In Writ Petition (Civil) No 1268 of 2023 -SC- Supreme Court upholds Union Government's power to extend tenure of Delhi chief secretary
Chief Justice Dhananjaya Y Chandrachud, Justice J B Pardiwala & Justice Manoj Misra [29-11-2023]

Read Order: Government of NCT of Delhi v. Union of India & Ors
Chahat Varma
New Delhi, December 6, 2023: In a significant decision, the Supreme Court recently upheld the Union Government's authority to extend the tenure of the Chief Secretary of the Government of the National Capital Territory of Delhi (GNCTD).
In the case at hand, the incumbent Chief Secretary of the GNCTD was due to demit office on superannuation on 30 November 2023. The petitioner, GNCTD, had approached the court on the ground that they had reason to believe that the Union of India would 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 as amended by the Government of National Capital Territory of Delhi (Amendment) Act 2023.
Thus, the petitioner, initiated proceedings under Article 32 of the Constitution seeking: a direction restraining respondents from making a unilateral appointment of the Chief Secretary of the GNCTD or extending the tenure of the incumbent Chief Secretary; and 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 informed the court that the Union Government intends to extend the term of the current Chief Secretary by six months.
A three-judge bench, presided over by Chief Justice Dhananjaya Y Chandrachud, along with Justices J B Pardiwala and Manoj Misra, referred to its previous ruling in the 2023 Constitution Bench case [Govt. of NCT of Delhi Vs Union of India (LQ/SC/2023/610)]. This case addressed the issue of control over ‘services’ related to the National Capital Territory of Delhi (NCTD). The key points highlighted from the earlier decision were emphasized during the proceedings.
a. The subject of 'services' falls within the ambit of the legislative and executive competence of NCTD under Entry 41 of the State List of the Seventh Schedule.
b. However, the legislative and executive power of NCTD over Entry 41 does not extend over services related to the excluded subjects of public order, police, and land.
c. In the absence of a law conferring upon it executive power relating to any subject in the State List, the executive power of the Union Government covers only matters relating to the three entries which are excluded from the legislative domain of NCTD.
d. If Parliament enacts a law granting executive power on any subject which is within the domain of NCTD, the executive power of the Lieutenant Governor shall be modified to that extent as provided in the law.
e. The Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters which fall within the legislative domain of NCTD.
f. NCTD has legislative power over services excluding public order, police, and land. Therefore, the Lieutenant Governor is bound by the decisions of GNCTD on services, save and except for the excluded subjects and as modified by the law.
The bench observed, “At this stage, it must be noted that the reference before the Constitution bench is pending and there is no stay on the operation of the amendment Act. Thus, only a prima facie view is formed on the merits of the rival submissions.”
Following the reference to the 2023 Constitution Bench case, the bench turned its attention to two main issues:
Firstly, the bench examined whether the Union Government possessed unilateral power to appoint the Chief Secretary of NCTD. It was noted that Rule 55(2)(b) of the Transaction of Business Rules mandates the Lieutenant Governor to make a prior reference to the Central Government for the appointment of Chief Secretary, and further action should be taken in accordance with the decision of the Central Government. This indicates the involvement of the Central Government in the appointment process, and the final decision rests with them. The exclusion of the Chief Secretary from the competence of the Government of NCTD, especially in matters related to police, public order, and land, further emphasizes the role of the Central Government in the appointment process.
The second issue pertained to whether the Union Government had the authority to extend the service of the incumbent Chief Secretary. The Union Government relied on Rule 16 of the All-India Services (Death-cum-Retirement Benefits) Rules 1958, arguing that the State Government's recommendation, with prior approval of the Central Government, was required for such extensions. However, the bench highlighted the unique responsibilities of the Chief Secretary in NCTD, including control over subjects falling outside the legislative domain of the GNCTD. It concluded that the restrictions applicable to the grant of an extension under Rule 16 in the context of Chief Secretaries of the States did not strictly apply to the GNCTD Chief Secretary.
The bench further noted that the relief sought by the petitioner, which was to appoint one of the five senior most officers from the pool of officers serving in the AGMUT cadre with the requisite experience of having served as the Chief Secretary in the Government of NCTD, was beyond the scope of powers exercisable by the Court, as it cannot usurp the powers of the appointing authority conferred by law.
Thus, the bench concluded that, at this stage, considering the principles enumerated in the judgment of this Court in the 2023 Constitution Bench judgment and the subsequent developments resulting in the enactment of the amendment to the GNCTD Act 1991, the decision of the Union Government to extend the services of the incumbent Chief Secretary for a period of six months could not be construed to be violative of the law.
The Court also made several observations regarding the role of the Chief Secretary. It was highlighted that the post of the Chief Secretary is of great confidence and is considered a lynchpin in the administration. The Court also emphasized the importance of political neutrality for civil servants, stating that they must abide by the directions of the elected arm to give effect to the principle underlying the triple-chain of collective responsibility.
Furthermore, it was noted that the Chief Secretary performs functions that fall both within and outside the executive competence of the GNCTD. Even though the Chief Secretary is appointed by the Central Government, they are required to comply with the directions of the elected government over matters on which their executive competence extends. The actions or inactions of the Chief Secretary must not put the elected government at a standstill.
With the above observations, the writ petition was disposed of.
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