The Delhi government on Friday, November 11, 2022, mentioned an affidavit filed by its Deputy Chief Minister Manish Sisodia saying there is a “paralysis” in the implementation of policy and projects in the capital caused by the non-cooperation of bureaucrats.
Appearing before a Bench led by Chief Justice of India D.Y. Chandrachud, senior advocate A.M. Singhvi said the government merely wanted to bring the “ground situation” to the court’s attention. Mr. Singhvi said the government was not insisting on a response from the Centre to its affidavit.
Objecting to the affidavit, the Centre said the dispute between the Delhi government and the Centre over control over ‘civil services’ was already pending before a Constitution Bench led by Chief Justice Chandrachud and was listed for hearing on November 24.
“The affidavit says they want a reply from us within a week. They cannot dictate like this...This is a complete abuse of process. They have filed the affidavit when the case is listed before the Constitution Bench on November 24… this is engaging in a political slugfest,” Additional Solicitor General Sanjay Jain, for the Centre, protested.
Constitutional issue
Chief Justice Chandrachud said the issue before the Constitution Bench concerned civil services or the bureaucracy in Delhi. The court said it would focus on the constitutional issue involved in the case.
The CJI said there would be a freeze on the pleadings or everyone would start filing affidavits a day before the hearing.
“Officials have stopped taking calls from Ministers. Officials are disobeying orders/ directions of Ministers including orders/ directions that are in writing,” the Delhi government affidavit has said.
The government had alleged that the non-cooperation became acute with the appointment of Lieutenant Governor of Delhi Vinai Kumar Saxena. The affidavit said this alleged state of affairs was a direct fall-out of a notification issued by the Centre on May 21, 2021 due to which the civil servants were answerable to the Centre.
“The power to assign posts, effect transfers within the Government of NCT of Delhi, and discipline civil servants is exercised by the Central government/ Lieutenant Governor. Given this regime introduced by the impugned notification, it is not surprising that civil servants serving in Government of NCT of Delhi have become indifferent to the elected government,” the affidavit said.
In May, a three-judge Bench had, in a judgment, referred to the Constitution Bench the limited question concerning ‘services’ or bureaucracy for an authoritative pronouncement.
Four years ago, in 2018, another Constitution Bench had unanimously held that the Lieutenant Governor was bound by the “aid and advice” of the popularly-elected Aam Aadmi Party government and both had to work harmoniously with each other. It had noted that there was no room for anarchy or absolutism in a democracy.
However, the 2018 judgment had not specifically dealt with the issue of ‘services’.
The National Capital Territory government had compared its predicament without power over the ‘services’ like that of a king without a kingdom. The situation was such that a “democratic representative government” had to get the approval of the Lieutenant Governor to appoint a Health Secretary or a Commerce Secretary, it had argued.
The Centre had argued that Delhi, the nation’s capital and a sprawling metropolis, should be under its control. Delhi could not be left to the “small mercies and smaller resources” of a State legislature, the Centre reasoned.
On February 14, 2019, a two-judge Bench of the court had given a split opinion on the question of control over ‘services’ in the capital.
