WA Nos. 913/2017 & 921/2017 v. W.P.C. 11917/2013 (St. Thomas College, Kozhencherry)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941** ## **WA.No.913 OF 2017** **AGAINST THE JUDGMENT IN WPC 11917/2013 DATED 01-03-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/3RD RESPONDENT IN THE WRIT PETITION (C):** **THE MANAGER** **ST. THOMAS COLLEGE,KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641.** **BY ADVS.** **SRI.P.RAVINDRAN (SR.) SRI.SREEDHAR RAVINDRAN SMT.LAKSHMI RAMADAS** ## **RESPONDENTS/PETITIONERS/RESPONDENTS 1, 2, 4 AND 5 IN THE WRIT PETITION (C):** - **1 DR.VARUGHESE PHILIP ASSOCIATE PROFESSOR,POST GRADUATE AND RESEARCH DEPARTMENT OF CHEMISTRY,ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA - 689 641** - **2 DR. MAMMEN ZACHARIAH ASSOCIATE PROFESSOR,POST GRADUATE AND RESEARCH DEPARTMENT OF COMMERCE,ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA - 689 641.** - **3 DR. BENZEN KUNJUKUNJU ASSOCIATE PROFESSOR,POST GRADUATE AND RESEARCH DEPARTMENT OF COMMERCE,ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA - 689 641.** WA Nos.913 & 921/2017 -:2:- - **4 DR. KOSHY GEORGE ASSOCIATE PROFESSOR,POST GRADUATE AND RESEARCH DEPARTMENT OF COMMERCE,ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA - 689 641.** - **5 UNIVERSITY GRANTS COMMISSION UGC BAHADUR SHAH SAFAR MARGH,NEW DELHI - 110 002.REPRESENTED BY ITS SECRETARY.** - **6 MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS,ATHIRAMPUZHA P.O.,KOTTAYAM,REPRESENTED BY ITS REGISTRAR, PIN - 686 560.** - **7 THE SELECTION COMMITTEE CONSTITUTED FOR SELECTION TO THE POST OF PRINCIPAL ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA,REPRESENTED BY ITS CHAIRMAN PIN- 689 641. [DELETED] [THE 7TH RESPONDENT IS DELETED FROM THE PARTY ARRAY OF THE APPEAL AT THE RISK OF THE PETITIONER AS PER ORDER DATED 28/06/2017 IN IA.792/17 IN WA.913/17].** - **8 PROF. ROYS P. DAVID @ROYS MALLASSERY ASSOCIATE PROFESSOR,DEPARTMENT OF MALAYALAM, ST. THOMAS COLLEGE, KOZHENCHERI, PATHANAMTHITTA - 689 641.** **R1, R3 BY ADV. SRI.BECHU KURIAN THOMAS (SR.) R1, R3 BY ADV. SRI.LIJU.V.STEPHEN R1, R3 BY ADV. SMT.INDU SUSAN JACOB SRI.P.C.SASIDHARAN, R1 TO R4 SRI.S.KRISHNAMOORTHY, CGC FOR R5 R6 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R8 BY ADV. SRI.V.PHILIP MATHEW** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-102019, ALONG WITH WA.921/2017, THE COURT ON 01-11-2019 DELIVERED THE FOLLOWING:** WA Nos.913 & 921/2017 -:3:- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941** ## **WA.No.921 OF 2017** **AGAINST THE JUDGMENT IN WPC 11917/2013 DATED 01-03-2017 OF HIGH COURT OF KERALA** ## **APPELLANT/5TH RESPONDENT:** **PROF. ROYS P.DAVID @ ROYS MALLASSERY, RETIRED PRINCIPAL, ST. THOMAS COLLEGE,KOZHENCHERRY.(REFERRED TO AS ASSOCIATE PROFESSOR,DEPARTMENT OF MALAYALAM, ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641 IN THE WRIT PETITION).** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENTS/PETITIONERS AND RESPONDENTS 1 TO 4:** - **1 DR. VARUGHESE PHILIP ASSOCIATE PROFESSOR, POST GRADUATE AND RESEARCH DEPARTMENT OF CHEMISTRY, ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641.** **2 DR. MAMMEN ZAACHARIAH ASSOCIATE PROFESSOR, POST GRADUATE AND RESEARCH DEPARTMENT OF COMMERCE, ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641.** - **3 DR. BENSON KUNJUKUNJU ASSOCIATE PROFESSOR, POST GRADUATE AND RESEARCH DEPARTMENT OF COMMERCE, ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641.** WA Nos.913 & 921/2017 -:4:- - **4 DR. KOSHY GEORGE ASSOCIATE PROFESSOR, POST GRADUATE AND RESEARCH DEPARTMENT OF COMMERCE,, ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641.** - **5 UNIVERSITY GRANTS COMMISSION UGC BAHADUR SHAH ZAFAR MARG, NEW DELHI - 110 002.REPRESENTED BY ITS SECRETARY.** - **6 MAHATMA GANDHI UNIVERSITY PRIYADARSHINI HILLS, ATHIRAMPUZHA P.O,KOTTAYAM, REPRESENTED BY ITS REGISTRAR,PIN - 686 560.** - **7 THE MANAGER ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA, PIN - 689 641.** - **8 THE SELECTION COMMITTEE CONSTITUTED FOR SELECTION TO THE POST OF PRINCIPAL ST. THOMAS COLLEGE, KOZHENCHERI,PATHANAMTHITTA,REPRESENTED BY ITS CHAIRMAN PIN - 689 641. (DELETED) (THE 8TH RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 22/06/2017 IN IA.NO.780/2017)** - **R1, R3 BY ADV. SRI.BECHU KURIAN THOMAS (SR.) R1, R3 BY ADV. SRI.ENOCH DAVID SIMON JOEL R1, R3 BY ADV. SRI.LIJU.V.STEPHEN R1, R3 BY ADV. SMT.INDU SUSAN JACOB R1, R3 BY ADV. KUM.PRIYANKA JOSE R6 BY ADV. SRI.ASOK M. CHERIAN, SC, M.G. UNIVERSITY R1 TO R4 BY ADV.SRI.P.C.SASIDHARAN R5 BY ADV.S.KRISHNAMOORTHY R7 BY ADV. SRI.P.RAVINDRAN (SR.)** - **R7 BY ADV. SRI.SREEDHAR RAVINDRAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11-102019, ALONG WITH WA.913/2017, THE COURT ON 01-11-2019 DELIVERED THE FOLLOWING:** WA Nos.913 & 921/2017 -:5:- ## **J U D G M E N T** Dated this the 1[st] day of November 2019 ## _**Shaffique, J.**_ These two cases arise from judgment dated 1/3/2017 in WP(C) No. 11917/2013. WA No.913/2017 has been filed by the Manager of St.Thomas College, who is the 3[rd] respondent in the writ petition and WA No.921/2007 has been filed by the 5[th] respondent in the writ petition. 2. The short facts of the case are as under:- A post of Principal in the College became vacant on 01/04/2013 consequent to the retirement of the earlier incumbent. It is alleged that promotion to the said post has to be made based on the seniority cum fitness. The college issued Ext.P1 notification calling for applications for the said post, pursuant to which petitioners and the 5[th] respondent applied. According to the petitioners, though the 5[th] respondent did not have the qualification prescribed by UGC Regulations, the Management chose to appoint the 5[th] respondent as Principal which came to be challenged. In the judgment, it was observed that though the WA Nos.913 & 921/2017 -:6:- parties have already retired from service, the 3[rd] respondent was directed to reconsider the issue and pass orders with retrospective effect considering the claim of the petitioners in accordance with the petitioners' qualification, seniority and suitability taking note of UGC Regulations, 2010. 3. While impugning the aforesaid judgment, learned senior counsel for the appellants would point out that in so far as the Management is a minority institution, it is entitled to fill up the post of Principal from among the members of the minority candidates who applied for it and seniority cannot be a criteria for such a decision. After referring to the judgment in _**S.N. College v. Raveendran**_ (2001 (3) KLT 938), it is pointed out that though UGC Scheme was introduced from 1/01/1986, and Government passed GO(P) No.171/1999/H.Edn dated 21/12/1999 for implementation of the said scheme, unless and until amendments are effected in the University statutes, the same would not be applicable to private colleges. It was held that Management of private colleges are not bound to follow the same. The Full Bench of this Court in _**Radhakrishnan Pillai v. Travancore Devaswom Board**_ [2016 (2) KLT 245 (FB)] (which WA Nos.913 & 921/2017 -:7:- was relied upon by the learned Single Judge) was clarified by the Apex Court. The Apex Court while considering an appeal filed by the University as SLP Nos.18938-18942/2017, after referring to the Full Bench judgment, passed an order on 17/7/2018 as under:- _“All the applications for impleadment/intervention are allowed._ _The fact remains that the law has been settled by the High Court finally by the judgment of the Full Bench of the High Court of Kerala dated 23.02.2016 regarding the application of U.G.C. Regulations. Therefore, it is only in the interest of justice and for doing complete justice between the parties to declare that the judgment dated 23.02.2016 will be applicable only from the date of the judgment i.e. 23.02.2016, except in the case of the individual parties before the High Court. Declared accordingly._ _With the above clarification, all these special leave petitions are disposed of._ _However, we make it clear that in case any University has amended the Statutes, prior to the date of the judgment, the effect will be from the date as indicated in the amendment or the date of the actual order of implementation of the Statutes._ _Pending application(s), if any, shall stand disposed of."_ In the light of the aforesaid clarification issued by the Apex Court, necessarily, all appointments made until 23/2/2016 will have to WA Nos.913 & 921/2017 -:8:- be upheld. The Apex Court had also observed that, as far as individual parties before the High Court are concerned i.e., who were parties in the said case, the Full Bench judgment squarely applies. Though the writ petition in the above case was filed prior to the judgment in _**Radhakrishnan Pillai's case**_ (supra), the clarification issued by the Apex Court, applies to this case as well. It is pointed out that the contesting respondents had been impleaded in the case before the Apex Court. But still, while issuing the clarification, the Apex Court had given the benefit of the judgment only to parties before the High Court. 4. As far as this case is concerned, application of the Full Bench judgment will only be in respect of appointments made after 23/2/2016. The Apex Court had also held that, if the University has amended the Statutes prior to the date of judgment, the effective date will be from the date of amendment or the date of actual order of implementation of the Statutes. 5. Learned counsel for the writ petitioners have argued that by Ext.P4 dated 1/08/2011, the Vice Chancellor exercising powers conferred under S.10(17) of Chapter 3 of the Mahatma Gandhi University Act, 1985 has adopted the Regulations WA Nos.913 & 921/2017 -:9:- promulgated by the UGC vide its notification dated 30/6/2009. It is therefore argued that when the Vice chancellor exercising powers of the Syndicate had brought into effect the UGC Regulations, the same has to be complied with by the College. 6. Section 10(17) of the M.G. University Act, reads as under:- _“If at any time, except when the Syndicate or the Academic council is in session, the Vice-Chancellor is satisfied that an emergency has arisen, requiring him to taken immediate action involving the exercise of any power vested in the Syndicate or the Academic Council by or under this Act, the Vice Chancellor may take such action as he deems fit and shall, at the next session of the Syndicate or the Academic Council, as the case may be, report the action taken by him to that authority for such action as it may consider necessary and that authority may, after considering the action taken by the Vice-Chancellor is of the view that such action shall not have been taken by him, refer the matter to the Chancellor whose decision thereon shall be final.”_ But the Apex Court in its order dated 17/7/2018 had only saved those cases where the statutes were amended prior to the date of judgment. The order passed by the Vice Chancellor in terms of S.10(17) does not amount to amendment of the statute. That apart, the action taken has to be placed at the next session of the WA Nos.913 & 921/2017 -:10:- Syndicate or the Academic Council, as the case may be, for ratification. S.23 of the M.G.University Act has specified the powers of the Syndicate which includes making of Statutes and Ordinances, to amend the same or repeal the same. Therefore, exercise of power by the Vice Chancellor under S.10(17) of the M.G. University Act under special circumstances by itself cannot be termed as an amendment to the Statute. 7. Though it is argued by learned senior counsel appearing for the appellants that the Regulations prescribed a minimum qualification only for teachers appointed by way of direct recruitment, even while giving promotion to the post of Principal, the qualification prescribed under the Regulations has to be complied and that exactly was the issue dealt in _**Radhakrishnan Pillai's case**_ (supra). 8. The learned counsel for the appellant in WA No.921/2017 points out that he was appointed as a Principal pursuant to the notification under challenge from 2/5/2013 for a period of two years. At the relevant time, when the vacancy arose, he did not have Ph.D. However, he was awarded Ph.D on 12/9/2013. After the two year period, he was again appointed as WA Nos.913 & 921/2017 -:11:- Principal from 2/5/2015 and he retired on 31/5/2016. In fact, the second appointment as Principal was not challenged by any person. Writ petitioners retired on 31/5/2014 and 31/5/2015 respectively. 9. The 5[th] respondent was appointed as Principal for the second time, by which time, he had already acquired the requisite qualification. The writ petitioners have also retired during the pendency of the writ petition. That apart, seniority cannot be the criteria for appointing Principal in a minority institution which is well settled by the Apex Court in a long line of judgments and one of which is _**Secretary, Malankara Syrian Catholic College v. T.Jose**_ [(2007) 1 SCC 386]. It is settled law that if the institution is a minority institution, the management will have to call for applications from qualified persons among the minority community, conduct a selection process and thereafter it is open for them to take a decision to appoint an eligible person as Principal irrespective of the seniority. Such being the legal position, the learned Single Judge was not justified in directing that seniority has to be considered for appointment of Principal in a minority institution. WA Nos.913 & 921/2017 -:12:- 10. In the above circumstances, no useful purpose will be served in recasting the select list to the post of Principal which became vacant on 01/04/2013. In the result, these appeals are allowed setting aside the judgment of the learned Single Judge and the writ petition stands dismissed. **Sd/-** **A.M.SHAFFIQUE** **JUDGE Sd/T.V.ANILKUMAR JUDGE** Rp WA Nos.913 & 921/2017 -:13:- ## **APPENDIX OF WA 913/2017** **APPELLANT'S EXHIBITS:** **ANNEXURE 1** **PHOTOCOPY OF THE MINORITY CERTIFICATE DATED 23/05/2013.** **ANNEXURE II** **PHOTOCOPY OF THE INITIAL APPOINTMENT DATED 02/05/2013 OF THE 8TH RESPONDENT.** **ANNEXURE III PHOTOCOPY OF THE INITIAL APPROVAL ORDER OF THE 8TH RESPONDENT DATED 27/01/2014.** **ANNEXURE IV PHOTOCOPY OF THE SUBSEQUENT APPOINTMENT ORDER OF THE 8TH RESPONDENT DATED 02/05/2015.** **ANNEXURE V PHOTOCOPY OF THE SUBSEQUENT APPROVAL ORDER OF THE 8TH RESPONDENT 05/01/2016.** **ANNEXURE VI PHOTOCOPY OF THE APPOINTMENT ORDER SRIL K.C.ZAZHARIAH DATED 01/06/2016. ANNEXURE VII PHOTOCOPY OF THE UGC ORDER DATED 30/08/2016.** **RESPONDENT'S EXHIBITS:** **ANNEXURE R1 (a) A TRUE COPY OF THE IMPLEADING APPLICATION FILED BY THE RESPONDENT NOS.1 AND 3 IN SLIP NO.18938/2017 DATED 17/07/2018 BEFORE THE HON'BLE SUPREME COURT OF INDIA.** WA Nos.913 & 921/2017 -:14:- ## **APPENDIX OF WA 921/2017** ## **APPELLANT'S EXHIBITS** **ANNEXURE A1 A TRUE COPY OF THE ORDER DATED 5.1.2016 ISSUED BY THE MAHATMA GANDHI UNIVERSITY.** **ANNEXURE A2 A TRUE COPY OF THE APPOINTMENT ORDER DATED 2/5/2015.** **ANNEXURE A3 A TRUE COPY OF THE ORDER OF THE UNIVERSITY DATED 27/1/2014 APPROVING THE APPOINTMENT OF THE APPELLANT AS PRINCIPAL** ## **RESPONDENT'S EXHIBITS:** **ANNEXURE R1 (a) A TRUE COPY OF THE IMPLEADING APPLICATION FILED BY THE RESPONDENT NOS.1 AND 3 IN SLP NO.18938/2017 DATED 17/07/2018 BEFORE THE HON'BLE SUPREME COURT OF INDIA** True Copy PS to Judge Rp WA Nos.913 & 921/2017 -:15:-