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 2 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 3 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.)