As Delhi pushes for control over bureaucracy, Centre tells SC bid to create wrong perception

He was responding to submissions by Senior Advocate A M Singhvi, who told the bench, also comprising Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha, that the government cannot carry on its work without having control over the bureaucracy.

The bench is hearing petitions arising out of the dispute between the Centre and Delhi government over control over services in the national capital.

Singhvi submitted that “without control of services I (NCT) won’t have any tools for governance”. He argued that civil servants will not feel answerable to the government if it does not have the power of posting and transferring them. “No civil servant will feel that he is answerable in any way. All these long lectures we are giving about accountability to the minister, minister to the legislature and legislature to people, he is simply not bothered. The practise of the matter is that you are only bothered about the person who can deal with you, who can post you, who can transfer you. In practice, all the homilies we give, civil servants are very smart people also. They know I am not to be bothered unless I am answerable to you. Therefore I am asking for a very minimalist power… which is implicit in the creation of the NCT as a constitutional legislature,” he argued.

Illustrating the practical difficulties that may arise in the administration of the NCT if there is no power to post and transfer civil servants, the senior counsel said: “Take an example… I am NCT. I decided that Covid needs me to appoint hundred staff members in Delhi government’s 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. 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’.”

He added that “these are real examples”.

Objecting to the argument, Mehta said that “as per the contemporaneous record, they are incorrect”. Calling it “rhetoric”, the SG said that though various governments came to power at the Centre and the state since 1992, there was no such issue so far.

Mehta referred to what CJI Chandrachud said in the 2018 judgement wherein a five-judge Constitution bench comprising him, by a majority, upheld the respective powers of the state assembly and Parliament.

“I rely on Justice Chandrachud’s one para on how that balance is to be maintained and that one crucial word was ‘with political maturity’,” said Mehta, adding: “Even today, the law is in place, which is being given effect to, that everything goes on without any friction, unlike the popular perception that only LG has the power and elected body is meaningless. It is the elected body which is in the seat of driving.”

The CJI asked, “When you say the elected body is in the driving seat, what the powers according to you the elected body has?”

In response, the SG drew the court’s attention to Article 239(AA)(4) and submitted that it says that in case of any difference between the elected government and the LG, the matter will be referred to the President.

“In 2018 (judgement), the court said any matter can be referred, doesn’t mean every matter can be referred. I have gathered the information, and you will be shocked after this rhetoric, right from 1992 till date, only 7 matters are referred by the LG to the President registering difference of opinion”.

He added that since the SC judgement in 2018, “18,000 files came to LG as per law laid down and all files (were) cleared”.

Singhvi contended that once a civil servant is allotted to the union territory, the power of posting and transferring the official has to be with that UT. “Here is a person who is trying to save his burning house. That is me. I am not trying to go and attack his house….I am trying to save what I have got”, Singhvi said.

He added, “It is something like a gearbox system. The constitutional gearbox of this to implement the civil service. You are giving me a gear system which I cannot change. Either I can drive only in gear number 1. I can’t speed up the car, I can’t go to gear 4. All the levers of the gear movement are in somebody else’s hand… This system can’t work. The car can’t move. The people of Delhi cannot benefit.”