Judgment Hon'ble ASOPA, J.—Since common question of facts and law are involved in these cases, relating to the termination of the services of the petitioners who were appointed as substitutes under the Shikshak Adheyatavriti Yojna which were given to them on purely contractual temporary basis as per the circular dated 4.7.2008, therefore, all the cases which have been reserved on different dates after hearing arguments, clubbed together and are being decided by this common order. 2. The facts of SBCWP No. 5238/2009 are taken for deciding these writ petitions. 3. On 4.7.2008, the State Government issued a circular for implementing the Shikshak Adheyatavriti Yojna for being appointed on the post of College Lecturers purely on contractual temporary basis in place of the Lecturers who were availing academic leave. As per Point No. 1 in the directions for imple-mentation of the Scheme, the Selection Committee was to be constituted comprising of one subject expert and Secretary of the College Development Society or its representative, and after scrutinishing the applications considering their qualifications as per Schedule `A' the suitability was to be adjudged as per Schedule ` B'. Point No. 3 of the aforesaid Policy is for execution of the undertaking on Rs. 10/- non-judicial stamp as prescribed in Schedule `C' and further, Point No. 5 relates to the discharge of the substitute (s) on completion of the prescribed period. It is stated in the writ petition that the Lecturers are still on academic leave but despite that, the petitioners have been discharged from the services during the continuation of the academic session keeping in view the undertaking given by them which is arbitrary. 4. In reply, the Government has justified their action on the basis of circular dated 4.7.2008. On the issue of non-availability of Lecturers who had gone for academic leave no specific reply has been filed and there is no specific denial of the fact that no post of College Lecturer will remain vacant on 1.7.2009. 5. The submission of the counsel for the petitioners is that now the respondents will against appoint substitutes from 1.7.2009. On the issue of non-availability of Lecturers who had gone for academic leave no specific reply has been filed and there is no specific denial of the fact that no post of College Lecturer will remain vacant on 1.7.2009. 5. The submission of the counsel for the petitioners is that now the respondents will against appoint substitutes from 1.7.2009. Counsel for the petitioners have further submitted that the controversy raised in these writ petitions is covered by the controversy decided in the case of Vidhyarthi Mitras regarding appointment of Teachers in primary and upper primary/secondary schools, except the point of undertaking and on undertaking, submission of the counsel for the petitioners is that there cannot be any estoppel against the fundamental/statutory rights and further, furnishing of the undertaking is to be viewed from the angle that the respondents were having upper hand over the hand of the petitioners therefore, there was no equal bargaining and it cannot be said to be undertaking given with free consent and in this connection, reliance has been placed on a judgment of the Supreme Court in Central Inland Water Transport Corporation Limited and another vs. Brojo Nath Ganguly and another (1986) 3 SCC 156 ). 6. Mr. Yadav, Addl. Advocate General submits that having given undertaking the petitioners are estopped from challenging the termination of their services and the undertaking is not opposed to the public policy. He placed reliance on State of Rajasthan and others vs. Basant Nahata (2005) 12 SCC 77), and the judgment dated 5.5.2009 of this Court in Anil Kumar Kothari vs. State & Ors. (SBCWP No. 4276/2008). 7. I have gone through record of the writ petitioners and further considered the rival submission of counsel for the parties. 8. He placed reliance on State of Rajasthan and others vs. Basant Nahata (2005) 12 SCC 77), and the judgment dated 5.5.2009 of this Court in Anil Kumar Kothari vs. State & Ors. (SBCWP No. 4276/2008). 7. I have gone through record of the writ petitioners and further considered the rival submission of counsel for the parties. 8. Before proceeding further, it is useful to quote the relevant portion of the circular dated 4.7.2008 which is as under: ^^dk;kZy; vk;qDr] dkyst f'k{kk] jktLFkku] t;iqj Øekad % ,Q20¼Vh-vkj-,Q-½ ys[kk@vkdkf'k@HkhyokM+k@2003@109 fnukad 4-7-2008 izkpk;Z] ;w-th-lh- ls lEcfU/kr] leLr egkfo|ky;] jktLFkku fo"k;%&f'k{kd v/;ko`fr ;kstuk ds vUrxZr vdkneh vodk'k ij x;s O;k[;krkvksa ds fjDr inksa ij ^^lafonk ds vk/kkj ij** fu;qfDr gsrqA lanHkZ & vk;qDrky; ds ifji= Øekad ,Q 20 ¼Vh-vkj-,Q-½ ys[kk@vkdkf'k @2005@783 fnukad 27-9-06 ,oa ;w-th-lh- Hkksiky dk ifji= Øekad lh-vkj-vks-lh-,T;w- 2004&05 fnukad ekpZ] 2006 jktdh; egkfo|ky;ksa esa f'k{kd v/;srko`fr ;kstuk ds vUrxZr vdkneh vodk'k ij x;s O;k[;krkvksa ls gq, fjDr inksa ij rRdkyhu iwfrZ gsrq ^^lafonk ds vk/kkj ij** iw.kZr;k vLFkkbZ rkSj ij] fu/kkZfjr vk;q lhek esa] fo'ofo|ky; vuqnku vk;ksx }kjk fu/kkZfjr 'kS{kf.kd ;ksX;rk j[kus okys vH;kfFkZ;ksa dks] ;w-th-lh- }kjk fu/kkZfjr U;wure osru jkf'k :i;s 8000@& ,oa bl ij feyus okys vU; HkRrs ¼tSls Mh-,-] Mh-ih-] ,p-vkj-,- lh-lh-,- bR;kfn½ ij izR;sd 'kS{kf.kd l= ds izFke dk;Z fnol ls fu;qDr fd;k tkdj 'kS{kf.kd l= ds vafre dk;Z fnol rd rFkk lacaf/kr O;k[;krkvksa ds f'k{kd v/;srko`fr ;kstuk ls ykSVus rd tks Hkh iwoZre gks ds fy, v/;kiu dk;Z lqpk: :i ls djokus gsrq vkidks vf/kd`r fd;k tkrk gSA ;kstuk dh fØ;kfUofr gsrq funsZ'k 1- vkids egkfo|ky; esa f'k{kd v/;srko`fr ;kstuk ds dkj.k ;fn dksbZ O;k[;krk dk in fjDr gqvk gks rks ml ij ^^lafonk ds vk/kkj ij** iw.kZr;k vLFkkbZ vk/kkj ij fu;qfDr gsrq izkpk;Z dh v/;{krk esa ,d p;u lfefr cukbZ tkos] ftlesa ,d fo"k; fo'ks"kK ,oa lEcfU/kr egkof|ky; dh fodkl lfefr dk lfpo ;k mldk ,d izfrfuf/k gksA 2- fo'ofo|ky; vuqnku vk;ksx }kjk fu/kkZfjr 'kS{kf.kd ;ksX;rk j[kus okys vH;FkhZ dks gh O;k[;krk in ij fu;qfDr fd;k tkosA fu/kkZfjr 'kS{kf.kd ;ksX;rk dh izfr ifjf'kf"B ^^v** ,oa ^^vk** ;ksX;rk lwph esa ofj;rk ds ekun.M] vk;q lhek ifjf'k"B ^^c** ij miyC/k gSA 3- O;k[;krk in gsrq ;ksX; vkosndksa ls fu;qfDr ls iwoZ fyf[kr esa fu/kkZfjr ifjf'k"B ^^l** vuqlkj 10@& :i;s ds ukWu T;wfMf'ky isij ij v.MjVsfdax fy;k tkosA 4- izR;sd 'kS{kf.kd l= ds fy, fnukad 10 twu rd foKfIr tkjh dj fnukad 25 twu rd ;ksX;rk/kkjh vH;fFkZ;ksa ls vkosnu i= izkIr djsa ,oa izkIr vkosnu i=ksa dk LØhfuax dj] izR;sd 'kS{kf.kd l= ds izFke dk;Z fnol ls fu;qDr fd;k tk dj v/;kiu dk;Z djok;k tkuk lqfuf'pr djsaA ;fn dksbZ vkosnd izR;sd 'kS{kf.kd l= ds izFke dk;Z fnol dks v/;kiu dk;Z ds fy, mifLFkr ugha gksrk gS rks mlds LFkku ojh;rk Øe esa nwljs vkosnd dks v/;kiu djokus dk volj iznku dj fn;k tkosA orZeku l= ds fy, vfoyEc foKfIr tkjh dj v/;kiu dh O;oLFkk 'kh?kz djsaA 5- fu/kkZfjr vof/k ds i'pkr~ vkosnd dks dk;Z eqDr dj bl dk;kZy; dks lwfpr fd;k tkos--A** 9. The undertaking given by the candidates is as under: ^^v.MjVsfdax dk izk:i vkt fnukad 2-1-09 dks ;g lafonk ij jkT; ljdkj dh vksj ls izkpk;Z ,e-,l-dkWyst Hkjriqj dk izkFkhZ txnh'k izlkn iq= Jh ukjk;.k flag tkfr&tkVo xzke iksLV gkVekMh rglhy :iokl ftyk Hkjriqj jkt ds ek/;e uhps fy[ks x;s fooj.k ,oa 'krksZ ds vuqlkj esa lafonk ds vk/kkj ij v/;kiu O;oLFkk gsrq fu"ikfnr fd;k tkrk gSA 1- dk;Z & izkFkhZ dks izfrekg f'k{k.k dk;Z izkpk;Z ds funsZ'ku ds vuqlkj lEiUu djuk gksxkA 2- vkoUVu & izkFkhZ dks lafonk ds vk/kkj ij v/;kiu O;oLFkk jkt- lsok yksd vk;ksx ls p;fur vH;FkhZ ds dk;Z Hkkj xzg.k djus dh frfFk vFkok vkxkeh 28-2-09 dh vof/k buesa ls tks Hkh iwoZre gksus ds fy;s gksxhA 3- ikfjJfed 3-1 izkFkhZ dks 7950 izfrekg ns; gksxk izkFkhZ dks fdlh Hkh izdkj dk vU; dk ikfjJfed ;k=k HkRrk ;k vU; HkRrs ifjykHk ns; ugha gksxsaA 3-2 ekg ds vkaf'kd le; dh fu;qfDr dh fu;qfDr dh n'kk esa izkFkhZ dks Hkqxrku ekg dh 30 fnu ekurs gq, fn;k tk;sxkA 4- v/;kiu O;oLFkk dh lekfIr 4-1 izkFkhZ dh lafonk ds vk/kkj ij O;oLFkk jkt- yksd lsok vk;ksx ls p;fur vH;FkhZ ds dk;Zxzg.k djus dh frfFk vFkok vkxkeh 28-2-09 rd dh vof/k buesa ls tks Hkh iwoZrre gksus ds fy, gksxhA 4-2 lafonk ds vk/kkj ij fu;qDr fd;s x;s vH;FkhZ dk dk;Z lUrks"ktud ugha ik;s tkus ij mldh fu;qfDr izkpk;Z }kjk lekIr dh tk ldsxhA 4-3 ;fn izkFkhZ }kjk izsf"kr dksbZ Hkh lwpuk fdlh Hkh le; vlR; ikbZ xbZ rks lafonk ds vk/kkj ij dh xbZ fu;qfDr rRdky lekIr dj nh tkosxh rFkk xyr lwpuk izLrqr djus ds fy, vfoyEc izkFkhZ ds fo:) dkuwuh dk;Zokgh dh tk ldsxhA 5- izkFkhZ lafonk ds vk/kkj ij viuh lsok dh fujUrjrk fu;qfDr esa izkFkfedrk v/;kiu esa fu;qfDr ds fy;s dksbZ okn dkj.k ugha dj ldsxkA izkFkhZ }kjk ;g lafonk LoLFkfpRr ,oa Lora= bPNk ,oa fcuk fdlh ncko o iw.kZ gks'k gokl esa fcuk u'ks irs ds jgrs gq, lEikfnr dh xbZ gSaA** 10. Now I proceed to examine the submissions raised by the counsel for the parties. 11. The case of State of Rajasthan vs. Basant Nahata (supra) is relating to Sec. 22as inserted vide Rajasthan Amendment Act (16 of 1976) in Regulation Act, 1908 regarding stamp duty in case of agreement of sale where possession has been delivered or power of attorney where right of transfer has been given. 11. The case of State of Rajasthan vs. Basant Nahata (supra) is relating to Sec. 22as inserted vide Rajasthan Amendment Act (16 of 1976) in Regulation Act, 1908 regarding stamp duty in case of agreement of sale where possession has been delivered or power of attorney where right of transfer has been given. In the said case, the amendment was also challenged on the ground that the same was opposed to the public policy. The Supreme Court while dealing with the said issue from paras 41 to 47 has laid down parameter of cases of contract which offence public policy. Three of them have been said to be expedient rather than unprincipled. Paras 45 and 47 of Basant Nahata (supra) are as under: "45. The said phraseology came up for consideration before this Court in Central Inland Water Transport Corporation Limited and Another vs. Brojo Nath Ganguly where a note of caution has been sounded that it being a `very unruly horse,' once when gets astride one does not know how far it would carry him. The question as to whether the statement as regard the validity of a contract on the ground that it is opposed to public policy must normally be viewed within the parameters fixed therefor by longstanding authorities or precedents but in deciding a case it may not be covered by such authorities and lacking precedents, the preamble of the Constitution or the principles underlying the fundamental rights and the Directive Principles in our Constitution can be taken recourse to. This Court in Rattan Chand Hira Chand vs. Askar Nawaz Jung quoted the following from Prof. Winfield's Article "Public Policy in the English Common Law.":(SCC p. 77, para 18) "Some judges appear to have thought it [the unruly horse of public policy] more like at tiger, and refused to mount it at all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balaam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community." It was further observed : (SCC pp. 77-78, para 18) "All courts have at one time or the other felt the need to bridge the gap between what is and what is intended to be. 77-78, para 18) "All courts have at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duty and refuse to fill the gap. In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good." 47. In Cheshire, Fifoot & Furmston in their Law of Contract, 14th Edn. at p. 407 states: "Assuming, then, that contracts vitiated by some improper element must be divided into two classes, how are the more serious examples of `illegality' at common law to be distinguished from the less serious? Which of the contracts that have been frowned upon by the courts are so patently reprehensible - so obviously contrary to public policy- that they must be peremptorily styled illegal? Judicial authority is lacking, but it is submitted that the epithet `illegal' may aptly and correctly be applied to the following six types of contract: -A contract to commit a crime, a tort or a fraud on a third party. - A contract that is sexually immoral. - A contract to the prejudice of the public safety. - A contract prejudicial to the administration of justice. - A contract that tends to corruption in public life. - A contract to defraud the revenue. There remain three types of contract which offend `public policy' but which are inexpedient rather than unprincipled. - A contract to oust the jurisdiction of the Court. - A contract that tends to prejudice the status of marriage. - A contract in restraint of trade." 12. - A contract to defraud the revenue. There remain three types of contract which offend `public policy' but which are inexpedient rather than unprincipled. - A contract to oust the jurisdiction of the Court. - A contract that tends to prejudice the status of marriage. - A contract in restraint of trade." 12. As regards the judgment in Anil Kumar Kothari vs. State (supra), this Court had occasion to consider the same in SBCWP No. 4652/2009 decided on 8.5.2009 and after consideration, it was held that the same is distinguishable on facts and it was held as under: "(28) With due respect to the aforesaid judgment of the co-ordinate Bench of this Court, the facts and circumstances as well as the issues raised in these writ petitions wee not raised in the writ petition of Anil Kumar Kothari, therefore, there was no decision by the co-ordinate Bench on the present issues which are as follows: (i) There is no restriction in the Rules and to meet out such exceptional exigency, the policy could be issued and implemented in the interest of school education which includes students and the appointment of Teachers on contract basis; (ii) There was no challenge to the policy before the Co-ordinate Bench; otherwise also, the respondents cannot be allowed to challenge their own policy; (iii) The judgment of the Supreme Court in Commissioner, Kendriya Vidyalaya Sangathan V. Anil Kumar Singh (supra) has not been discussed in the aforesaid case by the co-ordinate Bench. 29. I am conscious of the view that another co-ordinate Bench in Anil Kumar Kothari (supra) held the contractual appointment dehors the Rules but the issue of `exceptional exigency' was not considered to implement the Scheme and further I have to answer the aforesaid three legal issues which are not of minor nature and the same have been debated and discussed in these cases, in the light of the judgments of the Supreme Court including that of the Constitution Bench in Uma Devi (3) wherein effect of Piara Singh (supra) has not been diluted of substituting ad hoc employee by another ad hoc employee, therefore on facts and law, the present cases are distinguishable. 30. 30. In my view, paras 1 and 2 of the judgment in Commissioner, Kendriya Vidyalaya Sangathan and others vs. Anil Kumar Singh and others (supra) will apply in the facts and circumstances of the present cases and they are as follows: "1. The employer Commissioner, Kendriya Vidyalaya Sangathan is in appeal against the judgment of the Madhya Pradesh High Court in Writ Petition No. 782 of 1995 which was upheld in appeal by the Division Bench. The respondents had been appointed on contractual basis and just before the expiry of the contractual period, they approached the High Court with the prayer that their services should not be terminated until the posts are filled up by a process of regular recruitment. The learned Single Judge by his order dated 6.4.1995 disposed of the writ petition following an earlier judgment of said Court in S.P. Upadhyay case directing that the writ petitioners should be allowed to continue till the posts are filled up by process of regular recruitment, and those petitioners should be allowed to complete with other candidates if they apply for selection and if they are otherwise not disqualified. The High Court also took additional care by indicating that the writ petitioners cannot claim any additional advantage by virtue of their experience by working for the contractual period. In the aforesaid premises, we do not find any infirmity with the said judgment of the High Court to be interfered with by this Court. The expression "if they are otherwise not disqualified' would obviously mean they must have the necessary qualifications, as required, under the relevant rules for being appointed as a teacher and then they have to compete along with others for adjudication of their merit for being appointed. The apprehension of the employer that the impugned judgment directs condonation of the age is wholly unfounded. 2. In the aforesaid premises, we do not find any justification for interference with the direction given by the High Court. Civil Appeals are accordingly dismissed." 31. The apprehension of the employer that the impugned judgment directs condonation of the age is wholly unfounded. 2. In the aforesaid premises, we do not find any justification for interference with the direction given by the High Court. Civil Appeals are accordingly dismissed." 31. As discussed above, the issue of substitution of ad hoc employee can be summed up that direction in Para 46 of State of Haryana vs. Piara Singh (supra) (three Judges' Bench) was considered by the Supreme Court in State of Karnataka vs. Uma Devi (3) (supra) (five Judges' Bench) in paras 21, 27, 28, 29 but the effect that ad hoc employee cannot be substituted by another ad hoc employee has not been diluted. Only in para 26, para 50 of Piara Singh (supra) of framing scheme of regularisation/absorption has been held to be inconsistent with para 45. 32. In Official Liquidator vs. Dayanand and others (2008) 10 SCC 1 ), the judgment in State of Haryana V. Piara Singh (supra) was considered in paras 18, 43, 46 and 48 but in the said judgment, the issue was relating to the regularisation and absorption, therefore, no finding was given on the issue of replacing ad hoc employee by another ad hoc employee. The other findings have been referred in the aforesaid paras more particularly para 72 regarding inconsistency of Piara Singh (supra) of para 45 and 50 but not para 46 and held that scheme of regularation/absorption can only be in accordance with the said Constitution Bench judgment in State of Karnataka V. Uma Devi (3). (33) The main question arises for consideration on merit is only whether it was open to the respondents to stick on the first and last extension during the non availability of the candidates selected by the RPSC/persons recommended by the DPC for promotion and further availability of the examination/admission work and teaching work which is to be stated from the new academic session and there is no hope of selected candidates being made available. (34) A perusal of the order dated 2.6.2008 would reveal that the circular is not only for the year 2008-2009 but it has been implemented for the reason of non availability of the selected candidates from RPSC/persons selected and recommended by the DPC for promotion, and further specific dates i.e. 28.2.2009 and 15.4.2009 for continuation of their appointment were fixed with the stipulation `whichever is earlier' for the reason that by that time, the candidates selected by the RPSC might be available. There is no substantial change of circumstances as the condition of non-availability of RPSC selected candidates/persons selected by the DPC still exists and the academic session is about to start for which given urgent temporary appoint-ments are also not possible within a short span of time now left to start the next academic sessions. Further argument of the counsel for the State is that the services of the petitioners came to an end automatically on 15.4.2009 and there is no reason to further extend the same is also not sustainable as where the examinations are over, checking of the answer sheets is going on and even if result is declared, then the admission process for the next academic session is about to start for which also the services of the Teachers is required, therefore, the Scheme is in force, the work is available and simply invocation of the last extension is held to be arbitrary and illegal. (35). Before parting with the judgment, I would like to observed that Education is a Vacation Department as per Rule 94A RSR. The regular employee/ad hoc temporary employee may be entitled for salary of the vacations but in my view, the contract employees are not entitled for the wages of the vacation. (36). Accordingly, the writ petitions are disposed of as under: I. During continuation of the work, as detailed out hereinabove, the invocation of the last extension is arbitrary and illegal; and the consequential automatic termination orders of the petitioners are set aside. II. (36). Accordingly, the writ petitions are disposed of as under: I. During continuation of the work, as detailed out hereinabove, the invocation of the last extension is arbitrary and illegal; and the consequential automatic termination orders of the petitioners are set aside. II. The RPSC/DPC selected candidates/employees are still not available and next academic session is about to start; even urgent temporary appointments under Rule 28 of the Rules of 1971 are not possible due to short span of one month and a half left to start with the process of admission and academic session, therefore, as per the aims and objects of the Scheme, respondents are directed to consider the cases of the petitioners for continuation in service till regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available in the light of the above observations; III. Even in case of appropriate order of continuation in service till regularly selected candidates from RPSC/DPC selected persons are available, the petitioners are not entitled for wages of the vacations, in other words, when the schools are closed. IV. In case the regularly selected candidates from RPSC/persons selected and recommended by the DPC for promotion are made available, then the respondents can terminate services of the petitioners after preparation of the seniority list on the State level as per their date of appointment and merit assigned to them, by following the principle of `last come first go' to the extent of availability of the selected candidates and while doing so, the respondents will keep the interest of the present students and prospective students in view." 13. In Central Inland Water Transport Corporation Ltd. vs. Brojo Nath Ganguly (supra), relied by counsel for the petitioners, the issue of free consent on the ground of unequal bargaining has been considered and it was held that the said consent could not be said to be free consent and the unconscionable term was held to be arbitrary. Paras 76, 83, 84, 89, 93, 96 and 112 of the aforesaid judgment are as under: Paras 76, 83, 84, 89, 93, 96 and 112 "76. Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. Under which head would an unconscionable bargain fall? If it falls under the head of undue influence, it would be voidable but if it falls under the head of being opposed to public policy, it would be void. No case of the type before us appears to have fallen for decision under the law of contracts before any court in India nor has any case on all fours of a court in any other country been pointed out to us. The word "unconscionable" is defined in the Shorter Oxford English Dictionary, Third Edition, Volume II, page 2288, when used with reference to actions etc. as "showing no regard for conscience; irreconcilable with what is right or reasonable." An unconscionable bargain would, therefore, be one which is irreconcilable with what is right or reasonable. 83. Yet another theory which has made its emergence in recent years in the sphere of the law of contracts is the test of reasonableness or fairness of a clause in a contract where there is inequality of bargaining power. Lord Denning, M.R., appears to have been the propounder, and perhaps the originator- at least in England, of this theory. In Gillespie Brothers & Co. Ltd. vs. Roy Bowles Transport Ltd., where the question was whether an indemnity clause in a contract, on its true construction, relieved the indemnifier from liability arising to the indemnified from his own negligence, Lord Denning said (at pages 415-416): "The time may come when this process of `construing' the contract can be pursued no further. The words are too clear to permit of it. Are the courts then powerless? Are they to permit the party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreasonably, as to be unconscionable? When it gets to this point, I would say, as I said many years ago: `there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused': John Lee & Son (Grantham) Ltd. vs. Railway Executive. It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so." In the above case the Court of Appeal negatived the defence of the indemnifier that the indemnity clause did not cover the negligence of the indemnified. It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so." In the above case the Court of Appeal negatived the defence of the indemnifier that the indemnity clause did not cover the negligence of the indemnified. It was in Lloyds Bank Ltd. vs. Bundy, that Lord Denning first clearly enunciated his theory of "inequality of bargaining power." He began his discussion on this part of the case by stating (at page 763): "There are cases in our books in which the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms, when the one is so strong in bargaining power and the other so weak that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall. Hitherto those exceptional cases have been treated each as a separate category in itself. But I think the time has come when we should seek to find a principle to units them. I put on one side contracts or transactions which are voidable for fraud or misrepresentation or mistake. All those are governed by settled principles. I go only to those where there has been inequality of bargaining power such as to merit and intervention of the Court." He then referred to various categories of cases and ultimately deduced there from a general principle in these words (at page 765): "Gathering all together, I would suggest that through all these instances there runs a single thread. They rest on `inequality of bargaining power.' By virtue of it, the English law gives relief to one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word `undue' I do not mean to suggest that the principle depends on proof of any wrongdoing. When I use the word `undue' I do not mean to suggest that the principle depends on proof of any wrongdoing. The one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconscious of the distress he is bringing to the other. I have also avoided any reference to the will of the one being `dominated' or `overcome' by the other. One who is in extreme need may knowingly consent to a most improvident bargain, solely to relieve the straits in which he finds himself. Again, I do not mean to suggest that every transaction is saved by independent advice. But the absence of it may be fatal. With these explanations, I hope this principle will be found to reconcile the cases." 84. Though the House of Lords does not yet appear to have unanimously accepted this theory, the observations of Lord Diplock in A. Schroeder Nusic Publishing Co. Ltd. vs. Macaulay (Formerely Instone), are a clear pointer towards this direction. In that case a song writer had entered into an agreement with a music publisher in the standard form whereby the publishers engaged the song writer's exclusive services during the term of the agreement, which was five years. Under the said agreement, the song writer assigned to the publisher the full copyright for the whole world in his musical compositions during the said term. By another term of the said agreement, if the total royalties during the term of the agreement exceeded Rs. 5,000 the agreement was to stand automatically extended by a further period of five years. Under the said agreement, the publisher could determine the agreement at any time by one month's written notice but no corresponding right was given to the song writer. Further, while the publisher had the right to assign the agreement, the song writer agreed not to assign his rights without the publisher's prior written consent. The song writer brought an action claiming, inter alia, a declaration that the agreement was contrary to public policy and void. Plowman, J., who heard the action granted the declaration which was sought and the Court of Appeal affirmed his judgment. An appeal filed by the publishers against the judgment of the Court of Appeal was dismissed by the House of Lords. Plowman, J., who heard the action granted the declaration which was sought and the Court of Appeal affirmed his judgment. An appeal filed by the publishers against the judgment of the Court of Appeal was dismissed by the House of Lords. The Law Lords held that the said agreement was void as it was in restraint of trade and thus contrary to public policy. In his speech Lord Diplock however, outlined the theory of reasonableness or fairness of a bargain. The following observations of his on this part of the case require to be reproduced in extenso (at pages 1315-16): "My Lords, the contract under consideration in this appeal is one whereby the respondent accepted restrictions upon the way in which he would exploit his earning power as a song writer for the next ten years. Because this can be classified as a contract in restraint of trade the restrictions that the respondent accepted fell within one of those limited cories of contractual promises in respect of which the courts still retain the power to relieve the promisor of his legal duty to fulfil them. In order to determine whether this case is one in which the power ought to be exercised, what your Lordships have in fact been doing has been to assess the relative bargaining power of the publisher and the sone writer at the time the contract was made and to decide whether the publisher had used his superior bargaining power to exact from the song writer promises that were unfairly onerous to him. Your Lordships have not been concerned to inquire whether the public have in fact been deprived of the fruit of the song writer's talents by reason of the restrictions, nor to assess the likelihood that they would be so deprived in the future if the contract were permitted to run its full course. It is, in my view, salutary to acknowledge that in refusing to enforce provisions of a contract whereby one party agrees for the benefit of the other party to exploit or to refrain from exploiting his own earning power, the public policy some 19th century economic theory about the benefit to the general public of freedom of trade, but the protection of those whose bargaining power is weak against being forced by those whose bargaining power is stronger to enter into bargains that are unconscionable. Under the influence of Bentham and of laissez-faire the courts in the 19th century abandoned the practice of applying the public policy against unconscionable bargains to contracts generally, as they had formerely done to any contract considered to be usurious; but the policy survived in its application to penalty clauses and to relief against forfeiture and also to the special category of contracts in restraint of trade. If one looks at the reasoning of 19th century judges in cases about contracts in restraint of trade one finds lip service paid to current economic theories, but if one looks at what they said in the light of what they did, one finds that they struck down a bargain if they thought it was unconscionable as between the parties to it and upheld it if they thought that it was not. So I would hold that the question to be answered as respects a contract in restraint of trade of the kind with which this appeal is concerned is : "Was the bargain fair?" The test of fairness is, no doubt, 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 promisor under the contract. For the purpose of this test all the provisions of the contract must be taken into consideration." Lord Diplock then proceeded to point out that there are two kinds of standard forms of contracts. The first is of contracts which contain standard clauses which "have been settled over the years by negotiation by representatives of the commercial interests involved and have been widely adopted because experience has shown that they facilitate the conduct of trade." He then proceeded to state, "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by parties whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable." Referring to the other kind of standard form of contract Lord Diplock said (at page 1316): "The same presumption, however, does not apply to the other kind of standard form of contract. This is of comparatively modern origin. It is the result of the concentration of particular kinds of business in relatively few hands. The ticket cases in the 19th century provide what are probably the first examples. This is of comparatively modern origin. It is the result of the concentration of particular kinds of business in relatively few hands. The ticket cases in the 19th century provide what are probably the first examples. The terms of this kind of standard form of contract have not been the subject of negotiation between the parties to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, either exercised alone or in conjunction with others providing similar goods or services, enables him to say: `If you want these goods or services at all, these are the only terms on which they are obtainable. Take it or leave it.' To be in a position to adopt this attitude towards a party desirous of entering into a contract to obtain goods of services provides a classic instance of superior bargaining power." 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 Article 14.This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unresonable 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. 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, whereof 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 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 dis-proportionate and unequal bargaining power. These cases can neither be enumerated cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances. 93. The normal rule of Common Law has been that a party who seeks to enforce an agreement which is opposed to public policy will be non-suited. The case of A. Schroeder Music Publishing Co. Ltd. vs. Macaulay, however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. The case of A. Schroeder Music Publishing Co. Ltd. vs. Macaulay, however, establishes that where a contract is vitiated as being contrary to public policy, the party adversely affected by it can sue to have it declared void. The case may be different where the purpose of the contract is illegal or immoral. In Kedar Nath Motani and others vs. Prahlad Rai and others, (1960) 1 SCR 861 reversing the High Court and restoring the decree passed by the trial Court declaring the appellants' title to the lands in suit and directing the respondents who were the appellants' benamidars to restore possession, this Court, after discussing the English and Indian law on the subject, said (at page 873): "The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Willistone and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by restoring to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted before the illegal purpose was achieved, then, unless it be of such a gross nature as to outrage the conscience of the Court, the plea of the defendant should not prevail." The types of contracts to which the principle formulated by us 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." 96. The said Rules as also the earlier rules of 1970 were accepted by the contesting Respondents without demur. Here again they had no real choice before them. They had risen higher in the hierarchy of the Corporation. They are opposed to public policy and require to be adjudged void." 96. The said Rules as also the earlier rules of 1970 were accepted by the contesting Respondents without demur. Here again they had no real choice before them. They had risen higher in the hierarchy of the Corporation. If they had refused to accept the said Rules, it would have resulted in termination of their service and the consequent anxiety, harassment and uncertainty of finding alternative employment. 112. In the result, both these Appeals fail and are dismissed but the order passed by the Calcutta High Court is modified by substituting for the declaration given by it a declaration that clause (i) of Rule 9 of the "Service, Discipline & Appeal Rules- 1979" of the Central Inland Water Transport Corporation Limited is void under section 23 of the Indian Contract Act, 1872, as being opposed to public policy and is also ultra vires Article 14 of the Constitution to the extent that it confers upon the Corporation the right to terminate the employment of a permanent employee by giving him three months' notice in writing or by paying him the equivalent of three months' basic pay and dearness allowance in lieu of such notice. 14. On the issue of appointment of candidate included in the merit list, it was held by the Constitution Bench in Shankarsan Dash vs. Union of India (1991) 3 SCC 47 ) that the candidate included in the merit list has no indefeasible right to appointment even if vacancy exists but the Government has no licence to act arbitrarily. The relevant portion of para 7 of the aforesaid judgment is as under: "Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner." 15. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner." 15. A perusal of Basant Nahata (supra) along with Point No. 5 of the undertaking relating to not availing of any legal remedy for continuation of appointment and further prescribing the fact that the same is being given on free will, not under pressure and in full consciousness, without there being any influence of intoxication, clearly reveals that the petitioners have been asked to sign on the dotted line. The said undertaking is contrary to the Premable of the Constitution wherein all citizens have been given right to seek social and economic justice and the same is further violative of equality clause which includes arbitrariness in laying down conditions of service on contract and also making compliance of the said arbitrary condition. The same is even contrary to para 47 of the said judgment cited by counsel for the respondents according to which a contract to oust the jurisdiction has been held to be inexpedient but here in the instant case, the contract is not only to oust the jurisdiction but also not to avail the legal remedy for continuation of the services which is contrary to the Preamble of the Constitution and Articles 14 and 16 of the Constitution of India, therefore, Point No. 5of the undertaking is unconstitutional and is void. The exercise of power of terminating the services of the petitioners during the continuation of the availability of the vacancies of College Lecturers is held to be arbitrary. 16. In the result, all the aforesaid writ petitions are disposed of in the following manner- (i) Point No. 5 of the undertaking about not availing of legal remedy for continuation of appointment; furnishing of the undertaking on free will and without there being any undue pressure and in full consciousness without there being any influence of intoxication is declared illegal being violative of Articles 14and 16 of the Constitution of India. (ii) The termination of the petitioners contract during the continuance of the vacancies is held arbitrary and illegal; (iii) The respondents are restrained from appointing substitute College Lecturers for the session 2009-2010 against the vacancies on which the petitioners were appointed. (ii) The termination of the petitioners contract during the continuance of the vacancies is held arbitrary and illegal; (iii) The respondents are restrained from appointing substitute College Lecturers for the session 2009-2010 against the vacancies on which the petitioners were appointed. (iv) As regards, continuation of the services of the petitioners after re-opening of the Colleges from 1.7.2009, the respondents are directed to consider the claim of the respective petitioners on priority basis for the session 2009-2010 and pass appropriate orders. (v) The petitioners shall not be entitled to the fixed amount as referred in the appointment letters for the period of closure of the respective colleges for summer vacations and further, they are entitled to the fixed amount from the date of their joining as per the order of continuation/fresh appointment in case it is given in the next academic session 2009-2010 in the light of the observations made hereinabove.