Delhi High Court: In a case wherein, the respondents filed an application for vacation of interim order dated 21-09-2023, by which the Court had restrained the respondents from discontinuing the services of petitioners and directed respondents to give stipends to the petitioners, Subramonium Prasad, J.* opined that since the Supreme Court had declined to stay the Order dated 05-07-2023, propriety demanded that this Court ought not to have passed any interim order which had the effect of the staying the Order dated 05-07-2023 and accordingly vacated the stay granted by its order dated 21-09-2023.
In the instant case, Delhi Legislative Assembly had issued an advertisement for engagement of Fellows, Associate Fellows and Associate Fellows (Media) under the Delhi Assembly Research Centre (‘DARC’) Fellowship Programme for a period of one year, extendable to another year based on the candidate’s performance. The Fellows were entitled to a fixed stipend and no other benefits or allowances.
Further, as per State (NCT of Delhi) v. Union of India, (2018) 8 SCC 813, State Government of NCT had legislative and executive power over ‘services’ under Entry 41, List II of the Seventh Schedule of the Constitution. On 19-05-2023, the President promulgated the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 (‘2023 Ordinance’), and inserted Section 3-A in the Government of National Capital Territory of Delhi Act, 1991, which excluded Entry 41, List II from the subjects over which the Legislative Assembly of the NCT of Delhi could exercise legislative powers.
Thereafter, Government of NCT of Delhi challenged the 2023 Ordinance by filing a writ petition in Supreme Court.
On 05-07-2023, a letter was issued by the Services Department, GNCTD, which directed the dis-engagement of the Fellows and Associate Fellows on the two grounds:
the prescribed provisions of reservations for SC, ST or OBC in temporary appointments lasting for forty-five days or more had not been followed in engagement of Fellows and Associate Fellows; and
as per Government of India notification dated 21-05-2015, ‘services’ was a reserved subject and that Delhi Legislative Assembly was not competent to appoint or engage such manpower without the approval of Lt. Governor.
Subsequently, on 06-07-2023, the Finance Department of GNCTD issued an order, which restrained Pay and Accounts Officers from releasing the salary of persons engaged as Fellows and Associate Fellows.
Thereafter, on 07-07-2023, the Speaker of Legislative Assembly wrote a letter to Lt. Governor, explaining that the post of Fellow and Associate Fellow was not a ‘civil post’ or ‘office’ created under Article 309 of the Constitution. Thus, question of violating the constitutional provisions of reservations did not arise as the Fellowship Programme did not fall under employment or appointment.
However, on 09-08-2023, the Legislative Assembly Secretariat issued an order which discontinued the engagement of Fellows and Associate Fellows in the DARC.
The present Court after noticing the differences in the stand between the Speaker of Legislative Assembly and Lt. Governor of Delhi, issued a notice on 21-09-2023, restraining the respondents from discontinuing the services of the petitioners and also directed that the petitioners should be given their stipends as they had not been paid since 06-07-2023.
Thus, the respondents filed the present application for vacation of the Order dated 21-09-2023. The respondents stated that in the writ petition filed by Government of India, an application seeking stay of Order dated 05-07-2023 was also filed, by which the engagement of Fellows and Associate Fellows in the DARC was discontinued. However, the same was dismissed. The respondent contended that since the issue was pending before the Supreme Court, this Court ought not to have restrained the respondents from discontinuing the services of the petitioners, as it would amount to stay of the letter dated 05-07-2023, which even the Supreme Court did not choose to interfere with.
The Court noted that the Order dated 05-07-2023 was specifically challenged by the Government of NCT of Delhi, wherein it was specifically argued that the said letter must be stayed. However, the Supreme Court chose not to stay the letter. Thus, the Court opined that the petitioners’ contention that since the Supreme Court had not passed any order in its application, it was open for this Court to consider the same, could not sustain.
The Court opined that since the Supreme Court had declined to stay the Order dated 05-07-2023, propriety demanded that this Court ought not to have passed any interim order which had the effect of the staying Order dated 05-07-2023 and other consequential orders.
Thus, the Court vacated the stay granted by its Order dated 21-09-2023 and stated that it was always open for the petitioners to approach the Supreme Court to get appropriate clarifications.
[Subhashini Ratan v. Delhi Legislative Assembly, 2023 SCC OnLine Del 6170, decided on 03-02-2023]
*Judgment authored by- Justice Subramonium Prasad
Advocates who appeared in this case :
For the Petitioners: Gautam Narayan, Asmita Singh, Harshit Goel and Siddhant Singh, Advocates;
For the Respondents: Santosh Kumar Tripathi, Pradymn Rao, Arun Panwar, Utkarsh Singh, Prashansa Sharma and Kartik Sharma, Advocates; Avnish Ahlawat, Standing Counsel with Laavanya Kaushik, Taniya Ahlawat, Aliza Alam, Mohnish Sehrawat and Nitesh Kumar Singh, Advocates; Anupam Srivastava, ASC for GNCTD with Vasuh Misra, Advocate; Sudhir Nandrajog, Senior Advocate with Vanshay Kaul, Advocate