The Delhi government on Friday urged the Supreme Court to quash an ordinance which slips control over civil servants back into the hands of the Lieutenant Governor (L-G) while reducing the Chief Minister into a “minority voice” in the capital’s administration.
The Arvind Kejriwal-led Aam Aadmi Party government said the National Capital Territory of Delhi (Amendment) Ordinance, 2023 was promulgated within just eight days of the Supreme Court’s May 11 verdict in favour of the authority of Delhi government to make laws and administer civil services in the national capital.
The May 11 judgment of a Constitution Bench led by Chief Justice of India D.Y. Chandrachud had limited the role of the L-G, an arm of the Centre, over bureaucrats in the capital to three specific areas — public order, police and land.
“The ordinance has now wrested control over civil servants serving in Delhi from the Government of NCT of Delhi to the unelected Lieutenant Governor… It has done so without seeking to amend the Constitution, in particular Article 239AA, which holds that the power and control over services should be vested in the elected government,” the Delhi government, represented by advocate Shadan Farasat, submitted.
The government said the ordinance upends the Constitution Bench judgment without “altering its basis”, that is, explaining why the court’s decision to give the authority over services to the elected government was wrong in law.
The petition challenges provisions in the ordinance which mandates the formation of a “permanent” National Capital Civil Service Authority (NCCSA) with the Chief Minister, as chairperson, and the Chief Secretary and Principal Home Secretary as Member and Member-Secretary, respectively.
‘Contempt for Assembly’
“The Authority [NCCSA] is designed in such a way that the head of the elected government, the Chief Minister of Delhi, presides over his own minority. The two bureaucrats can outvote him, hold meetings, make recommendations in his absence… the ordinance shows contempt for the elected Assembly and government while making a pretence of their involvement through the Chief Minister,” the petition contended.
The NCCSA exercises authority over civil service officers working in all Delhi government departments except those in public order, police and land. The NCCSA would decide transfers, postings, prosecution sanctions, disciplinary proceedings, vigilance issues, etc, of civil service officers deputed to Delhi government departments by majority of votes of the members present and voting. The Lieutenant Governor’s decision, in case of a difference of opinion, would be final.
The government said that by giving the L-G a final say, the dual scheme of governance envisioned in Article 239AA has suffered a collapse.
Under the Article, the L-G enjoys a discretion only in matters following outside the Delhi government’s legislative and executive domain. In all other issues, the L-G is bound by the aid and advice of the Council of Ministers.
Dual arrangement
The May 11 judgment had said the dual arrangement was essential to preserve Delhi’s federal system of governance.
“A mere personal disagreement about the legality of particular decisions within the Delhi government’s domain cannot confer independent executive power in either the bureaucrats or the L-G… The ordinance, by doing exactly this, attempts to elevate the L-G, and through his office, the Union of India, to the status of a court or a judicial tribunal,” the petition argued.
The May 11 judgment had intended to strike a balance between the national interests of the Centre in the capital and the authority of an elected Delhi government to legislate and administer meaningfully through “professional” civil service officers deputed to its departments.
The ordinance has turned the pages back to when the Home Ministry had issued its May 21, 2015 notification, which had endowed the L-G with power over the services. The 2015 notification, which was set aside on May 11, had required the L-G to consult the Chief Minister only at his “discretion”. It had excluded Entry 41 (services) of the State List from the scope of powers of the Delhi government.
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