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Judgment
Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the Nagar Parishad.
The present writ petition has been filed for the following relief/s:-
“I. For issuance of appropriate Writ/Writs, direction/directions in the nature of Mandamus directing the respondents to consider and grant the promotion to the petitioner from the post of Assistant/Clerk to Head Clerk in terms of the eligibility acquired by the petitioner besides the petitioner being senior most and the post of Head Clerk is vacant and further be pleased to direct the respondents for consideration of consequential promotion as is due in terms of the applicable Rules and Kalawadhi prescribed for the higher Grade of Pay and pay scale attached to the higher post.
II. For issuance of appropriate Writ/Writs, direction/directions in the nature of Mandamus directing the respondents to grant benefit under ACP/MACP as the petitioner qualifies the requisite conditions and has not been granted till date.
III. For issuance of appropriate Writ/Writs, direction/directions in the nature of certiorari for setting aside the proceeding/office order contained in letter no.-27 dated 09.01.2024 qua agenda no.-05 by which the private respondent no.-6, who is a contractual employee and much junior to the petitioner has been given the charge of Head Clerk and in consequent thereto, be pleased to direct the respondents to post the Petitioner on the Post of Head Clerk, Nagar Parisad, Dehri-Dalmianagar, as he being the senior most and possess the requisite eligibility.
IV. For grant of any other relief/reliefs for which the petitioner is legally entitled and the Hon'ble Court deems appropriate and necessary in this case.”
Learned counsel for the petitioner submits that the petitioner has filed his representation before the Executive Officer, Nagar Parishad, Dehri- Dalmianagar for fulfillment of his grievances, but no decision has been taken on his representation till date.
Learned counsel appearing for the Nagar Parishad submits that in the year 2007, Bihar Municipal Act, 2007 (Act No. 11 of 2007) (hereinafter referred to as ‘Act of 2007’) has been enacted and the relief demanded by the petitioner could be made with the help of committee namely, Empowered Standing Committee.
After hearing the parties, it transpires to this Court that for just decision of this case with regard to the petitioner, section 40A read with section 488 of the Act of 2007 are very much relevant which are quoted here-in-below:-
“40A:- The State Government may make provisions by framing Service Rules for different categories of officers and other employees of the Municipality for recruitment, service conditions, posting, transfer, promotion, disciplinary action and other related aspects of municipal service and municipal personnel management.
488. Repeal and Savings:-
(1)With effect from the date of coming into force of this Act, the Bihar Municipal Act, 1922, Patna Municipal Corporation Act, 1951, Bihar Municipal Corporation Act, 1978, Bihar Regional Development Authority Act, 1981, Bihar Town Planning & Improvement Trust Act, 1951, Bihar Restrictions of Uses of Land Act, 1948, Bihar Municipal Ordinance, 2007 shall stand repealed.
(2)Gram Panchayats, Panchayat Samities and Zila Parishads, constituted under the Bihar Panchyat Raj Act 2006, whose jurisdiction extend over the Municipal Area shall not exercise powers and functions as have been entrusted to the Municipality under this Act.
(3)The Regional Development Authorities set up under the Bihar Regional Development Authority Act, 1981, the Improvement Trust or Town Planning Authority set up under the Bihar Town Planning and Improvement Trust, Act, 1951, the Controlling Authority constituted under the Bihar Restriction of Uses of Land Act 1948, shall cease to exist with effect from the date of this Act comes into force,
(4)Notwithstanding the provisions of sub-section (1): and sub-section (3)
(a)Subject to the scrutiny of the requirements of the Municipality assessed by an officer or officers appointed by the State Government, every such officer or other employee serving with various authorities, organisations set up under the Acts listed in sub-section (1) and (3) of this Section, immediately before the date of the commencement of this Act and on and from such date shall be deemed to have been transferred to and become an officer or other employee of the Municipality with such designation as the Municipality may determine and may hold office by the same tenure, at the same remuneration and on the same terms and conditions of service as he would have held if the Acts were not repealed, and shall continue to do so unless and until such tenure, remuneration and terms and conditions are duly altered by the Municipality:
Provided that any service rendered by such an officer or other regular employees before the repeal of the Act shall be deemed to be service rendered under the Municipality:Provided further that the officer or officers appointed by the State Government shall screen and verify service record of each officer and employee and only such officers and employees shall be absorbed in the municipality which have been appointed against duly sanctioned posts in accordance with law by a Competent Authority.
(b)Anything done or any action taken (including any appointment, Rule, bye-laws, Regulation made, granted or issued under various Acts listed in sub-section (1) and (3) of this Section shall, continue to be in force and be deemed to have been done or taken under the provisions of this Act unless it is superceeded modified/altered by any thing done or any action taken under this Act.
(c)All debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the various authorities organisations set up under the Acts listed in subsection 3 of this Section shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Municipality.
(d)All properties movable and immovable and all rights, title, and interest in any property vested in the authorities organisations (set up under the Acts) listed in sub-section (1) and (3) of this Section shall vest in the Municipality and all properties in possession of such organisations shall be deemed to be due to the Municipality.
(e)All suits, prosecution, and other legal proceedings instituted or which might have been instituted by, for, or against the said authorities organisation listed in sub-section (1) and (3) of this Section may be continued or instituted by, for or against the Municipality.
(f)All sums charged on any property under various Acts listed in sub-section(1) of this Section or the Rules or Regulations framed thereunder shall continue to be charged on that property and the charge shall be enforceable by the Municipality.
(g)From the date Act comes into existence, Municipality will have the same right as the said various authorities, organisations had in all lands within the area notified under sub-section (1) and (3) of the Act which were previously held by the said various authorities, organisations on lease from the State Government for a certain period or the possession of which has been delivered to the aforesaid authorities/ organisations.
(h)The Municipality shall continue to enjoy the powers to realise the various sources of income in terms of levies, fees, cess, etc.; otherwise empowered to be realised by said various authorities organisation under their respective Acts and Rules and Regulations framed thereunder specified under sub-section(3) of this Section of the Act, as if the said authorities were still functioning under their respective Statutes until the same are amended by the Municipality from time to time.
(5)Notwithstanding such repeal, anything done or any action taken in exercise of any power conferred by or under the Acts/Ordinance referred in sub-section (1) shall be deemed to have been done or taken in exercise of the powers conferred under this Act, as if this Act were in force on the day on which such things or action was done or taken. ”
From the conjugal reading of aforesaid sections of the Act of 2007, it transpires to this Court that the State Government has to frame a rule for service to deal with different categories of officers and other employees of the Municipality for recruitment, service conditions, posting, transfer, promotion, disciplinary action and other related aspects of municipal service and municipal personnel management. It has been jointly mentioned by the parties that till date, no such rule has been framed by the State Government. But, under the provisions of section 488(1) read with section 488(4)(b) of the Act of 2007, it transpires to this Court that all earlier provisions including rules, bye-laws, regulations under the various acts listed under section 488(1) has been continued to be in force unless any modified or other rule under the new act shall not come.
In this view of the matter, this Court is of the firm view that the rules for regulating the appointment and qualification for the officers and servants of Municipal Act an NAC vide SO No. 956 dated 25.06.1977 is still in existence and according to Clause 2 of the said rule for appointment on any post of promotion, the committee presently known as Empowered Standing Committee is responsible.
It is due to this reason, the petitioner is hereby directed to file a fresh representation along with a copy of this order for his grievances before the Executive Officer, Nagar Parisad, Dehri- Dalmianagar (Respondent no. 4) within 30 days. Upon receipt of the same, the Respondent no. 4 shall place this matter before the Empowered Standing Committee and after the decision of the said committee, shall pass order within 90 days thereafter.
Accordingly, with the aforesaid direction, this writ petition stands disposed off.