The Court will decide whether the “Services” relatable to Entry 41 of List II of the Seventh Schedule which pertains to the State Public Services Commissionfrom lie within the legislative and executive domain of the NCT of Delh and whether the same can be exclusively be taken control of by the Central Government as was done vide Notification of the Government of India dated 21.05.2015.
In 2015, the tussle between the Chief Minister of Delhi, and Lt. Governor of Delhi eventually led to a legal controversy on the status of the NCT (National Capital Territory). The issue revolved around the administrative powers of the Lt. Governor of Delhi in light of the special status of Delhi as a Union Territory under Article 239AA of thConstitution.
The Delhi High Court in its judgment delivered on 4th August 2016 held that Delhi continues to be a Union Territory despite Article 239AA. It further held that the special provisions incorporated for Delhi do not overrule the effect of Article 239. Article 239 empowers the Lieutenant Governor to act independently of his Council of Ministers. As a result, all enquiries which were initiated by the Delhi Government without the concurrence of Lt. Governor were declared illegal, such as the enquiries into the issuance of CNG permit to vehicles, a financial enquiry into Delhi and District Cricket Association, among others. The concurrence of the Lt Governor became mandatory for all administrative decisions of Council of Ministers of Delhi.
The Delhi Government had challenged this decision of the Delhi High Court before the Supreme Court and the case was placed before a Constitution Bench.
On 4th July 2018, the five-judge Bench unanimously held that the Chief Minister and not the Lieutenant Governor (LG) is the executive head of the National Capital Territory (NCT) government. Hence, the LG is bound by the aid and advice of the Council of Ministers on all matters where the Delhi Assembly has to the power to make laws. It was further directed that the individual appeals filed in the case of the tussle for power between the Central and State Governments for administrative control over the administration of Delhi woud be heard by a 2 Judge Bench.
The issues involved in these appeals ranged from challenges to the Lt. Governor’s order directing the ACB Police Station not to take cognizance of offences against officials of Central Government, to a notification issued by the Directorate of Vigilance, GNCTD under the Commissions of Inquiry Act, 1952 without placing before the Lt Governor for his views, and the power to implement the Electricity Reforms Act in the capital.
On February 14th, 2019 a 2 Judge Bench comprising Justice A K Sikri and Justice Ashok Bhushan delivered its judgmemt in the individual appeals. Where the powers of decision-making related to electricity reforms and the power to announce a revision in the minimum rates for agricultural land, as well as those of appointing public prosecutors were held to reside in the elected government of the NCT of Delhi, the Central government was held to have control over the Anti-Corruption Bureau and the authority to post and transfer Grade 1 and Grade 2 officers as well as the power to institute a commission of inquiry.
However, owing to the differing opinions of the two Judges as far as control over services, more specifically those in any Entry either in List II or in List III, the case has now been referred to a larger Bench with respect to this limited issue.
Whether the exclusion of “Services” relatable to Entry 41 of List II of the Seventh Schedule from the legislative and executive domain of the NCT of Delhi, vide Notification of the Government of India dated 21.05.2015 is unconstitutional and illegal?
Whether the Notifications dated 21.05.2015 and 23.07.2014 issued by the Govt. of India, Ministry of Home Affairs empowering the Lt. Governor to exercise the powers in respect of matters connected with 'Services' and directing the ACB Police Station not to take cognizance of offences against officials of Central Government are valid in law?