ST.XAVIER'S COLLEGE v. GOVERNMENT OF KERALA

T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - -W.P.(C) Nos. 3434/2009-H& 10727/2009-I - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of October, 2009.JUDGMENTThese two writ petitions are filed by the same petitioner and since theissues raised are the same, they are disposed of by a common judgment.The matter relates to approval of appointment of Principals of St. Xavier’sCollege, Thumba, Thiruvananthapuram which is a private aided collegeestablished and administered by the Catholic denomination of the ChristianCommunity and affiliated to the University of Kerala. The college wasstarted in the year 1964 as a Junior College and was upgraded in the year1997.2. The dispute relates to approval of appointment as Principal of Fr.Joseph Mathew S.J. in the retirement vacancy of Fr. K.P. Mathew S.J. witheffect from the afternoon of 30.3.2007 and Fr. Sunny Jose S.J. who wasappointed as Principal on the retirement of Fr. Joseph Mathew S.J. witheffect from 31.3.2008.3. It is the case of the petitioner that the appointments were made inexercise of the rights available to the management under Article 30(1) of the wpc 3434 & 10727of 20092Constitution of India. The petitioner is relying upon Ext.P1 order dated28.12.1987 passed by the Government sanctioning re-classification of thecolleges, viz. St. Xavier’s College, Thiruvananthapuram and All SaintsCollege, Thiruvananthapuram as Backward Minority CommunityInstitutions.4. The approvals have been rejected mainly on the ground that noreliance can be placed on Article 30(1) of the Constitution of India by themanagement in the absence of a declaration of minority status. Othercontentions have also been placed on the merits. The petitioner had toapproach this court earlier and the present order is passed by the Universitypursuant to the directions issued by this court in the earlier judgments. Thepetitioner had filed W.P.(C) No.24433/2007 since there was undue delay ingranting approval of appointment of Fr. Joseph Mathew S.J. as Principal.The counter affidavit filed by the University in the said writ petition isproduced as Ext.P3 in both cases. The case of the petitioner is that nodispute was raised against the claim made by the petitioner on the basis ofExt.P1, that the Government has approved the petitioner institution as aBackward Minority educational institution. The only contention raised wasrelying upon Section 57(3) of the Kerala University Act. It is thereforesubmitted that the directions issued in the above judgment after recording wpc 3434 & 10727of 20093the minority status of the petitioner, are binding on the University and theycannot adopt a contrary stand in the present writ petitions.5. Reliance is also placed on the decision of this court in Manager,Malankara Syrian Catholic Colleges Association and others v. KeralaUniversity (2009 (4) KHC 241). It is submitted that the issues raised hereinare covered by the dictum laid down therein.6. Before going into further aspects in the matter, I may refer toExts.P9 and P10 judgments produced in W.P.(C) No.3434/2009 between theparties in relation to the very same appointments. In Ext.P9 judgment, thiscourt directed the University to consider and pass appropriate orders in theapplication for approval of appointment of Fr. Sunny Jose S.J. as Principalof the College. It was specifically directed that Ext.P1 order declaring thepetitioner’s college as a minority educational institution, shall also be dulyadverted to. A reading of Ext.P10 judgment shows that this court acceptedthe fact that the petitioner is a minority educational institution. Whilereferring to the stand of the University that the petitioner has not producedseniority cum fitness certificate, it is observed in para 3 as follows:“The University’s stand appears that the petitioner has not producedseniority cum fitness certificate. Being a minority educationalinstitution, they have the freedom to make appointment of any wpc 3434 & 10727of 20094suitable qualified candidate irrespective of seniority and there is nojustification for the insistence of the University for seniority cumfitness certificate as done in Ext.P7.”7. In spite of the above findings, which are binding on theUniversity, the stand taken in the impugned orders is that the right of theminority aided colleges like the petitioner can only be subject to the rulesand regulations framed by the University. No declaration has been obtainedto the effect that St. Xavier’s College, Thumba is having minority status.The National Commission for Minority Educational Institutions Act, 2006was not brought to the notice of this court while rendering Exts.P9 and P10judgments. The fact that the college had not obtained minority status fromthe competent authority were also not brought before the court. Reliance isplaced on various judgments of the Apex Court also in the said proceedings.8. Learned counsel for the petitioner submitted that all thesequestions are concluded by the findings contained in Exts.P9 and P10judgments and the decision in Manager, Malankara Syrian CatholicColleges Association’s case (2009 (4) KHC 241).9. Learned Standing Counsel for the University submitted that Ext.P1cannot be accepted as a declaration for minority status. It is furthersubmitted that the relinquishment by any senior claimants, if any, have not wpc 3434 & 10727of 20095been produced by the petitioner. Section 57(3) of the Act is applicable tothe college and therefore the appointment can only be on the basis ofseniority –cum-fitness. As regards the issue regarding declaration ofminority status, learned counsel for the petitioner submitted that the saidissue is also covered against the University in the light of the decision of aDivision Bench of this court in St. Berkman’s College, Changanacherryand others v. Principal Secretary to Government, Higher EducationDepartment (2009 (2) KHC 41).10. A reading of Ext.P1 order passed by the Government itself showsthat the managements of the two colleges, viz. St. Xavier’s College,Trivandrum and All Saints College, Trivandrum moved the Government forreclassification of the above educational institutions as Backward MinorityCommunity Institutions. By Ext.P1, the Government, after considering thequestion in detail, conveyed their concurrence to those managements toexecute fresh agreements with the Government also. Therefore, it is clearfrom Ext.P1 that these two colleges were reclassified as Backward MinorityCommunity Institutions by the Government itself. So there cannot be anydoubt that the institutions are run by a minority community which isentitled for the benefit of Article 30(1) of the Constitution of India, in thematter of appointment of Principal. In Exts.P9 and P10 judgments, this wpc 3434 & 10727of 20096court directed the University to consider the request in the light of the factthat Ext.P1 re-classifies them also as Backward Minority CommunityInstitutions. The above judgments have become final. 11. Going by the counter affidavit filed by in the earlier writ petitionsalso, it is clear that the validity of Ext.P1 and the fact that the institutionsare run by a minority community, are not disputed by the University. Theonly contention raised was that seniority cum fitness principle has not beenfollowed. Therefore, the findings rendered by the judgments of this courtas Exts.P9 and P10 constitute res judicata as regards the said aspect. TheUniversity cannot ignore the findings rendered therein and the directionsissued by this court in the said judgments and cannot take a technical standthat a further declaration under the National Commission for MinorityEducational Institutions, 2006 is required.12. In St. Berkman’s College’s case (2009 (2) KHC 41), theDivision Bench partly reversed the decision of a learned Single Judge ofthis court in Manager, Assumption College and another v. State ofKerala (2008 (1) KLT 235). Therein, the learned Single Judge had takenthe view that the Manager is bound to comply with the mandatoryprovisions contained in Section 59(3) of the M.G. University Act whichwas not accepted by the Division Bench. It was held by the Division Bench wpc 3434 & 10727of 20097that “we are prima facie satisfied that they are minority educationalinstitutions entitled to get production under Article 30(1) of theConstitution of India. In para 20 of the judgment in Manager, MalankaraSyrian Catholic Colleges Association's case (2009 (4) KHC 241), thisCourt has taken the view that in the light of decision in St. Berkman’sCollege’s Case (supra), the insistence by the University that the petitionershould obtain a declaration under the Central Act, viz. NationalCommission for Minority Educational Institutions Act, 2004, cannot besustained. The same position is applicable as far as these cases also areconcerned.13. Therefore, the contention of the University that in the absence ofa formal declaration of minority status under the National Commission forMinority Educational Institutions Act, 2004 they are not entitled to get thebenefit of Article 30(1) of the Constitution of India, cannot be accepted. Infact, in para 9 of the counter affidavit, it is submitted that the collegebelongs to Christian denomination/sect and this factual aspect does notrequire proof by a declaration. It is further pointed out that the claim forprivileges/rights under Article 30(1) would fail on the application of the testof deprivation. Reliance is placed on the decision of a Constitution Benchof the Apex Court in T.M.A. Pai Foundation v. State of Karnataka wpc 3434 & 10727of 20098{(2002) 8 SCC 481) also. All these aspects have been considered inManager, Malankara Syrian Catholic Colleges Association’s case(supra) wherein the University is a party. It was held thus in para 13:“When the Apex Court has declared that Section 57(3) cannot applyto minority educational institutions even if they are aided, theUniversity cannot take a different stand that the said section does notimpose any restriction on the administrative control by themanagement over the staff. In fact, in Ext.P28 they have gone to theextent of saying that the decision in Secretary, Malankara SyrianCatholic College's case (2007 (1) SCC 386), is without adverting tothe relevant statutory provisions governing grant of minority status toeducational institutions as well as the dictum laid down by theConstitution Bench of the Apex Court. Justification is sought in thepromulgation of National Commission for Minority EducationalInstitutions Act, 2006. In fact, that point is now covered againstthem in the light of the decision of the Division Bench in St.Berkman's College's case, 2009 (2) KHC 41 and Ext.P20 judgmentwherein also the University is a party. The plea rested upon DirectPayment Agreement is also not sustainable in the light of the dictumlaid down in Malankara Syrian Catholic College's case (supra)itself. The question whether in respect of any aided institutions,Section 57(3) could be imposed, was one of the questions decided inthe said case and answered against the contesting parties.”In para 17 it was further held thus:“Therefore, the management of a minority institution is free to find wpc 3434 & 10727of 20099out a qualified person and has got very wide freedom to choose thepersonnel for holding such post. The only restriction is regardingthe qualification. Therefore, the absence of a regulation framed bythe management itself will not defeat their rights to make theappointment, as contended by the learned Standing Counsel for theUniversity.”Therefore, the reliance placed on Section 57(3) of the Act to deny the grantof approval cannot be accepted. It is not by virtue of direct paymentagreement that the Principal was appointed by the college. Since it is aminority education institution, the right to appoint the Principal is vested onthe institution itself and Section 57(3) of the Act cannot be made applicableto the petitioner’s institution as contended by the University. In Secretary.Malankara Syrian Catholic College v. T. Jose {(2007) 1 SCC 386), inpara 29 the very same question has been considered in the following terms:“Section 57(3) of the Act provides that the post of Principal whenfilled by promotion is to be made on the basis of seniority-cum-fitness. Section 57(3) trammels the right of the management to takenote of merit of the candidate, or the outlook and philosophy of thecandidate which will determine whether he is supportive of theobjects of the institution. Such a provision clearly interferes with theright of the minority management to have a person of their choice asHead of the Institution and thus violates Article 30(1). Section 57(3)of the Act cannot therefore apply to minority run educationalinstitutions even if they are aided.” wpc 3434 & 10727of 20091014. Since the legal issues raised by the petitioners are covered in theirfavour in the light of the decision of this court in Manager, MalankaraSyrian Catholic Colleges Association’s case (2009 (4) KHC 241) andespecially in the light of the directions issued by this court in Exts..P9 andP10 judgments, the petitioners are entitled to succeed in these writ petitions.15. Therefore, the impugned order produced as Exts.P11 and P15 inthe writ petitions are quashed. There will be a direction to the respondentsto approve the appointments of Fr. Joseph Mathew S.J. as Principal witheffect from the afternoon of 30.3.2007 and Fr. Sunny Jose S.J. as Principalwith effect from 31.3.2008 and appropriate orders shall be passed withintwo months from the date of receipt of a copy of this judgment. On suchgrant of approval, the respective Principals will be entitled forconsequential monetary benefits also. Till orders are passed as such, Fr.Sunny Jose S.J. is permitted to continue as Principal in St. Xavier’s College,Thumba and as the Drawing and Disbursing Officer. No costs. (T.R. Ramachandran Nair, Judge.)kav/