SC Notice To Centre On Delhi Govt's Plea Challenging Services Ordinance

New Delhi: The Supreme Court on Monday issued notice to the Centre on a plea of the Delhi government challenging the constitutional validity of the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 issued by the Centre relating to control over bureaucrats. A bench of Chief Justice of India DY Chandrachud, Justices PS Narasimha sought a response from the Centre and posted the matter for hearing on July 17 to consider the prayer for a stay on the Ordinance. *It also asked Delhi government to make Lieutenant Governor party in the case.

Senior advocate Abhishek Manu Singhvi, appearing for the Delhi government, referred to provisions such as Section 45K of the Ordinance saying that they are giving overriding powers to the Lieutenant Governor (LG) and that the Ordinance was contrary to the pillars of the Supreme Court judgment.

Singhvi said Ordinance has reduced the role of the elected government and the Chief Minister and also referred to a recent decision taken by the LG to remove several consultants appointed by the government. Delhi Services Ordinance gives overriding powers to the Lieutenant Governor of Delhi to oversee the transfers and postings of civil servants in the national capital.

Approaching the apex court, the Aam Aadmi Party government said that the Centre's Ordinance is "unconstitutional". "The Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023 promulgated on May 19, 2023, which wrests control over civil servants serving in the Government of NCT of Delhi (GNCTD), from the GNCTD to the unelected Lieutenant Governor (LG). It does so without seeking to amend the Constitution of India, in particular Article 239AA of the Constitution, from which flows the substantive requirement that power and control in respect of Services be vested in the elected government," the petition said.

The impugned Ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA, added the plea. In the petition, Delhi government has urged the top court to pass appropriate direction to quash the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023.

The Centre had on May 19 promulgated the Ordinance to create an authority for the transfer and posting of IAS and DANICS officers in Delhi, with the Delhi government calling the move a circumvention of the Supreme Court verdict on control of services.

The Ordinance was brought to amend the Government of National Capital Territory of Delhi Act, 1991 and it circumvents the Supreme Court judgement in the Centre vs Delhi case.

*According to the petition, the impugned Ordinance is an unconstitutional exercise of executive fiat* that it violates the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA, manifestly arbitrary, legislatively overrules/reviews a Constitution bench judgement of the top Court dated May 11, 2023.

The ordinance, which came a week after the Supreme Court handed over the control of services in Delhi, excluding police, public order and land, to the elected government, seeks to set up a National Capital Civil Service Authority for the transfer of and disciplinary proceedings against Group-A officers.

On May 11, the Supreme Court ruled that the division of administrative powers between the Union and Delhi government "must be respected" and held that the Delhi government has "legislative and executive power over services" in the national capital, including the bureaucrats, except those relating to public order, police and land.

A five-judge Constitution bench of Chief Justice of India DY Chandrachud and Justices MR Shah, Justice Krishna Murari, Hima Kohli and PS Narasimha had said, "The division of administrative powers between the Union and the Government of the National Capital Territory of Delhi (NCTD) as explained... must be respected."

The apex court in its 105-page-judgement said that the government of Delhi is not similar to other Union Territories.