A Supreme Court Bench of Justices A.K. Sikri and Ashok Bhushan on Thursday gave a split opinion on whether the Delhi government has control over the administration’s services and decided to refer the question to a larger Bench.
While Justice Bhushan held that the Delhi government has no power over services, observing that Entry 41 of the State List in the Seventh Schedule of the Constitution — dealing with ‘State Public Services’ — was outside the purview of the Delhi Legislative Assembly, Justice Sikri, the lead judge on the Bench, took the middle path.
Files on transfer
Ruling that files on the transfers and postings of officers in the rank of secretary, head of department and joint secretary could be directly submitted to the Lieutenant Governor (LG), Justice Sikri said that as far as the DANICS (Delhi, Andaman & Nicobar Islands Civil Service) cadre is concerned, the files could be processed through the Council of Ministers led by the Chief Minister before being sent to the LG. Observing that in case of a difference of opinion, the LG prevails, Justice Sikri said there was a need to evolve a “just and fair mechanism”. The situation in Delhi is “peculiar”, he said.
Justice Sikri also proposed the setting up of Civil Service Boards to take care of service matters in case of grade one, two, three and four officers. The Boards regarding grade four and three officers could be led by the Services Secretary and the other by the Chief Secretary.
However, one would have to wait for a final decision on this issue, the judge observed.
Thursday’s judgment on individual appeals followed a verdict by the Constitution Bench on July 4, 2018, wherein the apex court held that the LG was bound by the aid and advice of the Council of Ministers of the National Capital Territory (NCT) government.
Interestingly, other than the question of services, the two judges agreed on all the other questions raised in separate appeals.
The court upheld as “legal” the Ministry of Home Affairs’ notifications of May 21, 2015, and July 23, 2015, authorising the LG to exercise powers in relation to services and directing the Anti-Corruption Branch (ACB) police not to take cognisance of offences against Central government officials. The court said the notifications were limited to the officials of the Central Government under the Prevention of Corruption Act and were “perfectly in order”. Thus, the apex court confirmed the Delhi High Court’s finding that the ACB’s jurisdiction is confined to Delhi officials and statutory bodies and does not extend to Central government officials.
The Supreme Court also confirmed the Delhi HC’s finding that the “appropriate government” under the Commission of Inquiry Act of 1952 is the Centre and not the Delhi government.
The court was unanimous in its decision that the Delhi government should have taken the views of the LG before issuing the circular dated August 4, 2015, revising minimum rates of agricultural land (circle rules) under the provisions of Indian Stamp Act, 1899, and the Delhi Stamp (Prevention of Undervaluation of Instrument) Rules.
“The decision cannot be implemented without referring the same to the LG in the first instance. More pertinently, the decision here touches upon the governance of the Union Territory,” the apex court held.
The judges also concluded that the Delhi government was clothed with the power to issue directions under the Delhi Electricity Reforms Act in “policies of public interest”.
The Bench endorsed the conclusions of the Constitution Bench that the Delhi government had exclusive executive powers, except under Entries one (public order), two (police) and 18 (land) of the State List. By raising this issue again, the Centre was only trying to “re-argue” the case, the court remarked.
The court clarified that while the LG was free to form an opinion on any matter, ‘any’ did not mean in every “trifling matter”.
LG should not intervene routinely but only in matters fundamental to Delhi, which in turn could be escalated till the office of the President. The court also said that the LG should not hold on to files, but instead honour the wisdom of the Cabinet.
In its July 2018 judgment, the Constitution Bench had urged the LG and the Arvind Kejriwal government to show mature statesmanship in their mutual relationship while coining the expression “collaborative federalism” to define the inter-dependence between the two.
