NEW DELHI: The Supreme Court on Thursday finally put quietus to the long-standing power spat between Arvind Kejriwal govt and central government on the issue of power and transfer of bureaucrats serving the GNCTD (Delhi government) belong to All India Services by unanimously ruling that the control over bureaucrats lies with GNCTD except police, public order and land.
“If democratically elected govt are not provided the power to contour over the officers then the power of collective responsibility will be dilute. If the officers stop reporting to the ministers then the effect of collective responsibility will be effected. If "services" are excluded from legislative and executive domain, the Ministers would be excluded from controlling the civil servants who are to implement the executive decisions. If "services" are excluded from legislative and executive domain, the Ministers would be excluded from controlling the civil servants who are to implement the executive decisions. NCTD similar to other states represents the representative form of Government. Any further expansion of Union's power will be contrary to Constitutional scheme. NCTD has legislative power over "Services" excluding public order, police and land.” CJI DY Chandrachud said while pronouncing the verdict also on behalf of Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha.
The court was of the view that it does not agree with the view of Justice Bhushan 2019 verdict that the Delhi government has no power at all over administrative services.
The Aam Aadmi Party-led Delhi government had sought from the apex court a clear "demarcation" of its power in the row with the Centre over control of officers of various services such as IAS, IPS, DANICS, and DANIPS, who have been allocated to Delhi by the Union of India. The verdict was reserved by the five-judge bench in March.
The dispute over controlling the Capital’s bureaucracy had arisen after a split verdict which was delivered by a two-judge bench in 2019 while upholding Centre’s notification dated July 23, 2014, and May 21, 2015, that had the effect of excluding the jurisdiction of Delhi Government’s Anti-Corruption bench from probing offences committed by central government employees, limiting it to employees of Delhi Government.
Justice Bhushan had ruled the Delhi government had no power at all over administrative services. Justice Sikri, however, made a distinction. He said the transfer or posting of officers in top echelons of the bureaucracy (joint director and above) can only be done by the Central government (LG) and other officers are under the control of Delhi Govt. He was of the view that LG’s view would prevail in case of a difference of opinion on matters relating to other bureaucrats.
Pursuant to the split, the matter was heard by a three judge bench headed by ex CJI NV Ramana. Noting that the constitution bench in its 2018 verdict had not dealt elaborately on the issue of “control over services”, 3 judge bench had asked five judge bench to make an “authoritative pronouncement” on this issue.
“The limited issue that has been referred to this Bench relates to the scope of legislative and executive powers of the Centre and NCT Delhi with respect to the term services. The Constitution bench of this court, while interpreting Article 239AA(3)(a) of the Constitution, did not find any occasion to specifically interpret the impact of the wordings of the same with respect to Entry 41 in the State List. We, therefore, deem it appropriate to refer to the above-limited question, for an authoritative pronouncement by a Constitution Bench,” it had said.
Kejriwal Govt had argued that it would not be possible for the govt to function if it does not have control over services as the exclusion of civil servants will negate governance. AAP Govt also argued that the power of creating and managing civil services and posts, appointing persons, transferring persons, and allocating persons to such posts was essential for a functioning Government and to ensure democratic accountability.
It was also argued that Article 239AA granted the Legislative Assembly of Delhi significant executive powers to make laws on matters within its legislative competence and the Jat it was to provide Delhi with a representative form of government, allowing the elected government to exercise executive powers over a range of subjects. The central government had argued that its control over Delhi was not only desirable but also constitutionally permitted. Centre had also argued that LG's role should not be restricted to mere concurrence and should include the power to review and approve decisions taken by the elected government.