Delhi Govt vs LG : Who Has Power To Control Civil Services In GNCTD? Supreme Court Constitution Bench Reserves Judgment
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The Supreme Court on Wednesday reserved its judgment on the dispute between the Delhi government and the union government regarding control of administrative services in the National Capital Territory of DelhiThe five-judge bench of Chief Justice D. Y. Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard the rejoinder submissions of Senior Advocate...
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The Supreme Court on Wednesday reserved its judgment on the dispute between the Delhi government and the union government regarding control of administrative services in the National Capital Territory of Delhi
The five-judge bench of Chief Justice D. Y. Chandrachud and Justices M. R. Shah, Krishna Murari, Hima Kohli and P. S. Narasimha heard the rejoinder submissions of Senior Advocate Dr. Abhishek Manu Singhvi for the GNCTD
The Court also expressed surprise at the plea made by the Central government to refer the 2018 judgment in the GNCTD v. Union of India case to a larger bench, at the fag end of the hearing in the dispute relating to control of civil services in the Delhi government.
SG Tushar Mehta: "On Prem Kumar Jain's case, I may be permitted to file a two-page note on how it is not good law. I will file it by tomorrow. Secondly, I have already filed an application seeking reference, I have already argued the points"
Justice Chandrachud: "But we didn’t hear any arguments on the reference. This was never argued. We are now in rejoinder. It cannot be now after Dr Singhvi is in rejoinder, that your reference has to be argued. Dr Singhvi would have finished yesterday virtually. We were also flagging in energy at the end of the day yesterday and we thought we should give a fresh...."
SG: "Your lordships would recall that when I filed the application and Dr Singhvi objected, your lordships said 'you can always argue during submissions'. The Chief Justice was pleased to say so. Reference essentially is on the ground that the contours of federalism between union and union territories requires a relook. I am not repeating anything. It was covered in my argument. I will just put a two-page note. Your lordships infact said that let it not be separated and would be covered in the arguments"
Justice Chandrachud: "Reference was never argued. We would look at the matter very differently if the issue of reference was there. Now your side of arguments is finished....Alright, we will consider...."
SG: "When I mentioned that please allow me to circulate, your lordships have said that you can always cover it in your arguments"
Justice Chandrachud: "But it was not covered in the arguments, that is the point"
SG: "All points are covered without using the word 'reference'"
Dr. Singhvi: "This matter came before a division bench about 10 times. I think Justice Kohli was part of that bench. Over 10 times in one year or six months. It was listed for hearing, it went to three-judge. And not once was the reference mentioned, no application was filed. The matter was listed for the 10th and just a few weeks before that, it is raised. It is not told to your lordships that the prayer is identical to a review filed by my learned friend 3 1/2 years after the 2018 Constitution bench judgment (in the GNCTD case). This is nothing but the same thing. He files it in May, 2021, 3 1/2 years later. He is saying that the judgment should be reviewed because it is contrary to NDMC. That is the short point. Identical prayer in the review filed 3 1/2 years later. It was repeated again a few weeks before this bench was to convene. The Constitution bench does not allow these things. The reference is simply one sentence that there is the NDMC case and NDMC is nine judges and it should be referred. Your lordships have dealt with NDMC, good, bad or indifferent atleast 10 times in the constitution bench. What your lordships do in it is your lordships' prerogative there. You have already dealt with NDMC. For that reason, it should be referred to 9 judges or maybe 11? With due respect, this will be hugely dilatory after your lordships spent all this time today and we have gone to the Constitution bench and into everything...."
SG: "It can be anything but dilatory. Your lordships are dealing with the national capital. It may be done today or tomorrow, it hardly makes a difference. But my learned friend seems to be in a tremendous hurry to do certain things. We are more on the future course of action. We may not be remembered in history for having handed over the capital to complete anarchy. That is my argument and I have made the submission. I will just put in a two-page note"
Dr. Singhvi: "It is 140-150 pages. No reason given for reference. Don’t repeat this 'capital' as a mantra every time. Of course, it is the capital. But it is the capital with a legislature and with democracy. Today your lordships, having dealt with the entire 2018 judgment in so many paras, at the end of my rejoinder, a reference is sought?" It is unprecedented for a constitution bench"
SG: "I have covered the issues in my submission. If your lordships permit, I will place a two-page note. Can I place a two page note?"
Dr. Singhvi: "I would object. It will be ground subsequently for a nine judge bench"
Justice Chandrachud : "No difficulty, you can certainly circulate your note. It is a question of law"
SG: "Yes. And it’s entirely your lordships prerogative. Your Lordships may only record that your lordships are not considering it. Please let it not be that it was argued and rejected. I reiterate that your lordships may record that you’re not going into it or considering it"
Dr. Singhvi: "It should not become an ambush procedure"
Allocation of all India civil services in the AGMUT cadre is done by the joint cadre controlling authority and not by the MHA as stated by the solicitor general- Dr. Singhvi in rejoinder
Dr. Singhvi: "Ministry of Home Affairs is acting transitionally as a delegate of the joint cadre authority till the time the joint cadre control authority constitutes a committee, MHA is acting provisionally. Section 3(1) of the All India Services Act says the central government may after consulting with the government of the state concerned including the state of J&K and by notification in the official gazette, make rules for the regulation of recruitment and the conditions of service of persons appointed to an all India service. Come to the Rules under this- rules 4 and 5. Rule 4, on the Committee of representatives, says that there shall be a committee consisting of representatives of each of the governments of constituent states and it’s to be called the joint cadre authority. Mark the word 'constituent states'. Then duties and functions of the joint cadre controlling authority- it shall determine the names of the members of the all India services who may be required to serve from time to time in connection with the affairs of each of the constituent states and the period or periods for which their services shall be available to that government. It is common ground that in the joint cadre authority, Delhi sits through its chief secretary. Central government also sits. This is an admitted position. Obviously, 'state' does not mean 'state' because otherwise Delhi chief secretary cannot sit. In exercise of the powers conferred by 3(1) of the All India Services Act read with 4(1) of the all-India services (joint cadre rules), the central government in consultation with the government of states concerned constitutes the joint cadre authority for the IAS, IPS, IFS for Arunachal Pradesh, Goa, Mizoram and union territories mentioned. Secretary, Ministry of home affairs is one of the co-equal persons representing UTs in respect of the Indian administrative services and Indian police services. Chief secretary, Arunachal, chief secretary, Goa, chief secretary, Mizoram, chief secretary, Delhi are present. UTs are mentioned more than one. And the allocation of civil services in the AGMUT cadre is done by the joint cadre authority and not by the Ministry of Home Affairs"
Civil services board existed in the NCT of Delhi to advise on transfers and postings with the NCT of Delhi- Dr. Singhvi
Dr. Singhvi: "Existence of a civil services board in Delhi in fact shows that Delhi has been treated at par with a state and not a union territory which is not going to be enjoying any benefits of a state. The IAS Cadre amendment rules of 2014, post the judgment of T. S. R. Subramanian, make an amendment to rule 7- In exercise of the powers conferred by section 3(1) of the All India Services act, the central government in consultation with the government of the state concerned hereby makes the following rules further to amend the IAS cadre rules of 1954, these rules may be called the IAS cadre amendment rules of 2014. The amended Rule 7 says that all appointments of cadre officers shall be made on recommendation of the civil services board as specified in the schedule annexed to these rules. It further says that all appointments to cadre posts referred to in sub-rule (1)shall be made, in the case of a state cadre, by the state government, and in the case of a joint cadre, by the state government concerned. The Schedule to the amendment Rules says that every state government is to constitute a civil services board which shall consist of so-and-so. The civil services board shall make recommendations for all appointments of cadre officers. This is the civil services board functioning in Delhi. Where did it come from for a union territory if you read 'state' technically? The civil services board shall examine the cases of officers who were proposed to be transferred before completion of minimum period. They have always understood the UTs to be included in all these rules even if the word 'state' is mentioned. There is the civil services board, even though they don’t let us exercise the power and they exercise it"
Scope of entry 41, list 2 is wider than the scope of the proviso to Article 309 and any executive action under Article 309 does not limit the powers of legislature to make laws under entry 41- Dr. Singhvi
Dr. Singhvi: "309 starts with 'subject to the whole constitution'. 239 AA, dealing with our special Powers, is part of that Constitution and 309 is subject to it. It has been already decided by your lordships that UT is covered in the definition of a state. Absent any special provision of this chapter or this part, your lordships will never read 312 to include UTs and 309 to not include UTs. Absent specific exclusionary language, your lordships will never hold the UTs to be subsumed and UTs not to apply to 309 as my learned friend argues. Look at the startling consequences of that interpretation....As far as the AGMUT cadre for IAS and DANICS is concerned, the power relates to Entry 70 (of list 1), and as per applicable rules, power to post and transfer within NCT has been given to the elected government as per the rules.
The scope of 41 is wider than the power to make rules under 309. I cannot make rules under 309 and get away under 41, as argued by my friend"
Dr. Singhvi: "Your lordships have held that 'it is clear that the scope of Entry 41 is wider than the matter of regulating the recruitment and conditions of service of public servants under Article 309. The area of legislative competence defined by Entry 41 is far more comprehensive than that covered by the proviso to Article 309. By virtue of Articles 246, 309 and read with Entry 41, List II, therefore, the
State legislature had legislative competence not only to change the service conditions of state Civil Servants with retrospective effect but also to validate with retrospective force invalid executive orders retiring the servants, because such validating legislation must be regarded as subsidiary or ancillary to the power of legislation on the subject covered by Entry 41'....Unless your lordships hold that 309 excludes all UTs, that is a different matter. The proviso of 309, which is not so frequently noticed, says that 'Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a state or such person as he may direct in the case of services and posts in connection with the affairs of the state, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act'. 'Appropriate legislature' will include UTs legislature. 309 refers to the ultimate enactment by the legislature"
'In respect of all India services, the statutory rules framed under the All India Services Act 1951 will trump the executive notifications issued by the central government including the impugned notification and the statutory rules clearly indicate that state will include union territories'- Dr. Singhvi
Dr. Singhvi: "Rule 46(1) of the Delhi transaction of business rules says that with respect to persons serving in connection with the administration of the National Capital Territory, the LG has to follow either the statutory rules framed or has to follow any other presidential order and consult with the chief minister under 239. The impugned notification of 2015 in this case, in addition to seeking to exclude entry 41 of List II from the executive and legislative care of the Delhi assembly, proposes to delegate certain powers of the central government to the LG. As per settled law, this will be subject to extant rules already framed by the central government. In respect to the all India services, the central government has made statutory rules under the power granted to it under 3(1) of the act. Rule 2(c) of the IAS cadre rules define state as including UT. The rules clearly indicate that once an officer is allocated to a particular state or UT, transfers and postings within the state shall be the responsibility of the respective state/UT. Further, it is settled law that statutory rules will trump executive notification, as the notification derogates from statutory rules under all india services act on the power of the elected NCT government to transfer and post AGMUT cadre and DANICS officers"
Justice Chandrachud: "We say that you should not allow your mind to boggle, but there is a legal fiction in 239 AA, as a result of which the entirety of list II of seventh schedule is basically a concurrent power In relation to the UT of Delhi. The Parliament can legislate on the entirety of list II. If the parliament can legislate with the entirety of list II, in addition to list one and three, then the Parliament has the power to legislate under entry 41 of list II also. If Parliament has the legislative power over entry 41 of list II, then there is no need to take recourse to entry 97 (of List 1, residual power of the Parliament). You take recourse to entry 97 and article 246 when you have no other residual powers. To find out if there is parliamentary legislative competence, you have to ask yourself only one question- if there is some entry in List 2 which covers the subject. If it is there, then the Parliament has no power. If there is no such subject in the list II, then the Parliament has power under list1 or 3 or entry 97. Here, the Parliament undoubtedly has power under entry 41 of list 2 because it is concurrent"
Dr. Singhvi: "The scheme of 239 AA provides adequate checks and balances for protection of national interest in the NCT of Delhi. What more protection can your lordships give other than giving the Parliament entire list II as concurrent list. Can you give any more protection? The issue is that absent Parliament exercising contrary legislative powers, somebody in the concurrent list cannot exercise the same powers because it is a UT. That is the issue. A conjoint reading of 239 AA (3) and (4) provides that the conscious scheme adopted by the Parliament in exercise of its constituent powers is that the legislative power and concomitant, co-extensive executive power of the NCT can be legislatively overriden by Parliament. It is as simple as that. Parliament needs to make law or existing law is to be applied to trump the power of legislative assembly of NCT. Your lordships are given a picture as though somebody’s hijacking the national capital"
Dr. Singhvi: "There is a difference between Parliament and the central government. My problem is that my learned friend is reading the Parliament to be the central government. The Parliament has been given the power to trump everything. He is saying central government should be given the power to trump. But the notification in this case is the central government notification, that is not the Parliament. Please exercise your Parliamentary power. The union is trying to obliterate the distinction between Parliament and central government. Assembly of NCT has full play on any unoccupied field in any entry in list II. Acceptance of the union's argument and upholding of the impugned notification would grant the union government with an executive override. Your lordships have given Parliamentary override. My friend gives to himself executive override by the impugned notification, which is nothing but adding entry 41 to entries 1, 2 and 18 (of List II, as excluded from the domain of the GNCTD by Article 239AA) by executive order. Your lordships give the Parliament override, he is trying to give the executive override over NCT of Delhi. This is opposed to the scheme of 239 AA. It must be borne in mind that there are both legislative and executive checks which control the exercise of power. The entire list 2 for the NCT effectively works as a concurrent list. What he says will create discordance because executive override of central government can never be envisaged with the Parliamentary override. If any law made by assembly is in conflict with the Parliament law, the same will be reserved for consideration of the President. Further, in terms of the Functioning of the executive, that is a separate power to refer...."
CASE TITLE: GOVT. OF NCT OF DELHI v. UNION OF INDIA