Delhi govt moves SC challenging Centre’s ordinance, seeks interim stay

The ordinance, added the plea, does so without seeking to amend the Constitution of India, in particular Article 239AA, from which flows the substantive requirement that power and control in respect of Services be vested in the elected government.

“It is not in contention that Article 239AA confers legislative competence over ‘Services’ concurrently on the Delhi Assembly as also the Parliament. However, it is a fundamental precept of the Constitution that the question of competence is distinct from the validity of legislation passed in exercise of such competence,” the government said in the plea.

The ordinance, “by violating the substantive requirements of Article 239AA of the Constitution, as interpreted by two Constitution Benches of the SC, fails to be a valid exercise of competence,” the plea said.

The NCT government termed the ordinance “an unconstitutional exercise of executive fiat that violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA…” It also said the ordinance is manifestly “arbitrary” and “legislatively overrules/reviews” the May 11, 2023, SC Constitution Bench judgment “without altering its basis, which was that accountability of civil servants to the elected arm of the government, and the elected government’s control over the civil service, is a substantive mandate of the model of governance envisaged by the Constitution, including for NCT of Delhi, under Article 239AA”.

The NCT contended that it “is an impermissible and unconstitutional abuse of ordinance-making powers under Article 123 of the Constitution”.

It said the “unseemly hurry in reversing” the SC ruling “via the 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 ordinance created a National Capital Civil Service Authority that will have power to recommend transfer and posting of all Group A officers and officers of DANICS serving in Delhi.

Headed by the CM, the Authority has the Chief Secretary and the Principal Secretary, Home Department, as members. All matters needed to be decided by the authority are required to have a “majority of votes of the members present and voting”, which effectively means that the decision of the Chief Minister can be overruled by the two senior bureaucrats appointed by the Centre.