Why have an elected govt in Delhi if full control is with you, Supreme Court asks Centre

Mehta said there is a difference between functional control of officers and their administrative or disciplinary control, and that the former is always with the minister as representative of the elected government.

“When a Central services officer or DANICS officer or IAS officer is posted at Dadra and Nagar Haveli as a commissioner under the obligation of issuing licences, then he will be guided by the policies of the state government. He will be governed by the transaction of business rules and will be answerable to the minister. Minister will formulate policy, how to give licence and how not to give licence, what are the parameters to be considered, how the ministry will run. The functional control will be of the elected minister,” he said.

“We are concerned with administrative control. Who posts, who appoints, who departmentally proceeds, who transfers. But that officer cannot ask the Home Secretary whether I should give licence or not. For that, he will have to report to the ministers. There are two different things – functional control is obviously with the minister concerned,” he said.

The CJI wondered if that would not lead to an anomalous situation. “Suppose the officer is not properly discharging functions, see how anomalous this will be… Delhi government will have no role to say we will send this person and get somebody else. Where will they be? Can we say they will have no jurisdiction over authority in respect of where he will be posted, whether he should be in education or elsewhere?” he said.

In reply, Mehta said the “disciplinary authority is, undisputedly as per law, the Ministry of Home Affairs. You just intimate the Lieutenant Governor that please transfer this officer and the LG is under obligation to forward it to the cadre controlling authority. This is how the scheme has worked so far.”

“I have a list that whenever there was a request from the minister that either appoint someone or bring in someone else from somewhere to my department or transfer someone, LG has intimated in writing and necessary actions are taken. But as per the constitutional provision, that power is retained by the Central government, by LG as a representative of the President of India, because you are administering the Capital of the country. I am not in functional control,” he said.

Underlining the “unique status” that Delhi enjoys in the national scheme, Mehta said, “Central government must have a say as to who will be appointed and who will head which department.”

“Bureaucracy is not related to any party, any government. It is related to the Constitution of India. If the national Capital is under siege and the arterial road connecting to the Capital is blocked with permanent structure and if the government of Delhi sends food, it is the responsibility of the bureaucrat to communicate to the LG that this is the Capital and the Capital cannot be under siege. If during the Covid period, the number of tests are brought down with a view to ensure that the figure is low, because it would affect the future course of action, the Health Secretary would have to bring it to the notice of the LG,” he said.

“I am not saying the bureaucracy should be loyal to the Central government but the Central government must have a say as to who will be appointed and who will head which department. They are bound by the transaction of business rules, reporting to the minister, taking orders from the minister, bound by instructions of the minister.  If any difference is there, it goes to the Council of Ministers. The Council of Ministers is supreme… collective responsibility, democratic functioning. But to say that once the officer comes under my jurisdiction, it is my decision as to what he deals with, that goes against the very spirit with which (Article) 239 AA was introduced,” he said.

The arguments remained inconclusive and will resume January 17.