The Centre on Saturday moved the Supreme Court seeking a review of its May 11 judgment, wherein the court had ruled that it is ideal to hold that a democratically-elected Delhi government should have control over its officers, including IAS officers, and the Lieutenant Governor is bound by the advice of the elected government in everything other than public order, police, and land.
The development came a day after the Centre decided to promulgate an ordinance setting up a permanent authority known as the National Capital Civil Service Authority, comprising Delhi Chief Minister as its chairperson, the chief secretary, and the principal secretary (home), to make recommendations to the Delhi L-G regarding matters concerning transfer posting, vigilance and other incidental matters.
The ordinance said that in case of difference of opinion, the decision of the L-G shall be deemed final. Therefore, the ordinance was apparently brought in to negate the apex court’s judgment.
The review petition, filed by the Centre, said: “To the extent the said judgment holds that the ideal conclusion would be that GNCTD ought to have control over ‘services’, subject to exclusion of subjects which are out of its legislative domain as the ministers who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers would be anti-democratic is completely self-contradictory, in ignorance of the submissions made before the bench and further ex-facie an error apparent.”
The Centre said the apex court has itself held that the Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a).
“Despite holding the same, the said judgment ignores the clear exercise of power of the Parliament over the subject matter,” it said.
The review petition contended that the May 11 judgment suffers from an error apparent on the face of the record as it has not dealt with the arguments of the Union government that the Constitution has never contemplated a separate service cadre for Union Territories.
“This is for the simple reason that a Union Territory is a mere extension of the Union of India and persons working in Union Territories are working in services and posts in connection with the affairs of the Union government,” it said.
The review petition argued that the judgment suffers from an error apparent on the face of the record as it suffers from a fundamental fallacy inasmuch as it ignores that working and functioning of the capital government affects the nation as a whole.
“It is submitted that the said judgment further proceeds without appreciating that the nominee of the President, the L-G or the Central government, both are also manifestations of democracy when compared to the elected government of Delhi,” it said.
The plea submitted that the Central government is administered by the people of the entire country who have a vital and preponderant interest in the governance of the capital of the nation.
“The said judgment suffers from an error apparent on the face of the record as it wholly ignores that DANICS (Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and. Dadra and Nagar Haveli (Civil) Services) services are a feeder cadre for All India Services, namely Indian Administrative Service. The recruitment to all the Union Territories for these Group B posts is common and the selection is made through UPSC. They are also centralised and the appointing authority is the Ministry of Home Affairs,” said the review petition.
The plea contended that the need for review arises on account of the fact that the May 11 judgment neither deals with the conflict between the 2018 constitution bench judgment and the need for reference to a larger bench.
The Centre urged the apex court to permit it to place on record and address in open hearing, various grounds for review.
“Delhi, despite being a Union Territory, and thus not a full-fledged state, has been elevated to the status of a state, which is in the teeth of the nine-judge judgment in NDMC vs. State of Punjab (1997), wherein it was clearly held that notwithstanding the 69th Amendment introducing a legislative assembly for Delhi, the NCT of Delhi remains a Union Territory,” said the plea.
The Centre argued that the impugned judgment has the effect of destroying the basic structure of the Constitution, wherein with the effect of conjoint reading of Articles 73, 239AA and 246, the Union government has overriding legislative as well as executive powers in respect of a Union Territory which is not a ‘state’.
On May 11, a five-judge bench headed by Chief Justice of India D.Y. Chandrachud had said that a democratically-elected government should have control over its officers.
Noting the sui generis character of the National Capital Territory of Delhi (NCTD), the apex court had said that the Union government and the NCTD shared a unique federal relationship and it did not mean that NCTD is subsumed in the unit of the Union government merely because it is not a ‘state’.