lord Diplock stated that:
“When a change in administrative policy takes place and is communicated in a departmental Circular to, among others, those employees in the category whose age at which they would be compulsorily retired was stated in a previous Circular to be a higher age than 60 years, any reasonable expectations that may have been aroused in them by any previous Circular are destroyed and are replaced by such other reasonable expectations as to the earliest date at which they can be compelled to retire if the administrative policy announced in the new Circular is applied to them.”
[I]f a practice is introduced and followed to fill a lacuna in a particular Circular or criterion which led to a legitimate expectation, such practice shall not be changed without introducing an alternative criterion to fill such a lacuna unless there are compelling reasons to deviate from such a practice.
[C]hanging the past practice without giving prior notice and introducing the said new criterion for the year 2017 violated the legitimate expectation of the petitioners.
In the case of Watte Gedera Wijebanda v Conservator General of Forests and Other (2009) 1 SLR 337, it was held that although Directive Principles are not specifically enforceable against the State, they provide important guidance and direction to the various organs of State in the enactment of laws and in carrying out the functions of good governance.
An underlying principle of natural justice, upon which the principle of legitimate expectation is based, is the right to be heard.
[I]n Dayaratne v. Minister of Health and Indigenous Medicine (1999) 1 SLR 393 where it was held that; “when a change of policy is likely to frustrate the legitimate expectations of individuals, they must be given an opportunity of stating why the change of policy should not affect them unfavourably. Such procedural rights have an important bearing on the protection afforded by Article 12 of the Constitution against unequal treatments arbitrarily, invidiously, irrationally, or otherwise unreasonably dealt out by the Executive”.
[Held that Petitioners FRs violated. Reliefs granted]
*Note: Editor’s interpolations in quotes are within square brackets. The paragraphs quoted may not be in the same sequence as in the judgement.