Municipalities Lack Independent Rule-Making Power For Service Regulations: Patna HC

The Patna High Court has clamped down on municipal overreach, ruling that Urban Local Bodies cannot unilaterally frame their own employment rules as the mandate to regulate recruitment and service conditions rests exclusively with the State Government. In a significant clarification of the Bihar Municipal Act, 2007, the court held that any appointment procedure established by a municipality in defiance of state-level statutory provisions like Section 40A is legally a nullity.

Justice Dr. Anshuman adjudicated the matter, navigating the complexities of municipal autonomy versus state control. The bench examined whether a Nagar Panchayat possesses the jurisdiction to frame its own employment rules and subsequently regularize employees against sanctioned posts without explicit state approval or adherence to reservation and advertisement protocols.

Key Takeaways

State Primacy in Rule-Making

The power to frame service rules for municipal employees is vested solely in the State Government under Section 40A, not individual local bodies.

Void Ab Initio Appointments

Appointments made under rules framed by a municipality without jurisdiction are legally invalid and cannot be regularized through local executive decisions.

Protection of Incumbent Employees

While the court found legal flaws in the appointment process, it provided a shield for current workers, directing a status quo on their employment until the State takes a final decision.

Mandatory Procedural Compliance

Municipalities must follow prescribed procedures, including reservation roaster approval and public advertisements, for regular appointments to be valid.

Invalidity of Centrally Framed Municipal Rules

The Court analyzed the statutory scheme and found that the petitioners' claim rested on the 'Nagar Panchayat Motipur Employment/Appointment Rules, 2016', which was framed by the municipality itself. However, the Court noted that Section 40A, inserted into the Bihar Municipal Act, 2007 in 2014, explicitly reserved the power to frame Service Rules for recruitment, service conditions, and promotion to the State Government.

The Court, in its reasoning, observed: "From this provision, it become crystal clear that it is the State Government who has to make provision and to frame rule and not the municipality himself... the said rule i.e. Annexure-1 of the writ petition has not been framed by the municipality in accordance with law and therefore, anything done on the basis of Annexure-1 is bad in law."

Directions Issued to the State

While the Court declined to grant the immediate relief of pay scale parity due to the legal infirmity of the petitioners' appointments, it protected their current working status. The Court has the following directions:

"this Court hereby directs the Principal Secretary Urban Development and Housing Department Govt. of Bihar, Patna (Respondent No. 2) to take a decision with regard to the petitioners after hearing the Executive Officer, Nagar Parishad Motipur, Muzaffarpur (Respondent no. 5) as well as the petitioners in accordance with law, within a period of 90 days. The said 90 days shall be counted from the date of appearance of all concerned before the Respondent no. 2. It is made clear that the petitioners shall not be disturbed and they shall be permitted to work and are entitled to receive the payment which they are receiving at present and their status quo shall not be disturbed, till final hearing and passing a reasoned and speaking order by the Respondent no. 2 in the present matter."

Ratio

Under Section 40A of the Bihar Municipal Act, 2007, the State Government possesses the exclusive jurisdiction to frame Service Rules for municipal employees. Any employment rules framed by a Municipality or Nagar Panchayat independently are ultra vires the Act, and appointments made under such rules are nullities. However, the Repeal and Savings clause under Section 488(4)(b) only saves actions taken under previous acts until superseded by the current statutory regime.

Background

The petitioners were working in Nagar Parishad Motipur on a contractual or daily-wage basis. Following the sanction of posts by the Urban Development and Housing Department via Resolution No. 2503 dated 03.05.2018, the Electoral Board of Nagar Parishad Motipur decided to absorb them into regular service. They sought the issuance of a Mandamus for the grant of regular pay scales and arrears from June 2019.

The State contested the petition, arguing that the 2016 Rules framed by the Nagar Panchayat were without jurisdiction. It was further contended that the appointments violated a departmental ban imposed in 2014 and failed to follow the mandatory reservation roaster or public advertisement procedures. The State relied on the fact that Section 40A gives rule-making power only to the State. The Court distinguished the present case from Pramod Kumar Vs. The State of Bihar & Ors., noting that the latter involved different factual circumstances regarding manpower agencies.

Case Details:
Case No.: Civil Writ Jurisdiction Case No. 2728 of 2023
Case Title: Kamlesh Kumar Jha & Ors. v. The State of Bihar & Ors.
Appearances:
For the Petitioner(s): Mr. Shashi Bhushan Singh, Adv.
For the State: Mr. Kinkar Kumar (SC-9)
For the Resp. no. 5: Mr. Harshvardhan Shivsundaram, Adv.

Source: 2026 CaseBase(PAT) 3972