Kejriwal govt moves SC over Centre’s services ordinance

The govt said the ordinance shows contempt for the elected government by making a pretence of involving the CM

The Centre’s ordinance, which wrests control from the elected government over services, allows the Union government to take over the governance of the Capital, the Delhi government said on Friday while mounting a legal challenge of the ordinance in the Supreme Court.

Delhi chief minister Arvind Kejriwal. (PTI)

The ordinance, promulgated by the Centre on May 19, introduced a series of amendments to the Government of National Capital Territory of Delhi (Amendment) or GNCTD Act, 1991 to strengthen the position of the lieutenant governor (LG) in being the final authority in deciding matters relating to the transfer and posting of bureaucrats. It essentially negates the top court’s authoritative ruling from May 11 giving complete executive and legislative control over the bureaucracy to the Delhi government.

Seeking a stay on the ordinance, the Delhi government said it shows contempt for the elected government by making a pretence of involving the CM as part of a new body called the National Capital Civil Service Authority (NCCSA) created under the ordinance.

It said the ordinance violates the federal, democratic governance envisaged for the Delhi government under Article 239AA of the Constitution.

The petition, drafted by advocates Shadan Farasat and Hrishika Jain and settled by senior advocate Abhishek Manu Singhvi, said, “By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the government of national capital territory of Delhi (GNCTD), the Ordinance in effect and design allows the Union to take over the governance of Delhi.”

The ordinance introduces a whole new chapter – Part IVA – in the GNCTD Act to create the NCCSA and a public service commission for transfers and postings of the officers serving in Delhi government departments.

The Delhi government’s petition said, “The ordinance shows contempt for elected government.” Looking at the possibility where the CM can be outvoted by the other two bureaucrats, the petition said, “Though the ordinance feigns a degree of democratic involvement by making stray references to the chief minister, it in fact relegates the chief minister to being a minority-voice even in the authority tasked with making nonbinding recommendations.”

Referring to other parts of the ordinance, in particular Section 45K, which confers civil servants within GNCTD wide-ranging discretion to stall, disobey and contradict decisions taken by the council of ministers in-charge of GNCTD, the petition said this was exactly what was sought to be done by the 2015 Union ministry of home affairs (MHA) notification that took away Entry 41, relating to services and service commission from the legislative and executive control of the Delhi government. This notification was challenged by the Delhi government and was found to be unconstitutional by the Constitution bench.

Extensively referring to the May 11 judgment, the petition said, “The ordinance, by seizing control over civil servants posted in the GNCTD... attempts to hand over the administration of the GNCTD to the Union of India.”

A democratic and federal form of government, so also the non-retrogression of such forms, are basic features of our Constitution, the petition said, adding that the attempt to withdraw and erode the democratic, federal voice guaranteed to the people of Delhi after over 30 years of its recognition, could not have been done via constitutional amendment, let alone through the ordinance.

“Section 3A of the GNCTD Act brings about a constitutional amendment by executive fiat and is therefore liable to be struck down. It cannot be permissible for the Parliament to exercise its ‘concurrent’ competence over Entry 41 to change the nature of that entry from ‘concurrent’ to ‘exclusive’,” the petition said.

Further, the petition noted that the ordinance stipulates that the LG’s decision in respect of transfers, postings, and disciplining of civil servants shall be final in case of any “difference in opinion”.

“If this is upheld, every function of the LG to be carried out on aid and advice, can be reduced to eo nominee (i.e. the areas outside GNCTD’s domain) powers of an unelected official (LG), threatening the scheme of Article 239AA,” the petition said.

Such attempts will elevate the LG, and through his office, the Union of India, to the status of a court or a judicial tribunal.

The ordinance also stipulates (through Section 45D of NCTD Act) that all statutory bodies, commissions, boards, and authorities in the NCTD be constituted by and their members appointed by the President. “There are over 50 bodies working for the people of Delhi that would be hit by this one blanket provision, and the control over which will pass from the people of Delhi to the Union of India. After the civil service, these bodies are the epicentre of administration in Delhi,” the petition said.