After the Supreme Court ruled unanimously in favour of the Delhi government on the issue of who controls the bureaucracy in the national capital, the AAP-led government has approached the top court again, this time over its unsuccessful attempt to replace incumbent Services Department Secretary, Ashish More. Why was the Delhi government unsuccessful despite the SC ruling? The bone of contention in the latest spat was Services Minister Saurabh Bharadwaj’s decision to replace the Services Secretary, Ashish More. More, a 2005-batch IAS officer, was to be replaced with Anil Kumar Singh of the 1995 batch within hours of the May 11 verdict delivered by the CJI DY Chandrachud-led SC bench. While Bharadwaj’s office accused More of absenting himself following the former’s direction to present a file for the transfer “of a new officer” to his post, sources from the department termed Bharadwaj’s decision “illegal” and “in contravention” of the All India Service Rules and procedure. Following this, Bharadwaj’s office said that “..the Special Secretary of the Services Department sent a communication to the Minister… indicating that the Ministry of Home Affairs notification dated May 21, 2015, has not yet been set aside. Along with this, the Services Secretary has not even initiated a file for posting a new office.” This 2015 MHA notification had put services, or the transfer and posting of officials posted to Delhi, under the Lieutenant-Governor ambit. Since the Centre was yet to modify the notification, it contended that the same could still be implemented in the capital. Why is the Delhi government knocking on the SC's doors again? On May 12, the Delhi government approached the top court once again on the grounds that the Central government did not approve its decision to transfer More. Senior Advocate Abhishek Manu Singhvi, appearing for the Delhi government, mentioned the matter before a Bench presided by CJI Chandrachud and sought an urgent hearing. Singhvi said that moving a plea for initiating contempt of court proceedings against the Centre for defiance of the SC order would take some time and urged the court to set up a Bench to hear the matter. “They are saying we will not transfer anyone. I can file contempt but it will take time,” he said, while urging the Bench to list it for early hearing. Finally, the CJI agreed to consider listing it the next week. What did the SC verdict say on control of officers? Stating that “in a democratic form, the real power of administration must reside in the elected arm of the state”, the five-member Bench held that the GNCTD will have legislative and executive control over administrative services in the National Capital Territory (NCT) except with regard to those expressly excluded under List II (State List) of the Constitution — public order, police, and land. “The legislative and executive power of Delhi over Entry 41 (services) shall not extend over to services related to public order, police and land. However, legislative and executive power over such services such as Indian administrative services, or joint card of services, which are relevant for the implementation of policies and vision of NCT of Delhi in terms of day to day administration of the region, shall live with Delhi,” the court said. The 106-page judgment held that Article 239AA(3) balances between the interests of the NCTD and the Union of India. The Bench said that although “Article 239AA(3)(a) confers legislative power to NCTD”, it does not confer legislative power to it “over all entries in List II”, also known as the State List. Adding that “Article 239AA(3) provides multiple safeguards to ensure that the interest of the Union is preserved”, the Bench outlined that the Delhi government shall not have the power to enact laws on “matters with respect to entries 1, 2 and 18 of the State List and entries 64, 65 and 66 of that List in so far as they relate to the said entries 1, 2 and 18”. This meant those matters which pertain to public order, police, and land were kept out of the purview of the Delhi government’s control. Further, the court observed that “sub-clause (b) of clause (3) of Article 239AA clarifies that Parliament has the power to legislate on “any matter” for a Union Territory (including on subjects with respect to which NCTD has legislative power under Article 239AA(3)(a)”. In other words, Parliament has the “plenary power” to legislate on a subject in any of the three Lists of the Seventh Schedule for NCTD. The Court also held that Article 239AA(3)(c) provides that where there is a “repugnancy” or contradiction between laws enacted by the Delhi government and Parliament, the latter will prevail, and the law enacted by the Legislative Assembly shall, “to the extent of the repugnancy, be void”.
