SC's May 11 ruling on control of civil services in Delhi suffers from errors, says Centre seeking review

The SC had, on May 11, given the Delhi government 'legislative and executive power over services'

The Union government on Saturday approached the Supreme Court seeking review of May 11 judgement, giving the Delhi government full control on transfers and postings of the civil servants, including IAS officers, working for the National Capital Territory.

A day after promulgating an ordinance setting up a permanent authority known as the National Capital Civil Service Authority, the Centre filed the review petition contending the judgement suffered from several errors apparent on the face of record, as it also ignored that working and functioning of the capital government affected the nation as a whole.

The plea said the judgement has not dealt with the arguments of the Union government that the Constitution has never contemplated a separate service cadre for Union territories. “This is for the simple reason that a Union Territory is a mere extension of the Union of India and persons working in Union territories are working in services and posts in connection with the affairs of the Union,” it said.

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The review petition also said, "To the extent the said judgment holds that the ideal conclusion would be that GNCTD ought to have control over “services”, subject to exclusion of subjects which are out of its legislative domain as the ministers who are charged with formulating policies in the territory of NCTD would be excluded from controlling the civil service officers would be anti-democratic is completely self-contradictory, in ignorance of the submissions made before the bench and further ex-facie an error apparent."

Among other grounds, it also contended the judgement failed to trace the constitutional amendments which make it evident that the Parliament never intended for the Entry for "services" to be applicable to Union Territories, since the constitutional scheme does not envisage any separate services for a Union Territory.

"The judgement further proceeds without appreciating that the nominee of the President, the Lt Governor or the Central Government, both are also manifestations of democracy when compared to the elected government of Delhi," it said.

The central government is administered by the people of the entire country who have a vital and preponderant interest in the governance of the capital of the entire country, it added.

The Centre said the apex court has itself held that 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). “Despite holding the same, the said judgement ignores the clear exercise of power of the Parliament over the subject matter,” it said.

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The Centre further stated the judgement suffered from an error apparent on the face of the record as it wholly ignored that DANICS (Delhi, Andaman & Nicobar, Lakshadweep, Daman and Diu and Dadra and Nagar Haveli (Civil) Services) services are a feeder cadre for All India Services namely Indian Administrative Services.

The recruitment to all the Union Territories for these Group B posts is common and the selection is through UPSC. They are also centralised and the appointing authority is the Ministry of Home Affairs, it pointed out.

The plea said that the need for review also arose on account of the fact that the May 11 judgement did not deal with the conflict between the 2018 Constitution bench judgement and the question of reference to a larger bench.

It also said Delhi, despite being a Union Territory, and thus not a full-fledged State, has been elevated to the status of a State, which is in the teeth of the nine judge judgment in NDMC vs State of Punjab (1997), wherein it was clearly held that notwithstanding the 69th Amendment introducing a legislative assembly for Delhi, the NCT of Delhi remains a Union Territory.

The Centre also contended the judgement has the effect of destroying the basic structure of the Constitution, wherein with the effect of conjoint reading of Article 73, 239AA and 246, the Union has overriding legislative as well as executive powers in respect of a Union Territory which is not a ‘State’.