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1988 DIGILAW 160 (KER)

Joseph Thomas v. Rev Fr Joseph Nettunilam

1988-03-21

K.SREEDHARAN

body1988
JUDGMENT K. Sreedharan, J. 1. Petitioner and 4th respondent are Professors working in St. George's College, Aruvithura of which the first respondent is the Manager. When a vacancy of Principal arose the petitioner who is the seniormost professor was not preferred. Instead the 4th respondent, a junior, third person in the seniority list was appointed as Principal. That appointment was approved by the University. Petitioner challenges Ext.P2 order by which the University granted approval to the appointment of the 4th respondent. 2. S.59 of the Gandhiji University Act, 1985 as amended by Gandhiji University Amendment and Special Provisions Ordinance 5 of 1988 provide for the appointment of Principal on the basis of seniority cum fitness. How the appointment on the basis of seniority cum fitness is to be made came up for consideration before the Full Bench in Rev. Mother Provincial & Others v. State of Kerala & Others (1969 K.L.T. 749) while dealing with the similar provision contained in the Kerala University Act. Their Lordships stated the law as follows:- "As it is, however, the provisions for an appeal is so unreasonable an interference with the right of management that the attack both under Art.19(1)(f) and under Art.30(1) must prevail. At the same time we would like to make it clear that the test of seniority cum fitness prescribed in the sub - section does not mean that promotion is to be on the principle of seniority subject to fitness which is the test adopted for non. selection post in the several service rules of the State. Seniority cum fitness means that due and equal regard should be paid both to seniority and to fitness, and since fitness is a matter of degree, it would, appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment than he is. Seniority cum fitness means that due and equal regard should be paid both to seniority and to fitness, and since fitness is a matter of degree, it would, appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment than he is. We also think that, notwithstanding the wording of the sub-section which would appear to permit of direct recruitment only if there is no persons available for promotion possessing the necessary qualifications, if the basis of the promotion is to be seniority-cum fitness, it would be open to the management to resort to appointment otherwise than by promotion if there is no person fit for promotion-An unfit person is not entitled to promotion merely because he possesses the necessary qualifications." This statement of the law was again reiterated by a Full Beach in W. A. 324/73. In the light of the principle thus expressed regarding seniority cum fitness, it is evident that senior person can be overlooked in favour of a junior who is demonstrably more fit for appointment than the senior. The first respondent after having ordered the posting of the 4th respondent as Principal of the College communicated the same to the University for approval. The petitioner objected to the appointment and requested the Vice-Chancellor not to grant approval to the appointment. Ext- P1 is the representation put in by the petitioner before the Vice-Chancellor. After overruling the objections raised by the petitioner the University granted the approval and the petitioner was informed of that fact by Ext. P2 order. 3. The contention raised by the petitioner is that when the petitioner objected to the appointment the University ought to have gone into the question as to whether the 4th respondent was meritorious than the petitioner. The Vice-Chancellor also should have gone into the question as to whether the first respondent was competent to function as an educational agency. Since the Vice-chancellor refused to examine the above issues, it is alleged that the approval granted to the 4th respondent is illegal. 4. The Vice-Chancellor also should have gone into the question as to whether the first respondent was competent to function as an educational agency. Since the Vice-chancellor refused to examine the above issues, it is alleged that the approval granted to the 4th respondent is illegal. 4. Educational Agency has been defined in the University Act as :- "Educational Agency means any person or body of persons who or which establishes and maintains a private college or more than one private college." As per S.54 and 55 of the Gandhiji University Act (hereinafter referred to as the Act) the unitary management or a corporate management as the case may be should constitute a managing council consisting of manager of the college and other persons mentioned therein The manager so appointed is to act in accordance with the provisions contained in S.56 of the Act. The manager has to correspond with the University and he is the person to institute proceedings for and on behalf of the College. The Educational Agency can speak through its representative namely the manager of the College. When the agency appoints one among them as a manager and that appointment is recognised by the University, he can represent the Educational Agency for all purposes. In the instant case the first respondent has been recognised as the manager of the St. George's College, Aruvithura. Therefore the first respondent was competent to correspond with the University and the said correspondence are to be taken by the University as those made by the Educational Agency. If the parish council or the parishioners are not satisfied with the working of the first respondent as manager they are to take appropriate action to remove him from the said post. So long as no such step was taken by the parish council or by the parishioners, the University has to act as if the first respondent is the person entitled to represent the Educational Agency. From Ext. P2 it is evident that the records maintained in the University shows the first respondent as the manager competent to represent the educational agency. Therefore the communication sent by him to the University informing the 4th respondent's appointment as Principal is to be taken by the University as one issued strictly in compliance with the provisions contained in the Act. 5. The Educational Agency is to make the appointment to the post of principal. Therefore the communication sent by him to the University informing the 4th respondent's appointment as Principal is to be taken by the University as one issued strictly in compliance with the provisions contained in the Act. 5. The Educational Agency is to make the appointment to the post of principal. They are to make the assessment on the basis of seniority-cum fitness. When the management chose one the post of Principal on the basis of seniority-cum-fitness, the University has to accept that selection unless it is established that the persons so selected is not qualified to hold the post in the instant case there is nothing on record now to show that the 4th respondent is not qualified to hold the post. Even on the petitioner's own showing the 4th respondent has got all the requisite qualifications to hold the post of Principal. Such a person when has been selected by the Educational Agency on the basis of seniority cum fitness the University is not to sit in appeal over the said selection. By Ext.P2 order the petitioner was informed of the approval granted to his appointment. I do not find any ground to interfere with the said order. In view of what has been stated above, I find no merit in this Original Petition. It is dismissed.