Explained| The tussle between the Delhi Government and the Center as Supreme Court reserves verdict

Supreme Court: The Constitution bench of Chief Justice D.Y. Chandrachud, M.R. Shah, Krishna Murari, Hima Kohli and P.S. Narasimha J.J., reserved its judgement in the case concerning administrative control over transfers and postings of civil servants in National Capital Territory of Delhi (‘NCTD').

The issue arose in 2016, when the Division Bench of A.K. Sikri and R.K. Agrawal J.J., referred the matter to the Constitution Bench of Supreme Court which interpreted the insertion of Article 239AA of the Constitution of India (‘Constitution'). The said provision provides for a special status to NCTD. The NCTD had then contended that the insertion of Article 239AA was intended to eradicate the hierarchical structure which functionally placed the Lieutenant Governor (‘LG') in a superior position to that of the Council of Ministers (‘CoM'). The same was opposed by LG stating that the President remained its Executive Head who exercised powers through LG. The court in that judgment had ruled that the LG is bound by ‘aid and advice' of the CoM of Government of NCTD (‘'GNCTD) and must attempt to settle any point of difference by way of discussion and dialogue.

The reference was answered in the above terms and was further directed to be placed before a regular Bench for adjudication which pronounced its split verdict on various individual aspects relating powers exercisable by elected GNCTD vis-a-vis the Union of India (‘UOI').

The Division Bench of A.K. Sikri and Ashok Bhushan J.J., however, differed on opinion on issue relating to ‘service' under Entry 41 of List II of the Seventh Schedule of the Constitution. The issue before the Court was whether the exclusion of ‘services' from the legislative and executive domain of GNCTD vide May 2021 notification of UOI, is unconstitutional and illegal.

The matter was eventually referred to the Constitution Bench on the Centre's request with the prayer that the purpose and intent of the expression “insofar as any such matter is applicable to Union Territories” in Article 239 AA (3) of the Constitution is the crux of the said provision.

During the hearing Senior Advocate Abhishek Manu Singhvi, referred to May 2021 notification which vested the power to assign postings and transfers within NCTD with the UOI and argued that the State or Union Territory (‘UT') cannot function when it does not control civil services and such an exclusion could not have been brought in by a notification.

The Senior Advocate further contended that even if there existed no separate Act on ‘services' in NCTD, the power to transfer the civil servants must remain with the elected government.

Solicitor General Tushar Mehta explained NCTD's unique position in terms of power sharing with UOI and stated that due to the strategic location, it has to be under the administration of the Union. He further stated that NCTD is ultimately an extension of the Union since it is a UT.

On that the Supreme Court questioned the Solicitor General on the purpose of the elected government for NCTD if its administration and control is entirely under UOI. The Solicitor General explained by stating that when the administrator takes decision over matters, he becomes answerable to CoM, therefore, the elected government. However, the administrative control regarding officers vests with UOI. He further pointed out that NCTD being a UT, cannot have its own cadre of officers as per Article 308 of the Constitution.

The Supreme Court observed it is not only the Central Government and States with the principles of federalism with clear demarcation of powers, but the concept of federalism also applies to UTs as well. The Court questioned whether UTs can have public service commissions and cited the example of Jammu and Kashmir Reorganisation Act, 2019 which incorporated a public service commission for the UT of Jammu and Kashmir (‘J&K').

The Solicitor General responded by stating that Article 239 AA confers special status to NCTD which cannot apply to J&K. Parliament continued to have public service commission for J&K since it already had one when it was a State. Constitution has given sui generis position to NCTD since it's the Capital of India. Provision of ‘services' are mentioned under Chapter XIV of the Constitution for Union and State. The Constitution being fully aware of the three units of governance i.e. The Union, State and UT categorically excluded UTs.

He further contended that the supremacy of the Union is constitutionally recognised by conferring jurisdiction on List II in the Seventh Schedule which is in respect of UTs. Since UTs are an extension of the Union, there is no contemplation of separate and independent services.

The Court then questioned the source of power of Union since List 1 of the Constitution forms Union Public Service Commission and Entry 41 of List II does not apply to UT. The only possible answer is in Entry 97 which is not under any of the Lists.

Solicitor General, however, went on to seek reference of the matter stating that the judgement of the 2018 Constitution bench interpreting Article 239 AA of the Constitution was contradictory with the nine-judge bench judgment in the case of NDMC v. State of Punjab (1997) 7 SCC 339 which had held that NCTD could not be accorded the status of ‘State' under the present Constitutional scheme. However, the 2018 judgement had asserted the supremacy of the elected government and held that the LG was bound by ‘aid and advice' of CoM.

The Court expressing its dimissory stated that a reference of the 2018 judgement at a later stage of arguments cannot be entertained. The request was vehemently opposed by the Senior Advocate representing the NCTD stating that a reference of the 2018 judgement after 3.5 years could result in huge dilatory. The Court, however, allowed the Solicitor General to place a two page note on reference since it was a question of law.

[Government of NCT of Delhi v. Union of India, Civil Appeal 2357 of 2017]

Advocates who appeared in this case :

For the appellant- Senior Advocate Dr. A.M. Singhvi, Senior Advocate Rahul Mehra, Advocate on Record Shadan Farasat, Advocate on Record Chirag M. Shroff, Advocate Chaitanya Gosain, Advocate Anand Thumbayil, Advocate Shailendra P Singh and Advocate Mr. Sushant Mehra

For the respondent- Solicitor General Tushar Mehta, Additional Solicitor General Sanjay Jain, Senior Advocate R. Balasubramanian, Advocate Rajat Nair, Advocate Kanu Agarwal, Advocate Saurabh Mishra, Advocate Rajesh Kumar Singh, Advocate Padmesh Mishra, Advocate Arkaj Kumar, Advocate Tanya Aggarwal, Advocate Gaurang Bhushan, Advocate Harshita Sukhija Advocate Shivam Shukla, Advocate. Nakul Rai Advocate Ashina Gupta and Advocate on Record Arvind Kumar Sharma

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