Kerala High Court
Rev. Fr. Daniel Kuzhithadathil vs Jose on 5 June, 2003
Equivalent citations: 2003(2)KLT858
Author: A.K. Basheer
Bench: A.K. Basheer
JUDGMENT Jawahar Lal Gupta, C.J.
1. Is Section 57(3) of the Kerala University Act, 1974 ultra vires Article 30 of the Constitution? This is the primary issue that arise for consideration in this set of six writ petitions. The broad facts on which there is a consensus among the counsel for the parties may be briefly noticed.
2. The post of Principal, Mar Ivanios College, Trivandrum was to become vacant on March 31, 2000 on the retirement of Dr. Antony Eapen. In anticipation, the Manager had issued an order dated March 27, 2000 by which Rev. Daniel Kuzhithadathil, who was working as Lecturer, was ordered to be given charge of the post of Principal. It was further directed that he would also act as the Drawing and Disbursing Officer. Feeling aggrieved by this order, Dr. Varghese M. Mathunni filed a petition viz. O.P. No. 10111 of 2000. In this petition Rev. Daniel Kuzhithadathil was impleaded as the 4th respondent. The matter was considered by a learned Single Judge. The Writ Petition was admitted. An interim order was passed that the 4th respondent shall not take charge of the office of the Principal.
3. On April 15, 2000, the Vice-Chancellor of the Kerala University approved the order of the appointment of Rev. Daniel Kuzhithadathil as Drawing and Disbursing Officer. At this stage Dr. P.V. Thomas filed a petition under Article 226 of the Constitution viz. O.P. No. 14337 of 2000. In this petition a challenge was also made to the order dated March 27, 2000 by which he was given charge of the office of principal. An interim order restraining Rev. Daniel Kuzhithadathil from functioning as Drawing and Disbursing Officer and discharging the duties of Principal was passed on May 24, 2000.
4. As the order dated March 27, 2000 had been completely stayed, the management issued an order appointing Mr. T. Jose, who was also working as Lecturer, to discharge the duties of the post of principal vide order dated May 25, 2000. This was intended to be an interim arrangement till the appointment was made on regular basis.
5. On June 5, 2000, the petition for the grant of interim stay, which had been filed in the O.P. No. 14337 of 2000, was finally decided by the learned Single Judge. It was disposed of with the direction that the management was free to make appointment to the post of Principal on regular basis. Just the next day, the management issued the order dated June 6, 2000 by which Rev. Daniel Kuzhithadathil was appointed as the Principal.
6. The action of the management in appointing Rev. Daniel Kuzhithadathil as the Principal was challenged by Mr. T. Jose before the Kerala University Appellate Tribunal. This appeal was heard and decided by the Tribunal vide order dated December 20, 2000. It was held that the appointment was made in violation of the provision contained in Section 57(3) of the Act. Thus, it was set aside. The Manager was directed to make appointment in accordance with relevant provisions.
7. The order dated December 20, 2000 passed by the University Appellate Tribunal was challenged by Rev. Daniel Kuzhithadathil by filing a petition under Article 226 of the Constitution. This is O.P. No 3015 of 2001. Even the management filed O.P. No. 3742 of 2001. A copy of the order dated December 20, 2000 has been produced as Ext. P1. The petitioners in those two cases allege that the provision contained in Section 57(3) is not in conformity with the provisions of Article 30. Thus, it is unconstitutional. Thus, they pray that it should not be made applicable to the institution as it has been established and is being run by a minority community.
8. In addition to the above, O.P. No. 10721 of 2001 was filed by Mr. T. Jose to challenge the observation in the order dated December 20, 2000 that Rev. Daniel Kuzhithadathil fulfilled the qualification for the post of Principal. His claim was that Rev. Daniel Kuzhithadathil was ineligible.
9. A perusal of the above facts shows that all the five petitions have been filed to make a claim regarding the respondent to the post of Principal of the College. All these cases have been posted together for hearing.
10. It is the claim of the petitioners in O.P. Nos. 3015 of 2001 and 3742 of 2001 that the College has been established and is being administered by a minority community. It is entitled to autonomy in the matter of administration. The matter of appointment to the post of Principal relates to the administration of the College. Thus the provision in Section 57(3) which lays down the method of appointment is ultra vires Article 30. Consequently, it cannot be made applicable to the Mar Evanios College, Trivandrum.
11. The claim as made on behalf of the petitioners in these two cases has been controverted by the counsel for the opposite parties. It has been inter alia contended that the College is receiving aid from the State. Thus, it is amenable to the jurisdiction of the Government or the University in so far as the conditions of service etc. are concerned. Firm reliance has been placed on the observations of their Lordships of the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka,(2002 (8) SCC 481).
12. Inevitably, the provision of Section 57(3) deserves to be noticed. It reads as under:
"57. Appointment of teachers in private colleges.- (1) Appointments to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit.
(2) Appointments of principal shall be made by the educational agency by promotion from among the teachers of the college or of all the colleges, as the case may be, or by direct recruitment.
(3) Where the appointment of Principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness".
A perusal of the above provision shows that the post of Principal can be filled up either by direct recruitment or by promotion. So far as direct recruitment is concerned, the normal procedure known in service jurisprudence is that the post is advertised. The eligible candidates submit their applications. The candidates are objectively considered by a process of interview etc. by the competent authority. The most meritorious person is selected and appointed. However, in the present case, the management had decided to fill up the post by promotion. Appointment to the post of Principal by promotion is governed by the provision contained in Clause (3). It categorically provides that "the educational agency shall make the appointment on the basis of seniority-cum-fitness".
13. Apparently, the provision is reasonable. Unless found unfit, the senior-most person has to be promoted. The provision limits discretion. It avoids controversy and heart burning. Still further, the exact import of a rule of promotion on the basis of seniority-cum-fitness was considered by their Lordships of the Supreme Court in Union of India v. Lt. General Rajendra Singh (2000 (6) SCC 698). It was inter alia observed as under-
"The selection for promotion is based on different criteria depending upon the nature of the post and requirements of the service. Such criteria fall into three categories, namely:
1) Seniority-cum-fitness;
2) Seniority-cum-merit;
3) Merit-cum-suitability with due regard to seniority.
Whenever fitness is stipulated as the basis of selection, it is regarded as a non-selection post to be filled up on the basis of seniority subject to rejection of the unfit".
14. Section 57(3) embodies a rule for promotion on the basis of seniority-cum-fitness. In view of the above observations, it is clear that the senior-most out of the eligible persons has to be appointed as Principal unless he is found to be unfit.
15. However, in the light of the contention as raised by the counsel, the real question is - Does this provision interfere with the right of the 'minority' to administer 'the institution?
16. Mr. Kelu Nambiar submits that the Principal has to administer the college. Any interference in the appointment of the Principal would be restrictive of the management's right to manage the institution. The claim has been controverted by the counsel for the respondents.
17. The matter has been considered at length by their Lordships of the Supreme Court in T.M.A. Pai Foundation's case. So far as unaided institutions are concerned, it has been categorically held that they are entitled to "autonomy in their administration........". However, in respect of aided institutions it has been held that "the Government or the State agency..... can put fetters on the freedom in the matter of administration and management of the institution". The inevitable inference from the observations is that acceptance of aid by the institution takes away its right to claim immunity from interference. Aid carries a price tag. The institution has to give up a part of its independence. This is so despite the fact that the institution is being administered by the minority community.
18. In this context, it deserves notice that while dealing with the minority institutions receiving aid, the following observations have been made in paragraph 73:-
"73. There are a large number of educational institutions, like schools and non-professional colleges, which cannot operate without the support of aid from the State. Although these institutions may have been established by philanthropists or other public spirited persons, it becomes necessary, in order to provide inexpensive education to the students, to seek aid from the State. In such cases, as those of the professional aid institutions referred to hereinabove, the Government would be entitled to make regulations relating to the terms and conditions of employment of the teaching and non-teaching staff whenever the aid for the posts is given by the State as well as admission procedures. Such rules and regulations can also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed. In other words, the autonomy of a private aided institution would be less than that of an unaided institution".
A perusal of the above observations shows that the Government is entitled to "make regulations relating to the terms and conditions of employment of the teaching" and other staff. It has been further observed that such provision can "also provide for the reasons and the manner in which a teacher or any other member of the staff can be removed". It is, thus, clear that in the case of minority institutions the State which provides aid can lay down regulations governing the conditions of service as also the procedure etc, for removal therefrom. Such regulations shall inevitably deal with the method of appointment. In view of the dictum of law as laid down in the above paragraph, the provision contained in Section 57(3) cannot be said to be ultra vires Article 30. Resultantly, the contention that Section 57(3) offends Article 30 of the Constitution cannot be sustained.
19. No other point has been raised by counsel for the petitioners in O.P. Nos. 3015 and 3742 of 2001. Resultantly, both these petitions are dismissed.
20. This brings us to the consideration of the other petitions. O.P. No. 10111 of 2000 has been filed by Dr. Varghese M. Mathunny. He primarily prays that the orders dated March 27, 2000 and April 15, 2000 by which Rev. Daniel Kuzhithadathil was given charge of the office of Principal and was allowed to function as Drawing and Disbursing Officer be quashed. He further prays for the issue of a writ of mandamus directing the respondents to consider his claim.
21. It is the admitted position that by these two orders, the management had not appointed Rev. Daniel as a regular Principal (Special Grade). It had not given him any extra allowance or emoluments. The pay of the post of Principal was not to be paid to him. In fact, he was appointed as a Principal on June 6, 2000 only. This order was never challenged by him. Not even during the hearing of these cases. Still further, it is also admitted that the petitioner had retired from service on May 31, 2001. In this situation, we find no ground to grant any relief to the petitioner. The petition has been rendered infructuous by the petitioner's retirement. Thus, no relief can be given to him. It is, accordingly, dismissed.
22. The petitioner in O.P. No. 10721 of 2001 had actually approached the University Appellate Tribunal to challenge the appointment of Rev. Daniel Kuzhithadathil as Principal. His claim was upheld. It is also the admitted position that he was the senior-most Lecturer in the College on April 1, 2000 when the post of Principal had fallen vacant. Thus, his claim had to be considered in accordance with the provision contained in Section 57(3) and the Regulations framed by the University. Admittedly, his claim was not considered. The direction given by the Tribunal having been stayed, he had retired from service on March 31, 2001 without getting a chance to occupy the post of Principal (Special Grade).
23. In view of the fact that Section 57(3) was applicable to the respondent-institution, we find that he had a right to be considered on the basis of seniority-cum-fitness. It is true that he had retired on March 31, 2001. But he would be entitled to be considered with effect from the date Rev. Daniel Kuzhithadathil was actually considered and appointed as Principal (Special Grade) viz., June 6, 2000. Nothing has been pointed out which may reflect adversely on Mr. Jose. Clearly, he had a right to be considered for promotion. In the event of promotion, he would have held the post of Principal (Special Grade) with effect from June 6, 2000 to March 31, 2001. It would have certainly resulted in higher emoluments. It would even affect his retiral benefits. Thus, the petition is allowed. It is directed that his claim for promotion as Principal (Special Grade) shall be considered with effect from June 6, 2000 when Rev. Daniel Kuzhithadathil was promoted as principal (Special Grade). All consequential benefits shall follow. The needful shall be done within one month from the date of receipt of a copy of this judgment.
24. O.P.No. 14337 of 2000 was filed by Dr. P.V. Thomas to challenge the orders dated March 27, 2000 and April 15, 2000. The petitioner had approached this Court at a stage when regular appointment to the post of Principal had not been made. This petition has remained pending for the last more than three years. Still further, it is the admitted portion that Mr. T. Jose, who was the senior-most person would have continued as Principal from June 6, 2000 to March 31, 2001. Thus, with effect from April 1, 2001 the post would again be vacant. It shall have to be filled up in accordance with the provision of Section 57(3). The petitioner who is working in the college has a right to be considered in the order of seniority. The petition is disposed of with the direction that the claim for promotion to the post of Principal (Special Grade) shall be considered with effect from April 1, 2001. The consequential benefits in the matter of fixation of pay etc., if any, shall follow. The needful shall be done within one month from the date of receipt of a certified copy of the order.
25. The five Writ Petitions are, accordingly, disposed of in the above terms. There will be no order as to costs.
26. This brings us to the consideration of O.P. No. 6621 of 2003. The petitioners herein are the Manager and the Principal of the St. Gregorious College, Kottarakkara. They have approached this Court to challenge the order dated January 30, 2003 passed by the Kerala University Appellate Tribunal. By this order, the claim of the first respondent had been sustained by the Tribunal. It was held that the appointment of Mr. P.G. Thomas Panicker (petitioner No. 2 herein) was not in conformity with law and that the first respondent, who was the petitioner before the Tribunal, was entitled to be considered.
27. Even in this case, the view expressed by the Tribunal was that the claim of the first respondent had not been considered by the management in accordance with the provision of Section 57(3). This was in conformity with our finding on the question as posed at the outset. Resultantly, the order passed by the Tribunal has to be sustained and the Writ Petition is to be dismissed. Ordered accordingly. The petitioner management shall now proceed to do the needful in accordance with the provision contained in Section 57(3) of the Act within one month from the date of receipt of a copy of this judgment. It shall fill up the post of Principal in accordance with the directions given by the Tribunal. All consequential benefits shall follow. However, as in the other cases, there will be no order as to costs.
The question as posed at the outset is answered in the negative. It is held that Section 57(3) is not ultra vires Article 30 of the Constitution. The Petitions are disposed of in the above terms. No costs.