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2009 DIGILAW 239 (KER)

St. Berkumans College v. Principal Secretary

2009-03-06

K.BALAKRISHNAN NAIR, M.L.JOSEPH FRANCIS

body2009
Judgment: K. Balakrishnan Nair, J. The writ petitioners are the appellants. They approached this Court, in connection with the disputes relating to the approval of appointment of Principals in their colleges and also the appointment of Drawing and Disbursing Officers. The Educational Agencies concerned belong to the christian minority community. For convenient reference, the names of the Educational Agencies and Colleges concerned, involved in these appeals are given below. Table 2. The learned Single Judge heard the Writ Petitions and disposed of them, by a common judgment dt. 12.2007, which is reported in Assumption College v. State of Kerala (2008 (1) KLT 235). The operative portion of the judgment reads as follows: "26. Therefore the questions posed in the judgment are answered as follows: (a) Only the management of a religious minority institution can appoint a candidate of its choice as Principal of a private aided college. In the absence of a formal declaration of minority status, the management is bound to comply with the mandate contained in S.59(3) of the M.G. University Act. (b) The management of a private aided college is entitled to appoint a senior teacher as Drawing and Disbursing Officer in the temporary absence of approved Principal. The Government or the Directorate of Collegiate Education .cannot insist that only the senior most teacher can be appointed as the Drawing and Disbursing Officer in the temporary absence of an approved Principal. To the above extent, Ext.P6 order is qushed. But such a Drawing and Disbursing Officer cannot discharge the duties and functios of Principal." 3. The appellants are aggrieved by the observation of the learned Single Judge that, in the absence of a formal declaration of minority status, the management is bound to comply with the mandate contained in S.59(3) of the Mahatma Gandhi University Act, (for short `the Ace). S.59(3) of the Act reads as follows: "S.59(3): Where the appointment of Principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness." Going by the above provision, the seniormost teacher, unless he is found unfit, is liable to be appointed as Principal. It is not in dispute that in minority educational institutions, that is, institutions established and administered by minorities, appointment to the post of Principal can be made overlooking seniority, provided he is having the statutorily prescribed qualifications for the post. It is not in dispute that in minority educational institutions, that is, institutions established and administered by minorities, appointment to the post of Principal can be made overlooking seniority, provided he is having the statutorily prescribed qualifications for the post. If the direction of the learned Single Judge is allowed to stand, the concerned educational agency should first get a declaration regarding their minority status before appointing a qualified junior teacher, it is pointed out by the appellants. 4. The question of declaration arises if only somebody disputes the status of an educational agency. The appellants point out that they are all Dioceses, Congregations or individual Churches and, therefore, the educational institutions established by them can be administered by them, without being fettered by the provisions of S.59(3) of the Mahatma Gandhi Univerity Act or S.57(3) of the Kerala University Act. They say, it is manifest that the educational agencies concerned belong to minority community and therefore, the institutions established by them can be administered with the protection of Art.30(1) of the Constitution of India. So, the direction of the learned Single Judge that only if armed with a declaration that they have minority status, they can deviate from the seniority rule, is unsustainable. They pray that the above direction may be vacated. 5. The Government fully supports the view taken by the learned Single Judge. The learned counsel for the Mahatma Gandhi University and Kerala University submitted that so far, the Universities have not decided whether the appellants can claim minority status and therefore, can appoint any qualified teacher as Principal, overlooking the seniority of the teachers of the Colleges concerned. If the University concerned disputes, then of course, a declaration may be necessary by the competent authority. 6. What is the legal effect of a declaration of minority status has been the subject-matter of the decision of the Apex Court in Ammad v. Emjay High School (1998 (2) KLT 828). The Apex Court in the said decision observed as follows: "11. Counsel for both sides conceded that there is no provision in the Act which enables the Government to declare a school as minority school. If so, a school which is otherwise a minority school would continue to be so whether Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. If so, a school which is otherwise a minority school would continue to be so whether Government declared it as such or not. Declaration by the Government is at best only a recognition of an existing fact. Art.30(1) of the Constitution reads thus: `All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. 12. When the Government declared the school as a minority school it has recognised a factual position that the school was established and is being administered by a minority community. The declaration is only an open acceptance of a legal character which should necessarily have existed antecedent to such declaration. Therefore, we are unable to agree with the contention that the school can claim protection only after the Government declared it as a minority school on 8.1994." 7. Going by the Educational Agencies and the Colleges mentioned above, we are, prima facie, satisfied that they are minority educational institutions entitled to get protection under Art.30(1) of the Constitution of India. It is not necessary for us to finally pronounce on that controversy, as the Universities have not taken any final decision on that aspect. If they appoint Principals of their choice, the Universities are bound to consider approval of their appointments. It is submitted that the appointments made by the appellants to the post of Principal are pending consideration before the Universities. The direction of the learned Single Judge that they should get a declaration first to deviate from the seniority rule, is unsustainable and is vacated. 8. The Writ Appeals are allowed as above. The Universities are directed to pass final orders on the motions pending before them from the appellants, for approval of appointments to the post of Principal, within four months from the date of production of a copy of this judgment.