Jawahar Lal Gupta, C.J.

Does a provision providing for promotion to the post of Principle of a College "on the basis of seniority-cum-fitness" permit a comparative assessment? This question arises in the context of the interpretation of Section 59(3) of the Mahatma Gandhi University Act, 1985. Almost identical provisions of different University Acts have been considered by tow different Full Benches of this Court in Rev. Mother Provincial v. State of Kerala (1969 KLT 749) and Benedict Mar Gregories v. State of Kerala (1969 KLT 458). In Mother Provincial's 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 later decision in Mar Gregorios's 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.Ltd. 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. Section 56(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.

4. The claim of the appellants was contested by the respondents. It was inter alia pleaded that Section 59(3) permitted "a comparative assessment" of the candidates. Thus, the selection could be made on the basis of a written test and interview. The second respondent had been appointed as a Lecturer (Selection Grade) vide order dated October 1,1999, with effect from Jan.17,1995. Thus, he was eligible. The selection was fair and reasonable. On this basis, it was pleaded that the Appeals deserved to be dismissed.

5. The matter was considered by the Tribunal. It was inter-alia held that:

1. The Management can choose a junior person if it can be shown that he was demonstrably more fit than the senior. It was the bounden duty of the selection committee to give reasons as to why one was preferred to another and particularly when they had selected a junior (vide Para 61 of the order at Ext.P1).

2. The candidates had experience ranging form 19 years to 33 years. The selection committee had fixed a total of 50 marks. Only 10 marks were allotted to the "service weight age." Major portion of the marks were earmarked "towards factors regarding fitness.’ The length of service "was not given due weight age." Thus, "there was a clear violation of Section 59(3) of the Mahatma Gandhi University Act (Vide Paragraph 64)

3. There was no indication in the file "as to why the second respondent was preferred to the appellant, who is admittedly junior. (Paragraph 64)

4. The "second respondent was not unqualified to apply for the post of Principal and th