Delhi Govt vs LG | Won't Lack Of Posting Power Dilute Functional Control Over Civil Servants? Supreme Court Asks Centre

Justice Shah: "Union power is in entry 70 list. I. The state powers are under entry 41 of list 2. Entry 41 may not be applicable because it is with respect to states. Even as per the Constitution bench judgment, union territory is not a state. So entry 41 may not be applicable so far as union territory is concerned. The question which is posed is under which provision of law, with respect to a union territory, the state Public service commission would be applicable? Please see Jammu and Kashmir Reorganisation Act because you will immediately get under which provision the Parliament exercised this power"

Justice Chandrachud: "Look at the last part of Article 246(4) (Parliament has power to make laws with respect to any matter for any part of the territory of India not included in a state notwithstanding that such matter is a matter enumerated in the state List)....Even if the matter is in the state list, the Parliament, in exercise of power in that provision for union territory….But this is not even in the state list according to you"

SG: "That provision in the Jammu and Kashmir reorganisation may then be bad in law perhaps, but that does not mean that the Delhi legislative assembly has the legislative power...."

Justice Chandrachud: "Your argument that there cannot be a public service commission for a union territory would be a very dangerous argument"

SG: "It can’t be. It cannot be done till the Parliament provides"

Justice Chandrachud: "Article 309 gives power to the Union to control all service conditions of persons appointed in relation to the power of the union. Your argument would be that the affairs of the union in 309 would mean the entirety of the affairs of the union including all services. The other countervailing argument could be that the affairs of the union in article 309 should include those matters which are entrusted to the union by 239 AA. One way to look at it is that the entirety of the canvas of the union territory of Delhi, notwithstanding 239 AA, is an affair of the union. Because the union has jurisdiction on list I, List II and list III"

SG: "Under 239 AA, they are entitled, they can function. The officers will be answerable to the ministers, the council of ministers, the chief minister, not to anybody else. So far as the administrative control is concerned, it would signify the decision as to who would be posted, in which position and post, in the affairs of the Delhi, transfers to be affected, disciplinary action to be taken- this control is absolutely necessary, since Delhi is the capital, and the central control is not only desirable but constitutionally permitted without in any way interfering with the absolute functional control of the elected wing"

Justice Shah: "According to them, the GPS, where to go, left, right, centre, that is with the union. That is the difference between the administrative power and the functional power. According to them, if they want to go straight, they cannot go because of the administrative power that the direction will be right side, left side. This is absolutely in the lighter vein. It has nothing to do with anything"

SG: "They have the steering wheel, they have the gears, they have the clutch, they have the break, they decide the direction also. Only the make of tyres, whether it will be MRF or Ceat, is done by the LG. And if still you cannot drive, then there is something seriously wrong with your driving ability, not with the selection of tyres"

Justice Chandrachud: "As we know in the states for instance, the most important part is that you post an officer, whether an officer will be a Secretary, finance, Secretary, home, Secretary, education, Secretary, environment, Secretary, youth affairs or sports. What we are saying is we will post you as Secretary, finance. Once you are posted as Secretary, finance, you will act under the jurisdiction of the Minister, finance. You will be posted as Secretary, education, then you will be reportable to the Minister for Education in Delhi. Suppose they find that somebody is not really functioning as effectively in that particular role- Dr. Singhvi also conceded that we don’t have disciplinary jurisdiction-but they cannot even switch officers!"

SG: "I will show they can. They can say that this person is not for the health ministry, post him to the industries ministry. They have to send in a letter through the LG to the MHA. That is never refused!"

Justice Chandrachud: "That is a matter of accommodation and practice. An officer knows that I cannot be moved out of this position at all, I cannot be moved out as an excise commissioner however I do unless I have a green signal from the MHA. Will that not dilute even the functional control? That is the point. Yes recruitment, disciplinary control, you are right. Dr Singhvi did not even go as far as that. He made a very nuanced argument. The question is about posting"

SG: "Sometimes a wrong perception repeatedly repeated and carefully orchestrated through various mediums has the tendency of entering our minds....The media has carried an article that out of seven differences (between the Delhi government and the LG), five are in this regime. I am ready to place before your lordships what is the truth. I am trying to place facts without going to the media. Right from 2012, there have been 18,000 files for differ-and-refer power. Only seven times, the LG differed. Five times, according to them, during this regime. That is the truth. They could not bring it by way of affidavit, but it came by way of a news item which I avoided. But intervention, differing and reference to President was made and I’m willing to Place the file before your Lordships....the Notification that services will be left in the governor’s discretion is a direction of the President in exercise of the power under article 239 r/w rule 46 of the Delhi Transaction of Business Rules, it was not an amendment"

Justice Chandrachud: "So according to you, it is a supplemental, incidental, consequential provision (in context of Article 4)? Okay, we got your point"

SG: "When it is the reorganisation, all incidental provisions, even if it amounts to amending the Constitution are applicable. It is the highest plenary power of the Parliament"

Senior Advocate Dr. Abhishek Manu Singhvi: "'In so far as' (in Article 239AA(3)(a)) is facilitative and not limiting, restrictive or reducing to vanishing point....If the concept of a service commission is anathema to a UT, how does the Parliament exercise it? If conceptually the two are anathema, if UTs cannot have service commission, the Parliament cannot enact the law, the Parliament cannot create the Public service commission of J&K or of Delhi"

Justice Chandrachud: "That would be an unfair assessment of his submission. He does not say that you cannot have a PSC or you cannot have services for UT. He says you have the services. For example, the AGMUT services. He says it is the parliament's power to create services for the UTs. If entry 41 does not apply, but the Parliament has no restrictions. Entry 41 would prevent the UTs legislature from enacting law but the Parliament is untrammelled. Even if the Parliament has no specific power, you have entry 97. There cannot be a legislative vacuum in India at all or in any country. Because there will be new subjects which emerge, power has to exist somewhere to legislate"

Dr. Singhvi: "There is no specific exclusionary article in the Constitution which says you can enact law under 40, 42 but not 41 of list II. Parliament could not have enacted either for Jammu and Kashmir or could try for Delhi except under 41"

Justice Chandrachud: "There is the ragbag legislation which refers to all the powers which the Parliament has- 97. Parliament's powers are untrammelled. It will apply where there is the specific entry which confers exclusive legislative jurisdiction on the state, like Entry 18 of list II- land tenure, land revenue. The Parliament cannot exercise power under entry 18. Here, the Parliament has power over everything"

Dr. Singhvi: "Only with respect to list 2, not generally. Your lordships are not considering a situation where the Parliament chooses to pass a public service service commission law for Delhi. Nobody is saying that they cannot pass"

Justice Chandrachud: "Can the Delhi legislature set up a state Public service service commission for Delhi? And assuming that the power is not given to the Delhi state legislature, can it still exercise executive authority over the area?"

Dr. Singhvi: "Because the answer is yes in the first case, therefore it is yes in the second case. It is is common ground, until you come to 41, that every item for list II Delhi assembly sitting in Delhi is passing laws every day. Forget entries 1, 2 and 18 (of List II, excluded by Article 239AA)"

Justice Chandrachud: "Does the enactment of part 14 take away that power? Is there any other entry in list 2 where conceivably it could be argued that it is not applicable to a UT?"

Dr. Singhvi: "Once 239 AA chooses to exclude six entries, where would your lordships be told to imagine that some other entries are excluded? This is a fundamental principle of interpretation"

Justice Chandrachud: "'in so far as' is really intended to be a mutatis mutandis"

Dr. Singhvi: "it is nothing but mutatis mutandis. That is what I have argued. Because we are dealing with a sui generis creature. Once you take that view, it harmonises everything. If Mr Mehta chooses to pass the law under 41, then your lordships would be dealing with a different situation but having not passed a law under 41, why is he going back to 97? Difference between a regular state and a UT is that the Parliament can enact on list II for a UT. Now suddenly you go back to entry 97? J&K is relatable to the exercise of power by the Parliament qua a UT only and only under entry 41 with regard to a state public service commission"