IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WA.No. 841 of 2008(E) --------------------- AGAINST THE JUDGEMENT IN WPC.14662/2006 Dated 25/03/2008 .................... APPELLANT(S): RESPONDENT NO.2 IN THE WPC ---------------------------------------------------------------------- THE MANAGER, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. BY ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.JIJO PAUL RESPONDENT(S): PETITIONER & RESPONDENTS 1 & 3 TO 7 IN THE WPC ----------------------------------------------------------------------------------------------------- 1. SRI.V.I.CHACKO, PRINCIPAL, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. 2. THE MAHATMA GANDHI UNIVERSITY REP. BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM. 3. SRI.SABU JOHN, LECTURER(SELECTION GRADE) DEPARTMENT OF PHYSICS, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. 4. DR.K.K.JOHN, LECTURER (SELECTION GRADE) DEPARTMENT OF COMMERCE, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. 5. SHRI.ABRAHAM V.KURIAKOSE, LECTURER (SELECTION GRADE), DEPARTMENT OF COMMERCE, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. 6. SHRI.SHAJI ABRAHAM, LECTURER (SELECTION GRADE), DEPARTMENT OF PHYSICS, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. 7. THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. ADV. SRI.K.JAYAKUMAR FOR R1 ADV. SRI. T.A. SHAJI, STANDING COUNSEL FOR R2 BYGOVERNMENT PLEADER SMT. R. BINDU FOR R7 ADV. SRI.K.B.GANGESH FOR R3 TO R6 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08/09/2009, ALONG WITH W.A. 842/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A. Nos. 841 & 842 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009. JUDGMENT Balakrishnan Nair, J, These appeals are filed by the second respondent and the fifth respondent respectively challenging the judgment of the learned Single Judge in the writ petition. Since both the appeals are directed against the very same judgment, they are heard and disposed of by this common judgment. W.A. 841 of 2008. 2. This appeal is treated as the main case for the purpose of referring to the facts and contentions. 3. The appellant is the Manager of St.Thomas College, Pazhavangadi, Ranni. Anticipating a vacancy in the post of Principal of the said College arising on 1.4.2005, steps were taken by the appellant to fill up the same. Options were called for from willing candidates for considering for selection. A Selection Committee consisting of two retired W.As.841 & 842/2008. 2 Principals and one retired Professor was constituted to find out the suitable candidate for filling up the post of Principal. The Committee suggested the name of the first respondent. Appellant accepted the said suggestion and appointed the said respondent as the Principal of the College by Ext.P1 order dated 31.3.2005. The appointment was to be effective from 1.4.2005 to 31.3.2008. He was not the senoior-most Lecturer in the College. Therefore, his appointment was challenged before the University Appellate Tribunal by respondents 3 to 6. Respondents 3 to 5 have filed one appeal and the sixth respondent has filed another appeal. The appellants before the Tribunal contended that the selection should have been made in accordance with Section 59(3) of the Mahatma Gandhi University Act, following the principle of seniority cum fitness. The first respondent and the appellant resisted the appeals contending that the selection was made to find out the most meritorious candidate. They also relied on the minority right under Article 30(1) of the Constitution of India to sustain the W.As.841 & 842/2008. 3 appointment of the first respondent. Ext.P3 is the counter affidavit filed by the appellant before the Tribunal. The University Appellate Tribunal, after hearing both sides, rejected both the contentions of the first respondent and the Manager and allowed the appeals by Ext.P5 common order. The appointment of the first respondent was set aside and a direction was issued to promote the sixth respondent, the senior most Selection Grade Lecturer as Principal. The appellant Manager did not challenge Ext.P5, but decided to go by the order of the Tribunal. Since the sixth respondent Sri.Shaji Abraham and other seniors backed out, as they were unwilling to shoulder the responsibilities of the Principal, by giving relinquishment letters, the fifth respondent was appointed as Principal by Ext.P6 order dated 25.3.2006 with effect from 1.4.2005. Challenging Exts.P5 and P6, the first respondent filed the writ petition. 4. The appellant and the fifth respondent resisted the prayers in the writ petition by filing separate counter affidavits. W.As.841 & 842/2008. 4 The learned Single Judge, after hearing both sides, allowed the writ petition by quashing Exts.P5 and P6. A further direction was issued to the Manager to appoint the first respondent as Principal for a further period of two years, so that he could complete the three year tenure provided in Ext.P1. Feeling aggrieved by the above judgment, the Manager has preferred this appeal. The connected writ appeal is filed by the fifth respondent herein. 5. We heard learned Senior Counsel Sri.K.R.B. Kaimal for the appellant, and also heard learned counsel Sri.K.B.Gangesh appearing for the fifth respondent herein, who supported the appellant. Learned counsel for the first respondent Sri.K.Jayakumar supported the judgment under appeal. We also had the benefit of hearing learned Government Pleader for the State and the learned Standing Counsel for the University. 6. Learned Senior Counsel for the appellant submitted that the selection made in 2005, pursuant to which the first respondent was appointed as Principal, was not done asserting the W.As.841 & 842/2008. 5 minority right of the management under Article 30(1) of the Constitution of India. On a wrong understanding of Section 59(3) of the M.G. University Act, the Management caused the selection to be made by the Selection Committee of the best candidate and made the appointment. The Tribunal interfered with the selection repelling the contentions of the management that it is entitled to appoint the best candidate based on merit and to appoint any candidate of its choice invoking its rights under Article 30(1) of the Constitution. Learned Single Judge proceeded on the footing that the Tribunal interfered with the matter repelling the claim of the management based on Article 30(1) of the Constitution of India. The Tribunal relied upon the decision of the Division Bench of this court reported in Rev.Fr.Daniel Kuzhithadathil v. Jose (2003(2) K.L.T. 858). The said decision was later reversed by the Apex Court in the decision reported in Malankara Syrian Catholic College v. Jose (2007(1) K.L.T. 22). So the decision of the Tribunal was set aside by the learned Single Judge and the W.As.841 & 842/2008. 6 consequential proceeding of the Manager, Ext.P6, was also quashed. In fact the contention regarding minority right of the management was raised before the Tribunal only as an alternative contention, it is submitted. The main ground, based on which the impugned selection was supported, was not considered by the learned Single Judge, it is pointed out by the learned Senior Counsel. Learned counsel Sri.K.B. Gangesh submitted that in any view of the matter the direction of the learned Single Judge to the Manager to appoint the first respondent for a further period of two years is unjustified. The original tenure of the first respondent is already over, and even if he is wrongly terminated in the meantime, he is entitled to only the consequential service benefits and not extension of the term of appointment. 7. Learned counsel for the first respondent on the other hand fully supported the decision of the learned Single Judge. The first respondent was supported by the management before the Tribunal by strongly asserting its rights under Article 30(1) of the W.As.841 & 842/2008. 7 Constitution. But the Tribunal relied on the Division Bench decision of this court in Rev.Fr.Daniel Kuzhithadathil's case and held that an aided College cannot claim minority right and appoint a person of its choice to the post of Principal. Now the said decision is reversed. The learned Single Judge in his discretion has passed an order in favour of the first respondent directing to grant him appointment for a further period of two years. It is a valid and sound exercise of discretion, with which the appellate court may not interfere, it is submitted. 8. Before referring to the rival submissions, we will refer to the relevant statutory provision. Section 59 reads as follows: “59. Appointment of teachers in private Colleges.- (1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government. (1A) 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. W.As.841 & 842/2008. 8 (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 (IA) and (2), 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, 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 advertisied 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 this 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 W.As.841 & 842/2008. 9 section may appeal to the Appellate Tribunal.” Going by Section 59(3), the senior most hand has to be appointed as Principal unless he is shown to be unfit. But it is well settled in law that a minority educational institution can appoint any qualified person as Principal, whether he is senior or not. In this case, the Manager appointed the first respondent as Principal in 2005 overlooking several of his seniors. The appointment was preceded by a selection made by a Committee constituted by the management. Such selection could have been made only if the Manager decided to make the appointment invoking his power under Article 30(1) of the Constitution of India. If that be so, the decision of the Tribunal to interfere with the same on the basis of a decision, which was reversed by the Apex Court, was unsustainable. When the Apex Court makes a declaration of law, it is taken that the law was always like that, unless the Apex Court makes specific orders, that law declared by it will operate only W.As.841 & 842/2008. 10 prospectively. In this case there was no such order made by the Apex Court. Therefore, the learned Single Judge has rightly followed the decision of the Apex Court and set aside the decision of the Tribunal. If Ext.P5 is set aside, Ext.P6, being dependent proceeding, will no longer be valid. 9. So we uphold the decision of the learned Single Judge to the extent it quashes Exts.P5 and P6. But regarding the consequential relief, we feel that the direction of the learned Single Judge requires modification. The first respondent was appointed from 1.4.2005 to 31.3.2008. On 25.3.2006 he was wrongly terminated as a result of the decision of the Tribunal. So he should be treated as having continued in service without break. Since he has not worked, there is discretion for this court to order payment of salary to him or treat his service as notional without arrears of salary. But we think that this court cannot exercise the discretion available under Article 226 of the Constitution to order extension of the appointment of the first respondent beyond 31.3.2008. A W.As.841 & 842/2008. 11 wrongly terminated employee can claim that he should be treated as having continued in service during the tenure available to him. He has a right and the employer has got a corresponding duty in this regard. If there is failure of duty, then this Court can enforce the said right by issuing a mandamus to the employer, provided he is amenable to the writ jurisdiction of this court. But we find that the first respondent has not got any legal right to continue beyond his normal tenure for the reason that he was wrongly terminated, before he completed his tenure. In the absence of a legal right in the petitioner and corresponding duty on the employer, this court is not justified in issuing any direction to engage the first respondent beyond his normal tenure. Therefore, the direction of the learned Single Judge to appoint the first respondent for a further period of two years made in the judgment under appeal is set aside. But it is declared that the first respondent shall be treated as having continued in service without break from 1.4.2005 to 31.3.2008 and he shall be entitled to all consequential service benefits including W.As.841 & 842/2008. 12 arrears of salary. The appellant shall take all necessary steps as are required under the provisions of the University Act and Statutes, so that the first respondent gets monetary benefits arising out of the above declaration. Subject to the above modification, the judgment of the learned Single Judge is affirmed. W.A. 842 of 2008. It is ordered that the judgment in W.A.841 of 2008 will govern this Writ Appeal also. The Writ Appeals are disposed of as above. K. BALAKRISHNAN NAIR, Judge P. Bhavadasan, Judge sb.