Shri V. I. Chacko v. Mahatma Gandhi University & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 14662 of 2006(U) -------------------------- PETITIONER: ------------ SHRI.V.I.CHACKO, PRINCIPAL, ST.THOMAS COLLEGE, PAZHAVANGADI POST, RANNI. BY ADV. SRI.S.V.BALAKRISHNA IYER (SR.) SRI.K.JAYAKUMAR SRI.P.B.KRISHNAN RESPONDENTS: ------------- 1. THE MAHATMA GANDHI UNIVERSITY, REPRESENTED BY ITS REGISTRAR, PRIYADARSHINI HILLS, KOTTAYAM. 2. THE MANAGER, ST.THOMAS COLLEGE, PAZHAVANGADI, RANNI. 3. SHRI 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, PAZHAVANAGADI, RANNI. WP(C).No. 14662/2006/U -2- 7. THE SECRETARY TO GOVERNMENT, EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY ADV. SRI.K.B.GANGESH SRI.JIJO PAUL SRI. T.A. SHAJI, SC, M.G.UNIVERSITY SENIOR GOVERNMENT PLEADER, SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 14662/2006/U ## APPENDIX ## PETITIONER'S EXHIBITS: EXT. P1: DATED 31-3-2005, TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE MANAGER TO THE PETITIONER. EXT. P2: DATED 9-4-2005, TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL NO.5 OF 2005 FILED BEFORE THE MAHATMA GANDHI UNIVERWSITY APPELLATE TRIBUNAL. EXT. P3: DATED 13-5-2005, TRUE COPY OF THE OOBJECTION FILED BY RESPONDENT NO.1 IN APPEAL NO.5/2005. EXT. P4: DATED 13-5-2005, TRUE COPY OF THE OBJECTION FILED BY RESPONDENT NO.2 IN APPEAL NO.5/2005. - EXT. P5: DATED 24-3-2006, TRUE COPY OF THE ORDER OF THE MAHATMA GANDHI UNIVERSITY APPELLATE TRIBUNAL IN APPEAL NOS.5 AND 6/200. EXT. P6: DATED 25-3-2006, TRUE COPY OF THE COMMUNICATION ISSUED TO RESPONDENT NO.2. ## RESPONDENT'S EXHIBITS: ANNEXURE R-1(A): TRUE COPY OF THE CIRCULAR OF THE UNIVERSITY. /TRUE COPY/ P.A. TO JUDGE JP **S.SIRI JAGAN, J.** ======================= W.P.(C) No.14662 of 2006(U) ======================= Dated this the 25th day of March, 2008 ## JUDGMENT The petitioner was appointed as a Principal of the St.Thomas College, Ranni by Ext.P1 order. That appointment was challenged by respondents 3 to 5 before the Mahatma Gandhi University Appellate Tribunal, Thiruvananthapuram. The Tribunal, by Ext.P5 common judgment in two appeals, relying on a decision of Devision Bench of this Court in **Rev. Fr. Danial Kuzhithadathil v. Jose** [2003 (2) KLT 858], held that the said appointment violates Section 59(3) of the Mahatma Gandhi University Act and is therefore invalid. On that ground, the appointment was set aside. Thereafter by Ext.P6 order, the manager of the College set aside the petitioner's appointment in accordance with the judgment of the Tribunal and appointed the 5th respondent as the Principal of the College. Aggrieved by Exts. P5 and P6 orders, the petitioner has filed this writ petition seeking the following reliefs: W.P.(C) No.14662/2006/U -2- - (i) strike down Section 59(3) of the Mahatma Gandhi University Act, 1985 (Act 12 of 1985) as unconstitutional; - (ii) declare that Section 59(3) of the Mahatma Gandhi University Act, 1985 (Act 12 of 1985) cannot be enforced on educational institutions that are administered by a minority community; - (iii) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P5; - (iv) issue a writ of certiorari or any other appropriate writ, order or direction quashing Ext.P6; - (v) issue a writ of mandamus or any other appropriate writ, order or direction directing respondent No.1 not to ratify or approve the appointment of respondent No.5 as the Principal of the St.Thomas college, Ranni, - (vi) grant the petitioner such other appropriate reliefs that this Hon'ble court may deem fit and proper on the facts and in the circumstances of the case; AND - (vii) award to the petitioner the costs of this Writ Petition. 2. The contention of the petitioner is that the decision relied upon by the Tribunal has been reversed by the Supreme Court in **Malankara Syrian Catholic College v. Jose** [2007 (1) KLT 22 (SC)] and therefore that decision is not good law any more and consequently the decision of the Tribunal based on that decision is liable to be set aside. 3. Respondents 2 to 6 and the 6th respondent contest the writ petition. The ground raised by them are as follows: W.P.(C) No.14662/2006/U -3- First is that, at the time when the Tribunal passed Ext.P5 judgment the law in force was that as declared by this Court in 2003 (2) KLT 858 and the decision of the Supreme Court reversing the same would apply only from the date of that decision. Therefore, according to them the decision of the Tribunal cannot tested in the light of the Supreme Court decision. The second is that, the petitioner is seeking to enforce the minority rights of the institution and he cannot be allowed to do that. According to them, the right to challenge the decision of the Tribunal on the basis of minority rights exclusively rests with the management of the College and since the College has not chosen to challenge the decision of the Tribunal, this Court cannot exercise the discretionary jurisdiction vested in it under Article 226 of Constitution of India to set aside the Tribunal's order at the instance of the petitioner. 4. I have considered the rival contentions in detail. Nobody disputes before me the fact that the community running the College is a minority community, except the University which states in their counter affidavit that the college has not been recognised as a minority institution. I need not go into that contention now because Ext.P5 judgment of the Tribunal W.P.(C) No.14662/2006/U -4- categorically accepts that St. Thomas College, Ranni has been established by St. Thomas Valiyapally Edavaka and is being run by a minority community and it is specifically stated therein that this fact is not disputed by anybody. The 1st respondent University was a respondent in the appeals before the Tribunal and they did not dispute that fact before the Tribunal. The fact that the Tribunal's decision is based on a Division Bench decision of this Court and that decision has been subsequently reversed are not disputed. I am of the opinion that the mere fact at the relevant time when the Ext.P5 judgment was passed, the law in force was as declared by the Division Bench decision does not make the order any the less invalid when the Supreme Court reversed the decision based on which Ext.P5 judgment has been passed. The Supreme Court decision does not say that decision is applicable prospectively. That being so, when the issue is live before this Court, the validity of the Tribunal's order has to be tested in the light of the law laid down by the Supreme Court regarding validity or otherwise of Section 57(3) of the Kerala University Act, which is in pari materia with Section 59(3) of the Mahatma Gandhi University Act. Admittedly, by the Supreme Court decision, it has been held that the Section 57(3) of the W.P.(C) No.14662/2006/U -5- Kerala University Act does not apply to minority run educational institutions, even if they are aided and that the right to choose a Principal is part of the right of minorities under Article 30(1) to establish and administer educational institutions of their choice. It is settled law that when the Supreme Court declares the law on a point, that law would be applicable to all pending cases on that point unless the Supreme Court declares that the law so declared would only have prospective application. Therefore, in the absence of any prospective application declared by the Supreme Court in that decision, I do not find any merit in the contention of the respondents that simply because at the relevant time when Ext.P5 judgment was passed the law was that declared by Division Bench of this Court, the subsequent reversal of that decision does not affect the validity of Ext.P5 judgment. Therefore the validity of the appointment of the petitioner has to be tested in the light of the Supreme Court decision and not the Division Bench decision. 5. The second contention raised by the respondents is that the petitioner cannot challenge Ext.P5 judgment in so far as only the institution has minority rights and not the petitioner. I do not find any merit in that contention also. The W.P.(C) No.14662/2006/U -6- appointment of the petitioner was made by the management. They contested the appeals filed by respondents 3 to 5 on the ground that their's is a minority institution and therefore, the appointment of the petitioner as Principal is valid since they are entitled to appoint a person of their choice as Principal. The petitioner is not seeking to exercise any minority rights by himself. He is only canvassing the validity of the appointment made by the management on the very same contentions raised by the management before the Tribunal which have been repelled by the Tribunal relying on the Division Bench decision of this Court. When the petitioner is the beneficiary of the management's decision which has been set aside by the Tribunal, I have no doubt in my mind that the petitioner has a right to challenge the validity of Ext.P5 judgment of the Tribunal on the very same contentions raised by the management in support of his appointment. Simply because the management has not chosen to challenge the order of the Tribunal, the petitioner is not estopped from challenging the order setting aside his appointment on the very same contentions raised by the management supporting his appointment. In fact I am of opinion that when the management's stand on the legal issue has W.P.(C) No.14662/2006/U -7- been vindicated by the decision of the Supreme Court which overruled the Division Bench decision of this Court relied on by the Tribunal, the management has a duty to support the petitioner's claim since it is they who had appointed the petitioner in the first place. In any event, they cannot take a different stand from what had been taken before the Tribunal, simply because of the subsequent change in their preference of the personnel for manning the post, especially when the petitioner had been selected as the 1st rank holder in a selection process conducted for that specific purpose. It is in exercise of their rights under Article 30(1) of the Constitution they had decided to appoint a person of their choice as Principal of their College. In the interests of the College they decided to choose the best among the persons available by conducting a selection. In that selection the petitioner came out with flying colours and he was appointed, which appointment was set aside on the ground that Section 59 (3) of the Act would govern the situation. Now that the Supreme Court has clarified that that Section cannot operate as a fetter to the right of the minority institution under Article 30(1) of the Constitution, the management cannot take a contention that they do not want the petitioner as the Principal. The rights of the W.P.(C) No.14662/2006/U -8- minority community cannot be stretched to the extent of allowing the management to change the personnel whenever they feel like it. If permitted it would lead to situation detrimental to the welfare of the institution, which is of paramount importance. Therefore, I do not find any merit in the second contention also. 5. Consequently applying the law as laid down by the Supreme Court in 2007 (I) KLT (22) SC, I have no doubt that Ext. P5 judgment relying on the decision of the Division Bench in 2003 (2) KLT 858, which was reversed by the Supreme Court decision, cannot be sustained in law and accordingly the same is set aside. Consequently the petitioner's appointment is liable to be restored. However, the period of the petitioner's appointment as Principal for 3 years by Ext.P1 is to expire on 31.3.2008. The petitioner worked only for about one year as Principal before Ext.P5 judgment intervened. Subsequently, by Ext.P6 order, the manager set aside the appointment of the petitioner as per the judgment of the Tribunal and appointed the 5th respondent as Principal. Since Ext.P6 is a consequential order to Ext.P5 judgment of the Tribunal, Ext.P6 order is also liable to be quashed. I do so. Since the petitioner's appointment was for a period of 3 years and because of the intervention of the Tribunal W.P.(C) No.14662/2006/U -9- by Ext.P5 Judgment, petitioner was prevented from continuing as Principal for the balance two years, it is only just and proper that the petitioner's tenure as Principal be extended for the balance period of his 3 year tenure as Principal. There would be a direction to the 2nd respondent to issue appropriate orders that effect and the University shall approve the appointment of the petitioner as Principal for a period of three years excluding the period when he was kept out on account of the impugned orders. Orders in this regard shall be issued by the 2nd respondent and the University within a period of one month from the date of receipt of a copy of this judgment. However, the 2nd respondent shall be reinstated as principal by the 2nd respondent, forthwith. However, this is without prejudice to the right of the petitioner's to claim to continue even beyond the three years, if he is legally entitled to do so. 7. I am distressed by the attitude taken by the management in the matter. Although a counter affidavit has been filed on behalf of the 2nd respondent, it is admitted that it is not sworn to by the approved manager of the College but the secretary of the Standing Committee appointed by the educational agency. They have no case that the approved W.P.(C) No.14662/2006/U -10- manager have been changed. They had taken a definite stand before the Tribunal that they appointed the petitioner as Principal exercising their right as a minority institution and such appointment is valid in law. Now a counter affidavit has been filed in the case taking a diametrically opposite stand to the effect that the appointment of the petitioner was a mistake and the appointment should have been made on the basis of seniority. They also take a very perverse stand that the petitioner has usurped the powers of the management in filing this writ petition by challenging Ext.P5. They had the audacity to say that the petitioner has filed a writ petition as if he is the educational agency of the college and that the management of the College has not authorised him to do so. They would contend that the management is aware of its rights and privileges and if aggrieved is capable of challenging the judgment of the Tribunal, and the petitioner need not set into the shoes of the manager, they contend. This attitude of the management is totally unacceptable. They appointed by the petitioner and they have chosen to support the appointment of the petitioner and defend their action before the Tribunal on the basis of their minority rights. The petitioner has filed the writ petition on his W.P.(C) No.14662/2006/U -11- own right and not on behalf of the management. I am of the opinion that this is a perverse exercise of their minority rights. As I have already stated, the minority rights of the 2nd respondent shall not be stretched to the extent of allocating to them the power of changing the principal as and when they choose to do so which would lead to disastrous results. In view of these perverse contentions raised by the management, I was inclined to order costs to the petitioner payable by the management. However, exercising restraint, I refrain from doing so. The writ petition is allowed as above. ## **S.SIRI JAGAN, JUDGE** jp