Govt Of NCT Vs UOI- ‘From 1992, Only 7 Cases of Difference of Opinion; LG Cleared All 18000 Files:SG Tushar Mehta Submits Before Supreme Court


11 Jan 2023 4:19 PM GMT

  • Govt Of NCT Vs UOI- ‘From 1992, Only 7 Cases of Difference of Opinion; LG Cleared All 18000 Files:SG Tushar Mehta Submits Before Supreme Court

    The Supreme Court on Wednesday resumed hearing on the dispute between the Delhi government and the union government regarding control of administrative services in the National Capital Territory of Delhi.The five-judge bench of Chief Justices D. Y. Chandrachud, M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard Senior Advocate Dr. Abhishek Manu Singhvi, for the government of NCT...

    The Supreme Court on Wednesday resumed hearing on the dispute between the Delhi government and the union government regarding control of administrative services in the National Capital Territory of Delhi.

    The five-judge bench of Chief Justices D. Y. Chandrachud, M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard Senior Advocate Dr. Abhishek Manu Singhvi, for the government of NCT of Delhi, and SG Tushar Mehta for the Centre
    SG: "What we are dealing with is a matter of perception and not a matter of constitutional law. The perception which is created not only inside the court but also passed outside, that we have no power because LG is supreme, the LG does everything, we are only symbolic, we can do nothing without the permission or sanction of the LG, the officers owe allegiance elsewhere. Your lordships are dealing with a mechanism, a structure which came into existence in 1992. After 1992, several governments came in the centre and several governments came in the state. There were several occasions where the 2 governments were belonging to different political ideologies. The law, which is in place and which is not told to your lordships, ensures that everything goes on without any friction, unlike the popular perception built that only LG has the power and elected body is meaningless. It is the elected body which is in the driver's seat"
    Justice Chandrachud: "if you say the elected body is in the driving seat, what are the powers which the elected body has?"
    SG: "From 1992 till date, only seven matters are referred (to the President) by the LG registering a difference of opinion (between the LG and the Delhi government)"
    Justice Shah: "You want to say that except the seven which are referred, there is no difference?"
    SG: "No. And after the Constitution bench order in 2018 till date, only 18,000 files came to LG as per law laid down and all files are cleared. Let us see the perception which is being built. How the Delhi government functions as an administrative unit, as a unit of governance- Is it correct that it is the LG who runs the government or is it the elected body as has been happening from 92 onwards?"
    Justice Shah: "Who creates the posts? That was the first question of the chief justice"
    SG: "All posts are created by the central government. But I will demolish all castles in the air. LG is the representative of the President. He is a constitutional functionary, not just an officer. My learned friend tried to compare him with the governor. He is not equivalent to the governor. If your lordships see 239AA(7) (which says that the Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto)- In exercise of this power, the Parliament has made government of national capital territory of Delhi Act. See section 44. This is how constitutionally Delhi as a unit of governance is to be governed. Each and every word under 239AA is chosen with a purpose, built on a historical background"
    SG: "44 says that the president shall make rules for allocation of business to the ministers in so far as it is business in relation to which the LG is required to act on the aid and advice of his council of ministers, and for more convenient transaction of business of the ministers including the procedure to be adopted in case of a difference of opinion between Lieutenant Governor and the council of ministers or a Minister. It further says that save as otherwise provided under this Act, all executive action of the Lieutenant Governor whether taken on the advice of his ministers or otherwise shall be expressed to have been taken in the name of the Lieutenant Governor. In exercise of this power, the President of India has framed Transaction of Business Rules. How the Delhi administration as a unit of governance functions- The powers are with the ministries, the ministers, the council of ministers. This is to satisfy your lordships' conscience that everything is done by LG and ministers are sitting and whiling away time and doing nothing"
    The SG then took the bench through the rules
    SG: "The test is annual confidential reports. For all secretaries that are heading every department, the person who writes the ACR, the reviewing authority, is the hon'ble chief minister. I have the last three years' ACRs of all officers heading departments....They can always approach LG to transfer 1 person from here to there and the LG always does. There is no difficulty....We are the cadre controlling authority, we can departmentally proceed against an officer. But we have not received a single complaint that an officer is not implementing the policy. This is the castle which is built in the air. We are not dealing with the real issue, we are dealing with the perception created. Nothing can be a better proof than saying that only and only seven cases right from 92 till date, where the LG has differed with the decision of the government and referred to the President. But being the capital of the country, the President‘s representative, namely the Lieutenant Governor, who under article 239, 239 AA is entitled to be there as a watchdog which is necessary. Residents of Delhi have not only reposed faith in the government of the GNCTD, ultimately the cadre controlling authority is not some stranger or an alien. They are also people's chosen representatives. The capital belongs to the nation. And the national government kind of keeps its stay by way of a separate constitutional mechanism. You would have truncated powers, LG would have truncated powers, that is how the scheme would function and the scheme has functioned in a very, very harmonious way from 1992"
    SG: "(Under the Transaction of Business Rules), the minister can say that these are my standing orders, that is how my department will function, if there is any breach, he can immediately approach the LG or the cadre controlling authority that Mr X has not followed my orders....Minister of Health can call for any papers from Ministry of Finance or the Ministry of Public Works....The Chief secretary may on the order of the CM, or any other minister, or on his own motion, call for the papers for any proposal and such a requisition will be satisfied by the secretary to the concerned department....The LG, who represents the President, can also call for any papers, he has the power to say I want to see this file. The secretary will inform the concerned minister and then comply with it. Nothing can be done behind the back of the Minister"
    Justice Chandrachud: "Are you suggesting that once an officer has been allocated to the NCT, then the LG, the way of posting...."
    SG: "Posting etc, yes. I will show the provision. There are separate rules, constitutional rules. Rule 45 would satisfy your lordships' conscience- it says that the Lieutenant Governor, may by standing orders in writing, regulate the transaction and disposal of the business relating to his executive functions. He does not decide others', for others, the transaction of business rules decide"
    Justice Chandrachud: "Rule 46 (of the Transaction of Business Rules) is the only rule which deals with persons who are serving in connection with the administration of the NCT. Rule 46 says that the Lieutenant Governor shall exercise such powers and perform such functions as may be entrusted to him under the provisions of rules and orders regulating the conditions of service of such persons, or by any other order of the president in consultation with the chief minister if it is so provided under any order issued by the President issued under article 239. So there are two areas where the Lieutenant Governor can exercise any powers in respect of persons serving in the NCT. So the only entrustment to the Lieutenant Governor in matters governing the service of people serving in the NCT is limited to 46"
    SG: "Yes, 46. I will have to show the statutory rules and the entrustment by the President"
    SG: "Every country has its own sui generis system of governance because every country has a different geopolitical situation. I am asking a fundamental question to myself- why can’t we have only states, why do we have union territories. Because for some strategic reason, some areas are to be directly under the control of the Union of India. Diu and Daman, for example, there is a tremendous Navy presence for strategic defence reasons, it cannot be a state, it has to be under the administration of the Union of India. Delhi is the capital of India. It is the wisdom of the Constitution makers. Andaman and Nicobar Islands. There are some strategic issues where the Constitution felt that it should be directly under the control of the central Government and not state government. Therefore, Delhi is given an additional administrative infrastructure. Except in Puducherry, there is no legislative assembly. Delhi ultimately is an extension of the Union. Union territories in general are essentially an extension of the Union...."
    Earlier in the day, Senior Advocate Abhishek Manu Singhvi, for the GNCTD, had advanced, "All that I am seeking in this case is that civil servants, once they are serving in the UT of Delhi, where to post them, in department X or ministry Y, where and how to transfer him, which work to allocate to him and which work to not allocate to him, reporting to which Minister. I am not seeking disciplinary powers. Whatever their own rules are will govern that- you can go to the President if the rules say so. I am saying you cannot prevent me and should not prevent me, for good governance, for posting to a post, giving the nature of work, and transferring, intra-NCT"
    Dr. Singhvi: "In that, keep in mind the joint cadre- it means that it is an all India cadre but the posting is in a state or a UT and the UT will decide intra-cadre how to allocate....You can allocate to Arunachal, Bihar or Bengal. Once he is available to me is the question now, what happens then. I am not going to say that in the cadre this person cannot go to West Bengal or your lordships cannot have them serving on deputation in the Supreme Court or that he must come to Delhi. That is with the joint cadre controlling authority"
    Justice Chandrachud: "It is a limited point- once you are here, the government must be authority"
    Justice Chandrachud: "The IAS Cadre Rules say All appointments to cadre posts shall be made:- (a) in the case of a stats Cadre, by the state govt.; and
    (b) in the case of a Joint Cadre, by the state government concerned....‘state government concerned’, in relation to a Joint cadre, is defined to mean the Joint Cadre Authority"
    Dr. Singhvi: "today, this country has had single party government for 50 years. you have different party governments in different states. then you again have single party for a while. Tomorrow it may change. Cooperative federalism and all will amount to nothing. You have to live and let live. Apart from federalism, state administration, regional, etc, this would have far reaching ramifications if civil services are not in control....Payment of everything is part of my annual budget, passed in appropriation bill of my assembly. It is unimaginable that the assembly or the government of Delhi that is responsible for raising revenue and making payments to those serving in NCT but the answerability of those is elsewhere! And the implementation of policy is nugatory without control over the officers"
    Dr. Singhvi: "Take an example where your lordships have no power in the NCT to appoint, to transfer. I am NCT. I decided that Covid needs me to appoint hundred staff members in Delhi government 5 hospitals. Either I can’t appoint or I can appoint five or I can appoint seven. I decide this staff is better suited to Safdarjung Hospital or the other hospital that is mine. No. That transfer cannot be done by me. Example 2, I am paying. There is an event happening. Payment of salary is delayed, payment towards rent and salaries, towards running primary health centres may be stopped? No. Primary health Centre is run by NCT. The health centre needs 100 people. There are 80. What about the balance 20? Thirdly, a Water treatment plant- the policy manifesto stated that we will clean this place such as Yamuna, the bureaucrat concerned says 'I cannot meet the minister for it, that I have already written to the LG'. I am not relying on any affidavits, but these are real examples"
    SG: "As per the contemporaneous record, they are incorrect. Don’t say something and then say that you’re not relying on the affidavit. Either you are relying or you are not. And I have an answer to this"
    Dr. Singhvi: "please see the larger picture. Here is a person who is trying to save his burning house. I am not trying to go and attack his house. That is the question of my encroaching upon entries one, two and 18 (of List 2; which come within the centre's domain). If your lordships were to be persuaded by this argument of competence of the NCT, as raised by the government of India, it would amount to that I will be left only with the areas of incompetence. I am left with nothing. If this is the understanding of competence then this elected government is left with incompetent areas only. This is the constitutional gearbox system. You are giving me a gearbox which I can’t change. Either I drive it only here, I can’t speed up, I can’t go to gear 4, all the levers of the gearbox are in somebody else's hand. You tell me that you have given me a gearbox which is fixed at one. Then the car can’t move. The system can’t work. The people of Delhi can't benefit. In your lordships' experience as administrators, you also know that no civil servant will feel that he is answerable in any which way. He is simply not bothered. The practice of the matter is that you are bothered only about the person who can deal with you, Who can transfer you, who can post you. Civil servants are very smart people also. They know That I am not to be bothered unless I am answerable to you. I am asking for a minimalist power that normally nobody should need to ask for. It is implicit in the creation of the NCT, otherwise there would have been no NCT"
    On Tuesday, Justice Chandrachud had put to Dr. Singhvi, "You will have to concede One thing- this was felt in a conversation with brother Justice Shah- that entries 1, 2 and 18 are outside your purview. If the civil servants are posted in relation to 1, 2 and 18, then it will be outside your executive power also"
    Dr. Singhvi had begun on Wednesday by urging, "I am not asserting any right to entries one, two and 18. The issue is a little different and it is being conflated. There are two services that we all accept, all India services and central government or DANIPS or DANICS. All these services are dual services. They are joint cadre services. They cannot operate without the state or union territory on one side and the Central government on the other side. Under that, once the overall board allocates Mr X to UT, that person is based in Delhi, belongs to Danics or danips and his transfer, control, dealing with him, all comes under the existing system"
    Justice Chandrachud: "Once allocated to a state or union territory, all incidents of the service fall under state or union territory? That would be discernible from that legislation under which that service is created. Then we need to look at the rules under which the service is created. Admittedly, the service is created by central legislation and rules created by the government of India. We will have to look at the IAS rules, IPS rules, and the rules which govern Danips and Danics....In the case of a state, once a person has been allocated to a cadre, that state government decides on transfer, posting etc. Will the same principle apply to a union territory like Delhi, is the question"
    Dr. Singhvi had discussed the Westminster model on the concepts of collective responsibility and 'aid and advise'
    Dr. Singhvi: "Please see 239AA (6) and (4). They directly ask you to go back to the concepts of collective responsibility and aid and advise. The Council of ministers shall be collectively responsible to the legislative assembly. Now if you look at (4), There shall be a council of ministers, this is a typical Westminster model, consisting of not more than 10% of the total number of members of the assembly with the chief minister at the head to aid and advise the LG in exercise of his functions except when he is required to act in his discretion. The implication of this collective responsibility qua government in Delhi- Collective responsibility in the larger sense is that the civil servant is responsible to the Minister, Minister accountable to the legislature, the legislature accountable to the people"
    Justice Chandrachud: "Now the question that we really have to confront is control over the public services, does it exclusively lie in one, does it exclusively lie in the other or is there a median. The concern is that there should be a representative government and that should warrant that control over civil services would vest exclusively with the council of ministers once the officers have been handed over to them because it is only through controlling your officers located in the union territory that you can implement legislations according to you. Otherwise you will have no accountability to the legislature and the people. We also need to ask at what point of time does the control over the public servant go into the issue of national governance"
    Dr. Singhvi: "Delhi is in the dual role of national capital. Delicate balance is struck by excluding three areas, by giving something by way of reference in case of disagreement, and by giving a further power of acting in discretion which is there in some governors"
    Justice Chandrachud: "one way to harmonise would be to say that control over public services in so far as it relates to 3 excluded subjects, that will not vest with the Delhi government"
    SG: "that is also not their case that they should get it"
    Dr. Singhvi: "once any civil servants is allocated to a state, and for the present purpose your lordships must deem state to be equal to UT, the power of appointing, transferring, appointing to post X or Y, disciplining, terms of service, acting have to be with that UT"


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