New Delhi: While upholding the termination of a former Officer on Special Duty (OSD) to the Speaker of the Delhi Legislative Assembly, the Delhi High Court said that the assembly has no separate secretarial cadre, therefore the Speaker cannot create a post or make appointments to a post in the secretariat.
Dismissing the petition filed by former OSD Siddharth Rao, Justice Chandra Dhari Singh also remarked that the “services under the NCT (National Capital Territory) of Delhi are necessarily the services of the Union”.
The distribution of powers in Delhi has been a bone of contention between the Centre and the Delhi government for years. Since Delhi is the national capital, the Centre has retained rights over certain matters, such as public order. The judiciary has managed to put certain jurisdictional matters to rest over the past few years, but the issue of who has control over civil services in the national capital is still pending in Supreme Court.
Does the Delhi High Court’s judgment — delivered on 23 December — settle this debate now? What does the judgment say, and how is it different from the matter pending before the Supreme Court? ThePrint explains.
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‘Appointment illegal’
Siddharth Rao was appointed as an OSD to the Speaker, on deputation, in January 1999. He was then absorbed to the post of joint secretary in the assembly, and then in December 2002, he was given the charge of secretary, with all upgradation in pay scales. He was, however, terminated by the Lt Governor (L-G) from services in December 2013. Rao then challenged his termination in the high court.
The high court (HC), in its 23 December judgment, however termed his appointment “illegal” as it was made without the L-G’s consent and approval.
“Nowhere the approval was taken from competent authority for such deputation as OSD, absorption to Joint Secretary and promotion to Secretary, the appointment was vitiated by fraud and is void ab initio (from the beginning),” the HC further said.
The court also pointed out the post of OSD to Speaker was a “non-existent” one which was never sanctioned or created in the Delhi assembly. Most of the posts in the Delhi assembly secretariat have been sanctioned and created by the home ministry.
Delhi govt vs L-G tussle
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 special character as a Union territory with a legislative assembly that has 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 Delhi 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, he/she 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.
The Seventh Schedule of the Constitution 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”.
There is no Public Service Commission in Delhi. Since it is a UT, the manpower/public servants assigned to Delhi are either those who belong to the All India Services like IAS, IPS etc. or those who are recruited for all UTs. According to the Supreme Court, these officers/public servants do not belong to the Union Territory of Delhi exclusively or, for that matter, at all.
What did the HC say
The court began with looking into the history of Delhi legislature, Article 239AA and Article 239. It then looked at the constitutional provisions to explain that there are only two kinds of public services — Union services and State services. It asserted that the NCT does not have its own state public services — which is a settled law.
The court explained that the matters connected with “services” — as applicable to the position of secretary of the Delhi Legislative Assembly — relate to Entry 41 of List II of the Constitution, and fall outside the purview of the legislative assembly of NCT of Delhi.
The court asserted that since the post of OSD to the Speaker was a “non-existent post”, the appointment cannot be considered to be an appointment to the service.
As for Rao’s absorption as joint secretary and promotion as secretary — both of which are classified as Group ‘A’ posts under the Central Civil Services (Classification, Control and Appeal) Rules, 1965 — the court said the L-G is the appointing authority for all appointments to Group ‘A’ posts in Delhi.
How is OSD case different from matter before SC
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 this year. The matter is set to come up in January 2023.
However, the position on legislative control over services is settled. Both judges in the division bench had agreed that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi assembly. This means that Delhi’s legislative power does not extend to that Entry, or in other words, Delhi government cannot make laws around this subject. Also, both the central and Delhi governments agreed before the Supreme Court that the former could determine which officers are to be posted in Delhi.
However, they differed on whether the government of NCT of Delhi can exercise executive power over these “services”, or post such officials at different places or assign them to particular departments once they are allocated to Delhi.
The issue, therefore, is whether such posting orders are to be passed by the President or the L-G, or it is the Government of NCT that is competent to exercise such a power once the manpower is assigned to it.
As against this, the high court’s remarks in the recent judgment are confined to creation of such a post by the Speaker and his absorption to Group ‘A’ posts. Therefore, the high court judgment does not touch upon this question at all.
On 5 December, a Supreme Court bench headed by Chief Justice of India D Y Chandrachud fixed 10 January for commencement of arguments on the question of control over “services” in Delhi.
(Edited by Geethalakshmi Ramanathan)
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