Tarlok Singh Chauhan, Judge (Oral)
By medium of this petition, the petitioner has claimed the following substantive reliefs:
(i) That further writ in the nature of mandamus may be issued directing the respondents to release the grant in aid in favour of petitioner from the date the grant in aid Rules were notified and such grant in aid were released to the similarly situated persons along with interest as this Hon'ble Court deems fit and the arrears be paid within a reasonable period.
(ii) That further writ in the nature of mandamus may further kindly be issued directing the respondents to release the grant in aid regularly in future in favour of the petitioner.
2. In nutshell the case of the petitioner is that on 30.8.2005, she was appointed as Drawing Teacher by the Mother Teacher Association (MTA). Vide resolution No. 3 dated 5.5.2008 her appointment was re-endorsed by the Parent Teacher Association (PTA) and thereafter on 10.9.2009 the Headmaster of the concerned school recommended her case for releasing the grant in aid in her favour since the petitioner had been working prior to coming into force the grant in aid Rules.
3. In reply to the petitioner, it was averred that appointment of the petitioner made by the MTA was without conducting the interviews. It was further contended that after joining the petitioner on 1.9.2005 herself gave in writing that she was not interested to receive any payment and would be working only to gain experience. On 5.5.2008, P.T.A was formed in the school and vide resolution No. 2 it decided to pay the petitioner a sum of Rs. 1000/- out of PTA fund and school also gave its consent regarding engagement of the petitioner, which services are continuing till date.
4. During the course of hearing, the petitioner had pointed out that she had in fact been paid the grant in aid with effect from April 2010 to March 2013 and therefore, was entitled to the grant in aid for the period prior to April 2010 and subsequent to March 2013. The respondents sought time to verify these facts and thereafter placed on record the instructions dated 13.11.2014, which read thus:-
“In this regard it is intimated that the petitioner was engaged as Drawing Master on honorary basis (without pay) by the MTA on 30.8.2005 of the concerned institution vide resolution No. 3. On 5.5.2008 the PTA of the concerned school had started paying her Rs. 1000/- per month out of PTA fund. It is pertinent to submit here that the petitioner was not engaged under GIA Rules, 2006 and was engaged much earlier than the commencement of these Rules i.e in the year 2005. Hence the Grant in aid has not been released in her favour. But the same was released in her favour inadvertently by the Principal/DDO of the concerned institution for the period April, 2010 to March, 2013. When this mistake came in the notice, the Grant in aid to the petitioner has rightly been stopped.”
5. The respondents were thereafter directed to produce on record the resolution No. 3 passed by the MTA on 30.8.2005 and further produce resolution No. 3 passed by the PTA on 5.5.2008 The respondents by way of supplementary affidavit have placed on record these two resolutions. A perusal of these resolutions would show that on 30.8.2005 the petitioner was offered the appointment of Drawing Teacher in place of one Smt. Asha Kumari wife of Satish Kumar, who allegedly had not been performing her job diligently. Therefore, once the petitioner was given a substituted appointment, it is difficult to comprehend that her appointment would be only on honorary basis or without remuneration.
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 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 (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.”
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 Rs. 21,000/- per month as remuneration instead of Rs. 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 v. 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 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 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 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 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 up for consideration before learned Division Bench of this Court in Pritam Singh v. State of Himachal Pradesh, 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.”
13. Taking cue from the aforesaid judgement and bearing in mind the peculiar facts and circumstances of the case more particularly the fact that the petitioner has been working for nearly a decade, 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; and
(ii) The respondents are further directed to consider the case of the petitioner for regularization in accordance with the policy.
14. The aforesaid directions be complied with within a period of three months. The petition is disposed of accordingly. No costs.