Judgment S.J. Mukhopadhaya, J. The petitioners in this case have challenged the order contained in Memo No. 1165 dated 7th April 1992 (Annexure 5) by which the appointment of the petitioners have been cancelled on the ground of illegal appointment after about 12 years of their service. 2. The case of the petitioners resin a narrow compass as started hereunder:- The respondent-State vide their resolution dated 15th of January 1979 laid down mode and procedure for appointment against class IV posts According to the aforeside reseintion Selection Committee at the district level were to make selection for appointment against Class IV post available in the district offices under the Excise prohibition Department of the State of Bihar. In the said year 1979 a number of posts of Excise and prohibition department in different offices vide latter dated 10th of October, 1979. Total 1267 posts were created. According to the petitioners notice was published by the deputy Commissioner Excise and Prohibition Darbhanga and Koshi division Begusarai in the year 1980 for filling up the Class IV posts of Excise Constables which where under his jurisdiction. Petitioners alongwith other applied for the said posts. They were called for interview which held on 13th of June 1980 and after the recommendation of the selection committee they were appointed to the post of excise constable wide orders contained in different letters dated 13th June 1980 (Annexure-1 series). The orders of appointment were issued by the Deputy Commissioners Excise and Prohibition Department Darbhanga and Koshi Division Begusari. 3. The petitioners thereafter joined their respective posts and continued to function but their salary was not released. It was only vide letter dated 13th of June 1981 (Annexure – 2) whom the extension relating to posts were granted salary of the petitioners and others were released from the month of June 1981. The petitioners continued to receive their salary from June 1981 on works. In the letter dated 13th of June 1981 (Annexure-2) while it was ordered to release the salary it was ordered that the payment should be release in favour of those who have been appointed prior to 30th of June 1980 and they will be getting the salary. Any appointment made niter 30th June 1980 will not be recognived. Further it was mentioned therein that the temporary posts will continue till the person appointed for prohibition purpose are not adjusted against permanent posts. Any appointment made niter 30th June 1980 will not be recognived. Further it was mentioned therein that the temporary posts will continue till the person appointed for prohibition purpose are not adjusted against permanent posts. A bar was put to make new appointment. 4. According to the petitioners, the petitioners and other consinued to function against the post of Excise Constables having been appointed prior 30th June 1980 and their services were transferred and placed at other places for their absorption against permanent post. Further according to the petitioners all the time their service remained satisfactory and when pay revision was made the salary of the petitioners was also revised it was after about 12 years when the petitioners were still continuing the res pendents came out with the impugned order dated 7th of April 1992 (Annexure – 5) stating their in that the appointments of the petitioners have been made illegally by the Deputy Commissioner Excise and Prohibition Department Darbhanga and Koshi Division Beguarai and their service have been cancelled. The order has been passed by the Commissioner cum Secretary of the Excise and Prohibition Department of the State. 5. Council for the petitioners submitted that they were interviewed selection was made by the selection Committee who declared fit and recommended the petitioners along with others and then only the orders of appointment have been issued in favour of the petitioners. It was Further contended by the council for the petitioners that no show cause notice was given to the petitioners prior to the issuance of the impugned order of cancellation of appointment dated 7th April of 1992 (Annexure – 5) is complete violation of the rule of natural justice Council for the petitioners relied on different decisions including a decision of the Hon’ble Supreme Court in the case of Puttaswamy and other Vs. The Hon’ble Justice of Karnatka High Court Banglore and other AIR 1991 SC page 295. He also submitted that the petitioners having already performed their duties for about 12 years it was not open to the respondents to re-open the matter relating legality of appointment. For this proposition the council for the petitioners relied on a decision of this court in the case of Bhairvi Nandan Mishra Vs State of Bihar and other (1994 (2) B.L.J. page 409). 6. For this proposition the council for the petitioners relied on a decision of this court in the case of Bhairvi Nandan Mishra Vs State of Bihar and other (1994 (2) B.L.J. page 409). 6. Counsel for the State submitted that the appointment of the petitioners having been made illegally there was no question of giving any show cause notice in favour of the petitioners. According to him, this matter stands settled by different decisions of this Court as well as that of the Hon’ble Supreme Court. 7. In the counter affidavit filed by the respondent-State, it was stated that the temporary vacancies of Class IV posts are to be filed up by the Excise Superintendent in accordance with the list of candidates from the panel. It was further stated there in that total number of Class IV of post which were created in the districts, vide letter dated 10th of September, 1979 (Annexure - A) all the District Officers were asked to make appointment of Excise Constable in their respective district. The Deputy Commissioner Excise and prohibition department was not empowered to make such appointment and there by the appointment was illegal. No other ground has been given by the respondent as to what specific instruction or rule which is mandatory in nature was violated when the appointment of the petitioners were made. 8. The assertion of the respondent in there counter affidavit to the district officer were directed to mate appointment against Class IV posts of Excise constable but such power was not vested with the Deputy Commissioner Excise this argument is to be rejected. The Deputy Commissioner of Excise higher authority then that of the District officers. In the District officer the collector is the head Different districts and within the control and jurisdiction of the Divisional Commissioner. The power which was vested with his sub-ordering officer automatically stand vested on him being superior officer the power of appointment being administrative in nature. The rule 3 of Bihar Boards Miscellaneous Rule also vests such power on the higher officer. Thereby if the officer the sane stands automatically vested on the superior of the like Deputy Commissioner. 9. So far as the appointment of the petitioner are concerned the same have been made after due interview and on the recommendation of the selection Committee this matter has not been denied by the respondents. Thereby if the officer the sane stands automatically vested on the superior of the like Deputy Commissioner. 9. So far as the appointment of the petitioner are concerned the same have been made after due interview and on the recommendation of the selection Committee this matter has not been denied by the respondents. The respondents had also knowledge with respect to the appointment of the petitioner will be evident from the fact that in the counter affidavit it has been stated by the respondents them selves that the information regarding appointment of the petitioners was sent to the Secretary to the Excise Commissioner vide Deputy Commissioner letter no 93 dated 13th of June 1980. If for 12 years i.e. since June 1980 up to 1992 the respondent Excise Commissioner has not acted on the basis of the same by the approving and/or disapproving such appointment so spite of his knowledge as back as in the month of June 1980, I feel that after 12 years this matter cannot be reopened. 10. At this stage it is also to be taken into note that the intimation relating to appointment of the petitioners was sent vide letter no. 93 dated 13th of June 1980. It was one year thereafter the appointment State from its Excise and prohibition department issued a letter dated 13th of June 1981 (Annexure 2). In the letter it was stated that the person appointed after 30th of June 1980 theirs services will not be recognized meeting their by the persons appointed prior to 30th of June 1980 relating to which the knowledge was there recognition was granted by the respondent-State. This letter dated 13th June 1981 (Annexure 2) the decision of the respondent State having been by the order of the Governor of Bihar the respondent Commissioner and Secretary cannot reopen the matter at this belated stage. 11. Further it is to be taken into not that according to the Government circular dated 3rd of December 1980. If any person make any illegal appointment then it is open to the respondents State to a departmental proceeding against the person who made illegal appointment. 11. Further it is to be taken into not that according to the Government circular dated 3rd of December 1980. If any person make any illegal appointment then it is open to the respondents State to a departmental proceeding against the person who made illegal appointment. In this case appointment having been made on 18th of June 1980 intimation having been sent by the Deputy Commissioner of Excise and prohibition Darbhanga and Koshi Division Begusarion as back as on 18th of June 1980 to Excise Commissioner the respondent thereby having their knowledge 12 years back they cannot reopen the matter of departmental proceeding against such officer. This finding I am giving on the basis of the Hon’ble Supreme Court in the case of State of Madhya Pradesh V. Benat Singh & Anr. (A.I.R. 1995 (2) S.C. 1808) as well as Decision of this Court in the case of Shyam Kishore Singh V. State of Bihar and others Passed in CWJC No. 4584 of 1991 disposed of on 30.10.1991. 12. If the matter of departmental proceeding cannot be initiated against the Deputy Commissioner at Excise of this belated stage of 12 years I fall to understand as to how the respondents can reopen the matter of illegality of appointment of the petitioners they having such a knowledge 12 years book relating to appointment of the petitioners made by the Deputy Commissioner of Excise. 13. According this writ application is allowed and the impugned order dated 7th of April 1992 (Annexure 5) is hereby quashed. 14. But in the facts and circumstances of the case there will be no order as to costs. Application allowed.