'Taking Away Delhi Govt's Power Over Civil Servants Negates Federalism' : Singhvi Argues For GNCTD Before Supreme Court

The Supreme Court on Tuesday started hearing the case involving the dispute between the Delhi Government and the Central Government regarding the power of postings and transfers over civil servants belonging to All India Services serving the Government of National Capital Territory of Delhi. 

A Bench comprising the Chief Justice of India NV Ramana, Justice Krishna Murari and Justice Hima Kohli heard the arguments made by Senior Advocate Dr.Abhishek Manu Singhvi appearing for the Delhi Government.

It may be recalled that in February 2019, a two-judge bench of the Supreme Court had delivered a split verdict on the question of powers of the GNCTD and Union Government over services and referred the matter to a 3-judge bench.

Singhvi submitted that the impugned notification of the Centre restricting the Delhi Government's powers over services has come after decades of the Government of NCT passing laws and notifications for purpose of services. He submitted that upto date of impugned notification in 2015, Delhi has passed innumerable service regulations like the Delhi Fire Services Act 2007.

"Nobody had idea to issue notification like the one now issued. NCT is the only Union Territory in the country which has a Constitutionally made legislature, with full state powers minus three entries (1,2 and 18 - public order, police and land respectively). Nobody has disputed the Delhi's powers to appoint and post its officers for years", he submitted.

The impugned notification amounts to cutting down the powers of a democratically elected Chief Minister by making him subordinate to a unelected L-G. If an elected government cannot exercise power of control over civil servants, it will drastically affect governance. 

Article 239 AA of the Constitution, the Bedrock of NCTD:

Referring to the Article 239 AA and the three exceptions with respect to entries 1,2 and 18, Mr Singhvi submitted that the three powers of police, public order and land were always with the Lt Governor, however the impugned notification has for the first time added services as well.

He submitted:

• The notification has come 23 years after the Government of National Capital Territory of Delhi was Constitutionally created.
  
• It adds a fourth head, which is Constitutionally not ordained.
  
• The manner of putting it(services) with the other three entries is as if it has been always with Lt Governor or Central Government 

He referred to sub-clauses 3(a), 4 and 6 of Article 239AA to argue that the Constitution has given GNCTD full powers over the state list and on concurrent list, except the entries relating to public order, police and land and except to the extent of repugnancy with Central Laws.

Article 239AA speaks of a Council of Ministers (clause 4) and collective responsibility (clause 6), which means that the GNCTD is not like a Union Territory, and has all powers of an elected State Government, except the specifically excluded three matters.

Taking away the power over services affect the principle of collective responsibility

Mr Singhvi submitted that according to the Constitution Bench judgement(2018), in all matters other than the three exceptions, the Lieutenant Governor is bound by the aid and advice of Council of Ministers; but if something is of extraordinary importance, the LG  may act in his discretion however only in the rarest of rare cases.

Further, the Council of Ministers shall be collectively responsible to the legislative assembly, which is a principle of Parliamentary democracy. However, the LG is not accountable to the assembly, and hence taking away the power over services from the Council of Minister's affect the principle of collective responsibility.

Taking Away Delhi's Power Of Posting & Transfer Is Negating Federalism:

While arguing that federalism is important to this case, Singhvi submitted that by taking away power of posting and transfer, the Centre is negating federalism

"The joke now is a Cabinet Minister and the State Chief minister are at same rank. This is despite that the State Chief minister is 5 times more powerful than cabinet ministers", he said.

"We are not in ivory towers. Look at the practicality. What control the Government have over an officer if it has no power to even transfer? There is a Shakespearean saying one can't be a servant of two masters".

Impugned Notification Isn't Symphony But Disharmony:

Mr Singhvi referred to the Division Bench's judgement which stated that decisions taken by Constitutional functionaries should be in symphony with provisions of Constitution.

"All the three organs of the State must remain true to the Constitution by upholding the trust reposed by the Constitution in them. The decisions taken by constitutional functionaries and the process by which such decisions are taken must have normative reasonability and acceptability. Such decisions, therefore, must be in accord with the principles of constitutional objectivity and symphonious with the spirit of the Constitution", the Division Bench had observed

Mr Singhvi however opined that the impugned notification is not in symphony but in fact in disharmony with the spirit of the Constitution. 

Central Government Rules Give Power To Delhi To Transfer:

With regard to powers of posting and transfer in services, Mr Singhvi submitted that Central Government rules also give such power to Delhi.

"Please see the Central Government rules, I'm not dependent on that, they can change it tomorrow. But even the Central Government law gives me that power", Mr Singhvi said.

He stated that joint cadre authority means Centre selects officers for states including for Delhi and UTs, and then power is given to NCT to post and transfer. He referred to Rule 2c of the IAS rules to submit that the rules specifically say that State includes a Union Territory.

He added that, if Centre wants to change that law, they must do it through a law and not a notification.

Division Bench's Order Not the last word:

Referring to the split verdict given by the Division Bench, Mr Singhvi submitted that the bench's observations are not the last word, as the Judges didn't agree on many issues, and some points were not in consonance with Constitution bench's judgement

Question As To whether Delhi Has Legislative Power Under Entry 41 Needs To Be Decided By Court:

Referring to Entry 41, Mr Singhvi submitted that the power of 41 traces itself to Part XIV which deals with services, and is the general topic of services under Centre and states.

According to Mr Singhvi, under this part, unless the context otherwise requires the expression State doesn't include only Jammu and Kashmir.

Mr Singhvi submitted that the court must take an independent view, and iron out the difficulty. It doesn't matter what the division's bench said. What needs to be decided is that whether Delhi has power under entry 41, and if it does ,then decide if there's an incidental encroachment on police, land or public order.

"Justice Sikri actually says everything below Join Secretary will be with Delhi and everything above Joint Secretary will be with the LG. Now I either have the power under 41 or I don't", Mr Singhvi submitted

Centre's Argument That Services Are Only Available To State & Not Union Territory Is Incorrect: Mr Singhvi submitted that according to Centre, that Delhi being a Union Territory, the power under Entry 41 is not available to it.

However its argument that Delhi being a UT cannot invoke Entry 41 is incorrect. He added that All India Services are by definition concurrent services, including both centre and state.

For purposes of Part XIV, State will include Union Territory:

Mr Singhvi submitted that Supreme Court in an earlier judgement ( Prem Kumar's case) held that UT and States and all entities are covered under 'services' and the State will include an UT for purposes of Part XIV ( services).

He added that Delhi in fact is a special entity, being the only Union Territory with constitutional legislature, with full powers of state except entries 1,2 and 18.

"I'm not saying public order I'll control through circulars under the entry. I'm not claiming to transfer police officers, I am only asking let me transfer my own officers! Where is the conflict?", Mr Singhvi said

Mr Singhvi further submitted that the Constitution bench has no where suggested that Entry 41 has been excluded from state's power. 

Centre seeks reference to Constitution Bench

Solicitor General Tushar Mehta and Additional Solicitor General Sanjay Jain requested that the matter be referred to a Constitution Bench. The SG submitted that the Centre has filed a review petition against the 2018 Constitution Bench judgment. The SG also requested that the services issue be heard along with the Delhi Government's challenge against the GNCTD(Amendment) Act 2021.

Singhvi opposed the Solicitor General's request and said that the 3-judge bench can hear the issue. He also disputed that the services dispute was connected with the challenge against the GNCTD(Amendment) Act 2021.

The Bench did not express anything specifically on the SG's request and posted the matter for further hearing on April 26. The Bench asked SG and Singhvi to argue both the matters.

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