JOSEPH KACHAPPILLY Vs. STATE OF KERALA

JUDGEMENT

(1.) THESE Original Petitions are filed by the managements of private colleges challenging the order of the Government in G. O. MS No. 15/94/h. Edn. dated 31. 1. 1994 directing the constitution of a Screening committee for giving placement to Lecturers. In O. P. No. 9942/96 petitioner had challenged Clause 4 of the Ordinance prescribing the workload and staff pattern of the teaching staff. In O. P. No. 4884 of 1997 the petitioners/ Lecturers seek for directions to regularise their promotions effected by the management. In o. P. No. 8881 of 1996 petitioners/ Lecturer challenges the order of the screening Committee of the Government deferring the promotion to Readership. The University Grants Commission had formulated a scheme for revision of pay scales of teachers of all the Universities and Colleges and offered to bear the 80 per cent of the expenditure incurred for a period of five years. The government while accepting the scheme of the University Grants Commission issued orders in G. O. (P) No. 79/90/ H. Edn. dated 27. 3:1990, in paragraph 3 of the order it is stated that the Government of Kerala after examining the U. G. C. Scheme including revision of scales of pay has decided to implement the same in the State. In paragraph 4 of the order, the Government approved the scheme appended as annexure- i and ordered that the same will be implemented in the state with effect from 1. 1. 1986. annexure- i deals with the scheme of revision of pay scales of teachers in the Universities and affiliated colleges in Kerala for maintenance of standards in higher education. annexure- i, Clause 3. 02 deals with the Principals of Colleges. Clause IV deals with the recruitments and qualifications to the posts of Lecturer, Reader and Professor, and that selection shall be on the basis of merit. It further states that the Lecturers who fulfils the criteria prescribed in the Scheme will be eligible for further promotion. Explanation to the said clause is relevant which is extracted below: "explanation :- The selection of candidates will be done by the Kerala Public Service Commission in the case of Government Colleges and by the Education Agencies as prescribed in the statutes of the Universities in the case of Private Colleges". Clause V deals with the Career Advancement. Sub-clause 5. 04 is the clause under challenge. The relevant portion of sub-clause 5. 04 is extracted: "promotion to the post of Reader will be through a process of selection by a Selection Committee to be set up under. the Statutes/ ordinances of the University concerned or other similar committee set up by the appointing authorities in accordance with the guidelines laid down by the UGC from time to time". In purported exercise of implementation of the scheme, the Government by the impugned order in G. O. (MS) No. 15/94/h. Edn. dated 31. 1. 1994 ordered the constitution of a Screening Committee for the affiliated private colleges in the State with the officials of the Government and the university as members of the Committee for giving placement to Lecturers. Challenging this constitution of Screening Committee, the above Original Petitions have been filed.

(2.) IN O. P. No. 8881/96 the order of the Screening committee constituted by the Government deferring of promotion to the post of reader to the petitioner is under challenge. The Governmenthas constituted a screening Committee for giving placement to Lecturers in the affiliated private colleges in the State. The Government has interpreted this provision of placement to Lecturers as to include promotion to the post of Readers in paragraph 6 of the counter. Thus the Government has understood that the implementation of UGC Scheme enables them to constitute a Screening Committee for selection of Readers from among the Lecturers and Selection Grade Lecturers from among the Lecturers. After a careful consideration of the whole matter, it is clear that neither the UGC Scheme nor the Acts of the University or the statutes or Ordinance made thereunder enable the Government to constitute a screening Committee. Besides such a constitution of a Screening Committee by the Government would be clearly against the fundamental rights of management guaranteed under Art. 30 (1) of the Constitution of INdia. The position regarding the right of management has been well settled by a Full Bench decision of this court in Mother Provincial v. State of Kerala (1969 KLT 749 FB ). IN Ahmedabad st. Xavier's College Society v. State of Gujarat (1974 (1) SCC 717) a constitution Bench of the Supreme Court held that the choice in the personnel management is part of the administration. His Lordship Khanna, J. has observed in the judgment that the selection and appointment of teachers for an educational education is one of the essential ingredients of the right to manage an educational institution and the minority institution can plainly not be denied such a selection and appointment without infringing Art. 30 (1) of the constitution. A Full Bench of the Kerala High Court in Mother Provincial v. State of Kerala (1969 KLT 749) held that the imposition of any trammel excepting the prescription of qualification and experience in the appointment of a headmaster cannot but be considered as a violation of the right guaranteed under Art. 31 of the Constitution and by Art. 19 (1) (f ). The Supreme Court in state of Kerala v. V. R. M. Provincial (1970 (2) SCC 417) while upholding the judgment of the Full Bench held that Art. 30 (1) contemplates two rights, viz. , right to establish minority's choice and the next is administration of such intimation. IN Ahamedabad St. Xavier's College Society v. State of Gujarat (1974 (1) SCC 717) a Constitution Bench of the Supreme Court held that the choice in the personnel management is a part of administration for the State and its educational Authorities and to prescribe the qualifications of teachers. But once the teachers possessing the requisite qualifications are selected by the minorities for their educational institutions, the State would have no right to veto the selection of teachers. Selection and appointment of teachers for educational institution is one of the essential ingredients of the right to manage an educational institution under the minorities, and they can have no right of appointment without infringing Art. 30 (1) of the Constitution.

(3.) IT is rather surprising that the Education Department which should be familiar with the series of decisions relating to the minority rights in Kerala referred above, thought it fit that they can constitute a screening Committee for placement of Lecturers and appointment of Readers. As per the clear, mandates laid down by the Supreme Court, referred above, such government Order is clearly unconstitutional and illegal. Whether it is the placement of Lecturers to the post of Selection Grade Lecturers or appointment of Readers from the post of Lecturers, it is clear case of promotion. Senior grade Lecturers are in the scale of pay of Rs. 3,000-5,000/- whereas the Lecturer is in the scale of pay of Rs. 2,200-4,000/ -. Therefore, the Government cannot be permitted to say that this is only a placement so that they can constitute a screening Committee of their own.