Bizarre That Elected Govt Of Delhi Can't Appoint & Transfer Officers Without LG's Approval: Sr Adv AM Singhvi Before Supreme Court

While considering a request for an urgent hearing of the matter, the Supreme Court on Thursday agreed to hear on April 6th the legal dispute between the Delhi Government and the Central Government regarding control over administrative services in the national capital.

A Bench comprising CJI NV Ramana, Justice AS Bopanna and Justice Hima Kohli issued the direction after considering submissions made by Senior Advocate AM Singhvi appearing on behalf of the Delhi Government.

During the hearing today, Senior Advocate AM Singhvi appearing for the Delhi Government argued in favour of urgent hearing of the matter.

He argued that it's 'bizarre' that the Government in the National Capital Territory despite being a democratic and representative form of government, needs the Governor's approval before even appointing a Secretary to its Departments.

"The petition requires to be heard urgently, because something as bizarre as this, the NCT is democratic representative form of government, if I have to appoint health secretary in Department X, or commerce secretary in Department Y , I cant do it under entry 41, the Governor's approval is required. This court's in Constitution bench said barring 3 entries powers are plenary," Mr Singhvi said

Mr Singhvi argued that the present situation where the Delhi Government cannot even appoint and transfer officers, has a 'deleterious effect'.

"It is having very deleterious effect. I am a Government but for what purpose? There's no Government if I can't appoint and transfer Officers. And if Officers know I can't appoint and transfer officers, the discipline in governance is zero. That should be put down as soon as possible before a three-judge Bench."

ASG Sanjay Jain appearing for the Union of India however submitted that the matter needs to be referred to the Constitution bench and sought some time from the Bench to argue in favour of the same.

"One very important aspect of Article 239 AA which was part of original case, the Constitution bench was required to examine all aspects but it hasn't examined one aspect. The matter needs to be referred to Constitution Bench. Whichever day you decide please give me 30 minutes," ASG said

The Bench however wasn't convinced with the ASG's submissions, and decided that a Bench of three judges will proceed with the matter.

"We don't think its required. I think three of us can resolve the case. If you can show us there has to be more then okay. We are not deciding it now. Three judges will hear it now," CJI Ramana said

"All these are attempts to delay," Mr Singhvi remarked.

The Bench will now hear the matter on 6th April 2022. The Court also issued notice on another writ petition filed by the Delhi Government challenging the Government of National Capital Territory of Delhi (Amendment) Act 2021, which increased the powers of the LG.

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.

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.

In July 2018, a 5-judge bench of the Supreme Court had laid down broad parameters for governance of the national capital, which has witnessed a power struggle between the Centre and the Delhi government since the Aam Aadmi Party came to power in 2014.

In the landmark verdict, it had unanimously held that Delhi cannot be accorded the status of a state but clipped the powers of the Lieutenant Governor (LG), saying he has no "independent decision making power" and has to act on the aid and advice of the elected government.

Last year, the Delhi Government had filed a writ petition before the Supreme Court challenging the recently passed GNCTD(Amendment) Act 2021, which gives enhanced powers to the Lieutenant-General over the elected government.

Case Title: Govt Of NCT Delhi vs Union of India: CA 2357/2017