MAHESH JHA Vs. THE STATE OF BIHAR AND ANOTHER

JUDGEMENT

(1.) In this application under Arts. 226 and 227 of the Constitution the petitioner has prayed for quashing Annexures 2 and 4 to the writ case. By Annexure 2 the learned District Magistrate, Muzaffarpur (respondent 3V has terminated the service of the petitioner as Dafadar of Beat No. 2 of Minapur Police Station. By Annexure 4 the learned Commissioner, Tirhut Division. Muzaffarpur (Respondent 2) has affirmed the order of the learned District Magistrate.

(2.) It appears that the post of Dafadar of this beat fell vacant in the month of July, 1976. on the death of one Ram Ekbal Singh. Thereafter, applications for the post of Dafadar were filed and the petitioner and respondent 5 also applied for the post. It may be mentioned here that respondent 5 is the son of earlier Dafadar, Ram Ekbal Singh. The Superintendent of Police. Mazaffarpur (Respondent 4) to whom the power to appoint Dafadars was delegated by the District Magistrate, Muzaffarpur quite sometime ago, appointed the petitioner to the post of Dafadar on the 18th July, 1977 (vide Annexure 1 to the writ case). Thereafter, respondent 5 went up in appeal before the District Magistrate. Muzaffarpur. It seems that several dates were fixed bv the District Magistrate, Muzaffarpur for hearing of the appeal. On 19-4-1978 the petitioner applied for time and the District Magistrate, Muzaffarpur, under the mistaken impression that the petitioner had been praying for t'me On earlier occasions also, although no such prayer had been made by the petitioner earlier, rejected the petitioner's prayer and passed an ex parte order without hearing the petitioner, and appointed respondent 5 as Dafadar. Against this order of the learned District Magistrate the petitioner moved the learned Commissioner, Tirhut Division, Muzaffarpur who. by his order dated 25-2-1981 dismissed the petition filed by the petitioner and affirmed the order of the learned District Magistrate, Muzaffarpur. It is pertinent to note here that on the date of admission of the revision application i. e. 19-6-1978 the learned Commissioner held as follows:

(3.) Learned counsel for the petitioner has firstly submitted that the District Magistrate, the appointing authority under Sec. 35 Village Chaukidari Act, 1870 (Bengal Act VI of 1870) having delegated his power to appoint under Sec. 3-A of the Act to the Superintendent of Police and the delegatee (Superintendent of Police) having exercised that power and having appointed the petitioner to the post of Dafadar, the District Magistrate, the delegatee could not sit in appeal over the order passed by the delegatee. (Superintendent of Police) as it involved conflict of jurisdiction. Admittedly there is no power of appeal with the District Magistrate. Secondly, the learned counsel for the petitioner submitted that the initial defect in the order of the learned District Magistrate could not be cured in law by the learned Commissioner. Thirdly, the learned counsel has submitted that the appointment being valid and substantive in character the petitioner could not be removed except complying with the provisions of Art. 311 of the Constitution and lastly, the learned counsel has submitted that the petitioner having been removed on the ground of "residence" and "relationship" the grounds, in law. must be treated to be non est and unconstitutional and has submitted that Rr. 22 and 28, Bihar Chaukidari Manual, should be interpreted in such a way that they do not abrogate the fundamental right.