IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 2643 of 2009(M) ------------------------- PETITIONER(S): --------------- 1. THE MANAGER, MALANKARA SYRIAN CATHOLIC COLLEGES ASSOCIATION, (MAJOR ARCH DIOCESE OF TRIVANDRUM)PATTOM, THIRUVANANTHAPURAM 695004 2. REV.FR.M.G.MATHEW,LECUTRER (SELECTION GRADE) IN FHENCH,MAR IVANIOS COLLEGE, THIRUVANANTHAPURAM.APPOINTED AS PRINCIPAL AND DRAWING-CUM-DISBURSING OFFICER OF MR.IVANIOS COLLEGE. 3. DR.GEORGE T.JOHN,LECURER (SELECTION GRADE) IN CHEMISTRY ST.JOHNS COLLEGE, ANCHAL, APPONTED AS PRINCIPAL AND DRAWING-CUM-DISBURSING OFFICER OF ST.JOHNS COLLEGE. 4. REV.SR.DR.MERCYKUTTY.A.LECTURER (SELECTIONGRADE) IN MATHEMATICS, MAR.THEOPHILUS TRAINING COLLEGE,THIRUVANANTHAPURAM APPOINTED AS PRINCIPAL AND DRAWING-CUM-DISBURSING OFFICER OF MAR THEOPHILUS TRAINIGN COLLEGE. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENT(S): --------------- 1. THE KERALA UNIVERSITY,THIRUVANANTHAPURAM RESENTED BY ITS REGISTRAR 2. DR.A.JAYAKRISHNAN, THE VICE CHANCELLOR, KERALA UNIVERSITY, THIRUVANANTHAPURAM. 3. SRI.P.A.HASHIM, REGISTRAR, KERALA, UNIVERSITY, THIRUVANANTHAPURAM. 4. SRI.CYRIL JOHNSON, THE CHAIRMAN, STANDING COMMITTEE ON TEACHING AND NON-TEACHING STAFF OF PRIVATE COLLEGES, KERALA, UNIVERSITY, THIRUVANANTHAPURAM. 5. THE SYNDICATE, KERALA UNIVERSITY, THIRUVANANTHAPURAM REPRESENTED BY ITS CONVENOR THE VICE CHANCELLOR ADV. SRI.V.SAJITH KUMAR, SC. FOR R1-5 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/07/2009, THE COURT ON 28/08/2009 DELIVERED THE FOLLOWING: WP(C).No. 8434 of 2007(S) A P P E N D I X PETITIONER'S EXTS: EXT.P1 PHOTOCOPY OF THE APPOINTMENT ORDER DATED 31/05/2000 EXT.P2 PHOTOCOPY OF THE ORDER DATED 6/9/2000 APPROVING THE APPOINTMENT OF REV.FR.RAJU KATTUKALLIL EXT.P3 PHOTOCOPY OF THE APPOINTMENT ORDER DATED 6/6/2000 EXT.P4 PHOTOCOPY OF THE ORDER DATED 2/9/2000 APPROVING THE APPOINTMENT OF REV.FR.DANIEL KUZHITHADATHIL EXT.P5 COPY OF THE LETTER DATED 17/3/2006 INTIMATING THE APPOINTMENT OF REV.FR.DANIEL KUZHITHADATHIL AS SECRETARY OF THE MANAGEMENT. EXT.P6 COPY OF THE LETTER DATED 01/04/2008 INTIMATING THE UNIVERSITY THAT THE SECRETARY IS RELIEVED. EXT.P7 PHOTOCOPY OF THE JUDGMENT OF THE KERALA UNIVERSITY APPELLATE TRIBUNAL. EXT.P8 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER AS PRINCIPAL DT.30/05/2007 EXT.P9 PHOTOCOPY OF THE ORDER APPOINTING THE 2ND PETITIONER AS DRAWING AND DISBURSING OFFICER DATED 04/06/2007 EXT.P10 PHOTOCOPY OF THE JUDGMENT DATED 12/7/2007 IN WPC 18778/2007 EXT.P11 PHOTOCOPY OF THE PROCEEDINGS OF THE VICE CHANCELLOR DATED 25/08/2007 EXT.P12 PHOTOCOPY OF THE REPLY RECEIVED FROM THE REGISTRAR DATED 30/05/2008 EXT.P13 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE 3RD PETITIONER AS PRINCIPAL DT.30/03/2007 WP(C).No. 2643 of 2009(M) EXT.P14 PHOTOCOPY OF THE ORDER APPOINTING THE 3RD PETITIONER AS DRAWING AND DISBURSING OFFICER DATED 30/03/2007 EXT.P15 PHOTOCOPY OF THE APPOINTMENT ORDER OF THE 4TH PETITIONER AS PRINCIPAL DT.27/04/2007 EXT.P16 PHOTOCOPY OF THE ORDER APPOINTING THE 4TH PETITIONER AS DRAWING AND DISBURSING OFFICER DATED 04/06/2007 EXT.P17 PHOTOCOPY OF THE INTERIM ORDER DATED 14/02/2008 IN WPC 5300/08 EXT.P18 PHOTOCOPY OF THE INTERIM ORDER DATED 14/02/2008 IN WPC 5393/08 EXT.P19 PHOTOCOPY OF THE INTERIM ORDER DATED 14/2/08 IN WPC 5334/2008 EXT.P20 PHOTOCOPY OF THE JUDGMENT IN WPC 5300 OF 2008 AND CONNECTED CASES EXT.P21 PHOTOCOPY OF THE LETTER DATED 03/11/2008 EXT.P22 PHOTOCOPY OF THE REPLY SUBMITTED ON 7/11/2008 EXT.P23 PHOTOCOPY OF THE RELEVANT EXTRACT OF THE LETTER DELIVERY BOOK MAINTAINED BY THE 1ST PETITIONER EXT.P24 PHOTOCOPY OF THE STATEMENT GIVEN BY SHRI JOHN MARKOSE EXT.P25 PHTOCOPY OF I.A.NO.16416/2008 FILED IN WPC 5300/2008 EXT.P26 PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED IN IA 16416/2008 EXT.P27 PHOTOCOPY OF THE ORDER DATED 8/1/2009 IN I.A 16416/2008 EXT.P28 PHOTOCOPY OF THE REJECTION ORDER AND THE ANNEXURE PROVIDING THE REASONS FOR THE REJECTION EXT.P29 PHOTOCOPY OF LETTER NO.M.SC 25/2007/T.S SENT BY THE SECRETARY TO THE REGISTRAR ON 13/6/2007 WP(C).No. 2643 of 2009(M) EXT.P30 PHTOCOPY OF THE REPLY GIVEN BY THE REGISTRAR TO THE SECRETARY ON 16/7/2007 EXT.P31 PHOTOCOPY OF THE COMMUNICATION SENT BY THE REGISTRAR TO THE SECRETARY ON 18/01/2008 EXT.P32 PHOTOCOPY OF THE LETTER NO.MSC-25/2007/TS SENT BY THE SECRETARY TO THE REGISTRAR ON 23/01/2008 EXT.P33 PHOTOCOPY OF THE ORDER NO.AC.F.1/011458/2006 DATED 20/11/2007 PASSED BY THE KERALA UNIVERSITY REGISTRAR EXT.P34 PHOTOCOPY OF THE ORDER NO.ACF1/011458/06 DATED 9/10/2007 PASSED BY THE REGISTRAR OF THE UNIVERSITY OF KERALA EXT.P35 PHTOCOPY OF THE ORDER NO.ACF1/011390/2007 DATED 25/06/2008 PASSED BY THE REGISTRAR OF THE KERALA UNIVERSITY. EXT.P36 PHOTOCOPY OF THE REPLY AFFIDAVIT FILED BY THE PETITIONER DATED 09/07/2007. \\TRUE COPY// P.A TO JUDGE T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.2643 of 2009-M - - - - -- - - - - - - - - - - - - - - - - - - - - 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