Judgment AFTAB ALAM, J. 1. Whether the legal position emerging from the 73rd constitutional amendment, followed by the coming into force of the Bihar Panchayat Raj Act, 1993 (by which the Bihar Panchayat Raj Act, 1947 was repealed) allowed for appointment of Dalpaties (Head of the village volunteer force)? This is the common question arising for consideration in all the writ petitions and a letters patent appeal in this batch of cases. 2. The petitioners contend that appointment of Dalpaties could still be made after the 73rd constitutional amendment and the coming into force of the Bihar Panchayat Raj Act, 1993 , at least, till 24-4-1997 when the Supreme Court by an order passed in a writ petition expressly stopped from functioning the Gram Panchayats which were supposedly in existence in this State on the basis of the elections held in the year 1978. 3. On behalf of the State, on the other hand, it is maintained that after coming into force of the Bihar Panchayat Raj Act, 1993 , no appointment of Dalpaties could be validly made until relevant rules are framed under the Act and, in any event, no appointment could be made by the Executive Committees of the Moribund Panchayats which were constituted on the basis of the elections held in 1978, under the Bihar Panchayat Raj Act, 1947. 4. The Bihar Panchayat Raj Act, 1947 (hereinafter referred to as the 1947 Act) in S. 26 provided for the formation of a village volunteer force under the command of a Dalpati. Sec. 26 as it finally stood, after undergoing amendments from time to time, in so far as relevant for the present was as follows : "26. Village Volunteer Force- For general watch and ward for meeting cases of emergency like fire, breaking of an embankment or dam, out-break of epidemic, and occurrence of burglary, dacoity (and for maintenance of peace and tranquillity), the Executive Committee may organise a village volunteer force (to be called Gram Raksha Dal in Hindi) under the command of (Vihit Riti Se Niyukt Ek Dalpati) by the Executive Committee , and all able bodied males of the village between the ages of 18 and 30 years shall be members of the said force : 5. Sec. 26 of the 1947 Act thus provided that the appointment of Dalpati was to be made in the prescribed manner but clearly stated that the Executive Committee of the Gram Panchayat shall be the appointing authority for the Dalpati. 6. Executive Committee of the Gram Panchayat was defined in S. 2(e) of the Act as follows : "(e) "Executive Committee" means the Executive Committee of the Gram Panchayat consisting of the Mukhiya elected under S. 11 and the members (elected) under S. 12." 7. The mode of recruitment of Dalpati was prescribed under R. 4 of the Bihar Panchayat Village Volunteer Force Rules, 1949 framed under S. 27 of the 1947 Act. Rule 4 in so far as relevant for the present was as follows : "4. (1) Subject to the approval of the District Panchayat Officer, the Executive Committee shall, for the purpose of commanding the force, appoint a Chief Officer from amongst the members of the force. (2) x x x x x x x x x x x x x x (a) to (e) x x x x x x x x x x x x Provided that x x x x x x x x x x (3) x x x x x x x x x x x x x x 8. It was under the aforesaid provisions that the appointment of Dalpaties used to be made in this State. 9. A fundamental change in this regard was brought about by the 73rd Amendment of the Constitution coming into force with effect from 24-4-1993. The 73rd Amendment reintroduced Part IX in the Constitution on the subject of the Panchayats and Arts. 243-F and 243-N under that chapter are as follows : "243-E. Duration of Panchayats, etc.- (1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Cl. (1). (3) An election to constitute a Panchayat shall be completed- (a) before the expiry of its duration specified in Cl. (1). (3) An election to constitute a Panchayat shall be completed- (a) before the expiry of its duration specified in Cl. (1); (b) before the expiration of a period of six months from the date of its dissolution : Provided that where the reminder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the panchayat for such period. (4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under Cl. (1) had it not been so dissolved. "243-N. Continuance of existing laws and Panchayats.- Notwithstanding anything in this part, any provision of any law relating to panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier : Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State." 10. Following the 73rd constitutional amendment the Legislature of this State enacted the Bihar Panchayat Raj Act, 1993 (hereinafter referred to as the 1993 Act) which on receiving the assent of the Governor came into force with effect from 23-8-1993. Sec. 157 of 1993 Act repealed the 1947 Act with certain saving clauses of which Cls. (e) and (f) being relevant are reproduced below : "(e) Notwithstanding such repeal, anything contained or any action taken in exercise of any power conferred by or under such Act shall be deemed to have been done or taken in exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing or action was done or taken. (f) Notwithstanding such repeal the Gram Panchayats, Panchayat Samities, Zila Parishad, which were validly constituted under the repealed Acts, shall continue to function till the consitution and the first meeting of the Gram Panchayat, Panchayat Samiti and Zilla Parishad under this Act." 11. Sec. 151 of the 1993 Act empowered the State Government to make rules relating to the method of recruitment and the terms and conditions of service of the employees of the Panchayat. 12. The 1993 Act as originally enacted did not make any provision for village volunteer force or for a Dalpati as its head. The omission was perhaps due to some mistake which was rectified by the Bihar Panchayat Raj Act (Amendment) Act, 1995 (Bihar Act 14 of 1995). Sec. 5 of the Amendment Act, incorporatted in the 1993 Act, S. 32-A containing the provisions regarding Gram Raksha Dal (village volunteer force) and S. 1(2) of the Amendment Act provided that the introduction of S. 32-A shall be deemed to have come into force from 23-8-1993, that is to say, the date on which the parent Act had come into force. Sec. 32-A introduced in the 1993 Act reads as follows : "32-A. Organisation of Gram Raksha Dal- For general Watch and Ward and for meeting emergent events i.e. fire, breaking of an embankment or bridge, out-break of epidemic and to encounter burglary or dacoity etc. to perform such duties imposed by the Government from time to time and for maintenance of public peace and order, a Gram Raksha Dal shall be organised under a Dalpati, appointed in the prescribed manner, for every Gram Panchayat and all able-bodies persons of a village between the age of 18 and 30 years shall be members of the said Dal. The Government may make rules for the organisation, duty and utilisation of Gram Raksha Dal." 13. It is significant to note here that in S. 32-A of the 1993 Act, there is no mention of the Executive Committee of the Panchayat as the appointing authority for the recruitment of Dalpati. This is because there is no Executive Committee in the scheme of Panchayats constituted under the 1993 Act. 14. In the light of the legislative changes as noted above certain directions were issued from time to time by the Directorate, Panchayati Raj, Govt. of Bihar, on 12-8-1993 the Director, Panchayati Raj sent a wireless message to all Dist. This is because there is no Executive Committee in the scheme of Panchayats constituted under the 1993 Act. 14. In the light of the legislative changes as noted above certain directions were issued from time to time by the Directorate, Panchayati Raj, Govt. of Bihar, on 12-8-1993 the Director, Panchayati Raj sent a wireless message to all Dist. Panchayat Raj Officers prohibiting further appointments of Dalpaties in view of the bill that had been prepared and that later became the 1993 Act. A question then arose regarding the payment of allowances to the Dalpaties who had been appointed earlier. The Director, Panchayati Raj by his letter, dated 27-12-1993 made it clear that there was no legal impediment in making payment to the Dalpaties appointed earlier as their appointment was expressly saved by Cl. (e) of S. 157 of the 1993 Act. Later, by circular letter, dated 27-6-1994 the Director Panchayati Raj purported to withdraw the ban imposed against the appointments of Dalpaties. 15. In the mean while in a number of cases orders were passed by this Court, both by a Division Bench and by Hon ble Judges sitting singly, that no appointment of Dalpaties could be made after the coming into force of the 1993 Act with effect from 23-8-1993. These orders were passed mainly on the grounds that no rules were framed either under S. 32-A or S. 151 of the 1993 Act laying down the mode of recruitment of Dalpaties. (Some such orders are dated 17-7-1996 passed in C.W.J.C. No. 5600 of 1996, dated 1-10-1996 passed in C.W.J.C. No. 10492 of 1994, dated 7-5-1997 disposing of C.W.J.C. Nos. 325 and 432 of 1996 and dated 24-6-1997 passed in C.W.J.C. No. 3109 of 1996 and two other (sic) cases. (Interestingly Mr. Jitendra Kumar Roy who is appearing for the petitioners in almost all the cases in this batch had earlier appeared in the cases cited here in support of the proposition that any appointment of Dalpati made after the coming into force of the 1993 Act was invalid and illegal and the earlier orders were passed by this Court accepting his submissions). 16. 16. In the light of the orders passed by this Court, the Commissioner-cum-Secretary, Rural Development Department issued a circular letter, dated 9-2-1998 declaring as invalid and illegal all appointments of Dalpaties made after 23-8-1993 (the date on which the 1993 Act came into force) and consequently giving the direction to cancel all appointments of Dalpaties made after that date. 17. It is this circular, dated 9-2-1998 that comes under challenge in this batch of writ petitions. 18. Mr. Jitendra Kumar Roy, learned counsel appearing for the petitioners in the majority of the writ petitions in this batch submitted that it was quite erroneous to hold that no appointment of Dalpaties could be made until rules were framed under S. 32-A or S. 151 of the 1993 Act. Learned counsel submitted that the Bihar Panchayat Village Volunteer Force Rules, 1949, framed under the 1947 Act were quite good and adequate for appointment of Dalpaties under the 1993 Act. Learned counsel contended that the Bihar Panchayat Village Volunteer Force Rules, 1949 were not repealed as a consequence of the repeal of the 1947 Act, under which those rules were framed, but were saved by virtue of S. 27 of the Bihar and Orissa General Clauses Act. Sec. 27 of the General Clauses Act reads as follows : "27. Continuation of orders, etc., issued under enactments repealed and re-enacted - where any enactment is repealed and re-enacted by a Bihar and Orissa Act (or Bihar Act) with or without modification, then, unless it is otherwise expressly provided, any appointment, notification order, scheme, rule, by-laws or form, made or issued under the repealed enactment, shall, so far as it is not inconsistent with the provisions re-enacted, continue in force and be deemed to have been made or issued under the provisions so re-enacted, unless and until it is superseded by any appointment, notification, order, scheme, rule, by-laws or form, made or issued under the provisions so re-enacted." (Emphasis added) 19 Mr. Roy submitted that on the issue of recruitment of Dalpati, there was no inconsistency between the provisions of S. 26 of the 1947 Act and the provisions as contained in S. 32-A of the 1993 Act; on the other hand the two provisions were very similar and almost identical. Roy submitted that on the issue of recruitment of Dalpati, there was no inconsistency between the provisions of S. 26 of the 1947 Act and the provisions as contained in S. 32-A of the 1993 Act; on the other hand the two provisions were very similar and almost identical. Learned counsel pointed out that S. 26 of the 1947 Act, after its amendment by Act 7 of 1990, also provided that the recruitment will be made in the manner prescribed (Vihit Riti Se). Sec. 32-A similarly provided that a Dalpati shall be "appointed in the prescribed manner." Mr. Roy further submitted that the manner of recruitment was provided under R. 4 of the Bihar Panchayat Village Volunteer Force Rules, 1949 and those rules must, therefore, be deemed to have been made under the 1993 Act as envisaged under S. 27 of the General Clauses Act. 20. The submission to my mind is quite fallacious and hence, unacceptable. It is true that at the first glance the provisions of S. 26 of the 1947 Act and those in S. 32-A of the 1993 Act appear very similar. It is also true that both under S. 26 of the 1947 Act and S. 32-A of the 1993 Act, it is provided that the recruitment of Dalpaties will be made in the manner prescribed (under the Rules). But there is a basic difference between the old provisions and the provisions currently in force in that S. 26 of the 1947 Act clearly specified the Executive Committee of the old Gram Panchayat as the appointing authority for the recruitment of Dalpaties. Unlike the old provision, under S. 32-A of the 1993 Act the appointing authority is not identified and consequently the authority competent to make the appointment is also to be specified in the rules to be framed under the 1993 Act. It is, therefore, incorrect to submit that there was no 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 S. 27 of the Bihar and Orissa General Clauses Act. 21. Mr. It is, therefore, incorrect to submit that there was no 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 S. 27 of the Bihar and Orissa General Clauses Act. 21. Mr. Roy next submitted that notwithstanding the constitutional mandate introduced by its 73rd Amendment and regardless of the provisions of the 1993 Act, the fact of the matter is that the Executive Committees of the Gram Panchayats constituted on the basis of the election held in 1978 under the 1947 Act had continued to function till those Gram Panchayats were expressly stopped from functioning by the order, dated 24-2-1997 passed by the Supreme Court in Writ Petition No. 719 of 1995. Mr. Roy stated that even after Art. 243-N of the Constitution came into force on 24-4-1993 and the 1993 Act came into force with effect from 23-8-1993 the erstwhile Executive Committees had continued to function for the implementation of the schemes, utilisation of funds and appointment of Dalpaties etc. According to Mr. Roy, those appointments were, therefore, saved by the application of the de facto doctrine. In this submission Mr. Roy was joined by Mr. Shyama Pd. Mukherjee, Senior Advocate who appeared on behalf of the petitioners in some of the writ petitions in this batch. 22. In support of this submission reliance was placed on a decision of the Supreme Court in Goka Raju Ranga Raju V/s. State of A.P., AIR 1981 SC 1473 . I think it is a submission of desperation and in my view neither the de facto doctrine nor the Supreme Court decision relied upon by the counsel has any application to the issue under consideration in this batch of cases. I find it impossible to hold that the Executive Committees of the Panchayats constituted on the basis of an election held fifteen years ago continued to lawfully remain in existence in violation of the constitutional mandate and the provisions of the 1993 Act. It is also misconceived to suggest that the erstwhile Gram Panchayats ceased to function only as a consequence and from the date (24-2-1997) of the order passed by the Supreme Court in Writ Petition No. 719 of 1995. It is also misconceived to suggest that the erstwhile Gram Panchayats ceased to function only as a consequence and from the date (24-2-1997) of the order passed by the Supreme Court in Writ Petition No. 719 of 1995. The Supreme Court order simply made a declaration and clarification of the legal position as brought about by the legislative changes. 23. Moreover, the controversy regarding the subsistence of the Executive Committees of the erstwhile Gram Panchayats till 24-2-1997 appears to be quite irrelevant. Even assuming, for the sake of argument, that the Executive Committees of the erstwhile Gram Panchayats were not in fact in subsistence till 24-2-1997, that will not improve the case of the petitioners in any way. As noted above, S. 32-A of the 1993 Act had denuded the Executive Committees of their power to make appointment of Dalpaties and hence, the Executive Committees even if subsisting after 23-8-1993 were left with no authority or power to make recruitment of Dalpaties. I, thus, find no substance in the second submission as well made on behalf of the petitioners. 24. For the reasons discussed above, I find and hold that the circular letter, dated 9-2-1998 was validly and legally issued by the Government and the grounds on which it is sought to be challenged have no substance or merit. All these writ petitions and the single L.P.A. constituting this batch of cases are accordingly dismissed but with no order as to costs. Petition dismissed.