The Patna high court on Friday declared “unconstitutional” certain provisions of the Bihar Municipal (Amendment) Act, 2021, which amended the state’s original Act of 2007, saying they were contrary to the Constitution (74th) Amendment Act, 1992 that 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, however, 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 while hearing a writ petition filed by a Patna resident, Dr Ashish Kumar Sinha, and others, challenging 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 provisions of the 2021 Act to be 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 with a view to deal with a practical issue that was being faced in the free and fair appointment on the posts of Group ‘C’ as these positions were being used to “remain working in a particular municipal office for a long time”, leading to corruption.
However, the bench said noted that noted four sections of the Amendment Act (which amended sections 36, 37, 38, and 41 of the 2007 Act) had given complete authority to the state government to prescribe method appointment, control, conduct, etc of Grade-C and D employees.
“The impugned amendments to the extent of Section 2, amending Section 36; Section 3, amending Section 37; Section 4, amending Section 38; Section 5, amending Section 41 of the Municipal Act, by virtue of Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021), are contrary to the 74th constitutional amendment as both the major effects, i.e. the recentralization of power and institution of self-government being weakened as being dependent on the state government for regulation of its employees, are incompatible with the idea, intent and design of the constitutional amendment and are manifestly manifestly arbitrary,” noted the court. It added that there was a need to strike a balance in the self-government of municipal bodies and the control exercised thereon by the state.
The writ petition has asked the court to consider whether the impugned amendments brought in by virtue of Bihar Municipal (Amendment) Act, 2021 are repugnant to the Constitution (Seventy Fourth) Amendment Act, 1992. It also asked if the amendment Act was in contravention of their parent Act and restricted the power of appointment, posting, transfer of the employees, results into truncating the cadre autonomy and functioning of municipal bodies as institutions of self-government.
“The state government does not have any jurisdiction to interfere in the functioning of municipality, as the Act confers power on the empowered committee to prepare and maintain a schedule of posts of officers and other employees constituting the establishment of municipality,” said the petition.
The petitioners further argued that the empowered standing committee or the executive of the municipal authority, answerable to the public for functions enumerated in the Act, but not have control over the executing officers and staff, “is excessive and arbitrary, for, a municipal authority is envisaged as an institution of self-government representing decentralisation of authority”.
State’s advocate general Lalit Kishor said the government had brought in amendments to rein in corruption. “The government will go through the order to decide the future course,” he added.
