Can The Post Of Deputy Mayor In Municipal Corporation Be Reserved? Supreme Court To Consider

A Bench of Justices Surya Kant and JB Pardiwala issued notice after Senior Advocates Neeraj Kishan Kaul and Gopal Shankarnarayan, assisted by Advocate on Record Rahul Shyam Bhandari made preliminary submissions.

The Bench then framed the question: whether the post of mayor and deputy mayor could be reserved in one municipal corporation?

The SLP was filed against the Patna High Court which rejected the challenge against the government's move. However, as the triple test was not following by the State government and the State Election Commission while notifying the notifying seats to OBC/EBC category vide two notifications, the High Court termed it as "illegal" and "violative".

The petition filed in this regard states that by way of amendment dated April 2, 2022 brought in the Bihar Municipal Act, 2007 the State has amended Section 29 of the Act and extended the scope of reservation to the post of "Deputy Chief Councillor‟.

Before the Amendment, the Mayor and Deputy Mayor used to be elected by vote of ward councilors and seat of "deputy mayor‟ was not a reserved post since she exercises no independent function as per section 26 of the Bihar Municipal Act, 2007.

"…even otherwise providing election to the post of deputy chief councillor who is merely a nominal post and exercises his functions only in the absence of the chief councillor meets no reasoning and requirement rather it's a sheer waste of public exchequer and time", the plea states.

However, as per the mandate of Article 243-T particularly Article 243T(4) makes it clear that it is only the office of "chairpersons" in the municipalities which shall be reserved for the Schedule caste, Schedule tribes and women as the law provides. Article 243-T does not earmark or speak about reservation of the office of "Deputy Chief Councillor", the plea points out.

Even as per Section 26 of Bihar Municipal Act, 2007, a deputy chief councillor exercises no independent functions and he only exercises the powers and functions of a chief councillor in the absence of his duties, the petition avers.

"It is clear that the deputy chief councillor is merely a delegated post as per Section 26 of Bihar Municipal Act,2007and has no constitutional backing."

Coming to the High Court Judgement, the plea asserts that the before rejecting the petitioner's argument, no specific reasons were made by the Court.

"However, the High Court has completely erred in not considering that the petitioners themselves had relied on this judgment to contend the point that as per Article 243-T of the constitution of India it is only the office of „chairperson/ chief councillor‟ which is reserved in municipalities and the constitutional validity of which has been upheld in this judgment. That the present case was with respect to "Deputy Chief Councillor‟ who does not have the same authority, responsibility and functions under Bihar Municipal Act 2007 as that of chief councillor."

Further, the plea argues that the High Court while declaring the action of the State Government in reserving OBC/EBC category for municipal elections as illegal being in violation of the "triple test", has failed to appreciate that no requirements of the same 'triple test' were taken into account by the State before providing the reservation against the post of "deputy chief councillor".

On these grounds, plea seeks to set aside the Patna High Court. As interim prayer, the plea seeks to stay the 2022 Amendment concerning the reservation to the post of deputy chief councillor‟ till the final disposal.

Case Title: Om Prakash And Ors Vs The State Of Bihar And Ors | SLP [C] 18237/2022

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