IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 12503 of 2007(L) -------------------------- PETITIONER(S): --------------- LALLY MATHEW, PRINCIPAL, MAR THOMA COLLEGE FOR WOMEN,PERUMBAVOOR. BY ADV. SRI.K.B.GANGESH SRI.ANIL GEORGE RESPONDENT(S): --------------- 1. THE MALABAR MAR THOMA SYRIAN CHRISTIAN EVAGELISTIC ASSOCIATION, THIRUVALLA, REP. BY ITS GENERAL SECRETARY. 2. THE MANAGER, MAR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. 3. DR.ALEYAMMA SAJI VARGHESE, SELECTION GRADE LECTURER, DEPARTMENT OF ZOOLOGY, AR THOMA COLLEGE FOR WOMEN, PERUMBAVOOR. 4. THE MAHATMA GANDHI UNIVERSITY, PRIYADARSINI HILLS, KOTTAYAM, REP. BY ITS REGISTRAR. ADV. SRI.TONY GEORGE KANNANTHANAM FOR R3 SRI. T.A. SHAJI, SC, M.G.UNIVERSITY FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.12503/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT ON 16/03/2005. P2 : COPY OF THE AGREEMENT DATED 05/04/2005 SIGNED BY THE PETITIONER. P3 : COPY OF THE COMMUNICATION FROM THE M.G.UNIVERSITY DATED 17/05/2005. P4 : COPY OF the APPOINTMENT ORDER ISSUED TO THE PETITIONER DATED 05/04/2005. P5 : COPY OF the AGREEMENT DATED 30/07/2005 SIGNED BY THE PETITIONER. P6 : COPY OF THE ORDER OF APPROVAL DATED 02/11/2005 OF THE PETITIONER'S APPOINTMENT AS PRINCIPAL. P7 : COPY OF THE COMMUNICATION FROM THE 2ND RESPONDENT DATED 12/03/2007. P8 : COPY OF THE REPLY DATED 16/03/2007 FROM THE PETITIONER TOT HE 2ND RESPONDENT PRINCIPAL. P9 : COPY OF THE ORDER OF THE MANAGER DATED 04/04/2007. P10 : COPY OF the COMMUNICATION REQUIRING THE PETITIONER TO HANDOVER CHARGE TO THE 3RD RESPONDENT. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.12503 of 2007 --------------------------------- Dated, this the 18th day of December, 2008 J U D G M E N T The controversy in this writ petition is in relation to the appointment to the post of Principal of Mar Thoma College for Women, Perumbavoor. The petitioner is presently working as a Selection Grade Lecturer in the said college. The 1st respondent is the Educational Agency, the 2nd respondent is the Manager, the 3rd respondent is the person who is now holding charge as the Principal and the 4th respondent is the University. 2. The facts of the case are that on 31/03/2003, there arose the vacancy of Principal in the College. Though the petitioner was the senior most Lecturer eligible for promotion, her junior was appointed for a period of 2 years. This was challenged by the petitioner before the University Appellate Tribunal in Appeal No.10/2003. The appeal was allowed. The order of the Tribunal was challenged before this Court both by the Manager and also the then Principal in WP(C) Nos.30646/2004 and 32113/2004 respectively. This Court granted stay of the order passed by the WP(C) No.12503/2007 -2- Tribunal. In the meanwhile, the junior so appointed continued in the Office and on expiry of the two years period, stepped down from the Office on 31/03/2005. 3. Thereupon, the Manager and the petitioner executed Ext.P2 agreement dated 05/04/2005 agreeing that the petitioner will be appointed as Principal with a tenure of one year and subject to the other conditions mentioned therein. Accordingly, the petitioner was promoted to the post of Principal for a period of one year with effect from 01/04/2005. Approval of the University was sought for and by Ext.P3 order dated 17/05/2005, the University returned the proposal stating that the petitioner had not relinquished her claim to continue in Office beyond 05/04/2006. 4. Thereupon, the Manager issued Ext.P4 dated 05/04/2005 appointing the petitioner as Principal of the College without specifying any period of appointment. This order is drawn in Form-6 specified in the statute framed by the 4th respondent University. The appointment was approved by the University as per Ext.P6 order dated 02/11/2005. In the meantime, Ext.P5 agreement dated 30/07/2005 was executed by the Manager and the petitioner, fixing the petitioner’s tenure as Principal for a period of WP(C) No.12503/2007 -3- two years. Clauses 1 & 2 of the said agreement, being relevant, are extracted below for reference : “1. The appointment of the Principal shall be only in accordance with the regulations and Articles of Association or other rules of the Mar Thomas College for Women, Perumbavoor and resolution of the Mar Thoma Evangelistic Association as modified from time to time and accordingly the term of the Principal's appointment shall be for the period of two years commencing from the 6th day of April, 2005 and terminating automatically on the 5th of April, 2007. 2. There shall be a review committee to be constituted by the Mar Thoma Evangelistic Association by the third term of the second year of Office of the Principal and the review committee has to submit a report on the functioning of the college under the stewardship of the Principal and the Mar Thoma Evangelistic Association may decide to extend the tenure of appointment of the Principal or decide to nominate a new Principal after her tenure based on the report of the review committee.” 5. The petitioner continued in Office and on 12/03/2007, the Manager issued Ext.P7 informing the petitioner that her continuance depends upon the terms of Ext.P5 agreement and that a Review Committee has been appointed for making a report in terms of Clause (2) of Ext.P5 agreement. On receipt of Ext.P7, the petitioner submitted Ext.P8 reply, in which, she asserted her right to continue in office until superannuation, and contended that Ext.P5 WP(C) No.12503/2007 -4- agreement was executed under coercion and that the same was being withdrawn. 6. The Manager, thereafter, issued Ext.P9 informing the petitioner that the Review Committee appointed by him did not recommend the petitioner’s continuance in Office beyond the period specified in the agreement. The relevant portion of Ext.P9 reads as follows: “As per the provisions of the agreement, the term of appointment as Principal automatically terminates on 05/04/2007. There is nothing in the University Act or the Statutes, which prohibits appointment for any fixed period. The Review Committee, appointed for evaluating your performance, also did not recommend your continuance in office as the Principal beyond 05/04/2007. In the circumstances, the undersigned hereby would like to inform you that your term as Principal expires on 05/04/2007 and you cannot continue as Principal thereafter.” Accordingly, the 3rd respondent was appointed as the Principal in- charge and at that stage, this writ petition was filed with the following prayers. “i. a writ of certiorari or any other appropriate writ, order or direction quashing Exts.P9 & P10 orders passed by the 2nd respondent. ii. a writ of mandamus or any other appropriate writ, order or direction commanding respondents 1 & 2 to permit the petitioner WP(C) No.12503/2007 -5- to continue as the Principal of Mar Thoma College for Women, Perumbavoor till her retirement. iii. declare that Ext.P5 agreement is void ab initio and is therefore unenforceable in law.” While admitting this writ petition, this Court recorded the submission on behalf of the respondents that no regular appointment will be made till the writ petition is heard. 7. The learned counsel for the petitioner relies on the provisions of the Mahatma Gandhi University Act, 1985 (hereinafter referred to as the Act for short) and contends that the appointment of the Principal of an aided College is governed by the provisions in Section 59 of the Act and that the conditions of service are governed by the Statutes framed under the Act. It is stated that neither the Act nor the Statutes provide for an agreement in the nature of Ext.P5 and therefore dehors the agreement, the petitioner is entitled to continue in Office until she reaches the age of superannuation. The learned counsel also relied on the judgments of the Court in Lakshmikutty Amma v. Vijayalakshmikutty (1992(2) KLT 341) and Rajasree v. Secretary to Government (2000(2) KLT 248). 8. The learned counsel also placed reliance on the provisions of Statutes 15 & 16 of Chapter 45 B of the University WP(C) No.12503/2007 -6- Statutes, and contended that there is no provision in the Statutes providing for relinquishment by teaching staff unlike the provisions in Chapter 45C, providing for relinquishment by non-teaching staff. It is also stated that once the University has granted approval to her appointment as Principal, the said approval cannot be curtailed by a non-statutory and illegal agreement. 9. Yet another contention raised is that the appointment of the Principal is made by the Educational Agency, the 1st respondent. Relying on Section 59(2) of the Act, it is contended that, even if an order of removal is to be validly passed, the same can be done only by the Educational Agency. It was contended that in this case, Ext.P7 has been issued by the Manager, who is incompetent to issue such an order. Referring to the pleadings in Ground H of the writ petition, the learned counsel contended that there is no decision of the Educational Agency limiting the period of the Principal to two years, and that Ext.P5 has been got executed by the Manager without any authorization from the Educational Agency. It was also pointed out that the aforesaid averments are not controverted. 10. The 4th respondent University submits that once the appointment of Principal has been approved by it in terms of the WP(C) No.12503/2007 -7- provisions contained in Section 59(8) of the Act, the appointee is entitled to continue in Office till superannuation or otherwise legally removed from Office. The University also submits that there cannot be any agreement between the Manager and the appointee, which is not recognized by the Act or the Statutes and that Ext.P5 cannot defeat the right of the petitioner to continue in Office pursuant to Ext.P4 order of appointment. 11. The contention raised on behalf of respondents 1 to 3 is mainly that on the basis of Ext.P5 agreement, the petitioner was appointed only for a period of two years. It is stated that that once the petitioner has voluntarily executed the agreement and enjoyed the benefit of appointment and completed the agreed term, the petitioner is estopped from disputing the validity of the agreement, or any action taken by the Manager in terms of Ext.P5 agreement. It is also contended that the agreement cannot be challenged in a writ petition under Article 226 of the Constitution of India. 12. First, I shall deal with the plea of estoppel raised by the learned counsel for the respondents. The plea of estoppel, whatever be the worth of it, is raised relying on Ext.P4 appointment order and Ext.P5 agreement. The learned counsel for respondents 1 WP(C) No.12503/2007 -8- to 3 argued that the appointment by Ext.P4 and execution of Ext.P5 agreement were simultaneous, and that but for the execution of the agreement, petitioner would not have been appointed. As seen from Exts.P4 and P5, while the appointment order is dated 05/04/2005, the agreement is dated 30/07/2005. Nothing has been placed on record to indicate that dates mentioned in Exts.P4 & P5 are wrong. In any case it is not open to the respondents to raise such a plea. In view of this, I cannot accept the plea of the respondents that Exts.P4 and P5 were simultaneously executed and that but for the execution of the agreement, the appointment would not have been made. If that be so, the plea of estoppel cannot be accepted. Further, the petitioner's contention is that in the absence of a statutory provision, by an agreement the term of a Principal cannot be limited. This plea is supported by the University also. Since the contention is that the agreement is against statutory provisions, and as there is no estoppel against statute, the plea of estoppel raised by the respondents has no substance. As a necessary consequence, the plea of estoppel sought to be set up by the learned counsel for respondents 1 to 3 has to fail. 13. In so far as the entitlement of an appointee to continue WP(C) No.12503/2007 -9- as the Principal of an aided College is concerned, that is governed by the provisions contained in the Act and the Statutes. Section 59 of the Act deals with appointment of a teacher and going by the definition as contained in Section 2(29) of the Act, teacher includes the Principal. Under Section 59(3), the Principal is to be appointed by promotion on the basis of seniority cum fitness. Although the College concerned may be a minority educational institution, since the issue raised in this writ petition is regarding the entitlement of the petitioner to continue in Office as Principal, the minority status of the College is irrelevant in so far as the controversy in this writ petition is concerned. 14. Sub section (7) of Section 59 provides that every appointment shall be made by the Manager by a written order in such Form as may be prescribed by the Statutes and communicated to the person to be appointed with copy to the University. It is in compliance with this provision that Ext.P4 has been issued in Form - 6 as prescribed in Chapter 45 of the University Statutes. Sub Section (8) also requires that every appointment shall be reported to the University for approval. It is in pursuance to this sub section, as provided in Statute 16 of Chapter 45B, that approval has been WP(C) No.12503/2007 -10- obtained by Ext.P6. Neither the appointment or its approval is for a limited tenure. The respondents 1 & 2 do not have a case that they are not bound by the provisions contained in the University Act or the Statutes. Nowhere in the Act or Statute, is there any provision entitling the Manager of a College to make appointment for a limited tenure or obtain an agreement in the nature of Ext.P5, limiting the tenure of a person appointed to the post of Principal. This point gains significance in view of the fact that when the initial appointment of the petitioner for a period of one year was forwarded to the University for approval, the University by Ext.P3 returned the proposal refusing to approve such appointment. It was in that context, that the Manager issued Ext.P4 without limiting the tenure of the petitioner, while at the same time, he subsequently obtained Ext.P5 agreement solely with the intention to limit the tenure. Going by the stand of the University, had they known about Ext.P5, they would not have approved the appointment. In my view, once the petitioner has been appointed to the post of Principal of the College and the same has been approved by the University, unconditionally, as has been done in this case by Ext.P6, the petitioner is entitled to continue in Office until she attains the age of WP(C) No.12503/2007 -11- superannuation or as otherwise removed in accordance with the statutory provisions contained in the Act or Statutes framed thereunder. 15. This contention of the learned counsel for the petitioner is fully fortified by the decision of the Division Bench of this Court in Lakshmikutty Amma v. Vijayalakshmikutty (1992(2) KLT 341). In the context of Rule 51A of Chapter XIV-A K.E.R., this Court held that in the absence of a statutory provision providing for relinquishment of the right, even if an agreement has been voluntarily executed by the teacher, that cannot result in forfeiture of his statutory right. It has been held that if the statute gives the power to do a certain thing in a certain way, it must be done in that way or not at all and that other methods of performance are necessarily forbidden. For arriving at this conclusion, the Division Bench made reference to the decisions in Taylor v. Taylor, {(1875) 1 Ch.D. 426 quoted in State of Gujarat v. Shantilal, (AIR 1969 SC 634)} and Kashmir University v. Mohd. Yasin (AIR 1974 SC 238). Further the Division Bench made reference to Ramachandran v. Govind (AIR 1975 SC 915), where the question relating to the surrender of right by a tenant under the Bombay Tenancy and Agricultural Lands Act, and the Rules made WP(C) No.12503/2007 -12- thereunder was considered. Yet another Division Bench judgment that was relied on by the learned counsel for the petitioner is Rajasree v. Secretary to Government (2000(2) KLT 248), where this Court refused to act upon a letter of relinquishment obtained by the Manager from a Claimant under Rule 51A of Chapter XIV-A K.E.R., holding that in the absence of statutory provisions, such relinquishment is impermissible. 16. Therefore, the irresistible conclusion that is possible is that in the absence of any statutory provision for limited tenure appointment or enabling the Manager to obtain an agreement in the nature of Ext.P5, there is no justification for restricting the statutory right of the Principal of an aided college to continue in the Office. 17. The technical plea that was raised by the learned counsel for the respondents 1 to 3 was that an agreement in the nature of Ext.P5 cannot be challenged in a writ petition. From the contentions that have been dealt with herein above, it is obvious that this Court was not called upon to decide any disputed question of fact and all that it was called upon to examine is the permissibility of getting Ext.P5 agreement executed, in the absence of any statutory provisions providing for the same. Ordinarily, an agreement WP(C) No.12503/2007 -13- between private parties cannot be subjected to challenge in a proceedings under Article 226 of the Constitution of India. But this is an agreement which was got executed by the Manager appointed under the Act, in violation of the provisions contained in the Act and Statutes, under which he has to discharge his duties. In my view, such an agreement can be subjected to judicial review in a proceedings under Article 226, especially when the issue does not involve resolution of any disputed question of fact. 18. With reference to the contention raised relying on Section 59(2) and (3) of the Act and the pleadings in Ground H, it should be noticed that under Section 59(2) and (3), appointment is to be made by the Educational Agency. It is the specific contention of the petitioner that Ext.P5 and the other impugned proceedings are the unilateral acts of the Manager and not that of the Educational Agency. This averment and the contention is not controverted in any manner and therefore, it must be held that the impugned action of the Manager does not have the sanction of the Educational Agency. For this reason also, the petitioner is entitled to succeed. 19. For the aforesaid reasons, I am satisfied that the petitioner is entitled to succeed. Accordingly, the writ petition will WP(C) No.12503/2007 -14- stand allowed, and Exts.P5 and P9 will stand quashed. There will be a direction to the respondents 1 & 2 to reinstate the petitioner within four weeks of production of a copy of this judgment and permit her to continue as Principal of Mar Thoma College for Women, Perumbavoor till her retirement or otherwise removed in accordance with law. However, it is made clear that the petitioner will not be entitled to any monetary benefit for the period, she was kept out of the Office of Principal. The writ petition is allowed as above. (ANTONY DOMINIC, JUDGE) jg