IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933 WP(C).No. 29512 of 2010(L) ---------------------------------------- PETITIONER(S): ----------------------- 1. THE MANAGER ST. JOSEPH'S COLLEGE FOR WOMEN, ALAPPUZHA,PIN- 688 001 2. SR. JANAT AUGUSTINE, PRINCIPAL, ST. JOSEPH'S COLLEGE FOR WOMEN, ALAPPUZHA,PIN- 688 001 BY ADV. SRI.P.C.SASIDHARAN RESPONDENT(S): ---------------------------- 1. UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, THIRUVANANTHAPURAM,PIN- 695 034 2. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, OFFICE OF THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM,PIN- 682 011 R1 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R2 BY GOVERNMENT PLEADER SMT.RANI DIOTHIMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01/09/2011, THE COURT ON 20/09/2011 DELIVERED THE FOLLOWING: sts WP(C)NO.29512/2010 APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE NOTIFICATION APPEARED IN THE HINDU, THE NEW INDIAN EXPRESS,MALAYALA MANORAMA AND DEEPIKA, DATED 10/2/2010. P2 COPY OF THE NOTIFICATION APPEARED IN THE NEW INDIAN EXPRESS, DATED 10/2/2010. P3 COPY OF THE NOTIFICATION APPEARED IN MALAYALA MANORAMA, DATED 10/2/2010. P4 COPY OF THE NOTIFICATION APPEARED IN DEEPIKA DAILY DATED 10/2/2010. P5 COPY OF THE SELECTION COMMITTEE MINUTES P6 COPY OF THE APPOINTMENT ORDER DATED 31/03/2010. P7 COPY OF THE ORDER ISSUED BY THE UNIVERSITY DATED 09/04/2010 P8 COPY OF THE UNIVERSITY ORDER DATED 22/06/2010 P9 COPY OF THE COMMUNICATION ISSUED BY THE UNIVERSITY DATED 31/08/2010. P10 COPY OF THE APPROVAL ORDER ISSUED BY THE UNIVERSITY P11 COPY OF THE SELECTION COMMITTEE MINUTES AND OF THE REPORT RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.S.TO.JUDGE sts T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 29512 of 2010-L - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 20th day of September, 2011. JUDGMENT The petitioners are aggrieved by the denial by the first respondent University, of the approval of appointment of the second petitioner as Principal of the College managed by the first petitioner Manager. The appointment was made by direct recruitment. The main objection by the University, as evident from the pleadings, is that the selection committee constituted for appointment of Principal was not in accordance with the provisions of the relevant University Statutes. 2. The case of the petitioners in a nutshell, is the following: The College, viz. St. Joseph's College for Women, Alappuzha is a private college affiliated to the Kerala University. It is a minority institution coming under Article 30 of the Constitution. It is one of the premier institutions of the nature in the entire district. It was started in 1954. 3. The then Principal of the College, Sr. Leelamma Joseph retired on attaining superannuation on 31.3.2010. The management decided to appoint the Principal through direct recruitment and a notification was issued in leading dailies, viz. The Hindu, The New Indian Express, W.P.(C).No. 29512/2010 -:2:- Malayala Manorama and Deepika. Copies of them have been produced as Exts.P1 to P4. Five applications were received including that of the second petitioner. A selection committee consisting of five members, whose details are given in para 5 of the writ petition, was constituted and a copy of its minutes has been produced as Ext.P5. The second petitioner was ranked as first. She was a Selection Grade Lecturer in Chemistry in St. Michael's College, Cherthala having 21 years of experience and a Doctoral Degree in Chemistry. Ext.P6 is the copy of the appointment order and she joined duty on 1.4.2010. Ext.P7 is the copy of the order issued by the University approving the appointment of the second petitioner as Drawing and Disbursing Officer of the College for a period of three months with effect from 3.4.2010, which was extended by another three months by Ext.P8 order. Ext.P9 is the communication by which the proposal for approval of appointment as Principal was rejected. 4. The petitioners' contentions are many fold. It is pointed out that under Section 57(2) of the Kerala University Act, the appointment of Principal can be by promotion or by direct recruitment. If it is by promotion, then the principle of seniority-cum-fitness will have to be followed. Under Section 57(5) of the Act, if the method of direct W.P.(C).No. 29512/2010 -:3:- recruitment is adopted, then the post shall be advertised in the manner prescribed by the Statute. 5. The main contention raised by the petitioners is that no specific statute has been prescribed streamlining the procedures of appointment of Principal by direct recruitment and the details of the selection committee to be constituted have not been specified in any of the statutes. It is pointed out that the statute only covers the appointment of teachers by direct recruitment and the procedures therein are unworkable as far as the appointment of Principal is concerned. The University, in their counter affidavit maintains that the procedure prescribed under the Statute will govern the matter. Reliance is also placed on the UGC Scheme, 1998 which also provides for constitution of a selection committee for appointment of Principal. 6. The question that arises is whether, for appointment of Principal by direct recruitment, a selection committee will have to be constituted in terms of the Kerala University First Statutes. 7. Learned counsel for the petitioner submitted that one of the methods provided under the Act for filling up the post of Principal is by direct recruitment. Guidelines with regard to the formation of a selection committee when the appointment of Principal is made by direct recruitment, W.P.(C).No. 29512/2010 -:4:- have not been provided under the Act or under the Kerala University First Statutes. A fair procedure was adopted by the management by constituting a selection committee consisting of five members, whose credentials are well-known. There is no complaint about the selection procedure also. It is therefore submitted that when such a fair procedure was adopted, it is incumbent on the University to approve the appointment. My attention was invited to the relevant provisions of the First Statutes also. It is pointed out that the Kerala University (Conditions of Service of Teachers and Members of Non-Teaching Staff) First Statutes, 1979 under Chapter 2, Statute 4 provides for the constitution of the selection committee for appointment in regard to Teachers only. It is pointed out that one of the members of the selection committee should be a subject expert and as far as the appointment of Principal is concerned, the same is unworkable, as the selection is not confined to a particular subject. It is further pointed out that even going by Statute 11 it can be seen that first appointment of a teacher in a private Arts/Science college shall be only as a lecturer and it therefore indicates that the provisions of Statute 4 and the other condition are applicable only for appointment as a lecturer. Statute 12 gives the maximum age limit for direct appointment which is also not applicable as far as the post of Principal is concerned. W.P.(C).No. 29512/2010 -:5:- 8. Learned Standing Counsel for the University submitted that the definition of 'teacher' under Section 2(27) of the Act includes the 'principal' and therefore the relevant statute will apply. 9. The relevant provisions of the Act show the following: Sections 57(2) and 57(5) of the Act reads as follows: “57(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. 57(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.” Thus, the Act provides for appointment of Principal by direct recruitment. The definition of 'Principal' under the Section 2(15) states that “principal” means the head of a college. The definition of 'teacher' under Section 2(27) is the following: “2(27) “teacher” means a principal, professor, associate professor, assistant professor, reader, lecturer, instructor, or such other person imparting instructions or supervising research in any of the colleges or recognised institutions and whose appointment has been approved by the University.” Therefore, evidently there is a separate definition of “principal” as well as of “teacher”. The provisions of the relevant statute will have to be analysed to W.P.(C).No. 29512/2010 -:6:- find out whether it will apply to the formation of a selection committee for appointment of Principal by direct recruitment. Chapter 2 of the Kerala University (Conditions of Service of Teachers and Members of Non- teaching Staff) First Statutes, 1979 deals with the conditions of service of teachers in private colleges. Statutes 3 and 4 are extracted below: “3. Appointment of teachers by direct recruitment:- For making appointments to the posts of teachers by direct recruitment, the posts shall be advertised in two English and two Malayalam daily news papers approved by the University giving a minimum period of thirty days for the aspirants to apply. 4. Constitution of Selection Committee for appointment.- (1) In order to ensure that appointments of teachers by direct recruitment are on the basis of merit such appointments shall be made by the Educational Agency from a panel of three names for every vacancy recommended by a selection committee constituted by the Educational Agency and consisting of the following members, namely:- (a) two representatives of Educational Agency nominated by it one of whom shall be the Chairman of the Selection Committee; (b) the Principal of the College; (c) the Head of Department in the subject concerned; and W.P.(C).No. 29512/2010 -:7:- (d) one expert in the subject nominated by the Vice- Chancellor. (2) Three members including the member referred to in item (d) shall constitute the quorum for a meeting of the Selection Committee. (3) Notwithstanding anything contained in clause (1), in the case of any Educational Agency which has voluntarily entered into a written agreement with the Government for the direct payment of salaries to the teachers and the non- teaching staff of its Arts, Science or Training Colleges, appointments of teachers whether provisional or permanent, shall be made only from a list of persons prepared by a selection committee constituted by the Educational Agency and consisting of the following members, namely:- (a) two representatives of the Educational Agency nominated by it: (b) a person nominated by the Educational Agency from amongst the Principal, Heads of Departments and Professors of the College or where the Educational Agency has two or more colleges, from amongst the Principals, Heads of Departments and Professors of all those Colleges: Provided that before making any such nomination, the Educational Agency shall obtain the concurrence of the University. W.P.(C).No. 29512/2010 -:8:- (c) one member chosen by the Educational Agency from among the Secretaries to the Government and the District Collectors: Provided that if for any reason the Government consider that the officer chosen by the Educational Agency cannot be deputed to the Selection Committee, the Educational Agency shall choose another officer from amongst the said categories: (d) one expert chosen by the Educational Agency from a subject-wise list of experts prepared by the University containing not less than five members and made available to the educational agency on its request at the beginning of each academic year: Provided that if the Educational Agency considers that the list is insufficient, it may request for more names to be included in the list and the University, shall, as far as possible, comply with such request: (4) A representative of the Educational Agency referred to in item (a) of clause (3) or the members referred to in item (b) of that clause, as may be decided by the Educational Agency, shall be the Chairman and the convener of the Selection Committee constituted under the said clause. (5) The Selection Committee constituted under clause (1) or clause (3) shall meet as often as is necessary.” W.P.(C).No. 29512/2010 -:9:- 10. Evidently, Statutes 3 and 4 concern appointment of teachers by direct recruitment. Advertisement shall be made in two English and two Malayalam daily newspapers as specified. The constitution of a selection committee provided therein shows that it will include two representatives of Educational Agency nominated by it, the Principal of the College, the Head of Department in the subject concerned and one expert in the subject nominated by the Vice Chancellor, going by Statute 4(1). A separate mode is also provided in statute 4(3) in respect of Educational Agency which has voluntarily entered into a written agreement with the Government for the direct payment of salaries to the teachers and the non-teaching staff. Evidently, these two provisions give particular emphasis to the constitution of selection committees including a subject expert. That clearly indicates that the selection committee is for direct recruitment of the teachers concerned in various subjects. When it is for the appointment of a Principal, there is no restriction that the applicant shall be of a particular subject. If that be so, the provisions with respect to the constitution of selection committee of teachers will be unworkable as far as the constitution of selection committee for the post of Principal. There cannot be any dispute that the only provision providing for constitution of selection committee for appointment of teachers in private colleges is Statute 4 under Chapter 2 of W.P.(C).No. 29512/2010 -:10:- the Kerala University First Statutes. There are other indications in the said chapter itself that it will only apply to teachers. Statute 5 deals with the quorum for meetings which is fixed as three. Statute 6 relates to selection committee for teaching staff of Private Engineering Colleges. Therein also inclusion of different members have been provided. Statute 8 provides that “the members of the Committee for selection of the teaching staff referred to in clause (3) of statute 4 shall hold office for a period of one academic year commencing from 1st June and ending with the 31st day of May of the succeeding year.” Statute 10 deals with the method of selection of teaching staff by Educational Agency. Detailed provisions have been provided including publication of a select list which should remain in force for a period of one year. Statutes 11 and 12 provides as follows: “11. First appointment of a teacher - The First appointment of a teacher in a private Arts/Science College shall be only as a lecturer. 12. Age limits for direct appointment:- The minimum and the maximum age limits for appointments by direct recruitment of teachers in private colleges shall be the same as those applicable from time to time for direct recruitment of teachers in Government Colleges.” Thus, it can be seen that the above provisions cannot apply as far as the selection to the post of Principal is concerned. The age limit prescribed W.P.(C).No. 29512/2010 -:11:- therein can only apply to direct recruitment of teachers. If the argument of the learned Standing Counsel for the University that the word 'teacher' will take in as Principal also, is accepted then these provisions will become unworkable. 11. Thus, evidently Statute 4 of Chapter 2 of the Kerala University First Statutes, 1979 can only apply to the constitution of a selection committee for appointment of teachers. The same cannot apply to the appointment of Principal by direct recruitment. 12. The position which therefore emerges is that there is no specific provision concerning the constitution of a selection committee for appointment of Principal under Chapter 2 or any other chapter of the Kerala University First Statutes, 1979, and a general provision making the provisions of statute 4 applicable to the selection to the post of Principal by direct recruitment, is also not there under the First Statutes, 1979 or under any of the provisions of the University Act. 13. The next contention urged by the University in their counter affidavit is that the revised UGC Scheme, 1998 has been accepted and implemented by the Government and the University and Appendix VI deals with the constitution of selection committee for Principal. Details have been given in para 7 of the counter affidavit. Therefore, the stand taken is W.P.(C).No. 29512/2010 -:12:- that the petitioners have not constituted the selection committee either in accordance with Chapter 2 of the First Statutes or as per the revised UGC Scheme, 1998. 14. Learned counsel for the petitioners submitted that the relevant provisions of the University Act or the First Statutes have not been amended for incorporating the provisions of the UGC Scheme, 1998. In this context, reliance is placed on the decision of a Division Bench of this Court in S.N. College v. N. Raveendran (2001 (3) KLT 938). 15. The Division Bench in the above decision was of the view that as far as the application of the provisions of the UGC Scheme is concerned, unless and until amendments are effected in the University Statutes, the Scheme would not be applicable to the private colleges and the management is not bound to follow the same. 16. After elaborately discussing the provisions of the Kerala University Act and the UGC Scheme, 1998 it was held in para 8 that “unless and until amendments are effected in the University Statutes, the Scheme would not be applicable to the private colleges and the management is not bound to follow the same.” The provisions considered therein include Sections 57 and 68 of the Kerala University Act. After referring to the W.P.(C).No. 29512/2010 -:13:- decision of the Apex Court in University of Delhi v. Raj Singh and others (AIR 1995 SC 336), it was further held in para 9 as follows: “We may also indicate since necessary amendments have not been incorporated in the University statutes it cannot be held that the management of affiliated colleges are bound to follow the same. They are governed by the University Act and Statutes.” Therefore, learned counsel for the petitioner is well founded in his submission that unless the University Act and the Statutes are amended by incorporating the provisions of the UGC Scheme, 1998 the management is not bound to follow the same. 17. Of course, a question may arise that if statute 4 of Chapter 2 of the First Statutes applies only to teachers, then in the absence of any other statute the UGC Scheme may apply or not. Herein, it can be seen that going by Section 57(2), the appointment of Principal can be by direct recruitment. As evident from N. Raveendran's case (2001 (3) KLT 938), unless the Act and the Statute are amended, the UGC Scheme may not apply. Therefore, when the provision enables the College to make direct recruitment, no fetters other than those provided under the Act or the statutes can be put against them. Such fetters are absent here. W.P.(C).No. 29512/2010 -:14:- 18. Therefore, when the educational agency has resorted to make direct recruitment as permitted by Section 57(2) of the Act, it cannot be said in the absence of any provision under the Statute that a selection committee as pointed out by the University in their counter affidavit, will have to conduct the selection. The petitioners are therefore well founded in submitting that such a selection committee was not required to be constituted by them. 19. Then the only question is whether the selection conducted is proper or not. There is no contention that a fair procedure was not adopted by the Educational Agency in making the selection. Admittedly, there is no challenge against the selection of the second petitioner as the Principal also. Therefore, evidently a fair procedure has been adopted by the College. The selection committee included five members, viz. the then Additional Chief Secretary to the Government of Tamil Nadu, the former Vice Chancellor of Sree Sankaracharya University of Sanskrit, the Vicar General, a retired Principal of the Maharajas College, Ernakulam who was also a former member of the Syndicate of the University of Calicut and the Manager of the College. There is no plea that the selection conducted by them was not fair. W.P.(C).No. 29512/2010 -:15:- 20. Hence, the petitioners are entitled to succeed in the writ petition. Ext.P9 is thus quashed. There will be a direction to the University to approve the appointment of the second petitioner as Principal and appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. Till orders are passed, the second petitioner will continue as Drawing and Disbursing Officer, in the light of the interim order passed by this Court. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/