‘Are you stuck with one person?’: SC on Centre’s proposal to extend tenure of Delhi Chief Secy Naresh Kumar

“Show us tomorrow (Wednesday), the power to extend and show the ground on which you want to extend. Otherwise, you make an appointment of whoever you want,” CJI Chandrachud told Solicitor General Tushar Mehta, who appeared for the Centre.

On the last date of the hearing, the SC had suggested that the Centre or Delhi Lieutenant Governor give a panel of probable names from which the Delhi government can select one as the chief secretary.

On Tuesday, Mehta told the bench, also comprising Justices J B Pardiwala and Manoj Misra, that the Centre intended to extend Kumar’s tenure by a few months.

Opposing this, Senior Advocate A M Singhvi, who represented the AAP-led Delhi Government, said there was a lack of faith between the government and the officer. Singhvi also said the court could appoint anyone or the Centre could go by the court’s suggestion to submit a panel of names.

“Each day, why should the people of Delhi suffer? Your Lordships…can appoint anybody,” said Singhvi.

But CJI Chandrachud pointed out that the court had not stayed the Government of National Capital Territory (Amendment) Act, 2023, under which the Centre was claiming powers to appoint the chief secretary. The AAP government’s challenge to the law has been referred to a Constitution Bench and is pending a hearing.

“Equally Mr Singhvi, there is today a law which holds the field, isn’t it? We have expressly declined to stay the law,” said the CJI.

However, Singhvi said the court had acted in the matter of appointment of Delhi Electricity Regulatory Commission (DERC) chairperson. “Your Lordships acted on DERC despite that law”.

To which the CJI pointed out, “DERC was different. It was governed by the Electricity Act. That was the issue then… DERC was governed by a specific provision in the Electricity Act which is a parliamentary legislation dealing with DERC itself”.

Singhvi contended that there is nothing specific in the new Act which deals with the chief secretary.

Responding to the CJI’s query as to what the new act says about the chief secretary, Mehta said, “Section 45 says that CS means the chief secretary of the Government of NCT appointed by the Central Government. It’s the exclusive domain of the Central Government under the new law, which is subject of course to your Lordship’s scrutiny”.

Singhvi, however, insisted the power is not exclusive and added that the appointment was always by the Ministry of Home Ministry on the aid and advice of the chief minister.

With the two sides not relenting, the CJI told Mehta, “Solicitor, then what you do is you go by the law. This man is superannuating. Let him superannuate. You make a fresh appointment under Section 45”.

Mehta submitted that “even a superannuated person can be extended if the government so wishes”.

When the CJI asked “Are you stuck with only one person?”, Mehta replied it was not so and added that there are several administrative reasons. He added Singhvi “wants to convey to Your Lordships that one officer is such that the entire elected wing is unable to function”.

The CJI said, “What we are saying is this. We had put you in a bind that you give them a panel of five or so names, they will select one. We have seen the provision of Section 45. You make an appointment of chief secretary under 45, you appoint somebody. Whoever you want to appoint you appoint”.

Mehta said, “It can be in the law of the same person also”.

To the bench’s query as to under what power the extension can be granted, the SG said, “We will mention the power.. there are officers who are being given extensions. That’s the statutory power of the government”.

Seeking to explain why the extension was proposed, Mehta said, “The way which was found is that till the court decides the validity of the Act… One person with whom the entire government is afraid of let him continue for some time”.

“Ultimately, they may have a point about why you are insisting on only one,” said the CJI. “You make an appointment, we are not holding you down to our suggestion that you give a panel and he will select one. You select any IAS officer of your choice who will come here and occupy the post of the chief secretary,” CJI reiterated.

Singhvi termed it an ego issue, but Mehta was quick to deny it. The senior law officer said he will respond to the court when the matter is taken up on November 29.