- (1.) Petitioner and 4th respondent are Professors working in St. George's College, Aruvithura of which the first respondent is the Manager. When a vacancy of Principal arose the petitioner who is the seniormost professor was not preferred. Instead the 4th respondent, a junior, third person in the seniority list was appointed as Principal. That appointment was approved by the University. Petitioner challenges Ext. P2 order by which the University granted approval to the appointment of the 4th respondent.
(2.) S.59 of the Gandhiji University Act, 1985 as amended by Gandhiji University Amendment and Special Provisions Ordinance 5 of 1988 provide for the appointment of Principal on the basis of seniority cum fitness. How the appointment on the basis of seniority cum fitness is to be made came up for consideration before the Full Bench in Rev. Mother Provincial & Others v. State of Kerala & Others ( 1969 KLT 749 ) while dealing with the similar provision contained in the Kerala University Act. Their Lordships stated the law as follows:- "As it is, however, the provisions for an appeal is so unreasonable an interference with the right of management that the attack both under Art.19(1)(f) and under Art.30(1) must prevail. At the same time we would like to make it clear that the test of seniority cum fitness prescribed in the sub-section does not mean that promotion is to be on the principle of seniority subject to fitness which is the test adopted for non. selection post in the several service rules of the State. Seniority cum fitness means that due and equal regard should be paid both to seniority and to fitness, and since fitness is a matter of degree, it would, appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment than he is. We also think that, notwithstanding the wording of the sub-section which would appear to permit of direct recruitment only if there is no persons available for promotion possessing the necessary qualifications, if the basis of the promotion is to be seniority-cum fitness, it would be open to the management to resort to appointment otherwise than by promotion if there is no person fit for promotion-An unfit person is not entitled to promotion merely because he possesses the necessary qualifications." This statement of the law was again reiterated by a Full Beach in W. A. 324/73. In the light of the principle thus expressed regarding seniority cum fitness, it is evident that senior person can be overlooked in favour of a junior who is demonstrably more fit for appointment than the senior. The first respondent after having ordered the posting of the 4th respondent as Principal of the College communicated the same to the University for approval. The petitioner objected to the appointment and requested the Vice-Chancellor not to grant approval to the appointment. Ext- P1 is the representation put in by the petitioner before the Vice-Chancellor. After overruling the objections raised by the petitioner the University granted the approval and the petitioner was informed of that fact by Ext. P2 order.
(3.) The contention raised by the petitioner is that when the petitioner objected to the appointment the University ought to have gone into the question as to whether the 4th respondent was meritorious than the petitioner. The Vice-Chancellor also should have gone into the question as to whether the first respondent was competent to function as an educational agency. Since the Vice-chancellor refused to examine the above issues, it is alleged that the approval granted to the 4th respondent is illegal.;