Managing Committee, ... v. M.J Kamalakshi And O...

Sangalad, J.:—

This revision is directed against the judgment and decree dated 7.12.1999 passed by the Karnataka Educational Appellate Tribunal allowing MA (EAT) No. 60/1993 filed by the first respondent herein.

2. The Tribunal has set aside the appointment of Petitioner No. 3 as Principal and has further directed the first respondent to be appointed as the Principal relying upon Statute No. 24.3 of the Bangalore University Statutes and further held that the post of Principal is a promotional one.

3. The first respondent, was appointed as a Lecturer on 28.7.1971 in the College of Fine Arts by the first petitioner. On appreciation of her work, she was promoted as Assistant Professor in the year 1986, as a Reader in the year 1989 and as Professor in the year 1990. Her rank in the seniority list for the year 1989-1990 was at Serial No. 2, next to Professor M.S Nanjunda Rao, the then Principal of the College. He had attained the age of super-annuation in July 1992. However he continued as Principal upto December 1992. He is none other than Petitioner No. 3 in this revision. The first respondent gave a representation on 16.7.1992 with a request to the Principal that she was the senior most person eligible for the post of Principal after the retirement of the then Principal. The first petitioner without considering her representation, advertised for the post of Principal on 12.9.1992 The first respondent being the senior most in the college, applied for the said post on 18.9.1992 Even though she was interviewed, without announcing the result, the post was again advertised and finally the 5th respondent (respondent No. 3) in this revision, who did not appear for interview has been appointed as the Principal of the College by order dated 4.11.1994 The appellant being aggrieved by the said order, preferred the appeal to quash the order dated 4.11.1994 appointing respondent No. 3 as the Principal of the College. Her main contention was that she was the senior most lecturer, next to the Principal in seniority. As such, she could have been appointed as the Principal instead of respondent No. 3.

4. Before the Tribunal, all the respondents have filed their objections contending that the appeal was not maintainable as the Tribunal has no jurisdiction to entertain this appeal. It is stated that the College of Fine Arts of Chitrakala Parishath is not a private educational institution as defined under Section 2(d) of the Karnataka Private Education (D & C) Institutions Act, 1975. This Institution is not recognised by the State Government and it is not a constituent of Bangalore University. It is further contended that there is no order communicating that the service conditions of respondent No. 1 are affected as mentioned in Section 7 of the Act. It is further stated that respondent No. 1 had attended the interview. As such, she could not contended that the post of a Principal was a promotional one. The whole contention of the respondents is that it is not a selection post.

5. Basing upon these pleadings, the Tribunal has raised three points for determination, namely:

1. Whether the appellant has made out a case to quash the order of appointment of the 5th respondent (present respondent No. 3) as Principal of the College?

2. Whether the appellant has made out a case for her appointment as the Principal of the College?

3. What relief?

All the points are held in favour of respondent No. 1. Being aggrieved by this, the present revision arises.

6. The Tribunal has relied upon Statute No. 24.3 of the Bangalore University Statutes which reads as under:

“24.3: The senior most teacher in an affiliated college of the status of Professor or Reader shall be chosen for appointment as the Principal”.

The method of recruitment in Chapter-2 of the Disciplinary control Rules of the Respondent-Management reads as under:

“Any appointment arising for a period of more than three months in the college of Fine Arts shall be made by selection among the persons who had applied in pursuance of advertisement”.

According to this rule, it was obligatory on the part of the Management to appoint respondent No. 1 being the senior most professor as the Principal of the College. Though other candidates were available, the candidate who did not even apply for the post was selected as the Principal. In this regard, the Tribunal has observed as follows:

“Therefore it appears to my mind that the respondent No. 5 has been selected and appointed as a principal in flagrant violation of the Statute No. 24.3 of the Bangalore University Statutes and also against the method of Recruitment adopted by the Management. Justice and fair play demands that the respondent-Management ought to have appointed the appellant being the senior most Professor in the college to the post of the Principal both by her seniority and also by the process of selection as she had appeared for interview and was among the four candidates that were found eligible”.

Further relying upon the decision in District Registrar, Palghat v. M.B Koyyakutty . AIR 1979 SC 1060. the impugned judgment came to be passed.

7. Mr. Mahale, learned Senior Counsel took up various contentions. But this case revolves mainly on one point and that is, whether the post of the Principal of this Chitrakala Parishath is a promotional post or a selection post.

8. Mr. Mahale submitted that the Tribunal has no right to give direction to the Government to appoint any person as the Principal. At the best, if the Tribunal comes to the conclusion that the process of appointment of Principal was not in accordance with law, it could have set aside the appointment. He relied upon number of decisions, namely, in the case of Dr. Jai Narayan Mishra v. The state of Bihar . AIR 1971 SC 1318. wherein it is stated that the appointment to an ex-cadre selection post made by the State Government cannot be interfered with normally by the High Court. In the matter of filling a selection post, the question of seniority is not relevant. The selection is made solely on the basis of merit. He strenuously submitted that the post of the Principal of this Chitrakala Parishath is a selection post. As such, seniority if any not taken into consideration, there is no violation of rules. He also relied upon another case namely, Government of Orissa v. Haraparasada Das wherein it has held as follows:

“(A) Constitution of India, Article 16-Appointment - Vacancies notified select list prepared Government taking policy decision to not fill posts-Court cannot interfere and direct Government to make appointments”

Further, in para-8 of the above said decision, it is observed that:

“……..it was not open to the Tribunal to direct the Government to fill up those posts even though it had good reasons not to do so”……..

So also if Government decides not to make further appointments for a valid reason, it cannot be, said that it has acted arbitrarily by not appointing those whose names are included in the selection list. Whether to fill up a post or not is a policy decision and unless it is shown to be arbitrary, it is not open to the Tribunal to interfere with such decision of the Government and direct it to make further appointment”.

The above stated principle is not applicable as the process itself was arbitrary one.

9. Mr. Mahale strenously relied upon these decisions and submitted that the Tribunal has committed an error by giving direction to appoint respondent No. 1 as a Principal.

10. Mr. Mahale relied upon other decisions which support these two decisions already cited by him. Hence I find that it is unnecessary to repeat all the decisions. His main contention is that the post of principal is a selection one and not a promotional one. Even assuming that there is some error in appointing the Principal, the Tribunal cannot give direction to appoint respondent No. 1 as the Principal.

11. Mr. Ashok B. Patil opposed this submission. The very appointment of the Principal-respondent No. 5 (present respondent No. 3) was done arbitrarily. Even he had not applied for this post. There were other eligible candidates. One of them was respondent No. 1. In view of these facts and circumstances of the case, the process that has been exercised by the Chitrakala Parishath is no less than arbitrary.

12. It appears that there is some force in this submission.

13. Be that as it may, as far as the seniority of respondent No. 1 is concerned, there is not dispute. Even assuming for a moment that it is a selection post, proper advertisement should be taken, proper procedure should be followed. In the case on hand, I think there is some arbitrariness in dealing with this aspect. At one breath, the appellants contend that there are no specific rules, but in the second breath they say that there are rules to make appointment of a Principal. Of late, when the arguments were going on, they have come up with some regulations alleged to have been issued by the Director of Technical Education. But the appellants have failed to bring to my notice that these rules have any authenticity or sanctity. These rules have not been notified in any of the Gazettes. The College of Fine Arts managed by Chitrakala Parishath is affiliated to Bangalore University. In my opinion, when there are no specific rules framed as far as this Fine Arts College is concerned, this Institution is governed by the rules framed by the Bangalore University. The other provisions are not relevant to decide this case. To cut the long story short, we shall have to see what are the rules of Bangalore University in the case of appointment of a Principal. The Statute No. 24.3 of the Bangalore University Statutes makes it crystal clear that it is a promotional post. It is also not in dispute that respondent No. 1 is the senior most professor and she has got requisite qualifications. She might be suffering from one or the other qualifications that are strictly required by the Institute. When none of the candidates possesses these qualifications, it has to be seen that out of the lot, who is the best. She has not only the requisite qualifications, but also the seniority. Once I hold that the rules framed by the Bangalore University are applicable to this post, it goes to show that this post is a promotional one and the Tribunal has rightly considered this post as a promotional one and further, has rightly relied upon the decision in the case of District Registrar Palghat v. M.B Koyyakutty supra. According to this decision, a direction can be given by the Tribunal to appoint such and such a person for the post. Judging from any angle, the respondent No. 1 stands on a better footing and there is already a judgment in her favour. There is no reason for setting aside the judgment dated 7.12.1999 made by the Educational Appellate Tribunal. Hence, the appeal stands dismissed.