JUDGMENT 1. In the advertisement notice whereby posted of demonstrators were notified, it was indicated that this would be a tenure pose and this tenure would be determinable in terms of condition No. 1 mentioned in the said notice. This advertisement is dated 23rd June 87. The prescription of this tenure is the subject matter of challenge in this petition. For facility of reference, the condition No. (i) in the aforesaid advertisement notification is being reproduced below: "Tenure appointment shall be subject to the work and conduct of the Demonstrator in the college / hospital remaining satisfactory subjects for a period of five years to till such time the vacancy continues to exist, whichever be earlier. In the case of misconduct or negligence in duty, the tenure appointment of doctors shall be terminated without any notice. 2. The further fact is that sanction was accorded to the appointment of the petitioner as demonstrator in the department of Anatomy, Medical College, Jammu, on adhoc basis for the period of six months or till selection is made by the competent authority. Which ever event was to happen earlier was to operate. This order was issued on 21st July 87. This was been placed on the record as annexure P.2. Thereafter, the appointment order was issued in favour of the petitioner. This is dated 20th Oct 87. This order has been placed on the file an annexure P.3. The relevant paragraph and terms and conditions are noticed below: "As recommended by the selection committee, sanction is accorded to the appointment of doctors as Demonstrators in Medical college Jammu and posted at places shown against each : 2. Miss Neena Gupta - Anatomy -Medical College Jammu (subject to further relaxation after expiry of six months). ... The appointment of the above doctors as demonstrators will be subject to the conditions as laid down in the Govern order No. 121-ME of 1987 dated 15.04.1987." Yet another order was issued on 23rd Sept. 88. Petitioner came to be appointed as Demonstrator in the grade of Rs. 1900-4000. This order is relevant and is being reproduced below: "Sanction is hereby accorded to the appointment of Dr. Neena Gupta as Demonstrator (Rs.1900-4000) in the Department of Anatomy, Medical College, Jammu. 88. Petitioner came to be appointed as Demonstrator in the grade of Rs. 1900-4000. This order is relevant and is being reproduced below: "Sanction is hereby accorded to the appointment of Dr. Neena Gupta as Demonstrator (Rs.1900-4000) in the Department of Anatomy, Medical College, Jammu. The appointment of the Doctor will be subject to be the following conditions: i. Tenure appointment shall be subject to the work and conduct of the Registrar in the College/ hospital remaining satisfactory subsist for a period of two years except as otherwise indicated in the event of any vacancy ceasing to exist in any discipline will be reverted to the parent service. In case of misconduct or negligence in duties the tenure appointment shall be terminable without notice. ii. The doctor shall be whole timer, iii. The doctor shall be required to stay, in the college hospital premises if residential accommodation is available, iv. The doctor shall be liable to be. transferred from the college even during the period of registrar ship if their services are required in the public interest elsewhere. 3. The petitioner felt aggrieved of inclusion of condition (i) in the order dated 23rd Sept 88. She filed a writ petition in this court. This bears No. SWP 750/90. In the above writ petition, a limited argument was raised. The grievance of the petitioner was that the limited of the tenure of the petitioner to the years instead of five years is not apt., This contention of the petitioner found favour with this court. The writ petition of the petitioner was allowed. The order passed by the respondents indicating that the tenure of the petitioner would be two years was held to be not sustainable. The net result was that the petitioner was allowed to continue for a period of five years. This is apparent from the averments made in para 16 of the petition. Petitioner further submits that on 8th April 94, the posts of Demonstrators were again advertised. This notification has been placed on the record as Annexure P. 10. Nothing tangible, however, came out of this advertisement notice and no appointments were made. Somehow or the other, the petitioner felt that her service tenure is likely to be jeopardized. This apprehension of her assumed concrete shape when another advertisement notice was issued at 1st Feb. 96. This has led the petitioner to approach this court. Nothing tangible, however, came out of this advertisement notice and no appointments were made. Somehow or the other, the petitioner felt that her service tenure is likely to be jeopardized. This apprehension of her assumed concrete shape when another advertisement notice was issued at 1st Feb. 96. This has led the petitioner to approach this court. It is submitted: i. That the condition by which the tenure of the petitioner was limited to five years is not a accordance with the law: ii. That the need is permanent, and therefore, the appointment of a person on tenure basis is not apt; iii. That the respondent did not bring an end to the tenure of the petitioner even after the period of five years was over. 4. It is submitted that she was given regular compulsory Provident fund No. It is submitted that for all intents and purposes, she was treated as a regular employee. It is accordingly submitted that her service tenure cannot be now brought to an end and she be allowed to continue on the post of Demonstrator. 5. Respondents have filed objections. 6. The stand taken by them is that in the earlier writ petition i.e. SWP No. 750/90, the petitioner admitted that she was appointed for the period of five years. It is submitted that now the petitioner cannot take a contrary stand. It is further submitted that the petitioner was appointed on tenure basis and after the end of her tenure, she has to demit the office. Her status as per the respondent has all along been that of a tenure holder as she was never appointed on substantive basis It is thus submitted that the question of petitioners continuing in service does not arise. 7. The question which is required to be gone into is as to whether the petitioner can seek a writ of mandamus that she be allowed to continue even though her tenure was fixed for two years and which tenure came to be enlarged in pursuance of an order passed by this court in an early writ petition preferred by the petitioner referred to above. 8. Before examining this aspect of the matter, it would be apt to notice para 19 of the petition and the reply filed to this para by the respondents. 8. Before examining this aspect of the matter, it would be apt to notice para 19 of the petition and the reply filed to this para by the respondents. The aforesaid para as also the reply filed to the same is being reproduced below: "19: That though the order of appointment of the petitioner speaks of five years tenure, yet the petitioner is continuing on tenure of five years till date and has earned 7 annual increments in the grade and the last having been drawn w.e.f. Sept. 95. It leaves no doubt that the appointment of the petitioner is on permanent basis". "Reply: Averments made in para 19 needs on reply in view of the detailed submissions made here in above." 9. The question arises as to whether prescription of condition that the tenure of the petitioner would be five years is a good condition? The Supreme Court of India in the case reported as Central Inland Water Transport Corporation Ltd. and another V. Brojo Nath Ganguly and another, AIR 1986 SC 1571, had an occasion to consider a larger question. The question was as to whether the power reserved by the employer to terminate the services of an employee without giving any reason and without giving any notice is void under section 23 of the contract Act as opposed to public policy. It was observed 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. For instance, the above principal will apply where the in equality 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 the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which be 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. It will apply to situations in which the weaker party is in a position in which be 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. The types of contract 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. They are opposed to public policy and require to be adjudged void." In the above case the Supreme court of India referred to an earlier decision in West Bengal State Electricity Board V. Desh Bandhu Ghosh, AIR 1985 SC 722. What was quoted from the above judgment is being quoted again: "... a naked hire and fire rule, the time for banishing which altogether from employer - employee relationship is fast approaching. Its only parallel is to be found in the Hency VIII clauses so familiar to administrative lawyers." 10. After noticing this, a para99 of the judgment, the clause which empowered the employer to snap the relationship of master and servant was described as "the Henry VIII Clause". It was held that "it confers absolute and arbitrary power upon the corporation. It does not even state who on behalf of the corporation is to exercise that power" The fact that different types of service contracts can be entered into the different consequences was taken notice of. What was ultimately said in para 101 of the judgment is being reproduced below: "... The government and its agencies and instrumentalities constitute the largest employer in the country. A clause such as rule 9 (i) is in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for the tends to create a sense of insecurity in the minds for those to whom it applies and consequently it is against public good. A clause such as rule 9 (i) is in a contract of employment affecting large sections of the public is harmful and injurious to the public interest for the tends to create a sense of insecurity in the minds for those to whom it applies and consequently it is against public good. Such a clause, therefore is opposed to public policy, it is void under section 23 of the Indian Contract Act." 11. The aforementioned decision in Brojo Naths case has been approved by the Supreme Court in a still later case reported as Delhi Transport Corporation V.D.TC. Mazdoor Congress and ors. AIR 1991 SC 101. 12. Reverting to the facts of this case again, it be noticed: i. That there is a permanent need for the post of demonstrator; ii. That the petitioner has continued to work against this post and has attended experience which experience would be useful to those for whom the petitioner has been engaged; iii. That engaging a fresh recruit for the same purpose and dispensing with the services of the petitioner, who is now a trained person, would not serve any public interest. 13. Therefore, the larger question which is required to be taken note of is as to whether appointing person on tenure basis for a period for five years or so, when need is permanent would serve a public purpose is in line with the public policy. I am of the opinion that the clause limiting the tenure of the petitioner to five years when need is permanent, should not be sustainable on account of the law laid down by the Supreme court in Brojo Maths case (supra). This is because the petitioner was in no power to bargain at the time she joined the services. After joining, she came to this court. She wants this restriction clause to be examined. On examination, it is found that this clause is not in consonance with the public policy. 14. Independently of the above, it be seen that after the tenure of five years came to an end, the petitioner was permitted to continue for another two years. This indicates that the need of permanent and if the need is permanent, then the person who is supposed to look after that job should also have a permanent status. 14. Independently of the above, it be seen that after the tenure of five years came to an end, the petitioner was permitted to continue for another two years. This indicates that the need of permanent and if the need is permanent, then the person who is supposed to look after that job should also have a permanent status. It is a different matter that after completing the tenure the petitioner can be given some other assignment but bringing an end to her service tenure would not be apt. At the time, when the petitioner approached this court she was 35 years of age, she is now over 40. Her chances of getting observed somewhere else have also diminished. This is too a factor which cannot be ignored. 15. Another argument raised by the respondents that the petitioner had accepted the condition is an argument which can also not be accepted. It is settled law that fundamental rights cannot be waived. The earliest view on the subject is reported as AIR 1955 SC 123, Behram Khurshid Pesikaka V. State of Bombay. It was observed that doctrine of waiver enumerated by some American Judges in construing the American constitution cannot be introduced our constitution. The rights described as fundamental rights are a necessary consequences of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and the opportunity. These fundamental rights have not been put in the constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy. Reference to some of the Articles, interalia, Articles 15 (1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "You can discriminate. In a still stronger language the Supreme court in the case reported as AIR 1959 SC149, Basheshar nath V. Commissioner of Income Tax, Delhi and Rajasthan and anr. Reference to some of the Articles, interalia, Articles 15 (1), 20, 21 makes the proposition quite plain. A citizen cannot get discrimination by telling the State "You can discriminate. In a still stronger language the Supreme court in the case reported as AIR 1959 SC149, Basheshar nath V. Commissioner of Income Tax, Delhi and Rajasthan and anr. observed that Article 14 is, in form, an admonition addressed to the State and does not directly support to confer any right on any person. The obligation thus imposed on the State, no doubt, ensures for the benefit of all persons, as a necessary result of the operation of this Article, they all enjoy equality before the law. It was further observed that whatever breach of other fundamental right, a person of a citizen may or may not waive, he cannot certainly give up or waive a breach of the fundamental right. 16. A full Bench of Allahabad High Court in Pradip Tandon V. State of Uttar Pradesh and others, AIR 1975 Allahabad 1, considered this question, it was observed that merely because a citizen has filled some form would not confer upon the State a power to discriminate in violation of the constitutional injunction. No question of estoppel or waiver arises where the State lacks the constitutional power to enforce a rule which is unconstitutional and thus ultravires. 17. Another Division Bench in Honble Chief Justice H.C. Allahabad and others V. Abdul Wahid Khan and other, 1971, Labour and Industrial Cases, 773, speaking through R.s. Pathak, J, later Chief Justice of India expressed the same sentiments and held in no uncertain terms that the State is not relieved of the obligation to comply with the constitutional mandate merely because a person affected chose to exercise a particular option. A right to discriminate against cannot be waived. See Omega Advertising Agency v. State Electricity Board, AIR 1982 Gauhati 37, also. 18. So far as the merits of controversy are concerned, The petitioner placed reliance on order passed by this court on 27th May 97. It is submitted that the State was directed to indicate its stand vis-a-vis three points as projected in the order. These are as under: i. Sources which makes the post of Demonstrator of Anatomy tenure post; ii. Whether any, benefits stand granted to the petitioner as a permanent and regular employee; and iii. It is submitted that the State was directed to indicate its stand vis-a-vis three points as projected in the order. These are as under: i. Sources which makes the post of Demonstrator of Anatomy tenure post; ii. Whether any, benefits stand granted to the petitioner as a permanent and regular employee; and iii. Whether the petitioner is hit by the conditions laid in the Government order No. 121-IIME". 19. It is accordingly submitted by the petitioner that : i. The above government order referred to at serial N. (iii) above does not deal with the appointment of in service doctors on tenure basis. It is submitted that the above order would have not relevance for determining the terms and conditions of the service of the petitioner. It is further submitted that in terms of Jammu and Kashmir Medical Education (Gazetted Service Recruitment) Rules of 1979, the non medical incumbents to the post of Demonstrators is not to exceed 30 percent. It is submitted that the petitioner is the only non medical demonstrator and she is within the limit of 30 percent quota. It is accordingly urged that if the definition of tenure post1 as given in R. 34 B of the Civil Services Regulation is taken into consideration, then it would mean a permanent post which an individual Government servant may not hold for more than a period limited in the order of appointment. It is on this basis and also on the basis of plea taken in para 16 of the petition, it is urged that the tenure of the petitioner cannot be limited and she cannot be ousted. Infact, the prayer made is that she should be treated as a permanent demonstrator as she being the only non medical increment is entitled to continue in terms of R. 5(b) of the rules of 1979 referred to above. 20. I am of the opinion that the argument put across the petitioner deserves to be accepted. Her appointment is apparently under the rules of 1979. Her claims that she is within the limits prescribed in the rules above i.e. being a non-medical Demonstrator, she should have been appointed permanently, is an argument which deserves to be accepted. The need is permanent. The practice of appointing a person for a limited tenure would not be in consonance with the public policy. Her claims that she is within the limits prescribed in the rules above i.e. being a non-medical Demonstrator, she should have been appointed permanently, is an argument which deserves to be accepted. The need is permanent. The practice of appointing a person for a limited tenure would not be in consonance with the public policy. Independently of what has been urged by the petitioner, it is held that the condition limiting the tenure of an employee for a limited period when need is permanent would not only be violative of Articles 14 and 16 of the constitution. The mere fact that the petitioner opted and joined the service in terms of the conditions would not stand in her way. In view of position of law noticed above, this petition is allowed. The petitioner would be deemed to a permanent appointee. The condition limiting hertenure for a period of five years shall be given effect to. 21. Disposed of accordingly.