IN THE HIGH COURT OF JUDICATURE AT PATNA LPA No.811 of 2005 1. THE STATE OF BIHAR through Home Secretary, Govt. of Bihar, Old Secretariat, Patna. 2. The Director General-cum-Inspector General of Police, Bihar, Old Secretariat, Patna 3. The District Magistrate East Champaran, Motihari. 4. Superintendent of Police, East Champaran at Motihari 5. Commandant, Home Guards, Bihar, Patna. 6. Battalian Commandant Home Guards, East Champaran, Motihari. 7. Deputy Superintendent of Police, Sadar, Motihari. Respondents / Appellants Versus JALESHWAR RAI son of Shri Birju Rai, Resident of village-Doma Tola, Bansh Ghat, P.S- Chaki, Dist.- East Champaran Petitioner/ Respondent. ----------- 5 26.10.2010 Heard Mr. Chandrashekhar Singh, learned Assistant Counsel to G.P.-7 for the appellants, and Mr. Utsav Kumar, Junior Counsel to Mr. Partha Sarthy. 2. This appeal under Clause 10 of the Letters Patent of High Court of Judicature at Patna raises a grievance with respect to the order dated 18.3.2005, passed by a learned Single Judge of this Court whereby C.W.J.C. No. 2748 of 2000 (Jaleshwar Rai Vs. State of Bihar and ors), has been allowed, and the authorities have been directed to make payment of the salary of the constable petitioner since October 1986. 3. A brief statement of facts essential for the disposal of the appeal may be indicated. The respondent was enrolled as Home Guard under the Bihar Home Guard Act 1947, read with Bihar Home Guard Rules 1953, on 25.11.1980. Under the orders of the competent authority on 15.10.1986, he was directed to function as a constable. He continued as such till 18.03.2005, the date on which C.W.J.C. No. 2 2748 of 2000, was disposed of. He approached the authorities for payment of salary payable to a constable. The same was not granted to him leading to the said C.W.J.C. No. 2748 of 2000, which has been allowed by the impugned order. It has been held by a learned Single Judge that the respondent Home Guard did function and discharge the duties of a constable with effect from 15.10.1986. The authorities have, therefore, been directed to make payment of salary of constable with effect from 15.10.1986 till the date of the order. 4. We have perused the materials on record and considered the submissions of the learned counsel for the parties. Before we proceed further, we wish to clarify that the appellants herein had filed their counter affidavit in the writ proceedings on 18.03.2005 itself, the date on which the writ petition was disposed of. It is further evident from the records of the writ proceedings that copy of the counter affidavit was not served on the learned counsel of the writ petitioner and, therefore, the counter affidavit could not have taken into account by the learned Single Judge. The writ petitioner did not receive copy of the counter affidavit, having been filed during the course of submissions, the writ petitioner did not have the opportunity of filing rejoinder to the same. The net result is that the statement made in the writ petition stands admitted on account of non-traverse. The learned Single Judge has held that the writ petitioner did function as a constable with effect from 15.10.1986 till the date of the order. We are, therefore, of the view that the learned Single Judge has rightly allowed the claim for payment of salary of a constable because the writ petitioner functioned as such for a long period and without 3 interruption. We, therefore, do not find any ground for interference with the order of the learned Single Judge. 5. In the result, the appeal is dismissed. The writ petitioner is entitled to salary of a constable with effect from 15.10.1986 till 18.03.2005. He shall also be entitled to salary of a constable, if he has continued to function as such after 18.03.2005.He shall not be entitled to any other benefit or privilege. In the circumstances of the case, there shall be no order as to costs. (S.K. Katriar, J) M.Rahman/Anjani ( Birendra Prasad Verma, J )