Centre moves ordinance to negate SC verdict on Delhi services

Centre on Friday evening issued an ordinance restoring to itself the power over “services” by way of making a raft of major amendments in GNCTD Act, 1991.

A week after the Supreme Court ruled that the Delhi government has control over bureaucrats assigned to departments under its purview, the Union government on Friday evening issued an ordinance restoring to itself the power over “services” by way of making a raft of major amendments in the Government of National Capital Territory of Delhi (GNCTD) Act, 1991.

Delhi CM Arvind Kejriwal and LG VK Saxena. (ANI)

The ordinance also strengthened the position of the Lieutenant Governor (LG), making him the final authority who can act in his “sole discretion” in deciding the matters relating to transfer and posting of bureaucrats. In a move perceived as nullifying the constitution bench judgment on May 11, the Centre has introduced a whole new chapter in the GNCTD Act, Part IVA, to create a National Capital Civil Service Authority (NCCSA) and a public service commission for transfers and postings of the officers serving in the affairs of the Delhi government. Delhi, so far, did not have a service commission of its own.

The ordinance now envisages a separate cadre for Delhi, to be drawn from the Union Public Service Commission (UPSC) and the Delhi Subordinate Services Selection Board (DSSSB).

The Delhi chief minister will be the ex-officio chairman of NCCSA, stated the amendment, adding that the Delhi chief secretary and its principal home secretary will be the other two members of this permanent authority that will make recommendations regarding transfer, posting, vigilance and other incidental matters of bureaucrats to the Lieutenant Governor.

At the same time, the ordinance centralises the powers regarding “services” with the LG, stating that the LG will take the final decisions regarding the recommendations made by NCCSA. This committee will decide by voting, and the LG, on receiving the recommendation, will have the discretion to send it back for reconsideration. In the event of any difference of opinion, the opinion of the LG will be final.

“This would statutorily balance the interest of the nation with the interest of Union Territory of Delhi in administration of the capital by giving purposeful meaning to the manifestation of democratic will of people reposed both in the Central Government as well as the GNCTD,” the ordinance said while referring to the new body being created.

The move is the latest twist in a long and bruising battle between the Centre and the Delhi government that has hampered administration in Delhi as matters have come to a head in recent months. The two sides have fought over control at various levels, and the Supreme Court May 11 order had appeared to bring some closure on the key aspect of who is in charge of what aspects of governance.

The AAP described the move as a “contempt of the Supreme Court”, while the Delhi BJP welcomed it.

An ordinance needs to be replaced by a law passed by Parliament within six months.

To overcome the effect of the judgment, the ordinance introduced Section 3A which states: “Notwithstanding anything contained in any judgement, order or decree of any Court, the Legislative Assembly shall have the power to make laws as per Article 239AA except with respect to any matter enumerated in Entry 41 of List II of the Seventh Schedule of the Constitution of India or any matter connected therewith or incidental thereto.”

Entry 41 of List II relates to state public services and state public service commission. By a 2015 notification, the Union government had that laid down that the Delhi government will have no powers over services.

In its May 11 judgment, the five-judge bench led by Chief Justice of India Dhananjaya Y Chandrachud had frowned upon the Centre’s 2015 notification, saying: “A constitutionally entrenched and democratically elected government needs to have control over its administration,” and added that “in a democratic form of government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution.”

In the judgment, the top court reiterated Delhi’s unique status, and handed over the power to control bureaucrats to the Delhi government, giving chief minister Arvind Kejriwal a significant boost at a time when his administration has been locked in a bruising fight with the Union government for executive control over the Capital.

“If a democratically elected government is not allowed to control its officers and hold them to account, then its responsibility towards legislature and the public is diluted. If an officer is not responding to government, the collective responsibility is diluted… if officers feel they are insulated to the elected government, they feel they are not accountable,” said the five-judge bench.

The ordinance now gives statutory protection to the 2015 notification by adding it as Section 3A of the Amendment Act. The Ordinance has not been applied to officers of IPS or those falling under police, land and public order over which the Centre has the exclusive executive and legislative control.

According to the stated objective of the ordinance, the Supreme Court was required to consider a reference concerning the subject of services in the NCTD since there was no parliamentary legislation dealing with the subject of ‘services’.

“In view of its special status as a national capital, a scheme of administration has to be formulated by Parliamentary law, to balance both local and national democratic interests which are at stake, which would reflect the aspirations of the people through joint and collective responsibility of both the Government of India and the Government of National Capital Territory of Delhi... any decision taken or any event in the capital of the nation not only affects the residents of the national capital but also the rest of the country and at the same time has the potential of putting the national reputation, image, credibility and prestige at stake in the international global spectrum,” it added.

The ordinance also puts fetters on the Delhi ministers’ power to give standing instructions to bureaucrats, saying no such standing order shall be issued in contravention of the provisions of the Constitution or any other law for the time being in force including the Amendment Act.

“In case the Secretary to the Council of Ministers is of the opinion that the proposal considered and decided by the Council of Ministers is not in accordance with the provisions of the law for the time being in force or any rules of procedure made under section 44, it shall be the duty of the Secretary to the Council of Ministers to bring it to the notice of Lieutenant Governor for taking a decision thereon,” it added.