Judgment Sachchidanand Jha, J. 1. These two writ petitions involve the same controversy and as such have been heard together. This judgment will govern both of them. 2. One Ambika Singh was the Dafadar of Circle No. 4 of Pakaribarawan P. S. within the district of Nawadah. On 12-5-1983 he was removed from the post by order of Superintendent of Police on the ground of old age and incapacity. Md. Samo Khan, petitioner in C.W.J.C. No. 5253 of 1984 was appointed as the Dafadar in his place on the same date. Ambika Singh sub-mitted representation before the District Magistrate, who by his order dated 13-7-1984 set aside the order of the Superintendent of Police and reinstated Ambika Singh. An office order was, accordingly, issued by the Superintendent of Police on 13-11-1984 appointing Ambika Singh. It would appear from the said order that the previous order dated 12-5-1983 appointing Samo Khan as the Dafadar was cancelled on the ground that the same had not been approved by the District Magistrate. Samo Khan challenged the said order in C.W.J.C. No. 5253 of 1984. During the pendency of the writ petition Ambika Singh retired sometime in March 1987. On 16-10-1987 Samo Khan was appointed as the Dafadar, although on temporary basis. Bishundeo Singh, son of Ambika Singh, objected to the appointment of Samo Khan and filed a representation before the District Magistrate. He also approached this court in C.W.J.C. No. 557 of 1988 which was disposed of on 11-3 1988 with a direction to dispose of said representation. The District Magistrate rejected the representation by his order dated 21-4-1988 which has been challenged by Bishundeo Singh in C.W.J.C. No. 5767 of 1983. 3. Mr. Jayanandan Singh, learned Counsel for the petitioner in C.W.J.C. No. 5767 of 1988, submitted that according to the prevalent custom the son or the member of the family of the previous Dafadar has pre-existing right to the office. It was pointed out that in 1987 the State Government had taken a policy decision to appoint the nominee of the previous Chaukidar/Dafadar on his retirement. Reliance in this connection has been placed on Annexure 4, which is a kind of memorandum of agreement. No Government order within the meaning of Article 166 of the Constitution, however, was brought to my notice. Reliance in this connection has been placed on Annexure 4, which is a kind of memorandum of agreement. No Government order within the meaning of Article 166 of the Constitution, however, was brought to my notice. learned Counsel also submitted that both the Superintendent of Police and the District Magistrate have committed error in giving weightage to Samo Khan on the ground of his past experience during his first appointment between 12-5-1983 and 13-11-1984. 4. The plea that the son or other descendant of the provious Dafadar or Chaukidar has got pre-existing right to the post in the teeth of Article 16(2) of the Constitution. That Article lays down that no citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of any employment or office under the State. The Supreme Court in Gazula Dasaratha Rama Rao V/s. State of Andhra Pradesh & Ors. -- had the occasion to consider a similar plea while examining the provisions of Sec. 6(1) of the Madras Hereditary Village-Offices Act, 1895. The relevant part of the said provision was in the following terms: ...and, thereupon, all hereditary village-offices (of the classes defined in Sec. 3, clause (1) of this Act) in the villages or portions of villages or village grouped amalgamated or divided as aforesaid, shall cease to exist and new offices, which shall also be hereditary shall be created for new village or villages. In choosing persons to fill new offices, the Collector shall select the persons whom he may consider the best qualified from among the families of the last holder of the offices, which have been abolished. Their Lordships held that the office of the village Munsif, as it was called, is an office under the State and, therefore, within the ambit of clauses (1) and (2) of the Article 16 of the Constitution. The point in isssue was decided in these words: The real question--is that the custom which is recognised and regu. lated by the Act consistent with the fundamental right guaranteed by Article 16. We do not agree with learned Counsel for respondent No. 4 that the family had any pre-existing right to property in the shape of the emoluments of the office, independent or irrespective of the office. lated by the Act consistent with the fundamental right guaranteed by Article 16. We do not agree with learned Counsel for respondent No. 4 that the family had any pre-existing right to property in the shape of the emoluments of the office, independent or irrespective of the office. If there was no such pre-existing right to property apart from the office, then the answer must clearly be that Article 16 applies and Sec. 6 (1) of the Act in so far as it makes a discrimination on the ground of descent only, is violative of the fundamental right of the petitioner. 5. The legal position in the instant case is still worse from the point of view of the petitioner. In view of a Bench decision of this court in Rajpati Dubey V/s. State of Bihar, 1973 BLJR 558, there cannot be any doubt that Dafadar or Chaukidar holds a civil post under the State and he is even entitled to protection of Article 311 of the Constitution. If an express provision of statute was not sustained on the ground that it contravenes the fundamental right of a citizen it is difficult to uphold the same very plea based on custom. In the same very decision it has also been held that even if there was a custom having the force of law within the meaning of Article 13, the same must yield to fundamental right, Annexure 4 relied upon by the petitioner is nothing but a memorandum of agreement and in its material part runs contrary to the constitutional guarantee as set-forth in Article 16. No person can claim appointment on the post of Dafadar or Chaukidar only on the ground that he is the son or descendant of the previous incumbent. That may be a relevant consideration but cannot be the sole consideration. In my view, therefore, the plea has to be rejected as ill conceived. 6. As regards the second contention it was pointed out that the order passed by Superintendent of Police on 12-5-1983 removing Ambika Singh from the post of Dafadar and appointing Md. Samo Khan in his place was with-out jurisdiction and, therefore, the experience earned by him on the basis of that appointment cannot confer any legal right upon him. This submission too, in my opinion, is devoid of any substance. Samo Khan in his place was with-out jurisdiction and, therefore, the experience earned by him on the basis of that appointment cannot confer any legal right upon him. This submission too, in my opinion, is devoid of any substance. It is not in dispute that although the power of making appointment on the post of Dafadar or Chaukidar vests in the District Magistrate under the Village Chaukidar Act, 1870, this power is subject to delegation and in fact, has been delegated to the Superintendent of Police under Sec. 3-A of that Act. Therefore, the Superintendent of Police had valid authority to make appointment or remove from the post. Once as a delegatee he has exercised that power, the delegator, namely, the District Magistrate could not have exercised the same power, which he purported to do while setting aside the order of the Superintendent of Police dated 12-5-1983 and directing reinstatement of Ambika Singh, on 13-11-1984 as noted above. Reference in this connection may be made to a Bench decision of this Court in Mahesh Jha V/s. State of Bihar, 1984 PLJR 34. Thus, if any weightage was given to Samo Khan on the basis of his work experience during the relevant period while considering his case for appointment, that cannot be said to be illegal or arbitrary. 7. In the result, I find no merit in CWJC No. 5767 of 1983 and the the same is, accordingly, dismissed. Since Md. Samo Khan has already been appointed Dafadar during the pendency of the case his writ petition, namely, CWJC No. 5253 of 1984 has become infructuous and same is also, accordingly dismissed. In the circumstances there will be no order as to costs.