Government of NCT of Delhi vs Union of India

41 of the State List – NCTD has legislative and executive power with respect to “services” under Entry 41 – The legislative and executive power of control of NCTD over Entry 41 shall not extend over to services related to “public order”, “police”, and “land” – However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD – Officers thereunder may be serving in NCTD, even if they were not recruited by NCTD – The Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD – As NCTD has legislative power over “services” (excluding ‘public order’, ‘police’, and ‘land’) under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of GNCTD on services – Any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD. Constitution of India: Article 239AA, 239AA(3(b)) & 239AA(7) – Interpretation of phrase “insofar as such matter is applicable to Union Territories” in Art.239AA – Held: The intent and purpose of Article 239AA(3(b)) and Article 239AA(7) is to confer an expanded legislative competence upon Parliament, when it comes to Government of National Capital Territory of Delhi (GNCTD) clearly since it is the capital of the country and therefore, must be dealt with different considerations – To interpret the phrase “insofar as any such matter is applicable to Union territories” in a restrictive manner would limit the legislative power of the elected members of the assembly – Thus, the legislative competence of National Capital Territory of Delhi (NCTD) must be interpreted to give full impetus to the will of the electorate – The executive power of NCTD is coextensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate – The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded – Union Territories – NCT of Delhi.

Constitution of India – Art. 239AA – Phrase “Subject to the provisions of this Constitution” in Article 239AA(3) – Held: With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), the legislative power of National Capital Territory of Delhi (NCTD) is to be guided, and not just limited, by the broader principles and provisions of the Constitution.

Constitution of India – Federalism and Democracy – Cooperative Federalism – Held: Our model of federalism expects a sense of cooperation between the Union at the centre, and the regional constitutionally recognised democratic units – The Union and National Capital Territory of Delhi (NCTD) need to cooperate in a similar manner to the Union and the States – The interpretation of the Constitution must enhance the spirit of federalism and democracy together – In the spirit of cooperative federalism, the Union of India must exercise its powers within the boundaries created by the Constitution – NCTD, having a sui generis federal model, must be allowed to function in the domain charted for it by the Constitution – The Union and NCTD share a unique federal relationship – It does not mean that NCTD is subsumed in the unit of the Union merely because it is not a “State”. Constitution of India – Interpretation – Held: The design of the Constitution is such that it accommodates the interests of different regions – While providing a larger constitutional umbrella to different states and Union territories, it preserves the local aspirations of different regions – “Unity in diversity” is not only used in common parlance, but is also embedded in our constitutional structure – The interpretation of the Constitution must give substantive weight to the underlying principles. Constitution of India: Part XIV – Arts. 308 & 367 – General Clause Act, 1897 – s.3(58) – Inclusion of Union Territory – In the Definition of State – Whether Union Territory is a State for the Purpose of Part XIV of Constitution of India – Held: s.3(58) of the General Clauses Act, by virtue of Art.367(1) of the Constitution, applies to the construction of the expression ‘State’ in the Constitution, unless there is something repugnant in the subject or context of a particular provision of the Constitution – There is nothing in the subject or context of Part XIV of the Constitution which would exclude its application to Union territories – Rather, the application of the inclusive definition of “State” as provided under Clause 3(58) would render the constitutional scheme envisaged for Union Territories workable.

Union Territories – There does not exist a homogeneous class of Union Territories with similar governance structures.

Union Territories – Constitution of India – Art. 239AA – National Capital Territory of Delhi (NCTD) – Held: Is not similar to other Union Territories – By virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other Union Territories – The Legislative Assembly of NCTD has competence over entries in List II and List III except for the expressly excluded entries of List II – In addition to the Entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a). Union Territories – National Capital Territory of Delhi (NCTD) – Executive power of NCTD – Held: The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate – The Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence – The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament.

Union Territories – National Capital Territory of Delhi (NCTD) – Legislative and executive power over “Services” – Held: NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because: (i) The definition of State under Section 3(58) of the General Clauses Act 1897 applies to the term “State” in Part XIV of the Constitution – Thus, Part XIV is applicable to Union territories; and (ii) The exercise of rulemaking power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List – Constitution of India – Art. 309 and Seventh Schedule, List II, Entry 41.

Answering the reference, the Court

HELD: 1.1 The legislative and executive power of NCTD over Entry 41 shall not extend over to services related to “public order”, “police”, and “land”. However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD. Officers thereunder may be serving in NCTD, even if they were not recruited by NCTD. In such a scenario, it would be relevant to refer, as an example, to some of the Rules, which clearly demarcate the control of All India or Joint-Cadre services between the Union and the States. NCTD, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance. [Para 160][579-H; 580-A-C]

1.2 The example of the Indian Administrative Service (Cadre) Rules, 1954, which deal with the posting of IAS Officers. Rule 2(a) defines ‘cadre officer’ to mean a member of IAS. Rule 2(b) defines ‘Cadre post’ as any post specified under item I of each cadre in the schedule to the Indian Administrative Service (Fixation of Cadre Strength) Regulations, 1955. Rule 2(c) defines ‘State’ to mean a State specified in the First Schedule of the Constitution and includes a Union Territory. Rule 2(d) defines ‘State Government concerned’, in relation to a Joint cadre, to mean the Joint Cadre Authority. The constitution and composition of a ‘Joint Cadre Authority’ is understood with reference to the All India Services (Joint Cadre) Rules 1972. The 1972 Rules apply to a “Joint Cadre constituted for any group of States other than the Joint Cadre of Union Territories.” Rule 3 of the IAS (Cadre) Rules 1954 provides for the constitution of cadres for each State or group of States “as a ‘State Cadre’ or, as the case may be, a ‘Joint Cadre’”. Rule 5 empowers the Central Government to allocate cadre officers to various cadres. In terms of Rule 5(1), the allocation of cadre officers to the various cadres shall be made by the Central Government in consultation with the State Government or the State Government concerned. Rule

7 stipulates that all appointments to cadre posts shall be made “on the recommendation of the Civil Services Board” — by the State Government “in the case of a state cadre”, and by the State Government concerned, as defined in Rule 2(d), “in the case of a joint cadre”. Under Rule 11A, the “Government of that State” is provided with powers to take decisions under Rule 7 (and other mentioned rules) in relation to the members of the Joint Cadre Service “serving in connection with the affairs of any of the Constituent States”. A combined reading of Rules 2, 7, and 11A indicates that the postings within the State Cadre as well as Joint Cadre of a Constituent State shall be made by the “Government of that State”, that is, by the duly elected government. In our case, it shall be the Government of NCTD. It is accordingly held that references to “State Government” in relevant Rules of All India Services or Joint Cadre Services, of which NCTD is a part or which are in relation to NCTD, shall mean the Government of NCTD. [Para 161][580-C-H; 581-A-B]

1.3 In light of Article 239AA and the 2018 Constitution Bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD. As NCTD has legislative power over “services” (excluding ‘public order’, ‘police’, and ‘land’) under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of GNCTD on services. To clarify, any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD. [Para 162][581-C-D]

2. In view of the discussion above, the conclusions are as follows: (a) There does not exist a homogeneous class of Union Territories with similar governance structures; (b) NCTD is not similar to other Union Territories. By virtue of Article 239AA, NCTD is accorded a “sui generis” status, setting it apart from other Union Territories; (c) The Legislative Assembly of NCTD has competence over entries in List II and List III except for the expressly excluded entries of List II. In addition to the Entries in List I, Parliament has legislative competence over all matters in List II and List III in relation to NCTD, including the entries which have been kept out of the legislative domain of NCTD by virtue of Article 239AA(3)(a); (d) The executive power of NCTD is co-extensive with its legislative power, that is, it shall extend to all matters with respect to which it has the power to legislate;

(e) The Union of India has executive power only over the three entries in List II over which NCTD does not have legislative competence; (f) The executive power of NCTD with respect to entries in List II and List III shall be subject to the executive power expressly conferred upon the Union by the Constitution or by a law enacted by Parliament; (g) The phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded; (h) With reference to the phrase “Subject to the provisions of this Constitution” in Article 239AA(3), the legislative power of NCTD is to be guided, and not just limited, by the broader principles and provisions of the Constitution; and (i) NCTD has legislative and executive power over “Services”, that is, Entry 41 of List II of the Seventh Schedule because: (i) The definition of State under Section 3(58) of the General Clauses Act 1897 applies to the term “State” in Part XIV of the Constitution. Thus, Part XIV is applicable to Union territories; and (ii) The exercise of rulemaking power under the proviso to Article 309 does not oust the legislative power of the appropriate authority to make laws over Entry 41 of the State List. [Para 164][581-E-H; 582-A-F]

Shiv Kirpal Singh v. VV Giri AIR 1970 SC 2097 : [1971]

2 SCR 197 – held per incuriam.

NDMC v. State of Punjab 1997 (7) SCC 339 : [1996]

10 Suppl. SCR 472; SR Bommai v.Union of India (1994)

3 SCC 1 : [1994] 2 SCR 644 – followed.

Advance Insurance Corporation Limited v. Gurudasmal (1970) 1 SCC 633 : [1970] 3 SCR 881; T.M.Kanniyan v. CIT [1968] 2 SCR 103; Rajendra Diwan v. Pradeep Kumar Ranibala [2019] 17 SCR 1089; RS Nayak v. AR Antulay (1984) 2 SCC 183 : [1984] 2 SCR 495; Union of India v. Prem Kumar Jain (1976) 3 SCC 473 : [1976] Suppl. SCR 166 – relied on.

IK Saksena v. State of Madhya Pradesh (1976) 4 SCC

750 : [1976] 3 SCR 237; Union of India v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl. SCR 131; Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1 : [2017] 5 SCR 160; Amarinder Singh v. Punjab Vidhan Sabha (2010) 6 SCC 113 : [2010] 4 SCR 1105;

Secretary, Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 : [1996] 6 Suppl. SCR 584; SK Gupta v. KP Jain (1979) 3 SCC 54 : [1979] 2

SCR 1184; Ichchapur Industrial Coop. Society

Ltd. v. Competent Authority, Oil & Natural Gas Commission (1997) 2 SCC 42 : [ 1996] 10 Suppl. SCR 416; Ratnaprova Devi v. State of Orissa [1964] 6 SCR 301; State of Bihar v. Maharajadhiraja Sir Kameshwar Singh [1952] SCR 889; State of Haryana v. Chanan Mal (1977) 1 SCC 340 : [1976] 3 SCR 688; A.B.

Krishna v. State of Karnataka (1998) 3 SCC 495 : [1998] 1 SCR 157; B.S. Vadera v. Union of India [1968]

3 SCR 575 and State of Gujarat v. Raman Law Keshav Lal (1980) 4 SCC 653 : [1981] 1 SCR 144 – referred to.