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
Whether reporters of Local Papers may be allowed to see the Judgment ? Yes

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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

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he has been working on contract basis for more than two years to the

satisfaction of the respondents' authorities.

.

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."

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7. 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

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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

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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

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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. 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)

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"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

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then only the concept of good governance can be
concretised. We say no more."

.

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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