The Delhi Government has moved the Supreme Court to challenge the Government of India’s May 19 ordinance which introduced a ‘National Capital Civil Services Authority’ to make recommendations to the Lieutenant Governor regarding matters concerning transfer posting, vigilance and other incidental matters.
The Delhi Government’s petition submits that the Government of India brought out the ordinance after the Supreme Court ruled that the Delhi Government has power over Entry 41 of List II. The Delhi Government argues that the ordinance was brought out to invalidate the Constitution Bench’s ruling.
The Delhi Government has challenged the ordinance, contending that it violates the scheme of federal and democratic governance enshrined in Article 239AA of the Constitution of India. The petition further argues that the ordinance negates the principle of federalism and primacy of the elected government.
“The principle of collective responsibility in a democracy – incorporated in Article 239AA(6) – requires that the elected government be vested with control over officials posted in its domain. In the federal context, this would require that such control be vested in the regional government – i.e. the GNCTD under Article 239AA – for matters in its domain. This essential feature was secured for the GNCTD by this Hon’ble Court’s 2023 Constitution Bench judgment, and is now sought to be undone by the Impugned Ordinance,” the petition reads.
“The Impugned Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service,” the Delhi Government argues. The Delhi Government also argues that as per Article 239AA, it has powers over all matters of state list excluding three subjects – law and order, police and land. However, the ordinance aims to add the subject of ‘services’ in the exclusions, without making a constitutional amendment.
The Delhi Government submits that it is settled law that it is impermissible for the legislature to overrule a decision. “The Impugned Ordinance attempts to reverse this Hon’ble Court’s ruling on each of these two aspects by simply amending the GNCTD Act, without amending the ruling’s basis, i.e. the Constitution itself. In so far as the Impugned Ordinance reverses this Hon’ble Court’s decision, it amounts to an impermissible ‘direct overruling’ or ‘review’ and is liable to be struck down,” the petition read.
The Delhi Government is challenging the Government of India’s ordinance on the grounds of manifest arbitrariness. The government argues that the ordinance would make governance impossible as it takes away its power over services. “By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the GNCTD, the Impugned Ordinance in effect and design allows the Union to take over the governance of Delhi,” the petition read.
The Delhi Government also argues that the Government of India’s ordinance is an abuse of powers under Article 123 of the Constitution of India. The government argues there was no urgency to promulgate an ordinance. “The unseemly hurry in reversing a ruling of this Hon’ble Court via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Delhi,” the petition read.
Government of India’s May 19 Ordinance
On May 19, the Government of India issued an ordinance amending the Government of National Capital Territory of Delhi Act, 1991, to constitute a ‘National Capital Civil Services Authority’ in Delhi. The Government of India’s ordinance comes after the Supreme Court’s May 11 ruling that the GNCTD has the legislative and executive power over administrative services in Delhi, excluding matters concerning public order, police and land.
The authority will comprise the Chief Minister of Delhi (ex-officio Chairperson), Chief Secretary (ex-officio Member) and Home Secretary (ex-officio Member Secretary) of Delhi.
The ordinance’s recitals state that the permanent authority “is being introduced to make recommendations to the Lieutenant Governor regarding matters concerning transfer posting, vigilance and other incidental matters” to give effect to “the intent and purpose behind the provisions of Article 239AA.”
The ordinance’s recitals also read, “Delhi as the national capital has a unique status and certain distinguishing features. There is a need to promote the national interests without compromising on the democratic aspirations of the residents of Delhi.”
Section 45H (1) states that the authority shall have the responsibility to recommend the transfers and postings of all Group ‘A’ officers and the officers of DANICS serving in the GNCTD, to the Lieutenant Governor. However, it excludes the officers serving in connection to subject matters connected with Entries 1 (Public Order), 2 (Police) and 18 (Land) of the State List under the Seventh Schedule of the Constitution of India, and Entries 64 (Offences against laws concerning matters under the State List) , 65 (Jurisdiction and powers of all courts, except the Supreme Court, concerning matters under the State List) and 66 (Fees in respect to matters under the State List, excluding court fees) of the State List under the Seventh Schedule in so far as it related to the Entries 1, 2 and 18 of the State List.
Furthermore, Section 45H (3) of the amended act states that the Lieutenant Governor, after the receipt of such recommendation u/s 45H (1) & (2), may pass appropriate orders giving effect to the recommendations. The first proviso to Section 45H (3) allows the Lieutenant Governor to ask for any relevant material regarding the Group ‘A’ officers, serving in the affairs of the GNCTD. The second proviso to Section 45H (3) allows the Lieutenant Governor to return the recommendation to the authority for reconsideration, with reasons recorded in writing, if it differs with the recommendations made.
Section 45H(4)(a) of the amended act states that the authority shall make recommendations for:
“(i) stability of tenure of posting of officers and other employees;
(ii) rotational transfers and postings from sensitive to non-sensitive posts and vice-versa;
(iii) determining suitability of officer for posting as Head of the Department;
(iv) transfers and postings of all officers and other employees serving in the affairs of the Government of National Capital Territory of Delhi;”
Furthermore, the Section 45H(4)(b) of the amended act states authority shall make policy in so far as it relates to:
“(i) the capacity building of the officers and other employees serving in the affairs of the Government of National Capital Territory of Delhi;
(ii) ensuring effectiveness in public services delivery in the Government of National Capital Territory of Delhi;
(iii) ensuring good governance and e-governance in public administration in the Government of National Capital Territory of Delhi;
(iv) ensuring greater transparency in the administration of the Government of National Capital Territory of Delhi;
(v) ensuring the presence of a citizen centric administration in the Government of National Capital Territory of Delhi; and
(vi) any other matter connected therewith or incidental thereto.”
Furthermore, Section 45I (1) of the amended act states, the authority is required to furnish an annual report “containing such details of the steps taken, proposals made and other measures undertaken by it in pursuance of its functions” to the Government of India and the GNCTD.
Section 45J (1) of the amended act states that the Minister in charge may give directions as they deem fit for the disposal of proposals or matters under their department by means of standing orders. Furthermore, Section 45J (3) of the amended act requires the directions and the standing orders be forwarded to the Lieutenant Governor and the Chief Minister of Delhi.
Section 45J (4) of the amended act requires certain matters and proposals to be tabled before the Lieutenant Governor and the Chief Minister of Delhi, before issuing orders, namely:
“(i) matters which affect or are likely to affect the peace and tranquility of the National Capital Territory of Delhi;
(ii) matters which affect or are likely to affect the interest of any particular community, the Scheduled Castes, the Scheduled Tribes and the socially and educationally backward classes or any other class of persons;
(iii) matters which affect the relations of the Government of National Capital Territory of Delhi with the Central Government, or any State Government, the Supreme Court of India or the High Court of Delhi and such other authorities as may be determined;
(iv) proposals or matters required to be referred to the Central Government under this Act;
(v) matters pertaining to the Secretariat of the Lieutenant Governor and personnel establishment and other matters relating to his office;
(vi) matters on which Lieutenant Governor is required to make an order under any law or instrument in force in his sole discretion;
(vii) matters specified under general or special order issued by the Lieutenant Governor under proviso to sub-section (2) of section 44;
(viii) petitions for mercy from persons under sentence for death and other important cases in which it is proposed to recommend any revision of a judicial sentence;
(ix) matters relating to summoning, prorogation and dissolution of the Legislative Assembly, removal of disqualification of voters at elections to the Legislative Assembly, Local Self Government Institutions and other matters connected therewith; and
(x) any other matter of administrative importance which the President of India or the Chief Minister may consider necessary.”