Himachal Pradesh High Court
Kamlesh Kumari vs State Of Hp & Ors on 21 April, 2016
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 3592 of 2015 .
Date of decision: 21.4.2016.
____________________________________________________________ Kamlesh Kumari ...Petitioner Versus State of HP & Ors ...Respondents of Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?1Yes.
rt For the Petitioner: Ms.Abhilasha Kaundal,Advocate.
For the Respondents: Mr. Vikram Thakur and
Ms.Parul Negi, Deputy
Advocate General.
Tarlok Singh Chauhan J (Oral)
This writ petition has been filed with the following prayer.
"i) That an appropriate writ, order or directions may kindly be issued and the respondents may kindly be directed to release grant in aid in favour of petitioner from the date when grant in aid Rules were notified with all consequential benefits flowing thereafter to the petitioner with further directions to pay the entire arrears of such grant in aid along with an interest @ 12% pa in the interest of law and justice."
Whether the reporters of the local papers may be allowed to see the Judgment? Yes.
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 22. The petitioner's case in nut shell is that in the year 2002, she was appointed as a Language Teacher .
by the then Parent Teacher Association, which has now been replaced by the School Management Committee (hereinafter referred to as 'SMC'). Earlier to that, she had in 1985 qualified Prabhakar, thereafter in 1992 had of passed MA (Hindi) and thereafter in the year 1994 had qualified B.Ed. The precise grievance of the petitioner is rt that after coming into force the Grant-in-Aid Rules 2006, despite her being fully eligible and entitled for the grant, the respondents have illegally denied her the same. Not only this, the respondents instead of providing grant-in-
aid to the petitioner, on the basis of the recommendations of the School Management Committee, re-advertised the post, which constrained her to file CWP No.8853 of 2014. This court initially passed orders of status quo and eventually the petition was disposed of directing the respondents to take a decision with respect to continuance of the petitioner and such like teachers.
3. The petitioner claims herself to be working as a Language teacher and continuously teaching the students of classes 6th to 10th since June, 2002 and despite a passage of more than 13 years, is being paid a meager honorarium, only on the sheer strength of ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 3 unequal bargaining power and claims to have been exploited, compelling her to approach this court.
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4. The respondents have opposed claim of the petitioner by filing reply, wherein it is stated that the petitioner was engaged by the PTA committee of the school as against the post of Language teacher as a of measure of "stop-gap" arrangement out of the PTA fund.
She assumed her duties on 29.6.2002 and at that time, rt did not possess the qualification for the post of Language teacher, which in terms of R & P Rules prevalent at the time of her engagement, was Prabhakar (Honours in hindi) with Matric (Full) and LT training or JBT (Two years training) from recognized University/Institution. It is further averred that the petitioner was engaged much earlier to the promulgation of PTA Grant-in-Aid Rules, 2006 and she did not possess the requisite qualification for the post of Language Teacher at the time of her initial engagement.
I have heard the learned counsel for the parties and have gone through the records of the case.
5. The first and foremost question that arises for consideration is as to whether the appointment of the petitioner who has admittedly been continuously working since 29.6.2002, can be termed to be 'stop gap'.
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 46. The terms, "ad hoc", "stop-gap" and "fortuitous" are in frequent use in service jurisprudence.
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In the absence of definition of these terms in the rules, the court will have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters.
of
7. The three terms "ad hoc", "stop gap" and rt "fortuitous'"are in frequent use in service jurisprudence.
In the absence of definition of these terms in the rules in question we have to look to the dictionary meaning of the words and the meaning commonly assigned to them in service matters.
8. The meaning given to the expression 'fortuitous' in Strouds Judicial Dictionary is 'accident or fortuitous casualty'. This should obviously connote that if an appointment is made accidentally, because of a particular emergent situation and such appointment obviously would not continue for a fairly long period.
9. In Blacks Law dictionary, the expression 'fortuitous' means 'occurring by chance', 'a fortuitous event may be highly unfortunate'. It thus, indicates that it occurs only by chance or accident, which could not have been reasonably foreseen.
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 510. The expression 'ad hoc' in Blacks Law Dictionary, means 'something which is formed for a .
particular purpose'.
11. The expression 'stop-gap' as per Oxford Dictionary, means 'a temporary way of dealing with a of problem or satisfying a need'.
12. In Oxford Dictionary, the word 'ad hoc' means rt for a particular purpose; specially. In the same Dictionary, the word 'fortuitous' means happening by accident or chance rather than design.
13. In P. Ramanatha Aiyers Law Lexicon (2nd Edition) the word 'ad hoc' is described as: "For particular purpose. Made, established, acting or concerned with a particular (sic) and or purpose." The meaning of word fortuitous event is given as 'an event which happens by a cause which we cannot resist; one which is unforeseen and caused by superior force, which it is impossible to resist; a term synonymous with Act of God'.
14. The meaning to be assigned to these terms while interpreting provisions of a Service Rule will depend on the provisions of that Rule and the context in and the purpose for which the expressions are used. The meaning of any of these terms in the context of computation of ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 6 inter-se seniority of officers holding cadre post will depend on the facts and circumstances in which the .
appointment came to be made. For that purpose it will be necessary to look into the purpose for which the post was created and the nature of the appointment of the officer as stated in the appointment order. If the appointment of order itself indicates that the post is created to meet a particular temporary contingency and for a period rt specified in the order, then the appointment to such a post can be aptly described as 'ad hoc' or 'stop-gap'. If a post is created to meet a situation which has suddenly arisen on account of happening of some event of a temporary nature then the appointment of such a post can aptly be described as 'fortuitous' in nature. If an appointment is made to meet the contingency arising on account of delay in completing the process of regular recruitment to the post due to any reason and it is not possible to leave the post vacant till then, and to meet this contingency an appointment is made then it can appropriately be called as a 'stop-gap' arrangement and appointment in the post as 'ad hoc' appointment. It is not possible to lay down any straight-jacket formula nor give an exhaustive list of circumstances and situation in which such an appointment (ad hoc, fortuitous or stop-
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 7gap) can be made. As such, this discussion is not intended to enumerate the circumstances or situations in .
which appointments of officers can be said to come within the scope of any of these terms. It is only to indicate how the matter should be approached while dealing with the question of inter se seniority of officers of in the cadre. (Refer Rudra Kumar Sain & ors Vs. Union of India & ors (2008) 8 SCC 25.
rt
15. Once the petitioner had continued in the post for a fairly long period, then such appointment cannot be held to be 'stop gap' 'fortuitous' or 'purely ad hoc'.
16. Insofar as qualification of the petitioner is concerned, I really fail to understand that on what basis, the respondents would claim that the petitioner was ineligible when admittedly the qualification for engagement of teachers on PTA basis came to be prescribed only in the year 2006 when the PTA Grant-in-
Aid Rules, were promulgated.
17. That apart, as already observed earlier, petitioner has not only qualified Prabhakar but is a Post Graduate in Hindi and thereafter done her B.Ed that too prior to her engagement.
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 818. It is not in dispute that the petitioner was appointed by the then PTA Association who were .
competent to appoint the petitioner and has worked not only for a fairly long period, but for a very long period of more than 13 years and, therefore, under no circumstances can her appointment be held to be 'stop of gap' or 'fortuitous' or 'purely ad hoc'.
19. rt Notably, it is not even the case of the respondents that the petitioner is not eligible in terms of PTA Grant-in-Aid Rules, 2006 and, therefore, being fully qualified she cannot be denied the grant-in-aid.
20. As observed earlier, the petitioner has put in nearly 14 years of service and is being paid an honorarium which would not even be sufficient for the petitioner to sustain herself, much less to lead a decent living and, therefore, this only amounts to exploitation.
21. This court was seized of somewhat similar issue in Promila Devi Vs. State of HP & Ors, ILR 2015 (II) HP 1 (589) decided on 2.4.2015, wherein like the present case, petitioner had been engaged in the year 2005 and was being paid a meager remuneration of Rs.1,000/- and this court held as under:
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 9"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 of admittedly the petitioner has already been paid the salary out of PTA fund with effect from April 2010 to March 2013.7
rt 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 on the sheer strength of the unequal bargaining power and it was held as under:
"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 celebrated decision of Central Inland Water Transport Corporation Ltd. Vs. Brojo Nath Ganguly and another, (1986) 3 SCC 156,which reads as under:-::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 10
"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 of inequality of bargaining power between the parties although arising out of circumstances not within their control or as rt 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 ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 11 and watch supinely while the strong trample under-foot 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 of Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle rt 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 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 ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 12 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 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 of form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties rt 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 ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 13 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 of circumstances to accept the offer made by the respondents, but then the mere acceptance of this offer would not give it a rt 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:-
"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 ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 14 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 employee in an appropriate manner so that an employee is not condemned to feel totally subservient to of the situation. A model employer should not exploit its employees and take advantage of their helplessness and rt misery. The conduct of the respondents falls short 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 ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 15 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).
of "21....The main concern of the court in such matters is to ensure the rule of law and rt 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 citizens of India entitled for being considered for recruitment in the vacant posts.
::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 1665. 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 of aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for rt everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with 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."
22. At this stage, I may also notice that it is not even the case of the respondents that the petitioner had not been discharging her duties diligently, honestly and faithfully so as to deprive her of the grant-in-aid. This aspect of the matter has also been considered in Promila Devi's case (supra), wherein this court held as under:
"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.::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 17
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 of 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 rt 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 of the respondents falls short of expectation of a model employer.
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 grant in aid but having worked for nearly a decade, the petitioner can also not be denied her legitimate claim for regularization.
12. A similar question came upfor 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 30thNovember, 1992 the petitioner was working as part time sweeper/water carrier at Govt. Senior Secondary School, Kalal, District ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 18 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 of selected.
3. We called for the record and we find that the rt 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."
23. Taking cue from the aforesaid judgments and bearing in mind the peculiar facts and circumstances of the case, more particularly the fact that the petitioner has been ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP 19 working for the last almost 14 years (since 29.6.2002), this court is of the view that the following directions would sub-
.
serve the ends of justice:-
(i) The respondents are directed to release the grant in aid in favour of the petitioner from the date when the grant in aid Rules were notified;
of and
(ii)rt The respondents are further directed to consider the case of the petitioner for regularization in accordance with the policy.
24. The aforesaid directions be complied with within three months, failing which respondents shall be liable to pay interest on the aforesaid amount @ 9% p.a. from the date when the amount(s) was due till the final payment thereof.
With these observations, the petition is disposed of in the aforesaid terms, leaving the parties to bear their costs.
(Tarlok Singh Chauhan), Judge.
April 21, 2015 (sl) ::: Downloaded on - 15/04/2017 20:09:23 :::HCHP