Kerala High Court
Suresh vs Manager, S.N.M. College on 2 September, 2003
Equivalent citations: 2003(3)KLT839
Bench: J.B. Koshy, A.K. Basheer
JUDGMENT Jawahar Lal Gupta, C.J.
1. Does a provision providing for promotion to the post of Principal of a College "on the basis of seniority-cum-fitness" permit a comparative assessment? This question arises in the context of the interpretation of Section 59(3) of the Mahatma Gandhi University Act, 1985. Almost identical provisions of different University Acts have been considered by two different Full Benches of this Court in Rev. Mother Provincial v. State of Kerala (1969 KLT 749) and Benedict Mar Gregorious v. State of Kerala (1976 KLT 458). In Mother Provincial's case (supra), it was held that "a senior person can be overlooked in favour of a junior, who is demonstrably more fit for the appointment". This view was reiterated in the latter decision in Mar Gregorious's case (supra). However, when the present appeals were placed before the Division Bench, it was urged that in view of the decision of the Supreme Court in Union of India v. Lt. General Rajendra Singh Kadyan (2000) 6 SCC 698, the view taken by the Court has become unsustainable. Thus, the matter was referred to a Full Bench. Learned Counsel for the parties have referred to the facts in W.A. No. 3085 of 2000. These may be briefly noticed.
2. The post of Principal was likely to fall vacant on June 30, 1999. In anticipation, on May 24, 1999, the College management invited applications for the post of Principal. The applications had to be submitted on or before May 29, 1999. A written test was held. Thereafter the candidates were interviewed on June 11, 1999. Vide order dated June 14, 1999 the second respondent, who was admittedly junior to the appellant, was appointed as the Principal with effect from the afternoon of June 30, 1999. At that time, the appellant was working as a Senior Lecturer (Selection Grade). The second respondent had not yet been promoted.
3. Section 59(9) of the Act provides for a remedy of Appeal before the University Appellate Tribunal. Aggrieved by the order of promotion of the second respondent, three persons, who were admittedly senior to him including the two appellants in the appeals before us, approached the Tribunal through three separate appeals. It was inter alia pleaded that the order of promotion was in violation of the provisions of the Act. The second respondent was not eligible for promotion to the post of Principal, as he did not fulfill the essential qualification. It was further alleged that the action was malafide..
4. The claim of the appellants was contested by the respondents. It was inter alia pleaded that Section 59(3) permitted "a comparative assessment" of the candidates. Thus, the selection could be made on the basis of a written test and interview. The second respondent had been appointed as a Lecturer (Selection Grade) vide order dated October 1, 1999, with effect from Jan. 17, 1995. Thus, he was eligible. The selection was fair and reasonable. On this basis, it was pleaded that the Appeals deserved to be dismissed.
5. The matter was considered by the Tribunal. It was inter alia held that:
1. The Management can choose a junior person if it can be shown that he was demonstrably more fit than the senior. It was the bounden duty of the selection committee to give reasons as to why one was permitted to another and particularly when they had selected a junior (vide Para 61 of the order at Ext. P1).
2. The candidates had experience ranging from 19 years to 33 years. The selection committee had fixed a total of 50 marks. Only 10 marks were allotted to the "service weightage". Major portion of the marks were earmarked "towards factors regarding fitness". The length of service "was not given due weightage". Thus, "there was a clear violation of Section 59(3) of the Mahatma Gandhi University Act (vide paragraph 63).
3. There was no indication in the file "as to why the second respondent was preferred to the appellant, who is admittedly junior.....".(paragraph 64)
4. The "second respondent was not unqualified to apply for the post of Principal and that the appellants have failed to establish that the impugned order was actuated by malafides (paragraph 67).
6. In view of the above findings, the appeals were allowed. The selection of the second respondent was set aside. The College was directed to make a fresh selection within a period of two months.
7. Even though the selection and appointment of the second respondent had been set aside, the appellants in these two cases were not satisfied with the finding that a comparative assessment was permissible and that the second respondent was eligible. They challenged the order of the Tribunal before this Court. They also prayed for the grant of interim stay restraining the College management from proceeding with the fresh selection.
8. The Writ Petition filed by the appellant in W.A. No. 3085 of 2000, viz., O.P. No. 12138 of 2000 along with C.M.P. No. 19975 of 2000 was posted for hearing on April 19, 2000. The petition was admitted. The interim prayer for stay of the operation of the order passed by the Appellate Tribunal directing a fresh selection was also "granted for six weeks." The respondent-management filed C.M.P. No. 20675 of 2000 for vacation of stay. This Miscellaneous Petition was heard on April 28, 2000. The following order was passed:
"Appointment can be made. But if any appointment is made, it will be provisional and subject to the result of the Original Petition. Post after vacation.
Sd/-
9. In pursuance to the above order permitting the Management to proceed with the selection and appointment, the Management had proceeded to make the selection. It appears that the selection committee consisting of the President, Secretary, Manager and two teachers was constituted. It had met on April 2, 2000 and laid down the criteria "for selection". After the vacation of the interim order of stay, the Committee had again met on May 1, 2000. The interviews were fixed for May 12, 2000. On that day, the second respondent was again selected. The proceedings of the selection committee were produced by Mr. Dinesh Shenoy, advocate for the first respondent during the course of the hearing. A photocopy of the document was retained on record as Mark-A. Reference to these proceedings shall be made at a later stage. It may only be mentioned that on this occasion, the selection was made after interview on the basis of a criterion of 50 marks for service and 50 for various other factors.
10. Thereafter, the Writ Petitions were heard by the learned Single Judge. Vide order dated October 25, 2000 the petitions were disposed of with the observation that the petitioners could approach the Appellate Tribunal against the fresh selection made during the pendency of the petition. The Tribunal was directed to decide the appeal within four months. Not satisfied with the order, the petitioners in the two cases have filed these two appeals. On October 5, 2000 the appeals were referred to the Full Bench .
11. Learned counsel for the parties have been heard. On behalf of the appellants, Mr. Mathai M. Paikeday contended that Section 59(3) of the Act does not permit the Management to make a comparative assessment of the merits of the candidates. The senior most person has to be promoted unless, it is found for good reasons, that he is not fit for the post. He further contended that only persons possessing the prescribed qualifications were eligible to be considered. The second respondent does not fulfill the basic conditions of eligibility. Resultantly, he could not have even been considered much less than be promoted. It was further contended that any promotion made during the pendency of the Writ Petition had to be provisional. It was subject to the result of the petitions. Thus, if the appeals are allowed, even the second selection would be illegal and untenable.
12. On the other hand, Mr. Dinesh Shenoy, learned counsel for the first respondent, viz., the Manager representing the institution, submitted that the Management is entitled to make selection for the post of Principal. The seniority as well as fitness of the candidate has to be seen. Thus, the selection as made by the Management was legal and valid. The submissions were reiterated by Mr. Jayakumar, who appeared for the second respondent.
13. In view of the contentions as raised by the learned counsel, the two questions that arise for consideration are:-
(i) Does Section 59(3) permit or preclude the Management from making a comparative assessment for the purpose of choosing a person for promotion to the post of Principal?
(ii) Was the second respondent eligible for promotion to the post of Principal?
Regarding (i) :-
14. Mr. Paikeday contended that Section 59(3) requires the Management to fill up the post of Principal on the basis of seniority-cum-fitness. The provision merely permits the exclusion of the unfit. It does not allow any comparative assessment or selection of the best. Is it so?
15. The Act was promulgated to incorporate the Mahatma Gandhi University. It provides for the affiliation of the private colleges. Chapter VIII deals with the "Private Colleges and affiliation of Colleges". Section 54 provides for the governing body of a private college in respect of management "which manages a private college". In case of managements having more than one private college, the provision is contained in Section 55. Section 56 provides for the appointment of a Manager. Section 57 protects the proceedings of the governing body or managing council from being invalidated on account of "any vacancy", a "defect in the appointment of a person", or any irregularity in the procedure, which does not affect the merits of the case. Section 58 provides for the affiliation of colleges. Section 59 deals with the appointment of teachers. It provides as under:
"59. 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 principals 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.
(4) Appointments to the posts, other than those referred to in Sub-sections (1) and (2), shall be made by the educational agency by promotion from among the teachers of college or of all the colleges, as the case may be, on the basis of seniority-cum-fitness, or, if none among them is fit for promotion, by direct recruitment.
5) For making appointment under this section by direct recruitment, the post shall be advertised in such manner as may be prescribed by the Statutes.
(6) The educational agency shall not abolish a course of study in a private college without the prior approval of the University.
(7) Every appointment under section shall be made by a written order of the Manager in such form as may be prescribed by Statutes, communicated to the person to be appointed, with copy to the University.
(8) Every appointment under this section shall be reported to the University for approval.
(9) Any person aggrieved by any appointment under this section may appeal to the Appellate Tribunal".
16. A perusal of the above provision shows that the posts of teachers in the lowest grade have to be filled up by direct recruitment. The post of Principal can be filled up by promotion and also by direct recruitment. For promotion, the case has to be considered "on the basis of seniority-cum-fitness". For the purpose of direct recruitment, the post has to be advertised in the manner "prescribed by the statute". The order of appointment have to be communicated in writing in the prescribed form to the teacher and the University. An aggrieved person has a right of appeal before the Tribunal.
17. So far as the present case is concerned, the controversy centres on the provision contained in Clause (3), which inter-alia provides for appointment to the post of Principal by promotion. It has been specifically provided that it shall be made on the basis of seniority-cum-fitness. Apparently, the provision is couched in a mandatory language. The use of the word "shall" makes it imperative for the management to follow the prescribed criteria. In the context, the word 'shall' cannot be interpreted to mean 'may', for, that would lead to an anomalous situation. The Legislature appears to have clearly intended that the discretion of the management should be restricted. The short question is-
Does, the provision preclude the Management from following the process of comparative assessment?
18. Undoubtedly, the post of Principal of a College is pivotal. The Principal is the Head of the Institution. He has to perform the academic and administrative functions. He has to lead the Institution. He should be able to lead by personal example. His conduct must be worthy of emulation. In the normal course, the Management should be entitled to select and appoint the best person. However, the legislature has expressly laid down that if the management decides to fill up the post by promotion, the appointment has to be made on 'the basis of seniority-cum-fitness'.
19. What is the meaning of seniority-cum-fitness? Is the Management entitled to make a comparative assessment? The issue was considered by a Full Bench of this Court in Mother Provincial's case (supra). The Bench was dealing with the issue in the context of an institution administered by a religious minority. While dealing with the provisions of the Kerala University Act, 1969, it was inter alia observed at page 772 that "the test of seniority-cum-fitness prescribed in the sub-section does not mean that promotion is to be on the principle of seniority subject to fitness which is the test adopted for. 'non-selection' posts in the civil service rules of the State. Seniority-cum-fitness means that due and equal regard should be paid both to seniority and to fitness, and, since fitness is a matter of degree, it would appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment that he is". Thus, the Bench was of the view that the provision for promotion on the basis of seniority-cum-fitness permits the Management to select a junior, who is demonstrably more fit than the senior. In other words, the rule of comparative assessment was applied. Since the Bench was examining the whole issue in the context of the right of a minority institution, various provisions of the Act were held to be violative of Articles 19(1)(f) and 30(1) of the Constitution. This decision was challenged by the State before their Lordships of the Supreme Court to a limited extent. So far as the finding regarding provision for promotion to the post of Principal was concerned, the question was not raised. The judgment of the Full Bench was affirmed by the Supreme Court in State of Kerala v. Rev. Mother Provincial (AIR 1970 SC 2079) in so far as the challenge levelled by the State was involved.
20. Similarly, another Full Bench of this Court had considered the rule of 'seniority-cum-fitness in the case of Benedict Mar Gregarious (supra). This was again a case where the provisions of the Kerala University Act, 1974 were being considered. The validity of the Act was challenged on the touchstone of Article 30 of the Constitution.. The rule enunciated in Mother Provincial's case (supra) with regard to the provision for promotion to the post of Principal was reiterated.
21. Normally, in view of the pronouncement by the two Full Benches, the matter should be treated as concluded. However, the correctness of the view taken in these two Full Bench decisions was questioned on the basis of the observations of their Lordships of the Supreme Court in Lt. General Rajendra Singh Kadyan's case (supra). Thus, the issue has to be examined in the light of the observations of the Supreme Court. Mr. Paikeday referred to the pronouncement in Government of India v. C.A. Balakrishnan (AIR 1975 SC 1948). In this case, the issue related to the promotion to the post of Superintendent in the Department of Food and Supplies. At the relevant time, the rule provided for the promotion on the basis of seniority-cum-fitness. The High Court had struck down the appointment of the selected candidate on the ground that the rule of selection had been flouted. The view taken by the High Court was upheld by their Lordships. Their Lordships had also referred to the decision in State of Mysore v. Syed Mahmood (AIR 1968 SC 1113). In Oharam Vir Singh Tomar v. Administrator, Delhi Administration, AIR 1991 SC 1924, the Court was considering the issue of grant of selection grade to teachers on the basis of seniority subject to fitness. The claim of the appellant before their Lordships was that there being no adverse entry in his character roll, he was fit for the grant of selection grade. While examining this question, their Lordships were pleased to observe as under in paragraph 2:
"Annexure 'AA' (page 22) that Selection Grade to teachers was to be given on the basis of seniority, subject to fitness. The expression 'fitness' means that there should not be any adverse entry in the Character Rolls of the concerned person at least for the last three years and no disciplinary proceedings should be pending against him. So far as the appellant is concerned indisputably there was no adverse entry in his C.Rs, nor was any disciplinary proceeding pending against him at the relevant point of time. Therefore, he was clearly fit to be placed in the Selection Grade and since he was senior to respondent No. 6, it is difficult to understand how his claim was by-passed".
Still further, the issue was considered by their Lordships in the case of Lt. General Rajendra Singh Kadyan (supra). In this case, the issue related to the supersession of Lt. General Rajendra Singh for promotion to the post of Army Commander. His junior, Lt General Kalkat had been selected. On a consideration of the materials placed before the Court, it was held by their Lordships that the post of Army Commander is a selection post. However, while dealing with the issue of promotion on the basis of seniority-cum-fitness, it was 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."
These observations clearly indicate that a senior person can be denied promotion when he is found to be unfit. Not otherwise. Not on the basis of comparative assessment.
22. As already observed, it is true that the post of Principal is of utmost importance in an institution. The appointment of a proper person is imperative. But even in case of appointment to very senior posts in the country, it is not unknown that the law permits promotion of the senior-most. In the case of private institutions, the affairs are managed by persons, who may not be trained in administration. It is not difficult to imagine that the Manager of an institution may be illiterate. The members of the governing body may have their own predilections. Aware of the factual position, the Legislature appears to have chosen to restrict the management's discretion. It has placed an embargo on its power. It has consciously prescribed that the Management shall promote the senior-most person subject to his being found fit. Otherwise, a private management may act arbitrarily. Under the garb of selecting the best or at least a more suitable person, it may act unfairly. In an educational institution, there is a need to keep the environment congenial. If the junior persons are arbitrarily allowed to supersede the seniors, there can be a lot of avoidable heartburn. It can cause frustration. It can pollute the environment of the institution. To check this, the Legislature has given a limited discretion to the management. It can reject a senior person only if he is found to be unfit.
23. The present case is an instance of what may have weighed with the legislature. To illustrate, the relevant facts may be briefly noticed. In the first instance, the selection was made in June 1999. At that time, the Management had firstly conducted a written lest. Then, the candidates were interviewed. The Tribunal found that there was nothing to show as to why the senior person had been superseded. Thus, the selection was struck down by the Appellate Tribunal. Then the selection was made in May, 2000. A perusal of the papers produced by Mr. Shenoy shows that the candidates were made to fill up a proforma. They were required to give details regarding administrative and research experience, extra-curricular activities, the programme and vision for development of college, the method to enforce discipline amongst staff and students and to encourage students for the improvement of their capacity and personality etc. A criterion for evaluating the inter se merit had been laid down by the selection committee in the meeting held on April 3, 2000. It was decided that a total of 100 marks could be awarded. 50 were "for service weightage" and 50 for "merit". A candidate, who failed to secure 20 marks out of the 50 earmarked for merit/fitness was to be rendered ineligible. 5 marks were allotted for Doctorate and 3 marks for M. Phil. Only "administrative experience as Head of the Institution/College" was to be considered. The candidates were interviewed on May 12, 2000. The marks-sheet for the interview is at page XIX of the documents produced by Mr. Shenoy. It shows that 9 candidates were considered. The second respondent had joined service as a Lecturer on January 17, 1980. Another candidate, viz., Mr. T. Kesavan, a Selection Grade Lecturer in Physics had joined service on June 29, 1966. He had got 50 out of 50 marks for the service. However, he was awarded a total of 6 marks out of 50 for fitness while examining his case under different heads. The result was that he secured only 56 marks out of 100. As against this, the second respondent had got 31 marks for his service, which had commenced on January 17, 1980. He was, however, given 32 marks out of 50 for merit. As a result, his score was 63. In fact, it appears that one was awarded 57, three candidates had a score of 56, another had scored 50 and three were below 50. Was it fair?
24. On an examination of the proforma submitted by the candidates, it appears that some of the candidates had administrative experience as Heads of Departments or on other posts. No credit was given therefor. Similarly, even when particulars of extra curricular activities had been given, the candidates were not given the due credit. Still further, it appears that one of the candidates, viz., Mr. George V. Chemparathy had passed M. Phil in the First Class with a score of 67%. He was given 3 marks for additional qualification. The second respondent, who had passed M.Sc. Chemistry with 50.3% marks and secured a B Grade in M. Phil was also given 3 marks for additional qualification. On an examination of the record, we are satisfied that the award of marks under different heads was arbitrary and unfair. We also find that the candidates were arbitrarily denied the benefit of administrative experience as Heads of the departments by prescribing the condition that the administrative experience should be as Head of the Institution/College. This was an impossible condition. No person who had administrative experience, as Head of the Institution/College would be working as a Senior Lecturer or seeking appointment as Principal. Even if some candidates were to do so, it appears that this condition was stipulated purposely to deny the benefit to the candidates who had been working in Heads of Departments in the institution being run by the first respondent itself. In this context, it deserves mention that the management knew that only those who were already working in the College had to be considered for promotion. Their career profile was known. The stipulation was not made bonafide. It was a device to deny the benefit to the deserving candidates.
25. Mr. Shenoy pointed out that pages X to XII contain the reasons recorded by the committee for rejecting various candidates. We have perused the papers. The name of the second respondent appears at serial No. 1. It was observed that the candidate "has performed demonstrably well at interview. He is particulate (articulate) and confident. He demonstrated ability to handle campus problems and to enforce discipline well. The candidate has ideas and definite programme for the future development of the college". As against this, in respect of Mr. George V. Chemparathy, it has been noticed that he has research experience and a publication. However, "his ability to tackle campus problems" has been described as poor. His vision for development of the college is far below satisfactory. He was given 12 marks out of 50 for fitness. On an examination of the matter, we find that the marks had been arbitrarily allotted. The criteria was tailored to help the second respondent. The process of selection was not fair.
26. It appears that it is to check such arbitrariness that the Legislature had deliberately restricted the discretion of the Management. It had only permitted it to reject a senior candidate if he was unfit. Not otherwise. In any case, it is clear that for the purpose of promotion, the senior teacher cannot be arbitrarily denied appointment by devising such a method of selection.
27. It is possible to imagine that a candidate may be a good teacher. However, he may be totally lacking in the capacity to administer. In such a situation, it should be permissible and possible for the management to declare a candidate as unfit. However, there should be a reason for such a conclusion. It can't be done arbitrarily. It is true that the post of Principal of a College is pivotal. A bad teacher may not be able to administer an institution. However, the management has been given the discretion to supersede a senior person, if he is found unfit. This discretion can be exercised by the management on the basis of good reasons. Since the Act provides for the remedy of appeal before an Appellate Tribunal against an order of supersession, it would be incumbent on the management to give reasons for the supersession of a senior person. The reasons cannot be fanciful or imaginary. These must have a nexus with the fitness of the candidate for the post and should be founded on tangible material. In the present case, the selection committee had not rejected the senior persons on the ground of unfitness. It had in fact made the selection on a comparative assessment. The action was not in conformity with the provision contained in Section 59(3) of the Mahatma Gandhi University Act.
28. The Legislature as well as the rule making authority is entitled to lay down the criteria for appointment to a post. It can be based purely on merit. It can be, as observed by their Lordships of the Supreme Court in Lt. General Rajendra Singh's case (supra), by seniority-cum-merit. Or the appointment can be primarily on the basis of seniority subject to fitness. However, under each criterion, there is a difference. The method of seniority-cum-fitness is distinct from seniority-cum-merit and merit-cum-suitability or pure selection. In the present case, the criteria followed by the selection committee in the first as well as the second selection was not seniority-cum-fitness. It was pure selection by written test and interview on the first occasion. At the time of the second selection, the candidates were interviewed. The marks were equally assigned for merit and seniority viz., 50:50. Both times, the criterion was not seniority cum fitness. It was pure selection on one occasion and merit with regard to seniority on the other. This was contrary to the statutory provision embodied in Section 59(3) of the Act. Thus, the view taken by the Appellate Tribunal in the impugned order at Ext. P1 that the method adopted by the Committee to make the selection was legal, cannot be sustained.
29. Mr. Shenoy pointed out that the order of the Tribunal was in conformity with the view expressed by the Full Bench of this Court. Normally, this view would have been binding on us. However, in view of the decision of their Lordships of the Supreme Courts in Lt. General Rajendra Singh's case (supra), the earlier view of the Full Bench as contained in Mother Provincial's case (supra) and Benedict Mar Gregorios' case (supra) has been rendered unsustainable. In view of the decision of their Lordships of the Supreme Court in Shyamaraju v. U.V. Bhat (AIR 1987 SC 2323) (particularly the observations at paragraph 13), it is not necessary for us to refer the matter to a Larger Bench. Thus, it is held that seniority-cum-fitness postulates promotion on the basis of seniority subject to rejection of the unfit. It does not permit selection. Such a rule is calculated to avoid heart burning. It avoids controversy. It limits discretion. It excludes arbitrariness. In the existing situation, it is reasonable. The first question is accordingly answered in favour of the appellants.
Regarding (ii) :-
30. Mr. Paikadey contended that the second respondent was ineligible for appointment to the post of Principal. The claim was controverted by the counsel for the respondents. It was pointed out that the Tribunal had rightly found the second respondent to be eligible. What is the correct position?
31. Section 60 inter alia provides that "the teachers of Colleges shall possess such qualification as may be prescribed by the Regulations". The counsel did not refer to any regulation laying down the qualifications. However, it was pointed out that the posts of Senior Lecturers (Selection Grade) were envisaged under a Scheme prepared by the University Grants Commission. It was circulated vide letter dated October 16, 1991. For the post of Principal in Non professional colleges, the qualifications were prescribed asunder:
"Non-professional colleges : Teachers shall possess the following qualification.
1. Principal
1) A first class Master's degree or a second class Master's Degree with not less than 55% marks.
2) Appointment to the post of Principal shall be made from among the holders of posts of senior Lecturers (Selection grade) or Readers in the College or all the colleges in the case of corporate Management.
Desirable: Research Degree or published work of high standard.
Note: In the case of teachers who are in permanent service as on the date of coming into force of this amendment, they shall be deemed to be qualified if they did possess the minimum qualification prescribed by the Regulation in force at the time of their appointment".
32. A perusal of the above provision shows that a person could be appointed as a Principal only if he has a First Class Master's Degree or a Second Class Master's Degree with not less than 55% marks. Secondly, only the senior Lecturers (Selection Grade) or Readers in the College were eligible to be considered. Admittedly, the posts of Readers have not been created in the private Colleges. Thus, it is clear that the management could have considered the claims of only Senior Lecturers (Selection Grade) provided that they possess the Master's Degree with not less than 55% marks. What is the position in the present case?
33. Admittedly, the second respondent had a score of only 50.3% marks in the M.Sc. examination. Still further, he had not been appointed as a Senior Lecturer (Selection Grade) on or before May 29, 1999, which was the last date for the submission of applications. Thus it is apparent that he did not fulfill both the qualifications as prescribed under the Scheme circulated by the University Grants Commission.
34. Mr. Shenoy pointed out that in view of the Note contained in the scheme, the second respondent should be deemed to be academically qualified. Assuming it to be so, the fact remains that he had not been appointed as a Senior Lecturer (Selection Grade) at the relevant time.
35. Faced with the situation, it was submitted by the counsel that vide order dated October 1, 1999, the second respondent had been placed in the Selection Grade with retrospective effect from January 17, 1995. Thus, he should be presumed to be eligible on June 11, 1999 when the candidates were actually interviewed.
36. It is undoubtedly true that when a person is deemed to have been appointed, the position, which is fictionally presumed to exist, must be given full effect. However, the question that arises is - Was a post of Senior Lecturer in Selection Grade available on January 17, 1995? We had repeatedly asked the counsel for the respondents to point out any material from the record to show that actually the post was available in the year 1995. They were unable to do so. Thus, the benefit of retrospective appointment cannot be given to the second respondent.
37. There is another aspect of the matter. On August 4, 1995, the College Principal had submitted a proposal for the placement of teachers in the U.G.C. scheme. This proposal was "for placement of teachers in the vacancies caused in the sanctioned strength of posts in the U.G.C. scheme". The names of five persons in the order of seniority in the Department of Chemistry were mentioned. The name of the second respondent, who was admittedly working in the Chemistry Department, was not mentioned. Still further, it was also pointed out that Mr. K.K. Rajappan had been already placed in the U.G.C/scheme from January 1, 1986. Thus, there were four candidates who could be considered and that there were "three more vacancies in the U.G.C. scheme in Chemistry Department". The details regarding the dates of occurrence of the vacancies were also given. These had occurred on account of either a sanction by the competent authority or the retirement of the incumbents. If a vacancy had been available with effect from January 17, 1995, the Principal would not have failed to mention it in his letter of August 4, 1995. The fact that it was not actually mentioned in the letter, a copy of which is on record as Ext. P6, shows that the vacancy did not exist. Thus, on the record as placed before the Court, it cannot be said that the second respondent had been rightly appointed as a senior Lecturer (Selection Grade) with effect from January 17, 1995, He could not have been considered as eligible for appointment to the post of Principal. Resultantly, the finding of the Tribunal was not tenable.
38. Mr. Paikeday submitted that the second respondent had not been promoted as a Senior Lecturer. He had, in fact, been merely given the selection Grade on his completing 15 years of service. The contention appears to be correct. The 2nd respondent had joined service on Jan. 17, 1980. He had actually completed the requisite period of service for the grant of selection grade on Jan. 17, 1995.
39. Thus, even the second question has to be answered against the respondents.
40. Faced with the situation, the counsel for the respondents questioned the maintainability of the appeals. It was inter alia contended that the appellants had acquiesced in the selection by participating in the interview conducted by the selection committee. If at all, they can challenge the selection only before the Tribunal. The appellants were not entitled to raise the issue before this Court. It was also pointed out that one of the petitions, viz., O.P. No. 12139 of 2000 had been filed only under Article 227 of the Constitution. Thus, the appeal was not maintainable.
41. There appears to be no merit in these objections. So far as the plea of acquiescence is concerned, it may be noticed that the appellants had approached this Court at the earliest available opportunity. They had challenged the order of the Tribunal. They had prayed for stay. Vide order dated April 19, 2000, the Court had granted stay for six weeks. Thereafter, the respondent-management had filed a Civil Miscellaneous Petition No. 20675/2000 for vacation of stay. The application was accepted. The management was permitted to make the appointment. However, it was specifically ordered that the appointment, if made, "will be provisional and subject to the result of the Original Petition". Thus, it is clear that the validity of the second selection is incumbent upon the result of the pending proceedings. In this situation, it cannot be said that the appellants are estopped from challenging the selection despite the fact that their case was pending in the Court. Equally, it is also clear that if the order of the Tribunal is set aside in so far as it relates to its findings on the interpretation of Section 59(3) and the eligibility of the second respondent are concerned, the action of the respondents in making the second selection on the basis of the interpretation of the provision by the Tribunal would automatically fall. The foundation of the second selection rests on the interpretation of the Act. If the interpretation as given by the Tribunal is found to be invalid, the selection made by the management cannot be sustained.
42. The counsel contended that appellant in W.A. No. 3086 of 2000 had only filed a petition under Article 227 of the Constitution. Thus, the appeal is not maintainable. On behalf of the appellant, it has been pointed out that there was only clerical omission. In fact, a prayer for the issue of the writ of certiorari etc. had been made. The second petition specifically refers to Article 226 of the Constitution. The registry had numbered the petition as an Original Petition. The parties had contested both the cases together. The objection was not raised before the learned single Judge.
43. The counsel for the appellant appears to be right in his submission. In the facts and circumstances of the case, we are not inclined to accept the objections raised on behalf of the respondents.
44. A faint attempt was also made to contend that the Appellate Tribunal having not been impleaded as a party, the petitioners were not maintainable.
45. No such objection was raised before the learned Single Judge. Thus, the contention cannot be accepted.
46. No other point was raised.
47. In view of the above, it is held that:
1. Section 59(3)of the Act provides that appointment to the post of Principal of a Private College can be made by promotion from amongst the teachers of the College or by direct recruitment. The direct recruitment has to be made by advertisement of the post. When the management decides to fill up the post by direct recruitment, it may be entitled to make selection. It can choose the best person out of the available candidates.
2. So far as the appointment by promotion is concerned, the provision has been made in Section 59(3). It has been specifically provided that "the educational agency shall make the appointment on the basis of seniority-cum-fitness". These words of the Act have to be given their plain and natural meaning. The provision is couched in a mandatory language. The use of the word 'shall' makes it imperative for the management to follow the prescribed criteria. In the context, the word 'shall' cannot be interpreted to mean 'may', for, that would lead to an anomalous situation. The Legislature appears to have clearly intended that the discretion of the management should be restricted. The senior person should be promoted unless he is found to be unfit for the post of the Principal.
3. There appears to be good ground for the restriction. The obvious intention was that if a teacher had worked for a long period of time and there was nothing against him, then, his aspiration to be the Head of the institution should be fulfilled. The benefit should be denied only when he is found to be unfit. Not otherwise. In an educational institution, there is a need to keep the environment congenial. If junior persons are arbitrarily allowed to supersede the seniors, there can be a lot of avoidable heartburn. It can cause frustration. It can pollute the environment of the institution. To check this, the Legislature has given a limited discretion to the management. It can reject a senior person only if he is found to be unfit.
4. It is true that the post of Principal of a College is pivotal. A bad teacher may not be able to administer an institution. However, the management has been given the discretion to supersede a senior person, if he is found unfit. This discretion can be exercised by the management on the basis of good reasons. Since the Act provides for the remedy of appeal before an Appellate Tribunal against an order of supersession, it would be incumbent on the management to give reasons for the supersession of a senior person. The reasons cannot be fanciful or imaginary. These must have a nexus with the fitness of the candidate for the post and should be founded on tangible material.
5. The view taken by the Full Bench in the cases of Mother Provincial and Gregarious is no longer sustainable in view of the latest pronouncement of their Lordships of the Supreme Court in the case of Lt. General Kadyan.
In view of the above, the Writ Appeals are allowed. The order dated February 28, 2000 passed by the Tribunal on the appeals of the two appellants, a copy of which has been produced as Ext. P-1, is set aside in so far as it holds that Section 59(3) permits supersession of a senior person on the basis of comparative assessment. It is also set aside inasmuch as it was held that the second respondent was eligible. However, the order is affirmed to the extent it set aside the selection made by the first respondent. Thus, both the Writ Petitions are allowed. The management shall now make fresh selection in accordance with the principle of seniority-cum-fitness as held above. The needful shall be done within one month from the date of receipt of a certified copy of this judgment. In the circumstances, there shall be no order as to costs.