Decided on September 02,2003

P.M. SURESH Appellant


- (1.) Does a provision providing for promotion to the post of Principal of a College on the basis of seniority cum fitness permit a comparative assessment This question arises in the context of the interpretation of S.59(3) of the Mahatma Gandhi University Act, 1985. Almost identical provisions of different University Acts have been considered by two different Full Benches of this Court in Rev. Mother Provincial v. State of Kerala ( 1969 KLT 749 ) and Benedict Mar Gregorious v. State of Kerala ( 1976 KLT 458 ). In Mother Provincials case (supra), it was held that a senior person can be overlooked in favour of a junior, who is demonstrably more fit for the appointment. This view was reiterated in the latter decision in Mar Gregoriouss case (supra). However, when the present appeals were placed before the Division Bench, it was urged that in view of the decision of the Supreme Court in Union of India v. Lt. General Rajendra Singh Kadyan 2000 (6) SCC 698 , the view taken by the Court has become unsustainable. Thus, the matter was referred to a Full Bench. Learned Counsel for the parties have referred to the facts in W.A. No. 3085 of 2000. These may be briefly noticed.
(2.) The post of Principal was likely to fall vacant on June 30, 1999. In anticipation, on May 24, 1999, the College management invited applications for the post of Principal. The applications had to be submitted on or before May 29, 1999. A written test was held. Thereafter the candidates were interviewed on June 11, 1999. Vide order dated June 14, 1999 the second respondent, who was admittedly junior to the appellant, was appointed as the Principal with effect from the afternoon of June 30, 1999. At that time, the appellant was working as a Senior Lecturer (Selection Grade). The second respondent had not yet been promoted.
(3.) S.59(9) of the Act provides for a remedy of Appeal before the University Appellate Tribunal. Aggrieved by the order of promotion of the second respondent, three persons, who were admittedly senior to him including the two appellants in the appeals before us, approached the Tribunal through three separate appeals. It was inter alia pleaded that the order of promotion was in violation of the provisions of the Act. The second respondent was not eligible for promotion to the post of Principal, as he did not fulfill the essential qualification. It was further alleged that the action was malafide.;

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