Dr. Ashish Kumar Sinha v. The Union of India

Judgment

1. The Union of India through the Cabinet Secretary, Government of India The Finance Secretary, Ministry of Finance, Government of India The Law Secretary, Department of Legal Affairs, Government of India The State of Bihar through the Chief Secretary, Government of Bihar, Patna The Principal Secretary, the Urban Development and Housing Department, Government of Bihar, Patna The Secretary cum Legal Remembrancer, Law Department, Government of Bihar, Patna The Municipal Commissioner, Patna Municipal Corporation ... ... Respondent/s ====================================================== Civil Writ Jurisdiction Case No. 5713 of 2020 ====================================================== Bihar Local Bodies Employee Federation, a Trade Union registered under the provisions of Indian Trade Union Act, 1926 through its President Mr. Shiv Bachan Sharma (Male) aged about 68 years, S/o Late Bhagwan Singh Address Mohalla- 24/K I S Lane Gurunank School, P.S.- Muffasil, District- Gaya.

2. Dilip Mallick, S/o Late Sakhi Chandra Mallick R/o Village- Baghi, P.S.- Muffasil, District- Begusarai.

3. Ambika Paswan Son of Late Mukh Lal Paswan, Resident of Village- Manshahi, P.S.- Manshahi, District- Katihar. Versus ... ... Petitioner/s

4. The State of Bihar through its Principal Secretary, Town Development and Rehabilitation Department, Government of Bihar, Patna. The Special Secretary Town Development and Rehabilitation Department, Govt. of Bihar, Patna. The Joint Secretary Town Development and Rehabilitation Department, Govt. of Bihar, Patna. The Additional Secretary, Lokayukta, Bihar, Patna. ====================================================== ... ... Respondent/s Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 Civil Writ Jurisdiction Case No. 9047 of 2020 ====================================================== Ramesh Kumar son of Baiju Gop Resident of Bhanwar Pokhar, Gopal Tola, PS- Pirbhore, Dis- Patna.

2. Mukesh Kumar, son of Shiv Kumar Thakur, Resident of Bhanwar Pokhar, near by Khetan Market, PS- Pirbhore.

3. Durga Gor son of Bisajan resident of 21, Harding Road, MLA Flat, PS- Sachiwalaye, Dis- Patna.

4. Nawab Ahmed Ali, son of Md. Ali Resident of Phulwari Sharif, PS- Phulwari Sharif, Dis- Patna.

5. Abash Kumar son of Harinand Singh Resident of Gardanibagh, Road No. 1, PS- Gardanibhagh, Dis- Patna.

6. Niraj Kumar son of Nagendra Singh Resident of Vishnupuri Chitkohara, PS- Gardhanibagh, Dis- Patna.

9. Rahul Kumar son of Raju Rajak Resident of Chandpur Bela, Pani Tanki Gaya Line Road, Patna1. Ranjeet Kumar son of Ramji Mahto Resident of Aadalatganj, PS- Kothwali, Dis- Patna. Rakesh Kumar son of Ram Vilas Sharma resident of Kuthaul, Patna, PS- Kuthaul, Dis- Patna.

10. Vinod Kumar son of Ram Ashis Paswan resident of Kamla Nehru Nagar, Aadalatganj, PS- Kothwali, Dis- Patna.

11. Amit Kumar son of Jitendra Kumar Resident of Chitkohara, PS- Gardhanibagh, Dis- Patna.

12. Nitiesh Kumar son of Murli Prasad resident of New Punaichak Boaring Road, PS- Sashtri Nagar, Dis- Patna.

13. Shambhu Nath son of Lalchandra Ram resident of Raja Bazaar Samanpura, PS- Sashtrinagar, Dis- Patna.

14. Dipak Kumar son of late Chabila Prasad resident of South Mandiri, PS- Budhacolony, Dis- Patna.

15. Vinod Kumar son of Ramji Singh resident of Phulwari Sharif, PS- Phulwari Sharif, Dis- Patna.

16. Bimlesh Kumar son of Kashinath Singh resident of Phulwari Sharif, PS- Phulwari Sharif, Dis- Patna.

17. Dipak Kumar son of late Shivjatan Paswan resident of Bichli Mandiri, PS- Budhacolony, Dis- Patna.

18. Rahul Kumar son of Sambhu Prasad resident of Nagar Nigam Colony, Pulwari sharif, PS- Phulwari Sharif, Dis- Patna.

19. Ajay Kumar Paswan son of Ramakant Paswan resident of Saristabad Gardanibagh, PS- Gardanibagh, Dis- Patna.

20. Kanhaiya Kumar Misra son of late Pitambar Misra resident of Jagjivan Nagar, Chitkohara Pul Ke Niche, PS- Gardanibagh, Dis- Patna.

21. Chandan Kumar son of Dinesh Baitha resident of Anishabad, PS- Gardanibagh, Dis- Patna. Patna High Court CWJC No.11717 of 2021 dt.21-10-2022

22. Panjak Kumar son of Kumar resident of Kedwaipuri, PS- Budhacolony, Dis- Patna.

23. Anand Bhagat son of Chattu Bhagat resident of Gardanibagh, PS- Gardanibagh, Dis- Patna.

24. Sanjay Paswan son of Ramakant Paswan resident of Done Khurd, PO- Done, PS- Daurauli, Dis- Shiwan.

25. Amitabh Trivedi son of Krishna Murari Shankar Trivedi resident of Thakurbari Nala Road, PS- Kadam Kuan, Patna.

26. Bhim Ravidas son of Shri Ngina Mocha resident of Gram Godna, PO- Paawo, PS- Masuadi, Dis- Patna.

27. Uday Prasad son of Surendra Prasad resident of Salimpur Aahara Kadam Kuwan, PS- Gandhimaidan, Dis- Patna.

28. Chandan Saini son of Vinay Bhagat resident of Gram Kansari, PO- Kansari, PS- Gaurichak, Patna.

29. Satyendra Kumar son of Shambhu Prasad Yadav resident of Village Raghunathpur, PS- Naubatpur, Patna.

30. Vijan Kumar Singh son of Anil Kumar Singh Resident of Mohala Sirpalpur, PS- Punpun, PO- Punpun.

31. Ranjeet Singh son of Gaya Singh Resident of Mohalla Akanta Apartment, Kali Mandir Marg Bekar Bagh, PS- Dhanbad Town, Jharkhand.

32. Amresh Rai son of Ram Prasad Rai Resident of Birhiya Moharnpur, Dis- Vaishali.

33. Sunil Kumar son of Shayam Kumar Resident of Quarter No. 1 Patna Nagar Nigam Camp, PS- Gardhanibagh, Dis- Patna.

34. Pankaj Kumar son of Suresh Ram Resident of Polo Road Kausal Nagar, PS- Airpot, Dis- Patna.

35. Pawan Kumar son of Ram Lakhan Singh Resident of R. Block, PS- Sachiwalaye, Dis- Patna.

36. Prem Kumar son of Arjun Prasad resident of A.N. College Pani Tanki Boaring Road, Water Board Quarter No. 4, Flat No. 1, PS- Krishna Puri, Dis- Patna.

37. Sudhir Paswan son of Banshi Paswan resident of Khajpura, PS- Vetnari College, Dis- Patna.

38. Alok Kumar son of Shayam Kumar resident of near Gardanibagh Hospital Quarter No. 1, PS- Gardanibagh, Dis- Patna.

39. Shambhu Kumar son of Ramanand Saw resident of Mohalla Sona Gopal Pur Sampatchak, PS- Sampatchak, Dis- Patna. Versus ... ... Petitioner/s

2. The State of Bihar through the Chief Secretary, Government of Bihar, Patna. The Principal Secretary, Urban Development and Housing Department, Government of Bihar, Patna. Patna High Court CWJC No.11717 of 2021 dt.21-10-2022

5. The Deputy Secretary, Urban Development and Housing Department, Government of Bihar, Patna. The Patna Municipal Corporation, Maurya Lok Complex, Patna Through the Municipal Commissioner. The Municipal Commissioner, The Patna Municipal Corporation, Maurya Lok Complex, Patna. ... ... Respondent/s ====================================================== Civil Writ Jurisdiction Case No. 12524 of 2021 ====================================================== Bihar Local Bodies Employees Federation, Patna through its Pradesh Sangathan Mantri, Md. Asjad Alam, male age about 30 years, son of Late Muhammad Asraffudin, Ward no. 22, Ganimat Hussein Path, Nagar Parishad Supaul, Bihar. Versus ... ... Petitioner/s The State of Bihar through the Principal Secretary, Department of Urban Development and Housing, Government of Bihar, Patna. The Principal Secretary, Department of Urban Development and Housing, Government of Bihar, Patna. The Director, Municipality Administration Directorate, Department of Urban Development and Housing, Government of Bihar, Patna. ... ... Respondent/s ====================================================== Civil Writ Jurisdiction Case No. 12619 of 2021 ====================================================== Patna Nagar Nigam Staff Union through its General Secretary, Mr. Niraj Kumar Verma, Male Age about-58 Years, Resident of -24A, Ward No.-49, Mohammadpur, Sampathchak, Patna, Mahendru, Bihar-800006. Present Office at Water Board Colony, Boring Road, Patna-800013. Versus ... ... Petitioner/s The Union of India Through the Cabinet Secretary, Government of India The Law Secretary, Department of Legal Affairs, Government of India The State of Bihar through the Chief Secretary, Government of Bihar, Patna. The Principal Secretary, Urban and Housing Development Department, Government of Bihar, Patna. The Municipal Commissioner, Patna Municipal Corporation, Patna. ... ... Respondent/s Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 ====================================================== Civil Writ Jurisdiction Case No. 12809 of 2021 ====================================================== Binod Kumar Yadav S/o Shri Jai Prakash Yadav R/O Near Shiv Mandir, Godavari, P.O.- Chand Chaura, Gaya, Bihar- 823001. Chunna Khan S/O Shri Habib Khan R/O Neemgali, Panchaitiya Akhara, Gaya, Bihar- 823001. Versus ... ... Petitioner/s The State of Bihar through the Chief Secretary, Government of Bihar, Patna. The Principal Secretary, The Urban Development and Housing Department, Government of Bihar, Patna. The Municipal Commissioner, Gaya Municipal Corporation. ... ... Respondent/s

3. ====================================================== Appearance : (In Civil Writ Jurisdiction Case No. 11717 of 2021) : For the Petitioner/s For the Respondent/s : Ms. Mayuri, Advocate Mr. Kamleshwar Pandey, Advocate Dr. K.N. Singh (ASG) Mr. Alok Kumar Jha, CGC Mr. Sriram Krishna, JC to ASG Ms. Prakritita Sharma, JC to ASG Mr. Lalit Kishore, Advocate General For the State Mr. Subhash Prasad Singh, G.A. 3 : For the PMC : Mr. Pawan Kumar AC to AG Mr. Prasoon Sinha, Advocate (In Civil Writ Jurisdiction Case No. 5713 of 2020) : For the Petitioner/s Mr. Y.C. Verma, Sr. Advocate Ms. Priyanka Singh, Advocate Mr. Anuj Kumar, Advocate Mr. Madhav Raj, Advocate Mr. Lalit Kishore, Advocate General For the State Mr. Pankaj Kumar, SC-12 : Mr. Pawan Kumar AC to AG (In Civil Writ Jurisdiction Case No. 9047 of 2020) : For the Petitioner/s : For the State Dr. Anjani Pd. Singh, Advocate Mr. Abbas Haider, SC-6 Mr. Pawan Kumar AC to AG Mr. Prasoon Sinha, Advocate For the PMC : (In Civil Writ Jurisdiction Case No. 12524 of 2021) : For the Petitioner/s Mr. Siddharth Prasad, Advocate Mr. Sunit Kumar, Advocate Ms. Surya Nilambari, Advocate Mr. Om Prakash Kumar, Advocate Mr. Subash Prasad Singh, GA-3 For the State :

Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 Mr. Pawan Kumar, AC to AG (In Civil Writ Jurisdiction Case No. 12619 of 2021) : For the Petitioner/s Mr. Rajeeva Roy, Sr. Advocate Mr. Akash Keshav, Advocate Ms. Akansha Malviya, Advocate Mr. Shashwat, Advocate Mr. Vishal Kumar Singh, Advocate Mr. Deepak Kumar Singh, Advocate For the Union of India : Dr. K.N.Singh, A.S.G. For the State Mr. Pawan Kumar AC to AG Mr. Prasoon Sinha, Advocate For the PMC : : Mr. R. K. Sharma, CGC Mr. Lalit Kishore, Advocate General (In Civil Writ Jurisdiction Case No. 12809 of 2021) : For the Petitioner/s For the Respondent/s Mr. Pawan Kumar AC to AG : Ms. Mayuri, Advocate Mr. Kamleshwar Pandey, Advocate Mr. Lalit Kishore, Advocate General : Mr. Subhas Prasad Singh, G.A. 3 Mr. Rabindra Kumar Priyadarshi, Advocate For the GMC ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE HONOURABLE MR. JUSTICE S. KUMAR CAV JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE) Date : 21-10-2022 The following questions arise for consideration in the present set of writ petitions: (i) Whether the impugned amendments brought in by virtue of Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021) are repugnant to the Constitution (Seventy Fourth) Amendment Act, 1992? (ii) Whether the impugned provisions of Bihar Municipal (Amendment) Act, 2021 are in contravention of their parent Act, i.e. Bihar Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 Municipal Act, 2007 (Bihar Act 11, 2007)? (iii) Whether the Bihar Municipal (Amendment) Act, 2021, restricting 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? (iv) Whether the expression “enable them to function as Institutions of self-government” under Article 243W of the Constitution of India would encompass the power of the Municipal Body to have complete freedom and right of selection, appointment, posting and transfer of its employee(s)? Impugned Legislation

2. The present set of writ petitions lay challenge to Sections 36, 37, 38, 40A, 41 and 43 of Chapter V of the Bihar Municipal Act, 2007 (hereinafter referred to as the “Municipal Act”) and subsequent amendment to Sections 36, 37, 38 and 41 of the said Act, introduced on 31.03.2021 vide the Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021) (hereinafter referred to as the “Amendment Act”).

3. By virtue of existing Chapter V (as amended on

31.03.2021), the power to select; appoint; post; and transfer an employee of a Municipality now vests with the State Government, even though for the purpose of salary; wages and Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 all pecuniary benefits, the responsibility is that of a former. Is this permissible in law? Is what we are called upon to answer.

4. Petitioners, Dr. Ashish Kumar Sinha & Ors., in CWJC No.11717 of 2021 lay challenge to Chapter V of the “Municipal Act” (Sections 37, 38, 40 40A, and 43) and subsequent amendment to Sections 36, 37, 38 and 41 of the said Act, introduced on 31.03.2021 vide the “Amendment Act”.

5. Petitioners, Bihar Local Bodies Employee Federation & Ors., in CWJC No. 5713 of 2020 lay challenge to the amendment brought in Sections 36, 38 and 41 by virtue of the “Amendment Act.”

6. Petitioners, Ramesh Kumar & Ors., in CWJC No.9047 of 2020 sought a declaration that in view of Section 37 (3) of the “Municipal Act”, conferring powers upon the Empowered Standing Committee (ESC) to prepare and maintain a schedule of posts of officers and other employees constituting the establishment of Municipality and Rule 10(a) of the Bihar Municipal empowered standing Committee Conduct of Business Rules, 2010 (hereinafter referred to as “Conduct of Business Rules, 2010”) and to take decision regarding appointments, promotions, benefits and other matters in connection with and incidental thereto about the establishment of Municipality, the Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 State Government does not have any jurisdiction to interfere in the functioning of Municipality.

7. Petitioner, Bihar Local Bodies Employees Federation, Patna, in CWJC No.12524 of 2021 lays challenge to the amendment brought in Sections 36 and 38 of the “Amendment Act”.

8. Petitioner, Patna Nagar Nigam Staff Union, in CWJC No.12619 of 2021 apart from claiming identical relief in striking down the amendment to Sections 36, 37, 38 and 41, also questions the constitutionality of amendment to Section 67 of the Bihar Municipal Act vide Bihar Municipal (Amendment) Act,

2020. The petitioner also seeks quashing of three Notifications/Letters- Notification bearing No.1840 dated

12.05.2021, Annexure P/9 to this petition (Page-85); Notification bearing No.1843 dated 12.05.2021 (Page-90); letter bearing no 2197 dated 30.06.2021 (Page-94); letter bearing no 3453 dated

29.06.2018, Annexure P/2 to this petition (Page-47).

9. Petitioners, Binod Kumar Yadav & Anr, in CWJC No.12809 of 2021, seek similar reliefs.

10. Though some petitioners laid challenge also to certain provision of Chapter V, Sections 36, 37, 38, 40A, 41 and 43; Chapter VI, Section 45 and Chapter XV, Section 127 of the Bihar Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 Municipal Act, 2007 as being in violation of the Constitution of India, but the same is now, for the purposes of this adjudication, restricted only to the validity of the Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021), with liberty to file separate writ petitions. Here only we clarify that on the objection of the State, technical in nature, we leave the validity of Section- 43 and other provisions of the Municipal Act to be decided in appropriate proceeding.

11. Though the State has filed separate response in some of the petitions, however, a comprehensive response is by way of a counter affidavit, supplementary counter affidavit and 2nd supplementary counter affidavit filed in CWJC No.11717 of 2021, titled as Dr. Ashish Kumar Sinha v. The Union of India & Ors., which we refer for the purpose of adjudication of the lis.

12. The State, as is evident from the response, has tried to justify the “Amendment Act”, i.e. the Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021) by pleading inter alia as under:- Counter affidavit dated 20.09.2021( Page 136) “9. That the Act, 2007 was enacted by the legislature of the State of Bihar to consolidate and amend the laws relating to Municipal Government in the State of Bihar in conformity with the provisions of the Constitution of India as amended by the Constitution (Seventy-fourth Amendment) Act, 1992 based on Principles of participation in, and decentralization, Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 autonomy and accountability of Urban Self Government at various levels to introduce reforms in financial management. The Act, 2007 has been enacted in the light of the provisions contained in part IX-A (The Municipalities) of the Constitution of India.” “10. That for quite sometime a need for amendments of the provisions contained in Sections-36,37,38,41,53,56 and 435 of the Act,2007 was being felt by the State Govt. on account of practical difficulties, implementation related problems and change of policy of the State Government relating to Group-D services.” “12. That it is worth mentioning here that the State Government took a conscious policy decision for filling up Group-D posts like Sanitation Workers etc. in the ULBs of Bihar through Outsourcing System and in this regard, UD & HD Letter No. 3453 dated 29.06.2018 was issued to all Municipal bodies by fixing norms for personnel to be engaged through outsourcing. Implementation status of outsourcing of group-D employees has also been under enquiry by the Ld. Lokayukta, Bihar, in which order dated 28.11.2019 was passed with a clear observation that State Government shall take necessary steps for getting the Policy of outsourcing of Group- D services be implemented by all Municipal Bodies in letter and spirit and the copy of the said order should be circulated to all Municipal Bodies for its compliance.” “13. That, recently, a lot of practical difficulties were being faced due to Municipal Level Cadre of Group-C posts of Municipal Establishment and therefore, it was thought proper to create State Level Cadre of Group-C Municipal Posts in order to remove procedural problems in the matter of appointment of Group-C Municipal Posts. Yet another reason for making the Group-C Municipal posts State Cadre post is that due to absence of any specified institution for making selection of Group-C Municipal posts at the Municipal Level, a lot of procedural problems were being encountered in fair appointment of Group-C Municipal Posts.” “14. That in view of the aforementioned reasons, the necessary amendments in Sections-36,37 and 38 have been made by the impugned Amending Act, 2021 and now, the appointing authority of Group-C Municipal Post is Municipal Administration Directorate under UD & HD, the Group-C post will be State Level Cadre.” Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 “15. That the provisions contained in section-41 of the Act, 2007 relating to appointment of officers of State Government for municipality was causing hurdles/obstacles to the State appointed officers in free and fair discharge of their duties due to provision that the officer of the government so appointed shall be the under administrative control of Empowered Standing Committee, has to be withdrawn by the State Government if, a resolution to that effect is passed by the Councilors in a meeting called for this purpose by a 2/3 majority of the total number of Councilors holding office for the time being. Considering the aforementioned problem the State Government has decided to amend the section-41 of the Act, 2007 and therefore, deleted the second proviso which gave control to the Empowered Standing Committee over State Government Officers.” (Emphasis supplied) Supplementary affidavit dated 23.12.2021(Page 167) “7. That by way of this supplementary counter affidavit aims and objectives of the amendments made vide Bihar Municipal (Amendment) Act, 2021 are being explained and summarized point wise as herein below:- I. Sections 36, 37 and 38 A. That prior to amendment of Sections 36,37 & 38 of the Act, 2007, the procedure was not prescribed for appointment on class-C post in the municipalities. In absence of procedure for appointment, it was difficult to appoint group-C employees in the municipalities. B. Prior to amendment, the municipalities were empowered to make appointments on Class-C post. There were large scale complaints of illegal appointments regarding huge number of posts, which were made without any proposal and without following the prescribed procedure in respect of the qualification and method of appointments and these appointments were made without following the rules of the appointment. C. After the appointment, State Government has been empowered to make appointments on Class-C posts since the Class-C posts were declared as State cadre posts. Pursuant to such amendments the appointment on Class-C post have become fair and transparent as such appointment would be Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 made following the procedure prescribed by the Commission at State Level. Consequent to such appointments, efficient and qualified employees would be available to the municipalities. D. Prior to the amendment, the employees on Class-C posts used to remain working in a particular municipal office in a long time or for the whole service period, which was proving counterproductive and was one of the main reasons for corruption and nexus with unscrupulous elements. It was felt necessary to bring amendments and after the amendments it became possible to make transfer of group-C employees from one municipality to the other in the State of Bihar which would result in proper administration and administrative managements. F. There shall be uniformity in selection procedure because of the post being State cadre post and the municipalities would be having efficient and experienced employees. H. Therefore, by the impugned Amending Act, 2021 now the appointing authority of Group-C Municipal Post is Municipal Administration Directorate under UD & HD and the Group-C post will be the State Level Cadre. In view of aforementioned difficulties/situations, the necessary amendments in Section 36, 37 and 38 have been made by the impugned Amending Act, 2021. II. Section 41 A. Prior to the amendment, the officers of State Government posted in municipalities were to be removed by 2/3 majority votes of the total members of the municipality. It was observed that sometimes the officers who were strict in discharge of their official duty or none complying to some malpractices etc. were returned and removed unceremoniously by a proposal passed by municipality, which was not proper for administration of municipality. In this situation State Government Officers were facing difficulties in execution of their duties properly and officers were at times, compelled to perform their duties under undue pressures also. B. The State Government Officers posted in municipalities are who are under “control the officers of State cadre, superintendence of State Government.” In the light of administrative point of view, such officers should have been under direct control of State Government and they should be withdrawn/transferred by the State Government as and when Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 requires, so that they perform their duties in free and fair environment. Hence, the State Government has decided to delete the second proviso of Section 41.” (Emphasis supplied) 2 nd Supplementary affidavit dated 25.02.2022(Page 219) “22. That prior to the amendment of section 41 of the Act, 2007, the officers of State Govt. posted in municipalities were to be removed by 2/3 majority votes of the total members of the municipality. It was observed that sometimes the officers who were strict in discharge of their official duty or none complying to some malpractices etc. were returned and removed unceremoniously by a proposal passed by municipality, which was not proper for administration of municipality, which was not proper for administration of municipality. In this situation state govt. officers were facing difficulties in execution of their duties properly and officers were at times, compelled to perform their duties under undue pressures also.” “42. That it is submitted that establishment of the municipalities is conducted and operated in state of Lassaiz has not any control upon the faire. The State Govt. administration of local bodies are supposed to act according to the will of the Empowered Standing Committee. The State Govt. has rather a Supervisory power over local Bodies lest they may not act in arbitrary and unfair manner.” (Emphasis supplied) Submissions

13. In challenging the constitutional validity of these provisions, the Court heard all the learned counsel, including the Amicus Curiae at length. In fact, members of the Bar were openly requested to assist. Also perused the written submissions filed by them. The submissions made, succinctly are recorded as under:- Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 Submissions on behalf of petitioners:

13.1 Ms. Mayuri, learned counsel for the petitioner(s) challenges the constitutionality of the Municipal Act and Amendment Act on grounds that- (i) It is in contravention of objects and reasons enshrined in the Seventy Fourth Amendment Act to the Constitution of India, and the Municipal Act. In furtherance, she lays stress on the four basic tenets informing, understanding and interpretation of the constitutional amendment as also the State Legislation - (a) devolution of powers; (b) decentralization; (c) autonomy; and (d) vibrant unit of self-government. (ii) The Amending Act cannot be contrary to the Parent Act. Placing reliance on Section 22 and 27-B of the Act as representing cadre autonomy available to the Municipal Bodies, is taken away by the “Amending Act”. (iii) On Section 40A, she submits that the power of appointment and administrative control of employees which should rest with the Empowered Standing Committee (ESC) is being taken away by repeated amendments, resulting in concentration of power with the State Government which is against the spirit of devolution of powers. In support, she relies on Section 37 of the Bihar and Orissa Municipal Act, 1922, Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 which provided for the appointment of Municipal Officer on terms and conditions to be decided by the Municipal Corporation. (iv) The amendments erase administrative control of municipal bodies over its employees. The lack of accountability and answerability would encourage indifference and insubordination which is not in consonance with the idea of good governance. (v) The Amendment Act goes against the Constitution as the intention of the legislature cannot be said to be that of conferring such limited and truncated powers when they have created an office of Mayor/Chief Councillor (being an elected position) only to treat it unfairly. (vi) The object and reasons of the Amending Act are unreasonable and arbitrary. Taking aid of the pleaded stand of the State Government, it is argued that intent contravenes the Parent Act wherein prior to the amendment, the Empowered Standing Committee was entitled to supervise and control the employees. (vii) There is a conflict between the objective of the Amending Act and that of the Parent Act, i.e. the Municipal Act. The latter was made in furtherance of the provisions of the self- governance, devolution of powers etc. to bring the State in line Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 with the introduction of the third level of government while the former has been made with the objective of taking away the power of appointment as well as rendering moot any administrative control the municipality had over its officers. (viii) Further, it was contended that, it is not the power of appointment which is intended to be taken away by the impugned legislation, instead it is what happens after appointment, that is drastically affected by this legislation. Section 38 and Section 40A have been cited to show that the Rules of appointment were already being made by the State and it is the consultation power of the Empowered Standing Committee that has been taken away. Thus, the control aspect stands fundamentally altered. (ix) The supplementary counter affidavit of the State casts severe aspersions on the functioning of the Municipality without leading any evidence in support of the same. (x) Group- C posts although are converted to State Cadre, the cost incurred in meeting expenses of salary and other emoluments will be borne out of the Municipal Funds. Sub- section (2) of Section 39 of the Municipal Act grants a power to the Municipality to provide pension, gratuity, bonus etc. and transfer from one autonomous body to another will lead to confusion in regard to such payment. Patna High Court CWJC No.11717 of 2021 dt.21-10-2022 (xi) In support, she refers to and relies on the following decisions:- (i) Kaushal Kaushik v. State of Bihar1; (ii) Santosh Kumar v. State of Bihar2; (iii) Afjal Imam v. The State of Bihar3 ; (iv) T. Devender v. State of Andhra Pradesh4 ; (v) Maharashtra State Board of Secondary & Higher Secondary Education v. Paritosh Bhupeshkumar Sheth 5 ;(vi) State of Gujarat v. Raman Lal Keshav Lal Soni6; (vii) B.N. Narajan v. State of Mysore7; (viii) Sajjan Singh v. State of Rajasthan8; (ix) In Re, Berubari Union9; and (x) Rajnarain Singh v. Chairman Patna Administration Committee Patna10 .

13.2 Mr. Yogesh Chandra Verma, learned Senior Advocate, has made the following submissions:- (i) The Amendment Act is in complete violation of the provisions contained in Article 243W of the Constitution of India. It empowers the State Legislature to make laws according