IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.177 of 2011. 1.The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna. 2.The Principal Secretary, Personnel and Administrative Reforms Department, Old Secretariat, Bihar, Patna. 3.The Deputy Secretary, , Personnel and Administrative Reforms Department, Old Secretariat, Bihar, Patna. 4.The Principal Secretary, Department of Finance, Govt. of Bihar, Old Secretariat, Bihar, Patna. 5.The Agriculture Production Commissioner, Department of Agriculture, New Secretariat, Bihar, Patna. 6.The Special Secretary, Department of Agriculture, New Secretariat, Bihar, Patna. ……………. Appellants. Versus 1. Sujit Kumar Sinha son of Sri Deo Nath Sinha, R/o Mohalla Naya Tola, Saguna P.S. Danapur, District Patna. 2.The Administrator, Bihar State Agriculture Marketing Board (Abolished), Pant Bhawan, Biley Road, Patna……… …………….. Respondents. ----------- 7. 11.07.2011 Heard the parties. The State of Bihar has preferred this Letters Patent Appeal against the judgment and order dated 5th April 2010 whereby the writ petition bearing C.W.J.C.No. 5494 of 2010 preferred by the Respondent No.1 was disposed of on the basis of a Divison Bench Judgment of this Court in the case of Mahesh Prasad Singh Vs. The State of Bihar, reported in 2010(1) PLJR 768. The learned writ court set aside the order terminating the services of the writ petitioner by refusing him absorption in the services of State of Bihar, vide order dated 5th March 2010 (Annexure-18 to the writ petition). The writ court issued a further direction to reinstate the petitioner in the service of the State Government, in the same status and in the same post on which he was serving on the date of dissolution of the Board. 2 Learned counsel for the appellants has submitted that the order under appeal was passed on the 1st day when the writ petition was taken up without granting opportunity to the State and the other respondents to file counter affidavit. The main grievance of the appellants is that the writ petitioner cannot be given advantage of the judgment noted above, because the petitioners in those cases, namely, Mahesh Prasad Singh and Dinesh Prasad Singh were occupying their posts not as daily wagers and the facts of those cases, as noted in the judgments will distinguish the case of the writ petitioner, as he is daily wager and there was no change in his status. According to the appellants, another Division Bench judgment of this Court in the case of Nand Kumar Vs. The State of Bihar reported in 2010(1) PLJR 763 relating to daily wage employees of the dissolved Bihar State Agriculture Marketing Board will apply to the case of the writ petitioner and, hence, the relief of reinstatement or absorption could not have been granted to him. On the other hand, the learned Senior Counsel appearing for the writ petitioner has submitted that the case of the writ petitioner stands on same footing as that of Mahesh Prasad Singh and Dinesh Prasad Singh and it would be a mistake to describe him as a daily wage employee and on facts he is also entitled to the benefit of the Division Bench Judgment in the case of Mahesh Prasad Singh (supra). On going through the order under appeal, we find that the aforesaid issue has not been raised or considered. We find that in order to decide the issue raised on behalf of appellants, it would be necessary to go into the facts which were not before the writ court as the matter 3 was decided on the first day itself, under an impression that there was no dispute of facts. In the interest of justice we set aside the order under appeal and remit the matter back to the learned writ court with a request to rehear the parties and redecide the matter in the light of the issues raised on behalf of the appellants. It goes without saying that now when the appellants have all relevant facts with them, they shall file a counter affidavit in the writ proceeding and the writ petitioner will also be entitled to file rejoinder, if any, so as to enable the writ court to decide the issue in the light of all the relevant facts. There is no dispute that after setting aside the order impugned before the writ court dated 5th March 2010 (Annexure-18) the writ petitioner has been reinstated in service and at present he is working. In order to give an opportunity to the writ petitioner afresh for making a prayer for stay of the order dated 5th March 2010 in the light of subsequent development, it is directed that the service of the writ petitioner shall not be disturbed for a period of 8 (eight) weeks or till the matter is listed before the writ court for the first time for admission, whichever is earlier. It will be for the writ court to decide on the basis of materials available before it whether the interim relief should be granted to the writ petitioner or not. The appeal is allowed to the aforesaid extent. Jay/ ( Shiva Kirti Singh,J) ( Shivaji Pandey,J)