The main legal point established in the judgment is that appointments of Dalpaties under the Bihar Panchayat Raj Act, 1993, required rules to be framed, and appointments made without such rules were deemed invalid.

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followed by the coming into force of the Bihar Panchayat Raj Act, 1993 (by which the Bihar Panchayat Raj Act, 1947 was repealed) allowed for appointment of Dalpaties (Head of the village volunteer force)?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 amen