Orissa High Court

Niranajan Das & Ors vs State Of Odisha & Ors on 7 October, 2021

                  ORISSA HIGH COURT: CUTTACK


                    WPC (OAC) NO. 1074 OF 2017
                               And
                    WPC (OAC) NO. 1956 OF 2017

      In the matter of applications under Articles 226 and 227 of
      the Constitution of India.
                               ---------------

AFR In WPC (OAC) No.1074 of 2017

Niranajan Das & Ors. ..... Petitioners

-Versus-

State of Odisha & Ors. ..... Opp. Parties

For Petitioners : Mr. B. Routray, Sr. Advocate along with M/s. S. Das, S.K. Samal, S.P. Nath & S.D. Routray, Advocates

For Opp. Parties : Mr. S. Jena, Standing Counsel, School & Mass Education Deptt.

In WPC (OAC) No.1956 of 2017

Bijay Kumar Sahoo & Ors. ..... Petitioners

-Versus-

State of Odisha & others ..... Opp. Parties

For Petitioners : M/s. K.P. Mishra, S. Mohapatra, T.P. Tripathy, L.P.

Dwivedy & M. Das, Advocates.

For Opp. Parties : Mr. S. Jena, Standing Counsel, School & Mass Education Deptt.

// 2 //

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI

Date of hearing: 29.09.2021 :: Date of Judgment: 07.10.2021

DR. B.R. SARANGI, J. Of the two writ petitions, as mentioned

above, WPC (OAC) No.1074 of 2017, in which petitioners are

twenty-two in number, has been filed for the following

reliefs:-

                    "i)    Admit the original application,
                    i)     Call for the records,
                    ii)    Issue          appropriate        order/orders,

direction/directions directing the respondents to regularize the services of the applicants from the admitted date of their joining and extend all consequential service benefits including the leave and pensionary benefit along with promotional benefits as per the terms of the provisions of the Pension Rules within a reasonable time to be fixed by this Hon'ble Tribunal."

And WPC (OAC) No.1956 of 2017, in which petitioners are

twelve in number, has been preferred seeking following

reliefs:-

"(i) Direct/order the Respondent No.1 to grant benefit(s) of past service like continuing of service and notional pay fixation to the Applicants taking into account their dates of joining as mentioned in the Order No.XVI-HE- 37/2016 18066/HE, dated 03.07.2016 and/or anti-date the date of regularization from the date of the Order passed in O.A. No.15(C) of 2010;

// 3 //

(i) Pass such other order(s) or issue direction(s) as may be deemed fit and proper in the bona fide interest of justice."

In both the writ petitions, reliefs sought being similar to each

other, they were heard together and are disposed of by this

common judgment.

2. The factual matrix giving rise to filing of both the

cases, in a nutshell, is that the National Policy on Education,

1986 introduced vocational stream at +2 stage to provide

alternative source of income. On 27.07.1988, 31 number of

Higher Secondary Vocational Schools were opened by the

State Government under the centrally sponsored Scheme

"Vocationalisation of Secondary Education" vide GO

No.33291/EYS during the academic session 1988-89. The

staffing pattern of those schools consisted of a Principal in

the junior class-I scale of pay and four vocational teachers

(PGT) in the class-II scale of pay. The State Government

issued a circular on 17.03.1989 vide letter no.13513/NEP

2/89 EYS of Secondary Education for appointment of

qualified PG teacher against vacant post on contract basis

since regular recruitment through OPSC was not possible.

// 4 //

The candidate having educational qualification at par with

that of regular Junior Post Graduate Lecturers were decided

to be appointed in all those 31 colleges. Accordingly,

applications were invited and the petitioners, having requisite

qualification of that of the post of Post Graduate Teacher,

offered their candidature and were selected and engaged in

the vacant posts of Junior Lecturer.

2.1 In the second phase, the State Government opened

150 numbers of Higher Secondary Vocational Schools in the

year 1990-91. On 10.12.1990, the Deputy Director of

Vocational Education, Odisha addressed letter to all the

Principals I/C of Higher Secondary Vocational Schools for

giving appointment of part time resource persons on contract

basis to teach vocational subjects. On 28.01.1991, the

Government decided to separate +2 classes from degree

colleges and to appoint 220 number of Junior Lecturers in

Higher Secondary Vocational Schools vide notification

No.3839 of Education Department. Accordingly, on

01.04.1991, an advertisement was published in local daily

the "Sun Times" by the Directorate of Secondary Education,

Odisha wherein applications were invited from the eligible // 5 //

candidates for the posts of Junior Lecturer in Vocational

Institutions of the State. Creation of teaching and non-

teaching posts for vocational institutions opened under the

centrally sponsored scheme where the salary of the staff of

vocational schools is reimbursed to the extent of 75% by the

Government of India. Therefore, unless the posts were filled

up, the State Government could not claim any

reimbursement. Those posts were held by the petitioners

having requisite qualifications of that of Junior Lecturers.

2.2 A gazette notification bearing No.40779 dated

06.06.1996 was issued by the Government of Orissa in

Department of Higher Education, regarding engagement of

Part Time Resource Person (PTRP) in Government Higher

Secondary Vocational Schools prescribing therein the

educational qualification. On 21.08.1996, another gazette

notification bearing no.58230 was issued regarding

engagement of Full Time Resource Person (FTRP) in

Government Higher Secondary Vocational Schools

prescribing therein the educational qualification.

Accordingly, an advertisement was issued by the Director,

Secondary Education, Odisha in local daily "The Samaj" on // 6 //

13.07.1999 for recruitment of Full Time Resource Persons on

contract basis. Even though petitioners were continuing as

Part Time Resource Persons on contract basis, but their

appointment was never regularized by the opposite parties as

Junior Lecturers, though their services were being utilized

against the vacant posts of Junior Lecturer. Being aggrieved

by such action/ inaction, they approached this Court by

filing OJC No.9392 of 1999 praying therein for regularization

of their service. During pendency of the said writ petition, the

petitioners, after undergoing a rigorous selection process

conducted by the state level selection board with the Director

Vocational Education as Chairperson, and taking into

consideration their past service as part time PG Teachers

continuing on contract basis against the vacant posts of the

Junior Lecturers, were appointed as Full Time Resource

Persons.

2.3 In 2010, this Court transferred OJC No.9392 of

1999 to the Odisha Administrative Tribunal for adjudication,

which was registered as T.A. No.15(C) of 2010. The tribunal,

vide order dated 10.07.2014, disposed of the said T.A.

No.15(C) of 2010 directing the State opposite parties to // 7 //

regularize the services of the petitioners keeping in view the

judgment passed by the tribunal in O.A. No.2399(C) of 2008

and batch disposed of on 13.09.2011 wherein direction was

given to formulate a scheme for regularization of services of

contractual resource persons, according to the resolution

dated 04.11.1996, as lecturers within six months from the

date of receipt of the order. As the judgment of the Odisha

Administrative Tribunal was not implemented, C.P.

No.543(C) of 2014 was filed and when the said C.P. was

pending, the State Government in Higher Education

Department filed compliance affidavit reflecting therein the

regularization of 201 number of Full Time Resource Persons

working in different vocational Junior Colleges re-designated

as Junior Lecturers in the scale of pay of Rs.9300-34800/-

with grade pay of Rs.4600/- w.e.f. the date of issue of the

order i.e. 03.07.2016. In view of such order, the contempt

proceeding was dropped, but the tribunal granted liberty to

the petitioners for claiming any benefits, consequent upon

the order passed, by approaching the legal forum. Hence, the

petitioners approached Odisha Administrative Tribunal by

filing O.A. Nos. 1074 (C) of 2017 and O.A. No. 1956 (C) of // 8 //

2017 claiming regularization of their services from the date of

their initial appointment. But on abolition of the tribunal the

said Original Applications have been transferred to this Court

and registered as above.

3. Mr. B. Routray, learned Senior Counsel appearing

along with Mr. S.K. Samal, learned counsel for the

petitioners in WPC (OAC) No.1074 of 2017 contended that

the petitioners, having requisite qualification for the post of

Junior Lecturers, were initially appointed as Part Time

Resource Persons in the year 1991 and subsequently, they

were appointed as Full Time Resource Persons w.e.f. 2001

and have been working uninterruptedly against the

substantive vacant posts of Junior Lecturer from the date of

their initial appointment. Therefore, they seek regularization

of their services from the date of their initial appointment,

but not from 03.07.2016, the date of passing of the order of

regularization of services. It is contended that the order of

regularization of their services w.e.f. 03.07.2016 is arbitrary,

unreasonable and contrary to the provisions of law.

Therefore, the petitioners seek interference of this Court. It is

further contended that the petitioners, having requisite // 9 //

qualification for the posts of Junior Lecturer, have

discharged their duties as Junior Lecturer against the vacant

posts in Vocational Government Secondary Schools and

rendered continuous service for more than 20 years, which

cannot be wiped out while opposite parties decided to

regularize their services w.e.f. 03.07.2016. That itself is

contrary to the provisions of law.

To substantiate his contentions, reliance is placed

on the judgments of the apex Court in Direct Recruit Class-

II Engineering Officers' Association v. State of

Maharastra, AIR 1990 SC 1607 and Sachin Ambadas

Dawale v. State of Maharashtra (W.P. No.2046 of 2010

disposed of on 19.10.2013 by the Bombay High Court and

confirmed by the apex Court by dismissing SLP (C) No.39014

of 2013 vide order dated 06.01.2015).

4. Mr. K.P. Mishra, learned counsel for the

petitioners in WPC (OAC) No.1956 of 2017 supported the

contentions raised by Mr. B. Routray, learned Senior Counsel

appearing for the petitioners in WPC (OAC) No.1074 of 2017.

He further contended that even though the petitioners were

allowed to continue as Part Time Resource Persons w.e.f.

// 10 //

1991 and thereafter as Full Time Resource Persons from

2001 by paying consolidated remuneration pursuant to

agreement executed between the parties and that contract

itself is opposed to public policy. It is further contended that

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. Even in deciding any

case which may not be covered by authority, Courts have

before them the beacon light of the Preamble to the

Constitution. Lacking precedent, the Court can always be

guided by that light and the principles underlying the

Fundamental Rights and the Directive Principles enshrined

in the Constitution.

To substantiate his contention, he has relied upon

Central Inland Water Transport Corporation Ltd. V.

Tarun Kanti Sengupta, AIR 1986 SC 1571.

5. Per contra, Mr. S. Jena, learned Standing Counsel

appearing for School and Mass Education Department raised

preliminary objection with regard to maintainability of the

writ petition and referring to the relief sought by the // 11 //

petitioners contended that similar prayer was made in the

Original Applications and that having been with the self-

same prayer, the petitioner cannot approach this Court by

filing the present writ petitions. Referring to paragraph-5 of

the counter affidavit, he contended that the petitioners were

initially appointed as Part Time Resource Persons in the year

1990-91 in various trades prevailed at that time in a

centrally sponsored scheme, namely, "Vocationalisation of

Higher Secondary Education" in a consolidated honorarium.

Thereafter, the Government published a resolution to engage

the vocational teachers in the nomenclature as "resource

teacher on full time basis" on a consolidated remuneration of

Rs.3,000/- per month. Therefore, the petitioners were

engaged under the temporary scheme and their post may be

treated as schematic post. By virtue of order dated

14.07.2014 passed by the Tribunal in T.A. No.15(C) of 2010,

when their services were regularized vide order dated

03.07.2016 from the date of issuance of such order in the

scale of pay Rs.9300-34,800/- with grade pay of Rs.4600/-,

the petitioners cannot claim that the benefit should be

extended retrospectively from the date of their initial // 12 //

appointment or as Part Time Resource Persons from 1991 or

from the date they have been continuing as Full Time

Resource Persons from 2001 as they claim that they have

been discharging their duty of Junior Lecturers against

sanctioned posts. Thereby, he contended that the writ

petition has to be dismissed both on the question of

maintainability and on merits.

To substantiate his contention, he has relied upon

State of Rajasthan v. Dayalal, (2011) 2 SCC 429;

Secretary to Government, School Educatin Department,

Chennai v. R. Govindaswamy, (2014) 4 SCC 769; and

State of Tamil Nadu through Secretary to Government,

Commercial Taxes and Registration Department v. A.

Singamuthu, (2017) 4 SCC 113.

6. This Court heard Mr. B.Routray, learned Senior

Counsel appearing along with Mr. S.K. Samal, learned

counsel for the petitioners in WPC (OAC) No.1074 of 2017;

Mr. K.P. Mishra, learned counsel for the petitioners in WPC

(OAC) No.1956 of 2017 and Mr. S. Jena, learned Standing

Counsel for School and Mass Education Department.

Pleadings have been exchanged between the parties and with // 13 //

their consent, both the writ petitions are being disposed of

finally at the stage of admission.

7. On the basis of factual matrix as discussed above,

the only question to be decided by this Court is, whether the

petitioners' services can be regularized from 1991, i.e. the

date of their initial appointment to the post of Part Time

Resource Persons or from the dates they were regularized as

Full Time Resource Persons, as indicated in Annexure-A to

the order impugned dated 03.07.2016 issued in compliance

of the order dated 14.07.2014 passed by the tribunal in T.A.

No.15(C) of 2010 or w.e.f. 03.07.2016?

8. Before effectively answering the above question, it

is of relevance to deal with the preliminary objection raised

by Mr. S. Jena, learned Standing Counsel for School and

Mass Education Department with regard to maintainability of

the writ petition, relying upon the order dated 10.07.2014

passed by the Odisha Administrative Tribunal in T.A.

No.15(C) of 2010, wherein prayer quoted in paragraph-2

reads thus:

"The applicants have come up with this T.A praying for regularization of their services as FTRPs (to be // 14 //

re-designated as Jr. Lecturers) in view of the long period of service rendered by them as contractual employees since 1996."

Since the petitioners had filed T.A. No.15(C) of 2010 praying

for regularization of services as Full Time Resource Persons

(to be re-designated as Jr. Lecturers) in view of long period of

service rendered by them as contractual employees since

1996, it is contended that similar prayer has been made in

the present writ petitions, for which they are not

maintainable. But on careful perusal of the prayer made in

both the writ petitions, this Court finds that the same has

been couched in different manner, that is to say the

petitioners seek for regularization of services from the

admitted dates of their joining and to extend all

consequential benefits including leave and pensionary

benefits along with promotional benefits as per the terms of

the provisions of the Pension Rules within a reasonable time

to be fixed by the court. Thereby, the relief sought in these

cases cannot be treated as same so as to render the writ

petitions as not maintainable. Otherwise also, after abolition

of the tribunal, these two matters have been transferred to

this Court for adjudication under Article 226 of the // 15 //

Constitution of India, but originally they were registered as

Original Applications before the tribunal under Section 19 of

the Administrative Tribunal Act, 1985, which no more

remains. Now, they are to be construed as applications filed

under Article 226 of the Constitution of India. If that be so,

the objection with regard to maintainability of the writ

petitions raised by learned Standing Counsel for School and

Mass Education Department on the ground of self-same relief

cannot sustain in the eye of law because this Court can

mould the relief sought by the petitioners.

9. "Moulding of relief" principle was recognized by the

Supreme Court in Pasupuleti Venkateswarlu v. The Motor

& General Traders, AIR 1975 SC 1709. It was observed

therein that though the right to relief must be judged to exist

as on the date a suitor institutes the legal proceeding, the

principle that procedure is the handmaid and not the

mistress of the judicial process is also to be noted. Justice

VR Krishna Iyer observed:

"If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the // 16 //

rules of procedure, where no specific provision or fair play is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceeding provided the rules of fairness to both sides are scrupulously obeyed.

10. In Ramesh Kumar v. Kesho Ram, AIR 1992 SC

700, the Supreme Court again following this principle, i.e.

"moulding of relief", observed as follows:

"6. The normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. But this is subject to an exception. Wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief."

11. In Sheshambal (dead) through LRs v. Chelur

Corporation Chelur Building, (2010) 3 SCC 470, the apex

Court laid down the conditions in which the relief can be

moulded:

// 17 //

"(i) that the relief, as claimed originally has, by reason of subsequent events, become inappropriate or cannot be granted;

(ii) that taking note of such subsequent event or changed circumstances would shorten litigation and enable complete justice being done to the parties; and

(iii) that such subsequent event is brought to the notice of the court promptly and in accordance with the rules of procedural law so that the opposite party is not taken by surprise."

12. In Samir Narain Bhojwani v. Aurora Properties

and Investments, (2018) 17 SCC 203 the apex Court

observed that principle of moulding of relief could at best be

resorted to at the time of consideration of final relief in the

main suit and not at an interlocutory stage.

13. In Premalata Panda v. State of Odisha, 2015

(II) OLR 214, relying upon State of Rajasthan v. M/s.

Hindustan Sugar Mills Ltd., AIR 1988 SC 1621 : (1988) 3

SCC 449 where the apex Court held that the High Court

which was exercising high prerogative jurisdiction under

Article 226 could have moulded the relief in a just and fair

manner as required by the demands of the situation, this

Court, in exercise of such power under Article 226 of the

Constitution of India even though no specific prayer was // 18 //

made in the writ petition, taking into consideration the facts

and circumstances of the case, was inclined to mould the

relief and passed order/direction as deemed fit and proper as

prayed for by the learned counsel for the petitioner in the

writ petition.

14. In view of the law laid down by the apex Court, so

far as "moulding of relief" is concerned, this Court is of the

considered view that even if there is no such specific prayer

made in the writ application, this Court can grant such relief,

as has been sought before this Court in course of hearing,

even at the final stage by "moulding the relief".

This Court has also moulded the relief in Ganesh

Chandra Behera v. Berhampur University, 2020 (I) OLR 5.

15. In view of such position, the preliminary question

raised with regard to maintainability of the writ petitions by

the learned Standing Counsel for School and Mass Education

Department is being negatived and is answered accordingly.

16. Now, answering to the core question involved in

these writ petitions, it is admitted by the learned Standing

Counsel for School and Mass Education Department, // 19 //

referring to paragraph-5 of the counter affidavit, that initial

appointment of the petitioners as Part Time Resource

Persons was made in the year 1991 in various trades

prevailed at the relevant point of time in a centrally

sponsored scheme, namely, "Vocationalisation of Higher

Secondary Education" in a consolidated honouraruim.

Thereafter, the Government published a resolution to engage

the vocational teachers in the nomenclature as "resource

teacher on full time basis" in a consolidated remuneration of

Rs.3,000/- per month, pursuant to which the petitioners

were engaged as Full Time Resource Persons by following due

procedure of selection in the year 2001 and subsequent

thereto they started discharging their duties and

responsibilities of Junior Lecturers.

17. So far as claim made by the petitioners, that

regularization of their services should relate back to the date

of their initial engagement as Part Time Resource Persons

from 1991, cannot sustain in the eye of law because part

time engagement cannot be construed to be an engagement

to discharge the duty of a particular post. More so, Part Time

Resource Persons were engaged for a particular period and // 20 //

particular nature of duty to be discharged by them.

Therefore, they can stand apart from the persons, who are

discharging duty as Full Time Resource Persons. But,

pursuant to gazette notification issued on 21.08.1996, by

following regular process of advertisement, if they were

engaged as Full Time Resource Persons on contract basis to

discharge the duties and responsibilities against regular

posts of Junior Lecturers and their services have been

utilized against the vacant posts, they cannot be denied the

benefits of regularization of their services from their initial

appointment as Full Time Resource Persons.

18. Mr. S. Jena, learned Standing Counsel for School

and Mass Education Department has placed much reliance

on paragraph-12 (iv) and (v) of Daya Lal (supra), which are

extracted below:

"12. xxx xxx xxx

(iv) Part-time employees are not entitled to seek regularization as they are not working against any sanctioned posts. There cannot be a direction for absorption, regularization or permanent conti8nuance of part-time temporary employees.

(v) Part-time temporary employees in government- run institutions cannot claim parity in salary with regular employees of the Government on the principle of equal pay for equal work. Nor can // 21 //

employees in private employment, even if serving full time, seek parity in salary with government employees. The right to claim a particular salary against the State must arise under a contract or under a statute."

19. In R. Govindaswamy (supra), the apex Court in

paragraph-7 observed as follows:

7. In Union of India v. A.S. Pillai, this Court dealt with the issue of regularization of part-time employees and the Court refused the relief on the ground that part- timers are free to get themselves engaged elsewhere and they are not restrained from working elsewhere when they are not working for the authority/employer. Being the part-time employees, they are not subject to service rules or other regulations which govern and control the regularly appointed staff of the department. Therefore, the question of giving them equal pay for equal work or considering their case for regularization would not arise.

In paragraph-8 the apex Court referred to Daya Lal (supra)

and in paragraph-9 held as follows:

"9. The present appeals are squarely covered by Clauses (ii), (iv) and (v) of the aforesaid judgment in Daya Lal case. Therefore, the appeals are allowed. However, in light of the facts and circumstances of the case as Shri P.P. Rao, learned Senior Counsel has submitted that the appellant has already implemented the impugned judgments and does not want to disturb the services of the respondents, the services of the respondents which stood regularized should not be affected."

20. In A. Singamuthu (supra), the apex Court in

paragraph-16 referred to Daya Lal (supra) and held that

Part Time Lecturers are not entitled to seek regularization, as // 22 //

they are not working against any sanctioned posts and they

cannot be directed for absorption, regularization or

permanent continuance of part-time temporary employees. It

is further held that part-time temporary employees in

government-run institutions cannot claim parity in salary

with regular employees of the Government on the principle of

equal pay for equal work. Nor can employees in private

employment, even if serving full-time, seek parity in salary

with government employees. The right to claim a particular

salary against the State must arise under a contract or under

a statute.

21. In view of law laid down by the apex Court, this

Court holds that the claim of the petitioners, that

regularization of their services should relate back to the date

when they were engaged as Part Time Resource Persons, i.e.,

from the year 1991, cannot be granted.

22. In Sachin Ambadas Dawale (supra), the Bombay

High Court in paragraphs-18 and 19, taking into

consideration the facts of that case, observed as follows:

"18. Xxxxx The Lecturers who are appointed in the Private Polytechnic Institutions after selection // 23 //

through the School Committee are appointed on contractual basis as "Shikshan Sevak" for the period of three years as per the policy of the Government of Maharashtra incorporated in the resolution dated 27th April, 2000. It is not in dispute that the selection process through which the petitioners are selected is much less stringent than the selection process of the 38 wp2046.10 Private Polytechnic. We see no reason as to why the petitioners, who are otherwise eligible and qualified for the posts and who are selected by a duly constituted Selection Committee appointed by the Government of Maharashtra and who are appointed in sanction posts after the issuance of advertisement and following regular procedure of selection should not be treated at par with their counterparts in the Private Polytechnic Institutions.

We are of the view that the petitioners cannot be discriminated vis-a-vis their counter parts working in the Private Polytechnic Institutions. We are conscious that the Lecturers working in the Government Institutions form a different class than the Lecturers working in the Private Institutions. However, when all other service conditions are similar, we are of the view that the petitioners are also entitled for the same benefits as their counterparts working in the Private Polytechnic Institutions are entitled as far as the conferment of regularization and permanency are concerned.

19. One more fact needs to be taken into consideration is that even according to the respondent-State there are more than 5000 teaching posts which are still vacant and the advertisement issued by the MPSC is only 39 wp2046.10 for 400 posts. It can, thus, be clearly seen that even after the candidates who would be selected through the selection process conducted by the MPSC are available, more than 4500 posts will be vacant. It is, therefore, clear that the petitioners' absorption would in no way affect the candidates who would now be selected through the MPSC. It is, thus, clear that the petitioners' continuation in service would not adversely affect the fundamental right guaranteed under Article 16 to the citizens.

// 24 //

We are of the considered view that the respondent- State having extracted the work from the petitioners for years together, the petitioners cannot be deprived of the right of regular employment particularly when their entry can neither be termed as "illegal" nor "back door".

Having so observed, in paragraph-22 of the said case, the

Bombay High Court issued following directions:-

"22. The respondents are directed to regularize the services of such of the petitioners and confer permanency on such petitioners who have completed 40 wp2046.10 three years' service with technical breaks. The respondents shall absorb the petitioners within a period of six weeks. Needless to state that the petitioners who are in continuous employment till 15.10.2013 shall be continued in service as regular employees. However, in the facts and circumstances of the case, we direct that the petitioners shall be entitled to regular salary from 1st November, 2013 and would not be entitled to claim any monetary benefits for the past services rendered by them in spite of their regularization. Needless to state that since the petitioners' services are regularized, they shall be entitled to the continuity in service for all other purposes except monetary purposes from the date of their first appointment."

Against the said judgment of the Bombay High Court, the

State of Maharashtra preferred SLP (C) No.39014 of 2013

and the apex Court vide order dated 06.01.2015 dismissed

the said SLP. Thereby, the order passed by the Bombay High

Court has been confirmed.

// 25 //

23. If the factual matrix of the aforementioned

judgment is taken into consideration, it is squarely

applicable to the present case. There is no dispute that the

petitioners were working as Full Time Resource Persons by

following a due process of selection pursuant to

advertisement, but they were paid a consolidated

remuneration on contract basis and put into service against

regular vacancy of Junior Lecturers. Instead of giving them

regular appointment, a camouflaged approach has been

made allowing the petitioners to discharge their duty with a

consolidated amount on the basis of contract, that itself

opposes to public policy.

24. Mr. B. Routray, learned Senior Advocate appearing

for the petitioners in WPC (OAC) No. 1074 of 2017 fairly

states that he has relied upon the judgment of the apex

Court in the case of Direct Recruit Class-II Engineering

Officers' Association (supra) has no application to the

present context, as the said case relates to promotions of

direct recruits vis-à-vis promotees.

25. Admittedly the Contract Act does not define the

expression "public policy" or "opposed to public policy". From // 26 //

the very nature of things, the expression "public policy",

"opposed to public policy", or "contrary to public policy" are

incapable of precise definition. Public Policy, however, is not

the policy of a particular Government. It connotes some

matter which concerns the public good and the public

interest. The concept of what is for the public good or in the

public interest or what would be injurious or harmful to the

public good or the public interest has varied from time to

time. Therefore, when the petitioners were engaged as Full

Time Resource Persons against sanctioned post of Junior

Lecturers with paltry consolidated contractual amount, that

itself amounts to exploitation and opposed to public policy.

26. In Central Inland Water Transport Corporation

Ltd. (supra), the apex Court in paragraph-90 observed as

follows:

"90. 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 // 27 //

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 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, 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 // 28 //

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 the aforementioned paragraph, though the apex Court

dealt with the issue concerning to the fact of that case, but

taking the present case into consideration and types of

contract which have been forced to utilize against the

petitioners by allowing them to join as Full Time Resource

Persons to discharge the duty against the sanctioned posts of

Junior Lecturers, which is unfair, unreasonable and shocks

the conscience of this Court and as such, they are opposed to

public policy and require to be adjudged void.

27. In view of the aforesaid facts and circumstances,

this Court directs the opposite parties to regularize the

services of the petitioners from the date of their joining as