Secretary, Malankara Syrian Catholic College Association (Major Archdiocese of Trivandrum) v. T. Jose and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : ## **THE HONOURABLE MR. JUSTICE K.T.SANKARAN** WEDNESDAY, THE 23RD JULY 2008 / 1ST SRAVANA 1930 **WP(C).No. 5300 of 2008(E)** **-------------------------** PETITIONERS: - ------------------------- 1. THE SECRETARY, MALANKARA SYRIAN CATHOLIC COLLEGES ASSOCIATION (MAJOR ARCHIOCESE OF TRIVANDRUM) PATTOM, THIRUVANANTHAPURAM 695 004. 2. REV.FR.MATHEW M.C. LECTURER (SELECTION GRADE) IN FRENCH, MAR IVANIOS COLLEGE, THIRUVANANTHAPURAM. ## BY ADV. SRI.SANTHOSH MATHEW ADV. SRI.SATHISH NINAN RESPONDENTS: -------------------------- 1. THE KERALA UNIVERSITY, THIRUVANANTHAPURAM REPRESENTED BY ITS REGISTRAR. 2. THE VICE CHANCELLOR, - KERALA UNIVERSITY, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM. 4. THE CHAIRMAN, STANDING COMMITTEE ON TEACHING AND NON-TEACHING STAFF OF PRIVATE COLLEGES, KERALA UNIVERSITY, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER ADV. SHRI T.T. MUHAMOOD. R1 AND R2 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UNIVERSITY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/07/2008, ALONG WITH W.P.(C) NOS. 5334 AND 5393 OF 2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## _**WP(C).No. 5300 of 2008 (E)**_ ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** - EXT.P1: PHOTOCOPY OF THE JUDGMENT IN APPEAL NO.16/2000 OF THE KERALA UNIVERSITY APPELLATE TRIBUNAL DATED 23.12.2006 - EXT.P2: PHOTOCOPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER NO.MSC.25/07/TS/ DATED 30.5.2007. - EXT.P3: PHOTOCOPY OF THE ORDER OF THE 2ND PETITIONER NO. MSC.25/07/TS DATED 4.6.2007 - EXT.P4: PHOTOCOPY OF THE JUDGMENT IN W.P.(C) 18778/2007 DATED 12.7.2007 OF THE HON'BLE HIGH COURT OF KERALA. - EXT.P5: PHOTOCOPY OF THE PROCEEDINGS OF THE VICE-CHANCELLOR, KERALA UNIVERSITY HELD ON 25.8.2007. - EXT.P6: PHOTOCOPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT NO.32242/D2/06.H.Edn. DATED 9.7.2007. - EXT.P7: TRUE COPY OF THE REPLY RECEIVED FROM THE REGISTRAR DT. 30.05.2008. - EXT.P8: TRUE COPY OF THE JUDGMENT IN W.P.(C) 26074 OF 2006. - EXT.P9: TRUE COPY OF THE INTERIM ORDER IN W.A. 119/08. EXT.P10 TRUE COPY OF THE COMMUNICATION ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT ON 15.4.2008. /TRUE COPY/ P.A. TO JUDGE. **K.T. SANKARAN, J. ................................................................................... W.P(C) Nos. 5300, 5334 & 5393 OF 2008 ................................................................................... Dated this the 23[rd] July, 2008** ## **J U D G M E N T** Since common questions are involved in these Writ Petitions they are being disposed of by this common judgment. 2. The first petitioner in these Writ Petitions is the Secretary of Malankara Syrian Catholic Colleges Association (Major Archdiocese of Trivandrum). The second petitioner in each of the Writ Petitions is the person who is appointed as the Principal in the respective colleges. 3. The Malankara Syrian Catholic Colleges Association runs several colleges and institutions. It is claimed that the first petitioner is an aided minority educational agency. ## **W.P.(C) 5300 OF 2008:** 4. The second petitioner was appointed as the Principal of Mar Ivanios College, Thiruvananthapuram as per Ext. P2 order of appointment dated 30.05.2007. As per Ext. P3 order of appointment dated 04.06.2007 , the second petitioner was also appointed as the Drawing and Disbursing Officer of the said college. The ViceChancellor of the Kerala University passed Ext.P5 order dated 25[th] August, 2007 holding thus: **2** ## **W.P(C) Nos. 5300, 5334 & 5393 OF 2008** _“Taking into consideration all the aspects involved in the case and in view of the fact that University has to obey the dictum laid down by the Supreme Court, the Vice-Chancellor has decided to proceed as if the Management is a minority one and that the Management of Malankara Syrian Catholic Colleges need not follow section 57(3) of the Act , which stipulates seniority cum fitness certificate, for appointment of Principal by promotion. It follows that Rev. Fr. M.G. Mathews appointment as Principal has to be approved._ _Hence, the Vice-Chancellor has passed order to (1) ratify the appointment of Rev. Fr. M.G. Mathew as the DDO of Mar Ivanios College , Thiruvananthapuram from 1-6-2007, for a period of three months and to (2) place the proposal for approval of Rev. Fr.M.G. Mathew as the Principal of Mar Ivanios College, Thiruvananthapuram before the Standing Committee on Teaching and Non-Teaching Staff of Private Colleges. “_ 5. The Syndicate in its meeting held on 29.05.2008, considered the proposal for appointment of the second petitioner as the Principal of Mar Ivanios College , Thiruvananthapuram and it was resolved that the appointment of the second petitioner cannot be considered since the Institution has not produced the minority certificate from a competent authority till date. Ext.P7 dated 30.05.2008 is the order issued by the Registrar on the basis of the decision of the Syndicate. Ext. P7 is under challenge in this Writ Petition. 6. Learned counsel for the petitioners submits that Ext. P7 order is contrary to the decision of the Supreme Court in _**Secretary, Malankara Syrian Catholic College,**_ **W.P(C) Nos. 5300, 5334 & 5393 OF 2008** **3** _**vs. T. Jose and others**_ [ **(2007) 1 Supreme Court Cases 386** ], wherein the question arose for consideration was as to whether Section 57(3) of the Kerala University Act 1974 would apply or whether the Management could appoint any qualified person of its choice, when a Principal was appointed in Mar Ivanios College prior to the appointment of the second petitioner as Principal. 7. Section 57(3) of the Kerala University Act , 1974 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.”_ 8. In the aforesaid case, the Kerala High Court held that Section 57(3) of the Kerala University Act applies to minority institutions as well and that the seniormost from among the eligible and fit lecturers had to be appointed as Principal. The management had taken up the matter before the Supreme Court and the Supreme Court reversed the decision of the Kerala High Court. In paragraph '2' of the judgment in _**Secretary, Malankara Syrian Catholic College, vs. T. Jose and others**_ , the Supreme Court has stated that the Malankara Syrian Catholic College Association of Archdiocese at Trivandrum is a society registered under the Kerala Literacy, Scientific and Charitable Societies Registration Act, 1955 and that it is a minority organisation and an educational agency. It was also noticed that Mar Ivanios College is an aided private minority institution affiliated to Kerala University. On that basis, the Supreme Court held that Section 57(3) of the Kerala University Act would not apply to the appointment of Principal. The challenge against the appointment of Principal on the ground that Section 57(3) would apply was repelled. **4** ## **W.P(C) Nos. 5300, 5334 & 5393 OF 2008** 9. Learned counsel for the petitioners submits that since the Honourable Supreme Court has recognised the first petitioner as a minority educational agency and Mar Ivanios College as a minority educational institution, the University cannot sit in judgment over the decision of the Supreme Court. It is also pointed out that in Ext.P5 order, the Vice-Chancellor of the University has recognised the institution as a minority institution. 10. Learned Standing Counsel appearing for the University relied on Ext. P10 order dated 15.04.2008 issued by the Principal Secretary to the Government, wherein relying on Ext.P8 judgment of the Kerala High Court, it was stated that “educational institutions established by minorities do not automatically have protection and rights conferred by Article 30(1) of the Constitution of India and that seniority-cum- fitness has to be followed in every institution without declared minority status for appointment of Principal”. Learned Counsel also pointed out that so long as there is no such declaration in the case of the petitioners, Ext.P7 order is perfectly legal and valid. 11. Learned counsel for the petitioner points out that though a Review Petition was filed before the Supreme Court seeking to review the judgment reported in [ **(2007) 1 Supreme Court Cases 386** ] on the ground that minority status was not established in the case of the petitioners therein, the Review Petition was dismissed. 12. When a particular status or state of of things is established before a court of law, particularly before the Supreme Court, and a decision is rendered on that basis, that particular status or state of things need not be proved on every occasion when it comes up for consideration before a Court, Tribunal or other Authority. It is **5** ## **W.P(C) Nos. 5300, 5334 & 5393 OF 2008** sufficient if such decision, in which the status or state of things has been declared or established, is produced before the Court, Tribunal or other Authority. Therefore, I am of the view that Ext.P7 order is unsustainable. Accordingly, Ext.P7 order is quashed. The University shall consider the matter afresh in the light of law laid down by the Supreme Court and shall pass appropriate orders. 13. It is submitted by learned counsel for the petitioner that till the matter is decided by the University, the second petitioner may be permitted to act as the Drawing and Disbursing Officer. Since the University has to pass appropriate orders in the matter of approval of appointment of the second petitioner as Principal, the statusquo should continue and the second petitioner should be permitted to act as the Drawing and Disbursing Officer till the matter is decided. The University shall consider the matter and pass appropriate orders within a period of three months . ## **W.P.(C) No. 5393 of 2008:** In view of the order passed in W.P.(C)No. 5300 of 2008, respondent Nos. 2 and 3 are directed to consider the matter of approval of appointment of the second petitioner as the Principal of St. John's College, Anchal within a period of three months, in the light of the principles laid down by the Supreme Court in **(2007) 1 Supreme Court Cases 386** and the observations made herein above. **6** ## **W.P(C) Nos. 5300, 5334 & 5393 OF 2008** ## **W.P.(C)No. 5334 OF 2008** : In view of the order passed in W.P.(C)No. 5300 of 2008, respondent Nos. 2 and 3 are directed to consider the matter of approval of appointment of the second petitioner as the Principal of Mar Theophilus Training College, Thiruvananthapuram within a period of three months, in the light of the principles laid down by the Supreme Court in **(2007) 1 Supreme Court Cases 386** and the observations made herein above. ## **W.P(C) Nos. 5300, 5334 & 5393 OF 2008** Till the matter is decided, the interim order passed in the above Writ Petitions will continue. **K.T. SANKARAN, JUDGE.** lk