Constitution of India – Article 239AA(3)(a); VIIth Schedule, State List, Entry 41 – Government of National Capital Territory of Delhi Act 1991 as amended by the Government of National Capital Territory of Delhi (Amendment) Act 2023 – Writ petition filed by Government of NCTD stating that they have reason to believe that the Union of India will unilaterally appoint the Chief Secretary in the exercise of the power u/s. 41 r/w s.45A(d) r/w s.45H(2), 1991 Act as amended by the 2023 (Amendment) Act – 2023 Constitution Bench judgment (Govt. of NCT of Delhi vs. Union of India) had dealt with control over “services” pertaining to the National Capital Territory of Delhi – Constitutional validity of the provisions of the 2023 Amendment Act pending adjudication before the Constitution Bench, no stay on the operation of the amendment Act – Prima facie view taken: Held: Though the Government of NCTD is the appointing authority for all posts in NCTD in terms of the 1954 Rules, the Transaction of Business Rules places the appointments to the posts of Chief Secretary and Commissioners of Police, Secretary (Home) and Secretary (Lands) outside the competence of the GNCTD – Unlike other States, the GNCTD only has the power to propose a candidate for the appointment as the Chief Secretary – The Lieutenant Governor is bound to refer the proposal to the Central Government and the decision of the Central Government on the proposal is final – There can be no dispute about the basic position that the Chief Secretary, as the head of the administration, exercises jurisdiction of an administrative nature over the entirety of subjects which fall within the domain of the executive functions of GNCTD which would include those subjects (Entries 1, 2 and 18 of List II) over which the Legislative Assembly and the State Government do not have jurisdiction – Once it emerges that the Chief Secretary performs important functions, among other things, in relation to the excluded subjects as well, it would be farfetched to postulate that the Central Government is divested of the power to appoint the Chief Secretary – Further, r.16 of the 1958 Rules is a general rule which is applicable to members of the service holding the post of Chief Secretary across all States – The provision does not make a distinction between the Chief Secretary serving in NCTD and the Chief Secretaries serving in other States though the procedure for the appointment of the Chief Secretary of NCTD is different from the procedure for the appointment of Chief Secretaries in other States in terms of the 1954 Rules read with the Transaction of Business Rules – The position of the Chief Secretary of the GNCTD is significantly distinct in that the Chief Secretary performs delegated executive functions which straddle both subjects which fall within the executive and legislative competence of GNCTD as well as those which lie outside – Consequently, the restrictions which operate in relation to the grant of extension u/r.16 of the 1958 Rules in relation to the Chief Secretary of one of the State Governments would not stricto senso apply in relation to the GNCTD – At this stage, in view of the principles enumerated in the judgment of this Court in 2023 Constitution Bench judgment, and the subsequent developments which have taken place resulting in the enactment of the amendment to the GNCTD Act 1991, the decision of the Union Government to extend the services of the incumbent Chief Secretary for a period of six months cannot be construed to be violative of law – Transaction of Business of the Government of National Capital Territory of Delhi Rules 1993 – r.55(2)
(b) – Indian Administrative Service (Cadre) Rules 1954 – All India Services (Death-cum-Retirement Benefits) Rules 1958 – Schedule to the & ORS.
Indian Administrative Service (Fixation of Cadre Strength) Regulations 1955. [Paras 17, 24-26, 32, 33]
LIST OF CITATIONS AND OTHER REFERENCES
State (NCT of Delhi) Vs Union of India,(2018) 8 SCC 501: [2018]
7 SCR 1; Govt. of NCT of Delhi Vs Union of India, (2023) 9 SCC 1; E.P. Royappa v. State of Tamil Nadu & Anr., (1974) (4) SCC 3: [1974] 2 SCR
348 – referred to.
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As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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