SC: Chief secy to follow elected govt in issues under its control

The judgment came on November 29, when the court affirmed the Centre’s decision to give a 6-mnth extension to chief secretary Naresh Kumar

New Delhi Even as the Union government gained a legal and political win over the Delhi government with the Supreme Court recently deciding that the former has the power under the 2023 law on the administration of Delhi to unilaterally appoint the capital’s chief secretary, the court verdict highlighted that Delhi’s chief secretary “must” comply with the directions of the elected government over matters on which it has executive competence.

The judgment came on Nov 29, when the court affirmed the Centre’s decision to give a 6-mnth extension to chief secretary Naresh Kumar. (HT Photo)

“The actions (or inactions) of the chief secretary must not put the elected government at a standstill,” held a bench, led by Chief Justice of India (CJI) Dhananjaya Y Chandrachud in its November 29 judgment, which was released on Thursday.

The bench, which also comprised justices JB Pardiwala and Manoj Misra, dictated most of the judgment during the open court hearing on November 29, when it ruled in favour of the Centre’s unilateral authority and declined to interfere with the Centre’s decision to give a six-month extension to incumbent chief secretary Naresh Kumar. The detailed judgment, issued on Thursday, included certain key observations on the role of the chief secretary in the National Capital Territory of Delhi.

The court referred to its 1974 judgment in in EP Royappa Vs State of Tamil Nadu which dwelled on the importance of the post of chief secretary in terms of its sensitivity, responsibility, and the rapport required between the chief secretary and the chief minister.

“As observed by this court in Royappa, the post of the chief secretary is a ‘post of great confidence- a lynchpin in the administration’. This court, in the 2023 Constitution bench judgment, observed that civil servants are required to be politically neutral and must abide by the directions of the elected arm to give effect to the principle underlying the triple-chain of collective responsibility,” said the bench.

Underlining that the post of a chief secretary in Delhi is uniquely placed, the court pointed out that the Capital’s chief secretary performs functions which fall both within and outside the executive competence of the elected government.

At the same time, it emphasised: “The chief secretary, though appointed by the central government, must comply with the directions of the elected government over matters on which their executive competence extends.”

The court’s latest observations on the role and the duties of Delhi’s chief secretary augur well with its previous two Constitution bench judgments in 2018 and 2023, holding that Delhi government has exclusive legislative and executive powers, except under Entries 1 (public order), 2 (police) and 18 (land) of the State List on which only Centre can frame laws.

While the May 2023 judgment categorically declared that the Delhi government has control over bureaucrats assigned to departments under its purview -- effectively elaborating on a 2018 judgement, it took the Centre a week to come out with an ordinance effectively nullifying the ruling that gave chief minister Arvind Kejriwal a significant boost.

The ordinance restored the control over Delhi’s bureaucracy to the Centre, triggering yet another round of litigation between the Union and Delhi governments. While the AAP government demanded a stay of the ordinance complaining against the “arbitrary” and “undemocratic” provisions in the ordinance, the Centre maintained that “anarchy” and “administrative chaos” in the national capital led them to urgently promulgate an ordinance wresting the control over bureaucrats from the elected government.

On July 20, the matter was referred to a five-judge Constitution bench, noting that the power of Parliament to enact a law granting the Centre executive power over ‘services’ is not in contention. “However, this court while deciding the constitutional validity of the 2023 Ordinance must decide if the exercise of such a power is valid,” said the reference order. The court also declined the Delhi government’s plea to stay the ordinance, which has now been notified as an Act.

While the case has remained pending before the Constitution bench, the Delhi government approached the Supreme Court several times on issues ranging from appointment of chairpersons of tribunals to nomination in different panels.

The latest political and legal row between the Centre and the Delhi government over control of Delhi’s bureaucracy related to the appointment of the capital’s new chief secretary. The Delhi government pressed that the new chief secretary should be picked on its aid and advice whereas the Centre conveyed its decision to continue with Kumar for another six months, citing its powers under the new law.

On November 29, the top court ruled in Centre’s favour, underscoring that the 2023 Government of National Capital Territory of Delhi (GNCTD) Act specifically vests control of all officers, who are serving in connection with excluded subjects (land, public order and police), with the central government.

Singh Delhi’s chief secretary exercises administrative control over various subjects -- including land, public order and police -- that are outside the purview of the legislative or executive control of the Delhi government -- the Centre’s decision to extend Kumar’s tenure without the elected government’s concurrence “cannot be construed to be violative of law”, it added.

The AAP did not respond to requests for comment.

Delhi BJP president Virendra Sachdeva said, “Obviously, the chief secretary should comply with the directions of the elected government in matters of its domain, but then the chief secretary cannot be expected to shut his eyes if sees corruption in the elected government’s directives.”