New Delhi | In a setback to the AAP government in Delhi, a two-judge bench of the Supreme Court on Thursday gave a split verdict on the contentious issue of who should control administrative services but appeared to agree that the Centre has the final word.
In view of the differences, Justices A K Sikri and Ashok Bhushan referred the matter to a larger bench of the apex court.
Delhi Chief Minister Arvind Kejriwal, whose Aam Aadmi Party has been accusing the Centre of appointing such officers who create hurdles in the works of the AAP government, termed the verdict as “unfortunate” and said it was ironic that a chief minister can’t have the power to appoint even a peon in his office.
The two judges, who were hearing pleas on six matters pertaining to a long-running conflict between the Narendra Modi government at the Centre and the AAP government in the national capital, gave a unanimous order on the remaining five issues.
Both judges agreed that the Lieutenant Governor (L-G) will have control over the Anti-Corruption Bureau, as already notified by the Centre, and the power to appoint inquiry commissions would also rest with the central government.
On the other hand, the elected Delhi government will have the right to appoint public prosecutors, to decide land revenue matters and also to appoint or deal with electricity commission or board, the bench ruled.
On the most contentious issue where the verdict was divided, Justice Bhushan ruled the Delhi government has no power at all over administrative services.
Justice Sikri, however, made a distinction by saying the transfer or posting of officers in top echelons of bureaucracy (joint director and above) can only be done by the central government and the view of L-G would prevail in case of difference of opinion for matters relating other bureaucrats.
He also suggested constituting a separate board for transfer and posting of Grade-3 and Grade-4 employees, like the one for IAS officer.
Justice Sikri said that to facilitate smooth governance in Delhi, transfer and posting of secretaries and Head of Departments can be done by L-G while in case of officer of DANICS (Delhi, Andaman and Nicobar Islands Civil Service) and DANIPS (Delhi, Andaman and Nicobar Islands Police Service), the files need to be sent from the council of ministers to the LG.
“In case of difference of opinion, the view of LG should prevail, Justice Sikri said.
Justice Sikri said that the transfer and posting of the officers from and above the rank of joint director can only be done by the central government as there was no law state public service commission or the cadre controlling authority with the Delhi government.
Justice Bhushan, however, differed with the opinion expressed by Justice Sikri and said that under the law, Delhi government has no power to exercise control over services. He upheld the views expressed by Delhi High Court with respect to these services.
The bench unanimously upheld the Centre’s notification that its employees cannot be probed in corruption cases by the ACB, which is part of the Delhi government but controlled by the L-G.
After the difference of opinion on the issue of control of services, the bench dictated the order and said the matter needs to be referred to a larger bench and views expressed by both the judges should be placed before the CJI for the constitution of an appropriate bench.
On October 4, last year, the Delhi government had told the apex court that it wanted its petitions relating to governance of the national capital be heard soon as it did not want “stalemate to continue in administration”.
The Delhi government had told the top court that it wanted to know where it stands with regard to the administration in view of the Constitution bench verdict of apex court on July 4, 2018
The five-judge bench had on July 4, last year laid down broad parameters for governance of the national capital, which has witnessed a power struggle between the Centre and the Delhi government since the AAP came to power in 2014.
In the landmark verdict, it had unanimously held that Delhi cannot be accorded the status of a state but clipped the powers of the L-G, saying he has no “independent decision making power” and has to act on the aid and advice of the elected government.
On September 19, last year, the Centre had told the apex court that administration of Delhi cannot be left to the Delhi government alone and emphasised that it has an “extraordinary” position by virtue of being the country’s capital.
The Centre had told court that a five-judge constitution bench of the apex court had categorically held that Delhi cannot be accorded the status of a state.
The Centre had contended that one of the basic issues was that whether the Government of National Capital Territory of Delhi (GNCTD) has the legislative and executive powers so far as ‘services’ were concerned.
“Delhi has an extraordinary position as it is the capital of the country,” it had said.
It said that the national capital houses several institutions of vital importance like Parliament and the Supreme Court and foreign diplomats also resides here.
Kejriwal had been at loggerheads with incumbent L-G Anil Baijal and his predecessor Najeeb Jung. Kejriwal had accused both of them of preventing the functioning of his government at the behest of the BJP-led central government.
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