"The Question We Have To Answer Is...": Supreme Court On Centre-Delhi Row

Terming "collective responsibility, aid and advice" as "bedrocks" of democracy, the Supreme Court on Wednesday said it will have to find a balance and decide whether the control over services in Delhi should be with the Centre or the Delhi government or a median has to be found.

A five-judge Constitution bench headed by Chief Justice DY Chandrachud, while resuming the hearing on the vexatious Centre-Delhi government row over control of services, also inquired about the legal position and asked whether the Aam Aadmi Party government will have the power over the posting of an officer who has been allocated the Union Territory cadre.

Solicitor General Tushar Mehta, appearing for the Centre, commenced the submissions by saying he would try to "disabuse" the perception which has sought to be created that the Lt Governor is "doing everything", "the officers have allegiance elsewhere" and the Delhi government was "just symbolic".

"Right from 1992 till date, only seven matters have been referred to the President citing the difference between the LG and the Delhi government and ...total 18,000 files came to the LG as per the law and all files were cleared," the law officer told the bench which also comprised justices Justices M R Shah, Krishna Murari, Hima Kohli, and P S Narasimha.

"The hon'ble chief minister writes the ACRs (Annual Confidential Reports) of the officers allocated to the Delhi government (by the Centre)," he said, adding that they have been getting impressive 9 to 9.5 ratings on a scale of 10 from the CM.

"I agree that collective principle must be respected. I must point out that we are dealing with a matter of perception and not constitutional law," he contended.

During the day-long hearing, the bench referred to the three entries such as public order, police, and land on the State list of subjects where the Delhi government cannot legislate as per Article 239AA (Special provisions with respect to Delhi).

"Article 239AA preserves collective responsibility, aid and advice - these are bedrocks of democracy. And three subjects (public order, police and land) have been carved out in national interest. So you need to balance both. The question we have to answer is control over public services. Should control on public services lie exclusively with one, or another, or there should be a median," the bench observed.

It also asked senior lawyer A M Singhvi, appearing for the Delhi government, and the solicitor general about the legal position with regard to the power of posting civil servants after they are allocated a particular cadre, state, or Union Territory.

"Once a person has been allocated to a cadre, the state decides where he or she will be posted. Now will this apply to the Union Territory of Delhi?" the bench asked.

Mr Singhvi said once a person is posted to Delhi, their transfer, posting and other issues will come under the city government.

"I am asking for a minimalist power which nobody should have to ask for," Mr Singhvi said while concluding his submissions.

On the other hand, the Centre's law officer referred to the position of Delhi as "sui generis" (unique) and said it is the extension of the Union.

"All employees, right from All India services till downwards are recruited by the UPSC and governed by the central laws. So far as Delhi subordinate services are concerned it is under the President of India. So, for Delhi, there is no separate Act for service-related issues," the solicitor general said.

At the outset, Mr Singhvi, referred to various constitutional provisions and judgements to buttress his submission that for strengthening federalism the concept of "live and let live" needed to be followed in a "very real sense".

The bench also asked whether Delhi has constituted any services.

The Delhi Minorities Commission, the Lokayukta have been created under the laws framed by the assembly and they all create services, Mr Singhvi said.

"Collective responsibility is the ladder. A four-fold arrow, civil servant accountable to minister, minister to the legislature, legislature to people," he said.

"The power of appointing, transferring etc have to be with that Union Territory," he insisted, adding "The law hasn't changed, the harmony of working has changed." 

The solicitor general will resume his submissions on Thursday.

On Tuesday, Mr Singhvi said a government cannot function if it does not have control over services as the exclusion of civil servants will negate governance and render officials unaccountable to people.

Earlier, the Supreme Court had on August 22 last year said a Constitution bench has been set up to hear the legal issue concerning the scope of legislative and executive powers of the Centre and the National Capital Territory government over control of services in Delhi.

On May 6, the top court referred to a five-judge Constitution bench on the issue of control of services in Delhi.

The Supreme Court had said the limited issue of control over services was not dealt with by the Constitution bench which elaborately tackled all legal questions.

"The limited issue that has been referred to this Bench relates to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term services. The Constitution bench of this court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List.

"We, therefore, deem it appropriate to refer to the above-limited question, for an authoritative pronouncement by a Constitution Bench..., it had said.

Sub Article 3 (a) of 239AA, which deals with the status and power of Delhi in the Constitution, deals with the law-making power of the Delhi Legislative Assembly on the matters enumerated in the State List or the Concurrent List.

The plea by the Delhi government arises out of a split verdict of February 14, 2019, in which a two-judge bench of Justices A K Sikri and Ashok Bhushan, both now retired, had recommended to the Chief Justice of India that a three-judge bench be set up to finally decide the issue of control of services in the national capital.

Justice Bhushan had ruled the Delhi government had no power at all over administrative services, while Justice Sikri made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government and the view of the lieutenant governor will prevail in case of a difference of opinion on matters relating to other bureaucrats.

In the 2018 judgment, a five-judge Constitution bench had unanimously held that the Lieutenant Governor of Delhi is bound by the aid and advice of the elected government, and both needed to work harmoniously with each other

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