Constitution Bench to hear battle between Centre and Delhi Government for control over bureaucrats

2018 judgment by another Constitution Bench had not specifically dealt with the issue of ‘services’

August 22, 2022 03:32 pm | Updated 04:26 pm IST - New Delhi

Chief Justice N. V. Ramana said he has set up a five-judge Constitution Bench to hear the legal issue concerning the scope of legislative and executive powers of the Centre and NCT government over control of services in Delhi. File

Chief Justice N. V. Ramana said he has set up a five-judge Constitution Bench to hear the legal issue concerning the scope of legislative and executive powers of the Centre and NCT government over control of services in Delhi. File | Photo Credit: V. Raju

A Constitution Bench led by Justice D.Y. Chandrachud will hear the legal battle between the Centre and the Arvind Kejriwal-led Government of Delhi for control over bureaucrats in the national capital.

On Monday, Chief Justice of India N.V. Ramana said the case would come up before a Constitution Bench led by Justice Chandrachud.

In May, a three-judge Bench led by Chief Justice Ramana had, in a judgment, referred to a Constitution Bench the limited question concerning ‘services’ or bureaucracy for an authoritative pronouncement.

Also Read | Explained: The administrative services row between the Delhi and Central governments

Four years ago, another Constitution Bench had unanimously held that the Lieutenant-Governor of Delhi was bound by the “aid and advice” of the popularly-elected Aam Aadmi Party (AAP) 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 2018 judgment had made it clear that the powers of the Centre and the Delhi Government were collective and coextensive, senior advocate A.M. Singhvi, for the Delhi Government, had submitted.

“What collective responsibility will the Delhi Government have without the power to control the transfers and postings of the officers? Federalism is itself being eroded,” the senior lawyer had argued.

Solicitor General Tushar Mehta, for the Centre, had argued in favour of referring the issue to a Constitution Bench.

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 Supreme Court Bench of Justices A.K. Sikri and Ashok Bhushan (both have since retired) had given a split opinion on the question of control over ‘services’ in the capital.

While Justice Bhushan had held that the Delhi Government had no power over ‘services’, Justice Sikri, who was the lead judge on the Bench, had opined that files on transfers and postings of officers in the rank of Secretary, Head of Department, and Joint Secretary, could be directly submitted to the Lieutenant-Governor.

As far as DANICS (Delhi Andamans Nicobar Islands Civil Service) cadre was concerned, the files could be processed through the Council of Ministers led by the Chief Minister to the Lieutenant-Governor, Justice Sikri had written.

The Delhi Government has separately sought the quashing of amendments to the ‘Government of National Capital Territory of Delhi (GNCTD) Act’ and 13 Rules of the ‘Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993’.

It has contended that the amendments violate the doctrine of basic structure of the Constitution and that the Centre, through these changes, has given more power to the Lieutenant-Governor than the elected government of the people of Delhi.

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