‘What Is The Purpose Of Elected Govt. If The Administration Is To Be Carried Out Only At The Beck And Call of The Central Govt.?’: SC Asks SG in Govt Of NCT Vs UOI


12 Jan 2023 4:02 PM GMT

  • ‘What Is The Purpose Of Elected Govt. If The Administration Is To Be Carried Out Only At The Beck And Call of The Central Govt.?’: SC Asks SG in Govt Of NCT Vs UOI

    The Supreme Court on Thursday 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 Justice D. Y. Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard SG Tushar Mehta for the Centre.SG: "Your lordships'...

    The Supreme Court on Thursday 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 Justice D. Y. Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard SG Tushar Mehta for the Centre.
    SG: "Your lordships' question was who appoints and posts all the officers in the GNCTD. My answer would be, and I would substantiate at the end, entry 17 list 1- Union Public services, all India services, union Public service commission. Your lordships would be answering the question if the term 'services' would be hit by the phrase 'in so far as any such matter is applicable to Union territories' (in Article 239AA(3)(a)). Your lordships are deciding the question with regard to the national capital and it will have far-reaching consequences for the nation. So slightly, your lordships may require the historical background as to how Delhi was conceptualised and eventually constitutionally provided for in a different governmental format. Delhi was a chief commissioner's province, not a federated state. When your lordships would examine constitutional provisions, particularly with respect to services, you would find there are several amendments made through Constitutional Seventh Amendment Act. They have made provisions by way of amending service provision but there is a conscious decision to keep the union territories separate. For the first time, the concept of union territory comes under the seventh amendment and other amendments under the seventh amendment. But union territory is given a separate treatment and not the treatment which is given to other federated states"
    SG: "The Provision of services is in part 14 of the constitution. Part 14 came to be amended by the seventh amendment. It says that In this part, unless the context otherwise requires, the expression 'state' means state as in part A or part B of the first schedule. Before the seventh constitutional amendment also, the expression 'state' meant a state specified in part A and part B of the first schedule. So even before, for part C states, the centrally-administered states (where the NCT falls), there were no separate services contemplated. When the Constitution was being amended under the seventh amendment and the concept of union territories was being introduced, if the framers of the Constitution, by the Parliament, wanted to have a separate union territory service, they would have done so because this is amended simultaneously- seventh amendment introduces union territory and also amends Article 308. 308 says unless the context otherwise requires, the expression 'state' does not include the state of Jammu and Kashmir. Meaning thereby that the very amendment which introduces union territories does not introduce the term union territory in the chapter which is under the heading of services under the union and the states. There is no contemplation of separate services for union territories. A conscious omission, a conscious legislative call that there would be union services and services of the state but not services for union territories"
    SG: "Bureaucracy is not related to any party, any government, it is related to the Constitution of India. If the National capital is under siege and the arterial Road connecting to the capital is blocked with permanent structure and if the government of Delhi sends food, it is the responsibility of the bureaucrat to communicate to the LG that this is the capital and the capital cannot be under siege. If during the Covid period, the number of tests are brought down with a view to ensure that the figure is low, because it would affect the future course of action, the health secretary would have to bring it to the notice of the LG. I am not saying the bureaucracy should be loyal to the central government but the central government must have a say as to who will be appointed and who will head which department. They are bound by the transaction of business rules, reporting to the minister, taking orders from the minister, bound by the instructions of the minister, if any difference is there, it goes to the council of ministers, Council of ministers is supreme, collective responsibility, democratic functioning. But to say that once the officer comes under my jurisdiction, it is my decision as to what he deals with, that goes against the very spirit with which 239 AA is introduced. The test in my submission would be a subject matter wise selection of implied exclusion. The phrase is 'applicable to UTs'- plural. Whether Andaman and Nicobar can do it, whether diu and daman can do it, whether Lakshadweep can do it- that would be the test. Like your lordships said that for Delhi both state list and concurrent list are concurrent list, meaning thereby the Parliament can make a law even from the state list which is not permissible in case of Federating states. Legislative power under 239AA(3)(a) is subject to (3)(b) because (b) is also part of the Constitution and the Article starts with 'Subject to the provisions of this Constitution'. And legislative power is coextensive with the executive power...."
    Justice Chandrachud: "For GNCTD, parliament can legislate on state list and concurrent list. Legislative assembly of Delhi cannot legislate on entries 1, 2 and 18 of List II, and 64, 65, 66 in so far as they relate to 1, 2 and 18 in so far as those entries are applicable to union territories. The third aspect, according to you, is that 'in so far as' is a limiting feature which has been noted by the majority in the GNCTD case (2018). No doubt about the fact that the Parliament has the power to legislate entirely in respect of the state list and the concurrent list. No dispute about the fact that the Delhi legislative assembly has no legislative jurisdiction over entries 1, 2, 18, 64, 65, 66. And third, even in respect of other entries in the state list and concurrent list other than 1, 2 and 18, the Delhi legislative assembly has the authority to legislate only in so far as those entries are applicable to union territories. The moot question is does the entry of services relate to the union territories, Are they applicable to union territories. Your argument is that the Delhi legislative assembly will not have legislative jurisdiction over services merely because entry 41 (of List II) uses the expression 'state' because you have been trying to bring it within the folds of my judgment (in the GNCTD case; 2018). I also say that merely because 'state' includes 'union territories' in 358, it does not mean every item in the state or concurrent list where 'state' is used includes 'union territories' because then the word 'insofar as' will cease to have meaning. So, according to you, if you look at part 14 of the Constitution which was amended by the seventh amendment to the Constitution, consciously a departure was made by amending the Constitution not to bring in union territories in part 14 of the Constitution. Now what you really need to focus on is how do you tell us that services were never intended to be for union territories, that the legislative control over services was never intended to be part of the legislative powers of the Delhi legislative assembly. Focus on that. Two, even if we concede to your argument that legislative authority over services is vested exclusively in Parliament, what about the executive power of the GNCTD?"
    SG: "It is always coterminous"
    Justice Chandrachud: "No. Even if Parliament has legislative control over certain areas, the executive control over those areas is still vested then with the states"
    SG: "In the case of union territory, that would mean the LG, I will show"
    Justice Chandrachud: "Just see 162 of the Constitution. See the proviso to 162"
    Justice Chandrachud indicated that Article 162 says that subject to the provisions of the Constitution, the executive power of a state shall extend to the matters with respect to which the Legislature of the state has power to make laws. The judge indicated the Proviso appended to the Article which says that Provided that in any matter with respect to which the Legislature of a state and Parliament have power to make laws, the executive power of the state shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
    Justice Shah: "You have to point out so far as the other union territories are concerned, the executive functions which are being carried out"
    Justice Chandrachud: "Suppose some subject is exclusively entrusted to the parliament in list one, does the state exercise executive power in respect of that subject?"
    SG: "If the Parliamentary law delegates to it. For example, Some transfer of property act, citizenship act. It is a central law in list one. But it will be enforced by the collector of the district which is under the state"
    Justice Chandrachud: "In the case of a union territory like Delhi?"
    SG: "LG is the authority under the GNCTD Act scheme"
    Justice Chandrachud: "How do you interpret the phrase 'in so far as'? What is the test that we should apply?"
    SG: "Your lordships would test if a particular subject, that particular matter, not the entry, can ever be within the domain of the union territory or not, as opposed to federating states. Union territories are an extension of the union government by definition and even constitutionally. The very purpose of creating a graphical area as the union territory by itself suggests that the union itself wants to administer the territory, meaning thereby through its own offices. So all union territories are administered by Central civil services officers and all central government officers"
    Justice Chandrachud: "Then what is the purpose of having an elected government in Delhi at all if the administration is to be carried out only at the beck and call of the central government?"
    SG: "Let me distinguish two things, then everything will fall into place- The functions of the officers, and the administrative or disciplinary control of the officers. When a central services officer or danics officer or IAS officer is posted at Dadra and Nagar Haveli as a commissioner under the obligation of issuing licences, then he will be guided by the policies of the state government, he will be governed by the transaction of business rules, he will be answerable to Minister, Minister will formulate policy of how to give licence and how not to give licence, what are the parameters to be considered, how the ministry will run, the functional control will be of the elected Minister. We are concerned with administrative control, who posts, who appoints, who departmentally proceeds, who transfers. But that officer cannot ask the Home Secretary whether I should give licence or not, for that he will have to report to the ministers. There are two different things- functional control is obviously with the minister concerned"
    Justice Chandrachud: "Suppose the officer is not properly discharging functions. See how anomalous this will be. If the officer is not discharging his functional role properly, the Delhi government will have no role to say we will send this person and get somebody else. Where will they be? Can we say they will have no jurisdiction over authority in respect of where he will be posted, whether he should be in education or elsewhere?"
    SG: "Suppose the Central government sends a person as Secretary, Environment. Delhi is the capital of the country. You have neighbouring states. Maybe as per the policy of the Delhi government or irrespective of the policy, he starts having a non-cooperation with some secretary dealing with a similar department in Punjab and Haryana, Rajasthan or UP continuously. Suppose, the Haryana home secretary is dealing with terrorism and this man never cooperates. Would it not be necessary for the state government to say that you remain there but you are shifted to health? Suppose the health secretary, maybe as per the policy of the government or as per his own will, starts acting in a manner that there is an epidemic, and some actions are not taken for some reason, which might have an all India repercussion. The state government must retain its control. And if there is a bona fide reason that this officer is not suitable for the post, this officer has committed misconduct, then the disciplinary authority is, undisputedly as per law, the Ministry of home affairs. You just intimate the LG that please transfer this officer and the LG is under the obligation to forward it to the cadre controlling authority. This is how the scheme has worked so far. I have a list that whenever there was a request from the minister that either appoint someone or bring in someone else from somewhere to my department or transfer someone, LG has intimated in writing and the necessary actions are taken. But as per the constitutional provision, that power is retained by the central government, by LG as a representative of the President of India because you’re administering the capital of the country. I am not in functional control"
    Justice Narasimha: "Once the allocation is made to a particular state or union territory, the IAS cadre rules say the posting is to be left to the state. Dr Singhvi, on the other hand, also said that the posting will vest in the state but the union would continue to have the disciplinary authority. In IAS, we know invariably that the cadre controlling authority is always the union because DOPT will control that with regard to postings, assignments. Tell us the distinction between state and Union territory and the distinction between GNCTD and the union territory?"
    Justice Kohli: "how are you doing it in other union territories?"
    SG: "Through administrator. In Delhi, only the nomenclature of the administrator is LG. It is not a governor in that sense"
    SG: "All India service officers are appointed under the all India services act. Once I clear the examination I can choose my cadre. Depending on my ranking, I get the cadre. All our state carders. Except for AGMUT cadre. AGMUT cadre includes Arunachal Pradesh, Goa, Mizoram, Andaman and Nicobar, Chandigarh, Daman and Diu, Dadra Nagar Haveli, Lakshadweep, Puducherry, Ladakh, Jammu and Kashmir, Delhi. If I am given AGMUT cadre, I can be transferred to any one of these only. There is no separate cadre union territory-wise. So far as Delhi administration is concerned, there are three tiers- 1st is all India services, second is DANICS, The third year is Delhi administration subordinate service. That is group C and D services. The appointment to the 1st 2 tiers is made by the UPSC. So far as the third is concerned, central government has created a service selection board"
    SG: "The submission is that the very same amendment, that is, the seventh amendment which introduces union territories and which introduces the administrator for union territories, amends article 315 to include only the governor, meaning thereby that here, 'state' means 'state' and not 'union territories'. So there can be no Public service commission for a union territory, it was not contemplated. In 316, there is no provision for an administrator appointing the chairman of any such commission either. Then, there is 308 also. Reading them together, there are only state services and State Public service commission. If I can satisfy your lordships that there can be no Public service commission for UT, then contextually, the subject of services also is out because your lordships would not bifurcate it.
    There are only two services contemplated under part 14-union services and state services. For union territories, the union services go and serve. There is no third category"
    Justice Shah: "Otherwise union territory would be equated with state"


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