NEW DELHI: After an extensive hearing of almost five days, the five-judge constitution bench of the Supreme Court on Wednesday reserved verdict in the case involving a dispute between the Centre and the Government of National Capital Territory of Delhi (GNCTD) over power and transfer of bureaucrats serving GNCTD.
The Aam Aadmi Party-led Delhi government sought from the apex court a clear "demarcation" of its power in the row with the Centre over control of services.
Although the bench comprising CJI DY Chandrachud, Justices MR Shah, Krishna Murari, PS Narasimha and Hima Kohli reserved orders the bench during the hearing was taken aback on centre seeking reference of the issue to a larger bench in view of SCs 2018 verdict at the fag end of the hearing.
The apex court in 2018 had unanimously ruled that LG should act as per aid and advise of the Council of Ministers in respect of the matters over which the Delhi Govt has executive and legislative powers to a larger bench.
Urging the bench to refer the issue to a larger bench, Solicitor General Tushar Mehta said, “I’ve already filed an application seeking reference. Contours of federalism b/w union and UTs require relook. We’re dealing with capital of nation. We are on future course of action. We don’t want to be remembered in history for handing over the capital to complete anarch.”
Objecting to the centre’s request, Senior Advocate AM Singhvi for the Kejriwal government said that the matter had come up so many times but the prayer for reference was not even mentioned. He termed centre’s request for seeking reference as a “dilatory tactic.” “No reason has been given for reference. We can’t repeat this capital like mantra every time. It’s capital but capital with legislature. It’ll be very unprecedented,” Singhvi further added.
In his rejoinder, Singhvi argued that a picture was being presented before SC that “someone is hijacking the capital.” Senior counsel also said that centre was seeking to obliterate the diff b/w centre & Parliament. “Centre seems to give itself an executive override over the assembly of GNCTD by way of the impugned notifications. What he says is creating discordance. The problem is the other side is equating Parliament with the central government. Parliament can make any law but here it is an executive notification on services,” he argued.
Appearing for the centre, SG Tushar Mehta argued that not only Union Territory is merely an extension of the Union but also that employees working in Union Territories are working in connection with the affairs of the Union. SG Mehta had also contended governance of the capital, irrespective of the change in legislative or constitutional regime, needed special attention and the capital could not be equated with an independent unit of the Union of India applying principles of federalism.
The dispute had arisen after a 2 judge bench in 2019 had delivered a split verdict and upheld Centre’s notification dated July 23, 2014 and May 21, 2015 that had the effect of excluding jurisdiction of Delhi Government’s Anti-Corruption bench from probing offences committed by central government employees, limiting it to employees of Delhi Government.
While Justice Ashok Bhushan (now retired) had ruled that the Delhi Government had no power at all over the administrative services, Justice AK Sikri (now retired) had said that the transfer or postings of the officer in top echelons of the bureaucracy (joint director and above) could only be done by the Central government and LG’s view would prevail in case of difference of opinion for matters relating to other bureaucrats.
In May, a three-judge bench led by then CJI NV Ramana had referred to a five-judge bench of questions related to the dispute between central and state governments for an “authoritative pronouncement.”
The bench had said that the earlier constitution bench which interpreted Article 239AA which gives special status to Delhi required a further examination on the limited question pertaining to the scope of the executive and legislative powers of NCT Delhi with respect to services.