New Delhi: As the head of the administration, a Chief Secretary in Delhi exercises jurisdiction “of an administrative nature” over the entirety of all subjects that fall within the executive domain of the government of Delhi as well as those that lie outside the latter’s purview. Hence, the Centre is not divested of the power to appoint the Chief Secretary, the Supreme Court said Wednesday, while rejecting the Delhi Government’s view against Union of India’s unilateral decision to appoint someone to the said post.
A three-judge bench led by Chief Justice D.Y, Chandrachud also allowed the central government to extend by six months the term of present Chief Secretary Naresh Kumar, who is due for superannuation Thursday.
However, the bench clarified that its order is a prima facie opinion of the dispute that was brought before it by the Aam Aadmi Party (AAP)-led Delhi government.
The court chose to render a prima facie view on the issue because a Constitution Bench is looking into the validity of Government of National Capital Territory of Delhi (Amendment) (NCT Act), 2023, that wrested control over civil servants serving in the Government of National Capital Territory (NCT) of Delhi from the Delhi Government and vested it to the lieutenant governor (LG).
The amendment, which followed an Ordinance, overruled a May 2023 Constitution Bench judgment of the top court that held that a democratically elected government of Delhi should have control over its officers, except in matters of public order, police and land that fall within the purview of the central government.
It introduced a permanent authority as the National Capital Civil Service Authority, with the Delhi chief minister as its chairman, along with chief secretary, Delhi, principal secretary (home), Delhi, to make recommendations to the Delhi LG regarding matters concerning transfer and posting of officers who are not part of the three excluded departments, vigilance and other incidental matters. Additionally, the amendment added provision to allow the central government to appoint Delhi’s chief secretary.
In its order Wednesday, the top court referred to the amended NCT Act, transfer rules for officers, the Transaction of Business Rules under the NCT Act, as well as its May 2023 Constitution Bench judgment.
The order observed: “For the purpose of the present stage it is suffice to note that there can be no dispute about the basic position that the Chief Secretary, as the head of the administration, exercises jurisdiction of an administrative nature over the entirety of subjects which fall within the domain of the executive functions of Government of NCT, Delhi, which would include those subjects in 1, 2 and 18 of List 2 (land, law and order and police) over which the legislative assembly and the state government do not have jurisdiction.”
Noting that it would be difficult to bifurcate or divide the functions of the Chief Secretary, given the numerical strength of the total number of administrative subjects that lie outside and within the purview of the Delhi government, the order stated: “Once it emerges that the Chief Secretary performs important functions, among other things in relation to excluded subjects as well, it would be far-fetched to postulate that the Central Government is divested of the power to appoint the Chief Secretary.”
On the powers of the Centre to extend the tenure of an incumbent chief secretary, the court gave a similar finding and held Delhi Government’s prior approval or recommendation is not required for the same.
Arguing for Delhi Government, senior advocate Abhishek Manu Singhvi submitted that in terms of the All India Service Rules of 1958, extension of a person holding the post of Chief Secretary in a state cannot be granted for a period of more than six months “on the recommendation made by the concerned state government.” The same should be subject to “full justification and in public interest and with the prior approval of the Central Government.”
The state government, he contended, in relation to the NCT of Delhi must mean the Delhi Government and in the absence of latter’s recommendation, which must be backed by a justification and in public interest, no extension can be granted unilaterally by the Centre.
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Position of chief secretary in Delhi ‘significantly distinct’
With regard to the inclusion of a provision on the appointment of a chief secretary in the recently amended NCT Act, Singhvi said the definition under this section cannot be construed to be a substantive provision governing appointment of the chief secretary by the central government. According to him, the Transaction of Business rules under the NCT Act allow the LG to exercise his power on the aid and advice of the state government.
He further submitted that apart from the three expressly excluded entries — police, public and law and order — the chief secretary also deals with 110 entries under the seventh schedule of the Constitution (which defines and distinguishes jurisdictions of the Centre and a state government). Hence, the recommendation of the appointment of a chief secretary must emanate from Delhi government, while the appointment is actually made by the Centre.
In response, the Union ministry of home affairs (MHA) pointed out that the extensions have been granted to chief secretaries in the states of West Bengal, Rajasthan, Uttar Pradesh and Madhya Pradesh in the last one year.
Solicitor General Tushar Mehta defended the Centre’s proposal to extend the current chief secretary’s term and furnished before the court details of 57 such extensions granted to senior bureaucrats and police officers in the past decade. He said the changes brought in the amended NCT Act expressly recognise the power of Centre for the appointment of chief secretary in Delhi.
As far as extension is concerned, Mehta dismissed Delhi government’s reading of the law and said that in the case of NCT, Delhi, officers from the AGMUT cadre (Andaman & Nicobar, Goa, Mizoram and Union Territory) — which is a joint cadre — are deployed. Therefore, recommendation from the joint cadre authority, which is the Union home ministry, would be needed, and not of the Delhi government.
However, the bench appeared to differ with Mehta’s suggestion and said it did not subscribe to the Constitution Bench’s judgment of May 2023, which specifically expressed that the expression “state government” in All India or Joint Cadre service rules in relation to NCT, Delhi, shall mean the Government of NCT, Delhi.
Since the bench was giving a prima facie opinion, it did not delve deeper into the amended NCT Act and its features. It said that the post of a Chief Secretary, Delhi, is entrusted with significant responsibility, including overall administrative control and supervision over subjects that also stand excluded from the legislative domain and executive powers of the Government of Delhi.
This position, it added, is different from the chief secretary of other states. Therefore, the rule that contemplates the state’s recommendation before extension is given to a chief secretary would not be applicable to Delhi where the position of a chief secretary is “significantly distinct” with regard to the functions performed by him.
In other states, a chief secretary performs functions in relations to the state, unlike Delhi where these functions straddle between both subjects, which fall within the legislative and executive competence of Government of NCT as well as those that lie outside.
The rule requiring recommendation of the state for extension of an officer’s service would, however, be applicable to other officers, except those employed in the three excluded subjects.
Therefore, the bench concluded that extension of services of the incumbent Chief Secretary in Delhi “cannot be construed to be violative of the law of the constitutional dissolution of powers between the Union and the government of NCT, Delhi”.
(Edited by Zinnia Ray Chaudhuri)
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