2009 (2) KHC 44
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Chief Justice V.P.Gopalan Nambiyar and Justice T.Chandrasekhara Menon
O.P. No. 982 of 1977
Rt.Rev.Dr.Jerome M.Fernandez v. University of Kerala and Others
Advocates appearing for the Parties : M/s.George Varghese Kannanthanam,P.C.Joseph; V.Bhaskaran nambiar,T.I.Daniel
J U D G M E N T
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V. P. Gopalan Nambiyar, C. J.
1. This writ petition is by the Bishop of Quilon who is the Manager of the Fathima Mata National College, Quilon, a college run by a minority community in this State, entitled to the fundamental rights guaranteed by Article 30(1) of the Constitution. The question agitated is regarding the vires of Chapter XXXVII. Statute 9 of the First Statute of 1972 replaced since the filing of this writ petition, by Chapter XXIII, Statute 21 of the First Statute of 1977.
2. The Principal of the College appointed by the Management took leave for a short while and the petitioner appointed one of the members of the Staff – not the seniormost – to perform the duties on the Principal during the absence of the permanent incumbent. The appointment had to be approved by the University under Section 57 sub-section (9) of the Act. This was declined by Ext. P2 order of the Registrar and the writ petitioner has come up to quash Ext. P2 order and for a declaration that the provisions of the First Statute referred to above is violative of the fundamental right under Article 30(1) of the Constitution. We may notice the provisions of Section 57 sub-sections (2), (3) and (9) of the Kerala University Act, 1974 which are as follows:
"57. Appointment of teachers in private colleges.— (1)xxxx xxxx xxxx
(2)Appointments of principals shall be made by the educational agency by promotion from among the teachers of the college or all the colleges, as the case may be, or by direct recruitment.
(3)Where thy appointment of principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness.
xxxx xxxx xxxx
9. Every appointment under this section shall be reported to the University for approval." turning now to the First Statute 1977, we are concerned with the provision of Chapter XXIII, Statute 21. That Statute reads:
"21. Principal's Responsibilities.— In every college, the Principal shall be the Head of the College and shall be responsible for the internal management and administration of the college. In the absence of Principal the seniormost Professor or in his absence the seniormost Lecturer of the College shall be in charge of the duties of the Principal. No person shall be appointed as a Principal who does not possess the qualification and experience prescribed by the Regulations."
Counsel for the petitioner has taken serious objection to the insistence on the appointment of the seniormost Professor, or, in his absence of seniormost Lecturer to perform the duties of the Principal in the leave vacancy. This, according to the petitioner is a serious infringement of the rights of the minority community, recognised time again by the Judicial decisions of this Court. Counsel cited to us the various decisions which have stressed the paramount position of the Headmaster of an educational institution or the Principal of the College, and the untrammelled right of a minority community in choosing that functionary. Apparently, the earliest exposition of the legal position came from a Division Bench of this Court in Aldo Maria Patroni v. Kesavan and Others, AIR 1965 Ker.75. Speaking about the position of the Headmaster of an educational institution, a Division Bench of this Court observed:
"14. The post of the Headmaster is of pivotal importance in the life of a school. Around him wheels the tone and temper of the Institution: on him depends the continuity of its traditions, the maintenance of discipline and the efficiency of its teaching. The right to choose the headmaster is perhaps the most important facet of the right to administer a school: and we must hold that the position of any trammel thereon – except to the extent of prescribing the requisite qualification and experience – cannot but be considered as a violation of the right guaranteed by Article 30(1) of the Constitution. To hold otherwise will be to make the right "a teasing illusion, a premise of unreality."
These observations were adopted and applied by a Full Bench of this Court to the post of the Principal of a College in Rev. Mother Provincial v. State of Kerala and Others, 1969 KLJ 863. In paragraph 38 of the judgment, the observations that we have quoted from Patroni's case were noticed' and applied mutatis mutandis to the post of a Principal. It was observed that beyond prescribing the qualifications and experience and fostering the interests of the institution the imposition of any trammels cannot but be considered as a violation of the right guaranteed by Article 30(1) and also as violative of Article 19(1)(f) of the Constitution. The Full Bench stressed that so far as the post of Principal is concerned it should be left to the management to secure the services of the best person available, and that this was of such paramount importance that the prospects of advancement of the staff must yield to it. To confine the choice of Principal to the closed shop within the members of the staff of the college itself, and to permit a choice from outside only after exhausting the closed shop, would, it was pointed out well have the result of condemning the post to a level of dull mediocrity. Therefore it was pointed out that a provision which compels the management to appoint only a teacher of the college or the colleges, unless he be found unsuitable was clearly in derogation of the powers of the management and not calculated to further the interest of the institution. The decision was affirmed in the Supreme Court in State of Kerala v. Very Rev. Mother Provincial, Al R1970 SC 2079. The principle stressed by a Full Bench ruling was affirmed and followed by a Division Bench of this Court in Rt. Rev. Dr. M. M. John v. Government of Kerala, 1971 KLT 875" at 877 & 878. Again, a Full Bench of this Court had occasion to examine the position, with respect to the provisions of the University Act of 1972 which contained substantially similar provisions as the Act of 1969. The Full Bench followed the principle in V. Rev. Mother Provincial v. State of Kerala (vide paragraphs 13 and 14 of 1969 KU 8632). There was a review of certain portions of this judgment. But the position as far as this aspect is concerned, remained unaffected — vide 1977 KLT 62.
3. Counsel further emphasised the position with respect to the decision of the Supreme Court in St. Xaviers'College Case, AIR 1974 SC 1389 – paragraphs 135 to 137,138,144 and 142. Counsel else relied on Article 26(2) of the Universal Declaration of Human Rights 1948, Article II of the Protocol for European Convention of Human Rights and Fundamental Problems, 1950. The Supreme Court decision highlights and emphasise's the paramount position of the minority community's rights, and the two international declaration emphasise the right of a parent to choose the educational institutions for the training of their children, and generally to direct and fashion their educational career..
4.In the light of the principles espoused by the judicial decisions and well-recognised by the authorities, we have little doubt that the provision in the First Statute which obliges the management to choose and appoint as Principal even in a temporary vacancy, the senior-most Professor, or in his absence the senior-most Lecturer, of the college is violative of the fundamental right under Article 30(1) of the Constitution. We allow this writ petition and declare accordingly. There will be no order as to costs.