New Delhi: In a bid to nullify the effect of the Supreme Court decision that declared the Delhi government has administrative and legislative control over “services”, the Centre Friday promulgated an ordinance creating a new statutory authority to handle transfer and posting of bureaucrats in the national capital.
The judgment delivered by a five-judge Constitution bench last week, allowed the Arvind Kejriwal-led government to exercise its executive as well as legislative authority over the officers of various services, including those who are not recruited by it and have been allocated to Delhi by the Union of India. This included the authority to transfer and post officers within the government, frame service rules for them or undertake any other measure for governance purposes, including passing a law in the legislative assembly.
However, the ordinance now creates a new statutory authority – the National Capital Civil Service Authority (NCCSA). This body will be headed by the Delhi Chief Minister in addition to the Chief Secretary and the Principal Secretary of the Home department.
What is the issue over the control of services in Delhi, what did the Supreme Court say on this, and what does the new ordinance say? ThePrint explains.
National Capital Civil Service Authority
The new ordinance begins saying that there is no parliamentary law dealing with the subject of services under Entry 41 of List II (State list) of Seventh Schedule of the Constitution, with respect to Delhi. The Seventh Schedule deals with the division of law-making powers between the Centre and the States. It lays down the subjects on which the Centre and the States can make law. Entry 41 of List II (State list) of the Schedule says “State public services; State Public Service Commission”.
The ordinance now adds several provisions to the Government of National Capital Territory of Delhi Act 1991, undoing the effect of the Supreme Court’s last week’s judgment provision after provision. For instance, it adds a section to this law to bar the Delhi Assembly from making any laws on any matter related to Entry 41 of List II of the Seventh Schedule of the Constitution. Therefore, it bars the Delhi government from making any laws related to services.
It also gives the power to the central government to make rules on the tenure, salaries, allowances, and other conditions of service of officers and other employees appointed or posted in Delhi.
The Ordinance then goes on to create the National Capital Civil Service Authority “to make recommendations to the Lieutenant Governor (L-G) regarding matters concerning transfer posting, vigilance and other incidental matters” related to services.
It also adds a provision to the 1991 Act, saying that the Authority shall make all decisions on the basis of majority of votes of the members present and voting. This means that since this is a three-member authority, the two senior bureaucrats could overrule the decision of the Delhi chief minister.
Further, once the recommendation goes to the Raj Niwas, the L-G could differ with the recommendation and return it to the Authority for reconsideration. “In case of difference of opinion, the decision of the Lieutenant Governor shall be final,” the Ordinance asserts, giving the final word to the L-G.
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Article 239AA
At the core of the tussle between the Union and Delhi governments is Article 239 AA, which was effected through the Constitution (Sixty-ninth Amendment) Act 1991. The provision granted Delhi the special character of a Union Territory with a legislative assembly with the L-G — a representative of the central government — as its administrative head. This was also when Delhi was named NCT of Delhi.
Meanwhile, Article 239 of the Constitution deals with the administration of Union Territories and stipulates that every UT is to be administered by the President acting, to such extent as he/she thinks fit, through an administrator to be appointed by him.
The legal issues surrounding the administrative powers of the L-G in light of the special status of Delhi reached the Supreme Court in 2016-2017. On 4 July 2018, a five-judge Constitution bench ruled that Delhi is not a state, and that “the status of NCTD is ‘sui generis’, a class apart, and the status of the L-G of Delhi is not that of a governor of a state, rather he remains an administrator, in a limited sense…”
The L-G, the bench said, has to act on the aid and advice of the Council of Ministers on all matters except land, public order and police. The court also held that the executive powers of the Delhi government will extend to all subjects on which the assembly has powers to make laws.
Delhi has no Public Service Commission in Delhi. Since it is a UT, the public servants are either those who belong to the All India Services like IAS, IPS etc. or those who are recruited for all UTs.
SC verdict emphasised on federalism
In February 2019, a bench, comprising Justices A. K. Sikri and Ashok Bhushan, differed on the issue of ‘services’. In view of the split verdict, the matter was referred to a three-judge bench. This was then referred to a Constitution bench on 6 May last year.
Last week, a five-judge Constitution bench ruled in favor of the Delhi government. It, however, clarified that this control would not extend to services related to police, public order and land — which shall remain under the administrative control of the L-G.
In doing so, the Constitution bench had emphasised on the principle of federalism, observing, “If a democratically elected government is not provided with the power to control the officers posted within its domain, then the principle underlying the triple-chain of collective responsibility would become redundant. That is to say, if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted.”
(Edited by Tony Rai)
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