'Taking Away Delhi Govt's Power Over Civil Servants Negates Federalism' : Singhvi Argues For GNCTD Before Supreme Court

The Supreme Court on Tuesday started hearing the case involving the dispute between the Delhi Government and the Central Government regarding the power of postings and transfers over civil servants belonging to All India Services serving the Government of National Capital Territory of Delhi. A Bench comprising the Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli heard the arguments made by Senior Advocate Dr.Abhishek Manu Singhvi appearing for the Delhi Government.It may be recalled that in February 2019, a two-judge bench of the Supreme Court had delivered a split verdict on the question of powers of the GNCTD and Union Government over services and referred the matter to a 3-judge bench.The split verdict was delivered by a bench of Justices A K Sikri and Ashok Bhushan(both retired) on the issue of who has powers to appoint and transfer officers of State Public Services under Entry 41, List II of the Constitution of India. Entry 41 deals with State public services and State Public Service Commission.Justice Sikri held that transfers and posting of officers of and above the rank of Joint Secretary are under the powers of Lieutenant General of Delhi; other officers are under the control of Delhi Govt. On this aspect, Justice Bhushan dissented to hold that "services" were totally outside the purview of the Delhi Government. Impugned Notification Has Come After Decades Of Delhi Government Passing Service Laws & Notifications.Singhvi submitted that the impugned notification of the Centre restricting the Delhi Government's powers over services has come after decades of the Government of NCT passing laws and notifications for purpose of services. He submitted that upto date of impugned notification in 2015, Delhi has passed innumerable service regulations like the Delhi Fire Services Act 2007."Nobody had idea to issue notification like the one now issued. NCT is the only Union Territory in the country which has a Constitutionally made legislature, with full state powers minus three entries (1,2 and 18 - public order, police and land respectively). Nobody has disputed the Delhi's powers to appoint and post its officers for years", he submitted.The impugned notification amounts to cutting down the powers of a democratically elected Chief Minister by making him subordinate to a unelected L-G. If an elected government cannot exercise power of control over civil servants, it will drastically affect governance. Article 239 AA of the Constitution, the Bedrock of NCTD:Referring to the Article 239 AA and the three exceptions with respect to entries 1,2 and 18, Mr Singhvi submitted that the three powers of police, public order and land were always with the Lt Governor, however the impugned notification has for the first time added services as well.He submitted: The notification has come 23 years after the Government of National Capital Territory of Delhi was Constitutionally created.It adds a fourth head, which is Constitutionally not ordained.The manner of putting it(services) with the other three entries is as if it has been always with Lt Governor or Central Government He referred to sub-clauses 3(a), 4 and 6 of Article 239AA to argue that the Constitution has given GNCTD full powers over the state list and on concurrent list, except the entries relating to public order, police and land and except to the extent of repugnancy with Central Laws.Article 239AA speaks of a Council of Ministers (clause 4) and collective responsibility (clause 6), which means that the GNCTD is not like a Union Territory, and has all powers of an elected State Government, except the specifically excluded three matters.Taking away the power over services affect the principle of collective responsibilityMr Singhvi submitted that according to the Constitution Bench judgement(2018), in all matters other than the three exceptions, the Lieutenant Governor is bound by the aid and advice of Council of Ministers; but if something is of extraordinary importance, the LG may act in his discretion however only in the rarest of rare cases.Further, the Council of Ministers shall be collectively responsible to the legislative assembly, which is a principle of Parliamentary democracy. However, the LG is not accountable to the assembly, and hence taking away the power over services from the Council of Minister's affect the principle of collective responsibility.Taking Away Delhi's Power Of Posting & Transfer Is Negating Federalism:While arguing that federalism is important to this case, Singhvi submitted that by taking away power of posting and transfer, the Centre is negating federalism"The joke now is a Cabinet Minister and the State Chief minister are at same rank. This is despite that the State Chief minister is 5 times more powerful than cabinet ministers", he said."We are not in ivory towers. Look at the practicality. What control the Government have over an officer if it has no power to even transfer? There is a...

'Taking Away Delhi Govt's Power Over Civil Servants Negates Federalism' : Singhvi Argues For GNCTD Before Supreme Court

Srishti Ojha

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