HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Date of order: 01.06.2018 Dr. [ENTITY] v.
State of JK and others Coram:
Hon'ble Mr. Justice [ENTITY], Judge Appearing Counsel:
For Petitioner(s): Mr. [ENTITY], Advocate For Respondent(s): Mr. [ENTITY], AAG Whether approved for reporting? Yes
1. The fascicule of the facts, necessitous and germane to comprehend the backdrop of the present writ petition, based whereupon a case has been set in motion and the present legal process built, has its genesis and origin to the envisioning of the claim of the petitioner as treating him a fresh appointee by the [CASE NUMBER] dated 20th February 2003, has put him in uncertainty and melancholy. It is this order of which petitioner is aggrieved and throws challenge thereto on grounds exhorted in writ petition on hand.
2. The petitioner pleads that he, amongst others, came to be appointed as an Assistant Surgeon by the [CASE NUMBER] dated 29th August 1989. He figures at serial no.55 in the aforesaid Government order.
He was adjusted at District Udhampur. He thereafter applied for undergoing the Junior Residency at Sher-e- Kashmir Institute of Medical Sciences (SKIMS) Soura. The permission therefor was vouchsafed. He successfully underwent and completed his Junior Residency. The petitioner was selected for undergoing the Post Graduate Course in the Surgery at SKIMS Soura and in order to allow him to undergo the Post Graduate Course, the respondent no.1 granted No Objection in his favour. He completed the Post-Graduation in General Surgery and was relieved vide Order no.ACAD/172 of 1997 dated 16th October 1997. The petitioner was selected as Stipendary Senior Resident in the discipline of Surgery and its allied speciality by [CASE NUMBER] dated 19th May 1998, issued by SKIMS. It is stated that an advertisement notice was issued by the [ENTITY], inviting applications on the prescribed form from the inservice permanent resident doctors of the J&K State who had put in at least two years' physical service in the J&K Health Department after obtaining Post Graduation Degree for appointment to the tenure posts of Registrars for a period of two years in respect of various disciplines. The petitioner responded thereto. He was, vide letter dated 8th May 1998, recommended by the Principal/Dean to be appointed as Registrar in the discipline of Surgery. The approval to the appointment of the petitioner and other doctors as the Registrars in the Government Medical College, [ENTITY], was conveyed vide letter no.ME-Gm-76/90 dated 5th June 1998, in relaxation of two years physical service in the Health Department. Petitioner maintains that the petitioner and other candidates could not join the tenure post of Registrar as the list of selected candidates for Registrarship was stayed by this Court and that it was only after the stay granted by this Court was vacated that the petitioner vide [CASE NUMBER] dated 17th June 1999 was relieved from SKIMS, so as to allow him to join as the Registrar in the Department of General Surgery at the Government Medical College, [ENTITY]. The petitioner claims that though the initial engagement of the petitioner as Registrar was only for a period of two years, which being not inconformity with the Rules framed by the Medical Council of India, it constrained the petitioner along with the other Registrars to approach this Court with writ petition, which was diarised as [CASE NUMBER]. The said writ petition was disposed of in light of the communication placed on the record of the Reply filed by the respondents, by which the Principal Government Medical College was asked to allow the Registrars to complete three years' tenure.
3. The petitioner next avers that as he completed the requisite three years period on 16th June 2002, he was, by order dated 13th June 2002, issued by the [ENTITY], relieved with effect from 16th June 2002 (A.N.). He, accordingly, submitted his joining report before the respondent no.1 on 17th June 2002 and waited for his suitable adjustment. However, instead, a show cause notice was issued, which was received by him on 18th June 2002, asking to show cause as to why the action would not be initiated against him for resorting to the unauthorised absence. In response to the show cause notice, the petitioner claims that he submitted a detailed reply, inter alia, contending therein that he has not resorted to unauthorised absence and as a matter of fact he was undergoing the course after obtaining due permission from the competent authority and the course, is not only for the betterment of the petitioner but also for the better health care of the patients. It is averred that the respondent no.1 issued a Government Order bearing [CASE NUMBER] dated 20th February 2003, whereby the petitioner was allowed to join the department as a fresh appointee.
4. It is claimed by the petitioner that since he was not in a bargaining position as he was without salary for a period of more than nine months and the fact that he had not only to feed himself but his family as well, he joined in pursuance of the Government Order bearing [CASE NUMBER] dated 20th February 2003. He immediately thereafter moved a representation for settlement of his period and not to treat him a fresh appointee. Non-consideration constrained him to again file a representation, which was forwarded by respondent no.2 to respondent no.1 vide letter dated 30th October 2009. The petitioner avers that he was under a bona fide belief that the final orders as regards the period in dispute would be passed but the respondents slept over the matter for some unknown and undisclosed reasons, which constrained him to make an application under the [ACT] ([ACT], seeking the information qua the treatment given to the similarly situated persons. In response thereto, however, the respondents provided the vague information by communication dated 29th November 2011 and it was intimated that a lenient view was taken in the matter. As regards the similarly situated persons, the petitioner was asked to furnish a list of the doctors in whose favour the information was required notwithstanding the fact that the list of such doctors was already submitted by the petitioner along with his RTI application. The petitioner is aggrieved of [CASE NUMBER] dated 20th February 2003 and seeks quashment thereof to the extent it treats him as a fresh appointee, with a direction to the respondents to count the service of the petitioner rendered from the year 1989 to 2003 and restore the seniority of the petitioner at an appropriate place by reckoning the petitioner's previous service and consequent thereto grant all consequential benefits to the petitioner to which he is entitled to.
5. The respondents 1&2, in their Reply Affidavit, insist that the petitioner was holding the post of the Assistant Surgeon in the respondent department and while working at A. D. Sangaldan, the petitioner was granted No Objection for undergoing Post Graduation for one year at SKIMS, Soura, on 2nd March 1993. However, after completing the said Post Graduation, the petitioner did not resume his duties in the department. The petitioner sought grant of No Objection for undergoing Registrarship in Surgery at SMHS Hospital, [ENTITY], which was not granted to him. The petitioner did not report back to the respondent Health Department and chose to remain absent unauthorizedly from the duty. Consequently a show cause notice was issued and served upon him by the Health & Medical Education Department vide letter no.HD(Gaz)A/ 39/2002 dated 14th June 2002, asking him to show cause as to why action under rules be not taken against him for remaining unauthorizedly absent from the duties. The petitioner had remained on unauthorized absence for about five years and was as such liable to be terminated from service in terms of [SECTION] of the [ACT]. However, subsequently the request of the petitioner for allowing him to rejoin the department was considered by the Government and thereafter vide [CASE NUMBER] dated 20th February 2003, the petitioner was allowed to rejoin the department as a fresh appointee as Assistant Surgeon for all purposes in terms of the Government [CASE NUMBER] dated 7th April 2000 and was directed to report to the Directorate of Health Services, Jammu, for further duties. Thus, the petitioner was allowed to rejoin the department subject to the terms and conditions contained in the said government order which he accepted and acted upon it.
6. The [ENTITY] - respondent no.1, in his Reply, avouches that the petitioner had worked in the Government Medical College, [ENTITY], in the capacity of the Registrar in the Discipline of Surgery for a period of three years with effect from 17th June 1999 to 13th June 2002.
7. Rejoinder has been filed by the petitioner. He reiterates therein that he has never applied for the settlement of his case in terms of the [CASE NUMBER] dated 7th April 2000 and even otherwise the case of the petitioner could not have been considered in terms of the said Government order inasmuch as the same is applicable to doctors, who have gone abroad for employment. It is maintained that the petitioner has never gone abroad for employment and it is admitted by the parties that the petitioner was undergoing P.G. Course and thereafter Senior Residency Course and that of the Registrarship at [ENTITY] only. The circumstances under which the petitioner had to accept the order impugned, it is next averred, are writ large on the face of the record inasmuch as the petitioner despite submitting the joining report was not allowed to discharge his duties for a period of more than nine months. The petitioner asserts that he has not remained on unauthorised absence and he was granted due permission.
8. I have heard the learned counsel for the parties and considered the matter.
9. Learned counsel for the petitioner, to bolster the case set up by the petitioner, sturdily states that it is not in dispute that the petitioner had worked as the Registrar in the Discipline of Surgery in the Government Medical College, [ENTITY], and approval in this regard was also conveyed by the Health and Medical Education Department. In this regard the learned counsel has invited attention of this Court to the communication bearing no.ME-GM-76/90 dated 5th June 1998 (Annexure I to writ petition), by virtue of which the approval has been conveyed for appointment of doctors as was sought for in terms of communication bearing no.Acd/ 1589/MC dated 8th May 1998 (Annexure H to writ petition). The learned counsel for the petitioner has also referred to the order dated 18th July 2002, passed by a Bench of this Court in [CASE NUMBER] titled [PRECEDENT], whereby the aforesaid writ petition was disposed of in view of the communication produced by the learned counsel for the respondents, requiring the Principal, Government Medical College, [ENTITY], to allow the Registrars to complete three years' tenure. Prior to treating the petitioner as a fresh appointee, he was required to be heard as treating a permanent government employee as a fresh appointee entails civil consequences because by treating the petitioner as a fresh appointee the entire service rendered previously has been put at naught. By this act of the respondents, the petitioner has not only lost his seniority but his increments, chances of promotion and other service benefits including pensionary benefits to which he is entitled to on the basis of his previously rendered services. The learned counsel for the petitioner, to buttress his arguments, has placed reliance on [PRECEDENT].
10. The learned counsel for the respondents states that once the petitioner re-joined the department pursuant to the impugned order and has been working and availing the benefits of his fresh appointment, therefore, he cannot turn around after more than a decade to challenge the government order to the extent of his fresh appointment. He has also insisted that the fresh appointment of the petitioner has been made so as to give him one more chance to serve his own people and not to reopen his case after such a considerable long period of time.
11. The petitioner way back in the year 1989, after the J&K Public Service Commission recommended his name along with other selected candidates, came to be appointed as the Assistant Surgeon by virtue of the [CASE NUMBER] dated 29th August 1989 (Annexure A to writ petition). The petitioner's intent to undergo the Post-
Graduation Course through SKIMS received the assent when No Objection (Annexure C to writ petition) was vouchsafed in his favour by the Health and Medical Education Department. In the year 1998, the vacant posts of Registrars in various disciplines of Government Medical College, [ENTITY], were advertised vide notice no.Acad/ RD/ 98/846-70/MC dated 9th March 1998 (Annexure G to writ petition). The petitioner responded thereto and competed in the selection process. The interview was held by the Selection Committee on 16th April 1998. The [ENTITY], vide letter no.Acad/1589/MC dated 8th May 1998 (Annexure H to writ petition), solicited approval to the recommendations made by the Selection Committee for issuance of the appointment orders in favour of ten doctors, who were in Government Service, for the posts of Registrars. It is important to reproduce the relevant portion of the communication dated 8th May 1998, addressed by the [ENTITY], to the Commissioner/Secretary to Government, Health and Medical Education Department, [ENTITY], as it has sealing effect on the present controversy, hereunder:
"The vacant posts of Registrars in various disciplines were advertised under this office notice No. Acad/RD/98/846-70/MC dated 9 March 1998, a copy th whereof is enclosed. For certain unavoidable reasons the interview could not be held on 3rd and 4th April, 98 as indicated in the advertisement notice. Subsequently in view of the small number of applicants, the interview was held by the Selection Committee on 16th April, 1998. A copy of the minutes of the meeting of the committee is also attached herewith, as per the standing instructions.
It is requested to kindly convey the approval to the following recommendations made by the Selection Committee as expeditiously as possible to facilitate the issue of the appointment order in a consolidated form:-
(i) The following doctors who are in Govt. service but do not possess the two years experience after P.G. be also appointed as Registrars in the disciplines indicated against their names for a period of two years and a recommendation be made to the Govt. for grant of relaxation:-
1. Dr. [ENTITY] ENT
2. Dr. [ENTITY] Qadri Surgery
3. Dr. [ENTITY] -do-
4. Dr. [ENTITY] -do-
5. Dr.[ENTITY] -do-
6. Dr. [ENTITY]
7. Dr. [ENTITY] Surgery
8. Dr. [ENTITY] -do-
9. Dr. [ENTITY]
10.Dr. [ENTITY]"
12. Perusal of the above quoted passage of the communication bearing no.Acd/1589/MC dated 8th May 1998, divulges that the petitioner was figuring at serial no.07 amongst the ten selected and recommended doctors for being appointed in the tenure posts of the Registrars for a period of two years in the Government Medical College, [ENTITY]. All the ten doctors, including the petitioner, have been shown in- service candidates. Their recommendation had been made by the Selection Committee notwithstanding they were not possessed of two years' experience after Post Graduation. All in all, the aforesaid communication portrays the petitioner being in "government service" at that relevant point of time. Another aspect of the matter, which has significant impact on the controversy in hand is that the addressor of the communication no.Acad/1589/MC dated 8th May 1998 (Annexure H to writ petition) is none other than the [ENTITY] and the cherry on the cake is that the said communication has been addressed to the respondent no.1 (Commissioner/ Secretary to Government, Health and Medical Education Department). It cannot be heard saying from the respondents 1&2 that she (Principal, GMC, [ENTITY]) was oblivious or ignorant of the petitioner not being in government service, the moment she mooted the proposal of ten doctors, including the petitioner, for taking the job of Registrarship in Government Medical College, [ENTITY]. Such adage (oblivious or ignorant) cannot be made use of vis vis the respondent no.1, when his office vide communication no.ME-GM-76/90 dated 5th June 1998 (Annexure I to writ petition) attested and documented the proposal of the respondent no.3, by vouchsafing the approval to it. Germane it would be to reproduce the apropos extract of the communication no.ME-GM-76/90 dated 5th June 1998, infra:
"I am directed to refer to your letter No.Acd/1589/MC dated 08.05.1998 on the subject and to convey the approval of this Department to the appointment of doctors mentioned in your above quoted letter as Registrars in various disciplines in Government Medical College, [ENTITY] in relaxation of 2 years physical service in the Health Department."
13. What is discernible from the above quoted extract of the communication bearing no.ME-GM-76/90 dated 5th June 1998, is the approval the Government through the Health and Medical Education Department, granted in favour of ten doctors, including the petitioner, for their appointment in the tenure posts of the Registrars in the Government Medical College, [ENTITY]. The matter does not, however, end here. It is not only that the Government had granted the permission in favour of the petitioner and nine other candidates for taking the job of Registrarship, but one more important facet of the matter that requires to be gone through and appreciated, is that the above quoted letter also in unequivocal terms provides and portrays the "relaxation of 2 years physical service in the Health Department", in favour of the ten doctors, which includes the petitioner. Having said so, whether the petitioner had completed two years' physical service in the respondent department at the time of his selection as the Registrar in the respondent department or not, has been set at rest by the Government in terms of the communication no.ME- GM-76/90 dated 5th June 1998 and therefore, the plea of not having the physical service of two years in respondent department, cannot be and/or could not have been made use of by the respondent department subsequently while passing the impugned order. The said communication, granting approval, has remained uncontroverted and belies the submission of the respondents 1&2 that the "petitioner without resuming back his duties had requested for grant of no-objection for doing Registrarship in Surgery at SMHS Hospital, [ENTITY], which was not granted to him". Even one of the respondents, viz. the respondent no.3 has knocked the bottom out of the case of the respondents 1&2. The respondent no.3, in his reply, has claimed and maintained that "the petitioner Doctor [ENTITY] had worked in GMC, [ENTITY] in the capacity as Registrar in the discipline of Surgery for a period of three years with effect from 17th June 1999 to 13th June 2002". In that view of matter, the stand of the respondents that the petitioner remained unauthorizedly absent to issue the impugned order, treating him as a fresh appointee, could not withstand the test of fairness and therefore is pregnant with arbitrariness.
14. Be that as it may, the petitioner has made out a case for grant of the relief(s) implored for by him in the writ petition on hand. However, the above discourse needs to be overstretched.
15. It may not be out of place to mention here that the men's concept of the State as a polity or a political unit or entity and what the functions of the State are or should be, have changed over the years and particularly in the course of this century. A man cannot tenaciously cling to the same ideas and concepts all his life. As [ENTITY] said in his essay on "Self-Reliance", "A foolish consistency is the hobgoblin of little minds". Man is by nature ever restless, ever discontent, ever seeking something new, ever dissatisfied with what he has. This inherent trait in the nature of man is reflected in the society in which he lives for a society is a conglomerate of men who live in it. Just as man by nature is dissatisfied, so is society. Just as man seeks something new, ever hoping that a change will bring about something better, so does society. Old values, old ideologies and old systems are thus replaced by new ideologies, a new set of values and a new system; they in their turn to be replaced by different ideologies, different values and a different system. The ideas that seem revolutionary become outmoded with the passage of time and the heresies of today become the dogmas of tomorrow. What proves to be adequate and suited to the needs of a society at a given time and in particular circumstances turns out to be wholly unsuited and inadequate in different times and under different circumstances.
16. The story of mankind is punctuated by progress and retrogression. Empires have risen and crashed into the dust of history. Civilizations have flourished, reached their peak and passed away. In the year 1625, [ENTITY], C.J., while delivering the opinion of the House of Lords in Re the Earldom of Oxford, (1625) W. Jo. 96, 101 SC (1626) 82 E.R. 50, 53, in a dispute relating to the descent of that Earldom, said:
" and yet time hath his revolution, there must be a period and an end of all temporal things, finis rerum, an end of names and dignities, and whatsoever is terrene "
17. The cycle of change and experiment, rise and fall, growth and decay, and of progress and retrogression recurs endlessly in the history of man and the history of civilization. [ENTITY] in the First Chorus from "The Rock"
said:
"O Perpetual revolution of configured stars, O Perpetual recurrence of determined seasons, O world of spring and autumn, birth and dying! The endless cycle of idea and action, endless invention, endless experiment".
18. The law exists to serve the needs of the society, which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, [ENTITY], said, "When I hear any man talk of an unalterable law, I am convinced that he is an unalterable fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the role of adapting the law to the necessities of the time, for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a [ACT] is too cumbersome and time-consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the courts because the courts can by the process of judicial interpretation adapt the law to suit the needs of the society.
19. I would like to quote the following passage, which has become a classic, from the opening paragraph of Justice [ENTITY]'s "The Common Law", which contains the lectures delivered by him while teaching law at Harvard and which book was published in 1881 just one year before he was appointed an Associate Justice of the Massachusetts Supreme Judicial Court:
"It is something to show that the consistency of a system requires a particular result, but it is not all. me life of the law has not been logic : it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past."
20. I now turn to the plea of the respondents that once the petitioner accepted and acted upon the [CASE NUMBER] dated 20th February 2003, as a fresh appointee, he is estopped to challenge the said government order. To this, the learned counsel for the petitioner has strenuously argued, and rightly so, that by virtue of the superior position of the respondents vis vis the petitioner, he was made to comply the impugned order inasmuch as the petitioner had no option but to kneel down before the respondents. His further submission is that the parties did not stand on an equal footing and did not enjoy the same bargaining power, and that the power used and utilized by the respondents was arbitrary and uncanalized. The learned counsel for the petitioner, to buttress his submissions, has taken this Court through some paragraphs of the judgment of the Supreme Court in the case of [PRECEDENT] (supra), wherein the Supreme Court has accepted the position that certain regulations made by employers need to be struck down, being a reflection of unequal bargaining powers. This position was reiterated by the Supreme Court in the case of [PRECEDENT].
21. The general rule as stated by [ENTITY], J., in Pickering v.
Ilfracombe Ry. Co., [1868] L.R. 3 C.P. 235 (at page 250) is as follows:
"The general rule is that, where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good".
22. Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. No case of the type before us appears to have fallen for decision under the law of contracts before any court in India nor has any case on all fours of a court in any other country been pointed out to us. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288, when used with reference to actions etc. as "showing no regard for conscience; irreconcilable with what is right or reasonable". An unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable.
23. Although certain types of contracts were illegal or void, as the case may be, at Common Law, for instance, those contrary to public policy or to commit a legal wrong such as a crime or a tort, the general rule was of freedom of contract. This rule was given full play in the nineteenth century on the ground that the parties were the best judges of their own interests, and if they freely and voluntarily entered into a contract the only function of the court was to enforce it. It was considered immaterial that one party was economically in a stronger bargaining position than the other; and if such a party introduced qualifications and exceptions to his liability in clauses which are today known as "exemption clauses" and the other party accepted them, then full effect would be given to what the parties agreed. Equity, however, interfered in many cases of harsh or unconscionable bargains, such as, in the law relating to penalties, forfeitures and mortgages. It also interfered to asset aside harsh or unconscionable contracts for salvage services rendered to a vessel in distress, or unconscionable contracts with expectant heirs in which a person, usually a money-lender, gave ready cash to the heir in return for the property which he expects to inherit and, thus, to get such property at a gross undervalue. It also interfered with harsh or unconscionable contracts entered into with poor and ignorant persons who had not received independent advice [See: Chitty on Contracts, Twenty-Fifth Edition, Volume I, paragraphs 4 and 516].
24. Legislation has also interfered in many cases to prevent one party to a contract from taking undue or unfair advantage of the other. Instances of this type of legislation are usury laws, debt relief laws and laws regulating the hours of work and conditions of service of workmen and their unfair discharge from service, and control orders directing a party to sell a particular essential commodity to another.
25. In [PRECEDENT], the Supreme Court said that the Legislators, Judges and administrators are now familiar with the concept of distributive justice. Our [ACT] permits and even directs the State to administer what may be termed "distributive justice". The concept of distributive justice in the sphere of law-making connotes, inter alia, the removal of economic inequalities and rectifying the injustice resulting from dealings or transactions between unequals in society. Law should be used as an instrument of distributive justice to achieve a fair division of wealth among the members of society based upon the principle:
'From each according to his capacity, to each according to his needs'. Distributive justice comprehends more than achieving lessening of inequalities by differential taxation, giving debt relief or distribution of property owned by one to many who have none by imposing ceiling on holdings, both agricultural and urban, or by direct A regulation of contractual transactions by forbidding certain transactions and, perhaps, by requiring others. It also means that those who have been deprived of their properties by unconscionable bargains should be restored their property. All such laws may take the form of forced redistribution of wealth as a means of achieving a fair division of material resources among the members of society or there may be legislative control of unfair agreements.
26. When our [ACT] states that it is being enacted in order to give to all the citizens of India "Justice, social, economic and political", when [SECTION] of the [ACT] directs the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which the social, economic and political justice shall inform all the institutions of the national life, when [SECTION] directs the State, in particular, to minimize the inequalities in income, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations, and when [SECTION] enjoins upon the State that it shall, in particular, direct its policy towards securing that the citizens, men and women equally, have the right to an adequate means of livelihood and that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment and that there should be equal pay for equal work for both men and women, it is the doctrine of distributive justice which is speaking through these words of the [ACT].
27. Yet another theory which has made its emergence in recent years in the sphere of the administrative laws is the test of reasonableness or fairness of a clause in the administrative matters where there is inequality of bargaining power. Lord [ENTITY], M.R., appears to have been the propounder, and perhaps the originator - at least in England, of this theory. In [PRECEDENT], Lord [ENTITY] said:
"The time may come when this process of 'construing' the contract can be pursued no further. The words are too clear to permit of it. Are the courts then powerless? Are they to permit the party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreasonably, as to be unconscionable? When it gets to this point, I would say, as I said many years ago :
'there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused' : [PRECEDENT]. It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so."
28. It was in [PRECEDENT] that Lord [ENTITY] first clearly enunciated his theory of "inequality of bargaining power". He began his discussion on this part of the case by stating:
"There are cases in our books in which the courts will set aside a contract. Or a transfer of property, when the parties have not met on equal terms, when the one is so strong in bargaining power and the other so weak that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall. Hitherto those exceptional cases have been treated each as a separate category in itself. But I think the time has come when we should seek to find a principle to unite them. I put on one side contracts or transactions which are voidable for fraud or misrepresentation or mistake. All those are governed by settled principles. I go only to those where there has been inequality of bargaining power such as to merit and intervention of the court."
29. He then referred to various categories of cases and ultimately deduced therefrom a general principle in these words:
"Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on 'inequality of bargaining power'. By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word 'undue' I do not mean to suggest that the principle depends on proof of any wrongdoing. The one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconscious of the distress he is bringing to the other. I have also avoided any reference to the will of the one being 'dominated' or 'overcome' by the other. One who is in extreme need may knowingly consent to a most improvident bargain, solely to relieve the straits in which he finds himself. Again, I do not mean to suggest that every transaction is saved by independent advice. But the absence of it may be fatal. With these explanations, I hope this principle will be found to reconcile the cases." (Emphasis supplied)
30. From the above what is derivative is that should 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 [ACT] for our country. Our judges are bound by their oath to "uphold the [ACT] and the laws". The [ACT] was enacted to secure to all the citizens of this great Country social and economic justice. [SECTION] of the [ACT] 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 Article
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 or unfair and unreasonable act of the employer upon the employees, who are not equal in bargaining power.
31. By a hair's breadth ever has the voice of the timorous spoken more clearly and loudly than in the words of Lord [ENTITY] in [PRECEDENT] "Public policy is always an unsafe and treacherous ground for legal decision." That was in the year 1902. Seventy-eight years earlier, [ENTITY], J., in Richardson v. Mellish, [1824] 2 Bing. 229, 252; s.c. 130 E.R. 294, 303 and [1824-34] All E.R. Reprint 258, 266, described public policy as "a very unruly horse, and when once you get astride it you never know where it will carry you." The Master of the Rolls, Lord [ENTITY], however, was not a man to shy away from unmanageable horses and in words which conjure up before our eyes the picture of the young [ENTITY] the Great Taming Bucephalus, he said in [PRECEDENT], "With a good man in the saddle, the unruly horse can be kept in control. It can jump over obstacles." Had the timorous always held the field, not only the doctrine of public policy but even the Common Law or the principles of Equity would never have evolved. Sir [ENTITY] in his "History of English Law", Volume III, page 55, has said:
"In fact, a body of law like the common law, which has grown up gradually with the growth of the nation, necessarily acquires some fixed principles, and if it is to maintain these principles it must be able, on the ground of public policy or some other like ground, to suppress practices which, under ever new disguises, seek to weaken or negative them."
32. It is thus clear that the principles governing public policy must be and are capable, on proper occasion, of expansion or modification. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy which covers a case, then the court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority our courts have before them the beacon light of the Preamble to the [ACT]. Lacking precedent, the court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined in our [ACT].
33. So far as the original terms of employment, in the present case vis vis the services of the petitioner with the respondent department, are concerned, they are governed and regulated by the [ACT], and [ACT]. If an employee disobeys the Service Rules or displays negligence, inefficiency or insubordination or does anything detrimental to the interests or prestige of the employee or acts in conflict with the official instructions or is guilty of misconduct, such employee is liable to disciplinary action as contemplated under the Rules and Regulations in vogue. The respondents' submission that the petitioner was allowed to rejoin the respondent department as a fresh appointee in terms of Government [CASE NUMBER] dated 7th April 2000, is specious inasmuch as the Government [CASE NUMBER] dated 7th April 2000, exclusively relates and pertains to those doctors who had gone abroad without the permission of the competent authority and lays down the certain guidelines for settling the cases of the doctors who had taken up the foreign assignment and whose services were terminated by the Government on their return by reemploying them in the respondent department, treating them as fresh appointees. The [CASE NUMBER] dated 7th April 2000 does not at all apply to the case of the petitioner.
34. Qua accepting and acting upon the impugned order, undoubtedly, the petitioner accepted the appointment with the respondent department upon the terms contained in the impugned order. He had, however, no real choice before him. Had he not accepted the appointment, he would have been the ultimate sufferer and the same would certainly have exposed him to the hazard of finding another job.
35. The learned counsel for the respondents has insisted that once petitioner has acted upon the impugned order by joining the services, he is estopped in law to turnaround and reagitate the matter and this Court, therefore, cannot interfere with it. It is not possible for me to equate employees with goods, which can be bought and sold. It is equally not possible for me to equate a contract of employment with a mercantile transaction between two businessmen and muchless to do so when the contract of employment is between a powerful employer and a weak employee. The actions of the State and its functionaries must be inconformity with [SECTION] of the [ACT]. The progression of the judicial concept of [SECTION] from a prohibition against discriminatory class legislation to an invalidating factor for any discriminatory or arbitrary State action has been traced in Union of India v. [ENTITY] (1985) SCC 398. The principles of natural justice have now come to be recognized as being a part of the [ACT]al guarantee contained in [SECTION]. In [ENTITY]'s case the Supreme Court said:
"The principles of natural justice have thus come to be recognized as being a part of the guarantee contained in [SECTION] because of the new and dynamic interpretation given by this Court to the concept of equality which is the subject-matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is violation of [SECTION]; therefore, a violation of a principle of natural justice by a State action is a violation of [SECTION]. [SECTION], however, is not the sole repository of the principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of 'State' in [SECTION], is charged with the duty of deciding a matter."
36. Nevertheless, in the context of the unequal bargaining power of the respondent department qua the petitioner who was desperate for salary, the condition contained in the impugned order qua treating the petitioner as a fresh appointee through unequal bargaining power is nothing but an unconscionable covenant, forced by the respondent State on a person (petitioner) who hardly had any strength to resist the might of the respondent department. In fact, the petitioner had practically no choice in the matter and had to relinquish his claim for earlier service(s) rendered by him for long years. This type of covenant cannot be said to be right or reasonable and amounts to unconscionable contract, as has been held by the Supreme Court in the case of [PRECEDENT] (supra). The act of the respondents culminated in the impugned order concerning treating him a fresh appointee, violates one of the great rules of the natural justice - the audi alteram partem rule. It is not only in cases to which [SECTION] applies that the rules of natural justice come into play. As pointed out in [ENTITY]'s case (supra), "The principles of natural justice are not the creation of [SECTION]. [SECTION] is not their begetter but their constitutional guardian." That case has traced in some detail the genesis and development of the concept of the principles of natural justice and of the audi alteram partem rule. They apply in diverse situations and not only to cases of State action. As pointed out by [ENTITY], J., in [PRECEDENT], they are implicit in every decision-making function, whether judicial or quasi-judicial or administrative. Indubitably, in certain circumstances the principles of natural justice can be modified and, in exceptional cases, can even be excluded as pointed out in [ENTITY]'s case (supra). Given the above verbose discourse the impugned order qua treating the petitioner as a fresh appointee, however, is not covered by any of the situations which would justify the total exclusion of the audi alteram partem rule.
37. Taking the foregoing discussion, observations and reasons together, the writ petition is allowed. [CASE NUMBER] dated 20th February 2003, issued by the respondent no.1, to the extent it treats the petitioner as a fresh appointee, is quashed. The respondents are directed to count the service of the petitioner rendered from the year 1989 to 2003 and restore the seniority of the petitioner at an appropriate place by reckoning his previous service and consequent thereto grant all service benefits to the petitioner to which he is entitled to.
38. Disposed of.
([ENTITY]) Judge [ENTITY] 01.06.2018 [ENTITY]