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Synopsis

A Public Interest Litigation (PIL) has been filed before the Delhi High Court seeking direction to strike down the Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023.

The plea states that post the constitution bench judgment in State (NCT of Delhi) v. Union of India, decided on May 11, 2023, the Central Government on May 19 promulgated an ordinance the GNCTD (Amendment) Ordinance, 2023, to amend the Government of National Capital Territory (GNCT) Act, 1991 read with Article 239AA wherein Entry 41 of the State List (Services of the State and State Public Service Commission) was added. It had been added to the existing list of items (1, 2, 18) from the State List which stood excluded from the legislative power of the democratically elected government of the National Capital Territory of Delhi.

The PIL filed by Shrikant Prasad states that the Amendment to the ordinance has nullified the effect of the Supreme Court judgment and is causing unbearable losses to the public affairs and is unconstitutional as it is contrary to Articles 13, 14, 19, 21 and 239AA of the Constitution of India.

By the Amendment in Ordinance of 2023, the Lieutenant Governor (LG) of Delhi has been given overriding powers to act in discretion in cases of conflict of decisions with the committee headed by the Chief Minister of Delhi.

It also envisages creation of a National Capital Civil Services Authority headed by the Chief Minister of Delhi who shall make recommendations for transfers and postings of administrative officers in NCTD which shall be finalized by the Lieutenant Governor.

“Ministry of home affairs ,law and justice and president secretariat is likely to be affected by declaring the ordinance as unconstitutional and the basic structure of the constitution will be protected by this”, the plea states.

The petitioner states that the issue was as to who would have control over the services in the NCT of Delhi, and the same was resolved by the aforementioned Supreme Court judgment. In the 5-judge Constitutional Bench decision, it was held that the Delhi Government has administrative control over transfers and postings of civil servants in NCTD. Thus, NCTD has legislative and executive power with respect to “services” under Entry 41 excluding matters related to ‘public order', ‘police', and ‘land'.

“Thus this ordinance overrides this constitutional bench judgment”, the plea adds.

It further states that to nullify and stop the effect of judgment in letter and spirit, the Central Government promulgated an ordinance. “But because of enactment of ordinance, what it effectively doing is giving primacy to the Lieutenant Governor (an appointee of the Union Government) in transfer and postings of civil servants serving the Delhi Government”, it stated.

The PIL seeks court's directions on the following questions of law:

A. Whether an ordinance by central government may be promulgated merely to nullify and override with dishonest intention of the detailed reasoned judgment passed by the supreme court?

B. Whether the respondents are authorised to act beyond the constitution as a dictatorship?

C. Whether the effect of the judgment in letter and spirit may be stopped until the intervention of the supreme court in that judgment may be done.

D. Whether the ordinance passed in contrary to the judgment which itself arbitrarily illegal according to the constitution of India may be continued in effect by abusing the decision of the supreme court of India?

F. Whether the contempt action be not initiated against the respondents to disregard the judgment of the supreme court?

E. Whether the supreme court has no authority to safeguard the Constitution and the government is not bound to comply?

Case Title: Shrikant Prasad v. Union of India & Ors.