Control on services must since Delhi is the national capital: Centre

Beginning final arguments for the Centre, solicitor general Tushar Mehta told the court that “the significance of Delhi as a capital and its control by the Centre is recognised in the Constitution”.

The control over the bureaucracy in Delhi is a matter of national importance since it is the Capital of the country, the Union government told the Supreme Court on Tuesday, but the judges asked if such an arrangement – in which the Centre alone can effect transfers – dilutes the functional control of the elected government in the city.

The Supreme Court is hearing a tussle between the Centre and the Delhi government over who controls the bureaucracy in Delhi. (HT Photo)

The exchange was during a hearing on Tuesday before a Constitution bench headed by Chief Justice of India Dhananjaya Y Chandrachud into whether the Delhi government can exercise legislative or executive control under Entry 41 of the State List, which relates to public services or the public service commission – the broad heads under which bureaucratic resources are determined.

Mehta also cited recent protests in the Capital to accuse the Delhi chief minister Arvind Kejriwal’s Aam Aadmi Party (AAP) of indulging in “theatrics” over the issue, seeking to know whether the court wanted to look into the agitations, to which the bench said that it was keeping itself confined only to the constitutional question.

Beginning final arguments for the Centre, solicitor general Tushar Mehta told the court that “the significance of Delhi as a capital and its control by the Centre is recognised in the Constitution”.

“What the Centre is claiming is recruitment, transfer and posting, and nothing else. The functional control will remain with the elected government in Delhi,” Mehta added.

The court shared its doubts on the feasibility of such an arrangement. “You are saying that we will post the secretary in a particular department. But suppose they (Delhi government) find that he is not functioning, they cannot even switch officers,” the bench observed.

The bench added a flip side to Centre’s argument and said: “Suppose an officer thinks I cannot be moved out of my position, say excise commissioner, unless there is a green signal from the ministry of home affairs (cadre controlling authority of central civil servants), will that not dilute even the functional control (available to Delhi government).”

“Sometimes wrong perception that is repeatedly said has a tendency of entering the mind,” Mehta said. “Almost a fiction is created by way of a public perception that the elected government has absolutely no control over the officers working under Delhi government.”

Mehta had opened the submissions on a related note.

“We thought we will confine to the legal and constitutional submissions because protest or theatrics can never take the place of submissions before a Constitution bench,” Mehta said, seeking to know whether the court had anything to ask on facts with regard to the protests or newspaper articles.

The court refused to wade into the matter. “We cannot decide a question of constitutional interpretation on basis of some material. We are deciding the constitution issues,” said the bench, which also comprised justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.

Senior advocate Abhishek Singhvi, appearing for the Delhi government, said he had much to say on what is happening, but has chosen to desist. “I have much more to say than he (Mehta) does. I have desisted completely. Where is the question of this initial excursion in this matter?”

“I would not reduce the debate before the highest court in the country to this level. But whatever happens in the Capital is seen by the world, which becomes a matter of embarrassment,” Mehta said.

“We will look at the constitutional arguments only,” the court said.

During the hearing, Mehta referred to the distribution of power under Article 239AA of the Constitution and said: “Article 239AA is structured in a way that while providing for a democratic government in Delhi, the major control of the major stakeholder, i.e., government of India, is retained over the capital of the country.”

The Centre also submitted that a public service commission for the Union territory is not envisaged in the Constitution.

On this argument, the bench said, “Your argument that there cannot be public service commission (PSC) for Union territory can be dangerous.” The Jammu and Kashmir Reorganisation Act, 2019, retained the erstwhile public service commission in the state despite J&K being carved out as a Union territory.

To a question put by the bench as to what the Delhi government sought through its petition, Singhvi said, “I am seeking what is rightfully mine in legitimate terms under Entry 41 of List II and every entry except three (public order, police and land), and all the executive rights which go with it. I must have the right to choose whom to post where and transfer where.” The bench likened the prevailing situation in the capital as “two swords in the same sheath that cuts both ways”.

Singhvi told the court to draw the line with regard to services. He will continue with his submissions on Wednesday.

Meanwhile, an application filed by IAS Officers’ Association represented by senior advocate Harish Salve sought to make submissions supporting the Centre’s arguments. Singhvi opposed it, saying: “It reflects politicisation of civil services. Even I can get few associations to file on my behalf. There needs to be some discipline in these proceedings.” The court agreed to examine the matter on Wednesday.