Himachal Pradesh High Court
Dharam Pal Singh vs State Of H.P. And Others on 26 March, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP No. 4451 of 2013 .
Date of decision: 26.3.2015
Dharam Pal Singh ...Petitioner.
Versus
State of H.P. and others ..Respondents.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting ?1 No For the Petitioner : Mr. B. S. Chauhan, Advocate.
For the Respondents : Mr. Virender Kumar Verma , Addl.
Advocate General with Ms. Parul Negi, Dy.
Advocate General.
Tarlok Singh Chauhan, Judge ( Oral ) By way of present writ petition, the petitioner has claimed the following reliefs:
"1) That the writ of certiorari be issued to set aside the advertisement dated 5.6.2013 (Annexure P-4) in view of the submissions made hereinabove.
2.) That the writ of mandamus be issued directing the respondents to allow the petitioner to work in the college as Lecturer (Computer Science) till regular appointments are made."
2. The petitioner having obtained a degree in Master of Computers Application in first division came to be appointed as Lecturer in the respondent No.3-College (on period basis). This appointment was pursuant to an advertisement issued in this regard in the local daily and it was only after undergoing a selection process by appearing before a duly 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 2 constituted Committee that the petitioner came to be appointed. The petitioner continued to work for two years but thereafter the respondent .
No.3 again advertised the same post on similar conditions i.e. period basis to which the petitioner has taken exception and approached this Court contending that the action of the respondents amounts to replacing a contractual employee by another set of contract appointee.
3. The respondents have filed the reply and have stated that the petitioner was initially engaged on 4.7.2011 to teach the B.C.A. courses purely on temporary basis for the academic session 2011-2012 and he worked as such till 24.4.2012. The petitioner was again engaged on 21.6.2012 on the same terms and conditions for the academic session 2012-2013 and worked as such upto 4.4.2013. It is then alleged that in the terms and conditions of appointment of the petitioner, it has been specifically stated that he is not entitled to claim any financial or service benefit and therefore, the petitioner cannot be permitted to continue teaching especially when the academic session for which he had been engaged has already ended.
4. I have heard learned counsel for the parties and have also gone through the records of the case carefully.
5. The short question which arises for consideration is as to whether the respondents can be permitted to replace the petitioner by another contract appointee especially when the petitioner is duly qualified and has been engaged after due selection and his integrity as well as work and conduct has been duly certified time and again. It is true that the petitioner may not have a right to be appointed as a permanent employee at this stage, but this Court cannot shut its eyes to the fact that ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 3 he has been working on contract basis for more than two years to the satisfaction of the respondents' authorities.
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6. Dispensing of services of the petitioner after the completion of his contract period is nothing short of termination. The services of the petitioner are sought to be replaced by another contract employee which as held by the Hon'ble Supreme Court in State of Haryana and others vs. Piara Singh and others (1992) 4 SCC 118, is not permissible in law.
reads thus:
r to It is apt to reproduce the paragraphs 45, 46 and 47 of the report which "45. The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an adhoc or temporary appointment to be made. In such a situation, effort should always be to replace such an adhoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection/appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an adhoc/temporary employee.
46. Secondly, an adhoc or temporary employee should not be replaced by another adhoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
47. Thirdly, even where an adhoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly."
::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 47. Indisputably, the respondent No.3 is a Government College and, therefore, cannot be permitted to not only indulge in unfair practice .
but it also cannot be permitted to take advantage of its sheer strength of bargaining power. The Division Bench of this Court in LPA No. 132 of 2014 in Dr. Lok Pal vs. State of H.P. and others, (of which I was one of the member), was seized of the matter where though the appellant therein had been appointed on a consolidated salary of ` 43,000/- per this Court held as under:
r to month in terms of the advertisement but was actually paid ` 21,000/- and "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:-
"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 ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 5 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 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 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 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 ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 6 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 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 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 ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 7 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.
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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 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 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 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) ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 8
"13.... As a model employer the Government must conduct itself with high probity and candour with its employees."
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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 citizens of India entitled for being considered for recruitment in the vacant posts.
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 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 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 ::: Downloaded on - 15/04/2017 17:53:33 :::HCHP 9 then only the concept of good governance can be concretised. We say no more."
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The position in this case is no different from that of Dr. Lok Pal's case (supra).
8. The Central Government, State Governments and likewise all Public Sector undertakings are expected to function like model employers. A model employer is under an obligation to conduct itself with high probity and expected candour. An 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 the employees and take advantage of their helplessness and misery.
9. Ex-consequenti the present petition is allowed and the advertisement dated 5.6.2013 (Annexure P-4) issued by the respondent No.3 is quashed and set-aside and the respondents are directed to allow the petitioner to work in the College as Lecturer (Computer Science) till regular appointments are made or till such time that the petitioner himself does not incur any disqualification from holding the post.
Accordingly, the present petition stands disposed of in the aforesaid terms, so also the pending application(s), if any. The parties are left to bear their own costs.
March 26, 2015 ( Tarlok Singh Chauhan),
(GR) Judge
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