The Delhi government on Wednesday told the Supreme Court that the bureaucrats serving under it were not acting on its orders, and pleaded with the court for an early listing of its challenge to the Government of National Capital Territory of Delhi (Amendment) Act 2023 that vests in the lieutenant governor overriding powers on the transfers and postings of civil servants serving.

Following a mentioning by senior advocate Abhishek Manu Singhvi seeking an early listing of the Delhi government’s plea, Chief Justice D Y Chandrachud, heading a bench also comprising  Justice J B Pardiwala and Justice Manoj Misra, asked both the state government and the Centre to prepare a common compilation in the case in four weeks.

“Complete all the written submissions and make a common compilation in four weeks so that the matter is ripe for hearing. We will give liberty to mention it after that,” the bench said.

Making a mentioning for an early listing of the Delhi government’s challenge to the Government of NCT of Delhi (Amendment) Act 2023, senior advocate Singhvi told the bench, “There is an extraordinary urgency in this case. The civil servants are not following orders.”

The bench said it is currently occupied with constitution bench matters and the Delhi government’s plea will be listed for hearing.

Singhvi said the matter should have priority since the issue has to be set straight some way or other. “Since this matter will close interpretation this way or that way… The court can fit me in any Constitution bench in between…,” the senior advocate said.

Earlier on August 25, the Supreme Court had allowed the Kejriwal Government to amend its plea to challenge the Government of NCTD (Amendment) Act, 2023, in place of its earlier challenge to the May 19 ordinance stripping the Delhi government of its control over babudom and vesting in the lieutenant governor overriding powers in the transfer and posting of senior bureaucrats.

In the hearing of the matter on July 17, the top court indicated that challenge to the constitutional validity of the May 19, Government of National Capital Territory of Delhi (Amendment) Ordinance, 2023, now an Act, may be referred to a constitution bench.

On July 17, the court said that the issue, of whether the powers under Article 239AA(7)(a) of the constitution could be invoked to make the law of the present nature, was not considered by the earlier two constitution benches in 2018 and 2023.

Both the constitution benches in 2018 and 2023, dealt with the row between the Centre and the Delhi government over the governance of the national capital.

The 2018 five-judge constitution bench had not even considered the issues of control over services. It was later clarified that the question of control over babudom, including their transfer and posting, was not before the then five-judge bench for adjudication.

 “What they have done is that by using power under 239AA(7), they have amended the Constitution to take services out of Delhi government control. Is that permissible? I don’t think either of the Constitution bench judgments has covered that,” Chief Justice Chandrachud had said on July 17.

Article 239AA of the constitution is a special provision relating to Delhi and spells out a framework for the governance of the national capital. It vests police, law and order and land exclusively in the Central government and other subjects falling within the domain of Delhi government.

The May 19 ordinance was brought to reverse the May 11 top court constitution bench judgment that gave the Delhi government control over the services – their transfer, posting and accountability.

The ordinance, now an Act, under challenge, was promulgated on May 19 to overcome the Supreme Court’s five-judge constitution bench May 11 judgment that had ruled that the Delhi government would have control over all services and officers serving under it barring those dealing with public order, police and land, and Lt. Governor does not have all-encompassing supervision over the administration of the national capital and has to act on the aid and advice of the Council of Ministers.

Denuding the Delhi government of its authority, vested in it by the May 11 top court judgment, to post and transfer the senior ranking bureaucrats serving under it, the May 19 ordinance invested the control over babudom in the Lieutenant Governor.

Section 45A of the Ordinance, now a part of the Act, under challenge that provides for the setting up of the National Capital Civil Service Authority for the transfer, posting and other matters relating to senior babus, is recommendatory in nature and would make recommendations to Lieutenant Governor.

The chief minister of Delhi will be the chairperson of the authority with the chief secretary and the principal home secretary of the Delhi government as its member and the decisions will be taken by majority votes.

Seeking the quashing of the ordinance (now an Act) under challenge, the Delhi government has said that the Ordinance destroys the scheme of federal, Westminster-style democratic governance that is constitutionally guaranteed for the national capital territory of Delhi under Article 239AA.