Himachal Pradesh High Court
Akash Singh vs Of on 11 December, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
CWP No. 5227 of 2014.
Date of decision: 11.12.2015.
Akash Singh .....Petitioner.
Versus
of
State of Himachal Pradesh and others .....Respondent s.
Coram
rt
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No
For the Petitioner : Mr.Sanjeev Bhushan, Senior
Advocate with Ms.Abhilasha
Kaundal, Advocate.
For the Respondents : Mr.Virender Kumar Verma,
Additional Advocate General with
Ms.Parul Negi and Mr.Vikram
Thakur, Deputy Advocate
Generals.
Tarlok Singh Chauhan, Judge (Oral) .
This writ petition has been filed for the following substantive reliefs:-
"(i) That a writ in the nature of mandamus may be issued directing the respondents to immediately release grant in aid in favour of the petitioner with effect from October, 2007 by releasing all the arrears alongwith interest @ 9% p.a. in the interest of justice.
(ii) That further a writ in the nature of mandamus may be issued directing the respondents to keep paying grant in aid in favour of petitioner in future also."
2. The facts, in brief, as set out in the petition, are that the Parents Teacher Association (PTA) of GSSS, Amlela passed a Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 2 resolution on 03.09.2007 whereby it decided to fill up three posts in the school which had been lying vacant for a considerable long .
time. The posts were of lecturers in Commerce, English and a post of Language Teacher. The petitioner after being interviewed by a proper constituted Interview Committee and having competed with of 17 other persons came to be appointed on 05.10.2007. The petitioner at the time of appointment was well qualified as he had rt qualified B.A. with Hindi, M.A. Hindi, M.Phil in Hindi and that apart was having qualification of B.Ed. and as of now even passed the 'TET' examination.
3. The grievance of the petitioner is that eversince his appointment, the respondents have not released his grant-in-aid and they be directed to release the same alongwith 9% interest per annum.
4. The case set out by the respondents in their reply is that the appointment of the petitioner has not been made as per the norms prescribed in the Grant-in-Aid (Parents Teacher Association) Rules, 2006 (hereinafter referred to as 'Rules) and, therefore, the petition is not maintainable. It is further contended that if at all the petitioner is entitled to any remuneration, then it is the Parents Teacher Association of the concerned school, who is responsible for the payment of remuneration and not the respondents.
5. When the matter was taken up for hearing on 28.04.2015, it was noticed that the respondents had not given any ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 3 reasons or explanation as to why the appointment of the petitioner was not in accordance with the rules, especially, when the grant-
.
in-aid had been paid to the other appointees, who were appointed through the same selection process. The Director of the Elementary Education was directed to explain this position.
of
6. In compliance to the directions, the respondents filed an affidavit wherein it was averred that the concerned Parents rt Teacher Association did not display the vacancy position and venue/date of interview on the notice board of the concerned school as well as on the notice board of the Gram Panchayat concerned or through the press/advertisement and straightaway appointed the petitioner and, therefore, the appointment of the petitioner was not in accordance with the Rules.
7. Insofar as the payment of grant-in-aid to the other teachers is concerned, it has been stated that the interviews were conducted by the PTA for the posts of Lecturers Commerce and English and on the basis of such interviews, Rakesh Kumar was appointed as lecturer in Commerce, whereas, Pankaj Bala as Lecturer in English.
8. It is further averred that the interview conducted for the post of Language Teacher on 20.09.2007 was cancelled by the concerned PTA vide resolution No.207 dated 03.10.2007 with the observation that after the interview no candidate was found eligible for the post of Language Teacher. However, the services of the ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 4 petitioner were directed to be continued on the basis of the old pattern with the condition that he will not claim any grant-in-aid.
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9. What emerges from the aforesaid reply is that the respondents have adopted two contradictory stands. Insofar as the appointment of the Lecturers in Commerce and English is of concerned, the appointment is sought to be justified on the basis of their performance in interview. Whereas, the claim of the rt petitioner was sought to be defeated on the ground that there was no proper advertisement, though admittedly it was in the same selection process which culminated in the appointment of the petitioner and the two other Lecturers.
10. In order to justify this stand qua the petitioner, the respondents have now claimed that none of the candidates, who appeared in the interview for the post of Language Teacher including the petitioner was eligible. Be that as it may, in case the petitioner was not eligible, then what steps did the respondents take to fill up the post in question, was the precise query posed by this Court on 27.08.2015.
11. In compliance to the aforesaid order, the respondents on the affidavit of the Director of Elementary Education have candidly admitted that neither the PTA nor the respondents-
department till date have taken any steps to fill up the post in question. Relevant portion thereof reads thus:-
"No steps have been taken by the concerned PTA to fill-up the post in question through PTA basis properly and the respondent department has not filled up the post in ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 5 question by way of transfer or fresh appointment due to the reasons that as per resolution No.207 dated 03.10.2007 .
the petitioner is continuing on the basis of old pattern."
12. Once, this is the admitted position, then the wider issue which arises for consideration is as to whether the State as a model employer after having extracted service nearly one decade of from the petitioner can claim that he has not been regularly appointed. Further, can the State be permitted to argue that the rt petitioner in these days of growing inflation, ever increasing cost of living should remain content with the remuneration of `1000/-.
13. An identical issue came up for consideration before this Court in CWP No. 226 of 2010 in case titled Promila Devi versus State of H.P. and others, decided on 02.04.2015 and this Court held as under:-
"6. At this stage, a wider issue arises for consideration as to whether the State as a model employer after having extracted nearly a decade of service from the petitioner can claim that she had not been regularly appointed. Further, can the State be permitted to argue that petitioner even in these days of high cost of living should remain content with the remuneration of Rs.1000/- more particularly when admittedly the petitioner has already been paid the salary out of PTA fund with effect from April 2010 to March 2013.
7. A learned Division Bench of this Court in LPA No. 132 of 2014 titled Dr. Lok Pal vs. State of Himachal Pradesh and other decided on 18.12.2014 was seized of a similar matter where the appointment of the person was though on a consolidated salary of Rs.43000/- per month but after his appointment he was actually paid Rs.21000/- per month and the learned Division Bench held this to be exploitation ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 6 on the sheer strength of the unequal bargaining power and it was held as under:
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"7. This case reflects a sorry state of affairs where the respondents on the sheer strength of its bargaining power have taken advantage of their position and imposed wholly un-
equitable and unreasonable condition of employment on their prospective employees, who did not have any other choice but to accept the employment on the terms and conditions offered by the respondents. This action of the respondents is violative of Article 14 of the Constitution. Here it is apt to reproduce relevant observations of the Hon'ble Supreme Court in the of celebrated decision of Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156, which reads as under:-
rt "88. As seen above, apart from judicial decisions, the United States and the United Kingdom have statutorily recognized, at least in certain areas of the law of contracts, that there can be unreasonableness (or lack of fairness, if one prefers that phrase) in a contract or a clause in a contract where there is inequality of bargaining power between the parties although arising out of circumstances not within their control or as a result of situations not of their creation. Other legal systems also permit judicial review of a contractual transaction entered into in similar circumstances. For example, section 138(2) of the German Civil Code provides that a transaction is void "when a person"
exploits "the distressed situation, inexperience, lack of judgmental ability, or grave weakness of will of another to obtain the grant or promise of pecuniary advantages........which are obviously disproportionate to the performance given in return." The position according to the French law is very much the same.
89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth- century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample underfoot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to "uphold the Constitution and the laws".
The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art. 14. This principle is that, the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 7 visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply .
where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a of contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rt rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its, own facts and circumstances."
In terms of the aforesaid exposition of law, it is clear that this Court has the jurisdiction and power to strike or set aside the unfavourable term of contract of employment which purports to give effect to unreasonable bargain violating Article 14 of the Constitution.
8. The undertaking obtained from the appellant is so unfair and unreasonable that it shocks the conscious of this Court. It reflects the inequality of the bargaining power between the appellant and the respondents which emanates from the great disparity in the economic strength between the job seeker and job giver.
9. The appellant was compelled by circumstances to accept the offer made by the respondents, but then the mere acceptance of this offer would not give it a stamp of approval regarding its validity. It is an age old maxim that "necessity knows no law" and a person sometimes may have to succumb to pressure of the other party to bargain who is in stronger position. Although, it may not be strictly in place, but the Court cannot shut its eyes to this ground reality.
10. At this stage, it shall be apt to quote the following observations of the Hon'ble Supreme Court in Chairman and MD NTPC Ltd. Vs. Rashmi Construction Builders and Contractors (2004) 2 SCC 663:-
::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 8"28. Further, necessitas non habet legem is an age-old maxim which means necessity knows no law. A person may sometimes have to succumb to the pressure of the other party .
to the bargain who is in a stronger position."
11. Notably the respondents herein are none other than the functionaries of the State who are expected to function like a model employer. A model employer is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an of employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employees and take advantage of their helplessness and misery. The conduct of the respondents falls short rt of expectation of a model employer.
12. The Hon'ble Supreme Court in its decision in Bhupendra Nath Hazarika and another Vs. State of Assam and others, (2013) 2 SCC 516 has succinctly explained this position in the following terms:-
"61. Before parting with the case, we are compelled to reiterate the oft stated principle that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it. But in the present case, the State has atrophied the rules. Hence, the need for hammering the concept.
62. Almost a quarter century back, this Court in Balram Gupta V. Union of India 1987 Supp SCC 228 had observed thus:
(SCC p. 236, para 13)
"13.... As a model employer the Government must conduct itself with high probity and candour with its employees."
In State of Haryana V. Piara Singh (1992) 4 SCC 118 the Court had clearly stated: (SCC p. 134, para 21).
"21....The main concern of the court in such matters is to ensure the rule of law and to see that the Executive acts fairly and gives a fair deal to its employees consistent with the requirements of Articles 14 and 16."
63. In State of Karnataka V. Umadevi (3) (2006) 4 SCC 1 (SCC P. 18, para 6) the Constitution Bench, while discussing the role of State in recruitment procedure, stated that if rules have been made under Article 3089 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.
64. In Mehar Chand Polytechnic V. Anu Lamba (2006) 7 SCC 161 (SCC p. 166, para 16) the Court observed that public employment is a facet of right to equality envisaged under Article 16 of the Constitution of India and that the recruitment rules are framed with a view to give equal opportunity to al the ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 9 citizens of India entitled for being considered for recruitment in the vacant posts.
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65. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created of where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with rt their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with dignified fairness then only the concept of good governance can be concretised. We say no more."
8. The respondents would however still contend that it was the petitioner who herself had agreed to work without remuneration and/ or was satisfied with Rs.1000/-
remuneration as fixed by the PTA. Notably the same arguments were raised by the respondents in Dr. Lok Pal's case (supra), and the learned Division Bench observed as under:-
"13. The respondents would still contend that it was the petitioner himself, who had agreed to the terms and conditions of his employment by accepting '21,000/- per month as remuneration instead of `43,000/- per month. Though, we have already held this contention of the respondents to be unsustainable yet the question, arises as to whether it is open to the State to disobey the Constitutional mandate merely because a person tells the State that it may do so? Complete answer to this question is found in the following observations of the Hon'ble Supreme Court in Basheshur Nath Vs. Commissioner of Income Tax, AIR 1959 SC 149::-
"14. Such being the true intent and effect of Art. 14 the question arises, can a breach of the obligation imposed on the State be waived by any person? In the face of such an unequivocal admonition administered by the Constitution, which is the supreme law of the land, is it open to the State to disobey the constitutional mandate merely because a person tells the State that it may do so? If the Constitution asks the State as to why the State did not carry out its behest, will it be any answer for the State to make that "true, you directed me not to deny any person equality before the law, but this person said that I could do so, for he had no, objection to my doing it." I do not think the state will be in any ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 10 better position than the position in which Adam found himself when God asked him as to why he had eaten the forbidden fruit and the State's above answer will be .
as futile as was that of Adam who pleaded that the woman had tempted him and so he ate the forbidden fruit. It seems to us absolutely clear,' on the language of Art. 14 that it is a command issued by the Constitution to the State a matter of public policy with a view to implement its object of ensuring the equality of status and opportunity which every Welfare State, such as India, is by her Constitution expected to do and no person can, by any act or conduct, relieve the State of the solemn obligation imposed on it by the Constitution of Whatever breach of other fundamental right a person or a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right that is indirectly conferred on him by this constitutional rt mandate directed to the State."
32. This, in my opinion, is the true position and it cannot therefore be urged that it is open to a citizen to waive his fundamental rights conferred by Part III of the Constitution. The Supreme Court is the bulwark of the fundamental rights which have been for the first time enacted in the Constitution and it would be a sacrilege to whittle down those rights in the manner attempted to be done.
Therefore, once it is concluded by the aforesaid examination of law that it is not open to a citizen to waive off his fundamental right, then there is no gain saying that the appellant was in no manner estopped from filing the writ petition."
9. The matter can be looked from a different angle.
Indisputably the petitioner had been appointed and assigned the duties to teach the students and such duties have been continuously performed by her. Then can the respondents, who are model employers, be permitted to act with total lack of sensitivity and indulge in "Begar", which is specifically prohibited under Article 23 of the Constitution of India.
10. The State government is expected to function like a model employer, who is under an obligation to conduct itself with high probity and expected candour and the employer, who is duty bound to act as a model employer has social obligation to treat an employee in an appropriate manner so that an employee is not condemned to feel totally subservient to the situation. A model employer should not exploit its employee and take advantage of their helplessness and misery. In the present case the conduct ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 11 of the respondents falls short of expectation of a model employer.
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11. It is not the case of the respondents that petitioner has not discharging her duties diligently, honestly and faithfully. Therefore, in such circumstances by claiming grant in aid on regular basis the petitioner has not asked for the moon. Not only is the petitioner entitled to regular of grant in aid but having worked for nearly a decade, the petitioner can also not be denied her legitimate claim for regularization.
rt
12. A similar question came up for consideration before learned Division Bench of this Court in Pritam Singh versus State of Himachal Pradesh and others, CWP No.4098 of 2012 decided on 13.09.2012 and it is apt to reproduce Paras 2 to 4 of this judgment which reads thus:
"2. The admitted facts are that from 30th November, 1992 the petitioner was working as part time sweeper/water carrier at Govt. Senior Secondary School, Kalal, District Bilaspur. He was appointed by the Parents Teacher Association at Rs.200/- per month. In 2003 a certificate was issued by the Principal of the school that the petitioner has worked for more than 10 years. The salary of the petitioner in 2004 was increased from Rs.200/- to Rs.500/- . The petitioner had also applied for the post of water carrier but he was not selected.
3. We called for the record and we find that the selection of respondent No.4 cannot be said to be invalid. At the same time we cannot be oblivious to the fact that the petitioner has worked as part -time worker for more than 20 years. It may be true that he has worked on part time basis and was employed by the Parents Teacher Association but the fact remains that he has worked for 20 years. An employee who worked for 20 years has genuine expectation that over a period of time he would be regularized.
4. Without going into the merits of the case and without making this case a precedent, keeping in view the peculiar facts and circumstances of the case we direct that in case the work of sweeper or any other work of similar nature is available in the school then it is the petitioner alone who shall be offered appointment against the said post and such post shall not be given to any other person. The petition is disposed of accordingly. No costs."
14. Taking cue from the aforesaid judgment and bearing in mind the peculiar facts and circumstances of the case, more particularly, the fact that the petitioner has been working for ::: Downloaded on - 15/04/2017 19:28:48 :::HCHP 12 nearly a decade, this Court is of the considered view that the respondents be directed to release the grant-in-aid in favour of .
the petitioner from the date of his appointment. Ordered accordingly.
15. The aforesaid direction be complied with within a of period of three months, failing which the petitioner shall be entitled to interest @ 9% per annum from the date when the rt same was due till the date of payment. Accordingly, the petition is disposed of in the aforesaid terms leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.
December 11, 2015. (Tarlok Singh Chauhan), (krt) Judge.
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