Sakina Tashrifwala
Published on: October 22, 2022 at 17:50 IST
The Patna High Court today issued a significant order declaring certain provisions of the Bihar Municipal (Amendment) Act, 2021, which amended the State’s 2007 Act, unconstitutional, while also holding that certain amendments carried out in the 2007 Act are contrary to the 74th Constitutional Amendment because they impeded the achievement of self-government.
For background, the State Government assumed all rights of recruitment, selection, posting, and transfer of personnel in Grades C and D as a result of revisions made to the Bihar Municipal Act in 2007.
The Issue At Hand
To clarify, under the original act of 2007, appointments to category ‘A’ and ‘B’ employees are to be made by the State Government in consultation with the Empowered Standing Committee, while appointments to category ‘C’ and ‘D’ employees are to be made by the Chief Municipal Officer with the prior approval of the Empowered Standing Committee.
However, in the Amendment Act of 2021, the executive of the State Government was given the authority to carry out this work with regard to Grade C and D employees as well.
It should be noted that the Empowered Standing Committee, which is the executive of the Municipal Authority, has administrative control over employees; however, the Amendment Act sought to remove such controlling rights, which the petitioners in this case argued resulted in a concentration of power with the State Government, which is contrary to the spirit of devolution of powers.
Their main issue was that the Empowered Standing Committee, which is an elected body that answers to the people, is now at the mercy of the Directorate of Municipal Administration (according to the amending legislation) (controlled by the state government). In essence, they claimed that the power of an elected body had been transferred to a centralised executive authority, namely the Directorate of Municipal Administration.
Bihar Government’s Position
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 Group ‘C’ posts, as these positions were being used to “remain working in a particular municipal office for a long time,” which led to corruption.
The government further claimed that with the modification, transfers of Group ‘C’ staff were allowed, resulting in better municipal management with “efficient and experienced employees.”
Observations of the Court
After reviewing the amended provisions of the Act, the bench of Chief Justice Sanjay Karol and Justice S. Kumar concluded that four sections of the Amendment Act (which amended Sections 36, 37, 38, and 41 of the 2007 Act) had given the State Government complete authority to prescribe methods of appointment, control, and conduct of Grade-C and D employees.
The Court further emphasised that, while the State Legislature has the authority to legislate on local concerns, the State Government’s involvement in the operation of such municipal entities must be limited.
“By virtue of the Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021), the impugned amendments to the extent of Section 2, amending Section 36; Section 3, amending Section 37; Section 4, amending Section 38; and Section 5, amending Section 41 of the Municipal Act are contrary to the Seventy Fourth Constitutional Amendment as both the major effects, i.e. the recentralization of power and the institution of self-government being weakened as being dependent on the State.”
Regarding the Bihar Government’s argument that corruption was the impetus for enacting the amendment act, the Court noted that the record presented by the Government did not show that any investigation was conducted into corruption in municipal bodies in general or with respect to an appointment in Group-C or D.
The Court also stated that no case had been shown to establish municipal misuse of the power to recall an officer and the resulting administrative complications.
Significantly, the Court emphasised that the State Government is already empowered under the parent Act to take action against municipalities if corrupt activities are prevalent, as stated by the State Government.
In light of this, and emphasising that modifying a legal provision is perfectly appropriate as long as it does not significantly affect the general structure of the Act, the Court added:
“In the face of existing provisions giving wide and far-ranging supervisory powers to the State, the path chosen is one that hampers/damages a hallmark of the third level of Government i.e. devolution of powers.”
“It would have been entirely within the purview of the State to have initiated an investigation into the purported corrupt practices prevailing in municipal bodies compelled the taking of rectifying action and in the absence of such action being taken, itself enforced the order and in exceptional cases, after due opportunity of being heard, even dissolved the municipality.”
“So far as the appointment of Group-C and D Employees is concerned and the irregularity/illegality plaguing this exercise, the constitutionally permissible answer would be to exercise powers already existing under the Statute, supervisory in nature and not to bring in an amendment which goes against the very spirit of joint/collective responsibility and the core reasons for which this amendment was brought to the Constitution.”
Furthermore, referring to Sections 27-B, 37 (1) to (3), and the wide range of functions and responsibilities under Sections 45 and 47 of the Municipal Act, the Court observed that while the Municipalities have their own sphere of authority and function, with the passage of the Amendment Act, disproportionate power and authority now vests with the State Government, creating a situation that tilts completely in favour of the latter’s unilateral exercise of power.
“The contested changes obstruct the accomplishment of self-governance and so are liable to be repealed…” “Sections 2, 3, 4, and 5 of the Bihar Municipal (Amendment) Act, 2021”, the Court continued, “are in violation of the Bihar Municipal Act, 2007.”