Kerala High Court
Sree Nithyananda Vidya Kendra vs The Principal on 17 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
WP(C) NO. 18032 OF 2021
PETITIONER:
SREE NITHYANANDA VIDYA KENDRA,
KANHANGAD-671 315,
REPRESENTED BY ITS SECRETARY, T.PREMANAND,
AGED 57YEARS, S/O RAVEENDRAN NAIR,
RESIDING AT PUTHIYA VEETTIL,
ANAND VIHAR, AZHIKODE,
KANNUR, PIN-670009.
BY ADVS.
S.SANAL KUMAR
BHAVANA VELAYUDHAN
T.J.SEEMA
RESPONDENTS:
1 THE PRINCIPAL
SWAMI NITHYANANDA POLYTECHNIC COLLEGE,
KANHANGAD-671315.
2 THE JOINT DIRECTOR,
REGIONAL DIRECTORATE OF TECHNICAL EDUCATION,
MALAPARAMBA, KOZHIKODE-673009.
3 THE SENIOR IOINT DIRECTOR OF TECHNICAL EDUCATION,
DIRECTORATE OF TECHNICAL EDUCATION, PAZHAVANGADI,
THIRUVANANTHAPURAM-695023.
4 R.NITHYANANDA KHODAY,
CHAIRMAN, GOVERNING BODY OF SWAMI NITHYANANDA
POLYTECHNIC COLLEGE, KANHANGAD-671315.
5 SEBASTIAN THOMAS,
PRINCIPAL-IN-CHARGE,
SWAMI NITHYANANDA POLYTECHNIC COLLEGE,
KANHANGAD-671315.
6 A.M.NARAYANAN,
DEMONSTRATOR, SWAMI NITHYANANDA POLYTECHNIC COLLEGE,
KANHANGAD-671315.
WP(C) Nos. 18032/2021 & 19447/2021
2
7 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION,
REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, C8,
8436, GATE NO.4, OPPOSITE RYAN INTERNATIONAL
SCHOOL, VASANT KUNJ, NEW DELHI-110070.
BY ADV SHRI.SAJITH KUMAR V., SC, ALL INDIA COUNCIL
FOR TECHNICAL EDUCATION - AICTE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.09.2021, ALONG WITH W.P.(C)NO.19447/2021 THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos. 18032/2021 & 19447/2021
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
WP(C) NO. 19447 OF 2021
PETITIONER:
SREE NITHYANANDA VIDYA KENDRA, KANHANGAD - 671
315,
REPRESENTED BY ITS SECRETARY,T.PREMANAD, AGED 57
YEARS, S/O.RAVEENDRAN NAIR,RESIDING AT PUTHIYA
VEETTIL, ANAND VIHAR, AZHIKODE, KANNUR, PIN - 670
009.
BY ADVS.
S.SANAL KUMAR
BHAVANA VELAYUDHAN
T.J.SEEMA
RESPONDENTS:
1 THE PRINCIPAL
SWAMI NITHYANANDA POLYTECHNIC COLLEGE,KANHANGAD -
671 315.
2 THE JOINT DIRECTOR
REGIONAL DIRECTORATE OF TECHNICAL EDUCATION,
MALAPARAMBA, KOZHIKODE - 673 009.
3 THE SENIOR JOINT DIRECTOR OF TECHNICAL EDUCATION
DIRECTORATE OF TECHNICAL EDUCATION,
PAZHAVANGADI, THIRUVANANTHAPURAM - 695 023.
4 THE DIRECTOR OF TECHNICAL EDUCATION
DIRECTORATE OF TECHNICAL EDUCATION,
PAZHAVANGADI, THIRUVANANTHAPURAM - 685 023.
5 R.NITHYANANDA KHODAY
CHAIRMAN, GOVERNING BODY OF SWAMI NITHYANANDA
POLYTECHNIC COLLEGE, KANAHANGAD - 671 315.
WP(C) Nos. 18032/2021 & 19447/2021
4
6 ALL INDIA COUNCIL FOR TECHNICAL EDUCATION
REPRESENTED BY ITS CHAIRMAN,
HEAD OFFICE, C8, 8436, GATE NO.4,
OPPOSITE RYAN INTERNATIONAL SCHOOL,
VASANT KUNJ, NEW DELHI - 110 070.
SRI.V.SAJITHKUMAR SC , GP SRI.JIMMY GEORGE
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 17.09.2021, ALONG WITH W.P.(C)NO.19447/2021 THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) Nos. 18032/2021 & 19447/2021
5
JUDGMENT
In W.P.(C) No.18032/2021 order Ext.P7 dated 23.01.2021
promoting the 5th respondent as Principal in charge of Swami
Nithyananda Polytechnic College, Kanhangad has been challenged
whereas in W.P.(C).No.19447/2021, orders Exts.P13 and P14
dated 01.09.2021 and 08.09.2021 respectively, have been
assailed by Sree Nithyananda Vidyakendra, Kanhangad through
its Secretary. Sree Nithyananda Vidyakendra (hereinafter referred
to as 'Vidyakendra') is a charitable society registered under the
Societies Registration Act, 1860 with headquarters at Kanhangad,
Kasaragod district. Clause 13 of the Memorandum of Association
provided that the Board of Directors of the management and the
Secretary of the Society, as per Clause 21 is authorised to present
the Kendra all the agreements. Vidyakendra established a
Polytechnic College known as Swami Nithyanada consisting of a
Governing Body constituted as per All India Council for Technical
Education (AICTE). It consists of 9 members of which 5 are from
the management, 2 Government nominees and one nominee from
the AICTE. Shri R.Nithyananda Khoday, Chairman of the
WP(C) Nos. 18032/2021 & 19447/2021
Governing Body of the Polytechnic College, whom both the
petitioners have targeted to be one-man team, is acting against
the wishes of the management whereas the practice followed is
the Governing Body will decide to issue appointment in the
institution and place it before the Board of Directors for approval
and the appointment order is finally issued by board of
management. Sri.Sebastian Thomas, principal in charge
Respondent No.5 in W.P.(C).No.18032/2021, according to the
averments, in defiance to the aforementioned provisions was
appointed by the Chairman of Governing Body without following
the meeting or with the consent of other members of the
Governing Body. In essence the appointment could not have been
made by him alone as it has to be by Board of management.
Reliance has been laid to Rule 16 of Kerala Technical Education
(Private Engineering Colleges/ Polytechnic) Service Rules and
Clause 22 of Rules and Regulations of Vidyakendra. After the
pendency of the first writ petition, Secretary of the Vidyakendra
preferred a second writ petition challenging Exts.P13 and Ext.P14
orders dated 01.09.2021 and 8.09.2021 whereby the Chairman
unilaterally appointed one Sindhu, who was working on daily
WP(C) Nos. 18032/2021 & 19447/2021
wages for the last two years as sweeper, with the consent of the
Government nominee during the interview as well as the
communication to the Principal to take steps for fixing the
interview in respect of the applications received for the post of
lecturer in Electrical Engineering, Tradesman (machinist) and
Watchman, to be without jurisdiction and power much less not
been in consonance Clause 22 of Rules and Regulations of
Vidyakendra and Clause 16 of Polytechnic Service Rules. Both the
orders do not reflect any directions/decision of Governing Body of
board of management and the appointment of the principal was
without convening of the meeting of the Governing council. In
other words, Chairman of the Governing Body cannot unilaterally
make the appointment and forward for approval to the authorities
of the technical education as it is only the management which
alone is competent to do so.
2. I have heard the learned counsel for the petitioner and
appraised the paper books as well as Annexures attached. Clause
22 of the Rules and Regulations of Vidyakendra and Clause 16 of
Polytechnic Service Rules Read thus:
"RULES AND REGULATIONS of the "SHRI NITHYANANDA
VIDYA KENDRA"
WP(C) Nos. 18032/2021 & 19447/2021
22. The Board shall make all appointments in the
institution under its charge, fix their salaries, inflict
punishments, direct transfer and retirements and grant
extension service and leave other than casual leave. The
Board shall not interfere in the internal administration of the
institutions of the Kendra.
"THE KERALA TECHNICAL EDUCATION (PRIVATE
ENGINEERING COLLEGES/POLYTECHNICS) SERVICE RULES"
16. Subject to the rules in force in similar Government
Institutions regarding qualification and method of
appointment, the vacancies in the higher grades shall be
filled up by promotion from the next lower categories if
available, according to seniority in the case of non-selection
posts, and according to merit and seniority in the case of
selection posts. All the posts of lecturers and above shall be
treated as selection posts and those below the Lecturers
shall be treated as non-selection posts for the purpose of
this rule. The appointment/promotion shall be made by the
Management on the recommendation of the Governing Body
of the College/Polytechnic as the case may be."
3. It is also interesting to meet the contents of the letter
dated 01.09.2012 (Ext.P13) in W.P(C).No.19447/2021:
"Smt. Sindhu K, W/o.K.Balakrishnan, Maniyeri veedu
Kanhangad South PO, is working as sweeper on daily wages
for the last two years at our Polytechnic and is a close
associate and devote of swami Nithyananda. We the
management committee has decided in principle to appoint
her as sweeper with the consent of Govt. nominees during
the interview. Due to Covid 19 related lockdown the
WP(C) Nos. 18032/2021 & 19447/2021
procedure for notification of the sweeper post got delayed
and in the mean time she crossed the upper age limit but has
submitted an application for the post. In this situation may I
request the Director to permit her to attend the interview as
a special case. Similar relaxation were already given at SSM
polytechnic, Tirur few years back. We are grateful to you for
such a merciful act.
Requesting for a favourable reply in this regard."
4. The contents of the aforementioned letter has not been
disputed in any of the representations on behalf of the Secretary,
Director, other members and the so called Governing council of
management addressed to the 4th respondent and despite that, it
has been challenged. The language of Ext.P13 would reveal that
it is the decision of the management committee which was duly
concerned of a government nominee.
5. As far as Ext.P14, it is only for the purpose of
completing the formalities regarding the appointments but not for
issuance of appointment or promotion as contemplated in Rule
16. Relevant portion of the same is also extracted hereinbelow:
"1. As you know, applications received for the following
posts are pending for the last so many months:
a) Lecturer in Electrical Engineering
b) Tradesman (Machinist)
c) Watchman.
WP(C) Nos. 18032/2021 & 19447/2021
2. In order to complete the formalities as per the guidelines
of Govt. of Kerala, please contact the Senior Director of
Technical Education and other Government Nominees and fix
interview on Wednesday 22-09-2021 at 11.30 am at our
Polytechnic College and confirm back to me and also to other
management Selection Committee Members well in
advance."
6. Coming to the other writ petition W.P(C).18032/21
wherein Ext.P7 has been challenged, it would be appropriate to
extract the contents of Ext.P7:
"Sri. Sebastian Thomas, Head Department in Automobile of
Engineering on pay band of 37400-67000 with AGP of
Rs.9000 promoted as Principal in the pay band of 37400-
67000 with AGP of Rs. 10000 provisionally and posted as
such in the Swami Nithyananda Polytechnic College,
Kanhangad against the vacancy of Sri.K.P.S.Subhash,
Principal who retired from service on 30.4.2020 AN on
superannuation.
This promotion is subject to the provisions of the Kerala
Technical Education (Private Engg. Colleges/Polytechnics)
service rules and such other rules or orders issued from time
to time by the Government or other competent authorities.
This promotion will take effect from 01.05.2020 FN."
8. The promotion is subject to the provisions of the Kerala
Technical Education Service Rules and such other Rules. Thus the
management is not precluded from taking any action as per Rule
WP(C) Nos. 18032/2021 & 19447/2021
16 stated above. The genesis of the submission and pleadings
leads to irresistible conclusion that it is a discord amongst the
Chairman and other members of the board of management and
under that garb, focus has been laid upon other issues by court as
arena. Such infighting amongst the members cannot be subject
matter of a cause of action purported to have arisen in this case
as noted above. There is independent remedy but not under
Article 226 of the Constitution of India. I do not find any
justification warranting interference of Judicial review. The writ
petitions are accordingly dismissed.
Sd/-
AMIT RAWAL
JUDGE
nak
WP(C) Nos. 18032/2021 & 19447/2021
APPENDIX OF WP(C) 18032/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE MEMORANDUM OF
ASSOCIATION AND RULES AND REGULATIONS OF
THE PETITIONER INSTITUTION DTD.
14.9.1964
Exhibit P2 A TRUE COPY OF THE LETTER WITH
SUPPORTING DOCUMENTS SENT BY THE 6TH
RESPONDENT TO THE 4TH RESPONDENT DATED
14.10.2019
Exhibit P3 A TRUE COPY OF THE NOTICE CONVENING THE
MEETING OF THE BOARD OF DIRECTORS DATED
1.2.2020
Exhibit P4 A TRUE COPY OF THE DRAFT ORDER OF
APPOINTMENT OF 6TH RESPONDENT AS
LECTURER DATED NIL
Exhibit P5 A TRUE COPY OF THE LETTER DATED 6.2.2021
THE PETITIONER VIDYA KENDRA ADDRESSED
THE 4TH RESPONDENT
Exhibit P6 A TRUE COPY OF THE LETTER DATED
13.2.2021 THE PETITIONER VIDYA KENDRA
ADDRESSED THE 3RD RESPONDENT.
Exhibit P7 A TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT PROMOTING THE 5TH RESPONDENT
AS PRINCIPAL DATED 23.1.2021
Exhibit P8 A TRUE COPY OF THE OBJECTION PLACED ON
RECORD BY THE SECRETARY AND TREASURER OF
THE KENDRA ALONG WITH ANOTHER DIRECTOR
DATED 24.8.2021.
Exhibit P9 TRUE COPY OF THE KERALA TECHNICAL
EDUCATION (PRIVATE ENGINEERING COLLEGES/
POLYTECHNICS) SERVICE RULES (G.O.M.S
NO.90/75/H.EDN. DATED 6.6.1975.
Exhibit P10 A TRUE COPY OF THE SPECIAL RULES FOR THE
KERALA TECHNICAL EDUCATION SERVICE RULES
(G.O(MS) NO.284 DATED 2.9.1967.
Exhibit P11 A TRUE COPY OF THE KERALA TECHNICAL
EDUCATION SERVICE (AMENDMENT) SPECIAL
RULES, 2010 [GO(P) NO. 366/2010/H.EDN.
DATED 8.11.2010.
Exhibit P12 A TRUE COPY OF THE AICTE PAY SCALE,
SERVICE CONDITION AND MINIMUM
WP(C) Nos. 18032/2021 & 19447/2021
QUALIFICATIONS FOR THE APPOINTMENT OF
TEACHERS AND OTHER ACADEMIC STAFF SUCH
AS LIBRARY AND PHYSICAL EDUCATIONAL
PERSONNEL IN TECHNICAL INSTITUTIONS AND
MEASURES FOR THE MAINTENANCE OF
STANDARDS IN TECHNICAL EDUCATION -
(DIPLOMA) REGULATION, 2019 DATED
1.3.2019.
WP(C) Nos. 18032/2021 & 19447/2021
APPENDIX OF WP(C) 19447/2021
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE MEMORANDUM OF
ASSOCIATION AND RULES AND REGULATIONS OF
THE PETITIONER INSTITUTION DTD.
14/9/1964.
Exhibit P2 A TRUE COPY OF THE KERALA TECHNICAL
EDUCATION (PRIVATE ENGINEERING
COLLEGES/POLYTECHNIC) SERVICE RULES,
1975 (GENERAL RULES),
(G.O.MS.NO.90/75/H.EDN. DATED 6/6/1975).
Exhibit P3 A TRUE COPY OF THE MINUTES OF THE
GENERAL BODY OF THE SWAMI NITHYANANDA
VIDYA KENDRA DATED 12/10/2019.
Exhibit P4 A TRUE COPY OF PHOTO COPY OF THE ORDER
OF THE 5TH RESPONDENT DATED 23/1/2021
APPOINTING SEBASTIAN THOMAS AS PRINCIPAL
OF NITHYANANDA POLYTECHNIC COLLEGE.
Exhibit P5 A TRUE COPY OF THE COMMUNICATION OF THE
5TH RESPONDENT TO THE 1ST RESPONDENT
DATED 1/2/2021.
Exhibit P6 A TRUE COPY OF THE LETTER SENT BY THE
MEMBERS OF THE GOVERNING BODY DATED
20/2/2021.
Exhibit P7 A TRUE COPY OF THE MINUTES OF THE
MEETING OF THE BOARD OF DIRECTORS OF THE
NITHYANANDA VIDYA KENDRA DATED
22/2/2021.
Exhibit P8 A TRUE COPY OF THE PHOTO COPY OF THE
ORDER OF THE 5TH RESPONDENT DATED
23/2/2021.
Exhibit P9 A TRUE COPY OF THE COMMUNICATION OF THE
5TH RESPONDENT TO THE 1ST RESPONDENT
DATED 8/3/2021.
Exhibit P10 A TRUE COPY OF THE MINUTES OF THE
MEETING OF THE CORE COMMITTEE DATED
17/7/2021.
Exhibit P11 A TRUE COPY OF PHOTO COPY OF THE
COMMUNICATION OF THE 5TH RESPONDENT TO
THE 1ST RESPONDENT DATED 20/7/2021.
Exhibit P12 A TRUE COPY OF THE PHOTO COPY OF
COMMUNICATION OF THE 5TH RESPONDENT TO
WP(C) Nos. 18032/2021 & 19447/2021
THE 1ST RESPONDENT DATED 20/7/2021.
Exhibit P13 A TRUE COPY OF PHOTO COPY OF THE
COMMUNICATION OF THE 5TH RESPONDENT TO
THE DIRECTOR OF TECHNICAL EDUCATION DTD.
1/9/2021.
Exhibit P14 A TRUE COPY OF THE PHOTO COPY OF THE
COMMUNICATION OF THE 5TH RESPONDENT TO
THE 1ST RESPONDENT DTD. 8/9/2021.
Exhibit P15 A TRUE COPY OF THE LETTER DTD. 12/9/2021
GIVEN BY THE REPRESENTATIVES OF THE
MANAGEMENT OF THE GOVERNING BODY TO THE
1ST RESPONDENT.
Exhibit P16 A TRUE COPY OF THE LETTER DTD. 12/9/2021
SENT BY THE REPRESENTATIVES OF THE
MANAGEMENT IN THE GOVERNING BODY TO R2,
R3 AND R4.
Exhibit P17 A TRUE COPY OF THE LETTER DTD. 12/9/2021
SENT BY THE REPRESENTATIVES OF THE
MANAGEMENT IN THE GOVERNING BODY TO R5.
