Delhi Power Tussle: Centre Brings Ordinance On Transfers, Days After SC Order In Kejriwal Govt Favour

Amid the tussle over control of 'services' in Delhi, BJP government has brough an ordinance to amend the Government of National Capital Territory of Delhi Act, 1991 and it circumvents the SC judgement in the Centre vs Delhi case.

New Delhi: The Union government on Friday brought an ordinance to notify rules for the Government of National Capital Territory of Delhi (GNCTD) regarding the 'transfer posting, vigilance and other incidental matters'. The ordinance has been brought to amend the Government of National Capital Territory of Delhi Act, 1991 and it circumvents the SC judgement in the Centre vs Delhi case. The Ministry of Law and Justice stated in the notification, "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 (hereinafter referred to as GNCTD)".

An ordinance has been passed by the Centre to constitute 'National Capital Civil Services Authority' in Delhi. This comprises Delhi CM, Chief Secretary and Home Secretary of Delhi government. They will now decide on the transfer and posting of Group 'A' officers and DANICS officers serving in Delhi government.

"With a view to give effect to the intent and purpose behind the provisions of Article 239AA, a permanent authority headed by the democratically elected Chief Minister of Delhi along with Chief Secretary, GNCTD the head of the administration representing the will of the officers of GNCTD and the Principal Secretary Home, GNCTD is being introduced to make recommendations to the Lieutenant Governor regarding matters concerning transfer posting, vigilance and other incidental matters," the notification stated.

It added, "This would statutorily balance the interest of the nation with the interest of Union Territory of Delhi in the 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 Ministry further notified that in case of "difference of opinion" between the Lieutenant Governor and the Delhi government, the decision of the LG shall be "final".

"The Lieutenant Governor, after the receipt of such recommendation under sub-section (1) or sub-section (2) of this section, may pass appropriate orders giving effect to the recommendation made: Provided that the Lieutenant Governor, before passing appropriate orders on such recommendation, may ask for any relevant material regarding the Group 'A' officers, including the officers of the All India Services and DANICS, serving in the affairs of the Government of National Capital Territory of Delhi," the notification stated.

It added, "Provided further that in case the Lieutenant Governor differs with the recommendation made, whether based upon the material so called for or otherwise, the Lieutenant Governor may, for reasons to be recorded in writing, return the recommendation to the Authority for reconsideration by the Authority: Provided also that in case of difference of opinion, the decision of the Lieutenant Governor shall be final".

Notably, this comes days after a Constitution bench of the Supreme Court, in an unanimous verdict, said that the Delhi government must have control over services, and the Lieutenant Governor is bound by its decision. The court said that the Delhi government similar to other States represents the representative form of government and any further expansion of the Union's power will be contrary to the Constitutional scheme.

Earlier in the day, Delhi CM Arvind Kejriwal had expressed apprehension that the central government might bring an ordinance to "overturn or reverse" the SC ruling. Speaking to reporters after meeting LG VK Saxena on Friday, "Met L-G VK Saxena. He said that he will send approval for the appointment of the Services Secretary. I hope he does that soon. It is being heard from the media that the central government is bringing an ordinance to overturn or reverse the order of the Supreme Court".

The CM added, "I hope it is a rumour because if it happens, it will be a betrayal of the people of Delhi and the country. This is the order of the Constitutional Bench of the Supreme Court. At least the government should follow that". Supreme Court held that if administrative services are excluded from the legislative and executive domains, the ministers would be excluded from controlling the civil servants who are to implement the executive decisions.

It said that states too have the power but the executive power of the State will be subject to the existing law of the Union. It has to be ensured that the governance of States is not taken over by the Union. Supreme Court said in a democratic form of government, the real power of administration must rest with the elected government.

If a democratically elected government is not given the power to control the officers, the principle of the triple chain of accountability will be redundant. It said if the officers stop reporting to the ministers or do not abide by their directions, the principle of collective responsibility isaffected.

A five-judge Constitution bench of CJI DY Chandrachud and Justices MR Shah, Krishna Murari, Hima Kohli and PS Narasimha pronounced the judgment on May 11. The five-judge bench had reserved its judgment on January 18 this year.

Governance of the national capital has witnessed a power struggle between the Centre and the Delhi government since the Aam Aadmi Party (AAP) came to power in 2014. The case was posted before a Constitution bench after a three-judge bench had in May 2021 decided to send it to a larger bench on a request by the Central gov