JUDGMENT 1. - The petitioner has filed this writ petition challenging the conditions contained in the letter which has been treated as an offer of appointment. He has also challenged the termination of his service by order dated 24.4.91. He has prayed that the respondents be directed to treat the petitioner as regularly appointed Lower Division Clerk. They may also be directed to give him all consequential benefits. 2. An advertisement dated 15.7.90 was issued by the Principal of Jawahar Navodaya Vidhyalaya, Chhan, District Tonk for making recruitment on one post of Lower Division Clerk. The vacancy was reserved for the members of Scheduled Tribes. Being a member of Scheduled Tribe, the petitioner submitted his application. According to the petitioner in all 18 candidates had submitted their applications. All of them were called for type test. The type-test was followed by interview which was taken by a Selection Committee on 20.8.90. In all 12 candidates appeared for interview before the Selection Committee. The Selection Committee prepared a panel of 3 persons. The name of the petitioner was placed at serial No.2 in the panel. Shri Raja Ram Meena who was at serial No.1 in the panel was offered appointment on the post of Lower Division Clerk. He however did not join. Thereafter the Principal of Jawahar Navodaya Vidhyalaya, Chhan vide his letter dated 8.1.91 offered appointment to the petitioner on the post of Lower Division Clerk in the pay-scale 950-1500. In the letter containing offer of appointment it was mentioned that the appointment will be on ad hoc basis upto 30th April 1991. He was called upon to report for duty on or before 18.1.91. The petitioner joined his duties on 14.1.91. On 24.4.91, an office order was issued by the Principal of the Vidhyalaya asking the petitioner to hand over the charge before 30.4.91 in accordance with the terms and conditions of appointment. 3. In the writ petition the petitioner has claimed that his appointment had preceded a regular selection and therefore the mere use of the word 'ad hoc' in the letter of appointment on the time limit fixed in the letter of appointment cannot be treated as conclusive. Shri Raja Ram Meena was offered a regular appointment on the basis of selection. He however did not join. Shri Raja Ram Meena was offered a regular appointment on the basis of selection. He however did not join. When Shri Raja Ram Meena had been offered regular appointment, there was no occasion or justification for the respondent No. 3 to incorporate the word 'ad hoc' in the offer of appointment given to the petitioner or to the fix the term of appointment upto 30th April, 1991. The petitioner had to join in pursuance of Annexure- 2, because he was not in a position to enter into a negotiation in regard to terms and conditions of employment. He was in dire need of job and having been selected by a duly constituted selection committee he could not take chance of negotiating the terms and conditions even before entering the service. 4. The case of the respondents is that in all 12 candidates had applied to the post of Lower Division Clerk. The respondents have admitted that a selection was held. Candidates were interviewed. Shri Raja Ram Meena secured 79% marks. The petitioner secured 49% marks and Shri Om Prakash secured 47.9% marks. Shri Raja Ram Meena was offered a regular appointment because approval was obtained from Navodaya Vidhyalaya Samiti, Jaipur. He however did not join the service. No approval regarding the petitioner was obtained from Regional Office of Navodaya Vidhyalaya Samiti at Jaipur. However for smooth running of the Vidhyalaya, the petitioner was offered ad hoc appointment for a limited period. The petitioner knew about the condition contained in the offer of appointment. He knowingly accepted the same. He is therefore estopped from questioning the terms and conditions contained in the offer of his appointment. The respondents have pleaded that the appointing authority for Lower Division Clerk is the Dy. Director of Regional Office. Annexure R-3 to R-6 have been placed on record to show the procedure of selection for appointment the powers of various authorities. According to the respondents the service of the petitioner has been terminated in accordance with the conditions contained in the offer given to the petitioner. He had no right to continue in service beyond 30.4.91. 5. A preliminary objection had been raised by the respondents regarding the maintainability of the writ petition on the ground of that Navodaya Vidhyalaya Samiti does not come within the scope of the term 'State' as used under Article 12 of the Constitution of India. He had no right to continue in service beyond 30.4.91. 5. A preliminary objection had been raised by the respondents regarding the maintainability of the writ petition on the ground of that Navodaya Vidhyalaya Samiti does not come within the scope of the term 'State' as used under Article 12 of the Constitution of India. This objection was considered by me alongwith similar objection regarding the maintainability of the writ petition against the Kendriya Vidhyalaya Sangathan. By a detailed order dated April 3, 1992 passed in this writ petition and three other writ petitions, I held that Kendriya Vidhyalaya Sangathan and Navodaya Vidhyalya Samitis are instrumentalities of the State and they are covered by the terms of 'State' under Article 12 of the Constitution of India. 6. The question which now requires consideration and adjudication is as to whether it was open to the respondents to incorporate the term 'ad hoc' in the offer of appointment given to the petitioner and as to whether there was any justification for giving fixed term appointment to the petitioner. An anciliary question which requires determination are as to whether more incorporation of the word 'ad hoc' or mere indication of a specified term in the order of appointment can deprive the petitioner of his right of being treated as regular appointee. 7. The facts which have come on record in this case unmistakably show that an advertisement was issued by the Principal of Jawahar Navodaya Vidyalaya, Chhan district Tonk for the purpose of making regular recruitment on the post of Lower Division Clerk from amongst the members of Scheduled Tribes. A Selection Committee was constituted. The Selection Committee subjected the candidates to a type-test and then interview. It then prepared panel of 3 candidates in the order of merit. Admittedly Shri Raja Ram Meena who was at Serial No. 1 in the panel was given a regular appointment. Shri Raja Ram Meena did not join and therefore offer of appointment was given to the petitioner. Once Raja Ram Meena had been given a regular appointment, it can safely be inferred that the vacancy against which offer of appointment came to be given subsequently to the petitioner vide letter dated 8.1.91 is clear vacancy. It is a vacancy free from any encumbrance. The only difference pointed out by respondents in the case of the petitioner and Sh. It is a vacancy free from any encumbrance. The only difference pointed out by respondents in the case of the petitioner and Sh. Raja Ram Meena is that while in the case of Raja Ram Meena an approval of the Deputy Director of Regional Officer had been secured, such approval had not been secured in the case of the petitioner. That may be so, but so far as the petitioner is concerned, all that he could do for getting an appointment was to have performed well at the time of selection and to have satisfied the members of the selection committee about his suitability. This he did. Whether order was to be issued by a particular officer or with the approval of a particular officer was not and could not have been controlled or regulated by the petitioner. This exercise was to be undertaken by the respondents. It was a matter concerning their internal affair and the petitioner had no control whatsoever in that regard. The petitioner was not in a position to have secured approval of any particular officer. Therefore the mere effect that the offer of appointment was given to the petitioner without the approval of the Deputy Director, Regional Officer would be of little consequence. When a clear vacancy existed in the cadre of a Lower Division Clerk regular selection has been made, there remains little justification for giving two different offers of appointment to the two selected candidates. As noted hereinabove, Shri Raja Ram Meena was offered a regular appointment. This must have been done after approval of selection by the Deputy Director, Regional Office, Jaipur. If he had availed the offer, he would have been treated as a substantive Lower Division Clerk in the service of respondents. Sh. Raja Ram Meena did not join and therefore the vacancy became available for appointment of the petitioner. No change had taken place so far as merit of the petitioner is concerned between the date of selection made by the Selection Committee and the date of availability of vacancy. Thus the action of the respondents in not giving regular appointment to the petitioner despite his selection and despite the availability of a clear vacancy is per se arbitrary and capricious. 8. In Dr. Uma Kant v. Dr. Thus the action of the respondents in not giving regular appointment to the petitioner despite his selection and despite the availability of a clear vacancy is per se arbitrary and capricious. 8. In Dr. Uma Kant v. Dr. Bhikha Lal Jain (1992(1) Judgments Today 105): [1991(3) SCT 256], their Lordships of the Supreme Court reversed a decision of learned Single Judge as well as of a Division Bench of this Court and held that once a candidate has been selected then even if his name is placed in reserve list he can be appointed against the vacancy which become available at a subsequent point of time on account of retirement of previous appointee. The case of the petitioner stands on a better footing. In the present case, the vacancy is not becoming available at a subsequent point of time on account of retirement or resignation by an existing holder of the post but on account of non-joining of Shri Raja Ram Meena who was at number 1 in the merit list. Therefore I find little jurisdiction for the respondents to have restricted the appointment of the petitioner only upto 30.4.91. I am clearly of the opinion that if any formality was required to be undergone of sending the letter containing offer of appointment of the petitioner to the Deputy Director, Regional Office, Jaipur for approval, it was for the respondents to have taken necessary steps for that purpose. The petitioner cannot be penalised for non-compliance of the requirement of the Circular issued by the respondents themselves. 9. The argument of the learned counsel for the petitioner is that the petitioner is to be treated to have been substantively appointed on the post of Lower Division Clerk and the use of the word ad hoc or giving of a fixed term appointment cannot affect the status of the petitioner, also deserves to be accepted. The appointment of the petitioner was admittedly made on the basis of his selection made by duly constituted Selection Committee. He was appointed against a clear vacant post. 10. In Baleshwar Dass v. State of U.P. ( AIR 1981 Supreme Court 41). The appointment of the petitioner was admittedly made on the basis of his selection made by duly constituted Selection Committee. He was appointed against a clear vacant post. 10. In Baleshwar Dass v. State of U.P. ( AIR 1981 Supreme Court 41). The Supreme Court has dealt with the question as to when an appointment can be said to have been made in substantive capacity and it has been observed as under: "To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation." "If the appointment is to a post and the capacity in which the appointment is made of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been prescribed and has been approved, one may well say that the post was held by the incumbent in a substantive capacity." 11. In State of U.P. v. M.J. Siddiqui ( AIR 1980 SC 1098 ) the Supreme Court held that a person may be appointed in substantive capacity on a permanent as well as a temporary post. In that case the Supreme Court held that the appointment on a temporary post was in a substantive capacity after taking into consideration the fact that the said appointment had been made on the basis of an advertisement inviting applications and the said appointment had been made on the recommendation of the Public Service Commission. The Supreme Court has observed: "In our opinion, reading the advertisement and the manner and mode of the appointment of the appellants, it must be held that they were appointed in a substantive capacity to temporary posts which according to the advertisement were likely to continue. There does not appear to be any magical formula or a special charm in the word 'substantive'. The mere use of the term 'appointment' in a temporary vacancy by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. The mere use of the term 'appointment' in a temporary vacancy by itself would not conclude the matter or lead to the irresistible inference that the appointment was not made in a substantive capacity because even a substantive appointment could be made to a purely temporary vacancy. In order, therefore, to determine nature of the appointment we have to look to the hear and substance of the matter, the surrounding circumstances, the mode, the manner and the terms of appointment and other relevant factors. In the instant case, we cannot ignore the advertisement which forms the pivotal basis of the direct recruitment in pursuance of which the appellants were appointed. Another circumstance that supports our view is that the appellants were not appointed merely on an ad hoc basis but through the Public Service Commission and in a regular way." 12. The same view has been expressed by Supreme Court in PD Agrawal v. State of U.P. ( AIR 1987 Supreme Court 1676) as well as in Ashok Gulati v. B.S. Jain ( AIR 1987 Supreme Court 424). 13. The aforesaid decisions show that for the purpose of determining whether a particular appointment was in a substantive capacity, the court has to look into the substance of the matter i.e., the mode of selection, the manner of selection and the nature of vacancy. The fact that the appointment was made after issuing an advertisement calling for applications from eligible candidates and the fact that a select list/merit list was prepared on the recommendations of a duly constituted Selection Committee are indicative of the appointment being a regular and substantive appointment and not merely 'ad hoc'. 14. In the present case it has clearly been established that a regular selection had been made by issue of advertisement inviting of applications and consideration of the candidature of all eligible persons by a duly constituted Selection Committee. It must therefore be held that the appointment of the petitioner on the post of Lower Division Clerk was in the nature of regular and substantive appointment and the mere use of the word 'ad hoc' or the mere fact that term of appointment was specified in annexure-2 will make no difference. 15. It must therefore be held that the appointment of the petitioner on the post of Lower Division Clerk was in the nature of regular and substantive appointment and the mere use of the word 'ad hoc' or the mere fact that term of appointment was specified in annexure-2 will make no difference. 15. It cannot be ignored that in our country the doctrine of Lassaize Faire has not been accepted and the employer does not have an absolute freedom in the matter of laying down the terms and conditions of employment. Even if the employer settles terms and conditions of employment which are unfair, arbitrary or opposed to public policy, the same are not binding on the employee. Such terms and conditions cannot be enforced against the employee. The employee can seek a declaration of invalidity against such terms and conditions on the ground that the conditions are arbitrary and unreasonable. In Central Inland Water Transport Corporation v. Brojo Nath Ganguli, ( 1986(3) S.C.C. 156 ) their Lordships of the Supreme Court gave a new dimension to the powers of the Court to strike down the terms and conditions of a contract of employment on the ground that the same is unconscionable or unfair. After making a lucid analysis of Articles 14, 39(a) and 41 of the Constitution of India and Section 23 of the Contract Act, 1872, the Supreme Court held: "An unconscionable bargain or contract is one which is irreconcilable with what is right or reasonable or the terms of which are so unfair and unreasonable that they shock the conscience of the Court. The doctrine of distributive justice is another jurisprudential concept which has affected the law of contracts. According to this doctrine, distributive fairness and justice in the possession of wealth and property can be achieved not only by taxation but also by regulatory control of private and contractual transactions even though this might involve some sacrifice of individual liberty. This doctrine has found constitutional recognition through the Preamble and Articles 38 and 39. The test of reasonableness or fairness as a clause in a contract where there is inequality of bargaining power is another theory recognised in the sphere of law of contracts. This doctrine has found constitutional recognition through the Preamble and Articles 38 and 39. The test of reasonableness or fairness as a clause in a contract where there is inequality of bargaining power is another theory recognised in the sphere of law of contracts. The Courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or a clause in a contract entered into between parties who are not equal in bargaining power. Lord Diplock in A. Schroeder Music Publishing Co. case has given the test of fairness thus: 'Whether the restrictions are both reasonably necessary for the protection of the legitimate interests of the promisee and commensurate with the benefits secured to the promiser under the contract. For the purpose of this test all the provisions of the contract must be taken into consideration.' This 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. 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. 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 or where the inequality is the result of circumstances, whether of the creation of the parties or not or where 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 or 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. 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. However, these are only illustrations as it is difficult to give an exhaustive list of all bargains of this type. The contracts of the types to which the principle formulated above applies are not contracts which are tainted with illegality but are contracts which contain terms which are so unfair and unreasonable that they shock the conscience of the court. In the vast majority of cases such contracts are entered into by the weaker party under pressure of circumstances, generally economic, which results in inequality of bargaining power. Such contracts will not fall within the four corners of the definition of "undue influence" given in Section 16(1) of the Contract Act, even though at times they are between parties one of whom holds a real or apparent authority over the other. Contracts is prescribed or standard forms or which embody a set of rules as part of the contract or entered into by the party with superior bargaining power it a large number of persons who have far less bargaining power or no bargaining power at all. Such contracts which affect a large number of persons or a group or groups of persons, if they are unconscionable, unfair and unreasonable, are injurious to the public interest. Such a contract or its clause should be adjudged void under Section 23 of the Contract Act on ground of being opposed to public policy." 16. In view of this pronouncement of Supreme Court, there can be no doubt that if the court finds that the terms and conditions contained in the letter of appointment or the offer of appointment, are wholly arbitrary and unreasonable, the same can be declared as invalid. In the present case I have already held that the nature of appointment of the petitioner has to be treated regular and substantive. Therefore the use of the word 'ad hoc' and fixing of a term of employment upto 30.4.91 are inconsequential. Logically it must be held that these conditions are invalid and are not binding on the petitioner. 17. The argument of the respondents about estoppel is being mentioned by me only to be rejected. Therefore the use of the word 'ad hoc' and fixing of a term of employment upto 30.4.91 are inconsequential. Logically it must be held that these conditions are invalid and are not binding on the petitioner. 17. The argument of the respondents about estoppel is being mentioned by me only to be rejected. An employee who is offered employment after selection has no option but to accept the employment on whatever conditions it is offered. The employee cannot possibly enter into a bargain about the terms and conditions of employment, even before entering the service. If he does so there is every likelihood of his appointment being rendered still born. Therefore the mere fact that the employee accepts the terms of the contract embodied in the letter of appointment, he cannot be denied remedy by the court. A similar argument was advanced before Hon'ble Supreme Court in Government Branch Press v. D.B. Belliappa ( 1979(1) S.C.C. 477 ). Rejecting such argument their Lordships observed: "Another facet of Mr. Veerappa's contention is that the respondent had voluntarily entered into a contract of service on the terms of employment offered to him. One of the terms of that contract, embodied in the letter of his appointment is that his service was purely temporary and was liable to termination at the will and pleasure of appointing authority, without reason and without notice. Having willingly accepted the employment on terms offered to him, the respondent cannot complain against the impugned action taken in accordance with those mutually agreed terms. The argument is wholly misconceived. It is borrowed from the archaic common law concept that employment was a matter between the master and servant only. In the first place, this rule in its original absolute form is not applicable to Government servants. Secondly, even with regard to private employment, much of it has passed into the fossils of time. "This rule held the field at the time when master and servant were taken more literally than they are now and when, as in early Roman Law, the rights of the servant, like the rights of any other member of the household, were not his own, but those of his pater families." The overtones of this ancient doctrine are discernible in the Anglo-American jurisprudence of the 18th century and the first half of the 20th century, which rationalised the employer's absolute right to discharge the employee. "Such a philosophy", as pointed out by K.K Mathew, J. (vide his treatise: "Democracy, Equality and Freedom, page 326)," of the employer's dominion over his employee may have been in tune with the rustic simplicity of bygone days. But that philosophy is incompatible with these days of large, impersonal, corporate employers'. To bring it in tune with vastly changed and changing socio-economic conditions and mores of the day, much of this old, antiquated and unjust doctrine has been eroded by judicial decisions and legislation, particularly in its application to persons in public employment, to whom the Constitutional protection of Articles 14, 15, 16 and 311 is available. The arguments is therefore overruled." 18. On the basis of above discussion the writ petition is allowed. It is declared that the use of the word 'ad hoc' or fixing the term of appointment upto 30th April 1991 in annexure-2 were invalid. The petitioner is declared to be regularly appointed as Lower Division Clerk. The termination of service of the petitioner is declared as illegal and it is hereby quashed. The petitioner shall be given all consequential benefits to which he becomes entitles as a result of quashing of order of termination of service except the benefit of actual pay between the date of termination of service and the date of this order. However this entire period shall be treated as spent on duty for all other purposes. Costs made easy.Petition allowed. *******