DINESH PRASAD SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE present writ application has been filed for quashing the order dated 9.2.1998 (Annexure -1) contained in letter no. 164/PR issued by respondent no. 2, the Commissioner -cum -Secretary, Rural Development, Government of Bihar, whereby all the appointments made on the post of Dalpati after coming into force of the Bihar Panchayat Raj Act, 1993 were directed to be treated as illegal, as by several judgments this court had found the subsequent appointments to be bad. By the aforesaid letter, it was further directed that if any appointment had been made subsequent to coming of the new Act the same was to be treated as illegal.

(2.) ON the query of the court that not only the judgments which have been referred to in Annexure -1, the appointments subsequently made after coming into force of the new Act had been held to be invalid, as no such provision was there in the new Act and as a Division Bench of this court in the case of Rohtas Zila Gram Raksha Dal Sangh with so many others V/s. The State of Bihar and others reported in Bihar Law Judgments 2001 (3) 248 along with other analogous cases while considering the proposition as to whether the Bihar Panchayat Raj Village Volunteer Force Rules, 1949 was saved from repeal by virtue of section 27 of the Bihar and Orissa General Clauses Act, held that the same cannot be saved and as the Act has been superseded and a new Act has come into force the Rules framed under the old Act cannot be saved from repeal by virtue of General Clauses Act. The court while discussing the aforesaid proposition in paragraph 20 of the said judgment while comparing the similarity of the provision of section 26 of 1947 Act and section 32A of 1993 Act came to the conclusion and it was interpreted that there was inconsistency between the two provisions. The inconsistency between the two provisions is evident and manifest and hence the Bihar Panchayat Raj Village Volunteer Force Rules, 1949 cannot be saved from repeal by virtue of section 27 of Bihar and Orissa General Clauses Act.

(3.) THIS Court while interpreting the subsequent amendment in the 1993. Bihar Panchayat Raj Act by section 32A read with Rule 4 of the Bihar Panchayat Raj Village Volunteer Force Rules, 1949 came to the conclusion that the appointing authority of the Dalpati was not satisfied in 1993 Act. As such, without framing Rules under the provisions of 1993 Act, a Dalpati cannot be appointed.