SC split on control over services

Satya Prakash

Tribune News Service

New Delhi, February 14

The tussle between the Delhi Lt Governor and elected AAP government remained unresolved today as the Supreme Court delivered a split verdict on the key issue of control of administrative services.

A Bench of Justices AK Sikri and Ashok Bhushan had different views as to who had powers to appoint and transfer officers of State Public Services under Entry 41, List II of the Constitution. In view of the split verdict, the issue of “services” has been referred to a larger Bench.

The two judges, however, were unanimous in their findings on disputes pertaining to the anti-corruption branch (ACB), appointment of commission of inquiry, control over electricity boards, land revenue matters and appointment of public prosecutors.

The Arvind Kejriwal-led AAP government has been at loggerheads with L-G Anil Baijal and his predecessor Najeeb Jung, accusing them of creating obstructions in its functioning at Centre’s behest.

Maintaining that the split verdict was against the “Constitution and democracy”, Kejriwal said his government would seek legal remedies.

But the BJP welcomed it, saying it was a “lesson for Kejriwal, an urban Naxal, who always tried to cross boundaries by adopting unconstitutional means”.

This is the second verdict of the top court on the power tussle between the Delhi L-G — appointed by the Centre — and the elected AAP government.

In July last year, the Supreme Court had ruled that Delhi L-G did not have independent decision-making powers.

A five-judge Constitution Bench had said the L-G was generally bound to act on the aid and advice of the Council of Ministers, except on three subjects reserved for him or where he differs with the decision of the elected National Capital Territory (NCT) government and chooses to refer an issue to the President. All decisions of the NCT Council of Ministers have to be communicated to the L-G. However, such communication does not mean L-G’s concurrence is required, it had said.

Today, Justice Sikri ruled that transfers and posting of officers of and above the rank of Joint Secretary were under the powers of L-G, but rest of officers would be under the control of the elected Government of Delhi.

Justice Sikri suggested setting up a separate board for transfer/posting of Grade 3 and Grade 4 employees, like the one for IAS officers.

To facilitate smooth governance in Delhi, transfer and posting of secretaries and Head of Departments can be done by the 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 L-G.

“In case of difference of opinion, the view of L-G should prevail,” he observed.

Justice Bhushan, however, disagreed and ruled that “services” were totally outside the purview of Delhi Government.

The Bench upheld the Centre’s notification that said its employees cannot be probed in corruption cases by the ACB, which is part of the Delhi Government but controlled by the L-G. The Bench unanimously said it was under the Centre.

The court said the Delhi Government, and not the L-G, would have the right to appoint public prosecutors and law officers.

It made it clear that the Centre was the competent authority under the Commission of Inquiry Act and the Delhi Government had no powers to appoint a Commission of Inquiry.

The top court also ruled that electricity board was under the Delhi Government as it was the appropriate government under the Electricity Act.

Similarly, on the issue of powers to appoint public prosecutors, the Bench ruled in favour of the Delhi Government.

The tussle for power between AAP Government and L-G as the Centre’s representative is because of Delhi’s unique position as a Union Territory with an elected government, which doesn’t enjoy much power over important agencies. The elected government does not have control over issues relating to public order, police and land.

Box

Bench unanimous on five issues

* Delhi Govt’s ACB can’t probe Central staff for graft, power rests with Centre

* Centre can appoint inquiry commissions, not Delhi Govt

* Delhi Govt has power to appoint public prosecutors

* Delhi Govt can appoint/deal with electricity commission/board

* Delhi Govt can decide land revenue matters

Bq

Against Constitution: Kejri

“The judgment is against the Constitution and democracy. We will seek legal remedies… it is an injustice to the people who elected a government by giving 67 of the 70 seats (to a party)”

— Arvind Kejriwal, delhi cm