ORAL ORDER Heard learned counsel for the petitioner and the State. 2. Petitioner is serving as Steno-Typist in the Confidential Section of the Collectorate, Araria. He has filed this writ petition for a direction to the State-respondents to pay the arrears of difference of salary of the post of Peon and Steno-Typist with effect from 27.12.1999, the date on which he submitted joining as Peon after his appointment under order, bearing Memo No. 07 Headquarter dated 18.12.1999, Annexure-6 to the writ petition but he continued to discharge the duties of Steno-Typist as he was discharging earlier. Petitioner filed C.W.J.C. No. 5373 of 1993 and C.W.J.C. No. 10208 of 1997 for a direction to the State- respondents to consider his case for regularization on the sanctioned vacant post of Steno-Typist in the Collectorate, Araria which writ petition(s) were disposed of under orders dated 28.8.1993, 6.8.1999, Annexures-1, 4 to the writ petition directing the District Magistrate, Araria to advertise the sanctioned vacant post of Steno-Typist and take steps for appointment of Steno-Typist in the Collectorate, Araria. In the light of the order of the High Court dated 6.8.1999, Annexure-4, the Collector, Araria sought instructions from the authorities in the Personnel and Administrative Department of the State Government under letter No. 1447 dated 30.5.2001. In response to the instructions sought by the Collector, Araria, the Deputy Secretary informed the Collector, Araria under letter No. 5218 dated 6.9.2001, Annexure-7 to the writ petition that Collector, Araria is competent to take appropriate decision in the matter as per the Resolution and circulars issued by the State Government from time to time. Even after receipt of instruction from the Personnel Department of Government contained in letter dated 6.9.2001, Annexure-7, the direction of the High Court passed under order dated 6.8.1999, Annexure-4 to fill up the sanctioned vacant post of Steno-Typist in the Collectorate, Araria was not complied with and petitioner continued to discharge the duties of Steno-Typist and receive the salary payable to Peon he filed the present writ petition on 4.4.2006 after serving a copy thereof on 8.3.2006 on AAG-2 in the office of the Advocate General. 2. 2. By filing counter affidavit on behalf of Respondent no.5 affirmed on 1.9.2006, information was given to this Court that as the petitioner is discharging the duties of Class III employee i.e. Steno-Typist in the Collectorate, Araria, his request for grant of 20% officiating allowance for discharging the duties of higher post as per his representation dated 21.3.2005, Annexure-A to the counter affidavit is under consideration. Along with the said counter affidavit, the authorities also placed on record the instructions issued for the purposes of making appointment on Class IV post. By filing supplementary counter affidavit on behalf of Respondent no.5, through Sri Ganesh Thakur, the then Land Acquisition Officer, Araria, further information was given to this Court by Respondent no. 5 vide paragraph 5 of supplementary counter affidavit in compliance of the orders of the High Court dated 23.7.2007 that instructions were sought from the Personnel and Administrative Reforms Department of the Government under letter No. 1447 dated 30.5.2001 in response whereto instructions contained in letter No. 5218 dated 6.9.2001, Annexure-7 was received whereafter petitioner has been appointed on Class III post of Steno-Typist on ad hoc basis in anticipation of regularization of his appointment by the Personnel and Administrative Reforms Department of the State Government. In the supplementary counter affidavit, it was further stated that petitioner will not claim pay scale of Steno-Typist until he is regularized on the post of Steno-Typist by the Personnel and Administrative Reforms Department. 3. Having appreciated the contents of paragraph 5, this Court asked the learned counsel for the petitioner to produce the order by which petitioner has been appointed as Steno-Typist on ad hoc basis by the Collector, Araria in compliance of the order of the High Court dated 6.8.1999, Annexure-4. Learned counsel for the petitioner thereafter produced the order, bearing Memo No. 608 dated 10.8.2007 passed by the Collector, Araria, perusal whereof indicates that for ensuring compliance of the order of the High Court dated 6.8.1999, Annexure-4, requisition was made to the State Staff Selection Commission so as to complete the formalities for appointment of Steno-Typist in the Collectorate, Araria under letter No. 549/E dated 8.8.2006, Annexure-B to the supplementary counter affidavit. The requisition, however, was not acted upon by the Commission and recommendation for appointment on the sanctioned vacant post of Steno-Typist in the Collectorate, Araria could not be made. The requisition, however, was not acted upon by the Commission and recommendation for appointment on the sanctioned vacant post of Steno-Typist in the Collectorate, Araria could not be made. Affidavit was obtained from the petitioner that he shall not claim salary and allowances admissible to Steno-Typist and on such undertaking given by the petitioner, ad hoc appointment of the petitioner was made on the post of Steno-Typist. 4. Having produced the order, bearing Memo No. 608 dated 10.8.2007, learned counsel for the petitioner verbally modulated the prayer made in the writ petition and questioned the instructions given in the ad hoc appointment letter that petitioner shall not be paid the salary of the post of Steno-Typist until his appointment on the said post is regularized. Learned counsel submitted that the embargo placed on the petitioner in receiving salary of the post of Steno-Typist is nothing but arbitrary and violative of Article 14 of the Constitution of India. In this connection, it was pointed out that as petitioner is appointed as Steno-Typist on ad hoc basis and is discharging the duties of the post, he has to be paid salary admissible to a Steno-Typist. In this connection, learned counsel for the petitioner further submitted that petitioner is discharging the duties of Steno-Typist in the Collectorate, Araria right from the year 1990 and such fact is also found mentioned in the order dated 10.8.2007 as well. It is also submitted that in the light of the satisfactory service rendered by the petitioner as Steno-Typist, he was first appointed on Class IV post under order dated 18.12.1999, Annexure-6, but continued to discharge the duties of Steno-Typist, as such, condition imposed upon the petitioner that he shall be paid the salary of Class IV post and not of the Steno-Typist until his services are regularized is wholly arbitrary for the reason that it is for the failure of the authorities to complete the appointment process for filling up the sanctioned vacant post of Steno-Typist in the Collectorate, Araria for which requisition was sent to the Staff Selection Commission under letter No. 549/E dated 8.8.2006, Annexure-B to the supplementary counter affidavit, regular appointment of Steno-Typist has not been made for which petitioner cannot be held responsible. 5. Counsel for the State has opposed the submission. 5. Counsel for the State has opposed the submission. He states that order, bearing Memo No. 608 dated 10.8.2007 by which petitioner has been appointed as Steno-Typist on ad hoc basis with stipulation that he shall not be paid salary of the post of Steno-Typist, has not been brought on record and no written prayer been made to quash any part of the said order, this Court should be slow in entertaining the challenge, which has been verbally made by the learned counsel for the petitioner. Learned counsel for the State further submitted that order dated 10.8.2007 was issued five years earlier and petitioner having not challenged the same, he cannot be permitted to challenge the same at this belated stage. Further submission, which the learned counsel for the State made is that stipulation to the effect that petitioner will not claim salary of the Class III post of Steno-Typist has been inserted in the order dated 10.8.2007 on the basis of the affidavit of the petitioner and such being the position, this Court should not strike down such stipulation as the same was included in the order at the behest of the petitioner. 6. Initially the writ petition was filed for a direction to the State-respondents to appoint the petitioner on Class III post of Steno-Typist as also to pay him the salary of Class III post i.e. Steno-Typist with effect from 27.12.1999, as according to the petitioner, he was discharging the duties of the said post from earlier and continued to perform the duties of Steno-Typist even after appointment as Peon. Having noticed the two earlier orders of the High Court dated 28.8.1993 and 6.8.1999, Annexures-1 and 4 to the writ petition, this Court under order dated 23.7.2007 directed the State-respondents to file counter affidavit with regard to compliance of the orders passed by this Court dated 6.8.1999, Annexure-4. Having noticed the two earlier orders of the High Court dated 28.8.1993 and 6.8.1999, Annexures-1 and 4 to the writ petition, this Court under order dated 23.7.2007 directed the State-respondents to file counter affidavit with regard to compliance of the orders passed by this Court dated 6.8.1999, Annexure-4. In response to the said direction, Respondent no.5 filed supplementary counter affidavit stating in paragraph 5 that in the light of the direction of the High Court contained in order dated 6.8.1999, Annexure-4, instructions were sought from the Personnel and Administrative Reforms Department of the State Government under letter No. 1447 dated 30.5.2001, which was replied under letter No. 5218 dated 6.9.2001, Annexure-7 to the writ petition and in the light of reply rendered, petitioner has been appointed as Steno-Typist on ad hoc basis in anticipation of regularization by the Personnel and Administrative Reforms Department of the State Government, the petitioner, however, shall not claim pay scale of the Steno-Typist until he is regularized on the said post. While making averments in paragraph 5 of the supplementary counter affidavit, it was expected of Respondent no.5 to have annexed the copy of the order dated 10.8.2007 about which statement was made in the said paragraph. Respondent no.5 having not placed the order dated 10.8.2007 on record of the High Court, this Court had to ask the petitioner to produce the order so as to appreciate the contents of the order dated 10.8.2007. State-respondents having themselves not produced the order dated 10.8.2007 passed by them in compliance of the order of the High Court, in my opinion, cannot raise the plea that such order has not been brought on record by the petitioner. Having passed the order dated 10.8.2007 and relied upon in the supplementary counter affidavit filed in compliance of the orders of the High Court dated 23.7.2007, it was the duty of the answering respondents to have placed the order dated 10.8.2007 on the record of the writ case. Respondent no.5 having not placed the order dated 10.8.2007 on the record of the High Court cannot be allowed to raise the submission that such order has not been brought on record by the petitioner and State is taken by surprise and put to disadvantage at the instance of the petitioner by producing the order dated 10.8.2007 on demand made by this Court. In view of my observation above, the submission of the learned AAG-2 that this Court without giving opportunity to Respondent no.5 to rebut the contents of the order dated 10.8.2007 cannot consider its validity or part thereof is wholly misconceived. 7. Other submission that petitioner is challenging the part of the order dated 10.8.2007 after five years of its issue is also equally misconceived as right from the time he has been engaged in the year 1990, petitioner is discharging the duties of the post of Steno-Typist, but is being paid the wages of Class IV post and highlighting such fact he has filed not only this writ petition, but two earlier writ petitions in which direction was given to the authorities to make appointment on sanctioned vacant post of Steno-Typist. In compliance of such direction, the authorities took steps for filling up sanctioned post of Steno-Typist but could not complete the selection process as requisition submitted for the purpose to the State Staff Selection Commission dated 8.8.2006, Annexure-B to the supplementary counter affidavit could not be acted upon and thereby petitioner continued to suffer as he was discharging the duties of Steno-Typist but being paid the wages/ salary of Class IV post. When the authorities in compliance of the order of the High Court dated 6.8.1999, Annexure-4 proceeded to appoint the petitioner as Steno-Typist on ad hoc basis, they asked for affidavit from the petitioner that he would not claim the salary of Steno-Typist until he is regularized. Petitioner discharging the duties of Steno-Typist and anxious to secure such appointment submitted affidavit on the dotted lines as was directed by the authorities. Petitioner, in my opinion, had no option but to submit such affidavit as was directed by the authorities. When such fact was brought to my notice, I am reminded of the passage in the judgment of Hon’ble Supreme Court in the case of Central Inland Water Transport Corporation Ltd. And another Vrs. Brojo Nath Ganguly and another, reported in AIR 1986 Supreme Court 1571, paragraph 90, which is quoted hereinbelow for ready reference: “(90) Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should they still continue to cling to outmoded concepts and outworn ideologies? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of nineteenth-century theories? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under foot the rights of the weak? We have a Constitution for our country. Our judges are bound by their oath to “ uphold the Constitution and the laws”. The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution Guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and conforms to the mandate of the great equality clause in Art.14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a 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 apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in a prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today’s complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and unreasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.” 8. Learned counsel for the State, however, submitted that aforesaid passage has been rendered in the light of Rule 9(i) of the Central Inland Water Transport Corporation Ltd. Service Discipline and Appeal Rules, 1979, which empowered the Corporation to terminate the employment of a permanent employee on three months notice on either side. While holding such rule to be arbitrary, Hon’ble Supreme Court made aforequoted observations and with reference to the said observation, it was submitted that petitioner having given the undertaking on his own aforequoted observation will have no application to the case of the petitioner. I regret not to accept such submission in view of the fact that petitioner is discharging the duties of Steno-Typist from 1990. I regret not to accept such submission in view of the fact that petitioner is discharging the duties of Steno-Typist from 1990. In recognition of such fact he is seeking appointment as Steno-Typist which has been granted on ad hoc basis as the authorities are not able to complete the selection process for the failure of the State Staff Selection Commission to act upon the requisition dated 8.8.2006, Annexure-B to the supplementary counter affidavit. For ensuring compliance of the order dated 6.8.1999, Annexure-4 petitioner was asked to furnish affidavit that he shall not claim salary of the post of Steno-Typist until his appointment is regularized by the Personnel Department of the Government. Relying on the affidavit petitioner was appointed Steno-Typist under order dated 10.8.2007 with stipulation that he shall not claim salary of Steno-Typist until his appointment is regularized by the Personnel Department of the Government. Instruction given by Respondent no.5 to the petitioner to furnish affidavit that he shall not claim pay and allowances admissible to the post of Steno-Typist until his services are regularized as Steno-Typist, was acted upon by the petitioner because instruction to furnish such affidavit was given by the employer i.e. mighty State and petitioner being a weak employee had no option but to comply such instruction to furnish the affidavit on dotted lines. Even otherwise petitioner having been appointed as Steno-Typist may be on ad hoc basis is entitled for payment of salary of the post of Steno-Typist, stipulation to the contrary to receive the salary of Class IV post may be on his affidavit is violative of Articles 16, 39(d) of the Constitution and cannot be acted upon. 9. In the circumstances, I have no option but to quash the stipulation in the order, bearing Memo No. 608 dated 10.8.2007 that petitioner will not get the salary and allowances admissible to a Steno-Typist until his services are regularized as Steno-Typist. Petitioner having been appointed as ad hoc Steno-Typist on 10.8.2007 should be paid the salary and allowances of the post of Steno-Typist with effect from that date and prior thereto during the period between 27.12.1999 till 10.8.2007 he be paid additional 20% officiating allowance as per his request contained in representation dated 21.3.2005, Annexure-A to the counter affidavit. 10. The writ petition is, accordingly, allowed to the extent indicated above.