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
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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.)