IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WP(C).No. 3434 of 2009(H) ------------------------------------- PETITIONER: ------------------- ST.XAVIER'S COLLEGE, THUMBA, THIRUVANANTHAPURAM REP. BY ITS MANAGER FR.MATHEW NAMPLAPARAMBIL S.J. BY ADVS. MR.V.M.KURIAN, MR.MATHEW B. KURIAN, MR.K.T.THOMAS. RESPONDENTS: ------------------------ 1. GOVERNMENT OF KERALA, REP.BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. UNIVERSITY OF KERALA, REP. BY THE REGISTRAR, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, KOLLAM. R1 & R3 BY GOVT. PLEADER MR. V.T.K. MOHANAN, R2 BY MR. M. RAJAGOPALAN NAIR, S.C, MR.V.SAJITH KUMAR,S.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2009,ALONG WITH W.P.(C). NO. 10727 OF 2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.3434/2009-H: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER G.O.(MS).313/87/H. EDN. DTD. 28/12/1987 ISSUED BY THE R.1. APPROVING THE COLLEGE AS A BACKWARD MINORITY COMMUNITY INSTITUTION AND DIRECTING EXECUTION OF FRESH DIRECT PAYMENT AGREEMENT. EXT.P.2: COPY OF THE REQUEST FOR APPROVAL MADE BEFORE THE R.2. AS PER LETTER DTD. 30/03/2007. EXT.P.3: COPY OF THE COUNTER AFFIDAVIT DTD. 24/09/2007 FILED BY THE R.2. IN W.P. (C).NO.2433/2007. EXT.P.4: COPY OF THE APPOINTMENT ORDER DTD. 29/03/2008 ISSUED TO FR. SUNNY JOSE S.J. EXT.P.5: COPY OF THE APPLICATION FOR APPROVAL OF THE APPOINTMENT DTD. 29/03/2008 SUBMITTED TO THE R.2. EXT.P.6: COPY OF THE LETTER DTD. 07/04/2008 ISSUED BY THE R.2. EXT.P.7: COPY OF THE REPLY DTD. 10/04/2008 SENT TO THE R.2. EXT.P.8: COPY OF THE REPLY DTD. 09/09/2008. EXT.P.9: COPY OF THE JUDGMENT DTD. 19/11/2008 IN W.P.(C).NO.34028/2008. EXT.P.10: COPY OF THE JUDGMENT DTD. 28/11/2008 IN W.P.(C).NO.24433/2007. EXT.P.11: COPY OF THE ORDER DTD. 24/01/2009 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos. 3434/2009-H & 10727/2009-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009. JUDGMENT These two writ petitions are filed by the same petitioner and since the issues raised are the same, they are disposed of by a common judgment. The matter relates to approval of appointment of Principals of St. Xavier’s College, Thumba, Thiruvananthapuram which is a private aided college established and administered by the Catholic denomination of the Christian Community and affiliated to the University of Kerala. The college was started in the year 1964 as a Junior College and was upgraded in the year 1997. 2. The dispute relates to approval of appointment as Principal of Fr. Joseph Mathew S.J. in the retirement vacancy of Fr. K.P. Mathew S.J. with effect from the afternoon of 30.3.2007 and Fr. Sunny Jose S.J. who was appointed as Principal on the retirement of Fr. Joseph Mathew S.J. with effect from 31.3.2008. 3. It is the case of the petitioner that the appointments were made in exercise of the rights available to the management under Article 30(1) of the wpc 3434 & 10727 of 2009 2 Constitution of India. The petitioner is relying upon Ext.P1 order dated 28.12.1987 passed by the Government sanctioning re-classification of the colleges, viz. St. Xavier’s College, Thiruvananthapuram and All Saints College, Thiruvananthapuram as Backward Minority Community Institutions. 4. The approvals have been rejected mainly on the ground that no reliance can be placed on Article 30(1) of the Constitution of India by the management in the absence of a declaration of minority status. Other contentions have also been placed on the merits. The petitioner had to approach this court earlier and the present order is passed by the University pursuant to the directions issued by this court in the earlier judgments. The petitioner had filed W.P.(C) No.24433/2007 since there was undue delay in granting approval of appointment of Fr. Joseph Mathew S.J. as Principal. The counter affidavit filed by the University in the said writ petition is produced as Ext.P3 in both cases. The case of the petitioner is that no dispute was raised against the claim made by the petitioner on the basis of Ext.P1, that the Government has approved the petitioner institution as a Backward Minority educational institution. The only contention raised was relying upon Section 57(3) of the Kerala University Act. It is therefore submitted that the directions issued in the above judgment after recording wpc 3434 & 10727 of 2009 3 the minority status of the petitioner, are binding on the University and they cannot adopt a contrary stand in the present writ petitions. 5. Reliance is also placed on the decision of this court in Manager, Malankara Syrian Catholic Colleges Association and others v. Kerala University (2009 (4) KHC 241). It is submitted that the issues raised herein are covered by the dictum laid down therein. 6. Before going into further aspects in the matter, I may refer to Exts.P9 and P10 judgments produced in W.P.(C) No.3434/2009 between the parties in relation to the very same appointments. In Ext.P9 judgment, this court directed the University to consider and pass appropriate orders in the application for approval of appointment of Fr. Sunny Jose S.J. as Principal of the College. It was specifically directed that Ext.P1 order declaring the petitioner’s college as a minority educational institution, shall also be duly adverted to. A reading of Ext.P10 judgment shows that this court accepted the fact that the petitioner is a minority educational institution. While referring to the stand of the University that the petitioner has not produced seniority cum fitness certificate, it is observed in para 3 as follows: “The University’s stand appears that the petitioner has not produced seniority cum fitness certificate. Being a minority educational institution, they have the freedom to make appointment of any wpc 3434 & 10727 of 2009 4 suitable qualified candidate irrespective of seniority and there is no justification for the insistence of the University for seniority cum fitness certificate as done in Ext.P7.” 7. In spite of the above findings, which are binding on the University, the stand taken in the impugned orders is that the right of the minority aided colleges like the petitioner can only be subject to the rules and regulations framed by the University. No declaration has been obtained to the effect that St. Xavier’s College, Thumba is having minority status. The National Commission for Minority Educational Institutions Act, 2006 was not brought to the notice of this court while rendering Exts.P9 and P10 judgments. The fact that the college had not obtained minority status from the competent authority were also not brought before the court. Reliance is placed on various judgments of the Apex Court also in the said proceedings. 8. Learned counsel for the petitioner submitted that all these questions are concluded by the findings contained in Exts.P9 and P10 judgments and the decision in Manager, Malankara Syrian Catholic Colleges Association’s case (2009 (4) KHC 241). 9. Learned Standing Counsel for the University submitted that Ext.P1 cannot be accepted as a declaration for minority status. It is further submitted that the relinquishment by any senior claimants, if any, have not wpc 3434 & 10727 of 2009 5 been produced by the petitioner. Section 57(3) of the Act is applicable to the college and therefore the appointment can only be on the basis of seniority –cum-fitness. As regards the issue regarding declaration of minority status, learned counsel for the petitioner submitted that the said issue is also covered against the University 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 (2009 (2) KHC 41). 10. A reading of Ext.P1 order passed by the Government itself shows that the managements of the two colleges, viz. St. Xavier’s College, Trivandrum and All Saints College, Trivandrum moved the Government for reclassification of the above educational institutions as Backward Minority Community Institutions. By Ext.P1, the Government, after considering the question in detail, conveyed their concurrence to those managements to execute fresh agreements with the Government also. Therefore, it is clear from Ext.P1 that these two colleges were reclassified as Backward Minority Community Institutions by the Government itself. So there cannot be any doubt that the institutions are run by a minority community which is entitled for the benefit of Article 30(1) of the Constitution of India, in the matter of appointment of Principal. In Exts.P9 and P10 judgments, this wpc 3434 & 10727 of 2009 6 court directed the University to consider the request in the light of the fact that Ext.P1 re-classifies them also as Backward Minority Community Institutions. The above judgments have become final. 11. Going by the counter affidavit filed by in the earlier writ petitions also, it is clear that the validity of Ext.P1 and the fact that the institutions are run by a minority community, are not disputed by the University. The only contention raised was that seniority cum fitness principle has not been followed. Therefore, the findings rendered by the judgments of this court as Exts.P9 and P10 constitute res judicata as regards the said aspect. The University cannot ignore the findings rendered therein and the directions issued by this court in the said judgments and cannot take a technical stand that a further declaration under the National Commission for Minority Educational Institutions, 2006 is required. 12. In St. Berkman’s College’s case (2009 (2) KHC 41), the Division Bench partly reversed the decision of a learned Single Judge of this court in Manager, Assumption College and another v. State of Kerala (2008 (1) KLT 235). Therein, the learned Single Judge had taken the view that the Manager is bound to comply with the mandatory provisions contained in Section 59(3) of the M.G. University Act which was not accepted by the Division Bench. It was held by the Division Bench wpc 3434 & 10727 of 2009 7 that “we are prima facie satisfied that they are minority educational institutions entitled to get production under Article 30(1) of the Constitution of India. In para 20 of the judgment in Manager, Malankara Syrian Catholic Colleges Association's case (2009 (4) KHC 241), this Court has taken the view that in the light of decision in St. Berkman’s College’s Case (supra), the insistence by the University that the petitioner should obtain a declaration under the Central Act, viz. National Commission for Minority Educational Institutions Act, 2004, cannot be sustained. The same position is applicable as far as these cases also are concerned. 13. Therefore, the contention of the University that in the absence of a formal declaration of minority status under the National Commission for Minority Educational Institutions Act, 2004 they are not entitled to get the benefit of Article 30(1) of the Constitution of India, cannot be accepted. In fact, in para 9 of the counter affidavit, it is submitted that the college belongs to Christian denomination/sect and this factual aspect does not require proof by a declaration. It is further pointed out that the claim for privileges/rights under Article 30(1) would fail on the application of the test of deprivation. Reliance is placed on the decision of a Constitution Bench of the Apex Court in T.M.A. Pai Foundation v. State of Karnataka wpc 3434 & 10727 of 2009 8 {(2002) 8 SCC 481) also. All these aspects have been considered in Manager, Malankara Syrian Catholic Colleges Association’s case (supra) wherein the University is a party. It was held thus in para 13: “When the Apex Court has declared that Section 57(3) cannot 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.” In para 17 it was further held thus: “Therefore, the management of a minority institution is free to find wpc 3434 & 10727 of 2009 9 out a qualified person and has got very wide freedom to choose the personnel for holding such post. The only restriction is regarding the qualification. Therefore, the absence of a regulation framed by the management itself will not defeat their rights to make the appointment, as contended by the learned Standing Counsel for the University.” Therefore, the reliance placed on Section 57(3) of the Act to deny the grant of approval cannot be accepted. It is not by virtue of direct payment agreement that the Principal was appointed by the college. Since it is a minority education institution, the right to appoint the Principal is vested on the institution itself and Section 57(3) of the Act cannot be made applicable to the petitioner’s institution as contended by the University. In Secretary. Malankara Syrian Catholic College v. T. Jose {(2007) 1 SCC 386), in para 29 the very same question has been considered 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 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 run educational institutions even if they are aided.” wpc 3434 & 10727 of 2009 10 14. Since the legal issues raised by the petitioners are covered in their favour in the light of the decision of this court in Manager, Malankara Syrian Catholic Colleges Association’s case (2009 (4) KHC 241) and especially in the light of the directions issued by this court in Exts..P9 and P10 judgments, the petitioners are entitled to succeed in these writ petitions. 15. Therefore, the impugned order produced as Exts.P11 and P15 in the writ petitions are quashed. There will be a direction to the respondents to approve the appointments of Fr. Joseph Mathew S.J. as Principal with effect from the afternoon of 30.3.2007 and Fr. Sunny Jose S.J. as Principal with effect from 31.3.2008 and appropriate orders shall be passed within two months from the date of receipt of a copy of this judgment. On such grant of approval, the respective Principals will be entitled for consequential monetary benefits also. Till orders are passed as such, Fr. Sunny Jose S.J. is permitted to continue as Principal in St. Xavier’s College, Thumba and as the Drawing and Disbursing Officer. No costs. (T.R. Ramachandran Nair, Judge.) kav/