IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.4705 of 1997 AMAR SINGH, son of late Shiv Nandan Singh (since dead substituted by his legal representatives), resident of village Olha Bazar, P.O. Mehta Tola, P.S. Harshidi, District East Champaran, Motihari … Petitioner Versus 1. THE STATE OF BIHAR through the District Magistrate, Motihari 2. The Superintendent of Police, Motihari 3. The Sub Divisional Officer, Areraj, East Champaran … Respondents ----------- 11. 19.5.2011 Heard Mr. Binod Kumar Singh, learned counsel for the petitioner and the learned counsel for the State. The prayer made by the writ petitioner Shiv Nandan Singh (since dead) when this writ application was filed on 15.5.1997 had read as follows: “That this is an application on behalf of the petitioner for issuance of a writ of mandamus or writ in the nature thereof or any other appropriate writ/order/ direction commanding the respondent authorities to declare the services of the petitioner permanent or regularize it, on the post of Dafadar at Beat No.II of Harshidi Thana in the District of East Champara. This writ application is also for the salaries from January 1990 which are not being paid to him although the petitioner is 2 working on the post. It has to be noted that during the pendency of this writ application the original petitioner Shiv Nandan Singh had died on 9.12.2005 and his son, the present petitioner Amar Singh has been substituted in his place. The substituted petitioner, therefore, has now continued with the relief of seeking permanency or regularization of service of his father on the post of Dafadar as also for payment of salary for the period January, 1990 onwards. Learned counsel for the petitioner would submit that the father of the substituted petitioner, the original petitioner, was appointed as a Dafadar after his father late Indrasan Lal had died in the year 1964 and therefore, when the services of all the Chaukidar/ Dafadar were sought to be regularized in the year 1990, the father of the petitioner also ought to have been regularized in service. The respondents in this case have filed a counter affidavit wherein it has been stated that one Indrasan Lal was working as a Dafadar at Beat No.II of 3 Harsidhi Police Station and he had retired from service in the year 1964 without nominating any of his male heir to work on his post. It has been categorically asserted that Indrasan Lal had never nominated the father of petitioner namely Late Shiv Nandan Singh for being appointed on the post of Dafadar and that the father of the petitioner started working on daily wages as Dafadar at the instance of the local police. The specific assertion of the respondents in this regard is that there can be no direct appointment on the post of Dafadar and that the initial appointment has to be only made on the post of Chaukidar and that too by the Selection Committee headed by the District Magistrate. Counsel for the State has submitted that the entire cock and bull story is accordingly fit to be rejected, especially when there is complete lack of any proof of nomination in favour of the original writ petitioner Late Shiv Nandan Singh and that it is also not correct to say that the Superintendent of Police, Motihari who had apponted the father of the petitioner on the post of Dafadar, was not 4 authorized to do so. The first and foremost question, therefore, would be as to whether the engagement of the father of the petitioner namely Late Shiva Nandan Singh on the post of Dafadar was a valid appointment in the eye of law so as to vest any right on the father of the petitioner for being regularized in the Government service in the year 1990. As noted above, the case of the petitioner while projecting the relief claimed by his deceased father, the original farther, is that his engagement was made by the Superintendent of Police. The respondents in this regard have taken a categorical stand that the competent authority who could have made such appointment on the post of Chaukidar/ Dafadar is the District Magistrate and that no one else including S.P., Motihari had been ever delegated such power of making appointment on the post of Chaukidar/Dafadar. Counsel for the petitioner would however submit that there are large number of cases where the Superintendent of Police 5 had made such appointment on the post of Chaukidar/ Dafadar whose services have also been regularized and therefore, the appointment of Late Shiva Nandan Singh, the father of the petitioner cannot be faulted only because it was made by the Superintendent of Police, Motihari. In the considered opinion of this Court if the Superintendent of Police, Motihari was not authorized to do so and he had appointed Late Shiva Nandan Singh as the Chaukidar/ Dafadar in violation of the provisions made in Section 3 of the Village Chaukidari Act, 1870 that cannot be condoned by this Court by relying on some other cases where the Superintendent of Police may have made such unauthorised appointment. Section 3A of the Act in very categorical terms lays down that the District Magistrate alone may from time to time by an order in writing delegate his powers under the Act, either wholly or in part, to any Magistrate of the first class subordinate to him, or to any Magistrate in charge of a subdivision or to the District Superintendent of Police, and by a like order may withdraw such delegate 6 powers with regard to appointment on the post of Chaukidar/ Dafadar in terms of section 3 of the Act. A question, therefore, will arise that if there was no such delegation ever made by the respondents and when no such order of delegation of power to Superintendent of Police has been produced by the petitioner can this Court issue a writ of mandamus directing for regularization of services of father of the petitioner. An illegality committed by the Superintendent of Police Motihari in absence of delegation of power cannot be perpetuated by this Court for regularization of the service of the father of the petitioner and therefore, this Court would find it difficult to allow the first part of the relief prayed by Late Shiva Nandan Singh, the original petitioner now sought to be claimed by his son, the substituted petitioner. As with regard to the other grievance relating to payment of salary this Court can only observe that if there be admitted document showing proof of working of Late Shiva Nandan Singh, the father of 7 the petitioner, the competent authority will take an appropriate decision for payment of salary of the father of the petitioner for the admitted period of work done by him. In this context it must be also noted here that in the counter affidavit the working of the father of the petitioner has not been controverted and on the other hand, it has been stated that his salary was paid upto 1989 but after 17.1.1990 the payment was stopped on account of the fact that taking of any work from the Dafadar without proper appointment was banned. This Court, therefore, would direct the District Magistrate of the East Champaran District to look into this aspect as with regard to proof of working of the father of the petitioner namely Late Shiva Nandan Singh and if it is found that even though the services of the father of the petitioner were not regularized but work was still taken from him the substituted petitioner being son, will be allowed to receive such payment of arrears of unpaid amount of salary for the admitted work done by his father. This exercise must be completed by 8 the District Magistrate within a period of three months from the date of receipt/ production of a copy of this order. This application is, accordingly, allowed in part only to the extent indicated above. (Mihir Kumar Jha,J.) Surendra/