IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 25TH MARCH 2009 / 4TH CHAITHRA 1931 WA.No. 160 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.12503/2007 Dated 18/12/2008 .................... APPELLANT(S): RESPONDENTS 1 TO 3 -------------------------------- 1. THE MALABAR MAR THOMA SYRIAN CHRISTIAN EVANGELISTIC ASSOCIATION, THIRUVALLA, REPRESENTED BY ITS GENERAL SECRETARY. 2. THE MANAGER, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. 3. DR. ALEYAMMA SAJI VARGHESE, SELECTION GRADE LECTURER, DEPARTMENT OF ZOOLOGY, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. BY ADV. SRI.KURIAN GEORGE KANNANTHANAM, SENIOR ADVOCATE SRI.TONY GEORGE KANNANTHANAM RESPONDENT(S): PETITIONER AND RESPONDENT NO.4 -------------------------------------------- 1. LALLY MATHEW, PRINCIPAL, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. 2. THE MAHATHMA GANDHI UNIVERSITY, PRIYADARSHINI HILLS, KOTTAYAM, REPRESENTED BY ITS REGISTRAR BY ADV.K.B.GANGESH FOR R1 SRI.T.A.SHAJI, SC FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12/03/2009, THE COURT ON 25/03/2009 DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 160 OF 2009 ----------------------------------------- Dated 25th March, 2009. JUDGMENT Balakrishnan Nair, J. The respondents 1 to 3 in W.P.(C) No.12503/2007 are the appellants. The respondents are respectively, the writ petitioner and respondent No.4 in the said writ petition. The point that arises for decision in this appeal is whether the agreement executed between an appointee to the post of Principal in a Private College affiliated to the M.G. University and the management has the efficacy to curtail the period of appointment of that incumbent. 2. The brief facts of the case are the following: Mar Thoma College for Women, Perumbavoor is a Private College affiliated to the M.G. University. The educational agency of that College has entered into an agreement with the Government for direct payment of salary to the teaching and non-teaching staff of that College by the Government. A vacancy in the post of Principal arose in the College on 31.3.2003, as a result of the WA 160/2009 2 retirement of the then Principal. Though, the 1st respondent/writ petitioner was the senior-most qualified person to be promoted as Principal, Smt.Mariam Kuruvila Joseph, who was junior to her, was promoted to that post. The 1st respondent challenged the said appointment before the University Appellate Tribunal. The Tribunal, by judgment dated 20.9.2004 in Appeal No.10/2003 set aside the promotion of the said Smt. Mariam Kuruvila Joseph and directed the Manager to promote the 1st respondent as the Principal of the College. The judgment of the University Appellate Tribunal was challenged by the 2nd appellant Manager in W.P.(C) No.30646/2004 and this Court stayed the judgment of the Tribunal. The appointment of Smt.Mariam Kuruvila Joseph was for a period of two years and therefore, she stepped down from the post of Principal on 31.3.2005. The Manager proceeded to make a fresh selection to the post of Principal. The 1st respondent was also asked to apply for the post. In reply, she made a written representation, stating that by virtue of the judgment of the University Appellate Tribunal, she was entitled to be promoted as Principal. Ext.P1 dated 16.3.2005 is the said representation made by her. Thereafter, a compromise was arrived at between the 1st respondent and the management and the management agreed to promote her as Principal, on condition that she will not insist for promotion to that post with effect from WA 160/2009 3 31.3.2003. Accordingly, the 1st respondent was put in charge of the post of Principal on 1.4.2005. On 6.4.2005 she was offered regular appointment to the post of Principal by the Manager. At that time, she was required to sign an agreement, stating that her tenure as Principal would be for a period of one year from 6.4.2005. According to the 1st respondent, she was told that the agreement was only a precautionary measure and the same would never be implemented. Since she had no other option, in order to continue in the post of Principal in which she had been acting since 1.4.2005, she was compelled to sign the said agreement. True copy of the agreement dated 5.4.2005 is Ext.P2. The above said appointment order for one year was forwarded to the University for approval. Thereupon, the University issued Ext.P3 communication dated 17.5.2005 to the Manager, seeking clarification why the 1st respondent is appointed only for a period of one year, as her superannuation is only in the year 2014. The University also wanted to know the reason for restricting her period of appointment and whether she has relinquished her claim for appointment after 5.4.2006. Thereupon, the Manager issued Ext.P4 appointment order dated 5.4.2005, appointing the 1st respondent as Principal without any time limit. The 1st respondent submits, as a condition for issuing Ext.P4, she was compelled to sign Ext.P5 agreement dated 30.7.2005, agreeing to restrict her term of WA 160/2009 4 appointment as two years. Thereafter, the Manager forwarded Ext.P4 appointment order to the University and her appointment was approved by Ext.P6 order of the University dated 2.11.2005. 3. While so, on 12.3.2007 the 1st respondent was issued with Ext.P7 communication by the Manager, informing her that a Review Committee as provided in Ext.P5 agreement would be visiting the College to assess her performance and to submit a report. Thereupon, the 1st respondent submitted Ext.P8 reply, stating that she was compelled to sign Ext.P5 agreement as a condition precedent for appointing her as Principal and since the said agreement has no legal validity, she was withdrawing from that. Later, a Committee of three members visited the College on 22.3.2007. The Committee met the staff, some Governing Council members, the representatives of the P.T.A and all the Students' Associations. It appears, the Committee submitted a report. Soon thereafter, the Managing Committee of the educational agency met on 27.3.2007 and according to the first respondent, there was no decision to change the Principal. While so, the Manager issued Exts.P9 and P10 communications. By Ext.P9, the 1st respondent was told that the Review Committee did not recommend her continuance as Principal beyond the term of her appointment. The said communication further stated that her appointment as Principal with effect WA 160/2009 5 from 6.4.2005 itself was illegal, as it was made when the matter was pending before the High Court. Further, it was pointed out that by virtue of Ext.P5 agreement, her term of appointment automatically terminates on 5.4.2007. So, she was told by Ext.P9 dated 4.4.2007 that she cannot continue beyond 5.4.2007 as Principal. By Ext.P10 dated 4.4.2007 the 1st respondent was directed to hand over charge to Dr.Aleyamma Saji Varghese, as she has been appointed as the Principal of the College with effect from 5.4.2007. Feeling aggrieved by Exts.P9 and P10 communications of the Manager, the Writ Petition was filed, challenging them and also praying for a direction to the educational agency and the Manager to permit her to continue as Principal till her retirement. A declaration was also sought that Ext.P5 agreement is void ab initio and therefore, unenforceable. 4. According to the 1st respondent, Ext.P5 was executed by her under threat and coercion, at the time of her appointment. Before the agreement was to take effect, she had withdrawn from that by Ext.P8 letter. Therefore, even assuming Ext.P5 agreement has any legal validity, the same will not bind her, as she had withdrawn from that agreement. So, she prayed for grant of the reliefs sought in the Writ Petition. 5. The respondents 1 to 3 in the Writ Petition, who are the appellants WA 160/2009 6 herein, contended that on the basis of Ext.P5 agreement, the 1st respondent was appointed only for a period of two years. Since she had voluntarily executed an agreement, enjoyed the benefit of appointment as Principal and completed the agreed term, she was estopped from disputing the validity of the agreement or any action taken by the management, in terms of that agreement. They also contended that an agreement cannot be challenged in a Writ Petition under Article 226 of the Constitution of India. 6. The learned Single Judge, after hearing both sides, allowed the Writ Petition. The learned Judge declined to accept the plea of estoppel. It was held, inter alia, that there cannot be any estoppel against the Statute. It was further held that by virtue of the provisions of the M.G. University Act, the 1st respondent was entitled to continue till she reaches the age of superannuation. Challenging the decision of the learned Single Judge, this Writ Appeal is filed. 7. In the appeal memorandum, the grounds taken are the following: (1) The judgment under appeal is against the judgment of the learned Single Judge dated 5.12.2008 in W.P.(C) Nos. 30646 and 32113/2004, a copy of which is produced as Annexure-I along with the appeal memorandum. (2) Ext.P5 agreement and Ext.P4 order of appointment were executed and issued on 30.7.2005. The date shown in Ext.P4 appointment order is not the WA 160/2009 7 date of issuance of that order. The finding of the learned Judge to the contrary is untenable. (3) Making the appointment for a term is not illegal. There is no express prohibition against that in law. (4) The agreement has the approval of the educational agency, as the Manager represents the educational agency. On the above grounds, the appellants sought reversal of the judgment of the learned Single Judge. 8. We heard the learned senior counsel Mr.Kurian George Kannanthanam for the appellants, Mr.K.B.Gangesh, learned counsel for the 1st respondent and Mr.T.A.Shaji, learned standing counsel for the 2nd respondent. They reiterated their respective contentions mentioned above. 9. Before referring to the rival contentions, we will first refer to the relevant provisions of the M.G. University Act and the Statutes framed thereunder. Section 59 of the Mahatma Gandhi University Act, 1985 (hereinafter referred to as “the Act”) deals with the appointment of private college teachers, including the Principal. The said Section reads as follows: “59. Appointment of teachers in private colleges:-- (1) Appointments to the posts eligible to receive salary from the Government shall be made only against posts sanctioned by the Government or by such officers as may be authorized by the Government. (1A) Appointments to the lowest grade of teacher in each department of a private college shall be made by the educational agency by direct recruitment on the basis of merit. WA 160/2009 8 (2) Appointments of principals shall be made by the educational agency by promotion from among the teachers of the college or of all the colleges, as the case may be, or by direct recruitment. (3) Where the appointment of principal is made by promotion, the educational agency shall make the appointment on the basis of seniority-cum-fitness. (4) Appointments to the posts, other than those referred to in sub-sections (1A) and (2), shall be made by the educational agency by promotion from among the teachers of the college or of all the colleges, as the case may be, on the basis of seniority-cum-fitness, or if none among them is fit for promotion, by direct recruitment. (5) For making appointment under this section by direct recruitment, the post shall be advertised in such manner as may be prescribed by the Statutes. (6) The educational agency shall not abolish a course of study in a private college without the prior approval of the University. (7) Every appointment under this section shall be made by a written order of the Manager in such form as may be prescribed by Statutes communicated to the person to be appointed, with copy to the University. (8) Every appointment under this section shall be reported to the University for approval. (9) Any person aggrieved by any appointment under this section may appeal to the Appellate Tribunal.” (Emphasis supplied) Going by the above provisions, appointment to the post of Principal shall WA 160/2009 9 be made by promotion from among the teachers of the College or by direct recruitment. If it is by promotion, the senior-most hand shall be appointed, provided he is not found unfit. Section 62 of the Act deals with the conditions of service of teachers of private colleges. The relevant portion of the said Section reads as follows: “62. Conditions of service of teachers of Private Colleges:--(1) Notwithstanding anything contained in any law or in any contract or other document, the conditions of service of teachers of private colleges, whether appointed before or after the commencement of this Act including conditions relating to pay, pension, provident fund, gratuity, insurance and age of retirement, shall be such as may be prescribed by the Statutes.” (Emphasis supplied) The above non-obstante clause protects the service conditions of teachers notwithstanding anything contained in any contract or agreement. The definition of teacher in Section 2(29) of the Act includes Principal also. So, an agreement like Ext.P5 is not efficacious to eclipse the rights of a teacher flowing from the Act and the Statutes framed thereunder. Statute 15 of Part B of Chapter 45 of the Mahatma Gandhi University Statutes, 1977 deals with the form governing appointment of teaching staff. The said Statute reads as follows: “15. Form of appointment Order: Every appointment to the teaching staff shall be made by a written order of the Manager in Form 6 and a copy of every such order shall be forwarded with a report thereon to the University for approval.” WA 160/2009 10 The order appointing the 1st respondent was issued in conformity with the above Statute. 10. In this case, it is not in dispute that the 1st respondent was the senior-most qualified teacher in the College. Exercising the rights of the minority under Article 30(1) of the Constitution of India, the management could have gone for a junior hand. But, on executing Ext.P2 agreement, the 1st respondent was appointed as Principal. As per the order issued pursuant to Ext.P2, the appointment was only for a period of one year. Since the University raised objection against the same, Ext.P4 appointment order was issued without any time limit. The same has been approved by the University also. Going by the provisions of the Act and the Statutes, the 1st respondent can continue till she attains the age of superannuation, that is, up to the year 2014. If her performance as the Principal of the College was not satisfactory, her probation could have been terminated. If she committed any misconduct, and if the same was proved in an enquiry, by way of punishment, she could have been reverted to the lower post or removed or dismissed from service. But, in this case, she has been asked to step down in terms of Ext.P5 agreement and another teacher has been appointed in her place. The management seeks to support its actions solely based on Ext.P5. So, the only point that arises for consideration is whether Ext.P5 will enable WA 160/2009 11 the Manager to act in the manner he has acted in this case. 11. The learned Single Judge took the view that the appointment as per Ext.P4 was made prior to the execution of Ext.P5 on 30.7.2005. Therefore, the said agreement cannot affect Ext.P4. It was also held that there cannot be any estoppel against the Statute. As per the provisions of the Act and the Statute, the 1st respondent can continue in service till she attains the age of superannuation. The learned senior counsel for the appellants submitted that the first finding of the learned Judge that the appointment order was issued earlier is not correct. The issuance of Ext.P4 and the execution of Ext.P5 were simultaneous and on the same day, that is, 30.7.2005. Going by the materials on record, including the statement of the 1st respondent in Ext.P8 at para 3, we are of the view that Ext.P5 was executed and Ext.P4 was issued simultaneously. But, the same does not improve the case of the management. If the appointment was earlier and the execution of the agreement was later, it could be contended that the agreement was executed out of free will of the 1st respondent without any coercion. But, when the appointment and the execution of the agreement took place simultaneously, it is evident that the 1st respondent was appointed, as she agreed to the terms contained in Ext.P5 and executed the said agreement. An appointee to a higher post would never like to have his WA 160/2009 12 or her term cut short. Normally, he or she would like to continue in that post till the age of superannuation. If he or she agrees to step down after two years, it can only be because of the insistence of the management as a condition for making the appointment of the incumbent. If the 1st respondent did not agree to the terms of Ext.P5, she would not have been appointed. She had no bargaining power. In other words, she was compelled to sign at the dotted line. So, it was an agreement executed under coercion. Coercion need not be physical coercion. The prospect of denial of appointment can be an effective form of coercion to compel the incumbent to accept the terms in the agreement. So, the fact that the appointment order and the agreement were issued and executed simultaneously, would only weaken the case of the management. A contract is said to be entered into by undue influence, where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. This view taken by us concerning the above contract is supported by the decision of the Apex Court in Central Inland Water Transport Corporation Limited v. Brojo Nath Ganguly [(1986)3 SCC 156]. While considering the validity of a provision in the service WA 160/2009 13 rules, which enabled the management to terminate the services of an employee on giving three months' notice, the Apex Court held that the said clause is not enforceable, as the same is arbitrary and unjust. In the context of examining the validity of the above provision, the Apex Court held that such terms in the contract of employment are unconscionable and agreed to by the employee under undue influence and therefore, unenforceable. The terms of Ext.P5 also stand on the same footing. In Delhi Transport Corporation v. D.T.C. Mazdoor Congress [1991 Supp (1) SCC 600], dealing with similar conditions in the Service Regulations of Delhi Transport Corporation, enabling the Corporation to terminate the services of a permanent employee on completion of a specific period of appointment, after giving one month's notice, the Apex Court interfered and held as follows: “281. The trinity of the Constitution assure to every citizen social and economic justice, equality of status and of opportunity with dignity of the person. The State is to strive to minimise the inequality in income and eliminate inequality in status between individuals or groups of people. The State has intervened with the freedom of contract and interposed by making statutory law like Rent Acts, Debt Relief Acts, Tenancy Acts, Social Welfare and Industrial Laws and Statutory Rules prescribing conditions of service and a host of other laws. All these Acts and Rules are made to further the social solidarity and as a step towards establishing an egalitarian socialist order. This Court, as a court of constitutional conscience enjoined WA 160/2009 14 and is jealously to project and uphold new values in establishing the egalitarian social order. As a court of constitutional functionary exercising equity jurisdiction, this Court would relieve the weaker parties from unconstitutional contractual obligations, unjust, unfair, oppressive and unconscionable rules or conditions when the citizen is really unable to meet on equal terms with the State. It is to find whether the citizen, when entering into contracts of service, was in distress need or compelling circumstances to enter into contract on dotted lines or whether the citizen was in a position of either to 'take it or leave it' and if it finds to be so, this Court would not shirk to avoid the contract by appropriate declaration. Therefore, though certainty is an important value in normal commercial contract law, it is not an absolute and immutable one but is subject to change in the changing social conditions.” xxxxx xxxxx xxxxx xxxxx “292. From this perspective, it must be held that in the absence of specific head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest invent new public policy and declare such practice or rules that are derogatory to the Constitution to be opposed to public policy. The rules which stem from the public policy must of necessity be laid to further the progress of the society in particular when social change is to bring about an egalitarian social order through rule of law. In deciding a case which may not be covered by authority courts have before them the beacon light of the trinity of the Constitution and the play of legal light and shade must lead on the path of justice, social, economic and political. Lacking precedent, the court can always be guided by that light and the guidance thus shed by the trinity of our Constitution.” 12. It is not disputed before us that the Manager of a Private College affiliated to a University, where the salary of the staff is paid by the WA 160/2009 15 Government, is amenable to the writ jurisdiction of this Court. He is a statutory functionary under the Act. So, the agreement entered into between the Manager and a teacher, who was coerced to enter into that contract for giving appointment as Principal, can be held by this Court under Article 226 of the Constitution of India, to be unenforceable. Declaratory reliefs can be granted against ultra vires actions of the statutory authorities. The action of the Manager in getting executed Ext.P5 agreement is plainly ultra vires of his powers under the Act, if the terms thereof are arbitrary and unjust. Further, Section 62 of the Act, which we have already quoted above, states that the conditions of service of teaching staff of Private Colleges shall be those prescribed by the Statutes, notwithstanding anything contained in any contract or agreement to the contrary. In view of the above non-obstante clause, the terms of the agreement Ext.P5 cannot affect the conditions of service of a teacher. In this case, the 1st respondent has been appointed as Principal as per Ext.P4, without any time limit. The same has been approved by the University also. By virtue of Statute 42 of Part B of Chapter 45 of the Mahatma Gandhi University Statutes, 1997, the provisions of Part I of the Kerala Service Rules are applicable to the 1st respondent and other teachers of Private Colleges. Rule 60 of Part I, K.S.R deals with the age of superannuation of Government servants. So, the 1st WA 160/2009 16 respondent could have continued in service up to the age of 55 years, as provided in Rule 60, Part I of the K.S.R. The services of a promotee in the post of Principal can be terminated only as provided under the provisions of the Statute. In view of Section 62 of the Act, Ext.P5 agreement cannot be pressed into service. The principle of estoppel is not efficacious to get over a statutory provision. The learned senior counsel for the appellants submitted that this is the practice followed in many colleges. If the incumbent agrees to the terms of the agreement and steps down without challenging it, then the concerned management can proceed with fresh appointment. But, in this case, the 1st respondent has not agreed to step down and she is asserting her right flowing from Ext.P4. She has been issued with an appointment order in Form 6, as provided under the Statutes by the Manager without any time limit and the said appointment has been approved by the University, as provided under Section 59 of the Act. In view of the above