WP(C) 5286/2004 BEFORE THE HON’BLE MR. JUSTICE HRISHIKESH ROY Heard Mr. I. Choudhury, learned Counsel appearing for the petitioners. Also hear d Mr. A. Deka, learned Standing Counsel appearing for the Education Department. 2. The petitioners who were appointed as Assistant Teachers in diff erent M.E. Schools under the Guwahati Sub-Division, following selection made in the year 1993-94 by the Sub-Divisional Level Advisory Board, challenge the commu nication dated 6th June 2003 (Annexure-J), whereby the Authority of the District level officers of the Education Department to regularize the services of ad hoc appointees have been curtailed and the said power is vested only on the Directo r of Elementary Education. They also seek disbursal of their current and arrear salaries. 3. At the very outset, it is submitted by Mr. Choudhury that in pur suant to the interim order passed by this Court on 27th August 2004, the petitio ners are now receiving their current salaries and the only issue that is left to be determined is the right of the petitioners to receive their arrear salaries from their respective date(s) of appointments in the year 1993-94. 4. Initially the salaries to the appointees were not disbursed by c onsidering them to be excess appointees. But in pursuant to a State Cabinet deli beration of 21st February 2000, a decision was taken by the Assam Government to regularize the services of 3511 teachers, who were appointed irregularly during the period from 1.3.1991 to 30.11.1996. This policy decision was taken on the ba sis of the recommendation made by the Committee headed by Mr. S. Manohoran and t he examination of individual cases by Screening Committee(s) and the petitioners were categorized amongst irregular appointees i.e. those who were appointed aft er proper selection but against non-sanctioned post(s). Accordingly regularizati on of 3511 numbers of irregular appointees were ordered and the names of the pet itioners find place at Sl. No. 7, 70, 91, 303, 310, 319 and 338 of the list (Ann exure-D), appended to the Circular dated 10th August 2000. 5. In the regularization order, it was recorded that the appointees would receive their current salaries w.e.f. 1st August 2000 and in the conseque ntial order of regularization issued by the District Elementary Education Office r (DEEO), Kamrupa an undertaking was obtained from each beneficiary that they wi ll not claim arrear salaries for the past service, which would however be counte d for Pensionary Benefits. 6.1 It is argued by Mr. Choudhury that when the services of the peti tioners have been regularized, the Government can’t deny its responsibility to p ay the arrear salaries of the teachers since their services were extracted and t he State’s salary obligation can’t start prospectively from the date of regulari zation of services. 6.2 Referring to the unequal bargaining power of the teachers, the l earned Counsel contends that an undertaking obtained from them for relinquishing arrear salary can’t be enforced in as much as, the State being placed in superi or bargaining position had insisted on securing such an undertaking from the pet itioners at the time of regularization of their services. Relying upon the decis ion of the Supreme Court in Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly reported in (1986) 3 SCC 156, it is submitted that a cont ract curtailing the claim of salaries for service rendered, is opposed to public policy and such unconscionable contract Clause is not at all reasonable and is void and un-enforceable. The learned Counsel relies upon the decision of the Sup reme Court in Sukhdeo Pandey vs. Union of India reported in (2007) 7 SCC 455 to submit that the State is obliged to pay salaries when service is extracted. 6.3 Pointing out that the petitioners were unaware that they were ap pointed in non-sanctioned posts, the learned Counsel submits that even in cases of such irregular appointment, the State is obliged to pay for the services rend ered by the appointees and in support of his contention, Mr. Choudhury relies up on a Division Bench decision of this Court in the case of State of Manipur vs. S tate Land Use Board Casual Employees’ Association reported in 2007 (1) GLT 409 . 7.1 Mr. A. Deka, learned Standing Counsel for the Education Departme nt however submits that the policy decision of the Government to regularize the services of irregularly appointed teachers can have only prospective operation a nd the petitioners have no legal right to claim salaries for the period, before their services were regularized. 7.2 The learned Standing Counsel further submits that since all the irregular appointees had given undertaking not to claim their arrear salaries as a condition for regularization and the petitioners having accepted the terms of regularization, they now can’t turn around and demand their arrear salaries. 7.3 The learned Standing Counsel also submits that the petitioners h ave not challenged the Clause in the Regularization Order which debar them from demanding any arrear salaries. 7.4 It is also submitted by Mr. Deka that services of nearly 3511 nu mbers of teachers were regularized at one go through a policy decision taken by the State Cabinet and considering that huge financial implications, the claim fo r arrear salaries should not be considered by the Court. 8. It is not disputed in this case that the petitioners were appoin ted after formal selection by the competent Sub-Divisional Level Advisory Board. Although it later transpired that appointments were made against non-sanctioned post(s), it was recorded in the appointment order(s) that the appointments are being given against allotted post in the concerned school. Therefore the appoint ees themselves had no reason to suspect that they have been irregularly appointe d. Only subsequently it came to light that appointments were given against non-s anctioned post(s). 9. Since large number of such irregular appointees were made to ser ve without any salary and the matter had be resolved, the Government constituted a Committee popularly known as the Manohoran Committee to examine the legality of those appointments. Eventually it was declared that appointments made after due selection but against non-sanctioned post(s), should not be considered as il legal but irregular and a policy decision was taken thereafter by the Governmen t, to regularize the services of such irregular appointees w.e.f. 1st August 200 0. 10. As per the Circular dated 5.3.2001 (Annexure-F), there is no dis pute that their regular salaries with effect from the date of regularization i.e . 1st August 2000 must be paid. The question is whether the appointees are disen titled to salaries, prior to the effective date of regularization. Since the Sta te is resisting the claim for arrear salary payment on the ground that an undert aking was obtained from each of the persons that they will not claim arrear sala ries, the legal implication of such undertaking is required to be addressed at t his stage. 11. When the Government secured such undertaking the teachers were d esperate and were serving without salaries which was stopped w.e.f. May 1995. Th ey were also anxious to have their services regularized. In such backdrop, when the State offered to regularize the services of the teachers with a pre-conditio n that they will not claim their arrear salaries, the teachers were hardly in a position to bargain and resist giving the undertaking to the State, as they were on the back foot and were not on equal bargaining position. 12. But in this context of the unequal bargaining power of the State vis-à-vis the teachers who were desperate for salaries and regularization, the Clause incorporated by the State through unequal bargaining power is nothing but an unconscionable covenant, forced by the State on a group who hardly had any s trength to resist the might of the State. In fact, the petitioners had practical ly no choice in the matter and had to relinquish their claim for arrear salaries , despite rendering service for long years. This type of covenant can’t be said to be right or reasonable and amounts to unconscionable contract, as has been he ld by the Apex Court in Brojo Nath Ganguly (supra). 13. Accordingly having regard to the decision of the Apex Court in G overnment of Orissa vs. Ashok Transport Agency reported in (2002) 9 SCC 28, the offending contract is declared to be a void covenant which can’t be enforced in law. Unlike a voidable contract, it is ab initio void and the Court is disin clined to refuse relief to the petitioners, on the basis of such void covenant. 14. In view of above and considering the law laid down by the Apex C ourt in Sukhdeo Pandey (Supra) and this Court’s decision in the case of State L and Use Board Casual Employees’ Association (Supra), I declare that the petition ers are entitled to their arrear salaries from their respective dates of appoint ment. 15. Having held thus the Court must also note that regular vacancies and budgetary provisions are unlikely to be available to make payment of the ar rear salaries for the concerned period prior to 1st August 2000 and the State ma y have to take special measures like creation of supernumerary post(s) and speci al allocations in order to make payment of the arrear salaries. Accordingly it i s ordered that necessary exercise for payment of arrear salaries be made by the respondent authorities expeditiously and preferably within 6 months from the dat e of receipt of a copy of this Court’s order. 16. The case is allowed without any order of cost with the above dir ection.