Tarlok Singh Chauhan, Judge (Oral).

By medium of this petition, the petitioner has claimed the following substantive reliefs:

(i) That the respondents may be directed to release the arrears of Grant-in-aid to the petitioner as per the ‘Grant-in-Aid to Parent Teacher Association Rules, 2006’ since the year 2006 till date and continue the same till the services are rendered by the petitioner.

(ii) That the State/respondent No. 1 be directed to release the grant-in-aid to the respondents No. 4 and 5 as is being given to all schools for the payment of salary to PTA teachers and was also given to the present school of the petitioner till couple of months back, to ensure the smooth teaching in the school in the interest of students at large.

(iii) That in the eventuality of non-availability of vacancy in the Government Senior Secondary School, Gandhir, Bilaspur, the petitioner be adjusted in any other school in District Bilaspur of Himachal Pradesh.

2. The brief facts, in nutshell, are that the petitioner was appointed as a Trained Graduate Teacher (TGT Science) in Government Senior Secondary School, Gandhir, Bilaspur, H.P on 3.9.2002 and is continuing as such till date. It is alleged that the appointment of the petitioner was extended from time to time through various resolutions passed by the Parent Teacher Association (PTA). It is alleged that the petitioner has been continuously working since September 2002 against the vacant post and in the year 2006, the petitioner was made to work against leave vacancy created on account of the incumbent having gone on extra-ordinary leave till 2008 and now the petitioner is still working as on date.

3. The respondents have not disputed the fact that the petitioner is working since 2.9.2002 and have further not denied that she is working against the vacant post w.e.f 6.1.2006 Ostensibly, the only reason for not paying the honorarium to the petitioner is the fact that according to the respondents, the PTA Committee engaged the petitioner much prior to the Rules i.e ‘PTA Grant in Aid Rules, 2006 came into force and the other reason put forth by the respondents is that at the time of appointment of the petitioner, the post of TGT (Non-Medical) was not vacant in the school.

4. I have heard learned counsel for the parties and gone through the records of the case.

5. It has nowhere the case of the respondent that the petitioner is not qualified in terms of the ‘Grant in Aid Rules. It has also not their case that the petitioner has not been appointed against a vacancy w.e.f 6.1.2006 Then can the mere fact that the initial appointment of the petitioner had been made by the PTA prior to promulgation of the Rules be considered to be a relevant factor to refuse the relief to the petitioner.

6. To my mind, the stand of the respondents cannot be countenanced once they themselves admit that the petitioner had been appointed against a vacancy w.e.f 6.1.2006 Even otherwise, the petitioner has only claimed the arrears of grant in aid w.e.f 2006 and not from the date of her initial appointment in the year 2002.

7. At this stage, a wider issue arises for consideration as to whether the State or its instrumentalities as a model employer after having extracted more than a decade of service from the petitioner can claim that she has not been regularly appointed.

8. A learned Division Bench of this Court in LPA No. 132 of 2014 titled Dr. Lok Pal v. State of Himachal Pradesh 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. v. Brojo Nath Ganguly, (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 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 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 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 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. v. 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 v. State of Assam, (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 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 then only the concept of good governance can be concretised. We say no more.”

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 of the respondents falls short of expectation of a model employer.

11. It is not the case of the respondents that petitioner has not been discharging her duties diligently, honestly and faithfully. Therefore, in such circumstances while demanding her legitimate due by way of grant in aid under the Rules, the petitioner has not asked for the moon.

12. In view of the aforesaid discussion, there is merit in the petition and the same is allowed and the respondents are directed to release the grant-in-aid to the petitioner as per the ‘Grant-in-Aid to Parent Teacher Association Rules, 2006’ from the date of promulgation of the Rules. No costs.