Delhi govt vs Centre: SC split on control over services, refers it to larger bench

Justice Sikri was of the view that “transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly” while “for other levels, including DANICS (Delhi, Andaman and Nicobar Islands Civil Service) officers, the files can be routed through the Chief Minister to L-G”.

The Lt-Governor’s view, he said, would prevail in case of difference with the Chief Minister.

But Justice Bhushan was of the opinion that power over services lay only with the Centre. On the issue of services, he said: “I do not entirely agree with the opinion of my esteemed brother, however, I am in agreement with his opinion that Entry 41 of List II of the Seventh Schedule of the Constitution is not available to the Delhi Legislative Assembly” and hence “there is no occasion to exercise any Executive power with regard to ‘Services’ by the GNCTD.”

The bench upheld two notifications issued by the Centre on July 23, 2014, and May 21, 2015, which had the effect of excluding the jurisdiction of Delhi government’s Anti-Corruption Branch from probing offences committed by central government officials and limiting it to employees of the Delhi government. It also said the power to appoint Special Public Prosecutors would be vested with the Delhi government.

The bench held that “even after conferment of the status of quasi-State upon Delhi (which though in constitutional term remains Union Territory), Article 239AA (which gives such a status) itself excludes Entry 2 from the domain of NCTD. Thus, in respect of ‘Police’, NCTD does not have either legislative or executive power… Even in the Constitution Bench judgment, it has been emphasised time and again… that the text of Article 239AA is to be read contextually. Therefore, what has been specifically denied to GNCTD, it cannot venture to gain that power on such a plea.” Entry 2 in List II (State list) of the Constitution deals with the subject of police.

The bench was unanimous that the power to appoint commissions under the Commission of Inquiry Act, 1952 would be vested with the Centre and not the Delhi government.

The Delhi government claimed that the power to appoint the commission “is a power incidental to governance as it is a means of a government informing itself of matters of public importance. By its very nature and in the interest of good governance and in principle, such a power cannot be denied to any government”.

But the bench, which interpreted the definition of State in Section 2(60) of the General Clauses Act, said “it is specifically provided that in respect of Union Territory, the State Government would mean the Central Government”.

On the issue whether, under the Electricity Act, 2003 and the Delhi Electricity Reforms Act, 2000, the power to issue directions to the state commission is with the NCT government, the bench said “appropriate government” in this case was the “State Government…”

The bench held that the Revenue Department of the Delhi government had the power to revise the minimum rates of Agricultural Land (Circle Rates), but upheld the Delhi HC decision to set aside the notification issued by the state as it was not communicated to the L-G.

The judges went on to say “that normally, and generally, the L-G is expected to honour the wisdom of the council of ministers. He is also expected to clear the files expeditiously and is not supposed to sit over it unduly. He’s under duty to bear in mind expediency and urgency of the subject matter of the decisions taken by the GNCTD, wherever situation so demands. That in fact is the facet of good governance.”

“Likewise, the executive is also expected to give due deference to the unique nature of the role assigned to the L-G in the Constitutional scheme… Mutual cooperation, thus, becomes essential for the effective working of the system…” the bench said.