New Delhi: With a fresh tussle erupting between the AAP-led Delhi government and the chief secretary over the subject of services, the bone of contention lies on whether the former has any powers to make laws on services and whether standing orders of ministers have any effect on the proposals related to the controversial subject.
On Friday, Services and Vigilance Minister Atishi wrote to the Lieutenant Governor over the rejection of her order by chief secretary Naresh Kumar, stating that the Government of National Capital Territory of Delhi (Amendment) Act, 2023 gives only specific powers related to services to the administrator, while the powers in the remaining areas of the subject lie with the elected government.
At a press briefing Thursday, Atishi stated that Kumar had “refused” to accept her order directing a coordination mechanism between the government departments and the National Capital Civil Service Authority (NCCSA). She added that the chief secretary’s letter stated that the elected government does not have the power to decide.
To be precise, the said order — details of which were announced by Atishi on 16 August — directed that all proposals on transfers, postings, vigilance and non-vigilance matters will require the concerned minister’s approval, prior to being tabled before the NCCSA.
While the services minister had noted that the government was looking to hold the NCCSA meetings at the earliest, with the last being in June, ThePrint explains as to why senior Delhi government officials believe that the situation has arrived at yet another stalemate.
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Rules for issuing standing orders
Section 45(J), sub-section 5, of the newly-passed act was mentioned as the sole reason for the chief secretary rejecting the order, according to Atishi.
This provision states that the chief secretary, and the secretary of a department, will be responsible to ensure that provisions in the act are being complied with.
It adds that either officials can bring to the notice of the concerned minister, chief minister or L-G about any deviation from the provisions.
According to the act, ministers can give directions through standing orders to dispose of proposals or matters related to their departments. However, these orders cannot be contradictory to the provisions in the act and the Constitution.
“The orders issued by the services and vigilance minister are enabled by the provisions in the act, and they are not contradictory. But if the chief secretary has refused to agree with this order, then it is unlikely that the NCCSA meetings will be held anytime soon,” a senior Delhi government said.
However, another senior Delhi government official told ThePrint that the standing orders issued by the minister were contradictory to the act, adding that she was not a NCCSA member and was tweaking the functioning of the three-member body.
The three-member NCCSA is headed by the chief minister that makes recommendations to the L-G on transfers, postings and vigilance matters, among others. The Delhi chief secretary and principal secretary, home department are the other members.
The NCCSA was formed through the Centre’s 19 May ordinance — which was replaced by the act — that nullified the Supreme Court’s 11 May order ruling that the Delhi government has control over the civil servants under it.
Further, the amendments in the Act did not retain a provision from the ordinance that prevented the Delhi assembly from making any laws related to services.
Stalemate over NCCSA meetings
“The assembly can make laws on services, but these cannot be laws that are in contravention to the act and the Constitution. For instance, you cannot make a law that changes NCCSA functioning, because that has already been defined in the act,” said the second Delhi government official.
The official noted that even in a scenario where the Delhi assembly passes a law that requires proposals to be approved by ministers before being sent to the NCCSA, it would not be valid.
He pointed towards Article 239-AA, sub-section 3(c), which states that if any law passed by the legislative assembly is in conflict with any provision of a law made by Parliament, then the law stands void.
Given the latest tussle casting uncertainty on whether and when the NCCSA will hold the next meeting, the official said that it is unlikely.
While the quorum for NCCSA meetings stands at two, the chief minister’s approval will be required to hold the meetings. “Even in a scenario where the two civil servants want to hold a meeting, they will still require the CM’s approval. Further, the act does not give overriding powers to the L-G to convene NCCSA meetings. The last meeting was held on 20 June, and it is unlikely to take place any time soon,” the official explained.
(Edited by Tony Rai)
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