A.K. BASHEER, J.

1. Some important questions pertaining to the right of the management of private aided colleges, which claim minority status, have cropped up in this bunch of Writ Petitions.

2. The primary question that falls for consideration is whether the management of a minority institution is bound to appoint the Head of the Institution only on the basis of “seniority cum fitness” as provided under S.59(3) of the Mahatma Gandhi University Act, 1985.

3. The other incidental or ancillary question that has been raised is:

Can the Government insist that the management shall give charge of Drawing and Disbursing Officer in the absence of Principal only to the senior-most teacher?

4. These Writ Petitions are at the instance of the managements of private aided colleges and their appointees-Principals. It is contended by them that the Government cannot put any fetters on the management of a minority institution to select and appoint a candidate of its choice, as the Head of the institution. It is further contended that the right conferred on a religious minority institution under Art.30(1) of the Constitution of India does not brook any kind of interference in the administration of its affairs, either from the Government or the University.

5. The post of Principal in the colleges involved in these Writ Petitions had fallen vacant some time back. It is on record that the managements of these institutions had selected and appointed teachers of their choice to head their respective institutions. The specific case of the petitioners is that the selected candidates are qualified senior teachers (not of course the senior-most). They possess requisite qualifications prescribed in the relevant University Act and Statutes and they are therefore fit and suitable to hold the post of Principal of the respective institutions.

6. The colleges had forwarded the orders of appointment to the University within whose jurisdiction and administrative control these colleges come. However the University has not approved the appointments in most of the cases, except in a few. In those cases in which the University has responded, the managements were directed to produce a certificate stating that seniority of no teacher in the college had been overlooked while making the appointment. In one instance, the management was informed that approval cannot be granted since selection was not made in conformity with the statutory mandates. In yet another instance, appointment was approved for a short duration allowing the selected teacher to function as the Drawing and Disbursing Officer only, and it was specifically ordered that he shall not be entitled to exercise any other statutory powers of the Principal, except to draw and disburse money to the staff and students.

7. In short, the Government took the view that the appointments cannot be approved unless the managements produced documents to show that selection had been made on the basis of seniority-cum-fitness as provided under S.59(3) of the Mahatma Gandhi University Act. Consequently the Government informed the University that unless and until such documents were produced, the selected candidates shall not be allowed to function as Drawing and Disbursing Officer of the college and that only the senior-most teacher should be appointed as such till a Principal was selected in accordance with the statutory provisions and also till his appointment was approved by the University.

8. It appears that on October 16, 2006 the Government issued Ext.P6 letter (W.P.29036/2006) bearing No.23943/D2/06/H.Edn. “instructing” the Deputy Directors of Collegiate Education that “the approval of salary bills from the month of October 2006 presented by the Drawing and Disbursing Officers of aided colleges shall be drawn only on production of a certificate from the University concerned, to the effect that the senior-most teacher has been given charge in the absence of a Principal.” The said letter/order has been impugned in al