29 Nov 2023 11:04 AM GMT
The Supreme Court on Wednesday (November 29) allowed the Union Government to extend by six months the term of the Chief Secretary of the Government of the National Capital Territory of Delhi, Naresh Kumar, who is otherwise due to retire tomorrow.
The Court held that the Central Government has the power to appoint the Chief Secretary of the Delhi Government and that such power includes the power to extend the term of the superannuating officer. The Court clarified that its views are prima facie in the nature, subject to the adjudication by the Constitution Bench on the validity of the Centre's services law.
A bench led by Chief Justice of India DY Chandrachud, Justices JB Pardiwala and Manoj Misra rejected the plea of the Delhi Government to restrain the Union from extending Kumar's term as the Chief Secretary.
The bench was hearing a writ petition filed by the Delhi Government against the Union unilaterally appointing a Chief Secretary or extending the term of the incumbent without consultation with it.
To turn down the Delhi Government's plea, the bench referred to the recent services law passed by the Parliament (Government of NCT of Delhi (Amendment) Act 2023), which gives Centre overriding powers over GNCTD services. Although the issue relating to the validity of the Act has been referred to a Constitution Bench, the operation of the Act has not been stayed. The bench also pointed out three subjects are Constitutionally excluded from the powers of Delhi Government- public order, police and land. The Chief Secretary has to deal with these excluded matters as well, the Chief Justice highlighted.
Senior Advocate Dr Abhishek Manu Singhvi, appearing for the GNCTD, argued that the Chief Secretary is dealing with hundred other matters, which are within the exclusive domain of the Delhi Government, and hence, the GNCTD should be having a voice. However, the bench refused to accept the argument that the functions of the Chief Secretary should be split in that manner.
"Entries 1, 2 and 18 are outside the purview of GNCTD. Chief Secretary, inter alia, performs functions under 1, 2 and 18 and you cannot bifurcate the functions as those which fall and those which don't under those entries, as you have tried do," CJI told Singhvi.
In the alternative, Singhvi argued that the Centre has no power to extend the term of the superannuating officer. "Can there be any justification in appointing a person in whom there is zero confidence by the government? And why should that person's post be extended?". The extension of the tenure of the Delhi's Chief Secretary is unprecedented and the appointment has always taken place in consultation with the State Government. "There was a lady Chief Minister in Delhi. This never happened...5 years of Government A in Delhi was matched by Government B in centre...." Singhvi said.
"We can't postulate that in those 5 years only government of Centre was reasonable, even the state government was reasonable. Now both of you can't see eye to eye," came the CJI's quick retort.
As a concession, Singhvi suggested that the Chief Minister and the Lieutenant Governor can sit with five to ten names and the Government will accept a name picked by the LG, instead of extending the incumbent's term. Referring to the judgment in EP Royappa's case, Singhvi said that Chief Secretary is an important functionary, a "linchpin" of the administration.
Does Centre's power to appoint includes power to extend?
The Central Government relied on Rule 16 of the All India Services (Death cum Retirement Benefit) Rules 1968 to justify the power to extend the term of the Chief Secretary. This Rule provides that the term of a superannuating Chief Secretary can be extended for a period of six months on the recommendation of the State Government with the prior approval of the Central Government. Solicitor General of India Tushar Mehta argued that in the context of officers belonging to the AGMUT cadre, the State Government should be read as Central Government. SG also referred to the Government of India (Allocation of Business) Rules 1965.
According to Section 45A(d) of the GNCTD Act , "Chief Secretary" means the "Chief Secretary of the Government of National Capital Territory of Delhi appointed by the Central Government", the SG pointed out. Countering Singhvi's submission that this was merely a definition clause, SG said that this provision clarified that the power of appointing the Chief Secretary was with the Central Government.
He added that there are as many as 57 instances of extensions being granted to superannuating Chief Secretaries of various States.
Senior Advocate Sanjay Jain, appearing for the Delhi LG, referred to the paragraphs in the 2023 Constitution Bench judgment which underscore that GNCTD's powers over services do not extend to subjects of land, public order and police.
Court's observations in the judgment
In the judgment, the bench noted that Rule 55(2) of the Transaction of Business of the Government of National Capital Territory Rules 1993 provided that LG must make a prior reference to the Union Ministry regarding the proposals for the appointment of the Chief Secretary, Commissioner of Police, Secretary (Home) and Secretary (Land). This is for the reason that these subjects are excluded from the Delhi Government's purview.
The GNCTD Amendment Act 2023 also provided that officers dealing with the excluded subjects need not be appointed following the consultative mechanism through the National Capital Civil Service Authority. This is by virtue of Section 45A(i) inserted to the parent Act.
There can be no dispute about the basic position that the Chief Secretary, being the head of the administration, performs an administrative function over all matters relating to the GNCTD, including the excluded subjects. It would not be either possible or practical to divide the functions of Chief Secretary or bifurcate them between those areas which fall within the domain of GNCTD or those which fall outside.
Since the Chief Secretary performs important functions, it would be far fetched to postulate that the Central Government would be divested of the power to appoint the Chief Secretary of the Delhi Government, the bench held.
The post of Chief Secretary in the GNCTD is a post entrusted with significant functional responsibilities including overall administrative control and supervision over subjects which also stand excluded from legislative domain and executive powers of GNCTD.
The bench further held that Rules 16 of the All India Services (Death cum Retirement Benefit) Rules apply to the officers of the GNCTD and in relation to the officers exercising the functions under the excluded subjects, the Central Government has the power to extend their tenure.
"We conclude that at this stage, bearing in mind the judgement of this court in CB 2 and subsequent developments, the decision of the Union Govt to extend the services of Chief Secretary for 6 months cannot be construed to be violative of law," the bench held.
The bench clarified that the analysis in the judgment is confined to a prima facie evaluation, without entering into issues pending adjudication before the Constitution Bench.