Delhi Legislative Assembly Has No Separate Secretarial Cadre, Speaker Can't Make Appointments To Secretariat: High Court

The Delhi High Court has observed that the Delhi Legislative Assembly has no separate secretarial cadre and thus, the Speaker or any authority under it has no competence to make appointments to the house secretariat.

Justice Chandra Dhari Singh said that Article 187 of Constitution of India applies to the States for having separate secretarial staff and cannot be made applicable to Delhi which is a Union Territory.

"The Article 187, thus, has no applicability to the Legislative Assembly of NCT of Delhi. The posts can be created in Legislative Assembly of NCT of Delhi with the approval of Lt. Governor, Delhi, who is the Competent Authority by virtue of delegation of powers in this regard under Article 309 of the Constitution," the court said.

Observing further that Delhi does not have its own State Public Services, the court said that the matters connected with "Services" are relatable to Entry 41 of List-II of the Constitution and thus, fall outside the purview of the Delhi Legislative Assembly.

The court also said that the services under Delhi are services of the Union and are expressly covered only by Entry 70 of List I.

"The Legislative Assembly of NCT of Delhi has no legislative competence to legislate in respect of any subjects covered under Entries 1, 2 and 18 of State List and Entry 70 of the Union List. In view of Section 41 of the Government of National Capital Territory of Delhi Act, 1991, the Lt. Governor is required to act in his discretion in respect of these matters and not on the aid and advice of the Council of Ministers," the court said.

Justice Singh also said that until a provision is made by the legislature, the Lieutenant Governor, after consultation with the Speaker of the Legislative Assembly, may make rules regarding the recruitment and conditions of service of persons appointed to the secretarial staff.

"Therefore, despite assuming the applicability of the Article 187 to the DLA, the Speaker cannot be said to be vested with powers to make appointments to its Secretariat," the court said.

The court also observed that the Delhi Legislative Assembly has no legislative competence to legislate in respect of any subjects covered under Entries 1, 2 and 18 of State List and Entry 70 of the Union List.

"In view of Section 41 of the Government of National Capital Territory of Delhi Act, 1991, the Lt. Governor is required to act in his discretion in respect of these matters and not on the aid and advice of the Council of Ministers," the court said.

The observations were made while dismissing a plea moved by Siddharth Rao, a former secretary of Delhi Legislative Assembly, challenging two orders terminating him from service and holding all his appointments as illegal and relieving him from the post of secretary.

Rejecting the plea, the court took note of the fact that Rao's deputation was made on a non-existent post of Officer on Special Duty (OSD) to the Speaker and that after completion of the probation period, he was immediately absorbed on the post of Joint Secretary and was given the charge of Secretary with all upgradation in pay scales.

The court observed that since no approval was taken from competent authority for deputation as OSD, absorption to Joint Secretary and promotion to Secretary, the appointment was vitiated by fraud and is void ab initio.

"The entire saga of the series of appointments, absorption and promotion of the petitioner is tainted with irregularities and illegalities, de-hors the rules or due process of law, without approval by the competent authority and is vitiated," the court said.

The court also said that there were documents on record to establish that Rao was granted ample opportunities by way of replying to the show cause notice as well by way of personal hearings, "which he chose to turn a blind eye and a deaf ear to."

"Therefore, the petitioner‟s termination cannot be termed as illegal. Hence, in light of the foregoing discussion and analysis, there are no cogent reasons to entertain the petition and allow the prayers sought therein," the court said.

Title: SIDDHARTH RAO v. GOVERNMENT OF NCT OF DELHI & ORS

Citation: 2022 LiveLaw (Del) 1216

Click Here To Read Order