IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.815 of 1998 1. The State of Bihar. 2. The District Magistrate, Aurangabad. 3. The Superintendent of Police, Aurangabad. 4. The Sub-Divisional Magistrate, Aurangabad. 5. The Officer-in-Charge, Rishiup Police Station, District- Aurangabad. Versus Dilip Singh, S/o Late Naresh Singh, Resident of village- Sandsa, P.S. Rishiup, District- Aurangabad. ----------- 15- 29.07.2009 Heard Mr. Roy Shivajee Nath for the appellants, and Mr. Aditya Narain Singh for the respondent. The State of Bihar has preferred this appeal under Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the order dated 12.2.1998, passed by a learned Single Judge of this Court in C.W.J.C. No.793 of 1998 (Dilip Singh Vs. State of Bihar and others), whereby the writ petition was disposed of and the respondent authorities were directed to take steps accordingly. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. It appears to us that the sole respondent had preferred the writ petition for a direction to the respondent authorities to pay salary due to him since the date of initial appointment on 31.5.1989 as Chaukidar, till the date of institution of the writ petition. The writ petition was disposed of by the aforesaid order. It appears to us on a perusal of the same that the writ petition was 2 disposed of on the basis of concession made by the learned Government Counsel that the writ- petitioner was, on the date of the order, working as Dafadar. The learned Single Judge, therefore, stated that the petitioner’s continuance as Dafadar was not in dispute and was, therefore, proceeded to grant relief. 3. The appellants have stated in this appeal that the learned Government Counsel had no instructions to make the concession. It is further stated that the correct position is that the writ petitioner had never worked in any capacity at all. The writ petition was allowed because of an unauthorised and uninformed concession made by the learned Government Counsel. By order dated 18.9.2000, passed by a Division Bench of this Court in the present appeal, the appellants herein were directed to file a counter affidavit to the writ petition personally sworn by the District Magistrate. On a consideration of the counter affidavit, the Division Bench directed for stay of operation of the order of the learned Single Judge. 4. We have perused the materials on record and considered the submissions of learned counsel for the parties. It appears to us that the learned Government Counsel had no instructions to make the concession before the learned Single Judge that the writ petitioner was working as Dafadar. Once concession is declared to be ultra- 3 vires, the entire basis of the order of the learned Single Judge goes. When the substratum is gone, where is the question of the super structure. In that view of the matter, we set aside the order dated 12.2.1998, passed by the learned Single Judge in C.W.J.C. No.793 of 1998. 5. Learned counsel for the writ petitioner has submitted before us that the writ petition may be disposed of on merits by the present Bench. We found it difficult to dispose of the writ petition on merits, because it raises issues of facts. 6. In that view of the matter, we direct the writ petitioner to submit an appropriate representation before the Superintendent of Police, Aurangabad, who shall dispose of the same on merits and by a reasoned order. He shall also ensure supply of a copy of the order to the writ petitioner. This Court will be pleased if the final order is passed within a period of three months of the date of submission of the representation. 7. This appeal is accordingly disposed of. (S K Katriar, J.) (Jyoti Saran, J.) S.K.Pathak/