Kerala High Court
The Manager vs The Kerala University on 28 August, 2009
Author: T.R.Ramachandran Nair
Bench: T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 2643 of 2009(M)
1. THE MANAGER, MALANKARA SYRIAN CATHOLIC
... Petitioner
2. REV.FR.M.G.MATHEW,LECUTRER (SELECTION
3. DR.GEORGE T.JOHN,LECURER (SELECTION
4. REV.SR.DR.MERCYKUTTY.A.LECTURER
Vs
1. THE KERALA UNIVERSITY,THIRUVANANTHAPURAM
... Respondent
2. DR.A.JAYAKRISHNAN, THE VICE CHANCELLOR,
3. SRI.P.A.HASHIM, REGISTRAR, KERALA,
4. SRI.CYRIL JOHNSON, THE CHAIRMAN,
For Petitioner :SRI.SANTHOSH MATHEW
For Respondent :SRI.V.SAJITH KUMAR, SC.
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :28/08/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.2643 of 2009-M
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Dated this the 28th day of August, 2009.
JUDGMENT
In this writ petition, the petitioners are aggrieved by the denial of approval of appointment to the post of Principals in three colleges, viz. Mar Ivanios College, Thiruvananthapuram, St. Johns College, Anchal and Mar Theophilus Training College, Thiruvananthapuram, which are managed by the first petitioner. Essentially the question involved is regarding the minority rights of the first petitioner for appointment of Principals of their choice in these three institutions managed by them. Essential facts for the disposal of the writ petition are the following:
2. The first petitioner is the manager of three colleges. It is known as Malankara Cyrian Catholic Colleges Association of the Major Archdiocese of Thiruvananthapuram. These institutions, according to the petitioner, are aided minority institutions. They are affiliated to the Kerala University
3. In the year 2000 one Rev. Dr. Raju Thomas Kattukallil, Lecturer (Selection Grade) in Malayalam was appointed as Principal of St. John's College, Anchal which was approved by the University as per Ext.P2. As per Ext.P3, one Rev. Father Daniel Kuzhithadathil, Lecturer (Selection wpc 2643/2009 2 Grade) in Syriac, was appointed as Principal of Mar Ivanios College, Thiruvananthapuram which was approved as per Ext.P4. Challenging this appointment, Dr. Rajan Varghese filed Appeal No.16/2000 before the University Appellate Tribunal, which was dismissed as per Ext.P7. The Tribunal followed the judgment of the Apex Court in Secretary, Malankara Syrian Catholic College v. T. Jose {(2007) 1 SCC 386}. By Ext.P8, the Secretary of the first petitioner appointed the second petitioner as the Principal of Mar Ivanios College, Thiruvananthapuram and by Ext.P9 he was also appointed as the Drawing and Disbursing Officer. Dr. Rajan Varghese challenged the above proceedings in W.P.(C) No.1878/2007 which was disposed of directing the Vice Chancellor to take a decision on his representation and Ext.P10 is the said judgment.
4. Ext.P11 is the order passed by the Vice Chancellor, whereby the management is treated as a minority one. Thereafter, the Vice Chancellor forwarded the proposal for approval of the second petitioner as Principal, before the Standing Committee of the Syndicate after ratifying the same.
The Syndicate by Ext.P12 resolved not to approve the appointment as the institution has not produced the certificate showing minority status from a competent authority.
5. Ext.P13 is the order by which the third petitioner was appointed as wpc 2643/2009 3 the Principal of St. John's College, Anchal and Ext.P14 is the order by which he was also appointed as the Drawing and Disbursing Officer. By Ext.P15, the 4th petitioner was appointed as the Principal, Mar Theophilus Training College, Thiruvananthapuram and by Ext.P16 he was also appointed as the Drawing and Disbursing Officer. The petitioners approached this court by filing W.P.(C) Nos.5300/08, 5334/08 and 5393/08 challenging Ext.P12 and for approving the appointment of third and fourth petitioners. After hearing parties, this court by Ext.P20 judgment, directed the University to take a fresh decision in the matter. It is pursuant to the direction issued by this court, that the Syndicate passed Ext.P28 order.
6. The stand taken by the petitioners, which was not accepted by the University is that the matter is covered in their favour by the decision of the Apex Court in Secretary, Malankara Syrian Catholic College's case {(2007) 1 SCC 386), as well as by the findings rendered by this court in Ext.P20 judgment. In fact, the University in Ext.P28, was of the view that the said decision is without adverting to the relevant statutory provision governing the grant of minority status to educational institutions as well as the dictum laid down by the Constitution Bench of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka {(2002) 8 SCC 481}. Placing reliance upon the National Commission for Minority Educational wpc 2643/2009 4 Institutions Act, 2006, they have taken the view that the Malankara Syrian Catholic Institutions have not obtained a declaration to the effect that they are having the minority status. The Direct Payment agreement has also not been considered in the said decision. Lastly, it was held that the orders show that they have made appointments to the post of Principal and in case of such appointments by direct recruitment, the management is bound to issue public notice and to follow selection procedure in accordance with University Statutes and Ordinance. One of the objections raised is that the appointment orders are issued by the Secretary who is not competent to make appointments in the institutions unless he is appointed as the Manager.
7. Heard Shri Santhosh Mathew, learned counsel for the petitioners and Shri V. Sajithkumar, learned Standing Counsel for the University.
8. Learned counsel for the petitioners mainly contended that the first petitioner association which has established the minority institutions, is entitled for the benefits of Article 30(1) of the Constitution of India and this fact has already been found in their favour by the decision of the Apex Court in Secretary, Malankara Syrian Catholic College's case {(2007) 1 SCC 386}, in the matter of approval to the post of Principal itself. The University is a party to the said decision. Therefore, the issue is not open wpc 2643/2009 5 for any doubt at all, as the dictum laid down in the judgment binds the University. It is further pointed out that this court in Ext.P20, has taken the view that when the minority status has already been accepted by the Apex Court, it is not necessary to get a declaration on every occasion when it comes up for consideration. The said finding rendered by this court in Ext.P20 judgment has become final. Learned counsel also relied upon the orders of appointment which have been approved from time to time by the University, made on similar lines. At no point of time the University had sought for a declaration of minority status from any competent authority. It is further pointed out that the insistence for the production of a declaration is also not justified in the light of the decision of a Division Bench of this court in St. Berkman's College, Changanacherry and others v. Principal Secretary to Government, Higher Education Department and others (2009 (2) KHC 41).
9. In the light of the contentions raised by the parties, it is necessary to consider the dictum laid down in Secretary, Malankara Syrian Catholic College's case {(2007) 1 SCC 386), in respect of the first petitioner association itself.
10. The decision of a Division Bench of this court in Rev. Fr. Daniel Kuzhithadathil v. Jose (2003 (2) KLT 858) was reversed in the said wpc 2643/2009 6 decision by the Apex Court. Therein, the facts show that the petitioner association is one registered under the Kerala Literary, Scientific and Charitable Societies Registration Act, 1955 and has established several private colleges in this State. A vacancy to the post of Principal arose on 31.3.2000 and the management appointed one Rev. Fr. Daniel Kuzhithakathil to fill up the said vacancy which was challenged by one Dr. Varghese M. Mathunny. The question that arose is whether Section 57(3) of the Kerala University Act violates Article 30(1) of the Constitution of India and the question as to the extent to which, the State can regulate the rights of the minorities to administer their educational institutions, when such institutions receive aid from the State, was also considered. All the important decisions including the decision of the Apex Court in T.M.A. Pai Foundation's case {(2002) 8 SCC 481} have been discussed in detail in the judgment. In para 19 the legal principles relating to establishment and administration of educational institutions by minorities have been summarized. It was held thus:
"The general principles relating to establishment and administration of educational institution by minorities may be summarised thus:
(i) The right of minorities to establish and administer educational institutions of their choice comprise the following rights:
wpc 2643/2009 7
(a) to choose its governing body in whom the founders of the institution have faith and confidence to conduct and manage the affairs of the institution;
(b) to appoint teaching staff (teachers/lecturers and Headmasters/Principals) as also non-teaching staff, and to take action if there is dereliction of duty on the part of any of its employees;
) to admit eligible students of their choice and to set up a reasonable fee structure;
(d) to use its properties and assets for the benefit of the institution.
(ii) The right conferred on minorities under Article 30 is only to ensure equality with the majority and no intended to place the minorities in a more advantageous position vis-a-vis the majority. There is no reverse discrimination in favour of minorities. The general laws of the land relating to national interest, national security, social welfare, public order, morality, health, sanitation, taxation, etc. applicable to all will equally apply to minority institutions also.
(iii) The right to establish and administer educational institutions is not absolute. Nor does it include the right to maladminister. There can be regulatory measures for ensuring educational character and standards and maintaining academic excellence. There can be checks on administration as are necessary to ensure that the administration is efficient and sound, so as to serve the academic needs of the institution. Regulations made by the State concerning generally the welfare wpc 2643/2009 8 of students and teachers, regulations laying down eligibility criteria and qualifications for appointment, as also conditions of service of employees (both teaching and non-teaching), regulations to prevent exploitation or oppression of employees, and regulations prescribing syllabus and curriculum of study fall under this category. Such regulations do not in any manner interfere with the right under Article 30(1).
(iv) Subject to the eligibility conditions/qualifications prescribed by the State being met, the unaided minority educational institutions will have the freedom to appoint teachers/lecturers by adopting any rational procedure of selection.
(v) Extension of aid by the State does not alter the nature and character of the minority educational institution. Conditions can be imposed by the State to ensure proper utilisation of the aid, without however diluting or abridging the right under Article 30(1)."
In para 20 it was held that the State can regulate the service conditions of the employees of the minority educational institutions to ensure quality of education. Consequently, any law intended to regulate the service conditions of employees of educational institutions will apply to minority institutions also, provided that such law does not interfere with the overall administrative control of the management over the staff. But it was made wpc 2643/2009 9 clear in para 21, by following the judgment in T.M.A. Pai Foundation's case (supra), that "but if any such regulations interfere with the overall administrative control by the management over the staff, or abridges/dilutes, in any other manner, the right to establish and administer educational institutions, such regulations, to that extent, will be inapplicable to minority institutions."
11. The second question was answered in para 22 onwards and after referring to various decisions of the Apex Court, viz. State of Kerala v. Very Rev. Mother Provincial {(1970) 2 SCC 41}, N.Ammad v. Manager, Emjay High School {(1998) 6 SCC 674), Board of Secondary Education and Teachers Training v. Jt. Director of Public Instructions {(1998) 8 SCC 555} and a Full Bench decision of this court in Aldo Maria Patroni v. E.C. Kesavan (AIR 1965 Ker. 75), it was held thus in para 27:
"27. It is thus clear that the freedom to choose the person to be appointed as Principal has always been recognised as a vital facet of the right to administer the educational institution. This has not been, in any way, diluted or altered by T.M.A. Pai's case {(2002) 8 SCC 481}. Having regard to the key role played by the Principal in the management and administration of the educational institution, there can be no doubt that the right to choose the Principal is an important part of the right of administration and even if the institution is aided, there can be no interference with the said right. The fact that the post wpc 2643/2009 10 of the Principal/Headmaster is also covered by State aid will make no difference."
Finally, in para 28 the contention that the protection extended under Article 30(1) of the Constitution of India cannot be used against a member of the teaching staff who belongs to the same minority community, was considered. It was held thus:
"But this contention ignores the position that the right of the minority to select a Principal of its choice is with reference to the assessment of the person's outlook and philosophy and ability to implement its objects. The management is entitled to appoint the person, who according to them is most suited to head the institution, provided he possesses the qualifications prescribed for the posts. The career advancement prospects of the teaching staff, even those belonging to the same community, should have to yield to the right of the management under Article 30(1) to establish and administer educational institutions."
The Apex Court was of the view that Section 57(3) cannot apply to minority educational institutions if they are aided and the conclusion is rested in para 29 in the following terms:
"Section 57(3) of the Act provides that the post of Principal when filled by promotion is to be made on the basis of seniority-cum- fitness. Section 57(3) trammels the right of the management to take note of merit of the candidate or the outlook and philosophy of the candidate which will determine whether he is supportive of the wpc 2643/2009 11 objects of the institution. Such a provision clearly interferes with the right of the minority management to have a person of their choice as head of the institution and thus violates Article 30(1). Section 57(3) of the Act cannot therefore apply to minority-cum-educational institutions even if they are aided."
12. This decision has been rendered in respect of the appointment of Principal in Mar Ivanios College which is administered by the first petitioner association and herein we are concerned with the appointment of second petitioner as Principal in a fresh vacancy. Can the University which is a party to the said decision, refuse to follow the dictum laid down by the Apex Court, is a moot point. It cannot. The University being a party to the said decision, cannot wriggle out of the same for more reasons than one. It is a decision inter-parties. Therefore, it cannot go beyond that. Apart from that, the decision was rendered by the University after evaluating wrongly the principles settled in T.M.A. Pai Foundation's case {(2002) 8 SCC
481), which renders Ext.P28, unsustainable. In Ext.P28 among the reasons in support of the rejection, the respondent has chosen to quote certain paragraphs of the judgment in T.M.A. Pai Foundation's case (supra) which have already been discussed and analysed by the Apex Court in Secretary, Malankara Syrian Catholic College's case {(2007) 1 SCC 386).
13. When the Apex Court has declared that Section 57(3) cannot wpc 2643/2009 12 apply to minority educational institutions even if they are aided, the University cannot take a different stand that the said section does not impose any restriction on the administrative control by the management over the staff. In fact, in Ext.P28 they have gone to the extent of saying that the decision in Secretary, Malankara Syrian Catholic College's case {(2007) 1 SCC 386} is without adverting to the relevant statutory provisions governing grant of minority status to educational institutions as well as the dictum laid down by the Constitution Bench of the Apex Court. Justification is sought in the promulgation of National Commission for Minority Educational Institutions Act, 2006. In fact, that point is now covered against them in the light of the decision of the Division Bench in St. Berkman's College's Case (2009 (2) KHC 41) and Ext.P20 judgment wherein also the University is a party. The plea rested upon Direct Payment Agreement is also not sustainable in the light of the dictum laid down in Malankara Syrian Catholic College's case (supra) itself. The question whether in respect of any aided institutions, Section 57(3) could be imposed, was one of the questions decided in the said case and answered against the contesting parties.
14. The issue therefore whether the first petitioner is a minority institution, cannot be now a matter of dispute at the hands of the University wpc 2643/2009 13 at all. In Ext.P11, the Vice Chancellor was of the view that in view of the fact that the University has to obey the dictum laid down by the Apex Court, and as the management is a minority institution, the management of Malankara Syrian Catholic College need not follow Section 57(3) of the Act and therefore it follows that the appointment of the second petitioner as Principal has to be approved. It is thereafter that the Syndicate has chosen to reject it as per Ext.P28. Practically, in the light of the decision of the Apex Court in Malankara Syrian Catholic College's case (supra), the issue is not at all open for doubt at the hands of the Syndicate.
15. Learned counsel appearing for the University submitted that in the light of the decision of the Apex Court in T.M.A. Pai's case {(2002) 8 SCC 481} the issue again crops up for decision and the matter is not concluded. As I have already found, the Apex Court in Malankara Syrian Catholic College's case (supra), has considered all important decisions including the decision in T.M.A. Pai's case {(2002) 8 SCC 481}. In Ext.P28 paragraphs 141 and 161 of the said judgment have been referred to and accordingly the stand taken is that Section 57 does not impose any restriction on the administrative control by the management over the staff. That the observations in paragraphs 141 and 161 of the said judgment do wpc 2643/2009 14 not help the University, is clear from paragraph 17 of the judgment in Malankara Syrian Catholic College's case (supra), wherein the Apex Court was of the view that "In T.M.A. Pai's case {(2002) 8 SCC 481} this Court made it clear that a minority institution does not cease to be so, merely on receipt of aid from the State or its agencies. In other words, receipt of aid does not alter the nature or character of the minority educational institution receiving aid." The Apex Court was of the view that the Division Bench of this Court wrongly construed T.M.A. Pai's case (supra) and concluded that acceptance of aid by a minority institution takes away its right to claim immunity from interference and therefore the State can lay down any regulation governing the conditions of service of employees of aided minority institutions ignoring the constitutional guarantee under Article 30(1). After referring to paragraphs 72 and 73 of the said judgment, it was held that the "position of minority educational institutions securing aid from the State or its agencies was considered in paragraphs 80 to 155, wherein it was clearly held that receipt of State aid does not annihilate the right guaranteed to minorities to establish and administer educational institutions of their choice under Article 30(1)." The reliance placed on the said paragraph by the learned Standing Counsel for the University cannot hold good. In fact, the learned Standing Counsel wpc 2643/2009 15 further relied upon the decision of the Supreme Court in A.P.C.M.E. Society v. Govt. of A.P. (AIR 1986 1490) wherein my attention is invited to para 8 of the said judgment and the findings rendered therein to the following effect:
"The fallacy of the argument in so far as the instant case is concerned lies in thinking that neither the Government nor the University has the right to go behind the claim that the institution is a minority institution and to investigate and satisfy itself whether the claim is well founded or ill founded. The Government, the University and ultimately the court have the undoubted right to pierce the 'minority veil' with due apologies to the Corporate Lawyers and discover whether there is lurking behind it no minority at all and in any case, no minority institution. The object of Art.30(1) is not to allow bogies to be raised by pretenders but to give the minorities 'a sense of security and a feeling of confidence' not merely by guaranteeing the right to profess, practise and propagate religion to religious minorities and the right to conserve their language, script and culture to linguistic minorities, but also to enable all minorities, religious or linguistic, to establish and administer educational institutions of their choice. These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms."
In fact, in all the decisions the test laid down in the decision of the Apex Court in T.M.A. Pai's case (supra) has been applied and as noted already, wpc 2643/2009 16 the application of the said test in Malankara Syrian Catholic College's case (supra), clearly establishes the case pleaded by the petitioners and therefore the reliance placed on the said decision cannot be of any help to the University.
16. Learned Standing Counsel for the University then relied upon a Full Bench decision of this court in Kurian Lizy v. State of Kerala (2006 (4) KLT 264 (FB)) and the observations made in para 8 thereof, particularly. Therein, the Full Bench was of the view that all minority educational institutions which propose to select the best person to the post of Headmaster/Principal of a School or College, as the case may be, ignoring seniority in the feeder category or ignoring the available teachers, should frame and publish regulations or bye-laws, containing a transparent procedure, governing such selection. The publication can be made in the Notice Board of the educational institution concerned and a copy of it should be available in school/college library for reference. When superseding a senior qualified member of the minority community the reasons thereof should be clear from the records. It is thus contended that in the absence of regulation also, the promotion made by the first petitioner cannot be sustained.
17. Learned counsel for the petitioners submitted that in the light of wpc 2643/2009 17 paragraphs 23 and 24 of Malankara Syrian Catholic College's case (supra), the above observations cannot hold good. Reliance is also placed on the decision of the Apex Court in N. Ammad's case {(1998) 6 SCC 674}. The said decision relates to appointment of Headmaster in a minority institution. Therein, the Apex Court was of the view that it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment and there cannot be any restriction by any legislative act or executive rule except for fixing the qualifications and conditions of service for the post. It was held thus in paragraphs 24, 26, 27 and 28:
"The management's right to choose a qualified person as the Headmaster of the school is well insulated by the protective cover of Article 30(1) of the Constitution and it cannot be chiselled out through any legislative act or executive rule except for fixing up the qualifications and conditions of service for the post. Any such statutory or executive fiat would be violative of the fundamental right, enshrined in the aforesaid article and would hence be void. The management of a minority school is free to find out a qualified person either from the staff of the same school or from outside to fill up the vacancy. If management of the school is not given very wide freedom to choose the personnel for holding such a key post, subject of course to the restrictions regarding qualifications to be prescribed by the State, the right to administer the school would wpc 2643/2009 18 get much diminished. Hence, it is for the management of the minority educational institution to choose the modality for selecting the qualified persons for appointment."
Therefore, the management of a minority institution is free to find out a qualified person and has got very wide freedom to choose the personnel for holding such post. The only restriction is regarding the qualification. Therefore, the absence of a regulation framed by the management itself will not defeat their rights to make the appointment, as contended by the learned Standing Counsel for the University. Further, in para 23 of Malankara Syrian Catholic College's case (supra), the Apex Court considered an earlier decision, reported in State of Kerala v. Very Rev. Mother Provincial {(1970) 2 SCC417} wherein the findings of this court in Very Rev. Mother Provincial v. State of Kerala (1969 KLT 749) were affirmed. The Full Bench in the above decision held that "Therefore, so far as the post of principal is concerned, we think it should be left to the management to secure the services of the best person available. This, it seems to us, is of paramount importance, and the prospects of advancement of the staff must yield to it." It was made clear in the said para that "provision may, of course, be made to ensure that only proper persons are appointed to the post of principal, the qualifications necessary may be prescribed, and the mode wpc 2643/2009 19 of selection for the purpose of securing the best men may be laid down. But to go beyond that and place any further fetter on the choice would be an unreasonable interference with the right of management." In para 24 the Bench relied upon the earlier decision of the Apex Court in Ahmadabad St. Xavier's College Society v. State of Gujarat {(1974) 1 SCC 717) wherein it was held thus: "The right to choose the principal and to have the teaching conducted by teachers appointed by the management after an overall assessment of their outlook and philosophy is perhaps the most important facet of the right to administer an educational institution....So long as the persons chosen have the qualifications prescribed by the University, the choice must be left to the management. That is part of the fundamental right of the minorities to administer the educational institution established by them."
18. In that view of the matter, the contention that in the absence of regulations framed by the management, they cannot make the appointment also cannot be sustained. The other decisions cited are the Full Bench decisions of this court in Very Rev. Mother Provincial v. State of Kerala (1969 KLT 749 (FB)) and Benedict Mar Grigorios v. State of Kerala and others (1976 KLT 458 (FB). In the light of the decisions of the Apex Court in N. Ammad's case {(1998) 6 SCC 674} and Malankara Syrian wpc 2643/2009 20 Catholic College's case (supra), I am not discussing in detail the principle stated in the above judgments.
19. Then the further question is whether the management ought to have obtained a formal declaration of minority status before exercising the power to appoint the Principal. In fact, this issue is no longer of any doubt in the light of the decision of the Division Bench in St. Berkman's College's case (2009 (2) KHC 41) wherein the Bench partly reversed the decision of a learned Single Judge of this court in Manager, Assumption College and another v. State of Kerala and others (2008 (1) KLT 235).
20. The learned Single Judge in Assumption College's case (supra), held that in the absence of a formal declaration of minority status, the management is bound to comply with mandatory provisions contained in Section 59(3) of the Mahatma Gandhi University Act, which was not accepted by the Division Bench. The Division Bench referred to the findings contained in Ammad's case {(1998) 6 SCC 674} wherein it was held thus:
"Counsel on both sides conceded that there is no provision in the Act which enables the Government to declare a school as minority school. If so, a school which is otherwise a minority school would continue to be so whether Government declared it as such or not. wpc 2643/2009 21 Declaration by the Government is at best only a recognition of an existing fact."
In para 7 of the said judgment, it was held that "Going by the Educational Agencies and the Colleges mentioned above, we are, prima facie, satisfied that they are minority educational institutions entitled to get protection under Article 30(1) of the Constitution of India." In that view of the matter, the insistence by the University that the petitioner should obtain a declaration under the Central Act, viz. National Commission for Minority Educational Institutions Act, 2004 cannot be sustained. In fact, this issue has been answered against the University by this court in Ext.P20 itself. After referring to the findings in Malankara Syrian Catholic College's case {2007) 1 SCC 386}, that the Malankara Syrian Catholic College Association of Archdiocese at Trivandrum is a society registered under the Kerala Literary, Scientific and Charitable Societies Registration Act, 1955 and that it is a minority organisation and an educational agency, it was held thus in para 12:
"When a particular status or state of things is established before a court of law, particularly before the Supreme Court, and a decision is rendered on that basis, that particular status or state of things need not be proved on every occasion when it comes up for consideration before a Court, Tribunal or other Authority. It is wpc 2643/2009 22 sufficient if such decision, in which the status or state of things has been declared or established, is produced before the Court, Tribunal or other Authority."
After holding so, this court directed the University to consider the matter afresh in the light of th above Apex Court decision.
21. It is still un-understandable as to how, being bound by the above judgment, the University can take a contrary stand in the present proceedings, Ext.P28. They have not challenged Ext.P20 in an appeal and therefore the findings have become final. Therefore, the attempt now made in Ext.P28 to rake up the controversy afresh, cannot be accepted at all. The principles of res judicata will also squarely apply.
22. In that view of the matter, the reliance placed on the provisions of the National Commission for Minority Educational Institutions Act, 2006 also cannot be sustained. The petitioners are fully entitled to rely upon the judgment in Malankara Syrian Catholic College's case {2007) 1 SCC 386}. Accordingly, there will be a declaration that they are entitled to appoint the Principals in exercise of their right under Article 30(1) of the Constitution of India and approval of appointment cannot be refused.
23. The one remaining defect pointed out in Ext.P28 is that the appointment orders are signed by the Secretary and not by the Manager. In the writ petition itself, the petitioners have pointed out that in the year 2000 wpc 2643/2009 23 Rev. Dr. Raju Thomas Kattukallil was appointed as Principal by Ext.P1 order issued by the Secretary who is a delegate of the Manager. Ext.P2 shows that the same was approved by the University. Ext.P3 is the appointment order issued by the Secretary of the Association of the by appointing Rev. Fr. Daniel Kuzhithakathil as Principal with effect from 6.6.2000 which was approved by Ext.P4. It is the contention of the petitioner that even though the first petitioner is the Manager, the powers of the Manager had been delegated to the Secretary and the said power is being exercised by the Secretary. Exts.P5 and P6 are produced to show that the appointment of the Secretary is being intimated from time to time to the University also.
24. One of the contentions raised by the learned Standing Counsel for the University is that the management should have resorted to direct recruitment and since the said procedure is not followed, no approval can be granted. In Ext.P28 and in the counter affidavit, this contention is reiterated. It is pointed out that in the orders of appointment the word 'promotion' is not there and hence it can be termed only as a direct recruitment. The procedure for direct recruitment is separately specified in Section 57(2) of the Act.
25. The above contention also cannot be sustained. The appointment wpc 2643/2009 24 is not by way of direct recruitment at all. The Principals appointed by them are only working as Lecturer Selection Grade in the respective colleges and the only issue is whether they can be promoted as Principals in exercise of the right under Article 30(1) of the Constitution of India. It is in fact, in Ext.P22 itself they have made it clear that the appointment is by selection from among the qualified teachers. Merely because the word promotion is struck off, it does not become an appointment by direct recruitment.
26. In Ground C of the writ petition it is also submitted that since a technical stand has been taken, the first petitioner is ready to issue a revised appointment order in the prescribed format signed by the Manager himself so that the issue can be resolved since the functioning of the colleges are adversely affected due to the delay in granting approval.
27. In the light of the readiness expressed by the petitioner with regard to the said issue, the same can be resolved by directing the first petitioner to produce revised appointment orders in the prescribed format signed by the Manager himself and on production of the same, the University will approve the appointments.
28. Therefore, the writ petition is allowed. The first petitioner is allowed to produce revised appointment/promotion orders signed by the Manager, to the first respondent and on receipt of the same, orders of wpc 2643/2009 25 approval will be issued within a further period of two months. The interim order passed by this court on 30.1.2009 will continue till orders granting approval are issued. No costs.
(T.R. Ramachandran Nair, Judge.) kav/