By Jayampathy Wickramaratne –

Dr Jayampathy Wickramaratne PC

It is school admission time. Applications for admission to Grade 1 in government schools have been called.

Admissions to government schools, especially to Grade 1, result in a spate of fundamental rights applications in the Supreme Court every year. The procedure is complex with children being admitted under different categories that get different weightages. The categories listed in the circular for admissions during the last several years had the following weightages: children of residents in close proximity (fifty per cent), children of past pupils (twenty-five per cent), siblings of children at school (fifteen per cent), children of persons belonging to the staff in an institution directly involved in school education (five per cent), children of officers transferred on the exigency of government service or on annual transfers (four per cent) and children of persons arriving after living abroad with the child (one per cent). The circular includes an intricate scheme of marking. While the classification and marking scheme in the annual circular is not known to have been challenged, the application of the circular has been the main ground of challenge.

Some time back, two well-known schools in Kandy and Ambalangoda were notorious for violating the circular. Each year, there were many fundamental rights applications in the Supreme Court in respect of these schools. Counsel had only to mention the name of the school and leave to proceed would be granted without much judicial  time wasted. Most of the applications were settled with the school authorities agreeing to admit the children concerned. How many other children unjustly denied admission but who did not have the means to approach the Supreme Court would have suffered in silence?

Unjust “clubbing of schools”

In the “children of residents in close proximity” category, a maximum of fifty marks is awarded for establishing the residence of the applicant according to an elaborate scheme of marking.  The maximum is awarded if the applicant’s place of residence is proved and there are no other government schools with primary sections located closer to the place of residence than the school applied for. In the event there are other government schools with primary sections for the admission of the child that are closer to the place of residence than the school applied for, marks are deducted at the rate of five marks per such school from the maximum of fifty marks. For the purposes of the circular, “other government primary schools that the child could be admitted” means schools having the medium of instruction the child has applied for, schools to which children of the gender of the applicant child are admitted (boys”/girls’ school or a mixed school as appropriate) and schools that admit ten per cent or more children of the religion to which the child belongs.

In the writer’s view, “clubbing” all schools, irrespective of their grading, for the purpose of deducting marks is arbitrary and violates the fundamental right to equal protection of the law guaranteed by Article 12(1) of the Constitution. Government schools in Sri Lanka are classified according to the level of education offered. Grade 1AB schools are those that have classes up to GCE Advanced Level in arts, commerce and science streams. Grade 1C schools have classes up to GCE Advanced Level in arts and commerce but not science. Grade 2 schools have classes only up to GCE Ordinary Level, while Grade 3 schools have classes only up to grade 5 or grade 8.

Thus, while all government schools admit students at Grade 1, not all offer education up to GCE Advanced Level; some offer education only up to GCE Ordinary Level. Only grade 1AB schools have the Advanced Level Science Stream. Ideally, if the application is to a Grade 1AB school, only Grade 1 AB schools closer should be taken into account. Deduction of marks for schools with lesser facilities is arbitrary and violates equal protection.

Let us take the example of a boy living in the Gothatuwa New Town who wishes to be admitted to Ananda, Nalanda or Royal, which are Grade 1 AB schools. Even counting schools in Grades 1C, 2 and 3 only within a circle drawn with Gothatuwa as the centre, the fifty marks will be exhausted. Towards Borella there is Sirihada Vidyalaya, Janadhipathi Vidyalaya, Hewavitharana MV and Siri Perakumba MV, in the Rajagiriya area and SWRD Bandaranaike Vidyalaya Susamyavardhana MV in Borella—30 marks deducted for them only. Added to this, there are many similar schools towards Kolonnawa and Malabe, and the boy’s fifty marks maximum is over. He has no chance of entering the much sought-after schools. Those from less affluent families would have no option to enter a school of a lower grade in the area, while others would find ‘other ways’ of making it, including renting out apartments near prestigious schools, using political connections and even using financial resources.

Naturally, parents wish to admit their children to good schools at the Grade 1 level itself so that children do not have to change schools later.

The writer submits that when a child applies for admission to a school under the “close proximity” category, marks should be deducted only for closer schools of the same grade. It is time that the constitutionality of the present policy is reviewed, preferably by way of a fundamental rights application in the Supreme Court. Parents are reluctant to challenge the circular itself, hoping that their children will be selected. Even after their appeals are rejected, many go behind politicians or approach educational authorities. School authorities who know about the one-month period for filing fundamental rights applications keep on giving parents hope until the period lapses. Perhaps, teachers’ trade unions or others interested in the issue could file applications in the public interest and invite the Supreme Court to rule on it. 

Issues in computing the distance

Computing the distance from the residence of the child has led to controversy and there have been cases of manipulation both by applicants and authorities. 

Lyensa Fernando vs. Dissanayake, concerned the non-admission of the first petitioner to Yasodhara Balika Vidyalaya, Gampaha. One of the issues that arose was the deduction of marks for the existence of other schools in closer proximity. Marks had been deducted for four junior schools which were considered to be situated in closer proximity to the petitioner’s residence than Yasodhara Balik Vidyalaya.

The petitioners submitted that the Attanagalu Oya river, Palu Ela canal and a vast marshy land lie between their residence and Asgiriya Walpola Junior School and Siddhartha Junior School, two schools for which marks had been deducted. The applicable circular provided that a circle should be drawn using the main entrance of the residence of the applicant as the centre and the entrance to the school applied for as a point on the circumference of the circle to determine the proximity. Where there is a difficulty in accessing the school from the applicant’s residence due to natural barriers such as rivers, lagoons, marshy lands, forests, etc., marks should not be deducted for the existence of schools within the circle, notwithstanding the fact that such schools may be located in closer proximity than the school applied for. The petitioners pointed out that while the distance by road from their residence to Yashodara Devi Balika Maha Vidyalaya was 1.2 km, the distance to the two schools mentioned was 2.2 km and 1.7 km, respectively. The seventh respondent, the Principal of Yashodara Devi Balika Maha Vidyalaya, on the other hand, took up the position that what was relevant was the distance ‘as the crow flies’.

Justice Kodagoda J, with Justices Murdu Fernando and Thurairaja agreeing, took the view that the application or enforcement of a law should be for the purpose of achieving the governing objectives of such law. A law has to be enforced for the purpose for which it has been enacted, and not oblivious of the purpose for which it has been created or for a collateral or abusive purpose.

The learned Judge stated: “I am of the view that in order to give effect to the policy of the State, it would be necessary to take into consideration the ‘actual distance’ a child would have to travel to the relevant school either by road or by footpath, as opposed to the ‘direct aerial distance’. The fallacy as I see, in the submission made by learned Senior State Counsel is that, though a crow would actually fly in a direct line as he can and generally does so, since he flies above the surface of the earth, a child would have to necessarily travel by road or using a footpath, and not ‘fly’ to school. Thus, it would be rational to take into consideration the ‘actual distance by road’ as opposed to the ‘aerial distance’. Clause 7.1.5 [of the applicable Circular] recognises the possible use of a ‘Google Map’ and the ‘Survey General Department’s Map’ in instances where a difficulty arises in computing the distance. In fact, one advantage in using a ‘Google Map’ is that it facilitates the measuring of the ‘distance by road’ between two locations.”

In the circumstances, Justice Kodagoda held that the term ‘other schools situated more proximate to the residence’ in the applicable circular should be necessarily interpreted to mean ‘other schools situated more proximate to the residence, given the distance one would have to travel by road or recognised footpath generally used by the public’. The Court found that the fundamental right to equal protection had been infringed and made order that the child be admitted to Grade 3 of the school. Taking judicial notice of the fact that the petitioners would have spent a considerable sum of money to obtain relief and that the child had not received education from the school which she was entitled to received, the State was directed to pay the petitioners Rs. 500,000 as compensation.

Reducing the gap, the only answer

The long-term solution to the issue of school admissions is to bring all schools to the same standard, which is easier said than done. Various proposals ranging from having at least one Grade 1AB school in every electorate or Divisional Secretariat area, to making the “closest school the best school” have been mooted by successive governments but without any significant change. Sri Lanka is nowhere near the globally accepted goal of spending six per cent of the GDP on education. In 2017, Cuba spent 12.9% of its GDP on education while Somaliland spent 9.6%. In South Asia, Bhutan spent the highest percentage of GDP on education, 6.6%. Sri Lanka’s contribution was 2.8% doing better only than Bangladesh.