P.P.BHATT, J. - (1.) BY Court: The petitioner, by way of this writ petition under Article 226 of the Constitution of India, has prayed for quashing the letter under Memo No. 209 dated 1.8.2001 issued by respondent No. 4, where by, he declined to confirm the appointment of the petitioner in the post of Dalpati. It is also prayed for issuance of necessary direction upon the respondents authority to confirm the appointment of the petitioner as Dalpati by granting other consequential benefits. It is the case of the petitioner that he was appointed as Dalpati on 20.1.1997 by the Executive Committee of Dodan Gram Panchayat and accordingly, the petitioner submitted his joining report before the Block development Officer, Ghagra and since then has been working to the said post. It is also submitted that by letter No. 642 dated 30.5.97, the B.D.O. Ghagra recommended the case of the petitioner for confirmation before respondent No. 4, thereafter, vide a letter No. 209 dated 1.8.2001, respondent No. 4 declined to confirm the appointment of the petitioner as Dalpati. It is further submitted that on 4.9.2001 the petitioner submitted representation requesting the authorities concerned for confirmation of his appointment to the post of Dalpati. Since there is no positive response from the respondent authorities, the petitioner has approached this Court by filing the present petition. Learned counsel for the petitioner, by referring counter affidavit filed by the respondent State mare particularly, para 7 of the said counter affidavit, submitted that according to the respondents after the enforcement of Bihar Panchayati Raj (Amendment) Act, 1995, there is no provision of appointment of Dalpati and therefore, the appointment of the petitioner was not confirmed and in this context, learned counsel for the petitioner by referring Jharkhand Gram Raksha Dal Niymabali, 2001 submitted that Rule 6 of the said Niymabali 2001 provides for appointment of Dalpati and Rule 29 is relevant for the purpose of deciding this matter, as this rule provides that the Dalpati appointed under Gram Raksha Dal Niyamawali 1949 prior to this Rule came into force required to be continued till their superannuation or till their appoint is made on any other post.
(2.) AS against this, learned counsel for the respondent State by referring counter affidavit filed by the State submitted that by letter No. 164 dated 9.2.1998 issued by the Secretary cum -Commissioner, Rural Development Department (Annexure -A to the counter affidavit) decision was taken by the respondent authorities that after the introduction of the 73rd Amendment the Panchyat Raj Act, 1993 which was enforced w.e.f. 23.8.1993 in the entire State, as per and Section 157 of the said Act, the old Act has already been repealed and consequently, the Gram Raksha Dal Niyamawali, 1949 automatically becomes unenforcible. Under the circumstances, no legal appointment can be done under the repealed Act. It is further submitted that in the aforesaid New Act, there is no provision regarding the Gram Raksha Dal Sangathan and the Government made this provision by Section 32 A of the Bihar Panchayat Raj (Amendment) Act, 1995, which was made effective w.e.f. 23.8.1993. It is submitted that byl etter dated 9.2.1998 it was also directed to cancel all the appointment of Dalpati made after 23.8.1993 because these appointments were illegal. Learned counsel for the State further submitted that as to whether the petitioner was allowed to work continuously, after issuance of Annexure -3 to the petition and also after issuance of Annexure -A to the counter affidavit, is required to be ascertained from the concerned authorities, as he is not having instruction in this regard. Learned counsel for the State lastly submitted that in view of the fact that the old Rules regarding appointment of Dalpati were not in force after 23.8.1993 and therefore, there is no question of making any appointment subsequent thereto and the petitioner has no legal right for continuation on the said post, subsequent thereto. It is submitted that there is no merit in this petitioner and therefore the same may be dismissed. Considering the aforesaid rival submissions advanced by the learned counsel for the parties and from perusal of the material facts of the record, it appears that the petitioner was appointed as Dalpati on 20.1.1997 by the Executive Committee of Dodan Gram Panchayat and accordingly he submitted his joining report before the Block Development Officer, Ghagra on 3.6.97. It appears that the BDO, Ghagra by letter No. 642 dated 30.5.97 recommended for confirmation of appointment of the petitioner but respondent No. 4 vide letter No. 209 dated 1.8.2001 (Annexure -3 to the petition), which is the impugned order, declined to confirm the appointment of the petitioner as Dalpati. From perusal of the reasons assigned by respondent No. 4 as well as from perusal of Annexure -A to the counter affidavit filed by respondent State and the averments made in Para 7 of the counter affidavit, it also appears that Bihar Panchayat Raj (Amendment ) Act, 1995 made effective w.e.f. 23.8.93 and consequently, the Gram Raksha Dal Niyamawali 1949 automatically becomes unenforcible after the Amendment Act of 1995. Therefore, I find substance in the submission advanced by the learned counsel for the respondent State that under the circumstances, no legal appointment can be made under repealed Act. However, it is stand of the petitioner that he is still working and discharging his duties on the post of Dalpati, since his initial appointment and therefore, in view of Rule 29 of Jharkhand Gram Raksha Dal Niyamabali, 2001, he is required to be allowed to continue his duties on the post of Dalpati as the said Rule 29 provides for continuation of Dalpati who have been appointed and working prior to the new rule came into force. Since the learned counsel for the State has no instruction about the continuity of the petitioner on the said post, this court is of the view that the matter is required to be referred to the Director, Panchayat Raj, Jharkhand for the purpose of verifying the fact regarding the present status with respect to services of the petitioner and as to whether he can be allowed to be continued after issuance of letter No. 209 dated 1.8.2001 (Annexure 3 to the petition) as well as Annexure -A to the counter affidavit as also by considering the provisions of Jharkhand Gram Raksha Dal Niymabali, 2001, more particularly, in view of Rule 6 read with Rule 29 of the Said Niyamabali 2001.
(3.) IN view of the above discussion, the matter is referred to the Director, Punchayati Raj, Jharkhand for the purpose of taking final decision in the matter by considering Rule 6 r/w Rule 29 of the Jharkhand Gram Raksha Dal Niyamawali, 2001 in context with letter No. 209 dated 1.8.2001 (Annexure -3 to the petition) as well as Annexure -A to the counter affidavit. The Director, Panchyati Raj, Jharkhand shall consider the same and take decision on this issue within three months from the date of receipt/production of a copy of this order. With the aforesaid observations and directions, this writ petition stands disposed of.;