Amidst the ongoing power tussle between the Centre and Delhi government, the Supreme Court on Thursday gave a split verdict and referred the question of jurisdiction of public services in the Delhi administration to a larger bench. The court also ruled that the anti-corruption bureau will be under the control of the Union government, while other aspects like appointing special public prosecutors, making electricity reforms and revision rates for agricultural land would lie in the hands of the Aam Aadmi Party-led Delhi government.

Addressing a press conference on the verdict later in the day, Delhi Chief Minister Arvind Kejriwal said it was a “very unfortunate” ruling. “This is an injustice to Delhi’s residents,” he said. “An elected government does not have the power to transfer officers. How will such a government run? How will a project like mohalla clinics run? The judgment is against democracy.”

At the core of the tussle between the Union and Delhi governments is Article 239 AA of the Constitution, which gives Delhi the special character of a Union Territory with a Legislative Assembly that has a lieutenant governor as its administrative head.

The court delivered the ruling after it heard a batch of petitions that sought to clarify whether the Delhi government or the Centre had control over the state’s anti-corruption bureau, setting up inquiry commissions and transfers and postings of bureaucrats.

In July, a five-judge Constitution bench of the Supreme Court led by Chief Justice Dipak Misra stated that the lieutenant governor’s powers in the National Capital were only limited to land, police and public order.

In June, Kejriwal along with other Aam Aadmi Party ministers held a nine-day-long hunger strike at Lieutenant Governor Anil Baijal’s office, alleging that Indian Administration Service officers in Delhi had been on strike for four months, and sought Baijal’s intervention on the matter. The bureaucrats had denied they were on strike.

Jurisdiction over services

The five-judge Constitution bench said in July that the lieutenant governor of Delhi has to act on the aid and advice of the council of ministers on all matters except land, public order and police. Though holding that Delhi was not a state, the court said given its special character – it has a Legislative Assembly, which is provided directly by the Constitution – the executive powers of the Delhi government were co-extensive to its legislative powers. That is, the executive powers of the Delhi government will extend to all subjects on which the Delhi legislative Assembly has powers to make laws.

However, the Constitution bench only settled the question of constitutional principle on the powers of the Delhi government. It let another bench decide on specific matters, which came before the Supreme Court through appeals over orders issued by the Delhi High Court.

The Union government used this opportunity to ask questions on a fundamental principle yet again. It argued that though the Delhi government has powers to make laws on subjects under both the state list and the concurrent list, excluding land, public order and police, Parliament too had powers to make laws on all these subjects. Essentially, the Centre argued that legislative power on the various subjects was not exclusive to the Delhi Assembly.

The Delhi government opposed this view and said that the July judgement made it clear that apart from the three excluded subjects of land, police and public order, the power to make laws on other subjects was vested exclusively in the Delhi Assembly. This meant that the Delhi government will also have executive jurisdiction over the subjects except the excluded three. Therefore, public services, which is not an excluded subject, will fall under the Delhi government alone.

In his opinion, Justice AK Sikri agreed with the Delhi government’s position that as per the July judgement, the Delhi government had exclusive control over subjects excluding land, police and public order.

However, the problem with public services in the context of Delhi is that it does not have a public service commission. In that sense, “services” (or the bureaucracy) was outside the purview of the Delhi legislative Assembly.

The Union government argued that control over officers of the All India Services and other central services was available only to the state governments and not Delhi, which is a Union territory. In Delhi, the Centre said postings of officers of the rank of joint secretary and above will be under the exclusive control of the Centre, and files will be routed through the lieutenant governor directly. The Delhi government had no role in postings of these officers. For certain other categories, the Centre proposed that the posting files could be routed through the office of the chief minister, but the ultimate decision would be made by the lieutenant governor, who is appointed by the Centre.

Justice Sikri said:

“The transfers and postings of Secretaries, HODs and other officers in the scale of Joint Secretary to the Government of India and above can be done by the Lieutenant Governor and the file submitted to him directly. For other levels, including DANICS officers, the files can be routed through the Chief Minister to Lieutenant Governor. In case of difference of opinion between the Lieutenant Governor and the Chief Minister, the view of the Lieutenant Governor should prevail and the Ministry of Home Affairs can issue a suitable notification in this regard.”

This is the point on which the other judge disagreed and took a more stringent view. In his opinion, Justice Ashok Bhushan said that the Delhi government had absolutely no powers over services since the legislature had no control over this subject. Bhushan said:

“I having held that Entry 41 of List II of the Seventh Schedule of the Constitution [Services] is not available to the Legislative Assembly of GNCTD [Delhi], there is no occasion to exercise any Executive power with regard to “Services” by the GNCTD, since the Executive power of the GNCTD as per Article 239AA(4) extend in relation to matters with respect to which Legislative Assembly has power to make laws. With regard to “Services” GNCTD can exercise only those Executive powers, which can be exercised by it under any law framed by the Parliament or it may exercise those Executive powers, which have been delegated to it.”

This essentially means even though the question over services has been referred to a larger bench, the Delhi government, as per both the opinions, has no control over postings of officers of the rank of joint secretary and above and head of departments. This will be the exclusive jurisdiction of the Centre.

Proposed services commission

Given that the court has held that the Delhi Assembly has no jurisdiction over services, it is clear that the proposal of the Delhi government to constitute a services commission at the Union territory level stands derailed.

Presently, all bureaucrats assigned to Delhi are recruited from Delhi, Andaman and Nicobar Islands, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli Civil Service or DANICS.

In August, AAP MLA Saurabh Bhardwaj moved a resolution in the Delhi Assembly to constitute a services commission for Delhi to check “deficient delivery of services,” reported The Times of India. Bhardwaj claimed that there were a number of vacancies in various governing departments which needed to be filled.

However, the judgment has created more uncertainty on filling such vacancies. “The social welfare department is only 42% staffed now,” Delhi’s Minister of Social Welfare Rajendra Pal Gautam told Scroll.in. “Till we don’t have services under us, we will not be able to take forward the public service commission either.”

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