High Court Patna High Court - Orders

Bharat Das vs The State Of Bihar & Ors on 11 November, 2011

Patna High Court – Orders
Bharat Das vs The State Of Bihar & Ors on 11 November, 2011
                   IN THE HIGH COURT OF JUDICATURE AT PATNA
                                    CWJC No.10821 of 2010
         1. Bharat Das S/O Ram Yatan Das R/O Village + P.O.- Naudiha,
         P.S. Khizarsarai, In The District Of Gaya
                                  Versus
         1. The State Of Bihar Through The Principal Secretary Panchayati
         Raj Department, Government Of Bihar, Patna
         2. The District Magistrate Cum Collector, Gaya
         3. The District Panchayat Raj Officer, Gaya
         4. The Sub-Divisional Magistrate Cum Sub-Divisional Officer
         Nimchak Bathani Sub-Division At Khizarsarai, In The District Of
         Gaya
         5. The Block Development Officer Khizarsarai, In The District Of
         Gaya
         6. The Circle Officer, Khizarsarai, In The District Of Gaya
         7. The Nodal Officer Cum Circle Inspector Khizarsarai In The
         District Of Gaya
         8. The Gram Kachahari, Naudiha, Through Its Sarpanch Under
         Khizarsarai Block In The District Of Gaya
         9. The Sarpanch, Gram Kachahari Naudiha Under Khizarsarai
         Block, In The District Of Gaya
         10. Mewalal Das S/O Ram Lagan Das R/O Vill.- Naudiha, P.O.
         Naudiha, P.S. Khizarsarai, In The District Of Gaya
                                              -----------

3. 11.11.2011 Heard learned counsel for the petitioner and

the State.

The writ application was filed on 13.7.2010

after serving two copies in the office of the Advocate

General. Despite a passage of nearly one and a half

year no counter affidavit has been filed by the

respondents. The Court is not inclined to accede to

the prayer for adjournment for that purpose so

belatedly. The respondents have had more than

reasonable time from the date of filing of the writ

application to assist this Court in dispensation of

justice, a constitutional obligation under Chapter-4 of
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the Constitution, by filing a counter affidavit.

The petitioner is aggrieved by the order

dated 11.5.2010 of the Anchal Adhikari, Khizarsarai

cancelling his own earlier order dated 20.4.2010

appointing the petitioner as Sachiv, Gram Katchery

after cancelling the appointment of Shree Mewalal

Das. The ground mentioned in the impugned order is

that the Anchal Adhikari had no authority to issue

such an order.

Learned counsel for the petitioner submits

that in pursuance of the orders of this Court in

C.W.J.C. No. 11063 of 2008 preferred by the petitioner

against wrong denial of appointment, the matter was

enquired into and on 28.2.2010 the Anchal Adhikari-

cum-Block Development Officer concluded that the

petitioner had higher marks than Shree Mewalal Das

and was therefore entitled to appointment leading to

the order dated 20.4.2010. Under the Bihar Gram

Katchery Secretary (Employment, Service Condition

and Duty) Rules, 2007 the Block Development Officer

as the Nodal authority was statutorily empowered to

examine eligibility for appointment, verification of

documents and to issue appointment orders.

Counsel for the State submits that the

Anchal Adhikari has opined that he was not
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competent to issue the appointment order and even

according to the petitioner it was the Block

Development Officer who alone could do so.

To examine the matter substantively the

Court finds that his eligibility was examined at a point

of time when the Anchal Adhikari de facto possessed

the power of the Block Development Officer. Applying

the principles of de facto exercise of power on the date

that he was held validly entitled to appointment i.e.,

28.2.2010, the power was exercised by the Anchal

Adhikari in duality in that of the Block Development

Officer. Once the statutory authority came to the

conclusion about the validity of his claim for

appointment, other matters become procedural.

In absence of any counter affidavit and the

lack of information available whether Shree Mewalal

Das finally accepted the order dated 20.4.2010 of his

termination or whether he questioned the same

successfully or unsuccessfully, the order dated

11.5.2010 with regard to the petitioner is set aside

subject to that condition.

                       The         writ     application              stands        allowed

           conditionally.


P. Kumar                                                   ( Navin Sinha, J.)