The Patna high court on Friday struck down certain provisions of the Bihar Municipal (Amendment) Act, 2021, through which the state government had taken over the powers of appointment and transfer of employees of Grade C and D of the municipal bodies.
The court held that the these provisions, added to the state’s original Act of 2007, were contrary to the Constitution (74th) Amendment Act, 1992, which aims to achieve self-governance.
The court also pointed out that though the state legislature has the power to legislate on matters concerning municipal bodies, its involvement in the functioning of local bodies has to be minimal.
The order was passed by a bench of chief justice Sanjay Karol and justice Sanjay Kumar on a writ petition filed by a Patna resident, Dr Ashish Kumar Sinha, and others, who had challenged the constitutional validity of the Bihar Municipal (Amendment) Act, which came into effect on March 31, 2021.
By virtue of the 2021 amendment, all powers of appointment, selection, posting, and transfer of employees of a municipality were taken over by the state government, even though for the purpose of salary, wages and all pecuniary benefits, the responsibility rested with the local body.
On Friday, the high court declared amendments carried out in sections 36, 37, 38, 41 of the 2007 Act, by virtue of amending sections 2, 3, 4 and 5 as “unconstitutional”.
“The control exercised by the municipal authority in matters concerning its employees is not complete/unbridled or entirely autonomous. However, there is considerable freedom guaranteed by virtue of such authority being a quasi-autonomous body, which must be respected in line with horizontal separation of powers under the constitution,” the noted the bench, while dwelling on the concept of political and administrative autonomy.
The court said it had only dealt with the constitutionality of the said provisions of the 2021 Act and held them ultra vires. “All other issues, including that of outsourcing of work, are left to be agitated and adjudicated in an appropriate case,” it said.
As per the original act of 2007, in respect of category ‘A’ and ‘B’ employees, appointments were to be made by the state government in consultation with the empowered standing committee and with respect to category ‘C’ and ‘D’, the chief municipal officer, with the prior approval of the empowered standing committee. would make such appointment.
The Bihar government argued before the court that the amendment was brought in to deal with a practical issue that was being faced in the free and fair appointment on the posts of Group ‘C’ as appointees used to “remain in a particular municipal office for a long time”, leading to corruption.
