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Synopsis

The Supreme Court today refused to grant interim stay on the Government of National Capital Territory of Delhi (Amendment) Ordinance 2023 which "wrested" control over civil servants serving in the Government of NCT of Delhi from the Delhi government and "vested it to the unelected Lieutenant Governor".

While the bench issued notice on the plea, it said that it would hear the interim prayers for stay on July 17 and asked for the Centre's response to the same.

CJI DY Chandrachud also agreed to hear the GNCTD's prayer seeking stay on the Lieutenant Governor's decision to nullify the appointment of over 400 consultants employed by the Delhi Assembly.

"We will issue notice. We grant permission to implead the Delhi LG. The counter affidavit be filed within a period of two weeks", the bench also comprising Justice Narasimha ordered.

Last week, the Supreme Court had agreed to hear the Delhi government's writ petition challenging the constitutionality of the Ordinance after Senior Advocate AM Singhvi had mentioned the same before a bench of CJI Chandrachud, Justice PS Narasimha and Justice Manoj Mishra.

CJI had then further questioned Singhvi if the plea could be heard with another plea challenging the decision of Delhi 's Lieutenant Governor VK Saxena to appoint retired Justice Umesh Kumar as chairman of the Delhi Electricity Regulatory Commission (DERC).

The AAP government claimed that the Ordinance is an unconstitutional exercise of executive fiat, which violated the scheme of federal, democratic governance entrenched for the NCTD in Article 239AA.  It also contended that the Ordinance legislatively overruled a Constitution Bench judgement of the Supreme Court passed on May 11, 2023.

The NCT government also stated that the Ordinance is manifestly arbitrary, and is an impermissible and unconstitutional abuse of Ordinance making powers under Article 123 of the Constitution. 

The Ordinance overruled the Constitution bench judgement without "altering its basis, which was that accountability of civil servants to the elected arm of the government, and the elected government’s control over the civil service, is a substantive mandate of the model of governance envisaged by the Constitution, including for the NCT of Delhi under Article 239AA", the plea stated.

On May 11, a five-judge constitution bench of the Supreme Court held that it is ideal to hold that a democratically elected Delhi government should have control over its officers and the LG is bound by the advice of the elected government, except in matters of public order, police, and land. It had also said that if the government is not able to control and hold to account the officers posted in its service, then its responsibility towards the legislature as well as the public is diluted. 

On May 19, the Centre, however, promulgated the Ordinance setting up a permanent authority known as the National Capital Civil Service Authority, with Delhi chief minister as its chairman along with chief secretary, Delhi, Principal Secretary (Home), Delhi to make recommendations to the Delhi LG regarding matters concerning transfer posting, vigilance and other incidental matters. However, in case of difference of opinion, the decision of the LG shall be final.  

Questioning the validity of the move, the Delhi government contended that the Ordinance destroyed the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for NCTD in Article 239AA, a sui generis provision incorporated to fulfill the popular, regional, and democratic aspirations of the people of Delhi. 

"The Ordinance, thus, completely sidelines the elected Government, i.e. the GNCTD, from control over its civil service. This was first attempted in 2015, vide MHA Notification No. SO 1368 (E), the basis of which has already been declared unconstitutional in the 2023 Constitution Bench judgement of this Court," it claimed. 

It is to be noted that on May 20, the Centre had filed a review petition in the Supreme Court against May 11 judgment.

The AAP government, in its plea, also said, "The Ordinance clearly seeks to revert the situation to what the 2015 Notification had sought to install, in complete disregard for this Court’s authoritative view. Though the impugned Ordinance feigns a degree of democratic involvement by making stray references to the Chief Minister, it in fact relegates the Chief Minister to being a minority-voice even in the Authority tasked with making nonbinding ‘recommendations’". 

The Delhi government also claimed that the Ordinance showed contempt for elected assembly and elected government while making a pretense of their involvement through the Chief Minister.