Case Background
Multiple writ petitions were filed before the Patna High Court challenging the Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06 of 2021). The lead matter was CWJC No. 11717 of 2021 (Dr. Ashish Kumar Sinha & Others), along with CWJC Nos. 5713 of 2020, 9047 of 2020, 12524 of 2021, 12619 of 2021 and 12809 of 2021.
The petitioners included individual municipal employees, municipal staff unions, and federations representing local bodies’ employees. They questioned amendments to Chapter V of the Bihar Municipal Act, 2007, particularly Sections 36, 37, 38 and 41, brought in by the Bihar Municipal (Amendment) Act, 2021. Some petitions had also challenged other provisions, but during hearing, all sides agreed to confine the present adjudication to the validity of the 2021 Amendment Act.
The core grievance was that the 2021 amendments removed or sharply reduced the power of Municipalities and their Empowered Standing Committees (ESCs) to recruit, post, transfer and control municipal employees, especially Group-C staff. Instead, these powers were centralised with the State Government and the Directorate of Municipal Administration. The petitioners alleged that this went against the spirit of the 74th Constitutional Amendment and the basic structure of the Bihar Municipal Act, 2007, which was aimed at decentralisation and self-government.
The State of Bihar, through detailed counter affidavits and supplementary affidavits in CWJC No. 11717 of 2021, defended the amendments as a policy decision taken to curb corruption, remove “practical difficulties” in appointments, and ensure fair, transparent recruitment through a State-level cadre system. The Union of India was also a respondent in some petitions, but the core defence came from the State and its Urban Development and Housing Department.
The Patna High Court, speaking through the Hon’ble Chief Justice and Hon’ble Mr. Justice S. Kumar, reserved judgment after extensive arguments from all sides, including assistance from an Amicus Curiae. On 21.10.2022, the Court delivered a detailed CAV judgment examining constitutional provisions, the scheme of the Bihar Municipal Act, and the effect of the 2021 amendments.
What the Court Examined and Decided
The Court framed four central questions: (i) whether the 2021 amendments were repugnant to the 74th Constitutional Amendment; (ii) whether they contradicted the Bihar Municipal Act, 2007 itself; (iii) whether restricting appointment and transfer powers truncated cadre autonomy and municipal self-government; and (iv) whether “enable them to function as institutions of self-government” in Article 243W covers municipal control over selection, appointment, posting and transfer of employees.
First, the Court traced why Parts IX and IX-A (Panchayats and Municipalities) were added to the Constitution by the 73rd and 74th Amendments. It noted that, before 1992, local bodies were weak and often under prolonged supersession, with inadequate devolution of powers. The 74th Amendment aimed to convert municipalities into “vibrant units of self-government” with constitutional protection, decentralisation, autonomy, and accountability.
The Bihar Municipal Act, 2007 was enacted explicitly to bring Bihar’s municipal laws in line with Part IX-A, “based on the principles of participation in, and decentralization, autonomy and accountability, of urban self-government at various levels”. The Court described this Act as a “complete code” covering structure, powers, staffing, control and supervision of municipalities.
The Court then carefully set out the original (pre-2021) scheme of Sections 36, 37, 38, 40A, 41 and 43 of the Bihar Municipal Act:
Section 36 listed key municipal officers (such as Municipal Commissioner, Executive Officer, Finance Officer, Engineer, Health Officer, Secretary etc.), allowed appointments either by the State Government in consultation with the ESC, or by the ESC with prior State approval, and gave the ESC a role in deciding necessity of posts, terms and continuation.
Section 37 required each Municipality to classify posts into categories A, B, C and D, and to maintain an Establishment Schedule. The ESC and Municipality had defined roles in reviewing, revising and sanctioning posts, subject to general norms and State approval for expansion.
Section 38 made the Chief Municipal Officer or other senior municipal officers the appointing authority for categories A, B, C and D (with ESC involvement for C and D).
Section 40A (added in 2014) already gave the State Government power to frame service rules for recruitment, posting, transfer, promotion, disciplinary action etc., but within the basic structural framework where the municipality and ESC still had a say in staffing and control.
Section 41 allowed the State Government to post its officers (e.g. Executive Officer, Finance Officer, Engineer, Health Officer) to municipalities, but placed them under the administrative control of the ESC, and crucially allowed the Municipality, by a two-thirds majority resolution, to require their withdrawal after one year of posting.
Section 43 allowed creation of State-level common municipal service cadres, with the Director of Local Bodies as appointing and transferring authority, but within the general design of shared control and municipal participation.
In contrast, the 2021 Amendment Act:
Changed Section 36(2) and (3), and deleted sub-sections (4) to (9). The term and all service conditions of officers under Section 36(1) were now to be prescribed solely by the State Government. ESC’s consultative and regulatory role was removed.
Deleted Section 37(4) to (10), thereby wiping out ESC and municipal control over establishment size, contractual engagements, and recruitment mechanisms, even though the Municipality remained responsible for classifying posts and maintaining an Establishment Schedule under Section 37(2)-(3).
Replaced Section 38 so that appointing authority for category A and B posts became the Government, and for category C posts, the Directorate of Municipal Administration under the Urban Development and Housing Department, with Group-C as a State-level cadre. Category D posts were separately sought to be filled through outsourcing, as shown by Government correspondence relied upon by the State.
Amended Section 41 by substituting the first proviso so that officers of the State posted to municipalities “may be withdrawn by the State Government suo motu”, and deleting the second proviso which had permitted withdrawal on a two-thirds municipal resolution after one year.
The State justified these changes by citing large-scale complaints of illegal appointments to Group-C posts, absence of clear procedures, lack of a competent recruiting body at municipal level, and the alleged problem of Group-C employees remaining in one municipality for their entire service, creating scope for corruption. It also said State officers posted in municipalities were being “unceremoniously removed” through municipal resolutions, sometimes because they were strict or refused malpractices, which allegedly hurt administration.
The petitioners, however, argued that:
The amendments dismantled municipal cadre autonomy and ESC control, completely reversing the devolution envisaged by the 74th Amendment and the 2007 Act.
Self-government under Article 243W necessarily included effective administrative control over staff implementing municipal policies, not just political control.
The State already had wide supervisory powers under Sections 65–69 to inspect, call for records, annul unlawful actions, direct rectification, and even appoint officers to enforce its orders or dissolve municipalities. Instead of using those powers against proven wrongdoing, it had chosen to strip all municipalities of their basic staffing powers without concrete evidence of systemic abuse.
The amendments were a “colourable exercise of power”, manifestly arbitrary and disproportionate, and in direct conflict with the objects of the Bihar Municipal Act itself.
The Court then turned to Article 243W. It analysed the terms “may” and “endow” and held that, in constitutional context, “may” in Article 243W must be read as “shall”. The State Legislature is not free to withhold powers necessary for municipalities to function as institutions of self-government. “Endowment” carries a sense of permanence and vesting; once powers are devolved to make local bodies effective institutions of self-government, they cannot be casually withdrawn or hollowed out through ordinary legislation.
The Court emphasised that Entry 5 of List II itself speaks of “local self-government”, and any State law made under that entry must further, not frustrate, that purpose. While the State has legislative competence over local government, it cannot exercise that power in a manner that emasculates constitutionally recognised municipal bodies and renders them dependent on the State for every staffing decision.
The Court also examined the principle of “manifest arbitrariness” under Article 14. It held that the 2021 amendments, particularly Sections 2, 3, 4 and 5 of the Amendment Act (altering Sections 36, 37, 38 and 41), were:
Capricious and disproportionate: they gave sweeping control over municipal employees to the State and its Directorate, while leaving municipalities fully responsible for delivering services and fulfilling their constitutional duties under the Twelfth Schedule.
Unbacked by evidence: the State’s reliance on “practical difficulties”, “procedural problems”, and vague references to corruption was not supported by any concrete inquiries, reports, or specific instances placed on record.
Contradictory to the Parent Act: they clashed directly with provisions like Section 22 (vesting executive power in the ESC) and Section 27-B (making the Chief Municipal Officer subject to ESC supervision), as well as the original establishment and appointment scheme in Sections 36–38.
On Section 41, the Court stressed that taking away the municipal power to seek withdrawal of an unsatisfactory State officer through a two-thirds resolution left municipalities “optionless/remediless”. They would be forced to work with officers they had no confidence in, while still being accountable to the people for local governance. This was inconsistent with the idea of self-government and democratic accountability.
Finally, the Court held that, taken together with the State’s existing supervisory powers under Sections 65–69, the 2021 amendments created an “overarching and overbearing control” by the State over municipal bodies. The elected ESCs were reduced to “mere receptacles” without effective control over staff, which was constitutionally impermissible.
Accordingly, the Patna High Court declared the Bihar Municipal (Amendment) Act, 2021 (Bihar Act 06, 2021) unconstitutional to the extent of amendments to Sections 36, 37, 38 and 41 of the Bihar Municipal Act, 2007 (i.e. Sections 2 to 5 of the Amendment Act). It restored the 2007 Act to its pre-amendment position in these respects.
The Court also held that rules framed in 2021 creating the “Bihar Municipal Revenue and Accounts Cadre” and “Bihar Municipal Clerical Cadre”, which made the Director, Municipal Administration, the appointing authority based on the amended Section 38, would stand “modified to the extent that they are inconsistent” with Section 38 as it stood prior to the 2021 amendment and with the Court’s directions.
Orders issued by the State on 30.06.2021 transferring about 170 employees across municipal bodies had already been stayed by the Government itself due to pay and pension incongruities; the Court therefore did not issue any further directions on those transfers. Questions relating to outsourcing of Group-D work and the validity of Section 43 and other provisions of the Municipal Act were expressly left open to be agitated in separate proceedings.
Why This Judgment Matters
This judgment has direct and practical consequences for municipal employees, elected councillors, and residents of urban local bodies in Bihar.
First, it restores the position where Municipalities, through their Empowered Standing Committees and Chief Municipal Officers, have a meaningful say in the appointment, posting, transfer, discipline and withdrawal of officers working within their areas, subject to State supervision. This means local bodies again have tools to ensure that the officers implementing their decisions are answerable to them, not only to the State Secretariat.
Second, it sends a clear message that while the State can and should fight corruption and illegal appointments, it must do so within the existing constitutional and statutory framework, using its broad supervisory powers, rather than by stripping all municipalities of their basic staffing powers. Vague references to “practical difficulties” will not justify laws that undercut local self-government.
Third, the judgment deepens the meaning of “self-government” under Article 243W. It clarifies that real self-government is not limited to holding elections and passing resolutions. It includes having sufficient control over the executive machinery (officers and staff) to implement those resolutions. If the State alone controls the cadre while the municipality remains fully responsible to the people, the constitutional promise of local democracy is not fulfilled.
Finally, for citizens and activists, the decision reaffirms that municipal bodies are not mere extensions or departments of the State Government. They are constitutionally recognised institutions of local self-government, with a right to a degree of autonomy and administrative control necessary to serve their communities effectively.
Legal Issues and Answers
Issue: Are the 2021 amendments to Sections 36, 37, 38 and 41 of the Bihar Municipal Act repugnant to the 74th Constitutional Amendment (Part IX-A)?
Answer: Yes. The Court held that these amendments recentralised power with the State and undermined municipalities as institutions of self-government, violating Article 243W and the constitutional scheme of decentralisation.
Issue: Do the impugned amendments contradict the scheme and purpose of the Bihar Municipal Act, 2007 itself?
Answer: Yes. The amendments conflicted with core provisions (such as Sections 22, 27-B and 37) and with the Act’s preamble, which is based on decentralisation, autonomy and accountability of urban self-government.
Issue: Does restricting municipal power over appointment, posting and transfer of employees truncate cadre autonomy and effective municipal functioning?
Answer: Yes. By shifting control of Category A, B and C posts almost entirely to the State and its Directorate, and by removing the ESC’s role, the amendments left municipalities responsible for functions but without control over executing staff, which the Court found unconstitutional and manifestly arbitrary.
Issue: Does “enable them to function as institutions of self-government” in Article 243W include municipal power over staff selection, appointment, posting and transfer?
Answer: Yes. The Court held that self-government necessarily includes adequate administrative control over employees; otherwise, elected bodies cannot effectively implement their policies and be genuinely accountable to the people.
Cases Cited by the Court
- The Court referred to and relied upon a long line of decisions, including but not limited to:
- K. Krishna Murthy (Dr) v. Union of India, on the objectives of democratic decentralisation under the 73rd and 74th Amendments.
- Bondu Ramaswamy v. Bangalore Development Authority, on strengthening democratic governance at the grassroots under Part IX-A.
- Bhanumati v. State of Uttar Pradesh, on panchayats as institutions of self-government and the transformative role of the 73rd Amendment.
- Government of NCT of Delhi v. Union of India, on constitutional governance, federalism and democratic accountability.
- Ravi Yashwant Bhoir v. Collector, Raigad, on local self-government having complete autonomy as a basic democratic unit.
- Afjal Imam v. State of Bihar, on the powers and centrality of the Empowered Standing Committee in Bihar’s municipal structure.
- Shayara Bano v. Union of India, on “manifest arbitrariness” as a ground for striking down legislation under Article 14.
- P. Laxmi Devi v. State of Andhra Pradesh and other decisions on the strong presumption of constitutionality and limits of judicial review.
Case Details
Case Numbers:
- Civil Writ Jurisdiction Case No. 11717 of 2021
- Civil Writ Jurisdiction Case No. 5713 of 2020
- Civil Writ Jurisdiction Case No. 9047 of 2020
- Civil Writ Jurisdiction Case No. 12524 of 2021
- Civil Writ Jurisdiction Case No. 12619 of 2021
- Civil Writ Jurisdiction Case No. 12809 of 2021
Case Title (lead matter):
Dr. Ashish Kumar Sinha & Others v. The Union of India & Others
Citation:
- 2022 (4) PLJR 517
Coram:
- Hon’ble the Chief Justice (Sanjay Karol, CJ)
- Hon’ble Mr. Justice S. Kumar
Date of Judgment:
- 21.10.2022
Nature of the Case:
Constitutional writ petitions under Article 226 challenging the validity of the Bihar Municipal (Amendment) Act, 2021 and consequential service rules and administrative orders relating to municipal employees.
Advocates:
For petitioners in CWJC No. 11717 of 2021: Ms. Mayuri, Advocate; Mr. Kamleshwar Pandey, Advocate
For petitioners in CWJC No. 5713 of 2020: Mr. Y.C. Verma, Sr. Advocate; Ms. Priyanka Singh, Advocate; Mr. Anuj Kumar, Advocate; Mr. Madhav Raj, Advocate
For petitioners in CWJC No. 9047 of 2020: Dr. Anjani Pd. Singh, Advocate
For petitioners in CWJC No. 12524 of 2021: Mr. Siddharth Prasad, Advocate; Mr. Sunit Kumar, Advocate; Ms. Surya Nilambari, Advocate; Mr. Om Prakash Kumar, Advocate
For petitioners in CWJC No. 12619 of 2021: 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 petitioners in CWJC No. 12809 of 2021: Ms. Mayuri, Advocate; Mr. Kamleshwar Pandey, Advocate
For the Union of India: Dr. K.N. Singh, ASG; Mr. Alok Kumar Jha, CGC; Mr. Sriram Krishna, JC to ASG; Ms. Prakritita Sharma, JC to ASG; Mr. R.K. Sharma, CGC
For the State of Bihar: Mr. Lalit Kishore, Advocate General; Mr. Subhash Prasad Singh, G.A. 3; Mr. Pankaj Kumar, SC-12; Mr. Abbas Haider, SC-6; Mr. Pawan Kumar, AC to AG
For Patna Municipal Corporation: Mr. Prasoon Sinha, Advocate
For Gaya Municipal Corporation: Mr. Rabindra Kumar Priyadarshi, Advocate
Link to Judgment:
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