A day after issuing an ordinance to overturn the top court’s constitution bench judgment that had ruled that the Delhi government has “legislative and executive power over services” and Lieutenant Governor will act on the aid and advice of the Council of Ministers, the Central government on Saturday approached the Supreme Court seeking the review of its May 11 Constitution bench judgement that had said that a democratically elected Delhi government will have control over the transfer and posting of the senior bureaucrats serving under it and they (babus) are accountable to it (government of NCT)).
“The Centre has filed a review of the May 11 judgement,” said a lawyer representing the Centre.
The Centre on Friday – May 19 – brought an ordinance to create a National Capital Civil Service Authority (NCCSA) – headed by the Chief Minister of Delhi with Chief Secretary and Principal Home Secretary of Delhi being its two other members – to recommend the transfer and posting of all Group A and DANICS officers serving in Delhi.
The ordinance promulgated by the President Droupadi Murmu says that all matters before the Authority shall be decided by majority of the members present and voting and in case of difference of opinion, final decision will rest with the Lieutenant Governor. The ordinance amends the Government of National Capital Territory (NCT) of Delhi Act, 1991 and effectively annuls the constitution bench judgment.
The National Capital Civil Service Authority under the ordinance has just the recommendatory powers, the real power is vested in the Lieutenant Governor who, designated as an administrator of national capital, will have the final say on the postings and transfer of all the bureaucrats serving the Delhi government.
This provision of the ordinance effectively neutralises the constitution bench ruling which said that the Lieutenant Governor does not have an all-encompassing supervision over the administration of the national capita and his administrative power is limited to the powers entrusted by the president and the same cannot mean to include the whole of administration over the NCTD.
Restricting the administrative powers of the Lieutenant Governor to the officers dealing with public order, police and land, the constitution bench had said, “Otherwise, the purpose of having a separate elected body in Delhi will be rendered futile.”
The constitution bench headed by Chief Justice DY Chandrachud and comprising Justice MR Shah (since retired), Justice Krishna Murari, Justice Hima Kohli and Justice Pamidighantam Sri Narasimha had said that though not a full-fledged State, Delhi government is empowered to legislate on matters within its domain and the Centre too has enough powers to protect its own interests. However, the constitution bench had stated that the Union government cannot take over the governance of the NCTD.
“The division of administrative powers between the Union and the NCTD as explained… must be respected,” the constitution bench had ruled.
Referring to Article 239AA under which Delhi was granted status of a State and top court’s 2018 judgment, the constitution bench had said that the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of Delhi government in relation to matters within the legislative and executive scope of Delhi.