SC gives nod for six-month extension to Delhi chief secy
The move is a win for the Centre and a setback for the Union Territory’s elected Aam Aadmi government
The Union government has the power under the 2023 law on the administration of Delhi to unilaterally appoint the capital’s chief secretary, the Supreme Court held on Wednesday, declining to interfere with the Centre’s decision to give a six-month extension to incumbent chief secretary Naresh Kumar. Kumar who was otherwise set to demit office on November 30.
The move is a win for the Centre and a setback for the Union Territory’s elected Aam Aadmi government, which has been in a political and legal fight with the former over control of the city-state’s bureaucracy.
According to a bench led by Chief Justice of India Dhananjaya Y Chandrachud, since Delhi’s chief secretary exercises administrative control over various subjects, including land, public order and police that are outside the purview of the legislative or executive control of the Delhi government, the Centre’s decision to extend Kumar’s tenure without the elected government’s concurrence “cannot be construed to be violative of law”.
The bench, which also included justices JB Pardiwala and Manoj Misra, noted that the 2023 Government of National Capital Territory of Delhi (GNCTD) Act specifically vests control of all officers, who are serving in connection with excluded subjects (land, public order and police), with the central government.
“Therefore, it would not be possible nor practical to divide functions of chief secretary or bifurcate them between those areas which fall within the domain of GNCTD or those which fall outside, nor can such a bifurcation be attempted on numerical strength. It would be far-fetched to postulate that the central government is divested with the power to appoint the chief secretary,” held the bench.
To be sure, the top court clarified that its views were “prima facie” and were rendered in the facts of the present case because a challenge to a spate of provision under the 2023 Act relating to control of bureaucrats in the Capital and distribution of power between the elected government and the Centre was already pending before a constitution bench.
Pointing out that the 2023 Act has not been stayed by the court, it rejected the Delhi government’s argument that they must also have a say in the appointment of the chief secretary since the officer’s scope of administrative control spans more than a hundred subjects falling within the legislative and executive control of the elected government and that only three subjects (land, public order and police) remained outside its ambit.
Further, turning down the Aam Aadmi Party government’s contention that Kumar’s tenure could not be extended without its prior approval, the court noted that the position of Delhi is different from other states where any such extension would require aid and advice of the council of ministers.
“The position for GNCTD is different as chief secretary performs several executive functions not within the purview of the state government. Consequently, the restrictions which operate on ground as per the rules would not in a strict sense apply in relation to GNCTD. Such rules (on prior consultation) would apply in relation to the extension of service of such other officers whose power do not extend to excluded subjects,” it maintained.
The court order added: “The post of chief secretary in the GNCTD is a post entrusted with significant functional responsibilities including overall administrative control and supervision over subjects which also stand excluded from legislative domain and executive powers of the GNCTD...The decision of the Union government to extend the services of chief secretary for six months cannot be construed to be violative of law.”
In rejecting the Delhi government’s plea against any further extension to Kumar and demanding a consultative exercise for the appointment of the next chief secretary of the national capital territory (NCT), the bench lent credence to the submissions of solicitor general Tushar Mehta and senior advocate Sanjay Jain, who appeared for the Centre and the office of Delhi Lieutenant Governor respectively.
On Tuesday, the bench had asked the Centre if there was no other officer eligible or competent enough to take the reins from Kumar while asking the S-G to show the legislative power of the Centre for appointing the chief secretary and granting extension beyond superannuation.
Representing the Delhi government, senior counsel Abhishek Manu Singhvi on Wednesday proposed that the elected government was willing to pick the next chief secretary from a list of 10 officers to be proposed by the Centre and the Lieutenant Governor. But Mehta emphasised that there were no fetters in the exclusive decision-making powers of the central government in this regard nor was there any requirement of a consultation with the elected government under the 2023 Act.
The S-G argued that the L-G has an unfettered power to make a proposal to the Centre with regard to matters that fall outside the legislative and executive powers of the Delhi government, citing a provision in the 2023 Act which stated that “chief secretary” means the chief secretary appointed by the central government.
Responding, Singhvi argued that the above-mentioned provision is only a definition clause and that there is no operative or substantive provision giving such power to the Centre. The court, however, did not find favour with Singhvi’s contention.
It may not be necessary to enquire into whether it is a definition section or whether it contains a substantive power of appointment when the chief secretary is expected to have administrative control over matters which are not within the domain of the Delhi government, the court underlined.
The Arvind Kejriwal-government and Kumar have been locked in a long-running battle over matters relating to the administration of the NCT. Earlier this month Kejriwal wrote to LG VK Saxena recommending immediate removal of Kumar in an alleged corruption case involving land acquisition for Dwarka expressway. While Kumar denied the charges, the LG refused to act on the CM’s letter saying no evidence of Kumar’s complicity was brought to the fore.
The Delhi government’s petition in the top court challenged the “unilateral decision-making process” adopted by the Centre to appoint Delhi’s next chief secretary, a process which the Centre said is midway, even as it said that there must be a “degree of confidence in the elected arm of the state”.
The Delhi government’s separate challenge to a string of provisions under the 2023 Act that gave the Union government control of the national capital’s bureaucratic set-up is presently pending before a constitution bench.
The Delhi services ordinance, promulgated on May 19, was replaced by a bill which was passed by Parliament on August 8. Four days later, changes to the Government of National Capital Territory of Delhi (GNCTD) Act were codified into law, putting the control of the city’s administration in the hands of the Centre after the President accorded her assent to the law.
The ordinance was issued a week after a Supreme Court constitution bench ruled that the Delhi government has control over bureaucrats assigned to departments under its purview. Through the ordinance, the central government restored to itself the power over ‘services’ by making a raft of major amendments in the GNCTD Act, 1991. The ordinance also strengthened the position of the Lieutenant Governor, making him the final authority who can act in his “sole discretion” in deciding the matters relating to transfer and posting of bureaucrats.
The ordinance was challenged before the top court by the Delhi government on June 30, complaining it allows the Union government to take over the governance of the Capital while eroding not only the premise of democratic governance but also the regional will of Delhi’s electorate. The AAP government also demanded a stay on the ordinance, but the court refused to do so even as the challenge to the ordinance was referred to a constitution bench of five judges on July 20.