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SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, CJI., J.B. PARDIWALA, MANOJ MISRA, JJ.
Government of NCT of Delhi - Petitioner
Versus
Union of India & Ors. - Respondents
Writ Petition (Civil) No. 1268 of 2023
Decided On : 29-11-2023
(A) Government of National Capital Territory of Delhi Act 1991 – Sections 41 read with 45A(d) read with 45H(2) – Constitution of India – Article 239AA(3)(a) – Transaction of Business of the Government of National Capital Territory of Delhi Rules 1993 – Rule 55(2)(b) – Appointment of Chief Secretary of NCTD – Though Government of NCTD is appointing authority for all posts in NCTD in terms of 1954 Rules, Transaction of Business Rules places appointments to posts of Chief Secretary and Commissioners of Police, Secretary (Home) and Secretary (Lands) outside competence of the GNCTD – Chief Secretary has, in addition, been brought within purview of Rule 55(2)(d) for reason that Chief Secretary of GNCTD exercises overall supervision and control over all departments including departments which are relatable to excluded subjects from Entries 1, 2 and 18 of List 2 of State List which fall outside purview of GNCTD – Lieutenant Governor while exercising power under Rule 55(2)(b) is required to act at their discretion without aid and advice of Council of Ministers – Central Government has a veto over proposal in terms of Rule 56 – GNCTD only has power to propose a candidate for appointment as Chief Secretary – Lieutenant Governor is bound to refer proposal to Central Government and decision of Central Government on the proposal is final – Chief Secretary, as head of administration, exercises jurisdiction of an administrative nature over entirety of subjects which fall within domain of executive functions of GNCTD which would include those subjects (Entries 1, 2 and 18 of List II) over which Legislative Assembly and State Government do not have jurisdiction. (Paras 17, 18, 23, 24 and 25)
(B) All India Services (Death-cum-Retirement Benefits) Rules 1958 – Rule 16 – Power of Central Government to extend service of an incumbent Chief Secretary – Rule 16 of 1958 Rules is a general rule which is applicable to members of service holding post of Chief Secretary across all States – The provision does not make a distinction between Chief Secretary serving in NCTD and Chief Secretaries serving in other States though the procedure for appointment of Chief Secretary of NCTD is different from procedure for appointment of Chief Secretaries in other States – Post of Chief Secretary in GNCTD is a post entrusted with significant functional responsibilities including overall administrative control and supervision over subjects which stand excluded from legislative domain and executive powers of GNCTD – Position of Chief Secretary of GNCTD is significantly distinct in that Chief Secretary performs delegated executive functions which straddle both subjects which fall within executive and legislative competence of GNCTD as well as those which lie outside – Consequently, restrictions which operate in relation to grant of extension under Rule 16 of 1958 Rules in relation to Chief Secretary of one of State Governments would not stricto senso apply in relation to GNCTD – Decision of Union Government to extend the services of incumbent Chief Secretary for a period of six months cannot be construed to be violative of law – However, post of a Chief Secretary is uniquely placed – Chief Secretary performs functions which fall both within and outside executive competence of GNCTD – Chief Secretary though appointed by Central Government, must comply with directions of elected government over matters on which their executive competence extends – Actions (or inactions) of Chief Secretary must not put elected government at a standstill. (Paras 32, 33 and 35)
Facts of the case:
Two issues fall for consideration of this Court: firstly, whether Union Government has unilateral power to appoint Chief Secretary of NCTD; and Secondly, whether Union Government has power to extend service of incumbent Chief Secretary.
Findings of Court:
Analysis in this order is confined to evaluation of case at present stage without entering into any conclusive determination of issues which are pending for adjudication before Constitution Bench.
Result : Writ petition disposed of with observations.
JUDGMENT :
Dhananjaya Y. Chandrachud, CJI.
1. The incumbent Chief Secretary of the Government of the National Capital Territory of Delhi (GNCTD) is due to demit office on superannuation on 30 November 2023. The petitioner approached this court on the ground that they have reason to believe that the Union of India will unilaterally appoint the Chief Secretary in the exercise of the power under Sections 41 read with 45A(d) read with 45H(2) of the Government of National Capital Territory of Delhi Act 1991,1[“GNCTD Act 1991”] as amended by the Government of National Capital Territory of Delhi (Amendment) Act 2023,2[“2023 Amendment Act”]. The petitioner initiated proceedings under Article 32 of the Constitution seeking :
b. An order appointing one of the five senior most officers serving in the AGMUT cadre with the requisite experience of having served in the GNCTD.
The Solicitor General has apprised the Court that the Union Government proposes to grant an extension of six months to the incumbent.
2. Article 239AA(3)(a) of the Constitution stipulates that the Legislative Assembly shall have power to make laws with respect to any matter in the State List or Concurrent List insofar as any such matter is applicable to Union Territories except for certain excluded matters. Among the excluded matters are Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of the State List insofar as they relate to Entries 1, 2 and 18. Consequently, the subjects of (i) Public order (Entry 1); (ii) Police (Entry 2); and (iii) Land (Entry 18) lie outside the legislative domain of the Legislative Assembly. The division of legislative power between NCTD and the Union of India as stipulated in Article 238-AA(3) is summarized below :
b. Parliament shall have the power to enact laws for NCTD with respect to all entries in the State List and Concurrent List,4[Article 239-AA(3)(b)];
c. If any provision of a law made by the Legislative Assembly of NCTD is repugnant to a provision of a law made by Parliament, the law made by Parliament shall prevail.,5[Article 239-AA(3)(c)]
3. Two Constitution Benches of this Court have dealt with the constitutional status imparted to the National Capital Territory by virtue of the provisions of Article 239AA of the Constitution. These are :
(ii) Govt. of NCT of Delhi Vs. Union of India, [(2023) 9 SCC 1 – “2023 Constitution Bench”]
4. The second decision of the Constitution Bench (2023 Constitution Bench judgment) specifically dealt with control over “services” pertaining to the National Capital Territory of Delhi (NCTD). The subject of services is comprised in Entry 41 of the State List to the Seventh Schedule (“State Public Services; State Public Services Commission”). The 2023 Constitution Bench judgment held that Article 239-AA(3)(a) does not exclude the legislative power of NCTD over entries other than those expressly excluded in the provision, and thus, NCTD has legislative competence over “services”. Since executive power is co-extensive with legislative power, this Court held that NCTD will have executive power over “services”. An incidental issue that arose was with respect to the scope of the executive power over entries over which bo
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