IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933 WP(C).No. 15405 of 2009(U) ------------------------------------- PETITIONER(S): ------------------------ HARIKUTTAN UNNITHAN.C., READER IN PHYSICS, D.B.COLLEGE, SASTHAMCOTTA, KOLLAM DISTRICT. BY DR.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE BY ADVS. SRI.M.CHANDRA BOSE DR.ABRAHAM P.MEACHINKARA SRI.A.RAJASIMHAN RESPONDENT(S): --------------------------- 1. THE TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, T.D.B. OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. 2. DR.K.MOHANKUMAR, PRINCIPAL, D.B.COLLEGE, SASTHAMCOTTA. 3. SRI.D.RAJAMOHAN, PRINCIPAL, D.B.COLLEGE, PARUMALA. 4. DR.B.RADHAKRISHNAPILLA, PRINCIPAL, D.B.COLLEGE, THALAYOLAPARAMBU. 5. THE UNIVERSITY GRANTS COMMISSION (UGC), BAHADUR SHAW ZAFAR MARG, NEW DELHI-2 REPRESENTED BY ITS SECRETARY. 6. THE UNIVERSITY OF KERALA, REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE, THIRUVANANTHAPURAM. 7. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, UNIVERSITY OFFICE, KOTTAYAM. tss W.P.(C) NO.15405/2009 * 8. SRI.C.K.GUPTAN, FORMER PRESIDENT, TRAVANCORE DEVASWOM BOARD, T.D.B. OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. (*DELETED) 9. SRI.P.NARAYANAN, FORMER MEMBER, TRAVANCORE DEVASWOM BOARD, T.D.B.OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. 10. SMT.T.K.SUMATHIKUTTY AMMA, FORMER MEMBER, TRAVANCORE DEVASWOM BOARD, T.D.B.OFFICE, NANTHANCODE, THIRUVANANTHAPURAM. * 11. SMT.S.DEVAKI ANTHARJANAM, PRINCIPAL, SREE AYYAPPAS COLLEGE, ERAMALLICKARA, ALLEPPEY DISTRICT. (DELETED) * 12. SRI.H.SADASIVANPILLA, PRINCIPAL, D.B.COLLEGE, KIZHOOR, KOTTAYAM. (DELETED) * R8,R11,12 DELETED VIDE ORDER DTD. 2.7.10 IN IA. 8860/2010 R1 BY SRI.K.N.VENUGOPALA PANICKER, SC, TDB BY ADV. SRI.G.BIJU, SC R2 & R3 BY SRI.KURIAN GEORGE KANNANTHANAM SR.ADVOCATE R2 & R3 BY ADVS. SRI.TONY GEORGE KANNANTHANAM SRI.MATHEW K.SIMON R4 BY ADVS. SRI.V.SURESH, SRI.G.SUDHEER. R5 BY ADV. SRI.S.KRISHNAMOORTHY, CGC R6 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. R7 BY ADV.SRI. T.A. SHAJI, SC, M.G.UNIVERSITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/06/2011, THE COURT ON 01/07/2011 DELIVERED THE FOLLOWING: tss W.P.(C) NO.15405/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOTIFICATION DTD. 21.1.2009. P2:- COPY OF THE WILLINGNESS SUBMITTED BY THE PETITIONER. P3:- COPY OF THE CALL MEMO DTD. 21.4.2009. P4:- COPY OF THE PROCEEDINGS OF R1 DTD. 2.5.2009. P6:- COPY OF THE RANK LIST. P6:- COPY OF THE BIODATA OF THE PETITIONER. P7:- COPY OF THE PERFORMANCE APPRAISAL REPORT OF THE PETITIONER. P8:- COPY OF THE U.O. RE-DESIGNATING THE PETITIONER AS READER DTD. 14.7.06. P9:- COPY OF THE U.O. APPOINTING THE PETITIONER AS RESEARCH GUIDE. P10:- COPY OF THE DRAFT UGC NORMS. P11:- COPY OF THE M.SC. DEGREE CERTIFICATE OF R3. P12:- COPY OF THE GRADING NORMS OF R1. P13:- COPY OF THE APPOINTMENT ORDER DT. 2.5.2009. P14:- COPY OF THE REQUEST FOR APPROVAL. P15:- COPY OF THE SENIORITY CUM FITNESS CERTIFICATE P16:- COPY OF THE REPRESENTATION . P17:- COPY OF THE NEWS PAPER REPORT. P18:- COPY OF THE AFFIDAVIT FILED BY THE IST RESPONDENT. P19:- COPY OF THE ORDER DTD. 11.11.2010 PASSED BY THE KERALA UNIVERSITY APPELLATE TRIBUNAL IN UNIVERSITY APPEAL NO.2/2010. P20:- COPY OF THE PROCEEDINGS DTD. 26.6.2009. P21:- COPY OF THE NORMS AND PROCEDURE FOR THE SELECTION. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.15405 of 2009-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of July, 2011. JUDGMENT The short question that arises herein is whether, for the appointment of Principal of an aided college by way of promotion, the Management was right in conducting a selection and in effecting appointment after preparing a rank list. Whether it satisfies the requirement of concerned University Act, is the other point argued. 2. The first respondent is the Travancore Devasom Board (for short 'the Board'). Ext.P1 is the notification issued by the Principal informing the decision of the Board to draw a select list and requesting the teachers to forward their willingness. There were three vacancies. The method of appointment is by promotion on the basis of seniority-cum-fitness. The petitioner is a Reader in the Department of Physics, in Devaswom Board College, Sasthamcotta. He also submitted his willingness along with the bio-data. It is pointed out that the petitioner, along with 17 others including respondents 2 to 4 who have been appointed as Principals later, were invited for an interview by memo dated 21.4.2009. There was a selection committee presided over by the President, the 8th respondent herein and two wpc 15405/2009 2 other members of the Board who are respondents 9 and 10 and one Principal of the Devaswom Board College and another Principal of an unaided college, respondents 11 and 12 herein. It is stated that every candidate was directed to give a separate bio-data, filled up in the bio-data sheet issued by the Secretary of the Board. The interview was conducted on 28.4.2009. It is pointed out that thereafter no intimation was given, but later it was known that respondents 2 to 4 joined duty as Principals of three colleges, viz. Devaswom Board Colleges, Sasthamcotta, Perumala and Thalayolaparambu. Ext.P4 is the copy of the proceedings issued by the first respondent Board appointing them and Ext.P5 is the copy of the rank list. 3. The grounds raised in the writ petition are various. It is pointed out that the constitution of the selection committee itself was wrong. It is only for an appointment of a Principal by direct recruitment, that the selection committee has to be constituted and even then, the said procedure was not followed. The petitioner also alleges lack of qualification on the part of the third respondent who is also junior to the petitioner. Finally, it is pointed out that the petitioner is entitled for selection on the basis of seniority-cum-fitness. Even though representations were filed, as those were not taken into consideration, this writ petition has been filed. 4. Ext.P13 is the copy of the appointment order issued to the third wpc 15405/2009 3 respondent and similar orders have been issued in favour of other respondents who were appointed as Principals. It is pointed out that even though the University was requested not to grant approval of the selection and appointment as per Ext.P16 objection, the same also is pending. 5. The contesting respondents have filed separate counter affidavits. 6. Heard learned Senior Counsel for the petitioner Shri S. Gopakumaran Nair, Shri G. Biju, learned Standing Counsel for the first respondent Board, Shri Kurian George Kannanthanam, learned Senior Counsel appearing for respondent Nos. 2 and 3, Shri G. Sudheer, learned counsel appearing for the 4th respondent, Shri S. Krishnamoorthy, learned Standing Counsel for the 5th respondent, learned Counsel appearing for the 6th respondent, Shri T.A. Shaji, learned Standing Counsel for the 7th respondent. 7. The legal points were elaborately argued by the learned Senior Counsel for the petitioner. My attention was invited to the required qualification, to contend that the third respondent is not fully qualified as he is not having Ph.D. and is only having M.Sc. and M.Phil. With regard to the selection conducted by the selection committee also, learned Senior Counsel contended that seniority was never taken into consideration and the only manner by which the appointment could have been effected, is by wpc 15405/2009 4 promotion on the basis of seniority-cum-fitness. My attention was invited to the decision of a Full Bench of this Court in Suresh v. Manager, S.N.M. College (2003 (3) KLT 839 wherein the Full Bench held that senior person should be promoted unless he is found to be unfit. It is therefore submitted that there is gross abuse of the powers by the Management by picking out and selecting the successful candidates. It is also pointed out that the appointment was made just before the then members and President of the Board demitted the office on expiry of their term. It is further pointed out that the norms were never followed by the Board also. 8. Per contra, learned Senior Counsel for second and third respondents, Shri Kurian George Kannanthanam contended that the colleges are situated within the jurisdiction of Kerala University as well as Mahatma Gandhi University and the petitioner is working in a college which comes under the jurisdiction of Kerala University and the third respondent is working in a college situated within the area of jurisdiction of the Mahatma Gandhi University. It is therefore pointed out that the petitioner has no cause of action in challenging the third respondent's appointment as Principal. My attention was invited to the definition of 'College' in Section 2(vii) as well as Section 57 of the Kerala University Act to contend wpc 15405/2009 5 that the 'College' mentioned therein can only be an institution affiliated to the said University and the appointments to be made will be with respect to the colleges under the said University. It is therefore pointed out that the petitioner cannot legally challenge the appointment of the third respondent as Principal, as he is not working in a college coming under the Kerala University. 9. The criteria for promotion is seniority-cum-fitness, going by the provisions of the Kerala University Act as well as the Mahatma Gandhi University Act. As per sub-section (2) of Section 57 of the Kerala University Act, “the appointments of Principals shall be made by 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.” Section 57(3) of the Act provides that “where the appointment of Principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness.” The constitution of a selection committee is required only if the posts of Teacher and Principal are filled up by direct recruitment which is not disputed by the learned counsel appearing for either side. 10. With respect to Mahatma Gandhi University Act, the relevant provision is Section 59. Sub-sections (2) and (3) are in para-materia to the wpc 15405/2009 6 provisions under the Kerala University Act and the same are extracted below: “59. Appointment of teachers in private colleges:- (1) xxxxxxxxx (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.” Therefore, the post of Principal, if filled up by promotion, will have to be on the basis of seniority-cum-fitness. The decision of the Full Bench in Suresh's case (2003 (3) KLT 839) has laid down the relevant principles relating to the concept of seniority-cum-fitness. Therein also, the process initiated by the Management showed that they had proceeded to make a selection and a selection committee was constituted which laid down certain criteria for selection. After referring to Section 59 of the Mahatma Gandhi University Act, this Court examined whether the process of comparative assessment is to be followed, and laid down thus in para 18: “18. Undoubtedly, the post of Principal of a College is pivotal. the Principal is the Head of the Institution. He has to perform the wpc 15405/2009 7 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”. It was held in para 22 further that “the Legislature has given a limited discretion to the management. It can reject a senior person only if he is found to be unfit.” In para 47, it was held as follows: “1. S. 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 S. 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 wpc 15405/2009 8 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 wpc 15405/2009 9 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.” 11. Therefore, the principle of seniority-cum-fitness alone can be followed by the Management when the appointment is made by promotion. There cannot be any selection by preparing a rank list or something like that on the basis of certain norms also for comparative assessment. Herein, what was conducted is an interview of certain candidates. 12. Learned Senior Counsel appearing for the third respondent submitted that the appointment of the third respondent is justified and therefore the same cannot be interfered with even if it is found that the appointment has to be made under the criteria, viz. seniority-cum-fitness. It is essential to find out whether there can be a segregation of the process in respect of various colleges. What was done by the Board is a common selection by constituting a selection committee to fill up all the three vacancies. In Ext.P4, while issuing the proceedings appointing respondents 2 to 4, what is mentioned is that “the Board has invited applications from qualified Selection Grade Lecturers/Readers of the D.B. Colleges for selection as Principals in the above vacancies” and that “the Board has also wpc 15405/2009 10 constituted a Selection Committee, approved norms for the selection, conducted interview and prepared rank list for the promotions on the basis of Seniority-Cum-Fitness for the same.” Evidently, by conducting such a procedure, they have not adhered to the seniority-cum-fitness principle. The fact that a Selection Committee was there and a method of selection was made, cannot be disputed. In the counter affidavit filed by the fourth respondent, it is stated in para 9 that “the selection was made by a Selection Committee. The rank list prepared by the Committee was formally approved by the first respondent.” In para 10, it is also averred that “the Selection Committee was constituted only for the purpose of promotion on the basis of seniority-cum-fitness.” The constitution of the Selection committee is thus admitted by the said respondent. 13. In the counter affidavit filed by the second and third respondents, it is averred in para 5 that “whether it be under the Kerala University or under the M.G. University such Selection Committee is necessary only for the purpose of appointing a Principal by direct recruitment. This was not a case where the post of Principals were filled up by direct recruitment and therefore the constitution of that selection committee or the validity of the same is an irrelevant consideration for the purposes of deciding this case.” wpc 15405/2009 11 14. One of the contentions raised by the learned Senior Counsel for the third respondent is that the petitioner is not admittedly the seniormost in the colleges under the Board and that only a teacher who has got real grievance, coming within the area of operation of Mahatma University, alone can challenge the appointment of the third respondent and that in the absence of such a challenge, the third respondent need not be disturbed. Evidently, the process was a common one. Apart from that, the details as to whether the Board has considered the claims of senior persons in respect of each of the colleges under the two Universities, are absent and there is no such plea for the Board. Therefore, the said contention also cannot be accepted. A reading of the order passed by the University Appellate Tribunal, Ext.P19 will show that Appeal No.8/2009 was filed by Dr.P.P. Chandra Sekharan Pillai, Lecturer (Selection Grade), D.B. College, Thalayolaparambu against the three promotions and Appeal No.9/2009 was also filed by another Selection Grade Lecturer, viz. Dr.S. Sivakumar, of the same college. Hence, there was a challenge against the appointment of the third respondent and others, apart from the one made by the petitioner, by other teachers. 15. In the counter affidavit filed by the Secretary of the Board, it is mentioned in para 7 that even though respondents 2 to 4 were appointed, so wpc 15405/2009 12 far the University has not approved it. In para 8 it is mentioned that “as per the provisions of the statute concerned, for the appointment to the post of principal by promotion, no selection committee is required to be constituted. It is required only in the case of appointment by direct recruitment.” In para 9, the process of conducting the selection including interview, has been explained and finally it is averred that the selection is made strictly in accordance with the norms and the rank list is prepared and published by the selection committee after fully satisfying the qualification and fitness of the candidates. In para 10 also it is repeatedly pointed out that a selection committee is required only for the purpose of direct recruitment and for the appointment of Principals, a Selection Committee is not envisaged. On the admitted facts, such a contention really exposes the infirmities in the process. With regard to the enlisting of respondents 11 and 12 in the Selection Committee, what is explained is that the services of two Senior Principals who have long experience, also made use of. The said procedure is clearly against the Act itself. 16. These averments are totally contradictory. On the one hand, it is stated that the Selection Committee is not required, but on the other hand they are justifying the inclusion of respondents 11 and 12 who are totally outsiders as far as the appointment of Principals is concerned, as the Board wpc 15405/2009 13 alone is the appointing authority. 17. The averments contained in para 21 of the counter affidavit filed by the Secretary of the Board are also significant. It is mentioned therein that “the Travancore Devaswom Board is having four colleges under its management and the several of its Principals who were selected on the seniority basis alone proved to be a failure in discharging their duties and responsibilities successfully and in certain cases they were suspended and disciplinary action had been taken against them.” It is further mentioned that “in order to ensure a fair selection by assessing the fitness and merit of teachers, the service of two Principals having long and meritorious service were also made use of. No selection committee as required in the statutes was constituted as this was not a direct recruitment. 18. The above statements, therefore, cannot have any legal backing, going by the provisions of the Kerala University Act as well as Mahatma Gandhi University Act and the principles reiterated by the Full Bench of this Court in Suresh's case (2003(3) KLT 839). 19. Evidently, with respect to the four colleges under different Universities, only a common selection was made. Therefore, the process of appointment of Principal in respect of the colleges under the two Universities were inter-linked and they cannot be separated even though wpc 15405/2009 14 learned Senior Counsel Shri Kurian George Kannanthanam contended that the petitioner cannot have a grievance against the appointment of the third respondent which is under another University. As the process of selection was only one and the same and as the entire steps were taken by the Board by treating these four colleges under the two Universities together by issuing memo to the teachers to express their willingness, etc. they cannot be segregated. 20. The further question is whether the challenge is premature in the sense that the University has not approved it so far. It appears that there was a challenge against the appointments of respondents 2 to 4 itself, before the University Appellate Tribunal, at the instance of certain other teachers, and Ext.P19 is the order passed by the Tribunal. The Tribunal took the view that the appeals are not maintainable at this stage, as the appointments are yet to be approved by the University and the right to file appeal accrues only after that. Therefore, the argument that the petitioner has an effective remedy to approach the Tribunal, after waiting for the decision of the University, need not deter this Court from considering the matter on legal grounds. 21. Evidently, there is a fundamental flaw in the entire proceedings and the same vitiates the whole proceedings undertaken by the Board itself. wpc 15405/2009 15 This Court, at this stage, is not therefore considering the contentions regarding want of qualification and other factors in respect of any of the parties. Since there is a fundamental flaw in the proceedings, this Court will be well justified in interfering with the proceedings, in this writ petition. 22. Therefore, the impugned orders, Exts.P4, P5 and P13 are quashed. There will be a direction to the first respondent Board to appoint the Principals in terms of the provisions of the respective University Acts and in the light of the principle laid down by a Full Bench of this Court in Suresh's case (2003 (3) KLT 839), on the basis of seniority-cum-fitness. Respondents 2 to 4 are now continuing as Principals in charge and as Drawing and Disbursing Officers. The process will be completed within a period of three months and they will continue as Principal in charge and Drawing and Disbursing Officers in the meanwhile. The writ petition is allowed to the above extent. No costs. (T.R. Ramachandran Nair, Judge.) kav/