The Centre has brought an ordinance notifying rules for the Government of National Capital Territory of Delhi (GNCTD) regarding the ‘transfer-posting, vigilance and other incidental matters’ in Delhi. Days after the SC verdict which said that the Central Government (LG) has the authority over order, police and land whereas the Delhi Government (AAP) has authority over the transfer, posting and appointment of officials, the Modi government brought in an ordinance amending the GNCTD Act.
Centre brings out ordinance notifying rules for GNCTD regarding ‘transfer posting, vigilance and other incidental matters’ pic.twitter.com/Mk2KgIOa0E
— ANI (@ANI) May 19, 2023
Through the ordinance, a National Capital territory Service Authority has been established by the central government.
The permanent authority would comprise of the Chief Minister of Delhi, the Chief Secretary of GNCTD and the principal secretary of the central home ministry.
It is this authority that would make recommendations with regards to transfers of officials, posting, appointments and the vigilance authority.
The National Capital Civil Service Authority shall have the responsibility to make recommendations for matters related to vigilance and non-vigilance matters for the purpose of disciplinary proceedings and prosecution sanctions against all the Group ‘A’ officers, including the officers of the All India Services and DANICS, serving in the affairs of the Government of National Capital Territory of Delhi but not officers serving in connection with any subject matter.
It is pertinent to note that this amends the verdict of the Supreme Court substantially. The Supreme Court had ordered that all matters related to transfer, posting and appointment of officers was the sole authority of the Delhi Government and not the Central Government. With this ordinance being passed, the Central Govt has essentially changed to rules and the verdict to ensure that there is State and Center collaboration in such crucial matters.
This decision has been taken keeping in mind that Delhi is a Union Territory and the National Capital and the central government has to have an equal say in the administration of the territory.
Background of the case
In 2018, a Constitution Bench of the Supreme Court looked into the special provisions under Article 239AA of the Constitution for the National Capital Territory (NCT). The interplay of the peculiar status of the NCT, the powers of the Delhi Legislative Assembly, and the LG were debated during the hearing. The court said in its judgment that the LG could not act independently without the aid and advice of the Council of Ministers. It further added that LG has to work harmoniously with the elected Government of the NCT.
Based on the judgment by the Constitution Bench, appeals were placed before a regular bench of the apex court in regard to the individual aspects, including the services. On April 14, 2019, the 2-judge regular bench comprising Justice AK Sikri and Justice Ashok Bhushan could not agree on the issue of the services under Schedule VII, List II, Entry 41 of the Constitution of India.
The Supreme Court verdict which now stands void after the GNCTD ordinance passed by the Central Govt
On May 11, a five-judge Constitution bench led by Chief Justice of India (CJI) DY Chandrachud pronounced the verdict in the Government of NCT of Delhi vs Union of India. In the unanimous judgment, CJI said, “unable to agree with Justice Ashok Bhushan in the 2019 split verdict.” The court cleared that the Centre has power over only three subjects which are order, police and land and gave the Government of Delhi the power to create posts, appoint officials and transfer them.
The matter reached the apex court over administrative control over transfers and postings of civil servants in the national capital. The bench comprising CJI Chandrachud, Justice MR Shah, Justice Krishna Murari, Justice Hima Kohli and Justice PS Narasimha reserved its verdict on the matter on January 18, 2023.
The apex court said, “The control over services shall not extend to entries related to public order, police and land.” The court added, “NCTD similar to other states represents the representative form of Government. Any further expansion of Union’s power will be contrary to the Constitutional scheme.” The CJI categorically said that the public order, police and land powers will remain with the LG. He added, “The NCT of Delhi is not similar to the other Union Territories.”
